to supply, or is actually supplying, electricity; or, if there is no occupier, the person who has entered into a current valid agreement with the Municipality for the supply of electricity to the premises; or, if such a person does not exist or cannot be traced or has absconded or for whatever reason is not able to pay, the owner of the premises.”
A tenant-- as‘ consumer’-- who moves onto a property after transfer can only be liable for electricity he or she has consumed at the property, and for the period he or she has been in occupation. It would be entirely unreasonable for a municipality to attempt to enforce a long-standing pre-existing electricity debt-- or indeed“ any debt” as suggested in the editorial-- against a tenant who patently did not live at the property the time charges factually accrued, especially since the very existence of historical debt ought to have been raised by the municipality prior to the issuing of the clearance certificate. To argue otherwise does not accord with any rational purposive interpretation of the Systems Act.
In any event, even if the by-laws do, in fact, entitle a municipality to go after such a tenant for payment of historical debt, but the tenant had‘ prudently’ insisted on an indemnity clause, as advised in the article, the clause would not assist to overcome the municipality’ s
claim. This is so because, whatever the true effect of section 118 might be, one cannot contract out of statutory liability. To put it another way, should the effect of the judgment be that tenants can be held liable for historical debt, an indemnity clause would be toothless and ineffective as legislation will always supersede such a contractual provision.
As to the broader effect of section 118, I am inclined to favour the dissenting interpretation in Tshwane, succinctly stated by Zondi JA:“ If it had been intended that the security created by s118( 3) in favour of the municipality for the payment of its historical debt should continue to exist even beyond its sale... one would have expected the legislature to have used precise and definite language to give effect to that intention. And the fact that no such language occurs in s118( 3) is a strong argument in favour of the view that the common law rights of the owners – to obtain a clean title – who obtain transfer of the burdened property through a sale in execution were not taken away. In my view this is a sensible meaning of s 118( 3).”
RESOURCES
Marlon Shevelew and Associates
Developing Future Cities
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