It happens from time to time that consumers are faced with utility bills from the local authority which are manifestly incorrect and/or out of proportion with the regular bills. Should this happen, the consumers find themselves in a predicament. They can refuse to make payment and dispute the correctness of the bill, in which event they run the risk that the municipal services to their property may be disconnected, or they can pay the bill and thereafter declare a dispute. The dispute resolution process can also be a long and tedious affair, with the consumer in the unenviable position of not having access to the resources required to substantiate his or her claim.
In the recent Court case of Euphorbia (Pty) Ltd t/a Gallagher Estates v City of Johannesburg (A5052/2015)  ZAGPPHC 548, handed down on the 17th of June 2016, the court considered the question regarding the onus of proof in respect of the accuracy of a services account. Does the consumer have to prove that the account is wrong, or does the municipality have to prove the correctness of the account?
The Appellant (Gallagher) was sued by the municipality for several million rand which the municipality alleged, was owed to them in respect of, inter alia, water consumption. Gallagher alleged that the water meter was faulty and requested that the meter be tested by the municipality. The municipality duly removed the water meter, tested it, and reported it to be functioning correctly. After testing the meter the municipality disposed of the accurate water meter. Gallagher kept on paying the municipal bill, under protest and without admission of liability, to ensure that the water was not disconnected pending the outcome of the dispute. It was contended by the municipality that Gallagher had to prove that the amount was incorrect.
It was held by the Court that the municipality had the onus of proof in regard to the accuracy and correctness of the meter readings on which the account was based. The learned Judge furthermore found that the considerations of policy, practice and fairness, impose the onus on the municipality to prove the correctness of its own meters. It would be unreasonable to expect from the consumer, after he raised a bona fide (in good faith) defense, to prove aspects which fall within the knowledge of the municipality and to which only the municipality’s employees and/or contractors have access. It would be unfair in law to burden the consumer with the responsibility of proving that the meter was not functioning correctly.
The consumer will however have to dispute the account by raising a bona fide defense of incorrectness of the account.
Conclusion: The Judgment is a victory for the consumers. Once a consumer has raised a bona fide defense the amount is incorrect and/or the meters are not functioning properly, the onus to prove the disputed amount shifts to the Municipality. With this said, the consumer will then be able to force the municipality to reconnect the utilities by approaching the Court for an interdict on an urgent basis.
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