Burden of proof on municipality

2017-11-22 06:00
Stacey Bartlett

Stacey Bartlett

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Question:

I have really tried to cut down on my water consumption. It has been very low over the past year.

However, over the past three months, my municipal water accounts have suddenly more than tripled.

Knowing this cannot be right, I queried my accounts with the municipality. I was told that the consumption was correct according to my water meter and that I must pay or my water would be cut off.

The only explanation I have is that the water meter is not working correctly. But who is responsible for verifying this?

Answer:

Our courts recently had to address a similar set of facts in the case of Euphorbia (Pty) Ltd t/a Gallagher Estates v City of Johannesburg.

In this case, the applicant (Galla­gher Estates) was sued by the municipality for several million rand which the municipality alleged was owed to it as a result of water and sewage charges due and payable by Gallagher Estates to the municipality.

Gallagher Estate’s response was that the charges were based on a faulty water meter and, accordingly, that these amounts were not lawfully owed.

One of the issues before the court was whether the duty of proving that the consumer was incorrectly billed lies on the consumer or whether proving that the consumer was correctly billed lies on the municipality.

In this case, it was found that Gallagher Estates was legally not allowed to remove and test the meter, because the legal entitlement was reserved for the municipality.

Accordingly, because the applicant was not in the possession of all the information that it needed to prove that the meter was not functioning properly, it would be unfair in law to burden the applicant with the responsibility.

Due to the fact that only the munici­pality was legally entitled to remove and test the meter, it would be much easier for the municipality to prove that the meter was working than for the consumer to prove that it was not.

From this case it can be deduced that, in metering disputes with a municipality, it is not the consumer’s responsibility to prove that the charges billed are wrong or based on a non-functioning meter.

Rather, it is the municipality’s responsibility to first prove that the charges are correct and based on a functioning meter.

If a consumer disputes the alleged consumption and lodges a query, the burden then rests on the municipality to investigate the issue and, if necessary, the meter, to confirm whether the alleged amounts billed are correct.

In your case, we would advise lodging a formal query with the municipality to investigate the meter.

Should the municipality not adhere to the request, your attorney can inform the municipality of its responsibility to do so as stipulated in the above case.

– Stacey Bartlett, director, Pha­tshoane Henney Attorneys

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