Swaziland Electricity Company v Msibi (13/11) [2011] SZSC 28 (31 May 2011);

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE       CIVIL APPEAL CASE NO: 13/11

 

In the matter between:

 

SWAZILAND  ELECTRICITY             

COMPANY                                                  APPELLANT

 

And

 

CEBSILE MSIBI                                          RESPONDENT

 

 

CORAM:                                                     RAMODIBEDI, CJ

                                                                   TWUM, JA

                                                                   EBRAHIM, JA

                  

Counsel for Appellant                                Adv. Z.F. Joubert SC (with

                                                                      Mr. Z. Shabangu)

Counsel for Respondent                           Mr. M. Mabuza

 

Summary

Civil Law and Procedure; The Electricity Act 2007; Post-paid customer; allegation of non-payment of arrears amounting to E33,664.42; disconnection of supply; estimated bills for 42 months, irregular or unlawful; breach of Section 18 (2) of the Constitution; torture or inhuman and degrading treatment suffered by customer; Appeal to Supreme Court of Appeal; decision of High Court reserved; Appeal allowed;  Customer not a defaulter in the circumstances; Constitutional remedy disavowed; costs on Attorney and client scale refused.

 

 

 

JUDGMENT

 

 

DR. S. TWUM  J.A.

 

[1]    This is an appeal from the judgment of M.C.B. Maphalala J. sitting in the High Court at Mbabane.  The judgment was delivered on 9^th March 2011.

 

[2]    Until about March or April 2010, the Respondent was a post-paid customer of the Appellant under Account No. 10000397387 pursuant to a contract of supply of electricity she has entered into with the Appellant many years before.  It was a term of the said contract that the Appellant would supply her with domestic electricity at a cost calculated on the basis of her consumption.  This consumption would be determined by a meter affixed to her supply in her house.

 

[3]    In or about September or October 2009 the Respondent received a bill for the sum of E39 664.32 said to be the cost of electricity supplied to her; apparently for one month.  She did not take this lying down.  She made frantic efforts to get an explanation from appropriate officers in the Appellant’s unemployment.  Not long after, she received another bill for E15, 268.10.  This was different from the previous one in that it was an estimated bill said to be for the period between 11^th August 2009 and 21^st August 2009.  The “arrears” the Respondent was expected to pay had therefore risen to E48, 982.82.  She was beside herself with grief and anxiety.  She needed an explanation quickly for the upsurge in her apparent consumption of electricity.

 

[4]    The Respondent lodged complaints with Appellant.  She did not receive any satisfactory explanation for the exhorbitant electricity consumption yet the Appellant did not relent in its demand for the payment of the exhorbitant bill.  Between 2^nd December 2009 and 11^th May 2010, she paid various sums amounting to E7, 200.00.  The Appellant was not appeased.  It stopped the supply of post-paid electricity to her premises on 11^th March 2010.   She requested to be place in prepaid accounting.  The change was effected about the middle of March 2010 but the Appellant’s officers would not sell her prepaid vouchers unless and until she had paid the unexplained exhorbitant bill. The Respondent got her attorney to intervene on her behalf.  But even after the intervention the only concession the Appellant made was to sell her electricity vouchers until 15^th November 2010 after which date it would cease to do so unless the arrears were paid.  To be  fair, the Respondent was able to buy prepaid electricity on the 29^th October 2009 and this continued for about seven (7) months.

 

[5]    Unable to contain the situation any longer, the Respondent instructed her attorneys to apply to the High Court for redress.  On 9^th November 2010 the Respondent (the Applicant, then) filed a Notice of Motion for an order in the following terms:

 

1. That the Rules relating to form, service of process and time limits be dispensed with and that this matter be enrolled as one of urgency.

 

1. Reviewing and setting aside the Respondent’s unlawful decision not to sell electricity vouchers to the Applicant in respect of her house along Mabhengu Street off Dobson Road in Mbabane, District of Mbabane under meter No. 070718034285.

 

1. Directing the Respondent to sell electricity vouchers to enable supply of electricity to Applicant’s house along Mabhengu Street in Mbabane forthwith.

 

1. That prayer 3 operates effectively with immediate effect pending final determination of this matter.

 

1. Directing the Respondent to pay the applicant’s costs Attorney-and –client scale.

 

1. Further and/or alternative relief.                                                                                                                                                                                                                                                                                                                                                                                                                                                              

[6]    On 9^th March 2011 His Lordship gave judgment in favour of the Respondent and made the following order:

 

1. The Respondent (the Appellant herein) is hereby directed forthwith to sell electricity vouchers to the Applicant in respect of her house in Mbabane under Meter No. 070718034285.

 

1. The Estimated Bills issued by the Respondent are both unlawful and unconstitutional.

 

(c)    The Respondent is directed to pay costs of suit at a scale between Attorney and Client.

 

[7]    The Appellant was aggrieved and dissatisfied with the entire judgment and appealed against it to this Court. It filed some 16 or so grounds of appeal.  Contrary to rule 6 (4) of Court of Appeal Rules requiring that grounds of appeal should be set at concisely, many of those grounds were long–winded and sometimes, even argumentative.  (See pages 178 to 184 of the Record).  In the circumstances, I will set out as concisely as possible, those grounds as follows:

       

       

1. The Learned Judged erred in not dismissing the application with costs.

 

1. The Learned Judge erred in finding that the estimation of bills is unlawful, unconstitutional and a dereliction of duty.

 

1. The Learned Judge erred in not finding that there was an adequate satisfactory remedy available to the Respondent for the resolution of the dispute.

 

1. The Learned Judge erred in not finding that the Respondent was in arrears with payment of the actual bill which was due and payable by 2^nd September 2009.

 

1. The Learned Judge erred in holding that it is mandatory for the Appellant to provide to its customers with actual meter readings on a monthly basis.

 

1. The learned judge erred in giving a wide interpretation to the provision of Section 23 of the Electricity Act.

 

1. The Learned Judge erred in not holding that there was a material dispute of fact rendering the application incapable of resolution on the papers.

 

1. The Learned Judge erred and misdirected himself in the exercise of this discretion to award punitive costs on wrong principles and without any factual basis.

 

[8]    When the Appellant was served with the application it gave notice that it would be opposed.  It raised a number of defences; some on the merits and others on points of law, or alleged non-compliance with certain rules of procedure.  One major point in limine was that the application was not urgent and should therefore be dismissed.  The record shows, however, that during the hearing of the application on 7^th December 2010, the appellant gave an undertaking in Court that it would sell electricity vouchers to the Respondent pending the finalization of the matter.  The urgency point was accordingly abandoned.

 

[9]    The next matter was the Appellant raised was that the Motion was premature in that the Respondent ought to have applied to the Energy Regulatory Authority to have her complaint resolved before applying to the Court for relief.  The Respondent’s response was two-fold.

 

1. That it was not mandatory for her to have approached that Authority before applying to the Court.  A reference to section 23 (2) and 40 of the Electricity Act 2007 does not support the Appellant’s argument.  In particular, section 40 which deals with Resolution of Dispute provides machinery for arbitration, where the Authority acts as arbitrator.

 

1. The other response was that in any event, the Energy Regulatory Authority was not in a position to deal with her complaint as it had no offices or staff in the area.  In the circumstances the Respondent was entitled to apply to the court for the more sure and expeditious remedy of review.

 

In my view, the learned Judge a quo correctly dismissed these points.

 

[10]  On the merits, the quintessential defence raised by the Appellant was that the Respondent has failed to settle her electricity bills submitted to her by the Appellant.  Further, an oral agreement had been made between the Appellant and the Respondent whereby the Respondent had agreed to pay E500.00 each month in addition to her current bills to liquidate her said arrears and that as she stopped those payments she was a defaulter.  Consequently, the Appellant was entitled to disconnect her house pursuant to section 52 of the Electricity Act; (No. 3 of 2007). 

 

[11]  The Respondent countered this defence by denying the existence of any such oral agreement.  Her version was that those payments were made on her own initiative to obviate the further aggregation of arrears when the impasse was finally resolved.  This matter is fully discussed above.

 

[12]  In my opinion this appeal fails or succeeds upon a consideration of grounds – Ground 4 which I now proceed to consider.

 

        Ground 4

“The Learned Judge erred in not finding that the Respondent was in arrears with payment of the actual bill which was due and payable by 2^nd September 2009.”

 

The intractable issue that divided the parties in the dispute was whether or not the Respondent owed arrears for payment for the electricity consumed on her premises.   The entire saga commenced when she receive a bill in or about September or October 2009 for the Sum of E39, 644.32 said to be the cost of electricity supplied to her house.  She immediately sought from the Appellant an explanation for that bill.  The answer the Respondent received sounded like a conundrum. Officers of the Appellant alleged and maintained that the amount of E39, 664.32 was in respect of actual metre readings for 42 months.  It was also the Appellant’s case that the meter in the Respondent’s house was in good working order and that it was read by the meter-reader every month.  It was said two officers explained to the Respondent that during those 42 months, the consumption in her house was estimated but prior to her receiving the bill for E39, 664.32 actual consumption the error of estimate billing was rectified.  What was not explained was the nature of “this error” of estimate billing and why should the error have been allowed to fester for 42 months. 

 

Further, if this explanation was available, how come the Respondent pressed and pressed for it and nobody gave it to her.  Pages 92–109 contain a bundle of 18 exhibits referred to as “SS1”.  They were exhibited by the Appellant.  Each one is headed: Account Billed Reading Enquiry. These do not make easy reading. But it is clear that they attest to some sort of investigation into the Respondent’s bills.  There is an exhibit “CM1” (page 17 of the Record) which states on the face of it that the information thereon is the actual reading of electricity consumption in the Respondent’s house from 30^th June 2009 to 11^th August 2009.  Surely, the power consumed on the Respondent’s premises for one and a half months could not be E39, 664.42.

 

[13]  Be that as it may, Annexure “CM2” which appears to have covered the period 11^th to 31^st August 2009, gave a consumption of E15, 268.10.  This exhibit states that the figure is estimated.   Why that should be so soon after actual readings were accessed, is difficult to fathom.  In my view the Respondent’s complaints was not feigned, contrived or spurious.  It was not calculated to over-reach the Appellant.  I am persuaded that she honestly believed that she had not defaulted in the payment of her bills and that her concerns were not being sympathetically addressed by the Appellant.

 

[14]  I am persuaded that the allegations that she had come to some oral agreement to pay the exhorbitant bill alleged to have been actual recordings of her meter was not made out.  One important piece of evidence stood against it.  If, indeed such an agreement had been reached, a standard Form Contract, Annexure “CM11” (page 133), would have been used.  This form is meant to be completed and signed by customers in acknowledgement of their outstanding electricity bills.  Indeed, she conceded that the form was given to her but she refused to sign it because she disputed the arrears.

 

[15]  The record shows that in the end the real reason for the Respondent’s anguish came out.  Somebody in the Appellant’s employment had committed an error in respect of her billing.  It was after the Respondent’s complaints that investigations were conducted into the meter readings on the Respondent’s premises.  This revealed that for 42 months, previous amounts which has been charged to her were estimates.  She did not know this.  This was highly irregular and impacted adversely on her.  The error was said to have been rectified after the meter reading was conducted in August 2009.  It was most unfair for the Appellant to have admitted this error and then proceeded to demand that the Respondent pays the consequences of its own error by 2^nd September 2009. 

 

[16]  Thereafter, there was a constant refrain from all scheduled officers in the Appellant’s employment that unless the Respondent paid that sum, her electricity supply would be disconnected.  It was in the same vein that Mrs Masangane, the Customer Services Manager tried to cajole the Respondent into building herself to pay the bill E33, 664.32 by a so-called oral agreement.  There is no evidence anywhere in the record that the Appellant explained to the Respondent that somebody in their employment had negligently allowed an estimate bill situation which in the nature of things, should be a temporary expedient to persist for 42 months. That was the trouble – not that the Respondent was a “defaulter.”  After all, section 53 (1) provides that the value of supply shall be ascertained by means of an appropriate meter fixed an connected with the service lines in such manner as may be prescribed by rule of the Authority.  In my view, the failure or refusal of the Respondent to settle that huge upsurge in her bill was justified.  The claim by the Appellant that she was in default was not made out and there was therefore no justification for the Appellant to have disconnected her or to refuse to sell her prepaid vouchers.

 

[17]  In her Founding Affidavit the Respondent stated that  he period in which she did not have electricity was one of the most traumatic in her life.  (See page 11 paragraph 19)  She said she had to make expensive  her family.  She also said that her two (2) children could not study in the evening as they were accustomed to doing because of inadequate lighting provided by candles.  She summed it all up all saying that suddenly even going home became a dreadful experience generally because virtually every meal or leisure was dependant on the supply of electricity.

[18]  His Lordship in the High Court took a poor view of the Appellant’s performance in relation to the management of, and billing for, Respondent’s supply of electricity.  He said the Electricity Act, 2007 did not anticipate estimated bills which by their very nature violated Section 18 (2) of the Constitution in as much as they subjected the consumer to inhuman and degrading treatment. In my view such practice was probably irregular if the persisted for a long time.  But I am not persuaded that that practice, ipso facto, subjected the Respondent to torture, in human and degrading treatment.  Similarly, I do not think there was enough evidence on record out of which one could conclude that  the  Service  Manager’s tardiness in responding to the Respondent’s complaint, was arrogant, reprehensible and deplorable.  It may well be due to pressure of work on her time as she stated in her defence

 

[19]  This is not to say that the Respondent did not suffer some social deprivation or economic loss.  I have expressed the view above that the Appellant was substantially responsible for the Respondent’s predicament.  There was clearly inadequate or improper supervision of its Managers.  For example, the Technicians Supervisor was himself unsure why the Respondent’s bill was being estimated when there was nothing wrong with the meter which was being read regularly by meter-reader.  Yet he did nothing about it.  Nobody even noticed that the practice of issuing estimated bills had endured for an inordinately long time.  And in any event, what was done with the meter readings which were apparently regularly collected?

 

In my view the Constitutional remedy referred to by the Judge a quo does not sit too well on the facts.  I will therefore not take it into consideration generally, or in assessing costs.  The decision of this court is that the appeal succeeds on the main ground that the Respondent had not defaulted in paying her “arrears” of E39, 664.42.  I award costs to the Respondent on the ordinary scale, in this Court.

 

DELIVERED IN OPEN COURT AT MBABANE THIS 31^ST DAY OF MAY 2011.

 

 

 

                                                        DR. SETH TWUM

                                                        JUSTICE OF APPEAL

 

 

 

I agree:                                             M.M. RAMODIBEDI

                                                        CHIEF JUSTICE

 

 

I agree:                                             A. EBRAHIM J.A.

                                                                JUSTICE OF APPEAL