Court orders power to large North mall to be cut off
Tshwane said that by January 2022 an amount of R24-million was owed by Zambezi Retail Park’s body corporate.
Six sectional units of a large retail park in the north of Pretoria will have to source power from alternative sources after the Supreme Court of Appeal (SCA) recently overruled a high court decision ordering Tshwane to restore the centre’s power supply.
The recent SCA judgment was handed down by judges Yvonne Mbatha, Wendy Hughes, Fayeeza Kathree-Setiloane, Baratang Mocumie and acting judge Raylene Keightley after a 2022 court decision from the high court in Pretoria.
The Zambezi Retail Park shopping centre, a large commercial property in Derdepoort on the corner of the R573 Moloto Road and R513 Sefako Makgoto Drive, is partly run by Vresthena (Pty) Ltd through a sectional title plan.
Vresthena operates sections1 to 4, 7 and 8 in the centre.
The SCA on April 18 set in motion orders for Tshwane to disconnect power due to an appeal of a decision made by the high court.
The SCA found that “a deliberate non-payment of services had been occurring”.
Tshwane cited in court documents that by January 2022, an amount of R24-million was owed by the Zambezi Retail Park body corporate.
The non-payment stems from 2018 and 2022, due to the continuous failure of the body corporate to pay for services.
Tshwane at the time implemented credit control measures, which included the disconnection of electricity in an attempt to collect the outstanding revenue.
These measures were however resisted by Vresthena during the latter period and the company filed an urgent application in the high court.
Vresthena sought an order compelling Tshwane to accept and reconsider its application for a separate electricity connection for its sections of the retail park and sought restoration of the electricity and water supply.
On June 20, 2022, the high court granted the urgent order interdicting Tshwane from implementing its credit by-laws and terminating the electricity supply to the Zambezi Retail Park Centre.
The SCA however overruled the decision last month.
“Vresthena has not given any reasons why the body corporate has failed to make payment for the consumption of the electricity in the Retail Park. There was no averment (formal statement) by Vresthena that, they, as owners of various sections, have made payments to the body corporate, nor compelled the body corporate to perform its mandate.
They simply allege that the body corporate is dysfunctional and expect the municipality to regulate the body corporate’s affairs. A municipality has no right to interfere in the affairs of the Sectional Titles Scheme.
“I find it disturbing that instead of compelling the body corporate, whom Vresthena cited as a second respondent, to perform its mandate, it failed to do that,” read the judgment.
It added that Tshwane was enjoined to implement the credit and debt collection measures against the body corporate and terminate the supply of electricity to the retail park.
“The order of the high court failed to take this into account. It assumed, despite the history of ongoing non-payment over many years, that Vresthena and the other owners had a right to receive electricity without imposing the reciprocal obligation on the owners for payment of the substantial arrear amount. It even sanctioned the illegal reconnection of electricity by civilians other than the city.”
Tshwane spokesperson Lindela Mashigo said, in support of municipal obligations, the Supreme Court of Appeal upheld the arguments and found that the high court should not have granted the interdict.
“The SCA’s judgment confirms the obligation of customers to pay for services rendered and failure to pay empowers the city to enforce its credit control by-laws.
“The SCA also confirmed that sectional title owners cannot hide behind a dysfunctional body corporate to compel the city to provide services to which sectional title owners will not ordinarily be entitled.
“It must be emphasised that it is critical that body corporates must ensure their affairs are properly managed. If not, sectional title unit owners must take recourse against the body corporate in terms of the applicable laws governing the functioning of sectional titles in the country.”
Rekord attempted to get comment from the management of the retail park but they refused to comment.
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