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Metering disputes

7 July 2016

Introduction
This article examines the law dealing with the onus or burden of proof on the parties when approaching a court for relief in relation to a metering dispute.

Euphorbia (Pty) Ltd t/a Gallagher Estates v City of Johannesburg1
In this case the applicant (Gallagher) was sued by the municipality for several million rand which the municipality alleged was owing to it as a result of water and sewer charges due and payable by Gallagher to the city. Gallagher’s response to this claim was that the charges that the municipality was seeking to recover from it were based on a faulty meter and accordingly that these amounts were not lawfully owing.

Legal issue
One of the most important issues before the Court was whether the duty (or onus, or burden) of proving that the charges were correctly billed lies on the municipality, or whether the duty of proving that they were incorrectly billed lies on the consumer. The question of whose job it is to prove that the meter was or wasn’t working may seem like a very petty one but when you understand it in the context of court proceedings it occupies a special significance. In court proceedings a party can only obtain relief from a court if it can meet its burden of proof. If there is a burden of proof on you, you have to “meet” or “discharge” your onus before the court will grant you any relief.

This is easier said than done in some cases – consider Euphorbia’s case. Euphorbia was not legally allowed to remove and test the meter that it thought might be faulty, because this legal entitlement was reserved for the City. Euphorbia did eventually get the City to remove and test the meter, but who knows whether the results provided to Euphorbia were accurate. Euphorbia couldn’t check because the meter was disposed of after the tests. In this particular case the municipality contended that the meter tests showed that the meter was functioning correctly, but Euphorbia challenged this because according to the data it had of its consumption patterns, this didn’t make any sense. How is a consumer who can show that the amounts allegedly consumed fall way outside of normal patterns, but who has not been able to have its own experts test the meter, prove to a court that the consumption charges are incorrect, in the face of a report from the municipality saying that the meter was functioning within acceptable limits? The short answer is that it can’t – it will never be able to prove to the Court that the meter was not functioning, although it can put evidence before the Court to show that there is good reason for the Court to infer that the meter was not functioning. However, this will not always be enough for the consumer to discharge the onus of proof.

It is much easier for the municipality, however, to prove that the meter was working (than for the consumer to prove that the meter was not working). It is precisely for this reason that the Court considered the issue of who needs to prove what, in order to succeed in this type of dispute.

Court’s findings
The Court ultimately held that because Gallagher was not in possession of all the information that it needed in order to prove that the meter was not functioning correctly, and further because in law only the municipality was legally entitled to remove and test the meter (where Gallagher was not), that logically it would be unfair in law to burden Gallagher with the responsibility of proving that the meter was not functioning – whereas it would be fair in law to require the municipality to establish that the meter was functioning.

The important precedent set by this case is that in meter disputes it is not the consumer’s responsibility to prove that the charges billed are wrong or based on a non-functioning meter. It is rather the municipality’s responsibility to first prove that the charges are correct and/or based on a functioning meter. Once a consumer has logged a revenue related query based on justified inferences that the billing is wrong, the burden rests on the municipality to investigate the issue, and the meter, if necessary.

Conclusion
This is a victory for municipal consumers, as it removes the responsibility of the consumer in legal proceedings to prove that the municipality’s charges are wrong and/or that meters are not functioning properly; and places the opposite responsibility on the municipality (i.e. to prove that their charges are correct and that the meters are functioning properly). This will undoubtedly assist thousands of consumers in resolving disputes that have been ongoing for many years, because the consumer simply does not have access to the information or the meter in order to resolve these issues itself, and despite numerous demands, the municipality is simply not attending to the issue as it should.

1 Case number A5052/2015, handed down on 17 June 2016 in the Gauteng Local Division of the High Court.

Chantelle Gladwin, Partner and Lindelani Msomi, Candidate Attorney
Schindlers Attorneys

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