Grave mistake: City rapped for cemetery mess-up
Court finds against city over faulty invoice for unpaid rates and taxes
A high court judge has called City of Joburg officials personally to account for an administrative bungle that led to a faulty R5.4m invoice for unpaid rates and taxes.
The R5.4m invoice caused the Waterval Cemetery in Midrand, Johannesburg to go to the high court in a bid to end its lease agreement with City Parks.
The cemetery was under the impression that City Parks, which is its tenant, had failed to pay the R5.4m invoice from the City of Joburg.
But after several years of toing and froing in court it finally became clear that the city had bungled the invoice.
In 2003, the land owners of Waterval Cemetery entered into a 49-year lease agreement with City Parks.
Since 2014, the landlords have been fighting with City Parks, trying to rectify the rates and taxes account that says it owes R5.4m.
According to court documents, the landlords wrote to City Parks in 2014 after receiving an invoice for R5.4m and told them they had breached a clause in their lease agreement. The clause said the tenant shall be liable for the payment of all assessment rates, sewerage and refuse removal charges.
But City Parks did not respond to the letter.
“Six weeks later, the appellant (landlords) sent a letter stating that the breach had not been remedied and notifying City Parks that the lease was forthwith cancelled for that reason,” reads the judgment.
The managing director of City Parks at the time, Bulumko Nelana, then responded, saying the matter had been referred to the City of Joburg.
“To expedite the matter with our principals, we request the appellant to afford City Parks time and further allow the entity to continue with burials as the effects of this action are far reaching than just shutting the facility down,” said Nelana.
The matter dragged on for two years, with little progress.
In September 2016, Waterval Cemetery wrote to City Parks again, this time demanding it vacate the property within a month or face eviction proceedings. But the city asked for further indulgence as “we are in the process of attempting to resolve it”.
It transpired that the R5.4m bill was the result of an administrative error. The property was wrongly classified as a “public service infrastructure” when it should have been classified as “municipal”.
“City Parks and COJ were aware of this administrative error and have been engaging each other to remedy the situation. The solution envisaged a write-off to achieve a complete reversal of the charges,” reads the high court judgment.
The court dismissed the application for eviction on grounds that the landlords had other avenues open for them to protect themselves should COJ attempt to obligate them to pay the charges.
According to the judgment, they could have elected to pay the sum and recover it from City Parks or to meet a summons with a third-party notice to City Parks for any sum due to the city.
The court found that the landlords made no real attempt to enforce the debt.
Although the high court dismissed the appeal application, it laid out strict conditions that could see some of the city officials being held personally liable for the legal costs of the appellants.
Judge Ronald Sutherland ordered the legal firm representing City Parks, Moodie and Robertson, to get a list of every official of managerial rank who was, between 2014 and 2017, responsible for dealing with the query raised by the appellant and the subsequent litigation.
“Each official shall dispose to an affidavit in which that official describes what was done to address the query and to represent reasons why that official ought not to bear all or part of the costs.”
Officials must submit the affidavits by no later than June 30.
The judge said if compliance with the directives were not timeously met, an order for the arrest of managing director of City Parks and the City Manager of City of Joburg shall be issued so that they may be brought before court to account for such failure.