Court supports Settlers resident over power bill

ROB KNOWLES

FOLLOWING a long battle, Settlers Park resident Hendrik Smit recently won a case brought against him by the retirement home's management regarding the payment of his electricity account.

Smit contested the decision by the Settlers Park Association (SPA) to amend residents' contracts to allow for individualised electricity accounts to be levied rather than residents paying a flat rate.

SPA had individual meters installed to ascertain the amount of electricity being used per household. Accordingly, residents' levies were reduced. Only a small portion of the remaining levy included an electricity charge to cater for shared resources such as the gatehouse and village lighting.

Previously, electricity was charged based on the area of the dwelling, including garage space.

Smit and his wife, Marguerite, already had a list of complaints regarding numerous instances where they believe the SPA and the Settlers Park constitution are in error, and thus refused to sign the latest amendment.

As a consequence, SPA took the Smits to court in an attempt to force them to pay for the electricity they had used based upon the meter reading. However, magistrate Louis Muller stated in his judgement at Port Alfred Magistrate's Court on September 14 that clause 8.10 of the Settlers Park resident's contract was "ambiguous” as well as "vague and open ended”, and therefore ruled in favour of the Smits.

Since the judgement Smit has been quite vocal in his opinion of the current management body of SPA which, he says, uses bullying tactics to get its way in such matters.

"For a start, there is no dispute resolution mechanism within the (Settlers Park) constitution. This makes it particularly difficult when residents are in dispute with the management body and the things that are proposed,” he said.

"My wife and I have been virtually ostracised by other residents as, according to newsletters [Silver Threads] published at Settlers, we have refused to pay for electricity and the other residents are being forced to subsidise us.

"However, this is untrue. We are not refusing to pay for the electricity we have used, we are disputing the methods being employed to charge for electricity.”

Smit contends that many Settlers Park residents do not necessarily understand what they are agreeing to when amendments are made. He argued that several decisions made by the SPA are not constitutional and, in fact, may be in conflict with the Older Persons Act (Act 16 of 2006).

Smit would like to see a full forensic audit being carried out on the Settlers Park Constitution to confirm its conformance with the act.

"I believe many of the clauses and amendments in the residents' contracts are not only unconstitutional [referring to the SPA constitution] but are contrary to the law,” he said.

"We do not want to be the crusaders on behalf of Settlers Park residents but someone must stand up to the management of SPA who seem to believe they are above the law, or at least the law does not apply to them.”

Management agent for the SPA, Kevin Mileham, explained the changes to the method of billing for electricity was a result of residents requesting a fairer method than simple square meterage of their properties.

"Residents asked for more control of their electricity bills,” said Mileham. "We put the amendment before a meeting attended by 169 residents. A total of 167 people said ‘yes' to the amendment and two people abstained from voting. The meeting was duly constituted. As far as I am concerned the decision to implement the amendment was unanimous.”

Mileham said the Smits had accepted the lower levy (without electricity charges) but then refused to pay the electricity bill as presented.

"While SPA lost the court case we have not changed our intentions to charge for electricity on a metered basis as the residents feel this is fairer than the old system,” said Mileham.

He added SPA was currently investigating several options in an attempt to implement a differential levy.

"Of the 249 cottages at Settler's Park, only three have refused to sign,” said Mileham.