Tavakoli and Another v City of Cape Town (24562/2024) [2025] ZAWCHC 218 (23 May 2025)

Case Note

Case name: ALLEN TARGHI TAVAKOLI and DLX PROPERTIES (PTY) LTD v. CITY OF CAPE TOWN
Citation: Case No. 24562/2024
Date: First appeared on 15 November 2024

Reportability

This case is reportable as it involves an urgent application for mandament van spolie, an extraordinary remedy aimed at restoring an essential service. The dispute centers on the restoration of water supply to two immovable properties and highlights the balance between municipal regulatory authority and the rights of property owners. Its significance is heightened by the involvement of critical legislative frameworks designed to ensure public access to essential services.

The matter has broader implications for the principles of fairness in administrative decisions, particularly when a local government restricts access to vital utilities. The case also draws attention to the issue of procedural compliance and the appropriate use of emergency orders. Mandament van spolie cases of this nature underscore the court’s role in overseeing municipal actions to protect constitutional rights.

The urgency of the application further emphasizes its reportability. The court’s approach in evaluating both procedural and substantive issues provides important guidance for similar disputes in the future, especially regarding municipal obligations under statutory and constitutional provisions.

Cases Cited

The judgment notably refers to the Plascon-Evans Rule in its discussion on disputes of fact. This rule has been cited to clarify the circumstances under which courts may grant final orders on the papers when disputed facts arise in motion proceedings. The full citation in this judgment is maintained as “Plascon-Evans Rule,” without abbreviation or alteration.

Legislation Cited

The judgment draws on several legislative instruments, including:
- The Water Services Act, 108 of 1997
- The Constitution, section 27(1)(b)
- The Local Government: Municipal Structures Act, 117 of 1998
- The City of Cape Town Municipal Water By-Law, 2010

Rules of Court Cited

The judgment refers to the Uniform Rules of Court, in particular noting compliance issues and relief sought under Rule 6(12). The discussion emphasizes procedural adjustments, such as condoning non-compliance with prescribed forms and time periods, which are integral to the court’s determination of urgent applications.

HEADNOTE

Summary

The judgment involves an urgent application for mandament van spolie by the applicants, Allen Targhi Tavakoli and DLX PROPERTIES (PTY) LTD. They seek an order requiring the City of Cape Town to restore the water supply to two specific properties amid disputes regarding municipal valuations and outstanding utility bills. The urgency is compounded by allegations of illegal tampering with municipal infrastructure and anomalous volumetric water consumption.

This case raised issues regarding the proper procedures for limiting or disconnecting water services as stipulated by relevant legislation. The arguments presented by the applicants highlight their constitutional right to access essential services, while the respondent defends its actions on the basis of alleged misconduct by the applicants.

Ultimately, the dispute revolves around whether the respondent had justified grounds for its actions and whether the court should grant urgent interim relief. The decision thus encapsulates important principles of administrative fairness and procedural equity.

Key Issues

The key legal issues include the determination of urgency in the application and whether the respondent was justified in disconnecting or restricting the water supply. Additionally, the case examines if prior instances of flow limiting and alleged tampering by the applicants affect the validity of the respondent’s actions. The court also considers the adequacy of the applicant’s procedural compliance in the context of an urgent application.

Held

The court’s holding reflects a careful analysis of the disputed facts and statutory obligations. The judgment indicates that given the emergency circumstances and the pertinent legislative framework, interim relief should be granted pending a final determination of the merits. Although costs were reserved for later determination, the order to temporarily restore water supply reflects the court’s commitment to ensuring access to essential services while the underlying disputes are resolved.

THE FACTS

The factual background reveals that on 13 November 2024, the City of Cape Town restricted or disconnected water supply to two immovable properties owned by the applicants. The dispute stems from longstanding issues related to municipal valuations, outstanding utility bills, and prior measures including the installation of flow limiting discs. Communication between the applicants and municipal officials had been ongoing since July 2022 and reached a critical point when the city’s representative noted unauthorized tampering with the installed devices.

The first applicant, a businessman, owns one of the properties, while the second applicant – a private company operating a guesthouse – owns the other. Both properties had previously been subject to restrictions that were subsequently lifted after a settlement was reached, only for a complete disconnection to occur later. Claims regarding the presence or absence of previously installed restriction devices form a core part of the dispute.

Further complicating the facts is the allegation that the applicants engaged in actions that led to ‘anomalous volumetric consumption’ of water. The city argues that such behavior warranted the termination or restriction of water services, while the applicants deny any tampering and assert that the water supply had been consistently maintained until the abrupt disconnection on 13 November 2024.

THE ISSUES

The case presents two main legal issues. The first is whether the application for mandament van spolie qualifies as an urgent matter given the essential nature of water services. The court had to assess if the criteria for urgency as provided by the Uniform Rules of Court, particularly under Rule 6(12), were met in this instance.

The second issue concerns whether the respondent was justified in restricting and disconnecting the water supply based on the alleged misconduct by the applicants. This required a thorough examination of the factual disputes surrounding prior installations of water limiting discs and allegations of tampering. The court was further tasked with reconciling conflicting evidence presented by both parties regarding the sequence and nature of these events.

Additionally, the court needed to determine if the denial of water supply violated any constitutional or statutory rights, especially in light of the provisions of the Water Services Act and relevant municipal by-laws. The resolution of these issues was critical to establishing the appropriate balance between municipal authority and individual rights.

ANALYSIS

The court’s reasoning was anchored in the statutory framework provided by the Water Services Act, which emphasizes the right to access sufficient water and outlines clear conditions under which water services may be discontinued. The court underscored the importance of procedural fairness as mandated by both the Act and the City of Cape Town Municipal Water By-Law, particularly in offering notice and an opportunity to be heard before any limitation of services.

In applying the Plascon-Evans Rule, the court carefully compared the undisputed facts admitted by the respondent with those asserted by the applicants. This allowed the court to determine that, notwithstanding certain disputes over past measures and alleged tampering, the overall evidence supported the need for urgent relief. The court acknowledged that the applicants’ non-compliance with certain procedural requirements did not preclude the granting of interim relief given the emergency nature of the case.

Furthermore, the analysis reflected a consideration of the balance between municipal responsibilities and the rights of consumers under constitutional principles. The court emphasized that while the municipality must regulate water usage, it also has an obligation to provide access to essential services unless there is a compelling and justified reason to act otherwise. Fair and equitable procedures in the administration of water services were central to the court’s decision-making process.

REMEDY

The remedy granted by the court was an interim order directing the City of Cape Town to restore the water supply to the properties pending a final determination of the dispute. This order was rendered on an urgent basis, reflecting the court’s assessment that immediate restoration was necessary to avoid further harm to the applicants.

The remedy also included directing the respondent to bear the costs of the application, although detailed cost determinations were reserved for later proceedings. Such a measure was intended to ensure that the applicants were not unduly penalized by the procedural irregularities that led to the dispute.

Ultimately, the interim relief was designed to safeguard the essential rights of the applicants while allowing the underlying factual and legal issues to be addressed in a subsequent full hearing. This reflects the court’s overarching commitment to ensuring access to essential services in line with constitutional and statutory mandates.

LEGAL PRINCIPLES

The judgment establishes several key legal principles. First, it reinforces the constitutional right to access essential services, particularly water, as enshrined in the Constitution and operationalized through the Water Services Act. Second, it highlights that municipal authorities must adhere to fair and equitable procedures before disconnecting essential services, ensuring adequate notice and an opportunity for representations under the applicable by-laws.

Furthermore, the court’s application of the Plascon-Evans Rule illustrates that in urgent applications, disputed facts may be resolved on the strength of the applicant’s affidavits if the respondent’s denials do not raise a genuine dispute. Procedural fairness remains a cornerstone of judicial review in urgent relief cases. These principles guide the determination of intermediate remedies while balancing the immediate need for service restoration against the procedural integrity of municipal regulatory actions.