Summary of Judgment

1. Introduction

The matter concerned an urgent application for relief following the disconnection of electricity supply to a property. The applicant was Graham John Brokenshire N.O, acting in his capacity as a trustee of a trust that consumed electricity supplied by the respondent, the City of Johannesburg Metropolitan.

The application arose against the background of pending litigation between the parties concerning disputed amounts debited to the relevant municipal electricity account. That earlier dispute had been instituted in 2021 under case number 2021-26601, and it related to the debt reflected on the account through which electricity was supplied to the property (an account not registered in the trust’s name).

In February 2023, the City served a pre-termination notice at the property. The trust thereafter engaged the City regarding resolution of the account issues, and the City agreed to flag the account so that supply would not be terminated while flagged. Although the account was initially flagged until 30 June 2023, the trust later received correspondence indicating that the account had been flagged again from 1 August 2023. Notwithstanding this, the City terminated electricity supply on 16 August 2023 without additional notice, precipitating the urgent proceedings under case number 081420/2023.

The general subject-matter of the dispute before the court was whether the City’s termination of electricity supply was lawful in the absence of a fresh pre-termination notice, and what interim relief was appropriate given both the ongoing dispute about historical debt and the trust’s obligation to remain up to date with current consumption charges.

2. Material Facts

It was common cause that the applicant, as trustee, represented a trust that was consuming electricity supplied by the City, but that the municipal account through which electricity was supplied was not in the name of the trust.

It was also not in dispute that a broader dispute about the account and the amounts debited to it was already pending before the High Court, having been instituted in 2021. This pending litigation concerned the debt to which the earlier pre-termination notice related, and the respondent itself highlighted that some of the issues raised in the urgent application overlapped with matters already before another court.

Chronologically, the court accepted that in February 2023 the City served a pre-termination notice at the property. Following that notice, the trust did not ignore the situation; instead, it engaged the City regarding resolution. In consequence of those engagements, the City agreed to flag the account, which would have the effect that electricity supply would not be terminated while the account remained flagged. The initial flagging was agreed to endure until 30 June 2023, and the trust subsequently received correspondence indicating the account had been flagged again from 1 August 2023.

Despite this, on 16 August 2023, the City disconnected the electricity supply to the property without serving any additional notice after February 2023. After the termination occurred, the trust discovered that it had not been paying the amounts invoiced by the City for current consumption, because it had instead been paying an amount calculated using a “check meter” that was incorrect. The court treated this as resulting in underpayment of current charges. After discovering the underpayment, the trust paid R890 000 into the account.

The court identified two operative factual themes for purposes of the relief sought. First, there was the fact of non-payment of the full invoiced current consumption, meaning the trust was not up to date on the billed current charges at the time of disconnection. Second, there was the question whether the City was entitled to rely on the February 2023 pre-termination notice, or whether a fresh pre-termination notice was required before disconnection could lawfully occur in August 2023.

3. Legal Issues

The central legal questions were whether, on the facts as accepted by the court, the City’s termination of electricity supply on 16 August 2023 was lawful and procedurally permissible without the service of a fresh pre-termination notice, given the intervening engagement between the parties and the existence of pending litigation concerning the historical debt.

A further question concerned the appropriate form of interim relief: whether the applicant was entitled to an interdict preventing termination, and if so, whether such relief could be unconditional or had to be conditioned on the trust remaining up to date with current monthly charges as billed.

The dispute primarily involved the application of legal requirements (procedural fairness in the form of notice) to established facts, together with a discretionary or evaluative component concerning the balance of justice in crafting interim relief pending the determination of the historical debt dispute.

4. Court’s Reasoning

The court approached the matter by distinguishing between two distinct issues. The first was the trust’s failure to pay the full amounts invoiced for current consumption (because it had been paying in accordance with an incorrect check meter). The second was the legal validity of the City’s reliance on the February 2023 pre-termination notice to justify a disconnection in August 2023.

On the City’s argument, the court recorded that counsel for the respondent referred to authority for the proposition that where a pre-termination notice has been served and is not responded to, the City is entitled to act on it even after a substantial period has elapsed. The judgment, however, treated the present matter as materially different because the applicant had not ignored the February notice. Instead, there had been active engagement between the trust and the City regarding the very issues that prompted the notice, and the historical debt issues were already the subject of pending litigation.

The court found that the disconnection in August 2023 occurred in circumstances where the trust had been corresponding and engaging with the City, the account had been flagged (including correspondence that it was flagged again from 1 August), and the disconnection was connected to a different issue from that which had given rise to the February pre-termination notice. On that basis, the court concluded that the City could not lawfully disconnect the electricity supply on 16 August 2023 without serving a fresh pre-termination notice.

A key part of the court’s evaluation concerned the function of a pre-termination notice. The court reasoned that the notice serves to bring an account problem to the attention of the account holder and to provide an opportunity to correct the issue before termination. In this case, the trust only discovered the underpayment once the termination occurred; the court accepted that, had a fresh pre-termination notice been served in relation to the then-current non-payment, it would likely have prompted the trust to check its payment status and correct the error before disconnection became necessary. The court therefore accepted the applicant’s contention that the absence of a fresh notice was materially prejudicial and rendered the disconnection unlawful.

In relation to relief, the court declined to grant an unconditional interdict in perpetuity, holding that the trust was obliged to pay for services consumed. However, it considered it in the interests of justice to restrain the City from terminating supply based on historical debt while the litigation concerning that debt remained unresolved. The court therefore fashioned relief that both compelled reconnection and structured the parties’ obligations going forward: the trust had to remain up to date with current charges as billed, and the City was restricted from disconnecting for historical debt pending finalisation of the 2021 dispute, while also being required to serve a new pre-termination notice if future termination were sought due to non-payment of current invoiced amounts.

5. Outcome and Relief

The court granted urgent relief. It declared the disconnection of electricity supply on 16 August 2023 unlawful and ordered the City to restore electricity supply within two hours of the order being handed down.

The court further ordered that if the City failed to reconnect within the two-hour period, the applicant would be entitled to engage a private contractor to reconnect the electricity supply and perform necessary actions (including installation of a replacement meter if required), and the City would be liable for the costs of those services and could not take action against the private contractor in relation thereto.

The court directed the applicant to ensure that the trust remains up to date with current charges for the relevant account number, in accordance with what the City invoices as current charges. For so long as current charges are kept up to date, the City was interdicted from disconnecting/terminating electricity or water supply to the property after the handing down of the order. If the trust failed to pay current charges as invoiced, the City was required to serve a new pre-termination notice before terminating services.

The court interdicted termination in respect of the historical debt pending finalisation of the dispute under case number 2021-26601. It also ordered that the City may not charge penalties or disconnection/restriction/meter tampering charges in respect of the disconnection carried out on or about 16 August 2023.

Costs of the application were awarded against the respondent, with the City ordered to pay the costs of the urgent application.

Cases Cited

No cases were cited by name in the text of the judgment provided.

Legislation Cited

No statutes were cited by name in the text of the judgment provided.

Rules of Court Cited

The Uniform Rules of Court, Rule 6(12)(b).

Held

The court held that the termination of electricity supply to the applicant’s property on 16 August 2023 was unlawful because the City effected the disconnection without serving a fresh pre-termination notice in circumstances where the applicant had engaged the City following the earlier notice and where the disconnection was related to a different issue from that which triggered the February 2023 notice.

The court held further that an interdict could not operate unconditionally in perpetuity, because the consumer must pay for services consumed, but that it was appropriate and in the interests of justice to prevent termination for historical debt pending finalisation of the separate litigation concerning that debt, while requiring the trust to remain current on ongoing invoiced charges.

LEGAL PRINCIPLES

The judgment applied the principle that a pre-termination notice operates as a procedural mechanism to alert the account holder to a problem on the account and to provide an opportunity to remedy the position before supply is terminated. Where termination is based on a materially different basis from an earlier notice, and where the consumer has engaged the municipality rather than ignoring the notice, reliance on an earlier pre-termination notice may be insufficient to justify a later disconnection.

The court applied the principle that interim protection against termination of municipal services may be justified pending determination of a dispute, but such protection is appropriately conditioned on the consumer remaining up to date with current consumption charges. The judgment reflects an approach of balancing ongoing payment obligations against fairness in relation to contested historical debt, by restraining termination for historical debt pending resolution of litigation while preserving the municipality’s ability to terminate on proper notice if current charges are not paid.