IN THE HIGH CO URT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case No: 398/2023
In the matter between:
SIPHOKAZI MAFILIKA & 5 OTHERS
And
ELUNDINI MUNICIPALITY
THE MUNICIPAL MANAGER:
ELUNDINI MUNICIPALITY
Applicant
First Respondent
Second Respondent
APPLICATION FOR LEA VE TO APPEAL .JUDGMENT
Beshe J
[ 1] On The 10 February 2023 after considering a certificate of urgency filed
by applicants' counsel, I issued inter alia the following directive:
The hearing of Part A of the application be set down for hearing on 17 February
2023.
[2] All the requisite affidavits having been filed by the parties, the matter was
indeed heard on the 1 7 February 2023.
[3] In Part A of the application, the applicants sought an order m the
following terms:
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Part A
1. Condoning the applicants' non-compliance with the uniform rules of
Court and dispensing with forms and services provided for in the normal
rules of this Hon ourable Court and directing that this matter be disposed
by way of urgency in accordance with uniform Rule 6(2) of the above
Honourable Court;
2. Condoning the applicants' non-compliance with the rules relating to the
timeframes set out, including the 72 hours' notice referred to in section
35 of the General Law Amendment Act, 1955 (Act 62 of 1995);
3. Pending a final determination of the orders sought in Part B , the
Respondents are:
3 .1 directed to restore the electricity and water supply within 2 hours after
service of the court order, by the Applicants' attorneys of the Sheriff
of this Court, at the offices of the first and/or second respondent
pending the finalization of Part B of the application;
3 .2 interdicted and restrained from unlawfully terminating/disconnecting
the supply of electricity to the premises pending the finalization of
Part B of the application;
4. Interdicted and restrained from charging the Applicants a reconnection
fee as a result of the unlawful termination/disconnection of electricity;
5. Directed to pay the costs of Part A on an attorney and client scale, jointly
and severally, the one paying the other to be absolved;
6. Granting such further and/or alternative relief.
For completeness, the order sought in Part B of the application is the following:
PartB
In the main, an order declaring:
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7. The conduct of the Respondents in terminating the supply of electricity
and water without prior notice be declared unlawful, nul and void ab
initio;
8. That the interim order granted by this Honourable Court in
paragraph/prayers 3 .1 and 3 .2 above, which preserved the status quo, is
hereby made a final order;
9. That the Respondents be directed to pay the costs of this application
alternatively the costs of this litigation, on an attorney and own client
scale of costs jointly and severally, the one paying the other to be
absolved; and
1 0.Granting applicants such further and/or alternative relief.
[ 4] Having heard argument on the 17 February 2023, I rendered judgment on
the 23 February 2023 "dismissing the application".
[5] It was common cause that the supply of electricity was terminated by the
officials of first respondent on the 7 February 2023. Water supply was
terminated on the following day being the 8 February 2023. There is a dispute
regarding the identity of the institution that cut the water off. In response to the
allegation that officials of the first respondent also disconnected the water
supply, first respondent had this to say, amongst other things in this regard:
The competency to supply water within the area of Nqanqarhu falls within the
Joe Gqabi District Municipality, a party that is not before court. The
circumstances leading to the disconnection of water supply can best be
answered by the District Municipality. 1 In addition, first respondent provides
the reason for the disconnection of the electricity supply to the premises
concerned as being an instruction that was received from the owner thereof. A
1 Paragraph 27 of the answering affidavit page 56 of the papers.
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copy of a letter from the owner of this premises in this regard was annexed to
the answering affidavit.
[6] My judgment is assailed on the basis, inter alia that I erred in dismissing
Part B of the application together with Part A without hearing or considering
any evidence and legal submissions in relation to Part B.
[7] This is clearly a misunderstanding by the applicants of my judgment. The
relevant part thereof reads: "In my view, the applicants have not succeeded in
establishing that they have a prima facie right requiring protection from the
respondent. I do not believe that the applicants enjoy prospects of being
successful in Part B of the application. Accordingly, the application is dismissed
with costs.,. I also made the point that the disconnection of services in this
matter was not initiated by the municipality for non-payment for services but by
the owner of the premises who had a contract with the municipality in regard to
a contract between the parties.
[8] The judgment being appealed against is in respect of an interlocutory
application pending the determination of Part B of the application and is
therefore generally speaking not appealable. I know of no reason in this matter
why the norm should be departed from. I am not persuaded that the appeal
would have reasonable prospects of success as envisaged in Section 17(a)(l) of
Superior Courts Act 10 of 2013.
[9] Accordingly, the application for leave to appeal is dismissed with costs,
such costs to include costs of two counsel where so employed.
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicants
Instructed by
For the Respondents
Instructed by
Date Heard
Date Reserved
Date Delivered
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Adv: D Skoti
MESSRS SB BA VU A TIORNEYS
C lo MGANGA THO A TIORNEYS
7 Somerset Street
MAKHANDA
Ref: Mr. Mgangatho
Tel.: 073 761 5551
Adv: Miya
T L LUZIPHO ATTORNEYS
C lo YOKW A A ATTORNEYS
IO New Street
MAKHANDA
Ref: Mr Yokwana
Tel.: 046- 622 9928
1 I September 2023
11 September 2023
23 January 2024