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[2024] ZAECELLC 7
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Magqazana v Buffalo Metropolitan Municipality and Another (EL1386/2023) [2024] ZAECELLC 7 (5 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: EL1386/2023
In the matter between:
TONY
MAGQAZANA
Applicant
And
BUFFALO METROPOLITAN
MUNICIPALITY 1
st
Respondent
THE MUNICIPAL MANAGER:
BUFFALO CITY
METROPOLITAN
MUNICIPALITY
2
nd
Respondent
JUDGMENT
ZONO AJ:
Introduction
[1]
The
applicant brought this application on urgent basis for hearing on
01
st
September 2023. On 01
st
September 2023 both parties were represented and a Rule
Nisi
was
issued in the following terms:
“
It
is ordered by agreement that:
1.
A
Rule Nisi is hereby issued calling upon the respondents to show cause
on 26
th
September 2023 at 14h00 or so soon thereafter as the matter may be
heard why an order in the following terms should not be made
final;
1.1
The termination/ disconnection/ discontinuation/ blocking of service
of the electricity
supply to the property at No 2[…], Zone 10,
Zwelitsha (the premises) registered under
electricity meter number
0[…] and account number: 1[…]
be and is hereby
declared unlawful.
1.2
The respondents are hereby directed to reconnect/ continue/unblock
the electricity supply
to the premises within four hours after
service of the court order at the office of the second respondent.
1.3
The respondents be and are hereby interdicted and restrained
from charging the applicant a reconnection fee as a result of the
unlawful termination/ disconnection/ blocking of service.
1.4
The respondents are interdicted and restrained from unlawfully
terminated (sic) disconnecting/
blocking the supply of the
electricity to the premises.
2.
Paragraph 1.1 to 1.4 shall operate as mandamus and/or interim relief
pending
the final determination of this matter.
3.
The respondents have to pay costs of this application on a party and
party scale.”
[2]
The matter was opposed by the respondents. All sets of affidavit were
filed of record.
Alternatively, the matter duly served before the
opposed court. Applicant’s case is largely common cause.
[3]
The applicant is the owner of the immovable property situated at
No.2[…], Zone
10 Zwelitsha, Eastern Cape (the premises). In
the premises there are other families who stay in there.
[4]
On 22
nd
August 2023 the applicant learnt that the
Municipality had disconnected the electricity supply to the premises.
The applicant,
through her attorneys attempted to resolve the matter
by addressing a letter to the Municipality. The applicant maintained
that
she had not received a pre-termination letter in terms of
Municipality’s By-Laws.
[5]
In response to the applicant’s request for reconnection the
respondents, through
their legal officer, penned an electronic mail
to the applicant enclosing the termination notice and sheriff’s
return of
service. The respondents stated that pre-termination notice
was duly delivered by sheriff.
[6]
The pre-termination notice aforesaid reads as follows:
“
FOURTEEN
DAY PRE –DISCONNECTION FINAL NOTICE
MUNICIPAL
ACCOUNT NO: 1[…]
Municipal
records show that you owe the Municipality a sum of
R50 333.95
for rates and/or service charges as at 20/04/2023. This letter serves
as a notice of intent to block/disconnect/restrict electricity
and/or
water to your property, due to non-payment of the aforesaid arrear
account. The consequent penalty fee will be debited in
your next
statement of account that will be delivered to you. In terms of the
applicable legislation you will be required to make
written
representation to your nearest Municipal Revenue Management Office,
within period fourteen (14) days from the date of
this
letter, detailing a valid reason why your services should not be
disconnected/ restricted or blocked.
If
you fail to make such a valid written representation, or to settle
the arrear amount in full, or to enter into a formal arrangement
with
the municipality before the said date, aforesaid services to your
property will be disconnected/ restricted or blocked without
any
further notice. All formal arrangements must be made in person at
your nearest Counter Services Department at any Municipal
Revenue
Management Office. Alternate debt collection action will be
implemented on accounts that are not metered.
Consumers
whose total monthly gross household income is equal or less than
R4000.00
are encouraged to apply for an indigent subsidy at their nearest
Municipal Revenue Management office.
Should
you have a valid account query, whether existing or new, kindly
contact your nearest office or the Call Centre (on 086 111
3017)
to ensure that the service is protected from credit control action.
Only the service under query will be protected and all
other services
must be kept up to date to avoid blocking or the disconnection of
electricity. Any enquiries relating to the proposed
suspension of
services or to particulars of the account can be made at your nearest
Municipal Revenue Management office, or the
Call Centre on the number
listed above. You must note that this fourteen (14) day
pre-termination notice is valid until your outstanding
debt as at
20/04/2023 is settled in full.
Kindly
ignore this notice if you have settled your Municipal Account.”
[7]
The sheriff’s return of service alluded to above also reads as
follows:
“
_____________________________________________________
Return
in accordance with the provisions of the Magistrate’s Court
Act
32 of 1944, as amended
________________________________________________________
Return
of service- Fourteen Day Pre-Disconnection Final Notice.
On
this 09 day of May 3023 at 14:03 I properly served this Fourteen Day
Pre-Disconnection Final Notice on Magqazana, NT by placing
a copy in
the Post Box of the RESIDENCE at 2[…] ZWELITSHA RESIDENTIAL
ZWELITSHA 2[…] ZONE 10 which is kept secured
and thus prevents
alternative service. Rule 9(5)”,
[8]
The applicant insisted on its version that she did not receive the
requisite notice
prior the termination of electricity supply,
notwithstanding reference to the sheriff’s return of service.
That version permeated
through to the present application.
[9]
The real issue for determination is whether the applicant was given
the requisite
notification before the disconnection of the
electricity supply to her premises. The applicant contended that she
did not receive
the notice. It is not in dispute that the applicant
was entitled to the requisite notice prior the termination of the
electricity
supply.
[10]
The applicant relies on the provisions of item 6(1)(a)-(e) and
21(1)(b) of the Municipality’s
By-Laws published on
10
th
December 2009 in the Provincial Gazette No. 2245-Buffalo City
Municipality- Electricity Supply- By- Laws,
for proposition that
no compliance has been made by the respondents with those peremptory
provisions. The respondents did not only
contend that they complied
with item 6 of the By-Laws, but also contended that they are entitled
to disconnect, block and/ or restrict
the supply of services to the
consumer who is in arrears in terms of Clause 8 of the Credit Control
Policy. The applicant was in
arrears in respect of the rates and
services.
[11]
Item
21(1)(b) of the Municipality’s By-Laws
provides as
follows:
“
21
Right to disconnect Supply
(1)
The Municipality has the right to
disconnect the supply of electricity
to any premises:
(a)…
(b)
Subject to 14 (fourteen) days written
notice where-
(vii)
the person liable to do so fail to pay any
charge due to the Municipality in connection with any
supply of
electricity which such person may have received from the Municipality
in respect of such premises; or
(viii)
any of the provisions of this By-Law and/ or Regulations are being
contravened and the person responsible
has failed to remedy the
default after such notice has been given, and
(ix)
after any such disconnection, the fee as prescribed by the
Municipality shall be paid”.
Respondents’
right to disconnect the electricity supply is subject to
Municipality’s compliance with the notice requirement
prescribed in item 21(1)(b) of the By-Laws.
[12]
It is not in dispute, as indicated above, that the consumer in the
position of the applicant
is entitled to at least 14 (fourteen) days
written notice to him/her. Service of the written notice adumbrated
in item 21(1)(b)
is provided for in
item 6 (1)(a)-(e) of the same
By-Laws
. The Municipality is charged with the duty to serve the
consumer with a written 14 (fourteen) days’ notice before
resorting
to the termination or disconnection or electricity supply
to the premises.
[13]
Item 6(1)
provides as follows:
“
6
Service of notice
(1)
Any notice or other document that is served on any person in
terms of
this by-law is regarded as having been served –
(a)
when it has been delivered to that person
personally;
(b)
when it has been left at that person's place of residence or business
in the Republic with
a person apparently over the age of sixteen
years;
(c)
when it has been posted by registered or certified mail to that
person's
last known residential or business address in the Republic and an
acknowledgement of the posting thereof from the postal
service is
obtained;
(d)
if that person's address in the Republic is unknown, when
it has been
served on that person's agent or representative in the
Republic in the manner
provided by paragraphs (a), (b) or (c); or
(e)
if that person's address and agent or representative in the
Republic
is unknown, when it has been posted in a conspicuous place on the
property or premises, if any, to which it relates.”
The
Municipality is charged with responsibility to serve the consumer
with 14 (fourteen) days’ notice using one of the
above-mentioned
methods.
[14]
The purpose of the service in terms of the provisions of
item 6
(1)(a) - (e) of the
Municipality’s By-Laws
is to honour an age-old principle of
Audi alteram partem Rule.
At the heart of these proceedings is
compliance with the provisions of item 6(1)(a)-(e) of the
Municipality By-Laws. Organ of state
is constrained to adhere to
peremptory provisions of the statute, especially if there is no power
of deviation is provided for.
[15]
The respondents are organs of state especially the Municipality.
Section
239 of the Constitution
defines
“
organ of
state”
to means-
“
(a)
any department of state or administration in the
national, provincial or local sphere of government; or
(b)
any other functionary or institution-
(i)
exercising a power or performing a function in terms of the
Constitution or a provincial
constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation, but does
not include a court or a judicial officer.”
[16]
The Municipality is in the local sphere of government exercising
power in terms of
Section
156 of the Constitution
.
The second respondent exercises public function as the Head of
Administration and accounting officer of the Municipality.
[1]
[17]
It is fundamental to our constitutional order that the legislature
and executive in every sphere
are constrained by the principle that
they may exercise no power and perform no function beyond that
conferred upon them by law.
[2]
The Constitutional Court held that
[3]
“
1.
State functionaries, no matter how well–intentioned, may only
do what the law empowers them to do.”
[18]
It is discernible from these authorities that public or state
functionaries must confine themselves
within the limits of the
empowering provisions when performing public functions or exercising
public power. The primary function
of the court is to ensure that
those who are charged with the duty to perform public functions in
terms of the legislation act
within the parameters of the law.
[4]
Courts have a duty to ensure that the limits to the exercise of
public powers are not transgressed. An official is not entitled
to
arrogate to himself powers which have not been conferred by law.
[5]
[19]
Judicial review is concerned with determining whether the impugned
acts were made within the
ambit of the empowering legislation, and in
accordance with the precepts of such law, in particular, and the
constitution, in general.
The merits are only relevant to the extent
that they establish procedural failure. It is immaterial whether or
not the decision
was wrong
[6]
.
[20]
In paragraph 3.1 of the notice of motion the applicant seeks an order
in terms of which the termination
of electricity supply to the
premises by the respondents should be declared unlawful. This relief
is part of the Rule
Nisi
granted by this court on 01
st
September 2023. The declaratory order, being as flexible as it is,
can be used to obtain much the same relief as would be vouchsafed
by
an interdict or a mandamus. Where it is not necessary that a record
of proceedings be put before the court a declaratory order
could
serve as a review. A court exercising its discretion whether to grant
a declaratory order should accordingly in an appropriate
case, weigh
the same considerations of justice or convenience as it might do in
the case of an interdict or review.
[7]
[21]
At the hearing of this matter, the dispute between the parties
narrowed itself down to whether
the respondents served the
pre-termination notice to the applicant in terms of the methods set
out in item 6(1)(a)-(e) of the Municipality’s
By-Laws. If the
Municipality did serve the notice in terms of the empowering
provisions, the application must fail. If it did not
serve it in
terms of the methods prescribed in and by item 6(1)(a)-(e), the
application must succeed. Both parties argued their
rivalling
contentions around this point. The applicant contended that, for the
respondents to have complied with the provisions
of item 6(1)(a)-(e)
of the By-Laws, they must have strictly complied with those
provisions, as she submits that the provisions
are of imperative
nature. They require exact compliance. On the other hand, the
respondents placed heavy reliance on the sheriff’s
return of
service which effectively shows that the notice was served by placing
a copy thereof in the post-box of the premises
which are kept
secured. In argument the respondents sought to rely on specific
provisions of item 6(1) (e) of the same Municipal
By-Laws. Reliance
on these provisions is not foreshadowed in the papers.
[22]
A litigant who relies on a particular section of a statute is
generally expected to either state
the number of the section and the
statute, or formulate his case sufficiently clear to indicate what he
is relying on so as to
enable his opponent and the court to know what
case the opponent has to meet.
[8]
However, it is settled Law that where a party in its defence relies
on a statute, specific mention of the section is not necessary;
all
that is needed is that sufficient facts are pleaded. It is sufficient
if the facts are pleaded from which the conclusion can
be drawn that
the provisions of the statute apply.
[9]
[23]
The paragraphs in the answering affidavit relating to service of the
pre-termination notice read
as follows:
“
15.
During March 2023, the Municipality implemented a new distribution
method and appointed the sheriff
to deliver the
pretermination notices to consumers.
16.
This change was necessitated by dysfunctionality of the South African
post office that resulted
in the delay and non-delivery of
pretermination notices to the consumers.
17.
I am advised and submit that the delivery of pretermination notice by
the sheriff is compliant
both (sic) the National Credit Act.
22.
save to deny that the Municipality has not complied with section 6 of
the By-Law, the respondents
admit the rest of the allegations of
these paragraphs. The pretermination notice was delivered to the
applicant’s premises
in compliances with the By-Laws and the
rules of the Magistrates Court.
23.
I deny the blockage of the electricity supply to the premises of the
applicant was malicious
and lacked legal justification. The first
respondent delivered a pretermination notice to the account holder
through the sheriff
of the court of its intention to disconnect
electricity giving the account holder 14 (fourteen) days to make
representation or
the to settle the arrear amount in line with credit
control policy referred to in paragraph 11 above.
25.
I deny that the applicant never received notice and she was
unlawfully deprived of basic
services that go with electricity. I
reiterate that the pretermination notice was delivered to the
applicant’s address. I
have no knowledge of frivolous
allegations referred to in paragraph 23.”
[24]
Firstly, the alleged delivery of the notice sought to comply with
National Credit Act. No mention
is made of the specific provision of
the National Credit Act relied upon. I am unable to decipher from the
facts which provisions
of the National Credit Act were intended to be
satisfied by the delivery.
[25]
In denying applicant’s allegations about respondents’
failure to comply with the
provisions of item 6 of the By-Laws, the
respondents made a bald allegation or bare denial in paragraph 22 of
their answering affidavit
that “
save to deny that the
Municipality had not complied with section 6 of the By-Laws.
”
They further state that the pre-termination notice was delivered in
compliance with the By-Laws and the Rules of the Magistrate’s
Court. No specific provision was mentioned nor the facts set out in
the answering affidavit from which a conclusion could be drawn
that
the delivery was in terms of a particular provision of the By-Laws.
[26]
The return of service reveals that the delivery was in terms of
Rule
9(5) of the Magistrates Court Rules. Rule 9(5) of the Magistrates
Court Rules
reads as follows:
“
5.
Where the person to be served keeps his or her residence or place of
business closed and thus prevents the sheriff from serving
the
process, it shall be sufficient service to affix a copy thereof to
the outer or principal door or security gate of such residence
or
place of business or to place such copy in the post box at such
residence or place of business
”
.
These
are other provisions the sheriff, when delivering the alleged notice,
she sought to invoke. There is no equivalent provision
in the
Municipality’s By-Law.
[27]
In
Liebenberg
NO v Bergriver Municipality and Others
[10]
the Constitutional Court was emphatic concerning the invocation and
reliance on statute that was inapposite as follows:
“
93
In our law, administrative functions performed in terms of incorrect
provisions are invalid, even if the functionary is empowered
to
perform the function concerned by another provision.
In
accordance with this principle, where a functionary deliberately
chooses a provision in terms of which it performs an administrative
function but it turns out that the chosen provision does not provide
authority, the function cannot be saved from invalidity by
the
existence of authority in a different provision.”
[11]
[28]
Item 6 (1)(a)-(e) of the Municipality’s By-Laws does not
provide for the manner of service
by placing a copy of the document
in the post-box. Only Rule 9(5) of the Magistrate’s Court
Rules does. Equally Rule
9(5) does not provide for methods of service
prescribed for by item 6(1)(a)(e). There was no service of the notice
in terms of
item 6(1)(a)-(e) of the Municipality’s By-Laws.
Even if it can be found that there was service of the notice that
notice
would still be invalid as it did not comply with the
imperative provisions of the empowering provisions.
[29]
A maxim of interpretation
Unius est exclusio alterius
applies
to the facts of this case, especially when regard is had to the
provisions of item 6(1)(a)-(e) of the Municipality’s
By-Laws.
The maxim means that the “
express mention of one thing is
the exclusion of the other.”
Express mention of the methods
of service in item 6(1)(a)-(e) is an exclusion of any other method
that is not specifically mentioned
in the item. Service by placing a
copy of the document in the post-box is specifically excluded in item
6(1)(a)-(e) of the Municipality’s
By-Laws. That method of
service was not intended by the council when it was making its
By-Laws.
[30]
A sudden and dramatic change of stance by the respondents occurred
during argument. The respondents,
during their argument sought refuge
on the provisions of item 6(1) (e). I repeat to cite the text of the
provisions as follows:
“
1.
Any notice or other document that is served on any person in terms of
this By-Law is
regarded as having been served-
(e)
If that person’s address and
agent or representative in the Republic is unknown, when it
has been
posted in a conspicuous place in the property or premises, if any, to
which it relates.”
[31]
There are jurisdictional facts that must first be satisfied before
one can appositely invoke
the provisions of item 6(1) (e) of the
By-Law. Jurisdictional facts refer broadly to preconditions or
conditions precedent that
must exist before the exercise of powers,
and the procedures to be followed when exercising that power.
[12]
In the absence of such preconditions or jurisdictional facts it is
said, the administrative authority effectively has no power
at
all.
[13]
The respondents
dismally failed to show that the jurisdictional facts of these
provisions were satisfied. As it will be shown herein
below, the
Municipality had no power to serve the notice otherwise than in terms
of items 6(1)(a)-(e) of By-Laws.
[32]
The first jurisdictional fact for invocation of these provisions is
that “
the person’s address and agent or representative
in the Republic is unknown .”
At
all material times the respondents knew applicant’s address. I
find solace for this proposition in paragraph 25 of the
respondents’
answering affidavit, which reads as follows:
“
25.
I deny that the applicant never received
notice and that she was unlawfully deprived of basic services that go
with electricity.
I reiterate that the pretermination notice was
delivered to the applicant’s address
…”
[33]
Equally paragraph 22 reads as follows:
“
22
save to deny that the municipality has not complied with section 6 of
the By-Laws, the respondents admit the rest of the allegations
in
these paragraphs. The pretermination notice was delivered to the
applicant’s premises in compliance with the By-Laws and
the
Rules of the Magistrates Court.”
[34]
Paragraph 10 of answering affidavit continues to identify premises or
address at which the notice was served in the following
words:
“
10.
The Rule Nisi must be discharged as the account holder failed to
comply with the notice delivered to the account holder address,
No
2[…], Zone 10, Zwelitsha by the sheriff of the court on 09
th
May 2023….”
The
notice specifically sets out the applicant’s address as the
address at which the notice had to be served. At no stage
was the
applicant’s address not known by the respondents.
[35]
When the respondents instructed the sheriff, they specifically gave
the sheriff applicant’s
address. That was a clear demonstration
that applicant’s address was clearly known to the respondents.
The respondents argued
from the bar that as at the time when the
sheriff found the applicant not in the premises, he did not know the
applicant’s
address. As a corrollary the respondents did
not know the address. This submission is without merit and is
untenable. I agree
with applicant’s submissions that a person’s
temporal absence from his place cannot mean that his address is
unknown.
[36]
It is not disputed in the papers that applicant’s premises are
also occupied by the tenants.
That allegation is taken to have been
admitted.
[14]
It is not stated
why the tenants were not asked about applicant’s whereabouts.
The argument about applicant’s unknown
address is farfetched
and untenable and is accordingly rejected.
[37]
There is little wonder about the contents of sheriff’s return
of service. There it is stated
that the premises were “
kept
secured and thus prevents alternative service.”
That report
cannot sit comfortably with the admitted fact that there are tenants
who live in the premises as families with minor
children. Even if it
were to be accepted that the service was in terms of the empowering
provision, it would still be disbelieved
that the premises that
reside families with minor children would be in that state to render
premises totally inaccessible.
[38]
Municipality had all the means to serve in terms of and comply with
the provisions of item 6(1)(a)-(e)
of the By-Laws. But it did not.
Respondents’ papers are devoid of or they offer unconvincing
reasons for such failure. In
a nutshell, I find that respondents
opportunistic reliance on the provisions of item 6(1) (e) of the
By-Laws is misplaced.
[39]
The respondents further changed the stance and sought refuge on the
principle of substantial
compliance. They requested me to find that
they substantially complied. That request cannot be upheld in the
light of the difficulties
raised in paragraph 34 and 35 above.
[40]
It is common cause that the applicant has a right to 14 (fourteen)
days written pre-termination
notice. The notice is for the following
reasons and it also gives rise to the following further rights:
40.1
For the applicant or consumer to make
written representation to her
nearest Municipal Revenue Management office.
40.2
For the applicant or consumer to settle
the arrear amount in full;
and
40.3
For the applicant to enter into a
formal arrangement with the
Municipality before the expiry of 14 days of receipt of notice.
Neither of these rights were exercised
by the applicant. I find
applicant’s denial of the requisite notice to be unlawful and
prejudicial to the applicant.
[15]
As the applicant was undoubtedly denied her rights, as a corollary
she was unable to exercise them.
[41]
The fundamental maxim
Ubi
jus, ibi remedium
(where there is a right there is a remedy) applies to the facts of
this case. In elucidating this principle of interpretation the
Constitutional Court
[16]
made
reference to some authorities as follows:
“
51….In Harris,
Centlivres CJ, with reference to English authorities, stated:
“
There
can to my mind be no doubt that the authors of the Constitution
intended that those rights [that is, the rights entrenched
in the
Constitution] should be enforceable by the courts of law. They
could never have intended to confer a right without
a remedy. The
remedy is, indeed, part and parcel of the right. Ubi jus,
ibi remedium. If authority is needed
for what I have said, I
refer to the following cases. In Ashby v White Holt
CJ said:
‘
If
a plaintiff has a right, he must of necessity have a means to
vindicate and maintain it, and a remedy, if he is injured in the
exercise or enjoyment of it; and indeed it is a vain thing to imagine
a right without a remedy; for want of right and want of remedy
are
reciprocal.”
[42]
The applicant, by these proceedings seeks to enforce her rights
entrenched in item 21(1) (b) of the Municipality’s
By-Laws.
Right to be given notice. She seeks to vindicate and maintain those
rights for they have been violated. It is without
a doubt that
respondents’ conduct of deviating from the statutorily
enshrined methods of delivering the notice, violated
applicant’s
rights.
[43]
Where a statute confers rights, privilege or immunity, such
provisions are peremptory
[17]
.
Similarly, where a statute provides time limits and restrictions such
provisions are peremptory.
[18]
Non-compliance with the peremptory provisions is fatal and result in
nullity.
[19]
Service of
pre-termination notice otherwise than in terms of item 6(1) (a)-(e)
is a nullity or is null and void, ineffectual and
must be taken to
not have been done.
[44]
The Constitutional Court
[20]
emphasized the responsibility bestowed upon the organs of state as
follows:
“
82….
On the contrary, there is a higher duty on the state to respect the
law, to fulfil procedural requirements and to tread respectfully
when
dealing with rights. Government is not an indigent or bewildered
litigant, adrift on a sea of litigious uncertainty, to whom
the
courts must extend a procedure-circumventing lifeline. It is
the Constitution’s primary agent. It must do
right, and
it must do it properly.”
[45]
In this case we are dealing with a Municipality, who did not only
fail to comply with its own
By-laws, but who is also resisting
enforcement of its By-Laws. The Municipality is placing itself above
the Law. There is no reason
why the Municipality cannot be bound by
its own By-Laws. There is no case made out as to why the By-Laws
referred to above cannot
be enforced.
[46]
A Rule
Nisi
was granted by consent in the form or shape referred to in paragraph
1 above.
It
is plain from the order of Beshe J that the court order of 01
st
September 2023 was granted by agreement. It is implied in the consent
to the order that the required element of unlawful termination
of
electricity supply to applicant’s premises was conceded. That
order is final in effect.
[47]
The full court of this Division in Mthatha had an occasion of dealing
with a similar matter
[21]
where a spoliation order was taken by consent. It reads as follows:
“
18.
It
is plain from the order of Brooks J of 30 September 2016 that it was
granted by consent between the parties. It was argued before
us that
the lawfulness of the impoundment of the vehicle stood over to be
dealt with on the return day. However, if this were so
the order of
Brooks J should not have been agreed to. It was implied in the
consent to the spoliation order that the required element
of
unlawfulness was conceded.
19.
In terms of paragraph 1 of the order of Brooks J the appellant was
ordered to return the respondent’s
motor vehicle forthwith.
This order was final in effect and is not subject to the appeal
before us.”
This
dictum applies to the facts of this case in equal force. The order
restoring
electricity supply to applicant’s premises was granted by
consent.
[48]
The judgment of the Full Court, Mthatha is binding on this court. The
doctrine of precedent obliges
courts of equivalent status and those
subordinate in the hierarchy to follow only the binding basis of a
previous decision.
[22]
[49]
In the result I make the following order:
49.1
The Rule
Nisi
granted by this court on 01
st
September 2023 is hereby confirmed in the following terms:
a)
The
termination/disconnection/discontinuation/blocking of service of the
electricity supply to the property situated at No.2[…].
Zone
10, Zwelitsha (“the premises”), registered under
electricity meter number: 0[…] and account number: 1[…]
is hereby declared unlawful;
b)
The Respondents are hereby directed to
reconnect/continue/unblock the electricity supply to the premises
within four hours after
service of the court order at the offices of
the second respondent.
c)
The respondents are hereby interdicted
and restrained from charging the applicant a reconnection fee as a
result of the unlawful
termination/ disconnection/
discontinuation/blocking of service.
d)
The respondents are interdicted and
restrained from unlawfully terminating/ disconnecting/ blocking the
supply of electricity to
the premises.
e)
The respondents are ordered to pay costs
of this application on a party and party scale.
ZONO AJ
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel for the
Applicant :
ADV. CONJWA
Instructed
by
:
S.J NGQONGQO ATTORNEYS
8
Delta Road
Beacon
Bay
East
London
Tel:
043 748 4429/ 074 216 0594
E-mail:
sonwabilengqongqo@yahoo.com
Respondent’s
Counsel
:
ADV. NYANGIWE
Instructed by
:
B.
BANGANI ATTORNEYS
Respondent’s
attorneys
15
Suffolk Road
Berea
East
London
Tel:
043
742
2904
E-mail:
bangani@telkomsa.net
Ref:
Mr Bangani/cd/BCMM/Magqazana
Date heard
:
22
nd
February 2024
Date Delivered:
:
05
th
March 2024
[1]
Section
55(1) and (2) of
Local Government: Municipal Systems Act No 32 of
2000
.
[2]
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999
(1) SA 374
(CC) Para 58; Cora Hoexter: Administrative Law in South
Africa, 2
nd
Edition, Page 29.
[3]
Head
of Department, Department of Education, Free State Province v Welkom
High School and another, Free State Province v Harmony
High School
and another
2014
(2) SA 228
(CC) Para 1
[4]
Baxter:
Administrative Law Page 305;
Mwelase
v The Minister of Social Development and Others
(CA
74/16) [2018] ZAECMHC 16 (22 March 2018) Para 25.
[5]
Minister
of Social Development and another v Mpayipheli
(CA135/16)
[2018] ZAECMHC 31 (26 June 2018) Para 18.
[6]
MEC
for Environmental Affairs & Developmental Planning v Clarison’s
CC
2013 (6) SA 235
(SCA) Para 18.
[7]
Naptosa
and Others v Minster of Education, Western Cape Government and
others
2001(1)
SA 112 (C).
[8]
Yannakou
v Appollo Club
1974(1)
SA 614 (A) at 623 G.
[9]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) Para 27.
[10]
2013
(5) SA 246
(CC) Para 93.
[11]
Nxumalo
v President of Republic of South Africa
2014
(12) BCLR 1457
(CC) Para 14;
Zuma
v DA; Acting National Director of Public Prosecutions and another v
DA and another
2018
(1) SA 200
SCA Para 58.
[12]
MEC
for Health Eastern Cape and another v Kirland Investment (Pty) Ltd
2014
(3) SA 481
(CC) Pára 98;
Kimberly
Junior School and another v Head of Department of the Northern Cape
Education Department and others
2010(1)
SA 2017 (SCA) Para 11.
[13]
Paola
v Jeeva NO
2004
(1) SA 396 SCA Para 11, 14 and 16.
[14]
Wightman
t/a JW Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA)at 375F-376B.
[15]
Item
21(1) (b) of the Municipality’s By-Laws.
[16]
Masemola
v Special Pensions Appeal Board and another
2020(2)
SA 1 (CC) Para 51.
[17]
LAWSA,
2
ND
Edition,
Part 25
, Page 400 Para 366.
[18]
G.M
Cockram: Interpretation of Statute Page 161.
[19]
LAWSA,
(Supra) Page 399, Para 366.
[20]
MEC
for Health Eastern Cape and another v Kirland Investments (Pty)Ltd
2014
(3) SA 481
Para 82.
[21]
King
Sabata Dalindyebo Local Municipality v Noah
(CA&R19/2018)
[2018] ZAECMHC 46 (21August 2018) Para 18-19.
[22]
True
Motives 84 (Pty) Ltd v Mahdi
2009 (4) SA
153
SCA
Para 100-101; Makhanya v The University of Zululand
2010 (1) SA 62
SCA Para 6-7