About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2023
>>
[2023] ZAECMKHC 16
|
|
Mafilika and Others v Elundini Municipality and Another (398/2023) [2023] ZAECMKHC 16 (23 February 2023)
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, MAKHANDA)
Case
No: 398/2023
In
the matter between:
SIPHOKAZI
MAFILIKA & 5 OTHERS
Applicant
And
ELUNDINI
MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER:
ELUNDINI
MUNICIPALITY
Second Respondent
JUDGMENT
BESHE
J:
[1]
It is common cause that
officials of first respondent disconnected or terminated the supply
of electricity from Erf 3[...] Maclear, which falls under the
Elundini Municipality. It is also common cause that the owner of
the
said premises is
Ms Nosipho Flora Nyezi
. Water supply was also
disconnected albeit it not being common cause by whose officials it
was disconnected. In this application,
the applicants seek an order
that pending Part B of the application, the respondents be directed
to restore water and electricity
within two hours of receipt of the
court order, at the said premises. That, they be interdicted and
restrained from unlawfully
terminating / disconnecting the supply of
electricity to the premises pending the determination of Part B of
the application.
[2]
As I understand their case,
applicants’ complaint is that the electricity and water
supply
was disconnected without prior notice and therefore unlawfully. Which
I also understand to be the gist of the declaratory
that will be
sought in Part B of the application. Namely: That the conduct of the
respondents in terminating the electricity supply
and water without
notice be declared unlawful, null and void
ab initio
.
[3]
The applicants’ case as
would appear from
Ms
Mafilika’s
affidavit,
is that they reside in the said premises and their occupation of the
premises is lawful as it stems from a rental agreement
with their
landlady/agent
Ms
Pinky Madikane
.
They also make the point that they purchase water and electricity
from first respondent (municipality). On the 7 February 2023
two
officials from the respondents’ office arrived at the premises
concerned and informed
Ms
Mafilika
that they were from the office of the respondents with instructions
there being to terminate the supply of electricity and effectively
block them from usage thereof.
[1]
Attempts to establish the reason for the disconnection were not
forthcoming from the said officials. On the 8
th
February 2023 officials from the municipality terminated the water
supply without any
pre
termination notice
.
This, they assert, as based on the Constitution and the principles of
natural justice as well as the municipal by-laws. I was
however not
referred to any such by-laws relevant to the first respondent.
Applicants go on to demonstrate how they have satisfied
the
requirements for the grant of an interim interdict / relief.
[4]
Essentially the case of the
respondents is that the owner or tittle holder in respect of
the said
premises,
Ms Nosipho Flora Nyezi
, with whom the municipality
had contract to supply electricity and other services, addressed a
letter to the municipality. The
letter is dated 4 February 2023, but
came to the Municipal Manager’s attention on the 6 February
2023. The letter was accompanied
by all the relevant documents
pertaining to the title holder as well as being account holder in
respect of the property with the
municipality wherein she requested
that the electricity to the property be disconnected.
The
following documents are attached. Letter from Ms Nyezi wherein she
requests second respondent to temporarily disconnect the
power
connection and issue her with the final electricity/rate bill. Copy
of her ID. Copy of consumer statement. Copy of Title
Deed and copy of
local plan of the property.
To this end, she paid the
requisite disconnection fee. The request was complied with the
municipality according to the Municipal
Manager had no option but to
action the request. The fact that the owner of the premises requested
the disconnection obviated the
need to give prior notice of
disconnection. In addition, previously all the communication has
always been with
Ms Nyezi
. Respondents therefore deny that the
disconnection of the electricity supply was unlawful.
[5]
Respondents state that they do
not know if the applicants purchase electricity and water
from the
first respondent. Further deny that the persons who were found on the
premises were not informed of the reason for the
disconnection of the
electricity supply.
Mr Faca
who was responsible for the
physical disconnection states that he told people who were outside
the premises of the reason for his
visit and even gave them the
opportunity to read the letter that was received from the owner of
the property.
[6]
In their reply the applicants
insist that the respondents owed them a duty of procedural
fairness
by affording them an opportunity to make representations before
taking the decision to disconnect the supply of electricity
and water
to the property or notify them of the reasons for doing so.
[7]
It is trite that administrative
action which materially and adversely affects the rights
or
legitimate expectations of any person must be procedurally fair.
[2]
This entails
inter
alia
giving adequate notice of the nature and purpose of the
administrative action.
[8]
Administrative action is defined
under
Section 1
of
Promotion of
Administrative Justice Act
. The
applicants move from the premise that the respondents were performing
an administrative act in terminating the supply of electricity
and
water to the property.
[9]
Perhaps it is apposite that I
deal with the issue of the disconnection of water supply
at this
stage. Respondents deny that they disconnected the supply of water
and assert that the Joe Gqabi District is better placed
to answer
questions in this regard. It is common cause that the disconnection
of electricity and that of water did not occur on
the same day. This
in my view lends credence to the respondents’ assertion that
the Joe Gqabi District Municipality was responsible
for the
disconnection of water. It is my finding therefore that the
respondents’ point
in limine
of non-joinder in this
regard ought to be upheld.
[10]
Did the disconnecting the supply of electricity to
the said property in the circumstances put forward by
the respondents
amount to administrative action or did they act in terms of a
contract between the first respondent and
Ms
Nyezi
and
at
Ms
Nyezi’s
instance? In
Sanparks
v Mto Forestry
[3]
the following was said in this regard:
“
[37]
There is no bright-line test for determining whether administrative
principles intrude in relation to a contract involving
an organ of
state and a private party. However, there are indicators. One might
rightly ask whether coercive state power can be
brought to bear by a
state organ on the private party. Further, one will be constrained to
consider whether the public interest
is affected by the exercise of
the contractual right
”
In
Chirwa
v Transnet Ltd and Others
[4]
the Constitutional Court had this to say:
“
[139] However, the
fact that the conduct of Transnet in terminating the applicant’s
employment contract involves the exercise
of public power is not
decisive of the question whether the exercise of the power in
question constitutes administrative action.
The question whether
particular conduct constitutes administrative action must be
determined by reference to s 33 of the Constitution.
Section 33 of
the Constitution confines its operation to ‘administrative
action’, as does PAJA. Therefore to determine
whether conduct
is subject to review under s 33 and thus under PAJA, the threshold
question is whether the conduct under consideration
constitutes
administrative action. PAJA only comes into the picture once it is
determined that the conduct in question constitutes
administrative
action under s 33. The appropriate starting point is to determine
whether the conduct in question constitutes administrative
action
within the meaning of s 33 of the Constitution. The question
therefore is whether the conduct of Transnet in terminating
the
applicant’s contract of employment constitutes administrative
action under s 33.”
And
later at paragraph 142 had this to say:
“
[142] The
subject-matter of the power involved here is the termination of a
contract of employment for poor work performance. The
source of the
power is the employment contract between the applicant and Transnet.
The nature of the power involved here is therefore
contractual. The
fact that Transnet is a creature of statute does not detract from the
fact that in terminating the applicant’s
contract of
employment, it was exercising its contractual power. It does not
involve the implementation of legislation which constitutes
administrative action. The conduct of Transnet in terminating the
employment contract does not in my view constitute administration.
It
is more concerned with labour and employment relations. The mere fact
that Transnet is an organ of State which exercises public
power does
not transform its conduct in terminating the applicant’s
employment contract into administrative action. Section
33 is not
concerned with every act of administration performed by an organ of
State. It follows therefore that the conduct of Transnet
did not
constitute administrative action under s 33.”
[11]
Applicants placed a lot of reliance on the matter
of
Joseph
v City of Johannesburg
.
[5]
This matter also concerned the termination of the electricity supply
to the applicants’ place of residence following the
accumulation by the landlord, of substantial arrears in payments to
the respondent. The applicants were tenants in a block of 44
apartments. The court identified the difficulty that arose from the
case as stemming from the fact that applicants are tenants
who have
no contractual right to receive electricity from City Power.
[6]
The issues in this matter concerned more than just the contractual
relationship between the City Power and the landlord, but also
concerned a by-law(s) in so far as they relate or define customer and
occupier. We have established that
in
casu
we
are not dealing with any municipal by-laws. This in my view
distinguishes the case under consideration and the
Joseph’s
case. This is one of the distinguishing features. I say so because at
paragraph [17] of the
Joseph’s
matter the court states that the case concerns the interpretation of
PAJA
and its application to municipal bylaws – the credit bylaw.
There are other distinguishing features between the two matters.
Each
case should be decided on its own unique facts.
[12]
Another significant distinguishing feature in my
view, is that unlike in the
Joseph’s
matter, the
respondents did not set out to disconnect the supply of electricity
on their own, did not strictly speaking take a
decision, based on
failure to pay for rates and services. The respondents were
instructed by the title holder of the property,
with whom they had a
contract, to do so. She certainly did not require a pre disconnection
notice. Because she requested the disconnection
of electricity to the
premises. It is therefore my view that the respondents were not
performing an administrative act but in compliance
with an
instruction by the title holder to suspend the supply of electricity
to the property.
[13]
Furthermore, those that were found in the premises
were informed of the reason for the disconnection and
shown the
letter from
Ms
Nyezi
.
The dispute of fact in this regard is resolved on the basis of what
was stated in
NDPP
v Zuma
[7]
regarding the dispute whether the appellants or some of them were
informed of the reason for the disconnection of electricity and
whether there was a real dispute in this regard. In my view, the
applicants have not succeeded in establishing that they have
prima
facie
right requiring protection
vis-à-vis
the
respondents. I do not believe that the applicants enjoy prospects of
success of being successful in Part B of the application.
[14]
Accordingly, the application is dismissed with
costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicants:
Adv:
D Skoti
Instructed
by:
MESSRS
SB BAVU ATTORNEYS
C/o
MGANGATHO ATTORNEYS
7
Somerset Street
MAKHANDA
Ref:
Mr. Mgangatho
Tel.:
073 761 5551
For
the Respondents:
Adv:
Miya
Instructed
by:
T L
LUZIPHO ATTORNEYS
C/o
YOKWANA ATTORNEYS
10
New Street
MAKHANDA
Ref:
Mr Yokwana
Tel.:
046 –
622 9928
Date
Heard
17
February 2023
Date
Reserved
17
February 2023
Date
Delivered
23
February 2023
[1]
Page
12 of the indexed papers paragraph [18].
[2]
Section
3 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
[3]
2018
(5) SA 177
SCA at 192 paragraph [37].
[4]
[2007] ZACC 23
;
2008
(4) SA 367
CC at 414 [139].
[5]
2010
(4) SA 56
CC.
[6]
Joseph
supra
paragraph [2].
[7]
[2009] ZASCA 1
;
2009
(2) SA 277.