SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1346/2022

In the matter between:
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY APPELLANT

and

VRESTHENA (PTY) LTD FIRST RESPONDENT
(Registration No 2001/05148/07)
THE BODY CORPORATE OF ZAMBEZI
RETAIL PARK SECOND RESPONDENT
ZAMBEZI RETAIL PARK INVESTMENTS
(PTY) LTD THIRD RESPONDENT
THUMOS PROPERTIES (PTY) LTD FOURTH RESPONDENT
ZRJ PROPERTIES (PTY) LTD FIFTH RESPONDENT
In Re:
VRESTHENA (PTY) LTD
(Registration No 2001/05148/07) APPLICANT
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY FIRST RESPONDENT
THE BODY CORPORATE OF

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ZAMBEZI RETAIL PARK SECOND RESPONDENT
ZAMBEZI RETAIL PARK
INVESTMENTS (PTY) LTD THIRD RESPONDENT
THUMOS PROPERTIES (PTY) LTD FOURTH RESPONDENT
ZRJ PROPERTIES (PTY) LTD FIFTH RESPONDENT

Neutral citation: City of Tshwane Metropolitan Municipality v Vresthena (Pty)
Ltd and O thers (1346/2022) [2024 ] ZASCA 51 (18 April
2024)
Coram: MOCUMIE, MBATHA and HUGHES JJA and KATHREE-
SETILOANE and KEIGHTLEY AJJA
Heard: 10 November 2023
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand -down of the
judgment is deemed to be 11h00 on 18 April 2024.

Summary: Civil Practice – Appealability of interim orders - order held to be
final in nature and appealable; municipal law – deliberate non -payment of
services - appellant failed to establish a prima facie right to continue to receive
electricity without payment.

3


ORDER


On appeal from; Gauteng Division of the High Court , Pretoria (Ndlokovane
AJ sitting as a court of first instance):
1 Condonation is granted and the appeal is reinstated.
2 The appeal is upheld with costs, such costs to include the costs
consequent upon the employment of two counsel where applicable.
3 The orders of the high court are set aside and replaced by the following
order:
‘The application is dismissed with costs , such costs to include the costs
consequent upon the employment of two counsel where applicable.’


JUDGMENT


Mbatha JA (Mocumie and Hughes JJA and Kathree-Setiloane and
Keightley AJJA concurring):

[1] The issues before this Court are whether the order granted by the Gauteng
Division of the High Court , Pretoria, per Ndlokovane AJ (the high court) is
appealable and if so, whether this Court should grant condonation , reinstate the
appeal and consider the merits thereof.

Background
[2] A brief summary of the history is required. The Zambezi Retail Park
Centre ( the Retail Park ) is a large commercial property situated at Erf 5
Derdepoort, R573 Meloto & R513 Zambezi. The Zambezi Retail Park Sectional
Title Scheme was established in 2006 comprising eight sections. On 8 July 2010

4

the scheme was extended to include section 9. Section 1 to 4, 7 and 8 in the
building are owned by the First Respondent, Vresthena (Pty) Ltd (Vresthena),
which leases them to various business entities. The management of the scheme
in terms of the Sectional Titles Act 95 of 1986 (the Act) vests in the Body
Corporate’s trustees elected on 19 June 2018.

[3] The City provides electricity to the aforementioned properties, through
the Body Corporate of Zambezi Retail Park (the Body Corporate). It is common
cause that historically a petrol station , situated within the scheme, has always
had a separate account with the City and a separate electricity connection. Save
for the petrol station, the owner of which is not a party to this appeal, the City
supplies electricity through a single supply point to the different sectional title
units. The Body Corporate is billed accordingly. As of January 2022, due to the
continuous failure by the Body C orporate to pay for services , the City
implemented credit control measures, which included the disconnection of
electricity in an attempt to collect the outstanding revenue. T hese measures
were resisted by Vresthena. Consequently, Vresthena filed an urgent application
in the high court . In P art A, which dealt with urgent relief, it sought an order
compelling the City to accept and reconsider its application for a separate
electricity connection for its sections of the Retail Park. In addition, it sought
restoration of the electricity and wa ter supply to the Retail Park . The relief in
Part B, which was not sought urgently, was conditional on the application for a
separate e lectricity connection being rejected by the City. In th at case,
Vresthena recorded in Part B that it would seek an order reviewing the rejection.

[4] On 20 June 2022, the high court granted the following order in respect of
the urgent, Part A, relief:

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‘1. The matter is certified as semi -urgent and the parties may approach the opposed
motion Registrar for an expedited hearing date on the opposed motion roll where the
remainder of the relief, and Part B will be dealt with.
2. Pending the hearing, the first respondent is ordered to restore electricity and/or water
supply to the property known as Erf 5 Derdepoort, R573 Meloto & R513 Zambezi within 14
days of this order.
3. The first respondent is ordered to provide an updated and accurate reconciliation of
the second respondent’s electricity consumption account, reflecting the current and due
outstanding amount, to the second respondent’s attorney of record by 24 June 2022.
4. In the event that the second respondent wishes to dispute any of the amounts reflected
on the reconciliation referred to in paragraph 2 above, then and in that event:
4.1 the second respondent will declare a formal dispute in terms of the Credit Control By -
laws of the first respondent within 10 days after the receipt of the reconciliation as
contemplated in paragraph 2 above, which [dispute] will be served via email on the following
addresses:
4.1.1 M[…]
4.1.2 W[…]
4.1.3 c[…]a
4.2 The first respondent will provide the second respondent with a written response to the
aforementioned dispute within 14 days after receipt of such dispute.
4.3 The necessary adjustments will be made on the account of the second respondent.
4.4 This does not affect the rights of any party to follow any process that is available to them
in law.
5. The applicant is ordered to table a resolution to the second respondent and its
members within 7 days of the order being granted, to the effect that:
5.1 The second respondent will monitor alternatively appoint an independent service provider
to monitor, the consumption of each of the section owners.
5.2 The second respondent will account to the owners and collect payment [from each]
section owner’s consumption of electricity.

section owner’s consumption of electricity.
5.3 The second respondent will pay over the funds so collected from members to the first
respondent timeously.
5.4 Each section owner will be liable for, and will duly pay, its electricity consumption to the
second respondent and should any member of the second respondent fail to do so, the second

6

respondent be authorised to internally disconnect the electricity su pply to the non -paying
section.
6. In the event that the first respondent fails to comply with paragraph 2 of this order
timeously, the applicant is authorised to instruct an electrician and/or service provider to
reconnect the electricity and/or water supply in such event, the applicant reserves its right to
claim such reasonable costs from the first respondent.
7. For as long as the electricity is connected to Erf 5 Derdepoort, R573 Meloto & R513
Zambezi, the applicant will make payment of its consumption to the first respondent unless
the parties come to an alternative arrangement.
8. In relation to the proceedings of 16 June 2022, each party will pay their own costs.
9. Both parties are authorised to approach this Honourable Court in the future, if need
be, on the same papers, duly supplemented for further relief as the case may be necessary.’
For the sake of clarity, the reference to ‘first respondent’ in the order is to the City, and t he
‘second respondent’ is a reference to the Body Corporate. Dissatisfied with the outcome of
the application the City sought leave to appeal. The appeal serves before us with leave of the
high court.’

Appealability of the order
[5] Vresthena submitted that the order was not appealable on the basis of its
interim nature. In that regard, it submitted that : (a) the order caters for the
interim period until the remainder of the relief in Part A and P art B have been
determined on an expedited basis; (b) that in terms of paragraph 9 of the order
the parties may supplement their papers and approa ch the court for further
relief; (c) that its application for a separate supply of electricity was attached to
its court application and upon the granting of the order the City would decide on
the application; (d) i f the application is granted, nothing will prevent the City
from pursuing the Body Corporate for arrear amounts; (e) a nd if the application

from pursuing the Body Corporate for arrear amounts; (e) a nd if the application
is not granted only then would the ma tter proceed to the balance of Part A and
Part B.

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[6] In addition, Vresthena advanced the argument that the order is not
definitive of the rights of the parties in that paragraph 1 of the order in Part A
dispenses with the argument that the order dispossesses the City of a substantial
portion of the relief sought. Additionally, i t submitted that as the order falls
outside of the Zweni triad, it is not appealable on other grounds. Lastly,
Vresthena contended that paragraph 1 of Part A opened the door to any of the
litigants to approach the court on an expedited hearing date on the oppose d
motion roll where the remainder of the relief, and Part B will be dealt with.

[7] To the contrary, t he City contended that the order is appealable in that it
is final in effect and falls within the Zweni triad.1 It submitted that the order
granted by the high court is not purely interlocutory as it cannot be corrected,
altered or set aside by the judge who granted it at any time before the final
judgment. In addition, it argued t hat the order failed to take in to account the
constitutional obligation that rests on the City to collect outstanding revenue for
the purpose of providing basic services to the residents in its area of jurisdiction,
as contemplated in the C onstitution of the Republic of South Africa , Act 108 of
1996 (the Constitution) and other relevant legislation. The order was granted in
favour of Vresthena even though it did not meet all the requirements of an
interdict, in particular the consideration of other possible remedies at the
disposal of Vresthena.

The legal principles regarding the appealability of court orders
[8] The traditional approach to appealability of court orders is generally
regarded as being that set out in Zweni. In that case it was held that for an order
to be appealable, ‘the decision must be final in effect and not susceptible to
alteration by the court that granted the order, it must be definitive of the rights

alteration by the court that granted the order, it must be definitive of the rights

1 Zweni v Minister of Law and Order of the Republic of South Africa [1992] ZASCA 197; [1993] 1 All SA 365
(A).

8

of the parties and it must have the effect of disposing of at least a substantial
portion of the relief sought in the proceedings ’.2 These principles have been
confirmed in various decisions as extrapolated in the judgment of this C ourt in
FirstRand Bank Ltd v McLachlan and Others .3 However, as noted recently by
this Court, there have subsequently been significant developments in our law in
this regard.4 In City of Cape Town v South African Human Rights Commission 5
it was held that:
‘After confirming that the interests of justice were paramount in assessing the appealability of
an interim ord er, the Constitutional Court in National Treasury and Others v Opposition to
Urban Tolling Alliance and Others went on to set out what factors a court should consider in
assessing where the interests of justice lay:
“. . . To that end, [a court] must have regard to and weigh carefully all the germane
circumstances. Whether an interim order has a final effect or disposes of a substantial portion
of the relief sought in a pending review is a relevant and important consideration. Yet, it is
not the only or always decisive consideration. It is just as important to assess whether the
temporary restraining order has an immediate and substantial effect, including whether the
harm that flows from it is serious, immediate, ongoing and irreparable.”
The interests of justice standard will inevitably involve a consideration of any irreparable
harm. To successfully appeal an interim order an applicant will have to show that it will
suffer irreparable harm if the interim appeal were not granted. Even so, stated the
Constitutional Court in International Trade Administration Commiss ion v SCAW South
Africa (Pty) Limited, irreparable harm although important, is not the sole consideration and
the interests of justice require an evaluation of a number of factors:
“. . . The test of irreparable harm must take its place alongside other important and relevant

“. . . The test of irreparable harm must take its place alongside other important and relevant
considerations that speak to what is in the interests of justice, such as the kind and importance
of the constitutional issue raised; whether there are prospects of success; whether the
decision, although interlocutory, has a final effect; and whether irreparable harm will result if
the appeal is not granted . . .”

2 Ibid para 12.
3 FirstRand Bank Ltd v McLachlan and Others [2020] ZASCA 31; 2020 (6) SA 46 (SCA) paras 21-22.
4 Cyril and Another v Commissioner for the South African Revenue Service [2024] ZASCA 32 para 7.
5 City of Cape Town v South African Human Rights Commission [2021] ZASCA 182 paras 10-12.

9

The first enquiry is to ascertain whether the orders granted by the high court have a final
effect. For this it is necessary to compare the orders granted in respect of Part A and the
orders sought in Part B, to ascertain to what extent they overlap.’

[9] In TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings
(Pty) Ltd and others (TWK),6 this Court dealt with the issue of appealability and,
in particular the role of the overarching principle of the interest s of justice. It
favoured the doctrine of finality as the lodestar guiding the determination of
whether an order is appealable because:
‘… It allows for the orderly use of the capacity of this Court to hear appeals that warrant its
attention. It prevents piecemeal appeals that are often costly and delay the resolution of
matters before the high court. It reinforces the duty of the high court to bring matters to an
expeditious, and final, conclusion. And it provides criteria so that litigants can determine,
with tolerable certainty, whether a matter is appealable. These are the hallmarks of what the
rule of law requires.’7
The sentiments expressed in TWK, regarding avoiding the piecemeal
adjudication of an appeal and its consequences, were affirmed by the
Constitutional Court in Cloete and Another v S; Sekgala v Nedbank Limited 8
where it held that:
‘In any event, this Court has held that in considering whether to grant leave to appeal, it is
necessary to consider whether “allowing the appeal would lead to piecemeal adjudication and
prolong the litigation or lead to the wasteful use of judicial resources or costs”. Similarly, in
TAC I, this Court stated that “it is undesirable to fragment a case by bringing appeals on
individual aspects of the case prior to the proper resolution of the matter in the court of first
instance”. This is one of the main reasons why interlocutory orders are generally not
appealable while final orders are.’

appealable while final orders are.’


6 TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others [2023] ZASCA 63;
2023 (5) SA 163 (SCA) para 19.
7 Ibid para 21.
8 Cloete and Another v S; Sekgala v Nedbank Limited [2019] ZACC 6; 2019 (5) BCLR 544 (CC); 2019 (4) SA
268 (CC) para 57.

10

[10] TWK did not consider the Constitutional Court’s judgment in United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and
Others,9 which affirmed the role of the interests of justice in this Court’s
consideration of the question of appealability . The effect of Lebashe is that just
because an order is interlocutory is not decisive as to its appealability.10 This
Court recently held in Nedbank Limited and Another v Survé and Others 11 that
‘(i)n a matter where no case was made out for an interim interdict and the order
accordingly ought never to have been granted in the first place, along with other
relevant considerations, interests of justice might well render an interim
interdict appealable despite the Zweni requirements not having been met’. In
Lebashe, the Constitutional Court was moved to consider an interim order
appealable because of the grave prejudice it caused to the constitutional
protection of freedom of expression .12 In Survé this Court similarly found an
interim order that was based on a prima facie finding , by the equality court, that
the interdicted party had committed an act of unfair racial discrimination , to be
appealable. In arriving at that decision, this Court took into account the serious
reputational repercussions for the interdicted party in allowing an order to stand
in circumstances where it ought never to have been made in the first place.13

[11] In sum, then, on the jurisprudence as it stands, an interim order may be
appealable, taking into account a range of factors . The Zweni requirements play
an important role in determining the issue of appealabi lity in a particular case,
but they are not immutable. The interests of justice continue to play a
substantial role in the inquiry . What those interests are involves a finely
weighed consideration of relevant factors in each case.

9 United Democratic Movement and Another v Lebas he Investment Group (Pty) Ltd and Others [2022] ZACC

34; 2023 (1) SA 353 (CC0; 2022 (12) BCLR 1521 (CC).
10 Cyril para 8.
11 Nedbank Limited and Another v Survé and Others [2023] ZASCA 178; [2024] 1 All SA 615 (SCA) para 18.
12 Lebashe para 45.
13 Survé para 30.

11


Evaluation
[12] With regard to the orders granted by the high court in Part A and P art B
in this matter, one of the question s that need to be considered is whether the
orders are final in nature , more particularly in their effect , rather than their
form.14 I agree with the City’s submissions that what needs to be considered is
the consequences of the orders and the conditions brought about by what
Vresthena considers to be interim orders. The effects thereof which may not be
capable of being undone and a fresh order may be require d to reverse the final
effect thereof.

[13] The order s that were granted by the hi gh court have a number of
shortcomings. First, the order does not make reference to the application for an
additional electricity s ervice connection as sought by Vresthena in paragraph 1
of Part B of the notice of motion. Second, the duration of the order is indefinite
which means that it shall endure until such time that the legal process in Part B
is completed. This leaves all the parties in a state of uncertainty . Third, there is
no causal link between the order granted by the court in Part A and Part B of the
notice of motion . Part A directs the City to continue to supply electricity and
water to the entire Retail Park pending the resolution of Part B. However, Part B
is directed only at a possible review of a possible decision by the City to refuse
Vresthena’s application for a separate supply to the units or sections owned by
it. What is more, there is no time frame lai d down for the anticipated review or
for Vresthena to file its application with the City for a separate electricity
supply as contemplated in s 7 of its By-laws. Therefore, the court order does not
set out steps to regulate Part B of the application. Fo urth, the restoration of
electricity without the provision for the payment of arrears creates an anomaly
in that the City is forced to provide electricity to the property where payment is

14 Lebashe para 41.

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not being made. Lastly, the chilling effect of the order is that it compels the City
to act contrary to the prevailing law and its constitutional mandate : it must
continue to supply electricity to users who are in arrears and have a history of
non-payment for the foreseeable future, and at the same time the City is denied
the statutory power to terminate services without approaching a court to obtain
leave to do so . These characteristics of the order demonstrate that its effect is
final in nature. At the very least, for reasons I traverse below, this is one of
those cases where the relief sought ought to have never been granted, and the
order is appealable on this basis too.

[14] I do not agree with the a rgument submitted on behalf of Vresthena on a
number of grounds. The doctrine of finality as envisaged in TWK cannot be
blindly applied to an interim order which is final in effect and where a grave
injustice would result. It was submitted on behalf of Vresthena that Part A of
the order balanced the competing interest of the p arties, pending the hearing of
Part B, in that el ectricity will be provided and Vresthena will pay the City for
the electricity consumed, whilst the dispute relating to the accuracy of the
account can be registered and reviewed in the inter im. As alluded to already,
this argument is fla wed as it does not address the payment of arrears. In
addition, the argument is made against the backdrop that the electricity would
be restored to the entire Retail Park. Disturbingly, however, the order places no
direct obligation on other owners to pay for their consumption of electricity. It
merely directs the applicant to place a resolution before the Body Corporate as
to how payment to it , and hence to the City , should be dealt with in future. In
other words, the City is obliged to reconnect services to all owners without a
concomitant obligation on all of them to pay for the services they use. Lastly,

concomitant obligation on all of them to pay for the services they use. Lastly,
there was no mention that Vresthena ha s made any arrangements for the
payment of arrears to the City or the Body C orporate. The order simply

13

insulates the Body Corporate and it s members from payment for the
consumption of electricity. This is bound to lead to irreparable harm to the City.

[15] Vresthena’s argument that P art B would be determined on an expedited
basis is misplaced as the order is silent on the time frames. Vresthena relies on
paragraph 9 of the order in P art A which states that ‘both parties are authorized
to approach this honourable Court in the future, if needs be, on the same papers
duly supplemented for further relief as the case may be ’. The order as framed is
disjunctive. As it stands, paragraph 9 refers to the variation of the orders which
have no relation to each other . This would have the effect that Vresthena and
the Body Corporate would enjoy carte blanche the supply of the electricity to
the Retail Park without making payments to the City. I conclude by making a
finding that the order is thus appealable.

[16] This finding on appealability of the order has a direct link to the
determination of the application for condonation for the late filling of the notice
of appeal and reinstatement of the appeal by the City . Having considered the
opposed application on this, I find the expl anation reasonable and that there are
indeed strong prospects of success on the merits. Consequently, condonation is
granted and the appeal is reinstated.

The merits of the application
The law
[17] In Vresthena’s application for an interdict, it sought an order directing the
City to continue to restore and continue to supply the whole Retail Park with
electricity while it applied for a separate electricity supply point. The question is
whether the high court erred in finding that it had met the requirements for an
interdict of this nature, particularly in light of the City’s powers and obligations
in respect of the supply of electricity.

14


[18] It is important that I should set out the relevant provisions of the law that
govern the supply of electricity to the people of South Africa. The duty of the
municipality to provide electricity is regulated by t he Constitution, statutes and
By-laws. The relevant provisions of the Constitution are as follows:
‘152. Objects of local government
(1) The objects of local government are—
(b) To ensure the provision of services to communities in a sustainable manner;. . .
(2) A municipality must strive, within its financial and administrative capacity, to achieve the
objects set out in subsection (1).
153. Developmental duties of municipalities
A municipality must—
(a) Structure and manage its administration and budgeting and planning processes to give
priority to the basic needs of the community, and to promote the social and economic
development of the
community; and . . .
156. Powers and functions of municipalities
(1) A municipality has executive authority in respect of, and has the right to administer—
(a) The local government matters listed in Part B of Schedule 4 and Part B of Schedule 5;
and …
(2) A munici pality may make and administer B y-laws for the effective administration of the
matters which it has the right to administer.’ (Emphasis Added.)

[19] The provision of electricity is a local government competency . Amongst
the general duties of a municipality set out in s 73(1)(c) of the Local
Government Municipal System s Act 23 of 2000 (the System s Act), is that a
municipality ‘must ensure that all members of the local community have access
to at least the minimum level of basic services’ . Section 73 (2)(c) requires a
municipality to be financially sustainable. In order to realise that goal, Chapter 9
of the System s Act regulates credit control and debt collection measures for

15

services rendered by the municipality. Section 96 of the Systems A ct15 places
the debt collection res ponsibility on the municipality. As a result, in terms of s
98 of the Systems Act, a municipal council must adopt By-laws to give effect to
its credit control and debt collection policy, its implementation an d
enforcement.16

[20] It is apposite that I should highlight the relevant provisions of the City of
Tshwane Metropolitan Municipality Standard Electricity Supply By -laws
(2013) (the By-laws):
‘1. Definitions
“Consumer” means the occupier of any premises of which the Municipality has agreed to
supply or is actually supplying electricity. . .
4. Supply by agreement
(1) No person may use and no person is entitled to use an electricity supply (new or existing)
or consume electricity from the Municipality unless or until such a person has:
(a) entered into an agreement in writing with the Municipality for the supply and
consumption of electricity, and the agreement, together with the provisions of these By -laws,
in all respects governs the supply and consumption of electricity to and by the relevant person
with whom the municipality concludes such agreement; and . . .
(3) If in respect of any premises, an applicant, occupier or consumer is not the registered
owner of the premises, an agreement in writing between the owner of the premises and the
consumer for the rendering of a connection is required beforehand. The agreement reached
binds both the consumer and the owner of the premises. . .
18. Payment of charges

15 Debt collection responsibility of municipalities. —A municipality—
(a)must collect all money that is due and payable to it, subject to this Act and any other applicable legislation;
and
(b) for this purpose, must adopt, maintain and implement a credit control and debt collection policy which is
consistent with its rates and tariff policies and complies with the provisions of this Act.

consistent with its rates and tariff policies and complies with the provisions of this Act.
16 By-laws to give effect to policy. — (1) A municipal council must adopt B y-laws to give effect to the
municipality’s credit control and debt collection policy, its implementation and enforcement.
(2)By-laws in terms of subsection (1) may differentiate between different categories of ratepayers, users of
services, debtors, taxes, services, service standards and other matters as long as the differentiation does not
amount to unfair discrimination.

16

(1) The consumer is liable for all electricity supplied, whether metered or unmetered, to his
or her premises, including electricity supplied on a prepayment basis, at the prescribed tariff,
a copy of which is obtainable from the Municipality during normal office hours at the
prescribed fee.
(2) The Municipality must render an account to the consumer on a regular basis in respect of
electricity which is metered by means of a conventional meter (excluding consumers with
unmetered electricity supply in accordance with an agreement with the Municipality). The
municipality must provide on the account all information (meter readings, dates, etc) on
which the account is based.
(3) All accounts envisaged in sub-section (2) are deemed payable on the due date reflected on
the account and, on the consumer's failure to pay, the Municipality must notify the consumer
and eventually disconnect the electricity supply to the premises of the consumer. The account
as issued is considered the first notification of the amount payable.
(4) As regards the accounts envisaged in sub -section 2, an error or omission on any account
from the Municipality or failure by the Municipality to render an account does not relieve the
consumer of the obligation to pay the amount due for electricity supplied to and consumed at
the premises . The onus is on the consumer to ensure that the account rendered is in
accordance with the prescribed tariff, charges and fees for and in respect of the electricity
supplied to the premises.
. . .
21. Right to disconnect and suspend supply and the purchase of electricity on a
prepayment basis
(1) The Municipality and the contractor acting on the instruction of the Municipality, shall
have the right, after giving notice, to disconnect, suspend, curtail or reduce the electricity
supply to any premises and/or suspend, curtail, reduce, or halt the purchase of electricity by a
consumer on a prepayment basis if –

consumer on a prepayment basis if –
(a) the consumer or another person liable for payment for the supply of electricity to the
premises and/or for payment for any other municipal services in respect of the premises, fails
to pay any charge due to the Municipality in respect of any electricity supplied and/or any
other municipal service provided by the Municipality in respect of the premises, has failed to
effect payment timeously to the Municipality.’ (Emphasis Added.)

Evaluation of the merits

17

[21] I have taken into account that Vresthena does not have a contract with the
City. The contract is between the City and the Body Corporate. The Body
Corporate, which Vresthena alleges to be dysfunctional did not bring the
application. Although the Body Corporate was cited as the second respondent, it
did not oppose the application nor did it file any supplementary affidavits in
support of the application by Vresthena.
[22] It is common cause that there is a history of non -payment for electricity
services since the time when the property was under the control of the previous
owner of the relevant sections Div Prop 11 (Pty) Ltd and Div Prop 12 (Pty) Ltd
(Div Prop), and thereafter their liquidators. As long ago as 11 December 2015,
the City was ordered to reconnect the electricity supply to Div Prop’s sections
and Div Prop was ordered to settle the amount of R2.7 million owed to the City
in tranches. On 15 January 2016 Mystra (Pty) Ltd (Mystra), which owned the
Super Spar and Tops, applied for a separate electricity account. The application
was, however, declined by the City engineer. The reason given was that no
separate connections can be given to sectional title sections , as the contract was
with the Body C orporate. In terms of the court order, the liquidators had until
September 2017 to settle their debt with the City, which they did.

[23] On the 3 October 2017, the Body C orporate had applied for a new
account with the City and entered into a new agreement for the provision of
services for the Retail Park . On 14 February 2018, the City disconnected
electricity due to non -payment. Mystra and Vresthena brought an urgent
application to court for the reconnection of the elec tricity supply, and they
sought a separa te electricity supply. They did not cite the Body C orporate in
that application.

[24] The most significant development was that on 19 June 2018 a special
general meeting of the Body C orporate was held, wh ere new trustees were

18

elected. They were given the mandate to address the electricity issue. According
to Vresthena they did nothing. Vresthena alleged that on 19 February 2019 they
applied for a prepaid meter, which application was decline d by the C ity. The
City always maintained a view that owners of the sections must sort out the
governance with the Body Corporate that had a contract with the City. The City
maintained that by January 2022 the Retail Park owed it an amount in excess of
R24 million. No payment had been made since November 2017 when the Body
Corporate took over from the liquidators. The bulk supply system, according to
the City was chosen by the Body Corporate and as a result, Vresthena could not
seek to have a separate meter installed. Vresthena countered by stating that they
were not liable for the entire amount to the City as part of the debt ha d
prescribed.

[25] The Constitutional Court in Mkontwana v Nelson Mandela Metropolitan
Municipality17 held that electricity is a component of basic services and that
municipalities are constitutionally and statutorily obliged to provide the ir
residents with electricity. However, non -payment for such services has a
negative impact on the provision of such s ervices by the municipalities. In that
regard citizens have to pay for such services. As a form of credit control, any
municipality has a statutory right to terminate such services on notice. Section
102 of the Systems Act gives municipalities a discretion to implement any debt
collection and credit control measures provided for in the A ct. The City relies
on s 21 of the Standard Electricity Supply By -law (2013) (the Electricity By -
Law), which reaffirms its right to disconnect the supply of electricity.

[26] Section 4(1) of t he Electricity By-law provides that the provision of
electricity is governed by the agreement between the City and the relevant

17 Mkontwana v Nelson Mandela Metropolitan Municipality [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2)

BCLR 150 (CC) paras 35 and 38.

19

person who has conclude d the agreement with the City. Section 4(3) provides
for cases where the applicant is not the reg istered owner of the premises. In that
case, there must be an agreement in writing between the parties which binds
both the consumer and the owner of the premises. Section 18 regulates the
payment for all the electricity supplied, whether metered or unmetered. The
City is obligated to render a n account to the consumer on a regular basis. In the
event that the consumer fails to pay, the City must notify the consumer and
eventually disconnect the electricity supply to the premises of the consumer,
which is in terms of s 18(3). Section 18 (4) provides that ‘[a]s regards the
accounts envisaged in sub-section 2, an error or omission from the Municipality
or failure by the Municipality to render an account does not relieve the
consumer of any obligation to pay for the amount due for electricity supplied to
and consumed at the premises. The onus is on the consumer to ensure that the
account rendered is in accordance with prescri bed tariff, charges and fees in
respect of` the electricity supplied to the premises’.

[27] In Joseph and Others v City of Joh annesburg and Others 18 (Joseph) the
Constitutional Court held that municipalities are obliged to provide electricity to
residents in their ar ea as a matter of public duty. The duty to pro vide electricity
is set out in ss 152(1) and 153 of the Constitution read together with the duties
of the municipal councils set out in ss 4(2) and s 73 of the S ystems Act. This
creates a reciprocal obligation. If debts are not paid to the municipality it has a
constitutional duty to implement debt collection measures. The Constitutional
Court in Joseph as per Yacoob J held that ‘it is important for unpaid municipal
debt to be reduced by all legitimate means ’.19 In a separate concurring judgment
O’Regan J affirmed that ‘[t]here can be no doubt that municipalities bear an

O’Regan J affirmed that ‘[t]here can be no doubt that municipalities bear an

18 Joseph and Others v City of Johannesburg and Others [2009] ZACC 30; 2010 (3) BCLR 212 (CC) 2010 (4)
SA 55 (CC).
19 Ibid 42.

20

important constitutional obligation and a statutory responsibility to take
appropriate steps to ensure the efficient recovery of debt’.20

[28] Vresthena submitted that since the disconnection of ele ctricity on 13
April 2022, the Body C orporate endeavoured to negotiate the outstanding
account with the City, but to no avail. It submitted that part of the debt was no
longer claim able as it had prescribed. The responsibility for the payment of
electricity rest ed squarely on the Body C orporate, that is the Body Corporate
manager, the Retail Park and no one else, as it had entered into a contract for a
bulk supply of electricity with the C ity as from October 2017. The owners of
the various sections of the Sectional Titles Scheme are in terms of the Sectional
Titles Act, obli ged to pay their levies to the Body C orporate, who in t urn must
pay for electricity and other services.

[29] Vresthena has not given any reasons why the Body C orporate has failed
to make payment for the consumption of the elec tricity in the Retail Park. There
was no averment by Vresthena that, they, as owners of various sections , have
made p ayments to the Body C orporate, nor compelled the Body Corporate to
perform its mandate. They simply allege that the Body C orporate is
dysfunctional and expect the municipality to regulate the Body C orporate’s
affairs. A municipality has no right to interfere in the affairs of the Sectional
Titles Scheme. I find it disturbing that instead of compe lling the Body
Corporate, whom Vresthena cited as a second respondent, to perform its
mandate, it failed to do that. Vresthena and other owners have a remedy in
terms of the Sectional Ti tles Act, which entitles them to appoint new and
effective trustees, but they have not resorted to that.


20 Ibid 43.

21

[30] In its founding affidavit, Vresthena merely states that new trustees were
appointed, and their mandate was to sort the electricit y issue out, but nothing
happened. The Retail Park is a business complex which leases premises to ‘blue
chip companies’, but its Body C orporate fails to pay t he necessary dues to the
City. This means that the City is financing Vresthena and other sectional title
owners in their business interests.

[31] Electricity is a basic municipal service .21 Section 2 of the N ational
Energy Act 34 of 2008 provides that its object amongst others , is to ensure an
uninterrupted supply of energy to the nation and to facilitate energy access to
improve the quality of life of South African people. However, the right to
access electricity is not absolute. Non -payment for the provision of electricity
impacts negatively on the supply thereof . Chapter 9 of the Systems Act
regulates the credit control and debt collectio n processes of the municipality,
which ensures the viability of the municipalities.

[32] From this it may be concluded that Vresthena and the other owners of the
sections had no right, even prima facie, to continue to receive electricity without
payment for those services. The City was enjoined to implement the credit and
debt collection measures against the Body Corporate and terminate the supply
of electricity to the Retail Park . The order of the high court failed to take this
into account. It assumed, despite the history of ongoing non-payment over many
years, that Vresthena and the other owners had a right to receive electricity and
ordered the restoration of its supply without imposing the reciprocal obligation
on the owners for payment of the substantial arrear amount. It even sanctioned
the illegal reconnection of electricity by civilians other than the City. The high
court failed to consider whether Vresthena had other alternatives , when i t

court failed to consider whether Vresthena had other alternatives , when i t

21 Joseph and Others v City of Johannesburg and Others [2009] ZACC 30; 2010 (3) BCLR 212 (CC) 2010 (4)
SA 55 (CC) para 34.

22

clearly did. As already alluded to, Vresthena and the other owners have recourse
against the Body Corporate. It is not enou gh for them to say that the Body
Corporate is dy sfunctional and , therefore, it cannot take steps to rectify the
situation regarding payment to the City for the electricity consumed by the
commercial owners of sections in the Retail Park.

[33] In effect, the high court’s order impermissibly interfered with the
constitutional obligation on the City to ensure the collection of revenue for the
services it provides . Consequently, the high court sh ould not have granted the
order as it did not satisfy the requirements of an interdict.

[34] As a result, the following orders are made:
1 Condonation is granted and the appeal is reinstated.
2 The appeal is upheld with costs, such costs to include the costs
consequent upon the employment of two counsel where applicable.
3 The orders of the high court are set aside and replaced by the following
order:
‘The application is dismissed with costs, such costs to include the costs
consequent upon the employment of two counsel where applicable.’




_____________________
Y T MBATHA
JUDGE OF APPEAL

23

Appearances

For the applicant: M A Dewrance SC and N Erasmus
Instructed by: Diale Mogashoa Attorneys, Pretoria
Honey Attorneys, Bloemfontein.

For the respondent: M Louw
Instructed by: Wiese and Wiese Inc, Pretoria
Hendre Conradie Inc, Bloemfontein.