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[2023] ZAECELLC 20
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Ndongeni v Buffalo City Metropolitan Municipality and Another (EL805/2023) [2023] ZAECELLC 20 (25 July 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, EAST LONDON CIRCUIT COURT)
CASE
NO. EL 805/2023
NOT REPORTABLE
In
the matter between:
VELISWA
NDONGENI
Applicant
and
BUFFALO
CITY METROPOLITAN MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER BUFFALO CITY
METROPOLITAN
MUNICIPALITY
Second
Respondent
JUDGMENT
COLLETT AJ
INTRODUCTION:
[1]
This application came before me on 18 July 2023, having stood down
until 19 July 2023 due to the
congested motion court roll.
[2]
It was launched and pursued as a matter of urgency having initially
been enrolled on the normal
motion court day on 9
May
2023 in terms of
Practice Direction
12 (d).
[3]
On 9
May 2023 a
rule
nisi
was issued
granting the applicant the undermentioned relief:
“
1.
The Rules relating to the forms and service provided for in the
normal Rules of this Honourable Court, including
72 hours’
notice referred to in section 35 of the general Law Amendment Act of
1995 (Act 62 of 1995) are dispensed with.
2.
The applicant is granted leave to move this application on an urgent
basis in terms of Rule 6 (12) of
the Uniform rules of this court.
3.
The service of this application by the attorneys of record on the
second respondent’s office is
condoned.
4.
A rule nisi is issued calling upon respondents to show cause, if any,
on Tuesday: the 23
rd
day of May 2023 at 09h30 am as to why
the following orders granted today should made final:
4.1
The respondents are ordered
and directed to reconnect the electricity supply to the premises
situated at No. 1[…] N.U.[…],
with electricity meter No
070[…] and account number 101[…] forthwith.
4.2
The respondents are interdicted and
restrained from terminating and disconnecting the electricity supply
to the premises situated
at number 1[…], NU […],
Mdantsane with electricity meter No 070 […] and account number
101[…], without
the requisite 14-day notice.
4.3
The respondent are interdicted and
restrained from charging a reconnection fee.
4.4
Costs to be costs in the cause.
4.5
Paragraph
4.1, 4.2, 4.3 shall operate as mandamus and/or interim order pending
the finalization of this matter.”
[1]
[4]
Despite the aforementioned Court Order, the respondents failed to
reconnect the applicant’s
electrical supply.
[5]
Subsequently, on 22 May 2023 (a day before the return day of the
rule
nisi
), the respondents’ attorney sent an email to the
applicant’s attorney indicating that a functionary of the
respondents
had suggested that the electrical supply was not blocked
and could possibly be faulty.
[6]
Despite the unequivocal content of paragraph 4.1 of the
aforementioned Court Order, it was
suggested by the first
respondent that the applicant should log a maintenance call.
[7]
On the 23
May 2023, being the return day of the
rule
nisi
, the respondents’ legal representative assured the
applicant’s legal representative that the electrical supply was
in the process of being restored. The
rule nisi
was extended
until 20 June 2023.
[8]
Needless to say, the electrical supply was still not reconnected in
terms of the
rule
nisi
originally issued on 9 May 2023.
[9]
Consequently, the applicant launched a Contempt of Court application
on 5 June 2023. It
was only on this day that the electricity
supply was reconnected in terms of the aforementioned Court Order.
[10]
On 20
June 2023, after the electricity supply had
been reconnected, the
rule nisi
was further extended until 18
of July 2023 affording the respondents an opportunity until 23 June
2023 to file an answering affidavit.
[11]
Despite the provisions of the aforementioned Court Order dated 20
June 2023 relating to the filing
of the answering affidavit,
same was only filed on 11 July 2023.
THE
FACTUAL MATRIX
[12]
The applicant’s case was premised upon the disconnection of her
electrical supply on the 20
March 2023.
[13]
Pursuant to the aforementioned, the applicant attended at the offices
of the first respondent both on 21
March 2023 and 27 March 2023,
suffice to state that she was ultimately informed that her electrical
supply would be restored upon
payment of R16 500.00.
[14]
The applicant approached her attorneys on 13
April 2023
who in turn forwarded correspondence to the respondents seeking the
reconnection of the electrical supply and alleging
non-compliance
with the notice period as prescribed in the
By-l
aws. No
response hereto was forthcoming hereto.
[15]
Ultimately, the applicant launched the present application which
followed the route outlined
supra
.
[16]
The applicant submitted that the respondents have a duty to provide
electricity as a basic municipal right.
[2]
This was not in dispute.
[17]
It deserves mention that the respondents sought to file an answering
affidavit,
after
the electrical supply had been restored, in
opposition to the confirmation of the
rule
nisi
.
[18]
Essentially, the opposition is premised on the assertion that the
electrical supply was not disconnected
but was due to an electrical
fault. In support thereof, the respondents provided correspondence
dated 6 June 2023 (postdating the
contempt application) annexed to
the answering affidavit.
[3]
SUBMISSIONS
[19]
The respondents’ legal representative sought to persuade the
Court that the applicant should have established
the reasons why the
electrical supply had been disconnected as, since 1 March 2023, the
respondents no longer disconnected the
electrical supply of consumers
but applied the 80/20 deduction policy.
[20]
The argument was further developed to suggest that the applicant
should have logged a fault report relating
to the electrical supply.
[21]
It is apparent from the applicant’s founding affidavit that not
only did she attend at the offices
of the first respondent, address
correspondence to the first respondent but launched the present
application, culminating in four
court appearances and a contempt
application. The respondents were both aware of and legally
represented at all court appearances.
[22]
It is unconscionable for the respondents to suggest that the
applicant should have investigated and established
the existence of
an electrical fault particularly in my view of the fact that she had
been informed otherwise whilst attending
at the offices of the
respondents. It appears that this, by extension, would be the basis
upon which the respondents now seek to
retrospectively refute the
need for the
rule nisi
issued by this Court.
[23]
The assertion that because the 80/20 policy had been implemented from
1 March 2023, the electrical supply
could not have been disconnected
for arrears and that the applicant should have known this is
similarly disingenuous.
[24]
The fact of the matter is that the applicant took the steps as
aforementioned when her electrical supply
was disconnected and, on
their own version, the respondents should have reasonably been aware
that the disconnection was not in
respect of arrears and acted
accordingly by investigating the reason for such disconnection.
[25]
The reality is that from 1 March 2023 until 5 June 2023, the
applicant was deprived of electrical supply
to her premises at the
instance of the respondents, who have a duty to supply such service,
due to no fault on her part. The nonchalant
and tardy conduct of the
respondents and/or its officials leaves much to be desired.
[26]
Counsel for the applicant submitted that the need for confirmation of
the
rule nisi
has since been rendered academic and the issue
remaining is that of costs. In essence, this became the position when
the electrical
supply was restored on 5 June 2023. It defies
all logic as to why the
rule nisi
was further extended on 20
June 2023 for the respondents to file an answering affidavit
after
the fact
.
[27]
The history and chronology of the matter dictate that the opposition
raised to the confirmation of the
rule
nisi
was
vexatious, frivolous and unwarranted, particularly at a stage when
there had been compliance (albeit at the threat of contempt).
[28]
The conduct of the respondents in unnecessarily protracting this
litigation is deplorable. The respondents
were ordered by this
Court on 9 May 2023 to ‘
reconnect the electricity supply
’
and they failed to do so whatever the underlying
causa
was
found to be.
[29]
The entire debacle surrounding this application could and should have
been avoided if the respondents and/or
those acting on their behalf
had acted with due diligence when the applicant reported the
electrical disconnection, being mindful
of the alleged implementation
of the 80/20 policy from 1 March 2023.
[30]
The respondents’ conduct in unnecessarily prolonging the life
of this application is a flagrant abuse
of the court process and an
avoidable waste of public funds.
[31]
In the circumstances the following order is issued:
1.
The
rule nisi
is discharged.
2.
The respondents are ordered to pay the costs of the application
jointly and severally.
S A COLLETT
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant:
Mr
Foord
Instructed
by:
Tyali
Attorney, East London.
Ref.
Mr L Tyali
Counsel
for the Respondents:
Mr
Novukela
Instructed
by:
B
Bangani Attorneys, East London
Ref.
Mr Bangani
Date
heard:
19 July 2023
Date judgment
delivered:
25 July 2023
[1]
Record, Court Order dated 9 May 2023, page 64-65
[2]
Joseph
& Others v City of Johannesburg & Others
2010 (4) SA 55
(CC) para 34.
[3]
Respondents’
answering affidavit, page 83