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[2023] ZAECELLC 22
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Ntantiso v Buffalo City Metropolitan Municipality (EL869/2023; EL895/2023) [2023] ZAECELLC 22 (1 August 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 CIRCUIT DIVISION, EAST LONDON]
CASE
NO.: EL 869/2023
In
the matter between: -
BULELWA
NTANTISO
APPLICANT
And
BUFFALO
CITY METROPOLITAN MUNICIPALITY
1
ST
RESPONDENT
THE
MUNICIPAL MANAGER, BUFFALO CITY
METROPOLITAN
MUNICIPALITY
2
ND
RESPONDENT
And
CASE
NO. EL 895/2023
MASIBULELE
MAQHASHU
APPLICANT
and
BUFFALO
CITY METROPOLITAN MUNICIPALITY
1
ST
RESPONDENT
THE
MUNICIPAL MANAGER, BUFFALO CITY
METROPOLITAN
MUNICIPALITY
2
ND
RESPONDENT
JUDGMENT
NORMAN
J:
[1]
There are two applications to be decided herein. The parties agreed
that because the facts are
similar, the relief sought is the same and
the points of law raised are the same, only one judgment should be
delivered in respect
of both matters. The first matter relates to Ms
Bulelwa Ntantiso and the second matter involves Mr Masibulele
Maqhashu.
[2]
The first respondent is the Buffalo City Metropolitan Municipality
(the municipality). It is common
cause that the municipality is
established in terms of the Constitution, the Local Government
Municipal Structures Act 117 of 1998
(‘the Structures Act’),
the Local Government Municipal Systems Act 32 of 2000 (‘the
Systems Act’). It has
promulgated the Buffalo City Electricity
Supply Bylaws (the bylaws) published in the provincial government
gazette No. 2245 of
10 December 2009.
[3]
The second respondent is the city manager whose powers and functions
are set out in both the Structures
and Systems Acts. He is the
accounting officer of the municipality and is the functionary who has
the power to direct compliance
with any of the orders that the court
may grant.
[4]
The applicants brought these applications on an
urgent basis, each seeking a rule
nisi
returnable on 4 July
2023 at 09h30 for an order in the following terms:
“
3.1.
That the debt collection procedure of the respondents applied towards
the applicant’s right to purchase electricity
to the premises
since 3 March 2023 to date be and is hereby declared unlawful.
3.2
That the respondents are directed to note that the applicant is a
tenant to the property.
3.3
That the respondents are directed to give recognition to the
constitutional rights of the applicant
as tenant; and
3.4
Flag this account/meter as one in respect of which the applicant is
not responsible for the payment
of any areas;
3.5
That the respondents be and are hereby directed to refund and/or
credit the applicant all deductions
made from the 3
rd
of
March 2023 to date of finalization of the application;
3.6
That the respondents be and is hereby interdicted and restrained from
applying their debt collection
against the applicant in respect of
any amounts as the applicant has no contractual responsibility
towards the first respondent;
3.7
That the respondents are directed to pay the costs of this
application.”
[5]
Both applications are opposed by the respondents. I shall state
the relevant facts in each
case and thereafter deal with the cases as
one.
Relevant
facts in the Ntantiso matter
[6]
Ms Bulelwa Ntantiso alleged:
6.1.
That she is a tenant. She occupies property number 6[…], NU[…]
Mdantsane, East London. She
has no contractual relationship with the
respondents because although she occupies the property, the utility
account is still registered
in the name of the deceased. The owner of
the property was Ms Agnes Nontsumentse Ntantiso who passed away on 17
November 2016 (the
deceased). For reasons unknown to her, the
deceased’s estate has not been finalized and it is for that
reason that the applicant
has instructed her attorneys to finalize
the estate. Her income is extremely limited and she depends on family
and friends.
6.2
She sought condonation for her failure to comply with the rules of
court in relation to the service
and time frames including 72 hours’
notice referred to in section 35 of the General Law Amendment Act, 62
of 1995. She alleged
that the system of partial blocking, restricting
services is controlled by the debt management department of the
second respondent.
6.3.
She had a verbal agreement with her family that she would occupy and
rent the property from the estate until
such time as the estate was
wound up. She contends that it is the estate of the deceased that is
responsible for payment of the
amounts that are being owed to the
respondents. She is responsible for payments of her monthly rental to
the estate, the upkeep
of the premises in terms of the verbal lease
agreement and for buying and loading electricity on the pre-paid
meter.
The issue
6.4.
Since 3 March 2023, whenever she purchased prepaid electricity from
the respondents’ agency, she received
restricted units on each
occasion with the balance being allocated to what was termed as ‘debt
amount’. In this
regard, she attached slips evincing
these deductions. She was advised that the respondents apply a debt
collection procedure where
80% of the money spent on prepaid
electricity is deducted and 20% thereof becomes the value of the
electricity that is provided
to the consumer.
6.5. She submitted
that the credit control policy has not been approved by the council
and therefore the actions of the municipality,
of enforcing it are
unlawful. She contends that the municipality does have a credit
control bylaw which was approved by council
and promulgated, which
makes no mention of debt collection procedures. She stated that in
terms of the bylaw the municipality simply
blocks the consumer’s
electricity and flow of water. She contends that the deduction and
the implementation of the debt process
is unlawful and she is being
seriously prejudiced thereby.
6.6.
She contends that before such a deduction is made she is entitled to
a notice as a consumer informing her
of the intended debt collection
procedure and the intention to limit the value of the purchased
electricity. She views the restriction
on the supply as a
constructive discontinuance of the supply of electricity to the
property. She contends that because the mechanism
of debt collection
is a debt collection procedure, the respondents are bound to issue a
notice in terms of section 102(2) of the
System Act. No such notice
had been issued to her. She is not responsible for the payment of
arrear charges and there is no basis
upon which there should be
deductions from the prepaid electricity for any arrear amounts which
are not owed by her.
6.7.
She conceded that the first respondent is entitled to discontinue
services to households in terms of section
21 of the bylaws without
notice in the instances mentioned therein. I do not deem it necessary
to list those, as the applicant
has done because they are not
relevant to the issues at hand. She further relied on the
Credit
Control Bylaw, with specific reference to clause 8(6)(a)(i),
thereof, where the municipality is empowered to disconnect
electricity supply to a property of the account holder if that
account
is not paid by the due date as indicated on the account and
in terms of the fourteen-day pre-termination notice referred to in
section 8(4) thereof.
6.8
She submitted that there are no exceptional circumstances which
warrant the deduction of monies from
her by the municipality without
notice. She needed the full supply of electricity that she purchased
because her gates, alarms,
refrigerator which is stocked with food,
are all operated by electricity.
[7]
On the issue of urgency she contends that
should she not get an interdict against the respondents or
get the
portion of the refund, she would be without electricity and her
family would be deprived of all benefits that go with having
electricity to the premises. Her attorneys caused a letter on 28
April 2023 to be sent to the city manager advising him of the
unlawful partial blocking of service and calling upon the
municipality to refund her for all the amounts unlawfully deducted
from
her. Her attorneys further called for an undertaking from the
municipality,
inter alia
, that it must confirm in writing that
partial restriction on the electricity purchase will be lifted or
suspended; that the respondents
will not restrict or limit the
electricity supply in future; that the respondents will not charge
any fees and the respondents
would tender the wasted costs incurred
for appointing the attorneys.
[8]
She attached a receipt from “ Chippys” which reflects :
“
Credit token
7Kwh@ 2,5099 R/ Kwh:
Amount :
R17.39
Tax
: R2.61
Total
: R20.00
Partial Block
Amount Incl : R80
.00
Grand Total : R 100.00
Total Units. : 7.00 kwh
…
.”
[9]
She submitted that the balance of convenience favours her because the
actions of the municipality are
unlawful. The system that the
municipality uses does allow for flagging of accounts and indicate
that she is a tenant and not an
account holder, in which event, no
partial blocking or restriction would be applied.
[10]
She would suffer irreparable harm if she gives the municipality 72
hours’ notice. She has a clear right
in terms of the bylaws to
be afforded fourteen days written notification before the
municipality unlawfully implements debt collection
procedures,
alternatively, she has a right in terms of a fair procedure. Her
right to occupy and utilize premises has been prejudicially
limited.
She contends that she has no other adequate remedy.
Relevant
facts in the Maqhashu matter
[11]
Mr Maqhashu alleged that:
11.1. He resides at
house number: 2[…], NU[…] Mdantsane, East London. He
has no contractual relationship with
the respondents. The owner of
the property where he resides was one Ms Nopilisi Maqhashu who passed
away on 20 October 2020. He
has limited income and he relies on the
assistance of family and friends. In terms of a verbal agreement with
his family, it was
agreed that he would occupy and rent the premises
from the estate until such time as the estate has been properly wound
up. His
attorneys of record have been instructed to attend to the
finalization of the estate.
11.2 The
estate of the deceased is responsible for the amounts being owed to
the respondents. His attorneys will also
attempt to obtain clarity
regarding any amounts that are purportedly being owed to the
respondents. He is responsible for monthly
rentals to the estate,
upkeep of the premises in terms of the verbal lease agreement and for
buying electricity from the respondents
or its agents.
11.3.
His complaint is exactly the same as that of Ms Ntantiso, that since
3 March 2023 he attempted to purchase
electricity from the agents of
the respondents only to be subjected to the 80/20 policy where 80%
was deducted towards a debt amount.
He only received 20% of the value
of electricity.
11.4. The
facts and legal contentions raised by Mr Maqhashu are exactly the
same as those raised by Ms Ntantiso. He
alleged that he has no
alternative remedy but to come to this court. He complained that he
was not given the notice for the 80/20
policy or written notice that
the deduction would be implemented from the purchase of electricity.
He is of the view that respondents
should use the flagging system and
in that way there would be no partial blocking or restriction to the
electricity purchases.
He attached a printout reflecting the
following:
“
Successful
You’ve bought
R70.00 electricity (24.3 kwh) for Masbu Maqhashu. R280.00 outstanding
debt was deducted.
Purchase Token: number
omitted.”
Done”
11.5 It is
not apparent from the founding affidavit who actually purchased the
electricity and whether it was purchased
from the respondent or an
agent such as the bank. This applicant sought relief as
contained in the notice of motion.
Respondent’s
case
[12]
As aforementioned both the first and second
respondents opposed the applications. Similarly, the response
to
these identical applications is the same and I shall deal therewith
in respect of both. The municipal manager, Mr Mxolisi Yawa
deposed to
the answering affidavits.
12.1. He
stated that the municipality does not have a contractual relationship
with the applicants. He is not aware
of the oral leases between the
applicants and the property owners. He contends that the matters are
not urgent and the applicants
failed to make out a case for the
interim relief sought.
12.2 He
submitted that the applicants have failed to prove that they will not
be afforded substantial redress in due
course. On 1 March 2023 the
municipality formerly implemented the 80/20 policy. Prior to
implementation, a notice was circulated
to all consumers. The
applicants knew that there was a partial block in respect of their
electricity supply on 3 March 2023. He
contends that the debt
collection procedure is rational because the applicants are allowed
to use a portion of their money to purchase
electricity even though
the owners have not satisfied the debt owed to the municipality. The
applicants are entitled to recover
their money from the deceased
estates.
12.3 He
further contends that the applicants do not dispute that the accounts
of the owners are in arrears. They
do not contend that the
owners have a defence to the monies owed to the municipality. Because
there is money owed to the municipality,
the municipality has a right
to recover it. The municipality disputed that by recovering the debt
it was acting unlawfully.
12.4 The
partial block is provided for in clause 8(6)(b)(vi) of the Credit
Control Policy. He contends that the municipality’s
chief
financial officer approved the partial blocking and the
implementation of the 80/20 policy with the previous municipal
manager.
The municipality’s council approved and adopted the
credit control policy in accordance with the Constitution and the
Systems
Act. He stated that the council approved the policy on
31
May 2022. In this regard he attached copiesof the council minute
evincing such resolutions. The
Credit Control Policy was
created in accordance with sections 96 and 97 of the Systems Act read
with sections 152 and 156 of the
Constitution.
[13]
Mr Yawa stated that the municipality is enjoined to collect all
monies due to it from its consumers in terms
of section 96 of the
Systems Act. In this regard, he submitted that the actions of the
municipality are lawful.
[14]
He stated that the municipality informed its customers about the
80/20 policy in the following manner: By
sending a public notice to
consumers together with the monthly statement in September 2022. It
published the notice on its website.
It placed an article in the
Daily Dispatch informing its consumers about the 80/20 policy. The
local newspapers published the implementation
of the policy. It
also by placed notices at or near public places. He attached
the notice which reads:
“
22 February
2023
Dear Valued Customer
RE: PUBLIC NOTICE TO
ALL BCMM CUSTOMERS
The above subject
refers.
The Buffalo City
Metropolitan Municipality adopted a Credit Control Policy in terms of
section 96 (b) of the Local Government :
Municipal Systems Act, No.
32 of 2000. In terms of the policy the Municipality is permitted to
implement a partial restriction
of the purchase of electricity where
80 % of the amount tendered will be allocated to the arrear account
of the customer. This
does not apply if the account is paid in full
on or before the due date as stipulated on the monthly municipal
statement, and also
does not apply to registered indigent customers.
The Municipality
hereby wishes to inform all its customers that as from the 1
st
March 2023 the partial restriction on the purchase of electricity
will be implemented to all the accounts that are in arrears over
30
days.
Below is the extract
of the Credit Control Policy:
( a)
The municipality will allow a partial block purchase of electricity
of 80/20 based on economic conditions
prevailing at the time for the
following reasons ( a& b, below) . The approval for the
implementation of the partial block
can be done by the Chief
Financial Officer ( CFO ) in consultation with the Accounting
Officer:-
(i)
When a Customer moved into a property and failed to apply for
services from the Municipality and failed to pay the required
security
deposit.
(ii)
When the disconnection of electricity , blocked from the
purchase of electricity and the restriction of water flow to the
property
did not have the desired effect to persuade the Customer to
pay the arrear debt.
To avoid any
restriction on the purchase of electricity, customers who are in
arrears are urged to settle the outstanding amount.
Yours faithfully
M. YAWA
CITY MANAGER”
[15]
Just above the date there are telephone numbers and persons who may
be contacted. Those details are
furnished in English, IsiXhosa
and Afrikaans. The notice was published in the English language
only.
[16]
He stated that the municipality did not disconnect the applicants
electricity supply instead it implemented
a partial block. This
partial block enables a consumer to purchase electricity from the
municipality or its agents. The municipality
contends that a notice
required in section 21 of the electricity bylaw is not required since
there is no disconnection of electricity
supply.
[17]
He stated that there is no dispute between the
municipality and its customers and any reliance on the
provisions of
section 102(2) of the Systems Act is misplaced. The municipality
further stated that it has a constitutional obligation to
collect monies due to it from its customers. Granting of an interim
interdict
would interfere with that constitutional mandate and the
separation of powers harm principle.
[18]
He submitted that the applicants do have an alternative remedy which
is an action for unjustified enrichment
against the owners of the
properties. He stated that the applicants failed to explain why they
have not pursued that remedy which
remains available to them. The
municipality prayed for the dismissal of the applications with costs
as the applicants have failed
to make a case for the relief sought.
[19]
In reply, the applicants contend that the admission by the
municipality that it does not have a contract
with them, makes the
deduction from their purchase unlawful. They relied in this regard on
an order which was made by Hartle J
to the effect that the rights of
a tenant must be recognized. They further contend that the bylaw has
not been repealed. The Credit
Control policy, they contend, has not
been properly adopted by council and has not been published in the
government gazette. On
this basis, they submitted that the
respondents have not complied with the provisions of the Systems Act
because a proper notice
has not been afforded to occupiers and the
account holders. Their rights as tenants should be recognized
and their accounts
should be flagged as such.
Applicant’s
legal submissions
[20]
Mr Du Plessis appeared for the applicants and Mr Mafu appeared for
the respondents. The applicants in their
heads of argument simply
repeated the facts stated in the founding affidavit and the
conclusion of law made therein. Of importance
is the summary that the
applicants made towards the end of the heads of argument where they
stated that: the applicants are
tenants to the properties, the
applicants have no legal relationship with the respondents, the
applicants are not indebted to the
respondents, the credit control
policy is unenforceable and not applicable as it has not been adopted
nor promulgated or published.
The respondents failed to provide
notice of the debt collection procedure and a notice in terms of
section 21 of the Electricity
Supply Bylaw. He further submitted that
the municipality is not an organ of state and therefore the
provisions of section 35 of
the General Law Amendment Act 62 of 1955
do not apply herein. He submitted that if this court finds that
those provisions
apply there are exceptional circumstances warranting
non- compliance with section 35 of Act 62 of 1955.
[21]
In view of those submissions, Mr Du Plessis submitted that a final
order should be granted as prayed for
in the notice of motion. There
were no legal authorities relied upon by the applicants for the
relief sought.
Respondents
legal submissions
[22]
Mr Mafu, relied on
Mkhontwana
v Nelson Mandela Metropolitan Municipality
[1]
for
the submission that:
“
T
here
can be no doubt that municipalities bear an important constitutional
obligation and a statutory responsibility to take appropriate
steps
to ensure the efficient recovery of debt”.
[23]
Mr
Mafu submitted that the issue central to these proceedings are the
applicants’ rights to receive basic municipal services
such as
electricity versus the municipality’s obligation to fulfill its
statutory obligations such as providing basic services
to all of its
customers and inhabitants. He submitted that granting of an interdict
will temporarily restrain the first respondent
from fulfilling its
constitutional and statutory responsibility to collect rates and
taxes from its customers through the 80/20
policy.
[24]
He submitted that on 31 May 2022 the council took a resolution and
adopted a revised credit policy and that
council resolution is
binding until it is set aside by a court of law. In this regard
he relied on
Manana
v King Sabata Dalindyebo Municipality
[2]
.
[25]
He submitted that a council acts through its resolutions. Once a
resolution is adopted its officials are
bound to execute it,
irrespective of their views. He submitted that the decision of the
municipality to implement the 80/20 policy
has not been taken on
review and for that reason it remains binding. He submitted that the
decision to restrict the applicant’s
electricity supply was in
accordance with the 80/20 policy and sections 96 and 97 of the
Systems Act.
[26]
Relying on
Mkontwana,
supra,
he submitted that municipalities are obliged to provide water and
electricity to the residents in their areas as a matter of public
duty
[3]
.
[27]
He submitted that the applicants have failed to
make out a case for the relief sought. He asked for the
dismissal of
both applications with costs.
Discussion
Urgency
[28]
Rule 6(12) of the Uniform Rules of Court requires an applicant who
moves court on an urgent basis to state
facts which render the matter
so urgent that he or she will not be able to obtain redress in due
course. That means that the applicant
must explain all the steps he
or she took from the time he or she apprehended harm or the alleged
infringement of right until he
brought the matter to court. The slip
evincing the purchases is dated 17 March 2023, in the case of Mr
Maqhashu and in Ms Ntantiso’s
case the purchase was on 15 March
2023. In both cases the applications were brought on 11 May 2023. A
period of at least 40 court
days had lapsed between the date of
purchase of electricity and the date they brought the applications.
There is no explanation
for that period at all.
[29]
In the founding affidavits both applicants contended that they will
bring the applications on 6 June 2023
at 9h30 where they will seek a
rule nisi
returnable on 4 July 2023. The period between 11 May
2023 when the applications were delivered and 6 June 2023 is (17)
seventeen
court days. In terms of Rule 6 the respondents are entitled
to (5) five days after service of the application to file their
notice
to oppose. After filing the notice to oppose the rule
affords respondents (15) fifteen days for delivery of their answering
affidavits.
[30]
In respect of both matters, the respondents were served with the
applications on 11 May 2023 . They were
directed to deliver their
notice to oppose by 09h30 on 1 June 2023. They were also directed to
deliver their answering affidavits
on the same day, 1 June 2023.
The applicants afforded themselves four (4) days within which to
reply, by no later than
05 June 2023.
[31]
There are no reasons advanced why the days that
the respondents were entitled to ,as provided in rule 6
[4]
were not afforded to them instead a bald statement was made by
the applicants that they would suffer irreparable harm if
they
afforded them even 72 hours. They also demand refunds on an urgent
basis. In the case of Ms Ntantiso , the refund is R80.00
. In the
case of Mr Maqhashu it is R280, according to the annexures they
attached. Both these applicants have not alleged that
they are
indigent. There are no reasons given to show why these small
amounts must be demanded on an urgent basis from the
High Court.
[32]
The matter was set down for hearing on 15 June 2023 on the opposed
roll. There are no facts whatsoever, advanced
by both applicants, why
the relief they sought could not be moved on the normal schedule
provided in Rule 6 of the Uniform Rules
of Court in respect of
applications.
Is
there a case made out for interdicting implementation of the credit
control policy?
[33]
The Constitution of the Republic of South Africa provides:
“
Objects of
local government
152. (1) The objects
of local government are—
(b)
to ensure the provision of services to communities in a sustainable
manner.”
“
Developmental
duties of municipalities
153. 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.”
“
Basic values
and principles governing public administration
195. (1)
Public administration must be governed by
the democratic values and principles enshrined
in the Constitution,
including the following principles:
(a)
A high standard of professional ethics must be promoted and
maintained.
(b)
Efficient, economic and effective use of resources must be promoted.
(c)
Public administration must be development-oriented.
(d)
Services must be provided impartially, fairly, equitably and without
bias.
(e)
People’s needs must be responded to, and the public must be
encouraged to participate in
policy-making.
(f)
Public administration must be accountable.
(g)
Transparency must be fostered by providing the public with timely,
accessible and accurate information.
(h)
Good human-resource management and career-development practices, to
maximise human potential,
must be cultivated.
(i)
Public administration must be broadly representative of the South
African people, with employment
and personnel management practices
based on ability, objectivity, fairness, and the need to redress the
imbalances of the past
to achieve broad representation.”
[34]
Section 239 of the Constitution defines “organ of state’
as:
(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,”
[35]
In Chapter 2 of the Systems Act a municipality is defined as:
“
CHAPTER
2
LEGAL NATURE AND
RIGHTS AND DUTIES OF MUNICIPALITIES
2. Legal nature
A
municipality—
(a)
is an organ of state within the local sphere of government exercising
legislative and executive authority
within an area determined in
terms of the Local Government: Municipal Demarcation Act, 1998;
(b)
consists of—
(i)
the political structures and administration of the municipality; and
(ii)
the community of the municipality;
(c)
functions in its area in accordance with the political, statutory and
other relationships between its
political structures, political
office bearers and administration and its community; and
(d)
has a separate legal personality which
excludes liability on the part of its community for the actions
of
the municipality.”
[36]
Chapter 8 provides for municipal services:
“
CHAPTER
8
MUNICIPAL SERVICES
General duty
73.
(1) A municipality must give effect to the
provisions of the Constitution
and—
(a)
give priority to the basic needs of the local community;
(b)
promote the development of the local community; and
(c)
ensure that all members of the local community have access to at
least the minimum level of basic municipal
services.
(2)
Municipal services must-
(a)
be equitable and accessible:
(b)
be provided in a manner that is conducive to-
(i)
the prudent, economic, efficient and effective use of available
resources; and
(ii)
the improvement of standards of quality over time;
(c)
be financially sustainable;
(d)
be environmentally sustainable; and
(e)
be regularly reviewed with a view to upgrading, extension and
improvement.”
[37]
Section 96 of the Systems Act provides:
‘
Debt collection
responsibility of municipalities
96.
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.”
[38]
The above-mentioned legal instruments bestow upon the municipality
the power to regulate and manage its own
affairs. In
Kungwini
Local Municipality v Silver Lakes Homeowner Association and
Another
[5]
,
the Supreme Court of Appeal held that the adoption of rates policy
and levying, recovering and increasing of property rates is
a
legislative rather than an administrative act. The effect being
that a municipality’s action in this regard can only
be
challenged on the principle of legality, an incidence of the rule of
law
[6]
. These principles
apply equally herein.
[39]
This means that where a policy has been adopted and approved by the
municipal council, the municipality is
obliged to ensure that it is
implemented. The validity of the credit control policy is not
under attack in these proceedings.
The issue relates to
implementation of that policy. The applicants contend that the
only thing that was approved by the council
is the credit control
bylaw and not the credit control policy. The respondents
attached proof of the resolution by the municipal
council approving
the credit control policy. It follows that on this issue and
especially on the insistence of the applicants
that a final order
must be given, this court must find in favour of the municipality on
the Plascon Evans rule
[7]
.
[40]
In
United
Democratic Movement & Another v Lebashe Investment Group (Pty)
Ltd & Others
[8]
Madondo AJ, in a unanimous decision stated the following at
paragraphs 47 and 48 entitled justification for the granting of
interim
interdictory relief:
“
[47] An
interdict is an order made by a court prohibiting or compelling the
doing of a
particular act for the purpose of protecting a legally
enforceable right, which is threatened by continuing or anticipated
harm.
As indicated above, an interdict may be temporary or final.
Temporary interdicts are referred to as interim or interlocutory
interdicts
or interdicts pendente lite. An interim
interdict pending an action is an extraordinary remedy within the
discretion
of the court. For an order to be said to be interim, it
must be susceptible to alteration and capable of being reconsidered
at
the pending trial on the same facts by the court of first
instance.
. . . .
The
requisites for the right to claim an interim interdict are: (a) a
prima facie right even if it is open to some doubt; (b)
injury
actually committed or reasonably apprehended; (c) the balance of
convenience; and (d) the absence of similar protection
by any other
remedy.
[48] In
granting an interdict, the court must exercise its discretion
judicially upon a
consideration of all the facts and circumstances.
An interdict is “not a remedy for the past invasion of rights:
it is concerned
with the present and future”. The past
invasion should be addressed by an action for damages. An interdict
is appropriate
only when future injury is feared.”
(footnotes
omitted).
Have
the applicants established prima facie rights?
[41]
Both applicants contend that they are tenants and therefore they have
a right to be notified about the implementation
of the 80/20 policy
and also they demand that the accounts should be flagged indicating
that they are in fact tenants and therefore
not liable for payment of
arrears.
[42]
There are two fundamental difficulties with this argument. First,
other than the applicants’ ‘say
so’ there is no
document that shows or proves that the owners of the properties in
question are deceased. Nothing proves
that the applicants are in fact
tenants. They have not even stated how much rental they pay or
even attach proof of rental
payments. On their version, they have
instructed their lawyers to deal with the respective estates in
respect of the properties
that they each occupy and to finalize those
deceased estates.
[43]
One wonders what business would tenants have in the winding up of the
deceased estate , where the relationship
between them and the
deceased owners has not been revealed. What is also apparent in both
cases is that both these applicants are
related to the deceased
persons. They share the same surnames with the deceased persons
although they do not indicate the type
of relationship they had with
them. They do associate themselves with the families of the deceased
persons. They allege that
the families have in each case
decided that they should look after the properties. In the
letter addressed to the municipality
by the applicants attorneys of
record, it is stated in relevant parts:
“
1.
We refer to the abovementioned matter and confirm that we act on
behalf of Bulelwa Ntantiso, who
is the occupant of the property
mentioned above. Our client has been living in the house previously
being owned by her family.
We are in the process of advising our
client as to how to transfer the property and finalise any
outstanding issues in regards
to the deceased estate…” .
This paragraph is an
extract from a letter written on behalf of Ms Ntantiso.
Strangely, the exact same contents are contained
in the first
paragraph of a letter sent to the municipality on behalf of Mr
Maqhashu. These paragraphs do not state that
the applicants are
tenants as they have alleged before this court.
[44]
On this basis alone the standing of the applicants as tenants is not
only questionable but it is not properly
defined to enable this court
to decide whether they do have a right or not to the relief that they
are seeking.
[45]
The second difficulty is that although they contend that they are not
liable for payment of arrears because
they do not own these
properties, they demand that they should be notified about the
implementation of the 80/20 policy. What they
are asking for is that
in respect of each and every household the municipality bears an
obligation of establishing whether a person
who purchases electricity
is a tenant or an owner of the property. To expect a municipality to
do so would be onerous. It
would also be an impossible task
because it would require physical determination of each and every
occupant’s status in each
and every household.
[46]
Both applicants have not put up any documents that indicate that the
properties in question are indeed owned
by the deceased persons as
they allege. Third, they do not allege that when they took up
occupation of the properties based on
the oral leases, they notified
the municipality of the death of the owners of the properties and of
their occupation. Even
after they noticed the deduction in
March 2023 they did not bother to visit the municipal offices so that
they can be registered
and recognized as tenants, as they allege.
Instead, they rushed to court to seek an interdict.
[47]
Clause 11 (4) and (5) of the Credit Control Policy
provides:
“
1. Application
for the provisions of municipal services
(1) …
(2) ….
(3)…
(4)
The Municipality will not entertain an application for the provision
of municipal services from
a tenant of a property, or any other
person who is not the owner of the property.
(5)
The only exception to point (4) above is that individuals and
businesses with lease agreements who
lease properties from the
Municipality will be allowed to open an account in the name of the
lessee of the property. Registered
indigent tenants will be
allowed in terms of the Deceased Estate and Absconded Owner Schemes
to open accounts in their name in
order to benefit from the rebates
offered by the Municipality. A tenant account may be opened in the
name of the Government department/s
who lease properties to their
tenants.”
[48]
There is no evidence that these properties and their existence were
reported to the Master of the High Court.
In this regard the
Administration of Estates Act 66 of 1965
makes clear provision for
temporal custody of property in deceased estates in
section 11
as
follows:
“
11 Temporary
custody of property in deceased estates
(1)
Any person who at or immediately after the death of any person has
the possession or custody of any
property, book or document, which
belonged to or was in the possession or custody of such deceased
person at the time of his death-
(a)
shall, immediately after the death, report the particulars of such
property, book or document to the
Master and may open any such
document which is closed for the purpose of ascertaining whether it
is or purports to be a will;
(b)
. . . .”
[49]
The applicants have not approached the municipality to enquire about
options available to them as “lessees”.
There is
accordingly an alternative remedy available to them, namely, to
approach the municipality, for it to assess their situation
and
categorize them according to its processes. The attorneys’
letters are couched as a request for information as
various
information and documents are required. The fact that the applicants
demand that they should be paid, that is an indication
that what is
available to them is an action for damages but not an interdict.
[50]
Of concern to this court is that in both these
cases the facts are the same. The allegations made are the same. The
only thing that
is different are the house numbers and meter numbers.
This court gets an impression that the allegations in one matter are
copied
into another. This is not what is expected of practitioners
handling litigation on behalf of their clients. There is dearth of
necessary information to justify the relief sought.
[51]
In
OUTA
the Constitutional Court stated:
“
It seems to me
that that it is unnecessary to fashion a new test for the grant of an
interim interdict. The Setlogelo test, as adapted
by case law,
continues to be a handy and ready guide to the bench and
practitioners alike in the grant of interdicts in bust Magistrates’
Courts and High Courts. However, now the test must be applied
cognisant of the normative scheme and democratic principles that
underpin our Constitution. This means that when a court considers
whether to grant an interim interdict it must do so in a way
that
promotes the objects, spirit and purport of the Constitution
[9]
.
[52]
In
Economic Freedom Fighters v Gordhan & Others
at
paragraph 37 the Constitutional Court stated:
“
[37]
This court in OUTA established that when granting an interim
interdict against a State entity – and: in effect,
restraining
the use of public power – courts should adroitly “consider
the probable impact of the restraining order
on the constitutional
and statutory powers and duties of the State functionary and/or organ
of State against which the interim
order is sought
[10]
”.
[53]
At paragraph 48 of the Economic Freedom Fighters case the
Constitutional Court stated the following:
“
[48] We
were cautioned by this Court in OUTA that, where Legislative or
Executive power will be transgressed and thwarted
by an interim
interdict, an interim interdict should only be granted in the
clearest of cases and after careful consideration of
the possible
harm to the separation of powers principle. Essentially, a
court must carefully scrutinise whether granting
an interdict will
disrupt Executive or Legislative functions, thus implicating the
separation and distribution of power as envisaged
by law. In
that instance, an interim interdict would only be granted in
exceptional cases in which a strong case for that
relief has been
made out.”
[11]
(footnotes omitted).
[54]
For all the reasons advanced above, the applicants have failed to
establish a right to bring these proceedings.
In conclusion, both
applications have been ill conceived. Both applicants have failed to
meet the requirements for an interdict
either interim or final. On
the facts before this court, both applicants failed to prove that the
implementation of the policy
is unlawful.
Costs
[55]
This is a matter where there had been no basis at all established for
these applications to be enrolled outside
the time schedules provided
for in Rule 6. This court had to deal with matter on an urgent basis
without the applicants making
the effort to show that the matters are
indeed qualified to jump the queue and be heard urgently. Secondly
the applicants failed
dismally to show that by applying the 80/20
policy the municipality acted unlawfully. It is for that reason
therefore that there
is no basis upon which this court would depart
from the normal rule that the successful party should be awarded its
costs.
[56]
In the circumstances, both applicants in both matters have failed to
make out a case for the relief sought
and the applications must
accordingly fail.
[57]
I accordingly make the following order:
1.
In the matter of BULELWA NTANTISO v BUFFALO CITY METROPOLITAN
MUNICIPALITY & ANOTHER:
CASE NO. 869/2023 the application is
dismissed with costs.
2.
In the case of MASIBULELE MAQHASHU v BUFFALO CITY METROPOLITAN
MUNICIPALITY & ANOTHER:
CASE NO.895/2023 the application is
dismissed with costs.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Matter
heard on:
14 June 2023
Judgment
delivered on : 1 August 2023
APPEARANCES
For
the APPLICANTS:
MR
Du PLESSIS
Instructed
by:
NJ
DU PLESSIS & ASSOCIATES INCORPORATED
18
AJAX CRESCENT
CAMBRIDGE
EAST
LONDON
TEL:
043 740 0424
FAX:
086 558 0479
EMAIL:
nico@tdplaw.co.za
REF:
N. Du Plessis/UP0012
For
the RESPONDENTS:
ADV
MAFU
Instructed
by:
DYUSHU
& MAJEBE INC.
20
SMARTT ROAD
NAHOON,
EAST LONDON
TEL:
043 726 4616 / 043 726 6599
EMAIL:
Admin@dmlaw.co.za
REF:
MKD/LIT 604
[1]
(CCT57/03)
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) at para 124.
[2]
[2011] 3 BLLR 215
(SCA); 2011 32 ILJ 581 (SCA);
2011 (3) ALLSA 140
SCA;
[2010] ZASCA 144
; 345/09 at para 22.
[3]
See Mkotwana at para 38.
[4]
Rule
6 (5)(b)(iii) and (d)(ii) of the Uniform Rules of Court
[5]
Kungwini Local Municipality v Silver Lakes Home Owners Association [
2008] ZASCA 83
;
[2008] 4 All SA 314
(SCA);
2008 (6) SA 187
(SCA)
para 18.
[6]
City of Johannesburg Metropolitan Municipality v Zibi and Another
(234/2020)
[2021] ZASCA 97
(09 July 2021) para 19.
[7]
Plascon
– Evans Paints Ltd v Van Riebeeck Paints Ltd 1984 (3) SA 623
(A).
[8]
[2022] ZACC 34.
[9]
National Treasury v Opposition to Urban Tolling Reliance
[2012] ZACC
18
;
2012 (6) SA 223
(CC);
2012 BCLR 1148
CC (OUTA) at para 45.
[10]
OUTA para 46; Economic Freedom Fighters v Gordhan & Others;
Public Protector & Another v Gordan & Others [2020] ZACC
10.
[11]
OUTA para 44.