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[2022] ZAFSHC 151
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Harrismith Intabazwe Tsiame Residents Association (Pty) Ltd and Others v Maluti-A-Phofung Local Municipality and Another (567/2022) [2022] ZAFSHC 151 (14 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No:
567/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between
:
HARRISMITH
INTABAZWE TSIAME RESIDENTS
1
st
Applicant
ASSOCIATION
(PTY) LTD (“HIT”)
(Reg
no: 2019/301720/08)
WILHELM
KÖNIG
2
nd
Applicant
SHILOH
RETAILERS (PTY) LTD t/a HARRISMITH SPAR
3
rd
Applicant
ARVARO
FILL UP CC t/a ENGEN
4
th
Applicant
and
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
1
st
Respondent
FUTHULI
P MOTHAMAHA,
MUNICIPAL MANAGER
2
nd
Respondent
In
the matter between
:
Case
No:
824/2022
HARRISMITH
INTABAZWE TSIAME RESIDENTS
ASSOCIATION
(PTY) LTD
1
st
Applicant
(Reg
no: 2019/301720/08)
WILHELM
KÖNIG
2
nd
Applicant
MONOTSA
TRUST (IT366/2000)
3
rd
Applicant
MR
EMILE DE BEER N.O.
4
th
Applicant
and
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
1
st
Respondent
FUTHULI
P MOTHAMAHA, MUNICIPAL MANAGER
2
nd
Respondent
CORAM
:
JP
DAFFUE J
HEARD
ON
:
21
APRIL 2022
DELIVERED
ON
:
14
JUNE 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be 12:00 on 14 June
2022.
I
INTRODUCTION
[1]
The electricity supply to various businesses in Harrismith has been
terminated, in
the one case on 8 February 2022 and in the other case
on 23 February 2022.
[2]
On 11 February 2022 and following upon an urgent application filed
under application
567/2022 a rule
nisi
was
issued with return date 3 March 2022. The respondents were
inter
alia
ordered to immediately restore the electricity supply to the relevant
premises.
[1]
On 25
February 2022 another urgent application was set down for hearing. On
that day a rule
nisi
was issued in application 824/2022 with return date 7 April 2022.
Similar orders were granted as in application 567/2022,
save that
costs stood over for later adjudication.
[2]
In the first application a costs order on an attorney and client
scale was made against the respondents jointly and severally.
[3]
Both rules
nisi
were extended and the applications eventually
postponed to the opposed motion court roll of 21 April 2022 when they
were allocated
to me for adjudication. Heads of argument
were filed on behalf of the applicants in both applications, but I
only received
the respondents’ heads of argument in respect of
application 824/2022. I agreed with the parties that I would
prepare
one judgment only as the real and substantial issues in both
applications are the same. After hearing the parties’
oral submissions, I reserved judgment and extended the rules
nisi
pending finalisation of the judgment.
II
THE PARTIES
[4]
The first and second applicants in both applications are the same, to
wit Harrismith
Intabazwe Tsiame Residents Association (Pty) Ltd
(“HIT”) and Mr Wilhelm König, a major male
businessman.
Mr König deposed to the affidavits in his
capacity as director and chairperson of the first applicant.
[5]
The third and fourth applicants in application 567/2022 are Shiloh
Retailers (Pty)
Ltd t/a Harrismith Spar (“Spar”) and
Arvaro Fill Up CC t/a Engen (“Engen”), the two companies
having their
places of business within the jurisdiction of the first
respondent.
[6]
The third and the fourth applicants in application 824/2022 are the
Monotsa Trust
(“the Trust”) and Mr Emile De Beer in his
capacity as trustee of the Trust. The Trust is conducting
several businesses
within the jurisdiction of the first respondent,
to wit a filling station, Wimpy, Debonairs and a Spar Extra.
[7]
The applicants were represented by the same counsel, to wit Adv DH
Wijnbeek, instructed
by Andreas Peens Attorney c/o Rosendorff Reitz
Barry Attorneys Bloemfontein. I shall herein refer to the
various businesses
as “the customers” if I intent to
refer to them as a class of entities.
[8]
The first respondent in both applications is the Maluti-A-Phofung
Local Municipality.
Its municipal manager, Mr Futhuli P
Mothamaha was cited as second respondent in both applications.
Mr MC Radebe of MC Radebe
Attorneys in Bloemfontein appeared for the
respondents.
III
THE NATURE OF THE APPLICATION
[9]
The applicants brought their application within the purview of
spoliation. As
mentioned, they approached the court on an
urgent basis on 11 and 25 February 2022 respectively. Both presiding
officers dealing
with the separate applications regarded the
applications as urgent and issued rules
nisi
as mentioned
above. The respondents were called upon to show cause why the
following orders should not be made final, quoting
verbatim
from the order granted in application 824/2022:
“
2.1
The First, alternatively the First and Second Respondents, further
alternatively the Respondents jointly and severally
is ordered to:
a.
Restore the supply of electricity to the respective premises of the
First Applicant
members, inclusive of the Third and Fourth
Applicants,
b.
Which supply was terminated by the 1
st
Respondent’s
employees and/or contractors; and or termination caused on
instruction of the First and/or Second Respondents
on, or since 23
rd
February 2022.
2.2 The
First and Second Respondents is directed to ensure that all relevant
officials, employees, and contractors
of the First Respondent is duly
instructed and have taken the necessary actions to give effect to
this order.
3.
The costs is reserved for argument on the return date.
4.
Pending the return day, paragraphs 2.1 and 2.2 shall serve as an
interim interdict with immediate
effect.”
The
order in application 567/2022 differs from the quoted order in that
the date in paragraph 2.1.b is 8 February 2022 and a costs
order was
made contrary to what was ordered in paragraph 3 above.
[10]
The applicants submitted that
they had established the requisites to
obtain urgent relief in accordance with the
mandament van spolie
insofar as they were in peaceful and undisturbed possession of the
supply of electricity at their business premises, that the
respondents unlawfully terminated such supply on 8 and 23 February
2022 respectively without following a fair administrative process
before interrupting the supply in circumstances where they as
consumers were not in breach of their payment obligations towards
the
first respondent and consequently, as a result of the respondents’
unlawful action and resort to self-help, they were
entitled to
initial relief and are also entitled to final relief.
IV
THE FACTUAL MATRIX
[11]
The following facts which are common cause, unless mentioned and
addressed, are relevant to the
adjudication of the applications:
11.1
The first applicant is commonly known as HIT. It is a duly
registered non-profit organisation.
Shiloh Retailers (Pty) Ltd trades
as Spar Harrismith from 42 Hamilton Street, Harrismith. It is
also known as Spar Supermarket.
It is a departmental store in
the food and beverage sector, serving a large clientele of all creeds
in town as well as customers
passing by on the N3 on route to either
Johannesburg or Durban.
11.2
Arvaro Fill Up CC operates as an Engen filling station as well as a
convenience store. It is
situated at Route N5 Mckechnie Street
from where it services clientele on route from Harrismith to Qwaqwa
and the Eastern Free
State. Many of the clientele commuting
between Harrismith and Qwaqwa are low income citizens that depend on
the type of products
and pricing of such products at the convenient
store on the premises also known as Harrismith Convenience Centre.
11.3
The Monotsa Trust conducts various businesses such as a filling
station, Wimpy, Debonairs and Spar
Express. The Municipality’s
tax invoices describe the Trust as Sedibeng Service Station, Edidor
176 (Wimpy) and Sedibeng
Liquor Store. These businesses are
serving not only local residents, but also customers passing by on
the N3 on route either
to Johannesburg or Durban. These
businesses serve a large clientele and offer fast food, restaurants,
a Shell filling station,
as well as rest rooms.
11.4
On 8 February 2022 the electricity supply to Harrismith Spar and
Engen was terminated and on 23 February
2022 the electricity supply
to the Shell garage, Wimpy, Debonairs and Spar Express was
terminated, where after orders were obtained
on 11 February and 25
February 2022 respectively to restore the electricity supply as
mentioned above.
11.5
The respondents did not notify any of these customers of their
intention to terminate the electrical
supply, save for the
contentious letter to be dealt with in the next sub-paragraph.
11.6
An undated termination notice, signed by the first respondent’s
Chief Financial Officer, was
circulated during 2020 to certain
members of HIT.
[3]
This
letter was not addressed to anybody in particular, not sent to a
particular address and no reference was made to the
name of the
customer, the account number, any amount in arrears and in respect of
which municipal services unspecified amounts
were claimed.
11.7
Mr Radebe correctly conceded that the termination notice relied upon
and attached to the applicants’
papers referred to earlier –
annexure “WK5” - was inadequate, bearing in mind the
judgment of the Constitutional
Court in
Joseph
v The City of Johannesburg.
[4]
11.8
Written and formal disputes were declared in terms of s 95(f) read
with s 102(2) of the Local Government:
Municipal Systems Act
(“the Systems Act”)
[5]
and also as fully set out in the letters of HIT’s attorney
dated 8 July 2020 and 29 September 2020.
[6]
11.9 The
first respondent abandoned its termination notice as no further steps
were taken to terminate the supply of
electricity or water to
customers, but nearly two years later and without sending termination
notices to the customers involved
in the present litigation, their
electricity supply was terminated in February 2022 as mentioned
above.
11.10 After the
electricity supply to consumers in application 567/2022 was
terminated, two letters were sent to the first respondent
dated 8 and
9 February 2022 respectively, but no courtesy of a reply was
shown.
[7]
The process was
repeated in respect of the customers involved in application
824/2022.
[8]
11.11 The
first respondent is in dire straits and Eskom in particular had taken
judgment against it for failure to settle
its bills. The
respondents conceded that this debt is in excess of 6 billion
Rands.
[9]
At a stage first
respondent’s bank accounts were even attached and frozen.
[10]
11.12
Ex
facie
the current accounts issued by the first respondent to the customers,
they were not in arrears in respect of their accounts when
the
electricity supply was terminated.
[11]
11.13 The first
respondent claims that the customers owe it hundreds of thousands of
rands in respect of historic debts pertaining
to consumption of
electricity –
ie
debts
allegedly incurred prior to the implementation of a Service Level
Agreement (“SLA”) between the first respondent
and Eskom
signed on 19 May 2020
[12]
-
for which amounts no formal accounts and/or invoices were provided
ex
facie
the application papers.
11.14 In the case
of Harrismith Spar the amount allegedly due, but not specified, is
R785 055.83 and in the case of Engen
the claim is for
R318 468.64.
[13]
The account details were apparently generated by an entity called
e-Venus, but the author and veracity of the account details
are
unknown. In the case of the Sedibeng filling station the
outstanding amount was R420 068.96.
[14]
In a supplementary affidavit by the respondents the amount due by the
third respondent in application 824/2022 was stated
to be
R555 531.79, to wit R89 469.36 in respect of Sedibeng
Liquor, R160 883.27 in respect of Wimpy and R305 179.16
in
respect of Sedibeng Service Station.
[15]
These e-Venus accounts are not only hopelessly confusing, but also
fail to comply with the definition of “account”
in the
first respondent’s policy to which I shall refer later herein.
11.15 Although it
is not denied by the respondents that the relevant consumers have
declared disputes pertaining to their
accounts,
[16]
they deny that the amounts mentioned in the e-Venus statements
presented on behalf of the respondents were placed in dispute.
More about this later when the evidence is evaluated.
11.16 The first
respondent’s policy dealt with in more detail hereunder defines
an account as: “an account rendered
specifying charges for
municipal service provided by the municipality, and which account may
include assessment rates levies.”
The credit control
measures are set out in clause 7.6 of the policy and the dispute
procedure is set out in clause 8. More
about this later.
Although the respondents admitted in the answering affidavit that the
termination notice was not dated,
they denied that it lacked
particularity.
[17]
As
mentioned, their attorney conceded the incorrectness of this
allegation in his written heads of argument as well as during
oral
argument.
11.17 Although the
respondents tried to make out a case that the third applicant in
application 824/2022 only raised a dispute
pertaining to a relatively
small water account, it is clear from the founding affidavit that
over and above that dispute, both
the third and the fourth applicants
in application 824/2022 as well as the consumers in application
567/2022 formed part of the
class of consumers mentioned in annexures
“WK4” and “WK5”.
[18]
11.18 None of the
official invoices issued by the first respondent to any of the
consumers indicate outstanding amounts, save
in respect of current
accounts, or put otherwise, nothing is in arrears in respect of the
30, 60, 90 and 90+ days periods.
The respondents alleged in
application 824/2022 that “there is no dispute concerning the
amounts owed by the applicants;
and” that the “disputes
that may have been lodged, refer to historic debts dating from the
year 2015;” whilst
the “debts referred to above herein
(in this application by the respondents,) are both for historic and
for everyday and
current consumption by the applicants – which
they refuse to pay”.
[19]
This is not only nonsensical, but clearly denied in paragraph 14 of
the replying affidavit.
[20]
It is pointed out that annexure “SSS1” relied upon by the
respondents in application 824/2022 incorporates the
Spar Supermarket
and Engen (the consumers in application 567/2022) and that
neither the third, nor the fourth applicant in
application 824/2022
is involved with these consumers. The consumers in both
applications are all in agreement that there
is confusion in the
administration of the first respondent and an inability to correct
its billing system.
11.19 It is reiterated on
behalf of the Monotsa Trust which is running a Spar Express, filling
station, Wimpy and Debonairs that
it had never received any account
of indebtedness in the amount of R420 068.96 prior to the
spoliation application.
It is also reiterated that its accounts
are wrong and formally disputed. All of a sudden, the amount of
R420 068.96
mentioned in the answering affidavit as the
outstanding amount on 23 February 2022 increased as on 4 April 2022
to R555 531.97.
Reliance was placed on a computer printout
from e-Venus which was not only nonsensical, but did not set out how
the outstanding
amount had been calculated. In response to this
supplementary affidavit the applicants averred that the SLA was
irrelevant
to the case. It was again emphasised that the
first respondent’s accounting systems were in a shambles and
that
none of the amounts now suddenly disclosed could be trusted and
would have to be debated if rendered per invoice to the relevant
consumers. Although, for example the Sedibeng liquor store had
been making payment directly to Eskom as it was obliged to
do in
accordance with invoices actually rendered for the past two years,
the first respondent continued to raise “interim
electricity
accounts” of about R13 000.00 per month.
V
LEGAL PRINCIPLES PERTAINING TO THE TERMINATION OF ELECTRICITY SUPPLY
AND THE
MANDAMENT VAN SPOLIE
[12]
The Constitutional Court summarised the applicable principles
pertaining to the mandament van
spolie in
Ngqukumba
v Minister of Safety and Security
as
follows
:
[21]
“
[10] The essence
of the mandament van spolie is the restoration before all else of
unlawfully deprived possession to the possessor.
It finds expression
in the maxim spoliatus ante omnia restituendus est (the despoiled
person must be restored to possession before
all else). The
spoliation order is meant to prevent the taking of possession
otherwise than in accordance with the law. Its underlying
philosophy
is that no one should resort to self-help to obtain or regain
possession. The main purpose of the mandament van spolie
is to
preserve public order by restraining persons from taking the law into
their own hands and by inducing them to follow due
process.
[11] ........
[12] A spoliation
order is available even against government entities for the simple
reason that unfortunately excesses by
those entities do occur. Those
excesses, like acts of self-help by individuals, may lead to breaches
of the peace: that is what
the spoliation order, which is deeply
rooted in the rule of law, seeks to avert. The likely consequences
aside, the rule of law
must be vindicated. The spoliation order
serves exactly that purpose.
[13] It matters
not that a government entity may be purporting to act under colour of
a law, statutory or otherwise. The
real issue is whether it is
properly acting within the law. After all, the principle of legality
requires of state organs always
to act in terms of the law.
..... All that the despoiled person need prove is that—
(a)
she was in possession of the object; and
(b)
she was deprived of possession unlawfully.”
[13]
The legal principles in respect of the mandament van spolie are
clear. Very few defences
can be raised. The applicant’s
possession must be restored first and foremost (if it would be legal
to do so) and thereafter
the dispute as to the legality of any right
relied upon could be considered.
[14]
When an applicant relies on the mandament van spolie, endeavouring to
prove the second requirement,
ie
an unlawful deprivation of possession of property without his consent
or without due legal process, the respondent contending that
dispossession was lawful bears the onus of establishing same.
[22]
[15]
Having mentioned the aforesaid authorities, the
judgment of the Supreme Court of Appeal in
Eskom
Holdings
SOC Ltd v Masinda
[23]
must be considered. The facts in
Masinda
are totally distinguishable from those
in
casu.
Ms
Masinda sought restoration of her electricity supply notwithstanding
the fact that she was unlawfully connected to the system
which
connection did not comply with safety requirements. Leach JA
mentioned the following:
“
[11]
The obvious difficulty standing in the way of relief being granted
was that the supply that was sought to be restored was said to
be
unlawful and constituted a danger to the public
. This
notwithstanding, the respondent's counsel argued that, as in
spoliation proceedings the legality or otherwise of an
applicant's possession is not an issue to be decided, the supply had
to be reconnected before any dispute as to its legality could
be
determined.
[12]
Although it is correct that spoliation requires restoration of
possession as a precursor to determining the existence
of the
parties' rights to the property dispossessed, there may well be
circumstances in which a court will decline to issue
a spoliation
order.”
Leach JA continued and
dealt with
Impala Water v Lourens
as follows:
“
[15]
Depending upon the circumstances, the supply of electricity or water
may be recognised as being an incorporeal
right, the possession of
which is capable of protection under the mandament. That this is so
is apparent from the decision
of this court in
Impala
Water v Lourens
in which the respondents sought and obtained
a spoliation order directing the appellant, a supplier of water, to
restore the
flow of water to reservoirs on their farms…..This
court, in dismissing an appeal against an order that the
appellant
restore the flow, held that such rights were an incident of
the possession of each farm, and that the mandament was therefore
available.”
After considering several
other judgments, the learned justice summarised the application of
the mandament van spolie as follows:
“
[22]
As was pointed out in
Zulu
, the occupier of immovable
property usually has the benefit of a host of services rendered
at the property. However,
the cases that I have dealt with above
graphically illustrate how, in the context of a disconnection of the
supply of such a service,
spoliation should be refused where the
right to receive it is purely personal in nature.
The mere
existence of such a supply is, in itself, insufficient to establish a
right constituting an incident of possession of the
property to
which it is delivered.
In order to justify a spoliation order the
right must be of such a nature that it vests in the person in
possession of the property
as an incident of their possession.
Rights bestowed by servitude, registration or statute are obvious
examples of this. On the other hand, rights that flow from a
contractual nexus between the parties are insufficient as they
are purely personal, and a spoliation order, in effect, would
amount
to an order of specific performance in proceedings in which a
respondent is precluded from disproving the merits of the
applicant's
claim for possession. Consequently, insofar as previous cases may be
construed as holding that such a supply is in
itself an incident of
the possession of property to which it is delivered, they must be
regarded as having been wrongly decided.”
(Emphasis
added)
[16]
It is also apposite to refer to
Makeshift
1190 (Pty) Ltd v Cilliers,
[24]
(“Makeshift”)
a judgment of the Western Cape full bench. Rodgers J (Cloete J
concurring) put the issue in perspective as follows:
“
[23]
After quoting this passage, Leach JA in
Masinda
said
that, depending on the circumstances, the supply of electricity or
water may be recognised as being an incorporeal right,
the possession
of which is capable of protection under the mandament. From what the
learned judge carries on to say, however, it
is equally clear that he
envisaged that an alleged right to a supply of electricity or water
may be no more than a 'mere' personal
right, and this is indeed what
he found to be the position in that particular case.
[24]
The difficult question is to identify the precise basis on which an
alleged right to electricity is
to be characterised as being of one
kind or the other.
In general terms, one must, in terms
of
FirstRand v Scholtz
and
Masinda
,
enquire whether the alleged right to electricity was a 'gebruiksreg'
(a right of use) or an 'incident of the possession or control
of the
property' served by the electricity. If so, the mandament is
available to protect the alleged right.
[30]
I do not understand this passage [paragraph 22 in Masinda quoted
above] to mean that, in order to
enjoy protection, the alleged right
to a supply of electricity must be an alleged servitude or a right
that has been registered
or conferred by statute. Between such cases,
and alleged rights which are 'purely personal in nature', lie cases
in which, despite
the personal contractual nature of the alleged
right, the right is not 'purely' personal but 'an incident of the
possession or
control of the property' served by the supply of
electricity. There seems to have been approval for the view of the
author, Duard
Kleyn (referenced in para 13 of
FirstRand Ltd v
Scholtz
), that a right enjoying protection under the mandament
could be real or personal.
[33]
The potentially difficult question is whether a case should be placed
into category
(b)
or
(c)
. A unifying
feature of the cases falling into category
(b)
is
that the person alleged to be under an obligation to supply the
service — Eskom, FirstRand, Telkom, the Irrigation
Board —
was not the person who had conferred on the claimant the alleged
right to occupy the property to which the service
was supplied. The
supplier of the service had no interest in possession of the
property. In each case the only alleged contract
which the supplier
had with the occupant was the contract for the supply of the service.
[34]
In the cases falling into category
(c)
,
by contrast, the alleged right to the service is an adjunct to, or
part of, the alleged right to occupy the property.
The
same person (typically a landlord) who was allegedly obliged to allow
the claimant to be in possession of the property was the
party who
was allegedly obliged to supply, or to allow a supply, of services
such as electricity and water (compare
ATM
Solutions (Pty) Ltd v Olkru Handelaars CC and Another
2009
(4) SA 337 (SCA)
paras
9 – 12). In such cases the landlord has a direct interest in
the possession of the property itself. The landlord's
act in cutting
off electricity and water is an act which interferes not only in the
claimant's alleged right to receive those services
but simultaneously
interferes in the claimant's alleged right against the landlord to be
in undisturbed possession of the premises
with the amenities forming
part of the alleged right of occupation. The claimant's alleged right
to receive electricity and water
is part of the cluster of alleged
rights making up the occupation to which he claims to be entitled.
And in such cases it may be difficult to avoid the conclusion that
the landlord who has intentionally cut off the electricity and
water
is trying to eject the occupant without due legal process. In cases
falling into category
(b)
,
by contrast, the supplier does not and could not have any such
intention.
[35]
Although
Masinda
did not in terms highlight this
distinction, in my view it provides a rational basis on which to
distinguish between an alleged
personal right to a supply which is
'purely' personal on the one hand and one which is 'an incident of
possession of the property'
on the other.
[36]
Leach JA observed in
Masinda
that
in
Naidoo
and
Froman
the courts
granted relief in order to protect the claimants' occupation of the
premises rather than their quasi-possession
of the alleged right to
electricity
.
Eloff J's concluding paragraph
in
Naidoo
indeed described the cutting-off of the
electricity as an act which substantially interfered with the
claimant's occupation
of the premises. In
Froman
, by
contrast, O'Donovan J seems to have conceived himself as protecting
the claimant's quasi-possession of an alleged incorporeal
right to
obtain water and electricity.
[37]
It is no doubt so that in cases such as
Naidoo
and
Froman
(my
category
(c)
) the claimant's true grievance is not a
despoiling of an alleged right to water or electricity viewed in
isolation but the material
adverse impact this has on his occupation
of the premises. I respectfully venture to suggest, however, that
this is equally true
of cases which fall into my category
(b)
.
When Eskom cuts off a user's electricity because of a contractual
dispute, the user's ultimate grievance is the adverse impact
this has
on his use of the premises served by the electricity. The supply of
electricity is of no benefit to the user independently
of his
occupation of the premises.
[38]
In both cases, therefore, one might say that the act of cutting off
the electricity materially disturbs
the claimant in his possession of
the premises, and that the latter occupation is worthy of protection
under the mandament.
In order to discern why the one case is
actionable under the mandament while the other is not, it is
necessary to identify the distinguishing
feature. As I have said, the
distinguishing feature appears to me to be whether or not the alleged
right to electricity is an incident
of, or an adjunct to, the alleged
right which the claimant has against the spoliator to be in
occupation of the premises. If the
alleged right to electricity is an
incident of the claimant's occupation of the premises in this sense,
one can then justly conclude
(a)
that
the alleged right to electricity is the subject of quasi-possession
for purposes of the mandament; and
(b)
that
a spoliation of the said quasi-possession is simultaneously an act of
spoliation in relation to the premises themselves.
[39]
In regard to the second of the conclusions just mentioned, it is
trite that a significant disturbance
in possession can be the subject
of spoliatory relief, even though the claimant has not been wholly
deprived of possession (
Burger
v Van Rooyen en 'n Ander
1961
(1) SA 159 (O)
at
160G – 161C; see also AJ van der Walt's note on
Naidoo
in
1983 (46)
THRHR
237
and MJ de Waal's note on the same case in 1984 (47)
THRHR
115).
[40]
It may be said that if, in such cases, there is an act of spoliation
constituting a material interference
in the claimant's possession of
the property itself, it is unnecessary to justify the granting of
relief on the basis of the quasi-possession
of an alleged right to a
supply of electricity. That may be so, but in order to decide whether
the cutting-off of electricity is
indeed an act of spoliation in
relation to the property itself, it is necessary to focus on the
nature of the alleged right to
the supply of electricity, in order to
satisfy oneself that the case falls into category
(c)
rather
than category
(b)
. Furthermore, the fact that spoliatory
relief can be based on a conventional interference in the possession
of corporeal property
does not mean that the alternative (or
additional) justification, based on quasi-possession of an alleged
right, is unsound. In
this regard, Hefer JA said the following in
Bon
Quelle
(at 516D – E, my emphasis):
'In sy
Sakereg
Vonnisbundel
(op
54) wys Prof Sonnekus daarop dat dit in sommige van die beslissings
onnodig was om die begrip van die besit van 'n reg
te gebruik. Dit
was gevalle waar die uitoefening van 'n reg so nou verbonde was aan
die besit van 'n liggaamlike saak, dat die
verlies daarvan beskou kan
word as inbreuk op die besit van die saak self. (
Froman
v Herbmore Timber and Hardware (Pty) Ltd (supra)
waar
die krag- en watervoorsiening aan 'n huis afgesny is, was bv so 'n
geval. Vgl
Naidoo
v Moodley
1982
(4) SA 82 (T)
op 84A – B.)
Maar
dit is nie altyd so nie, en die feit dat dit in sommige gevalle
moontlik is om 'n spoliasiebevel op 'n ander basis te verleen,
is
onvoldoende rede vir die verwerping van die begrip
.'
[41]
In the above analysis, I have spoken throughout of 'alleged' rights.
This is because in spoliation
proceedings the claimant does not need
to establish his alleged rights. However, the claimant does need to
establish acts demonstrating
the possession of the corporeal property
or quasi-possession of the alleged right. In my category
(c)
,
the claimant's occupation of the premises, and his or her use of its
electrical appurtenances, constitutes the possession of the
premises
and the quasi-possession of the alleged right to electricity as an
incident of his or her possession of the premises.”
(Emphasis added)
VI
EVALUATION OF THE EVIDENCE AND SUBMISSIONS BY THE PARTIES
[17]
It is the first respondent’s contention that the three
applicants, to wit Spar, Engen and
the Monotsa Trust, are indebted to
it for historic electricity consumption and that it was entitled to
disconnect the consumers’
electricity supply. Relying on
the Constitution and other authorities,
[25]
the first respondent submitted it was not unlawful to do so.
Its case, as presented, was that the consumers wrongfully believed
that they were entitled to municipal services without having to pay
for that. The first respondent was entitled to utilize
its debt
enforcement processes to terminate the electricity supply of the
recalcitrant non-paying consumers. The factual
matrix has been
provided above and I do not intent to repeat most of it in my
evaluation. That does not mean that I preferred
to ignore those
facts.
[18]
The Municipality shall set the tone, showing respect to
inter
alia
the Constitution, while it has to protect the rights of its citizens
as clearly set out in
Municipal
Manager O.R. Tambo District Municipality and Another v Ndabeni.
[26]
I shall soon conclude whether it has done just that.
[19]
I reiterate as mentioned above that insofar as the
applicants rely on the mandament van spolie, the respondent
contending that dispossession was lawful bears the onus of
establishing same.
[27]
[20]
I am prepared to accept in favour of the respondents and merely for
purposes of the conclusion
to be arrived at (although the issue
remains in dispute and therefore contentious) that a valid Credit
Control & Debt Management
Policy (“the policy”) was
in place although the applicants pointed out disturbing facts such as
that the second respondent
signed the policy – the document
serving before the court - on 25 February 2022 only, which is after
the electricity supply
was terminated in both instances and after
rules
nisi
had been obtained. Also, no proof was
provided that the approved policy was communicated to consumers as
provided for in clause
13 thereof. Having said this, I accept
that the first respondent has the right to credit control and to take
effective measures
to ensure that the debts of its customers are
recovered in a lawful manner.
[21]
The credit control measures are contained in clause 7.6 of the
policy. Clause 7.6.1 stipulates
that a warning notice, stating
that the account has not been paid on due date, shall be delivered to
a debtor’s physical
address and that in the case of failure to
pay within seven days, services will be restricted and/or
disconnected. It continues:
“Accounts owing 90 days and
more will be subject to cut off and other credit control measures.”
Furthermore,
clause 7.6.1(c) is clear: electricity
disconnection must be accompanied by a further notice setting out the
reason for discontinuance
of the service. The first respondent failed
to comply at all. The notice – annexure “WK5” in
application 567/2022
and “WK6” in application 824/2022 –
does not comply with this provision as correctly conceded by the
respondents’
attorney. In any event, this notice was not
delivered at the physical addresses of the consumers, did not provide
any details
of the account numbers, the services rendered, the period
during which services were rendered and what amounts were due and
payable.
This undated letter must have been generated about two
years before the electricity supply was eventually terminated.
Disconnection
occurred notwithstanding the letters of the applicants’
attorney mentioned above to which no response was forthcoming.
[22]
The policy also makes provision for a dispute resolution process in
clause 8 and over and above that, clause
12 deals with enquiries and
appeals. I do not intend to deal with the process, but it is
apparent that notwithstanding the
letter of the applicants’
attorney dated 8 July 2020 the first respondent did nothing to
resolve the disputes raised, while
clause 8.2.2(f) stipulates that
disputes must be resolved within three months. In fact, in this
letter the attorney recorded
that several disputes had been lodged in
the past, but not attended to. Clause 12.2 stipulates
that “every customer
has the right to ask and to be provided
with a clear explanation as to the services being charged and a
breakdown of all amounts
shown on their account.”
The respondents’ failure to respond in this regard as requested
is inexcusable.
[23]
The respondents allege that huge amounts are payable by the various
consumers as indicated above.
No affidavit has been provided by
first respondent’s financial manager or any other senior person
in the Finance Department.
No tax invoices and no breakdowns of
the alleged outstanding amounts were provided. The reliance on
e-Venus printouts is
nonsensical as the author thereof has not been
identified. It is uncertain from which information and/or
primary sources
the printouts were generated. The bases for the
alleged indebtedness in each and every case, such as the services
allegedly rendered
and during which time frames these were rendered,
are absent from the documents. The alleged historic debt is
thus not explained
at all.
[24]
I am satisfied that the respondents failed to prove that it acted
lawfully when the electricity
supply to the customers was
disconnected. They ignored their own policy, did not follow a
due process, including a process
of administrative fairness, and
resorted to self-help. It was not shown that the consumers were
in breach of their obligations
to pay what was due to first
respondent at any relevant time.
[25]
The respondents irresponsibly refused to engage
with the consumers in an attempt to resolve the interruption
dispute
in circumstances that they should have appreciated that serious harm
would be suffered if urgent relief was not granted.
[26]
I am satisfied that the applicants have made out a proper case to
succeed with the mandament
van spolie. They have proven the two
requirements. They have been in peaceful and undisturbed
possession of the properties
of which the right to electricity was an
incident of possession and they have been unlawfully despoiled of
their rights when the
electricity supply was terminated. I
therefore agree with the
dicta
in
Makeshift supra.
I
repeat that the consumers’ right to electricity is an incident
to their right to occupation of the particular business premises
and
is therefore considered as the subject of quasi-possession.
Spoliation of such quasi-possession is an act of spoliation
in
relation to the respective premises. There can be no doubt that
the supply of electricity is an essential service to the
consumers.
These conclusions are in line with the following
dictum
in
Masinda supra
which I repeat: “In order to justify a
spoliation order the right must be of such a nature that
it vests
in the person in possession of the property as an incident of their
possession.
” The Supreme Court of Appeal found
against Ms Masinda who relied on the mandament van spolie, but the
facts
in casu
are clearly distinguishable from those in
Masinda
in that unlike in
Masinda
, the restoration of
the supply of electricity will not be unlawful or constitute a danger
to the public. In fact, it will
be to the public benefit.
[27]
I should mention that it is not the respondents’ case that the
mandament van spolie can
never be relied upon by consumers.
They do not doubt that my conclusion pertaining to the law is
correct, but maintain that
in casu
, the consumers were not in
peaceful and undisturbed possession by virtue of their indebtedness
and consequently, the first respondent
was entitled to disconnect the
electricity supply. They are wrong. The facts speak for
themselves: electricity was
disconnected without any prior warning,
contrary to the first respondent’s own policy and without an
accusation that the
consumers were not entitled to quasi-possession
because of their alleged indebtedness.
[28]
Although unnecessary to discuss in any detail, I am also satisfied
that the applicants proved that they were
not afforded any procedural
fairness as explained in
Joseph
supra
.
The consumers were not given an opportunity to participate in the
decisions that would affect them. They did not receive
any of
the notices mentioned in the policy referred to above. Proper
statements and invoices are non-existent. The
process adopted
failed to enhance the legitimacy of the decisions to disconnect the
electricity. Quite the contrary.
When the facts are
considered, the first respondent, led by the second respondent as its
accounting officer, did not live up to
the constitutional commitment
to a responsive and accountable public administration.
[28]
VII
CONCLUSION
[29]
I am satisfied that the applicants in both applications have made out
proper cases to be awarded
final relief. The rules
nisi
shall be confirmed. The rule
nisi
in application
567/2022 was extended on 3 March 2022, the costs having been
reserved. The respondents’ answering affidavit
was filed
on that day, necessitating a postponement. Those costs shall
form part of the costs order to be awarded.
The court granting
the rule
nisi
on 11 February 2022 already made an order that
the respondents shall pay the “costs of this application”
jointly and
severally on an attorney and client scale. That
order did not form part of the rule
nisi
and I cannot
interfere with it. It remains operative. Insofar as costs
stood over in application 824/2022 for later
adjudication as
mentioned above, there is no reason why those costs should not form
part of the costs order to be granted.
A proper case has been
made out for urgent relief. I did not deal with urgency in this
judgment as my learned sisters who
granted the rules
nisi
accepted
that the applications were urgent. The issue of urgency has
become moot. I merely wish to point out that although
the
consumers can utilize generators for short periods and at excessive
costs when their electricity supply is cut during power
outages
experienced from time to time, they have made out a clear case, which
was in any event not disputed, that electricity as
a basic municipal
service has become virtually indispensable, bearing in mind the type
of businesses conducted.
[30]
In part B of the notice of motion issued under application 567/2022
provision was made for an
order directing the first and second
respondents to resolve disputes declared under s 102 of the Systems
Act within 90 days, alternatively
such time considered reasonable by
the court. This issue was not specifically dealt with during
oral argument and I was not
asked to make an order in this regard.
The first respondent knows what it has to do. It has to comply
with its own
policy pertaining to the disputed claims and it is not
necessary to make any order in this regard.
[31]
The applicants, being the successful parties, are entitled to their
costs on a party and party scale.
VIII
ORDERS
[32]
Consequently, the following orders are issued:
application
567/2022
1.
The rule
nisi
issued on 11 February 2022 is confirmed with
costs, to wit such costs incurred after 11 February 2022 and
including the costs occasioned
by the postponement on 3 March 2022.
application
824/2022
1.
The rule
nisi
issued on 25 February 2022 is confirmed with
costs, including the costs reserved on 25 February 2022.
JP
DAFFUE J
On
behalf of the applicants in both applications:
Adv DH Wijnbeek
Instructed
by:
Andreas Peens Attorneys
c/o Rosendorff Reitz
Barry
BLOEMFONTEIN
On
behalf of the 1
st
and 2
nd
respondents
in
both applications:
Mr
MC Radebe
Instructed
by: Radebe
Attorneys
BLOEMFONTEIN
[1]
Application 567/2022: pp 98/9
[2]
Application 824/2022: pp 76/7
[3]
Application: 567/2022, para 17 and annexure “WK5” on p
36; also annexure “WK6” on p 41 of application
824/2022
[4]
2010 (4) SA 55
(CC) at paras 24, 26 & 31
[5]
32 of 2000
[6]
Application 567/2022: para 15, p 11 and annexures “WK3”
& “WK4”, read with annexure “WK6”
pp 37
- 41; application 824/2022 para 15, p 10 and annexures “WK4”,
pp 26 – 38 read with annexure “WK5”
on p 39 - 40
and “WK7” on pp 42 - 46
[7]
Annexures “WK12” & “WK13” on pp 51 - 56
[8]
Annexures “WK12” & “WK13” on pp 55 - 58
[9]
Application: 562/2022: answering affidavit para 4.2, p 113;
application 824/2022: answering affidavit para 2.12, p 85
[10]
Application: 567/2022, p 10
[11]
Application: 567/2022, para 22, p 13 read with “WK7” to
“WK11” pp 42 – 50; application 824/2022,
para 22,
p 12 read with “WK8” to “WK10” pp 47 - 52
[12]
Application
824/2022: para 3.3, p 192 & application 567/2022, para 2.6, p
107
[13]
Application: 567/2022, pp 108 read with annexures “TDO1”
– “TDO3”, 126 & 128
[14]
Application: 824/2022: annexure “SSS1”, p 101 &
102
[15]
Paras
3.5 – 3.8, p 193, read with annexures “CAD1 - 11”,
pp 228 - 238
[16]
See for example paras 4.5 & 4.6 of the answering affidavit in
application 567/2022 on p 114
[17]
Answering affidavit in application: 567/2022, para 4.8, p 115
[18]
Founding affidavit in application: 824/2022, para 15, pp 9 & 10,
annexures “WK4” & “WK5” pp 26
–
37, read with answering affidavit para 4.9, p 91
[19]
Paras 3.1 – 3.3.3, application: 824/2022, p 88
[20]
P 170
[21]
2014
(5) SA 112
(CC) paras 10 - 13
[22]
Impala
Water Users Association v Lourens NO and others
2008 (2) SA 495
(SCA) para 17 read with paras 22 – 27 and
Bill
v Waterfall Estate Homeowners Association NPC and another
2020 (6) SA 145
(GJ) para 35
[23]
2019 (5) SA 386 (SCA)
[24]
2020 (5) SA 538
(WCC), quoted with approval in
Wilrus
Trading CC and another v Dey Street Properties (Pty) Ltd and others
,
case no 1750/2021, an unreported judgment from the Gauteng Division,
Pretoria delivered on 9 February 2022
[25]
Sections
152(1)(b), 155 & 156(5) of the Constitution, ss 96 & 102 of
the Systems Act,
Rademan
v Moqhaka Municipality
[2013] ZACC 11
at para 10 as well as its policy
[26]
[2022] ZACC 3
(14 February 2022, at para 38
[27]
Impala
Water Users Association v Lourens NO and others
2008 (2) SA 485
(SCA) paras 22 – 27 and
Bill
v Waterfall Estate Homeowners Association NPC and another
2020 (6) SA 145
(GJ) para 35
[28]
See in general:
Joseph
supra
,
Grey’s
Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and
others
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA) para 23 and s 3(2) of the Promotion of
Administrative Justice Act (“PAJA”)