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[2022] ZANCHC 46
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Careline Clinic (Pty) Ltd v AL-Kant Opbergers en Verpakkers CC and Others (1572/2022) [2022] ZANCHC 46 (9 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Not
reportable
Case
No: 1572/2022
In
the matter between:
CARELINE
CLINIC (PTY) LTD
APPLICANT
and
AL-KANT
OPBERGERS EN VERPAKKERS CC
FIRST RESPONDENT
MVD
KALAHARI CONSULTING ENGINEERS
AND
TOWN PLANNERS (PTY) LTD
SECOND
RESPONDENT
SOL
PLAATJE MUNICIPALITY
THIRD
RESPONDENT
Heard:
12 August 2022
Delivered:
09 September 2022
JUDGMENT
Phatshoane
DJP
Introduction
[1]
Careline Clinic (Pty) Ltd, the applicant, approached this Court on an
urgent basis
for an order that Al-Kant Opbergers en Verpakkers CC
(Al-Kant), MVD Kalahari Consulting Engineers and Town Planners (Pty)
Ltd (MVD),
and Sol Plaatje Municipality, the first, second and third
respondent (collectively referred to as the respondents) and any
person
acting through them be interdicted from laying electricity
cables or erecting service connection below the ground on its
premises
situated at R31 Provincial Road, El Toro, also known as Erf
43870, Kimberley; further interdicting the said respondents from
connecting
electrical cables to its ring main unit (RMU)
[1]
switch house or to enter and or trespass on the said property. Only
Al-Kant resisted the application whereas the municipality filed
a
notice to abide the decision of the Court.
[2]
The relief sought, in my view, is sufficiently urgent to warrant
being heard on a
truncated basis. Should the application be disposed
of in the ordinary course its purpose may be defeated, and the relief
rendered
moot. Although the order sought was initially on an interim
basis, pending the determination of the application on the return
day,
it is now final in effect. This is so because on the date of the
hearing of the application all the necessary affidavits, albeit
on
suitably abridged time periods, had been filed and the issues fully
ventilated through argument. Certain preliminary points
were also
raised in the parties’ respective papers which sought to attack
the authority and standing of the deponents. At
the hearing of the
application, these were not persisted in.
[3]
I firstly consider the relief. The applicant’s prayer that the
respondents be
interdicted from laying electricity cables or erecting
service connection below the ground on its premises, so too, a prayer
that
they be denied access to its premises for purposes of laying
electrical cables has simply no basis. It is an express condition of
the applicant’s Deed of Transfer: T889/2013 that it would be
obliged, without compensation, to allow electricity cables and
wires
to be conveyed across the erf and that the municipality would have
the right of access to the erf at any reasonable time
for purposes of
constructing any works. Condition B of the said title deed is couched
in these terms:
‘
SUBJECT
to the following condition as imposed and enforceable by Sol Plaatje
Municipality, namely:
1.
The owner of
this erf shall, without compensation, be obliged to allow
electricity, telephone and television cables and/or wires
and main
and/or other water pipes and the sewage and drainage, including storm
water of any other or even inside this township
to be conveyed across
the erf, if deemed necessary by the local or other statutory
authority and in such manner and position as
may from time to time be
reasonably required. This shall include the rights of access to the
erf at any reasonable time for the
purpose of constructing, altering,
removing or inspecting any works connected to the above.’
[4]
The municipality has reserved, in its favour, a right in the nature
of a personal
servitude registered against the applicant’s
title deed, enduring for an indeterminate period, and enforceable
against the
applicant.
[2]
On the
papers before me, there is no indication that the applicant had
previously made an application for the removal of the restrictive
condition nor is the right registered against the title under any
attack in these proceedings.
[5]
In any event, s 139(1)(c) of Municipal Ordinance 20 of 1974 (the
Ordinance) provides
that a council may, within or outside its
municipal area, construct, erect and lay any public sewer, public
drain, water main,
gas main or electricity main on, across, through,
over or under any street or immovable property and the ownership of
any such
sewer, drain or main shall vest in the municipality. An
“electricity main" means conduits, cables or other
things
for the conduction or transmission of electricity by or on
behalf of a municipality to consumers and includes all things of
whatsoever
nature necessary or desirable for or incidental,
supplementary or ancillary to an electricity main.
[3]
Section 176 (1)(a) of the Ordinance further provides that ‘(e)very
council shall, through its councillors, employees, contractors
and
their assistants and advisers, have access to or over any property
for the purposes of doing anything authorised or required
to be done
by the council under the ordinance
or
any other law
.
However, s 176(3) provides that ‘(a)n employee of a council
authorised thereto by such council may, by notice in writing
served
on the owner or occupier of any property, require such owner or
occupier to provide, on the day and at the hour specified
in such
notice, access to such property to a person and for a purpose
referred to in subsection (1).
[6]
The relief which lies at the heart of the contestations is that of
prohibiting the
respondents from connecting electrical cables to what
the applicant alleges to be its RMU. It should be considered whether
the
RMU, that is situated in the applicant’s premises, belongs
to it or the municipality. As I see it, if it is found that the
RMU
belonged to the applicant, it follows that the municipality could not
give consent to Al-Kant and MVD to dig the trenches,
as it did, at
the perimeter fence and to lay cables to the RMU of the applicant for
purposes of connecting electricity, without
the applicant’s
knowledge and its concurrence. The determination of the application
is therefore to be devoted to this aspect.
[7]
The background is largely common cause. On 29 August 2012 Sol Plaatje
Local Municipality
(the third respondent/ municipality) approved the
applicant’s application to purchase and install the metered RMU
on,
inter alia
, the following conditions:
‘
Similarly,
with regarding to the purchasing of the metered ring main unit, this
Sub-Directorate Electrical Service
will permit you to purchase and
install
the non-extendable 11k V RMU with bulk metering unit,
which is to comply with all municipal specification as stipulated by
the
yearly tender, which can be obtained by the distribution
superintendent MR, Faud Aysen telephonically at 053…..
All
technical specifications and standards [are] to be first submitted to
this Sub-Directorate Electrical Services for verification
and
approval before the metered ring main unit is purchased by your
company. However, the bulk meter would have to be installed
and
commissioned by technical staff from this municipality as it will be
maintained and serviced by the municipality.
Furthermore,
permission will be granted for your company on behalf of your
client to the purchasing and installation
of the two 11k V 70mm
2
x 3Core Copper P.V.C. table 19 steel wired armoured cable
including the individual 50mm squared solid earth wires to be
installed
with these two individual 11k V cables, that would also
have to be verified and approved by the Distribution Superintendent
before
purchasing and installing.
The
concrete slabs to be installed over these to individual 11k V cables
for [their] full length are also to meet all municipal
standards and
specifications.
The
11k V cable trench route from the MacDougall Street 66/11k V
sub-station to the proposed ring main unit switch house would have
to
be set out and determined on site where all municipal standard and
specification regarding the digging and preparation of this
cable
trench is to be adhered to and is to be inspected by distribution
superintendent M, Faud Aysen before and after closure.
Technical
staff from the Sub-Directorate Electrical Services would be
responsible for termination of the 11k V cable ends within
the
sub-station and the joining of the installed 11k V cable ends as
installed by your registered appointed electrical contractor
and will
also [include] the purchase and installation of the 11k V metal clad
switch breaker at MacDougall Street main 66/11 k
V sub-station and
bulk metering point, once a scaled site location has been [finally]
determined.
The
client would be required to pay a registration fee amount of R
205,702.52 (VAT included) at the rate hall ground floor of the
new
wing at the Sol Plaatje Municipality before the permanent electrical
supply point will be energized to the site including all
other
outstanding municipal costs.
It
will also be your responsibility to make the necessary way leave
application to the municipal water work and sanitation section
regarding the position and location of [the] individual services
including Telkom services.’(My emphasis)
[8]
On 21 July 2022, Dr Netsa Keith Kirimi, the applicant’s manager
and its deponent,
observed that trenches leading to the perimeter
fence of the applicant had been dug. On his investigative work, it
became known
to him that Al-Kant was developing a residential complex
opposite Gariep Private Hospital and that MVD was Al-Kant’s
electrical
consulting engineers responsible for digging the trenches.
Mr Jonck of MVD informed Dr Kirimi that MVD intended to lay
electrical
cables in those trenches in order to connect them to the
RMU erected by the applicant on its premises with the applicant’s
financial resources and the concurrence of the municipality. The
project undertaken by MVD in this regard is intended to supply
electricity to the residential development adjacent to Gariep Private
Hospital. According to Dr Kirimi, it was important for the
applicant
to erect the RMU on its premises for the convenient supply of
electricity to its facility, its optimal functioning, and
its
anticipated future growth with regard to its proposed 46-bed facility
and staff accommodation. The applicant’s neighbouring
Gariep
Private Hospital and Kimberley Mental Hospital have erected their
RMUs.
[9]
Mr Petrus Arnoldus Els, a member of Al-Kant and its deponent, says
that the RMU in
issue is the property of the municipality and fell
under its control. The fact that the applicant bore the costs of the
installation
of the RMU infrastructure did not confer upon the
applicant any right to the infrastructure. He states that if the
applicant’s
electrical requirements were to increase beyond the
supply already approved by the municipality, it would have to apply
for the
increase from the municipality.
[10]
Mr Els further states that the RMU in issue, although it is situated
inside the applicant’s
premises, it is adjacent to the
perimeter fence to enable the municipality, its workers and
contractors approved by it, to gain
easy access to the RMU in order
to conduct maintenance, repairs, upgrades and to connect additional
electrical cables when the
need arises. Mr Els further asserts that
should the relief sought be granted Al-Kant stood to suffer prejudice
as it had spent
in excess of R30 million in respect of its project.
In addition, third parties have already purchased properties in the
development
which will be transferred to them once all the bulk
services in respect of the development had been installed and
approved by the
municipality.
[11]
Whether the municipality granted Al-Kant permission to connect
electrical cables to the RMU situated
in the applicant’s
premises is a bit nebulous. Dr Kirimi states that Mr Oren Groenewalt
of the municipality denied that such
permission had been granted at
the meeting he had with him on 28 July 2022. In its answering
affidavit Al-Kant attached various
correspondence from the
municipality in terms of which, it averred, permission had been
granted. I could find no such explicit
authorisation. However, in the
municipality’s Notice to abide the decision of this Court, Mr
Groenewalt attested to an affidavit
wherein he stated that the
approval was granted to Al-Kant on condition that it would be
responsible for the full cost of a new
95 mm² x 3 Core PILC
11kv/6 35 kV Copper (table 17) cable from the present ABB RMU
situated in the applicant’s premises.
On further enquiries by
the applicant, regarding the authority granted to Al-Kant, and by
extension MVD, the municipal manager
on 03 August 2022 confirmed that
Al-Kant was permitted to dig the trenches because it had applied for
a way leave on 8 February
2022 in terms of s 10 Chapter 2 of the
Municipal By-Law
[4]
on general
conditions of supply.
[12]
On 03 August 2022 the applicant’s legal representative sought
an undertaking from the municipality
that Al-Kant would not connect
electricity from its RMU but from the MacDougall Street main 66/11 k
V substation. The e-mail was
not responded to. The applicant
submitted that it is currently servicing a loan it acquired to build
the hospital and the RMU.
In order to have electricity supplied to
its hospital it dug trenches and laid electrical cables from
MacDougall Street main 66/11
k V substation, approximately a
kilometre from the applicant’s premises, at a great financial
expense. It can conceive of
no reason why Al-Kant and MVD ought not
to have done the same.
[13]
The requisites for the right to claim a final interdict are trite.
The applicant must show a
clear right, injury actually committed or
reasonably apprehended, that is, an unlawful infringement (actual or
threatened) of the
applicant’s clear right, and the absence of
similar protection by any other ordinary remedy.
[5]
[14]
It was contended for the applicant that the municipality does not
have the authority to grant
Al-Kant permission to connect electrical
cables to its RMU switch house without the consent of the applicant
and that Al-Kant did
not comply with the Sol Plaatje Municipality
Electricity By-Law No 10 of 2006 (the By-law). Al-Kant’s
stance is that
following the applicant’s erection of the RMU
the municipality became the owner thereof and is entitled to add new
electricity
connections to the RMU in accordance with its overall
planning of infrastructure as well as the approved applications for
new electricity
supply. As support for this
argument, Al-Kant relies on s 23 of the Electricity Regulation Act 4
of 2006
(the ERA) read with s 46 of the By-law.
[15]
What is immediately conspicuous from the correspondence referred to
earlier, in terms of which
the municipality granted permission to the
applicant to erect the RMU switch house on the applicant’s
premises, is that the
municipality never mentioned that, albeit the
applicant was the purchaser of the electricity infrastructure, the
municipality retained
ownership thereof. Neither was the applicant
informed that the municipality may connect additional electrical
cable to the RMU
when the need arises as suggested by Al-Kant.
The protection of property interests and the legitimacy of state
interferences
with property must be understood – and weighed
against each other – with reference to constitutional
principles, goals
and values.
[6]
[16]
Section 23 of the ERA provides:
‘
23
Electricity infrastructure not fixtures
(1)
Any
asset belonging to a licensee that is lawfully constructed
,
erected, used, placed, installed or affixed to any land or premises
not belonging to that licensee, remains the property of that
licensee
notwithstanding the fact that such an asset may be of a fixed or
permanent nature.
(2)
An asset belonging to a licensee in terms of subsection (1)-
(a)
may
not be attached or taken in execution under any process of law, or be
the subject of any insolvency or liquidation proceedings,
instituted
against the owner of the land, the landlord or the occupier of the
premises concerned;
(b)
may
not be subjected to a landlord's hypothec for rent; and
(c)
may
only be validly disposed of or otherwise dealt with in terms of a
written agreement with the licensee.’
[17]
Section 22 concerns powers of entry and inspection by the licensee.
It states that:
‘
(1)
Any person authorised thereto by a licensee may at all reasonable
times enter any premises to which electricity is or has been
supplied
by such licensee, in order to inspect the lines, meters, fittings,
works and apparatus belonging to such licensee, or
for the purpose of
ascertaining the quantity of electricity consumed, or where a supply
is no longer required, or where such licensee
may cut off the supply,
for the purpose of removing any lines, meters, fittings, works and
apparatus belonging to such licensee.
(2)
Any person wishing to enter any premises in terms of subsection (1)
shall-
(a)
if
possible, make the necessary arrangements with the legal occupant of
the premises before entering such premises and shall adhere
to all
reasonable security measures, if any, of the occupant or owner of the
premises;
(b)
exhibit
his authorization at the request of any person materially affected by
his activities.
(3)
Damage caused by such entry, inspection or removal shall be repaired
or compensated for by the licensee.’
[18]
Section 23(1) of the ERA creates an exception to the principle of
accession in that none of the
auxiliary things that are attached to
the land or premises of an owner will become their property.
[7]
The difficulty with the respondent’s submission is that
the RMU in issue was not an asset that belonged to the municipality.
I do not read s 23 to bestow ownership of the RMU (the assets) on the
municipality in circumstances where the latter had not purchased
the
assets in issue and or the fixture concerned had not been
constructed, erected or placed or affixed by it. As stated, the
applicant’s subjective intention was to erect the RMU on its
premises for the convenient supply of electricity to its hospital,
its optimal functioning and its anticipated future growth and staff
accommodation. In these circumstances, common sense or the
prevailing
standards of the society would not dictate that ownership of the
assets adhere to the municipality.
[19]
Section 46 of the By-Law featured prominently in the respective
parties’ contention. The
applicant contends that there had been
no compliance with the section whereas Al-Kant countervailed that, by
virtue of s 46, ownership
of the RMU resided with the municipality.
Section 46 of the By-Law provides in part:
‘
(1)
The consumer shall bear the cost of the service connection, as
determined by the Municipality.
(2)
Notwithstanding the fact that the consumer bears the costs of the
service connection, ownership of the
service connection,
laid or
erected by the Municipality
, shall vest in the Municipality, and
the Municipality shall be responsible for the maintenance of such
service connection up to
the point of supply. The consumer shall not
be entitled to any compensation from the Municipality in respect of
such service connection.
(3)
The work to be carried out by the Municipality at the costs of the
consumer for service connection to
the consumer’s premises
shall be determined by the Municipality or any duly authorised
officer of the Municipality.
(4)
A service connection shall be laid underground, whether the supply
mains are laid underground or erected
overhead, unless an overhead
service connection is specifically required by the Municipality.’
[20]
There is no dispute that the applicant paid the costs of the service
connection which is defined
in the By-Law as all cables and equipment
required to connect the supply mains to the electrical installation
of the consumer at
the point of supply, being the municipality’s
electrical network. On the plain reading of s 46, it does not confer
ownership
of the electrical installation on the municipality. The
Electrical Installation Regulations promulgated
in terms of the
Occupational Health and Safety Act, 1993
[8]
are also silent on ownership of the electrical installation. However,
they provide that the supplier (which would be the municipality),
defined as a person who supplies or contracts or agrees to supply
electricity to that electrical installation should be notified
of the
commencement of the installation work which requires a new supply or
an increase in electricity supply capacity.
[9]
[21]
In
Setlogelo
v Setlogelo
[10]
the
Appellate Division held:
‘
Prima
facie
, the disturbance of a
man's
bona fide
possession
is such an injury to him as to justify the granting of an interdict.
If such a disturbance takes place in circumstances
which show that
the trespasser honestly believes that he has a better right to
possession than the occupier, or at all events,
has an equal right,
the Court would be justified in withholding the interdict until the
relative rights of the parties have been
decided by action. But
where, as in the present case, the fact of the disturbance of a
bona
fide
possession is not denied,
and no single fact is adduced to show that the trespasser had or
honestly believed that he had,
an equal right as, or a better right
than, the occupier, the disturbance should be treated as an act of
spoliation, and the parties
should be replaced in the position in
which they were before the act was committed. The interdict ought, in
my opinion, to have
been granted in order to place the parties in
that position.
[22]
The applicant does not claim that it has the right to supply and
distribute electricity as Al-Kant
sought to suggest. Neither is the
applicant operating any generation, transmission or distribution
facility as envisaged in
s 7(1)
of the ERA. Not only is the
applicant the occupier of the land upon which the RMU is situated,
but on its uncontradicted
version, it erected the RMU and still pays
for its installation. I am therefore of the view that the applicant
established a clear
right and satisfied all the requirements for the
final interdict. Save to state that: ‘(I)t is not simply
for the applicant
to decide and instruct that the [municipality] must
instruct [Al-Kant] and [MVD) to connect to the MacDougall
substation,’
nothing was placed before the court, by any of the
respondents, in response to the applicant’s averment that the
respondents
were not impeded from sourcing the electricity from the
MacDougall Street point of supply, where the applicant was also
permitted
to acquire its electricity supply.
[23]
It ought to be emphasised that in terms of s 153 of the Ordinance,
where any work in respect
of the provision of services
[11]
necessitates interference with or alteration to any works for
the distribution of water, gas or electricity (as it appears
to be
the case here) owned by some person other than a council, the
necessary work for the protection or alteration of such works
shall
be carried out by such person at the cost of the council and any
dispute as to the amount of such cost shall be determined
by the
Administrator. Section 140(1) of the Ordinance obliges the council,
before commencing any work other than repairs or maintenance
on or in
connection with any municipal service works within its municipal area
on immovable property not owned by it or under the
control or
management of the council, to give the owner and occupier of such a
property reasonable notice of the proposed work
and the date on which
it proposes to commence such work.
[24]
The municipality’s action, in granting permission to Al-Kant
and MVD to acquire electricity
from the applicant’s RMU without
affording the applicant an opportunity to be heard, in the present
constitutional setting,
is untenable. As already said, any relief
that the respondents be restricted
from
laying electricity cables or erecting service connection below
grounds on the applicant’s premises would be inimical
to the
conditions registered against the title and must fail. However, any
such acts done, solely for the purposes of connecting
the electricity
cables to the applicant’s RMU cannot be defensible. In my view,
the applicant has achieved substantial success,
therefore there can
be no reason why it should be deprived of its costs.
In
the result, I make the following order:
Order:
1.
Al-Kant
Opbergers en Verpakkers CC (Al-Kant), MVD Kalahari Consulting
Engineers and Town Planners (Pty) Ltd (MVD), and Sol Plaatje
Municipality, the first, second and third respondent,
and
any person acting through them, are interdicted from directly or
indirectly connecting- electrical cables to the ring main unit
of the
applicant or part thereof situated on
Erf
43870,
R21
Provincial Road, El Toro, Kimberley.
2.
The first
respondent is to pay the costs of the application.
MV
Phatshoane DJP
APPEARANCES
:
FOR
THE APPLICANT:
Adv
BM
Babuseng
Instructed
by: Lulama
Lobi inc
FOR
THE FIRST RESPONDENTT: Adv
AG Van Tonder
Instructed
by: Van
De Wall inc.
[1]
Electrical
power distribution system (referred to by the applicant as an
electrical substation.)
[2]
Vestin
Eshowe (Pty) Ltd v Town Council of The Borough of Eshowe
1978 (3) SA 546
(N) at 549H.
[3]
Section
2 of Municipal Ordinance 20 of 1974.
[4]
Sol
Plaatje Municipality Electricity By-Law No 10 of 2006.
[5]
Setlogelo
v Setlogelo
1914
AD 221
at
225-226.
[6]
Constitutional
Property Law (Juta-e-Publications) AJ van der walt and GJ Pienaar,
3
rd
Ed- 2011 ch3-p102.
[7]
The
Law of Property, Silberberg and Schoeman’s, 6
th
Ed, para 14.5.3.7 at 397.
[8]
Issued under Notice 31975 GOVERNMENT GAZETTE, 6 MARCH 2009.
[9]
See
Regulation 8 Ibid.
[10]
Ibid
fn 4
at
225-226.
[11]
Chapter
XI, Part 1, Provision of Municipal Services (Sewerage, Drainage,
Water, Gas and Electricity)
.