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[2022] ZAECMHC 48
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Ngandlela and Others v King Sabata Dalindyebo Local Municipality and Others (1536/2022) [2022] ZAECMHC 48 (13 December 2022)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Reportable
Case
no: 1536/2022
Date
heard: 20/10/2022
Date
delivered: 13/12/2022
In
the matter between:
MADODOMZI
NGANDLELA FIRST
APPLICANT
MVUYISI
MATUNDO SECOND
APPLICANT
XOLISWA
DYWILI THIRD
APPLICANT
MAYDENE
FARM EXTENSION RESIDENTS FOURTH
APPLICANT
and
KING
SABATA DALINDYEBO LOCAL MUNICIPALITY FIRST
RESPONDENT
THE
MUNICIPAL MANAGER: KING SABATA
DALINDYEBO
LOCAL MUNICIPALITY
SECOND RESPONDENT
THE
INDIGENT COMMITTEE THIRD
RESPONDENT
JUDGMENT
Notyesi
AJ
Introduction
[1]
The applicants brought these proceedings by way of urgency, seeking
interim
relief for the reconnection of their electricity supply,
pending the determination of a declarator on the lawfulness of the
respondents’
action in disconnecting the electricity supply to
the applicants’ residential places which are situated at
Maydene Farm Extension,
Mthatha.
[2]
The electricity supply is in relation to the first, second and third
applicants’
(collectively referred to as the applicants)
residences, being house numbers 2[…] (first applicant), 2[…]
(second
applicant) and 2[…] (third applicant) and which was
allegedly disconnected by the respondents during the month of April
2022.
[3]
The applicants contend that they are indigent persons and in this
regard,
they had applied, in terms of the first respondent’s
indigent policy 2021/2022, for an indigent subsidy. In terms of this
policy, all registered indigents, including consumers in the rural
areas, will receive 50kwh of electricity per month fully subsidised
or an amount to be determined by Council on an annual basis.
[4]
The applicants further contend that while they were awaiting a
response
from the first respondent to their applications, the
electricity supply to their residence was disconnected without notice
or any
form of hearing.
[5]
The fourth applicant contends that it is acting on behalf of the
Maydene
Farm Extension dwellers, and seeks for a future preventive
interdict against any disconnections of electricity by the
municipality
in their Maydene Farm Extension area. Mr Siyabonga
Mbangata states that he is authorised to depose to a confirmatory
affidavit
on behalf of the residents. There are no resolutions and
minutes of a meeting held by the Maydene Farm Extension residents.
[6]
The respondents did not initially deliver opposing papers prior to
the
hearing of the interim relief. The respondents have subsequently
delivered such papers consequent to the grant of the interim relief.
[7]
I am advised by counsel for the respondents that, at the hearing of
the
interim relief, the respondents made submissions on points of law
pertaining to urgency in resisting the grant of interim relief.
[8]
Following the hearing of submissions regarding the granting or
otherwise
of the interim relief, the court on 12 April 2022, granted
the following order:
‘
(1)
that leave is granted to the applicants to bring this application by
way of urgency in accordance
with the provisions of Uniform Rule
6(12);
(2)
that a rule nisi do hereby issued calling upon the first and second
respondents to
show cause, if any, on
Tuesday
, the
26
th
day of
April 2022
, why the following orders may not be
made final:
2.1
that the applicant’s non-compliance within 72 hours’
notice as prescribed in
section 35 of the General Law Amendment Act
63 of 1955 as amended be condoned.
2.2
that the electricity disconnection in the following house numbers
2[…]
Maydene Farm belonging to first applicant, house
number
2[…]
Maydene Farm belonging to second applicant
and house number
2[…]
belonging to third applicant be
and hereby declared unlawful, illegal and unconstitutional.
2.3
that the respondents be and are hereby interdicted from further
disconnecting electricity
supply unlawful to the fourth applicant.
2.4
That the respondent be directed to reconnect the electricity supply
to the applicants forthwith.
2.5
That the respondent and anyone acting in his stead or employee be and
hereby restrained
and prohibited from further disconnecting and or
interfering unlawfully with applicants’ electricity supply to
the aforesaid
premises other than by due process of law.
2.6
That the first, second and third respondents are ordered to pay costs
of this application
the one paying the other to be absolved.’
[9]
Paragraphs 2.3, 2.4 and 2.5 operate as interim relief with immediate
effect
pending the finalisation of this application. The confirmation
of this interim relief is opposed.
[10]
In summary, the respondents’ grounds of opposition are as
follows.
[11]
First, the fourth applicant is not a legal person and thus has no
locus standi
to institute these proceedings.
[12]
Second, the fourth applicant has failed to make out a case on any
relief and that the deponent
is not authorised by the Maydene Farm
Extension dwellers.
[13]
Third, the applicants did not apply for an indigent subsidy prior to
launch of the application
as their applications were never received
by the respondents and that, even if the applicants had applied,
until approval was granted,
they were not entitled to the indigent
benefits.
[14]
Fourth, the applicants were issued with termination notices prior to
the electricity being
disconnected and such notices were in terms of
the Municipal Credit Control and Debt Policy of 2021/2022.
[15]
Fifth, the meter boxes in the homes of the applicants were tampered
with in violation of
the
Electrical Installation Regulations
promulgated
under the Occupation Health and Safety Act 85 of 1993.
[16]
Finally, the respondents contend that their actions were lawful in
disconnecting the electricity
supply of the applicants.
[17]
The court must resolve the questions:
17.1
Whether the fourth applicant has
locus standi
to institute
these proceedings;
17.2
Whether the respondents’ conduct in disconnecting the
electricity supply was lawful;
17.3
Whether the applicants have made out a case for the grant of the
final relief; and
17.4
The issue of costs.
Background
[18]
The first applicant is the main deponent to the founding affidavit
and he has alleged that
he is authorised to depose on behalf of all
the other applicants who are residents of Maydene Farm Extension.
[19]
The applicants complain that on 10 March 2022, the first, second and
third respondents
caused a shutdown of electricity supply to the
applicants’ respective homes and other residents of Maydene
Farm Extension.
Prior to the shutdown of electricity supply, the
applicants allege that they were never served with notices informing
them about
the first respondent’s intention to disconnect the
electricity supply.
[20]
The applicants impugn the conduct of the respondents on the basis
that they had applied
for indigent subsidy in accordance with the
policy of the first respondent and that the first respondent did not
respond to the
applications. Based on the submission of such
applications, the first respondent was not entitled to disconnect the
electricity
until a decision was made. Under the circumstances, the
applicants complained that their constitutional rights to basic
services
had been infringed by the conduct of the respondents.
[21]
In summary, the applicants’ case is that the respondents
disconnected the electricity
supply without affording them a hearing
as there was no notice prior to the act of disconnection of
electricity. The applicants
had submitted applications for an
indigent subsidy and the first respondent never responded to those
applications. The applicants
allege that, in bringing these
proceedings, they are asserting their constitutional right to basic
services and that the first
respondent has a constitutional
obligation to provide the basic services to local communities.
[22]
The respondents denied these allegations and contended that the
actions of the first respondent
was lawful and in accordance with the
policies of the municipality.
[23]
The respondents provided reasons for the disconnection of the
electricity supply for each
of the applicants.
[24]
In respect of the first applicant, the respondents contend that the
disconnection was as
a result of the first applicant tampering with
the meter box and that the disconnection was carried out in terms of
clause 19(2)
and (3) of the first respondent’s credit control
and debt collection policy of 2021/2022:
24.1
In this regard consumers, including where the first applicant
resides, purchase electricity on
a pre-paid basis. The mechanism of a
pre-paid meter is that each meter has an identification number and
the consumer is issued
with a card bearing a number that entitles him
or her to purchase electricity. When the consumers purchase
electricity from various
outlets, the receipt for payment has a
numerical code that must be entered into the meter in order to
activate the electricity
supply. The first respondent uses a system
known as contour technology to track and record all transactions on
the meters of consumers.
Contour technology enables the first
respondent to know when electricity for a specific meter was
purchased and for how much.
24.2
The first applicant’s meter number is 07[…]. According
to contour technology, the
first applicant last bought a loaded
pre-paid electricity for his meter on 10 October 2018.The transaction
was for a sum of R20.
Based on this, the first respondent
authorised its service provider, Khanyo Electrical Contractors to
conduct an inspection at
the first applicant’s residence.
There was a suspicion that the meter was tampered with. Mr Luyanda
Mabandla, is an
inspector in terms of the Electrical Installations
Regulations promulgated under the
Occupational Health and Safety Act
85 of 1993
and he conducted the inspection on behalf of Khanyo
Electrical Contractors.
24.3
During the inspection, Mr Mabandla discovered that the first
applicant’s meter box was
indeed tampered with and that there
was an illegal diversion and supply of electricity to the first
applicant’s residence.
Upon such inspection, he then concluded
that the illegal connection of electricity was a danger to the first
applicant’s
family and neighbouring residents, as the illegal
connection could potentially cause a fire which could break out
without any warning
due to the tampering of the electrical wiring.
24.4
Mr Mabandla, determined that the first applicant’s meter box
was defective and that defect
constituted an immediate danger to
persons. As a result, the electricity supply to the first applicant’s
residence was immediately
disconnected.
24.5
On 21 January 2022, the first respondent received a report that the
first applicant has
personally reconnected the supply of
electricity to his property. Mr Mabandla, visited the first
applicant’s residence and
established that the first applicant
had indeed reconnected the electricity supply. Mr Mabandla
disconnected the electricity
once again.
24.6
The respondents contend that the first applicant’s electricity
supply was disconnected
based on tampering with the meter boxes.
[25]
In respect of the second applicant, the respondents dispute that it
disconnected the second
applicant’s supply of electricity.
25.1
In this regard, the first respondent had received a complaint from
the ward councillor that the second applicant’s
meter box was
faulty and that the second applicant does not have electricity
supplied to his residence. On 6 April 2022,
the first
respondent dispatched its officials to attend to the complaint. An
inspection was conducted at the second applicant’s
residence and it was discovered that the meter box was faulty. The
second applicant was advised to apply for a replacement meter
box.
25.2
The second applicant applied for a replacement meter box. Based on
that application, the second applicant’s
meter box was then
replaced and the electricity was restored to his home.
[26]
In respect of the third applicant, the respondent contends that on
17 November 2021,
the third applicant was issued with a
final demand in respect of which the third applicant was required to
settle her arrears within
ten days, failing which debt enforcement
proceedings would be commenced with against her. The arrear amount
was R5 556.92.
26.1
In this regard, the final demand was hand delivered by Mr Muleki
Mhlongwe of Khanyo Electrical Contractors to the
third applicant. The
third applicant did not respond to the final demand notice.
26.2
On 19 January 2022, after the lapse of the ten days, the first
respondent issued the third applicant with a disconnection
notice in
terms of which the third applicant was called upon to settle her
arrears, within a period of 14 days. The disconnection
notice was
hand delivered to the third applicant by Mr Mhlongwe. There was
no response from the third applicant. The notice
contained a warning
that should the third applicant fail to settle her arrears, the third
applicants electricity supply would consequently
be disconnected
without further notice.
26.3
On 8 February 2022, and after the lapse of the 14 days’ period,
the first respondent disconnected the
electricity supply to the
third applicant’s residence. The respondents contend that the
disconnection was in terms of the
credit control and debt collection
policy and therefore justified.
[27]
In respect of the fourth applicant, the respondents contend that the
fourth applicant
is not a legal person and is not properly
before court. The respondents submitted that the confirmatory
affidavit by Siyabonga
Mbangata is unhelpful. The court’s
attention was drawn by the respondents to the allegations made by
Mr Mbangata in
which he says:
‘
I
am an adult male person residing at Maydene Farm house no 2[…]
duly authorised by all applicants and residents marked as
annexure
XM5 to depose to this confirmatory affidavit.’
[28]
The respondents submitted that annexure ‘XM5’ is a list
of names. There is
no resolution nor minutes to evidence proof of
authority for the existence of the fourth applicant.
[29]
On this basis, the respondents submitted that the residents of
Maydene Farm Extension,
as an association or a group, are not before
court, bearing in mind that the fourth applicant is not a
universitas
. In essence, the respondents submitted that there
is no evidence to substantiate the allegations that the residents of
Maydene
Farm Extension have authorised the institution of the
proceedings on their behalf or name.
Legal
framework
[30]
Section 152
of the Constitution sets out the objects of Local Government.
[1]
In terms of Section 152
(b)
and
(d)
,
the objects of Local Government are:
‘
(b)
To ensure the provision of services to communities in a sustainable
manner;
.
. .
(d)
To promote a safe and healthy environment.’
[31]
Electricity is one of the basic services that section 152(1)
(b)
of the Constitution demands from the municipality to provide to the
communities.
[32]
The safety and healthy environment referred to in section 152(1)
(d)
of the Constitution, includes an environment that is free from
dangerous illegal connections for the supply of electricity which
often cause dangerous power surges.
[33]
Section 152(2) of the Constitution provides that a municipality must
strive, within its
financial and administrative capacity, to achieve
the objects set out in subsection (1).
[34]
The Constitutional Court emphasized that the collection of charges
for electricity is an
imperative for Local Government to ensure that
it can provide services in a sustainable manner.
[35]
Services
may be disconnected to ensure the collection of arrears.
[2]
In
Mkontwana
v Nelson Mandela Metropolitan Municipality
,
[3]
the Constitutional Court held:
‘
The
basic reason for the accumulation of consumption charges due in
connection with any property occupied by non-owners is non-payment
by
those occupiers. However, it is ordinarily possible for both the
municipality and the owner to guard against an unreasonable
accumulation of outstanding consumption charges. The municipality has
a duty to send out regular accounts, develop a culture of
payment,
disconnect the supply of electricity and water in appropriate
circumstances, and take appropriate steps for the collection
of
amounts due. The owner’s ability to protect her own interest by
ensuring that consumption charges are kept within reasonable
limits,
depends to some extent on the nature of the relationship between her
and the occupier. If that occupier is on the property
with the
knowledge and consent of the owner, the latter can, among other
things, choose the occupier carefully and stipulate that
proof of
payment in relation to consumption charges be submitted monthly on
paying of some sanction including ejectment.’
[36]
Section 229 of the Constitution provides for municipal fiscal powers
and functions. Section
229(1) provides that – subject to
subsection (2), (3) and (4), a municipality may impose—
‘
(a)
rates on property and surcharges on fees for services provided by or
on behalf of the municipality;
and
(b)
if authorised by national legislation, other taxes, levies and duties
appropriate
to local government or to the category of local
government into which that municipality falls, but no municipality
may impose income
tax, value-added tax, general sales tax or customs
duty.’
[37]
Section 96
of the
Local Government: Municipal Systems Act 32 of 2000
[4]
provides for debt collection responsibility of the municipalities. In
terms of
section 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]
Section 97 provides for what must be the content of the policy.
‘
Contents
of policy
(1)
A credit control and debt collection policy must provide for—
(a)
credit control procedures and mechanisms;
(b)
debt collection procedures and mechanisms;
(c)
provision for indigent debtors that is consistent with its rates and
tariff policies
and any national policy on indigents;
(d)
realistic targets consistent with—
(i)
general recognised accounting practices and collection ratios; and
(ii)
the estimates of income set in the budget less an acceptable
provision for bad debts;
(e)
interest on arrears, where appropriate;
(f)
extensions of time for payment of accounts;
(g)
termination of services or the restriction of the provision of
services when payments are in arrears
;
(h)
matters relating to unauthorised consumption of services, theft
and damages
; and
(i)
any other matters that may be prescribed by regulation in terms of
section 104.
(2)
A credit control and debt collection policy may differentiate between
different categories
of ratepayers, users of services, debtors,
taxes, services, service standards and other matters as long as the
differentiation
does not amount to unfair discrimination.’
(Emphasis added.)
[39]
Regulation 7(7) of the Electrical Installations Regulations
promulgated under the
Occupational Health and Safety Act No 85 of
1993
reads—
‘
If
an inspector, an approved inspection authority for electrical
installations or supplier has accrued out an inspection or test
and
has detected any fault or defect in any electrical installation, that
inspector, approved inspection authority for electrical
installations
or supplier may require the suer or lessor of that electrical
installation to obtain a new certificate of compliance:
Provided that
if such fault or defect in the opinion of the inspector, approved
inspection authority for electrical installations
or supplier
constitutes an immediate danger to persons, that inspect, approved
inspection authority for electrical installations
or supplier shall
forthwith take steps to have the supply to the circuit in which the
fault or defect was detected, disconnected
. . .’
[40]
In compliance with the Constitution and the Systems Act, the first
respondent has adopted
a policy on credit control and debt
collection.
[41]
Clause 19(3) of the policy reads—
‘
(3)
If the customer fails to pay any account within a period of fourteen
(14) days after the
expiry of the due date, then—
(a)
without further notice, the municipality may disconnect or
discontinue the supply
of electricity to the immovable property in
question;
(b)
the chief financial officer or any duly authorised person may
instruct attorneys to
recover the outstanding amounts. . . .’
[42]
In terms of clause 19(8), of the credit control and debt collection
policy of the first
respondent, it is provided that:
‘
In
case of an indigent debtor, when the account of such indigent is
outstanding and his or her electricity supply has been disconnected
or discontinued, the chief financial officer or any person duly
authorised thereto may into an agreement in terms of which the
indigent debtor effects immediate payment of at least five percent
(5%) of the outstanding amount and pays the balance over a period
of
twenty-four months (24 months).’
[43]
The first respondent has adopted an indigent policy. Some of the
objectives of the policy
are to ensure the provision of basic
services to the community in a sustainable manner within the
financial and administrative
capacity of the council and to establish
a framework for the identification and management of indigent
households including a socio-economic
analysis and an exit strategy.
[44]
I turn to consider the parties’ submissions.
Discussion
Locus
standi of the fourth applicant
[45]
Mr
Ntikinca
, counsel for the respondents, has submitted that
the first question to be decided is the
locus standi
of the
fourth applicant in these proceedings. In this regard, Mr
Ntikinca
submitted that if the fourth applicant failed to establish
locus
standi
, then that must dispose the case of the fourth applicant
as he would have failed to establish a prima facie or any right to
the
relief sought. The fourth applicant is not an association nor a
body corporate. In addition to those challenges, there is no evidence
to show that there was a meeting of the residents at Maydene Farm
which was convened to launch the proceedings. The
locus standi
of the fourth applicant in the founding affidavit is set out as
follows:
‘
The
fourth applicant is Maydene Farm Extension residents who have
authorised
Siyabonga Mbangata
to depose confirmatory affidavit
herein these proceedings on behalf of the residents herein.’
(Emphasis added.)
[46]
Mr Siyabonga Mbangata has deposed to a confirmatory affidavit where
he makes the following
allegation:
‘
I
am an adult male person residing at Maydene Farm house no 2[…]
duly authorised by all applicants and residents marked as
annexure
XM5 to depose this confirmatory affidavit.’
[47]
This court considered annexure XM5. Annexure XM5 is a register dated
14 November 2021.
The register simply lists the names of
persons. There are no minutes nor resolutions. It is not apparent
from annexure XM5 that
the register has any link to the meeting by
the residents of Maydene Farm Extension. I am unable to accept the
annexure as proof
of authority for Mr Siyabonga Mbangata. On a proper
scrutiny, the averments made by Mr Mbangata in his confirmatory
affidavit,
do not support a conclusion that he had been authorised to
institute the proceedings on behalf of the Maydene Farm Extension
dwellers.
He merely asserts that he has been authorised to depose to
the confirmatory affidavit. This assertion is ill advised because a
witness does not need authority before he or she can depose to an
affidavit. The essence of the respondents’ challenge is
not
about authority to depose to affidavits, but it concerns the legal
standing of the fourth applicant. There was no answer to
the
respondents’ challenge of
locus standi
of the fourth
applicant.
[48]
I conclude in this regard that the fourth applicant has failed to
establish its legal standing
and accordingly, fails to make out a
case for the relief sought in the notice of motion on behalf of the
fourth applicant. The
relief sought by the fourth applicant was on
its own not legally competent. The fourth applicant was seeking for
an interdict against
the future disconnection of electricity supply
to the community of Maydene Farm Extension. I would not have granted
such a relief.
The municipality is empowered by legislation and its
policies to discontinue provision of services including electricity
in appropriate
circumstances of discharging its responsibilities
relevant to debt collection. It is inconceivable that a municipality
must be
interdicted against future disconnection of electricity, even
in circumstances where it would have acted lawfully in doing so. I
find the relief sought by the fourth applicant to be rather absurd.
The
lawfulness for the disconnection of the electricity
[49]
The
applicants are seeking final relief. A final order will only be
granted in motion proceedings if the facts as stated by the
respondents, together with the facts alleged by the applicants that
are admitted by the respondents, justify such order.
[5]
Mr
Mkhongozeli
,
counsel for the applicants, had difficulties in understanding this
principle, although he had urged this Court to determine the
application on papers irrespective of any factual disputes between
the parties. On application of the
Plascon Evans
rule, I
agree with the submissions of Mr
Mkhongozeli
and proceed to deal with the matter irrespective of any disputed
facts.
[50]
The first applicant’s property was inspected by Mr Mabandla, an
inspector envisaged
by regulations promulgated in terms of the
Occupational Health and Safety Act 85 of 1993
. The meter box in the
house of the first applicant was found to have been tampered with
twice. First in November 2021 and again
in January 2022. The
inspector, Mr Luyanda Mabandla, determined that there was an illegal
supply of electricity to the first applicant’s
property and
that illegal supply of electricity posed a danger to the first
applicant, his family and neighbouring residents. That
was the reason
for the disconnection of the electricity. I accept these facts by the
respondents.
[51]
The first respondent has an obligation, in terms of the Constitution,
to promote a safe
and healthy environment. This obligation includes
the duty to prevent illegal connections of electricity supply to
residences.
A safe environment includes one that is free from
dangerous illegal connections for the supply of electricity, which
often cause
dangerous power surges. The first respondent was entitled
to disconnect the electricity supply to the first applicant’s
residence
and that disconnection was in accordance with the
Constitution, the System’s Act and
regulation 7
of the
Electrical Installation Regulations. The
rights of the first
applicant were justifiably infringed, because he had acted unlawfully
and dishonestly. The first applicant
did not seriously challenge the
allegations of tampering, even in the replying affidavit. In fact,
the first applicant conceded
that he last bought electricity in
2018. All what the first applicant stated in reply is that:
‘
It
is true that I last bought electricity in 2018, but what is not
correct is the issue that I tampered with the meter box.’
[52]
The version of the respondents contains serious allegations which had
called for a reply
rather than bare denials and general statements.
[53]
The response of the first applicant was scanty in this regard, whilst
faced with serious
and scathing allegations from the respondents. The
entire case of the applicants was not easy to understand or follow.
The applicants’
case is not a model of pleadings. The first
impression about the first applicant’s case is that the
electricity supply to
his residence was terminated without notice and
later, this contention changed to the first applicant having applied
for an indigent
subsidy and that there was no response from the
respondents. No proof of the application for subsidy was submitted. I
therefore
reject the assertion that there was an application for an
indigent subsidy. For the sake of completeness, I do point out that,
even if there was such an application for an indigent subsidy, the
first applicant would still be prohibited from illegally connecting
the electricity supply. In this case, the first applicant’s
electricity supply was disconnected because of the illegal connection
of electricity and tampering with the meter box. Clause 30 of the
policy makes it an offence for any person who:
‘
(d)
tampers with or breaks any seal on a meter or any equipment belonging
to the municipality,
or causes a meter not to register properly the
service used . . . And upon conviction such person would be liable
for a fine not
exceeding R60 000 or to imprisonment for a period
not exceeding 12 (twelve) months, or both.’
[54]
The offence committed by the first applicant is indeed serious and
the first applicant
would not even have benefitted from the
indigent subsidy, and if it was already given, in terms of the
policy, the subsidy would
have been withdrawn under these
circumstances. That is a provision of the policy. This is the extent
to which the offence of tampering
with meter boxes is viewed by the
first respondent.
[55]
Regarding the disconnection to the second applicant, there is no
evidence of electricity
disconnection to his house. The evidence is
that the ward councillor reported to the first respondent that the
second applicant’s
meter box was faulty. An inspection was
conducted on 6 April 2022 and the faulty meter box was replaced. The
second applicant did
sign an application form for the replacement of
a meter box. I have considered the application form of the second
applicant which
was attached to the respondents’ papers. The
identity number of the second applicant is reflected in his
application for
a new meter box with other details that include his
cellphone. It is improbable and inherently false that the first
respondent
would, within two days of replacing the meter box that was
faulty, disconnect the electricity supply in the manner suggested by
the second applicant. I say within two days because the application
was launched on 8 April 2022 which is within two days of 6
April
2022. I am satisfied by the version of the respondents that the
second applicant’s electricity was never disconnected.
There is
overwhelming evidence to support the version of the respondents. The
relief sought by the second applicant lacks merit.
[56]
In respect of the third applicant, the evidence is that a final
demand in terms of which
the third applicant was required to settle
her arrears within ten days, was served on her on 17 November 2021 by
an employee of
the first respondent. The final demand was received by
the third applicant personally. Again, a disconnection notice was
served
on her on 19 January 2022. In terms of the disconnection
notice, the third applicant was in arrears for an amount of
R5 556.92
and she was required to settle the arrears within 14
days, failing which the electricity supply to her house would be
disconnected
without any further notice.
[57]
The electricity supply to the house of the third applicant was
disconnected after the lapse
of 14 days in accordance with the
disconnection notice. In disconnecting the electricity supply, the
respondents relied on the
credit and debt collection policy. Clause
19(2) and (3) entitles the first respondent to disconnect the
electricity once the clauses
have been complied with. According to
sub-clause (3)
(a)—
‘
If
the customer fails to pay any account within fourteen (14) days after
the expiry of the due date, then – without further
notice, the
municipality may disconnect or discontinue the supply of electricity
to the immovable property in question . . .’
[58]
The third applicant had simply not denied the service of the
disconnection notice in her
replying affidavit. The applicants’
replying affidavit has been deposed to by the first applicant and in
response to the
detailed allegations regarding the service of the
notice to the third applicant, there is no response. The third
applicant merely
files a confirmatory affidavit in which she fails to
dispute the allegations that she was served with a notice prior to
disconnection.
This Court must accept the version of the respondents.
[59]
In light of the respondents’ compliance with the credit control
and debt collection
policy regarding service of notice in terms of
clause 19(2) and (3), the disconnection of the electricity to the
residence of the
third applicant was lawful.
[60]
In all the instances, the respondents had lawfully disconnected the
electricity supply
to the residence of the first and third applicants
and there was never any disconnection of electricity supply to the
house of
the second applicant. The evidence is overwhelming in each
regard as I have set out.
[61]
The applicants’ reliance on indigent subsidy policy is
misplaced and cannot aid the
case of the applicants. The remedies
based on indigent policy are only available to persons whose
applications in terms of the
policy have been approved. None of the
applicants have demonstrated that they were the beneficiaries of the
indigent policy when
the electricity supply was disconnected. The
submissions of Mr
Mkhongozeli
, counsel for the applicants,
that once a person has submitted an application, he or she
automatically qualifies for the subsidy,
has no merit. The submission
was simply a misguided one, which I accordingly reject.
[62]
Under these circumstances, I find that the applicants have not made
out a case for the
grant of the final relief and confirmation of the
rule
nisi
issued on 12 April 2022 and therefore, the
application should fail.
Costs
[63]
My initial
view was that the applicants were genuinely asserting and raising
important Constitutional issues relating to the municipality’s
obligation to provide basic services to communities. I had held a
prima facie view that the principles regarding costs in public
litigation as set out in
Harrierlall
v University of KwaZulu Natal
[6]
and
Affordable
Medicines Trust & Others v Minister of Health and Others
[7]
and
Biowatch
,
were applicable. On a proper scrutiny of the papers, it became clear
to me that the application was an abuse of court process.
The
applicants’ case had been premised on concoctions. The
applicants have been dishonest and disingenuous in many respects.
They were never entitled to any relief. This Court must send a clear
message that litigants who approach courts must act in good
faith and
be
bona
fide
in
advancing their litigation. The applicants in these proceedings
failed to meet that minimum requirement.
[64]
In the circumstances of this case, costs should be awarded even if
the matter, on its face
value, is a public litigation. I will
therefore award costs against the applicants.
Conclusion
[65]
For all the reasons, the applicants’ application must fail and
the rule
nisi
granted on 12 April 2022 must be discharged with
costs. For the reasons that Mr Siyabonga Mbangata had not purported
to act for
the non-existent fourth applicant, but merely confirmed
his authority to depose to the confirmatory affidavit, I will not
order
costs against him in person, although I must send a warning
that had he purported to institute the proceedings on behalf of the
residents in these circumstances, he would have been also liable for
costs.
Order
[66]
In the results, I make the following order:
(1)
The rule
nisi
issued on 12 April 2022 is discharged;
(2)
The applicants’ application is dismissed; and
(3)
The first, second and third applicants shall pay the costs of the
application, including
all costs reserved and the costs of 12 April
2022, such costs to be paid jointly and severally, the one paying the
others to be
absolved.
_______________________
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Attorneys
for the applicants
:
H N
Mkhongozeli Attorneys
55
Nelson Mandela Drive
Barbara’s
Guest House
Block
E, Unit: 6
Mthatha
Counsel
for the respondents
:
L
Ntikinca
together with
T Bikitsha
Attorneys
for the respondents
T Luzipho Attorneys
26
Cnr Victoria & Madeira Streets
First
Floor – Steve Motors Building
Mthatha
[1]
The Constitution of the Republic of South Africa, Act 108 of 1996.
[2]
Deidre
Leanda Darries and Others v City of Johannesburg and Others
[2009]
ZAGPJHC 6;
2009 (5) SA 284
(GSJ);
[2009] 3 All SA 277
(GSJ) para 19.
[3]
Mkontwana
v Nelson Mandela Metropolitan Municipality
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) para 47.
[4]
The Systems Act.
[5]
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634, see Erasmus and Van Loggerenberg
Superior
Court Practice
(2) 2 ed (2016) at D1-70, notes under Uniform rule 6(5)
(g)
.
[6]
Harrierlall
v University of KwaZulu Natal
[2017] ZACC 38
;
2018 (1) BCLR 12
(CC).
[7]
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005]
ZACC 3
; 2006(3) SA 247 (CC)
[2005] ZACC 3
; ;
2005 (6) BCLR 529
(CC) para 138;
Biowatch
v Registrar Genetic Resourc
es
and Others
(CCT 80/08)
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).