Mxotwa v The Municipal Manager, King Sabata Dalindyebo Local Municipality and Another (2193/2021) [2021] ZAECMHC 20 (27 May 2021)

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[2021] ZAECMHC 20
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Mxotwa v The Municipal Manager, King Sabata Dalindyebo Local Municipality and Another (2193/2021) [2021] ZAECMHC 20 (27 May 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO.: 2193/2021
In
the matter between:
NONKULULEKO
MXOTWA
Applicant
and
THE
MUNICIPAL MANAGER,
KING
SABATA DALINDYEBO
LOCAL
MUNICIPALITY
First Respondent
KING
SABATA DALINDYEBO
LOCAL
MUNICIPALITY
Second Respondent
JUDGEMENT
RUSI
AJ:
[1]
This is an application concerning the disconnection by the
Respondents of the electricity supply to the
Applicant’s place of
residence on 18 May 2021.  The Applicant sought relief in the
following terms:
1.
That the application be heard as a matter of urgency and that the
non-compliance
with the rules pertaining to form and service be
condoned.
2.
That a rule
nisi
be issued, returnable on 25 May 2021, calling
upon the Respondents to show cause, if any, why the following orders
should not be
made final:
2.1
that the Respondents be ordered to reconnect the electricity supply
to the Applicant’s premises
at 8 Mnukwana Street, Ikwezi Township,
Mthatha (“the affected premises”) within 2 hours of the Order
being granted;
2.2
that the Respondents be prohibited from disconnecting the electricity
supply to the affected premises,
or from disrupting the supply of
electricity for reasons pertaining to arrears allegedly owed with
regards to the relevant electricity
account, until such time as the
dispute lodged by the Applicant, and/or proceedings of statement and
debatement of account, to be
lodged within 30 days of the dispute not
being resolved, are finalized; and
2.3
that in the event of the Respondents failing to reconnect the
electricity supply to the affected
premises, the Applicant be
entitled to appoint an independent contractor to perform such
reconnection, and that the Respondents be
responsible for the cost
thereof.
3.
That paragraphs 2.1, 2.2 and 2.3 shall operate as interim relief
pending the finalization of the
application.
[2]
The application was initially opposed by the Respondents on the basis
that no case was made out for the
hearing of the matter as a matter
of urgency.  After hearing both Counsel, this Court granted an
order sought in prayers 1,
2 and 3 above.  The rule
nisi
was
returnable on 21 May 2021.
[3]
On the return date the issue of the reconnection of the electricity
supply to the affected premises had
become academic.
The
issues
The
remaining issues for determination by this Court are:
[3.1]
Whether the Respondents acted lawfully in terms of the
relevant legislative provisions when they disconnected electricity
supply to the Applicant’s premises.
[3.2]
Whether there is any dispute pending, as envisaged in section
102(2) of the Municipal Systems Act
[1]
(“the
Systems Act”), regarding any amount of money charged by the
Respondents for municipal services and rates in respect of the
affected premises.
[3.3]
Whether the provisions of section 129 of the National Credit
Act
[2]
(“the National
Credit Act”) apply to the utility agreement in respect of the
affected premises.
[3.4]
Whether a final interdict should be issued prohibiting the
Respondents from disconnecting the electricity supply to the
affected
premises, or from disrupting the supply of electricity for reasons
pertaining to arrears allegedly owed, until such time
as the dispute
lodged by the Applicant, and/or proceedings for statement and
debatement of account, to be lodged within 30 days of
the dispute not
being resolved, are finalized.
Common
Cause facts
[4]
The facts which are common cause between the parties or not disputed
are that when this application was instituted the Applicant
was
residing at the affected premises with her three minor children.  The
person with whom the Second Respondent has an agreement
to supply
municipal services is the Applicant’s ex-husband (“the owner”).
Monthly statements of account for municipal
services and rates
(“the rates account”) are issued to the owner of the affected
premises.  The rates account in respect
of the affected premises
is in arrears, and the disconnection of electricity supply to the
affected premises was the result of the
unpaid arrears. The owner
made payment to the Second Respondent of R8 000-00 on 19 September
2019 and R2 000-00 on 31 August
2019 respectively, towards the
municipal rates account in respect of the affected premises. The
payment of R8 000-00 (“the
suspended payment”) was not
immediately allocated to the owner’s account as a credit, owing to
the absence of proper account
reference on the payment made.
[5]
On 29 September 2021, the owner wrote a letter to the Respondents
enquiring about the suspended payment.
He requested a payment
plan to liquidate the arrear amount; and further requested verified
and accurate billing of his rates account.
The Respondents did
not respond to that letter.
[6]
On 21 April 2021 the Applicant’s electricity account was blocked by
the Respondents, preventing her
from purchasing electricity. This
lead to the Applicant visiting the Respondents’ offices to make
enquiries about the blockage.
She was attended to by Ms
Madzidzela to whom the Applicant made reference to the suspended
amount, and the fact that the Second Respondent’s
billing was
inconsistent, or inaccurate as shown in the monthly rates account
statements and transaction history provided in respect
of the
affected premises. When no resolution was reached on the query raised
by the Applicant, she sought the intervention of her
erstwhile
Attorneys. The Applicant’s erstwhile Attorneys wrote correspondence
to the First Respondent, dated 21 and 22 April 2021,
respectively.
This was followed by the unblocking of the Applicant’s electricity
account on 22 April 2021, and the allocation
of the suspended amount
on the 23
April 2021, as credit to the owner’s rates
account.
[7]
On 24 April 2021, the Respondents issued a final demand in respect of
the rates account addressed to the owner of the affected
premised.
The final demand purports to be in terms of section 129 of the
National Credit Act as the utility agreement is an
incidental credit
agreement.  It draws the attention of the its addressee to
several alternative dispute resolution mechanisms,
including making
payment arrangements the Second Respondent’s offices. It also warns
the addressee that disconnection of electricity
supply,
inter
alia
, could be effected should the addressee not exercise any of
the options set out in the final demand within ten (10) business days
from the date of delivery of the notice.  Proof of service of
that letter was not attached to the answering affidavits, save
for
copies or printouts of electronic mail dated 3 May 2021, sent by the
Respondents to an electronic mail address of the Applicant’s
erstwhile attorneys.
[8]
On 18 May 2021 the Respondents disconnected the supply of electricity
to the affected premises in terms
of a disconnection order issued by
the First Respondent on the same date. When the Applicant became
aware of the disconnection, she
went to the Respondents’ offices to
query the disconnection.  She also persisted with her query or
complaint regarding the
inaccurate rates billing.  When the
Applicant did not receive a satisfactory response to her query
regarding the disconnection
and her complaint regarding the
inaccurate rates
billing,
she approached this court.
The
Application to strike out
[9]
Respondents raised and objection to alleged new evidence that was
raised by Applicant in her replying
affidavit. The test and grounds
on which an application to strike out certain averments in an
affidavit are set out in Rule 6(15).
Those grounds include new matter
alleged in a replying affidavit. The Second Respondent, in its
answering affidavit deposed to by
Ms Madzidzela, challenges the
Applicant’s authority to enquire on any rates dispute that the
owner of the affected premises allegedly
lodged with the First
Respondent. The letter from the owner dated 29 September 2020, says
Ms Madzidzela, does not declare a dispute
with the First Respondent.
Ms Madzidzela further alleges that the request made in the letter
from the owner, for verified rates billing
was for the benefit of the
owner of the affected premises, not the Applicant. On Ms Madzidzela’s
version the Applicant never sought
any explanation from the Second
Respondent.
[10]
The Applicant, continues Ms Madzidzela, failed to allege in her
founding affidavit what rates calculations were not
correctly
explained to her; and what the disagreement was about. It is further
alleged by Ms Madzidzela that the only dispute that
existed was in
regard to the suspended payment. According to Ms Madzidzela, once
this issue regarding the suspended payment of R8 000-00
was
resolved as admitted by the Applicant in her founding affidavit, no
dispute was lodged by the Applicant on any amount of municipal
services and rates charged by the Second Respondent in respect of the
affected premises.
[11]
Regarding the difference between the monthly rates statements of
account and the transaction history generated by
the Second
Respondent, it is alleged by Ms Madzidzela that the latter
incorporates municipal services and rates charges for the months
ahead in the financial year. On the score of delivery of the
disconnection notice dated 23
April 2021 to the
Applicant’s erstwhile Attorneys by electronic mail, Ms Madzidzela
alleges that this was done because “
the second respondent was
introduced to the applicant’s erstwhile attorneys by the applicant.
It cannot now lie in the mouth of
the applicant that the respondent
was not supposed to communicate with her through those attorneys,
when at no stage did she tell
the respondent that they are no longer
involved in issues concerning the failure to service the rates
account for the property”
(sic).
[12]
In the paragraphs sought to be struck out from the Applicant’s
replying affidavit, the Applicant alleges that:
[12.1]
the dispute regarding the rates account arose years ago, and the
letter written by the owner of the affected premises, dated
29
September 2020, was a continuation of the same dispute.
[12.2]
Ms Madzidzela, with whom she spoke about the rates account on 21
st
April 2021 printed a transaction history, but failed on that day to
explain the difference between the rates amounts reflected in
the
monthly statements and those in the transaction history.
[12.3]
her erstwhile Attorney’s mandate was specifically to negotiate with
the Respondents and resolve the issue pertaining the
blocked
electricity account. Once this was resolved, there was no further
mandate given to her erstwhile Attorneys regarding any
other matter.
[12.4]
at no stage did she allege that she was enquiring about the rates
dispute on behalf of the owner of the affected premises.
She did
however, obtain information from the owner of the affected premises
regarding what transpired when the owner raised the rates
dispute in
the letter dated 29
September 2020. The owner forwarded
the letter to her by electronic mail.
[13]
In so far as the contention that the replying affidavit
contains new evidence, it is my view that what is sought to be
struck
out from is not new evidence, but a response to what is alleged in
the Respondents’ opposing affidavits. I do not understand
how else
the Applicant should have dealt with those allegations, if not in her
Replying affidavit. By contrast the Second Respondent’s
answering
affidavit seeks to attack the credibility of the Applicant by
referring to her as “
being disingenuous”
.
[14]
Therefore, I am not satisfied that the Respondents would be
prejudiced in their case if the affected paragraphs of
Applicant’s
replying affidavit are not struck out. Respondents’ application to
strike out falls to be dismissed.
The
Applicant’s contentions
[15]
The Applicant contends that the disconnection of the electricity
supply was unlawful in that she was not served with
a notice prior to
the disconnection.  She only received the final demand dated 23
April 2021 from her erstwhile attorneys on
13 May 2021.  The
disconnection order was sent to her by electronic mail from her
erstwhile attorneys on 18 May 2021.  The
Applicant contends that
in light of the pending dispute that the owner lodged with the
Respondents, the Respondents are prohibited
from disconnecting the
supply of electricity to her premises until the dispute is resolved.
For that submission counsel for
Applicant relied on the
provisions of section 102 (2) of the Municipal Systems Act which
provide that termination of municipal services
cannot be effected
where there is a dispute between the municipality and the rates payer
concerning any specific amount claimed by
the municipality from the
rates payer.
The
Respondents’ contentions
[16]
The Respondents contend that, because the agreement to supply
electricity to the affected premises is with the owner,
the Applicant
has no right to challenge or query the Second Respondent’s billing
in respect of rates charged on the affected premises,
and therefore
the Applicant has not established a clear right entitling her to the
relief sought.   On this score the Respondents
contend that
the billing is accurate, in spite of the differing amounts as they
appear on the monthly rates account statement and
on the transaction
history. According to the Respondents the difference between the
amounts as they appear on the monthly account
statements issued to
the owner, and the transaction history is that the latter
incorporates amounts of rates for months ahead in
the entire
financial year.
[17]
It is the Respondents’ submission further, that the only aspect in
respect of which the Applicant was entitled
to make enquiries was the
issue of the suspended payment of R8 000-00. According to the
Respondents, after this amount was properly
allocated on 23 April
2021 to the owner’s rates account as a credit, there was no dispute
regarding the amounts of rates charged.
The Respondents contend that
when the Applicant failed or neglected to respond to the final demand
issued as aforementioned, they
were entitled to disconnect the
electricity supply to the affected premises.
[18]
The Respondents further deny that section 129 of the National Credit
Act in terms of which the final demand purports to be issued,
applies
to the issue of adequate notice prior to the disconnection. The
Respondents submitted in the same vein, that in the event
this Court
finds that section 129 of the National Credit Act does in fact apply
to the issue of adequate notice to the occupier;
and that the notice
issued on 23 April 2021 does not comply with the provisions of this
section, this Court should find that the
Applicant was none the less
given adequate notice, and ample opportunity to make payment
arrangements with the Respondents.
Legislative
framework
[19]
Section 152(1)  of the Constitution provides
inter
alia
that
the objects of local government is to ensure the provision of
services to communities in a sustainable manner; and to promote
a
safe and healthy environment
[3]
.
In
Merafong
Demarcation Forum and Others v President of the Republic of South
Africa and others
[4]
the court said:
“
Municipalities
form an important component of our constitutional scheme of
government. They are closer to the community and they constitute
the
first line of delivery of services. Indeed one of the objects of
local government is ‘to ensure the provision of services to
communities in a sustainable manner”.
[20]
Section 96 of the Systems Act provides that the municipality must
collect all the money that is due and payable to it for
municipal
services; and to adopt, maintain and implement a credit control and
debt collection policy which complies with the provisions
of the
Systems Act. It is important to note that the Systems Act is
peremptory regarding the content of a municipality’s credit
control
and debt collection policy.  Section 97 of the same Act provides
as follows:
“
97.
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 budge it 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.”
[21]
On the issue whether there is a dispute as envisaged in section
102(2) of the Systems Act, Maya JA (as she then was), said
the
following in
Body
Corporate Croftdene Mall v Ethekwini Municipality
[5]
:
[22]
It is, in my view, of importance that section 102 (2) of the Systems
Act requires that the dispute must
relate to a “specific amount”
claimed by the municipality. Quite obviously, its objective must be
to prevent a ratepayer from
delaying of an account by raising a
dispute in general terms. The ratepayer is required to furnish facts
that would adequately enable
the municipality to ascertain or
identify the disputed item or items and the basis of the ratepayer’s
objection thereto. If an
item is properly identified and a dispute
properly raised, debt collection and credit control measures could
not be implemented in
regard to that item because of the provisions
of this section. But the measures could be implemented in regard to
the balance in
arrears, and they could be implemented in respect of
the entire amount if an item is not properly identified and a dispute
is not
properly raised.
[23]
Whether a dispute has been properly raised must be a factual inquiry
requiring determination on a case-by-case
basis.
[22]
During the hearing, this Court was referred by counsel for the
Respondents to the Second Respondent’s Credit control
and Debt
Collection Policy (‘the policy”) for the financial year
2020-2021, created in terms of the Systems Act. Pertinent to
the
determination of issues in the present application are clauses 2, 18,
19, and 20 of the policy.
[23]
There is no doubt that the act of disconnection of electricity supply
to the affected premises is an administrative action as
defined in
section 1 of the PAJA
[6]
, and
that the Applicant is entitled to procedural fairness before the
taking  of a decision that would materially and adversely
affect
her right to receive basic municipal service in the form of the
supply of electricity.  However, the application before
this
Court is not for the judicial review of the decision taken by the
Respondents.  This fact notwithstanding, the principle
of
procedural fairness in so far as it relates to the alleged failure to
give adequate notice of intention to disconnect electricity
supply
will be applied by this Court within the purview of the Second
Respondent’s policy.
[24]
It must be added that clause 19 (2) of the Second Respondent’s
policy provides that the municipality must permit the
customer to
make representations prior to the disconnection or discontinuation of
the supply of electricity, unless other users will
be prejudiced; or
there is an emergency situation; or the customer has interfered with
the disconnection. None of these exceptions
find application
in
casu
. According to clause 20(2) of the policy, any disconnection
or discontinuation of the electricity supply shall be effected
subject
to the requirements contained in clause 19(2)
inter alia.
The
final letter of demand
[25]
The Applicant does not deny that she eventually received the final
demand from her erstwhile attorneys on 13 May
2021. The Respondents,
on the other hand, cannot deny that the Applicant only received the
final demand on 13 May 2021.
Among the copies of
emails annexed to the answering affidavit, there is no proof of the
day and time when the email sent to the Applicant’s
erstwhile
attorney containing the final demand was actually received by them.
There is also no proof of service of the final demand
on an adult
person at the affected premises.  This is important in light of
the fact that the final demand, as mentioned elsewhere
in this
judgment, purports to be in terms of section 129 of the National
Credit Act.  It is trite that in terms of the National
Credit
Act a utility agreement is an incidental credit agreement if any fee
or interest is charged on any amount that is not paid
on the due
date. Therefore, a notice sent in the circumstances of the present
case would have to comply with the letter of section
129 of the
National Credit Act.
[26]
The requirements of service of the notice in terms of section 129(1)
of the National Credit Act are as provided by sub-sections
5, 6 and 7
the National Credit Act as inserted by the Amendment Act. The three
sub-sections of section 129 provide as follows:
(5)  The notice
contemplated in subsection (1)(a)
must
be delivered to
the consumer— (a) by registered mail; or (b) to an adult person at
the location designated by the consumer.
(6)
The
consumer must
in writing indicate the preferred manner of
delivery contemplated in subsection (5).
(7)
Proof of delivery contemplated in subsection (5)
is
satisfied by
— (a) written
confirmation by the postal service or its authorised agent, of
delivery to the relevant post office or postal agency;
or (b) the
signature or identifying mark of the recipient contemplated in
subsection (5)(b).
(emphasis added).
[27]
The final demand dated 23 April 2021 falls short
of these requirements.  It cannot be that while the Respondents
issued the notice
in terms of section 129 of the National Credit Act,
they have a discretion in regard to the manner in which that final
demand must
be served. The above quoted provisions of section 129 are
peremptory.  If the Respondents had that discretion, then the
amendment
to section 129 of the National Credit Act is rendered
superfluous.
The
dispute in respect of the amounts of rates claimed
[28]
The letter dated 29 September 2020 that the owner sent to the
Respondents sets out the following:
1. The rates
statement as at the time of the letter reflected that the amount of
arrears outstanding was R32 000-00, and the
last payment by
owner was in 2017.
2. There were
suspended payments made by the owner totaling R10 000-00. Had
these payments been allocated timeously as credit
to the rates
account of the affected premises, the owner’s debt would be
drastically reduced.
3. A request for
a payment plan to liquidate the arrear amount; and a further request
for correct and verified billing for the ratepayer
to understand the
correct amount due and payable in respect of rates.
[29]
An amount of R8 000-00 that was paid by the owner on 19 September
2019, was suspended by the Respondents owing to the absence
of a
proper account reference number.  The Respondents charge
interest on any arrear amount owed to it by rate payers.  In
the
present case it cannot be without significance that the   amount
of R8 000-00 was not allocated in time as a credit
in the rates
account of the affected premises.  That amount was allocated as
such nineteen months after it was paid by the owner.
It is
axiomatic that had the debt owing been reduced by this amount
immediately upon its payment, this would have had an effect
on the
amount of interest to be charged on the amount owing.  In the
absence of a clear explanation by the Respondents regarding
the
Applicant’s complaint regarding inaccurate or inconsistent billing,
the Second Respondent’s contention that its billing is
accurate, is
subject to doubt.
[30]
In the two letters written by the Applicant’s erstwhile
Attorneys dated 21 and 22 April 2021 respectively, the query
raised
on behalf of the Applicant was,
inter alia
, inaccurate billing
by the Second Respondent. The Respondents replied to the letter dated
21 April 2021, giving a specific amount
that the Applicant owed as at
the time of their response. In the letter dated 22 April 2021, the
Applicant’s Attorneys drew the
attention of the Second Respondent
to the fact that the arrear amount given in their response was
different from the amount reflected
in transaction history. The
Respondents did not respond to this letter.
[31]
It was submitted on behalf of the Respondents that nowhere does it
appear in any of the already mentioned letters or correspondence
where the Applicant lodged a dispute for the purposes of section 102
(2) of the Systems Act.  In
Body Corporate Croftdene Mall
,
the court said the following regarding the term “dispute”:
[21] Neither the
Systems Act nor the policy defines the term “dispute”. Some of
the definitions ascribed to it include ‘controversy,
disagreement,
difference of opinion’, etc. This court had occasion to interpret
the word in
Frank
R Thorold (Pty) Ltd v Estate  Late Beit
[7]
and said that there mere claim by one party, that something is or
ought to have been the position does not amount to a dispute: there
must exist two or more parties who are in controversy with each other
in the sense that they are advancing irreconcilable contentions.
[32]
As with the case of the Respondent in
Body Corporate
Croftdene Mall
, the definitions clause of the policy
in casu
makes no provision for the word “dispute”. What is however
evident is that Ms Madzidzela and the Applicant maintain different
contentions on the correctness or otherwise, of the amounts set out
in the monthly rates account statements issued and the amounts
reflected in the transaction history before and post the correct
allocation of the previously suspended R8 000-00.
[33]
The Respondents’ explanation regarding the difference between the
amounts reflected in monthly account statements on the one
hand, and
the transaction history on the other, is that the latter includes
amounts to be charged in the months ahead. In my view
this
explanation is irreconcilable with the fact that on the specific
dates of the monthly accounts statements, the amounts reflected
for
those same months are different on the transaction history.
What is particularly disconcerting, is the fact that the letter
dated
29 September 2020 was never responded to by the Respondent. This is
in direct contrast with clause 18 (5) of the Second Respondent’s
policy which provides that the municipality will respond to all
inquiries in writing within twenty days from the lodging of the
inquiry.
[34]
The contention that the Applicant does not have the authority to
raise any queries, or to lodge disputes on the amounts charged
for
rates because it is the owner with whom the Second Respondent has an
agreement to provide municipal services, flies in the face
of the
policy.  Clause 18 thereof provides that:
(1)
Any aggrieved person may address a grievance or query regarding
charges for municipal services to the Chief Financial officer
or may
visit any customer care office provided for by the municipality.
(2)
Every consumer has the right to ask (sic) and be provided with a
clear explanation as to the service being charged and the breakdown
of all amounts shown on their accounts.
(3)
The aggrieved person shall clearly state the basis of his or her
dissatisfaction and the desired resolution.
(4)
The lodging of any complaint shall not relieve the aggrieved person
of the responsibility to settle his or her account. An interim
payment similar to the average account must be paid by the due date
pending the finalization of the enquiry.
(5)
The municipality will respond to all inquiries from consumers in
writing within twenty days from the lodging of the inquiry.
[35]
The language of the policy is plain and it needs no
interpretation.  Suffice to mention that the Applicant’s
contention
is that she approached the Respondents, and brought this
application as the occupier of the affected premises.  She is
the aggrieved
person by all accounts when regard is had to the
provisions of the policy.  Clause 2 of the policy defines
“occupier” and
“customer” as follows:
“
Occupier”
means the person who controls and resides on or controls and
otherwise uses immovable property, provided that:
(a)   the
husband or wife of the owner of the immovable property which is at
any time used by such husband or wife as a
dwelling, shall be deemed
to be the occupier thereof.
“
Customer”
means the occupier of any premises to which the municipality has
agreed to supply or is actually supplying municipal services, or
if
no occupier can be identified or located, then the owner of the
premises and includes any debtor of the municipality.
[36]
It is not difficult to discern from the provisions of the policy who
has the right to lodge an enquiry; address a
grievance or query
regarding charges for municipal services. All the above mentioned
provisions entitle the Applicant to address
a grievance, or query or
lodge an enquiry as the case maybe, and to have the grievance fully
investigated and explained by the Respondents.
[37]
It is concerning that Ms Madzidzela appears to have adopted a
high handed approach in her handling of the enquiry made
by the
Applicant.  Such an approach clearly falls foul of the
provisions of the policy.
[38]
The Applicant does not deny that she has an obligation to pay the
outstanding amounts of rates. Even after the R8
000-00 was credited
to her account, she still had a query regarding the amounts charged.
It was therefore impermissible for the Respondents
to act contrary to
their own policy in the respects afore mentioned.
Conclusion
[39]
In light of the Respondents’ failure to comply with the provisions
of section 129 of the National Credit Act, it cannot
be said that the
Applicant was given adequate notice of the intended disconnection. It
is worth mentioning that even on the day of
the disconnection of the
electricity supply, the Applicant visited the Respondents’ offices
in order to present her long standing
query as it were, but was given
no assistance by the Second Respondent’s legal officer.
[40]
This Court finds that there is a dispute pending regarding the
different amounts of rates charged on monthly account statements,
and
the transaction history generated by the Respondents in respect of
the affected premises. Therefore, the Respondents acted unlawfully
in
disconnecting the electricity supply to the affected premises while
the dispute remains unresolved.  On the basis of the
afore going
a clear right has been established by the Applicant, which the
Respondent cannot deny.
[41]
In light of the persistent high handed approach adopted by Ms
Madzidzela in handling the matter, even on the day of the
disconnection, the Applicant was left without an appropriate
alternative remedy. Were the court not to grant the relief sought,
nothing
would then have prevented the Respondents from continuing to
issue disconnection orders against the Applicant in contravention of
its own Credit Control and Debt Collection Policy, to the detriment
of the Applicant.
[42]
It is indeed unfortunate that the tenor of the answering affidavits
indicates that this application was opposed by
the Respondents on an
incorrect understanding of the legislative framework relevant on the
issues at hand; and most disturbingly
on a flagrant disregard,
alternatively misinterpretation of the Second Respondent’s policy.
In all the circumstances, the
Applicant has made a case for the
granting of the relief sought.
[43]
In the result, the following order is made:
1.
That the Respondents be and are hereby prohibited from
disconnecting
the electricity supply to the premises at 8 Mnukwana Street, Ikwezi
Township, Mthatha, or from disrupting the supply
of electricity to
the above premises for reasons pertaining to arrears allegedly owed
with regards to the electricity account number:
125644, until such
time as the dispute lodged by the Applicant, and/or proceedings for
statement and debatement of account, to be
lodged within 30 days of
the dispute not being resolved, are finalized.
2.
The Second Respondent shall pay the costs of this application.
L.
RUSI
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
Counsel
for the Applicant:        Adv S.
Mzileni
Applicant’s
Attorneys:
Majali Attorneys
Counsel
for the Respondents:    Adv S.S.T Maphekula
Respondents’
Attorneys:           T.L
Luzipho Attorneys
DATE
HEARD: 21 May 2021
DELIVERED:
27 May 2021
[1]
Local
Government:
Municipal Systems Act, 2000 (Act 32 of 2000).
[2]
National Credit Act, 2005 (Act 34 of 2005), as amended by the
National Credit Amendment Act, 2014 (Act 19 of 2014).
[3]
[3]
Section 152 of the Constitution.
[4]
Merafong Demarcation Forum and Others v President of RSA and Others
[2008] ZACC 10
;
2008 (5) SA 171
(CC) at paragraph 267.
[5]
Body
Corporate Croftdene Mall v Ethekwini Municipality
2012 (4) SA 169 (SCA).
[6]
Promotion of Just Administrative Justice Act, 2000 (Act 3 of 2000).
[7]
Frank R Thorold (Pty) Ltd v Estate Late Beit
[1996] ZASCA 79
;
1996 (4) SA 705
(A) at
708I -709A