About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2019
>>
[2019] ZAECELLC 31
|

|

Tetani and Another v Buffalo City Metropolitan Municipality and Another (EL406/2019) [2019] ZAECELLC 31 (14 November 2019)

IN THE HIGH COURT OF
SOUTH AFRICA
(EAST LONDON CIRCUIT
LOCAL DIVISION)
CASE
NO.: EL 406/2019
Date
heard:    17 October 2019
Date
delivered: 14 November 2019
In
the matter between:
TEMBAKAZI
TEMBISA TETANI
First Applicant
NKOSINATHI
STEVEN TETANI
Second Applicant
And
BUFFALO
CITY METROPOLITAN MUNICIPALITY
First Respondent
THE MANAGER: BUFFALO CITY
METROPOLITAN
MUNICIPALITY
Second Respondent
JUDGMENT
MFENYANA
AJ
Introduction
[1]
The applicants are husband and wife. They brought an urgent
application in which they sought a rule
nisi
calling upon the
respondents to show cause why they should not be interdicted and
restrained from unlawfully disconnecting the electricity
supply to
the applicants’ premises, and be directed to reconnect the
electricity supply to the applicant’s premises.
The
application was brought on an urgent basis.  On 17 April 2019
Smith J, granted the following order:
“
1. The Applicants’
non- compliance with the rules relating to service of processes and
papers as well as the timeframes set
out, including the 72 hours’
notice referred to in section 36 of the General Law Amendment Act,
1955   (Act 62
of 1955) be and is hereby condoned;
2.
That the Applicants be granted leave to proceed with this application
by way of urgency in terms of rule
6(12);
3.
That the Applicants be granted leave to serve the application papers
and any order granted by this Honourable
Court on the Respondent’s
physical address.
4.
That a rule
nisi
issue calling upon the Respondents to show
cause on 14 May 2019 at 09h30 or soon thereafter as the matter may be
heard why an order
in the following terms should not be made final:
1.
That the termination/disconnection/blockage of electricity supply to
Mhlophe Avenue, Sunnyridge,
East London (“the premises”)
on Tuesday, 16 April 2019 be and is hereby declared unlawful;
2.
That the Respondents be and are hereby directed to reconnect the
electricity supply to the premises
forthwith within one hour after
service of the court order at the offices of the Second Respondent;
3.
That the Respondents be and are hereby interdicted and restrained
from charging the Applicants
a reconnection fee as a result of the
unlawful disconnection on 16 April 2019
4.
That the Respondents are interdicted and restrained from unlawfully
terminating/disconnecting/blocking
the supply of electricity to the
premises;
5.
That the Respondents are directed to pay the costs of this
Application on an attorney
and client scale; and
6.  …
7.  … ”
[2]
The application is opposed by the respondents.
[3]
On 3 May 2019, following a further disconnection of
electricity supply to the applicants’ premises, the applicants
brought
another urgent application, and on which day the rule
nisi
was extended to 14 May 2019. On 14 May 2019, the rule
nisi
was
further extended to 28 May 2019 and on that day, further extended to
an unspecified date until confirmed or discharged. The
present
proceedings are a culmination of the happenings stated above.
[4]
At the heart of the matter, is a dispute emanating from the
said disconnection of electricity supply to the applicants’
premises
by the respondents. The applicants reside on the premises
and are the registered owners thereof.
[5]
It is alleged that on 16 April 2019, the first respondent,
without prior notification, caused the electricity supply to the
premises
to be abruptly discontinued. The respondents deny that there
was no prior notification and aver that they issued various notices

to the applicants. In his answering affidavit the second respondent
refers the Court to numerous notices which he states were served
on
the applicants. He further states that in an endeavour to keep costs
to a minimum, the second respondent elected to send notices
of
termination by ordinary mail. This is nothing short of a concession
that the notices were not served as required in terms of
the by-laws.
The second respondent also does not, and cannot say when the alleged
‘service’ took place.
Submissions
[6]
Ms
Van Vuuren, acting on behalf of the applicant stated that the issue
to be determined is whether the first respondent complied
with its
own by-laws. She argued that there was no prior notification given by
the first respondent to the applicants, and the
applicants were not
called upon to make representations, as is required in terms of the
by-laws. In so doing, so she continued,
the respondents acted
contrary to their own by-laws and their conduct is therefore
unlawful. She further argued that the notices
annexed to the
respondents’ answering affidavit were only print-outs with no
original remittance from the post office and
not in compliance with
section 6
[1]
. She argued that
the evidentiary burden lies with the respondents to prove that the
notice had been despatched to the applicants
in compliance with the
respondents’ own by- laws.
[7]
Mr Nyangiwe, who appeared for the respondents argued on the
contrary, that the issue to be decided by the Court is whether the
applicants
received the notice. He argued that the first respondent
has to satisfy the manner of service only if the applicants deny
receipt
of the notice. In the present case, so he stated, the
applicants do not deny that they received the notice of termination
of their
electricity supply. He was constrained to concede that the
notice was not served in terms of the by-laws. He however argued that

it was ‘issued’ in accordance therewith and that the
applicants could not receive a notice that was not served or sent
to
them as they do not deny that they received the notices
Legal
framework
[8]
It
is  imperative  to  consider  the  relevant
provisions  of  the Buffalo
City Metropolitan Municipality
by-laws
[2]
as codified in the
Provincial Gazette.
Section
21
thereof
states:
“
(1) The
Municipality has the right to disconnect the supply of electricity to
any premises:
(a)
. . .
(b)
subject to 14 (fourteen) days written notice where – (i) –
(vi) . . .
(vii)
the person liable to do so fails to pay any charge due to the
Municipality in connection with any
supply of electricity which such
person may have received from the Municipality in respect of such
premises; and
(viii)
…
(ix)
after any such disconnection, the fee as prescribed by the
Municipality shall be
paid”.
[9]
Section 6
deals with service of the notice. The
provisions thereof, relevant to the present proceedings state that
any notice that is served
on any person in terms of this by-law is
regarded as having been served when:
(a)    it
has been delivered personally to the person concerned;
(b)
it has been left at that person’s place of residence or
business with a person apparently over
the age of sixteen years;
(c)
it has been posted by registered or certified mail to that person’s
last known residential or
business address in the Republic and an
acknowledgement of the posting thereof has been obtained from the
postal service.
[10]
It is common cause that on 16 April 2019, the respondents
terminated the supply of electricity to the applicants’
premises.
This, the respondents argue, was precipitated by the
applicants’ failure to pay arrear amounts due to the first
respondent
in respect of such electricity supply. The applicants do
not gainsay that their electricity account with the respondents was
in
arrears.   It is also common cause that on  30
April 2019, the respondents terminated the electricity supply to the

applicants’ premises again. This led the applicants to once
again approach the court on an urgent basis whereat this Court,
per
Bodlani AJ issued a further rule
nisi
on 3 May 2010. The two
applications were subsequently consolidated.
[11]
The applicants argue that the termination of the electricity
was done without the requisite prior notice to them. This is disputed

by the respondents, who argue that the requisite notice was in fact
issued and posted to the applicants, albeit not by registered
or
certified mail. This is the nub of the present matter,
i.e
.
whether the pre-termination notice  was  served  as
stipulated  in  the  by-laws. Mr
Nyangiwe
argued  that the applicants have not disputed receipt of the
notice, but only argue that it was not sent to
them as required by
the law. They therefore do not regard it as a notice, he stated. He
argues that this Court should find that
the applicants did in fact
receive the notice. I do not agree. Section 6 is set out in
unambiguous terms. It requires the respondents
to serve the
pre-termination notice in any one of the prescribed methods. It was
not argued on behalf of the respondents that they
have served the
notice in any one of the prescribed ways.  In fact, it is common
cause that they did not.
[12]
Both
parties placed reliance on the judgment of this Court, per Stretch J
in
Dumbela
[3]
,
where the learned Judge found that the Municipality had not complied
with its by- laws. Ms Van Vuuren, argued that the present
matter is
on all fours with the
Dumbela
matter.
Mr Nyangiwe, on the other hand placed reliance on the issue to be
decided as identified in
Dumbela
,
that being whether the applicant had received the notice. While
agreeing with the
ratio
in
Dumbela,
he
however argued that the present case is distinguishable from
Dumbela
in that
in the present case, the applicants do not deny that they received
the notice.
[13]
What  belies Mr  Nyangiwe’s submission
is the  learned  Judge’s
obiter  dicta
further in the judgment where she states that:
“
It is so
that in the ordinary course of business letters are presumed to have
been despatched and received by the addressee, and
it is for the
latter to rebut such a presumption. …
that
presumption only comes into effect when the contents of the notice
(have) been conveyed to the recipient in any one of a number
of ways
which have been codified in terms of the by-laws (
Own
emphasis
).
If it
is alleged that none of these measures have been taken, it is for the
respondents to demonstrate that they have.”
[4]
[14]
He
further  submitted  and  placed  reliance
on   section   33
of
the   Postal Services Act
[5]
which provides that the delivery of a postal article to the house or
office or agent of the addressee is regarded as delivery to
the
person to whom the article is addressed. I do not think that this
assists the respondents for two reasons. The first is that
the
respondents are neither able to assert when the said notice
was‘delivered’, nor do they argue that it was ‘delivered’

at the applicants’ house, office or to their agent. The second
reason, as I have already found, is that delivery of the notice
does
not amount to service of the notice as is required in terms of the
by- laws.
[15]
It
is common cause that the first respondent embarked on the impugned
conduct as a means of collecting a debt owed to it by the
applicants.
This manner of debt collection has received widespread criticism from
the courts and is regarded as draconian. It needs
to be impressed
that the purpose of the requirement to issue a notice is not intended
to impose an undue burden on the respondents,
but is in keeping with
the rule of law which in this case, will ensure that rights are not
taken away arbitrarily.
[16]
To the extent that the first respondent was performing an
administrative action, Ms Van Vuuren pointed out, correctly in my
view,
that this act must be justified by some lawful authority.
[17]
It
is thus settled law that when a municipality supplies electricity, it
does so in fulfilment of its constitutional and statutory
duty to
provide basic municipal services. It follows therefore that any
deprivation of such right must be preceded by some prior

notification. The respondents are obliged to afford the applicants
procedural fairness before taking a decision that would materially

affect that right. In
Joseph
[6]
Skweyiya J stated:
“
I am of the view
that this case is similarly about the “special cluster of
relationships” that exist between a municipality
and citizens,
which is fundamentally cemented by the public responsibilities that a
municipality bears in terms of the Constitution
and legislation in
respect of the persons living in its jurisdiction. . . .”
[7]
Conclusion
[18]
It appears to me that in view of the fact that the contents of
the notice were not conveyed to the applicants in any one of the
prescribed methods, there can be no merit to the respondents’
opposition. It does not avail the respondents to argue that
they had
issued and even mailed the notice in any manner other than that
prescribed in the by-laws. Were this to be allowed, it
would fly in
the face of the respondents’ own by- laws. It can therefore not
be condoned.
[19]
It is clear that the respondents have failed to comply with
their own by-laws in terminating the electricity supply at the
applicants’
premises on 16 and 30 April 2019 respectively.
The application must therefore succeed.
Costs
[20]
With
regard to the issue of costs, Mr Nyangiwe, counsel for the
respondents, submitted that the principle in
Biowatch
[8]
should apply, which suggests that in the event of the respondents
succeeding in their opposition, they would spare the applicants
of
the burden of costs. Having found as I have, that the respondents
failed to comply with their own by-laws, that presupposes
that the
applicants have been successful in their application. I can therefore
find no reason to deviate from the general rule
that costs should
follow the cause.
Order
[21]
In the result, I make the following order:
(i)
The rule
nisi
is confirmed.
(ii)    The
respondents are ordered to pay the costs of the application.
SM MFENYANA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
for the applicants:
Ms
L Van Vuuren
Instructed
by:                     SJ

Ngqongqo Attorneys
East
London
Counsel
for the respondents:
Mr
X Nyangiwe
Instructed
by:      Dyushu & Majebe Inc.
East
London
[1]
Section 6 of the Buffalo City Metropolitan Municipality –
Electricity Supply By-Laws: Provincial Gazette Extraordinary,
10
December 2009, No.2245.
[2]
Id. Buffalo City Metropolitan Municipality – Electricity
Supply By-Laws: Provincial Gazette Extraordinary, 10 December
2009,
No.2245.
[3]
Dumbela
v Buffalo City Metropolitan Municipality and Another EL 298/2019
(
Dumbela
)
.
[4]
Id at paras 17 – 18.
[5]
Postal Services Act No.34 of 1998
.
[6]
Joseph
and Others v City of Johannesburg and Others
[2009]
ZACC 30
;
2010 (3) BCLR 212
(CC);
2010 (4) SA 55
(CC) (
Joseph
).
[7]
Id at para 25.
[8]
Biowatch
Trust v Registrar Genetic Resources and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).