About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 315
|
|
Eskom Limited v Strydom (A427/2014) [2015] ZAGPPHC 315 (4 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA')
CASE NO: A427/2014
DATE: 4 MARCH 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN
THE MATTER BETWEEN
:
ESKOM
LIMITED
.....................................................................................................................
APPELLANT
AND
PETRUS JOHANNES
GERHARDUS
ADRIAAN
STRYDOM
...........................................................................................................
RESPONDENT
JUDGMENT
KOLLAPEN J;
INTRODUCTION
1. This is an appeal
against the whole of the judgment delivered by the Honourable
Magistrate H Engelbrecht on the 5
th
of December 2013 in
the Magistrate’s Court for the District of Witbank, sitting at
Witbank.
THE NATURE AND
SCOPE OF THE APPEAL PROCEEDINGS
2.
The proceedings in the Magistrate’s Court relative to this
matter commenced with the grant of an
ex
parte
application
on the 18
th
of October 2012 directing the appellant to restore the electricity
supply to the property known as Holding 69 Kendal. The rule
nisi
was
extended by Magistrate Malinda on the 30
th
of May 2013 and a written judgment was delivered that dealt
exclusively with the points
in
limine
raised
by the appellant in resisting the confirmation of the rule.
3.
The
matter thereafter came before Magistrate Engelbrecht, who in his
judgment made reference to, and associated himself with the
judgment
of Magistrate Malinda, dealt with the application on the merits and
then proceeded to make an order dismissing the opposition
to the rule
and confirmed the rule.
4.
I traverse the background as the Notice of Appeal filed in these
proceedings relates only to the judgment of Magistrate Engelbrecht
and not that of Magistrate Malinda, whose judgment deals with the
points
in limine.
When
one however has regard to the judgment of Magistrate Engelbrecht,
then he also deals with the points
in
limine,
even
if largely to the extent of associating himself with the reasons and
conclusion of Magistrate Malinda. In addition the Notice
of Appeal
covers the points
in
limine
as
well as the merits and the parties have prepared to argue the appeal
on both the points
in
limine
as
well as the merits.
5.
My view accordingly is that the interests of justice would be best
served if the appeal proceeded on all of the issues raised
and while
there may strictly speaking not have been a notice of appeal filed in
respect of the judgment of Magistrate Malinda,
all of the issues in
dispute are properly before us and no prejudice will be caused to any
of the parties if the appeal proceeds
on the points
in
limine
as
well as on the merits.
THE BACKGROUND
FACTS
6. The respondent
occupies the property known as Holding 69, Kendal Mpumalanga and has
been living there since 1975. There is a
hostel that is occupied by
some 33 tenants, being operated from the premises as well as the
business of a piggery.
7.
The appellant supplies electricity to the premises and it appears
that after an account was rendered by the appellant during
September
2011, the respondent fell into arrears with his payments, largely as
a result of the fact that the contract workers who
occupied the
hostel ceased to do so and the resultant loss in income led to the
respondent being unable to pay his electricity
account with the
appellant.
8. The respondent
alleges that during or about August 2012, the arrears on his account
amounted to some R80 114-20 and that the
supply of electricity was
terminated on the 22
nd
of August 2012. There does not
appear to be any dispute raised about the lawfulness of this
termination of the electricity supply.
9. According to the
respondent a payment in the sum of R80 114-20 was made on the account
by a Mr Nothnagel, a friend of the respondent.
It is alleged that
this payment was made on the 23
rd
of August 2012,
resulting in the reconnection of the electricity supply to the
property on the same day. There was a dispute as
to whether the
payment of R80 114-20 was taken into account and deducted from the
respondent’s account and in addition whether
the respondent
paid the other amounts that were levied. The applicant denies that it
received the payment of R80 114-20 and says
that it called upon Mr
Nothnagel to provide details of the payment, which he failed to do
despite undertaking to do so.
10.
The consequence of all of this was that the electricity supply was
terminated on the 16
th
of October 2012, which resulted in the
ex
parte
application
and the order of the 18
th
of October 2012 to which reference has been made.
ISSUES FOR
DETERMINATION IN THE APPEAL
11. The issues for
determination in this appeal are:
In
Limine
:
i.
Did the Court
a
quo
have
the necessary jurisdiction to hear the application?
The
stance of the appellant is that to the extent that the relief sought
was an order for specific performance, it was not competent
for the
Court to have considered and granted the relief it did in the absence
of an alternate claim for damages, reliance being
placed on Section
46 (2)(c) of the Magistrate’s Court Act, and related to that:
ii.
Was the Court
a
quo
correct
in concluding that the supply of electricity was an incident of the
possession of the property thus bringing it within the
scope of the
Mandament van
Spoliel
On
the merits
:
iii. Was the
appellant justified in terminating the supply of electricity on
account of non-payment and if it was, did it follow
the correct
procedure in doing so, in particular with regard to the mode and form
of the pretermination notice that had been given?
12.
The two points
in
limine
are
inextricably linked and it may be convenient to deal with them
together.
Was
the use of electricity an incident of possession or a matter
regulated by
contract?
13. Section 46(2)(c)
of the Magistrate’s Court Act 32 of 1944 (‘the Act’)
provides that a Magistrate’s Court
shall not have jurisdiction
‘in matters in which specific performance is sought without an
alternate of payment of damages...’
and it then provides for
various exceptions to the prohibition, none of which are applicable
in this appeal.
14.
The stance of the appellant is that the relief sought and granted was
in the nature of specific performance and thus, absent
an alternate
prayer for damages, it fell outside of the jurisdiction of the Court
a quo.
When
one has regard to the relief claimed, the action brought and the
relief granted was premised on the cause of action being the
mandament van
spolie.
Section
30 of the Act does indeed enable the Magistrate’s Court to
grant an order in the nature of a
mandament
van spolie.
15.
Clearly on the jurisdictional challenge, it will ultimately depend on
whether the nature of the right that the respondent sought
to protect
was contractual in nature or on the other hand, it was a
quasi-possession right that fell within the scope of the
mandament
van spolie .
16.
The appellant’s stance was that the supply of electricity by
itself to the respondent did not result in it becoming an
incident of
possession and thus the
mandament
was
not the applicable remedy in the circumstances.
17.
Our Courts have over time expressed themselves on the nature of the
remedy of the
mandament
van spolie.
The
Courts have also explored the scope of the remedy in relation to what
has become known as quasi-possessio rights and in partriclar
have
dealt with the use of electricity in relation to its protection and
inclusion under appropriate circumstances by the
mandament
van spolie.
18.
In
FIRSTRAND LTD t/a RAND MERCAHT BANK
v
SCHOLTZ
2008 (2) SA 503
SCA
,
MALAN AJA (as he then was) stated that (at 510B-D):
‘
The
mandament van spolie does not have a ‘catch-all function ’
to protect the
quasi-possessio
of all kinds of
rights irrespective of their nature. In cases such as where a
purported servitude is concerned the mandament is
obviously the
appropriate remedy, but not where contractual rights are in dispute
or specific performance of contractual obligations
is claimed: Its
purpose is the protection of
quasi-possessio
of certain rights.
It follows that the nature of the professed right, even if it need
not be proved, must be determined or the right
characterised to
establish whether its
quasi-possessio
is deserving of
protection by the mandement. Kleyn seeks to limit the rights
concerned to ‘gebruiksregte ’ such as rights
of way, a
right of access through a gate or the right to affix a nameplate to a
wall regardless of whether the alleged right is
real or personal.
That explains why possession of ‘mere’ personal rights
(or their exercise) is not protected by the
mandament. The right held
in
quasi-possessio
must be a
‘gebruiksreg’ or an incident of the possession or control
of the property
19.
In this regard it follows that the right sought to be protected must
either be a
‘
gebruiksreg’
or
an incident of possession. The appellant contends that the supply of
electricity and its use had become an incident of possession
and it
is this proposition that requires further examination.
20.
In
NAIDOO v MOODLEY
1982
(4) SA 82
(TPD)
,
the
Court concluded that in the context of the facts of the case the use
of electricity was an incident of occupation and its termination
was
an act of spoliation. In that matter the occupation of the premises
as well as the concomitant use of electricity came into
existence as
a result of an agreement between the parties and the occupation of
the premises in question was linked to the right
of the occupier to
use electricity as well. I do not understand
NAIDOO’S
case
to be authority for the proposition that the use of electricity will
always constitute an incident of possession. Indeed if
one has regard
to the
dicta
of
MALAN AJA in
FIRSTRAND
(supra)
then it is incumbent on the Court to examine the nature of the
professed right in determining whether its quasi-possessio
is
deserving of protection by the
mandament
van spolie.
21.
In
TELKOM v XSINET
(PTY)
LTD
2003 (5) SA 309
(SCA)
,
the Court concluded that the disconnection of a telephone and
bandwidth system did not activate the
mandament
van spolie
as
the rights were mere personal rights and the relief sought in the
form of the
mandament
was
essentially to compel specific performance of a contractual right.
The Court however also made reference in its judgment to
the reality
that in certain circumstances the use of water or electricity may be
an incident of occupation of residential premises.
22.
The
use of the word ‘may’ is instructive in that it certainly
cannot be said that the use of water and electricity will
always be
an incident of possession. In addition the reference to its use in a
residential setting may also suggest that use of
water and
electricity for residential as opposed to commercial or business
purposes may well be a factor in determining the nature
of the
professed right.
23.
In
IMPALA WATER USERS ASSOCIATION
v
LOURENS NO AND OTHERS
2008
(2) SA 495
SCA
the
Court dealt with the claim that water rights that had been used had
become an incident of possession. In distinguishing the
XSINET
matter,
the Court concluded (at 500H) that ‘the water rights interfered
with were linked to and registered in respect of a
certain portion of
each farm used for the cultivation of sugar cane, which was dependent
on the supply of water forming the subject
matter of the right. The
use of water was accordingly an incident of possession of each
farm... ’
24. Thus it was not
simply the use of water that had rendered it an incident of
possession but also the circumstances under which
such use came into
existence and its linkages to the possession of the property.
25.
It would thus follow that the mere use and enjoyment would not in
itself satisfy the requirement of an incident of possession.
What is
required is not simply some connection between the use of electricity
and the possession of the property but rather something
more that
elevates the use and enjoyment to being an incident of possession. If
this was not so then there is the real risk that
the
mandament
develops
a ‘catch-all function’ to protect the quasi-possessio of
all rights irrespective of their nature - precisely
what the Supreme
Court of Appeal in
FIRSTRAND
(supra)
said the remedy was not about.
26.
In casu
and
from the undisputed facts the property in question has both a
residential and a commercial use. The existence of a hostel and
a
piggery on the property is a factor to be considered in determining
whether the rights sought to be protected is contractual
in nature or
an incident of possession.
27.
In
JOSEPH AND
OTHERS v CITY OF JOHANNESBURG
2010
(4) SA 55
(CC),
the
Court described the relationship between the municipality and its
citizens as a special cluster of relationships shaped by the
public
responsibilities that a municipality bears in terms of the
Constitution. It took the view that administrative law principles
operated to govern those relations beyond the law of contract.
28.
In casu
the
appellant is not a municipality but is an organ of State and while it
must be eminently arguable that certainly some administrative
law
principles may be applicable to its relationships with its consumers,
it stands on a different footing to a municipality which
has
constitutionally sanctioned obligations to its citizens, if regard is
had to Section 152 of the Constitution. In addition
JOSEPH
dealt
with the disconnection of electricity in terms of the
Promotion of
Administrative Justice Act 3 of 2000
and the Court concluded that in
that context administrative justice principles were applicable. It
did not apply its mind to the
applicability of the
Mandament
van Spolie
as
an appropriate remedy.
29. When one
accordingly considers the nature of the right involved in this
appeal, it was the right to use electricity for personal
and business
reasons that was largely governed by a relationship and an
understanding that payment would be made for the services
being
rendered as well as an understanding that failing payment there was a
right, subject to procedural fairness, to disconnect
the electricity
supply.
30.
On
the respondent’s version, he fell into arrears when the
business of the hostel went into decline and which then resulted
in
arrears in excess of R 80 000-00 accumulating. The respondent was
then mindful that a payment would be necessary in order to
restore
the electricity supply and the purported payment of R80 114-20 was
made on the 23
rd
of August 2012 resulting in the reconnection of the electricity
supply. There was then a dispute raised with regard to the receipt
of
such a payment and attempts to resolve such a dispute then ensured.
31. In all of this
the parties were certainly engaging with each other in the context of
the purchase and supply of electricity
fully cognisant of the nature
of the relationship that was premised on essentially the purchase of
electricity. Given that much
of the electricity use was for business
purposes, it would also reasonably follow that the supply of that
electricity was a part
of the commercial operations of the appellant.
This in my view is also a factor to be considered in characterising
the right the
respondent contended for.
32. In addition, the
respondent in his Founding Affidavit in advancing the argument,
states under oath that for some twelve years
an agreement existed
between the parties in terms of which the supply of electricity would
be regulated on the basis that the respondent
would make a monthly
payment and in return, the appellant would supply electricity. This
relationship is in my view substantially
contractual in nature and is
indeed supported by the parties’ acceptance and reliance on the
monthly invoices that were issued
as evidencing the contractual
relationship that had come into existence.
33. It must
accordingly follow that when the electricity supply was discontinued
on the 16
th
of October 2012, the respondent in approaching
the Magistrate’s Court for relief, was essentially seeking to
enforce the
contractual arrangement for the supply of electricity
that he maintains was in existence for twelve years. It is clear from
his
papers that what he sought to protect and preserve was his right
to be supplied with electricity in terms of the agreement he had
concluded with the appellant. Thus even though it may well be that he
enjoyed the use of electricity while he was in occupation
of the
property, such usage arose out of a contractual relationship with the
appellant and was not an incident of possession.
34 . Under such
circumstances I am not satisfied that it could be said that the
nature of the right rendered it as an incident of
possession. The
supply and use of electricity by the appellant while it may have some
elements of administrative law attached to
it, does not have the
effect of changing the essential character of the relationship
between the parties which is the foundation
of the claim of the
right. That relationship in the context of what is largely or
substantially the commercial use of the premises,
was essentially one
of contract, albeit with administrative law elements attached to it,
particularly with regard to procedural
fairness.
35.
In conclusion and when I have regard to the nature of the right
contended for by the respondent, I am not satisfied that it
is in the
nature of a quasipossession right that warrants the utilisation of
the remedy of the
mandament
van spolie.
To
do so would be to effect an unwarranted extension of what has been
properly described as a robust remedy.
36.From
this it must follow that the
mandament
was
not the appropriate remedy to protect the right the respondent
contends for. For these reasons I would uphold the point
in
limine
and
the appeal should on account of that succeed.
ORDER
37.
In
the circumstances I would propose the following order:
37.1
The
appeal is upheld.
37.2
The
orders of the learned Magistrates Malinda and Engelbrecht of the 30
th
of May 2013 and the 5
th
of December 2013 are set aside and replaced with the following:
37.1.2.1
The
rule
nisi
issued
on the 18 of October 2012 is discharged with costs.
37.1.2.2
The
appellant is ordered to pay the costs of this appeal.
N KOLLAPEN
JUDGE OF THE HIGH
COURT
I AGREE,
R TOLMAY
JUDGE OF THE HIGH
COURT
IT IS SO ORDERED.
A427/2014
HEARD ON: 17
FEBRUARY 2015
FOR THE APPELLANT:
ADV. S G WEBSTER
INSTRUCTED BY:
GILDENHUYS MALATJI INC. (ref: R Venter/vp/01688731)
FOR THE RESPONDENT:
ADV. A Le R STEMMET
INSTRUCTED BY:
DANIEL S GOOSEN ATTORNEYS (ref: DS Goosen/DS0484)