Meyer v Moqhaka Local Municipality (4008/2003) [2004] ZAFSHC 122 (24 June 2004)

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[2004] ZAFSHC 122
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Meyer v Moqhaka Local Municipality (4008/2003) [2004] ZAFSHC 122 (24 June 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Case
No.: 4008/2003
In the
matter between:
HENDRIK
FREDERIK MEYER
Applicant
and
MOQHAKA
LOCAL MUNICIPALITY
Respondent
___________________________________________________________
CORAM:
RAMPAI,
J
___________________________________________________________
HEARD
ON:
11 DECEMBER 2003
___________________________________________________________
DELIVERED
ON:
24 JUNE 2004
___________________________________________________________
[1] The matter came by way of an urgent application on 27 November
2003. It served before me. I fixed deadlines for the filing
of the
answering affidavit and the replying affidavit. I then postponed the
matter to Thursday, 11 December 2003 for argument and
I also ordered
the respondent to supply electricity to the applicant immediately
pending the finalisation of this application. All
these were in
accordance with the agreement reached between the parties.
[2] On Thursday, 11 December 2003 I heard argument for and against
the application. Having heard argument, I granted the application.

I gave no reasons for the judgment but indicated that I would do so
on request. Since then I have received a written request from
the
respondent to furnish reasons for my judgment.
[3] The relief sought in these proceedings as set out in the notice
of motion was as follows:
3.1 Dat die aansoek aangehoor word as ‘n dringende aansoek en dat
kondonasie aan applikant verleen word vir die nie-nakoming van
die
reels met betrekking tot vorm en betekening.
3.2 Dat die respondent beveel en verplig word om die
elektrisiteitstoevoer na die plot Kraalkop Nr 23, Erf 336, Kroonstad
aan te
sluit en te herstel hangende die instel en finalisering van ‘n
aksie deur die applikant teen respondent vir die her-aansluiting
en
herstel van die elektriese toevoer en meegaande regshulp aan plot
Kraalkop Nr 23, Erf 336, Kroonstad, welke aksie binne 60 (sestig)
dae
na verlening van hierdie bevel ingestel word in hierdie hof.
The
application is opposed by the respondent.
[4] The applicant is an adult male who resides on a plot known as
Plot 23 Kraalkop, Erf 336 Kroonstad in the Free State Province.
He
is employed by a close corporation as its financial manager. More
about the close corporation later.
[5] The respondent is a local authority established in terms of the
provisions of the Local Government: Municipal Structures Act
No.
117/1998. The respondent is the successor in title of three
previously autonomous municipalities of Kroonstad, Steynsrus and
Viljoenskroon. Its provincial offices are situated in Hill Street at
Kroonstad, Free State Province.
[6] In his founding affidavit the applicant avers that the aforesaid
property, Plot 23 Kraalkop, is the property of his employer
Ora et
Labora CC. The business operations of the CC consist of chicken
farming among others. The enterprise continuously uses electricity
in
order to run the chicken breeding machines. The enterprise carries
its business operation on the same plot on which the applicant
resides. The respondent has the sole right to supply electricity to
all the consumers in the Kroonstad district. The respondent
supplies
electricity to the enterprise in terms of a written consumer
agreement concluded between the two. The enterprise failed
to make
regular payments due to the respondent in connection with the
electricity accounts rendered from time to time. By 13 October
2003
the arrears had accumulated to the sum of R168 000,00. As a result of
this, the respondent disconnected the electricity supply
to the plot.
Despite the offer of the enterprise to liquidate the arrears by way
of monthly instalments, the respondent repudiated
the offer and
refused to reconnect the electricity supply to the plot unless the
arrears were paid in full at once.
[7] Prior to this dilemma, the management of the close corporation
had decided to restructure the enterprise so as to promote the
idea
of black empowerment and also to ensure that all the employees could
acquire a stake in the business. Those restructuring plans
were
under threat. The close corporation was facing irreparable financial
harm. The applicant decided to rescue the close corporation.
The
salvage scheme entailed he leasing the plot from his employer, the
close corporation, and then concluding a consumer agreement
with the
respondent for the supply of electricity to the same plot, but for
his own account. On 7 November 2003 the application
signed the lease
agreement with the close corporation. On 13 November 2003 he signed
the consumer agreement with the respondent.
He paid a deposit of R70
000,00. A new electricity account number was then allocated to him.
Notwithstanding all this, the respondent
still refused to supply
electricity to the plot. The respondent adopted the stance that
unless the full outstanding amount owed in
respect of the plot was
paid, the respondent would not supply electricity to the plot.
[8] In its answering affidavit the respondent avers, through its
financial manager Mr M.J. Lenyehelo, that the applicant’s employer,
in other words the close corporation, owes the respondent the total
sum of approximately R½-million in connection with electricity
supplied. The respondent indeed repudiated the offer made by Mr Kooy
on behalf of the close corporation because this representative
could
not convince the respondent’s senior functionaries, namely Mr M.M.
Moadeira the municipal manager, Mr I van Rooyen the legal
advisor
and Mr M.J. Lenyehelo the financial manager, that the close
corporation was able to make satisfactory and acceptable arrangements
to defray the arrears.
[9] The respondent’s employee Ms L. Esterhuizen, had no authority
to conclude consumer agreements on behalf of the respondents
with
members of the public. She was employed as nothing more than an
information clerk. She was unaware that the owner of the plot
owed a
substantial sum of money to the respondent. The respondent confirms
that it refused to supply electricity to the plot notwithstanding
the
said consumer agreement. The respondent tendered to refund the
deposit of R70 000,00 to the applicant. The respondent’s
representatives
Mr McClaren en Mr Maswanganyi informed the applicant
that the respondent considered the whole scheme as evidenced by the
aforesaid
lease agreement to be a circumvention ploy of the debts of
the close corporation. The applicant, as the financial manager of
the
close corporation, was in actual fact attempting to protect the
interests of the close corporation.
[10] In his replying affidavit the applicant denies that the close
corporation was in arrears to the tune of R500 000,00. He avers
that
that correct amount of the arrears owing by the close corporation to
the respondent was altogether R168 194,62 of which R142
839,19 was
owed in respect of Kraalkop 23, Erf 336 and R22 164,01 was owed in
respect of Riverside Erf 73. He explained that on
the plot
Riverside, the close corporation farms in chicken hens whose eggs are
taken to Kraalkop for hatching. The electricity supply
to Kraalkop
was disconnected without any prior written notice or warning. He
denied that Ms Esterhuizen did not know all the true
facts concerning
the account of Kraalkop when she, on behalf of the respondent, signed
the consumer agreement with him. He contends
that the respondent is
obliged to supply him with electricity on the strength of the valid
consumer agreement. He avers that he
is able to make satisfactory
arrangements for the payment of electricity to be supplied by the
respondent.
[11] The applicant denies that the lease agreement between him and
the respondent was a scam intended to circumvent the debt of the
close corporation. He replies that he declined to fork out an extra
amount of R130 000,00 to bring the deposit to R200 000,00.
He says
that he saw the new demand for additional deposit as tantamount to
holding him liable for the debt of another. He saw that
as no normal
practice. He admits that the respondent tendered to refund the
deposit of R70 000,00, but denies the date on which
the tender was
made.
[12] He admits he did not take the matter up with the regulator to
voice his grievance. He replies that the prescribed procedure
is a
cumbersome route which would not have been a satisfactory alternative
relief. It lacked the speed necessary to deal with urgent
situations. He contends that as for the respondent, he was not
remediless since he could disconnect the electricity supply to the
applicant immediately if he failed to pay his account regularly in
the future. On the other hand he would suffer irreparable harm
if
the respondent did not supply electricity to him immediately.
[13] Mr De Wet, counsel for the applicant, on the one hand submits
that the application has merits and that the applicant has made
out a
case for the relief sought. He refers me to the following
authorities in support of the various submissions he made:
SETLOGELO
v SETLOGELO
1914 AD 221
;
L F BOSHOFF INVESTMENT
(PTY) LTD v CAPE TOWN MUNICIPALITY
1969 (2) SA 256
(CPD)
at 267A-F;
OLYMPIC PASSENGER SERVICE (PTY) LTD v RAMLAGAN
1957 (2) SA 382
(N) at 383D-F;
ERIKSEN MOTORS (WELKOM) LTD
v PROTEA MOTORS (WARRENTON)
1973 (3) SA 685
(A);
and
SENEKAL INWONERSVERENIGING v PLAASLIKE OORGANGSRAAD
1998 (3) SA 719
(O) at 727J.
[14] Mr Hefer, counsel for the respondent, on the other hand submits
that the application has no merits and that the applicant has
failed
to make out a case for the relief sought. He too refers me to
certain authorities in support of the various submissions
he made.
Those authorities are:
The Law and Practice of Interdicts
,
p.43;
WELKOM BOTTLING CO v BELFAST MINERAL WATERS LIMITED
1976 (3) SA 45
(O) at 56;
FREE STATE CONSOLIDATED GOLD
AREAS v MERRIESPRUIT GOLD MINE CO AND ANOTHER
1961 (2) SA
505
(W) at 524D.
[15] The applicant contemplates suing the respondent by way of an
action proceedings. In these motion proceedings he seeks an interim
relief pending the contemplated action. The applicant who seeks an
interim relief has to establish four requisites in order to succeed.
Those requisites are:
• Firstly,
a
prima facie
right, though open to some doubt.
• Secondly, a well grounded apprehension of irreparable harm if
the relief is not granted.
• Thirdly,
that the balance of convenience favours the granting of the relief.
• Fourthly,
that the applicant has no alternative relief. (
Vide
SETLOGELO
v SETLOGELO
supra
).
[16] These proceedings are about the supply of electricity to the
premises known as Plot 23 Kraalkop in the district of Kroonstad.
The
plot is owned by a business enterprise called Ora et Labora CC. The
applicant is in the employ of the plot owner, in other words,
the
close corporation. He is its financial manager. He resides on the
plot with his family. The close corporation carries on business
of
chicken hatching on the plot. The enterprise depends on electrical
power for the operation and heating of the breeding machines.
The
eggs which are artificially incubated are produced from another plot
of the same close corporation known as Riverside. At any
given moment
approximately 500 000 chicken eggs valued approximately R960 000,00
are incubated in the breeding machines. The uninterrupted
supply of
electricity to the breeding machines is indispensable seeing that the
chicken embrios, in other words, unhatched eggs have
to be heated up
at all times so as to ensure that they do not prematurely perish.
The enterprise provides chickens to the chicken
farming industry and
provides employment to several workers. The enterprise has a diesel
generator for temporary use in emergency
situations which might be
occasioned by unforeseen electrical power failure.
[17] The applicant’s employer began experiencing financial problems
about two years before these proceedings. Certain market forces
had
such an adverse impact on the turnover of the close corporation that
its electricity account fell in arrears. As on 13 October
2003 the
accumulated arrears stood just above R168 200,00. On that day the
respondent, who is the sole provider of electricity in
the district,
demanded payment thereof, and warned the close corporation that it
would discontinue the supply of electricity to its
Kraalkop plot
unless payment was made by noon on the same day. The close
corporation was unable to comply with the demand and the
respondent
summarily disconnected the electricity power supply. On average the
close corporation consumed electricity power of about
R26 000,00 per
month. The close corporation was unable to make satisfactory
arrangements afterwards to the respondent for the payment
of the
arrears. Its offer was unacceptable to the respondent.
[18] The impasse between the respondent and the applicant’s
employer threatened the livelihood of the applicant and his fellow
employees. They were, before the electricity supply was
disconnected, facing bleak prospects of losing their jobs as a result
of
the weakening financial stability of their employer. The
disconnection made matters worse. The worsening situation prompted
the
applicant to think out a plan to protect his livelihood. He sold
the idea to his employer. The employer bought the idea. The lease
agreement of the employer’s business enterprise by the employer’s
employee was singed on 7 November 2003. Five days later on
12
November 2003 the applicant signed the consumer agreement with the
respondent for the supply of electricity to the same affected
plot
Kraalkop 23. The next day on 13 November 2003, a dispute arose
between the supplier and the consumer, in other words, the respondent
and the applicant respectively. The respondent required the
applicant to pay an additional amount of
R130 000,00 to top up his deposit of R70 000,00. The applicant
refused to fork out a cent more. It is that dispute which I have
to
grapple with in these proceedings. Now that I have stated the
background, I proceed to examine the facts.
[19] As regards the first requisite, it is incumbent upon the
applicant to prove that he has a
prima facie
right worthy of
legal protection. The right he seeks to protect by the interim relief
he seeks does not have to be perfectly crystal.
It needs not be a
clear right. It may be open to some doubt, but it must have some
properties which at a glance resemble the properties
of a right. Mr
Hefer’s argument that:
“
Die beweerde clear right synde ‘n voorvereiste vir
die toestaan van ‘n finale interdik van die applikant is om die
minste te
sê uiters verwarrend en te betwyfel”
is with respect, an incorrect point of departure. What the applicant
seeks is an interim and not a final relief as Mr De Wet correctly
observed.
[20] A number of legal provisions have a bearing on the issue of the
applicant’s disputed right. The following are worth bearing
in
mind:
• Section 10(1) Electricity Act No. 41 of 1987 imposes a duty on
every licensee such as a municipality to supply electricity within
its district to every resident who applies for it, provided such
applicant is able to make satisfactory arrangements to pay for it.
• Section
10(2) Electricity Act No. 41 of 1987 provides that in the case where
a licensed municipality delays or refuses to supply
a resident
applicant with electricity such applicant may appeal to the
regulator.
• Section
22 Electricity Act No. 41 of 1987 provides that a licensee shall not,
except for reasons beyond his control, reduce or
discontinue the
supply of electricity to a consumer unless:
(a) the consumer is insolvent; or
(b) the consumer has failed to pay and to comply with a written
notice or demand calling upon him to do so within fourteen days.
• Section 11, Electricity Supply Regulations proclaimed in
Government Gazette on 22 June 1990 in terms of section 150(1) Local
Government Ordinance No. 8/1962 defines the word “occupier” as
any person actually residing on the property or premises without
taking into account the right of occupation of such person.
• The
same section defines the word “consumer” as any person using
electricity supplied by the municipal council or if there
is no such
person, the owner of the premises.
• The
same section defines the words “consumer agreement” as a document
to be completed and signed by the consumer on a form
as determined by
the council from time to time in accordance with the council’s
financial or other regulations.
• The
same section defines the word “owner” in relation to immovable
property as, among others, the occupier, where the owner
does not
occupy the property.
• The
same section defines the word “premises” as any building or any
other structure together with the land on which it is
situated.
• Section
3 of Electricity Supply Regulations provides that no electricity
shall be supplied to an electrical installation unless
and until the
owner or consumer of the premises has completed the consumer
agreement on a form prescribed by the council.
• Section
5 of the Electricity Supply Regulations provides that the council may
upon termination of any consumer agreement enter
into a new consumer
agreement with any prospective consumer in order to make provision
for the continuation of the supply.
• Section
6 of the Electricity Supply Regulation provides that every applicant
for a supply of electricity shall deposit with the
council a sum of
money as the council may determine.
[21] Section 10(1), Electricity Act No. 41 of 1987 provides that
every licensee, in other words the respondent in this instance,
shall
supply electricity up to a certain limit to every applicant who is in
a position to make satisfactory arrangements for the
payment of the
electricity consumed. The wording of this section is cast in
peremptory terms. The licensee shall supply electricity
to every
applicant. The crux of the enquiry is whether or not the applicant
is financially able to make satisfactory arrangements
for the payment
of the supply he requires. If the applicant in the opinion of the
electricity supplier is not able to make satisfactory
arrangements,
the supplier is entitled to disapprove the application for the
consumer agreement as proposed by the applicant concerned.
That
happens to be the only criteria for turning down the application for
the supply of electricity. Once a resident applicant
has furnished a
municipal council with the necessary documents such as his identity
document; has paid the required deposit; has
completed and signed the
prescribed form, the consumer agreement binding upon the licensed
municipality comes into existence.
[22] It follows from the above that the electricity supplier cannot
on any other ground refuse to supply electricity to anyone who
requires it. In the instant case the ability of the applicant to pay
for the electricity was never questioned. The query was belatedly
raised after the consumer agreement had been concluded. It is not
the respondent’s case that the applicant has failed to make
satisfactory arrangements for the payment of the anticipated huge
electrical power consumption. The basis of the respondent’s refusal
to supply electricity to the applicant here seems to be this:
You live on the plot Kraalkop 23. You are an employee of the owner
of this plot. Your employer is indebted to me in a huge sum
of
money. You know the owner of this plot is unable to pay his debt,
after all you are the financial manager of his business enterprise.

You signed an agreement with your employer which purports to be a
lease agreement. You see, the whole transaction is not a genuine
lease agreement, but a cunning scheme. Your scheme is designed to
aid your employer to evade payment of its debt to me. You have
to
pay an extra amount to bring the total deposit to R200 000,00 so that
your employer can again be supplied with electricity.
[23] It is crystally clear that the respondent’s refusal to supply
the applicant with electrical power was founded on an incorrect
premise. The respondent is steadfast in his refusal. Its
functionaries refuse to see the applicant as a consumer in his own
right.
Instead they see him as nothing but a disguised front of the
close corporation, the respondent’s debtor. Such a stance is
legally
indefensible. It is wrong to equate the applicant to the
close corporation. He applied in his personal capacity for the
supply
of electricity and not in the representative capacity as the
financial manager or agent of the close corporation. The fact that he
is working for the close corporation, the fact that he is living on
the same premises in respect of which the debt relates, and the
fact
that he has in terms of the lease agreement taken over the same
business previously conducted by the close corporation, are
irrelevant. It is equally irrelevant as to where the applicant got
the deposit of
R70 000,00 from. The applicant paid the money, not on the
electricity account of the close corporation as Mr Hefer
suggested,
but on his own new electricity account. He and not the
close corporation is responsible for the payment of the electricity
to be
supplied in connection with this new account.
[24]
In casu
the applicant provided the required documentation
in terms of section 3 of the regulations. He paid he required
deposit in terms
of section 6 of the regulations. He completed the
prescribed form in terms of section 3 of the regulations. He signed
such form
as the regulation required. It will be readily appreciated
that by causing the applicant to sign the consumer agreement, the
respondent
thereby acknowledged that the applicant was in a financial
position to comply with the conditions of the periodic supply. These
various acts brought into existence a valid consumer agreement as
defined in section 1 of the regulations. Upon signing the prescribed
form the applicant became a consumer entitled to demand the supply of
electricity from the respondent. The consumer agreement binds
the
respondent. It being the case, the respondent is obliged to supply
the applicant with electricity. The respondent had to supply
the
electric energy needed without attaching any further strings. It
follows, therefore, that a new condition for the immediate
payment of
an extra deposit was imposed on the applicant in violation of section
6(2) of the regulations. It is impermissible to
deprive a consumer of
the electricity supply because he resides on the premises owned by a
defaulting consumer whose supply has been
discontinued. Similarly,
it is impermissible to deprive the consumer of the supply because he
is an employee of such defaulting
consumer. These are the two
underlying reasons for the respondent’s reservation concerning the
lease agreement. It appears that
if the applicant was a complete
outsider with no such current ties with the close corporation, the
respondent would probably not
have had any such objections or doubts
about the lease agreement.
Having scrutinized the facts of this case and the various pieces of
the law as more fully set out in paragraph [20]
supra
, I have
come to the conclusion that the applicant has a
prima facie
right created by section 10(1), Act No.41 of 1987, and fortified by
its regulations. The peremptory tone of section 10(1), the fact
that
an occupier does not have to prove any occupational right or title in
respect of the property where the supply is required,
vide
section 1 of the Electricity Supply Regulations, the significance of
the applicant’s signature on the prescribed form,
vide
section 3 of the Electricity Supply Regulations, the definition of a
consumer and the definition of a consumer agreement in section
1 of
the Electricity Supply Regulations, all reinforce the consumer’s
right. In my view the applicant has established the first
requirement of an interim interdict.
[25] The applicant must also prove that the respondent has actually
committed an injury to his right. The applicant works for the
close
corporation. His livelihood is dependent on the business operations
of the close corporation. His economic right is therefore
inextricably intertwined with the business operations of his
employer. The disconnection of the electricity supply to the
applicant’s
employer signalled a serious threat to his livelihood.
However, such disconnection in itself constituted no violation of his
right.
At that stage the applicant did not have any right
enforceable against the respondent. Therefore, it is not for
applicant to complain
that the disconnection of the supply to the
close corporation was illegal. What really infringed his right was
the respondent’s
later refusal to supply the applicant with
electricity despite the consumer agreement he signed. What happened
on 13 November 2003
when the applicant was called upon to furnish
extra deposit, indicates beyond any doubt that the respondent was
prompted to adopt
such a punitive attitude by a desire to hold an
innocent consumer responsible for the arrears of the guilty consumer.
[26] The respondent’s refusal is unjustified and wrongful. There
is virtually nothing illegal about the lease agreement concluded
by
the applicant and the close corporation. The respondent’s refusal
to recognise and respect the applicant’s lawful business
venture
infringes the applicant’s economic right. Moreover, the
applicant’s family resides on the same plot. This was not a
new
averment made for the first time in the replying affidavit. The
applicant made it clear in his founding affidavit that he resided
on
the same plot. The respondent’s refusal to supply electricity to
the plot in question on account of the plot owner’s default
violates the applicant’s social right as well. The law forbids the
respondent from punishing every occupier of those premises
by reason
of the arrears owing by the property owner, the close corporation
which by its very nature does not physically occupy the
said land or
any structure thereon. I am of the view that the applicant would
suffer irreparable harm unless the respondent supplies
him with
electricity. If the close corporation benefits, and it surely will,
that can only be a consequence of the lease agreement
which is a
distinct and separate transaction. It does not concern the
respondent, it does not saddle the respondent with any burden.
It is
a completely different jurisdic act which does not jeopardize the
right of the respondent as against the close corporation,
but
primarily protects the economic and social interest of the applicant
and, in a secondary way, ultimately also safeguards the
business
interests of the respondent to a lesser extent. In my view the
applicant was well within his rights to do everything he
could within
the parameters of the law to protect his own interest by safeguarding
the interest of his employer as well.
It seems to me more probable than not that the applicant was required
to pay a deposit of R70 000,00 on the basis of the past power
consumption of the plot-owner’s enterprise. The amount is almost
equal to R78 000,00 which is representative of an average consumption
over three months. I am inclined to believe that whoever came with
the amount of the deposit the applicant had to pay must probably
have
gleaned the information from the electricity account of the
enterprise in order to come up with such a similar bottom-line
figure.
Therefore I find it improbable that the respondent’s
employee concerned Ms L. Esterhuizen did not know about the arrears
of the
close corporation at the time she attended to the applicant
and helped him to sign the consumer agreement. The applicant must
have
pointed out that he did not require a new electricity power line
to the plot, since there was already an existing electricity power
line to the same plot, but in the name of the close corporation,
whose supply had been discontinued.
[27] Nothing of significance turns on this point. It is really not
an issue. The object, purport and spirit of the relevant legislation
and its regulation are perfectly clear. All the applicable provisions
thereof are framed in a language that is glaringly generous
to an
individual who needs to be supplied with electricity by an
electricity service provider. An electricity supplier such as a
municipality is purposefully well positioned to function as an end
station where the members of the public legitimately expect to
access
all essential services provided by their democratic government. As I
see it a local government is a delivery vehicle of some
sort through
which government services and noble policies such as “batho pele -
people first” have to be rendered. The underlying
purpose is to
make a difference in the lives of the governed so that we can all
enjoy a better life. The spirit of generosity consciously
and
purposefully enveloped in those legal provisions should not be
frustrated by unjustified administrative decisions and actions.
A
local government which parades a junior employee in its front office
to help members of the public should not lightly be let off
the hook
when it later seeks to rely on lack of authority on the part of such
a junior employee. Such a fanciful argument can only
undermine the
good intentions of the lawmaker and frustrate the consumers of this
important amenity called electricity. The spirit
of the law clearly
calls upon the local municipalities to adopt liberal instead of
obstructive attitudes in implementing the legal
provisions relating
to electricity.
[28] As I have already said elsewhere earlier in this judgment, the
respondent does not contend that the applicant was not in a position
to make satisfactory arrangements for the payment of the electrical
power he needed. It is also not disputed by the respondent that
the
consumer agreement was concluded between the applicant and the
respondent. The respondent’s only defence to the applicant’s
case apparently is that the respondent was entitled to discontinue
the electricity supply to the close corporation and that the
respondent
is entitled to keep the supply line to the close
corporation disconnected until the outstanding municipal account has
been settled.
But we now know that such outstanding account does not
relate to Kraalkop Plot only, but also to another property of the
close corporation,
Riverside Plot. In addition to all this, it
behoves to remark that each of these two outstanding accounts has
included on it certain
components of municipal service charges which
are non-electric in nature,
vide
SENEKAL
INWONERS-VERENIGING v PLAASLIKE OORGANGS-RAAD
,
supra
by Van Coller, J.
The stand off between the respondent and the close corporation cannot
be allowed to harm the rights of every individual prospective
consumer who dwells on the plot. In my view the applicant has
established a second requirement of the interim relief he seeks.
The
respondent’s action has already caused harmful injury to his right.
Such harm may become irreparable. His apprehension of
such
impending harm is reasonable.
[29] It is also incumbent upon the applicant to show that the balance
of convenience favours the granting of the interim relief sought.
In
the case of
OLYMPIC PASSENGER SERVICE (PTY) LTD v RAMLAGAN
1957 (2) SA 382
(D&CLD)
the words of Holmes, J, as he then
was, were paraphrased as follows at
382D-E
:
“In those intermediate cases of applications for interim interdicts
the applicants’ prospects of ultimate success may range all
the way
from strong to weak, the Court, upon proof of a well grounded
apprehension of irreparable harm and there being no adequate
ordinary
remedy, may grant an interdict – it has a discretion to be
exercised judicially upon a consideration of all the facts.
Usually
this will resolve itself into a nice consideration of the prospects
of success and the balance of convenience – the stronger
the
prospects of success, the less need for such balance to favour the
applicant; the weaker the prospects of success, the greater
the need
for the balance of convenience to favour him.”
The judicial process of weighing the prejudice to the applicant, if
the interdict is withheld against the prejudice to the respondent,
if
the interdict is granted – is sometimes called the balance of
convenience. See
ERIKSEN MOTORS WELKOM LTD v PROTEA MOTORS
(WARRENTON) AND ANOTHER
1973 (3) SA 685
(A) at 691E
per Holmes, JA.
Meanwhile,
the applicant as a lessee to the close corporation had to make ends
meet by making use of diesel generators to supply power
to the plot.
Doing so appears expensive and uneconomic in comparison to using the
conventional electrical power. The generators
were not designed to
operate non-stop like a transformer. The incubated chicken eggs do
not hatch unless they continuously receive
adequate heat. Without
adequate and constant electric heating supply, there is always the
danger of the embrios perishing prematurely.
When the embrios
perish, there will certainly be some irrecoverable loss.
In case the eggs do not hatch as expected, the enterprise leased by
the applicant will not be able to provide chickens to the chicken
farmers in terms of the supply contracts. Such breach may lead to
several huge claims against the enterprise to the detriment of
its
workforce as well.
[30] Needless to say that the applicant’s livelihood will also be
imperilled if the chicken operations of the close corporation
can no
longer be carried on. His direct interest or stake in the business
of the close corporation will obviously also be in jeopardy.
A
number of workers who are in the employ of the same enterprise whose
interest are also under threat will loose their jobs should
their
employer be placed in liquidation and should the applicant’s lease
be undermined by the respondent’s refusal to supply
him with
electricity.
[31] On the other hand, there will be no prejudice or risk for the
respondent if the respondent supplies electricity to the applicant
in
the meantime. The following factors illustrate the point. In the
first instance the applicant has paid a substantial deposit
to the
respondent which is enough to cover the electricity consumption of
the enterprise for approximately three months. In the
second place,
the respondent retains the mighty statutory power to discontinue the
supply to the applicant immediately should he
fail to pay his
electricity bill regularly.
Vide
section 11 Electricity
Supply Regulations. In the third place, the respondent’s ordinary
civil remedy to sue the defaulting close
corporation remains intact
and available for the recovery of the debt owing by the close
corporation without depriving the applicant
of an essential amenity
to which he is entitled.
[32] On the strength of all these considerations, I have reached the
conclusion that the balance of convenience preponderantly favours
the
applicant. Therefore the applicant has established the third
requisite.
[33] In the final analysis, it is also incumbent upon the applicant
in the proceedings of this nature to prove that there is no other
satisfactory remedy available to him. The respondent is the sole
electricity service provider in the area where the applicant lives.

The monopoly makes the applicant entirely dependent on the respondent
for the electricity supply. There is virtually no competitor
to whom
the applicant can turn for the supply of electricity. The applicant’s
use of the generators was a short term solution to
the problem. As I
understand, the generators had always been there prior to the
disconnection of the supply to the close corporation.
However, they
were used temporarily as backup equipment in emergency situations.
After the disconnection the generators were used
as a interim measure
to generate the much needed power. They were never intended to be a
permanent fixture of the business operations.
I have already
indicated some of their prohibitive disadvantages. The electric power
supply by the respondent still remains the
preferred source of
electric energy for many reasons. The appeal procedure for the
intervention of the regulator appears to be a
cumbersome route to
follow regard been had to the perishable nature of the business
operation we are here dealing with. The regulator’s
intervention
would not have provided a speedy effective and satisfactory remedy in
my view. The absence of any meaningful ordinary
relief justifies the
launching of these urgent proceedings.
[34] In my view the applicant has established the forth requisite of
an interim relief sought.
[35] In the case of
FREE STATE GOLD AREAS v MERRIESPRUIT (OFS)
OLG MINING CO. LTD AND ANOTHER
1961 (2) SA 505
(W) at
524D,
Williamson J said:
“
No onus rests on the respondents to establish any
fact or facts in order to negative the applicant’s right to an
interdict. It
is however clear that the Court has a discretion to
grant or refuse an interdict.”
Overall, I am satisfied that the applicant has on a balance of
probabilities made out a case for the granting of an interim relief
as set out in the notice of motion. I can see no reason why I should
not exercise my discretion in favour of the applicant regard
been had
to the peculiar circumstances of this case.
[36] Accordingly
the application is hereby granted with costs.
________________
M.H. RAMPAI, J
On behalf of Applicant:
Adv. P.J.T. de Wet
instructed
by
Symington
& De Kok
On
behalf of Respondent:
Adv. J.J.F. Hefer
instructed
by
Rosendorff
& Reitz Barry
scd