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[2024] ZAFSHC 160
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Harrismith Intabazwe Tsiame Residents Association (Pty) Ltd ("HIT") and Others v Maluti-A-Phofung Local Municipality and Another (1751/2024) [2024] ZAFSHC 160 (21 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no:
1751/2024
In
the matter between:
HARRISMITH
INTABAZWE TSIAME RESIDENTS
1
st
Applicant
ASSOCIATION
(PTY) LTD ("HIT")
(Reg
no: 2019[…])
WILHELM
KONIG
2
nd
Applicant
MAJOR
BRICKS (PTY) LTD
3
rd
Applicant
(Reg
no: 1986[…])
CHRISTO
LUDWIG LIEBENBERG
4
th
Applicant
And
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
1
st
Respondent
AMOS
GOLIATH, ACTING MUNICIPAL MANAGER
2
nd
Respondent
CORAM:
JP DAFFUE J
URGENT
APPLICATION
HEARD
ON:
05 APRIL 2024
ORDERS
GRANTED
ON:
10 APRIL 2024
REASONS
DELIVERED
ON
:
21 MAY 2024
These
reasons were handed down electronically by circulation to the
parties' representatives by email and release to SAFLII. The
date and
time for hand-down is deemed to be 13h00 on 21 May 2024.
Introduction
[1]
On 5 April
2024 I heard an urgent application for the restoration of electricity
supply to the premises of third and fourth applicants.
On 10 April
2024 I granted an order for restoration of the electricity supply and
stated that the reasons for my or er would be
delivered in due
course. Contrary to the general rule that the successful party is
entitled to their costs, I ordered the first,
second and third
applicants to pay the costs of the opposed application, including the
respondents' costs in opposing the application.
These are my reasons.
[2]
The
application was brought in terms of the
mandament
van spolie.
The
old Roman remedy,
spoliatus
ante omnia restituendus est
still
applies to this day in South African law. In terms hereof anyone
unlawfully deprived of property is entitled to be restored
to
possession before the court will decide any competing claims to the
property. The common law has taught us that even a thief
is entitled
to the protection of the
mandament
van spo/ie.
Cameron
JA put it as follows in
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others:
[1]
'Even
an unlawful possessor
-
a
fraud, a thief
or a robber
-
is
entitled to
the
mandamenfs
protection.
The principle is that
illicit deprivation must be remedied before the Courts will decide
competing
claims
to
the object or property.'
The
Parties
[3]
The
first applicant is the Harrismith lntabazwe Tsiame Residents
Association (Pty) Ltd (HIT), duly registered as a non-profit
organisation,
who prides itself of assisting its members in
litigation against 'the defunct Municipality of Maluti-a-Phofung'
(the municipality).
[2]
[4]
The
second
applicant
is
Mr
Wilhelm
Konig,
chairperson
of
HIT,
he
being
'personally involved' in
the
'attempt
to
resolve
the
accounting
mes
_
s'
of
the
municipality.
He professes to be well-acquainted with the
'
workings
and business'
of
the third and fourth applicants. HIT has declared various disputes
with the municipality on
behalf
of
•
members,
inclusive of the third applicant, in the past.
[3]
[5]
The third
applicant is Major Bricks (Pty) Ltd, a
registered
company with
business address situated at Portion 22, Farm Dorps Gronden,
Harrismith. The fourth applicant is Mr Christo Ludwig
Liebenberg, an
adult businessman residing at Sunnymead Farm, Harrisniith. Both the
third and the fourth applicants are members
of HIT.
[6]
The first
respondent is cited as the Maluti-a-Phofung Local Municipality. Its
municipal manager, Mr Amos Goliath, is cited as the
second
respondent.
The
relevant history
[7]
The
applicants, and particularly first, second and third applicants,
referred to disputes pertaining to historic debts. Mr Konig
insisted
that 'the disputes are real and are of a similar nature across all
HIT members'
.
[4]
[8]
The applicants
are aggrieved by poor service delivery endemic in Harrismith and
surroundings
and also
complained about the costs of refuse removal and the fact that HIT
members have to attend to removal of refuse themselves.
The complaint
also related to the lack of water in Harrismith due to a lack of
maintenance, potholes terrorising motorists and
power outages. These
complaints are totally irrelevant to the present dispute and have
apparently been
raised
with one
intention
only, and that
is to portray the municipality in a bad light.
[9]
On
8 June 2022 the municipality sent a termination notice to the third
applicant pertaining to its electricity supply. The disputes
were
recorded whereupon the municipality 'ostensibly abandoned its
decision to terminate the supply'.
[5]
Reliance
is placed on the third applicant's dispute raised in writing on 3
July 2023, dealing with so-called historic debts and
the recording of
incorrect outstanding amounts.
[6]
This
dispute will be dealt with hereunder in detail when I consider costs
to be awarded.
[10]
The
applicants alleged that on 25 March 2024 and without any notice to
the applicants, the municipality had terminated the electricity
supply to the third and the fourth
applicants'
premises.
They
alleged
that
the
municipality's
actions
were
unlawful.
[7]
I shall show later herein that the fourth applicant's electricity
supply was not disconnected by the municipality, but that a technical
problem caused the discontinuance of the electricity supply. I shall
deal with the alleged payment by the third and fourth applicants
and
the dispute raised by the third applicant hereunder when exercising
my discretion in respect of the costs of the application.s
[11]
The
application was issued out of this court on 28 March 2023. The
respondents were informed that the applicants would move an urgent
application on Friday, 5 April 2024 at 10h00. They had to file their
answering affidavits by 17h00 on Wednesday, 3 April 2024.
The
applicants agreed to an exchange of papers via email.
[12]
I informed the
parties that I would be in Harrismith on 5 April 2024 to deliver
judgment
in
a
criminal matter unrelated to the present application
.
As the judge
on duty during the April court recess, I made myself available to
hear the application by way of MS-Teams between 12h00
and 13h00 that
day. The parties were also requested to send all relevant documents
pertaining to the application to my secretary
by email. At about
22h00 on Thursday evening, 4 April 2024 and whilst I was still in the
process of finalising my judgment in the
criminal matter, I received
the respondents' answering affidavit via email.
[13]
On Friday
morning, 5 April 2024 and whilst delivering judgment in the criminal
matter, the replying affidavit and both parties'
heads of argument
were sent to my secretary by email. I finished judgment in the
criminal case at about 12h00 whereupon arrangements
were made
immediately for the MS-Teams' hearing to start. By then I did not
have an opportunity to read the replying affidavit,
or the heads of
argument. After considering the oral arguments of both parties, I
reserved judgment and adjourned at approximately
13h45. By then I had
to drive back to Bloemfontein immediately as two other urgent
applications had to be adjudicated later that
afternoon. It can be
seen from this that I did my utmost to accommodate the parties.
The
mandament van spolie
[14]
The legal
principles pertaining to the
mandament
van
spolie
and
as applicable to termination of electricity supply are clear and need
not be considered in any detail. Although trite, the three
characteristics are the following:
a.
it is a
possessory remedy;
b.
it is an
extraordinary and robust remedy; and
c.
it
is a
speedy
remedy.
[8]
[15]
In
Blendrite
(Pty) Ltd and Another v Moonisami and Another
the
Supreme Court of Appeal provided the
following
summary:
[9]
'The
mandament
van spolie
is
designed to be a robust, speedy remedy which serves to prevent
recourse to self-help. The sole requirements are that the
dispossessed
person had
'possession
of a kind
which warrants the protection accorded by the remedy, and that he was
unlawfully
ousted'.
All that
must be proved is the fact
of prior possession and that
the
possessor was
deprived of that possession unlawfully. Unlawfully here means without
agreement or recourse to law.'
[16]
It
is therefore trite: the object of the relief sought under the
mandament
van spolie
is
to restore the
status
quo ante
of
the unlawful action. The rule
spoliatus
ante omnia restituendus est
is
absolute and a relatively few recognised defences may be put up by
the spoliator.
[10]
Once
possession has been restored, a dispute as to the legality of any
right relied upon could be considered.
[17]
The
Constitutional Court summarised the applicable principles pertaining
to the
mandament
van spolie
in
Ngqukumba
v Minister of Safety and Security (Ngqukumba)
as
follows:
[11]
"[1
0]
The essence of the mandament van spolie is the restoration before all
else of unlawfully deprived possession to the
possessor. It finds
expression in the maxim spoliatus ante omnia restituendus est (the
despoiled person must be restored to possession
before all else)
.
The spoliation
order is meant to prevent the taking of possession otherwise than
in
accordance
with the law.
Its underlying philosophy is that no one should resort to self-help
to obtain or regain possession. The main purpose
of the mandament van
spolie is to preserve public order by restraining persons from taking
the law
into
their own
hands and by inducing them to follow due process.
[11]
.......
.
[12]
A spoliation order is available even against government entities for
the simple reason that unfortunately
excesses by those entities do
occur. Those excesses, like acts of self-help by individuals
,
may lead to
breaches of the peace: that is what the spoliation order, which is
deeply rooted in the rule of law, seeks to avert.
The likely
consequences aside, the rule of law must be vindicated. The
spoliation order serves exactly that purpose.
[13]
It matters not that a government entity may be purporting to act
under colour of a law, statutory or otherwise.
The real issue is
whether it is properly acting within the law. After all, the
principle of legality requires of state organs always
to act in terms
of the law.
All that the
despoiled person need prove
is
that-
(a)
she was in
possession of the object; and
(b)
she was
deprived of possession unlawfully.'
[18]
In
Ngqukumba
the
Constitutional Court disagreed with the Supreme Court of Appeal which
held that the
mandament
van.spolie
could
not have succeed insofar as the return of the vehicle to the
applicant would mean that the court would be prepared to order
delivery of the vehicle to a person who may not lawfully possess
same. The Constitutional Court dealt with this issue, in finding
that
a conclusion as to whether the vehicle may be lawfully possessed
could only be reached after a proper enquiry on the merits
of the
lawfulness of the applicant's possession and concluded as
follows:
[12]
Those merits are
irrelevant in proceedings
for
a spoliation order: the despoiler must restore possession
before
all else.
Self-help
is so repugnant to our constitutional values that where it has been
resorted to in despoiling someone, it must be purged
before any
enquiry into the lawfulness of the possession of the person
despoiled.
Earlier
I made the point that restoration
of
possession may even be to a person who might eventually be shown to
be a thief or robber.'
The
right to electricity supply
[19]
I
have had occasion to deal with
the
restoration
of electricity supply in
Harrismith
·
Intabazwe
Tsiame Residents Association (Pty) Ltd and Others v Maluti-A
Phofung Local Municipality and Another
[13]
(the
2022 judgment). I concluded in that judgment with reference to
Eskom
Holdings SOC Ltd v Masinda (Masinda)
,
[14]
Impala
Water Users Association v Lourens NO and Others (Jrripala)
[15]
and
Makeshift
1190 (Ply) Ltd v Cilliers
[16]
that
the consumers' rights to the supply of electricity in that case were
incidental and so closely connected to their rights to
occupation of
the particular business
premises
that
these
could
be
considered
as
the
subjects
of
quasi-
possessio.
[17]
Therefore, spoliation
of
such
quasi-possessio
were
acts
of
spoliation
in relation
to
the
respective
premises.
The
same
principle
applies
in
casu.
[20]
In
Mkontwana
v Nelson Mandela Metropolitan Municipality
[18]
(Mkontwana)
the
Constitutional Court held that electricity is a component of basic
services and consequently, municipalities a e constitutionally
and
statutorily obliged to provide their residents with water and
electricity, this being their public duty. This was also confirmed
in
Joseph
and Others v City of Johannesburg and Others (Joseph).
[19]
The
court reiterated this public duty as
follows
in
Joseph:
[20]
‘
The
provision of
basic municipal services is a cardinal function, if not the most
important function, of every municipal government.
…. The
respondents
accepted that
the provision of electricity is one of
those
services
that
local government
is
required
to provide.
Indeed they
could not have contended otherwise. …Electricity
is one of the
most common and important basic municipal services and has
become virtually
indispensable, particularly in urban society.'
[21]
In order to
give effect toss 152, 153 and 156 of the Constitution, read with Part
B of Schedule 4 and Part B of Schedule 5, s 73(1)(c)
of the Local
Government: Municipal Systems Act 32 of 2000 (the Systems Act)
provides that a municipality
'must
ensure that
all members
of
the local community have access to at least the minimum level of
basic services'. Section 73(2)(c) of the Systems Act requires
that
municipalities should be financially sustainable and consequently,
Chapter 9 of
that Act regulates credit control and
·
debt
collection measures. Debt collection is a municipality's
responsibility as set out in s 96 of the Systems Act. Section 98
stipulates that a municipal council must adopt by-laws in order to
give effect to the municipality's credit control and debt collection
policy.
[22]
The
Electricity Regulation Act 4 of 2006 (the Electricity Act) was
promulgated to
inter
alia
regulate
the reticulation of electricity by municipalities.
[21]
The objects of the Electricity Act are contained in
s
2. The objects relevant for purposes
hereof
are to:
'(a)
achieve
the efficient,
effective,
sustainable
and orderly development
and operation
of electricity supply infrastructure in South Africa;
(b)
ensure
that the interests and needs of present and future electricity
customers and end users are safeguarded and met, having regard
to the
governance, efficiency, effectiveness and long-term sustainability of
the electricity supply industry within t e
broader
context of economic energy regulation in the Republic;
(c)
(d)
(e)
(f)
(g)
facilitate
a fair balance between the interests of customers and end users,
licensees, investors in the electricity supply industry
and the
public.'
[23]
It is also
apposite to mention the National Energy Act 34 of 2008 (the Energy
Act). The objects of the Energy Act are tabulated
in s 2. Some are
either directly or indirectly applicable
in
casu.
I
refer to the following:
ie
to
'ensure uninterrupted supply of energy to the Republic; promote
diversity of supply of energy and its sources; provide for optimal
supply, transformation, transportation, storage and demand of energy
that are planned, organised and implemented in accordance
with a
balanced consideration of security of supply, economics, consumer
protection and a sustainable development;
facilitate
energy access for improvement of the quality of life of the people of
Republic; ensure effective planning for energy
supply, transportation
and consumption; and contribute to sustainable development of South
Africa's economy.'
[24]
No doubt, the
right to access to electricity supply is not absolute. Non-payment by
electricity users impacts negatively on the
economy in general and a
supplier of electricity -
the
municipality
in
casu
- in
particular.
Evaluation
of the evidence and submissions by the parties in respect of the
requirements of the mandament van spolie
[25]
I shall only
deal with the
evidence and the parties' submissions pertaining to the requirements
of the
mandament
van spolie
under
this heading. The evidence and submissions considered in awarding
costs will be dealt with hereunder under the appropriate
heading.
[26]
Mr Botes
submitted that the third applicant was not in peaceful arid
undisturbed possession by virtue of its indebtedness and
consequently,
when the municipality disconnected its electricity
supply, it did not act unlawfully. He is wrong. The facts speak for
themselves:
electricity was disconnected in respect of the third
applicant without any prior and proper warning
.
The
municipality was not entitled to terminate the electricity supply in
the present factual matrix
.
[27]
The
municipality's by-laws were placed before the court in the 2022
judgment. Although there was a dispute in respect thereof, these
were
not again placed before me in this instance. The applicants raised
the by-laws for the first time in their replying affidavit.
The
applicants apparently accepted that a termination notice was sent
electronically to the email address of the third applicant's
former
director, but having referred thereto
,
mentioned
that the by-laws do not make provision for termination notices to be
sent electronically. On their version, only personal
service, service
at the place of residence or business, registered mail or certified
mail were acceptable. Annexures AA5 and AA6
[22]
to the answering affidavit are termination notices dated 14 February
2024 addressed to the third applicant at its business address.
The
respondents failed to prove that these notices were actually
delivered at this physical address
.
Adv
Wijnbeek submitted that the consumers were entitled to just
administrative action and that the municipality had acted contrary
to
the provisions of the Promotion of Administrative Justice Act 3 of
2000 (PAJA) in disconnecting the electricity supply without
any prior
warning and thus failing to afford the consumers adequate
pre-termination notices. He insisted that fairness dictated
that a
minimum of 14 days' notice
should
have
been given
.
[28]
I was
satisfied that no proper notice of termination had been given to the
third applicant, whether in terms of the municipality's
by-laws, or
PAJA. I do not deal with the fourth applicant's complaint at this
stage insofar as his position is different from that
of the third
applicant as I shall explain when I consider the award of costs.
[29]
The applicants
sought final relief, alternatively that a rule nisi be issued calling
upon the respondents to show cause on the return
date, why a final
order should not be made. Having considered the detailed affidavits
and heads of argument of the parties, I came
to the conclusion that
it would serve no purpose to issue a
rule
nisi
and
therefore a final order was issued
.
The applicants
proved the requirements of the
mandament
van spolie
and
I was satisfied that the municipality did not put up a recognised
defence. I agreed with Mr Wijnbeek's submissions referred
to the
previous paragraphs and consequently, I ordered the restoration of
the electricity supply.
[30]
The
order
that I
granted
should
not be
seen
as
a
carte
blanche
to the
third applicant, or any other defaulting consumers
to enjoy the
supply of electricity without
making
any payments to the municipality. I made the order to restore
electricity supply based on the trite principles relating to
the
mandament
van spolie.
The
municipality was not entitled to self-help. It failed to take
appropriate debt collection steps.
Costs
[31]
The
third applicant incorrectly alleged that it did not receive any
invoices from the municipality despite attempts to obtain these.
I
shall revert hereto. The following important allegation was made in
respect of the alleged payment of their accounts by both
the third
and fourth applicants. I quote
verbatim:
[23]
'25.
The issue can
certainly not be that of arrears in payment of electricity either.
25.1
By way of example and not to make the papers unnecessarily prolix, I
attach proofs of payments made by Fourth Applicant to
the First
Respondent marked as annexures
"WK5 -WK7".'
The
fourth
applicant's three payments in
the amount of
R1
600
each were received on
27
September 2023, 28 January 2024 and 26 February 2024
ex
facie
these
annexures. It is evident from the papers that the fourth applicant is
conducting a relatively small business. However, for
reasons that Mr
Konig did not properly explain, he failed to attach, for example,
proof of payment for October, November and December
2023.
[32]
It
is appropriate to deal with the fourth applicant's situation at
first. In doing so I shall consider the answering affidavit and
the
applicants' reply thereto. During oral argument there was a
discussion as to whether the dispute between the fourth applicant
and
the municipality had been settled. The respondents submitted in their
answering affidavit that the fourth applicant had withdrawn
'as an
applicant in this application'.
[24]
The
applicants placed on record that the fourth applicant was willing to
withdraw subject to a tender of costs and an undertaking
to restore
his electricity supply. I accept that the matter was not settled as
the municipality was not prepared to tender the
fourth applicant's
costs. However, I also accept the information as tendered from the
bar that the fourth applicant's electricity
supply had not been
disconnected, but that a technical problem had arisen which caused
the failure to supply electricity. I refer
in this regard also to the
email correspondence between the municipality and applicants'
attorney of 3 April 2024.
[25]
On all probabilities the electricity supply issue
raised
by
the
fourth
applicant
could have been solved easily, cheaply and without litigation. This
application which culminated in the eventual hearing
on 5 April 2024
was essentially brought to assist the third applicant. Little time
and effort was spent on the fourth applicant's
dispute. The whole of
the answering affidavit and all annexures thereto focused on the
third applicant's alleged indebtedness.
The same applies to a large
extent to the replying affidavit, the heads of argument and the oral
submissions.
[33]
More
importantly, for purpose of the adjudication of this application, and
in particular the costs order that I have made, no proof
of payment
was provided in respect of the third applicant's electricity supply.
In fact, it was not even suggested during argument
that the third
applicant had made any payments to the municipality recently.
After
dealing with the requisites for the
mandament
van spolie,
the
applicants stated that the HIT members' prejudice far outweighed any
prejudice that the municipality might suffer,
inter
alia
as
the '[M]embers tendered full payment of the monthly current account -
and
is in fact doing so'.
[26]
I
rejected that version as false insofar as it referred to the third
applicant. I reiterate that there is no proof of any recent
payments
by the third applicant as is evident from annexure AA3 to the
answering affidavit. The third applicant failed to respond
appropriately, as one would have expected, to the allegations in the
answering affidavit, supported by documentary evidence contained
in
annexure AA3.
[34]
The
third applicant alleged that it could not produce any bricks and had
suffered damages in excess of R300 000
[27]
since the termination of electricity supply on 25 March 2024,
ie
in
the period of only three days until 28 March 2024 when the founding
affidavit was deposed to. Based on this allegation, the monthly
income must then be ten times that amount, to wit approximately R3
million. It reiterated that it was not commercially viable to
manufacture bricks whilst using power provided by a generator as it
is simply unaffordable
as
its ovens use too much electricity.
[35]
The
third applicant had an obvious interest to know how much it was owing
and the municipality
was
obliged to provide regular and accurate accounts as set out in s
95(e)
of the Systems Act. The Constitutional Court confirmed this principle
in a case where the property was rented out in
Mkontwana.
[28]
I
quote:
'Fairness
requires a municipality to provide an owner of property with copies
of all accounts if the owner requests them.
The absence of
this requirement
would
render the
deprivation in this case procedurally unfair.
It is
accordingly
appropriate to
declare that
every municipality is obliged to provide copies of
monthly accounts in respect
of amounts owing for water and electricity by occupiers of property
where the owner is not the occupier
on the written request of the
owner.'
Obviously
in this case the properties are not rented out, but occupied by the
owners who are, no doubt, entitled to receive monthly
statements of
account.
[36]
Although
the first, second and third applicants were successful, I have grave
concerns about their
bona
tides.
I
granted a costs order against them contrary to the general rule
applicable. I considered several issues in the exercise of my
discretion. It is common cause that the municipality is in dire
financial straits, owing Eskom an amount of R 7.2 billion.
[29]
It
is well-documented that the m
u
nicipality’s
administration is in a mess as mentioned by Mr Konig, but that does
not relieve honest electricity consumers
to do their best to pay for
their consumption, even if they have to rely on estimates, or average
consumption,
in
the
absence of invoices.
[37]
In
its answering affidavit the municipality placed on record that
electricity supply to the third applicant is provided through
two
separate electricity meters. The disputed historic debt arose from
electricity supplied in terms of an old meter. The meter
was
disconnected pending the outcome of that dispute. Reliance was placed
on consumption and payment records of various consumers,
including
the third applicant, over the period from 1 July 2020 to 30 June
2023. Annexure AA2 represents the consumption records
of various
customers, including the third applicant, until June 2023 and
Annexure AA3 the payment records of various customers,
including the
third applicant for the financial years 2020/2021, 2021/2022 and
2022/2023. It is not the opportune moment to make
any finding on the
value to be placed on and/or the correctness of these documents, but
it is reiterated that these documents reflect
the third applicant's
failure to pay for electricity supply over this extended period. Mr
Botes exaggerated when he submitted that
the third applicant had not
paid a cent over the last two years. His client's own records dispel
such a submission.
[30]
I
accepted that the
payments
made by the third applicant during the above three financial years
ex
facie
annexure
AA3 differ from the figures provided by the municipality's deponent.
However, it is apparent that no
·
payments
had been received for the full 2022/2023 financial year on the
deponent's version as corroborated by annexure AA3. The
applicants
failed to deal properly with the documents annexed as annexures AA2
and AA3.
[38]
I
agree, as alleged in paragraph 14 of the replying affidavit, that
annexures AA2
and
AA3 do not constitute invoices, but repeat that the applicants failed
to respond meaningfully to them. The allegation that the
print,
quality and size of characters in the annexures
are
'so poor and small that applicants cannot really make anything of it'
is
relied
upon as a feeble excuse not to deal with the serious allegations
contained in the answering affidavit regarding third applicant's
indebtedness to the municipality. These documents
were
sent by email and if it was possible for me to increase the size of
the characters in the annexures, there was no reason why
the
applicants' legal representatives could not do the same. Instead of
admitting that third applicant had been using electricity
all the
time without paying, the old refrain was repeated,
ie
that
'it
is
common cause that nothing turns on annexures AA1 to AA3 as a formal
dispute
is
pending.
To take collection steps whilst the dispute is pending, is
unlawful'.
[31]
The
third applicant's tender to pay any arrear amount within 30 days once
the disputes have duly been resolved was a meek and poor
attempt to
show its
bona
tides.
These
were hollow words indeed, especially when I considered the allegation
that it was HIT's intention at all times 'to take [the
municipality's] hand assisting the latter back to financial
stability.' Also, the declaring of disputes on behalf of members
related
to
'certain
historic
disputes' which were regarded as 'real and are of a similar nature
across all HIT members.'
[32]
[39]
The
municipality attached two invoices issued to the third applicant for
February 2024 in respect of the two different meters as
annexures AA7
and AA8 to its answering affidavit. The billing date thereof is 15
March 2024. The charges for electricity in respect
of February 2024
are R172 731.23 and R 6 520.41 respectively. The total amounts due,
reflected in the two invoices, are R 3 224
950.52 and R 942 092.02
respectively.
Clearly
,
the
amounts
of
electricity
consumed
are
quite
excessive.
It
is
apparent that the third applicant is conducting business on an
enormous scale. Upon reading the replying affidavit, the inescapable
conclusion to which I arrived at was that the third applicant had no
intention to pay anything to the municipality until the 'pending
disputes dating from 2020' are resolved.
[33]
[40]
I repeat that
the first, second and third applicants failed to meaningfully respond
to the municipality's clear and unambiguous
allegation that a
cumulative amount in excess of R3.8 million is outstanding in respect
of the two new meters installed after the
old meter was disconnected
as a consequence of the historic dispute. They merely elected to rely
on the old dispute which has nothing
to do with electricity supply
through the
newly
installed
meters.
The
municipality
conceded
that
an
amount
of R7 865
063.23 in respect of the period until May 2020, the historic debt, is
in dispute. It did not disconnect the third applicant's
electricity
supply in respect of this historic and disputed debt. Its claim
against the third applicant is in respect of its consumption
and
payment records since installation of the new electricity meters
which have nothing to do with the historic debt. There can
be no
doubt that the third applicant was supplied with electricity in
excess of a few million rand over an extended period of time
to
enable it to carry on with its business operations, but that it
failed to pay any significant amounts to the municipality during
the
aforesaid period.
[41]
The
third applicant cannot carry on with its business operations whilst
using electricity for free. It and HIT have access to qualified
electricians, bearing in mind the order sought and granted. It would
be easy to calculate the electricity usage on a monthly basis
by
taking down the meter readings at the beginning and end of each and
every r:nonth to ascertain how much electricity was consumed
by the
third applicant. In fact, Mr Botha of the third appl
i
cant
contradicted himself in the written dispute filed on 3 July 2023.
Eventually, in the handwritten document attached to annexure
WK2, it
is mentioned that the
'whole
account'
was in dispute and because
'not
receiving
accounts' Mr Botha
'requested
a
detailed account of the past 3 years in order to correspond
(sic)
readings
with account.' Undoubtedly, the writer meant to refer to a
conciliation of the meter readings and electricity accounts
.
The
inescapable deduction from this is that the third applicant had taken
meter readings and should be in a position
to
state
exactly
what
was
in
dispute
in
respect
of
all
invoices
received
over
the period. It failed to do so, but blamed the municipality that its
administration was in shambles
.
I
indicated earlier that disputes have been raised earlier, but those
are in respect of historical debts. Any possible further disputes
have been raised so vaguely that it is impossible to gather what is
in dispute and what not. The first three paragraphs of Mr Botha's
letter of 3 July 2023 read as follows:
[34]
'I
refer to your
letter dated
08
June 2022
and
some recent
statements (see attached)
regarding
outstanding
amounts of R427 129
.
30,
etc
.
and
would hereby like to bring under your attention the following
:
1.
New ownership
of premises since
2020/1.
2.
We do not
agree with provided statements and hereby request detailed statements
with accurate monthly readings taken and clearly
showing debited and
credited
amounts from
01 January
2020
to date
.'
(emphasis
added)
Attached
to the letter of Mr Botha dated 25 March 2024
[35]
is an undated document that was allegedly handed in at the
municipality. The majority of the complaints therein relates to
irrelevant
issues. However, an admission was made that municipal
accounts were received, although not monthly and that 'they [the
municipal
accounts] do not always follow in chronological date
sequence'. The applicants' unequivocal version under oath
,
[36]
repeated
by Adv Wijnbeek during oral argument, that the third applicant did
not receive any invoices, is contradicted by the above
documentation
.
[42]
The
applicants' version that because the third applicant did not receive
invoices,
it
did not have to make any payment for electricity
usage is
unacceptable
in the present
factual matrix. I indicated in the previous paragraph that it had
been receiving invoices on its own version. It
has been earning
millions of rands in the previous financial years without paying the
municipality for elec ricity supply, save
for the relatively small
amounts evident from annexure AA3
·
.
The third applicant's morality is doubted. I am satisfied, having
considered the totality of the evidence and in particular the
third
applicant's failure to play open cards, particularly infailing to
deal at all with the municipality's records of non-payment,
that it
has been and is still sponging of the municipality
.
It has been
receiving electricity supply over an extended period with paying or
even offering to pay what it could
estimate
to be due
.
[43]
In my view an
error or omission by the municipality,
or even a
failure to render accounts regularly, did not relieve the third
applicant of its obligation to pay for electricity supplied
and
consumed. The evidence showed that it would be easy for the third
applicant, supported by Mr Konig and HIT, to ensure that
the
municipality was paid for electricity supplied and consumed based on
the meter readings, prescribed tariff, charges and fees
in respect of
the applicable premises. If the third applicant showed that it had
paid amounts to the municipality over the last
three years, based on
its estimates of electricity consumption, that would go a long way to
prove its bona tides, but unfortunately
it failed to make any
substantial payments
ex
facie
the
documents presented to me.
[44]
The applicants
accept that the third applicant, to wit Major Bricks (Pty) Ltd,
registration number: 2013[…], is the relevant
consumer.
However, Mr Valks, the sole director of the company
ex
facie
annexure
WK1 of the founding affidavit, should also be blamed for the
confusion created in the email attached as WK13 to the replying
affidavit. In terms thereof he informed Mr Danie Truter of Eskom that
the 'new owner' was Brick Mecca CC, but provided his personal
email
address. This was done on 2 July 2021. He carbon-copied the previous
director of third applicant, Mr Gau, but not any municipal
official.
There is no indication that Mr Valks and/or anyone of the third
applicant company presented the municipality with the
correct
details.
[45]
The first and
second applicants are entitled to assist their members, the first
applicant being a civic organisation. However, in
order to do so and
embark upon litigation, they should ensure that their members are
bona fide
and not
guilty of unreasonable and/or obstina e conduct. The refrain of being
entitled to resist payment because an old dispute
has not been
settled does not hold water.
It is
unreasonable in the present factual matrix
.
[46]
The
Supreme Court of Appeal delivered a judgment on 18 April 2024,
ie
after
I heard argument in this matter. I refer to the unanimous decision of
that court in
City
of Tshwane Metropolitan
Municipality
v
Vresthena (Pty) Ltd and Others
[37]
.
It
also referred to the two Constitutional Court judgments referred to
earlier in this judgment, to wit
Mkontwana
v
Nelson Mandela Metropolitan
Municipality
and
Joseph
and Others
v
City of Johannesburg and Others.
[38]
Although
the Supreme Court of Appeal confirmed the obligation of
municipalities to provide electricity to their residents as a matter
of public duty, it emphasised that there is a reciprocal obligation
on residents to settle their dues, failing which municipalities
have
a constitutional duty to implement debt collection measures in order
to ensure that unpaid municipal debt is reduced by legitimate
means.
[39]
It criticised the
relief granted by the High Court and pointed out several shortcomings
in the court a
quo's
judgment.
I quote the fourth and the last grounds relied upon by the Supreme
Court of Appeal in
Vresthena:
[40]
'
...
Fourth, the
restoration of electricity without the provision for the payment of
arrears creates an anomaly .
.
.
Lastly, the
chilling effect of the order is that it compels the City to act
contrary to the prevailing law and its constitutional
mandate:
it
must continue to supply electricity to users who are in arrears and
have a history of non-payment for the foreseeable future.
and at
the
same
time the City is
denied
the statutory power to terminate services without approaching a court
to obtain leave to do so
.
These characteristics
of the order demonstrate that its effect is final in nature. At the
very least, for reasons I traverse below,
this is one of those cases
where the relief sought ought to have never been granted, and the
order is appealable on this basis
too.' (emphasis added)
[47]
I am satisfied
that the facts in this case differ from the facts in the 2022
judgment. The parties showed in that case that they
had filed proper
disputes worthy of being considered before their electricity
connections were terminated. If the applicants are
allowed to
continue
raising
disputes in
respect of each and every account rendered, the third applicant will
be allowed to indefinitely consume electricity
without paying. This
court is not prepared to allow this to happen. I trust that the costs
order granted herein will go a long
way to ensure that the third
applicant will start paying for its electricity consumption.
[48]
I
dealt with the fourth applicant's participation in the litigation
earlier and do not intend to repeat that.
[41]
It would be extremely difficult, if not impossible, to carve out an
order in terms whereof the municipality should pay the fourth
applicant's costs of the application. He played an insignificant role
in this application as I have indicated. He was represented
by HIT.
The same attorneys and counsel appeared for all the applicants. He
could have dealt with his dispute in a separate application
if really
necessary,
but
decided
to
make
common
cause
with
the
first
three
applicants
and
thereby jumped in the same bed. I decided not to hold him liable for
the costs of the municipality, but in the same breath,
I was not
prepared to grant a costs order in his favour. Another aspect was
also considered. It would be a nightmare on taxation
for a registrar
to establish for which fees and expanses the municipality should be
held liable if a separate costs order were
to be made in favour of
the fourth applicant. The order that I made is in my view fair to the
parties.
[49]
I considered
granting attorney and client costs as well as the costs of two
counsel as requested by Mr Botes, but decided not to
do so. No
special grounds existed to issue a punitive costs order, particularly
bearing in mind that the municipality has been
relying on self-help
without following a fair process, either in terms of its by
laws, or in terms of the principles pertaining
to administrative
justice.
JP
DAFFUE J
On
behalf of the Applicants:
Adv
DH Wijnbeek
Instructed
by:
Andreas
Peens Attorneys
c/o
Honey and Partners Inc
BLOEMFONTEIN
On
behalf of the Respondents:
Advv
FW Botes SC and E Braga
Instructed
by:
Niemann
Grobbelaar Attorneys
c/o
Hendre Conradie Inc
(Rossouws
Attorneys)
BLOEMFONTEIN
[1]
2007
(6)
SA
511
(SCA)
para
21.
[2]
Founding
affidavit
,
para
7.
[3]
Ibid,
para
2.
[4]
Founding
affidavit, para 18.1.
[5]
Founding
affidavit,
para
19.
[6]
Annexure
WK2,
pp
29
-32.
[7]
Founding
affidavit,
paras
22
& 23.
[8]
DG
Kleyn
,
Die
Mandament
van
Spo/ie
in
die
Suid-Afrikaanse
Reg
(unpublished
LLD
theses,
University
of
Pretori
a
1986)
297
and
further;
Van
Loggerenberg,
Erasmus:
Superior
Court
Practice
D7-1
-
D7
-
20
for a general
discussion
;
Blendrile
(Pty)
Ltd
and
Another
v Moonisami
and
Another
2021
(5) SA 61
(SCA).
[9]
2021
(5)
SA
61
(SCA)
para
6.
[10]
Ibid
para
5;
see
also
Yeko
v
Qana
1973
(4)
SA
735
(A) at
739
a
nd
numerous authorities
hereafter.
[11]
2014
(5)
SA
112
(CC)
paras
10
- 13.
[12]
Ibid,
para
21.
[13]
(567/2022)
[2022]
ZAFSHC
151
(14 June
2022).
[14]
2019
(5)
SA
386
(SCA).
[15]
2008
(2)
SA
495
(SCA).
[16]
2020
(5)
SA
538 (WCC).
[17]
Masinda
loc cit
para
16;
Impala
loc
cit
paras
18
-
21;
and see also
Firstrand
Ltd
t/a
Rand
Mer
c
hant
Bank
v
Scholtz
NO and others
2008
(2)
SA
503
(SCA)
paras
12 & 13.
[18]
[2004]
ZACC
9
;
2005
(1)
SA
530
(CC)
paras
35
and
38.
[19]
[2009]
ZACC
30;
2010
(4)
SA
55
(CC) para 34
.
[20]
2010
(4) SA
55
(CC)
para 34.
[21]
See
long
title
of
the Electricity Act
4
of
2006.
[22]
Record:
pp
98
&
99.
[23]
Founding
affidavit,
para
25.
[24]
Record
p
71
,
para
10.
[25]
Record
p
116:
annexure WK12
to
the
replying
affidavit.
[26]
Founding
affidavit, para
41.1.
[27]
founding
affidavit,
para
39.1.
[28]
2005
(1)
SA
530
(CC) para
67.
[29]
Information
supplied
by
Dr
Henk
Boshoff, the National
Commissioner
of
the
South
African Human Rights
Commission
during
an
official
news
conference
r
e
cently
.
[30]
Answering
affidavit
paras
14,
15 & 16, read
with
annexures
AA2
and AA3.
[31]
Replying
affidavit
,
para
16.
[32]
Founding
affidavit,
paras
16
&
17.
[33]
Replyin
g
affidavit:
para
18
read
with
para
38
.
[34]
Annexure
WK2
pp
29
and
30.
[35]
Annexure
WK8 pp
42
&
43.
[36]
Fo
undin
g
affidavit
para 26.
[37]
(1346/2022)
[2024]
ZASCA 51
(18
April 2024)
.
[38]
Ibid
at
para 25 and
further.
[39]
Ibid
para
27.
[40]
Ibid
para
13.
[41]
Para
32 of
these
reasons.