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[2024] ZAECELLC 29
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Buffalo Metropolitan Municipality and Another v Magqazana (EL1386/2023) [2024] ZAECELLC 29 (2 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
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
Case
no:
EL1386/2023
In
the matter between:
BUFFALO
METROPOLITAN MUNICIPALITY
1
st
Applicant
THE
MUNICIPAL MANAGER:
BUFFALO
CITY METROPOLITAN MUNICIPALITY
2
nd
Applicant
and
TONY
MAGQAZANA
Respondent
JUDGMENT ON
APPLICATION FOR LEAVE TO APEAL
Zono
AJ
Introduction
[1]
Pursuant to judgment granted on 05
th
March 2024, the
applicant to application for leave to appeal, which is the
Municipality parties, launched an application for leave
to appeal. I
propose to refer to the parties as follows: The Municipality and the
Municipal Manager will be the applicants and
Mr Tony Magqazana will
be referred to as the respondent.
[2]
The applicants’ grounds of appeal are couched in the following
terms:
“
1
The learned Judge erred finding that the
termination/disconnection/discontinuation/blocking of service of the
electricity supply is unlawful.
2. The learned
Judge ought to consider and accept that the Respondents did in fact
deliver the pre-termination notice, and
that service by placing a
copy of the document in the post-box of the Applicant's home is
compliance with the 14-day period, when
the premises were kept
secured and thus prevented alternative service.
3. The learned
Judge ought to disallow new matter in reply, when no case of whether
the Applicant received the notice or not,
was not made in the
founding affidavit. The new matter was known to the Applicant when
the application was launched.(sic)
4. The learned Judge
erred in not examining whether the determination of the new matter
would prejudice the Respondents, when they
had in fact complied with
the service of the pre-termination notice.
5. The learned Judge
erred in finding that the service of the pre-termination notice,
otherwise than in terms of Item 6(1)(a)-(e)
is a nullity or is null
and void, ineffectual and must be taken to not have been done.
Whereas the learned Judge held that the
real issue for determination
was whether the Applicant was given the requisite notification before
the disconnection of the electricity
supply to her premises.
6.The finding of the
learned Judge on that the service of the notice is invalid, as it did
not comply with the imperative provisions
of the empowering
provisions is unduly favourable.
7. The learned
Judge should have considered that the Respondents have an empowering
constitutional obligation, to ensure the
provision of services to
communities in a sustainable manner, and in order to do so municipal
services must be paid for by consumers.
8.The Respondents have
a right to disconnect supply, subject to the 14-days written notice
where the person liable to do so, fails
to pay any charge due to the
Respondents in connection with any supply of electricity, which such
person may have received from
the Respondents in respect of such
premises.
9.The learned Judge
ought to consider that disconnection of electricity supply is a
legitimate method for the collection of arrears
and may be followed
by legal action to recover payment.
10.If the Applicant is
permitted to run up substantial arrears without the termination of
services, the Respondents would fail in
its constitutional duty to
provide sustainable municipal services
.”
[3]
The enabling provision for an application for leave to appeal is
Section 17(1) of Superior Court
Act 10 of 2013 which provides as
follows:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that—
a)
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter
under consideration;
b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
c)
where the decision sought to be appealed does not dispose of all
the issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties
.
[4]
Stripped of wordiness the applicants seek leave to appeal on the
basis that there was misdirection
in finding that there was no
termination notice delivered in terms of Municipality Electricity
ByLaws. The applicants hold the
view that the issue of whether or not
the applicant received the notice was a new matter not raised in the
founding affidavit.
The court should have found that the applicants
have a right to disconnect/terminate electricity supply from the
respondent’s
premises. The court should have considered
applicants’ alternative submission of substantial compliance
vi-a-vis applicants’
duty to exact strict compliance with the
provisions of item 6(1)(a)- (e) of the Electricity ByLaws. The court
should have considered
the termination as a legitimate method for
arrear collection and may be followed by legal action to recover
payment.
[5]
Whether or not this application falls within the ambit of section
17(1)(a)(b) of the Superior
Court Act 10 of 2013, it is important to
deal and refer to the provisions of section 16(2) of the same Act
which read as follows:
“
2(a)(i) When at
the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect
or result, the appeal
may be dismissed on this ground alone.
(ii) Save under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs
.”
[6]
The object of the subsection is to alleviate the heavy workload of
courts of appeal
[1]
. It is
founded upon the principle that courts of law exist for the
settlement of concrete controversies and actual infringements
of
rights, not to pronounce upon abstract questions or to advise upon
differing contentions. If there is no longer live issue between
the
parties, for instance because all issues that formally existed were
resolved by agreement, there is no appeal that the court
can deal
with.
[2]
[7]
It is not in issue that an order of final nature was taken by consent
between the parties on 01
st
September 2023. It is not
contested in this application for leave to appeal that, in the
consent order granted on 01
st
September 2023 an
expressed concession of unlawfulness of disconnection and termination
of electricity supply to applicant’s
premises was made.
[3]
The parties settled their dispute in terms of the court order
aforementioned. The applicant does not seek to controvert that
finding
in this application for leave to appeal. On that basis alone
this application stands to fail. I do not agree with applicant’s
Counsel that such concession to unlawfulness would expire somewhere
in the future. However, he regretted the unfortunate manner
in which
that consent order was taken.
[8]
Secondly, there is no practical effect that may be achieved if this
matter may be decided in favour
of the applicants. No practical
benefit may be enjoyed by the applicants by merely decided this
matter or appeal in their favour.
The electricity supply to
respondent’s property that was restored by consent could not be
taken away or disconnected by a
mere dismissal of the application
a
quo.
The
situation will invariably remain the same, namely reconnection of
electricity supply. Dismissal of respondent’s application
cannot conceivably result in the disconnection and termination of the
electricity supply that is presently enjoyed in the respondent’s
premises or property. There is no live controversy or issue for
settlement by court in this matter.
[4]
In the light of section 16 (2) of the Superior Court Act 10 of 2013,
the application cannot succeed.
[9]
In
President
of Republic of South Africa v Democratic Alliance
[5]
Mogoeng
CJ
writing
for the majority restated the trite principle as follows:
“
35] This Court
cannot decide the merits that the High Court and the Supreme Court of
Appeal did not decide. The President himself
says “the order of
Vally J no longer has any practical effect between the parties and
has become academic”. This Court
is thus being asked to advise
or guide the President. That is the only real purpose to be served by
entertaining this appeal. And
courts should be loath to fulfil an
advisory role, particularly for the benefit of those who have
dependable advice abundantly
available to them and in circumstances
where no actual purpose would be served by that decision now.
Entertaining this application
requires that we expend judicial
resources that are already in short supply especially at this level.
Frugality is therefore called
for here.”
[10]
In this court
Majiki
J
[6]
had
this to say:
“
17 It is trite
that a case is moot and therefore not justiciable if it no longer
present an existing or live controversy or
prejudice, or threat
of prejudice no longer exists. A case that is moot must be dismissed
and that conclusion must apply
to all the issues.”
[11]
Deciding this matter on appeal can only be academic as it will serve
no practical purpose. The matter is
therefore moot and accordingly
not necessary to be decided on appeal. This application must
therefore fail. I do not agree with
applicant’s Counsel when he
submits that the dismissal of the application
a quo
would
entitle the respondents to terminate electricity supply without
recourse to the provisions of the item 21 and 6 of municipality
electricity ByLaws. On the contrary to avoid self-help fresh notice
would have to be issued.
[12]
Nowhere do the applicants in their application for leave to appeal
deal with the imperative nature of the
provisions of item 6(1) of the
Electricity ByLaws. Similarly, the legal consequences of
non-compliance with imperative provisions
of the Electricity ByLaws
are not part of the grounds for leave to appeal. It does not help the
applicant to marshal grounds of
appeal over the bar which have not
been set out clearly and succinctly in the notice for leave to
appeal, no matter how meritorious
these might be.
[7]
[13]
The parameters, which are extensively dealt with in the main
judgment, within which the organ of state or
state functionaries must
operate when exercising public power is not an issue in this
application for leave to appeal.
[8]
Valid exercise of public power must have a source in Law. That is a
requirement of the doctrine of legality.
[9]
Service of the pretermination notice otherwise than in terms of the
applicable Electricity ByLaws has no lawful basis. Unjustified
deviation from the imperative provisions thereof is legally
impermissible. Applicant’s Counsel was at pains in dealing with
the maxim of interpretation
unius
est exclusio alterius
referred
to in paragraph 29 of the main Judgment.
[14]
It is not clear from the application for leave to appeal why it was
wrong for this court to enforce the applicant’s
own Electricity
ByLaws.
Jafta
J
[10]
once
said:
“
[99] In
our democratic order, it is the duty of courts to apply and enforce
legislation……If the validity of legislation
is not
impugned, there can be no justification for not enforcing it.”
This is a Constitutional
obligation reposed to courts.
[11]
This
matter was about enforcement of Municipality’s Electricity
ByLaws, or failure to so comply therewith. It is not disputed
that
there was non-compliance with item 6(1) read with item 21 of the
Municipality’s Electricity ByLaws, hence an alternative
argument about substantial compliance.
[15]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect
or realistic chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless is not enough.
There must be a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.
[12]
The
applicants in this application for leave to appeal are far from
satisfying these requirements.
[16]
With regard to criticism that the court allowed a new matter that was
not raised in the founding affidavit,
I disagree. Infact the very
basis of this application was that the respondent did not receive or
was not served with a pretermination
notice in terms of the
Electricity ByLaws. The respondent’s complaint was about
non-compliance with item 6(1) read with item
21 of the Municipality’s
Electricity ByLaws. In what follows I refer to relevant paragraphs in
the founding affidavit, which
demonstrate the incorrectness in the
applicants’ proposition aforesaid.
[17]
In paragraph 18-19 of founding affidavit the respondent alleges as
follows:
“
18 I had not
received any notice from the respondents advising me about the
intended termination of electricity supply to the aforestated
premises being house No 2[…], Zone 10, Zwelitsha, Eastern
Cape.
19.The actions of the
respondents are in contravention of the first respondents’
electricity ByLaws…”
[18]
The respondent continues to state as follows:
“
22. This
application is premised in terms of section 21 of the Buffalo City
Municipality Electricity ByLaws promulgated on the 10
TH
December 2009
in terms of which the first respondent is required to disconnect the
supply of electricity to any premises with (sic)
fourteen (14) days
written notice where-
22.1 the person liable
to do so fails to pay any charge due to the Municipality in
connection with any supply of electricity which
such person may have
received;
22.2 any of the
provisions of the ByLaws and/or are contravened and the person
responsible has failed to remedy such default after
such notice has
been given.
23. In all the
aforegoing, I confirm that I have never received any notice with the
supply of electricity to the premises and the
meter number in
question despite such frivolous allegations.
24.I have been
unlawfully deprived of all my lawful and basic services that go with
having electricity in the premises, including
inter alia
,
the supply of electricity for basic living.”
[19]
Lastly in paragraph 13 of the founding affidavit the relevant part
reads as follows:
“
13……
Mr N. Ngqongqo then called me to ensure that I am aware of such
notice which I told him that I am unaware of
then replied to their
email immediately stating that the respondents still have not served
the applicant with this notice in accordance
with section 6 of the
respondent’s ByLaws, and that if they do not unblock me by end
of business day Sunday on the 27
th
of August 2023
then an application will be brought to court on an urgent basis
.”
[20]
In the light of the above I find the criticism to be unjustified and
preposterous as it finds no support
on the pleaded case of the
respondent.
[21]
With regard to the fact that the court should have considered that
the disconnection is a method of collection
of arrears, I disagree.
The respondent’s’ case was less about arrear collection
and more about unlawfulness of the
termination of the electricity
supply to the property. That was a case served before court. It is
impermissible to decide a case
that is not brought before court by
the parties.
[13]
[22]
On the subject the Constitutional Court
[14]
made
the following dictum:
“
82.
Sound
judicial policy requires us to decide only that which is demanded by
the facts of the case and is necessary for its proper
disposal. This
is particularly so in constitutional matters, where jurisprudence
must be allowed to develop incrementally. At times
it may be
tempting, as in the present case, to go beyond that which is strictly
necessary for a proper disposition of the case.
Judicial wisdom
requires us to resist the temptation and to wait for an occasion when
both the facts and the proper disposition
of the case require an
issue to be confronted. This is not the occasion to do so. There may
well be cases, and they are very rare,
when it may be necessary to
decide an ancillary issue in the public interest. This is not such a
case. It may well be said that
the President is anxious to know
whether the exercise of the power to grant pardon constitutes
administrative action and whether
PAJA applies to applications for
pardon. The anxiety of the President should adequately be addressed
by what I have said above,
namely, that the High Court erred in
reaching these questions.”
[23]
In the amalgam of all the above factors, I come to a conclusion that
there is no reasonable, realistic chance
of success on appeal.
Accordingly, this application must fail with costs.
Order
[24]
I accordingly make the following order:
24.1
Application for leave to appeal is dismissed.
24.2
The applicant in the application for leave to appeal is ordered to
pay costs of the application for leave
to appeal.
ZONO
AJ
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the Respondent/Applicant:
Adv.
Nyangiwe
Instructed
by :
B.
BANGANI ATTORNEYS
Respondent’s
attorneys
15
Suffolk Road
Berea
East
London
Tel:
043
742
2904
E-mail:
bangani@telkomsa.net
Counsel
for the Applicant/ Respondent:
Adv.
Conjwa
Instructed
by:
S.J
NGQONGQO ATTORNEYS
8
Delta Road
Beacon
Bay
East
London
Tel:
043 748 4429/ 074 216 0594
E-mail:
sonwabilengqongqo@yahoo.com
Date
heard:
29
th
April 2024
Date
Delivered:
02
May 2024
[1]
ABSA
Bank Ltd v Van Rensburg
2014
(4) SA 626
SCA at 631E
,
Legal Aid South Africa v Magidiwana
2015(2)
SA 656 (SCA) at 570H-571B
[2]
Port
Elizabeth Municipality v Smith
2002
(4) SA 241
SCA at 246 I-247 A
[3]
Para 46-48 of the main judgment
[4]
Minister
of Tourism and others v Afri forum NPC and another
2023 (6) BCLR 752
(CC)
Para 23
[5]
2020 (1) SA 428
(CC) Para 35
[6]
GKG Africa Pty Ltd
v Eastern Cape Rural Developmnet Agency and Others
Case
No
: L
1074/219, East London Circuit Court Para 17
[7]
Municipality
of Thabazimbi v Badenhorst
(66933/2011)
[2024 ZAGPHC 212
(26 February 2024) Para 12-15
[8]
Para 17-19 of the main judgment
[9]
AAA
Investment (Proprietary)Limited v Micro Finance Regulatory Council
and Another
2007(1)
SA 343 (CC) Para 68;
Lester
v Ndlambe Municipality and another
2015
(6) SA 283
(SCA) Para 26
[10]
Cools Ideas 1186
CC v Hubbard and another
2014
(4) SA (CC) Para 99
[11]
Section 165(2) of the Constitution
[12]
S v
Smith
2012
(1) SACR 567
(SCA) Para 7;
MEC
for Health, Eastern Cape v Mkhitha and anothe
r
(1221/2015)
[2016] ZASCA 176
(25 November 2016) Para 17
[13]
Fischer
v Ramahlele and others
2014
(4) SA 614
SCA Para 13
[14]
Albutt
v Centre for the Study of Violence and Reconciliation and others
2010 (3) SA 293
(CC)
Para 82