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2024
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[2024] ZALMPPHC 132
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Makhavu and Another v Makhado Local Municipality and Another (7776/2024) [2024] ZALMPPHC 132 (18 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 7776/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE 18/9/2024
SIGNATURE
In the matter between:
PAUL
MAKHAVHU
First Applicant
PAULINE
MAKHAVHU
Second Applicant
and
MAKHADO LOCAL
MUNICIPALITY
First Respondent
ESKOM SOC
LTD
Second Respondent
JUDGMENT
GAISA AJ
INTRODUCTION
[1]
This matter comes before me, again, on the
return date of a Rule Nisi issued on 19 July 2024. The Applicants
seek to have the interim
orders granted on that date made final. The
First Respondent opposes the application, arguing that the matter
lacks urgency and
has become moot.
BACKGROUND
[2]
The Applicants are joint owners of two
properties within the jurisdiction of the First Respondent, Makhado
Local Municipality:
2.1
Erf 1[...] B[...] Street, Louis Trichardt
(the primary residence)
2.2
Erf 2[...] S[...] Street, Louis Trichardt
(an unmetered property)
[3]
On 18 July 2024, the First Respondent
disconnected the electricity supply to the Applicants' primary
residence, citing arrears of
R154,577.30. The Applicants contend this
disconnection was unlawful as it was done without proper notice.
[4]
The Applicants brought an urgent
application on 19 July 2024, seeking reconnection of their
electricity supply and an interdict
against future disconnections
without proper notice. An interim order was granted, and a Rule Nisi
was issued, returnable on 14
August 2024. The parties were granted an
opportunity to file their heads of argument up to 12 September 2024.
ISSUES FOR
DETERMINATION
[5]
The primary issues for determination are:
5.1
whether the application was urgent;
5.2
whether the matter has become moot;
5.3
whether the First Respondent's actions in disconnecting the
electricity were lawful;
5.4
whether the consolidation of the Applicants' accounts was lawful and
properly executed;
5.5
whether the interim orders should be made final.
LEGAL FRAMEWORK
[6]
The relevant legal framework includes:
6.1
Sections 152 and 153 of the Constitution of
the Republic of South Africa, 1996;
6.2
Sections 95
and
102
of the
Local
Government: Municipal Systems Act 32 of 2000
;
6.3
The First Respondent's Credit Control and
Debt Collection By- laws, 2020/2021 “
(Approved
by Council Resolution A.59.26.06.20)”.
ANALYSIS
[7]
Urgency
7.1
The First Respondent argues that the matter
lacks urgency as the Applicants were aware of the consolidated debt
since 16 June 2024.
However, I find that the disconnection of
electricity to a residential property without proper notice creates
an urgent situation
that justifies approaching the court on an
expedited basis. The potential harm to the Applicants and their
family, including health
and security risks, supports the finding of
urgency.
7.2
The test for urgency, as established in
East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd,
requires that the applicant
cannot obtain substantial redress in due
course. Given the immediate and severe impact of electricity
disconnection on the Applicants'
daily lives, I am satisfied that
this test has been met.
[8]
Mootness
8.1
The First Respondent contends that the matter has become moot as they
have complied with
the interim order. However, there remain disputed
issues regarding the consolidation of accounts, allocation of
payments, and the
lawfulness of the disconnection procedure. These
are matters of public importance that may recur. As held in
MEC
for Education: Kwazulu-Natal and Others v Pillay
,
[1]
the court may decide a moot case if there is a possibility of the
infringement being repeated in the future.
[9]
Lawfulness of Disconnection
9.1
The First Respondent's Credit Control and
Debt Collection By- laws require that final notices be delivered
before disconnection.
The Municipality’s own by-law reads:
“
4.13.3
Electricity services of the defaulters will be suspended ten days
after the suspension notice is served”.
9.2
The evidence before me suggests that the
First Respondent failed to provide adequate notice as required by its
own by-laws and Section
95 of the Municipal Systems Act.
9.3
The
Constitutional Court in
Joseph
and Others v City of Johannesburg and Others
[2]
emphasized the importance of procedural fairness before disconnecting
essential services. The failure to provide proper notice
in this case
renders the disconnection procedurally unfair and thus unlawful.
[10]
Consolidation of Accounts
10.1
While Section 102 of the Municipal Systems
Act allows for the consolidation of accounts, the process must be
transparent and communicated
clearly to the account holder. The
evidence suggests that the Applicants were not properly informed of
the consolidation or given
an opportunity to dispute the consolidated
amount before disconnection.
10.2
Furthermore, the consolidation appears to
have included an unmetered property, which requires a different
procedure according to
the First Respondent's by-laws. The First
Respondent has not demonstrated that it followed the correct
procedures for dealing with
unmetered properties.
10.3
The discrepancies in the billing amounts
and unallocated payments raised by the Applicants require further
investigation. While
this court cannot make determinations on the
merits of the amounts owed, these issues highlight the need for
proper communication
and dispute resolution procedures.
FINDINGS
[11]
I make the following findings:
11.1
The application was properly brought on an
urgent basis.
11.2
The matter is not moot as there are ongoing
issues of public importance.
11.3
The disconnection of electricity on 18 July
2024 was unlawful due to lack of proper notice.
11.4
The consolidation of accounts was not
properly executed or communicated to the Applicants.
11.5
The interim orders should be made final,
with modifications to address the ongoing issues.
ORDER
In light of the above, I
make the following order:
1.
The Rule Nisi issued on 19 July 2024 is
hereby confirmed and made final, subject to the modifications in
paragraphs 2-6 below.
2.
The First Respondent is ordered to
reconnect and/or cause to be reconnected the electricity supply to
the Applicants' property situated
at 1[...] B[...] Street, Louis
Trichardt, within 24 hours of this order, if not already done.
3.
The First Respondent is ordered to furnish
the Applicants with a detailed breakdown and explanation of the
consolidated amount of
R154,577.30, including all transactions and
allocations for both properties, within 14 days of this order.
4.
The First Respondent is interdicted from
disconnecting or disrupting the electricity supply to the Applicants'
property without
first providing at least 10 days' written notice,
detailing the amount due and providing a reasonable opportunity for
payment or
dispute resolution.
5.
The First Respondent is ordered to review
the consolidation of the Applicants' accounts and provide a clear
explanation of the process
followed, particularly with regard to the
unmetered property, within 30 days of this order.
6.
The Applicants are granted leave to
approach this court on the same papers, duly supplemented, should any
disputes arise from the
implementation of this order.
7.
The First Respondent is ordered to pay the
costs of this application on a party and party scale.
N GAISA
Acting Judge
High Court of South
Africa
Limpopo Division,
Polokwane
APPEARANCES
FOR
THE APPLICANT
:
MR T MALULEKE (HEADS OF ARGUMENT BY ADV. Z D MALULEKE)
:
MULULEKE (T) ATTORNEYS c/o
LEDWABA
M ATTORNEYS
EMAIL
:
reception@m-tattorneys.co.za
:
terrancemaluleke@gmail.com
:
ledwaba@ledwabamattorneys.com
FOR
THE 1
ST
RESPONDENT
:
ADV. U B MAKUYA
INSTRUCTED
BY
:
DABISHI, THAMBELENI INC c/o
:
TSHIGOMANA ATTORNEYS
EMAIL
:
mbm@dninc.co.za
:
admin5@dninc.co.za
FOR
THE 2
nd
RESPONDENT
:
EMAIL
:
DATE
OF HEARING
:19
July 2024 & 14 August 2024
DATE
OF JUDGEMENT
:
18 September 2024
This judgment is
handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 18 SEPTEMBER 2024 at 10:00 PM.
[1]
(CCT
51/06)
[2007] ZACC 21
;
2007 (3) BCLR 287
(CC);
2007 (2) SA 106
(CC);
(2007) 28 ILJ 133 (CC) (5 October 2007) at para [32].
[2]
2009
ZACC 30
(9 October 2009).