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[2024] ZAFSHC 234
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Loizou v Matjhabeng Local Municipality and Another (5046/2023) [2024] ZAFSHC 234 (25 April 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:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: 5046/2023
In
the matter between:
IOULIA
LOIZOU
Applicant
and
MATJHABENG
LOCAL MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER
MATJHABENG
LOCAL MUNICIPALITY
Second
Respondent
CORAM:
MB NEMAVHIDI AJ
HEARD
ON:
25
APRIL 2024
DELIVERED
ON:
27
JUNE
2024
*
JUDGMENT
BY:
MB NEMAVHIDI AJ
Introduction
[1]
The applicant is the registered owner of the property situated at […]
J[…] Court,
1[…] B[…] Street, Virginia, Free
State. The property is occupied by the applicant who resides in and
conducts business
from the premises. She has several tenants who rent
the property for both residential and commercial purposes. These
tenants include
persons who are vulnerable and fragile and in
desperate need of water, a supply of which is provided by the first
respondent (municipality)
in terms of a contractual agreement between
itself and the applicant.
[2]
A dispute arose between the parties as to the amount due in respect
of water consumption at the
property, and in her endeavour to settle
the matter, three formal disputes had been declared with the
municipality, the relevant
dates being: 2 May 2023, 14 August 2023
and 15 August 2023. The applicant indicated that she is not indebted
to the first respondent
as she makes monthly payment of her account
and is desperately attempting to have the dispute resolved; she made
numerous attendances
at the first respondent’s office in an
atempt to have the dispute resolved.
[3]
On the 21 September 2023, the municipality unlawfully disconnected
the water supply to the property
by the removal of a water meter
regulating flow to the property. This prompted the applicant to
institute urgent proceedings in
an attempt to have the municipality
ordered to restore water to the property. However, subsequent to the
issuance of the application
but before the application was heard, the
municipality reconnected the water supply to the property.
[4]
The court issued a rule
nisi
calling upon the municipality to
show cause why the following order should not be made final:
‘
That
the 1
st
respondent be interdicted and restrained from reducing or
disconnecting the water supply to the property, pending the final
adjudication
of this application and the internal dispute resolution
process of the 1
st
respondent’.
The court furthermore
ordered that the parties should engage in a dispute resolution
process meeting on 20 October 2023 at 1
st
respondent’s
office. The applicant and respondent met as ordered by the court, but
the dispute remains unresolved as no formal
outcome has been issued
by the municipality.
The
Application of the Law
[5]
Section 33 of the Constitution of the Republic of South Africa
provides that:
‘
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally
fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right
to be given written reasons.
. . .’
Section
34 of the Constitution continues by providing that
‘[e]
veryone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.’
Furthermore,
Section
151(3) of the Constitution provides that ‘[a] municipality has
the right to govern, on its own initiative, the local
government
affairs of its community, subject to national and provincial
legislation, as provided for in the Constitution.’
[6]
Chapter 7 of the Constitution discusses the realm of local
governance. Section 151(1) makes provision
for the establishment of a
local government structure, namely a municipality and proceeds to set
out the purpose and powers of
this governmental structure. Section
152(1)
(b)
and
(d)
provides that the objects of the
municipality or local government include
inter alia
: ‘to
ensure the provision of services to communities in a sustainable
manner’ and ‘to promote a safe and healthy
environment;’
while s 156(2) authorizes the administering of by-laws for the
effective administration of matters which it
has the right to
administer. Such by-laws should not conflict with national or
provincial legislation as it would be invalid.
[7]
The Local Government: Municipal Systems Act 32 of 2000 (the Act) is
the legislation enacted to
give effect to the provisions in the
Constitution pertaining to municipalities. This Act describes and
assigns the purpose, functions
and powers of a municipality and s 102
provides as follows:
‘
(1)
A Municipality may–
(a)
.
. .
(b)
.
. .
(c)
‘
Implement
any of the debt collection and credit control measures provided for
in this Chapter in relation to any arrears on any
of the accounts of
such a person’.
It
is important to bear in mind that subsection
(c)
does not
apply where there is a dispute between the municipality concerned and
a person referred to in that subsection concerning
any specific
amount claimed by the Municipality from that person.
[8]
Section 96 of the Act requires that, in its quest to recoup the costs
involved in delivering services
to residents within its jurisdiction,
a municipality must adopt, maintain and implement a credit control
and debt collection policy.
Section 29 of the Municipality’s
Debt Collection and Credit Control Policy provides as follows:
‘
(1)
The municipality may, immediately on the expiry of the 7 (seven)
working day period allowed for payment in terms of the final
demand
notice limit or disconnect the municipal services specified in
subsection 28(1)
(c)
provided that a domestic customer’s access to basic water
supply services and sanitation services may not be disconnected.
(2)
The municipality may only limit a domestic customer’s access to
basic water services by-
(a)
Reducing
water pressure; or
(b)
limiting
the availability of water to a specified period or periods during a
day; or
(c)
disconnecting
in-house and yard connections and making an alternative water supply
services available to the domestic consumer,
which alternative
service may consist of a basic water supply services as prescribed by
the Minister of Water Affairs and Forestry
in terms of Water Services
Act, 1997 (Act No 108 of 1997).’
Condonation
[9]
The second respondent, the municipal manager of the Municipality,
raised a point
in
limine
which related to the non-joinder of the applicant’s tenants.
The respondents seek condonation for the late filing of this
issue of
non-joinder. However, their special plea is baseless and devoid of
merit. In this matter there is no need to join the
applicant’s
tenants as they all depend on the water supplied by the Municipality
to the applicant. Condonation is therefore
not granted as it is not
in the best interest of justice to do so.
[1]
The
Remedy Sought by Applicant
[10]
It is common cause that the respondents did not comply with the
legislation as well as their Municipalities
Credit Control and Debt
Collection Policy. The fact that the respondents denied the applicant
her Constitutional right to access
water is an unfair administrative
action. It is an indication of the respondents’
mala
fides.
The
applicant harbours a reasonable apprehension of irreparable and
imminent harm to her right if an interdict is not granted; the
balance of convenience favours the granting of the interdict, as the
applicant has no other remedy.
[2]
[11]
In
National
Council of Societies for Prevention of Cruelty to Animals v
Openshaw
,
[3]
the
SCA reiterated that:
‘
[A]n
interdict
is not a remedy for past invasion of rights but is concerned with
present or future infringements. It is appropriate
only when
future injury is feared. Where a wrongful act giving rise to
the injury has already occurred, it must be of a continuing
nature or
there must be a reasonable apprehension that it
will
be repeated.’
[4]
The granting of the
interdict is discretionary in the sense that a court may not grant an
interdict in circumstance where there
is an alternative remedy
available to an applicant for an interdict and which may
satisfactorily safeguard the right sought to
be protected.
[5]
In
the result, I make the following order:
1.
The interim interdict granted on the 17
th
October 2023 is
made final.
2. The
respondents are ordered to pay the costs of this application jointly,
and severally, the one paying the
other to be absolved. Such costs to
be on Rule 67B scale.
MB NEMAVHIDI AJ
Appearances
For
the Applicant:
Adv
J Ferreira
Instructed
by:
Roma
Badenhorst Attorneys
Virginia
C/O
Noordman Attorneys
For
the Respondents:
Adv
KP Moholo
Instructed
by:
Kemi
Akinbohun Attorneys
Welkom
C/O
Tshangana and Associates INC
Bloemfontein
[1]
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3; 2000 (5) BCLR 465.
[2]
Setlogelo
v Setlogelo
1914 AD 221.
[3]
National
Council of Socities for Prevention of Cruelty to Animals v Openshaw
[2008] ZASCA 78; [2008] 4 All SA 225.
[4]
Ibid para 20.
[5]
Transvaal
Property Investments Co v SA Townships Mining and Finance Corp
1938 TPD 521
.
See also
Hotz
and Others v University of Cape Town
[2016]
ZASCA 159
; 2017 (2) SA 485 (SCA) para 36.