SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number s: 2024- 136466
2023- 077080 & 2 020- 15 428

In the matter between:

Case Number: 24- 136466
In the matter between:
ERF 7 […] ROBINDALE FIVE (PTY) LIMITED & OTHERS Applicants
vs CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY & ANOTHER
Respondents
and

Case Number: 23- 077080
In the matter between: (1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVIEWED AND REVISED: YES
6 January 2025
DATE SIGNATURE
2


ORDICODE (PTY) LTD Applicant
vs

CITY OF JOHANNESBURG Respondent

and

Case Number: 20 -15428
HYDE PARK GARDENS (PTY) LTD t/a SHELL HYDE PARK GARDENS
Applicant
vs
CITY POWER OF JOHANNESBURG SOC LIMITED & OTHER
Respondents
Summary: Abuse of Power in Debt Collection: The City of Johannesburg (CoJ) has
engaged in unprincipled debt collection practices, including disconnection of utilities without adequate procedural compliance - Legal Framework : The issues are
governed by the Local Government: Municipal Systems Act and the CoJ’s Credit Control and Debt Collection By -laws, emphasizing the need for disputes to relate to
specific amounts and for municipal compliance with procedural fairness - Rights of
Consumers : Consumers have the right to utility services pending resolution of
disputes if they meet statutory requirements, including properly raising disputes and continuing reasonable payments - Failures in Administration: CoJ and its legal team
have shown systemic dysfunction and non- compliance with court orders, leading to
repetitive litigation and financial hardship for consumers - Judicial Oversight : Courts
have repeatedly warned CoJ against such practices, emphasizing the need for
accountability and adherence to legal and constitutional standards - Principles of
Fairness : Municipalities must balance revenue collection with fairness, avoiding
aggressive measures against disputed debts without resolving the disputes justly -
Hearsay and Litigation Conduct : The CoJ's reliance on affidavits from officials
without personal knowledge undermines proper litigation processes, as highlighted in
3

multiple cases - Accountability for Non- Compliance : The judgment calls for stronger
enforcement mechanisms, including potential personal liability for officials and legal
advisors in cases of repeated non -compliance.


JUDGMENT

This judgement is delivered by upload to the digital data base of the court and by
transmission email to the parties on 6 January 2025.
BADENHORST AJ:
“Power tends to corrupt and absolute power corrupts absolutely ”, observed Lord
Acton in his well -known aphorism.
INTRODUCTION [1] This judgment elucidates the abuse of power resulting from robust yet
unprincipled debt collection practices by the City of Johannesburg (CoJ). As noted by Sutherland DJP in his supplementary judgment in Millu,
1 the administration of the
CoJ exhibits "intrinsic dysfunctionality" in this category of dispute. The cases
considered in this judgment reveal the continued corrosive impact of unchecked power on the CoJ’s debt collection practices. Additionally, it underscores how a
specific group of l awyers , frequently retained by the CoJ, persistently pursue
unmeritorious arguments , undeterred by the facts of the individual cases. This
culminates in unnecessary High Court litigation for those few who can afford to seek relief, while many less fortunate customers no doubt remain at the mercy of an

1 Millu v City of Johannesburg Metropolitan Municipality and Another (supplemental judgment)
(25039/2021) [2024] ZAGPJHC 420 (29 April 2024). The principal judgment (also referenced)
is referenced as follows on SAFLII: Millu v City of Johannesburg Metropolitan Municipality and
Another (25039/2021) [2024] ZAGPJHC 419 (18 March 2024). See also the 4 other decisions of this court similarly critical of the administration of the City of Johannesburg identified in
footnote 6 below.
4

indifferent officialdom. Consequently, severe financial burdens and hardships are
imposed on customers and ratepayers .
[2] The City of Johannesburg must urgently address and rectify this pernicious
practice and its underlying causes to ensure a fair and just administrative process for
all its customers and ratepayers. It is disturbing that despite the same disquiet
having been expressed in no less than six recent judgments of this court,
commencing with a “stern warning” in a judgment in January 2023
2, the City officials
and their legal advisers (who are once again involved in the cases under
consideration in this judgment) appear to treat this court’s concerns with disdain.
This judgment confronts the grave and far -reaching consequences of continued
abuse of power with unflinching resolve.

[3] Four urgent applications were enrolled for hearing on the urgent motion court
roll for the week of 2 to 6 December 2024. These applications arise from the
disconnection of customers’ utilities by the City of Johannesburg (“CoJ”) and City
Power (“CP”), the latter being a wholly owned municipal entity of the CoJ. One of the
four matters was settled, and the remaining three were argued. G iven the substantial
similarities in the facts and legal principles of the three argued matters, all three opposed applications are considered in this judgment.

[4] The three matters are identified as follows on the urgent motion court roll for 2
– 6 December 2024:
1) ERF 7 […] ROBINDALE FIVE (PTY) LIMITED // CITY OF
JOHANNESBURG METROPOLITAN MUNICIPALITY Case Number: 24 -
136466 [No. 2 on the roll] (“the Erf 7 […] matter”) ;
2) ORDICODE (PTY) LTD // CITY OF JOHANNESBURG Case
Number:23- 077080 [No. 7 on the roll] (“the Ordicode matter”);
3) HYDE PARK GARDENS (PTY) LTD // CITY POWER
JOHANNESBURG SOC LIMITED & OTHER Case Number: 20/15428 [No. 9
on the roll] (“the Hyde Park matter”) .

2 Ulcombe v City of Johannesburg 18969/2022 (2023 02 01) per Strydom J , referenced in
paragraph 103 of Afhco Calgo M3 Consortium (Pty) Ltd v City of Johannesburg Metropolitan
Municipality and Others (2022/322) [2024] ZAGPJHC 1057 (18 October 2024) per Amm AJ .
5


THE SYSTEMS ACT AND THE CREDIT CONTROL BY- LAWS

[5] The legal framework underpinning these matters comprises the Local
Government: Municipal Systems Act (“the Systems Act”) and the City of
Johannesburg’s Credit Control and Debt Collection By -laws, published under Notice
1857 of 2005 in Provincial Gazette Extraordinary No. 213 of 23 May 2005 (“the
Credit Control By -laws”).

[6] Section 102(1) of the Systems Act provides as follows:
“102 Accounts
(1) A municipality may –
(a) consolidate any separate accounts of persons liable for payments to the
municipality;
(b) ….; and
(c) implement any of the debt control measures provided for in this Chapter in
relation to any arrears on any of the accounts of such a person.
(2) Subsection (1) does not apply where there is a dispute between a
municipality and a person referred to in that subsection concerning any
specific amount claimed by a municipality from that person.”

[7] Section 97(1)(g) read with section 96(b) of the Systems Act provides that debt
control measures include “ termination of services or the restriction of the provision of
services when payments are in arrears .”
[8] In Body Corporate Croftdene Mall v Ethekwini Municipality 2012 (4) SA 169
(SCA), at paragraphs [21] to [23] on pages 178H to 179D, Section 102(2) of the
Systems Act is interpreted as follows: :
“[21] Neither the Systems Act nor the policy defines the term 'dispute'. Some
of the definitions ascribed to it include 'controversy, disagreement, difference of opinion', etc. This court had occasion to interpret the word in Frank R Thorold (Pty) Ltd v Estate Late Beit and said that a mere claim by one party, that something is or ought to have been the position, does not amount to a
6

dispute: there must exist two or more parties who are in controversy with each
other in the sense that they are advancing irreconcilable contentions.
[22] It is, in my view, of importance that s 102(2) of the Systems Act requires that the dispute must relate to a 'specific amount' claimed by the municipality.
Quite obviously, its objective must be to prevent a ratepayer from delaying
payment of an account by raising a dispute in general terms. The ratepayer is
required to furnish facts that would adequately enable the municipality to ascertain or identify the disputed item or items and the basis for the ratepayer's objection thereto. If an item is properly identified and a dispute
properly raised, debt collection and credit control measures could not be
implemented in regard to that item because of the provisions of the
subsection. But the measures could be implemented in regard to the balance in arrears; and they could be implemented in respect of the entire amount if an item is not properly identified and a dispute in relation thereto is not
properly raised.
[23] Whether a dispute has been properly raised must be a factual enquiry requiring determination on a case- by-case basis. It is clear from clause 22.3
of the policy referred to above that the dispute must be raised before the
municipality has implemented the enforcement measures at its disposal. ”

[9] In 3[…] V[…] D[…] M[…] Street H […] CC v City of Johannesburg Metropolitan
Municipality and Another
3 delivered on 24 March 2023, this Court explained that in
Croftdene Mall the SCA imposes the following five requirements before a consumer
of municipal services may rely on the protection against disconnection provided by section 102(2) of the Systems Act :
“27.1 there must be a dispute, in the sense of a consumer, on the one hand,
and the municipality, on the other, advancing irreconcilable contentions;
27.2 the dispute must be properly raised, which would require, at least, that it
be properly communicated to the appropriate authorities at the municipality
and that this be done in accordance with any mechanism and appeal
procedure provided in terms of section 95(f) of the Systems Act for the
querying of accounts;

3 (2023 -069078)[2023]ZAGPJHC 963 (25 August 2023)
https://www.saflii.org/za/cases/ZAGPJHC/2023/963.html
7

27.3 the dispute must relate to a specific amount or amounts or a specific item
or items on an account or accounts, with the corollary that it is insufficient to
raise a dispute in general terms;
27.4 the consumer must put up enough facts to enable the municipality to
identify the disputed item or items and the basis for the ratepayer's objection
to them;
27.5 it must be apparent from the founding affidavit that the foregoing
requirements have been satisfied .”

[10] The Credit Control By -laws provide as follows :
1) Section 13(1): If a customer fails to pay the amount due for municipal
services or rates on or before the specified due date, a final demand notice may be issued to the customer.
2) Section 13(2)(a): A final demand notice must specify the amount in
arrears, the interest payable, and a statement that payment must be made within 14 days of the date of the final demand notice.
3) Section 15(2)(a): The CoJ is empowered to terminate or restrict the
provision of water or electricity —or both, as applicable—if a customer fails to
make full payment of the arrears stated in the final demand notice.

[11] With these principles in mind, I now turn to consider the facts of each matter.
THE ERF 7 […] MATTER

[12] On 22 November 2024 the applicants launched an urgent application against
the CoJ and Johannesburg Water [“JW”] (the CoJ’s water reticulation company) ,
respectively the first and second respondents, for the following substantive relief:
“2. That the respondents are ordered to forthwith and immediately restore
water supply to the Applicants' immovable property described as Erf 7[ …]
Robindale, situated at 4[ …] A[…] Road, Robindale Ext 5 ("the property");
and/or alternatively
3. An interdict be granted against the Respondents prohibiting the
Respondents from disconnecting the electricity and/or water supply to the
property, pending the final determination of the rights of the parties. ”
8


[13] The usual notice is included therein, advising:
“…. that the affidavit of INGRID LAWRENCE will be used in support of this
application.”

[14] Ms Lawrence explains in the founding affidavit that she is the administrator of
the first applicant which is the registered owner of the property. The property is the
home and primary residence of Ms Lawrence (67 years old), her husband Keith ( 74
years old) and her daughter Camilla (39 years old). The family business, BetaTrac
operates exclusively from the property where it develops and supplies software for
the security industry.

[15] The respondent s provide water and electricity services to the property .

[16] According to the founding affidavit, the need for this urgent application arose
on 22 November 2024, when a representative of JW visited the property and shut off—or attempted to shut off —the water supply due to alleged unpaid electricity
accounts dating back to approximately 2010 –2012, over a decade ago.
[17] The applicants promptly instructed their attorney to address a letter to the CoJ
(for the attention of its legal adviser, Mr Tuwani Ngwana) and to the CoJ’s attorneys, Messrs Ramatshila- Mugeri Attorneys. The letter dated 22 November 2024 reads as
follows:
“We confirm that on 22 November 2024 (an) i ndividual purporting to be from
Johannesburg Water S OC Limited attended at our clients premises and
proceeded to and/or alternatively attempted to disconnect our client's water supply on the basis of unpaid electricity accounts.
We again record, as your offices are completely aware: -
1. Our client disputes it is indebted to your client in the sum of R132 482.67
which amount is reflected on the latest statement for April 2023. Our client
particularly disputes all arrears and the interest accrued thereon.
2. Our client is making payment of each and every current account (proof of which was provided at the meeting) and in the circumstances we submit that
9

your client is suffering no prejudice until such time as the disputed amount
has been ventilated by a court of law.
We confirm that this attempt to terminate our client's electricity and/or water
supply is unlawful and (an) abuse by your offices to enforce a debt which
remains disputed. We hereby demand that you immediately re -connect our
client's water and/or electricity supply, failing which our offices hold instruction to immediately launch an urgent application to the High Court which will be accompanied with a request for an order for costs on a punitive scale in light of the unreasonable conduct of your offices.
This letter shall be brought to the attention of the presiding judge in support of
such application. Our client's rights remain strictly reserved.”

[18] No response to the letter was received from the CoJ or its attorneys,
prompting the institution of this application.
[19] According to the founding affidavit, there has been a longstanding dispute
with the respondents dating back to approximately 2010– 2012, when the CoJ
allegedly issued excessive electricity accounts to the first applicant. One such
account, covering only March 2012, amounted to R59,686.23—significantly
exceeding the applicant’s average monthly electricity bill for previous months. This charge, together with other disputed amounts totalling R133,207.67, is collectively
referred to as “the disputed lump sum.” .

[20] The first applicant continues to make payment of the CoJ’s monthly charges
on the due date. According to the deponent, “[a]ll current accounts are being settled
timeously and without deduction.” She further asserts that, for over a decade ( since
December 2013) the first applicant has exclusively utilized prepaid metered
electricity. Consequently, the current monthly charges billed by Johannesburg Water
pertain solely to water consumption. Furthermore, there has never been any
contention between the parties concerning water consumption.

[21] By way of background, the deponent to the founding affidavit states that on 30
July 2013, two agents of the CoJ inspected the property’s electricity meters and
declared them faulty (spinning too fast) and in need of replacement or recalibration.
10

Although the meters were eventually removed, neither the CoJ nor City Power
provided any feedback regarding the steps taken to resolve the issue.
[22] Since July 2016, there has been prolonged “back and forth,” including threats
of disconnection and extensive debate, yet the issue remains unresolved.
[23] On 10 March 2017, the first applicant brought an application in this Court
against the CoJ and CP, seeking a statement and debatement of account as well as ancillary relief. A Rule Nisi was issued, which included a request for this Court to
determine whether the disputed lump sum was owing. However, on the return day,
the application was dismissed .

[24] By this time, the first applicant contended that the disputed debt had, in any
event, become prescribed, as the CoJ had not instituted legal proceedings to interrupt the running of prescription.
[25] The dispute remained unresolved, and the CoJ’s threats of disconnection
continued. The deponent to the founding affidavit avers that the first applicant made
multiple attempts to find a reasonable solution, including a request for a round- table
conference with the CoJ. From 2021 to 2023, the first applicant’s attorney sent
several letters to the CoJ, yet no responses —or no adequate responses —were
received.

[26] Eventually, the CoJ agreed to a round- table meeting, which took place on 23
April 2023. However, the meeting did not proceed smoothly, as is evident from the
following paragraph of the founding affidavit :
“59. I am advised that Mr Campbell (first applicant’s attorney) was subjected to an extraordinary display of aggression at the hands of the Representative
of the Respondent being Mr Tuwani Ngwana who outrightly refused to engage
in any debate of the account. Mr Ngwana insisted that the Respondent would
not negotiate in any capacity whatsoever and that he would immediately
instruct disconnection of al l power and or water to the property .”

11

[27] The events that transpired at the conference were memorialized in a letter
dated 25 April 2023, authored by Mr Campbell and addressed to the CoJ’s attorneys .

[28] The next significant development occurred on 22 November 2024, when an
employee of the CoJ arrived at the property with a “ water supply interruption job card
due to credit control ,” apparently prepared to execute it .
[29] The founding affidavit concludes by restating the CoJ’s contentions, which
were presented at the unsuccessful conference. The first is that the dismissal of the
application for a statement and debatement of account “ renders the arrears due and
owing,” and the second is that the first applicant’s payment of current accounts
interrupted the running of prescription. In her replying affidavit, Ms Lawrence rejects both propositions .
[30] The application was served by email on the respondents’ attorney who
delivered a Notice of Intention to Oppose dated 25 November 2024.

[31] On 2 December 2024 Mr Tuwani Ngwana (a legal advisor employed by the
CoJ) signed an affidavit described, in the tram lines, as “ Municipality Affidavit
Proposing the Appropriate Relief ”.
[32] Mr Ngwana states that he is duly authorised to depose to the affidavit on
behalf of the CoJ . As to his knowledge of the facts deposed to, he makes the
following introductory statements:
“2. Subject to the contents directly attributed to an individual within the employ
of the City of Johannesburg Metropolitan Municipality the contents of this affidavit fall within my personal knowledge, save where the contrary appears from the context hereof and are to the best of my belief both true and correct.
3. Submissions or statements and/or allegations of a legal nature contained
hereunder have so been made on advice received from the City of
Johannesburg Metropolitan Municipality' representatives, whose advice I have
accepted and belief (sic) same to be true and correct. Comprehensive legal
submissions pertaining to such submissions, statements and/or allegations
will be presented to the above Honourable Court.
12

4. I wish to clarify that the facts deposed to hereunder are known to me
through the documents which I have access to under the Municipality's
system and also in discussion with the colleagues employed by the
department such as Jhb Water together with their sub - contractors.”
and, he says , that:
“6. As it can be observed above, my authority to depose to this affidavit emanates from my employment with the Municipality and on consideration of the records relating to the Applicant consumer account under which services are supplied and on discussions with the officials employed by the
Municipality's departments.”

[33] Mr Ngwana contests the urgency of the application because, he says, ‘ there is
[sic] no disconnections of services ’ and ‘ the Municipality has not served any notice
seeking to disconnect same’. As to the interdict against disconnection applied for ,
the CoJ proposes that “ in the event where the Applicants disputes [sic] any charges
it must follow the provisions of section 16 of its Credit Control and Debt Collection
Policy to this extent, a limited interdict may be granted”.

[34] The CoJ’s answering affidavit is unorthodox. It appears that little attention was
paid, in its preparation, to Rule 6 and the practice of this Court —amply explained in
the authorities and case law — namely that affidavits must address facts rather than
argument. In this regard, Mr Ngwana’s “affidavit” fails to engage squarely with the
factual averments in the applicants’ founding affidavit and is instead largely, and
inappropriately, cast in argument form .

[35] For example, Section [C] thereof states what the CoJ considers it to be its
obligation to collect revenue and to implement “the laws” including the termination of services “in the event of non payment”; Section [D] states the proposition that “the
Courts (are) lacking powers to intervene until such time as the Municipality has dealt
with the dispute” . Consistent with the recurrent flaw in the City of Johannesburg’s
affidavits, elaborate case references and extensive quotations therein are inappropriately included under this rubric . Section [E] sets forth the terms of a
proposed order of court . Included in a rather confusing series of contentions, is this
one which deserves to be highlighted:
13

“Currently as things stands [sic], the Applicant has not disclosed any dispute
and the granting of the interdict as sought by the Applicants does not provide
any clarity .”
This statement is not supported by the facts – on a fair reading of the founding
affidavit , the applicant raises a genuine dispute compliant with the Croftdene Mall
and 3[ …] V[…] d[…] M[…] Street decisions.
[36] In Section [F] of the answer, the following is stated:
“Upon receipt of the Applicants urgent application and the appointment of its
representatives, the Municipality appointed Counsel and during consultation it
was discovered that the Applicants property was not disconnected and that it
is not on the list of the properties to be disconnected. ”
On this basis, argues the CoJ, the applicants had no reason to approach the urgent court . In paragraph 9, Mr. Ngwana accuses the applicant of 'abusing this Honourable
Court ' by rejecting the City of Johannesburg's 'proposed terms of the order .'
[37] Again, the reasoning of the deponent is flawed in circumstances where the
applicant ’s detailed account of the facts in chronolog ical sequence is uncontested or
inadequately answered, especially their numerous unanswered letters which were
never replied to and the harrowing threats the applicant suffered from the time of the
failed conference. The outlandish accusation of abuse hurled at the applicant is
wholly inappropriate. In fact, for the CoJ to disclose details of what had obviously been settlement negotiations is itself improper .

[38] I find that the matter is urgent and that the applicant is entitled to the relief
claimed in the prayers of its notice of motion quoted above – there are two issues
that require clarification when it comes to the relief to be granted on the merits
namely, first the fact that CoJ says it has restored water supply and, second, until
when the interdict is to operate and on what conditions.

[39] The first issue is resolved by formulating the mandamus appropriately to allow
for the CoJ’s position namely that the water supply has been restored.

14

[40] As to t he second, it is important to make clear that the protection afforded to
the applicant is only in respect of the disputed debt and it will continue only until a
resolution is achieved either by formal legal process or by agreement in short order .

[41] As far as costs are concerned, I am satisfied that a punitive order is justified
on the facts of this matter.

[42] The order I make appears at the end of the judgment.

THE ORDICODE MATTER

[43] The applicant seeks an urgent interdict against the CoJ and CP to prevent
them from terminatin g the electricity supply to its property at 85 Wolmarans Street
Johannesburg (“the property”) , pending the resolution of the disputes in a previous
but unresolved “main” application launched by the applicant in this court on 3 August
2023 [“the main application”] . In addition, application is made, in the event of
termination (in breach of the court order) , that Applicant be allowed to appoint its
own professional contractors to reconnect services at respondents’ costs; and that
respondents ’ collection attorneys be directed to stop harassing the applicant for
payment of the disputed debt until the disputes in the main application have been resolved. The relief against harassment was not pursued in the draft order proposed
by the applicant at the conclusion of argument.

[44] An eight -storey building on the property accommodates a business on th e
ground floor and 106 apartments on the first to eighth floors which are occupied by
about 200 students.

[45] In the founding affidavit in the urgent application, launched on 26 November
2024 for hearing in the urgent motion court on 3 December 2024, Ms Mokhobo (a
director of the applicant) relies on Section 102 of the Systems Act for the proposition
that the respondents are not entitled to disconnect supply of services in
circumstances where a dispute has been lodged against an account ; she contends
that any disconnection while such dispute remains unresolved will be unlawful. In
support of this line of reasoning, the applicant cites Section 95 of the Systems Act
15

which lays down the duties of a municipality in relation to the charging of fees for
municipal services. The applicant claims that once a dispute over charges is
registered, the CoJ is obliged in terms of its own Credit Control and Debt Collection
bylaws to investigate the complaint within 14 days and inform the customer in writing
of its decision “ as soon as possible after conclusion of the investigation” and to
instruct payment of any amount found to be owing within 21 days unless an appeal is
lodged within that period in accordance with the bylaws. It appears that none of this
has occurred.
[46] The details of the dispute alleged by the applicant is described with reference
to the founding affidavit filed in support of the main application – in essence, it is
alleged in that affidavit that incorrect charges were levied in respect of electricity
consumption at the property during 2019 – 2021. Two meters are installed there
namely a domestic meter (for the student accommodation section which is supposed
to be charged on a (lower) ‘residential tariff ’ and a commercial meter for the retail
portion charged at the (higher) ‘commercial tariff’.

[47] In respect of the commercial meter, the CoJ is alleged in the main application
to have conceded an overcharge of R 3 816 226.80 in its own investigation report .
That amount was indeed credited, but the CoJ failed (says the applicant) to reverse
the associated interest and penalt ies.

[48] The domestic meter was also faulty , says the applicant, and reprogrammed in
December 2020. Despite referral to the CoJ and CP for recalculation and
rectification, there has been no report or recalculation. In addition, the applicant
alleges that it was charged R 469 415.27 for electricity alone for the periods
September 2020 to June 2023. All these problems cause applicant to receive what
are described as “astronomical accounts for electricity consumption which is non -
sensical and convolute [sic].” At various stages, the overcharged amount (allegedly)
varied around the R 8m mark, reaching almost R 9m in the month of October 2022.

[49] The appl icant recognises its obligation in terms of Section 11 (3) of the CoJ’s
Credit Control and Debt Collection bylaws despite the dispute, to continue to pay “ an
amount at least equal to the average amount that was due and payable in respect of
16

rates or the municipal service concerned, as specified in the accounts for the
preceding three months which are not in dispute”.

[50] In its founding affidavit t he applicant relates the various occurrences since 10
November 2023 of demands from the CoJ’s debt collecting attorneys . That letter,
which serves as example, reads as follows:
“We act on behalf of City of Johannesburg Metropolitan Municipality
(hereinafter referred to as our client) to whom you are indebted in the sum of R5.857,594.69 in respect of Municipal Assessment Rates and/or services as
per our client's handover instructions dated 19/ 07 /2023.
The amount owing is for a period for which further details may be made available to you on request from our client .
We have been instructed by our client to demand from you. as we hereby do, payment of the sum of R5.857.594.69 which is due and payable directly to our
client bank account: The details are as follows
[Then follows the CoJ’s banking details.]
Alternatively use the easy pay number provided for in your monthly billing
statement or kindly make payment of the said R 5.857.594.69 at any of our
client's Rates Offices quoting the reference number.
We are further instructed to i nstitute legal proceedings against you for an
appropriate relief without further notice to yourself, should you fail, refuse
and/or neglect to make payment of the aforesaid amount within ten {10)
business days hereof, the legal costs of which will be for your account.
On having paid such amount, kindly email proof of payment (to our offices) to
the email address provided below .”

[51] In reply, applicant’s former attorney wrote the following letter on 14 November
2023:
“1. We address this letter to yourselves on behalf of ORDICODE (P TY) LTD
("our client).
2. We have been advised that our client received a letter from your offices dated 10 November 2023 on 13 November 2023 for payment of
R 5 642.481.15 in respect of its municipal account within 10 days.
17

3. We place on record that there are pending disputes on the account as well
as pending litigation in the High Court for finalization of the disputes on the
account.
4. In light thereof, our client is not liable for incorrect charges on the account
and therefore not liable for R 5 642 481.15 as per your demand.
5. Any legal action instituted against our client for the above- mentioned
amount will be vigorously defended.
6. In addition to the above, should there be any disconnection in the matter,
we will bring an urgent application for reconnection with punitive costs sought.
7. This is without prejudice to our client rights .”

[52] After receipt of this letter , the main application was opposed by the
respondents and answering and replying affidavits filed.
[53] On 11 April 2024, officials of the respondents arrived at the property and
disconnected the electricity supply (says the applicant) “ despite the pending litigation
on the account and without a pre- termination notice”. A letter from the former
attorney threatening an urgent application to court unless the electricity was
immediately restored had the desired effect.
[54] On 27 September 2024 the respondents’ officials again visited the property
and threatened disconnection, but without in fact terminating the supply of electricity.

[55] Repeated payment demands were made by the City of Johannesburg’s
collection attorneys, but these were repeatedly rebuffed by the applicant or its former
attorney. Each time, the City of Johannesburg’s attention was drawn to the pending dispute.

[56] On or about 22 November 2024, the respondents’ officials again arrived at the
property to disconnect the electricity supply without issuing a pre- termination notice.
The applicant was handed a “Customer Electricity Disconnection Card Level 2,”
which is annexed to the founding affidavit.

18

[57] The City of Johannesburg’s officials were again informed of the pending main
application, but they remained unmoved, stating that only a signed acknowledgment
of debt in the respondents’ favour or a court order would prevent disconnection.

[58] Another urgent demand was sent to the CoJ, which was unanswered but
seems to have had the desired effect because power was reconnected later in the
day on 22 November 2024.

[59] The applicant goes on to provide details of the severe disruption suffered
each time when the supply of electricity is terminated, including the hardship facing
the 200 or so students who depend on electricity for their studies especially at the
time of the year end exams.
[60] The CoJ/CP respondents delivered an opposing affidavit only on 4 December
2024, after the matter was called (unopposed) on 3 December 2024 when it stood
down for adjustments to be made to the proposed order. In the notice of motion, the
respondents were given until 28 November to deliver an answering affidavit.

[61] In the belated affidavit by Mr Ngwana, a legal adviser, the City of
Johannesburg applies for condonation of its late filing.

[62] The contents and style of this affidavit mirror those of the opposing affidavits
filed by Mr Ngwana in the other two matters considered in this judgment. The
carefully worded reservations noted above regarding the Erf 7[ …] matter are
repeated almost verbatim in this affidavit.

[63] This affidavit, as is the case in the others, is similarly cast in the form of heads
of argument paying scant attention to the pertinent facts alleged by the applicant.

[64] One exception is paragraphs 13 and 14 of Mr Ngwana’s answering affidavit
where he states the following:
“13. The Applicant does not pay for the electricity and it is curren tly indebted
to the Municipality for an amount of R5 857 594.69 as reflected in the
November 2023 Tax Statement.
19

14.The Applicant currently owes the Municipality an amount of
R7 069 370.74.”

[65] These allegations are denied in applicant’s replying affidavit.

[66] The problem for the CoJ as far as this dispute is concerned is that Mr
Ngwana , a legal adviser, as pointed out by this court in paragraph [45] of Millu’s
case , has no personal knowledge of the CoJ’s accounting. He cannot , as the court
found in Millu’s case , “ever be more than a conduit ” adding that “ the practice of a
legal advisor being a deponent to facts of which he has no personal knowledge must
stop.”

[67] In litigation, it is incumbent upon each party to engage substantively with the
factual averments made by their opponent. This involves addressing and responding to the specific allegations and evidence presented, thus enabling the court to render an informed and fair determination based on a comprehensive examination of the contested issues. This principle is articulated in a frequently cited passage from
Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371
(SCA): “[13] A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement
because there is no other way open to the disputing party and nothing more
can therefore be expected of him. But even that may not be sufficient if the
fact averred lies purely within the knowledge of t he averring party and no
basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his
case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say 'generally' because factual averments seldom stand apart from a br oader matrix of circumstances all of which needs
to be borne in mind when arriving at a decision. A litigant may not necessarily
20

recognise or understand the nuances of a bare or general denial as against a
real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There is thus a serious duty
imposed upon a legal adviser who settles an answering affidavit to ascertain
and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter. ”

[68] The CoJ failed to present any admissible evidence of the underlying facts to
counter the applicant’s version.

[69] It follows that the applicant has established it s entitlement to the relief
claimed. I am also persuaded about the urgency of the matter.
[70] As previously stated, part of the relief sought includes an order allowing the
applicant, in the event of termination (in breach of a court order), to appoint its own
professional contractors to reconnect services at the respondents’ cost. Counsel for
the CoJ contends that such relief is impermissible considering the following sentence
in paragraph [32] of City of Tshwane Metropolitan Municipality v Vresthena (Pty) Ltd
and Others 2024 JDR 1616 (SCA), where the court remarked that : “(i)t (the appealed
order) even sanctioned the illegal reconnection of electricity by civilians other than
the City .”
4
[71] The sentence relied on by the CoJ must be read in the context of the whole
paragraph of that decision, namely:
“From this it may be concluded that Vresthena and the other owners of the
sections had no right, even prima facie, to continue to receive electricity without payment for those services. The City was enjoined to implement the

4 The paragraph of the appealed order referenced by the SCA reads: “In the event that the first
respondent fails to comply with paragraph 2 of this order timeously, the applicant is authorised
to instruct an electrician and/or service provider to reconnect the electricity and/or water supply
in such event, the applicant reserves its right to claim such reasonable costs from the first
respondent .”
21

credit and debt collection measures against the Body Corporate and terminate
the supply of electricity to the Retail Park. The order of the high court failed to take this into account. It assumed, despite the history of ongoing nonpayment over many years, that Vresthena and the other owners had a right to receive
electricity and ordered the restoration of its supply without imposing the
reciprocal obligation on the owners for payment of the substantial arrear
amount. It even sanctioned the illegal reconnect ion of electricity by
civilians other than the City. The high court failed to consider whether Vresthena had other alternatives, when it clearly did. As already alluded to,
Vresthena and the other owners have recourse against the Body Corporate. It
is not enough for them to say that the Body Corporate is dysfunctional and,
therefore, it cannot take steps to rectify the situation regarding payment to the City for the electricity consumed by the commercial owners of sections in the Retail Park. ” [emphasis added]
[72] In my view, the comment in the SCA decision must be read in context. It does
not conclude that when a local authority, in breach of a valid court order, disconnects
services, the court is powerless to effectively address the breach, if necessary, by
authorising reconnection by a civilian contractor. Rather, the SCA’s remark is
confined to the specific circumstances of that case, namely where the court order improperly ‘ ordered the restoration of … supply without imposing the reciprocal
obligation on the owners for payment of the substantial arrear amount .’ Extending
this obiter dictum beyond those facts would lead to the absurd result that valid court
orders could not be enforced simply because the wrongdoer retains the power to
veto orders made against it .

[73] Having considered the facts, I am satisfied that a punitive order for costs is
justified.

[74] The order I make appears at the end of the judgment.

THE HYDE PARK MATTER

22

[75] This application was instituted against City Power (“CP”) and the City of
Johannesburg (“CoJ”) on 25 November 2024. The following substantive relief is
sought :
“2. The respondents are declared to be in contempt of the order of the court of
Yacoob J granted on 08 July 2020 ("the order").
3. Consequent upon the contempt a fine of R 500 000.00 is imposed on the
first and second respondents.
4. The first and second respondents ("the respondents") are ordered to
forthwith restore electricity supply to the applicant's business premises
situated at 9[ …] W[…] M[…] – M[…] DRIVE, H[ …] P[…], JOHANNESBURG
("the property").
5. Pending the final outcome of the action proceedings out of this court under
Case No: 2023/118006, the respondent's and any of its employees, agents
and/or contractors are i nterdicted and restrained from further disconnecting
the electricity supply to the property.
6. The order in paragraph 3 above shall operate as an interim interdict with
immediate effect.
7. In the event that the respondent's disconnect the applicants' electricity
supply after the granting of this order the applicant is authorised to instruct an
electrician and or service provider to reconnect the electricity supply, for which reasonable costs the respondents shall be liable.”

[76] The applicant conducts business as Shell, Hyde Park, at 9 […] W[…] M[…]
Drive (formerly W […] N[…] D[…]) in Hyde Park, Johannesburg (the “property”) .
[77] The founding affidavit recounts billing disputes between the applicant and the
respondents dating back to 2016. It is unnecessary to rehearse every detail of the dispute; it suffices to quote paragraphs 19– 22 of the founding affidavit:
“19. On 11 June 2019, the COJ issued an invoice starting with a zero balance
on the account, and then proceeded to bill an amount of R 6 117 237 .21. This
invoice is attached to the 2020 application as annexure "HF3".
20. The June 2019 invoice purports to include charges that dated back to August 2017, being two years prior. It included the following charges that are
patently incorrect:
23

20.1 A charge of approximately R3m for a single month, that being the
month of September 2017;
20.2 Various monthly electricity charges in the region of R 90 000.00 or more per month.
21. I suspect that the R3m September 2017 charge comprises of charges that
date back further in time, but which the COJ billed under a single month to avoid the effects of extinctive prescription on its claim. The usage it claims for September 2017 is impossible for the applicant to have consumed in a single month.
22. Even though the applicant is a business operating on a 7 day a week 24
hour a day basis, it is impossible for it to increase its consumption to the level
of R3m a month, even running at full capacity on all its electrical demand.”
[78] In August 2019, the applicant procured the services of an independent
external energy consultant, who installed meters on the applicant’s premises to monitor actual usage. It was determined that the applicant’s actual monthly usage amounts to approximately R40 000.00, which, according to the applicant, confirms
that a genuine dispute exists between the parties regarding the alleged overbilling.
[79] On 19 June 2020, the CoJ issued a pre -termination notice (warning of an
impending termination of the electricity supply).
[80] This prompted an urgent application by the applicant, resulting in an order
granted by Yacoob J on 8 July 2020 (“the Yacoob Order”), which states :
“1. The applicant's non- compl iance in regard to service and time limits are
condoned, and this application is heard as one of urgent [sic] in terms of Rule
6 (12) of the rules of the Uniform Rules of this Court.

2. That the respondents or thei r agents are pertaining to City of Johannesburg
Municipal Account No: 2[…]-, interdicted from cutting off the applicant's
electricity supply to the property known as Shell Hyde Park Gardens situated
at 9[…] W[…] N[…] Drive , H[…] P[…], Johannesburg ("THE PROPERTY") on
the condition set out in paragraph 3 and pending the final determination of the
remainder of this application.
24


3. Pending the final determination o f the remainder of this application the
applicant will pay to the second respondent, in respect of the supply of
electricity to the Property on its account , an amount of
R35 000.00 per month, payable within 7 days of receipt of an invoice from the
second respondent.
4. The respondents will render to the applicant an accurate accounting,
together with substantiating documents (includin g meter readings) in respect
of all amounts claimed by them on the account , setting forth the nature of the
outstanding charges, the periods to w hich they relate and all payments made
by the applicant within 60 days of the date of this order.
5. The parties will thereafter meet (whether remotely or otherwise) to debate
the aforesaid account within 30 days of it having been provided.
6. In the absence of the parties agreeing upon the amount(s) payable by the
applicant to the respondents in respect of the account pursuant to the above
debate or failing the debate occurring, either party may give written notice by e-mail to the other party of such event , in which case: -

6.1 The applicant will be afforded a period of 15 days within which to
supplement its founding affidavit;
6.2 The respondent's answering affidavits (if any) will be delivered
within 15 days from the applicant's supplementary founding affidavit
per the preceding paragraph falls due.

7. The remainder of the application is postponed sine die.
8. The costs are reserved"
25

[81] The applicant states that the CoJ has, to date, failed to comply with the
Yacoob Order in two respects:
1) It has failed to render an accurate accounting within 60 days, as
stipulated in paragraph 4 of that order; and
2) It has terminated the electricity supply to the applicant’s property on
multiple occasions, allegedly in contempt of the Yacoob Order, namely:
o 13 January 2021 (attempted disconnection);
o 19 January 2021 (disconnection);
o 18 August 2023 (disconnection);
o 18 December 2023 (attempted disconnection);
o 24 April 2024 (disconnection); and
o 20 November 2024 (disconnection), which precipitated the present
application, after two letters of demand (dated 20 and 22 November 2024)
went unanswered by the CoJ.

[82] The applicant explains that it therefore seeks similar relief to that previously
directed by the Yacoob order (i.e., an accounting).

[83] The applicant says that it complied with the Yacoob Order by making the
monthly payments for electri city consumption as directed by the court.

[84] The applicant also took to instituting action proceedings against the CoJ
based on the same dispute that gave rise to the Yacoob Order.

[85] The applicant asserts that the City of Johannesburg and City Power are in
contempt of the Yacoob Order, which they consented to and therefore are clearly
aware of. The applicant further states that: “(n)otwithstanding, as demonstrated
above, the respondents have repeatedly breached the provisions of the 2020 court
order by terminating supply to the property on various occasions .”

[86] Although the answering affidavit is labelled “respondents’ answering affidavit”
it is presented by Mr Ngwana (CoJ’s legal advisor) only on behalf of the CoJ. There is accordingly no affidavit for CP.

26

[87] In his affidavit, Mr Ngwana repeats the introductory statements previously
noted, acknowledging his lack of personal knowledge of the facts concerning the
accounts. He states that “the facts deposed to hereunder are known to me through
the documents which I have access to under the Municipality's system and also in
discussion with the colleagues employed by the department such as City Power
together with their sub – contractor s.” [underlined]
[88] The disclaimers , especially the underlined words, are inadequate to support
the introduction of hearsay evidence by Mr Ngwana. This is th e ratio of the Deputy
Judge President's decision in the matter of Millu , to which I shall later return in this
judgment . Mr. Ngwana fails to disclose the actual source of the purported facts (if
such facts were indeed obtained) .
[89] Mr Ngwana also denies that the CoJ is in contempt of the Yacoob Order.
[90] In support hereof, he says that “respondents rebilled the account and issued
statement of account to the applicant, which the applicant rejected and demanded …supporting documents .” During September 2020 respondents’ former attorneys
provided a report (a copy of which is enclosed) and they also passed a credit for R
1 161 447.07. The respondents continued to render invoices “based on actual
readings” as proved by invoices dated 7 May 2021 and September 2024. Mr
Ngwana concludes as follows (to explain why services were disconnected):
“(d)espite compliance with the Court order dated 08 July 2020, the applicant failed to
pay the amounts which were lawfully due and payable to the respondents, which led
to services being disconnected.” [91] Mr Ngwana addresses a prior application by the applicant for a finding of
contempt of the Yacob Order. That application was dismissed by Malungana AJ on 25 May 2023. A copy of the resulting decision, which the City of Johannesburg relies on, is attached to its answering affidavit. According to Mr Ngwana, the pending application for leave to appeal was not pursued. In reply, the applicant denies abandoning the appeal and contends that both the earlier contempt proceedings and the judgment are irrelevant to the present matter.

27

[92] Having read the judgment of Malungana AJ5, I note that it makes no reference
to the termination of the electricity supply in breach of the Yacoob Order. The only
breach considered by Malungana AJ was the City of Johannesburg’s alleged failure to render accurate accounts, as directed by Yacoob J. Accordingly, I agree with the
applicant that the Malungana decision is irrelevant to the issues before this Court
and offers no pertinent guidance in determining whether contempt of court has been
established.

[93] The CoJ’s answer to the application ultimately boils down to the following
points made in section [E] thereof under the heading: “ THE STATUS OF THE
APPLICANTS' CONSUMER AGREEMENT – 2[…]” where Mr Ngwana says the
following:
“37. The applicant before this Honourable Court is a consumer of the services
supplied by the Municipality under account number: 2[ …] where the
Municipality supply and charges the Applicants for the electricity.
38. In line with the terms of the consumer agreement concluded between the applicant and the Municipality the Municipality services a monthly tax invoice and that the applicant is obliged to pay the amounts provided in the tax
invoice.
39. In line with the latest tax invoice, the applicant is currently indebted to the
Municipality for an amount of R2 050 656.48;
39.1. I attach hereto as annexure "CoJ 1 the November 2024 tax invoice.
40. I reiterate that the account was billed actual readings for the periods up
until September 2024, and was only billed estimates for the periods October
and November 2024.
41. Despite compliance with the Court and the Municipality continuing to
supply services to the applicant in which the applicant has been consuming
such services:

5 There appear to be discrepancies between the “summary” of the Yacoob Order stated in the
decision by Malungana AJ and the Order actually signed by Yacoob J, which is uploaded on
CaseLines. In the signed Order, the monthly payment ordered by Yacoob J is R35,000, rather
than the R25,000 noted in the Malungana Judgment. Furthermore, what is identified as
paragraph [2.5] (the referee procedure) in the summary does not appear in the Yacoob Order
on CaseLines (see CL 074- 4).
28

41 .1. The applicant has been making short -payment to the account in that.6
42. The applicant is only not entitled to consume services from the
Municipality without making payments.
43. In support of the above, I attach hereto as annexure "C oJ 10" the
applicant's payment history which shows that the applicant makes sporadic payments towards the account without just cause.
42. The applicant is only [sic] not entitled to consume services from the
Municipality without making payments.
43. In support of the above, I attach hereto as annexure "CoJ10" the applicant's payment history which shows that the applicant makes sporadic payments towards the account without just cause.
44. This Honourable Court has pronounced in numerous judgments that there should be an obligation on the Consumers to pay for the services and
the Constitutional Court stated that it (si c) the Municipality's duty to disconnect
the supply of services in order to force Consumers to pay.
45. If regard is had to the facts set out above, and the fact that the applicant
on its own version has been approaching this Honourable Court in seeking to obtain orders (which others were dismissed) despite being provided with
all documents in support of the amounts claimed by the respondents, it
follows therefore that the applicant is approaching this Court in bad faith.
46. Now the applicant approaches the Court on urgent basis to declare
contempt of Court, whilst the Court has already pronounced in the judgment under case number 5802/2021 that the respondents have taken reasonable steps to comply with Court order.
47. This Court is called upon to enforce the rule of law and deny the applicant
the relief sought in the interest of justice.
48. Comprehensive legal submission shall be advanced at the hearing of this application.”
[94] Considering that the argument contained in these paragraphs is pivotal to the
CoJ’s defence (and was indeed elaborated upon at length before me by counsel for the CoJ during oral argument as envisaged in paragraph 48 of Mr Ngwana’s

6 The sentence is correctly copied from the answering affidavit as it is, stopping short of
explaining why it is contended that the applicant has been making “short -payments”.
29

answering affidavit) it deserves to be unpacked and carefully weighed – the following
is what can be distilled from the allegations by Mr Ngwana :
1) The first proposition is that there exists an agreement between the CoJ
and the customer in terms of which electricity is supplied;
2) The applicant is not entitled to consume services without paying for them;
3) The courts have held that it is the “Municipality's duty to disconnect the supply of services in order to force Consumers to pay”;
4) The applicant has made what is called “sporadic payments”. To demonstrate the point, Mr Ngwana refers to its printout of payments made
by the applicant “CoJ 10”;
5) The next stage of the argument relies on Malungana AJ’s finding that the
respondents took reasonable steps to comply with the Court order. This finding is presumably cited to counter the applicant’s allegation that the Yacoob Order was repeatedly breached by the CoJ through the termination of services.
[95] Consideration of CoJ’s Arguments:
1) It is undisputed that a contractual relationship exists between the
parties, requiring the applicant to pay for its electricity consumption. However, Mr Ngwana's observation on this point is irrelevant.
2) The general principle that municipalities may enforce payment for
utilities, including termination of services for non- payment, is acknowledged.
However, this principle does not address the applicant’s case, which is
founded on specific, unaddressed facts and the breach of the Yacoob Order
through service disconnection. The applicant does not seek exemption from
payment but contends it was incorrectly charged, and the Yacoob Order’s dispute resolution process was breached. The respondents must be held acco untable.
3) The CoJ’s arguments ignore the history of the dispute detailed in the
founding affidavit, which is inadequately addressed in the answering affidavit. Notably, the answering affidavit fails to acknowledge that the dispute was resolved following the Yacoob Order.
4) Two critical aspects of the Yacoob Order, left unaddressed by the CoJ,
are:
30

i)The Yacoob Order outlines steps to follow if the statement and debatement
process fails, requiring a notice of deadlock and a return to court for final resolution. The CoJ does not address this process.
ii)Paragraph 2 of the Yacoob Order interdicts cutting off the applicant's
electricity pending final determination, provided the applicant pays R35,000
per month. The respondents fail to counter the applicant’s claim that electricity
supply was cut in breach of this order.
5) Regarding the alleged "sporadic payments," the CoJ relies on a
printout covering payments from July 2020 (when the Yacoob Order was
issued) to November 2024 (the latest disconnection). Over this 52- month
period, payments total R1,785,000, averaging R51,000 per month. Most
payments match the Yacoob Order's requirement of R35,000 monthly, with three exceptions —higher payments in July 2023 and November 2024. These
cannot be described as "sporadic." Instead, the applicant appears to have paid more than required under the Yacoob Order.
[96] In Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at paragraph
[42] the relevant principles of civil contempt of court are summarised as follows:
“[42] To sum up:
(a) The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements. The respondent in such proceedings is not an 'accused
person', but is entitled to analogous protections as are appropriate to motion
proceedings.
(b) In particular, the applicant must prove the requisites of contempt (the
order; service or notice; non- compliance; and wilfulness and mala fides)
beyond reasonable doubt.
(c) But, once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in relation to
wilfulness and mala fides: Should the respondent fail to advance evidence
that establishes a reasonable doubt as to whether non- compliance was wilful
and mala fide, contempt will have been established beyond reasonable doubt.
31

(d) A declarator and other appropriate remedies remain available to a civil
applicant on proof on a balance of probabilities .”

[97] Upon application of the Fakie test to the evidence before this court, I find that
contempt of the Yacoob Order has been established on a balance of probabilities.
The CoJ has failed to provide any evidence to create a reasonable doubt regarding
whether its non- compliance with the Yacoob Order was wilful and mala fide. The
argumentative responses in Mr Ngwana’s affidavit are unpersuasive and irrelevant.

[98] Having made a finding of contempt, it is necessary to determine an
appropriate sanction and identify the individuals to be held accountable. The
repeated and prolonged instances of non- compliance may be regarded as
aggravating factors.
[99] The urgent motion court is not the appropriate forum to determine sanctions
or accountability in this matter. These issues do not require urgent resolution. Consequently, I have opted to render an order that enforces the existing Yacoob
Order while taking into consideration the current circumstances.
[100] The applicant has proposed a draft order seeking an interim interdict pending
the outcome of its action against the CoJ. It further requests a new order for payment of R35,000.00 per month to the CoJ for its current electricity supply, purportedly reflecting monthly usage.

[101] I find the applicant’s proposal to be problematic for the following reasons:
1) It disregards the Yacoob Order, which remains binding.
2) It risks perpetuating an inequitable arrangement whereby the
applicant’s fixed payment for utility charges may be unrealistically low or fall
below actual consumption levels, potentially resulting in unfairness to the CoJ
and other consumers, especially if delays extend over several years.
The most appropriate course is to issue a tailored order to address the
circumstances.

[102] The terms of the order are set out at the conclusion of this judgment.
32


THE FLAWS IN THE COJ’s ANSWERING AFFIDAVITS AND ARGUMENTS
COMMON TO ALL THREE MATTERS

Hearsay

[103] I refer to the pertinent passages in the Deputy Judge President's decision in
Millu, which also addressed a customer account dispute and Mr. Ngwana's style of
affidavits. These passages are relevant to the issues currently before me:
“[45] The practice of requiring a legal advisor to depose to the affidavits is
both a clue to the cause of the debacle and a manifestation of the City’s reckless attitude. It should be self -evident that the City’s legal advisor has no
personal knowledge of the accounting. He cannot ever be more than a conduit. His affidavit craftily states that he makes it based on the information provided to him, deftly evading the typical formula that the deponent has access to and control over the documents qua evidence. From whom the
facts were truly obtained is never said, and in this wholly unsatisfactory
manner, the anonymous officials who compose the accounts are shielded
from accountability. If Mr Ngwana is ever be cross -examined on his affidavits
it seems likely that embarrassment would soon follow. It must be stated
bluntly that the affidavits in litigation should be from persons who administer the accounts. The practice of a legal advisor being a deponent to facts of which he has no personal knowledge must stop.”
[50] I require, in respect of Mr Ngwana, to be told on affidavit why he should
not personally pay a portion of the costs awarded to the applicant. Such
representations must be uploaded by no later than 10 days after this judgment is delivered, whereupon I shall amplify and amend the order as to liability for costs, if appropriate to do so.
[51] The City must pay the applicant ‘s costs on the attorney and client scale.
The attorney of record for the City is interdicted from recovering a fee from the
City.
[52] This judgment must be brought to the attention of the Mayor, the City Manager, the head of revenue collection and the chief legal advisor .”

33

[104] In a supplementary judgment dated 29 April 2024 in Millu , the Deputy Judge
President concluded his consideration of appropriate sanctions in respect of Mr
Ngwana (in particular, whether he should personally bear a portion of the costs imposed by the court upon the City of Johannesburg), considering the explanatory affidavit filed as directed. The court found that Mr Ngwana acted bona fide on that
occasion and should accordingly not be penalised. T he comments which the Deputy
Judge President went on to make in the supplementary judgment are pertinent to the findings I have reached in the three matters addressed herein. I refer, in this regard, to the following paragraphs in the Deputy Judge President’s supplementary judgment in Millu :
[6] I(t) bears mention that the intrinsic dysfunctionality in the administration of
the City, as regards this category of dispute, upon which I have commented
adversely in the principal judgment, is vividly corroborated by these revelations (in Mr Ngwana’s explanatory affidavit) .
[7) The experience of the householder as described in this matter is no aberration. In the principal judgment I alluded to the observation of Strydom J
on a similar debacle in which it seems the same legal team from the City were
implicated. As fate would have it, Chetty J handed down, on 5 April 2024, an
extensive and comprehensive judgment dealing with the same genus of
dysfunctionality in the billing by the City. (Ackerman v City of Johannesburg
and others [2024] ZAGJHC 334 (GJ)) The pattern of administrative failure that
ends up in litigation at the expense of the ratepayers is a disgrace.
[8] The crisis of accountability - or rather, the lack thereof - in public
institutions must be arrested. The suggestion that the executive officers of the
City be cited in their personal capacities seems an appropriate practice to be
adopted by litigation attorneys and I encourage that to be done. Accountability
from those who are culpable must be exacted. ”

[105] It is alarming that, despite the two judgments in Millu and at least three other
decisions of this court
7 (where the City of Johannesburg was similarly criticised), and

7 Ulcombe v City of Johannesburg 18969/2022 (2023 02 01 ) per Strydom J; AFHCO Calgro M3
Consortium (Pty) Ltd v City of Johannesburg Metropolitan Municipality and others 2023 JDR
3337 (GJ) per Benson AJ ; Ackerman v City o f Johannesburg (2022/9392) [2024] ZAGPJHC
334 (5 April 2024) per Chetty J https://www.saflii.org/za/cases/ZAGPJHC/2024/334.html ;
Afhco Calgo M3 Consortium (Pty) Ltd v City of Johannesburg Metropolitan Municipality and
34

notwithstanding the principal decision in that matter — which contained explicit
warnings against repeating the same unacceptable conduct —was directed to be
brought to the attention of the Mayor, the City Manager, the Head of Revenue
Collection, and the Chief Legal Advisor, the grave concerns expressed by the
Deputy Judge President in the March and April 2024 decisions in Millu appear to
have been disregarded. This attitude demonstrates a troubling indifference to
accountability and oversight, coupled with a marked disregard for the authority of the
Court.

Failure to deal squarely with the facts

[106] The same practice is apparent, namely the presentation of legal argument
rather than a substantive response to the facts, as required by the established practice of our courts. In this regard, I refer to Reynolds NO v Mecklenberg (Pty) Ltd
1996 (1) SA 75 (W) at 79B –H:
“….it is usually necessary in motion proceedings for the respondent's attorney
also to obtain from his client and his client's witnesses the documents and
statements which provide the raw material for the drawing of affidavits. If the
applicant's attorney has drawn the applicant's affidavits carefully , the
respondent's affidavits can usually be kept very short. Most of the facts
alleged by the applicant, if he is an honest man, should be common cause and can simply be admitted by the respondent. There may be one or two disputes of fact. If there are, they should not be disguised in a mass of
indignant argument and expostulation, such as the frequently encountered
phrase 'it is highly significant that the applicant has failed to take this
honourable Court into his confidence about . . .', and other such useless verbiage. Whilst that particular phrase has not been used in these papers, there are considerable passages of argument in which facts are obliquely
hinted at and not properly stated. To take one example from each side, at p
64-8 Beinash presents an argument in support of his theory that the applicant
is driven by an improper ulterior motive. Facts are introduced merely to
support the argument. They are not set out in the context of the sequence of

Others (2022/322) [2024] ZAGPJHC 1057 (18 October 2024) per Amm AJ
https://www.saflii.org/za/cases/ZAGPJHC/2024/1057.html .
35

events in which they occurred. In his replying affidavit the applicant has used
a similar technique, for example at p 147 para 6.6, where the following appears:
'While Beinash accuses me of a lack of bona fides and of acting with an
ulterior motive, he has not informed this Honourable Court of the recent
changes in the shareholding and directorate of the respondent, or the reasons
behind such changes. Rather than explain the motive behind such changes
he simply tells this Honourable Court that he is a director of the respondent as if he has been one for a lengthy period of time.'
And so on.
Any allegation of fact by the applicant can and should (if appropriate) be
challenged with a denial and with a counter -allegation containing the
respondent's version of the disputed proposition of fact .”

Regrettably, the City of Johannesburg’s answering affidavit s in all three matters fail
to comply with these basic requirements. By way of illustration, I refer to the following :

1) Section [A] of the answering affidavit in the Hyde Park matter consists
of a lengthy excursus (including an unidentified quotation from a court judgment) presented under the heading, “OBLIGATIONS OF THE COURTS IN OBSERVING THE SEPARATION OF POWERS AGAINST OTHER ARMS OF GOVERNMENT AND THE PROCEDURE TO DECLARE A DISPUTE
UNDER SECTION 102 OF THE SYSTEMS ACT,” which purports to support a
series of argumentative contentions. It is not apparent how this portion assists
in determining the relevant facts.
2) In the Erf 7[ …] matter, Mr Ngwana ’s affidavit is almost exclusively
argumentative.
3) In the matter of Ordicode, the answering affidavit of Mr Ngwana,
addressing "lack of urgency," states: "The Applicant approached this Honourable Court on 19 November 2024 and they were reconnected on 20 November 2024" (refer to paragraph 16). It further asserts: "The Applicant has brought this matter (seeking to declare contempt) as one of urgency." In
response, the a pplicant highlights that the disconnection took place on 22
36

November 2024, with reconnection on the same day, and clarifies that they do
not seek a declaration of contempt. I concur with the a pplicant that Mr
Ngwana (and the lawyer who prepared the affidavit for him) appear to have
replicated allegations from other documents, which are irrelevant to the facts
of the Ordicode case. The careless drafting of documents by the respondents
and their legal advisers is reflective of the negligent attitude they exhibited
throughout the entirety of the proceedings.

Shortcomings in the presentation of argument

[107] The Public Protector of South Africa v The Chairperson of the Section
194(1) Committee and Others (627/2023) [2024] ZASCA 131 (1 October
2024) paragraph [48]:
“Brevity is the hallmark of good advocacy. Clarity of thought, logical
coherence and conciseness of presentation are the product of painful
preparation. Said Winston Churchill: ‘If you want me to speak for two minutes,
it will take me three weeks of preparation. If you want me to speak for thirty
minutes, it will take me a week to prepare. If you want me to speak for an
hour, I am ready now.’ Exasperated sighs, soapbox oratory, empty rhetoric,
political posturing, theatrical gestures and long-winded dismissive non -
sequiturs have no place in a courtroom, particularly in response to searching
questions from the bench. The taking of ‘miserable, pettifogging point[s]’, as
Innes CJ described them over a century ago, are bound to fail. The learned
Chief Justice added: ‘But points of that kind do commend themselves to a
certain class of practitioner, and do undoubtedly possess an attraction for a
certain stamp of mind. . .’8 ”

[108] After considering the extensive arguments presented in these three matters, I
am compelled to acknowledge that the criticisms highlighted by the SCA in the
Public Protector case apply to the respondents' submissions. Their arguments were
repetitive, verbose, rife with non- sequiturs, and lacked logical coherence.
Additionally, during oral submissions (and in the papers as I have pointed out) , the

8 Incorporated Law Society v Bevan 1908 TS 724 at 730.
37

respondents inappropriately accused their opponents of ambushing, dishonesty, and
abuse of court processes. Their submissions were unstructured and disorganized, and they erroneously cited orders from other courts, devoid of reasons, as authority. This approach mirrors the 'soapbox oratory' critiqued by the SCA. This is
unacceptable and must cease immediately.

THE SANCTION [109] I would be remiss in my duty if I did not take further action in respect of the
repeated failings demonstrated by the legal representatives and legal adviser of the
City of Johannesburg and its associate enti ties identified in this judgment and those
cited herein (including the four decisions of this court referenced in footnote 6) .

[110] I echo the profound concerns articulated by the Deputy Judge President in the
Millu judgments (and the others) regarding the intrinsic dysfunctionality within the
City of Johannesburg's administration, especially in disputes of this nature. As emphasized at the outset, it is imperative for the City of Johannesburg (CoJ) to take
decisive remedial action. The customers and ratepayers of CoJ deserve nothing
less.

[111] Before any sanction is imposed for the apparent failure by the City of
Johannesburg’s legal representatives and Mr Ngwana to heed the many warnings of
this court and for persisting in a pattern of submitting inadequately prepared papers
and unmeritorious arguments at the expense of the City’s ratepayers, it is necessary
to afford them an opportunity to make representations to the court. Accordingly, I
issue the following invitations:
1) The attorneys and counsel who represent the respondents are invited
to file representations within 30 days of publication of this order,
demonstrating why they should not be prohibited from charging or recovering
any fees from the City of Johannesburg, City Power, or Johannesburg Water
for work performed in respect of the matters decided in this judgment, considering their apparent failures identified herein;
2) Mr. Ngwana, the City’s legal advisor, is invited to file representations
within 30 days of publication of this order , demonstrating why he should not
38

be personally ordered to pay 20% of the costs incurred by the City of
Johannesburg and City Power in the three matters.
If such representations are not filed in a timely manner, or if they are deemed unpersuasive, supplementary orders to that effect will be issued.
Wherefore the following orders are made:
A. In ERF 7 […] ROBINDALE FIVE (PTY) LIMITED // CITY OF
JOHANNESBURG METROPOLITAN MUNICIPALITY Case Number: 24 -
136466 [No. 2 on the roll] :
1) The Respondents are afforded the opportunity within 30 (thirty ) days to
issue summons against the applicant for the disputed arrears of R139,586.65
in a court or other tribunal with jurisdiction, in line with the November 2024 tax
invoice, per the applicant’s account under number 2401819478, failing which
the applicant is entitled to approach this court on motion (with service on the
respondent) for a declaration to the effect that the disputed arrears amount
has prescribed.
2) The Respondents are interdicted f rom disconnecting the electricity
and/or water supply to the property based on the disputed arrears, pending
the final determination of the rights of the parties and outcome of litigation
described in paragraph 2 above.
3) The Respondents are ordered to pay the c osts of the application jointly
and severally, in solidum, the one paying the other to be absolved, on the
attorney and client scale.
B. In ORDICODE (PTY) LTD // CITY OF JOHANNESBURG Case
Number:23- 077080 [No. 7 on the roll] (“the Ordicode matter”):
1) The respondents are interdicted and restrained from terminating or
causing or instructing the disconnection and/or termination of the electricity
supply to applicant’s property at 85 Wolmarans Street Johannesburg, without
a court order to the contrary based on the disputed charges and which
disputes are captured in the main application, under case number 23-077080
and pending the resolution of the disputes of the main application already
before the Honourable Court for consideration.
2) In the event that the respondents again disconnect the applicants’
electricity supply (“the supply of electricity”) to the applicant’s property at 85
Wolmarans Street Johannesburg, in breach of this O rder, and thereafter fail to
39

reconnect the supply of electricity within two hours of receiving a request (by
email or telephone call) to do so, the applicant is hereby authorized to engage an electrician and/or service provider to reconnect the supply of electricity. The reasonable costs incurred in effecting this reconnection shall be borne by
the party or parties responsible for the breach.
3) The Respondent is ordered to pay the costs of the application on the
attorney and client scale.
C. In HYDE PARK GARDENS (PTY) LTD // CITY POWER
JOHANNESBURG SOC LIMITED & OTHER Case Number: 20/15428 [No. 9 on the roll] (“the Hyde Park matter”):
1) The second respondent (City of Johannesburg) is found to be in
contempt of paragraph 2 of the Order made by the honourable Justice
Yacoob on 8 July 2020 under case number 2020/15428 [“the Yacoob Order”];
2) The questions of:
i. the appropriate sanction for the contempt of the
Yacoob Order ;
ii. which individuals , if any, should be sanctioned; and
iii. the final determination of case number 2020/15428
(including the resolution of all the disputes arising in respect of City of
Johannesburg Municipal Account No: 2[…] which are referenced in the
Yacoob Order) ,
are referred for the hearing of oral evidence before me (or another
Judge as the DJP may direct) on a date and at a time to be determined by the Deputy Judge President .
3) Witness statements
i. The evidence shall be that of any witnesses whom the parties or either of them may elect to call, subject, however, to what is provided in para. 3 .2 hereof.
ii. Neither party shall be entitled to call any witness unless:
a) it has served on the other party at least 1 5 days
before the date appointed for the hearing (in the case of a witness to be called by the respondent s)
and at least 10 days before such date (in the case of a witness to be called by the applicant), a statement
40

wherein the evidence to be given in chief by such
person is set out; or
b) the Court, at the hearing, permits such person to be called even though no such statement has been so
served in respect of his evidence.
4) Either party may subpoena any person to give evidence at the hearing,
whether such person has consented to furnish a statement or not.
5) The fact that a party has served a statement in terms of para. 3.2
hereof, or has subpoenaed a witness, shall not oblige such party to call the
witness concerned.
6) Within 30 days of the making of this order, each of the parties shall
make discovery, on oath, of all documents relating to the issues referred to in
para. 2 thereof, which are or have at any time been in the possession or
under the control of such party.

7) Such discovery shall be made in accordance with Rule of Court 35 and
the provisions of that Rule with regard to the inspection and production of documents discovered shall be operative.
8) In the event that the respondents again disconnect the applicants’
electricity supply to Shell Hyde Park, located at 9[ …] W[…] M[…] Drive, Hyde
Park, Johannesburg (“the supply of electricity”), in breach of the Yacoob
Order, and thereafter fail to reconnect the supply of electricity within two hours
of receiving a request (by email or telephone call) to do so, the applicant is hereby authorized to engage an electrician and/or service provider to reconnect the supply of electricity. The reasonable costs incurred in effecting
this reconnection shall be borne by the party or parties responsible for the
breach;

9) The incidence of the costs incurred up to now shall be determined after
the hearing of oral evidence.
41

D. Respondents’ attorneys and counsel of record are invited to make
representations to this Court within 30 days of the publication of this order,
demonstrating why they should not be prohibited from charging or recovering
any fees from the City of Johannesburg, City Power, or Johannesburg Water
for work performed in respect of the matters decided in this judgment in the
light of their failures identified herein. If such representations are not filed in a
timely manner, or if they are deemed unpersuasive, supplementary orders to
that effect will be issued. E. Mr Ngwana, the CoJ’s legal advisor, is invited to make representations
to this Court within 30 days of the publication of this order, providing reasons
why he should not be personally ordered to pay 20% of the costs incurred by the CoJ and CP in these three matters, arising from his failure to heed the Deputy Judge President’s warning in paragraph [45] of the decision in Millu
(case number 25039/2021). If such representations are not filed in a timely manner, or if they are deemed unpersuasive, supplementar y orders to that
effect will be issued.
F. This judgment, as well as the following decisions —similarly critical of
the administration of the City of Johannesburg,
Ulcombe v City of Johannesburg 18969/2022 (2023 02 01) per Strydom J;
AFHCO Calgro M3 Consortium (Pty) Ltd v City of Johannesburg Metropolitan Municipality and others 2023 JDR 3337 (GJ) per Benson AJ (23 August
2023) ;
Millu v City of Johannesburg Metropolitan Municipality and Another
(25039/2021) [2024] ZAGPJHC 419 (18 March 2024) per Sutherland DJP;
Ackerman v City of Johannesburg (2022/9392) [2024] ZAGPJHC 334 (5 April
2024) per Chetty J link;
Millu v City of Johannesburg Metropolitan Municipality and Another (supplemental judgment) (25039/2021) [2024] ZAGPJHC 420 (29 April 2024)
per Sutherland DJP;
Afhco Calgo M3 Consortium (Pty) Ltd v City of Johannesburg Metropolitan
Municipality and Others (2022/322) [2024] ZAGPJHC 1057 (18 October 2024) per Amm AJ ,
must be brought to the attention of the following officials of the City of
Johannesburg:
42

a. The Executive Mayor;
b. The City Manager;
c. The Head of Revenue Collection;
d. The Chief Legal Advisor;
e. The Chief Executive Officer of City Power;
f. The Chief Executive Officer of Johannesburg Water.
They are invited, within 30 days, to respond to:
The finding of contempt of court in the Hyde Park matter (refer to paragraph
[97]); and
The flaws in the answering affidavits and arguments common to all three
matters (described in paragraphs [1] , [2] and [103 ] – [111] of this judgment).
They are further invited to respond to the criticism expressed in the six
previous decisions of this court listed above.
Any response, or lack thereof, will be duly considered when determining an
appropriate sanction for contempt, addressing the outstanding order for costs in the Hyde Park matter, and assessing the necessity for further remedial
action at higher levels of the governmental hierarchy .
G. The parties and relevant officials of the City of Johannesburg are
directed to email any representations delivered in terms of paragraphs D - F
above to the Registrar of the court, Mr. L Mabasa, at LMabasa@judiciary.org.za for the consideration of the court , copied to the
applicants’ attorneys in the three matters identified in A to C of this order and
the Secretary of the DJP’s Office, at secretarydjp@judiciary.org.za.

BADENHORST AJ
JUDGE OF THE HIGH COURT
Heard: 2 – 5 December 2024
Judgment: 6 January 2025

APPLICATION APPEARANCES
ERF 7[...] ROBINDALE FIVE (PTY)
LIMITED // CITY OF JOHANNESBURG For the applicant : Adv B Casey
For the respondent :
43

APPLICATION APPEARANCES
METROPOLITAN MUNICIPALITY
Case Number: 24- 136466 Adv E Sithole
Instructed by: Ramatshila – Mugeri
Inc

ORDICODE (PTY) LTD //
CITY OF JOHANNESBURG
Case Number:23- 077080 For the applicant: Adv M Rodrigues
For the respondent:
Adv E Sithole
Instructed by: Madhlopa & Thenga
Inc

HYDE PARK GARDENS (PTY) LTD //

CITY POWER JOHANNESBURG SOC
LIMITED & OTHER
Case Number: 20/1542 For the applicant: Adv Yacoob Alli
with
Adv Zaheera Hoosen
For the respondent:
Adv E Sithole
Instructed by: Madhlopa & Thenga
Inc