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
GAUTENG DIVISION, PRETORIA
CASE NO: 088813/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
SIGNATURE
DATE : 28/02/2025
In the application between:
SIBUSISIWE LORRAINE N GOMANE Applicant
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First R esponden t
THE MUNICIPAL MANAGER: TSHWANE METROPOLITAN
COUN CIL Second Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LABUSCHAGNE J
[1] On 28 February I issue d an order annexed marked “X” direc ting the
reconnection of the applicant’s water supply together with further relief , in
cluding directing the applicant to pay for arrears in respect of own
consu mption . The o rder states that t he reasons will follow. These are the
reasons .
[2] The applicant resid es at Unit [...], H[...] H[...] G[...] Estate Stand No. 2[...],
B[...] Ext. 1 […], Olympus, Pretoria. She approached the urgent court on the
basis of urgency for the restoration of the water supply to the premises,
which water supply was disconnected by the municipality on 14 February
2025. The disconnection notice reflected an outstanding amount of
approximately R70 000.00 on municipal account number 5[...]. Urgency is
self-evident . Access to water is a Constitutional right and the absence
thereof results in an infringement of a multitude of rights includ ing dignity.
[3] The parties have been at loggerheads for years . The applicant’s attorneys of
record wrote to the respondents’ attorneys, threatening to enrol a previously
launched contempt application . An attempt to arrange a round t able
discussion to find a way forward, met with no response.
[4] The applicant approached the court for urgent relief seeking the restoration
of the water supply , restraining the respondents from implementing any
credit control measures pendente lite , until a proper account procedure had
been adopted between the parties.
[5] In an amended notice of motion, the applicant now moves on the basis of
urgency for the following relief:
“2. Declaring that the respondents’ disconnection of the water supply at
Unit [...], H[...] H[...] G[...] Estate Stand No. 2[...], B[...] Ext. 11,
Olympus, Pretoria, Gauteng Province to be unlawful and wrongful .
3. Directing that the respondents reconnect the whole water supply at
the residence mentioned in paragraph 2 above with immediate
effect.
4. Directing the respondents to pay the costs of this application on an
attorney and client scale …”
[6] The applicant and the respondents have had various court proceedings
since 2020 all relate d to the water supply to the applicant’s property.
[7] On 24 January 2020, the applicant obtained an order before Fabricius J in
the urgent court. The following substantive relief was granted:
“2. The respondents’ termination of the water supply to the applicant’s
property is wrongful and unlawful.
3. The respondent is to reconnect the water supply to the applicant’s
property forthwith.
4. Pending finalisation of Part B of the application, the order in terms of
Prayers 2 and 3 of the operator’s interim relief with immediate
effect.”
[8] On 18 June 2021 the applicant received an account for R13 203.21. In a
letter of 5 July 2021, the applicant lodged a dispute. She contended that her
average bill for the previous 6 months was around R1 427.00 to R1 083.00,
which she had paid.
[9] She requested a reconciliation with her other payments. In that letter she
refer to the municipality that she had obtained a court order of 24 January
2020 which was served on the municipality’s legal department.
[10] In the years that have passed since then, the City has given no attention to
resolving this dispute.
[11] In terms of section 102(2) of the Municipal Systems Act, 32 of 2000, the
municipality is precluded from implementing its debt credit control policy until
the dispute for the aforesaid amount has been resolved.
[12] The City disconnected the applicant’s watwe supply again and o n 8 June
2024, the applicant obtained another order before Nalane AJ. Nalane AJ
directed the municipality to restore the water supply forthwith. Such order
would serve as an interim interdict pending finalisation of Part B
proceedings. The Part B in question was a review application for the setting
aside of the decision to disconnect the applicant’s water without a court
order.
[13] The aforesaid Part B proceedings have not been finalised.
[14] On 28 August 2024 an order was obtained by M olopa J, who issued a rule
nisi by agreement between the parties. This rule nisi discharged in
November 2024 due to non -compliance by the applicant’s former attorneys
with the directives of the Deputy Judge President.
[15] The aforesaid agreed rule nisi was obtained when a contempt application
would serve before court. The day before the hearing the City tendered
costs and agreed to a rule nisi. The order of Molopa J reinforces the
applicability of the order of Nalane AJ of 8 June 2024.
[16] The applicant has not paid for her own consumption regularly. After being in
arrears for 4 months, payments were made in January 2025 and in February
2025.
[17] The City contends that its creditor control policy entitles the City to
disconnect water when, despite there being a pending dispute, the property
owner fails to pay interim consumption on a month by month basis (clause
13 of the policy).
[18] The City provided advance termination notices for the disconnection of the
water supply. The City contends that the water has not strictly speaking
been totally disconnected. A trickle of water is left. This is disputed by the
applicant, who contends that the taps are dry. She has daughters who
cannot attend to their hygiene in such circumstances.
[19] The applicant contends that the disconnection is unlawful, constitutes an
infringement upon her right to water in terms of section 27 and a right to
dignity.
[20] During argument on behalf of the City, it was contended that the policy and
the bylaws in terms of which it was passed are binding and empowers the
City to act as it has in disconnecting the applicant’s water supply. It is for
non-payment of interim consumption that her water was disconnected.
[21] The approach of the applicant is ostensibly that, for as long as the dispute
pertaining to the account for R13 203.21 in 2021 was launched, no steps can
be taken to disconnect her water. She has launched contempt proceedings
for non -compliance with the order of Nalane AJ and this gave rise to the rule
nisi by agreement before Molopa J. The contempt proceedings have not
been finalised.
NON -PAYMENT OF ARREARS
[22] In Tshwane City Metropolitan Municipality v Vresthena (Pty) Ltd and
Others 2024 (6) SA 159 (SCA), the SCA considered an interim order
granted by the Court a quo in terms of which the City was directed to restore
electricity to the body corporate of Zambezi Retail Park. The order also
directed Zambezi Retail Park to pay for its consumption and, where
consumption is disputed, to declare formal disputes. This relief was granted
in Part A proceedings. Part B proceedings related to a review of the City’s
rejection of an application for a separate electricity connection.
[23] In criticising the or order of the Court a quo (which was set aside) the court
stated the following at paragraph [13]:
“The orders that were granted by the high court have a number of
shortcomings. First, the order does not make reference the application for
an additional electricity service connection as sought by Vresthena in
paragraph 1 of Part B of the notice of motion. Second, the duration of the
order is indefinite , which means that it shall endure until such time that the
legal process in Part B is completed. This leave s all the parties in a state of
uncertainty. Third, there is no causal link between the order granted by the
court in Part A and Part B of the notice of motion. Part A directs the City to
continue to supply electrici ty and water to the entire Retail Park pending the
resolution of Part B. However, Part B is directed only at a possible review of
a possible decision by the City to refuse Vresthena’s applicat ion for a
separate supply to the units or sections owned by it. What is more, there is
no time frame laid down for the anticipated review or for Vresthena to file its
application with the City for a separate electricity supply as contemplated in s
7 of its By -laws. Therefore, the court order does not set out steps to regulate
Part B of the application. Fourth, the restoration of electricity without the
provision for the payment of arrears creates an anomaly in that the City is
forced to provide electricity to the property where payment is not being
made. Lastly, the chilling effect of the order is that it compels the City to act
contrary to the prevailing law and its constitutional mandate: it must
continue to supply electricity to users who are in arrears and have a history
of non -payment for the foreseeable future, and at the same time the City is
denied the statutory power to terminate services without approaching a court
to obtain leave to do so. These characteristics of the order demonstrate that
its effect is final in nature. At the very least, for reasons I traverse below, this
is one of those cases where the relief sought ought to have never been
granted, and the order is appealable on this basis too.”
[24] The SCA in the aforesaid Vresthena judgment has expressed the
countervailing considerations of parties to a dispute pertaining to an account
for provision of water and electricity. In the face of a declared dispute, the
City is precluded from implementing its credit control policy. However, the
mere declaration of dispute does not have the effect of permitting the
account holder to obtain water and electricity without paying for subsequent
consumption.
[25] If this were a matter to be determined purely with reference to the City’s
credit control policy, then the City would be acting within its rights to
terminate water supply due to non -payment of consumption after a dispute
as envisaged in section 102(2) of the Systems Act has been declared.
[26] What complicates the City’s position is that there is a court order by Nalane J
directing it to reconnect pending finalisation of proceedings in Part B.
[27] It may very well be that the order of Nalane J may be subjected to the same
criticism vocalised by the SCA in Vresthena supra. However, that judgment
stands until set aside. It is binding on the City in terms of sec 165 (4) of the
Constitution
[28] The same parties in Vresthena were in a similar dispute before me in
Vresthena (Pty) Ltd v Tshwane City Metropolitan Municipality and
Others 2023 (JDR) 274 1 GP in which I stated as paragraph [35] etc:
“[35] In this instance the applicant has had electricity cuts since 12 August
2022. It has disbursed R19 million on diesel to keep generators
going. These expenses were incurred in the face of at least three
court orders directing the City to restore the electricity connection.
[36] The City contends that the applicant has substantial arrears for rates
and taxes, and contends that there has been tampering by means of
illegal electricity connections. The City’s bylaws entitle it to terminate
electricity supply immediately.
[37] There is clearly a protracted and unsav oury history between the
parties. Nevertheless, the court orders granted need to be complied
with and it is not within the City’s power to disregard them on the
basis of its own contentions that it would be incompetent in law.
Until set aside, such orders are valid and need to be adhered to.
This is more so in the case of an organ of state, in light of its
obligations under Sec 165(4) of the Constitution.
[38] Much of the debate from the City related to implementation of the
order compelling the City to be involved in unlawful conduct. None
of the arguments are persuasive. The court’s order would clothe the
conduct of the City with the legality that it requires, particularly where
the relief flows from what the court has assessed as being just and
equitable in the circumstances. The current application has been
brough about because of the recalcitrance of the City in complying
with a court order pending a n appeal. The powers and obligations of
municipalities are constitutional matters, and the enforcement of
court orders is a constitutional issue as well. I am therefore satisfied
that the matter before me attracts sufficient constitutional interests to
trigger the court’s powers under Sec 172(1) and (a). The declarator
that is sought in Prayer 2 is aimed at endorsing and confirming the
effectiveness of the full court order. By implication the granting of
the declarator would flow from what is clearly unlawful conduct on
the part of the City in not complying with the full court order.”
[29] In light of the Nalane AJ order being in existence, and in light thereof that the
City has not assailed it or sought to have it set aside, it is binding on the City
of Tshwane.
[30] In light thereof, the City is obliged to adhere to the court order and to restore
electricity supply pending finalisation of Part B as envisaged in those
proceedings.
[31] The applicant as dominus litus has become supine upon obtaining an interim
order for restoration. But i t is within the powers of the City to have Part B
enrolled for the purposes of finalising those proceedings.
[32] The applicant has deliberately not advanced Part B proceedings, having
obtained the benefit of the interim order to reconnect electricity. It is also
opportunistic on the part of the applicant to seek to rely on the Nalane AJ
order as a shield against disconnection while she has accrued arrears since
the declaration of the dispute which she has not serviced or made the
subject of a payment arrangement in respect of the arrears.
[33] The order I granted aimed at achieving three things. Firstly the reco nnection
of the applicant’s water supply. Secondly, to provide for the payment of
arrears by the applicant and for the resolution of the 2021 dispute. Thirdly, to
bring the Part B proceedings in the order of Nalane AJ to fin alisation.
[34] In light thereof that both parties are at fault, neither of them will obtain a cost
order in their favour.
[35] In the premises I ma de the aforesaid order.
BY ORDER OF COURT
LABUSCHAGNE J