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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 022825/2024
In the application between:
WILHELMINA MAGDALENA DREYER Applicant
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent
THE MUNICIPAL MANAGER: CITY OF TSHWANE
METROPOLITAN MUNICIPALITY Second Respondent
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e-mail. The date for the handing down of the
judgment shall be deemed to be 8 April 2025 .
JUDGMENT (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : YES
…8/4/2025 ….. ………………………...
DATE SIGNATURE \:. D 'c,
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'Cor~ .
LG KILMARTIN , AJ:
A. INTRODUCTION :
[1] This is the return day in respect of a rule nisi.
[2] The application for interim interdictory relief was brought in the urgent court
on 5 March 20 24 (“the urgent application”) and the respondents agreed the day
before, i.e. on 4 March 2024, to the granting of an interim order.
[3] I was required to consider whether to confirm or discharge the rule nisi.
[4] It was pointed out to the applicant that paragraph 3.2 of the rule nisi had
become academic in the sense that the first and second respondents ( collectively
referred to as “the respondents”) had reconnected / unblocked / unrestricted the
electricity supply to No. 1[…] C[…] Road, Shere AH, Pretoria ( “the premises”) after
the hearing of the urgent application. The applicant confirmed that it required a final
order in the following terms:
[4.1] declaring that the termination / disconnection / discontinuation /
blocking / rest riction of service to the electricity supply to the
premises was unlawful;
[4.2] interdicting and restraining the respondents from charging the
applicant a reconnection fee as a result of the unlawful restriction /
termination / disconnection / discontinuation / blocking of service;
and
[4.3] interdicting and restraining the respondents from unlawfully
terminating / disconnecting / blocking / restricting the supply of
electricity to the premises.
[5] The aforesaid order relates to the relief that was sought in paragraph s 3.1,
3.3 and 3.4 of the notice of motion in the urgent application.
[6] Before dealing with the merits of the application, it is necessary to consider
the relevant background facts as they constitute the fundamental backdrop against
which this dispute shou ld be adjudicated .
B. RELEVANT BAC KGROUND FACTS :
[7] The applicant is the owner of the premises and has a contractual relationship
with the first respondent for the delivery and supply of electricity and other services
to the property .
[8] The applicant has the right to be supplied electricity at the premises , upon
tender of payment.
[9] The premises is currently zoned for agri cultural purposes and is currently
listed as “non-permitted use ” which means that the first respondent is of the view that
the property is b eing use d by the a pplicant for something different tha n what it w as
zoned for.
[10] On or about 6 September 2022 , under case no. L123/22, a n action was
instituted by the first respondent in the Tshwane Central Magistrate’s Court (“the
pending Magistrate’s Court dispute” or “the pending Magistrate’s Court
proceedings”) .
[11] The pending Magistrate’s Court dispute appears to relate to alleged
contraventions of the Spacial Planning and Land Use Management Act, 16 of 201 3,
and does not relate to overdue amounts in resp ect of her account .
[12] Subsequent to the pending Magistrate’s Court proceedings being brought,
the applicant brought an application in this Court under case no. 2023 -129520 (“the
pending High Court application”). From a perusal of the founding affidavit, t he
dispute has nothing to do with the amounts which were due in respect of the account
itself. The applicant is seeking an order to have inter alia the summons in the
pending Magistrate ’s Court p roceedings declared unconstitutional , inva lid, void
and/or e nforceable.
[13] After the institution of the pending High Court proceedings, the applicant
started to make inadequate payments in respect of her accounts for inter alia rates
and taxes . The applicant’s account is substantially in arrears .
[14] On 7 November 20 23, one Frans Elliot Malesela (“Mr Malesela”) , delivered a
final letter of demand in respect of the arrears to the premises at 12h19. It was not
pointed out in the affidavit of Mr Malesela whether he handed it to a person who
appeared to be not less than 16 years old. For reasons which are explained below,
this has an impact on the outcome of this matter.
[15] The applicant alleges that during the week of 19 to 24 February 2024 and
upon her return to the pr emises , she noticed that the electricity supply had been
disconnected. This prompted her to conta ct attorneys and ultimately the urgent
application was launched and enrolled for hearing on 5 March 202 4.
[16] Upon being criticis ed by the respondents in the answering affidavit that the
applicant had not identif ied the specific day that she noticed the electricity supply
had been disconnected , in the replying affidavit she indicated that she had realised
that the electricity was disconnected on 23 February 2024.
[17] According to the applicant :
[13.1] the disconnec tion of the electricity supply is considered a debt
collection measure;
[13.2] section 5 of the first respondent’s Credit Control and Debt Collection
Policy 2023 / 2024 Financial Year (“Credit Control Policy”)
specifically deals with Credit Control measur es and section 5.2
thereof regulates the disconnection of electricity supply after
providing 14 -days’ written notice to the account holder / occupant;
[13.3] there is a dispute pertaining to the account which is currently
pending before this Court and the refore implementing debt collection
measures is prohibited in terms of section 102(2) of the Municipal
Systems Act, 32 of 2000 (“the Municipal Systems Act”) ; and
[13.4] even if the Court finds that there is no pending dispute as envisaged
in section 102(2 ) of the Municipal Systems Act, the respondents still
had to comply with Section 21 of the Standard Electricity Supply By -
Laws published in the Provincial Gazette Extraordinary No. 227 on 7
August 2013 (“the Electricity Supply By-Laws”).
[18] However, of signif icance to the issues to be decided in this matter is that in
the founding affidavit in the pending High Court application dated 6 December 2023 ,
a month after Mr Malesela left the notice at the premises and over two and a half
months before the applicant n oticed that her elec tricity su pply had been
disconnected , the following was stated in paragraph 11 thereof:
“11. The street address of the property is where I reside as stated above.
There is inter alia a residential dwelling on the property which is use d
by my husband and me as our residential dwelling. ”
[19] Although it is common cause that the applicant continues to make mon thly
payments, they appear prima facie to be inad equate. Ms Erasmus, who appeared
for the respondents pointed out that even in the ev ent that there is a dispute between
the parties as envisaged in section 102 of the Municipal Systems Act, the applicant
is still obliged to pay an adequate average amount on her accounts monthly and her
payments made do not meet the requirements as set out in section 5.4 (b) of the
Credit Control By-Laws , quoted below .
[20] As far as the dispute is concerned, I enquired from counsel on behalf of the
applicant how th e pending Magistrate’s Court dispute or pending High Court dispute
related to the amounts referred to in the final letter of demand and he indicated that ,
as there was a dispute regarding the zoning of the property, there was a dispute
about the amounts being charged in respect of the rates and taxes .
[21] However, after considering the founding affidavit i n the pending High Court
application , nothing that was stated in the affidavit challenged the amounts which
were due in respect of the account itself.
C. THE RELEVANT LEGAL PROVISIONS AND AUTHORITIES :
[22] Section 102 of the Municipal Systems Act provides as follows:
“102 Accounts
(1) A municipality may -
(a) consolidate any separat e accounts of persons liable for
payments to the municipality;
(b) credit a payment by such a person against any account of
that person; and
(c) implement any of the debt collection and credit
cont rol 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 the municipality and a person referred to in that
subsection concerning any specific amount claimed by the
muni cipality from that person.
(3) A municipality must provide an owner of a property in its
jurisdiction with copies of accounts sent to the occupier of the
property for municipal services supplied to such a property if
the owner requests such accounts in writing from the
municipality concerned. ”
(Emphasis added)
[23] In Body Corporate Croft dene Mall v Ethekwini Municipalty1 (“Croftdene Mall ”)
the following was stated:
“[20] Section 102(1) of the Systems Act presents no controversy. The
question for determination is whether the respondent was entitled in the
circumstances of this case, to terminate the services to the property in order
to enforce payment o f arrear rates in view of the provisions of s 102(2). The
provisions of this section exclude the application of ss (1), 'where there is a
dispute between the municipality and a person referred to in that subsection
concerning any specific amou nt claimed by the municipality from that
person'. Clause 22 of the policy makes provision for dispute resolution.
Clause 22.1 thereof requires a customer who disputes a municipal account
to submit it in writing to the chief financial officer stating the reasons theref or
and any relevant facts, information or representation which the chief financial
officer should consider to resolve it. But, in terms of clause 22.3, the
submission of a dispute 'shall not stop or defer the continuation of any legal
procedur e already ins tituted for the recovery of arrear payment relating to
such dispute'.
[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 co urt 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 dispute: there must exist two or more parties who are in
controversy with each other in the sense that they are advancing
irreconcilable contentions.
1 2012 (4) SA 169 (SCA) at paras [20] to [23] at 177 E to 178 D.
[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 municipalit y. 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 t he 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 prov isions of the subsection. But the measures could be
implemented in regard to the balanc e 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 raise d.
[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 implemen ted the enforcement measures at its
disposal. ”
(Emphasis added)
[24] Section 115 of the Mun icipal S ystems Act provides as follows:
“115 Service of documents and process
(1) Any notice or other document that is served on a person in
terms of this Act or b y a municipality in terms of any other
legislation is regarded as having been served -
(a) when it has been delivered to that person personally;
(b) when it has been left at that person's place of
residence or business in the Republic with a person
apparently over the age of sixteen years ;
(c) when it has been posted by registered or certified
mail to that person's last known residential or
business address in the Republic and an
acknowledgement of the posting thereof from the
postal service is obta ined;
(d) if that person's address in the Republic is unknown ,
when it has been served on that person's agent or
representative in the Republic in the manner provided by
paragraphs (a), (b) or (c); or
(e) if that person's address and agent or represe ntative
in the Republic is unknown, when it has been posted
in a conspicuous place on the property or premises, if
any, to which it relates .”
(Emphasis added)
[25] In Joseph and Others v City of Johannesburg and Others ,2 the Court stated
the following:
“[61] I agree that affording notice to the applicants would not undermine
City Power's ability to provide an efficient service. Accordingly, City Power
must afford the applicants pre -termination notice. For the notice to be
'adequate' it must contain all relev ant information, including the date and
time of the proposed disconnection, the reason for the proposed
disconnection, and the place at which the affected part ies can challenge the
basis of the proposed disconnection. Moreover, it must afford the applican ts
2 2010 (4) SA 55 (CC) , para [61] at 76 H to 77 A.
sufficient time to make any necessary enquiries and investigations, to seek
legal advice and to organise themselves collectively if they so wish. At a
minimum, it seems to me that 14 days' pre -termination notice is fair, and is
consistent with the prov isions of the credit control bylaws. ”
(Emphasis added)
[26] Section 5 (1) of the Electricity Supply By-Laws states that written notice is
deemed to have been served when it has been served in accordance with the
provisions of the Local Government Municipal Syst ems Act, which written notice
must be authorised by means of a signature of the Engineer of an Official appointed
or nominated by him or her.
[27] Public authorities possess only so much power as is lawfully authorised, and
every administrative act must be jus tified by reference to some lawful authority for
the act.3
[28] If there is no authorisation for the action in some or other recognised way,
the action will be invalid.4
[29] Section 5.4(b) of the Credit Control By-Laws of the first respondent provide
as follows:
“(b) Should any dispute arise as to the amount owing by an owner in
respect of municipal services the owner shall notwithstandin g
such dispute proceed to make regular minimum payments based
on the calculation of the average municipal account for the
proce eding three months prior to the arising of the dispute and taking
into account interest as well as the annual amendments of tariffs of the
Council. ”
3 Baxter: Administrative Law , p 384.
4 Hartzenberg and Othe rs v Nelson Mandela Metropolitan Municipality (Dispatch Administrative
Unit) 2003 (3) SA 633 (SE).
[30] The requirements for the right to claim a final interdict are:5 (i) a clear right;
(ii) an injury actuall y committed or reasonably apprehended; and (iii) the absence of
similar protection by any other ordinary remedy.
[31] Whether or not one has a “ clear right ” is a matter of substantive law.6
[32] The term “ injury ” must be understood to mean infringement of the r ight which
has been established and results in prejudice.7 Prejudice is not synonymous with
damages and it is sufficient to establish potential prejudice.8
[33] The discretion of the Court to refuse a final interdict, provided the
abovementioned three requisite s are present, is very limited9 and depends
exclusively upon the question whether the alternative remedy is adequate.10
B. DISCUSSION OF THE MERITS :
[34] The crux of this matter depends on the determination of two issues, namely:
[34.1] whether there is a “ dispu te” as envisaged in section 102(2) of the
Municipal Systems Act which would preclude the respondents from
implementing debt collection measures; and
[34.2] if there is no “ dispute ” as envisaged in section 102(2) of the
Municipal Systems Act, whether proper notic e was given to the
applicant prior to the disconnection of her electricity on 21 February
2024.
5 Setlogelo v Setlogelo 1914 AD 221 at 227 (“ Setlogelo ”).
6 Minister of Law & Order, Bophuthatswana v Committee of the Church Summit of
Bophuthatswana 1994 (3) SA 89 (BG) at 97 -98.
7 Setlogelo at 221.
8 Capital Estate and General Agencies (Pty) Ltd and others v Holiday Inns Inc and Others 1977
(2) SA 916 (A) at 930-932.
9 Tvl Property and Investment Co Ltd v Reinhold & Co v SA Townships Mining & Financ e
Corporation Limited and the Administrator 1938 TPD 512 at 521.
10 Setlogelo at 221 and 227.
[35] As far as the first question is concerned, there is no i ndication in the pending
litigation that it relates to “specific amounts ” that are due an d payable : The dispute
relates to a zoning issue . I am therefore of the view that there is no “dispute ” as
envisaged in section 10 2(2) of the Municipal S ystems Act which precludes col lection
steps being taken .
[36] The next question which arises is whether proper notice was given prior to
termination . In this regard, it was submitted on behalf of the respondents that there
was no indication in the founding papers or the replying papers that the respondents
were, in fact, residing at the premises and that this Court shoul d therefore accept
that service had been affected in terms of section 115 (1)(e) of the Municipal Systems
Act.
[37] I had difficulty with this argument because attached to the answering affidavit
of the respondents was the founding affidavit in the pending Hig h Court application
and paragr aph 11 thereof which is quoted above expressly stated that the applicant
and her husband reside on the property and it is used as their residential dwelling.
In the circumstances, service of the notice could have been effecte d in terms of
section 115 (1)(b). It was also correctly pointed out by the legal representative of the
applicant, Mr du Plessis , that there was even a different option available to the
respondent as the actual municipal accounts refer to a Post Box address, namely,
Post Box 7 […], Lynnwood Ridge, 0040 and service could therefore also have been
effected in terms of section 115(1)(c) of the Municipal S ystems Act. This was also
not done.
[38] Although it may be so that , at the time the final demand was served by Mr
Masalesa , the respon dents may not have been aware of the fact that the applicant
resided at the p remises, they did know the applicant ’s postal address and could have
served the final demand in terms of section 115 (1)(c) of the Municipal Systems Act .
[39] Also, the respondents were well aware of the applicant ’s residential address
from December 202 3 and should then have effected service in terms of section
115(1)(b) of the Municipal Systems Act.
[40] Service should be effected in terms of sections 115(1)(a), (b) a nd (c) i n
instances where the respondents : (i) know the address of the applicant (section
115(1)(a)) ; or (ii) know th at a specific address is the applicant ’s residentia l address
(section 115(1)(b)) ; or (iii) know the postal address of the appl icant (sectio n
115(1)(c).
[41] As is clear from the wording of section s 115(1)(d) or (e), service c an only be
effected under those sections where : (i) a person ’s address in the Republic (i.e. any
of the addresses referred to in sections 115(1)(a), (b) or (c) ) are “unknown ” to the
respondents ; and (ii) if that person ’s address and agent or representative in the
Republic is “unknown ”. That is not the case in this instance.
[42] In argument, I was advised that there was no need to serve more than one
notice in accordance with the legislation. Although I agree that the legislation does
not refer to the need to serve a notice more than once, one cannot ignore the fact
that: (i) service in terms of section 115(1) (c) was possible in November 2023 ; and (ii)
a month later – on 6 Decembe r 2023 – long before the termination date in the latter
part of February 2004 , the res pondent was made aware that the applicant and her
husband reside at the premises . From that date, service of the notice in terms of
section 115(1)(b) was also possi ble.
[43] The service in te rms of section 115(1) (e) was not sufficient having regard to
the facts of this case.
[44] In the circumstances, I am of the view that there was no proper service of
the final demand and this renders the t ermination of the applicant ’s electri city supply
unlawful.
[45] I am also of the view that the requirements for final interdictory relief have
been met.
[46] As far as the issue of costs was concerned, Ms Erasmus argued that it is the
constitutional obligation of the first respondent to collect outstan ding monies due to
it. Although I agree with this, it has to do so within the parameters of the law and
cannot merely, despite knowing of the factual position of the applicant, proceed
without given proper notice under section 115 before disconnecting the electricity
supply to a n applicant ’s residential premises .
[47] I see no reason why the costs should not follow the re sult.
ORDER
In the circumstances, I make the following order:
1. The rule nisi is confirmed, save for paragraph 3.2 thereof; and
2. The respon dents are d irected to pay the a pplicant ’s costs , incl uding the
reserved costs of the hearing s on 5 March 2024, 16 May 2024, 10 July 2024,
28 Au gust 2024 and 24 Oc tober 2024 , on party and party scale B.
_________________________
LG KILMARTIN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Dates of hearing: 20 March 2025
Date of judgment: 8 April 2025
For the applicant : NJ du Plessis
Instructed by attorneys for applicant : NJ du Plessis & Associates Inc.
For the respondents : N Erasmus
Instructed by attorneys for applicant : Marivate Attorneys