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 DIVISION, JOHANNESBURG .
Case Number: 028035 -2025
In the matter between:
In the matter between:
LINRAW CC Applicant
And
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY First Respondent
CITY POWER JOHANNESBURG (SOC) LTD Second respondent
JUDGMENT
NOKO J
Introduction (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
SIGNATURE DATE: 20 March 2025
2
[1] The applicant instituted an urgent application against the respondent s for
interim relief pending the adjudication of the lis (main application) between the
parties under case 2024- 079123. The applicant seeks the following orders:
restoration of the supply of electricity to the applicant’s property, interdict the respondent from terminating the supply of electricity to the applicant’s property against a tender by the applicant to make payment of the amount of R10 000.00 for
electricity charges and finally an interdict against the respondent from serving on the
applicant an electricity Disconnection Card or any other notice of its intention to terminate the supply of electricity to the applicant’s property. The applicant seeks an interim order pending a final determination of the main application.
[2] The respondent is opposing the application and is, inter alia , disputing that
that the application is urgent and also raised two points in limine of lis pendens and
res judicata .
Background
[3] The applicant obtained an interim order on 6 May 2019 under case number
0773/2019, inter alia, interdict ing the respondent s from terminating the supply of the
electricity to it s business premises situated at Lincoln Centre, 5[ …] C[…] Drive,
B[…], Johannesburg (the property) . The said order was granted pursuant to an
agreement entered into between the parties in a lis which was launched after to the
termination of the electricity supply by the respondents. The agreement included an
undertaking that the applicant would pay the amount of R10 000.00 per month for
the consumption of the electricity . Notwithstanding that the order is still extant the
respondent s have intermittently terminated the supply of electricity without
challenging the said order .
Submissions by the parties.
[4] The applicant submitted that since the order was issued in 2019 there were
two other orders which were granted against the respondent s issued in this Division .
3
This Court is the fourth Court to be seized with a suit in terms of which the applicant
seeks orders to interdict the respondent to reconnect the supply of electricity and to
be interdicted from terminating the supply of electricity to the applicant’s property. To
this end, so it was argued, the court i s enjoined to relay its displeasure towards an
egregious and intransigent conduct of the respondent s.
[5] The applicant submitted further that notwithstanding the previous orders the
respondent has flagrantly and contemptuously terminated the supply of the electricity. In April 2024 the respondents terminated the supply of electricity to the
premises and in response the applicant instituted an application to reinstate the
electricity supply under case number 2024- 079123. The said application
1 is pending
and is set down for hearing in September 2025 on the opposed motion roll.
[6] The applicant averred that it is in the property rental business and the
property referred to herein consists of premises leased out to third parties . Some of
the premises have been without tenants due to lack of electricity supply and some of the tenants who are in occupation have arranged to pay lower rentals as they are using their own generators . Other tenants have threa tened not to renew the lease
agreements if the supply of the electricity is not re stored . The applicant has recently
been approached by prospective tenants who are ready to enter into lease
agreement provided there is a supply of electricity. The applicant has been informed
that th ose offers to lease will be open until 17 March 2025. Confirmation to this effect
in the form of correspondence attached to the founding papers .
[7] In view of the obligation for the applicant to mitigate the damages the
applicant found it prudent to approach court on an urgent basis for the interdict to
restore the supply of the electricity.
[8] The applicant contends that for the purposes of the requirements for an
interim interdict it has rights alternatively prima facie right to pray for an interim
interdict which flows from the interdict obtained in 2019. In addition, that for as long
1 The pending application(s) include the relief for contempt of court and damages suffered (and
continue to suffer) because of termination which damages are escalating on monthly basis .
4
as the electricity supply is terminated the applicant business interests remain
prejudiced as the premises without electricity are less attractive to the prospective
tenants . The balance of convenience favour the applicant who has a duty to mitigate
damages and no prejudice would visit the respondent. There is also no alternative
remedy , so argument continued, besides having to wait for period of seven month to
get into court. The applicant is losing on condi tional lease offers being made which
were on condition that t he supply of electricity is restored and also that other tenants
have threatened not renew lease agreements when they fall due.
[9] The applicant submitted further that the answ ering affidavit deposed to by the
legal advisor, Mr Boola of the respondent appears to be based on hearsay since the
said deponent does not have personal knowledge of what is set out in the affidavit.
The matter should therefore proceed on the basis that it is unopposed. There is
furthermore no authority or resolution authorising Mr Boola to depose to the
answering affidavit in this matter. Reference was made of the judgment in Millu2 that
the deponent under these circ umstances cannot allege that he has personal
knowledge of the facts relating to the di spute between the parties.
[10] On the other hand, the respondents contend the issues raised by the
applicant are implicated by the point in limine of res judicata as the C ourt made final
decision thereabout and the applicant having said it had obtained three orders to
date. Furthermore, the respondents further raised a point in limine of lis pendens the
issue s raised in this lis are subject of the pending main application . The respondents
further deny that the urgency has been demonstrated and more importantly that the
applicant has failed to attach confirmatory affidavits of the alleged prospective
tenants or even those who made threats not to renew the lease agreements . The
application is therefore predicated on inadmissible hearsay evidence and should be
struck off the roll .
[11] In addition, the respondents deny that the requirements for interim interdict
have been met.
2 Millu v City of Johannesburg Metropolitan Municipality and Another (25039/2021)[2024] ZAGPJHC
420 (29 April 2024).
5
[12] The respondent s further contend that the termination of the supply of the
electricity was as a result of the applicant’s failure to pay for the electricity
consumption. Further that the fact that the respondent has also failed to annex the
alleged proof of monthly payment s of R10 000.00 lend credence to the conclusion
that there are no payments made. Importantly the respondent denies that there was
any interdict that was granted in favour of the applicant as against the respondent
and to this end the respondent denies that they are defying any of the order of court.
The basis of this stance is set out in the main application.
[13] In reply the applicant contends that the point in limine of lis pendens is not
implicated as the remedy sought in the other applications were sought against other respondent s cited together with the current respondents . As such the requirement for
this point in limine that the lis should be for the same relief and between the same parties is not satisfied. With regard to the second point in limine of res judicata, same
should not be upheld as the relief sought i s linked to the recent incidents where
some tenants threatened not to renew the lease and also having been given an
ultimatum to ensure that the supply of electricity is restored failing which offer to
lease its premises will be withdrawn. No other court was ever seized with these
latest developments and the point in limine has no basis in logic or law.
[14] With regard to the contention that the application is lacking in urgency the
applicant states that the basis of urgency is the offer s of lease agreement which
were made in February 2025 together with the threat that the tenants would not
renew the lease if no electricity supply is restored . Counsel for the applicant
submitted that the Court should accept these assertions as true facts stated by the
applicant . in addition, that absence of confirmatory affidavit s do not apply a fatal blow
to the application. In any event , argument continued, hearsay evidence is acceptable
in an urgent court.
Urgency
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[15] The locus classicus on urgent application is East Rock Trading3 where the
Court held that a party must succinctly set out the basis for urgency as the process
set out in rule 6(12) (a) of the Uniform Rules of Court i s not just there for asking.
Further tha t a party should set forth circum stances which renders the application
urgent and most importantly the reasons why the applicant cannot be afforded
substantial redress at a hearing in due course. In compliance herewith the applicant
is enjoined to set out facts in the founding papers stating the basis for urgency. Such
facts should also be supported by evidence being presented for Court’s
consideration.
[16] The regulatory framework regarding hearsay evidence and its admissibility is
set out in the Laws of Evidence Amendment Act
4 (“Law of Evidence Act”). The
relevant sections are dealt with below:
[17] According to section 3(4) of the Law of Evidence Act, hearsay evidence is
“evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.”
[18] Section 3(1) of the Law of Evidence Act provides that:
Subject to the provisions of any other law, Hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings, unless -
(a) Each party against whom the evidence is to be adduced agrees to the
admission there of as evidence at such proceedings;
(b) The person upon whose credibility the property value of such evidence
depends, himself testify at such proceedings;
[19] In casu , it is axiomatic that the probative value of the evidence regarding the
offer to lease from the applicant and threats by those who will not renew the lease agreement depend on the said prospective and current tenants. The said tenants
have not signed confirmatory affidavits . The respondent s’ counsel has categorically
stated that the applicant’s counsel wish to supplement its papers and add the
3 East Rock Trading 7 Pty Ltd and Others v Eagle Valley Granite and Others (11/33767)[2011]
ZAGPJHC 196 (23 September 2011) .
4 Laws of Evidence Amendment Act, 45 of 1988
7
confirmatory affid avits would be opposed. Their evidence is therefore hearsay and
fall foul of the provisions of section 3 (1) of the Evidence Act and is , subject to
section 3(1)(c) , not admissible.
[20] Section 3(1)(c) of the Law of Evidence A mendment Act 45 of 1988 provides
that hearsay evidence may be admitted if the court -
“having regard to –
(i) the nature of proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(v) any prejudice to a party which the admission of such evidence might
entail; and
(vi) any other factor which should, in the opinion of the court, be taken into
account is of the opinion that such evidence should be admitted in the
interests of justice. ”
[21] It was sta ted in Eastern Cape Development C orporation
5 that
“I acknowledge that hearsay evidence is more in urgent matters, but this does
not mean that the requirements of the Evidence Act may be bypassed. It
merely means that a court, having regard to exigencies on the urgent roll , will
approach the admission of hearsay with some degree of latitude, if in
appropriate circumstances, i t is properly advanced and motivated. Differently
put, a proper motivation must be set out in an affidavit by the party relying on
the hearsay matter having regard to the requirements of Section 3(1) of the
Evidence Act. ”6
5 Eastern Cape Development corporation v Occupiers of Erf 117 and Erf 110 Umtata, Windsor Hostel,
36 Sutherland Street, Mthatha and Others (3333/2023) [2023] ZAECMKHC (30 January 2024)
6 Id Para 31.
8
[22] The Constitutional Court in Kapa7 held that the ‘factors listed in section 3(1)(c)
must be viewed holistically and weighed collectively in determining whether it is in
the interests of justice to admit the hearsay evidence'. 8
[23] The applicant denied this C ourt the opportunity to assess whether the hearsay
evidence proffered can be accepted in accordance with the provisions of section 3(1)(c) as the applicant failed to set out in the founding papers why the said hearsay
evidence should be accepted. Without such averments then cadit questio.
[24] In the premises the af oregoing present an insurmountable hurdle which has
besieged the applicant’s case and I therefor conclude that without admissible
evidence of the tenants the foundation upon which urgency is predicated and as such the application is bound to fail. The question of urgency is dispositive of this
application and other issues raised by the parties would not detain this C ourt further .
In passing
[25] I must mention that the fact that the respondent s have been ordered by this
Court on several occasions not to terminate the supply of electricity but ignored the
orders deserves of a harsher admonition by the C ourt despite their intention relayed
to Court to challenge the orders .
9 Worse being the denial before C ourt by the
counsel for the respondents that there is no interdict issued against the
respondents . It is also clear not clear why the applicant approached the court for a
contempt of court on normal basis which is pending elsewhere. Ordinarily that
contempt order in an urgent court would have arrested continuous disregard of the
orders by the respondents . This would have avoided the applicants inviting several
courts to adjudicate over the same issue whilst being aware that the respondents would not comply with the orders.
7 Kapa v S [2023] ZACC 1; 2023 (4) BCLR 370 (CC) .
8 Id at para 77.
9 It was held in Munic ipal Manager OR Tambo District Municipality and Another v Ndabeni [2022]
ZACC that a court order is binding until it is set aside by a competent court, and that this necessitates
compliance, regardless of whether the party against whom the order is granted believes it to be a
nullity or not. Importantly, h owever, the court confirmed that where an organ of state genuinely
believes that an order of course is a nullity , then it is a duty in the public interest to pursue an appeal
to correct illegality.
9
Costs
[26] The determination of legal costs are ordinarily within the discretion of the court
which must be exercised judicially having regard to the relevant factors. It was held in Affordable Medicines Trust and Others
10 that “[T]he award of costs is s matter
which is within the discret ion of the Court considering the issue of costs. It is a
discretion that must be exercised judicially having regard to all relevant considerations.”
11 It is also trite that the costs follow the result and, in this instance,
no persuasive argument was mounted warranting deviation from the well -trodden
path.
Order
[27] In the premises I order as follows:
The application is struck off the roll with costs .
M V NOKO
Judge of the High Court
Gauteng Division, Johannesburg.
DISCLAMER: This judgment was prepared and authored by Judge Noko and is
handed down electronically by circulation to the Parties /their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date for hand- down is deemed to be 20 March 2025 .
Date s:
Hearing: 11 March 2025.
Judgment: 20 March 2025
10 Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) .
11 Id para 138.
10
Appearances:
For the Applicant : RG Cohen.
Instructed by Glynis Cohen Attorn eys
For the Respondents : MR Bvu mbo
Instructed by Magagula Attorneys