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in compliance with the law and SAFLII Policy

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

Case Number: 2025 – 050470






In the matter between:
NEW MODEL PRIVATE COLLEGE CC Applicant
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY First Respondent

CITY POWER ( SOC) LIMITED Second Respondent


JUDGMENT
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: NO

25 April 2025
DATE SIGNATURE

2

Noko, J .

Introduction [1] The applicant instituted an urgent application for an order directing the
respondents to immediately restore electricity supply to the applicant’s property
situated at […] S[…] Street, D[…], Johannesbur g, (Erf 1[…], D[…] Township)
(“property”) . The first respondent is opposing the application and second
respondent has delivered a notice to abi de with the order of court . Reference to
respondent in this lis will refer to the first respondent.

The parties
[2] The applicant is New Model Privat e College NPC, a non- profit company,
duly incorporated in terms of the laws of the Republic of South Africa with its business address at [ …] S[…] Street, D […], Johannesburg.

[3] The first respondent is City of Johannesburg Metropolitan Municipality duly
established in terms of the L ocal Government: Municipal Structures Act
1 carrying
its business at 61 Jorissen street, Johannesburg.

[4] The second respondent is City Power ( SOC) Ltd, a state owned company
incorporated in terms of the laws of the Republic of South Africa, with its address
situated at 4[…] H[…] Road, R […], Johannesburg.

[5] The applicant has incorrectly identified the second respondent as a private
company and I guess this should have been an error.

1 Local Government: Structures Act 117 of 1998.

3

Background.

[6] The following background is common cause between the parties. The
respondent supplies services to the applicant which includes provision of
electricity.2 The applicant is the registered owner of the property and has let it to
a school known as Key to Succees School.3

[7] The respondent terminated supply of electricity to the applicant ’s premises
on 27 March 2025 as a result of applicant’s failure to pay for the charges relating
electricity, water & sanitation and property rates . The total amount due is
R2 710 567.66 (Two Million Seven Hundred, Ten Thousand Five Hundred and
Sixty Seven rand and Sixty six cents.

[8] The applicant then launched these proceedings to interdict the respondent
to reinstate the supply of electricity.

Parties ’ version and submissions .
Urgency

[9] The applicant contends that the termination was effected on Thursday, 27
March 2025 and immediately thereafter the applicant ’s board of directors
convened a meeti ng where a resolution was taken to laun ch these urgent
application. The applicant appointed a firm of attorneys and consulted w ith
counsel in the following week and subseque ntly issued the application on 10 April
2025. In the circumstances the applicant submit s that the application could not
have been enrolled earlier and the aforegoing is a comprehensive account of

2 The account number allocated to the applicant by the Respondent is 550509049.
3 The lease arrangement is not known by the respondent but not in dispute.

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what transpired before the papers were launched. In addition, applicant argues, if
the normal court process is followed no substantial redress will be attained.

[10] The respondent on the other hand contends that the applicant took a
laissez faire posture and failed to attend to the matter with the requisite urgency.
In addition, there is a confusion in how the applicant accounted for the activities
since the supply of electricity was terminated. The applicant ’s papers state that
the termination was on 25 March 2025 and in another instance states that it was terminated on 26 March 2025. There is an indication that the board took a
resolution on 27 March 2025. According to the respondent the applicant waited
for 16 days before the application could be heard. In view of the confusion the court is therefore not properly appraised as to what transpired and should find
that there is no urgency alternatively that urgency was self -created.
[11] The counsel for the applicant contends, in reply, that there is an error with
regard to the date on which the termination took place and the c ourt should get a
cue from reference to Thursday as the correct day on which the supply of the
electricity was terminated by the respondent.
[12] It is noted, the applicant’s counsel continued, that maybe t he application
could have been enrolled on the second week of the April 2025, but having regard to the circumstances of this case, the fact that there are children indirectly
affected and the unlawful termination i n continuing, the court should not over
emphasise the dates and conclude that the delay is inordinate. In any event the
respondent confirms that the termination took place on Thursday, 27 March 2025.
[13] I had regard to the submissions by both parties and find that the
application satisfies the requirements for urgency and deserves the attention of the urgent court .


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Merits

[14] The applicant contended that there are children who are attending school
and their rights are being infringed by the termination of the supply of the electricity which was not preceded by serving a pre- termination notice in
accordance with judgment of the Constitutional Court in Joseph
4. In terms of the
said judgment the respondent would be required to serve all the parties whose rights would be affected by the termination of the supply of the electricity. The applicant’s counsel impressed on the court that since the High Court is the upper guardian of the children it should direct the respondent to reinstate the electricity
supply as the children ’s rights are negatively affected by the unlawful termination
of the supply of the electricity .
[15] The second contention advance d by the applicant is that ordinarily the
respondent is not entitled to implement debt collection process where there is a
dispute which has been declared in relation to the amounts charged by the
respondent. To this end there is a lis which is pending in this C ourt with regard to
the disputed billing and as such the terminat ion of the supply of electricity is
unlawful and should be set aside. The applicant stated further that the applicant
has demonstrated its own bona fides and has been making payments , though
under protest , and this assertion has not been disputed by the respondent in its
answering affidavit.
[16] Lastly, the applicant contended that the evidence presented satisf ies the
requirements for mandament van spolie as there was possession and same was
terminated by the respondent unlawfully.


4 Joseph and Others v City of Johannesburg and Others [2009] ZACC 30.

6
[17] The respondent on the other hand contended that on proper reading of the
Joseph’s judgment it would be sufficient if the respondent can demonstrate that
the pre- termination notice was delivered at the property and not necessarily on
each and every child at the school. The pre -termination notice was delivered to
the secretary at the school who acknowledged receipt and replied that to her
understanding there should not be termination as there is a pending legal matter.
The respondent’s counsel contended furth er that the Joseph ’s judgment is
distinguishable as the parties in that case were paying customers whereas in this
case the school is not paying any monies to the respondent.
[18] The counsel for the respondent argued that the pending litigation referred
to by the applicant ’s counsel relates to the dispute that the applicant i s being
billed for the electricity on the minimum demand tariff basis whereas in fact it is
on a business tariff. As such the argument underpinning the submission that there is a cogent dispute is unsustainable. However, the counsel conceded that
this argument relates to an issue which is pending in before another court and I
cannot not make any pronounce ment on the merits of that dispute.

[19] Counsel for the respondent f urther s tated that the dispute pending
elsewhere relates only to the charges for the electricity whereas the amount
which appears in the pre- termination notice includes the charges for other
services. In response to my view that the pre-termination notice is not correct as
it also relates to the disputed the amount, he persisted that the bulk of the
amount appearing in the notice is not for the electricity and to this end the court
should overlook charges for other services and consider the notice to be valid. In
any event , the respondent argues , it may be unreasonable to expect this Court to
consider what the notice generally entail s and to further interrogate the certificate
of balance including having to look into at the meter readings. To this end, he
argued, the court should only consider whether there is a notice or not and not
the contents of the notice. I must mention that this argument is untenable.


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[20] During the discussion with the court the counsel for the applicant
acknowledged that indeed there is an amount which is due and payable for
services apart from the electricity charges and the respondent would ordinarily be
entitled to terminate for that amount . The respondent on the other hand ,
accepted that the right to terminate should not include the amount due for the
electricity charge which is included in the pre- termination notice. To this end the
parties were amenable to an order in terms of which the applicant be granted a grace period to settle the correct ed amount which exclude the amount due for
electricity charge. In the meantime, the respondent should reinstate the supply of
electricity and if no settlement is made then termination would be reinstated.
[21] The parties further agreed that settlement of the outstanding charges
would have to be in accordance with the polices of the respondent . The
respondent’s policy provides that if the applicant wishes to pay the arrears over
a period of time such a rrangement would have to be preceded by payment of
30% or 50% of the arrear amount and the balance to be payable over a period of
time.

Legal principles and analysis.

[22] The counsel for the applicant contended that on proper reading of
Joseph’s judgment the respondent is required to serve each child at the school.
Reference was made of p aragraph 75 of the judgment where Skweyiya J stated
that “… that pre -termination notice must be send to all persons whose rights may
be materially and adversely affected by the terminati on of a municipal services.”
As was alluded to by the respondent it would be overly extreme to interpret this
paragraph i n such a way that each child should be served with a pre- termination
notice. The interpretation by the respondent is sustaina ble having regard to the
fact that in Joseph the court considered service of a notice to the owner of the
property and excluded the tenants or occupiers of the property. In this instance

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service was also effected at the tenant ( school ) and this was sufficient notice to
the community of the school.

[23] The provisions of Section 102 ( 2) of the Local Government: Municipal
System Act5 need not be discussed in detail except to state that it is axiomatic
that the respondent cannot implement debt collection measures in respect of
amount due for which a dispute has been raised by the customer.
[24] There was a reference by the applicant of the common law remedy of
spoliation and referred to the Constitutional Court in Ngqukumba
6 where it was
stated that the respondent would have to “ ... restore before all else of unlawfully
deprived possession to the possessor. ” The contention that the applicant would
fail in its application as it does not satisfy the requirement s for mandament van

5 Section 102 (2) of the Municipal Systems Act provides that collection measures cannot be
invoked where there is a dispute between the parties regarding the quantum of the bill. In 3[…]
V[…] D[…] M[…] Street H[…] CC v City of Johannesburg Metropolitan Municipality and Another
(2023- 069078)[2023] ZAGPJHC 963 (25 August 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:
1.1 “there must be a dispute, in the sense of a consumer, on the one hand, and the
municipality, on the other, advancing irreconcilable contentions;
1.2 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;
1.3 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;
1.4 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;
1.5 it must be apparent from the founding affidavit that the foregoing requirements have been
satisfied.”
6 Ngqukumba v Minister of Safety and Security and Others [2014] ZACC 14 .

9
spolie appears to be misplaced. Whilst it is correct that one may not claim
restoration of the electricity supply if such supply is not incidental to the
possession7 the applicant’s relief sought would not have been successful had it
been exclusively predicated on the common law remedy of mandament van spolie.
Conclusion .
[25] In view of the stance adopted by both parties that the pre- termination
notice is partly correct and that it should be rectified and the respondent be allowed to pay or enter into an arrangement predicated on the respondent’s policy over a certain period of time, it is not required of me to make any
pronouncement on the legal issues raised save what I have outl ined above.
Costs
[26] It is trite that the question of costs is within the discretionary enclave of the
court which should be exercised judicially. Having regard to the conclusion
reached subsequent to the court engagement it is not warranted that one of the
parties should be made to pay the costs of the other party.
Order
[27] In the p remises I make the following order:
1. The Applicant’s non- compliance w ith the rules and /or practice
directives relating to service a nd time periods is condoned and the

7 Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA), Simons v The City of
Johannesburg Forensic DPT 2019 JDR 2664.

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application is allowed to be heard in accordan ce with Rule 6(12) of the
Uniform Rules of Court.

2. The Respondent is ordered to deduct the charges for the electricity
consumption from the pre -termination notice and afford the applicant a
period of 14 days thereafter to pay or make arrangement payment of the
remaining amount due in accordance with the Respondent’s By -Laws and
or policies .
3. The Respondent is ordered to reinstate the supply of electricity
immediately and terminate the supply if the applicant fails to pay or make
arrangement for payment as envisaged in 2 above.
4. No order as to costs.

M V NOKO
Judge of the High Court,
Gauteng Division, Johannesburg.
This judgement was prepared and authored by Noko J and is handed down electronically by circulation to the p arties / their legal representatives by email
and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 2 5 April 2025.

Date s:
Hearing: 17 April 2025
Judgment: 25 April 2025

Appearances
For the Applicant : D Lebethe.
Instructed by : Ditheko Lebethe Attorneys

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For the First Respondent : QM Dzimba .
Instructed by :