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[2] The applicant brought proceedings by way of urgency, seeking interim relief of
the reconnection of her electricity supply which was disconne cted on the 19
February 2024.
[3] Following the hearing of submissions regarding the interim relief, the court on 29
February 2024, granted the following:
“3.1 that the Respondents be and are hereby directed to reconnect / unblock /
unrestrict the electricity supply to the premises within 4 (four) hours after
services of the court order at the office of the Second Respondent, by the
Applicant’s attor ney.”
“5. The Applicant is directed to con tinue making payments of her current service
fees as appearing on the statement account.”
[4] On the 7 February 2025, the respondents submitted a supplemen tary affidavit
which stated that th is application has become moot because the applicant had
concluded an Instalment Plan Agreement where she agreed to the tampering
charges and paying the area rs amount inclusive of the tampering charges on a
monthly basis.
[5] On attendance at court on the 10 February 2025 , the applicants raised the issue
that they had not had time to respond to the respondents supplement ary affidavit ,
It was agreed that the matter would stand down and be heard on the 13 February
2025 to afford the applicant the opportunity to respond to the respondents
supplementary affidavit.
Issues
[6] The issues to be determined in this matter are as follows:
6.1 Whether by signing the Instalment Plan Agreement on th e 10 December
2024 this application has become moot.
6.2 Whether the respondents conduct in disconnecting the electricity was
lawful.
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6.3 Whether the applicant has made out a case for the granting of the final
relief and whether the respondent s have shown cause why the interim
order should not be made final.
Background
[7] On the 19 February 2024, the respondents restricted electri city supply to the
premises of the a pplicant, who is the owner of the property.
[8] At the time when the applicant instituted the urgent proceedings, the applicant
was still not informed of the reason for the restriction of the electricity supply other
than the presumption that it might be for ar rear amounts.
[9] The applicant discovered in the respondents Answering Affidavit that the reason
for the restriction of her electricity supply was that the respondents alleged
tampering of the electricity supply unit .
Legislative Framework
[10] The Respondents proceed ed to oppose this application, and they aver red that
the applicant tampered with the electricity supply unit. By virtue, hereof, the
respondents rely on section 261 of the Electricity By -Law, which states as follow:
“TAMPERING AND OTHER OFFENCES IN RESPECT OF SERVICE CON NECTION,
METERING EQUIPMENT OR SUPPLY MAINS
(1) No consumer, owner, occupier or registered owner of any premises or immovable
property or any other person may in any manner or for any reason whatsoever
bypa ss the meter and/or related metering equipment of the Municipality or of a
contractor on or relating to an y premises, or otherwise tamper or interfere with,
remove, redirect, disturb, alter, vandalise or ste al any meter or other metering
equipment, or any service connection, service protective device, protective box or
case, the supply of mains or any other electricity supply or metering assets,
equipment and/or infrastructure forming part of the Munici pality’s electricity supply,
distribution and reticulation network and/or an y prepayment meter system, smart
prepayment meter system, whether owned or operated by the Municipality or a
1 Electricity Supply By -Law published in the Provi ncial Gazette Extraordinary 227 on 7 August
2013 (‘the By -Laws” ).
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contractor and whether or not it is locate d or installed on, or affixed to any premises
or is located or installed elsewhere in relation to any prem ises. Such tampering,
interference, removal, redirection, by -passing, vandalism and the ft shall constitute
an offence in terms of these by -laws.
(2) Where prima facie evidence of tampering, interference or by -passing referred to in
subsection 1 exists, the Municipality has the right to disconnect the supply of
electricity immediately without prior notice to the consumer. The consumer is liable
for all fees and charges levied by the Municipality for the disconnect ion and
subsequent reconnection in accordance with the approved tariffs. (Emphasis my
own) .
Mootness of the application
[11] The respondents aver red that this application has become moot because the
applicant has concluded an Instalment Plan Agreement on 10 December 2024,
where she admitted to the tampering, and agreed to paying the arrear amount
inclusive of the tampering charges on a monthly ba sis.
[12] The 10 December 2024, Instalment Plan Agreem ent filed on record by the
respondents regard ing the payment of the tampering charges refers to the
acknowledgment of payment by the applicant of the tampering charges for 6
December 2023 and no t the 9 February 2024 tampering charge.
[13] On the 6 December 2023 due to alleged tampering the applicant’s electricity
suppl y was disconnected. The applicant denies this tampering, and th is was
supported by the evidence of the respondents.
[14] The respondents have submitted as part of their e vidence an electricity
inspection card for an inspection which took pla ce on 6 December 2023, the
inspection card indicate d that there has been no tampering.
[15] On the 16 December 2023 the applicant submitted that she attended the office
of the respondent and entered into an arrangement and acknowledged her
indebtedness to the respondents before her electricity supply was restored . She
at that time never admitted to the 6 December 2023 tampering.
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[16] On the 19 February 2024, the applicant’s electricity supply was disconnected
despite the applicant’s 1 6 December 2023 acknowledgement of debt
arrangement.
[17] Howev er, the 19 February 2024 electricity restriction was due to the respondents
alleging a tampering incident , which would be a “second alleged tampering” of
the electricity meter by the applicant.
[18] The applicant submitted that prior to the 10 December 2024, her electricity suppl y
was once again restricted by the Respondents on either faulty equipment or the
restriction of services.
[19] On the 10 December 2024, the respondents discovered that the applicant’s
meter was indeed faulty, and the applicant purchased a new meter which was
installed on the premises.
[20] It is submitted by the applicant that the respondents refused to assist her with
the installation of a new meter and purchase of electricity, up until the time she
signed acknowledgement of debt forms. These forms also included an
acknowledgement of the 6 December 2023 tampering. The appl icant submitted
that she had no choice but to sign the forms because she did not want to be
without electricity during the December festive season.
[21] The mat ter before this court deals with the 19 February 2024 tampering and not
the 6 December 2023 tampering . It is noted that the applicant has signed a for m
admitting to the 6 December 2023 tampering and the payment of tampering
charges despite the fact that the respondents in this mat ter ha ve provided
evidence of a 6 December 2023 electricity inspection form which reflects that
there was no tamp ering.
[22] This application is not moot because the Instalment Plan A greement signed by
the applicant on 10 December 2024 does not deal with the 19 February 2024
tampering allegation .
Respondents conduct in disconnecting the e lectricity
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[23] The respondents contend ed that their actions were lawful in disconnecting the
electricity supply to the applicant in terms of section 26(2) of the Electricity By -
Laws , in terms of which, the applicant does not have a right to receive notice
once prima facie evidence of tampering has been established .
[24] I now turn my attention to whether there was prima facie evidence of tampering
on the 19 February 2024.
[25] It is submitted by the respondents that on 19 February 2024, the respondents'
officials conducted an inspection at the applicant’s property and found prima
facie evidence of tampering of the meter ; they took pictures and pro ceeded to
disconnect the electricity supply.
[26] The ap plicant’s counsel conten ded that there exists no prima facie evidence that
the applicant tampered with the electricity supply. It was submitted by the
applicant, that she sought the expertise of an independent electrician to inspect
the electricity meter. The applicant has provided the independent electrician ’s
photographic evidence together with explanatory notes, indicating that the
electricity meter was not tampered with. The inde pendent electrician in his
confirmatory affidavit regarding the meter has stated that t he “crimped lock of the
meter is still in place and that there is no way one can remove the cover and
interfere with the cabling without removing the crimped lock ”; based on this
evidence the independent electrician has concluded that there has been no
tampering with the electricity meter.
[27] The respondents have filed on record one photograph of the alleged tampering.
The photographic evidence provided by the respondents do not have a time
stamp indicating when the photograph w as taken and by whom . There are no
confirmatory affidavits filed on record by the respondents' officials who took the
photograph and who inspected the meter of the applicant. There is also no job
card and no electricity inspection letter providing the details of the alleged
tampering on the 19 February 2024. However, t he respondents have provided a
job card for the alleged tampered connection of the 6 December 2023. They
submit ted that photographs were also taken of the alleged 6 December 2023
tampering, however, those photographs have not been filed on record.
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[28] Furthermore, the respondents have not refuted the claims or produced a report
from any experts to the contrary of the applicant's independent electrician who
has submitted that there has been no tampering.
[29] The evidentiary burden of proving tampering in accordance with section 26 of the
By-Laws rests on the respondents. In the case of Gericke v Sack2 the court in
dealing with what would amount to a prima facie case in instances where the
facts were within the peculiar or intimate knowledge of the other party held:
“It is not a principle of our law that the onus of proof of a fact lies on the party who has
peculiar or intimate knowledge or means of knowledge of that fact . The incidence of the
burden of proof cannot be altered merely because the facts happen to be within the
knowledge of the other party. See Rex v Cohen 1933 T.P.D. 128. However, the Courts
take cogni zance of the handicap under which a litigant may labour where facts are within
the exclusive knowledge of his opponent and they have in consequence he ld, as was
pointed out by Innes J. In Union Government (Minister of Railways) v Sykes 1913 A.D
156 at p. 173 that ‘less evidence will suffice to establish a prima facie case where the
matter is peculiarly within the knowledge of the opposite party than would under other
circumstances be required.’ But the fact that less evidence may suffice does not alter
the onus which rests on t he respondent in this case .”
[30] In this matter, the respondents are the only ones who can attest to how the
tampering was determined. As such, I am in agreement with the applicant’s
counsel that the respondents have not satisfied th e burden to prove that the
applicant has tampered with her electricity meter.
Conclusion
[31] In the premises, taking into account the evidence I conclude that there has been
no prima facie evidence produced to confirm tampering of the electricity supply
unit by the applicant and therefore it follows that the disconnection of the
electricity supply by the respondents was unlawful. The applicant’s application
succeeds, and the rule nisi granted on 29 February 2024 must be confirmed with
costs.
2 1978 (1) SA 821 (A) p ages 13 and 14.
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For the Respondent: ADVOCATE B LUKHELE instructed by JL RAPHIRI
ATTORNEYS
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