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
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No : 24562/2024

In the matter between:

ALLEN TARGHI TAVAKOLI First Applicant

DLX PROPERTIES (PTY) LTD Second Applicant

and

CITY OF CAPE TOWN Respondent


JUDGMENT


SIPUNZI AJ

Introduction

[1] This is an urgent application for mandament van spolie . The applicants seek
an order directing the respondent to restore the water supply connection to two
immovable properties, situated at 6 […] and 7 […] Kloof Road, Cape Town. On 15
November 2024, the m atter served before this Court for the first time. However, the
application did not proceed. It was resolved that the respondent would re store the
water supply to the properties pending the final determination of the matter. During
subsequent appearances, the parties agreed on a timetable that regulated the further
conduct of the matter. The costs were reserved for later determination.

[2] The applicants s eek relief as outlined in the notice of motion, and in the
following terms:

1) Condoning the applicants’ non-compliance with , and dispensing with the
forms, time periods , and service provided for in the Uniform Rules of Court
and disposing of this application as one of urgency in accordance with the
provisions of Rule 6(12) at the time and in the manner set o ut below:

2) Ordering the respondents to restore the supply of water to Erf 1 […], Cape
Town, also known as 7 […] K[…] Road, Fresnaye, Cape Town, and to Erf
1[…]2, Cape Town, also kno wn as 6 […] K[…] Road, Fresnaye ( herein
collectively referred to as “the properties ”).

3) Ordering the Respondent to pay the costs of this application; and

4) Further or alternative relief.

[3] This application is opposed on the basis that the respondent contended that it
was justified when it restricted and or disconnected the supply of w ater to the
properties .

The parties

[4] The first applicant is Allen Targhi Tavakoli, a businessman and the registered
owner of the property situated at Erf 1 […], Cape Town, also referred to as 7[…] Kloof
Road, Fresnaye, Cape Town.

[5] The second applicant is DLX Properties (Pty) LTD, a private company with
limited liability, incorporated in accordance with the company laws of the Republic of
South Africa, with registration number 2000/026778 /07. It is t he owner of the
immovable property at Erf 1 […]2, Cape Town, also known as 6 […] Kloof Road,
Fresnaye. The second applicant operates as a guesthouse under the name Grande
Kloof Boutique Hotel. The first applicant is the sole director and shareholder of the
second applicant.

[6] The respondent is the City of Cape Town Municipality, a local government
authority established in terms of the Local Government: Municipal Structures Act 117
of 1998, with its principal offices situated at Civic Centre, 12 H ertzog Boulevard, Cape
Town.

Factual background

[7] On 13 November 2024, the respondent restricted and/or disconnected the
water supply to the properties. Since July 2022 , there has been an ongoing exchange
of communication between the applicants and various officials of the respondent ,
occasioned by disputes over the municipal valuations and outstanding municipal utility
bills of the properties. On 28 September 2022 , the respondent installed a flow limiting
disc to the hotel. However, due to subsequent settlement reached between the
parties, this matter was resolved. The final communication prior to the implementation
of the restrictions were implemented was received from the first applicant on 08
November 2024. He was detailing his financial and health conditions, essentially
pleading for indulgence in the settlement of his debts or disputes with the respondent.

Issue s

[8] The salient issues that arise from the discussi on above are twofold. Firstly,
whether the application is urgent. Secondly, the question , whether the respondent
was justified in disconnect ing or terminat ing the supply of water to the applicants ’
properties on 13 November 2024.

The l aw

[9] The Water Services Act1 is the legal framework that gives effect to the right of
everyone to have access to sufficient food and water .2 In this regard section 4 finds
application and reads as follows :

Conditions for provision of water services

1) Water services must be provided in terms of conditions set by the water
services provider.
2) These conditions must –
………
(c ) provide for -
…………
(iv) the circumstances under which water service may be or discontinued;
(v) procedures for limiting or discontinuing water services; and
………
3) Procedures for the limitation or discontinuation of water services must -
(a) Be fair and equitable;
(b) Provide for reasonable notice of intention to limit or discontinue water
services and for an opportunity to make representations, unless -
(i) Other consumers would be prejudiced;
(ii) There is an emergency situation; or
(iii) The consumer has interfered with a limited or discontinued
service; and
4) Every person who uses water services provided by a water s ervices
provider does so subject to any applicable condition set by that water
services provider.”

1 The Water Services Act, 108 of 1997
2 The Constitution, section27(1)(b)

[10] The City of Cape Town Municipal Water By-Law, 2010, among other regulates
the respondent’s conduct towards its customer s. In this scenario , recourse must be
had to Clause 25(5) which reads as follows: “The City must ensure that no domestic
consumer is denied access to basic water services in terms of this By -law.”

Dispute of fact

[11] According to the respondent, the restrictions or disconnection of the supply of
water supply to the properties was occasioned by misconduct on the part of the
applicants. They averred that, notwithstanding the installation of flow limiting trickle
discs (t he disc) on both properties, there was anomalous volumetric consumption of
water. In the case of the hotel at 6 […] Kloof Road, the disc was installed on 22 March
2024, and subsequently on 8 July 2024 at the residence of the first applicant at No.
7[…] Kloof R oad. On 13 November 2024 , an official of the respondent, Mr Lawrance
was dispatched to conduct an inspection at the properties . Mr Lawrance found that
there had been unlawful tampering or interference with the installed discs. At the hotel,
the disc had been tampered with and at home of the applicant, the disc had been
removed unlawfully.

[12] Following these discoveries, Mr Lawrance removed the water meter for the
hotel, and at the residence of the first applicant , re-installed the flow limiting t rickle
disc. A pro-forma notice was issued for unlawful tampering with municipal
infrastructure in the case of the hotel and the home , regarding the restriction measures
imposed. The implication thereof , was that the was a complete termination of water
supply to the hotel , with only a trickle flow of water at the home of the first applicant.

[13] On the other hand , the applicant s maintain that the supply of water to both
properties was completely cut off on 13 November 2024. The applicants deny that
there were flow limiting trickle discs installed by the respondent on 22 March and 8
July 2024 at either properties. According to them, there was always consistent flow of
water to both properties since 28 September 2022. On 27 S eptember 2022, a flow
limiting trickle disc was installed at the hotel located at 6 […] Kloof Road, due to arrears
owed by the applicants to the respondent. However , upon reaching an agreement
with the respondent, the restriction on the supply of water was removed. Subsequent
thereto, there had been no installation of restriction and or disconnection of the supply
of water until 13 November 2024.

[14] The two most relevant questions that emerge from the above are whether the
respondent had already implemen ted restrictions on the supply of water to the
properties on 22 March and 8 July 2024. Lastly, the question arises as to whether the
applicants tampered with the respondent’s infrastructure and unlawfully re -established
the water supply before the restriction was put in place on 13 November 2024,
resulting in ‘anomalous volumetric consumption’ of water within the properties.

[15] In resolving these dispute of fact s, the Plascon -Evans Rule3 has become trite.
It states;

‘where in proceedings on notice of motion disputes of fact have arisen on the
affidavits, where a final order is sought, whether it be an interdict or some other
form of relief, may be granted if those facts averred in the applicant’s affidavits
which have been admitted by the respondent, together with the facts alleged by
the respondent, justify such order. The power of the court to give such final relief
on the papers before it is, however, not confined to such a situation. In certain
instances, the denial by respondent of a fact alleged by the applicant may not be
such as to raise a real, genuine or bona fide dispute of fact. … If in such a case
the respondent has not availed himself of his right to apply for the deponents
concerned t o be called for cross -examination…and the court is satisfied as to the
inherent credibility of the applicant’s factual averment, it may proceed on the
basis of the correctness thereof and include this fact among those upon which it
determines whether the a pplicant is entitled to the final relief which he seeks…
there may be exceptions to this general rule, as, for example, where the
allegations or denials of the respondent are so far -fetched or clearly untenable
that the court is justified in rejecting them merely on the papers.4’


3 Plascon -Evans 1984(3) SA 620
4 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) .
[16] In casu , the respondent d id not have the SAP System record detailing the status
of the flow limiting trickle disc that was installed on 2 7 September 2022 , at which point
an agreement was reached to remove the restriction on the following day, 28
September 2022 . This remains the situation even though the dispute was resolved
and payment made in terms of a settlement agreement . Instead, there is a SAP
System record of the installation of another flow limiting trickle disc on 22 March 2024,
on the same property. If the implementation of the restriction on 22 March 2024 was
resultant of the arears of R223 358.605 in the instance of the hotel, it follows logically
that a similar restriction would have been im plemented at the applicant’s residence
because of the arear amount of R485 154.52. However, this was not the case , and
the respondent provided no explanation for this di stinction as to how it addressed the
outstanding arears of these properties . No explanation is provided regarding the
restriction, if it was indeed implemented on the other property, approx imately three (3)
months later, on 08 July 2024.

[17] It is also imperative t o thoroughly investigate the events that may have triggered
the inspe ction of the properties on 13 November 2024 , as they appear to have set in
motion everything that followed . The respondent proffered that they ‘identified a n
anomalous volumetric consumption of water at the properties, notwithstanding th e
installation of limiting trickle discs on the water meters at the properties’6
Consequently, Mr Lawrance was dispatched to the properties to conduct an
inspection. The respondent fails to take the court into its confidence and does not
clarify how much water it deemed a reasonable flow into these properties.
Furthermore, the respondent fails to offer a credible explanation regarding what
alterations occurred at what stage such changes took effect since the alleged
installation of restrictions on 22 March and 8 July to the properties, respectively.

[18] The statements of account issued and provided by the respondent for the
properties over a period of time will provide credible illustration of the water usage and
may explain why the respondent focused on the properties on 13 November 2024.
Each statement clearly allocates meter readings and the corresponding amount of

5 Answering affidavit, paragraph 68
6 Answering affidavit, paragraph 13
water for each period under review in that particular statement. Commencing with the
hotel located at Erf 1 […]2.

24 Nov 2022 - 25 Jan 2023 63 days 401. 000 kl
Ave usage per day 6.365kl
27/08 - 26/09/2023 31 days 150. 000kl
Ave usage per day 4.839kl
24/11 - 27/12/2023 34 days 215.000kl
Ave usage per day 6.324kl
25/01 - 26/02/24 33 days 213.000kl
Ave usage per day 6.455kl
27/02 -26/03/2024 29 days 205.000kl
Ave usage per day 7.069kl
25/04 - 24/05/2024 30 days 155.000kl
Ave usage per day 5.167kl
26/06 - 26/07/2024 31 days 136.000kl
Ave usage per day 4.387kl
27/07 - 30/08/2024 35 days 175.000kl
Ave usage per day 5.000kl
31/08 -23/10/2024 54 days 364.000kl
Ave usage per day 6.741kl

At Erf 1 […]

28/11 -27/12/2023 30 days 0.833kl
25/01 - 26/02/2024 33 days 5.000kl
Ave usage per day 0.152kl
31/08 - 27/09/2024 28 days 4.000kl
Ave usage per day 0.143kl

[19] The illustration above indicates that in respect of Erf 1 […]2, the hotel
maintained a consistent average daily water usage from November 202 2 through to
October 2024. Therefore, it cannot be equally accurate to state that the supply of water
was restricted on 22 March 2024 . This also holds true for Erf 1 […], which is the
residence of the first applicant. The available statements indicate a comparison ove r
30 days from January to February 2024 and shows a daily average usage of 0.152kl.
In the period of 28 da ys from August to September, the daily average usage is 0.143kl.
The data does not support the respondent’s claim that the supply of water to the hotel
(Erf 1 […]2) was restricted since 22 March 2024 and that there was similar restriction
implemented at the applicant’s home (Erf 1 […]) since 8 July 2024.

[20] Furthermore, there was frequent exchange of correspondence between the first
applicant and the officials of the respondent since J uly 2022 until 8 November 2024.
The subject of the discussion was always about the utility bills that were in arrears, the
disconnection of electricity supply to the properties , the valuation of the properties and
the payment options that were explored. It is reasonable to anticipate that, if the
respondent had restricted the supply of water to these properties, on 22 March and 8
July 2024 , somehow this subject would likely feature in their discussions . I mention
this because the hotel was operating throughout this period, logically, it would have
been impossible to continue with its business operations with a flow limiting trickle disc
installed to its water supply. Especially if the flow of water, evident in the utility bills
provided by the respondent , did not align with the expectations at the time the flow -
limiting trickle disc w as installed.

[21] The applicants denied any allegations that they had unlawfully tampered or
unlawful ly interfere d with the water infrastructure, thereby triggering the respondent to
disconnect/restrict the supply of water to both properties. Upon application of The
Plascon -Evans rule, one mu st take into account the available facts to be able to reach
a conclusion on what is plausible and credible. The respondent stated that when
Lawrance attended at the properties, he found that the disc that had been fitte d on 22
March 2024 at Erf 1 […]2 (the hotel) had been tampered with , while the disc at Erf 1 […]
(the home) had been removed .

[22] A detailed examination of the statements provided by the respondent reveal
that the water consumption at the properties was billed base d on meter reading s
presumabl y, conducted physically by the respondent’s officials. For instance, the
statement on water consumption during the period starting from 26 June to 26 July
2024, i ndicates a total consumption of 136 , 000 kl with a daily average of 4.387 kl.7
There is also a suggestion that this was an ‘actual reading’, for the period of 31 days.
Logic dictates that if there was any apparent damage to the installed flow limiting discs,
or blatant evidence of interference with the infrastructure, such would hav e been
observed by th e meter reader s.8

[23] Respondent provided no indication as to when these removal s or tampering
with the infrastructure might have occurred. The meter reading s from both properties
do not provide circumstantial evidence that could establish factual basis to even infer
the likely tim ing of such occurrences . The respondent similarly fails to present any
evidence or even minimal information regarding how this tampering might have taken
place and who could have engaged in these clearly unlawful activities. Furthermore ,
regarding the 13 November 2024 incident , when the respondent sent Lawrance to the
properties, there is no indication or data that sheds light or clarifies by who m or when
the interference was perpetrated . The fac ts presented clearly indicate that there was
a consistent inspection of the water meters for meter reading at both properties leading
up to 13 November 2024; however, none of the officials observed the damage caused
upon the respondent’s infrastructure.

[24] The discussion above emphasises clear facts that strongly support the
conclusion that, when applying the Plascon Evans Rule, the applicants' version, as
illustrated above, is both credible and plausible and t herefore, it ought to prevail. The
versio n of events provided by the respondent, regarding the circumstances that lead
to the disconnection of the water supply of to the properties is clearly untenable and
can only be false. Therefore, the facts upon which the issues in casu shall be
determined a re as set out in the applicants’ notice of motion, and to the extent that
they relate to the status quo before and at the time Lawrance was dispatched to the
properties on 13 November 2024.

The S poliation


7 Replying affidavit, RA 2.4, Page 214 of the bundle of documents.
8 Similar pattern can be seen in the Replying affidavit, RA 2.5, and RA 2.6 Page 217 -222 of the bundle
of documents
[25] On the basis of City of Cape Town v Strumpher9, counsel for both parties were
ad idem that mandament van spolie serves as a competent remedy when the dispute
relates to the restriction or dispossession of access to the supply of water. It was also
common understanding that the respondent, as a water service authority , had the legal
obligation to provide water services , and in exchange, the app licants were required to
pay for the said service.10 Further thereto, it was common cause that this relationship
was regulated by the Water By -Law (2010) and that , in the context of the dispute in
casu, clauses 4 and 25 found application, as shall be trav ersed below.

[26] In the context of spoliation, the specific attributes of the relief of mandament
van spolie are articulated in Van Rhyn and Others NNO v Fleurbaix Farm (Pty) Ltd, 3
as paraphrase d hereunder;

‘It is a robust remedy directed at restoring the status ante quo, irrespective of
the merits of any underlying contest concerning entitlement to possession of
the object or right in issue; peaceful and undisturbed possession of the thing
concerned and the unlawfu l despoilment thereof as all that an applicant for a
mandament van spolie has to show. Deprivation is unlawful if it takes place
without due process of law, or without a special legal right to oust the possessor.
The fundamental purpose of the remedy is to serve as a tool for promoting the
rule of law and as a disincentive against self -help. It is available both in respect
of the dispossession of corporeal property and incorporeal property. In a case
of a quisi -possession, the dispossession of a right will always entail the taking
away of the use in the right concerned.’

[27] In the case of the applicants, it bec ame common cause that there was
dispossession of the right to the supply of water on 13 November 2024. The applicants
bear the onus to demonstrate that at the time of dispossession , they were in peaceful
and undisturbed possession of the of the right to access water supply , and that the
deprivation was unlawful, without due process of law , as per Van Rhyn (supra).


9 City of Cape Town v Strumpher (104/2011) [2012] ZASCA 54 (30 March 2012) paragraphs 9 -11
10 The Water services act, 108 of 1997, section 11(1) and 11(2)(b)
Were the applicants in peac eful and undisturbed possession ?

[28] The response to this question can be found in the preceding discussion. The
fact that the applicants have been continuously receiving a consistent flow of water
since 28 September 2022, suffic iently support s their c laim that they had enjoyed an
uninterrupt ed supply of water until Lawrance arrived on 13 November 2024. It is
common cause that following the agreement to restore water on 28 September 2022 ,
there have been ongoing discussions aimed at resolving the issues concerning the
applicants’ outstanding arrears. It makes sense that there was never a need to discuss
the water situation because the parties were occupied with addressing the matter
through correspondence and meetings. Since then, they were engaged in ongoing
discussion regarding the resolution of the outstanding issues .

[29] The scientific evidence presented in the form of utility bill statements from the
respondent further augment the applicants’ claim that their supply of water to the
properties was uninterrupted and undistur bed until the disconnection on 13 November
2024. From April to May, the daily average us age was 5.167kl, June to July it was
4.387kl with an increase to 5.000kl in July to August and finally reached 6.741kl from
August to October. By any standards , this demonstrate s that the res pondent’s claim
that there was restriction status ante q uo, was untrue and could not be relied upon.
Therefore, the applicants establish ed that they indeed had uninterrupted and
undisturbed possession of the supply of water when the disconnection/dispossession
was implemented on 13 November 2024 .

Was the conduct of the respondent unlawful ?

[30] In this regard, the applicants emphasised that the deprivation by the respondent
on 13 November 2024 w ere both unlawful and unjustified. The applicants submitted
that the conduct of the respondent constituted a violation of the rights of the applicants,
as the respondent acted without prior notice and or due process , which would have
allowed for an opportunit y for engagement between the parties.11


11 The Water S ervices Act, 108 of 1997, section 3 and Clause 25(5) of the City By -Laws, 2010
[31] On the other hand the respondent argued that upon discover ing the applicants
had unlawfully tampered with the infra structure, resulting in the reconnecting its water
supply, it acted in accordance with its procedures by disconnecting the supply and
providing written notice.12 The respondent further submitted that , as a water service
provider , it was empowered to develop conditions that, inter alia, regulate d the
circumstances and procedures under which water services may be restricted or
discontinued.13 Therefore, the respondent’s conduct was not a contravention of its
own legal framework which required it to ensure that no domestic consumer is
deprived of access to basic water services as stipulated by this by -law.14

[32] The force and effect of the provision s outlined above must be considered in the
context of the circumstances of the applicants at a particular time and situation . There
were domestic consumers in both propert ies. The property located at Erf 1 […] serves
as the residence of the first applicant, while Erf 1 […]2, operat e as a boutique hotel.
There were also employees of the second applicant who resided permanently on the
hotel premi ses. No one from among st the residents from either properties had been
found to be responsible for the allegations of tampering or violation of the applicable
By-Laws. The respondent's argument that an inference should be drawn regarding
their role as p erpetrators is unfounded and primarily relies on speculation.

[33] Given the background facts traversed above and the relationship established
between the respondent and the first applicant , it seems improbable that the applicant
would allow his properties to remain without water supply for several months. In the
case of a hotel and the nature of its operation , it is untannable that it would operate
since 22 march 2024 without water. Furthermore, if the flow o f water was contrary to
the amount it would have been expected since t he restriction, the respondent would
have noticed and engaged the first applicant. That is, if there was any reason to
believe that h e or his employees were involved. The lack of a def initive connection
between the residents of the properties and the purported damage to the respondent’s
infrastructure does not support the respondent’s case in any way.


12 The City of Cape Town By-Law 2010, Clause 25(4)
13 The Water Services Act, 108 of 1997, section 4
14 The City of Cape Town Water -service By - Law, Clause 25(5)
[34] In Van Rhyn, the court also clarified that ‘deprivation remains and is considered
unlawful if it takes place without due process of law, or without a speci fic legal right to
oust the possessor . This is especially important because mandament van spolie
remedy seeks promot e the rule of law and serves as a deterren t against self -help. In
the scenario where it is believed that there was tampering or removal of the
respondent’s infrastructure, indicating unlawful conduct by the applicants, it would
have been essential to follow due process of law prior to any deprivation being
enacted. This would have provided the involved parties with the chance to investigate
and arrive at a definitive conclusion regarding the situation.

[35] Mr van Aswegen for the respondent submitted that the respondent r elied on
this provision whe n Mr Lawrance made the discovery of tampering or interf erence with
the infrastructure. However, on his own admission, the respondent relied on inference
that it would have been the applicants who committed that unlawful interference or
tampering. He was unable to point out whether there was any evidence to suggest
when this interference or tampering was perpetrated. Thus, they could not establish a
factua l foundation for drawing such inferences, other than to simply attribute it to the
applicants .

[36] The respondent is empowered to disconnect any user who has unlawfully
reconnected the water supply after b eing restricted or disconnected .15 However, there
is a requirement that such disconnection must be done ‘ on written notice’ . Which
brings one to the next consideration as to whether the applicants were given written
notice when the supply was disconnected. When engaging as to how the respo ndent
ought to have exercise d its powers regarding the disconnection of water service, it is
imperative to also have due regard to the procedure set out in section 4(3)(b) of the
Water Services Act. Among other considerations , there is a requirement that the
disconnection is conducted in a fair; equitable and must provide reasonable notice of
intention to limit or disconnect water service . Furthermore, it must provide for the
opportunity to make representations , unless the customer ha s interfered with a limited
or discontinued service. The respondent lacked any evidence to link the applicants to

15 City of Cape Town By -Laws, Clause 25(4)
the alleged interference with its infrastructure, thus it was not entitled to invoke the
provisions of Section 4(3)(b) (iii).

[37] A closer reading of this section indicates that the respondent would require to
possess definit e evidence that it was the customer who interfered with the limited or
discontinued service. Which remains a ga p in the procedure that the respon dent
sought to follow. In short, regardless of the approach taken to assess whether the
respondent acted lawfully when i t restricted or disconnected the supply of water to the
properties, the respondent’s conduct fail s to pass m uster. Therefore, the conduct of
the respondent was unlawful when it dispossessed the applicants of the supply of
water to the properties.

Urgency

[38] It is common cause and a widely recognised fact that water is a basic necessity
for day to day survival. The applicants submitted tha t on 13 November 20024, as soon
as they became aware that there was disconnection of w ater supply to the properties,
they alerted the official of the respondent, Mr Siboniso, with whom he had already
engaged in an exchange of correspondence regarding the v arious issues. The
applicant s also expressly requested Mr Siboniso to ensure that the matter receive d
urgent attention. Following an exchange of email s that yielded no positive outcomes,
the litigation process was commenced.

[39] The respondent bemoan ed that when the application was served, the re was
only a four-hour notice period. Within that brief period, the respondent had to consult
and prepare a meaningful re action to the claim of the applicants. In protest, the
applicants submitted that a demand was communicated to the respondent on at least
two occasions and the respondent was non responsive to the demands . However, the
issue remains unresolved until the m atter served before the court.

[40] When an allegation of urgency is made, ‘the correct approach in the
determination is to first understand that harm alone does not establish urgency. The
applicant must a dditionally a lso demonstrate that they cannot obtain tim eous redress
for that harm through normal legal processes. The court must objectively evaluate the
circumstances in order to conclude whether the urgency is genuine and not self-
inflicted. ’16 The questions to be answered must also be guided by Rule 6(12) (b) of
the Uniform Rules of this Court.

It provides that:

“In every affidavit or petition filed in support of any application under paragraph
(a) of this subrule, the applicant must set forth explicitly. The circumstances
which is averred render the matter urgent and the reasons why the applicant
claims that applicant could not be afforded substantial redress at a hearing in
due course .”

[41] On the question of urgency, the respondent did not refute the substance of the
applicants’ assertion that they met the requirements of urgency. Save to confirm that
when the matter served before court on 15 November 2024, the parties agreed that
the respondent should restore the water su pply to the properties, pending the
finalisation of the litigation process. Certainly, this may have been in appreciation of
the harm that may have been caused and that it was not possible for the applicants to
obtain time ous redress through the normal leg al process es.

[42] The Courts have settled that deprivation of water supply by a water service
authority is inherently an urgent matter that ought to be resolved by means of a
mandament van spolie . As it was described in Ngqukumba v Minister of Safety a nd
Security and Others , spoliation as a remedy is widely accepted to be an inherently
urgent relief to the possessor who was unlawfully spoliated aiming to restore them
before all else of unlawfully deprived possession .17 In the case of the applicants, the
disconnection of the su pply of water to the properties was erratic, when attempts were
made to have it restored, the officials of the respondent were not responsive.


16 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Another (11/33767)
[2011] ZAGPJHC 196 (26 September 2011)
17 Ngqukumba v Minister of Safety and Security and Others (CCT 87/13) [2014] ZACC 14; 2014 (7)
BCLR 788 (CC ); 2014 (5) SA 112 (CC) (15 May 2014) para 10
[43] The approach adopted by the applicants when they discovered that the water
supply was disconnected , without a positive response from the r espondent’s officials
cannot be faulted. On a conspectus of all the relevant facts, I am satisfied that the
applicant s have demonstrated their application was urgent, and that in the absence of
immediate redress, they would have sustained irreparable harm to their rights,
livelihood and basic needs.

[44] Urgency has been established and the matter is indeed urgent.

Costs

[45] Both Counsel submitted n o reason why the costs should not follow the results ,
and on Scale B. From my assessment of the conduct of the proceedings from the time
the matter first appeared on 15 November 2024 and the subsequent postponements,
I share their sentiment.

Order

[46] The order below is made:

1. The applicants’ none compliance with and dispensing with the forms, time
periods and service provided for in the Unifo rm Rules of Court and disposing
of this application as one of urgency in accordance with the provisions of
Rule 6(12)(b) is condoned;

2. Respondent shall r estore the supply of water to Erf 1 […], Cape Town, also
known as 7 […] Kloof Road, F resnaye, Cape Town, and to Erf 1 […]2, Cape
Town , also known as 6 […] Kloof Road, Fresnaye forthwith;

3. The respondent to pay the costs of this application and all costs that stood
over at Scale B.


----------------------------------------------------
SIPUNZI AJ
ACTING JUDGE OF THE HIGH COURT


Appearances

For the Applicants : Adv Z Haffejee
Instructed by : Nirenstein Attorneys Inc .

For the respondent : Adv A van Aswegen
Instructed by : Timothy and Timothy Attorneys

Date of Hearing: 12 May 2025
Date of Judgment: 23 May 2025

This judgment was handed down electronically by circulation to the parties’
representatives by email.