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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT )
Case No: EL516/2025
In the matter between:
RICARDO WALTERS Applicant
and
BUFFALO CITY METROPOLITAN MUNICIPALITY 1st Respondent
THE MUNICIPAL MANAGER:
BUFFALO CITY METROPOLITAN MUNICIPALITY 2nd Respondent
JUDGMENT
ZONO AJ :
Introduction
[1] An u gent order in the context of motion proceedings was obtained by the
applicant on 20 March 2025 in terms of which an interim relief was granted. The
following interim relief was granted as paragraphs 3.2, 3.3, and 3 .4 of the co urt order :
“3.2 That the respondents be and are hereby directed to reconnect the
electricity supply to the premises within 4 (four) hours after service of the
court order, by the applicant ’s attorney, at the offices of the second
responde nt.
3.3 That the respondents be and are interdicted and restrained from charging
the applicants a reconnection fee as a result of the unlawful termination /
disconnection / discontinuation / blocking of service.
3.4 That the respondents are interdicted and restrained from unlawfully
terminating / disconnecting / blocking the supply of electricity to the
premises ” (sic)
[2] The applicant seeks the interim order to be made final and that an order
declaring the respondent s’ termination / disconnection / blocking of the electricity supply
to his property situat ing at No 1[...] L[...] Road, Buffalo Flats , East London to be
declared unlawful. He f urther seeks an order of costs against the respondent s.
[3] The high watermark of the applicant ’s case is that before the termination of
electricity supply by the respondent to his property, the applicant was enjoying full and
uninterrupted supply of electricity to his property . The electricity supply was terminated
on 12 March 2025. The applicant laments that no notice had been given to him prior to
the termination as required by law. There are no lawful grounds that would necessitate
termination of e lectricity supply without notice .
[4] The application is opposed by the respondents . Notice to oppose and answering
affidavit have been filed of record. Opposing papers have been followed by the filing of
replying affidavit. Head s of argument and practice notes have been filed by both parties.
The matter was duly enrolled in the opposed motion court. Parties argued for the final
relief.
Legislative framework and analysis
[5] The applicant relies on the provisions of section 115 (1) of the Local Government
Municipal Systems Act, 32 of 2000 which is the national legislation , provisions of which
are w orded as follows :
“Any notice or other document that is served on a person in terms of this Act 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 re gistered or certified mail to that person's last
known residential or business addres s in the Republic and an
acknowledgement of the posting thereof from the po stal services is obtained;
(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
provid ed by paragraphs (a),(b), or (c) or
(e) if that person's address and agent or representative 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.”
[6] The applicant also relies on the provisions of section 1 3(1) and 15(1) of the
Electricity By-Law1.Section 13 (1) of the Electricity By-Law provides for service of any
notice or documents in the manner provided in paragraph (a) to (e) of the section .
Section 13 (1) of the Electricity By-Law is crafted substantially in identical or similar
terms as section 115 (1) of the Municipal Systems Act. However, section 15 (1) of the
1 Published in the Provincial Gazette , extraordinary, 24 November 2023.
same Electricity By-Law provides for a notice period of 14 days. The correct wording of
the prov ision is as follows :
“1. The municipality has the right to disconnect the supply of electricity to any
premises after fourteen (14) days of written notice …”
In a nutshell, the municipality is enjoined to serve written notice upon the consumer
fourteen ( 14) days before the termination of the electricity supply. A similar provision is
contained in section 14 (6) of the Electricity By-Laws , wording of which is as follows :
“6. The termination shall be effected at no less than 14 working days after
service.”
[7] Another important provision for purposes of this matter which is c ouched in
similar terms of section 115 (1) Municipal Systems Act and section 1 3(1) of the
Electricity By-Law, is section 14 (4) of the same Electricity By-Law. Section 14 (4) of the
Electricity By-Law provides as follows :
“4. If delivered by hand, the pre -termination notice shall be deemed to have been
effectively and sufficiently served on the consumer -
(a) when it has been delivered to them personally;
(b) when it has been left at their place of residence or business with a person
apparently above the age of sixteen (16) years old; or
(c) when it cannot be delivered as contemplated in (a) and (b) above, if it is
placed in a conspicuous place o n the immovable property to which it
relates.”
[8] Applicant ’s case is met with respondents ’ opposition. The respondent s mount a
case that the applicant was notified of the impending disconnection of his electricity
supply as far back as on 22 March 2024 in terms of the Electricity By-Law. That notice
was saved upon one Mfuneko Ramncwana who was the person apparently over t he
age of sixteen (16) years at the applicant's place in question. This notice was served by
Athenkosi Smiles of Yanda Engineering and Projects who was respondents ’ appointed
service provider. Th e second notice was served by Luvo Booi of Yande Engineering
and Projects who, on 24 February 2025, allegedly affixed the 14-day pre-termination
notice at the gate of the applicant's property. Both notices are annexed to the papers,
and they reflect applicants’ address.
[9] Applicant ’s property in question situates at No 1[...] L[...] Road, A malinde Forest,
East London. Both Athenkosi Smiles and Luvo Booi deposed to their respective
affidavits attesting to the fact that they effected service of the notice respectively in the
manners referred to above. In reply , the applicant vehemently denies respondents ’
assertions relating to service of the notices. The applicant states that he occupies his
premises on a permanent basis. With regard to the first notice , the applicant refutes that
Mfanelo Ramncwana reside s at the premises. The applicant f irmly states that he does
not know Mfanelo Ramncwana and further lists the names of the occupants of his
promises . Ramncwana is none of those listed. The applicant further assa ils the
appointment of Yande Engineering and Projects as respondents ’ service provider. The
applicant complains about the lack of resolution o r authority that appointed Yande
Engineering and Project s. This point i s unmeritorious and deserves a short shrift .
[10] A letter dated 31 January 2023 is a nnexed to the papers. Its addressee is Yande
Engineering and Projects . Its contents certainly appoint and give authority to Yande
Engineering and Projects to deal with matters relating to disconnections of the electricity
supply . The power to serve pr e-termination notice is incidental to and implied in the
express powers relating to termination or disconnection of electricity supply. A power to
serve pre- termination notice is a power without which a lawful termination of the
electricity supply can be achieved. It is without a doubt that the appointment or authority
is for a lawful termination or disconnection of electricity supply. Therefore, lawful
termination can only be achieved if there is a pre -termination notice. It is in that context
that the service of the pre -termination notice is necessarily part of the authority to
disconnect the electricity supply to consumers.
[11] The correct text of the letter dated 31 January 2023 is relevant to be set out for a
correct and proper interpretation. The contents of the letter are as follows :
“CONTRACT NO: CE 224: THE DISCONNECTION , RECONNECTION, AND
INSPECTION OF ELECTRICAL SERVICE S/METERS FOR BCMM FOR A
PERIOD OF THREE (3) YEARS .
I have pleasure in informing you that the City Council has accepted the tender for
the Contract No: CE 224: The Disconnection, Reconnection and Inspection of
Electrical Services /Meters for BCMM for a period of three (3) years to be
awarded to the following bidder, Yande Engineering & Projects for being the
highest point scorer on the Price and BBBEE scoring on a Rates only basis
as per BAC number (29 6/22) BCM Bid Adjudicat ion Committee held on 08
December 2022.
This contract is rate -based contract as quantities were estimated and used for
evaluation purposes only and that the actual quantities will be based on demand
and budget availability.
This award is in line and accordance with the terms and conditions of contracts
as stipulated in the tender document. The contract will be effective from the date
of acceptance signed by the bidder.
L. MBULA
ACTING CITY MANAGER” ( sic)
[12] In Endumeni Municipality2 Wallis JA held that:
“18... Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract, having
regard to the context provided by reading the particular provision or provisions in
the light of t he document as a whole and the circumstances attendant upon its
coming into existence. Whatever the nature of the document, consideration must
2 Natal Joint Municipal Pensi on Fund v Endumeni Municipality 2012 (4) SA 296 (SCA) para 18.
be given to the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its production.
Where more than one meaning is possible each possibility must be weighed in
the light of all these factors. The process is objec tive not subjective. A sensible
meaning is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges must be
alert to, and guard against, the temptation to substitute what they rega rd as
reasonable, sensible or businesslike for the words actually used. To do so in
regard to a statute or statutory instrument is to cross the divide between
interpretation and legislation. In a contractual context it is to make a contract for
the parties other than the one they in fact made. The ‘inevitable point of
departure is the language of the provision itself’, read in context and having
regard to the purpose of the provision and the background to the preparation and
production of the document. ”
[13] I have already indicated the context in which the appointment of Y ande
Engineering and Projects was made. As Lord Steyn said3 “In law, context is everything .”
This dictum was approved by the Supreme Court of Appeal .4 Powers [of the
respondents ’ service provider] will include those which are reasonably necessary or
required to give effect to and which are reasonably or properly ancillary or incidental to
the express powers that are granted .5
Accordingly, it is reiterated that the power to lawfully disconnect or terminate electricity
supply implies the power to serve pre -termination notice.
[14] In conclusion on this aspect, there is no proper application before this court to set
aside service providers’ appointment, or to dec lare the service of the pre -termination
3 R v Secretary of the State for the Home Department , Ex park D aly [2001] UKHC 26; [2001] 3 ALL ER
433 (HL) at 447 (a).
4 Aktliebolaget Hassle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) para 1; Minister of Home
Affairs and Others v Scalabrini Centre, Cape Town and Others 2013 (6) SA 421 (SCA); 2013 (4) All SA
471 (SCA) para 89.
5 Administrator, Transvaal v Brydon 1993 (3) SA 1 (A) 9C – D; Moleah v University of Transkei and
Others 1998 (2) SA 522 (TK) at 53 8 I.
notice unlawful as a result of unlawful appointment of the service provider. It is well
settled in our la w that until a decision is set aside by a court in proceedings for judicial
review it exist s in fact and it has legal consequences that cannot simply be overlooked.6
The respondents who appointed the service provider accepts that it acted within its
mandate and service of the pre -termination notices is within service providers’ mandate .
Issue for determination
[15] The central issue in this matter is the delivery of the pre -termination notice.
Whether or not pre -termination notice was served upon the applicant is not only in
issue , it is also in serious dispute. There are obvious factual disputes herein .
[16] The starting point should be Rule (6)(5)(g) of the Uniform Rules. The said rule
provides t hus:
“(g) Where an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems fit with a view to ensuring
a just and expeditious decision. In particular, but without affecting th e generality
of the aforegoing, it may direct that oral evidence be heard on specified issues
with a view to resolving any dispute of fact and to that end may order a ny
deponent to appear personally or grant leave for such dep onent or by other
person to be s ubpoened to appear and be examined and cross examined as a
witness or it may refer the matter to trial with appropriate directions as to the
pleadings or definition of issues , or otherwise .”
[17] During a rgument of this matter , applicant ’s counse l, Mr. Du Plessis was invited to
make submissions about an appropriate relief in the event that this court finds that there
is a serious dispute of fact besetting this matter. His submission was twofold : firstly, he
submitted that there is no dispute of fact in the matter ; secondly in a somewhat
6 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) para 26; South
African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others 2016 (2) SA 522
(SCA) para 45.
alternative argument , which appeared to be accepting that there is a dispute of fact in
the matter, he submitted that respondents ’ version should be rejected as farfetched ,
implausible and as is clearly untenable . The ultimate su mmit of his argument was that
applicants ’ version must be accepted, and a final relief be granted. No application for
the hearing of oral evidence was ever made , either on the papers no r during the
argument of the case . Accordingly , an option of considering referral of the m atter fo r
hearing of oral evidence is not on the table. I will therefore not deal with such cases
where or in which an application for hearing of oral evidence has been made .
[18] Motion proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts. Unless the circumstances are
special, they cannot be used to resolve factual issues because they are not designed to
determine pro babilities . It is well established under the Plascon -Evans rule that w here in
motion proceeding s disputes of fact arise on the affidavits , a final order can be granted
only if the f acts averred in the applicant ’s affidavits, which have been admitted by the
respondent , together with the facts alleged by the latter, justify such an order . It may be
different if the respondents ’ version consists of bald or uncredit worthy denials, raises
fictitious disputes of fact, or palpably implausible , far-fetched or so clearly untenable that
the court is justified in rejecting them mere ly on the papers .7
[19] In Headfour (Pty) Ltd8 Hefier JA held thus :
“12 Recognizing that the truth almost lies beyond mere linguistic determination
the courts have said that an applicant who seeks final rel ief on motion must in the
event of conflict , accept the v ersion set up by his opponent unless the l atter’s
allegations are, in the opinion of the court, not suc h as to raise a real, genuine or
bonafide dispute of fact or are so far - fetched or clearly untenable that the court
is justified in rejecting them merely on the papers …”9
7 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 634 – 5.
8 Wightman t/a JW Construction v Head four (Pty) Ltd and Another 2008 (2) All SA 512 (SCA) para 12.
9 See footnote 7 above at 634E – 635C.
See also the analysis by Davis J in Ripoll -Dausa v Middleton NO and Others
(1574/04) [2005] ZAWCHC 6; 2005 (3) SA 141 (C) at 151 -153 with which I
respectfully agree. (I do not overlook that a reference to evidence in
circumstances discussed in the authorities may be appropriate. ”
[20] In sum, it raises a real dispute that Athenkosi states under oath that on 22 March
2024 he delivered the 14-day pre-termination notice at applicant’s premises upon one
Mfanelo Ramncwana who allegedly accepted the service on behalf of the owner . Mr.
Ramncwana is described by the respondents as a tenant in the applicant’s premises. I
cannot shy away from the fact that the sa id pre -termination notice is signed and the
name of Mfanelo Ramncwana is written as a person who received the notice. The word
‘tenants ’ (sic) and the date of 22 March 2024 are also found at the foot of the notice.
The reason I find that th ere Is a rea l and a bona fide dispute in this regard is because
the applicant seriously disputes the factual allegations .
[21] In addition to the alleged service by Athenkosi Smiles , Luvo Booi states under
oath that on 24 February 2025 he delivered the fourteen (14) day pre -termination notice
by affixing the notice at the gate of the applicant's property . The dispute referred to
above is not fictitious. In the light of the above circumstances, I cannot reject
respondents ’ case merely on papers . The only available avenue in these circumstances
is to dismiss the applicant ’s application. I find that the gate at which the notice was
placed is a conspicuous place in the applicant’s property, as contemplated by section
115 of Municipal Systems Act and section 13 and 14 of the Electricity By -Law.
[22] It is undesirable that a court ‘mero motu’ orders a referral of oral evidence .10 I
have stated above that no application has been made for the referral of the case for the
hearing of oral evidence. Therefore, because of that the court would not probe and
debate with counsel the principles involved when such application is made.
10 Joh-Air (Pty) Ltd v Rudman 1980 (2) SA 420 (T) at 428 – 9; Santino Publishers CC v Waylite Marketing
CC 2010 SA 53 (GSJ) at 26F – B.
[23] The only outstanding issue now is the one of costs . The applicant’s application
has failed . I see no reason why a general rule cannot be applied. Costs should follow
the result .
[24] In the result I would make the following order :
24.1 The application is dismissed .
24.2 The Rule Nisi granted by this court on 25 March 2025 is
discharged .
24.3 The applicant is ordered to pay costs of the application .
_________________________________
AS ZONO
JUDGE OF THE HIGH COURT (Acting)
Appearances
For the Applicant : Mr Du Plessis
Instructed by: NJ Du Plessis & Associates
Incorporated
14 Athlone Crescent
Selbo rne
EAST LONDON
Contact: 043 740 0424
For the 1st & 2nd Respondent s: Ms Kela
Instructed by: Malusi and Company Attorneys
7 Tecoma Street
Berea
EAST LONDON
Contact: 043 722 9316
Date heard 29 May 2025
Date delivere d 10 June 2025