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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case No: 2515/2025
In the matter between:
L[...] N[...] 1st Applicant
N[...] M[...] 2nd Applicant
and
KING SABATA DALINDYEBO MUNICIPALITY 1st Respondent
THE MUNICIPAL MANAGER: KSD LOCAL MUNICIPALITY 2nd Respondent
EASTERN CAPE DEVELOPMENT CORPORATION 3rd Respondent
JUDGMENT
ZONO AJ:
Introduction
[1] The applicant s are two major female persons residing at erven 1[...] and 1[...]2
W[...] Hotel, Sutherland Street, Mthatha. The basis of their occupation of the premises is
not apparent from the papers. They reside therein with their respective children who are
still school go ers.
[2] The applicant s approach ed this court for the relief that is more fully set out in the
notice of motion. The relief sought in the notice of motion is c ouched in the following
terms :
“1. That the applicant s be and are hereby granted leave to bring this
application as one of urgency dispensing with normal processes in terms
of rules 6 (12) of the Uniform Rules of Court.
2. That a rule nisi do hereby issue calling upon the respondents to show
cause, if any, on Tuesday 24 June 2025 at 09h30 am or so soon
thereafter as the matter may be heard why the following order should not
be made final:
2.1 That termination of electricity supply on erven 1[...] and 1[...]2 , W[...]
Hotel, Sutherland St reet, Mthatha be and is hereby reviewed,
corrected, declared unlawful and is set aside.
2.2 That the instruction to terminate the electricity supply at W[...] Hotel
and given by the third respondent to the second respondent be and
is hereby declared unlawful and / or is reviewed, corrected and set
aside.
2.3 That the first and second respondents be and are hereby directed
to reconnect the electricity supply to W[...] Hotel, Mthatha forthwith.
2.4 That the respondent s are hereby in terdicted and / or restrained
from terminating the electricity supply to the s aid premises without
affording the applicants and or occupiers of the premises notice
and an opportunity to make representation and / or without
following a due process of the law.
2.5 That the applicant ’s failure to exhaust the internal remedies as may
be provided for in any other law be and is hereby condoned.
2.6 That the first and second respondent be and are hereby directed to
pay the costs of this application jointly and severally with the third
respondent to pay costs only in the event of opposition.
2.7 That the court grants such further and or alternative relief.
3. Paragraph 2.3 to 2.4 shall operate as a n interim order or mandamus
pending the finalization of this application. ” (sic)
[3] The nature of these proceedings is that of a review application . In addition to
paragraph 2.1 and 2.2 of the notice of motion (“review”) the main dep onent makes the
following allegations in the founding affidavit:
“17. This is an application seeking, in the main, review and setting aside of the
decision to disconnect th e supply and an urgent order directing the respondent to
reconnect the electricity supply to the premises known as W[...] Hotel in the
district of Mthatha .
18. The re are other ancillary relief sought as is apparent from the pre -fixed notice
of motion ”.(sic)
[4] The applicant s state that , by virtue of their residen ce and occupation of the
property , they were users and consumers of the electricity supplied to the premises by
the municipality. They have been enjoying the beneficial use of the electricity supply
without hindrance. On 5th May 2025 the municipalit y’s o fficials disconnected electricity
supply from applicants ’ premises without the requisite notice, accordingly the
disconnection or termination was unlawful. The applicants ’ ultimate submission in this
regard is that the electricity supply w as terminated in a procedurally unfair and illicit
manner. The applicants con tend that they were not informed of the reasons for
disconnection and their right to make representations. They were not informed of their
right to review or appeal the decision.
[5] The applicant s further direct th eir attack to the third respondents ’ (ECDC) request
made to the municipality to terminate the electricity supply to erven 1[...] and 1[...]2 ,
Mthatha. The request is dated 3 December 2024, and it describes the ECDC as a
consumer in a contract with the municipality for the supply of electricity to ECD C owned
properties. Essentially the request was made by ECDC, the consume r, to the
municipality who is the credit provider , for termination of their contract in respect of
ECDC properties listed in the annexure attached to the letter or notice. Erf numbers
1[...] and 1[...]2 , listed as item number 57 of the listed ECDC properties. The ECDC
gave the municipality 4 (four) days’ termination notice. I will turn to that notice later in
this judgment .
[6] The applicants con tend that they should have been notified of the termination of
agreement / contract between the municipality and ECDC. They make an as sertion that,
as users and consumers of the electricity supply, they should have been given an
opportunity to make representat ions as to why the request for disconnection should not
be effected. Th eir right to be informed or notified of the decision taken by the
respondents is rooted in the notion that they are users and consumers of the electricity
supply to the property they occupy.
[7] The applicant s conclude that the respondents ’ decision to terminate electricity
supply adversely affected their rights and legitimate expectations. The ir legitimate
expectations were created by the fact that they had been receiving the electricity supply
from the time they had started occupying the premises. They relied on the rules of
natural justice and Promotion of Administrative Justice Act 3 of 2000 ( PAJA). It is their
case that the municipality provided electricity to the premises for the benefit of the
occupiers thereof.
[8] Although the applicants con tend that they have a right to be notified of the
proposed decision to terminate electricity supply , they do not advance their argument
and spell out the nature and the source of their right to the electricity supply. The ir lack
of disclosure of the nature and source of their right to electricity supply is intertwined
with another failure to set out the basis of their occupation of the premises. I will t urn to
this later in the judgment.
[9] Only the first and second respondents are opposing this application. In so doing
they have not only filed the ir notice to oppose, they have also filed their answering
affidavit . The third re spondent, ECDC is not opposing this application. I may mention
from the onset that the majority of allegations in the answering affidavit filed by the
municipality ’ parties affect the ECDC as they refer to the relationship between the
municipality and the EC DC. The second respondent, the municipal manager, deposed
to the answering affidavit.
10] The municipality contends that it provides municipal services such as electricity
to each household on the basis of the contract entered into between the owner of the
property and the municipality at the time when the owner takes ownership of the
property . The municipality had a contract with the ECDC for the supply of the municipal
services to the property described as e rven 1[...] and 1[...]2 , Mthatha . The contract was
partly written and partly informed by the provisions of the Credit Control and Debt
Collection Policy 2024 – 2025 (“the policy ”) and the municipality Electricity By law (By -
Law) published on 18 July 2024 . The contract complied with the aforesaid statutory
prescripts and was accordingly lawful. Of importance the municipality pleads that the
municipality would terminate the contract on notice to the EC DC and on good cause ,
such as failure to pay for municipal services .
[11] During December 2024 ECDC terminated the contrac t aforesaid with effect from
10 December 2024 in terms of the letter or notice dated 3 December 2024. The relevant
contents of the notice or letter are set out hereinafter as follows:
“1.1 The E CDC in its capacity as a consumer in the contract with the
municipality for the supply of electricity to EC DC properties (their
properties as described in Annexure “A” hereto) and is the registered
owner of the properties , hereby gives its (4) four days written notice for the
discontinuance of the electricity supply to the properties.
1.2 The EC DC gives the municipality its written notice for the discontinuance
of the electricity supply to the properties in terms of section 24 of the King
Sabata Dalindyebo M unicipality , electricity suppl y By-Law.
1.3 The ECDC gives its n otice that the municipality is to discontinue the use of
supply to the properties with effect from Tuesday 10 December 2024.
1.4 The ECDC will not be liable for any payments due or that arise in terms of
the tariff for the supply of electricity to the properties after the expiry of the
notice above , being after 10 December 2024 …”
2. …
3. …”
[12] It is fundamentally important that the municipality accepted the termination of the
contractual relationship between it and the ECDC. That is born e out not only by the
conduct of terminating the electricity supply to the property , also by its strong reliance
on the notice of termination dated 3 December 2024. I am therefore justified to conclude
that the termination of the contract was by consent , as the termination of the electricity
supply was.
Discussion and analysis
[13] The contract is a matter between the parties there to, and no one who is not a
contracting party will incur any liability or derive any benefit from the terms thereof. The
contract regulates the relationship between the two contracting parties . It is generally
governed by the sphere of private law.
[14] Christie1 aptly puts it under the heading “Privity of Contract ”:
“The basic idea of contract being that people must be bound by the contracts
they make with each other it would obviously be ridiculous if total strangers could
sue or be sued on contracts with which they w ere in no way connected . The
doctrine which prevents a ridiculous situation arising is usually known as the
doctrine of privity of contracts. Parties who are not Privy to a contract cannot sue
or be sued in it”.
In Gugu2 Van Zyl ADJP (as he then was) shared the same sentiments .
[15] It is hard to comprehend how a non-party to the contract can seek , by
subterfuge , to enforce a contract to which he or she is not a party if there is no legal
basis for that endeavor . The legal basis would be “stipulatio alteri ” if same is relied
upon . Unfortunately, nowhere in the applicants ’ papers does it appear that the
agreement between the municipality and the EC DC was entered into for the benefit of
third parties . The reason for that is pla in and understandable ; the applicants d isavow
any reliance on the contract which they knew at least at the time when the notice or
letter terminating the contract between the municipality and the ECDC was
communicated to them on 16 May 2025 .
[16] I have indicated earlier that the applicants have not pleaded the source of their
entitlement to the electricity supply. They clearly do not allege any right to the electricity
supply , whereas the effect and the true nature of these proceedings are about the
enforcement of the right to the electricity supply. What the ap plicant seek s to be
restored is electricity supply to the property. A further bizarre is that the applicant s do
not disclose any legal relationship to the property. What they disclose is that at some
point there were proceedings to evict them from the premises. That clearly
1 R H Christie: The Law of Contract in South Africa , 5th Edition, page 260.
2 Gugu and Another v Zongwana and Others 2014 (1) All SA 203 (ECM) para 21.
demonstrates that they are not occupying the property at the behest of the ECDC, who
is the owner thereof.
[17] However, they formulated their case to find basis on the grounds of the
procedurally fair administrative actions . The gra vamen of their contention is that ,
municipalit y’s decision to terminate the electricity supply was procedurally unfair
because no notice was given to them prior to the termination of the electricity supply.
They do to impugn the agreement to terminate the contract between the municipality
and the ECDC. It is re-iterated that as outsiders to contract , they cannot impugn parties ’
arrangement to terminate their relationship. The application to review and set aside the
instruction (which effectively is a notice of cancellation of contract ), and acceptan ce
thereof is without merit . The practical effect of the applicants ’ review application is to
reinstate, revive and or breath life to an extinct contract between the municipality and
the ECDC. They do so for their baseless benefits .
[18] The applicants’ reliance on PAJA is equally misplaced for multifarious reasons.
PAJA is a sphere of public law which should have little application, if any, on private law
matters. The agreement b etween the contracting parties is a private law matter which
should not be convoluted with public law principles, without special circumstances.
[19] A PAJA review may be instituted if there are substantive rights to be adversely
affected by the decision of the administrator. A fair ad ministrative procedure is
necessary only if there are substantive rights to be affected by the administrative action.
It is only at that stage that a complaint about unfair procedure may be raised. It is the
existence of a substantive right that attracts a fair procedure. I deal hereinafter with the
relevant provisions of PAJA.
[20] Section 3 of PAJA deals with procedural ly fair administrative action. Subsections
1 and 2(a) provide thus:
“1. Administrative action which materially and adversely affects the rights or
legitimate expectations of any person must be procedurally fair.
2(a). A fair administrative procedure depends on the circumstances of each
case”
Subsection 2(b) of PA JA provide s clearly that a notice can be given to the person
referred to in subsection 1. A person referred to in subsection 1 is the one whose rights
(substantive rights) will be adversely affected by administrative action. P AJA becomes
available if there are substantive rights to be materially and adversel y affected by the
administrative action.
[21] The applicants do not disclose the nature of the right s they have in the property
which would entitle them to the electricity apply. I have indicated earlier in this
judgement that the applicants ’ papers are bereft of the nature and source of the right
that they seek to pro tect. In the light of the fact that they were, at some stage, sought to
be evicted by ECDC where the munici pality was also a party in those proceedings
manifests that they occupy those premises without the w ill of the ECDC, the owner
thereof . In the absence of proved legal right, PAJA cannot come into their rescue. A
notice to them was not necessary.
[22] The applicants appropriate to themselves the word of a user and a consumer of
the electricity supply at the instance of the municipality. Because they call themselves
users and consumers of the electricity supply, they seek refuge to the municipal By-Law
and the Policy referred to above . Their contention is that those two instruments afford
them the right to the given notice . This does not detract from the fact that a notice must
be given to a person whose rights are to be materially and adversely affected.
[23] Section 7(1) of the Municipality Policy provides thus:
“(1) A consumer who requires the provision of the municipal services must apply
for the service from the municipality .” For the applicants to have the right to the
electricity supply , they must avail themselves to these provisions . In fact the
municipality is on record to say that after the termination of the contract between
it and the ECDC, it called upon anyone who would want to be the consumer of
the electricity to make an application. I will t urn to this point later in this judgment .
[24] Section 8(1) of the Municipal ity Policy provides that “On application for the
provision of the municipal services the consumer deposit prescribed by the council shall
be paid.” A prescribed fee must be paid at the time of the application. In terms of section
7(9) of the Policy, the application for the provision of the services must be made 10 (ten)
days prior to the date on which the services required to be connected. A person is a
consumer entitled to the services if he or she complies with the provisions of the Policy
and any other law.
[25] There is no allegation that the applicants made the requisite application for them
to be consumers of municipalit y’s electri city supply . They are therefore not consumers
as contempl ated in the Policy. Even if it can be found that they are consumers, it is easy
to find that they are unlawful consumers , as they are not entitled to those services
without the requisite application having been made and approved.
[26] It is a basic princi ple of our law that a court can never l end its aid to the
enforcement of an illegal act . An act that has been performed in violation of a statutory
prohibition may, generally, have no legal consequences .3 In terms of the Policy,
municipal services like the electricity supply may only be provided once there is
agreement to do so . That agreement is entered when an application for municipal
services is made by the consumer and approved by the municipality . It will be an
enforcement of an illegal act if the municipality is compel led to provide services without
the satisfaction of a lawful requirement to successfully make an application for services.
It will be a contravention of the law to render the services to persons who will not pay for
municipal services as sections 9 and 10 of the Policy which require that those services
must be paid for by its consumers.
3 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC), 2014 (8) BCLR 869 (CC) para 77.
[27] This now takes me to another point. The applicants seem to deny that there was
an invitation made by the municipality for new consumers to enter into agreement for
services relating to electricity supply to be given . This dispute is neither here nor there
as the Policy does not provide for an invitation to be made to the prospective
consumers . An invitation to enter into new a greements is not provided for in the policy.
[28] However , even if it was provided for, the dispute of fact that would be created
would be the one that would lead to the dismissal of the application . I have found that
the application papers do not make out a case for they do not establish applicants ’ right
to rec eive electricity supply from the municipality . It is impermissible to apply for the
referral to oral evidence or trial where the applicants themselves do not make out a
clear case, but leave the case ambiguous, uncertain or fail to make out a cause of
action4. On the same authority of “Mamadi” the litigants are es chewed from applying for
a referral to oral evidence when he fails to convince a court that it's application can
prevail by application of the Plascon -Evans Rule . Litigants should, as a general rule,
apply for a referral to oral eviden ce or trial , where warranted, as soon as the affidavits
have been exchanged5.
[29] In conclusion , the municipality was not exercising a public power when it was
giving effect to the cancellation of the contract between it and the E CDC. In fact, the
termination of the electricity supply was co nsequential upon lawful termination of the
contract. When the municipality was terminating the electricity supply it was doing so in
terms of the contract it had with the ECDC . It was not at all performing a public duty, it
was exercising a contractual right founded on the agreement between it and the
ECDC6.
4 Mamadi and Another v Premier of Limpopo Province and Others 2024 (1) SA 1 (CC) para 45.
5 Law Society of the Northen Provinces v Megami 2010 (1) SA 181 (SCA); 2010 (1) All SA 315 (SCA)
para 23.
6 Metropolitan Council v Metro Inspection Services Western Cape CC and Others 2001 (3) SA 1013
(SCA); 2001 (10) BCLR 1026 A para 18.
[30] In the circumstances the applicant's explanation must fail. I see no reason why
costs should not follow the result.
[31] In the result the following order shall issue:
30.1 The application is dismissed with costs.
_________________________________
AS ZONO
JUDGE OF THE HIGH COURT (Acting)
Appearances
For the Applicant s: Adv Matotie
Instructed by: SR Mhlawuli & Associates
No. 58 Wesley Street
MTHATHA
Contact: 078 7233 799
For the 1st & 2nd Respondents: Adv Bodlani SC
Instructed by: No. 26 Victoria Street & Madeira Street
1st Floor Steve Motors Building
MTHATHA
Contact: 083 535 7960
Date heard 29 May 2025
Date delivered 13 June 2025