REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 2025 -096450
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 2/7/2025
SIGNATURE:
In the matter between :
ST BENEDICT’S ABBEY NPO APPLICANT
And
ESKOM HOLDINGS SOC LIMITED RESPONDENT
JUDGMENT
KGANYAGO J
[1] The applicant is a non -profit organization (church) established during 1904 as a
monastery where monks and nuns live. Currently the applicant’s property is a
host (landlord) to two section 14 public schools on private land schools which
are Subiaco Pr imary and St Bede’s High School. There are also live -in
boarders (learners) at the property who are attending at the section 14
schools.
[2] The applicant for many years has been the consumer of the electricity supplied
by the respondent. The responden t had terminated the electricity supply to the
applicant’s property on 17th June 2025 after issuing a 14 days ’ notice which
was served electronically on the applicant’s attorneys of record on 30th May
2025. The termination was precipitated by a dispute regarding the billing of
the applicant’s account in which the respondent alleges that the applicant
owes it an amount of R3 467 372-17 being outstanding arrears and current
outstanding bills. The app licant disputes the correctness of the alleged
outstanding amount.
[3] According to the applicant, the main trust of the dispute between it and the
respondent emanates from the billing cycle of 9th March 2022 in which the
respondent without any prior n otice or explanation levied an amount of
R952 540-12 on the applicant’s account. Currently the outstanding amount
had risen to R2 264 298-94. The applicant avers that from inception, it has
always admitted to owing the respondent the amount which represent the
current bills to the exclusion of the amount levied on 9th March 2022 billing
cycle together with all interest and charges th at had accumulated to the
amount.
[4] The applicant dispute s the correctness of the alleged outstanding amount on
two gro unds. The first ground is that the alleged corrections are factually
incorrect as they are not supported by any evidence that at any given period
from 2018 to March 2022 there was actual incorrect meter readings taken by
the respondent that justified the c orrections. Secondly, notwithstanding the
aforegoing, the corrected or reconciled amount of R952 540-12 together with
the interest and charges levied, had prescribed in terms of the Prescription
Act 68 of 1969.
[5] The applicant’s current attorneys of record ha ve from 8th November 2023 been
engag ing the respondent in trying to resolve the matter amicably but without
success. Throughout the engagement the respondent had maintained that the
amount was due without providing any factual information on how the said
corrections were computed, but rather demanded payment and threatened to
terminate the electricity supply. Seeing that a dispute was looming over the
account, the applicant took a decision to withhold payments to the respondent
over its current bi lls. On 23rd December 2023 the applicant through its
attorneys of record notified the respondent that all payments to all its current
bills will be stopped until the issue was resolved.
[6] For the duration of 2024 the respondent did not communicate with the
applicant despite repeated request by the applicant for further engagement.
The parties held a meeting on 17th and 24th March 2025 where again the
respondent was unable to provide a plausible explanation for the imposition of
the 9th March 2022 bill, except to say that the corrections were as a result of
the respondent taking incorrect meter readings. On 31st March 2025 the
applicant notified the respondent that it was lodging a formal complaint with
NERSA for mediation or arbitration a s the applicant was of the view that the
dispute could no longer be resolved amongst the parties.
[7] As the applicant was not disputing its current bills, it requested a written
undertaking from the respondent that should the applicant enter into a
payment arrangement or make payments towards the current billed amounts,
same act shall not disentitle the applicant from relying on a plea that the large
portion of the debt of R2 264 298-94 has prescribed. The applicant submit s
that the respondent through their internal communication which was
mistakenly sent to it (applicant) shows that the respondent concede that the
debt had prescribed. Despite that concession, the respondent had failed to
give the applicant an undertaking, but instead issued the applica nt with a 24
hours ’ notice of termination of the electricity supply if an amount of
R1 203 073-26 was not paid.
[8] Two days later the respondent sent its technician to the applicant’s property to
disconnect the electricity supply, but the applicant’s attorney was able to stop
them. Further attempts were made to resolve the matter which proved to be a
futile exercise. The Department of Education as a tenant was also involved as
it is also liable to the admitted debt owed to the respondent. O n 30th May 2025
the respondent issued another notice giving the applicant 14 days to make
payment failing which the electricity supply was going to be terminated. On
17th June 2025 the respondent disconnected the electricity supply on the
applicant’s property without further communication.
[9] That led to the applicant instituting an urgent application in which it is seeking
orders that (i) the respondent be interdict ed and restrained from disconnecting
or terminating the electricity supply to the applicant’s property pending the
processing, investigation and finalization of the complaint referred to the
National Energy Regulator of South Africa (NERSA) in terms of sec tion 30 (1)
(b) of the Electricity Regulation Act, 4 of 2006 by the applicant; (ii) and that the
respondent be directed to reconnect the electricity supply to the applicant’s
property within 24 hours of service of the court order.
[10] The applicant s ubmit that it has lodged a complaint with NERSA on 17th June
2025. The respondent had rushed to terminate the electricity supply on its
property in the midst of the interdepartmental talks to resolve the dispute as
well as on the processing and investigati on of the applicant’s complaint by
NERSA. Further that the respondent had failed to notify the Department of
Education of its intent to terminate the electricity supply to the applicant’s
property, and therefore, the decision to terminate was taken prematu rely. That
if the respondent acts reasonably and prudently, the debt admitted in the
amount of R1 203 073.26 may be recovered from the applicant and the
Department of Education through following the proper procedures set out in
the Intergovernmental Relati ons Framework Act 13 of 2005.
[11] The respondent is opposing the applicant’s application. In its answering
affidavit the respondent had s ubmitted that the applicant has been getting free
electricity supply since December 2023 after it stopped paying the accounts.
The respondent has been demanding and threatening for months to cut the
supply of electricity to the applicant’s property because of its failure to pay the
respondent, and the applicant did nothing about the situation. On 13th and 19th
May 2025 the applicant was served with termination notices. In those notices
the applicant was advised to make arrangement to pay the respondent, failing
which the supply of electricity would be terminated. The applicant did nothing
and the electricity supply on the applicant’s property was terminated on 17th
June 2025.
[12] On 23rd February 2023 the applicant had signed an acknowledgement of debt
in terms of which it acknowledged being indebted to the respondent in the
sum of R1 413 105.89. Included in the amount of the acknowledgement of
debt was the amount of R952 540.12 which was billed to the applicant’s
account on 9th March 2022. The applicant has fail ed to disclose the contents
of this acknowledgement of debt in its founding affidavit despite having
knowledge of it. The applicant had no excuse for not paying its current
account which it incurred from February 2023 to May 2025 of which the
outstanding a mount is R1 203 073.26. The applicant has admitted that it had
to pay its current account.
[13] The applicant’s late attempt to refer the dispute to NERSA does not help it as
there is no dispute about the rebilled amount. After the error which caused t he
respondent to incorrectly charge the applicant for its electricity supply was
discovered back in 2022, the error was explained and accepted by the
applicant. That led to the parties concluding an acknowledgement of debt and
the payment agreement to sett le the dispute which allowed the applicant to
settle the debt in instalments over a period of 36 months. The applicant had
failed to honour its obligations in terms of the acknowledgement of debt
agreement and, at the same time, stopped paying its current account. The
complaint which the applicant had lodged with NERSA after the electricity was
terminated relates to the rebilled account and not the current account.
[14] The respondent has submitted that on 31st March 2025 the applicant through
its attorneys wrote a letter notifying the respondent that it was referring a
complaint against the respondent to NERSA as it dispute s allegations against
corrections/reconciliation of its billing account undertaken unilat erally by the
respondent. In that letter the applicant stated that it remains committed to
paying all its current utility bills presented to it whilst the matter is pending
before NERSA and was requesting an undertaking from the respondent that
any payment made by the applicant towards its current account should not be
construed as a waiver to the validity of the historic debt, i.e precluding the
applicant to later raise a plea of prescription.
[15] The respondent per its letter dated 30th May 2025 noti fied the applicant that it
had held discussion with the Department of Education regarding payment of
the outstanding debt within 14 days. Further that whilst waiting for the dispute
to be resolved, the applicant is required to service its monthly consumpti on
emanating from the bills that were issued after the capital amount in dispute,
which amounted to R1 203 073.26. The applicant was warned that should it
fail to make payment, the electricity supply will be disconnected after 14 days,
and the account may be terminated. The applicant was already given the
spreadsheet of the total outstanding amount per the respondent’s letter dated
19th May 2025. The respondent avers that the applicant did not attempt to pay
the current account and that is what led to it la wfully terminating the electricity
supply to the applicant’s property on 17th June 2025.
[16] The applicant did not file a replying affidavit despite been warned of the
consequences of its failure to do so taking into consideration what the
respondent h as raised in its answering affidavit. Counsel for the respondent
was also willing to give the applicant an opportunity to file a replying affidavit
for fairness purposes, but counsel for the applicant insisted that it was not
necessary.
[17] The applicant is seeking an interim interdict against the respondent pending
the processing, investigation and finalisation of the complaint referred to
NERSA by the applicant. The question which this court must determine is
whether the applicant h as satisfied the requirements for granting of an interim
interdict. The granting of an interim relief pending action is within the
discretion of the court to either grant or withhold. In Knox D’Arcy Ltd and
Others v Jamieson and Others1 EM Grosskpf JA sai d:
“That a Court has a discretion whether or not to grant a temporary interdict
has often been said…Thus, in Messina (Transvaal) Development Co Ltd v
South African Railways and Harbours 1929 AD 195 at 215 -16 Curlewis JA
said:
‘In an a pplication for an interim interdict pending action, the Court has a large
discretion in granting or withholding an interdict. Where there is merely a
possibility, not a practical certainty, of interference or injury, as in the present
case, the Court will be reluctant to grant an interdict, especially if the party
seeking the interdict will have other means of redress and will not suffer
irreparable damage. And the Court is entitled to and must regard the possible
consequences, both to the applicant and to the respondent, which will ensue if
an interdict be granted or withheld.’”
[18] The requirements for the granting of an interim interdict have been restated in
a number of decided cases and they (i) a prima facie right that might be open
to doubt; (ii) reasonable apprehension of irreparable and imminent harm to
the right if the interdict is not granted; (iii) the balance of convenience
favourable to the grant of the interdict; and (iv) the absence of any other
adequate remedy.
[19] The whole of the ap plicant’s application is based on the complaint that it had
referred to NERSA regarding the historical debt that it is disputing. With
regard to prima fac ie right, the applicant in its founding affidavit has submitted
that the decision to terminate the ele ctricity supply was taken prematurely and
without notice to all whom it may have prejudicial effect on, including the
Department of Education or the School Governing Body of both schools.
Further that the pending dispute before NERSA would mitigate against the
discontinuation of the electricity supply to the applicant.
1 1996 (4) SA 348 (A) at 360G -J
[20] It was the applicant who unilaterally took a decision to stop paying its current
bills during December 2023. When the applicant stopped paying its current
bills it was not as a result that it was unable to pay those bills, but was for fear
that the payment it was making might be allocated by the respondent to its
historical debt which it is disputing. That might have resulted in the applicant
been unable to raise a plea of prescription to part of the historical debt as the
payment which it would have made, might be viewed as having interrupted
prescription. The applicant in their letter dated 31st March 2025 notified the
respondent that it was referring a complaint to NERSA in relation to the
historical debt only, and that it remains committed to paying all its current bills,
and was seeking an undertaking from the respondent not to allocate any
payment it will be making to the historical debt pending the finalisation of the
complaint referred to NERSA.
[21] The respondent had acceded to the applicant’s demand per its letter dated
30th May 2025, in which it advised the applicant that whilst waiting for the
dispute to be resolved, the applicant must pay the bills is sued after the capital
amount in dispute. By then the arrears amounted to R1 203 073.26, and the
threat to terminate the electricity supply in case of failure to pay was in
relation to this amount and not the historical debt. When the applicant
instituted the urgent application, it was in possession of this letter which it had
attached to its founding affidavit as an annexure. From the contents of this
letter, it is clear that the termination of the electricity supply on 17th June 2025
was in relation to th e arrears which amounted to R1 203 073.26, which the
applicant is not disputing. This amount has been separated from the historical
debt which the applicant has referred to NERSA , which was as a result of an
undertaking which the applicant has been seeking . Therefore, the termination
of the electricity supply by the applicant has got nothing to do with the
historical debt, but was based on debt which the applicant is not disputing.
[22] In relation to the alleged failure by the respondent to notify the Department of
Education of the imminent termination of the electricity supply. The deponent
of the respondent’s answering affidavit has stated that he had held
discussions with Yvonne Mathabatha, the CFO of the Department of
Education Limpopo Province wherein the Department was made aware of the
respondent’s intention to discontinue the supply of the electricity supply to the
property because of the applicant’s failure to pay the respondent . The
applicant despite been warned of the consequences of failure to file a replying
affidavit opted not to file it. In National Credit Regulator v Lewis Stores (Pty)
Ltd and Another2 Eksteen AJA referred with approval the judgment of
Swissborough Diamond Mines (Pty) Ltd and Others v Government of the RSA
1999 (2) SA 279 (T) where Joffe J said:
‘It is trite that in motion proceedings the affidavits serve not only to place
evidence before the Court but also to define the issue between the parties. In
so doing the issues between the parties are ident ified. This is not only for the
benefit of the Court but also, and primarily, for the parties. The parties must
know the case that must be met and in respect of which they must adduce
evidence in the affidavits’.
[23] The version of the respondent that it had notified the Department of Education
of the imminent termination of the electricity supply remain unchallenged.
Even if the appl icant was to attempt to reply on this issue, it was going to be
difficult for it as it could not reply on behalf of the D epartment without been
mandated to do so. The Department is not a party to the proceedings before
court and the respondent did not raise any issue about that. Counsel for the
applicant was engaged on whether the Department did not have any direct
and subst antial interest in the matter at hand, and he said the Department did
not have. This court will confine itself to what the parties have placed before it.
Since the version of the respondent that it had notified the Department of the
imminent termination of the electricity supply was not challenged, that will be
end of the applicant’s case on that i ssue . By relying on referral of the
complaint to NERSA and failure to notify the tenant of the imminent
termination, the applicant had failed to establish a prima facie right.
2 [2019] ZASCA 190; 2020 (2) SA 390 (SCA) (13 December 2019) at para 29
[24] With regard to reasonable apprehension of irreparable and imminent harm, the
applicant has stated that it has been visited with insurmountable hardships to
its livelihoo d, commercial interest and normal way of life of its monks,
learners, permanent staff and property and equipment since the respondent
had terminated its electricity supply to its property. In City of Tshwane
Metropolitan Municipality v Afriforum3 Mogoeng CJ said:
“Irreparable harm implies that the effects or consequences cannot be
reversed or undone. Irreparable therefore highlights the irreversibility or
permanency of the injury or harm. That would mean that a favourable
outcome by the court re viewing allegedly objectionable conduct cannot make
an order that would effectively undo the harm that would ensue should the
order not be granted”.
[25] The applicant did not stop paying its current bills because it was unable to pay,
but as sign of a protest in trying to force the respondent to accede to its
demand to making an undertaking. From December 2023 the applicant was
aware of its monthly obligations to the respondent, and even if it was not
paying it should have made provision for that in cas e the dispute was
resolved. The respondent had given an undertaking before the applicant
instituted the current urgent application, and the termination was not based on
the historical debt, but the current debt. Since the applicant had already
terminated the electricity s upply by the time applicant instituted its urgent
application , what the applicant was complaining about was no longer
imminent, but ongoing. It is therefore upon the applicant to show the
reasonable apprehension of irreparable harm. Now that the respondent had
given an undertaking, the harm that the applicant is complaining about is
preventable as its demand for an undertaking has been met . The applicant
has failed to advance any reasons for its failure to pay the current debt . It will
therefore difficult t o determine what harm will the applicant suffer, if it is in a
position to pay , but simply elect not do so. The applicant has failed to
establish any reasonable apprehension of irreparable harm.
3 [2016] ZACC 19; 2016 (6) SA 279 (CC) (21 July 2016)
[26] On the balance of convenience, the applicant is still relying on the complaint it
had referred to NERSA. However, the dispute that has been referred to
NERSA has not resulted in the electricity supply been terminated on
applicant’s property , but it was as result of the debt which the applicant
allowed i t to accumulate from December 2023 when it stopped paying its bills
in protest of the respondent’s failure to give an undertaking. The applicant has
failed to advance any circumstances that render it unable to pay the arrears of
R1 203 073.00 which was sel f-created. The applicant is only stating that if the
respondent acts reasonably and prudent, the debt admitted may be recovered
from the applicant and the Department of Education through proper
procedures set out in the Intergovernmental Relations Framewor k Act 13 of
2005. However, the applicant is not stating why it was involving the
Department whilst the decision to stop paying was its unilateral decision. Now
that the respondent had made an undertaking, the applicant must pay its
arrears of R1 203 073.26 including current bills as these arrears were self -
created, but the applicant has failed to advance any reasons why it was not
paying. If the applicant is unable to pay the outstanding amount in one lump
sum, it can negotiate payment arrangements with the respondent. What the
applicant has placed before court as amounting to the balance of convenience
does not favour the granting of the interdict.
[27] With regard to absence of alternative remedy, the appli cant has stated that
there is no other conceivable way the applicant can achieve to restore the
supply of electricity to its premises other than through the mechanism of
mandatory interdict, as the relief it is seeking is a precautionary measure to
prevent irreparable harm befalling it whilst its complaint is being finalised by
NERSA. The applicant has failed to take into consideration that the
respondent has separated the debt in relation to the dispute referred to
NERSA and the debt it accumulated after December 2023 when the applicant
took a unilateral decision to stop paying its current bills. The alternative
remedy which the applicant is having is to resume payment of its current bills
since the respondent had given the process of referral of the compla int to
NERSA an opportunity to run its course. If the applicant is unable to clear its
debts at once, it can enter into pay ment arrangements with respondent since
it is not disputing the debt that has accumulated after the 23rd December
2025. The applicant has therefore failed to show the absence of any other
adequate remedy.
[28] Under the circumstances, the applicant has failed to satisfy the requirements
for an interim relief pending finalisation of the complaint that it had referred to
NERSA. With re gard to costs, the applicant is a church which is a non -profit
organisation . The dispute in this matter raises constitutional issues concerning
basic human rights to electricity, and therefore the principle in Biowatch Trust
v Registrar, Genetics Resources and Others4 is applicable. The appropriate
order will be to order each party to pay its own costs.
[29] In the result the following order is made:
29.1 The applicant’s application is dismissed.
29.2 Each party to pay its own costs.
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION , POLOKWANE
APPEARANCE S:
Counsel for the app licant : F Ndlovu
Instructed by : Ndlovu Attorneys
Counsel for the respondent : Adv PL Uys
Instructed by : GMI Attorne ys
4 2009 (6) SA 232 (CC)
Date heard : 27th June 2025
Delivered by uploading on court online : 2nd July 2025