IN THE HIGH COURT OF SOUTH AFRICA
FREE ST ATE DIVISION, BLOEMFONTEIN
Reportable / Not reportable
Case number: 6116/2024
In the matter between:
JUSTICE BENJAMIN SEGOMOTSO MOLOABI APPLICANT
and
ESKOM HOLDINGS SOC LIMITED RESPONDENT
Neutral citation: Justice Benjamin Segomotso Moloabi v Eskom Holdings Soc Limited
(6116/2024) [2025] ZAFSHC 194 (25 June 2025)
Coram: Chesiwe J
Heard: 20 March 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 13h00 on 25 June 2025.
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Summary: Application for confirmation of a Rule Nisi -Application premised upon
mandement van spo!ie -statutory electricity rights -contractual use of electricity -whether
spoliation find application -Spoliation order in terms of quasi-possessio.
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ORDER
The Rule Nisi is confirmed with costs on scale B.
JUDGMENT
Chesiwe J
[1] The application is a confirmation of a Rule Nisi in terms of an urgent application that
was before Court on 1 November 2024. Applicant sought the urgent restoration of electricity
supply to his business premises at 3087 Post Office Complex, Selosesha , Thaba Nchu, Free
State Province (hereafter referred to as the property). This application is premised on
mandament van spo/ie.
[2] In terms of the Rule Nisi, the Court granted urgency and the order with regard to the
relief sought by the Applicant.
[3] The matter was then postponed to the 28th November 2024 whereupon parties
agreed to postpone and extend the Rule Nisi to 27 February 2025. Respondent was to file
opposing affidavit on or before 26 January 2025 and the Applicant to file a replying affidavit
on or before 13th February 2025. On 27th February 2025 the Rule Nisi was postponed and
extended to 20 March 2025, which matter is now before this Court. And the issue for
determination is whether the Rule Nisi be confirmed or discharged .
Background
[4] The Applicant is the sole proprietor of two separate businesses that consists of a
takeaway and printing shop. The Respondent (Eskom) supplies Applicant with electricity.
The Applicant receives invoices from Eskom on a monthly basis by way of email. The
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invoices are attached as annexures "FA1" and "FA2", which balances amount to R690, 75
(six hundred ninety rand seventy-five cents) and R607, 91 (six hundred seven rand ninety
one cents).
[5] During February/March 2023, Respondent installed a new electricity meter. On 17th
March 2023 the Applicant received a tax invoice of R21 009, 71 (twenty-one thousand nine
rand seventy-one cents) 1. After receipt of this invoice, the Applicant attended to the
Respondent's offices to enquire about the invoice.2
[6] Applicant was informed that the Respondent works on estimations from July 2021
until the new meter was to be installed in March 2023. According to the Respondent , the
charges from July 2021 to March 2023 were incorrect and same was corrected in March
2023.3 On 20 March 2024, Applicant then received another tax invoice of an amount of
R148,995.70 (one hundred forty-eight nine hundred ninety-five rand seventy cents). 4
[7] The Applicant attended to the Respondent 's offices in Bloemfontein on 23 May 2024
for an explanation for the increased tax invoice of 20 March 2024, but did not get a proper
explanation and this matter has not been finalized however, Respondent proceeded to
terminate the electricity supply to the property on 25 October 2024. Applicant consulted with
his attorneys of record. Correspondence was sent by the Applicant 's Attorney wherein
Eskom officials responded , but the dispute was not resolved.
[8] On 11 October 2024 Applicant received a short message service (hereafter referred
to as SMS) 5 that, he must submit to the Respondent , the meter readings. A second SMS
followed on 14 October that the Applicant must pay R197,585 23 (one hundred ninety-seven
five hundred eighty-five rand twenty-three cents), to avoid disconnection . Respondent
proceeded to disconnect the electricity to the property whereupon Applicant proceeded to
launch the urgent application .
1 Annexure 'FA3'.
2 Record, Founding Affidavit, page 12 at par 22.1.
3 Record, Founding Affidavit, page 12 at par 22.2.
4 Annexure 'FAS'.
5 Record, Founding Affidavit, page 23 at para 40; (Annexure 'FA13' to the Founding Affidavit, page 58).
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Submissions
[9] Counsel on behalf of the Applicant, Advocate Groenewald , submitted that Applicant
was in possession of a right to electricity supply to the property, though it was quasi
possessio when Applicant was unlawfully deprived of possession. Further that, the SMSs
were not a proper notice as it was insufficient, had no date, place, time or determination as
to when the electricity would be disconnected. Counsel further submitted that Applicant is
disputing the invoices of the Respondent as well as the incorrect billing. Thus, the dispute
between the parties ought to be resolved and the Rule Nisi be confirmed and that Applicant
has met the requirements of spoliation .
(1 O] Counsel on behalf of the Respondent , submitted in oral argument that the Applicant
has a contractual relationship of buying and the Respondent to supply electricity. Further
that, Applicant knew he was liable to pay for the electricity , and Applicant cannot consume
electricity for free. Counsel submitted that the notices sent via SMS, were sufficient as these
were sent 14 days before the electricity was disconnected. Moreover, Counsel submitted
that, the only remedy that the Respondent had particularly if a client does not pay, is to
discontinue the service. Counsel indicates that Applicant failed to make payment
arrangements and therefore, Applicant cannot claim unlawful dispossession as the
requirements of mandatement van spolie were not met, and the Rule Nisi ought to be
discharged.
Applicable Legal Principles for the mandament van spolie
(11] The applicable principle is that mandament van spolie has three characteristics. It
has a possessory remedy. It is an extraordinary remedy and robust remedy and a speedy
remedy. It further protects the possessor from an unlawful undisturbed possession.
(12] Counsel on behalf of the Applicant submitted in the heads of argument that a
consumer's rights to the supply of electricity is so incidental and so closely connected to his
or her rights to the occupation of a particular business premises it could be considered as
the subject of quasi-possesio and therefore. spoliation of such quasi-possesio constitutes
an act of spoliation in relation to the respective premises.
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[13) Counsel on behalf of the Respondent submitted in the heads of argument that
Applicant is an end user who purchases electricity for their own use and pays the respondent
for the supply of such service and this constitutes a contractual relationship between the
parties. A further argument advanced on behalf of the Respondent , is the relief sought by
the Applicant as per the founding affidavit which is solely based on the mandament van
spolie and not seeking a relief based on the provisions of PAJA. 6
[14) The issue for determination is the question of a remedy being available to the
Applicant based solely on the mandament van spolie.
[15] Based on a contractual right such as the right of access to electricity under a contract,
a legal protection of this right premised by quasi-possesio is protected by the mandement
van spo/ie however, which remedy is a remedy against unlawful deprevation .
[16] In Scoop Industries (Pty) Ltd v Langlaagte Estate and GM Co 7, the Court said the
following:
'Two factors are required to find a claim for an order for the restitution of possession on an allegation
of spoliation . The first is that the applicant was in possession and the second, that he has been
wrongfully deprived of that possession and against his wish. It has been laid down that there must
be clear proof of possession and of the illicit deprivation before an order should be granted ... It must
be shown that the applicant had had free and undisturbed possession ."
[17] Thus, Applicant bears the onus to prove that he was in possession of the premises
to which the electricity is supplied and that Respondent deprived him of possession
wrongfully and unlawfully.
[18] Applicant in the founding affidavit contends that he has been in possession of the
property from which the business is run since 2014. Further that the Respondent since then,
has been supplying electricity , whereupon Applicant receives the invoice on a monthly basis
and has been paying the invoices. It is only after receipt of the invoice of R 148,995, and
Eskom disconnecting the electricity , inquiries were made by the Applicant. According to the
6 Respondent's Heads of Argument, page 6 at paragraph 19.
7 1948 (1) SA 91 (W) at 98.
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Applicant , he was in a peaceful and undisturbed possession of the property when he was
unlawfully deprived of possession by Eskom.
[19] The Respondent in its answering affidavit contends that s 21 (5) of the Electricity
Regulation Act 4 of 2006 "empowers the Respondent to disconnect the electricity supply by
NRS047, and it stipulates that a client must be given 14 days' notice before such
disconnection ." 8
[20] S 21 (5) of the Electricity Regulation Act 4 of 2006 9, states as follows:
21. Powers and duties of licensee
(5) A licensee may not reduce or terminate the supply of electricity to a customer, unless
(a) the customer is insolvent;
(b) the customer has failed to honour, or refuses to enter into, an agreement for the supply of
electricity; or
(c) the customer has contravened the payment conditions of that licensee.
[21] Respondent in its answering affidavits, contends that Applicant has been requested
on numerous occasions to conclude an Electricity Supply Agreement (ESA), but failed to do
so and this does not absolve the Applicant from liability.10
[22] Respondent further states that Applicant received electronic communication
informing him of the pending disconnection as the invoices had not been paid and that the
relationship between the Applicant and the Respondent is contractual and that mandamus
cannot be sustainable .11 Moreover , an explanation to the Applicant was given about the
increase of the invoices, which stem from the corrected previous invoices.
8 Pages 66 to 67 at paragraph 11.
9 Updated to 17 January 2023; GN 2875 in G. 47757 of 15 December 2022 (as corrected by GN 2935 in G. 47877 of
17 January 2023).
10 Respondent's Answering Affidavit, page 72.
11 Respondent's Answering Affidavit, page 70 at paragraph 30.
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[23] In Eskom v Masinda 12, the court held that quasi possession of a right, specifically
electricity supply does not enjoy protection under the mandament if the right is sourced in
contract. Further stated by the Court was that, "in the context of a disconnection of the
supply of such a service, spoliation should be refused where the right to receive it is purely
personal in nature" as per consideration in the Zulu v Minister of Works, KwaZulu, & Others
13 judgment.
[24) In Makeshift 1190 (Pty) Ltd v Cilliers 14, the court decided that mandament is available
for restoring the quasi possession of electricity supply that is driven from a contract. The
Court, notes in Masinda Supra a confirmation that "certain rights, although incorporeal , may
be the subject of quasi-possession for purposes of spoliatory relief. Although in spoliation
proceedings a court is not concerned with whether or not the right has been established , the
facts must show that prior to the alleged spoliation the claimant enjoyed undisturbed quasi
possession of the alleged right, in the sense of performing acts demonstrating the exercise
thereof."
[25] A distinction therefore needs to be made on whether the right to the supply of
electricity by the Respondent was of pure personal nature or incorporeal property capable
of quasi-possession and worthy of protection .
[26] In First Rand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others 15,
Malan AJA held as follows:
"The mandement van spolie does not have a 'catch-all function' to protect the quasi possessio of all
kinds of rights irrespective of their nature. In cases such as where a purported servitude is concerned
the mandement is obviously the appropriate remedy, but not where contractual rights are in
dispute or specific performance of contractual obligations is claimed: its purpose is the protection
of quasi possessio of certain rights. It follows that the nature of the professed right, even if it need
not be proved, must be determined or the right characterized to establish whether its quasi
12 2019 (5) SA 386 (SCA).
13 1992 (1) SA 181 (DC) at 186E-190G.
14 2020 (5) SA S38 (WCC) (25 May 2020).
15 (373/06) [2006] ZASCA 99; [2006] SCA 98 (RSA); 2008 (2) SA 503 (SCA); [2007] 1 All SA 436 (SCA) (9 September
2006).
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possessio is deserving of protection by the mandement .... The right held in quasi possessio must
be a 'gebruiksreg ' or an incident of the possession or control of the property."
(27] Although Respondent avers that a right of supply of electricity ought to flow from a
contract, I pause to mention that as it appears from the papers, no contract exists 16 between
the parties therefore, consideration of no contractual rights being in dispute or specific
performance of contractual obligations being claimed is made.
(28] Since 2014, Applicant has held a professed right to the use of the property for
business purposes . And this case ought to be premised on purported servitude and I am of
the view that mandement is the appropriate remedy. Gebruiksreg is held in quasi possessio
arising as an incident of possession of corporeal property.
(29] Respondent has been supplying electricity to the property from which Applicant runs
a business. A distinction is therefore drawn that, this is not a personal right, but a right
bestowed by servitude and that spoliation finds application.
(30] In concurring with Rogers and Cloete JJ in Makeshift Supra, quasi possession of
electricity supply was indeed held, despite in that matter having been contractual in nature,
however still enjoying possessed protection . The court ruled that electricity supply used on
land is an incident of possession and therefore enjoys possessory protection.
[31] Indeed, this, electricity is a basic right and it is one of the cardinal functions of the
Respondent to supply it to the consumer , such as the Applicant. At the center of it all,
nowhere in the papers does it appear that Applicant is refusing to pay. Applicant attempted
to resolve the dispute of the invoices, but was unsuccessful. Moreover , Applicant went as
far as to make arrangements to pay.
[32] Applicant approached the officials of Eskom to inquire about the increase of the
invoices, but with not much assistance. There is no doubt that the service ought to be paid
for, otherwise Respondent will find itself in financial trouble. However, where an end user
wants clarity on his or her account, such information should be provided. And where an end
16 Respondent's Answering Affidavit, page 72 at paragraph 40.
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user wishes to make arrangements to pay, he or she should not be assisted. Applicant
offered to pay R40 000, 00 (forty thousand rand) towards the account in order for the
electricity to be reconnected, however this offer was denied.
The Notices
[33] Respondent contents that electronic notices were sent to the Applicant on 11 October
2024 and 14 October 2024. The Short Message Service (hereafter referred to as the SMS)
of 11 October 2024 17 was as follows:
" ... To ensure accurate billing you are requested to submit your Eskom meter reading through our
self-service channels .... "
[34] Applicant indicated that he was not able to open the electricity meter, nor could he
send the readings. In the above SMS, Respondent indicated that "self-readings should only
be done when it is safe to do so". Respondent could therefore not have expected the
Applicant to send the meter readings if such warning is made.
[35] The SMS of a 14 October 2024 18 is as follows:
" ... Please remit an amount of 197,585 .23 to avoid disconnection. NB, recon fee R1100 .... "
[36] Applicant disputes that the above were adequate notices. Respondent did not
indicate as to the method to be used when sending notice nor did it indicate in its answering
affidavit as to how notices must be sent, except that the notices were given electronically ,
and it was within 14 days. I am not satisfied that this was a proper notice of termination given
to the Applicant. Respondent failed to prove that the SMS notices were sent as per the
agreement or in terms of its own regulations , or in terms of the Electricity Regulations 19.
17 Amended Index, annexure "FA13", page 58.
18 Amended Index, annexure "FA14", page 59.
19 Act 4 of 2006.
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[37) Applicant was therefore not given proper notice. The SMSs sent were inadequate
notice. Applicant was entitled to proper notice before disconnection of the electricity was
done.
[38) Furthermore, the dispute involving Applicant and Respondent regarding the billing
also needs to be resolved. It was submitted that the Applicant had been paying the current
invoice, except the invoices that were in dispute. The duty to pay is indeed mutual and which
Applicant has honored in terms of the prior invoices before the new meter was installed in
2023.
Conclusion
[39) I am satisfied that the Applicant has shown that he was quasi possessio to which
electricity was supplied and was indeed deprived of possession unlawfully, and has
therefore met the requirements of mandament and ought to be granted the relief sought.
[40] The order requiring Respondent to restore the supply of electricity is, in my view, an
order which can properly be made as spoliatory relief. To the extent that the order by
necessary implication requires of the Respondent to re-establish its supply contract with the
Applicant , and there is nothing to suggest that Applicant is unwilling to do so.
[41] The issue of the notices was indeed inadequate, and the Respondent ought to have
proven that the method of issuing the notices was in terms of the Electricity Regulations Act.
Costs
[42) The general rule of costs applies that, costs follow the event. Applicant attempted to
resolve the issue without approaching court. Applicant has been attempting to resolve the
dispute of the invoices with the Respondent since March 2023. Applicant went to the offices
of the Respondent , but was not assisted. Applicant 's legal representatives sent
communication to the Respondent with little success. Had the Respondent resolved the
issue, Applicant would not have approached court on an urgent basis. Thus, the Respondent
ought to be ordered to pay the costs of the application .
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[43] I considered attorney client costs. However, there is no particular ground that qualifies
a punitive cost order. Respondent was entitled to oppose the matter. Respondent is an entity
that deals with public funds and cannot be burdened with a punitive cost order.
Order
[44] In the result, the following order is made:
The Rule Nisi is confirmed with costs on scale B.
CHESIWE J
Appearances
On behalf of the Plaintiff:
Instructed by:
On behalf of the Defendant:
Instructed by: W J Groenewald
Bezuidenhouts Inc.
TM Ngubeni
Raynardt & Associates 13