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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 2640/2025
In the matter between:
SIYABULELA MAPOMPO Applicant
and
KING SABATA DALINDYEBO LOCAL 1st Respondent
MUNICIPALITY
THE MUNICIPAL MANAGER: NGAMELA PAKADE 2nd Respondent
KING SABATA DALINDYEBO LOCAL MUNICIPALITY
__________________________________________________________________
REASONS FOR THE URGENT INTERIM ORDER
__________________________________________________________________
RUSI J
[1] This matter served before me on 0 3 June 2025 as one of thirteen urgent
applications that were on the Motion Court roll of that day. In it the applicant sought, on
urgent basis, a rule nisi in which the respondents were called upon to show cause why
their conduct of terminating the electricity supply to the premises situated at No. […]
Q[...] Place, Mdlekeza in Ngangelizwe Township , Mthatha (the premises) , on 26 May
2025, should not be declared unlawful.
[2] As an adjunct to the rule nisi, the applicant sought an interim order directing the
respondents to restore the electricity supply to the premises forthwith and i nterdicting
them from charging the reconnection fee, and other ancillary relief.
[3] The respondents having opposed the application , the applicant sought an d was
granted an indulgence to file his replying affidavit by no later than 05 June 2025 at
noon. I directed that I would hear counsel 06 June 2025.
[4] When the matter served before me on 06 June 2025, it h ad become a fully
opposed application. An application was also made to strike out a portion of the
applicant’s founding affidavit, but that application was aband oned on the date of
hearing. Even though the application was fully opposed, I directed that I w ould only
determine the interim relief that the applicant sought.
[5] After reading the papers and documents filed of record and hearing submissions
by counsel, I granted the rule nisi sought by the applicant, returnable on 24 June 2025
with the adjunct of the aforementioned interim order. On 10 June 2025, a request was
made on behalf of the respondents, for written reasons for the order that I made. What
follows are those reasons.
The applicant’s case
[6] The applicant stated, in his founding papers, as the basis for bringing the
application on urgent basis , that the supply of electricity to the premises was unlawfully
terminated on 26 May 2025 by the respondent s without a pre -termination notice. He
further stated that in so doing, the first respondent breached its Credit Control and Debt
Collection Policy (the Policy) which provides, in clause 19, as follows:
19. Disconnection or discontinuation of supply
(1) An account rendered to a customer by the municipality in respect of rates or
municipal services, including the collection and disposal of refuse, shall be paid
by the due date.
(2) The municipality must perm it the customer to make representations prior to
the disconnection or discontinuation of the supply of electricity, unless -
(a) other users will be prejudiced;
(b) there is an emergency situation; or
(c) the customer has interfered with a limited, di sconnected or
discontinued electricity supply.
(3) If the customer fails to pay any account within a period of fourteen (14) days
after the expiry of the due date, then -
(a) without further notice, the municipality may disconnect or discontinue
the supply of electricity to the immovable property in question; and
(b) the chief financial officer or any duly authorized person may instruct
attorneys to recover the outstanding amounts.
(4) The disconnection or discontinuation of the supply of electricity s hall be
effected in the manner that is customarily used or by taking such reasonable and
lawful steps as may be necessary.
[7] As a background to the alleged unlawful termination, the applicant confirmed that
he owes the first respondent a debt in the sum of R44 034.65 for municipal rates and
services. A portion of this debt is in respect of an alleged illegal connection. On arrival at
the premises on 26 May 2025, he found a disconnect ion order dated 23 May 2025 and
the supply of electricity to the property had been terminated. In the disconnection order
he was informed of the first respondent’s decision to terminate the electricity supply to
the premises following his failure to pay th e arrears on his account. It further called him
upon to pay the debt together with the reconnection fee of R1 067.17.
[8] The applicant further stated that he has been making sporadic payments towards
his debt. He denied any illegal connection of electricity but stated that he has been
making payments towards the said illegal connection bill too under protest. He further
contended that th e first respondents ’ unlawful termination of the supply of electricity to
the premises was done despite his endeavours to settle his debt from his monthly
emoluments of R6 000.00.
[9] According to the applicant, he never received the pre -termination notice that
clause 19( 2) of the first respondent’s credit policy requires. For this reason, so the
applicant said, the termination of the electricity supply to the premises was unlawful. He
further alleged that this caused him and his family harm in the form of exposing them to
health and security risk; and also affected his two m inor children’s schooling at the
crucial time of examinations and it violated his right to be supplied with electricity . He
sought legal assistance on 27 May 2025, and that culminated in the present application.
[10] It was the applicant’s evidence further, that, if the harm that the termination of
electricity caused is allowed to continue, he would not obtain substantial redress at the
hearing of the matter in due course.
[11] In seeking the interim interdict, he alleged that the continued deprivation of his
right to electricity and the applicant’s disregard of the pre-termination notice requirement
grounded his entitlement to the relief he sought as the unlawful termination adversely
affects his liv elihood and the minor child’s schooling. He further alleged that the
continuous harm caused to him (as at the time of the application) could only be brought
continuous harm caused to him (as at the time of the application) could only be brought
to an end through this Court’s intervention, hence the application was his last resort to
protect his rights and those of the other occupants of the property.
[12] The applicant further stated that he has been in peaceful undisturbed enjoyment
and possession of the electricity until it was disconnected on 26 May 2025 and the
respondents resorted to self -help by unlawfully terminating the electricity suppl y to the
premises.
The respondents’ case
[13] In countering the applicant’s case, first on urgency, the respondent s stated that
the urgency with which the application was brought was self -created in that the dispute
regarding his municipal services account has continued for a period of two years.
[14] On the merits of the application, the respondents denied that the electricity
supply to the applicant’s residential property was unlawfully terminated, stating that he
was duly served with a pre -termination notice dated 29 April 2025 (the notice) in the
same way that the disconnection order that he received was served on him . While
admitting the payments that the applicant had previously made towards his debt , the
respondents simultaneously stated that the said debt resulted from the applicant’s act of
illegally connecting electricity after it was terminated.
[15] The respondent s further alleged that the disconnection order was issued and
served on the applicant upon the expiry of the 14-day period that he was afforded in the
notice to pay his debt or make representations or payment arrangements. In this regard,
the respondents filed an affidavit deposed to by Sive Kamba in which the latter
confirmed service of the pre -termination notice by placing it in the mailbox which was
‘just near the gate of the property.’ The respondents further contended that the hardship
that the applicant suffered was ‘an obvious’ consequence of not having electricity supply
and that he had an option of paying the debt owed in order to prevent that harm.
[16] According to the respondent s, the applicant failed to establish a prima facie right
that would entitle him to the interdict that he sought . It was the respondents’ evidence
that would entitle him to the interdict that he sought . It was the respondents’ evidence
further that th e applicant had alternative remedies at his disposal in the form of using
other sources of energy and paying the arrears on his account. The y went on to state
that the hardship that he complains of is not sufficient to ground the interdict that he
seeks, and that it was in fact ‘a reward that he earned for his failure over the years to
pay his debt .’ It further contended that the applicant’s failure to pay for services and
rates caused it financial harm.
[17] In his replying affidavit, the applic ant denied that he was served with the pre -
termination notice at all or in the manner alleged by the respondents, and annexed
photographs depicting the outer parameters of his residential property, which on the
face of them evinced that no mailbox is affixed to the property. He further denied that
there was no one at the property which, on the respondents’ version, necessitated the
placing of the notice in the said mailbox. Further according to the applicant, his cousin
Mr Lizweletu Matiya, was present on the property on 26 May 2025 , and no attempt was
made to hand the notice to him personally. A confirmatory affidavit deposed to by Mr
Lizweletu Matiya was filed together with the applicant’s replying affidavit , in which he
confirms what the applicant stated concerning him.
The parties’ submissions
[18] Mr Matotie who appeared for the applicant submitted , principally, that the
application is founded on the conduct of the municipality in terminating the electrici ty
supply without the requisite pre -termination notice, in violation of its Policy. He further
submitted that the application was further impelled by the adverse effects that the said
conduct had on the right of the applicant to be supplied with the electricity and his right
to be given notice before the adverse decision was taken.
[19] It was Mr Matotie’s submission further, that the applicant cannot be expected to
continuously suffer as a resul t of the first respondent’s unlawful conduct. On these
bases, so the submission went , the applicant has made out a case for this Court’s
bases, so the submission went , the applicant has made out a case for this Court’s
intervention on urgent basis, he has established a prima facie right, that he has no other
alternative relief in the circumstances, and that the balance of convenience favoured the
grant of the interdict sought.
[20] On behalf of the respondent s, Mr Madokwe persisted with the contention that no
case has been made for the urgency with which the application was brought as the
applicant had always known of his debt to the municipality . In his view the urgency was
self-created. With reference to the unreported decision o f Nepgen J dated July 1999 in
Sean Harold Rivers v The Municipality of the City of Port Elizabeth,1 Mr Madokwe
further persisted with the respondents ’ contention that the applicant has failed to
establish his entitlement to the interdict that he s ought as he had always had the option
of paying the debt owed to the municipality and thereby av ert the adverse effects that
he now complains of. In Rivers, the learned Judge dismissed the application that the
applicant had brought having found that there was no basis for the court’s intervention
on urgent basis and that the application was an abuse of court process.
[21] Mr Madokwe submitted that this application ought to s uffer the same fate. He
took the view that the first respondent is entitled to implement its Policy as it did in the
present case. He made an assertion that instead of making payments towards his debt
to the first respondent, the applicant employed two counsel to present his case in court.
This, Mr Madokwe said in circumstances where the respondents themselves were
represented by two counsel, and despite the fact that the Constitution of the land allows
a litigant the right to approach courts of law for appropriate relief and to have legal
representation in order to vindicate a right that i s alleged to have been infringed. I can
only add that this was a m isguided and rather unfortunate assertion by an officer of the
court.
[22] Issue was also taken by Mr Madokwe with the fact that the applicant demand ed
court.
[22] Issue was also taken by Mr Madokwe with the fact that the applicant demand ed
the restoration of the electricity supply by way of mandament van spolie. In this regard
1 Sean Harold Rivers v The Municipality of the City of Port Elizabeth, unreported decision dated 21 July
1999, under case number 1943/99 in the then South Eastern Cape Local Division (‘Rivers’).
he submitted that on the authority of Eskom Holdings SOC Limited v Masinda ,2 such a
cause of action is bad in law particularly since in the present case it is used to assert a
mere personal right having nothing to do with the incident of possession of property.
[23] In reply, Mr Matotie submitted that the applicant’s cause of action was not
founded on spoliation, but principally on the first respondent’s failure to give him 14
days’ notice before the termination of the electri city supply to the premises , together
with the adverse effects that the respondents’ conduct in so doing had on his rights.
[24] I must state that in his founding affidavit, the applicant pleaded, without more,
that he had previously been in peaceful and undisturbed possession of the electricity
until the termination of its supply on 26 May 2025. His cause of action as pleaded would
indeed not be sufficient to found the possessory relief of mandament van spolie to the
extent that he sought to assert a personal right flowing from the agreement he has with
the first respondent to be supplied with electricity.
[25] It is unsurprising that Mr Matotie made no submissions in relation to the
applicant’s cause of action based on it and only persisted with the applicant’s contention
that the supply of electricity to the premises was terminated without the requisite notice
resulting in his several other already mentioned rights being violated . Therefore, I need
not deal with the applicant’s attempt to assert his rights of possession in relation to the
supply of electricity to the premises by pleading , without more, the elements of
mandament van spolie.
The law
[26] First, on the issue of urg ency, it is trite that a determination of urgency in
application proceedings entails the question whether the applicant will be afforded
2 Eskom Holdings SOC Limited v Masinda (1225/2018) [2019] ZASCA 98; 2019 (5) SA 386 (SCA) (18
June 2019).
substantial redress at the hearing of the matter in due course.3 The facts of each case
determine whether the applicant will be afforded substantial redress at the hearing in
due course. Uniform Rule 6(12) provides:
“(a) In urgent applications the court or a judge may dispense with the forms and
service provided for in these Rules and may dispose of such matter at such time
and place and in such manner and in accordance with such procedure (which
shall as far as practicable be in terms of these Rules) as to it seems meet.
(b) In every affidavit or petition filed in support of any application under paragraph
(a) of this subrule, the applicant shall s et forth explicitly the circumstances which
he avers render the matter urgent and the reasons why he claims that he could
not be afforded substantial redress at a hearing in due course.”
[27] It has been held that where a matter is of such a nature that the court is required
to address allegations pertaining to irregularities and illegality within the realms of local,
provincial or national governance, but specific allegations relating to urgency are not
made in the founding affidavit, it remains open to a court to assess the facts placed
before it in the founding affidavit to determine whether or not the matter indeed is
urgent. The court has a wide discretion.4
[28] An applicant for an interim interdict must establish a prima facie right which he
seeks to protect by means of the interdict; actual injury or a well -grounded
apprehension of injury if the interdict sought is not granted; that there is no other
alternative appropriate relief available to him ; and that the balance of conveni ence
favours the granting of the interim relief. This is settled law. 5 While the applicant is not
required to prove that on a balance of proba bilities of undisputed facts he will suffer
3Luna Meubels Vevaarrdigers (Edms) BPK v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135
(W); East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011).
4 Oliver Reginald T ambo District Municipality v Independent Electoral Commission and Others
(1995/2021) [2021] ZAECMHC 31 (24 August 2021), para 11.
5 Setlogelo v Setlogelo 1914 AD 221 at 227; see also Dyalo v Mnquma Local Municipality and Another
(8490/2016) [2016] ZAECMHC 36.
harm, he must show that objectively his fear of harm is well grounded in the sense that
it is reasonable to apprehend that injury will result.6
[29] In Webster v Mitchell7 the following was said:
‘In the grant of a temporary interdict, apart from prejudice involved, the first
question for the Court … is whether, if interim protection is given, the applicant
could ever obtain the rights he seeks to protect. Prima facie that has to be
shown. The use of the phrase “prima facie established though open to some
doubt” indicates…that more is required than merely to look at the allegations of
the applicant, but something short of a weighing up of the probabilities of
conflicting versions is required. The proper manner of approach…is to take the
facts as set out by the applicant, together with any facts set out by the
respondent which the applicant cannot dispute, and to consider whether, having
regard to the inherent probabilities, the applicant could on those facts obtain final
relief…The facts set up in contradiction by the respondent should then be
considered. If serious doubt is thrown on the case of the applicant he could not
succeed in obtaining temporary relief…But if there is mere contradiction, or
unconvincing explanation, the matter should be left to trial and the right be
protected in the meanwhile, subject of course to the respective prejudice in the
grant or refusal of interim relief…the position of the respondent is prote cted
because…the test whether or not temporary relief is to be granted is the harm
which will be done…’
[30] More recently, i n Eskom Holdings SOC Ltd v Vaal River Development
Association (Pty) Ltd and Others 8, it was held that proof of the existence of a certain
6 Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd 1961 (2) SA 505 (W)
at 515; Minister of Law and Order and Others v Nordien and Another 1987 (2) 894 (AD) at 896F -I and all
authorities cited t herein; National Council of Societies for the Prevention of Cruelty to Animals v
Openshaw (462/07) [2008] ZASCA 78; [2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) (30 May 2008),
para 21.
7 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189-1190.
right though subject to some dou bt is sufficient to ground an interim interdict. I turn to
apply these principles to the facts of this application.
Discussion
[31] I must first deal with the issue of ur gency that the applicant contends for. The
adverse effects that the applicant has suffered as a result of the termination of the
electricity by the first respondent have not been disputed except for the respondents’
contention that they are not sufficient in and by themselves to ground urgency and the
interim relief that the applicant seeks and are in fact ‘his reward for failing to pay the
arrears on his account’ . Quite tellingly, this is the respondents’ debt collection strategy.
Subject to what I say below, the first is entitled to implement it.
[32] It is my finding , however, that the applicant made out a case for the hearing of
the application on urgent basis, for he could not be expec ted to continue suffering the
adverse effects of the first respondent’s alleged unlawful conduct while the matter
awaits determination at a hearing in due course.
[33] On the merits of the application, it is convenient to first dispose of Mr Madokwe’s
reliance on the unreported judgement of Nepgen J in Rivers as authority for the
contention that the applicant did not make out a case for the mandamus that he sought.
The facts of the present case are distinguishable from those in Rivers. Nepgen J said
the following regarding the complaint of the applicant in that case about the
respondent’s failure to give her the required pre-termination notice:
‘For the purposes of this judgment I am prepared to accept that the respondent
was not entitled to disconnect the electricity without giving the applicant 14 days’
notice. The position is, however, that the very relief that the applicant seeks in
this application could be obtained by him paying the amount of the arrears and
8 Eskom Hol dings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others (CCT 44/22)
[2022] ZACC 44; 2023 (5) BCLR 527 (CC); 2023 (4) SA 325 (CC) (23 December 2022) (‘Vaal River
Development’), at para 293.
thereby having his electricity supply reconnected. . . Nowhere in the papers is it
even suggested in any way that he is not able to pay the amount due or that he
would have any difficulty in doing so. . .’9
[34] In the present case , it is common cause between the parties that the applicant
has been making sporadic payments towards his debt to the first respondent, even
though according to the first respondent those payments were in respect of a debt that
resulted from an act of illegal connection of electricity that he previous committed.
Furthermore, the applicant has stated that due to limited resources (a salary of
R6 000.00 on his version), he is unable to settle the debt he owes to the first respondent
in full.
[35] Therefore, Mr Madokwe’s reliance on Rivers was misplaced. In any event, t he
Constitutional Court, in Vaal River Development,10 emphasized the importance of notice
and an opportunity to make representations , which it held must not be denied even
where it is thought the affected person cannot possibly have anything to say or that
whatever they may say is not likely to influence the decision. As already mentioned, the
applicant state d that the respondents’ conduct adversely affected his livelih ood, and
security. In so far as the applicant’s minor child’s schooling is concerned, it adversely
affected the right to education which the Constitution equally protects.
[36] Furthermore, the applicant assert ed his right to a fair procedure , viz, being
afforded notice before a decision is taken which adversely affects his rights . That he
has such a right was not disputed by the respondents. Their contention was that the
applicant was served with the said notice in the manner aforesaid. Since on th e face of
the notice there is no proof of its service, I have no reason to reject the applicant’s
version which suggests that as there is no mailbox affixed next to the property, and
there could not have been service of the notice in the manner alleged by the
respondents.
there could not have been service of the notice in the manner alleged by the
respondents.
9 Id, at para 20.
10 Id para 207.
[38] Proof of a right (as opposed to proof of the existence of a certain right)11, though
at the level of interim relief it may be “open to some doubt ”, is sufficient to ground an
interim interdict pending the determination of the final relief. This w as affirmed by the
Constitutional Court in Vaal River Development .12 The applicant established a prima
facie right which is worthy of preservation pending the finalization of the application. He
established that the respondents’ conduct caused him harm which had been continuing
at the time of the application and that he re asonably apprehended that such harm will
continue if not brought to an end by means of an interdict.
[39] Lastly, I did not understand the fi rst respondent’s case to be that the financial
hardship that is caused by the applicant’s non -payment of the amounts due for services
would, pending the final determination of the application, cause its total collapse. On the
respondents’ own version, the applicant had the option, inter alia, to make acceptable
arrangements for the payment of his debt for the supply of electricity to the premises to
be restored. Put another way, on its own showing, the first respondent did not
absolutely require full payment of the debt for it to restore the supply of electricity to the
premises. Therefore, the balance of convenience fa voured the grant of the interim
interdict pending a full ventilation of the issues at the hearing in due course.
[40] The applicant’s version , which the respondents did not seriously dispute, was
that in as much as he has been making sporadic payments towards the debt he owes to
the first respondent , he is unable to pay the full amount of the debt due to the
insufficiency of his income . If I accept this version, as I must, i t cannot, therefore, be
said that the applicant had an alternative sati sfactory remedy available to protect the
rights that he asserted in the present application.
rights that he asserted in the present application.
[41] For all the aforegoing reasons, I granted the following order:
11 Emphasis intended.
12 At para 293.
1. The applicant is hereby granted leave to bring this application as one of
urgency, and the normal Rules as to form and service are dispensed with.
2. A rule nisi is herby issued calling upon the respondents to show cause, if
any, on Tuesday 24 June 2025, at 09h30 am , or soon thereafter as be
matter may be heard, why the following order should not be made final:
2.1 Declaring the respondents’ conduct of terminating or disconnecting the
electricity supply to the premises situated at No. [...] Q[...] Place,
Mdlekeza, Ngangelizwe Township, Mthatha on 26 May 2025, unlawful.
2.2 That the respondents be ordered to reconnect the electricity supply to the
premises referred to in paragraph 2.1 forthwith.
2.3 Interdicting and restraining the respondents from charging the
reconnection fee.
2.4 That t he respondents be ordered to pay the costs of the applicati on on
scale B, jointly and severally, the one paying the other to be absolved.
3. That paragraph 2.2 and 2.3 shall operate as interim relief pending the
finalization of this application.
_____________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the applicants : Adv. L Matotie
Adv. N Gwele
Instructed by : L Tyali Attorneys
c/o Majokweni Attorneys, Mthatha
For the first and second
respondents : Adv. V Madokwe
Adv. H Miya
Instructed by : T. L. Luzipho Attorneys Mthatha
Date heard : 06 June 2025
Date reasons requested : 10 June 2025
Date reasons provided : 27 June 2025