SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 2660/2025
In the matter between:
NONKUSELO MAZATU 1st Applicant
LINDEKA NONGQAYI 2nd Applicant
and
OR TAMBO DISTRICT MUNICIPALITY 1st Respondent
THE MUNICIPAL MANAGER: OR TAMBO
DISTRICT MUNICIPALITY 2nd Respondent
EASTERN CAPE DEVELOPMENT CORPORATION 3rd Respondent
__________________________________________________________________
REASONS FOR THE URGENT INTERIM ORDER
__________________________________________________________________
RUSI J
[1] The applicants are the occupiers of the premises known as W[...] Hotel, erven
1[...] and 1[...]2 Sutherland Mthatha (the premises), since 2023 together with various
other occupiers and small businesses. The property is owned by the third respondent
who has an agreement with the first respondent for the provision of municipal services.
The third respondent’s municipal services account fell in arrears. As at March 2025 the
arrears allegedly owed to the firs t respondent by the third respondent were
R48 742 761.62 (Forty-eight million seven hundred and forty -two thousand, seven
hundred and sixty-one rands sixty-two cents).
[2] On 08 May 2025, the first respondent terminated the water supply to the
premises as a result of the third respondent’s failure to pay the arrear s on its municipal
services account . The applicants contend ed that that termination was unlawful and
unconstitutional for failure of the first respondent to follow a fair procedure before
implementing it . The applicant s sought urgent interim relief pending the ir intended
review of the decision of the first respondent to terminate the water supply to the
premises.
[3] On 06 June 2025, being the date of hearing of the application, I indicated to
counsel representing the parties that due to the nature of the issues that the intended
review application implicated, I would only consider interim relief pending its finalization.
After hearing the application, which was by then fully opposed only by the first and
second respondents, I granted the following order:
1. The applicants are hereby granted leave to bring this application a s one of
urgency, and the Rules regarding forms and service are dispensed with.
2. A rule nisi is hereby issued calling upon the respondents to show cause, if any,
on Tuesday 24 June 2025, at 09h30 an or so soon thereafter as the matter may
be heard, why the following order should not be made final:
2.1 The termination of the water supply to erven 1[...] and 1[...]2, W[...] Hotel,
Sutherland Street, Mthatha is hereby declared unconstitutional and
unlawful.
2.2 The termination of the water supply to erven 1[...] and 1[...]2, W[...] Hotel,
Sutherland Street, Mthatha, is hereby reviewed and set aside.
2.3 The respondents are hereby directed to reconnect the water supply to
W[...] Hotel, Mthatha, forthwith.
2.4 The respondents are hereby interdicted and/or restrained from terminating
the water supply to the said premises in an unlawful and unconstitutional
manner.
2.5 The applicant’s failure to exhaust internal remedies as may be provided for
in any other law and as may be relevant, is condoned.
2.6 The respondents are directed to pay the costs of t his application jointly
and severally, the one paying the other to be absolved, including costs
consequent upon the employment of two counsel.
3. Paragraphs 2.3 and 2.4 shall operate as an interim order or mandamus pending
the finalization of this application.
[4] A request was made on 10 June 2025 on behalf of the first and second
respondents for written reasons for the order I made. Below I give those reasons, and
where I make reference to ‘the respondents’, it shall be to the first and second
respondents.
The case for the applicants
[5] In their founding affidavit which was deposed to by the first applicant and
supported by the second applicant in her confirmatory affidavit, the applicants s tated
that they are persons in occupation of the premises and the consumers of the water
supply services that the first respondent provides to the third respondent. They occupy
the premises with school -going children. The applicant s further allege d that they are
indigent persons who live on child support grant and odd jobs.
[6] According to the applicants, the w ater supply to the premises was terminated by
the first respondent on 08 May 2025 without any reasons furnished for the termination.
All subsequent attempts that they made with a view to obtaining further information
pertaining to the termination failed . Those attempts included visiting the offices of the
first respondent where they were ‘sent from pillar to post’. After obtaining legal advice,
they caused a letter to be written to the first respondent on 16 May 2025 requesting the
restoration of the water supply . In response, they were informed by t he first respondent
in a letter dated 16 May 2025 that the termination was occasioned by a debt of
R48 742 761.62 (Forty eight million seven hundred and forty -two thousand, seven
hundred and sixty-one rands sixty two cents) that the third respondent owes t o the first
respondent, and that there was a subsequent illegal connection of the supply which
resulted in the removal of a water meter that was allegedly illegally installed on the
property.
[7] Further communication was transmitted to the first responde nt on 19, 22 and 28
May 2025, in which a demand was made on behalf of the applicants for the restoration
of the water supply to the premises. When this attempt yielded no positive results, the
applicants went to the offices of the first respondent in order to resolve the matter .
There, they were informed that there was nothing the first respondent could do.
[8] The grounds on which the applicants challenge the termination of the water
supply as being unlawful and procedurally unfair are that they were not informed by the
first respondent of its intended termination and the reasons therefor; they were not
afforded an opportunity to make representation s; and they were not informed of their
rights in the light of the termination . Further according to the applicants, s ince the first
respondent was aware that they, together with various other persons , occupied the
respondent was aware that they, together with various other persons , occupied the
premises, it was not sufficient to only inform the third respondent of the intended
termination.
[9] The termination, so the applicants contend ed, was therefore unreasonable in the
circumstances and adversely affected their rights and legitimate expectation since they
started receiving the water supply , that it would not be terminated without a fair
procedure. Had they been notified of the intended termination, they would have made
representations as to why the water supply should not be terminated. The applicants
went further and stated that the termination rendered the premises incapable of optimal
occupation and deprived them of an indispensable basic necessity of life.
[10] In substantiating the urgency with which the application was brought, the
applicants stated that the termination adversely affected their right of access to sufficient
water. They are dependent on water for their survival and in order to conduct daily
activities such as cooking and washing clothe s. T he ablution facilities have become
clogged in the absence of water supply as human waste cannot be flushed away. This ,
in turn, causes an unbearable stench and filthy conditions which expose them to health
risks and unnecessary hardship. It has caused them financial distress as they cannot
cook and are forced to buy take -away food daily. Th e right of the child ren’s right to
education and dignity is violated as the minors are forced to go to school without having
taken a bath. Some occupiers have resorted to buying water from supermarkets. The
applicants contended that they will not be afforded substantial redress at the hearing of
the matter in due course.
[11] The applicants further assert ed that the balance of convenience favour ed the
granting of the urgent interim relief sought. In the light of the fact that all their pleas to
the first respondent to reinstate the water supply to the premises have been brought to
nought, they ha d no other adequate alternative remedy. In this application, t hey
asserted their right to a fair procedure before a decision that adversely affects their
asserted their right to a fair procedure before a decision that adversely affects their
rights is taken. Their right to the water supply, they say, has been violated.
The case for the first and second respondents
[12] The nub of the first respondent’s opposition is that in keeping with its Credit
Control and Debt Collection Policy (the Policy) , it exercised it s right to terminate the
water supply to the premises when the third respondent’s municipal services account
fell in arrears. The first respondent also denies that the termination was without the
notice that is r equired by its Policy. In this regard, it states that in December 2024 it
dispatched a notice to the third respondent and any person occupying the premises, by
affixing such notice on the pillar s that anchor the main gate of the premises, on the
perimeter wall of the property along Sutherland Street , and on the main door of the
premises. Its contents were also read out loud by its official to the people that she found
on the property and whose names are unknown. I may mention that from the said notice
the amount that was due and owing at the time, was R2 067 573.57 (Two million and
sixty-seven thousand, five hundred and seventy-three rand fifty-seven cents).
[13] Ms Funeka Ngqongwa who deposed to a confirmatory affidavit which was filed
with the opposing affidavit of the respondent s stated that on the day she went to serve
the notice at the premises in the manner alleged by the respondent s, she also read the
notice out in vernacular to the persons she found on the property . The said notice is
annexed to the papers filed of record. It is written in English. In the notice the first
respondent informs the third respondent , to whom it is addressed, inter alia, of the
outstanding amount a nd the impending termination of the water supply if no payment
was made.
[14] It is the respondents ’ evidence further, that, o n 2 4 March 20 25, the first
respondent delivered a notice of termination dated 20 March 2025 at the business
address of the third respondent. In this notice, it gave the third respondent seven (7)
days to pay the outstanding arrears of R48 742 761.82 on pain of the termination of the
days to pay the outstanding arrears of R48 742 761.82 on pain of the termination of the
water supply. When the seven -day period expired without any payment being made by
the third respondent, the first respondent terminated the water supply to the premises.
[15] The respondent s further allege d that after this termination, they detected an
illegal reconnection which they contended was done by the third respondent or the
persons occupying the premises. The illegally installed water supply was terminated
without further notice to the third respondent or the persons occupying the premises.
[16] In refuting the urgency with which the applicants brought this application , the
respondents stated that since the termination on 08 May 2025, the applicants only
contacted the first respondent on 16, 22 and 28 May , through their attorneys , and the
urgency that they contend ed for was contrived. The respondents denied that the
balance of convenience favoured the granting of the interdict that the applicants sought.
They further denied that the applicants have no other alternative remedy, stating that
they have an option of concluding separate agreements with the first respondent for the
supply of municipal services. Further, according to the respondents, the applicants have
not established a prima facie right ‘due to the nature and effect of the relief that they
seek’.
[17] In reply, the applicants denied that the notice dated December 2024 was brought
to their attention, further stating that they are always present in the premises and they
would have seen or heard the official of the first respondent announcing the contents of
the notice. In the alternative, they contend ed that the affixing of the notice as alleged
fell short of the required standard of service. They further state d that the premises are
under guard of security officers who would also have become aware of the fact that
such a notice was indeed delivered. That there was an illegal reconnection of the water
supply to the premises after the termination of 08 May 2025 was denied by the
applicants. They stated that there was no stage where the water supply to the premises
was ever restored after the termination of 08 May 2025.
The parties’ submissions
[18] As a preliminary issue, it was submitted by Mr Matotie who represented the
applicants that the degrading and deplorable conditions in which the applicants have
applicants that the degrading and deplorable conditions in which the applicants have
been made to live following the termination of water supply to the premises in the
alleged unlawful and unprocedural manner ma de the matter urgent. Si nce on 16 and
again on 28 May 2025 the first respondent had made it clear that it would not come to
the aid of the applicants, they were justified in bringing this application on urgent basis.
[19] It was further submitted on behalf of the applicants tha t their failure to approach
the court as early as 16 May 2025 did not di minish the urgency of the matter as they
first attempted to negotiate its resolution with the first respondent. When it became clear
on 28 May 2025 that the first respondent maintained its position, they issued the
application on 30 May 2025, and t hey have proven that they would not obtain
substantial redress at the hearing of the matter in due course.
[20] On the score of the interdict that the applicants sought it was submitted they
established a prima facie right that is worthy of protection in that, as the residents of the
premises and consumers of the water that the first respondent supplied to the third
respondent, they had a right to be notified of the decision to terminate the water supply
and of their right to make representations. That the applicants live below the poverty
line, so the submission continued, mean t that settling a water bill of R48 742 761.62 or
making arrangements to settle it , cannot be an alternative satisfactory remedy available
to them.
[21] Mr Madokwe submitted on behalf of the respondents, that the matter is not
urgent in that the applicants have failed to explicitly set out the grounds on which they
rely for the alleged urgency, alternatively, that the alleged urgency was self-created, and
it resulted in the violation of the 72 hour notice that the first respondent ought to have
been given, in terms of section 35 of the General Law Amendment Act 62 of 1955 . In
this regard he submitted that the applicants were dilatory in bringing this application as
the termination complained of took place on 08 May 2025, with the further termination of
an illegal reconnection having taken place on 15 May 2025. According to Mr Madokwe,
an illegal reconnection having taken place on 15 May 2025. According to Mr Madokwe,
as early as 16 May 2025, the first respondent had made it stance clear that there would
be no restoration of the water supply until the outstanding debt was paid.
[22] As regards the applicants’ entitlement to the interdict, Mr Madokwe submitted
that they failed to establish a prima facie right in that they failed to prove their residence
in the premises. They produced no lease agreements or proof that they paid their water
bills in respect of the municipal services account. Mr Madokwe took the view that i t is
the third respondent who has ‘an unquestionable right’ to bring this application as the
one who has a contractual relationship with the first respondent. He further submitted
that the applicants had an alternative remedy at their disposal in the form of making
arrangements to pay the debt owed to the first respondent. According to him, the
applicants did not establish that the balance of convenience favoured the grant of the
interdict.
Analysis
[23] In this discussion, I deal, first, with the urgency contended for by the applicants. A
determination of urgency in application proceedings entails the question whether the
applicant will be afforded substantial redress at the hearing of the matter in due course.1
It bears re -stating that a litigant cannot be penalized for attempting to resolve the
dispute before instituting court proceedings.2
[24] In light of the continued effects of the discontinuation or termination of water
supply to the premises on the rights that the applicants asser ted, it ought to follow that
they would be forced to endure the indignity of the dire and unhygienic conditions that
they have set out in their founding papers if this matter is not heard as a matter of
urgency. This Court is clothed with the discretion to intervene and resolve a matter
speedily where the circumstances of the case so demand. The present application was
such a case. Put simply, form should not be allowed to trump substance. I made the
finding that the matter was indeed urgent.
1 Luna 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).
2 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at 94C-D.
The merits of the interdict sought
[25] A question that follows is whether the applicants established a right which was
worthy of preservation pending the final decision on review. In National Treasury and
Others v Opposition to Urban Tolling Alliance and Others3, Moseneke DCJ said:
‘Under the Setlogelo test, the prima facie right a claimant must establish is not
merely the right to approach a court in order to review an administrative decision.
It is a right to which, if not protected by an interdict, irreparable harm would
ensue. An interdict is meant to prevent future conduct and not decisions already
made. Quite apart from the right to review and to set aside impugned decisions,
the applicants should have demonstrated a prima facie right that is threatened by
an impending or imminent irreparable harm.’4 (footnotes omitted).
[26] Did the applicants establish their entitlement to the interdict that they sought? I
attempt to answer this question in the discussion that follows.
The prima facie right
[27] From the above facts, it seems incontrovertible that the first respondent was at all
times relevant to the present dispute aware that it was providing the supply of water to
the third respondent for the benefit of the occupiers of the premises . It is also common
cause that after the notice of termination that was allegedly delivered at the premises
and allegedly brought to the attention of the occupiers of the premises, there was no
termination of the water supply to the premises for some time.
[28] The further notice dated 20 March 2025 was delivered on 24 March 2025 only at
the place of business of the third respondent at [...] S[...] Street, Fortgale, Mthatha.
Indeed, when the seven -day period that the third respondent was afforded in the latter
3 National Treasury and Others v Opposition to Urban Tolling Alliance and Others (CCT 38/12) [2012]
ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) (20 September 2012) (OUTA).
4 Id para 50.
notice to pay the arrear s on its w ater account expired without it making the said
payment, the water supply to the premises was terminated. It follows per force that this
notice was not brought to the attention of occupiers , yet on the first respondent’s own
showing that same notice was the basis on which the termination was done.
[29] It is worth noting that t he applicants merely denied knowledge of or responsibility
for any illegal connection of the water supply subsequent to the termination of 08 May
2025. In this regard, the first respondent adduced proof of the meter reading in respect
of the property, which the applicants did not dispute.
[30] With that said, the rights that the applicants assert ed in this application are right
to a fair procedure before a decision is m ade which adversely affect ed their right; the
right of access to basic water; the right to an environment that is not harmful to their
health and well-being; the right to dignity and their children’s right to education. Although
the applicants did not form ulate their assertion in this selfsame manner, a reading of
their founding papers permits of no other interpretation. These are the rights that the
applicants contended are relevant for the purposes of the intended review. They went
further and set out the conditions in which they have had to live as a result of the
termination of the water supply. To this, the deponent of the respondents ’ opposing
affidavit answered that ‘he does not live on the premises and has no knowledge of the
conditions that the applicants alleged.
[31] In Vaal River Development5, Madlanga J who wrote for the majority, posed the
following questions in relation to the reduction of electricity supply which the applicants
in that case alleged was done without a fair procedure being followed:
‘Does it not infringe one’s dignity to cause them to drink water that is
contaminated with faecal matter? Of course, it does. Does the real threat of loss
contaminated with faecal matter? Of course, it does. Does the real threat of loss
of human life at hospitals and old age nursing homes occasio ned by the
5 Eskom Holdings 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’).
reduction of electricity supply not constitute a threatened infringement of the right
to life? It certainly does. If the flow of raw faeces into the Vaal River is not
violative of the right to an environment that is not harmful to health or well -being,
I do not know what is. Does the negative impact on schooling caused by the
reduced supply of electricity not infringe the right to basic education? Surely, it
does. The asserted rights have been established.’6
[32] I readily accept that the Vaal River Development case is distinguishable from the
present case on the facts. However, I hold the view that the principles therein
enunciated and the approach that the Court followed in assessing the nature of the
rights that would entitle the applicants to the interim relief they sought, find application in
the present matter. This is so by reason of the fact that , similar to the present case, the
impugned conduct of a state -owned entity adversely affected the rights of the residents
even though the p rivity of the contract for the provision of electricity supply existed
between the state-owned entity and the Municipality.
[33] Therefore, I dare say that if, as it has been shown in the present case, having to
live in premises which are engulfed by the stench from human waste that cannot be
disposed of owing to lack of water does not violate the applicants’ dignity and their right
to an environment that is not harmful to health or well-being, I do not know what does.
[34] I must interpose to state that clause 7.16 of the Policy provides as follows:
3. Notice of limitation, disconnection and discontinuation
I If the customer fails to pay any account within the period prescribed in
section 22(2)(a) of this policy, the municipality shall notify the debtor of the
intention to limit, disconnect or discontinue the supply of water,
i. Seven (7) days after final letter of demand is given to business
consumers and government customers to reply and,
6 Id, para 288.
ii. Fourteen (14) days after final lette r of demand is given to domestic
consumers, churches and NGO’s to reply.
4. Limitation, Disconnection or discontinuation of supply
I. An account rendered to a customer by the municipality in respect of
municipal services, including the rendering of sewer services, shall be
paid on the due date.
II. If the customer fails to pay any account within a period of forty -seven (47)
days for business and government customers and sixty (60) days for
domestic, churches, NGO customers after the expiry of the du e date, then
–
i. without further notice, the municipality may limit, disconnect or
discontinue the supply of water to the immovable property in
question;
ii. . . .
III. The limitation, disconnection or discontinuation of the supply of water shall
be effected in the manner that is customarily used or by taking such
reasonable and lawful steps as may be necessary.
IV. . . .
V. The municipality must permit the customer to m ake arrangements prior to
the limitation, disconnection or discontinuation of the supply of water,
unless,
i. other users will be prejudiced
ii. there is an emergency situation; or
iii. the customer has interfered with a limited, disconnected, or
discontinued water supply
VI. The limitation, disconnection or discontinuation of water shall not
result in a customer being denied access to basic water services for
non-payment, where the customer proves, to the satisfaction of the
municipality, that he or sh e is unable to pay for basis water
services.
[35] From the above provision s of the Policy of the first respondent, it mus t be
accepted that after the notice of termination dated December 2024, the first respondent
was entitled, at the expiry of 47 days, to terminate the supply of water without further
notice to the third respondent where it had not paid its debt within the time specified.
[36] Apart from the fact that on the respondent’s own showing the termination of the
water supply to the premises followed the notice dated 20 March 2005, h erein lies my
discomfort with the notice dated December 2024 which the respondents would have the
court believe was served on the applicants – on the face of it no proof appears of the
manner in which it was served upon the occupiers of the premises in particular, and
indeed no proof of such service was adduced in evidence in these proceedings. This
Court only had the says-so of the first respondent’s employee, Ms Ngqongwa, that the
said notice was served on the residents of the property by affix ing it as aforementioned,
and by the reading out loud of its contents which she translated to vernacular. Notably,
the notice is addressed to the third respondent whom it also invited to make the
necessary arrangements to settle the account. It makes no mention of the residents of
the premises.
[37] Although the applicants contended that the manner of service of the notice dated
December 2024 did not , in any event, meet the required standard, I have not been told
by any of the parties what the Policy provides concerning the manner of service of
documents and notices. This is an important matter. Be that as it may, Bodlani AJ, in
Barker and Another v Nangu and Anothe r7 once remarked that ‘it is not optional for
municipalities to attend to their duties with insight and a sense of humanity ’. The
approach that the learned Acting Judge adopted in that case concerning the service of
documents or process on parties that wo uld be adversely affected by the relief that was
documents or process on parties that wo uld be adversely affected by the relief that was
sought in the matter is instructive. In that case, the learned Acting Judge said:
7 Barker and Another v Nangu and Another (EL2049/2023) [2024] ZAECELLC 37 (9 July 2024), at para 7.
[23] Mindful that there is a tenant in the property. . ., so that if granted the reach of the
eviction order would go beyond the Nangu family, I issued another directive in the
following terms:
‘ [S]hould, at the time of service, the Sheriff find no one in the property willing to
accept service or, no one at all , the Sheriff is authori zed after satisfying himself
that there is no one who is willing to accept service, to affix this directive in 3
(three) most prominent features of the property including but not limited to the
main door, the main gate and/or the pe rimeter wall using an adhesive tape and if
the method of service has been to affix, to take photos of this directive after
affixing; and to thereafter render a return of service which explains fully how
service was effected.
[38] The learned Acting Judge continued and said:
[24] For I did not know who else lives in the property, other than the Nangu
Family and the tenant, and what their standard of education is, I also issued the
second directive in IsiXhosa, and in the following terms. . .’
[39] Although the case of Barker related t o the eviction of the respondents from a
certain property, the aspect of service of documents or process that the court dealt with
in that case is equally fundamental in the present matter as it would have a bearing on
the rights of those affected by the intended decision as the notice heralded.
[40] I make the finding that t he notice dated December 224 is manifestly bereft of the
of kind of sensitivity, reasonableness and consideration that the Court in Barker upheld,
of ensuring that the persons who woul d be affected by the adverse decision that was
impending, were given proper and adequate notice thereof. This is apart from the fact
that the December 2024 notice was directed to the third respondent to the exclusion of
the occupiers of the premises.
[41] Furthermore, if it is accepted then, as it ought to, that the first respondent knew
that the water supply to the premises was consumed by the residents thereat, does the
fact that it had no direct or contractual relationship with those residents prevent the
residents from asserting the rights I have enumerated above ? In Vaal River
Development, Madlanga J, dealt with a similar question and said:
‘[i]t is so that there is contractual privity between Eskom and the municipalities,
and not between the residents and Eskom. That matters not. The lack of
contractual privity does not stand in the way of the residents asserting other
rights protected by the Bill of Rights, which have been infringed by the decision to
reduce electricity supply substantially.’8
[42] At paragraph 293, the learned Judge went further and said:
‘The threshold for an interim interdict in terms of a breached right or in terms of a
threat of breach is not showing the certain existence of the right. You need only
show a right, though at the level of interim relief it may be “open to some doubt”.
In my view, the residents, who also demonstrate bases for seeking a review,
have done more than this test requires.’
[43] On the issue of the importance of the pre -termination notice, the learned Judge
further as said:
‘The importance of notice and an opportunity to make representations cannot be
overemphasised. The opportunity is so important that authority says it 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. . .’9
8 Id, at para 265.
9 At para 207.
[44] In the present case, the applicants contend ed that after the termination, their
attempts to make representations to the first respondent failed as they were informed by
the first respondent’s official that there was nothing the first respondent could do. The
result would be that the door to making representations was shut to them.
[45] It is my finding that through the aforegoing, the applicants established a prima
facie right that must be preserved by way of an interdict, pending the review application.
I turn to consider whether the applicants established that they would suffer irr eparable
harm as a result of the impugned conduct of the first respondent if the interdict was not
granted.
Irreparable harm
[46] At the time of launching these proceedings, the first respondent had made it
abundantly clear that no restoration of the water supply would take place until the third
respondent settled its debt. The harm that its conduct of terminating the water supply in
the alleged unprocedural manner caused, was still continuing. Should the applicants be
expected to endure the indignity and the health risk that emanates from the
consequences of the first respondent’s conduct? This question must be answered with a
resounding ‘no’. The refore, the applicants would suffer irreparable harm if the interdict
that they sought was not granted for no repair to a person’s violated dignity is
conceivable.
[47] At this juncture I must hasten and state that I should not be taken as saying that
the first respondent has no right to implement its Credit Control and Debt Collection
Policy. It has every right to do so. I place emphasis, instead, on the duty of the first
respondent to respect the rights of the applicant s by following a fair procedure before
making a decision that would adversely affect their rights.
Balance of convenience
[48] I can do no better on this aspect, than borrow from Madlanga J 10 as I pose these
questions: will the skies fall if , purely in the interim , the first respondent continues to
provide an appropriate supply of water to the premises pending the finalization of the
intended review? Is it not just, instead, to allow the applicants in the interim, to live a life
that is as near as possible to dignified pending the finalization of the review?
[49] It must be noted that from the termination notice dated 20 March 2025, the first
respondent was amenable to payment arrangements being ma de by the third
respondent towards paying off its debt. From this i t must necessarily follow that even if
the third respondent’s debt was not immediately paid in full, with an acceptable payment
arrangement in place, the first respondent would have restored the supply of water to
the premises. For these reasons, the balance of convenience favour ed the granting of
the interim interdict pending the review.
Do the applicants have an alternative remedy?
[50] The existence of another remedy will only pre clude the grant ing of an interdict
where the proposed alternative will afford the injured party a remedy that gives it similar
protection to an interdict against the injury that is occurring or is apprehended. The
alternative remedy must be a legal remedy, that is, a remedy that a court may grant
and, if need be, enforce, either by the process of execution or by way of proceedings for
contempt of court. The fact that one of the parties, or even the judge, may think that the
problem would be better resolved, or can ultimately only be resolved, by extra -curial
means, is not a justification for refusing to grant an interdict.11
[51] At the time the applicants approach ed this Court for relief, the first respondent
had been firm on its position that a restoration of water supply to the premises would
only take place once the debt owed by the third respondent had been paid. I make the
only take place once the debt owed by the third respondent had been paid. I make the
observation, though, that from the firs t respondent’s own accounting, that debt went
10 Vaal River Development, foot note 5 supra, at para 306.
11 Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA 723 (SCA);
2017 (2) SA 485 (SCA) (20 October 2016); para 36
from R 2 067 573.57 in December 2024 , to R48 742 761.62 in March 2025. The
applicants have stated that they are indigent persons who live below the poverty line
and survive on child support grant. Unsurprisingly, this would not have come to the
attention of the respondents for the simple reason that on the applicants’ version, which
I accept as being plausible, they never afforded the m the opportunity to make
representations before the termination.
[52] For all the aforegoing reasons, I granted the following order:
1. The applicants are hereby granted leave to bring this application as one of
urgency, and the Rules regarding forms and service are dispensed with.
2. A rule nisi is hereby issued calling upon the respondents to show cause, if any,
on Tuesday 24 June 2025, at 09h30 a m or so soon thereafter as the matter may
be heard, why the following order should not be made final:
2.1 The termination of the water supply to erven 1[...] and 1[...]2, W[...] Hotel,
Sutherland Street, Mthatha is hereby declared unconstitutional and
unlawful.
2.2 The termination of the water supply to erven 1[...] and 1[...]2, W[...] Hotel,
Sutherland Street, Mthatha, is hereby reviewed and set aside.
2.3 The respondents are hereby directed to reconnect the water supply to
W[...] Hotel, Mthatha, forthwith.
2.4 The respondents are hereby interdicted and/or restrained from terminating
the water supply to the said premises in an unlawful and unconstitutional
manner.
2.5 The applicant’s failure to exhaust internal remedies as may be provided for
in any other law and as may be relevant, is condoned.
2.6 The respondents are directed to pay the costs of this application jointly
and severally, the one payi ng the other to be absolved, including costs
consequent upon the employment of two counsel.
3. Paragraphs 2.3 and 2.4 shall operate as an interim order or mandamus 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 : S R Mhlauli & Associates, 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 of given : 27 June 2025