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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 094424/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 12 August 2025
Signature:
In the matter between:
AN-MARI BARKER Applicant
And
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent
THE MUNICIPAL MANAGER: CITY OF
TSHWANE METROPOLITAN MUNICIPALITY Second Respondent
ANDRIES CHRISTOFFEL PIEK Third Respondent
JUDGMENT
NYATHI J
A. Introduction
[1] This is an application whereby the applicant approached this Court on an
urgent basis for relief that a rul e nisi be issued declaring, amongst others, that
determination/restriction/disconnection/blocking of the water supply to the
premises being occupied by the applicant and her family be declared unlawful
and that the first and second respondents be directed to reconnect the water
supply.
[2] At the time of the launching of this application in 2023 before it was removed
before this current enrolment , the applicant was the occupant of the property
situated at No.2[...] P[...] St., Kilner Park, Pretoria [hereinafter referred to as the
premises]. The applicant has since vacated the property.
[3] Mr. Du Plessis submitted on behalf of the respondent that, under the
circumstances, the applicant is not persisting with the relief to ask for the
reconnection of the water, and also not asking for an interdict for the
respondents to reconnect. But applicant is still persisting with the relief of the
declaration that it is being unlawful conduct, together with the charging of a
possible reconnection fee and the issue of costs.
[4] It is common cause that the first respondent is entitled to disconnect or
discontinue service or terminate the supply of water to households for unpaid
rates and other services. However, such entitlement is governed by the 1st
respondent’s by-laws, more particularly section 15 thereof. Section 15 should
be read with section 9 (2) of the same by-laws.
B. The parties’ contentions
[5] The applicant contends that such connection occurred without the first
respondent having complied with its own by -laws, more particularly section 9
(2) and 15 (2) thereof.
[6] The first and second respondents , on the other hand, contend that the
disconnection was by virtue of the fact that the applicant had failed to make
payment after she received the requisite fourteen days’ notice.
[7] Furthermore, the first and second res pondents have also raised the grounds
that the matter is not sufficiently urgent , and that the applicant does not
possess the requisite locus standi to have launched the application.
[8] Mr du Plessis’s contentions were that the applicant was a tenant and not an
owner of the property and the account in arrears was not in the applicant's
names. Accordingly, he submitted that the occupant could not be held
responsible for the payment of the account.
[9] At the core of what remains of the applicant’s complaint is that according to the
applicant, the respondent has not serv ed it with a pre -termination notice in
keeping with the by-laws.
[10] The respondents have vigorously opposed this application both on the grounds
that it lacks urgency and that it has been overtaken by events and is therefore
moot. I deal with each point hereunder in sequence.
C. Urgency
[11] No cogent reasons were advanced by Mr du Plessis or an indication made to
the founding affidavit as to why this matter should be deemed urgent.
[12] The provisions of Uniform Rule 6 (12) were aptly dealt with by N OTSHE AJ in
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and
Others1 as follows:
“The import thereof is that the procedure set out in rule 6(12) is not there
for taking. An applicant has to set forth explicitly the circumstances which
he avers render the matter urgent. More importantly, the Applicant must
state the reasons why he claims that he cannot be afforded substantial
1 [2011] ZAGPJHC 196 (11/33767) (23 September 2011) in paras [6] and [7].
redress at a hearing in due course. The question of whether a matter is
sufficiently urgent to be enrolled and heard as an urgent application is
underpinned by the issue of absence of substantial redress in an
application in due course. The rules allow the court to come to the
assistance of a litigant because if the latter were to wait for the normal
course laid down by the rules it will not obtain substantial redress.
It is important to note that the rules require absence of substantial redress.
This is not equivalent to the irreparable harm that is required before the
granting of an interim relief. It is something less. He may still obtain
redress in an application in due course but it may not be substantial.
Whether an applicant will not be able obtain substantial redress in an
application in due course will be determined by the facts of each case. An
applicant must make out his case in that regard."
[13] A word of caution on urgency was sounded by COETZEE J in Luna Meubel
Vervaardigers (Edms) Bpk v Makin (t/a Makins Furniture Manufacturers)2 in the
following terms:
"Practitioners should carefully analyse the facts of each case to determine,
for the purposes of setting the case down for hearing, whether a greater or
lesser degree of relaxation of the Rules and the ordinary practice of the
court is required. The degree of relaxation should not be greater than the
exigency of the case demands. It must be commensurate with that
exigency. Mere lip service to the requirements of Rule 6 (12)(b) will not do,
an applicant must make out a case in the founding affidavit to justify the
particular extent of the departure from the norm, which is involved in the
time and day for which the matter be set down".
[14] In a collective of cases titled In re several matters on the urgent court roll 18
September 2012,3 WEPENER J held:
2 1977 (4) SA 135 (W).
3 2013 (1) SA 549 (GSJ).
"Further, if a matter becomes opposed in the urgent court and the papers
become voluminous there must be exceptional reasons why the matter is
not to be removed to the ordinary motion roll.”
"The urgent court is not geared to dealing with the matter which is not only
voluminous but clearly includes some complexity and even some novel
points of law."
[15] It was submitted on behalf of the respondents that this application was enrolled
in September 2023 as an urgent application. It was then removed from the Roll
in order for the applicant to file her replying affidavit — assuming that the notice
of removal was not on account of the fact that this matter had been resolved by
then. The replying affidavit was filed in October 2023.
[16] The applicant did not enrol the ma tter for hearing and only did so some 5 (five)
or so months after the fact. It is not open to conception that the application is
urgent.
D. Mootness
[17] The issue that applicant persisted with in this application has been resolved. In
National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs4 the Constitutional Court found that: “A case is moot and therefore not
justiciable if it no longer presents an existing or linve controversy which
should exist if the Court is to avoid giving advisory opinions on abstract
propositions of law.” [emphasis added].
E. Conclusion
[18] It is my considered opinion that this application does not meet any of the
criteria laid down by our apex courts calling upon it to exercise a discretion to
4 [1999] ZACC 17; 2000 (2) SA 1 (CC) para [21].
decide it notwithstanding the mootness of the issue as between the parties to
the litigation.5
[19] As shown thus far, the matter is not urgent to start with, and the applicant
urged the court to give an advisory opinion.
[20] In the result, the application is dismissed with costs.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 17/10/2024
Date of Judgment: 12 August 2025
On behalf of the Applicant: Mr Nico du Plessis
Instructed by: NJ Du Plessis & Associates, Pretoria
On behalf of the Respondents: Ms. Kelaotswe
Instructed by: Ncube Inc.
Delivery: This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand-down is deemed to be 12 August 2025.
5 Ruta v Minister of Home Affairs [2018] ZACC 52 and Centre for Child Law v Hoërskool Fochville 2016
(2) SA 121 (SCA), [2015] ZASCA 155.
Apologies are tendered to the parties for the delay in this outcome, it is a result of the
changes in staff which resulted in the matter being dealt with as closed, meanwhile the
judgment was outstanding.