REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 15119/2025
Date of Hearing: 23 July 2025
Date of Judgment? 3 September 2025
Reportable? No
Of interest to other judges? No
In the matter between:
CUPPO (PTY) LTD Applicant
and
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY First Respondent
CITY POWER (SOC) LTD Second Respondent
BRINK, FLOYD N.O. Third Respondent
JUDGMENT
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Mc Aslin AJ:
1. In this matter the Applicant seeks to hold the First and Third Respondents liable for the
contempt of two court orders, with varied relief being sought against all the respondents
in the event of the Applicant succeeding in its contempt application.
2. The background to the application is not genuinely in dispute and can be set out, in brief
terms, as follows:
2.1. The Applicant owns property situated at 41 Central Road in Forsdburg,
Johannesburg, which it rents out for use by a medical doctor and by the owner
of a hair salon and beauty parlour.
2.2. According to allegations in a pending action between inter-alia the Applicant
and the First Respondent under case number 5812/2016, the software system
used by the First Respondent to maintain its data and records of the
consumption of water and electricity by consumers of those utilities, including
the Applicant, was changed in 2009.
2.3. In the process of that change the Applicant alleges that the meter reading for
the consumption of water on its property was incorrectly recorded, which
resulted in a vastly inflated account thereafter.
2.4. The evidence shows that on 29 August 2009 the Applicant was billed an amount
of R1 514 962.05 for the consumption of water on the property over the period
21 April to 5 August 2009.
2.5. The amount of R1 514 962.05 is grossly disproportionate to the Applicant’s
water consumption on the property as reflected on the various municipal
accounts annexed to the affidavits from both parties in this application and, on
the face of it, the charge appears to be a glaring error.
2.6. Indeed, on 2 September 2009, and shortly after levying the charge of
R1 514 962.05, the First Respondent itself acknowledged the error in a letter to
the Applicant wherein it stated that “ … we have analysed your statement for
the month and we have noticed some discrepancy with regard to the water
amount billed. We have requested an investigation into the discrepancy and a
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correct statement will be sent to you as soon as the data has been verified and
corrected … we apologise for the inconvenience. … ”
2.7. The Applicant refers to this charge in its papers as “the Erroneous Debit”. I find
the description appropriate and convenient, and so I adopt the same description
in the balance of this judgment.
2.8. Despite its undertaking to correct the Erroneous Debit the First Respondent did
not do so and continued to include the amount in its monthly accounts to the
Applicant.
2.9. On 21 April 2015 the First Respondent terminated the supply of electricity to
the Applicant’s property on the basis that its account was in arrears. However,
but for the Erroneous Debit the Applicant ’s account would not have been in
arrears.
2.10. The Applicant approached the court for urgent relief and on 24 April 2015 an
order was granted by Twala J and by agreement between the parties. The
order directed the First Respondent to restore the supply of electricity to the
property and interdicted the First Respondent “from terminating the supply of
municipal services … to the property” provided the Applicant continued to pay
the current monthly charges on its account and pending the institution of an
action by the Applicant for a declarator in relation to the Erroneous Debit.
2.11. The First Respondent restored the supply of electricity to the Applicant’s
property after the issue of the order by Twala J.
2.12. The order of Twala J required the action for declaratory relief to be instituted
within 15 court days, and it is common cause that the time period was not met
and that the action was only instituted on 22 February 2016 . In my view,
nothing turns on this issue because the failure to institute the action within the
stated time was subsequently negated by the order of Moorcroft J, to which I
now turn.
2.13. I should add, as an aside, that the First Respondent’s defence in the action was
struck out and that the Applicant has applied for default judgment in the action,
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which I was told during argument had been enrolled for hearing on 4 August
2025. I do not know the outcome of that hearing.
2.14. Returning to the historical narrative, on 1 October 2023 the First Respondent
again terminated the supply of electricity to the Applicant ’s property because
the Applicant’s account was ostensibly in arrears.
2.15. This prompted another urgent court application and on 23 October 2023
Moorcroft AJ ordered the First Respondent to comply with the order of Twala J
and interdicted the First Respondent from “threatening to terminate or suspend
the municipal services … to the property” pending the finalisation of the action
instituted for the declaratory relief under case number 5812/2016.
2.16. The First Respondent restore d the supply of electricity to the Applicant ’s
property following the issue of the order of Moorcroft AJ, but it is not clear from
the evidence when that was done.
2.17. Be that as it may, the day after Moorcroft AJ issued his order the First
Respondent terminated the supply of water to the Applicant ’s property, once
again, for the reason that the Applicant’s account was ostensibly in arrears.
2.18. The Applicant was accordingly compelled to approach the urgent court for a
third time, and on 27 October 2023 Adams J ordered the First Respondent to
restore the supply of water to the property by 10h00 on 28 October 2023, but it
was only done on 30 October 2023.
2.19. On 11 August 2024 the supply of electricity to the Applicant ’s property was
again terminated and the entire electrical meter was removed, which prompted
the current application.
3. Prior to this matter being heard certain material events took place. Firstly, the supply of
electricity to the Applicant’s property was restored on 13 August 2024, but the meter to
measure the consumption of electricity was not returned. That remained the position
when the replying affidavit was deposed to on 2 September 2024. However, I was told
when the replying affidavit was deposed to on 2 September 2024. However, I was told
during the argument of the matter that an electricity meter had in the interim been
installed at the Applicant’s property.
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4. The second material event is that the Third Respondent was obliged to vacate the office
of City Manager by an order of this court. The Applicant sought to address the event by
giving notice on 2 July 2025 in terms of U niform Rule 15(2) for the substitution of Mr
Tshepo Makola, who is currently the acting City Manager of the First Respondent , as
the Third Respondent in the application.
5. The substantive relief that the Applicant seeks can be summarised as follows:
5.1. In the first instance, it asks that the First and Third Respondents be declared to be
in contempt of the order of Twala J and the order of Moorcroft AJ.
5.2. Then it asks that the First Respondent and/or the Second Respondent and/or the
Third Respondent restore the supply of electricity forthwith, and if they fail to do
so within 5 hours of an order compelling them so to do, that the First Respondent
be ordered to pay a fine calculated at R10 000.00 per hour for every hour of delay
or in an amount determined by the court.
5.3. Lastly, the Applicant seeks the committal to imprisonment of the Third Respondent
for a period of 14 days or a period determined by the court, which committal must
be suspended pending the finalisation of the action concerning the Erroneous
Debit and on condition that there is compliance with the order of Justices Twala
and Moorcroft.
6. In my view most of the relief sought by the Applicant is not competent or it has been
rendered academic by intervening events.
7. The Second Respondent seems to have been cited because it appears to be the entity
that was responsible for returning the electricity meter. Since that has already taken
place, there is no relief that can be granted against the Second Respondent.
8. In similar vein, because the supply of electricity has been restored to the Applicant ’s
property the condition for the levying of a monetary fine against the First Respondent
has fallen away, and so that relief is no longer competent.
has fallen away, and so that relief is no longer competent.
9. As far as the committal of the Third Respondent to a term of imprisonment is concerned,
that relief was not competent from the outset.
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10. I say that because in the matter of Matjhabeng Local Municipality v Eskom Holdings Ltd
and Others 2018 (1) SA 1 (CC) the Constitutional Court stated the following: “ [103]
Bearing in mind that the persons targeted were the officials concerned – the municipal
manager and Commissioner in their official capacities – the non-joinder in the
circumstances of these cases is thus fatal. Both [the municipal manager] and [the
Commissioner] should thus have been cited in their personal capacities – by name –
and not in their nominal capacities.”
11. Earlier in the judgment Nkabinde ADCJ explained that the necessity to join the individual
in his/her personal capacity is “[92] … to ensure that the person in question knows of
the complaint so that they can enlist counsel, gather evidence in support of their position,
and prepare themselves adequately in the knowledge that there are personal
consequences – including a penalty of committal – for their non-compliance. All of these
entitlements are fundamental to ensuring that potential contemnors ’ rights to freedom
and security of the person are, in the end, not arbitrarily deprived.”
12. In this matter both Mr Brink and Mr Makola were cited in their nominal capacities as the
affected officials within the First Respondent, but they were never cited in their personal
capacities. Consequently, their committal to a term of imprisonment would be
incompetent in the absence of their joinder to the proceedings in their personal
capacities.
13. As I see it the only substantive relief that remains alive for consideration is a portion of
the order sought in prayer 2 viz. a declarator that the First Respondent was in contempt
of the orders of Justices Twala and Moorcroft. That the electrical supply has been
restored to the Applicant ’s property since the institution of the application, does not
preclude me from determining whether the First Respondent was in contempt of court
prior to the institution of the application.
prior to the institution of the application.
14. I n that regard, i t is now well established in our law that a n applicant in contempt
proceedings must prove the existence of the court order , service or notice of the order
and the wilful and mala fide non-compliance with the order of court. However, “once the
applicant has proved the order, service or notice, and non- compliance, the respondent
bears an evidential burden in relation to the wilfulness and mala fides”.
1
1 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at [42]
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15. The Constitutional Court dealt with the applicable onus in the Ma tjhbeng matter and
concluded that the “[67] … the standard of proof must be applied in accordance with the
purpose sought to be achieved … . … On the other hand, there are civil contempt
remedies – for example, declaratory relief … - that do not have the consequence of
depriving an individual of their right to freedom and security of the person. … Here, and
I stress, the civil standard of proof – a balance of probabilities – applies.” Consequently,
I will apply the civil standard of proof in determining whether the Applicant is entitled to
the declaratory order that it seeks.
16. In this matter the existence of the court orders is not in dispute. Nor is the fact that the
First Respondent had notice or knew of the orders, since they were part of the
application that was served on the First Respondent when Adams J handed down his
order on 27 October 2023. There is an attempt by the First Respondent to dispute its
non-compliance with the orders of Justices Twala and Moorcroft, but in my view no
genuine dispute is raised.
17. In that regard, it is not disputed that the supply of electricity to the Applicant’s property
was terminated on 11 August 2024, but the First Respondent argues inter-alia that it
was not responsible for the termination, which immediately begs the question as to who
else might have terminated the supply of electricity?
18. The founding affidavit sets out the observations of an eyewitness, Mr Ndumiso Khumalo,
who deposed to a confirmatory affidavit and who is employed by a third party as a
security guard at the Applicant’s property. Mr Khumalo says that on 11 August 2024 he
observed that certain individuals arrived at the premises in an unmarked vehicle wearing
clothing that bore no insignia. He says he saw how they used a key to access the metal
box housing the electricity meter and cables, and how they proceeded to disconnect the
box housing the electricity meter and cables, and how they proceeded to disconnect the
cables and remove the meter, which they then placed in their vehicle when they left the
property.
19. The First Respondent denies this evidence on the basis that its personnel do not drive
around in unmarked vehicles whilst wearing clothing that does not carry the insignia of
the Second Respondent. However, this denial is undermined by the fact that when the
supply of electricity was restored to the premises on 13 August 2024, it was done by
individuals driving in an unmarked vehicle and wearing clothing that did not identify them
as being the personnel of the Second Respondent. Nevertheless, they identified
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themselves to the same Mr Khumalo as being sent by the Second Respondent to
reconnect the supply of electricity.
20. The First Respondent also relies on a communication which I was told in argument was
written by a legal advisor in the employ of the First Respondent and who deposed to the
answering affidavit viz. Mr Tuwani Ngwana. The communication is quoted in the
answering affidavit as follows:
“Good day Mildred
Kindly note that the above account was not part of our disconnections, hence we
did not disconnect and don’t know who disconnected the address. There is a court
order to reconnect, however we have managed to do so but without an electricity
meter. May you kindly assist and have the meter installed please.”
21. A copy of the communication is not annexed to the answering affidavit . However it is
annexed to the replying affidavit, which shows it to have been an e- mail written by Mr
Allister Carelse of the Second Respondent, and not Mr Ngwana as I was told in
argument. I have not been able to establish wh o the named “Mildred” is, but it seems
the e -mail was a response to a request to reconnect the supply of electricity to the
Applicant’s property.
22. Taking the communication in isolation as the First Respondent does, makes it difficult
for me to make any sense of it. The process of disconnecting electricity from a
consumer’s premises is not explained by the First Respondent and so I do not know, for
example, whether there are separate teams within the Second Respondent that attend
to disconnections and so Mr Carelse was only speaking for his team. It is also not known
whether the Second Respondent uses sub -contractors to disconnect electricity and
perhaps one of them was responsible for the disconnection.
23. Mr Sithole, who appeared for the First and Second Respondents, was alive to this lacuna
in the evidence and so tried to introduce evidence of the disconnection process during
in the evidence and so tried to introduce evidence of the disconnection process during
argument. That, of course, is not the way to adduce evidence in a court and I cannot
have regard to such evidence.
24. Not only has the First Respondent addressed this important issue in a vague manner,
but it has also done so in a contradictory fashion. Despite denying that the First
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Respondent was responsible for the termination of the electricity supply, Mr Ngwana
also says the following in his answering affidavit:
“99.3 I repeat the fact that the Municipality and its companies have attended
to the Applicant ’s property to disconnect the services applied to the
Applicant.”
and
“99.10 Save for the confirmation that the Municipality terminated the services,
it cannot be contended that the Applicant has made out a case for the
granting of the relief sought.”
25. C ause for further disquiet with how the First Respondent addresses this important issue
is the fact that a central theme running throughout Mr Ngwana’ s answering affidavit is
that the First Respondent is empowered through its by -laws to terminate the supply of
electricity where a consumer does not pay for its consumption. Mr Ngwana, quite
surprisingly, denies the existence of the Erroneous Debit and all the annexures to his
answering affidavit are intended to establish that the Applicant’s account is in arrears
with the result that the First Respondent was justified in terminating the supply of
electricity to the Applicant’s property.
26. I will address Mr Ngwana’s views on the status of the Applicant’s account in due course.
For present purposes , however, it should readily be appreciated that if the First
Respondent was not responsible for the termination of the electricity on 11 August 2024,
then there would be no reason for Mr Ngwana to justify the termination of the service
and all the evidence on the status of the Applicant’s account should be wholly irrelevant.
The fact that Mr Ngwana dedicates a substantial portion of his answering affidavit to the
issue of whether the First Respondent was justified in terms of its by -laws to terminate
the supply of electricity to the Applicant’s property, suggests quite strongly that the First
Respondent was responsible for the termination.
27. In my view this is not a matter where a dispute of fact has arisen in the traditional sense
i.e. where an allegation by the applicant is disputed by the respondent on a credible
basis. Rather, I am presented with a situation where the allegation by the Applicant that
the termination of the supply of electricity was done by the First Respondent is both
admitted and denied by the First Respondent. In that event, there cannot be a bona fide
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dispute of fact and the allegation by the Applicant must be accepted. Once that is so,
the First Respondent’s failure to comply with the orders of Justices Twala and Moorcroft
is established.
28. I turn now to consider whether the First Respondent has dispelled the evidential burden
on it of establishing that its non -compliance with the orders of Justices Twala and
Moorcroft was not wilful and mala fide.
29. The first point to consider flows from what I have just addressed viz. the fact that the
First Respondent has seen fit to both admit and deny its failure to comply with the orders
of court. Such contradictory behaviour tends to suggest that the First Respondent
cannot be bona fide in its approach to the matter.
30. As I have already mentioned, Mr Ngwana attem pts to justify the termination of the
electricity supply to the Applicant ’s property on the basis that the Applicant ’s account
was in arrears and so the First Respondent was entitled, in terms of its by -laws, to
terminate the supply of electricity.
31. On a plain reading thereof, the orders of Twala J and Moorcroft AJ interdicted the First
Respondent from terminating the supply of electricity to the Applicant’s property pending
the finalisation of the action that will decide the validity of the Err oneous Debit, and
provided the Applicant continues to pay the current monthly charges on its account.
32. The account that was issued to the Applicant before the termination of the electricity
supply on 11 August 2024 was the account for July 2024. That account shows an
outstanding amount of R1 424 505.40. However, if the amount of R1 514 962.05 for the
Erroneous Debit is taken into account, then it is clear that the Applicant is not in arrears
with its accou nt. If anything, the Applicant ’s account with the First Respondent is in
credit.
33. In what can only be described as somewhat of a farce, Mr Ngwana attempts to show in
his answering affidavit that “the Applicant pays what it perceives to be [an] appropriate
his answering affidavit that “the Applicant pays what it perceives to be [an] appropriate
amount” and does not pay for all the service utilities that it consumes, with the result that
“the Municipality is therefore authorised to implement i ts by -laws as the Applicant
remains liable and indebted to the Municipality”.
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34. I say that the exercise conducted by Mr Ngwana is farcical because it fails to take into
account the very documents that are relied on by Mr Ngwana. For example, Mr Ngwana
claims that the Applicant currently consumes utility services in an amount of R13 000.00
to R17 000.00 per month but only pays less than R10 000.00 per month. However, the
tax invoices that are annexed to Mr Ngwana’s answering affidavit demonstrate that the
Applicant never paid less than R10 000.00 per month. In addition, the payment history
going back to 2022, which is also annexed to the answering affidavit , shows that the
Applicant paid an average amount in excess of R17 500.00 per month. Accordingly, the
very documents relied on by Mr Ngwana belie his assertion that the Applicant fails to
pay the current monthly charges for the utilities that it consumes.
35. Mr Ngwana also makes startling statements in his answering affidavit. For example, he
claims that the Erroneous Debit was contrived by the Applicant and, despite there being
a pending court action in regard thereto, that the dispute is being used by the Applicant
to abuse the court process and prevent the First Respondent from implementing its by-
laws in the collection of debts owed to it by the Applicant. According to Mr Ngwana, the
Applicant must pay the Erroneous Debit under protest and then sue the First
Respondent to recover whatever might be due to the Applicant. The answering affidavit
is replete with such sentiments , and they can only be described as the ramblings of a
man that has absolutely no appreciation for, or understanding of, the objective facts of
the matter.
36. The position then is that the First Respondent has sought to explain its termination of
the electrical supply on 11 August 2024 on a basis that is far-fetched and entir ely
divorced from the facts . As a result, the First Respondent cannot be taken to have
acquitted itself of the evidential burden to rebut the inference that its non-compliance
acquitted itself of the evidential burden to rebut the inference that its non-compliance
with the orders of Justices Twala and Moorcroft was both wilful and mala fide.
37. It was argued by the First Respondent that the fact that the electrical supply was
reinstated negates any inference of wilfulness and mala fides . To my mind, however,
the reinstatement confirms the mala fides of the First Respondent. If the First
Respondent is sincere in its belief of what is stated by Mr Ngwana, then it should not
have reinstated the supply of electricity. The Applicant ’s account was in arrears , and
the First respondent was entitled through it s by-laws to disconnect the electricity. The
fact that First Respondent simply reinstated the electricity demonstrates that it had no
belief in what Mr Ngwana now claims to have been the position. The disconnection was
simply arbitrary and done in bad faith.
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38. It should be apparent from what I have set out above that the First Respondent has
conducted itself poorly in the conduct of this litigation. It has filed an answering affidavit
by a deponent that has no personal knowledge of many of the facts that are set out
therein, and which confuses rather than elucidates the essential issues. The affidavit is
also replete with argument rather than the facts of the matter. In addition, many of the
allegations in the answering affidavit are made recklessly and without any apparent
regard for their veracity by Mr Ngwana. Some of the allegations simply defy common
sense, whilst others are deeply perplexing. The answering affidavit dem onstrates a
measure of ineptitude in its preparation that is hardly fitting for the legal advisor of a
metropolitan municipality such as the First Respondent.
39. The Applicant asks that costs be awarded on the scale as between attorney and client,
and in my view such an order is warranted.
40. In light of the above I make the following order:
(i) It is declared that the First Respondent was in contempt of the order of Twala J
dated 24 April 2015 and Moorcroft AJ dated 23 October 2023 when the First
Respondent terminated the supply of electricity to the Applicant’s property on 11
August 2024.
(ii) The First Respondent is to pay the costs of the application on the scale as between
attorney and client.
___
C J Mc Aslin
Acting Judge of the High Court
3 September 2025
On behalf of the Applicant: Adv. E Venter
Instructed by: Dasoo Attorneys
On behalf of the First & Second Respondent: Adv. E Sithole
Instructed by: Madhlopa Tenga Inc