Brief Summary

Municipal Law — Administrative Law — Promotion of Administrative Justice Act 3 of 2000 — Termination of electricity supply without notice — Appellants, as tenants, sought restoration of electricity and water supply after municipality disconnected services at property owner's request without prior notice — High Court dismissed application, finding no prima facie right established and upheld non-joinder of district municipality — Appeal upheld; municipality ordered to restore electricity supply pending determination of lawfulness of termination — Court found that termination without adequate notice was procedurally unfair and violated appellants' rights.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an appeal to the Supreme Court of Appeal against an order of the Eastern Cape Division of the High Court, Makhanda, which had dismissed an urgent application for interim relief compelling the restoration of municipal services to leased premises.

The parties were six appellants (Siphokazi Mafilika and five others), who occupied the relevant premises as tenants, and the first respondent, the Elundini Local Municipality, together with the second respondent, the Municipal Manager of that municipality.

The procedural history was that the appellants launched an urgent application in the High Court in two parts. In Part A, they sought immediate restoration of electricity and water, and an interim interdict preventing further termination pending final relief. In Part B, they sought declaratory relief that the termination of electricity and water without prior notice was unlawful, null and void ab initio, and procedurally unfair under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The High Court upheld a non-joinder point and dismissed Part A (and effectively the application as a whole) with costs. Leave to appeal was granted by the Supreme Court of Appeal.

The general subject-matter of the dispute concerned the termination of municipal electricity (and alleged termination of water) to a leased property at the request of the title owner, and whether the municipality could lawfully disconnect services without providing the tenants with reasonable pre-termination notice and, if required, an opportunity to be heard in terms of section 3(1) of PAJA.

2. Material Facts

The undisputed facts accepted by the Court included that the appellants occupied the property (Erf 3[...], M[...], Eastern Cape) as tenants, having leased it from a person identified by the appellants as Ms Pinky Madikane. The municipality provided electricity to the property.

It was further common cause for purposes of the Court’s reasoning that, at all material times, the municipality had a contractual agreement with the owner/title holder of the property, Ms Nosipho Flora Nyezi, for the provision of electricity to the property.

Chronologically, on 4 February 2023, Ms Nyezi wrote to the municipality requesting that it “temporarily disconnect the power connection” to the property. On 7 February 2023, the municipality terminated the electricity supply to the property at Ms Nyezi’s instance and pursuant to their contractual arrangement. The next day, 8 February 2023, the water supply was terminated. The terminations were effected without any pre-termination notice to the appellants.

On the issue of water, the Court treated as decisive the respondents’ version (for purposes of interim relief in motion proceedings) that the municipality did not supply water to the property, that water fell under the responsibility of the Joe Gqabi District Municipality, and that the municipality denied disconnecting the water supply. Because the district municipality was not joined, the Court accepted that no competent order could be made against the cited respondents relating to restoration of water supply.

The appellants alleged that they regularly purchased water and electricity from the municipality. The Court’s determination did not depend on resolving detailed factual disputes about payment, but rather on the legal character of the municipality’s termination of electricity and the procedural requirements applicable to that termination.

3. Legal Issues

The central legal questions were whether the municipality could lawfully terminate electricity supply to leased premises at the instruction of the title owner without providing tenants with reasonable pre-termination notice and, if required, an opportunity to be heard as contemplated by section 3(1) of PAJA.

A further legal issue concerned non-joinder, namely whether the failure to join the Joe Gqabi District Municipality rendered the water-related relief incompetent, given the respondents’ contention that water supply fell outside the first respondent’s mandate.

These issues primarily involved the application of law to fact: whether the termination of electricity in the circumstances constituted administrative action under PAJA and triggered procedural fairness duties toward tenants, and whether the relief sought could be granted in the absence of an allegedly responsible organ of state for water supply. The matter also involved the legal assessment of whether the appellants had established a prima facie right for interim interdictory relief pending Part B.

4. Court’s Reasoning

The Court first addressed the non-joinder point. It applied the established test that joinder is required where a party has a direct and substantial interest in the litigation that may be prejudicially affected by the judgment, and that the key enquiry is the practical effect of the order sought on the interests of an absent party. On the respondents’ version, which prevailed for purposes of motion proceedings, the district municipality was responsible for water supply and the first respondent had not disconnected water. In those circumstances, any order compelling reconnection of water would potentially affect the district municipality’s rights and responsibilities without it being heard. The Court therefore agreed with the High Court that the non-joinder point was correctly upheld, with the consequence that no competent order could be granted regarding water supply.

Turning to electricity, the Court identified the core question as whether the High Court erred in holding that the appellants failed to establish a prima facie right for interim relief, in light of the municipality’s constitutional and statutory duties relating to electricity provision. The Court emphasised that municipal duties in relation to electricity are regulated by the Constitution, national legislation, and municipal by-laws. It referred to constitutional provisions on the objects of local government (including ensuring provision of services in a sustainable manner and promoting a safe and healthy environment), development duties prioritising basic needs, and municipalities’ executive authority and right to administer local government matters, including through by-laws.

The Court further relied on the Local Government: Municipal Systems Act 32 of 2000, noting in particular the obligation to give members of the local community equitable access to municipal services, and to ensure access to at least a minimum level of basic services that is equitable and accessible.

A key part of the Court’s reasoning was its reference to and reliance on the municipality’s own Elundini Local Municipality Electricity Supply By-Laws, including the definitions of “consumer” and “occupier”, which extend beyond a strict contractual counterpart and include persons in actual occupation.

The Court placed substantial weight on Constitutional Court authority establishing that electricity is a basic municipal service and that municipalities are constitutionally and statutorily obliged to provide it. It treated Joseph and Others v City of Johannesburg and Others as dispositive on the question whether end-users (such as tenants) are entitled to procedural fairness even where electricity is supplied through a third-party relationship such as a landlord. In Joseph, the Constitutional Court held that tenants were entitled to adequate notice (at least 14 days in that case) before disconnection and that by-laws allowing termination without adequate notice and opportunity for representations were unconstitutional.

Against that legal background, the Court rejected the municipality’s submission that the disconnection was a purely contractual matter carried out at the owner’s request and therefore not administrative action. It reasoned that the municipality’s termination of electricity supply materially and adversely affected the appellants’ rights and implicated constitutional rights relating to basic services, bringing the conduct within the scope of section 3(1) of PAJA. The Court therefore concluded that the High Court had misdirected itself in finding that the disconnection was not administrative action and in holding that the appellants had not demonstrated a prima facie right to interim protection.

In consequence, the Court held that the High Court should have granted interim relief, and that the requirements for an interim interdict were met on the basis that the appellants had established a prima facie right not to have electricity terminated unfairly and without adequate notice.

The Court expressly limited its decision to the issue of procedural unfairness arising from termination without proper notice. It stated that it was not deciding whether the appellants would be entitled to continued electricity supply if termination occurred after due and proper notice, describing that as a different enquiry.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeal.

It set aside the High Court’s order and replaced it with an interim order directing the respondents, pending final determination of Part B, to restore the electricity supply within 24 hours after service of the court order by the appellants’ attorneys at the offices of the second respondent.

The Court granted costs in favour of the appellants, including the costs of two counsel. No relief relating to water was competent due to non-joinder of the district municipality, and the substituted order accordingly concerned electricity only.

Cases Cited

Absa Bank Limited v Naude N O and Others [2015] ZASCA 97; 2016 (6) SA 540 (SCA).

Gordon v Department of Health, KwaZulu-Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA); [2009] 1 All SA 39 (SCA); 2009 (1) BCLR 44 (SCA); [2008] 11 BLLR 1023 (SCA); (2008) 29 ILJ 2535 (SCA).

Johannesburg Society of Advocates and Another v Nthai and Others [2020] ZASCA 171; 2021 (2) SA 343 (SCA); [2021] 2 All SA 37 (SCA).

Joseph and Others v City of Johannesburg and Others [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC).

KSL v AL [2024] ZASCA 96; 2024 (6) SA 410 (SCA).

Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi Municipality and Amici Curiae) [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC).

Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] 2 ALL SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620.

Setlogelo v Setlogelo 1914 AD 221.

Tshivhase v Tshivhase N O and Another [2025] ZASCA 131; [2025] JOL 69707 (SCA).

Webster v Mitchell 1948 (1) SA 1186 (W).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 152, 153 and 156).

Local Government: Municipal Structures Act 117 of 1998 (including section 84).

Local Government: Municipal Systems Act 32 of 2000 (including sections 4(2)(f), 73(1)(c) and 73(2)(a)).

Promotion of Administrative Justice Act 3 of 2000 (section 3(1)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Court held that, while non-joinder prevented any competent order concerning restoration of the water supply (because the respondents’ version was that water fell under the district municipality’s mandate and that municipality had not been joined), the municipality’s termination of electricity to premises occupied by tenants without pre-termination notice constituted conduct falling within section 3(1) of PAJA and was subject to procedural fairness requirements.

It further held that the High Court erred in treating the termination as merely contractual action taken at the title owner’s request and therefore not administrative action, and that the appellants had established a prima facie right to interim relief pending determination of the substantive challenge in Part B.

LEGAL PRINCIPLES

A party must be joined to proceedings if it has a direct and substantial interest that may be prejudicially affected by the judgment, assessed with reference to the impact of the order sought and whether it can be carried into effect without substantially affecting that party’s interests.

Municipalities have constitutional and statutory obligations to provide basic municipal services, including electricity, and must pursue equitable and accessible provision within their capacity.

The termination of electricity supply by a municipality may constitute administrative action that materially and adversely affects rights or legitimate expectations, thereby engaging the procedural fairness requirements in section 3(1) of PAJA.

Tenants and other end-users of municipal electricity supply may be entitled to procedural fairness (including adequate notice and, where required, an opportunity to make representations) even where there is no direct contractual relationship with the municipality and where the municipality acts on instructions from a landlord or title owner.

For interim interdictory relief, a court considers whether there is a prima facie right, an injury committed or reasonably apprehended, the balance of convenience, and the absence of another satisfactory remedy, and a prima facie right may suffice even if open to some doubt.

Mafilika and Others v Elundini Local Municipality and Another (620/2024) [2025] ZASCA 142 (1 October 2025)