NOT REPORTED
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO. 2025-161644
In the matter between:
NYANISO MAQINA Applicant
and
BUFFALO CITY METROPOLITAN
MUNICIPALITY First Respondent
THE MUNICIPAL MANAGER, BUFFALO
CITY METROPOLITAN MUNICIPALITY Second Respondent
JUDGMENT IN RESPECT OF URGENT
APPLICATION FOR INTERIM RELIEF
(ELECRICITY DISCONNECTION)
HARTLE J
[1] In this application, among countless that this court is inundated with on
an urgent basis weekly, the applicant seeks to make out a case that his rights of
access to electricity and to fair and just administrative action have been violated
because the first respondent (“ the municipality”) has unprocedurally terminated
or discontinued or blocked the service of the electricity supply to a property in
Mdantsane (“the premises”) in respect of which he claims to have a personal
interest.
[2] He seeks (by way of interim relief) a declarator that the disco nnection be
declared unlawful, a mandamus that the municipality reconnect the electricity
supply to the premises within 4 hours after service of the court order, and an
interdict restraining the municipality from charging him a reconnection fee as a
result of the unlawful termination of the supply of electricity to the premises.
[3] Additionally, he seeks punitive costs on an attorney and client basis
because the municipality audaciously purported to disconnect the electricity
supply to the premises without notice well knowing that it may not do so
without prior notification to consumers of electricity services.
[4] The municipality’s refusal to reconnect the electricity supply even after a
demand served on it on 1 September 2025 to do so, provided the impetus for the
applicant to come to this court on the basis of claimed urgency and is the pivot
on which he claims he will not be afforded substantial redress in the ordinary
course.
[5] The conduct that underpins the present vindication by the applicant is the
claimed unlawful disconnection and the consequence thereby that the applicant
has supposedly been denied access to the electricity services at the premises as a
consumer of such services. The applicant says that it is unlawful because it was
not preceded by a lawful procedure that is supposed to ensue even for the
benefit of consumers other than registered customers before the municipality
can disconnect.
[6] There is of course no contention that the municipality can disconnect
services to any premises if an accou nt is in arrears but not before 14 days
written notice is given of the intended termination to a consumer against whom
a municipality intends to terminate the electricity supply.1
[7] The jurisprudence that has developed on the subject clarifies that such
notice must be provided not only to an owner who has a contractual relationship
with the municipality concerned, but also to a consumer of such services
entitled to receive them as well.2
[8] I do not for present purposes intend to go into the notice re gime that is
required neither do I address the issue whether the notice served in this instance
meets the requirements of the Electricity By -Laws read with section 115 (1) of
the Municipal Systems Act, No. 32 of 2000. The municipality claims it does
because it was served to the owner corresponding to the account number in
respect of the premises on a date in January 2025, some 7 months before it acted
on the default of its customer. I also make no pronouncement on the question
whether that constitutes effective notice.
[9] This is because my focus herein is on the preliminary objection raised by
the municipality that the applicant has no locus standi to have brought this
application.
1 See section s 14 and 15 of the By-Laws of the first respondent published in Provincial Gazette Extraordinary
under No. 5016 dated 24 November 2023 (“the By-Laws”).
2 See Joseph & Others v City of Johannesburg & Others (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212
(CC); 2010 (4) SA 55 (CC) (9 October 2009) at [47]
[10] The applicant says the following in his founding affidavit:
7.1 He brings the application/action in his own interest in terms of section
38 (1)(a) of the Constitution.
7.2 He has a right to be supplied electricity, upon tender of payment, but
is being restricted.
7.3 He does not have an account with the municipality.
7.4 Prior to the unlawful d isconnection, he enjoyed the full and
uninterrupted supply of electricity.
7.5 Prior to the disconnection, the municipality was required to provide
him with written notice that would have afforded him the right to be
advised of any amounts due to the municipal ity, to submit
representations, and to make arrangements.
7.6 Such notice was not given to him.
7.7 Had he received such notice, he would have made further
representations.
7.8 He is willing to make payment of the services being used.
7.9 The municipality has not followed the correct procedures before
limiting his constitutional rights and has acted contrary to the By -
Laws.
[11] He vaguely, speaks of a right “ to utilize the premises ” and that he
“attempted to purchase electricity”, but was denied this service.
[12] He repeats, under the mantle of “clear right” that he approaches this court
as the occupant of the property, and that, absent the municipality respecting fair
procedures - since he was entitled to have received notice at the premises prior
to the disconnection, his rights have been violated.
[13] He laments that that the anticipated notice would have informed him of
any amounts outstanding and drawn attention to the provisions of any policy to
make the necessary arrangements and/or to submit a dispute.
[14] He repeats, under the mantle of “ Fair Proced ure”, rather ambiguously,
that he is “the occupant and owner of the property”.
[15] Under “ Conclusion”, he avers that the unlawful disconnection of the
supply of electricity is causing him irreparable harm but then, in the plural, adds
that “ our right to occ upy and utilize the premises has been prejudicially
limited”.
[16] Prior to concluding with what the applicant says in his founding affidavit,
it is necessary to advert to the letter of demand. The demand references the
account number which he says he did not open but he does not disclose who the
accountholder is or what that person’s relationship is to him, if any.
[17] He is identified in the demand as a “tenant” of the premises.
[18] Whilst a tenant and an occupant may well be synonymous, he
coincidentally goes on to reveal some history of a dispute with the municipality
on the issue of arrears, which he has not at all addressed in his founding
affidavit. A date in January 2022 is also flagged as relevant, but its significance
is not foretold in the founding affidavit.
[19] The following extract creates the clear impression of an existing
controversy with the municipality around the issue of the arrears owing to it in
respect of the premises, which he has clear knowledge of:
“3. From the onset we wish to advise your of fice that our client instructed us that
they have not been receiving consecutive monthly statements. Statements are
received intermittently and reflects exorbitant unexplanatory amounts owed to
BCM by our client.
4. In view of the fact that our client has not been receiving regular statement of
accounts, we formally request-
a. A detailed statement of account and reconciliation in respect of the
applicant’s rates, services and utility account for the period from 1
January 2022 to date. This request being in respect of the above
property.
b. The monthly statement of accounts rendered by BCM to the applicant
in respect of rates, services and utilities for the period from 1 January
2022 to date in respect of the above property.
…”
[20] The demand goes to five pag es and asks for a host of documentation that
a co-incidental tenant would certainly not need to press in on, indiscriminately
flips pronouns, and suggests that a person(s) other than the applicant, is/are
affected by the account controversy.
[21] Not surprisingly the municipality opposed the application and raised as a
preliminary issue, amongst others, that the applicant lacks locus standi to bring
the present application. Not unfairly, the municipality accuses the applicant of
failing to demonst rate why he claims an interest as opposed to the owner and
why the owner cannot approach the court on his own. To use the second
respondent’s quaint expression in the answering affidavit, the applicant has
failed to put this court “ into confidence of his occupation”. For example, the
question begs itself when and under what circumstances he come to occupy the
premises. Has he purchased electricity before and has he been paying some if
not for all of the municipal services rendered at the premises?
[22] The m unicipality further, quite fairly so, criticizes the applicant for the
ambiguity around the issue of his own unique relationship with the municipality
and/or responsibility for the arrears in respect of the premises and why he
claims to be a person who sho uld have received the disconnection notice as a
“consumer”.
[23] The deponent raises two aspects that would point to a developing
relationship with the applicant as a person in the know of the arrears relative to
the premises by the account holder. Firstly he says that the applicant was made
aware of the process to follow a change of account holder, but instead of
ensuring compliance he approached his attorney of record. He also reveals the
following:
“… the Applicant avers in the founding affidavit that he has a right to the supply of
electricity. Accepting for a moment that he has such right, such right bears a duty
upon the applicant for the payment of services rendered by the 1 st Respondent. It is
common cause that the deceased account which is a subject of this litigation with the
1st Respondents is in arrears, and the fact that the account has fallen into arrears and
without any payment arrangement in place, a recognized debt recovery process
becomes implementable.”
[24] What the municip ality in effect says in its answering affidavit is that the
applicant is known to it as a person with an interest in the premises, but not in
his capacity as an unrelated occupant or tenant that would establish a basis for
him to have been served with the disconnection notice as a “consumer”.
[25] The second respondent put up a copy of the notice which it claims was
properly served to the registered customer, namely Mr. S K Maqina. That final
notice incidentally reflects an amount owing to the municipality i n a sum of
R57 182.94 which is the reason why the municipality claims that it was entitled
to disconnect services to the premises after giving notice to the customer by
service of the notice affixed to a gate of the premises.
[26] In his replying affidavit, t he applicant raises a number of technical
reasons why this court should reject the disconnection notice as valid but
interestingly does not clarify the suggestion raised in the municipality’s
answering affidavit that he is not an unknown person as far as t he municipality
is concerned in relation to the premises and in respect of the arrears. Indeed it
would be an abuse of process to claim that he is entitled as an occupant to notice
if in fact he has been dealing with the municipality as a known person all along
on behalf of the account holder who the municipality claims was indeed served
with a disconnection notice as the latter ought to have been.
[27] What renders the issue especially obfuscated by rhetoric is the applicant
stating as follows in his replying affidavit:
“… I am not the owner of the property and I am merely an occupant. I am advised
that
the occupant passed away, but that my attorneys will now address correspondence to
the Respondents to this effect. Still this does not indemnify them from co mplying
with the Electricity Supply By -Laws as debt collection steps have been initiated
before the prescriptive legal requirements were met.”
[28] Mr. Du Plessis in arguing the matter revealed from the Bar that the named
owner of the premises is the applicant’s father.
[29] Why this has not been disclosed by the applicant is a matter of great
concern. It is also not understood how he could allege as i f he were an
independent occupant that he bears no knowledge of his father’s passing neither
does he say when he passed or in what capacity he had been negotiating with
the municipality before concerning the issue of the arrears. Reading between
the lines his interests appear to relate to his representation of his late father’s
estate rather than as a tenant or occupant in the usual sense of those words.
[30] One looks in vain to appreciate unequivocally what his true interest is.
What he does not say is that he lives at the premises or that he has personally
bought electricity before or how he accesses the service, the discontinuation of
which he now seeks to vindicate as an independent tenant/occupant.
[31] Mr. Du Plessis continued to try and prevail upon the co urt that as a
“consumer” the applicant has his rights but with respect his client has a duty to
make a full disclosure of the relevant facts to establish that right. What we are
left with is a mis -mash of averments that do not collide and/or leave more
questions begging than answers.
[32] Whether it is because of a copy and paste gremlin, or deliberate I cannot
say, but the thought occurs to me that it may well be a stratagem to create an
impression that as an occupier the applicant claims to be nescient and i nnocent
of the arrear situation whereas in fact his interest ought to be confined to
representing the late estate only that is self-evidently in arrears with the account.
[33] I believe there is merit in Mr. Mdzanga’s argument that the applicant has
not stated unequivocally what his interests are or how he stands to be impacted
by not having been served with a notice of the intended termination of services
as a consumer.
[34] I am not satisfied on the papers before me that the applicant has clearly
established the basis upon which his right in respect of the premises is derived.
--
[35] In the result the preliminary objection is upheld and the application is
dismissed, with costs on Scale A.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF APPLICATION : 23 September 2025
DATE OF JUDGMENT : 25 September 2025
Appearances:
For the applicant : Mr. N Du Plessis of N J Du Plessis & Associates Incorporated, East
London (ref. Mr. N Du Plessis).
For the respondents: Mr. K Mdzanga instructed by Jolwana Mgidlana Incorporated, East
London (ref. Jolwana).