SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
Of interest
Case no. 823/2025
In the matter between:
TRENDIGRAPH CC Applicant
and
GREAT KEI LOCAL MUNICIPALITY Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
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LAING J
[1] This is an application for confirmation of a rule nisi previously granted in
favour of the app licant on 7 March 2025. The applicant seeks, inter alia, an order to
the effect that the respondent’s disconnection of the electricity supply, without notice,
be declared unlawful. It also seeks an order that the relevant provisions of the
respondent’s Credit Control and Debt Collection Policy, and the corresponding By -
law, be declared unconstitutional.
Applicant’s case
[2] In its founding affidavit, the applicant said that it operated a butchery on erf
2[...] Qumrha (Komga). The respondent disconnected the applicant’s electricity
supply on 20 February 2025 without prior notice. The reason given was that there
was no record of any electricity purchases during the period of December 2024 to
January 2025, notwithstanding the applicant’s payment of R 3 843 on 7 February
2025. The applicant explained that it had paid R 10 000 for bulk purchases of
electricity in September 2024 and October 2024, respectively, but its consumption
had been reduced after the installation of solar panels. At the time o f disconnection,
pre-paid units were available. The applicant was adamant that it had not tampered
with the meter.
[3] The applicant referred to various portions of the respondent’s Credit Control
and Debt Collection Policy, permitting disconnections witho ut notice. It contended
that the provisions in question were unconstitutional.
Respondent’s case
[4] In its answering affidavit, the respondent alleged that it had procured the
services of Ontec Systems (Pty) Ltd to monitor meter use. Its technical depar tment
communicated closely with its revenue management department on the
replacement, resetting, and disconnection of meters to ensure the minimization of
losses. Low or zero consumption indicated possible theft, prompting measures
ranging from disconnecti on to the laying of criminal charges. The municipal council
had previously resolved to curb a scourge of meter tampering, causing the
respondent to ‘declare war’ on such practices and for its municipal manager to direct
its technicians, on 27 January 2025, to disconnect offenders.
[5] The monitoring of the applicant’s purchases led the respondent to believe that
there had been tampering. Consequently, a team of technicians went to the
applicant’s premises on 20 February 2025 and disconnected the supply. Th e meter
reflected 2 045 pre -paid and unused units available for consumption. The team
returned to the premises on 10 March 2025 to restore the supply after the applicant
obtained interim relief, but discovered that the applicant had already reconnected
itself, unlawfully, and that the meter reflected a total of 1 296 units. The respondent’s
system detected a purchase of R 1 000 on 11 March 2025, increasing the total to
1 326 units, which the technicians noted when they went back to the premises later
that d ay. It was alleged that the applicant’s consumption of 749 units during the
period of its disconnection indicated that it had tampered with the meter. The
respondent noted, too, that the applicant had previously made an illegal connection;
this had resulte d in the respondent’s imposition of a fine of R 22 538, which the
applicant had paid without objection.
[6] The respondent argued that, in the event of tampering, both its Credit Control
and Debt Collection Policy and the relevant By -law permitted disconne ction without
and Debt Collection Policy and the relevant By -law permitted disconne ction without
notice. Only an authorized official could restore the supply.
In reply
[7] The applicant pointed out, in reply, that the reason given by the respondent’s
officials for the disconnection was that there had been no record of any electricity
purchases during the period of December 2024 to January 2025. No mention had
been made of tampering. The applicant went on to aver that it had installed a solar
energy system in January 2024, constituting the main energy source for the
premises; reliance wa s placed on the municipal electricity supply only when the
inverter batteries for the system required recharging. During the period of February
to December 2024, the applicant generated 70 395 kW of power. A report prepared
by a solar technician and attach ed to the papers confirmed that the applicant used
solar energy for the butchery and liquor store that operated on the premises; it
explained why the applicant did not purchase any significant amount of electricity
during the period of December 2024 to Jan uary 2025, upon which the respondent
had based its decision to disconnect.
[8] The meter box remained intact, said the applicant; there had been no
tampering. In contrast, the respondent’s mains box was situated outside the
premises and was in a bad state of repair; it was not properly covered, resulting in its
exposure to the elements and to the public. The applicant averred that it had relied
on solar energy during the period that it was disconnected. It denied that it had
reconnected itself. It also deni ed having made an illegal connection in the past but
admitted that a lessee had previously tampered with the meter; this had resulted in
the applicant’s payment of the fine imposed by the respondent, and the lessee’s
ejection from the premises.
Issues to be decided
[9] The issues for determination appear to be the following: (a) whether there was
a factual basis upon which the respondent could have disconnected the electricity
supply; (b) whether the applicable provisions of the Credit Control and Debt
Collection Policy and the corresponding By -law are unconstitutional; and (c) if so,
then what relief ought to follow.
[10] The relevant principles are those that pertain to the granting of final relief, and
[10] The relevant principles are those that pertain to the granting of final relief, and
just administrative action. A brief overview of the legal framework follows.
Legal framework
[11] The applicant seeks confirmation of a rule nisi. It contends that the
respondent was not entitled to have disconnected the electricity supply without prior
notice; there had been no tampering. The respon dent contends quite the opposite,
saying that there had indeed been tampering. In his oft -quoted commentary,1 Van
Loggerenberg notes that:
‘It is well established that if the material facts are in dispute and there is no request for the
hearing of oral evidence, a final order will only be granted on notice of motion if the facts as
stated by the respondent together with the facts alleged by the applicant that are admitted by
the respondent, justify such an order 2 unless, of course, the court is sat isfied that the
respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of
fact, is so far -fetched or so clearly untenable or so palpably implausible as to warrant its
rejection merely on the papers.’3
[12] Neither party requested that the matter be referred to oral evidence. It must
be decided on the papers in accordance with the above principles.
[13] Turning to the constitutionality of the respondent’s Credit Control and Debt
Collection Policy and the corresponding B y-law, the applicant bases its case on the
right to just administrative action in terms of section 33 (1) of the Constitution.4 It also
refers to the provisions of the Promotion of Administrative Justice Act 3 of 2000
(PAJA), enacted to give effect to the constitutional right mentioned above. In that
regard, section 1 defines administrative action as a decision (or a failure to take a
decision) that adversely affects the rights of any person and that has a direct,
1 DE van Loggerenberg, Erasmus: Superior Court Practice (Jutastat e-publications, RS 26, 2025, D1), Rule
6–33–4.
2 The general rule was set out in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4)
SA 234 (C), 235. This has been followed on numerous occasions subsequently.
SA 234 (C), 235. This has been followed on numerous occasions subsequently.
3 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), 635C. The principle has
become entrenched in the South African law of civil procedure.
4 Section 33 (1) of the Constitution of the Republic of South Africa,1996 states that everyone has the right
to administrative action that is lawful, reasonable, and procedurally fair.
external legal effect. Furthermore, sectio n 3 (2) (b) stipulates that, to give effect to
the right to procedurally fair administrative action, an administrator must give
adequate notice of the nature and purpose of the proposed action, a reasonable
opportunity to make representations, a clear statement of the action, adequate notice
of any right of review or internal appeal, and adequate notice of the right to request
reasons.
[14] There are several decisions that have a bearing on the present matter. The
applicant relies chiefly on Joseph and Othe rs v City of Johannesburg and Others ,5
where the Constitutional Court dealt with the termination of the electricity supply to
tenants residing in a block of flats in circumstances where the landlord was in
substantial arrears for payments owed to the serv ice provider, City Power (Pty) Ltd.
The court held, per Skweyiya J, that:
‘ . . . As is plain from the wording of the provision, by -law 14 (1) of the Electricity By -laws
allows the Council to dispense with the obligation to afford pre -termination notice to those
affected by such termination. In affording Council this discretion, by -law 14 (1) is clearly
inconsistent with the procedural fairness requirements under section 3 (2) (b) of PAJA, and
is therefore also inconsistent with section 33 (1) of the Consti tution. City Power did not
proffer any justification for the limitation of the right to just administrative action. Indeed, City
Power reasoned that the Electricity By-laws had been impliedly repealed.
. . . Given that by -law 14 (1) of the Electricity By -laws is still on the municipal statute book
and is inconsistent with the Constitution to the extent that it permits disconnection “without
notice”, it falls to be declared unconstitutional and therefore invalid. The words “without
notice” must be severed fr om by-law 14 (1). An order of invalidity coupled with severance is
therefore appropriate. Naturally, the provision, in its severed form, must be read in the light
of PAJA.’6
of PAJA.’6
[15] The above decision set out important principles that are relevant to the
termination of supply in case of non -payment. Whether the case is directly relevant
to the present matter, however, has still to be decided. For the moment, the
discussion that follows must be situated within the rudimentary legal framework
described above.
5 2010 (4) SA 55 (CC).
6 Paragraphs [70] to [71].
Factual basis for disconnection
[16] It seems, from the answering papers, that the factual basis for the
respondent’s disconnection of the applicant’s supply stemmed from the municipal
council’s determination to address the problem of meter tampering. The municipal
manager’s instructions to disconnect offenders resulted in the steps taken against
the applicant. In that regard:
‘ . . . the respondent’s electrical technicians reviewed the purchase trends of the applicant
through the Ontec System and such re view suggested that the applicant’s electricity [had]
been tampered with . . .’
[17] Consequently, the technicians proceeded to the applicant’s premises on 20
February 2025 and carried out the disconnection. The applicant obtained interim
relief, causing t he technicians to reconnect the supply on 10 March 2025; in doing
so, they discovered that the applicant had consumed 749 units during the 18 -day
period of disconnection. The applicant explained, however, that it depended on solar
energy for its needs; thi s accounted for its low consumption of the municipal
electricity supply during the preceding months. It denied having tampered with the
meter, pointing out that it remained intact. In contrast, the respondent’s mains box,
situated outside the premises, was vulnerable to tampering by members of the
public.
[18] The respondent’s Credit Control and Debt Collection Policy defines
‘tampering’ as:
‘ . . . any unauthorized interference with Council’s supply, seals, and metering equipment to
cause damage to Council’s property and to evade payment for services.’
[19] The most pertinent reference to the term appears at paragraph 16 of the
policy, which deals with the various mechanisms and options available to the
respondent to ensure effective debt collection. In t hat regard, the relevant sub -
paragraph reads:
‘Unauthorized consumption, theft, damages, and penalties
As the unauthorized consumption, theft, and damage to municipal property, for example,
As the unauthorized consumption, theft, and damage to municipal property, for example,
meters, have become more and more a problem, severe penalties will be implemented.
• The By -laws of the Council define what constitutes unauthorized consumption of
services, connections or reconnections, tampering or theft of meter, equipment or
reticulation network and fraudulent activity in connection with the supply of services,
and must provide that such activity constitutes an offence.
• Where any of the conduct described above is detected, supply to the debtor will be
immediately terminated.
• . . .’7
[20] Despite mention of the by-laws in the policy, they do not assist. In this regard,
the respondent referred to the By -laws Relating to the Prevention of Tampering with
Electrical Installations and/or the Improper and/or Unauthorised Use of Such
Installations,8 but the term, ‘tampering’, is not defined. Instead, section 8 (1) provides
as follows:
‘8. Tampering with service connection or supply mains
(1) No person shall in any manner or for any reason whatsoever tamper or interfere
with any meter or metering equipment or service connection or service protective
device or supply mains or any other equipment of the Municipality.’
[21] In the present matter, the factual basis for the respondent’s disconnection of
the supply appears to have been the absence of any record of the applicant’s
purchase of electricity during the months of December 2024 and January 2025. This
was amplified in the respondent’s answering papers to the effect that the decision
was based on an assessment of the applicant’s ‘purchase trends’, using the services
provided by Ontec Syste ms (Pty) Ltd. There has never been any allegation to the
effect that the applicant had been in arrears regarding payments for rates and
service charges. From the respondent’s papers, the real reason for the decision was
the belief or suspicion that the app licant had tampered with the supply or the meter
itself. There was, however, little if any evidence to support this. Using the policy
definition of ‘tampering’, it cannot be said that the respondent presented any proof of
definition of ‘tampering’, it cannot be said that the respondent presented any proof of
the applicant’s interference with the supply, seals, or metering equipment, resulting in
damage to the respondent’s property and the applicant’s evasion of payment for
services. The absence of any record of electricity purchases, moreover, can hardly
7 Sic.
8 The respondent stated that it caused the by-laws in question to be published on 10 July 2023 in
Provincial Gazette no. 4949.
be deemed as evidence of tampering. The re could have been a perfectly acceptable
reason for this, such as a faulty meter or faulty monitoring software — or the
applicant’s switch to solar energy, as was the case here.
[22] There are further problems with the factual basis relied upon by the
respondent. No explanation was given for why low or zero consumption was a
reliable indicator of tampering, considering the recent history of notoriously unreliable
electricity distribution in the country and the private sector’s increasing dependence
on sola r energy as a reaction thereto. No explanation was given for how the
respondent had implemented the monitoring system and how it had been applied in
relation to the applicant. There was, moreover, no supporting affidavit from any
employee of Ontec Systems (Pty) Ltd, indicating that he or she had been involved in
the monitoring undertaken by the respondent and was able to confirm the inferences
drawn therefrom; alternatively, that the respondent’s employees were suitably
qualified or trained to do so themselves.
[23] The applicant has, admittedly, failed to address the technicians’ discovery on
10 March 2025 that it had consumed 749 units during the 18 -day period of
disconnection. It stated in reply that it was ‘unclear’ who had reconnected the supply.
The probabilities are that the applicant did so itself after it obtained interim relief on 7
March 2025 and that the consumption reflected three days’ supplementation of its
solar energy by the municipal electricity supply. Whereas this would possibly have
amounted to an unauthorized reconnection, it was by no means evidence of
tampering. Furthermore, it was never a factor that informed the respondent’s
decision to disconnect the applicant in the first place.
[24] The respondent’s contention that the applicant’s unauthorized reconnection
and its previous tampering with the meter demonstrated a propensity for illegal
and its previous tampering with the meter demonstrated a propensity for illegal
conduct simply carries no weight. From the applicant’s replying papers, it is apparent
that it believed (albeit wrongly) that the order for interim r elief entitled it to carry out
its own reconnection; it explained, moreover, that a lessee had tampered with the
meter, resulting in her ejectment. The applicant’s payment of the substantial penalty
imposed by the respondent would undoubtedly have served a s a deterrent, rather
than an encouragement for the applicant to have attempted anything similar.
[25] In Zuma v City of Tshwane Metropolitan Municipality and Another ,9 Domingo
AJ observed that the evidential burden of proving tampering in accordance with the
relevant By-law rested on the respondent municipality.10 The same principle operates
in the present matter. There is, in the end, no evidence from the respondent’s papers
that the applicant tampered with either the supply or the meter itself. Applying the
principles set out in Stellenbosch Farmers’ Winery Ltd and Plascon-Evans Paints
Ltd, the respondent’s contentions in this regard are so clearly untenable and so
palpably implausible as to warrant their rejection. There was no factual basis upon
which the respondent was entitled to have disconnected the applicant’s supply.
Constitutionality of the policy and by-laws
[26] The applicant seeks, in relation to its Credit Control and Debt Collection
Policy, as well as the corresponding By -law, a declaration of constitutional invalidity
regarding ‘all provisions . . . which contain clauses that permit disconnection without
notice’. Alternatively, the applicant seeks an order that paragraphs 7.5, 7.7, and 20 of
the Credit Control and Debt Collection Policy be declared unconstitutional. It has,
however, failed to distinguish between disconnection for non -payment and
disconnection for tampering. Regarding the former, the Constitutional Court made it
clear, in Joseph, that a pre -termination notice was required, e ven where there was
no contractual relationship between a local government service provider and the end
user.11 Regarding the latter, the position is somewhat different. In Eskom Holdings
SOC Ltd v Sidoyi ,12 the Supreme Court of Appeal dealt with the appel lant’s
disconnection of electrical apparatus that had been illegally erected and connected
to the national grid, which posed a danger to the public, but which was also being
used by consumers to obtain their supply. The respondent contended that the
used by consumers to obtain their supply. The respondent contended that the
disconnection of the apparatus amounted to administrative action and that the
appellant had, in not providing adequate notice thereof, failed to comply with the
9 2025 JDR 2154 (GP).
10 Paragraph [29].
11 Joseph, paragraphs [75] and [76]. See, too, the discussion thereof by the Supreme Court of Appeal in
Mafilika and Others v Elundini Local Municipality and Another (620/2024) [2025] ZASCA 142 (1 October
2025), paragraphs [20] to [25].
12 2019 JDR 0963 (SCA).
procedural requirements of section 3 (2) of PAJA. The court, per Wallis JA, held as
follows:
‘If Eskom was correct in saying that the supply of electricity to [the respondent’s] house was
via an unlawful connection using electrical apparatus that had been unlawfully erected and
installed, it was difficult to see how the removal of that apparatus, whic h would have the
effect of terminating the supply, could constitute administrative action as defined in PAJA.
The reason was that the definition of administrative action in s 1 of PAJA requires that the
action in question “adversely affect the rights” of t he person bringing the proceedings. If the
means of receiving a supply of electricity is an unlawful connection to the electricity network
there is no right or legitimate expectation to receive that supply of electricity.
. . . Recognising these difficulties, counsel for [the respondent] sought to argue that because
he had purchased electricity that gave him a right to a supply of electricity. That may be
correct as far as it goes, but the underlying premise is that Eskom would provide the supply
through suitable electrical apparatus installed by it or a contractor authorised by it. In other
words it would be a lawful supply. Whatever rights may accrue under PAJA to a person who
has been in receipt of an electricity supply lawfully connected and whose suppl y is at risk of
being terminated, a person who has never been in receipt of an electricity supply through a
lawful connection is situated differently.’13
[27] It is clear from Sidoyi that a person has no right to a supply of electricity via an
illegal connection to the network. Consequently, he or she no right to prior notice, as
envisaged under section 3 (2) (b) of PAJA, in relation to the termination of such
supply. The principles expressed in Sidoyi have been adopted in a spate of recent
cases.14 In SA Student Accommodation CC and Another v City of Tshwane
Metropolitan Municipality,15 Myburgh AJ confirmed that:
Metropolitan Municipality,15 Myburgh AJ confirmed that:
‘There is no requirement to give notice in the case of illegal connections. Indeed, to impose
such an obligation would, to my mind, be absurd giv en the risks which illegal connections
and the improper use of electricity pose to life, limb, and property.’16
[28] The above decisions dealt specifically with illegal connections. There is no
apparent reason, however, why a supply obtained through tamper ing with the meter
13 Paragraphs [15] to [16].
14 See, for example, 39 Van Der Merwe Street Hillbrow CC v City of Johannesburg Metropolitan
Municipality and Another 2023 JDR 3278 (GJ), paragraph [29]; and Metier Mixed Concrete (Pty) Ltd v
Johannesburg Water SOC Ltd and Others 2024 JDR 2926 (GJ), at paragraph [18].
15 2024 JDR 4093 (GJ).
16 Paragraph [16].
or other equipment of the service provider should not fall under the same category.
The Concise Oxford Dictionary defines ‘tamper’ as ‘[to] interfere with (something)
without authority or so as to cause damage’. 17 The unlawfulness of the activity is
apparent from the definition itself. It is self -evident that a consumer’s unauthorized
interference with the meter or other equipment of a service provider such as the
respondent in the present matter, resulting in damage thereto and the evasi on of
payment for the supply received, amounts to an illegal connection. It would be
unreasonable, moreover, to expect a municipality to provide a consumer with the
type of pre -termination notice envisaged under section 3 (2) (b) of PAJA and
described in Joseph,18 especially where the tampering or interference has created a
real risk of harm to person or property. This is particularly so in areas of high urban
densification where there is an increased danger of fatal injury to residents or
damage to dwellings cause d by fires resulting from illegal connections. The
consumer has no right to a supply of electricity obtained via an illegal connection; he
or she has, moreover, no right to a pre-termination notice.
[29] It is necessary to point out that the respondent ma y well be required to give
prior notice in certain circumstances. For example, to avoid delictual liability, the
respondent would be well -advised to give prior notice where it foresees or ought to
foresee that a disconnection will cause direct harm to a co nsumer, notwithstanding
the illegal nature of the supply.
[30] Overall, the relevant empowering provisions of the policy or by -law must be
interpreted restrictively. In Xhosana v King Sabata Dalindyebo Municipality ,19
Goosen J (as he was then) emphasized t hat it was appropriate to construe strictly
the powers conferred by the respondent’s Electricity Supply By -law. Such a
construction would be consistent with the constitutional and statutory obligations
construction would be consistent with the constitutional and statutory obligations
imposed on municipalities to deliver municipal service s, including electricity.20 In the
present matter, paragraph 16 of the respondent’s Credit Control and Debt Collection
Policy permits the immediate disconnection of supply where, inter alia, tampering
17 J Pearsall (ed) The Concise Oxford Dictionary (OUP , 10ed revised, 2001), 1462.
18 Joseph, paragraph [61].
19 2014 JDR 0533 (ECM).
20 Paragraph [16]. See Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and
Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local
Government and Housing, Gauteng and Others (Kwa-Zulu Natal Law Society and Msunduzi Municipality
as Amici Curiae) 2005 (1) SA 530 (CC), paragraphs [38] and [105].
has been detected. Similarly, section 8 (2) of the By -laws Relating to the Prevention
of Tampering with Electrical Installations and/or the Improper and/or Unauthorised
Use of Such Installations permits the immediate disconnection of supply, without
prior notice, ‘where prima facie evidence exists’ of tamperin g. To ensure alignment
with the principles already discussed in preceding paragraphs — and in accordance
with the comments made in Xhosana — it is necessary to interpret the relevant
provisions as allowing the respondent to disconnect without prior notice when there
is, at the least, a reasonable suspicion that the consumer has tampered with the
meter or the supply. There must be a factual basis for such a suspicion. None can be
said to have existed in the present matter.
Relief to be granted
[31] As the court has already found, there was no factual basis upon which the
respondent could have disconnected the applicant’s supply without prior notice.
There was no evidence of tampering. The applicant is, in that regard, entitled to
confirmation of the rule.
[32] Regarding the remainder of the relief sought, the court is satisfied that, on the
face of it, the application falls within the ambit of section 172 (1) of the Constitution,
which provides as follows:
‘(1) When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including –
(i) an order limiting the retrospective effect of the declaration of invalidity;
and
(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect.’
[33] The applicant has sought a declaration of invalidity in relation to ‘all provisions
in the respondent’s [Credit Control and Debt Collection Policy] or the Credit Control
[and] Debt Collection By-law which contain clauses that permit disconnection without
notice’. The blanket reference to the offending clauses is unhelpful. The provisions in
question have not been identified and the court has been left to second -guess what
was intended. No distinction has been made, moreover, between disconnection for
non-payment and disconnection for tampering. No evi dential foundation has been
laid for what would amount to a wide -ranging review of every clause in both the
policy and the By -law that may or may not be affected. Sensibly, counsel for the
applicant did not pursue such relief in argument.
[34] Regarding th e relief sought in the alternative, the applicant sought a
declaration of invalidity in relation to paragraphs 7.5, 7.7, and 20 of the Credit
Control and Debt Collection Policy. Whereas the policy is badly drafted, potentially
giving rise to ambiguity and confusion, the provisions in question appear to permit
the respondent to disconnect a consumer’s supply without notice in the event of non -
payment of service charges. In this regard, the relevant portion of paragraph 7.5
reads:
‘ . . . All amounts not rece ived on the full payment date will be assumed to be in arrears. All
accounts not paid on the due date and for which no arrangements for extensions have not
been made, services will be terminated on the cut-off date.’21
The contents of paragraph 7.7 read:
‘Consumers who have failed:
• to pay the service charges levied by due date, or to comply with the
conditions of supply of services do not have to be notified for intentions to
disconnect services to implement the debt collection mechanisms.’22
Finally, the relevant portion of paragraph 20 reads:
‘The Council shall ensure that:
21 Sic.
22 Sic.
• services in respect of clients in arrears after due date shall be disconnected
without warning notice, as provided for herein, is issued to the client.’
[35] Considering the prin ciples enunciated in Joseph, the above provisions are,
without a doubt, unacceptable. They do not comply with section 3 (2) of PAJA and
amount to the infringement of a consumer’s right to just administrative action. The
respondent’s implementation thereof is inconsistent with the Constitution.
[36] The only remaining issue is that of costs. Whereas the conduct of the
respondent attracts criticism, it cannot be said that it crossed the threshold for the
court to express its displeasure through a punitive cos ts order, notwithstanding the
applicant’s contentions to that effect. In this regard, the applicant’s own conduct in
relation to its reconnection to the supply, without authorization, is not beyond
reproach. In the circumstances, the general rule must appl y. Mindful of the nature of
the matter, involving the enforcement of a constitutional right, scale C would be
appropriate.
Order
[37] Considering the provisions of section 172 (1) of the Constitution, it would be
just and equitable for the following order to be made:
(a) the respondent’s disconnection of the applicant’s electricity supply on
or about 20 February 2025, without prior notice, is hereby declared
unlawful;
(b) the respondent’s implementation of paragraphs 7.5, 7.7, and 20 of its
Credit Con trol and Debt Collection Policy (2023/2024) is hereby
declared inconsistent with the Constitution to the extent that the
respondent fails to give adequate prior notice before the disconnection
of a consumer’s electricity supply in the event of non -payment for
service charges;
(c) the respondent is interdicted from charging a reconnection fee to the
applicant because of the unlawful disconnection described in
paragraph (a), above;
(d) the respondent is interdicted from unlawfully disconnecting the
electricity supply to the applicant’s premises situated at erf 2[...]
Qumrha (Komga); and
(e) the respondent is ordered to pay the costs of the application on a party-
and-party basis (scale C).
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv A Mafu
Instructed by: HUXTABLE ATTORNEYS
26 New Street
Makhanda
On instruction from:
BAX KAPLAN RUSSELL INC
34 Pearce Street
Berea
East London
(Ref: Mr B Sparg)
Tel: 043 706 8400
Email: shakeel@bkr-inc.co.za
For the respondent: Adv N Mdunyelwa
Instructed by: SHENXANE INC
87 High Street
Makhanda
On instruction from:
CLARK LAING INC
58 Jarvis Road
Berea
East London
(Ref: Ms S Chinyamurindi)
Tel: 043 721 1556
Email: sifungile@clarklaing.co.za
Date heard: 27 May 2025.
Date delivered: 14 October 2025.