SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 35928/2022
X
In the matter between:
LOUIS GUSTAVUS TRICHARDT WESSELS
(Identity Number: 3[...])
Applicant
And
THE CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
First Respondent
THE MUNICIPAL MANAGER:
TSHWANE METROPOLITAN MUNICIPALITY
Second Respondent
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
---21/08/2025--------------- -----------------------------------
DATE SIGNATURE
l
In Counter-Application
THE CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
First Applicant
THE MUNICIPAL MANAGER:
TSHWANE METROPOLITAN MUNICIPALITY
Second Applicant
And
LOUIS GUSTAVUS TRICHARDT WESSELS
(Identity Number: 3[...])
Applicant
JUDGMENT
TD SENEKE, AJ
INTRODUCTION
1. The applicant brought an application to seek the following orders:
“1. That the first and second respondents are in contempt of the Court
Order of the Honourable Justice Kooverjie J made on 21 October
2022 under case number: 35928/2022;
2. That the first and second respondents are ordered to purge their
contempt of the Court Order dated 21 October 2022 within 5 days of
service of this Court Order;
3. In the event the first and second respondents fail to purge their
contempt o f the Court Orde r dated 21 October 2022, the applicant
may approach the Court on the same papers filed in respect of this
application and seek the following relief:
3.1 That a fine, such as is deemed appropriate by the above
Honourable Court, be imposed on the first and second
respondents in regard to such contempt;
3.2 That a period of imprisonment, such as is deemed appropriate
by this Honourable Court, be imposed on the second respondent
by the above Honourable Court, such period of imprisonment to
be suspended on conditions deemed appropriate by this
Honourable Court;
3. That the cost of this application on the scale as between attorney and
client be paid by the first and second respondents jointly and
severally, the one paying the other to be absolved.”1
2. The respondents brought a counter-application to seek the following orders:
“1. The court order granted by the Honourable Justice Kooverjie J on 21
October 2022 under case number 35928/2022 is rescinded and set
aside;
2. It is declared that the court order is invalid, unlawful, void ab initio and
unenforceable;
3. The delay in the filing of the rescission application is condoned;
4. The delay in the filing of the answering affidavit is condoned.”2
ISSUES TO BE DETERMINED
3. Whether the first respondent (City of Tshwane) has made a case for a
rescission of the order granted by Judge Kooverjie on 21 October 2022.
1 Caseline 02-1 to 02-4
2 Caseline 07-4 to 07-7
4. Should the rescission application be unsuccessful, the Court will be required to
determine whether the respondents are in contempt of the order granted by
Judge Kooverjie on 21 October 2022.
5. If i t is found that the respondents are in contempt of court, whether the
applicant is entitled to an order direc ting the respondents to purge their
contempt of court.
BACKGROUND
Counter-Application3
6. The applicant is the registered owner of four (4) immovable properties ( “Units”),
namely:
6.1. Unit 5[...] [Municipal Account Number: 5[...]]
6.2. Unit 5[...]2 [Municipal Account Number: 5[...]2]
6.3. Unit 5[...]2 [Municipal Account Number: 5[...]3]
6.4. Unit 6[...] [Municipal Account Number: 5[...]4]4
7. The units are all situated within the Sectional Title Scheme known as SS Clara-
Berea with scheme number 349/1985, w ith address at 1[...] C[...] Street, Berea
Park, Pretoria, which h ave been leased to tenants who currently occupy the
units.5
8. During or about March 2019, the municipal accounts relating to the electricity
consumption of the four ( 4) units were in arrears due to non -payment.
3 Caseline 07-5
4 Caseline 07-14
5 Caseline 07-14
Subsequently the electricity supply to the units was disconnected by the
Municipality.6
9. Mr Schultz, an employee of the Body Corporate of SS Clara -Berea Complex
illegally reconnected the electricity supply.7
10. As a consequence of the illegal reconnection of the electricity, the Municipality
then imposed RIP charge penalties for March 2019, up to and including June
2019, in the amount of R18 819,00 excluding VAT for each month.8
11. Subsequent to the meeting held on 23 August 2021, the Municipality informed
the applicant by email, which the applicant refers to as the administrative
action/decision, of the following:
11.1. That the RIP penalties were fair and levied in terms of the approved
tariffs as published by NERSA and the Municipal Council as gazetted;
11.2. The conduct of reconnection was unlawful and constituted a criminal
offence;
11.3. The Municipality acknowledges the fact that it was Mr Schultz who
caused the illegal reconnection on his own initiative, however , Mr
Wessels must take legal action against Mr Schultz; and
11.4. That the RIP Charges remained enforceable.9
12. On 24 August 2021, Judge Kollapen granted an order in terms of the relief
sought by the applicant to restore the utilities of the applicant, interdicting the
first and second respondents from terminating the utilities until such time as the
6 Caseline 07-14 to 07-15
7 Caseline 07-15
8 Caseline 07-15
9 Caseline 07-16
outcome has been presented to the applicant or pending any final outcome of
the appeal in terms of section 62 of Act 32 of 2000.10
13. On 13 September 2021, following the decision by the Municipality, the
Applicant lodged his Appeal in terms of Section 62.11
14. The City did not provide the applicant with an outcome of the section 62
appeal.12
15. On 5 July 2022, the applicant approached this Honourable Court for the
purposes of setting aside and reviewing the “administrative decision” taken by
the first respondent on 23 August 2021 and that the Municipality removes the
penalties and charges debited to the accounts for the alleg ed illegal
consumption and reconnection of the electricity (“the review application”).13
16. The primary basis which the applicant relied on in bringing the review
application is the following:
16.1. The municipality’s failure to take a decision in terms of section 62 of the
Municipal Systems Act justifies an exemption to exhaust any further
internal remedies: and
16.2. That the decision by the Municipality to charge RIP fees for the illegal
reconnection should be set aside on the basis that he as the owner of
the units should not be charged such fees, because the illegal
reconnection was done by the caretaker, Mr Schultz, without his
knowledge.14
10 Caseline 07-17
11 Caseline 07-17
12 Caseline 07-17
13 Caseline 07-17
14 Caseline 07-17 to 07-18
17. The review application was not opposed, which consequently led to an order by
Justice Kooverjie thus reviewing the decision of 23 August 2021 and removing
the penalties and/or associated charges, debited to the accounts for the illegal
consumption or reconnection of electricity within 30 days from dat e of service
of the Court Order.15
CASE FOR THE APPLICANT S (RESPONDENTS IN THE CONTEMPT OF COURT
CASE)
Rescission Application
The City of Tshwane states that:
18. Based on the legislative prescripts referred to above, it is submitted that if the
Court Order of Justice Kooverjie is allowed to persist, that this would have a
direct negative impact on it to deliver on its legal mandate in respect of service
delivery to its clients, to collect revenue and in general to meet its objects as
provided for in section 152 of the Constitution of the Republic of South Africa.16
19. In the review application, the primary basis for the applicant denying that he is
liable for the rip fees was that he is not what is termed a “consumer” as defined
by the by-laws because he is not an occupier of the units. He, however, fails to
demonstrate that an “occupier” in relation to any premises, in the case of the
premises being subdivided and let to lodgers or tenants, the person who
receives the rent payable by the lodgers or tenants, whether on his or her own
account or as an agent for another person entitled to or interested in the rent.17
15 Caseline 07-18
16 Caseline 07-21 to 07-22
17 Caseline 07-22
20. By virtue of the above empowering provisions, it is inappropriate for the
applicant to escape liability of the RIP fees on the basis that he did not
specifically cause the illegal connections.18
21. It has a valid agreement with the owner and thus the applicant remains
responsible for the charges on the electricity account. It follows then that it is
not competent for the owner to have argued that the penalties charged should
not be charged because he did not commit the offence personally.19
22. It is further submitted that given that the illegal reconnections were not
disputed, and the penalty fees were imposed in compliance with NERSA and
Council approved tariffs, and having not received any further internal
instructions, the Credit Control and Debt C ollection department did not remove
the rip fees from the account.20
Basis of the rescission
Reasonable explanation for the default
The City of Tshwane contends that:
23. Despite several inter -departmental communications between the Legal
Department and Credit Control and Debt Collection department, no instructions
to proceed to oppose the main review application was received by the Legal
Department, and thus the Municipality made no appearance.21
24. It operates through its departments and th e functionaries within the respective
departments. Without the proper authorisations to proceed , the Legal
18 Caseline 07-22
19 Caseline 07-22
20 Caseline 07-22
21 Caseline 07-24
Department which is empowered to oppose any legal action, would not have
been able to appoint legal representation in order to contest the matter.22
Bona fide defence
25. The City of Tshwane contends that the review application did not make out a
proper case for the relief sought. The applicant argues that he did not illegally
connect the electricity, however the by-laws makes it clear that the owner is
responsible for such connections to his units, as the contract is entered into
between the owner and the Municipality, and not with the tenants.23
26. The applicant further argues that the penalties were exorbitant and as a result
unreasonable. The penalties were imposed in accordance with NERSA
regulation and the Municipality’s Credit Control and Debt Collection Policy, and
it is humbly submitted that there is no legal basis on which this argument by the
applicant can be sustained.24
Rule 42(1) erroneously made
The City of Tshwane contends that:
27. The applicant misled the Court in his narrow interpretation of section 30 of the
by-laws that he must not be charged for the illegal connection of the electricity
as he is not a “consumer using the supply ” and further takes the definition of
“consumer” to mean occupier but fails to provide the definition of “occupier”,
which has been defined above, in terms of the bylaw.25
22 Caseline 07-22
23 Caseline 07-25 to 07-26
24 Caseline 07-26
25 Caseline 07-27
28. The applicant did not demonstrate to th at Court that the Municipality relied
upon the Municipal By -laws, the Systems Act and NERSA regulations, to
institute the penalties upon the Applicant.26
Condonation
The City of Tshwane contends that:
29. On 14 July 2022 , it allocated the application to its internal legal advisor in
Group Legal and Secretariat Services and same sent to Finance Credit Control
and Debt Collection for instructions to proceed with the matter.27
30. On 22 July 2022 , an electronic message was sent to Finance Credit Control
and Debt Collection for instructions. No instructions were received.28
31. It could not oppose the review application.29
32. On 21 November 2022, Madam Justice Kooverjie granted the applicant the
order.30
33. On 25 January 2023, it received the contempt of court and sent same to
Finance Credit Control and Debt Collection for instructions.31
34. On 26 January 2023 , an instruction was given to Majang Attorneys to oppose
contempt of court application. On the same day , Majang Attorneys Inc
acknowledged receipt of the instructions to oppose the contempt of court
26 Caseline 07-27 to 07-28
27 Caseline 07-28
28 Caseline 07-28
29 Caseline 07-28
30 Caseline 07-28
31 Caseline 07-28
application and briefed counsel who advised it to rescind the Order of Madam
Justice.32
35. With regards to the filing of the answering the affidavit , it is noted that the
notice of intention to oppose the contempt of court application was served on
the 30th of January 2023 and the answering affidavit ought to have been filed
on or before the 20 th of February 2023. It is anticipated that the answering
affidavit should be served and filed on or before the 15 th of May 2023. As such
a delay of 41 days is not excessive. It is submitted that the reason for the delay
is because despite several inter -departmental communications between the
Legal Department and credit control it has been difficult to arrange
consultations and acquiring documents necessary to substantiate the
respondents’ case in the answering affidavit.33
36. It is submitted that it is appropriate and in the interest of justice that these
issues be dealt with through this counter application.34
37. In the event that it is found that there was an unreasonable delay, it is
submitted that such delay stands to be con doned, having regard to the
interests of justice and the public importance of the matter.35
38. It is thus necessary that the merits of the matter be determined based on full
facts and correct pronouncement of the law. This application seeks to ensure
that the rule of law is upheld, and that the Municipality exercises its powers in
accordance with the empowering provisions.36
Prospects of Success
32 Caseline 07-29
33 Caseline 07-29
34 Caseline 07-29
35 Caseline 07-29
36 Caseline 07-29 to 07-30
39. The City of Tshwane contends that it has good prospects of success in this
matter, particularly having regard to the legislative scheme and the absence of
legal foundation for the orders made in the court order by justice Madam
Justice Kooverjie.37
Prejudice
The City of Tshwane states that:
40. It will suffer great prejudice if the late filing of the rescission application and the
late filing of the answering affidavit are not condoned whereas the applicant will
not suffer any prejudice.38
41. By condoning the late filing of the rescission applicati on and the answering
affidavit, the court will ensure that all the issues pertaining to this matter are
placed before it and are properly ventilated based on the correct legal
principles, thus the interests of justice served.39
42. This matter relates to important matters relating to the powers and authority of
a Municipality and how Municipalities are required to exercise their
constitutional authority and to use their resources.40
43. It is submitted that it would result in a miscarriage of justice if the co urse and
scope of the Municipality's powers were to be determined without having the
benefit of its submissions.41
CASE FOR THE RESPONDENT IN RESCISSION (APPLICANT IN THE CONTEMPT
OF COURT CASE
37 Caseline 07-30
38 Caseline 07-30
39 Caseline 07-30
40 Caseline 07-30
41 Caseline 07-30
44. The only explanation provided by the respondents for their default to oppose
the Review Application is that notwithstanding several “inter-departmental
communications between the legal department and the credit control and debt
collection department” no instruction was provided to oppose the Review
Application.42
45. The respondents’ entire explanation for their default to oppose the Review
Application relates to the respondents’ own internal departments ’ failure to
provide any instructions to oppose the Review Application. The explanation is
not sufficient for the purposes of the relief sought.43
46. First of all, a decision to institute or defend litigious proceedings should be
taken by the Municipal Council of the first respondent, alternatively , the
person/committee to whom such authority has been delegated in terms of the
Systems Act.44
47. A Municipal entity, such as the respondents, constitutes a separate and single
legal entity. The respondents can therefor e not blame its own internal
departments for their failure to timeously oppose the Review Application.45
48. When considering the explanation provided by the respondents holistically, the
only inference that can be drawn is that the Judgment granted by the
Honourable Judge Kooverjie was granted in the absence of the respondents,
and by default, as a result of the wilful default, alternatively, gross negligence of
the respondents.46
42 Caseline 08-12
43 Caseline 08-12
44 Caseline 08-13
45 Caseline 08-13 to 08-14
46 Caseline 08-14
49. If the relief sought by the applicant in the Review Application was such a large
cause of concern for the respondents, they should have timeously opposed the
Review Application.47
50. Furthermore, if the respondents were truly concerned by the content of the
Order granted by the Honourable Judge Kooverjie, they should have instituted
the Rescission Application as soon as reasonably possible after the Order was
served on them on 2 November 2022.48
51. It is further noteworthy to mention that the respondents did not take any steps
to rescind the Order before the applicant instituted the Contempt Application.49
52. The only reasonable inference that can be drawn is that the only purpose of the
Rescission Appl ication is to frustrate the applicant in the prosecution of the
Contempt Application.50
53. The respondents further allege that the Standard Electricity Supply By-laws
empowers the first respondent to charge penalties on the applicant’s municipal
accounts on the basis that he is the owner of the subject properties (ie the
owner of the properties to which the electricity supply had been unlawfully
reconnected), alternatively, have entered into an electricity supply agreement
with the first respondent.51
54. In terms of section 30(2) of the Electricity Supply Bylaw, the first respondent
may hold a “consumer liable for the payment of all penalties and charges for
electricity consumed between the date on which the electricity supply to a
47 Caseline 08-15
48 Caseline 08-15
49 Caseline 08-15
50 Caseline 08-16
51 Caseline 08-16
property has been disconnected and the date on which the electricity supply to
the property has been illegally reconnected.52
55. The applicant has throughout his initial dispute, the Urgent Application, the
Section 62 Appeal, and the Review Application indicated that he did not
reconnect, instruct any person to reconnect or allow any person to reconnect
the electricity supply to the subject properties.53
56. Since the inception of the matter, the applicant informed the f irst respondent
that the electricity supply to the Subject Property was in actual fact reconnected
by Mr Schultz, being the caretaker/manager of the subject properties, without
his knowledge or consent.54
57. In light of the aforementioned, in the Review Appli cation, the applicant
unequivocally stated that he is not the “consumer”, for purposes of Section 30
of the Standard Electricity Supply Bylaw, and that the first respondent ’s
decision to charge penalties on his municipal accounts should therefore be
reviewed and set aside.55
58. The first respondent acknowledged and accepted the fact that the applicant did
not attend to the unlawful reconnection of the electricity supply to the subject
properties.56
59. Notwithstanding the aforementioned, the first respondent persi sts with its
skewed interpretation of section 30, the definition of a “consumer”, and the
52 Caseline 08-16 to 08-17
53 Caseline 08-18
54 Caseline 08-19
55 Caseline 08-19
56 Caseline 08-19
definition of an “occupier”, as contained in the Standard Electricity Bylaw, to
attribute the liability for the payment of penalties to him.57
60. The respondents failed and/or refused to timeously oppose the Review
Application. Thereafter, the respondents failed and/or refused to comply with
the order granted by the Honourable Judge Kooverjie.58
61. Notwithstanding the aforementioned, as already indicated above, section 30 of
the Standard Electricity Supply Bylaw, read with the definition of an “occupier”
and “consumer” informs that a consumer includes a “person in charge of the
premises” which includes a caretaker or a manager.59
62. In light of the fact that the applicant did not instruct any person/entity to
reconnect the electricity supply to the subject properties, had no knowledge of
the fact that the electricity supply to the properties had been disconnected or
illegally reconnec ted, including the fact Mr Schultz (the caretaker/manager of
the subject properties) admitted to illegally reconnecting the electricity supply to
the subject properties, Mr Schultz is the “Consumer” for purposes of Section 30
of the Standard Electricity Supply Bylaw.60
63. The respondents should therefore have instituted proceedings against Mr L.
Schultz to procure payment of any penalties imposed pursuant to the
provisions of Section 31 of the Standard Electricity Supply Bylaw.61
LEGAL FRAMEWORK
The Constitution of the Republic of South Africa
57 Caseline 08-19
58 Caseline 08-21
59 Caseline 08-21 to 08-22
60 Caseline 08-22
61 Caseline 08-22
64. The Municipality is an organ of state as defined in section 239 of the
Constitution of the Republic of South Africa, 1996 (“the Constitution”).
65. Section 151(3) of the Constitution provides that a municipality has the right to
govern, on its initiative, the local government affairs of its community, subject to
national and provincial legislation, as provided for in the Constitution. The
Municipality’s duty to provide services to communities is subject to its financ ial
and administrative capacity.
The Municipal Systems Act 52 of 2000
66. Section 4(1) of the Municipal Systems Act 52 of 2000 also provides that the
Council has the right to govern on its own initiative and exercise the
municipality’s executive and legislative authority.
67. Section 96(a) places a responsibility on the municipality to collect all money
that is due and payable to it, subject to this Act and any other applicable
legislation.
Standard Electricity supply By-laws
68. Section 30 of the Standard Electricity Supply By -Laws prohibits unauthorised
reconnections and states the following:
“No person other than a person whom the Municipality specifically
authorises in writing to do so may reconnect, attempt to reconnect or ca use
or permit the reconnection of the suppl y mains or service connection of an
electrical installation that has been disconnected by the Municipality.
Where an electricity supply that was previously disconnected is found to
have been reconnected illegally, the consumer using the supply is liable for
all charges for electricity consumed between the date of disconnection and
the date on which the supply was found to be reconnected and for any
other charges levied in this regard. Such a reconnection of the el ectricity
supply is deemed to be an offence in terms of section 27(2) and (3) of the
Electricity Act, 1987 (Act 41 of 1987), and makes the perpetrator guilty of
an offence and liable on conviction to a fine and/or imprisonment.”
69. Rule 31(2)(b) provides that:
“A defendant may within 20 days after acquiring knowledge of such judgment
apply to court upon notice to the plaintiff to set aside such judgment and the
court may, upon good cause shown, set aside the default judgment on such
terms as it deems.”
Reasonable explanation for default
70. In Harris v ABSA Bank Ltd Volkskas,62 the court stated that:
“[8] Before an applicant in a rescission of judgment application can be
said to be in “wilful default’’ he or she must bear knowledge of the
action brought against him or her and of the steps required to avoid
the default. Such an applicant must deliberately, b eing free to do so,
fail or omit to take the step which would avoid the default and must
appreciate the legal consequences of his or her actions.
[9] A decision freely taken to refrain from filing a notice to defend or a
plea or from appearing, ordinaril y will weigh heavily against an
applicant required to establish sufficient cause. However, I do not
agree that once wilful default is shown the applicant is barred; that he
or she is then never entitled to relief by way of rescission as he or she
has acquiesced. The Court’s discretion in deciding whether sufficient
62 2006 (4) SA 527 (T).
cause has been established must not be unduly restricted. In my view,
the mental element of the default, whatever description it bears,
should be one of the several elements which the court must weigh in
determining whether sufficient or good cause has been shown to
exist. In the words of Jones J in De Witts Auto Body Repairs (Pty) Ltd
v Fedgen Insurance Co Ltd 1994 (4) SA 705 (E) at 708G,
‘. . . the wilful or negligent or blameless nature of th e defendant's
default now becomes one of the various considerations which the
courts will take into account in the exercise of their discretion to
determine whether or not good cause is shown’.”
71. In casu, the City of Tshwane has explained that d espite several inter -
departmental communications between the Legal Department and Credit
Control and Debt Collection department, no instructions to proceed to oppose
the main review application was received by the Legal Department, and thus
the Municipality made no appearance.
72. It operates through its departments and the functionaries within the respective
departments. Without the proper authorisations to proceed , the Legal
Department, which is empowered to oppose any legal action, would not have
been able to appoint legal representation in order to contest the matter.
73. As the City of Tshwane is an organ of state that operates through its officials,
the miscommunication between the two departments was the main cause for
the failure of the City of Tshwane to defend the review proceedings. This is not
unusual with the organs of state which are run by layers of bureaucracy as has
been demonstrated in this ca se. The Court in particular is inundated with many
cases where the state organs have for one reason or another failed to defend
adverse litigation proceedings. Where an organ of state has good prospect of
success such bureaucratic mishaps should not be use d to unduly preclude the
organ of state from presenting a case before court.
74. According, I find that the City of Tshwane was not in wilful default.
Bona fide defence
75. In the Harris v ABSA Bank,63 Moseneke J stated as follows:
“[10] A steady body of judicial authorities has held that a court seized with
an application for rescission of judgment should not, in determining
whether good or sufficient cause has been proven, look at the
adequacy or otherwise of the explanation of the defau lt or failure in
isolation.
“Instead, the explanation, be it good, bad or indifferent, must be
considered in the light of the nature of the defence, which is an
important consideration, and in the light of all the facts and
circumstances of the case as a whole”.”
76. The City of Tshwane’s defence is based on the by -laws which provides that the
owner is responsible for such connections to his units as the contract is entered
into by and between the owner and the Municipality and not tenants.
77. On the other hand, the respondent in the rescission application conten ds that
he was not responsible for the reconnection. He conten ds that Mr Schultz, the
caretaker of the body corporate where his four rental units are located , must
take responsibility for the illegal reconnection.
63 2006 (4) SA 527 (T).
78. If one has regard to annexure COT1, the role of Mr Schultz is properly
explained. During the meeting held on 23 August 2019, it was explained that
Mr Shultz visited the credit control office at Tramshed, 1 st floor. He met acting
accountant, Dikeledi Nyamane on several occasions and pleaded for the
reversal of the RIP fees and acknowledge d in writing that it was he who
reconnected for he felt sorry for the tenants being without electricity in winter.
79. Ms Dikeledi Nyamane inf ormed Mr Ste rfontein that this matter was responded
to in 2019 upon the complaint logged by Mr Schultz for the transgression fees.
80. Two of the tenants settled and five refused to pay for the illegal reconnection
fees. Out of the five tenants, two of the sa me tenants were reconnected
illegally more than once.
81. Despite the imposition of RIP fees, illegal reconnections continued while the
accounts were on an arrear service accounts.
82. It was suggested that the applicant/owner rather take legal action against th e
tenants/occupants. The tenants had the benefit of having services while the
accounts were in arrears and the owner benefited by receiving the monthly rent
from his tenants.
83. The contents of COT1 were dealt with at paragraph 25 of the counter -
application by the City of Tshwane. The contents of paragraph 25 do not
accurately reflect the contents of annexure COT1.
84. In his replying affidavit, the respondent in the rescission application completely
avoids dealing with the pertinent issue of the meeting held on 23 August 2019.
85. In annexure COT3,64 the respondent attempts to shift the blame to his tenants.
In this regard, I refer to paragraph 8. However, in his answering affidavit he
does not persist with contention. Instead, he shifts the claim to Shultz.
86. It is common cause from COT1 that Schult z approached the City of Tshwane
and owned up to his role in the illegal reconnection of the electricity supply. Ms
Nyamane assisted two of the tenants to resolve the issue of the illegal
reconnection. Five other tenant s refused to pay for the illegal reconnection
fees. The five tenants who refused to pay for the illegal reconnection
compounded the situation by illegally reconnecting the electricity supply even
after the City of Tshwane had imposed RIP penalties.
87. It follows that the shifting of the blame to Mr Schultz cannot be sustained as the
sequence of the events point to the fact that after Mr Schultz took responsible
for the illegal reconnection which was resolved by Ms Nyamane. The tenants of
the respondent in the rescission application brazenly took the law into their own
hands and illegally reconnected the electricity supply despite the fact that RIP
penalties were already in place. The conduct of the tenants amount to acting
with impunity and disregard to the orderly running of the City of Tshwane.
88. Accordingly, I come to the conclusion that the City of Tshwane has a bona fide
defence.
89. With the benefit of the full record and proper ventilation of the review, the court
of review might find that the respondent in the rescission application is a
consumer and an occupier in terms of section 30 of the by-laws.
90. The court held in Mkontwana v Nelson Mandela Metropolitan Municipality65 that
(paragraph 41):
64 Caseline 07-42 to 07-45
“It is self -evident that the exact character of the relationship between the
owner and the consumption charge will vary depending on whether the
property is occupied by the owner, a tenant, a usufructuary, a fiduciary or
an unlawful occupier. However, ther e is a level at which the owner and the
debt are usually connected or related regardless of the nature of the
relationship between the owner and the occupier and of whether the
property is lawfully occupied. This is because the owner is bound to the
property by reason of the fact of ownership which…. entails certain rights
and responsibilities. Both the owner and the consumption charge are
closely related to the property and the property is always the link between
the owner on the one hand and the consumpti on charge in respect of water
and electricity provided by the municipality on the other.”
91. At paragraph 53 of Mkontwana:
“The relationship between the owner and the consumption charge is so close
as to justify a reasonable expectation that the owner would choose a
responsible tenant, monitor payment by the tenant of consumption charges
that are due and ensure that the agreem ent of tenancy is appropriately
crafted. An agreement could provide, for example, that the consumption
charges must be regularly paid by the tenant, that proof of payment is given to
the owner and that eviction or other consequences would follow if there i s
non-payment. There is therefore no basis to suggest that it would be
unreasonable for the owner to bear the risk.”
Condonation for late filing of answering affidavit and counter application of recission
65 Mkontwana v Nelson Mandela Metropolitan Municipality (CCT 57/03) [2004]21 ZACC 9; 2005 (1) SA 530 (CC);
2005 (2) BCLR 150 (CC)
92. Based on Brummer v Gorfil Brothers Investments (Pt y) Ltd and Others 66 and
V.B v Van Wyk and Others, 67 the standard for considering an application for
condonation is the interests of justice. As the two cases demonstrate, it
includes:
92.1. the nature of the relief sought;
92.2. the extent and cause of the delay;
92.3. the effect of the delay on the administration of justice and other litigants;
92.4. the reasonableness of the explanation for the delay;
92.5. the importance of the issue to be raised;
92.6. and the prospects of success.68
93. The Court further emphasised, with reference to the Constitutional Court’s
decision in Grootboom, that even where a delay is excessive or inadequately
explained, the merits should not be entirely overlooked — unless the conduct is
flagrant and prejudicial. As Zondo J held: “ Where the delay is unacceptably
excessive and there is no explanation for the dela y, there may be no need to
consider the prospects of success .” However, even in such cases, the
prospects remain relevant unless the circumstances render the application
“obviously unworthy of consideration.”69
94. The Municipality sought condonation of late f iling of its answering affidavit to
the contempt application and to the late filing of the recission application.70
66 Brummer v Gorfil Brothers Investments (Pty) Ltd and Others (CCT45/99) [2000] ZACC 3; 2000 (5) BCLR 465 ; 2000
(2) SA 837 (CC) (30 March 2000)
67 V.B v Van Wyk and Others (JS43/22) [2023] ZALCJHB 109 (17 January 2023)
68 Caseline 04-65
69 Caseline 04-65
70 Caseline 04-64
95. The Municipality’s answering affidavit in respect of the contempt application is
thus 41 days late.71
96. It is crucial to reiterate that the ultimate determination of what is in the interests
of justice must reflect due regard to all the relevant factors but it is not
necessarily limited to those mentioned above. The particular circumstances of
each case will determine which of these factors are relevant.72
97. The Court in Government Printing Works v Public Service Association and
Another73 reaffirmed the balancing approach that must be adopted when
assessing whether condonation ought to be granted. At paragraph 27, the
Labour Appeal Court summaris ed the now -settled principle that “ the various
factors are to be considered collectively, and not mechanically, in determining
the interests of justice .” While no single factor is decisive, the prospects of
success remain a critical component of the inquiry.74
98. The period of delay in bringing the rescission application is just over six
months. I do not regard this period of delay as unduly exce ssive. The defense
raised b y the City of Tshwane and the interpretation of section 30 of the by -
laws raise an important issue which requires further scrutiny by the review
court. I deem the issue of the interpretation of section 30 to be in the public
interest and the interest of justice.
In the result, I make the following order:
1. The application for rescission of judgment is granted.
2. The cost will be cost in the cause of the application for review.
71 Caseline 04-64
72 Caseline 04-65
73 Government Printing Works v Public Service Association and Another (JA35/24) [2024] ZALAC 63; [2025] 2 BLLR
112 (LAC); (2025) 46 ILJ 915 (LAC)
74 Caseline 04-66
________________________
TD SENEKE AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
Appearances
For applicant : Advocate FJ Nel
Instructed by : EW Serfontein & Associates Inc
For respondents : Advocate TM Makola
Instructed by : Majang Inc Attorneys