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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: EL937/2025
In the matter between:
LINDELWA SIGENU- SIMANI Applicant
And
BUFFALO METROPOLITAN MUNICIPALITY 1st Respondent
THE MUNICIPAL MANAGER:
BUFFALO CITY METROPOLITAN
MUNICIPALITY 2nd Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Zono AJ:
Introduction
[1] This is an application for leave to appeal against the judgment
delivered on 05th June 2025. Aggrieved by the judgment aforesaid, the
applicant launched an application for leave to appeal, grounds of
which are recorded as follows:
“1.1 At paragraph 14 this Honourable Court found that as a result of
the opposition raised by the Respondents, that a dispute of fact is
present on the versions proffered by the parties.
1.2. This Honourable Court misdirected itself, with all due
respect, in accepting the version of the Respondents that the
purported notice was delivered in accordance with the by-
laws. This Honourable Court failed to take into consideration
that the by-laws read with the Municipal Systems Act
prescribes a specific manner of service of the notice before
accepting a notice had been delivered.
1.3 Section 115(1) of the Municipal Systems Act clearly states
that-
Any notice or other document that is served on a person in terms of
this Act or by a municipality in terms of any other
legislation is regarded as having been served, when …
1.4. The Respondents did not rely on any provision as governed by
the Municipal Systems Act and as such, the Respondents failed to
prove compliance with the provisions of the Municipal Systems
Act, and by failing to do so, failed to show delivery of the notice.
1.5 This Honourable Court incorrectly found that this constitutes a
“dispute of fact”, but rather ought to have found that there is a
legal issue for determination, in that the validity of Section
14(4)(c) is placed in question as it is in direct conflict with the
Respondents very own by- law and it is in conflict with Section
115(1) of the Municipal Systems Act.
1.6. Furthermore, this Honourable Court has recently ruled in the
matter of Babalwa Ntwanambi v Buffalo City Municipality and
Another that Yande Engineering did not have the necessary
authority to deliver notices
1.7 This Honourable Court also found in the Judgment of Ntwanambi
that the notice, itself, did not contain the requisite required
information to constitute a proper notice.
1.8. As a result, this Honourable Court ought to have accepted the
version of the Applicant in that the Respondents have failed to
show compliance with the Electricity Supply By-Laws read with
the Municipal Systems Act” (sic).
[2] During the hearing of this application both Counsels were asked if the
electricity supply has not been reconnected. Both Mr Mati and Mr Du
Plessis submitted that they had no instructions to that effect and
undertook to take instruc tions. It was agreed that they would prepare
brief written submissions in that regard and deal with how their
instructions affect the provisions of section 17(1)(b) and section
16(2)(a) of the Superior Court Act 10 of 2013. A decision in this
application and in the appeal would be of no practical effect if the
electricity supply is reconnected or reinstated. None of the parties
delivered its written submissions and no explanation had been
proffered for such failure. I pen this judgment without the be nefit of
their instructions and written submissions in this regard.
Legal Principle
[3] An application for leave to appeal is governed by Section 17(1) of the
Superior Court Act which provides as follows:
“(1) Leave to appeal may only be given where t he judge or judges concerned
are of the opinion that—
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the
matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all
the issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.”
[4] In Smith1Plasket AJA (as he then was) held that:
“7. What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court
of appeal could reasonably arrive at a concl usion different to that
of the trial court. In order to succeed, therefore, the appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote but
have a realistic chance of succeedin g. More is required to be
established than that there is a mere possibility of success, that the
case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words, be a sound, rational basis
for the conclusion that there are prospects of success on appeal.”2
[5] These sentiments were shared by Schippers AJA in Mkhitha3 where
the following was said:
“17. An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of
success on appeal. A mere possibility of success, an arguable case
or one that is not hopeless, is not enough. There must be a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[6] Paragraph 2 and 3 of the main judgment are incorporated as herein
set out. Both section 115(1)(b) of the Local Government: Municipal
Systems Act 32 of 2000 (the Act) and section 13(1)(b) of the
1 Smith v S 2012 (1) SACR 567 (SCA) Para 7.
2 S v Mabena & Another 2007 (1) SACR 482 (SCA) Para 22.
2 S v Mabena & Another 2007 (1) SACR 482 (SCA) Para 22.
3 MEC for Health, Eastern Cape v Mkhitha and another (1225) [2016] ZASCA 176 (25 November 2016)
Para 17.
Municipality’s Electricity Supply By -Law published in Provincial
Gazette Extra Ordinary No 5016 on 24 November 2023 ( the By-Law)
provide for service that affect directly this matter. Section 115(1) (b) of the
Act Provides thus:
“Any notice or other document that is served on a person in terms of this
Act, is regarded as having been served-
(a) …….
(b) When it ha s been left at that person's place of residence or
business in the Republic with a person apparently over the age of
sixteen years.
Whereas section 13(1)(b) of the By-Law is an exact replica of section
115(1)(b) of the Act, save for reference to the By -Law instead of the
Act. Another relevant provision of the By -Law is section 14(4)(b)
which provides as follows:
“14. If delivered by hand, the pre-termination notice shall be
deemed to have been effectively and sufficiently served on the
consumer-
(a) ……
(b) When it has been left at their place of residence… with a
person apparently above the age of sixteen (16) years old”.
[7] The gist of applicant’ s case is simple that she did not receive the
requisite notice or no notice was given to him prior to the alleged
disconnection. Accordingly, the applicant consequently contends that
such failure rendered the disconnection unlawful. Whilst the notice is
attached to the respondents’ papers, Phumlani Mthiyane deposed to
both service and supporting affidavits. In the service affidavit
Mthiyane alleges as follows:
“On 09 April 2025 I delivered the 14-day pre-termination letter
to 3[...] J[...] Road Morning Side, East London. There was
nobody at home so I left the letter in the post mail and took a
photo for evidence that I delivered to the correct place” (sic).
In the supporting affidavit he alleges as follows:
“9. The applicant was not at home on 09 April 2025 and so I
left the pretermination letter in the mailbox” (sic).
[8] The legislative framework adverted above does not provide for a
service by leaving a notice in the post box or mailbox. The
legislative material aforesaid p rovides, in so far as it relates to this
matter, for personal service or
“Leaving a copy at consumer’s place of residence with a person
apparently over the age of sixteen (16) years”.
Another relevant service for purposes hereof is by posting t he notice
by registered or certified mail4. Nothing is said about leaving a copy
in the postbox or mail box.
[9] Valid exercise of the public power must have a source in law. That is
the requirement of the principle of legality 5. Service of the pre -
termination notice otherwise than in terms of the applicable
Municipality’s electricity By -Laws and the Act is without lawful
basis6. A maxim of interpretation “Unius est exclusio alterius” applies
to the fac ts of this case. It means express mention of one thing is an
exclusion of the other7. Express mention of the methods of service of
the pretermination notice in the Act and the By-Law is an exclusion
4 Section 115(1) (c) of Local Government : Municipal Systems Act 32 of 2000; Section 13(!)(c ) and 14(5)
of Municipality’s By-Law- Provincial Gazette Extraordinary.
5 Lester v Ndlambe Municipality and Another 2015 (6) 283 (SCA) para 26.
6 Buffalo City Municipality and another v Mgqazana (EL1386/2023) [2024] ZAECLLC 29 (2 May 2024)
para 13.
7 Ndaba v Ndaba 2017 (1) ALL SA 33 (SCA); 2017 (1) SA 342 SCA para 51.
of any other form or method that is not specifically mentioned
therein8. I agree with Mr Du Plessis that the service referred to in the
respondents’ papers are not in compliance with the law, and therefore
unlawful. The termination of the electricity supply to the applicant’s
premises was tainted with illegality or unlawfulness.
[10] I am accordingly of the view that the appeal would have a reasonable
prospect of success. Another court would come to a different
conclusion. The full court of this Division would perfectly deal with
this appeal.
[11] In the result the following order is made:
1. The leave to appeal is granted to the full court of Eastern Cape
Division, Makhanda.
2. Costs of this application shall be costs in the appeal.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
8 Magqazana v Buffalo City Municipality and another (EL1386/2023) [2024] ZAECLLC 7 (5
March2024) para 29.
APPEARANCES:
Counsel for the Applicant : Mr Du Plessis
Instructed by : NJ Du Plessis & Associates Inc
14 Athlone Crescent
Selbone
East London
Tel: 043 740 0424
E-mail:nico@tdplaw.co.za
Ref: N. Du Plessis/ UA0279
Counsel for the 1st and 2nd
Respondent/ : Adv. Ntsepe
Instructed by : IC Clark Inc
25 St Lukes Road
Belgravia
East London
Tel: 043 743 3420
E-mail:admin@icclark.co.za
Ref: Ms P De Azevedo/cp/PDA/B26
Date heard : 22 September 2025
Date Delivered: : 09 December 2025