IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU)
Case No: 193/25
In the matter between
GREY ELEPHANT INVESTMENTS (PTY) LTD Applicant
AND
KNYSNA LOCAL MUNICIPALITY
RESPONDENT
Date of Hearing : 11 September 2025
Date of Delivering : 11 February 2026
__________________________________________________________________
JUDGMENT
__________________________________________________________________
THULARE J
ORDER
(a) the application for reconsideration is dismissed.
(b) The rule nisi is confirmed.
(c) The Knysna Local Municipality is to pay the costs, on a scale as between
attorney and client, such costs to include the costs of two counsel on scale C.
[1] There is a long standing dispute between Grey Elephant Investments (Pty) Ltd
(GEI) and the Knysna L ocal Municipality (KLM) as to outstanding rates and
service charges since 2022 . GEI contended that KLM was overcharging them .
However GEI paid what it deemed was fair and settled arrears. The dispute
escalated in GEI filing a notice of motion dealing with KLM tariff policies in rates
in case number 22365/24 which is pending. GEI disputed the amounts in the
accounts. There were also other amounts also in dispute as well as the scope and
content of a settlement. KLM contended that it was entitled to cut off electricity to
Knysna Mall (the Mall), owned by GEI. KLM cut off electricity to the Mall on 25
April 2025 at around 13H45, a Friday afternoon preceding the Freedom Day long
weekend, because of the dispute. When KLM switched off the electricity, it
affected the whole Mall and deprived retail, commercial and residential tenants , a
total of 77 including KLM s Town P lanning and Building Control Department
offices as well which were located in the Mall . The conduct for all intents and
purposes closed business at the peak period.
[2] The notice email did not come to the attention of the Municipal Manager as he
was on a flight from George en route to Johannesburg when it was served . He had
left his laptop in his office in Knysna and nobody had access to the email addresses
to which the notice was sent. The Municipal Manager was the brain behind the
disconnection. He went ahead , despite the reservations of the Mayor , which the
Mayor expressed to him, in the light of the dispute between the parties which were
known to both. The Ma yor could not reach the Municipal Manager, the Chief
Financial Officer and the Director of Corporate Services as their numbers were off,
to intervene when the power was shut off and GEI approached him. The Head of
Legal Services of KLM did not have the delega ted authority to deal with the
matter. GEI cannot be faltered to conclude that the conduct of the involved KLM
officials was engineered to cause it maximum harm with reckless disregard for the
rights of the retail, commercial and residential tenants who were not party to the
dispute with KLM.
[3] GEI approached the court on an urgent basis without an opp ortunity to file
papers, for interim relief through a rule nisi seeking the immediate restoration of
the electricity supply to the Mall on the same day, 25 April 2025. GEI led viva voce
evidence and after hearing it and its counsels submissions the order was granted.
KLM anticipated the return date and sought that the order granting the rule nisi be
reconsidered and set aside and GEI ’s application be dismissed. KLM provided
accounts to GEI under three account numbers for billing assessment rates,
electricity, water, sanitation services, refuse remova l and interest on arrear
amounts.
[4] It is common cause that GEI held the view that KLM unlawfully levied
municipal charges for electricity, water, refuse and sewerage and as such GEI was
incorrectly billed. The parties also had a dispute in respect of amounts owed under
the name of the previous owner and whether some could be recovered at all, or
from GEI . The parties are also in dispute as to whether the disconnection on 25
April 2025 related solely to the non-payment of rates and services not disputed to
be owing. The lawfulness and accuracy of the ch arges levied was ongoing dispute
and accounted for the invoices not being paid in full as presented by KLM to GEI.
What was settled by the agreement was also in dispute. GEI tendered to pay the
requisite 30% of what KLM said was due as per the Customer Care Policy, despite
its view that KLMs conduct was u nlawful. GEI engaged dispute resolution
mechanisms in the KLM Customer Care Policy to lawfully dispute the amounts it
alleged KLM incorrectly levied.
Was a Rule nisi issued
[5] It was not an issue that KLM had the right to approach the court for
reconsideration of the order. Ordinarily a court should not make an order against a
person unless that person has received proper notice of the relief to be sought
against them and they have been given an opportunity to oppose the granting of
such relief. There are, however, circumstances that allow a departure from this rule
and an ex parte application is such example, an application brought before court
without any notice given to the opposite party. An ex parte application can only
broguth in exceptional circumstances where compelling reasons exist for the party
seeking relief to approach the court without notice being given to the party against
whom the order is sought. Generally, there would also be no other interested third
party in the granting of relief, which third party should be cited in the relief sought.
The timing of the disconnection and its business implications for GEI and its
tenants as well as the probably designed unavailability of people who c ould
instruct KLM attorneys to oppose the application at the most critical time left GEI
with no option but to approach the court without notice to KLM. KLM was the
author of its own misfortune and cannot be heard to complain that it was not served
with the application. The impact of the disconnection on the conduct of business at
the Mall was sufficient for the court to grant GEI condonation for deviation from
the rules as a result of the urgency of the matter. GEI could not be afforded
sunstantial redress at a hearing in due course. A Freedom Day long weekend
contemporaneous with the end of the month was a unique business opportunity
which could not be repeated on other days.
[6] In Hulisani Viccel Sithangu v Capricorn District Municipality (593/2022)
[2023] ZASCA 151 (14 November 2023) the court said court orders are required to
be clear and unambiguous [para 16]. In para 23 the court said:
“[23] The question is whether the full court’s interpretation of the order of this Court granting
leave to appeal, is correct. The basic principles applicable to construing documents also apply to
the construction of a court’s judgment or order. The court’s intention is to be ascertained
primarily from the language o f the judgment or order as construed according to the usual, well -
known rules. As in the case of a document, the judgment or order and the court’s reasons for
giving it, must be read as a whole to ascertain its intention. It is now settled, that when
interpreting a document including a court order, the point of departure should be the language in
question, read in context while also having regard to the purpose of its provision and the
background.”
The order granted by the court was granted in the absence of KLM. GEI was
aware that GEI had to return to court on a date determined by the court to argue
that the temporary order that GEI was granted should be made final . GEI did not
apply for and was not granted a final order. It app lied for and was granted an
interim order which required the order to be served on KLM and for KLM to
anticipate the return date if it so desired. The terminology employed in the order
leaves no other under standing other than that KLM had an opportunity to give
evidence and to argue why that temporary order should not be made final.
[7] The order left no doubt that it was a provisional order. The opportunity to be
heard was afforded to KLM on the return date to demonstrate to the court why the
provisional order should not be made final . The language and the wording of the
order made it clear that there had to be return date. The context in which th e order
was granted made it clear that a return date had to be determined. KLM’s
construction of the order is opportuni stic. KLM sought to exploit the friendly,
helpful and cooperative feeling and attitude of the judge , when the judge allo wed
the parties to confer and agree on the return date, which date as agreed between the
parties would then be the return date . For KLM attorneys not to engage with GEI
attorneys to agree on a court date and then claim that in the absence of that date as
part of the order, the order is not clear, is too close for comfort. Th is is not even a
case where KLM needed to apply to court to get clarification on when the return
date was. To know the determined return date, KLM simply needed to agree to one
with GEI, as the court order envisaged the return date. Nothing suggests that the
parties failed to agree on a return date. There is no absence of clarity or ambiguity.
It is important, especially in extremely urgent matters like the present, for parties to
exhibit honesty and contextual understanding. The Judge was faced with the
urgency of the applicant having to walk away from the court building with a
written court order on one hand, and the desire to ensure that especially KLM’s
attorneys had the benefit of an input in the return date. It is sad that KLM sought to
abuse the operational courtesy from the judge . This explained why KLM
anticipated it, even though opportunity overwhe lmed it and it sought t o pursu e,
anticipated it, even though opportunity overwhe lmed it and it sought t o pursu e,
find and point out minor faults in a pende ntic way. The approach of KLM to the
order was flawed. The rigidity that KLM advocates may be a hurdle to effi ciency
in extremely urgent matters which required flexibility . To advance the interests of
justice and the full participation of practitioners already invo lved in matters
especially in the determination of suitable future dates , sometimes require
proactive and creative judicial case management pronouncements.
[8] Of importance, is the clarity and absence of ambiguity in such court orders, and
in a rule nisi in particular, including the certainty of the return date for the party
that was not at court and for everyone involved. A rule nisi was issued. The rule
nisi has been favourably commented on, as regards its flexibility and utility [NDPP
and Another v Mohamed NO and Others 2003 (4) SA 1 (CC) at para 29 ]. The rule
nisi was binding until set aside [ Municipal Manager OR Tambo District
Municipality and Another v Nda beni 2023 (4) SA 421 (CC) at para 24]. It existed
in fact wih possible legal consequences [Department of Transport v Tasima (Pty)
Ltd 2017 (2) SA 622 (CC) at para 182]. It came as no surprise that when the parties
could not deal with the matter hot on the heels of the court order, KLM agreed to
the extension of the rule nisi. The order was not an unlimited rule nisi with no
return date. Even if the parties could not agree on a return date, which is not the
case here, KLM anticipated the order on two days notice.
Was a mandament van spolie the right remedy
[9] KLM submitted that GEI could not obtain an order it did through a mandanent
van spolie. In Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA) at para
22 it was said:
“[22] As was pointed out in Zulu, the occupier of immovable property usually has the benefit of a
host of services rendered at the property. However, the cases that I have dealt with above
graphically illustrate how, in the context of a disconnection of the supply of such a service,
spoliation should be refused where the right to receive it is purely personal in nature. The mere
existence of such a supply is, in itself, insufficient to establish a right constituting an incident of
possession of the property to which it is delivered. In order to justify a spoliation order the right
must be of such a nature that it vests in the person in possessi on of the property as an incident of
their possession. Rights bestowed by servitude, registration or statute are obvious examples of
this. On the other hand, rights that flow from a contractual nexus between the parties are
insufficient as they are purely personal, and a spoliation order, in effect, would amount to an
order of specific performance in proceedings in which a respondent is precluded from disproving
the merits of the applicant's claim for possession. Consequently, insofar as previous cases may be
construed as holding that such a supply is in itself an incident of the possession of property to
which it is delivered, they must be regarded as having been wrongly decided.”
In Ngqukumba v Minister of Safety and Security 2014 (5) SA 112 (CC) at para 21 it
was said:
“[21] Possession of the vehicle by the applicant pursuant to its return in terms of a court order
would be unlawful only if it were established that he did not have lawful cause to possess it. That
is a conclusion that can only be reached after an enquiry into the facts surrounding the applicant's
possession. Before that enquiry, one is not in a position to say the applicant's possession of the
vehicle will be unlawful — it may or may not be, depending on the result that the enquiry would
yield. The question that arises is: in proceedings for a spoliation order, is it proper to hold that
enquiry? I say not. That would be enquiring into the merits of the lawfulness of the applicant's
possession. Those merits are irrelevant in proceedings for a spoliation order : the despoiler must
restore possession before all else . Self -help is so repugnant to our constitutional values that
where it has been resorted to in despoiling someone, it must be purged before any enquiry into
the lawfulness of the possession of the person F despoiled. Earlier I made the point that
restoration of possession may even be to a person who might eventually be shown to be a thief or
robber. The return to the applicant of the tampered vehicle, which may be possessed lawfully, is
no different.”
[10] GEI was in possession and was wrongly deprived of that possession against its
wishes and had a right to be restored in possession ante omnia [Scoop Industries
(Pty) Ltd v Langlaagte Estate and GM Co Ltd (In Vol Liq) 1948 (1) SA 91 (W). No
one is permitted to dispossess another forcibly or wrongfully and against his
consent of the possession of the property and if he does so, the court will
summarily restore the status quo ante as a preliminary to any investigation into the
merits [Nino Bonino v De Lange 1906 TS 120]. The remedy is meant to preserve
orderly judicial processes and does not secure any substantive rights . In
considering the requisites of possession in the context of mandament van spolie as
a remedy, the Court should consider inter alia the question whether the relationship
between the person deprived and the thing was such as to require protection in the
interests of public order [Ross v Ross 1994 (1) SA 865 (SE) at 870D]. As indicated
in Ngqukumba the subject of the act of spoliation must be restored to the party
from whom it was taken irrespective of the question as to who is entitled in law to
be in possession of such property. It was not open to KLM to utilize a dispute
between them and GE I as the basis on which to termina te the electricity supply to
the Mall and its tenants.
[11] Unresolved disputes are pending and the substance of the dispute forms part of
the review application in which the parties were involved . KLM cannot use
disconnecting electricity as a strategy to enforce payment notwithstanding yet to be
determined disputes. The disputes between KLM and GEI are to be determined by
the review pending review application which includes the application of the Tariff
Policies of KLM. Disconnection cannot be used to gain some undue tactical or
strategical advantage to pending litigation . KLM did not complain about urgency
or that there was no imminent harm . The established principle is that in order to
justify a spoliation order the right must be of such a nature that it vests in the
person in possession of the property as an incident of their possess ion [Masinda
para 15]. Depending on the circumstances, the supply of electricity may be
recognized as an incorporeal right, the possession of which is capable of protection
under the mandament van spolie [Masinda para 14]. KLM was obliged to provide
electricity to GEI [ Mkontwana v Nelson Mandela Metropolitan Municipality and
Another; Bisset and Others v Buffalo City Municipality and Others; Transfer
Rights Action Campaign and Others v LEC, Local Government and Housing,
Gauteng and Others (KwaZulu-Natal Law Society and Msunduzi Municipality and
Amici Curia e) 2005 (1) SA 530 (CC) at para 38; Joseph and Others v City of
Johannesburg and Others 2010 (4) SA 55 (CC)].
[12] In Joseph at para 34 was said:
“The 'right' to receive electricity as a basic municipal service
[34] The provision of basic municipal services is a cardinal function, if not the most important
function, of every municipal government. The central mandate of local government is to develop
a service delivery capacity in order to meet the basic needs of all inhabitants of South Africa,
irrespective of whether or not they have a contractual relationship with the relevant public -
service provider. The respondents accepted that the provision of electricity is one of those
services that local government is req uired to provide. Indeed they could not have contended
otherwise. In Mkontwana Yacoob J held that 'municipalities are obliged to provide water
and electricity to the residents in their area as a matter of public duty '. Electricity is one of the
most common and important basic municipal services and has become virtually indispensable,
particularly in urban society.”
The court in Joseph made it clear that the obligations of local government, like
The court in Joseph made it clear that the obligations of local government, like
KLM, includes to provid e basic municipal services including electricity and that
those obligations derived from the objects of local government in section 152 of
the Constitution and the developmental duties of municipalities set out in section
153 of the Constitution rad with t he relevant provisions of the Municipal Systems
Act. GEI is also correct to draw in the Electricity Regulation 4 of 2006 (the ERA)
into the equation, as containing provisions that give effect to the constitutional duty
of municipalities to supply electrici ty to their residents. From the statutory and
constitutional provisions, GEIs right to electricity is not based solel y on the
contractual right but is also underpinned by the constitutional and statutory
provisions [In City of Cape Town v Strumpher 2012 (4) SA 207 (SCA) at para 10].
At para 15 in Strumpher the court held that the insistence of a Municipality on
payment when a debtor was involved in a dispute with the Municipality over the
amounts allegedly due, flew in the face of fairness and equity. The mandament van
spolie was the appropriate remedy under the circumstances.
[13] KLM cannot be allowed to wield its power and force its residents to pay
contested accounts, without following statutory provision to resolve those disputes.
KLM must deal with the underlying disputes and resolve them. Where the
processes are already underway and litigation is pending, KLM must r espect
judicial proceedings instead of taking obfuscatory approaches . It ’s taking of
spurious and rejected arguments as jurisprudence relied upon is worrying. KLM
must trad carefully when it deals with rights and cannot be a bewildered litigant.
For these reasons I make the order.
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DM THULARE
JUDGE OF THE WESTERN CAPE