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[2019] ZASCA 65
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Eskom Holdings Soc Ltd v Sidoyi and Others (1207/2018) [2019] ZASCA 65 (28 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 1207/2018
In the
matter between:
ESKOM
HOLDINGS SOC
LTD APPELLANT
and
SIPHELELE
SIDOYI FIRST
RESPONDENT
NOMNABHULU
MBOLEKWA SECOND
RESPONDENT
MZWANDILE
MTYOBILE THIRD
RESPONDENT
ZWELITHSA
ZOLILE FOURTH
RESPONDENT
SITHEMBISO
MATITI FIFTH
RESPONDENT
Neutral
citation:
Eskom Holdings Soc
Ltd v Sidoyi and Others
(1207/2018)
[2019] ZASCA 65
(28 May 2019)
Coram:
LEACH, WALLIS and MOCUMIE JJA and MOKGOHLOA and
WEINER AJJA
Heard
:
17 MAY 2019
Delivered
:
28 May 2019
Summary:
Electricity – disconnection of
allegedly unlawful connections and apparatus – challenge by
affected property owners
to disconnection – order sought for
restoration of electricity supply – such could only be
determined after determining
whether the disconnected supply was
lawful – dispute of fact on the papers – application
referred for the hearing of
oral evidence on the issue of the
lawfulness of the disconnected supply.
ORDER
On
appeal from:
Eastern Cape Division of
the High Court, Mthatha (Jolwana AJ, sitting as court of first
instance):
1
The
appeal succeeds, with no order for costs.
2
The
order of the high court is set aside and replaced with the following
order:
‘
(a)
The application is referred for the hearing of oral evidence on the
issue of whether the electricity installations to the applicants’
homes were lawfully installed.
(b)
The provisions of rules 33 to 39 are to
apply to the hearing of that evidence.
(c)
The deponents to affidavits are to be
available at the hearing of oral evidence for the purpose of giving
such evidence as may be
relevant in supplementation of their
affidavits and to be cross-examined.
(d)
Either party may call additional witnesses
on the issue so referred for the hearing of oral evidence, in which
event in respect
of each such witness they shall give notice of the
identity of the witness and a brief summary of their evidence not
less than
10 days prior to the hearing of the oral evidence.
(e)
The costs of this application are reserved
for decision by the court hearing the oral evidence.’
JUDGMENT
Wallis
JA (Leach and Mocumie JJA and Mokgohloa and Weiner AJJA concurring)
[1]
On 17 July 2017, in the Zwelitsha area, the
appellant, Eskom Holdings Soc Ltd (Eskom), implemented a programme of
disconnections
of electrical apparatus, such as wires, conductors and
electricity poles, that had been illegally erected and connected to
the
national grid and posed a danger to the public, but was being
used by consumers to obtain a supply of electricity. This included
the connections to a property owned by the first respondent, Mr
Sidoyi. The result of the disconnections was that Mr Sidoyi’s
tenants, who live in the twelve flats he had built on the property,
ceased to have access to electricity via a prepaid meter installed
on
the property by an unnamed contractor, who had assured Mr Sidoyi that
he was authorised by Eskom to undertake that installation.
[2]
Mr Sidoyi’s response to the removal
of the illegal installations and the consequent disconnection of any
electricity supply
to his property was to launch the present
proceedings in the Eastern Cape Division of the High Court, Mthatha.
The other respondents
instituted similar proceedings. Initially they
sought an order directing Eskom to furnish them with reasons for the
disconnection
of electricity to their premises. That was not pursued
because the reasons, namely the fact that the connections were
illegal and
dangerous, were furnished in the answering affidavits.
They pursued their applications for final relief and at this stage of
the
proceedings it was agreed that Mr Sidoyi’s case would be
taken as a test case with the result of the other cases following
upon the result of his.
[3]
The high court (Jolwana AJ) upheld Mr
Sidoyi’s claim for final relief, and the claims of the other
respondents, and granted
the following orders:
‘
1 That the termination of
electricity supply at the applicants’ premises at Zwelitsha
Administrative Area, Mqanduli be and
is hereby declared unlawful.
2 That the Respondent be and is hereby directed to
install electricity supply to the Applicants’ homesteads within
30 days
of the date of this order.
3 That the Respondent be and is hereby interdicted
and/or restrained from terminating the electricity supply to the
applicants’
premises without following due process of law.
4 That the Respondent is directed to pay the costs of
this application.’
An
application for leave to appeal was dismissed, but such leave was
granted on petition by this court.
Mr
Sidoyi’s basis for the relief
[4]
In his founding affidavit, Mr Sidoyi
alleged that he had applied for electricity to Eskom’s local
office in Mthatha in August
2014. A contractor ‘which assured
[me] that it had been authorised and was delegated by the respondent
to install electricity
onto my premises’ installed electricity
in 2015. His tenants had enjoyed the benefits of an electricity
supply since that
date and since 2015 he had purchased the
electricity from Eskom stores and shops selling electricity. The
supply was routed through
a meter on the premises operated by the
insertion of a card and he purchased electricity and had it loaded
onto the card for use
in the meter. He claimed that he had from time
to time reported faults in the supply to Eskom and its technicians
had attended
to these complaints by repairing electricity wires,
cables and/or conductors at his homestead.
[5]
The tenor of the affidavit was therefore
that Mr Sidoyi had a lawful supply of electricity to his premises and
that it had been
unlawfully disconnected on 17 July 2017, when the
team of Eskom employees arrived in the area and proceeded to cut off
cables,
conductors and wires and remove electrical poles connecting
particular premises including his own. Were that in truth the
position
his legal right to the final relief he sought and obtained
would have been beyond dispute. Summary termination of a lawful
supply,
for which the owner was paying, would be a straightforward
breach of the contractual relationship between him and Eskom.
[6]
At this point, however, the founding
affidavit took a turn in a different direction. It continued as
follows:
‘
For the reasons that follow I
submit with respect that the electricity supply at my homestead was
disconnected in an unlawful manner:
a. The respondent did not inform me in writing of the
decision to terminate the electricity supply;
b. The respondent did not give me a chance to make
representations before taking a decision to terminate the supply at
issue;
c. The respondent did not give me a clear statement of
the envisaged administrative action, namely; disconnection of the
electricity
supply;
d. The respondent did not give me notice of the right to
make a review or to lodge an internal appeal in view of its decision,
and
e. The respondent further failed to give me a notice of
the right to request reasons.’
Mr
Sidoyi then added that he did not know the reasons for the
disconnection of the electricity supply to his premises.
[7]
In dealing with his claim for final relief
Mr Sidoyi said that the disconnection of the electricity supply
adversely affected his
rights and legitimate expectations. The latter
was based upon the fact that from 2015 until 17 July 2017 he had been
able to purchase
electricity from Eskom. Mr Sidoyi invoked his right
to administrative action that is lawful, reasonable and procedurally
fair,
repeating the points already made in respect of his claim for
reasons. He alleged that it was unreasonable for Eskom to cut off
his
premises without notice and that the decision was irrational and so
unreasonable that no reasonable person could have exercised
their
powers or performed their functions in that way. Lastly he submitted
that in taking the decision Eskom took into account
irrelevant
considerations and did not consider relevant considerations. He did
not develop either of these last two points by reference
to any
facts, so that the claims of irrationality, unreasonableness, taking
irrelevant considerations into account and ignoring
relevant
considerations were not explained on any factual basis.
Eskom’s
response
[8]
Eskom’s response to these allegations
was twofold. It sought to rebut Mr Sidoyi’s claims insofar as
they were directed
at showing that his electricity connection was
lawful. It explained that his application for an electricity supply
had been for
an indigent supply limited to 20 Amps. Plainly this was
not an appropriate supply for twelve flats occupied by separate
families,
all making use of lights, stoves, televisions and other
electrical equipment. According to Eskom the application for this
supply
was not completed and the indigent supply programme was
discontinued in 2016.
[9]
On the basis of its records, Eskom denied
that the unidentified contractor who had made the connections to Mr
Sidoyi’s home
was approved or authorised by it and pointed out
that neither a certificate of compliance, nor an installation
certificate, had
been provided. Mr Kandhai, who deposed to the main
answering affidavit, said that the unlawful connections had first
been identified
and thereafter removed. They had all been checked and
found to be illegal and not meeting the requirements of a proper
connection.
All of them constituted a danger to the public. Mr
Khandai had not been present when this was done but his affidavit was
accompanied
by a brief and formal confirmatory affidavit by Ms
Dyalvane, an electrician, and another rather fuller affidavit by Mr
Makhonza,
a security officer, who were among those dealing with the
disconnections. Apparently Ms Dyalvane had undertaken a prior
inspection
on 13 July 2017 in which she identified the illegal
connections on the basis of incorrect pole sizes; lack of stays;
poles with
incorrect foundations; poles without Eskom tags;
conductors of the incorrect size and height; and wires not conforming
to specifications.
[10]
Eskom accepted that Mr Sidoyi was reflected
on its system as a legal purchaser and consumer of electricity. Mr
Kandhai said somewhat
cryptically that Eskom ‘accordingly …
knows … that the electricity was drawn through the meter
installed at
Applicant’s property’. It is unclear whether
this meant that Eskom was aware that there was a meter on the
affected
premises and that electricity was being supplied to it,
notwithstanding the alleged unlawfulness of the connection, or
whether
it meant that they were aware that Mr Sidoyi was buying and
using electricity, but were unaware until they received the
application
that it was being used through a meter at the premises
relevant to the present case.
[11]
Mr Kandhai said that on 14 July 2017 a
community meeting had taken place facilitated by the local councillor
for the area, Cllr
Mlotywa, at which the community expressed
dissatisfaction over interruptions in supply caused by overloading of
transformers as
a result of illegal connections. Concerns were also
expressed over safety issues arising from people climbing up poles
and other
dangers that illegal connections posed, especially to
children. Apparently there had been deaths as a result of illegal
connections.
[12]
Eskom’s second response to Mr
Sidoyi’s claim for relief was to say that it was under a duty
to remove illegal installations
that posed a danger to the public. It
relied upon the obligations imposed by Regulation 7(7) of the
Electrical Installations Regulations
promulgated in terms of the
Occupational Health and Safety Act 85 of 1993
.
[1]
That read:
‘‘
If an inspector, an
approved inspection authority for electrical installations or
supplier has carried out an inspection or test
and has detected any
fault or defect in any electrical installation, that inspector,
approved inspection authority for electrical
installations or
supplier may require the user or lessor of that electrical
installation to obtain a new certificate of compliance:
Provided that
if such fault or defect in the opinion of the inspector, approved
inspection authority for electrical installations
or supplier
constitutes an immediate danger to persons, that inspector, approved
inspection authority for electrical installations
or supplier shall
forthwith take steps to have the supply to the circuit in which the
fault or defect was detected, disconnected
…’
[13]
Mr Kandhai said that Ms Dyalvane was an
inspector in terms of these regulations and that she had made the
determination that the
installations posed an immediate danger. She
deposed to an affidavit confirming this. In reply Mr Sidoyi denied
her status as an
inspector; that she had made an inspection or a
determination of immediate danger; that the equipment giving his
premises access
to electricity suffered from any defects or posed an
immediate danger to anyone; or that Ms Dyalvane was entitled to
demand a compliance
certificate from him.
The
issues
[14]
The affidavits were couched on the
basis that the removal of the allegedly illegal apparatus constituted
administrative action,
but had been undertaken without complying with
the procedural requirements in
s 3
of PAJA.
[2]
Eskom initially approached the matter on the basis that the removal
constituted administrative action in the light of the Constitutional
Court’s decision in
Joseph
.
[3]
At the outset of the hearing before us, however, its counsel raised
the issue of whether this concession was correctly made. There
was a
fundamental difference between this case and
Joseph
,
in that the applicants in that case were undoubtedly receiving a
lawful electricity supply from the city. Here the case for Eskom
was
that the supply being used was received via unlawfully connected
apparatus that posed a danger to members of the public in
the area.
[15]
If Eskom was correct in saying that
the supply of electricity to Mr Sidoyi’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, which 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 the 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.
[16]
Recognising these difficulties, counsel for
Mr Sidoyi 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 supply 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.
[17]
In the result the argument before us took a
different turn. Counsel for Mr Sidoyi sought to contend that his
electricity supply
was indeed lawful and that Eskom had not adduced
sufficient evidence to show otherwise. Of course if he was correct in
that contention
there was no need to explore any of the potentially
difficult questions that would arise under PAJA if the supply were
unlawful.
In that event, Mr Sidoyi would be entitled to relief by way
of the restoration of the supply to his property by virtue of the
fact
that its removal was unlawful and in breach of the contractual
rights flowing from his purchase of electricity. If it transpired
that the supply was unlawful then that would put an end to Mr
Sidoyi’s claim for it to be restored.
[18]
In advancing the argument that the supply
was lawful, counsel relied heavily on the fact that he had been
assured that the person
who connected him to the supply was
authorised by Eskom to do so, and that he had been able to purchase
electricity and by doing
so to operate the existing meter on the
property. The mechanism of pre-paid meters is simple. Each meter has
an identification
number and the consumer is issued with a card
bearing that number that entitles them to purchase electricity. When
they do so,
whether through the internet or by approaching various
outlets such as service stations or shops that are authorised to sell
electricity,
the receipt for their payment has a numerical code that
must be entered into the meter in order to activate the supply. That
code
will only operate that particular meter. Hence, the argument
ran, the fact that the consumer was able to purchase electricity in
this way and operate the meter in their home by entering the code
demonstrated that the apparatus being used was lawful.
[19]
The force of this argument cannot be
discounted, but it was accompanied by other factors that undermined
it. For example Mr Sidoyi’s
explanation of how the supply was
installed was remarkably vague. He said that it was installed in 2015
‘by a contractor
which assured [me] that it had been authorised
and was delegated by the respondent to install electricity onto my
premises’.
The contractor was not identified and, when this
version was pertinently challenged by Eskom, he made no attempt in
his replying
affidavit to identify the installer or produce an
installation certificate. In regard to the latter he said that he was
under no
obligation to produce the certificate to Ms Dyalvane. He
denied that the electrical meter box installed on his premises was
not
supplied by Eskom, but then added: ‘Even if that was so the
point is that I had been purchasing electricity from the respondent
and the respondent admits being aware of this’.
[20]
Eskom for its part relied on the evidence
of Mr Kandhai, as supported by Ms Dyalvane and Mr Makhonza. Mr
Khandai said that, apart
from the abortive application for an
indigent person supply, Eskom’s records showed that Mr Sidoyi
had made no other application
for an electricity supply. He said that
whoever had installed the meter had not been authorised or delegated
by Eskom to do so.
Had they been, there would have been a record of
such installation and the accompanying instruction or authorisation,
but there
was none. He also relied on the supporting affidavits for
the proposition that the relevant installation did not meet the
standards
of an authorised installation. He drew attention to the
absence of a certificate of compliance and an installation
certificate.
[21]
The supporting affidavits left much to be
desired in their description of the unlawful installation. One would
have expected Eskom
to have ensured that, as it undertook the
programme of disconnections, it would have made a record of every
item removed, the place
from which it had been removed and the
reasons for its removal. In a day and age when virtually everyone
carries a phone with a
capacity to take photographs such a record
could have been supported by photographic evidence. Instead the
affidavits simply contain
the bare statements that Ms Dyalvane had
done an inspection prior to the disconnections and identified all
unlawful installations
and that these were the installations that
were removed. There was express confirmation from Mr Makhonza that
everything removed
was unlawful and posed a danger to the public, but
as his function was to head the security aspect of the operation it
was unclear
on what basis he was qualified to make these statements.
[22]
Despite the criticisms of the evidence on
behalf of Eskom it cannot, in the light of the
Plascon-Evans
rule, be rejected out of hand on the
papers. The result is that there was a clear dispute of facts on the
papers as to the lawfulness
of the installation to Mr Sidoyi’s
property. We were asked if that was our conclusion to set aside the
high court’s
order and remit the case with a direction that it
be referred for the hearing of oral evidence on the central issue of
the lawfulness
of the installation. I agree that this was the correct
order for us to make. Rule 6(5)
(g)
of the Uniform Rules provides that if a case cannot be properly
determined on the papers the court may make such order as is
appropriate
for its resolution including an order for the hearing of
oral evidence. It is a great pity that the judge in the high court
did
not identify the issue of illegality and refer it to oral
evidence. Had he done so the evidence would by now have been heard
and
the issues in the case finally resolved.
[23]
In the light of this conclusion it is
unnecessary for me to deal with the issues raised by the order
granted by the high court.
They required Eskom to install an
electricity supply to the homesteads of each of the respondents
within thirty days of the court
order. That seemingly overlooked the
fact that if the existing connection had been effected unlawfully the
effect of the implementation
of the order would have been to compel
Eskom to replace an unlawful supply not installed by it, with a
lawful supply. It is unclear
on what basis that could ever be a
legitimate order for a court to make. It highlighted the simple point
that the case could not
be resolved without determining at the outset
the issue of the lawfulness of the disconnected installation and that
once that had
been resolved that would resolve the entire case.
[24]
In the result the following order is made:
1
The
appeal succeeds, with no order for costs.
2
The
order of the high court is set aside and replaced with the following
order:
‘
(a)
The application is referred for the hearing of oral evidence on the
issue of whether the electricity installations to the applicants’
homes were lawfully installed.
(b)
The provisions of rules 33 to 39 are to
apply to the hearing of that evidence.
(c)
The deponents to affidavits are to be
available at the hearing of oral evidence for the purpose of giving
such evidence as may be
relevant in supplementation of their
affidavits and to be cross-examined.
(d)
Either party may call additional witnesses
on the issue so referred for the hearing of oral evidence, in which
event in respect
of each such witness they shall give notice of the
identity of the witness and a brief summary of their evidence not
less than
10 days prior to the hearing of the oral evidence.
(e)
The costs of this application are reserved
for decision by the court hearing the oral evidence.’
_______________________
M J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellant: T J M Paterson SC
Instructed
by: Makaula Zilwa Inc, Sandton
Matsepes
Inc, Bloemfontein
For
respondent: L Matotie (with him D Sikoti)
Instructed
by: SR Mhlawuli & Associates, Mthatha,
Maduba
Attorneys, Bloemfontein.
[1]
GN 242,
GG
30975 of 6 March 2009.
[2]
The
Promotion of Administrative Justice Act 3 of
2000
.
[3]
Joseph v City of Johannesburg
[2009]
ZACC 30
;
2010 (4) SA 55
(CC).