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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025-226981
( 1) REPORT ABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED.
DATE
MPACT (PTY) LIMITED & OTHERS
MPACT OPERATIONS (PTY) LTD
MPACT PLASTICE CONTAINERS CASTLEVIEW (PTY) LTD
and
EKURHULENI METROPOLITAN MUNICIPALITY
NATIONAL ENERGY REGULA TOR OF SOUTH AFRICA
JUDGMENT
MBONGWE,J:
INTRODUCTION
First Applicant
Second Applicant
Third Applicant
First Respondent
Second Respondent
[1] The Applicants seek urgent interdictory relief restraining the First Respondent
municipality from terminating their electricity supply pending the finalisation of
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review. proceedings instituted against the National Energy Regulator of South
Africa ("NERSA") concerning the approval of tariffs for the 2024/2025 and
2025/2026 financial years.
[2] The matter raises the intersection of municipal credit control powers,
administrative law principles, and constitutional rights to fair administrative
action.
URGENCY
[3] The matter is urgent. Electricity is indispensable to the Applicant's operations,
and termination would cause irreparable harm. The Constitutional Court has
recogn!sed that deprivation of essential services implicates constitutional rights
and justifies urgent judicial intervention.1
FACTUAL BACKGROUND
[4] The Applicants are commercial entities operating within the area of the First
Respondent who supplies them with electricity.
[5] There is an ongoing dispute between the First Respondent and the Applicants
regarding the electricity charges levied, which are based on tariffs approved by
the Second Respondent, NERSA.
[6] In an unrelated matter of AfriForum v NERSA2, this Court (per Labuschagne J)
declared NERSA's approval procedures of the said tariffs invalid but did not set
aside the tariffs themselves.
' Mkontwana v Nelson Mandela Metropolitan Municipality, 2005 (1) SA 530 (CC).
2 (2025/137620) [2025] ZAGPPHC 1176 (31 October 2025).
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[7] The Applicants have instituted review proceedings seeking to set aside NERSA's
approval of the 2024/2025 and 2025/2026 tariffs.
[8] Pending resolution, the Applicants have consistently paid amounts reasonably
calculated for electricity consumed. They have undertaken to pay any shortfall
should the review confirm the validity of the tariffs, or to claim a refund if
overpayment is established.
[9] The First Respondent has threatened to disconnect the supply unless full
payment is made.
[1 0] The Applicants argue that:
a) . The First Respondent cannot lawfully rely on tariffs adopted through a
defective process.
b) The municipality has failed to disclose the cost structure underpinning
its charges, contrary to constitutional principles of transparency,
accountability and public participation.3
RESPONDENT 'S CONTENTIONS
[11) The Respondent contends that:
a) It is bound to apply tariffs approved by NERSA.
b) The Applicant's unilateral determination of "fair charges" is unlawful.
c)· The principle of legality requires compliance with existing tariff
determinations until they are set aside.
3 Sections 195 and 217 of the Constitu~ion of the Republic of South Africa, Act 108 of 1996.
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LEGAL FRAMEWORK
[12] The Electricity Regulation Act 4 of 2006 ("ERA") establishes the regulatory
fram~work for electricity supply and tariffs.
a) Section 14(1) empowers NERSA to regulate prices and tariffs.
b) Section 102(1) pro_vides that disputes regarding electricity tariffs may be
referred to the High Court for adjudication.
c) Section 102(2) confirms that the High Court has jurisdiction to review or
set aside decisions of NERSA.
[13] Municipalities derive their authorrty to levy charges for electricity from section
229(1 )(b) of the Constitution, which permits them to impose surcharges on fees
for services provided. This power is subject to national regulation, including
ERA.
[14] Section 75A of the Local Government: Municipal Systems Act 32 of 2000
authorises municipalities to levy and recover fees for services, but this must be
exercised in line with national legislation and constitutional principles of legality,
transparency, and accountability.
APPLICABLE LAWS AND PROCE DURES
[15] Section 102 of the Local Government: Municipal Systems Act 32 of 2000
permits municipalities to consolidate accounts and implement credit control
measures but requires compliance with prescribed procedures.
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[16] Electricity Regulation Act 4 of 2006 empowers NERSA to regulate tariffs,
subject to lawful procedures.
[17] The Municipal Finance Management Act 56 of 2003 governs municipal financial
conduct, including revenue collection.
[18] Municipal Supply By-laws typically require at least 30 days' written notice before
disconnection.
[19] Section 33 of the Constitution, read with the Promotion of Administrative Justice
Act 3 of 2000 (PAJA), guarantees procedurally fair administrative action.
PRECEDENTS
[20] The Constitutional Court has held that electricity supply is a public service and
termination without adequate notice is procedurally unfair.4
[21] In Mkontwana v Nelson Mandela Metropolitan Municipality , the Court
emphasised balancing municipal credit control powers with , constitutional
rights.5
(22] In Resilient Properties (Ply) Ltd v Eskom Holdings SOC Ltd, interim relief was
granted to prevent disconnection pending resolution of disputes, recognising
irreparable harm.6
4 2010 (4) SA 55 (CC).
5 2005 (1) SA 530 (CC).
6 2019 (1) SA 622 (GP).
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[23] In Copper Sunset Trading 443 (Pty) Ltd v Centlec SOC Ltd, the Free State
Division recognised that consumers who continue to pay amounts they deem
reasonable are not defaulters and that disconnection in such circumstances
requires judicial scrutiny.7
[24] In City of Tshwane Metropolitan Municipality v Vresthena (Pty) Ltd, the
Supreme Court of Appeal reaffirmed municipalities' power to cut supply for
non-payment but stressed that good faith payments and disputes over quantum
must be weighed in assessing fairness.8
ANALYSIS
[25] The court must balance two principles:
a) The Oudekraa/ Estates9 principle, which requires compliance with
administrative acts until set aside.
b) The constitutional imperative of lawful, transparent, and participatory
governance.
[26] Section 102 of ERA is significant. It provides a statutory mechanism for
disputing tariffs and empowers courts to adjudicate such disputes. This reflects
the constitutional principle of legality10, ensuring that administrative decisions
are subject to judicial scrutiny.
7 (2189/2023 ) [2023) ZAFSHC [Unreported].
8 (1346/2022 ) [2024) ZASCA 51; 2024 (6) SA 159 (SCA) (18 April 2024).
9 2004 (6) SA 222 (SCA); (2004) 3 All SA 1 (SCA); [2004) ZASCA 48 (28 May 2004).
10 Section 1 (c) of the Constitution.
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CONSTITUTIONAL PRINCIPLES
[27] Section 33 guarantees the right to lawful, reasonable, and procedurally fair
administrative action.
[28] Section 195 requires public administration to be accountable and transparent.
[29] Section 22 protects the right to choose and practice a trade, occupation, or
profession freely. Termination of the electricity supply would unjustifiably limit
this right.
[30] Section 1 ( c) enshrines the principle of legality, requiring that all exercises of
public power be lawful.
[31] Section 229 of the Constitution grants municipalities fiscal powers, but these
are not unfettered. They must be exercised within the framework of national
legislation and constitutional values. In Fedsure Life Assurance v Greater
Johannesburg Transitional Metropolitan Counci/11, the Constitutional Court held
that municipal fiscal powers are subject to legality and rationality.
ANALYSIS
[32] The Applicant's reliance ·on section 102 of ERA is well-founded. The provisions
enable the court to intervene where tariffs are disputed, even before a formal
. review is finalised, to prevent irreparable harm.
11 1999 (1) SA 374 (CC).
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[33] In A// Pay Consolidated Investment Holdmgs v CEO of SASSA 12, the
Constitutional Court em;:>hasised that procedural defects in administrative
processes undermine legality and cannot be condoned. The Afriforum v NERSA
judgment demonstrates that NERSA's process was defective13, raising serious
doubts about the validity of the tariffs. While approved tariffs are ordinarily
enforceable, the declaration of invalidity of the process leading to the approval
of the 2024/2025 and 2025/2026 tariffs in Afriforum v NERSA , necessarily
impugns the approval of these tariffs and their enforceability, in my view. The
Oudekraal Estates matter14 establishes that the court is empowered under
section 102 of ERA to grant interim relief to prevent injustice.
CONCLUSION
[34] I find that the Applicants have established a prima facie right to a continued
supply of electricity, pending the review proceedings.
[35] The Applicants· ongoing payments demonstrate good faith and compliance with
obligations, distinguishing them from defaulters. This factor weighs heavily in
favour of the granting of the interim protection sought, as recognised in Copper
Sunset and Vresthena.15
[36] The threat of disconnection would cause irreparable harm to the Applicants'
busin~sses.
[37] The balance of convenience favours the Applicants: termination of electricity
supply would cause irreparable harm, whereas the Respondent will suffer no
prejudice if supply continues, particularly in that the Applicants undertake to pay
any shortfall should the tariffs be found to be valid.
12 2014 (1) SA 604 (CC) .
13 (2022) ZAGPPHC 778 (20 October 2022).
1• 2004 (6) SA 222 (SCA); [2004] 3 All SA 1 (SCA); [2004] ZASCA 48 (28 May 2004).
15 Ibid 7.
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[38] The Respondent's threat to disconnect will be procedurally unfair, unless the
statutory minimum of 30 days' notice is afforded.
[39] The Applicants' reliance on section 102 of the Municipal Systems Act is
well-founded, as the provision regulates municipal powers and requires
compliance with due process.
ORDER
[40) Consequent to the findings in this judgment, I make the following orders:
The Primary Relief Sought
1. The first respondent (Ekurhuleni Municipality) is interdicted from disconnecting
the electricity supply to tr.e premises of the applicants pending the finalisation
of the disputes lodged by the applicants in terms of section 102 of the Systems
• Act16 (Systems Act).
First Alternative Relief
2. To the extent that the first respondent took a decision to reject or refuse to
decide the applicants' dispute under section 102 of the Local Government:
Systems Act, that decision is declared inconsistent with the Constitution of the
Republic of South Africa, invalid, reviewed and set aside.
3. The first respondent is interdicted from disconnecting the electricity supply to
the premises of the applicants pending the finalisation of the disputes lodged
by the applicants in terms of section 102 of the Systems Act, regardless of when
the disputes are finally resolved.
The Second Alternativ e Relief
16 Municipal Systems Act 32 of 2000.
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4. In the alternative to the relief sought in paragraph 1, 2 and 3 above, the first
respondent is interdicted from disconnecting the electricity supply to the
premises of the applicants pending the final determination of the application in
case no: 2025-185401.
The Third Alternative Relief
5. In the further alternative to the relief sought in paragraphs 1 to 4 above, the first
respondent is interdicted from disconnecting the electricity supply to the
premises of the applicants without following the procedure set out in this
paragraph:
5.1 Should the first respondent intend to disconnect the electricity supply to the
premises of any of the applicants, it is to furnish the relevant applicant with
a· notice in which it is recorded that:
5.1.1 The first respondent intends to disconnect the electrjcity supply to
the relevant _applicant's premises in no less than 30 days from the
date of the letter.
5.1.2 The relevant applicant is entitled to make written representations to
the first respondent within 14 days of receipt of the notice as to why
the electricity supply should not be disconnected.
5.2 The first respondent is precluded from disconnecting the electricity supply
to the premises of the relevant applicant until the latter of either:
5.2.1 The elapsing of the 30-day period without the relevant applicant
making any written representations; or
5.2.2 The completion of the period set out in prayer 5.3 betow.
5.3 Should the relevar.t applicant take up the opportunity to make
representations; the first respondent is precluded from disconnecting
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electricity supply to the premises of the relevant applicant without following
ttie process set out below:
5.3.1 The first respondent is to consider the written represeritations made
by the relev~nt applicant.
5.3.2 If, having considered the representations, the first respondent
decides nevertheless, to disconnect the electricity supply to the
premises of the relevant applicant they are to inform the relevant
applicant accordingly, and provide written reasons for such
decision.
5.4 When informing the relevant applicant of the decision described in
paragraph 5.3.2, the first respondent is to adopt the following procedure:
5.4.1 The decision to disconnect the electricity supply notwithstanding the
relevant applicant's written representations, including the reasons
for such decision (the "decision notification") must be conveyed to
the relevant applicant in writing.
5.4.2 The decision notification must record that, should the relevant
applicants contest the right of the first respondent to disconnect the
electricity, the relevant applicant, is entitled to approach a
competent Court for urgent relief.
5.4.3 The decision notification must record that, should the relevant
applicants choose to challenge the disconnection decision as
envisaged by paragraph 5.4.2 above, the electricity supply will not
be disconnected pending the finalisation of the litigation in question,
subject to the conditions that:
5.4.3.1 The relevant applicant must inform the resP.ondents of its
decision to challenge the lawfulness of the proposed
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disconnection within three days of receipt of the decision
notification.
5.4.3.2 The relevant applicant launches its urgent application
within seven days of informing the respondents of its
intention to do so as envisaged by paragraph 5.4.3.1
above.
6. In the event that Ekurhuleni fails, on receipt of this application, to confirm in
writing that it will consent to the order set out in paragraph 1 above made an
order of court. the respondents are to pay the applicants' costs on attorney
own-client scale.
APPEARANCES
For the Applicants
with
Instructed by
For the First Respondent
Instructed by
~ BONGWE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
PRETORIA
Advocate M Chaskalson SC
Advocate S Pudifin-Jones
Advocate N Mahlangu
Advocate E Cohen
Nortons Incorporated
Advocate Uys SC
Klapper Jonker Incorporated
Date of Hearing :
Date of Judgement:
13
05 February 2026
18 February 2026
THIS JUDGEMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES'
LEGAL REPRESENTATIVES AND UPLOADED ONTO CASELINE ON 18
FEBRUARY 2026.