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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025/048967
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 1 April 2026
SIGNATURE
In the matter between:
AFRICAN SPIRIT TRADING 71 (PTY) LIMITED APPLICANT
and
EMFULENI LOCAL MUNICIPALITY FIRST RESPONDENT
MUNICIPAL MANAGER,
SOTSHENGANI APRIL NTULI SECOND RESPONDENT
TSIETSI RAFUBE THIRD RESPONDENT
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JUDGMENT
HINRICHSEN, AJ
Introduction
[1] This matter serves before me on the return date of a rule nisi granted by
Kooverjie J on 15 April 2025, directing the restoration of electricity supply to
the Applicant's premises and interdicting the Respondents from effecting any
further disconnection pending the finalisation of a dispute. The Applicant
seeks confirmation of that order.
[2] In addition, the Applicant seeks an order declaring the Municipal Manager, the
Second Respondent, as well as Tsietsi Rafube (“ Rafube”), the Revenue
Manager and Third Respondent, to be in contempt of court arising from their
failure to comply with that order.
[3] The matter accordingly requires determination of two distinct but related
enquiries:
a. Whether the rule nisi should be confirmed, which in turn requires
consideration of whether the initial disconnection of electricity was
unlawful; and
b. Whether the Second and Third Respondents' non -compliance with the
order of Kooverjie J constitutes contempt of court.
Background
[4] The relevant facts are largely common cause.
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[5] The Applicant is the owner of Erf 3[...] V[...] C[...] E[...] No. […], also known as
2[...] J[...] Street, Vanderbijlpark, Gauteng ('the property'), which it holds under
Account Number 1[...] with the First Respondent.
[6] On 23 May 2023, the Applicant lodged a formal written dispute with the First
Respondent concerning miscellaneous charges levied against its municipal
account. The dispute was accepted by the First Respondent and allocated
reference number E[...] 1[...].
[7] It is common cause that as at the date of this judgment, a period approaching
three years, the dispute has not been investigated, determined, or finalised.
[8] Notwithstanding the existence of the pending dispute, the First Respondent
disconnected the electricity supply to the property on 2 April 2025. The First
Respondent contends that accumulated arrears, inclusive of the disputed
amounts, stood at R227,899.36 and that the disconnection was lawfully
effected under Clauses 28.1 to 28.3 of its Credit Control and Debt Collection
By-Laws ('the By-Laws'), following the issuing of final demand notices.
[9] It is common cause that the Applicant had throughout this period been making
monthly payments of R20,000 to the First Respondent, explicitly reserving its
position with respect to the disputed miscellaneous charges.
[10] The Applicant approached this Court on an urgent basis. On 15 April 2025,
Kooverjie J granted a rule nisi returnable on 18 August 2025, together with an
interim order interdicting the Respondents from disconnecting the water
and/or electricity supply to the property pending finalisation of the dispute and
pending the return date ( 'the April Order' ). No opposing papers were filed by
the first return date.
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[11] When the matter served before Nyathi J on 18 August 2025, the answering
affidavit had only been served on the Applicant's attorneys on 29 July 2025.
The rule nisi was extended to 24 November 2025.
[12] Notwithstanding the April Order, the Respondents disconnected the electricity
supply on 12 September 2025. Following urgent correspondence from the
Applicant's attorneys, the electricity was restored.
[13] On 29 September 2025, the Respondents again disconnected the supply. It
was restored on the same date following further urgent intervention by the
Applicant's attorneys.
[14] Both incidents occurred after the Applicant's attorneys had explicitly warned in
writing, on 16 April 2025, that further disconnections would constitute
contempt of court.
[15] On 6 October 2025, the Applicant launched a contempt application founding
upon these post -order disconnections. The matter now serves before me on
the return date and on the contempt application.
The legal framework
The municipal obligation to provide services
[16] The obligation borne by local government to provide basic municipal services
is sourced in both the Constitution and legislation. Section 152(1) of the
Constitution sets out the objects of local government and creates an
overarching framework of constitutional obligation.
[17] Section 4(2)(f) of the Local Government: Municipal Systems Act 32 of 2000
('the Systems Act ') provides that the council of a municipality must give
members of the local community equitable access to the municipal services to
which they are entitled.
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[18] Section 73 of the Systems Act gives further content to this obligation. A
municipality must give effect to the provisions of the Constitution and: (a) give
priority to the basic needs of the local community; (b) promote the
development of the local community; and (c) ensure that all members of the
local community have access to at least the minimum level of basic municipal
services.
[19] Section 95 of the Systems Act obliges a municipality to provide consumers
with accurate accounts, a proper opportunity to object to incorrect
assessments, and accessible mechanisms for dealing with complaints,
together with prompt replies and corrective action.
The municipality's duty to prove its accounts
[20] Of particular importance in this matter is the principle that the evidentiary
burden in respect of the correctness of a municipal account rest upon the
municipality, not upon the consumer. In Euphorbia (Pty) Ltd v City of
Johannesburg1 (“Euphorbia”), the Court held:
'In the absence of special circumstances, considerations of policy, practice
and fairness require that the City is saddled with the onus of proving the
correctness of its meters, the measurements of water consumption and
statements of account rendered pursuant thereto. It cannot reasonably be
expected from the consumer, having raised a bona fide dispute concerning
the services delivered by the city, to pierce the municipal veil in order to prove
aspects that peculiarly fall within the knowledge of and are controlled by the
city.'
[21] This principle is of direct application in the present matter. The First
Respondent claims an accumulated debt of R227,899.36 inclusive of disputed
1 2016 JDR 1309.
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miscellaneous charges. I n considering the applicant’s dispute , the First
Respondent has not yet discharged the evidentiary burden of establishing that
those charges are correctly owed. Indeed, as I address below, it has not even
engaged with the formal dispute process which would have been the
appropriate vehicle for doing so.
[22] The Constitutional Court has further confirmed that municipalities must
maintain reasonably accurate records and must be able to provide complete,
credible, and comprehensible information in relation to consumption charges
within a reasonable time of being requested to do so.
The interruption of services and the constitutional framework
[23] In Matjhabeng Local Municipality v Eskom Holdings Limited 2 (“Matjhabeng”)
the Constitutional Court emphasised that the provision of electricity is not
merely a commercial function but one embedded in constitutional governance.
The interruption of electricity supply carries profound consequences for
occupants and proprietors alike, and must be exercised lawfully, rationally,
and in accordance with constitutional obligations. Electricity may not be used
as a coercive mechanism outside lawful processes.
Section 102(2) of the Systems Act: suspension of credit control pending a dispute
[24] Section 102(2) of the Systems Act provides that a municipality may not take
any collection steps against a person who, in writing, has disputed liability for
the amount claimed unless the municipality has (a) established that the
amount is correctly owed; or (b) the dispute has been determined against that
person.
[25] This provision is peremptory. It admits of no discretion and no qualification.
Once a written dispute has been lodged, the municipality is prohibited from
2 2018 (1) SA 1 (CC).
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implementing any credit control measures, including the disconnection of
services, until it has either established that the amount is correctly owed or
the dispute has been determined against the consumer.
[26] In Body Corporate Crofdene Mall v Ethekwini Municipality 3 (“Crofdene”), the
Supreme Court of Appeal clarified the threshold requirements for a valid
dispute under s 102(2). At paragraph 20 the Court held:
'It is, in my view, of importance that section 102(2) of the Systems Act
requires that the dispute must relate to a specific amount claimed by the
municipality. Quite obviously, its objective must be to prevent a ratepayer from
delaying payment of an account by raising a dispute in general terms. The
ratepayer is required to furnish facts that would adequately enable the
municipality to ascertain or identify the disputed item or items and the basis
for the ratepayer's objection thereto. If an item is properly identified and a
dispute properly raised, debt collection and credit control measures could not
be implemented regarding that item.'
[27] The question of whether the Applicant's dispute satisfied the Crofdene
threshold falls for determination below.
The duty to engage with disputes in good faith
[28] In Body Corporate of Willow and Aloe Grove v City of Johannesburg
Metropolitan Municipality 4 (“Aloe Grove ”), the Court clarified the proper
approach to disputes concerning municipal charges. A municipality is obliged
to engage with a properly formulated dispute efficiently, intellectually, and in
good faith, and to provide a reasoned written determination.
3 2012 (4) SA 169 (SCA).
4 2023 JDR 4762 (JG).
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[29] Crucially, the Court held that while internal remedies are being pursued in
good faith, there can be no lawful termination of services. This principle
operates as a second, independently sufficient legal basis for the relief sought
in this matter.
The requirements for contempt of court
[30] The requirements for civil contempt of court are set out in Fakie NO v CCII
Systems (Pty) Ltd5 (“Fakie”). An applicant must establish: (a) the existence of
a court order; (b) knowledge thereof on the part of the respondent; and (c)
non-compliance with the order.
[31] Once these three elements are established, wilfulness and mala fides are
presumed. The respondent then bears an evidentiary burden to rebut that
inference on a balance of probabilities.
[32] Where a fine (as opposed to imprisonment) is sought as sanction, proof on a
balance of probabilities suffices. Where imprisonment is sought, the standard
of proof is proof beyond a reasonable doubt6.
[33] In Matjhabeng, the Constitutional Court further clarified that where a court
order is directed at a municipality, responsibility for compliance rests with the
officials tasked with its implementation. Such officials bear a personal
constitutional obligation to take reasonable steps to ensure compliance and
cannot avoid personal liability by relying on institutional structures or
bureaucratic inertia.
[34] In Pheko, the Constitutional Court reaffirmed that compliance with court
orders is foundational to the rule of law, and that this obligation bears with
particular force upon organs of State.
Confirmation of the rule nisi
5 2006 (4) SA 326 (SCA)
6 Fakie supra. See to Pheko v Ekurhuleni Metropolitan Municipality 2015 (5) SA 600 (CC).
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Did the Applicant's dispute meet the Crofdene threshold?
[35] The first question on the confirmation enquiry is whether the Applicant's
dispute of 23 May 2023 constitutes a valid dispute for purposes of s 102(2),
having regard to the Crofdene requirement that the disputed amount be
specifically identified.
[36] The dispute under reference E[...] 1[...] related specifically to miscellaneous
charges that had been added to the Applicant's account. The dispute was not
a blanket refusal to pay; it was directed at an identifiable category of charges.
It was formally accepted by the First Respondent and allocated a reference
number.
[37] Most significantly, the First Respondent's own email address for disputes,
d[...], corresponded with the Applicant acknowledging receipt of the dispute
and its pending status. The First Respondent thereafter engaged in the
dispute process sufficiently to generate a reference number and written
acknowledgment.
[38] I am satisfied that the Applicant's dispute met the Crofdene threshold. The
disputed items were sufficiently identified to enable the municipality to
ascertain and engage with them. The First Respondent's conduct in accepting
the dispute and issuing a reference number is itself acknowledgment that the
dispute was properly formulated.
Was the disconnection lawful?
[39] Once a valid written dispute has been lodged under s 102(2), the municipality
is prohibited from taking any collection steps in respect of the disputed
amount until it has either established that the amount is correctly owed or the
dispute has been determined against the consumer. This prohibition is
peremptory.
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[40] In this case, the First Respondent disconnected the electricity supply on 2
April 2025 — some 22 months after the dispute was lodged — without ever
having investigated, engaged with, or determined that dispute. The First
Respondent had not established that the disputed amounts were correctly
owed. The dispute had not been determined against the Applicant.
[41] The Respondents contend that the disconnection was authorised under
Clauses 28.1 to 28.3 of the By -Laws. That contention cannot be sustained.
The By-Laws operate within, and are subordinate to, the statutory framework
created by the Systems Act. To the extent that any by -law purports to
authorise conduct that is prohibited by s 102(2) of the Systems Act, the by-law
must yield.
[42] The hierarchy is reinforced by s 156(3) of the Constitution, which provides that
national legislation prevails over a by-law where there is an inconsistency.
[43] Furthermore, the Respondents' reliance on Clause 22.4 of the By -Laws —
which requires that a complaint be accompanied by payment of the
undisputed portion — does not provide a defence. The Applicant was paying
R20,000 per month throughout, demonstrating that it was not simply seeking
to avoid its obligations but was genuinely contesting only the disputed
charges.
[44] In any event, a procedural requirement in a by -law governing the mechanics
of lodging a query cannot operate to nullify a peremptory statutory prohibition
in an Act of Parliament.
[45] Additionally, as confirmed in Aloe Grove , while internal remedies are being
pursued in good faith — as they manifestly were here, the dispute having
been formally accepted and allocated a reference number — there can be no
lawful termination of services. This provides a second, independently
sufficient basis for finding the disconnection unlawful.
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[46] The First Respondent has also failed to discharge the evidentiary burden,
confirmed in Euphorbia, of proving that its accounts and the charges levied
are correct. It has provided no reasoned determination of the dispute. It has
not established that the miscellaneous charges are accurately computed or
properly leviable.
[47] The disconnection of electricity supply on 2 April 2025 was accordingly
unlawful. It was effected in direct contravention of s 102(2) of the Systems
Act, in breach of the municipality's obligations under Aloe Grove, and without
discharging the evidentiary burden confirmed in Euphorbia. The rule nisi was
correctly granted and falls to be confirmed.
Adequacy of alternative remedies and balance of convenience
[48] The Respondents urged that the Applicant had adequate alternative remedies
including an internal appeal process. This contention has no merit on the
facts. The internal processes have demonstrably failed the Applicant: the
dispute was lodged in May 2023 and remains entirely unresolved. A remedy
that presupposes institutional action that has been consistently refused for
nearly three years cannot be characterised as adequate.
[49] The balance of convenience overwhelmingly favours the Applicant: it and its
occupants face immediate, ongoing prejudice from each disconnection; the
First Respondent suffers no prejudice from maintaining supply, as it continues
to receive monthly payments.
Contempt of court
[50] The following are common cause:
a) An order was granted by Kooverjie J on 15 April 2025;
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b) The Respondents had knowledge of that order7; and
c) The Respondents failed to comply with it8.
[51] In terms of Fakie, these three established elements give rise to an inference
of wilfulness and mala fides. The Respondents bear an evidentiary burden to
rebut that inference.
[52] The Respondents have offered no explanation for either post -order
disconnection. There is no evidence that compliance was impossible, that any
operational circumstance prevented compliance, or that steps were taken to
challenge or vary the order through proper legal channels.
[53] On the contrary, the evidence establishes that the disconnection of 29
September 2025 was executed by employees of the First Respondent acting
under instructions from the Second Respondent's office, as evidenced by the
letter from the Office of the Municipal Manager and the photographic record
annexed to the founding affidavit in the contempt application.
[54] In terms of Matjhabeng, the Second Respondent as Municipal Manager and
the Third Respondent as Revenue Manager were the officials specifically
responsible for the implementation of credit control measures, including
disconnections.
[55] They bore an obligation to ensure compliance with the April Order and cannot
shelter behind the municipal institution. Their inaction constitutes a deliberate
disregard for the authority of this Court.
[56] Applying the applicable standard of proof, being proof on a balance of
probabilities (the sanction sought being a fine rather than imprisonment), I am
7 It was served on their attorneys by email on the day it was granted, and a letter dated 16 April 2025 from the
Applicant's attorneys specifically drew their attention to the order and warned that further disconnections
would constitute contempt.
8 The electricity supply was disconnected on 12 September 2025 and again on 29 September 2025, on both
occasions in direct breach of the April Order.
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satisfied that the non -compliance was wilful and mala fide. The Second and
Third Respondents are in contempt of court.
Sanction
[57] A fine is the appropriate sanction in the circumstances. I am mindful of the
guidance in Matjhabeng that sanctions for contempt by municipal officials
must carry genuine deterrent force, having regard to the constitutional gravity
of non-compliance by an organ of State. Accordingly, the fine imposed will be
suspended on conditions designed to ensure prospective compliance and
provide the Applicant with an expedient enforcement mechanism should
further non-compliance occur.
Further observations
[58] Before turning to the order, I am constrained to place observations on record
that transcend the interests of the parties.
[59] A dispute formally lodged and accepted in May 2023 remains unresolved in
March 2026 — a period of nearly three years. During that period the First
Respondent: failed to investigate or determine the dispute; continued to
charge the Applicant for disputed amounts; proceeded to disconnect the
electricity supply in contravention of s 102(2) of the Systems Act; failed to
comply with a court order on multiple occasions after explicit warning; and did
all of this while continuing to accept the Applicant's monthly payments of the
undisputed amounts.
[60] The use of service disconnection as a tool of fiscal coercion — deployed
against a consumer who is actively engaged in the municipality's own dispute
process — is antithetical to the constitutional values of dignity, fairness, and
lawful administration. It is precisely the conduct that s 102(2) of the Systems
Act was designed to prevent.
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[61] I deal with this in the order below.
Order
[62] In the result the following order is made:
[63] The rule nisi granted by Kooverjie J on 15 April 2025 is confirmed as a final
order in the following terms:
a. The Respondents are hereby permanently and finally interdicted and
restrained from disconnecting the water and/or electricity supply to the
property known as Erf 3[...] V[...] C[...] E[...] No. […], also known as
2[...] J[...] Street, Central East No. […], Vanderbijlpark, Gauteng
(Account Number: 1[...]), pending the finalisation of the formal dispute
registered under reference number E[...] 1[...].
[64] The Second Respondent (in his capacity as Municipal Manager) is directed,
within 1 5 (fifteen) days of the date of this order, to file an affidavit with this
Court setting out:
a. The steps taken to comply with this order.
b. The measures implemented to ensure the continued and uninterrupted
electricity supply to the property pending the finalisation of the formal
dispute registered under reference number E[...] 1[...]; and
c. What steps have been put in place to ensure the advancement and
resolution of the pending dispute.
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[65] The Second Respondent, Sotshengani April Ntuli, and the Third Respondent,
Tsietsi Rafube, are each found to be in contempt of the order of this Court
granted on 15 April 2025.
[66] The Second Respondent and the Third Respondent are each ordered to pay
a fine in the amount of R50,000.00 (fifty thousand rand), which fine is wholly
suspended for a period of 12 (twelve) months on condition that:
a. They comply fully and timeously with this order; and
b. They take all reasonable steps within to ensure that the First
Respondent does not again disconnect the water and/or electricity
supply to the property in breach of this order.
[67] In the event of any further non-compliance with this order or any breach of the
conditions above, the Applicant is granted leave to approach this Court on the
same papers, duly supplemented, for the enforcement of the suspended fine
and/or the imposition of a further suspended or unsuspended order of
committal to imprisonment.
[68] The First Respondent is ordered to pay the costs of this application, including
the costs of the contempt application, on the scale as between attorney and
client.
___________________________________
DH HINRICHSEN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
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DATE OF THE HEARING: 17 MARCH 2026
DATE OF HANDING DOWN JUDGMENT: 1 APRIL 2026
Appearances:
For the Applicant: Adv W Venter instructed by HJ van
Rensburg Attorneys Inc.
For the Respondents: Adv P Seloga intructed by Tsotetsi
and Mchunu Incorporated