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[2019] ZASCA 98
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Eskom Holdings SOC Limited v Masinda (1225/2018) [2019] ZASCA 98; 2019 (5) SA 386 (SCA) (18 June 2019)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1225/2018
In
the matter between:
ESKOM
HOLDINGS SOC
LIMITED APPELLANT
and
NOMAJAPAN
MASINDA RESPONDENT
Neutral
citation:
Eskom
Holdings SOC Limited v Masinda
(1225/2018)
[2019] ZASCA 98
(18 June 2019)
Coram:
Leach,
Wallis and Mocumie JJA and Mokgohloa and Weiner AJJA
Heard:
17
May 2019
Delivered:
18
June 2019
Summary:
Spoliation
– rights protectable by mandament van spolie – whether an
electricity supply in itself an incident of possession
of the
property to which it is delivered or a mere personal right –
whether such supply protectable by the mandament.
ORDER
On
appeal from:
Eastern
Cape Division of the High Court, Mthatha (Jolwana AJ sitting as court
of first instance):
1 The appeal is
upheld, with costs.
2 The order of the
court a quo is set aside, and substituted with the following:
‘
The
application is dismissed, with costs.’
JUDGMENT
Leach
JA (Wallis and Mocumie JJA and Mokgohloa and Weiner AJJA
concurring)
[1]
The issue we are called upon to decide in this appeal is whether the
respondent (Ms Masinda) was entitled to a spoliation order
when the
appellant, Eskom Holdings SOC Limited (Eskom), disconnected the
supply of electricity to immovable property she owns and
possesses in
Tsolo, Eastern Cape. The court a quo decided she was, and ordered
that the electrical supply to her property be reconnected.
The appeal
against that order is with leave of this court.
[2]
Eskom is a public company with its entire share capital held by the
State.
[1]
It is the national
generator and distributor of electricity and is licensed to provide
electricity directly to customers in the
area in which Ms Masinda’s
property is situated. Illegal electricity connections to Eskom’s
power grid, which by their
very nature are fraught with peril, appear
to have become a substantial problem in the area. Regarding itself
obliged to take steps
to avoid harm occurring due to dangerous and
unauthorised connections to its grid, on
8
August
2017, Eskom sent a team made up of members from its various
departments to hold an inspection in Tsolo. On doing so, various
illegal connections to the Eskom grid were identified and then
disconnected.
[3]
One of the properties identified as having an illegal connection was
that of Ms Masinda. The alleged defects in the supply installation
on
her property were unfortunately not set out in Eskom’s papers
with the clarity one would have expected. Rather it adopted
a
procedure, previously criticised by this court,
[2]
of adducing evidence by way of hearsay allegations in its main
answering affidavit, supported by so-called ‘confirmatory
affidavits’ by the witnesses who should have provided the
necessary details, but who merely sought to confirm what had been
said in the main affidavit ‘in so far as reference [has been]
made to me’. Despite this slovenly practice, it can be
accepted
that Eskom averred that the electrical supply installation included
equipment of incorrect sizes, did not meet prescribed
standards, had
been erected by an unauthorised contractor, and constituted an
immediate danger to the public.
[4]
For this reason, the supply to Ms Masinda’s property was
disconnected. On doing so, certain Eskom officials approached
Ms
Masinda to ask her about her prepaid electricity meter and its
connection to the national grid. Instead of providing the details
requested, she began shouting at them, stating that she had applied
for electricity and now that someone else had connected her,
Eskom
should not disconnect her. Ms Masinda denied these allegations, but
as the matter is to be decided on the affidavits, they
must be
accepted for present purposes.
[5]
Ms Masinda alleged in her replying affidavit that her meter and
connection had been installed by a contractor whom she understood
was
Eskom’s agent. This, according to Eskom, was inconsistent with
what she had said at the time of the disconnection. It
further
alleged that it had quoted Ms Masinda for a 60 amp prepaid meter
installation which she had not accepted. Whatever may
have happened,
it does appear that she was purchasing electricity which was then
being drawn through a meter installed on her property.
Unfortunately
for her, according to Eskom, this was being done through an illegal
and dangerous installation which led to her supply
being
disconnected.
[6]
Ms Masinda was not prepared to take this lying down. By way of notice
of motion dated 18 August 2017, but filed only on 1 September
2017,
she launched urgent proceedings against Eskom in which she sought,
inter alia
, an order obliging it to forthwith restore the
electricity supply to her home. In seeking this relief she relied,
first, upon the
mandament van spolie (commonly known as a spoliation
application) and, secondly, upon an allegation that the decision to
disconnect
her electrical supply constituted administrative action as
envisaged by the Promotion of Administrative Justice Act 3 of 2000
(PAJA).
In respect of the former she contended that Eskom’s
officials had unlawfully disconnected the supply of electricity
without
her consent ‘and without recourse to due legal
process’. In respect of the latter she sought to review the
respondent’s
action on the basis that it had been procedurally
unfair or decided upon arbitrarily and capriciously in breach of the
provisions
of PAJA.
[7]
Nothing really needs to be said in respect of the claim brought under
PAJA. It was abandoned in the court a quo and not only
was there no
attempt to resurrect it in this court, but counsel for Ms Masinda
specifically eschewed all reliance upon PAJA in
attempting to support
the order obtained below. The matter was therefore argued solely in
respect of the spoliation, to which issue
I now turn.
[8]
The mandament van spolie (spoliation) is a remedy of ancient origin,
based upon the fundamental principle that persons should
not be
permitted to take the law into their own hands to seize property in
the possession of others without their consent. Spoliation
provides a
remedy in such a situation by requiring the status quo preceding the
dispossession to be restored by returning the property
‘as a
preliminary to any enquiry or investigation into the merits of the
dispute’
[3]
as to which of
the parties is entitled to possession. Thus a court hearing a
spoliation application does not require proof of a
claimant’s
existing right to property, as opposed to their possession of it, in
order to grant relief. But what needs to
be stressed is that the
mandament provides for interim relief
[4]
pending a final determination of the parties’ rights, and only
to that extent is it final. The contrary comment of the full
court in
Eskom
v
Nikelo
[5]
is clearly wrong. A spoliation order is thus no more than a precursor
to an action over the merits of the dispute.
[6]
[9]
As I have mentioned, Ms Masinda sought restoration of her electricity
supply on two alternative bases. In respect of the first,
the
spoliation, an investigation into the merits of her claim to receive
such a supply would ordinarily not be called for. In respect
of the
second, the review under PAJA, she was required to establish that she
had such a right to electricity which had been unlawfully
taken away
from her. The two alternative claims are the very antithesis of each
other. Possibly as a result of this, the matter
appears to have
morphed into an application in which Ms Masinda sought and obtained a
permanent order from the court a quo requiring
Eskom to restore an
electricity supply to Ms Masinda.
[10]
Presumably the court did not intend for such electrical supply to be
restored by way of an installation that was unlawful and
a danger to
the public but rather one which complied with the necessary
requirements of safety – something, according to
Eskom, the
original installation had lacked. In this respect its order was
immediately problematic as it seemingly went beyond
requiring the
re-establishment of what there was before, whereas spoliation only
requires the
status
quo ante
to be restored.
[7]
(This was
probably the product of the court a quo applying the principles of
spoliation in circumstances where, effectively, final
relief was
being sought.) In
Tswelopele
[8]
Cameron JA dealt with the nature of the mandament and said:
[9]
‘
its
object is the interim restoration of physical control and enjoyment
of specified property – not its reconstituted equivalent.
To
insist that the mandament be extended to mandatory substitution of
the property in dispute would be to create a different and
wider
remedy than that received into South African law, one that would lose
its possessory focus in favour of different objectives
(including a
peace-keeping function).’
For
that reason he had earlier in the judgment accepted that the
mandament is a preliminary and provisional order.
[10]
[11]
The obvious difficulty standing in the way of relief being granted
was that the supply that was sought to be restored was said
to be
unlawful and constituted a danger to the public. This
notwithstanding, the respondent’s counsel argued that, as in
spoliation proceedings the legality or otherwise of an applicant’s
possession is not an issue to be decided, the supply had
to be
reconnected before any dispute as to its legality could be
determined.
[12]
Although it is correct that spoliation requires restoration of
possession as a precursor to determining the existence of the
parties’ rights to the property dispossessed, there may well be
circumstances in which a court will decline to issue a spoliation
order. Thus in
Ngqukumba
,
[11]
a case involving the spoliation of a motor vehicle, the engine and
chassis numbers of which had been altered, the Constitutional
Court
stated:
[12]
‘
. . . in this
case we are not concerned with objects the possession of which by
ordinary individuals would be unlawful under
all circumstances.
Had we been concerned with objects of that nature, then the mandament
van spolie might well not be available;
but that issue is not before
us and need not be decided. The fact that we are here concerned with
an article that
may
be possessed quite lawfully
makes all the difference . . . At the risk of repetition, the simple
point of distinction is that an individual can possess a tampered
vehicle if there is lawful cause for its possession.’
[13]
This dictum raises the possibility of a court refusing to order the
return of property to a person who may not lawfully possess
it,
although to do so would require reconsideration of a line of
authority in this court that has not hitherto been questioned.
[13]
In any event, Eskom was undoubtedly under a common law duty to take
steps to guard against its electrical supply constituting a
hazard to
the public (I leave out of the reckoning certain regulations, the
applicability of which are in dispute)
[14]
and the fact that the electrical installation that was removed did
not meet required specifications and constituted a public danger,
might well be sufficient for a court to decline to issue a spoliation
order. After all, directing it to restore the electricity
connections
that were removed would compel it to commit an illegality.
[15]
In the light of my view on this matter, however, no final decision on
this aspect of the case need be taken as, for the reasons
that
follow, the appeal must succeed.
[14]
It is necessary to undertake a more detailed examination of the
principles applicable to the mandament. Although it originally
protected only the physical possession of movable or immovable
property, this court pointed out in
Telkom
v
Xsinet
[16]
that in the course of scientific development it was extended to
provide a remedy to protect so-called ‘quasi-possession’
of certain incorporeal rights, such as those of servitude.
[17]
But not all incorporeal rights may be the subject of spoliation. As
was explained in
Firstrand
v Scholtz
:
[18]
‘
The mandament
van spolie does not have a “catch-all function” to
protect the
quasi-possessio
of all kinds of rights irrespective of their nature. In cases such as
where a purported servitude is concerned the mandament
is
obviously the appropriate remedy, but not where contractual rights
are in dispute or specific performance of contractual obligations
is
claimed: its purpose is the protection of
quasi-possessio
of certain rights. It follows that the nature of the professed right,
even if it need not be proved, must be determined or the
right
characterised to establish whether its
quasi-possessio
is deserving of protection by the mandament. Kleyn seeks to
limit the rights concerned to “gebruiksregte”
such as
rights of way, a right of access through a gate or the right to affix
a nameplate to a wall regardless of whether the alleged
right is real
or personal. That explains why possession of “mere”
personal rights (or their exercise) is not protected
by the
mandament. The right held in
quasi-possessio
must be a [“right of use”]
[19]
or
an
incident of the possession or control of the property.
’(Emphasis
added.)
[15]
Depending upon the circumstances, the supply of electricity or water
may be recognised as being an incorporeal right, the possession
of
which is capable of protection under the mandament. That this is so
is apparent from the decision of this court in
Impala
Water v Lourens
[20]
in which the respondents sought and obtained a spoliation order
directing the appellant, a supplier of water, to restore the flow
of
water to reservoirs on their farms. There had been a dispute
concerning the legality of certain water charges levied by the
appellant and, although proceedings to recover these charges were
pending, the appellant exercised its powers under the
National Water
Act 36 of 1998
to restrict the flow of water to the respondents by
closing certain sluices. The respondents’ rights to receive
water were
not mere personal rights but were linked to and registered
in respect of certain portions of each of the respondents’
farms
that were dependent on the supply of the water. This court, in
dismissing an appeal against an order that the appellant restore
the
flow, held that such rights were an incident of the possession of
each farm, and that the mandament was therefore available.
[16]
Importantly, it was clear from the facts in that case that the right
to the supply flowed from the exercise of possession of
the immovable
property. Put somewhat differently, whoever was in lawful possession
of the relevant portions of land was entitled
to receive water from
the appellant. This has not always been recognised in previous
decisions in which the courts have at times
seemed to regard the mere
supply of water or electricity, without more, as constituting an
incident of possession – see eg
Eskom
v
Nikelo
.
[21]
In
Naidoo
v Moodley
[22]
and
Froman
v Herbmore Timber
[23]
it appears that the electricity was cut off with a view to forcing
the applicants to vacate immovable property, so that, as with
Nienaber
v Stuckey
1946
AD 1049
, where the complaint was of interference with access to a
property, it was the possession of that immovable property that was
being
protected.
Nisenbaum
v Express
,
[24]
which is sometimes referred to as an instance of the spoliation of a
water supply, was rather an order for specific performance
of a
lease.
[17]
The decision in
Painter
v Strauss
[25]
was cited as authority for that proposition in these latter cases
but, on closer scrutiny, it is not. It involved a farmer who,
after
having rented out land, revoked the authority he had given to his
tenant ‘to arrange with the Department of Irrigation
for the
supply of water to the land’. The precise nature of the right
revoked does not appear from the judgment, although
at first blush it
appears to have been contractual – which, if it was, would not
have been protected by the mandament. (Counsel
for the landowner,
however, appears to have conceded that the right was capable of
spoliation.) In any event, whatever the nature
of the right revoked
may have been, the court appears to have regarded it, rightly or
wrongly, as similar to that of a servitude.
The latter is of course
capable of being registered, and would clearly be an incident of the
possession enjoyed by the holder of
a dominant tenement.
[26]
If that was so, it is a far cry from a mere personal right extended
by contract which in no way attaches to property. The decision
is
thus not authority, as appears to have been accepted by the
subsequent decisions which referred to it, for the proposition that
the mere supply of water or electricity to a property, in itself and
without more, constitutes an incident of the possession of
that
property, protectable by the mandament.
[18]
Furthermore, examination of recent decisions of this court shows the
fallacy of such a proposition. Spoliation was granted
in
Bon
Quelle
not because of the mere existence of the supply of water, but because
such supply had been received in the exercise of the rights
of a
servitude holder. And in
Impala
Water v Lourens
,
[27]
which I have already mentioned, the mandament was available as the
right to receive water was not a mere personal right.
[19]
However, in the further decision already mentioned,
Firstrand
v Scholtz
,
it was held that the mandament was not available to enforce the
re-establishment of a water supply. In that matter the first
appellant had supplied water through a pipeline to several farmers
within an irrigation area. The right to receive water through
the
pipeline was governed by agreements concluded with the farmers and
was provided pursuant to payment of a fee for a period ending
31
December 2004. Because the parties were unable to agree on a fee
payable thereafter, the appellants ceased to deliver water
from 1
January 2005. The respondents, who owned properties that had been
serviced by the pipeline, brought spoliation proceedings
for
restoration of the supply. They succeeded in the court of first
instance but failed in an appeal to this court, which held
that they
had not been deprived of quasi-possession of any statutory water
rights which they were entitled to exercise, but mere
contractual
rights relating to the use of the pipeline, which had expired.
[20]
In these cases the mere existence of the water supply which was
terminated, was held in itself to be insufficient to constitute
an
incident of the possession of the properties, and that more than a
purely personal right was required in order to show that
to be the
case.
[21]
This was echoed in
Telkom
v
Xsinet
,
[28]
a case which is probably the most comparable to the present in that
it involved the supply by Telkom of electronic impulses to
the
Xsinet’s premises, thereby providing the telephone and
bandwidth system used by it to conduct its business as an internet
service provider. Alleging that Xsinet was indebted to it in respect
of another service, Telkom disconnected the supply. This court
did
not accept that the use of the bandwidth and telephone services
constituted an incident of the possession of the property,
even
though those services were used on Xsinet’s premises. It
observed that it would be both artificial and illogical to
conclude
that the use of the telephone, lines, modems, or electrical impulses
had given Xsinet possession of the connection of
its property to
Telkom’s system.
[29]
It
also rejected the contention that Telkom’s services could be
restored by the mandament as those services constituted ‘a
mere
personal right and the order sought is essentially to compel specific
performance of the contractual right in order to resolve
a
contractual dispute’.
[30]
[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.
[31]
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 possession
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.
[23]
In the light of this conclusion, it is necessary to revert to the
facts of the present case. It is common cause that what had
been
installed on Ms Masinda’s property was a prepaid system using a
meter box that someone had wired into Eskom’s
grid. This system
was used in conjunction with a prepaid card in order to effect the
supply. Electricity is purchased using the
individual number of the
meter which is reflected on the card. The receipt issued in respect
of the transaction bears a coded number
which, once typed into the
meter, registers a credit in respect of the amount of electricity
purchased. The supply of electricity
to Ms Masinda’s property
was therefore dependent upon it being paid for in advance.
[24]
In seeking restoration of her electricity supply, Ms Masinda’s
claim could hardly have been more terse. She said no more
than that
Eskom’s officials had unlawfully disconnected the supply of
electricity to her house and the prepaid meter, and
asked that it be
reconnected to the national grid. There was no attempt to show that
such supply was an incident of her possession
of the property. She
relied solely upon the existence of the electrical supply to justify
a spoliation order. In the light of what
is set out above, this was
both misplaced and insufficient to establish her right to such an
order.
[25]
In addition, there is the common cause fact that Ms Masinda purchased
her electricity on credit through the prepaid system
which I have
described. In these circumstances, her right to receive what she had
bought flowed not from the possession of her
property, but was a
personal right flowing from the sale. Similar to the case in
Xsinet
,
her claim was essentially no more than one for specific performance
(and to the limited extent of a supply worth no more than
the unused
credit still due after her last purchase). This personal, purely
contractual right, cannot be construed as an incident
of possession
of the property. As the mandament does not protect such a contractual
right, for this reason too the claim ought
to have been dismissed.
[26]
This conclusion renders it unnecessary to decide the further
ancillary issue, namely, whether Eskom was entitled to invoke
the
provisions of reg 7 of the Electrical Installation Regulations,
2009
[32]
in order to remove
the installation on Ms Masinda’s property. It was argued
on her behalf that the regulations operated
solely in an industrial
and not a domestic environment. The full court in
Eskom
v
Nikelo
expressed
its reservations as to their applicability in circumstances such as
the present.
[33]
But as it is
an issue unnecessary to decide, it is undesirable to comment further
on the matter.
[27]
For these reasons the following order will issue:
1 The appeal is
upheld, with costs.
2 The order of the
court a quo is set aside, and substituted with the following:
‘
The
application is dismissed, with costs.’
______________
L
E Leach
Judge
of Appeal
Appearances
For
the Appellant: T J M Paterson SC
Instructed
by: Makaula Zilwa Inc, Sandton
Matsepes Inc,
Bloemfontein
For
the Respondent: J L Hobbs
Instructed
by: L Jikela Attorneys, Mthatha
Webbers,
Bloemfontein
[1]
Sections 2
and
3
of the
Eskom Conversion Act 13 of 2001
.
[2]
See eg
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality & another
[2017] ZASCA 118
;
[2017] 4 All SA 624
(SCA) para 31.
[3]
Nino
Bonino v De Lange
1906 TS 120
at 122 confirmed by this court in
Bon
Quelle (Pty) Ltd v Otavi Municipality
1989
(1) SA 508
(A) at 511H-I (
Bon
Quelle
).
[4]
See eg D G
Kleyn
Die
Mandament Van Spolie In Die Suid-Afrikaanse Reg
LLD dissertation University of Pretoria (1986) at 300-301 and the
cases there mentioned.
[5]
Eskom v
Nikelo
[2018] ZAECMHC 48 (21 August 2018).
[6]
Bon
Quelle
at
513H-I.
[7]
This may
include doing more than simply restoring possession. It requires
restoration of the property to its former state. See
Zinman
v Miller
1956
(3) SA 8
(T).
[8]
Tswelopele
Non-Profit Organisation & others v City of Tshwane Metropolitan
Municipality & others
[2007]
ZASCA 70
;
2007 (6) SA 511
(SCA) affirmed in
Ngomane
& others v City of Johannesburg
[2019]
ZASCA paras 18-20. See also
Rikhotoso
v Northcliff Ceramics
1997
(1) SA 526
(W) at 535B-C.
[9]
Paragraph
24. This may cast doubt on the grounds of the judgment, but not the
result, in
Fredericks
& another v Stellenbosch Divisional Council
1977
(3) SA 113 (C).
[10]
Paragraph
23.
[11]
Ngqukumba
v Minister of Safety and Security & others
[2014] ZACC 14
;
2014 (2) SACR 325
(CC).
[12]
Paragraph
15.
[13]
Yeko v
Qana
1973 (4) SA 735
(A) at 739D-G;
Bon
Quelle
fn
3 at 512A-B;
Ivanov
v North West Gambling Board & others
[2012]
ZASCA 92
;
2012 (6) SA 67
9SCA) paras 23-25. But see
Parker
v Mobil Oil of Southern Africa (Pty) Ltd
1979 (4) SA 250 (C).
[14]
It is
presumed to have been negligent if anyone suffers damage or injury
caused by means of electricity generated, transmitted
or distributed
by it. See s 25 of the Electricity Regulation Act 4 of 2006 and
Grootboom
v Graaff-Reinet Municipality
2001
(3) SA 373 (E).
[15]
Cf
Zulu
v Minister of Works, KwaZulu Natal & others
1992 (1) SA 181
(DC) at 190I-J.
[16]
Telkom SA
Ltd v Xsinet (Pty) Ltd
2003 (5) SA 309
(SCA) para 9.
[17]
See further
Bon
Quelle
fn
3 at 514D-516E.
[18]
FirstRand
Limited t/a Rand Merchant Bank & another v Scholtz NO &
others
[2006] ZASCA 99
;
2008 (2) SA 503
(SCA) para 13.
[19]
The judgment
used the Afrikaans word ‘gebruiksreg’.
[20]
Impala
Water Users Association v Lourens NO & others
2008 (2) SA 495 (SCA); [2004] 2 All SA 476 (SCA).
[21]
Footnote 5.
[22]
Naidoo v
Moodley
1982 (4) SA 82
(T) at 84A-E.
[23]
Froman v
Herbmore Timber and Hardware (Pty) Ltd
1984
(3) SA 609
(W) at 610G-611D.
[24]
Nisenbaum
and Nisenbaum v Express Buildings (Pty) Ltd
1953
(1) SA 246 (W).
[25]
Painter v
Strauss
1951 (3) SA 307
(O) at 318F-H.
[26]
See the
judgment in
Bon
Quelle,
fn 3 above.
[27]
Footnote 12.
[28]
Telkom
fn
8.
[29]
Paragraphs
12 and 13.
[30]
Paragraph
14.
[31]
Zulu
at 186E-190G.
[32]
Occupational
Health and Safety Act, 1993
Electrical Installation Regulations, GN
R242,
GG
1975, 6 March 2009.
[33]
Paragraph
28.