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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO. 21682/02

DATE:2002-11-12

In the matter between

CLIFFORD MYELEYELE..................................................................................... First Applicant

PIONEER PLACE............................................................................................Second Applicant
and

PSSIMECO INTERNATIONAL.........................................................................First Respondent

CITY POWER (PTY) LTD............................................................................Second Respondent

JUDGMENT

WILLIS, J: The applicants have approached the court by way of urgency seeking the following relief:

(i) declaring that the first respondent's instructions to the second respondent to disconnect the electricity supply from the flats of the further applicants and the first applicant which instruction the second respondent carried out on 2 November 2002 constitutes spoliation and is unlawful.

(c) directing the second respondent forthwith to reinstall and restore the supply of electricity to the further applicants' flats and the second applicant's flat at Pioneer Place, 12 Roper Street, Berea, Johannesburg, which supply the second respondent cut off on 2 November 2002 pursuant to the instructions of the first respondent;

(d) pending the final decision of this application, the first and second respondents are interdicted and ordered forthwith to refrain from further disconnecting electricity supply to the flats of the further applicants and the flat of the first applicant or otherwise seeing to achieve the objective of evicting the said applicants from their flats at Pioneer Place without first an order of court or their consent to that effect.

There is certain relief sought in what is described in part B of the application, that is final relief which is conditional on the interim relief being obtained.

It is common cause that the first respondent is the owner and the landlord of the block of flats which are occupied by the applicants. It is also common cause that the second respondent is the supplier of electricity to that particular block of flats. In the second respondent's answering affidavit it alleges that it has concluded a service delivery agreement with the City of Johannesburg in terms of which it is authorised, among other things, to supply electricity to consumers within Johannesburg, to collect revenue for such electricity supplied and consumed and to terminate such supply in the event of default r payment by a consumer.

It is common cause that at present the consumer of the electricity supplied to the block of flats is the first respondent. It is also alleged in the answering affidavit that the first respondent is in substantial arrears. The relevant allegations in the second respondents' affidavits read as follows:-

"4.7 During August 2002 the purchase of the property known as Pioneer Place situate at Berea, Johannesburg by Pssimeco International (i.e. the first respondent) represented by Mr Joseph Essen, was finalised. The second respondent then informed the first applicant and further applicants that they should stop paying for services directly to the second respondent and that they must henceforth pay to the landlord, the first respondent.

4.8 The first applicant and further applicants ignored the second respondent's notice and further refused to recognise the first respondent, and in particular Mr Joseph Essen, as their landlord. As a result of this dispute the first applicant and the further applicants stopped payment directly to the first respondent and to their landlord. Attached hereto is a letter dated 31st October 2002 from the first applicant and further applicants' attorneys marked as Annexure AL2.

4.9 The second respondent then noticed that there was an escalation of the electricity consumption figures in the first respondent's account. The first respondent was duly informed of this realisation and he advised the second respondent that he was battling with recoveries for the rental and electricity from the tenants and that he would prefer that the electricity to the property mentioned herein above but cut off.

4.10 At this stage the first respondent's account was already in arrears and in terms of section 11 of the Electricity Act 1987 the second respondent is empowered to discontinue the supply of electricity if the consumer has failed to pay for the electricity consumed. Further to that, the second respondent received instructions from the landlord with whom the second respondent has an account, to terminate the supply of electricity to the property.

4.11 On 7th October 2002 the landlord's lawful instructions were carried out by the second respondent and the electricity supply was terminated. Immediately upon the termination of supply of electricity by the second respondent the first applicant and further applicants reconnected the electricity supply illegally to their respective places.

4.12 The second respondent learnt on or about 6 November 2002 that there was still power in Pioneer Place despite the second respondent's termination of the supply of electricity to the property.

4.13 On 7th November 2002 the second respondent, upon the instruction of the first respondent, and based on the fact that the account was in arrears and the applicants were not effecting payment to the landlord's electricity account, duly executed a level 3 cut off for the supply of electricity to the property. The effect of a level 3 cut off the tenants will not be in a position to embark on illegal connections of electricity. The second respondent concludes by alleging:-

"Save to say that second respondent acted within its rights by terminating the supply of electricity to Pioneer Place due to non-payment of electricity by the residents and its further having acted upon instructions of the landlord with whom the second respondent has an account for electricity supply, the second respondent denies that the termination of the electricity supply to the residents of Pioneer Place constitutes spoliation as if specifically traversed and puts applicants to the proof thereof." Of course it is trite that in applications of this kind it is the answering affidavit of the respondents which must prevail in the event of a dispute of fact. In any event, I do not understand from the submissions of counsel for the applicants that there is any real dispute of fact on the papers. Indeed, i would refer to paragraphs 9 and 10 of the applicants' founding affidavit upon which the applicants in the main base their case:-

"9. Since inception of various leases each further applicant and me have had an integral incident of these leases access to electricity. Hitherto each further applicant and

I have used and enjoyed the benefit of that access peacefully and undisturbed. 10. On Thursday, 7th November 2002, at about 9 a.m. the employees of the second respondent arrived at the premises of Pioneer Place and disturbed our access to electricity by disconnecting the supply of it to our respective flats." In the first place it needs to be noted that it is not the first respondent who has physically interfered with the supply of electricity to the units. In other words, this case differs from a number of other matters where there have been orders requiring the restoration of electricity. The first respondent has not physically - I wish to emphasise - interfered with the supply of electricity to the respective flats. Accordingly, as I see it no order can be made against the first respondent.

Furthermore, it is not the first respondent who supplies the electricity, it is the second respondent who supplies the electricity. If electricity is to be restored an order can only be made requiring the second respondent to do so. I do not see how I can possibly make an order requiring the second respondent to provide electricity when on the papers before me there is no reasonable hope whatsoever that it will be paid. It would make a nonsense of the law if a body such as the second respondent were to be forced by a court to supply electricity with no source of payment.

Furthermore, the second respondent has no contractual relationship with the applicant. The contractual relationship exists between the first respondent and the second respondent. In order to have a legally enforceable right there must be a legal peg upon which one can hang that right. I do not see on what basis the applicants can find a peg upon which to hang their right. They do not have a contractual relationship between themselves and second respondent. As between the applicants and the first respondent, there is no contractual obligation alleged which requires the first respondent to provide electricity. As I already indicated with regard to the common law of spoliation, the application must fail simply because it is not the landlord, the first respondent, who has physically disconnected the supply of electricity.

For these reasons the application must fail and the following order is made:

The application is dismissed with costs.

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