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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 16/05/2008

Case no: 29969/08

UNREPORTABLE

In the matter between:

VANé THEUNISSEN APPLICANT

And

CITY COUNCIL OF TSHWANE

METROPOLITAN MUNICIPALITY RESPONDENT

JUDGMENT

MAVUNDLA, J

[1] This matter came before my brother Ledwa J on urgent basis on 14 March 2008. The matter was by agreement, which was made an order of the court and postponed to 15 April 2008 without urgency being decided. The respondent was ordered to file its opposing affidavit, if any, by no later than 26 March 2008, with the replying affidavit to be filed by the applicant no later than 4 April 2008. It was further ordered that pending the finalisation of this matter, paragraph 2 of the notice of motion dated the 13 March 2008 will operate as an interim order.

[2] Paragraph 2 of the notice of motion reads as follows:

"2 That the Respondent be directed to immediately restore the electricity supply to the Applicant's residence, namely HOLDING 145 HEATHERDALE AGRICULTURAL HOLDING, AKASAI, PETORIA, GAUTENG PROVICE and not to interrupt the same again, unless an order of Court directs otherwise."

[3] The question of urgency was subsequently argued before me as well as the point in limine, namely that the applicant does not have locus standi to bring this application, as well as the merits of the case.

BACKGROUND

[4] According to the applicant, some few years back she entered into a contract with the respondent for the supply of water and lights to her residence. She says that she is resident at Holding 145 Heartherdale Agricultural Holdings, Akasis, Pretoria, Gauteng Province. In confirmation of the averment that there was an agreement for the supply of water and lights, she has attached annexure "V1 ". She says that the respondent opened up an account for the supply of water and lights under account number 1044022071. Annexure "V1 ", which is dated the 4 March 2008, is in the applicant's name and it also reflects debits in respect of electricity and water. It reflects a current account of R 1233, 12, with an amount of R714, 50 being due as on 4 March 2008. The applicant states that the registered owner of her residence is currently the legal entity, Wild Wind Investments 110 CC (IN LIQUIDATION). Prior to Wild Wind Investments 110 CC (in liquidation) acquiring the ownership of her residence, the applicant was also the registered owner thereof and that there is currently litigation pending in that regard.

[5] The applicant states that she has since realised that the respondent has opened a separate rates and taxes account in the name of Wild Wind Investments 110 C, under account number 5001295495 on 6 March 2008. She came to know that the respondent has cut off the electricity supply to her residence. She made attempts to communicate with the respondent's personnel with the view to establish the reason for problem relating to the cutting of the supply of electricity to her. He efforts came to no avail. An amount of R18 000, 00 was demanded of her and it was further demanded by the respondent from her that she must enter into a further written agreement to payoff a sum of R31 000, 00. This latter amount is supposed to be owed by Wild Wind Investments 110 CC (in liquidation) for outstanding rates and taxes. She then approached her attorneys who in turn despatched a letter dated 6 March 2008 to the respondent informing the latter that its action is unlawful and demanding a reconnection of the said electricity supply by 6 March 2008. In this regard she has attached annexure "V3" which is the aforesaid letter of 6 March 2006. There has been no response to the aforesaid letter on the part of the respondent. The applicant further states that on 11 March 2008 an Ms Elize van Vuuren from respondent's offices phoned her in response to her attorney's letters and informed her that some settlement agreement has been prepared and that she must react immediately and attend to the signing thereof. She advised Ms van Vuuren to remit the said agreement to and communicate with her attorney. She subsequently interacted with her attorney who informed her that there is no correspondence received from the respondent.

[6] She further states that she entered into a binding contract in terms of which the respondent is obliged to supply her with water and electricity and that she in turn make monthly payments in that regard. She further states that the contract is regulated by the law of contract, and that the respondent is obliged by the provisions of the Municipality By-laws and the Constitution Republic of South Africa Act 108 of 1996 to provide her with supply of water and electricity because these are essential and basic commodities. She points out that her accot is up to date and overpaid in an amount of R714, 50. She further states that the respondent's conduct is unreasonable and unlawful and is contrary to the duties and responsibilities placed on the respondent by the constitution.

[7] The applicant further states that the respondent is perfectly entitled to claim and/or initiate whatever control measures against Wild Wind Investments 110 CC (in liquidation). She states that the respondent is not left without a claim in respect of the amount owing in that the registered owner of the property is liable for the rates and taxes relating to the relevant property. She further states that there would be no prejudice to the respondent were the respondent, instead of acting against her but to simply claim against Wild Wind Investments 110 CC (in liquidation) in respect of the alleged outstanding rates and taxes. She further states that the application is urgent since the electricity supply was cut off on 5 March 2008 and the respondent failed to respondent to the correspondence that was directed to it.

[8] The respondent in its answering affidavit points out that the relevant property was originally registered in the name of the applicant's father who is since deceased. It states further that the applicant as the daughter of the deceased inherited the relevant property as a result of the distribution of the deceased's estate. The property was initially registered in the applicant's name during 2001 under deed of transfer T119808/2001. As the result of the property being registered in the name of the applicant, the electricity account changed into applicant's name. It is on this basis that the applicant has been receiving accounts for electricity consumption in her home.

[9] The respondent states that during 2004 the property was then transferred into the name of Wild Wind Investments 110 C. The rates and taxes account for the property would during the transfer of the property have automatically been transferred into the name of the new owner which receipt was in conflict with its bylaws because at that stage the applicant did not have an agreement in writing with the respondent. The applicant, so is stated, should have, at the time when the property was transferred into a third party's name, applied to the respondent for a new agreement for the supply of electricity.

[10] According to the respondent, provision of section 4 of the Tshwane Electricity Bylaws provides that no person is entitled to use an electricity supply (new or existing) or consume electricity from the municipality unless such person has entered into an agreement in writing with the municipality for the consumption of such electricity. It further states that if a person uses an electricity supply without entering into an agreement with the municipality, the supply must disconnected immediately and that person is liable for the costs of electricity used. It further pointed out that section 4 of the Electricity Supply Bylaws further provides that in a case where an applicant for electricity supply, an occupier or consumer is not a registered owner of the premises, as in the case of the applicant, an agreement in writing between the owner of the premises and the consumer for the rendering of a connection is required beforehand. The respondent further states that before the applicant could enjoy the use and consumption of electricity from the respondent, she had to provide the respondent with proof in writing from the owner of the premises that she is entitled to reside on the premises. It is contended that the applicant is not entitled to compel, as she tries to, the respondent to provide her with electricity because she lacks the necessary locus standi for the relief she seeks.

[11] The respondent further states that the electricity supply was disconnected on 5 March 2008. The application papers were signed and served on it on 13 March 2008. The period of about eight days after the electricity supply was cut off lapsed, before the applicant brought this application. The applicant, so it is contended, did not comply with the rules in the sense that in her notice of motion she did not provide any particular time and date for the filing of the of further papers in the event the matter being opposed. In this regard the respondent prays that the matter should be struck off the roll for lack of urgency and failure to comply with the rules. The respondent further states that the applicant, through her attorney, failed to provide any evidence in respect of the liquidation proceedings against the owner of the property. The respondent further points out that Wild Wind Investments 11 CC was dissolved on or about 6 July 2007.

[12] With regard to the non-compliance with the rules, the respondent has fully answered to the allegations contained in the founding affidavit of the applicant. Besides, the respondent has not stated nor demonstrated that it has been prejudiced by the aforesaid failure to specify the time and dates of filing of further papers, as required by the rules. In the premises, I am of the view that noting much turns around this point.

In respect of the failure on the part of the applicant to furnish any information regarding the liquidation of Wild Wind Investments 110 CC (in liquidation), I am not aware of any statutory obligation on the part of the applicant to furnish such information. This point too is of no consequence.

[13] It has been submitted on behalf of the applicant that having regard to the fats of this matter, the respondent has terminated the electricity supply on the basis that the registered owner, Wild Wind Investment CC, has not paid the rates and taxes. The defence of the respondent is that it has a statutory duty to terminate the services because of the non-payment of the rates and taxes by the owner of the property, with an alternative defence that there is no written agreement between the respondent and the applicant for the supply of such services. It is contended on behalf of the applicant that the facts of this case are similar to those in the matter of Bon Quelle (Edms) Bpk v Muhisipalitiet van Otavi¹ except that the roles of "service provider" and "consumer" were reversed, in that the company was the owner of the fountain providing water to the municipality. The head note to the decision provides as follows:

"Head note; Kopnota

It can be accepted as correct that the mandament van spolie is available for the restoration of the lost possession (in the sense of quasi-possessio which consists of the actual use of the servitude of a right of servitude. In such legal proceedings it is unnecessary to prove servitude. Although it might appear to be illogical that the servitude does not have to be proved, it is the status quo which has to be restored by the, mandament van spolie until it is determined whether the servitude indeed exists."

[14] Mr. De Klerk, on behalf of the applicant further pointed out that the Appellate Division in its judgment, relied on the old judgment of Nino Bonino v De Lange 1906 TS 120;

"It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to an inquiry or investigation into the merits of dispute. It is not necessary to refer to any authority on a principle so clear."

[15] It is further submitted that in the matter of Bon Quelle (Edms) Bpk v Munisipalitiet van Otavi² the court stated that:

"… it was specifically held that a right to obtain water or electricity can form the subject of spoliation proceedings, and that it is therefore available for the restoration of the lost possession (in the sense of quasi possession which consists of the actual use of the servitude) of a right of servitude."

[16] It has been further submitted that the respondent has acknowledged in its answering affidavit that the applicant as the heir of her father's estate inherited the property. The property was registered in the name of the applicant and according to paragraph 4.3 the account of electricity changed into the applicant's name during 2001. The applicant has been using electricity and water and has been receiving the accounts for electricity consumption in her name and therefore on principles of Plascon Evans Paints Ltd v Riebeeck Paints Pty) Ltd³ it can be accepted that despite respondent's averment to the contrary, the applicant had no contract with the respondent for the delivery of electricity and water to her but was a precarious user thereof at the mercy of the respondent until such time as the respondent insisted on a written contract and that without placing the applicant in mora to enter into a written agreement, which was not done in casu, the respondent is not entitled to take the law into its hands and terminate the service of the supply of electricity.

[17] On behalf of the respondent Mr. Mojapelo has submitted that the relevant property was transferred during February 2006 by the applicant into the name of Wild Wind Investments 110 CC at the purchase of R2 300, 000, 00. The applicant continued to receive electricity account in her name without informing the respondent of the change of ownership of the property. The supply and the use of the electricity are under the circumstances unlawful. The property rates and taxes account for the property is in arrears in the amount of R31 000,00 and on the basis thereof the respondent instituted credit control action which was the discontinuation of electricity supply to the disputed property. It is submitted that section 28 of the Municipality Property Rates Act empowers the respondent to attach the rental paid by an occupant for the purposes of recovering outstanding property rates and taxes. Provision of section 5(2) of the respondent's Credit Control By-laws empower the respondent to restrict, disconnect or terminate any municipal services rendered by the respondent notwithstanding that the person who entered into an agreement for the supply of services with the respondent and the owner are different persons. The provisions of section 4 of the respondent's Electricity Supply By-laws excludes any person to use or consume any electricity supply (new or existing) from the respondent unless such a person has entered into an agreement in writing with the municipality for the consumption of such electricity. This section further provides that if a person uses electricity supply without entering into an agreement with the respondent, the supply must be disconnected immediately.

[18] The applicant, so it is contended, does not have necessary locus standi to compel the respondent to provide however with electricity since the property is not registered I her name. It is further submitted that the applicant does not have a right, I this instance to electricity, which the applicant clearly has failed to establish for the basis of meeting the requirements for a final interdict. It is submitted that the supply of electricity and the use of thereof by the applicant was an act of illegality and that the termination of the supply of electricity is simply putting an end to an act of illegality. In this regard reliance is made of the decision of Zulu v Minister of Works, Kwa- Zulu and Others⁴. It is contended that the applicant is seeking the restoration and reconnection of electricity supply to her premises, which order is tantamount to a spoliation order which is not a competent order under the circumstances of this case. In this regard I have been referred to the following passage of Zulu v Minister of Works, Kwa-Zulu and others matter (supra):

"I am of the view that since the applicant's use of water did not constitute the use of this servitude right and since any right which the applicant might have had to have water supplied to him did not constitute an incident of his possession or control of corporeal thing (i.e. his dwelling house), it would not be competent to grant a spoliation order ordering the respondents to resume supplying the applicant with water. To hold otherwise would in effect mean that the Court would grant an order for specific performance of a contractual obligation in proceedings where the respondent is precluded from adducing evidence to disprove the existence of the obligation. If a spoliation order were to be competent in the present case and were to be granted, the respondents would have to go to Court and obtain a judgment authorising them to terminate the supply of water. If they were to fail to convince the Court that they have a right to terminate the water supply they would presumably be compelled to pump water free of charge to the applicant's house for ever."

[19] The respondent further relies on the matter of Plaatjie and Another v Olivier NO and Others⁵ wherein the Court stated the following: "Since the applicant's use of the water did not constitute the use of a servitutal right and since any right which the applicants might have had to have water supplied to them did not constitute an incident of their possession of control of the corporeal thing (ie. their dwellings), it would not be competent to grant a spoliation order compelling the first respondent to resume the supplying the applicants with water."

[20] I have further been referred to the matter of Telkom SA Ltd v Xsinet (Pty) Ltd⁶. Where the Court stated that:

"[14] In the alternative counsel argued that the quasi-possession of the right to receive Telkom's telecommunication survives consisting of the actual use ('daadwerklike gebruik') of those services must be restored by the possessory right remedy. This is, however a mere personal right and the order sought is essentially to compel specific performance of a contractual right in order to resolve a contractual dispute. This has never been allowed under the mandamnet van spolie and there is no authority for such an extension of the remedy. See, for example, Zulu v Minister of Works, Kwa-Zulu, and Others (1992 (1) SA 181 (d) AT 190b-e.; Van Der Wait 1989 (30 THRHR 444 at 449; Kleyn 'Possession' in Zimmerman and Visser Southern Cross: Civil Law and Common Law in South Africa (1996) at 830; Harms in Joubert (ed) The law of South Africa vol 11 (1^st re-issued para 343 fn 4 at 395; and Sonnekus Sakereg Vonnisbundel 2^nd ed at 168."

[21] I find it necessary to once more to refer to the matter of Zulu v Minister of Works, Kwazulu. And Others⁷ and cite Thirion J where he said:

"In none of these cases was an order sought to compel the spoliator to supply water and electricity to the applicant (which in essence is what is asked for in the present application.

The mandament van spolie is a possessory remedy by which a person who has been illicitly deprived of his possession is restored to his possession before the merits of the dispute regarding the lawfulness of his possession are enquired into. An applicant for a spoliation order has to prove that he had possession.

In the present case the applicant asks for an order ordering the respondent to supply water to him. The applicant has never had possession of the water. He cannot therefore found his claim on loss of physical possession. He however, it has been held that also 'the possession of incorporeal rights is protected against spoliation'. (Nienaber v Stuckey 1946 AD 1049 at 1056.) In truth the mandament van spolie is not concerned with the protection or restoration of rights at all. Its aim is to restore the factual possession of which the soliatus has been unlawfully deprived. The question of the lawfulness of the spoliatus' is not enquired into at all"

[22] Thirion J, in the Zulu matter⁸, with regard to incorporeal rights, referred to the matter of Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A) at 514H where it was stated that "an incorporeal matter such as servitude is naturally intangible for physical possession in the same sense as that expression is used with regard to a tangible matter, but well for quasi possession which consists of actual utilization of the servitude ... In the same context of mandament van spolie, as it would appear later, the actual use of the alleged servitude takes the place of possession of the physical corporeal."⁹. Thirion J at 188H pointed out that "If the protection given by the mandament van spolie were to be held to extend to the exercise of rights in the widest sense then supposedly rights such as the right to performance of a contractual obligation would have to be included-which would be to extend the remedy beyond its legitimate field of application and usefulness."

[23] In casu the applicant is not in possession of the electricity supplied. What the claimant is claiming is the restoration of " a non-servitutal right' of having electricity supplied to her, vide Zulu matter.¹⁰ In casu we are dealing with an incorporeal right. In the Zulu matter the Court held the view the applicant's use of water did not constitute the use of a servitutal right and since any right which the applicant might have had to the water supplied to him did not constitute an incident of his possession or control of a corporeal thing (ie. his dwelling house), it would not be competent to grant a spoliation order ordering the respondent to resume supplying the applicant with water.

[24]. In order to succeed on mandament van spolie, the applicant must prove that she was in peaceful and undisturbed possession of the thing and she was unlawfully deprived of such possession; vide Zulu matter (supra) at 190 I where it is said ''The applicant for spoliation order has to prove that he was unlawfully dispossessed. Sillo v Naude 1929 AD 21." Vide also Denmar Trading BK v Corporation Retail S.E (PTY)¹¹ where the Court said:

"[28] In order to obtain a mandament van spolie, an applicant must show that he was in peaceful and undisturbed possession of the thing and was unlawfully deprived of such possession.

[29] …

[30] The main purpose of the mandament van spolie is to preserve public order by retraining persons from taking the law into their own hands abd by inducing them to submit the matter to the jurisdiction of the courts. As has been stated 'peace in a community could not be maintained if evry person who asserted that he had a claim to a particular thing was entitled to resort to self help to gain possession of a thing', see Parker v Mobil Oil of Southern African (Pty) Ltd 1979 (4) SA 250 (NC) AT 255C-D; George Municipality v Vena and another 1989 (2) SA 263 (AO at 271I ; LAWSA vol 27 paragraph 265.

[31] In Runsin Properties (Pty) Ltd v Ferreira¹² Addelson J stated;

"The essence of the remedy by way of spoliation is that it is a robust one. Discretion and consideration of convenience do not enter into it. I do not think it is necessary to cite authority for the proposition other than to refer to the convenient summary in Willie's Principles of South African Law 7ed at 199 as follows:

"Consequently, if a person without being authorized by a judicial decree dispossesses another, the court, without enquiring into the merits of the dispute, will summarily grant an order for retstoration of possession to the applicant as soon as he has proved two facts, namely that he was in possession and that he had been despoiled of possession by the respondent. The policy of the law is neatly summed up in the maxim spoliatus omnia restituenda est.'

[32] It is trite that common-law possession consists of both an objective and subjective element, namely the objective or physical element, corpus, detention and subjective or mental, animus. See S v R 1971 (3) SA 798 (T) at 801A B; LAWSA vol 27 paragraph 246. Physical control over a building is exercised by the person who occupies it, (R v Betelezie 1941 TPD 191; LAWSA vol 27 paragraph 28) or who holds the key to the building. See Malan v Dippenaar 1969 92) SA 59 (0) at 62 H-23a-b; Liquidators of Royal Hotel Co v Rutherford 1906 CTR 179 at 181; LAWSA vol 27 paragraph 248."

[25] In respect of non-incorporeal "things" possession to such can only be through a servitude right. Where the applicant is unable to show such right, then his application, just like where he is unable to show that he was in physical control of a corporeal thing, he cannot succeed on spoliation. In the matter of De Beer v Zimbali Estate Management Association (Pty) Ltd & another¹³ Nicholson J looked at various cases, including the Zulu matter, which dealt with the issue of mandament van spolie and concluded at para [54] "that the mandament van spolie is there to protect possession not access. Such possession must be exclusive in the sense of being to the exclusion of others."

[26]. In the matter of First Rand Limited t/a Rand Merchant & another v Scholtz NO & others 14 per Malan AJA, stated as follows:

"[12] The mandament van spolie, is a remedy to restore to another ante omnia property dispossessed "forcibly or wrongfully and against his consent". It protects the possession of movable and immovable property as well as some forms of incorporeal property. The mandament van spolie is available for the restoration of quasi possessio of certain rights and in such legal proceedings it is not necessary to prove the existence of the professed right; this is so because the purpose of the proceedings is the restoration of the status quo ante and not the determination of the existence of the right. The quasi possession consists in the actual exercise of an alleged right or as formulated in Zulu Minster of Works, in the KwaZulu & others in "die daadwerklike uitoefening van handelinge van sodanige reg uitgeoefen mag word"

[13] The mandament van spolie does not have a "catch-all function" to protect the quasi possession 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 possession is deserving of protection by mandament. Kleyn seeks to limit the rights concerned to "gebruiksregte", such as rights of access of way, a right of access through a gate or the right to affix a name plate 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 mandament. The right held in quasi- possessio must be a "gebruiksreg" or an incident of possession or control of the property."

[26] In casu, on the strength of the above mentioned authorities, the conclusion to be reached, would be that the applicant did not possess electricity which she is no longer supplied with, nor does she have a servitude right entitling her to be supplied with electricity. On the contrary, on her own version, she has a contract with the respondent for the supply of electricity; vide para 6 supra. The question of servitude does not therefore come into play.

[27] The applicant has also prayed for an alternative relief. It is under this relief that I propose to refer to section 25 of the Constitution of the Republic of South Africa Act 108 of 1996, which provides as follows:

"25. Property- (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

26. Housing- (1) Everyone has the right to have excess to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.

(3) No one ,ay be evicted from their home, or have their home demolished, without an order of court made after considering of all the relevant circumstances. No legislation may permit arbitrary evictions."

[28] In the matter of President of RSA V Moderklip Boerdery (Pty) Ltd¹⁵, the court recognized the fact that there is a need for the court to balance the respective rights of litigants in the context of protecting the constitutional rights of the litigants enshrined in the constitution. In my view and as I understand the import of the passage I have just referred to, each case would have to be assessed on its own merits and circumstances. This must be so having regard to the fact that we live in a constitutional democracy where the rights of individuals need to be protected. In this particular case there is no doubt that the applicant has been occupying the relevant property for a long period. The respondent has been supplying her with electricity. The applicant has been paying for such supply and her account is up to date. These facts are not in dispute. In a situation such as in casu, in my view, a strict and robust approach where the respondent can summarily and without any notice terminate the supply of electricity is not to be countenanced.

[29] In the matter of Johannesburg Municipal Fund v City of Johannesburg¹⁶ in discussing section 195 of the Constitution pointed out that public administrators must be accountable, act lawfully and not arbitrarily.

In the matter of President of RSA Modderklip Boerdery (Pty) Ltd¹⁷, Langa ACJ as he then was, stated as follows:

"Thus section 34 of the Constitution provides as follows:

'Everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where applicable, another independent and impartial tribunal or forum.'

[40] In Chief Lesapo v North West Agricultural Bank and Another, Mokgoro J pointed to some of the consequences that s34 and the rule of law seek to avoid when she stated that:

'The right of access to court is indeed foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable.'

(footnote omitted)

[41] The mechanisms for the resolution of disputes includes the legislative framework, as well as mechanisms and institutions such as the courts and an infrastructure created to facilitate the execution of court orders. In this case, the legislative framework includes the provisions of the Act which are directed at assisting both the landowner and the unlawful occupier. In argument, the State has accepted the existence of this obligation, but claimed that it had been fulfilled."

[30] In the matter of Zondi v Mec for Traditional and Local Government Affairs¹⁸ the Court stated as follows:

"[112] The right to notice before an adverse decision is made is a fundamental requirement of fairness. Notice provides a person affected with the opportunity t make representations as to why an adverse decision should not be made. It is a fundamental element of fairness that adverse decisions should not be made without affording the person to be affected by the decision a reasonable opportunity to make representations."

[31] Having considered the authorities that I have referred to hereinabove, I am of the view that having regard to the fact that applicant has been resident at the relevant premises for a considerable period, which fact is conceded by the respondent, and she has been supplied with the electricity for some time, and she has been effecting payment, which account is not in arrears, and this fact too is conceded, a summary and arbitrary decision to terminate her services in the democratic epoch we live in, where there is a protection of the rights of individuals, even illegal occupants as demonstrated in the Modderklip Boerdery matter, is inappropriate. Respondent cannot simply and without much ado suspend the supply of electricity without having given notice to the applicant of its intention to do so and affording the applicant an opportunity to state why this should not be done. This must be so notwithstanding its Bylaws, which must be interpreted in a manner that would make it fall in line with the spirit and purpose of the constitution.

[32] I am further of the view that the applicant has a right of access to the courts, and this must be seen in the context of the circumstances of this case, that she has been resident in the relevant place for a considerable period, and she has been supplied with the electricity by the respondent, and she has been supplied with the electricity by the respondent, and she has been paying for such electricity. To decide otherwise would, in my view, not be compatible with the spirit of the constitution. I am therefore of the view that the contention raised of behalf of the respondent should not be countenanced.

[33] In respect of the aspect of urgency a delay of eight days is in my view not a substantial delay so as to conclude that the matter is no longer urgent. This must be seen in the context that there were negotiations in between the parties.

[34] The applicant seeks that the respondent should be directed to immediately restore the electricity and not to interrupt same again unless an order of curt directs otherwise. I am of the view that to call upon the respondent at every instance to first seek a court order before it can suspend the supply of electricity, so too with water, would burden the finances of the respondent to the prejudice of the general public since such cost would at the end be transferred to the residents in general. Such an order would also hamstrung the respondent form effectively administering its affairs, which it is statutorily charged with and for this reasons I consider it imprudent to make an order such as is couched in the notice of motion. However, I see no reason why a reasonable notice should not be given to the applicant before the respondent can terminate the supply of the services in question. This must be seen in the context that its own Standard Electricity Bylaws in particular section 21 thereof provides as follows:

"To disconnect supply

(1) The Municipality has the right, after giving notice, to disconnect the electricity supply to any premises if

(a) the person liable for payment for the supply or for payment for any other municipal service face to pay any charge due to the municipality in respect of any service which he or she may at any time have received from the municipality in respect of the premises; or

(b) any of provisions from these Bylaws and/or the regulations are being contravened."

[35] The respondent has been supplying electricity to the applicant. The applicant is therefore a consumer as defined in chapter 1 under definition which defines a consumer as follows:

"Consumer means the occupier of any premises to which the Municipality has agreed to supply or is actually supplying electricity or if there is no occupier the person who has entered into a current valid agreement with the municipality for the supply of electricity to the premises or if such a person does not exist or can not be traced or has abandoned of whatever reason is not able to pay the owner of the premises;"

[36] The respondent has been aware that the applicant is occupying the relevant premises. The respondent has been supplying electricity to the applicant all along. Section 4(2) of the relevant bylaw provides as follows:

"If a person uses an electricity supply without entering into an agreement with the municipality, the supply must be disconnected immediately, and the person is liable for the costs of electricity use, as provided for in section 18 of this bylaw."

I am of the view that in a case such as the one of the applicant, the respondent cannot summarily terminate such supply without having given due notice to the applicant.

[37] In the premises, I am of the view that I should grant the order under alternative relief, as set out herein below:

[38] I have been requested to grant a punitive cost order against the respondent. I am, however, of the view that this is not required in a situation where the respondent which believes that it is acting within the framework of its statutory mandate, that when it so exercises that statutory directive or duty, it should be mulcted with costs. The circumstances in this case do not show that the conduct of the respondent was unreasonable. In the premises I decline the invitation to give punitive cost.

[39] In the premises I make the following order:

(1) That this matter be regarded as one of urgency, and that the non­ compliance with the Uniform Rules of Court pertaining to time periods, service and form be dispensed with in terms of the provisions of Rule 6(12);

(2) That the respondent is directed to immediately restore the electricity supply to the applicant's residence, namely, Holding 145 Heatherdale Agricultural holdings, Akasia, Pretoria, Gauteng Province and not to interrupt the same without giving adequate notice to the applicant of its intention to do so.

(3) That the respondent is directed to pay the costs of this application on party and party scale.

N M MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON: 17 APRIL 2008

DATE OF JUDGMENT: 16 MARCH 2008

APPLICANT'S ATT: FORBAY ATTORNEYS

PLAINTIFFS ADV: MR. LS DE KLERK

RESPONDENTS' ATT: MR. MORE

RESPONDENTS' ADV: MR. MM MOJAPELO.

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