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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2017/44199

Not reportable

Not of interest to other judges

Revised.

23 November 2017

In the matter between:

ZUNGU: VELAPHI                                                                                                  Applicant

and

NILGRA FLATS CC                                                                                            Respondent

JUDGMENT

ADAMS J:

[1]. This is an urgent application by the applicant for a spoliation order against the respondent arising from the latter’s termination of the supply of electricity to the rented residence of the applicant. In his notice of motion the applicant applies for an order inter alia in the following terms:

(a) That the respondent be and is hereby ordered forthwith to restore the electricity supply to the premises situate at number 2 Cranberg Complex, Earls Avenue, Windsor East, Johannesburg (‘the property’); and

(b) Should the respondent fail to comply with the above order (a), the sheriff of this court be and is hereby authorised to take any actions necessary to ensure that the electricity supply is restored to the property.

[2]. The facts of this matter pertinent to this urgent application may be summarised as follows: The applicant and his family occupy the property pursuant to a lease agreement between him and the respondent. The applicant is therefore a tenant of the respondent. The exact details and particulars of the lease agreement between the parties have not been disclosed to me, because, according to the applicant, these particulars are irrelevant to these urgent application proceedings. All the same there is a contractual relationship between the parties in terms of which the respondent lets to the applicant the property for an agreed monthly rental, which presumably includes charges in respect of water, electricity and other municipal charges. On or about the 8^th of November 2017 the supply of electricity to the property was terminated by the respondent, after he had warned the applicant that he would ‘cut’ the supply of electricity unless the applicant brings his rental up to date. This the respondent did because, according to him, the applicant was in breach of the rental agreement. At the relevant time the applicant was in arrears with his monthly rental in an amount of R16 334, and because of this the respondent had advised the applicant that he would ‘cut’ the supply of electricity to the property if the arrear rental was not paid.

[3]. There was a trail of correspondence between the respondent and the applicant commencing on or about the 31^st of October 2017 up to the 17^th November 2017. On Tuesday, the 31^st of October 2017, the respondent warned the applicant that he would be terminating the supply of electricity to property unless the full amount of the arrear rental was paid before 1pm on that day. In response to that demand the applicant on the same day promised to pay ‘the rent money’ by Wednesday, the 8^th of November 2017. At the same time the applicant pleaded in an sms with the respondent not to cut the supply of electricity to his house as his son was busy preparing for exams. The promise by the applicant to pay was not kept, and the respondent terminated the supply of electricity on that day.

[4]. On the 14^th of November 2017 this urgent application was issued by the applicant’s attorneys of record and same was served on the respondent on or about the same day.

[5]. Central to this matter is the issue whether or not the termination of the electricity supply amounts to a spoliation by the respondent. The applicant alleges that he is entitled to the relief claimed because, at all times material hereto, him and his family had peaceful and undisturbed use and enjoyment of the electricity supply ‘as was (his) right as the occupant of the property’. The respondent’s action, in cutting the electricity, was unlawful, so the applicant contended, because it amounted to self – help.

[6]. During the hearing of argument in the matter, the applicant’s Counsel referred me to the following two cases in support of his contention that the respondent’s actions amount to spoliation: Joseph and Others v City of Johannesburg and Others, 2010 (4) SA 55 (CC), and City of Cape Town v Strumpher, 2012 (4) SA 207 (SCA). These cases are clearly distinguishable from this matter for the simple reason that the actions in both matters were against public administrative bodies, which were local authorities with statutory duties and constitutional imperatives.

[7]. Importantly, in the Strumpher matter, which in any event related to the supply of water, the SCA, on the authority of Telkom SA Ltd v Xsinet (Pty) Ltd, 2003 (5) SA 309 (SCA), accepted the principle that there is no basis for the granting of a spoliation order in an application to compel the supplier of water to the consumer which amounted to an enforcement of a contractual right. The Court was however of the view that the reliance by the City of Cape Town in that matter was misplaced because, so the SCA held, the City Council has a constitutional and statutory obligations to supply water. The right to water is a basic right. At par [10] the court has this to say:

‘[10] It follows from the above statutory and constitutional provisions that the right to water, claimed by the respondent when he applied for a spoliation order, was not based solely on the contract which he concluded with the City, but was underpinned by the constitutional and statutory provisions discussed above. This view is fortified by the decision of this court in Impala Water Users Association v Lourens NO and Others. … The crucial question which the court, on appeal, had to consider was whether the rights on which the water user relied were merely contractual rights. Farlam JA distinguished the Xsinet decision and came to the conclusion that the personal rights flowing from the water supply contract, which the water user in that case had concluded with the water users association, were replaced or subsumed into rights under the National Water Act, which was the Act that was applicable in that case. In this regard the learned judge of appeal expressed himself in paras [18] and [19] as follows:

“[18] The first question to be considered, in my view, is whether the rights on which the respondents relied were merely contractual and whether the Xsinet decision can be applied. In my opinion, it is not correct to say that the rights in question were merely contractual. It will be recalled that the respondents or the entities they represent were all entitled to rights under the previous Water Act 54 of 1956, which rights were registered in terms of the schedule prepared under s 88 of that Act. These rights were clearly not merely personal rights arising from a contract. The individual respondents and the entities represented by the other respondents all automatically, in terms of para 7.2a of the appellant's constitution, became founding members of the appellant. It is clear therefore that the rights to water which belonged to the individual respondents and the entities represented by the other respondents, insofar as they were replaced by or, perhaps more accurately put, subsumed into rights under the Act, cannot be described as mere personal rights resulting from contracts with the appellant. It follows that, on that ground alone, the Xsinet decision, on which the appellant's counsel relied, is not applicable.

[19] The facts of this case also differ in another material respect from those in the Xsinet case. There it was held (at paras 12 and 13) that the respondent's use of the bandwidth and telephone services in question did not constitute an incident of its use of the premises which it occupied, with the result that the disconnection by Telkom of the telephone lines to Xsinet's telephone and bandwidth systems did not constitute interference with Xsinet's possession of its equipment. In the present case, however, the water rights interfered with were linked to and registered in respect of a certain portion of each farm used for the cultivation of sugar cane, which was dependent on the supply of the water forming the subject-matter of the right. The use of the water was accordingly an incident of possession of each farm which was, in my view, interfered with by the actions of the appellant's servants. Indeed in the Xsinet decision itself it was said at the end of para 12 (at 314C – D):

"Xsinet happened to use the services at its premises, but this cannot be described as an incident of possession in the same way as the use of water or electricity installations may in certain circumstances be an incident of occupation of residential premises.”

In my view, unless the Bon Quelle decision is to be overturned, the respondents have clearly established that the rights to water enjoyed by the individual respondents and the entities represented by the other respondents were capable of protection by the mandament van spolie.'

[8]. The respondent in the present matter is not in the same position as the consumer in the Strumpher matter or the water users in the Impala case. Water users have a statutory right to the supply of water in terms of s 11(1) of the Water Services Act which imposes a duty on a water services authority to ensure access to water services to consumers. In casu, the applicant does not enjoy the same right to the supply of electricity, especially not from the respondent, his lessor. His right against the respondent is purely contractual. Unlike the case in the Impala matter, the applicant’s right to the supply of electricity is not subsumed into any statutory or constitutional rights. His right, as I indicated, is merely a personal right resulting from a contract.

[9]. Applying these principles to this matter, I am of the view that the spoliation order is not the appropriate remedy in the circumstances. A spoliation order is available where a person has been deprived of his possession of movable or immovable property or his or her quasi – possession of an incorporeal. A fundamental principle in issue here is that nobody may take the law into their own hands. In order to preserve order and peace in society the court will summarily grant an order for restoration of the status quo where such deprivation has occurred, and it will do so without going into the merits of the dispute.

[10]. In the present matter the applicant received the supply of electricity from the respondent pursuant solely to a contractual relationship. There is no other basis on which he received the supply of electricity. The applicant’s right to the supply of electricity was merely a personal right flowing from a contract. In the context of this matter this right is not a public – law right to receive electricity, which exists independently of any contractual relationship the applicant has with the respondent.

[11]. I reiterate that the point about this matter is this: The applicant had nothing more than a contractual right to the supply of electricity by the respondent. Therefore, the mandament van spolie is not the appropriate remedy for the enforcement of contractual rights. In reaching this decision I have had regard to the decisions of the Supreme Court of Appeal, in particular Telkom SA Ltd v Xsinet (Pty) Ltd; and FirstRand Ltd t/a Rand Merchant Bank v Scholtz NO and Others, which have held that in order for rights to qualify for protection through the grant of a spoliation order, they must be rights to use property or incidents of the possession or control of property. The purpose of spoliation orders, it is trite, is to stop people from taking the law into their own hands, and to preserve the peace, rather than to order specific performance of a contract.

[12]. There is, in my judgment, no reason in principle why the applicant can claim a reconnection of the electricity supply by means of a spoliation order. It therefore follows that the mandament van spolie is not available to the applicant.

[13]. The applicant’s application therefore stands to be dismissed.

Costs

[14]. The respondent was not legally represented in these urgent motion court proceedings. Its sole member attended at the hearing of the application in person. It was however explained to him that he cannot represent the respondent in court. There was therefore no appearance for the respondent.

[15]. Therefore, I do not intend awarding costs in favour of any one of the parties.

Order

In the result, I make the following order:-

1. The applicant’s urgent application is dismissed.

_________________________________

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

 

HEARD ON:	21st November2017
JUDGMENT DATE: FOR THE APPLICANT:	23rd November 2017 Advocate
INSTRUCTED BY:	Pule Pule Attorneys
FOR THE RESPONDENT:	In Person
INSTRUCTED BY:	In Person

 

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