Shanika Investments 85 (Pty) Ltd v City of Johannesburg Metropolitan Municipality and Another (8187-2018) [2018] ZAGPJHC 420 (7 March 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 8187-2018

DATE: 2018-03-07

In the matter between

SHANIKA INVESTMENTS 85 (PTY) LIMITED

and

THE CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY & ANOTHER

JUDGMENT

WEPENER (J): This application serves in the urgent court. The Applicant is the owner of certain erven that fall under the jurisdiction of the Respondents, in particular the 1st Respondent. The Respondent terminated the supply of prepaid electricity to some 68 of the residential units on the erven.

The Applicant seeks a declaration that the discontinuation of the electricity supply is unlawful.

The Applicant based its submissions on a failure of the City to give 14 days advance notice of pending termination, due to an alleged

violation of Constitutional Rights of the tenants of the property and housing, including a supply of electricity. The Respondents case in a nutshell is that the Applicants or tenants have illegally bypassed the meters and were drawing electricity unlawfully.

The Applicants disputed this and averred that the Respondents representative caused the bypass as a temporary measure and undertook

to resolve the problems experienced with the electricity meters at the erven. These representatives were from Voltex, a contractor

appointed by the City to resolve the problems with the meters.

Although counsel for the City submitted that Voltex is not the City, it is quite cleat that the representatives of the City performing its obligations is as if the City itself is performing the function. See Dladla & Another vs City of Johannesburg & Others (CCT) 124/16/2017 ZACC42, 2018 2 BCLR 11 CC, 1 December 2017. Counsel for the City submitted further that the Applicant failed to comply with Section 12 of the Greater Johannesburg Metropolitan Electricity Bylaws which reads:

‘Testing Accuracy of Meters

(1) If a consumer or owner has reason to believe that a meter is not registering correctly, he may give written notice to the council that he requires the meter to be tested, such notice to be accompanied by the charge determined by the council for the testing of meters, whereafter the engineer shall as soon as reasonably possible subject the meter to testing.’

Whether the provision applies to the situation under consideration is debateable but I need not resolve it now. The City indeed

appointed an agent to attend to the problem, but this is not the end of the matter. The City’s further argument was that the electricity connections were illegal and that it was pursuant to the bylaws entitled to disconnect the electricity supply.

The bylaw replied on is Regulation 30 of the City of Johannesburg Credit Control regarding disconnection of services. In terms thereof the City is entitled to terminate the supply of services in certain circumstances, including when there is unauthorised or dangerous use of the service. The City’s submission was that both these conditions pertained and that it was entitled to discontinue the supply of electricity.

The Applicants countered this by stating that it was the City’s representative who caused that very situation to exist. Again, I need not resolve this factual dispute. The City’s right to terminate electricity supply is not without restrictions. Despite the right to terminate supply, this court has held that the right may not be exercised by way of self help. See Midvaal Local Municipality vs Meyerton Gold Club (A30338/14) 2014 ZA GPJHC 256 15 October 2014.

Despite the provisions empowering the City to act, the law requires of it to act fairly by obtaining the sanction of the court. In Midvaal this court said:

‘The Appellant also relied on a passage in Potgieter vs Du Plessis where by referring to Silo vs Naude the court referred to the fact that the conduct of Silo was lawful in that the Respondent was authorised by law to set into motion the machinery of the pound ordinance and the Respondent did not take the law into its own hands.

The action of the Respondent in Silo are to be distinguished from those of the Appellant in this matter. The Appellant did take the law into its own hands, but attempts to justify the actions by reference to the provisions in the bylaws.

It is apparent that the bylaws do not abolish the duty of the Appellant to obtain a court order, should it wish to act pursuant to the provisions of the bylaws. In African Billboard Advertising (Pty) Ltd vs North & South Central Local Councils Durban Levisohn J said:

‘The legal principles applicable to a matter such as the present have been clearly laid down in number of decided cases. In Sithole vs Resettlement Board 1959 (4) SA 115 (W) the court considered that provision of certain expropriation legislation. The Section in question read as follows:

‘Upon the service of any such notice, the ownership in the land described in the notice shall pass to the board free of all incumbents, and the board may after expiry of a period of not less than 30 days from the date of such service take possession of and use of the land.’’’

Williamson J as he then was said at 117 (a – b):

‘The argument addressed to me on behalf of the Applicant is shortly that his right of occupation or use after the period provided for in Section 17(6) is no more than the similar legal right acquired by any such person as for instance a landlord or any other person who acquired a vested right to possess or repossess certain property.

That right always incorporated a further right. If possession or occupation is not given to enforce his right by legal process, that right is a colliery of the right of the person in possession of property, whether movable or immovable, not to be disturbed in his possession except by legal process.’‘

The learned judge continued and said at 117(c – g):

‘The argument shortly for the Respondent is that that position, which is the normal position of persons entitled to possession of property has been disturbed by the provision of Section 17(6).

Of course parliament may, if it deems fit, alter the ordinary principle of law that a person entitled to property is not entitled to enter upon it and take possession himself by force. The right so to act is one which obviously must be conferred in clear language.

The clear principle of our law is that ordinarily speaking, persons are not entitled to take the law into their own hands to enforce their rights. There is a legal process by which the enforcement of rights is carried out.

Normally speaking it is carried out as a result of court being put into effect trough the proper offices of the law such as the Sheriff, Deputy Sheriff, Messenger of the Magistrate’s Court or his Deputy.

Reinforced if necessary by the aid of the police or some such authority. In most civilised countries there exists the same principle that no person enforces his legal rights himself. For very obvious reasons that is so. (I repeat) For very obvious reasons that is so.

If it were not so, breaches of the peace for instance would be very common. It is clear therefore that if you want to enforce a right you must get the officers of the law to assist you in the attainment of your right.

The principle applies equally to the rights of public body, such as Municipalities or Provincial Councils or any similar bodies, and even to state departments. Individual members of the state department normally cannot, in the interest of the department, take the law into their own hands and enforce the state rights without the state having made use of the assistance of the judicial department in order to help it to acquire possession of property to which the state may be entitled.’’

Further at paragraph 14:

‘The matter before us is on all fours with the African Billboard Advertising (Pty) Ltd vs North & South Central Local Councils Durban matter. The Appellant is not exonerated from obtaining a court order.

The bylaws do not absolve the Applicant, and when interpreting the Appellant’s rights with due regard to the words of Levisohn J in African Billboard Advertising (Pty) Ltd vs North & South Central Local Councils Durban the Appellants purported justification to resort to self help must fail. Indeed in George Municipality at 271 (e – f) the Supreme Court of Appeal approved a statement by Friedman J in the court of first instance which read as follows:

‘It is a fundamental principle of our law that a person may not take the law into his own hands and a statute should be so interpreted that he interferes as little as possible with this principle.

In Minister of Finance & Others vs Ramos 1998 (4) SA 1096 (CC) at 1101 (g – i) Cleaver J said:

‘In this connection it should also be borne in mind that where a party opposing an application for a mandament van spolie relies upon the statutory provision in order to support an averment that he was entitled thereby to deprive the Applicant of his possession without recourse to due process of law and that deprivation or possession was therefore lawful.

Such statutory provision must be restrictively interpreted. A person who invokes the protection of such statutory provision will need to establish that he acted strictly within its terms.

See Rikhotso Northcliff vs Ceramics (Pty) Ltd & Others 1977 (1) SA 526 (W) at 530 (f), George Municipality vs Wiener & Another 1989 (2) SA 263 (A) at 271 (e – f). Wrongful deprivation in this context means deprivation against the will of the person and without resort to legal process.

A person cannot under colour of right dispossess another and that is what the Respondent in this case did, because by so doing he takes the law into his own hands and this is something the court cannot and the law will not permit. Nor can a person take advantage of his own wrong act as if he were the judge in his own case.

There is nothing in the bylaw which empowers the Appellant to avoid the law against self help. The reference in the bylaw to a notice is irrelevant to the question of self help.

The Appellant acted unlawfully by removing the advertisements without having resorted to a legal process. In Allisto Crete (Pty) Ltd vs Dickens 1953 (2) SA 644 (SR) 650 it is stated that:

‘Wrongfulness in the context means nothing more than without any special legal right to oust the person from possession.’

I conclude therefore that the court a quo correctly found that the Appellant acted in violation of the Respondent’s rights and properly order that the Respondent be restored to possession of the advertising boards. Spoliatus ante omnia restituendus est.’’’’

Electricity supply is a right protected by the mandament van spolie. See Naidoo vs Moodley 1982 (4) SA 82 (T) quoted with approval in Shoprite Checkers Limited vs Pangbourne Properties Limited 1994 (1) SA 616 (W) at 620, Frohman vs Herbs More Timber & Hardware (Pty) Limited 1984 (3) SA 609 (W), Leriche vs P S P Properties CC 2005 (3) SA 189 (C) at 193 (f – g).

The action of the City by disconnecting the electricity by self help, was thus unlawful and the Applicant is entitled to be restored to the possession it was in prior to the unlawful discontinuing of the electricity. The lawfulness of otherwise of the Applicant’s

electricity connection is not a matter to be determined now. It gets determined in further process. Such is the principles of the mandament van spolie.

It may be determined after the position is restored to the status quo ante. See Ngqukumba vs Minister of Safety & Security 2014 (5) SA 112 (CC) at 117(d). It matters not that a City purported to act under the colour of law i.e. the bylaws. It was unlawful self help. That really brings an end to the matter. The Applicants also relied on an entitlement to receive a pre-termination notice.

See Joseph vs City of Johannesburg 2010 (4) SA 55 at 61.

No such notice was given to the Applicants, resulting in the termination of the supply of electricity similarly being unlawful. The Applicant is accordingly entitled to relief. I issue an order in terms of the draft, as amended by me, marked W.

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……………………………..

WEPENER J

JUDGE OF THE HIGH COURT

DATE: …………..…