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South Africa Judgment

South Gauteng High Court, Johannesburg

Tsutsa v City Power Johannesburg (Soc) Ltd (2024/068636) [2024] ZAGPJHC 609 (27 June 2024)

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01

Holding and result

The court found that, although the respondent raised doubts regarding the applicant's prima facie right to electricity supply due to allegations of meter tampering and low purchase history, these doubts were insufficient at this interim stage to deny relief. The respondent failed to address the possibility of suspiciously low consumption in other units, and the applicant was not found to be dishonest. Given the paramount rights of the minor child under section 28 of the Constitution, the court held that urgent restoration of electricity was justified pending final resolution of the dispute. The rule nisi was issued, requiring the respondent to restore power and install a prepaid meter, with all rights reserved for both parties regarding future claims and opposition.

Court disposition

Rule nisi issued; interim restoration of electricity supply ordered pending return date.

Orders

  • A rule nisi is issued, returnable on 27 January 2025, calling upon the respondent to show cause why the order should not be made final.
  • The respondent is to restore power to and supply and install a prepaid meter at the applicant’s premises.
  • Costs reserved.
  • Pending the return day, the respondent is, by 5 July 2024, to restore power to and supply and install a prepaid meter at the applicant’s premises.
  • It is noted and recorded that the respondent has not agreed to any part of this order and that its rights remain intact.
  • The respondent’s rights to claim a fine and the cost of supplying and installing the replacement prepaid meter are reserved.
  • The applicant’s right to oppose any demand or claim by the respondent remains.

02

Material facts

Parties

Leboahang Ruth Tsutsa

Applicant Counsel: Adv Xolisa Hilita

City Power Johannesburg (SOC) Ltd

Respondent Counsel: Adv JMV Malema

03

Procedural history

  1. Posture

    Urgent Application / Rule Nisi Issued; Interim Relief Pending Return Date

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant asserts she uses a prepaid meter, has never tampered with it, and that City Power disconnected her electricity supply without notice. She claims she received no meaningful explanation and was subjected to bureaucratic delays, necessitating urgent court intervention. She denies any wrongdoing and highlights the impact on her minor child.
Respondent
The respondent, through its head of risk assurance and compliance, alleges the applicant tampered with the meter, justifying disconnection without notice. It points to low electricity purchases and an illegal connection discovered during inspection. The respondent argues that illegal connections are dangerous and that the applicant has not disclosed her full purchase history. It reserves its rights to claim fines and costs.

05

Court’s reasoning

  1. 01

    Section 28 of the Constitution

    The rights of minors are paramount in all matters affecting them.

  2. 02

    Setlogelo v Setlogelo 1914 AD 221

    Interim relief may be granted where a prima facie right is established and irreparable harm is demonstrated.

  3. 03

    City Power Johannesburg v Grinpal Energy Management Services (Pty) Ltd [2015] ZAGPJHC 265

    A respondent may disconnect electricity supply where illegal connections are proven, but must act lawfully and proportionately.

06

Ratio, limits and disposition

Ratio decidendi

The court found that, although the respondent raised doubts regarding the applicant's prima facie right to electricity supply due to allegations of meter tampering and low purchase history, these doubts were insufficient at this interim stage to deny relief. The respondent failed to address the possibility of suspiciously low consumption in other units, and the applicant was not found to be dishonest. Given the paramount rights of the minor child under section 28 of the Constitution, the court held that urgent restoration of electricity was justified pending final resolution of the dispute. The rule nisi was issued, requiring the respondent to restore power and install a prepaid meter, with all rights reserved for both parties regarding future claims and opposition.

Obiter and limits

  • The court noted the difficulties faced by the respondent in managing electricity supply and demand under current circumstances.
  • The court recorded that neither party was found to be dishonest at this stage.
  • The respondent's rights to claim fines and costs, and the applicant's right to oppose such claims, were expressly reserved.

Court disposition

Rule nisi issued; interim restoration of electricity supply ordered pending return date.

  • A rule nisi is issued, returnable on 27 January 2025, calling upon the respondent to show cause why the order should not be made final.
  • The respondent is to restore power to and supply and install a prepaid meter at the applicant’s premises.
  • Costs reserved.
  • Pending the return day, the respondent is, by 5 July 2024, to restore power to and supply and install a prepaid meter at the applicant’s premises.
  • It is noted and recorded that the respondent has not agreed to any part of this order and that its rights remain intact.
  • The respondent’s rights to claim a fine and the cost of supplying and installing the replacement prepaid meter are reserved.
  • The applicant’s right to oppose any demand or claim by the respondent remains.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2024] ZAGPJHC 609

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case NO: 2024-068636

1. REPORTABLE:

2. OF INTEREST TO OTHER JUDGES:

3.REVISED

27 June 2024

In the matter between:

LEBOHANG RUTH

TSUTSA

Applicant

(ID NO: 8[..])

and

CITY POWER JOHANNESBURG (SOC)

LTD RESPONDENT

JUDGMENT

WRIGHT J

1. The applicant, Ms Tsutsa lives in a sectional title complex with her three year old daughter. Her unit is one of four in the complex.

2. Ms Tsutsa seeks urgently re-connection of her electricity to her prepaid meter and an order that it not be disconnected until the dispute with the respondent has been resolved.

3. Ms Tsutsa says that she uses a prepaid meter, that she has never tampered with it and that City Power recently and suddenly, without notice disconnected the supply. She says that she was given the bureaucratic run around, hence the application.

4. The answering affidavit by Mr Monyai, the respondent’s head of risk assurance and compliance contains an allegation that Ms Tsutsa has tampered with the meter and for that reason the supply was cut off without notice. Mr Monyai makes the understandable point that illegal connections are dangerous.

5. Mr Monyai says that Ms Tsutsa has not disclosed her history of purchases. A list of purchases for the preceding year is set out in the answering affidavit. According to the affidavit, the amounts purchased are too little for the unit in question.

6. On 22 June 2024, a technician, Mr Mokete, for the respondent inspected the property. Each of the four units has its own prepaid meter. Mr Mokete found that the relevant meter of Ms Monyai is a bulk meter which had held two meters. One, which had been illegally connected was then “disconnected and or removed “. Photos are attached to the answering affidavit.

7. Mr Monyai makes the point that the low purchases, coupled with the illegal connection reflect the ability of Ms Tsutsa to survive over the last year.

8. In reply, Ms Tsutsa raises many points about the reliability of what the respondent says. In particular, she points to many alleged problems relating to what the photos depict.

9. The respondent has cast some doubt, but not sufficient at this stage, on the alleged prima facie right of Ms Tsutsa.

10. However, the boxes for each of the four units are on the complex as a whole but outside each unit. The respondent has not addressed the possibility that the prepaid consumption of the other units is suspiciously low over the last year.

11. I do not read the applicant as dishonest. Nor do I read any of the respondent’s deponents as dishonest.

12. I understand the enormous difficulty of the respondent in present trying circumstances relating the demand for power and the supply of power.

13. However, section 28 of the Constitution places the rights of minors, including the three year old girl in this case as paramount.

ORDER

1. A rule nisi is issued, returnable to the opposed motion roll, 27 January 2025 calling upon the respondent to show cause why the following order should not be made final:

2. The respondent is to restore power to and is to supply and install a prepaid meter at the applicant’s premises.

3. Costs reserved.

4. Pending the return day, the respondent is, by 5 July 2024 to restore power to and supply and install a prepaid meter at the applicant’s

premises.

5. It is noted and recorded that the respondent has not agreed to any part of this order and that its rights remain intact.

6. The rights of the respondent to claim a fine from the applicant and to claim from her the cost of supplying and installing the replacement prepaid meter are reserved.

7. The applicant’s right to oppose any demand or claim by the respondent remains.

GC Wright

Judge of the High Court

Gauteng Division, Johannesburg

HEARD : 25 & 27 June 2024

DELIVERED : 27 June 2024

APPEARANCES :

Applicant Adv Xolisa Hilita

084 975 9908

hilita@counsel.co.za

Instructed by Mamamela Attorneys Inc

010 446 9685

mamatela@mamatelainc.co.za / snene@mamatelainc.co.za

Respondents Adv JMV Malema

082 590 5934

Malema@adv21.co.za

Instructed by Padi Incorperated Attroneys

011 484 0409

sibusiso@padiaatorneys.co.za

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Setlogelo v Setlogelo 1914 AD 221

Case cited

City Power Johannesburg v Grinpal Energy Management Services (Pty) Ltd [2015] ZAGPJHC 265

Case cited

Section 28 of the Constitution

Legislation

Legislation referenced in the available case record.

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