Xhosana v King Sabata Dalinyebo Municipality and Others; In Re: Mpakati v King Sabata Dalinyebo Municipality and Others; In Re: Mehlwempi v King Sabata Dalinyebo Municipality and Others (1477/2013, 1478/2013, 1482/2013) [2014] ZAECMHC 24 (13 March 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, MTHATHA

CASE NO: 1477/2013

Date heard: 11 February 2014

Date Delivered: 13 March 2014

In the matter between

LOYISO XHOSANA

Applicant

And

KING SABATA DALINYEBO MUNICIPALITY First Respondent

THE MUNICIPAL MANAGER,

KING SABATA DALINYEBO MUNICIPALITY Second Respondent

VUYANI MEHLWEMPI Third

Respondent

CASE NO: 1478/2013

NOSIPHO MPHAKATI Applicant

CASE NO: 1482/2013

KHANYIA TSHEMESE

Applicant

JUDGMENT

GOOSEN, J.

[1] These applications concern the lawfulness of disconnecting the supply of electricity to consumers where illegal or unlawful electricity

connections to the supply grid are found to have been made. The occurrence of illegal connections is widespread in the area of the respondent. These illegal connections result in unaccounted for consumption of electricity; the loss of substantial revenue and, most importantly, pose significant public health and safety risks to consumers and members of the public.

[2] Each of these applications concerns the actions taken by officials of the respondent to disconnect the supply of electricity to the premises situated at 847 Xhosana Street, Ngangelizwe, Mthatha (the premises) on 19 June 2013. In each instance, an urgent application was launched on 21 June 2013 and an interim order was granted on 27 June for the restoration of the electricity supply to the premises. The order was granted in the form of a rule nisi that the first and second respondents forthwith restore the electricity meter box and electricity supply to the premises; and that the respondents be interdicted and restrained from any further unlawful interference with the electricity supply to the premises. It was further provided that these orders operate as an interim interdict pending the finalisation of the application for review relief.

[3] The notice of motion reflects that the applicant intends to seek a review, in terms of the Promotion of Administrative Justice Act 3 of 2000 (hereinafter PAJA) of the decision of the first and second respondents to disconnect and discontinue the electricity supply to the premises and to seize the electricity meter box and accordingly to seek an order declaring the disconnection of electricity supply and/or seizure of the electricity meter box from the premises to be unlawful.

[4] The three applications were brought by three individuals who apparently reside in residential flats on the premises. Each application relies upon the same cause of action and concerns the same property. When these matters came before me I directed that the three applications be argued simultaneously. When I asked why three separate applications had been brought relating to the same alleged unlawful conduct and relating to the same premises, I was informed that the attorney acting for the applicants had framed three separate applications and briefed three different counsel to deal with the matters. I shall return to this aspect hereunder when dealing with the question of costs.

[5] The three matters were argued before me as if as it was a review application even although it appears from the papers that no separate

review application as foreshadowed in the notice of motion had been launched. All that had occurred was that the respondent had filed opposing affidavits to deal with the interim relief and thereafter had filed supplementary opposing affidavits dealing with the substantive relief sought by the applicants. Both sets of counsel were however ad idem that, in the light of the significance of the issues raised for the parties, that the matter should be considered and finalised and that appropriate declaratory relief should be granted.

[6] It is common cause that inspectors employed by the first respondent conducted an inspection of the property situated at Xhosana Street on 19 June 2013. During this inspection they found that the prepaid electricity meter box installed on the premises had been tampered with and that there was an illegal diversion of electricity supply, which resulted in electricity being supplied to the property without passing through the meter box. As a result of this a written notice was issued to the owner of the property and left at the premises. The electricity supply was disconnected and the prepaid electricity meter box was removed. It is these actions which resulted in the urgent applications being launched.

[7] It is also common cause that the owner of the property is the third respondent and that the third respondent, who is an employee of the second respondent, apparently consented to the disconnection of the electricity supply to the property and the removal of the meter box. The applicants, it is common cause, are tenants residing on the property. The electricity supply to the property was provided via a prepayment meter installed by the first respondent.

[8] The notice issued to the owner of the property reads as follows:

“Please be advised that KSD municipality inspectors have found that your lights tempered (SIC) without the agreement of the King Sabata Dalinyebo Municipality.

As a result of illegal action your meter has been disconnected from the municipal network forthwith. You are now liable for a fine of R2410.93 (Two Thousand Four Hundred and Ten Rand and Ninety Three Cents), a reconnection fee of R386.86 (Three Hundred and Eighty Rand and Eighty Six Cents) and a Value Added Tax of R352.36 (Three Hundred and Fifty Two Rand and Twenty Six Cents). In addition, the KSD Municipality may impose further penalties based on estimated average consumption for the period that the supply was considered tampered with. The electrical supply will be reconnected on payment of the disconnection fee and any other penalties imposed.

You are therefore advised to contact KSD Municipality Prepaid and Conventional Electricity Solutions Department at Munitata Building to arrange payment of the above fine and reconnection fees totalling R3150.15 (Three Thousand One Hundred and Fifty Rand and Fifteen Cents) and any other penalties.”

[9] The applicants allege that the first respondent’s conduct constitutes administrative action and therefore that the provisions

of section 33 of the Constitution and the Promotion of Administrative Justice Act apply to such conduct. The applicants further allege that the conduct is unlawful in as much as they have not been accorded their right to procedurally fair administrative action in that no notice of intended discontinuation was provided to the applicants. The applicants allege that they were not afforded the opportunity to make reasonable representations to the respondent and that their personal circumstances were not considered. They contend that their right of access to housing was thereby compromised and that the municipal By-Laws do not empower the respondents to disconnect municipal services.

[10] The first and second respondents oppose the application on the basis that the municipality’s Electricity Supply By-Law empowers the first respondent, in circumstances such as the present, to disconnect the supply of electricity to a property where it is established that there has been tampering with the electricity supply or an illegal diversion of electricity. The respondents contend further that their conduct in disconnecting the electricity supply to the premises does not amount to administrative action, but was simply the application of the law. It is therefore contended that there is no basis for the declaratory relief sought and that the application ought to be dismissed.

[11] I did not understand the first and second respondents to argue that the discontinuation of the supply of electricity to a consumer did not fall within the ambit of administrative law. Such a proposition would, in any event be at odds with the judgment of the

Constitutional Court in Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC). In that matter the court found (at par 25) that the supply of electricity or the discontinuation of such supply falls within the “’special cluster of relationships’ that exist between a municipality and its citizens, which is fundamentally cemented by the public responsibilities that a municipality bears in terms of the Constitution and legislation in respect of the persons living in its jurisdiction”. This relationship is governed by administrative law principles.

[12] The first and second respondents based their opposition upon the contention that the Electricity Supply By-Law specifically authorises

the action and that action taken in terms of the By-Law does not constitute administrative action. The conduct involves implementation

of the By-Law. In this regard reliance was placed on City of Cape Town v Hendricks and Another 2012 (6) SA 492 (SCA) where the court found that the issuing of a notice to comply in terms of a by-law did not amount to administrative action. I am not persuaded that Hendriks applies to the present matter. I need not however decide the issue. That is so because the first question to be answered is whether the By-Law indeed authorises the first respondent’s conduct. In the event that it does not the conduct of the first respondent is ultra vires. In the event that the conduct is authorised only then does the question arise as to whether the conduct complied with administrative

law principles applicable to it.

[13] The Electricity Supply By-Law contains the following provisions which are relevant to this matter:

13.1. Clause 11, which deals with the protection of the municipality supply mains provides as follows:

1. No person may, except with the consent of the municipality and subject to such conditions as may be imposed –

(a) ….

(b) ….

(c) ….

(d) make any an authorised connection to any part of the supply mains, or divert cause to be diverted any electricity there from, and any such unauthorised connection diversion must be removed by the municipality and the costs they are of be recovered from the owner or occupier of the premises in which the authorised connection was made or from which electricity was diverted.

5. The municipality may in the case of a power failure, emergency or disaster remove anything damaging, obstructing or endangering or likely to damage, abstract, in danger or destroy any part of the electrical distribution system.

13.2. Clause 12 deals with the prevention of tampering with a service connection or supply mains and provides that:

If the municipality decides that it is necessary or desirable to take special precautions in order to prevent tampering with any portion of the supply mains, service connection or service protective device or meter or metering equipment, the consumer must –

(a) Either supply and install the necessary protection; or

(b) Pay the costs involved with such protection supplied by the municipality.

13.3. Clause 23 deals with faults in the electrical installation and provides as follows:

1. If any fault, which constitutes a hazard to persons, livestock or property, develops in the electrical installation, the consumer must immediately –

(a) disconnect the electricity supply;

(b) give notice thereof to the municipality; and

(c) take steps to remedy the fault.

13.4. Clause 24 deals with the discontinuance of the use of supply and provides as follows:

In the event of a consumer desiring contempt of desiring to discontinue using the electricity supply, he must give at least 44 working days notice in writing of such intended discontinuance to the municipality, failing which she remains liable for payments due in terms of the tariff for the supply of electricity until the expiration of to 4 working days after such notice has been given.

13.5. A “prepayment meter” is defined in the By-Law to mean “a meter that can be programmed to allow the flow of pre-purchased amounts of energy in an electrical circuit”.

[14] It is immediately apparent from the provisions of the By-Law set out hereinabove that it does not specifically and in terms authorise the municipality to discontinue the supply of electricity to premises where an unauthorised connection is made to the electricity supply mains. Clause 11(d) only authorises the removal of the unauthorised connection or diversion and entitles the municipality to recover the costs associated with such removal.

[15] It was argued on behalf of the first and second respondents that the By-Law must be purposively interpreted in order to determine the ambit of the authority vested in officials of the respondent. On this basis it was submitted that the By-Law does not contemplate the consumption of electricity without payment for such energy. Accordingly, so it was argued, in circumstances where there is an authorised connection the By-law must be interpreted to entitle discontinuance of that supply.

[16] In interpreting the By-Law it must be considered as a whole and effect must be given to the plain meaning of the language employed. The clear language of the By-Law does not authorise discontinuation of the electricity supply. It permits only the removal of such unauthorised connection or diversion and the recovery of those costs from the relevant consumer or owner of the premises. There is nothing in the terms of the By-Law, construed as whole, to suggest that the removal of an unauthorised connection encompasses the disconnection of supply. To the contrary, where the By-Law specifically deals with discontinuation of supply no provision is made for discontinuation on the basis of the existence of an unlawful connection or diversion. There is also nothing to suggest, and the first respondent did not contend, that the removal of a diversion where the supply is via a prepayment meter, is impossible without discontinuation of the supply. The fact that the first respondent was able to restore the supply to the premises in compliance with the interim order in any event demonstrates decisively that this is not so.

[17] In my view it is appropriate to construe the powers conferred by the By-Law strictly. Such construction is consistent with the Constitutional and statutory obligations imposed upon municipalities to deliver municipal services including electricity (see Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bisset and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng and Others (KwaZulu-Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC); Joseph and Others v City of Johannesburg and Others (supra)).

[18] Had the municipality intended to confer upon its officials the power to discontinue the supply of electricity in circumstances where there is an un-authorised connection or a diversion then the municipality no doubt would have specifically legislated to that effect by making provision for such power. In seeking to argue that the By-Law should be interpreted to allow for discontinuation of the supply of electricity counsel for the respondent referred to the by-laws of a number of other municipalities where such provision had been made. None of those by-laws are of any relevance to the present matter except insofar as it is apparent from the bylaws referred to, that where the power to disconnect a supply is provided for it is so provided for in clear and unequivocal terms. That is not the case in By-Law which applies in this matter.

[19] In the light of my finding that the By-Law does not authorise the disconnection of the supply of electricity in circumstances where an unauthorised connection or diversion is found, it follows that the conduct of the respondents in so doing on 19 June 2013 was unlawful and ultra vires the Electricity Supply By-Law. In the circumstances the applicants are entitled to the declaratory relief that they seek in this matter and, by reason of their success in the application are entitled to the costs.

[20] Insofar as the costs of the application are concerned, it is my view that the launching of three separate applications on behalf of three applicants in which identical relief was sought was entirely unwarranted. The applicants were all represented by the same

attorney. There is in my view no reason why a single application could not have been brought in which the three applicants were cited as co-applicants. The conduct of litigation in respect of separate applications has undoubtedly resulted in an unnecessary duplication of costs. In my view the respondent ought not to be penalised in the payment of such unnecessarily escalated costs. The respondent is after all an organ of state and will be required to pay the costs associated with this litigation out of public funds. For this reason I consider that it is necessary to limit the costs awarded in each of the three cases to one-third of the taxed costs thereby ensuring that the public purse is not burdened anymore than it would otherwise have been had the matter been dealt by way of a single application.

[21] In the result I make the following order:

(a) It is declared that the discontinuation of electricity supply to the premises situated at 847 Xhosana Street, Ngangaliwe Location, Mthatha by the first respondent on 19 June 2013 is unlawful and ultra vires the first respondent’s Electricity Supply By-Law;

(b) The first respondent is ordered to pay one-third of the taxed costs of each of the applications under case numbers 1477/13, 1478/13 and 1482/13.

___________________________

G. GOOSEN

JUDGE OF THE HIGH COURT

APPEARANCES: FOR THE APPLICANT

CASE NO: 1477/13

Mr. M. Mhambi

Instructed by Mlindazwe & Associates

CASE NO: 1478/13

CASE NO: 1482/13

Mr. Z. Nabela

FOR THE RESPONDENTS

In all three cases

Mr. V. Kunju

Instructed by Booi & Sons Attorneys