MUNICIPALITY

Issue: The judgment elucidates the abuse of power resulting from robust yet unprincipled debt collection practices by the City of Johannesburg (CoJ). The administration of the CoJ exhibits "intrinsic dysfunctionality" in this category of dispute. The cases considered in the judgment reveal the continued corrosive impact of unchecked power on the CoJ’s debt collection practices. Additionally, it underscores how a specific group of lawyers, frequently retained by the CoJ, persistently pursue unmeritorious arguments, undeterred by the facts of the individual cases. This culminates in unnecessary High Court litigation for those few who can afford to seek relief, while many less fortunate customers no doubt remain at the mercy of an indifferent officialdom. Consequently, severe financial burdens and hardships are imposed on customers and ratepayers. The judgment confronts the grave and far-reaching consequences of continued abuse of power with unflinching resolve.

Application: Three urgent applications were enrolled for hearing on the urgent motion court roll. These applications arise from the disconnection of customers’ utilities by the City of Johannesburg (CoJ) and City Power (CP), the latter being a wholly owned municipal entity of the CoJ.

Erf 7 matter: Ms Lawrence explains that she is the administrator of the applicant which is the registered owner of the property. The need for the urgent application arose when a representative visited the property and shut off, or attempted to shut off, the water supplies due to alleged unpaid electricity accounts dating back to over a decade ago. There has been a longstanding dispute with the respondents dating back to approximately 2010–2012, when the CoJ allegedly issued excessive electricity accounts to the applicant. The applicant continues to make payment of the CoJ’s monthly charges on the due date. According to the deponent, all current accounts are being settled timeously and without deduction. The deponent states that two agents of the CoJ inspected the property’s electricity meters and declared them faulty and in need of replacement or recalibration. Although the meters were eventually removed, neither the CoJ nor City Power provided any feedback regarding the steps taken to resolve the issue.

Ordicode matter: It is alleged that incorrect charges were levied in respect of electricity consumption at the property during 2019–2021. Two meters are installed there namely a domestic meter and a commercial meter. In respect of the commercial meter, the CoJ is alleged in the main application to have conceded an overcharge of R3,816,226.80 in its own investigation report. That amount was indeed credited, but the CoJ failed (says the applicant) to reverse the associated interest and penalties. The domestic meter was also faulty, says the applicant, and reprogrammed in December 2020. Despite referral to the CoJ and CP for recalculation and rectification, there has been no report or recalculation. In addition, the applicant alleges that it was charged R469,415.27 for electricity alone for the periods September 2020 to June 2023. All these problems cause applicant to receive what are described as “astronomical accounts for electricity consumption which is non-sensical and convolute.”  At various stages, the overcharged amount (allegedly) varied around the R8m mark, reaching almost R9m in the month of October 2022. The CoJ failed to present any admissible evidence of the underlying facts to counter the applicant’s version.

Hyde Park matter: The applicant conducts business as Shell, Hyde Park. The founding affidavit recounts billing disputes between the applicant and the respondents dating back to 2016. The CoJ issued an invoice starting with a zero balance on the account, and then proceeded to bill an amount of R6,117,237.21. The applicant procured the services of an independent external energy consultant, who installed meters on the applicant’s premises to monitor actual usage. It was determined that the applicant’s actual monthly usage amounts to approximately R40,000, which, according to the applicant, confirms that a genuine dispute exists between the parties regarding the alleged overbilling. The CoJ issued a pre-termination notice. This prompted an urgent application by the applicant, resulting in an order being granted in favour of the applicant interdicting the respondent. The applicant states that the CoJ has, to date, failed to comply with the order. Contempt of the order has been established on a balance of probabilities. The CoJ failed to provide any evidence to create a reasonable doubt regarding whether its non-compliance with the order was wilful and mala fide.

Findings: It is alarming that, despite the two judgments and at least three other decisions of the court, which contained explicit warnings against repeating the same unacceptable conduct, directed to be brought to the attention of the Mayor, the City Manager, the Head of Revenue Collection, and the Chief Legal Advisor, the grave concerns expressed by the Deputy Judge President appear to have been disregarded. This attitude demonstrates a troubling indifference to accountability and oversight, coupled with a marked disregard for the authority of the court. The City of Johannesburg’s answering affidavits in all three matters fail to comply with the basic requirements.

Order: In Erf 7, the respondents are interdicted from disconnecting the electricity and/or water supply to the property based on the disputed arrears, pending the final determination of the rights of the parties and outcome of the litigation. In Ordicode, the respondents are interdicted and restrained from terminating the electricity supply to applicant’s property without a court order pending the resolution of the disputes of the main application. In Hyde Park, the City of Johannesburg is found to be in contempt of paragraph 2 of the order made previously.

BADENHORST AJ

Facts and issue: The City Council adopted a resolution endorsing a VIP protection policy. The VIP protection policy reduced the number of officers available to the Executive Mayor from ten to eight. However, the policy still entrenched the provision of far more generous personal protection services to senior municipal councillors than the Remuneration of Public Office Bearers Act 20 of 1998 and the ministerial determinations permit. The City Council has not obtained a threat assessment or other report from SAPS that might have justified any of these departures from the ministerial determinations. The DA seeks to declare the resolution unconstitutional and invalid, and to set aside the personal protection allowances that it formalised.

Discussion: The City Council might have thought that it could obtain a threat assessment after passing and implementing the resolution. If the City Council did think that, then it fell into error. Both the Minister’s determinations and the Act require a threat assessment to be conducted before an expansion of security provision beyond the default limits set in the determinations can be implemented. Both the Act and the determinations are designed to prevent the creation of armies of security guards surrounding public office bearers, insulating them from the people they are appointed or elected to serve. The value of public accountability is enshrined in section 1 (d) of the Constitution. It is a basic requirement of accountability that public office bearers should be reasonably accessible. They are not entitled to exist in a security bubble, abstracted from the day-to-day concerns of the general public. That principle is subject to qualification if there is a genuine threat to the safety of a particular public office bearer or class of public office bearers. The Act and the ministerial determinations recognise this.

Findings: The resolution is wholly inconsistent with the Remuneration Act and the ministerial determinations made under it. For the same reasons, the pre-existing decisions to expand various municipal councillors’ personal protection allowances beyond the provision made in the ministerial determinations, without having obtained a SAPS threat assessment justifying such an expansion, are likewise unlawful. Mr. Mphaga, who appeared for the City, did not seek to argue otherwise. Nor could he argue that the Act and the determinations are inapplicable to the resolution, to the VIP protection policy or to the allowances that they formalised. The resolution is accordingly invalid and must be declared so. The City’s VIP protection policy and the allowances it formalised must also be set aside.

Order: The second respondent’s resolution to adopt and approve the “Protection and Security for VIP Risk Management System Policy” is declared unconstitutional and invalid and is set aside. The first respondent’s prior decision to provide personal protection allowances to municipal councillors of the second respondent is declared unconstitutional and invalid and is set aside.

Facts: Sonae specialises in the  manufacturing of wood-based panels for the furniture and construction industries. It is one of the municipality’s largest users of electricity and a major contributor to the local  economy. Apart from spending about R100 million per annum on electricity, it employs 250 workers who live in the vicinity of the factory, with related spending of about R120 million in the municipality’s area of jurisdiction. It also spends some R70 million on local contractors and purchases approximately R110 million worth of timber from local producers. Sonae asserts that the equipment operates at exceptionally high temperatures and is sensitive to electricity supply interruptions. Such power interruptions, including those  implemented during loadshedding, create “a real and substantial fire risk” with resultant health and safety risks for employees, contractors, suppliers and the public. Sonae does not have an alternative electricity supply since a generation plant would cost at least R600 million and would take some 12 to 18 months to install.

Appeal: The appellants, Eskom Holdings and the Mbombela Municipality, appeal against the judgment and order of the High Court delivered in 2023. The High Court interdicted and restrained Eskom and the municipality from implementing loadshedding in the area of the grid where the factory of Sonae Arauco is located.

Discussion: Sonae contended that the municipality breached a curtailment agreement where Sonae undertook to reduce its electricity usage to 70% of its normal consumption and the municipality would refrain from implementing loadshedding in the area of the grid where Sonae’s factory is located. It appeared that when it had become clear that the municipality could not properly implement loadshedding itself, Eskom assumed responsibility for loadshedding in the entire area of the municipality’s jurisdiction. Because Eskom can only implement loadshedding at substation level, it therefore had to shed all the end-users serviced by, among others, the Rockysdrift substation, including Sonae’s factory. Eskom asserted that Sonae’s constitutional right to uninterrupted supply of electricity is not absolute but is subject to the law. In this regard the 2019 Code places an obligation on it to protect the national grid by implementing loadshedding in a municipality when that municipality fails to do so or lacks the capacity to implement loadshedding properly. The Code of Practice (the 2019 Code) was published by the National Energy Regulator (NERSA) in terms of the Electricity Regulation Act 4 of 2006.

Findings: Eskom was not a party to the curtailment agreement and was accordingly not bound by any arrangements between the municipality and Sonae. In these circumstances, the Code obligated Eskom to assume responsibility for the implementation of loadshedding at the Rockysdrift substation. The High Court accepted that Eskom implemented loadshedding at the Rockysdrift substation “because the municipality did not comply with its obligations to shed the required load at that substation”. The High Court order, in effect, restrains Eskom, as the “ultimate authority”, from discharging its obligations under the Code to protect the integrity of the grid when it is at risk. The Code provide the protocol for the scheduled and equitable interruption of power supply to prevent the catastrophe of grid collapse from happening. Furthermore, the facts put up by Sonae in support of its assertion that it would have suffered irreparable harm if loadshedding were not interdicted, such as regarding the fire risk, were insubstantial and tenuous.

Order: The appeal is upheld and the order of the High Court is set aside and replaced with an order dismissing the application for interim relief in terms of Part A of the notice of motion.

SMITH JA (MBATHA JA, WEINER JA, MOLOPA-SETHOSA AJA and KOEN AJA concurring)

Facts and issue: The applicant, Delville, seeks declaratory relief to address the unlawful termination of electricity supply to their property. Additionally, the applicant seeks interdictory relief to prohibit the City from holding them liable for outstanding debts incurred by former tenants who have since vacated the property. The applicant further seeks an interdict to prevent the City from terminating the electricity supply based on disputed liabilities.

Discussion: This case hinges on the application of the MSA, specifically regarding whether a property owner can be held responsible for arrears incurred by tenants with separate consumer agreements. Following the installation of the bulk meter, one would expect that the City’s invoicing for consumption would be accurate. Unfortunately, this has not been the case. The applicant continued to receive invoices reflecting the removed historic meters well after the bulk meter was installed, as evidenced by the City’s invoices. The situation was further complicated when the applicant received invoices in August 2022 that reflected both the historic meters and the bulk meter, despite the bulk meter having already been installed. The City continued to issue invoices for consumption on the Aros account even after the bulk meter’s installation. Aros was invoiced in May 2022 for the removed Aros meter. The respondents’ assertion that the applicant is liable for the arrears of the defaulting tenants’ accounts seems to contradict the established principle that liability for utility charges lies with the consumer under their individual agreements with the City. The City’s attempts to impute the defaulting tenants’ debts to the applicant lack clear legal or contractual grounds.

Findings: The applicant has consistently raised valid concerns regarding the City’s actions, including erroneous billing and the imputation of the defaulting tenants’ debts. The City’s failure to address these concerns adequately, combined with its reliance on incorrect billing practices, further strengthens the argument that a legitimate dispute exists. The City cannot terminate services or threaten termination while the disputes remain unresolved. The City initiated the rebatement process on its own, which raises significant procedural concerns. By unilaterally initiating this process, the City deviated from the required procedure, making the process legally defective. The applicant is entitled to declaratory relief. The City is not permitted to impute the defaulting tenants’ arrears to the applicant without proper consideration of legal aspects relating to contractual obligations by all concerned, proper investigations and in-depth consultation with all concerned.

Order: It is declared that the first respondent’s termination of electricity supply to the whole of the applicant’s property, was unlawful.

Facts and issue: This is a dispute about the applicant’s municipal account and the right of the respondent to disconnect the water supply to the applicant’s premises. Central to the subject matter in these proceedings is a settlement agreement that was allegedly entered into between the parties in terms of which the outstanding amount indebted to the municipality was settled in an amount of R8,555,790.20. The applicants seek an order directing the municipality to pass the requisite journals to reflect the settlement agreement entered by the parties and, pending the passing of the said journals, interdicting them from disconnecting the water.

Discussion: The facts leading up to the conclusion of the settlement agreement are not disputed. In rebuttal of the relief sought by the applicants, the municipality raised two issues: Firstly, Rasoesoe lacked the necessary authority to conclude the agreement between the second applicant and the municipality and did not comply with ‘the internal processes’ in concluding the settlement agreement. As a result, so it is argued, the settlement agreement was void. Secondly, the settlement agreement was not made an order of court at the time of concluding the alleged unlawful agreement and as a result there is no lis pending between the parties. The municipality’s lack of authority defence is misconstrued for the following reasons. Bruyns first received correspondence from the municipality’s Interest Referral Committee on 13 December 2022 in which it was conveyed that the proposed settlement agreement for payment was accepted in full and final settlement of the outstanding amount as of 5 December 2022. It is not challenged by the municipality that the applicants had complied with the terms of the settlement agreement.

Findings: The failure by a statutory body to comply with provisions which the Legislature has prescribed for the validity of a specified transaction falls within the first category described above and cannot be remedied by estoppel because that would give rise to a transaction that is unlawful and therefore ultra vires. This is, however, to be distinguished from the failure by a statutory body to adhere to all the relevant internal arrangements and formalities, which falls within the second category described above and in respect of which estoppel may be successfully invoked. The process followed by the Interest Reversal Committee falls within the second category and consequently, and even if there was non-compliance with any of the internal arrangements and formalities, the municipality is estopped from invoking such non-compliance. The agreement between the applicants and the municipality was lawfully entered agreement and should be enforced. As far as the no lis defence is concerned, there is no merit in the municipality’s argument.

Order: The first respondent is directed to pass the requisite journals to reflect the settlement agreement entered by the parties within 10 days from date of the order and, pending the passing of the said journals, interdicted from disconnecting the water to the premises.

Facts: At its core, the case concerns the management of a municipal service account for a residential property, allegations of billing irregularities, and the respondent's decision to disconnect services due to non-payment. The dispute has unfolded against a backdrop of contested charges, allegations of administrative failures, and disagreements over legal entitlements to payment and service provision. The applicants assert that the municipal account for the property, registered in the name of the deceased, has been improperly managed by the respondent. They contend that the account was erroneously opened in the deceased’s name and that the respondent continued billing on this account following his death in 2021 without rectifying the associated errors. These errors include allegations of overbilling, reliance on faulty or removed meters, and the continued accrual of charges for services that were either disputed or allegedly not rendered. The applicants claim that these issues were raised with the respondent as far back as 2014, but despite repeated efforts to resolve the disputes, the errors remain unaddressed.

Application: What the applicants seek is an order directing the respondent to open an account in the name of the first applicant and to transfer all charges from the account which was held in the name of the first applicant’s late husband to the first applicant’s newly established account. What the applicant then seeks is an order directing the respondent to write off any amounts which are demonstrated to have become extinguished through prescription as at the date of the notice of motion. The respondent has not suggested, in respect of these charges, that the running of prescription was interrupted through the issue of a summons, an acknowledgement of debt, or on any other basis. It does, however, dispute that the debts have prescribed.

Discussion: Despite nearly a decade of attempts by the applicants to resolve the persistent inaccuracies in their municipal account, the respondent has continued to issue erroneous bills. The applicants have repeatedly identified these flaws, yet the respondent has failed to rectify them, necessitating this application. It is evident from the constitutional and statutory framework that the applicants possess a clear right to municipal services, which are provided reciprocally against reasonable and lawful payment. This includes the respondent’s duty to investigate and respond to any legitimate queries raised by the applicants, as well as to bill them accurately and transparently. The respondent is only entitled to recover amounts that are lawfully due for actual consumption, and not for estimated or fictitious charges based on data from removed or faulty meters. Accurate billing, underpinned by proper metering systems, is fundamental to the respondent’s obligations. The applicants first raised a formal dispute regarding the inaccuracies in their municipal account in December 2014. From this point onwards, section 102(2) of the Municipal Systems Act 32 of 2000 became operative, prohibiting the respondent from allocating payments to the disputed charges. Despite this statutory safeguard, the respondent has failed to address the dispute adequately, perpetuating the billing inaccuracies and acting contrary to its obligations.

Findings: The respondent attributed an extraordinarily high consumption of 186,370 kWh to a single month. This figure is implausible for residential use. Instead of distributing this anomalously high figure over the 37-month billing period to establish a reasonable average, the respondent concentrated the entire amount in one month. This bloated reading elevated the account into the highest tariff bracket for that month, thereby inflating the charges even further. The improbability of the respondent's calculations is underscored by its own data. The discrepancy is mathematically indefensible. The applicants have satisfied all the requirements outlined for raising a valid dispute under section 102 of the Municipal Systems Act. Accordingly, a legitimate and ongoing dispute exists concerning the municipal account. While the applicants may raise a dispute and allege inaccuracies, the respondent bears the burden of proving the accuracy of its invoices. The rectification of the municipal account involves far more than a simple recalculation of a debt. The responsibility for this rectification rests with the respondent, as the applicants lack access to the full range of information necessary to verify the account. The respondent’s rebilling has produced an account that requires rectification not only through proof of various adjustments but also through a holistic reassessment of the inaccuracies. This is not a simple mathematical exercise, nor can the respondent rely on prescription to escape its obligation to correct these errors.

Order: The respondent is directed to open an account in the name of the first applicant, in respect of the property, and the applicants and the respondent are directed to co-operate with one another to facilitate the opening of such account. All debits and credits in respect of charges levied by the respondent in relation to the property from 5 May 2021 to date are to be transferred to such new account. The respondent is directed to rectify the municipal accounts in relation to the property by ensuring that the amounts which became due on or before 4 May 2018 are no longer owing.

MAHON AJ

Facts: An order was handed down which declared invalid a resolution of the City Council. Under that resolution, the City Council appointed Mr Brink to the post of City Manager of the City of Johannesburg Metropolitan Municipality. The order also declared another resolution invalid. The resolution reversed the City Council’s previous resolution to re-advertise the post of City Manager. The City Council took the resolution because it had reached the conclusion that a previous effort to recruit a City Manager had not produced an appointable candidate. The nett effect of the order was to reverse Mr Brink’s appointment. Realising this, the court declared that, notwithstanding the fact that Mr Brink had been unlawfully appointed, his official decisions and acts would not be rendered invalid merely because of the unlawfulness of his appointment. The order also suspended the declarations of invalidity for ten days in order to allow for the appointment of an Acting City Manager. This case is about what the City Council did to comply with that order. Instead of causing Mr Brink to vacate his office, and appointing an Acting City Manager, the City Council purported to comply with the order by passing another resolution. That resolution was adopted. Its effect was, in substance, to re-adopt the resolutions that the order had declared unlawful. In consequence, Mr Brink did not vacate his office. An Acting City Manager was not appointed, and things carried on more or less as if the order had never been given.

Application: The applicant, the DA, now impugns the lawfulness of that outcome and the process the City Council adopted to reach it. The DA seeks to review and set aside the resolution. The DA’s case is, first, that the outcome breached the terms of the order itself. The DA contends that the order created a vacancy in the office of the City Manager. That meant that Mr Brink had to leave his post, that an Acting City Manager had to be appointed, and that the permanent vacancy had to be readvertised, as was required by the City Council’s own resolution. Secondly, the DA contends that the manner in which the City Council went about readopting the resolutions the order had declared unlawful was itself procedurally flawed. It did not comply with the City Council’s own standing rules.

Discussion: The report laid before the City Council was mistaken. What the judgment identified was not just a technical defect in the procedure the Council adopted, but an inappropriate haste to adopt the resolutions in circumstances where lengthier consideration was necessary, using the ordinary notice periods and procedures provided for in the standing rules. The meaning of the order is clear. The City Council was sent back to the drawing board. Mr Brink’s appointment was reversed. The decision to readvertise the post of City Manager was revived. Mr Brink would have to vacate his permanent appointment as City Manager, and an Acting City Manager would have to be appointed to replace Mr Brink while the Council considered what to do next. It was, in other words, not open to the City Council to readopt the resolutions with the same haste that undercut their validity in the first place. One of the purposes of Rule 94(1) is to give councillors adequate notice of motions that have been proposed and submitted to the Secretary of Council. Rule 94(1) was binding on the City Council, and the admitted non-compliance with it is fatal to the validity of the resolution.

Findings: The City adopted and then acted under an erroneous construction of the order. The process the City adopted was sloppy and self-serving. To commit Ms Arnolds and Mr Gwamanda for contempt, the court must be satisfied that the only reasonable inference from the proven facts is that they wilfully and in bad faith sought to transgress what they knew to be the clear strictures of the order. The facts do not bear this out. The City, Ms Arnolds and Mr Gwamanda had clearly been advised that the consequences of the order were purely procedural, and that the order could be complied with by merely readopting the resolutions without engaging Rule 64. There is nothing to suggest that this advice was itself contrived to subvert the order. In addition, the advice, though clearly wrong, was not so poor as to constitute a bad faith effort to breach the terms of the order. Nor was it suggested that Mr Gwamanda or Ms Arnolds had the specialist legal knowledge necessary to second-guess this advice. The DA’s application to hold the City in contempt, and to commit Ms Arnolds and Mr Gwamanda to prison is refused, on the basis that they did not wilfully, and mala fide violate the terms of the order. The appropriate remedy at this stage of the proceedings is to declare the resolution invalid, and to allow the City Council to consider its position.

Order: The decisions of the Council are declared unconstitutional, unlawful and invalid, and are set aside. Mr Brink is directed to relinquish his permanent appointment as the City Manager within ten days of the date of the order, or as soon as an Acting City Manager is appointed, whichever occurs first.

WILSON J

Facts and issue: This is an urgent interdict in which the applicants seek to prevent the respondents from disconnecting the electricity supply to the premises of the applicants, pending the finalisation of the disputes lodged by the applicants. Alternatively, the applicants seek that the respondents be interdicted from disconnecting the electricity supply to the premises of the applicants without first furnishing them with the written notice, written reasons and allowing them to make representations.

Discussion: The applicants have demonstrated clear and undisputed facts that established that they have prima facie right and the legal basis as such. Until NERSA determines the lawful tariff in which the applicants are to be charged, the respondents cannot disconnect electricity from the applicants. Doing so will be infringing the applicants’ rights not to have their municipal services and electricity supply terminated by virtue of the 2019/2020 invalid tariffs, section 102 disputes and the undertakings of the respondents during the exchange of the letters between the parties. The applicants submit that the termination of municipal services and the disconnection of the supply of electricity will cause a catastrophic and irreparable harm as they rely on an uninterrupted supply of electricity for their manufacturing process. On the contrary the respondents will not suffer any harm because the applicants are paying and have tendered to pay according to a tariff which they have calculated approximates the lawful tariff.

Findings: The applicants submit that they do not have an alternative remedy as they have attempted to resolve the matter extra judicially between themselves and the respondents without success. The applicants submit that in the first interim application, the applicants were unsuccessful on the basis that the tariffs were still lawful until set aside, however in the review application the applicants ultimately succeeded, and the impugned tariffs were reviewed and set aside. Currently, the application before the court has prospectus of success. The fourth, fifth applications and current applications were triggered by the unlawful disconnection of the supply of electricity and municipal services. Those applications did not proceed due to an undertaking by the respondents to restore the services to the applicants. The said disconnections by the respondents were unlawful administrative acts because of the judgement which is still unresolved. The applicants have satisfied requirements for an interdict.

Order: The respondents are interdicted from disconnecting the electricity supply to the premises of the second to fifth applicants pending the finalisation of the disputes lodged by those applicants pertaining to the financial years regardless of when and in which financial year the disputes finally resolved.

Facts: Port St Johns is a rural, tourist town nestled in the Wild Coast, Eastern Cape. The Caguba Community Property Association acquired land in this picturesque coastal strip of land. The Regional Land Claims Commission, the Port St Johns Municipality and the Caguba Community entered into a written settlement agreement which transferred a portion of land to various stakeholders. The Caguba Community benefitted from this award. The land on which Mr Fono commenced with the construction of a tourist facility belongs to that community. Mr Fono commenced building operations without any approved building plans. A municipal official, Ms Zide, and other municipal functionaries visited the property and established that a building was being erected without the approved building plans. She thereafter issued Mr Fono with a letter informing him that he was in breach of municipal town planning and building by laws, the provisions of the National Building Regulations and Building Standards Act 103 of 1977 and the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). She consequently demanded that he cease building operations immediately. Although Mr Fono had undertaken to comply with the demand, she subsequently discovered that he had nevertheless proceeded with the construction. The municipality was accordingly forced to launch an urgent application in the High Court for appropriate relief.

Appeal: This is an appeal against the whole judgment and order of the full court. The full court, sitting as a court of appeal, upheld the appeal against the whole judgment and order of the High Court, sitting as a court of first instance, and declared unlawful and set aside the conduct of the appellant, Mr Fono, in constructing a building without approved building plans, and ordered him to demolish the building. The appellants appeal against that order with the special leave of the Supreme Court of Appeal.

Discussion: In upholding the municipality’s appeal, the full court concluded that the court of first instance made two fundamental errors in dismissing the municipality’s application for an interdict. First, in finding that the Building Standards Act did not apply to the property, and second, in finding that Mr Fono did not contravene the provisions of the SPLUMA. In essence, in upholding the appeal, the full court equated the impermissible differentiation caused by the Land Affairs General Amendment Act 61 of 1998 to the consequences which would result from a finding that the Building Standards Act does not apply in the territory of the former Transkei. In addition, the full court reasoned that the finding of the court of first instance renders the Rationalisation Act unconstitutional, in that it results in the Building Standards Act discriminating against persons who reside in areas such as the former Transkei, by denying them the protection and the benefits ordinarily afforded by the Building Standards Act. It consequently found that the Building Standards Act applies to the property even though it is within the territory of the former Transkei.

Findings: There are fundamental problems with the manner in which the full court dealt with the issue of the applicability of the Building Standards Act in the area where the property is situated. The full court’s reliance on the Lester case was misplaced. The property in that case was not situated in the former Ciskei homeland, as the court erroneously assumed, but in Kenton-On-Sea, a town situated in South Africa. It was therefore common cause that the Building Standards Act applied to that property. The judgment also only concerned the issue of the peremptory wording of section 21 of the Building Standards Act in respect of demolition orders. The full court erroneously assumed that the municipality had promulgated by-laws which regulate building plans and constructions. It consequently interdicted Mr Fono from proceeding with the construction of the building, until such time as he had complied with the applicable municipal by laws and regulations. In the absence of municipal by-laws, it is obviously not possible for Mr Fono to comply with the order. Mr Fono’s assertion that the building is structurally sound and does not pose any safety risks can be verified by the municipality. It is therefore only fair that Mr Fono must be afforded an opportunity to remedy the breach.

Order: The appeal is upheld in part. The order of the court of first instance is set aside and replaced. (See para [2] of order).

MANTAME AJA (MOCUMIE JA, MABINDLA-BOQWANA JÁ, SMITH JA and MJALI AJA concurring)

Facts and issue: The applicant is a registered owner of the premises which is currently leased. The applicant did not immediately open an account with the respondents which led to an adjustment being done on his account during. There is a contractual agreement between the applicant and the respondents in respect of services to the premises. The applicant’s account is in arrears to the sum of R131,038,56. The respondents disconnected electricity supply to the applicant’s premises which caused the applicant to launch an urgent application declaring the disconnection unlawful and directing the respondents to reconnect the electricity supply to the premises.

Discussion: The contention is that the applicant has a constitutional right to access to electricity which is being infringed by the respondents. A concession is made that the respondent has a right to disconnect the supply of electricity for unpaid rates and services only as governed by section 21 of the Standard Electricity Supply By-laws. The contention that counsel for the applicant makes is that because this matter involves the supply of electricity it is inherently urgent and warrants it to be heard as a matter of urgency. The applicant’s averments on why he claims that the matter is urgent is with respect unconvincing. The applicant’s averment that he has a contractual obligation to his tenants is not a sufficient reason to render the matter urgent. The contention that the amounts that the applicant owes is not for determination therefore immaterial is not correct. The arrears on the account is interlinked to the matter. If his account had not been overdue, then there would have been no legal basis for the Respondent to disconnect his electricity. To now cite his contractual obligations to his tenants does not constitute urgency as envisaged by Rule 6 (12).

Findings: The applicant avers that he has a right to the supply of electricity. Accepting for a moment that he has such a right, it is conditional to the payment for the services rendered by the respondents. On the facts, the applicant’s account with the respondents is in arrears. The fact that the account has fallen into arrears provides the respondents with the legal recourse to embark on credit control. The fact that there is provision in the By-laws for a consumer to make payment arrangement with the respondents means that there is a constitutional duty on the respondents to consider any payment proposals in a fair and reasonable manner to assist the consumer to settle overdue accounts. It is on this basis that the court is not persuaded that the averment of lack of subsequent redress is correct. The applicant has failed to prove urgency as he failed the test that he cannot be afforded substantial redress at a hearing in due course. He has substantial redress in terms of section 5.4 of the Credit Control By-laws as well as any other relief available in law.

Order: The application is struck from the roll for lack of urgency.

Facts: The applicants are Govan Mbeki Local Municipality (Govan Mbeki) and Emalahleni Local Municipality (Emalahleni). They are both municipalities in Mpumalanga which have adopted municipal planning by-laws containing transfer embargoes that are intended to enforce compliance with municipal planning requirements. The respondents are Glencore Operations, Duiker Mining, Tavistock Collieries, Umcebo Properties and Izimbiwa Coal. Except for Umcebo Properties, which is a property holding company, the other four are mining companies. All of the respondents intend to transfer immovable properties in the jurisdictional areas of the applicants. The Govan Mbeki and Emalahleni by-laws are intended to operate within the framework of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). Many of the chapters of the by-laws have introductory provisions that show that they are expressly designed to give effect to the framework provisions enacted in SPLUMA.

Appeal: The High Court and the Supreme Court of Appeal (SCA) declared the transfer embargo provisions of the municipalities’ by-laws to be inconsistent with the Constitution and invalid. At the SCA the property owners had cross-appealed against the two provisions of the High Court order that qualified the orders of invalidity. The applicant municipalities now appeal to this court against the decision of the SCA. The property owners seek leave to cross-appeal against the failure of the SCA to remove the qualification in the High Court orders that limited the orders of invalidity.

Discussion: The property owners’ constitutional challenge targets section 76 of the Govan Mbeki By-Law and section 86 of the Emalahleni By-Law. These impugned provisions deal with all property transfers and are not confined to original transfers out of new development schemes and sub-divisions of properties. Section 76 of the Govan Mbeki By-Law and section 86 of the Emalahleni By Law seek to use transfer embargoes to enforce compliance with municipal planning, land use and building regulation requirements. They do so by requiring all property owners who want to apply to the Registrar for a transfer of their land first to obtain a certificate from the municipality (a planning certificate). The property owners argue that the impugned by-laws constitute an extensive and arbitrary deprivation of property under section 25 of the Constitution. They also contend that the impugned by-laws are unlawful as they go beyond the constitutional competence over “municipal planning” or “building regulations”. They contend that the transfer embargo deals with land registration matters, not municipal planning or building regulation matters, that the impugned by-laws are not necessary or incidental to those local government competences within the meaning of section 156(5) of the Constitution (powers and functions of municipalities) and fall beyond the enabling authority of section 32(1) of SPLUMA.

Findings: There is no scope for additional incidental legislative powers to be conferred on municipalities directly by section 156(5) of the Constitution. That reads: “A municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions.” The embargoes purport to apply to all transfers of property after such original registrations. In so doing, they purport to regulate deeds registration and transfer in a manner that goes beyond not only section 53 of SPLUMA but also section 118 of the Local Government: Municipal Systems Act 32 of 2000. Embargoes that encroach in this way on the national competence over land transfer and deeds registration are not obviously contemplated by SPLUMA. There is no constitutional or legislative source for the power of the municipalities to make by-laws imposing transfer embargoes as enforcement mechanisms for their town planning schemes and building approval matters. The impugned by-laws are inconsistent with the Constitution, unlawful and invalid.

Order: The appeal against the order of the SCA is dismissed. The cross-appeal against the order of the SCA is upheld and the order is varied by the substitution of para 3 of the order such that: section 76 of the Govan Mbeki Spatial Planning and Land Use Management By Law 2016 is declared to be inconsistent with the Constitution and invalid. Section 86 of the Emalahleni Municipal By Law on Spatial Planning and Land Use Management 2016 is declared to be inconsistent with the Constitution and invalid.

CHASKALSON AJ (majority) at [1]-[98]

DODSON AJ (dissenting) at [99]-[288]

ROGERS J (dissenting) at [289]-[305]

Facts and issue: Application by the Democratic Alliance (DA) and Councillor De Bruyn, seeking urgent declaratory relief regarding two decisions made by the Council of Theewaterskloof Local Municipality. These decisions were taken during a special council meeting. The decisions involve the removal of Councillor De Bruyn from his position as Executive Mayor of the Municipality and the election of Zimmerman as the new Executive Mayor. The applicants seek an order that these decisions (impugned decisions) be declared unconstitutional, unlawful and invalid and that they be reviewed and set aside.

Discussion: The applicants contend that the special council meeting was unlawfully convened. Consistent with the doctrine of the separation of powers, the court has a duty to ensure that the Council comply with the Constitution and the Local Government: Municipal Structures Act 117 of 1998. From the express provisions of the Rules of Order, particularly Rule 6(6), Ms Faul, the Manager of Corporate Services, had no authority to call a Special Council Meeting. Rule 6(6) of the Rules of Order sets out the circumstances under which a special council meeting may be called. A special council meeting may be convened by either the Speaker or the Municipal Manager, contingent upon the submission of a written request by a majority of the Councillors. It is evident that the majority of Councillors did not provide a written notice to the Speaker to convene the special council meeting, nor did they outline the reports that were to be dealt with during this meeting. The Municipal Manager had no authority to unilaterally schedule a special council meeting, as there was no formal request from the majority of Councillors for convening such a meeting.

Findings: It was irrational for the Council to follow a process that precluded the Councillors and Councillor De Bruyn from fairly and adequately submitting relevant considerations and properly responding to the allegations made in the motion calling for his removal. The procedure set forth by the Speaker did not enable the Council to make a rational decision regarding the motion of no confidence against the second applicant. In my considered opinion, the removal of Councillor De Bruyn from the position of Executive Mayor was unlawful and should be reviewed and set aside. The impugned decisions made by the Council are unconstitutional and unlawful. In terms of section 172(1)(a) of the Constitution, the decision to remove Councillor De Bruyn from his position as the Executive Mayor is found to be inconsistent with the Constitution and must be declared invalid.

Order: The decision by the Council of Theewaterskloof Local Municipality at its meeting are declared unconstitutional, unlawful and invalid. The impugned decisions are reviewed and set aside.