The courts have to be more vigilant when granting applications for interim interdicts.
The building belonging to 39 Van Der Merwe Street, Hillbrow CC (the Applicant) and the City of Johannesburg have been in an electricity dispute since 2012. The City disconnected the Applicant’s electricity supply and was met with successful interdicts from the Applicant in 2012, 2017, 2020 and March 2023.
The Applicant used these interdicts to escape its obligations under the Local Government: Municipal Systems Act of 2000 (Systems Act). The Applicant had only paid R103 090.37 for 2 years and 9 months for the consumption of electricity for a building hosting 208 tenants. This astonishingly amounts to a meagre R3 123.95 per month.
The crux of the case dates back to the 2012 Order, wherein the Applicant was granted the following order:
- The Applicant to submit within 10 days from the date of this Order, a list containing the Applicant’s queries on the accounts which queries shall be addressed by the parties during a meeting;
- The meeting pertaining to the statement and debatement will take place as soon as is reasonably possible.
- The City shall not disconnect the Applicant’s municipal services, including water and electricity pending the convening of the meeting pertaining to the statement and debatement; and
- Until such time as the City has reverted in writing to the Applicants’ attorney of record, whereby the City addresses all the issues raised in the abovementioned list.
The applicant was entitled to bring an action proceeding for the statement and debatement of its account.
On 6 July 2023 the City disconnected the Applicant’s services due to an illegal electricity connection at the property. The City was willing to reconnect its services in the event that the Applicant made an initial payment and sign an acknowledgement of debt – the Applicant refused.
Eleven years later, the Applicant claimed that it was entitled to the benefit of the 2012 order on the ground that the statement and debatement remain unresolved, and that the interdict is an interim one pending a resolution. The failure to launch the action, which only the Applicant could do, has certainly been advantageous to the Applicant. While the arrears that were owing in 2012, which resulted in the disconnection in 2012, were still not paid.
The Applicant then launched a further urgent interdict for the reconnection of the electricity supply.
The Applicant appointed two electrician’s to refute the City’s allegations of any illegal electricity connection. The court held that the two witnesses were hopelessly inadequate in assisting with the resolution as both inspections were after the City officials visited the property. Their evidence failed to destroy the evidence of the City that it found illegal connection at the property.
Due to the avoidance of payments by the Applicant over the last few years for the consumption of electricity for the 208 tenants, an inference was further drawn by the Court in favour of the City’s claim that there was an illegal connection.
Interim interdicts are capable of being, have been, and continue to be abused by parties that succeed in securing or resisting one. One way a court can prevent such abuse is to issue a rule nisi to a specific date for the parties to litigate all outstanding elements of the suit, and to set strict time limits for the parties to adhere to an interim order.
Ultimately, the court held that the Applicant has no right, real or prima facie, to having electricity sold to it by the City, any right held by the Applicant, has been forfeited by its unlawful conduct. Should it seek to purchase electricity from the City, it should conclude a mutually acceptable agreement with it.