Dladla and others v Ethekwini Municipality

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Nicholson AJ
• Judgment Date: 04 April 2023
• Docket Number: 2799/2023
• Hearing Date: 17 March 2023
• Court: KwaZulu-Natal Local Division, Durban

Nicholson AJ:

[1]

The applicants, on an urgent basis, approach this court seeking inter alia an order for the restoration of their electricity by the eThekwini Municipality (the respondent), on the basis that the respondent's failure to give them 'individual' notice [1] of the electricity disconnection resulted in their rights to procedural fairness being infringed.

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[2]

In the founding affidavit, the applicants aver that despite there being no contractual privity between the applicants and respondent; based on the reasoning in Joseph and others v City of Johannesburg and others ('Joseph'); [2] as tenants of the PLM Motel, situated at 542 Mahatma Gandhi Road, Durban, KwaZulu-Natal ('the property'), they have a right to procedural fairness in terms of the Constitution, and that right entitles them to individual service of the notices of termination of services, and seek an order that their rights be remedied, and their electricity restored while their rights are being remedied.

[3]

The applicants seek an ancillary order for condonation for the non-adherence to the Uniform Rules of Court and that the matter be heard as urgent in terms of Uniform rule 6(12).

Factual Background:

[4]

The facts of this matter are not complicated and are largely common cause to the extent stated otherwise hereinbelow.

[5]

The application papers were filed on or about 14 March 2023 and served on the respondent on or about 14 March 2023 at approximately 15:19. The matter was then heard in motion court on 15 March 2023 where counsel for the respondent sought to have the matter struck from the roll in light of the very short service and on the basis that a similar matter, between the parties and concerning the property, was removed from the roll less than two weeks prior.

[6]

I ordered the matter be adjourned to 17 March 2023 to allow the respondent to deliver an answering affidavit.

[7]

On the day of the hearing, considering my order above, I was advised by Ms Lennard that she and the respondent's attorney had agreed that she

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would be given an answering affidavit on 16 March 2023 no later than 16:00; however, she only received the answering affidavit the morning of 17 March 2023, being the date the matter was to be heard; accordingly, she was unable to file a replying affidavit.

[8]

The genesis of this matter is a notice of 'disconnection of services' (relating to the electricity) which the respondent attached to the property on 7 February 2023 ('the notice'). The notice is addressed to Ms S Moodley of 4 Sai Raj Villa, 72 Villa Avenue, Umhlatuzana, from a manager in the credit control department of respondent, advising her that the electricity to the property is scheduled to be disconnected on or about 21 February 2023 at approximately 10:00 in consequence of arrears owing to respondent, amounting to R 7 767 138.83. [3]

[9]

Considering the notice and Ms Moodley's failure to settle the debt, the electricity services were duly disconnected on 21 February 2023.

[10]

On 3 March 2023, under case no. D2206/2023 [4] in the KwaZulu-Natal High Court, Durban, Ms Moodley brought an urgent application on less than one day's notice seeking an order that the electricity be restored, pending further representations with the respondent.

[11]

The above matter was heard before me where counsel for the respondent argued that the papers failed to make out a case for an interim order, because inter alia they failed to demonstrate a prima facie right to the interdict in light of the arrears, and the failure by the applicant to adhere to a previous credit agreement.

[12]

Mr Broster, who appeared for the respondent in that matter, sought an order that the matter be dismissed, and that the applicant pay the costs on an

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attorney and client scale as a result of both the very short service and the papers failing to make out a case for the relief sought.

[13]

I ordered that the matter be removed from the roll and that the applicant pay the wasted costs, and granted the applicant leave to supplement its papers. It is unclear if that matter has been re-enrolled.

[14]

In the present application, the applicants aver that on or about 5 March 2023, it was brought to their attention by Ms Moodley that the application under case number D2206/2023 had been adjourned and as a result, the electricity would not be restored.

[15]

Mr Dladla who deposed to the founding affidavit on behalf of the applicants, states that he personally spoke to Ms Moodley about the plight of the tenants, who advised him that in terms of Joseph, [5] as tenants they may approach the court because their rights to procedural fairness had been infringed. He was further advised that in consequence of the infringement of their rights, they were entitled to receive notice of the termination of the electricity.

[16]

In motivation for the relief sought, the applicants stated that they were not afforded any notice of the electricity disconnection; although they subsequently established that, while a notice was stuck to an entrance lobby, it had been removed by a very irate tenant. In the circumstances, their right to procedural fairness has been infringed. [6]

[17]

Further, the applicants aver that they were neither individually served with the disconnection notice, nor were they advised of the reason that the electricity would be disconnected, despite their paying their electricity bill to the landlord monthly, even in circumstances where other tenants struggled to pay

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their electricity bill, and the meter readings being exceptionally high and fluctuating monthly.

[18]

In dealing with the property itself, the applicants further aver that approximately fifty-six families occupy the property, including thirty children below the ages of 9 and 16 and elderly individuals over the age of 70. The bottom of the building has a crèche that looks after children up to three years old.

[19]

I pause to mention here that neither in the founding affidavit, nor in the applicants' address to me, was it ever advanced that the applicants bring this application on behalf of all the tenants of the building. In the circumstances, the amount of people living in the building, their ages, and the fact that the building also consists of a commercial business is irrelevant to this application. Further, it is unclear how the applicants would have knowledge of these averments, being mere tenants, because the founding affidavit does not explain this insight.

[20]

The applicants further aver that the conditions of the property without lights are horrific because the building is very dark, and the tenants are at risk of being robbed. The electricity pump that pumps water to the various areas is unable to function which contributes to the dysfunction of the property.

[21]

The applicants state that they would like to install separate prepaid meters but in light of the respondent's failure to give them 'individual' notice of the planned disconnection, they were never afforded the opportunity to make those representations to the respondent.

Disputes:

[22]

The disputes raised in the answering affidavit can be summarised as follows:

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(a)

the respondent disputes that the applicants are long-term residential tenants of the property because the property is a commercial entity that rents out rooms on an hourly basis for R90 per hour as evidenced from a sign on the building, [7] and none of the applicants have put up any lease agreements nor documentation evidencing their occupation over a period of time or having paid for their alleged electricity;

(b)

it is common cause that a notice for the disconnection of services was put up on the building, although it was subsequently removed by an irate tenant which the respondent cannot be held responsible for; [8]

(c)

the building has no long-term residential tenants but only daily tenants and commercial tenants;

(d)

as far as urgency is concerned, nothing in the papers justifies urgency and accordingly, this application amounts to an abuse of process. [9]

Power of Attorney:

[23]

At the commencement of the hearing, Mr Veerasamy handed to me a notice in terms of Uniform rule 7(1) that was served on the applicants' attorney of record on 16 March 2023. I understood from Mr Veerasamy's address to me that the reason for the notice is that they dispute that the attorney of record truly has a mandate to bring this application.

[24]

It is evident from the submissions and the papers handed up to me by counsel, which I deal with hereinbelow, that indeed the Uniform rule 7(1) notice was not strictly complied with. Uniform Rule 7(1) reads:

'Subject to the provisions of sub-rules (2) and (3) a power of attorney to act need not be filed, but the authority of anyone acting on behalf of a party may, within 10 days after it has come to the notice of a party that such person is so acting, or with the leave of the court on good cause shown at any time before judgment, be disputed, whereafter such person may no longer act...