De Koker v Eskom Holdings SOC Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Du Plessis AJ
• Judgment Date: 19 September 2023
• Citation: 2023 JDR 3606 (GJ)
• Hearing Date: 04 August 2023
• Docket Number: 077168/2023
• Court: Gauteng Local Division, Johannesburg

Du Plessis AJ:

[1]

This application came before me in the urgent court on Friday, 4 August 2023, with the Applicant seeking an interim interdict to reconnect their electricity supply, pending the finalisation of a dispute between First Respondent and Second Respondent. I gave the order set out at the end of this judgment and stated that the parties can request reasons for the decision if they require them. On 24 August 2023,

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the Respondent requested reasons in terms of Rule 49(1)(c). This judgment is the reason for the order given in the urgent court.

[2]

The Applicant is a tenant in a unit in a sectional title scheme wholly owned by the Second Respondent. She rents one of the 60 units that, according to her affidavit, are occupied by low-income families, including the elderly and minor children. The Applicant will be referred to as “the tenant”.

[3]

The First Respondent is Eskom Holdings SOC Limited, a state-owned public company with a share capital, incorporated per the company laws of the Republic of South Africa. It is the sole electricity supplier in the country and either supplies electricity to municipalities that then manage the electricity supply to end users or directly to end users. [1] The First Respondent will be referred to as “Eskom”.

[4]

The Second Respondent is the owner of the sectional title scheme. The sectional title scheme does not get its electricity through a municipality. It is thus in the second category of users, as described above. The Second Respondent will be referred to as “the landlord”.

Background

[5]

Eskom disconnected the electricity supply to the sectional title scheme where the tenant resides on 25 July 2023 and again on 1 August 2023. They aver the disconnection happened without receiving prior written notice from Eskom.

[6]

The tenant avers that a formal dispute was lodged by the landlord that has allegedly not been resolved before termination. The tenants are reliant on the electricity supply at their homes. Each unit on the property has an IS-Metering remote electricity meter, whereby each unit of electricity used is run on a “pay-as-you-go” basis. The

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tenants are up to date with their payment for electricity, which the landlord collects and must pay over to Eskom.

[7]

The tenant states that the disconnection of the electricity not only poses security risks. Since many tenants work from home, the disconnection of electricity affects their ability to work. The disconnection of electricity also impacts the hygiene of the tenants as there is no hot water to clean themselves. There is no water in some units because the pumps are not working is there is no electricity. It also impacts the tenants’ ability to cook meals and for the children to do their homework, presumably once it is dark. After a few days of disconnection, the food goes off. All this is an infringement of the tenants’ rights, she claims.

[8]

The tenant argued that she and the other tenants would not be afforded substantial redress if this matter is placed on the regular roll, as they cannot afford to be without electricity for that long.

[9]

Eskom opposes the application, citing an abuse of the court process, since the landlord (as the owner of the building) brought an application in the Gauteng Division, Pretoria, the previous week, to have the electricity restored to the same property, with similar relief. It was struck from the roll. Eskom states that this application is thus merely an attempt to circumvent that order.

[10]

In the first urgent application, Eskom argued that the landlord did not prove that the tenants were the poorest of the poor and were suffering inconvenience or that it was a low-cost development. Since they were further not party to the proceedings, the landlord could not rely on the alleged plight of the tenants. Likewise, in this application, they state that the tenant did not demonstrate that she is the poorest of the poor or that any of the other tenants are the poorest of the poor. The crux of the problem, Eskom states, is that the landlord has been collecting payments for electricity since the property development was established in April 2022 but never paid these payments over to Eskom. According to Eskom, the landlord thus wants to receive free electricity, which is unreasonable and illegal.

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[11]

As for the disconnection, Eskom states that they have no obligation towards the tenant as the end user to serve an advanced notice in terms of the planned termination of electricity, as it acts in terms of the Electricity Regulation Act. [2] It has a right to disconnect a customer that is not paying. If that customer is a landlord, the landlord must inform the tenants of the pending disconnection.

[12]

Although the validity of the reasons for the disconnection was not before this court it will be briefly dealt with for context.

[13]

Eskom denies that there is a dispute with the landlord. They say that when the first urgent application was launched after the first disconnection, they agreed to “without prejudice” try to solve the problem without going to court. When the talks did not lead to a solution, Eskom reminded the landlord that they would disconnect the electricity if no payment were received by 1 July 2023. There was further communication between Eskom and the landlord, where Eskom reminded the landlord to pay the monies, or at least the non-disputed portion. Eskom states that it gave the landlord two notices of intention to disconnect the electricity – one on 23 May 2023 and the second on 18 June 2023.

[14]

Eskom states that the only query lodged was for not receiving bills, and once the statements were sent, there was no dispute anymore. In its founding affidavit to the first application, however, it refers to “disputed charges” and that “while the dispute is under investigation, the Applicant needed to pay the remainder of the account”. [3] Later they state that “investigations relating to the disputed units were pending and Eskom was still waiting for the detailed metering information from the Applicant”. [4] There is thus a dispute about whether there is a dispute, and what the dispute is about.

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[15]

There is also not agreement as to whether there is a valid agreement. Eskom states that there is no electricity supply agreement (ESA), as the landlord amended the agreement, which amendments Eskom did not accept. Eskom does, however, refer the court to specific clauses in the agreement, and avers that the landlord is liable for certain Service Charges usually arising from an ESA. The landlord also paid a guarantee of R450 000, as required by the ESA. Based on this, the landlord avers there is at least a tacit or oral agreement.

[16]

Be that as it may. Whether there is a valid dispute and/or agreement is not for me to determine. The background is to contextualise how the tenants’ electricity disconnection came about.

[17]

What can be concluded from the papers are: The landlord collected monies from the tenants through pre-paid meters and has not paid all the money over to Eskom because they dispute the amount charged. The landlord has made some payments. The landlord further relies on the R450 000 guarantee to state that there is no prejudice for Eskom in investigating the disputes before payment, as it has access to the guarantee. However, Eskom states that that is not the purpose of the guarantee. At least through its attorneys and on the statement from Eskom, the landlord has received notification of the disconnection. Eskom did not serve any notice on the tenants, who are the end users of the electricity and who have been paying for electricity.

[18]

The electricity was thus disconnected on 1 August 2023. This prompted the landlord to launch the first urgent application on 2 August 2023, which was struck from the roll. The tenant then launched the second urgent application on 3 August 2023, and enrolled on my roll to be...