Lesedi Local Municipality received a beating in Heidelberg Magistrate’s Court on April 10 after they were taken to court by property owners for disconnecting the electricity supply to a house in Walker Street, Rensburg.
Gerhard Strydom (magistrate) found that the municipality (respondents) acted unlawfully by disconnecting electricity without 14 days prior notice and that the right to terminate the electricity supply was being used for another purpose, namely to enforce payment of another debt which would render the action illegal and unlawful. The electricity supply therefore had to be restored immediately.
It all started when the municipality disconnected the electricity to the property in January in spite of the owner having declared a dispute with the municipality over a so called amount of R20 796,40 owed by the property owner. According to Madelein Saunders (attorney) for the applicant the municipality acted wrongfully because they went through with the disconnection in spite of the dispute not yet being handled by an independent forum.
The owner received no prior account or notice that any amount was due to the municipality. He also did not receive a notice beforehand informing him that the electricity will be disconnected.
The owner instructed his letting agent to investigate and she was provided with a printout of the owner’s account with a handwritten note attached to it indicating that the amount was due as a penalty fee due to a ‘hot wiring episode’.
In opposing the court application, the municipality relied exclusively on an affidavit by the Executive Manager: Corporate Services.
The respondents aver that the electricity supply has been lawfully terminated because of non-payment of rates and taxes by the owner of the property.
The respondents further alleged that the first applicant neglected, refused or failed to register as a consumer with the first respondent; and that furthermore the applicant or his agent by-passed or hot wired the electricity supply resulting in the respondent supplying the property with electricity for a period of 62 months without the purchase of electricity tokens.
The respondents further alleged that the amount owed is for a penalty and is thus not an account.
Section 102 (1) of The Local Government Municipal Systems Act 32 of 2 000 gives the right to municipalities to terminate or suspend services to residents who refuse or neglect to pay their rates and taxes and may for this reason disconnect the electricity supply without a court order.
Saunders referred to various court cases in South Africa in connection with the lawful seizure of property. Non compliance with the provisions of the Criminal Procedure Act in seizing a person’s goods is unlawful. This unlawfulness, plus the other requirement for a spoliation order satisfies the requisites for the order. All that the despoiled person need prove is that he/she was in possession of the object and he/she was deprived of possession unlawfully.
Saunders said possession of the electricity supply to the residence by the owner cannot be denied by the municipality. The supply of electricity is an incident of the possession of the property itself. “It is therefore common cause or uncontroverted that the applicants were in possession and they were deprived of that possession by the actions of the respondents. The only question remaining is whether the deprivation of possession was lawful. It is clear that the deprivation will be lawful if the applicants are in arrears with their municipal accounts.
“The right so given to LLM to terminate the electricity supply because of non-payment may not be used for another purpose. The municipality stated in the affidavit that the amount owed is not in terms of an account. The respondent’s own version is therefore that there is no overdue or arrears account and that the right to terminate the electricity supply is being used for another purpose, namely to enforce payment of another debt, which would render the action illegal and unlawful.”
Saunders referred to Section 102 (2) of The Local Government: Municipal Systems Act which reads: ‘Subsection (1) does not apply where there is a dispute between the municipality and a person referred to in that subsection concerning any specific amount claimed by the municipality from that person.’
“Without the benefit of Section 102 (1) of the act, the municipality may not implement the debt collection and credit control measures provided for in respect of a consolidated account. It may thus not terminate one service because money is owed in respect of something else.”
The law determines that local authority may not terminate the electricity supply without giving at least 14 days’ prior notice.
According to Saunders, the municipality did not act lawfully in terms of their own credit control policy. They were supposed to send a letter in writing, demanding payment. If the account holder does not respond to the first letter, the municipality then has to give notice that the service will be disconnected if the account holder does not pay the amount or at least make other arrangements. If the municipality follow these steps and a dispute is called in terms of article 102 (2) of the Local Government Municipal Systems Act 32 of 2 000, the municipality is not allowed to continue with the disconnection of the service. The dispute has to be investigated first and a decision made by an independent forum before any action can be taken.
Mr Strydom found in favour of the property owner and judgement with costs was given against the respondents.
