Principles of spoliation
It is trite (accepted) law that if any person or entity (including a state entity such as a municipality) unlawfully deprives another person of a thing (which includes the supply of services such as electricity and water), that the person so deprived has a remedy in our law based on the mandament van spolie for the immediate restoration of the thing deprived.
This is because our law frowns on self-help, and in the great majority of cases will only authorize the ‘taking’ of a thing from another after a court has considered the issue and granted an order authorising the taking.
The taking of a thing without a court order is thus normally considered unlawful, unless there is another authorisation in law for the taking (such as legislation authorising it).
It is an accepted principle of our law that statutes that authorise acts that can be potentially harmful must be ‘restrictively interpreted’, meaning strictly interpreted and adhered to, in order to ensure that the minimum amount of damage is done. This applies to any statute authorizing the termination by a municipality of electricity and/or water supply – the most notable of which is section 97 of the Local Government: Municipal Systems Act 32 of 2000.
The above principle has been upheld in a number of reported and unreported cases, including Midvaal Local Municipality vs Meyerton Gold Club (A30338/14) 2014 ZA GPJHC 256 15 October 2014, African Billboard Advertising (Pty) Ltd vs North & South Central Local Councils Durban 2004 (3) SA 223 (N), Sithole vs Resettlement Board 1959 (4) SA 115 (W), Minister of Finance & Others vs Ramos 1998 (4) SA 1096 (C) and George Municipality vs Wiener & Another 1989 (2) SA 263.
This principle was most recently upheld by Judge Wepener of the Johannesburg High Court in the unreported case of Shanike Investments 85 (Pty) Ltd v The City of Johannesburg Metropolitan Municipality (8187-2018) [2018] ZAGPJHC 420 (7 March 2018) (unreported), a copy of which can be accessed on the Saflii website. In his judgment Wepener J cited the above cases with approval, and found that the City of Johannesburg’s actions in terminating the supply of electricity to a property without a court order was unlawful, because the statute upon which the municipality relied for authorisation to terminate the supply (when interpreted restrictively) did not expressly authorize the termination without a court order.
In Rademan v Moqhaka Municipality & others (173/11) [2011] ZASCA 244 (01 December 2011), Judge Bosielo opined in para 16 (Judges Lewis and Petse concurring) that: “I am of the view that it would not be practical for municipalities to pursue these matters [obtaining court orders authorising termination] in court. It cannot be gainsaid that such a step would result in the municipalities being mired in such cases, losing precious time in the process and incurring high legal bills unnecessarily.”
At para 27 he further concluded that: “Having considered all the relevant legislation, it is clear to me that there is no statutory instrument which requires a municipality to obtain a court order authorising the discontinuation of a municipal service.”
With the greatest of respect to the Supreme Court of Appeal, judges referred to above, the authors hereof are of the view that their decision was flawed inasmuch as it did not take into account the precedents set, and up to that point of time, maintained for decades, in our law. It is possible that this principle was not argued before the court and that this explains why it was not considered in this case.
The principle that statutes that can cause people harm must be restrictively interpreted remains intact, and as such, all state action (including terminations of service supply by municipalities) must take place strictly in accordance with the authorizing legislation. However, unfortunately, the Supreme Court of Appeal case in Rademan overrules all other precedents set in relation to the termination of services by a municipality. Accordingly, until such time that the Rademan case is overturned by another ruling in either the SCA or a higher court, a municipality may disconnect the municipal services to a property, without first having to obtain a court order authorising them to do so.
