This article deals with the law relating to the removal of “illegal” electricity meters and connections. By parity of reasoning it can be applied equally to “illegal” water meters and connections.
Facts of Eskom Holdings SOC Ltd v Sidoyi and Others
In this case Mr Sidoyi had applied for a pre-paid electricity meter to be installed in his home. Eskom admits that his application shows on its system, but alleges that the supply applied for was only an ‘indigent’ supply. Mr Sidoyi’s property consists of 12 flats and it was common cause that the indigent supply was a supply large enough for a property with 12 flats.
Mr Sidoyi’s version was that he had utilized an unnamed contractor of Eskom’s to install the supply whereas Eskom alleges that if the contractor was an authorized contractor this would have appeared from Eskom’s records. Eskom disconnected his supply after its contractor determined that the installation was a danger to the public, on the basis of both the danger it presented and the fact that (according to Eskom’s records) the supply was never authorized by Eskom.
Mr Sidoyi alleged that the disconnection of the supply was unlawful and that he was entitled to be reconnected because (i) he had purchased pre-paid electricity and was entitled to use it (ii) his supply was lawful because Eskom conceded that he was purchasing pre-paid credit using his pre-paid card (iii) the disconnection was unlawful because Mr Sidoyi had not been advised of the disconnection, it being administrative action that adversely affected his rights, and certain other provisions of the Promotion of Administration of Justice Act (“PAJA”) had not been complied with.[Side Note- spoliation – It is worth noting that Mr Sidoyi did not raise the defense of spoliation and so this case does not relate to or alter any principles of law relating to spoliation.]
Does purchasing pre-paid electricity give you a right to remain in possession of an electricity supply?
The Supreme Court of Appeal (“SCA”) held that purchasing pre-paid electricity supply would only entitle the person with a lawful supply to remain in possession of and to utilize that pre-paid credit. It would not assist a person who had an illegal supply (and according to the Court, Mr Sidoyi’s supply had not been established as being lawful).
Does purchasing pre-paid electricity amount to conclusive proof that the supply of the meter was lawful?
The SCA held that it does not. Eskom conceded that an indigent supply was noted on its systems, but this was not the supply that was actually provided to the property in question. There was no application for the
supply at the property in question before the Court, although Mr Sidoyi was adamant that he had utilized a contractor of Eskom who told him he was authorized to install the supply. The Court thus found that Mr Sidoyi’s actions in purchasing pre-paid credit for the meter using his card, did not amount to action that ‘regularized’ or ‘legitimized’ the unlawful supply at the property.
Mr Sidoyi’s rights in terms of PAJA
The SCA explained that Mr Siboyi could not have succeeded in claiming that he was unlawfully disconnected in terms of PAJA because he was not given proper notice and an opportunity to make representations to Eskom about why his power should have not turned off, unless he had a lawful right to the supply of electricity in the first place (which he had not established on the evidence before the Court).
Side Note – Spoliation
Importantly (but in a subtle and inconspicuous way) the Court in this case confirmed its finding earlier this year in Eskom Holdings SOC Limited v Masinda. In paragraphs 5 and 17 the Court says that if his supply was lawful, the appropriate remedy for Mr Sidoyi would have been to enforce his contractual rights to a restoration of the supply in terms of the contract.
Often parties who have been deprived of their electricity/water supply, allegedly unlawfully, will bring an application to court claiming the immediate restoration of that supply on the basis of the mandament van spolie. In Masinda, the SCA held that the supply of electricity at a property did not necessarily constitute an incident of the use and enjoyment of that property and as such, was not necessarily protected by the mandament.
The Court held that in cases where the right to receive the supply of electricity at the property arises from contract and not from another limited or real right (such as a servitude) or legislation, the right was not capable of protection by the mandament and the appropriate relief to be sought was protection in terms of the contract itself. As such, the Court in Sidoyi confirmed the finding in Masinda that the supply of electricity by Eskom to a residential property is a mere contractual right, and the manner in which that supply is to be protected is in terms of the contract itself and not through spoliation.
Law Authorizing Removal of Illegal Meters
Eskom relied additionally on Regulation 7(7) of the Occupational Health and Safety Act to argue that it was entitled to disconnect the supply because there was a fault or defect in the
installation that rendered it a danger to the public. The Court’s finding was that if the supply was indeed unlawful, Mr Sidoyi would have had no claim for a reconnection. In the end the Court referred the matter to trial for further evidence to be led on whether or not the supply was indeed unlawful.
The issue of applying to court for an order that electricity supply be restored is more complicated than often thought. It is no longer open for the aggrieved litigant to simply resort to the mandament – as it will not protect mere personal rights. Applicants for reconnection of residential electricity supply from Eskom will henceforth have to plead and prove their contractual rights to reconnection. In cases where the connection was unlawful or there was a defect in the installation that justifies disconnection in terms of the Occupational Health and Safety Act as referred to above, applicants will not be entitled to reconnection.
Written by Chantelle Gladwin-Wood and Lauren Squier