IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)

Case no. 27415/2008 ROYAL NORTHLANS GOLF AND COUNTRY

ESTATE (PTY) LTD (REG NO 1997/01748/07) APPLICANT

And

BELA BELA LOCAL MUNICIPALITY RESPONDENT

JUDGMENT

MAVUNDLA J.

[1] The applicant has approached this Court by way of an urgent application

seeking an order in the following terms:

" 1 . That the application be dealt with in accordance with the provisions

of Rule 6(12) of the Uniform Rules of Court this dispensing with the

t ime limits and forms;

2. The respondent be ordered to reinstate the Applicant's electricity

supply in relation to account 102499/003943 on Portion 56 (a

Portion of Portion 25) of the farm Het ad 465;

3 The Responent be ordered to pay the costs of this application on a

scale as between attorney and client

4 Further and /or alternative relief."

[2] In its founding affidavit the applicant states that the purpose of the

application involves an order against the respondent for the reconnection/

reinstatement of the electricity service supply to the applicant pursuant to

an agreement in relation to alleged arrears of same and payment thereof

by the applicant to the respondent, thus settlement of the electricity

account in full 0. Respondent, contrary to the agreement without any

reason thereof, bluntly refuses to reinstate the applicant's electricity

services under circumstances which renders the application urgent.

[3] The applicant is the registered owner of Portion 56 (a Portion of Portion

25) of the farm Het Bad 465situated within the boundaries. The applicant

is since 1996 in the process of developing a golf and country estate in the

said property. Towards this end the applicant states that the parties

entered into an agreement which deals with bulk electrical services to be

supplied by the respondent to the applicant. It is further averred that its

common cause between the parties the applicant had access to electricity

supply against payment to the respondent of its prescribed tariffs(levies)

and consumption.

[4] The applicant states that the electricity supply to itself was disconnected

by the respondent on 26 February 2008, the applicant not having paid its

account. A variety of visits to the respondent's offices and subsequent

negotiations between itself and the respondent as well as the applicant's

attorneys, which related not only to the electricity supply, but to further

unrelated disputes not relevant for purposes of this application.

[5] The applicant further avers that during the course of negotiations since

March 2008, the applicant endured not having electricity supply to its

premises. The applicant further avers that during April and again in May

2008 it received very disturbing electricity accounts on its municipal

account. The electricity average consumed by the applicant in rand value

averaged approximately R20, 000,00 Per month. The April and May

account however indicated approximately R99 000,00 added to the

electricity consumption at the applicant's premises It avers that the

respondent was clearly wrong in this regard.

[6] According to the applicant the dispute pertaining to the electricity, together

with certain other disputes, unrelated to the present application but to the

development as a whole, including property rates and taxes and but

services installed on behalf of the respondent by the applicant. Culminated

in the applicant's decision to call a meeting with duly authorised

representatives of the respondent with a view to air all possible disputes

between the parties and in an attempt to finalise same.

[7] The applicant further avers that the reason why during the early parts of

May 2008 it decided to endeavour to settle all outstanding issues between

itself and the respondent resulting from the applicant's endeavours is that:

7.1 During April 2008 the applicant for reasons unrelated to this

application, settled all monetary issues outstanding between the parties

ant the appl icants professional team, causing the contractual relationship

that existed between the applicant and its professional team, causing the

contractual relationship that existed between the applicant and its

professionals to cease.

7.2 The applicant successfully negotiated and concluded a service and

construction agreement with a Malasian company, AL-AMBIA SDN.

BHD.to

7.2.1 rectify and complete the installation of the internal services; and

7.2.2 construct 460 golf and residential villas on the Royal Northland &

Golf Estate proclaimed township; and

7.2.3 redesign (with Gary Players's assistance) and upgrade the

Warmbaths Golf course and club (forming part of the development as a

whole)

7.2.4 The agreement as stated above, was reached after two visits from

the foreign contingent and executors of the financier (EXIM BANK

(MALASIA); The date of the company's representatives' arrival and

subsequent planning and construction process is set for 20 June 2008.

The 'time line" planning involved careful consideration and recruitment of

local contractors and sourcing of materials for the construction process.;

the applicant had as a matter of urgency to f inalise (if possible) the

outstanding disputes as between itself and the respondent. With the

construct ion date in mind, the applicant thus caused upon its attorneys to

arrange a meeting with all relevant role-players from the respondent at

their earliest convenience.

[8] The applicant further al leges in its affidavit that there was a meeting

between the parties with their respective representatives on 21 May 2008.

The applicant further avers that after some serious debate between the

parties it was agreed that the respondent shall investigate the dispute

regarding electricity account, and the respondent would revert to the

applicant within 24 hours. The applicant shall record all other issues and

its view on such issues and that the respondent shall after investigating

and reschedule a meeting for bon f ide negotiat ions to finalise all

outstanding matters. It was further impressed on the respondent 's

representat ives that due to the arrival of the Malasian construction team

during mid-June 2008 dispute should and must be finalised as a matter of

extreme urgency to determine the applicant's indebtedness in respect of

the electricity account so as to enable the applicant to settle its inbtedness

to the respondent. The applicant further state that the electricity account

was dealt with separately due to the fact that the other issues were

unrelated to the electricity bill and this was confirmed by its attorneys on

26 May 2008 which letter is marked annexure E. On 29 May 2008

(attached and marked annexure F) the respondent furnish it with a

breakdown of the electricity account and advised that as per its "Credit

Control policy, the outstanding balance must be settled in full before

services can be reinstated "

[9] The applicant further state that on 30 May 2008 it caused a payment in the

amount of R45684, 00 to be made, which is the amount on the

respondent's version is the applicant's current indebtedness in relation to

the electricity consumption and charges. The applicant has however

stated that annexure "F" indicates a credit for electricity consumption that

amounts to R97 609, 34. On the 30 May 2008 the respondent through Ms

Baartman bluntly stated that there was no agreement existing in terms of

which the respondent is obliged to "switch on the electricity again." The

respondent subsequently stopped in dismay of the response of Ms

Baartman stopped payment of the aforementioned payment. The

respondent further states that it would serve no purpose to settle the

electricity account, if other disputes, relating to approximately R6.8 million

cannot be resolved prior to 20 June 2008. The applicant further states that

there is no legal nor factual basis for the respondent to renege on the

agreement to reactivate the electrical services at the property of the

applicant. It is however the applicant's view that it has settled the

electricity account.

[10] With regard to urgency the applicant states that should the matter not be

heard before 20 June 2008 the applicant's contractors will lose faith in the

development process, with an international embarrassment and this in

turn might cause the applicant irreparable monitory damage. It further

states that the consequences of respondents action resulting in no

electricity available to the applicant to pursue its construction, is self

evident. Ultimately the respondent stands to gain 460.

[11] The respondent is opposing this application. In its opposing affidavit its is

stated inter alia that its common cause that the applicant and the

respondent have entered onto a service agreement on or about 20

August 1998. In terms if the agreement , the applicant was responsible for

the payment of property tax at the prevailing tariffs and the applicant had

access to electricity supply against payment to the respondent of the

prescribed tariff (levies) and consumption.

[12] It is stated further by the respondent that as far back as the 20 September

2007 the applicant and the respondent had a meeting regarding the

applicant's outstanding balance owing to the respondent in the amount of

R1 700 000, 00, The respondent indicated to the applicant that it was

willing to accept R1 100 000, 00 payable immediate payment of an

amount of R550 000, 00 thereafter upon payment of a further amount of

R550, 000, 00 Payable in three equal instalment. The respondent set out

this position in two separate letters dated 27 September 2007 and 30

October 2007. The respondent further informed that applicant that its

water and lights must be paid to date since its credit control measures will

be taken on the payment of this account and that failure to honour this

agreement would lead to the respondent reversing the whole agreement.

The respondent adopted a credit and debt collection policy in terms of

section 96 of the Municipal System Act, Act 32 of 2000, The respondent

further states that it informed the applicant on various occasions in writing

of the fact that non-compliance with the aforesaid agreement would lead

to the respondent implementing its credit control policy on the applicant's

accounts with itself. Save for the payment of only R550 000,00 the

applicant failed to honour the agreement by not paying the rest of the

outstanding amount of approximately R1 200 000, 00 on time. On 22

January 2008 the respondent informed the applicant that due to the

applicant's dishonouring of the agreement the applicant was reversing the

whole of the agreement and the full outstanding amount would be due

and that the respondent had no alternative but to introduce its credit

control policy. The respondent further informed the applicant that it will

therefore be disconnecting the electricity supply to the applicant as from

22 January 2008. Apart of the payment of the amount of R550 000,00 the

respondent did not receive further payment between October 2007 and

January 2008 Subsequently the respondent terminated the electricity

supply in February 2008. On 11 March 2008 the respondent informed the

applicant that due to the applicant's dishonouring the previous agreements

the respondent had no alternative but to implement its credit control policy,

notwithstanding the receipt of payment of an amount of R 106 815, 09

which was received on 31 January 2008

[13] With regard to urgency the respondent points out that the electricity was

terminated on 26 February 2008 and was fully aware of the respondent's

credit control policy regarding reconnection. The respondent further states

that the application is premature.

[14] Counsel for the applicant has referred me to, inter alia, to the Mandarina

Trading 488 CC v Bela Bela Local Municipality unreported judgment of

Br. Justice Van Der Merwe which dealt with the aspect of property tax

levied by the Local Authorities on properties. I am of the view that the

relevant case is not apposite to this particular case which relates to the

issue of reconnection of the electricity supply to the applicant. The

submission made on behalf of the applicant is, inter alia, that the accounts

issued by the respondent not only for the 13 individual erven, but also for

portion 56, in the absence of a lawful entitlement thereto, cannot create a

right to receive such taxes or an obligation to pay same. This submission,

in my view goes against the very application of the applicant who primarily

seeks an order compelling the respondent to reconnect the supply of

electricity to the applicant. The effect of such an order would result in a

situation in terms of which the applicant is supplied with electricity which in

turn it consumes but refuses to pay towards such supplied electricity

because, according to it, the respondent does not have a lawful

entitlement thereto and can therefore not demand for the payment of such

supplied electricity.

[15] In the letter of the applicant's attorneys of record dated 26 May 2008

(annexure E) it is conceded that the applicant has not had electricity

supplied to it since from 26 February 2008. It therefore is common cause

that the electricity supply to the applicant was disconnected since about

26 February 2008. It is common cause that this application was only

launched on 6 June 2008. Approximately more than 15 weeks after such

termination. Once the applicant decided to embark on the cause of

settlement, the applicant lost out its right to approach this Court on urgent

basis for reconnection of the supply of electricity. Besides the applicant

concedes that there still remain issues in dispute between the parties. I

therefore hold the view that the application is not urgent and it must be

dismissed for this reason.

[16] In the matter ZULU v MINISTER OF WORKS KWAZULU, AND OTHERS

1992 (1) SA 181 (D &CLD) at 190F-H at Thirion said that:

"I am of the view that since the appl icants use the water did not

constitute the use of a servitutal right and since any right which the

applicant might have had to have water supplied to him did not

constitute an incident of his possession or control of a corporeal

thing (i.e. his dwelling house), it would not be competent to grant a

spoliation order ordering the respondents to resume supplying the

applicant with water. To hold otherwise would in effect mean that

the Court would grant an order for specific performance of a

contractual obligation in proceedings the respondent is precluded

from adducing evidence to disprove the existence of the obligation.

If a spoliation order were to be competent in the present case and

were to be granted, the respondent would have to Court and obtain

judgment author sing them to terminate the supply of the water. If

they fail to convince the Court that they have a right to terminate

the water supply they would presumably be compelled to pump

water free of charge to the appl icants house for ever." Vide also

TELKOM SA Ltd v XSINET (Pty) LTD 2003 (5) SA 309 at 314G

paragraph [14].

[17] I am of the view that what is said by Thirion J I in the above quoted

paragraph is apposite to this matter The applicant has conceded that

there is a dispute about the electricity account and the parties have not

settled such dispute. To order the applicant to reconnect the supply of the

electricity supply would be ordering the respondent to perform specific

performance of a contractual obligation, which obligation I am not satisfied

that the applicant has acquitted the onus resting upon it to discharge that it

exists. For this reason the application must fail. But also for the reason

that the application is not urgent the application must also fail. In the result

the application must be dismissed for both reasons.

[18] It is trite that costs follow the event. Consequently the applicant must bear

the costs of this application. However I do not think that this is a matter

where I must grant punitive costs.

[19] In the premises I make the following order:

1. That the application is dismissed with costs.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE: 12/06/08

DATE OF JUDGMENT: 19/06/08

APPLICANTS ATT: Mr. BAARTMAN

APPLICANT'S ADV: MR.P ELLIS SC., with

APPLICANT'S ADV: MR. J ROUX.

RESPONDENT ATT: MR. A.P. LEDWABA.