- within International Law, Environment and Antitrust/Competition Law topic(s)
The Constitutional right to basic services is an issue of fundamental importance in South Africa yet many citizens across the country still lack access and have been unlawfully deprived or dispossessed of these essential services. This article examines the Supreme Court of Appeal's ('SCA') judgment in Mafilika and Others v Elundini Local Municipality and Another which sheds light on whether tenants of a leased property can have their electricity and water supply disconnected by their local municipality without reasonable prior notice and whether such a decision constitutes administrative action.
Background facts
In this matter, the tenants of a property in the Eastern Cape had their electricity supply disconnected when the title holder of the property requested the Elundini Local Municipality for a "temporary disconnection" pursuant to their contractual arrangement relating to the provision of electricity to the property. The following day the tenants' water supply was also disconnected. Both of these terminations were done without any pre-termination notices given to the tenants.
The tenants thereafter launched an urgent application in the Eastern Cape Division of the High Court in which Part A of the application sought an urgent mandatory interdict compelling the Local Municipality to restore their electricity and water supply to the property immediately, as well as an interim interdict restraining the Local Municipality from terminating the electricity and water supply pending Part B of the application. Under Part B, an order was sought declaring the Local Municipality's termination of these services without prior notice to be unlawful; null and void ab initio, and not procedurally fair in terms of Promotion of Administrative Justice Act 3 of 2000 (PAJA).
This application was opposed by the Local Municipality who further raised a non-joinder point alleging that the provision of water services to the property did not fall within its mandate, but rather with the Joe Gqabi District Municipality ("the District Municipality"), which had not been joined as a party to the proceedings. It accordingly denied disconnecting the water supply to the property, whilst arguing that its disconnection of the electricity supply was not unlawful, as it was carried out at the property owner's request in accordance with their contractual arrangement. As such, the decision did not qualify as administrative action requiring procedural fairness in the form of reasonable prior notice or the opportunity to make representations.
The High Court upheld the Local Municipality's non-joinder point and dismissed Part A of the application, as it held that the termination of the electricity supply was not administrative action, and that the tenants had not established a prima facie right for the interim relief. The High Court further dismissed Part B of the application and awarded costs against the tenants.
When the matter proceeded before the SCA, the issue on appeal was whether these services could be lawfully disconnected from the tenants' leased property, without first providing them with reasonable notice, and if required, an opportunity to be heard in terms of PAJA.
The matter before the SCA
In relation to the non-joinder issue raised by the Local Municipality, the SCA agreed that – in accordance with the Local Government: Municipal Structures Act 117 of 1998 – the supply of water to the property was the responsibility of the District Municipality and that the Local Municipality was not responsible for disconnecting the water supply. Accordingly, the District Municipality had a 'direct and substantial interest' in the matter – yet it had not been joined as a party to the proceedings – so no order could be granted in relation to the reconnection of the water supply.
The SCA then examined whether the High Court had erred in finding that the tenants had failed to establish a prima facie right for the interim interdict sought. In this regard, the SCA held that the duty of local government to provide electricity is governed by the Constitution, statutes and municipal by-laws. In terms of the Local Government: Municipal Systems Act 32 of 2000, all members of the local community must be given equitable access to 'basic services' which the Constitutional Court has held includes electricity. Furthermore, in terms of the Local Municipality's Electricity Supply By-Laws, it was required to supply electricity to the residents within its area of jurisdiction.
The SCA took guidance from the Constitutional Court's judgment in Joseph and Others v City of Johannesburg and Others which held that a lack of contractual privity between tenants and service providers (such as a local government body) did not eliminate the rights of tenants to procedural fairness. Indeed, the Constitutional Court confirmed that the constitutional rights to dignity and access to essential services establish a legal relationship which obliged a municipality to provide notice and an opportunity to be heard, before disconnecting a basic service irrespective of the property owner's views.
The SCA concluded that the High Court had erred in finding that the Local Municipality's disconnection of the electricity supply to the property was a contractual decision, and not administrative action under PAJA. The tenants were entitled to procedural fairness, which included reasonable notice of the impending termination of service and an opportunity to make representations. The tenants' appeal was therefore upheld with costs and the High Court's order was set aside and replaced with an order which directed the Local Municipality to restore the electricity supply to the property within 24 hours after service of the court order, pending the final determination of the orders sought in Part B.
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