In Mafikila & Others v Elundini Local Municipality & Another [2025] ZASCA 142, a unanimous bench found in favour of tenants residing in a property in respect of which the Local Municipality, without notice to the tenants, discontinued the supply of electricity.
In this matter, the owner of the property requested the Municipality to discontinue the supply of electricity to the property, and this request was duly carried out by the Municipality.
In consequence, the tenants brought an urgent application to the High Court where they were unsuccessful.
On appeal to the Supreme Court of Appeal, the following was held:
- In terms of the Constitution, the objects of a local government include the provision of services to communities in a sustainable manner (Section 152(1)(b)), and a municipality must structure and manage its administration to give priority to the basic needs of the community (Section 153(a)).
- In terms of the Local Government Municipal Systems Act 32 of 2000 (“Systems Act”), municipal councils are required to give members of the local community equitable access to the municipal services to which they are entitled (Section 4(2)(f)). Sections 73(1)(c) and 73(2)(a) further provide that a municipality must ensure that all members of the local community have access to at least the minimum level of basic service and that such services must be equitable and accessible.
- The Constitutional Court in Mkontwana v Nelson Mandela Metropolitan Municipality [2004] ZACC 9, held that electricity is a component of basic services. It concluded that municipalities are constitutionally and statutorily obliged to provide their residents with electricity.
- In Joseph & Others v City of Johannesburg & Others [2009] ZACC 30, the Constitutional Court held that tenants of a property were entitled to notice of disconnection of electricity supply. The Court held this included an adequate notice of at least 14 days before disconnection. Further, By-Laws dispensing with the obligation to adequately inform those receiving electricity of a proposed termination were unconstitutional.
- The fact that the Municipality in the matter before the Supreme Court of Appeal had a contractual relationship with the owner did not supersede the Constitutional and Systems Act obligations imposed on the municipality.
- The decision by the Municipality to cut off the supply of electricity to the tenants was an administrative action and fell under the auspices of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
Conclusion
The Court therefore found that the decision by the municipality was procedurally unfair and that the supply of electricity must immediately be reinstated pending action brought by the tenants in terms of PAJA.