Tshwane metro fails to execute high court order

The City of Tshwane Metropolitan Municipality has failed to follow a high court order instructing it to reconnect the electricity supply to six units in a sectional title scheme at the Zambezi Retail Park shopping centre in Pretoria.

The municipality indicated in a letter to the attorneys of Vresthena (Pty) Ltd, the owner of sectional title units that leases them to different businesses, that it will not be reconnecting the electricity supply to these units – and requested an undertaking that Vresthena not reconnect the electricity itself.

Read: Tshwane must reconnect electricity to sectional title units at Zambezi Retail Park

This led to Vresthena lodging a further urgent application to compel the Tshwane metro to:

• Reconnect the electricity to these units;

• Assist Vresthena by temporarily disconnecting the electricity that feeds to the Zambezi Retail Park/China Mall substation to allow Vresthena to install all the necessary parts and/or effect all necessary repairs to the relevant substation; and

• Reconnect the electricity supply to the substation immediately after it has completed the necessary repairs to this substation.

Vresthena is also asking for authorisation to approach the high court for any “consequent relief” if the metro, or any party acting on its behalf, prevents reconnection of electricity supply to these units – and it wants the metro to be ordered to install a meter at the substation, which will be linked to its rates account once the reconnection has been done.

The latest application follows a string of court applications by both parties to resolve a dispute about the electricity supply to these units.

The Vresthena properties share a single electricity supply point, with the metro providing electricity through the Zambezi Retail Park body corporate – but the body corporate has been dysfunctional since inception, and on 28 March 2022 the municipality issued disconnection notices to tenants and occupiers due to their alleged failure to pay for electricity and other services.

Flurry of legal activity

The services were disconnected on 13 April 2022, prompting Vresthena to file an urgent application asking the court to compel the metro to accept and review its application for a separate electricity connection for the tenants and an order to restore its electricity and water supply.

Read: Tshwane’s R1.4bn electricity debt aggravates Eskom’s cash flow crisis

On 16 June 2022 the High Court in Pretoria ordered the municipality to restore services to the property within 14 days and authorised Vresthena to instruct an electrician to reconnect the electricity should the municipality fail to do this.

On 6 July 2022 the municipality lodged an application for leave to appeal. This saw Vresthena file an application (on 23 August 2022) seeking a declaratory order that the 16 June court order not be suspended while the leave application was considered.

Read: City of Tshwane ‘at risk of being placed under administration’

The court on 28 September granted the municipality leave to appeal the 16 June judgment but ordered that the latter order be carried out pending judgment on the appeal.

The municipality then exercised its automatic right of appeal under Section 18(4) of the Superior Courts Act by filing an appeal to the full court of the Gauteng Division of the High Court in Pretoria against the execution order.

This appeal was rejected on 10 November 2022, with the court issuing an order allowing the main order to be implemented while the appeal decision was pending.

The municipality thereafter filed a ‘notice of appeal’ on 22 November 2022 in the Supreme Court of Appeal (SCA).

On 22 June 2023 the SCA ruled that this was “irregular and void and no proper appeal served before us” and struck the matter from the court roll with costs.

Vresthena property administrator Desiree van der Walt said in regard to the latest urgent application that the SCA judgment was “in essence, the fourth order confirming that the council [metro] had to reconnect the electricity”.

Frustration

She said Vresthena’s legal representatives have since 22 June 2023 engaged the municipality’s legal representatives to establish when the electricity will be restored.

She said the municipality responded on 29 June 2023 by delivering:

• An application for special leave to appeal the full court’s order;

• An application seeking condonation for the late delivery of the petition for special leave to appeal; and

• Correspondence to the effect that the municipality “will not reconnect the electricity” and requesting “an undertaking that the applicant [Vresthena] will not reconnect the electricity”.

Van der Walt said Vresthena informed the municipality that the petition to the SCA is incompetent and it will, in terms of the high court order, proceed to reconnect the electricity.

“An urgent undertaking was sought, that the Council [municipality] will not impede the applicant and provide assistance with the reconnection, by no later than 4 July 2023, failing which this application will be launched” she said.

“When this affidavit was finalised and deposed to, no timeous response had yet been received from the Council.”

‘Squandered money’ and millions spent on diesel

Van der Walt said the entire premises at Zambezi Retail Park have been without electricity since 12 August 2022 and claimed, among other things, that:

• The previous disconnection between 13 April 2022 and 13 July 2022 cost Vresthena R2 019 986.55 in diesel to supply temporary electricity to the tenants through a diesel generator.

• Vresthena at its own expense, due to the municipality’s inaction, reconnected the electricity supply in accordance with the court order at a cost of R724 000 but these expenses had been squandered because of the August 2022 disconnection.

• Should this application succeed, Vresthena will use the R200 000 on parts and labour to reconnect the electricity.

• If the full court’s order is implemented, and Vresthena incurs this expense, it has a more than reasonable apprehension that the municipality will not hesitate to cut the supply, which, if this occurs, would mean this money would have been squandered for no reason, yet again.

• Since the electricity was disconnected again, Vresthena has spent over R19 million on diesel to date to keep the lights on.

• The substation was looted, and all the cables and equipment stolen, when the electricity was previously disconnected and [this] will happen again, causing harm to both Vresthena and the municipality. In addition, each time the municipality disconnects the electricity, it removes the parts Vresthena purchased and refuses to return them.

• There cannot be any conceivable prejudice to the municipality if the full court’s order remains operative because it sufficiently caters for a process to determine exactly how much electricity Vresthena and its tenants are consuming and Vresthena tenders to make payment to the municipality.

Tshwane metro spokesperson Lindela Mashigo said on Wednesday the city can confirm that the matter is still pending and that it has petitioned the SCA.

“Thus, the matter remains sub judice,” he said.

Hein Wiese from Wiese & Wiese Inc Attorneys said on Wednesday that the municipality has not yet given notice of its intention to oppose Vresthena’s latest urgent application.