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Eskom in illegal connection court battles

Published Oct 1, 2023


A BODY corporate has lost its court bid to prevent Eskom from disconnecting power supply to 350 families living in a housing complex in Madadeni, Newcastle, after failing to honour a payment arrangement for debt of more than R1 million.

Five days after the disconnection, Meadowlands Estate Body Corporate remedied the situation by entering into a new payment arrangement with the power utility on September 5.

However, unbeknown to Eskom, Meadowlands was also supplying electricity to a neighbouring complex comprising 108 low-cost units, via an illegal connection.

Meadowlands already had a separate running court battle with their neighbours, Highlands Estate Body Corporate, over unpaid monies.

According to their arrangement, Highlands was to pay 42% of Meadowlands’ monthly Eskom electricity bill.

Meadowlands claimed that Highlands had’t fulfilled that obligation since July 2022, which was the subject of a separate court battle between the two body corporates.

Residents of Highlands had to also gone without electricity when Eskom stopped its supply to Meadowlands on September 1.

But when Eskom reinstated the connection on September 5, Meadowlands did not do the same for Highlands.

Nearly two weeks later, a Highlands resident brought an urgent High Court application, listing Eskom and Meadowlands as respondents.

Eskom opposed the matter and it was also struck off the roll with no relief being granted for reconnection.

Meadowlands made their initial payment arrangement request to Eskom regarding arrears of more than R670 000 on June 13 and an upfront payment of over R191 000.

Eskom accepted that the balance of the arrears be paid in nine equal instalments (R53 000) and the arrangement also stipulated that Meadowlands must continue to pay for its monthly usage.

Any default in payments would result in the immediate termination of the arrangement, the outstanding balance, plus interest, would be due in full and Eskom would have the option to disconnect supply.

Meadowlands failed to pay the current usage bill of more than R372 000, which was a breach of the arrangement, resulting in its automatic termination.

Again, on August 8 and 10, Eskom notified Meadowlands’ of its intention to disconnect power supply in 14 days and the total amount due was R1 257 000.

On August 31, Meadowlands' urgent application, which was struck off, was heard at the Pietermaritzburg High Court.

Eskom was represented by advocates Dees Ramdhani, SC, and Sthando Kunene in the Meadowlands and Highlands matters.

Siyabonga Mazibuko, a Meadowlands trustee, deposed an affidavit in the application to interdict Eskom from disconnecting power because of its impact.

On why Meadowlands breached the arrangement, Mazibuko said they had not received payments from Highlands since July 2022, setting them back financially.

As a result, Meadowlands imposed their own load shedding on Highlands.

Highlands brought an urgent application for the resumption of normal service of electricity via Meadowlands on November 10, which was upheld.

Highlands was also ordered to install a bulk meter system within 21 days or the order would fall away,

They did not adhere to the 21-day stipulation and the order fell away, which caused them to make another High Court application in December.

Then, the court ordered that the protection from disconnection be extended until Eskom installed the meters.

Eskom was not a party to the proceedings.

The court also ordered that if the meters were not fitted, Highlands should approach the courts to compel Eskom to do so by January 23.

Mazibuko reiterated that the main reason for their debt with Eskom was Highland’s failure to pay for its portion of consumption and the entity not installing the bulk meters, this resulted in undeserving harm. Therefore, they sought protection.

An Eskom manager, Thandi Mbanjwa, deposed an affidavit and affirmed that it was the entity’s right to use any legitimate means to recover debt from delinquent customers.

Mbanjwa said that Meadowlands had conceded they owed Eskom for electricity supplied and it was not acceptable according to law to use “financial constraints” and a “lack of resources” as a defence for non-payment.

She said Meadowlands breached the arrangement made in June, and due to their “contractual relationship”, the disconnection was justified.

With Meadowlands and Highlands embroiled in a legal battle, to which Eskom was not a party, “no court order can compel it to do a certain thing”, said Mbanjwa.

She stated there was no basis for “urgency” in the matter as Meadowlands knew in July Eskom intended to disconnect supply.

Mbanjwa said Eskom needed its customers to pay so that it could pay its own suppliers and overheads, and non-payment worsened the state of the beleaguered entity.

She confirmed that Eskom had no supply agreement with Highlands and that the arrangement between the body corporates was “unlawful”.

Ncebakazi Kango, a Highlands resident brought the urgent application that was dealt with in Pietermaritzburg on September 15.

Kango claimed that the disconnection to Highlands, either by Meadowlands or Eskom, was “unlawful” as residents were not given notice of termination.

She couldn’t understand why they were in arrears as each unit at Highlands had pay-as-you-go meters.

Kango said the disconnection greatly inconvenienced residents, and questioned why their power was not reconnected after Eskom and Meadowlands reached an agreement in September.

In response to Kango’s application, Mbanjwa said it was “fatally defective” and a gross abuse of court processes.

Mbanjwa confirmed they disconnected supply to Meadowlands and not Highlands as they had no contractual agreement with it, and the supply of electricity to Highlands from Meadowlands was illegal.

A court cannot compel Eskom to supply electricity to an end user when it could not be guaranteed payment.

She stated that Eskom only became aware of Kango’s application on September 14, at 1.45pm via Highlands, leaving them half-a-day to file a response to a matter beginning the next morning, which was prejudicial.

Mbanjwa questioned why Kango waited nearly two weeks before lodging the application. Therefore, the matter was not urgent.

In both matters, Mbanjwa stated that Highlands and Meadowlands could have approached the National Energy Regulator of SA, which was a body with wide powers to intervene in such matters, instead of going to court, but they did not.