INTRODUCTION

On 25 June 2025 the Free State High Court granted an order for the urgent restoration of electricity supply to Mr. Moloabi’s business premises. Mr. Moloabi is a sole proprietor of two separate businesses – a takeaway and printing shop which have been in operation since the year 2014. The judgement reinforced the right to electricity supply where same has been unlawfully dispossessed and the importance of proper notice prior to disconnecting electricity.

BACKGROUND FACTS

This was an application where Mr. Moloabi, (“the Applicant”) was unlawfully deprived of electricity supply to his business premises by Eskom (“the Respondent”). The Applicant sought the urgent restoration of electricity supply to his business premises. The matter was heard on an urgent basis where the Applicant sought the confirmation of a Rule Nisi (a provisional court order granted in urgent applications which serves as an interim order, until a proper hearing ventilating the views of the parties can be held to finalize the matter).

Eskom supplied the Applicant with electricity, and he received invoices from Eskom on a monthly basis by way of email. In and during February/March 2023 the Respondent installed a new electricity meter. On 17 March 2023 the Applicant received a tax invoice in the sum of R21 009.71 (Twenty-One Thousand, Nine Rand and Seventy-One Cents). On receipt of the invoice, the Applicant attended at the Respondent’s office to enquire about the exceptionally high tax invoice.

The Respondent advised the Applicant that they used estimate readings from July 2021 to the date of the installation of the new meter in March 2023. The Respondent advised that the charges from July 2021 to March 2023 were incorrect and these were corrected in March 2023; hence the large bill since Eskom had mistakenly undercharged the Applicant using estimated readings for almost two years from July 2021 to March 2023.

On 20 March 2024, the Applicant received another tax invoice in the sum of R148 995.70 (One Hundred Forty-Eight Thousand, Nine Hundred and Ninety-Five Rand and Seventy Cents). On 23 May 2024 the Applicant attended at the Respondent’s offices to seek clarity on the second exceptionally high tax invoice from the previous month, 20 March 2024.

The Applicant, through his attorneys, dispatched correspondence to the Respondents to dispute the high charges – they responded, however, the dispute remained unresolved.

A short message service (“SMS”) was sent to the Applicant by the Respondent on 11 October 2024, requesting the Applicant to submit his meter readings. On 14 October the Applicant received another SMS from the Respondent, directing the Applicant to pay R197 585.23 (One Hundred and Ninety-Seven Thousand Five Hundred and Eighty-Five Rand and Twenty-Three cents) to avoid disconnection.

As the Applicant did not make payment of the disputed amount, the Respondent proceeded to disconnect the electricity supply to the Applicant’s property, prompting the Applicant to launch an urgent court application because the Applicant alleged that the disconnection was unlawful in the circumstances. The basis of the allegation of unlawfulness of the disconnection stemmed from the fact that there was an on-going and unresolved dispute between the Applicant and Eskom at the time when Eskom disconnected the supply.

ARGUMENTS MADE IN COURT

Disconnection Notice served by SMS?

The Applicant argued that the SMS notice that disconnection would take place was not a proper notice – it was insufficient in law, lacked relevant information such as the date, place, and time when the disconnection would take place and could not justify the disconnection.

ESKOM’S ARGUMENT

In response to the Applicant, the Respondent argued that there existed a contractual relationship between the Applicant and the Respondent, where the Applicant was responsible for the purchasing of electricity, and the Respondent had the duty to supply same.

The Respondent further argued that the Applicant cannot consume its services for free, and that due to non-payment, they were left with no other option but to discontinue the electricity supply.

WHAT IS SPOLIATION?

Spoliation at its core has to do with unlawful disposition – when a person is stripped of property (or in the case of electricity/water, stripped of the supply of that service to the property) without their consent and without a court order authorising the action.

South African law protects possession of property and quasi-possession (which is the possession of electricity and/or water supply at a property) even in circumstances where the person in possession in not the lawful owner. The idea behind protecting possession and not ownership is not aimed at making life difficult and taking away the rights of the owner – instead it is aimed at preventing any person from becoming their own judge, jury and executioner and going around grabbing stuff away from other people simply because they think that they ought to be the person who is in possession of the thing.

Our law requires people who want to take someone else’s possession of a thing away, to do so lawfully – which means with the possessor’s consent or with a court order, failing which the taking away of possession is unlawful in certain circumstances. Our law seeks to avoid people making the call for themselves who is entitled to what, when this decision should be decided by our courts.

Our justice system and rule of law does not allow you to take the law into your own hands – in such circumstances it is important to follow the due legal procedures to enforce perceived rights and obtain a court order before dispossessing someone.

Accordingly, the status quo (meaning the situation immediately before the unlawful dispossession) must be restored before any dispute about who is entitled to what is even entertained. The responsible party is compelled to return possession immediately, without arguing the merits of ownership or use – thus protecting the possessor from an unlawful undisturbed possession.

The requirements to found a claim for an order for the restitution of possession of spoliation were dealt with in Scoop Industries (Pty) Ltd v Langlaagte Estate and GM Co¹:

1. The Applicant was in possession; and
2. That he has been wrongly deprived of that possession and against his wish.

To succeed with this defence, it has been established that there must be clear proof of possession and of the illicit deprivation. It is imperative to show that you had free and undisturbed possession.

The Applicant bears the onus to prove he was in possession of the premises to which the electricity is supplied, and that the Respondent wrongfully and unlawfully deprived him of possession.

DISCUSSION ON THE LAW OF SPOLIATION

The issue for determination before the court is whether there existed an appropriate remedy for the unlawful deprivation of electricity, and whether the Applicant could solely rely on spoliation as a remedy.

At the heart of the dispute was a distinction being made between whether the right to supply of electricity is of a purely personal nature (which cannot be protected by the mandament, and must be protected through contract law) or whether the supply is something more than purely personal – such as partly flowing from legislation (or the Constitution, which is a form of legislation), a common law right or a servitude.

In First Rand Ltd t/a Rand Merchant and Another v Scholtz NO and Others² Malan AJ held as follows:

“The mandement van spolie does not have a ‘catch-all function’ to protect the quasi possessio of all kinds of rights irrespective of their nature. In cases such as where a purported servitude is concerned the mandement is obviously the appropriate remedy, but not where contractual rights are in dispute or specific performance of contractual obligations is claimed: its purpose is the protection of quasi possessio of certain rights. It follows that the nature of the professed right, even if it need not be proved, must be determined or the right characterized to establish whether its quasi possessio is deserving of protection by the mandement. The right held in quasi possessio must be a ‘gebruiksreg’ (right of use) or an incident of the possession or control of the property”.

Our courts will thus protect the supply of electricity to a property even where the right is partly contractual (such as where a person gets their supply from Eskom) if there is also a statutory basis for the right. In South Africa, when it comes to electricity, our courts have long held that electricity is an incident of the use and possession of a residential property, meaning that the property itself cannot be used and enjoyed fully without electricity. As a result, when you deprive a person of electricity supply, you deprive them of their ability to use and enjoy their property.

So, what is being taken away is not just electricity – it is a person’s ability to live in and enjoy their home fully. This is a violation of a person’s right to housing and arguably property in terms of the Constitution. For this reason, the right to electricity is bundled up with the right to housing in such a way that the one affects the other, and since the right to housing is constitutional (namely protected by statute) the right to electricity has a partially statutory origin. This makes it not a purely contractual right, but a right that is bundled up with the use and occupation of the property – which is known in law as a “gebruiksreg”. The court in Moloabi looked at two other cases pertaining to gebruiksreg.

In Tshumisano Trading v Bronkhorst³ the court dealt with a scenario where the right to electricity arises from a contractual relationship is not available to third parties. The court dismissed an application to order the respondents to reinstate electricity supply to business premises. The court held that since the contractual arrangement with the respondents was entered by a close corporation that the applicant controlled, the applicant lacked locus standi. Without a contract for the supply of electricity, the applicant could not prove a right to electricity.

In City of Tshwane Metropolitan Municipality v Vresthena (Pty) Ltd and Others⁴, the court considered the question whether a business can enforce its right to receive electricity if the body corporate under which that business falls fails to pay its service fees to the municipality. Vresthena owned sectional units in the Zambezi Retail Park Sectional Title Scheme which it leased to various business entities, and the Municipality provided electricity to these business entities through the Body Corporate of Zambezi Retail Park (“Body Corporate”). The Municipality supplied electricity to the different sectional title units, and the Body Corporate would then be billed. Due to the Body Corporate’s continuous failure to pay for services, the Municipality implemented credit control measures, which included the disconnection of electricity in an attempt to collect the outstanding revenue. Vresthena brought an urgent application to the High Court to reinstate the supply of electricity, and the Court granted the order against the Municipality.

On appeal, the Supreme Court of Appeal (“SCA”) found that the court a quo had erred in its decision to compel the Municipality to reinstate Vresthena’s electricity supply and that the court a quo’s order was contrary to the Municipality’s constitutional obligations to take appropriate steps to ensure the efficient recovery of debt and ultimately forces the Municipality to continue to supply electricity to the Body Corporate despite their non-payment of service fees. In arriving at its decision, the SCA reiterated that the Body Corporate concluded a contract with the Municipality to supply electricity to the respective businesses, in turn, the Body Corporate remains liable for the payment of electricity supplied and any amounts in respect of other services provided by the Municipality.

It was held that although electricity is a basic municipal service, the right to receive electricity is conditional on the payment thereof.

In our law, the spoliation remedy will protect a gebruiksreg, meaning that electricity can be protected by the mandament as a gebruiksreg even where there is no contract between the parties, or even where there is a contract (such as where a person gets their electricity form Eskom) provided that the right is not purely personal – that it is partially servitutal or legislative in some way.

THE COURT’S FINDING IN MOLOABI:
MANDAMENT PROTECTS GEBRUIKSREG EVEN IN THE ABSENCE OF AN ELECTRICITY AGREEMENT

The Respondent contended that it had requested on numerous occasions the Applicant to conclude an Electricity Supply Agreement (ESA), but the Applicant failed to do so. The Court held that the absence of a signed written agreement, however, did not absolve the Respondent from liability in terms of the mandament. The deprivation of the electricity supply to the property was a gebruiksreg and thus protected by the mandament (in common law) even though there was no signed written contract between the parties.

THE COURT’S FINDING:
IS ELECTRICITY PROTECTED BY THE MANDAMENT?

The Respondent argued that the relationship between the Applicant and the Respondent is contractual – that the mandamus is not a suitable remedy under the circumstances because the Applicant’s right to electricity supply is purely contractual (purely personal) in nature.

In Eskom v Masinda⁵, the court held that quasi possession of a right, specifically electricity supply, does not enjoy protection under mandament if the right is purely contractual in nature. The court further stated that, “in a context of a disconnection of a such a service, spoliation should be refused where the right to receive is personally in nature”. In this case, however, the court was faced with strange facts – and one must be careful not to apply this decision to the facts of all cases where the facts are not similar.

In Makeshift 1190 (Pty) Ltd v Cilliers⁶, which clarified the situation in Masinda, the court decided that mandament is available for restoring the quasi possession of electricity supply that is derived from a contract where the supply is a gebruiksreg.

Although in spoliation proceedings a court is not concerned with whether or not the right has been established, the facts must show that prior to the alleged spoliation the claimant enjoyed undisturbed quasi – possession of the alleged right, in the sense of performing acts demonstrating the exercise thereof.

The Court summarised the key facts as being that the Applicant has held a professed right to the use of the business premises since 2014, the matter was premised on a purported servitude (right of use), and it was held that mandement is the appropriate remedy. It was further held that the Respondent has been supplying electricity to the property from which the Applicant runs a business. A distinction was drawn that this is not a personal right, but a right bestowed by servitude (right of use), and that spoliation finds application.

WHAT DOES THIS MOLOABI V ESKOM JUDGMENT MEAN FOR SOUTH AFRICAN BUSINESS OWNERS?

1. Before Eskom can lawfully disconnect the supply of electricity to a business, Eskom must observe procedural requirements as set out in section 21(5) of the Electricity Regulation Act⁷. Eskom needs to give you notice of the disconnection as required by law. Notice by SMS in the manner that Eskom sent in this case, was held to be insufficient.
2. In addition, in instances where there is an increase in your electricity bill/invoice – lodge a query with Eskom – and clarity must be provided on same (query must be finalised / dealt with in totality). Termination of supply before the dispute is finalized is unlawful.
3. Act before you are terminated. When you get a termination notice (or SMS), immediately seek legal advice to better understand your rights and options. If necessary, submit representations as to why you should not be terminated and/or make the necessary arrangements for payment.
4. Do not leave billing disputes and hope that they will magically disappear. Press the service provider to finalize the dispute and fix the problem. The longer the period of time that goes by from when the dispute arises, the harder it becomes to solve the billing dispute.
5. In instances where the electricity supply to your business premises has been terminated unlawfully, it is advisable to seek legal advice as to how you can challenge the unlawful termination, claim damages if relevant and obtain a court order to have the supply reconnected.

CONCLUSION

Eskom must ensure its disconnection procedures are carried out in line with its own regulations, that its notices are adequate – should the disconnection not meet any of the requirements, then it is unlawful and affected parties can challenge Eskom’s unlawful actions in court, or in other forums such as NERSA or in some cases in arbitration.