THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   104/2011
Reportable

In the matter between:

CITY OF CAPE TOWN                                                         APPELLANT

and

MARCEL MOUZAKIS STRÜMPHER                            RESPONDENT

Neutral citation: City of Cape Town v Strümpher (104/2011) [2012]
ZASCA 54 (30 March 2012)

Coram:
Mthiyane DP, Van Heerden, Bosielo, Majiedt JJA and
Ndita AJA

Heard:
12 March 2012
Delivered:
30 March 2012

Summary:
Right to water ─ access to water supply cut off by
water service authority ─ whether service founded solely on contract ─
whether spoliation order available to water user.

_____________________________________________________________________

ORDER

On appeal from: Western Cape High Court, Cape Town (Desai J and
Gassner AJ sitting as court of appeal):

The appeal is dismissed with costs.
___________________________________________________________

JUDGMENT

MTHIYANE DP (VAN HEERDEN, BOSIELO, MAJIEDT JJA and
NDITA AJA CONCURRING)

[1] This is an appeal from a judgment of the full bench of the Western
Cape High Court (Desai J and Gassner AJ) upholding a spoliation order
granted by the Strand Magistrates‟ Court, in terms of which the City of
Cape Town (the City) was directed to reconnect the water supply to a
property in the Strand (the property) owned by the respondent. The
respondent alleged that the disconnection of the water supply constituted
interference with his statutory water rights in terms of the Water Services
Act 108 of 1997 and constituted a spoliation. He argued that the water
supply could not be disconnected unless the amount in arrears had been
determined judicially in the City‟s favour. The City on the other hand
contended that the summary disconnection of the water supply was
authorised by the City‟s water by-law and its debt collection by-law. It
maintained that water was supplied to the respondent in terms of a supply
contract it had with him and that, on the authority of the decision of this

court in Telkom SA Ltd v Xsinet (Pty) Ltd,1 a mandament van spolie was
not available to the respondent. On appeal to this court with the leave of
the court below, the City advances the same argument.

[2] The common cause facts are succinctly summarised by Gassner
AJ. For the past 37 years the respondent has operated a caravan park for
permanent tenants at the property. Throughout that period the respondent
had use of water supplied by the City. On 16 May 2007 the City notified
the respondent that unless arrears of some R182 000, which had
accumulated on the property‟s water account, were paid within two days,
the water supply would be disconnected.

[3] On 28 May 2007, the respondent‟s attorneys addressed a letter to
the City querying the water account and declaring a dispute2 regarding
the accumulated arrears. The dispute had been on the table for some time.
Previous accounts showed that something was amiss because in certain
months the recorded water usage was exceptionally high without good
reason. It had been demonstrated to an employee of the City, who had
visited the property, that the water meter was defective and kept running
even when the main water connection was closed. After conducting an
inspection on the property, the City had the old water meter and the main
connection removed and replaced. However, a leakage was discovered
where the old water meter and the main connection had been removed
and this was reported to the City. After several pipes were replaced by the
respondent, at the request of the City following the report, the recorded
water usage dropped.

1 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA).
2 The meaning of „dispute‟ is explained in clause 7(1) of the City‟s Credit Control and Debt Collection
Policy which reads as follows:
„. . . “dispute” refers to the instance when a debtor questions the correctness of any account rendered by
the Municipality.‟

[4] On 17 August 2007 the City disconnected the water supply to the
property without responding to the letter of 28 May 2007 from the
respondent‟s attorneys. In its answering affidavit the City did not deal
with the merits of the dispute, set out in general terms in the founding
affidavit, but merely focused on technical points. It contended that the
mere existence of a dispute did not avail the respondent because, for
example, the City‟s monthly statement to the respondent stipulated that,
even in the case of a dispute, payments may not be withheld.3

[5] The above contentions did not carry much weight with the full
bench which upheld the spoliation order. Desai J then granted the City
leave to appeal to this court.

[6] The primary issue on appeal is whether the City was entitled to cut
off the water supply to the property due to non-payment of arrears,
notwithstanding the fact that the respondent disputed liability. The City
advances two main grounds as justification for its summary disconnection
of the water supply to the property. First, it argues that the respondent‟s
right to the water supply is simply a personal right founded on a contract.
Second, the City argues that its interference was authorised by its water
by-law and the debt collection by-law.

[7] The above submissions will be considered in turn. As to the first,
counsel for the City exhorted us to consider, as an appropriate starting
point, to the nature of the relationship between the respondent and the
City. He argued that if one had regard to ss 18 and 19(2) of the City‟s

3 The relevant portion of the account reads as follows:
„4. Selfs al is u in „n dispuut betrokke met die Raad oor hierdie rekening mag u nie betaling weerhou
nie.‟

water by-law4 and s 4 of the credit control and debt collection by-law,5
the relationship between the respondent and the City was a contractual
one. Referring to s 18 he argued that no person was permitted to use
water without first concluding an agreement. That section reads as
follows:
„No person may use water from the water supply system─
(a)
unless an agreement referred to in section 19 or 20 has been concluded. . . .‟
The application for the supply of water is provided for in s 19. Subsection
2 thereof reads as follows:
„(2)
An application for the supply of water approved by the Director: Water
constitutes an agreement between the municipality and the owner and takes effect on
the date referred to in the application.‟
So too, in terms of the Water Services Act, the duty of the water service
authority to provide water service is subject to the water user‟s obligation
to pay reasonable charges. (See s 11(1) and s 11(2)(d). It is clear from the
water by-laws that the supply of water is subject to the payment of fees in
respect of the supply of water. (See ss 19(3), 19(4)(b) and 23(2)(c).

[8] Counsel argued that compelling the City to supply water to the
respondent amounted to nothing more than the enforcement of
contractual rights under an agreement which, on the authority of the
Xsinet case, could not provide a basis for the granting of a spoliation
order.

[9] The argument advanced on the City‟s behalf is misplaced. It is true
that consumers, living within a municipal area, who wish to access water
from a water service authority, such as the City, have to conclude a water

4 City of Cape Town Water By-law Provincial Gazette (Western Cape) 6378 of 1 September 2006.
5 City of Cape Town Credit Control and Debt Collection By-law Provincial Gazette (Western Cape)
6364 of 15 June 2006.

supply contract with that authority. The fact that a contract must be
concluded does not, however, relegate the consumer‟s right to water to a
mere personal right flowing from that contractual relationship. It does not
relieve the City of its constitutional and statutory obligation to supply
water to users, such as the respondent. The right to water is a basic right.
Everyone has the right in terms of the Constitution to have access to
sufficient water.6 This constitutional provision is given effect to in s 3(1)
of the Water Services Act which provides that:
„(1)
Everyone has a right of access to basic water supply . . . .‟
The City‟s duty to provide water supply services is provided for in s
27(2) of the Constitution which declares that:
„(2)
The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of each of these rights.‟
Section 27(1)(b) of the Constitution is also given effect to by s 152(1)(b)
of the Constitution which provides that:
„(1)
The objects of local government are─
. . .
(b)
to ensure the provision of services to communities in a sustainable manner.‟

[10] It follows from the above statutory and constitutional provisions
that the right to water, claimed by the respondent when he applied for a
spoliation order, was not based solely on the contract which he concluded
with the City, but was underpinned by the constitutional and statutory
provisions discussed above. This view is fortified by the decision of this
court in Impala Water Users Association v Lourens NO & others.7 In that
case a water user had obtained a spoliation order directing a water user

6 Section 27(1) of the Constitution reads as follows:
„(1)
Everyone has the right to have access to─
(a)
. . .
(b)
sufficient . . . water. . . .‟
7 Impala Water Users Association v Lourens NO & others 2008 (2) SA 495 (SCA).

association in terms of s 98(6)(a) of the National Water Act 36 of 19988
to remove locks, chains and welding works from certain sluices and to
restore the flow of water from a dam to reservoirs on the water users‟
farms. A dispute arose between the parties concerning the legality of
water charges assessed by the water users association relating to the costs
of financing the construction of a dam. Although proceedings to recover
these charges were pending, the water users association decided to
exercise its powers in terms of s 59(3)(b) of the National Water Act.9 The
crucial question which the court, on appeal, had to consider was whether
the rights on which the water user relied were merely contractual rights.
Farlam JA distinguished the Xsinet decision and came to the conclusion
that the personal rights flowing from the water supply contract, which the
water user in that case had concluded with the water users association,
were replaced or subsumed into rights under the National Water Act,
which was the act that was applicable in that case. In this regard the
learned judge of appeal expressed himself in paras 18 and 19 as follows:
„[18] The first question to be considered, in my view, is whether the rights on which
the respondents relied were merely contractual and whether the Xsinet decision can be
applied. In my opinion, it is not correct to say that the rights in question were merely
contractual. It will be recalled that the respondents or the entities they represent were
all entitled to rights under the previous Water Act 54 of 1956, which rights were
registered in terms of the schedule prepared under s 88 of that Act. These rights were
clearly not merely personal rights arising from a contract. The individual respondents
and the entities represented by the other respondents all automatically, in terms of
para 7.2a of the appellant‟s constitution, became founding members of the appellant.
It is clear therefore that the rights to water which belonged to the individual

8 That section provides:
„(6) If the Minister accepts the proposal, the Minister may by notice in the Gazette─
(a)
declare the board [meaning the irrigation board] to be a water user association.‟
9 That section provides:
„(3) If a water use charge is not paid─
(b)
the supply of water to the water user from a waterwork or the authorisation to use water may
be restricted or suspended until the charges, together with interest, have been paid.‟

respondents and the entities represented by the other respondents, insofar as they were
replaced by or, perhaps more accurately put, subsumed into rights under the Act,
cannot be described as mere personal rights resulting from contracts with the
appellant. It follows that, on that ground alone, the Xsinet decision, on which the
appellant‟s counsel relied, is not applicable.
[19] The facts of this case also differ in another material respect from those in the
Xsinet case. There is was held (at paras 12 and 13) that the respondent‟s use of the
bandwidth and telephone services in question did not constitute an incident of its use
of the premises which it occupied, with the result that the disconnection by Telkom of
the telephone lines to Xsinet‟s telephone and bandwidth systems did not constitute
interference with Xsinet‟s possession of its equipment. In the present case, however,
the water rights interfered with were linked to and registered in respect of a certain
portion of each farm used for the cultivation of sugar cane, which was dependent on
the supply of the water forming the subject-matter of the right. The use of the water
was accordingly an incident of possession of each farm which was, in my view,
interfered with by the actions of the appellant‟s servants. Indeed in the Xsinet decision
itself it was said at the end of para 12 (at 314C - D):
“Xsinet happened to use the services at its premises, but this cannot be
described as an incident of possession in the same way as the use of water or
electricity installations may in certain circumstances be an incident of
occupation of residential premises.”
In my view, unless the Bon Quelle decision is to be overturned, the respondents have
clearly established that the rights to water enjoyed by the individual respondents and
the entities represented by the other respondents were capable of protection by the
mandament van spolie.‟

[11] The respondent in the present matter finds himself in a position
similar to that of the water users in the Impala case. Water users have a
statutory right to the supply of water in terms of s 11(1) of the Water
Services Act which imposes a duty on a water services authority to ensure
access to water services to consumers. It follows that the respondent‟s
right to a water supply to the property could not be classified as purely

contractual. As in the Impala case the respondent‟s right to a water
supply was subsumed into rights under the Water Services Act and
cannot be described as merely personal rights resulting from a contract as
contended by counsel for the City.

[12] I turn to the second issue of whether the City‟s interference with
the respondent‟s water supply was authorised by the Water Services Act
or the relevant water by-law and the City‟s debt collection by-laws, and is
therefore lawful. As a justification for the City‟s conduct in shutting off
the water supply, the City relied, in the first instance, on s 30(1) of the
water by-law which provides as follows -
„(1)
Subject to any other right the municipality may have, the City Manager may,
if an owner has failed to pay a sum due in terms of the Tariff Policy By-law, by
written notice inform him or her of the intention to restrict or cut off the supply of
water on a specified date and to restrict or cut off such supply on or after that date.‟

[13] The city also relied on s 11(2)(d) of the Water Services Act, which
provides that the duty of a water services authority to ensure access to
water services is subject to a duty of consumers to pay reasonable charges
and s 11(g) which authorises the water services authority „to limit or
discontinue the provision of water services if there is a failure to comply
with reasonable conditions set for the provision of such services‟. In
counsel‟s heads of argument reliance was also placed on s 9 of the debt
collection by-law. It provides that the City Manager may restrict or
disconnect the supply of any service to the premises of any user when
such user inter alia fails to make payment on the due date. Reference was
also made to s 6(5) of the Credit Control and Debt Collection Policy
where it is provided that the City shall inter alia not provide any services

to any persons who are in arrears with municipal accounts, except as
provided for in the policy as determined by the City from time to time.

[14] Armed with this arsenal of statutory provisions, the City
considered that immediate disconnection of the water supply to the
respondent‟s property was authorised. In my view, the City appears to
have overlooked the provisions of s 4(3)(a) of the Water Services Act,
which requires that „the limitation or discontinuation of water services
must be fair and equitable‟ and its own dispute resolution procedures
provided for in the Credit Control and Debt Collection Policy. Section 7
of the policy lays down the procedure to be followed when the water user
(debtor) has declared a dispute. Section 7(3)(a) thereof provides that all
disputes must be concluded by the City Manager within 30 days. Section
7(3)(d) provides for an appeal where the water user is not satisfied with
the outcome of the purported resolution of the dispute. The appeal is
lodged in terms of s 62 of the Local Government: Municipal Systems Act
32 of 2000.

[15] In my view, the dispute resolution procedures provided for in s 7 of
the City‟s policy were meant to meet the threshold requirements of
„fairness and equity‟ referred to in s 4(3)(a) of the Water Services Act.
The notification in the statement of account sent to a consumer (debtor)
suggesting that payment should be made even if the debtor is involved in
a dispute with the City, appears to fly in the face of the provisions of
fairness and equity referred to in s 4(3)(a) and the dispute resolution
procedures referred to above. To expect the respondent to pay R182 000
while he is disputing the very amount erodes the principles of fairness
contemplated in s 4(3)(a) and the dispute resolution procedures. The
harshness of the demand for payment could, however, be ameliorated by

the City insisting that the water user continue to pay his or her usual
monthly average water charge while an attempt is being made to resolve
the dispute. In my view that arrangement would be fair to both the water
user and the water services authority. This would also satisfy the fairness
and equity standard set in s 4(3)(a).

[16] There is no acceptable reason given by the City in this case as to
why the procedure prescribed in s 7 of the policy was not followed before
the water supply was to the respondent‟s property was shut off. The City
did not even provide to the respondent a written acknowledgment of
receipt of the dispute, as required by s 7(2)(e) of the policy. The flimsy
excuse given by the City, during argument, namely that the procedure
was not followed because the account number of the respondent was not
given in the letter declaring a dispute, appears to be an afterthought and
falls to be rejected.

[17] Counsel for the City also attempted to place reliance on the
judgment of this court in Rademan v Moqhaka Municipality & others
2012 (2) SA 387 (SCA) as a justification for the City‟s abrupt
disconnection of the water supply to the property. Such reliance is
however misplaced for two important reasons. First, the case dealt with
discontinuance of electricity supply to defaulters. Second, the case is
distinguishable on the facts in that in the Rademan case there was a
deliberate withholding of payment by the defaulters „who claimed to be
unhappy with the municipal services rendered by the municipality‟. (See
para 2 of the judgment).

[18] It follows therefore that there was in my view no justification for
the City to cut off the water supply to the property.

[19] Finally I turn to the question whether the spoliation order was the
appropriate remedy in the circumstances. I consider that it was. A
spoliation order is available where a person has been deprived of his or
her possession of movable or immovable property or his or her quasi-
possession of an incorporeal. A fundamental principle at issue here is that
nobody may take the law into their own hands. In order to preserve order
and peace in society the court will summarily grant an order for
restoration of the status quo where such deprivation has occurred and it
will do so without going into the merits of the dispute. The evidence in
the present matter shows that the respondent for the past 37 years
received an uninterrupted supply of water from the City at the time when
that service was summarily terminated. I have already alluded to the fact
that the respondent‟s rights to water were not merely personal rights
flowing from a contract but public law rights10 to receive water, which
exist independently of any contractual relationship the respondent had
with the City. The respondent‟s use of the water was an incident of
possession of the property. Clearly interference by the City with the
respondent‟s access to the water supply was akin to deprivation of
possession of property. There is therefore no reason in principle why a
water user who is deprived of a water service summarily by a water
service authority, without that authority complying with its procedural
formalities for dispute resolution laid down in its own by-laws, should not
be able to claim reconnection of the water supply by means of a
spoliation order. It therefore follows that the mandament van spolie was
available to the respondent and the courts below were correct in granting
the relief claimed by the respondent.
[20] Accordingly the appeal is dismissed with costs.

10 Joseph & others v City of Johannesburg & others 2010 (4) SA 55 (CC) para 34.

______________________

K K MTHIYANE

DEPUTY PRESIDENT

APPEARANCES

For Appellant:
EA de Villiers-Jansen
Instructed by:
Adriaans Attorneys, Cape Town
Honey Attorneys, Bloemfontein

For Respondent:

RS van Riet SC
Instructed by:
Hannes Pretorius Bock & Isaacs c/o Visagie
Vos, Cape Town
Bock Van Es Nikamanzi, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 March 2012

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

City of Cape Town v Strümpher (104/2011) [2012] ZASCA 54 (30 March 2012)

The Supreme Court of Appeal (SCA) dismissed an appeal against an order of
the Western Cape High Court, Cape Town. The appellant supplied water to a
property in the Strand owned by the respondent. The respondent declared a
dispute regarding certain charges and refused to pay them. As a result the
appellant cut off the water supply to the property.
The Strand Magistrates’ Court granted a spoliation order in terms of which the
appellant was directed to reconnect the water supply. This order was upheld
by the high court, which order was the subject of the appeal before the SCA.

The SCA held that the respondent’s right to water was not based solely on the
contract which he had concluded with the appellant, but was underpinned by
the constitutional and statutory obligations placed on the appellant in terms of
s 27 of the 1996 Constitution and s 3(1) of the Water Services Act 108 of
1997.

The SCA further found that the appellant overlooked its own dispute
resolution procedures as well as the requirement in s 4(3)(a) of the Water
Services Act ie ‘the limitation or discontinuation of water services must be fair
and equitable’ in its decision to cut off the water supply.

The Court also held that a spoliation order was an appropriate order, in the
circumstances, as the respondent was summarily deprived of his property, as
the respondent’s use of the water was an incident of possession of property.

In the result the appeal was dismissed with costs.