The applicants were occupiers of Windsor Hotel premises (erven 117 and 118, Sutherland Street, Mthatha) since 2023, together with other occupiers and small businesses. The property was owned by the third respondent (Eastern Cape Development Corporation), which had an agreement with the first respondent (OR Tambo District Municipality) for municipal services. By March 2025, the third respondent owed the Municipality R48,742,761.62 in arrears. On 8 May 2025, the Municipality terminated water supply to the premises due to the debt. The applicants, who were indigent persons living on child support grants and odd jobs with school-going children, alleged they received no prior notice and were not afforded an opportunity to make representations. The termination resulted in unhygienic conditions, clogged ablution facilities with unbearable stench, health risks, and financial distress. The Municipality claimed it had served notice in December 2024 (when debt was R2,067,573.57) by affixing notices at the premises and reading it aloud, and again on 24 March 2025 at the third respondent's business address. The applicants denied receiving the December 2024 notice and challenged the termination as unlawful and unconstitutional.
1. Leave granted to bring application as one of urgency; rules regarding forms and service dispensed with. 2. Rule nisi issued returnable 24 June 2025 calling on respondents to show cause why: 2.1 The termination should not be declared unconstitutional and unlawful; 2.2 The termination should not be reviewed and set aside; 2.3 Water supply should not be reconnected forthwith; 2.4 Respondents should not be interdicted from terminating water supply in unlawful/unconstitutional manner; 2.5 Failure to exhaust internal remedies should not be condoned; 2.6 Respondents should not pay costs jointly and severally, including costs of two counsel. 3. Paragraphs 2.3 and 2.4 to operate as interim order/mandamus pending finalization.
The binding legal principles are: (1) Residents/occupiers of premises supplied with municipal services have standing to challenge termination decisions that affect their constitutional rights, notwithstanding absence of contractual privity with the municipality. (2) Before terminating water supply to premises, municipalities must provide adequate notice not only to the account holder but also to occupiers who will be directly affected, and afford them an opportunity to make representations. (3) Service of termination notices must be effected in a manner that reasonably ensures actual notice reaches those affected, with sensitivity to their circumstances. (4) The right to procedural fairness under administrative law requires pre-termination notice and opportunity for representations even where the debt is owed by a third party. (5) Where termination of water supply results in conditions that violate dignity, health, and other fundamental rights, and the affected persons are indigent, irreparable harm is established for purposes of interim interdicts. (6) In assessing urgency, courts should not penalize litigants for first attempting to resolve disputes before approaching court. (7) Municipalities' rights to implement credit control policies must be exercised consistently with constitutional obligations to respect the fundamental rights of affected persons.
Rusi J made several non-binding observations: (1) The Court noted approvingly the approach in Barker v Nangu regarding the need for municipalities to attend to their duties "with insight and a sense of humanity." (2) The judgment emphasized that "form should not be allowed to trump substance" when assessing urgency. (3) The Court observed that the debt allegedly increased dramatically from approximately R2 million in December 2024 to over R48 million by March 2025, though did not make findings on this. (4) Rusi J noted that from the termination notice, the Municipality appeared amenable to payment arrangements, suggesting continued supply pending such arrangements would be reasonable. (5) The Court posed rhetorical questions: "will the skies fall if, purely in the interim, the first respondent continues to provide an appropriate supply of water to the premises pending the finalization of the intended review? Is it not just, instead, to allow the applicants in the interim, to live a life that is as near as possible to dignified pending the finalization of the review?" (6) The judgment clarified: "I should not be taken as saying that the first respondent has no right to implement its Credit Control and Debt Collection Policy. It has every right to do so. I place emphasis, instead, on the duty of the first respondent to respect the rights of the applicants by following a fair procedure."
This case affirms important principles regarding municipalities' obligations when terminating essential services. It emphasizes that: (1) lack of contractual privity does not prevent residents from asserting constitutional rights when their dignity, health, and access to water are affected; (2) municipalities must follow fair procedures, including proper notice to actual occupiers (not just the account holder) before terminating water supply; (3) pre-termination notice and opportunity for representations cannot be denied even where the debt is owed by a different entity; (4) service of notices must be done with sensitivity and reasonableness to ensure affected parties actually receive notice; (5) the rights to dignity, access to water, a safe environment, and children's education are interconnected and must be protected in credit control enforcement; (6) indigent occupiers cannot be expected to pay debts of millions owed by property owners; and (7) courts will intervene urgently where fundamental rights are being violated by administrative action, even pending review proceedings. The judgment applies Vaal River Development principles to water services and reinforces that municipalities must exercise their debt collection powers with insight and humanity.