Here follow three very interesting documents – they are the legal documents that were used to get the power restored to a group of Cullinan disputers who had their power cut off. They can be used as templates for similar cases in other parts of the country….
NOTICE OF MOTION
IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF CULLINAN
HELD AT CULLINAN
CASE NUMBER.: _______
In the application between : -
CULLINAN RESIDENTS ASSOCIATION 1ST APPLICANT
PETER G DUVENAGE 2ND APPLICANT
V E MARE 3RD APPLICANT
PDJ DU TOIT 4TH APPLICANT
I V VILJOEN 5TH APPLICANT
N P GORDON 6TH APPLICANT
R DE LANCE-HOLMES 7TH APPLICANT
R DE LANCE-HOLMES 8TH APPLICANT
N DU KOKER 9TH APPLICANT
DAVID CYRILL THIRTLE WYCHE 10TH APPLICANT
STEVE KLOPPERS 11TH APPLICANT
RIAAN KLOPPERS 12TH APPLICANT
N J DYSON 13TH APPLICANT
C SONNEKUS 14TH APPLICANT
S PHITIDES 15TH APPLICANT
G D BOYLE 16TH APPLICANT
D J ALDERSON SMITH 17TH APPLICANT
C VAN DER MERWE 18TH APPLICANT
J BOSHOFF 19TH APPLICANT
S CHESTER BROWNE 20TH APPLICANT
C STANDER 21ST APPLICANT
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AND
NOKENG TSA TAEMANE 1ST RESPONDENT
THE MUNICIPAL MANAGER (MPO MOGALE) 2ND RESPONDENT
THE FINANCIAL MANAGER (LINDE AFRICA) 3RD RESPONDENT
DEPUTY CHIEF FINANCIAL MANAGER (MORRIS MALULEKA) 4TH RESPONDENT
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NOTICE OF MOTION : SPOLIATION APPLICATION
KINDLY TAKE NOTE THAT APPLICATION shall be made on 3RD APRIL 2009 at 14h00 at the above Honourable Court on behalf of the Applicants for a Spoliation Order with the following terms:
1. That matter be adjudicated as a matter of urgency.
2. That the period of notice provided for be shortened in terms of Rule 9 (14) to enable the Applicants to bring the Application to 15h00 on 3 April 2009.
3. That the time as provided for in Section 35 of The General Law Amendment Act, Act 62 of 1955 be shortened to 15h00 on 3 April 2009.
4. That the Respondents will have until 15h00 on 3 April 2009 to oppose the Application.
5. That the Applicants will have until 16h00 on 3 April 2009 to reply to the Opposing Affidavit.
6. That the 2nd to 21st APPLICANTS peaceful and undisturbed possession be restored on their respective properties and that the court direct that their electricity supply be restored.
7. That the Respondents to pay the cost of this application on the scale as between Attorney and Client.
8. Further and/or alternative relief.
KINDLY TAKE FURTHER NOTICE THAT an affidavit by DAVID CYRILL THIRTLE WYCHE shall be used in support of this application.
DATED AT BRONKHORSTSPRUIT ON THIS 3RD APRIL 2009
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___________________
(Sign.) C J Scheepers
Johann Scheepers Attorneys
The Old Parsonage
39 Kruger Street
BRONKHORSTSPRUIT
c/o Serfontein Viljoen & Swart
Kantoor 3B
Jennerstraat 24
Rayton
Ref.: CJ Scheepers/ph/SL1312
To: The Clerk of the Court
Magistrate’s Court
CULLINAN
To.: NOKENG TSA TAEMANE
Oakley street, Rayton
Received on __________ April 2009 at ____ h ____ _________________
Signature
To.: THE MUNICIPAL MANAGER (MPO MOGALE)
Oakley street, Rayton
Received on __________ April 2009 at ____ h ____ _________________
Signature
To.: THE FINANCIAL MANAGER (LINDE AFRICA)
Oakley street, Rayton
Received on __________ April 2009 at ____ h ____ _________________
Signature
To.: DEPUTY CHIEF FINANCIAL MANAGER
(MORRIS MALULEKA)
Oakley street, Rayton
Received on __________ April 2009 at ____ h ____ _________________
Signature
AFFIDAVIT:
IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF CULLINAN
HELD AT CULLINAN
CASE NUMBER.: _______
In the application between : -
CULLINAN RESIDENTS ASSOCIATION 1ST APPLICANT
PETER G DUVENAGE 2ND APPLICANT
V E MARE 3RD APPLICANT
PDJ DU TOIT 4TH APPLICANT
I V VILJOEN 5TH APPLICANT
N P GORDON 6TH APPLICANT
R DE LANCE-HOLMES 7TH APPLICANT
R DE LANCE-HOLMES 8TH APPLICANT
N DU KOKER 9TH APPLICANT
DAVID CYRILL THIRTLE WYCHE 10TH APPLICANT
STEVE KLOPPERS 11TH APPLICANT
RIAAN KLOPPERS 12TH APPLICANT
N J DYSON 13TH APPLICANT
C SONNEKUS 14TH APPLICANT
S PHITIDES 15TH APPLICANT
G D BOYLE 16TH APPLICANT
D J ALDERSON SMITH 17TH APPLICANT
C VAN DER MERWE 18TH APPLICANT
J BOSHOFF 19TH APPLICANT
S CHESTER BROWNE 20TH APPLICANT
C STANDER 21ST APPLICANT
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AND
NOKENG TSA TAEMANE 1ST RESPONDENT
THE MUNICIPAL MANAGER (MPO MOGALE) 2ND RESPONDENT
THE FINANCIAL MANAGER (LINDE AFRICA) 3RD RESPONDENT
DEPUTY CHIEF FINANCIAL MANAGER (MORRIS MALULEKA) 4TH RESPONDENT
___________________________________________________________________________
FOUNDING AFFIDAVIT
___________________________________________________________________________
I, the undersigned DAVID CYRILL THIRTLE WYCHE hereby declare as follows:
1.
I’m a adult male residing at 14 Golf crescent, Cullinan in the township of Cullinan. The facts herein later mentioned fall within my personal knowledge, unless otherwise, indicated and are true and correct.
2.
The Applicant is the Cullinan Residents Association, an association duly constituted in terms of a constitution established and approved on 26 June 2007 at Cullinan. I am the current chairperson of the Applicant. By virtue of my chairmanship I represent the members of the Applicant and am duly authorized to depose of this affidavit in terms of a power of attorney completed by all the members. The members comprise of the following persons:
2.1 Peter G Duvenage, 167 10th street, Cullinan, Erf 263;
2.2 V E Mare, 108 8th street, Erf 313;
2.3 PDJ Du Toit, 28 End street, Erf 580;
2.4 I V Viljoen, 149 9th street, Erf 291;
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2.5 N P Gordon, 38 Pine street, Erf 168;
2.6 R DE lance-Holmes, 18 Park street, Erf 125;
2.7 R De lance-Homes, 3 Hospital Road, Erf 65;
2.8 N Du Koker, 128 9th street, Erf 309;
2.9 DCT Wyche, 14 Golf Crescent, Erf 37;
2.10 C Kloppers, 89 Library Avenue, Erf 489;
2.11 R Kloppers, 104 8th Street, Erf 336;
2.12 N J Dyson, 23 Poplar Avenue, Erf 144;
2.13 C Sonnekus, 10 Hospital Road, Erf 60;
2.14 S Phitides, 120 9TH Street, Erf 295;
2.15 GD Boyle, 173 Koppie Drive, Erf 243;
2.16 D J Alderson Smith, 88 Library Avenue, Erf 497;
2.17 C Van Der Merwe, 36 Government Avenue, Erf 628;
2.18 J Boshoff, 127 9th Street, Erf 308;
2.19 S Chester Browne, 84 Library Avenue, Erf 496.
2.20 C Stander, 136 Oak Ave, Erf 513.
3.
The First Respondent is Nokeng Tsa Taemane Local Municipality, Oakley street, Rayton, instituted for the Nokeng Tsa Taemane Municipal area in terms of Section 12 of the Municipal Structures Act, 1998, Act 117 of 1998.
4.
The Second Respondent is the Municipal Manager, Mr Mpho Mogale, an adult male, employed by the Nokeng Tsa Taemane Local Municipality, Oakley street, Rayton..
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5.
The Third Respondent is the Financial Manager, Mr Linda Africa , an adult male, employed by Nokeng Tsa Taemane Local Municipality, Oakley street, Rayton.
6.
The Fourth Respondent is the Deputy Chief Financial Officer, Mr Morris Maluleka, an adult male, employed by Nokeng Tsa Taemane Local Municipality, Oakley street, Rayton.
7.
I submit that the Honourable Court has jurisdiction to adjudicate this matter.
8.
At all material times the Applicant and its members were in peaceful and undisturbed possession of their respective properties.
9.
The Applicant and its members have declared a dispute in term of Section 95(e) of the Local Government Municipal Systems Act 32 of 2000 and have had registered dispute letters hand delivered to the Respondents. See “Annexure B” attached hereto. In terms of Section 102(2) of Act 32 of 2000 the Respondents are prohibited from applying credit control until such time as the dispute has been resolved.
10.
As a result of this declaration of the dispute the Applicant and its members withheld a portion of property taxes due monthly to the Respondents and paid for all other services including
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electricity in full. However, the Respondents have applied credit control and allocated the money the Applicant and its members paid, inter alia, to property taxes.
11.
On 2nd April 2009 the Respondents ordered and effected the discontinuation of electricity supply to the Applicant’s members. I am advised that in doing so they contravened Section 102(2) of Act 32 of 2000.
12.
Section 22(5) of the Electricity Regulation Act, 2006 (Act 4 of 2006) clearly defines when electricity supplies may be discontinued.
“ Section 25(5) of the Electricity Regulation Act, 2006 (Act No. 4 of 2006) provides that:
A licensee may not reduce or terminate the supply of electricity to a customer, unless-
a. the customer is insolvent;
b. the customer has failed to honour, or refuses to enter into, an agreement for the supply of electricity; or
c. the customer has contravened the payment conditions of that licence.”
13.
I humbly submit that the Respondents have infringed the Applicant’s members of their undisturbed and peaceful possession of their properties and humbly request the Court to restore their undisturbed and peaceful possession.
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14.
Every moment that the Applicant’s members are without electricity, it increases the damages and discomfort suffered by the individual members. All the members are dependent on electricity for inter alia their fridges, freezers and access to hot water and cooking equipment. This are now denied to the Applicant’s members even though the Applicant declared a dispute which has not been resolved.
Signed at Bronkhorstspruit on this 2nd day of April 2009.
__________________
APPLICANT
Signed in my presence
a. After the Deponent declared that he knows and understand the contents of the declaration and that it is the truth;
b. That he has no objection in taking the prescribed oath;
c. That he consider the prescribed oath to be binding on his conscience.
_____________________
COMISSIONER OF OATHS
ORDER
IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF CULLINAN HELD AT CULLINAN
CASE NUMBER
In the application between : -
CULLINAN RESIDENTS ASSOCIATION 1ST APPLICANT
PETER G DUVENAGE 2ND APPLICANT
V E MARE 3RD APPLICANT
PDJ DU TOIT 4TH APPLICANT
I V VILJOEN 5TH APPLICANT
N P GORDON 6TH APPLICANT
R DE LANCE-HOLMES 7TH APPLICANT
R DE LANCE-HOLMES 8TH APPLICANT
N DU KOKER 9TH APPLICANT
DAVID CYRILL THIRTLE WYCHE 10TH APPLICANT
STEVE KLOPPERS 11TH APPLICANT
RIAAN KLOPPERS 12TH APPLICANT
N J DYSON 13TH APPLICANT
C SONNEKUS 14TH APPLICANT
S PHITIDES 15TH APPLICANT
G D BOYLE 16TH APPLICANT
D J ALDERSON SMITH 17TH APPLICANT
C VAN DER MERWE 18TH APPLICANT
J BOSHOFF 19TH APPLICANT
S CHESTER BROWNE 20TH APPLICANT
C STANDER 21ST APPLICANT
AND
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NOKENG TSA TAEMANE 1ST RESPONDENT
THE MUNICIPAL MANAGER (MPO MOGALE) 2ND RESPONDENT
THE FINANCIAL MANAGER (LINDE AFRICA) 3RD RESPONDENT
DEPUTY CHIEF FINANCIAL MANAGER (MORRIS MALULEKA) 4TH RESPONDENT
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COURT ORDER
After having heard the attorney of the Applicants the court directs as follows:
1. That this is a matter of urgency.
2. That the 2nd to 21st APPLICANT’S peaceful and undisturbed possession be restored on their respective properties and that the Respondents are directed to restore their electricity supply.
3. That the Respondents to pay the cost of this application on the scale as between Attorney and Client.
4. That the periods for Notice and the hearing of the Application be reduced as requested in the Notice of Motion.
5. That the Respondents are called upon to submit reasons on 3 April 2009 at 15h00 or as soon thereafter as the matter may be heard why this must not be made a final order.
6. That the Applicants may reply to the Opposing Affidavit by not later than 16h00 on 3 April 2009.
Signed at CULLINAN on this 3rd day of APRIL 2009.
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MAGISTRATE