Business owner wins case after Eastern Cape municipality confused solar use with meter tampering

A Komga business has won a court order that its electricity be reconnected after the Great Kei Municipality had flagged it for disconnection due to a change in its purchase patterns of prepaid electricity.

Judge Justin Laing also ruled in the Eastern Cape Division of the High Court in Makhanda that the way credit control policies were applied in the municipality, and specifically that it made provision for immediate disconnection without notice, was unconstitutional.

On 20 February, the Great Kei Municipality disconnected the electricity at the building owned by Trendigraph CC, housing a butchery and a liquor store, without prior notice. 

The reason given was that there was no record of any electricity purchases for two months (December 2024 and January 2025). 

According to the judgment, the business owner had explained to the court that he had paid R10,000 for bulk purchases of electricity in September 2024 and October 2024, respectively, but its consumption had been reduced after the installation of solar panels.

At the time of disconnection, prepaid units were available. Lawyers for the business insisted that nobody had tampered with the meter. The court did find that the owner had illegally reconnected his supply, mistakenly, but only after a court order had been granted. 

The Credit Control and Debt Collection Policy of the Great Kei Municipality makes provision for electricity to be disconnected without notice in some circumstances. But the business owner asked the court to declare this unconstitutional.

The municipality stated in its court papers that electricity meter use was monitored as part of a programme to minimise losses.

Disconnection blitz

In papers before court, the municipality explained that low or zero consumption indicated possible theft, prompting measures ranging from disconnection to the laying of criminal charges. The municipal council had previously resolved to curb a “scourge of meter tampering” in the municipality and had “declared war” on these practices. As a result, a disconnection blitz of all offenders was to take place on 27 January.

According to the Auditor-General’s report on the municipality filed in 2024, the local government suffered huge losses due to electricity meter tampering and theft. The municipality incurred material losses of R3.8-million (down from the 2021/2022 financial year when this was at R4.8-million), which represented 33% (2021-22: 39%) of total electricity purchased. The losses were due to dilapidated electrical infrastructure and illegal tampering by consumers.

Trendigraph CC was among the businesses flagged in this process and, as a result, had its electricity supply disconnected. At the time, it still had 2,045 prepaid units available.

Lawyers for the municipality argued that in the event of tampering with an electricity meter, its credit control and debt collection policy and the relevant by-law allowed them to disconnect the electricity supply without notice, and only an authorised official could restore the service.

‘No record of electricity purchases’

According to the judgment, Trendigraph’s lawyers pointed out that the reason given by municipal officials for the disconnection was that there had been no record of any electricity purchases during the period from December 2024 to January 2025. No mention had been made of tampering with the electricity meter.

Trendigraph had a solar system at the premises from January 2024 and could switch to the municipal power supply when necessary. During the period of February to December 2024, this system generated 70,395 kW of power. A report prepared by a solar technician and attached to the papers confirmed that solar was used to power a butchery and a liquor store that operated on the premises; it explained why no extra electricity was needed. 

The premises’ main electrical box was located outside the building and was in a bad state. It was not properly covered, resulting in its exposure to the elements and to the public.

The council by-laws define what constitutes unauthorised consumption of services, connections or reconnections, tampering or theft of meter, equipment or reticulation network and fraudulent activity in connection with the supply of services, and must provide proof that such activity constitutes an offence. The by-laws make provision that in these cases, electricity can be terminated without notice.

“This was amplified in the municipality’s answering papers to the effect that the decision was based on an assessment of Trendigraph’s ‘purchase trends’ …There has never been any allegation to the effect that the applicant had been in arrears regarding payments for rates and service charges,” Judge Laing found.

‘Little evidence’

He further explained that from the municipality’s papers, the real reason for the decision was the belief or suspicion that there had been tampering with the electricity supply or the meter itself. There was, however, little if any evidence to support this.

“Using the [municipal] policy definition of ‘tampering’, it cannot be said that the municipality presented any proof of Trendigraph’s interference with the supply, seals, or metering equipment, resulting in damage to the municipal property and Trendigraph’s evasion of payment for services.

“The absence of any record of electricity purchases, moreover, can hardly be deemed as evidence of tampering. There could have been a perfectly acceptable reason for this, such as a faulty meter or faulty monitoring software — or a switch to solar energy, as was the case here,” Judge Laing said.

“No explanation was given for why low or zero consumption was a reliable indicator of tampering, considering the recent history of notoriously unreliable electricity distribution in the country and the private sector’s increasing dependence on solar energy as a reaction thereto. No explanation was given for how the municipality had implemented the monitoring system and how it had been applied in relation to the [business],” he continued.

Municipal policy ‘partly unconstitutional’

Judge Laing said that in the past, the Constitutional Court had made it clear that a pre-termination notice was required, even where there was no contractual relationship between a local government service provider and the end user.

The Great Kei Municipality’s credit control and debt collection policy permits the immediate disconnection of supply where, for instance, tampering has been detected or ‘where prima facie evidence exists’ of tampering. 

But Judge Laing pointed out that there had to be a factual basis for such a suspicion. 

“None can be said to have existed in the present matter,” he said.

He ordered that there was no factual basis for the municipal decision to disconnect Trendigraph’s electricity without prior notice. 

He further ruled that part of the municipality’s credit control and debt collection policy was unconstitutional. 

“Whereas the policy is badly drafted, potentially giving rise to ambiguity and confusion, the provisions in question appear to permit the municipality to disconnect a consumer’s supply without notice in the event of non-payment of service charges,” he said, explaining that the implementation of the policy was an infringement of the Promotion of Administrative Justice Act and amounted to the infringement of a consumer’s right to just administrative action. DM