“I have a serious issue with the municipality, a cable was stolen, which cable is the main cable providing my house with electricity. I have raised the issue with the municipality on various occasions, just to be informed that the Municipality does not have the funds to replace the stolen cable. I was also informed by the municipal official, that as soon as funds become available, the issue will be directed to the municipality’s procurement office, but they cannot give me a date on which the cable will be fixed. I have been without electricity for 4 days now. What should I do?”

In terms of the Constitution of South Africa, read with the Municipal Systems Act, the Municipality has a duty to ensure that the infrastructure, which falls within its area of governance is maintained.

This includes the duty to fix any damages infrastructure, whether that damage was caused by for example theft or by way of a natural disaster such as a storm.

More often than not, the Municipalities, especially those Municipalities whose administration is far from desirable, attempts to pass the buck to the consumers citing issues such as a lack of funds or issues with the procurement of supplies.

In the scenario indicated herein above, the client has two options, either force the municipality to do their constitutional duty by way of a Mandamus application to the High Court or if the costs in repairing the cable is not too expensive, by having it repaired and to sue the municipality for the costs involved in the repair.

In this article, I want to deal with the latter, as the costs involved with the Mandamus application normally does not justify the costs of the litigation in the High Court.

This is where the legal principle of negotiorum gestio assists the consumer in claiming back any money spend to fix the issues.

Negotiorum gestio is the voluntary management by someone (the gestor) of the affairs of another (the dominus) without the consent or knowledge of the latter.

According of the writers of Amler’s Precedents of Pleadings, virtually any act or activity that amounts to the conduct, administration or management of another’s affairs may constitute negotiorum gestio.

 So, what is required should you wish to claim from the Municipality?

You will have to allege and proof the following:

1. The affairs managed by the gestor must have been those of another;
2. The dominus must have been ignorant of the fact that its affairs were being managed;

   (It must be noted that a dominus who is aware of the management does nothing about it is regarded as having authorised it tacitly)

3. The intention to manage the affairs of another and to claim reimbursement for expenses necessarily or usefully incurred by the gestor;
4. The management of the dominus’s affairs should have been done conducted in a reasonable way.

You are thus, according to this legal principle entitled to claim;

1. To be reimbursed for the necessary and useful expenses;
2. Damage for loss interest or income;
3. To be released from obligations incurred during the gestio;
4. To exercise a lien over the property of the dominus in the gesor’s possession, pending satisfaction of the claim.

So, to answer the question what should you do, it is advisable that you firstly obtain a quotation from a certified electrician who will be able to repair the stolen cable. Whereafter you must submit same to the municipality and inform the municipality that should they fail to repair the stolen cable, within a certain period of time, you as customer will proceed with the repairs and then call upon the municipality to repay any money spend by you to administer its duties.

Reference List:

• LexisNexis – Amler’s Precedents of Pleadings, Ninth Edition, page 275 – 276