Administrator, Cape, and Another v Ikapa Town Council

• Jurisdiction: South Africa
• Judge: Joubert JA, Hoexter JA, Smalberger JA, Kumleben JA, Nienaber AJA
• Judgment Date: 29 March 1990
• Citation: 1990 (2) SA 882 (A)
• Hearing Date: 16 February 1990
• Court: Appellate Division

Joubert JA:

The respondent, Ikapa Town Council ('Ikapa'), formerly known as the Cape Town Town Committee, is a local authority established in C terms of the Black Local Authorities Act 102 of 1982 ('the 1982 Act'). Its area of jurisdiction comprises the Black residential areas of Langa, Guguletu, Nyanga and Khayelitsha in the Cape Peninsula. Section 2(2)(b) of the 1982 Act empowers the Administrator of the Cape Province ('the Administrator') after consultation with the Minister of Constitutional Development and Planning ('the Minister') inter alia to alter the D demarcation of the area of jurisdiction of a local authority, subject to prior consultation with the local authority concerned. In exercising this power the Administrator is obliged to comply with the provisions of ss 7F and 7G of the Promotion of Local Government Affairs Act 91 of 1983 ('the 1983 Act'). Moreover, whenever the Administrator exercises this E power he must do so in accordance with the general directives of the Minister (s 17A(1) of the 1983 Act). In the instant matter the Minister's general directives prescribing the criteria, norms and standards to be considered by the Administrator in exercising his aforementioned power, were published on 24 May 1985 by Government Notice F R1111 in Gazette 9751 (annexure RMN 7, record vol 2 pp 84 - 5). The Administrator is the first appellant (the first respondent in the Court a quo).

The Demarcation Board of Local Government Areas is a body established in terms of s 7A of the 1983 Act. The second appellant (the third respondent in the Court a quo) is the chairman of the Demarcation Board for Local Government. For the sake of convenience I shall refer to the G latter as 'the Demarcation Board'.

On 27 April 1988 the Administrator in terms of s 7F(1)(a) of the 1983 Act requested the Demarcation Board in writing to advise him regarding the desirability or otherwise of:

(i)

excising from Ikapa's area of jurisdiction that portion of H Khayelitsha then falling within such area, and

(ii)

demarcating portion of the excised area, together with other parts of Khayelitsha, as the area of jurisdiction of a proposed new local authority.

The Administrator stated that from time to time he had received requests from leaders in the Khayelitsha area to have a separate local authority I for the area.

Moreover, in two annexures to his letter the Administrator furnished certain information in pursuance of the general directives in Government Notice R1111. The first annexure concerned the establishment of the proposed new local authority. It was suggested inter alia that the latter would not possess the financial viability to provide even the J basic services

Joubert JA

A to its inhabitants. The necessary infrastructure, however, existed and with the necessary financial support from the central Government certain listed services could be rendered. The second annexure dealt with the proposed area to be excised from Ikapa's area of jurisdiction. A main sewage, water and road network had already been provided for the area. Provision had been made for 44 industrial sites. Attention was directed B to the fact that the area was currently overpopulated. The following statistical information was furnished:

Residents (estimated)	155 000
Registered voters (estimated)	52 000
Residential premises	20 839
Dwellings C	5 200
Structures and tents	23 686

It was also stressed that the new local authority would not be financially viable within the foreseeable future. The anticipated income from rental and expenditure was approximately R5,3 m while the estimated D expenditure would be R14 m. It was essential therefore that the central Government had to render financial support until additional sources of revenue could be found (annexure RMN 3, record vol 1 pp 54 - 64).

The secretary of the Demarcation Board thereupon took all formal steps necessary for the holding of an enquiry as prescribed by the provisions E of s 7G of the 1983 Act. Ikapa was given written notice on 28 April 1988 of the enquiry to be held on 1 June 1988 at Bellville for the purpose of hearing further evidence and representations from persons who lodged written objections and representations (annexure RMN 4, record vol 1 pp 65 - 70).

The enquiry by the Demarcation Board was held on 1 June 1988 and F lasted one day. Attorney Van Niekerk appeared for Mali Hoza and his Lingelethu Committee on whose behalf he handed in written submissions (record vol 7 pp 394 - 402), with a supporting memorandum by Dr Anthea J Jeffery and Professor S B Bekker from the Agency for Social and Legal Research CC (record vol 7 pp 403 - 12). It was pointed out that Khayelitsha was neither contiguous with nor in close proximity to the G other areas (Langa, Guguletu and Nyanga) under the jurisdiction of Ikapa. Hoza and his Committee supported the proposed excision of Khayelitsha and the formation of a new local authority. They claimed to have the support of approximately 80% of the residents of certain areas in Khayelitsha.

H At the enquiry Ikapa was represented by its counsel, Mr Dison and Mr Gamble. A very large number of documents were handed in on behalf of Ikapa, viz:

(1)

written submissions and objections, dated 30 May 1988 (annexure RMN 6A, record vol 1 pp 73 - 83, also record vol 7 pp 413 - 23);

(2)

an extract from the Cruywagen Report of 1984 (record vol 2 pp I 86 - 101);

(3)

portions from the Government's White Paper on Urbanisation of 1986 (record vol 2 pp 102 - 14);

(4)

documents relating to an enquiry held on 7 November 1987 by the demarcation Board at the request of the Administrator in J connection with the demarcation of areas 3 and 4 of Town 1 of

Joubert JA

A Khayelitsha (known as site B) and the area known as site C (record vol 2 pp 115 - 40) (I digress here to point out that the decision taken by the Administrator pursuant to this enquiry was taken on review by Ikapa and the Administrator agreed to the setting aside of his decision);

(5)

documents...