Port Elizabeth Municipality v Prut NO and Another

• Jurisdiction: South Africa
• Judgment Date: 15 December 1995
• Citation: 1996 (3) SA 533 (SE)

Port Elizabeth Municipality v Prut NO and Another
1996 (3) SA 533 (SE)

1996 (3) SA p533

Citation	1996 (3) SA 533 (SE)
Court	South Eastern Cape Local Division
Judge	Liebenberg J
Heard	June 29, 1995
Judgment	December 15, 1995
Counsel	R G Buchanan SC (with him P C Benningfield) for the applicant.; No appearance for the respondents.

Flynote : Sleutelwoorde B

Constitutional practice — Courts — Magistrates' courts — Jurisdiction — Magistrate's court competent to adjudicate upon issue concerning infringement of constitutional C rights where validity of statutory enactment or provision thereof not in issue.

Constitutional practice — Parties — Party electing to institute proceedings in magistrate's court not to approach Supreme Court for declaratory order on issues D to be decided in magistrate's court while matter still pending there.

Headnote : Kopnota

The applicant instituted action against the respondents in a magistrate's court claiming arrear rates from a trust administered by the respondents. The applicant applied for summary judgment, whereupon the respondents raised the defence that the applicant, by failing to write off arrear rates owed to it by the trust as it had done for the residents of the E erstwhile black local authority areas, had violated the trust's fundamental rights in terms of chap 3 of the Constitution of the Republic of South Africa Act 200 of 1993 by unfairly discriminating against it contrary to s 8(2) of the Constitution. The magistrate refused summary judgment and the respondents were given leave to defend the action. The applicant then brought an application in a Local Division for an order declaring, inter alia, that its actions in treating amounts owed by ratepayers such as the respondents in respect F of arrear rates levied in terms of the applicable municipal ordinance differently to its treatment of amounts owed in respect of arrear service charges levied on residents of the black local authority areas did not constitute unfair discrimination within the meaning of s 8(2) of the Constitution.

Held, that granting the relief asked for by the applicant would in effect decide the issues which the magistrate would have to decide in the action instituted by the applicant, and that the relief should not be granted if the magistrate was competent to decide the issues G involved: the applicant had elected the forum in which it had instituted the action and could not by way of the instant application obtain a decision by a higher Court on issues to be decided in the elected forum while the matter was still pending there. (At 535B-D/E.)

Held, further, as to whether the magistrate's court was competent to adjudicate upon the question whether the actions of the applicant constituted an infringement of the H fundamental right of the trust not to be unfairly discriminated against as provided for in s 8(2) of the Constitution, that s 103(2) of the Constitution did not, as argued on behalf of the applicant, oust the jurisdiction of the magistrate's court: s 103(2) provided for the situation where it was alleged that any statutory enactment or provision thereof was invalid on the ground of inconsistency with a provision of the Constitution, and the instant case did not concern the validity of a statutory enactment or provision thereof. (At 535F-G/H.)

I Held, further, that the magistrate's court was, in the light of what was held in Qozeleni v Minister of Law and Order and Another 1994 (3) SA 625 (E) at 636I-638C, competent to adjudicate upon the issue raised by the defence which the respond-ents intended to raise in their plea. (At 537A-B.)

Held, further, that the applicant should proceed to finality with the action it had instituted in the magistrate's court and if aggrieved by any decision of the magistrate pursue the normal remedies of appeal or review at its disposal. (At 537B-C.) Application J dismissed.

1996 (3) SA p534

Cases Considered

Annotations

Reported cases

A The following case was cited in the judgment of the Court:

Qozeleni v Minister of Law and Order and Another 1994 (3) SA 625 (E).

Statutes Considered

Statutes

The following statute was considered by the Court:

The Constitution of the Republic of South Africa Act 200 of 1993, ss 8(2) and 103(2): see Juta's Statutes of South Africa 1995 vol 5 at 1 - 211 and 1 - 227.

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