Pretoria City Council v Walker

• Jurisdiction: South Africa
• Judge: Langa DP, Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 17 February 1998
• Citation: 1998 (2) SA 363 (CC)
• Docket Number: CCT 8/97
• Hearing Date: 19 August 1997
• Counsel: WH Trengove (with him FH Terblanche and JP Vorster) for the applicant. E Bertelsman (with him JS Stone) for the respondent. GJ Marcus (with him AE Bham) for the amicus curiae (the National Electricity Regulator). B
• Court: Constitutional Court

Langa DP:

Factual background

[1] The applicant is the City Council of Pretoria (the council). It sued the respondent, Mr Walker, in the Pretoria H Magistrate's Court for payment of an amount of R4 753,84, [1] being arrear charges for services rendered by the council during the period July 1995 to 23 April 1996. The respondent did not deny that he owed the amount claimed. He contended instead that he was entitled to withhold payment by reason of the fact that the council's I conduct, which I shall elaborate upon in due course, [2] constituted a violation of his constitutional right to equality as

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enshrined in s 8 of the interim Constitution. [3] He also contended that the council was in breach of s 178(2) of the A interim Constitution. The grounds relied upon by the respondent therefore raised issues of constitutionality.

[2] The respondent's defence was not upheld by the magistrate and he was ordered to pay the amount claimed B as well as costs. On appeal, the Transvaal High Court [4] (the High Court) set aside the magistrate's order and substituted for it an order of absolution from the instance with costs. [5] The council applied for leave to appeal to this Court against the High Court's judgment and order.

[3] Pursuant to directions issued by the President in terms of the Rules of the Constitutional Court, the application C for leave to appeal as well as the merits of the appeal were argued together. We have accordingly had the benefit of full argument on both the merits and ancillary issues which were raised from the parties as well as counsel who appeared for the National Electricity Regulator (NER), which was admitted as amicus curiae. D

[4] The council was established by the consolidation, on 8 December 1994, of a number of municipalities into one. These included, among others, the two black townships of Atteridgeville and Mamelodi and the formerly E white municipality which was known as the Pretoria City Council. It will be convenient to refer to this last area as old Pretoria. The respondent is a resident of Constantia Park, a suburb in old Pretoria. It is common knowledge that the population of Mamelodi and Atteridgeville is black and that of old Pretoria overwhelmingly white and the case was argued on that basis. F

[5] The facts which provide the background for the issues raised in this matter may be summarised as follows: electricity and water charges in the council's area were levied on a differential basis. The residents of old Pretoria, including the respondent, were levied on a tariff based on actual consumption measured by means of meters G installed on each property. This had been the position long before the amalgamation. Residents of Mamelodi and Atteridgeville, in the absence of meters, were levied on the basis of a uniform rate for every household. This system, generally referred to as a flat rate, also predated the amalgamation.

[6] The respondent's objections to the council's conduct were based on the following grounds: (a) the flat rate in H Mamelodi and Atteridgeville was lower than the metered rate and this therefore meant that the residents of old Pretoria subsidised those of the two townships; (b) the differentiation in the tariffs continued even after meters had been installed on some properties in Mamelodi and Atteridgeville; (c) only residents of old Pretoria were singled out by the council for legal action I

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to recover arrears whilst a policy of non-enforcement was being followed in respect of Mamelodi and A Atteridgeville; and (d) the imposition of differential rates was a contravention of s 178(2) of the interim Constitution. The respondent also complained that the council did not take the residents of old Pretoria into its B confidence when the target dates for the implementation of a consumption-based tariff were not met. Instead, misleading information was given to old Pretoria residents, leaving them under the impression that the metered rate was being uniformly applied at a time when it was not. With regard to the objections in (a), (b) and (c), the respondent's complaint was that the council's conduct amounted to unfair discrimination and was therefore a C breach of s 8 of the interim Constitution. In its judgment on appeal, the High Court held that the actions of the council summarised in (a) to (c) above amounted to discrimination based on race; that the council had not, under s 8(4) of the interim Constitution, established that such discrimination was not unfair; and that accordingly such D actions were unconstitutional as being inconsistent with s 8(2) of the interim Constitution. The High Court also held that the council's conduct described above constituted a breach of s 178(2) of the interim Constitution.

Preliminary matters

(a)

The Rule 18 certificate E

[7] Appeals to this Court are governed by Rules 18 and 19 of the Rules of the Constitutional Court. [6] In response to the council's application for a certificate in terms of Rule 18, the High Court refused to furnish a F positive certificate save to confirm that the evidence which had been led was sufficient to enable this Court to deal with the issue without referring it back to the High Court. For the rest, it was held that there were no issues of substance which were of a constitutional nature and which merited the attention of this Court and that there was no reasonable

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prospect that the Court would grant leave to the council to appeal, or that it would reverse the judgment or the A order given in the High Court.

[8] It had been argued on behalf of the council that the exercise of a value judgment by the High Court in deciding the question whether or not the discrimination was unfair was a constitutional issue which required the B attention of the Constitutional Court. Le Roux J, who delivered the High Court's judgment on the application, rejected the council's argument. He stated: [7]

'Wat die onbillikheid van die diskriminasie aanbetref, is dit 'n blote toepassing van die feitelike agtergrond wat gemeensaak tussen die partye is. Dit is 'n situasie wat elke dag in hierdie Howe voorkom. Dit is niks buitengewoons nie. C . . . Dit is na my mening voor die hand liggend dat die toepassing van feite op 'n besondere saak voor die Hof, ook 'n feitelike aangeleentheid is en nie 'n saak is wat gereserveer behoort te word vir die Konstitusionele Hof nie.'

With regard to the submission that the issue of whether the order of absolution from the instance in this matter was a constitutional issue, he had this to say: D

'Wat betref die kwessie van die regsmiddel wat hierdie Hof toegepas het nadat hy geoordeel het dat daar onbillike diskriminasie was teenoor die respondente, is ek ook van mening dat dit nie 'n buitengewone remedi (sic) is nie. Dit kom by baie sulke gevalle voor. 'n Mens kan maar net dink aan die geval van twee persone wat oor 'n saak wat teen die openbare belang is, in 'n hof litigeer en 'n eis instel, wat 'n hof weier om enigsins te oorweeg, die sogenaamde par E delictum-geval. Daar is ook talle ander voorbeelde waar die een party, hoewel hy op die oog af 'n goeie eis het nie met skoon hande hof toe kom nie. Dan sal 'n hof hom nie tegemoet kom nie. Hierdie is na my mening slegs 'n spesie van daardie genus van gevalle waar die feite sodanig is dat 'n hof nie die eiser, hoewel hy op die oog af 'n goeie eis het, F tegemoet sal kom totdat hy nie sy huis in orde gebring het nie. Die bevel van absolusie van die instansie beteken nie dat die eiser nou van enige regsmiddel ontneem word nie. Dit is nie 'n permanente ontneming nie, dit is slegs tydelik totdat hy sy huis in orde gebring het. Gevolglik gaan hierdie saak oor koste en oor prestige. Op hierdie grondslag kan ek nie insien dat dit 'n saak van groot belang is vir die toekoms nie. Dit is slegs tydelik van aard. Dit is ook nie 'n buitengewone G regsmiddel nie. Dit stel die party in staat om weer sy regte af te dwing indien sy posisie in die reine gebring is en hy nie langer die Grondwet verbreek nie, en aangesien dit slegs 'n kwessie van koste is, is ek van mening dat dit nie 'n saak is wat van belang is om gereserveer te word vir die Konstitusionele Hof nie.' [8]

[9] The High Court had been required to determine whether the conduct of the council amounted to unfair H discrimination and, if it did, the appropriate relief or remedy had to be decided. The exercise involves the elaboration of concepts such as 'equality' and 'unfair discrimination'. The High Court's assessment of what constitutes a breach of s 8 is a matter which is constitutional in nature. Section 98(2) of the interim Constitution states: I

'The Constitutional Court shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpretation, protection and

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enforcement of the provisions of this Constitution, including - A

(a)

any alleged violation or threatened violation of any fundamental right entrenched in chap 3.'

[10] In interpreting and enforcing the Constitution in this case, the Court has to decide whether there has been unfair discrimination. If that is established, the next step is to determine what the appropriate order is in the B circumstances of the case. [9] Unfair discrimination, and the issue of an appropriate order when s 8 of the interim Constitution has been breached, are constitutional issues in respect of which this Court has final jurisdiction. C However, the existence of a constitutional issue is not the sole determinant of which matters should be considered by this Court. Rule 18 requires in addition that the issue must be one of substance.

[11] Whether or not a constitutional issue is one of substance will depend on the facts of the particular case. The present matter is based on factual issues but it also...