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[2011] ZASCA 212
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White v City of Cape Town (918/10) [2011] ZASCA 212 (29 November 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 918/10
DESMOND
WHITE
…............................................................................
Appellant
and
CITY
OF CAPE TOWN
…..................................................................
Respondent
Neutral
citation:
White v City of Cape Town
(918/10)
[2011] ZASCA 212
(29 November 2011)
BENCH:
PONNAN, SNYDERS, LEACH, MAJIEDT JJA and PETSE AJA
HEARD: 10 NOVEMBER 2011
DELIVERED: 29 NOVEMBER 2011
SUMMARY:
Appeal - s 21A of the Supreme Court Act – power of court to
dismiss appeal where judgment or order sought will have
no practical
effect or result.
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from
:
Western Cape High Court (Cape
Town)
(Thring J
sitting as court of first instance).
The appeal
is struck off the roll with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA (SNYDERS, LEACH, MAJIEDT JJA and PETSE AJA concurring):
[1] This case is about water, or more accurately, about a water
tariff policy adopted by the respondent, the City of Cape Town
(the
City), which the appellant, Mr Desmond White, a resident of a block
of flats in Seapoint, Cape Town, alleges unfairly discriminates
against flat dwellers such as himself. By the time the matter served
before this court though, one suspected, to borrow loosely
from an
idiom, that the water may already have passed under the bridge. And
so, after heads of argument on the merits of the appeal
had been
filed, this court addressed a directive to the parties calling for
further heads and informing them that at the outset
of the hearing of
the appeal they would be required to address argument on the
preliminary question of whether the appeal and any
order made thereon
would within the meaning of s 21A have any practical effect or
result.
[2] Section 21(A)(1) of the Supreme Court Act 59 of 1959 provides:
'When at the hearing of any civil appeal to the
Appellate Division or any Provincial or Local Division of the Supreme
Court the
issues are of such a nature that the judgment or order
sought will have no practical effect or result, the appeal may be
dismissed
on this ground alone.'
The primary question therefore, one to which I now turn, was whether
the judgment sought in this appeal would have any practical
effect or
result. It arises against the backdrop of the following facts.
[3] During June 2009 Mr White applied to the Western Cape High Court
for the following declaratory orders:
(a) that the City has contravened ss 74(3), 74(1)(a) and 74(1)(b) of
the Local Government: Municipal Systems Act 32 of 2000 ('the
Systems
Act') in that it allegedly charges residents of flats and domestic
cluster complexes 'considerably more' for water than
residents of
single dwellings (paragraph 1 of the notice of motion);
(b) that the City has imposed on residents in flats and domestic
cluster complexes 'an unfair and discriminatory' tariff for solid
waste removals since there is a minimum charge based on one third of
the residential units, irrespective of whether the City's
services
for removal of the bins is used and irrespective of the number of
bins that are used (paragraph 5 of the notice of motion);
and
(c) that those sections of the City's Tariff Policy relating to water
and sanitation costs and solid waste removal costs be declared
'null
and void and of no force and effect' (paragraph 7 of the notice of
motion).
[4] The thrust of the appellant's case in the high court was that the
City charged flat dwellers, such as himself, more than home
dwellers
for water, which, so he suggested, was unlawful. The appellant
accordingly contended that by having different water tariffs
for flat
dwellers to that of house dwellers, the City's 2009/2010 tariff
policy which was approved by the City on 27 May 2009 contravened
the
prohibition against unfair discrimination contained in
s 74
of the
Local Government: Municipal Systems Act 32 of 2000
. In the court
below the appellant also challenged the City's differential tariff
for refuse removal. But that is not on appeal
before us.
[5] Thring J, who heard the application in the high court, dismissed
it on 31 May 2010 with costs, but granted leave to the appellant
to
appeal to this court.
[6] The policy sought to be impugned in this matter was to have been
operative only until 30 June 2010. In an answering affidavit
filed on
behalf of the City it is stated:
‘
The impugned policy will be in
operation only until 30 June 2010. Accordingly, by the time this
matter is likely to be heard, the
relief sought by the plaintiff will
be moot.'
The point was reiterated somewhat more forcefully on behalf of the
City in the court below in opposition to the application for
leave to
appeal in these terms: .... ‘
by the time the
appeal is determined, the issue would be academic. The application
relates only to the 2009/2010 budget and the
tariff policy will be in
operation only until 30 June 2010. An appeal which will have no
practical effect may be dismissed for
that reason alone in terms of s
21A(1) of the Supreme Court Act.'
Having been forewarned by the City it could thus hardly have come as
a surprise to the appellant when this court invited additional
heads
of argument and oral argument at the outset of the hearing of the
appeal on the preliminary question of whether the appeal
and any
order made thereon would, within the meaning of s 21A, have any
practical effect or result.
[7] Of s 21A this court stated in
Coin Security Group (Pty) Ltd v
SA National Union for Security Officers & others
[2000] ZASCA 137
;
2001 (2) SA
872
(SCA) para 7:
'The purpose and effect of s 21A has been explained in
the judgment of Olivier JA in the case of
Premier,
Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA). As is there stated the section
is a reformulation of principles previously adopted in our Courts in
relation to appeals
involving what were called abstract, academic or
hypothetical questions. The principle is one of long standing.'
Courts should and ought not to decide issues of academic interest
only. That much is trite. In
Radio
Pretoria v Chairman,
Independent Communications Authority of South Africa
2005 (1) SA
47
(SCA), this court expressed its concern about the proliferation of
appeals that had no prospect of being heard on the merits as
the
order sought would have no practical effect. It referred to
Rand
Water Board v Rotek Industries (Pty) Ltd
2003 (4) SA 58
(SCA) at
para 26 where the following was said:
'The present case is a good example of this Court's
experience in the recent past, including unreported cases, that there
is a growing
misperception that there has been a relaxation or
dilution of the fundamental principle . . . that Courts will not make
determinations
that will have no practical effect.'
[8] This principle is common also to other systems. As Plewman JA
observed in
Coin Security
(para 7):
'It has particular application in Courts of appeal. The
attitude of the House of Lords is illustrative of this. What that
Court
has held is that it is an essential quality of an appeal (such
as may be disposed of by it) that there should exist between the
parties to the appeal a matter "in actual controversy which (the
Court) undertakes to decide as a living issue". See
Sun
Life Assurance Co of Canada v Jervis
[1944] 1
All ER 469
(HL) at 471A-B. This phrase accurately states the
standpoint of our Courts. It is a principle consistently adopted by
this Court
and the other Courts in the Republic.'
In a similar vein in
Radio Pretoria
(para 41), Navsa JA said:
'Courts of appeal often have to deal with congested
court rolls. They do not give advice gratuitously. They decide real
disputes
and do not speculate or theorise (see the
Coin
Security
case (
supra
)
at paragraph [7] (875A-D)).
[9] Reverting to the facts. In reply to the assertion in the City’s
answering affidavit that the relief sought would be moot,
Mr White
stated:
‘
The City has the option to
amend the water and sanitation tariffs for flats with effect from 1
July 2009. Having only challenged
this tariff in April 2008 Applicant
feels it has been more than reasonable in only asking for relief in
the current financial year.
It would have been possible to ask a
Court to declare the water and sanitation tariffs for the last three
years to be unfair and
invalid.'
As that makes plain Mr White was content to restrict himself to
relief in respect of what he described as the ‘current
financial
year’. Moreover, he had restricted himself solely to
declaratory relief posited on the notion that the City’s tariff
policy for that particular financial year was discriminatory. But
even were it to be found that the policy was indeed discriminatory
as
was urged upon us in argument that would hardly assist any other
potential litigant intent upon embarking upon a similar future
challenge. For, as the City pointed out:
'The City is committed to further analysis of its tariff
structures to decide what adjustments need to be made in subsequent
years.
This process of investigation and adjustment is in any event
part of the normal annual budget process. The fact that the City is
considering making adjustments to its Tariff Policy does not amount
to a concession that its current Tariff Policy is unfairly
discriminatory. The City is entitled to select a Tariff Policy from a
range of options which do not discriminate unfairly.'
[10] Recently in
Clear Enterprises (Pty) Ltd v SARS
(757/10)
[2011] ZASCA 164
(29 September 2011) para 19 this court stated:
‘
But as Innes CJ observed in
Geldenhuys &
Neethling v Beuthin
1918
AD 426
at 441:
"After all, Courts of Law exist for the settlement
of concrete controversies and actual infringements of rights, not to
pronounce
upon abstract questions, or to advise upon differing
contentions, however important."
In
National Coalition for Gay and
Lesbian Equality & others v Minister of Home Affairs & others
2000 (2) SA 1
(CC) para 21 footnote 18, the
Constitutional Court echoed what the learned Chief Justice had stated
over eight decades earlier
when it said:
“
A case is moot and therefore
not justifiable if it no longer presents an existing or live
controversy which should exist if the
Court is to avoid giving
advisory opinions on abstract propositions of law.” '
[11] Nothing that has been said by or on behalf of the appellant
1
in his additional heads of argument or on his behalf by counsel from
the bar before us has caused us to think that the determination
of
the appeal will have a ‘practical effect or result’
within the meaning of s 21A.
[12] That leaves costs. Thring J gave anxious consideration to the
nature of the litigation and the relative positions of the parties
before ordering Mr White to pay the City’s costs in the high
court. It has not been suggested that he misdirected himself
in any
way. Accordingly, no warrant exists for this court to interfere with
the exercise of the learned judge’s discretion
in that regard.
Counsel sought to persuade us that Mr White should not be mulcted
with the costs of the appeal, essentially because
as he put it:
first, Mr White, who is retired, was litigating in the public
interest; and, second, the City has deep pockets.
[13] As to the first: the City contended that it had adopted a policy
that was rationally related to the purpose sought to be achieved
by
it, namely the supply of piped water to the largest number of its
citizens at the lowest aggregate price. Accordingly, were
flat
dwellers in the position of Mr White to have been charged less than
the rate fixed in its tariff then, so it was contended
by the City,
funds would have to be diverted from the City’s poorer
residents resulting in them having to subsidise their
richer
compatriots. Furthermore, so the contention went, any under-recovery
would impact negatively on the service delivery targets
that the City
has set for itself. Thus that others similarly placed to Mr White may
possibly benefit financially - which was in
any event strenuously
disputed by the City - does not, without more, mean that the
litigation was indeed in the public interest.
From the City’s
perspective it patently was not. It is so that Mr White litigated for
the greater part in person. But he
had been forewarned by the City,
not just once but twice, that it was of the view that the appeal was
moot. Nor did the directive
from this court give him pause for
reflection. Undeterred he persisted in the appeal. Whilst that is his
right it is not without
its consequence.
[14] As to the second: Mr White has involved the City in long drawn
out and costly litigation. Our administrative arms of State
are
saddled with a difficult enough task. They usually have comparatively
meagre resources at their disposal as against huge demands
on the
public purse that they are called upon to administer. It is
inexcusable that the City should have been forced to fritter
away its
scarce resources in defending a claim such as this (see
Nokeng Tsa
Taemane Local Municipality v Dinokeng Property Owners Association
(518/09)
[2010] ZASCA 128
(30 September 2010) para 32). Moreover,
it bears noting that the principle involved cannot be viewed solely
inter partes
. Cases such as this serve to unnecessarily clog
the roll of this court with matter that does not require its
attention. The domino
effect is that cases of greater complexity that
are truly deserving of the attention of this court are left having to
compete for
a place on the court roll with a case which is not. It
follows that there is no reason why costs should not follow the
result in
the appeal.
[15] For the aforegoing reasons, after hearing argument on the issue
the matter was struck off the roll with costs, it being intimated
then that these reasons would follow.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: Alan D Maher
Instructed
by:
Michael
Baynham Attorneys
Cape
Town
Webbers
Attorneys
Bloemfontein
For
Respondent: R Paschke
Instructed
by:
Fairbridges
Cape
Town
McIntyre
& Van Der Post
Bloemfontein
1
The
appellant conducted the litigation in person in the high court and
initially before this court as well. It was only approximately
one
week prior to the hearing of the appeal and after his main and
supplementary heads had been filed that a firm of attorneys
and
counsel were instructed by the appellant.