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[1991] ZASCA 127
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Sehume v City Council of Atteridgeville and Another (32/90) [1991] ZASCA 127; 1992 (1) SA 41 (AD); [1992] 1 All SA 284 (A) (27 September 1991)
32/90
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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between
VINCENT THABO SEHUME
Appellant
and
CITY COUNCIL OF ATTERIDGEVILLE
1st
Respondent
ADMINISTRATOR OF TRANSVAAL
2nd Respondent
CORAM
: VAN HEERDEN, HEFER, SMALBERGER, NIENABER JJA et KRIEGLER
AJA
HEARD
: 10 SEPTEMBER 1991
DELIVERED
: 27 SEPTEMBER 1991
JUDGMENT
KRIEGLER AJA
/...
1.
KRIEGLER AJA
:
This appeal concerns the validity of a special levy
imposed by municipal by-laws. The appellant is the registered occupier of
residential
premises falling within the area of jurisdiction of the first
respondent ("the council"), a city council established in terms of
sec 2 of the
Black Local Authorities Act No 102 of 1982 ("the Act"). The second respondent,
the Administrator of Transvaal ("the
Administrator"), approved and promulgated
the relevant by-laws under the powers vested in him by the Act. He took no part
in the
proceedings in either court. The appellant, who was struck by the
provisions of the special levy, unsuccessfully challenged its validity
in the
Transvaal Provincial Division and", with the leave of that court, now renews the
challenge.
The special levy was adopted in the following circumstances. In March
1985
2/...
2.
and again in March 1987 by-laws increasing the council's tariffs for
municipal services were put into operation. The validity of both
such sets of
by-laws was, however, successfully assailed by the appellant in motion
proceedings in the Transvaal Provincial Division;
on 17 June 1988 the court set
them aside and declared earlier by-laws, which had come into operation in March
1982, to be of full
force and effect. The court further declared the appellant
"entitled to a refund of such monies as have been invalidly collected
in terms
of the" March 1985 and March 1987 tariffs. (Full details of the order appear
from the reported judgment,
Sehume v Atteridgeville Town Council
1989(1)
SA 721 (T) at 729F - I.) The order of court put the council in a quandary. Not
only had the tariff structures on which it
had budgeted and operated for several
years been swept away but, what is worse, it faced a substantial loss. Over the
years it
3/...
3. had purchased its requirements of electricity and water from the
City Council of Pretoria and had in turn supplied its consumers
at charges
sufficient to ensure that it recovered the purchase costs. Consequently
reversion to the 1982 tariffs would mean that
such consumers had been supplied
at below cost. Furthermore the order declaring the appellant entitled to a
refund presaged similar
claims by other consumers.
The special levy was the means devised to extricate the council from its
predicament. Two days prior to delivery of the judgment the
council had approved
the revenue estimates for the ensuing financial year and had resolved to
increase its tariffs by means of new
by-laws which were to have come into
operation on 1 November 1988. Having become aware of the judgment the council
held a special
meeting on
4/...
4.
12 July 1988 at which it resolved to engraft the special levy onto such
proposed by-laws. The resultant amended by-laws were promulgated
by the
Administrator on 30 November 1988 under Administrator's Notice 1398 entitled
"By-laws relating to the making of charges for
services and the use of
facilities." The special levy was structured in the following manner. First a
number of interrelated terms
were defined in Regulation 1 of the by-laws, namely
"consumer", "holder", "special levy" and "special credit". The relevant
definitions
read as follows:
"(vi) 'consumer' means a person to whom or for whose benefit services are
supplied, made available, or provided whether or not such
services are utilised
and, if there is no such person, the holder;
(vii) 'holder' means the owner or a person to whom a site has been allocated,
the holder of a right of leasehold or a person who has
entered into an agreement
or transaction for the acquisition of land or a site or of a right to or an
interest in land or a
5/...
5.
site;
(xiv) 'special levy' means the one-time levy determined in terms of
regulation 13; and
(xv) 'special credit' means the credit on a consumer's account with the City
Council to which he has become entitled in an amount
equal to -
(a) the additional amount which was charged
by the City Council to the account of a consumer in respect of services;
(b)
the additional amount which
was charged by the City Council to the account of a holder of a business site in
respect of site rent;
(c)
the additional
amount which was charged by the City Council to the account of a hostel resident
in respect of his accommodation in
a hostel;
(d)
the additional amount which was charged by the City Council to the
account of a lodger in respect of his lodging;
(e)
the additional amount which was charged by the City Council to the
account of a holder of a church site in respect of site
rent;
(f)
the additional amount which
was
6/...
6.
charged by the City Council to the account of a holder of a residential site
in respect of site rent;
over and above the amounts prescribed in terms of the regulations promulgated by
Government Notice 557 of 28 March 1980 (as amended,
by Government Notice 573 of
26 March 1982), and which was charged by reason of the implementation by the
City Council of the regulations
promulgated by Government Notice 71 of 11
January 1985 (as amended, by Administrator's Notice 87 of 31 December 1986), and
which
latter regulations were declared null and void by the Supreme Court of
South Africa (Transvaal Provincial Division) on 17 June 1988.
The additional amounts charged monthly in respect of each of the categories
referred to in sub-paragraphs (a) to (f) above, are calculated
as set out in the
Annexure hereto."
Then regulation 13 was formulated
in the following terms:
"Special Levy
13.(1) Every person subject to these by-laws and
who has become entitled to a special credit on his account with the City Council
shall
7/...
7.
be liable for payment to the City Council of a one time levy in an amount
equal to such special credit.
(2) The City Council shall be entitled to
appropriate any credit standing to the
account of any person subject to these by-
laws as a payment in respect of the
aforementioned levy."
Lastly the annexure referred to in the concluding paragraph of the definition
of "special credit" tabulated the council's monthly
charges for municipal
services under its March 1982, March 1985 and March 1987 tariffs respectively,
and calculated the monthly and
total disparities under separate headings
relating to the categories of consumers mentioned in paragraphs (a) to (f) of
the definition
of "special levy" in regulation 1(xv). Thus, for instance, the
monthly charges in respect of residential sites were formulated as
follows:
8/...
8.
"1. Residential sites
Services March 1982 March 1985 March 1987
Miscellaneous R 8,35 R16,35 R16,35
Electricity 14,43 16,43 23,54
Water 8,20 11,80 13,60
Sewerage 2,75 4,00 6,00
Refuse removal
2,45
5,00
6,50
R36,18 R53,58 R65,99
March 1982-Feb 1985 36 months @ R17,40 = R 626,40 March 1985-Feb 1987 24 months
@ R29,81 = R 715,44 March 1985-Sep 1988 18 months
@ R29,81 =
R
536,58
R1878,42
"
As can be seen the charges per month totalled R36,18 under the March 1982
tariff while under the March 1985 and March 1987 tariffs
they added up to R53,58
and R65,99 respectively. That meant, as the annexure indicates, that under the
March 1985 tariff the "additional
amount" was R17,40 per month (R53,58 -R36,18)
and under the March 1987 tariff R29,81 per month (R65,99 - R36,18). Thereafter,
however,
the calculation reflected in the annexure went awry.
9/...
9. Instead of calculating the disparity of R17,40 per month from
March 1985, when the first set of invalidated by-laws came into operation,
the
annexure reflects a calculation for the 36 months from March 1982 to 1985 at
R17,50 per month and totalling R626,40. That is
clearly wrong. The March 1982
tariff remained extant until March 1985 and until the latter date no "additional
amount — over
and above the amounts prescribed in terms" thereof was
charged by the council. There are two further errors in the annexure, the
one of
substance and the other merely clerical. The second line of the calculation
reads: "March 1985 -February 1987 24 months @
R29,81 = R715,44"; the monthly
disparity during that period, was not R29,81 but only R17,40. In the third line
of the calculation
the period from March 1985 to September 1988 is reflected as
18 months; clearly the commencing date is wrong and should read March
1987.
Commencing the
10/...
10.
calculation at March 1985 and taking the correct
disparities
thereafter, the total of the "additional amounts" under the heading for
residential sites adds up to R954,18 and not the
figure of Rl 878,42 reflected
in the annexure. Corresponding over-calculations appear under the succeeding
four headings in the annexure
relating to the other types of charges levied by
the council. The question whether or not the miscalculation invalidates the
"special
levy" can be left for consideration later.
At this juhcture the
meaning and effect of the levy fall to be considered. Reg 13 is to be read in
conjunction with the relevant definitions
in reg 1, which provide the requisite
lexicon. A levy is imposed on every person "who has become entitled to" a credit
on his account
with the council in respect of municipal service or site charges
made by the council under the invalidated by-laws over and above
the charges
11/...
11.
authorised by the 1982 by-laws. The amount of the levy equals the
amount of such overcharges and the annexure shows how the latter
amount is to be
calculated. The "special credit" is not a true credit for payments made, but an
artificial concept, namely, the disparity
in charges under the valid and the
invalid by-laws respectively (the "additional amount"). On one reading of the
by-laws every ratepayer
is "credited" only to the extent of his entitlement
while the "special levy" applies in full. Therefore, if he had paid nothing
under
the invalid by-laws he would be entitled to no credit and would be liable
for the "special levy" to the full extent of the "additional
amount". If, again,
he had paid in full he would be entitled to the "special credit" in full, ie for
the whole of the "additional
amount", and the "special levy" would merely wipe
out the "special credit". Persons who had paid partially would be "credited"
only
to the extent of their entitlement but would be levied for the whole
12/...
12.
of the "additional amount". Upon scrutiny, therefore,
the "special
credit" is not only artificial, but illusory. Indeed it merely serves to fix the
amount of the "special levy" in the
case of every ratepayer at a level
sufficient to off-set any overcharges made under the invalidated by-laws. In the
result the council
would be entitled to retain what had been overpaid under the
illegal tariffs and to demand payment of any balance outstanding
thereunder.
On a different reading of the by-laws they do not create a credit
- reg 13 assumes its existence and reg 1(xv) defines it in terms
which imply
prior payment under the invalid by-laws, namely, by referring to a credit to
which a person "has become entitled". There
is force in the argument that such
entitlement necessarily presupposes prior payment - a person could only have
become
entitled
to a credit by having made payment(s). If that is correct
the definition of "special credit" would refer only to persons who had
13/...
13.
paid under the invalid by-laws and the "special levy"
created in reg 13(1) would apply only to them.
Whichever one of the two
possible meanings may be correct, this much is clear: the effect is that
possible claims for refunds for
overpayments under the invalidated by-laws are
sought to be extinguished by the "special levy". That is hardly surprising.
After
all, the very purpose of the exercise had been to obviate the problems
created by the earlier judgment. The crucial question is whether
the means
devised were lawful.
Mr Chaskalson submitted on behalf of the appellant that
the "special levy" was a levy in name alone; in truth it was a retroactive
charge for municipal services which, to boot, bore partially and unequally on
those falling within its purview. Three grounds of
invalidity are thus advanced.
The first draws a distinction between the council's power to raise a levy and
its power to fix and
recover charges
14/...
14.
for municipal services. Counsel drew attention to
sec 23 of the Act, which enumerates the rights, powers, functions, duties and
obligations of local authorities established under sec
2. Sub-paragraph
23(1)(l)(ii) invests a city council like first respondent with authority in its
area of jurisdiction with regard
to matters set forth in a schedule to the Act.
(The matters listed in the schedule include the administration of the letting of
buildings
(par 8), the reticulation of water and effluent removal services (par
17) and the supply of power to the residents of its area (para
18).)
The relevant portions of paragraphs (p) and (q) of sub-section 23(1) then
provide that first respondent -
"(p) may, with the approval of the administrator, impose levies for purposes
determined by the local authority;
(q) may from time to time by by-law determine the
15/...
15.
tariffs for services rendered with regard to matters set forth in the Schedule
or for the supply or use of any of the facilities
referred to in the
Schedule:"
(Then follow two provisos not relevant to this
appeal.)
In terms of sec 27(1) of the Act the
legislative power conferred on first respondent by sec 23(1)(q) is further
subject to the second
respondent's approval while sec 27(4) requires second
respondent to publish by-laws duly made by first respondent in the Official
Gazette. In addition sec 56(1 )(i) of the Act empowers second respondent to make
regulations as to the procedure to be followed by
local authorities when making
by-laws under sec 27. Regulations 2 and 3 of such regulations (Regulation 1993
of 16 September 1983,
as amended, published in Government Gazette No 8886 of
that date) read as follows:
16/...
16.
"'
Authority for the making of a by-law
2. No by-law shall be made by a local authority
save on a resolution
adopted at a duly
constituted meeting of such local authority
authorising
the making of such by-law.
By-law to be published
3. When a resolution has been adopted as
provided in regulation 2, the
chief executive
officer shall cause -
(a)
a copy of such resolution,
and of the draft by-law referred to therein, to be forwarded to the director for
submission to the Administrator
for consideration by
him;
(b)
a notice to be published in two
issues of a newspaper as provided in s 110 of the Republic of South Africa
Constitution Act, 1961
(Act 32 of 1961), and circulating in the area of
jurisdiction of the local authority concerned, in which
-
(i) the general purport of the draf t by-law is
set out;
(ii) it is stated that a copy of such draft by-law is lying for inspection
during normal office hours at the office of the local authority
for a period of
14
17/...
17.
days as f rom the date of the second publication of such notice;
(iii) it is stated that any resident of such area of jurisdiction who desires
to record any objection to such draft by-law or who
wishes to comment thereon
shall do so in writing to the chief executive officer within 21 days of the date
of the second publication
of such notice."
Mr Chaskalson argued that the lawgiver clearly distinguished between a local
authority's power to impose levies on the one hand and
its power to determine
tariffs for services on the other. In the case of a levy the only requirement is
the approval of the Administrator
whereas the fixing of tariffs for services
requires the whole elaborate procedure for the adoption, publication and
promulgation
of by-laws. Consequently, so the argument ran, a local authority
cannot determine tariffs for services by means of a levy. The "special
levy" is
indeed a charge for
18/...
18.
municipal services by another name and the council has accordingly exceeded
the powers vested in it by the Act. It was further submitted
that the council
purported to fix charges in 1988 for municipal services rendered from 1985
onwards. Inasmuch as there is no express
or necessarily implied power in the Act
to legislate retrospectively the adoption of the "special levy" was
ultra
vires
the council. In the third instance and in any event, so Mr Chaskalson
argued, the levy is so partial and unequal in its application
as to render it
grossly unreasonable and hence invalid.
Mr Maritz, who argued the appeal on
behalf of the council, conceded that a finding that the "special levy"
constituted a retrospective
exercise of the council's powers (whether as a levy
or as a determination of charges for services) or a finding that it was grossly
unreasonable due to its partial and unequal application, must result in its
being struck
19/...
19.
down. The concession was rightly made. Sec 23(1)(q) is unequivocally
couched in prospective terms while there is no indication in
par (p) that the
legislature intended departing from the well-known presumption against
retrospectivity (see Steyn:
Die Uitleg van Wette
, 5th ed p 236). The
section as a whole was intended to circumscribe the powers of local authorities
and in the, context under consideration
it is neither necessary nor permissible
to interpret it as affording powers not expréssly bestowed or necessarily
implied.
Likewise there is no indication in the Act that its creatures were
empowered to discriminate unfairly between categories of persons
under their
domain. From that it follows that partial, unequal and consequently grossly
unreasonable by-laws or levies would not
fall within the council's powers
(
Rex v Abdurahman
1950(3) SA 136(A) at 143C - H).
Mr Maritz submitted though that the "special levy" is truly what it purports
to be; although it had
20/...
20. admittedly been adopted in order to supplement the loss
sustained as a result of the invalidation of the March 1985 and March
1987
by-laws, that was merely an historical fact and of no legal consequence. Counsel
likened it to a loss occasioned by a natural
disaster befalling the council's
property. It was therefore neither a disguised charge for services nor
retrospective. Moreover,
so Mr Maritz submitted, the perceived partiality and
inequality were illusory: the "special credit" and the "special levy" were
merely
balancing book entries which left each consumer with a nil balance on his
account.
In any event, so he submitted, it was not open to the appellant to
argue the point of partiality and inequality as it had not been
raised on the
papers. I do not agree. It is true that the appellant did not specifically raise
the point in his founding affidavit
but instead sought to invalidate the
November 1988 by-
21/...
21 . laws as a whole on a number of other grounds. Nevertheless the
point was pertinently raised in the court a
quo
; the argument on
appellant's behalf was confined to an attack on the validity of the disputed
levy and one of the grounds advanced
in support was the impartial and unequal
incidence thereof. The learned judge a
quo
entertained argument on the
point and determined it in favour of the council. In this court the issue was
fully debated, both in
the heads of argument and at the hearing. To the extent
therefore that questions of law are involved, there could be no prejudice
to the
council if this court were to consider the issue. To the extent that it involves
questions of fact, they are largely to be
inferred from the circumstances. The
manner in which the practical application of the disputed levy will bear upon
different categories
of persons, does not really lie within the knowledge of
either party but arises from a
22/...
22.
legal interpretation of the enactment in the knowledge that is to be
applied by a local authority in its area of jurisdiction. It
follows that any
averments on the point which the appellant could have made in his founding
affidavit would have been essentially
argumentative. And though the council's
acting town clerk, who deposed to the answering affidavit, probably knows a
great deal more
about the day to day effect of the levy, he would have been
constrained to respond in similar argumentative vein. In any event it
is highly
undesirable that the possible invalidity of the levy in question be left hanging
in the air. Prolonged uncertainty will
inevitably redound to the detriment, not
only of the council, but of untold numbers of others. But even if that had not
been the
case, sufficient facts can be gleaned or inferred from the papers to
deal with the question of law - which has been squarely raised.
Indeed the
circumstances call
23/...
23.
for adjudication more compellingly than had been the case in
Van
Rensburg v Van Rensburg en Andere
1963(1) SA 505(A), to which Mr Chaskalson
referred.
There is much to be said for Mr Chaskalson's argument regarding the
distinction between the council's power to impose a levy and the
power to fix
charges for municipal services. Paragraphs (p) and (q) of sec 23(1) of the Act
were ostensibly intended to clothe a
Black local authority with two distinct and
different powers, namely to impose levies and to determine the tariffs for its
services.
Generally a levy is a kind of tax or impost (see The Oxford English
Dictionary, 2nd Ed, Vol VIII, page 871) not denoting a
quid pro quo
; a
charge for municipal services, again, implies payment for services rendered or
made available. Moreover "(t)he usual mode of interpretation
is to read the
sub-sections of a section as interrelated parts of the whole" (per Hoexter JA
in
24/...
24.
Aziz v Divisional Council, Cape and Another
1962(4) SA
719(A) at 726E). In the present context there can be little doubt that a Black
local authority cannot lawfully establish
or amend service charges by means of a
levy imposed under sec 23 (1 ) (p) of the Act. It follows a
fortiori
that
the council could not lawfully do so retrospectively. The whole procedure set
out in the regulations formulated under sec 56(1)
of the Act was designed to
forewarn residents of impending amendments to tariff charges and to afford them
an opportunity to make
appropriate representations. Such opportunity would be
rendered nugatory by an interpretation of sec 23(1)(p) which permits tariffs
to
be amended by means of a levy. It would also be contrary to the scheme of sec
23(1)(q) to permit retroactive increases in charges
for municipal services.
Urgent adjustments by way of resolution are permitted but, as the paragraph
makes plain, in such a
25/...
25.
case the ordinary by-law route has to be followed within six months. The
"special levy", notwithstanding the ingenuity of its conception
and the
complexity of its structure, appears to be no more and no less than a device
retroactively to increase the council's charges
for municipal services.
It is
not correct that the belated invalidation of the council's by-laws was merely
the cause of a loss which it sought legitimately
to recoup - or partially to
avoid - by means of the "special levy". Although it was couched as a levy
imposed on all persons generally,
it was intended to strike - and indeed strikes
- at persons who were consumers or holders at any time during March 1985 to
September
1988 and who remained such when the 1988 by-laws came into operation.
Admittedly all such consumers or holders with municipal service
accounts with
the council were affected, and only to the extent
26/...
26.
that there had been overcharges cm their accounts for municipal
services. But both in its intent and its effect the "special levy"
served to
reverse the invalidation of the 1985 and 1987 by-laws. On the first
interpretation discussed above the "special credit"
is to be afforded to every
ratepayer. The by-laws then create a fictional credit relating to service
charges but raise the "special
levy" in full. The council would then be in
precisely the position it would have been had its by-laws relating to charges
for municipal
services not been struck down: no-one could claim a refund for
overpayments made thereunder and any debit balance on a consumer or
holder's
account would be recoverable by the council at the (illegally) increased rates.
Thus the device of a levy imposed in 1988
under sec 23(1)(p) of the Act would
have been used to render ratepayers liable for service charges made from March
1985 onwards.
That the council cannot
27/...
27.
lawfully do under the enabling enactment. The limits of its powers
thereunder need not be determined, for it is clear that an increase
in charges
for municipal services is to be introduced by way of by-laws under sec 23(1)(q).
The purported exercise of the council's
powers under par (p) of sec 23(1) of the
Act in order to achieve that which can only be done under par (q), was invalid.
Moreover,
even if the council had not labelled the disputed measure a levy but
had adopted nomenclature appropriate to determination of service
charges, it
would still have been acting
ultra vires
. Indeed, then the purported
exercise of retrospective rating powers which it manifestly does not possess,
would have been all the
more plain.
On the alternative interpretation of the by-laws the conclusion of invalidity
is equally ineluctable. If the definition of "special
credit" postulates payment
under the invalidated by-laws - and
28/...
28.
accordingly renders the "special levy" only applicable to those
ratepayers who had paid, whether partially or fully - it results in
overpayments
in respect of service charges being nullified. What the by-laws then achieve, is
cancellation of claims for refunds
of overpayments. They still constitute an
attempt to legitimate retrospectively service charges which were illegal at the
time they
were made and paid, to which the strictures discussed in the preceding
paragraph apply with equal force. But the criticism goes further.
The creation
of the artificial "special credit" and the contemporaneous imposition of the
"special levy" in themselves serve no purpose
- the council merely gives with
the one hand and takes with the other. But the draughtsman did not have such a
pointless exercise
in mind. The real - and thinly veiled - objective is attained
by the right of appropriation built into reg 13(2). It strikes only
at
29/...
29.
those who had overpaid as a result of the invalidated by-laws; in their case
there would be a third hand involved in the giving and
taking exercise, a hand
which took yet a second time. And what would be taken is the overpayments made
under the invalidated by-laws
- overpayments made in respect of service charges.
The fiscal sleight of hand would in substance and in reality mean that the
conscientious
ratepayer would be charged,
nunc pro tunc
, for the services
he had enjoyed since March 1985. What he had overpaid under the invalidated
by-laws would not be recoverable from
the council by virtue of the latter's
right of appropriation contained in reg 13(2). The recalcitrant consumer,
however, would be
left untouched. Not having been afforded the spurious benefit
of the "special credit", he would not have the "special levy" visited
upon him.
In the result he who had paid nothing, would lose nothing; he who had paid what
had not been due,
30/...
30.
would be deprived of any right to recover the
indebitum
. It goes
without saying that the latter class would be singled out for such prejudicial
treatment. And even more self-evidently discrimination
against the conscientious
- for the very reason that they
had
been conscientious - is
unconscionable. To penalise virtue is unreasonable. The enabling statute
contains no indication that a Black
local authority can lawfully treat those
under its jurisdiction in such an unreasonably unequal manner.
It follows
that the "special levy" provisions in the 1988 by-laws must be held to have been
a purported exercise by the council of
powers not vested in it by the Act. In
view of the preceding conclusions, detailed consideration of the effect of the
miscalculation
of the "additional amounts" in the annexure to the by-laws is
unnecessary. But it should be pointed out that the excessive amounts
arrived
at
31/...
31.
erroneously in the schedule to the by-laws, expose consumers and holders to
"special levies" substantially greater than the actual
overcharges. A
conscientious holder of a residential site, for instance, would have been
overcharged in a total amount of R954,18
but his levy would be R1 878,42.
Clearly the council is not empowered to impose such a burden on its
ratepayers.
To sum up, the council has purported to exercise the power to
impose levies, conferred upon it by sec 23(1)(p) of the Act, for a purpose
not
contemplated by such paragraph, namely, to introduce increases in its tariff of
charges for municipal services. That it cannot
do - see
Sinovich v Hercules
Municipal Council
1946 AD 783
at 792;
Van Eck N.O and Van Rensburq N.O v
Etna Stores
1947(2) SA 984(A) at 996-7, and
Mathebe v Regering van die
Republiek van Suid-Afrika en Andere
1988(3) SA 667 (A) at 700 B - C. It has
also attempted to effect such increases
32/...
32.
retrospectively whereas sec 23(1)(q) of the Act envisages prospective
increases only. On the second, though less likely, interpretation
of the 1988
by-laws, the council has moreover discriminated unreasonably against consumers
and holders who had made payments in respect
of chargés for municipal
services under the invalidated by-laws. In so doing it breached the principle
enunciated by this
Court, e.g. in
Rex v Abdurahman
supra,
Sinovich's
case supra and
Minister of Posts and Telegraphs v
Rasool
1934 AD 167
at 173 and 180.
The appeal is upheld with costs,
including the costs consequent upon the employment of two counsel. The order in
the court a
quo
is set aside and substituted by the following order:
1. By-law 13 of the by-laws of the City Council of Atteridgeville promulgated
under Admini-
33/...
33. strator's Notice 1398 dated 30 November 1988 is declared to be null and
void.
2. The first respondent is to pay the costs of the application.
J C KRIEGLER
ACTING JUDGE OF APPEAL
VAN HEERDEN JA)
HEFER JA)
SMALBERGER JA) Agree
NIENABER JA)