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[1994] ZASCA 32
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Kajee v Town Council for the Borough of Stanger (601/89) [1994] ZASCA 32; 1994 (3) SA 9 (AD); (25 March 1994)
Case no 601/89 IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
A. KAJEE
Appellant
AND
THE TOWN COUNCIL FOR THE
BOROUGH OF STANGER
Respondent
Coram
: BOTHA, NESTADT, EKSTEEN, HARMS, JJA et NICHOLAS, AJA
Heard
: 28 February 1994
Delivere
d: 25 March 1994
JUDGMENT
EKSTEEN
, JA :
The respondent (which I shall refer to as "plaintiff") sued the appellant (to
whom I shall refer as "defendant") in the magistrate's
court of Stanger for the
payment of R460 being for "elec-tricity availability charges" which it alleged
were owing to it by the defendant
for the period 1 August 1978 to 30 April 1986.
By the time summons was issued much of this had become prescribed and the
plaintiff
reduced its claim to R280 being in respect of the years 1983 to
1986.
The magistrate dismissed plaintiff's claim with costs on the higher scale,
but, on an
..../ 2
2
appeal to the Natal Provincial Division (reported in
1990 (1) SA 250
(N))
this judgment was reversed. The defendant now comes before us on appeal with the
leave of the latter court.
Neither party led evidence at the trial and the matter was decided on the
pleadings as amplified by certain admissions made by the
defendant, and by
certain documents handed in by consent. From these it appears to be common cause
that the defendant was the owner
of a property known as Lot 142, Tinley Manor,
and that Tinley Manor is situated outside the boundaries of the borough of
Stanger.
The plaintiff was a supplier of electricity in
3
terms of the Electricity Act 40 of 1958. In terms of sections 38 and 40 of
the Act, and with the permission of the Electricity Control
Board, it was
authorised to supply electricity not only within the borough of Stanger but also
to surrounding areas including Tinley
Manor. The local authority of Tinley Manor
had also consented to such supply. The defendant's property was not connected to
the plaintiff's
electricity system, but plaintiff's main electricity cable
passed within 23 metres of defendant's property, and it could therefore
readily
have been connected had defendant wanted it.
In its particulars of claim plaintiff
.... / 4
4
allege that:
"7. In terms of section 266(1)(f) of the said Ordinance (i.e. Ordinance 25 of
1974 (Natal)) read with paragraph 8(10) of the Plaintiff's
tariff of charges as
promulgated under Municipal Notice 219/83, the Defendant is liable for the
payment to the Plaintiff of an electricity
availability charge in respect of the
said property ..."
In his plea defendant denied that plaintiff was entitled to levy such a
charge in respect of his property "by reason of the fact that
it owns and
operates a main electricity cable which passes within 23 metres of defendant's
property" . Defendant then went on to
plead that:
"a) The Defendant avers that the Plaintiff is not competent to impose an
electricity availability charge in
.... / 5
5
respect of the Defendant's property, which property is not situate within the
municipal boundaries of the Borough of Stanger. b) Alternatively
to (a) above
and if
this Honourable Court holds that the Plaintiff is competent to impose such
charge in respect of properties not situate within its
municipal boundaries, the
Defendant denies that the tariff of charges published under Municipal Notice
219/83 is applicable to the
Defendant's property."
Plaintiff handed in Municipal Notices nos 104 of 1976, 6 of 1978, 77 of 1979,
219 of 1983 and 2 of 1985. Each of these notices is
headed "Tariffs of Charges"
and fixes the tariffs of charges in respect of a wide range of municipal
services such as building plan
fees, fees in respect of the supply of water,
stall
.... / 6
6
rentals at the municipal market and cemetery fees,
to name but a few. Each
of them also purports to
levy and fix an electricity availability charge.
Municipal Notices 219 of
1983 and 2 of 1985 -
which are the only ones relevant to the present
issue - provide i a that
"In respect of any approved subdivision, with or without improvements, which
is not connected to the Council's electricity scheme
and which can reasonably be
so connected, the owner shall pay to the Council an electricity availability
charge as stipulated hereunder
.... "
A copy of plaintiff's "Electricity
Supply Bylaws" was also handed in. These bylaws
provide for the requirements attendant on the
supply of electricity but contain no reference to
.... / 7
7
any liability to pay an electricity availability
charge.
The relevant portions of section 266(1)
of the Local Authorities Ordinance 1974 (25 of 1974)
(Natal) ("the Ordinance") provided that :
"266(1) Subject to the provisions of
sections 265, 268, 269 and 270, the council may make bylaws for
giving proper effect to any of the powers and duties conferred or imposed
upon it by this Ordinance or any other law, ... and also,
without affecting the
generality of the aforegoing for all or any of the following purposes .... :
(f) Electricity and gas -
(i) regulating all matters relating to the supply and utilisation of
electricity and gas within or without the borough, ... prescribing
an
availability
.... / 8
8
electricity charge in respect
of properties, with or without improvements which are not connected to the
council's electricity scheme if such properties can reasonably
be so connected
.... "
This appeal first came before this Court on 12 November 1992 when counsel was
asked whether the bylaw authorising the council to impose
an availability
charge, and which did not form part of the papers before us, could be made
available to us. Despite a brief adjournment
to enable counsel to make enquiries
they were unable to produce the bylaw or to give us any reference to it. Both
counsel then agreed
to ask for a postponement to enable them to make proper and
more thorough
..../ 9
9
enquiries, and this was granted. The matter has
now come before us again
without any further bylaw
having been produced. Instead plaintiff's counsel referred us to the
provisions of section 268(4) of the Ordinance as it existed prior
to its
amendment by section 11 of Ordinance 28 of 1985. Section 268 dealt with the
procedure to be followed for the making of valid
bylaws, and then provided:
"268(4) The provisions of this section shall not apply in respect of any
charges which may be levied by the council in terms of this
or any other
Ordinance and notwithstanding anything in section 266 contained, the council
shall impose fees and frame tariffs of
charges only by resolution as provided in
section 265(1)."
.... / 10
10
Counsel contended that this subsection empowered the plaintiff "to make
bylaws the effect of which was to impose fees in terms of
section 266(1)(f)( i )
of the Ordinance without following the procedure laid down in section 268". He
then went on to submit that
-
"in terms of the provisions of section 268(4) of the Ordinance, the making of
a valid bylaw imposing fees such as availability electricity
charges did not
require that it be promulgated in terms of the procedure laid down in section
268".
The promulgation of the Municipal Notices 219 of
1983 and 2 of 1985
imposing charges according to
tariffs prescribed by a resolution of the council,
he submitted, constituted the making of valid by-
.... / 11
11
laws.
I cannot agree with this argument.
Section 266(1) empowers a council
to
"make bylaws for giving proper effect to any
of the powers .... conferred .... upon it by
this Ordinance."
One of the powers so conferred upon it is to prescribe an
availability electricity charge. It therefore requires that any council
seeking
to exercise that power should pass a bylaw to that effect. Counsel's argument as
set out above seems to recognize this. He
then goes on to submit, however, that
when it comes to the imposition of an availability charge, section 268(4) allows
a bylaw to
be made by a simple resolution published as a municipal
.... / 12
12
notice. Section 268(4) is not, in my view, susceptible of such an
interpretation. It simply provides that a bylaw will not be required
in respect
of any charges which the council is already empowered to levy in terms of "this
or any other ordinance". Nor does it require
a bylaw to impose fees or to frame
tariffs of charges. This may be done by resolution. But before a council can
impose fees or frame
tariffs it must be properly empowered to do so. Section
266(1) does not empower every council in the province to levy an availability
charge, but it does allow a council as a matter of general policy to take that
power by passing a valid bylaw
.... / 13
13
to that effect. Once it has done so, and acquired the power, it may frame the
necessary tariff by resolution. It follows, too, that
any subsequent amendment
of the tariff may conveniently be done by resolution. (Cf
R v Hughes
1935
CPD 409
at 416.) Section 265(1) (a) of the Ordinance as it read prior to it's
amendment by section 10 of Ordinance 28 of 1985 tends to make
this clear in its
provision that :
"
All charges which the council is empowered to make
in terms of this
Ordinance or any other law shall ... be imposed according to tariffs prescribed
by resolution .... " (my emphasis.)
(Section 10 of Ordinance 28 of 1985 amended the
italicised words to read "All charges which a
.... / 14
14
council may make ... " This, however, does not change the essential import of
the section.)
The municipal notices 219 of 1983 and 2 of 1985 on which the plaintiff
relies, purport to have been made in terms of section 265(1)
of the Ordinance
and are headed "Tariffs of Charges". Nowhere do they purport to be bylaws.
Among the admissions made by the defendant in the magistrate's court was one
that -
"The relevant tariffs - being schedule (4) of the plaintiff's electricity
supply bylaws -are those set out in the following Municipal
Notices published in
the official Gazette for the Province of Natal ..."
and then followed the references to the five Municipal notices I have
mentioned above. However,
.... / 15
15
as I have already pointed out, and as indeed is
common
cause, the electricity supply bylaws for
the borough of Stanger make no
reference to an availability charge, and certainly do not empower the plaintiff
to levy such a charge.
In fact there is no valid bylaw passed in accordance with
the requirements of section 268 conferring such a power on plaintiff. It
follows, therefore, that the plaintiff had no such power, and that the municipal
notices purporting to prescribe such a tariff by
resolution can have no legal
effect.
The appeal therefore succeeds with costs including the costs of the postponed
hearing
.... / 16
16
of the matter on 12 November 1992 and the order of the court a quo is altered
to read:
"The appeal is dismissed with costs".
J.P.G. EKSTEEN, JA
BOTHA JA )
NESTADT, JA )
concur
HARMS, JA )
NICHOLAS, AJA )