Joseph and Others v City of Johannesburg and Others (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC) ; 2010 (4) SA 55 (CC) (9 October 2009)

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[2009] ZACC 30
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Joseph and Others v City of Johannesburg and Others (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC) ; 2010 (4) SA 55 (CC) (9 October 2009)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 43/09
[2009] ZACC 30
In the matter between:
LEON JOSEPH
First Applicant
VALERIE MOSES
Second Applicant
VICTOR MOKETE MOKOENA
Third Applicant
LUCRICIA VAN WYK
Fourth Applicant
SHANICE MAYEZA
Fifth Applicant
DIANA VAN ROOYEN
Sixth Applicant
and
CITY OF JOHANNESBURG
First Respondent
CITY POWER (PTY) LTD
Second Respondent
MEMBER OF THE EXECUTIVE COUNCIL FOR
LOCAL GOVERNMENT AND HOUSING, GAUTENG
Third Respondent
THOMAS NEL
Fourth Respondent
Heard on : 18 August 2009
Decided on : 9 October 2009
JUDGMENT
SKWEYIYA J:
Introduction
This is an application for leave
to appeal against the judgment of the South Gauteng High Court,
Johannesburg (High Court) in
Darries and Others v City of
Johannesburg and Others
.
1
The matter concerns the termination of the electricity supply to
the applicants’ place of residence following the accumulation
by
the landlord of substantial arrears in payments owing to the City
of Johannesburg’s electricity service provider, City
Power (Pty)
Ltd (City Power). In both the High Court and in this Court, the
applicants have sought the reconnection of the
electricity supply
and an order declaring that they were entitled to procedural
fairness in the form of notice and an opportunity
to make
representations to City Power before the electricity supply was
terminated.
The difficulties that arise in
this case stem from the fact that the applicants are tenants who
have no contractual right to
receive electricity from the second
respondent, City Power. Instead, the applicants pay their
electricity bills to their landlord,
the fourth respondent, whose
company, Ennerdale Mansions (Pty) Ltd, has contracted with City
Power for electricity to be supplied
to the building. The crux of
this case is therefore whether any legal relationship exists
between the applicants and City Power
outside the bounds of
contractual privity that entitles the applicants to procedural
fairness before their household electricity
supply is terminated.
The parties
The applicants are all tenants of Ennerdale Mansions,
a block of 44 apartments in Johannesburg which is owned and let by
the
fourth respondent, Mr Thomas Nel. Since the decision of the
High Court, certain of the tenants who were applicants before the

High Court have left Ennerdale Mansions. The first to sixth
applicants before this Court are the only remaining parties to
the
High Court application who are still living in the building.
The first respondent is the City
of Johannesburg (the City). The second respondent is City Power, a
parastatal that is wholly-owned
by the City and responsible for
providing electricity to people within the jurisdiction of the
City. The first and second respondents
have made common cause in
this matter and will be referred to collectively as the respondents
unless the context requires otherwise.
The third respondent is the
Member of the Executive Council for Local Government and Housing,
Gauteng, whom the applicants have
cited because he may have an
interest in their challenge to the constitutional validity of
certain municipal by-laws. The third
respondent abides by the
decision of this Court.
The fourth respondent is the
landlord, Mr Thomas Nel, who is cited because he owns the affected
building, Ennerdale Mansions.
No relief is sought against Mr Nel,
and he did not participate in these proceedings.
Factual background
On the morning of 8 July 2008, City Power disconnected
the electricity supply to Ennerdale Mansions. The applicants
received
no prior notice of the disconnection, and aver that they
had no idea why the electricity was being cut off. It appears from

the record that, at the time of the disconnection, most if not all
of the applicants, who were being billed for electricity by
Mr Nel,
had consistently kept up with their payments. Approximately 30
families were living in the building, including 38 children,
and
four apartments were occupied by elderly people. The average
monthly income of the households in the building was R3 000
to R4
000, although some households had no income at all. A number of
shops and businesses also operated from Ennerdale Mansions.
On the evening of the
disconnection, Mr Nel’s son delivered a note to each apartment,
which stated that owing to “unforeseen
circumstances” the
electricity supply would be disconnected for a few days. On 11
July, following failed attempts to reach
the landlord, the tenants
formed a committee to investigate the reasons for the electricity
disconnection. Members of this
committee visited the City Council
offices on 14 July and were informed that City Power had
disconnected the electricity supply
because Mr Nel was in arrears
to the tune of R400 000. The City Council referred the tenants to
the South African Human Rights
Commission
2
for assistance, which in turn referred them to the Rental Housing
Tribunal.
3
The applicants lodged a formal complaint against Mr Nel at the
Tribunal, but to no avail. On 18 July, the applicants approached

the University of the Witwatersrand Law Clinic
4
and were advised to launch proceedings in the High Court. There,
the applicants unsuccessfully sought to have the electricity
supply
reconnected and to compel City Power to conclude temporary
electricity use agreements with them.
The electricity supply to
Ennerdale Mansions has not been reconnected. The applicants have
been without electricity for some
12 months. Many tenants have left
the building because the living conditions have become intolerable
as a consequence of the
termination of the electricity supply.
Those who have remained – that is, the six applicants before this
Court – have continued
to live there because it is the most
affordable family accommodation in the area. They cannot afford to
leave.
Proceedings in the High Court
The application to the High Court was brought in two
parts. First, an urgent application was brought for the immediate
reconnection
of the electricity supply to Ennerdale Mansions. This
application was dismissed by Tsoka J on the basis that the
applicants
had failed to establish a
prima facie
right. The
applicants proceeded to bring an application before Jajbhay J in
which they again sought reconnection of the electricity
supply and
an order declaring that the disconnection without notice to the
tenants of Ennerdale Mansions was procedurally unfair
in terms of
section 3(2)(b) of the Promotion of Administrative Justice Act 3 of
2000 (PAJA).
5
The applicants also challenged the constitutionality of certain of
the City’s by-laws.
6
The High Court found similarly that no rights of the applicants
were affected and that they were therefore not entitled to

reconnection of their electricity.
The High Court considered the
provisions of municipal by-laws regulating the supply of
electricity – namely, the Electricity
By-laws
7
and the Credit Control By-laws.
8
It found that the Electricity By-laws had been impliedly repealed
by the promulgation of the Credit Control By-laws and therefore
did
not have to be considered. With regard to the Credit Control
By-laws, it found that the applicants did not fall within
its
provisions and were not entitled to the pre-termination notice
required to be given to “customers”. It found further
that to
the extent that the Credit Control By-laws did limit any of the
applicants’ rights, that was justified under section
36 of the
Constitution.
9
Submissions in this Court
In this Court, the applicants sought essentially the
same relief as that sought in the High Court. In arguing that
section 3
of PAJA applies, the applicants did not raise a claim
based on any legitimate expectation, but argued that their
rights
were materially and adversely affected by the termination of
electricity supply. They relied on three rights to support this

claim: (i) their right of access to adequate housing under section
26 of the Constitution;
10
(ii) their right to human dignity under section 10 of the
Constitution;
11
and (iii) their contractual right to electricity in terms of their
contract of lease with Mr Nel.
In view of the High Court’s
finding that by-law 14 of the Electricity By-laws had been
impliedly repealed, the applicants
did not persist in challenging
its validity. They did, however, challenge the constitutional
validity of by-law 15 of the Credit
Control By-laws inasmuch as it
permits the termination of electricity supply to a building or
residence without affording notice
and an opportunity to make
representations to occupants with whom the service provider has no
contractual relationship.
By-law 15 provides, in relevant
part, as follows:
“
(2) Subject to the provisions
of subsection (4), the Council may terminate or restrict the
provision of water or electricity,
or both, whichever service is
relevant, in terms of the termination and restriction procedures
prescribed or contained in
any law, to any premises if the
customer in respect of the municipal service concerned—
. . . .
(c) fails to comply with any condition or provision
in respect of the supply of electricity or water, as the case
may
be, imposed by the Council;
. . . .
(f) causes a situation relating to electricity or
water which, in the opinion of the Council, is dangerous or
constitutes
a contravention of any applicable law, including the
common law;
. . . .
(3) The Council may send a termination notice or a
restriction notice to a customer informing him or her—
(a) that the provision of the municipal service
concerned will be, or has been terminated or restricted on the
date specified
in such notice; and
(b) of the steps which can be taken to have the
municipal service concerned reinstated.
(4) Any action taken in terms of subsections (2) and
(3) is subject to compliance with
. . . .
(d) the Promotion of Administrative Justice Act,
2000 (Act No. 3 of 2000) in so far as it is applicable.”
“
Customer” is defined in the Credit Control
By-laws as—
“
any occupier of premises to
which the Council has agreed to provide or is actually providing
any municipal service, or if there
is no occupier, the owner of the
premises concerned”.
The thrust of the respondents’ position was that no
specific right of the applicants was infringed by the disconnection
and
that, as a result, the procedural protections of PAJA do not
come into play. The respondents submitted that the Credit Control

By-laws do not apply to the applicants to afford them the
pre-termination notice due to “customers”, as this would
undermine
the City’s debt-collection policy embodied in the
Credit Control By-laws. Any limitation of a right to procedural
fairness
that the applicants may have, the respondents contended,
is justifiable under section 36 of the Constitution.
Constitutional issue and leave to
appeal
Before I deal with the issues that arise for
determination, it is necessary to set out my reasons for granting
leave to appeal.
This case concerns the interpretation of PAJA and
its application to municipal by-laws. The interpretation and
application
of PAJA necessarily raise a constitutional issue.
12
The respondents opposed the
applicants’ coming directly to this Court on the basis that the
issues raised fall to be determined
primarily by principles of the
law of contract, and accordingly argued that the matter should
first be considered by the Supreme
Court of Appeal. I am of the
view that this matter concerns the relationship between a public
service provider and consumers
with whom it has no contractual
relationship, and that principles of administrative and
constitutional law – and not the
law of contract – govern the
issues that arise.
Furthermore, I am not persuaded
that other remedies are reasonably available to the applicants
vis-à-vis
the first and second respondents. The applicants
may well have common law remedies against Mr Nel. However, this
does not preclude
them from pursuing public law remedies against
the City and City Power. There has already been a long delay in the
resolution
of this matter and any further delay would be
prejudicial to the applicants who have been living without
electricity for more
than 12 months. It is further important for
City Power, as a major service provider, to have clarity in respect
of obligations
it owes to users of services. It is therefore
appropriate for this Court to hear the matter directly.
I conclude, therefore, that a
constitutional issue has been raised and that it is in the
interests of justice for leave to appeal
to be granted.
The issues for determination
The primary issue to be addressed in this case is
whether the applicants were entitled to procedural fairness under
section
3 of PAJA before City Power terminated the electricity
supply to Ennerdale Mansions. If section 3 of PAJA is found to
apply,
the following secondary issues arise for determination:
the content of procedural
fairness required in the circumstances of this case;
whether the Electricity By-laws were impliedly
repealed by the Credit Control By-laws, and if not, whether the
Electricity By-laws
can be read consistently with PAJA; and
whether the Credit-Control By-laws can be read
consistently with PAJA.
The conceptual framework
It is important at the outset to explain what was, in
my view, a misapprehension affecting the reasoning of the High
Court.
Rather than adopting PAJA as the starting point, the High
Court began its enquiry with the Credit Control By-laws. It focused

its attention on whether, for the purposes of the Credit Control
By-laws, the applicants were “customers” as defined therein,

and whether they were therefore entitled to the protections of
PAJA. The High Court failed to take account of the role that
PAJA
may play in respect of persons who have no contractual relationship
with the service provider, and whom it does not regard
to be
“customers”.
Moreover, in viewing the issues
through an entirely contractual lens, the High Court misdirected
itself insofar as it failed
to take account of the link between the
contractual relationship between Mr Nel and the applicants on the
one hand, and that
between Mr Nel and City Power on the other. Mr
Nel concluded a contract as a “customer” with City Power for
the sole purpose
of facilitating the supply of electricity to
tenants in his building. He was a conduit. In supplying electricity
to Ennerdale
Mansions, City Power knew that it was providing
electricity to tenants living in the building. It is therefore, in
my view,
artificial to think of the contractual relationship
between Mr Nel and City Power as being unrelated to the benefits
that accrued
to the applicants under this contract.
The starting point should
therefore be whether any “rights” of the applicants have been
affected as that term is understood
in PAJA, and if so, whether the
relevant municipal by-laws can be read consistently with PAJA. The
focus of the enquiry therefore
is the relationship, if any, between
City Power as a public service provider and users of the service
with whom it has no formal
contractual relationship. This is
similar to the approach adopted by Sachs J in
Residents of Joe
Slovo
,
13
in which the lawfulness of the occupation of municipal council land
by homeless families was considered. Sachs J observed
that
this question—
“
must be located not in the
framework of the common law rights of landowners, but in the
context of the special cluster of legal
relationships between the
council and the occupants established by the Constitution and the
Housing Act. . . . The very manner
in which these relationships are
established and extinguished will be different from the manner in
which these relationships
might be created by the common law . . .
. They flow instead from an articulation of public responsibilities
. . . and possess
an ongoing, organic and dynamic character that
evolves over time.”
14
(Footnote omitted.)
I am of the view that this case is similarly about the
“special cluster of relationships” that exist between a
municipality
and citizens, which is fundamentally cemented by the
public responsibilities that a municipality bears in terms of the
Constitution
and legislation in respect of the persons living in
its jurisdiction. At this level, administrative law principles
operate
to govern these relations beyond the law of contract.
Were the applicants entitled to
procedural fairness under section 3 of PAJA?
The respondents accepted that the decision to
terminate the electricity supply constituted administrative action
vis-à-vis
Mr Nel with whom City Power contracted to provide
electricity. They further accepted that Mr Nel, as a “customer”
of City
Power, was entitled to notice before the disconnection of
electricity supply, which notice he duly received. The respondents
contended, however, that the decision did not constitute
administrative action
vis-à-vis
the applicants and that no
procedural fairness duties arose toward them, as the decision (i)
had no “direct, external legal
effect” and (ii) did not
materially and adversely affect any of their “rights” as
tenants. These contentions are addressed
in turn.
“
Direct, external legal effect”
The qualifying phrase “direct, external legal
effect” appears in the definition of administrative action under
section 1
of PAJA.
15
I need do no more on the facts of this case than endorse the broad
interpretation accorded to this phrase by the Supreme Court
of
Appeal in
Grey’s Marine
,
16
where it stated that the phrase “serv[es] to emphasise that
administrative action impacts directly and immediately on

individuals.”
17
Indeed, a finding that the rights of the applicants were materially
and adversely affected for the purposes of section 3 of
PAJA would
necessarily imply that the decision had a “direct, external legal
effect” on the applicants. Conversely, a finding
that the rights
of the applicants were not materially and adversely affected would
have the result that section 3 of PAJA would
not apply – barring,
of course, a claim based on a legitimate expectation which was not
raised in this case.
It was argued by the respondents
that the ambit of “legal effect” ought not to be conceptualised
too broadly, lest it lead
to administrative paralysis.
Specifically, the respondents argued that as no contractual nexus
existed between the applicants
and City Power, the termination of
electricity supply by City Power could not be said to affect the
legal rights of the applicants
directly, but rather that the
causa
of any harm suffered by the applicants was the default of the
landlord. On this basis, the respondents argued that the decision

taken by City Power to terminate the electricity supply did not
constitute administrative action as defined under section 1
of
PAJA.
The spectre of administrative
paralysis raised by the respondents is a legitimate concern.
18
Administrative efficiency is an important goal in a democracy,
19
and courts must remain vigilant not to impose unduly onerous
administrative burdens on the state bureaucracy. In my view,
however, the issue of administrative efficiency primarily informs
the content of the duties imposed under administrative law
rather
than the scope of the application of administrative law.
20
The latter is fundamentally determined by the relationship that
exists between the administrative state and its citizens and
should
not be strictly delimited. The practical concerns raised by the
respondents thus should not be decisive in determining
the scope of
administrative action, but must inform the content of procedural
fairness.
I turn now to consider whether
any rights of the applicants were materially and adversely affected
by the termination of electricity
supply to Ennerdale Mansions.
Rights materially and adversely
affected
Section 3(1) of PAJA requires procedural fairness not
only in the event of a “breach” of a right, but whenever
administrative
action “materially and adversely affects” a
right or legitimate expectation of any person.
21
This distinction is significant on the facts of this case, as the
applicants concede that the termination of electricity supply
did
not breach, but materially and adversely affected, their rights.
Taking the phrase “materially and adversely affects”
simply to
mean that the administrative action had a significant and not
trivial effect,
22
I accept that, in the circumstances of this case, if any rights of
the applicants were affected, such effect was material and
adverse.
The key question then is whether any
rights
of the
applicants have been affected by the termination of electricity
supply.
The applicants relied principally
on the right of access to adequate housing in section 26(1) of the
Constitution. Invoking
the decision of this Court in
Jaftha
,
23
the applicants contended that the termination of electricity supply
constituted a retrogressive measure which violated the
negative
obligation to respect the right of access to adequate housing and
which, consequently, materially and adversely affected
their
constitutional right to housing for the purposes of PAJA. In the
view I take of the matter it is not necessary to address
this
contention. Similarly, it is not necessary to consider the right to
human dignity
24
as a self-standing right for the purposes of section 3 of PAJA. I
am also not persuaded that any rights which the applicants
hold
against Mr Nel under their contract of lease have been affected by
City Power’s decision to terminate the electricity
supply to
Ennerdale Mansions.
The real issue is whether the
broader constitutional relationship that exists between a public
service provider and the members
of the local community gives rise
to rights that require the application of section 3 of PAJA.
The “right” to receive
electricity as a basic municipal service
The provision of basic municipal services is a
cardinal function, if not the most important function, of every
municipal government.
The central mandate of local government is to
develop a service delivery capacity in order to meet the basic
needs of all inhabitants
of South Africa, irrespective of whether
or not they have a contractual relationship with the relevant
public service provider.
The respondents accepted that the
provision of electricity is one of those services that local
government is required to provide.
Indeed they could not have
contended otherwise. In
Mkontwana
,
25
Yacoob J held that “municipalities are
obliged
to provide
water and
electricity
to the residents in their area
as a
matter of public duty
.”
26
Electricity is one of the most common and important basic municipal
services and has become virtually indispensable,
27
particularly in urban society.
The obligations borne by local
government to provide basic municipal services are sourced in both
the Constitution and legislation.
Section 152(1) of the
Constitution sets out the objects of local government in general
terms, and creates an overarching set
of constitutional obligations
that are to be achieved in accordance with section 152(2). Section
152 of the Constitution provides:
“
(1) The objects of local
government are—
to provide democratic and accountable government for
local communities;
to ensure the provision of services to communities in
a sustainable manner;
to promote social and economic development;
to promote a safe and healthy environment; and
to encourage the involvement of communities and
community organisations in the matters of local government.
(2) A municipality must strive,
within its financial and administrative capacity, to achieve the
objects set out in subsection
(1).”
In addition to these objects of
local government, the Constitution specifically entrenches the
developmental duties of municipalities.
Under section 153, a
municipality is obliged to prioritise the basic needs of the
community and to promote the social and economic
development of the
community.
28
The Local Government: Municipal
Systems Act 32 of 2000 (Municipal Systems Act) gives legislative
content to the various constitutional
duties of local government.
Section 4(2) of the Municipal Systems Act sets out the duties of
municipal councils, which exercise
the executive and legislative
authority at municipal level. In particular, section 4(2)(f)
provides as follows:
“
(2) The council of a
municipality, within the municipality’s financial and
administrative capacity and having regard to
practical
considerations, has the duty to—
. . . .
give members of the local
community equitable access to the municipal services to which they
are entitled”.
Further content is given to the
general duty of a municipality to provide municipal services under
section 73 of the Municipal
Systems Act, which provides:
“
(1) A municipality must give
effect to the provisions of the Constitution and—
give priority to the basic needs of the local
community;
promote the development of the local community; and
ensure that all members of the local community have
access to at least the minimum level of basic municipal services.
(2) Municipal services must—
be equitable and accessible;
be provided in a manner that is conducive to—
the prudent, economic,
efficient and effective use of available resources; and
the improvement of standards of quality over time;
be financially sustainable;
be environmentally sustainable; and
be regularly reviewed with a view to upgrading,
extension and improvement.”
Finally, the
Housing Act 107 of
1997
imposes a specific obligation on municipalities to provide
basic municipal services, including electricity.
Section
9(1)(a)(iii)
provides:
“
(1) Every municipality must,
as part of the municipality’s process of integrated development
planning, take all reasonable
and necessary steps within the
framework of national and provincial housing legislation and
policy to—
ensure that—
. . . .
services in respect of water,
sanitation, electricity, roads, storm-water drainage and transport
are provided in a manner which
is economically efficient”.
Taken together, these provisions
impose constitutional and statutory obligations on local government
to provide basic municipal
services, which include electricity. The
applicants are entitled to receive these services. These rights and
obligations have
their basis in public law. Although, in contrast
to water,
29
there is no specific provision in respect of electricity in the
Constitution, electricity is an important basic municipal service

which local government is ordinarily obliged to provide. The
respondents are certainly subject to the duty to provide it.
Whether the correlative public law right is sufficient to entitle
persons to procedural fairness under section 3(1) of PAJA
needs to
be considered however. It is to this question that I now turn.
A proper interpretation of
“rights” under section 3(1) of PAJA
Section 3(1) of PAJA provides that “[a]dministrative
action which materially and adversely affects the rights or
legitimate
expectations of any person must be procedurally fair”.
The structure of section 3(1) is important as it is indicates the

broad application of the procedural fairness provisions under PAJA.
In
Walele
,
30
in considering a procedural fairness claim based on an alleged
legitimate expectation, this Court emphasised that section 3
of
PAJA must be interpreted generously to give proper effect to
section 33(1) of the Constitution.
31
O’Regan J, writing for the minority, observed that “[w]e must
be careful, in construing section 3(1), to bear in mind that
it is
the key provision in PAJA that gives effect to the right entrenched
in section 33(1) of the Constitution.”
32
Both this Court and the Supreme
Court of Appeal have already expressed support, albeit
obiter
,
for a purposive approach to the concept of “rights” under
section 3 of PAJA.
33
In
Premier, Mpumalanga
,
34
O’Regan J remarked that “[i]t may be that a broader notion of
‘right’ than that used in private law may well be

appropriate”.
35
The importance of procedural fairness is well described by Hoexter:
“
Procedural fairness . . . is
concerned with giving people an opportunity to participate in the
decisions that will affect them,
and – crucially – a chance of
influencing the outcome of those decisions. Such participation is a
safeguard that not only
signals respect for the dignity and worth
of the participants, but is also likely to improve the quality and
rationality of
administrative decision-making and to enhance its
legitimacy.”
36
In my view, proper regard to the import of the right
to administrative justice in our constitutional democracy confirms
the
need for an interpretation of rights under section 3(1) of PAJA
that makes clear that the notion of “rights” includes not
only
vested, private law rights but also legal entitlements that have
their basis in the constitutional and statutory obligations
of
government. The preamble of PAJA gives expression to the role of
administrative justice and provides that the objectives
of PAJA are
inter alia
to “promote an efficient administration and
good governance” and to “create a culture of accountability,
openness and
transparency in the public administration or in the
exercise of a public power or the performance of a public
function”.
These objectives give expression to the founding
values in section 1 of the Constitution, namely that South Africa
is founded
on the rule of law and on principles of democratic
government to ensure accountability, responsiveness and openness.
37
In enumerating the basic values
and principles governing public administration, section 195(1) of
the Constitution affirms our
constitutional commitment to a
responsive and accountable public administration.
38
In respect of procedural fairness, the following principles are
particularly relevant:
“
. . . .
Services must be provided
impartially, fairly, equitably and without bias.
People’s needs must be responded to, and the public
must be encouraged to participate in policy-making.
Public administration must be accountable.
Transparency must be fostered by providing the public
with timely, accessible and accurate information.”
The right to administrative
justice is fundamental to the realisation of these constitutional
values, and is at the heart of
our transition to a constitutional
democracy. The scope of the section 33 right to just administrative
action and the associated
constitutional values, as given effect to
under PAJA, must cover the field of public administration and
bureaucratic practice
in order properly to instrumentalise
principles of good governance. It is plain that the reach of
administrative law would
be unjustifiably curtailed if it did not
regulate administrative decisions which affect the enjoyment of
rights, properly understood,
at least for the purposes of
procedural fairness.
Taken together, the values and
principles described above require government to act in a manner
that is responsive, respectful
and fair when fulfilling its
constitutional and statutory obligations. This is of particular
importance in the delivery of
public services at the level of local
government. Municipalities are, after all, at the forefront of
government interaction
with citizens. Compliance by local
government with its procedural fairness obligations is crucial
therefore, not only for the
protection of citizens’ rights, but
also to facilitate trust in the public administration and in our
participatory democracy.
39
In my view therefore, when City
Power supplied electricity to Ennerdale Mansions, it did so in
fulfillment of the constitutional
and statutory duties of local
government to provide basic municipal services to all persons
living in its jurisdiction. When
the applicants received
electricity, they did so by virtue of their corresponding public
law right to receive this basic municipal
service. In depriving
them of a service which they were already receiving as a matter of
right, City Power was obliged to afford
them procedural fairness
before taking a decision which would materially and adversely
affect that right.
Before turning to consider what
procedural fairness requires in the circumstances of this case, it
is necessary to address the
respondents’ contention that any
non-compliance with PAJA was justified by the City’s credit
control and debt-collection
policy.
Was City Power’s failure to apply
PAJA justifiable?
The respondents disavowed any
reliance on section 3(4) of PAJA since they maintained that PAJA
was not applicable in respect
of the applicants.
40
The respondents argued in the alternative, however, that if this
Court found PAJA to be applicable, any failure to comply with
its
provisions and consequent infringement of section 33 of the
Constitution was justifiable under section 36.
They further maintained that any
right to receive electricity as a basic municipal service is
qualified by the municipality’s
constitutional and statutory
obligations to provide public services in a financially sustainable
manner.
41
City Power contended that the requirement of financial
sustainability necessitates the development and enforcement of
credit
control and debt-collection policies by municipalities. To
this end, the City passed the Credit Control By-laws which oblige
it and its service providers to give pre-termination notice only to
“customers” as defined therein. The respondents contended
that
to the extent that the Credit Control By-laws may limit the right
of non-customers to just administrative action, such
limitation is
justified under section 36 of the Constitution.
Nothing in this judgment should
be taken to suggest a failure to appreciate the importance of debt
collection by local government.
The outstanding debts of City Power
are staggering. The importance of debt collection by municipalities
was emphasised by this
Court in
Mkontwana
, where Yacoob J
stated that it is “important for unpaid municipal debt to be
reduced by all legitimate means.”
42
In a separate concurring judgment, O’Regan J affirmed that
“[t]here can be no doubt that municipalities bear an important

constitutional obligation and a statutory responsibility to take
appropriate steps to ensure the efficient recovery of debt.”
43
In addition, rights entail responsibilities. Citizens
who can, must take responsibility for paying for services provided
to
them in fulfilment of government’s statutory and
constitutional obligations. Government is entitled to require this
of citizens.
Moreover, government regulation is implicit in the
notion of providing electricity.
It seems to me, however, that
City Power’s reliance on the necessity for debt collection as a
means of justifying its non-compliance
with PAJA lacks logic. City
Power seeks to collect an outstanding debt not from the applicants
but from Mr Nel. The use of
the applicants as leverage for the
payment of Mr Nel’s debts was both ineffective and unjust.
44
Affording the applicants procedural fairness prior to termination
would have had no effect on City Power’s ability to collect
the
debt owed by Mr Nel. If anything, pre-termination notice may have
facilitated a joint endeavour to recover the arrears
or to reach
agreement on an alternative payment arrangement.
Arguably, at the pre-termination
stage, it remained open to City Power and the applicants to arrange
for direct billing or some
other means of payment, at least for the
future supply of electricity. Such negotiations, it seems, are not
prohibited by the
Credit Control By-laws, which restrict the
entering into direct-billing arrangements pending the payment of
arrears only at
the post-termination stage.
45
The general rationale for, and
legitimacy of, disconnecting a user’s electricity supply as a
debt-collection mechanism aimed
at recovering a debt from someone
entirely different has, however, not been challenged in this case.
Accordingly, the issue
this litigation presents is
not
whether the effect and reach of the debt-collection policy
informing the Credit Control By-laws is justifiable, but more

narrowly, whether users of municipal services are entitled to
procedural fairness when decisions that adversely affect the

municipal services they are receiving are taken. It remains open to
the applicants to challenge the debt-collection policy underpinning

the Credit Control By-laws, and specifically by-law 16, in future
proceedings.
What procedural fairness requires
in the circumstances of this case
This Court has consistently held
that fairness needs to be determined in the light of the
circumstances of a particular case.
As Ngcobo J stated in
Zondi
,
“[t]he overriding consideration will always be what does fairness
demand in the circumstances of a particular case.”
46
Section 3(2)(a) of PAJA reiterates this cardinal principle. This
provision is followed by section 3(2)(b) of PAJA which enumerates
a
set of minimum requirements that an administrator “must” extend
to any person entitled to procedural fairness under section
3(1).
These requirements include “adequate notice of the nature and
purpose of the proposed administrative action” and
“a
reasonable opportunity to make representations”.
47
Section 3(4)(a) allows for departure from the minimum requirements
of section 3(2)(b) by providing that “[i]f it is reasonable
and
justifiable in the circumstances, an administrator may depart from
any of the requirements referred to in subsection (2)”,
while
section 3(4)(b) sets out the factors that an administrator must
take into account in determining whether a departure
is “reasonable
and justifiable”.
48
As noted above, the respondents
have not invoked section 3(4) to justify their failure to comply
with the requirements under
section 3(2)(b). A literal reading of
PAJA suggests that the minimum requirements under section 3(2)(b)
are mandatory and must
be enforced absent any departure by the
administrator in terms of section 3(4). A Court would, on this
reading, only be entitled
to review a procedure that does not meet
the minimum requirements of section 3(2)(b) when the administrator
takes a decision
in terms of section 3(4) to depart from these
requirements and when such decision is taken on review.
In my view, such an
interpretation fails to take proper account of the variability
inherent in the concept of procedural fairness.
A literal approach to section 3
of PAJA would hamstring the courts in cases such as this one, where
an administrator fails to
recognise that it is bound by the
procedural fairness requirements under PAJA, and at the same time
seeks guidance from the
Court as to what procedural fairness
requires in the circumstances. It would, moreover, result in
circuitous litigation if
this Court were to postpone considering
the reasonableness of departing from the minimum requirements until
the administrator
acts under section 3(4) and such decision is
taken on review. Section 3(2)(a) must therefore be read as an
empowering provision
that allows courts to exercise a discretion in
enforcing the minimum procedural fairness requirements under
section 3(2)(b).
The applicants argued that the
circumstances of this case required pre-termination notice and an
opportunity to make representations.
They submitted that the
posting of a written notice in a prominent place in Ennerdale
Mansions would suffice to constitute
“adequate notice” for the
purposes of section 3(2)(b)(i) of PAJA. The respondents conceded
that the form of notice sought
by the applicants would not place
too onerous an administrative burden on City Power.
I agree that affording notice to
the applicants would not undermine City Power’s ability to
provide an efficient service.
Accordingly, City Power must afford
the applicants pre-termination notice. For the notice to be
“adequate” it must contain
all relevant information, including
the date and time of the proposed disconnection, the reason for the
proposed disconnection,
and the place at which the affected parties
can challenge the basis of the proposed disconnection. Moreover, it
must afford
the applicants sufficient time to make any necessary
enquiries and investigations, to seek legal advice and to organise
themselves
collectively if they so wish. At a minimum, it seems to
me that 14 days’ pre-termination notice is fair, and is
consistent
with the provisions of the Credit Control By-laws.
More difficult however is the
requirement of representations. The respondents contested the
reasonableness of requiring City
Power to receive representations
on the basis that it would impose an undue burden on its human
resources and administrative
capacity. Efficiency and capacity
considerations are indeed an important aspect of any contextual
determination of the content
of procedural fairness. This was
expressly recognised in
Premier, Mpumalanga
49
where this Court stated:
“
In determining what
constitutes procedural fairness in a given case, a court should be
slow to impose obligations upon government
which will inhibit its
ability to make and implement policy effectively (a principle well
recognised in our common law and
that of other countries). As a
young democracy facing immense challenges of transformation, we
cannot deny the importance of
the need to ensure the ability of the
Executive to act efficiently and promptly.”
There must be hundreds of thousands of tenants in the
City who receive electricity pursuant to a contract between their
landlords
and City Power. I accept that City Power’s
administrative capacity would be unduly strained if it were
required in every
case to process representations from tenants. The
nature of the notice described above implies that, upon receiving
the notice,
it remains open to users to approach City Power to
challenge the proposed termination or to tender appropriate
arrangements
to pay off arrears.
50
It is, however, incumbent on the applicants to approach City Power
within the notice period to raise any challenges they may
have.
Where a grievance is valid, rendering the proposed disconnection
untenable, or where suitable payment is made, it must
be presumed
that City Power, acting in good faith, would not proceed to effect
the proposed disconnection.
City Power has committed to
engaging with the applicants. This attitude is consistent with that
which would be required of the
City in circumstances where persons
in the position of the applicants lodge a valid grievance following
receipt of a pre-termination
notice. It is manifestly just that
City Power engage with the applicants, and any engagement which
would contribute to a sustainable
solution is to be wholeheartedly
supported.
The only remaining question is
whether the Electricity By-laws and the Credit-Control By-laws can
be read consistently with
PAJA, or whether a declaration of
invalidity is necessary.
Application of PAJA to the By-laws
As noted above, by-law 14 of the Electricity By-laws
was not expressly challenged before this Court, since the parties
proceeded
on the High Court’s finding that it had been impliedly
repealed by the Credit Control By-laws. I do not think that this
finding
was correct, however. Indeed, by-law 15(2) of the Credit
Control By-laws provides
inter alia
that the Council may
terminate or restrict the provision of electricity “in terms of
the termination and restriction procedures
prescribed or
contained in any law
”.
51
This provision appears to provide for the continued application of
by-law 14 of the Electricity By-laws, despite the later
enactment
of the Credit Control By-laws.
The common law rule of implied
revocation provides that where there is an irreconcilable conflict
between two enactments, the
later enactment will take precedence
over the earlier one. However, this rule is applied with
circumspection in the light of
the presumption that the Legislature
does not intend to alter the existing law more than is necessary.
52
It should thus not readily be inferred that a law has been
impliedly repealed. This is important for certainty in our law.
53
Absent a clear and unequivocal legislative intention to repeal, I
am of the view that the High Court misdirected itself in
finding
that the Electricity By-laws were impliedly repealed by the passing
of the Credit Control By-laws.
Before the High Court, City Power
invoked by-law 14 as valid and effective, and denied that it had
been impliedly repealed by
the Credit Control By-laws. City Power
further submitted that by-law 14(1) could be read in line with the
Constitution. The
interpretation and validity of by-law 14 thus
remain at issue and must be addressed.
By-law 14(1) of the Electricity
By-laws provides:
“
When any charges due to the
council for or in connection with electricity supplied are in
arrear, the council may at any time
without
notice
disconnect the supply to the
electrical installation concerned or any part thereof until such
charges together with the reconnection
charge determined by the
council are fully paid.” (My emphasis.)
As is plain from the wording of the provision, by-law
14(1) of the Electricity By-laws allows the Council to dispense
with the
obligation to afford pre-termination notice to those
affected by such termination. In affording the Council this
discretion,
by-law 14(1) is clearly inconsistent with the
procedural fairness requirements under section 3(2)(b) of PAJA, and
is therefore
also inconsistent with section 33(1) of the
Constitution. City Power did not proffer any justification for the
limitation of
the right to just administrative action. Indeed, City
Power reasoned that the Electricity By-laws had been impliedly
repealed.
Given that by-law 14(1) of the
Electricity By-laws is still on the municipal statute book and is
inconsistent with the Constitution
to the extent that it permits
disconnection “without notice”, it falls to be declared
unconstitutional and therefore invalid.
The words “without
notice” must be severed from by-law 14(1). An order of invalidity
coupled with severance is therefore
appropriate. Naturally, the
provision, in its severed form, must be read in the light of PAJA.
I turn now to by-law 15(3) of the
Credit Control By-laws which, on one reading, similarly affords the
City Council or its designated
service provider discretion to give
pre-termination notice to a “customer”. By-law 15(3) provides
that the City Council
“
may
send a termination notice . . .
to a customer” where the City wishes to terminate supply. Were
the provisions of by-law 15(3)
to be interpreted to afford the City
Council discretion to give notice to a “customer”, it would be
in conflict with the
Constitution, as this judgment has made plain.
The respondents acknowledged this, and welcomed an interpretation
that made
a notice mandatory in respect of “customers”.
The Credit Control By-laws expressly require that
by-law 15(3) must be interpreted in the context of by-law 15(4)(d),
which
stipulates that any action taken in terms of by-law 15(2) and
(3) must be subject to PAJA “in so far as it is applicable”.
In
my view, “may” can be read as “must” in accordance with
PAJA – a reading that is to be preferred because it produces
a
constitutional result. Read in this light, “may” in by-law
15(3) is understood to
signify an
authorisation to exercise a power coupled with a
duty to do
so when the requisite circumstances are present.
54
Lastly, the applicants’
submission in respect of the definition of “customer” in the
Credit Control By-laws needs to be
addressed.
55
The applicants submitted that the by-law definition of “customer”
could be read broadly to include consumers of a service
who have no
contractual relationship with the service provider. Such a reading
would in my view render the Credit Control By-laws
unworkable. The
proposed meaning cannot reasonably apply to “customer” as used
in other provisions of the By-laws – particularly,
by-laws
3(1)(c),
56
7(1)(b),
57
11(1),
58
13(1),
59
15(2)(a)
60
and 21(1)
61
– which are directed at regulating a contractual relationship
between a service provider and a paying customer in the context
of
debt-collection and credit control. I agree with the respondents’
submission that the phrase “or is actually providing
a municipal
service” in the definition of “customer” must be interpreted
as catering for situations where the municipality
has supplied a
service under a
bona fide
but erroneous belief that a
contract existed. This interpretation accords with the purpose of
the Credit Control By-laws, which
are aimed at credit control and
the recovery of arrears.
It is not necessary to extend the
definition of “customer” to include persons with whom the
service provider has no contractual
relationship. To do so would
strike at the integrity of the Credit Control By-laws. However, as
is evident from what has been
said above, persons in the position
of the applicants, who are not “customers” for the purposes of
the Credit Control By-laws,
are entitled to procedural fairness
where their rights are materially and adversely affected by the
termination of a municipal
service. By-law 15(3) must accordingly
be read with by-law 15(4)(d) and in the light of PAJA to require
that pre-termination
notice
must
be sent to all persons
whose rights may be materially and adversely affected by the
termination of a municipal service. Practically,
this reading
protects the procedural fairness rights of affected persons,
without obstructing the City’s credit control and
debt-collection
policies.
In the result, therefore, by-law
14(1) of the Electricity By-laws falls to be declared invalid to
the extent that pre-termination
notice to “customers” is not
mandatory. To the extent that by-law 15(3) limits the right to
pre-termination notice to “customers”,
the by-law must be read
with by-law 15(4)(d) and in the light of PAJA to extend the right
to mandatory pre-termination notice
to any person whose rights may
be materially and adversely affected by the termination.
Costs
It is clear that the applicants
have been successful, and they have sought to vindicate their
rights against a local government
entity. Following this Court’s
approach to costs in matters between a private litigant and an
organ of state,
62
the applicants are entitled to their costs, and in my view such
costs should include the costs in both this Court and in the
High
Court.
Order
In the event, the following order
is made:
The application for leave to
appeal is granted.
The appeal is upheld and the order of the South
Gauteng High Court, Johannesburg in
Darries and Others v City
of Johannesburg and Others
, delivered on 3 April 2009 under
Case No 08/22689, is set aside.
The termination of electricity supply to Ennerdale
Mansions on 8 July 2008 is declared to be unlawful.
The respondents are ordered to reconnect the
electricity supply to Ennerdale Mansions forthwith.
The words “without notice” in by-law 14(1) of the
Greater Johannesburg Metropolitan Council: Standardisation of
Electricity
By-laws (
Provincial Gazette
(Gauteng), GG 16 G
N
1610, 17 March 1999), published
in terms of section 101 of
the Local Government Ordinance 17 of 1939, are declared to be
unconstitutional and invalid and
are severed from by-law 14(1).
The respondents are ordered to pay the costs of the
applicants in both the High Court and in this Court, such costs to
include
the costs consequent upon the employment of two counsel.
Langa CJ, Moseneke DCJ, Cameron J,
Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J and Van der
Westhuizen J concur in
the judgment of Skweyiya J.
For the Applicants:
For the First and Second Respondents:
Advocate S Budlender and Advocate
A Friedman instructed by the Centre for Applied Legal
Studies/Wits Law Clinic.
Advocate R Sutherland SC, Advocate NM
Maenetje and Advocate Z Khan instructed by Mokhatla Attorneys.
1
Case
No 08/22689, 3 April 2009, as yet unreported. To be reported as
Darries and Others v City of Johannesburg and Others
2009 (5)
SA 284
(GSJ). Ms Darries is no longer an applicant.
2
The
Commission is one of the institutions created under Chapter 9 of the
Constitution to strengthen constitutional democracy.
The functions
of the Commission are set out in section 184 of the Constitution and
include promoting respect for human rights,
promoting the
protection, development and attainment of human rights, and
monitoring the observance of human rights in the Republic.
3
The
Tribunal was established by the
Rental Housing Act 50 of 1999
. The
Tribunal is a quasi-judicial body which serves a regulatory
function. This includes
inter
alia
setting
out guidelines which have to be followed when parties enter into
rental agreements and resolving disputes that arise between

landlords and tenants.
4
The
University of the Witwatersrand Law Clinic provides free
professional legal assistance to persons who cannot afford private

legal representation.
5
Section
3
of PAJA provides:
“
(1)
Administrative action
which materially and
adversely affects the rights or legitimate expectations of any
person must be procedurally fair.
(a)
A
fair administrative procedure depends on the circumstances of each
case.
In order to
give effect to the right to procedurally fair administrative
action, an
administrator
, subject
to subsection (4), must give a perso
n
referred to in subsection (1)—
adequate notice of the nature
and purpose of the proposed administrative action;
a reasonable opportunity to
make representations;
a clear statement of the
administrative action;
adequate notice of any right of
review or internal appeal, where applicable; and
adequate
notice of the right to request reasons in terms of
section
5
.
In
order to give effect to the right to procedurally fair
administrative action, an administrator may, in his or her or its

discretion, also give a person referred to in s
ubsection
(1) an opportunity to—
obtain assistance and, in serious
or complex cases, legal representation;
present and dispute information
and arguments; and
appear in person.
(a)
If
it is reasonable and justifiable in the circumstances, an
administrator may depart from any of the requirements referred
to
in subsection (2).
In determining whether a
departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take
into account all relevant
factors, including—
the objects
of the
empowering
provision
;
the nature and purpose of, and
the need to take, the administrative action;
the likely effect of the
administrative action;
the urgency of taking the
administrative action or the urgency of the matter; and
the need to promote an efficient
administration and good governance.
Where an administrator is
empowered by any empowering provision to follow a procedure which
is fair but different from the provisions
of subsection (2), the
administrator may act in accordance with that different procedure.”
6
In
particular, the applicants challenged by-law 14(1) of the Greater
Johannesburg Metropolitan Council: Standardisation of Electricity

By-laws,
Provincial Gazette
(Gauteng), GG 16 G
N
1610, 17 March 1999, published in terms of section 101 of the Local
Government Ordinance 17 of 1939 and by-law 15 of the
City of
Johannesburg Metropolitan Municipality: Credit Control and Debt
Collection By-laws,
Provincial Gazette Extraordinary
(Gauteng),
GG 213 GN 1857, 23 May 2005, published in terms of
section 13(a)
of
the
Local Government: Municipal Systems Act 32 of 2000
.
7
Above
n 6.
8
Above
n 6.
9
Section
36 of the Constitution provides:
“
(1) The rights in the Bill of
Rights may be limited only in terms of law of general application
to the extent that the limitation
is reasonable and justifiable in
an open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
the nature of the right;
the importance of the purpose of
the limitation;
the nature and extent of the
limitation;
the relation between the
limitation and its purpose; and
less restrictive means to
achieve the purpose.
Except as provided in subsection
(1) or in any other provision of the Constitution, no law may limit
any right entrenched in
the Bill of Rights.”
10
Section
26 of the Constitution provides:
“
(1) Everyone has the right to
have access to adequate housing.
(2) The state must take reasonable legislative and
other measures, within its available resources, to achieve the
progressive
realisation of this right.
(3) No one may be evicted from their home, or have
their home demolished, without an order of court made after
considering all
the relevant circumstances. No legislation may
permit arbitrary evictions.”
11
Section
10 of the Constitution provides: “Everyone has inherent dignity
and the right to have their dignity respected and protected.”
12
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004
(7) BCLR 687
(CC) at para 25.
13
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
[2009] ZACC 16
, Case No CCT 22/08, 10 June 2009, as yet unreported.
14
Id
at para 343.
15
Section
1 of PAJA defines “administrative action” as follows:
“
any decision taken, or any
failure to take a decision, by—
an organ of state, when—
exercising a power in terms of
the Constitution or a provincial constitution; or
exercising a public power or
performing a public function in terms of any legislation; or
a natural or juristic person,
other than an organ of state, when exercising a public power or
performing a public function in
terms of an empowering provision,
which adversely affects the
rights of any person and which has a direct, external legal effect
. . . .”
16
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA).
17
Id
at para 23.
18
See
Premier, Mpumalanga, and Another v Executive Committee,
Association of State-Aided Schools, Eastern Transvaal
[1998]
ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC) at para 41.
19
Indeed,
in mandating the enactment of national legislation to give effect to
the constitutional right to administrative justice,
section 33(3)(c)
of the Constitution required that such legislation “promote an
efficient administration”.
20
A
similar position is adopted in De Ville
Judicial Review of
Administrative Action in South Africa
(LexisNexis Butterworths,
Durban 2003) at 221.
21
For
the full text of section 3 of PAJA, see above n 5.
22
Hoexter
Administrative Law in South Africa
(Juta, Cape Town 2007) at
358-9; Currie
The
Promotion of Administrative Justice Act: A
Commentary
2ed (SiberInk, Cape Town 2007) at 100; and De Ville
above n 20 at 223 4.
23
Jaftha
v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) at para 34.
24
Above
n 11.
25
Mkontwana
v Nelson Mandela Metropolitan Municipality and Another; Bissett and
Others v Buffalo City Municipality and Others; Transfer
Rights
Action Campaign and Others v MEC, Local Government and Housing,
Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi

Municipality and Amici Curiae)
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC).
26
Id
at para 38. (My emphasis.)
27
In
2008, the Department of Minerals and Energy (Electrification Policy
Development and Management) published the first of an annual
survey
titled
Socio-Economic Impact of Electrification: Household
Perspective
. The survey was conducted in three provinces,
Limpopo, KwaZulu-Natal, and the Eastern Cape, and covered a sample
of 3 790 participants.
The overall results show that electrification
greatly improves the quality of life and welfare of households. Its
key findings
are: (i) over 90% of households use electricity as
their main source of lighting; (ii) lighting brings benefits such as
increased
study time for school children and greater security; (iii)
electricity increases access to media which, in turn, increases
awareness
of several opportunities such as education; (iv) 63% of
households use electricity as their main source of energy for
cooking,
and refrigerator ownership is high at 65%; and (v) a number
of enterprises were created as a result of electrification, and
businesses
were able to operate for more hours. The survey report is
available at
http://w
ww.dme.gov.za/pdfs/energy/electricity/web.pdf
(accessed on 25 September 2009).
See
also Bekink
Principles of South African Local Government Law
(LexisNexis, Durban 2006) at 312.
28
Section
153 of the Constitution provides as follows:
“
A municipality must—
structure and manage its administration and budgeting
and planning processes to give priority to the basic needs of the
community,
and to promote the social and economic development of
the community; and
participate in national and
provincial development programmes.”
29
Section
27(1)(b) of the Constitution provides that “[e]veryone has the
right to have access to sufficient food and water”.
30
Walele
v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC);
2008 (11) BCLR 1067
(CC).
31
Section
33(1) of the Constitution provides: “
Everyone
has the right to administrative action that is lawful, reasonable
and procedurally fair.”
32
Walele
above n 30 at para 123. See also the majority judgment of Jafta
AJ at para 30.
33
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Another (Mukhwevho Intervening)
[2001] ZACC 19
;
2001 (3) SA
1151
(CC);
2001 (7) BCLR 652
(CC) at para 100;
Premier,
Mpumalanga
above n 18 at para 31 fn 9; and
Grey’s Marine
above n 16 at para 30.
34
Above
n 18.
35
In
support of this approach to rights, O’Regan J (at para 31 fn 9)
referred to
Dilokong Chrome Mines (Edms) Bpk v
Direkteur-Generaal, Department van Handel en Nywerheid
1992 (4)
SA 1
(A) at 18, which concerned a claim in terms of an export
incentive scheme, the details of which had been published in the
Government
Gazette. There, Botha JA held that although no
contractual relationship had been established between the appellant
and the respondent,
the state had unilaterally incurred liability in
terms of the scheme.
36
Hoexter
above n 22 at 326-7. (Footnote omitted.)
37
Section
1 of the Constitution provides:
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following
values:
Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
Non-racialism and non-sexism.
Supremacy of the constitution and
the rule of law.
Universal adult suffrage, a
national common voters roll, regular elections and a multi-party
system of democratic government,
to ensure accountability,
responsiveness and openness.”
38
Sections
50 and 51 of the Municipal Systems Act affirm the application of the
constitutional principles governing public administration
to the
provision of municipal services.
39
This
approach to the meaning of “rights” in the context of public
service delivery is articulated in the national policy of
Batho
Pele
(“People First”), described in the
White Paper on
Transforming Public Service Delivery
(1997), GG18340 GN 1459, 1
October 1997.
Batho Pele
expresses a commitment to deliver
public services to all citizens. It provides that the terms
“citizen” and “customer”
are interchangeable in the context
of public service delivery (para 1.3.4), particularly since public
service “customers”
have little or no choice over the service
provider or the services provided to them (para 1.3.2). It seems to
me that
Batho Pele
gives practical expression to the
constitutional value of ubuntu which embraces the relational nature
of rights (see De Ville
above n 20 at 227). Courts must move beyond
the common law conception of rights as strict boundaries of
individual entitlement.
40
For
the full text of section 3(4) of PAJA, see above n 5.
41
The
principle of financial sustainability is contained in section 152 of
the Constitution cited at [35] above. See further, section
73(2)(c)
of the Municipal Systems Act which provides that “[m]unicipal
services must be financially sustainable” and section
4(2)(d) of
the Municipal Systems Act which provides:
“
(2) The council of a
municipality, within the municipality’s financial and
administrative capacity and having regard to practical

considerations, has the duty to—
. . . .
(d) strive to ensure that municipal services are
provided to the local community in a financially and
environmentally
sustainable manner”.
42
Mkontwana
above n 25 at para 52.
43
Id
at para 124.
44
Compare
Davis v Weir
[1974] USCA5 1130
;
497 F.2d 139
(5
th
Cir. 1974) at
144-6, where the United States’ Fifth Circuit Court of Appeals
held that a municipal service cannot be denied
to a tenant because
of a landlord’s outstanding debts. To make service provision
contingent on fulfilling the financial obligation
of a third party
was held to lack a rational basis and to be unconstitutionally
discriminatory. This decision was followed by
the Seventh Circuit
Court of Appeals in
Sterling v Village of Maywood
579 F.2d
1350
(7
th
Cir. 1978) at 1355 and more recently by the
Sixth Circuit Court of Appeals in
Golden v City of Columbus
[2005] USCA6 179
;
404
F.3d 950
(6
th
Cir. 2005) at 960-2.
45
By-law
16 of the Credit Control By-laws provides:
“
(1) The Council must reinstate
full levels of provision of any electricity or water service
terminated or restricted in terms
of section 15 after—
the full amount of arrears has been paid; or
an agreement for payment of the
arrears contemplated in paragraph (a) has been entered into in
terms of section 21; or
the full amount of arrears in
respect of any agreement entered into in terms of section 21, and
any increased deposit, have
been paid, or any additional security
required has been provided,
and any other condition of the
Policy that the Council may consider appropriate, has been complied
with.
Any reinstatement in terms of subsection (1) may only
be done after an authorised official has issued a written
certificate
of authorisation to the effect that every applicable
condition contemplated in subsection (1) has been complied with and
that
the municipal service concerned may be reinstated.”
46
Zondi
v MEC for Traditional and Local Government Affairs
and Others
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at
para 114. See also
Kyalami
above n 33 at para 101;
Premier
,
Mpumalanga
above n 18 at para 39; and
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10)
BCLR 1059
(CC) at para 219.
47
Section
3(2)(b)(i) and (ii) respectively.
48
For
the full text of section 3 of PAJA, see above n 5.
49
Premier,
Mpumalanga
above n 18 at para 41.
50
See
by-law 21 of the Credit Control By-laws which
allows for the payment of arrears in instalments, with the agreement
of the Council.
By-law 21 must be read with by-law 3(2)(ii) which
regulates the entering into of new service agreements with the City
by an existing
customer of the Council who is in arrears in respect
of any other municipal service.
51
My
emphasis.
52
De
Ville
Constitutional and Statutory Interpretation
(Interdoc
Consultants, Cape Town 2000) at 78. See also
Ex Parte the
Minister of Justice In re: R v Jekela
1938 AD 370
at 377;
Principal Immigration Officer v Bhula
1931 AD 323
at 335; and
Government of the Republic of South Africa and Another v
Government of KwaZulu and Another
1983 (1) SA 164
(A) at 200D-H.
For a discussion of the presumption see De Ville at 170 and Du
Plessis
Re-Interpretation of Statutes
(LexisNexis
Butterworths, Durban 2002) at 72-7.
53
Du
Plessis
Re-Interpretation of Statutes
above n 52 at 177.
54
This
interpretive approach was adopted by this Court in
South African
Police Service v Public Servants Association
[2006] ZACC 18
;
2007 (3) SA 521
(CC);
[2007] 5 BLLR 383
(CC) at paras 14-6 and
Van
Rooyen and Others (General Council of the Bar of South Africa
Intervening) v the State and Others
[2002]
ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC)
at paras
180-2.
55
The
definition of “customer” is cited in full at [15] above.
56
By-law
3(1)(c) provides:
“
(1) No municipal service may
be provided to any applicant, unless and until—
. . . .
a service agreement, in a form substantially similar
to the form of agreement prescribed, has been entered into between
the
customer and the Council”.
57
By-law
7(1)(b) provides:
“
(1) Subject to the provisions
of sections 13 and 21—
. . . .
the Council may, subject to compliance with the
provisions of these By-laws and any other applicable law, by notice
in writing
of not less than 14 working days, to a customer,
terminate his or her agreement for the provision of the municipal
service
concerned”.
58
By-law
11(1) provides:
“
A customer may lodge a query
or complaint in respect of the accuracy of any amount due and
payable in terms of an account rendered
to him or her in terms of
these By-laws.”
59
By-law
13(1) provides:
“
If a customer fails to pay an
amount due and payable for any municipal service rates on or before
the due date for payment specified
in the account concerned, final
demand notice may be sent to the customer.”
60
By-law
15(2)(a) provides:
“
(2) Subject to the provisions
of subsection (4), the Council may terminate or restrict the
provision of water or electricity
. . . to any premises if the
customer in respect of the municipal service concerned—
. . . .
fails to make full payment of arrears specified in a
final demand notice sent to the customer concerned”.
61
By-law
21(1) provides:
“
A customer with positive proof
of identity or a person authorised, in writing, by such customer,
may, subject to the approval
of the Council enter into an agreement
in a form substantially similar to a form prescribed, for the
payment of arrears in
instalments.”
62
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009]
ZACC 14
, Case No CCT 80/08, 3 June 2009, as yet unreported, at para
22;
Affordable Medicines
Trust and Others v Minister of Health and Others
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
at
para 138; and
Motsepe
v Commissioner for Inland Revenue
[1997]
ZACC 3
;
1997 (2) SA 898
(CC);
1997 (6) BCLR 692
(CC) at para 30.