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[2010] ZAWCHC 404
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White v City of Cape Town (13035/2009) [2010] ZAWCHC 404 (21 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
13035/2009
DATE
:
21
MAY 2010
In
the matter between:
DESMOND
WHITE
…............................................................................
Applicant
and
THE
CITY OF CAPE TOWN
…...........................................................
Respondent
JUDGMENT
Application
for Leave to Appeal
THRING,
J
:
This
is an application in terms of section 20(4)(b) of the Supreme Court
Act, No. 59 of 1959 for leave to appeal against the order
which was
made by me in this matter on the 31
st
March,
2010. The applicant for leave is the unsuccessful applicant in the
principal application, Mr White. The respondent opposes
the
application for leave to appeal.
The
respondent's water tariff undoubtedly differentiates between
categories of consumers of water, inasmuch as consumers who fall
into
some categories have to pay more per litre of water consumed by them
than do consumers who fall into other categories, depending,
inter
alia,
on
the quantities of water concerned. The applicant contends that this
differentiation discriminates unfairly and inequitably against
consumers who reside in flats, and is in contravention of
section
74(2)
and (3) of the
Local Government Municipal Systems Act, No. 32
of 2000
.
I
continue to be of the view that the applicant's contentions in this
regard are unfounded, and nothing that has been said today
in this
Court has altered my view. However, the prospect that another Court
might reach a different conclusion is not, in my
view, so remote
that it can be said to be beyond the bounds of reasonableness. In my
earlier judgment I expressed the view that
several of the arguments
which the applicant had advanced in this Court were not entirely
without merit. I remain of that view.
Mr
Paschke
,
who appears again for the respondent, argues that the matter is not
of sufficiently substantial importance to the applicant,
or to both
him and the respondent, to justify leave to appeal being granted. He
correctly points out that if the applicant were
to succeed, the
resultant reduction in his monthly water bill would be only some
R4,59, which is minimal.
However,
I decided this matter on the basis of an assumption which I made in
the applicant's favour that he enjoyed
locus
standi
inasmuch
as these proceedings could just possibly be regarded as falling
somewhere within the ambit of section 38(c) or (d) of
the
Constitution, namely that they could possibly be regarded as a class
action or as an application brought by the applicant
in the public
interest. In making that assumption I was influenced to some extent
by the attitude adopted by the respondent in
not pursuing the issue
of
locus
standi
and
in leaving this aspect of the matter in the hands of the Court. If
my assumption is correct, the fact that the applicant may
stand to
gain very little himself in this litigation is not in itself an
insuperable obstacle for him, inasmuch as there may
be numerous
other persons to whom his success may bring greater benefits. It
follows, in my view, that the leave sought by the
applicant must be
granted.
That
leaves the question as to what Court should hear the appeal. The
issue raised in this matter may well be of considerable
potential
interest and importance to a large number of the inhabitants of this
city. I therefore think that it is deserving of
consideration by the
Supreme Court of Appeal rather than by a Full Bench of this Court.
Accordingly, in my view the appeal should
be entertained by the
former Court rather than by the latter.
For
these reasons I make the following order:
Leave
is granted to the applicant to appeal to the Supreme Court of
Appeal against the whole of the order made by this Court
on the
31
st
March,
2010 on the grounds set out in his application for leave to appeal.
The
costs of this application shall be costs in the appeal.
THRING, J