IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE, CAPE TOWN.

CASE NO.: 13035/2009

In the matter between:
DESMOND WHITE	                                                                        
and
THE CITY OF CAPE TOWN	                                                             

JUDGMENT DELIVERED THIS 31stDAY OF MARCH, 2010 

THRING. J.:

The respondent, the City of Cape Town, has adopted a certain Tariff By-Law which was promulgated on the 29thJune, 2007, paragraph 3 of which reads:

"ADOPTION AND IMPLEMENTATION OF TARIFF POLICY

(1) The City shall adopt and implement a tariff policy on the levying of fees for a municipal service provided by the municipality or by way of service delivery agreements which complies with the provisions of the Systems Act, the Local Government: Municipal Finance Management Act, 53 of 2003 and any other applicable legislation. {2)     The City shall not be entitled to impose tariffs other than in terms of a valid tariff policy."

"Domestic full: consumers with access to an uncontrolled volume of water supply that is metered.

Domestic cluster: where one metered connection point serves a multi residential unit development."

For the sake of convenience, I shall refer herein to "domestic full" consumers as "single residence dwellers" and to 'domestic cluster" consumers as "flat dwellers". The latter category,  however, also includes consumers of
" municipal water who live in cluster housing developments, golf estates, etc, whether such dwellings are owned under sectional title or otherwise.

In accordance with its tariff policy the respondent issued a schedule of tariffs for 2009/2010 in respect of the supply of water to various categories of consumers. Single residence dwellers (categorised as "domestic full") were to pay for their water according to a stepped tariff, as follows;

1. (0-6)			0
2. (6-12)		R3.66
3. (12-20)		R7.81
4. (20-40)		R11.57
	  5. (40-50)				               R14.29
6. (>50)		R18.85"

Flat dwellers (categorised as "domestic cluster") were to pay on a different basis. The tariff applicable to them is:

1. (0-6)			0
2. (>6)			R7.83 "
As for solid waste removal, the respondent's tariff policy in respect of residential properties reads, in para. 18.2.2.2 thereof:

''Billing categories

"1. Declaring that the City of Cape Town has contravened the provisions of Section 74(3) of Section 74(1 )(a) and (b) of the Municipal Systems Act 32, 2000 in that the City charges residents of flats and cluster dwellings to which the City provides water through a single bulk meter a tariff considerably higher than the tariff charged to residents of single dwellings through individual water meters.

5. Declaring that the City of Cape Town has imposed an unfair and discriminatory tariff for SOLID WASTE REMOVALS on residents in Sectional Title blocks of flats and Domestic Cluster complexes insofar as the tariff provides that a minimum charge based on one third of the residential units in the aforesaid flats and cluster complexes be raised irrespective of whether the municipal service for the removal of waste bins is or is not used and irrespective of the number of bins that have actually been used (over the past 5 years) by those customers.

He is unrepresented. The Municipal Systems Act to which he refers in prayer 1 of his notice of motion is the Local Government: Municipal Systems Act, No. 32 of 2000.

"Anyone listed in this section has the right to approach a competent court alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are -
(a)    	
(b)     	
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest;	"

"	it may be necessary for the Constitutional Court to develop
some controlling mechanisms to ensure that it is not flooded by
mischief-makers and busybodies	"

"Section 38(c) may be seen as introducing a class action or representative action into South African law, when the enforcement of constitutional rights is in issue. Section 38(d) opens the door to public interest actions, though its ambit is still unclear.

An enquiry into standing is an enquiry into whether a matter which has been brought before a court is justiciable. The requirement of procedural justiciability is based upon the principle that it is not the function of the courts to determine academic or hypothetical issues. Procedural aspects of justiciability include issues of standing, ripeness and mootness. Standing enquiries relate to whether the person who has claimed relief has the right and interest to do so or is the correct person to be before the court."

"I am addressing you on behalf of thousands of consumers of water regarding the proposed tariff for 'Domestic Cluster'."

The "thousands of consumers" to whom he refers are presumably some or all of the flat dwellers within the municipal area of the respondent, of whom, of course, he is one.

I turn now, therefore, to the merits of the application.

THE RESPONDENT'S WATER TARIFF

The applicants case appears to be that the respondent's water tariff:

(3) requires individual consumers of water to pay for such service amounts which are not "generally.... in proportion to their use of that service" in contravention of sec. 74{2)(b) of the Systems Act.

"(2) A tariff policy must reflect at least the following principles, namely that-

(a)     users of municipal services should be treated equitably in the application of tariffs;

-(b)"  the. amount individual users pay for services should generally be in proportion to their use of that service;
(3) A tariff policy may differentiate between different categories of users, debtors, service providers, services, service standards, geographical areas and other matters as long as the differentiation does not amount to unfair discrimination."

"(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of s 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:

" .(TV- Eirstly, does the differentiation amount to 'discrimination'? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to 'discrimination', does it amount to 'unfair discrimination'? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of s 8(2).

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s 33 of the interim Constitution)."

The applicant does not contend that the respondent's water tariff violates sec. 9(1) of the present Constitution, which reads:

''Everyone is equal before the law and has the right to equal protection and benefit of the law."

Nor, in my view, could it properly be so contended. (The corresponding provision in the Interim Constitution was sec. 8 (1)).

It seems to me, moreover, that the respondent has succeeded in showing, on the papers, that the differentiation which is brought about in its tariff between different categories of residential consumers of water is rationally connected to a legitimate government purpose. Thus Mr. G.D. van Schalkwyk, the Director of the respondent's Inter-Services Liaison Directorate, and the deponent to the respondent's main opposing affidavit, says in his affidavit:

"71. In light of the characteristics of the Domestic Full category, I submit that the sliding scale is a rational means of achieving the policy objectives of (a) facilitating .the financiatiy-^sic^sustainability of the water service, (b) being pro-poor and (c) discouraging excessive water usage. Indigent households in the City, the overwhelming majority of whom reside in the Domestic Full category, benefit from the free and low tariffs for lowwater usage below 12 kl per month. At the same time, residents in properties which have the potential to use high amounts of water are discouraged from doing so through a punitive scale for water usage above 40 kl. and even more so above 50 kl per month. The stepped tariff in the Domestic Full category also means that users who use more water, cross-subsidise the costs of providing water for free (sic) or below-cost to indigent households.

72. Compared with the Domestic Full category, it is less appropriate to apply a sliding 	scale to the Domestic Cluster category for the following five reasons:

	Without individual accountability, the punitive tariff for excessive water is less likely to be a deterrent.

A little later in his affidavit he adds a fifth reason, viz.:

None these statements are seriously disputed by the applicant.
The next enquiry is as to whether or not the differentiation concerned amounts to discrimination.

In his opposing affidavit van Schalkwyk says:

"110. The type of residence occupied by a person is not a ground of discrimination listed in s 9(3) of the Constitution.
111. Furthermore, whether a person lives in a flat or a house is not an immutable biological attribute or characteristic nor does it relate to the intellectual, expressive or religious dimensions of humanity. Living in a flat also does not have the potential to impair the fundamental dignity of persons as human beings or to affect them in a comparably serious manner. Accordingly, residence in a flat rather than a house is not analogous to any of the grounds of discrimination listed in s 9{3) of the Constitution."

Consequently it seems to me that residence in a flat or other form of cluster development or complex cannot be said to be "analogous" to any of the grounds of discrimination which are specified in sec. 9(3) of the Constitution. It follows, in my view, that the differentiation which is brought about by the respondent's water tariff between single residence dwellers on the one hand and flat dwellers on the other does not amount to discrimination, and that the applicant's challenge of the respondent's water tariff as being in contravention of sec. 74(3) of the Systems Act cannot succeed.

- 324 E (para. [51]) the various factors which must be considered in order to
determine whether or not a discriminatory provision has an unfair impact on
the complainants concerned:
(a) the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration is on a specified ground or not:

(b) the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the". particular case, have a significant bearing on the' question whether complainants have in fact suffered the impairment in question	
(c) with due regard to (a) and (b) above, and any relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature."

Applying the above criteria to the applicant and other flat dwellers in Cape Town it seems to me, on the respondent's undisputed averments, that:

(a) They are not members of a group which has suffered in the past from patterns of disadvantage, nor are they vulnerable, stigmatised or marginalised; in fact, according to the undisputed evidence of van Schalkwyk only a miniscule fraction (0.004%) of so-called "indigent households", as that term is defined by the respondent, fall into the "domestic cluster" category;
(b) The respondent's water tariff structure aims to achieve certain worthy policy objectives, viz. the facilitation of the financial sustainability of the respondent's water service, the assistance of indigent households and the discouragement of excessive water use;

(d) The average household in the "domestic cluster" category is charged less for water than the cost to the respondent of its production and supply, and the applicant in particular is considerably undercharged in this regard: he pays, on average, only some 16% of the cost of the water which he consumes;
(e) Flat dwellers pay less, on average, for solid waste (refuse) removal than do single residence dwellers.

I conclude that the applicant has failed to demonstrate that the differentiation of which he complains in this regard, even if it amounts to discrimination, constitutes' discrimination which is unfair'in the circumstances, or that it contravenes sec. 74(3) of the Systems Act.

I also agree that the respondent's water tariff is, in fact, equitable if regard is had to the respondent's legitimate policy objectives with regard thereto, the unsuitability of the application of the sliding scale of water charges to the 'domestic cluster" category of consumers, the fact that the average flat dwellers water charges are considerably less than the cost to the respondent of producing and supplying the water to him, and the position in society of flat dwellers in general, as deposed to by van Schalkwyk.

It must also be borne in mind, in construing and.applying sec. 74(2){a) of the Systems Act, that its provisions fall short of being mandatory in nature: they set out a collection of "principles" which a tariff policy must

'The application of the principles is quintessential^ a policy decision involving calculations of social and economic preference. These policy-laden, polycentric decisions are ill-suited to adjudication and a Court would tend to defer to a democratically-elected municipal council which has acted upon advice by specialist officials, after following due process."

For the year ended June, 2009 the average monthly water consumption of flat dwellers in the respondent's municipal area (i.e. of consumers who fall into the "domestic cluster" category) was 13.13 kilolitres, whilst that of single residence dwellers (the "domestic full" category) was 19.58 kilolitres. Applying the respondent's current water tariffs to these averages, the cost to the flat dweller of the average quantity of water consumed by him (13.13 kilolitres) is R55.83, or R4.25 per kilolitre average overall, whilst the cost to the single residence dweller of the average quantity of water consumed by him (19.58 kilolitres) is R81.16, or R4.15 per kilolitre average overall. It is the applicant's case that regard must be had only to the cost implications at these respective average rates of water consumption; that they reveal that the average flat dweller is being charged more (i.e. 10 cents) per kilolitre of water consumed by him than the average single residence dweller is being charged for that consumed by him; that this is inequitable; and that it serves no purpose to examine the positions of flat dwellers and single residence dwellers relative to one another at levels of consumption other than the average, as set out above.

It is true that, applying the respondent's "domestic full" tariff to single residence dwellers and its "domestic cluster" tariff to flat dwellers, a flat dweller who consumes less than about 27 kilolitres of water per month will have to pay more, on average, per kilolitre than the single residence dweller will have to pay for the same quantity of water, so that the cost to a flat dweller of 13 kilolitres, for example, will be R54.81, whilst the cost to a single residence dweller of the same quantity -will be only R29.77, i.e. approximately 45% less.    At that level of consumption, therefore, the applicant is correct in his somewhat graphic assertion that it will cost the flat dweller more to have a shower or to flush his toilet than it will cost the single residence dweller. However, the converse is true at rates of consumption in excess of about 27 kilolitres per month: for example, at a monthly consumption of 60 kilolitres the single residence dweller will have to pay R647.24 as opposed to the cost of an equal quantity of water to the flat dweller of only R422.82; that is to say, the flat dweller will pay some 35% less for the water consumed by him than the single residence dweller has to pay for an equal quantity.

Van Schalkwyk, on the other hand, points out that the overall monthly average water consumption by single residence dwellers of 19.58 kilolitres is made up of six "billing blocks", each consisting of a volume of water which is charged for at a different rate according to the applicable tariff, as follows:

1.(0-6)	5.64	R0.00	R0.00
2.(6-12)                          4.35                          R3.66	R15.93
3.(12-20)                        3.62                          R7.81	R28.25

5.(40-50                          0.70                         R14.29	R9.93

This results in an average charge of R6.53 per kilolitre to single residence dwellers (R127.78 divided by 19.58 kilolitres). Applying the same approach to flat dwellers, who pay according to the "domestic cluster" tariff, the following result is achieved:

1.(0-6)	5.43	R0.00	R0.00

This translates into an average charge of R4.60 per kilolitre to flat dwellers (R60.35 divided by 13.14 kilolitres), which is some 30% less than the corresponding average for single residence dwellers (the discrepancy between the total average consumption rates of 13.13 as opposed to 13.14 kilolitres is too small to be of any significance).

The applicant's approach appears to me to be selective and artificial; that adopted by van Schalkwyk is, to my mind, to be preferred, based as it is on actual figures of water consumption and the charges levied therefor spread over the various applicable "billing blocks".
In any event, in my view any inequitability which may exist here must be marginal in its nature and extent, and cannot render the respondent's tariff policy unlawful, in the circumstances.

The allegation that the amounts which certain individual consumers of water are required to pay for the water service is not generally in proportion to their use of that service ((3) above).

The applicant contends that the respondent's water tariff contravenes sec. 74(2) (b) of the Systems Act, inasmuch as individual water users do not pay for the water service in proportion to their use of the service. I am unable to agree.

Moreover, and even if the occupant of each individual flat or unit were to be regarded as a separate "user" for the purposes of sec. 74(2)(b) of the Systems Act, it seems to me that the amount which each such occupant may be required by the owner or body corporate concerned to contribute to the respondent's overall water charges will be "generally in
proportion to their use of that service" if. as appears generally to be the case, such charges are shared equally by the various occupants. Such is one of the practical consequences and limitations of bulk water metering. The applicant does not raise any complaint in the papers about the manner in which water charges are allocated amongst the residents of the block of flats where he resides.	"
Furthermore, what I have said above about the non-mandatory nature of sec. 74(2) (a) of the Systems Act applies with at least equal force to sec. 74{2)(b), the operative words in the latter sub-section being "should generally".

I conclude that the respondent's water tariff policy is not inconsistent with sec. 74(2)(b} of the Systems Act.

THE RESPONDENT'S CHARGES FOR SOLID WASTE (REFUSE) REMOVAL

In prayer 5 of his notice of motion the applicant seeks an order declaring, in effect, that the charges levied by the respondent on flat dwellers for solid waste (refuse) removal are "unfair and discriminatory", and in prayer 7 he asks for them therefore to be "declared null and void and of no force and effect".

The allegation that the charges are discriminatory can be dealt with very briefly. As I have said, single residence dwellers are obliged to pay a fixed amount each month to the respondent in respect of the removal of a single bin of refuse per week, whether or not they make use of this service.
The amount has been fixed at R63.93 per month for the 2009/2010 budget year. Flat dwellers, on the other hand, are in effect obliged to pay only one-third of this amount, as the owner of a block of flats or the body corporate of a development, as the case may be, has to pay for the removal of only one bin for every three flats in the block or units in the development: so that, on average, the amount payable by the occupant of each flat or unit is only R21.31. There is clearly no discrimination here against flat dwellers: on the contrary, they are in a substantially more favourable position in this regard than single residence dwellers. In any event, the proper enquiry under both the Constitution and the Systems Act is not whether the respondent's solid waste tariff policy is discriminatory, but whether it amounts to or brings about discrimination which is unfair. I shall deal with the alleged unfairness next.

The applicant seems to suggest that the respondent's charges for solid waste (refuse) removal are "unfair" because the respondent is "penalising residents who do not use its service" and is "charging residents for removals they do not use" (paragraph 6 of his founding affidavit). In this regard van Schalkwyk says the following in his affidavit:

94.    By contrast, if individual residents were allowed to opt out of having the municipal refuse collection service, then:
94.1 the environment and health of the City's inhabitants would be placed at increased risk as some residents would resort to illegal dumping rather than pay to have their refuse removed;
94.2 the cost to each resident for the service would increase since the fixed costs of the service would have to be divided among a smaller pool of paying users and the benefits of the economies of scale would be reduced;
94.3 the system would become more complex to administer since the workers collecting the refuse would have to check whether each resident who places a bin outside their property had contracted with the City for its removal; and
94.4 the risk of corruption would increase as some residents may choose not to contract with the City for the official refuse collection service but would instead seek to bribe cleaning workers directly to remove their bins.

 

96. When the City was considering introducing the requirement for a minimum number of bins in sectional title developments and blocks of flats, the City based the ratio of bins to living units upon the extensive experience of the City and its predecessors over many years of providing a municipal refuse collection service. The decision was a considered one.

97. I should mention that at the time, there was a debate about whether the minimum number of bins for sectional title developments and blocks of flats should be equivalent to a half or a third of the total number of living units. The City eventually settled on the more relaxed requirement of a third."

None of these statements are challenged by the applicant in reply.
It seems to me that quite apart from not being discriminatory towards flat dwellers, it can also not be said, in the light of the reasons furnished by van Schalkwyk, that the charges currently levied by the respondent in respect of solid waste (refuse) removal are unfair to anybody.
It follows that the applicant's attack against these charges can also not succeed.

COSTS
The costs must follow the result. However, the respondent seeks costs on an attorney-and-client scale. Van Schalkwyk points out in his affidavit that on a previous occasion, in 2007, the applicant unsuccessfully brought proceedings against the respondent in this Court, in which he challenged certain aspects of the respondents rates dispensation, and in which he was not ordered to bear the costs; that before the applicant instituted the present application, the respondent's officials went out of their way to explain its tariff policy to him; and that, despite having been treated by the respondent's officials in a professional and respectful manner, the applicant has referred to them and to their explanations in "insulting, disparaging and abusive language and accused them of lacking integrity", such as:
"	'some ridiculous proposition', Inane poppycock', 'odd no- brain  assertion',    'pulling a fast one',    'playing with semantics', 'an exposition of why the Director thinks he can flout the Systems Act', 'an inane excuse', 'arithmetical logic [which] is absurd' and 'patently incorrect and nothing less than a lame excuse'"

(paragraph 150.9 of his affidavit). He maintains that the applicant has been feckless and vexatious in instituting these proceedings.

Cape Town should not be taken for a wilting violet. Local authority, like ambition, should be made of sterner stuff.

For these reasons, the application is refused, with costs.

THRING, J.