THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NUMBER: 51/98
In the matter between:
KEMPTON PARK/TEMBISA
METROPOLITAN SUBSTRUCTURE
APPELLANT
and
SIMON JAN JACOB KELDER
RESPONDENT
CORAM:
HEFER, OLIVIER and PLEWMAN JJA;
MELUNSKY and MTHIYANE AJJA
DATE OF HEARING:
17 MARCH 2000
DATE OF JUDGMENT:
31 MARCH 2000
JUDGMENT
Municipal council - Interpretation of Council Resolutions -
Mandamus to Compel Compliance.

PLEWMAN JA
[1] The issues to be decided in this appeal fall within a very narrow
compass.  This is the consequence of the manner in which the case
was presented and the basis upon which the appeal was argued.  The
underlying problem as the decision in Pretoria City Council v Walker
1998 (2) SA 363 (CC) illustrates, has much wider implications.  This
will become apparent from  the facts set out below.  It will also be
clear therefrom that the real differences between the parties could well
have been addressed on different grounds. But the parties restricted
the enquiry to the issue whether appellant, a local government, can be
compelled by a mandamus to carry into effect certain resolutions
passed by its council in circumstances to be more fully outlined.  For
this reason it is unnecessary to consider matters such as those raised

in the Walker case.  Both lower courts consequently decided the
matter on this narrow ground.  The matter is one which, in the interests
of justice, this Court should decide.  The jurisdictional requirements of
the constitutional order existing at the time when the proceedings were
initiated are thus established.
[2] Appellant is the Kempton Park/Tembisa Metropolitan
Substructure.  It was brought into existence by proclamations issued
in terms of the Local Government Transition Act 209 of 1993 and
Chapter 10 of the Interim Constitution Act 200 of 1993.  These
proclamations brought about the amalgamation of the earlier municipal
structures of Kempton Park, the Township of Tembisa and certain
other minor entities.  I will refer to appellant as the council.
Respondent was a resident and ratepayer of Kempton Park and is now
a resident and ratepayer of the enlarged entity.

[3] The proclamations and the statutes referred to brought about
profound changes in this country at local government level.  The
significance of these changes was extensively reviewed in the case of
Fedsure Life Assurance and Others v Greater Johannesburg
Transitional Metropolitan Council and Others 1999 (1) SA 374
(CC).
[4] This case concerns the provision of electricity in the enlarged
area by the council as the supply authority. Tembisa has a population
of between 600 000 and 1 million - no precise figure can be
established.  It contains 30 000 formal housing units and an
undetermined (and seemingly indeterminable) number of informal
housing units.  By  1981, 24 500 of the formal units had been provided
with electricity and equipped with meters to measure each unit’s
consumption of electricity.  In the years which followed approximately

9 000 of these meters were rendered inoperative because they were
vandalized or otherwise interfered with.  The remaining 5 500 formal
units had not at any time been supplied with electricity and   none of
the informal units enjoyed a supply of electricity.
There was a large influx of people into Tembisa, particularly in
the years after 1986 when influx control ceased to be enforced.  A
period of intense political activity followed.  A rent boycott was
organized and there were disturbances which led in the end to a loss
of administrative control in the area.  In this situation many inhabitants
simply installed or made illegal connections to the electricity supply
network to draw power therefrom.  There is an estimate in the papers
that approximately 10 000 such connections were made.  These, as is
obvious, were not metered and the electricity consumed was not paid
for.  This practice also caused overloading of the supply system and

frequent blackouts in various areas - a marked source of friction
between the inhabitants and those in authority.  Attempts to remove the
illegal connections proved not only futile because they were merely re-
established but also dangerous in so far as the persons effecting the
removal were concerned.
The position in November 1995 was that, not taking the illegal
connections into account, there were approximately 24 500 housing
units in the area wired for and consuming electricity of which 9 000
were not metered.  While the supply to those which were wired was
unreliable, the majority of the inhabitants did not enjoy a supply of
electricity at all.  There was also by this time an entrenched “culture of
non-payment” for services and the overall recovery of electricity
charges was very low.  The entire system of administration was in fact
in serious disarray.

[5] The council’s approach to the difficulties it faced in Tembisa
was aimed at a re-assertion of control which would enable it to recover
electricity charges.  But it recognized that enforcement of a uniform
structure of electricity tariffs in its entire supply area and universally
enforceable against all was an end which was not immediately
achievable. It accordingly resolved on 22 August 1995 to adopt a
“Business Plan to Normalise the Electricity Supply to Tembisa”
prepared earlier by its Director of Electricity in conjunction with its
Electrical Engineering Services Committee. In so far as the recovery of
electricity charges is concerned, the Plan proposed remedial steps to
be implemented in phases all directed at the ultimate objective of
normality.
[6] The object of respondent’s application was to force the council
to cut off the supply of electricity to persons who failed to pay the

charges therefor and to maintain such discontinuation until all
outstanding debts and fines had in such cases been paid by the
defaulters.  This relief is covered by the first and second prayer in the
Notice of Motion.  It is alleged in the founding affidavits that the
council had by resolution adopted a credit control procedure which
directed that it follow this course in cases of non-payment.  The third
prayer is in a sense supplementary in that it sought to compel the
council also to initiate legal proceedings to recover any unpaid
electricity charges.  The fourth prayer is directed at compelling the
council to disconnect and remove on a continuing basis all unlawful
electrical connections and to prosecute all persons who effected illegal
connections to the system.
[7] Respondent’s contention in support of the first three prayers is
that the council is obliged to take the specified steps because it had by

such resolutions decided to enforce its credit control policy in that
manner.  The council, for its part, contests the matter mainly on the
ground that the relevant resolutions (or rather, as will be seen, the only
relevant resolution) did not have the content suggested by respondent.
It also argues that the remedy invoked is a discretionary one and that
its application will be inappropriate in the circumstances.
[8] In the Witwatersrand Local Division Mynhardt J refused the
application (particularly in so far as the first three prayers are
concerned) on the ground that the council was not obliged to enforce
its credit control procedures against defaulters because the relevant
procedures were a matter within the council’s discretion.  The
reasoning was that s 87(1) of the Local Government Ordinance No 17
of 1939 (Transvaal) (which is still in force), being permissive and not
peremptory, preserved the council’s discretion as to whether it would

cut off the supply to defaulters and as to the manner or method by
which unpaid charges were to be recovered.
[9] The court a quo overruled Mynhardt J and made the following
order:
“The respondent is ordered -
1.
to terminate the supply of electricity to any consumer
where such usage can be metered whose account is
overdue and with whom is has not arrived at an
arrangement contemplated by clause 1.1, 1.2 or 1.3 of its
credit control policy.
2.
to maintain the discontinuation of any service which has
been terminated pursuant to the order in paragraph 1 until
such time as the debt has been discharged or the
consumer and the respondent have arrived at an
arrangement contemplated by the credit control policy;
3.
to take all reasonable steps to recover payment of
outstanding electricity accounts including legal steps
where it is satisfied that no reasonable prospect of
recovering such debt exists unless legal steps are taken;
4.1
to take all reasonable and practical steps to terminate any
unlawful connection to the electrical reticulation system
under its control;
4.2
to lay charges against any person who appears to have

committed a criminal offence in relation to the use of
electricity or any connection with the electrical reticulation
system under its control.”
It is against this order that the council appeals.
[10] In my view the court a quo erred in granting the first three
prayers.  Its decision in that regard can be set aside on any one of
several grounds but I prefer to show no more than that it misconstrued
the only relevant resolution.
[11] As mentioned earlier respondent’s case is essentially that the
council is obliged to put its resolutions into effect. In his heads of
argument resolutions, said to have been adopted on 27 June 1995,  31
July 1995 and 29 August 1995, were  mentioned; but in the course of
the debate it became clear that the only resolution upon which reliance
was placed is the one passed on  29 August 1995.
[12] It is essentially paragraphs (a) and (b) of the resolution of 29

August 1995 which call for consideration.  But it is advisable that I also
quote paragraphs (c) and (d) thereof.  The remainder of the rather
lengthy resolution does not assist in the interpretation of paragraphs (a)
and (b) and is therefore omitted.  The relevant parts read:
“(a)
That the Substructure RECONFIRMS its principle of
uniform tariffs for the total community of the area of its
jurisdiction.
(b)
That the Substructure RECONFIRMS the principle that
where consumption can be metered, the metered rates as
well as the normal credit control measures BE
IMPLEMENTED.
(c)
That all efforts BE MADE to have meters installed as
soon as possible.
(d)
That all existing meters BE CHECKED for correctness
and fixed where necessary.
(e)
......”
[13] It is common cause that cutting off the supply of electricity to
defaulters was included in the “normal credit control measures”. The
question is whether the credit control measures were to be enforced

immediately against all defaulters. I do not think the resolution can be
read in this manner.  The words “reconfirm” of themselves take one
back to a previous enunciation of the principle.  This was the adoption
on 22 August of the Business Plan.  The use of the words “its
principle” and “the principle” contrasted with the positive terms of
paragraph (c) and (d) clearly show that the council merely reaffirmed
its commitment to the Business Plan which, as stated earlier, provided
for a phased implementation of the credit control policy in order to
avoid the very steps listed in the Notice of Motion. Indeed the word
“principle” would be meaningless on the respondent’s construction of
the clause.  For these reasons alone respondent’s assertion that a firm
decision had been taken to enforce the council’s credit control policy
immediately must be rejected.

[14] The  court a quo’s conclusion as to the effect of the council’s
resolutions seems to have been influenced by the nature of the duties
it held to have been imposed on the counsel. The court held that the
council stands in a fiduciary position in relation to its ratepayers
because “[t]he recognition and maintenance of a fiduciary relationship
is at the heart of representative local government in an open and
democratic society.” As a consequence, it found, “other duties culled
from those recognized as attaching to a trustee” are imposed on the
council. Certain duties derived from the private law of trusts were then
identified and relied upon in order to justify a mandamus.
[15] I am unable to support this approach. That there is in a broad
sense a fiduciary relationship between the  council and its ratepayers

is plainly correct. As Feetham AJA explained in Sinovich v Hercules
Municipal Council 1946 AD 783 at 820
“[i]t may, I think, be safely affirmed that the main object of
establishing municipal councils and similar bodies for purposes
of municipal government, as understood and carried on in the
Union of South Africa ......, is to enable representatives of the
inhabitants of given areas to administer, subject to some degree
of control by a central authority, the local affairs of those areas
in the general interests of their respective communities; and, in
order to make such administration adequate and effective, it has
now become a common practice to give to each municipal
council wide powers to decide according to its discretion,
subject to certain checks and safeguards, what measures will or
will not serve ‘a useful civic or municipal purpose’ in its own
area.”
That local government should be representative of the inhabitants of its
area of jurisdiction and that its actions should be open and transparent
can certainly not be doubted.  No one would, in this day and age,
question these propositions. But I do not subscribe to the attribution
to the council of private law duties derived from the law of trusts. The

council, as has been stated, owes its existence to the provisions of the
Local Government Transition Act 209 of 1993 and the proclamations
made in terms thereof. Its powers and duties are conferred by the
Constitution, by other statutes and the relevant principles of public and
administrative law. To impose upon it additional duties in accordance
with the principles of private law seems to me to negate its function as
an organ of state and  a branch of government.
[16] I mention this because the duties imposed on trustees also
formed the basis on which the court a quo granted the fourth prayer.
In my view that prayer should not have been granted, firstly, because
it  effectively deprives the council of the discretion which it plainly has
in regard to the way in which to deal with the illegal connections and
the persons who make them and,  secondly, because it ignores what
has happened in the past and what the disconnection of illegal

connections entails. In the answering affidavits it is said that the
removal of these connections has proved futile in  past attempts
because they are immediately re-established; that their removal is a life-
threatening operation; and that the council has estimated that it would
take approximately 10 000 employees working day and night to remove
them - a force which it simply cannot afford or muster.  This being so,
what further “reasonable and practical steps” are expected?
[17] For these reasons I am of the view that the appeal must be
upheld. There was some argument on costs with a suggestion that
respondent has been acting in a public-spirited manner and should not
be mulcted in costs.  I am unpersuaded that this is the spirit in which
he has been acting or, even if he has, that there is any reason not to
apply the ordinary rule that costs follow the result.  I am also satisfied
that the matter is sufficiently complex and important for the appellant

to have employed two counsel.
The appeal accordingly succeeds with costs including the costs
of two counsel.  The order of the court a quo is set aside. Substituted
therefor is an order dismissing the appeal with costs.
C PLEWMAN JA
CONCUR:
HEFER JA)
OLIVIER JA)
MELUNSKY AJA)
MTHIYANE AJA)