Kempton Park/Tembisa Metropolitan Substructure v Kelder (51/98) [2000] ZASCA 22; 2000 (2) SA 980 (SCA); [2000] 2 All SA 451 (A); (31 March 2000)

Kempton Park/Tembisa Metropolitan Substructure v Kelder (51/98) [2000] ZASCA 22; 2000 (2) SA 980 (SCA); [2000] 2 All SA 451 (A); (31 March 2000)

The Supreme Court of Appeal held that the council's resolutions did not create a binding obligation to immediately enforce credit control measures against all defaulters. The resolutions merely reaffirmed the principle of uniform tariffs and the phased implementation of credit control as set out in the Business Plan. The court rejected the respondent's argument that private law fiduciary duties derived from the law of trusts could be imposed on the council, emphasizing that its powers and duties are governed by public and administrative law. The court further found that the remedy of mandamus is discretionary and inappropriate where the duty sought to be enforced is not peremptory. The...

Citation
[2000] ZASCA 22
Parties
Appellant: Kempton Park/Tembisa Metropolitan Substructure; Respondent: Simon Jan Jacob Kelder
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2000
Case Number
51/98
Procedural Posture
Civil Appeal / Appeal From Order of Court a Quo
Outcome
Appeal upheld. The order of the court a quo is set aside and replaced with an order dismissing the application with costs, including costs of two counsel.
Judges
Hefer, Olivier, Plewman, Melunsky, Mthiyane
Legal Topics
Mandamus, Municipal Powers, Credit Control Policy, Local Government Transition, Fiduciary Duties
Administrative Law Civil Procedure Mandamus Municipal Powers Credit Control Policy Local Government Transition Fiduciary Duties

Case Brief

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Parties

Kempton Park/Tembisa Metropolitan Substructure

Appellant

Simon Jan Jacob Kelder

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Court a Quo

Legal Issues

  1. 1 Whether a municipal council can be compelled by mandamus to enforce its credit control policy immediately against defaulters.
  2. 2 Whether the council's resolutions created a binding obligation to cut off electricity supply to non-paying consumers.
  3. 3 Whether duties derived from private law of trusts can be imposed on a municipal council in the exercise of its public functions.

Ratio Decidendi

The Supreme Court of Appeal held that the council's resolutions did not create a binding obligation to immediately enforce credit control measures against all defaulters. The resolutions merely reaffirmed the principle of uniform tariffs and the phased implementation of credit control as set out in the Business Plan. The court rejected the respondent's argument that private law fiduciary duties derived from the law of trusts could be imposed on the council, emphasizing that its powers and duties are governed by public and administrative law. The court further found that the remedy of mandamus is discretionary and inappropriate where the duty sought to be enforced is not peremptory. The...

Court Disposition

Appeal upheld. The order of the court a quo is set aside and replaced with an order dismissing the application with costs, including costs of two counsel.

Orders

  • The appeal succeeds with costs, including the costs of two counsel.
  • The order of the court a quo is set aside.