The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Walker

Pretoria City Council v. Walker  () SA  (CC) CASE SUMMARY Facts Mr. Walker, a resident of Constantia Park, a formerly white suburb of Pretoria, challenged the constitutionality of certain actions of the Pretoria City Council. The council was established after the amalgamation of a number of former black townships (Atteridgeville and Mamelodi) and Pretoria. For at the time of the litigation, the population of Atteridgeville and Mamelodi was virtually all black, while the denizens of old Pretoria were almost exclusively white. The council had sued Mr. Walker for overdue charges in respect of municipal services rendered to him. The issue arose from the levying by the council of charges for water and electricity on a differential basis. Charges were levied against Mr. Walker and other residents of old Pretoria on the basis of a consumption-based tariff measured by means of meters installed on each property. The residents of Mamelodi and Atteridgeville, however, due to absence of meters, were levied on the basis of a flat rate per household. In addition to the differential rates charged to residents , the council adopted a policy of instituting legal action for the recovery of arrears only against the nonpaying residents of old Pretoria, but not in respect of defaulters in Atteridgeville and Mamelodi. Mr. Walker refused to pay a metered rate and was prepared to pay only an amount equivalent to the flat rate. Walker Legal History When sued in the Magistrate’s Court for nonpayment of his rates charges, Mr. Walker contended, as a defense, that the differential treatment of the people of old Pretoria on the one hand and those of Atteridgeville and Mamelodi on the other constituted unfair discrimination under section () of the Interim Constitution. The magistrate held that the differentiation amounted to discrimination on geographical grounds, and not on the basis of race. He went on to hold that this geographical discrimination had not been shown to be unfair. Walker appealed to the High Court. The High Court held that the council had, in fact, infringed Walker’s right to equality. The High Court set aside the magistrate’s order. It substituted the magistrate’s order with an order of absolution plus costs. The council then sought leave to appeal to the Constitutional Court. Issues The Constitutional Court was obliged to decide whether (a) the council’s policy of charging differential rates in old Pretoria and Atteridgeville and Mamelodi; and (b) its policy of litigating to recover unpaid rates only in respect of old Pretoria, constituted unfair discrimination in terms of section  of the Interim Constitution. Decision of the Constitutional Court Deputy President Langa, writing for the majority, held that the council differentiated between Mr. Walker and other residents of old Pretoria and those of Atteridgeville and Mamelodi by levying charges on a differential basis and by selectively suing nonpaying residents of old Pretoria alone. He held that this differentiation amounted to indirect discrimination on the basis of race. Deputy President Langa explained that the fairness of this discrimination involved an examination of the impact of the discrimination on Mr. Walker (paragraph ). With regard to cross-subsidization and the council’s failure to apply metered rates uniformly, he concluded that the discrimination was not unfair. In relation to selective recovery of debts, however, the majority held that the impact of the policy affected Mr. Walker in a manner that impaired his dignity. The selective enforcement policy was, therefore, unfair (paragraph ). Justice Sachs agreed in general with Deputy President Langa’s judgment. He dissented from the majority’s view that selective enforcement of debt recovery by the council amounted to unfair discrimination. He noted that, in what appeared to have been an effort to rise above the politics of race and articulate the spirit of civic responsibility and compassion that animated the Constitution, the council had embarked upon a negotiated, step-by-step process to fulfill its obligations to those residents whom previous local governments had at best ignored and at worst oppressed. Such a process, however ineptly carried out at times, was aimed at overcoming the practical difficulties and psychological factors that kept this urban community divided and systemic disadvantage deeply entrenched.  Legal Cases (–) Order Despite partially finding in Walker’s favor, the court upheld the city’s appeal. While the selective enforcement amounted to unfair discrimination, Walker should not have withheld payment. He should have applied to a court for a declaration of rights which...