002353ES.ALS ALS/es/1d/0e140797 NATI 4422-005
CASE NO: CCT8/97 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
In the matter between :
THE NATIONAL ELECTRICITY REGULATOR Applicant and
THE PRETORIA CITY COUNCIL 1st Respondent J WALKER 2nd Respondent
In re:
DIE STADSRAAD VAN PRETORIA Appellant and
J WALKER Respondent
FILING SHEET FOR APPLICATION TO BE ADMITTED AS AMICUS CURIAE
PRESENTED FOR FILING BY :
EDWARD NATHAhTfi/FRIEDLAND INC Applicant's Attorneys
4th Floor, T h e ^ 2 Maude Stre
Sandown, SANDTON Tel: (011) 269-7600 Fax: (011)269-7899 DX 70, JOHANNESBURG Ref: Ms A L Smukler/es
c/o 17th Floor, Sanlamsentrum 206/214 Jeppe Street
P 0 Box 3370 JOHANNESBURG
002353ES.ALS pa g e 2 ALS/es/id/Oel 40797
NATI 4422-005
TO:
THE REGISTRAR OF THE ABOVE HONOURABLE COURT
EDWARD NATHAN
& FRIEDLAND INC
A T T O R N E Y S
4th Roor The Forum 2 Maude Street Sandown Sandton 2196
Conesponcleooe PO Box 783347 Sandton 2146 Docex 70 JHB Telephone 269 7600 International +27 11 269 7600
Fax 269 7899 International +27 11 269 7899
Dyason Leopont
451 Kerk Street East PRETORIA
Your reference
M r H S J Kruger/M Lourens
Our reference **
Ms A L Smukler/es/2350 NATI 4422-005
Direct Phone: 269-7650 Email Address: [email protected] 14 July 1997
Dear Sirs
THE PRETORIA CITY COUNCIL v J WALKER (CASE NO. CCT8/97)
1 We act on behalf of the National Electricity Regulator ("the NER"). The NER exists as a juristic person in terms of the provisions of sections 2 and 2A of the Electricity Act, 41 of 1987.
2 We have been instructed by our client to obtain your client's written consent for our client to be admitted as amicus curiae in the aforesaid matter. Your client's consent is sought in terms of rule 9(1) of the Rules of the Constitutional Court.
3 We were advised that the appellant had sought an extension until 7 July 1997 within which to file replying heads of argument. In order to obviate any further delays, we are simultaneously seeking your consent to be admitted as amicus curiae and applying to the Constitutional Court for such admission. A copy of the application together with the annexures thereto is annexed hereto.
4 In order to assist your client in making a decision on whether or not to furnish the written consent sought by our client, we refer you to an affidavit deposed to by Christopher Michael Schoonbee CSchoonbee") and which is annexure "FA2" to our client's application to the Constitutional Court. Schoonbee is employed by the NER.
The matter contained in Schoonbee's affidavit ("FA2") falls within the requirements of rule 34(1) of the Rules of the Constitutional Court. It is matter which our client submits is incontrovertible or of a scientific or technical nature capable of easy verification.
5 Our client's interest in this appeal is set out in paragraph 6 of Schoonbee's affidavit.
We emphasize that our client does not take any position in the immediate dispute between the parties.
Directors MM Katz (Senior Partner) M Allen (British) HH Bell AC Brooking R Codron PH Cronln PV Descrolzllles AC Feinstein MJ Feinstein PL Ferrelra RT Hunter MJ Husaln KW Joselowitz EN Knowles SC Lederman SA Lewis IV Undsay (British) JM Louis WJ Mldgloy P Penchant J Schoeman G Simon AL SmuMer M Sosnovlk Cl Steinhauer KB Whyte CL Wulfsohn
practising Consultant VG Manseli Associates JR Braun AE Brink SM Haasbroek BB Hotz KF GUI BA Scop GE Stein Consultants Prof D Davis Prof MP Larkin DL MacRobert Chief Executive Officer BBH King Financial Manager SV Rodkin Assistant Financial Manager MF Marx Registration No. 77/00525/21
Page 2 14 July 1997
6 Briefly stated, our client contends that cross-subsidization in the pricing of electricity across and within sectors of consumers is both integral to and unavoidable in the selling of electricity. The nature and manner of such cross-subsidization appears more fully from the affidavit of Schoonbee. Our client is concerned that evidence on cross-subsidization in the pricing of electricity and the reasons therefor be placed before the Constitutional Court in this appeal.
7 Our client seeks to persuade the Constitutional Court not to make any general finding that, in principle and independently of any particular factual setting, cross- subsidization is unconstitutional in terms of sections 8 and 178(2) of the Interim Constitution.
8 Our client intends to place factual information before the Constitutional Court in order to demonstrate that cross-subsidization is an integral and unavoidable part of the pricing of electricity. Our client adopts the position that such cross-subsidization is not, per se, in conflict with the provisions of the Interim Constitution, but is dependent on the particular justification therefor.
9 If admitted as an amicus curiae, the submissions contained in the enclosed heads of argument (annexure "FA3" to the application to the Constitutional Court) will be advanced on behalf of our client.
10 The submissions to be advanced by our client are relevant to these proceedings for the following reasons:
10.1 In the judgment of the full bench in the court below, reference was made to the issue of cross-subsidization in the charges levied against consumers of electricity.
10.2 The particular passages from the judgment of the court below which concern our client are set out in paragraph 6.3 of Schoonbee's affidavit.
10.3 In this matter, no evidence has been led on the manner in which electricity is priced. Similarly, no evidence has been led on the operation of cross- subsidization within the system of the pricing of the sale of electricity.
10.4 Given the nature of the dispute between the appellant and the respondent, it is possible that the Constitutional Court may make a finding which impacts on the principle of cross-subsidization in the pricing of electricity generally.
10.5 The submissions which will be advanced by our client are relevant in order to assist the Constitutional Court should it make any such findings.
11 It is also for these reasons that our client's submissions will be useful to the Constitutional Court.
COPY
Page 3 14 July 1997
12 Furthermore, the submissions which our client will make are different from the submissions which will be made by the other parties in these proceedings. We say so for the following reasons:
12.1 In written argument lodged on behalf of the appellant and the respondent, it appears that the focus of both parties is on the issue of whether the charging of a "flat rate" for the consumption of electricity by residents in Mamelodi and Attridgeville is unconstitutional having regard to the fact that residents in the former "White" residential areas are charged on the basis of their consumption of electricity.
12.2 If admitted as an amicus curiae, the focus of our client's submissions will be different.
12.3 In the first place, our client intends to present the affidavit of Schoonbee as expert evidence in order to demonstrate to the Constitutional Court the nature and manner of electricity pricing.
12.4 Secondly, our client will submit that in principle, cross-subsidization is an integral part of the pricing of electricity.
12.5 Our client will also demonstrate that the electricity tariffs levied against domestic consumers of electricity are often lower than the actual cost of supplying electricity to such consumers.
12.6 Finally, our client will demonstrate that a degree of cross-subsidization both between different categories and within categories of consumers is inevitable.
12.7 The submissions which our client intends to make to the Constitutional Court if admitted as an amicus curiae all address the principle of cross-subsidization in the pricing of electricity. The issue of cross-subsidization generally is not addressed by either the appellant or the respondent. Their submissions focus on the specific dispute between them in this matter, i.e. the constitutional validity of levying electricity charges against residents in the former "White" residential areas of Pretoria based on consumption having regard to the "flat rate" levied against consumers of electricity in the townships of Mamelodi and Attridgeville.
13 Should the parties to this appeal consent to the admission of our client as amicus curiae, we propose that our client be admitted upon the following terms and conditions:
13.1 The appellant and the respondent shall be entitled to file any written argument arising out of the submissions made by our client (i.e. in the heads of argument) in terms of the provisions of rule 9(8) of the Rules of the Constitutional Court.
copy
Page 4 14 July 1997
13.2 Our client shall be entitled to present oral argument at the hearing of this maner on such terms and conditions as may be allowed by the Constitutional Court.
14 Kindly furnish us with your client's response by no later than Tuesday, 22 July 1997.
Yours faithfully
EDWARD NATHAN & FRIEDLAND INC
EDWARD NATHAN
& FRIEDLAND INC
A T T O R N E Y S
4th Floor The Forum 2 Maude Street Sandown Sandton 2196 Correspondence PO Box 783347 Sandton 2146 Docex70JHB Telephone 269 7600 International +27 11 269 7600
Fax 269 7899 International +27 11 269 7899
Dyason Leopont
451 Kerk Street East PRETORIA
Your reference
M r H S J Kruger/M Lourens
Our raference **
Ms A L Smukler/es/2350 NATI 4422-005
Direct Phone: 269-7650 Email Address: [email protected] 14 July 1997
Dear Sirs
THE PRETORIA CITY COUNCIL v J WALKER (CASE NO. CCT8/97)
1 We act on behalf of the National Electricity Regulator ("the NEFT). The NER exists as a juristic person in terms of the provisions of sections 2 and 2A of the Electricity Act, 41 of 1987.
2 We have been instructed by our client to obtain your client's written consent for our client to be admitted as amicus curiae in the aforesaid matter. Your client's consent is sought in terms of rule 9(1) of the Rules of the Constitutional Court.
3 We were advised that the appellant had sought an extension until 7 July 1997 within which to file replying heads of argument. In order to obviate any further delays, we are simultaneously seeking your consent to be admitted as amicus curiae and applying to the Constitutional Court for such admission. A copy of the application together with the annexures thereto is annexed hereto.
4 In order to assist your client in making a decision on whether or not to furnish the written consent sought by our client, we refer you to an affidavit deposed to by Christopher Michael Schoonbee ("Schoonbee") and which is annexure "FA2" to our client's application to the Constitutional Court. Schoonbee is employed by the NER.
The matter contained in Schoonbee's affidavit ("FA2") falls within the requirements of rule 34(1) of the Rules of the Constitutional Court. It is matter which our client submits is incontrovertible or of a scientific or technical nature capable of easy verification.
5 Our client's interest in this appeal is set out in paragraph 6 of Schoonbee's affidavit.
We emphasize that our client does not take any position in the immediate dispute between the parties.
Directors MM Katz (Senior Partner) M Allen (British) HH Bell AC Brooking R Codron PH Cronln PV Descrolziiles AC Feinsteln MJ Feinsteln PL Ferrelra RT Hunter MJ Husaln KW Josetowitz EN Knowles SC Lederman SA Lewis IV Undsay (British) JM Louis WJ Mldgley P Pencharz J Schoeman G Simon AL SmuWer M Sosnovik Cl Stelnhauer KB Whyte CL Wulfsohn
Practising Consultant VG Mansell Associates JR Braun AE Brink SM Haasbroek BB Hotz KF Gill BA Scop GE Stein Consultants Prof D Davis Prof MP Larkln DL MacRobert Chief Executive Officer BBH King Financial Manager SV Rodkin Assistant Financial Manager MF Marx Registration No. 77/00525/21
Page 2 14 July 1997
6 Briefly stated, our client contends that cross-subsidization in the pricing of electricity across and within sectors of consumers is both integral to and unavoidable in the selling of electricity. The nature and manner of such cross-subsidization appears more fully from the affidavit of Schoonbee. Our client is concerned that evidence on cross-subsidization in the pricing of electricity and the reasons therefor be placed before the Constitutional Court in this appeal.
7 Our client seeks to persuade the Constitutional Court not to make any general finding that, in principle and independently of any particular factual setting, cross- subsidization is unconstitutional in terms of sections 8 and 178(2) of the Interim Constitution.
8 Our client intends to place factual information before the Constitutional Court in order to demonstrate that cross-subsidization is an integral and unavoidable part of the pricing of electricity. Our client adopts the position that such cross-subsidization is not, per se, in conflict with the provisions of the Interim Constitution, but is . dependent on the particular justification therefor.
9 If admitted as an amicus curiae, the submissions contained in the enclosed heads of argument {annexure "FA3" to the application to the Constitutional Court) will be advanced on behalf of our client.
10 The submissions to be advanced by our client are relevant to these proceedings for the following reasons:
10.1 In the judgment of the full bench in the court below, reference was made to the issue of cross-subsidization in the charges levied against consumers of electricity.
10.2 The particular passages from the judgment of the court below which concern our client are set out in paragraph 6.3 of Schoonbee's affidavit.
10.3 In this matter, no evidence has been led on the manner in which electricity is priced. Similarly, no evidence has been led on the operation of cross- subsidization within the system of the pricing of the sale of electricity.
10.4 Given the nature of the dispute between the appellant and the respondent, it is possible that the Constitutional Court may make a finding which impacts on the principle of cross-subsidization in the pricing of electricity generally.
10.5 The submissions which will be advanced by our client are relevant in order to assist the Constitutional Court should it make any such findings.
11 It is also for these reasons that our client's submissions will be useful to the Constitutional Court.
Page 3 14 July 1997
12 Furthermore, the submissions which our client will make are different from the submissions which will be made by the other parties in these proceedings. We say so for the following reasons:
12.1 In written argument lodged on behalf of the appellant and the respondent, it appears that the focus of both parties is on the issue of whether the charging of a "flat rate" for the consumption of electricity by residents in Mamelodi and Attridgeville is unconstitutional having regard to the fact that residents in the former "White" residential areas are charged on the basis of their consumption of electricity.
12.2 If admitted as an amicus curiae, the focus of our client's submissions will be different.
12.3 In the first place, our client intends to present the affidavit of Schoonbee as expert evidence in order to demonstrate to the Constitutional Court the nature and manner of electricity pricing.
12.4 Secondly, our client will submit that in principle, cross-subsidization is an integral part of the pricing of electricity.
12.5 Our client will also demonstrate that the electricity tariffs levied against domestic consumers of electricity are often lower than the actual cost of supplying electricity to such consumers.
12.6 Finally, our client will demonstrate that a degree of cross-subsidization both between different categories and within categories of consumers is inevitable.
12.7 The submissions which our client intends to make to the Constitutional Court if admitted as an amicus curiae all address the principle of cross-subsidization in the pricing of electricity. The issue of cross-subsidization generally is not addressed by either the appellant or the respondent. Their submissions focus on the specific dispute between them in this matter, i.e. the constitutional validity of levying electricity charges against residents in the former "White" residential areas of Pretoria based on consumption having regard to the "flat rate" levied against consumers of electricity in the townships of Mamelodi and Attridgeville.
13 Should the parties to this appeal consent to the admission of our client as amicus curiae, we propose that our client be admitted upon the following terms and conditions:
13.1 The appellant and the respondent shall be entitled to file any written argument arising out of the submissions made by our client (i.e. in the heads of argument) in terms of the provisions of rule 9(8) of the Rules of the Constitutional Court.
WB81
Page 4 14 July 1997
13.2 Our client shall be entitled to present oral argument at the hearing of this matter on such terms and conditions as may be allowed by the Constitutional Court.
14 Kindly furnish us with your client's response by no later than Tuesday, 22 July 1997.
Yours faithfully
EDWARD NATHAN & FRIEDLAND INC
