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[2015] ZASCA 162
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City of Tshwane v Uniqon Wonings (20771/2014) [2015] ZASCA 162; 2016 (2) SA 247 (SCA) (20 November 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
20771/2014
DATE: 20 NOVEMBER
2015
Reportable
In the matter
between:
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
.......................................
APPELLANT
And
UNIQON WONINGS
(PTY)
LTD
.................................................................................
RESPONDENT
Neutral Citation:
City of Tshwane v Uniqon Wonings (20771/2014)
[2015] ZASCA 162
(20
November 2015)
Coram: Lewis,
Cachalia, Theron, Wallis and Saldulker JJA
Heard: 2 November
2015
Delivered: 20
November 2015
Summary:
Municipal property rates:
s
118(1)
of the
Local Government: Municipal Systems Act 32 of 2000
:
rates are payable by a township owner over the remaining extent of
the township as a single entity, and not all the unsold erven
separately. Where a township owner sells an erf in the township, and
applies for a clearance certificate in respect of municipal
rates and
charges, required before transfer can be effected, the municipality
must determine the rates and charges payable over
the preceding two
years in connection with that erf and issue the certificate against
payment of that amount.
ORDER
On appeal from:
Gauteng Division of the High Court, Pretoria (Ebersohn AJ sitting as
court of first instance).
1 The appeal against
the first order of the court a quo is upheld and that order is set
aside.
2 The appeal against
the second order is dismissed, but the wording is replaced with:
'(a) It is declared
that the respondent is obliged to value and enter onto its valuation
roll the entire remaining Township property
of Six Fountains Estate
and not the individual erven constituting that property in terms of
the provisions of the
Local Government: Municipal Property Rates Act
6 of 2004
, and to levy property rates and taxes in terms of the Act
calculated on the value of that property for rating purposes.
(b) It is declared
that the respondent is obliged to issue clearance certificates in
terms of
s 118(1)
of the
Local Government: Municipal Systems Act 32
of 2000
in respect of any erf to be transferred to a purchaser by the
applicant once the rates and other municipal charges incurred in
connection with that erf have been determined and paid.’
3 The appeal against
the seventh order is upheld and that order is set aside.
4 The appeal against
the eighth order is upheld and is replaced with:
‘
The costs of
the application are to be paid by the respondent.’
JUDGMENT
Lewis JA (
Cachalia, Theron, Wallis and Saldulker concurring)
[1]
In 2003 Uniqon Wonings (Pty) Ltd (Uniqon), the respondent in this
appeal, a property developer, bought farmland (a portion of
a farm in
Gauteng) in the area of jurisdiction of the Kungwini Local
Municipality (Kungwini) for the purpose of township development.
On
Uniqon’s application to Kungwini, the farm was converted to a
township of 200 erven in accordance with a general plan
approved by
the Surveyor-General on 14 January 2003. On 8 April 2003 Kungwini
declared that a township, to be named the Six Fountains
Estate, was
approved in terms of s 103 of the Town Planning and Township
Ordinance 15 of 1986 (T). Six Fountains Estate now falls
within the
jurisdiction of the appellant, the City of Tshwane Metropolitan
Municipality (the City), under which Kungwini, which
was
disestablished in 2011, has been subsumed.
[2]
Since the inception of the township, Uniqon has encountered
difficulties in respect of the rates levied against the township
property. In June 2012 the City instituted action against it for
payment of arrear rates. In 2013 Uniqon sought three clearance
certificates from the City, required by s 118(1) of the Local
Government: Municipal Systems Act 32 of 2000 (the Systems Act),
before transfer of erven to purchasers can take place. The City
refused to issue the certificates on the basis that Uniqon had first
to pay the arrear rates on the entire township property. That was the
reason for Uniqon instituting an urgent application in the
Gauteng
Division of the High Court, Pretoria, for an order (amongst others)
that the City issue the clearance certificates against
tender of
payment of the rates it considered due in connection with each erf.
[3]
The dispute hinges on an interpretation of s 118(1): the section
(which I shall discuss more fully later) provides that before
the
Registrar of Deeds may register the transfer of immovable property,
the transferor must produce a certificate (known as a clearance
certificate) from the municipality in which the property is situated,
certifying that all amounts due to the municipality in respect
of
services, rates and taxes on that property have been paid. Section
118(1), in so far as relevant here, reads:
‘
Restraint
on transfer of property
(1)
A registrar of deeds may not register the transfer of property except
on production to that registrar of deeds of a prescribed
certificate—
(a)
issued by the municipality . . . in which that property is
situated; and
(b)
which certifies that
all amounts that became due in connection
with that property
for municipal service fees, surcharges on
fees, property rates and other municipal taxes, levies and duties
during the two years
preceding the date of application for the
certificate have been fully paid.
.
. .
(3)
An amount due for municipal service fees, surcharges on fees,
property rates and other municipal taxes, levies and duties is
a
charge
upon the property in connection
with
which the amount is owing and
enjoys preference over any mortgage bond registered against the
property.’ (My emphasis.)
[4]
Accordingly, where a township owner sells an erf and wishes to
transfer it to the purchaser, it must pay debts owing in connection
with the erf to the municipality in order to implement the transfer.
But how does the municipality determine what is owed in connection
with an erf that has been rated until then as part of the township?
That is the question upon which this appeal turns.
[5]
Uniqon’s application was based in the first instance on the
principle that only outstanding rates in connection with each
erf
were payable before it could obtain a clearance certificate.
But before the answering affidavit of the City was filed,
a decision
in the same Division was handed down by Prinsloo J (
Mooikloof
Estates (Edms) Bpk v Die Stadsraad van Tshwane & another
(GP), unreported case no 29998/2013, handed down on 14 June 2013). In
that matter the court held that until an erf is transferred
to a
purchaser by the township owner it does not come into existence as a
separate entity and is thus not rateable: the township
owner was thus
obliged to pay only an administration fee to the City in order to
obtain a clearance certificate, and not the arrear
rates which the
township owner considered to be payable in connection with the erf.
[6]
Jumping at the opportunity the decision offered, in its replying
affidavit, Uniqon asserted that it was liable to pay only an
administration fee to the City in order to get the clearance
certificate required to enable the Registrar of Deeds to register
transfer of an erf to a purchaser. Ebersohn AJ found for Uniqon,
granting some prayers by agreement and several others against
which
the City appeals, with the leave of this court.
[7]
The orders made by the court a quo, and against which the appeal is
directed, are:
‘
1
That the matter be treated as an urgent application and that the
respondent be ordered to issue clearance certificates within
7
(seven) days from the date of handing down this judgment, to the
applicant in respect of Stands No [1…..], [1….]
and
[1…..] in the Six Fountains Estate upon payment by the
applicant of the application fee of R50, 40 (fifty rand and forty
cents) per stand.
2
A declaratory order is issued that respondent has not been and is not
entitled to levy property rates and taxes on stands not
having been
sold by the applicant in the Six Fountains Estate to any purchasers
and not having been transferred to any separate
individual
purchasers, but is entitled only to levy property rates and taxes on
all remaining stands in the Six Fountains Estate,
still registered
under the main Title Deed No. [T2…….], as one property,
in terms of the Property Rates Act, No.
6 of 2004.
.
. .
7
That pending finalisation of any remaining dispute regarding
outstanding property rates and taxes, as referred to in the
paragraphs
of this order, respondent is ordered to issue clearance
certificates within 7(seven) days after any application for such
certificate
is made, in respect of any stand to be transferred to any
purchaser in the Six Fountains Estate if payment is made of the
application
fee applicable in respect of the issuing of a clearance
certificate, which is presently R50,40 per application.
8
The costs of this application shall be paid by the respondent on the
scale of attorney and client which costs shall include the
costs of
two counsel and the heads drawn by counsel.’
[8]
As I have said, Ebersohn AJ found that until erven had been sold and
transferred they did not come into existence. I shall deal
with that
finding and its relevance shortly. But first I shall discuss
the statutory framework that governs the rating of
immovable
property. And it is important to consider the legal principles
applicable to township rating, before discussing the interpretation
of s 118(1) of the Systems Act, read with
ss 46
and
47
of the
Deeds
Registries Act 47 of 1937
. And of course the Local Government:
Municipal Property Rates Act 6 of 2004 (the Rates Act), that governs
the rating of all immovable
property, must also be taken into
account.
The
rating of township property before all erven are sold and transferred
[9]
The general principles applicable to the rating of erven in newly
created townships have been established for many years.
The
liability to pay rates is that of the registered owner of the
property, but once a township has been laid out and a township
register opened the question may arise whether that refers to the
owner of the township or the owner of the individual lots (who
may of
course, until lots are sold, be the same person).
In
Estate Breet v Peri-Urban Areas Health
Board
1955 (3) SA 534
(T) at 537G-539H,
Ramsbottom J, in a decision of a full court on appeal, said that the
question who is the township owner depends
on who is registered as
such in the Deeds Registry. Before erven in a township are sold and
transferred, the township is registered
in the name of the owner
whose name appears on the register, which is a question of fact.
Evidence was led in that court that after
a township is proclaimed,
and in accordance with the requirements of
ss 46
and
47
of the
Deeds
Registries Act, the
Deeds Office opens a register of the township
which is contained in a separate volume. On the flyleaf of the volume
the fact of
proclamation is recorded, as is the name of the applicant
for proclamation. There is a folio for each lot as shown in the
general
plan of the township. But the register of the township does
not supersede the registration of the land on which the township is
laid out in the Register. The person who is the owner of the township
is reflected as the original owner of what was the land on
which the
township was proclaimed. (Of course the procedure is now done
electronically but the principles remain the same.)
[10]
As and when an individual erf is sold, and is transferred to the
purchaser, the transfer is registered on the individual folio
bearing
the number of the erf. And the township register is amended
accordingly. The township owner remains the owner of the remaining
extent of the township, and its name still appears on the register.
This is the basis on which townships are rated: it is the township
as
a whole or what remains that is valued and in respect of which rates
and other charges are payable to a municipality. Erven
are rated
individually only after they are sold by the township owner and
transferred to purchasers.
[11]
The methods of valuation of the remaining extent of a township after
some erven have been sold and transferred were discussed
by Kuper J,
also in a full court appeal, in
Florida
Hills Township Ltd v Roodepoort-Maraisburg Town Council
1961 (2) SA 386
(T). The court, relying on the judgment of Ramsbottom
J in
Breet
,
said (at 391H in fine) that: ‘When the area of the remainder is
reduced from time to time by the sale of individual erven
the unit of
the remainder retains its own identity and continues to appear as the
“remainder” in the Deeds Registry.’
The court went
on to determine the different ways in which a valuer may approach the
valuation of the remaining extent of a township.
[12]
These principles have been applied consistently for decades. However,
in
Heritage Hill Home Owners Association
v Heritage Hill Devco (Pty) Ltd
2013
(3) SA 447
(GNP) Kollapen J sought to distinguish
Florida
Hills
and an earlier decision to the
same effect (
Rynfield Townships Ltd v
Benoni Town Council & another
1950
(4) SA 717
(T)) on the basis that the decisions related only to
municipal valuation, whereas the court in
Heritage
Hill
was faced with the question
whether the township owner, as owner of all unsold erven, was liable
to pay levies to the homeowners’
association. In that matter,
said the court, the liability of the township owner to pay levies to
the association was regulated
by contract between all owners in the
township.
[13]
The City in this matter relies now on
Heritage
Hill
to argue that Uniqon is owner not
of the remaining extent, as a single unit, but of all the individual
erven comprising the remaining
extent, and is thus liable to pay
rates in respect of each erf. The court in
Heritage
Hill
also considered that the decision
in
Kosmos Ridge Homeowners’
Association v Cosmos Ridge (Pty) Ltd
[2003] JOL 11481
(T), which had relied on the principles set out in
Breet
and
Florida Hills
,
was wrongly decided. Much the same issue had been before the court –
whether the township owner was obliged to pay levies
to a homeowners’
association – and Hartzenberg J, relying on
Florida
Hills
and
Rynfield
Townships
, held that an erf did not
come into existence until it was sold and transferred to a purchaser:
‘[I]ndividuele erwe nie ontstaan
voordat daar ‘n
spesifieke oordrag van ‘n spesifieke erf in die Akteskantoor
geregistreer is nie’ (para 6).
[14]
Kollapen J’s decision in
Heritage
Hill
was confirmed on appeal to a full
court (
Heritage Hill Devco (Pty) Ltd v
Heritage Hill Homeowners Association
[2015]
ZAGPPHC 310 (24 April 2015)) and was approved by Kruger J in
Prospect
SA Investments 42 (Pty) Ltd v Lanarco Home Owner Association
[ZAKZPHC] 2014 39. I do not think it necessary to consider the
correctness of the principles set out in
Heritage
Hill
. The matter before us does indeed
deal with rating and not with homeowners’ associations and
their rights to levy township
owners as owners of individual erven.
And so the distinction sought to be drawn in
Heritage
Hill
between that and the rating
cases is not relevant to this decision. The City’s reliance on
it does not assist with the
interpretation of s 118(1) of the Systems
Act.
The
way rates were levied on the Six Fountains Estate
[15]
Some history of the way in which Kungwini, and the City subsequently,
rated the township shows the practice of the City in
determining the
rates for the remaining extent. Initially Kungwini valued and placed
on the valuation roll all unsold erven, and
did not rate the township
property. Individual municipal accounts were opened for the unsold
erven and not for the remaining extent
of the township. Rates were
levied against the individual erven, and not on the remaining extent,
despite the fact that it remained
as such on the register. This was
plainly incorrect.
[16]
When the City gained jurisdiction in respect of the area formerly
under Kungwini, and following complaints by Uniqon and other
developers, it attempted to remedy the situation and deal with the
township property as required by the Rates Act and the principles
of
the common law. It averred in the answering affidavit that all rates
and tax accounts in respect of unregistered erven were
being closed,
and payments in respect of them would be credited to Uniqon. A proper
valuation of the township property, as commercial
property, was
commissioned by the City, which determined the value of the remaining
extent, subject to a developer’s rebate.
The new valuation was
published in the City’s supplementary valuation roll for the
period 1 July 2010 to 30 June 2013. It
opened a new rates and
services account in respect of the township property.
[17]
But, said the City, clearance certificates in respect of
individual erven would be issued only when all municipal debts
in
respect of the entire township property were up to date. That, of
course, covered only the two-year period before a certificate
was
applied for. The City’s officials calculated the amount payable
on the value of the township property as reflected in
the
supplementary valuation roll, and that was required to be paid before
any clearance certificate could be issued. Its stance
in opposing the
application originally was thus that all debts to the City in respect
of the entire township, including the erven
to be sold, were payable
before a clearance certifcate would be issued.
Section
118(1) of the Systems Act
[18]
The argument of the City now, relying on
Heritage
Hill
, that each demarcated erf can be
rated and levied before sale and transfer by the township owner, does
not take into account the
wording of s 118(1)
(b)
of the Systems Act. So too, the decision of Prinsloo J in
Mooikloof,
which informed the decision of Ebersohn AJ on appeal before us, that
an erf does not come into existence until sold and transferred,
such
that it is not rateable as a separate entity before it is sold and
transferred, also does not take into account the clear
meaning of
s 118(1)
(b)
of the Systems Act. That provides that the clearance certificate must
certify that ‘all amounts that became due
in
connection with that property
for
municipal service fees, surcharges on fees, property rates and other
municipal taxes, levies and duties during the two years
preceeding
the date of application for the certificate have been fully paid (my
emphasis). ’
[19]
In
City of Cape Town v Real People Housing (Pty) Ltd
[2009]
ZASCA 159
;
2010 (5) SA 196
(SCA) Nugent JA pointed out (paras 1 and
2) that municipalities are obliged by the Systems Act (ss 96 and 97)
to collect moneys
payable to them for services and property rates.
They are required, to that end, to implement a credit-control and
debt-collection
policy and to adopt bylaws to give effect to the
policy and its implementation and enforcement. The purpose of ss
118(1) and (3),
he said, is to assist municipalities in two ways.
‘First, they are given security for repayment of the debt, in
that
it is a charge upon the property concerned [s 118(3)]. And
secondly, municipalities are given the capacity to block the transfer
of ownership of property until debts have been paid in certain
circumstances. That is the effect of the provisions of s118(1):
. . .’ That capacity to block arises because a registrar of
deeds cannot register a transfer until the municipality issues
the
clearance certificate applied for.
[20]
The City argued on appeal that the court a quo wrongly held that an
erf was not ‘born’ until it was transferred
and that each
erf in the township should be separately rated, even when still owned
by the township owner. It relied, as I have
said, on
Heritage
Hill
, which does not deal with the same
issue. And I fail to understand why the principles in
Breet
and
Florida Hills
(which
underlay the way in which the City sought to remedy Kungwini’s
defective rating system) should be ignored. But Uniqon’s
contention that no rates are payable at all in connection with erven
not yet transferred is equally untenable. The township owner
is
registered as such in the Deeds Registry and is liable for all
municipal charges including property rates in respect of the
entire
property comprising the township.
[21]
The question that arises, and which the court a quo did not
sufficiently consider, is what meaning is to be ascribed to ‘in
connection with
that
property’ in s 118(1) of the Systems Act. It seems
to me to be self-evident that amounts that became due
in
connection with that property
refer to
the property that is to be transferred. The phrase cannot refer to
the remaining extent which is not to be transferred.
‘In
connection with’ means ‘concerning’ (see the
Concise Oxford English Dictionary (2011) or ‘in
respect of’.
The inevitable conclusion is that only that portion of the debt due
by Uniqon in connection with, concerning
or in respect of the erf to
be transferred, owing in respect of the period of two years before
the date of application for a clearance
certificate, is payable to
the City so that it can issue the certificate in terms of s 118(1),
as it is obliged to do. This
means that it is necessary to determine
the share of outstanding rates and other charges due in connection
with the erf to be transferred,
and that must be paid before a
clearance certificare can be issued.
[22]
Uniqon argued, however, that ‘property’ is defined in the
Systems Act, as well as in the Rates Act and the other
statutes
regulating local government, as ‘immovable property registered
in the name of a person’. Until transfer of
an erf takes place,
the argument goes, it is not property because it is not itself
registered in the name of a person.
[23]
However, the definitions do not circumscribe what is meant by ‘that
property’ in s 118(1): the subsection can mean
only the
property to be transferred by the owner of the remaining extent of
the township to a purchaser of an erf designated as
such on the
township plan, whether or not it appears on the valuation roll, or is
registered as a separate entity. Significantly,
the
Deeds Registries
Act defines
an erf
(s 102)
as ‘every piece of land registered
as an erf, lot, plot or stand in a deeds registry, and includes every
defined portion,
not intended to be a public place, of a piece of
land laid out as a township, whether or not it has been formally
recognised, approved
or proclaimed as such’.
[24]
The City has, in effect, argued that we must broaden the meaning of
‘that property’ so as to read it as referring
to
remaining extent of the township. That is contrary to the general
principles of construction of statutes that interfere with
rights.
Nugent JA, in
City of Cape Town
(above)
said in para 9, referring to
Mkontwana v
Nelson Mandela Metropolitan Municipality & others
2005 (1) SA 530
(CC), that ‘statutes that intrude upon
established rights ought to be strictly construed’. He referred
in this regard
to
Dadoo Ltd & others
v Krugersdorp Municipal Council
1920 AD
530
at 552, where Innes CJ said: ‘It is a wholesome rule of our
law which requires a strict construction to be placed on statutory
provisions which interfere with elementary rights.’ In
Mkontwana
the Constitutional Court endorsed this principle in finding that
s 118(1)
, while intruding on property rights, passed
constitutional muster. In my view, the broad interpretation
advanced by the City
is contrary to this fundamental principle.
[25]
As I see it, the question to be asked, in interpreting s 118(1) of
the Systems Act, is not whether an erf has been separated
out and has
an independent existence for the purpose of obtaining a clearance
certificate. It is rather whether or not the outstanding
rates and
other charges in connection with that erf can be determined before
transfer. Although only that which is on the valuation
roll can be
rated, Uniqon was able to determine what proportion of the total
rates for the township could be ascribed to each erf
separately.
That is why it tendered to pay to the City a different amount in
respect of each erf that it had sold. I see
no reason why the City
cannot do the same. It has the plan of the township and is able to
calculate what is outstanding in connection
with a particular erf
before issuing a clearance certificate for each erf, based on the
valuation roll for the remaining extent.
[26]
That is also the only fair and equitable construction. If it were
otherwise a township owner could be prevented from developing
the
township by the imposition of charges in respect of the entire
township each time it sold an erf and wished to pass transfer.
It
would be equally unfair to deprive the City of the revenue it needs
to run the municipality by holding that only an administrative
fee is
payable for a certificate. The practical and equitable way to
determine rates for an erf before transfer is to allocate
a pro rata
share of the rates due in respect of the township as a whole, and for
the township owner to make payment of that amount
in order to comply
with the requirements for obtaining a clearance certificate. In
regard to municipal charges, unless they
are capable of allocation to
specific erven, they should be apportioned in the same way.
[27]
In this matter, in any event, Uniqon has averred that it has paid all
charges in respect of the remaining extent in the two-year
period
before applying for the clearance certificates. Disputed amounts
allegedly owed to Kungwini prior to 1 July 2011 are not
in issue for
the purpose of obtaining any of the clearance certificates. And we
were advised that the clearance certificates demanded
by Uniqon have
by now been issued.
[28]
The interpretation of s 118(1) remains in dispute, however, and it is
important that it be settled. The correct construction,
on the clear
wording of s 118(1), is that a clearance certificate must be applied
for in connection with the property (the designated
erf) that the
owner wishes to transfer. The City must certify that all amounts that
became due in connection with that property
have been fully paid. The
township owner is not obliged to pay all amounts due in respect of
the entire township when applying
for a clearance certficate in
respect of an erf sold and to be transferred.
[29]
It is the City’s obligation to determine the rates attributable
to each erf. There is, of course, nothing to preclude
township
developers, when applying for clearance certificates, from presenting
their own calculations to expedite the process.
The equitable and
practical way of assessing what is due in connection with a
particular erf would be that described in para 26.
[30]
In the circumstances, the City’s appeal against the first order
made must be upheld. The appeal against the second order,
that the
City is not entitled to levy rates in respect of individual erven
that have not yet been sold, must be dismissed, but
the order will be
replaced to reflect the findings of this court. The appeal against
the seventh order, that pending the finalization
of remaining
disputes between Uniqon and the City, the City must issue clearance
certificates against payment of R50.40, must also
be upheld.
[31]
And, finally, costs. Ebersohn AJ in the court a quo ordered costs to
be paid by the City on the scale of attorney and client.
The court
considered that the City acted unreasonably in opposing the relief
sought in the face of the judgment of Prinsloo J in
Mooikloof
.
I do not consider that a punitive costs order was warranted. The City
was entitled to proceed on the basis that
Mooikloof
,
which flew in the face of settled law over decades, was wrongly
decided and to oppose on that basis alone. Other criticisms of
the
City leveled by Uniqon about tardiness in filing papers and being
obstructive do not warrant a punitive costs order in the
court below.
[32]
As to costs in this court, each party has achieved partial success.
In the circumstances each should bear its own costs. Accordingly:
1
The appeal against the first order of the court a quo is upheld and
that order is set aside.
2
The appeal against the second order is dismissed, but the wording is
replaced with:
'(a)
It is declared that the respondent is obliged to value and enter onto
its valuation roll the entire remaining township property
of Six
Fountains Estate and not the individual erven constituting that
property in terms of the provisions of the
Local Government:
Municipal Property Rates Act 6 of 2004
, and to levy property rates
and taxes in terms of the Act calculated on the value of that
property for rating purposes.
(b)
It is declared that the respondent is obliged to issue clearance
certificates in terms of
s 118(1)
of the
Local Government: Municipal
Systems Act 32 of 2000
in respect of any erf to be transferred to a
purchaser by the applicant once the rates and other municipal charges
incurred in
connection with that erf have been determined and paid.’
3
The appeal against the seventh order is upheld and that order is set
aside.
4
The appeal against the eighth order is upheld and is replaced with:
‘
The
costs of the application are to be paid by the respondent.’
C
H Lewis
Judge
of Appeal
APPEARANCES
For
Appellant: T Strydom SC (with him A Vorster)
Instructed
by: Hugo & Ngwenya Incorporated, Centurion
Phatshoane
Henney Attorneys, Bloemfontein
For
Respondent: R du Plessis SC (with him J Stone)
Instructed
by: Len Dekker & Associates, Pretoria
Rosendorff
Reitz Barry, Bloemfontein