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[2015] ZASCA 182
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Uniqon Wonings v City of Tshwane (20789/2014) [2015] ZASCA 182 (30 November 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 20789/2014
Reportable
In
the matter between:
UNIQON
WONINGS (PTY) LTD
APPELLANT
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
RESPONDENT
Neutral
Citation:
Uniqon
Wonings v City of Tshwane
(20789/2014)
[2014] ZASCA 182
(30 November 2015)
Coram:
Lewis,
Cachalia, Theron, Wallis and Saldulker JJA
Heard:
2
November 2015
Delivered
30
November 2015
Summary
:
Local Authority – Municipality – Imposition of property
rates in terms of
s 10G(7)
of the
Local Government Transition
Act 209 of 1993
– When exercising its power in terms of
s 10G
no need to comply with the prescripts of provincial rating ordinance
– Not obliged to determine rates annually - Rates levied
during
a specific financial year did not lapse at the end of financial year.
ORDER
On
appeal from
:
Gauteng
Division of the High Court, Pretoria (Fabricius J sitting as court of
first instance):
The
appeal is dismissed with costs.
JUDGMENT
Theron
JA (Lewis, Cachalia, Wallis and Saldulker JJA concurring):
[1]
The primary question to be determined in this appeal is whether a
municipality was obliged, in terms of
s 10G(7)(
a
)(i)
of the Local Government Transition Act 209 of 1993 (the Transition
Act), to determine property rates annually and whether such
rates
automatically lapsed at the end of the financial year during which it
was levied. If this question is answered in the affirmative,
the
appeal must be upheld.
Factual
background
[2]
The background facts are largely common cause. At the hearing of this
matter in the high court the parties had compiled a document
titled
‘Common Cause Background Facts’ which was handed in by
consent. These facts are included in the summary that
follows.
[3]
The appellant, Uniqon Wonings (Pty) Ltd, a property developer, bought
and developed farmland into a residential estate, Six
Fountains
Residential Estate. The respondent is the City of Tshwane
Metropolitan Municipality, a Metropolitan Municipality created
in
terms of the Local Government: Municipal Structures Act 117 of 1998
(Structures Act).
[4]
The residential estate is situated within the jurisdiction of what
used to be the Kungwini Local Municipality (Kungwini) which
was
established with effect from
5
December 2000, with its demarcated area including various previously
peri-urban areas, commonly referred to as the Bronberg area.
The
Bronberg area had previously formed part of the area of jurisdiction
of the Eastern Gauteng Services Council, a local authority
as
contemplated in the Constitution and the Transition Act.
[1]
The Bronberg area, including Silver Lakes, Mooikloof and
various agricultural smallholdings and farms, was not included in
the
formal valuation roll of the Eastern Gauteng Services Council.
Kungwini was disestablished in 2011 and incorporated into the
City of
Tshwane Metropolitan Municipality.
[5]
Prior to the comprehensive restructuring of Local Government
initiated by the adoption of the interim Constitution and the
Structures Act, which created inclusive Municipal areas, the Bronberg
area did not form part of the area of jurisdiction of any
municipality and the owners of property in this area were not
required to pay property rates.
[6]
Kungwini commenced with the preparation of a valuation roll which was
applicable from July 2002 in terms of s 10G(6) of the
Transition Act.
The valuation process and roll was finalised during February 2003.
The first time that Kungwini levied property
rates in the Bronberg
area was pursuant to Local Authority Notice 4/2003 dated 19 February
2003 (the notice). The notice was not
linked to a financial year and
did not have any specified end time frame of operation. In terms of
the notice, assessment rate
tariffs of 0,02 cents per rand value as
per the valuation roll were levied from 1 April 2003. The notice was
given in terms of
s 10G(7) of the Transition Act read with s 26(2) of
the Local Authorities Rating Ordinance 11 of 1977 (the Ordinance).
The notice
was not challenged or set aside by a court. Kungwini
published various other notices which, save for the one next
mentioned, are
not relevant to this dispute. On 28 July 2004, it
published a notice in terms of which the assessment tariff was
increased to 0,054
cents in the rand for the Bronberg area.
[7]
The appellant instituted action against the respondent in which it
claimed repayment of R788 282 paid to the respondent in respect
of
property rates for the 2004/2005 financial year, on the basis that
such payment was not owing and was made without lawful cause.
It was alleged in the particulars of claim that the Transvaal
Provincial Division (as it then was) had, in
Kungwini
Local Municipality & another
v
Silver
Lakes Homeowners Association & others
(T) (unreported case no 3908/2005 (29 June 2006)), held that the
increase in property rates for Kungwini’s 2004/2005 financial
year to 0,054 cents in the rand was invalid. It was further alleged
that the increased property rates were set aside and no effective
rate was payable for the 2004/2005 financial year. Reference was also
made to the fact that this court had, on appeal to it, confirmed
that
decision of the court.
[2]
[8]
Upon application by the appellant, the court a quo in this matter
ruled, in terms of Uniform Rule 33(4), that the issues be
separated
and that the following issue be determined first: ‘whether the
allegation [by the appellant] . . . that
no effective
property rate was payable for the 2004/2005 financial year of
Kungwini Local Authority is correct or whether a property
tax rate of
0,02 cents in the rand was applicable’, as pleaded by the
respondent. The court (Fabricius J) found in favour
of the
respondent. It is against that judgment that the appellant appeals
with the leave of this court.
Legislative
framework
[9]
Reforms in the structure of local government began in the mid 1990’s
as a result of political changes in the country and
the transition
involved a staggered process to be implemented over several years.
[3]
The first step in this process was the enactment of the Transition
Act, which according to its preamble, was intended, inter alia,
to
provide interim measures to promote the restructuring of Local
Government. The Transition Act was ‘part of the statutory
scaffolding agreed upon by the negotiating parties as necessary
before, during and after the transition of national and provincial
government’.
[4]
[10]
The power of municipalities to impose property rates is derived from
s 229 of the Constitution and from legislation.
[5]
In terms of this section, municipalities have direct original
legislative capacity. Section 229(1)(
a
)
of the Constitution provides that a municipality may impose ‘(a)
rates on property and surcharges on fees for services provided
by or
on behalf of the municipality’. In terms of subsection (b) it
may, if authorised by national legislation, impose ‘other
taxes, levies and duties appropriate to local government’.
Section 229(2)(
b
)
provides that the power of municipalities to impose rates may be
regulated by national legislation.
[11]
During 1996 a number of provisions, including in particular s 10G,
which regulated the financial affairs of municipalities,
were
inserted into the Transition Act.
[6]
Section 10G(7)(a)(i)
stipulated
that a municipality may:
‘
by
resolution, levy and recover property rates in respect of immovable
property in the area of jurisdiction of the council concerned:
Provided that a common rating system as determined by the
metropolitan council shall be applicable within the area of
jurisdiction
of that metropolitan council: Provided further that the
council concerned shall in levying rates takes into account the levy
referred
to in item 1 (c) of Schedule 2: Provided further that this
subparagraph shall apply to a district council in so far as such
council
is responsible for the levying and recovery of property rates
in respect of immovable property within a remaining area or in the
area of jurisdiction of a representative council.’
[12]
Historically, municipalities in the old Transvaal province derived
their rating powers from the Ordinance. Section 21 of the
Ordinance
empowered a local authority to levy a general rate on rateable
property listed in the valuation roll for a financial
year to which
the roll is applicable.
Did
the respondent, when imposing property rates, have to comply with the
provisions of the Ordinance as well as s 10G of the
Transition
Act?
[13]
According to the appellant, the answer to this question is in the
affirmative. The appellant contended that s 10G of the Transition
Act
co-existed with the Ordinance until 2 July 2005, when the Rates Act
came into effect. Therefore, so the argument went, for
the 2004/2005
financial year, both the Transition Act and the Ordinance applied to
the levying of property rates and a municipality,
in order to validly
impose property rates, had to comply with the provisions of both
pieces of legislation.
[14]
In order to correctly answer this question it is necessary to
consider the legislative purpose of the Transition Act and the
broader context within which it was enacted. In
Liebenberg
NO & Others v Bergrivier Municipality
,
[7]
the Constitutional Court found that the legislative scheme was
‘directed at ensuring a facilitated rating mechanism for
municipalities until uniform and consistent rating systems have been
put into place’
[8]
by the
Local Government: Municipal Property Rates Act 6 of 2004 (the Rates
Act), and that one of the broader objectives for the
legislative
scheme was to ‘help, rather than hinder, the ability of
municipalities finally to come into line with the Rates
Act’.
[9]
In
City
of Cape Town & another
v
Robertson
& another
,
[10]
the Constitutional Court held (para 41) that the primary purpose of s
10G was ‘to ensure that every municipality conduct[ed]
its
financial affairs in an effective, economical and efficient manner,
with a view to optimising the use of its resources in addressing
the
needs of the community’.
[15]
Howick
District Landowners Association v uMngeni Municipality
[11]
and
CDA
Boerdery (Edms) Bpk v Nelson Mandela Metropolitan
Municipality
[12]
are
pertinent to the question to be decided in this matter. In
Howick
,
the appellant, representing landowners whose land had previously
fallen outside any municipality and who had not been required
to pay
rates, had applied to declare a rates assessment invalid.
Historically, municipalities in KwaZulu-Natal derived their rating
powers from the Local Authorities Ordinance 25 of 1974 (the Natal
Ordinance). The landowners contended, inter alia, that the valuation
roll was invalid for want of compliance with certain time periods
contained in the Natal Ordinance. Cameron JA held that the provisions
of the Natal Ordinance were not applicable to the levying of rates as
the council had invoked a power to impose rates derived from
the
Transition Act. The learned judge described such power as
‘self-standing’ and added:
’
.
. . Since the power in question does not derive from the
[Natal] Ordinance, I am of the view that the council, in exercising
it, is not obliged to follow the prescripts of the [Natal] Ordinance,
which have no application to the newly rateable properties.
It
follows, in my view, that the time periods prescribed in the [Natal]
Ordinance were applicable only to rates assessments of
properties
falling within a borough as defined “within the operation”
of the Ordinance, and that where the council
relied on the powers
conferred on it under the LGTA [Transition Act] to rate newly
rateable properties, the Ordinance did not
apply.’
[13]
[16]
The main issue in
CDA
Boerdery
,
according to Cameron JA, who wrote for the majority, was whether a
requirement in a Provincial Ordinance, which obliged the municipality
to obtain the Premier’s approval for a decision to levy rates
exceeding two cents in the rand remained valid. He rightly
said that
this provision ‘was embedded in a dispensation fundamentally
different in the position and powers it accorded local
authorities
has survived the constitutional transition’.
[14]
Cameron JA found that the provision was impliedly repealed:
‘
A
further indication that the approval requirement in s 82(1)
(a)
of the ordinance was impliedly repealed is that s 10G(6) of the Local
Government Transition Act 209 of 1993 (the LGTA) requires
that
municipalities perform valuations of the properties “subject to
any other law”. By contrast, s 10G(7), which empowers
municipalities to levy and recover property rates, has no parallel
allusion to “any other law”. This suggests that
s
10G(7) confers a freestanding rate-levying competence on
municipalities.
I therefore respectfully differ from the suggestion in the judgment
of my colleague Conradie JA (para 14) that the omission in
s 10G(7)
to subordinate the rate-levying power to requirements in “any
other law” is a legislative oversight that we
must adjust by
interpretation. In my view, it is doubtful whether the ordinance is
applicable to s 10G(7) at all, and this
strengthens the
conclusion that that portion of the ordinance was impliedly repealed
when the constitutional order was established.’
[15]
(Footnotes omitted. My emphasis.)
[17]
The Constitutional Court in
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd
adopted
an approach consonant with that of Cameron JA in
CDA
Boerdery
when
it stated that the enhanced status of local government structures
‘necessarily includes the competence and capacity on
the part
of municipalities to administer land falling within their areas of
jurisdiction without executive oversight.’
[16]
[18]
During the transition, the source of a municipality’s rating
power was s 10G of the Transition Act. Both this court and
the
Constitutional Court have confirmed that a municipality’s power
to levy rates was ‘derived from and exercised’
in terms
of section 10G(7), which was national legislation, as envisaged by
section 229(2)(b) of the Constitution.
[17]
A municipality’s delegated rating power was replaced by
original and constitutionally entrenched rating power as reflected
in
the Transitional Act.
[18]
In
Wary
Holdings
the Constitutional Court explained the enhanced powers accorded to
local government structures in the new constitutional order:
‘
They are no
longer the pre-constitutional creatures of statute confined to
delegated or subordinate legislation, but have mutated,
subject to
permissible constitutional constraints, to inviolable entities with
latitude to define and express their unique character,
and derive
power direct from the Constitution or from legislation of a competent
authority or from their own laws.’
[19]
(Footnotes omitted.)
[19]
As previously stated the rating power of a municipality has been
described by this court as ‘self-standing’.
[20]
In
CDA
Boerdery
,
Cameron characterised the rating power of municipalities, under s
10G(7) as ‘a freestanding rate-levying competence’.
[21]
In a similar vein, the Constitutional Court in
Liebenberg
stated that ss 10G(6) and (7) conferred ‘a freestanding
rate-levying competence on municipalities’.
[22]
[20]
This ‘self-standing’ or ‘freestanding’
rate-levying competence can only mean that a municipality could
levy
property rates in terms of the provisions of s 10G(7) without
reliance on or reference to the Ordinance. Unlike s 10G(6),
[23]
which required that municipalities perform valuations ‘subject
to any other law’, the exercise of rating power under
s 10G(7)
was not ‘subject to any other law’. Old order or
pre-constitutional legislation continued in force subject
to
amendment or repeal and consistency with the Constitution.
[24]
Resort was had to the old order Provincial Ordinances when necessary
and in respect of matters not covered by the Transition Act.
[21]
The applicability of the old order Provincial Ordinances arose from s
10G(6)
of the Transition Act which dealt with valuations. Section 10G(6)
provided that a municipality should, subject to any other
law, ensure
that properties within its area were valued or measured at intervals
prescribed by law. It further provided that ‘all
procedures
prescribed by law regarding the valuation or measurement of
properties’ had to be complied with.
[25]
Moseneke
J in
City
of Cape Town v Robertson
,
[26]
confirmed that the exercise of power in terms of s 10G(6) must be ‘in
accordance with procedures prescribed by any other
applicable law’.
He went on to express the view that ‘any other law’
refers to ‘property valuation legislation
applicable to the
predecessors of the City at the time of its enactment’.
[27]
The learned judge recognised that the power to levy property rates
may be qualified but noted that:
‘
The
mere qualification, that the power to impose levies on property must
be exercised subject to the procedural and other prescripts
of
another law, does not render the power ineffectual or nugatory. It
simply provides for the power to be supplemented and regulated
by
another compatible or complementary law.’
[28]
[22]
The court a quo was thus wrong in finding that there were two sources
of rating power which existed side by side and that the
municipality
had a choice as to which legislative option it could follow:
‘
It
is in my view therefore clear that if a municipality complies with
the relevant provisions of the Transition Act, one cannot
be heard to
say that its action is unlawful or invalid if at the same time it
does not also comply with every prescript of the
Rating
Ordinance.’
[29]
[23]
In reaching this conclusion the court a quo relied on the statement
by the Constitutional Court in
Liebenberg
,
that ‘the old-order legislation in terms of which
municipalities could levy rates on property remained in force’.
[30]
But this sentence was clearly
obiter
;
this was not an issue the Constitutional Court was called upon to
decide. As the Constitutional Court had affirmed that the power
to
levy rates arose from the Constitution itself and was embodied in
s 10G(7) of the Transition Act, it cannot have intended
to say
that there was an alternative source of such power. All it
meant was that where the constitutional power needed to
be
supplemented in order to be effective, the old provincial ordinances
could be used for this purpose.
[24]
A municipality is not obliged to apply both national (the Transition
Act) and provincial legislation (the Ordinance). Unless
specifically
provided by legislation, or if there is a lacuna in the Transition
Act, a municipality is not required to have regard
to the
Ordinance.
[31]
In the circumstances, Kungwini, when exercising its rating power
under s 10G(7), was not obliged to comply with the provisions
of the
Ordinance. The appellant does not contend that Kungwini was obliged
to comply with certain separate obligations in terms
of the Ordinance
not catered for in the Transition Act, but rather that s 21(1) of the
Ordinance (which provides that property
rates be levied for one
financial year) by implication formed part of s 10G(7)(
a
)(i).
The appellant’s contention that s 10G(7) and s 21(1) of the
Ordinance should be applied together, cannot be sustained.
Was
Kungwini obliged to levy property rates annually?
[25]
In terms of the Ordinance rates were required to be determined
annually. As has already been mentioned s 21(1) empowered a
local
authority to levy a general rate on rateable property listed in the
valuation roll for a financial year to which the roll
is applicable.
The appellant contended that the intention was clear that property
rates and taxes would be determined each year
and only be applicable
for one financial year and this remained unaltered in the new
dispensation. The appellant argued that s
10G(3)
(a)
(i)
(which obliged a municipality to annually approve a budget for, inter
alia, operating income and expenditure for the next financial
year)
must be read together with s 10G(7) and this reinforced the
conclusion that rates were fixed for one year only.
[26]
In support of its argument, the appellant also referred to s 12 of
the Rates Act
[32]
which provides that: (i) a municipality must levy a property
tax rate for each financial year and the rate lapses at the
end of
the financial year for which it was levied; and (ii) the levying of
rates must form part of the municipality’s annual
budget
process. Section 13 provides that rates become payable from the start
of the financial year or when the municipality’s
annual budget
is approved. It was argued that s 12(1) of the Rates Act continued
the approach and position that applied before
it was promulgated.
[27]
There is no indication in s 10G of the Transition Act that the fixing
of property rates had to form part of the municipality’s
budgetary process; that it had to be determined yearly; or that
property rates would come into operation at the commencement of
the
new financial year, as argued by the appellant. The obligatory
process of approving the budget ‘on or before the date
determined by law’ in terms of s 10G(3)
(a)
was materially different from s 10G(7)
(a)
(i)
which provides that a council may, by resolution, levy and recover
property rates with no indication as to when the municipality
should
pass such resolution. In terms of s 10G(7)
(c)
(ii)
a municipality was obliged to indicate in the relevant notice the
date on which the determination of the property rates would
come into
operation. This implied that such determination would not necessarily
come into effect on the first day of the new financial
year as does a
budget.
[28]
In any event, the interpretation contended for by the appellant
requires words to be read into s 10G(7). It suffices to say
that this
is not something that is lightly done and then only to avoid
absurdity. One can read words in but only in rare instances.
[33]
Effect can clearly be given to s 10G(7) without requiring that
property rates be levied as part of the municipality’s
budgetary
process.
[29]
Although municipalities were entitled, in terms of s 10G(7), to fix
property rates separately for each financial year (which
happened in
many instances), s 10G(7) did not oblige municipalities to do so
and did not provide that any property rates which
had been levied
during a specific financial year automatically lapsed at the end of
such financial year. The meaning of s 10G(7)
is apparent and does not
produce any absurdity, repugnancy or inconsistency.
[30]
There is no corresponding provision in the Transition Act to s 12 of
the Rates Act. The Systems Act, the Local Government:
Municipal
Finance Management Act 56 of 2003 (Finance Act), and the Rates Act
are the national legislation envisaged in s 229(2)(
b
)
of the Constitution and they govern the new system of local
government.
[34]
In
terms of the Finance Act, the financial year of municipalities
commences on 1 July of each year and ends on 30 June the following
year.
[35]
The
council of a municipality must approve an annual budget for each
financial year before the start of the financial year.
[36]
When an annual budget is tabled it must be accompanied by, among
other documents, draft resolutions approving the budget of the
municipality and imposing any municipal tax and setting any municipal
tariffs as may be required for the financial year.
[37]
It is clear from these provisions that the budget must contain
information about anticipated revenue from rates. As already
mentioned,
s 12(2) of the Rates Act provides that the levying of
rates must form part of a municipality’s annual budget process.
In terms of the new constitutional dispensation, the levying of rates
is an integral part of the budget process.
[38]
During the transitional phase there was no budgetary process as
provided in the
Finance
Act and the two processes, namely, setting the annual budget and the
fixing of rates, were not inter-related.
[31]
It was common cause that Kungwini’s various attempts to
increase property rates in the Bronberg area during the period
1
April 2003 and 30 June 2005 were unsuccessful. In
Kungwini
Local Municipality v Silver Lakes Homeowners Association
,
[39]
this court confirmed the order of the high court setting aside the
rate increases as from 1 August 2004. This court did not find
that
the rates promulgated by Kungwini for that year were invalid, as
contended by the appellant.
[32]
For these reasons, the inescapable conclusion is that a municipality,
acting in terms of s 10G(7), was not obliged to impose
property rates
annually and the levied rate did not lapse at the end of a
financial year but continued to apply until changed.
In this matter,
the rate of 0,02 cents in the rand applied until changed.
[33]
The appeal is dismissed with costs.
____________________
L V
Theron
Judge of Appeal
APPEARANCES
For
Appellant:
R Du Plessis SC (with J Stone)
Instructed by:
Len Dekker &
Associates, Pretoria
Rosendorff Reitz Barry,
Bloemfontein
For
Respondent:
H F Oosthuizen (with J A Motepe)
Instructed
by:
De
Swardt Vögel Mayambo, Pretoria
Symington
De Kok, Bloemfontein
[1]
See
Gerber
& others v Member of the Executive Council for Development
Planning and Local Government, Gauteng & another
[2002] ZASCA 128
;
2003 (2) SA 344
(SCA) paras 1, 6 and 7.
[2]
Kungwini Local
Municipality v Silver Lakes Home Owners Association & another
[2008] ZASCA 83
; 2008 (6) 187 (SCA).
[3]
Liebenberg NO &
others v Bergrivier Municipality
[2013] ZACC 16
;
2013 (5) SA 246
(CC) para 41.
[4]
Executive
Council,
Western
Cape Legislature & others v President of the Republic of South
Africa & others
[1995] ZACC 8
;
1995
(4) SA 877
(CC) para 162.
[5]
Rates Action
Group v
City
of Cape Town
[2005] ZASCA 111
;
2006 (1) SA 496
(SCA) para 10.
[6]
Local Government
Transition Act Second
Amendment Act No 97 of 1996. Section 10G was
repealed by
s 179
of the
Local Government: Municipal Finance
Management Act 56 of 2003
, which came into operation on 1 July 2005.
In terms of
s 179(2)
of that Act, the repeal of s 10G(6), (6A)
and (7) was delayed until the legislation envisaged in s 229(2)
(b)
of the Constitution was enacted. The envisaged legislation is the
Local Government: Municipal Property Rates Act 6 of 2004
which came
into operation on 2 July 2005. The Municipal Finance Management Act
must be read together with the Municipal Property
Rates Act. In
terms of the transitional provisions contained in s 88 of the
Municipal Property Rates Act, municipalities were
entitled to
continue conducting valuations and property rating in terms of
legislation repealed by that Act until the date on
which the new
valuation rolls prepared in terms of that Act took effect. See
generally
Liebenberg
NO & others v Bergvier Municipality
[2012] ZASCA 153; [2012] 4 ALL SA 626 (SCA).
[7]
Liebenberg NO &
others v Bergrivier Municipality
[2013]
ZACC 16; 2013 (5) SA 246 (CC).
[8]
Liebenberg
para 44.
[9]
Liebenberg
para 50.
[10]
City of Cape
Town & another v Robertson & another
[2004]
ZACC 21; 2005 (2) SA 323 (CC).
[11]
Howick District
Landowners Association v uMngeni Municipality & others
[2006] ZASCA 53; 2007 (1) SA 206 (SCA).
[12]
CDA Boerdery
(Edms) Bpk & others v Nelson Mandela Metropolitan Municipality &
others
[2007] ZASCA 1; 2007 (4) SA 276 (SCA).
[13]
Howick
paras
30, 31 and 33.
[14]
CDA
Boerdery
para 41.
[15]
CDA Boerdery
para 43.
[16]
Wary Holdings
(Pty) Ltd v Stalwo (Pty) Ltd & another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC) para 33.
[17]
Liebenberg
(CC)
para 41;
Liebenberg
(SCA)
para 8;
Howick
para
30.
[18]
City of Cape
Town & another v Robertson & another
[2004] ZACC 21
; (CC19/04)
2005 (2) SA 323
(CC) para 60;
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd
para
33;
CDA
Boerdery
para 38.
Minister
of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd & others
[2013]
ZACC 39
;
2014 (1) SA 521
(CC) para 24;
Gerber
& others v Member of the Executive Council for Development
Planning and Local Government, Gauteng & another
[2002] ZASCA 128
;
2003 (2) SA 344
(SCA) para 23.
[19]
Wary Holdings
(Pty) Ltd v Stalwo (Pty) Ltd
para
33.
[20]
Howick
para
30.
[21]
Para 43.
[22]
Para 42.
[23]
Section 10G(6) of
the Transition Act provided:
‘
A
local council, metropolitan local council and rural council shall,
subject to any other law, ensure that –
(a)
properties within
its area of jurisdiction are valued or measured at intervals
prescribed by law;
(b)
a single valuation
roll of all properties so valued or measured is compiled and is open
for public inspection; and
(c)
all procedures
prescribed by law regarding the valuation or measurement of
properties are complied with:
Provided
that if, in the case of any property or category of properties, it
is not feasible to value or measure such property,
the basis on
which the property rates thereof shall be determined, shall be as
prescribed: Provided further that the provisions
of this subsection
shall be applicable to district councils in so far as such councils
are responsible for the valuation or measurement
of property within
a remaining area or within the areas of jurisdiction of
representative councils.’
[24]
See
CDA
Boerdery
para
5.
[25]
CDA Boerdery
para 14.
[26]
Robertson
para 43.
[27]
Robertson
para 44.
[28]
Robertson
para 44.
[29]
Para 12.
[30]
Liebenberg
para 43.
[31]
Byrom v uMngeni
Municipality
2006 JDR 0442 (N).
[32]
Section 12 of the
Rates Act provided:
‘
(1)
When levying rates, a municipality must levy the rate for a
financial year. A rate lapses at the end of the financial year
for
which it was levied.
(2)
The levying of rates must form part of a municipality’s annual
budget process as set out in Chapter 4 of the Municipal
Finance
Management Act. A municipality must annually at the time of its
budget process review the amount in the Rand of its current
rates in
line with its annual budget for the next financial year.
(3)
A rate levied for a financial year may be increased during a
financial year only as provided for in section 28(6) of the
Municipal Finance Management Act.’ This section has since been
amended.
[33]
Barkett v SA
National Trust & Assurance Co Ltd
1951
(2) SA 353
(A) at 363 A-F.
[34]
The Preamble to
the Systems Act reads, in relevant part: ‘Whereas this Act is
an integral part of a suite of legislation
that gives effect to the
new system of local government’.
[35]
See the definition
of ‘financial year’ in the Finance Act.
[36]
Section 16(1) of
the Finance Act.
[37]
Section 17(3)
(a)
of the Finance Act.
[38]
South African
Property Owners Association v Johannesburg Metropolitan Municipality
& others
[2012] ZASCA 157
;
2013 (1) SA 420
(SCA) para 32.
[39]
Kungwini Local
Municipality
v
Silver
Lakes Home Owners Association & another
[2008]
ZASCA 83
;
2008 (6) SA 187
(SCA).