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[2014] ZASCA 5
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City of Johannesburg Metropolitan Municipality v Chairman of the Valuation Appeal Board for the City of Johannesburg and Another (282/2013) [2014] ZASCA 5; [2014] 2 All SA 363 (SCA); 2014 (4) SA 10 (SCA) (12 March 2014)
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No:
282/2013
In the matter between:
THE CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
…...............................................................................................
Appellant
and
THE CHAIRMAN OF THE
VALUATION APPEAL BOARD
FOR THE CITY OF
JOHANNESBURG
…..........................................
First
Respondent
CONNAUGHT
PROPERTIES (PTY) LTD
.......................................
Second
Respondent
Neutral citation:
The
City of Johannesburg Metropolitan Municipality v The Chairman of the
Valuation Appeal Board for the City of Johannesburg
(282/2013)
[2014] ZASCA 5
(12 March 2014)
Coram:
Mthiyane
DP, Maya, Leach and Willis JJA and Mocumie AJA
Heard: 18 February 2014
Delivered: 12 March 2014
Summary:
Local
authority ─ valuation of rateable property zoned and used for
multiple permitted uses ─ municipal value to determine
the
rates categories into which those uses fall and to apportion the
market value between them under s 9(2) of Act 6 of 2004.
O R D E R
On
appeal from:
South Gauteng High Court,
Johannesburg (Tsoka J sitting as court of first instance):
The appeal is
dismissed with costs.
J U D G M
E N T
Leach JA (Mthiyane DP,
Maya and Willis JJA and Mocumie AJA concurring)
[1]
This is an appeal against an order by the South Gauteng High Court
dismissing an application to review a decision taken by a
valuation
appeal board established under s 56 of the Local Government:
Municipal Property Rates Act 6 of 2004, (the Act). Leave
to appeal
was refused a quo but granted by this court.
[2] Section 2 of the Act extends the power to a municipality to levy
rates on property within its municipal area. On 24 April 2008
the
appellant, the City of Johannesburg Metropolitan Municipality, acting
in purported compliance with its power to do so and its
obligation
under s 3(1), adopted a rates policy relating to the levying of
rates. It simultaneously adopted by-laws under s 6(1)
of the Act to
give effect to such rates policy. Both the rates policy and the
by-laws came into effect on 1 July 2008. By then
the appellant had
prepared a new valuation roll for the levying of rates within its
area that had lain for inspection for 90 days
from 27 February to 27
May 2008. (I should mention at this stage that the rates policy has
since been replaced and is no longer
of application. Despite this,
resolution on the parties’ dispute is not moot. It affects the
second respondent’s rates
liability already imposed and other
ratepayers in a similar position are awaiting the outcome of this
appeal, presumably with bated
breath.)
[3] Situated
in Catherine Street, Hillbrow, Johannesburg, the property that lies
at the heart of this dispute is a ten story building
known as ‘Park
Mews’. It stands on erven 3563 and 3564 that adjoin each other.
Under the applicable Johannesburg town
planning scheme, each erf is
zoned as ‘Residential A’ although the use rights include
‘shops and offices on the
ground floor’. There are
indeed shops on the ground floor of the building whilst the remaining
nine floors consist
of residential apartments. The fact that the
property is used for multiple purposes lies at the core of the
dispute between the
parties.
[4] It is
necessary to place that dispute in its statutory matrix. Section 8(1)
of the Act provides that:
‘
Subject
to section 19, a municipality may in terms of the criteria set out in
its rates policy levy different rates for different
categories of
rateable property, which may include categories determined according
to the ─
(a) use of the property;
(b) permitted use of the
property; or
(c) geographical area in which
the property is situated.’
Section
8(2) ─ which is echoed in the appellant’s rates policy ─
goes on to provide that the categories of rateable
property that may
be determined in terms of s 8(1) include both ‘residential
properties’
[1]
and ‘business and commercial properties’
[2]
Importantly, a further category mentioned in s 8(2)(
r
)
is ‘properties used for multiple purposes, subject to section
9.’
[5] Section 9
of the Act is crucial to the outcome of this matter. It provides as
follows:
‘
(1)
A property used for multiple purposes must, for rates purposes, be
assigned to a category determined by the municipality for
properties
used for─
(a) a purpose corresponding with
the permitted use of the property;
(b) a purpose corresponding with
a dominant use of the property; or
(c) multiple purposes in terms
of section 8(2)(
r
).
(2) A rate levied on a property
assigned in terms of subsection (1)(
c
) to a category of
properties used for multiple purposes must be determined by -
(a) apportioning the market
value of the property, in a manner as may be prescribed, to the
different purposes for which the category
is used; and
(b) applying the rates
applicable to the categories determined by the municipality for
properties used for those purposes to the
different market value
apportionments.’
[6]
Clause 7 of the appellant’s rates policy provided for the
appellant to levy different rates in respect of different categories
of rateable property and that rateable property ‘will be
classified in a category and will be rated based on the zoning,
or
permitted use of the property, unless otherwise stated in the
Policy’. It proceeded to determine a number of categories
of
property for the purpose of levying differential rates based on the
‘permitted use of properties’. Amongst those
listed,
echoing s 8(2), were ‘Business, Commercial and
Industrial’,
[3]
‘Residential Property’
[4]
and ‘Property used for Multiple Purposes’.
[5]
However, in seeking to ‘clarify the categories of property’
determined in clause 7, the rates policy further circumscribed
in
clause 8 that the category of property used for multiple purposes
‘shall be rated according to the highest tariff applicable
to
the permitted uses thereof’.
[7]
Both of the erven on which Park Mews stands were categorised as
‘property used for multiple purposes’ under the
rates
policy in the valuation roll that became effective on 1 July 2008.
The value of erf 3563 was reflected as R170 000 and
that of erf
3564 as R3 209 000. Essentially, then, Park Mews was valued
at R3 379 000 for rates purposes, but
without there being
any mention of the two categories of use to which the property was
being put, viz ‘business’ (relating
to the ground floor
of the building) and ‘residential’ (relating to the
remaining nine floors of residential apartments)’
nor an
apportionment of value between those categories.
[8] It is
common cause that property categorised as ‘business, commercial
and industrial’ attracted a higher rate than
that categorised
as ‘residential’. Consequently, as Park Mews was zoned as
‘property used for multiple purposes’
and one of its
permitted uses was to have shops and offices on the ground floor –
a use falling within the rates category
of ‘business’ –
the appellant’s rates policy rendered the second respondent
liable to pay rates determined
by applying the higher ‘business’
rate to the overall value of the property without any allowance being
made for the
fact that nine of the ten stories of the building were
in fact being used for residential and not business purposes.
[9]
Faced with this, the second respondent filed an objection to the
valuation roll while it was still lying for inspection. In
doing so,
it contended that there ought to have been an apportionment of the
market value between the different categories of ‘business’
and ‘residential’. Although the Act required the
objection to be decided ‘promptly’,
[6]
it took eight months for the second respondent’s objection to
be dealt with. Eventually, on 17 February 2009, the municipal
valuer
rejected the objection, stating:
‘
Property
category is correct. Multiple purpose. Zoned Rd 4’
.
[10]
Dissatisfied with this, the second respondent appealed under s 54 of
the Act to the Valuation Appeal Board of the City of Johannesburg
[7]
(whose chair is cited as the first respondent in this appeal),
stating:
‘
Please
note that we are appealing against:
1.
Incorrect
category.
2.
Market
value. Split Valuation.
’
It is clear
from its submissions accompanying the appeal that the second
respondent accepted the municipal valuer’s assessment
of the
market values of the two erven (R170 000 for erf 3563 and
R3 209 000 for erf 3564) and their categorisation
as
‘multiple purposes’, but contended that their respective
market values should also be apportioned between ‘residential’
and ‘business’ for the purpose of assessing rates. In
that regard it submitted that 79,44% of the market value should
be
allocated to ‘residential’ with the remaining
20,56% to be regarded as ‘business’.
[11] Despite
opposition from the appellant, the valuation appeal board upheld the
second respondent’s appeal on 23 March 2011.
Although it
accepted the municipal valuer’s market valuations of the two
erven and that each erf had been correctly categorised
as ‘multiple
purpose’ which had not been disputed, it held that s 9 of
the Act required the valuation roll to
reflect the apportionment of
the market value of each property between the different purposes for
which it was being used. It accordingly
directed that the values
proposed by the second respondent in respect of those categories be
‘rounded off’ and confirmed
as follows:
(a)
Erf
3563: a ‘shops value’ of R13 700
in
the c
ategory
‘business/commercial’
and
a ‘
residential’
value of R156 300
in the
c
ategory
‘residential A’;
(b)
Erf 3564: a ‘shops value’ of R259 000
in
the c
ategory
‘business/commercial’
and
a ‘
residential’
value of R2 950 000
in the
c
ategory
‘residential A’.
[12] It was
this decision that the appellant applied to have reviewed by the high
court. The basis of its review was that it had
elected to levy rates
according to the permitted uses of properties as zoned and not on
their actual use; that s 9 of the Act relates
to the actual uses of
property and is of no application to a rating system based not on
actual use but on permitted use; and that
the valuation appeal board
had therefore erred in law by having regard to s 9 and in
holding that the valuation roll ought
to have reflected the values of
the various categories of use. Consequently it sought an order
setting aside the valuation appeal
board’s decision and
declaring that the entries relating to the two erven on the valuation
roll prepared by the municipal
valuer were correct. The application
was dismissed and hence this appeal.
[13]
The appellant’s argument in its heads of argument, as I
understood it, was the following: As recognised in ss 8(1)(
a
)
and (
b
) of
the Act, there is a fundamental distinction between the actual use of
a property and its permitted use; that the appellant’s
rates
policy was based on permitted use as authorised by s 8(1)(
b
)
rather than actual use as envisaged by s 8(1)(
a
);
that the appellant was not bound to slavishly follow the categories
of rateable property set out in s 8(2) of the Act in its
rates policy
but was entitled to create category over and above those so
listed;
[8]
that the category of ‘property used for multiple purposes’
created in clause 8(1)(
r
)
in its rates policy was not what its name implied but, rather, a
category in which properties carried multiple permitted uses
under
their zoning purposes, and was not the same as that in s 8(2)(i) of
the Act which is based on actual use; and that s 9 of
the Act,
which relates to the actual use of properties and the category
referred to in s 8(2)
(i)
,
was therefore of no application.
[14] This
somewhat tortuous argument was unlikely to fly in the light of the
provisions of the Act, particularly s 2(3)(
b
) which obliges a
municipality to exercise its power to levy rates on property subject
to the provisions of the Act, s 3(1) which
requires the rates policy
to be consistent with the Act, and s 9(1) which provides
that property used for multiple purposes
must
for rates
purposes be assigned to a category determined by the municipality for
properties used in various ways. At first blush,
then, where a
property has multiple uses the provisions of s 9 become applicable,
and the argument that they do not appears to
be unsupportable.
[15] In the light of this
it is hardly surprising that the appellant abandoned this argument
(and a final decision on its correctness
or otherwise does not have
to be taken). Instead it advanced an argument not foreshadowed in its
heads, contending that:
(a)
The process of valuation and categorisation
of property in the preparation of the valuation role is the function
of the municipal
valuer.
(b)
On the other hand, as s 14(i) of the Act provides for a rate to be
‘levied by a municipality by resolution passed by the
municipal
council’, the levying of rates on the properties reflected on
the valuation roll is the function of the appellant’s
municipal council;
(c)
Section 9(2), which requires the market value of a property to be
apportioned between the different purposes for which the
property is
used and the rates applicable to the categories of properties used
for those purposes to be applied to the market
values so
apportioned, is a rates levying function;
(d)
The apportionment in s 9(2) is thus a function of the municipal
council and falls beyond the function of the municipal valuer
who,
consequently, does not have to reflect the apportioned categories
and market values on the valuation roll;
(e) Instead, all the municipal valuer has to reflect on the roll is
the zoning of a property, its market value and its category
for rates
purposes (the latter in the given case being ‘multiple
purposes’) without any further categorisation or
apportionment
of value as envisaged in s 9(2), that being a function of the
municipal council in respect of which the municipal
valuer plays no
part.
[16] On this interpretation, the appellant argued that the valuation
roll in its initial form had reflected all that had been required
from the municipal valuer and that the valuation appeal board had
erred in directing that it be amended. Accordingly, so it was
argued,
the appeal should succeed as the court a quo had erred in not setting
aside that decision.
[17] Before proceeding to deal with this argument it is unfortunately
necessary to say something about the manner and the stage
at which it
was raised. We were informed from the bar that counsel for the
respondents had been told of the appellant’s change
of stance a
few days before the appeal. This was a courtesy not afforded the
members of this court. Instead we first heard of it
when appellant’s
counsel rose to address us in court. Nor were we afforded heads of
argument dealing with the issue as we
should have been, even if they
had only been handed in during the appeal. As a result, not only were
we unable to prepare in respect
of the argument but, truthfully,
counsel were also not properly prepared. As a result, the issue was
not comprehensively canvassed
and what is set out below is largely
the fruit of this court’s research without the benefit of full
and detailed argument.
This is most undesirable, and litigating
parties are to be warned that this court will not always be as
indulgent as we were in
the present matter and that they run the risk
of their appeals being postponed or struck from the roll should
proper notice of
an argument not be given.
[18] I turn
to consider the appellant’s latest argument. In doing so, I
immediately accept that s 14(1) of the Act vests the
function of
levying rates in the municipal council. I also accept that the
compilation of the municipal valuation roll is the responsibility
of
the municipal valuer designated by the municipality under s 33(1) of
the Act who is to determine both the rates category and
the market
value of each property and to record this information on the roll.
But a closer analysis of the provisions of
the Act and the
functions of a valuer exposes the fallacy of the conclusion the
appellant seeks this court to draw.
[19] At the
outset, the scheme followed in drawing the valuation roll is
relevant. Section 34 of the Act prescribes that:
‘
The
valuer of a municipality must in accordance with this Act ─
(
a
) value all properties
in the municipality determined in terms of section 30(2);
(
b
) prepare a valuation
roll of all properties in the municipality determined in terms of
section 30(3);
(
c
) sign and certify the
valuation roll;
(
d
) submit the valuation
roll to the municipal manager within a prescribed period;
(
e
) consider and decide
on objections to the valuation roll;
(
f
) attend every meeting
of an appeal board when that appeal board ─
(i) hears an
appeal against a decision of that valuer; or
(ii) reviews
a decision of that valuer;
(
g
) prepare a
supplementary valuation roll whenever this becomes necessary;
(
h
) assist the
municipality in the collection of postal addresses of owners where
such addresses are reasonably determinable by the
valuer when valuing
properties; and
(
i
)
generally, provide the municipality with appropriate administrative
support incidental
to the valuation roll.
’
For completeness I should mention that under s 35 of the Act, the
municipal manager may designate officials of a municipality or
persons in private practice to act as assistant municipal valuers to
assist the valuer with the performance of these functions.
Section 36
also authorises the municipal manager to designate persons as
data-collectors to assist the municipal valuer with the
collection of
data ‘and other related work’. These persons may include,
but need not necessarily be, officials of the
municipality.
[20]After
collecting the necessary data and doing whatever else may be
necessary (which may require the inspection of the property
[9]
and calling on the owner, tenant or occupier of the property to
provide information
[10]
)
the municipal valuer is then to value the property ‘in
accordance with generally recognised valuation practices, methods
and
standards’
[11]
and, after doing so, to draw the valuation roll. In that regard, s
48(2) of the Act, one of the cornerstones of the appellant’s
argument, provides:
‘
The
valuation roll must reflect the following particulars in respect of
each property as at the date of valuation to the extent
that such
information is reasonably determinable:
(
a
) The registered or
other description of the property;
(
b
) the category
determined in terms of section 8 in which the property falls;
(
c
) the physical address
of the property;
(
d
) the extent of the
property;
(
e
) the market value of
the property, if the property was valued;
(
f
) the name of the
owner; and
(
g
)
any other prescribed particulars
.’
[21]
The certified valuation roll is then submitted to the municipal
manager and published for public information, with any person
who
wishes to lodge an objection in respect of ‘any matter in, or
omitted from, the roll’ being invited to do so.
[12]
The Act entitles a person to inspect the roll so published and to
lodge an objection
[13]
that is to be considered by the municipal valuer who may, as a
result, adjust or add to the valuation roll.
[14]
The objector is then entitled to be notified of the outcome of the
objection and to be given reasons for the decision taken. And
of
course, as I have already mentioned, it is against the decision taken
by the municipal valuer regarding an objection that a
right of appeal
lies to the valuation appeal board.
[22]
In the scheme of these proceedings, the function of the municipal
valuer is of considerable importance. In order to determine
the
market value of property, valuers should have regard to various
factors in order to determine what a notional willing buyer
would
probably pay to a willing seller in the open market. These include
comparable sales of similar properties in the open market;
the extent
to which the parties to previous transactions acted voluntarily and
negotiated on equal terms or acted under compulsion;
the
motivation of the respective parties in previous transactions to buy
and sell; restrictions on the use of the property and
the possibility
of their removal; the improvements on the land and the
depreciation of those improvements; the potential
uses to which the
land may be put; and the income that may be derived from the property
(this list is not meant to be exhaustive).
[15]
As was said more than a century ago in a passage regularly approved
by this court thereafter:
[16]
‘
It
may not be always possible to fix the market value by reference to
concrete examples. There may be cases where, owing to the
nature of
the property, or to the absence of transactions suitable for
comparison, the valuator’s difficulties are much increased.
His
duty then would be to take into consideration every circumstance
likely to influence the mind of a purchaser, the present cost
of
erecting the property, the uses to which it is capable of being put,
its business facilities as affording an opportunity for
profit, its
situation and surroundings, and so on. There being no concrete
illustration ready to hand of the operation of all these
considerations upon the mind of an actual buyer, he would have to
employ his skill and experience in deciding what a purchaser,
if one
were to appear, would be likely to give. And in that way he would to
the best of his ability be fixing the exchange value
of the
property.
’
[17]
[23] This remains as true
today as it did then. As was more recently commented, correctly in my
view:
‘
The
valuation process consequently calls for skill and experience,
without which a valuer would find it difficult to arrive at a
logical
deduction from the facts . . . A valuer’s awareness of existing
market conditions and trends, together with his knowledge
of the
circumstances and the facts relating to the property concerned,
enable him to understand how the buying and selling public
think, and
through his skill and experience he should be able to recognise the
elements most likely to influence intending purchasers.
’
[18]
[24]
Valuation is accordingly not an exact science. The market value of a
property can only be estimated and not precisely determined,
[19]
and a valuer is called on to exercise professional skill and
expertise in a specialised field by expressing an opinion on the
market value in monetary terms.
[20]
[25]
In order to do so, a municipal valuer needs to be appropriately
qualified. Section 39(1)
(a)
of
the Act requires a municipal valuer to be a person registered as ‘a
professional valuer or professional associated valuer’
under
the Property Valuers Profession Act 47 of 2000 (the Valuers Act)
whilst an assistant municipal valuer must be similarly registered
(although in his or her case, registration as a ‘candidate
valuer’ will suffice). But in order to be registered under
the
Valuers Act, a valuer needs to satisfy the South African Council for
the Property Valuers Profession
[21]
(the council) that he or she has passed the necessary examinations
and has ‘gained practical experience in property valuation
. .
. of the prescribed scope, variety, nature and standard’
[22]
as contained in the rules published by the council.
[23]
(Qualification requirements in respect of candidate valuers are also
prescribed but are unnecessary to consider for purposes of
this
judgment.)
[26]
In addition, but most importantly, valuers function not as
arbitrators but as estimators of value and, as such, are called
on to
exercise an honest judgment and to be influenced by neither who has
engaged them nor the purpose for which their valuations
are
required.
[24]
Simply put, valuers should be impartial in the opinions they
express.
[25]
Any doubt about this is dispelled by clause 5
(d)
of the Code of Conduct for persons
registered under the Valuers Act, drawn up by the council under s 28
of the Valuers Act.
[26]
It prescribes that any person registered under that Act shall ‘act
with the strictest independence, objectivity and impartiality
in
performing a property valuation’.
[27] As
already mentioned, s 39(1) requires the municipal valuer to be
registered as a professional valuer or professional associated
valuer
under the Valuers Act. That being so, the municipal valuer is duty
bound to comply with the norms of independence, objectivity
and
impartiality outlined in this code. That this is the case is
reinforced by the further provisions in s 39 which provide that
a
municipal valuer or an assistant municipal valuer may not be a
councillor of the relevant municipality.
[28]
The object of all of this is clear. The legislation envisages that
the valuation of rateable property is not only to be done
by an
impartial person, but that it be seen to be so done.
[27]
Thus the appointment of an independent valuer, together with the
right of objection against such valuer’s compilation of
the
valuation roll and the right of appeal to the valuation appeal board
against any decision made by the municipal valuer in respect
of an
objection, provides a bulwark between the interests of the
municipality on the one hand and the owner of the rateable property
on the other. It results in the municipality being able to levy rates
against the value of a property only where the valuation
had been
done impartially and after the voice of the taxpayer has been heard.
[29] Now it
may be so, as the appellant argued, that s 48 of the Act does not
specifically direct the municipal valuer to mention
any apportionment
of value between different categories of use, but all this would be
rendered nugatory if, after the valuation
roll has been prepared, the
municipal council could, off its own bat, so to speak, determine into
which of the different rateable
categories the property is being used
and then itself apportion market value. Indeed it would be absurd to
interpret that section
in such a way. To do so would result not only
in a municipality being able to largely turn its back on the
specialised expertise
in valuation that the Act has so carefully
bestowed upon municipal valuers, but municipal councillors, who are
specifically disqualified
from being municipal valuers by s 39 of the
Act, would be the persons vested with the authority to apportion
market value. This
could never have been intended, and really merely
has to be stated to be rejected.
[30]
Not only would the interpretation now advanced by the appellant be
absurd for the reasons mentioned, but one of the details
that has to
be recorded on the valuation roll under s 48 is ‘the category
determined in terms of section 8 in which the property
falls’.
[28]
Section 8
(r)
of
course provides for a category of ‘properties used for multiple
purposes
subject to section 9’
(my
emphasis) and, under s 45(1) of the Act, the municipal valuer is
required to carry out the valuation of rateable property in
accordance with the provisions of the Act. This clearly makes
s 9 applicable, at least in part, to the compilation of
the
valuation roll. The obvious intention is that where a property is
used for multiple purposes, those categories of use –
in
respect of which different rates are to be applied under s 9(2)
(c)
–
should be determined and
recorded, as should the values apportioned to each such category.
This is all to be done by the municipal
valuer who is, after all, the
person possessed with the necessary skill, expertise and experience
to do so (which the municipal
council lacks). Moreover,
although s 48(2) does not specifically state that the market value
apportioned between categories
of use should be recorded in instances
of multiple use properties, the provision in s 48(2)(
g
)
that the valuation roll is to include ‘any other prescribed
particulars’ in addition to those specifically mentioned,
reinforces my conclusion that the Act, properly interpreted, requires
it to be done.
[31] The
inevitable conclusion is that where a property is being used for
multiple permitted purposes, it is necessary for the municipal
valuer
compiling the valuation roll to determine and record those uses and
to apportion the market value of the property between
them. In
the present case, this was not done. The municipal valuer therefore
incorrectly dismissed the second respondent’s
objection to the
valuation roll and the valuation appeal board correctly ordered that
it should be amended.
[32] The
appeal must accordingly fail, and costs should follow that event.
There are, however, two matters that need briefly to
be mentioned.
[33] First,
in dealing with the argument as finally presented by the appellant,
it has not been necessary to consider the legality
of clause 8 of the
appellant’s rates policy. As pointed out above, in the case of
a property categorised as having multiple
purposes, this clause
allows the municipality to apply the highest tariff of the various
categories of permitted use to the overall
value of the property in
determining liability for rates. This effectively ignores the
property’s other categories of use.
But the obvious
corollary of our conclusion that it was necessary for the municipal
valuer to categorise the multiple uses
and to apportion market value,
is clear. A municipality is bound to follow the prescripts of s 9(2)
in cases of multiple use, even
where its rates policy, as in the
present instance, is based on permitted rather than actual use. And
once the valuer has categorised
the uses and apportioned value
between them, it is then for the municipality to apply the tariffs
for those categories to the apportioned
values. Section 3(1) of the
Act requires a municipal rates policy to be consistent with the Act
but clause 8 appears to fly in
the face of the Act, notwithstanding
the wide powers bestowed upon a municipality under ss 3(3)(
b
)(i)
and 3(3)(
d
). Strictly speaking it is unnecessary to reach a
final decision on this point as it is extraneous to the limited issue
we were
asked to decide, but as it was an issue raised in argument it
is best to spell out our view in that regard.
[34]
Secondly, the first respondent was represented in this appeal by a
senior counsel who appeared alone. He asked for costs ‘on
the
scale of senior counsel’. I know of no such scale. Should the
complexity of a matter and the amount involved justify
the employment
of two counsel as a wise and reasonable precaution, a court will make
a special order in that regard. Where a single
counsel is employed,
no special order is required and it is for the taxing master to
determine a fair and reasonable fee to be
allowed on taxation. Even
where the matter is one deserving of the employment of senior counsel
(which this clearly is) it would
be wrong for a court to somehow
attempt to fetter that discretion; just as it would be wrong for a
taxing master not to consider
the reasonableness of a senior
counsel’s fee in a deserving case merely as the court did not
order that the fee of a senior
counsel should be allowed. I therefore
see no need to make any specific order as to costs.
[35]
The appeal is dismissed with costs.
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: S du
Plessis SC (with him B Makola)
Instructed by:
Ramushu Mashile
Twala Inc, Sandton
Claude Reid Inc
Attorneys, Bloemfontein
For 1
st
Respondent: M Rip SC
Instructed by:
Ivan Pauw &
Partners, Durban
Phatshoane Henney
Inc, Bloemfontein
For 2
nd
Respondent: H P West
Instructed by:
Tuckers Incorporated,
Ravenwood
Phatshoane Henney Inc,
Bloemfontein
[1]
Section 8(2)(
a
).
[2]
Section 8(2)(
c
).
[3]
Clause 7(a).
[4]
Clause 7(b).
[5]
Clause 7(i).
[6]
See s 50(5) of the Act.
[7]
Established under s 56 of the Act.
[8]
In this regard reliance was placed on the
judgment of this court in
City of
Tshwane v Marius Blom & G C Germishuizen Inc
2014 (1) SA 341
(SCA) para 16.
[9]
Section 41.
[10]
Section 42.
[11]
Section 45(1).
[12]
Section 49(1)(
a
)(ii).
[13]
Section 50.
[14]
Section 51.
[15]
See eg
Estate Marks
v Pretoria City Council
1969 (3) SA
227
(A) at 253A-255A;
Minister of
Agriculture v Davey
1981 (3) SA 877
(A) at 902F-903B and
Sher and others
NNO v Administrator, Transvaal
[1990] ZASCA 77
;
1990
(4) SA 545
(A) at 547H-548J.
[16]
Eg
Sher
’s
case at 556F-H.
[17]
Per Innes J in
Pietermaritzburg
Corporation v SA Breweries
1911 AD 501
at 516.
[18]
Ellenberger
The
Valuer
(2 ed) Part 6 (Published by the
South African Institute in the Valuers’ Valuation Manual).
[19]
See
eg
Lornadawn Investments (Pty) Ltd v
Minister van Landbou
1980 (2) SA 1
(A)
at 8B-C and 19A-B.
[20]
Raubenheimer
Waardasiereg
at 4-5.
[21]
Established under s 2 of the Valuers Act.
[22]
Section 20(2)(
a
)(ii)
of the Valuers Act.
[23]
Rules for the Property Valuers’
Profession, BN 119, GG 31604, 21 November 2008.
[24]
Estate Milne v Donohoe Investments (Pty) Ltd
1967 (2) SA 359
(A) at 373H-374D.
[25]
Ellenberger at 2.
[26]
Published at
http://www.sacpvp.co.za/Portals/0/downloads/SACPVP_Code_of_Conduct.pdf.
[27]
Compare
Roodepoort
City Council v Shepherd
1981 (2) SA
720
(A) at 735A-736B.
[28]
Section s 48(2)(
b
).