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[2022] ZAECGHC 18
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Africorp Graaff Reinet (Pty) Ltd v Municipal Appeal Board, Sarah Batman District and Others (2251/2020) [2022] ZAECGHC 18 (18 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE NO: 2251/2020
DATE HEARD: 21/10/2021
DATE DELIVERED:
18/01/2022
In
the matter between
AFRICORP
GRAAFF REINET (PTY)
LTD APPLICANT
and
THE
MUNICIPALITY APPEAL BOARD,
SARAH
BATMAN DISTRICT
FIRST
RESPONDENT
THE
DR BEYERS NAUDE
LOCAL
MUNICIPALITY SECOND
RESPONDENT
F2
WAARDEERDERS CC
T/A
SUID KAAP WAARDEERDERS
THIRD RESPONDENT
JUDGMENT
MABENGE
AJ:
[1]
This is an application for an order to review and set aside the first
respondent’s decision dated 20
July 2020 dismissing the
applicant’s appeal against the municipal valuation of the
applicant’s immovable property known
as Erf 7480, Graaff
Reinet. Remitting the matter to the third respondent for handling in
terms of sec 52 (1) (a) of the Local Government
Municipal Property
Rates Amendment act
[1]
.
The applicant seeks a further order that the third respondent is
ordered to complete its written reasons as contemplated in section
52
(1) (a) that the third respondent is ordered to provide written
reasons to the applicant’s attorney of record and lastly
that
the matter be heard before a differently constituted appeal board and
must be heard within one month of the third respondent’s
written reasons.
[2]
The applicant submitted that he bought the property in March 1995 in
the amount of R275 000.00. He then
developed the property. On or
about 2009 the municipal value of the property increased by more than
200%, the second respondent
set the value of the property as
R27 420 000.00. The property was further valued by the
third respondent as R37 017 000.00
during the valuation
roll of 1 July 2019. The applicant filed an appeal
against the valuation of the property to the
first respondent, the
appeal board. The appeal board found that the R37 017 000.00
valuation should remain, hence this
application to review and set
aside the decision of the first respondent. The application is
opposed by the second respondent.
[3]
The applicant submitted various grounds under which the first
respondent’s decision should be set aside.
In this application,
the applicant seeks an order reviewing and setting aside the third
respondent’s decision dated 15 January
2021 not to exercise its
jurisdiction to adjudicate the dispute involving the applicant and
the first respondent. The applicant
further seeks an order that the
first respondent must file its statement of defence upon the
applicant’s attorneys of record
and upon the third respondent
within ten (10) days of the service of the order upon the first
respondent and that the third respondent
must hold a hearing to
adjudicate the applicant’s dispute within one month of the
service of the order. The first respondent
opposed the application.
[4]
In the affidavit the applicant set out a number of instances on which
he relied for the relief sought.
[5]
The applicant submitted that the decision of the first respondent
should be set aside based on procedural
unfairness in terms of
section 6(2)(c) , taking irrelevant considerations into account,
decision not rationally connected to the
information before it and
arbitrary decision by the first respondent.
[6]
The applicant submitted that the first respondent did not consider
that the municipal evaluator no longer relied on its report
on the
day of the hearing as the evaluator received relevant
information
[2]
.
The municipal evaluator admitted that the current evaluation of R27
million was indeed incorrect. The first respondent received
the
agreement on the evaluation of the experts but did not seek further
information or clarity on the agreement which led the applicant
to
believe that the agreement was accepted by the first respondent as
the municipal evaluator was part of the agreement.
[7]
The applicant further submitted that the first respondent incorrectly
found that the act does not allow the municipal evaluator
to give
reconsideration to evaluation when new information comes to light.
[8]
The second respondent opposed the applicant stating that the
applicant had simply used PAJA and found something
amiss with each
section of the first respondent’s judgment. The applicant used
PAJA to complain about everything in the judgment.
The first
respondent had no power to uphold the appeal based on the agreement
from the experts. The second respondent further submitted
that the
onus was on the applicant to persuade the first respondent by
adducing relevant evidence which the applicant failed to
do as its
evidence was wanting in material aspects.
Discussion
[9]
It is trite that the purpose of the municipal appeal board is to find
on evidence before it the true value of the property.
In assisting
the municipal appeal board to achieve this, the board is allowed to
call a person to give evidence whether that person
is summoned or
not, and or to call a person to produce a document in that person’s
custody. The appeal board’s duty
is to consider the proceedings
de novo without placing any onus on either party. The
municipal appeal board is under
a constitutional duty to offer a fair
administrative action. The appeal board’s decision must be
rationally connected to
the information before it as contemplated in
section 6(2)(f)(ii)(c) of PAJA.
[10]
The municipal evaluator admitted that his report that he had compiled
was incorrect as he was not aware of the
letter which accompanied the
objection that the occupancy rate to the property in question is at
50%
[3]
.
The municipal evaluator stated further that he personally confirmed
the 50% vacancy rate upon his visit to the property. The evaluator
further testified that he thereafter took the actual lease and the
actual income of the building and having used the real rental
income
that has been provided by the applicant, he was then able to arrive
at the realistic value of the property hence he now
was of the
opinion that the property had been incorrectly valuated prior to this
information.
[11]
It is clear that the first respondent relied extensively on a report
by the municipal evaluator which the municipal evaluator
by his own
admission no longer relied on. This was as a result of having
received further information which the first respondent
did not take
into consideration. This shows this court that the appeal board’s
decision is not rationally connected to the
evidence that was before
it and this renders the board’s decision such that no other
reasonable decision maker could have
reached the decision as
contemplated in section 6(2)(h) of PAJA.
[12]
In the circumstances the decision of the first respondent dated 20
July 2020 dismissing the applicant’s appeal against
the
municipal valuation of the Applicant’s immovable property erf
7480, Graff Reinet is set aside.
[13]
An order is granted in terms of prayers 1 to 7 of the notice of
motion.
____________________
N MABENGE
ACTING JUDGE OF THE HIGH COURT
Appearances
Applicant: Adv E Crouse SC , instructed by
Kuban Chetty Incorporated
Respondent: Adv SC Rorke SC, instructed by
Neville Borman & Botha attorneys
[1]
Act 29 of 2014
[2]
Application page 227 lines 1-4
[3]
Volume 3 page 215 line 10