City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd (232/08) [2009] ZASCA 87; [2010] 1 All SA 1 (SCA) ;2010 (3) SA 589 (SCA) (10 September 2009)

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[2009] ZASCA 87
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City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd (232/08) [2009] ZASCA 87; [2010] 1 All SA 1 (SCA); 2010 (3) SA 589 (SCA); 72 SATC 285 (10 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
232/08
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
Appellant
and
CABLE CITY
(PTY) LTD
Respondent
Neutral
citation:
City
of Tshwane v Cable City
(232/08)
[2009] ZASCA 87
(10 September 2009)
Coram:
BRAND,
CLOETE, JAFTA and MAYA JJA, HURT AJA
Heard:
18
MAY 2009
Delivered:
10
SEPTEMBER 2009
Summary:
Administrative
action – whether joinder of relevant actor necessary – whether
notice promulgated by the Minister validly authorized
by s 12(1) of
the Regional Services Councils Act 109 of 1985.
___________________________________________________________
ORDER
___________________________________________________________
On appeal
from:
High
Court, Pretoria (Fabricius AJ sitting as court of first instance).
The appeal
is
dismissed with costs including the costs of two counsel.
_________
__________________________________________________
JUDGMENT
_____________________________________
______________________
MAYA JA
(BRAND, CLOETE, JAFTA JJA and HURT AJA concurring):
[
1]
This appeal turns primarily on the validity of paragraph 11(1) of
Government Notice R 340, for the Calculation and Payment
of Regional
Services Levy and Regional Establishment Levy, dated 17 February 1987
(the Notice)
1
which empowers a council
2
to estimate the amount of any levy prescribed by the Regional
Services Councils Act 109 of 1985 (the Act), which, in its opinion,

is payable where a registered levypayer has failed to furnish any
return.
[2]
The purpose of the Act is to provide for the joint exercise and
carrying out of certain functions in certain areas by local bodies

[including local authorities] within such areas and to that end to
provide, inter alia, for the delimitation of regions and the

establishment of regional services councils. The financing of such
councils is governed by s 12 of the Act which allows them to
impose
levies; regional services levies from employers deemed to employ
employees within their regions and regional establishment
levies from
persons carrying on or deemed to be carrying on enterprises;
3
within their regions.
4
[3] Section
12(1)(b) of the Act
5
empowers the Minister of Finance (the Minister) ‘after consultation
with the Council for the Co-ordination of Local Government
Affairs
Act established by section 2 of Promotion of Local Government Affairs
Act, 1983 (Act 91 of 1983) and by notice in the Gazette,
[to]
determine the manner in which the regional services levy and the
regional establishment levy shall be calculated and paid’.
[4
]
Section 12(1A) of the Act further vests the Minister with the power
to perform a variety of acts towards that end by way of the
notice
contemplated in subsection (1)(b). Thus, the Minister may, inter
alia:
‘
(a)
...
(b)
...
(c) determine how an
amount upon which the regional establishment levy is payable shall be
calculated;
(d) exempt any
employer or person from the regional services levy or the regional
establishment levy in relation to any enterprise;
(dA) authorize the
Commissioner for Inland Revenue –
to take such steps
as the Commissioner may deem necessary to ensure that any levy
payable under [the] Act is paid;
to conduct audits
of the affairs of any person who is or may be liable for the payment
of any such levy;
to require any
person to produce for examination any books, records or accounts or
any other document which in the opinion of
the said Commissioner are
or may be necessary to determine the liability of such person or any
other person for the payment of
any such levy;
to determine or
estimate the liability of any person for any such levy and to direct
a council to make an assessment of such levy;
and
to furnish a
council with a ruling or directive on the interpretation of any
provision of [the] Act or any such notice relating
to the
determination of the liability of any person for the payment of any
such levy, which ruling or directive the council shall
be obliged to
apply;
(dB)
authorize a council to administer, subject to any ruling or directive
furnished by the said Commissioner under the provisions
of paragraph
(dA) (v), any provision of this Act or of any such notice in so far
as it relates to the payment or recovery of any
such levy;
(dC)
authorize a council, upon written application by an employer or
person and subject to such conditions as the council may determine,

to permit that employer or person to pay the total amount of the
regional services levy and regional establishment levy for which
he
is liable within a period of 20 days after the end of every period of
a year or such shorter period as the council may determine;
(dD) ...
(e) make such other
provision as he deems necessary to enable a council to impose and
claim any such levy.’
[5]
Paragraph
11 of the Notice , which was made on the basis of this legislative
framework, reads:
‘
Assessments
11
.(1)
Where any registered levypayer has failed to furnish any return
referred to in paragraph 9(4)
6
within the relevant period allowed, the council concerned may
estimate the amount of any levy which, in its opinion, is probably

payable in respect of the relevant month or period, and may make an
assessment of the amount of the unpaid levy.
(2) A council
shall give the levypayer concerned written notice of any assessment
made under subparagraph (1).
(3) The amount
of any unpaid levy shown in any such assessment shall be paid by the
levypayer within the period determined by the
council in the notice
of assessment.
(4) An
assessment made under the provisions of subparagraph (1) shall lapse
in the event of the levypayer furnishing the relevant
return.’
[
6]
Acting on the latter provisions, the appellant sought to recover
levies from the respondent and brought an action against it
in the
Transvaal Provincial Division for payment of a sum of R241 660.22
plus interest. This claim was based on what the appellant
contended
was an estimated assessment of regional services levies and regional
establishment levies allegedly owed to it by the
respondent in terms
of s 12(1) of the Act read with paragraph 11(1), accumulated during 1
May 1999 to March 2005.
[7
]
The relevant background facts and applicable legal provisions are
encapsulated in a statement of facts agreed upon by the parties
for
trial purposes and I quote them fully as they represent the sole
basis on which the court below decided the matter, the parties
having
opted not to adduce oral evidence:
‘
1.1
Plaintiff is the City of Tshwane Metropolitan Municipality, a local
authority with full legal capacity duly established in terms
of the
Local G
overnment
Municipal Structures Act 117 of 1998 read with Notice R6770 published
in the Gauteng Extraordinary Provincial Gazette
No 141 of 1 October
2000, and is the successor- in-law of the disestablished Greater
Pretoria Metropolitan Council ...
1.2 Plaintiff [the
appellant] is entitled to, in terms of section 93(6) of the Municipal
Structures Act 17 of 1998 read with section
12(1) of the Regional
Services Councils Act 109 of 1985 (hereinafter referred to as the
“Act”), levy and claim a regional services
levy and a regional
establishment levy (levies).
1.3 In terms of s
12(10) of the Act, Plaintiff is further entitled to charge interest
at the rate of 10.5% per annum on all arrear
amounts owing in respect
of levies.
1.4
Defendant [the respondent] is Cable City (Pty) Limited, a duly
registered company incorporated in terms of the Company Laws
of the
Republic of South Africa and trading as such ...
1.5 Defendant is an
employer and is carrying on an enterprise within the area of
jurisdiction of the Plaintiff and is therefore
liable towards
Plaintiff for the payment of levies to Plaintiff.
1.6
Defendant submitted a RCS 6 declaration containing its information to
Plaintiff on 23 August 2004.
1.7
Plaintiff confirmed Defendant’s registration on 12 November 2004 by
letter.
1.8
D
efendant
has at all times carried on an enterprise and been an employer as
defined in the Act as from 1 May 1999 to 30 June 2006.
1.9
Defendant is duly registered as a levy-payer under the provisions of
paragraph 10 of the Regulations issued in terms of the
Act, and is
liable to pay the levies by the Plaintiff in terms of the provisions
of section 12(1A) of the Act.
1.10 At all times
material hereto the Defendant has carried on business within the
region for which the Plaintiff was established.
1.11 Defendant has
not furnished the Plaintiff with any returns for the period 1 May 199
to date as required in paragraph 9(3) and
(4) of Government Notice
R309, as amended.
1.12
Defendant has not submitted to Plaintiff any information relating to
his enterprise except for the information contained in
the RSC 6 form
dated 23 August 2005 ...
1.13
Plaintiff has not been authorised by the Defendant to have access to
any books, accounts and records, or other documentation
relating to
Defendant’s enterprise.
1.14 Plaintiff has
not been instructed by the Commissioner of the South African Revenue
Services (SARS) to make any assessment in
terms of Government Notice
R302, as amended.
1.15 Pursuant to the
Defendant’s failure to furnish the aforesaid returns, Plaintiff has
estimated the amount of the levies, which,
in Plaintiff’s
estimation, the Defendant is liable to pay in respect of the said
period as provided for in paragraph 11(1) of
Government Notice R340
published in Government Gazette dated 17 February 1987, as amended.
1.16 Plaintiff has
on 4 July 2005 faxed ... to Defendant ... a valid assessment in terms
of the said estimate as provided for in
paragraph 11(1) of the said
notice. Defendant denies that the documents constitute a valid
assessment.
1.17 Defendant has
not paid any amounts to the Plaintiff.
1.18
SARS has not made an estimate or assessment in respect of Defendant’s
liability in respect of the aforesaid levies.
1.19 Plaintiff has
not been instructed by SARS to issue an assessment for any unpaid
levies by Defendant as provided for in paragraph
11(2) as read with
13(4) of Government Notice R304 of 17 February 1987, as amended.’
[8
]
The matter came before Fabricius AJ who, relying on
Algoa
Regional Services v Buchner
,
7
dismissed the claim on the basis that the Minister of Finance had
acted
ultra
vires
the empowering provisions contained in s 12 of the Act when he made
the regulation contained in paragraph 11(1), with the consequence

that the levies claimed on the basis of estimates made under its
provisions were unenforceable. The learned judge held further
that,
in any event, the assessment of the amount of the levies was
unreasonable and arbitrary as it was based on information totally

unrelated to the respondent’s enterprise and that the action could
have been dismissed on that ground alone. The appellant appeals

against this decision with the leave of the court below.
[9
]
In the appeal before us a challenge raised in the appellant’s
heads of argument that the respondent had failed to establish
a
defence to the appellant’s claim because the legality of Paragraph
11(1) was not properly raised in the pleadings was abandoned,
wisely
so in my view. However, the appellant, relying on the provisions of
rule of court 10A, argued – for the first time in
these proceedings
– that the matter should have been dismissed on the basis of the
Minister’s non-joinder in the proceedings
as the validity of the
impugned Notice is a constitutional issue which could not be
determined in the absence of the Notice’s
maker. The appellant also
persisted with its argument that paragraph 11(1) is valid and that
its estimate of the levies was not
arbirtary.
[10
]
I deal first with the issue of non-joinder as it is potentially
crucial to the fate of this appeal. I agree with the appellant’s

contention that the making of regulations by a Minister constitutes
administrative action within the meaning of the
Promotion of
Administrative Justice Act 3 of 2000
,
8
which must comply with the requirements of this Act in accordance
with the doctrine of legality.
9
A determination of whether public power such as this has been
exercised lawfully is indeed a constitutional matter
10
and a finding that a ‘minister acted
ultra
vires
is
in effect a finding that [he or she] acted in a manner that is
inconsistent with the Constitution and that his or her conduct
is
invalid’.
11
[11
]
According to rule of court 10A, ‘if in any proceedings before the
court, the constitutional validity of a law is challenged,
the party
challenging the law shall join the provincial or national executive
authorities responsible for the administration of
the law in the
proceedings’. As pointed out by the appellant, a court may, on this
basis, not make an order of constitutional
invalidity in relation to
legislation unless the relevant organ of State which is not a party
to the proceedings has had the opportunity
to intervene in those
proceedings.
12
[1
2]
That being said, it seems to me that the appellant misconceived the
nature and implications of the respondent’s defence and
that its
reliance on rule of court 10A is misplaced. Of first importance is
the fact that the respondent does not seek a declaration
of
constitutional invalidity and has not asked that paragraph 11(1) be
set aside, which, I think, is the remedy contemplated in
uniform rule
of court 10A. The notice in issue was found unlawful, long before
these proceedings, in
Algoa
Regional Services
,
a decision which, significantly, was never challenged. The respondent
merely relies on that settled legal precedent as a defence
against
its refusal to pay the levies, a defence which the appellant was well
aware of before the trial. In any event, the appellant
itself
administers the provisions in issue by delegation in terms of s
12(1A)(dB) and this precludes any possible prejudice. In
my opinion,
the issue is rather whether it is permissible for the respondent to
advance the defence.
[
13]
The validity of an administrative act is generally challenged by way
of judicial review. It is, however, not uncommon for a
challenge to
arise, not by the initiation of such proceedings but by way of
defence, as a collateral issue in a claim for the enforcement
or
infringement of a private law right, as the case may be. A citizen is
not required to comply with an administrative act which
is bad on its
face as it is unlawful and of no effect. He or she is entitled to
ignore it if so satisfied and justify that conduct
by raising a
‘defensive’ or ‘collateral’ challenge to its validity.
13
[14] In
Boddington
v British Transport Police
14
the
court reaffirmed a party’s right to raise a collateral challenge to
the validity of a decision to post a prohibitory notice
issued
pursuant to a byelaw by way of defence against a criminal charge of a
contravention of the byelaw. The court took the view
that there was
no reason to distinguish between civil and criminal proceedings as
settings in which the defence could be raised
and held:
15
‘
It
would be a fundamental departure from the rule of law if an
individual were liable to conviction for contravention of some rule

which is itself liable to be set aside by a court of law as unlawful.
Suppose an individual is charged before one court with breach
of a
byelaw and the next day another court quashes that byelaw – for
example, because it
was promulgated by a public body which did not take take account of a
relevant consideration. Any system of law under which the
individual
was convicted and made subject to a criminal penalty for breach of an
unlawful byelaw would be inconsistent with the
rule of law.
...
However,
in every case it will be necessary to examine the particular
statutory context to determine whether a court hearing a criminal
or
civil case has jurisdiction to rule on a defence based upon arguments
of invalidity of subordinate legislation or an administrative
act
under it. There are situations in which Parliament may legislate to
preclude such challenges being made, in the interest, for
example, of
promoting certainty about the legitimacy of administrative acts on
which the public may have to rely.
...
However
... it is well recognised to be important for the maintenance of the
rule of law and the preservation of liberty that individuals
affected
by legal measures promulgated by executive public bodies should have
a fair opportunity to challenge these measures and
to vindicate their
rights in court proceedings.’
[15
]
Thus, depending on the construction of the relevant statutory
instrument through the lens of the principles of the rule of law,
a
party has a right to raise a collateral challenge to the validity of
an administrative act where he is threatened by a public
authority
with coercive action because the legal force of such action will most
often depend upon the legal validity of the administrative
act in
question.
16
Importantly, the court has no discretion to allow or disallow a party
from raising a collateral challenge once the right to do
so has been
established.
17
The basis for this view was eloquently articulated in the
Oudekraal
Estates
decision as follows:
18
‘
The
right to challenge the validity of an administrative act collaterally
arises because the validity of the administrative act
constitutes the
essential prerequisite for the legal force of the action that follows
and
ex
hypothesi
the
subject may not then be precluded from challenging its validity. On
the other hand, a court that is asked to set aside an invalid

administrative act in proceedings for judicial review has a
discretion whether to grant or to withhold the remedy ... Each remedy

thus has its separate application to its appropriate circumstances
and they ought not to be seen as interchangeable manifestations
of a
single remedy that arises whenever an administrative act is invalid.’
[16
]
I mentioned at the outset that the respondent did not ask to have
paragraph 11(1) set aside. It merely contends that its provisions
are
unlawful for exceeding the powers of the enabling legislation and
cannot found a basis for the collection of the levies sought
to be
recovered from it. In other words, the respondent seeks to repel the
council’s coercive action ie the collection of the
levies, whose
legal force lies in the legal validity of the provisions made by the
Minister empowering the council to collect the
levies. The
appellant’s case, therefore, bearing in mind again that these
proceedings were not designed to impeach the legal
provisions in
issue, rests squarely on the validity of these provisions. If they
are unlawful, that is the end of the matter. That
being the case,
this court has no discretion regarding whether or not the respondent
may raise it and must perforce adjudicate
the case presented to it.
[
17]
As to the merits of the matter, the crisp question to be asked is
whether s 12 authorises the Minister to issue a notice which
permits
a regional services council to determine the amount of a levy simply
by estimating it. If not, paragraph 11(1) is invalid
for
inconsistency with the empowering provisions thus rendering the
appellant’s assessment of the respondent’s levies invalid.
19
[
18]
It was contended on behalf of the appellant that the Act does vest
the Minister with the power to authorize the council to
estimate the
amount of a levy especially if regard is had to the wide provisions
of s 12(1A)(e) entitling him or her to ‘make
such other provision
as he [or she] deems necessary to enable a council to impose and
claim [a] levy’. It was contended further
that the words ‘shall
be calculated’ in subsections (1)(b) and (1A)(c) must be
interpreted against the background of the definitions
of ‘regional
establishment levies’ and ‘regional services levies’ in the Act
which embody detailed provisions for the mathematical
calculation of
such levies and that they do not mean ‘a mere arithmetical
calculation’.
[
19]
Admittedly, the provisions of subsection (1A)(e) are wide. But are
they so wide as to allow the meaning contended for by the
appellant?
What is certain is that they cannot be interpreted in isolation and
must be read in conjuction with the rest of the
provisions of s 12.
20
To my mind, the starting point is to determine the meaning of the
words ‘shall be calculated’ used in s 12 (1)(b) and subsection

(1A)(c). ‘Calculate’ in the
Shorter
Oxford English Dictionary
means ‘to compute mathematically; to perform calculations; to
ascertain by mathematics’. In their ordinary, grammatical context,

the words connote a certain degree of precision which can be achieved
only by way of a mathematical exercise. This interpretation
creates
neither ambiguity nor absurdity and I see no reason to depart from
the words’ plain meaning.
[
20]
Moreover, the reading of the provisions of subsection (1A)(e)
contended for by the appellant renders subsection (1A)(c) superflous.

That, undoubtedly, cannot have been the Legislature’s intention.
And if proper effect is given to the wording of subsection (1A)(c)
in
the manner shown above, it becomes clear that subsection (1A)(e) does
not include the authority to merely estimate levies without
the
benefit of relevant and objectively identified figures.
[21] I am
fortified in this view by the provisions of subsection (1A)(dA) which
introduced the Commissioner for Inland Revenue,
vested with
significant powers, into the picture. I refer to these provisions
fully mindful of the fact that they did not exist
when the Notice was
issued. But I see no reason why we should not have recourse to them
for purposes of determining the Legislature’s
intention. They do
not seek to invalidate the old provisions of the Act and were meant
to ‘further define certain expressions
... [and] to further
regulate the financing of a council and the furnishing of information
to a council’.
21
By distinguishing between the powers vesting in the Commissioner and
the council as they do, they explain what was in the Legislature’s

mind when it enacted s 12.
[22] The
subsection expressly authorizes only the Commissioner, among other
things, to examine a levypayer’s supporting documentation
from
which a determination of liability can be quantified. Interestingly,
the Notice itself precludes a council from accessing
a levypayer’s
documentation.
22
The Commissioner, significantly, is an expert with vast auditing
skills and machinery to conduct the necessary verification. He
or she
has access to all taxpayers’ financial information, in
circumstances of confidentiality, upon which to make assessments

which a council does not possess as shown by the provisions of s 15
of the Act which authorize the Comissioner ‘to furnish to
a council
such information as in [his] opinion is necessary for the
determination and collection of ... [levies]’.
[
23]
The subsection further authorizes only the Commissioner to ‘determine
or estimate’ a levypayer’s liability, where unable
to make a
calculation despite the exercise of his or her powers, and then to
‘direct a council to make an assessment of such
levy’. Quite
apart from the use of the disjunctive ‘or’ between ‘determine’
and ‘estimate’, which draws its own distinction
between the
meaning of the words, these provisions clearly show that it is only
in these circumscribed circumstances in which the
Commissioner is
involved that a council may make an estimate.
[
24]
Considering the Act as a whole and the wording of s 12, the
implication appears ineluctable that the Legislature never intended

councils to have power to summarily estimate levies and did not grant
the Minister authority to permit such exercise. I agree with
the
court below and the reasoning followed in the
Algoa
Regional Services
decision
therefore that the provisions of paragraph 11(1) are
ultra
vires
the empowering provisions set out in s 12 of the Act and are
unlawful. This finding, in my view, dispenses with the need to
consider
the other issues raised in the appeal.
[25] In the
result, the appeal is dismissed with costs, such costs to include the
costs of two counsel.
_______________________
MML MAYA
JUDGE OF APPEAL
APPEARANCES:
For
appellant: JP Vorster SC
M Snyman
Instructed
by:
Hugo
& Ngwenya Inc, Centurion
c/o
Meintjes & Petzer
Claude Reid
,
Bloemfontein
For
respondent: P Ellis SC
Y Coertzen
Instructed
by:
Viljoen Attorneys
c/o Adriaan Booysen Attorneys,
Pretoria
Symington
& De Kok, Bloemfontein
1
As amended by GN R783 of 21 April 1989.
2
Defined in s 1 of the Regional Services Councils Act 109 of 1985 as
‘a regional services council established under s 3’.
These
councils and the levies they were allowed to impose by the latter
Act and the KwaZulu and Natal Joint Services Act 84 of
1990 have
since been abolished by
s 59
of the
Small Business Tax Amnesty and
Amendment of Taxation Laws Act 9 of 2006
although municipal councils
were allowed to collect outstanding levies up to 30 June 2006. The
present matter is, however, not
affected by this amendment as the
summons was issued on 27 October 2005.
3
Defined in
s 1
as ‘any trade, business, profession, or other
activity of a continuing nature, whether or not carried on for the
purpose of
deriving a profit, but excluding any religious,
charitable or educational activity carried on by any religious,
charitable or
educational institution of a public character’.
4
Section 12(1)(a).
5
Substituted by
s 8
of Act 78 of 1986.
6
Paragraph 9(4) provides that ‘[e]very person who is registered as
a levypayer under the provisions of paragraph 10, shall within
the
period allowed by subparagraph (1) or (2) furnish the council with
the return referred to in subparagraph (3) in respect
of every month
or other period, as the case may be, whether or not any relevant
levy is payable in respect of such month or period.’
7
An unreported judgment of the Eastern Cape
Division in Case No. 1150/94 delivered on 5 June 1995 by Jones J.
8
Minister of Health NO v New Clicks SA (Pty) Ltd
(TAC as
Amici Curiae)
2006 (2) SA 311
(CC) paras 128, 135.
9
Pharmaceuticals Manufacturers Association of SA: In Re Ex Parte
President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 50.
10
Id
at para 51;
MEC for Local Government and Development
Planning, Western Cape v Paarl Poultry Enterprises CC
2002 (3)
SA 1
(CC) para 6.
11
Affordable Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006 (3) SA
247
(CC) para 50;
Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 58.
12
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour
intervening)
1999 (2) SA 1
(CC) para 7;
Van der Merwe v Road
Accident Fund
(Women’s Legal Centre Trust as
Amicus
Curiae
)
[2006] ZACC 4
;
2006 (4) SA 230
(CC) para 7.
13
Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6) SA
222
(SCA) at 244C.
14
[
[1998] UKHL 13
;
1999] 2 AC 143
(HL).
15
At 153H-154A; 160C; 161D.
16
Oudekraal Estates Pty Ltd
(supra) at 245G-H.
17
Ibid
at 246B.
18
At 246C-D.
19
Komani NO v Bantu Affairs Administration
Board, Peninsula Area
1980
(4) SA 448
(A) at 469A-B.
20
Algoa Regional Services v Buchner
(supra)
above n 7.
21
Preamble of Act 78 of 1986.
22
Paragraph
13 of the Notice provides that ‘[a] council shall be responsible
for the administration of the provisions of this
Schedule, but shall
not be empowered to require any person to produce any books,
records, accounts or other documents in relation
to any regional
services levy and regional establishment levy or to require any
levypayer to substantiate any return submitted
by him in connection
with any such levy.’