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[2021] ZASCA 155
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eThekwini Municipality and Another v Independent Schools Association of Southern Africa and Others (960/2019) [2021] ZASCA 155; [2022] 1 All SA 17 (SCA) (3 November 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 960/2019
In
the matter between:
eTHEKWINI
MUNICIPALITY
FIRST APPELLANT
STELLENBOSCH
MUNICIPALITY
SECOND
APPELLANT
and
INDEPENDENT
SCHOOLS ASSOCIATION
OF
SOUTHERN AFRICA
FIRST RESPONDENT
THE
NATIONAL MINISTER FOR
COOPERATIVE
GOVERNANCE AND
TRADITIONAL
AFFAIRS
SECOND RESPONDENT
THE
NATIONAL MINISTER OF FINANCE THIRD
RESPONDENT
Neutral
citation:
eThekwini
Municipality and Another v Independent Schools Association of
Southern Africa and Others
(960/2019)
[2021] ZASCA 155
(3 November 2021)
Coram:
MBHA, DLODLO and
MBATHA JJA and LEDWABA and UNTERHALTER AJJA
Heard:
15 March 2021
Delivered:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 3 November
2021.
Summary:
The Local Governance
Municipal Property Rates Act, 6 of 2004 (the MPRA) – local
government – power of the Minister to
promulgate regulations to
cap municipal rates on property belonging to public benefit
organisations – municipalities are
bound to comply with amended
regulations.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Durban (Lopes J sitting as court of first
instance): judgment reported
sub
nom
Independent
Schools Association of Southern Africa v eThekwini Municipality and
Another
2020
(2) SA 235
(KZD).
a.
The
appeal is dismissed.
b.
The
appellants are liable jointly and severally, the one paying the other
to be absolved, for the costs of the first, second and
third
respondents, including the costs of two counsel.
c.
The
first respondent’s cross appeal is dismissed with no order as
to costs.
JUDGMENT
Ledwaba
AJA (
Mbha,
Dlodlo and Mbatha JJA and Unterhalter AJA
concurring)
:
Introduction
[1]
This is an appeal by the first and second appellants,
eThekwini Municipality (eThekwini) and Stellenbosch
Municipality
(Stellenbosch) against the judgment and order of the KwaZulu-Natal
Division of the High Court, Lopes J, which was
delivered on 3 July
2019. The first, second and third respondents are the Independent
Schools Association of Southern Africa (ISASA),
the National Minister
for Cooperative Governance and Traditional Affairs
(Minister for CoGTA), and the National Minister
of Finance
(Minister of Finance). The issues in this appeal arise
from the amendment of national regulations promulgated
by the
Minister for CoGTA in March 2010 in terms of s 19
[1]
and s 83
[2]
of the Local
Governance Municipal Property Rates Act 6 of 2004 (the MPRA). The
2010 regulations amended the regulations that were
passed in 2009
under the same provisions of the MPRA. The amendment capped the rates
that municipalities may levy on,
inter
alia,
property owned by public benefit organisations (PBO property), by
means of a prescribed ratio based on the rates on residential
property.
[2]
After the promulgation of the 2010 regulations, ISASA filed an
application ( the main application) in
the Kwa-Zulu Natal Division of
the High Court, Durban (the high court), seeking an order to bar
eThekwini from levying a rate in
excess of 25 per cent of the rate
levied on residential property in respect of PBO property. It
is common cause that ISASA
owns PBO properties throughout South
Africa. Stellenbosch was later joined as the second respondent.
eThekwini brought a counter-application
to challenge the validity of
the 2010 regulations and the constitutionality of s 19 of the MPRA.
ISASA then made a conditional
collateral application challenging the
validity of the rates policies of eThekwini made after the 2010
regulations.
[3]
The high court granted the order sought by ISASA.
[3]
eThekwini and Stellenbosch filed a notice of intention to appeal
against the order. Lopes J granted the appellants leave to appeal
to
this Court and further granted ISASA leave to cross-appeal.
[4]
The main issues for adjudication in the high court were: whether the
2010 amended regulation, properly
interpreted, applied to eThekwini;
whether the 2010 regulations were valid; and whether s 19(1)
(b)
and the amended 2010 regulations were unconstitutional.
Factual
background
[5]
It is important first to summarise the background of this matter. On
19 December 2007, the
Minister for CoGTA published draft
regulations for comment in the Government Gazette in terms of s 19(1)
of the MPRA, dealing with
a proposed rate ratio, relative to
residential property, in respect of six categories of non-residential
property, namely:
i.
agricultural
property;
ii.
business
and commercial property,
iii.
industrial
property,
iv.
mining
property,
v.
public
benefit organisation property, and
vi.
state-owned
property
For PBO property,
the proposed rate was 25 percent of the rate on residential property.
[6]
Comments were received from nine municipalities and 34
non-governmental private and civic organisations.
eThekwini and
Stellenbosch participated through the South African Local Governance
Association (SALGA). The Minister for CoGTA
did not receive any
objections to the proposed amendment. Importantly, eThekwini and
Stellenbosch did not object to the inclusion
of PBO property and the
proposed ratio applicable to them.
[7]
On 22 February 2008, the Department of Provincial and Local
Government consulted with eThekwini regarding
the draft regulations.
In the said meeting, eThekwini did not favour the position of the
Minister for CoGTA and the Minister
of Finance that restricted
how levies should be charged. As indicated, however, no formal
objection was lodged.
[8]
On 27 March 2009, the Minister for CoGTA, with the concurrence of the
Minister of Finance, in terms
of s 19(1) of the MPRA, promulgated the
2007 draft regulations which were to be effective from 1 July 2009.
But the published 2009
regulations omitted to include PBO property as
the 2007 draft regulations had done. Only two categories, namely
agricultural property
and public service infrastructure property,
were included. This implied that PBO properties were excluded from
properties which
would not be rated in excess of 25 percent of
residential property. As a result of the omission, in September 2009,
ISASA brought
a review in the Gauteng Division of the High Court,
Pretoria (the Gauteng High Court), challenging the omission of the
PBO property
in the regulations. The respondents in this review were
the Minister for CoGTA, the Minister of Finance and SALGA. Public
notice
of the application was also given in terms of Uniform Rule
16A. Importantly, correspondence was also addressed to eThekwini,
specifically
drawing its attention to the application in the Gauteng
High Court. SALGA did not oppose the application and neither did
eThekwini
seek to intervene. There was no reaction to the Rule 16A
notice.
[9]
On 15 March 2010 the Gauteng High Court made the following order:
‘…
,BY
AGREEMENT BETWEEN THE PARTIES IT IS ORDERED THAT: -
(1)
The
First and Second Respondents shall pursuant to the provisions of
Sections 19(1)(b) and 83 of the Local Government Municipal
Property
Rates Act, No.6 of 2004 (“the Rates Act”) publish
regulations in the Government Gazette prescribing an upper
limit rate
ratio of 1:0:25 for properties owned by the Public Benefit
Organisations as contemplated in Section 8(2)(q) of the Rates
Act
(“the Regulations”);
(2)
The
First and Second Respondents will publish the Regulations by no later
than Tuesday, 30
th
March 2010;
(3)
The
matter will be postponed
sine
die
pending compliance by the First and Second Respondents with Prayers 1
to 2 above and for a period of one year after such compliance;
(4)
The
First and Second Respondents will pay the Applicant’s costs
jointly and severally, the one paying the other to be absolved,
such
costs to be payable on the making of this settlement agreement an
Order of Court.’
[10]
The Minister for CoGTA was advised by his senior counsel that it was
not necessary to start the process of publication
afresh, so as to
avoid duplication. It is important to mention that the aforesaid
court order has to date neither been appealed
nor set aside. The
order remains valid and enforceable. The publication of the
regulations, on 12 March 2015, before the court
order does not make
the regulations invalid. ISASA explained that the regulations were
published earlier because ISASA and both
Ministers reached an
agreement before the high court gave its order.
Further
applications
[11]
eThekwini did not comply with the amended published regulations, its
reason being that PBO property was not one
of the defined categories
of rate payers in the 2009 regulations. eThekwini’s conduct
triggered ISASA to issue another application
(the main application)
in June 2010 in the high court. It sought an order to bar eThekwini
from levying a rate in excess
of 25 percent of the rate levied on
residential property in respect of PBO property belonging to its
members.
[12]
eThekwini opposed the main application and filed a
counter- application seeking,
inter alia,
an order: that
the decision of the Minister for CoGTA, concurred to by the Minister
of Finance, to amend the 2010 regulations promulgated
in terms of the
MPRA and published in the Government Gazette on 12 March 2010,
should be reviewed and set aside; that the
amended regulations be
declared invalid; and that eThekwini was not obliged to comply with
the amended regulations. eThekwini further
sought a declaration that
s 19(1)
(b)
of the MPRA is unconstitutional and invalid to the
extent that it restricts the powers of a municipality to levy rates
at ratios
determined by that municipality.
[13] In
November 2010, ISASA filed another application (the second
application) in the high court against eThekwini,
the Minister for
CoGTA and the Minister of Finance, wherein it sought an order
declaring that eThekwini’s rates policy for
the 2009/2010
years, where it contradicts the 2010 amended regulations, was
unconstitutional. It also sought an order directing
eThekwini to
comply with the 2010 amended regulations.
[14] In
June 2011, ISASA filed an amended notice of motion to the second
application, supported by an affidavit, seeking
to compel eThekwini
to levy rates from 1 July 2010 in accordance with the 2010 amended
regulations, and further declaring eThekwini’s
rates and
policies for the 2010/2011 and the 2011/2012 years and regulations
for 2008/2009 – 2011/2012 rates policies to
be unconstitutional
and invalid. ISASA further sought to challenge eThekwini’s
rates policies until the final determination
of the matter. eThekwini
reacted by filing an application to strike out the additional
affidavits filed to support the amended
notice of motion of the
second application.
[15]
Stellenbosch filed a joinder application in the counter-application
to the main application of eThekwini of August 2010,
as second
applicant. The application was granted in November 2011. ISASA
responded to allegations in the founding affidavit
filed by
Stellenbosch. On 25 February 2011, it was agreed between the parties
that pending the outcome of the main application
and second
application, eThekwini would not levy rates to ISASA in excess of 25
per cent, that is, ISASA members would pay rates
as per the amended
regulations of 2010, until the disputes between the parties had been
resolved.
Interpretation of
the MPRA and the Regulations
[16]
Whether the 2010 amended regulations apply to eThekwini depends upon
the interpretation of s 8(1)
[4]
read with s 19(1)
(b)
of
the MPRA. In terms of s 151(3) of the Constitution, a municipality
has the right to govern, on its own initiative, the local
government
affairs of its community, subject to national and provincial
legislation, as provided for in the Constitution. The following
three
sections of the Constitution are pivotal to the interpretation of
ss 8 and 19(1) of MPRA:
i.
Section
156(2):
‘
A
Municipality may make and administer by-laws for the effective
administration of the matter which it has the right to administer.’
ii.
Section
156(5):
‘
A
municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective
performance
of its functions.’
iii.
Section
229(2):
‘
The
power of a municipality to impose rates on property, surcharges on
fees for services provided by or on behalf of the municipality,
or
other taxes, levies or duties
(a)
may
not be exercised in a way that materially and unreasonable prejudices
national economic policies, economic activities across
municipal
boundaries, or the national mobility of goods, services, capital or
labour; and
(b)
may
be regulated by national legislation.’
These
provisions of the Constitution make the following plain. A
municipality has a right to govern the local government affairs
of
its community. In doing so a municipality has the power to impose
rates on property. But this power may be regulated by legislation.
The MPRA is national legislation that regulates the power of
municipalities to impose rates. The 2010 amended regulations were
promulgated in terms of sections 19 and 83 of the MPRA. Do the
2010 amended regulations apply to eThekwini?
[17]
eThekwini submitted that the pre-2014 MPRA did not prescribe what
categories of property must be included in its rates
policies. Thus
it was not obliged to include the PBO property category of ratable
property in its rates policies because the word
‘may’, in
s 8(1) confers a discretion on the municipality whether it can do so.
eThekwini had decided not to do so,
and hence the 2010 amended
regulations were not of application.
[18]
This submission is predicated upon what is said to be the permissive
competence of a municipality to determine,
in terms of s 8, whether a
particular category of property is to be included in a municipality’s
rates policy. If a category
of property is excluded, then s 19, and
any regulations promulgated in terms of s 19, cannot require the
recognition of a category
of property that the municipality has
decided not to include in its policy.
[19] It is
common ground that even prior to amendment, s 8 was made ‘subject
to section 19’. Section 19 limits
the rates that a municipality
may levy on a category of non-residential property. Those limits are
determined by reference to a
prescribed ratio. The 2010 amended
regulations prescribed such a ratio for PBO property. eThekwini
contends that if it decides
not to recognize PBO property as a
separate category of ratable property, then s 19 can have no
application because the prescribed
ratio posited by s 19 cannot be
determined. This interpretation, it was submitted, is consistent with
the constitutional competence
of municipalities to govern their local
communities.
[20] Such an
interpretation fails to accord to s 19 the primacy that the
legislative scheme requires. Section 19, read with
the 2010 amended
regulation, has determined a prescribed ratio in respect of PBO
property. Once that is so, municipalities may
not impose a rate that
exceeds the prescribed ratio for PBO property. A municipality cannot
avoid this limitation by declining
to recognize PBO property in its
rates policy. Once a category of property exists within a
municipality, rates may not be imposed
upon such property in excess
of the prescribed ratio. Whatever the scope of the municipality’s
competence to determine categories
of property for the purposes of
its rates policy, that competence cannot be exercised so as to avoid
the obligatory limitations
that arise from the exercise of powers
under s 19. To hold otherwise would permit of the wholesale evasion
of the national regulation
that s 229(2)(b) of the Constitution
specifically provides for.
Constitutional
Challenge
[21]
eThekwini contend that s 19(1)
(b)
of MPRA is
unconstitutional to the extent that it limits a municipality’s
power to levy rates.
[22]
eThekwini relied upon
City
of Tshwane v Marius Blom
[5]
and submitted that a municipality has the independence to make its
own policy choices in relation to the categories of ratable
property
that attract different rates as provided for in its policies.
[23]
eThekwini further relied on
the
following passage from
City of Tshwane v Marius Blom,
where
Court said this:
‘
.
. . Section 8(2) lists a number of categories of rateable property
that may attract different rates. These categories are optional.
The
municipality may adopt all of them, drop some or include new
categories, depending on the nature of the objectives its rates
policy seeks to achieve. The municipality has a choice. Rates
policies entail, by definition, policy choices which lie at the core
of municipal autonomy, and as long as the rates policy treats
ratepayers equitably and is consistent with the provisions of the
Constitution and the Rates Act, there can be no basis for questioning
the choices it makes with regard to properties that may be
differentially rated with respect to different categories of
property. The court a quo therefore erred in finding that the
creation
of a “non-permitted use” category was
improper.’
[6]
[24] The
issue in
City of Tshwane v Marius Blom
involved the
interpretation of ss 8(1) and (2) of the MPRA, in particular whether
the MPRA conferred authority on the appellant
(City of Tshwane) to
add to the list of categories of rateable property and to levy a rate
accordingly.
[25] At
the heart of the constitutional challenge to s 19(1)(b) is the
contention that this provision offends against
the separation of
powers that the Constitution dictates, more specifically, in that the
Constitution accords autonomy to municipalities
to set their own
rates policies. Section 19(1)(b), it is contended, impermissibly
offends against that autonomy by giving the Minister
for CoGTA the
power to prescribe a ratio that municipalities may not exceed in
determining rates for categories of non-residential
property.
[26] The separation
of powers that confers this robust autonomy upon municipalities is
said to derive from various provisions of
the Constitution, and in
particular ss 40, 41, 151(3), 151(4), 153, 154(1) and 156. The
Constitution recognizes the important part
that local government
plays as a sphere of democratic government that serves local
communities. But the powers of local government
under the
Constitution are not untrammelled. Local government does not inhabit
a sphere of wholly autonomous authority. Rather,
local government
cohabits with other spheres of government, and the Constitution
articulates the basis of that cohabitation. As
s 151(3) of the
Constitution makes plain, a municipality has the right to govern,
subject to national and provincial legislation,
as provided for in
the Constitution. The Constitution gives express treatment to the
power of municipalities to impose rates. Sections
229(1) and (2)
permits a municipality to impose rates. But that power is made
subject to limitation. It may not be exercised materially
and
unreasonably to prejudice various economic activities and policies
stipulated in s 229(2)(a). And the power may be regulated
by national
legislation as laid down in s 229(2)(a).
[27] The
scheme of the Constitution has a nuanced framework within which the
separation of powers is articulated. The power
of the municipalities
to impose rates is a species of taxing power that may have
significant economic effects for other spheres
of government and for
the development of the economy as a whole. Hence the municipal power
to impose rates is made subject to regulation
by national
legislation. The challenge brought by eThekwini and Stellenbosch did
not test the limits of the regulatory oversight
given to Parliament.
Rather, the challenge was made on the more radical premise that s
19(1) offends the autonomy of municipalities
to impose rates. That
challenge cannot succeed because s 19(1) is a regulation by national
legislation that s 229(2)(b) of the
Constitution expressly permits.
The recognition in
Blom
of the power of municipalities to
determine their rates policies does not derogate from the regulatory
supervision accorded to the
national legislature in terms of s
229(2)(b).
[28] The
constitutional challenge must accordingly fail.
The validity
challenge
[29]
I now turn to deal with the issue of the consultation challenge. The
municipalities challenged the validity of
the 2010 amended
regulations on the basis that there was no consultative process in
terms of s 84
(a)
and
(b)
[7]
of MPRA. On the facts of this case, the municipalities were consulted
in 2007 on the substance of the proposed amendment to the
regulations, which included PBO property. There was no formal
objection.
[30] In
this matter, the inclusion of PBO property in the 2010 amended
regulations is not a new issue that the appellants
did not know
about. After the Minister for CoGTA published the draft regulations
in 2007, there was proper consultation around
2007, and there were no
objections to the published draft regulations. eThekwini was aware of
the amendments that the Minister
for CoGTA intended to introduce and
did not object.
[31]
Stellenbosch submitted that it is challenging the validity of the
2010 amended regulations on the basis that there
was no consultation
with organised local government in terms of s 84 of MPRA. It
submitted that the Gauteng High Court did not
find or state that s 84
of MPRA was not applicable. The Minister for CoGTA had to comply with
the provisions of s 84 and he had
first to consult organised local
government and publish the draft regulations in the Government
Gazette for comment. This argument
does not take into consideration
that consultation and publication of draft regulations had already
taken place. Stellenbosch’s
representative, SALGA, was
specifically informed that the regulations will not be published for
public comment. SALGA did not object
or oppose ISASA’s
application, nor did it insist that s 84 was to be complied with.
[32] The
promulgated regulations in 2007 omitted PBO property. ISASA
challenged the regulations. The failure to include
PBO property in
the published regulations caused ISASA to challenge this omission in
the Gauteng High Court within a reasonable
period after the
publication of the regulations. SALGA was cited as a respondent and
did not oppose the application. Initially,
both ministers opposed the
application, but later withdrew their opposition, after receiving an
opinion from senior counsel. eThekwini
was informed about the
application in the Gauteng High Court; it did not file a
joinder application, nor raise an objection
that the consultative
process did not take place in terms of s 84 of the MPRA before the
amended regulations of 2010 were promulgated.
[33] It
is clear that the Minister for CoGTA did consult organised local
government on the substance of the regulations
and published the
draft regulations in the Government Gazette for public comment before
the promulgation of the 2007 regulations,
which were to become
effective from 1 July 2009. In my view, there was no need for the
Minister for CoGTA to consult eThekwini
on the substance of the
regulations again because the substance of the published regulations
had not changed. Importantly, the
Minister for CoGTA, on 21 December
2009, addressed a letter to SALGA, the respondent in the proceedings,
explaining why he
had decided to seek the concurrence of the Minister
of Finance to promulgate the revised regulations that were inclusive
of a ratio
for public benefit organisation property. The Minister for
CoGTA further informed SALGA that the matter would be settled out of
court. SALGA did not participate in the main application.
[34] The
amended regulations were published before the end of March 2010 and
were to be effective from 1 July 2010.
eThekwini and Stellenbosch did
not file a review to challenge the court order. They are bound by the
court order of the Gauteng
High Court. They only challenged the
validity of the 2010 amended regulations in the counter-application
after ISASA filed the
main application in June 2010.
[35] The
validity challenge must therefore fail.
ISASA’s
cross appeal
[36] The
high court granted ISASA leave to cross-appeal in terms of paras 1, 2
and 3 of the notice of application for
leave to appeal. The high
court in its order did not grant prayer 2.1 of the ISASA’s
amended notice of motion, in terms whereof
ISASA sought an order
declaring the eThekwini rates policies from 2010/11 to date, any by
laws, municipal notices or resolutions
passed to give effect to levy
its own rate unconstitutional and invalid insofar as they precluded
the levying of a rate on PBO
property in compliance with the 2010
amended regulations.
[37] I
have at length dealt with the constitutional and validity challenge
in relation to the main appeal. The high
court did likewise in its
judgment. ISASA’s counsel submitted that the high court’s
omission to make an order in terms
of prayer 2.1 of ISASA’s
amended notice of motion was an oversight and he urged this Court to
grant the declaratory relief
that was sought.
[38]
Having considered the facts of this matter, I am of the view that it
will not be ideal in this appeal to deal with
the cross appeal and
pronounce on the amendment of the notice of motion and the
constitutional validity of eThekwini’s municipal
rates policies
passed from 2010/2011 to date. Clearly, the prayer sought in
paragraph 2.1 of ISASA’s amended notice
of motion is not relief
that is required in the light of the relief already given by the high
court and affirmed in this appeal.
[39] I
have therefore decided that the order sought by ISASA in the cross
appeal should not be granted. It should
further be noted that
before the high court, the parties agreed that pending the outcome of
the main application, eThekwini would
not levy rates against ISASA in
excess of 25 per cent of the rate charged on residential property. As
I have found that the main
appeal falls to be dismissed, the main
relief sought by ISASA now becomes final which means that the
appellants’ cannot now
seek to impose rates under the historic
rates policies that are at variance with the high court order that
requires municipalities
to apply the new amended regulations.
Costs
[40] The
appeal by eThekwini and Stellenbosch must fail based on the reasons
set out above. The respondents have substantially
succeeded in
challenging the appeal and they are therefore entitled to the costs.
The cross appeal even though unsuccessful, was
brought with good
reason and
bona fide
. I therefore think that it will not be
proper to mulct ISASA with costs in respect thereto.
[41] I
therefore make the following order:
a.
The
appeal is dismissed.
b.
The
appellants are liable jointly and severally, the one paying the other
to be absolved, for the costs of the first, second and
third
respondents, including the costs of two counsel.
c.
The
first respondent’s cross appeal is dismissed with no order as
to costs.
A P LEDWABA
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
the
first appellant:
N Singh SC (with A Boulle)
Instructed
by:
Linda Mazibuko & Associates, Durban
Matsepes
Inc, Bloemfontein
For
the second appellant:
G Papier (with D Potgieter)
Instructed
by:
Webber Wentzel, Cape Town
Matsepes
Inc, Bloemfontein
For
the first respondent:
A Dodson SC (with M Mbikiwa)
Instructed
by:
Shepstone & Wylie Attorneys, Durban
Phatshoane
Henney Attorneys, Bloemfontein
For
the second and third respondents:
W Mokhari SC (with C Lithole)
Instructed
by:
The State Attorney, KwaZulu-Natal
The
State Attorney, Bloemfontein.
[1]
Section 19 provides as follows:
‘
(1)
A municipality may not levy
(a)
Different rates on
residential properties, except as provided for in sections11(1)
(b)
,
21 and 89;
(b)
a rate on
non-residential properties that exceeds a prescribed ratio to the
rate on residential properties determined in terms
of section
11(1)
(a);
(c)
rates which
unreasonably discriminate between categories of non-residential
properties; or
(d)
additional rates
except as provided for in section 22.
(2)
The ratio referred to in subsection (1)
(b)
may only be
prescribed with the concurrence of the Minister of Finance.’
[2]
Section 83 (1) empowers the
Minister to make regulations not inconsistent with the MPRA.
[3]
The high court made the
following order:
(1)
“
It is
declared that the first respondent may not henceforth (and was not,
with effect from the 1
st
July 2010 permitted to) levy a rate in excess of 25 per cent of the
rate levied by it on residential property, on:
(a)
Non-residential
properties owned by public benefit organisations as contemplated in
terms of s 30 of the Income Tax Act, 1962
(‘the Act’)
and used for the specified public benefit activity of education and
development as contemplated in item
4 of the ninth schedule to the
Act.
(b)
Property owned by the
rate payers whose names are listed in the schedule annexed hereto
marked ‘X’ and used for the
specified public benefit
activity of education and development as contemplated in item 4 of
the ninth schedule to the Act, provided
that they retain their
status as public benefit organisations in terms of s 30 of the Act.
(2)
The first respondent is
directed to levy a rate on the property of public benefit
organisations, with effect from the 1
st
July 2010 and in compliance with the
Local Government: Municipal
Property Rates Act, 2004
, and with Regulations 1 and 2 of the
Amended Municipal Property Rates Regulations on the rate ratios
between Residential and
Non-Residential Properties, GN R.195, GG
33016, 12 March 2010.
(3)
The first respondent and
the intervening party, the one paying, the other to be absolved, are
directed to pay the applicant’s
costs, such costs to include
those consequent upon the employment of two counsel.
(4)
The
first, second and third respondents, and the intervening party]
shall each bear their own costs.
[4]
Section 8 (1) stipulates 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.’
[5]
City of Tshwane v Marius Blom
and GC Germishuizen Inc and Another
[2013]
ZASCA 88
;
[2013] 3 All SA 481
(SCA);
2014 (1) SA 341
(SCA).
[6]
Fn 5 above para 18.
[7]
S 84 provides as follows:
‘
Before
regulations in terms of section 83 are promulgated, the Minister
must –
(a)
consult organised
local government on the substance of those regulations; and
(b)
publish the draft
regulations in the
Government
Gazette
for public
comment.’