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[2016] ZAGPPHC 1145
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Stuart NO v City of Tshwane Metropolitan Municipality (55891/2015) [2016] ZAGPPHC 1145 (27 October 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPUBLIC
OF SOUTH AFRICA
27/10/2016
CASE
NO: 55891/2015
REVISED
In
the matter between:
ELMO
YORK STUART
N.O.
Applicant
and
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
Respondent
JUDGMENT
MOTHLE
J
Introduction:
1.
The Applicant is an attorney of this Court, practising as such under
the name and style of E Y Stuart Incorporated in Waterkloof
Gardens,
Main Street, Brooklyn, Pretoria. He lodged this application in his
capacity as executor in the Estate of the Late Daniel
Rudolph Jansen
Van Vuuren, having been duly appointed as such in terms of the letter
of executorship attached to the papers.
2.
The Respondent is the City of Tshwane Metropolitan Municipality in
whose jurisdiction the property in issue in this application
is
situated.
3.
In terms of
Section 118(1)
of the
Local Government: Municipal Systems
Act, 32 of 2000
, the Registrar of Deeds may not register the transfer
of property except on the production of a Clearance Certificate. The
section
describes a Clearance Certificate as a document which
certifies that all amounts that became due in connection with the
property
for municipal service fees, surcharges, property rates and
other municipal taxes, levy and duties during the 2-year period
preceding
the date of the application for certificate, have been duly
paid.
4.
The Applicant seeks relief in terms of which the Respondent is
directed by this Court to extend the Clearance Certificate issued
by
the Respondent by virtue of the court orders of 3 September 2010 and
18 October 2011, in respect of Portion 290 (a Portion of
Portion 98)
of the farm Kameeldrift 298, Registration Division JR, Northern
Province
("the property").
5.
The order is sought to facilitate the subdivision of the property as
well as its transfer in the Deeds Office. Further, and in
the
alternative, the Applicant seeks an order directing the Respondent to
issue a Clearance Certificate that should be valid for
a period of 3
months from the date of the order, and that such order shall have no
bearing on the litigation pending between the
two parties under case
number 52367/2007. There is also a further prayer for costs against
the Respondents.
Background:
6.
The property in issue in this application belongs to the estate of
the deceased. The deceased in his lifetime applied for subdivision
of
the property into three portions, which subdivision was approved for
subdivision only in two portions. The approved subdivision
is not yet
registered on the Title Deed.
7.
The deceased's intent was to subdivide the property in three portions
and to transfer the property to his family trust, being
the Jansen
Van Vuuren Family Trust which is duly registered in terms of the law.
8.
This property fell under the jurisdiction of the Nokeng Tsa Taemane
Local Municipality
("Nokeng Municipality”).
9.
During or approximately May 2011, the Nokeng Municipality was
dis-established and absorbed into the Tshwane Metropolitan
Municipality
(the Respondent) and consequently the property now falls
under the jurisdiction of the Respondent. Prior to this
dis-establishment
of the Nokeng Municipality, a dispute had ensued
between the owner of the property
("the
deceased”)
and the Nokeng Municipality, concerning the alleged non-payment of
rates, taxes and other levies against the property,
which dispute led
to the Nokeng Municipality to issue summons against the deceased in
this Court under case number 52367/2007.
10.
Consequently, pending the adjudication of the dispute, the Nokeng
Municipality failed to issue a Clearance Certificate to the
deceased,
which failure caused the deceased to launch an application in this
Court under case number 70745/2009. This was the first
application by
the Applicant.
11.
The Nokeng Municipality delivered its intention to oppose the
application but failed to file any opposing papers. This application
was enrolled for and heard on the 30 August 2010, where a settlement
was reached between the parties, resulting in an order by
the Court
on 3 September 2010. This court order included the agreement made in
2009 through the Respondent's attorneys that the
Applicant should pay
a "without Prejudice" amount of R 200 000, 00 to the then
municipality. Further, in terms of this
Court order, the Nokeng
Municipality consented to issue a Clearance Certificate, indicating
that no outstanding levies are due
and payable. This Clearance
Certificate was valid up until the 31 October 2010.
12.
The Applicant failed to effect registration of the transfer property
prior to the -deadline of the 31 October 2010. The delay,
according
to Applicant, was caused by ABSA Bank being the first mortgage bond
holder, by failing to timeously deliver consent to
the cancellation
of the bond registered on the property. A request to the Nokeng
Municipality to issue a further Clearance Certificate
was not
granted. This led to a second application being launched in this
Court under case number 12864/2011.
13.
Following this second application, another settlement agreement was
reached whereby the application was removed from the roll
and the
Nokeng Municipality agreed in writing through its attorneys, to issue
the second Clearance Certificate. However, the Respondent
advised
that the power of attorney to effect transfer of the subdivided
portion to and in favour of the Trust, could not be issued
as the
engineer's report was never circulated to all the departments within
the offices of the Respondent and further that bulk
service
contributions have not been paid.
14.
The refusal to issue this power of attorney again delayed the
execution of the transfer until the date of validity the Clearance
Certificate expired. Subsequent thereto, the engineer's report was
circulated internally to all the departments of the Respondent.
The
documentation required to effect transfer was now with the Applicant
who needed to proceed with the transfer. The Respondent
persisted
with its refusal to either extend the life of the second Clearance
Certificate or issue a new Clearance Certificate to
the Applicant.
15.
On the 18 July 2014, a third application was made to court for an
order directing the Respondent to issue a new Clearance Certificate.
In August 2014 the Respondent alleged that the Applicant owed amounts
of R147, 151.45 and R360, 017.29 with regard to the property.
The
Applicant disputed these amounts on the basis that the previous
Clearance Certificates were issued consequent to agreements
with the
Nokeng Municipality that there is no amount due, which agreements
were made order of court.
16.
It further transpired that the Respondent on its own volition,
subdivided the account of the property in line with the subdivision
in to two portions, and levied different tariffs in respect of the
subdivided portions. Two separate accounts were issued. The
one is
account No. [...]53 in respect of the portion described as F001 and
the other is account No. [...]96 in respect of the portion
described
as F0002. A further account No: [...]63 was opened in regard to water
consumption.
17.
The account of the property was divided into two separate accounts in
line with the municipality approved subdivision, which
however had
not yet been registered by the Deeds Office. The Clearance
Certificate sought was to amongst others, facilitate the
registration
of the subdivision as approved, as well as simultaneous transfer of
the property to the family trust.
18.
Several enquiries by the Applicant, from 2 March 2015, requesting
clarity from the Respondent concerning the two accounts and
the
extension or re-issue of the Clearance Certificate went unanswered.
The Applicant has attached to the court papers a number
of emails to
the various officials of the Respondent requesting information in
regard to the reasons for the separation of the
property account as
well as the refusal to issue a Clearance Certificate. There was no
response to these enquiries.
19.
The Applicant produced proof that he had paid the Respondent an
amount of R200, 000.00 to the account in compliance with the
2010
Court order, which amount appears not to have been credited to any of
the two accounts. For the record, neither the Nokeng
Municipality nor
the Respondent has taken any further action to proceed with the
dispute under case number 52367/2007, instituted
by the Nokeng
Municipality.
20.
The second Clearance Certificate issued has now also expired and the
Applicant is unable to execute his duties as executor to
effect
transfer of the property and register the subdivisions. The led the
Applicant to institute this third application which
is the subject of
the current proceedings.
The
issue before Court
21.
The Respondent claims that as at October 2015, prior to the
institution of these proceedings the Applicant's accounts with the
municipality were as follows:
21.1 Account No. [...]53
had an amount of R211, 355.31 due and owing;
21.2 Account No. [...]96
had an amount of R16, 008.56 due and owing; and
21.3 Account No. [...]63
had an amount of R333, 055.50 due and owing.
22.
The total amount owing, according to the Respondent, is R560, 419.37.
23.
The Respondent further maintains that in terms of
Section 2(1)
of the
Local Government: Municipal Property Rates Act, 6 of 2004
, the
municipality is entitled to levy the property rates on any property
including the property in issue in this case. In addition
thereto,
the Respondent further contends that it is entitled to levy for
various other municipal services such as water and electricity.
These
levies, according to the Respondent, amounted to R550 419, 37 as at
October 2015.
24.
In the replying affidavit, the Applicant in fact denies being
indebted to the Respondent for the amounts stated. He further
contends that the municipality erred in creating separate accounts on
the approved subdivisions prior to the subdivisions themselves
being
registered in the Deeds Registry. The Applicant tenders payment of
any amount that may be
"proved to be due and payable upon
appropriate adjudication of the pending action."
The first date of
hearing: 10 August 2016
25.
This application was set down for Tuesday 8 August 2016 in the
opposed motion court and heard on the 10 August 2016. During
argument, the Court pointed out that from the reading of the
documents in the file and the submissions made in the heads of
argument,
it seems the issue is narrowed to two questions, namely:
25.1
Whether the municipality was correct in creating two separate
accounts in line with the municipality approved subdivision,
prior to
the registration of the approved subdivision by the Deeds Registry;
and
25.2
Whether the amounts due and owing as contended by the Respondent are
substantiated and correct.
25.3
The Court then adjourned the matter on the basis that each party will
be permitted to file supplementary affidavits to support
their
contention and in particular that:
(i) The matter be
postponed to Wednesday of the last week of term being 21 September
2016; and
(ii) Each party be given
7 days to file affidavits, the Applicant must file an affidavit
attached to it the proof that it had made
payment and had continue to
make payment and the amount paid to date since the expiry of the
certificate;
(iii)That the Respondent
file an affidavit attaching thereto the relevant accounts showing how
the amount they claim is due and
owing have been arrived at starting
from the day after the expiry of the last certificate.
27.
The Applicant filed a supplementary affidavit on 1 September 2016,
wherein he attached proof of payments, including payment
of the R200
000, 00 ordered by the Court previously. On the attached evidence of
the Applicant and in the absence of contrary evidence
from the
Respondent, the Applicant contends that the amount they have paid far
exceeds the balance cited by the Respondent as due
and owing.
28.
On the morning of the return date of hearing, which was Friday 23
September 2016, a date confirmed by the Court at the request
of the
parties, the Respondent submitted its supplementary affidavit. In its
supplementary affidavit, the Respondent claims that:
(1) the disputed amounts
raises a genuine dispute which cannot be resolved in a motion court;
(2) the disputed amounts
are a subject of litigation instituted in 2007, which is pending and
which the Applicant failed to set
down;
(3),the basis of the
calculation of the Applicant is not correct; and
(4)Then followed this
startling new allegation in paragraph 16 of the Respondent's
supplementary affidavit:
" 16. I am
advised that the affidavit Is way out of time and wish to state that
the affidavit would not have been filed on
time because of the
following issues:
16.1 The amounts
which were to be taken into consideration were the amounts that 1he
applicant owed from the era of the Dinokeng-Tsa
Taemane
Municipality.
16.2 Since the
disestablishment of that municipality there ls always a problem in
accessing the accounts due to the licence of the
software which is
owned by third parties;
16.3 During this
period of resolving this current dispute steps were taken by the
respondent to pay for the software licence
16.4 Such licence
was paid during August 2016 and access was allowed for the officials
to access the records of the previous municipality
and do
reconciliation.
16.5 Unfortunately
one of the key officials was incapacitated and was in hospital.
16.6 As soon as the
said official was available to enable access to the previous records
of Dinokeng-Tsa-Taemane Municipality reconciliation
was made."
29.
During argument, the Court established from the Respondent's legal
representative that the alleged fee owing to the licence
holder of
the software has been due and owing since 2011 when the Nokeng
Municipality was dis-established. It is still not clear
at this stage
when access to information will be gained. In essence, since 2011,
the Respondent has not been able to access the
data relating to the
accounts from the dis-established municipality, due to its own
failure to effect payment to the licence holder
of the software.
Evaluation of evidence
30.
The Respondent's contention that there is a dispute of fact which
calls for the matter to be referred to trial has no merit.
The
dispute between the parties concerns the need for payment of levies
as a condition to the issue of the Clearance Certificate.
It can be
easily ascertained with reference to source documents such as rates
and taxes invoices issued by the municipality and
statements of
accounts reflecting payments made, if any. It is therefore incorrect
for the Respondent to contend that the dispute
in that regard is
incapable of being resolved on the papers.
31.
On the evidence before Court, the Applicant does not dispute, nor has
he ever disputed the legal authority of the Respondent
as a
municipality to levy rates and taxes and to subject the application
for issue of a Clearance Certificate to the legal requirements.
It is
the amount alleged by the Respondent as due and owing which is in
dispute. It makes no sense for the Respondent as part of
its defence
to invoke the authority of
section 118.
32.
In regard to proof of the alleged amount due and owing by the
Applicant, the Respondent contends to this Court that for a period
of
5 years, it has been unable to access information from the data of
the Nokeng Municipality that will prove or disprove its claim
that
there are amounts due and owing. On the other hand, the Applicant
through demonstration of documentary evidence shows that
it has paid
all levies due to the Respondent.
33.
In both instances of the expired Clearance Certificates, 2010 and
2011, the Nokeng Municipality unequivocally declared that
there are
no levies due and owing in the last two years as required by section
118(1) of the Municipal Systems Act. The Applicant
further contends
that it is for this reason, that the Court was able to grant the two
previous Court orders ordering the Respondent
to issue the Clearance
Certificates.
34.
The Respondent fails to explain how it would expect the ratepayers
whose properties are within the jurisdiction of the dis
established Nokeng Municipality, to wait indefinitely for access to
data in the software, before Clearance Certificates are issued.
The
Respondent's new version as contained in paragraph 16 of its
supplementary affidavit, submitted on the day of hearing without
a
single document to substantiate it, appears at best to be a desperate
attempt to avoid issuing a Clearance Certificate to the
Applicant.
35.
The Applicant on the other hand remains prejudiced without any
alternative remedy available to him. It is also a requirement
of the
law that the administration of the estate should be expeditiously
attended to and finalised.
The
creation of separate accounts
36.
On the return day of hearing, the question whether the Respondent was
authorised to create separate accounts before the approved
subdivision was registered, took a different turn. The Respondent
again presented new evidence by attaching to its supplementary
affidavit, an evaluation report by valuer XP Shitlhangu, dated 8
September 2016. This report alleges that the property, which is
mainly for agricultural and residential use, has a portion that is
being used as a warehouse for commercial purposes.
37.
According to this new version, The Respondent is thus authorised to
levy different property rates on the same property in accordance
with
the alleged land use, as per the provisions of
the Property Rates
Act 6 of 2004 and the municipal By-Laws.
However, there is no
evidence placed before this Court to demonstrate that either of the
portions of the property was approved for
subdivision in line with
the alleged land use in the form of a warehouse for commercial
purposes.
38.
For the record, the valuation in this new report allegedly took place
on 7 September 2016, without the consultation and knowledge
of the
Applicant and during the period of adjournment for parties to file
supplementary affidavits.
39.
Apart from the fact that this report was submitted in Court on the
day of the hearing of this application and thus not served
on the
Applicant, its purpose was, according to the Respondent, to explain
or provide the reason for the separation of the property's
account
into three accounts.
40.
It seems that the new allegations raised in the Respondent's
supplementary affidavit are an attempt to mislead this Court. In
the
first instance the Respondent attempts to explain the separation of
the single account of the property into three accounts
which occurred
from January 2014, on the basis of an evaluation conducted on 7
September 2016, more than two years later. Secondly,
there is no
explanation as to why the new version regarding difficulties
experienced by the Respondent to access the software,
was not averred
and deposed to in the initial answering affidavit, or through
counsel, raise it with the Court during the first
date of hearing (on
10 August 2016). The Respondent, through the conduct of its
officials, is being disingenuous to this Court.
41.
This question of separated accounts was recently dealt with by the
Supreme Court of Appeal in
City
of Tshwane v Uniquon Wonings (20771/2014)
[2015] ZASCA 162
(20
November 2015)
[1]
.
However,
the central issue in this case revolves around the question whether
the Applicant is indebted to the Respondent for the
alleged unpaid
municipal levies. The Applicant, in the course of contesting the
specific amounts stated by the Respondent as due
and owing, objected
to the levies as reflected in separate accounts instead of a single
account. The logical question in this regard
would be whether these
amounts taken together, would have resulted in the same as the levies
due and payable on the initial single
account of the property prior
to separation of accounts, or would appear inflated, to the prejudice
of the Applicant.
42.
Therefore in light of the evidence tendered or lack thereof
concerning the disputed levies, and the finding of this Court as
stated hereunder, nothing further turns on the question of the
separation of accounts of the property. It will thus not be necessary
to deal with the question of the creation of separate accounts over a
property that is still one entity insofar as the Deeds Registry
is
concerned.
43.
The provisions of section 118 of the Municipal Systems Act are that
an applicant for a Clearance Certificate has to effect payment
of any
levies due to the municipality for the period of two years preceding
that application.
44.
The application for the issue of or extension of the Clearance
Certificate for the third time was made at least from 2 March
2015.
Two years preceding this date would be March 2013. The Respondent has
not been able to prove that the levies due and owing
as it contends,
covers the period March 2013 to April 2015 or at the very least, and
for the purposes of the relief sought and
if granted, two years
before the date of hearing on 10 August 2016, which would be August
2014. Its contention rests on levies
which it claims were due and
payable to the Nokeng Municipality as at 2007. The Respondent is
however unable to prove these levies
due, because it have not yet
gained access to the data in the software whose licence belongs to a
third party.
45.
However, the 2010 Clearance Certificate which was issued on the 3
September 2010, was issued by the Nokeng Municipality. There
is no
explanation provided as to why the Nokeng Municipality would issue a
Clearance Certificate in 2010 and again in 2011, when,
as alleged,
there were levies due and payable by the Applicant at that time.
46.
In addition, it was part of the Court order of 3 September 2010 that
the Applicant is liable for payment of R 200 000, 00 to
the
Respondent, -which the Applicant has effected. The onus to prove any
levies owing and due to the Respondent, rests with the
Respondent,
and such onus has not been discharged.
Conclusion
47.
The Court is thus of the view that prior to its dis-establishment,
and contrary to the Respondent's contention, the Nokeng Municipality
had twice issued a Clearance Certificate to the Applicant, which
certified that there were no levies due and owing. The last such
Clearance Certificate is dated May 2011 which is the year when the
Nokeng Municipality was disestablished. In addition, the Applicant
has attached to its supplementary affidavit documentation in support
of the contention that whatever was due has been paid.
48.
Having regard to the documentation before me, I am of the view that
the Respondent should be ordered to issue a new Clearance
Certificate
in terms of Section 118 of the Municipal Systems Act, 32 of 2000.
This will be in respect of the property Portion 290
(Portion of
Portion 98) of the farm Kameeldrift 298 JR.
49.
In the premises I make the following order:
1. The Respondent is
ordered, within 7 days from date of this order, to issue and deliver
to the Applicant's attorneys, a Clearance
Certificate in terms of
Section 118 of the Municipal Systems Act, 32 of 2000 in respect of
Portion 290 (Portion of Portion 98)
of the farm Kameeldrift 298 JR,
which Clearance Certificate shall be valid for a period of sixty (60)
days from the date of delivery
to the Applicant; and
2. The Respondent is
ordered to pay the costs of this application.
________________________
S
P MOTHLE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION
PRETORIA
For
the Applicant:
Adv.
A Granova
Instructed
by:
E
Y Stuart Incorporated Attorneys
Applicant's attorneys
Waterkloof Gardens
Office Park
Brooklyn, PRETORIA
For
the Respondent: Adv.
M M Mojapelo
Instructed
by:
D
K Siwela Attorneys
Attorneys for the
Respondent
Prudential Building
Church Street
PRETORIA
[1]
See also
Mooikloof
Estates (Edm) Bpk v Stadsraad van Tshwane
2013
JDR 1333 (GNP).