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[2014] ZAGPPHC 99
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Sable Hills Home Owners Association v City of Tshwane Metropolitan Municipality and Another (1950/2013) [2014] ZAGPPHC 99 (14 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE
NUMBER
:
1950/2013
DATE
:
14 March 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
SABLE
HILLS HOME OWNERS ASSOCIATION
…...................................................
Applicant
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
................................
First
Respondent
THE
MEMBER OF TSHWANE EXECUTIVE COUNCIL
FOR
LOCAL GOVERNMENT OF THE GAUTENG
PROVINCE
..........................................................................................................
Second
Respondent
JUDGMENT
CILLIERS
AJ
[1] The Applicant is
an association of all of the registered owners of immovable property
in Sable Hills Waterfront Estate, an established
township that was
approved during 2005 in terms of the Town Planning and Townships
Ordinance, 15 of 1986.
[2] The main relief
that was sought by the Applicant in the notice of motion was a
declaratory order to the effect that the determination
of vacant land
as a category of rateable property by the First Respondent is in
conflict with and
ultra vires
The
Local Government: Municipal
Property Rates Act, 6 of 2004
, in particular
Section 8(2)
read with
Section 19(1)
thereof and null and void.
[3] The legal basis
on which the declaratory relief was sought can be summarised as
follows:
(i)
Section 8(2)
of the
Local Government: Municipal Property Rates Act, 6
0f
2004 (“
the
Rates Act
”)
provides for an exhaustive list of categories of rateable property
that may be determined by the First Respondent in terms
of Section
8(1) of the Rates Act;
(ii)
Section 8(2) of the Rates Act does not provide for a category of
rateable properties such as vacant land;
(iii)
The First Respondent adopted a property rates policy with effect from
1 July 2011. In this property rates policy, provision
is made for
“
vacant
land
”
as a determined category of rateable property for purposes of levying
rates;
(iv)
In consequence of the contention that the categories of property set
out in Section 8(2) of the Rates Act is exhaustive, the
First
Respondent acted
ultra
vires
the Rates Act when it determined a category or rateable property to
include “
vacant
land
”.
[4]
Since the present application was launched the Supreme Court of
Appeal held that the list of categories of rateable property
in
Section 8(2) of the Rates Act is not intended to be exhaustive and
that it is competent for a municipality to add a category
“
non-permitted
use
”
to the list.
[1]
[5] At the hearing
of the application
Mr du Preez SC
for the Applicant, in my
view correctly so, informed that the Applicant would not persist to
seek a declaratory order in terms
of the main relief formulated in
the notice of motion.
[6] The Applicant
nevertheless requested the Court to allow a supplementary replying
affidavit and an “amended” notice
of motion. I was
informed from the bar that the supplementary replying affidavit and
the “amended” notice of motion
were already delivered in
December 2013 and that it sought to introduce a new cause of action.
[7]
Mr
Strydom SC
,
on behalf of the First Respondent, objected to the introduction of a
new cause of action in a supplementary replying affidavit
as well as
to the reliance on a document intended to be an amended notice of
motion. In this regard reliance was placed on the
principle that the
Court will not allow the introduction of a new matter in a replying
affidavit if the new matter sought to be
introduced amounts to an
abandonment of the existing claim and the substitution therefore of a
fresh and completely different claim
based on a different cause of
action
[2]
and
that the Court will not permit an applicant to make a case in reply
when no case at all was made out in the original application.
[3]
[8] During the
hearing I ruled that, in the absence of any application seeking the
permission from the Court to allow the delivery
of the supplementary
replying affidavit containing a new cause of action as well as for
allowing an amendment to the existing notice
of motion that it was
not possible to determine whether the filing a supplementary replying
affidavit and an amended notice of
motion could be allowed and I
refused to allow the supplementary replying affidavit.
[9] Consequent upon
the above ruling Mr du Preez SC on behalf of the Applicant informed
that the Applicant persists with the alternative
relief sought in the
notice of motion. The alternative relief sought in the notice of
motion is formulated as follows:
“……
alternatively,
in the event of the Honourable Court finding that the First
Respondent is entitled to determine vacant land as a
category of
rateable property a declaration that the First Respondent is not
entitled to levy the rate determined in respect of
vacant land on
property zoned and categorised as residential.”
[10]
In support of the alternative relief sought reliance was placed on
the recent judgment in the Supreme Court of Appeal in
SA
Property Owners v Johannesburg Municipality
[4]
,
and in particular the following findings therein:
[5]
“
[55]
The Rules of statutory interpretation require that the words to be
construed must be given their ordinary grammatical meaning
in the
light of their context where “context
”
includes the
language of the rest of the statue, (which may throw light of a
dictionary kind on the words to be interpreted), the
matter of the
statute, its apparent scope and purpose, and, within limits, its
background. The Court must, from the outset consider
the language to
be interpreted, together with the context. Even where the words to be
interpreted are (or appear to be) clear and
unambiguous, regard must
be had to the context.
[56]
Section 19(1)(b) prohibits a municipality from levying
“
(a)
Rate on a category of non-residential properties that exceeds a
prescribed ratio to the rate on residential properties determined
in
terms of Section 11(1)(a)
”
.
S11(1)(a)
simply provides that a rate must be an amount in the rand and the
municipality must apply this rate to the market value
of the
property…… s19(1)(b) uses the word “ratio
”
,
which ordinarily indicates a relationship between two similar
magnitudes in respect of quantity, determined by the number of times
one contains the other. In Section 19(1)(b) the magnitudes are the
amounts in the rand determined by the Council. Although inelegantly
worded, s (19)(1)(b) indicates that the ratio of the rate on
non-residential properties (which obviously includes business,
commercial
and industrial properties) to the rate on residential
properties may not exceed a prescribed ratio. The object of the
section is
clearly not to limit the rates on either non-residential
or residential properties per se. It is to prohibit the relationship
between
the two rates from exceeding the prescribed relationship. The
problem which arises from the wording of the relevant part of
s(19)(1)(b)
is resolved if it is interpreted to read “a rate on
a category of non-residential properties so that the prescribed ratio
to the rate on residential properties determined in terms of s(11)(1)
is exceeded.”
[57]
The regulations promulgated in terms of s(19)(2) are also inelegantly
worded. Their object is obviously to give effect to s(19)(1)(b)
by
prescribing ratios of rates on residential property to
non-residential properties, which may not be exceeded. They refer to
the first figure (the rate) in the second column as the figure for
residential properties and the second figure (the rate) in the
second
column as the figure for non-residential properties referred to in
the first column. Confusion arises from the words “residential
property
”
in
the first column. This obviously should have been “non-residential
properties
”
,
as that is how the properties in that column are described. The
maximum ratio of the rate on residential property to the rate
on
non-residential property would therefore be 1:1 – the rates
(the amounts in the rand) on the two categories of property
may be
the same, but the rate on non-residential property must not exceed
the rate on residential property. This is consistent
with the
interpretation of s(19)(1)(b) above…….
[58] If this were
the proper interpretation, then the Council would have been
prohibited from levying a rate on business properties
that was 3.5
times as much as the rate on residential property, as this would
result in a ratio of 3.5:1. The most the Council
could have levied
was the same amount in the rand as it levied on residential property.
The rates levied on business properties
in the 2009/2010 budget year
would therefore have been unlawful because they were contrary to
s(19)(1)(b).”
[11] In the argument
Mr Strydom SC
, on behalf of the First Respondent contended
that no case was made out in the founding affidavit to the effect
that the First Respondent
did not apply the ratios of the rate on
non-residential properties to the rate on residential properties
otherwise than in accordance
with the prescribed ratio.
[12]
Mr du Preez
SC
submitted that a proper case was made out in the founding
affidavit in this regard in that it was stated that, in terms of the
First Respondent’s rates policy the property rates in respect
of residential properties was 1.209 cents in the rand, subject
to
certain rebates, whilst the property rates tariff in respect of
vacant land was 5.370 cents in the rand of the value of the
property
and no rebates were granted in respect of vacant land for the period
1 July 2011 to 30 June 2012. In addition it was stated
in the
founding affidavit that, since 1 July 2012 the property rates charged
by the First Respondent in respect of vacant land
increased to 6.014
and the rate in respect of residential properties increased to 1.354.
In addition various correspondences were
annexed to the founding
affidavit in which complaints were made about excessively high
property rates charged on vacant land and,
in these sets of
correspondences it was pointed out that Section 19(1)(a) of the Rates
Act prohibits different rates on residential
properties and that the
First Respondent’s rates policy unreasonably discriminated
against the owners of residential properties
in the township.
[13] The above
references to the rates that is to be found in the founding affidavit
amounts to a complaint about the excessive
rates charged by the First
Respondent in respect of vacant land, as opposed to the rates charged
on residential property. In the
founding affidavit the Applicant
clearly sought to make out the case that the particular rates that
were charged on vacant land
were excessive.
[14] The above case
that was sought to be made out is completely different from advancing
that the rate determined in respect of
vacant land is unlawful by
reason of the fact that the prescribed ratio in terms of Section
19(1)(b) was not followed.
[15] In fact, the
Applicant, in the founding affidavit expressly excluded reliance on
the provisions of Section 19 of the Rates
Act. In this regard the
following was stated:
“
I
am further advised that Section 19 of the Rates Act provides for
“impermissible differentiation” and prohibits a
municipality to levy different rates on residential properties except
in certain circumstances which are not relevant in this application.”
[16]
It is, of course, in the discretion of the Court in each particular
case to decide whether the Applicant’s founding affidavit
contains sufficient allegations for the establishment of his case.
Courts do not normally countenance a mere skeleton of a case
in the
founding affidavit, which skeleton is then sought to be covered in
flesh in the replying affidavit.
[6]
[17]
The Supreme Court of Appeal
[7]
also held that where the facts are squarely raised in the papers
before the Court the Court should not allow the continuation of
the
wrong because the legal representatives did not appreciate the legal
principles. The
Nedbank-matter
dealt with the incorrect se of relief sought by the Appellant in that
matter to wit relief under the
Promotion of Administrative Justice
Act, 3 of 2000
whilst under the Promotion of the present matter
the legal representatives did not seek to obtain incorrect relief.
The relief
sought in main simply became untenable by reason of a
judgement in the Supreme Court of Appeal that held directly the
opposite.
[18]
In my view the founding affidavit does not even contain the skeleton
of a case made out that the prescribed ratios in respect
of
residential properties and non-residential properties were not
complied with by the First Respondent. Neither is any case made
out
in the founding affidavit of improper differentiation in terms of the
provisions of
Section 19
of the Rates act.
[19]
It follows from the aforesaid that
the application must fail.
In
the result I make the following order:
1.
The application is dismissed.
2.
The Applicant is ordered to pay the costs.
SIGNED AT PRETORIA
ON THIS 14 DAY OF MARCH 2014.
Cilliers, AJ
Acting
Judge of the High Court of South Africa
Appearances:
For Appellant: Adv.:
D du Preez SC
Instructed by:
Johan Van der Vyver Attorneys
For Respondent:
Adv.: T Strydom SC
Instructed
by: Hugo & Ngwenya Inc
[1]
City
of Tshwane v Blom
2014 (1) SA 341
(SCA) at paras [12] to [18].
[2]
Triomf
Kunsmis (Edms) Bpk v Capital AE & CI Bpk
1984 (2) SA 261
(W) at
270A.
[3]
Poseidon
Ships Agencies (Pty) Ltd v African Coal and Exporting Co (Durban)
(Pty) Ltd
1980 (1) SA 313
(D) at 316A.
[4]
2013
(1) SA 420 (SCA).
[5]
At
pp 452-453, paras [55] to [58].
[6]
Titties
Bar and Bottle Store (Pty) Ltd v A.B.C. Garage (Pty) Ltd and Others
1974 (4) SA .. (T) at …
[7]
Nedbank
v Medelow NNO
2013 (6) SA 130
(SCA) at paragraph [17], p 136 F-G as
well as the authorities cited therein.