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[2014] ZAFSHC 47
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Kalil N.O. and Others v Mangaung Metropolitan Municipality (2060/2013) [2014] ZAFSHC 47 (20 March 2014)
IN THE HIGH COURT OF SOUTH
AFRICA FREE STATE DIVISION. BLOEMFONTEIN
Case No: 2060/2013
In
the matter between
PAUL
ANTHONY KALIL N.O
……………………………………………………..
1
st
APPLICANT
WILHELMINA
CECELIA KALIL
………………………………………………...
2
nd
APPLICANT
STEPHANUS
ABRAHAM CLOETE BEZUIDENHOUT
………………………
3
rd
APPLICANT
BROLL
PROPERTY GROUP (PTY) LTD
………………………………………
4
th
APPLICANT
versus
MANGAUNG METROPOLITAN
MUNICIPALITY
.……………
1
st
RESPONDENT
MEMBER OF THE EXECUTIVE COUNCIL
FOR
LOCAL GOVERNMENT, FREE STATE
PROVINCE
………………………
2
nd
RESPONDENT
MAYOR OF THE CITY OF MANGAUNG
METROPOLITAN
MUNICIPALITY
……………………………
3
rd
RESPONDENT
THE
MUNICIPAL MANAGER OF THE CITY OF
MANGAUNG
METROPOLITAN MUNICIPALITY
………………..
4
th
RESPONDENT
CORAM
:
NAIDOO, J
JUDGMENT:
NAIDOO, J
DELIVERED ON:
20 MARCH 2014
JUDGMENT
[1]
This is an application for leave to
appeal against the whole of the judgment of my brother J.J. Mhlambi
AJ delivered on 29 May 2013,
with reasons therefor being furnished on
30 May 2013. Due to Mhlambi AJ’s unavailability, the matter was
placed before me
for hearing in December 2013. It appears from the
file that the heads of argument for the applicants was filed on 25
September
2013, while that for the respondents was filed on 13
December 2013. A date for hearing,
suitable
to all parties, could not be agreed on and the parties subsequently
agreed that the matter should be decided in Chambers.
Due to some
break in communication, the decision of the parties that the matter
be heard in Chambers was communicated to me late
in February
2014.
Advocate JY Claasen represented the
Applicants and Advocate M Moerane, with Mr L Manye represented the
1
st
and 3
rd
Respondents. The 2
nd
Respondent filed a notice to abide by the court’s decision. The
matter was initially opposed by all respondents, but the
4
th
respondent does not appear to have pursued the matter.
[2]
Having brought the application to court
on an urgent basis, one of the prayers for relief sought by the
applicants was an order
prohibiting the respondents from adopting a
resolution approving the municipal tax for the budget year 2013/2014
at their council
meeting to be held on Thursday 30 May 2013. The
application having been dismissed, the first respondent did indeed
adopt a resolution
on 30 May 2013 approving the municipal tax for the
budget year 2013/2014. An appeal in respect of this prayer for relief
will therefore
serve no practical purpose.
[3]
The other relief sought by the
applicants was for an order:
3.1
Declaring that the first respondent
failed to comply with prescribed statutory requirements and
procedures in arriving at the proposed
decision to impose a rate of
3.80 on the value of businesses, industrial and commercial
properties;
3.2
Declaring that in the future the first
respondent is obliged to comply with section 19(1 )(b) of the
Local
Government: Municipal Property Rates Act 6 of 2004
and the
regulations promulgated pursuant to section 19(2) of the Rates Act
and
section 21(1)(a)
and (c) of the
Local Government: Municipal
Systems Act 32 of 2000
.
[4]
The order sought in the latter mentioned prayers would involve the
interpretation of the relevant sections and regulations of
the
Local
Government: Municipal Property Rates Act 6 of 2004
as well as the
relevant regulations relating to the
Local Government: Municipal
Systems Act 32 of 2000
. These are matters which would be of interest
to other municipalities as well as the general South African public,
and are therefore
in the National interest.
[5]
It is true that in keeping with the
concept of separation of powers, one arm of government should not
interfere with the functions
of another. The duty of the courts,
however, is to patrol the boundaries of the Constitution to ensure
that there are no breaches
of such boundaries, which would impact on
the constitutionally entrenched rights of the citizenry of the
country. In the present
matter, another court may well interpret
differently the provisions of the statutes I have mentioned, and come
to a different conclusion
to the one reached in this matter. In the
circumstances, my view is that the applicants should be allowed to
appeal the decision
in respect of the relief mentioned in paragraph 3
above.
[6]
ORDER
The applicants are granted leave
to appeal to the Supreme Court of Appeal.
The
costs of this application are to be costs in the appeal.
S. NAIDOO, J
Counsel for Applicants: Adv JY
Claasen SC
Instructed by: Matsepes
26-28 Aliwal Street Bloemfontein
Counsel for Respondents: Adv M
Moerane SC
Instructed by: Moroka Attorneys
Suite 19 Reitz Park 74-80 Pres
Reitz Street
Westdene
Bloemfontein