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[2012] ZAGPPHC 49
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Fedbond Participation Mortgage Bond Managers (Pty) Ltd and Another v Steve Tshwete Local Municipality (45407/2011) [2012] ZAGPPHC 49 (30 March 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA /ES
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 45407/2011
DATE:30/03/2012
IN
THE MATTER BETWEEN
FEDBOND
PARTICIPATION MORTGAGE
BOND
MANAGERS (PTY)
LTD
.........................................................................
1st APPLICANT
FEDBOND
NOMINEES (PTY)
LTD
..................................................................
2nd APPLICANT
AND
THE
STEVE TSHWETE LOCAL MUNICIPALITY
…..........................................
RESPONDENT
JUDGMENT
PRINSLOO.
J
[1]
This application involves, inter alia, an interpretation of the
interplay between certain provisions of the Local Government:
Municipal Systems Act 32 of 2000 ("the Act") and certain
provisions of the Insolvency Act, Act 24 of 1936 ("the
Insolvency Act").
[2]
Before me, Mr Pincus appeared for the applicants and Mr Erasmus SC
appeared for the respondent.
Introduction
and Background
[3]
A close corporation known as TNT Trading 23 CC (in liquidation)
("TNT") was the registered owner of four immovable
properties, more fully described as the Remaining Extent of Portion 4
of Erf 143 Middelburg township ("the Remaining Extent
of Portion
4"), section 1 Andron of Erf 5227 Middelburg township ("section
1"), section 3 Andron of Erf 5227 Middelburg
township ("section
3") and section 4 Andron of Erf 5227 Middelburg township
("section 4").
[4]
On 13 March 2008 the respondent municipality launched an application
in this court under case no 13690/08 for the liquidation
of TNT, the
latter having been indebted to the respondent in the amount of some
R616 000,00 in respect of arrear rates and taxes
imposed and payable
in respect of the Remaining Extent of Portion 4. It was alleged that
TNT was unable to pay its debts and accordingly
commercially
insolvent.
[5]
A provisional liquidation order of TNT was granted on 4 November 2008
and the final order on 3 December 2008.
[6]
The second applicant is the major creditor in the liquidation of TNT
and proved a claim against the insolvent estate of TNT
in an amount
in excess of R16 million. The claim arose from a loan granted by the
second applicant to TNT in excess of R7 million
in approximately
1999. The loan was secured by participation bonds registered over the
aforesaid four properties. The second applicant
and its associate
company, the first applicant, operate a participation bond scheme in
terms of which they give loans to commercial
companies for monies
they have received largely from pensioners and widows and which loans
are secured by mortgage bonds registered
over the commercial
properties. The loans provide a regular monthly income to the widows
and the pensioners.
[7]
The respondent also proved a claim against the estate of TNT in an
amount exceeding R996 000,00.
[8]
Three joint liquidators, named A W Freeman, PJMvan Staden and T
Tylcoat were appointed by the Master of the High Court.
[9]
On or about 14 May 2009 the joint liquidators were authorised at a
second meeting of creditors to sell the aforesaid four properties
by
public auction.
[10]
A public auction was conducted on 27 November 2009 when the four
properties were sold to a certain Frederick Johannes Botha
for R5,3
million. Botha bought the properties for and on behalf of a company
to be formed ("the purchaser").
[11]
The applicants' attorney ("Mr Shaw") was instructed by the
joint liquidators to attend to the transfer of the four
properties.
For this purpose it was necessary to determine the amount that was
due to the respondent for municipal service fees,
surcharges on fees,
property rates and other municipal taxes, levies and duties imposed
by the respondent in respect of the aforesaid
properties so that the
respondent would issue the relevant rates clearance certificates, in
which would be certified that the amounts
for the aforesaid services
which became due had in fact been fully paid.
[12]
In this regard it is necessary to quote the first three subsections
of section 118 of the Act:
"118.
Restraint on transfer of property. -
(1)
A Registrar of Deeds may not register the transfer of property except
on production to that Registrar of Deeds of a prescribed
certificate
-
(a)
issued by the municipality or municipalities in which that property
is situated; and
(b)
which certifies that all amounts that became due in connection with
that property for municipal service fees, surcharges on
fees,
property rates and other municipal taxes, levies and duties during
the two years preceding the date of application for the
certificate
have been fully paid. (1 A) A prescribed certificate issued by a
municipality in terms of subsection (1) is valid for
a period of 60
days from the date it has been issued.
(2)
In the case of the transfer of property by a trustee of an insolvent
estate, the provisions of this section are subject to
section 89 of
the Insolvency Act, 1936 (Act no 24 of 1936).
(3)
An amount due for municipal service fees, surcharges on fees,
property rates and other municipal taxes, levies and duties is
a
charge upon the property in connection with which the amount is owing
and enjoys preference over any mortgage bond registered
against the
property."
[13]
Mr Shaw applied for these clearance certificates on 1 December 2009
in respect of the Remaining Extent of Portion 4 and on
24 December
2009 in respect of sections 1, 3 and 4.
[14]
The respondent furnished Mr Shaw with certain amounts it contended
had to be paid in order for the respondent to issue the
required
rates clearance certificates ("clearance certificates") in
respect of the four properties.
[15]
Mr Shaw did not agree with the amounts proposed by the respondent and
held the view that a lesser amount was payable.
[16]
The insolvent estate of TNT did not have sufficient funds to make
payment to the respondent in order to obtain the clearance
certificates before transfer could be effected. The applicants, as
the major creditors in the insolvent estate, had an interest
to
ensure that the sale of the properties went through and that transfer
was effected in the name of the purchaser. To this end,
the
applicants were prepared to make the funds available to obtain the
clearance certificates.
[17]
Because Mr Shaw, on behalf of the applicants, failed to resolve the
dispute with the respondent as to the exact amount due,
the parties
agreed that the applicant would pay the amount contended for by the
respondent and thereafter approach this court for
a declarator as to
the actual amount due, and a refund, if any, of any amounts paid in
excess of what was legally due. This is
the application which came
before me.
[18]
The higher amount required by the respondent, amounting to some R1.5
million, was duly paid by the applicants, and the clearance
certificates were issued on 24 February 2011. The transfer was
registered on 14 March 2011.
The
essence of the dispute
[19]
The applicants rely on the provisions of section 118(l)(b), supra, of
the Act, which provides that "the clearance certificate
must
certify that all amounts that became due in connection with that
particular property for municipal service fees, surcharges
on fees,
property rates and other municipal taxes, levies and duties during
the two years preceding the date of application for
the certificate
have been fully paid" (emphasis added).
To
this end, the applicants also calculated these amounts for the period
November 2007 to December 2009 (the two year period leading
up to the
month during which the clearance certificates were applied for) and
tendered payment of such an amount which tender,
as pointed out, was
rejected by the respondent.
[20]
The respondent, on the other hand, relies on the provisions of
section 118(2) of the Act, supra, which stipulates that in the
case
of the transfer of property by a trustee of an insolvent estate, the
provisions of section 118 are subject to
section 89
of the
Insolvency
Act.
It
was common cause before me, and rightly so, that the liquidators of
the insolvent close corporation are in the same position, for
present
purposes, as a trustee of an insolvent estate. The
Insolvency Act
finds
application in the event of the liquidation of a close
corporation in terms of the provisions of
section 66
of the
Close
Corporations Act, 69 of 1984
, read with
section 339
of the Companies
Act, 61 of 1973.
[21]
On the respondent's interpretation of
section 89
of the
Insolvency
Act, the
amount required for a clearance certificate to be issued
must be calculated in respect of rates and taxes which fell due over
a
different period (and in this case a longer period) than the two
year period preceding the application for the clearance certificate
provided for in section 118(l)(b) of the Act.
[22]
For illustrative purposes it is necessary to quote the provisions of
section 89
of the
Insolvency Act:
"89.
Costs
to which securities are subject. -
(1)
The cost of maintaining, conserving, and realising any property shall
be paid out of the proceeds of that property, if sufficient
and if
insufficient and that property is subject to a special mortgage,
landlord's legal hypothec, pledge, or right of retention
the
deficiency shall be paid by those creditors, pro rata, who have
proved their claims and who would have been entitled, in priority
to
other persons, to payment of their claims out of those proceeds if
they had been sufficient to cover the said cost and those
claims. The
trustee's remuneration in respect of any such property and a
proportionate share of the costs incurred by the trustee
in giving
security for his proper administration of the estate, calculated on
the proceeds of the sale of the property, a proportionate
share of
the Master's fees, and if the property is immovable, any tax as
defined in subsection (5) which is or will become due
thereon in
respect of any period not exceeding two years immediately preceding
the date of the sequestration of the estate in question
and in
respect of the period from that date to the date of the transfer of
that property by the trustee of that estate, with any
interest or
penalty which may be due on the said tax in respect of any such
period, shall form part of the costs of realisation.
(2)
...
(3)
Any interest due on a secured claim in respect of any period not
exceeding two years immediately preceding the date of sequestration
shall be likewise secured as if it were part of the capital claim.
(4)
Notwithstanding the provisions of any law which prohibits the
transfer of any immovable property unless any tax as defined
in
subsection (5) due thereon has been paid, that law shall not debar
the trustee of an insolvent estate from transferring any
immovable
property in that estate for the purpose of liquidating the estate, if
he has paid the tax which may have been due on
that property in
respect of the periods mentioned in subsection (1) and no preference
shall
be
accorded to any claim for such a tax in respect of any other period.
(5)
For the purposes of subsections (1) and (4) 'tax' in relation to
immovable property means any amount payable periodically in
respect
of that property to the State or for the benefit of a provincial
administration or to a body established by or under the
authority of
any law in discharge of a liability to make such periodical payments,
if that liability is an incident of the ownership
of that property."
(Emphasis added.)
[23]
The essence of the dispute can therefore be summarised as follows:
the applicants contend that, on a proper interpretation
of section
118 of the Act and
section 89
of the
Insolvency Act, the
period
during which the relevant rates and taxes fell due to the respondent
for purposes of calculating the amount payable in order
to obtain a
clearance certificate is the period stretching from two years
preceding the date of application for the clearance certificate
up to
the date when the clearance certificate is applied for.
On
the other hand, the respondent contends that the period reflected in
section 118(1) of the Act is affected by the provisions
of
section
89(4)
of the
Insolvency Act and
the relevant period for calculating
the amount due in order to obtain a clearance certificate is
therefore the period reflected
in
section 89(1)
of the
Insolvency
Act, namely
from two years immediately preceding the date of the
liquidation of the estate in question and from that date to the date
of transfer
of the relevant property.
[24]
It will be convenient to refer to the period contended for by the
applicants as "the
section 118
period" and the period
contended for by the respondent as the "
section 89
period".
Considering
the essence of the dispute
[25]
In deciding the issue, one needs perhaps look no further than the
judgment in City of Johannesburg v Kaplan NO & Another
2006 5 SA
10
(SCA). In that case the main issue was the extent of the period
over which the municipality (appellant) enjoys preference over any
mortgage bond registered against the property in respect of the
municipality's claim for municipal service fees, surcharges on
fees,
property rates and other municipal taxes, levies and duties as
stipulated in section 118(3) of the Act.
The
estate of which the first respondent was the liquidator was indebted
to the appellant municipality for these charges that had
fallen due
prior to the two year period preceding the date on which the first
respondent applied for a municipal clearance certificate
("the
section 118 period").
In
the court below the appellant municipality applied for a declarator
to the effect that its claim for the municipal taxes, property
rates
and other items as mentioned for the period prior to the section 118
period was also a charge upon the property as intended
by the
provisions of section 118(3) and enjoys preference over the mortgage
bond registered against the property, in this case
in favour of the
second respondent.
[26]
The application was dismissed by the learned judge a quo on the
ground that the section 118 period applied also to municipal
debts
secured under section 118(3) and the appellant was therefore debarred
from claiming any preference over the second respondent's
bond beyond
that period - at 13F.
[27]
The Supreme Court of Appeal subsequently found (in a case that did
not involve a liquidation or insolvency) that the ground
on which the
judge a quo relied, supra, was unsustainable. It was held in BOE Bank
Ltd v City ofTshwane Metropolitan Municipality
2005 4 SA 336
(SCA) at
342A and 343F that the only plausible interpretation of section
118(3) is that it is an independent self-contained provision,
not
subject to the time limit contemplated in section 118(1) - see Kaplan
at 13G-H.
[28]
It was under these circumstances that the second respondent, to
defend the order of the court a quo, relied on the cross-reference
in
section 118(2), to section 89 and, more particularly,
section 89(4)
of the
Insolvency Act. It
was argued on behalf of the second
respondent that the period of preference provided for in
section
118(3)
is limited to the period stipulated in
section 89(4)
of the
Insolvency Act namely
a period not exceeding two years immediately
preceding the date of the sequestration or liquidation - Kaplan at
14G-H.
[29]
It was this argument which appears to have prompted the learned judge
of appeal to examine the origins of
section 118
and
section 89.
He.
held, at 15A-B, that the principal elements of
section 118
are an
embargo provision with a time limit [section 118(1)], a security
provision without a time limit [section 118(3)], and a
provision
located between the two [section 118(2)] which subjects the
provisions of
section 118
as a whole to the terms of
section 89.
[30]
After analysing the origins of embargo provisions such as the one
contained in
section 118(1)
, and other related issues, the learned
judge said the following at 17H-18I:
"[24]
It will be noted that the two-year period in
section 89(1)
differs
from that appearing in
section 118(1):
two years prior to the date of
sequestration as against two years preceding the date of application
for a clearance certificate.
When a trustee makes application for a
certificate, the two year period under
section 118(1)
will
effectively be less than the two year period under
section 89(1)
,
because the date of application is necessarily later than the date of
sequestration. The first part of
section 89(4)
means that, when an
embargo period laid down in any other law is effectively shorter than
the two year period in
section 89(1)
, the first-mentioned period
continues to apply after sequestration. So, the operation of
section
118(1)
is not affected by
section 89(4).
When, however, the embargo
provision in any other law is effectively longer than that in
section
89(1)
, then, by reason of the provisions of
section 89(4)
, the period
in
section 89(1)
will override the period in the other law.
[25]
Before proceeding, it may assist in providing a clearer appreciation
of the conclusions at which I have thus far arrived if
I summarise
the operation of
section 118(1)
and (3) in situations where the
municipal debtor is not subject to a sequestration or liquidation
order and to compare that with
the position after the making of such
orders.
[26]
When such a debtor is not subject to such an order-
(1)
no property may be transferred unless a clearance certificate is
produced to the Registrar of Deeds that certifies full payment
of all
municipal debts as described in
section 118(1)
which have become due
during a period of two years before the date of application for the
certificate;
(2)
any amount due for municipal debts (ie not limited by the aforesaid
period of two years) that have not prescribed is secured
by the
property and, if not paid and an appropriate order of court is
obtained, the property may be sold in execution and the proceeds
applied in payment of the debts. In such event, the proceeds will be
applied to payment of the municipal debts in full. Only after
satisfaction of such debts will the remainder, if any, be available
for payment of the debt secured by a mortgage bond over the
property.
[27]
Once a debtor has been sequestrated or liquidated, the position is,
to the extent that the municipal debts are 'taxes' within
the meaning
of
section 89(5)
, (but not otherwise) the following-
(1)
no property may be transferred unless the clearance certificate
certifies full payment of municipal debts that have become due
during
a period of two years before the date of application for a
certificate;
(2)
the preference accorded by
section 118(3)
in favour of the
municipality over that of a holder of a mortgage bond is limited to
claims which fell due during the period laid
down in
section 89(1)
,
ie two years prior to the date of sequestration or liquidation up to
the date of transfer;
(3)
interest charged on the secured claim of the municipality is secured
as if it were part of the claim.
[28]
After sequestration or liquidation those municipal debts that are not
'taxes' within the meaning of
section 89(5)
continue to attract the
benefits of
section 118(3)
without being affected by
section 89
of
the
Insolvency Act."
[31
]
In the present case, it is clear that the embargo period laid down in
section 118(1)
is considerably shorter than the two year period in
section 89(1)
so that "the first-mentioned period continues to
apply after sequestration" and "the operation of
section
118(1)
is not affected by
section 89(4)
". In this case, the
embargo period is only the two years preceding the date of
application for the clearance certificate whereas
the
section 89(1)
period would extend from 13 March 2006 (two years before the
liquidation proceedings were launched, being the commencement of the
liquidation proceedings in terms of section 348 of the Companies Act,
1973) until 14 March 2011 when the transfer of the properties
was
registered. This would be an effective period of five years as
opposed to the two year section 118 period.
[32]
Consequently, and in view of what was held in Kaplan, supra, the
section 118 period should apply to the present case and not
the
section 89 period as contended for by the respondent.
[33]
I add that in Kaplan there was some debate and uncertainty as to
whether the rates applicable in that case fell inside the
ambit of
"taxes" as intended by the provisions of
section 89(5)
of
the
Insolvency Act
- see generally, Kaplan at 19B-G. Nothing turns on
this for present purposes: once it is established that the
section
118
period is shorter than the
section 89
period, the first-mentioned
period will be applicable for purposes of determining the amount
payable in order to obtain a clearance
certificate.
In
any event, there was no debate before me about whether or not the
applicable rates and taxes fall inside the ambit of the
section 89(5)
definition. It appeared to be common cause that the only items which
were required to be paid by the applicants in order to obtain
clearance certificates were assessment rates and these would, in my
view, on the probabilities fall inside the ambit of "tax"
as intended by
section 89(5)
of the
Insolvency Act because
they are
generally "payable periodically in respect of that property"
to the state or a provincial administration or
another authority such
as the respondent and "that liability is an incident of the
ownership of that property".
[34]
Returning to the finding by the learned Judge of Appeal in Kaplan,
supra, that an embargo period shorter than the
section 89(1)
period
(such as the section 118 period in the present case) will still apply
after sequestration or liquidation for purposes of
calculating the
dues payable in order to obtain a clearance certificate, it seems,
with respect, that this finding is fortified
by the following
consideration: there appears to be no logical or justifiable reason
for expecting an insolvent company or close
corporation or individual
to pay more than a flourishing company not under liquidation in order
to obtain a clearance certificate.
If that was so, in the present
case, the liquidator would have had to pay rates which fell due over
a five year period in order
to obtain a clearance certificate whereas
a successful counterpart, not under liquidation, would only have had
to pay dues calculated
over a two year period. In the present
instance, the practical result of such a state of affairs is
illustrated by the fact that
the respondent, calculating over the
longer period, insisted on payment of an amount of some Rl,5 million
before the clearance
certificates would be issued whereas Mr Shaw
calculated an amount due of.only some R620 000,00 based on the
section 118
period.
[35]
In this regard, it can be observed that one of the rules of statutory
interpretation is that statutes are presumed not to sanction
discrimination or inequality. The nature of this presumption was
stated as follows in Lister v Incorporated Law Society, Natal
1969 1
SA 431
(N) at 434A-B:
"The
court will not lightly construe a statute in such a way that its
effect is to achieve apparently purposeless, illogical
and unfair
discrimination between persons who might fall within its ambit. If
the language of the statute is reasonably capable
of an
interpretation which avoids that result, that is the interpretation
which the court will give it rather than one which would
attribute to
the Legislature a whimsical predilection for purposeless and unfair
discrimination." - See J R de Ville Constitutional
and Statutory
Interpretation p202.
[36]
In the result, I have come to the conclusion that the
section 118
period is the one to be applied for purposes of deciding the dispute
between the parties.
Was
interest payable on the outstanding rates that had to be paid in
order to obtain the clearance certificates?
[37]
As I indicated earlier, the applicants paid the amount demanded by
the respondent in order to urgently obtain clearance certificates
on
the understanding that the applicants would later approach this
court, as it has now done, for declaratory relief and a refund
in the
event of it being found that an overpayment was made.
[38]
The amount paid under these circumstances by the applicants to the
respondent was Rl 554 240,73. This amount included interest.
[39]
The applicants, through Mr Shaw, calculated that the amount that was
legally due, calculated on the basis of the
section 118
period, and
not including interest, was R620 366.40.
[40]
The difference, according to the applicants, between the two amounts,
and representing the alleged over-payments made by the
applicants,
comes to R933 974,33 which forms the subject of the refund now
claimed, with mora interest, in addition to the declaratory
relief as
to the correct calculation period to be applied.
[41]
The applicants argue that, where the
section 118
period is the
applicable one. and where
section 118
is silent on the question of
interest being payable on the
"municipal
service fees, surcharges on fees, property rates and other municipal
taxes, levies and duties" during the particular
two year period
preceding the application for the certificate, there is no basis on
which the respondent could have insisted on
interest being paid on
these arrear dues.
[42]
In addition, the applicants argue that even though the
section 89
period stipulates that "any tax as defined in subsection (5)
which is or will become due thereon in respect of any period
not
exceeding two years immediately preceding the date of the
sequestration of the estate in question and in respect of the period
from that date to the date of the transfer of that property by the
trustee of that estate, with any interest or penalty which mav
be due
on the said tax in respect of any such period, shall form part of the
costs of realisation" (emphasis added), this
provision relating
to interest or penalty does not apply because of the finding in
Kaplan that the operation of
section 118(1)
is not affected by
section 89(4).
[43]
Finally, it was argued before me by counsel for the applicants that
where
section 89(1)
of the
Insolvency Act provides
for interest or
penalties (as quoted) on the said tax to be paid, it is simply
referring to the fact that the tax together with
interest or
penalties forms part of the cost of realisation and does not affect
section 118(1) of the Act which provides for what
is to be paid in
order to obtain the clearance certificates.
[44]
Mr Erasmus, on behalf of the respondent, relied, firstly, on the
provisions of
section 89(3)
of the
Insolvency Act which
stipulate
"... any interest due on a secured claim in respect of any
period not exceeding two years immediately-preceding
the date of
sequestration shall be likewise secured as if it were part of the
capital sum".
[45]
Counsel also argued, if I understood him correctly, that the rates
and taxes applicable to this case which were payable in
order to get
clearance certificates formed part of the secured claim as intended
by
section 89(3)
of the
Insolvency Act. This
much is clear from the
provisions of section 118(3) of the Act.
[46]
Where
section 89(1)
of the
Insolvency Act provides
that any municipal
tax as defined in
section 89(5)
of the
Insolvency Act shall
form part
of the costs of realisation "with any interest or penalty which
may be due on the said tax in respect of any such
period", this
amounts to an express stipulation by the legislature that interest or
penalties are payable on municipal taxes
(such as those applicable to
the present case) which form part of the secured claim of the
municipality and, for that matter, of
the costs of realisation.
[47]
In my view, the submissions made by Mr Erasmus are well-founded and
correct.
[48]
On the reasoning proposed on behalf of the applicants, it seems that
one would have to find that no interest is payable on
arrear taxes
which became due over the
(shorter)
section 118
period, but interest and penalties are payable when the
same taxes form part of the costs of realisation and calculated over
the
longer
section 89
period. I consider this distinction to be
artificial and, with respect, nonsensical.
[49]
Quite apart from the aforegoing considerations and statutory
provisions, it seems to me, as a general proposition, that interest
ought to be claimable, in the form of mora interest, on debts (in
this case municipal taxes) which have been outstanding for a
number
of years because of the property owner's failure to make payment on
due date - see the brief discussion on the subject in
Wille's
Principles of South African Law 8'h ed p578 and the authorities there
quoted.
[50]
Through the diligence of both counsel, which is appreciated, the
parties agreed on figures which will be payable in the form
of a
refund in the event of a finding on the one hand that interest was
payable on the arrear dues to be settled in order to obtain
clearance
certificates and, on the other hand, that interest was not so
payable. In the former case, with interest payable, the
refund would
have to amount to R766 511,76 with interest thereon at the mora rate
of 15,5% per annum from 25 February 2011 to date
of payment and, in
the latter case, the refund would amount to the larger figure of R933
874,33.
For
the reasons mentioned, the first-mentioned figure will be reflected
in the order which I propose making.
The
respondent's counter-application
[51]
The respondent launched a counter-application on the basis that the
original payment of some R1,5 million represented an underpayment
of
some R206 000.00 because the
section 89
period (two years before the
date of liquidation) was calculated over too short a period. The
calculation period should have commenced
on 13 March 2006 in view of
the presumption contained in section 348 of the Companies Act, 1973
relating to the date when the liquidation
proceedings were launched.
For purposes of the initial calculation, the liquidation date was
only taken to be December 2008.
[52]
Nevertheless, during the proceedings before me the
counter-application was abandoned and Mr Erasmus, quite properly,
conceded
that the counter-application falls to be dismissed with
costs.
Amendment
of nra\cr 1 ofiho notice of motion
[53]
During my debate with Mr Pincus for the applicants I pointed out to
him that the first prayer of the notice of motion was not
adequately
crafted for purposes of obtaining the relief sought by the
applicants. An appropriate amendment was applied for and
granted by
agreement.
The
order
[54]
I make the following order:
1.
It is declared that the relevant period for which rates were payable
in order to oblige the respondent to issue clearance certificates
in
respect of the properties referred to in paragraph 6.1 of the
founding affidavit is the period referred to in
section 118(1)
of the
Local Government: Municipal Systems Act 32 of 2000
.
2.
The respondent is ordered to pay the applicants the amount of R766
511,76 together with interest thereon at the rate of 15,5%
per annum
calculated from 25 February 2011 to date of payment.
3.
The respondent is ordered to pay the costs of the application.
4.
The counter-application is dismissed with costs.
W
R C PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
45407-2011
HEARD
ON: 17 FEBRUARY 2012
FOR
THE APPLICANTS: S P PINCUS
INSTRUCTED
BY: HILARY SHAW ATTORNEY
FOR
THE RESPONDENT: M C ERASMUS SC
INSTRUCTED
BY: VAN DEVENTER CAMPHER ATTORNEYS