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[2004] ZAFSHC 55
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Boshoff v Nketoana (LA129/2003) [2004] ZAFSHC 55 (7 June 2004)
IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Application
No. LA129/2003
In
the matter between:
CHRISTIAAN
HENDRIK BOSHOFF
Applicant
and
NKETOANA
MUNICIPALITY
Respondent
___________________________________________________________
CORAM:
MALHERBE
J.P.
et
HATTINGH J
___________________________________________________________
HEARD
ON:
21 MAY 2004
___________________________________________________________
JUDGMENT
BY:
MALHERBE J.P.
___________________________________________________________
DELIVERED
ON:
7 JUNE 2004
___________________________________________________________
This is an application by the above respondent for leave
to appeal against a judgment by this Court dated 11 December 2003 in
Application
No. 1935/2003 (the main application). The grounds upon
which leave is sought, appear from the notice of the present
application
dated 18 December 2003 and need not be repeated.
Prayer 1 of the main application sought an order
declaring the imposition of rates by respondent on the farms of
applicant
ultra vires
and unlawful. Such an order was granted in those wide terms. The
first submission by Mr Kemp on behalf of respondent is that the
order
âhas the appearance and effect of a continuing order that the
imposition of rates on farm property is beyond the powers of
respondent.
Such relief does not flow logically or rationally from
the defects in the process of levying rates in respect of the
2002/2003 financial
year on which the applicant finally relied â¦..â
Counsel on both sides were
ad
idem
that the main application dealt solely
with the 2002/2003 financial year and that a small amendment to
prayer 1 can be effected by
agreement to put the matter beyond doubt.
In any event, Mr Kemp conceded correctly that if this was the only
ground upon which
he relied, he would not be entitled to leave.
His main argument was that the Court erred in holding
that section 93(9) of Act 117 of 1998 was not applicable to the facts
of this
case. His reliance upon this section in the main application
was to counter a submission on behalf of applicant that the valuation
roll which respondent used to levy the rates in question had not yet
been finalised and could, therefore, not have been used as basis
for
the rates. We have dealt with this argument in our previous judgment
and remain unconvinced that it has merit. In any event,
it was never
respondentâs case on the papers that the valuation roll that it
used was a âprovisionalâ roll in the sense that
it had not yet
been finalised. During argument counsel for applicant handed up
copies of Local Government Provincial Ordinances
in Gauteng and the
Eastern Cape from which it appears that special provision had been
made for provisional valuation rolls to be
prepared by local
authorities. We were told that the provinces of Mpumalanga, North
West and Limpopo had followed Gautengâs example
and that Western
Cape and Northern Cape in turn copied Eastern Capeâs example. It
appears, therefore, that the term âprovisional
valuation rollâ
does not merely mean a valuation roll that has not yet been finalised
as submitted on behalf of respondent.
No new arguments were advanced in support of the
application for leave to appeal. Having reconsidered all the
arguments we are not
convinced that respondent has reasonable
prospects of success on appeal.
Both
parties made use of the services of 2 counsel.
The
application is dismissed with costs, including the costs consequent
upon the employment of 2 counsel.
___________________
J.P. MALHERBE J.P.
I CONCUR
__________________
G.A. HATTINGH J
On
behalf of Applicant:
Adv. A.F. Jordaan
SC
and
Adv. B. Knoetze
instructed
by
Naudes
Bloemfontein
On
behalf of Respondent:
Adv. K.J. Kemp SC
and
Adv. C.A. Nel
instructed
by
Honey
Attorneys
Bloemfonein
/scd