About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2024
>>
[2024] ZAMPMBHC 10
|
|
Agri Piet Retief v Mkhondo Local Municipality and Another (5219/2022) [2024] ZAMPMBHC 10 (14 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE
NUMBER: 5219/2022
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED.
DATE
14 February
2024
SIGNATURE
In
the matter between: -
AGRI PIET
RETIEF
Applicant
and
MKHONDO
LOCAL MUNICIPALITY
First
Respondent
MUNICIPAL
MANAGER
Second Respondent
JUDGMENT
GREYLING-COETZER
AJ
Introduction
[1]
The applicant is Agri Piet Retief, a
farmers’ association within the eMkhondo, previously Piet
Retief District. For its
locus standi
the applicant relies on Section 38 of the
Constitution of the Republic of South Africa 1996 (“the
Constitution”), alleging
that its members have a vested right
and interest in the matter as the registered owners of immoveable
property within the area
of jurisdiction of the respondents.
[2]
The first respondent is the Mkhondo Local
Municipality, which municipality was established as a Category B
municipality in terms
of the
Local Government: Municipal Structures
Act 117 of 1998
. Its area of jurisdiction includes the towns of
eMkhondo. The second respondent is the municipal manager appointed in
terms of
Section 82 of the Local Government: Municipal Structures Act
117 of 1998 (Collectively referred to as the “Municipality”).
[3]
In the Notice of Motion, the applicant
seeks the following relief:
“
...
declaratory order
in the following terms:
That the 1
st
and 2
nd
respondents-
1.
Refrain
from
collecting property rates in respect of municipal financial years for
which the property rates were not published in the Mpumalanga
Provincial Gazette as stipulated in Section 14(2) of the Local
Government: Municipal Properties Act, Act 6 of 2004;
2.
Issue
the
clearance figures in respect of the amounts due in respect of
municipal service fees, surcharges on fees, property rates and
other
municipal taxes, levies and duties in connection with the property or
properties concerning for the two-year period, prior
to the date of
application for the clearance certificate required to issue the
clearance certificate required in terms of
Section 118
of the
Local Government: Municipal Systems Act 32 of 2000
;
3.
Issue
the
clearance certificates required in terms of
Section 118
of the
Local
Government: Municipal Systems Act 32 of 2000
once no amounts are due
in respect of municipal service fees, surcharges on fees, property
rates and other municipal taxes, levies
and duties in connection with
the property or properties concerned for the two years period, prior
to the date of application for
the clearance certificate;
4.
Follow
the
procedures prescribed in terms of the
Local Government: Municipal
Property Rates Act 6 of 2004
for the levying of the property rates
including the correct application of the ratio between the property
rates for the residential
properties and agricultural properties
which must be 1:0.25 after calculation of all applicable rebates and
discounts.
…”
(Own
emphasis)
[4]
In paragraph 9 of the founding affidavit,
the applicant avers that the purpose of the application is to obtain
declaratory relief
against the Municipality and echoes that set out
in the Notice of Motion.
[5]
Contrary to that set out in the Notice of
Motion and contrary to the heading of paragraph 27 of the founding
affidavit, the applicant
in paragraph 27 alleges in line with the
requirements of for interdictory relief: -
“
27.1
The members of the applicant, as registered owners, and sellers of
immoveable properties within the area of the first respondent
have
prima facie
vested rights and interest to be protected in this matter.
27.2 If this
application is not granted, there will be
irreparable harm
to
many members of the applicant in respect of the excessive clearance
figures they have to pay enriching the first respondent.
27.3
Where the first and second respondent failed to comply with the
relevant provisions of the
Local Government: Municipal Property Rates
Act 6 of 2004
and the
Local Government: Municipal Systems Act 32 of
2000
despite demand and communications as well as the court order
against them in the honorable court on 14 March 2022, there is
no
other remedy
then approaching
the court, available to obtain declaratory order referred to in
paragraph 10 above
”
. (own
emphasis)
[6]
The four central contentions by the
applicant are the following:
(a)
The Municipality failed to promulgate the
property rates levied by the first respondent for the financial years
2009-10 until 2018/19,
meaning the period 1 July 2009 to 30 June
2019. The consequence of the failure being that the property rates
did not come into
operation.
(b)
The Municipality failed to apply rebates
and discounts for the period 1 July 2009 to 30 June 2018;
(c)
The Municipality incorrectly applied the
1:0,25
ratio
between
residential and agricultural properties; and
(d)
The Municipality maintained a defective
system for the calculation of clearance figures.
[7]
The Municipality oppose the application on
inter alia the following grounds:
(a)
The applicant’s relief is not of a
declaratory nature, but amounts to a final interdict and no proper
case has been made out
for a final interdict;
(b)
The first prayer is incompetent, as it
seeks the court to restrain the performance of a constitutional
obligation without a proper
case being made out, there being no
factual basis or material averments made in support of the relief;
(c)
Prayers 2 and 3, it is unsupported by the
statutory requirements, for the issuance of rates clearance
certificates. At best, the
factual basis set out speaks to an
incorrect calculations complaint;
(d)
In respect of prayer 4, no basis is pleaded
for the relief sought, nor is the applicant seeking a declarator in
respect of the interpretation
of the
ratio
,
neither did it make out a case for the invalidity of any act or
omission of the Municipality, or any alleged non-compliance with
the
specific procedure.
Formulation of
prayers and affidavit
[8]
Considering the manner in which the relief
in the notice of motion was framed and the formulation of the
founding affidavit, it
is apposite to restate the fundamental
principles applicable to applications and to repeat the manner in
which prayers should be
approached in motion proceedings.
[9]
Uniform
Rule 6(1)
requires every
application to be brought on a notice of motion supported by an
affidavit. The affidavit should contain the facts
upon which the
applicant relies for the relief sought. The position is not different
whether interdictory relief or declaratory
relief is sought.
[10]
The prayers in a notice of motion identify
the relief which the applicant seeks. It is therefore vital that the
prayers be correctly
framed and stated with precision. When framing
the prayers in a notice of motion, regard must be had to what the
relief is that
the applicant is entitled to and the proposed orders
covering all the practical aspects necessary to render the relief
effective.
The importance further lies therein that court order which
will imitate from the prayers in the notice of motion, if granted,
ought
to be effective.
[11]
An
affidavit in support of an application should adequately lay a
factual basis for the relief sought in the notice of motion. The
facts must be set out clearly and in a chronological sequence,
without argumentative matter. Where this is not done, it may lead
to
a situation where a court is faced with facts which do not provide a
clear context, nor guide the court in respect of common
cause issues
and disputed facts, impeding on the court’s ability to evaluate
the application before it.
[1]
[12]
The statement of facts must at least
contain the following information: the applicant’s right to
apply; the facts indicating
that the court has jurisdiction; the
cause of action on which the applicant relies; and the evidence in
support of the application.
In
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of Republic of South
Africa and Others
1999 (2) SA 279
(T) the requirements for founding papers were summarized as follow:
“
It
is trite law that in motion proceedings the affidavit serves not only
to place evidence before the court but also to define the
issue
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of the court
but also,
and primarily for the parties. The parties must know the case that
must be met and in respect of which they must adduce
evidence in the
affidavit … an applicant must accordingly raise the issue upon
which it would seek to rely in the founding
affidavit. It must do so
by defining the relevant issues and by setting out the evidence upon
which it relies to discharge the
onus of proof resting on it in
respect thereof
.”
[13]
It flows that affidavits must, as a general
rule, contain admissible evidence, and the deponent ought to have
personal knowledge
of that which he or she is testifying about in
motion proceedings.
Statutory
provisions
[14]
It is convenient to
set out the statutory provisions germane to the applicant’s
case from the outset.
[15]
Section 14 of the
Local Government: Rates Act 6 of 2004 (“Rates Act”)
provide:
“
(1)
A rate is levied by a municipality by resolution passed by the
municipal council with a supporting vote of a majority of its
members.
(2) (a) A
resolution levying rates in a municipality must be annually
promulgated, within 60 days of the date of the resolution,
by
publishing the resolution in the Provincial Gazette….”
[2]
[16]
Section 1 of the
Rates Act defines
ratio
as:-
“
,
in relation to section 19, means the relationship between the cent
amount in the Rand applicable to residential properties and
different
categories of non-residential properties: Provided that the two
relevant cent amounts in the Rand
are
inclusive of any relief measures that amount to rebates of a general
application
to all properties
within a property category;” (own underline)
[17]
Regulation
2 and 3 of the Amended Municipal Property Rates Regulations on the
Rate Ratios Between Residential and Non-Residential
Properties,
published under GN R195 in
GG
33016
of 12 March 2010
[3]
provides:
“
2
Rates ratios to be applied
The
rate on the categories of non-residential property listed in the
first column of the table below may not exceed the ratio to
the rate
on residential properties listed in the second column of the table
below, where-
(a) the
first number in the second column of the table represents the ratio
to the rate on residential properties;
(b) the
second number in the second column of the table represents the
maximum ratio to the rate on residential
property that may be imposed
on the non-residential properties listed in the first column of the
table:
Categories
Ratio
in relation to residential property
Residential
property
1:1
Agricultural
property
1:0.25
Public
service infrastructure
1:0.25
Public
benefit organisation property
1:0.25
3
Commencement
The
provisions of
regulation
2
, as far as they apply to:
(a) Agricultural
and public service infrastructure property are deemed to have taken
effect from
1 July 2009
…” (own underline)
[18]
The relevant portion
of Section 118 of the Local Government: Municipal Systems Act 32 of
2000 (“Systems Act”) provides:
“
(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
.
(1A)
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.” (own underline)
Applicant’s
case
[19]
At the commencement of the hearing, counsel
for the applicant made it clear that the applicant does not dispute
the Municipality’s
power to levy rates, the applicant does not
seek relief in terms of Section 172 of the Constitution, the
applicant’s case
is not based on the publication of the
resolution contrary to the Rates Act but that the resolution was in
fact not published.
The applicant confirmed that they do no seek to
impugn any budgets adopted by the Municipality.
[20]
Through a letter directed to the MEC of
Local Government (Mpumalanga) during 2018, the applicant seeks to
demonstrate and allege
that the property rates levied by the
Municipality were not promulgated in the provincial gazette as
required in terms of Section
14(2) of the Rates Act, and for the
municipal financial years 2009/10 to 2018/19, meaning for the period
of 10 years between 1
July 2009 to 30 June 2019.
[21]
It was argued on behalf of the applicant
that if the property rates levied by resolution for a particular
municipal financial year
are not promulgated in the provincial
gazette as required in terms of Section 14(2) of the Rates Act, it
has the implication that
such property rates did not come into
operation, like it would be the case if the Municipality adopted
bylaws by resolution which
will come into operation and force only
when promulgated in the provincial gazette.
[22]
The applicant placed reliance on the matter
of
South African Property Owners
Association v The Council of the City of Johannesburg
(648/2011)
[2012] ZASCA 157
(8 November 2012), more particularly
paragraph [5] of said judgment, in that rates levied by
municipalities are unlawful if not
published in the provincial
gazette as prescribed.
[23]
The applicant further alleges that for the
period 8 years between 1 July 2009 to 30 June 2018 rebates and
discounts were not applied.
[24]
It is alleged that the Municipality further
incorrectly interpreted, calculated and applied the
ratio
of 1:0.25. According to the applicant the Municipality ought to have
calculated the
ratio
after the calculation of the applicable rebates and discounts. The
consequence being that the
ratio
of
the actual property rates paid in respect of residential properties
and the actual property rates paid in respect of agricultural
properties exceeded the
ratio
of 1:0.25.
[25]
Relying on a circular dated 16 February
2021, the applicant sought to demonstrates that the
ratio
in relation to Section 19 of the Rates Act means the relationship
between the Cent amount in the Rand applicable to residential
properties and the different categories of non-residential
properties: provided that the two relevant Cent amounts in the Rand
are inclusive of any relief measures that amount to rebates of a
general application to all properties within a property category.
[26]
The applicant alleges that several of its
members, including Mrs. MJM Boshoff, KP & E Paul and HC Marais
have fallen foul of
the Municipalities non-compliance with Section
118 of the Systems Act.
[27]
In respect of Mrs. MJM Boshoff, it is
alleged that a court order was obtained under case number 4135/2021,
ordering the Municipality
to correct the figures, which court order
was not complied with.
[28]
In respect of KP & E Paul, it is
alleged that five applications for a clearance certificate, dated 2
August 2022, reflect wrong
clearance figures. Further that the
Municipality was, on 22 August 2022, requested to correct the
clearance figures, and was provided
with the necessary calculations
in respect thereof. Notwithstanding the correct clearance figures
being made available for the
purpose of correction, no response was
received.
[29]
In respect of HC Marais, it is alleged that
the applications for the clearance figures, with clearance figures
are for the 2020/2021
financial year as provided by the Municipality,
do not accord with the relevant part of the property valuation roll
which contains
the valuations of the properties. It is alleged that
from the said roll it can be observed that the property values of the
properties
and the current property rates for 2020/2021 on these
properties are at the levied property rate of 0.0002914 Cents in the
Rand
of the property value for the agricultural properties, as
published under Local Authority Notice 41 of 2020 on 3 July 2020.
[30]
Per the applicant, the clearance figures
ought to be as follows:
SMALL HOLDING
PROPERTY VALUE
RATES 2020/2021
CLEARANCE FIGURES
DIFFERENCE TOO MUCH
9
R300 000
R874.20
R4 238.64
R3 364.44
11
R380 000
R1 107.32
R4 797.81
R3 690.49
12
R440 000
R1 282.16
R5 149.64
R3 867.48
47
R33 000
R96.16
R313.31
R217.15
53
R1 320 000
R3 846.48
R121 148.41
R117 301.93
54
R26 000
R75.76
R231.61
R155.85
59
R1 890 000
R5 507.46
R22 542.10
R17 034.64
61
R1 800 000
R5 245.20
R19 529.23
R14 284.03
[31]
It is alleged by the applicant that the
matters of the respective members are examples of non-compliance by
the Municipality with
the Rates Act and the Systems Act, and that
there exist other cases of their members who will benefit from the
declaratory order
sought.
The Municipality’
case
[32]
The Municipality contend that the relief
sought is final interdictory relief, opposed to declaratory orders.
Its contended that
in respect of Prayer 1 the applicant seeks the
Municipality to be interdicted from collecting property rates of the
10-year period
relied on. In doing so, the relief is directed at
interdicting the Municipality from exercising a constitutional power
to raise
revenue in terms of Section 96 of the Systems Act and that
the Municipality is duty-bound to impose and collect revenue
due
to it.
[33]
As a result of the applicant assuming that
it is declaratory relief which it seeks, oppose to a final
interdictory relief, the applicant
has failed to establish the
requirements for final relief.
[34]
It is the case for the Municipality that a
valid rate resolution involves three steps, being (1) a political
decision of the council
of the municipality to adopt a resolution;
(2) the promulgation of the resolution and (3) public notification of
the resolution.
The Municipality contend that the aforesaid steps
were complied with.
[35]
It is contended by the Municipality that
they accept that where a rates resolution is not validly adopted,
there may be no obligation
in respect of rates which are set to be
payable, but that same is not to be said in respect of the imposts.
[36]
The Municipality further contend that the
invalidation of a rates resolution affects the validity of the entire
budget for the year
in question, and that Sections 16 and 17 of the
Municipal Finance Management Act 56 of 2003 (“MFMA”) on
the adoption
of the budget must then be read together with Sections 3
and 14 of the Rates Act to determine whether the resolution of rates
is
invalid.
[37]
In the present matter the applicant has not
impugned the rates policy and/or the rates bylaw of the budget of any
financial year.
This omission, according to the Municipality, is
fatal to the relief sought.
[38]
The Municipality stated that the
resolutions relating to the budgets and the budget adoption processes
have not been attached in
order to avoid prolixity, and more so as
the applicant’s challenge is not in respect of the budgets of
the Municipality.
[39]
The Municipality contend that the
resolutions in respect of levying of rates, as required in terms of
Section 14(2)(b) of the Rates
Act, in draft form, accompanied the
budget, as required by Section 17(3)(a)(i) of the MFMA, when the
annua budget was tabled in
terms of Section 16(2) of the MFMA. On
this basis it is denied that the property rates levied were not
promulgated for the years
2009/10 until 2018/19.
[40]
Equally it is denied that if the property
rates levied by the resolution for a particular municipal financial
year is not promulgated,
as required in terms of Section 14(2) of the
Rates Act, it has the implication that such property rates did not
come into operation.
According to the Municipality, the relief in
prayer 1 is precluded by Section 27(4) of the MFMA, which reads that
non-compliance
by municipalities with the provision of this chapter
relating to the budget process or a provision in any legislation
relating
to the approval of a budget-related policy, does not affect
the validity of an annual or adjusted budget.
[41]
The Municipality contend that it’s
the budgets for the relevant years were enacted in compliance with
the required procedure
and substantive requirements imposed by law.
In the alternative, these budgets complied substantially with the
relevant statutory
requirements.
[42]
It was argued on behalf of the Municipality
that Section 14(2) of the Rates Act was amended with effect from 1
July 2015, and it
is unclear on which of the versions of the Rates
Act the applicant relies.
[43]
Dealing with the issue of the clearance
figures, the Municipality contend that prayers 2 and 2 are based on
invalid and unsound
legal foundation, and therefore incompetent. The
prayers include at least four sources of municipal revenue, such as
municipal
service fees, surcharges on fees, property rates and other
municipal taxes, levies and duties. Further that any finding of a
defect
in the rates resolutions does not affect the exercise of the
power of the Municipality to withhold the prescribed certificates in
respect of amounts that become due in connection with that property
for municipal service fees, surcharges on fees and other municipal
taxes, levies and duties. Property rates as levied in terms of a
municipal budget remain valid and imposable until such a budget
is
set aside.
[44]
The Municipality contend that the relief
sought in terms of prayer 3 cannot be predicated on the success in
respect of prayers 1
and 2, as the factual allegations on the
invalidity of the rates resolution only relate to a period 1 July
2009 to 30 June 2019,
and in consequence will defeat the purpose of
prayer 3, which holds that “
such a
clearance should be issued once no amounts are due
”.
[45]
The Municipality argue that the founding
affidavit is devoid of any allegation as to why the applicant should
not pay the amounts
due in the past two years before the issuing of
the rates clearance certificate, nor is there a challenge to the
validity of the
rates resolutions in respect of the two years
preceding the launch of the application. Therefore, Section 118(1) of
the Systems
Act has no relevance to the pleaded case of the
applicant, which relates to the period 1 July 2009 to 30 June 2019.
[46]
It is contended on behalf of the
Municipality that absent a declaratory order on the correctness of
the allegation in respect of
the interpretation of the
ratio
,
the relief in prayer 4 is merely academic.
[47]
In response to the applicant’s
contention that in the event that these amounts are paid, it would
result in excessive amounts
being paid to the Municipality its
alleges that the applicant is bound to follow the Municipality’s
credit control policy
promulgated in terms of Section 9(6) of the
Rates Act, and where there is an allegation of excessive amounts.
[48]
In response to the allegation of
irreparable harm, the Municipality allege that no factual basis has
been advanced to justify same.
Relief per the
notice of motion
[49]
The relief sought by the applicant is
worded so as to oblige this court to speculation what relief the
applicant truly seeks and
what the applicant seeks to achieve
thereby. Moreover, there is a palpable disconnect between the
respective prayers. Each
prayer appears to be founded on a
separate causa. A determination of one in favor of the applicant will
not influence the other,
save for prayer 2 and 3.
[50]
The language used by the applicant is
descriptive of prohibiting and mandatory conduct. The orders are
framed by employing verbs
such as “refrain”,
“issue” and “follow”. In other words, prayer
1 seeks this court to
order the Municipality not to collect property
rates in certain circumstances. Prayer 2 and 3 seeks this court to
order the Municipality
to issue clearance figures and thereafter once
all the amounts are no longer due to issue the clearance certificate
as contemplated
in Section 118 of the Systems Act. Prayer 4 seeks
this court order the Municipality to generally follow procedures
prescribed in
the Rates Act and System Act, and in doing so apply the
correct interpretation of how the
ratio
of 1:0.25 should be applied.
[51]
If the relief was truly declaratory in
nature the formulation of the prayers, particularly prayer 1 would
have been such to describe
the declaration sought. I agree with the
Municipality that the relief as frames is interdictory oppose to
declaratory.
[52]
That said, I proceed to consider what the
applicant relies on in its founding affidavit on both formulations
i.e., as interdictory
relief and as declaratory relief.
Interdictory relief
[53]
Interdicts
are orders granted to prohibit conduct by a respondent, or ordering a
respondent to perform particular acts. The relief
is concerned with
the avoidance of the infringement in the future of a right of the
applicant, and is not relief granted in respect
of past infringements
of a right.
[4]
[54]
It is trite
that the requirements for a final interdict are that (1) the
applicant must demonstrate a clear right; (2) there must
be an injury
actually committed or reasonably apprehended; and (3) there must not
be similar protection available to the applicant
by any other
remedy.
[5]
[55]
In
United
Democratic Movement & Another v Lebashe Investment Group (Pty)
Ltd & Others
Madondo
AJ, in a unanimous decision stated the following at paragraphs 47 and
48 entitled justification for the granting of
interdictory relief:
“
[47]
An interdict is an order made by a court prohibiting or compelling
the doing of a particular act for the purpose of protecting
a legally
enforceable right, which is threatened by continuing or anticipated
harm. ..
[48]
In granting an interdict, the court must exercise its discretion
judicially upon a consideration of all the facts
and circumstances.
An interdict is “not a remedy for the past invasion of rights:
it is concerned with the present and future”. The
past
invasion should be addressed by an action for damages. An interdict
is appropriate only when future injury is feared.”
(footnotes
omitted)
[56]
In
Economic
Freedom Fighters v Gordan and Others
[6]
the Constitutional Court stated:
“
[37]
This court in OUTA established that when granting an interim
interdict against a State entity – and: in effect,
restraining
the use of public power – courts should adroitly “consider
the probable impact of the restraining order
on the constitutional
and statutory powers and duties of the State functionary and/or organ
of State against which the interim
order is sought”.
[7]
…
“
[48]
We were cautioned by this Court in OUTA that, where Legislative or
Executive power will be transgressed and thwarted
by an interim
interdict, an interim interdict should only be granted in the
clearest of cases and after careful consideration of
the possible
harm to the separation of powers principle. Essentially, a
court must carefully scrutinise whether granting
an interdict will
disrupt Executive or Legislative functions, thus implicating the
separation and distribution of power as envisaged
by law. In
that instance, an interim interdict would only be granted in
exceptional cases in which a strong case for that
relief has been
made out.”
(footnotes omitted)
[57]
Above equally if not more so find application
when the court is asked to grant a final interdict.
Clear right
[58]
The
applicant contends that it is a farmers’ association within the
municipal district of the Municipality. It further alleges
that its
members are registered owners and sellers of immoveable property
within the municipal area of the Municipality, and have
a
prima
facie
vested right and interest to be protected.
[8]
[59]
The applicant also relies on Section 38 of
the Constitution of the Republic of South Africa, an alleged that
its members would
have vested rights and interests as registered
owners of immoveable properties within the area of the Municipality.
The applicant
does not allege that a right has been infringement or
threatened. The latter is more relevant in the consideration of
whether the
applicant has locus standi. Considering that Section 38
of the Constitution of the Republic of South Africa,
has
radically extended the common-law rule of standing and even
absent a direct allegation of
a
right been infringement or threatened, I will accept that the
applicant has the required locus standi.
[60]
That said the applicants mere standing in
the matter cannot blindly be accepted to be demonstrative of the fact
that it or its members
enjoys a clear right.
[61]
Whether
an applicant has a right is a matter of substantive law. Whether that
right is clear is a matter of
evidence.
In order therefore to establish a clear right the applicant has to
prove on a balance of probability facts,
which
in terms of substantive law, establish the right relied upon.
[9]
[62]
The deponent to the founding affidavit is
the secretary of the applicant. She confirms that the content of the
founding affidavit
is to the best of her knowledge true and correct,
but she does not aver that the facts set out in the founding
affidavit fall within
her personal knowledge. Other than the
resolution relied upon, authorizing the institution of the
application, the applicant has
not placed its constitution before
court demonstrating the basis of its membership or the purpose for
which it was formed or objects
its formation seek to achieve ,nor any
evidence in respect of its members’ memberships and their
ownership of immoveable
property within the municipal area of the
Municipality. The applicant can be excused for not placing personal
details of its members
before court but was at the very least
required to take the court in its confidence and disclose its
constitution, the amount
of members it has.
[63]
The applicant has not demonstrated that the
deponent has personal knowledge of the facts relies on in the
founding affidavit, nor
that it has a clear right.
[64]
That said, it can conceivably be accepted
that an owner of immovable property situated within the Municipality
has a right not to
be charged property rates where such rates have
not been legislated by promulgation, that Mrs. MJM Boshoff, KP &
E Paul and
HC Maree has a right to correct clearance figures to be
issued to them and that the ratio of 1:0.25 be correctly applied.
Whether
that right is clear will depend on the evidence.
[65]
Concerning prayer 1 :- Other than an
allegation that the rates resolutions for the period 2009 to
2019 has not been promulgated,
the applicant has not placed any
evidence before court demonstrating same. The Municipality denies
that the resolutions has not
been promulgated. The Municipality
further avers that even if the property rates have not been
promulgated, the resolution
determining the rates were part of the
adopted budgets and the validity of the budgets has not been
challenged. Therefore, the
property rates were published even if the
resolution was not promulgated.
[66]
Concerning prayers 2 and 3,
the
applicant alleges that the clearance figures issued are wrong. The
applicant attached what it contends to be the correct calculation.
The Municipality denies these conclusions. The Municipality further
contends that clearance figures includes at least four sources
of
municipal revenue and is not only property rates and that the
valuation roll can be used as the single source of rates
for
calculating the clearance figures. It further contends that at best
it may be an indication of incorrect calculations, but
the applicant
has not factually demonstrated that the incorrect amounts translate
to the relief sought. It was submitted in argument
on behalf of the
applicant that as the properties concerned are agricultural the only
applicable consideration for clearance figures
are the property
rates, this was however not born out by that which served before this
court.
[67]
Concerning
prayer
4,
the applicant alleges that the
Municipality failed to apply the correct interpretation and or
calculation of the ratio 1:0.25, but
does not lay the required
factual basis for the conclusion. The Municipality denies that it
incorrectly interprets the ratio.
The Municipality further
contends that absent a declaratory order over the correctness of the
interpretation preferred by the applicant
the relief is academic..
[68]
It was submitted on behalf of the applicant
that the municipality failed to provide proof that it promulgated the
resolutions and
failed to provide proof that it complied with section
118 of the Systems Act. This contention ignores the fact that the
onus to
prove is on the applicant and by applying, as this court is
required to do, the Plascon-Evans principle the version of the
Municipality
is to be accepted.
[69]
The applicant has failed to demonstrate
that it or its members have a clear right.
Injury actually
committed or reasonably apprehended
[70]
The relief per prayer 1 and 4, seeks to
interdict past conduct for the period of 10 years between 2009 and
2019. There is no allegation
that the applicant or is members that
such conduct is current or has a reasonable apprehension in respect
of the immediate future.
[71]
The
applicant alleges that if the application is not granted, there will
be irreparable harm to many members of the applicant in
respect of
excessive clearance figures that they have to pay, enriching the
Municipality.
[10]
This
allegation has not been borne out by the facts of this matter and
denied by the Municipality. For as far as the Municipality
may have
incorrectly calculated clearance figures, such harm cannot be
regarded to be irreparable.
Alternative relief
[72]
The
applicant alleges that considering the demands and communication, as
well as the court order dated 14 March 2022, there is no
other remedy
than to seek a declaratory order.
[11]
[73]
The applicant has various alternative
remedies to its disposal. In respect of its contention pertaining to
the non-promulgation
of the levy resolution, same can be challenged
by a legality review on an appropriate factual basis. Furthermore, in
respect of
incorrect clearance figures, the amounts can be paid and
recovered from the Municipality through an enrichment claim. In
respect
of the incorrect
ratio
,
the same applies. Alternatively, the applicant can follow the
Municipality’s credit control policy promulgated in terms
of
Section 96 of the Rates Act.
[74]
Moreover, and for as far as the applicant
has taken an administrative decision in applying the
ratio
incorrectly same can be challenged on a proper factual basis by a
review application.
[75]
For the reasons set out above, the
applicant has failed make out a case for interdictory relief.
The declaratory
relief
[76]
Section 21(1)(c)
of the
Superior Courts Act
10 of 2013
provides that a Division of the High Court has the power:
"....in
its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or
contingent right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination
."
[77]
The
wording of
section 21(1)(c)
is identical to that of its predecessor,
section 19(1)(a)(iii) of the Supreme Court Act 59 of 1959. In
Durban
City Council v Association of Building Societies
[12]
it was said at 32:
"The
question whether or not an order should be made under this section
has to be examined in two stages. First the Court must
be satisfied
that the applicant is a person interested in an "existing,
future or contingent right or obligation" and
then, if satisfied
on that point, the Court must decide whether the case is a proper one
for the exercise of the discretion conferred
on it
."
[78]
In
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[13]
Jafta JA said of s 19(1)(a)(iii) of the Supreme Court Act 59 of 1959
(the predecessor to s 21(1)a) that:
‘
[16]
Although the existence of a dispute between the parties is not a
prerequisite for the exercise of the power conferred upon
the High
Court by the subsection, at least there
must be interested
parties
on whom the declaratory order would be
binding
.
The applicant in a case such as the present must satisfy the court
that he/she is a person interested in an
“existing,
future or contingent right or obligation
” and
nothing more is required (Shoba v Officer Commanding, Temporary
Police Camp, Wagendrif Dam
1995 (4) SA 1
(A) at 14F). In Durban City
Council v Association of Building Societies
1942 AD 27
Watermeyer JA
with reference to a section worded in identical terms said at 32:
“
The question
whether or not an order should be made under this section has to be
examined in two stages. First the court must be
satisfied that the
applicant is a person interested in an ‘existing, future or
contingent right or obligation’, and
then, if satisfied on that
point, the Court must decide whether the case is a proper one for the
exercise of the discretion conferred
on it.”.
’
[79]
The
two-stage approach was further explained as follows in
Cordiant
supra
[14]
"During
the first leg of the enquiry the Court must be satisfied that the
applicant has an interest in an 'existing, future
or
contingent
right or obligation'. At this stage the focus is only upon
establishing that the necessary conditions precedent for the
exercise
of the Court's discretion exist. If the Court is satisfied that the
existence of such conditions has been proved, it has
to exercise the
discretion by deciding either to refuse or grant the order sought.
The consideration of whether or not to grant
the order constitutes
the second leg of the enquiry."
[80]
In
Cordiant supra,
this Court at paragraph 17 said that:
“
It seems to me
that once the applicant has satisfied the court that he/she is
interested in an “existing, future or contingent
right or
obligation”, the court is obliged by the subsection to exercise
its discretion. This does not, however, mean that
the court is bound
to grant a declarator but that it must consider and decide whether it
should refuse or grant the order, following
an examination of all
relevant factors. In my view, the statement in the above dictum, to
the effect that once satisfied that the
applicant is an interested
person, “the Court must decide whether the case is a proper one
for the exercise of the discretion”
should be read in its
proper context. Watermeyer JA could not have meant that in spite of
the applicant establishing, to the satisfaction
of the court, the
prerequisite factors for the exercise of the discretion the court
could still be required to determine whether
it was competent to
exercise it. What the learned Judge meant is further clarified by the
opening words in the dictum which indicate
clearly that the enquiry
was directed at determining whether to grant a declaratory order or
not, something which would constitute
the exercise of a discretion as
envisaged in the subsection (cf Reinecke v Incorporated General
Insurances Ltd
1974 (2) SA 84
(A) at 93A-E).’ “
[81]
A court is entitled to make a declaratory
order even where other remedies are available but not sought,
although the availability
of other remedies could be taken into
account when exercising its discretion in deciding whether or not to
make the declaration.
[82]
The
granting of a discretionary order is thus discretionary power and
cannot be granted where the issue has become abstract, hypothetical
and academic.
[15]
[83]
Aside the fact that the deponent as not
averred that she has personal knowledge of the fact set out in the
founding affidavit. For
the reasons set out in paragraph 62 supra,
the applicant has not demonstrated that it has an interest in an
existing, future
or contingent right or obligation justifying the
granting of the declaratory orders as sought.
[84]
Regarding its members and for as far as
they might be (which was not proved) to be immovable property owners
within the applicable
municipal area, I accept that generally
immovable property owners have interests in an existing, future or
contingent right or
obligation.
[85]
Concerning the second leg of the enquiry, I
am not persuaded to exercise my discretion in granting the
declaratory relief as sought,
for the reasons set out in paragraphs
65 to 68 and 72 to 74 supra.
[86]
Moreover, the factual basis relied on by
the applicant are historic. The property rates have been levied, the
latest as far back
as 2019. The application for clearance figures
relied on by the applicant are respectively August 2022 and July
2021. There is
no factual basis as to what has happened since then.
If the clearance figures have not been paid it would inevitably
require a
fresh application for clearance figures.
[87]
Thus, the
issues
are abstract, no longer have physical or concrete existence and are
academic.
[88]
In the circumstances the applicant has not
made out a case for the declaratory relief sought. The
application has unfortunately
been ill-conceived.
[89]
In order to accede to
the applicant’s request, any order granted by this court, would
necessitate the court to redraft the
prayers and thereby enter the
fray. As held in
National
Commissioner of Police and Another v Gun Owners South Africa
2020 (6)
SA 69
(SCA
),
where
the court made suggestions on the rewording of the notice of motion
in terms of which the court then made an order in favour
of the
applicant
:
“
…
there
is a real risk that judicial intervention of the kind in question may
render the court susceptible to an accusation of bias.
It is a
fundamental tenet of the administration of justice, now subsumed
under the Constitution, that all those who appear
before our
courts are treated fairly and that judges act — and are seen to
act — fairly and impartially throughout
the proceedings.
In President of the RSA v SARFU the Constitutional Court
explained it this way:
'A
cornerstone of any fair and just legal system is the impartial
adjudication of disputes which come before the courts and other
tribunals. This applies, of course, to both criminal and civil cases
as well as to quasi-judicial and administrative proceedings.
Nothing
is more likely to impair confidence in such proceedings, whether on
the part of litigants or the general public, than actual
bias or the
appearance of bias in the official or officials who have the power to
adjudicate on disputes.'
[26]
The second reason is that, in our adversarial system of litigation,
a court is required to determine a dispute as set out in the
affidavits (or oral evidence) of the parties to the litigation.
It is a core principle of this system that the judge remain neutral
and aloof from the fray. This court has, on more than one occasion,
emphasised that the adjudication of a case is confined to the issues
before a court:
'
(I)t
is for the parties, either in the pleadings or affidavits (which
serve the function of both pleadings and evidence), to
set out
and define the nature of their dispute, and it is for the court
to adjudicate upon those issues
.
That is so even where the dispute involves an issue pertaining to the
basic human rights guaranteed by our Constitution, for it
is
impermissible for a party to rely on a constitutional complaint that
was not pleaded. There are cases where the parties may
expand those
issues by the way in which they conduct the proceedings. There may
also be instances where the court may mero motu
raise a question of
law that emerges fully from the evidence and is necessary for the
decision of the case. That is subject to
the proviso that no
prejudice will be caused to any party by its being decided. Beyond
that it is for the parties to identify
the dispute and for the
court to determine that dispute and that dispute alone.'”
(own
emphasis)
[90]
It is also important to be alive to the fact
that the Municipality was called to court to answer a specific case
pleaded it a specific
manner and supported by the evidence the
applicant elected to place before court or elected to exclude. To
decide the matter on
different basis or by reading in word for the
purpose of clarifying that sought in the notice of motion would lead
to an injustice
perpetrated on the Municipality.
[91]
Had
the applicant formulated it prayers differently and placed before the
court an adequate factual basis it would have been open
to this court
consider and potentially to deal at the very least with the
consequence of a Municipality failing to promulgate a
resolution
levying rates on the basis of
Liebenberg
NO and Others v Bergrivier Municipality
[16]
where
Khampepe J dissenting from the majority held as follows:
“
[147]
The Constitution empowers municipalities to exercise original
legislative powers, including the power of taxation. As explained
in
Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others:
'Under
the interim Constitution (and the 1996 Constitution) a local
government is no longer a public body exercising delegated powers.
Its council is a deliberative legislative assembly with legislative
and executive powers recognised in the Constitution itself.
…
The
constitutional status of a local government is thus materially
different to what it was when Parliament was supreme, when not
only
the powers but the very existence of local government depended
entirely on superior legislatures. The institution of elected
local
government could then have been terminated at any time and its
functions G entrusted to administrators appointed by the central
or
provincial governments. That is no longer the position. Local
governments have a place in the constitutional order, have to
be
established by the competent authority, and are entitled to certain
powers, including the pow er to make by-law s and impose
rates.
…
It
seems plain that when a legislature, whether national, provincial or
local, exercises the pow er to raise taxes or rates . .
. it is
exercising a pow er that under our Constitution is a pow er peculiar
to elected legislative bodies. It is a pow er that
is exercised by
democratically elected representatives after due deliberation.'
[148]
The power of a municipality to impose rates is an exercise of an
original legislative power. Legislative acts depend for their
legal
efficacy on due promulgation. This is an incident of the rule of law
that has long been part of South African jurisprudence,
as
illustrated by the review of a few relevant cases in which I shall
now engage.
[149]
In Ismail Amod v Pietersburg Municipality100 the
Transvaal Supreme Court was faced with an appellant who had been
found guilty of contravening certain provisions of a municipal
by-law. The appellant challenged his conviction on the basis that
the
relevant by-law, although it had gone through a public-notification
process and had been assented to by the Lieutenant-Governor,
was not
effective law as it had not been duly promulgated by publication in
the Gazette. Innes CJ noted that the by-laws under
consideration
were intended to regulate an important aspect of public life, but was
constrained to uphold the appeal. He thus held
that, after there had
been a proper public-notification process and the Lieutenant-Governor
had approved the relevant by-laws:-
“
[the]
due
publication or promulgation [of the by-laws] is necessary before they
can have the force of law. Even if the statute had contained
no such
provision, the common law would have required some publication of
such by-laws. By the Roman-Dutch law, as indeed by any
civilised
system of jurisprudence, a law before it can take effect requires to
be promulgated. The expression of the will of the
legislative
authority does not acquire the force of law unless and until it has
been promulgated in due form for the information
of those whom it is
to affect. . . . In my opinion there has been no due promulgation of
these by-laws, and on that ground the
appeal must be allowed. I
regret to have to come to this conclusion, because the appellant has
contravened a very useful provision
for the protection of the public
health. But proper steps were not taken to legalise that provision,
and the Court has therefore
no option in the matter. This decision
may have wide results, for apparently the same procedure has been
followed in a great many
other cases. But that is a thing which the
Court cannot remedy.
”
[150]
Some years later the position in Amod was restated by Innes
CJ – by then Chief Justice of a territorially
unified South
Africa – in R v Gluck, namely that “[a]
law
must be promulgated before it can come into operation. That is a
principle well established in our practice and no authority
is needed
to support it. But it is the enacting instrument, the decree of the
law-giver which needs to be promulgated.
”
[151]
In Byers v Chinn and Another the Appellate Division had to
determine whether certain resolutions and regulations
adopted by a
Village Management Board under a particular statute needed to be
promulgated in order to be effective. The following
principles were
enunciated by the Court. First, any law, regulation or by-law
intended to have the force of law must generally
be promulgated, and
this promulgation should occur by way of publication in
the Government Gazette. Second, it is usually
“not
enough that an individual may have knowledge in some other way of the
alleged law, regulations or order . . . there
must be
promulgation”. Third, there are two exceptions to the
promulgation requirement: (i) where the statute provides
for an
alternative to publication in the Government Gazette and
(ii) where the instrument concerned is “not a ‘law’
within the meaning of the rule requiring promulgation of a law.” The
Court held that promulgation via publication in
the Gazette was
not required in the circumstances of that case because the relevant
statute contemplated no publication
process of the Village Management
Board’s decisions, because the decisions would only affect a
very small number of people
and because the decisions would be taken
“upon the spot” in the presence of those affected. In
other words, the
decisions could be seen as instruments falling
outside the category of laws requiring promulgation.
[152]
In R v Busa en Andere the Appellate Division considered the
distinction between formal promulgation requirements
and procedural
notice-and-comment or public-participation obligations. The Court
found that while requirements regarding formal
promulgation (such as
publication in the Gazette) are peremptory such that
non-compliance will lead to the law in question
never acquiring legal
force, a requirement to ensure that the public is informed about its
legal obligations may be directory and
non-compliance therewith may
not affect the legal efficacy of the statute under consideration.
[153]
From the above, the position at common law is clear: statutory laws –
whether they be Acts of Parliament or municipal
by-laws – must
be duly promulgated in order to have legal force, and this
promulgation occurs by way of publication in the
relevant Gazette.
Of course, Parliament may allow for alternative forms of
promulgation, and may impose additional publicity
requirements.
Courts and organs of state should, however, be wary of any approach
to enacting legislation that detracts from the
general principle of
gazetting statutes as a prerequisite for the legal force thereof.
[154]
The Interpretation Act preserves the common-law position and gives it
statutory force. Section 13(1) thus provides that
a law has
legal effect on “the day when the law was first published in
the Gazette as a law.” Ordinarily,
therefore,
all that is required for a law to come into operation is
publication
in the appropriate Gazette.
[155]
The position has not changed since the advent of the Constitution.
Section 162(1) of the Constitution, for example, provides
that a
“municipal by-law may be enforced only after it has been
published in the official gazette of the relevant province.” This
promulgation requirement is in addition to and separate from the
obligations regarding a public-comment procedure set out in section
160(4) of the Constitution. The Constitution thus enshrines both
the promulgation requirement and the importance of due publication
with regard to the legal efficacy of legislative acts. The common-law
and statutory position set out above is, in my view, wholly
consistent with section 162(1) of the Constitution.
[156]
In National Police Service Union and Others v Minister of Safety
and Security and Others the Supreme Court of Appeal
had to
determine whether a certain scheme for the rationalisation of various
police forces (in terms of the interim Constitution)
had to be
promulgated by publication in the Government Gazette in
order to have legal force. Smalberger JA confirmed
the continued
applicability under our constitutional dispensation of the common-law
and statutory position set out above:
“
It
is a requirement of both the common law and statute that subordinate
legislation, even if it has been validly enacted, is not
of binding
force and effect in law until it has been promulgated. The
requirement is subject to qualification
”
.
[157]
The qualifications referred to are those expressed
in Byers. In NPSU the Supreme Court of Appeal
ultimately
determined that promulgation was not required in the
circumstances of the case because the determination of the scheme was
administrative
rather than legislative in nature.
[158]
What the above discussion establishes is that in South Africa, as a
matter of common law and statutory law, and further in
terms of the
Constitution, legislative enactments must be duly promulgated by
publication in the relevant Gazette in
order to have the
force of law. Parliament may impose additional requirements for
promulgation, and, in exceptional circumstances,
an alternative form
of promulgation may be used. Accordingly, close attention must be
paid to the applicable statutory regime in
order to determine the
effects of non-compliance with obligations regarding the publication
of a law. While there may be less stringent
requirements for the
effectiveness of administrative acts, the prescribed validity
requirements for legislative enactments must
be strictly observed.
Did
the Municipality lawfully impose the rates during the years 2006/2007
to 2008/2009?
[159]
The Municipality claims that it imposed the rates lawfully for the
years 2006/2007 to 2008/2009 because it published notices
of the
relevant rates in local newspapers and therefore substantially
complied with the requirements of section 14(2) of the Rates
Act. Put
differently, the Municipality contends that an organ of state need
only substantially comply with its statutory obligations
regarding
the promulgation of taxes in order for the imposition of those taxes
to be lawful. While I accept that the doctrine of
substantial
compliance as described by my sister Mhlantla AJ has its place
in determining the general effects of non-compliance
with statutory
obligations, in the circumstances of this case I cannot agree with
the Municipality’s defence, in the light
of both the applicable
statutory scheme and the relevant general principles. I shall deal
with the statutory scheme first, and
thereafter consider the general
principles.
[160]
Section 14 of the Rates Act clearly imposes, in peremptory terms,
three distinct requirements for the proper promulgation
of rates.
Subsection (1) functions to ensure that rating decisions are
democratically made by elected representatives. This gives
effect to
section 160(2)(c) of the Constitution.
123
Subsection
(2) is aimed at ensuring that the constitutive act of legality –
promulgation by means of publication in
the Provincial Gazette
–
is
undertaken, in order to give effect to the rates resolution as a
source of law for the relevant period. This reflects the general
principle of our law that legislative enactments must be duly
promulgated by publication in the Gazette in order to have
the force of law. Finally, subsection (3) sets out a municipality’s
obligations with regard to informing the public of its
rates
obligations for the forthcoming year. This, of course, ensures that
members of the public are not expected to comply with
laws of which
they might not ordinarily have knowledge.
[161]
In accordance with the jurisprudence set out above, strict compliance
with formal promulgation prescripts is required and
“substantial
compliance” can offer the Municipality no defence. There is,
furthermore, no indication in the Rates Act
that section 14(2)
is merely directory in nature – the requirement it contains is
stated in unambiguous and mandatory
terms. Publication in a local
newspaper was therefore insufficient to discharge the Municipality’s
obligation to promulgate
the rates resolutions by publication in
the Provincial Gazette.
[162]
Moreover, section 14 clearly imposes discrete and peremptory
obligations. Discharge of one such obligation cannot, on its
own,
constitute discharge of another. Whilst publication in a local
newspaper may suffice to satisfy the requirements of
section 14(3)(b), it
certainly cannot discharge the
obligation set out in section 14(2). Similarly, just as notifying the
public of rates for the forthcoming
year could not satisfy the
obligation set out in section 14(1) of the Rates Act,
125
neither
could it satisfy the obligation set out in section 14(2). Holding
otherwise would contravene the very clear prescripts
of the Rates
Act.
[163]
In addition, even if one were to adopt a “substantial
compliance” approach in relation to the section 14(2)
obligation,
the Municipality’s conduct would still be found
wanting. The object of that provision is not to inform the public for
participation
purposes, but to ensure that the rates for a particular
year are formally constituted as legislative enactments. Accordingly,
publication
in a local newspaper would not achieve the purpose of
section 14(2) because such a newspaper is not the official and
authoritative
record of the conduct of the State.
[164]
I now turn to consider the general principles that inform my
rejection of the Municipality’s defence. Where the
State
purports to extract taxes from its citizens – conduct which
goes to the very heart of the social contract between a
government
and its people – that extraction must be done in a lawful
manner. Where a local authority purports to impose rates,
that
imposition must be done in accordance with the constraints that
Parliament has imposed. If we are to give cognisance to the
fact that
the Constitution now empowers municipalities to exercise original
legislative powers, we must also accept that municipal
authorities
may no longer adopt an informal approach to the exercise of their
powers. Similarly, it cannot be the case that municipalities
are
empowered to extract taxes pursuant to “laws” that they
devise, when citizens are unable to find those laws anywhere
in the
statute books. That is wholly inconsistent with a State founded on
the principle of legality. The High Court captured the
point well:
“
It
seems to me that the provisions of s 14(2) of the [Rates Act]
were enacted acknowledging the enhanced executive and legislative
status of municipal councils under the new constitutional order.
Whereas a less formal approach might have historically characterised
the approach to publication of municipal bylaws under the old order,
its continuation finds no justification under the current
constitutional framework.” (Footnotes omitted.)
[165]
Indeed, with the principle of legality lying at the heart of our
modern constitutional dispensation, I fail to see how
we could
or should adopt a less exacting standard for the legality of
legislative acts than the standard observed in the Transvaal
in 1904
and in the Union in 1922.
[166]
In the light of the above it is my view that, because the resolutions
in terms of which the Municipality purported to levy
rates for the
years 2006/2007, 2007/2008 and 2008/2009 were not duly promulgated by
publication in the Provincial Gazette as
required by
section 14(2) of the Rates Act, those rates were unlawfully imposed
and the Municipality has no entitlement thereto.
I would accordingly
uphold the legality challenges against the imposts for those years.”
(footnotes omitted)
[92]
Furthermore, consider
the interpretation concern regarding the
ratio
on the strength of the
Local Government: Municipal Property Rates Act
6 of 2004
, Circular No 7 (Issued on 15 December 2014) which states
that:
“
..
the ratio is based on the effective rate (i.e. the base rate less
relief measures that amount to rebates of a general application)
applicable to the two property categories in question, to ensure that
the ‘ratio’ is a fair reflection of how the two
property
categories in question are in truth being subjected to differential
rating. The definition makes it clear that the following
relationship
is applicable
(cR
(other property category) – (rebates))
ratio
=
(cR
(residential property) – (rebates))
in
the ratio:
where
:
“cR” is the cent in Rand rate:
“
rebates”
are those of general application to the specific property category;
and
“
other
property category” is either agricultural…..”
[93]
When this court reads
between the proverbial lines it appears by means of this applicant,
to correct what it perceives to be the
failure of the Municipality to
follow the Rates Act in respect of promulgation of the rates
resolution, cause the Municipality
to apply the ratio of 1:0.25 by
calculating the ratio after calculating applicable rebates and
discounts, and as a result move
the Municipality to issue clearance
figures on the aforesaid basis and issue clearance certificates once
no amounts are due. But
this purpose was not achievable in the
current form.
[94]
The prayers in the
notice of motion are imprecise and the case has been pleaded in such
a fatal fashion that it is not possible
for this court to exercise
its discretion in favor of the applicant. For the reasons set out
earlier in this judgment the application
has to fail.
Costs
[95]
There is no basis to
deviate from the general principle that cost should follow the
event.
Order
[96]
I accordingly make
the following order: -
1.
The
application is dismissed with costs.
GREYLING-COETZER
AJ
DATE
OF HEARING: 14
November 2023
DELIVERED
ON:
This judgment was
delivered electronically by circulation to the
parties’ representatives by way of email and by release to
SAFLII. The date
and time for delivery is deemed to be at 10h00 on 14
February 2024.
FOR
THE APPLICANT:
Adv
Boshoff
Instructed
by PWG Attorneys
c/o
WDT Inc Attorneys
E-mail:
charne@wdtatt.co.za
FOR
THE RESPONDENTS:
Adv
Ogunronbi
Instructed
by Madonsela Mthunzi Inc Attorneys
E-mail:
info@mma13.co.za
[1]
Reynolds
NO v Mecklenburg (Pty) Ltd
1996 (1) SA 75
(W) at 78
[2]
Prior
to 1 July 2015 section 14(2) provided that “
A
resolution levying rates in a municipality must be promulgate by
publishing the resolution in the Provincial Gazette
.”
[3]
The
applicant relies on regulation 2 of the regulation on the rate ratio
between the residential and non-residential categories
of property
published under GN R363 in GG 32061 dated 27 March 2009. The
substance is for the present purpose identical
[4]
Minister
of Health v Drums and Pailes Reconditioning CC t/a Village Drums and
Pailes
1997 (3) SA 867
(N) at 876-877
[5]
Setlogelo
v Setlogelo
1914 AD 221
[6]
2020 (6) SA
325 (CC)
[7]
National
Treasury v Opposition to Urban Tolling Alliance
2012
(6) SA 223
(CC)
par 46
[8]
Founding
affidavit par 27
[9]
Diepsloot
Residents & Landowners Association v Administrator, Tvl
1993
(3) SA 49 (T) 61.
[10]
FA
par 27.2
[11]
FA
par 27.3
[12]
1942
AD 27
[13]
2005
(6) SA 205 (SCA)
[14]
par
18
[15]
Pheko
and Others v Ekurhuleni Metropolitan Municipality
2012(2)
SA 598(CC) at 609 [32];
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[1996] ZACC 23
;
1997
(3) SA 514
(CC) at par
[15]
and
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005
(6) 205 (SCA)
[16]
2013
(5) SA 246
(CC)