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[1991] ZASCA 87
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Municipality of the City of Cape Town v Cairns NO and Others (641/89) [1991] ZASCA 87; [1991] 2 All SA 483 (A) (23 August 1991)
Case No 641/89
THE MUNICIPALITY OF THE CITY OF
CAPE TOWN
..Appellant
and
I
M
CAIRNS IN HIS CAPACITY AS CHAIRMAN
OF THE VALUATION COURT, CAPE
TOWN
1st Respondent
THE
D
IRECTOR OF
VALUATIONS
2nd Respondent
GOUE AKKER (EDMS) BPK
3rd
Respondent
HEFER JA
case No 64 1/89
IN THE SUPREME COU
RT OF SOUTH
AFRICA
APPELLATE DIVISION
In the matter between
THE MUNICIPALI
T
Y O
F
THE CITY OF
CAPE TOWN
Appellant
and
I
M
CA
I
RNS IN
H
IS CAPACITY AS CHAIRMAN
OF THE VALUAT
I
ON COU
R
T,
C
APE TOWN
1st Respondent
THE DIRECTOR OF VALUATIONS
2nd Respondent
GOUE AKKER
(EDMS) BPK 3rd
Respondent
CORAM
: JOUBERT, HEFER,
MILNE, EKSTEEN JJA et KRIEGLER AJA.
HEARD
: 20 MAY 1991.
DELIVERED
: 23 AUGUST 1991.
JUDGMENT
HEFER JA.
2.
HEFER JA
:
Section 39(1) of the Valuation
Ordinance 26 of 1944 (C) (" the Ordinance") requires a
general valuation to be made at least
once in every ten years of all
immovable property in every local authority. The valuation process
entails, apart from the actual
valuation by a valuer appointed in
terms of sec 28, the preparation of a valuation roll in terms of sec
51, the adjudication by a
valuation court on objec-tions thereto in
terms of sec 55 and the certifica-tion in terms of sec 59(2) of the
roll finally adop-ted
by that court.
The question
posed by the present appeal
relates to the
application of the provisions of
the
Ordi-
nance to the
business and shopping centre in Cape Town commonly referred to as the
Golden Acre which was con-
3. structed partly below the
surface of Adderley , Castle , Strand and Plein Streets. (The
relevant part of Plein Street will be referred
to as area l,that of
Strand Street as area 2 and that of Adderley and Castle Streets as
area 3.) The streets vest in the appellant
in terms of sec 122(1) of
the Municipal Ordinance, 1974 and the under-ground areas where third
respondent has constructed a shopping
mall is occupied by the
latter,in the case of area 1, by virtue of a servitude'and, in the
case of areas 2 and 3, as lessee under
a lease with the appel-lant.
Practically speaking, what we are
concerned
with is the valuation, in the
course of a general valua-tion, of the underground areas. The dispute
arose from an objection filed
on third respondent's behalf with the
secretary of the valuation court. in the following terms:
4.
"1. Eiendomsverwysing : WA
021B019 Lys Nr. 45 Kaart Nr. 11 Wyk Nr. 6
GRONDE VAN BESWAAR
Die betrokke 'eiendom' is 'n
ondergrond-se ontwikkeling onder Pleinstraat, en word foutiewelik op
die veldvorm be-skryf as Erf 107745.
Die betrokke 'eiendom' is nie 'n
enti-teit in die registers van die Aktes-kantoor nie en is nie
'grond' soos be-doel in die Skattingsordonnansie
nie.
Gevolglik moet die 'eiendom'
geheelen-al van die skattingslys geskrap word.
2.. Eiendomsverwysing : WA 021B027
Lys Nr. 50 Kaart Nr.ll Wyk 6
GRONDE VAN DESWAAR
Die betrokke 'eiendom' is 'n
onder-grondse ontwikkeling onder Strand-straat, en word as 'ERf Nr.
0' beskryf op die veldvorm.
Soos in geval yan die 'eiendom'
in
1 hierbo, is dit ook nie 'n
entiteit in die registers van die Akteskantoor nie en is dit nie
'grond' soos bedoel
5.
in die Skattingsordonnansie nie.
(c) Gevolglik moet hierdie
'eiendom' ook geheelenal van die skattingslys ge-skrap word.
3. Eiendomsverwysing : WA 021B029
Lys nr. 51 Kaart Nr. 11 Wyk 6
GRON
D
E VAN BESWAAR
Die betrokke 'eiendom' is 'n
onder-grondse ontwikkeling geleë gedeelte-lik onder
Adderleystraat en gedeelte-lik onder Kasteelstraat
en word ook as
'Erf Nr. 0' beskryf in die veld-vorm.
Soos in geval van die 'eiendomme'
be-skryf in 1 en 2 hierbo, is dit ook nie 'n entiteit in die
registers van die Ak-teskantoor nie
en is dit nie 'grond' soos
bedoel in die Skattingsordonnasie nie.
Gevolglik moet hierdie 'eiendom'
ook ge-heelenal van die skattingslys geskrap word."
The valuation court heard oral
argument on the ob-jection and decided that-
6.
"(the)
underground areas, shown as No's 1, 2 + 3 on Map A, P45 should be
deleted from the roll."
This
decision led to an application by the appellant to
the Cape
of Good Hope Provincial Division to review and
set it
aside. The following three grounds f or review
were
advanced:
"1.
The valuation court has no power, autho-rity, jurisdiction or
competence to re-move properties and their valuations from
the
valuation roll and that the said de-cision of the valuation court is
therefore ultra vires and should be set aside.
Alternatively
the valuation court misdi-rected itself on the facts and failed to
apply its mind to its statutory task and thus fatally
misconceived
its function.
Alternatively
and in any event there is no basis in law or in fact for the
deci-sion that the underground areas be de-leted from
the valuation
roll and that such decision is therefore grossly ir-regular."
The court
a
quo
( CONRADIE J and COMRIE AJ)
refused
the application but granted the appellant leave
7. to appeal to this court.
In support of the contention in
the first ground of review appellant's counsel referred to Hager
and
Oth
e
rs v
W
i
ndhoek
Municipal Council
1961(3) SA 806 (A) in which sec 181 of the then South-West African
Mu-nicipal Ordinance 3 of 1949 as amended was considered. Sec
181(5)
contained provisions somewhat similar to sec 55 of the Ordinance to
which reference will be made later. In that case the valuer
did not
personally in-spect the majority of the properties he had to value
and, in the cases of those he did inspect, he had incomplete
data
before him. This led the valuation court to be-lieve that he had not
applied his mind to the valuations, and to declare the
entire roli
invalid.. This coyrt con-firmed the ruling of the trial court that it
was not com-petent for the valuation court to do
so. Relying on the
similarity between sec 55 of the Ordinance and sec 181 (5) (b) of the
South-West African ordinance and on certain
8.
remarks
in STEYN CJ's judgment in
Hager's
case appel-lant's counsel submitted that the first ground of re-view
is a sound one. For the reasons which
follow
I
do not
agree.
Since it does not deal with the
same legis-lation the decision in
Hager's
case is not directly
in point. Nor can any material assistance for the de-termination of
the present matter be derived from the judgment.
The
ratio
decidendi
was simply that the valuation court - a tribunal
created by a statute - had no power in terms of the enabling
legislation to set
a-side the entire valuation roll on the ground
that in law the valuer had not applied his mind to the valua-tions
appearing therein.
That the powers of statutory bodies are confined
to those expressly or impliedly con-ferred on them in the enabling
legislation is
a truism. But the enquiry in every case of an
allegedly excessive exercise of jurisdiction is whether the act
complained
9. of is authorised by the express
or implied provisions of the statute whence the power is derived.
Therefore, although some of the
dicta
in the judgment in
Hager's
case will have to be examined in order to gauge their
persuasive
force, what must be considered in the pre-
sent
matter, are the provisions of the Ordinance.
I
turn to do so.
As mentioned earlier a general
valuation must in terms of sec 39(1) be done at least once in every
ten years. Sec 52 enjoins the valuation
court, as soon as a general
valuation roll has been prepared, to pub-lish a notice containing
certain prescribed particu-lars. It
must
inter
alia
(
in terms of paragraph (b) call
"upon any owner or occupier
of immovable pro-erty in the local authority area who has any
objection to the valuation roll to
lodge
10.
his objection with the secretary
of the valu-ation court ..."
Sec 55 deals with the proceedings
of the valuation court.
Subject to certain provisions not
presently relevant it
prescribes that -
"(t)he valuation court shall
on the date and at the place notified under paragraph (d) of sec
fifty-two proceed to consider the
objections to the valuation roll
and to determine there-on, provided that the valuation court shall
not be precluded from considering
and determi-ning on the valuation
of any other property.
The valuation
court may make such amendments in the valuation roll in respect of
separate
individual
properties
as to the court may seem
expedient and may
confirm, increase or decrease
any valuation
whether it be objected to or not
Reference should finally be made
to sec 5(1). It reads
as follows:
" There shall be constituted
for every division one or more courts, to be known as valuation
courts, to deal with the valuation
roll, or any portion thereof,
framed for each local authori-ty area in such division, and to hear
and deter-mine on any objection
to the roll. Such courts shall have
concurrent jurisdiction."
11.
Having regard particularly to secs
5(1), 52(b) and 55 the following is clear:
A valuation court may amend the
roll in respect of individual properties.
The power to amend-
(i) exists independently from the
power to in-crease or decrease any valuation and (ii) is not
circumscribed in any manner; on the
contrary, the court may make
any
amend
-
ment
uhic
h to it m
ay seem expedient
.
The type of objection which may
be raised by a particular owner or occupier is not circumscri-bed
either; in particular it need
not relate to the amount of the
valuation.
The valuation court is
obliged
to consider and
determine on
every
objection.
Viewed asa whole these provisions
bring about
that, whatever the ground of an
objection may be, the
12. court is bound to consider and
determine on it. If it
is overruled there is, of course,
an end to the matter
but, if it be upheld, any suitable
amendment to the roll
may be made. In the event of an
objection to the amount
of the valuation only it is the
amount that will be amen-
ded; sec 55 confers the specific
power to do so. And
realising, no doubt, that an
invitation in terms of sec
52(b) may result in a variety of
other objections being
lodged, the legislature conferred
on the valuation court
an unfettered general power of
amendment which is to
be exercised according to the
demands of any particular
situation depending on the nature
of the objection in
question. That it is competent for
a court under its
general power of amendment to
remove individual proper-
ties from the roll is therefore
beyond question. This
is indeed the only way in which a
well-founded objection
to the inclusion of an individual
property can be met.
The owner of property exempted
from valuation in terms of
13.
sec 46 is eg plainly entitled to
object to its inclusion and his objection can only be met by removing
the property from the roll.
Or it may emerge that separate pieces of
land appearing on the roll have been consolidated and that the
consolidated property has
also been included in the roll. Again the
removal of the individual pieces is the only possible solution.
The judgment in
Hage
r's
case does not militate against this view. As appears from 813 B of
the judg-ment, the court did not in that case consider the
power of
amendment sufficiently wide to authorise the setting aside of the
entire roll. But there is a vast and ob-vious difference
betweên
expunging the entire roll and the deletion of individual properties
therefrom. The question of the removal of individual
properties did
not arise and was not considered. All that STEYN CJ said in in this
regard was that
14.
"(i)n termsr of the
Ordinance, the primary function of the valuation court in its
consideration of a valuation roll , is to determine
the correct
fig-ures at which properties are to be valued for muni-cipal
purposes. It is not apparent why i t should be necessary
for the
effective performance of this function, or even reasonably incidental
thereto, for a valuation court to be able itself, in
addi-tion to or
instead of a court of law, to set aside the whole valuation roll and
by the same reasoning, also individual valuations,
on account of the
meth-ods and mental processes by which the valuer has arrived at his
figures, regardless of whether or not those
figures are in fact
correct."
This passage appears at 814 B-D in
that part of the judg-
ment where the learned Chief
Justice, having found that
the Ordinance d id not expressly
empower a valuation court
in South-West Africa to set aside
the entire roll, explored
the
possibility
of implying such a power.
I
t
is interes-
ting to note that a valuation
court's function to deter-
mine the correct figures at which
properties were to be
valued was described here as its
primary
function; and
not i ts
only
function as
was said in another passage to
which reference will presently be
made. Be that as it
15. may the important words are
the concluding ones. What was being examined was the valuation
court's power to set aside the roll
- or individual valuations - "on
account of the methods and mental processes by which the valuer has
arrived at his figures,
regardless of whether or not those figures
are in fact correct". That such an implied power was found not
to exist is perfectly
understandable: if, in the case of an
individual valuation, i t be found that the valuer's methods were
incorrect the valuation cannot,and
will obviously not, slmply be
deleted for it is the valuation court's function to finally determine
the value of the property concerned.
But what if the objec-tion is
not to the valuer's figures but to the inclusion of the property in
the roll which, if well-founded,
brings about that the valuation
court cannot perform its function of determining the value? To this
question the judgment in
Hager's
case offers no answer because
it did not arise and was not considered.
16.
The only other passage in the
judgment which needs to be mentioned appears at 812 G-H and reads as
follows:
"Although a valuation court
is described as a court, it is quite clearly not a court of law with
any inherent jurisdiction which
may be associated with such a court.
It is a special body constituted for a special limi-ted purpose, viz.
to determine the values
of rateable municipal properties for the
purpo-ses of local government. That is its true and only function,
and in the performance
of that function it cannot exercise any powers
beyond those conferred by the Ordinance, either expressly or by
implication.
In regard to the relevant express
powers, it may, subject to the stated limi-tations, alter or amend
the roll as it sees fit, and
decrease or increase any valuation.
whether or not an objection has been lodged against the valuation. It
may, therefore,
mero motu
correct what it considers to be a
wrong valuation. In doing these things it may be said to set aside
the valuation of the valuer
and to substitute
17. its own valuation, but it has
not been argued,
and it cannot be argued, that in
exercising
this power, it may set aside
without any such
substitution."
(The reference to
rateable
municipal properties has no
bearing on the present matter; in
terms of sec 39(1) all
immovable property must be valued
whether rateable or not.)
The observation that the true and
only function of a valu-
ation court is to determine the
values of rateable muni-cipal properties should not be misunderstood.
As appears from the quoted passage
and from the rest of the judgment
STEYN CJ carefully distinguished between the valuation court's
function
and its
powers
. He clearly did not in-tend to
convey that its powers are limited to the deter-mination of the
values of properties reflected in
the roll.
The last sentence of the quotation
seems to re-late to the valuatlon court's powers in respect of the
amount of a valuation. If it
was intended to convey that the court's
power to amend the roll is limited to
18.
the amendment of the amount it is
not in accordance with
the provisions of the ordinance.
I
turn
now to deal
with
the second
and
third
grounds of
review which may conveniently be considered
together.
A strange and unexplained feature
of the appel-lant's case is that there is no factual basis in the
foun-ding affidavit for the contention
in the second ground of
review. Nowhere is it alleged what the true facts were or what the
valuation court regarded them to be. The
founding affidavit leaves
one entirely in the dark as to the misdirection imputed to the
valuation court. However, in view of the
manner in which appellant's
case was ar-gued in this court, the flaw'in its papers may be
over-looked.
One of third respondent's
arguments in the va-luation court and in the court a
quo
was
that the only pro-perties that may validly be included in a valuation
roll
19.
are those with a so-called Deeds
Office identity ie pro-perties which appear as separate entities in
the Deeds Office records. This
argument which was based on deci-sions
such as
Steelpark
Esta
te Co Ltd v Vereniging Town
Council
1963(2) SA 367 (T.) and
Volkstrust Bpk v Direkteur
van
Skattings en Andere
1980(1) SA 760 (C) found favour with COMRIE
AJ but not with CONRADIE J in the court a
quo
. CONRADIE J
found in third respondent's favour ba-sically on the ground that what
was reflected in the va-luation roll was the
underground
areas
thereof notional-ly detached from the surface. This, the learned
judge held, is not permissible in terms of the Ordinance.
Third respondent's case was argued
in this court mainly along the lines of CONRADIE J's judgment.
Ap-pellant's counsel countered that
CONRADIE J had miscon-strued the
relevant entries in the valuation roll since they relate, not to
underground entities, but to the
street surface and the underground
structures in each of the
20.
areas. The
valuation court construed them in the same
manner
that CONRADIE J did and this, he said, was the mis-direction
complained of in the second ground of review.
The
dispute
in this
court is thus, not about what it is
that
should be valued in a case like the pre-sent one, but about what
precisely
it
is that appears in the valuation roll.
I
say in this court because co
ú
n-sel
had different
versions
of
the
argument
advanced to the court a
quo
on
appellant's
behalf.
All
that
need be said in
this
regard is
that,had
appellant's
case
been argued in the court a
quo
on
the
same basis
on
which
it was
presented to this
court,it
is
difficult
to
understand
how it
came about that
neither
of the judges who heard the
matter
dealt
with
the
real
dispute
in
their
judgments and why both of them proceeded without enquiry on the basis
that the street surfaces had not been
valued.
Be that as it may what remains to be done now is to try and resolve
the
dispute
with
which
this
court
has been pre-
21.
sented.
I
will flrst
indicate what my understanding of the present
dispute
is.
The parties are
agreed that the valuation court
was under
the impression that the valuer had valued the un-
derground
areas separately from the
land
surface above them.
Although there is a
suggestion in the written heads of ar-gument that it was permissible
for
him
to do so
I
under-
stood
appellant's
counsel to accept in his oral argument
that
it was not. It is accordingly not necessary to de-cide how a
situation like the present one is to be hand-led for purposes of
valuation. The only question is whet-her it has been shown that the
valuation court's impres-sion of what precisely it was that the
valuer had valued was erroneous.
A full discussion of the argument
on this question would serve no useful purpose. The onus is on the
appel-lant to demonstrate the
valuation court's error and the absence
of positive averments of fact in the founding
22.
affidavit has left its counsel
clutching at straws. He referred us to the documents that were before
the valua-tion court from which
he submitted it can be inferred that
the underground areas had not been valued sepa-rately but what
"evidence" he found
there to support his submission is
entirely unconvincing. What does emerge clearly from the documents is
that third .. respondent
was firm-ly under the impression that the
entries in the valuation roll related to the undergroúnd
passages as such; that
this impression was conveyed to the valuation
court; and that it was not removed by appellant's attorney. The very
ground for the
objection was that "die betrokke'eien-dom' is
ondergrondse
ontwikkeling " which is not "'grond'
soos bedoel in die Skattingsordonansie nie". In the pro-ceedings
before the valuation
court the attorney represen-ting third
respondent filed written heads of argument in which he specifically
stated that -
"(die) Aktekantoor werk slegs
met oppervlakte-
23.
eenhede as geregistreerde
entiteite en is dit nie moontlik om
ondergrondse strata
afsonder-lik te registreer nie. Dus kan 'n ondergrond-se wandelhal
nie in die Akteskantoor geregis-treer word afsonderlik van die
oppervlakte waar-onder dit lê nie en gevolglik kan 'n
ondergrond-se wandelhal nie op die skattingslys voorkom afsonderlik
van
die oppervlakte-eenheid nie."
In addition he confronted the
valuation court with coun-
sel's opinion wherein it was
stated :
" Die
vraag is dus of 'n skatter geregtig sou
wees
om 'n tonnel (oftewel ondergrondse wandel-
hal)
onder
die
straat as sulks te skat en op die skattingslys te plaas. Na my mening
kan so
iets beslis nie gedoen word nie."
In further heads of argument third
respondent's attorney
stated
to the valuation court that it
was common
cause
that -
"(die) eiendom wat in die
drie besware geskat word is nie as registrasie-eenhede in die
Ak-tekantoor geregistreer nie want dit
is onder die oppervlakte van
onderskeidelik Plein, Kas-teel en Strandstrate gelee en as deel van
die Goue Akker kompleks."
Appellant's attorney addressed the
valuation
court on the requirement of a
so-called Deeds Office
24.
description but nowhere did he
indicate that what third
respondent's attorney had stated
to be common cause was in fact not so. Nor did he ever correct the
impression (if it needed correction)
that the properties appearing on
the roll were the underground areas only. It is be-yond comprehension
why he did not do so and why
he did not call the valuer as a witness
if the present submis-sion is correct.
The conclusion can only be that
the second and third grounds of review were not established and that
the court a
quo
rightly refused the application.
The appeal is dismissed with costs
including
the costs of two counsel.
J J F HEFER JA.
JOUBERT JA: CONCUR EKSTEEN JA:
CONCUR
Case No 641/89 /wlb IN THE SUPREME
COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between
THE MUNICIPALITY OF THE CITY OF
CAPE TOWN
Appellant
and
I
M
CAIRNS IN HIS CAPACITY AS CHAIRMAN
OF THE VALUATION COURT, CAPE
TOWN
First Respondent
TSE DIRECTOR OF VALUATIONS
Second
Respondent
GOUE AKKER (EDMS) BPK
Third
Respondent
CORAM
:
JOUBERT,
HEFER, MILNE, EKSTEEN JJA et
KRIEGLER AJA
DATE OF HEARING
: 20 May
1991
DATE OF DELIVERY
: 23 August 1991
JUDGMENT
MILNE JA:
I
have
had the privilege of reading the judgment of my Brother Hefer but,
with respect,
I
am
unable to agree with it.
The general
background to the dispute in this matter is set out in Hefer JA's
judgment and it is unnecessary to repeat it. For the
sake of clarity,
however,
I
recapitulate
briefly certain salient points. The decision which the appellant
sought to set aside on review was a decision of one
of the bodies
described in section 5(1) of
the Valuation
Ordinance, 26 of 1944 (C) ("the Ordinance") as
"valuation
courts". This is not a happy choice of words since the
"valuation court" is not a court in the legal
sense.
Be that as it may, the valuation court purported to
-2-
delete "(the) underground
areas shown as Nos 1, 2 and 3 on Map A, P.45" from the valuation
roll prepared by the valuer in
terms of section 51 of the Ordinance.
A copy of this map appears below.
See
Original Judgement Image
I understand it to be common cause
that if what appeared in the valuation roll were valuations of
-3-
underground
strata of land together with the buildings on such strata
apart
from
the value of the portiohs of the streets immediately above such
strata, it
would.be
invalid
in law. This flows from the fact that, in terms of section 45(a) read
with section 39(1) of the Ordinance, what had to be
valued was, in
this case, " land". Since " land" is not
defined
it must be taken to refer to what is meant by "land"
at
common law namely, a part of the earth's surface which also extends
downwards, notionally, to the centre of the earth.
I
also
understood it to be conceded by counsel for
the
third respondent that there was no objection to the fact
that
the valuer had valued the buildings forming part of the
underground
development. Mr Snitcher, for the appellant,
submitted
however that the valuer had not merely valued a
stratum
in the case of the three "properties". What appeared on the
valuation roll was, so he submitted, a portion of the
street surface
as a surveyed area and a site
-4-
valuation thereof, a total
building value separate from the total site value and a total site
and building value. Mr
Burger
, for the third respondent,
submitted that on the record it was clear that what the valuer had
valued was, in each case, an underground
stratum entirely separate
and distinct from the surface. There is an extraordinary lack of
clarity on this point. The relevant entries
on the valuation roll
were the following: In the case of the first property:
See
Original Judgement Image
See Original
Judgement Page
-5-
-6-
Nothing in these documents
suggests to me that the valuer did not value the street surface over
the underground structures. What the
valuer actually did could, of
course, have been easily ascertained from him but, although he was
present at the relevant sittings
of the valuation court, there is
nothing to indicate that the question was raised with him by the
members of the court or the legal
representatives of the parties. Nor
did he file an affidavit in the review proceedings. The valuation
court might have elucidated
the matter but no affidavit was filed by
any of the members of that court. When the review application was
served upon the valuation
court. "the minutes" of the two
relevant "meetings" of the vaiuation court were filed.
These minutes contain
a record, inter alia, of various submissions
made to the valuation court on behalf of the appellant and the third
respondent, but
they do not really assist in the elucidation of the
problem,
-7-
partly because
the argument was bedevilled by confusion as to what issue was before
the valuation court. A material part of the arguments
seems to have
been concerned with whether the "properties" in question
were rateable. In the Cape Province rateability
is dealt with
separately from
valuation, the former being
dealt with in Ordinance No 20 of
1974 and
the latter in Ordinance No 26 of 1944. Be that as it may,
I
agree with the view of the majority that on
the record the appellant did not establish that the valuer valued the
relevant parts of
the streets together with the
underground
structures. In para.4 of the affidavit filed on
behalf
of the third respondent it is alleged that the street
surfaces
in question did not appear on the valuation roll and that "Die
posisie kan dus opgesom word deur te s
ê
dat applikant (appellant) ondergrondse strata op die
skattingsrol
wil h
ê
hoewel die oppervlakte nie op die
-8-
skattingsrol verskyn nie." In
its replying affidavit the
only point made on behalf of the
appellant is that the
streets in question vest in the
appellant because they are
public streets.and the passage
quoted above is not dealt
with.
It follows that
it must be accepted for the purposes of this appeal that the valuer
purported to value the underground developments
separate from the
streets vertically adjacent to them. It is necessary to consider what
precisely this means in practical terms.
I
have already referred to the fact that on
the argument of the
third respondent there
was no objection to the fact that the
valuer
had valued the buildings underground. It was furthermore conceded by
Mr Burger that the area underground on which the buildings
which were
valued were situated (which
I
shall
call the "floor area") must of necessity
-9-
coincide exactly with the surface
area which it is said the valuer should have valued but did not
value. Thus, for example, it is
common cause that the floor area of
property No 2 under portion of Strand Street coincided with the
surface area of Strand Street
which it is said the valuer should have
valued. It is not, therefore, the value of the buildings which is
attacked nor the size of
the site but the fact that what was valued
was an underground area whereas what should have been valued was the
surface area. The
value of these two areas i.e. the floor area and
the surface area, might be but would not necessarily be, the same.
On this basis, the valuer arrived
at his valuation by a consideration of the value of the land and
improvements in a manner which
rendered his valuation invalid in law.
This is precisely what occurred in
Hager & Others v Windhoek
Municipal Council
1961(3) SA 806 (A).
-10-
In my judgment
(a) It was part of the ratio
decidendi in that case
that a valuation court acting in
terms of section
181(5)(b) of the Municipal
Ordinance No 3 of 1949
of South West Africa as
substituted by section 29
of Ordinance 32 of 1959 had no
power to set aside
individual valuations
"... on account of the
methods and mental processes by which the valuer has arrived at his
figures, regardless of whether or
not those figures are in fact
correct."
Per Steyn CJ at p 814 C-D.
(b) There is no material
difference between the
provisions of the Ordinance there
under
consideration and the relevant provisions of
Ordinance 26
of 1944 (C).
-11-
I
agree
that the conclusion of the court in the
Hager
case was that the
valuation court had nb power in
terms of the enabling legislation
to set aside the entire
valuation roll on the ground that
in law the valuer had not
applied his mind to the valuations
appearing therein. That
is, with respect, not the only
ratio decidendi. _ What
constitutes the ratio decidendi of
a judgment appears from
the following passage in the
judgment of Schreiner JA in
Pretoria City Council v
Levinson
1949(3) SA 305 (A) at 317:
"As
I
understand the ordinary usage in this
connection, where a single judgment is in guestion, the reasons given
in the judgment, properly
interpreted, do constitute the ratio
decidendi, orginating or following a legal rule, provided
(a) that they do not appear f rom
the
judgment itself to have been merely
subsidiary reasons for
following the
main principle or principles;
that they were not merely a
course of reasoning on the facts (cf
Tidy v Battman
(1934,
L.J.K.B. 158
at p 162)); and
(which may cover (a) ) that they
were
-12-
necessary for the decision, not in
the sense that it could not have been
reached along other lines, but in
the sense that along the lines actually followed in the judgment the
result would have been different
but for the reasons."
I
deal
firstly with what
I
understand
to be the reasons for the decision in the
Hager
case, secondly with whether they fall within the exceptions
enunciated by
Schreiner JA and thirdly,
with the guestion of whether there is any material difference between
the legislation under consideration
in the
Hager
case and that under consideration
in this
case. The question which had to be decided in the
Hager
case was "... whether, accepting the valuation court's finding
that in law the valuer did not apply his mind to the
valuations
on the roll, it was competent for that court to declare the roll
invalid on that ground." (P 811-812). The court sought
the
answer to that guestion in the Ordinance
-13-
"by and under which the
valuation court was brought into
existence". Having set out
the relevant provisions the
learned Chief Justice said, at p
812G:
"Although a valuation court
is described as a court, it is quite clearly not a court of law with
any inherent jurisdiction which
may be associated with such a court.
It is a special body constituted for a special limited purpose, viz.
to determine the values
of rateable municipal properties for the
purpose of local government. That is its true and only function, and
in the performance
of that function it cannot exercise any powers
beyond those conferred by the Ordinance, either expressly or by
implication."
I
must
confess that
I
do
not, with respect, see, in this
context, any significance in the
distinction between the
function of the statutory body and
its powers. If its only
function is to determine the
values of property it can
surely have no power to do
anything else.
The court then considered the
express powers conferred on the valuation court. It was held at p
812H
-14-
that the power to "alter or
amend the roll as it sees fit
and decrease or increase any
valuation ...". did not include
a power to set aside a valuation
without substituting its
own valuation.
I
interpose here
that the valuation court in
the instant case did not
substitute its own valuation. The
learned Chief Justice then went on
to consider the effect of
the words "proceed to
consider" with reference to the
valuation roll and the objections
lodged thereto. It is
true, as pointed out by Hefer JA,
that Steyn CJ said in this
context that he could find nothing
in those words
authorising a valuation court to
set aside the whole
valuation roll submitted to it and
to decline consideration
of the roll until another had been
prepared. That is not an
end of the reasoning, however,
because the learned Chief
Justice went on to say at p 813A
"That is not what the words
'proceed to consider' convey in this context of objections,
alterations, amendments, increases, decreases
and corrections
-15-
mero motu of valuations. What is
contemplated is a consideration of the roll
for the purpose of
coming to decisions as to the corr
é
ctness or
otherwise of the valuations on the roll
." (My
underlining) The court then considered the argument that it would be
competent for a valuation court to
find that a roll
presented to it was not a
valuation roll contemplated by the
Ordinance and expressed the view
that it might be so that
where a roll had been drawn, for
example, by a person other
than a valuer or disclosed
valuations of improvements
without any valuations of land, a
valuation court might be
entitled to say there was in fact
no valuation roll at all.
At p 813 that situation was
distinguished from the situation
where the complaint was not that
there was no valuation roll
at all or that there were no
completed valuations on the
roll "... but that the valuer
had arrived at his valuations
by consideration of the value of
land and improvements in a
manner which rendered his
valuations inyalid in law." The
-16-
court was therefore asked to rule
that roll out of existence
on the ground that the valuer had
not properly applied his
mind to his tasks.
"The
valuation court could not do so without a jurisdiction ordinarily
possessed only by a court
of law and
I
can find no evidence in the Ordinance
of
the conferment of any such power or competence."
Consideration was then given to
whether or not the power was
impliedly conferred and it was in
this regard it was said,
at p 814C,
"It is not apparent why it
should be necessary for the effective performance of this function,
or even reasonably incidental
thereto, for a valuation court to be
able itself, in addition to or instead of a court of law, to set
aside the whole valuation roll
and by the same reasoning, also
individual valuations on account of the methods and mental processes
by which the valuer has arrived
at his figures regardless of whether
or not those figures are in fact correct."
It is quite clear in my view that
the remarks of the Chief
Justice are not confined to the
setting aside of the whole
-17-
valuation roll but apply also to
the setting aside of individual valuations. It was then pointed out
that such a jurisdiction could
serve to invite a multiplicity of
enquiries which would hamper rather than assist the court in
performing its primary function and
that such indications as there
were in the Ordinance rather seemed to point the other way. The
absence of any express power, and
the fact that two of the three
members of the court may be laymen, and the absence of any provision
in regard to owners who are not
objectors, were referred to. All
these considerations apply with equal force to the legislation under
consideration in the instant
case.
In my view it was a necessary part
of the decision in the
Hager
case that the only function of a
valuation court is to determine the values of the properties in
question for the purposes of municipal
government, and that
-18-
if a valuer arrives at his
valuations either in respect of the whole roll or in respect of
individual valuations by consideration
of the land and improvements
in a manner which rendered his valuations invalid in law, that is
something which can only be set aside
by a court of law and not by
the so-called valuation court. This is subject to the qualification
already referred to namely, that
a valuation court
might
, in
certain circumstances, be able to say that there was in fact no
valuation roll or that there were no completed valuations on
the
roll. Here the valuer did value both the improvements and "land"
but the appellant did not establish that the land
which was valued,
namely "the floor area", had the same value as the surface
area.
Far from being either subsidiary
reasons or merely a course of reasoning on the facts these appear to
have been the main principles
followed in the judgment. The reasoning
-19-
referred to was therefore, in my
judgment, part of the ratio decidendi.
In any event,
even if the decision in the
Haqer
case
was not binding on this court,
I
am
satisfied that the reasoning as to the construction to be placed upon
the provisions of the South West African Ordinance is directly
applicable to the proper interpretation of
the powers of the
valuation court under
section 55 of Ordinance No 26 of 1944. The provisions of the South
West African Ordinance that were
considered
by Steyn CJ to be relevant are set out at p 812 of the judgment in
the
Hager
case.
I
am quite
unable to
find any significant difference
between those provisions and
the provisions
of section 55 of Ordinance No 26 of 1944. The provisions of sections
51 and 52(b) of the Ordinance do
not, to my
mind, take the matter any further. The powers of
the
court are surely to be ascertained from the section
-20-
which deals with such powers and
not f rom the section dealing with the.duty to call for objections.
In any event the equivalent of
section 52 in the Ordinance is
subsection (4) of section 181 of the South West African Ordinance
which required a notice be published
"setting out that the roll
is available for public inspection and for the lodging of objections
thereto" and required objections
to be in writing and to state
the grounds on which the objections were based. Thus in the South
West African Ordinance it was clear
that
1. the valuation court was
empowered to amend the
roll - the fact that it is not expressly
empowered
to amend it in respect of individual properties is
not
material since that is clearly implied;
2. the power to amend
(a) linguistically speaking,
existed independently of the power to increase or decrease any
valuation;
-21-
was not circumscribed in any
manner; on the contrary the court was empowered to make such
"alterations and amendments
as it sees fit
";
the type of objection which could
be raised was not circumscribed nor was it laid down that it had to
relate to the amount of the
valuation; and
the valuation court was obliged
on the appointed day to "proceed to consider the valuation .
roll and the objections lodged
thereto".
I
do
not think it is necessary to consider whether the owner
of
property exempted from valuation in terms of section 46 would be
entitled to object on that ground and entitled to have his objection
met by the removal of the property from the roll; nor what the
position might be where separate
-22-
pieces of land appearing in the
roll have been consolidated and the consolidated property were to be
included in the roll also. That
is not the situation here and of
course if the valuation court had no power to deal with such wrongful
inclusions that would not
be the only solution to the problem - the
person affected would be entitied to go to court to have the entry
set aside.
I
would
accordingly uphold the appeal and set aside the order of the court a
quo with appropriate orders as to costs.
A J MILNE
Judge of Appeal
KRIEGLER AJA] Concurs