THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
R E P O R T A B L E
Case number: 168/2003
In the matter between:
MSUNDUZI MUNICIPALITY APPELLANT
and
MEMBER OF THE EXECUTIVE
COUNCIL OF KWAZULU-NATAL
PROVINCE FOR HOUSING FIRST RESPONDENT
REGISTRAR OF DEEDS KWAZULU-
NATAL SE COND RESPONDENT
CORAM: MPATI DP, ZULMAN, BRAND, HEHER JJA and
JONES AJA
HEARD: 5 MARCH 2004
DELIVERED: 23 MARCH 2004
Summary: Section 3(3)(a) of Act 79 of 1984 – exemption from municipal rates –
State property held in trust – meaning of – whether first respondent succeeded the
South African Development Trust as trustee in respect of property concerned and is
thus exempted from rates.
________________________________
JUDGMENT
_________________________________
BRAND JA/
2
BRAND JA :
[1] The Premier of the KwaZulu-Natal Province is the registered owner
of an immovable property situated within the municipal jurisdiction of the
appellant (the 'Municipality'). The first respondent ('the MEC') is
responsible for the admi nistration of the property, and, more particularly,
for its development to provide hous ing for low-income residents of the
Province. This appeal has its origin in a contention by the MEC that the
property is exempt from rates levied by the Municipality by virtue of the
provisions of s 3(3)(a) of the Rati ng of State Property Act 79 of 1984.
The Municipality did not ag ree with this contenti on. Consequently, the
MEC brought an application in the Nata l Provincial Division for an order
effectively declaring that his contention be upheld. He cited the
Municipality as a respondent in the application together with the
Registrar of Deeds, KwaZ ulu-Natal, who is the se cond respondent in
these proceedings . Though the Registrar of Deeds did not oppose the
application, the Municipality did. Notwithstanding such opposition the
court a quo (Pillay J) granted the declarato ry order sought. His judgment
has since been reported as MEC for KwaZulu-Nata l Province for
Housing v Msunduzi Municipality [2003] 1 All SA 580 (N). The
Municipality's appeal against that j udgment is with the leave of the Court
3
a quo.
[2] The Rating of State Property Act commenced on 1 July 1988. It
repealed various laws which formerly exempte d State property from
rates levied by local authorities. A ccordingly, s 3(1) declares all State
property susceptible to such rating (s ubject to the discou nts provided for
in terms of s 4), unless specifically exempted by minister ial notice in the
Government Gazette. To this general declaration of rateability various
exceptions are created in terms of s 3(3). The exception relied upon by
the MEC is the one provided for in subsec 3(a). It reads:
'(3) No rates shall by virtue of subsection (1) or otherwise be levied by a local
authority on the value of State property – (a) held by the State in trust for the
inhabitants of the area of jurisdiction of a local authority or a local authority to be
established.'
[3] The property under consideration is undoubtedly 'State property' as
defined in the Act. As to why it is 'held in trust', as envisaged by s 3(3)(a),
the MEC's contentions were, broadly stated, as follows:
(a) the property was formerly held in trust by th e South African
Development Trust ('the SADT'), which was established in terms of s 4 of
the Development Trust an d Land Act 18 of 1936 ('the 1936 Act'), for the
benefit of the Black people of South Africa;
4
(b) although the SADT has sinc e been abolished in terms of the
Abolition of Racially Based Land Measures Act 108 of 1991 ('the
Abolition Act'), there is nothing in th e Abolition Act or in the various
legislative enactments following upon the de mise of the SADT which
caused the property to change its status as trust property;
(c) that, consequently, he succeeded the SADT as trustee in respect
of the property, and he is giving effect to that trusteeship by developing
the property to provide housi ng for the homeless and the poor
inhabitants of the area, wh o are, essentially, the sa me beneficiaries as
those envisaged by the 1936 Act.
[4] The Municipality, on the other hand, though conceding that the
property was formerly held in trust by the SADT, denied that the notion of
trusteeship survived the abolition of the SADT and, consequently, that
the property can be regarded as being held in trust within the meaning of
subsec 3(3)(a) of the Rating of State Property Act.
[5] The court a quo preferred the MEC's co ntentions to those
advanced by the Municipality. The ev aluation of that preference requires
an examination of the somewhat intricate evolve ment of transitional
legislation, affecting the property, since 1992, when the SADT was
5
abolished, until 1999, when the property ev entually came to be
registered in the name of the Premier of the KwaZulu-Natal Province and
also became incorporated into the valuation roll of the Municipality.
[6] Until 1992 the proper ty was registered in the name of the SADT, by
virtue of s 6 of the 1936 Act, to be ad ministered, in terms of s 4(2) of that
Act, 'for the settlement, support, benefit and ma terial and mo ral welfare
of the Black people of the Republic', as defin ed with reference to the
Population Registration Act 30 of 1950 . In terms of s 18 , all land vested
in the SADT was held for the exclusive use and benefit of Blacks. It could
only be sold or let to Black people. If the SADT wished to dispose of the
land to someone who belonged to a nother racial group , it required
consent to the transaction by both H ouses of Parliament. While the
property was registered in the name of the SADT, it did not fall within the
area of any municipality. Instead, it was administered in accordance with
the provisions of Proclamation R 163 of 1974 ('the 1974 Proclamation')
which was issued by the th en State President in terms of s 30(6) of the
Black Administration Act 38 of 1927. The latter Act was, like the 1936 Act
and the Popula tion Registration Act, on e of the mainstays of the
apartheid structure. It entitled the Governor-General and, subsequently,
his successor, the State President, to es tablish what were referred to as
6
'black towns'. The 1974 Proclamati on essentially provided for the
administration of the area in wh ich the property is situated through a
system of managers and superintendents. Pertinent for present purposes
is para 40 of the 1974 Proclamation. It confer red the power on the
Minister of Bantu Admini stration and Developm ent, as surrogate local
authority, to impose rates and taxes on property owners in the area, with
the proviso in para 40(7)(a) that 'lan d which belongs to the Trust, the
State and the South Afri can Railways' would be exempted from such
rates and taxes. Accordin g to the definition sect ion of the Proclamation
the term 'Trust' referred to the SADT.
[7] I now turn to the prov isions of the Abolition Act which eventually led
to the repeal of the 1936 Act and the termination of the SADT as an
institution. In accordance with the pr eamble of the Abolition Act, its
stated objects were, inter alia:
'to repeal … certain laws so as to abolish certain restrictions based on race or
membership of a specific population group on the acquisition and utilization of rights
to land',
and
'to provide for the … phasing out of certain racially based institutions and statutory
and regulatory systems'.
7
Not surprisingly, the 'institution' and the 'measures' created under the
Black Administration Act and by the 1936 Act were amo ng the very first
earmarked to be dismantled in terms of th e Abolition Act. Parliament
obviously realised, however, that th e dismantling proc ess would take
some time. Consequently, s 12(1) made it possi ble for the repeal of
certain sections of the 1936 Ac t to take effect on different dates
determined by the State President by way of proclamation in the
Government Gazette. Sect ion 12(2) specifically provided that the State
President could, in order to bring about the phasing ou t of the SADT, by
proclamation in the Government Gazette –
'(a) transfer any assets (including land) or right acquired and any liability or
obligation incurred by the Trust to an Administrator, a Minister or the State … and the
Administrator, Minister or State shall after such transfer be deemed to have acquired
the asset or right or to have incurred the liability or obligation'.
According to s 12(3):
'Any transfer or assignment referred to in subsection (2) shall be subject to any term,
condition, restriction or direction of the St ate President as specified in the relevant
proclamation.'
[8] In accordance with Parliament 's contemplation in s 12 of the
Abolition Act, the State President issued three pr oclamations,
Proclamation R26, R27 and R2 8 of 1992, that we re published
8
simultaneously in the Gove rnment Gazette of 31 March 1992, all with
effect from 1 April 1992 . In terms of para 2 of Proclamation R28, the
State President repealed all the secti ons of the 1936 Act that were still in
force, including ss 4 and 18. In para 1(e) of the same proclamation he
transferred the property under consider ation to the Minis ter of Regional
and Land Affairs, on the stated condition that it would be held by him
'subject to any existing right, charge or obligation on or over such land'.
Para 1(h)(ii) expr essly provided that 'land … transferred in terms of the
provisions of this Proc lamation … shall be deem ed to vest in the State
and to be State property…'.
[9] The 1974 Proclamation was not repealed in 1992. On the contrary,
Proclamation R26 (schedule 1 part 3 para 2) de signated the then
Administrator of Natal as the authority responsible to administer the area
which included the property concerned, in accordance with the
provisions of the 1974 Proclamation. At the same time, Proclamation
R26 (schedule 3 para E) provided for the amendment of the 1974
Proclamation in certain respects. Of relevance for pr esent purposes are
the amendments (in paras E1 and E5) which brought ab out the deletion,
firstly, of the definition of the term 'T rust' in para 1 and, secondly, of the
reference to 'the Trust' in para 40(7 ) of the 1974 Proclamation. It will be
9
remembered that para 1 of the 1974 Proclamation defined the term
'Trust' as a reference to the SADT while para 40(7) rendered both 'State
property' and 'Trust property ', ie SADT pro perty, free from any rates and
taxes imposed by the Minister of Bantu Administration and Development,
as surrogate local authority. The re ason for the amendment occasioned
by para E of Proclamati on R26 is fairly clear. Si nce Proclamation R28,
which was published in the same issue of the Government Gazette,
announced the final demise of t he SADT, any refere nce to property
'which belongs to the SADT' would no longer have any meaning. As far
as the exemption from rates and taxes was co ncerned, the amendment
was, however, purely cosmetic. The amended para 40(7) still rendered
'property which belongs to the State' free from rates and taxes imposed
by the Administrator of N atal as the new surrogate local authority. Since
all properties formerly held by the SADT now became St ate property, by
virtue of Proclamation R28, they still enjoyed th e same immunity from
rates and taxes, but now in the different category of State property.
[10] The 1974 Proclama tion, as amended, was ev entually repealed in
terms of s 15(4)(a) of the Local Government Tr ansition Act 209 of 1993.
Proclamation LG73 of 1995, issued under th at Act, determined that the
property under considerati on was to be incorporate d into the area of the
10
Pietermaritzburg-Msunduzi Transitional Local Council, which was the
predecessor of the Municipality. In th e interim, liability for rates was
governed by para 12(3) of Proclama tion LG 73 of 1995 which provided
that:
'The systems of rating in operation within the area of jurisdiction of the Transitional
Council at the date of effect of this Proclamation [ie 10 February 1995], including any
existing valuations of immovable property and any exemptions from rates, shall …
continue in operation in such areas unt il such systems and valuations have been
replaced by a system of rating and a valuat ion roll adopted and prepared for the area
of the Transitional Council as a whole.'
It appears to be common cause that, since no 's ystem of rating' was in
operation in respect of the property concerned on 10 February 1995, its
immunity from rates was extended, by virtue of the transitional provisions
in para 12(3), until 1 Ju ly 1999, when it came to be incorporated into the
valuation roll of the Municipality. Whether the property continues to enjoy
that immunity subsequent to 1 July 1999, is who lly dependent on the
validity of the MEC's contention that it should be regarded as being 'held
in trust' within the meaning of s 3(3)(a) of the Rating of State Property
Act. If the contention is invalid, the property is susceptible to rates
imposed by the Municipality.
11
[11] Before considering tha t crucial issue, it is ne cessary first to revert
to the facts. As stated in para 7 above, owne rship of the property
concerned was tran sferred from the SADT to th e Minister of Regional
and Land Affairs in terms of para 1(e) of Procla mation R28. It appears,
however, that the Minist er did not manage the property through his own
department. In 1994 and in 1997, he issued two General Powers of
Attorney designating, first, the then Natal Provincial Administration and,
subsequently, the Department of Housing of t he KwaZulu-Natal
Provincial Government under the co ntrol of the MEC, as the authority
responsible for the management and development of the property. Since
the General Power of Attorney issu ed in 1997 appear s, for present
purposes, to have super seded the earlier one, I w ill, for the sake of
convenience, refer to the 1997 document as 'the General Power of
Attorney'. In terms of the General Power of Attorney the delegation of
authority to the Department of th e MEC was made subject to the
condition that the property be developed, primarily, for housing projects
which would benefit the homeless residents of the province.
[12] According to the ME C's founding affidavit, the property is utilised in
accordance with the condition imposed by the Minister in the General
Power of Attorney. At present, so the MEC explained, there is a
12
substantial backlog for low-income housing in the KwaZulu-Natal
Province. The total number of housin g units that will become available
through the housing proj ects on the property, is approximately 8 000
which will accommodate approximately 32 000 beneficiaries.
[13] The reason why the property was transferred to the Premier of the
KwaZulu-Natal Province in 1999, so the MEC explained, was to facilitate
the registration of developed erve n on the property in the names of
formerly homeless people for whose benefit the development was taking
place. However, the MEC stated, if th e Municipality was entitled to the
substantial rates levied on the prop erty, continuation of the current
housing projects would not be feasible. Moreover, he proceeded, it would
also be impossible to transfer the individual housing units to the
beneficiaries, since the applicable pr ovincial legislation requires a
certificate to the effect that municipal rates had been paid before any
transfer can be effected.
[14] In the answering affi davits filed on behalf of th e Municipality, it was
denied that the whole of the proper ty will be utili sed for housing
purposes. Some parts of the property, so it wa s stated, will be used by
the State for other purpose s such as schools and public buildings while
13
other parts will be utilised for commercial and communi ty facilities. In an
attempt to meet this objection, the MEC amended his notice of motion by
excluding 'components of the property used by an organ of State for any
purpose other than housing' from th e ambit of the declaratory order
sought. In the event, the exclusion brought about by the amendment was
incorporated as a proviso to the declaratory orde r granted by the court a
quo.
[15] From the judgment of the court a quo, it appears that its decision in
favour of the MEC is substantially based on the following five
propositions. (For the sake of conv enience, the releva nt pages of the
court's reported judgment are referred to in parenthesis):
(a) The stated objective of the 1936 Act (whateve r its underlying
motive and political philosophy may have been) was that the land be
held by the SADT in trust and 'admin istered for the settlement, support,
benefit and material an d moral welfare of the Bl acks of the Republic' (s
4(2)). The intention of the legislature in abolis hing the SADT was to do
away with a racially based institutio n and not to deprive the beneficiaries
of the trust of existing rights which had accrue d to them under the 1936
Act. Consequently, the ME C, as the successor to the SADT, is holding
the land in trust for the inhabitants of the area (590g-591g).
14
(b) In terms of para 1(e) of Procla mation R28 of 1992 the property was
transferred by the State President to the successo r in title of the SADT
'subject to any existing ri ghts, charge or obligation' . While the use of the
words 'charge or obligati on' evinces the intention that the successor in
title should continue to hold the proper ty in trust, the re ference to 'rights'
must be understood to perpetuate the exemption from payment of rates
enjoyed by the SADT (591g-592b).
(c) Further support for the conclusion that the be neficiaries under the
trust created by the 1936 Act did not lo se their rights when that Act was
repealed, is to be found in the provisions of s 12(2)(c) of the
Interpretation Act 33 of 1957 (592b-c).
(d) The General Power of Attorney issued by th e Minister of Regional
and Land Affairs, despite not creating a trust in it self, carried through the
obligations of the SADT to administer the propert y 'for the settlement,
support, benefit and material and moral welfare' of the inha bitants of the
area (592b-d).
(e) In so far as there is ambiguit y and uncertainty about the meaning
of s 3(3)(a) of th e Rating of State Property, such ambiguity can be
resolved by invoking the provisions of ss 26, 39(2) and 229 of the
Constitution of the Republic of South Africa, Act 108 of 1996. A proper
15
consideration of these provisions al so favours the c onclusion that the
property under consid eration is being 'held in trust ' as envisaged by s
3(3)(a) (592d-594b).
[16] I shall consider each of these five propositions in turn. The first
proposition (referred to under (a) in para 15 above) departs from the
premise that the SADT as an institution can be di vorced from the regime
of trusteeship in which it played the role of trustee. Though both the
institution and the regime were racially based, so the reasoning goes, the
legislature must be understood to ha ve intended in 1991, when it
adopted the Abolition Act, that, in spite of the fact that the institution was
to be abolished, the regime must rema in. I cannot agree wi th this line of
reasoning. The regime was as racial ly based as the institution and
common sense dictates that the legislature's intention must have been to
do away with both. In so far as this common se nse approach needs any
reinforcement, it is provided by the preamble to the A bolition Act which
declares its central objective to be, not only the abolition of racially based
institutions, but also of racially base d 'statutory and r egulatory systems'.
Confirmation that the trusteeshi p regime could not survive the
transformation to the non-racist syst em contemplated by the Abolition
Act, is that both the court a quo in its judgment and counsel for the MEC
16
in argument in this court were compelled to tr anspose the benefits of the
trust from the racist concept of 'Black peopl e' to the non-racist
'inhabitants of the area'. The conclu sion is therefore unavoidable that the
trust could only surv ive the abolition of the 1936 Act if both the trustee
and the beneficiaries of t he trust had been replac ed by different people.
Moreover, the very terms and conditions which go verned the trusteeship
of the SADT were embodie d in those sections of the 1936 Act, such as
s 18, that were finally abolished by Pr oclamation R28. It follows that any
'trust' which survived the abolition of the SADT cannot be one governed
by the extinct provisions of the 1936 Ac t. It must be a di fferent trust with
a different trustee, di fferent beneficiaries an d different governing
provisions. The whole tenor of the court a quo's reasoning, that the MEC
succeeded the SADT as trustee of essentially the same trust, is therefore
untenable. That much was conceded by counsel for the MEC during
argument in this court.
[17] The concession on behalf of the MEC that t he 'trust' which forms
the keystone of his case must be a new trust, immediately gave rise to
the question as to when and how this new trust came into existence,
particularly since there is no reference to a 'trust' in any of the transitional
enactments which fol lowed upon the abolition of the SADT. To this
17
question counsel for the MEC could give no defens ible answer and I am
also unable to think of on e. Furthermore, since the governing provisions
of the SADT had been repea led, the question arises: what are the
governing provisions of this new tr ust? In short, what is the MEC as
trustee allowed to do with the trust propert y? On the MEC's papers, the
answer to this question, whic h found favour with the court a quo, is that
the MEC is bound by the terms of the trust to utilise the property for the
provision of housin g for the homeless and th e poor. The problem with
this answer is that, as a fact, some parts of the pr operty are utilised for
other purposes which al so happen to be for the benefit of the same
people, but not for housing. It will be remembered that these parts of the
property were excluded from the ambit of the court a quo's order. This
exclusion entails the suggestion, ho wever, that those parts of the
property are no longer held in trus t and, consequently that a part of the
property can change its trust charac ter depending on the purpose for
which it is utilised. The result woul d also be that, in so far as the MEC
has allowed parts of the property to be utilised for other purposes, he has
acted in breach of the co nditions of the trust. Since th ese suggestions
are clearly indefensible, counsel for the MEC was bound to concede that
the distinction drawn between those parts of the property utilised for
18
housing purposes and those which are not, cannot be sustained. As a
consequence, his further submission was that the MEC is enjoined by
the terms of the trust to utilise the pr operty, not only fo r housing, but for
the benefit of the peopl e in the area. I think it can be accepted as a
statement of general validity that the MEC is obliged to utilise the
property for that purpose. This does not justify the conc lusion, however,
that such obligation was imposed upon the MEC by the provisions of any
trust. It is a governme ntal obligation which st ems from the relationship
between government and its subjects and not from the fiduciary duties of
a trustee (see eg Kinloch v Secretary of S tate for India in Council (1882)
7 App Cas 619 (HL); Tito & others v Waddell a nd others (No 2) Tito and
others v Attorney General [1977] 2 All ER 129 (Ch D) 237). If State
property is to be regarded as being held in trust within the meaning of s
3(3)(a) of the Rating of State Property Act solely because the
responsible functionary of State is obliged to utilis e the property for the
benefit of the public, ve ry few State properties will fall outside the ambit
of the section.
[18] This brings me to the second proposition (referred to u nder (b) in
para 15 above), which relies on the conditio n imposed by the State
President in para 1(e) of Proclamation R28, that the transfer of the
19
property from the SADT to the Minister of Regional and Land Affairs was
'subject to any existing ri ght, charge or obligation on or over such land'.
What is significant in my view, is that the State Pr esident did not
expressly provide for the continuation of the trust, particularly, since such
a provision would not be an unfamilia r one. It had been used by the
legislature on previous occasions. So, for example, ss 13(1)(b) and 36(3)
of the Self-Governing Territories Constitution Act 21 of 1971 rendered
the transfer of property contemplated in that Act 'subject to any existing
charge, obligation or trust on or over such proper ty' (my emphasis). (Cf
President of the Republic of Boph uthatswana and another v Millsell
Chrome Mines (Pty ) Ltd and others 1996 (3) SA 831 (B ).) As I have
indicated, the court a quo found that, notwithstanding the absence of any
express reference to 'tru st' in para 1(e), the expression 'charge and
obligation' is wide enough to incl ude the obligations of the SADT as
trustee. In support of that finding, counsel for the MEC devoted a
substantial part of his argument in this court to the various possible
meanings which the expression 'charge or obligation' could entail. I find it
unnecessary, however, to embark upon the same in vestigation. For
present purposes it is, in my view, sufficient to say that I do not agree
with the court a quo's finding that the reference to a 'charge or obligation
20
over the land' was meant to include the SA DT's obligations as trustee. It
should be borne in mind t hat the SADT's obligati ons as trustee were
imposed upon it by those provisio ns of the 1936 Act that were expressly
repealed in para 2 of Proclamation R28. An argument which leads to the
conclusion that the State President mu st have intended to reintroduce
those very same obligati ons that he had just rep ealed by implication and
through the backdoor of pa ra 1(e) can, in my vi ew, not be sustained.
Furthermore, as I have indicated, the SADT's obligations as trustee were
of the very racially based kind that the legislature sought to abolish in
terms of the Abolition Act.
[19] The further argument whic h found favour with the court a quo, was
that the 'rights' preserved in para 1( e) of Proclamation R28, must have
included the SADT's immunity from rates and taxes. This argument
bears no relation to the facts. Immediately prior to Proclamation R28 the
SADT enjoyed its immunity from rates by virtue of para 40(7) of the 1974
Proclamation. Though pa ra 40(7) was amended by Proclamation R26,
the Minister who succeeded the SADT as owner of the property
continued to enjoy the same immunity, because the property became
State land which remained exemp ted from rates despite the amendment
to para 40(7) of the 1 974 Proclamation. There was therefore no need for
21
the State President to pe rpetuate the immunity from rates previously
enjoyed by the SADT by means of an obscure reference to 'rights' in
para 1(e) of Proclamation R28.
[20] As to the thir d proposition (refe rred to under (c) in para 15 above)
which relies on the General Power of Attorney issued by the Minister, it
was recognised by the court a quo that the General Po wer of Attorney in
itself does not provide, ei ther expressly or by imp lication, for the creation
of a trust. The true import of the propositio n under consideration is
therefore that, because the General Power of Attorney enjoined the MEC
to utilise the property to provide housing for homele ss people, it
confirmed the terms and conditions of the trusteeship which the MEC
inherited from the SADT . The answer to this pr oposition, which flows
from what has already b een said, is that since the MEC did not inherit
any trusteeship from the SADT, the obligations im posed by the General
Power of Attorney do not support the inference of any trusteeship at all.
[21] The fourth propositio n (referred to under (d) in para 15 above) is
reliant on s 12(2)(c) of the Interpretation Act 33 of 1957 which provides
that:
'12(2) Where a law repeals any other law, then unless the contrary intention appears,
22
the repeal shall not:
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under
any law so repealed'.
The answer to the proposition that this section is supportive of the MEC's
case is that the operative part of the sectio n is based on the supposition
that the contrary intention does not appear from the repealing legislation.
Once it is recognised that the legislat ure's intention, in promulgating the
Abolition Act, must have been that th e trusteeship of the SADT, together
with the rights and obligations associated with that trusteeship, would not
survive the repeal of the 1936 Act, it becomes apparent that s 12(2)(c) of
the Interpretation Act is of no assistance at all.
[22] The final propositi on (referred to under (e) in para 15 above)
presupposes that the disput e between the parties has its origin in some
ambiguity or uncertainty in the provisions of s 3(3)(a) of the Rating of
State Property Act. I do not believe that this is so . The question whether
the property concerned can be said to be held 'in trust' as contemplated
by s 3(3)(a), does not result from any ambiguity in the section itself. It
arises from conflicting contentions regarding the effe ct of the various
transitional enactm ents concerned. However, be that as it may, the
essence of the propositio n under consideration is that such ambiguity
23
can be resolved by reference to ss 26, 39(2) and 229 of the Constitution.
[23] Section 39(2) enjoins the court, 'when interpreting any legislation
… [to] promote the spirit , purport and objects of the Bill of Rights'.
However, the only provisions of the Bill of Rights put forward for possible
assistance, were those contained in s 26. In terms of s 26(1), 'everyone
has the right to have access to adequate housing', while s 26(2) provides
that 'the State must take reasonable legislative and other measures,
within its available resources, to ac hieve the progressive realisation of
this right'. The re asoning based on these provis ions seems to be that,
since the property is developed for lo w-income housing, it should be
exempted from municipal rates. Howe ver, for the reas ons that I have
already stated, the suggestion that those part s of the propert y which are
utilised for housing purpos es are held in trust while the rest of the
property is not, cannot be sustained. It follows that the question whether
the property should be regarded as being 'hel d in trust' within the
meaning of s 3(3)(a) of the Rating of State Prop erty Act cannot be
dependent on the purpose fo r which it is being used. Once this is
appreciated, it become s apparent that the prov isions of s 26 do not
assist.
24
[24] Lastly, the court a quo found assistance in s 229 of the
Constitution, which provi des, inter alia, that 'the power of a municipality
to impose rates on proper ty … may not be exercised in a way that
materially and unreasonably prejudic es national mob ility of goods,
services or labour'. Since the issue in this matter do es not relate to the
way in which the Municipa lity exercised its power to levy rates, but to
whether it had the power to levy such rates at all, it is not clear what
assistance can be derived from s 229. In so far as it is determinable from
the court a quo's judgment (at 593-594b) its reasoning seems to be that,
because the development of low-income housing is a national goal and
priority, the MEC should not be prejudic ed in his efforts to give effect to
this priority by compelling him to pay rates on the property.
[25] However, the function to decide whether the exemption of the
property from rates will be in conflict with national priority is one which
falls outside the province of the cour t. The court's function is to give
meaning to s 3(3)(a) of the Rating of State Proper ty Act. If that meaning
is considered by the exec utive to be in conflict wi th national priority, the
property can be exempted from rates by public ation of a ministerial
notice to that effect provided for in s 3(1) of the Act. This result cannot be
attained through implying a trust where none exists.
25
[26] It remains to be noted, with regard to the matter of costs, that while
the Municipality was represent ed by two counsel in the court a quo, only
one counsel was instructed to appear on its behalf in this court.
[27] In the result:
(a) The appeal is upheld with costs.
(b) The order of the court a quo is set aside and replaced with an
order in the following terms:
'The application is dismisse d with costs in cluding the costs
occasioned by the employment of two counsel.'
………………
F D J BRAND
JUDGE OF APPEAL
Concur
:
MPATI DP
ZULMAN JA
HEHER JA
JONES AJA