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2 Some 25 years later, in 2017, the respondent, the City, which had succeeded
to the Randburg Town Council’s rights and obligations , determined that Ms.
Lampe did not have its consent to operate her business from the property. On
13 December 2017, the City issued a notice headed “UNAUTHORISED USE
OF PROPERTY”. The City informed Ms. Lampe that the property was being
used “in a manner which contravenes the Randburg Town Planning 1976
[sic]”. The contravention alleged was that Ms. Lampe was “conducting a
gymnasium (callanetics studio) without the approval of the council”.
3 Ms. Lampe sent two letters to the City in which she explained that her business
was being operated in accordance with the licence she obtained from the
Randburg Town Council in 1984. Accordingly, she said, she did have the
necessary consent to operate her business, the property was not being put to
an illegal use, and the notice should be withdrawn.
4 Those letters were ignored. In July 2019, the City increased the property rates
levied against the property. Ms. Lampe says that, from that month, her
municipal account included an additional R9400 per month in rates and taxes,
which were levied on the basis that the property was being put to an illegal
use because the City did not consent to its use as a home exercise studio. Ms
Lampe could not afford these charges, and did not pay them. She did, though,
lodge a new application with the City for consent to run her business from the
property. Nevertheless, the City continued to levy additional rates and taxes
on the basis that the property had been used illegally without its consent, and
Ms. Lampe continued to refuse to pay them.
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5 In response to Ms. Lampe’s refusal to pay the additional rates, the City
terminated her electricity supply and sued for the amounts outstanding. The
electricity disconnection was reversed by order of Vally J on 5 March 2020.
Vally J also ordered the parties to “hold a debatement regarding the penalties
charged” to Ms. Lampe within 30 days of his order. That debatement never
took place, since the City took the view that it would simply proceed with its
action to collect the rates it said were due.
6 Ms. Lampe’s new consent use application was granted in October 2020. This
seems to have triggered the withdrawal of the City’s action to collect the
outstanding rates, but the City continued to levy enhanced rates and taxes
against Ms. Lampe’s property on the basis that it was being put to an illegal
use, even though the City had itself consented to the use of the property in
October 2020. In the meantime, Ms. Lampe had to fend off further attempts to
disconnect her water and electricity supplies.
7 Ms. Lampe now applies to me for an order declaring unlawful the City’s
decision to levy enhanced property rates based on the tariff applicable to
properties being put to an illegal use. She seeks the reversal of all illegal use
charges levied against her since July 2019. She also seeks the recalculation
of her municipal account as if the levies were never charged. This relief is no
doubt meant to insulate her against value added tax and interest charged and
compounded on the monthly amounts levied since July 2019, and that
included the illegal use charges.
8 The City does not seriously oppose the relief in respect of illegal use charges
levied on or after 20 October 2020, which is the date on which the City says it
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gave its consent for the use of the property to run Ms. Lampe’s business . In
its answering affidavit, the City says that it is “attending to reverse the penalty
costs charged on and after 20 October 2020”. The answering affidavit was
deposed to on 6 September 2021. I have nothing before me that indicates that
Ms. Lampe’s account has since actually been corrected to the extent the City
concedes it should be. However, the City can suffer no prejudice from an order
that it implements such a correction. If it has already done so, then so much
the better.
9 The only real dispute before me is whether Ms. Lampe is entitled to the
reversal of the penalty charges levied between 1 July 2019 and 20 October
2020. The City says that the property was being put to an illegal use during
that time, since its consent was not obtained until 20 October 2020, and the
penalty charges it levied against the property during that time were perfectly
lawful.
10 I disagree. The City accepts that the consent the Randburg Town Council
gave for the use of the property in 1984 binds it as the Randburg Town
Council’s successor in law. The City also accepts that the Randburg Town
Council granted Ms. Lampe a licence to use the property for the purposes to
which she put it. The City also accepts that the licence was renewed annually
for ten years before being renewed indefinitely. The City stakes its opposition
to this application solely on the contention that Ms. Lampe never “applied for
consent in terms of sections 13 and 14 of the Randburg Town Planning
Scheme, 1976” (City’s answering affidavit, paragraph 18). The City’s point, as
far as I understand it, seems to be that Ms. Lampe might have had a business
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licence from the Randburg Town Council, but that did not mean that Randburg
Town Council had consented to the use of the property in terms of its Town
Planning Scheme, 1976.
11 I find that proposition far-fetched. It beggars belief that the Randburg Town
Council would have issued a business licence that authorised the illegal
operation of Ms. Lampe’s business from the property nominated in the licence.
In other words, it seems to me that the issuing of the licence necessarily
entailed the Randburg Town Council’s consent for the use of Ms. Lampe’s
property for the purpose specified in the licence. Mr. Magaqa, who appeared
for the City, made no coherent submissions to the contrary.
12 Moreover, the City’s notice of 13 December 2017 states that the contravention
of its town planning scheme was that Ms. Lampe’s business was being
operated “without the approval of the council”. The notice did not say that a
specific form of approval – for example consent under a particular statute or
planning scheme – was necessary. It said merely that there was no approval
at all. That was plainly wrong, since Ms. Lampe did have the Randburg Town
Council’s approval to operate her business from the property. That approval
bound the City when it succeeded to Randburg Town Council’s rights and
obligations. On this basis, too, the notice could not have provided the City with
the authority necessary to levy the penalties it did.
13 In its answering affidavit, the City submits that “the health department and the
department of development planning/town planning . . . are separate
institutions”. As a result, so the City says, Ms. Lampe “cannot argue that simply
because she obtained consent to trade from the health department [that]
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meant that she also obtained consent of use from the department of
development planning/town planning department” (City’s answering affidavit,
paragraphs 100 to 101).
14 Plainly, two departments in the same government entity are not “separate
institutions”. In any event, it seems to me that the City has misstated Ms.
Lampe’s case. Her case is that the enhanced charges levied against her rates
account are based on the erroneous proposition that the City has not
consented to the use of the property. We know that proposition is erroneous
because the licence she obtained constitutes clear consent to use the property
for the purpose to which she put it.
15 “Municipal officials do not act appropriately if they take insulated decisions in
respect of different duties that they are obliged to perform” (see Occupiers of
51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg 2008 (3) SA 208 (CC) (“Olivia Road”), paragraph 44). Even if
it were accepted that the City is entitled to treat Ms. Lampe’s licence as no
more than consent for health purposes and to insist that she was also required
to apply for planning permission from “some other department in the
bureaucratic maze” (Olivia Road, paragraph 44), I do not think the City would
be entitled to rely on Ms. Lampe’s failure to obtain that planning permission to
advance the proposition that it neither knew about nor consented to the use
of the property for the purpose to which Ms. Lampe has now put it for 42 years.
16 For all these reasons, the application must succeed. In her notice of motion,
Ms. Lampe seeks costs on the attorney and client scale. She is obviously
entitled to them. The City has conducted itself throughout this litigation in an
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unresponsive and high-handed manner. It failed seriously to oppose the bulk
of Ms. Lampe’s claim. In the end, it pursued a far-fetched justification of one
portion of the penalties it has imposed. Had the City engaged reasonably and
sensibly with Ms. Lampe from the outset, this application would never have
been necessary.
17 Accordingly –
17.1 It is declared that the respondent’s conduct in levying property rates
on the applicant’s property based on the tariff applicable to properties
put to an illegal use is unlawful.
17.2 The respondent is directed to reverse all charges against the
applicant’s municipal account number 401940788 which were levied
since 1 July 2019 on the basis that the applicant’s property is being
put to an illegal use
17.3 The respondent is interdicted and restrained from continuing to levy
property rates against the applicant’s municipal account number
401940788 on the basis that the applicant’s property is being put to
an illegal use.
17.4 The respondent must, within 30 days of the date of this order, furnish
the applicant with a municipal account recalculated on the basis of
the orders in paragraphs 17.2 and 17.3 above.
17.5 The respondent is interdicted and restrained from terminating any
services to the applicant’s property on the basis of non-payment of