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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2025-086196
In the matter between:
NEW SUPERMAN ASSET COMPANY (PTY) LTD First Applicant
CE CAPE TOWN NORTH NPC Second Applicant
and
THE CITY OF CAPE TOWN Respondent
Coram: ERASMUS J et JONKER AJ
Heard: 5 September 2025
Delivered: Electronically on 8 October 2025
JUDGMENT
JONKER AJ:
Introduction
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[1] This is an application which was launched on an urgent basis. In part A of the
notice of motion, the applicants sought interim interdictory relief restraining the
respondent (“the City”) from disconnecting water and electricity to erf 4[ …] (“the
property”), pending the adjudication of the part B relief. By agreement between the
parties, part A relief was granted.
[2] In part B, the applicants initially sought:
[2.1] a declaratory order stating that the property qualifies as property owned
by a religious community and used for a specified religious purpose in terms
of section 17(1)(i) of the Municipal Property Rates Act 6 of 2004 (“the MPRA”);
[2.2] a declaratory order that the City’s conduct in classifying the property,
particularly into a rating category that attracts municipal rates, is unlawful,
irrational and procedurally unfair in contravention of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”);
[2.3] a mandamus directing the City to credit the municipal account with all
amounts imposed on the property, which is payable by rates and taxes
together with interest; and
[2.4] costs on scale C.
[3] The City filed its answering affidavit and the applicants its reply. Heads of
argument were exchanged on the issues as ventilated on the pleadings and practice
notes were filed.
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[4] However, when the matter came before us, on the morning of the hearing,
counsel for the applicants informed the Court that they no longer pursued the
declaratory relief in terms of section 17(1)(i) of the MPRA. However , they persisted
with prayers (ii) and (iii), along with costs.
Background
[5] The first applicant is the owner of erf 4[ …], Bellville as well as the adjacent erf
4[…]. It is a duly registered private company in accordance with the company laws of
South Africa, and functions as an asset holding company. Its sole shareholder is the
New Superman Trust (IT002126/2017(C)). The first applicant has concluded a lease
agreement with the second applicant, a non- profit company and religious
organisation, which enjoys full use of the property as a place of worship.
[6] The City is a municipality that has constitutional and statutory authority to levy
rates on property in terms of section 229 of the Constitution of the Republic of South
Africa, 1996 (“the Constitution”), the MPRA and its annually adopted rates policy. The
City is obligated, in terms of the MPRA, to levy rates on all rateable property , but it
has power , under section 15 of the MPRA, to grant exemptions, rebates or
reductions.
[7] For a period of one year (2019/2020), the City exempted “place of public
worship” properties, resulting in a zero-rated rate. With effect from 1 July 2020, this
exemption regime was revised , primarily because many properties eligible for
exemption were not in fact owned by religious communities.
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[8] From 1 July 2023, property used for public worship could be classified into
two categories: (i) property held by a religious community and used for religious
purposes, and (ii) property classified under a miscellaneous category. Section
17(1)(i) of the MPRA provides a permissible exemption from rates relating to
property owned by a religious community and used exclusively as a place of public
worship.
[9] The City had found in 2023, that the property in question was not owned by a
religious community. Accordingly, section 17(1)(i) did not apply and during the
2023/2024 financial year the property was recategorised as miscellaneous. This left
the first applicant, as owner, responsible for rates.
[10] However, despite the recategori sation in 2023, the property was incorrectly
classified as “specified religious” and no rates were billed for February to October
2023. This error was discovered during the 2023/2024 year, whereupon the property
was correctly recategorised and rates billed.
[11] The first applicant received its new municipal account in March 2025 reflecting
liability for rates in the correct category. This led to correspondence with the
municipality, escalation through attorneys, and the launching of this application in
May 2025, following a notice of intention to disconnect services for non- payment of
the municipal account.
The Applicants’ Case
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[12] As stated above, on the day of the hearing of the matter , the applicants
elected to base their case solely on alleged non- compliance by the City with section
49 of the MPRA, read with section 115 of the Local Government: Municipal Systems
Act 32 of 2000 (“the Systems Act”). Their case was that they did not receive proper
notice of the general valuation notice in respect of the property. They argued that
neither did they receive notice of the City’s intention to change the classification of
the property, nor any explanation or reasons for the proposed decision, and that they
were given no reasonable opportunity to make representations prior to the
implementation of the decision. This, they contended, rendered the decision
procedurally unfair, unlawful and reviewable under PAJA.
[13] The applicants argued in its replying affidavit that in light of the City’s
institutional resources, its statutory record- keeping obligations, and the grave
consequences of these notices, the lack of evidence of dispatch, delivery
confirmations, or contemporaneous file records strongly indicated that no notices
were sent. They contended that the City bore the duty to disclose its internal records
and documentation in order to prove compliance with the law, and its failure to do so
meant that the City had failed to discharge its burden of proving that it complied with
the mandatory requirements established in section 49. They claimed that the mere
say-so of the City’s deponent was inadequate; the City failed to discharge the burden
of proving compliance with the mandatory requirements under the MPRA.
[14] The applicants further reasoned that even if Ms Janine Bradfield ("Ms
Bradfield”), who held a dual representative capacity , as a representative of the
second applicant in her capacity as pastor, and simultaneously the authorised agent
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of the first applicant for all municipal communications, including billing and
correspondence, had received notice, such service did not amount to service on the
owner of the property as required by section 49 of the MPRA. Furthermore, they
relied on section 99 of the MPRA to submit that the absence of proper notification
rendered the classification unlawful.
[15] The applicants’ arguments were also amplified in their supplementary heads
of argument. Non -compliance with section 49 was not pleaded as a ground of
review, but only the non- compliance with section 3(2)(b)(i) -(v) of PAJA due to the
City failing to show that the notices were sent and had in fact been received by the
owner, the applicants.
The City’s Case
[16] In the City’s opposition to the application, it emphasised that the case pleaded
in the founding affidavit concerned the exemption under section 17(1)(i) of the
MPRA, not an alleged failure to comply with section 49. It argued that the applicants
impermissibly sought to introduce a new cause of action in their supplementary
heads of argument.
[17] Furthermore, records held by the City showed that notice of the valuation was
dispatched to Ms Janine Bradfield. The first applicant had specifically nominated Ms
Bradfield's email address as its designated contact for municipal notices, as
evidenced by the consistent use of this address for all municipal account
communications and the absence of any alternative contact details provided by the
first applicant to the City.
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[18] The City relied on evidence that Ms Bradfield made use of this email address
in her official capacity on behalf of the second applicant. Numerous communications
were exchanged between Ms Bradfield and the City from the very same email
address. The second applicant also received its monthly municipal invoices through
this address. On this basis, the City argued that the applicants were indeed notified
of the valuation and classification, and that it is disingenuous to suggest otherwise.
[19] The City disputed that it bore the burden of proving dispatch by way of formal
proof of delivery, contending instead that once its evidence established that
publication and dispatch occurred, the evidentiary burden shifted to the applicants to
show that they had not been notified. It submitted that the applicants failed to do so.
No mention was made that the email address was not valid or incorrect.
[20] The City further submitted that, to the extent that a factual dispute existed as
to whether notice was given, the Plascon-Evans
1 principle applied. On this approach,
the City’s version, that publication and notice by email did occur, must be accepted.
The issues
[21] There are two main issues for determination:
(i) Whether the applicants were entitled to rely on section 49 of the MPRA
at the stage of argument, when that ground was not pleaded in their
founding affidavit; and
1 Plascon-Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 620 (A).
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(ii) If so, whether the City failed to comply with section 49, thereby acting
unlawfully or unfairly under PAJA.
[22] It bears emphasis that the applicants’ founding affidavit was directed at the
lawfulness of the recategorisation of the property following changes to the rating
regime for places of worship. Their case was directed at exemption under section
17(1)(i) of the MPRA and procedural non- compliance in terms of section 3 of PAJA
due to non-receipt of the notice of the reclassification.
[23] Section 17(1)(i) of the MPRA states:
“Other impermissible rates
17. (1) A municipality may not levy a rate-
…
(i) on a property registered in the name of and used primarily as a place of
public worship by a religious community, including an official residence
registered in the name of that community which is occupied by an office -
bearer of that community who officiates at services at that place of
worship.”
[24] Whilst this Court is no longer called upon to decide the section 17(1)(i ) issue,
it is important to note its prima facie view on the provision of the MPRA. Section
17(1)(i) must be strictly interpreted . If not , it would be open to abuse and would
permit private companies incorporated for profit to hold property ostensibly for
religious use while in truth maintaining private control over substantial property
holdings and receiving the benefit or not paying rates in respect thereof.
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[25] The legislature has limited the exemption to property maintained by a religious
community to avoid such abuse, and it is the courts’ duty to enforce that strict
wording. Here, the first applicant is a private company whose only shareholder is a
trust, not a religious community. On a strict and proper application of section 17(1)(i),
therefore, the property does not qualify for t he rates exemption, and the applicants’
original reliance on this ground, is misconceived.
[26] At the hearing, though, the applicants wisely abandoned reliance on section
17(1)(i) and sought instead to premise their case squarely on section 49, as read
with section 115 of the Systems Act.
The case on the pleadings
[27] It is trite that one must stand or fall by the case made out in the founding
affidavit. As the court stated in Shephard
2:
“It is based on the plain principle of our law of civil procedure that all of the necessary
averments must appear in the founding affidavits or the Courts will not permit an
applicant to make or embellish his case in his replying affidavits and will order
anything found therein that should have been in the founding affidavits to be struck
out.”
[28] The Learned Judge went on and said:
“This is not however an absolute rule. It is not the law of Medes and Persians. The
Court has a discretion to allow new matter to remain in a replying affidavit, giving the
respondent the opportunity to deal with it in a second set of answering affidavits. This
2 Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W) at 177.
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indulgence, however, will only be allowed in special or exceptional circumstances.
The respondent in casu was not afforded an opportunity to deal with the new matter.”
[29] In Airports Company South Africa3 it was held that:
“The applicant must set out sufficient facts in the founding affidavit to disclose a
cause of action, that is the founding affidavit must be self-contained. The replying
affidavit (and in this instance the supplementary affidavit) cannot be used to augment
the applicant's case.”
[30] Accordingly, the City was obliged in its answering affidavit to answer only the
case pleaded, whether the recategorisation was lawful in light of the exemption
provisions and whether the applicants had been treated procedurally fairly under
PAJA. It was not required to foresee or respond to a section 49 challenge that was
never advanced on the papers.
[31] For this reason, the applicants’ reliance on part of section 49 was
impermissible.
Compliance with section 49 of the MPRA
3 Airports Company of South Africa (SOC) Ltd v Tswelokgotso Trading Enterprise CC [2022]
ZAGPJHC 410 at para 9.
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[32] Whilst not pleaded by the applicants, even if one were to entertain the section
49 argument, the applicants have not made out a case. Section 49 of the MPRA
provides as follows:
“(1) The valuer of a municipality must submit the certified valuation roll to the
municipal manager, and the municipal manager must within 21 days of receipt of the
roll-
(a) publish in the prescribed form in the provincial Gazette, and once a week for two
consecutive weeks advertise media, a notice -
(i) stating that the roll is open for public inspection for a period stated in the notice,
which may not be less than 30 days from the date of publication of the last notice;
and
(ii) inviting every person who wishes to lodge an objection in respect of any matter in,
or omitted from, the roll to do so in the prescribed manner within the stated period;
(b) disseminate the substance of the notice referred to in paragraph (a) to the local
community in terms of Chapter 4 of the Municipal Systems Act; and
(c) serve, by ordinary mail or, if appropriate, in accordance with section 115 of the
Municipal Systems Act, on every owner of property listed in the valuation roll a copy
of the notice referred to in paragraph (a) together with an extract of the valuation roll
pertaining to that owner’s property.
(2) If the municipality has an official website or another website available to it, the
notice and the valuation roll must also be published on that website.”
(my underlining)
[33] Section 49 requires both the publication of a valuation roll in the provincial
gazette and notification to property owners. In the present matter, the applicants did
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not plead non- compliance with section 49 in their founding affidavit. Their case,
relying on section 3 of PAJA, was premised upon alleged non-receipt of the notice.
[34] The City was only obliged to answer the case advanced in the founding
papers. It did so by showing that notice was served by ordinary mail and by email.
The postal notice was sent to the first applicant’s address, and an email notice was
sent from its computer generated system to the email address of the second
applicant, Ms Bradfield, the applicant’s representative and pastor. It is evident from
the record that this email was routinely used by both applicants in the context of
municipal correspondence, including invoices that were sent to the first applicant and
other material correspondence between the parties. Over a number of years, the first
applicant had accepted Ms Bradfield as its duly authorised representative for
municipal communications with no alternative contact details provided and no
objections made to the arrangement before the present dispute arose. The
applicants included, in their founding and replying affidavits , copies of the postal and
email notices (both of which they claim not to have received) whilst simultaneously
asserting that they did not receive them. This is an inherent contradiction. T hey
cannot credibly deny receipt of notices that they have themselves produced as
evidence. They render no explanation on the origine of these notices , yet their
possession of these notices obviously indicates receipt, which undermines their
denial of service.
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[35] The approach in Liebenberg 4 is useful here. In that case, the Constitutional
Court held that the municipality had substantially complied with procedural
requirements for rate imposition, albeit with minor technical faults. The Constitutional
Court emphasised that the question was whether the municipality followed
prescribed statutory procedures not whether it had met administrative law fairness
standards. This reaffirms that the City ’s evidence of dual service (ordinary mail and
email) is in compliance with the minimum requirements of section 49(1)(c) of the
MPRA.
[36] The applicants did not provide a meaningful challenge to such evidence in
reply. On the well-established principles of Plascon-Evans, th is Court is bound to
accept the City’s version where a dispute arises on the papers . Therefore, the Court
must accept the City’s version that it complied with its obligations insofar as notice is
concerned.
[37] The applicants relied on Central University
5 and Lombardy6. The applicants
relied on Central University and Lombardy. Both cases emphasise the need for
compliance with section 49 of the MPRA and hold that failure to demonstrate
compliance, when properly disputed, is fatal. Those judgments, however, arose in
materially different contexts. In each, non- compliance with section 49 was expressly
pleaded, and the municipalities concerned failed to prove compliance. The present
matter is distinct, both procedurally and substantively. Section 49 was never
4 Liebenberg NO and Others v Bergrivier Municipality [2013] ZACC 16; 2013 (5) SA 246 (CC); 2013
(8) BCLR 863 (CC).
5 Central University of Technology v Mangaung Metropolitan Municipality (Case number A12/2020)
ZAFSHC 340.
6 City of Tshwane Metropolitan Municipality v Lombardy Development (Pty) Ltd 2018 (3) All SA 605
(SCA).
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advanced as a ground of review, and the City has in any event shown actual service
through multiple channels. The approach in Liebenberg is instructive. There, the
Constitutional Court held that substantial rather than perfect compliance with
statutory procedures is sufficient. Applying that principle, the City’s dual method of
service satisfies the requirements of section 49, notwithstanding any minor
procedural objections that might theoretically be raised.
[38] In this matter, by contrast, the applicants’ founding case was based on section
3 of PAJA and on allegations that they had not received notice. Section 49 was never
pleaded, and it arose for the first time only during argument. The City was therefore
under no obligation in its answering affidavit to address publication in the Provincial
Gazette or the broader requirements of section 49, as no such case had been made.
Its duty was confined to meeting the pleaded PAJA claim, which it did by
demonstrating dual service: notice was sent by ordinary mail to the registered
address of the first applicant and by email to the applicants’ chosen and regularly
used email address. Section 49(1)(c) expressly permits service by ordinary mail or
by electronic means as contemplated in section 115 of the Municipal Systems Act.
[39] Accordingly, reliance on the two authorities is misplaced. They do not apply to
the present matter, where section 49 non- compliance was never pleaded. In any
event, even if it had been, the City’s evidence demonstrates compliance.
The Legislative / Administrative Distinction:
[40] Both the applicants and the City conducted their cases on the assumption that
the reclassification of the property amounts to “administrative action” reviewable
under PAJA. As counsel for the City noted in argument, that assumption may warrant
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careful scrutiny in light of established jurisprudence. It is, however, unnecessary to
decide the point here, as it was neither fully pleaded nor comprehensively argued.
[41] The crucial question is whether the City followed the procedures prescribed
by section 49 (valuation roll procedures) of the MPRA.
[42] The applicants have not shown non- compliance with either the procedural
obligations under the MPRA or the fairness requirements under PAJA. The City has
provided evidence of notice that meets the standard of substantial compliance
confirmed in Liebenberg. The applicants’ bare denials do not raise a genuine dispute
of fact. Applying the Plascon-Evans principle, the City’s version must prevail. The
application therefore cannot succeed on either ground.
Costs
[43] The applicants seek a punitive costs order. There is no basis for such relief.
On the contrary, they advanced a new ground of review that was not properly
pleaded. The appropriate order is that costs follow the result. The City has asked for
the costs of two counsel. In the exercise of my discretion, I consider it appropriate to
allow such costs, on the applicable scale C.
[44] The costs of the part A relief were reserved for determination by this Court.
The applicants persist in seeking those costs. The City’s agreement to the part A
relief does not amount to capitulation; it was a sensible course for an organ of state
to adopt. Although rates remain payable notwithstanding a dispute, consenting to an
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interim interdict pending adjudication was pragmatic. The question is whether the
City should bear the costs of that relief despite being ultimately successful. The
answer is no. The foundation for the part A relief, based on section 17(1)(i), was
misconceived and later abandoned. An award of costs to the applicants would not
serve the interests of justice. The costs of part A are accordingly to be treated as
costs in the cause of part B, and are awarded in favour of the respondent.
Order
[45] The following order is made:
[57.1] The application is dismissed.
[57.2] The costs of part A shall be costs in the cause.
[57.3] The applicants are ordered to pay the respondent’s costs, costs to
include the costs of two counsel on scale C.
E JONKER
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
N ERASMUS
JUDGE OF THE HIGH COURT
Appearances:
For applicants: Adv WTB Ridgard
Adv N Strydom
For Respondent: Adv N Bawa SC
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Adv Samuels