IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 2025-086196
In the matter between:
NEW SUPERMAN ASSET COMPANY (PTY) LTD
(Registration number 2017/09230/07) FIRST APPLICANT
CE CAPE TOWN NORTH NPC SECOND APPLICANT
and
CITY OF CAPE TOWN RESPONDENT
Coram: ERASMUS J et JONKER AJ
Heard: 5 February 2026
Delivered: 6 February 2026
Summary: Application for leave to appeal - No reasonable prospect of success
or compelling reason for the appeal to be heard – Section 17(1)(a) of the
Superior Courts Act 10 of 2013 - Leave to appeal refused with costs, including
the costs of two counsel on scale C.
ORDER
1. The application for leave to appeal is refused.
2. The applicants are ordered to pay the respondent’s costs of the
application for leave to appeal, such costs to include the costs of two
counsel on scale C.
________________________________________________________________
JUDGMENT
JONKER AJ:
Introduction
[1] This is an application by the applicants for leave to appeal to the Supreme
Court of Appeal (“the SCA”) against the judgment and order of this Court,
delivered on 8 October 2025. In that judgment, the application was dismissed
with costs, including the costs of two counsel on scale C.
[2] The applicants advance seven grounds of appeal. In essence, they
contend that this Court erred: (a) in finding that the respondent substantially
complied with section 49 of the Municipal Property Rates Act 6 of 2004 (“the
MPRA”); (b) in holding that reliance on section 49 was impermissible because it
was not pleaded in the founding affidavit; (c) in the allocation of the onus of proof;
(d) in distinguishing City of Tshwane Metropolitan Municipality v Lombar dy
Development (Pty) Ltd (“Lombardy”); (e) in its findings regarding the service
requirements; (f) in finding that service on Ms Bradfield constituted valid service
on the first applicant; and (g) in inferring receipt from past communications.
[3] The respondent opposes the application and submits that none of the
grounds discloses a reasonable prospect of success on appeal or any other
compelling reason why the appeal should be heard.
The Legal Framework for Leave to Appeal
[4] Section 17(1)(a) of the Superior Courts Act 10 of 2013 provides that leave
to appeal may only be granted where the judge or judges concerned are of the
opinion that the appeal would have a reasonable prospect of success, or that
there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[5] In Smith v S [2011] ZASCA 15, the Supreme Court of Appeal held that
there must be a sound, rational basis for the conclusion that reasonable
prospects of success exist. T he prospects must not be remote; there must be a
realistic chance of succeeding. This principle has been consistently applied in
MEC for Health, Eastern Cape v Mkhitha [2016] ZASCA 176 and Ramakatsa v
African National Congress [2021] ZASCA 31 March 2021.
[6] It is with these principles in mind that we consider each ground advanced
by the applicants.
The failure to plead Section 49 in the founding affidavit
[7] The applicants’ first and most fundamental difficulty is that non-compliance
with section 49 of t he MPRA was never advanced as a ground of review in their
founding affidavit. Their case, as pleaded, was directed at the lawfulness of the
recategorisation of the property under section 17(1)(i) of the MPRA and at
procedural unfairness under section 3 of the Promotion of Administrative Justice
Act 3 of 2000 (“PAJA”). At the hearing on 5 September 2025, they abandoned
the section 17(1)(i) ground and sought to pivot their entire case to section 49.
This Court held that such reliance was impermissible.
[8] The applicants now contend that we erred. They rely on Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2)
SA 279 (T) for the proposition that a party in motion proceedings may advance
legal argument not specifically me ntioned in the papers, provided it arises from
the facts alleged. They also submit that section 49 compliance constitutes a
jurisdictional prerequisite that may be raised at any stage.
[9] These submissions are unpersuasive for several reasons.
[10] First, the principle that an applicant must stand or fall by the case made
out in the founding affidavit is well established. In Shephard v Tuckers Land and
Development Corporation (Pty) Ltd 1978 (1) SA 173 (W) at 177, the court held
that all necessary averments must appear in the founding affidavit, and the court
will not permit an applicant to make or embellish its case in its replying affidavit.
The indulgence of allowing new matter will only be granted in special or
exceptional circumstances, and only where t he respondent is afforded an
opportunity to deal with it.
[11] Second, the Swissborough principle applies to legal arguments that arise
from the pleaded facts. A section 49 challenge is not a mere point of law. It raises
discrete factual questions about g azette publication, the form and timing of
individual notices, the method of service, and the respondent’s internal dispatch
procedures. These are matters that the respondent was entitled to address with
evidence had they known what case to were to meet . The founding affidavit did
not plead these facts, and the respondent was not afforded the opportunity to
respond to them.
[12] Third, the applicants’ contention that the respondent suffered no prejudice
because it addressed section 49 in its answering affidavit is misconceived. The
because it addressed section 49 in its answering affidavit is misconceived. The
respondent addressed service only in the context of rebutting the applicants’
PAJA claim of procedural unfairness due to non -receipt of notice. Had the
respondent been on notice of a dedicated section 49 challenge, it could and no
doubt would have placed additional evidence before the court, including gazette
publication records, internal dispatch logs, and affidavits from the relevant
officials responsible for the section 49 process. The prejudice to the respondent
is manifest.
[13] We are not persuaded that another court would reach a different
conclusion on this issue. The principles are trite, the application of those
principles to the facts is straightf orward, and no special or exceptional
circumstances have been demonstrated. This ground does not disclose
reasonable prospects of success.
The applicability of Lombardy
[14] The applicants rely extensively on Lombardy and submit that this Court
erred in distinguishing that case. In Lombardy, the Supreme Court of Appeal held
that the City of Tshwane’s failure to comply with section 49 of the MPRA was
fatal to the validity of the valuation roll. The applicants argue that the same result
should follow here.
[15] The analogy is, however, inapt for at least three reasons.
[16] First, in Lombardy, and as the counsel for the applicant conceded in
argument, non-compliance with section 49 was expressly pleaded in the founding
papers. The municipality was squarely on notice of t he challenge and was
afforded every opportunity to respond. In the present matter, no such case was
made.
[17] Second, in Lombardy, again as conceded by counsel in argument , the
respondent of Tshwane conceded that it could not demonstrate any compliance
with section 49 whatsoever, it was unable to produce any notices at all. Here, by
contrast, the respondent has produced evidence of dual service: a postal notice
dispatched to the first appli cant’s physical address and email notices sent to Ms
Bradfield’s designated email address. The factual matrices are materially
different.
[18] Third, the Lombardy proceedings, again as conceded by counsel in
argument, were instituted as review proceedings under PAJA and Uniform Rule
of Court 53, which required the municipality to produce the administrative record.
The present application seeks declaratory relief , not review. This procedural
distinction affects the framework within which compliance is assessed.
[19] The applicants’ argument that the pleading -based distinction would allow
municipalities to evade Lombardy’s authority through technical objections does
not withstand scrutiny. The requirement that an applicant plead its cause of
action in the foun ding affidavit is a foundational principle of motion proceedings ,
not a technicality. It exists to ensure procedural fairness to the responding party
and the orderly administration of justice. An appeal court is unlikely to find error
in this Court’s adher ence to that principle. This ground does not disclose
reasonable prospects of success.
Substantial compliance with Section 49
[20] The applicants contend that this Court erred in finding that the respondent
substantially complied with the procedural requir ements of section 49 of the
MPRA. They argue that section 49 uses mandatory language and requires strict
compliance, leaving no room for the substantial compliance doctrine.
[21] This submission is contrary to established authority. The Constitutional
Court in Liebenberg NO and Others v Bergrivier Municipality [2013] ZACC 16
held that a failure by a municipality to comply with relevant statutory provisions
does not necessarily lead to the actions under scrutiny being rendered invalid.
The question is whethe r there has been substantial compliance, taking into
account the relevant statutory provisions in particular and the legislative scheme
as a whole. The Supreme Court of Appeal in Unlawful Occupiers, School Site v
as a whole. The Supreme Court of Appeal in Unlawful Occupiers, School Site v
City of Johannesburg 2005 (4) SA 100 (SCA) at para 22, stated that even where
formalities are peremptory, not every deviation is fatal; the question remains
whether the object of the statutory provision has been achieved.
[22] The object of section 49(1)(c) is to ensure that property owners are
informed of the contents of the valuation roll pertaining to their property and are
afforded the opportunity to lodge objections. In the present matter, the
respondent dispatched a postal notice to the first applicant’s physical address
and sent email notices to Ms Bradfield’s designated email address , the very
address at which the applicants admittedly received all other municipal
communications over several years. The July 2024 supplemen tary valuation roll
notice expressly informed the owner that the property was categorised as
“miscellaneous”, that rates would be charged from 1 October 2023, and that
objections could be lodged between 19 July 2024 and 30 August 2024. The
statutory purpose was plainly achieved.
[23] We are satisfied that the finding of substantial compliance is sound and
that another court would not reach a different conclusion. This ground does not
disclose reasonable prospects of success.
The allocation of the onus of proof
[24] The applicants argue that this Court erred in holding that the evidentiary
burden shifted to them to demonstrate non -receipt of the notices. They contend
that the overall onus rested on the respondent to prove compliance with
jurisdictional prerequisites.
[25] The applicants bore the overall onus of establishing the grounds on which
they claimed the respondent’s conduct was unlawful. The applicants alleged non-
receipt of notices. The respondent adduced prima facie evidence of service:
dispatch by o rdinary mail to the first applicant’s physical address and service by
email to Ms Bradfield’s designated address. Once that evidence was before the
court, the evidentiary burden shifted to the applicants to demonstrate that they
were not, in fact, notified.
[26] This Court’s treatment of the onus was entirely orthodox. No basis has
been shown for concluding that the Supreme Court of Appeal would reach a
different conclusion. This ground does not disclose reasonable prospects of
success.
Evidence of service and the Plascon-Evans principle
[27] The applicants contend that the respondent produced no proof of posting,
no proof of email transmission, no contemporaneous file notes, and no
acknowledgement of receipt. They argue that where the respondent cannot
produce such evidence, the only reasonable conclusion is that no notices were
sent.
[28] This argument is undermined by the record. A matter of considerable
significance, which the applicants have not satisfactorily explained, is that they
themselves attached copies of both the postal notice and the email notices to
their founding and replying affidavits , the very notices they claim not to have
received. Their possession of these documents is an inherent contradiction. They
cannot credibly d eny receipt of notices that they have themselves placed before
the Court as evidence. No explanation has been tendered on the pleadings, for
how they came to be in possession of notices that they say were never served.
[29] Furthermore, where the papers di sclose a factual dispute , with the
applicants denying receipt and the respondent asserting dispatch and service ,
the well-established Plascon-Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty)
Ltd 1984 (3) SA 623 (A) principle applies: the court must decide the matter on the
respondent’s version, together with those parts of the applicant’s version that are
not in dispute. On the respondent’s version, which must be accepted, notice was
dispatched by ordinary mail and served by email. The applicants have not
alleged that the email address was invalid, that it had been changed, or that the
respondent’s emails were returned as undeliverable.
[30] The applicants further rely on the respondent’s statement in its answering
affidavit that it “ has no way of confirming the postage of notices .” They
characterise this as an admission of non -compliance. It is no such thing. Section
49(1)(c) permits service by ordinary mail. Ordinary mail, by its nature, does not
generate tracking records. The respondent’s inability to produce postal tracking
documentation is entirely consistent with lawful service by ordinary mail. It is not
an admission that no notice was posted.
[31] We are satisfied that this Court’s findings on the evidence of service were
correct. Another cou rt would not reach a different conclusion. This ground does
not disclose reasonable prospects of success.
The validity of service on Ms Bradfield
[32] The applicants contend that service on Ms Bradfield’s email address
cannot constitute valid service on th e first applicant because section 49(1)(c)
requires service on every owner of property listed in the valuation roll, and Ms
Bradfield is not the owner. They further argue that no resolution, power of
attorney, or written mandate was produced authorising Ms Bradfield to receive
section 49 notices on the first applicant’s behalf.
[33] These submissions disregard the established facts. It is common cause
that the first applicant nominated Ms Bradfield’s email address as its designated
contact for all municipal communications. Ms Bradfield was described in the
papers as the first applicant’s authorised agent for municipal dealings, including
billing and correspondence. Over a period of several years, the first applicant
received monthly invoices and other munici pal correspondence at this address
without objection. No alternative contact details were ever provided. Ms Bradfield
used this email address in her official capacity on behalf of both applicants.
Numerous communications were exchanged between Ms Bradfield and the
respondent from this address.
[34] An owner who designates a particular email address as the sole channel
for all municipal communications, who accepts correspondence and invoices at
that address for years, and who provides no alternative, cannot thereafter
complain that statutory notices s ent to the very same address do not constitute
service on the owner. The first applicant is bound by the consequences of its own
designation. Furthermore, no evidence is before the court confirming that Ms
Bradfield had no authority to receive corresponden ce or notices. To hold
otherwise would permit property owners to nominate a contact address for their
convenience but repudiate it when served with inconvenient notices. That cannot
be the law.
[35] This ground does not disclose reasonable prospects of success.
Inference of receipt from past communications
[36] The applicants’ final substantive ground is that this Court erred in inferring
receipt of the statutory notices from the fact that Ms Bradfield had previously
received municipal commu nications at the same email address. They argue that
receipt of routine billing invoices does not prove receipt of section 49 notices.
[37] The applicants mischaracterise the court’s reasoning. The finding was not
based solely on the receipt of past invoic es. The respondent’s evidence was that
the specific supplementary valuation roll notices , dated 7 March 2023
(approximately, effective from 14 September 2023) and 16 July 2024 , were sent
to Ms Bradfield’s email address, the same address at which the applic ants
admittedly received all other municipal correspondence. All notices , both those
designating the property as “religious” and those recategorising it as
“miscellaneous”, were sent to the same email. The applicants never alleged that
the address was inva lid, that it had been changed, or that the emails were
returned as undeliverable. Their denial of receipt, unaccompanied by any
explanation, is precisely the kind of bare denial that the Plascon-Evans principle
explanation, is precisely the kind of bare denial that the Plascon-Evans principle
is designed to address.
[38] Indeed, the firs t applicant itself admitted that it noted the change of
property rating category on its monthly account but did not enquire further
because no rates were being imposed. This acknowledgement that the first
applicant was aware of the reclassification on its account further undermines its
claim that it was never notified.
[39] This ground does not disclose reasonable prospects of success.
Compelling reason
[40] The applicants invoke the public interest as a compelling reason for the
appeal to be heard. They submit that the matter raises issues of general
importance regarding the proper interpretation of mandatory statutory procedures
governing municipal rates. We disagree. The issues in this case are narrow and
fact specific. The central question is whether these applicants received notice of
this recategorisation of this property. That is not a novel or unsettled point of law
of general application. The principle s governing pleading requirements in motion
proceedings, the substantial compliance doctrine, the onus of proof, and the
Plascon-Evans rule are all well established. There are no conflicting judgments
on the matter under consideration. No compelling reason has been
demonstrated.
The underlying merits
[41] It bears noting, as this Court observed in its judgment of 8 October 2025 ,
that the applicants’ original case was that the property qualifies for exemption
under section 17(1)(i) of the MPRA as property ow ned by a religious community
and used exclusively as a place of public worship. That ground was abandoned
at the hearing because, on any proper construction of section 17(1)(i), the
property does not qualify: it is owned by a private company whose sole
shareholder is a trust, not by a religious community. The legislature deliberately
limited the exemption to property owned by a religious community to prevent
abuse. Even if the Supreme Court of Appeal were to find some procedural defect
in the service of the section 49 notices, the underlying merits remain: the
property is not exempt, and rates are lawfully owing. The practical utility of the
appeal is accordingly doubtful.
Conclusion
[42] We have considered each of the applicants’ seven grounds of appeal
individually and cumulatively. None discloses a reasonable prospect that another
court would reach a different conclusion. No compelling reason for the appeal to
be heard has been shown.
[43] In the circumstances, the application for leave to appeal must be refused.
Costs
[44] The applicants have been wholly unsuccessful. Costs should follow the
result. The respondent has asked for the costs of two counsel on scale C, as was
awarded in the main application. In the exercise of our discretion, we consider it
appropriate to allow such costs.
Order
[45] The following order is made:
1. The application for leave to appeal is refused.
2. The applicants are ordered to pay the respondent’s costs of the
application for leave to appeal, such costs to includ e 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 applicant: Adv WTB Ridgard
Adv N Strydom
Instructed by: Esterhuyze Attorneys, Bellville.
For respondent: Adv N Bawa SC with Adv Samuels
Instructed by: State Attorney, Cape Town.