SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG

Not Reportable
CASE NO: M303/2020

In the matter between:

RUSTENBURG PINE INN LODGE (PTY) LTD Applicant

and

RUSTENBURG LOCAL MUNICIPALITY First Respondent

Coram: Petersen ADJP
Date enrolled and heard: 13 March 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 11h00 on 09 April 2026.

Summary: Application for ancillary relief arising from non -compliance with
the order of Gura J dated 13 August 2020 — applicant does not persist in
prayers for joinder of the municipal manager, a contempt declaration or
committal order — relief persisted in confine d to leave to bring the ancillary
application; a declaration of non-compliance with the 2020 order; ratification of
the applicant’s computation of the correct account balance; and a costs order —
following a case management order by the Judge President dat ed 29 August
2025, the parties filed supplementary papers covering the period September
2022 to September 2025 — municipality continued to bill the applicant on an
incorrect classification throughout — non-compliance with the 2020 order
established — the a pplicant’s account balance, recalculated from 28 February
2018 to account for all legitimate charges and payments through the extended
period — costs awarded against the respondent on the attorney-and-client scale.
________________________________________________________________

JUDGMENT
________________________________________________________________
PETERSEN ADJP

Introduction
[1] This matter arises from a protracted and contentious dispute between
Rustenburg Pine Inn Lodge (Pty) Ltd (“the applicant”), b eing the registered
owner of Portion 399 of the Farm Waterkloof 305 JQ (“the property”), and the
respondent, the Rustenburg Local Municipality (“the Municipality”),
concerning the incorrect zoning classification of the property and the
consequent overbilling of municipal charges spanning more than seven years.
The applicant initially approached this Court in 2020 seeking rectification of its
municipal account. On 13 August 2020, this Court (per Gura J) granted an order
(“the 2020 order”) directing the Municipality to correct the property’s zoning to

‘High Potential/Unique Agricultural’ and to adjust the applicant’s account
accordingly.

[2] Prayer 4 of the 2020 order expressly reserved to the applicant the right to
approach this Court on papers duly suppleme nted for ancillary relief if the
account queries were not resolved. Pursuant to that reservation, the applicant
returned to this Court in August 2022, contending that the Municipality had
failed to give full effect to the 2020 order. That application, oppo sed by the
Municipality, was heard by Dewrance AJ. Regrettably, the proceedings were
unduly delayed following certain orders granted by Dewrance AJ, who failed to
see the matter through. The matter was thereafter referred to the Judge
President, Hendricks JP, for further directions as to the conduct of the
application. On 29 August 2025, the Judge President issued a case management
order directing the parties to file supplementary affidavits covering the period
September 2022 to September 2025, with updated municipal statements, and to
set the matter down for hearing on the supplemented papers.

[3] The matter was enrolled before this Court on 13 March 2026 on the
Opposed Motion roll. The applicant persists in prayers 1, 3, 4 , and 7 of the
notice of motion and accordingly seeks leave to bring this ancillary application;
ratification of its computation of the correct account balance; a declaration that
the respondent has failed to give effect to the 2020 order; and a costs order. The
applicant does not pers ist in the joinder of the Municipal Manager (prayer 2),
the declaration of contempt (prayer 5), or the committal order (prayer 6). The
applicant's counsel, Adv Wijnbeek, confirmed at the outset of argument that the
joinder prayer need not be pursued, as th e applicant’s primary aim is the
resolution of the account, and not the imprisonment of any person.

[4] This application serves to illustrate what this Court, in Kgetlengrivier
Concerned Residents and Another v Kgetlengrivier Local Municipality and
Others1, characterised as “the chronic absence of service delivery” and the
endeavours of affected residents to hold municipalities and their accounting
officers accountable. Municipal functionaries, and Municipal Managers in
particular, bear a solemn responsib ility to ensure that their institutions comply
with the law and with court orders. The present matter, which has now been
before the courts for more than five years without the Municipality giving
substantive effect to the 2020 order, is a stark illustration of that failure.

The parties

[5] The applicant is Rustenburg Pine Inn Lodge (Pty) Ltd, the registered
owner of the property. The respondent is the Rustenburg Local Municipality, a
local municipality duly constituted in terms of s 12 of the Local Government:
Municipal Structures Act 117 of 1998.

Factual background

[6] The property was historically classified and zoned as ‘High
Potential/Unique Agricultural’. It was developed as a public resort pursuant to a
permit issued by the North West Provincial Administration under Ordinance 18
of 1969. The permit, issued on 23 May 2001, authorised the development and
use of the property for 17 single bedroom chalets, subject to specified
conditions. The property has been operated as a lodge (Rustenburg Pine Inn) in
accordance with that permit since 2001, and no material change in use has ever
occurred.

1 Kgetlengrivier Concerned Residents and Another v Kgetlengrivier Local Municipality and Others
(CIV APP FB 04/22; UM69/2021; UM79/2021) [2023] ZANWHC 29 (17 March 2023).

[7] In or about October 2018, the applicant’s municipal account reflected a
dramatic and wholly unexplained increase. Property rates escalated from
approximately R1 950.00 per month to approximately R 27 000.00, and the
account was suddenly shown as in arrears by more than R1.2 million. A review
of the account statement for the period ending 30 September 2018 reveals the
pattern with striking clarity. For all periods prior to October 2018, the account
reflected agricultural rates in columns 1, 2, and 3, and the account was paid in
full. From October 2018 onward, business/commercial rates were levied, and
the inflated arrear figure materialized at the same time. The applicant, through
its sole shareholder, Mr. Philippus Lodewijkus Ras, immediately engaged with
municipal officials, including Mr. T. Mudziwa. The Municipality had
unilaterally re-categorised the property as ‘Business/Commercial’ or ‘Industrial’
and had raised backdated charges, penalties, and interest.

[8] The applicant made extensive and conscientious efforts to resolve the
dispute through administrative channels. Mr. Ras attended meetings at the
municipal offices, furnished supporting documentation, and invited municipal
officials to conduct a site ins pection. A site inspection was conducted on 06
December 2018, during which the attending officials confirmed that the
property was used for chalet accommodation, not for industrial purposes.

[9] Notwithstanding these engagements, the Municipality failed t o correct its
records. In July 2019, the applicant received a letter of demand from the
Municipality’s attorneys claiming R1 531 356.01, with notification that the
account had been ‘marked for summons’. An exchange of correspondence
between the parties’ at torneys ensued, but the impasse remained unresolved.
The municipal account statement for June 2020, issued just before the Gura J
order, reflected an opening balance of approximately R1.9 million, with

business/commercial rates being levied at approximate ly R9 000.00 per month.
Charges for refuse removal and sewerage, services not rendered to the property,
appeared on the account, as did continuing interest.

[10] On 13 August 2020, this Court (per Gura J) granted the following order:

‘1. THAT: The Respondent, via its authorised personnel, correct and amend on the
Respondent's billing and related system, the zoning of Portion 399 of the Farm
Waterkloof 305 JQ ('Portion 399') to 'High Potential/Unique Agricultural' in
accordance with the zon ing certificate issued by the Respondent's Directorate:
Planning & Human Settlement, dated 30 October 2018;

2. THAT: The Respondent, via its authorized personnel, correct the Applicant's
account for Portion 399; by inter alia —
2.1.1 Removing the property rates charged as Business/Commercial and
replacing the same with the appropriate tariffs applicable to zoning
classified as 'High Potential/Unique Agricultural';
2.1.2 Withdrawing all penalties and interest on the account for Portion 399
resulting from th e property rates charged on zoning Portion 399 as
'Business/Commercial' and/or 'Industrial';
2.1.3 Removing all items erroneously billed as a result of the incorrect
zoning of Portion 399, such as levies for refuse removal and sewerage;

3. THAT: The Respondent is to, within 30 days, debate the account on Portion 399
with the Applicant; with such meeting to be arranged via the parties' respective
attorneys;

4. THAT: The Applicant be and is hereby granted leave to apply to the Court on the
papers duly suppl emented for ancillary relief if the account queries are not
resolved as per orders 1 to 3 herein above;

5. THAT: The Respondent to pay the costs of this application on an attorney and
client scale.’

The events following the 2020 order

[11] The 2020 order was served upon the Municipality. Notwithstanding
service, the applicant’s account was not rectified. Invoices continued to reflect
the incorrect zoning classification; interest continued to accrue; and charges for
refuse removal and sewerage servic es not rendered to the property remained on
the account.

[12] A meeting was eventually convened on the property on 04 June 2021,
attended by Mr. Ras, his attorney Mr. Peens, and municipal officials, including
Ms. Busisiwe Faku and Mr. Thabiso Mkhwanazi. A t that meeting, the
Municipality acknowledged that the rezoning of the property to ‘Commercial
Business’ had been erroneous. The minutes of the meeting, as recorded in
correspondence from the applicant’s attorneys dated 09 June 2021, reflect the
following agreements: (a) the rezoning from agricultural to commercial
business was incorrect; (b) the Municipality would reverse all charges on the
account with effect from October 2018; (c) a rectified account would be
furnished in June 2021; (d) the Municipality would correct the applicant's
registered name from Shamone Property Developers to Rustenburg Pine Inn
Lodge (Pty) Ltd, which had been registered with the Companies and Intellectual
Property Commission since 2015; and (e) no charges for refuse removal or
sewerage would be reflected on the account, as those services had not been
rendered.

[13] Despite these formal undertakings, the rectification was not effected. The
applicant’s attorneys pursued the matter assiduously. In May 2021, they issued a
warning of contempt proceedings. In February 2022, the applicant received a
further letter of demand, on this occasion from external debt collectors, Ntiyis

Consulting, demanding payment of R1 823 724.22, a demand issued in flagrant
disregard of the extant 2020 order.
[14] Correspondence during February 2022 reveals that municipal officials
were cognisant of the dispute. Mr. Lucky Molotsane sought a 14-day indulgence
to attend to the matter. Ms. Busisiwe Faku asserted that the account had been
“corrected in August 2021”, an assertion belied, in the most direct terms, by the
subsequent letter of demand and by the invoices that continued to be rendered
thereafter. The applicant persevered in its endeavours to secure compliance, but
the Municipality remained in default.

[15] On 08 March 2022, the Rustenburg Municipal Planning Tribunal
confirmed that the property’s zoning remained “High Potential/Unique
Agriculture”. This determination was made in the presence of, and with the
participation of, the Municipality itself. The Planning Tribunal’s decision
recorded that the property was zoned ‘High Potential Unique Agriculture’; that
it was at that stage used ‘with public resort land use rights’ in accordance with
the existing use rights; and that two of the relevant portions re mained vacant.
Any change in use was proposed for the future and was subject to conditions
precedent. The Municipality’s own planning authority thus confirmed the
correct position as at March 2022. The use had always been within the ambit of
the 2001 permit. Nothing had changed , essentially confirming what Gura J had
ordered in 2020.

[16] As of August 2022, when the applicant launched the present application
for ancillary relief, the Municipality had still not given full effect to the 2020
order. The applicant’s account continued to reflect incorrect charges; interest
continued to accrue; and th e substantial alleged arrears, computed by the
Municipality at more than R1.8 million, remained on its system. This persisted
notwithstanding the Tribunal’s confirmation of the correct zoning and the

Municipality’s own admissions at the June 2021 meeting. In particular, the
municipal account statement for March 2022, approximately two years after the
Gura J order, still reflected an opening balance of approximately R2 million;
sewerage charges continued to appear; and the property was now rated as
‘residential’, not agricultural as expressly directed by the 2020 order. The
account for October 2022 (Annexure RLM2 to the Opposing Affidavit)
reflected a balance brought forward of R1 383 166.80, of which R1 273 310.82
was recorded as more than 180 days in arrears, and the property continued to be
billed as ‘residential’.

The case management order of 29 August 2025 and supplementary papers

[17] When the ancillary application was argued before Dewrance AJ, the matter
was not finally disposed of . As indicated above, it was subsequently referred to
the Judge President for further directions. On 29 August 2025, Hendricks JP
issued a case management order directing that the parties file supplementary
affidavits updating the court on the position of the account for the period
September 2022 to September 2025; updated municipal statements and all
relevant billing documentation for that period be annexed to the supplementary
papers; and the matter be enrolled for argument on the supplemented papers.

[18] I n compliance with the case management order, the applicant filed a
Supplementary Affidavit deposed to by Mr. Ras, together with a Supporting
Affidavit by his attorney, Mr. A. Peens. Annexures A1 and A2 support Mr. Ras’s
Supplementary Affidavit . Annexure A1 is the Municipality’s own account
schedule, a printout of the Municipality’s version of the account for the
extended period. Annexure A2 is the applicant’s reworked version of that same
schedule, in which Mr. Ras adjusts only the credit column to reflect what the

applicant contends the Municipality was obliged to correct in accordance with
the 2020 order, and recalculates the running balance accordingly.

[19] The respondent filed a supplementary opposing affidavit deposed to by Mr.
AR Khuduge, the Municipal Manager, at the time, supported by a Confirmatory
Affidavit from Mr. SJ Mokotedi. Annexures RTB1 accompany this affidavit to
RTB15. Mr. Khuduge’s affidavit represents a fresh deponent for the
Municipality in these proceedings, replacing Ms. Mdhluli, who deposed to the
original opposing affidavit. Like Ms. Mdhluli, Mr. Khuduge relies upon
information furnished to him by municipal employees.

[20] Both parties filed updated practice notes and further heads of argument.
The applicant’s further heads of argument, filed 05 March 2026, expanded the
grounds of relief to address the extended period of non -compliance and updated
the quantum of the account balance accordingly.

The opposing affidavits

[21] The original opposing affidavit was deposed to by Ms. Vivian Mdhluli, the
then Acting Municipal Manager, appointed 14 February 2023, who relied upon
information from Ms. Busisiwe Faku and Mr. Thabiso Mkhwanazi. The
respondent contended that the Municipality had complied with the 2020 order
by effecting the fo llowing adjustments: (a) reversal of R1 052 570.04; (b)
application of a net credit of R763 990.04; (c) reversal of interest of R157
836.40; and (d) reversal and deactivation of charges for sewerage and refuse of
R25 983.31, R5 019.85, and R2 944.17 respec tively. The respondent also
contended that the account had been correctly reflected from May 2021 and that
the property had been re-categorized as ‘residential’ by mutual agreement.

[22] In the supplementary opposing affidavit, Mr. Khuduge does not
substantially depart from the position of Ms. Mdhluli. He asserts that the
Municipality effected compliance with the 2020 order through the adjustments
recorded in the original opposing affidavit, and that the continued balance on
the account is attributable to outstanding lawful charges for the post -correction
period and to the applicant’s own failure to make regular payments in
accordance with the corrected account. He contends, in particular, that the
applicant made payments that did not correspond to the invoices rendered on the
corrected basis, thereby creating ongoing allocation difficulties. The
Municipality maintains that the property was correctly reclassified as
‘residential’ pursuant to an agreement reached at the August 2021 meeting.

[23] The responde nt further challenges the applicant’s computation of the
account balance on the grounds that the Municipality alone has the statutory
competence to calculate municipal revenues and that this Court may not usurp
that function.

The applicant’s replying affidavit and supplementary founding affidavit

[24] In the original replying affidavit, the applicant furnished a meticulous
chronology, supplemented by extensive correspondence, demonstrating the
Municipality's consistent and persistent failure to rectify the account. The
applicant annexed emails and letters spanning from December 2022 to June
2023, establishing that, notwithstanding repeated promises of rectification,
incorrect billing persisted throughout.

[25] The applicant’s Supplementary Founding Affidavit (SFA) contained, as
Annexure SFA13, a detailed computation reworking the account from 28
February 2018 by applying the correct ‘High Potential/Unique Agricultural’

tariffs and reversing all charges improperly levied under t he
‘Business/Commercial’ or ‘Industrial’ classification, together with all associated
penalties, interest, and incorrectly billed service levies. As at 15 August 2022,
the SFA13 computation showed the correct balance as R189 028.00.

[26] In his Supplementary Affidavit filed pursuant to the Judge President’s case
management order, Mr. Ras extends the SFA13 computation through the period
September 2022 to September 2025. The updated computation (Annexures A1
and A2) reflects the municipal statements rendered during that period. It
demonstrates that: (a) the Municipality continued throughout to bill on a
‘residential’ classification rather than ‘High Potential/Unique Agricultural’ as
directed by the 2020 order; (b) sewerage charges continued to appear on certa in
statements; (c) the applicant continued to make payments throughout the
extended period; and (d) on the applicant’s corrected computation in Annexure
A2, the correct balance as at 31 August 2025, applying the agricultural tariff
throughout and crediting all payments made, reflects a credit of R8 005.17 in
the applicant’s favour, meaning the Municipality owes the applicant that amount
rather than the applicant owing the Municipality.

Issues for determination

[27] The following issues fall to be determin ed. Whether the 2020 order was
properly served upon the Municipality; whether the respondent failed to give
effect to prayers 1, 2.1.1, 2.1.2, and 2.1.3 of the 2020 order; whether the
applicant’s computation of the correct account balance should be ratifie d, and if
so, in what amount; and the appropriate order as to costs.

The applicable legal principles

[28] This application is brought pursuant to prayer 4 of the 2020 order, which
reserved to the applicant the right to approach this Court on supplemented
papers for ancillary relief. The standing of the applicant to bring this application
is therefore beyond dispute and expressly authorised by the prior order. Prayer 1
of the notice of motion is accordingly granted as a matter of course.

[29] The declarat ory relief sought is competent under s 21(1)(c) of the
Superior Courts Act 10 of 2013, read with Rule 33(4) of the Uniform Rules of
Court. An applicant for declaratory relief must demonstrate a direct and
substantial interest in an existing, live dispute, and that the declaration sought
would be of practical benefit.

[30] The principle that orders of court are binding and must be complied with
is foundational to the rule of law. As the Constitutional Court stated in Eke v
Parsons2, court orders are not merely advisory; they are binding and
enforceable, and failure to comply brings the administration of justice into
disrepute. A court order establishing the steps a municipality must take to
correct its billing records imposes a legal obligation that the municipality must
discharge. The failure to do so entitles an appli cant, at a minimum, to a
declarator of non-compliance.

[31] Where a municipality fails to comply with a court order directing the
correction of a municipal account, and the applicant is able to demonstrate what
the correct account balance should be, a cou rt exercising its declaratory
jurisdiction may ratify the applicant’s computation and declare the correct
balance. This is an appropriate exercise of the court's supervisory function over
the execution of its own orders, particularly where the respondent h as

2 Eke v Parsons (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC)
(29 September 2015).

persistently and without reasonable justification failed to furnish a corrected
account. In such circumstances, the Municipality's objection that it alone has
competence to calculate its revenues cannot serve as a shield for its own non -
compliance.


The statutory framework governing zoning and rating

[32] The Spatial Planning and Land Use Management Act 16 of 2013
(SPLUMA) provides the national legislative framework for land use
management. Municipal planning under SPLUMA encompasses the compilation
and review of spatial development frameworks and land use schemes, and the
control and regulation of the use of land within the municipal area. Section
26(1)(a) of SPLUMA provides that an adopted and approved land use scheme
has the force of law, and that al l landowners and users of land, including the
municipality itself, are bound by the provisions of such a land use scheme. A
municipality’s zoning scheme is therefore legally binding on the municipality. It
is not an administrative convenience capable of al teration by informal
instruction, internal resolution, or bilateral compromise.

[33] Under SPLUMA, any amendment to a land use scheme , including the
rezoning of a specific property , must be processed through the formal
procedures established in municipal by-laws enacted under the Act. Section 35
of SPLUMA requires each municipality to establish a Municipal Planning
Tribunal (MPT), consisting of at least five members drawn from municipal
officials and independent appointees with knowledge and experience of spatial
planning and land use management. Land use and land development
applications must be submitted to the municipality, processed through the MPT
or an authorized official, and determined in accordance with the relevant by -

laws. Regulation 14(1)(d) of the SPLUMA Regulations (GN R239, GG38594 of
23 March 2015) requires that municipalities provide, in their by -laws, for the
manner and extent of the public participation process for each type of land
development and land use application. By -laws enacted und er SPLUMA
invariably require the serving of notices to affected parties, the receipt and
consideration of objections, and, where objections are lodged, referral to the
MPT for determination. No mechanism exists in SPLUMA, the North West
Spatial Planning and Land Use Management Act, or the municipality’s own by -
laws for the zoning of a property to be altered by administrative instruction,
bilateral agreement, or informal ‘compromise’ outside the formal statutory
process.

[34] The reclassification of the zon ing of a property constitutes an
‘administrative action’ within the meaning of s 1 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). An administrative action that
materially and adversely affects a person’s rights or legitimate expectations
must satisfy the constitutional guarantee in s 33 of the Constitution , which
provides a right to just administrative action that is lawful, reasonable, and
procedurally fair. Section 3 of PAJA requires, as the minimum requirement of
procedural fairness, th at an affected person be given adequate notice of the
nature and purpose of the proposed action and a reasonable opportunity to make
representations. A municipality that unilaterally alters a property’s billing
classification, without initiating the formal rezoning process, without giving
notice to the affected property owner, and without affording any opportunity to
be heard, acts in violation of PAJA and in breach of the constitutional guarantee
of just administrative action. The purported ‘compromise’ reclassification of the
property to ‘residential’ in the present matter was not preceded by any formal
process, notice, or opportunity for the applicant to be heard. It was implemented

entirely outside any recognized statutory framework. Such an action is unlawful
and of no legal effect.

[35] The rates applicable to different categories of properties are determined
under the Local Government: Municipal Property Rates Act 6 of 2004 (MPRA).
Section 3 of the MPRA requir es a municipal council to adopt a rates policy
consistent with the Act, which must, among other things, determine the criteria
for levying different rates for different categories of properties, as contemplated
in s 8 of the MPRA. Permissible categories in clude ‘residential properties’,
‘agricultural properties’, and ‘business and commercial properties’. Section 4 of
the MPRA prescribes a mandatory process of community participation before a
municipality adopts its rates policy . The municipality must follow the
community participation process prescribed in Chapter 4 of the Municipal
Systems Act and make a copy of its draft rates policy publicly available for
inspection. The full municipal council must adopt the rates policy and must
accompany the municipalit y’s annual budget when it is tabled in terms of
section 16(2) of the Municipal Finance Management Act. Rates categories and
the tariffs applicable to each are not determined by municipal officials in
bilateral discussions with individual property owners. A ny reclassification of a
property’s rating category outside the formal MPRA process, without
amendment to the municipality’s lawfully adopted rates policy, is ultra vires and
of no legal effect. A municipality that assigns a property to a different rating
category by informal ‘compromise’ thereby acts in breach of its own legally
adopted rates policy and in violation of the MPRA.

[36] The Local Government: Municipal Systems Act 32 of 2000 (MSA)
provides, in section 74, that a municipality must have a tarif f policy for the fees
and charges for services it provides. Section 75 of the MSA requires that before
a municipality adopts or amends its tariff policy, it must follow a process of

community participation in accordance with Chapter 4 of the Act. A tariff
policy, once adopted by the municipal council, is binding on the municipality. It
may not be amended or departed from by administrative instruction or by
bilateral agreement with an individual ratepayer. Any change in the tariff
applicable to a specific pr operty outside the formal amendment process ,
whether framed as a ‘compromise’, an ‘adjustment’, or a unilateral
reclassification, constitutes a departure from the lawfully adopted tariff policy
and is therefore unlawful. The reading of these provisions together confirms that
the legislative framework permits no short -cuts. Rate and tariff classifications
are a matter of public law, not of private bargain.

[37] These principles were recently applied decisively by this Court. In N12
East Filling Station (Pty) Ltd v City of Matlosana and Others 3, this Court held
that municipalities are creatures of statute and may only act within powers
granted by legislation; that an adopted land use scheme has the force of law; and
that all aspects of planning a nd zoning must comply with the statutory scheme.
The Court further held that any amendment to a zoning designation effected
outside the prescribed statutory procedures under SPLUMA is ultra vires and of
no legal effect, even if the municipality purports to give it retrospective effect
through a subsequent council resolution or scheme amendment. The Court
emphasized that an ‘administrative reversion’ of zoning rights outside the
formal statutory process is legally untenable. No provision in SPLUMA or the
relevant by -law permits altering zoning rights without a formal application,
public participation, and a decision by the MPT or an authorized official. These
principles apply with equal force to the present matter. The Municipality’s
purported reclassificatio n of the property from ‘High Potential/Unique
Agricultural’ to ‘residential’ by way of informal agreement , without a formal

Agricultural’ to ‘residential’ by way of informal agreement , without a formal

3 N12 East Filling Station (Pty) Ltd v City of Matlosana and Others (M717/2023) [2026] ZANWHC 41 (27
February 2026).

SPLUMA application, without notice to the applicant, without community
participation, and in direct contravention of an extant court order, was ultra
vires, void, and of no legal effect from the outset.

[38] In respect of the oral submissions, this Court is mindful of the principles
governing motion proceedings and the applicable Plascon-Evans rule that
where factual disputes arise on the papers, the matter must be decided on the
respondent’s version unless that version is so farfetched or clearly untenable
that it may be rejected. 4 As will appear, the resolution of most of the factual
disputes in this matter does not turn on credibility assessments but on objective
documentary evidence, the municipal statements themselves.

Discussion

Whether the 2020 order was properly served

[39] Whilst this issue was not addressed in argument before me, i t remains
prudent to address it, as it is raised by the respondent in the papers. The
respondent raises a technical objection to service, contending that Mr. KH Tau,
who served the 2020 order, is a Sheriff of the Magistrate’s Court and lacked
authority to serve a High Court order, and that the order was not personally
served on the Municipal Manager.

[40] This objection is without merit. Section 43 of the Sheriffs Act 90 of 1986
empowers sheriffs to serve all processes of any court. A Sheriff of the
Magistrate’s Court is accordingly authorized to serve process of the High Court.
The returns of service reflect that the notice of motion for ancillary relief was

4 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84) [1984] ZASCA 51; [1984]
2 All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984).

served on 13 October 2022 on the legal adviser at the Municipality’s principal
place of business. T he 2020 order itself was served on the Municipality’s legal
department, as evidenced by the return of service dated 14 July 2020.

[41] Service on a municipality at its principal place of business, upon a person
who appears to be in authority, constitutes proper service. The respondent’s bare
denial is disingenuous and unsupported by any countervailing evidence. The
voluminous correspondence between the parties’ attorneys, including
correspondence from the Municipality’s own attorneys responding to demands
to implement the 2020 order, establishes unequivocally that the Municipality
was at all material times aware of the 2020 order.

[42] In any event, actual knowledge of the order, rather than strict proof of
formal service, is the governing consideration fo r establishing non-compliance.
The correspondence establishes beyond doubt that the respondent had actual
knowledge of the 2020 order throughout the period under consideration. The
service objection fails.

Whether the Municipality complied with the 2020 order

[43] At the hearing on 13 March 2026, counsel for the applicant, Adv Wijnbeek,
methodically took the Court through the documentary record in the bundle,
including the municipal account statements. I deal with the oral submissions and
the documents in turn.

[44] Counsel drew the Court’s attention first to the account statement as at 30
September 2018 (bundle at 002 -59). Before October 2018, the statement
reflected three columns of agricultural rate charges, modest rates that were paid
in f ull. From October 2018, business/commercial rates were levied, and a

balance of more than R1.2 million suddenly appeared in column six from the
left under the heading ‘wrong rates’. Counsel submitted, correctly in my view,
that this single document encapsulates the entire injustice done to the applicant.
A change in categorization for which the Municipality has never furnished any
coherent justification.

[45] The Municipal Planning Tribunal’s decision of 08 March 2022 (at 002 -30
to 002-42) was taken to the Court. That decision confirms, at paragraph 1.3, that
the property is currently zoned ‘High Potential Unique Agriculture’, and at
paragraph 1.4, that the existing use is with public resort land use rights. Any
proposed rezoning (to Residential 2 and Speci al zones) is prospective,
conditional, and subject to a precedent condition requiring the cessation of the
resort operation. The Municipality participated in those proceedings. It follows,
as counsel submitted, that the Municipality’s own planning authorit y confirmed
in March 2022 that the use had been consistent with the agricultural zoning and
the 2001 permit throughout. Yet, the Municipality continued to bill on an
incorrect classification.

[46] Counsel further referred the Court to paragraph 3.2 of the Tribunal
decision, which imposed as a condition precedent the cessation of the existing
public resort use and the demolition of existing structures before the proposed
rezoning could take effect. This underscores that, as at the date of the Tribunal
decision, and by necessary implication throughout the period of the
Municipality’s incorrect billing, the property remained zoned as
agricultural/public resort, exactly as the 2020 order directed.

[47] The document at 002 -180, being the original provincial per mit of 2001,
was also canvassed in argument. That document confirms the authorized use
from 23 May 2001. Clause 23 of the permit stipulates that if the chalets or flats

were to be occupied as permanent residences, the local municipality would be
entitled to require township establishment, a process never invoked. The use has
always been consistent with the permit, and the property has never been
occupied as a permanent residential development.

[48] The invoices were then considered sequentially. The June 2 020 invoice
(002-43) shows a balance of approximately R1.9 million, business/commercial
rates of approximately R9 000 per month, and the pre -order position. The
March 2022 invoice (002 -44) shows an opening balance of approximately R2
million, with sewerage charges and rates now levied as ‘residential’, not
agricultural as directed. The October 2022 invoice (Annexure RLM2 at 002 -96)
shows a balance brought forward of R1 383 166.80. Throughout these invoices,
the applicant was making payments; this is a commo n cause, but the account
continued to be debited with incorrect charges, neutralizing those payments.

[49] The respondent’s answering affidavit (paragraphs 13, 16, 33, 35, 49, 54, 58,
and 59) was then reviewed in oral argument. Counsel’s analysis was
compelling. Paragraph 13 (at 002 -75) attributes the business classification to
‘houses that cannot be correct, directly contradicted by the Tribunal’s own
findings. Paragraph 16 alleges that an amount of just over R1 million was
reversed and a credit passed, b ut this is irreconcilable with the invoices.
Paragraph 33 (at 002 -79) discloses the fundamental problem. The Municipality
states that ‘as a compromise’ the parties agreed to zone the property as
‘residential’. This characterization must be firmly rejected. A municipality has
no competence to alter a billing classification by informal ‘compromise’ in
disregard of an extant court order. A court order directing ‘High
Potential/Unique Agricultural’ zoning mandates precisely that classification, and
no lesser or different classification can lawfully be substituted without a formal
variation of the order.

[50] The ‘compromise’ reclassification of the property to ‘residential’ was not
merely a departure from the 2020 court order . It was independently unlawful
under the interlocking legislative framework surveyed above. The
Municipality’s residential billing classification was never effected through the
formal rezoning process prescribed by SPLUMA and the applicable by -laws.
No application was lodged with the Municipal Planning Tribunal. No notice was
given to the applicant. No community participation process was undertaken. No
amendment was made to the Municipality’s land use scheme. No amendment
was made to the Municipality’s rates policy adopted in accordance with ss 3 and
4 of the MPRA. No amendment was made to the Municipality’s tariff policy
adopted under ss 74 and 75 of the MSA. What the Municipality purported to
achieve by ‘compromise’ was not a legal reclassification; it was an unauthorized
administrative act with no statutory foundation. As this Court held in N12 East
Filling Station , a zoning alteration effected without compliance with the
prescribed statutory procedures is ultra vires and of no legal effect, however it
may be dressed up in administrative or contractual language.

[51] The PAJA dimension of the Municipality’s conduct further reinforces this
conclusion. The applicant, as the property owner whose rights were directly and
materially affected, was entitled under s 3 of PAJA to adequate notice of the
nature and purpose of any proposed alteration to its zoning and rating category,
and to a reasonable opportunity to make representations before any such
alteration was implemented. None of these requirements was satisfied. The
purported ‘agreement’ reached at the June 2021 meeting cannot amount to a
waiver of the applicant’s statutory rights under PAJA, nor can it supply the
missing statutory authorization for a process that was never undertaken. The
applicant was not consenting to a lawful rezoning; it was attempting, through

applicant was not consenting to a lawful rezoning; it was attempting, through
the mechanisms available to it, to secure implementation of the 2020 court

order. A municipality cannot rely on a bilateral arrangement, however
characterized, to validate what was in law an ultra vires act taken without
statutory authority and in violation of the applicant’s constitutional right to just
administrative action. The Municipality’s conduct in purporting to give effect to
a ‘compromise’ classification compounded, rather than remedied, its non -
compliance with the 2020 order.
[52] Paragraph 35 (at 00 2-80) alleges that approximately R1 million was
reversed and some R188 000.00 to R300 000.00 charged in its stead. This does
not reconcile with the invoices. Paragraph 54 (at 002-84) states that changes and
corrections were implemented in August 2021, plai nly contradicted by the
March 2022 and October 2022 invoices. Paragraphs 58 and 59 (at 002 -81 and
002-85) assert that the property is zoned and reflected as ‘residential’. But the
property is not residential. The Municipality cannot unilaterally reclassify as
‘residential’ what the 2020 order directed should be ‘High Potential/Unique
Agricultural’.

[53] The respondent’s contention that the Municipality complied with the 2020
order must be rejected in its entirety for the following reasons. First, the 2020
order required the Municipality to rezone the property as ‘High
Potential/Unique Agricultural’. It conferred no authority to re -categorise the
property as ‘residential’. The Municipality’s purported decision to designate the
property as ‘residential’ was a unilateral and impermissible departure from the
express terms of the court order. If the Municipality genuinely believed that
‘residential’ was the correct classification, its proper recourse was to seek a
variation of the order or to appeal against it. I t did neither. Second, the
Municipality’s own Planning Tribunal confirmed in March 2022 that the
property’s zoning remains ‘High Potential/Unique Agriculture’. It is
fundamentally inconsistent and unlawful for the Municipality to participate in

fundamentally inconsistent and unlawful for the Municipality to participate in
and accept a Tribunal determination confirming agricultural zoning while

maintaining a ‘residential’ classification on its billing system. Third, the
February 2022 letter of demand from Ntiyis Consulting claiming R1 823 724.22
is itself compelling objective proof tha t the Municipality’s system at that stage
continued to reflect a massive arrear balance. Had the account been corrected in
August 2021, there would have been no basis for issuing that demand. Fourth,
invoices rendered after August 2021 continued to reflect incorrect charges. The
applicant has produced invoices demonstrating that levies for refuse removal
and sewerage remained on the account in direct contravention of paragraphs
2.1.2 and 2.1.3 of the 2020 order. Fifth, the October 2022 statement (Annexure
RLM2 at 002 -96) reflects a balance of R1 383 166.80, the bulk of which, R1
273 310.82, is more than 180 days in arrears. If the Municipality had fully
reversed all incorrect charges from October 2018, no such historic arrear
balance could persist. Its conti nued presence demonstrates that the reversals
were incomplete and that the incorrect billing was never fully remedied.

[54] I accordingly find that the respondent failed to give effect to prayers 1,
2.1.1, 2.1.2, and 2.1.3 of the 2020 order. The zoning wa s not corrected to ‘High
Potential/Unique Agricultural’; it was unilaterally reclassified as ‘residential’.
The property rates were not replaced with the appropriate agricultural tariffs.
Penalties and interest arising from the incorrect zoning were not fu lly
withdrawn. Items erroneously billed, including levies for refuse removal and
sewerage, were not removed. The respondent’s purported compliance with the
2020 order is, on the evidence, illusory.

The extended period of non-compliance: September 2022 to September 2025

[55] The case management order of 29 August 2025 directed the parties to place
before the Court the municipal statements for the period September 2022 to
September 2025. The stated purpose, consistent with the applicant’s prayer 3,

was to enable the Court to determine the correct account balance as at the most
recent statement date and to assess what, if any, amount the applicant is
genuinely indebted to the Municipality.

[56] The municipal statements for the extended period (Annexures A1 and A2 to
the Supplementary Affidavit of Mr. Ras) demonstrate a consistent and unbroken
pattern. The Municipality continued throughout the period September 2022 to
September 2025 to bill the applicant on a ‘residential’ classification rather than
the ‘High Potential/Unique Agricultural’ classification directed by the 2020
order. The residential tariff was consistently applied to the property,
notwithstanding that no formal rezoning to residential had ever been effected
and notwithstanding the Planning Tribun al’s March 2022 confirmation of the
agricultural classification.

[57] The applicant continued to make payments throughout the extended period;
this, too, is common cause on the papers. However, because the rates applied
were not those set out in the 2020 order, each month’s billing perpetuated the
initial error, and the payments made by the applicant against inflated invoices
do not reflect what the applicant would legitimately owe under the correct tariff.
The respondent’s supplementary opposing affidavit of Mr. Khuduge does not
seriously engage with the specific billing entries in the extended period
statements. The Municipality maintains its position that the residential
classification is correct by agreement and attributes the remaining balance to the
applicant’s payment allocation. As I have found above, the residential
classification is not and was not an agreed or lawful substitute for the
agricultural classification directed by the court. The respondent’s position on the
extended period is no more sustainable than its position on the original period.

Ratification of the applicant’s computation of the account balance

[58] The applicant persists in prayer 3 of the notice of motion, seeking
ratification of its computation of the correct account balance. The original
computation (Annexure SFA13) covered the period 28 February 2018 to 15
August 2022 and reflected a balance of R189 028.00. The Supplementary
Affidavit of Mr. Ras (Annexures A1 and A2) extends the computation through
September 2025.

[59] The respondent objects to ratification because the exclusive competence to
calculate municipal revenues vests in the Municipality by operation of law. This
objection, while superficially attractive, cannot be sustained in the
circumstances of this matter. It is correct that the Municipality bears the primary
obligation to calculate and issue its own billing. However, that proposition
cannot serve as a shield for a municipality that has persistently refused to
comply with a court order. To uphold the obj ection would be to permit the
Municipality to benefit from its own non -compliance, a result that would be
unconscionable and contrary to principle.

[60] The computation is a meticulous, document based exercise. It reworks the
account from 28 February 2018 by: (a) applying the correct ‘High
Potential/Unique Agricultural’ tariffs throughout; (b) reversing all charges
improperly levied under the ‘Business/Commercial’, ‘Industrial’, or
‘Residential’ classifications; (c) reversing all associated penalties and interest
arising from the incorrect classification; (d) removing all levies for refuse
removal and sewerage (services not rendered); and (e) crediting all payments
actually made by the applicant throughout the entire period. The respondent has
not filed any competing computation that challenges the arithmetic of the
applicant's figures. Its challenge is to the competence of the exercise, not to its
accuracy.

[61] I am satisfied that the computation is c onsistent with the terms of the 2020
order. It correctly applies the directed tariff throughout both the original and
extended periods. All payments made by the applicant are fully credited, and
only legitimate charges in the correct category are retained. The computation is
not arithmetically incorrect.

[62] In the exercise of this Court’s supervisory declaratory jurisdiction, and
having regard to the Municipality’s persistent failure to furnish a corrected
account notwithstanding more than five years hav ing elapsed since the 2020
order, I ratify the applicant’s computation and declare the correct account
balance in the terms set out in the order below.

[63] The order also provides for the period from 01 September 2025 to date to
avoid any anomalies that may arise after the recalculation period covered by the
directive issued by the Judge President following case management of the
matter.

Indebtedness of the applicant to the Municipality

[64] In determining what amount, if any, the applicant is indebte d to the
Municipality, it is necessary to distinguish between: (a) the inflated and
unlawfully imposed charges which must be reversed in full; and (b) the
legitimate agricultural rate charges properly applicable to the property
throughout the relevant period, less payments already made.

[65] On the applicant’s computation, which I accept for the reasons set out
above, the net balance after applying the agricultural tariff, crediting all
payments, and removing all unlawfully imposed charges and penalties, is a

credit of R8 005.17 in the ap plicant’s favour as at 31 August 2025. The
Municipality’s own statement of account (Annexure A1) is dated 30 September
2025 and reflects an ostensible balance of R1 698 863.07 as purportedly owing
by the applicant. The variance between the Municipality’s c laimed balance and
the applicant’s corrected balance is accordingly R1 706 868.24. That variance
represents, in its entirety, the charges, penalties, and interest that the
Municipality has continued to levy in persistent disregard of the 2020 order, and
which it has never reversed. The respondent has not filed any credible
computation demonstrating that the applicant owes an amount greater than that
reflected in Annexure A2. The suggestion that the applicant owes in excess of
R1.3 million (as the October 20 22 statement suggested), or the R1 698 863.07
now claimed in the September 2025 statement, is wholly inconsistent with the
undisputed fact that the applicant was consistently on the correct agricultural
tariff, consistently paid, and consistently current, before October 2018.

[66] The corrected balance represents the only amount for which the applicant
can lawfully be held liable. Any excess claimed by the Municipality over and
above that amount arises entirely from the unlawful billing that the 2020 order
directed should be reversed. I accordingly declare the correct balance in the
order below, and the Municipality is not entitled to recover any amount in
excess of that balance in respect of the pre -correction period charges arising
from the incorrect business/commercial/residential classification. Adv Wijnbeek
intimated that the applicant is prepared to forego the credit of R R8 005.17 in its
favour, in the interest of bringing this matter to a close. Fairness to my mind
dictates that the applicant, having been put to unnecessary cost in bringing the
applications brought about by the conduct of the officials of the applicant, is
entitled to the credit on its account.

Costs

[67] The applicant has been substantially successful in this application. It has
obtained the declaratory relief sought in prayers 1, 3, and 4 of the notice of
motion. The general rule is that costs follow the event. The applicant seeks costs
on the attorney -client scale. The 2020 order itself was made with costs on that
scale. The resp ondent’s unreasonable conduct since that order, including
persistent failure to rectify the account, the issuing of further demands through
debt collectors in direct disregard of the order, the continued application of a
patently incorrect classification f or more than five years, and unmeritorious
opposition to this application, warrants a further award on the same scale.

[68] The respondent’s sustained failure to give effect to an order of court over
a period of more than five years, the repeated deployment of fresh deponents in
successive rounds of affidavits who rely on second -hand information and
reiterate untenable positions, and the maintenance of a legally impermissible
‘residential’ classification as a ‘compliance’ position, warrant a puniti ve cost
order. The award of costs on the attorney-and-client scale is appropriate for both
the original application and the present ancillary proceedings.

Order

[69] In the result, the following order is made:

1. The applicant is granted leave to bring this application for ancillary
relief in terms of prayer 4 of the order granted by this Court on 13
August 2020 under case number M303/2020.

2. It is declared that the respondent has failed to give full effect to
prayers 1, 2.1.1, 2.1.2, and 2.1.3 o f the order granted by this Court
on 13 August 2020 under case number M303/2020.

3. The applicant’s computation of the account for Portion 399 of the
Farm Waterkloof 305 JQ (account number 0[...]), as set out in
Annexure SFA13 to the Supplementary Found ing Affidavit and as
updated in Annexures A1 and A2 to the Supplementary Affidavit of
Mr PL Ras filed pursuant to the case management order of 29
August 2025, is ratified.

4. The applicant’s account with the respondent in respect of Portion
399 of the Far m Waterkloof 305 JQ (account number 0[...]) is
declared, based on the applicant’s corrected computation as ratified
in paragraph 3 above, to reflect a credit balance of R8 005.17 in
favour of the applicant as at 31 August 2025. The applicant owes
no amou nt to the respondent in respect of that account; on the
contrary, the respondent is indebted to the applicant in the sum of
R8 005.17.

5. The respondent is directed, within 30 days of the date of this order,
to correct its billing records to reflect accou nt number 0[...] at the
balance of R 8005.17 in credit, as declared in paragraph 4 above,
and to ensure that all future billing of the applicant’s account is
effected based on the ‘High Potential/Unique Agricultural’ tariff in
accordance with the 2020 or der, until changed in accordance with
the law.

6. The billing records for the period 01 September 2025 , with due
regard to paragraph 5, must be corrected to reflect the zoning of the
property as ‘High Potential/Unique Agricultural’.

7. The respondent is ordered to pay the costs of this application,
including all costs incurred in connection with the supplementary
affidavits filed pur suant to the case management order of 29
August 2025, on the scale as between attorney and client.



________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT
HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG


Appearances

For the Applicant: Adv D H Wijnbeek
Instructed by: Andreas Peens Attorneys
c/o Maree & Maree Attorneys
Mahikeng

For the Respondent: Adv G K Seleka
Instructed by: Van Velden- Duffey Attorneys
c/o Van Rooyen, Tlhapi Wessels Attorneys
Mahikeng