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[2002] ZASCA 6
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Weenen Transitional Local Council v Van Dyk (399 / 2000) [2002] ZASCA 6; [2002] 2 All SA 482 (A); 2002 (4) SA 653 (SCA) (14 March 2002)
REPORTABLE
Case Number : 399 / 2000
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between
WEENEN TRANSITIONAL LOCAL COUNCIL
Appellant
and
S J VAN DYK
Respondent
Composition of the Court
: Hefer AP, Howie,
Olivier, Farlam and Brand JJA
Date of hearing
: 4 March 2002
Date of delivery
: 14 March 2002
SUMMARY
Local authority - Ordinance requiring four notices before rates
become due and payable - failure to comply.
________________________________________________________________
J U D G M E N T
________________________________________________________________
OLIVIER J A
[1]
This appeal has its origin in an action
instituted in the Weenen Magistrate's Court by the appellant, a local
council, against the
respondent, a property owner within the
appellant's area of jurisdiction and thus a ratepayer, for the
payment of rates in respect
of the properties owned by the
respondent, allegedly due and payable on 30 January 1996. The only
defence relevant to the appeal
raised by the respondent was that the
amounts claimed were not due and payable because the appellant had
not complied with the provisions
of s 166 of the Natal Local
Authorities Ordinance, 1974 ("the Ordinance"). This
defence was upheld by the magistrate
and, on appeal to the Natal
Provincial Division, also by that Court. The latter decision is
reported in
2000 (3) SA 435
(N). Leave to appeal to this Court was
granted by the Natal Provincial Division.
[2]
It is common cause that the powers and duties
of the appellant and the rights and obligations of the respondent as
ratepayer relevant
to the issues now under consideration are to be
found in the Ordinance, properly interpreted.
[3]
The appellant is empowered by ss 148, 149 and
150 to assess and levy, once in every financial year, upon all the
immovable property
within the borough, a general rate, a water rate
and a sewerage rate. The financial year ends on 30 June in every
year.
[4]
The procedure for collecting the assessed
rates is laid down in ss 105 and 166 of the Ordinance. Section 105
(1) obliges the appellant
('Every council shall â¦') by no later
than 30 June of a given financial year, to frame estimates of its
revenue and expenditure
for the following financial year and to
assess the general rate, water rate and sewerage rate payable by the
owner of immovable property
in the borough.
[5]
The next step to be taken by the appellant is
then laid down in s 105 (1A) which provides that, as soon as
possible after the estimates
have been framed and the rates assessed
as required by s 105 (1)
' ⦠the council shall publish in a newspaper [published in the
Province and circulating in the area under the jurisdiction of the
appellant - see s (1) (
1
)]
a notice containing an abstract of such estimates and stating -
(a) the amounts at which such rates have been assessed, and
(b) that such estimates will be available for inspection at the
municipal office for a period specified in such notice but not being
less than seven days after the publication of the said notice.'
[6]
The next step is then laid down in s 166.
It reads as follows :
'The general rate, water rate and sewerage rate shall be assessed in
accordance with section 105 (1) in respect of every financial
year
and, after the expiration of the period contemplated by section 105
(1A), the council shall publish in a newspaper a notice
once a week
for two consecutive weeks at intervals of not less than five days
specifying the amounts at which such rates have been
so assessed
and
the final date in such financial year for the payment thereof
.'
(My emphasis)
[7]
Section 167 (1) then provides that
'The rates in respect of any financial year shall become due and
payable one month after the first publication of the notice
contemplated
by section 166, and shall be paid on or before the final
date for their payment as set forth in such notice â¦'
[8]
Then follows s 172 (2), which provides as
follows
'After the first publication of the notification referred to in
section 167 [i.e. the first publication of the notice required by
s
166], the collector [I e the Town Treasurer - see s 172 (1)] shall
give notice to the owner of every rateable property, which
notice
shall state the amount of rates owing in respect thereof and the
final date for payment and shall set out the number and description
of the property and the value thereof as shown in the valuation
roll.'
[9]
Failure by a ratepayer to pay the assessed
rates after the final date for their payment attracts a penalty of
18%
per annum
- see s 171.
[10]
An analysis of the scheme of assessing,
levying and collecting rates, as sketched above, shows that the
appellant was obliged to
issue four notices before it could claim
payment of the rates :
(a)
a notice in terms of s 105 (1A)
which must
state the amounts at which the rates have been assessed and allowing
at least seven days after the date of the said publication
for
inspection of the estimates and assessment; and
(b)
two notices in terms of s 166
(i) the first of which must be given after the expiry of
the period of seven days mentioned in (a) above;
(ii) the second notice must be published not less than
five days later, but in the week following upon the publication of
the first
s 166 notice;
(iii) both of which must specify the amounts at which
the rates have been assessed and
(iv) both of which must specify the final date for the
payment thereof. By virtue of the provisions of s 167 (1) the rates
become
due and payable one month after the first publication of the s
166 notice.
(c)
a notice to each ratepayer in terms of s 172 (2)
given after the publication of the first notice in terms of s 166,
stating the amount of rates payable by that ratepayer and the
final
date for payment.
[11]
In the present case the appellant caused to
be published only one notice, dated 23 June 1995, which read as
follows:
WEENEN TRANSITIONAL
COUNCIL
NOTICE
It is hereby notified
in terms of Section 105 of
the Local Autnorities
Ordinance, Natal (Ordi-
nance 25 of 1974) that
Estimates for the1995/96 Financial year have been adopted by
the Town
Council and an extract
thereof is set out hereun-
der.
Expenditure
Income
Rates and
General Services R1
319 418 R1 222 027
Estimated Deficit R
97 391
Total
R1 222 027 R1 222 027
Water Service
R 91 570 R 189 974
Estimated Surplus R
98 304
Total
R1 411 901 R1 411 901
A general rate of
1,7687 cents in the Rand on
Agricultural Land
Valuation and 8.05 on Resi-
dential and Commercial
Valuations has been
assessed
The final date for
payment of these rates has been fixed as the 30 January 1996.
The Estimates will lie
open for inspection at the office of the Town Clerk for a
period of seven
days from the date of
Publication hereof.
Published at Weenen
this 23th day of June 1995.
A Botes
Chief Executive /
Town Clerk
[12]
The crux of the appeal lies in the
respondent's allegation, unambiguously raised in the magistrates'
court and in the court
a quo
, that there had not been any
compliance with the provisions of s 166 in that
(a) The published notice itself expressly states that it
is being given in terms of s 105. No mention of s 166 having been
made,
it cannot be interpreted as a partial compliance with the
requirements of s 166.
(b) Section 166 contemplates two notices, the first of
which can only be published after the seven day period envisaged by s
105 (1A).
The appellant alleges that the first publication in terms
of s 166 was given simultaneously with the publication of the s 105
(1A)
publication, more exactly in the sentence included in the
published notice reading
'The final date for payment of these rates has been fixed as the
30
th
January 1996.'
The respondent avers that if compliance with the first
notice in terms of s 166 was intended, then such notice was premature
and invalid.
(c) Section 166 requires two notices, at least five days
apart. Even if it is assumed that a first notice had validly been
given
in the published notice, there was no publication of a second s
166 notice. This was common cause.
[13]
It seems to me that the correct approach to
the objection that the appellant had failed to comply with the
requirements of s 166
of the Ordinance is to follow a commonsense
approach by asking the question whether the steps taken by the local
authority were effective
to bring about the exigibility of the claim
measured against the intention of the legislature as ascertained from
the language, scope
and purpose of the enactment as a whole and the
statutory requirement in particular (see
Nkisimane and Others v
Santam Insurance Co Ltd
1978 (2) SA 430
(A) at 434 A - B).
Legalistic debates as to whether the enactment is peremptory
(imperative, absolute, mandatory, a categorical
imperative) or merely
directory; whether 'shall' should be read as 'may'; whether strict
as opposed to substantial compliance
is required; whether delegated
legislation dealing with formal requirements are of legislative or
administrative nature,
etc
may be interesting, but seldom
essential to the outcome of a real case before the courts. They
tell us what the outcome of the
court's interpretation of the
particular enactment is; they cannot tell us how to interpret.
These debates have
a posteriori
, not
a priori
significance. The approach described above, identified as ' ... a
trend in interpretation away from the strict legalistic to the
substantive' by Van Dijkhorst J in
Ex parte Mothuloe (Law Society
Transvaal, Intervening)
1996 (4) SA 1131
(T) at 1138 D - E, seems
to be the correct one and does away with debates of secondary
importance only.
[14]
It seems to be clear that the object
of s 105 (1A) was to inform all the ratepayers in the particular
borough of the council's
estimates
of its income and
expenditure for the next financial year, and of the amount of the
assessed rates. The estimates are to be made
available for
inspection at the municipal office for a period of at least seven
days after the publication of the notice. There
can be no doubt, as
the court
a quo
rightly concluded, that where, upon inspection
of the estimates, ratepayers should discover that the matters
required by s 105 (2)
to (6) to be taken into account in arriving at
the estimates have not properly been accounted for or that provision
was made in the
estimates for expenditure which is not authorised by
the Ordinance, they would be entitled to approach a court for relief
by way
of interdict or mandamus. I am also of the view that in
appropriate cases the council's decision as regard estimates and
assessments
can be taken on review. The object of the notice
required by s 105 (1A) is clearly not to place the ratepayer
in
mora
or to demand payment, but to afford an opportunity to object
to the estimates and assessment.
[15]
On the other hand, s 166 envisages a stage
where the period mentioned in s 105 (1A) [
i e
at least seven
days after the publication of the notice envisaged thereby] has
elapsed. It requires specification of the amounts
at which the
rates have been assessed and of the final date for payment thereof.
Clearly, s 166 serves a purpose other than that
of s 105 (1A). It
prepares the way for collection of the amounts payable, and it fixes
a date of
mora
. The rates become
due and payable
after the date of publication of the first s 166 notice and that
notice also fixes the
final
date of payment (see s 167 (1).
The purpose of the second publication of the notice required by s 166
is obviously to ensure maximum
publicity.
[16]
While one might have been able to debate the
necessity and importance of the second notice required by s 166 if
there had been due
compliance in respect of the first notice, the
question in the matter before us is whether there was a valid first
notice. In my
view, the answer must be no. The published notice
purports, in its own terms, to be a s 105 (1A) notice. It does not
now lie
in the mouth of the council to say that it is a s 166 notice.
If it was in truth intended to be a s 166 notice, it was given
prematurely.
It overlaps the period during which the estimates and
assessment were lying for inspection. And, finally, it was not
followed
up by the second notice required by s 166. The fact that a
notice to individual ratepayers is required by s 172 (2) cannot
detract
from the necessity of the notifications required by s 166 -
on the contrary, it emphasises the legislature's concern to ensure
that ratepayers are properly and optimally informed of their
obligations. In any event, compliance with s 172 (2) had also not
been proved.
[17]
In the result, I am of the view that there
was no compliance with the requirements of s 166 in the present
matter. The amounts
claimed by the appellant were not due and
payable when the action was instituted. The claim was consequently
rightly dismissed.
In the result, the appeal is dismissed with costs.
OLIVIER JA
CONCURRING :
HEFER AP
HOWIE JA
FARLAM JA
BRAND JA