City of Cape Town and Other v Robertson and Other (CCT 19/04) [2004] ZACC 21; 2005 (2) SA 323 (CC); 2005 (3) BCLR 199 (CC) (29 November 2004)

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[2004] ZACC 21
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City of Cape Town and Other v Robertson and Other (CCT 19/04) [2004] ZACC 21; 2005 (2) SA 323 (CC); 2005 (3) BCLR 199 (CC); 67 SATC 176 (29 November 2004)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 19/04
THE CITY
OF CAPE TOWN                                                                          Â
First
Applicant
MINISTER OF PROVINCIAL AND LOCAL
GOVERNMENT                                                                                          Â
Second
Applicant
versus
ANITA MARIE ROBERTSON                                                                    Â
First
Respondent
GUY TREVOR ROBERTSON                                                                Â
Second
Respondent
Heard on         :           7 September
2004
Decided on     :           29 November
2004.
JUDGMENT
MOSENEKE J:
Introduction
[1]
Mrs and Mr Robertson sought and obtained
declaratory and interdictory relief from the Cape High Court (High Court)
restraining the
City of Cape Town (the City) from levying and recovering
property rates based on property valuations contained in a provisional

valuation roll.  The High Court also granted a declarator to the effect that
section 21 of the Local Government Laws Amendment
Act, 2002
[1]
(Amendment Act) is inconsistent
with the Constitution and to that extent invalid.  It suspended the orders for
a year from the
date of the conclusion of proceedings in this Court to allow
the competent authorities to correct the defects in the law.
[2]
[2]
As required by subsection 172(2)(a) of the
Constitution, the High Court has referred its order of constitutional
invalidity to this
Court for confirmation.  Also before us is an appeal.  The
City, as first appellant, and the Minister of Provincial and Local
Government
(Minister), as second appellant, are aggrieved by the decision of the High
Court.  Their appeal against the order of
constitutional invalidity lies
directly to this Court in terms of subsection 172(2)(d) of the Constitution and
rule 16(2) of the
rules of this Court.  The City appeals also against the other
orders of the High Court that are not subject to confirmation.Â
There was
however no objection to this procedure.  It is not necessary to decide whether
that appeal lies as of right to this
Court in terms of subsection 172(2)(d).Â
Even if we were to treat the appeal as an application for leave to appeal
directly to
this Court, it would clearly be in the interests of justice to
grant the application, which would concern constitutional matters.
[3]
The appeal concerns the validity of the
provisional valuation roll of property within the area of jurisdiction of the
City, compiled
and advertised for inspection and
objection on 21 May 2002 and the
validity of the decision of the City to levy in effect property rates on the
basis of that roll
as determined by its budget resolution for the 2002/2003
municipal financial year.
[3]
Â
The appeal also raises the question whether, if the City’s principal grounds of
appeal are resolved in its favour, it remains
necessary to reach the
constitutional challenge against the Amendment Act.  And if so, whether the
declaration of constitutional
invalidity ought to be confirmed by this Court.
[4]
The City is a municipality with legal
personality constituted as such in terms of Chapter 2 of the provisions of the
Local Government:
Municipal Structures Act, 117 of 1998 (Structures Act).  Its
power to value property and to levy property rates is under challenge.Â
On the
other hand, the Minister sponsored the enactment of the impugned national
legislation and is the member of cabinet responsible
for its implementation.Â
For that reason, his interest in the appeal is confined to the orders of the
High Court that declared
section 21 of the Amendment Act inconsistent with the
Constitution and invalid; suspended the declaration of invalidity and directed
him
together with the City to pay the costs of the application.
Facts
[5]
The Robertsons are an elderly couple.  They live
in a house owned by Mrs Robertson, the first respondent, situated on erf 1829,

Camps Bay.  In 1969 the Robertsons purchased the erf as a vacant and unimproved
lot for R7 250.  Soon thereafter they built a
house on it at a cost of some R15
000.  Although registered in her name, she and her husband, the second
respondent, consider
the house to be their joint property.
[6]
The residential area of Camps Bay, nestled on
the shores of the Atlantic Ocean, has become one of the most desirable and
expensive
residential areas in South Africa.  In the last applicable general
valuation of the property conducted in 1979, the property was
valued at R52
510, comprising land value of R8 600 and improvements value of R43 910.
 A little over two decades later, the City valued
the property at R1, 7 million.  The valuation is made up of land value of R460

000 and building value of R1 240 000.  Premised on this valuation, for purposes
of the 2002/2003 municipal financial year, Mrs
Robertson is liable for R16
321.80 in property rates for the year.  This assessment translates to R1 360.15
in property rates
per month.  In addition, the City has estimated her liability
for a sewerage rate of R588.12 and a refuse rate of R718.56 for a
year.
[7]
The total rates
liability of the Robertsons appears to have more than doubled.  Before 1 July
2002 their rates bill was R8 203.44
over a year and R683.62 every month.  The
Robertsons are unhappy.  They say they cannot afford the increased rates
, which they describe as exorbitant in relation to their overall
budget.Â
They seek relief from what they
regard as unfair and onerous property rates.  This they hope to do by impugning
the legal validity
of the property valuation roll and the resultant property
rates.
[8]
It is now
convenient to turn to a brief account of the background events, which gave rise
to the predicament of the Robertsons over
escalated property valuation and
rates.  These facts are by and large common cause between the parties and are
most helpfully
rendered in the judgment of the High Court.
[4]
Â
Accordingly, a brief sketch of the events should suffice.
Local government transition
[9]
On 5 December 2000 the City was established as a
municipality in terms of the provisions of sections 12,
[5]
14
[6]
and 16
[7]
of the Structures Act.  This
event marked the final phase in the long and intricate process of transforming
racially based municipalities
into democratically determined local government
in the Cape Metropolitan Area (CMA).  The process entailed the integration of
60 local authorities into a single municipality – the City of Cape Town.
[8]
[10]
Preceding the final phase, there were two
earlier stages of transition governed by the Local Government Transition Act, 209
of 1993
(Transition Act).
[9]
Â
The terms of this legislation were negotiated as part of the political and
constitutional settlement ahead of the commencement
of the interim Constitution
in April 1994.  The text of the Transition Act had been agreed upon and adopted
on 18 November 1993.
[10]
Â
The legislation commenced on 2 February 1994.  That signalled the start of the
first phase known as the pre-interim phase,
[11]
which ran until the first democratic local government elections held for all
municipalities on 29 May 1996.  The second phase,
known as the interim phase,
[12]
started from the local
government elections until 5 December 2000 when the Structures Act took effect
in respect of municipal areas
determined under the Local Government: Municipal
Demarcation Act, 27 of 1998 (Demarcation Act).
[11]
Ahead of the inception of the final phase, and
by mid-1999, municipalities in the CMA namely, the Cape Metropolitan Council
(CMC)
and the 6 metropolitan transitional local councils found it pressing to
compile a metropolitan-wide general valuation of property.Â
Until then local
authorities within the CMA had been saddled with different valuation rolls and
divergent base dates.  Some valuation
rolls were outdated and even more than 20
years old.  There were discrepancies between “rates values” and actual values
of
property.  Moreover, in some metropolitan transitional local councils,
across the board uniform property rates increases were imposed.Â
This did not
help matters.  These increases led to complaints of an unfair distribution of
the rates burden and a perception and
complaint, in some quarters, of unfair
discrimination.
[13]
[12]
An additional and not insignificant integration
challenge for the CMA was that value based property rates could not be charged
in
black residential areas previously administered under the Black Local
Authorities Act, 1982.
[14]
Â
There had been no valuation of property in these segregated neighbourhoods.
[13]
In 1997 the Council of the previous City of Cape
Town completed but did not implement a new valuation roll on a “land only”
basis.  The Council abandoned this plan because in 1998 subsection 159(1)
[15]
of the Constitution was
amended by extending the term of the municipal councils from four to five
years.  In the same year the
Structures Act was enacted and provided in effect
for the establishment of a single metropolitan municipality to replace the 6 metropolitan

local councils in the CMA and the CMC.  It became clear that a common valuation
methodology based on land and improvements had
to be followed in the CMA and
that national legislation
[16]
would impose a requirement of a single valuation roll for all property.
[14]
These cumulative considerations impelled the CMA
towards a uniform and metropolitan wide valuation of property and ad valorem
property
rates, being assessment rates based on the value of the property
within a municipal area.
[17]
Â
The practical purpose and effect of this approach is to create a single tax
base and to require those with greater means, measured
by the value of their
immovable property, to make a proportionately larger contribution to the
municipal purse.  It is clear from
the depositions of the City and applicable
legislation
[18]
that the principle of one tax base is integral to the effective transformation
towards non-racial local governance.  Otherwise
very prolonged material neglect
and exclusion of certain areas of the City would simply persist, if not be
entrenched.
[19]
[15]
Between June 1999 and March 2000 individual
metropolitan transitional local councils adopted resolutions authorising
general valuations
of property within their areas of jurisdiction.  The date of
the valuation also known as the base date was determined as 1 January
2000.Â
The valuation would be on a “land and improvements” basis.
[16]
As a step to facilitate the transition process,
the Unicity Commission (Unicom) was established on 25 November 1999.
[20]
  It was a multi-party
transitional body authorised to act, immediately after the local government
elections, as a midwife to a
single municipality.  In April 2000 the authority
of the Unicom was extended to managing the general property valuation as at 1
January
2000.  The envisaged implementation date was 1 July 2002.  The valuation was
conducted in terms of the Property Valuation
Ordinance 1993 (C) (PVO) read with
subsections 93(4)
[21]
and (5)
[22]
of the Structures Act.  The valuation process was modernised and modified by
the insertion of subsection 10G(6A)
[23]
of the Transition Act, which permitted the use of computer-assisted mass
appraisal techniques.
[17]
On 24 April 2002, the City resolved to continue
with the general property valuation in terms of the PVO read with subsections
10G(6)
and (6A) of the Transition Act and subsections 93(4) and (5)(a) of the Structures
Act; that the valuation date would be 1 January
2000 and that all actions taken
by its predecessors in law in relation to the general valuation of all property
within the CMA
were adopted and ratified.  The City caused the provisional
valuation roll to be completed and submitted in terms of section 10
[24]
of the PVO.  On 10 May 2002
the City advertised in terms of subsection 15(1)
[25]
of the PVO in the Provincial
Gazette and in the press, that the provisional valuation roll was open for
inspection from 21 May
2002.  The notice invited objections as required by
subsection 15(1)(b)
[26]
of the PVO.
[18]
Importantly, on 29 May 2002, the City resolved
that property rates and tariffs for the 2002/2003 municipal financial year
would
be levied in accordance with the 2000 general valuation roll prepared in
terms of the PVO.  During June 2002 the City manager published
in the press, in
isiXhosa, English and Afrikaans, the new rates and tariffs and a public guide
to the new municipal account and
budget.
[19]
The decision of the City met with considerable
opposition from some ratepayers and ratepayers’ associations.  The Robertsons
were amongst the discontented property owners.  As intimated earlier, the
general valuation of their Camps Bay property by the
City had shown a dramatic
rise to R1, 7 million.  The new rating system had led to a hefty 113% increase
in their rates for the
financial year ending 30 June 2003.  The Robertsons
objected to the valuation in terms of the PVO contending that the escalated

value should be reduced to R380 000.  This amount, they argued, should be made
up of a land value of R120 000 and a buildings
value of R260 000.
Proceedings in the High Court
[20]
On 27 June 2002 the respondents approached the
High Court on motion and by way of urgency.
[27]
Â
They sought an order restraining the City from levying and recovering property
rates on the basis of the property valuation listed
in the provisional
valuation roll that the City opened for inspection and objection on 21 May
2002.
[21]
Before the High Court the respondents advanced
three main grounds of attack.
[28]
  The first ground was that the PVO had lapsed
and was not a law “in force”.  This they said because the
PVO was
enacted on 8 December 1993 but brought into force only on 1 July 1994.
[29]
  Therefore, they said, it was
not legislation which continued “in force” within the meaning of section 229 of
the interim
Constitution which took effect on 27 April 1994.  They urged that
the PVO could not properly be assigned by the President to the
province of the
Western Cape as required by subsections 235(6)
[30]
and 235(8)
[31]
of the interim Constitution.
[22]
Second, the
respondents contended
that even if the PVO was a law “in force” the City
is not a “local authority” contemplated by the PVO which defines a “local

authority” as a “local council, a metropolitan local council, a representative
council, a rural council and a district council”
as defined in section 10B of
the Transition Act.  The City is however, none of these.  It is a municipality
constituted in terms
of the Structures Act.  Therefore, they contended, it
cannot validly exercise property valuation and rating powers reserved for
a
local authority under the PVO.
[23]
Third,
the
respondents submitted that even if the assumption were made that the PVO was a
law “in force” and that the City is a “local
authority”,
it did not have the power to levy rates on the basis of property
values tabulated in the provisional valuation roll published in
terms of
section 15 of the PVO as distinct from a valuation roll confirmed by certification
in terms of subsections 18(1) and (2)
of the PVO.  They contended that
there is no legislative provision corresponding
to the provisions of subsection 86(1)
[32]
of the Municipal Ordinance, 20 of 1974 (C) permitting the City to levy and
recover property rates based upon valuations of property
recorded in a
provisional valuation roll.
[24]
The High Court dismissed the first attack, but
upheld the second and third.
[25]
On 24 October 2002 and before the application
was heard by the High Court, the National Assembly passed section 21 of the
Amendment
Bill.  On 7 November 2002 the National Council of Provinces adopted
the Bill.  On 11 November 2002, and even before its enactment
into law, the
respondents advised the High Court, that they would be challenging the
constitutionality of the imminent legislation.Â
By consent, the High Court
joined as a party to the proceedings, the Minister who had sponsored the
impugned legislation.  On
5 December 2002, the amendment took effect and inserted
subsections 93(7)-(10) into the Structures Act.
[26]
However, this account would go somewhat limping
if I did not tell what events led to the introduction of the Amendment Bill to
Parliament.Â
In mid 2001 the City initiated what it calls a “legal audit” of
the general valuation process within the CMA.  In June 2002,
in a memorandum,
its attorneys advised of four perceived or potential legal difficulties with
the PVO as a valid source of power
to value property and exact property taxes.Â
Shortly thereafter the respondents launched their application in the High
Court.Â
They fashioned their three principal grounds of attack against the
validity of the property rates on the potential legal difficulties
canvassed in
the memorandum of the City’s attorneys.  They even attached the memorandum to
their application papers.
[27]
The memorandum urged the City to request that an
Act of Parliament be passed to remedy the perceived legislative defects.  When

approached, the national Department of Provincial and Local Government did not
agree that the perceived vulnerabilities existed.Â
However, later the
department took the view that in any event the Western Cape provincial
legislature had the authority to amend
the PVO.  The Province held a different
view.  It concluded that its legislature did not have the power to amend the
PVO as it
had lapsed at the inception of the interim Constitution.  Being
extremely anxious to remove any possible bases of attack against
its general
valuation process, the City pursued and persuaded the Minister to sponsor the
Amendment Bill through Parliament.Â
As intimated earlier, the Bill was passed.
[28]
In its terms, the Amendment Act reads:
“(7) Despite Proclamation No. 148 of 8
December 1993 (Province of the Cape of Good Hope Gazette 4833 of 22 December
1993) and
section 38 of the Property Valuation Ordinance, 1993 (Cape), the said
Ordinance is deemed to have come into force –
(a)        for the purposes of the
Constitution of the Republic of South Africa, 1993            (Act No. 200 of

1993), immediately before the commencement of that      Constitution; and
(b)        for all other purposes, on 1
July 1994.
(8)(a) With effect from 5 December 2000 and
subject to paragraph (b), any reference in a law referred to in item 2 of
Schedule 6
to the Constitution of the Republic of South Africa, 1996 (Act No.
108 of 1996), to a municipal council, municipality, local authority
or
applicable designation of a local government structure, must be construed as a
reference to a municipal council or a municipality
established in terms of this
Act, as the case may be.
(b) Paragraph (a) only applies to a law
referred to in item 2 of Schedule 6 to the Constitution of the Republic of
South Africa,
1996 (Act No. 108 of 1996), in so far as such a law is still
applicable or becomes applicable to a municipal council or municipality,
as the
case may be, at the time the
Local Government Laws Amendment Act, 2002
, comes
into effect.
(9) Until the legislation envisaged in
section 229 (2) (b) of the Constitution of the Republic of South Africa, 1996
(Act No. 108
of 1996), is enacted, a municipality may use the valuations
appearing on a provisional valuation roll or an additional valuation
roll when
imposing property rates.
(10) Subsections (7), (8) and (9) apply to
matters that are the subject of pending litigation.
”
[33]
[29]
Confronted by the new statutory provisions, the
respondents altered their notice of motion and expanded the relief they
claimed.
 In the alternative to the interdictory relief, they asked for an
order declaring section 21 of the Amendment Act to be inconsistent
with the
Constitution and invalid by reason of failure to comply with subsections 154(2)
[34]
and 229(5)
[35]
of the Constitution.
[30]
The City conceded that at one stage it had the
apprehension that absent remedial national legislation, its power to levy
property
rates was vulnerable to litigious challenge, but argued that the
apprehension was misplaced.  On a proper construction of the germane
laws, it
argued, it is vested with the requisite authority to impose rates founded on
property values.  It resisted the interdictory
relief.  The City and the
Minister also argued that the constitutional challenge aimed at the amending
legislation had no merit
because, first, the procedural pre-requisites of subsections
154(2) and 229(5) of the Constitution have been properly satisfied
and that
second, the legislation fell to be characterised as merely expository in
nature.  Its provisions served only to confirm
and place beyond contention the
City’s already existing powers to value and impose rates on property even on
the basis of a provisional
roll of valuation.
[31]
The High Court found that the amending statute
was remedial and not expository in nature.  It favoured the view that but for
the
amending legislation, the City had no power to assess property values, as
it was not a local authority under the PVO and that, in
any event, the City
could not levy property rates on the basis of a provisional valuation roll.
[32]
Having upheld two of the respondents’ principal
grounds of attack, the High Court considered itself impelled to decide the
constitutional
challenge against the Amendment Act.  It found the legislation
to offend the Constitution on two grounds.  The first ground is
that the
provisions of the Amendment Bill, which became subsections 93(8) and (9) of the
Structures Act affecting the status, institutions,
powers or functions of local
government, were not re-published for public comment before being introduced in
Parliament as required
by subsection 154(2) of the Constitution.
[36]
  The second ground is that subsection
93(9) of the Structures Act is legislation, which regulates the power of a
municipality
to impose rates on property yet the Financial and Fiscal Commission
(the FFC) was not consulted before its enactment as prescribed
by subsection
229(5)
[37]
of the Constitution.  Although only subsections 93(8) and (9) of the Structures
Act were found to have been enacted in a manner
at odds with the requirements
of the Constitution, the whole of section 21 of the Amendment Act was
invalidated.  The Court suspended
the order of constitutional invalidity for
one year to allow the competent authorities to correct the defects.
Issues on appeal and confirmation
[33]
The grounds of appeal advanced by the City and
the Minister bring to the fore the following issues for determination by this
Court:
1.
Was the PVO a law “in force” at the commencement
of the interim Constitution; and if not, is subsection 93(7) of the Structures

Act necessary to cure the perceived lacuna?
2.
Is the City a “local authority” for purposes of
the PVO;
and if not,
absent subsection
93(8) of the Structures Act does it have the power to conduct a general
valuation of property in terms of the
PVO, to compile a provisional valuation
roll and based on it, to impose property rates?
3.
Does subsection 10G(6) of the Transition Act
read with subsections 93(4) and (5) of the Structures Act empower the City to
use a
provisional valuation roll as distinct from a final valuation roll; and
if not, did the City have to rely on the “remedial”
provisions of subsection
93(9) of the Structure Act?
4.
Is it necessary for this Court to reach the constitutional
challenge to the provisions of section 21 of the Amendment Act?
5.
If so, is the impugned legislation inconsistent
with the Constitution and therefore invalid?
It is now
convenient to examine each of these issues.
Was the PVO a
law in force?
[34]
It will be recalled that though enacted on 8
December 1993, the PVO only came into operation on 1 July 1994.  The
respondents argued
that the PVO had lapsed.  It had not continued “in force”
when the interim Constitution took effect on 27 April 1994.  As
it had not been
preserved by the provisions of section 229 it could not be validly assigned to
the Western Cape Province under
the interim Constitution.
[38]
  The High Court dismissed the
respondents’ contention and found that the PVO was a law in force within the
meaning of section
229 of the interim Constitution
[39]
and that the provisions of subsection
93(7) of the Structures Act are in effect merely expository.
[35]
In anticipation of the respondents’ argument in
this Court, the appellants submitted written argument in support of the finding

of the High Court that the PVO had not, in the constitutional transition,
lapsed but continued in force.  However, before this
Court the respondents,
wisely so, abandoned the contention.  Moreover, before oral argument, attention
of all counsel was drawn
to the judgment of this Court in
Mashavha
[40]
delivered after the
High Court judgment.
[36]
In
Mashavha
the Court held that
legislation which, at the inception of the interim Constitution, had been
enacted but not brought into operation
was law “in force” within the meaning of
sections 229 and 235(6) of the interim Constitution.  Van der Westhuizen J,
writing
for the Court,
[41]
explained this finding in the following terms:
“Therefore the phrase “in force” should not
be interpreted in section 235(6) to draw any distinction between laws which
were
actually being implemented, executed, or administered at a particular time
and laws which had been enacted but not yet come into
operation, or which were
not being implemented actively.  It simply refers to laws which existed (on the
statute book, if one
wishes to put it that way) immediately before 27 April
1994, and which would continue to exist in terms of section 229.”
[42]
[37]
The High Court correctly rejected the contention
that the PVO had lapsed.  It also held that the provision of subsection 93(7)
of the Structures Act is a mere affirmation of the existing legal position.  I
agree.  It must follow that the PVO was indeed
a law in force at the time of
the inception of the interim Constitution in 1994 and available to the City for
purposes authorised
by that Ordinance and that subsection 93(7) of the
Structures Act is, in effect, merely expository.
[43]
Is the City a
“local authority” as defined by the PVO and is subsection 93(8) an
indispensable amendment?
[38]
As I have intimated earlier, the City was
established on 5 December 2000 as a municipality under sections 12, 14 and 16 of
the Structures
Act.  It is a category A municipality envisaged in subsection
155(1)(a)
[44]
of the Constitution.  Unlike its predecessor, the City is not a metropolitan
local council and at first blush is not a “local
authority” as defined in the
PVO.
[45]
Â
For that reason the High Court concluded that the City had no power to value property
as conferred by the PVO.  As a consequence,
the High Court turned to other
legislation in search for a possible source of the property rating power of the
City.  It concluded
that neither section 14 nor subsections 93(4) and (5) of
the Structures Act read with subsection 10G(6) of the Transition Act confers
on
the City the requisite authority to conduct property valuation and rating.  The
High Court found that “there was indeed a
casus omissus
by which the
applicability of the PVO to the newly established municipalities was not reserved
or saved.”
[46]
Â
It held the omission to be one that a court cannot fill.  It accordingly
concluded that without the amending provision of subsection
93(8)
[47]
of the Structures Act the
property valuation and rating by the City was invalid.
[39]
In essence, the High Court found that the
statutory transitional arrangements directed at transferring the property
valuation and
rating powers from existing to superseding municipalities is
deficient.  Clearly, this finding obliges us to scrutinise the transitional

scheme, which may be gathered from the provisions of subsections 93(4) and (5)
read with sections 12 and 14 of the Structures Act.Â
Subsection 93(4)
stipulates that despite anything contrary in any other law, from the date on
which a municipal council has been
elected
[48]
section 10G of the Transition Act applies to such a municipality.  Subsection
93(5) in turn extends the reach of section 10G to
superseding municipalities by
providing that any reference in section 10G to “local council”, “metropolitan
council”, “metropolitan
local council” and “rural council” “must be construed
as reference to a municipal council.”  The import of this transitional

provision is not obscure.  On its face, the text simply means that when one
reads the powers, functions and duties created or
conferred by section 10G of
the Transition Act, a new final phase municipal council must now take the place
of the existing municipality
or municipalities it is replacing.  Therefore a
final phase municipal council assumes the powers, authority and obligations of

its predecessor under section 10G.  At a purposive level this construction
resonates with the broader transitional objectives
of the Structures Act that
was enacted to give effect to the constitutional imperative of reshaping a
local sphere of government
into municipalities established on a wall-to-wall
basis for the whole of the territory of our country in the place of existing
local authorities.
[49]
[40]
Clearly, from 5 December 2000, the City became a
municipality whose executive and legislative authority vested in a municipal
council.
[50]
Â
Thus the regulatory framework of section 10G of the Transition Act as preserved
by subsections 93(4) and (5) extended to and
still applies to the City.  The
only residual question seems to be whether the preserved provisions of section
10G of the Transition
Act pointedly or otherwise vest in a municipality the
power to measure property and to levy property rates.
[41]
Section 10G regulates the financial matters of
every municipality.  The primary purpose of its extensive and mainly peremptory
provisions is to ensure that every municipality conducts its financial affairs
in an effective, economical and efficient manner
with a view to optimising the
use of its resources in addressing the needs of the community.  Of immediate
importance are the
provisions of subsection 10G(6) as amended
[51]
and subsection 10G(7)(a)(i).
[52]
  Read together, the provisions
oblige a municipality, “subject to any other law”, to ensure that property
within its jurisdiction
is valued or measured “at intervals prescribed by law”;
that a single valuation roll of all property is compiled and is open
for public
inspection and that all property valuation “procedures prescribed by law” are
complied with.  The provisions also
stipulate that a municipality may by
resolution levy and recover property rates provided that a common rating system
is applicable
throughout its area of jurisdiction.
[42]
The High Court held that the transitional scheme
does not authorise a municipality to exercise powers derived from the PVO
because
the general power to measure or value property and to exact property
rates is qualified by reference to “procedures” or “at
intervals prescribed by
law”.
[53]
Â
This, it reasoned, indicates that the valuation would be governed, subject to
consistency with section 10G, by the terms of whatever
other ordinance or
statute that may be applicable.
[43]
I have considerable difficulty with this
approach.  In my view the transitional scheme confers in explicit terms
substantive powers
on municipalities to measure or value property and based on
the valuation to impose property rates.  It appropriately requires
the exercise
of the power to be in accordance with procedures prescribed by any other
applicable law.  I can find no reason why
this trite qualification is
inconsistent with or expunges the valuation and rating powers expressly
conferred on a municipality
by subsections 10G(6) and 10G(7)(a)(i) of the
Transition Act as saved by subsections 93(4) and (5) of the Structures Act.
[44]
It seems to me the words “to any other law” in subsection
10G(6) must be taken to refer to property valuation legislation applicable
to
the predecessors of the City at the time of its enactment.  There is no doubt
that, in the legislative setting of the Western
Cape province, the PVO is the
law which regulates and defines the property valuation process by a
municipality for rating purposes.Â
It is indeed within this context that the
phrase “prescribed by law” in subsection 10G(6) must be understood.  Therefore
the
property measurement and rating powers conferred by subsections 10G(6) and 10G(7)(a)(i)
are to be exercised within the procedural
and other requirements of the PVO,
provided that they are not inimical to the terms of subsections 10G(6) and
(7)(a).  The mere
qualification, that the power to impose levies on property
must be exercised subject to the procedural and other prescripts of another

law, does not render the power ineffectual or nugatory.  It simply provides for
the power to be supplemented and regulated by
another compatible or
complementary law.
[45]
I conclude that the savings provisions of
subsections 93(4) and (5) properly preserve and extend to a superseding
municipality established
under the Structures Act, such as the City, the substantive
power in its area of jurisdiction to impose and recover property rates
based on
property valuations.  I also find that the PVO is available to the City and is
the law that regulates the conduct of
property valuation within its area of
jurisdiction.
Sections 12 and 14 of the
Structures Act
[46]
In alternative argument, the City urged the High
Court to find that section 14 read with section 12 of the Structures Act
affords
another and independent source for the power of a municipality to
measure property under the PVO and to exact property rates.Â
The High Court
dismissed the contention.  I have already found that such power is conferred on
a municipality by section 10G of
the Transition Act read with the savings
provisions of subsections 93(4) and (5) of the Structures Act and must be
exercised subject
to the procedural prescriptions of the PVO.  However, the
implication of the finding of the High Court on sections 12 and 14 of
the
Structures Act is potentially far-reaching and likely to have a deleterious
effect on other legislative bequests to new municipalities.
[54]
  For that reason I find it
appropriate to reach this matter.
[47]
Section 12 empowers the MEC for local government
in a province, by notice in the Provincial Gazette, to establish a
municipality.Â
The provisions of subsection 14(1)(a) state that a municipality
established for a particular area under section 12 “supersedes
the existing
municipality or municipalities . . . within that area.”  Subsection 14(1)(b)
amplifies that the superseding municipality
becomes the “successor in law of
the existing municipality”.
[55]
[48]
The High Court faulted these provisions for
failing to go “beyond the general statement of legal succession” and “to record

what statutory powers or ordinances the newly established municipality would
have at its disposal”.
[56]
Â
Moreover, it held, the provisions do not mention powers, statutory or
otherwise, which appear to vest in the municipality the
right to levy rates
based on a provisional roll.  It examined the section 12 notice establishing
the City
[57]
and concluded that although the notice records that the City supersedes the
disestablished municipalities and becomes their successor
in law, and that
existing valuation rolls shall continue until the introduction of a general
valuation roll for the area of the
municipality, it does not empower the City
to compile the contested provisional valuation roll.  The High Court concluded
that
subsection 14(1) is not a full savings provision and in fact omits to preserve
or save pre-existing empowering legislation for use
by new municipalities.
[58]
[49]
It is so that the provisions of subsection 14(2)
seem to limit matters to be regulated in a notice under section 12 to domestic
agreements, matters that may be determined by by-laws, labour and other
arrangements specific to the superseding municipality.Â
It is also true that
the section 12 establishment notice relating to the City preserves existing
by-laws, resolutions, agreements
and other domestic matters but does not
contain general savings provisions of laws which were applicable to the
disestablished
municipalities.  In my view subsections 14(1) and 14(2) regulate
related but different matters.  The first subsection lays down
and establishes,
in cryptic terms, the principle of legal succession and substitution.  The
second subsection regulates, in detailed
terms, mainly but not exclusively,
domestic transition.  It would however be misplaced to reason that because the
principle of
succession is cast in terse terms it does not exist or that it is
subsumed under domestic transitional arrangements.  The wording
of subsection
14(2) or the terms of the establishment notice of the City do not detract from
or subvert the principle of legal
succession and supersession.  In other words
there is no valid cause for concluding that a superseding municipality is
launched
into a legal vacuum, stripped of all laws that had governed its
predecessors.
[50]
The purpose of the provisions of subsection
14(1)(b) is clear.  It is to regulate and facilitate effective and orderly
transition
from existing municipal structures to final phase municipalities
established under section 12.  The newly established municipalities
take the
place of or supplant or “supersede” disestablished ones and become their
“successors in law”.  I find no justification
for a construction of subsection
14(1) that leads to a drastic truncation of all pre-existing laws regulating
municipalities.Â
At the point of transition, existing laws applicable remain in
force and binding on superseding municipalities unless the context
demands
otherwise.  It is clear from the statute read as a whole and within its
appropriate context that a superseding municipality
succeeds to the rights,
functions and obligations of its predecessors, inclusive of those arising from
pre-existing legislation.Â
Nothing suggests otherwise.
[51]
The proper construction of the provisions, and
in particular the expressions “successor in law” and “supersede”, must
therefore
be informed by the history of local government,
[59]
the “protracted, difficult and
challenging transition process”
[60]
of pre-interim, interim and final phases of local government, the broader
transformative design discernible in the cluster of applicable
legislation and
the manifest object to establish the final phase as part of a vision of a
“democratic and developmental local
government”.
[61]
  The inexorable logic of the
transition scheme is progression and not truncation.  The manifest object of
section 14 is to vest
the powers and obligations of existing municipalities as
defined in the interim phase in the new superseding municipalities established

under enactment required by Chapter 7 of the Constitution.
Local government and the
Constitution
[52]
A central tenet of the judgment of the High
Court is that there is an incurable
casus omissus
because there is no
legislation empowering the City to levy rates on property.  A finding of whether
or not there is an omission
is one of statutory interpretation of the provision
in question.  Implicit in the finding is that a court whose sole duty is to

construe the legislation as it stands cannot fill the gap.
[62]
  The Constitution requires
that, where plausible, legislation must now be interpreted in harmony with its
objects and values.
[63]
Â
Given the conclusion I have arrived at I refrain from expressing a view on the
appropriateness of a finding of
casus omissus
in light of the
interpretive duties of a court under the Constitution.  I have construed the
legislation in issue differently
from the High Court.  I have found that there
is no legislative hiatus.  The provisions of subsections 93(4) and (5) and of
sections
12 and 14 of the Structures Act taken together with the PVO adequately
empower the City to value property and to impose and recover
property rates
within its area of jurisdiction.
[53]
I now turn to a related matter of considerable
importance.  The High Court seems to have adopted the approach that, absent
empowering
legislation, a municipality has no power to act.  Such an approach
to powers, duties and status of local government is a relic
of our pre-1994
past and no longer permissible in a setting underpinned by constitutional
supremacy.Â
Under our previous order, which
embraced parliamentary sovereignty, municipalities were creatures of statute
and enjoyed only delegated
or subordinate legislative powers derived
exclusively from ordinances or Acts of Parliament.
[64]
Â
 It followed that municipal
regulations or by-laws that went beyond the powers conferred, expressly or
impliedly, by the enabling
superior legislation, were
ultra vires
and
invalid.
[65]
 Then
local government was described as being mere local authorities entrusted to
provincial councils to administer.
[66]
Â
Courts
of the time confirmed this approach in various cases.
[67]
[54]
In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others
[68]
this
Court observed that when Parliament was supreme, the existence and powers of
local government were entirely dependent upon
superior legislation.  The
institution of local government could then have been terminated at any time and
its functions entrusted
to administrators appointed by the central or
provincial governments
.
[69]
[55]
Matters however, became different under the
interim Constitution.  This Court noted
[70]
that local government derived powers, functions and duties directly from the
interim Constitution, although these powers were subject
to definition and
regulation by either the national or the provincial governments that were
“competent authorities” for enacting
such legislation.
[71]
[56]
Despite the powers of municipalities being
subject to definition and regulation by a “competent authority”, the Court held
that
this does not mean that the powers exercised by local government are
“delegated” powers.  Rather, local government does exercise
“original” powers.
[72]
  The
Court then emphasised that the powers, functions and structures of local
government provided for in the interim Constitution,
“will be supplemented by
the powers, functions and structures provided for in other laws made by a
competent authority.”
[73]
[57]
The Court
restated the principle of legality and in particular the rule that an entity
can only act within the powers that are lawfully
conferred upon it.  In the
context of local government, the Court stated that the powers of local
government are conferred upon
it either in terms of the Constitution or the
laws of a competent authority
.
[74]
[58]
The advent of the Constitution has enhanced
rather than diminished the autonomy and status of local government that
obtained under
the interim Constitution.  In the
First Certification
Judgment
[75]
this Court stated:
“[Local Government] structures are given more
autonomy in the [New Text] than they have in the [interim Constitution] and
this
autonomy is sourced in the [New Text] and not derived from anything given
to [Local Government] structures by the provinces.”
[76]
[59]
Subsection 40(1)
[77]
of the Constitution entrenches
the institutions of local government as a sphere of government and pronounces
all spheres of government
to be distinctive, interdependent and interrelated.Â
Subsections 41(e)
[78]
and (g)
[79]
articulate and preserve the geographical, functional and institutional
integrity of local government.  In turn, subsections 43(c)
[80]
and 151(2)
[81]
confer original legislative
and executive authority on municipal councils.  The Constitution expressly
precludes the national
or a provincial government from impeding the proper
exercise of powers and functions of municipalities.  Thus a municipality has

the right to govern the local government affairs of its area and community.
[82]
  However the duties, powers
and rights of municipalities have to be exercised subject to national or
provincial legislation as
provided for in the Constitution.
[83]
[60]
The Constitution has moved away from a
hierarchical division of governmental power and has ushered in a new vision of
government
in which the sphere of local government is interdependent,
“inviolable and possesses the constitutional latitude within which
to define
and express its unique character”
[84]
subject to constraints permissible under our Constitution.
[85]
  A municipality under the
Constitution is not a mere creature of statute otherwise moribund save if
imbued with power by provincial
or national legislation.  A municipality enjoys
“original” and constitutionally entrenched powers, functions, rights and duties

that may be qualified or constrained by law and only to the extent the
Constitution permits.  Now the conduct of a municipality
is not always invalid
only for the reason that no legislation authorises it.  Its power may derive
from the Constitution or from
legislation of a competent authority or from its
own laws.
[61]
It is indeed trite that when a court is seized
with the delineation of the powers, functions, rights and duties of a sphere of
government
conceived and entrenched under the Constitution, the proper starting
point of the enquiry must be the Constitution itself.
[86]
  The nub of the challenge
before the High Court was the constitutionality of the conduct of the City in
valuing property and raising
property rates.  In that event, the inescapable
point of departure must certainly be whether the Constitution contemplates
municipal
fiscal powers and functions.  It does.  Chapter 7 of the Constitution
read with subsection 229(1)(a) are in this context of great
import.  Subsection
229(1)(a) of the Constitution expressly authorises a municipality to impose
rates on property and subsection
229(2)(b) adds that the power to impose rates
on property may be regulated by national legislation.  The High Court disposed
of
the matter without any reference to the Constitution in this context.
[62]
In conclusion, I am satisfied that the City,
being a municipality established under Chapter 7 of the Constitution read with
the
Structures Act derives, in the first instance, its power to value property
and impose rates on property from subsection 229(1) of
the Constitution.Â
Evidently, the power may be defined or regulated by legislation of a competent
legislative authority.  Secondly,
I am satisfied that, to the extent that it
may be necessary, in terms of subsections 93(4) and (5) of the Structures Act read
with
subsection 10G(6) of the Transition Act, from 5 December 2000 the City
assumed the power and indeed the obligation to valuate property
as was required
of its predecessors, the metropolitan local councils, “subject to any law”.Â
The PVO is clearly such law.Â
Thirdly, I hold that one of the consequences of
the provisions of section 12 and subsection 14(1)(b) of the Structures Act is
that
all laws that applied to an existing municipality apply to the superseding
municipality which, in the context of the present matter,
is the City.
[63]
I am unable to support the finding of the High
Court that without amending the provisions of subsection 93(8) of the
Structures
Act the resolution of the City to compile a property valuation and
to impose property rates based on the valuation roll is invalid.Â
These
provisions are dispensable and at best expository in nature as they purport to
confer power that the City already has.
Provisional
valuation roll and subsection 93(9) of the Structures Act
[64]
On 29 May 2002 the City resolved to levy
property rates for the 2002/2003 municipal financial year on the general valuation
roll
which was in effect a provisional valuation roll referred to in section 9
of the PVO and not a certified roll envisaged in subsection
18(3) of the PVO.  Subsection
93(9) appears to have been enacted to rectify the perceived lack of authority
on the part of the
City to utilise a provisional valuation roll in this way or
to remove any doubt in that regard.
[65]
The High Court found that the City exceeded its
authority in relying on the provisional valuation roll.  It reasoned that no
specific
provision authorising such use can be found in the PVO.  In contrast, subsection
86(1A)
[87]
of the Municipal Ordinance, 1974 (C), specifically authorised the use of a
provisional valuation roll.  The High Court, however,
concluded that the provisions
of the Municipal Ordinance could not assist the City, as it is not a local
authority within the meaning
of that legislation.  Before this Court the City
urged us to find that the Municipal Ordinance was still effective and available

to it as a source of the power to use a provisional roll of property
valuations.  Given the conclusion I have come to, it is unnecessary
to decide
the issue.
[66]
The City argued that section 10G of the
Transition Act does not preclude it from utilising a provisional roll.  The
High Court
concluded that section 10G does not deal exhaustively with the
matter, but does not in itself authorise the use of a provisional
roll.  It
held therefore, that the conduct of the City goes beyond its power and offends
the principle of legality enunciated
in
Fedsure.
[88]
  It concluded that in any
event, the City represented to the public and property owners that it compiled
a valuation roll under
the PVO and must be held to the representation.
[67]
I have held on three separate but interrelated
bases that a superseding municipality such as the City has the power to value
property
and levy rates on property within its area of jurisdiction.  It will
be remembered that subsection 10G(7)(a) permits a municipality
to levy and
recover rates in respect of immovable property.  Subsection 10G(6) requires a
single valuation roll of all property
to be compiled and opened for public
inspection.  I cannot find anything in these provisions that restricts the
power of a municipality
to the use of a final and not a provisional valuation
roll for the purpose of determining property rates.  Secondly, as the High

Court correctly observed,
[89]
the PVO too is silent on this matter.  It is not surprising.  The PVO seems to
regulate the process of property valuation including
the compilation of
valuation rolls, their certification and the related appeal and review
processes.  But it does not in itself
vest in a municipality the power to
impose property rates.  As we have seen earlier, the property rating power
derives from the
Constitution and the Structures Act.  Lastly, subsection
229(1)(a) of the Constitution does not regulate valuation rolls.  But
more
importantly, it does not prohibit the use of a provisional valuation roll for
purposes of imposing rates on property.
[68]
If anything, the valuation and certification
scheme to be found in the PVO seems to anticipate and favour the use of a
provisional
roll.  Many practical considerations dictate so.  Once a
provisional roll has been advertised it triggers an objection and appeal

process inclusive of possible judicial reviews or appeals.  All of these
procedures are bound to delay inordinately the final
certification of any
general valuation under section 18 of the PVO.
[69]
The manifest object of a valuation roll of
property in a municipality is to fix monetary rates destined for its coffers.  If
the
assessment of rates were to await final certification of a provisional
valuation roll, the time lapse will frustrate the fiscal
object of the
legislation.  In my view, the provisions of the PVO read as a whole point to a
transparent but responsive process
open to adjustments of property values at
any stage between the publication of the provisional roll for inspection and
its final
certification.  To enhance flexibility the legislation envisages
supplementary and interim valuation rolls.  I agree with the
submission by the
City that the interim valuation procedures in the PVO are directed at enhancing
a real time and current ratio
of rates liability in a dynamic property climate.
 Otherwise changes in property valuation such as rezoning, subdivisions,
improvements
and new developments between general valuations would stay out of
reckoning.  This will be to the detriment or potential prejudice
of the
municipal treasury and property owners alike.
[70]
It seems to me that the value of final
certification may lie in bringing the curtain down on the objections and
appeals and setting
the stage for another general valuation.  The requirement
of final certification in the PVO should not be seen as precluding the

imposition of property rates based on a provisional, supplementary or interim
valuation roll.  Lastly, a flexible and responsive
valuation regime is well
suited for the adjustment of rates liability upwards or downwards without any
obvious prejudice to property
owners or the municipality pending final
certification of the roll.
[71]
I am satisfied that the City was entitled to
rely on the provisional valuation roll advertised on 21 May 2002 for imposing
property
rates in its area of jurisdiction.  It must follow that whilst subsection
39(9) of the Structures Act was enacted at the request
of the City, it is
redundant and at best merely explanatory in effect.
Enactment of
section 21 of the Amendment Act
[72]
The City and the Minister suggested that should
we find in their favour on the property rating power issues, as I have done, we
need not decide the constitutional challenge against the manner in which the
Amendment Act was enacted.  These are confirmation
proceedings coupled with an
appeal by the Minister and the City under subsection 172(2)(d).  The High Court
has expressed itself
on the validity of an Act of Parliament.  The question is
whether in these circumstances this Court must confirm, decline to confirm
or
vary the order of invalidity.
[73]
In the
Court Martial
[90]
case, this Court held that subsection
172(2) does not require it in all circumstances to determine matters brought to
it for confirmation
under that subsection.  The Court has a discretion to
decide whether or not it should deal with a matter.  In exercising the discretion

it should consider whether any order it may make will have a practical effect
either on the parties or on others
[91]
or whether there are considerations of public policy that require a decision on
the constitutional validity of the impugned legislation.Â
“Factors that must be
taken into account include the nature and extent of any practical effect the
order may have, ‘the importance
of the issue raised, its complexity and the fullness
of the argument on the issue’.”
[92]
Â
A further factor may be added to that list, namely, the nature of the
constitutional challenge.
[74]
In the constitutional challenge before us, the
first narrow question is whether the draft provisions that became subsections
93(8)
and 93(9) of the Structures Act were passed in accordance with the
requirements of subsection 154(2) of the Constitution.  The
High Court found
that since the two subsections were added to section 21 of the Amendment Act after
its publication for public
comment they were invalid.  The appellants argued
that the new subsections 93(8) and (9) of the Structures Act are unnecessary

and have no effect in law.  They say the new subsection 93(10) was merely an
adjunct with no independent content of its own.  They
further argued that
the Amendment Act as a whole was not legislation that affects the
status, institutions, powers or functions of local government within
the
meaning of subsection 154(2).  They submitted that re-publication of the draft
legislation after it was introduced in Parliament
is not required.
[75]
The second ground for constitutional challenge
is that the FFC was not consulted on the draft legislation as required by subsection

229(5) of the Constitution.  The Minister denied that the draft legislation was
national legislation regulating the power of a
municipality to impose rates on
property and that in any event, as a matter of fact, the FFC was consulted.Â
Nevertheless, the
High Court found that in relation to subsection 93(9) the FFC
was not consulted and that the amendment is inconsistent with the
Constitution
and invalid.
[76]
The High Court readily appreciated that if it
had dismissed the principled grounds of the application before it, it would
have been
unnecessary to decide the constitutional challenge against section 21
of the Amendment Act.
[93]
Â
I agree.  No practical benefit for the parties or any other person or body will
flow from deciding the constitutionality of
a statute, which I have found to
serve only to clarify the law.  I can find no compelling public policy
consideration to decide
the constitutionality of the impugned law.  Moreover
the facts are obscure.  The issues arising from the constitutional challenge

are complex and far-reaching and relate to the procedural validity of
legislation.  On the other hand, even if the challenge is
decided in favour of
the respondents, the decision will not alter the outcome of this case or
vindicate the right of any party.
[77]
An additional and important consideration is
that the challenge is against the manner and form in which the legislation was
passed.Â
It is therefore different to a substantive challenge.  Moreover,
section 21 of the Amendment Act is part of an omnibus local government

legislation related to matters not connected with those that arise in this
case.  Therefore it may well be that other parts of
the legislation may attract
different manner and form challenges.  In my view, it is appropriate, in a
manner and form challenge,
to pay appropriate respect to the legislature in
relation to the regulation of its own processes.  Having had regard to all the
relevant
considerations, I decline to decide the constitutional challenge and therefore
do not confirm the order of constitutional
invalidity made by the High Court.
[78]
The appeal should succeed.  The orders of the
High Court should be set aside and replaced with an order to the effect that
the
application before the High Court is dismissed.
Costs
[79]
The appellants are successful, but I am minded
not to make costs to follow the event.  The City sought to persuade us that the
respondents ought to pay costs because their claim is actuated by a motive
other than a personal desire to vindicate a right.Â
We were referred to several
passages in the papers containing public utterances made by the second
respondent on the City’s property
rating policy and powers.  The views are
expressed in strong language.  But I do not think that the only reasonable
inference
to be drawn from the statements is that the respondents pursued their
cause with an ulterior motive.  The respondents sought to
vindicate a
constitutional protection.  Nothing before us suggests that they ought to be
mulcted for costs for doing so.  On
the contrary, an order as to costs against
the respondents would be inappropriate.  I plan to make none.  In my view it
would
be fair and just that the parties pay their own costs in the High Court
and before this Court. Â
[80]
I make the following order:
(a)
The appeal of the first and second appellants is upheld.
(b) Paragraphs
1.1, 1.2, 2 and 3.1 of the orders of the Cape High Court
[94]
under case number 4995/02 made
on 31 May 2004 are set aside and replaced with the following order: Â
“The application is dismissed.”
Langa ACJ, Mokgoro J, O’Regan J,
Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J concur in the judgment
of Moseneke J.
For the
first appellant:                                  AG Binns-Ward SC and AM
Breitenbach                                     Â
                        instructed
by Fairbridge Ardene & Lawton                                                                       Â
Inc.
For the
second appellant:                             W Trengrove SC and P Coppin
instructed by                               Â
                                    the
State Attorney (Cape Town).
For the
first and second respondents:         JL Abel instructed by Deryck Uys &                                            Â
                                    Associates.
[1]
Act 51 of 2002.
[2]
The decision of the Cape High Court is reported as
Robertson and
Another v City of Cape Town and Another; Truman-Baker v City of Cape Town
2004 (5) SA 412 (C); 2004 (9) BCLR 950 (C).
[3]
In terms of subsection 10G(2)(d)(i) of the Local Government
Transition Act, 209 of 1993 (which remained in effect by reason of subsection

93(4) of the
Local Government: Municipal Structures Act, 117 of 1998
), the
City’s financial year began from 1 July 2002 and ended on 30 June of the
following year.  The impugned resolution that
property rates be levied in
accordance with the 2000 General Valuation Roll was passed by the City on 29
May 2002.
[4]
Above n 2 at paras 9-19.
[5]
Section 12
states:
“MECs to establish municipalities—(1)
The MEC for local government in a province, by notice in the Provincial
Gazette, must
establish a municipality in each municipal area which the
Demarcation Board demarcates in the province in terms of the Demarcation
Act.
(2) The establishment of a municipality—
                (a) must be
consistent with the provisions of this Act; and
                (b) takes effect at
the commencement of the first election of the council of that      municipality.
(3) The notice establishing the
municipality must set out—
                (a) the category of
municipality that is established;
                (b) the type of
municipality that is established;
                (c) the boundaries of
the municipal area;
                (d) the name of the
municipality;
                (dA) in the case of a
metropolitan or local municipality, the number of wards in the             Â
municipality;
                (e) the number of
councillors as determined in terms of section 20;
                (eA) in the case of a
district municipality, the number of councillors, determined in             Â
terms
of section 23, to—
                                (i)
proportionally represent parties;
                                (ii)
be appointed by each of the local councils within the district
                                              municipality
to directly represent each
local municipality; and
                                (iii)Â
proportionally represent parties from each district management
area                                 within
that district municipality;
                (f) which councillors
of the municipality (if any) may be designated as fulltime in terms of section

18(4);
                (g) . . . .
                (h) any provisions of
this Act from which the municipality has been exempted in terms of section
91;
and
                                (i)
any other relevant detail.
(4) The MEC for local
government must—
(a) at the
commencement of the process to establish a municipality, give written notice of
the proposed establishment to organised
local government by the province and
any existing municipalities that may be affected by the establishment of the
municipality;
                (b) before publishing
a notice in terms of this section, consult—
                                (i)
organised local government in the province; and
                                (ii)
the existing municipalities affected by the proposed                                             Â
                establishment;
and
                (c) after such
consultation publish particulars of the proposed notice for public    comment.”
[6]
Section 14 states:
“Regulation of effects of
establishment of municipality on existing municipalities—
(1)(a) A municipality established in
terms of section 12 in a particular area, supersedes the existing municipality
or municipalities
to the extent that the existing municipality or
municipalities fall within that area.
(b) The superseding municipality becomes
the successor in law of the existing municipality subject to paragraph (c).
(c) Where a district municipality and
one or more local municipalities within the area of the district municipality
supersede the
existing municipality or municipalities in that area, the
district and local municipalities in that area become the successors in
law of
the existing municipality or municipalities depending on the specific assets,
liabilities, rights and obligations allocated
to the district and local
municipalities respectively in terms of the relevant section 12 notice or
notices.
(2) If subsection (1) is applicable,
the section 12 notice, or any amendment of the section 12 notice, must—
(a) provide for the disestablishment
of the existing municipality or, if only part of the existing municipality’s
area is affected,
the disestablishment of the existing municipality in the
affected area; and
(b) regulate the legal, practical and
other consequences of the total or partial disestablishment of the existing
municipality,
including—
(i) the
vacation of office by councillors of the existing municipality;
(ii) the
transfer of staff from the existing municipality to the superseding
municipality, or, if there is more than one superseding
municipality, to any of
the superseding municipalities;
(iii) the
transfer of assets, liabilities, rights and obligations, and administrative and
other records, from the existing municipality
to the superseding municipality,
or, if there is more than one superseding municipality, to any of the
superseding municipalities,
taking into account the interests of creditors of
the existing municipality; and
(iv) the
continued application of any by-laws and resolutions of the existing
municipality to or in that area, and the extent of
such application:
Provided
that if the superseding municipality is a district or local municipality a
transfer referred to in subparagraph (ii) or
(iii) must be effected in a way
that would enable the superseding municipality to perform the functions or
exercise the powers
assigned to it in terms of section 84 (1) or (2).
(3)(a) The transfer of a staff member
in terms of a section 12 notice must be—
(i) on
conditions of service not less favourable than those under which that staff
member served in the existing municipality; and
(ii) in
accordance with the Labour Relations Act, 1995 (Act No. 66 of 1995).
(b) A section 12 notice transferring
staff of an existing municipality to a superseding municipality may determine
that—
(i) the
staff transferred from the existing municipality to the superseding
municipality from an administrative unit that functions
as such until the
superseding municipality has established a staff structure and has appointed
staff to positions on that staff
structure; and
(ii) such
administrative unit functions under the control of the municipal manager or
acting municipal manager of the superseding
municipality.
(4)(a) On production of a certificate
by a municipality that any asset registered in a deeds registry was transferred
to it in terms
of a section 12 notice, a registrar of deeds must make such
entries or endorsements in or on any relevant register, title deed or
other
document to register that asset in the name of that municipality.
(b) No duty, fee or other charge is
payable for a registration in terms of paragraph (a).
(5) The MEC for local government in a
province, by notice in the Provincial Gazette, may make provision for
transitional measures
to facilitate the disestablishment of an existing
municipality and the establishment of a new municipality. The MEC must consult

the existing municipality before publishing the notice.”
[7]
Section 16 states:
“Amendment of section 12 notices—
(1) The MEC for local government in a
province, by notice in the Provincial Gazette, may amend a section 12 notice—
(a) to
change the municipality from its existing type to another type;
(b) to
alter the name of the municipality;
(c)
subject to section 20, to alter the number of councillors, but only with effect
from the next election of the municipal council;
(d) to
specify which councillors of the municipality (if any) may be designated as
fulltime in terms of section 18 (4);
(e) . . .
.
(f) to
specify any provisions of this Act from which the municipality has been
exempted in terms of section 91;
(g) to
give effect to any change in boundaries; or
(h) to
further regulate the matters mentioned in section 14 after consulting all
affected municipalities.
(2) Any amendment of a section 12
notice must be consistent with the provisions of this Act.
(3) The MEC for local government
must—
(a) at the
commencement of the process to amend a section 12 notice, give written notice
of the proposed amendment to organised
local government in the province and any
existing municipalities that may be affected by the amendment;
(b) before
publishing the amendment notice consult—
                (i)
organised local government in the province; and
                (ii)
the existing municipalities affected by the amendment; and
(c) after
such consultation publish particulars of the proposed notice for public
comment.”
[8]
For a general overview of the constitutional context of the transformation
of local government see
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at paras 2-4;
African National Congress and
Another v Minister of Local Government and Housing, KwaZulu-Natal, and Others
[1998] ZACC 2
;
1998 (3) SA 1
(CC);
1998 (4) BCLR 399
(CC) at paras 4-12;
Executive Council,
Western Cape Legislature, and Others v
President of the Republic of
South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) at
paras 182-86;
Rates Action Group v City of Cape Town
2004 (12) BCLR 1328
(C).
[9]
See also
Executive Council, Western Cape v Minister of
Provincial Affairs and Constitutional Development and Another; Executive
Council,
KwaZulu-Natal v President of the Republic of South Africa and Others
[1999] ZACC 13
;
2000
(1) SA 661
(CC);
1999 (12) BCLR 1360
(CC) at para 16;
African National
Congress
id at paras 6-7;
Executive Council, Western Cape Legislature
id at para 178.
[10]
The text of the Transition Act was negotiated and settled by the
Local Government Negotiating Forum established in March 2003.Â
Its mandate was
to seek agreement between representatives of the existing central, provincial
and local government, on the one
hand and the South African National Civic
Association, on the other, on local government restructuring in close liaison
with and
within the framework of the agreements of the national negotiation
process at Kempton Park.  For a description and critique of
the process see
Cloete “Local Government Transformation in South Africa” in De Villiers (ed)
Birth
of a Constitution
1 ed (Juta & Co, Ltd, Kenwyn 1994) at 294.
[11]
Section 1 of the Transition Act defines the “pre-interim phase” as:
“[T]he period commencing on the date
of commencement of this Act and ending with the commencement of the interim
phase”.
[12]
Section 1 of the Transition Act defines the “interim phase” as:
“[T]he period commencing on the day
after elections are held for transitional councils as contemplated in section
9, and ending
with the implementation of final arrangements to be enacted by a
competent legislative authority”.
[13]
See for example the judgment in
Lotus River, Ottery, Grassy Park
Residents Association and Another v South Peninsula Municipality
1999 (2)
SA 817
(C);
1999 (4) BCLR 440
(C) where it was held that the uniform property
rates increases perpetuated inherent inequities within one tax base and thus
amounted
to unfair discrimination.
[14]
Act 102 of 1982.
[15]
Subsection 159(1) states:
“The term of a Municipal Council may
be no more than five years, as determined by national legislation.”
[16]
With effect from October 2000, the provisions of subsection
10G(6)(b) of the Transition Act were made applicable to final phase

municipalities by insertion of subsections 93(4) and (5) into the Structures
Act.  The effect of the amendment was to create a
requirement that a single
valuation roll of all properties within a municipality must be compiled and
kept open for public inspection.
[17]
For a discussion of the system ad valorem property rates in
relation to subsection 229(1)(a) of the Constitution, see
Gerber and Others
v Member of the Executive Council for Development Planning and Local
Government, Gauteng and Another
2003 (2) SA 344
(SCA) at paras 23-28.
[18]
Subsection 10G(6)(b) of the Transition Act read with subsections
93(4) and (5) of the Structures Act.
[19]
Compare
Fedsure
above n 8 at paras 121-5;
Gerber
above
n 17 at paras 23-28; Swilling and Boya “Local governance in transition” in
Fitzgerald et al (eds)
Managing Sustainable Development in South Africa
(Oxford University Press, Oxford 1995) 168 at 171.
[20]
The Provincial Minister of Local Government acting under the
provisions of subsection 14(5) of the Structures Act established the
Unicity
Commission.
[21]
Subsection 93(4) of the Structures Act states:
“Despite anything to the contrary in
any other law and as from the date on which a municipal council has been
declared elected
as contemplated in item 26 (1) (a) of Schedule 6 to the
Constitution—
(a)
section 10G of the Local Government Transition Act, 1993 (Act No. 209 of 1993),
read with the necessary changes, apply to such
a municipality; and
(b) any
regulation made under section 12 of the Local Government Transition Act, 1993
(Act No. 209 of 1993), and which relates to
section 10G of that Act, read with
the necessary changes, apply to such a municipality.”
[22]
Subsection 93(5) of the Structures Act states:
“For purposes of subsection (4)—
(a) any reference in section 10G of
the Local Government Transition Act, 1993 (Act No. 209 of 1993), or a
regulation referred
to in subsection (4) (b), to—
(i) “chairperson
of the council” must be construed as a reference to the speaker of the council;
                (ii)“chief executive
officer” must be construed as a reference to the municipal        manager

appointed in terms of section 82;
(iii) “local
council”, “metropolitan council”, “metropolitan local council” and “rural
council” must be construed
as a reference to a municipal council;
(iv) “MEC”
must be construed as a reference to the member of the Executive Council of a
province responsible for local government;
                (v) “MEC responsible
for Finance” must be construed as a reference to the member           Â
of the
Executive Council of a province responsible for finances in the province; and
(vi) “remaining
area” and “areas of jurisdiction of representative councils” must be construed
as a reference to a district
management area; . . . ”
[23]
Subsection 10G(6A) added by subsection 93(5)(b) of the Structures
Act.
[24]
Section 10 of the PVO states:
“After the
preparation of the provisional valuation roll in terms of the provisions of
section 9, such roll shall forthwith be
submitted to the town clerk of the
local authority concerned, and the town clerk shall submit it to the local
authority at its
next meeting for its information.”
[25]
Subsection 15(1) of the PVO states:
“Within twenty-one days after the
submission of the provisional valuation roll to the local authority as
contemplated in section
10, the town clerk shall in the prescribed form cause a
notice to be published in the Provincial Gazette and twice with an interval
of
one week in at least two newspapers circulating in the area of jurisdiction of
the local authority and in such further manner
as the Premier may direct”.
[26]
Subsection 15(1) (b) states:
“[I]nviting any owner of property or
his or her proxy to lodge with the town clerk within such period any objection
in the form
prescribed in respect of any matter relating to his or her own
property recorded on the provisional valuation roll as contemplated
in section
9.”
[27]
This was not the first challenge to the validity of the provisional
valuation roll.  On 27 May 2002 a body known as the Rates Action
Group (RAG)
launched an application in the Cape High Court under case number 4724/02,
making the challenge.  RAG appears to have
suspended its application because by
the time the matter came before this Court they had not pursued it any further.
[28]
The respondents’
grounds of invalidity appear to have much in common with aspects which had been
identified as areas of potential
vulnerability
in a memorandum by an attorney representing the
City.  The memorandum had been submitted to the Portfolio Committee on
Provincial
and Local Government Affairs (Portfolio Committee) in the
Legislative Assembly shortly before the institution of the application.
[29]
The PVO was promulgated on 22 December 1993 but section 38 of the
PVO delayed its date of operation to 1 July 1994.
[30]
Subsection 235(6) of the interim Constitution states:
“The power to exercise executive
authority in terms of laws which, immediately prior to the commencement of this
Constitution,
were in force in any area which forms part of the national
territory and which in terms of section 229 continue in force after such

commencement, shall be allocated as follows:
(a) All
laws with regard to matters which—
(i) do
not fall within the functional areas specified in Schedule 6; or
(ii) do
fall within such functional areas but are matters referred to in paragraphs (a)
to (e) of section 126(3) (which shall be
deemed to include all policing matters
until the laws in question have been assigned under subsection (8) and for the
purposes
of which subsection (8) shall apply mutatis mutandis),
shall be
administered by a competent authority within the jurisdiction of the national
government: Provided that any policing function
which but for subparagraph (ii)
would have been performed subject to the directions of a member of the
Executive Council of a province
in terms of section 219(1) shall be performed
after consultation with the said member within that province.
(b) All
laws with regard to matters which fall within the functional areas specified in
Schedule 6 and which are not matters referred
to in paragraphs (a) to (e) of
section 126(3) shall—
(i) if
any such law was immediately before the commencement of this Constitution
administered by or under the authority of a functionary
referred to in
subsection (1)(a) or (b), be administered by a competent authority within the
jurisdiction of the national government
until the administration of any such
law is with regard to any particular province assigned under subsection (8) to
a competent
authority within the jurisdiction of the government of such
province; or
(ii) if
any such law was immediately before the said commencement administered by or
under the authority of a functionary referred
to in subsection (1)(c), subject
to subsections (8) and (9) be administered by a competent authority within the
jurisdiction of
the government of the province in which that law applies, to
the extent that it so applies: Provided that this subparagraph shall
not apply
to policing matters, which shall be dealt with as contemplated in paragraph
(a).
(c) In
this subsection and subsection (8) “competent authority” shall mean—
(i) in
relation to a law of which the administration is allocated to the national
government, an authority designated by the President;
and
(ii) in
relation to a law of which the administration is allocated to the government of
a province, an authority designated by the
Premier of the province.”
[31]
Subsection 235(8) of the interim Constitution states:
“(a) The
President may, and shall if so requested by the Premier of a province, and
provided the province has the administrative
capacity to exercise and perform
the powers and functions in question, by proclamation in the Gazette assign,
within the framework
of section 126, the administration of a law referred to in
subsection (6)(b) to a competent authority within the jurisdiction of
the
government of a               province, either generally or to the extent
specified in the proclamation.
(b) When the President so assigns the
administration of a law, or at any time thereafter, and to the extent that he
or she considers
it necessary for the efficient carrying out of the assignment,
he or she may—
(i) amend
or adapt such law in order to regulate its application or interpretation;
(ii) where
the assignment does not relate to the whole of such law, repeal and re-enact,
whether with or without an amendment or
adaptation contemplated in subparagraph
(i), those of its provisions to which the assignment relates or to the extent
that the
assignment relates to them; and
(iii)
regulate any other matter necessary, in his or her opinion, as a result of the
assignment, including matters relating to the
transfer or secondment of persons
(subject to sections 236 and 237) and relating to the transfer of assets,
liabilities, rights
and obligations, including funds, to or from the national
or a provincial government or any department of state, administration,
force or
other institution.
(c) In regard to any policing power
the President may only make that assignment effective upon the rationalisation
of the police
service as contemplated in section 237: Provided that such
assignment to a province may be made where such rationalisation has been

completed in such a province.
(d) Any reference in a law to the
authority administering such law, shall upon the assignment of such law in
terms of paragraph
(a) be deemed to be a reference mutatis mutandis to the
appropriate authority of the province concerned.
[32]
Subsection 86(1) of the Municipal Ordinance states:
“Subject to the provisions of
subsections (1A), 2 and (2A), the valuations on which any rates are assessed by
a council in terms
of section 85 shall be the valuations appearing on the
valuation roll in operation in its municipal area on the date on which such

rates become due and payable.”
[33]
Above n 2 at para 19.
[34]
Subsection 154(2) of the Constitution states:
“Draft national or provincial
legislation that affects the status, institutions, powers or functions of local
government must
be published for public comment before it is introduced in
Parliament or a provincial legislature, in a manner that allows organised
local
government, municipalities and other interested persons an opportunity to make
representations with regard to the draft legislation.”
[35]
Subsection 229(5) of the Constitution states:
“National legislation envisaged in
this section may be enacted only after organised local government and the
Financial and Fiscal
Commission have been consulted, and any recommendations of
the Commission have been considered.”
[36]
See above n 34.
[37]
See above n 35.
[38]
Above at para 21.
[39]
Above n 2 at para 29.
[40]
Mashavha v President of the RSA and Others
2004 (12) BCLR
1243 (CC).
[41]
Id at para 25.
[42]
Footnote in judgment:
“In the 1996 Constitution
transitional arrangements are dealt with in Schedule 6.  Under the heading
‘Continuation of existing
law’ s 2(1) states as follows:  ‘All law that was in
force when the new Constitution took effect, continues in force . . .
‘ Law
which was ‘in force’ therefore also refers to ‘existing law’, and not to law which
was ‘in operation’.”
[43]
For a discussion on the nature of
expository legislation see
National Education Health and Allied Workers
Union v University of Cape Town and Others
2003 (3) SA 1
(CC);
2003 (2)
BCLR 154
(CC) at para 66;
Patel v Minister of the Interior and Another
1955 (2) SA 485
(A) at 493A-F;
Kantor v MacIntyre NO and Another
1958 (1) SA 45
[F.C.] at 48 F-G
; and
Ormond Investment Co v Betts
[1928] AC 143
(HL) at 156.
[44]
Subsection
155(1)(a) of the Constitution provides:
“There are the following categories
of municipality:
(a) Category A: A municipality that
has exclusive municipal executive and legislative authority in its area.”
[45]
Section 1 of the PVO defines a local authority as:
“[A] local council, a metropolitan
local council, a representative council, a rural council and a district council
as defined
in section 10B of the Local Government Transition Act, 1993 (Act 209
of 1993”.
This definition was introduced on 6
June 1997 by Ordinance 8 of 1997 that grafted onto the PVO the new definition
by reference to
section 10B of the Transition Act.  It is trite that at the
inception of the new definition, the Structures Act in terms of which
the City
is established had not been enacted.
[46]
Above n 2 at para 45.
[47]
Subsection 93
(8) states:
“(a) With effect from 5 December 2000
and subject to paragraph (b), any reference in a law referred to in item 2 of
Schedule 6
to the Constitution of the Republic of South Africa, 1996 (Act No.
108 of 1996), to a municipal council, municipality, local authority
or another
applicable designation of a local government structure, must be construed as a
reference to a municipal council or a
municipality established in terms of this
Act, as the case may be.
(b) Paragraph (a) only applies to a
law referred to in item 2 of Schedule 6 to the Constitution of the Republic of
South Africa,
1996 (Act No. 108 of 1996), in so far as such a law is still
applicable or becomes applicable to a municipal council or a municipality,
as
the case may be, at the time the
Local Government Laws Amendment Act, 2002
,
comes into effect.”
[48]
Item 26(1)(a) of Schedule 6 of the
Constitution states:
“(1) Notwithstanding the provisions
of sections 151, 155, 156 and 157 of the new Constitution−
                (a) the provisions of
the Local Government Transition Act, 1993 (Act 209 of          (1993),
as may
be amended from time to time by national legislation consistent with       the
new Constitution, remain in force in
respect of a Municipal Council until a      Municipal
Council replacing that Council has been declared elected as a result of
the          first
general election of the Municipal Councils after the commencement of the new   Constitution”.
[49]
See subsection 151(1) of the Constitution.
[50]
See subsection 151(2) of the Constitution and section 1 of the
Structures Act.
[51]
Subsection 10G(6) of the Transition Act states:
“A local council, metropolitan local
council and rural council shall, subject to any other law, ensure that—
(a)
properties within its area of jurisdiction are valued or measured at intervals
prescribed by law;
(b) a
single valuation roll of all properties so valued or measured is compiled and
is open for public inspection; and
(c) all
procedures prescribed by law regarding the valuation or measurement of
properties are complied with:
Provided that if, in the case of any
property or category of properties, it is not feasible to value or measure such
property, the
basis on which the property rates thereof shall be determined,
shall be as prescribed: Provided further that the provisions of this
subsection
shall be applicable to district councils in so far as such councils are
responsible for the valuation or measurement
of property within a remaining
area or within the areas of jurisdiction of representative councils.”
[52]
Subsection 10G(7)(a)(i) of the Transition Act states:
“A local council, metropolitan local
council and rural council may by resolution, levy and recover property rates in
respect of
immovable property in the area of jurisdiction of the council
concerned: Provided that a common rating system as determined by the

metropolitan council shall be applicable within the area of jurisdiction of
that metropolitan council: Provided further that the
council concerned shall in
levying rates take into account the levy referred to in item 1 (c) of
Schedule 2: Provided further
that this subparagraph shall apply to a district
council in so far as such council is responsible for the levying and recovery
of property rates in respect of immovable property within a remaining area or
in the area of jurisdiction of a representative council.”
[53]
Above n 2 at paras 36-37.
[54]
Counsel for the City submitted, correctly in my view, that the
judgment of the High Court has the effect that the City not being
a “local
authority” as defined in legislation pre-existing at the time of its
establishment, it does not have power reserved
for a “local authority”.  See
for example the National Building Regulations and Building Standards Act, 103
of 1977;
Fire Brigade Services Act, 99 of 1987
;
Criminal Procedure Act, 51 of
1977
, and Electricity Act, 41 of 1987.
[55]
The proviso found in subsection 14(1)(c) does not apply to the City
as it regulates district municipalities.
[56]
Above n 2 at para 42.
[57]
Provincial Gazette 5588 PN 479/2000, 22 September 2000.
[58]
Above n 2 at paras 43-44 makes the point that a savings provision
such as found in subsection 16(2) of the Transition Act is clearly
missing in
the transitional arrangement under section 14 of the Structures Act, above n 6.
[59]
Id at paras 10-17.
[60]
See the Preamble to the Structures Act above para 4.
[61]
For the role
of history as part of contextual interpretation of a provision compare:
First
National Bank of South Africa Ltd t/a Wesbank v Commissioner, South African
Revenue Service and Another; First National Bank
of SA Ltd t/a Wesbank v
Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC) at para
64.  See also Du Plessis
Re-Interpretation of Statutes
(Butterworths,
Durban 2002) at 114, 115, 226 and 267; De Ville
Constitutional and Statutory
Interpretation
(Interdoc Consultants, 2000) at 229-232
.
[62]
Casus omissus
simply means an
omitted case. When a statute or an instrument of writing undertakes to foresee
and to provide for certain contingencies, and through
mistake, or some other
cause, a case remains to be provided for, it is said to be a
casus omissus
.Â
See De Ville id at 135.  The finding of whether or not there is a
casus
omissus
is deemed to be one of statutory interpretation of the provision in
question.  The general
casus omissus
rule is that the legislature must
be presumed to have exhaustively enacted everything and therefore it is not for
the courts to
furnish what has been omitted in the language of the statute.Â
See Devenish,
Interpretation of Statutes
(Juta & Co, Ltd, Kenwyn
1992) at 77.  In
Stafford v Special Investigating Unit
1999 (2) SA 130
(E) at 140
Leach J explained the nature of this presumption as follows:
“[T]here is a presumption that the
Legislature has dealt exhaustively with the subject of the enactment and that
it is therefore
not for the courts to supply omissions in the provisions of a
statute … As a Court cannot act upon mere conjecture and speculate
as to
whether or not the Legislature might have overlooked something, it cannot
supplement a statute by providing what it surmises
the Legislature omitted. The
Court therefore must give effect to what the Act says and not to what it thinks
it ought to have said
. . . [A]
casus omissus
'cannot be supplied by the
Court, whose sole duty is to construe the Act as it stands'.”
[63]
See
Investigating Directorate: Serious Economic Offences and
Others v Hyundai Motor Distributors(Pty) Ltd and Others: In Re Hyundai Motor

Distributors(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC);
National Coalition for Gay and Lesbian Equality
and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000
(1) BCLR 39
;
De Lange v Smuts NO and Others
1998 (3) SA 785 (CC); 1998
(7) BCLR 779 (CC).
[64]
Randell
Municipal Law in the Province of the Cape of Good Hope,
South
Africa
4ed (Butterworths, Durban 1977) at 186.
[65]
For an overview on the circumstances where the courts have held
that by-laws that go beyond the powers granted by a statute are
invalid, see
Randell id at 189-91.
[66]
Joubert (eds)
The Law of South Africa
Volume 15 at para 295.
[67]
For instance in
Johannesburg City Council v Makaya
1945 AD 252
at 256 it is stated that:
“Neither a municipal council nor any
other subordinate legislative body has any power to confer jurisdiction or
impose duties
of any kind upon courts of law established by Act of Parliament
unless such subordinate legislative body is given power to do so
by Parliament
itself.”
[68]
Above n 8.
[69]
Id at para 38.  See also para 31.
[70]
Fedsure
id and
African National Congress
above n 8.
[71]
Fedsure
id at paras 35 and 39.
[72]
Id at para 39.
[73]
Id at para 54.
[74]
Id at paras 55, 56 and 58. See
African National
Congress
above n 8 and
Executive Council, Western Cape
above n 9.
[75]
Ex Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa
,
1996
1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC).
[76]
Id at para 462.
[77]
Subsection 40(1) states:
“In the Republic, government is
constituted as national, provincial and local spheres of government which are
distinctive, interdependent
and interrelated.”
[78]
Subsection 41(1)(e) states:
“All spheres of government and all
organs of state within each sphere must−
(e)
respect the constitutional status, institutions, powers and functions of
government in the other spheres”.
[79]
  Subsection 41(1)(g) states:
“[E]xercise their powers and perform
their functions in a manner that does not encroach on the geographical,
functional or institutional
integrity of government in another sphere”.
[80]
Subsection 43(c) states:
“In the Republic, the legislative
authority –
(c) of the
local sphere of government is vested in the Municipal Councils, as set out in
section 156.”
[81]
Subsection 151(2) states:
“The executive and legislative
authority of a municipality is vested in its Municipal Council.”
[82]
Subsection 151(3) of the Constitution states:
“A municipality has the right to
govern, on its own initiative, the local government affairs of its community,
subject to national
and provincial legislation, as provided for in the
Constitution.”
[83]
Pimstone “Local Government” in Chaskalson et al
Constitutional
Law of South Africa
(1996) [Revision Service 5, 1999] Chapter 5A at 5A-26.
[84]
Id at 5A-26-27.
[85]
Id at 5A-27 states:
“It will be noted that legislative
encumbrances placed on local government restrict its ability to develop
individualized structures
of government, but while such restrictions are
substantial, there does appear to be some scope for local government to evolve
variations
within the structural scheme . . . .  In this sense municipalities
could be able individually to shape the manner in which they
carry out their
mandate, within the permissible confines of the Constitution and national and
provincial legislation.  But any
benefits deriving from enhanced status carry a
substantial burden.  The notion of ‘sphere’ underwrites the substantially
increased
constitutional obligations that local government is now compelled to
fulfil.  In this manner, local government as a sphere of government
is
intimately connected to the social and economic promise of the Constitution.”
[footnotes omitted]
[86]
In Re Certification of the Constitution of the
Republic of South Africa, 1996
above n 75 at para 194;
Pharmaceutical Manufacturers Association of
SA and Another: In Re Ex parte President of the Republic of South Africa and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at paras 20, 33, 41 and
45;
Fedsure
above n 8 at para 56.
[87]
Subsection 86(1A) of the Municipal Ordinance states:
“A council may assess the general
rate contemplated in subsection 82(1) on ratable property recorded on the
provisional valuation
roll for a financial year to which such roll is
applicable, after the notice referred to in subsection 15(1)(a) of the Property

Valuation Ordinance, 1993, has been published for the first time, and any
general rate so assessed shall be deemed to have been
assessed on the valuation
roll from the date on which such rate was assessed on the provisional valuation
roll; provided that,
except with the approval of the Administrator, such rate
shall not be so assessed for more than one financial year in succession.”
[88]
Fedsure
above n 8.
[89]
  Above n 2 at para 49.
[90]
President, Ordinary Court Martial, and Others v Freedom of
Expression Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
(CC) at para 16.
[91]
See
Independent Electoral Commission v
Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001
(9) BCLR 883
(CC) at para 11 and
Uthukela District
Municipality and Others v President of the Republic of South Africa and Others
[2002] ZACC 11
;
2003 (1) SA 678
(CC);
2002 (11) BCLR 1220
(CC) at para 12.
[92]
Uthukela
id.
[93]
Above n 2 at paras 22 and 56.
[94]
The High Court made the following order:
“1. It is declared that:
1.1.
Section 21
of
the
Local Government Laws Amendment Act 51 of 2002
is inconsistent with the
Constitution and invalid to that extent;
1.2.
The first
respondent’s conduct in passing its resolution of 29 May 2002 that property
rates be levied in accordance with the 2000
General Valuation Roll as set out
in section (d)(i) of its resolution (as recorded in Annexure RW28 to the
opposing affidavit of
R Wootton at page 595 and 596 of the record in case No
4995/02) is inconsistent with the Constitution and invalid to the extent

thereof.
2. First respondent is interdicted and restrained from
levying and recovering property rates on the basis of property valuations

contained in the provisional valuation roll which the first respondent opened
for inspection and objection on 21 May 2002.
3.1 First and second respondents, jointly and
severally, the one paying the other to be absolved, are to pay the applicants’
costs
in case 4995/02.
3.2 The parties in case 9507/02 will each bear their
own costs.
4. The order referred to in 1.1 above is referred to
the Constitutional Court for confirmation.
5. The orders referred to in 1 and 2 above are
suspended for a year from the date of the conclusion of the proceedings
referred
to in 4 above to allow the competent authorities to correct the
defects which gave rise to the declarators.
6. Execution of the order in 3.1 above is suspended
pending the outcome of proceedings in 4 above.”