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[2011] ZAWCHC 371
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Berg River Municipality v Liebenberg NO and Others (26078/2010) [2011] ZAWCHC 371 (25 August 2011)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE NO: 26078/2010
Before: The Hon. Mr Justice Binns-Ward
In the matter between:
BERG RIVER MUNICIPALITY
...................................................................................
Applicant
and
JACOBUS JOHANNES LIEBENBERG N.O.
AND 86 OTHER PARTIES
..............................................................................
Respondents
JUDGMENT DELIVERED: 25 AUGUST 2011
______________________________________________________________
BINNS-WARD J:
The applicant, which is a municipality established in terms of the
Local Government: Municipal Structures Act 117 of 1998 (‘the
Structures Act’), has applied for eight declaratory orders. If
granted, the
declarators
sought would be to the effect that
the ‘rural levies’ imposed by it in respect of
properties in its area in the 2001/2
and 2002/3 financial years were
lawfully and validly imposed, as were the rates levied by it on
rural property within its area
in the 2003/4, 2004/5, 2005/6,
2006/7, 2007/8 and 2008/9 financial years. (In terms of the
applicable statutory provisions, a
municipality’s financial
year has, during the entire period concerned, run between 1 July
in each year and 30 June
of the succeeding year.
1
)
The orders are sought because it has been contended by the
respondents, who make up a significant number of the owners of rural
property within the municipal area, that the aforementioned imposts
are invalid.
The respondents have declined to make payment of the assessed rural
levies and rates and have defended enforcement proceedings
instituted against them by the municipality in various magistrates’
courts in the municipal area. Both sides in the disputes
have agreed
that the current proceedings might afford a convenient means of
cutting the Gordian knot; in particular, because
they are also
agreed that a determination of the alleged invalidity of the imposts
is a matter beyond the jurisdiction of a magistrate’s
court.
Indeed, I was asked by counsel for both sides to make orders
sounding in money against the respondents in the amounts
in which it
is now agreed they would be liable in such event, together with
appropriate costs orders, should the application
be decided in
favour of the applicant - effectively determining all matters in
issue between the parties in the magistrates’
courts, and
thereby superseding those proceedings. Thus it is apparent that what
have been cast as proceedings for declaratory
relief are in fact
enforcement proceedings.
2
So recognised, it is also apparent that the respondents’
opposition to the application is founded on a number of collateral
challenges to the validity of the imposts
3
which had been imposed by the municipality in terms of decisions
which were legislative in character.
4
(That, no doubt, explains why there is no counter-application by the
respondents for an order declaring the imposts unlawful.)
In the circumstances it has been appropriate to decide the
application with regard to its true, rather than ostensible,
character;
the result being determined not by whether the
municipality has positively established that the imposition of the
rates and levies
concerned was validly effected, but by whether the
challenges raised by the respondents are good or not. By the time of
the hearing
the respondents had abandoned their challenge to the
rates imposed in respect of the 2003/4 financial year.
The applicant was established in the final phase of local government
restructuring regulated in terms of the Local Government
Transition
Act 209 of 1993 (‘the LGTA’). The Structures Act and the
Local Government: Municipal Systems Act 32 of
2000 (the ‘Systems
Act’), which came into effect on 1 February 1999 and
1 March 2001, respectively, were
the first major components of
the legislative framework contemplated in terms of the Constitution
that were put in place to regulate
local government upon the
completion of the constitutional restructuring at which the LGTA had
been directed. Two further major
components were, however, required
to complete that framework. Those components, the Local Government:
Municipal Finance Management
Act 56 of 2003 (‘the MFMA’)
and the Local Government: Municipal Property Rates Act 6 of 2004
(‘the MPRA’),
were enacted some years after the
establishment, in late 2000, of municipalities, such as the
applicant, in the manner envisaged
by chap 7 of the
Constitution.
Pending the completion of the required legislative framework by the
introduction of the MFMA and MPRA, certain provisions of
the LGTA
continued to operate, as indeed did some provisions of the old order
provincial ordinances, such as (in the Western
Cape) the Property
Valuation Ordinance, 1993 (Cape), and the Municipal Ordinance 20 of
1974 (Cape). Ascertaining precisely which
legislation applied in
particular areas of municipal governance at various stages during
the restructuring process is further
complicated by the fact that
the continuation of the operation of some old order legislation for
many years into the post-constitutional
era in some instances had
the consequence that discrete, but equivalent, legislative schemes
operated side by side, with the
result that a municipality had a
choice which to use.
5
To give but one example of this situation, a municipality could
avail of chap 8 of the Municipal Ordinance
6
or s 10G(7) of the
LGTA
7
for rating purposes; and in certain respects both pieces of
legislation could be applied together. An added complication arises
from the transitional provisions in the MFMA
8
and the MPRA,
9
which extended the working life of some provisions of preceding
legislation further into the constitutional era.
An appreciation of the incidence of the aforementioned legislative
history in respect of the powers of municipalities to impose
rates,
levies and other charges during the 2000 to 2009 financial years is
necessary in order to understand the issues underlying
the disputes
between the parties. At the outset it needs observing, however, that
a common thread characterised the exercise
of the powers under all
the applicable legislative schemes throughout the transition: the
determination of rates and tariffs
has always been attended by an
opportunity for ratepayers and other interested persons to
participate, by way of the right to
make representations and to
submit objections, before any rate or tariff is finally or
effectively fixed by a municipal council.
The statutory provision of
the aforementioned opportunity manifests in its various guises a
mechanism to achieve the objects
of local government in terms of
s 152 of the Constitution, including the provision of
democratic and accountable government
for local communities and the
encouragement of the involvement of communities in the matters of
local government. The proper
approach to construing and applying the
aforementioned constitutional legislation is to do so, where
plausible, purposively,
in harmony with its objects and values.
10
The original power of municipalities to impose rates, levies and
charges is founded on the provisions of s 229 of the
Constitution, which provides in relevant part:
229
Municipal fiscal powers and functions
(1) Subject to subsections (2), (3) and (4), a
municipality may impose-
(a) rates on property and surcharges on fees for
services provided by or on behalf of the municipality; and
(b)
if authorised by national legislation
, other
taxes, levies and duties appropriate to local government or to the
category of local government into which that municipality
falls, but
no municipality may impose income tax, value-added tax, general sales
tax or customs duty.
(2) The power of a municipality to impose rates on
property, surcharges on fees for services provided by or on behalf of
the municipality,
or other taxes, levies or duties-
(a) ….; and
(b) may be regulated by national legislation.
It is immediately apparent that the Constitution makes a distinction
between ‘
rates on property
’ and ‘
other
taxes, levies and duties
’ and between ‘rates’
and charges or ‘surcharges for services provided by or on
behalf of the municipality’.
The word ‘
rates
’
is not specially defined and bears its ordinary meaning in the
context of s 229.
11
In
Gerber and Others v Member of the Executive Council for
Development Planning and Local Government, Gauteng, and Another
2003 (2) SA 344
(SCA);
[2002] 4 All SA 518
,
12
the Supreme Court of Appeal (‘the SCA’) treated with the
relevant meaning of the word as follows:
The ordinary meaning of 'rate' is well established. The
Concise Oxford Dictionary 7th ed defines it as follows:
“…
.stated value of
numerical proportion prevailing or to prevail between two sets of
things . . . amount etc mentioned for application
to all comparable
cases; standard or way of reckoning; A (measure of) value, tariff
charge, (rate of exchange, of interest); speed
(travelling at a great
rate; prices increasing at a dreadful rate); . . . 2.
assessment
levied by local authorities for local purposes at so much per pound
of assessed value of buildings and land owned
;
(in pl) amount thus paid by householder etc . . .”.
(Bold emphasis added
[in the original]
.)
[24] This meaning which I have emphasised accords with
the tried and trusted practice of calculating property rates in
relation
to size or value of properties. There is nothing to suggest
that the power given by s 229(1)(a) of the Constitution to local
authorities
to impose property rates was a power to depart from this
established meaning. Certainly the scheme for imposing a property
rate
set out in s 10G(6) of the LGTA is consistent with the way in
which the words ‘property rate’ have always been
understood
and thus accords well with its usage in the Constitution.
At the time of the establishment of the applicant municipality, in
December 2000, the power of municipalities to impose rates
was
(ignoring for present purposes chap 8 of the Municipal
Ordinance 20 of 1974 (Cape)) regulated by the provisions of
s 10G(6), (6A) and (7) of the LGTA, which provided as follows:
(6) 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
13
:
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.
(6A)(a) Despite anything to the contrary in any other
law, a municipality must value property for purposes of imposing
rates on
property in accordance with generally recognised valuation
practices, methods and standards.
(b) For purposes of paragraph (a) -
(i) physical inspection of the property to be valued, is
optional; and
(ii) in lieu of valuation by a valuer, or in addition
thereto, comparative, analytical and other systems or techniques may
be used,
including-
(aa) aerial photography;
(bb) information technology;
(cc) computer applications and software; and
(dd) computer assisted mass appraisal systems or
techniques.
(7) (a)(i) 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.
(ii) A municipality may by resolution supported by a
majority of the members of the council levy and recover levies, fees,
taxes
and tariffs in respect of any function or service of the
municipality.
(b) In determining property rates, levies, fees, taxes
and tariffs (hereinafter referred to as charges) under paragraph (a),
a municipality
may-
(i) differentiate between different categories of users
or property on such grounds as it may deem reasonable;
(ii) in respect of charges referred to in paragraph
(a)(ii), from time to time by resolution amend or withdraw such
determination
and determine a date, not earlier than 30 days from the
date of the resolution, on which such determination, amendment or
withdrawal
shall come into operation; and
(iii) recover any charges so determined or amended,
including interest on any outstanding amount.
(c) After a resolution as contemplated in paragraph (a)
has been passed, the chief executive officer of the municipality
shall forthwith
cause to be conspicuously displayed at a place
installed for this purpose at the offices of the municipality as well
as at such
other places within the area of jurisdiction of the
municipality as may be determined by the chief executive officer, a
notice
stating-
(i) the general purport of the resolution;
(ii) the date on which the determination or amendment
shall come into operation;
(iii) the date on which the notice is first displayed;
and
(iv) that any person who desires to object to such
determination or amendment shall do so in writing within 14 days
after the date
on which the notice is first displayed.
(d) Where-
(i) no objection is lodged within the period referred to
in paragraph (c)(iv), the determination or amendment shall come into
operation
as contemplated in paragraph (b)(ii);
(ii) an objection is lodged within the period referred
to in paragraph (c)(iv), the municipality shall consider every
objection
and may amend or withdraw the determination or amendment
and may determine a date other than the date contemplated in
paragraph
(b)(ii) on which the determination or amendment shall come
into operation, whereupon paragraph (c)(i) shall with the necessary
changes apply.
(e) The chief executive officer shall forthwith send a
copy of the notice referred to in paragraph (c) to the MEC and cause
a copy
thereof to be published in the manner determined by the
council.
(f) Nothing in this section contained shall derogate
from section 9 of the Electricity Act, 1987 (Act 41 of 1987).
Section 10G of the LGTA was repealed in terms of s 179(1) of
the MFMA, which came into operation with effect from 1 July
2005.
14
In terms of s 179(2) of the MFMA, however, ‘
the
provisions contained in subsections (6), (6A) and (7) of
section 10G
of the
Local Government Transition Act, 1993
…remain in force
until the legislation envisaged in section 229(2)(b) of the
Constitution is enacted
’. The expression ‘
the
legislation envisaged in s 229(2)(b)
’ was plainly an
intended reference to the legislation that manifested by way of the
MPRA (which, although it was enacted
only in 2004, was before the
national assembly in draft form as a Bill during 2003
15
).
In terms of s 81 of the Constitution, parliamentary legislation
is enacted once a Bill approved by the legislature is
assented to by
the President.
16
Having regard, however, to the apparent object of s 179(2) of
the MFMA, which was to keep the transitional provisions of
subsections (6), (6A) and (7) of s 10G of the LGTA in
place until they were replaced by the then still missing component
of the legislation necessary to completely replace the transitional
fiscal governance framework which had subsisted in terms
of s 10G
of the LGTA, I consider that, save to the extent that they were
incompatible with provisions of the MFMA that came
into effect on
1 July 2004, the residual provisions of s 10G therefore
remained in operation until the MPRA came into
operation, that is
until 2 July 2005.
17
Mention was made above that equivalent legislation to s 10G(7)
of the LGTA had continued to operate alongside the provision
in the
form of Part 2 of chap 8 of the Municipal Ordinance. The MPRA
repealed that part of the Ordinance, but, in terms
of s 88(1)
of the Act,
18
municipalities which were using the provisions of the Ordinance for
rating purposes were permitted to continue doing so until
the
implementation in terms of s 32(1) of the Act of a valuation
roll for their area prepared in terms of the Act. The applicant
municipality at no stage expressly purported to rely in its relevant
decision-making on chap 8 of the Ordinance; nevertheless,
as
will be described later, there are indications in the evidence that
some provisions of the Ordinance continued to guide its
rating
process. The contention in the applicant’s heads of argument
that the transitional provisions in ss 88-89 of
the MPRA had
the effect of postponing the effect of the repeal of the residual
provisions of s 10G of the LGTA in terms
of s 179 of the
MFMA rested on an incorrect apprehension of the import of those
provisions. Section 10G(7) of the LGTA was
not legislation repealed
in terms of the MPRA, and therefore not legislation comprehended by
s 88(1) of the MPRA. The transitional
provisions of s 89
of the MPRA are directed only at permitting municipalities during
the transitional period to levy rates
on the basis of valuation
rolls prepared under previous legislation superseded by the MPRA. On
the facts of the current matter
they do not arise for consideration.
In his oral argument, Mr
Heunis
SC, who (together with Ms
van
Huyssteen
) appeared for the applicant, accepted that the MPRA,
and not the LGTA, was the governing legislation in respect of the
rates
imposed in the 2006/7 and succeeding years. He submitted,
however, that the municipality’s purported reliance on
s 10G(7)
of the LGTA during those years did not render its
rating decisions invalid because what was in fact done purportedly
under the
LGTA substantially gave effect to the requirements of the
MPRA. I shall treat with that argument later. An alternative
argument
that a reference to s 10G(7) of the LGTA should be
read in, either in s 88(1), or in the schedule to the MPRA, has
no merit. Such a reading-in might be supported only if it were
necessary to avoid absurdity, or to give effect to object of the
provision; cf.
Rennie NO v Gordon and Another NNO
1988 (1) SA
1
(A) 22E-F;
Palvie v Motale Bus Service (Pty) Ltd
[1993] ZASCA 105
;
1993 (4)
SA 742
(A) 749B-C and
Bernstein and Others v Bester and Others
NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) para 105. It is not.
Certain provisions of the MFMA (ss 15-22) which came into
effect on 1 July 2004 regulate the procedure to be followed by
municipal councils in the adoption of their annual budgets. These
provisions of the MFMA, which are described in some detail
below, do
so in a different manner to the equivalent provisions of s 10G(7)
of the LGTA, which nevertheless remained in
effect until 2 July
2005.
Section 16 of the MFMA requires a municipality to adopt a budget for
the forthcoming financial year prior to the commencement
of such
year. The mayor is required to table a draft budget at least 90 days
before the start of the budget year. The purpose
of the 90 day
minimum requirement is expressly to facilitate the approval by the
municipal council of an annual budget before
the start of the
financial year in which it is to pertain.
19
In terms of s 15 of the MFMA, a municipality, except where
otherwise provided in terms of the Act, may not incur any
expenditure
other than in accordance with the provisions of an
approved budget.
In terms of s 17(3) of the MFMA, when the draft budget is
tabled in terms of s 16, it must be supported by a number
of
documents and a variety of information of the nature set forth in
paragraphs (a) to (m) of the subsection. The prescribed
accompanying
documents include ‘
draft resolutions imposing any municipal
tax and setting any municipal tariffs as may be required for the
budget year
’.
20
It should be apparent from the material that is tabled in terms of
s 17(3) of the MFMA what the sources of municipal revenue
are
intended to be in the forthcoming budget year and how this is
intended to be appropriated in respect of the municipality’s
anticipated capital and operating expenditure. The requirement that
there be a draft rates resolution falls to be understood
in that
context.
Sections 22 -24 of the MFMA provide as follows:
22
Publication of annual budgets
Immediately after an annual budget is tabled in a
municipal council, the accounting officer of the municipality must-
(a) in accordance with Chapter 4 of the Municipal
Systems Act-
(i) make public the annual budget and the documents
referred to in section 17 (3); and
(ii) invite the local community to submit
representations in connection with the budget; and
(b) submit the annual budget-
(i) in both printed and electronic formats to the
National Treasury and the relevant provincial treasury; and
(ii) in either format to any prescribed national or
provincial organs of state and to other municipalities affected by
the budget.
23
Consultations on tabled budgets
(1) When the annual budget has been tabled, the
municipal council must consider any views of-
(a) the local community; and
(b) the National Treasury, the relevant provincial
treasury and any provincial or national organs of state or
municipalities which
made submissions on the budget.
(2) After considering all budget submissions, the
council must give the mayor an opportunity-
(a) to respond to the submissions; and
(b) if necessary, to revise the budget and table
amendments for consideration by the council.
(3) The National Treasury may issue guidelines on the
manner in which municipal councils should process their annual
budgets, including
guidelines on the formation of a committee of the
council to consider the budget and to hold public hearings.
(4) No guidelines issued in terms of subsection (3) are
binding on a municipal council unless adopted by the council.
24
Approval of annual budgets
(1) The municipal council must at least 30 days before
the start of the budget year consider approval of the annual budget.
(2) An annual budget-
(a) must be approved before the start of the budget
year;
(b) is approved by the adoption by the council of a
resolution referred to in section 17(3)(a)(i); and
(c) must be approved together with the adoption of
resolutions as may be necessary-
(i) imposing any municipal tax for the budget year;
(ii) setting any municipal tariffs for the budget year;
(iii) approving measurable performance objectives for
revenue from each source and for each vote in the budget;
(iv) approving any changes to the municipality's
integrated development plan; and
(v) approving any changes to the municipality's
budget-related policies.
(3) The accounting officer of a municipality must submit
the approved annual budget to the National Treasury and the relevant
provincial
treasury.
Section 24(2)(c)(i) of the MFMA thus makes it clear that the
imposition of rates is an integral part of the adoption of the
budget.
This much is reiterated in the provisions of s 12(2) of
the MPRA.
21
Section 22 of the MFMA cross-references to chap 4 of the
Systems Act. The object of chap 4 of the Systems Act (which
comprises ss 16-22 of the Act) is to regulate the manner in
which a municipality must fulfil its obligation of community
participation. The origin of the obligation lies in s 152(2)
read with s 152(1)(a) and (e) of the Constitution. Of
particular relevance in the current matter are ss 21 and 21A,
which provide:
21
Communications to local community
(1) When anything must be notified by a municipality
through the media to the local community in terms of this Act or any
other
applicable legislation, it must be done-
(a) in the local newspaper or newspapers of its area;
(b) in a newspaper or newspapers circulating in its area
and determined by the council as a newspaper of record; or
(c) by means of radio broadcasts covering the area of
the municipality.
(2) Any such notification must be in the official
languages determined by the council, having regard to language
preferences and
usage within its area.
(3) A copy of every notice that must be published in the
Provincial Gazette
or the media in terms of this Act or any
other applicable legislation, must be displayed at the municipal
offices.
(4) When the municipality invites the local community to
submit written comments or representations on any matter before the
council,
it must be stated in the invitation that any person who
cannot write may come during office hours to a place where a staff
member
of the municipality named in the invitation, will assist that
person to transcribe that person's comments or representations.
(5) (a) When a municipality requires a form to be
completed by a member of the local community, a staff member of the
municipality
must give reasonable assistance to persons who cannot
read or write, to enable such persons to understand and complete the
form.
(b) If the form relates to the payment of money to the
municipality or to the provision of any service, the assistance must
include
an explanation of its terms and conditions.
21A
Documents to be made public
(1) All documents that must be made public by a
municipality in terms of a requirement of this Act, the Municipal
Finance Management
Act or other applicable legislation, must be
conveyed to the local community-
(a) by displaying the documents at the municipality's
head and satellite offices and libraries;
(b) by displaying the documents on the municipality's
official website, if the municipality has a website as envisaged by
section
21B; and
(c) by notifying the local community, in accordance with
section 21, of the place, including the website address, where
detailed
particulars concerning the documents can be obtained.
(2) If appropriate, any notification in terms of
subsection (1) (c) must invite the local community to submit written
comments or
representations to the municipality in respect of the
relevant documents.
(Section 21A was inserted into the Systems Act in terms of
s 5
of the
Local Government: Municipal Systems Amendment Act 44 of 2003
,
with effect from 1 August 2004.)
It is impossible to reconcile certain parts of
s 10G(7)
of the
LGTA with the provisions of chap 4 of the MFMA (in particular
ss 16
-
24
) concerning the imposition of rates by a municipal
council on a co-existent basis. The effect of this impossibility
leads to
two possible conclusions. The first is that,
notwithstanding the provisions of
s 179
of the MFMA, those
parts of
s 10G(7)
of the LGTA which were incompatible with the
provisions of chap 4 of the MFMA must be taken to have been
repealed with effect
from the commencement of chap 4 of the
MFMA; cf.
Government of the Republic of South Africa and
another v Government of KwaZulu and another
1983 (1) SA 164
(A)
at 200-201. The second is that during the period that the relevant
provisions of the two statutes remained on the statute
book side by
side, municipalities could elect which of the two schemes to utilise
for the imposition of rates. In my view it
would offend against the
express provisions of
s 179(2)
of the MFMA to hold that
s 10G(7)
had been impliedly repealed before 2 July 2005,
and accordingly, the second of the aforementioned possible
conclusions is
the correct one. Only the 2005/6 budget year is
affected by this coincidence of legislation.
In the context of the applicable statutory regime just reviewed, it
is time now to examine the imposts concerned individually.
In respect of the 2001/2 and 2003/3 financial years the applicant
purported to impose a tax on rural landowners, which it labelled
a
‘rural levy’ (
Afr.
‘landelike heffing’).
It is plain on the evidence that the levy was imposed because of the
unamenability of rural
land to rating because it had not been
valued. Prior to the introduction of what Mr
Heunis
referred
to as ‘wall-to-wall local government’
22
in South Africa most rural land fell outside municipal jurisdictions
and thus had not been subject to valuation for rating purposes.
The
practical difficulties with which this situation confronted local
authorities seeking to establish an equitable municipal
tax system
across their entire territorial jurisdiction gave rise to litigation
in a number of areas as manifested, amongst others,
in
Gerber
23
and
Howick District Landowners Association v Umgeni Municipality
and Others
2007 (1) SA 206
(SCA).
2001/2 financial year
In the 2001/2 financial year the rural levy imposed by the
municipality was determined at an amount of R1000 per registered
land unit, subject to a maximum liability of R4000 per owner per
farm. On its face this approach was invalid for exactly the same
reasons found by the SCA in respect of the flat rate imposed by the
Eastern Gauteng Services Council in
Gerber
.
24
In other words, because it was not a ‘rate’ within the
meaning of the word in s 229(1)(a) of the Constitution.
Recognising as much, Mr
Heunis
sought to characterise
the impost rather as a levy imposed in terms of s 229(1)(b) of
the Constitution read with 10G(7)(a)(ii)
of the LGTA, instead of a
property rate as envisaged in terms of s 10G(7)(a)(i).
Counsel’s characterisation was at odds with the evidence in
the founding papers as to how the municipality itself saw the
impost. It is evident, both from the founding affidavit deposed to
by the Director: Financial Services of the municipality, as
also
from the contemporaneous documentation, that the flat rate tax on
rural property in the municipal area which had not been
valued for
rating purposes was imposed as a practical measure to tax all
property in the municipality; and to avoid any allegations
of an
unfairly discriminatory treatment of property owners for purposes of
rates liability. The proper characterisation of the
levy is,
however, a question of law. As the only criterion for the liability
to pay it was property ownership, the levy was undoubtedly
a
property rate, and not a charge for a municipal function or service
as contemplated by s 10G(7)(a)(ii). In order for a
levy to
qualify as one imposed in terms of s 10G(7)(a)(ii) of the LGTA,
its imposition would have to be connected with an
identified
function or service of the municipality; it would need to be
recognisable by its express provisions as a charge for
the execution
of such function or the provision of such service, with the
criterion for a liability to pay it being established
by being a
beneficiary or user of the function or service in question
irrespective of property ownership. When it is intended
that the
charge for such functions or services is to be recovered
indiscriminately by means of a property tax, without direct
regard
to the measure of benefit of the municipal function to, or
utilisation of the service concerned by, the municipal taxpayer,
the
only mechanism available to a municipality is by rating. A flat rate
property tax would be a tax that could be levied only
if authorised
by national legislation; see s 229(1)(b) of the
Constitution. Section 10G(7)(a)(ii) of the LGTA did not
provide such
authority.
The collateral challenge by the respondents against the validity of
the imposition of the rural land levy in the 2001/2 financial
year
is therefore sustained.
2002/3 financial year
In respect of the 2002/3 financial year, the municipal council
resolved to impose a ‘levy’ on rural property on a
sliding scale based on the size of the affected land unit, subject
to a maximum liability of R4500 per farm per owner irrespective
of
the number of land units of which the farm might be comprised. Upon
considering the objections received after the rating resolution
had
been advertised in terms of s 10G(7)(c) of the LGTA, the
council resolved on 29 July 2002 to confirm the sliding scale
determination. The confirmation was qualified, however, by a
resolution to undertake an interim valuation of the properties
concerned during the financial year and to adjust the rates payable
on the properties upwards or downwards as the case might be
in
relation to the outcome of the valuation exercise. After the
completion of the valuation exercise, the municipal council resolved
on 26 May 2003 to write off ‘the rates’ reflected
on the rates accounts to be printed on that day as due in
terms of
the aforementioned sliding scale and to levy a rate of 0,2474c/Rand
on the May accounts. It was also resolved that interest
would be
charged at the standard rate on all amounts in respect of the rural
levy, thus adjusted, which had not been paid by
25 June 2003.
On a reading of the papers as a whole it would appear that the
effect of the aforementioned resolutions was
that the sliding scale
size related ‘rates’ initially imposed were recovered
provisionally pending the determination
later in the financial year
of a value based rate. Adjustments were then effected which resulted
in the rate for the year for
which the affected property owners were
actually liable being determined on a rate in the Rand based on the
value of their properties.
Before turning to discuss the challenge by the respondents to the
taxation of their property by the municipality in the 2002/3
financial year, let me make it clear that I have found no merit in
the characterisation by the council in its papers of the impost
as a
levy imposed in terms of s 10G(7)(a)(ii) of the LGTA. My
reasons for this conclusion are essentially the same as those
set
out in para , above in the discussion of the flat rate impost
imposed by the municipal council in the preceding year.
The respondents challenged the legality of the council’s
impost in respect of the 2002/3 budget year on a number of grounds.
In view of the conclusion that I have reached it is only necessary
to treat with one of them;
viz
. the municipality’s
failure to publish a notice of its determination made on 29 July
2002 in the context of its reconsideration
of the size related
sliding scale impost, as required in terms of s 10G(7)(d)(ii)
of the LGTA.
In my view the challenge described in the preceding paragraph is
well made. The position was not assisted by the local authority’s
apparent failure also to publically give notice of the further
amending resolution adopted at its meeting on 26 May 2003.
It
is clear that in levying the rate in respect of the 2002/3 financial
year the council intended to act in terms of s 10G(7)
of LGTA.
The provisions of the subsection with regard to publication of the
general purport of the relevant rating resolutions
adopted under
that provision afford an essential element of effective lawmaking
under the subsection (see the discussion below
on promulgation
25
).
Material non-compliance therewith, as happened in the current case,
renders the rate imposed legally ineffective.
In the result the respondents’ challenge to the rural levy
impost in respect of the 2002/3 year is upheld.
26
2004/5 financial year
The respondents’ challenges to the validity of the imposition
of rates on rural property in the 2004/5 financial year are
premised
in part on the notice given by the municipality in terms of
s 10G(7)(c)(iv) of the LGTA having been given on a
date after
the rates in question had become payable. It was contended in this
regard (I quote from the summary handed in
of the respondents’
counsel’s oral address) that ‘
a procedure
[by]
which ratepayers are presented with a fait accompli, in that
rates increases are implemented and enforced before the start or
expiry or the 14-day period allowed for objections by
s 10G(7)(c)(iv) of the LGTA, is inconsistent with the scheme of
s 10G(7)
(which is to levy rates with prospective effect) and
the object of local government in s 152(1)(e) of the
Constitution (which
is to encourage the involvement of communities
and community organisations in matters of local government)
’.
In support of this argument, Mr
Breitenbach
SC, who
(together with Mr
Schreuder
) appeared for the
respondents, relied on the minority judgment of van Heerden JA
(Snyders AJA concurring) in
Kungwini Local Municipality v
Silver Lakes Home Owners Association and Another
[2008] ZASCA 83
;
2008 (6) SA 187
(SCA) at para 29-31, 33 and 36. In the minority judgment it was
held that the effect of publishing a notice, as required
in terms of
s 10G(7)(c) of the LGTA, after the date on which the rates were
to come into effect constituted the imposition
of rates with
retrospective effect, something not authorised by the legislation It
was held further that such a notice presented
residents of a
municipality with a
fait accompli
, in effect discouraging
their involvement in matters of local government. Ms Justice van
Heerden regarded such conduct by a municipality
as amounting to
taking a stance of ‘pay now and argue later’. (It is
evident from the language used in the relevant
part of the principal
answering affidavit deposed to on behalf of all the respondents that
the deponent drew heavily on the language
of the aforementioned
passages of the minority judgment in formulating their collateral
challenge to the rates imposed in the
year in question.) Mr Justice
Streicher, who wrote the majority judgment, found it unnecessary to
decide the point and left
it open.
27
The notice in question was published in the
Cape Times
newspaper on 7 July 2004 and, on the following day, in
Die
Burger
. It went as follows in the relevant part:
2004/2005
BERGRIVIER-MUNISIPALITEIT
Begroting: Vasstelling van eiendomsbelagtingtariewe
en fooie: 2004/2005-boekjaar
Kennisgewing geskied hiermee kragtens die bepalings van
Artikel 10G(7) van die 2de Wysigingswet op die Oorgangswet op
Plaaslike
Regering (Wet 97/1996) [
sic
] en Artikel 75A van die
Wet op Plaaslike Regering: Munisipale Stelselswet (Wet 32/2000) dat:
‘
n
Opsomming van die Begroting vir die 2004/2005-boekjaar gedurende
normale kantoorure ter insae lê by die ondergetekende.
‘
n
Eiendomsbelastingkoers van 1,35c/R op alle belasbare eiendomme gehef
word met korting aan sekere kategorieë
eiendomsbelastingsbetalers.
Eiendomsbelasting is verskuldig op 1
Julie 2004 en rentevry betaalbaar voor of op 30 September 2004 of in
twaalf gelyke maandelikse
paaiemente rentevry betaalbaar voor of op
die 25ste dag van elke maand.
‘
n
Spesiale belastingskoers van 0,311c/R op die waarde van grond alleen
gehef word in die dorpsgebied Port Owen.
Tariewe
en gelde vir die voorsiening van elektrisiteit, water, riolering,
sanitasie, vullisverwydering, vakansie-oorde en ander
diverse fooie
met betrekking tot die werksaamhede van Raad, gewysig is.
Bogenoemde eiendomsbelasting, tariewe en gelde in
werking tree op 1 Julie 2004 en vanaf die Julie 2004-lesing van
meters. Volledige
besonderhede lê by die ondergetekende ter
insae gedurende kantoorure en besware, indien enige, teen die tariewe
moet skriftelik
(met opgaaf van redes) by die ondergetekende ingedien
word voor of teen 12:00 op Vrydag 30 Junie 2004.
It is evident that the notice informed the reader that its content
pertained to the budget and determination of rates and tariffs
for
the 2004/2005 financial year. According to its tenor, it purported to
have been given in terms of s 10G(7) of the LGTA
(albeit
misdescribed
28
)
and s 75A of the Systems Act. It conveyed that a summary of the
budget was available for inspection at the office of the
municipal
manager at Church Street, Piketberg. It also furnished a postal
address for the municipal manager. The notice gave the
general rate
in the rand (1,35c/R) determined in respect of rateable property and
indicated that rebates applied in respect of
certain categories of
ratepayers. These categories were not specified in the notice, nor
was the extent of the applicable rebates.
The notice indicated that
the rates became due on 1 July 2004 and that they were payable,
interest free, on or before 30 September
2004, or in twelve
equal instalments, payable monthly on or before the 25
th
day of every month. The notice advised that full particulars of the
rates and tariffs were available for inspection at the office
of the
municipal manager and that reasoned objections thereto
29
,
if any, had to be submitted before noon on Friday, 30 July 2004.
In my judgment there is no merit in the contentions that the notice
effectively resulted in the retrospective imposition of rates,
or
that it presented ratepayers with a
fait accompli
. The notice
identifiably referred to s 10G(7) of the LGTA, and any reader
of the notice sufficiently interested in the determination
of rates
and taxes could ascertain by reference to the statutory provision
that the initial determination of rates and tariffs
under that
provision was provisional and subject to confirmation after
consideration of any objections or representations received
in
response to a notice in terms of s 10G(7)(c) of the Act.
Furthermore, it is well known that property rates are an annual
tax
imposed in each year.
30
That characteristic of the tax is indeed evident from the terms of
the notice. Its incidence is in any event confirmed by the
provisions of s 10G(3) of the LGTA - which required
municipalities to prepare annual budgets ahead of each financial
year,
including provision for rates - read together with s 10G(7),
which makes it clear that any property rate finally determined
in
terms of the provision cannot later be withdrawn or amended. In my
view the indication that the rates fell due on 1 July
2004
would thus be understood by the reasonable reader to connote no more
than that they were payable in respect of the municipality’s
financial year commencing on that date. It was in any event evident
from the notice that ratepayers were not required to make
payment
before 30 September, which allowed ample time for a
reconsideration and final determination by the council of the
rate
as contemplated in terms of s 10G(7)(d)(ii) in the event of any
representations or objections being received in response
to the
notice.
31
Read contextually, it was thus evident from the notice that the rate
advised therein had been provisionally determined in accordance
with
the applicable provision of the LGTA. Ratepayers who had elected
(presumably in the manner contemplated in s 90 of
the Municipal
Ordinance) to pay their rates in monthly instalments would
understand that the instalments might have to be adjusted
to take
account of any amendments to their rates liability consequent upon
the council’s consideration of any objections
or
representations received in response to the notice. The concept of
adjustments to rates dependant on determinations made after
the
incidence of the initial liability to pay them is nothing novel or
unusual. It has always been a feature in respect of the
liability of
property owners who have objected to the valuation of their
properties for rates purposes, or who are involved in
appeals in
respect of such matters.
32
The invitation to interested persons to submit objections by 30 July
2004 is wholly inconsistent with any conception of
the advertised
rate as constituting a
fait accompli
. The reasonable reader
of the notice would understand from its content that a consideration
by the council of any objections
received would follow after
30 July, and that the result of such consideration might entail
an adjustment of the provisionally
determined rates. Acknowledging
that it would not have been a determinant factor, it is nevertheless
notable that not one of
the respondents felt able to say that he or
she had not submitted any objection or representation because he or
she had been
brought under the impression that the rates and tariffs
in question had been finally determined.
The respondents further complained that there was no indication in
the notice that the relevant resolution of the council and
the other
relevant documents were available for inspection at the municipal
libraries. Notwithstanding the absence of any suggestion
that any of
the respondents is unable to write, they also complained that the
notice contained no indication that persons who
were unable to write
could approach a nominated municipal official for assistance in
submitting their representations or objections.
In this regard the
respondents contended that the notice fell fatally short of
compliance with ss 21(4) and 21A of the Systems
Act.
33
The provisions of s 21A(1)(a) of the Systems Act provide for
the display of documents at the municipality's head and satellite
offices and libraries. As already mentioned,
34
the provision was inserted into the statute by s 5 of Act 44 of
2003 with effect from 1 August 2004. Its requirements
thus did
not apply to the notice under consideration.
Although the language of s 21(4) of the Systems Act, which
states the requirement that a municipal invitation for comments
or
representations must state that a person who cannot write may obtain
assistance from a named staff member of the municipality,
is cast in
peremptory language, I do not consider that the provision was
intended to bear the import that a municipality’s
failure to
comply with it would mechanically invalidate the council’s
decision on the matter before it to which the notice
or invitation
in question pertained. As observed in an illuminating
discursus
by Combrink J in
Weenen Transitional Local Council v Van Dyk
2000 (3) SA 435
(N);
2000 (4) BCLR 445
(at 442B-444J (SA);
451E-454B BCLR), usefully supported by extensive reference to
South African and English authority, it
is clear that the
categorisation of legislative language as peremptory or permissive
(directory) is a secondary tool in achieving
the primary object of
statutory interpretation, which is to determine the legislature’s
intention; the categorisation is
a means to an end and not an end in
itself. With reference to a number of pertinent and well-known
judgments such as
Sutter v Scheepers
1932 AD 165
at 173-4;
Leibrandt v SA Railways
1946 AD 9
at 12-13;
Maharaj and
Others v Rampersad
1964 (4) SA 638 (A) at 645-6 and
Nkisimane and Others v Santam Insurance Co Ltd
1978 (2) SA
430 (A) at 433-4, the learned judge noted ‘
a
recognition on the part of the Judges that the validity of actions
in purported compliance of a statutory injunction cannot
be
determined by a mere label such as 'peremptory' or 'directory'
without proper regard being had to the intention of the legislator
derived from the enactment as a whole’
. This is
exemplified in the following statement by Trollip JA in
Nkisimane
supra, at 433
in fin
– 434:
Preliminarily I should say that statutory requirements
are often categorized as "peremptory" or "directory".
They are well-known, concise, and convenient labels to use for the
purpose of differentiating between the two categories. But the
earlier clear-cut distinction between them (the former requiring
exact compliance and the latter merely substantial compliance)
now
seems to have become somewhat blurred. Care must therefore be
exercised not to infer merely from the use of such labels what
degree
of compliance is necessary and what the consequences are of non or
defective compliance. These must ultimately depend upon
the proper
construction of the statutory provision in question, or, in other
words, upon the intention of the lawgiver as ascertained
from the
language, scope, and purpose of the enactment as a whole and the
statutory requirement in particular (see the remarks
of Van den
Heever J in
Lion Match Co Ltd v Wessels
1946 OPD 376
at 380
35
).
Cf. also
ABSA Insurance Brokers (Pty) Ltd v Luttig and Another
NNO
[1997] ZASCA 61
;
1997 (4) SA 229
(SCA) at 238-239;
Weenen Transitional Local
Council v Van Dyk
2000 (4) SA 653
(SCA) at para 13 and
Lupacchini NO and Another v Minister of Safety and Security
2010 (6) SA 457
(SCA) at para 8, where the
dicta
of
Corbett AJA in
Swart v Smuts
1971 (1) SA 819
(A) at 829C
– G are quoted, and other Appellate Division and SCA authority
is cited. See also LC Steyn
Die Uitleg van Wette
, 5de uitgawe,
p.196-201, especially the examples discussed at (5) and (7) at p.198.
As mentioned, the provisions of s 21(4) of the Systems Act are
directed at promoting the achievement by municipalities of
the
objects in s 152(1)(a) and (e) of the Constitution. They fall
within a statute which has expressly aspirational objects
and which
must be understood in its historical context as part of the
constitutional blueprint for a transformed system of local
governance in South Africa. The long title of and the preamble to
the Systems Act point to the developmental character of some
of the
statute’s provisions directed, amongst other matters, at the
establishment of ‘
a simple and enabling framework for the
core processes of planning, performance management, resource
mobilisation and organisational
change which underpin the notion of
developmental local government
’ and acknowledging the
‘
need to develop a strong system of local government
capable of exercising the functions and powers assigned to it
’.
The Act falls to be understood as a component part of the suite of
local government legislation mentioned earlier.
A holistic consideration of the applicable legislation makes it
clear that one of the important objects of the enactments is
to
provide a broad range of norms and standards to which municipalities
are required to conform. This is achieved by the stipulation
of a
substantial volume of prescriptive injunctions to municipalities in
three of the four main statutes, almost without exception
expressed
in peremptory language. Having regard to the well-known capacity
constraints that characterise local government in
this country - a
feature acknowledged in the injunctions to municipalities in the
statutes themselves to devote themselves to
the development and
improvement of their capacity and efficiency – it cannot have
been the intention of the national legislature
that a failure by a
municipality to comply with each and every one of these prescripts
should result in the failure of municipal
action. To interpret the
legislation indiscriminately to that effect would undoubtedly result
in the paralysis of local government
and be inimical to the
achievement of the evident objects of the legislation read broadly.
That is not to suggest, however, that
the failure by a municipality
to comply faithfully with each and every one of the legislative
prescripts which bind them would
go without consequences. The
performance of local government is subject to a wide range of
monitoring and support mechanisms
by other organs of state (such as
the Auditor-General) and by the provincial and national spheres of
government. A failure by
a municipality to comply adequately with
the provisions of s 21 or s 21A of the Systems Act could
thus give rise to
a directive from the MEC responsible for local
government in terms of s 139(1)(a) of the Constitution pointing
out the nature
of the municipality’s non-compliance with the
statute and giving instructions for the remediation of the
situation. Why
else the provision in s 10G(7)(e) that a copy of
the notice in terms of s 10G(7)(c) be sent to the MEC? (Similar
oversight
provisions exist in terms of the MFMA and the MPRA; see
e.g. s 27(5) of the MFMA and s 81 of the MPRA.)
Bearing in mind that the determination of the property rates to be
levied in every financial year constitutes a vital and integral
part
of the determination of a municipality’s annual budget, and
remembering that a municipality may not lawfully incur
any
expenditure other than in terms of an adopted budget, could it have
been the intention of Parliament that the determination
by a
municipal council of its annual rates would be nullified if it were
ascertained that a public notice issued in the course
of the
adoption process did not contain a statement as required in terms of
s 21(4) of the Systems Act? The result and its
knock-on
consequences have only to be postulated for the idea of such a
legislative intention to be dismissed as most unlikely.
There is,
moreover, no indication in the respondents’ papers that the
non-compliance with the statutory requirement had
any material
effect. I have therefore concluded that although the municipality’s
non-compliance with the provision is to
be deprecated, it did not
vitiate the process of the imposition of the property rates in the
2004/5 year.
It was also contended by the respondents that the imposition of
rates on their properties was invalid because the notice in terms
of
s 10G(7)(c)(iv) of the LGTA did not specify the actual rate
applicable. In this regard Mr
Breitenbach
called in aid
para 53 and 55 of the majority judgment in
Kungwini
, in
which Streicher JA held that the object of the notice required
in terms of s 10G(7)(c) was that ratepayers should
have
knowledge of the purport of the resolution; namely that they should
know what rates they would have to pay, and from when
those rates
would be payable. They should also know that they may object and
within what period they may object. The learned
judge of appeal
found that as the relevant notice contained two mutually
contradictory indications in respect of the calculation
of the rates
liability of property owners in the subject area it did not serve
the statutory object and was thus legally ineffectual.
On the other hand a unanimous bench of the SCA
(per Bosielo JA; Harms DP, and Heher, Shongwe and Tshiqi JJA
concurring)
subsequently held in
Nokeng
Tsa Taemane Local Municipality v Dinokeng Property Owners
Association and Others
[2011]
2 All SA 46
(SCA),
at para 22,
that ‘
It is clear that the
section does not require details of the resolution and assessment to
be published. Contrary to the submission
by the
[ratepayers’]
association that the notice must set
out, amongst others, the rates, areas affected, rebates applicable
and the real and true
effect of the increases of the rates, I hold
the view that this does not accord with the ordinary grammatical
meaning of the
phrase ‘general purport.
’
Bosielo JA proceeded, at para 24 of
Nokeng
,
to explain ‘
The adjective
“general” qualifies the noun “purport.” The
conjunction was not accidental but deliberately
intended to make
clear that specific details are not required
’.
Inasmuch as these passages in the two judgments might, on their
face, look to be in conflict with each other on the point, it
is
necessary to consider their import closely to ascertain whether this
is indeed the case. The court in
Nokeng
was certainly
conscious of the earlier judgment in
Kungwini
, as apparent
from the reference thereto at para 29 of
Nokeng
.
On my reading of the majority judgment in
Kungwini
, the
essential basis of Streicher JA’s finding against the
compliance of the notice in issue in that case with the
requirements
of the statute was the potentially misleading effect of its
contradictory content. The contradictions, and their
potential
effect, were described in the following terms at para 46-47 of
the judgment:
[46] In the present case the Municipality, on 29 June
2004, adopted a resolution, which insofar as it relates to property
rates,
reads as follows:
6. That the assessment rate tariff of R0,054 per Rand
value for properties in the Bronberg area be approved.
. . .
8. That the following tariff increase for the
2004/2005 Financial Year be approved:
. . .
(d) Assessment Rate Bronberg 145,45%.
[47] The respondents, in their founding papers and
before us, contended that the assessment rate tariff had been
approved in an
amount of R0,054 per rand value of the properties but
that the resolution reflects an arithmetical error in that the
increase in
fact amounted to an increase of 170% and not 145,45%.
That interpretation is clearly based on personal knowledge as to how
the
increase in rates was determined, as the error, if an error was
made, may have been made in the calculation of the rate per rand
value or there may not have been an error at all. Without such
knowledge or the assistance of other circumstantial evidence in
interpreting the resolution, para 6 of the resolution is contradicted
by para 8 of the resolution. However, as is stated in the
main
judgment, the respondents attacked the validity of the resolution on
other bases which, for reasons that I agree with, are
rejected in the
main judgment.
The contradictions in the resolution had been replicated in the
notice published by the municipality in terms of s 10G(7)(c)
of
the LGTA. The importance of their effect on the conclusion reached by
Streicher JA is particularly evident from the content
of para 55
of the judgment in which the learned judge of appeal stated:
The court
a quo
also
found that those invited to object may 'have been influenced by the
percentage increase rather than the increase in rands in
deciding
whether to lodge objections'. I agree. As stated above, one of the
objects of para (c) is that ratepayers should know
what rates they
would have to pay. The notice could not achieve that object in that,
to the general body of ratepayers, the notice
would have conveyed two
contradictory approvals for the Bronberg area, namely an approval of
a rate of R0,054 per rand value and
also an approval of a rate of
R0,049 (a 146,45% increase)
36
per rand value. Not having achieved what is probably the
most important object of para (c) the notice did not comply with the
provisions
of para (c) and was correctly held by the court a quo to
have been invalid.
The fact that it was the contradictory indications in the notice as
to the property rates applicable in the Bronberg area that
was the
feature of the notice that made it non-compliant with the legislation
in the judgment of the majority in
Kungwini
is underscored
when regard is had to portion of the notice set out in para 9 of
the minority judgment, from which it appears
that apart from the
areas of Ekandustria and Bronberg the applicable rate was expressly
set out in the notice. The determinant
feature in the majority
judgment therefore was not the failure of the municipality to
expressly refer to the rate in the notice,
but rather the effect of
its having given contradictory indications of the special rate
applicable in respect of the area in which
the respondent’s
members’ properties were situated.
The notice in
Nokeng
is set out in para 18 of the
judgment. It contained no reference to a rating resolution at all.
It advised only that, at
a meeting in May 2003, the council
concerned had ‘
resolved to adopt the Operating and Capital
budget for the 2003/2004 financial year, and that the tariffs
determined in the budget
will be implemented with effect from 1 July
2003
’. The notice further advised, in general terms, of
the places at which and during which hours the relevant resolution
could
be inspected. It concluded by stating that any persons who
desired to object to the resolution should do so in writing within
14 days. In my view there is indeed a relevant conflict between the
two judgments in respect of the point in issue in the current
matter. Mr
Breitenbach
submitted, albeit with diffidence,
that the conflicting matter in the
Nokeng
judgment was
obiter
because of the finding made at para 15 of the judgment that the
inordinate delay by the applicant in instituting the proceedings
to
challenge the rates imposts in that case impelled the conclusion
that ‘
irrespective of the merits it would be impracticable
to reverse the entire process’
. The court nevertheless
dealt with the merits in
Nokeng
and would appear to have
reversed the decision of the court
a quo
, which had upheld
the challenge to the rates, on the basis that the court of first
instance had been incorrect on the merits.
I am thus unable to find
that the matter in
Nokeng
which is in conflict with the part
of the majority judgment in
Kungwini
discussed above was
obiter
.
On the approach taken in
Nokeng
there can be no doubt that
the notice published by the municipality was adequate for the
purpose of compliance with s 10G(7)
of the LGTA. Assuming that
it is open to me in the context of the identified conflict between
the two judgments of the SCA to
determine which to follow (cf.
R v
Sillas
1959 (4) SA 305
(A);
37
Makambi v MEC for Education, Eastern Cape
[2008] ZASCA 61
;
2008 (5) SA 449
(SCA);
[2008] 4 All SA 57
38
and
Camps Bay Ratepayers and Residents Association and Another v
Harrison and Another
2011 (2) BCLR 121
(CC)
39
),
I do not think that the facts require me to do so in respect of the
notice currently in issue.
Having regard to the content of the notice currently in issue, the
majority judgment in
Kungwini
does not, in my view, stand in
the way of arriving at the same conclusion as I would have done
applying
Nokeng
. The notice did inform the reader of the
general rate that had been determined upon in the council’s
resolution. It also
informed the reader that certain rebates
applied, with the effect that owners of certain categories of
property would pay less
than the general rate. Thus, unlike the case
in the notice given in
Nokeng
, ratepayers were informed of
the general purport of the rates resolution itself. If the
requirement were that the notice set
out fully not only the general
rate, but also particulars of each every rebate allowed thereon, it
would not be ‘general
purport’ of the resolution that
would have to be set out in the notice, but rather the entire body
of the rates resolution.
Nothing in the judgment in
Kungwini
held that the entire rates table had to be set out. There was no
discussion at all in
Kungwini
as to the meaning and effect of
the term ‘
general purport
’ (
Afr
. ‘algemene
strekking’). There would be no sense in the employment of the
term if the legislative intention was that
the complete resolution
had to be published.
In my view, consistently with the approach of Streicher JA in
Kungwini,
the object of the notice is to alert ratepayers in
general terms of the nature of the property rates that have been
resolved upon
by the council to apply in the forthcoming financial
year, and to give them the opportunity to submit any objections. I
consider
that a notice that informs the reader of the generally
applicable rate, and that the only exceptions thereto will be by way
of
rebates, is sufficient to alert any person who might be
interested in a submitting an objection or representation. The
notice
furthermore informs any party who might be interested of the
place at which full particulars of the resolution may be inspected.
I am thus satisfied that the notice sufficiently achieved the
objects of s 10G(7) of the LGTA.
The respondents’ collateral challenges to the validity of the
municipality’s rating resolution in respect of the
2004/5
financial year can therefore not be sustained.
2005/6 financial year
In respect of the 2005/6 financial year, the municipality, as
required in terms of the relevant provisions of the MFMA, caused
a
draft budget to be tabled before the municipal council. As discussed
above, with reference to s 17(3)(a)(ii) of the MFMA,
it may be
assumed, in the absence of evidence to the contrary, that the
material tabled together with the draft budget would
have included a
draft rates resolution.
On 5 May 2005, in purported compliance with the requirements of
s 22 of the MFMA, the municipality placed the following
notice
in a newspaper circulated in its area of jurisdiction:
BERGRIVIER MUNICIPALITY
NOTICE
BUDGET, INTEGRATED DEVELOPMENT PLANNING AND
PERFORMANCE MANAGEMENT BERGRIVIER MUNICIPAL AREA:
PERIOD 2005/2006
In terms of the provisions of section 22 of the
Municipal Finance Management Act (Act 56, 2003) the draft budget in
terms of the
abovementioned period, as well as the draft reviewed
integrated development plan (IDP), compiled in terms of section 34 of
the
Municipal Systems Act (Act 32, 2000) are open for inspection.
The performance indicators and goals form part of the
abovementioned process, thus a complete performance management system
in terms
of section 44 of the Municipal Systems Act (Act 32,2000) is
open for inspection.
The complete documents may be viewed at all libraries
within the area of jurisdiction of Bergrivier Municipality.
The draft documents will be discussed with the public
and the details are as follows:
TOWN
DATE
TIME
VENUE
Porterville 23 May 2005 19:00 Monte Bertha Civic Hall
Wittewater &
Goedverwacht 20 May 2005 19:00 Church Hall, Goedverwacht
Piketberg 19 May 2005 19:00 Allan Boesak, Civic Hall
Velddrift 24 May 2005 19:00 Civic Hall Noordhoek
Aurora 25 May 2005 19:00 Civic Hall Aurora
Redelinghuys 26 May 2005 19:00 Civic Hall Redelinghuys
Eendekuil 27 May 2005 19:00 Civic Hall Eendekuil
Written objections or comments, if any, should be lodged
in writing with the Municipal Manager, 13 Church Street, Piketberg
(PO
Box 60, Piketberg, 7320) or fax (022) 913 1380 by no later than
12:00
on
27 May 2005.
AJ BREDENHANN
Municipal Manager
PO Box 60
Piketberg
7320
After a series of public meetings between representatives of the
municipal government and the local community were held, as advertised
in the notice, the municipal council adopted the budget for the
2005/6 financial year at a meeting of the municipal council held
on
31 May 2005. It was apparent from the mayor’s speech to
the council in support of the motion that a number of written
objections to the draft budget had been received, including 22
complaints about the proposed increase in the water tariff. The
mayor
also noted that there had been a number orally made complaints that
owners of properties used for agricultural purposes within
the urban
areas would not enjoy the 76% rebate proposed in respect of rural
agricultural properties. It is apparent from the minutes
of the
council meeting that after some discussion the draft budget was
adopted with some amendments, which, amongst other matters,
directly
addressed the aforementioned objections and complaints. This affords
a measure of evidence indicating that an effective
public
participation process had preceded the adoption of the budget.
It is common ground between the parties that s 10G(7) of the
LGTA was still on the statute book in May 2005. It is also
not in
dispute (i) that the adoption of the rates resolution in
respect of the 2005/6 financial year occurred not in terms
of the
dichotomous procedure provided in terms of s 10G(7)(a) and (d)
of the LGTA, but instead in terms of the integrated
process provided
in terms of ss 16-24 of the MFMA, the provisions of which were
also in operation in May 2005 and (ii) that
no resolution as
contemplated by s 10G(7)(a)(i) had been adopted, and that
consequently, no notice within the meaning of
s 10G(7)(c) had
been given by the municipality.
I remarked earlier in this judgment that I find it impossible to
sensibly reconcile certain parts of s 10G(7) of the LGTA
with
the contemporaneously applicable provisions of ss 16-24 of the
MFMA. In my view it would only have been possible for
a municipality
which continued to avail of the also contemporaneously operating
provisions of part 2 of chap 8 of the Municipal
Ordinance to
coherently implement all of the provisions of s 10G(7) of the
LGTA in respect of the adoption of a rates resolution
for the 2005/6
year.
40
It seems to me to follow that a municipality, such as the applicant,
which elected to utilise the provisions of chap 4 of
the MFMA
for the purposes of the preparation and adoption of its budget for
the 2005/6 financial year, was not required to comply
with s 10G(7)
in respect of the imposition of rates. It was required, instead, to
follow only the procedures for that purpose
entailed in complying
with chap 4. The complaint that the notice, dated 23 June 2005,
published by the local authority in
the press in which the rates and
tariffs adopted as part of the budget were set out did not comply
with the requirement in terms
of s 10G(7) of the LGTA that the
adopted rates be published for comment and objection is therefore
misplaced. The procedure
followed by the municipality in terms of
the MFMA offered the public the opportunity to comment and object to
the draft rates
resolution before its adoption. I reject the
argument on behalf of the respondents that the municipality was
required to publish
a draft rates resolution in terms of the MFMA
for comment and objection before its adoption and then, after its
adoption as part
of the annual budget as required in terms of the
MFMA, thereafter advertise the adopted resolution in terms of
s 10G(7)(c)
of the LGTA for further consideration and objection
by interested members of the public. The notion that a rates
resolution adopted
in terms of the MFMA process could be revisited
after its adoption is entirely inconsistent with the provisions of
the MFMA which
envisage the final adoption of a budget before the
commencement of the relevant financial year. The provisional nature
of the
initial adoption of a rating resolution under s 10G(7)
is fundamentally inconsistent with the MFMA’s scheme. The MFMA
makes the adoption of a rating resolution an integral function of
the adoption of the annual budget. The MFMA does not in any
manner
contemplate a provisional adoption by the municipal council of an
annual budget.
In my judgment, save that there was non-compliance with the
requirements of s 21(4) of the Systems Act, the notice
published
by the municipality on 5 May 2005 was sufficient to
achieve substantial compliance by the municipality with the
provisions
of s 22 of the MFMA. The effect of non-compliance
with s 21(4) of the Systems Act is an issue already dealt with
above.
41
The respondents’ collateral challenges to the validity of the
municipality’s rating resolution in respect of the
2005/6
financial year are therefore dismissed.
2006/7 financial year
In respect of the 2006/7 financial year, the municipality again
adopted a rating resolution in the context of utilising the
procedures under chap 4 of the MFMA. A notice inviting
attention to the draft budget was published in the local press on
13 April 2006. The notice indicated that full particulars
of the draft budget were available at the offices of the
municipal
manager and at libraries throughout the municipality. Objections and
representations were invited from the public,
such to be received by
the municipal manager on or before 15 May 2006. On this
occasion the notice included a paragraph
substantially compliant
with the provisions of s 21(4) of the Systems Act for the
benefit of persons who might wish to submit
representations, but who
were unable to write. A number of public meetings to be convened by
the municipality to discuss the
draft budget and related matters at
various venues in the municipal area were also advertised on
20 April. A single objection
to the proposed rates was
received. It was submitted by the Bergrivier Distrik
Landbouvereniging. The budget, including a resolution
imposing
property rates, was approved at a council meeting on 30 May
2006. It included an imposition of a general property
rate of
1,61c/Rand, with a 76% rebate for ‘rural properties’.
The adoption of the budget, including a reference to
the general
property rate, was advertised by the municipality on 8 June
2006. The advertisement, which according to its
tenor purported to
have been given in terms of s 75A(3) of the Systems Act,
indicated that details of the approved budget
was available for
inspection at the municipal offices during office hours.
The respondents raised a number of collateral challenges to the
imposition of the rates on rural property in respect of the 2006/7
year. I find it necessary to consider only one of them,
viz
.
that the resolution levying rates was not promulgated by publication
of the resolution in the
Provincial Gazette
as required in
terms of s 14(2) of the MPRA. Section 14 of the MPRA provides:
14
Promulgation of resolutions levying rates
(1) A rate is levied by a municipality by resolution
passed by the municipal council with a supporting vote of a majority
of its
members.
(2) A resolution levying rates in a municipality must be
promulgated by publishing the resolution in the
Provincial
Gazette
.
(3) Whenever a municipality passes a resolution in terms
of subsection (1), the municipal manager must, without delay-
(a) conspicuously display the resolution for a period of
at least 30 days-
(i) at the municipality's head and satellite offices and
libraries; and
(ii) if the municipality has an official website or a
website available to it as envisaged in section 21B of the Municipal
Systems
Act, on that website; and
(b) advertise in the media a notice stating that-
(i) a resolution levying a rate on property has been
passed by the council; and
(ii) the resolution is available at the municipality's
head and satellite offices and libraries for public inspection during
office
hours and, if the municipality has an official website or a
website available to it, that the resolution is also available on
that
website.
The municipality sought to explain its failure to promulgate the
rates resolution by publishing it in the
Provincial Gazette
by
averring that it was still availing of the provisions of the LGTA,
which it contended it was permitted to do under the transitional
provisions of the MPRA. This contention was ill-founded on both legs.
Section 10G of the LGTA did not apply in respect of the 2006/7
budget
year, having been repealed in terms of s 179 of the MFMA with
effect from the commencement of the MPRA. Furthermore,
as discussed
earlier, the transitional provisions of s 88(1) of the MPRA did
not extend the life of s 10G(7) of the LGTA
as contended on
behalf of the municipality.
In
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
42
the Constitutional Court held that when a legislature, whether
national, provincial or local, exercises the power to raise taxes
or
rates, or determines appropriations to be made out of public funds,
it is exercising a power that under our Constitution is
a power
peculiar to elected legislative bodies. It is a power that is
exercised by democratically elected representatives after
due
deliberation. Although the statement was made in the context of
characterising the imposition of a levy by a local authority
as
legislative, and not administrative, action, it nevertheless
highlights the character of a resolution by a municipal council
to
impose rates as legislation intended to be generally binding as
such.
The provisions of s 14(2) of the MPRA have the effect of
bringing the requirements of the promulgation of a municipality’s
legislated rating imposts into line with those which apply in
respect of a municipality’s bylaws in general. In terms of
s 13(a) of the Systems Act, a by-law passed by a municipal
council must be published promptly in the
Provincial Gazette
,
and, when feasible, also in a local newspaper or in any other
practical way to bring the contents of the by-law to the attention
of the local community. This requirement is consistent with the
principle of the rule of law which requires the law to be certain,
and accessible to those on whom it is intended to be binding.
As stated by Innes CJ in
Ismail Amod v Pietersburg Municipality
1904 TS 323
‘
By the Roman-Dutch law, as indeed by any
civilised system of jurisprudence, a law before it can take effect
requires to be promulgated.
The expression of the will of the
legislative authority does not acquire the force of law unless and
until it has been promulgated
in due form for the information of
those whom it is to effect.
’ In
Van Rooy v Law Society
(OFS) and Another
1953 (3) SA 580
(O), Horwitz J rejected
an argument that s 16 of Act 5 of 1910 (the Interpretation Act)
which, in a manner equivalent
to s 16 of the current
Interpretation Act 33 of 1957, required (‘subject to the
provisions relative to the force and
effect thereof in any law’)
a rule or regulation made by a public body under authority of
statute to be published in the
Gazette
was merely directory
in character, saying (at pp. 584-5) ‘
I deem it proper
to bear in mind on this aspect of the case that sec. 16 of the
Interpretation Act has been added
adjuvandi causa
the common law. For, by the common law, regulations or by-laws
having the effect of law must be duly promulgated. (
R v
Tatton
,
1915 CPD 390
;
R v Koenig
,
1917 CPD 225
;
Ismail Amod v Pietersburg Municipality
,
1904 T.S. 323
;
R v Schaper
,
1945 AD 716
at p.
720;
Byers v Chinn and Another
,
1928 AD 322
at
p. 328.)….. It would seem, therefore, that unless the
authorising statute dispenses, expressly or by necessary
implication,
with the requirement of promulgation, or authorises a
mode of notification other than that laid down in the section, the
common
law requires, and sec. 16 enjoins, promulgation in order to
vest the regulation, by-law, etc., with legal force and effect.
’
It seems to me that the provisions of s 14(2) of the MPRA were
enacted acknowledging the enhanced executive and legislative
status
of municipal councils under the new constitutional order. Whereas a
less formal approach might have historically characterised
the
approach to publication of municipal bylaws under the old order,
43
its continuation finds no justification under the current
constitutional framework.
44
In my view the provisions of s 14(2) of the MPRA are
peremptory. The ordinary meaning of the word ‘
promulgate
’
in the context in which it is employed is to ‘
put (a law or
decree) into effect by official proclamation
’.
45
Whereas it would appear from the provisions of ss 13 and 14 of
the MPRA that a rate becomes payable from the beginning of
the
financial year, or, if the budget has not been approved by then,
from the later date on which it is so approved, an amount
payable in
terms of a rating resolution would, however, not be exigible at the
instance of the municipality until and unless
the resolution was
duly promulgated.
46
Similarly, by reason of the requirement that the resolution be
formally promulgated, displaying copies of the resolution and
advertising it as required by s 14(3) of the MPRA would, by
themselves, not be sufficient to permit the municipality to
enforce
payment under the resolution.
47
The provision that the effectiveness of promulgation of a law be
assisted by additional publicity such as the display of notices
in
prominently visible locations, as required by s 14(3), is not
unprecedented - the regulations in issue in
R v Busa en andere
1959 (3) SA 385
(A) afford an example.
48
In the circumstances of the municipality’s failure to
promulgate the rates resolution by publication in the
Provincial
Gazette
the respondents’ collateral challenge to the
imposition of rates by the applicant municipality in respect of the
2006/7
budget year is upheld.
2007/8 and 2008/9 financial years
The rating resolutions in respect of these financial years were also
not promulgated in the manner prescribed by s 14(2)
of the
MPRA. The respondents’ collateral challenges to the rates
imposed in respect of those years are therefore also sustained.
Consequent orders sounding in money
As a consequence of the aforestated dismissal of some of their
collateral challenges, and their concession of the validity of
the
imposts in the 2003/4 financial year, the respondents are liable to
make payment of the rates levied on their properties
in the 2003/4,
2004/5 and 2005/6 financial years. The amounts involved, although
initially in dispute in some cases, have been
agreed between the
parties. An order will be made directing the respondent ratepayers
to make payment to the applicant municipality
forthwith of the
amounts set out against each of their names
49
and corresponding municipal account numbers on the annexure to this
judgment. Lest any of the amounts set out in the annexure
be
incorrect in any respect - which is quite conceivable having regard
to the arithmetical exercises entailed - the parties are
given leave
to apply to me in chambers, if necessary, within 10 days of the date
of the delivery of this judgment for the correction
thereof.
50
Costs
As mentioned in the introduction to this judgment, the parties
agreed that this court should determine not only the costs in
these
proceedings, but also those in respect of the matters pending
between them in the magistrate’s court, which have,
in effect,
been decided by these proceedings. While I am, in principle,
somewhat diffident about the propriety of making costs
orders in
respect of matters before another court, save where those might have
been reserved by such court to be determined elsewhere,
the
circumstances show that acceding to the parties’ request would
be eminently practicable in achieving finality to the
litigation at
a saving of unnecessary further costs. The proceedings in the
magistrate’s court are simply actions for payment
of monies
allegedly due. It is not suggested that there is anything about
them, apart from the incidence of the constitutional
issues raised
by the defendants’ collateral challenge defences, that would
justify a departure from the ordinary principle
that costs follow
the result.
As to the aforementioned incidence of constitutional issues, Mr
Breitenbach
submitted that because of the constitutional
character of the litigation the respondents should not be held
liable in costs even
if they were unsuccessful. In this respect he
relied on the approach to costs in constitutional litigation
summarised in
Biowatch Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014.
The principle that a private party who litigates against the state
to protect or advance a constitutional right should, in general,
not
be held liable for the state’s costs if unsuccessful does not
seem to me to apply here. The respondents did not litigate
to
advance or protect their perceived rights. They raised a plethora of
constitutional issues, some good and some bad, virtually
all of them
dependent on statutory technicality, to resist the municipality’s
claims for payment of municipal taxes. Had
these points been
conscientiously taken in advance by the respondents, and proactively
by means of direct challenge, so that
the validity of the rates
imposts could have been determined in the years to which they
pertained and any attendant illegality
corrected, if necessary (as
happened in the earlier litigation in the
Howick District
Landowners’ Association
cases, for example), they may have
assisted in the improvement of local governance in the applicant
municipality to the benefit
of all, and there would have been merit
in the approach contended for by their counsel. However, in the
context of the true character
of the litigation, both in this forum
and in the lower court, that is enforcement proceedings for payment
of rates, I consider
that there is no reason why costs should not
follow the result. A further factor that weighs in the balance in
regard to costs
is the need to avoid encouraging a too technical or
indiscriminate a reliance by municipal taxpayers on any number of
the myriad
prescriptions in the legislative framework on local
government to defend claims made against them by municipalities for
payment
of outstanding rates. As observed in
Nokeng
supra, at
para 32, municipalities should, as far as reasonably possible,
be able to devote their resources in an efficient
and cost effective
manner for the benefit of their communities and in promoting social
and economic development rather than on
litigation to recover rates
and tariff charges. It is notable that, as far as can be discerned
from the papers, the respondents
did not in any correspondence with
the municipality raise extracurially any of the numerous issues of
statutory non-compliance
that were eventually relied upon when they
were sued for payment. The objections to the payment of rates raised
extracurially
by the respondents went to the issue of their being
rendered liable for municipal rates when, so they contended, they
did not
receive municipal services. That issue, which seems to have
fundamentally underpinned the respondents’ refusal to pay
rates,
is one of policy, and not one of law.
It will be directed that the costs of the recovery proceedings in
the magistrates’ courts should follow the result. Those
respondents who are found liable for any part of the municipality’s
claim must pay the municipality’s costs of suit
on the
applicable magistrate’s court scale of tariffs. In matters in
which the municipality’s claims in the magistrates’
courts are limited to amounts allegedly due in respect of rates
imposts that have been found to be invalid or ineffectual, the
municipality must pay the defendant’s costs on the applicable
magistrate’s court scale of tariffs.
With regard to the costs of proceedings in this court, I think it is
appropriate to approach the question treating the respondents
indiscriminately as a body as they all stood together on all issues
as united front. Notwithstanding my treatment of the proceedings
as
monetary enforcement proceedings, in which the applicant has
achieved a substantial measure of success, the costs order to
be
made should reflect that the respondents’ contention that the
rates imposts were invalid was upheld in respect of five
of the
eight financial years in issue. In the circumstances I consider that
it would be just, fair and equitable for the respondents,
jointly
and severally, to be held liable for 40% of the applicants’
High Court costs of suit, such costs to include the
costs of two
counsel.
Orders
The respondents’ collateral challenges to the validity of the
imposition of rural levies by the applicant municipality
in the
2001/2 and 2002/3 financial years and to the imposition by the
municipality of rates on rural property in the 2006/7,
2007/8 and
2008/9 financial years are upheld.
The respondents’ collateral challenges to the validity of the
imposition by the applicant municipality of rates on rural
property
in the 2003/4, 2004/5 and 2005/6 financial years are dismissed.
The respondents are directed to make payment to the applicant
municipality forthwith of the amounts set out against each of their
names
51
and corresponding municipal account numbers on the annexure to this
judgment, together with interest thereon
a tempore morae
as
provided in terms of the applicant’s credit control policy.
The parties are given leave to apply to the presiding judge in
chambers, if necessary, within 10 days of the date of the delivery
of this judgment for the clerical correction of any amount set out
in the annexure to this judgment.
The costs of the recovery proceedings instituted by the applicant
against the individual respondents in the magistrates’
courts
shall follow on the financial consequences of the order made in
terms of paragraph 3, above, in the manner explained in
paragraph of
the judgment, and shall be taxable on the applicable magistrates’
court scale of tariffs.
The respondents are ordered, jointly and severally, the one paying
the others being absolved, to pay 40% of the applicant’s
costs
of suit in the High Court proceedings as between party and party,
such costs to include the costs of two counsel.
A.G. BINNS-WARD
Judge of the High Court
Matter heard:
1O and 11 August 2011
Judgment delivered:
25 August 2011
Appearances:
For the applicant:
J.C. Heunis SC and E.F. van Huyssteen
Instructed by:
De Klerk & Van Gend,
Cape Town
For the respondents
A.M. Breitenbach SC and H.C Shreuder
Instructed by:
Millers Inc,
Cape Town
; Malan Lourens
Lemmer Viljoen Inc,
Strand
ANNEXURE TO JUDGMENT
RESPONDENTS
AMOUNT
MATJIESFONTEIN TRUST
R7 707,72
Mun Account no: 62889
Piketberg Case No.: 343/09
MATJIESFONTEIN TRUST
R5 308,78
Mun Account no: 68487
Piketberg Case No.: 624/09
MATJIESFONTEIN TRUST
R4 252,98
Mun Account No: 62455
Piketberg Case No.: 673/09
KATRIVIER FAMILIETRUST
R4 863,59
Mun Account No: 56116/6072080
Piketberg Case No.: 517/09
KATRIVIER FAMILIETRUST
R5 284,85
Mun Account no: 55987
Piketberg Case No.: 502/09
KATRIVIER FAMILIETRUST
R19 090,56
Mun Account no: 55955
Piketberg Case No.: 516/09
KATRIVIER FAMILIETRUST
R7 036,89
Mun Account No: 56243
Piketberg Case No.: 501/09
KATRIVIER FAMILIETRUST
R13 384,45
Mun Account no: 55000
Piketberg Case No.: 500/09
OMATAKO FAMILIETRUST
R8 922,97
Mun Account No: 62991
Piketberg Case No.: 361/09
RIVIERA TRUST
R5 794,53
Mun Account no: 54768
Piketberg Case No.: 311/09
VRUGBAAR TRUST
R12 395,47
Mun Account No: 63949
Piketberg Case No.: 567/09
VRUGBAAR TRUST
R18 573,56
Mun Account No: 63931
Piketberg Case No.: 568/09
KEURBOS TRUST
R4 605,09
Mun Account No: 57293
Piketberg Case No.: 629/09
WINDHEUWEL TRUST
R2 769,04
Mun Account No: 54736
Piketberg Case No.: 628/09
KOTZE FAMILIETRUST
R3 408,34
Mun Account No: 54334
Piketberg Case No.: 599/09
VERCUIEL FAMILIETRUST
Mun Account No: 63890
Piketberg Case No.: 625/09
PAPKUILSFONTEIN BOERDERY TRUST
R3 943,73
Mun Account No: 54006
Piketberg Case No.: 627/09
DIE PONT TRUST
R2 980,85
Mun Account No: 63265
Piketberg Case No.: 766/09
DIE PONT TRUST
R7 955,99
Mun Account No: 63268
Piketberg Case No.: 771/09
ROSSOUW TRUST
R9 009,13
Mun Account No: 55289
Piketberg Case No.: 786/09
ROSSOUW TRUST
R5 236,98
Mun Account No: 55017
Piketberg Case No.: 764/09
DASKLIP FAMILIETRUST
Mun Account No: 60850
Porterville Case No.: 272/09
DAC SMIT FAMILIE TRUST
R7 323,98
Mun Account No: 56532
Piketberg Case No.: 762/09
ST HELENAFONTEIN FAMILIETRUST
R9 516,57
Mun Account No: 53806
Piketberg Case No.: 523/2009
ST HELENAFONTEIN FAMILIETRUST
Mun Account No: 6029000
Piketberg Case No.: 456/07
KELLERMAN FAMILIE TRUST
R4 818,62
Mun Account No: 62575
Geen Case No.mmer
WILMAR FAMILIETRUST
R10 301,62
Mun Account no: 55296
Geen Case No.mmer
WILMAR FAMILIETRUST
R8 720,86
Mun Account No: 5553
Geen Case No.mmer
GIDEON LIEBENBERG FAMILIETRUST
R9 637,18
Mun Account No: 61606
Geen Case No.mmer
LIEBENBERG BOERDERY TRUST
Mun Account No: 62462
Geen Case No.mmer
PORSELEINKLOOF FAMILIE TRUST
R7 310,50
Mun Account No: 60627
Geen Case No.mmer
PORSELEINKLOOF FAMILIE TRUST
?
Mun Account No: 60401
Geen Case No.mmer
PORSELEINKLOOF FAMILIE TRUST
R7 027,32
Mun Account No: 60708
Geen Case No.mmer
SONKWASKLOOF BOERDERY
R4 988,05
Mun Account No: 64043
(Frans vd Merwe Coetzee)
Piketberg Case No.: 522/09
H A VAN NIEKERK AND SONS (PTY) LTD
Mun Account no: 56194
Hendrik Andries van Niekerk
Piketberg Case No.: 560/2009
KROMRIVIER BOERDERY CC
R4 031,46
Mun Account No: 55112
(Hugo De Waal)
Piketberg Case No.: 472/09
MICHIEL ADRIAAN JACOBUS VISSER
R8 671,31
Mun Account No: 61204
Piketberg Case No.: 358/09
ABRAHAM ISAAC COETZEE
R2 336,06
Mun Account No: 58297
Piketberg Case No.: 476/09
ABRAHAM ISAAC COETZEE
R1 309,96
Mun Account No: 58339
Piketberg Case No.: 503/09
JOHANNES COETZEE
R651,03
Mun Account No: 56581
Piketberg Case No.: 592/09
JOHANNES COETZEE
R7 391,13
Mun Account No: 56444
Piketberg Case No.: 730/09
JOHANNES COETZEE
R5 399,74
Mun Account No: 54775
Piketberg Case No.: 595/09
HERMANUS BOONZAAIER ROSSOUW
R7 764,51
Mun Account No: 55264
Piketberg Saak No: 601/09
HERMANUS BOONZAAIER ROSSOUW
R718,05
Mun Account No: 55056
Piketberg Case No.: 515/09
HERMANUS BOONZAAIER ROSSOUW
R6 596,49
Mun Account No. 55063
Piketberg Case No.: 754/09
STEPHANUS PAULUS GEORGE MOUTON
R5 179,53
Mun Account No: 55419
Piketberg Case No.: 618/09
STEPHANUS PAULUS GEORGE MOUTON
Mun Account No: 55458
Piketberg Case No.: 511/09
ALEXANDER FLORIS SMIT
R5 013,96
Mun Account No: 56204
Piketberg Saak No: 729/09
HENRIK FREDERIK PETRUS BRAND
R2 661,57
Mun Account No: 57141
Piketberg Case No.: 514/09
HENDRIK FREDERIK PETRUS BRAND
R3 427,49
Mun Account No: 53956
Piketberg Saak no: 510/09
HENDRIK FREDERIK PETRUS BRAND
R3 058,64
Mun Account No; 57215
Piketberg Case No.: 473/09
WILLEM JOHANNES VAN ZYL BRAND
R2 776,46
Mun Account No: 57247
Piketberg Saak No: 521/09
FREDERIK BINNEMAN DE WAAL
R4 451,84
Mun Account No: 54976
Piketberg Case No.: 504/09
FREDERIK BINNEMAN DE WAAL
R1 686,00
Mun Account No: 55144
Piketberg Case No.: 534/09
FREDERIK BINNEMAN DE WAAL
R5 265,70
Mun Account No: 55024
Piketberg Case No.: 534/09
DANIëL MARTHINUS TREDOUX
R1 153,17
Mun Account no: 58353
Piketberg Case No.: 474/09
DANIëL MARTHINUS TREDOUX
R978,58
Mun Account No: 68272
Piketberg Case No.: 475/2009
JOHANNES HERMANUS DU PREEZ
R4 419,02
Mun Account no: 55360
Piketberg Case No.: 518/09
JAKOBUS JOHANNES SMIT
R6 260,90
Mun Account NO: 54729
Piketberg Case No.: 519/09
DIRK ALBERTUS JOHANNES BRAND
R6 068,26
Mun Account No: 57173
Piketberg Case No.: 506/09
HUGO DE WAAL
R2 337,38
Mun Account No: 55176
Piketberg Case No.: 477/09
HUGO DE WAAL
R1 922,04
Mun Account No: 55105
Piketberg Case No.: 478/09
HUGO DE WAAL
R2 690,86
Mun Account No: 54937
Piketberg Case No.:
JOHANNES NICOLAAS SMIT
Mun Account No: 53732
Piketberg Case No.: 622/09
STEPHANUS FRANCOIS VISSER VAN GEEMS
R3 823,96
Mun Account NO: 54013
Piketberg Case No.: 594/09
STEPHANUS FRANCOIS VISSER VAN GEEMS
R4 633,06
Mun Account No: 53980
Piketberg Saak No: 594/09
FREDERIK WILLEM GEORGE KELLERMAN
Mun Account No: 63515
Porterville Saak No: 240/09
FREDERIK WILLEM GEORGE KELLERMAN
Mun Account no: 63160
BAREND RUDOLF KELLERMAN
R1 884,50
Mun Account No: 62582
Porterville Case No.: 255/09
HERMANUS ENGELBRECHT SMIT
R1 219,39
Mun Account No: 56388
Piketberg Case No.: 513/09
HERMANUS ENGELBRECHT SMIT
Mun Account No: 6076000
Piketberg Saak no: 635/09
MARTHINUS PIETER KRIEL
R24 461,57
Mun Account No: 62952
Piketberg Case No.: 466/07
MARTHINUS PIETER KRIEL
R24 540,89
Mun Account No: 62952
Piketberg Case No.: 465/07
JOHAN CAREL BRINK
Mun Account No: 6253000
Piketberg Case No.: 380/06
JOHAN CAREL BRINK
Mun Account No: 6253010
Piketberg Case No.: 382/06
JOHAN CAREL BRINK
R8 672,05
Mun Account No: 59163
Piketberg Saak No: 617/09
JOHAN CAREL BRINK
Mun account No: 58811
Piketberg Case No.: 623/09
JOHAN CAREL BRINK
R4 950,93
Mun Account No: 64075
Piketberg Saak No: 470/09
JOHAN CAREL BRINK
Mun Account No: 6253020
Piketberg Case No.: 383/06
JOHANNES HENDRIK VISSER
R9 937,81
Mun Account No: 62840
Geen Case No.mmer
DANIëEL JOHANNES IMMELMAN
R41 532,23
Mun Account No: 64195
Geen Case No.mmer
DANIëL JOHANNES IMMELMAN
R7 870,94
Mun Account No: 63561
Geen Case No.mmer
1
In
terms of
s 10G(2)(d)(i)
of the
Local Government Transition Act
209 of 1993
, and after the repeal of that provision with effect from
1 July 2005, in terms of the definition of ‘financial
year’
in
s 1(1)
of the
Local Government: Municipal
Finance Management Act 56 of 2003
.
2
The
notice of motion indeed contained prayers for orders against the
individual respondents to pay their outstanding rates in
amounts set
out in annexure B to the notice and for costs orders to be made by
this court in the magistrate’s court actions.
3
Cf.
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222
(SCA); [2004] 3 All SA 1
,
at para 32-36. The concept of collateral challenge was
discussed in
Oudekraal
in the context of
administrative action. Under our constitutional system, which is
based on the rule of law, with the Constitution
as the supreme law,
and thus different from systems
characterised
by
parliamentary supremacy, I am unable to conceive of any reason in
principle why collateral challenge should not, in general,
also be
available as a defence by the citizen in proceedings in which he or
she is subject to coercive action by an organ of
state to enforce
compliance with obligations purportedly imposed in terms of
legislative action. Bearing in mind that rule of
law principles are
the determinant, the position might arguably be different, however,
in respect of a ratepayer questioning
the validity of a rates
impost. Factors that might support such a distinction include
(i) the ratepayer’s position
as an integral part of the
municipality
(s 2(b)
of the
Local
Government: Municipal Systems Act 32 of 2000
)
;
(ii) the responsibilities that attend the ratepayer’s
right to participate in the governance of municipal affairs
(s 5
of Act 32 of 2000); and (iii) the positively obligationary
import of the statutory duty on a ratepayer to make the necessary
enquiries from the municipality if he/she/it does not receive a
rates account
(s 27(2)
of the
Local Government: Municipal
Property Rates Act 6 of 2004
). These factors, amongst others,
suggest some degree of responsibility on ratepayers as constituent
components of a municipality
to be proactive, if needs be, in
ensuring the institution and maintenance of an effective rating
system. The appropriateness
of drawing the distinction was
insufficiently canvassed in the evidence and in the argument to make
this a suitable case to decide
the matter. Certainly, the applicant
did not contend on the papers that the respondents’ collateral
challenge was incompetent
on those grounds.
4
See
Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para 31-38 and 45 (a
matter decided in the context of the Interim Constitution) and
City
of Cape Town and another v Robertson and another
[2004] ZACC 21
;
2005
(2) SA 323
(CC) at para 53-60, read with s 229(1) and
s 160(2)(c) of the Constitution.
5
Graphically
d
escribed by Cameron JA in
Howick
District Landowners Association v Umngeni Municipality and Others
2007 (1) SA 206
(SCA) at para 3 as ‘
a
dense legislative setting that entwines a pre-constitutional
provincial ordinance, the legislation straddling the transition
to
the Constitution of the Republic of South Africa, 1996, and the set
of statutes Parliament enacted between 1998 and 2004 to
restructure
local government
’
.
6
The
provisions of the Municipal Ordinance had residual force because of
the effect of s 16(2) of the LGTA, which provided:
‘
Subject
to the provisions of this Act and any proclamation issued
thereunder, the provisions of the laws applying to local authorities
in the province concerned shall mutatis mutandis apply to any
transitional council or transitional metropolitan substructure
referred to in subsection (1)’
read with s 14 of the
Structures Act. Those provisions were ‘
national
legislation’
within the meaning of s 229(2)(b) of the
Constitution, quoted below, at para . In
Rates Action Group
v City of Cape Town
2004 (5) SA 545
(C);
2004 (12) BCLR 1328
;
[2004] 3 All SA 368
it was held that the provisions of s 75A of
the Systems Act (which was inserted into the Act in terms of s 39
of Act
51 of 2000, before the Systems Act came into operation on
1 March 2001) co-existed alongside the equivalent provisions of
s 10G(7) of the LGTA for so long as the latter remained in
effect and that it was open to a municipality, when imposing
fees
for services provided, to elect which of the provisions to use. At
para 48 of the judgment, Budlender AJ (Moosa J
concurring)
observed ‘
The implication … is that there are two
mechanisms which are open to municipalities for imposing fees and
charges - the
LGTA mechanism and the Systems Act mechanism. The
municipality may elect which of those it is to use, and must then
follow the
procedure stipulated in that statute.
’ Section
75A of the Systems Act provides:
75A General power to levy and recover fees,
charges and tariffs
(1) A municipality may-
(a) levy and recover fees, charges or tariffs in
respect of any function or service of the municipality; and
(b) recover collection charges and interest on any
outstanding amount.
(2) The fees, charges or tariffs referred to in
subsection (1) are levied by a municipality by resolution passed by
the municipal
council with a supporting vote of a majority of its
members.
(3) After a resolution contemplated in subsection
(2) has been passed, the municipal manager must, without delay-
(a) conspicuously display a copy of the resolution
for a period of at least 30 days at the main administrative office
of the municipality
and at such other places within the municipality
to which the public has access as the municipal manager may
determine;
(b) publish in a newspaper of general circulation in
the municipality a notice stating-
(i) that a resolution as contemplated in subsection
(2) has been passed by the council;
(ii) that a copy of the resolution is available for
public inspection during office hours at the main administrative
office of
the municipality and at the other places specified in the
notice; and
(iii) the date on which the determination will come
into operation; and
(c) seek to convey the information referred to in
paragraph (b) to the local community by means of radio broadcasts
covering the
area of the municipality.
(4) The municipal manager must forthwith send a copy
of the notice referred to in subsection (3)(b) to the MEC for local
government
concerned.
7
The
provisions of which are set out in full at para , below.
8
Section
179; as to which see para , below.
9
Sections
88-89. Sections 88 and 89 of the MPRA provide:
88
Transitional arrangement: Valuation and rating
under prior legislation
(1) Municipal valuations and property rating
conducted before the commencement of this Act by a municipality in
an area in terms
of legislation repealed by this Act, may, despite
such repeal, continue to be conducted in terms of that legislation
until the
date on which the valuation roll covering that area
prepared in terms of this Act takes effect in terms of section 32
(1).
(2) For purposes of subsection (1), any reference in
such repealed legislation to a 'local authority', 'local council',
'metropolitan
local council', 'rural council' or 'other unit' of
local government must-
(a) in relation to an area situated within a
metropolitan municipality, be regarded as referring to that
metropolitan municipality;
(b) in relation to an area situated within a local
municipality, be regarded as referring to that local municipality;
and
(c) in relation to an area situated within a
district management area, be regarded as referring to the district
municipality in
which that district management area falls.
Transitional arrangement: Use of existing
valuation rolls and supplementary valuation rolls
(1) Until it prepares a valuation roll in terms of
this Act, a municipality may-
(a) continue to use a valuation roll and
supplementary valuation roll that was in force in its area before
the commencement of
this Act; and
(b) levy rates against property values as shown on
that roll or supplementary roll.
(2) If a municipality uses valuation rolls and
supplementary valuation rolls in terms of subsection (1) that were
prepared by
different predecessor municipalities, the municipality
may impose different rates based on the different rolls, so that the
amount
payable on similarly situated properties is more or less
similar.
(3) The operation of this section lapses six years
from the date of commencement of this Act, and from that date any
valuation
roll or supplementary valuation roll that was in force
before the commencement of this Act may not be used.
10
Cf.
City
of Cape Town and another v Robertson and another
supra,
at para 52.
11
This
interpretation now falls to be qualified in a limited respect by
reason of the effect of s 11(2) of the MPRA, which
contemplates
the levying of rates in a uniform fixed amount on properties with a
market value below a prescribed ‘valuation
level’.
12
At
para 23-24.
13
In
Gerber
, supra, it was common cause between the parties
that nothing had been prescribed as contemplated by the first
proviso to s 10G(6)
to the LGTA. Counsel in the current matter
were also unable to identify that anything had been prescribed under
the provision,
and nor could the court’s researchers. I
consider that it is reasonable to conclude therefore that no
alternative basis
for rating was in fact prescribed.
14
Most
of the other provisions of the MFMA came into operation on 1 July
2004.
15
Local
Government: Property Rates Bill [B 19-2003] published in Government
Gazette No. 24589 of 18 March 2003. The MFMA received
Presidential
assent on 9 February 2004; see GN 176 published in Government
Gazette No. 26019 of 13 February 2004.
In
Howick
District Landowners Association v Umngeni Municipality and Others
supra, at para 6, it was observed that it had been expected and
indeed announced that the MPRA would come into effect on
the same
day as the MFMA, but that did not happen.
16
Cf.
Khosa v Minister of Social Development
and others; Mahlaule v Minister of Social Development
and
others
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6)
BCLR 569
at para 90.
17
The
President gave his assent to the MPRA in May 2004. In terms of s 96
of the Act it was to come into operation on a date
to be proclaimed
by the President in the Gazette. The required commencement notice
was published in a Proclamation signed by
the President on 21 June
2005, which was published in Government Gazette No. 27720 on
29 June 2005.
18
Section 88(1)
of the MPRA is quoted in note 9, above.
19
Section
16(1) of the MFMA.
20
Section
17(3)(a)(ii) of the MFMA.
21
Section
12(2) of the MPRA provides: ‘
The
levying of rates must form part of a municipality's annual budget
process as set out in Chapter 4 of the Municipal Finance
Management
Act. A municipality must annually at the time of its budget process
review the amount in the Rand of its current rates
in line with its
annual budget for the next financial year.
’
22
Cf.
African
National Congress and Another v Minister of Local Government and
Housing, Kwwazulu-Natal and Others
1998
(3) SA 1
(CC) at para 9 and
City
of Cape Town and another v Robertson and another
supra
at para 39.
23
Above
para .
24
Ibid.
25
At
para -.
26
I
might add that although the respondents conceded that the sliding
scale size-related levy on rural property was a ‘rate’,
I do not consider that the concession was legally sound. A rate
determined with regard to the size of a property only qualifies
as
such in my view if it is determined with reference to a consistent
measure of size, e.g. so many cents per square metre, or
per hectare
etc. Only in that manner does the charge correspond with the
essential feature of rates being an amount determined
by a
stated
value of numerical proportion prevailing or to prevail between two
sets of things.
It does not so qualify if the
charge is determined with regard to a number of different total size
categories as was done in the
current case.
27
See
Kungwini
at
para 50.
28
Act
97 of 1996 was the amending statute in terms of which s 10G(7)
was inserted into the LGTA.
29
Paragraph
4 of the notice might be read on a strictly literal approach as
having invited objections only to the tariffs and not
to the
determined rates, but Mr
Breitenbach
,
for the respondents, fairly and properly, in my view, indicated that
he did not wish to rely on such a reading.
30
Cf.
the observation in the majority judgment in
Kungwini
at para 45 ‘that rates are
traditionally imposed in respect of the financial year of a
municipality’. The observation
was supported by reference to
the various old order provincial ordinances. The reference to the
1951 Cape Municipal Ordinance
was
per
incuriam
. The applicable provision in
the Cape was in fact s 82(1)(a) of the Municipal Ordinance 20
of 1974, which remained in force
until repealed in terms of s 95
of the MPRA.
31
The
date of 30 September, which is the completion date of the first
three month period after the commencement of the municipal
financial
year, corresponds with the date after which a municipality was
enjoined in terms of s 87(2) of the Municipal Ordinance
20 of
1974 to demand payment of any outstanding rates within 14 days.
32
In
City of Cape Town and Another v Robertson and Another
supra,
at para 64-71, the Constitutional Court found nothing
constitutionally incompatible about the use by municipalities
of
provisional valuation rolls for rating purposes and thereby
implicitly found nothing exceptionable about a municipality exacting
payment of a sum in rates which might be subject to readjustment in
favour of the ratepayer dependent upon the outcome of a related
but
discrete reconsideration of matter pertinent to the calculation of
the rates liability.
33
These
provisions have been quoted in full at para , above.
34
At
para
, above.
35
Van
den Heever J had remarked loc cit: ‘
We
have a number of decisions in which the question is discussed
whether statutory provisions are ''peremptory'' or ''directory''.
In
this connection those are unfortunate expressions; we are not
concerned with the quality of the command but with the unexpressed
consequences flowing from it.
It is now generally accepted that
much learning has been wasted on the spurious classification of laws
into
perfectae
,
minus quam perfectae
and
imperfectae
and that the rescript of Theodosius and
Valentinian recorded in C 1.12.5 has no bearing on modern statutes.
Ultimately the problem
resolves itself into the question which was
the intention of the legislature, and this intention must be derived
from the words
of the statute itself, its general plan and its
objects
’
.
36
The
learned judge of appeal dealt with the difference between the
145,45% referred to in the resolution and the 146,45% referred
to in
the notice in a footnote to para 55 as follows: ‘
Nothing
was made of the fact that according to the notice the percentage
increase was 146,45% and not 145,45% as per the resolution.
’
37
At
311A.
38
At
para 28.
39
At
para 30.
40
That
the legislature accepted that there were, or might be,
municipalities which continued to use the Ordinance for rating
purposes
is recognised in the provisions of s 88(1) of the MPRA
- which, although they came into effect only on 2 July 2005,
had been unaltered in form since the presentation to the National
Assembly of the Local Government: Municipal Property Rates Bill
19B-2003 during 2003.
41
At
para -.
42
At
para 45.
43
The
Municipal Ordinance 20 of 1974 (Cape) provided for the annual
publication of the rates imposed in terms of the annual budget
to be
published in the press (s 74(3)(b) of the Ordinance).
Cf.
also
R v Schaper
, supra, in which Davis AJA, observing
that at common law promulgation occurred
secundum eam formam quae
solita est observari
, found that the publication of a municipal
bylaw in only the English language, as was then customary in the
Province of Natal,
and not also in Afrikaans which was then the
other official language, did not offend against the requirement of
s 137 of
the South Africa Act that ‘
all records,
journals, and proceedings of Parliament shall be kept in both
languages, and all Bills, Acts, and notices of general
public
importance or interest issued by the Government of the Union shall
be in both languages
’, holding that a municipality was
‘
neither Parliament not the Government’
.
44
Cf.
CDA Boerdery (Edms) Bpk and Others v
Nelson Mandela Metropolitan Municipality and Others
[2007] ZASCA 1
;
2007
(4) SA 276
(SCA) at para 33-38.
45
Concise
Oxford English Dictionary
10
th
ed revised.
46
Cf.
Weenen
Transitional Local Council v Van Dyk
2000
(4) SA 653 (SCA) at para 17; and
Weenen
Transitional Local Council v Van Dyk
2000
(3) SA 435
(N) at 448J-449E. In the latter judgment the court,
applying pre-constitutional principles, characterised the levying of
rates
by a local council as administrative action. Accepting the
legislative nature of the action, the requirement of promulgation
for effectiveness of the action applies
a
fortiori
.
47
In
LC Steyn
Uitleg van Wette
5de uitgawe at 180 the point is expressed thus :
‘
Ons skrywers wat die saak
behandel
[commencement of laws]
,
is dit eens dat wette afgekondig moet word alvorens hulle die
ingesettenes bind. Cocceius wys daarop dat promulgasie geen
essentiële vereiste vir die totstandkoming van die wet self is
nie, maar slegs ’n voorwaarde vir gebondenheid deur die
wet:
“
non pertinent ad
essentiam legis, sed ad effectum obligationis
”
.
Vir bedoelde gebondenheid is dit nie voldoende dat ’n person
wat deur die wet getref word, bekend is met sy inhoud nie.
’n
Formele bekendmaking deur die soewerein is noodsaaklik.
’
48
In
Busa
, the promulgation of the regulations in the
Gazette
was found to be effective, notwithstanding the failure of the local
authority also to post translated copies of the regulation
in the
affected area as required in terms of s 38(6) of Act 25 of
1945. The judgment of Steyn CJ pertinently distinguishes
acts of
formal promulgation, which are necessary to give a law effect, from
ancillary actions statutorily prescribed to specially
inform the
affected section of the public of the existence of the law so as
promote informed compliance. In the context of the
matter under
consideration in
Busa
, while the requirement of promulgation
was imperative, the requirement of additional advertisement was held
to be directory.
49
In
matters in which the properties are owned by trusts I have used the
name of the trust rather than those of the relevant trustees
who
were individually cited as respondents.
50
Cf.
Firestone South Africa (Pty) Ltd v
Genticuro AG
1977 (4) SA 298
(A).
51
See
note 49, above.