Brown v Cape Divisional Council and Another

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Wessels JA, Corbet JA, Hofmeyr JA and Trengove AJA
• Judgment Date: 16 November 1978
• Hearing Date: 29 August 1978
• Citation: 1979 (1) SA 589 (A)
• Court: Appellate Division

Hofmeyr JA:

This appeal is against the dismissal with costs of an application made by the appellant in the Cape of Good Hope Provincial Division. The application was for an order:

"(a)

Declaring that an enhancement levy consequent upon the rezoning of the property formerly owned by him, namely remainder of Lot 6, Block 'A', and Portion 4B of Lot 4, Block 'A', Philippi, is not exigible against him.

(b)

G Declaring that s 35 ter of Ord 33 of 1934 is ultra vires the powers of the enabling legislation.

(c)

Declaring that as a former owner of the said property he cannot be compelled to pay an enhancement levy in relation thereto.

(d)

Alternative relief.

(e)

H Costs against first respondent only except in the event of the opposition of second respondent, in which case costs are claimed against both respondents."

I shall herein refer to the appellant as the applicant, to the first respondent (the Divisional Council of the Cape) as the Council and to the second respondent as the Administrator, it being understood that the reference is to the Administrator of the Cape Province, acting with the advice and assistance of the Executive Committee of the Province.

Hofmeyr JA

The sequence of events culminating in the dismissal of the application was as follows:

The applicant was the owner of the above-mentioned property as from some A date prior to the promulgation of the Townships Amendment Ordinance 25 of 1969 on 26 September 1969. By s 4 of this Ordinance a new section, 35 ter, was inserted in the Townships Ordinance 33 of 1934, whereby a discretion was conferred upon the Administrator to determine whether a development contribution was due to the local authority concerned by an owner whose B property had been beneficially affected by a rezoning of his land in terms of s 35 bis of the said Townships Ordinance or whether compensation should be due from the local authority to an owner of any land injuriously affected by such rezoning. The applicant's property which had been zoned as agricultural land was on 29 July 1970, in terms of s 35 bis of the C Townships Ordinance, rezoned by the Administrator for use for industrial purposes. On the same date the Administrator, in terms of s 35 ter of the Ordinance, directed that a development contribution of R59 300 was due to the Council. During the period 29 July 1970 to 26 October 1970 the applicant sold the property to Suburban and Industrial Properties (Pty) Ltd. Although disputing his liability for such development contribution, D the applicant paid the contribution under protest. The date of payment was 26 October 1970, the very day on which the property was transferred out of the applicant's ownership into that of the purchasing company. The purchase price is unknown but it is emphasized by the applicant that the Council

"has been collecting rates from the new owners ever since the said transfer".

E On 20 August 1971 Ord 13 of 1971 was promulgated. In terms of s 35 ter (2) as substituted by s 1 of the 1971 Ordinance the Administrator was empowered to cancel or from time to time to vary a development contribution order before such order had been complied with. Relying upon this provision the Administrator, on 4 October 1971, resolved to set aside the development contributions fixed on 29 July 1970, including the F applicant's contribution. The Council was instructed by the Administrator to inform the applicant of the cancellation and that owners could apply for a refund pending new development contributions to be levied at a later date. It was also suggested that owners should be invited to leave amounts G paid by them with the Council if they so wished pending the levying of fresh contributions.

The applicant elected to receive a refund of the full amount paid by him. On 23 January 1972 the Council repaid to the applicant the difference between R59 320 and R42 076 (being the new contribution suggested by the Council in its letter addressed to the applicant on 23 December 1971) and interest on the first-mentioned amount. Subsequently, on 29 August 1972, H the balance was released to the applicant with interest. The payment was made by the Council "as a matter of policy".

In the meantime, on 24 March 1972, Ord 3 of 1972 was promulgated amending s 35 ter (1) of the Townships Ordinance so as to enable the Administrator to prescribe a development contribution or compensation with retrospective effect as from the coming into force of Ord 25 of 1969, being 26 September 1969.

Despite the repayment of all development contributions, including

Hofmeyr JA

the applicant's, the Council maintained that, because a contribution order could, in terms of s 35 ter (2), be cancelled or varied only before such A order had been complied with, it (the Council) was uncertain whether the cancellation of the applicant's contribution was valid and effective or not, since the applicant had complied with the Administrator's order. There may be some substance in this view.

Whatever the answer to this suggestion may be, it was submitted on behalf B of the Council that the amendment of the Townships Ordinance by s 5 of Ord 17 of 1973 was probably prompted by the decision in Davies and Others v Administrator, Cape Province, and Another 1973 (3) SA 804 (C) at 811H where it was held, on a subsidiary submission on behalf of the Administrator, that the above-mentioned restriction upon the Administrator's power to cancel or vary a development contribution did not fetter the discretion of the Court to set aside such a contribution on appropriate grounds.

C It was further submitted on behalf of the Council that it was decided by the Administrator to make a new start but with effect from 26 September 1969 when s 35 ter in its original form became law. Defects which may D have remained in the earlier enactments were to be...