Charlestown Town Board and Another v Vilakazi

• Jurisdiction: South Africa
• Citation: 1951 (3) SA 361 (A)

Charlestown Town Board and Another v Vilakazi
1951 (3) SA 361 (A)

1951 (3) SA p361

Citation	1951 (3) SA 361 (A)
Court	Appellate Division
Judge	Schreiner JA, Van Den Heever JA, Hoexter JA, Fagan JA, and De Villiers AJA
Heard	June 1, 1951
Judgment	June 7, 1951

Flynote : Sleutelwoorde

Municipality — Rates — Recovery of arrear rates and penalties. H — Ord. 21 of 1942 (N.), sec. 122 (5) — Scope of — Rights of recovery not modified by the duties imposed by para. (b) of sub-sec. (5).

Headnote : Kopnota

The duties imposed by paragraph (b) of sub-section (5) of section 122 of the Natal Local Government Ordinance 21 of 1942 do not modify the scope of the sub-section in relation to the rates and penalties recoverable under the machinery of the sub-section.

1951 (3) SA p362

The decision of the Natal Provincial Division in Vilakazi v Charlestown Town Board and Another, reversed.

Case Information

Appeal from a decision of the Natal Provincial Division (CARLISLE, A A.J.P., DE WET, J., and HOLMES, A.J.). The facts appear from the judgment of SCHREINER, J.A.

A. Mendelow, for the respondent (on being called upon): Sec. 122 (5) of Ord. 21 of 1942 (N.) is intended to provide only for the recovery of rates affected by that sub-section; this follows (1) from the B arrangement of sec. 122 into separate sub-sections; it has been held that the division of a section into sub-sections may be treated as punctuation and unessential; see Bosman's Trustee v Land and Agricultural Bank of South Africa and Another, 1916 CPD at pp. 53 - 4; Sigcau v Sigcau, 1941 CPD at pp. 344 - 5; to do this, however, C would be to lose sight of reality; see Steyn, Die Uitleg van Wette at p. 141; Swanepoel v Bloemfontein Town Council, 1950 (3) SA at p. 541. In England every section of an Act has effect as a substantive enactment; sec. 8, Interpretation Act, 1889 (52 and 53 Vict. Ch. 63); (2) from the fact that the property becomes 'charged' with the rates in D arrear for which provision is made in sub-sec. 5; (3) from the fact that the rates recovered by this method are payable, together with the costs of the petition and expenses of the sale, as a prior charge in contradistinction to rates recovered by any of the other methods prescribed; see sec. 122 (5) (c). The words 'prior charge' mean a E mortgage ranking in priority to any other debts; see Irwin v Davies, 1937 CPD at p. 447. The juristic nature of this charge in favour of a local authority was discussed in Bloemfontein Town Council v Estate Holzman and Others, 1936 OPD at p. 141. The phrases in sec. 122 (5), F 'the arrears of rates with penalties in respect thereof', and/or 'such arrears', and/or 'all rates and penalties', occurring as they do in sec. 122 (5), relate, in the context, only to the rates secured by the special charge provided in the subsection and are recoverable only to the extent provided by the sub-section. Sec. 124 would not, on G respondent's contention, prove an insurmountable barrier to transfer after a sale authorised under sec. 122 (5), if there were arrear rates owing for more than three years, since (a) the position would be identical if the local authority attached the property charged with the rate, in consequence of an ordinary civil action and on a sale in execution the price realised were less than the rates owing, (b) there H is no compulsion upon a local authority to use the method prescribed in sub-sec. 5; cf. sec. 122 (6). The interpretation contended for by respondent does not involve a multiplicity of proceedings and the necessity for expensive action at Common Law because (a) the local authority, as dominus litis, can determine the procedure most appropriate, (b) if a local authority neglects its duty for as long as three years, to collect arrear rates, it loses one method of recovery. The expense of collecting small amounts of rates by way of ordinary action

1951 (3) SA p363

in a magistrate's court is insignificant. It is not a proper approach to view the matter from the point of view of hardship to the ratepayer; the method of recovery under sub-sec. 5 is a privileged one provided in the interests of the local authority, in addition to its ordinary civil A remedies; cf. Ex parte Swakopmund Municipality, 1936 S.W.A. at p. 45. If the local authority has not complied with the conditions in sec. 122 (5), it is not for the Court to condone such non-compliance on the ground that it would be sensible to do so; see Ex parte Swakopmund Municipality, ibid. The limitation of the period to three years B indicates that the Legislature intended that a local authority should only have the right to use the extraordinary remedy of sub-sec. 5 for three years; cf. Aaron's Trustee v Pretoria Municipality, 1914 T.P.D. at p. 646. As the statute is one which deprives a ratepayer of his rights to property, it should be construed strictly against the C local authority and favourably towards the ratepayer; cf. In re Bowman: South Shields (Thames Street) Clearance Order, 1932 (2) K.B. at p. 633. If a local authority avails itself of the extraordinary powers committed to it, it is bound by the terms thereof and there can be no question of prejudice to a ratepayer or substantial performance by the D local authority; see Jacobsohn and Woolf v Municipal Council of Johannesburg, 1906 T.H. at pp. 100 - 1; Hurrell v Wink, 129 E.R. 425; Morton v Brammer, 141 E.R. 1377; Flanagan v Elliott, 1886 (12) S.C.R. 435 (Canada), cited in E. and E.D., vol. 18, p. 403, note 1437 (i). The inclusion of the rates for a period exceeding three years cannot be E treated as a mere plus petitio, since (a) the years in respect of which there were unpaid rates were not separately set out in the notice and (b) the statute only empowers the Court to grant a summary order on proof of the two factors mentioned in sec. 122 (5) (c). Rautenbach v. F Venner, 1928 T.P.D. at p. 30 has no application to the present matter since, (a) in the present case there is no question of a contract between two persons, (b) proof of compliance with the conditions prescribed in the statute is made a condition precedent to the grant of an order by the Court, see sec. 122 (5) (c); (c) in Rautenbach's case, G supra the amounts in the notice were clearly severable, (d) in the present case not only are the rights of immediate parties but also those of mortgagees are affected by the creation of the prior charge and (d) the Ordinance specifically requires that particulars of arrear rates and penalties shall be given. In any event, Rautenbach's case makes it clear that only in cases not relating to forfeiture does a mere plus petitio H not deprive the person making the demand of his rights. The main object of the notice is not to warn owners and mortgagees that the property is in danger of being sold but is the first link in a chain which may result in an owner or mortgagee being deprived of his rights without his knowledge. As to the defence of dolus, appellants, to establish this must prove, (a) that respondent's action in bringing the application was to his knowledge a deliberate violation of the requirements of bona fides; see Zuurbekom Ltd.

1951 (3) SA p364

v. Union Corporation Ltd., 1947 (1) SA at p. 535, and (b) that the alleged fraud was designed to prejudice some interest of the defrauded party in the sense that respondent intended to injure the party and not A merely to pursue his own interest; see Greyling v Peacock, 1942 OPD at p. 81. In any event, appellants are not entitled to admit that the statutory conditions were not fulfilled and at the same time to defend itself by allegations of dolus on the part of respondent; see Patz v Greene & Co., 1907 T.S. at p. 433. As to the requisites of the defence B of estoppel, see Bauman v Thomas, 1920 AD at pp. 435 - 6; such a defence must be specifically raised; see Lubbe v Colonial Government, 2 B.A.C. 269; Mha v Pinkerton, 1916 E.D.L. at pp. 390, 393; Roopsingh v Rural Licensing Board for Lower Tugela, 1950 (4) SA at p. 257. Before any attack can be made on the actions of respondent, it must be shown that when he acted he knew what his rights were; see C Roodepoort-Maraisburg Town Council v Eastern Properties (Pty.) Ltd., 1933 W.L.D. at p. 228; 1933 AD at p. 99.

D. G. Fannin, K.C. (with him N. James), for appellant, in reply: Any rate is a 'charge upon the property' by reason of secs. 120 and 122 (5); D with these two sections must be read...