City of Cape Town v Claremont Union College

• Jurisdiction: South Africa
• Citation: 1934 AD 414

City of Cape Town Appellant v Claremont Union College Respondent
1934 AD 414

1934 AD p414

Citation	1934 AD 414
Court	Appellate Division
Judge	Wessels CJ, Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
Heard	March 21, 1934; March 22, 1934
Judgment	May 4, 1934

Flynote : Sleutelwoorde

Municipality — Rates — Exemptions — Implied power of municipality to decide upon — Effect of communication of decision to owner — Ordinance 10 of 1912 (Cape).

Headnote : Kopnota

A municipality constituted under Cape Ordinance 10 of 1912 has implied power to determine every year what properties are rateable, and what properties are not rateable for that year, and a decision that a property is exempt from payment of rates communicated to the owner of the property is binding on the municipality, which is thereafter precluded from suing the owner for the, rates which should have been imposed and paid because in fact the property was rateable and not exempt from payment of rates. (CURLEWIS, J.A. and BEYERS, J.A., dissenting.)

The decision of the Cape Provincial Division in City of Cape Town v Claremont Union College, in part reversed and in part confirmed, but for different reasons.

Case Information

Appeal from a decision of the Cape Provincial Division (GARDINER, J.P.).

The facts appear from the judgment of WESSELS, C.J.

R. P. B. Davis, K.C. (with him F. Reid), for the appellant: The words "make," "levy," "assess" and "rate" are used inconsistently and usually as interchangeable terms in connection with rates in Ordinance 10 of 1912 (C.). The same criticism, applies to earlier legislation. Mogg v Clark (15 Q.B.D. 82 and 16, Q.B.D. 79 at p. 82), relied on by the Court below, is so confined to its particular statute and facts that it is not brought up at all in Arnold's Law of Municipal Corporations or in the Empire Digest or in Halsbury's Laws of England (vol. 24) under the heading "Rates and Rating" but only in vol. 3 (new ed.), p. 505

1934 AD p415

under "Burials." In any case the passage relied upon was obiter.

As to "levied" as connoting the date when a rate falls due, see Cape Town Town Council v Royal Hotel (23 C.S.C. 694 at p. 702). As to "levy" referring to the date of the published notice, see Papendorf v Somerset East Municipality (19 C.T.R. 225). See also Middelburg Municipality v Teukolsky (1930 AD 311).

It is not questioned that the proper procedure for rating property was followed. As required by sec. 57 of Ordinance 7 of 1914, secs. 150, 136, 153, 159, 155 of Ordinance 10 of 1912 in care of municipalities and secs. 117, 118, 115, 119, 125, 121 (1) in case of divisional councils. See also Davis v Burrell and Lane (1851, 10 C.B. 821 at p. 826 and 138 E.R. 325 at p. 327); Gill v Mellor (1924, 1 K.B. 97) and Rex v Blenkinsop (1892, 1 Q.B. 43).

In imposing rates councils have no discretion. Prima facie all immovable property is rateable and the onus is on anyone who claims that his property is exempt, especially as exemption increases the burden on other property. See sec. 136 of the Municipal Ordinance of 1912 and sec. 115 of the Divisional Council Ordinance of 1917; Rondebosch Municipal Council v Trustees of W.P. Agricultural Society (1911 AD 271 at p. 285 ad fin and pp. 289-90) applied in Wynberg Municipality v Plumstead Sanatorium Trustees (1919, C.P.D at p. 170) and Marist Bros.' Trustees v Port Elizabeth Municipality (1924, A.D at p. 491, opening remarks of INNES, C.J.).

As the councils have no discretion, liability for rates or exemption is a pure question of fact. Compare the converse case of Meyjes v Rustenburg Municipality (1912 TPD 1091 at pp.1098-9). Consequently mere non-claiming of rates is irrelevant.

See East London Municipality v Legate (1915 AD 313 at pp.321, 322) and Long v City of Cape Town (1925 CPD 127 at pp. 130-1).

Public bodies cannot forego charges imposed in terms of a statute - (a) by waiver. See Collector of Customs v Cape Central Railways (6 C.S.C. 402) and Dormer v Cape Town Town Council (4 C.S.C. 240); (b) by contract. See East London Municipality v Legate (supra) and Cape Town Municipality v Table Bay Harbour Board (23 C.S.C. 639 at p. 653); or (c) by estoppel. See Hoisain v Wynberg Town Council (1916 AD 236).

Still less can they be bound by mistaken or negligent omission. See Long v Cape Town Municipality (supra); Gluckman's case

1934 AD p416

(1 SA Tax Cases 1); Kent v Commissioner of Customs (1929. T.P.D. 714 at p. 724); Lappan v Corporation of Grahamstown (1906, E.D.C. 40); Grahamstown Town Council v Jordan (10 E.D.C. 116); sec. 3 of Ordinance 7 of 1925.

The hardship of having to pay rates due, but not previously claimed, is not so great as the injustice of innocent persons having to pay more because those rates had not been claimed. Consequently if the third rule in Principal Immigration Officer v Bhula (1931, A.D at p. 333) has any application in this case, it should be applied for and not against appellants contention.

The requirements of the Ordinance as to rate books are not clearly stated in the Ordinances. But, even if they had provided that the amount to be paid in respect of a particular property should be set against the name of the owner in a rate book, such provision would not amount to a condition precedent to the recovery of rates. See Reed v Port Elizabeth Municipality (1909, E.D.C. 82 at pp. 94 and 98).

W. H. Mars, K.C. (with him T. G. Duncan), for the respondent: A notification of ex emption if intra vires binds the Council even if there had been no de facto exemption. See Halsbury's Laws of England (2nd ed., vol. 8, p. 76).

The Council is required by sec. 152 of Ordinance 10 of 1912 to decide which properties are ratable. See secs. 135, 150, 154, 157, 160 and 161. Sec. 127 requires books to be kept and that includes a rate book. Civic privileges flow from the rating of property. See secs. 18, 180, 210, 222, 178, 254, 258 and 3 of Ordinance 7 of 1926 amending sec. 137.

Even if the Ordinances do not require the Council to decide, such a decision is reasonably ancillary to the powers conferred upon the Council. See Johannesburg Municipality v Davies and Another (1925, A.D at p. 402) and Halsbury's Laws of England (vol. 8, para. 125). Past legislation shows that it is nothing new for a municipality to have such powers of decision. See Act 45 of 1882, sec. 116; Beet and Another v Kimberley Divisional Council (4 H.C.G at p. 344); East London Municipality v McJanet (1911, C.P.D at p. 1037 and 1912, A.D at p. 168); Germiston Town Council v Victoria Falls Co. (1931, W.L.D at p. 114).

If, as contended by appellant, any decision is a nullity, the Ordinances are unworkable.

1934 AD p417

If a decision upon the ratability of property is intra vires, then it stands after it's communication, until it is set aside by way of restitutio in integrum upon some just ground and no such just ground has been alleged. See Hendon Paper Works Co. v Sunderland Assessment Committee (1915, 1 K.B at pp. 768, 771, 774) and Braunschweig Village Management Board v Union Government (1917, E.D.L. 186).

If the Council is not required to decide the result will be inequitable and the Court will lean against such a result. See Principal Immigration Officer v Bhula (supra) and Borcherds N.O. v Rhodesia Asbestos Co. Ltd. (1930 AD 121). This case is distinguishable from cases dealing with a mere receiver of revenue because a Council creates its own revenue.

Davis, K.C., in reply cited Halsbury's Laws of England (vol. 8, para. 126) and Birkdale District Electric Supply Co. v Southport Corporation (1926, A.C. 364).

Cur adv vult.

Postea (May 4th).

Judgment

Wessels, C.J.:

The appellant, as plaintiff in the court below., claimed from the defendant the sum of £780 4s. 10d. with interest at 7 per cent., being arrear rates on certain property belonging to defendant for the years 1924 to 1932 inclusive. This amount plaintiff alleges defendant ought to have paid but has failed to pay. Plaintiff also claimed 978 9s. 7d. in respect of Divisional Council rates for that period. The defendant pleaded that the plaintiff and the Divisional Council exempted the properties from assessment and levy of rates and notified defendants in writing of such exemption, and this exemption and notification debar the plaintiff from making the claim set out above. On this the plaintiff joined issue. The only issue, therefore, before the court below was whether the yearly exemption of the properties by the Council and the notification to the defendant of such exemption constitute a good defence. There is no allegation of error or that the notification was not that of the Council but of an unauthorised person. The case made by the appellant is that the Council has no power to exempt rateable property from paying rates. If property is rateable and is placed on the valuation roll then the owner is obliged to

1934 AD p418

Wessels, C.J.

pay the rate fixed by the Council. As the owner is in law held to know the valuation of his property and the published rate, the amount due by him is automatically determined and this amount he must pay. The contention for the appellant is that it was ultra vires of the Council to exempt the properties during the years 1924 to 1932, that the exemption was a nullity in law and that therefore the Council can recover the arrear rates due and unpaid, notwithstanding the actual exemption and the notice of exemption.

The respondent contends that the exemption for each year is intra vires of the Council inasmuch as there is a necessary implication that the Legislature intended that the Council should direct its mind each year to the question what property should not be rated for that year notwithstanding the fact that the Ordinances in general terms provide that a rate shall be imposed on all rateable property. The respondents argue that as the act of separating rateable property from non-rateable...