City of Cape Town and Another v Robertson and Another

• Jurisdiction: South Africa
• Citation: 2005 (2) SA 323 (CC)

City of Cape Town and Another v Robertson and Another
2005 (2) SA 323 (CC)

2005 (2) SA p323

Citation	2005 (2) SA 323 (CC)
Case No	19/04
Court	Constitutional Court
Judge	Langa ACJ, Moseneke J, Mokgoro J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	September 7, 2004
Judgment	November 29, 2004
Counsel	A G Binns-Ward SC (with him A M Breitenbach) for the first applicant.; W H Trengove SC (with him P Coppin) for the second applicant.

Flynote : Sleutelwoorde E

Constitutional law — Legislation — Validity of — Section 21 of Local Government Laws Amendment Act 51 F of 2002 — Constitutional Court declining to confirm declaration of invalidity of s 21 by High Court.

Local authority — Municipality — Rates — Imposition of — On basis of provisional valuation roll — Municipality deriving power to value and impose rates on property from s 229(1) of Constitution; from ss 93(4) and G (5) of Local Government: Municipal Structures Act 117 of 1998, read with s 10G of Local Government Transition Act 209 of 1993; and from ss 12 and 14(1)(b) of Structures Act — Such power including entitlement to rely on property valuation in provisional roll.

Local authority — Municipality — Rates — Imposition of — On basis of provisional valuation H roll — Property Valuation Ordinance of 1993 (C) not precluding imposition of rates on basis of provisional, supplementary or interim valuation roll.

Headnote : Kopnota

The respondents (applicants a quo) were rate-payers who considered themselves aggrieved by the increased rates levied on I them for the 2002/3 financial year by the City of Cape Town (the city). The rates were levied on the basis of property valuations contained in a provisional valuation roll. In the High Court the respondents alleged that the city was not empowered by the enabling legislation to impose rates on the basis of property valuations contained in a provisional valuation roll for the following reasons: (1) The J

2005 (2) SA p324

Property Valuation Ordinance of 1993 (C) (the PVO) was not available to the city A as it had lapsed upon implementation of the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993). Although the PVO had been enacted, it was not yet 'in force' and was therefore not preserved by the provisions of s 229 of the interim Constitution. (2) Even if the PVO had not lapsed, the provisions of the PVO were not available to the city as it applied only to local authorities and the city was not a 'local authority' as contemplated by the PVO. (3) The B PVO in any event did not authorise the imposition of rates on the basis of a provisional valuation roll. The High Court found, on the second and third grounds advanced by the respondents, that the city had indeed acted ultra vires and granted an order interdicting and restraining the city from levying and recovering the rates levied on the objected-to basis. After institution of proceedings but before C the hearing of the matter, s 21 of the Local Government Laws Amendment Act 51 of 2002 (the Amendment Act) was enacted, which inserted ss 93(7) - (10) of the Local Government: Municipal Structures Act 117 of 1998 (the Structures Act). The respondents sought and were granted a declarator to the effect that s 21 of the Amendment Act was unconstitutional for want of compliance with ss 154(2) and 229(5) of the Constitution of the Republic of South D Africa Act 108 of 1996 (the Constitution) and accordingly invalid. The Constitutional Court was seized with confirmation of the High Court's order of constitutional invalidity, as well as an appeal by the city against the other orders of the High Court that were not subject to confirmation. The appeal concerned the validity of the provisional valuation roll and the validity of the decision to levy rates on the basis of such a roll. E

Was the PVO a 'law in force'?

Held, that the PVO had indeed been a law 'in force' at the time of inception of the interim Constitution and that it was therefore available to the city for the purposes authorised by that ordinance. Section 93(7) of the Structures Act merely served to confirm this position. (Paragraph [37] at 342B.) F

Was the city a 'local authority'?

Held, that in terms of ss 93(4) and (5) of the Structures Act, a final phase municipal council assumed the powers, authority and obligations of its predecessor under s 10G of the Local Government Transition Act 209 of 1993. The city was a municipality whose legislative and executive authority vested in a municipal G council. The provisions of s 10G of the Transition Act therefore applied to the city. (Paragraphs [39] and [40] at 343D - E and 343F/G - 344A/B.)

Held, further, that ss 10G(6) and 10G(7)(a)(i) of the Transition Act conferred substantive powers on municipalities to measure or value property and to impose property rates based on that H valuation. Those powers had to be exercised in accordance with procedures prescribed by any other applicable law. (Paragraph [43] at 345B - C.)

Held, further, that the words 'any other law' in s 10G(6) referred to property valuation legislation which was applicable to the city's predecessors at the time of the enactment of s 10G(6). This included the PVO, which meant that the property measurement and ratings I powers conferred by ss 10G(6) and 10G(7)(a)(i) had to be exercised within the procedural and other requirements of the PVO, provided they were not inimical to the terms of ss 10G(6) and 10G(7)(a). (Paragraph [44] at 345C/D - E/F.)

Held, further, that ss 93(4) and (5) of the Structures Act properly preserved and extended to a municipality established under that Act, such as the city, the J

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substantive power to impose and recover property rates based on property valuations. (Paragraph [45] at A 345G.)

Sections 12 and 14 of the Structures Act

Held, alternatively, that s 14 of the Structures Act vested the powers and obligations of existing municipalities in the new superseding municipalities, such as the city. (Paragraph [51] at 347G.) B

Local government and the Constitution

Held, further, that a municipality enjoyed 'original' and constitutionally entrenched powers, functions, rights and duties and that the conduct of a municipality was not invalid merely because it was not authorised by legislation. (Paragraph [60] at 351B - C.)

Held, further, in conclusion, that (1) the city, being a municipality established under ch 7 of the Constitution read with the C Structures Act, derived its powers to value and impose rates on property, in the first instance, from s 229(1) of the Constitution; (2) to the extent that it was necessary, in terms of ss 93(4) and (5) of the Structures Act read with s 10G of the Transition Act, from 5 December 2000, the city assumed the power and the obligation to valuate property as had been required of its predecessors, subject to any law, which included the PVO; and (3) one of the consequences of the D provisions of ss 12 and 14(1)(b) of the Structures Act was that all laws that applied to an existing municipality applied to the superseding municipality, in this case, the city. (Paragraph [62] at 351F - 352B.)

Held, further, that the provisions of s 93(8) of the Structures Act were redundant as they purported to confer a power upon the city that it already had. (Paragraph [63] at 352C.) E

Provisional valuation roll and s 93(9) of the Structures Act

Held, further, that there was nothing in the provisions of s 10G of the Transition Act that restricted the power of a municipality to the use of a final, and not a provisional, valuation roll for the purpose of determining property rates. (Paragraph [67] at 353C - D.) F

Held, further, that s 229(1)(a) of the Constitution did not prohibit the use of a provisional valuation roll for the purpose of imposing rates. (Paragraph [67] at 353E.)

Held, further, that, although silent on the matter, the PVO seemed to anticipate and favour the use of a provisional valuation roll. The requirement of final certification in the PVO was not to be seen as precluding the imposition of rates on the basis of a G provisional, supplementary or interim valuation roll. (Paragraphs [68] and [70] at 353F and 354B/C.)

Held, further, that the city was thus entitled to rely on the provisional valuation roll for the imposition of property rates in its area of jurisdiction and that s 93(9) of the Structures Act was redundant and, at best, explanatory. (Paragraph [71] at 354D.) H

Enactment of the Amendment Act

Held, having regard to all the relevant considerations, that the constitutional challenge to s 21 of the Amendment Act could not be decided, and that the order of constitutional invalidity made by the High Court could thus not be confirmed. (Paragraph [77] at 355I.) I

Held, accordingly, that the appeal had to be upheld and the orders of the High Court set aside and replaced with an order dismissing the application. (Paragraph [78] at 356A.)

The decision in Robertson and Another v City of Cape Town and Another; Truman-Baker v City of Cape Town2004 (5) SA 412 (C) (2004 (9) BCLR 950) reversed. J

2005 (2) SA p326

Cases Considered

Annotations A

Reported cases

African National Congress and Another v Minister of Local Government and Housing, Kwazulu-Natal, and Others1998 (3) SA 1 (CC) (1998 (4) BCLR 399): dictum in paras [4] - [12] applied

De Lange v Smuts NO and Others1998 (3) SA 785 (CC) (1998 (7) BCLR 779): applied B

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 19961996 (4) SA 744 (CC) (1996 (10) BCLR 1253): dictum in para [194] applied

Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another; Executive Council, Kwazulu-Natal v...