Rondebosch Municipal Council v Trustees of the Western Province Agricultural Society

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J and Laurence J (Acting Ordinary Judge of Appeal)
• Judgment Date: 06 June 1911
• Citation: 1911 AD 271
• Hearing Date: 26 May 1911
• Court: Appellate Division

Lord De Villiers, C.J.:

The question to be decided in this appeal is whether certain land within the Municipality of Rondebosch occupied by the Western Province agricultural Society and used by it for the holding of agricultural shows is used for "public purposes" in terms of section 115, sub-section 2, of the Municipal let of 1883. That section enacts that save as thereinafter excepted "all land within any Municipality shall be rateable property." One of the exceptions is "land in the occupation of Government or of any person or public body and used for public purposes," and the learned Judge in the Court below held that the land now in question falls within this exception and is therefore not rateable property. I regret to say that, notwithstanding the weighty reasons adduced by him in support of this view, I feel impelled by what appear to me still weightier reasons to a different conclusion. There is no doubt that the objects of the Society are of the most laudable nature and that the industry of agriculture which it seeks to foster and promote is the most important industry of this and of almost every other country, but it is only one of many other valuable industries from which the public reaps benefits. The members of the Society derive no personal benefit from

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its revenues and the Parliament has recognised the value of its services to the country by making annual grants for its support, but it does not follow that the purposes for which the show ground is used are "public " in the sense contemplated by the Act. The members of the different Chambers of Commerce or of associations for the promotion and protection of various trades and members of the Incorporated Law Society derive no pecuniary benefit from the revenues of such associations whose objects are in every way laudable and for the benefit of the public, but it has not been suggested in argument that land used by them for the promotion of those objects would, on that account, not, be rateable. Such Associations share in the benefits, such as they are, to be derived from the existence of Municipal institutions and it may well be that in making annual grants to the applicant Society the Parliament bore in mind the pecuniary obligations to which the Society was subject as the owner and occupier of land within the limits of the respondent Municipality. Re that as it may, the intention of the Legislature as to the rateability or otherwise of the Society's land must be gathered from the terms of the Municipal Act of 1882. The previous general Municipal Statute (Ordinance 9 of 1836) contained no provision exempting Crown Land or land used for public purposes from payment of rates. Nor did any of the special Acts passed before 1879 relating to the Municipality of Cape Town relieve Government from the payment of rates on Crown lands situated within that Municipality. In that year, however, it was decided by the Cape Supreme Court in the case of Town Council of Cape Town v Colonial Government (Buch. 1879, p. 169) that Crown land so situated and occupied by the servants of the Government for Governmental purposes is not liable to be assessed for municipal rates. The ground of the decision was that by the Roman-Dutch Law, which in this respect bears a close resemblance to the law of England, the Government is not liable to pay rates unless the liability is specially imposed by the Act authorising the rates. In regard to, Divisional Councils the 28th section of Act 9 of 1858

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exempted from liability to road rates all immovable property belonging to the Crown, whether vested in the Colonial Government or otherwise, and all immovable property vested in or belonging to any Municipal Board. Under this section it was decided in 1882, in the case of Divisional Council of Port Elizabeth v Port Elizabeth Harbour Board (1 Juta 373), that land granted by the Crown to the Harbour Board for the purpose of improving the port and harbour did not fall within the exemption and was consequently liable to be assessed for Divisional Council rates. The land having been granted by the Crown to the Commissioners was held to be no longer vested in or belonging to the Crown. In both the Cape cases the English Mersey Docks case (12 L.T. 643) was cited in argument. It was there held by the House of Lords that when valuable property capable of yielding a nett rent above what it required for its maintenance is sought to be exempted on the ground that it is occupied by bare trustees for public purposes, the public purposes must be such as are required and created by the Government of the country and are therefore to be deemed part of the use and service of the Crown. Such was the state of the Cape Law and such the current of the English and Cape decisions at the time when the Act now in question was passed. The first sub-section of section 115 exempts from liability to Municipal rates "land the property of Her Majesty or of the Colonial Government which is unoccupied or used for public purposes." The expression "public purposes" is certainly a very vague one, so much so that in the Scotch case of Blair v Duncan (1902), A.C., 37, it was held by the House of Lords that a direction in a will that one half the residue of the testator's estate should be applied for such "public purposes" as the trustees should think proper was void for uncertainty. "The trustee," said Lord ROBERTSON, "would be within his powers if he gave the £9,000 to the election fund of any of the political parties that he pleased." The Court has now to deal, not with a direction in a will, but with an enactment of the Legislature and must give effect to the language used in the Act. The "public purposes"

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contemplated by the Legislature in the first sub-section were obviously such as fall within the functions of a constitutional Government, as for instance defence, the administration of justice, the maintenance of order and the repression of crime. If the Government, acting within the limits of the constitution, takes within the sphere of its administration the promotion of such industries as commerce or agriculture, land used for that purpose would be used for a public purpose. There appears to me to be no valid reason for attaching a wider signification to the expression "public purposes" in the second sub-section than in the first. An exception having been made in the case of land belonging to the Government which is unoccupied or used for public purposes the Legislature introduced another exception in favour of land not belonging to but occupied by the Government and used for public purposes and land occupied by "any person or public body and used for public purposes." Here again it is obvious that as far as it relates to land not belonging to but occupied by Government the exception only applies to such land as is used for Governmental purposes. If this view be correct it would be difficult to suppose that the Legislature intended the expression "public purposes" occurring in the second sub-section to have a different meaning...