Williams v Benoni Town Council

• Jurisdiction: South Africa
• Judge: Roper J
• Judgment Date: 09 August 1948
• Citation: 1949 (1) SA 501 (W)
• Hearing Date: 14 July 1948
• Court: Witwatersrand Local Division

Roper, J.:

The applicant is the registered owner of a plot in certain agricultural holdings, certified as such under the provisions of Act 22 of 1919, known as the Kleinfontein Agricultural Holdings Settlement, and situated within the Benoni municipal area. He alleges that until June, 1947, his holding was rated by the respondent Municipal Council at the reduced rate applicable to agricultural land, provided for in sec. 19 of the Local Authorities Rating Ord. 20 of 1933 (Transvaal) as amended by Ord. 15 of 1941. In 1948, however, the respondent imposed the full assessment rate upon the site value of the holding, and proposes to continue doing so. He contends that the respondent is not entitled to do this and he prays for an order declaring that the respondent is entitled to

Roper J

levy rates only upon the fraction referred to in the Ordinance, as amended, of the site value of the holding; or alternatively that the respondent is only entitled to levy rates upon the fraction referred to of the site value of such portions of the holdings as are bona fide and exclusively used as agricultural land.

The application is made under the provisions of sec. 102 of Act 46 of 1935, which empowers the Court to make a declaratory order notwithstanding that the party suing for it is unable to claim any relief consequential upon the declaration. Mr. Coaker, for the respondent, has taken an objection in limine to the jurisdiction of the Court to entertain the application. He maintains, in the first place, that the Court is not entitled to act under the section unless there is in existence, at the time of the institution of proceedings, a concrete dispute between the parties; and secondly, that in the present case there was no such 'dispute' when the applicant filed his petition.

I do not consider that the first of these two propositions is correct as a rule of general application. The cases do not seem to require anything more than that there shall be a concrete dispute in existence between the parties at the time when the Court is asked to deal with the matter. In Ex parte Ginsberg (1936 TPD 155) in which the Court was asked to declare that the applicant would be entitled to an order for admission as an attorney on his attaining a certain academic qualification, a reference to the record shows that there was no allegation by the petitioner of any dispute between himself and the Law Society as to his right to admission prior to the filing of the petition. Notice of the application was served upon the Society, and opposition to the petitioner's claim manifested itself at the hearing only. It is true that in Maitland Cattle Dealers (Pty.) Ltd v Lyons (1943, W.L.D. 1), MILLIN, J., held in effect that a declaration praying for a declaratory order under the provisions of the section was excipiable in the absence of an allegation that a dispute had arisen between the parties. But there, the respondent (defendant in the action) contented himself with attacking the declaration as it stood, on the ground of its deficiencies. The papers did not reveal, nor did the defendant admit at the hearing of the exceptions, that there was a dispute between himself and the plaintiff at any stage. That this was the basis of the decision appears from a passage in the judgment of MILLIN, J., in which he says,

'Of course it is quite true that if the defendant in this case had come into Court and had said in a statement from the Bar that in fact there was a

Roper J

dispute, but he objected for other reasons to the declaration of rights being granted, the position would be different. The Court might say that there is no dispute on the papers, but the party is here before the Court and states there is a dispute. The position is different where he says that he declines to take up any attitude and relies on the declaration and objects to it because it does not contain anything which justifies the plaintiff in suing him for an order.'

The case therefore does not support counsel's first proposition.

In order to deal with Mr. Coaker's second submission it is necessary to refer to the history of the application.

Having received from the respondent an assessment for rates for the year ended 30th June, 1948, in which he was not given the benefit of the lower rate provided by sec. 19 of Ord. 20 of 1933, in the case of agricultural land, the applicant addressed on the 24th March, 1948, a letter to the Town Clerk, in which he claimed to be a bona fide farmer, and only a farmer, making a living by working on his plot, and asked for an investigation into the matter by the Council, suggesting that he should be given an opportunity of personally stating his position to the Council. In reply to this letter the Town Treasurer addressed a lengthy letter to the applicant purporting to set out the reasons which had led to his department imposing the full...