IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Constitutional Court case no.: /2013
SCA case no.: 796/2011
WCHC case no.: 14190/2010
In the matter between:
BRITANNIA BEACH ESTATE (PTY) LTD First applicant
BRITANNIA BAY DEVELOPERS (PTY) LTD Second applicant
SANDY POINT BEACH PROPERTIES (PTY) LTD Third applicant
WEST COAST MIRACLES (PTY) LTD Fourth applicant
and
THE SALDANHA BAY MUNICIPALITY Respondent
FOUNDING AFFIDAVIT IN APPLICATION FOR LEAVE TO APPEAL
I, the undersigned,
HORST PSOTTA,
declare the following under oath: 2
1. I am an adult businessman and managing director of the fourth applicant, which has
its registered office situated at Tygerforum B, 53 Willie van Schoor Drive, Tyger
Valley, Bellville, Western Cape.
2. The contents of this affidavit are within my own knowledge, except where the context
indicates otherwise, and are true and correct. Where I make legal submissions I rely
upon the advice of the applicants’ legal representatives, which advice I verily believe
to be correct.
3. The applicants have all duly resolved to institute these proceedings, and I am
authorised to depose to this affidavit on their behalf.
The parties
4. The first applicant is BRITANNIA BEACH ESTATE (PTY) LTD, a private
company with limited liability duly incorporated in accordance with the company
laws of the Republic of South Africa, with its registered office situated at Tygerforum
B, 53 Willie van Schoor Drive, Tyger Valley, Bellville, Western Cape.
5. The second applicant is BRITANNIA BAY DEVELOPERS (PTY) LTD, a private
company with limited liability duly incorporated in accordance with the company
laws of the Republic of South Africa, with its registered office situated at Tygerforum 3
B, 53 Willie van Schoor Drive, Tyger Valley, Bellville, Western Cape and its
principal place of business situated at the Waterfront Terraces, Block 1, 3rd Floor,
Tyger Waterfront, Bellville.
6. The third applicant is SANDY POINT BEACH PROPERTIES (PTY) LTD, a
private company with limited liability duly incorporated in accordance with the
company laws of the Republic of South Africa, with its registered office situated at
the Zomerlust Estate, Berg River Boulevard, Paarl, Western Cape and its principal
place of business situated at 20 Fountain Street, Brackenfell, Western Cape.
7. The fourth applicant is WEST COAST MIRACLES (PTY) LTD, a private
company with limited liability duly incorporated in accordance with the company
laws of the Republic of South Africa, with its registered office situated at the
Tygerforum B, 53 Willie van Schoor Drive, Tyger Valley, Bellville, Western Cape.
8. The respondent is the SALDANHA BAY MUNICIPALITY, a municipality
established in terms of section 12 of the Local Government: Municipal Structures
Act, 1998, with its principal administrative office at the office of the Municipal
Manager, 12 Main Road, Vredenburg, Western Cape.
4
The purpose of this application
9. This is an application for leave to appeal against the whole of the judgement and the
order (including the order as to costs) dated 30 November 2012 of the Honourable
Acting Justice of Appeal Erasmus (the Honourable Justices of Appeal Cloete and
Tshiqi and Acting Justices of Appeal Swain and Mbha concurring) in the Supreme
Court of Appeal (“the SCA”). A copy of the judgment, including the order, is
annexed hereto, marked “HP1” (“the SCA judgment”).
10. The applicants were the respondents in the Supreme Court of Appeal, and the
respondent was the appellant, having appealed against the judgement and order dated
6 June 2011 of the Honourable Acting Justice Cloete in the Western Cape High
Court, Cape Town (“the High Court”). A copy of that judgment is annexed, marked
“HP2” (“the High Court judgment”).
11. The applicants contend that the SCA should have dismissed the respondent’s appeal,
with costs. In particular and with respect, it is submitted that the SCA failed as a
result of a fundamental misdirection on its part to address the crucial question of the
applicants’ constitutional entitlement to an accounting from the respondent, in respect
of overpayments which had been demanded from the applicants by the respondent in
respect of development contribution levies in terms of section 42(1) and (2) of the
Land Use Planning Ordinance 15 of 1985 (Cape) (“LUPO”). The applicants had
been obliged to make payments, under protest, in a total amount of several million 5
rand in order to enable transfer of erven in their various developments to proceed. It
was clear from the papers in the application that on any basis over a period of time
the respondent had extracted payments from the applicants which had been calculated
by the respondent upon an irregular basis. This aspect of the matter raised important
constitutional issues, relating to in particular a local authority’s constitutional
obligations of accountability and transparency. Regrettably this aspect of the matter
was effectively ignored by the SCA. The issue was adverted to in a single paragraph
of the judgment, with the SCA (for no good reason) concluding that it was not
required to address what was one of the core questions in the matter.
Condonation
12. As the SCA delivered its judgment on 30 November 2012, the applicants had, in
terms of Rule 19(2), fifteen court days within which to make application for leave to
appeal to this Court. The application should accordingly have been instituted by 24
December 2012.
13. The period leading up to the December holiday period was very busy, and the
applicants did not have the opportunity of discussing the outcome of the appeal in
detail with counsel prior to the latter (and the applicants’ representatives) going on
holiday. Senior counsel only returned to chambers on 17 January 2013, and the
matter was taken up again at that stage. After counsel was able to consider the matter
and thereafter furnish advice, the applicants decided to institute the present 6
application, and counsel were instructed accordingly.
14. I have been advised that condonation will be granted if the interests of justice will be
served thereby. The applicants contend that this is indeed the case. The issues for
determination in this matter are constitutional in nature, and will probably arise more
and more frequently in the course of interactions between developers and local
authorities. It is respectfully submitted that the applicants enjoy reasonable prospects
of success in the appeal. In this regard, the applicants point to the careful treatment
by the High Court of the important constitutional issue of the nature and extent of the
respondent’s duty to account to the applicants, and the unfortunate and cursory
manner in which the SCA saw fit to deal with this question. The respondent will not
be prejudiced by the failure to adhere to the prescribed time period, as the application
will only be some 25 days late, most of which days fell over the holiday period when,
I believe, the respondent and its representatives would also have taken some rest. As
will be clear from what is set out below, the applicants have not withheld any
disputed payments from the respondent, and they have no intention of doing so.
15. In these circumstances, the applicants apologise for the delay, and request that
condonation be granted and that this application be entertained.
Background
16. The High Court and the SCA judgments set out the relevant facts in this matter, and it 7
is not necessary to repeat such material in this affidavit in any detail.
17. “Capital contributions” is a commonly used description for the sums of money
payable in terms of conditions imposed in terms of section 42(2) of LUPO, which
sum or sums are determined to cater for the requirements resulting from the approval
of development applications in respect of the provision of necessary services or
amenities to the land concerned. The contributions are levied in terms of a tariff
calculated and adopted by a local authority, and are payable upon the grant of rates
clearance applications made in respect of the individual erven comprising the relevant
township development.
18. Each of the applicants has, over the last decade, successfully applied to the
respondent in terms of LUPO for the rezoning or subdivision (or, in some instances,
both rezoning and subdivision) of land for development purposes. The grant of such
applications gave rise to the creation of certain land use rights entitling the applicants
to develop the land to which such applications pertained, subject, inter alia, to the
payment of capital contributions.
19. As pointed out in the judgments, three resolutions by the respondent determining a
tariff for the levying of capital contributions are especially relevant to the application,
namely:
19.1. R55/9-97 dated 23 September 1997, relating to what is referred to hereafter 8
as the old tariff;
19.2. R35/6-07 dated 26 June 2007, relating to what is referred to hereafter as the
new tariff; and
19.3. R43/12-07 dated 4 December 2007, relating also the new tariff. This
resolution was rescinded on 2 February 2010, by way of resolution R105/1-
10.
The relief sought in the High Court
20. In the notice of motion the applicants sought, inter alia, the following relief:
20.1. an order directing the respondent to, within a period of 3 (three) months of
the date of an order being granted in the application, account to the
applicants in respect of the sums overpaid by the applicants in respect of
capital contributions unlawfully levied by the respondent in accordance with
the respondent’s resolution R43/12-07 dated 4 December 2007;
20.2. an order declaring that the tariff for the calculation of capital contributions as
set out in resolution R43/12-07, read with resolution R35/6-07 dated 26 June
2007, was of no force and effect;
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20.3. in the alternative to paragraph 20.2 above, an order:
20.3.1. condoning the applicants’ non-compliance with the 180-day period
prescribed in section 7(1) of the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”) for the institution of review
proceedings in respect of the relief sought in paragraph 20.3.2
below;
20.3.2. reviewing and setting aside resolution R35/6-07; and
20.3.3. declaring that the tariff for the calculation of capital contributions as
set out in resolution R43/12-07, read with resolution R35/6-07, is of
no force and effect.
21. Certain interdictory relief sought by the applicants pending the resolution of the
matter was not proceeded with, and is not of relevance in these proceedings. The
applicants applied, at the hearing of the application in the High Court, for an
amendment to the notice of motion to cater for alternative declaratory relief in respect
of resolution R35/6-07, pursuant to the principle of legality, on the basis that the
respondent’s determination of the tariff set out in such resolution did not constitute
administrative action as contemplated in PAJA. Ultimately, the matter was decided
in the High Court on the basis of the applicants’ claims in 20.1 (“the first claim”) and
20.2 above (“the second claim”). It is not necessary to deal with the further, 10
alternative claims.
22. The High Court granted the applicants’ first and second claims.
The land use applications and approvals
23. The crux of the dispute between the parties was that, despite the revocation of
resolution R43/12-07, the respondent continued to levy contributions in accordance
with the tariff set out therein, both in respect of development approvals granted
before 1 July 2007 (“the old approvals”), and approvals granted thereafter (“the new
approvals”), and unlawfully extracted payment in accordance with such tariff from
the applicants. The date of 1 July 2007 is of significance, because it was with effect
from that date that the respondent sought payment of capital contributions calculated
in accordance with the so-called new tariff which formed the subject of R35 of 26
June 2007. It did so in respect of both the new and the old approvals, the latter being,
inter alia, development approvals already granted at that date and which had
incorporated a condition that capital contributions were to be paid in accordance with
the old tariff established in terms of R55 of 23 September 1997.
24. As can be seen from the judgments, eight development approvals granted by the
respondent from time to time were raised in the papers. Four of these development
approvals were old approvals granted prior to 1 July 2007 and containing a condition
in terms of section 42(1) of LUPO that development contributions were payable in 11
terms of the then existing tariff, i.e. R55. The remaining four approvals were new
approvals granted after 1 July 2007, and each such new approval contained a section
42(1) condition that the development contributions were to be levied in terms of the
new tariff, i.e. R35.
25. Two discrete aspects of the applicants’ case bear emphasising. Firstly, the applicants
contended that the new tariff was subsequently rescinded by R105 of 2 February
2010 and that as a result thereof all capital contributions fell to be calculated in
accordance with the old tariff, irrespective of whether or not conditions of the
development approval in question had incorporated the old or the new tariff.
Secondly, if (as the respondent contended) the subsequent rescission of the resolution
adopting the new tariff did not affect the incorporation of such tariff as a condition of
development approval in terms of section 42(1) of LUPO, this did not entitle the
respondent to apply the new tariff to the old approvals which had been granted on the
basis of the old tariff.
The duty to account – the first claim
26. As pointed out, the applicants contended that even if the new tariff continues to be of
application to the new development approvals granted after 1 July 2007 which
incorporated the new tariff, they are nonetheless entitled to an accounting inasmuch
as the respondent from time to time demanded (as a pre-condition for granting
clearance certificates enabling transfer of erven to take place) payment of capital
contributions calculated on the new tariff in relation to erven forming part of the old 12
approvals, notwithstanding that the conditions of development approval had
incorporated the old and not the new tariff for the calculation of capital contributions.
27. When considering the adoption of the new tariff, the respondent equivocated between
making the new regime of capital contributions applicable across the board (i.e. old
and new approvals), alternatively only to development applications approved after 1
July 2007. However, when the new tariff was finally adopted, it was clear from the
resolution in question (R43) that such new tariff was to be applicable across the
board, although a limited discount of 25% was granted for a one year period, in
respect of the old approvals where the old tariff had hitherto been of application.
28. In the applicants’ papers it was stated that, in conformity with the respondent’s
formally resolved intention that the new tariff was to be applied across the board, the
respondent had unlawfully proceeded to apply the new tariff to the pre-1 July 2007
development approvals and had compelled payment of capital contributions by the
applicants on this basis. The respondent’s response to the applicants’ contention was
strikingly evasive. The then municipal manager vaguely denied that “as a general
principle, respondent’s officials have ignored the conditions of approval imposed
upon the applications approved in terms of GLJ5-7” (i.e. the old approvals). He
went on to state as follows: “Even if it should be found that, in certain instances,
Respondent’s officials ignored the conditions of approval imposed upon any of the
Applicants, or that amounts were paid in excess of those which an Applicant was
obliged to pay, it does not follow that the Applicants are entitled to the relief set out 13
in their Notice of Motion, and in particular the relief claimed in prayer (2). The
Respondent is advised, believes and avers that the Applicants would be required to
make out a case for the repayment of any such amounts”.
29. The respondent’s argument in this regard was further buttressed by the contention
that even if the applicants had overpaid, the respondent had over a period of years
failed to make the necessary annual escalation adjustment to the old tariff. The
municipal manager stated as follows: “In addition, rather than Applicants
overpaying it would appear from preliminary investigations which have been carried
out, that they benefitted unfairly over many years and may in fact owe a considerable
sum of money to the Respondent, for and in respect of underlevied s 42
contributions’.
30. In short, the position that appeared on papers was as follows: the council of the
respondent had passed a resolution to apply the new tariff to pre-1 July 2007
approvals which incorporated the old tariff, and it had proceeded to implement this
resolution and recover capital contributions from the applicants on this basis, under
protest from the applicants. When challenged as to the unlawfulness of this
approach, the respondent’s riposte was that on balance the applicants had suffered no
prejudice because so-called “preliminary investigations” indicated that there had
been under-recoveries when applying the old tariff because the respondent had failed
properly to apply the annual escalation formula.
14
31. In these circumstances, the applicants contend that there was a compelling case for
the respondent to complete its “preliminary investigations”, to satisfy itself whether
or not there had been under-recovery, to make the adjustments to those cases where it
had wrongly applied the new tariff, and to furnish the applicants with an account.
32. It is respectfully submitted that the High Court judgment at paragraphs 77 to 79
correctly and compellingly sets out the constitutional and statutory basis upon which
the respondent owed the applicants a duty to account.
33. The SCA was of the view that it was not necessary for it to deal with the question of
the account, being the first claim. This was so, the court held, because of its finding
that the applicants were not entitled to the relief sought in the second claim. It
confined itself to noting as follows on the issue, in paragraph 22 of the judgment (I do
not include the extract from Kempton Park/Tembisa Metropolitan Substructure v
Kelder 2000 (2) SA 980 (SCA) which occupies a substantial portion of this
paragraph):
“[22] The last issue concerns whether the appellant should be ordered to
account to the respondents. In view of the conclusions that I have reached, it is
not necessary for me to deal with this question. I would nevertheless say this.
The respondents did not allege that there was any contractual or statutory
obligation to the appellant to account to them. The court below ordered the
appellant to ‘account’ to the respondents on the basis of the ‘fiduciary 15
relationship’ between the parties. It relied on Kempton Park/Tembisa
Metropolitan Substructure v Kelder 2000 (2) SA 980 (SCA) in doing so. That
case is no authority for the proposition that a fiduciary duty exists between a
local authority and a property developer obliging the former to account to the
later for overpayments made.’
34. With great respect, the SCA misconceived the situation and failed to address an issue
of considerable constitutional importance, and which was in addition of great
practical consequence for the applicants, who had no way of knowing the nature and
extent of the alleged under-recoveries. The finding that the applicants were not
entitled to the relief in their second claim in no way disposed of the need to address
the claim for an account forming its first claim. With respect, the SCA’s approach in
this regard is only explicable on the basis that it failed to have due regard to the fact
that even if the new tariff continued to be of proper application to approvals granted
after 1 July 2007, it could under no circumstances have been of application to
approvals granted prior to that date, and that to the extent the respondent had
compelled payment in these circumstances on the basis of the new tariff, there clearly
had been an unlawful recovery.
35. In short, it is submitted that the applicants are entitled to a proper account from the
respondent, based upon a lawful tariff, in respect of what they should have paid and
what is owing to them as a result of any overpayment. As pointed out, the SCA,
wrongly (with respect), concluded that it was not called upon to decide the 16
applicants’ claim for an account. The applicants were entitled to have their claim in
this regard considered by the SCA, and the order of the High Court in respect of the
first claim ought to have been upheld.
36. I turn now to deal with the second claim.
The effect of the revocation of resolution R43/12-07 – the second claim
37. It was common cause that resolution R43/12-07 was revoked on 2 February 2010.
This was done pursuant to a previous review application instituted by the applicants
in the Western Cape High Court on 20 July 2009 under case number 14491/2009, in
which it had raised substantially the same difficulties in respect of the resolution as in
the present proceedings. The respondent has throughout contended that the
revocation of R43/12-07 did not have the effect of revoking the adoption of the new
tariff. It is this dispute which underlies the second claim.
38. That the rescission of resolution R43/12-07 necessarily implied the resolution of the
tariff set out in R35/6-07 (or, at the very least, was evidence of the respondent’s
intention to in fact rescind the tariff itself) is clear when one has regard to the history
of this matter. The first application for judicial review (instituted on 20 July 2009)
pertinently attacked the validity of the new tariff, and expressly contended that the
new tariff was invalid for want of compliance with statutory requirements relating to
the amendment of conditions, as well as a flawed approach to the determination of 17
capital contribution levies. The respondent, having initially opposed the proceedings,
chose – upon taking advice – not to deliver answering affidavits, but to withdraw its
opposition and to tender the applicants’ costs. The respondent thereafter rescinded
resolution R43/12-07 on 2 February 2010, which resolution was the culmination of a
process that commenced with resolution R35/6-07 on 26 June 2007.
39. The applicants thereafter proceeded on the basis that the respondent had accepted the
merits of their attack on the tariff, given that the respondent did not indicate any
contrary intention in subsequent correspondence between the parties, and that the
tariff to which resolution R43/12-07 referred had been itself rescinded with the
rescission of the resolution on 2 February 2010. In fact, the tone of subsequent
correspondence between the parties, forming part of the record, suggested that the
tariff to which resolution R43/12-07 referred was itself rescinded with the rescission
of the resolution on 2 February 2010.
40. In fact, that this was the position is borne out by the respondent’s actions in
determining an interim policy, reaffirming the 1997 policy for the calculation of
contributions (in paragraph (iv) of resolution R107/3-10, read with Annexure B
thereto), despite the previous attempts in 2007 to “adapt” the policy. If the
respondent was still entitled to use resolution R35/6-07, and the tariff referred to
therein, as the basis for the calculation of contributions in respect of new
developments, it is difficult to understand why the interim policy, with the guidelines
reflected therein, was necessary at all. 18
41. Furthermore, in terms of the interim policy an agreement was to be concluded
between the respondent and new applicants for development approvals. From the
second paragraph on page 2 of the agreement it is clear that the respondent itself
regarded the 2007 tariff for the calculation of contributions to have fallen away:
“AND WHEREAS the basis for the calculation of the capital contributions which the
Municipality has until recently used has fallen away as a result of Resolution R43/12-
07 having been revoked by the Council of the Municipality; AND WHEREAS the
Municipality is in the process of establishing a revised basis to calculate Capital
Contributions (which proceeds [sic] has not been completed);…”
42. Subsequent to the rescission of resolution R43/12-07, the applicants sought meetings
with the respondent in order to attempt to assist the respondent in dealing with the
matter as sensibly and expeditiously as possible, and there was considerable
interaction between the parties in this regard. After the revocation of R43/12-07,
months went by during which the respondent seemingly took no steps to determine a
method for the calculation of capital contributions to replace the method recently
rescinded, despite the applicants’ repeated requests that the necessary action be taken.
43. Moreover, the respondent’s officials simply ignored the terms of the relevant
conditions imposed by way of its approvals prior to 1 July 2007, and insisted upon
payment of contributions calculated in terms of the rescinded resolution R43/12-07, 19
despite the fact that the contributions payable in respect of the mentioned approvals
were to be calculated in terms of resolution R55/9-97, although only payable at the
stage of application for rates clearance. The respondent’s stance was clearly
unlawful. At the time, the applicants were in the process of preparing approximately
400 applications for rates clearance for submission to the respondent, in respect of the
approvals granted prior to 1 July 2007. The applicants should therefore have been
required to pay capital contributions in accordance with the old tariff set out in
resolution R55/9-97, and they had budgeted accordingly.
44. As regards the relevant conditions imposed in approvals after 1 July 2007, in terms of
which capital contributions were to be levied in accordance with the method set out in
the respondent’s resolution R35/6-07, the respondent ignored the fact that the
rescission of resolution R43/12-07 implied the rescission of the method set out in
R35/6-07. It insisted upon the levying of capital contributions in accordance with
R43/12-07 in respect of these new approvals, and refused to grant rates clearance in
respect of any erf prior to the payment of the relevant contribution as calculated by it.
45. Up to the date of the institution of the application on 2 July 2010 the respondent had
failed to give any reasons for the failure to deal with the matter in a satisfactory
manner, as requested by the applicants’ attorney on 22 February 2010. The result
was that the applicants had been required to pay capital contributions at a rate – so the
applicants contended - not legally determined; in fact, the respondent had insisted
upon payment of contributions in accordance with the rescinded resolution 20
R43/12/07.
46. The applicants were accordingly faced with a dilemma. On the one hand, the
respondent refused to give rates clearance and allow registration of transfer of erven
to take place without payment of the capital contributions. On the other hand, the
respondent was unlawfully levying capital contributions in accordance with a rate
which was no longer of any force and effect, and was unwilling or unable to come to
a reasonable interim arrangement pending the proper determination of the rate. This
resulted in the failure by the respondent to grant rates clearance applications at a rate
lawfully imposed, and in the hampering of the applicants’ efforts to properly manage
and finalise their developments within the respondent’s jurisdiction.
47. The respondent’s interim policy was of no use to the applicants, as it concerned only
fresh applications for development approvals; in other words, where approvals had
not been granted prior to resolution R105/2-10 of 2 February 2010. This is evident
from the wording of paragraph (v) of resolution R107/3-10, in terms of which the
interim policy was adopted.
48. In addition, and as already referred to above, the respondent had equivocated between
making the new regime of capital contributions applicable across the board,
alternatively, only to applications approved after 1 July 2007, as further resolutions
were taken during meetings in October 2007 and November 2007 before the issue
was finally determined on 4 December 2007. 21
48.1. It is evident from the resolution taken at a meeting on 9 October 2007
(resolution R50/8-07), that the respondent’s council was not amenable to
implementing the new tariff in accordance with the provisions of R35/6-07,
namely the blanket application thereof from 1 July 2007 onwards to all
development applications, whether approved prior to that date or not. In
direct conflict with the latter resolution, R50/8-07 provided that
contributions in respect of approvals granted and applications for approvals
submitted before 1 July 2007 remain as before, and that a follow-up report as
regards the new tariff be submitted to the council. In terms of the October
2007 resolution referred to above, therefore, the applicants were to pay
contributions in respect of these approvals in accordance with the 1997
tariff.
48.2. Yet again, on 13 November 2007 the respondent, by way of resolution
R37/11-07, resolved to have the issue “workshopped” for further input, and
referred it to the meeting to be held on 4 December 2007. Resolution R35/6-
07 (whatever its status was at that stage), and the tariff it referred to, was
accordingly not implemented by the respondent’s council prior to 4
December 2007, and should not have been implemented by its officials prior
to that date.
48.3. On 4 December 2007 the respondent resolved that the new scale for the 22
fixing of capital contributions set out in R35/06-07, in accordance with the
calculation method set out in an annexure to the municipal manager’s report,
would be made applicable to developments approved as from 1 July 2007.
The resolution was taken under number R43/12-07.
49. On 12 December 2007, the respondent notified developers (including the applicants)
that the capital contributions would increase in accordance with the new calculation
method, as resolved. The effect thereof was that the previous tariff (under R55/9-97)
was substituted and capital contributions payable by developers in the area – even in
respect of approvals granted prior to 1 July 2007 - were drastically increased. For
example, where an amount of R8 000.00 would previously have been payable under
the 1997 tariff, an amount of approximately R24 000.00 would be payable in terms of
the new tariff (representing an increase of 200%).
50. Given that the tariff set out under item R35/6-07 was effectively implemented only
by resolution R43/12-07, which was subsequently revoked, the respondent was not
entitled to demand the payment of contributions in accordance with such tariff. It is
evident from the events leading up to the making of resolution R43/12-07 that the
2007 tariff’s only right of existence flowed from that resolution. The tariff was only
implemented pursuant to R43/12-07. While R35/6-07 purported to implement the
tariff on 1 July 2007, its very essence was contradicted by follow-up resolutions in
October 2007 and November 2007. Even R43/12-07 did not refer to resolution
R35/6-07, but merely to the tariff set out in the item submitted to the council under 23
the reference number R35/6-07. It is, therefore, clear that the revocation of resolution
R43/12-07 meant that the tariff implemented in accordance with that resolution was
done away with.
51. The respondent throughout has adopted the position that the revocation of resolution
R43 did not amount to a revocation of the new tariff. Accepting, for present
purposes, that irrespective of whether or not there had been revocation of the new
tariff, the terms of such new tariff remained of application to those development
approvals post-1 July 2007 which had expressly incorporated the new tariff, the
applicants remained entitled to the declarator sought in their second claim. The
declarator addressed the question whether or not the new tariff had been rescinded.
The evidence unequivocally demonstrated that the revocation of resolution R43
served to rescind the new tariff, contrary to what was asserted by the respondent in
this regard.
52. Accordingly, the applicants were entitled to the orders sought in prayers 2 and 3 of
their notice of motion.
Conclusion
53. In all of these circumstances, the applicants respectfully submit that the SCA erred in
concluding that it was not called upon to decide whether or not the respondent was
under an obligation to account and in upholding the respondent’s appeal against the 24
judgment of the High Court.
54. The applicants contend that it would be in the interests of justice that leave to appeal
to this Court be granted. The applicants respectfully submit that they enjoy
reasonable prospects of success on appeal. The matter raises important constitutional
issues, in relation in particular to a local authority’s constitutional obligations to its
ratepayers, which issues were unfortunately not dealt with by the Supreme Court of
Appeal. The applicants accordingly respectfully seek an order in terms of the
accompanying notice of application.
HORST PSOTTA
Signed and sworn to at the address below on this day of JANUARY 2013, the deponent having acknowledged that he knows and understands the contents of this declaration, and having uttered the words: ‘I swear that the contents of this declaration are true, so help me God.’ I certify further that the provisions of Regulation 1258 of 21 July 1972
(as amended) have been complied with.
______
COMMISSIONER OF OATHS