IN THE CONSTITUTIONAL COURT OF

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, .

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, , Western Cape.

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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, (“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.

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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