IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC CASE NO: 104/2012
SCA CASE NO: 737/2011 In the application of:
MINISTER FOR LOCAL GOVERNMENT ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING, WESTERN CAPE
Applicant for admission as:
Intervening Party or Amicus Curiae
In the matter between
JACOBUS JOHANNES LIEBENBERG N.O.
AND 84 OTHERS
Applicants
And
BERGRIVIER MUNICIPALITY Respondent
AFFIDAVIT
I, the undersigned,
ANTON WILHELM BREDELL
hereby make oath and say:
1. I am the Minister for Local Government, Environmental Affairs and Development Planning in the Provincial Government of the Western Cape.
2. The facts contained herein are true and correct, and are within my personal knowledge unless I state otherwise or the context indicates the contrary.
3. This is an application for leave to intervene as a party, alternatively for admission as an amicus curiae, in this matter.
4. I do not take issue with any of the facts alleged by the parties. Neither do I wish to enter upon the question of whether the Municipality validly imposed the various rates which are in issue in this matter. The purpose of this application is to enable me to make submissions, on behalf of the Western Cape Provincial Government, as to the appropriate remedy should some or all of the rates be declared invalid.
5. This affidavit deals with the following matters:
5.1. First, I briefly describe my involvement in this matter up to this point;
5.2. Second, I describe the consequences of unlimited declarations of invalidity for the Berg River Municipality (“the Municipality”) and the Western Cape Province (“the Province”).
5.3. Third, I indicate why I submit that I meet the requirements to intervene as a party or, alternatively, to be admitted as an amicus curiae.
5.4. Fourth, I summarise the submissions I intend to make as to the appropriate remedy in the event of the rates being declared invalid.
II BACKGROUND
6. I became aware of a rates dispute between discontented farmers and the Municipality during 2007 when I was Executive Mayor of the Swartland Municipality and Regional Chairperson of the Democratic Alliance. The Swartland Municipality is adjacent to Berg River Municipality. However, that dispute related to complaints about consultation and the methodology the Municipality used to calculate rural rates. It was not based on the legal complaints that found the present application.
7. I became aware of the Western Cape High Court’s judgment after it was delivered on 25 August 2011. As leave to appeal had already been
granted by the time I was made aware of it, the officials in my Department did not deem it necessary to fully brief me on its implications for the Municipality or the Province. At that stage, I was made aware of the fact that the Municipality had appealed the decisions of that court pertaining to the declaration of invalidity with respect to some of the rates it had previously levied and was under the impression that there was no reason for me to intervene actively in this matter.
8. During late November 2011, the chairperson of the association representing the Applicants wrote to me and requested me to act as a mediator between the two parties. Given my oversight and monitoring functions for local government and the fact that I have important decision- making functions in this regard, I concluded that it would not be appropriate for me or any member of the Department to act as a mediator in this matter. I informed the Applicants and suggested that they identify a third party to undertake this task. I urged the Applicants to approach the Municipality in this regard.
9. Around this time, informal discussion began to take place in local government circles within the Western Cape about the potentially far- reaching consequences of the High Court’s judgment referred to above. I was made aware of this and therefore requested officials of my
Department to investigate the matter further. After considering the judgment in some detail they identified two issues of concern:
9.1. In addition to the rates they had contested in the High Court, the Applicants were also planning to contest their obligation to pay the rural rates which had been levied on them by the Municipality for the further three financial years: 2009/2010, 2010/2011 and 2011/2012.
9.2. If the judgment of the High Court was confirmed on appeal, this might result in severe consequences for the Municipality and its residents through the loss of vital past and future revenue.
However, the full extent of the effect of the judgment could only be assessed after a consultation with the Municipality.
10. Based on advice from my officials, I was of the opinion that I would have to get more information from the Municipality so as to determine the possible consequences if the High Court’s judgment was upheld on appeal in respect of the declarations of invalidity of various rates which had been levied.
11. At that stage, and even before having arranged a meeting with the Municipality as to the possible effect of the appeal being upheld, I was of
the view that it might be possible and was desirable for me to try and settle the matter between the parties.
12. To this end, during May 2012 officials from my Department met with representatives of the Applicants. Thereafter, in early June 2012, the Department’s official met with various officials from the Municipality as well as its attorney in this matter.
13. After these meetings it became apparent that there was no prospect of the dispute being resolved by agreement between the parties. It also became apparent that the outcome of the appeal could have a disastrous impact on the Municipality’s finances, and could also have implications for the Province. I address the details of this impact below.
14. I took advice on whether the Province could usefully intervene in the appeal before the Supreme Court of Appeal. I was advised that the Province could make submissions on the appropriate remedy should some or all of the rates in question be declared invalid. I applied to intervene as a party, alternatively to be admitted as amicus curiae in the Supreme Court of Appeal on 23 July 2012. In that application I advanced the same arguments that I make here.
15. The Applicants strenuously resisted my intervention. They denied that the judgment would have the consequences for either the Municipality or the Province that I had identified.
16. During the hearing before the Supreme Court of Appeal, the Applicants’
counsel conceded that he could have no objection to my admission as an amicus curiae. I was so admitted. In the event, the Supreme Court of Appeal rejected all the Applicants’ attacks on the various rates, and therefore did not address my submissions regarding the appropriate remedy.
17. When I became aware that the Applicants had appealed to the Constitutional Court, I deposed to an affidavit stating my interest and involvement in the matter, summarizing my submissions, and indicating that, should leave to appeal be granted, I would apply to be admitted as an amicus curiae. That affidavit was filed on 25 October 2012.
18. I did not indicate in that affidavit that I would also apply to intervene as a party. I have since been advised, for the reasons set out below, that I should apply first to intervene as a party and, in the alternative, to be admitted as an amicus curiae. I accordingly herby now do so.
19. In the following section I discuss the consequences for the Municipality and the Province should some or all of the Applicants’ attacks on the affected rates be upheld without a limitation on the effect of the declaration of invalidity.
III THE CONSEQUENCES OF UNLIMITED INVALIDITY
20. In order to facilitate understanding of the potential consequences of invalidating the rates in this matter, and my submissions on the appropriate remedy, it is necessary for me briefly to describe the wide range of attacks the Applicants have launched. The precise contours of the attacks have shifted slightly over the course of the litigation, but as I understand it, the Applicants currently attack the following rural rates/levies on the grounds set out:
20.1. In 2002/3:
20.1.1. The municipality issued a rural levy, not a rate, in violation of s 229(1) of the Constitution;
20.1.2. The notice under s 10G(7)(c)(i) of the Local Government Municipal Transition Act 209 of 1993 (“LGTA”) failed to specify the “general purport” of the rates;
20.2. In 2004/5:
20.2.1. The notice published under s 10G(7)(c)(i) of the LGTA failed to specify the “general purport” of the rates; and 20.2.2. The notice calling for objections under s 10G(7)(c) of the
LGTA was published after the date on which the rates came into effect
20.3. In 2005/6:
20.3.1. The Municipality failed to publish a notice in terms of s 10G(7)(c)(iv) of the LGTA specifying that objections could be lodged.
20.4. In 2006/7 the Municipality:
20.4.1. Relied on the LGTA instead of Local Government:
Municipal Property Rates Act 6 of 2004 (“the Property Rates Act”);
20.4.2. Assuming the LGTA applied, failed to publish a notice in terms of s 10G(7)(c)(iv) of the LGTA specifying that objections could be lodged;
20.4.3. Published a notice under s 22 of the Local Government:
Municipal Finance Management Act 56 of 2003 (“MFMA”) that failed to specify the “general purport” of the rates; and
20.4.4. Did not promulgate the rates in the Provincial Gazette as required by s 14(2) of the Property Rates Act.
20.5. In 2007/8 the Municipality:
20.5.1. Relied on the LGTA instead of Property Rates Act;
20.5.2. Assuming the LGTA applied, failed to publish a notice in terms of s 10G(7)(c)(iv) of the LGTA specifying that objections could be lodged;
20.5.3. Published a notice under s 22 of the MFMA that failed to specify the “general purport” of the rates; and
20.5.4. Did not promulgate the rates in the Provincial Gazette as required by s 14(2) of the Property Rates Act
20.6. In 2008/9 the Municipality:
20.6.1. Relied on LGTA instead of Property Rates Act;
20.6.2. Assuming the LGTA applied, failed to publish a notice in terms of s 10G(7)(c)(iv) of the LGTA specifying that objections could be lodged; and
20.6.3. Published a notice under s 22 of the MFMA that failed to specify the “general purport” of the rates.
21. In what follows, I deal with the consequences should some or all of these attacks be successful and the orders of invalidity not be limited. I first
describe the direct consequences for the Municipality, and then explain the knock-on effects for the Province.
The consequences for the Municipality
22. There will be two consequences of an unlimited declaration of invalidity for the Municipality.
23. First, it will not be able to collect the outstanding rates from the Appellants and any other ratepayers with outstanding rates for the years in question.
24. There was some debate in the Supreme Court of Appeal about the total amount of outstanding rates for the years in question. I submit that the precise amount is not particularly relevant to determining the interest of justice for the purposes of s 172(1)(b) and the precise amount will in any event depend on which years’ rates are found to be invalid There is no debate between the parties that there are outstanding rates amounting to at least several million Rand. I was previously informed by the Municipality’s Financial Officer, Mr Jacobus Van Niekerk that if the High Court’s judgment was upheld, the Municipality would be unable to recover approximately R5.7 million in respect of outstanding rates.
25. Second, all those ratepayers who had already paid their rates would either have a claim for unjust enrichment or would be entitled to set-off the rates they had already paid against any future rates which may be levied.
26. This would plainly have a considerable impact on the Municipality’s finances. A large portion of its income base for up to six years would have to be repaid, or the equivalent in future income would be wiped out. On average, rates make up roughly 20% of the Municipality’s income. If, for example, the promulgation challenge to three years is upheld, the Municipality will be liable to repay (or will lose out on) 60% of a year’s income, or approximately R66 million.
27. By the very nature of government, that money has already been spent on services, infrastructure or other payments. The Municipality would be unable to satisfy a judgment of that size. It would almost certainly have to cancel any planned or on-going infrastructure projects and reduce or cancel services that it currently provides to its residents. It would also have to raise money to cover the essential shortfall either by increasing rates in the future or, as I discuss below, relying on the Province.
28. The impact may well be devastating, as the Municipality would be unable to perform its statutory and constitutional duties. It is important to stress that the burden of unlimited invalidity will not be felt by the councilors or
officials who made the administrative error; it will be felt by all of the residents of Bergrivier.
29. The benefit, on the other hand, will be enjoyed by the Applicants and others who have not paid the rates they owe, and by others who successfully reclaim the rates which they have paid for the services which they have received.
30. Of course, there is no certainty that an unjust enrichment claim would be launched, or that it would be successful. But I submit that there is reason to believe that a claim may be brought and may be successful:
30.1. This Court has recognized that where taxes have been paid based on a law that is subsequently set aside, taxpayers would ordinarily have an unjustified enrichment claim against the government. In National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) this Court held that an interim interdict against the implementation of electronic road tolls in Gauteng had been properly granted. One of the reasons was that implementation would not cause motorists any irreparable harm.
Moseneke DCJ wrote: “Should the decision to impose toll on the roads be set aside by a court, I know no reason why the affected motorists would not have an enrichment claim to recover toll so
paid to SANRAL” (para 54). This dictum, at the very least, strongly suggests that ratepayers would have a similar claim against the Municipality for rates they had paid that are subsequently declared invalid.
30.2. There is, secondly, a good argument that, despite the passage of some years, the ratepayers’ claims would not have prescribed.
This Court held in Njongi v Member of the Executive Council, Department of Welfare, Eastern Cape [2008] ZACC 4; 2008 (6) BCLR 571 (CC); 2008 (4) SA 237 (CC) that for claims flowing from an invalid administrative act, prescription only begins to run on the date the administrative act is declared invalid. The same would seem to apply here: prescription on the claim for unjustified enrichment would only run from the date the rates were set aside.
30.3. Finally, recent developments have made it far more viable for ratepayers to pool their resources to challenge the rates. In Trustees for the Time Being for the Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others [2012]
ZASCA 182 the Supreme Court of Appeal held that it is possible to bring class action claims in any type of civil action, not merely constitutional claims (para 21). This would include unjustified
enrichment claims and would make it significantly easier for ratepayers to reclaim rates that were not due.
31. I do not contend that an unjustified enrichment class action would necessarily succeed, but the risk of large unjustified enrichment claims is real, and I submit that it is relevant to the determination of the appropriate remedy.
32. I have already indicated that the Applicants have debated the accuracy of the figures I have supplied. I submit that the precise figures are not important, and are in any event impossible to determine at this stage, especially with regard to possible future unjustified enrichment claims. But even the Applicants cannot deny that there will be a substantial financial impact, although its exact size is at this stage still uncertain.
33. In sum, unlimited invalidity would mean that the Municipality would: (a) be unable to recover any outstanding rates (approximately R5.7 million); and (b) face the risk of a massive unjustified enrichment claim, or that future rate payments would be set off against past improper payments (approximately 20% of annual revenue for each year declared invalid).
That would have serious consequences beyond Bergivier’s borders.
The Province’s Interest
34. The Provincial Government has an interest in this matter in three respects.
35. First, it has constitutional and statutory obligations to oversee the performance of municipalities. The following constitutional provisions are particularly relevant:
35.1. Section 154(1) imposes an obligation on the provincial government to “support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.”
35.2. In terms of s 155(6)(a), the Province must “by legislative and other means … provide for the monitoring and support of local government in the province”.
35.3. Section 155(7) affords the Province the “legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5”.
36. In addition to these general powers and responsibilities, under s 139 of the Constitution, the Province has the power to intervene where a municipality
“cannot or does not fulfil an executive obligation in terms of the Constitution or legislation”.
37. These provisions demonstrate that the Provincial Government has a direct and substantial interest in ensuring that municipalities can and do carry out their obligations, including the core obligation to provide services to their residents. Unlimited invalidity would threaten the ability of Bergrivier to fulfill its executive obligations. As the Minister responsible for local government, I have an obvious interest in this matter.
38. Second, if the Municipality has inadequate funds to carry out its obligations, the Provincial Government may have to be the funder of last resort in order to ensure that this is done. In terms of s 139 (1)(b), a provincial government may have to “assum[e] responsibility for the relevant obligation in that municipality” in order to maintain minimum standards, prevent action that is prejudicial to other municipalities or the province.
39. A large unjustified enrichment claim that effectively “bankrupted” the Municipality might well compel the Province to step in under section 139 and assume not only management, but also financial responsibility for the obligations of the municipality. An unlimited declaration of invalidity could, therefore, bear directly on the financial interests of the Provincial Government itself.
40. Third, this case raises questions which go beyond Bergrivier Municipality.
As the differing findings of the High Court and the Supreme Court of Appeal attest, the transition from the transitional LGTA to the MFMA was extremely complicated. The current regulation of municipal finances – including the levying of rates – remains a complex process. Regrettably, but as a matter of fact, errors of administration have occurred and may occur in the future. If the inevitable consequence of bona fide mistakes is that a municipality is not entitled to compel property-owners to pay the rates which are necessary for the provision of services, the consequences are likely to be very far-reaching. Those consequences will be even more severe if residents, who paid their rates in good faith and in fulfillment of their duties as citizens, are entitled to demand that they be repaid.
41. I am aware that the outcome of this litigation is being closely watched in local government circles. There is a fear that it will encourage a wave of rates litigation that will affect municipalities across the country. That litigation will only occur, however, if the claimants believe they will get a remedy that will afford them financial relief.
42. The recent decision of the Supreme Court of Appeal in South African Property Owners Association v Council of the City of Johannesburg Metropolitan Municipality and Others [2012] ZASCA 157 is demonstrative.
The City of Johannesburg failed to follow the proper procedure in passing
rates on business properties for the 2009/10 year. The Supreme Court of Appeal declared that the City had not complied with its statutory obligations. But it did not declare the rates invalid because of the unpredictable knock-on effects it would have for the City’s budget and the impact it might have on residents. If this Court does not adopt a similarly nuanced approach in this case, it may give rise to a fresh wave of litigation over technical defects in the rating process.
IV INTERVENTION AS PARTY OR AMICUS CURIAE
43. I am applying to intervene either as a party or as an amicus curiae. I have been advised that this is advisable based on this Court’s judgment in National Treasury and Others v Opposition to Urban Tolling Alliance. The Court refused to admit the Democratic Alliance as an amicus curiae in part because the nature of its interest and its strong support for the respondents made it “inappropriate to seek admission as an amicus rather than as an intervening party.” (Para 15).
44. I do not seek the additional rights or obligations that attend to an intervening party rather than an amicus curiae. I seek only to bring certain facts to this Court’s attention and make legal submissions. However, I have a direct interest in this matter and do not wish to fall foul of this
Court’s dictum in National Treasury. I therefore apply for leave to intervene as a party first, and as an amicus curiae in the alternative.
Intervening Party
45. I am advised that intervention as a party is dealt with in rule 8, which permits application for intervention at “any stage of the proceedings” on notice to all parties, and prescribes no further procedural requirements.
46. I am advised that, in order to be granted leave to intervene, I must show:
(a) that I have a direct and substantial interest in the case; and (b) that it is in the interests of justice to permit me to intervene.
47. I submit that I have demonstrated a direct and substantial interest. I have a constitutional responsibility to support local government and ensure that they effectively perform their functions. As I have demonstrated, the remedy in this case could have serious knock-on effects for Bergivier and other municipalities in the Western Cape. The Province also acts as the funder of last resort for municipalities. If the Municipality is rendered unable to provide services, the Province will have to step in to support it.
Together, these establish my direct and substantial interest in the case.
48. I submit that it is also in the interests of justice for me to intervene. I make new submissions that are not advanced by the Municipality. I was
involved in the Supreme Court of Appeal where I was admitted as an amicus curiae.
49. I therefore submit that I should be entitled to intervene as a party in this matter.
Amicus curiae
50. If my application for intervention is unsuccessful, I apply in the alternative to be admitted as an amicus curiae in terms of rule 10. Rule 10(1) requires me to write to the parties to request their consent to my intervention.
51. The Applicants have already consented to my admission in paragraph 62 of their founding affidavit in support of their application for leave to appeal to this Court. On 29 January 2013 the State attorney wrote on my behalf to the attorneys for the Municipality, requesting their client’s consent. A copy of that letter is attached as AWB1. .
52. I submit that I clearly have the interest in the proceedings required of an amicus curiae for the same reasons I have given to support my application for leave to intervene as a party.
53. I now turn to summarise the submissions I will wish to make to this Court, whether as a party or an amicus.
V SUBMISSIONS
54. If I am permitted to intervene, or admitted as an amicus curiae, I intend to make the following submissions on behalf of the Provincial Government.
55. Firstly, when this court considers whether the imposition of rates was invalid, it decides “a constitutional matter” as contemplated in section 172(1) of the Constitution. The exercise of all public power must comply with the Constitution. What would have been ultra vires under the common law by reason of a functionary exceeding a statutory power is invalid by virtue of the doctrine of legality under the Constitution. The question whether an organ of state acted intra or ultra vires is a constitutional matter.
56. In addition, the Municipality’s power to impose rates is sourced directly in s 229 of the Constitution. Any impropriety in exercising that power is a constitutional matter that triggers s 172.
57. This has two consequences: (a) if the rates were unconstitutionally imposed, this Court is obliged to declare those rates invalid; and (b) this Court has the power under s 172(1)(b) to make “any order that is just and equitable” following that declaration of invalidity. The orders this Court may make under s 172(1)(b) include orders limiting the retrospective effect of an order or suspending the declaration of invalidity.
58. Secondly, the following factors are relevant to determining what is “just and equitable” in the circumstances:
58.1. All but one of the complaints against the rates (the constitutional challenge to the 2002/3 rates) are technical and procedural in nature. Many flowed from an understandable misunderstanding of the complicated transition between the LGTA and the MFMA.
Others flowed from administrative oversight.
58.2. On the record, none of the Appellants, nor any other resident of the Municipality, was negatively affected by these technical flaws.
Indeed, the complaints the Appellants now raise do not reflect their true objections to the rates. Their true complaint is that the rates were unfair to them, because they do not receive the benefit of all of the services which the Municipality provides, as they farm on rural areas. Yet that complaint is not before this Court.
58.3. I submit that the Applicants have a duty, as citizens, to pay the rates imposed by the Municipality. If they believed the rates were unlawful, the proper course was to challenge them when they were imposed. Instead, the Applicants resorted to self-help and simply refused to pay rates that were due. This Court should not afford any protection to that type of behavior.
58.4. The rates which were paid during the course of the intervening ten years will inevitably have been spent by the Municipality in giving effect to its constitutional and statutory obligations to its residents, both rural and urban, and including the Appellants themselves.
They have been budgeted for in the past and formed the foundation for the Municipality’s budgets in the following years. Unlimited declarations of invalidity will have a serious effect on the Municipality’s financial planning. It will call into question spending that has already occurred or been committed, and jeopardize current and future plans.
58.5. An unlimited declaration of invalidity will raise the serious risk that other ratepayers who have already paid their rates will demand repayment of those rates under the law of unjustified enrichment, or will set off their claims against the payment of future rates. While the precise extent of such a claim is uncertain (and will depend on which rates are found invalid), there is a real risk that it will have
severe financial consequences for the Municipality and possibly the Province. It will threaten the Municipality’s ability to provide for the services it is constitutionally obligated to provide.
58.6. Ultimately, it is the residents (and not office-bearers and officials who made the errors) who will bear the burden of any errors which have been made. They will suffer either through a decline in services or infrastructure, or through an increase in future rates to cover the shortfall. In effect, future residents of the Municipality will be required to subsidize the financial windfall enjoyed by the Appellants and others like them.
59. Thirdly, I wish to make submissions as to what is the just and equitable remedy in light of these factors. In the Supreme Court of Appeal, counsel submitted, on my behalf, that the challenges to the various rates could be divided into procedural and substantive challenges. Counsel submitted that with respect to rates that may be found to be invalid for procedural reasons, the order of invalidity should be suspended to allow the Municipality to remedy the procedural defect. With regard to the substantive constitutional challenge to the 2002/3 rates, counsel argued that the order of invalidity should have no retrospective effect.
60. During the argument in the Supreme Court of Appeal, it became apparent that the distinction is not truly between substantive and procedural
challenges, but between those flaws that are remediable and those that are irremediable.
61. The vast majority of the challenges are irremediable. The constitutional attack on the 2002/3 rates and all the challenges based on failure to give notice or giving improper notice cannot be remedied through future conduct by the Municipality. It would not achieve the purpose of the legislation to require the Municipality at this stage to post a notice stating the general purport of the rates or informing residents that objections may be lodged. The rates have been passed and the year in which they are due is long gone. There is no longer any possibility for residents to act in accordance with those notices. An order of suspension would serve no purpose.
62. I submit that the appropriate remedy for the irremediable challenges is an order limiting the retrospective effect of the declaration of invalidity. I am advised that this is a common order in cases such as this where retrospective effect will have serious negative practical consequences.
The result of a limiting the retrospective effect of the order will be that all those with outstanding rates will have to pay them, and nobody who had paid their rates will be able to reclaim them. This is because, when the rates became due – whether in 2003 or 2005 or 2006 – the rates were valid. The obligation, therefore, existed at the time and is enforceable
now. The rates will not be void ab initio but void only from the date of the order of invalidity.
63. It would be possible to craft the order limiting retrospectivity to afford relief to the Applicants. The order could apply to all cases that had not yet been finalized. Only the Applicants and other who had not yet paid rates would be afforded relief. Those who had already paid would be unable to reclaim what they had paid.
64. I am advised that this is a common order for the Court to make. However, I submit that in these circumstances it is highly inappropriate. The result would be that those who had flouted their constitutional duties as citizens to pay rates would benefit at the expense of those who had paid the rates that they owed. That outcome is not in the interests of justice. I therefore submit that the appropriate order is one that has no retrospective effect and therefore affords neither the Applicants, nor anybody in a similar position any relief.
65. The second type of challenge the Applicants make are the non- promulgation challenges to the 2006/7, 2007/8 and 2008/9 rates. These are remediable flaws. Unlike the issuing of notices prior to the adoption of rates, the act of promulgation is primarily formal; it is a technical requirement for the rates to become law, but it has no practical notice-
giving function as, in reality, members of the public do not read the Provincial Gazette. The failure to promulgate can, therefore, be remedied by suspending the order of invalidity and allowing the Municipality a period of time to promulgate the rates with retrospective effect.
66. While it is unusual to promulgate laws retrospectively, I am advised that this Court has previously made a similar order to avoid negative consequences in Kruger v President of the Republic of South Africa and Others [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC).
In that matter, the President had brought the incorrect sections of a piece of legislation into force. The Court declared his actions invalid, but gave him 30 days to promulgate the correct sections with retrospective effect. I submit that a similar order it appropriate in this case.
67. My fourth and final submission flows from the nature of the remedies I have proposed. If this Court upholds the promulgation challenge and makes the order of suspension I have proposed, but does not decide the other notice-based challenges to the 2006/7 – 2008/9 rates, there will still be uncertainty about the validity of those rates as the promulgation will not cure those flaws.
68. I therefore submit that this Court should decide the validity of all the challenges to the 2006/7 – 2008/9 rates. If it finds that both the notice-
based and the promulgation challenges are good, it should suspend the order of invalidity to permit promulgation and order that the declaration of invalidity will have no retrospective effect.
VI CONCLUSION
69. I submit that I have made out a case to intervene as a party, alternatively to be admitted as an amicus curiae. The submissions I have made regarding remedy are different from those made by the parties, relevant to the case and vital to protect the interests of the residents of Bergrivier, the Municipality and the Province.
70. I accordingly pray for an order in terms of the Notice of Motion.
ANTON WILHELM BREDELL
I certify that:
I. The Deponent acknowledged to me that:
A. He knows and understands the contents of this declaration;
B. He has no objection to taking the prescribed oath; and
C. He considers the prescribed oath to be binding on his conscience.
II. The Deponent thereafter uttered the words, “I swear that the contents of this declaration are true, so help me God.”
III. The Deponent signed this declaration in my presence on the day of January 2013.
