Case No: 104/2012 In the matter between:
JACOBUS JOHANNES LIEBENBERG N.O.
AND 86 OTHER PARTIES Applicants
and
BERGRIVIER MUNICIPALITY Respondent and
MINISTER FOR LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND
DEVELOPMENT PLANNING, WESTERN CAPE Amicus curiae
PRACTICE NOTE ON BEHALF OF THE RESPONDENT
1. This is an application for leave to appeal to this Court against the judgment of the Supreme Court of Appeal in case number 737/2011 handed down on 1 October 2012 dismissing an appeal by the applicants and upholding a cross-appeal by the respondent against the judgment and order of the Western Cape High Court, Cape Town in case
number 19570/10 handed down on 25 August 2011.
2. The issue that will be argued is whether the impositions of rural levies and property rates by the respondent during the financial years 2002/2003 to 2008/2009 were valid.
3. The portions of the record that have to be referred to for the determination of the matter are those passages and annexures to which specific reference is made in the parties’ heads of argument, and particularly the following:
- Vol 1 : notice of motion and founding affidavit - Vol 2 : CL8 p. 172
- Vol 3 : JVN9 p. 248; JVN12 p. 256; JVN14 p. 259; JVN17 p. 281 - Vol 4: JVN18 p. 282; JVN20 p. 284; JVN21 p. 291; JVN22 p. 302;
JVN23 p. 303; JVN24 p. 304; JVN25 p. 305; JVN26 p. 306; JVN27 p.
314; JVN29 to JVN41 pp. 316-354; answering affidavit pp357-399 - Vol 5: replying affidavit pp421-454
- Vol 6: Judgment of the High Court pp 503-552
- Vol 8: papers in the intervening party’s application for leave to intervene in the SCA pp. 635-730, Judgment of the Supreme Court of Appeal pp 731-753
4. It is estimated that the hearing will take one day.
5. Summary of the respondent's argument:
5.1 The respondent has a constitutional obligation to raise revenue, inter alia by imposing levies and rates on property within its area
of jurisdiction, in order to enable it to provide services to the local community as well as to ensure the development of the area under its jurisdiction.
5.2 The respondent contends that the conduct of the applicants constitutes unlawful self-help. The applicants never approached a court to adjudicate their dispute with the respondent. Instead, they simply refused to pay the rural levies and property rates.
This conduct has significantly impacted on the respondent’s ability to meet its constitutional and other statutory obligations.
5.3 The respondent contends that it has complied with all statutory prescripts in respect of its imposition of the rural levies and property rates in issue in this matter. In particular, the respondent contends that it has relied on section 10(G) of the Local Government Transition Act, No. 209 of 1993 (“the LGTA”). In this regard, the respondent contends that, on a proper construction of sections 88 and 89 of the Local Government: Municipal Property Rates Act, No. 6 of 2004, municipalities were permitted to rely on section 10(G) of the LGTA for the levying of property rates until 30 June 2011. Such a construction gives effect to the intention of the legislature, namely to assist municipalities with the implementation of the comprehensive rating regime which it introduced.
5.4 In the event that this Court should find that there had been instances of non-compliance with statutory prescripts on the part of the respondent, it is contended that the respondent had complied substantially with such prescripts in such a manner that the objects of the statutory instruments concerned had been
achieved and that the relevant impositions were not thereby rendered invalid.
6. The authorities to which particular reference will be made in argument:
1) Nokeng Tsa Taemane Local Municipality v Dinokeng Property Owners Association [2011] 2 All SA 46 (SCA)
2) Poswa v Member of the Executive Council for Economic Affairs, Environment and Tourism, Eastern Cape 2001 (3) SA 582 (SCA)
3) City of Cape Town and Another v Robertson and Another 2005 (2) SA 323 (CC)
4) Rates Action Group v City of Cape Town 2004 (5) SA 545 (C)
5) Kungwini Local Municipality v Silverlakes Homeowners Association and Another 2008 (6) SA 187 (SCA)
6) Pretoria City Council v Walker 1998 (2) SA 363 (CC)
7) African Christian Democratic Party v The Electoral
Commission and Others 2006 (3) SA 305 (CC)
J C HEUNIS SC
E F VAN HUYSSTEEN Respondent's counsel Chambers, Cape Town 22 February 2013
