REPORTABLE

Case Number  :  399 / 2000

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

In the matter between

WEENEN TRANSITIONAL LOCAL COUNCIL                    Appellant

and

S J VAN DYK                                                                   Respondent

Composition of the Court :
Hefer AP,  Howie,  Olivier,
Farlam and Brand   JJA

Date of hearing :

4  March 2002

Date of delivery :

14 March 2002

SUMMARY

Local authority  -  Ordinance requiring four notices before rates become
due and payable -  failure to comply.

________________________________________________________________

J U D G M E N T
________________________________________________________________

OLIVIER   J A

[1] This appeal has its origin in an action instituted in the Weenen
Magistrate's Court by the appellant, a local council, against the
respondent, a property owner within the appellant's area of
jurisdiction and thus a ratepayer, for the payment of rates in respect
of the properties owned by the respondent, allegedly due and
payable on 30 January 1996.   The only defence relevant to the
appeal raised by the respondent was that the amounts claimed were
not due and payable because the appellant had not complied with the
provisions of s 166 of the Natal Local Authorities Ordinance, 1974
("the Ordinance").   This defence was upheld by the magistrate and,
on appeal to the Natal Provincial Division, also by that Court.   The
latter decision is reported in 2000 (3) SA 435 (N).   Leave to appeal to

this Court was granted by the Natal Provincial Division.
[2] It is common cause that the powers and duties of the appellant
and the rights and obligations of the respondent as ratepayer relevant
to the issues now under consideration are to be found in the
Ordinance, properly interpreted.
[3] The appellant is empowered by ss 148, 149 and 150 to assess
and levy, once in every financial year, upon all the immovable
property within the borough, a general rate, a water rate and a
sewerage rate.   The financial year ends on 30 June in every year.
[4] The procedure for collecting the assessed rates is laid down in
ss 105 and 166 of the Ordinance.   Section 105 (1) obliges the
appellant ('Every council shall …') by no later than 30 June of a given
financial year, to frame estimates of its revenue and expenditure for
the following financial year and to assess the general rate, water rate

and sewerage rate payable by the owner of immovable property in
the borough.
[5] The next step to be taken by the appellant is then  laid down in
s 105 (1A) which provides that, as soon as possible after the
estimates have been framed and the rates assessed as required by s
105 (1)
' … the council shall publish in a newspaper [published in the
Province and circulating in the area under the jurisdiction of the
appellant  -  see s (1) (1)] a notice containing an abstract of such
estimates and stating  -
(a)
the amounts at which such rates have been assessed,
and
(b)
that such estimates will be available for inspection at
the municipal office for a period specified in such
notice but not being less than seven days after the
publication of the said notice.'

[6] The next step is then  laid down in s 166.   It reads as follows :

'The general rate, water rate and sewerage rate shall
be assessed in accordance with section 105 (1) in
respect of every financial year and, after the
expiration of the period contemplated by section 105
(1A), the council shall publish in a newspaper a notice
once a week for two consecutive weeks at intervals of
not less than five days specifying the amounts at
which such rates have been so assessed  and the
final date in such financial year for the payment
thereof.' (My emphasis)

[7] Section 167  (1) then provides that
'The rates in respect of any financial year shall
become due and payable one month after the first
publication of the notice contemplated by section 166,
and shall be paid on or before the final date for their
payment as set forth in such notice …'

[8] Then follows s 172 (2), which provides as follows
'After the first publication of the notification referred to
in section 167 [i.e. the first publication of the notice
required by s 166], the collector [I e the Town
Treasurer  -  see s 172 (1)] shall give notice to the

owner of every rateable property, which notice shall
state the amount of rates owing in respect thereof and
the final date for payment and shall set out the
number and description of the property and the value
thereof as shown in the valuation roll.'

[9] Failure by a ratepayer to pay the assessed rates after the final
date for their payment attracts a penalty of 18% per annum   -   see
s 171.
[10] An analysis of the scheme of assessing, levying and collecting
rates, as sketched above, shows that the appellant was obliged to
issue four notices before it could claim payment of the rates :
(a)
a notice in terms of s 105 (1A) which must state the amounts
at which the rates have been assessed and allowing at least
seven days after the date of the said publication for inspection
of the estimates and assessment;  and

(b)
two notices in terms of s 166
(i)
the first of which must be given after the expiry of the
period of seven days mentioned in (a) above;

(ii)
the second notice must be published not less than five
days later, but in the week following upon the publication
of the first s 166 notice;
(iii)
both of which must specify the amounts at which the rates
have been assessed and
(iv)
both of which must specify the final date for the payment
thereof.   By virtue of the provisions of s 167 (1) the rates
become due and payable one month after the first
publication of the s 166 notice.

(c)
a notice to each ratepayer in terms of s 172 (2) given after
the publication of the first notice in terms of s 166, stating the
amount of rates payable by that ratepayer and the final date for
payment.

[11] In the present case the appellant caused to be published only
one notice, dated 23 June 1995, which read as follows:

WEENEN TRANSITIONAL COUNCIL
NOTICE

It is hereby notified in terms of Section 105 of
the Local Autnorities Ordinance, Natal (Ordi-
nance 25 of 1974) that Estimates for the1995/96
Financial year have been adopted by the Town
Council and an extract thereof is set out hereun-

der.

Expenditure                Income
Rates and
General Services     R1 319 418           R1 222 027
Estimated Deficit     R     97 391
Total                          R1 222 027           R1 222 027

Water Service           R    91 570            R  189 974
Estimated Surplus   R    98 304
Total                          R1 411 901          R1 411 901

A general rate of 1,7687 cents in the Rand on
Agricultural Land Valuation and 8.05 on Resi-
dential and Commercial Valuations has been
assessed

The final date for payment of these rates has
been fixed as the 30 January 1996.

The Estimates will lie open for inspection at the
office of the Town Clerk for a period of seven
days from the date of Publication hereof.

Published at Weenen this 23th day of June
1995.

A Botes
Chief Executive /
Town Clerk

[12] The crux of the appeal lies in the respondent's allegation,
unambiguously raised in the magistrates' court and in the court a quo,
that there had not been any compliance with the provisions of s 166
in that

(a)
The published notice itself expressly states that it is being given
in terms of s 105.   No mention of s 166 having been made, it
cannot be interpreted as a partial compliance with the
requirements of s 166.

(b)
Section 166 contemplates two notices, the first of which can
only be published after the seven day period envisaged by s
105 (1A).   The appellant alleges that the first publication in
terms of s 166 was given simultaneously with the publication of
the s 105 (1A) publication, more exactly in the sentence
included in the published notice reading
'The final date for payment of these rates has
been fixed as the 30th January 1996.'

The respondent avers that if compliance with the first notice in
terms of s 166 was intended, then such notice was premature
and invalid.

(c)
Section 166 requires two notices, at least five days apart.
Even if it is assumed that a first notice had validly been given in
the published notice, there was no publication of a second s
166 notice.   This was common cause.

[13] It seems to me that the correct approach to the objection that
the appellant had failed to comply with the requirements of s 166 of
the Ordinance is to follow a commonsense approach by asking the
question whether the steps taken by the local authority were effective
to bring about the exigibility of the claim measured against the
intention of the legislature as ascertained from the language, scope
and purpose of the enactment as a whole and the statutory
requirement in particular (see Nkisimane and Others v Santam
Insurance Co Ltd 1978 (2) SA 430 (A) at 434 A - B).   Legalistic
debates as to whether the enactment is peremptory (imperative,
absolute, mandatory, a categorical imperative) or merely directory;
whether 'shall' should be read as 'may';  whether strict as opposed to
substantial compliance is required;  whether delegated legislation
dealing with formal requirements are of legislative or administrative

nature, etc may be interesting, but seldom essential to the outcome of
a real case before the courts.   They tell us what the outcome of the
court's interpretation of the particular enactment is;  they cannot tell
us how to interpret.   These debates have a posteriori, not a priori
significance.   The approach described above, identified as ' ... a
trend in interpretation away from the strict legalistic to the substantive'
by Van Dijkhorst J in Ex parte Mothuloe (Law Society Transvaal,
Intervening) 1996 (4) SA 1131 (T) at 1138 D - E, seems to be the
correct one and does away with debates of secondary importance
only.
[14] It seems to be clear that the object of s 105 (1A) was to inform
all the ratepayers in the particular borough of the council's estimates
of its income and expenditure for the next financial year, and of the
amount of the assessed rates.   The estimates are to be made

available for inspection at the municipal office for a period of at least
seven days after the publication of the notice.   There can be no
doubt, as the court a quo rightly concluded, that where, upon
inspection of the estimates, ratepayers should discover that the
matters required by s 105 (2) to (6) to be taken into account in
arriving at the estimates have not properly been accounted for or that
provision was made in the estimates for expenditure which is not
authorised by the Ordinance, they would be entitled to approach a
court for relief by way of interdict or mandamus.   I am also of the
view that in appropriate cases the council's decision as regard
estimates and assessments can be taken on review.   The object of
the notice required by s 105 (1A) is clearly not to place the ratepayer
in mora or to demand payment, but to afford an opportunity to object
to the estimates and assessment.

[15] On the other hand, s 166 envisages a stage where the period
mentioned in s 105 (1A) [i e at least seven days after the publication
of the notice envisaged thereby] has elapsed.   It requires
specification of the amounts at which the rates have been assessed
and of the final date for payment thereof.   Clearly, s 166 serves a
purpose other than that of s 105 (1A).   It prepares the way for
collection of the amounts payable, and it fixes a date of mora.   The
rates become due and payable after the date of publication of the
first s 166 notice and that notice also fixes the final date of payment
(see s 167 (1).   The purpose of the second publication of the notice
required by s 166 is obviously to ensure maximum publicity.
[16] While one might have been able to debate the necessity and
importance of the second notice required by s 166 if there had been
due compliance in respect of the first notice, the question in the

matter before us is whether there was a valid first notice.   In my view,
the answer must be no.   The published notice purports, in its own
terms, to be a s 105 (1A) notice.   It does not now lie in the mouth of
the council to say that it is a s 166 notice.   If it was in truth intended
to be a s 166 notice, it was given prematurely.   It overlaps the period
during which the estimates and assessment were lying for inspection.
And, finally, it was not followed up by the second notice required by s
166.   The fact that a notice to individual ratepayers is required by s
172 (2) cannot detract from the necessity of the notifications required
by s 166  -  on the contrary, it emphasises the legislature's concern to
ensure that ratepayers are properly and optimally informed of their
obligations.   In any event, compliance with s 172 (2) had also not
been proved.

[17] In the result, I am of the view that there was no compliance with
the requirements of s 166 in the present matter.   The amounts
claimed by the appellant were not due and payable when the action
was instituted.   The claim was consequently rightly dismissed.

In the result, the appeal is dismissed with costs.

OLIVIER  JA
CONCURRING  :

HEFER  AP
HOWIE  JA
FARLAM  JA
BRAND  JA