MACHEKE RURAL COUNCIL v CILLIERS 1980 ZLR 145 (G)

Author: Trodat Zimbabwe

MACHEKE RURAL COUNCIL v CILLIERS 1980 ZLR 145 (G)

1980 ZLR p145

Flynote

Rural councils — taxes and rates levied by councils — whether council may be estopped from recovering tax or rate.

Headnote

Once a rural council has, in terms of the Rural Councils Act [Chapter 211], levied _H a tax it is its duty to enforce it, and it cannot be estopped from recovering it.

Authorities cited

City Council of Salisbury v Donner and Anor 1958 R & N 132? 1958 (2) SA 368 (SR)?

1980 ZLR p145

Pittman J

Halsbury, Laws of England, 4th edition, volume 16, paragraph 1596? 1980 South African Law

Journal, page 1?

Grindlays Bank Ltd v Louw and Anor 1979 RLR 189 (G.D.)? _A

Trotman and Anor v Edwick, 1950 (1) SA 376 (C)

Case information

C C Milton, for the applicant

R Jagger, for the respondent. _B

Judgment

Pittman J: On the 10th December, 1979, the applicant issued summons against the respondent for payment of $431,48, interest thereon at six per centum per annum from the 31st May, 1979, and costs. The respondent entered appearance, and the applicant then applied for summary judgment on an amended claim for $486,74, interest thereon at _C the rate of 11 per centum per annum from the 1st July, 1979, to date of payment, and costs.

[The learned Judge then set out the opposing affidavits, which disclosed the following facts. The respondent had owned a farm in the applicant _D council’s area, which he sold in 1978. In the course of arranging transfer his attorney asked the applicant how much respondent owed it by way of arrear unit tax, and was told that $134 was owing. He duly paid this sum on respondent’s behalf and received a “clearance certificate” from the applicant council certifying that no further rates or taxes were _E owed it by respondent. In fact the sum of $486,74 was still outstanding in arrear unit tax and interest. The respondent set up two defences to the applicant’s claim for this amount. Firstly, he maintained that the applicant was estopped from claiming it after having issued its “clearance certificate”, secondly, that the issue of the certificate had amounted to a _F negligent misstatement of fact. As to both defences, the respondent maintained that had he known at the time how much was owing, he would have been able to recover the amount from the then occupier of the farm.

[The learned Judge then continued:] _G

The defence based on estoppel clearly has no merit. As Mr Milton painted out, in Salisbury City Council v Donner & Anor., 1958 R  & N  132 at 137H? 1958 (2) SA 368 (SR) at 372B, MURRAY CJ, stated that “estoppel cannot be raised in matters concerned with the exercise of a statutory public duty”. One of the authorities cited by _H MURRAY CJ, was Halsbury, 3rd edition (1956), volume 15, paragraph 427, in which it was said:

“A party cannot by representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be

1980 ZLR p146

Pittman J

estoppel from denying that it has entered into a contract which it was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do? and the same principle applies to individuals. No person can by his conduct, A or otherwise, waive or renounce a right to perform a public duty, or estop himself from insisting that it is right to do so.”

This passage is repeated in identical terms in Halsbury, 4th edition (1976), volume 16, paragraph 1596. _B

Section 88 of the Rural Councils Act entitles a council to levy a tax not more than once in each financial year upon an owner of land in its non ­ designated area. It is common cause that the respondent is such an owner, and Mr Jagger conceded that were it not for the defences raised for the respondent, the amount claimed by the applicant would be payable _C by the respondent.

The important point is that once a council has levied a tax, it is its duty to enforce it because it has no power to allow the taxpayer to be excused from paying that tax, except in terms of section 106 of the Act, _D which authorizes it to write off any charges which have been in arrear for a period of not less than five years and which are deemed by it to be irrecoverable. It is clear that the estoppel raised in paragraph 14 of Mr Gollop’s affidavit is one by which it is sought to make the applicant refrain from doing what it is presently its duty to do. Such an estoppel is _E not enforceable by the Court, and will only become so if and when section 106 becomes applicable in three or four years’ time. It follows that the defence raised in paragraph 14 is invalid.

In my opinion, paragraphs 15 and 16 of Mr Gollop’s affidavit really _F embody only a single defence to the applicant’s claim for summary judgment. In these two paragraphs, it is in effect averred that, having made a negligent misstatement of fact which has caused the respondent pecuniary loss, the applicant is liable to compensate the respondent for such loss. The existence of such a cause of action is well­established in _G Roman­Dutch law. See South African Law Journal, volume 97, Part 1 (February, 1980), page 1. It is also well­established that an unliquidated claim in reconvention can be raised successfully as a reply to an application for summary judgment. See, for example, Grindlays Bank Ltd v Reon Louw, 1979 RLR 189 (GD). However, as was emphasized _H in Trotman & Anor v Edwick, 1950 (1) SA 376 (C), the amount of such a claim must exceed the amount of the applicant’s claim. The amount of the respondent’s claim has not been quantified in Mr Gollop’s affidavit, and it was not debated in argument. But I think it is impossible to

1980 ZLR p147

Pittman J

hold that it is as great or greater than the applicant’s admitted claim, because it must be at least $134 less than the latter. _A

I therefore conclude that the averments in Mr Gollop’s affidavit, even if established, will not found any valid defence to the applicant’s claim, and accordingly it is ordered:

That summary judgment with costs be and is hereby entered against _B the respondent in the sum of

$486,74, together with interest on such sum at the rate of 11 per centum per annum from 1st July, 1979, to date of payment.

Coghlan, Welsh & Guest, attorneys for the applicant. _C Gollop & Blank, attorneys for the respondent. _D