DISTRIBUTABLE
(8)
Judgment
No S.C. 13\03
Civil
Appeal No 355\02
THE CITY
OF MUTARE v THE MUTARE RESIDENTS AND
RATEPAYERS ASSOCIATION
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, CHEDA JA & MALABA JA
HARARE
MARCH 24 & JUNE 5, 2003
T.
Biti,
for the appellant
R.M.
Fitches,
for the respondent
SANDURA
JA: In a judgment handed down on 25 September 2002, the High
Court declared that the owners rates, charges and levies
set by the
appellant for the year 2001 were of no force and effect. Aggrieved
by that decision, the appellant instituted this appeal.
The
factual background is as follows. On 10 and 17 November 2000 the
appellant (the Council) advertised its proposed increases
in
the owners rates, charges and levies for the year 2001 in two local
newspapers and called for objection, if any, to be lodged
on or
before 11 December 2000. Thereafter, the respondent (the
Association) submitted a petition signed by over 2 500 residents
objecting to the proposed increases. In addition, over 35 companies
objected to the increases.
After
the objections had been submitted, a special meeting of the Council
was called for 14 December 2000 to consider the objections.
The
notice which was sent to the councillors informing them of the
special meeting was accompanied by a summary of the objections
set
out in the Associations petition, and a statement to the effect
that the petition had been signed by more than 2 500 residents.
However, the booklet containing the signatures of the more than 2 500
residents did not accompany the notice, although it was later
circulated to the councillors at the meeting on 14 December 2000.
The
special meeting was attended by eleven of the seventeen councillors.
About six councillors spoke in favour of the confirmation
of the
proposed increases, and no councilor spoke against it. At the end
of the meeting the councillors resolved to confirm the
increases as
they were of the view that the objections which had been submitted
and considered at the meeting did not justify a reduction
of the
charges.
Aggrieved by
that decision, the Association filed a court application in the High
Court seeking an order nullifying the Councils
budget for the year
2001. That order was subsequently granted by the learned judge in
the court a
quo.
The Council has now appealed against that order.
The
learned judge granted the order sought by the Association because, in
his view, the Council had failed to comply with the provisions
of
subsections (3) and (4) of s. 219 of the Urban Councils Act [Chapter
29:15] (the Act). Those subsections, in relevant
part, read
as follows:-
(3) If
objections to the proposed tariffs, charges or deposits are
lodged -
by
thirty or more persons who are voters or who are users of the
service to which the tariff, charge or deposit relates; or
;
such
tariffs, charges or deposits shall be reconsidered by the council,
together with the objections so lodged, and they shall not
come into
operation unless the resolution is again passed by a majority of the
total membership of the council
The
notice to councillors of any meeting at which the proposed tariffs,
charges or deposits are to be reconsidered for the purposes
of
subsection (3) shall contain a copy of all objections lodged in
terms of subsection (3) unless all councillors have been previously
circulated with a copy of the objections.
Dealing
with subsection (3) the learned judge said:-
The
requirements of s 219(3) of the Act are also crystal clear. Where
the requisite number of objections to the proposed tariffs
and
charges have been lodged, the proposed tariffs and charges shall not
come into operation unless the resolution is passed by a
majority of
the total membership of the council. In order to ascertain whether
that test has been passed, a vote
must be taken. It is not sufficient for the respondent (the
Council) to say that the Council acts by consensus and seldom resorts
to votes. That may well be the case, and it obviously suffices, for
the vast majority of the resolutions that come before the Council.
However, the requirements of the Act must be strictly observed. S
219(3) requires that in the circumstances specified therein,
(the)
proposed tariffs and charges shall
not come into operation
unless the resolution has been passed by a majority of the total
membership of the Council. That means that a vote must be taken
and
the number of votes in favour of the resolution must be recorded.
If that is not done, it cannot be established that the resolution
was
passed in accordance with the requirements of s 219(3) of the Act.
That being the case, the proposed new tariffs and charges
cannot come
into operation.
In
my view, what the learned judge said would apply where there is
disagreement amongst the councillors present at the meeting.
In
that situation, a vote must be taken in order to determine whether a
majority of the total membership of the Council is in favour
of the
resolution.
However,
where there is no such disagreement the practical need for voting
does not exist. That was the position in the present
case. The
total membership of the Council was seventeen. Eleven of the
seventeen councillors attended the special meeting on
14 December
2000. According to the minutes of that meeting, six of the
councillors present spoke in favour of the confirmation
of the
increased levies and charges, and no councillor spoke against the
confirmation. No-one, therefore, dissented.
In
addition, the minutes of the meeting indicate that immediately before
the resolution was passed the following occurred:-
The
Executive Mayor requested the Deputy Mayor to summarise what
Council had agreed upon.
In response,
the Deputy Mayor commented that Council
had agreed to reaffirm its position on the 2001 budget
because the objections received did not warrant a review of the
charges. (emphasis added).
It
was then resolved by the Council that the 2001 budget be reaffirmed
and it was.
In
the circumstances, there can be no doubt that the resolution was
unanimously passed by the eleven councillors. As the decision
was a
unanimous one, there was no need for a vote. The resolution was,
therefore, passed by a majority of the total membership
of the
Council as required by s 219(3) of the Act.
With
regard to s 219(4) of the Act, the learned judge said the following:-
Subsection
(4) of s 219 of the Act requires that a copy of all the objections
lodged shall be sent to all councillors with the notice
for the
meeting. That means that a copy of each objection that has been
lodged must be sent to councillors. The objection lodged
by the
applicant contained the signatures of over 2 000 people. Therefore
any copy of that objection should also contain the same
number of
signatures. The requirements of s 219(4) of the Act are quite
clear. A copy of each objection must be sent to councillors,
not a
copy of part of the objection together with an explanation of what
the other part of the objection
consists of.
I entirely
agree with those comments. However, by nullifying the increases on
the ground that the Council had not complied with
s 219(4) of the Act
the learned judge overlooked the fact that when the Council sent a
copy of part of the objection together
with an explanation of what
the other part consisted of it was acting on an erroneous
direction given to it in an ex
tempore
judgment of the High Court in an earlier application brought by Mr
White, the Chairman of the Association, in 1998 for the nullification
of the 1996 budget. The learned judge in that case said:-
In
July and August of 1996 the respondent advertised in the newspaper
various rates and other tariff increases. A petition objecting
to
the proposed increases
was lodged with the respondent. There were two thousand (and) five
hundred signatures on the petition. Section 219(4) of the
Urban
Councils Act provides that (the) notice to councillors of any meeting
at which proposed tariffs and charges are to be reconsidered
shall
contain a copy of all objections lodged unless councillors have been
previously circulated with a copy thereof
The
Acting Town Clerk says in his affidavit that it was practically
impossible to circulate all the two thousand (and) five hundred
objections before the date of the meeting.
It was of
course the gist of the petition and the fact that it contained two
thousand (and) five hundred signatures (that) had to
be notified to
the councillors. Not all the signatures
(emphasis added).
The
judgment, of which the above passage is a part, was given on 2 June
1999. It is quite clear from the judgment that the learned
judge
was of the firm view that it was not necessary to send the booklet
containing the 2 500 signatures to the councillors. I
have no doubt
in my mind that that is an incorrect interpretation of s 219(4) of
the Act.
Nevertheless,
in the present case the Council proceeded in terms of what had been
directed by the learned judge to be the best way
of satisfying the
requirements of s 219(4) of the Act. In doing so, the Council
cannot be faulted. In my view, this is a special
feature in this
case which would justify the issuing of a declaratory order without
setting aside the increased levies and charges,
which have been
operational since 2001.
Finally,
I wish to point out that the owners rates are not dealt with in terms
of s 219 of the Act, but in terms of s 274 which
does not provide for
objections to any increases. For that reason, the increased owners
rates should not have been set aside.
As far as
the costs of appeal are concerned, since the appellant Council did
not comply with the provisions of s 219(4) of the Act
there will be
no order as to costs, notwithstanding the fact that the appeal has
been successful. However, the costs in the court
a
quo
stand on a different footing because there is no reason why the
respondent Association should not be awarded its costs of suit.
In
the circumstances, the following order is made:
The
appeal is allowed with no order as to costs.
The order of
the court a
quo
is set aside and the following is substituted:
a. It is declared that the
respondent did not comply with the provisions of s 219(4) of the
Urban Councils Act [Chapter 29:15].
The
respondent shall pay the costs of the application, including the
costs of the application for the rescission of the default
judgment.
CHEDA
JA : I agree
MALABA
JA: I agree
Bere
Brothers,
appellant's legal practitioners
Henning
Lock Donagher & Winter,
respondent's legal practitioners
