Homeowner vindicated after CoJ's ‘illegal use' property rates declared unlawful

The Citizen

2 days ago

High Court orders the City of Joburg to reverse all charges levied against a Randburg property since July 2019.
The City of Johannesburg's (CoJ's) conduct in levying property rates on a Randburg woman's home, based on the tariff applicable to properties put to an illegal use, has been declared unlawful by the High Court in Johannesburg.
Sylvia Maria Lampe has operated a home exercise studio for 42 years and was granted permission by the Randburg Town Council on 19 January 1984 to run her studio from the property.
Some 25 years later in 2017, the CoJ, which had succeeded the Randburg Town Council's rights and obligations, determined that Lampe did not have its consent to operate her business on the premises.
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Court orders reversal of charges
Judge Stuart Wilson on Thursday ordered the CoJ to reverse all charges levied on Lampe's municipal account since 1 July 2019, which were based on the claim that the property was being put to illegal use.
Judge Wilson also interdicted and restrained the CoJ from continuing to levy property rates against Lampe's municipal account on this illegal property use basis.
The CoJ must, within 30 days of the date of Judge Wilson's order, also furnish Lampe with a municipal account recalculated on the basis of his orders.
The CoJ was further interdicted and restrained from terminating any services to Lampe's property on the basis of non-payment of municipal charges levied in contravention of Judge Wilson's order.
The order granted against the CoJ reflects what Lampe applied for in her application.
Judge Wilson criticised the CoJ, stating it had conducted itself throughout the litigation 'in an unresponsive and high-handed manner'.
'It failed seriously to oppose the bulk of Ms Lampe's claim. In the end, it pursued a far-fetched justification of one portion of the penalties it has imposed.
'Had the city engaged reasonably and sensibly with Ms Lampe from the outset, this application would never have been necessary,' he said.
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Attempts to resolve consent issue
Lampe sent two letters to the CoJ after it determined that she did not have its consent to operate her business from the property.
She explained that her business was being operated in accordance with the licence she obtained from the Randburg Town Council in 1984 and that, accordingly, she did have the necessary consent to operate her business. Therefore, the property was not being put to an illegal use, and the notice should be withdrawn.
Judge Wilson said those letters were ignored, and the CoJ in July 2019 increased the property rates levied against the property.
Lampe told the court that from that month her municipal account included an additional R9 400 per month in rates and taxes.
This was levied on the basis that the property was being put to an illegal use because the CoJ had not consented to its use as a home exercise studio.
Lampe could not afford these charges and did not pay them, but she lodged a new application with the CoJ for consent to run her business from the property.
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Electricity disconnected, later reversed by court
The CoJ responded to Lampe's refusal to pay the additional rates by terminating her electricity supply and suing for the outstanding amounts. However, the electricity disconnection was reversed by order of Judge Bashier Vally on 5 March 2020.
Judge Vally also ordered the parties to 'hold a debatement regarding the penalties charged' to Lampe within 30 days of his order.
Judge Wilson said that this debatement never took place, with the CoJ taking the view it would simply proceed with its action to collect the rates it claimed were owed.
Lampe's new consent use application from the CoJ was granted in October 2020.
Judge Wilson said this seems to have triggered the withdrawal of the CoJ's action to collect the outstanding rates.
But, Judge Wilson said the CoJ continued to levy enhanced rates and taxes against Lampe's property on the basis that it was being put to an illegal use, despite the CoJ itself having consented to the use of the property in October 2020.
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Ongoing attempts to disconnect
Lampe, in the meantime, had to fend off further attempts to disconnect her water and electricity supplies.
Judge Wilson said the CoJ did not seriously oppose the relief sought by Lampe in respect of the illegal use charges levied on or after 20 October 2020, the date on which it gave its consent for the use of the property to run her business.
He said the CoJ in its answering affidavit says that it is 'attending to reverse the penalty costs charged on and after 20 October 2020,' but highlighted that the answering affidavit was deposed on 6 September 2021.
'I have nothing before me that indicates that Ms Lampe's account has since actually been corrected to the extent the city concedes it should be.
'However, the city can suffer no prejudice from an order that it implements such a correction. If it has already done so, then so much the better,' he said.
Judge Wilson said the only real dispute before him was whether Lampe is entitled to the reversal of the penalty charges levied between 1 July 2019 and 20 October 2020.
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A 'far-fetched' proposition
He said the CoJ maintained the property was being put to an illegal use during that time because its consent was not obtained until 20 October 2020, and that the penalty charges it levied against the property during that time were perfectly lawful.
Judge Wilson disagreed, stressing the CoJ accepts that the consent the Randburg Town Council gave for the use of the property in 1984 binds it as the Randburg Town Council's successor in law.
He said the CoJ also accepts that the Randburg Town Council granted Lampe a licence to use the property for the purposes to which she put it, and also that the licence was renewed annually for 10 years before being renewed indefinitely.
Judge Wilson said the CoJ stakes its opposition to Lampe's application solely on the contention that she never applied for consent in terms of the Randburg Town Planning Scheme of 1976.
The CoJ's point, as far as he understands it, seems to be that Lampe might have had a business licence from the Randburg Town Council but that did not mean the Randburg Town Council had consented to the use of the property in terms of its Town Planning Scheme of 1976.
'I find that proposition far-fetched.
'It beggars belief that the Randburg Town Council would have issued a business licence that authorised the illegal operation of Ms Lampe's business from the property nominated in the licence,' he said.
Costs were awarded against the CoJ.
This article was republished from Moneyweb. Read the original here.