De Vries and Others v Council of the Municipality of Keetmanshoop (HC-MD-CIV-APP-AMC-2023/00011) [2024] NAHCMD 619 (22 October 2024)

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

Case no: HC-MD-CIV-APP-AMC-2023/00011

 

In the matter between:

 

EDWARD DE VRIES 1^ST APPELLANT

VERONICA DE VRIES 2^ND APPELLANT

MAREE MAGDALENA SMIT 3^RD APPELLANT

JURGENS A VAN NILL 4^TH APPELLANT

ALIDA VAN GREUNEN 5^TH APPELLANT

STEFAN FOURIE 6^TH APPELLANT

JAN HARTUNG 7^TH APPELLANT

ESME HEYMAN 8^TH APPELLANT

WILLEM N DEGE 9^TH APPELLANT

WYNAND P J ERASMUS 10^TH APPELLANT

HERMANUS J LOUWRENS 11^TH APPELLANT

JOHAN SWIEGERS 12^TH APPELLANT

SUSANNA M M HULME 13^TH APPELLANT

KIEWIET DE VILLIERS 14^TH APPELLANT

CELINE FOURIE 15^THAPPELLANT

CHRISTO BLOEM 16^TH APPELLANT

JACOBA BECKER 17^TH APPELLANT

ABRAHAM SMIT 18^TH APPELLANT

PERCY MCNALLY 19^TH APPELLANT

GERALD SASS 20^TH APPELLANT

PETRUS JACOBUS ALBERTS 21^ST APPELLANT

JUDY SUZANNE BASSON 22^ND APPELLANT

GERRIT VAN DEN HEEVER 23^RD APPELLANT

SUMADRI MALAN 24^TH APPELLANT

 

and

 

THE COUNCIL OF THE MUNICIPALITY OF KEETMANSHOOP RESPONDENT

 

Neutral citation: De Vries v The Council of the Municipality of Keetmanshoop (HC-MD-CIV-APP-AMC-2023/00011) NAHCMD 619 (22 October 2024)

 

Coram: ANGULA DJP

Heard: 14 June 2024

Delivered: 22 October 2024

 

Flynote: Appeal – Proceedings before the Valuation Court – Local Authorities Act 23 of 1992 – Whether the Valuation Court committed irregularities – Court finding that irregularities were committed in the proceedings – The court exercised its review jurisdiction mero motu and set aside the proceedings.

 

Summary: The appellants appealed against the decisions of the Valuation Court for the local authority area of Keetmanshoop made during the valuation proceedings held between the period 2 September 2022 to 21 October 2022. The local authority did not oppose the appeal. From the record of the proceedings, the court found that; the valuer took the same oath as the members of the Valuation Court; the objectors were not made aware in advance that they had the right to provide expert evidence to contradict the valuer’s determination of the value of their properties; when the objectors requested for an opportunity to call their own expert valuers they were not granted the opportunity to do so; that the valuation report did also not lie open for inspection as required by the Act; and that except for objector Ms Renette van Wyk, who testified under oath, no one else who appeared before the Valuation Court was sworn in before narrating his or her objection to the Valuation Court.

 

Held that; section 16 of the High Court Act 16 of 1990 vests this court with the power to review the proceedings of the lower courts. Furthermore, that s 20 of the High Court Act provides that the High Court shall have jurisdiction to review the proceedings of the lower courts on the ground of inter alia gross irregularities which occurred in the proceedings.

 

Held that; the court was entitled to interfere to ensure that justice was done.

 

 

ORDER

 

 

1. The proceedings of the Valuation Court held over the period of 2 September 2022 to 21 October 2022 at Keetmanshoop, are set aside, and the matter is referred back to the Valuation Court to start de novo and in compliance with the provisions of the Local Authorities Act 23 of 1992.

 

2. The main valuation roll as determined by the Valuation Court is set aside.

 

3. There is no order as to costs.

 

4. The Registrar of this court is directed to forward a copy of this judgment to the Chief Magistrate, for dissemination amongst the Magistrates.

 

5. The matter is finalized and removed from the roll.

 

 

 

JUDGMENT

 

 

ANGULA DJP:

 

Introduction

 

1. This is an appeal against the decisions of the Valuation Court for the local authority of Keetmanshoop rejecting the appellants’ objections and confirming the valuation roll concerning the appellants’ rateable properties. The decisions were made during the proceedings which took place over the period of 2 September 2022 to 21 October 2022 and were ordered to take effect from 1 November 2022.

 

2. Aggrieved by the Valuation Court’s decision concerning their properties, the appellants lodged this appeal on 24 January 2023 in terms of s 71(1) of the Local Authorities Act 23 of 1992 (the Act). The appellants are all property owners situated within the local area of the Council of Keetmanshoop.

 

3. The respondent is the Council of the Municipality of Keetmanshoop, a juristic person established in terms of s 3 of the Act, situated at Hampie Plichta Avenue, Keetmanshoop, Namibia. The respondent does not oppose the appeal.

 

4. To contextualise this appeal, the grounds of appeal are set out first.

 

Grounds of appeal

 

5. The grounds of the appeal raised are as follows:

 

‘1. That the Presiding Officer, erred in law and in fact in imposing a burden of proof on Appellants, to prove to her satisfaction that the value of their properties, did not increase and if it did, to what extent - whereas Section 70(1) of the Local Authorities Act 23 of 1992 does not impose a burden of proof at all, but only states that the property owner, should be heard.

 

2. That the Learned Presiding Officer, erred in law and in fact in insisting that the Legal Representative acting on behalf of the property owner, should provide a Power of Attorney, whereas Section 70 (3) of the Local Authorities Act 23 of 1992 does not make provision for such a requirement at all, but only provides that a property owner who has lodged an objection against any valuation, may be represented by a Legal Practitioner admitted to practise as an Advocate in terms of Act 74 of 1964 or as an Attorney in terms of Act 53 of 1979.

 

3. That the Valuation Court, erred in law and in fact in rubber stamping the valuation by the valuer retained by the Municipality - such not being the function of the Valuation Court.

 

4. That the Valuation Court, erred in law and in fact in increasing the value of Appellants' properties by:

 

4.1. N$166 970.00 or 118 percent in respect of Erf 438, - such a finding being illogical, and irregular and unsubstantiated.

 

4.2. N$422 317.00 or 150.99 percent in respect of Erf 605, - such a finding being illogical, and irregular and unsubstantiated.

 

4.3. N$710 755.00 or 147.45 percent in respect of Erf 1243, - such a finding being illogical, and irregular and unsubstantiated.

 

5. That the Valuation Court erred in law and in fact in increasing the value of Appellants' properties, without applying its mind whether any improvements or additions were made to the property in the 7 years since the last Valuation Court sat.’

 

Issues for determination

 

6. The first issue for determination is whether the Valuation Court erred in the instances alleged by the appellants. The second issue is whether the proceedings of the Valuation Court were vitiated by irregularities.

Submissions on behalf of the appellants

 

7. The appellants were represented by Mr McNally, who was also an appellant himself. Counsel filed two sets of heads of argument. The first set articulated the grounds of appeal. Thereafter, further supplementary heads of argument were filed at the request of the court after the court raised concerns in the manner in which the proceedings of the Valuation Court were conducted, having regard to the record of the proceedings.

 

8. In the first sets of heads of argument, Mr McNally, submitted that the Valuation Court committed several irregularities. The first irregularity noted was the remark by the presiding officer at page 10 of the record which reads follows:

 

‘The party raising the objections has no evidence or law to support the 20% to 30% increase proposed by the lawyer and the law is clear in Section 65 (5) that the valuer shall determine the percentage using the market value amount a willing buyer & seller would use on the property. The amounts & percentages used to do these calculations were in terms of exhibit L which is the sole amount the council uses. Thus, I find no merit in the objection.’

 

9. Mr McNally submitted that the above finding constitutes an ‘irregularity and a misdirection’, because the Valuation Court failed to apply its mind to the value of the land and the value of the improvements. Counsel further submitted that, the Act makes provision for two different tests to be applied for the land and for the improvements and that the method that was applied by the valuer to determine the value of the properties is not as provided for by the Act. Mr McNally submitted that the valuer used a uniform rate for the valuations. He submitted that in respect of ‘the Westdene and Noordhoek townships the valuer for instance valued the dwellings as N$4,500.00 flats at N$3,500.00 outbuildings N$3,500.00, storerooms at N$3,000.00 garages at N$3,800.00 and swimming pools at N$45,000.00’ and that the properties that were valued could not have been in the same condition. An argument was made that, the valuer did not consider the effects that improvements and depreciation would had have on the property and that two properties cannot be in the same condition for valuation purposes. That notwithstanding, the valuer used only one flat rate of 0.6 per cent for depreciation.

10. Counsel further submitted that the valuer was an expert witness and therefore his evidence and findings should have been approached as that of an expert witness, which the Valuation Court did not do. Counsel relied for his submission on the decision of Nell v Lubbe¹, which was referred with approval by this court in Beukes and Another v First National Bank Limited and Others², that the court should not simply have rubber stamped the opinion of the expert witness.

 

11. Mr McNally submitted further that the presiding officer expected the property owners to satisfy the Valuation Court beyond an ‘undetermined burden of proof that the value of their respective properties did not increase and if it did to what extent’. Counsel thus submitted that approach amounted to an irregularity as the Valuation Court, is a creature of statute and should exercise its powers in accordance with the empowering statute. He demonstrated the point with reference to an extract from the record, being an exchange between him and one of the members of the Valuation Court at page 12 of the record. The exchange went as follows:

 

‘Hango: Proof (sic) to the court your calculations versus the valuer's calculation because without proof or a valuation report how can we rule it out, where is your report?

 

McNally: It was expected of these people to find the valuer of (sic) short notice & it was simply not practically possible. Common sense dictates that the property cannot increase at 233 percent, what methodology was used.’

 

12. Mr McNally further submitted that, the presiding officer erred and misdirected herself in requiring the legal representatives who were representing the property owners, to provide a power of attorney to represent them. Counsel argued in this regard that s 70(3) of the Act only provides that a property owner who lodges an objection against a valuation may be represented by a legal practitioner admitted in terms of the Legal Practitioners Act 15 of 1995. The Act does not require that the legal practitioner should file a power of attorney.

 

13. I interpose to mention that the appeal was initially set down for hearing on 7 May 2024, however, on that date the court mero motu raised questions in respect of the procedure followed by the Valuation Court during the hearing. It appears from the record for instance that the valuer was part of the panel and did not act as an independent expert witness; that no oaths or affirmations were administered before the objectors and/or the valuer could testify. Accordingly, this court requested Mr McNally to file supplementary heads of argument to address the concern detected by the court. The matter was, as a result, postponed to 11 June 2024 for further submissions.

 

[14] When the matter was called on 11 June 2024, Mr McNally had filed his supplementary heads of argument. He confirmed that during the court’s hearing, with the exception of one objector (who is not an appellant), no oaths were administered before the Valuation Court could hear the evidence of an objector. Furthermore, no oath was administered to the valuer before he testified about the content of the provisional valuation report; and that the report was simply accepted by the Valuation Court. The objections raised by the property owners were rejected on the basis that the objector could not prove that the valuation report was wrong.

 

[15] Counsel submitted further that, the Valuation Court is a court like any other court and therefore an oath or affirmation should have been administered before receiving any evidence. In this connection, counsel referred to s 70(6)(a)(ii) of the Act, which provides that the Valuation Court may in the exercising its discretion ‘administer an oath or take an affirmation from any person referred to in subparagraph (i) or any person, including the valuer, present at any sitting of the Valuation Court, and question such person under oath or affirmation in connection with any matter which it may deem necessary in connection with its powers, duties and functions’.

 

[16] Counsel further pointed out that during the valuation proceedings the valuer participated in the proceedings as part of the panel and was part of the ‘decision making’. In respect of every objection that was rejected, the Valuation Court stated ‘the valuer’s assessment confirmed in terms of Section 70(6)(i)’. Counsel submitted that the approach by the Valuation Court constituted an irregularity, as the court simply ‘rubber stamped’ the valuer’s report without further ado.

 

[17] As indicated, the appeal was not opposed. As such there was no conterveiling argument presented on behalf of the respondent. I now turn to consider the statutory framework of the Act, together with applicable legal principles relevant to the determination of the present matter.

 

Statutory Framework of the Act

 

[18] The record of the proceedings of the Valuation Court is replete with reference to sections of the Act, in particular, on whether such provisions have been complied with or not. It is therefore necessary to briefly set out the statutory framework in which the proceedings of the Valuation Court took place and which resulted in the present appeal, with a view to provide context.

 

Valuation of rateable properties within local authorities’ areas

 

[19] Each local authority is required by the Act to conduct a general valuation of all rateable properties within its area of jurisdiction at an interval of not more than five years. A notice for conducting the valuation has to be given in the Gazette. Apart from the general valuation, each local authority is in addition required to conduct an interim valuation of rateable properties also to be held during the period of five years.

 

[20] The interim valuation is to be held in respect of rateable properties whenever: (a) new improvements have been erected on a property contained in the main valuation; (b) additions or alterations have been effected to improvements contained in the main valuation; whenever improvements contained in the main valuation roll or a portion thereof have been demolished; (c) a property or part thereof is not contained in the main valuation roll; whenever a property has been subdivided or consolidated after being included in the main valuation roll; (d) a property included on the main valuation roll was rezoned or granted a consent use in terms of a town planning scheme promulgated in terms of the Town Planning Ordinance, 1954 (Ordinance 18 of 1954); (e) a property was substantially incorrectly valued as it is contained in the main valuation roll; or (f) there is good cause to revalue a property contained in the main valuation roll.³

 

Appointment of a valuer, power duties and functions

 

[21] When a general valuation or interim valuation of all rateable properties is required to be held in terms of s 66 of the Act, a local authority council shall appoint a person as a valuer who shall be responsible for the valuation of all rateable properties within its area. The valuer shall prepare a provisional valuation roll containing the following details, a description of every such rateable property; the name of its owner; its size and extent; and its total value, showing separately the value of the land and the value of any improvements effected on such land.⁴

 

[22] A valuer shall, before assuming his or her duties, take a prescribed oath before a commissioner of oaths. Furthermore, a local authority council shall cause a certificate of appointment to be issued to the valuer upon his or her appointment, and a valuer shall, for purposes of the valuation of any rateable property in terms of the Act, have all the powers as prescribed by the Act.⁵

 

Objections against provisional valuation roll

 

[23] A local authority council shall cause a notice in writing to be published in at least two newspapers circulating in its area on a date not later than 30 days before the date for the sitting of the Valuation Court. The aforementioned notice shall call upon the owners of rateable properties, in respect of which a valuation is contained in the provisional valuation roll, to lodge objections and the grounds for such objections in writing against any such valuation with the local authority council within a period of 21 days as from the date of publication of such notice. The notice shall state that, the provisional valuation roll is lying open for inspection during ordinary office hours in the offices of the local authority council; and that the Valuation Court will sit on the date, time and place so determined to consider the valuations contained in such provisional valuation roll and to hear and determine any objections lodged in respect of any valuations contained in such roll.⁶

 

Consideration of valuations contained in the valuation roll and objections lodged against the valuations

 

[24] A Valuation Court is required to consider every valuation contained in the provisional valuation roll and to hear any objections lodged in connection with any valuation and to determine the valuation of all rateable property contained in such roll. An owner who has lodged an objection against any valuation contained in the provisional valuation roll may appear in person or be represented by a legal practitioner admitted under the Legal Practitioners Act 15 of 1995.⁷

 

[25] The valuer shall attend all sittings of the Valuation Court. In the exercise of its powers, duties and functions, a Valuation Court may in its discretion require any person to appear before it in relation to any valuation contained in the provisional valuation roll. It may administer an oath or take an affirmation from any such person, including the valuer, present at any sitting of the Valuation Court, and question such person under oath or affirmation in connection with any matter which it may deem necessary in connection with its powers, duties and functions.⁸

 

 

Valuation Court

 

[26] A Valuation Court consists of the magistrate of the district in which the area of such local authority council is situated, who shall be the presiding officer of the Valuation Court. In addition, the court will consist of one person appointed by the Minister responsible for local authorities, and one person other than a member of the local authority council, as the case may be, appointed by the local authority council when it becomes necessary for purposes of a valuation of rateable property in terms of the provisions of the Act.⁹

 

[27] A Valuation Court may appoint any other person as assessor or such other number of persons as additional assessors as may be determined by it on account of the special knowledge and experience of any such person in the evaluation of properties, to advise the Valuation Court on the exercise or performance of its powers, duties and functions.¹⁰

 

[28] The presiding officer and one other member of the Valuation Court shall form a quorum for a sitting of the Valuation Court. A decision of the majority of the members of a Valuation Court shall be a decision of the Valuation Court.¹¹

 

[29] The Act does not make provision for how the proceedings before the Valuation Court are to be conducted. It would appear that the legislature has left it to the Valuation Court to determine its own proceedings. I may interpose here to mention that Regulation 15 of the Land Valuation and Taxation Regulations promulgated under the Agricultural (Commercial) Land Reform Act 6 of 1995, regulating the proceedings of the Valuation Court for agricultural land, may serve as a useful template for the proceedings of the Valuation Court of local authorities rateable properties.

 

[30] The Valuation Court may, after having considered all matters pertaining to any valuation contained in the provisional valuation roll or any property which were omitted from the previous main valuation roll or in respect of which an error had been made or which has become rateable, perform any of the following actions, namely: (a) confirm the valuations contained in the provisional valuation roll; (b) uphold any objection lodged in terms of s 69 of the Act and decrease any valuation contained in such provisional valuation roll; (c) decrease or increase any other valuation contained in such provisional valuation roll; (d) order the valuer to value any rateable property omitted from the roll, or revalue any rateable property with due regard to such guidelines and directions as may be determined by it; or (e) make such other amendments to the provisional valuation roll as it may deem necessary.¹²

 

Appeal against decisions of Valuation Courts

 

[31] Any owner of rateable property, who raised objections during the Valuation Court proceedings, in the area of a local authority, who feels aggrieved by a decision of a Valuation Court made about that objection shall have the right to appeal against such decision to the High Court of Namibia. For appeal purposes, the procedure to be followed in connection with such appeal, the decision of the Valuation Court shall be deemed to be a judgment of a magistrate's court.¹³

 

[32] That concludes the discussion on the statutory framework of the Act. I now turn to consider the appellants’ grounds of appeal against the statutory provisions as well the legal principles referred to earlier in this judgment.

 

Discussion and determination

 

[33] From the record it would appear that there is merit in Mr McNally’s submission that the valuer played a role of a member of the Valuation Court and not of an independent expert. It appears from the record at page 55 that the valuer took the oath prescribed for the members of the Valuation Court. It is the same oath that was taken by the members of the Valuation Court being, Mr Liebenberg and Ms Hango. The oath reads as follows:

 

‘[Declaration of oath]

 

hereby declare under oath/solemnly and sincerely that I will decide all matters put before me in this Court as a member/valuer to the best of my knowledge and ability and without fear or favour or prejudice, truly and impartially.

 

I further declare that if any matter should arise in which I, my spouse, my partner, my blood relation or any company of which I am a managing member or in which I have a direct or indirect pecuniary interest, I shall make known those facts to this court before such matter is dealt with by this Court.’ (Emphasis supplied)

 

[34] It is clear from the content of the oath that the person taking such an oath is placed in a decision-making position given the words ‘I will decide all matters put before me in this court’. This supports the contention by Mr McNally that the valuer was not independent in the exercise of his mandate which was to give expert evidence based on his valuation report. In my view,this constituted a vitiating irregularity and the proceedings are liable to be set aside on this ground alone.

 

[35] The fact that the valuer was not sworn in as a witness has a destructive effect on the probative value of his purported expert evidence, including the submission of the valuation report into the record.

 

[36] A valuer is an expert witness and his evidence should have been dealt with in the same way as any other expert evidence is dealt with in court proceedings. In Firstrand Bank v Engelbrecht and Another In re: Ex Parte: Engelbrecht and Another,¹⁴ the court held as follows with regard to the position of an expert witness:

 

‘[16] An expert can only provide guidance to the court if his or her evidence complies with strict requirements in order to be acceptable. These are the following:

 

(a) The expert must have sufficient knowledge and experience in his specialist field to be recognised as a person of standing among her or his professional colleagues;

 

(b) The expert must be fully familiar with, and adept at applying the standards and procedures of his profession and its practices;

 

(c) The expert witness should be completely independent of the litigants and their legal representatives and should formulate his or her opinion without – if such is possible – knowledge of, and certainly without regard to, the result the litigant wishes to achieve by the employment of the expert's services. In the case of insolvency proceedings the expert should be completely in the dark regarding the amount that the insolvent's assets will have to be disposed of in a forced sale situation in order to guarantee an advantage to creditors;

 

(d) An expert witness must be able to provide cogent reasons for her or his conclusions and must be able to explain, in clear and logical terms, the manner and fashion in which he or she came to hold the view that is presented as the expert's opinion. The facts that informed the opinion must be recorded objectively and as fully as possible. Any formula that is applied or followed in the process of investigation and assessment must be identified, explained in detail and reasons must be provided for the choice of the particular formula under the given circumstances;

 

(e) It is self-evident that an expert must be honest and beholden only to his or her duty to assist the court in the search for the truth, without regard for the consequences that the true facts may have for the applicant in whose matter the expert was employed to give evidence.’

 

[37] From the case referred to above, it is clear that the valuer’s duty was to guide the court as an expert witness. His expert opinion should have been received into evidence through his testimony, which should be done under oath as a witness. It appears from the record that the valuer did not testify at all. This in my view constitutes a further vitiating irregularity.

 

[38] During the hearing, whilst dealing with the objection of the property of one M M Smith, Mr McNally questioned the percentage increase in the rate. At page 11, the following exchange took place:

 

‘Mr McNally: The increase should not be calculated at a rate more than 20-30% & not at the rate as per the figures.

Hango: Proof to the Court, your calculations versus the valuer’s calculation because without proof or a valuation report how can we rule it out, where is your report?’

 

[39] The following exchange further took place at page 12:

 

‘Valuer: If the objection says the value is high, where is the proof that says so?

McNally: The Act does not make provision for a burden of proof placed on the objector. It should be proven on a balance of probabilities, that is the burden of proof & we cannot read into the Act what is not there. The methodology used is not applicable so to use conjured sales as an increase in totally irrelevant as they do not intend to sell the property. Section 17(1) is clear.

Chairperson: Having heard the parties & considering the objection lodged, the letter dated 10/08/2022 is clear that the objection only lies against the percentage increase & not the actual increase of the municipal value. The party raising the objection has no evidence or law to support the 20 to 30% increase proposed by the lawyer & the law is clear in section 67(5) that the Valuer shall determine the percentage using the market value amount a willing – willing buyer & seller would use on the property. The amounts & percentages used to do these calculations were in terms of Exhibit L which is the sole amount the Council uses. Thus I find no merit in the objection…’

 

[40] Mr McNally requested to arrange for an expert witness to have a look at the valuation report of the valuer. The request was not entertained by the court and this can be deduced from the following extracts at page 17 of the record:

 

‘In respect of the property under discussion, I request the Court to direct that the Expert provides his valuation report in respect of erf 1096. The reasoning is so that we can have his opinion evaluated by an expert of our own as an objector is now settled with an evidentiary burden to discharge. So our expert can have a look & evaluate the evaluation report.

Valuer: This is mass valuation & a valuation repent is not required. A valuation calculation sheet was provided to the municipality with the valuation cards.

Chairperson: Was the valuation sheet and the valuation cards also laying open for inspection?

Ms. Hango: No.

Mr. Liebenberg: Those that wanted to inspect it requested to & inspected it at the Council.

Chairperson: what method was used to derive at the percentage increase?

Valuer: Like I explained before, we used the cost method of valuation. It involves computing the improvements & then deducting the depreciation & adding the estimated land value.

Chairperson: Does it mean you used the market value or willing buyer-willing seller estimation amount?

Valuer: Yes, in terms of market research & thus on Exhibit L we clearly indicated the rates used in 2015 & we did not use the market rate.

Chairperson: The Act only allows the Court to order the Valuer to add the omitted values or to revalue the property, this an order cannot be made for the Valuer to provide a Valuation Report, and any of the members have a different view?

Ms Hango: I agree

Mr. Liebenberg: I agree

Chairperson: There is no evidence provided that the Valuer used a wrong method. The Act clearly states he should use the willing buyer or willing seller (market value) amount & that was done. Apart from stating the percentage increase is excessive the objection stands without merit. Any of the members have a different approach or finding?

Ms Hango: I agree

Mr. Liebenberg: I agree

 

Objection cannot be sustained & the assessment of the Valuer is confirmed in terms of section 70(6)(i) of the Act. Objector informed that he is free to exercise his right of appeal in terms of section 71.’

 

[41] In considering the extracts from the record, it is clear that the objectors were not made aware in advance that they were required to provide proof in instances where they objected to the values determined by the valuer. It is further evident from the record of proceedings that Mr McNally requested the valuer to read the values into the record for the objectors to bring their valuers to comment on the valuer’s opinion. This was refused by the presiding officer. Quite apart from the fact that the valuer’s report was not read into evidence; when the objectors requested for an opportunity to bring their expert witnesses to comment on the valuer’s report they were not granted the opportunity to do so. That refusal has the effect of rendering the proceedings not in accordance with justice. They are accordingly unfair.

 

[42] It is not clear from the record whether the valuation roll was laid open for inspection as required by the Act. That much is clear, when the presiding officer enquired whether the valuation report had lain open for inspection. In answer, Ms Hango said ‘No’ and that those who wanted to object should have requested for permission to inspect the valuation report at the council’s office. This is a further non-compliance with the provisions of the Act. It renders the proceedings liable to be set aside therefor.

 

[43] It further appears from the record that, except for the objector Ms Renette van Wyk who testified under oath, no one else who appeared before the Valuation Court, was sworn in and questioned under oath or affirmation taken before conveying his or her objection to the Valuation Court. It would be recalled that when the court considered the statutory framework the Act provides that the Valuation Court may question any person under oath or solemn affirmation, including the valuer, about any matter which it may deem necessary in connection with its powers, duties, and functions. The record shows that this provision of the Act was also not complied with.

 

[44] Regarding the method used by the valuer to determine the value of the properties, the valuer stated that he conducted a mass valuation. There appears to be merits in Mr McNally’s submission when he pointed out that the Act makes provision for two different tests to be applied to the land and to the improvements and that the test that was applied by the valuer was not provided for in the Act. According to the record of the proceedings the valuer used one flat rate. The uncertainty about the method of valuation applied by the valuer is compounded by the fact that the valuer did not testify as to how he went about to determine the value of the rateable properties. The method of valuation that is provided by the Act in s 67(5) in case of land portion, the value is determined at a price which a willing buyer would be prepared to pay and a willing seller would accept, both acting in good faith. In case of any improvement on such land the value is determined on the basis of the estimated costs of the construction of such improvement, had such improvement been constructed at the time of such valuation, taking into account depreciation, obsolescence, or any change of circumstances in the vicinity of such improvements. In my view, it accords with common sense that the method used for each property is based on its market value. The factors that determine the market value of a property would generally be the location, the improvements, the age of the property, and the market condition at the time the valuation is conducted.

 

[45] Mr McNally is correct in his submission that no provision in the Act places an onus on the objectors to prove that the valuer’s valuation is wrong. The Valuation Court has to approach the valuation with a mind open to persuasion. The Valuation Court should accept that the owners of the properties that lodge objections are assisting the court in determining the correct market value of the properties and should not be treated as being obstructive or a nuisance. The participation of the owners of the properties as objectors must be welcomed by the Valuation Court because they are assisting the court to properly determine the market value of the properties which will enable the local authority to determine the proper rate to be levied on the properties concerned.¹⁵

 

[46] There is no onus on the property owner to prove the market value of his or her property. On the contrary, the onus is on the municipality to prove the correct market value of the property, to enable the municipality to determine the rate to be levied on the property. Accordingly, it was wrong for the Valuation Court to have approached the exercise on the basis that the onus was on the property owners as objectors to prove that the valuation by the municipal valuer was wrong. Such approach is not prescribed by the Act.

 

[47] Furthermore, the counsel is correct that the presiding officer erred and misdirected herself in demanding that a legal practitioner such as Mr McNally who was appearing for the objectors should file a power of attorney, as the Act does not make provision for such requirement.

 

[48] This court is mindful of the fact that this matter came before it in a form of an appeal and not a review. However, s 16 of the High Court Act, 1990 vests this court with the power to review the proceedings of the lower courts. Furthermore, s 20 of the High Court Act provides that the High Court shall have jurisdiction to review the proceedings of the lower courts on the ground of gross irregularity.

 

[49] The learned authors Herbstein & Van Winsen¹⁶ have the following to say about the High Court’s power to review the proceedings of quasi- judicial bodies.

 

‘Statutory bodies such as liquor-licensing boards, municipal valuation boards and rent boards are not ‘courts’ in the usual sense of the word. They do not give judgments and their orders are not enforceable in the ordinary way by execution. While it is not necessary for such boards to conduct their proceedings in the strict legal manner required of inferior courts, they must necessarily do so in a manner that will be just to all parties. If they do not, the High Courts will interfere and ensure that natural justice is done. This is a right inherent in a High Court, which has jurisdiction to entertain all causes arising within its area of jurisdiction. The non-performance or wrong performance of a statutory duty by which third persons are injured or aggrieved is a cause falling within the ordinary jurisdiction of the court. The court will, when necessary, summarily correct or set aside proceedings that fall under this category’. (Emphasis supplied)

 

[50] I accept the legal approach and proposition by the learned authors as being correct and applicable in this jurisdiction as well.

 

[51] In Beukes v Benade and Another¹⁷, it was held that ‘the review jurisdiction of the court would be invoked mero motu if it comes to the court’s attention that an irregularity had occurred in the proceedings of the court a quo’. It is clear from what has been stated, that several irregularities occurred in the proceedings of the Valuation Court. This court accordingly has the jurisdiction to interfere and correct whatever anomalies afflicted the proceedings of the Valuation Court.

 

[52] On the basis of the above authoritative exposition of the law, this court is entitled to interfere in the proceedings of the Valuation Court in order to ensure that natural justice is done. This court cannot turn a blind eye to the gross irregularities committed by the Valuation Court in the present matter.

 

Conclusion

 

[53] In view of the foregoing considerations and conclusions, I find that the Valuation Court has committed gross irregularities in the proceedings justifying this court to set aside those proceedings.

 

Order

 

[54] In the result the following order is made:

 

1. The proceedings of the Valuation Court held over the period of 2 September 2022 to 21 October 2022 at Keetmanshoop, are set aside, and the matter is referred back to the Valuation Court to start de novo and in compliance with the provisions of the Local Authorities Act 23 of 1992.

 

2. The main valuation roll as determined by the Valuation Court is set aside.

 

3. There is no order as to costs.

 

4. The Registrar of this court is directed to forward a copy of this judgment to the Chief Magistrate, for dissemination amongst the Magistrates.

 

5. The matter is finalized and removed from the roll.

 

 

___________________

H Angula

Deputy Judge President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

APPELLANTS: P McNally

Of La Grange Legal Practitioners,

Keetmanshoop

 

RESPONDENT: No appearance