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I am a qualified Attorney. I specialise in Property Law, Commercial Law, Corporate Law and Trusts.
 
Please visit our website at www.prop-law.co.za for more details.
 
I am an elected Committee Member of the Property Committee of the Association of Pretoria Attorneys and through my involvement, I like to ensure that I am constantly at the "sharp-end" of Conveyancing Practice.

I am the elected Chairman on the Gauteng Council of SAPOA. The South African Property Owners Association (SAPOA) is the biggest and most influential institution in the property industry. SAPOA members control about 90% of commercial property in SA, with a combined portfolio in excess of R150 Billion (about $22 Billion). I am also on the National Council and the National Legal Committee of SAPOA.
 
Member of the Institute of Directors South Africa and Member of the Sirdar Governance Panel.

24 July 2014

Judge slates 'arrogant' municipality over property transfer ineptitude

... 'despite the ringing phrases of the constitution and the Constitutional Court, Canton Trading's requests were met with the inscrutable face of the bureaucratic sphinx'.

I like it!

Gareth Shepperson
Commercial and Property Attorney















Judge slates 'arrogant' municipality over property transfer ineptitude

If your municipality is messing you around, you might enjoy the comments made by a court this week when faced with evidence of outrageous bureaucratic inefficiency and arrogance.

It's a case that should lead to the sacking for uselessness of certain Buffalo City officials - though you would be a fool to put money on this happening.

The case involved Canton Trading, an outfit that sold four East London properties to the Goldblum Family Trust. When the properties were sold the four properties were consolidated into one and the deeds office issued a certificate to this effect.

Prior to the sale the municipality gave Canton a bill reflecting the total rates and taxes outstanding on the properties. This was paid, a clearance certificate was issued and the sale and transfer then took place.

Strangely, however, Canton continued to get statements and letters of demand from the municipality relating to the properties that had been sold.

It created the impression in the minds of both buyer and seller that the municipal records hadn't been updated and that the people sending out the accounts didn't know the properties had been sold and the account cleared by the seller. So Canton Trading asked - and later demanded via a court application - that the municipality fix its records. At the same time Canton asked how the original clearance bills had been arrived at and requested an explanation of the figures in the official bills presented for payment before the municipal clearance certificate was issued.

That sounds perfectly reasonable, doesn't it? But it was the start of an incredible battle with the municipality in which officials threw up all kinds of reasons not to provide the information and even contested the matter in court.

As Judge Clive Plasket, who heard the matter, put it: 'One would have imagined that requests of so innocuous, simple and routine a nature would have been complied with by return of post.'

After all, in terms of public administration laws, not to mention the constitution, that's exactly what a professional, ethical, efficient and accountable municipality was obliged to do. To take just one example, the constitution says the public administration must foster transparency by 'providing the public with timely, accessible and accurate information'. But no, one would be wrong. 'Alas,' said the judge, 'despite the ringing phrases of the constitution and the Constitutional Court, Canton Trading's requests were met with the inscrutable face of the bureaucratic sphinx'.

Because the municipality was so obnoxious and unwilling to comply with its duties, the two parties - Canton and the trust - had to go to court to ask for the information they needed. So now at last, faced with court action, could one expect that the - very simple - problem would be speedily resolved? Since the municipality would be using public funds for the litigation, it would surely act in the best interests of ratepayers and sort things out?

Quoting a Canadian case the court explained there was an obligation on the municipality to behave properly in such a matter: 'A municipality is not a fairy godmother to lavish gifts indiscriminately.'

Instead its money is 'in no very remote sense the money of all the ratepayers' and so it must use public funds responsibly.

But again no. All kinds of false trails were laid and invalid objections raised by the municipality, mostly via its municipal manager, Andile Fani.

The objections he raised were dismissed by the judge as 'factually incorrect and disingenuous'.

Let me remind you that the latter is a polite way of saying that the guy lied and was deceitful, something underlined later when the judge said that Fani's affidavit was 'premised on an untruth'.

Yet, said the judge, even though it was clear the municipality had made a mistake there was no apology offered 'but rather a brazen attempt to lay the blame... on Canton'.

Having demolished the municipality's argument, point by point, the judge added that the matter had been a waste of time and money. The municipality's attitude dramatically escalated the costs.

'I shall put it bluntly. The opposition to the application was frivolous and ill-conceived. The ratepayers of East London, who have funded the municipality's litigation, have not been well served,' he said.

This led, inevitably, to his conclusion that Buffalo City should pay costs at a punitive rate. Poor ratepayers: the inscrutable sphinx may be storing treasure somewhere behind that gaze. But it surely won't last very long at this rate.

Carmel Rickard
The Star

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