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APPEALS, REASONS AND THE BURDEN OF PROOF – A SUCCINT OVERVIEW OF THE MUNICIPAL PROPERTY RATES ACT AND REGULATIONS

APPEALS, REASONS AND THE BURDEN OF PROOF – A SUCCINT OVERVIEW OF THE MUNICIPAL PROPERTY RATES ACT AND REGULATIONS . Prepared by A.M Viviers. for MPRA seminar: 4 November 2011, Northern Branch S.A.I.V. AGENDA. Legislation  The Local Government Municipal Property Rates Act, Act No 6 of 2004 

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APPEALS, REASONS AND THE BURDEN OF PROOF – A SUCCINT OVERVIEW OF THE MUNICIPAL PROPERTY RATES ACT AND REGULATIONS

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  1. APPEALS, REASONS AND THE BURDEN OF PROOF – A SUCCINT OVERVIEW OF THE MUNICIPAL PROPERTY RATES ACT AND REGULATIONS Prepared by A.M Viviers for MPRA seminar: 4 November 2011, Northern Branch S.A.I.V

  2. AGENDA • Legislation  • The Local Government Municipal Property Rates Act, Act No 6 of 2004  • The Regulations  • Functions of the Municipal Valuer  - Capita Selecta – Relevant Sections of the Act • The Municipal Valuer’s decision and his/her reasons for the decision  • Regulations - minimum information to be submitted with objection  • Powers and functions of the Valuation Appeal Board - Re. Access to information - Hearing of Appeals • Common mistakes pertaining to the objection and appeal process • Administrative justice - Case law • Functions of VAB – What to expect • Burden/Onus of proof • Conclusion • Questions/discussion

  3. Introduction • Legislation - The Municipal Property Rates Act, Act No 6 of 2004 (MPRA) • Promulgated: 2nd July 2005 – • Regulations referred to in Section 83 of the Act came into operation on the 18th of October 2006 • The new Act repealed old Local Authorities Rating Ordinance 11 of 1977 T (as well as various other provincial ordinances regulating property rating) • The new Act introduced a single Property Act applicable throughout the country. • Preamble - inter alia“to make provision for fair and equitable valuation methods of properties”

  4. The Functions of the Municipal Valuer • Capita Selecta – Relevant Sections of the Act •  Chapter 5 valuation criteria – Section 45 valuation •  The property must be valued in accordance with general recognised valuation practises, methods and standards and the provisions of this Act •  Physical inspection is optional •  Comparative, analytical or other systems and techniques may be used •  Aerial photography •  Computer assisted mass appraisal systems or techniques •  Mass valuation system or technique, as approved

  5. THE FUNCTIONS OF THE MUNICIPAL VALUER – Section 34 (cont.) • The valuer of a Municipality must in accordance with this Act value all properties determined in Section 30 •  All properties valued must be included in the roll •  Inclusive of those properties referred to in section 30(3)- subsection (2)(b) and section (2)(a)(i) & (ii) •  Prepare a valuation roll for all properties in the Municipality determined in terms of Section 30(3) •  Sign and certify the valuation roll •  Submit the valuation roll to the Municipal Manager within the prescribed period

  6. THE FUNCTIONS OF THE MUNICIPAL VALUER – Section 34 (cont.) • Processing of objections (Section 51) • Consider objections (Information Section 41 and 42) and Regulations • Decide objection on facts/submissions • Adjust/add to the Roll in accordance with the decisions taken • Notify every person in writing (Section 53) • Valuer’s decision • Adjustments made • Section 52 • Written reasons ( See fair admin process herein later)

  7. THE FUNCTIONS OF THE MUNICIPAL VALUER (cont.) •  NB: Attend every meeting of an Appeal Board when that Appeal Board hears an appeal against decision of the valuer or reviews a decision of that valuer •  Prepare supplementary valuation roll, whenever necessary •  Generally provide administrative support incidental to the valuation roll • Section 41 – Inspection of property. •  The Municipal Valuer may inspect property for the purpose of valuations (07h30 – 19h00)

  8. THE FUNCTIONS OF THE MUNICIPAL VALUER (cont.) •  Section 42 – Access to Information read with Section 44 – Protection of Information (At any given time – no period prescribed by Act) • The Municipal Valuer may require owner, tenant, occupier or agent of owner access to documentation or information for the purpose of valuing the property •  Make extracts from those documents or request further information in writing or ordering to enable valuation of property •  Penalty [Section 42(2)] – •  If reliance is placed on document not submitted at Appeal Board hearing; • Cost order in terms of Section 70 •  Failure to provide – • Unnecessary burden on functions of Municipal Valuer • Appeal Board

  9. REGULATIONS – MINIMUM INFORMATION TO BE SUBMITTED WITH OBJECTION • Chapter 5(1) •  The manner of lodging an objection must be in the format as contained in Annexure 4 of the Regulations •  Minimum information to be captured for lodging an objection to a specific property in the valuation roll •  The objector/appellant must furnish the Municipal Valuer with comprehensive and extensive information pertaining to the property

  10. REGULATIONS – MINIMUM INFORMATION TO BE SUBMITTED WITH APPEAL • Chapter 6 – Annexure 5 •  Appellant must submit minimum information as contained in Annexure 5 when lodging an appeal to the Valuation Appeal Board against a decision of Municipal Valuer •  Section 7, declaration warning referred to in Section 42(2) for non disclosure of information •  Section 70, Valuation Appeal Board may issue a cost order if of the view that a failure provide unnecessary burden on the functions - •  Of the Board • Of the Municipal Valuer

  11. POWERS OF THE VALUATION APPEAL BOARD RE ACCESS TO INFORMATION • Section 73 Stipulates: •  A member of or any other person authorised by the Appeal Board may: •  Require the owner, tenant or occupier of a property, which is the subject of an appeal or review or the agent or the owner to give the member or authorised person access to any document or information in possession of the owner, tenant, occupier or agent, which the member or authorised person reasonably requires for the purpose of the appeal or review

  12. POWERS OF THE VALUATION APPEAL BOARD RE ACCESS TO INFORMATION (cont.) • Make extracts from such document/information •  In writing require the owner, tenant, occupier of the property or agent of the owner to provide the member of or authorised person either in writing or orally with particulars regarding the property which the member or authorised person reasonable requires for the purpose of the appeal or review • Section 74 – Protection of Information •  Non disclosure of information obtained by the Municipal Valuer and/or Board Member

  13. POWERS OF THE VALUATION APPEAL BORD RE ACCESS TO INFORMATION •  Section 75 – Powers of an Appeal Board •  An appeal Board may by notice summon a person to appear before it; •  To give evidence or •  To produce a document available to that person and specified in the summons •  Call a person present at a meeting of an Appeal Board, whether summoned or not •  To give evidence; or •  To produce document in that person’s custody; and •  Retain document produced for reasonable period

  14. SECTION 75 – POWERS OF APPEAL BOARDS • It is clear from the above quotes sections that the Appeal Board is entitled to summons any person (Municipal Valuer, Objector; appellant) – •  To appear before the Board •  To give evidence; and •  To produce document in that person’s custody • If it is deemed necessary for the fair and just adjudication of the appeal/review •  Parties appearing before the Board is therefore at liberty to make use of the above Sections to obtain information to: •  Arrive at a fair valuation of the subject property by the Municipal Valuer •  Obtain sufficient reasons or additional information to successfully prosecute his/her appeal

  15. SECTION 75 – POWERS OF APPEAL BOARDS (cont.) •  Each case individually considered on merit •  Process not to be abused by either parties •  Penalty cost order where appropriate as stipulated in Section 42(2) read with Sections 70

  16. Common mistakes pertaining to objection and appeal process experienced by the Board in practise • Municipal Valuer/Objector/Appellant – •  Submission and acceptance of incomplete objection and appeal form •  Acceptance of late objection and/or appeal form •  Lack of resources to do proper valuation •  Subject property not inspected (mass valuations) – condition, locality •  Subject property and/or category wrongly identified •  Incorrectly valued •  No motivation or proper motivation as to how arrived at Valuation

  17. Common mistakes pertaining to objection and appeal process experienced by the Board in practise (cont.) •  No request for information or lack of information submitted by objector/appellant • Frivolous appeal/merits of appeal not addressed by appellant • Lack of Jurisdiction (VAB) - Rates issue - Rebates •  Lack of consultation between the respective parties – to resolve issue - Save time

  18. THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT, ACT NO 3 OF 2000 • The Constitution of the RSA Act 108 of 1996. • Section 32(1) of the final Constitution of the RSA stipulates that everyone has the right to access to any information held by the State and any information that is held by another person and is required for the exercise of protection of any rights •  The State also include Local Government/Municipality •  Just administrative action. Section 33(1) of the Constitution of the RSA 108 of 1996 stipulates: •  Everyone has the right to administrative action that is lawful, reasonable and procedurally fair and everyone whose rights have been adversely been affected by administrative action has the right to be given written reasons •  The Promotion of Administrative Justice Act 3 of 2000 (paja) was enacted and commence on the 30th of November 2000 and section 4 and 10 of the said Act commence on 31st July 2002 

  19. THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT, ACT NO 3 OF 2000 (cont.) •  In the preamble of the Act it is clearly stated: • To give effect to the right administrative action that is lawful, reasonable and procedurally fair • The right to written reasons for administrative action as contemplated in Section 33 of the Constitution of the RSA •  Section 3 of the Act makes provision for procedurally fair administrative action affecting any person •  The Act makes provisions for reasons for administrative actions. •  Section 6 makes provision for judicial review of administrative action and regulations on fair administrative procedures, as published in Government Notice R1022 in Government Gazette 23674 on 21st of July 2002, as amended by Government Notice R614 in Government Gazette 227719 of 27th of June 2005 makes provision for the request for reasons

  20. CASELAW IN RE ADMINISTRATIVE JUSTICE • Masetlha v President of the RSA and another 2008 (1) BCLR 1 (CC); • Moseneke DCJ held on •  Paragraph 23 as follows: “At the general level, the right of access to information is entrenched in the first instance, by the Constitution itself. Section 32 of the Constitution confers on everyone the right of access to any information held by the State or by another person that is required for the exercise or the protection of any rights.” •  Paragraph 25: “Ordinary Courts would look favourably on a claim of litigant to gain access to documents or other information reasonably required to assert or protect a threatened right or to advance a cause of action. Courts takes seriously the valid interest of a litigant to be placed in a position to present it’s case fully, during the course of litigation.”

  21. CASELAW IN RE ADMINISTRATIVE JUSTICE (cont.) •  Courts strive to afford a party a reasonable opportunity to achieve its purpose in advancing its case. •  Adequate opportunity to prepare and present one’s case is a time honoured part of a litigating party’s right to a fair trial. •  Paragraph 26: “In the context of civil litigation, the right of access to information which is under the control of another litigating party is regulated by discovery procedures applicable in various Courts.” •  It has long been recognised that adequate but equitable discovery procedures form an indispensable and integral part of a fair civil trial.  • A Civil Litigant must disclose his/her case and is under duty to disclose all documents which may assist his/her opponent – Chaskalsonet al Constitional Law of R.S.A.

  22. FUNCTIONS OF THE VALUATION APPEAL BOARD – WHAT TO EXPECT • A properly constituted Board (Creature of Statute) •  Evidence under oath or confirmation •  A right to information •  A right to be heard (Audi alterampartem rule) •  A right to a fair hearing • Section 34 of the Constitution of RSA • Right to fair admin. Justice • Section 34 places constitutional criteria on the operation of other adjudicating fora (Tribunal/Appeal Boards) in addition to courts

  23. FUNCTIONS OF THE VALUATION APPEAL BOARD – WHAT TO EXPECT (cont.) • A right to call witnesses • A right to address the Court • A right to questions/cross examination •  Due diligence by the Board. •  A ruling by the Board within 30(thirty) days •  A right of review of the Board’s decision

  24. THE ONUS OF PROOF IN RESPECT OF AN APPEAL BEFORE THE VALUATION APPEAL BOARD, ONUS OR NO ONUS? • Definition  • The burden or onus of proof in its ordinary sense is a metaphorical expression for the duty which one or other of the parties has of finally satisfying the Court that he/she is entitled to succeed on his/her claim or defence, whichever it may be - The SA Law of Evidence: Zeffert et al. •  Onus as per the appealed ordinance 11 of 1977 Section 15(12) • Any entry recorded in the provisional valuation roll shall be deemed by the valuation Court to be correct until the contrary is proved •  The above presumption/onus was not included by the legislator in the MPRA •  Currently no precedent (case law) or whether there exist and rest an onus or not on the appellant before the VAB

  25. THE ONUS OF PROOF IN RESPECT OF AN APPEAL BEFORE THE VALUATION APPEAL BOARD, ONUS OR NO ONUS? (cont.) • Decided cases (historically) •  Lambert v Director of Sensus 1956 (3) SA 452 T on 455 a – b (notes): “The rules of evidence relating to the incidents of proof are formulated in relation to legal proceedings, properly so-called, and there is no justification for the extension of these rules to enquiries held by a non judicial body less the statue under which the body operates creates presumptions, expressly or impliedly operating against or in favour of a party to the enquiry.” •  In Backhouse v Race Classification Board 1967(3) SA 114 (d) on 116 (f) to 117(a) (notes) the Judge asked the question as to what the Board must then do if there is no onus on either of the parties. He remarks as follows: “In such a case it does not seem to me that a Court would be acting illegally or wrongly if it base its decision simply upon purely equitable considerations, thereby giving effect to simple justice between man and man.”

  26. THE ONUS OF PROOF IN RESPECT OF AN APPEAL BEFORE THE VALUATION APPEAL BOARD, ONUS OR NO ONUS? (cont.) • In Jacobs v Minister of Agricultural 1972 (4) SA 68 (W) on 628 Judge Coleman held as follows (notes): “Even if the claim relates to a value of the land alone, I do not see how a Court can discharge it’s duty in all cases if the useful instrument of onus is unavailable to it. What if there is conflicting evidence and it is equally balanced. (What if both parties attended a trial, but neither elects to present any evidence?).” •  A valuer can go in search of information, and apply his expert knowledge to it, but a Court is not expected to do the former and is not qualified to do the latter 

  27. THE ONUS OF PROOF IN RESPECT OF AN APPEAL BEFORE THE VALUATION APPEAL BOARD, ONUS OR NO ONUS? (cont.) • The general rule pertaining to who should bare the onus of proof is that the onus rests upon the party who wishes to alter the status quo, that is the one who apply for a remedy •  The instance of the onus of proof is a matter of substantive law  • Substantive Law is the statutory or written law, that defines rights, duties and responsibilities

  28. THE ONUS OF PROOF IN RESPECT OF AN APPEAL BEFORE THE VALUATION APPEAL BOARD, ONUS OR NO ONUS? (cont.) Notes: •  It follows from the substantive nature of the onus that it would be quite impossible for anyone to present and an exhaustive litany of all the rules of substantive Law that lay down who bares the onus on every given issue. If you want to know who bares the onus, one must look to the substantive Law.

  29. THE ONUS OF PROOF IN RESPECT OF AN APPEAL BEFORE THE VALUATION APPEAL BOARD, ONUS OR NO ONUS? (cont.) Notes: (cont.) • Where the rule about the onus that has been lay down at common or by statute has been judicially determined there is a precedent and the matter is governed by the appropriate principals of stare decisis. But what if there is no judicial decision and what if the common Law or statue is silent on the matter? There must necessarily be some way to determine the question of who bares the onus. More over it is one thing to say there is a precedent to quote. Quite another to say that it correctly reflects what the Law should be?

  30. THE ONUS OF PROOF IN RESPECT OF AN APPEAL BEFORE THE VALUATION APPEAL BOARD, ONUS OR NO ONUS? (cont.) Notes: (cont.) • If a judicial officer is inclined to conclude that the case for the Plaintiff is just about as probable as the Defendant’s case, he or she should resist the impulse to seek the refuge of the onus, but should instead rely on experience of a try of fact. A gut feeling “educated intuition”, and any other relevant factors such as perhaps statistically, probability and ask himself or herself this: If I had to find for one or other of these parties and were free of the duty to furnish reasons for my finding what would I do. • Such an approach might seem to be unscientific and imprecise but there is no reason in our view to believe that it will not achieve better results than any mechanical device, however carefully crafted it might be – Zeffet et al.

  31. Conclusion • Currently no precedent (decided case) pertaining to onus – MPRA • Traditionally – Substantive Law and precedents placed on onus on Appellant • Old ordinance 11/1977 – Onus Section 15(12) • Repealed in toto by MPRA • In General: • Onus rests on the Party who wished to alter the status quo • The Appellant in the context of an Appeal before the VAB, disputes the value placed on the subject property by the Municipal Valuer • The Appellant must therefore, persuade the VAB on a balance of probabilities that his value is correct • If the Scale of Evidence is neutral - Onus decisive

  32. “Take time to gather up the past, so that you will be able to draw from the experience and invest them in the future.” -Jim Robn

  33. QUESTIONS?/DISCUSSION

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