Court name
High Court of eSwatini

Mbabane Club v City Council of Mbabane () [1998] SZHC 19 (02 February 1998);

Law report citations
Media neutral citation
[1998] SZHC 19









1


IN
THE HIGH COURT OF SWAZILAND


a:GolfCourse


The
Mbabane Club


vs


City
Council of Mbabane


Coram S.W.
Sapire A

C
J


S
Maphalala A

J


For
Applicant Mr. Perry


For
Respondent Mr. L. Khumalo


Judgment


(2/2/98)


The
Mbabane Club, the applicant in this matter, has applied for an order
setting aside the decision of the City Council Mbabane dated 5th
August, 1997 in terms of which it refused a full exemption from the
payment of rates in respect of portion 114 of farm 2. The facts are
largely not in dispute and are these:-


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a:GolfCourse


The
applicant is a voluntary association which operates in terms of a
constitution and in terms of which it has powers to sue and be sued
through its trustees.


The
respondent is the City Council of Mbabane established under the Urban
Government Act No. 8 of 1969 with powers to levy rates on land and
buildings situate within the urban area of Mbabane.


The
property on which the Golf Course is situated lies within the urban
area of Mbabane, is leased from the Government of Swaziland for a
period of 60 years expiring on the 28th March, 2013. The terms on
which the Applicant has the right to use the property as a golf
course are sat forth in a notarial deed of lease registered in the
Deeds Registry as Crown lease no. 1 of 1959. A copy of the lease is
annexed to the founding affidavit Whether this is a true lease is
open to some doubt, and may in fact be a servitude of usus. The point
was not raised by either of the parties and I do not find myself
called upon to decide this question in view of the decision to which
I have come.


The
rent payable by this applicant to the Government in terms of the
lease is a nominal sum of one shilling per annum, (since
decimalisation this is now 10 cents) and the total rental for the
full period of the lease is three pounds sterling.


In
terms of clause 3 of the lease the applicant is at its own cost to
maintain the leased area as a Golf Course and shall not use it for
any other purpose.


Clause
4 of the lease obliges the applicant to allow the public to continue
to enjoy all rights to which they may be entitled under the Urban
Area


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a:GolfCourse


regulations.
It is not clear from the papers what these rights are. The applicant
maintains that it has honoured and continues to honour the
obligations imposed on it in terms of clause 3 and 4.


In
terms of clause 5 the applicant is obliged to provide gates and
turnstiles in any fences it erects on the boundaries of the property,
to promote access to and egress from the Golf Course and to enable
animals to be driven across the Golf Course. This obligation too, has
been complied with by the applicant. A further obligation imposed on
the applicant is that to allow the Government to build roads across
the Golf Course and to use any portion thereof as a landing ground
for light aircraft. Although no roads have been built across the Golf
Course, one fairway was for a long period used as a landing ground
for aircraft. This obligation still exists but aircraft no longer
land there because conditions now make it unsafe to do so.


The
applicant points out that members of the public who are not members
of the Mbabane Club have without charge continually and on daily
basis traversed the whole extent of the Golf Course on foot, not only
when golf is being played but even during golf competitions. The
pedestrian traffic has steadily increased and many school children
attending school in the vicinity of Veni cross the Golf Course twice
every week day during school terms. These children seem to enjoy a
right of passage recognised by golfers engaged in a round of golf


Non-members
are also permitted to play golf on the Golf Course but a fee is
requested of them. This fee is regarded as a contribution to the
upkeep of the Golf Course. It is well known that the Golf Course is
used without charge by the public for other activities such as
walking, the exercising of dogs and from time to time horse-riding.
It is not unknown according to the deponent to the founding affidavit
for cattle to graze on the Golf Course although the keeping of cattle
in the urban area of Mbabane has now been prohibited.


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a:GolfCourse


The
respondent is obliged and has been obliged in terms of the Rating
Acts applicable from time to time, to prepare a list of exempted
properties, on which rated may not be levied.

The
deponent to the founding affidavit claims that no such list exists
and it is therefore impossible to say whether the land on which the
Golf Course has been built is exempt from rates. This allegation has
not been denied and no list has in fact been produced. It is safe to
assume that the Respondent has not complied with its obligation in
this respect.


As
the lease is for a period of over 50 years the Mbabane Club, as a
lessee, is by definition the owner of the property for the purposes
of the Rating Act as set out in Section 2 thereof and if the property
is rateable it is the applicant which has to pay any rates properly
levied.


The
respondent has levied rates on the Golf Course for the years
1994-1995, 1995-1996, 1996-1997 and also for 1997-1998. A substantial
amount is claimed by the respondent in respect of arrear rates


The
present application is in effect for a declaration that the property
in question is non-ratable and for an order setting aside the
imposition of the rates. Such an application is brought in terms of
the rights afforded the applicant in terms of Section 9 (6) of the
Rating Act No. 4 of 1995.


On
the evidence which has been placed before the Court there can be
little doubt that the property in question is a public place in terms
of the definition in Section 2 and in terms of Section 7(1) of the
Rating Act. The property is a park, recreation ground or open space
in the area of an urban authority to which the public has a right of
use without charge. Any one may enter upon the property in question
and use it for any purpose without charge. As far as the playing of
golf is concerned there is nothing to show that the fee paid by


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a:GolfCourse


members
and visitors is a charge for access to the property. Indeed on the
evidence available, if any individual wished to go upon the property
and strike golf balls, he would not necessarily incur a charge for so
doing. The fees charged by the club are voluntarily paid by the
members and visitors as contributions to the up keeping of the course
and for use of the facilities of the club. There is nothing to show
that either members or visitors would not be allowed to play if they
did not pay the charge. It is true mat other facilities of the club
may be barred to them and such persons would not find themselves in
any scheduled times for tee off, nor would they be able to enjoy the
conviviality of the nineteenth whole (really the tenth hole as it is
a nine hole course). The crucial point is that the applicant is not
entitled to exclude anyone from access to the property.


The
Respondent does not seriously contend that the property as a whole is
not a public place as defined, but bases its justification for the
imposition of rates on the argument that it is not an exemptible
public place because it not used exclusively throughout the year for
public purposes I must confess that I have difficulty in
understanding this contention. The evidence clearly shows that the
public have access free of charge, to the property at all times..
This applies to the applicants members (who are part of the public in
general) and to non members alike


The
fees paid by golfers, members and non members alike, must be seen not
as a charge for access to the property, but as an obligation
voluntarily accepted by those who use the course to contribute to the
costs of maintaining the course for the benefit of all who wish to
have the facility of a golf course


The
"green fee" is not for the profit of any member, and does
indeed

not
cover the cost of maintaining the course. There is nothing to show
that the green fee is anything other than a contribution to the
defraying of the maintenance cost.


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a:GolfCourse


For
these reasons I have come to the conclusion that the property is not
on the evidence before the court, rateable. I would therefore grant
an order in terms of prayers 2, 4, and 5, of the Notice of motion


S
W Sapire


Acting
Chief Justice


I
agree


S
Maphalala
A

J


An
order is therefor made it terms of prayers 4 and 5 of the Notice of
Motion,