The City of Cape Town and Minister of Provincial and Local Government v Anita Marie Robertson and Guy Trevor Robertson

The Robertsons owned a property in Camps Bay, Cape Town, purchased in 1969 for R7,250. By 2002, the City of Cape Town valued the property at R1.7 million under a new metropolitan-wide general valuation. Their property rates increased from R8,203.44 to R16,321.80 per year (over 100% increase). The Robertsons challenged the validity of the provisional valuation roll and the City's power to levy rates based on it. They argued: (1) the Property Valuation Ordinance 1993 (PVO) had lapsed as it came into force after the interim Constitution commenced; (2) the City was not a "local authority" under the PVO; and (3) the City could not levy rates based on a provisional (uncertified) valuation roll. The City sought remedial national legislation (section 21 of the Local Government Laws Amendment Act 51 of 2002) to address perceived legal vulnerabilities. The Cape High Court upheld two of the Robertsons' grounds, declared section 21 unconstitutional for procedural defects (failure to comply with sections 154(2) and 229(5) of the Constitution), and suspended the invalidity for one year.

• Whether the Property Valuation Ordinance 1993 (C) was a law 'in force' at the commencement of the interim Constitution
• Whether the City of Cape Town is a 'local authority' for purposes of the PVO
• Whether the City has power to levy rates based on a provisional (uncertified) valuation roll
• Whether section 21 of the Local Government Laws Amendment Act 51 of 2002 is unconstitutional for failure to comply with section 154(2) (publication for public comment) and section 229(5) (consultation with Financial and Fiscal Commission) of the Constitution
• The constitutional status and powers of municipalities under the 1996 Constitution
• Whether there was a casus omissus (legislative gap) requiring remedial legislation

Appeal upheld. The High Court's orders declaring section 21 of the Local Government Laws Amendment Act unconstitutional and restraining the City from levying rates based on the provisional valuation roll were set aside. The application was dismissed. Each party to bear its own costs in both courts.

The ratio decidendi is: (1) Under the 1996 Constitution, municipalities exercise "original" constitutional powers derived directly from the Constitution (particularly section 229(1)(a) regarding property rates), not merely delegated or subordinate powers from provincial or national legislation. (2) Legislation that was enacted but not yet operational when the interim Constitution commenced was a law "in force" within the meaning of sections 229 and 235(6) of the interim Constitution. (3) When interpreting the powers and functions of a sphere of government entrenched under the Constitution, courts must start with the Constitution itself, not subordinate legislation. (4) The phrase "subject to any other law" in empowering legislation means that exercise of powers must comply with procedures prescribed by other laws, but does not render those powers delegated or derivative. (5) Transitional provisions in sections 93(4) and (5) of the Local Government: Municipal Structures Act properly preserve and extend to superseding municipalities the powers of their predecessors under section 10G of the Transition Act. (6) Section 14(1) of the Structures Act establishes that superseding municipalities succeed to the rights, functions, obligations, and legal regime (including applicable legislation) of disestablished municipalities; this is not limited to domestic matters. (7) Nothing in the Constitution, section 10G, or the PVO prohibits a municipality from levying rates based on a provisional valuation roll; final certification is not a prerequisite for rating. (8) The Constitutional Court has discretion under section 172(2) not to confirm an order of invalidity where doing so would have no practical effect and no compelling public policy requires determination, particularly in procedural/manner-and-form challenges to legislation.

Moseneke J made several important observations obiter: (1) The Court observed the fundamental transformation from parliamentary sovereignty (where municipalities were "creatures of statute") to constitutional supremacy where local government is constitutionally entrenched. The judgment traced the historical evolution through pre-interim, interim, and final phases of local government transformation. (2) The Court noted that the Constitution has "enhanced rather than diminished" the autonomy of local government compared to the interim Constitution, with the First Certification Judgment confirming that municipalities have "more autonomy" sourced in the Constitution itself. (3) The Court emphasized that sections 41(e) and (g) protect the "geographical, functional and institutional integrity" of local government, and that section 151(3) gives municipalities the right to govern local affairs "on its own initiative" subject to permitted legislative constraints. (4) The Court observed that the flexible valuation scheme in the PVO (including supplementary and interim rolls) is designed for a "responsive process open to adjustments" that serves both municipal fiscal needs and fairness to property owners in a "dynamic property climate." (5) The Court noted that in exercising discretion whether to decide a constitutional matter referred for confirmation, relevant factors include not only practical effect and public policy, but also "the nature of the constitutional challenge" – with procedural/manner-and-form challenges warranting particular respect for legislative process. (6) The Court commented on the transformative purpose of a single tax base and ad valorem rating system to address historical material neglect and exclusion of certain areas, noting this is "integral to the effective transformation towards non-racial local governance." (7) The Court declined to express a view on whether a finding of casus omissus is appropriate "in light of the interpretive duties of a court under the Constitution," suggesting possible tension between the traditional casus omissus doctrine and constitutional interpretation principles.

This landmark judgment fundamentally reoriented South African law on the constitutional status of municipalities. The Court held that municipalities under the 1996 Constitution exercise "original" constitutional powers, not merely delegated powers from superior legislation, marking a decisive break from the pre-1994 doctrine of municipalities as creatures of statute. The judgment established that: (1) municipalities derive powers directly from Chapter 7 and section 229(1) of the Constitution; (2) the proper interpretive starting point for municipal powers is the Constitution itself; (3) section 40(1) entrenches local government as a distinctive, interdependent sphere (not tier) of government; and (4) municipal conduct is not necessarily invalid merely because no statute expressly authorizes it. The case clarified the transitional legal framework for the transformation of local government and affirmed the fiscal autonomy of municipalities. It also addressed the doctrine of casus omissus in constitutional interpretation and the Court's discretion to decline deciding constitutional challenges that would have no practical effect (section 172(2)(d)). The judgment is foundational for understanding municipal powers, constitutional supremacy over parliamentary sovereignty, and the three-sphere model of cooperative governance in South African constitutional law.