REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case Number: 2023-095869
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES ~
8 April 2025 _ _
DATE SIGNATURE
In the matter between:
INDEPENDENT INSTITUTE OF
EDUCATION (PTY) LTD
ADVTECH LTD
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
MUNICIPAL MANAGER OF THE CITY OF
JOHANNESBURG METROPOLITAN MUNICIPALITY
MINISTER OF CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS
MINISTER OF FINANCE
MEMBER OF THE EXECUTIVE COUNCIL FOR
EDUCATION, GAUTENG PROVINCE First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent

MEMBER OF THE EXECUTIVE COUNCIL FOR
CO-OPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS, GAUTENG PROVINCE
AND
In the matter between:
INDEPENDENT SCHOOLS ASSOCIATION OF
SOUTHERN AFRICA NPC
THE TRUSTEES FOR THE TIME BEING OF THE
SPARROW SCHOOLS EDUCATIONAL TRUST
BELLAVISTA SCHOOL NPC
CITYKIDZ PRE AND PRIMARY SCHOOL NPC
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
MUNICIPAL MANAGER OF THE CITY OF
JOHANNESBURG METROPOLITAN MUNICIPALITY
SOCIAL DEVELOPMENT DEPARTMENT OF THE CITY
OF JOHANNESBURG METROPOLITAN MUNICIPALITY
MINISTER OF CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS
MEMBER OF THE EXECUTIVE COUNCIL FOR
CO-OPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS, GAUTENG PROVINCE
MEMBER OF THE EXECUTIVE COUNCIL FOR
EDUCATION, GAUTENG PROVINCE
MINISTER OF FINANCE Sixth Respondent
Case No: 13361/2023
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
2
AND
In the matter between:
CURRO HOLDINGS LTD
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
MUNICIPAL MANAGER OF THE CITY OF
JOHANNESBURG METROPOLITAN MUNICIPALITY
MINISTER OF CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS
MEC FOR CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS: GAUTENG PROVINCIAL
GOVERNMENT
MINISTER OF FINANCE
MINISTER FOR GAUTENG PROVINCE TREASURY:
GAUTENG PROVINCIAL GOVERNMENT
MEC FOR EDUCATION: GAUTENG PROVINCIAL
GOVERNMENT
In the matter between:
AFRIFORUM Case No: 120464/2023
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Case No: 128616/2023
Applicant
3
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
MUNICIPAL MANAGER OF THE CITY OF
JOHANNESBURG METROPOLITAN MUNICIPALITY
MINISTER OF CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS
MINISTER OF BASIC EDUCATION
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION, GAUTENG PROVINCE
MINISTER FOR HIGHER EDUCATION & TRAINING First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Judgment handed down electronically by circulation to the parties' legal
representatives via email, and release to SAFLII and by uploading it on Caselines.
The date and time for hand down is deemed to be 10:00 on 8 April 2025.
Local authority -Finance -Budgets -Approval -Where public participation in
adoption of budget inadequate -Legality -Constitutional and statutory framework
dealing with budget approval examined -Nature and extent of obligations on
municipalities to ensure public participation in process considered -Applicable
principles in assessing compliance with such obligations set out -Court concluding
municipality falling short of requirements --Court ordering compliance with public­
participation obligations in preparation and tabling of future budgets insofar as
privately owned properties used for educational purposes were in terms of the
Municipality's Rates Policy and By-Law were categorised as business and
commercial.
JUDGMENT
MUDAU, J:
[1] These matters have been specially allocated for hearing. The matters concern
four separate review applications which have been consolidated for the purpose
of a joint hearing in terms of an order by this Court per Unterhalter J (as he then
was) dated 26 April 2024. All four applications challenge the City of
Johannesburg Metropolitan Municipality's ("the City") 2023/2024 Rates Policy
and By-Law, which came into effect on 1 July 2023, based on the principle of
4
legality and various constitutional grounds insofar as privately-owned properties
used for educational purposes may in terms of the City's Rates Policy and By­
law only be allocated under "business and commercial" (the impugned
decisions). The applicants also seek certain ancillary and alternative relief. The
applications are only opposed by the first respondent, the City. The City is a
Municipality as contemplated in section 2 of the Local Government: Municipal
Systems Act1 (the "Municipal Systems Act").
[2] The matters are:
a. The Independent Institute of Education (Pty) Ltd and Another v City of
Johannesburg Metropolitan Municipality and Others (Case number:
2023/095869) (the "IIE Application"). The first applicant in the IIE Application
is The Independent Institute of Education (Pty) Ltd, a private company duly
incorporated under the laws of the Republic of South Africa. The second
applicant, Advtech Ltd, is a public company duly incorporated under the
laws of the Republic of South Africa. IIE is a wholly owned subsidiary of
AdvTech. IIE and AdvTech bring this application acting in its own interest,
and in the interest of the children enrolled at its schools and in the public
interest.
b. AfriForum NPC v City of Johannesburg Metropolitan Municipality and
Others (Case Number: 2023/128616) (the "AfriForum Application").
AfriForum NPC is a non-profit company registered under registration
number 2005/042861/08 in terms of the company laws of the Republic of
South Africa and is also registered as a non-governmental organisation
(NGO). AfriForum brings the application in terms of section 38(a) of the
Constitution2 in its own interest, the interests of its members by in terms of
section 38(e) and the public interest, as contemplated in section 38(d) of the
Constitution.
c. Curro Holdings Ltd v the Council of The City of Johannesburg Metropolitan
Municipality and 5 Others (Case no: 23/120464) (the "Curro Application").
1 32 of 2000.
2 Constitution of the Republic of South Africa, 1996 ("the Constitution").
5
Curro Holdings is a public company with limited liability duly registered and
incorporated in terms of the company laws of the Republic of South Africa.
d. Independent Schools Association Southern Africa NPC and Others v City of
Johannesburg Metropolitan Municipality and Others (Case number:
2023/133361) (the "ISASA Application"). ISASA is a non-profit, voluntary
association of independent schools in the Southern African region. It prides
itself as the oldest and largest association of independent schools in
Southern Africa, with 847 of these member schools located in South Africa.
ISASA brings this application in its own interest, as contemplated in section
38(b) of the Constitution, but also in the public interest as contemplated in
section 38( d) of the Constitution.
[3] The second applicant in the ISASA application are The Trustees for The Time
Being of Sparrow Schools Educational Trust ("Sparrow School"). Sparrows
School is a non-profit independent school in Auckland Park, Johannesburg.
Sparrow School serves learners with special educational needs from
economically disadvantaged communities. Sparrow School is recognised as a
Public Benefit Organisation ("PBO") as defined in Section 30(1) of the Income
Tax Act.3
[4] The third applicant in the ISASA application is Bellavista School NPC ("Bellavista
School"), a registered Non-Profit Organisation ("NPO") with PBO status in terms
of the Income Tax Act. Bellavista School is an independent remedial school that
serves 270 learners with special educational needs, including children with, inter
alia, autism spectrum disorder as well as developmental delays.
[5] The fourth applicant in the ISASA application is Citykidz Pre and Primary School
NPC ("CityKidz School"), a non-profit pre-primary and primary independent state­
subsidised school that serves learners from lower income families in the
Johannesburg CBD.
[6] Three of the applicants, except Curro, contend that the City was entitled to create
the category of "education" in which their properties must be allocated, and the
3 58 of 1962 as amended.
6
City's failure to do so tainted the whole process with irrationality. Distinct from
the other applications, Curro contends that meaningful engagement with
stakeholders is needed to address the question of the categorisation of
independent schools and the rates to be levied thereon, which in this instance
did not materialise. Curro seeks a review of the impugned decisions on account
of being irrational, arbitrary and unreasonable. Curro seeks to have the
impugned decisions declared invalid on the basis that they violate section
229(2)(a) of the Constitution and section 19(1)(c) of the Local Government:
Municipal Property Rates Act ("MPRA").4 Curro seeks an order directing the City
to consult and undertake the necessary public participation process before
categorising independent schools.
[7] Curro also seeks an order declaring the differentiation between public and
independent schools for the purpose of levying property rates, an impermissible
differentiation under section 19(1)(c) of the MPRA. The rate, so debated and
formerly approved by the municipal council, lies at the heart of the public
consultative process that is debated at the necessary public hearings, and is
thereafter considered by a municipal council.
[8] The City opposes these applications. It contends that the impugned decisions
are not justiciable in this Court. In this regard, the municipality relies on the
decision of, inter alia, the Supreme Court of Appeal in Nokeng Tsa Taemane, 5
where it was held that the power to levy rates on property for services provided
by a municipality concerns "political and inter-governmental issues, evidently
specialist areas involving policy issues" outside the expertise of courts.
Preliminary issue: Mootness
[9] The City contends that the applicants' review of the City's 2023/24 Rates Policy
has been rendered moot by its Rates Policy, which came into effect on 1 July
2024. The City raises this argument for the first time in its heads of argument.
The factual basis for the City's contention is that the rates policy is part of the
4 6 of 2004.
5 Nokeng Tsa Taemane Local Municipality v Dinokeng Property Owners Association [201 0] ZASCA
128; [2011] 2 All SA 46 (SCA) at para 8.
7
City's budget which lasts for one financial year. As the City's financial year end,
in tandem, the budget for that year, which is challenged in these proceedings
ended on 30 June 2024, the application has become moot. This issue need not
detain this Court longer than necessary.
[1 OJ It is trite that a matter is moot if it no longer raises an "existing or live controversy"
between the parties, such that this Court's order will have no practical effect or
result.6 The applicants in the various matters seek to set aside, inter alia, the City'
2023/2024 rates policy in terms of section 172(1) of the Constitution. As of
necessity, this calls for the exercise of a judicial discretion. In the matter of Islamic
Unity Convention v Independent Broadcasting Authority and others7 ("Islamic
Unity Convention") the Constitutional Court stated:
"[1 O] A Court's power under s 172 of the Constitution is a unique remedy created by
the Constitution. The section is the constitutional source of the power to declare law or
conduct that is inconsistent with the Constitution invalid. It provides that when a Court
decides a constitutional matter it must declare invalid any law or conduct inconsistent
with the Constitution. It does not, however, expressly regulate the circumstances in
which a Court should decide a constitutional matter. As Didcott J stated in J T
Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others:
'Section 98(5) admittedly enjoins us to declare that a law is invalid once we have found
it to be inconsistent with the Constitution. But the requirement does not mean that we
are compelled to determine the anterior issue of inconsistency when, owing to its wholly
abstract, academic or hypothetical nature should it have such in a given case, our going
into it can produce no concrete or tangible result, indeed none whatsoever beyond the
bare declaration.' [Footnote omitted].
[11] In determining when a Court should decide a constitutional matter, the
jurisprudence developed under s 19 (1)(a)(iii) will have relevance as Didcott J pointed
out in the J T Publishing case. It is however also clear from that judgment that the
constitutional setting may well introduce considerations different from those that are
relevant to the exercise of a Judge's discretion in terms of s 19 (1) (a) (iii)."
6 Section 16 (2) (a)(i) of the Superior Courts Act, 10 of 2013; see also National Coalition for Gay and
Lesbians Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1
CC; 2000 ( 1) BCLR 39 at para 21 and AB and another v Pridwin Preparatory School and Others [2020]
ZACC 12; 2020 (9) BCLR 1029 (CC); 2020 (5) SA 327 (CC) at para 50.
7 [2002] ZACC 3; 2002 (5) BCLR 433; 2002 (4) SA 294 (CC).
8
[11] The City is wrong. It is not correct that there is no longer a live controversy
between the parties, nor is it correct that the constitutionality of the City's
2023/2024 rates policy has been rendered academic or hypothetical and of no
direct, practical effect on the parties. As the applicants point out, the City has
charged and collected rates from its ratepayers, based on what they allege is its
unconstitutional and unlawful rates policy. In the event of a declaration in the
applicants' favour, this is an ongoing wrong which continues to exist even after
the lapse of the City's financial year. It is trite that under s 172( 1 )(b) of the
Constitution, a court deciding a constitutional matter has wide remedial powers.
It is empowered to make "any order that is just and equitable".8 Significantly, the
City's 2023/2024 rates policy clearly provides that the property rates on
properties zoned and used for educational purpose but privately owned under
the category of "Business and Commercial" will be phased in over a period of
four years, specifically the 2023/2024, 2024/2025, 2025/2026 and 2026/2027
financial years.
[12] Our jurisprudence is solid and well established in this regard. In The Thaba
Chweu Rural Forum and others v The Thaba Chweu Local Municipality and
others9 some years after the application was first launched, the Supreme Court
of Appeal upheld an appeal and declared the rates policies unlawful and invalid.
In determining a just and equitable remedy in terms of section 172(1)(b) of the
Constitution, the Supreme Court of Appeal set aside the Thaba Chweu
municipality's rates policies for the 2009-2018 years albeit to a limited extent and
ordered the municipality to credit the appellants' members accounts which were
levied and paid municipal rates in excess of the legally permissible rate limit of
the rates chargeable. Recently, the Constitutional Court in Ekapa Minerals (Pty)
Ltd and anotherv Sol Plaatje Local Municipality and Others10 made a substitution
order in place of that of the High Court inter alia, in the following terms:
"3(a) The decisions taken by the council of the first respondent to set a property rates
ratio of 1:22 in respect of the category of 'mining' for the financial years 2015/2016;
8 State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited [2017] ZACC 40;
2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC).
9 2023] ZASCA 25.
10 [2025] ZACC 1.
9
2016/2017; 2017/2018; 2018/2019 and 2019/2020 are declared unlawful and set
aside.
(b) In terms of section 172(1)(b)(i) of the Constitution, the order in paragraph 3(a) will
operate retrospectively with effect from 1 July 2015 onwards".
[13] In all these matters, there is no suggestion that the applicants delayed in
launching these applications or that such delay, if any, was unreasonable.
Importantly, as stated in Thaba Chweu, the City could not arrange its affairs with
the confident expectation that the ratepayers would not challenge the 2023/2024
rates policy. I am accordingly of the view that the constitutional imperatives exist
for the Court to hear these applications. The start of the City's new financial year
is of no moment. Neither is it an impediment for this Court to hear these
applications.
Legal Framework
[14] Section 229(1) of the Constitution provides that a municipality may impose rates
on property. Section 2(1) of the MPRA similarly provides that a metropolitan or
local municipality may levy a rate on property in its area. The Municipal Systems
Act, the Municipal Finance Management Act (the "MFMA"),11 as well as the
Constitution, read jointly, prescribe the minimum requirements that form the
framework of the content for public consultation. These legislations outline what
is required of municipalities in dealing with public participation and submissions
received from ratepayers in the administration of their municipality.
[15] Notwithstanding the separate affidavits filed by the four applicants, the City's
answering affidavits share substantial common features. They are centred on
three broad grounds of review, which are: procedural irrationality, substantive
irrationality and infringement of rights in sections 28 and 29 of the Constitution.
In essence, the City's conduct as indicated is challenged on the principle of
legality in terms of section 1 (c) of the Constitution for offending the rule of law,
for offending various other rights in the Bill of Rights, and for offending the
empowering provisions of the Constitution and the MPRA. In the AfriForum
11 56 of 2003.
10
application, the challenge also includes rating and categorising of public
educational institutions over and above private educational institutions.
Background facts
[16] The relevant facts are largely common cause between the parties. Prior to the
2022/23 and 2023/24 Rates Policies, properties falling under the category
"education" enjoyed the benefit of favourable rating ratios of 1 :0.25 (i.e. 25% of
the rating for residential properties, rated at a ratio of 1: 1 ). As indicated, the
applications concern a consideration and interpretation of the City's 2023/2024
Rates Policy and By-Law in light of the provisions of the MPRA and the
Constitution. The significant change that occurred in the impugned Rates Policy
was the removal of the category of "Education". As a direct consequence of the
classification of these "properties zoned and used for educational purpose but
privately owned" under the "Business and Commercial" category in the
2023/2024 Rates Policy, the applicable tariff in 2023/2024 to the properties, in
relation to the 2021/2022 financial year, effectively resulted in substantial
increases in the amount payable on the affected properties. This is against the
following background and uncontentious facts.
[17] On 6 April 2021, The City addressed a letter to the Minister of Co-Operative
Governance and Traditional Affairs ("COGTA"), inter alia, informing the Minister
that the City intended to retain "Education" as an independent category in terms
of section 8(3) of the MPRA. On 10 December 2021, the COGTA Minister
addressed a letter to the City informing it, inter alia, that certain of the City's
intended categories, including "Education", do not meet the requirements of
being determined as additional categories. On 27 May 2022, the City Council
approved the Medium-Term Revenue and Expenditure Budget, including the
2022 Rates Policy and the 2022 Rates By-Law.
[18] The impugned provision of the City's Rates By-Law, which is the subject of these
application reads as follows:
"(b) Business and Commercial Property in this category includes:
11
( ... )
(v) Properties zoned and used for educational purpose but privately owned will be
categorised as Business and Commercial. The property rates will be phased in over a
period of 4 years. The rates payable will be:
Year 1 -25% of the tariff for this category (2023/2024)
Year 2 -50% of the tariff for this category 2024/2025)
Year 3-7 5% of the tariff for this category (2025/2026)
Year 4-100% of the tariff for this category (2026/2027)."
[19] On the other hand, the impugned provision of the City's Rates Policy and By-Law
pertaining to public educational institutions in item (l)(i)(b) read with (ii) of the
Rates Policy provides that the property rates of properties used and owned by
organs of state such as schools, pre-schools, early childhood development
centres and further education and training colleges will be phased in over a
period of 4 years and that the rates payable will be:
Year 1 -25% of the tariff for this category (2023/2024);
Year 2 -50% of the tariff for this category (2024/2025);
Year 3 -75% of the tariff for this category (2025/2026); and
Year 4 -100 % of the tariff for this category (2026/2027).
The ratio for the category of Public Service Purposes is 1: 1.5 and the rates tariff
for 2023/2024 is 0.013186
[20] It is common cause that in the 2021 /2022 financial year of the City, the applicable
Rates Policy reflected under the "Education" category for "properties zoned and
used for educational purpose but privately owned" attracted a ratio of 1 :0.25 and
rates tariff of 0.002155. In the 2022/2023 financial year, the applicable Rates
Policy reflected under the "Education" category for "properties zoned and used
for educational purpose but privately owned", were categorised as "Business and
Commercial", a ratio of 1 :2.5 and rates tariff of 0.021547 became applicable
12
resulting in litigation by three of the applicants (IIE, Curro and Afriforum) against
the City in respect of the 2022/2023 Rates Policy.12
[21] In casu, purporting to act in terms of section 11 (3)(i) and section 75A(1) and (2)
of the Municipal Systems Act read with section 24(2)(c)(ii) of the MFMA and
section 14(1) and (2) of the MPRA, the City Council approved the proposed
property rates and tariffs for 2023/24 financial year, with effect from 1 July 2023.
[22] The applicants in the IIE Application run various independent educational
institutions, including primary and secondary schools, universities and colleges,
within the City's area of jurisdiction. The first applicant owns immovable
properties on which the applicants' schools used for education purposes are
operated. The applicants' contention is that the categorisation of the IIE's
properties used for that purpose under the category of "business and
commercial" based on the words "but privately owned" is unlawful and
unconstitutional on a few grounds. Whereas the City may levy different rates on
different categories of property in terms of section 8 of the MPRA, the categories
of properties must be determined based only on the use or permitted use of the
property.
[23] IIE contends that the nature or identity of the owner of the property is not a lawful
criterion that may be used by the City to categorise properties or to differentiate
between categories of properties. By adding the criteria of "but privately owned",
the City has unlawfully levied rates against the person or identity of the app Ii cants
as profit companies, rather than against their property and the use to which such
property is put. The applicants contend that the differentiation of privately owned
and publicly owned properties used for the same purpose, i.e. education, is
contrary to section 19(1)(c) of the MPRA.
[24] IIE points out that the inclusion of privately owned schools under the category of
"business and commercial" constitutes an unlawful sub-categorisation for which
the City failed to obtain the Minister's consent in terms of section 8(4) of the
MPRA. In addition, that the City undermined a meaningful public participation
12 See in this regard the judgment by Kuny Jin Afriforum NPC v The Council of the City of Johannesburg
Metropolitan Municipality and Others [2023] ZAGPJHC 241.
13
process as contemplated Chapter 4 of the Municipal Systems Act. The rest of
the applicants adopt a similar stance.
[25] In terms of section 8(1) of the MPRA, a municipality may, in terms of the criteria
set out in its rates policy, levy different rates for different categories of rateable
properties. The way such rates are calculated is based on the market value of
the property.13 All rates ratios in respect of the various categories of properties
are calculated in relation to the "residential property" rate which is used by the
municipality as a benchmark. Each year the municipal council determines the
rates ratio that is applicable and the rates tariffs are then promulgated according
to those ratios.
[26] Curro, as indicated, seeks to have the impugned decisions declared invalid on
the basis that they violated section 229(2)(a) of the Constitution14 and section
19(1)(c) of the MPRA.15
The City's Public Participation Process
[27] It is convenient and crucial to firstly deal with the public participation process.
The applicants contend that the City conducted a sham and unsatisfactory public
participation process. The public participation process relevant to this application
concerns the City's budgetary process. This is, inter alia, is provided for in section
4 of the MPRA, Chapter 4 of the Municipal Systems Act, read with section 22 of
the MFMA.
[28] Section 16 of the Municipal Systems Act deals with the development of culture
of community participation. It provides that
13 See section 11 (1 )(a) of the MPRA.
14 Section 229(2) states:
The power of a municipality to impose rates on property, surcharges on fees for services provided by
or on behalf of the municipality, or other taxes, levies or duties -
(a) may not be exercised in a way that materially and unreasonably prejudices national economic
policies, economic activities across municipal boundaries, or the national mobility of goods, services,
capital or labour.
15 Section 19(1)(c) provides that
(1) A municipality may not levy-
(c) rates which unreasonably discriminate between categories of non-residential properties.
14
"(1) A municipality must develop a culture of municipal governance that complements
formal representative government with a system of participatory governance, and must
for this purpose-
(a) encourage, and create conditions for, the local community to participate in the
affairs of the municipality, including in-
(i) the preparation, implementation and review of its integrated development
plan in terms of Chapter 5;
(ii) the establishment, implementation and review of its performance
management system in terms of Chapter 6;
(iii) the monitoring and review of its performance, including the outcomes and
impact of such performance;
(iv) the preparation of its budget; and
(v) strategic decisions relating to the provision of municipal services in terms
of Chapter 8;
(b) contribute to building the capacity of-
(i) the local community to enable it to participate in the affairs of the
municipality; and
(ii) councillors and staff to foster community participation; and
(c) use its resources, and annually allocate funds in its budget, as may be
appropriate for the purpose of implementing paragraphs (a) and (b).
(2) Subsection (1) must not be interpreted as permitting interference with a municipal
council's right to govern and to exercise the executive and legislative authority of the
municipality".
[29] Section 17 of the Municipal Systems Act deals with mechanisms, processes and
procedures for community participation. It provides as follows:
"17 (1) Participation by the local community in the affairs of the municipality must take
place through-
( a) political structures for participation in terms of the Municipal Structures Act;
(b) the mechanisms, processes and procedures for participation in municipal
governance established in terms of this Act;
(c) other appropriate mechanisms, processes and procedures established by the
municipality;
(d) councillors; and
(e) generally applying the provisions for participation as provided for in this Act.
15
(2) A municipality must establish appropriate mechanisms, processes and procedures
to enable the local community to participate in the affairs of the municipality, and must
for this purpose provide for-
( a) the receipt, processing and consideration of petitions and complaints lodged
by members of the local community;
(b) notification and public comment procedures, when appropriate;
(c) public meetings and hearings by the municipal council and other political
structures and political office bearers of the municipality, when appropriate;
(d) consultative sessions with locally recognised community organisations and,
where appropriate, traditional authorities; and
(e) report-back to the local community.
(3) When establishing mechanisms, processes and procedures in terms of subsection
(2) the municipality must take into account the special needs of-
(a) people who cannot read or write;
(b) people with disabilities;
(c) women; and
( d) other disadvantaged groups.
(4) A municipal council may establish one or more advisory committees consisting of
persons who are not councillors to advise the council on any matter within the council's
competence. When appointing the members of such a committee, gender representivity
must be taken into account. (emphasis added)
[30] In an attempt to fulfil its obligation in the abovementioned regard, on 1 April 2023,
the City embarked on what it calls the public participation process by publishing
the draft 2023/2024 Rates Policy. However, the draft Rates Policy as indicated
above contained the same categorisation of "Properties zoned and used for
educational purpose but privately owned" as in the 2022/2023 Rates Policy.
Following this publication, on 17 April 2023, the applicants' representative, Mr
Travis Baikie, together with other stakeholders, attended a virtual meeting with
the City's officials. The applicants raised their concerns relating to the Kuny J
Order and Judgment and that the City had not determined the category of
"Education", but rather that properties used for education but privately owned
were determined as a sub-category of "business and commercial"". However, the
City's officials provided no feedback to the parties present in respect of the
submissions made and called for a further meeting to deal with such issues.
16
[31] On 21 April 2023, IIE received a notice, as did Curro, one business day prior to
the proposed further meeting scheduled to be held on 24 April 2023. Mr Travis
Baikie, attended the further meeting with the City on behalf of IIE. He again
requested clarity pertaining to the matters previously raised including the
establishment of an independent category of education in the draft Rates Policy.
The City, again, did not engage with the attendees that included Curro or provide
any answers or explanations in respect of the public's representations regarding
this issue. Instead, the attendees were asked to provide their submissions to the
City in writing, which IIE did as per annexure FA9 dated 5 May 2023.
[32] The applicants requested the City to consider in support of an independent
category of "education", inter alia, that for the purposes of determining categories
of rateable properties, the City must consider the use of the property, the
permitted use thereof or a combination of the use and permitted use, in terms of
section 8(1) of the MPRA, which is subject to section 19 of the same Act. That,
any subjective enquiry into the ownership of such property or the imposition of
an additional criteria other than use or permitted use, was irrelevant for purposes
of section 8(1) of the MPRA. Further, that the City may determine such other
categories as it may require in terms of section 8(3) of the MPRA, provided such
categories do not circumvent those determined in section 8(2) of the same Act.
In addition to the above, that that the City was, inter alia, required to obtain the
prior written consent of the Minister to determine a sub-category of property used
for educational purposes but privately owned under the "business and
commercial" category as contemplated in section 8(4) of the MPRA.
[33] IIE contends that the categorisation of properties used for educational purposes
but privately owned as ""business and commercial"" would unreasonably
discriminate between categories of non-residential properties which is
impermissible in terms of section 19 of the MPRA.
[34] The applicants are adamant, as evidenced from the City's response, that the
public participation process was a sham and that the City's exclusion of
"education" as an additional category was a pre-determined outcome. The
applicants aver that the City's officials who led the public participation process
failed to bring an objective mind to bear on the submissions presented to them,
17
failed to interact at all with the members of the public represented at these
meetings and did no more than pay lip-service to the legal requirement of public
participation. According to AfriForum, this rendered the community participation
process meaningless. This was not only against the spirit and purpose of the
community participation process as stipulated in the MPRA but was also
procedurally irrational and unconstitutional.
[35] It is common cause that the outcome of the City's public participation process is
noted in the Mayoral Committee's recommendations to council, which
recommendations were to be considered at the council meeting scheduled for
13 and 14 June 2023 together with the Integrated Development Plan 2023/2024,
the 2023/2024 Institutional Service Delivery Budget and Implementation Plan of
the Municipality2023/2024 to 2025/26 Medium-Term Budget and related
documentation, which included the draft Rates Policy and Rates By-Law. In Item
30 titled "Draft Rates Policy and Rates By-law", annexure "FA15", the City
submitted at page 30.3 that: "The majority of the inputs received by the City
during the public participation process for the draft Rates Policy 2023 were from
academia and the business sector'').
[36] The City's purported response to the public submissions in respect of education,
which was attached as C 1 to the draft Rates Policy 2023/2024 and is marked
annexure "FA16" consisting of twelve pages of unnumbered paragraphs in the
IIE application. In material parts of C1, it reads thus:
"The proviso to the Order granted by the Court in the Afriforum Judgment is that the
City may not rely on the "closed list" in sub-section (2) of section 8 as a basis for not
determining a separate category of 'education'. Strict compliance with this portion of
the Order, unless otherwise set aside, therefore requires that the City must locate its
justification for not determining a category of 'education on other grounds than the
contention that such would "circumvent the categories of rateable property that must
be determined in terms of subsection (2) ".
The failure to determine a separate category of 'education' in the 2023/2024 Rate
requires the City to ensure compliance with both the Afriforum Judgment and the Act.
In immediate response to these concerns is that the Afriforum judgment does not
18
create a legal obligation on the City to determine a separate category of "education" in
the manner suggested in the comments received. The observation of the Court opens
the door to the City not to determine the category of education, subject to it acting
lawfully in other respects.
The Afriforum Judgment is no authority for:
The invalidity of the alleged excessive or massive increase in the rate which the City
may impose in relation to the properties which previous fell under the category of
education;
The substantive invalidity of the classification of privately owned properties which are
used for educational purpose sunder either the 'business and commercial' category or
the Public Benefit Organisation (PBO) category;
The infringement of the rights in sections 28 and 29 of the Constitution with regards to
the alleged negative impact of the rates increase on the best interests of the child and
the right to education ... "
[37) The applicants allege that the City's response did not consider the submissions
from the public or other stakeholders but was nothing more than a critique of the
Judgment and an ex post facto justification of the pre-determined course.
Afriforum makes the same allegation. According to the applicants, none of the
views expressed in the City's response in C1 were ever raised during any of the
public participation meetings for discussion and debate. ISASA pointed out in
addition and significantly that, the Draft Rates Policy did not communicate the
City's reasons for abandoning the "education" category and the 30% rebate for
private schools. The other applicants make the same submission.
[38) AfriForum also bemoans the fact that there is no reference in any report to the
council that the City had consulted with other organs of state that have a direct
interest in Rates Policy and the financial effect on educational institutions. Such
organs of state are in this case, the Minister of Basic Education, the MEG for
Education: Gauteng Province and the Minister of Higher Education. This even
though the judgment Kuny J specifically found, in relevant parts, that it was vital
that at least the Gauteng Education Department be consulted. Curro seeks relief
which includes consultation with the Gauteng Department of Education.
19
[39] In the answering affidavit the City acknowledges that sections 152(1) (a) and (e),
152(2) and 153(a) of the Constitution read with Chapter 4 of the Municipal
Systems Act (sections 16 to 22) and other relevant statutory provisions make it
obligatory for municipalities to encourage the participation of local communities
and community organisations in local government matters. The City states that it
conducted a public participation exercise whilst conscious of the nature and
extent of its constitutional obligation to encourage the involvement of local
communities in matters of local government, having regard to the provisions of
the Municipal Systems Act and the MFMA.
[40] The City claims for the first round of engagements, the wards were grouped into
40 clusters. Each ward was then consulted individually which took place between
September -November 2022. This meant that each of the 135 CoJ Wards were
given the space and time to exercise their voice and come up with their individual
priorities. This was followed by the second round of engagements consisting of
Regional Summits, 7 in total and 8 targeted stakeholder sessions, which detailed
"what projects and/or programs the City has fashioned in responding to the
community issues raised" during April 2023. The City further claims that a total
of 3057 persons participated in the first round of public participation, with a total
of 491 written comments received and that "all the planned sessions were
successfully held". The City also claims that a total of 4153 persons participated
in the second round of public participation, with a total of 3727 comments
received with all the planned 17 sessions held successfully.
[41] The City contends that the applicants failed to take advantage of the opportunity
offered to them by the City's extensive public consultation processes. It also
contends that it gave attention to all those comments received in respect of
private educational institutions, but pointed out that "it is not practical to provide
detailed reasons in response to each submissions (sic) which the City received'.
[42] The City contends that it is the applicants and not the City, that has a negative
duty not to impair and diminish the right to a basic education. Further, that the
applicants mischaracterise the rights in sections 28 and 29 of the Constitution
and no infringement of the rights in section 28 and 29 of the Constitution has
been established.
20
[43] The City submitted that the inclusion of schools which are publicly owned under
a separate category in section 8(2)(i) of the MPRA is a rational differentiation in
relation to schools which are privately owned. Section 8(2)(f) of the MPRA
provides the statutory basis for the differentiation in the Rates Policy.
[44] In all these matters, I have no difficulty in concluding that the primary issue of
public participation is dispositive of the dispute between the applicants and the
City. On public participation, the Constitutional Court in Tshwane City v Afriforum
and another16 stated that -
"[p]ublic participation should not be elevated to co-governance or equal sharing of
executive and budgetary responsibilities. Council bears the constitutional and statutory
power to run the affairs of the City. For this reason, it cannot serve as the basis for a
court to intrude into Council's sole operational space that a segment of those it serves,
is displeased with the public participation process Council had otherwise facilitated."17
[45] However, as a constitutional democracy, our Constitution envisages the
extension and expansive involvement of communities as a basic guiding principle
which envisions a dynamic and evolving involvement of communities in the
affairs of local authorities. In Doctors for Life International v Speaker of the
National Assembly and Others18 the Constitutional Court refers to "a continuum
that ranges from providing information and building awareness, to partnering in
decision-making".
[46] It is correct that pursuant to section 17 of the Municipal Systems Act, participation
of the local community occurs through the political structures, i.e. through
engagement with the City council and its executive committees but also through
the structures and mechanisms established by the Act, particularly ward
committees as the City pointed out. However, the obligation on the City in
promoting constitutional values by encouraging public participation at local­
government level goes beyond a mere formalism in which public meetings are
convened and information is shared.
16 [2016] ZACC 19; 2016 BCLR 1133 (CC); 2016 (6) SA 279 (CC).
17 Id at para 67.
18 [2006] ZACC 11; 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399) at para 129.
21
[47] The Court in Borbet South Africa (Pty) Ltd and Others v Nelson Mandela Bay
Municipality19 noted that the concept of "participatory democracy" as envisaged
by the Constitution requires that the interplay between the elected representative
structures and the participating community is addressed by means of appropriate
mechanisms. It is this relationship to which the Constitutional Court speaks when
it states that there must not only be meaningful opportunities for participation,
but also that steps must be taken to ensure that people have the ability and
capacity to take advantage of those opportunities. Borbet reminds us aptly at
para 19 that "the obligation to encourage public participation and to provide
appropriate mechanisms is not confined to these structures".
[48] In Matatiele Municipality and Others v President of the RSA and Others (No 2)2°
the Constitutional Court made the following authoritative remarks:
"The more discrete and identifiable the potentially affected section of the population,
and the more intense the possible effect on their interests, the more reasonable it
would be to expect the legislature to be astute to ensure that the potentially affected
section of the population is given a reasonable opportunity to have a say. '121
[49] The dispute of fact regarding the process of adoption of the 2023/2024 municipal
budget in this instance must be resolved on the basis of the well-known test set
out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd. 22 This Court
accordingly accept that the City, during this phase of the budget-preparation
process, did take steps to facilitate public meetings at which the integrated
development plan ("IDP") review and budget were considered. With that said, it
is however a matter of great concern that the City hardly set out any relevant
facts relating to its conduct on such an important matter with constitutional
ramifications such as the best interests of children. As in Borbet, hardly anything
is said of the role, if any, played by ward committees in the budget preparation
process insofar as privately owned properties used for educational purposes may
in terms of the City's Rates Policy and By-law only be allocated into the category
of "business and commercial".
19 2014 (5) SA 256 ECP.
20 [2006] ZACC 12; 2007 (6) SA 477 (CC); 2007 (1) BCLR 47 (CC).
21 Id at para 68.
22 [1984] ZASCA 51; 1984 (3) SA 623 (A).
22
[50] It was incumbent upon the City, as ISASA points out, to consider what would be
in the best interests of learners at independent schools and to ensure that the
parents and learners were particularly heard before the City re-categorised
private educational properties as "business and commercial". In the context of
local government more is required than public meetings and the publication of
information. A local council is required to put in place mechanisms that create
conditions for public participation, that builds the capacity of communities to
participate. It is required to allocate resources to the task and to ensure that the
political and other structures established by the legislation are employed to meet
the objectives of effective public participation.
[51] The applicants who attended the meetings were effectively ignored as their
question were deferred. Further, the opportunity for adequate public participation
in this instance was unreasonable consideration being had to objective facts
referred to above, given the intensity of the impact on the public by the changes,
particularly from poor communities in the inner city. This against the background
that the state has not opened a new public school in the Johannesburg CBD in
the last thirty years or so, despite the substantial increase in the inner-city
population, which according to ISASA includes the development of over 50,000
new affordable housing units.
[52] Importantly, the underlying consideration is section 28(2) of the Constitution,
which provides that "a child's best interests are of paramount importance in every
matter concerning the child". ISASA points out in RA2 (ISASA's letter to the City)
that independent schools make a necessary and indispensable contribution to
expanding and improving access to basic education for thousands of children in
the City. More so that the Gauteng Education Department confirms that public
schools in Gauteng are in crisis,23 a notorious fact, which this Court can take
judicial notice, and that they do not have capacity to accommodate the growing
number of learners in the province.
[53] The unaffordability of fees on account of the increased rates following the new
categorisation of private educational properties is bound to have a negative
23
• Learner in-migr:ation in the province was 7.5% from 2022 to 2023 and the backlog of new schools
that need to be bullt to meet that demand is 152 new schools (85 primary and 67 secondary).
23
impact for access to basic education given the notoriously constrained capacity
of public schools across the City. In all these matters the City failed to consider
the best interests of the children that attend independent schools when it decided
to re-categorise private educational properties and consequently breached
section 28(2) of the Constitution, read with section 29(1)(a) of the Constitution
which guarantees everyone the right to a basic education. It further obliges the
state, including the City, to take reasonable measures to make further education
progressively available and accessible.
[54] I am accordingly of the view that the steps taken by the City, objectively
considered and viewed in their entirety, did not meet the requirements for
effective public participation in the budget process. The public participation
process was undoubtedly a sham process. The focus, as apparent from C1 in
the ISASA application, which is clearly a legal opinion albeit unsigned, was to
circumvent the Kuny J judgment. To this end, the City is guilty of dereliction of
their duty towards the public and have been poor stewards of the trust reposed
in them.
[55] Turning to the appropriate remedy in the light of the finding regarding public
participation in the budget process: Section 172(1 }(a} of the Constitution requires
a court, when deciding a constitutional matter, to declare any law or conduct that
is inconsistent with the Constitution to be invalid to the extent of the
inconsistency. I have, for the reasons set out above, found that the City's
conduct was indeed inconsistent with the constitutional obligation to ensure
public participation in its processes. This is insofar as privately owned properties
used for educational purposes may in terms of the City's Rates Policy and By­
law only be allocated under ""business and commercial".
[56] As indicated above under section 172(1)(b) of the Constitution, a court deciding
a constitutional matter is empowered to make "any order that is just and
equitable". Generally, a court will not substitute its own decision for that of the
administrator, in this instance, the City. It will remit the matter to the City together
with an instruction to decide the matter again or other appropriate directions. This
accords with the primary remedy associated with judicial review at common law,
usually coupled with remittal as opposed to the exceptional circumstances under
24
which an impugned decision is "corrected" or "substituted". Heher JA indicated
in Gauteng Gambling Board v Si/verstar, 24 "remittal is almost always the prudent
and proper course"25 not only for trite constitutional reasons to defer to bodies
vested with decision-making power, but are also institutional since in this
instance the decision to determine rates and categorisation and therefor the
constitutional competence, lies with the City, in the absence of a finding or the
Court being persuaded that the case "exceptional". There is no such suggestion
in any of these matters. In the circumstances, I make an order in respect of all
these matters in the following terms:
Order
(Case Number: 2023-095869; Case Number: 2023-095869; Case No: 120464/2023
and Case No: 2023 -13361)
1. The first respondent's Municipal Property Rates By-Law and Property
Rates Policy 2023/2024 as adopted by the council of the first respondent
on 14 June 2023 and published in the Provincial Gazette No. 261 on 26
July 2023 are declared unconstitutional and unlawful in respect of the
rating and categorisation of all educational institutions whether public or
private in nature and including all schools, pre-schools, early childhood
development centres, further education and training colleges and
universities (hereinafter collectively referred to as "educational
institutions").
2. The first respondent's Municipal Property Rates By-Law and Property
Rates Policy 2023/2024 as adopted by the council of the first respondent
on 14 June 2023 and published in the Provincial Gazette No. 261 on 26
July 2023 are set aside in respect of the rating and categorisation of all
educational institutions and the phasing in of the property rates over a
period of 4 years from 2023/2024 to 2026/2027.
24 Gauteng Gambling Board v Si/verstar Development Ltd [2005] ZASCA 19; 2005 (4) SA 67 (SCA).
25 Id at para 29.
25
3. The first respondent is to comply with the provisions of the Local
Government: Municipal Systems Act 32 of 2000, the Local Government:
Municipal Finance Management Act 56 of 2003 and the Local
Government: Municipal Property Rates Act 6 of 2004, with specific
regard to community participation, before tabling, adopting and
promulgating a new or amended Rates Policy and Property Rates By­
law addressing the future categorisation of public and independent
schools.
4. The first respondent is to request input and/or comments from the
applicants, the respondents in all these cases and all affected
independent schools providing basic education in the first respondent's
local community before adopting and promulgating the amended Rates
Policy and Property Rates By-Law concerning the future categorisation
of public and independent schools.
5. The City of Johannesburg Metropolitan Municipality is directed to levy
the tariff ratio and rate tariff applicable to properties included in the
"education" category of rateable property prescribed in Section B(e) of
the 2021/22 Municipal Rates Policy and By-Law to the properties
described in Section B(b)(v) of the 2023/2024 Rates Policy and By-Law,
adjusted according to the annual inflationary increases applied in the
2022/23 financial year (4.85%) and in the 2023/24 financial year (2%).
6. The costs of these applications, including all reserved costs, are to be
paid by the City of Johannesburg Metropolitan Municipality on Scale C,
including the costs of two counsel, where so employed.
MUDAU J
JUDGE OF THE HIGH COURT
JOHANNESBURG
26

APPEARANCES:
Counsel for IIE Applicants: Adv MM Rip SC and Adv. JL Verwey
Instructed by: Ivan Pauw & Partners Attorneys
Counsel for ISASA Applicants: Adv T Ngcukaitobi SC, Adv M Salukazana,
and Adv M Kritzinger
Instructed by: Bowman Gilfillan Inc.
Counsel for CURRO Applicants: Adv E van As and Adv Boipelo Ramela
Instructed by: Couzyn Hertzog & Horak Attorneys
Counsel for AFRIFORUM Applicants: Adv A Lamey
Instructed by: Hurter Spies Inc.
Counsel for City Respondents: Adv S Ogunronbi, Adv K Metia, and
Adv M Madi
Instructed by: Motsoeneng Bill Attorneys
Judgment on: 8 April 2025
Heard on: 3-7 March 2025
27