~~ C/fffi-~,-<~
~ ~ -·~ ~I
~
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 2025-090751
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE : YES/-,
(2) O F INTEREST TO O THER JUD
(3) REV ISED ✓
In the matter between:
AFRIFORUM NPC
and
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
THE MUNICIPAL COUNCIL OF THE CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
THE EXECUTIVE MAYOR OF THE CITY OF
TSHWANE METROPOLITAN MUNICIPALITY
THE MUNICIPAL MANAGER OF THE CITY OF
TSHWANE METROPOLITAN MUNICIPALITY
THE MINISTER OF FINANCE
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT

Page 2 of68
This judgment is made an order of court by the Judge whose name is reflected herein,
duly stamped by the Registrar of the Court, and is submitted electronically to the
parties/their legal representatives by email. This judgment is further uploaded to the
electronic file of this matter on Caselines by the Judge or his/her secretary. The date
of this order is deemed to be 31 July 2025.
JUDGMENT
AWAKOUMIDES , AJ
INTRODUCTION
1. This is an application brought by way of urgency and was scheduled to be
heard on 24 June 2025. On 27 June 2025 the Honourable Ms Justice Barn
issued the following court order, by agreement between the parties:
1.1 The first to fourth respondents are given leave to supplement their
answering affidavit before or on 9 July 2025.
1 .2 The applicant is given leave to file a reply to the respondents'
supplementary affidavit in paragraph 1 supra, before or on 16 July
2025.
1.3 The parties shall file their respective heads of argument by 18 July
2025.
1.4 The case is referred to the Acting Judge President for judicial case
management.
1.5 Having regard to the referral in paragraph 4, the court cannot
postpone the case to 22 July 2025 as requested by the parties, and it

Page 3 of68
is accordingly postponed sine die.
1.6 All the issues arising from the papers, including that of urgency,
remains alive for determination by the court hearing the case in due
course.
1. 7 Costs are reserved.
2. On 27 June 2025 the applicant's attorneys addressed a letter to the Acting
Judge President Ledwaba and copied the first to fourth respondents' attorneys
therein. In such communication a request was made to the Acting Judge
President for an urgent judicial case management meeting. Of importance is
the communication included mention that senior counsel for both parties
agreed that the importance of this case justifies a request for hearing on 22
July 2025. The aforesaid communication referred to the order of Justice Barn
and, specifically the parties' right to supplement their papers along specific
timelines. Following the communication to the Acting Judge President, this
application was allocated to me as a special motion and set down for hearing
on 24 July 2025.
3. Despite the first to fourth respondents having been granted leave to
supplement its papers by 9 July 2025, the supplementary answering affidavit
was only filed on 12 July 2025. No explanation for the late filing appears from
the supplementary answering affidavit neither is there any condonation
application for the late filing. On the other hand, the applicant was afforded
until 16 July 2025 to file any supplementary papers and was only able to do
so on 17 July 2025. I will deal with the late filing of the affidavits later in the
context of how the City has conducted itself.

Page 4 of68
APPLICANT'S CASE
4. The applicant contends that the City of Tshwane Metropolitan Municipality
("the City") has resolved to levy what the City calls a cleansing levy, for the
2025 I 2026 financial year, commencing on 1 July 2025 and ending on 30 June
2026. The applicant, acting in the public interest has sought relief reviewing
the imposition of the cleansing levy on the basis that the imposition of the levy
is unlawful and irrational and further seeks to prevent the City from unlawfully
taxing the public.
5. The applicant submitted that thousands of the members of public will be called
upon the pay an unlawful levy for a waste collection service that the City does
not provide. The applicant contends that because of the City's inability over
the years to provide waste collection services, the public was constrained to
establish alternative ways of having their wa ste disposed of at their own cost.
6. I will deal with the constitutional and legislative provisions hereunder together
with the City's rationale for imposing such level.
7. I have perused all the papers filed and uploaded onto Caselines, which run
well at around 3792 pages, and I shall similarly deal with the unnecessary
documents uploaded without providing the courtesy to the court to only peruse
the necessary extracts from such documents. Having considered the date of
the resolution adopted by the City on 29 May 2025 and the sequence of events
thereafter, more particularly the importance of this case to the public at large,
I find that the application is indeed urgent, and the application is deserving of
being dealt with as one of urgency. I will discuss the question of urgency
hereunder.

Page 5 of68
8. In its notice of motion, the applicant seeks the following relief:
8.1 Dispensing with the forms and service provided for in the rules in
hearing the application as a matter of urgency
8.2 Declaring the imposition of a cleansing levy by the first to fourth
respondents unlawful, invalid and of no force and effect and to set it
aside.
8.3 That the declaration in paragraph 2 shall include the relevant portions
applicable to the cleansing levy in the following:
(a) The 2024 / 2025 Funding Plan to approve the unfunded budget
position of the City (identified by the copy attached as Annexure
"FA?" to the Founding Affidavit.
{b) The 2024 / 2025 Medium-Term Revenue and Expenditure
Framework (identified by the copy attached as Annexure "A" to
"FA 1 0" to the Founding Affidavit and council resolution, dated 29
May 2025 (identified by the copy attached as Annexure "FA 12"
to the Founding Affidavit.
(c) The Tariff Policy with effect from 1 July (identified by the copy
attached as Annexure "FA 13" to the Founding Affidavit.
(d) The City of Tshwane Metropolitan Municipality's By-law
(identified by the copy attached as Annexure "FA16" to the
Founding Affidavit; and
(e) City of Tshwane Metropolitan City Refuse Service Schedule with
tariffs for Refuse Removal Services (identified by the copy
attached as Annexure "FA16" to the Founding Affidavit).

Page 6 of68
9. In the event of the by-law in paragraph 8 (3) (b) above not having been
published by the time this order is made, an order prohibiting the City from
published the resolution and compelling it to forthwith take all reasonable
measures that it will not be published.
10. In the event that the City having activated its billing system to render accounts
to residents and businesses with the cleansing levy, an order -
(a) compelling the City to take all reasonable measures to ensure that
residents and businesses are not billed for the cleansing levy; and
(b) to the extent that it may be too late for such reasonable measures to
succeed, to forthwith take alle reasonable measures to ensure that
the accounts of those residents and businesses who are billed for a
cleansing levy, be credited with the same amount during the next
billing cycle.
(c) just and equitable relief, in the discretion of the court.
7. [In the alternative to prayers 2 - 6 -
7.1 that the final relief sought in prayers 2-6 be postponed sine die.
7. 2 that the case be referred to case management to the Acting
Deputy Judge President.
7.3 that an order be granted pendente lite -
(a) suspending the implementation of the cleansing levy by the
City;
(b) interdicting the City from levying and in any manner enforcing

Page 7 of 68
the payment of cleansing levy].
8. That the first respondent pays the costs of this application,
including the costs consequent upon the appointment of senior
counsel on Scale C.
9. Such further or alternative relief which the court may grant."
11. Insofar as the standing of the applicant is concerned, I find no reason to accept
that the applicant has the necessary standing required to launch this
application. The applicant is a well-known litigant and acts as a civil rights
organization. I will deal with this more fully hereunder.
12. The applicant contends that the respondents' offending resolution was taken
by the City's Council on 29 May 2025. This resolution came to the attention
of the applicant on 30 May 2025 when the City's attorney responded to three
prior letters which the applicant and its attorneys had addressed to the City to
seek clarity concerning the subject matter of this case.
13. Pursuant to correspondence addressed to the City requesting it to desist from
imposing the cleansing levy, the City, on 9 June 2025 indicated in writing that
it would proceed with the imposition of the cleansing levy.
14. The applicant contends that, and it is common cause, that every owner and
occupier of a property has a legal obligation not to accumulate waste but to
dispose of it in a lawful manner. This is an obligation that may be enforced
against every owner and occupier of property by the City. The applicant
further contends that the City has for years, in accordance with its functions
and obligations, rendered waste removal services to many residents and

Page 8 of68
occupiers of properties, businesses, industries and so forth and continues to
do so. It is also common cause that waste removal comprises of various
forms, including the provision of and the regular emptying of bins, larger
containers and similar equipment.
15. It is further common cause that citizens who enjoy the benefit of these services
ordinarily pay a waste removal charge which is commensurate with the type
and volume of waste, which is removed, and this is calculated by a fixed
amount per month per bin or for container rental and removal. It is similarly
so that there are residents who are financially unable to pay for the services
but this notwithstanding, the City continues to supply such services to them by
way of an exception and the applicant contends that the City is correct to
absolve such residents on an equitable basis.
16. On the other hand, there have been (and this is ongoing) many other residents
and businesses who do not enjoy the benefit of the City's waste removal
services and out of necessity, these residents have adopted alternative
arrangements to dispose of their waste. The applicant contends that this is so
because the City cannot or will not provide the services.
17. The group of residents who arrange for the removal and disposing of their own
waste at their own expense do so by making use of the service of private
contractors. Many residents arrange private contractors through a body
corporate or some form of association according to the applicant, residents
and business are increasingly making use of private refuse removal services
in the form of recycling companies and in order to achieve this these
businesses and residents have to, through their own effort, distinguish
between the nature of the waste for purposes of recycling and have to pay
such companies to collect the separately identified waste for purposes of

Page 9 of68
recycling. This waste is not dumped at municipal dumping sites or in the street
and the applicant contends that this minimizes the City's waste burden.
18. The applicant contends that residents who have, or business that produced
such waste have to make use of private contractors and facilities to dispose
of the waste in a lawful manner. The City is only able to manage general
waste and cannot transport or dispose of any other types of waste at the City's
own landfills, because it is not permitted to. As examples, the applicant
contends that this waste includes industrial waste such as steel, and
hazardous waste such as chemicals.
19. The applicant contends that because these businesses and residents arrange,
and pay for the waste collection, this should not be seen as something they
do for their own benefit because it is a legal obligation resting upon such
residents and businesses and greatly contributes and lends assistance to the
City to comply with its legal obligations in managing waste. The applicant
contends that instead of the City appreciating the efforts of the residents and
businesses who arrange and pay for their own waste collection, the City, in
adopting the resolution which I will deal with hereunder, intends taxing these
residents and businesses.
20. The applicant contends that, on the City's own data there are 194 396
residential accounts and 62 055 business accounts for properties which are
not serviced by the City insofar as waste removal is concerned. The expenses
incurred by these residents and businesses are necessitated by firstly the
need to dispose of the waste and secondly because they are legally obliged
to dispose of the waste. The group of residents and businesses so described,
employ a private contractor who in turn incurs the cost of personnel, vehicles,
fuel and associated costs to dispose of the waste. The costs of the private

Page 10 of 68
contractor are passed on to residents and occupiers who are obviously obliged
to pay their portion of the total cost. In addition, there are additional costs
which the residents and businesses have to carry in respect of dumping of the
waste, the reason being that the City's dumping sites are geographically
located farther than the dumping sites at private landfill sites and this route is
followed to minimize the total cost which the residents and businesses have
to pay.
21 . The City attempted to resolve and pass a cleansing levy in 2017. The City's
attempt to proceed with the levy was prevented by the intervention of the
applicant. On 28 June 2017, the City published Local Authority Notice 923 of
2017 which provided:
"Withdraw and determination of various fees, charges, tariffs, and property
rates and taxes payable to the City of Tshwane ".
22. The applicant contends that the City sought to impose the City cleansing levy
on properties with no waste account. On 28 November 2017 the applicant
addressed a letter to the City objecting to the imposition of the cleansing levy
therein recording that it is unlawful for the City for the reasons advanced in its
founding affidavit for the City to proceed with the levy. I have had regard to
Annexure "FA2" to the founding affidavit. This is the letter which the applicant
addressed to the City on 28 November 2017. Of importance is paragraph 4
of such letter which states the following:
"On 28 June 2107, the City of Tshwane published a Local Authority Notice 923
of 2017 regarding the WITHDRAWAL AND DETERMINATION OF VARIOUS
FEES , CHARGES AND PROPERTY RATES AND TAXES PAYABLE TO THE
CITY OF TSHWANE. "

Page 11 of 68
23. In schedule 5 of this notice, reference is made to the imposition of the following
City Cleansing Levies on properties with no wa ste account:
"4.1 Residential properties R127 .04 per month.
4.2 Business properties R2 911.67 per month.
Under the notes it is stated that tax is payable in terms of the Value Added
Tax Act (No. 89 of 1991) will be levied on charges as detailed in Schedule 5."
24. In the same letter, at paragraph 5.4 the City is advised as follows:
"The City of Tshwane is only empow ered by Section 74 of the Municipal
Systems Act to charge users in proportion to their use of a service. In this
instance, no service is rendered at all. Furthermore, at paragraph 5.5 of such
letter the following appears:
"Section 4 of the Municipal Powers and Functions Act provides that municipal
taxes, other than municipal property rates which are governed by a specific
act, may only be introduced by the Minister of Finance or on his or her own
accord, or on application by a municipality, group of municipalities or
organized local government in terms of Section 5 of this law. Whatever the
case, the Minister must consult the Minister responsible for Local Government,
affected municipalities and organized Local Government, the Financial and
Fiscal Comm ission, and other Organs of State and interested persons. No
regulation in this regard has been promulgated".

Page 12 of 68
25. In paragraph 5.6 of the same letter the following appears:
"In the Reviewed 2017 I 2018 Integrated Development Plan (/DP) of Co T, the
only reference to cleansing the City is that "Refuse removal and illegal
"dumping need urgent attention and the City as a whole is becoming filthy,
which must be addressed. Our refuse removal teams affected and monitored
on the respective schedules?" [P5/1005 of the Co T /DP published on the
website of National Treasury - no copy was available on the Co T website].
No proof could be found that the proposal of City Cleaning Levy was contained
in the Peremptory Financial Plan, which every municipality must adopt as part
of its annual /DP as prescribed by Regulation 2(3) of the Local Government -
Municipal Planning and Performance Management Regulations, 2001
(published under GN R797NGG22605 of 24 August 2001 ). In addition, no
proof could be found that the introduction of this cleansing levy was subjected
to a process of public participation or of any compromises reached in this
instance.
26. The City responded on 12 December 2017 stating that: "a municipality has
executive authority in respect of and has the right to administer the Local
Government Notice listed in Part B of Schedule 4 and Part B of Schedule 5 of
the Constitution of the Republic of South Africa, 1996. Refuse removal, refuse
dumps and solid waste disposal is listed as one such function in Part B of
Schedule 5. Section 156(5) of the Constitution also determines that a
Municipality has the right to execute and exercise any power concerning a
matter reasonably necessary for, or incidental to, the effective performance of
its functions. A municipality exercises its executive authority by, inter alia,
"imposing and recovering rates, taxes, levies, duties, service fees and
surcharges on fees, including setting and implementing tariff, rates and tax

Page 13 of 68
and debt collection policies;" (Section 11 of the Local Government: Municipal
Systems Act 2000 (Act 32 of 2000)."
27. It would seem to me that the concerns raised by the applicant in its letter to
the City did not deal with the objection lodged by the applicant. At paragraph
9 of the City's letter the following appears:
"Given that the City Cleaning Levy Charge by the City if not a tax or surcharge
but a direct service charge none of the incorrect assumptions inferred in your
letter in this regard are applicable".
28. The applicant continued corresponding with the City in February and April
2018 and ultimately the City did not implement the cleansing fee and this
position remained unchanged until the resolution adopted by the City which
forms the subject matter of this application.
29. The applicant contends that on 14 March 2025 the Mayor of the City
distributed several documents under cover of a letter with even date
comprising of a document titled "2024 I 2025 Funding Plan to improve the
unfunded position of the City". This appears at Annexure "FA6" (CaseLines
001-50) and "FAT' (Caselines 001-51) to the founding affidavit and at
paragraph 3, under the heading "BACKGROUND" the Funding Plan set out
the City's estimation of the reasons for it being in an unfunded state and the
need to improve its current cash position, the revenue value chain, revenue
collection rate and current ratio; and to prioritize revenue collection. In
paragraph 4 of the Funding Plan the following is included:
" ... waste collection into a sustainable trading service by: "Inter alia introducing
plans to introduce the environmental charge in 2025 I 2026, informed by the

Page 14of 68
audit of waste collection services, can be considered as part of the program
to fund the needed changes to make waste collection a trading service." "
30. The applicant refers to paragraph 6.1 of the Funding Plan which in turn refers
to Section 7 4(2) of the Systems Act, stating:
"Tariffs must be set at a level that facilitate the financial sustainability of the
service. The City is exploring the introduction of an environmental charge for
all properties not receiving City service - including all vacant properties above
150 000. There are 194 396 residential accounts without waste and 62 055
business accounts without waste with possible revenue per annum of R540
million. This will come effect in (sic) 25126 financial year".
31. On 2 April 2025 the applicant took issue in writing with the Municipal Manager
of the City referring to the Funding Plan and what is intended and requested
the City to reconsider its position. The City failed to respond.
32. On 24 April 2025 the applicant again corresponded with the Municipal
Manager of the City therein providing formal comments about the intended
implementation of the City Cleaning Levy. By 15 May 2025 the City having
not responded, the applicant's attorney addressed a further letter to the City's
Municipal Manager therein referring to the City's publication of the draft 2025 /
2026 Medium Term Revenue and Expenditure Framework ("the MTREF") the
City failed to respond and on 29 May 2025, unbeknown to the applicant, the
council adopted the MTREF.
33. Instead, on 30 May 2025 the City's attorneys of record corresponded with the
applicant (Annexure "FA 11" to the founding affidavit). In this letter the following
paragraphs are important:

Page 15 of 68
"5. The Cleansing charge also known as the Environmental charge, falls
within the ambit of a service-related tariff or a surcharge as contemplated
by Section 229(1)(a) of the Constitution; Sections 74 and 75A of the
Municipal Systems Act 32 of 2000 (MSA ); and the constitutional duties
imposed on municipalities to ensure clean and sustainable environments
under Section 24 of the Constitution." At paragraph 6 of the same letter
the City's attorneys state the following:
"6. The Cleaning levy is not a general tax, it is a service-related fee imposed
to recover the system-wide costs of public cleansing, including street
sweeping, illegal dumping enforcement, landfill rehabilitation, and the
operation of municipal waste infrastructure not directly billable to refuse
collection clients." At paragraph 12.1.4 of the City's attorneys' letter the
following appears:
"12.1.4 "City Cleaning is an essential unbillable service and municipality
must provide to achieve the objective of a clean environment as per
Section 24." (this means Section 24 of the Constitution).
34. The resolution of council dated 29 May 2025 was annexed to the City's
attorneys' letter of 30 May 2025. On page 4 of this document (Annexure 12
to the founding affidavit, Caselines 008-78) under the heading "Objection to
City Cleansing Levy- Tax not tariff', the following appears:
34.1 "Several submissions were received from the South African Property
Owners Association (SAPOA), DA Caucus, AfriForum, Agricultural
Holding, community members w ith the following concerns:
• The proposed levy constitutes double taxation, as cleaning

Page 16 of 68
seNices and similar non-revenue generating functions are
traditionally and legislatively funded through property faxes.
• Tariffs must reflect the actual usage of municipal services rather
than imposed fixed charges.
• The introduction and the determination of the tariff of the new City
Cleansing Levy in the current economic climate is questioned. It
is simply determined as 50% of the refuse removal tariff for a 2401
x 1 per day removal. Although the principle of a monthly fixed
charge (Flat rate) for the service is recognized, it should be based
on the actual cost and then made applicable on all consumers."
35. Adjacent to the recorded objections and under the heading "Response" , the
following appears:
• "Tax-is a charge which arises simply from owning or possessing a
property, i.e. the charge flows as consequence of the ownership of
that property.
• Charge - is a fee connected to a use or benefit of a seNice, i.e. a
property has been provided with the opportunity to use a seNice and
have attracted a charge or a property or as resident benefit from a
service provided.
• The City Cleansing Charge refers to a fee levied by municipalities for
providing waste-related services such as, street cleaning and general
urban hygiene management. These services are essential for
maintaining public health and a clean environment and ae directly
provided to the residents and businesses who pay for the charge.
• The Constitution of the Republic of South Africa, 1996 under Section
156(1)(a) and Part B of Schedule 4, empowers municipalities to

Page 17 of 68
administer functions such as cleansing and waste removal.
Furthermore, Section 229(1)(a) of the Constitution provides that:
':4 municipality may impose surcharges on fees for services provided
by or on behalf of the municipality".
• This provision legally affirms that municipalities may levy charges for
the services they render, which includes urban cleansing. These
services are not considered taxes because they are not compulsory
contributions for general revenue purposes; instead, they are
payments linked to direct service delivery benefit." Based on this
resolution, it is clear that the City relied on its powers in terms of
Section 229(1 )(a) of the Constitution in resolving to impose the
cleansing levy in issue. In considering the City's tariff policy, effective
1 July 2025, located at Caselines 001-79 I had regard to paragraph
3.3 of the policy which refers to the Municipal Systems Act, 2000 (Act
32 of 2000} which enables the City to impose and recover rates, taxes,
levies, duties, service fees and surcharges on fees. At subparagraph
d) of paragraph 3 it is specifically stated that tariffs must reflect the
costs reasonably associated with rendering the service, including
capital, operating, maintenance, administration, including credit
control and debt collection measures as well as the replacement costs
and reconnection fees, and interest charges as well as:
(i}
"(ii) The amount of money paid by individual users for services
rendered should generally be in proportion to the use of that
service."

Page 18 of 68
36. In paragraph 20 of this policy under the heading City Cleansing Levy for
households, business not using the solid waste removal service of the
mun icipality, reference is made to the City's constitutional obligations and
again there is provision under Section 229(1 )(a) of the Constitution which
provides that a municipality may impose surcharges on fees for services
provided by or on behalf of the municipality.
37. At subparagraph e) the following appears:
"The tariff for City cleansing (included in the waste removal tariff) is levied
against all premises to the equivalent of the number of waste-removal service
units that are provided or could be provided at the premises. These tariffs are
applicable irrespective of who removes the generated waste from the
premises."
38. From a plain reading of subparagraph e) it would appear that the City has
appropriated to itself the right to charge residents and businesses a waste
removal service fee even under circumstances where the City has not
removed the generated waste from the particular premises.
39. On 3 June 2025 the applicant's attorneys of record addressed
correspondence to the City and recorded therein the reasons why the council
resolution is unlawful in view of the City having approved the MTREF and the
tariff policy. The City was invited to present a solution and the imposition of
the tariff policy. However, on 9 June 2025 the City, through its attorneys of
record, advised the Applicant that the resolution had been passed and that it
would come into effect on 1 July 2025. The applicant has uploaded onto
CaseLines under 001-94 an unsigned publication of the City of Tshwane
Metropolitan Municipality Waste Management By-law.

Page 19 of68
40. The applicant contends that the reasons relied upon by the City show that the
cleansing levy is unlawful and so much is evident from the City's own
documentation which has been confirmed by the City's attorneys of record.
The applicant emphasized that the City's reliance on Section 229(1)(a) of the
Constitution and according to the applicant, the City specifically and expressly
disavows reliance on Section 229(1 )(b) of the Constitution which provides that
the City may impose other taxes, levies and duties and if it is authorized by
national legislation. The applicant further contends that Section 229(1 )(a) of
the Constitution authorizes the City to impose rates on property and
surcharges on fees for services provided by or on behalf of the City .. However,
the C ity does not contend that the cleansing levy is a rate on property.
Consequently, the applicant contends that what the City is left with is its
contention that the cleansing levy is a surcharge on fees for services provided
by or on behalf of the City.
41. The applicant finds support for the aforesaid in the City's attorneys of record's
letter confirming that "the Cleansing charge, also known as the Environmental
charge falls within the ambit of a service-related tariff or a surcharge as
contemplated by Section 229(1)(a) of the Constitution ... ". The applicant relies
on Section 4( 1) of the Systems Act to illustrate that the City can only impose
a surcharge where there is a fee payable for services. The aPPlicant further
contends that there may be a fee without surcharges however. there cannot
be surcharges without fees for services.
42. The applicant further relies on the Mun icipal Fiscal Powers and Functions Act,
12 of 2007 which was specifically promulgated to regulate the exercise of
power by the City in imposing surcharges on fees for services provided under
Section 229( 1 )(a) of the Constitution. The aforesaid act also makes provision

Page 20 of 68
for the authorization of taxes, levies and duties that municipalities may impose
under Section 229( 1 )(b) of the Constitution. However, Section 229( 1 )(b) does
not find application. Section 1 of the Municipal Fiscal Powers and Functions
Act defines a 'municipal surcharge' as a charge in excess of the municipal
base tariff that a municipality may impose on fees for a mun icipal service
provided by or on behalf of a mun icipality in terms of Section 229(1)(a) of the
Constitution. The applicant contends that this provision is a further illustration
that there ma y only be a surcharge if there is a fee for services.
43. Section 74(1) of the same act makes provision for the City to adopt and
implement a tariff policy on the levying of fees for municipal services provided.
Section 7 4(2)(b) of the same act provides that the amount which individual
users are liable to pay for services should generally be in proportion to the use
of that service and Section 7 4(2)( d) further provides that the tariffs must reflect
the costs reasonably associated with rendering the service, including capital,
operating, maintenance, administration and replacement cost and interest
charges. In the letter addressed to the applicant by the City's attorneys of
record, the following appears:
" .. .the cleansing levy .. .is a service-related fee to recover system-wide costs
of public cleansing, including street sweeping, illegal dumping enforcement,
landfill rehabilitation, and the operation of municipal waste infrastructure not
directly billable to refuse collection clients ... The nature of public cleansing
services such as street sweeping, refuse disposal monitoring and illegal
dumping clean-up, is such that usage cannot be measured on an individual
basis. Hence, a fixed availability or system contribution fee is both rational
and lawful".

Page 21 of 68
44. This being the case documented by the City, the applicant contends that the
cleansing levy does not comply with Section 7 4 of the Systems Act.
45. The applicant therefore argues that the City seeks to recover costs for
municipal services irrespective of whether residents who benefit from the
services are not specifically identifiable individuals, but simply members of the
general public.
46. The applicant further contends that Section 1 of the Fiscal Powers Act defines
a "Municipal Base Tariff' as the fees necessary to cover the actual cost
associated with rendering a municipal service, and includes (a) bulk
purchasing costs in respect of water and electricity, reticulation services, and
other municipal services; (b) overhead, operation and maintenance costs; (c)
capital costs; and (d) a reasonable rate of return, if authorized by a Regulator
of or the Minister responsible for that municipal service. The applicant
therefore argues that the City has not complied with Section 1 aforesaid
because on its own version the City argues that the cleansing levy is a
surcharge and not a base tariff.
47. The applicant contends that Section 1 of the Fiscal Powers Act defines a
'municipal tax' as a tax, levy or duty that a municipality may impose in terms
of Section 229( 1 )(b) of the Constitution, however, reiterates that the City has
disavowed reliance upon Section 229(1 )(b). The applicant thus contends that
it has demonstrated that the passing of the resolution which includes the
cleansing levy dated 29 May 2025 and the City's attempt to pass the by-law is
unlawful and in conflict with the Constitution and national legislation. The
applicant has referred the court to Section 156(2) of the Constitution which
empowers the City to make the by-laws for the effective administration of
matters which the City has the right to administer; however, Section 156(3)

Page 22 of 68
provides that a by-law which conflicts with national legislation, is invalid.
48. The applicant has further highlighted the provisions of Section 75A of the
Systems Act which provides that a municipality may levy and recover fees,
charges or tariffs in respect of any function or service of the City and that these
are levied by a municipality by way of resolution passed by the council of the
municipality with a majority vote of its members. The applicant qualifies the
reference to Section 75A and emphasizes that Section 75A is not an
overriding catch-all provision which is designed to dispense with all other
constitutional and statutory provisions.
49. The applicant argues that the cleansing level is further unlawful as a result of
it being irrational. The applicant refers to the City's motivation in endeavouring
to impose the cleansing levy in 2017 and refers back to the City's attempt to
address the shortfall in its budget as set out in the Funding Plan to improve
the unfunded position of the City. I had already dealt with the Funding Plan
(Annexure "FAT' to the Founding Affidavit). The applicant has argued that the
primary motivation for the Funding Plan was not to provide or improve service
to the residents and businesses who do not enjoy waste removal services, but
rather to address the difficulties in the City's budget. The applicant thus
argues that the Funding Plan indicates that the City is aiming to collect
R540 million for the 2025 I 2026 financial year and has identified 194 396
residents and 62 055 business accounts who do not receive waste collection
services from whom the City intends to recover R540 million.
50. The applicant elaborates on the issue of irrationality by arguing that the City is
mistaken in its notion that the 194 396 and 62 055 businesses have the benefit
of the City's services w ithout having to pay for such services. These residents
and businesses do not use the City's services for waste collection and

Page 23 of 68
disposing of waste and, as the applicant argues these residents and
businesses create revenue for the City· which is directly linked to the City's
Waste Management Policy which in turn includes fees for dumping domestic
waste at waste removal sites and annual waste transportation permits.
Moreover, the applicant argues that these residents and businesses alleviate
the City's waste burden by assisting the City to comply with its constitutional
and other legal obligations concerning waste, cleansing and the environment,
and consequently it is irrational to expect these residents and businesses to
pay for a cleansing levy where they do not receive any services from the City.
51. Paragraph 3.3(d) of the City's Tariff Policy provides that tariff must reflect the
costs reasonably associated with the rendering of the service and that the
amount of money to be paid by individual users for services rendered, should
generally be in proportion to the use of that service. The applicant contends
that it is irrational of the City to attempt the shortage of revenue collection
because the City does not have the means or the opportunity to collect
revenue as a result of its own inefficiencies. Furthermore, paragraph 3.3(h)
of the City's Tariff Policy provides that tariffs must reflect the econom ical,
efficient and effective use of resources, the recycling of waste and
encouragement of achieving other appropriate environmental objectives. In
addressing the rationale provided by the City the applicant contends that the
City maintains that the cleansing levy is to recover the costs of illegal dumping.
The applicant emphasizes that illegal dumping is specifically provided for in
Section (f) for Schedule of Tariffs for Refuse Removal Services and this is
found in Annexure "FA16" to the Founding Affidavit (Caselines 001-50).
52. The applicant further contends that the City relies on the cleansing levy to
recover the costs of landfill rehabilitation and the operation of mun icipal waste

Page 24 of 68
infrastructure. Section (e) however of the Schedule of Tariffs for Refuse
Removal Services (Annexure "FA16" to the Founding Affidavit) provides for
revenue from dumping of refuse at waste disposal sites and similarly, Section
(I) provides for revenue from applications for waste transportation permits.
53. The applicant further refers to Section 4(2) of the Systems Act which imposes
a duty of the council of the City to exercise the City's executive and legislative
authority and use the resources of the City in the best interest of the local
community; provide, without favour or prejudice, a democratic and
accountable government; encourage the involvement of the local community;
strive to ensure that municipal services are provided to the local community in
a financially and environmentally sustainable manner; consult the local
community about the level, quality, range and impact of municipal services
provided by the mu nicipality; promote a safe and healthy environment in the
municipality; and contribute, together with other Organs of State, to the
progressive realization of the fundamental rights contained in the Constitution.
The applicant contends that the City has fallen short of its legal obligations
and further failed to consider the applicant's comments on the intended
cleansing levy.
54. The applicant, relying on the contentions as set out above seeks an order
declaring the cleansing levy to be unlawful, invalid and for such levy to be set
aside. The applicant contends further that if such order is granted, it should
include all the documents or portions of the documents which permit the
implementation of the cleansing levy, including the relevant portions of the
MTREF, the resolution, the Tariff Policy and the by-law, if such by-law has
been published. To the extent that the by-law has not been published, the
applicant seeks an order prohibiting the City from publishing the by-law and to

Page25 of 68
take all such steps to ensure that such by-law will not be published.
55. The applicant further seeks that the order be extended to include that, to the
extent that the City has activated its billing systems to render accounts to the
residents and businesses for the cleansing levy, that the City be compelled to
forthwith take all measures necessary to ensure that such residents and
businesses are not billed for the cleansing levy and, to the extent that such
residents and businesses have been billed for the cleansing levy, that the City
forthwith take all steps necessary to ensure that the accounts of residents and
businesses who were billed for the cleansing levy, be credited with an amount
equal to the cleansing levy in the following billing cycle.
THE RESPONDENTS' CASE
56. The first to fourth respondents filed an answering affidavit wherein almost a
quarter of the affidavit is a repetition of the applicant's case and its contentions.
The first to fourth respondents (the respondents) take issue with the urgency
of the application and argue that urgent proceedings in terms of Rule 6(12) of
the Uniform Rules of Court are not intended to limit a right to fair hearing
guaranteed by Section 34 of the Constitution. I have considered the
submissions made in respect of urgency, on the basis contended by the
respondents that they had insufficient time to file the necessary papers. All
the parties were afforded additional time to supplement their papers and,
despite the respondents arguing that they had 2 days to file an answering
affidavit, it is factually so that the answering affidavit were served 13 days after
service of the applicant's notice of motion and founding affidavit.

Page 26 of 68
57. The respondents contend that the nature of this application is that of a judicial
review and as such there are specific time periods within which the review
proceedings are dealt w ith, namely 70 days, according to the respondents.
This argument naturally flies in the face of the urgent nature of the application
and the facts before court which have to be considered and adjudicated upon.
Furthermore, the respondents rely on the applicant's alternative proposal that
if the City charged any resident or business with a cleansing levy, then the
order proposed by the applicant that the City credit such amounts in the next
billing cycle vindicates any unlawfulness on the part of the C ity in so charging
for the cleansing levy. I find this to be an untenable argument. I will deal with
urgency and locus standi in more detail hereunder.
58. The respondents further argue that the law is clear that where the municipality
unlawfully imposes rates, taxes, or tariffs and/or charges fees or surcharges
on a fee, the setting aside of the underlying decision would invariably be
coupled with an order directing the municipality to repay the amounts
unlawfully paid to it. These submissions do not support the respondents' case
neither do they address the issue of legality as contended by the applicant.
The respondents contend that if it turns out that the impugned decisions are
declared unlawful. the court would be in a position to grant substantial redress
to the affected ratepayers in the form of an order of reimbursement. Again, I
find this argument to be untenable, and it falls short of addressing the
legislative concerns and the City's failure to adhere to applicable legislation.
59. The respondents argue that the harm projected is not irreparable and there is
no real immediate prospect of the alleged harm. This submission disregards
the legality issue and the City's failure to comply with the legislation applicable
to it.

Page27 of68
60. The respondents' argument that the urgent motion court is not geared to deal
with complex legal questions is gainsaid by the fact that this application was
case managed by the Acting Judge President and allocated to be heard as a
special motion over a period of 2 days.
61 . The City relies on the cleansing levy that was decided on as a concept through
the medium of Waste Management By-law, Item 40(5) issued under Local
Authority Notice 1393 of 2016 [24 August 2016]. A copy of such by-law is
attached to the answering affidavit. This by-law appears not to have been
promulgated; however, the City contends that it has decided on the tariff of
R194.37 per month in terms of Section 75A of the Local Government:
Municipal Systems Act [Act No. 3 of 2000J. The City contends that relying on
Section 75A aforesaid it gave notice to this effect under Local Authority Notice
648 of 2025 (18 June) [which is found at Annexure "RAA3" to the answering
affidavit]. The Waste Management By-law of 24 August 2016 is raised in the
answering affidavit for the first time and does not appear in any of the
correspondence between the parties. The respondents thus contend that the
applicant has not attacked such By-law, and it remains unchallenged and
exists as a matter of law and fact.
62. The respondents deny that the City does not render a waste management
service to the 194 396 residents and to 60 255 businesses and argues that
many of these ratepayers' waste is ultimately delivered at the facilities of the
City for processing and management. The City contends that many of the
ratepayers to be affected by the cleansing levy do receive service from the
City in respect of waste collection into bins and the collection of transportation
of bins to waste management sites. Given the fact that there are thousands
of residents and businesses involved it is worrisome that the City simply refers

Page 28 of68
to these residents and businesses as "many of the ratepayers", without
identifying such ratepayers and simply making a sweeping comment about the
ratepayers receiving a service from the City.
63. The respondents further contend that the City has never denounced or
neglected its constitutional obligation to provide all citizens within its territory
with waste management services. It contends that the service is available to
all citizenry, and it is only the affected ratepayers who choose not to take up
an available service who will be affected.
64. The respondents describe in detail the infrastructure capacity of the City in
respect of its landfill sites, the different refuse sites, the vehicles it uses to
provide the services including compacted trucks and issues 15 000 waste
containers. In making these submissions, the City simply avoids answering
its failure to comply with the applicable legislation in issue.
65. The respondents take issue with the applicant's standing and contends that
the applicant has not conveyed its case clearly in the remit of Section 38 of
the Constitution. In addition, the respondents contend that the applicant has
failed to identify a right in Chapter 2 which is infringed upon by the impugned
decision.
66. The respondents further argue that the City has no difficulty with the applicant
pursuing these proceedings as an only interest litigant but that the applicant
must, at a minimum, allege that the impugned decision will affect its position.
In my view, this contention is misplaced and yet again the respondents seek
to avoid addressing the clear issue of legality on the facts pertaining to this
case and not to describe its processes in general.

Page 29of 68
67. Of importance is the respondents' contention that the applicant has conflated
the introduction of a cleansing levy concept and the determination of a
cleansing tariff. The respondents argue further that a review against a concept
introduced on 24 August 2016 cannot be urgent in June 2025. However, as I
will more fully deal with this aspect, the City did not rely on the 2016 bv-law
and can thus not relv thereupon. The obvious answer is that the Ta riff Policy
of 2016 did not form part of the court papers, and I will deal with this more fully
hereunder.
68. What appears to be worrisome, the respondents contend to the extent that the
applicant alleges that the City does not provide a service, the C ity contends
that the service is available for the rateoavers to take up. The inescapable
inference is that even if the service is not provided to ratepayers, the
ratepayers must pay for the cleansing levy.
69. The respondents deny that the cleansing levy is a tax. The respondents
contend that the City is actively engaged in providing a waste management
service and that the waste management service is available for all citizenry to
take up.
70. The deponent to the respondents' answering affidavit alleges that the City's
effort to introduce a payable tariff in 2016 were aborted for reasons which
prevailed in 2017 and are unknown to the deponent. At Annexure "RAA6" of
the answering affidavit the council resolution in respect hereof appears.
71. The respondents further contend that since 2018, after the aborted process,
the City carried the costs of waste management without the contribution of
many other ratepayers such as the ones to be affected presently. The number
of these ratepayers, according to the City, has now significantly increased,

Page 30 of 68
and it is not possible for the City to continue to provide a service for these
ratepayers without a contribution on their part, and/or to make a service
available to them, without a contribution on their part.
72. The respondents disclose that the City operates the waste management
activities on an ongoing deficit of approximately R150 million. The
respondents contend that the actual work that is required for waste
management is in the region of R500 million, more than what the City currently
expends. The respondents further contend that the City's improvement of its
cash position is specific to the expenses of the City and for current purposes,
the City requires added contribution from "free riders".
73. The respondents contend that the City cannot continue to carry costs
associated with waste from 194 396 in respect of residential property
ratepayers and 60 255 in respect of business ratepayers without any
contribution on their part. This, in my view, is a clear admission of the numbers
of residents and businesses who may be affected and the fact that these
residents and businesses do not make use of the City's services.
7 4. The respondents further contend that the applicant's arguments are misplaced
in that there has never been a direct attack on the Waste Management By­
law, Item 40(5), issued under Local Authority 1393 of 2016 [24 August 2016].
In this regard the respondents further contend that the reality is that this by­
law introduced a cleansing levy in 2016 and the subsequent action taken on
18 June 2025, in terms of Section 75A of the Local Government: Systems Act,
introduced the tariff payable. I will deal with the reasons why the respondents'
contentions fall short of compliance with the applicable legislation. Moreover,
the 2016 Tariff Policy did not form part of the court papers, and this submission
is a clear indication that the City avoided the real issues of legality and shifted

Page 31 of 68
the goal posts at every opportunity.
75. It is crystal clear that the respondents contend that where a service is available
from the City, failure to take up such service occasions a cost.
76. Lastly, the respondents contend that the current proceedings do not constitute
vindication of constitutional rights and that this being the case, the application
ought to be dismissed with costs on the scale as between attorney and client,
including the cost of two counsel.
APPLICANT IN REPLY
77. The applicant in its replying affidavit emphasizes how the City has sought to
avoid the illegality of the cleansing levy by relying on an old by-law of 2016
and not providing any lawful basis for the cleansing levy in the City's tariffs
which it has now published. The applicant contends that the tariff does not
have its origin in the old by-law and the City cannot rely on such old by-law
because the tariffs were published on 18 June 2025 (after the filing of this
application) and published in Schedule 5, Refuse Services, Tariffs for Refuse
Removal Services which are found at Annexure "RAA2" of the replying
affidavit at 004-264 to 004-272 on Caselines. These tariffs were based on
the MTREF and the new tariff policy that was adopted by the council of the
City on 29 May 2025.
78. The applicant argues that under circumstances where Schedule 5 was
published without the City promulgating the new by-laws, including the new
tariff policy, this must also be declared unlawful, invalid and be set aside to
the extent that it provides for the cleansing levy. The applicant contends that
Schedule 5 is not based on the old by-law but on the tariff policy that has not

Page 32 of68
taken effect. In substantiation hereof, the applicant states that one has to have
regard to the relevant content of Schedule 5, as it has been published, and
compare it with the new tariff policy and then the old by-law. A simple
comparison shows that Schedule 5 finds the source of the tariffs including the
cleansing levy in the new tariff policy and not in the old 2016 by-law.
79. Schedule 5 provides for City cleansing to be levied against all premises with
no waste account to the equivalent of refuse removal units that are provided
or could be provided at the premises. The new tariff provides for City cleansing
and is levied to all premises equipped to the equivalent of the number of waste
removal service units that are provided or could be provided at the premises.
Schedule 5 further provides that these tariffs are applicable irrespective of who
removes the generated refuse from the premises. The new tariff provides for
the tariffs to be applicable irrespective of who removes the generated waste
from the premises.
80. The applicant thus contends that if a comparison is drawn between Schedule
5 and the new Tariff Policy, the old by-law only contains one provision that
vaguely resembles a reference to cleansing. The old by-law does not
resemble Schedule 5 at all because Section 40(5) provides:
"[t}he owner or occupier within the area of jurisdiction of the Municipality is
liable for the full payment of City cleansing components in accordance with
the applicable tariff. "
81 . Thus, argues the applicant, unlike the new Tariff Policy in Schedule 5, the old
by-law has no provisions concerning anything similar to the provisions outlined
by the applicant and this demonstrates that the City's reliance on the old by­
law is a ruse. Furthermore, if the C ity wished to rely upon the old by-law it

Page 33 of68
would have to show that the cleansing levy was in accordance with a tariff
policy that was enforced during 2016 and that the policy remains in force.
82. The applicant contends that the justification for the cleansing levy is
unconvincing, premised on the old by-law and is directly contradicted by the
justification for the cleansing levy which the City provided to the applicant, via
the City's attorneys of record acting on the City's express instruction. So much
is clear and appears at Caselines 001-71 to 001-74.
83. The applicant refers to Section 74(1) of the Systems Act which provides that
the council of the City must adopt an implemented current policy on the levying
of fees for municipal services provided by the municipality itself or by way of
service delivery agreements which comply with the provisions of the act itself,
the MFMA and other applicable legislation. Section 75 of the Systems Act
provides that the council of the City must adopt by-laws to give effect to the
implementation and enforcement of its new tariff policy. The applicant
emphasizes that this is not what has factually occurred and the City, in its
answering affidavit does not contradict the applicant's contentions.
84. The applicant further contends that the unpromulgated by-law provides that:
"[t]he waste management service tariffs and charges will be determined in
terms of the tariff policy of the municipality". (Paragraph 35, CaseLines 001-
119).
85. Thus, the City cannot deny that it had knowledge that it had to pass
unpromulgated by-law and a by-law to give effect to the new tariff policy.
86. The applicant contends that the City is not forthcoming about what its
intentions are with the new tariff policy if one has regard to the resolution and

Page 34of68
other documents referred to in the founding affidavit. It is the applicant's case
that the City and deponent to the answering affidavit ought to know that the
function of public servants is to serve the public, and that the public has the
right to insist upon them to act lawfully within the boundary of their authority.
The applicant thus contends that the City has failed to take the court into its
confidence by fully explaining the facts so that an informed decision may be
taken in the interest of the public and good governance. This being the case,
the applicant contends that this provides further reason for the court to declare
the cleansing levy unlawful and to grant the additional relief. I will deal with
this more fully hereunder. The applicant, with reference to the City's answering
affidavit, contends that the City has now sought a deviation from the rationale
for the cleansing levy, which is found in its own documents, including the City's
attorneys' explanation on the City's instruction. This deviation is further
evidence that the cleansing levy is irrational.
87. The applicant refers to paragraphs 49 - 60 of the answering affidavit
(CaseLines 005-7) wherein the deponent to the answering affidavit states the
following:
"In the result, I submit that the City has the capacity to provide the service and
offers the service to ratepayers. The waste management service is available
to all ratepayers, and it is a pity that some ratepayers choose not to take up
the available service".
88. The inference, according to the applicant is that the City is attempting to
contradict what the applicant's case is, that the City does not provide a waste
management service to the 194 396 residents and 62 055 businesses. The
City further refers to members of the public who choose not to make use of
the services as "freeloaders". The applicant thus contends that this is an

Page 35 of 68
attempt by the City to make members of the public pay for waste removal
under circumstances where a sector of the public does not make use of the
City's services.
89. 1 note from paragraph 12.1.4 of the City's attorneys' letter (001-73) where the
following appears:
"City cleansing is an essential unbillable service a municipality must provide
to achieve the objective of a clean environment ... ".
90. However, the applicant contends that the City does not provide any evidence
where the City is capable of providing waste removal services, where the
public refuses that service. Further in this regard, the applicant contends that
many affected members of the public have had to find alternative means out
of necessity and this is uncontradicted by the City. The applicant refers to the
supporting affidavit by Mr Kruger of Waste Group and his knowledge on the
subject is not disputed by the City.
91. The applicant has demonstrated that the City has not denied that the specific
members of the public pay for services, including keeping the City clean,
providing for and emptying public dustbins, litter collection, street sweeping
and so forth, by way of payment of property rates. The City does not disclose
to the court that, in relying on the old by-law, this contradicts the City's case in
respect of the rationale of billing those who choose not to use the City's waste
services. In reality the members of the public in issue have no choice because
the City has not provided them with services relating to waste removal.
92. The applicant has referred the court to paragraph 3 under the heading
"Responsibilities" (Caselines 004-68) where the following appears:

Page 36 of 68
"(1) The municipality shall provide or ensure a service for the collection and
removal of business waste and domestic waste from a prem;ses at the
applicable tariff.
(3) The occupier of the premises on which business or domestic waste is
generated is liable to the municipality for payment of the applicable tariff in
respect of collection, removal and disposal of domestic and business waste
from the premises and remains liable for payment of the tariff ... "
93. The applicant thus argues that there is no reasonable basis upon wh ich it can
be accepted that any member of the public w ill refuse a legitimate service
provided by the City instead of paying a private waste removal company.
94. The scenario contended by the applicant appears in the new unpromulgated
by-law (Annexure "FA 16" to the founding affidavit) and the old by-law. The
applicant refers to Section 25(3) (CaseLines 004-80) which provides:
"The owner of the property or premises remains liable to pay the prescribed
municipal service fee for the provision of the municipal service, and is not
entitled to exemption from or reduction of the amount of such fee by reason of
not making use, or making partial or limited use of the municipal service."
95. The applicant further refers to Section 36(2) (CaseLines 004-81) where the
following appears:
"Where a waste removal service cannot be rendered in respect of premises
because of the action of the owner and/or the occupier of the premises, the

Page 37 of 68
owner and/or the occupier remains liable for the payment of the costs of the
service in terms of the provisions of section 40(1)."
96. The above approach, the applicant contends, is vastly different from the
cleansing levy approach regard being had to the old and the unpromulgated
by-laws the applicant contends that is lawful and rational because a member
of the public would then pay for the service of waste removal and should such
member fail to make use of it despite it being available, and offered by the
City, the specific member of the public must then pay for such service. This
is vastly different to circumstances where the City does not or cannot provide
waste removal services. due to no fault of the member of the public and as
such. the public does not have to pay for such service.
97. The applicant emphasizes, in support of its contention of irrationality, that
when the City called for public participation, it did so with reference to the
MTREF , which included the new tariff policy and not on the basis of the old
by-law. Thus, if the City's intentions were to rely on the old by-law, the City
must let the public know and this would render the entire process unlawful.
The applicant argues that this is a demonstration that the City never sought to
rely on the old by-law for the imposition of the cleansing levy and now that the
City has realized that it acted unlawfully, the reliance upon the old by-law is a
belated ploy.
98. The City has challenged the applicant to provide evidence of private waste
collection which pay the City for use of its waste disposal sites. The applicant
has annexed a statement of account from the City provided to the applicant
by Smart Waste, a private waste removal company. This statement is
attached to the replying affidavit as Annexure "FX 1" and is referred to
CaseLines 005-11. The statement reveals that Smart Waste is billed for

Page 38 of 68
domestic waste dumped by its vehicles at the City's waste disposal sites. A
confirmatory affidavit by Mr Claassen of Smart Waste has been filed in
confirmation hereof. Consequently, the applicant contends that the City's
allegations that there is no cost for dumping at the City's waste disposal sites
for household waste is not factually true and the City's stance is further
contradicted by Schedule 5. The applicant argues that this is an important
point surrounding rationality: The public that receives no waste removal
services already for it, directly and indirectly.
99. Insofar as the City contends that the applicant is not acting in the public
interest or that it does not have any grounds to act in its members' interest is
misplaced. The nature of the inquiry is not what the citizenry prefers, but
rather about what the law demands. The applicant thus contends that it is the
City that is arrogating onto itself a power to tax the citizen·ry unlawfully.
100. Insofar as the City contends that the applicant is not acting in the public
interest or that it does not have any grounds to act in its members' interest is
misplaced. The nature of the inquiry is not what the citizenry prefers, but
rather about what the law demands. The applicant thus contends that it is the
City that is arrogating onto itself a power to tax the citizenry unlawfully.
101. The applicant points out that it is important for organisers like the applicant to
intervene where the City places the public the impression that it is acting
lawfully and taxing them, where the City is not acting lawfully. The applicant
relies on a petition which appears on the applicant's website since 3 April
2025. On this petition, approximately 451 persons signed the petition, and the
applicant refers to an addition 1628 persons who signed the petition on the
applicant's Facebook page. The applicant has sought leave that this evidence,
being hearsay in nature and electronic data to be admitted in accordance with

Page 39of 68
the rules of court and the relevant legislation. Nothing turns on this issue as
will more fully hereunder.
102. The applicant takes issue with the City who suggests that if it is found that the
City has fallen short of the issue of legality and unlawfully imposed tariffs,
rates, taxes or surcharges on a fee, then the setting aside of the underlying
decision would invariably be coupled with an order directing the City to pay
the amounts unlawfully paid to it. The applicant argues that this does not
address or remove the harm caused because it constitutes a notion or future
solution to some of the effects of the harm that may be caused by the City's
illegality. The applicant emphasises that the process of repaying or crediting
accounts has historically been an administrative nightmare with individual
households having been required to issue fomial disputes and ultimately
taking months to obtain a credit from the City.
103. The applicant further contends that the above solution offered by the City is
not just and equitable and is simply not an answer to the City's failure to
comply with the legality issues. Furthermore, by relying on Section 40(4) of
the old by-law the City exacerbates the situation because in the aforesaid
section provision is made for a person who fails to pay the applicable tariff to
be found guilty of an offence. (CaseLines 004 - 85)
104. The applicant contends that the City's attack on the urgency of this application
is the City's mistaken reliance on the old by-law. The applicant has not made
out a case based on the old by-law and contends that the triggering event for
this application was the City's communication to the applicant on 30 May 2025
that the resolution including the cleansing levy had been passed by the
Council on 29 May 2025.

Page40 of68
105. The applicant illustrates that the City's approach on the basis that the
application does not belong in the urgent court due to the voluminous papers
uploaded deserves consideration. It is so that the City has uploaded hundreds
of documents which are irrelevant or to which the City has made no or little
reference. The provincial gazette no. 217 consists of 348 pages of which only
9 are relevant for purposes of this application. Moreover, the entire bid
document consists of 244 pages and is of no relevance to the legal issues
involved in this application. Moreover, the City has annexed the council's
resolution that led to the 2016 old by-law on which the City evidently relies,
and this comprises of 606 pages and is of no use to the court. Moreover, I
reiterate that the deponent to the answering affidavit alleges that he has no
knowledge of the circumstances why the tariff was brought in 2017.
106. The City has further annexed its entire budget and every support document
thereto which exceeds 1000 pages, and I cannot find any relevance of this
document to the issue of legality contended by the applicant.
107. Insofar as the City's complains that the applicant afforded it only 2 days to file
an answering affidavit, this is not borne out by the facts which are
demonstrated by the applicant and culminating in a period of 13 days wh ich
the City had to file an answering affidavit.
108. In response to the applicant's contention that the City did not consider the
recommendations made by the applicant but rather the objections, that the
City raises the questions whether the recommendations could have been
considered by the City because the comments were sent to the incorrect email
address. This allegation is naturally again set by the City's resolution of 29
May 2025 which clearly shows that the City had the applicant's comments in
its possession (Caselines 001 - 78).

Page41 of 68
RESPONDENTS' SUPPLEMENTED ANSWERING AFFIDAVIT
109. In line with the order of the Honourable Mrs Justice Barn the respondents filed
the supplementary answering affidavit, and, in my view, the supplementary
answering affidavit does not provide an explanation for the failure of the City
to comply with the legislative framework. I note that the City insists that the
waste management by-law is in fact a promulgated by-law in terms of no. 27 4
of the Provincial Gazette dated 24 August 2016. The City contends that there
can be no doubt as to the standing of the waste management by-law. I
furthermore note with concern that the deponent to the supplementary
answering affidavit alleges that the respondents had tried to locate the City's
tariff policy of 2016 however it is proved to be a timeous exercise, and this
policy will be produced on the date of the hearing of this application. I find the
allegation untenable and the City's contention being fundamentally anchored
on the tariff policy of 2016, it cannot be permitted to fail to produce the tariff
policy of 2016 and submit that it will be produced at the date of hearing.
110. The respondents again annex some 180 pages dealing with the tariff policy
with effect from 1 July 2018 and I cannot find the relevance of this tariff policy
if the City relies on the Tariff Policy of 2016 which it has not produced.
Furthermore, the respondents have annexed to their supplementary
answering affidavit the Local Authority Notice 1031 of 1018 which runs over
350 pages, and I respectfully cannot see the relevance of the document where
only one paragraph thereof dealing with schedule 5 and the refuse removal
service tariff is referred to.
APPLICANT'S SUPPLEMENTED REPLYING AFFIDAVIT
111. The applicant, in line with the order of Barn J supplemented its replying

Page 42 of 68
affidavit therein highlighting the City's reliance on a 2016 tariff policy that the
City cannot produce and the City's new attempt to invoke a 2018 tariff policy
and by-law.
112. The applicant contends that the City relies upon the following:
"[CJ Crucially, with due reference to section 74(1) of the Mun icipal
System's Act, the source of the cleansing levy is the City of Tshwane
Metropolitan Municipality Tariff of 2016. However, the City is not able
to produce the tariff policy of 2016 and it must follow that the City could
not have relied on the 2016 policy at the stage it adopted schedule 5
on 30 May 2025 (or when it was publicized on 18 June 2025) if the
policy could not be located. The inexplicable conclusion is that the
police could not have been considered and could not further a source
of the City's power at the relevant stage."
113. The Applicant further contends that the City's reasoning is further undermined
by Section 39 of the 2016 by-law which provided the following:
"The waste management service tariffs and charges will be determined in
terms of the Tariff Policy of the municipality in compliance with Section 47
of the [system's act]". This is found at Caselines 004 - 85.
114. Consequently, on the City's own version, the City did not have access to the
2016 tariff policy when it prepared, published, debated and adopted schedule
5. It must follow that the City acted contrary to the By-Law upon which it now
relies when it determined the new tariffs, including that of city cleansing. The
applicant submitted that even if the 2016 tariff policy exists it does not provide
the power which the City claims because the City itself acknowledges that

Page43 of68
there were later policies.
115. The applicant contends that the City, having realized that reliance upon the
2016 by-law relied upon in its answering affidavit does not come to the City's
assistance, and it now refers to a 2018 tariff policy and by-law. The 2018 by­
law, to which I have referred above, is not a by-law concerning waste
management or tariffs. This document is the ''property rates by-laws", which
give effect to the City's rates policy under the Rates Act. This document (at
52 - 206) refers to and includes the implementation of the rates policy and not
the 2018 tariff policy. The aforesaid by-law has no nexus to waste
management or any city cleansing tariff and the City cannot therefore not rely
thereupon for the source of its power.
116. The applicant contends that the City's reference to "Schedule 5 thereof. .. "
(paragraph 25, Caselines 052 - 11) is ill considered. Schedule 5 in this
context is not part of the property rates by-law which was attached by the City
but relates to a separate council resolution published under Section 75A(3)
(CaseLines 052 - 222).
117. Insofar as the 2018 tariff policy is concerned the applicant contends that
Section 6 thereof provides the following:
"[a]s far as practically possible, consumers should pay in proportion to the
demand of se,vices consumed ... [and that] ... [a] II households, with the
exception of the poor (indigent) should pay the full costs of services
consumed ... [and that it must include the] ... cost reasonably assoc;ated
with the rendering of the se,vice ... "(CaseLines 052 - 22, annexure SSA
to the supplementary answering affidavit.)

Page44 of 68
118. The applicant further contends that Section 7.1 thereof defines "trading
services as" "measurable services" that can be apportioned to an individual
consumer and lists waste removal "as an example". This is found at annexure
"SAA 1" to the supplementary answering affidavit at Caselines 052 - 022)
119. The applicant emphasizes that the versions before Court shows clearly that
the cleansing levy is not measurable and cannot be accurately apportioned.
The City itself describes the cleansing levy as an "unbillable service". The C ity
then relies on Section 10.4.1 on the 2018 tariff policy which refers to a
cleansing levy. However, this reference is not in line with the form of the levy
set out in the current schedule 5 of 18 June 2025 (annexure RAA2, Caselines
004-264).
120. The applicant emphasizes that the current schedule 5 states that the "tariff for
city cleaning is levies against all premises with no waste account" (Caselines
004 - 265). This includes both residential and business properties, with
limited exceptions. By contrast, Section 10.4.1 of the 2018 policy limits the
imposition to only residential properties with no waste account (Caselines 052
- 51). Businesses were excluded in 2018 but apparently are now included.
The applicant therefore contends that this inconsistency underscores the
City's reliance on the 2018 documents and is legally unsustainable. Even if
the 2018 tariff policy would serve as a source of power, the City exceeded its
power in applying the levy to businesses wh ich conflicts with the policy's
terms. Lastly the applicant contends that the reasons it has submitted in
respect of the 2016 by-law, the cleansing levy set out in schedule 5 is both
unlawful and irrational.
121. The applicant has drawn the court's attention to the City's 2017 withdrawal
notice but has omitted any reference to withdrawal notices between 2018 and

Page 45of 68
2025. This notwithstanding that tariff policies are reviews annually and the
City has also omitted to make mention of the tariff policies between 2018 and
2025. The applicant argues that these omissions are calculated to create the
impression that the 2018 documents remain in force. I agree.
DISCUSSION AND CONCLUSION
122. It is clear that the City intends to impose a levy on approximately 250 000
affected members of the public for services which the City does not provide to
such affected members. In doing so I have dealt with the legislative shortfalls
by the City and the issue of legality which the City has not taken seriously.
Because of the City's inability to provide sufficient waste removal services over
the years it has become necessary for the public to identify other means to
have their waste disposed of.
123. I am persuaded that the cleansing levy is unlawful for want of compliance with
the Constitution and the statutory framework under which the city is obliged to
operate. I am furthermore persuaded that the City does not have the power
to conduct itself as it intends to and that the intended cleansing levy is irrational
because the City's reasons for taxing the public are objectively sustainable.
124. The Applicant has referred the court to Rademan v Moqhaka Local
Municipality and Others (CCT) 41-12 [2013] l.ACC 11; 2013 (4) SA 225 (CC);
2013 (7) BCLR 791 (CC) (26 April 2013) at paragraph 42 where Zondo J
stated the following:
" ... where the Municipality claims payment from a resident or ratepayer for
services, it is only entitled to payment for services that it has rendered ...
There is no obligation on a resident, customer or ratepayer to pay the

Page 46 of 68
Municipality for a service that has not been rendered."
125. Section 1(c) of the Constitution provides that the Republic of South Africa is
one, sovereign, democratic state founded on the following values:
" ... c Supremacy of the Constitution and the Rule of Law .
126. Section 2 of the Constitution provides:
"This constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled. "
127. Section 172(1 )(a) provides:
"When deciding a constitutional matter within its power, a court-(a) must
declare that any law of conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency".
128. In respect of the powers of Local Government the Constitutional Court in
Fedsure Life Assurance Limited & Others v Greater Johannesburg
Transitional Metropolitan Council & Others 1999 (1) SA 374 (CC) at para [58]
state that:
''[i]t seems central to the conception of our constitutional order that the
Legislator an Executive in every sphere are constrained by the principle
that they may exercise no power and to perform no function beyond
conferred upon them by law."
129. The decision in Fed sure has been reaffirmed in various cases dealing with
Municipal Powers, including the imposition of rates and tariffs. In Thaba

Page47 of 68
Chweu Rural Forum and Others v The Thaba Chweu Local Municipality and
Others (737/2021) [2023) ZASCA 25 (14 March 2023) at para [37) the
Supreme Court of Appeal held that:
"It is important to bear in mind that in the fabric of our constitution, the First
Respondent is the sphere of government and the Second and Third
Respondents are organs of state. I constitutional democracy is based on the
rule of law. As stated by this Court in Kalil NO & Others v Mongaung
Metropolitan Municipality & Others1 ' ... the function of public servants-... is to
serve the public, and the community at large has the right to assist upon and
to act lawfully and within the bounds of the authority ... ' the municipalities are
thus expected not only to be conversant with the law applicable to their sphere
of Government, but also to conduct their affairs within the confines of the Jaw.
Should they fail to do so, the courts should not be impeded from considering
and granting an appropriate order that would have the effect of vindicating the
principle of legality. "
130. The starting point for the City when asserting that it has a right to do what it
has done or intends doing is found in Section 229 (1) of the Constitution.
131. I have had careful regard to the comprehensive heads of argument filed on
behalf of all the parties. Insofar as the respondents' heads of argument are
concerned, I find the heads unhelpful because the thrust thereof is the
continuation of an untenable argument put up by the City and falls short of
fully addressing the failure of the City to comply with applicable legislation.
Moreover, having conveyed to the court that the City will move and application
in terms of rule 6 (5) (e) of the uniform rules of court to introduce into evidence
1 2014 ZASCA 90; 2014 (5) SA 123 (SCA) at para [30]

Page48 of68
the 2016 Tariff Policy, there was no attempt to do so on Friday 25 July 2025.
That being the case, the City's opposition to the applicant's case was
unmeritorious and its continued and incorrect reliance upon a document which
was not before court, and incorrectly relied upon, in the face of incontrovertible
evidence of failure to adhere to the principle of legality. The City continued
vehemently with irrelevant and untenable arguments which did not assist the
court in any manner whatsoever. The challenge on the urgency and locus
standi of the applicant was disingenuous, given the facts of the application but
warrant an explanation, which will follow hereunder.
132. Insofar as the legality principle and municipal tariffs are concerned Section
1 ( c} of the Constitution provides: "The Republic of South Africa is one,
sovereign, democratic state founded on the following values: ... (c) Supremacy
of the Constitution and the rule of law." Section 2 reads: "This Constitution is
the supreme law of the Republic; law or conduct inconsistent with it is invalid,
and the obligations imposed by it must be fulfilled."
133. Section 172(1)(a} provides: "When deciding a constitutional matter within its
power, a court -(a) must declare that any law or conduct that is inconsistent
with the Constitution is invalid to the extent of its inconsistency."
134. In Rates Action Group 2006 ( 1) SA 496 (SCA) at paras (17] to [20] the City of
Cape Town charged separate amounts for sewerage and refuse removal; both
at least partially coupled to the value of the property and not on actual usage.
However , where the amounts were coupled to the value of property, the court
held that the municipality could do so through property rates, meaning that the
City derives its power from Section 229( 1 )(b ). This decision is authority for the
proposition that these cleansing levy - services described by the City are the
kind of services which cannot be charged to individuals as a tariff. The

Page 49 of 68
authority also recognises that the Systems Act does not oblige a municipality
to charge for services in accordance w ith a tariff. It simply entitles it to do so,
provided that a tariff policy has been adopted and by-laws promulgated in
terms of the act.
135. The documents annexed to the founding affidavit make it clear that the City
had adopted a new Tariff Policy on 29 May 2025, which was not yet
promulgated. Despite this, Schedule 5 was adopted and published as if based
on law. The City failed to explain whether it still intends to promulgate the new
Tariff Policy and the accompanying by-laws, or whether it has abandoned that
process. The evasive stance by the City deprived the Court of critical
information necessary to assess the legality of the cleansing levy.
136. In Lombardy City of Tshwane Metropolitan Municipality v Lombardy
Development (Pty) Ltd & others (724/2017) [2018] ZASCA 77 (31 May 2018)
at para [15] and Thaba Chweu Rural Forum supra the Supreme Court of
Appeal was similarly faced with omissions to produce documents that were
material to deciding whether the municipalities had followed due process in
determining rates, holding that in such cases there is obviously no evidence
of compliance. In this case, the City finds itself in a far worse position because
the production of the documents is not only relevant in respect of the process
followed, but because the City is powerless to promulgate tariffs w ithout the
required documents.
137. The City, having adopted the new Tariff Policy and, while being subject to the
applicant's attack on its legality in respect of the cleansing levy, the City had
a statutory obligation to implement it. Section 7 4( 1) of the Systems Act
provides that 'i!\ municipal council must adopt and implement a tariff policy on

Page 50 of 68
the levying of fees for municipal services provided by the mun icipality itself or
by way of service delivery agreements, and which complies with the provisions
of this Act, the Municipal Finance Management Act and any other applicable
legislation."
138. The deponent to the answering affidavits is silent on these matters amounts
to dereliction of the duties of public officials, who are constitutionally required
to act lawfully, transparently, and in good faith. This failure supports the
inference that the C ity is attempting to hide the unlawfulness of its conduct.
139. The City's belated reliance on the 2016 by-law is misconceived. In the first
answering affidavit In its first answer, the City sought to justify the cleansing
levy by relying on a 2016 by-law. This is a clear departure from its previous
position, conveyed through its attorneys and reflected in its own documents.
The reliance on the 2016 by-law is legally untenable. The cleansing levy
published in Schedule 5 is not based on that by-law but on the 2025 MTREF
and the new Tariff Policy adopted by the Council on 29 May 2025.
140. The new Tariff Policy, by the City's own formulation, defines a "Tariff schedule"
as referring to the tariff tables accompanying the annual budget tabled under
section 17(3) of the MFMA.34 The policy further provides that tariffs must be
consistent with this new policy. The City has not promulgated the by-laws
necessary to give effect to the new Tariff Policy, the tariffs in Schedule 5 stand
to be declared unlawful to the extent that they provide for the cleansing levy.
141. S chedule 5 is identical to the draft tariff schedule attached to the founding
affidavit. Annexure "RAA2 ", CaseLines 004-264 to 272. The comparison
between Schedule 5 and the new Tariff Policy reveals The City's alignment

Page 51 of 68
and the fact that both deviate from the 2016 by-law. This demonstrates that
Schedule 5 in its published fonn did not, and could not, derive its power from
the 2016 by-law.
142. The City's reliance on the 2016 by-law is also contradicted by its own
attorney's letter (Replying Affidavit, Caselines 005-6, paragraph 16) which
justifies the levy with reference to a different rationale. The 2016 by-law is not
given emphasis to by a tariff policy.
143. In its supplementary answering affidavit, the City attempts to illustrate that the
source of the cleansing levy is the 2016 Tariff Policy, Supplemented Answer,
052-9, paragraph 9, however it concedes: "We have tried to locate the Citv's
Tariff Policy of 2016 however. it proved to be a timeous exercise."
(Supplemented Answer, 052-9, paragraph 9).
144. In my view it is irrational and in fact misleading to submit that the Council relied
on a policy as the source of its power, if it had been unable to locate the policy
at the stage when the policy was not available to it when it adopted Schedule
5. The inescapable inference is that the 2016 policy was not considered at the
time and could never have been the source of the City's power.
145. In Wightman t/a JW Construction (Pty) Ltd v Headfour (Pty) Ltd and another
[2008] ZASCA 6; 2008 (3) the Supreme Court of Appeal, in respect of
ambiguities where a party must necessarily possess knowledge, held the
following: "A real, genuine and bona fide d;spute of fact can exist only where
the court is satisfied that the party who purports to raise the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be disputed.
. . . When the facts averred are such that the disputing party must necessarily

Page 52 of68
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead of doing
so, rests his case on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is satisfied."
146. The above is supported by section 39 of the 2016 by-law, which states that
tariffs must be determined in terms of a tariff policy compliant with section 7 4
of the Systems Act.43 The City did not have access to such a policy when it
adopted Schedule 5 and therefore, to the extent that it now relies on the 2016
by-law, it acted contrary to it. If the 2016 tariff policy had any force or, the City
should have had no difficulty to produce it, because it would have to form part
of the City's and other institutions' public records.
14 7. The question remains: why did the City, if it really intended to rely on the 2016
by-law and policy as the source of its power on 29 May, approve a new tariff
policy on the same day? Again, the inescapable inference must be that when
the shoe was pinching the City adopted a different stance and shifted to the
2018 policy and by-law which is similarly flawed. In the City's first answering
affidavit the City repeatedly relied on the 2016 by-law as a source of power.
The City contended: 'Ta]bsent a frontal attack against the Waste Management
By-Law (24 August 2016), the concept of cleansing levy remains unchallenged
and exists as a matter of both law and fact". Answering Affidavit, paragraph
46, Caselines 004-19.
148. After seeing its errors in applicant's the replying affidavit, the City steered
away from what it submitted was: "unchallenged ... matter of both law and fact"
to another source. The 2018 by-law referred to in the City's supplemented
answer is not a tariff bylaw at all. It is the Property Rates By-Laws giving effect

Page 53 of68
to the Rates Policy under the Rates Act. Answering Affidavit, paragraph 46,
Caselines 004-19.
149. This Act makes no provision for waste management or cleansing levies and
the City did not show a 2018 by-law in respect of waste management or
cleansing levies.
150. Furthermore, section 6 of the 2018 tariff policy provide as follows: 'T a]s far as
practically possible, consumers should pay in proportion to the amount of
services consumed ... [and that] ... [a]// households, with the exception of the
poor (indigent), should pay the full costs of services consumed ... [and that it
must include the] ... cost reasonably associated with rendering the service ... ".
151. Section 7.1 of the policy defines "trading services" as "measurable se,vices"
that can be "accurately apportioned to an individual consumer" and lists "waste
removal" as an example. On the version of both parties the cleansing levy is
not measurable and cannot be accurately apportioned. The City itself
describes it as an "unbillable se,vice.H Annexure "FA11", CaseLines 001-73,
para 12.1.4. On a simple reading of the 2018 policy, the policy does not
correspond with the newly published Schedule 5. Answering Affidavit,
Annexure "RAA3 ", Caselines 004-265.
152. In the supplemented reply, Caselines 052-5, para 22 to 26 the policy limits
the cleansing levy to residential properties without a waste account. In
contrast, the current Schedule 5 applies the levy to all properties, including
businesses.

Page 54of68
153. In Pharmaceutical Manufacturers Association of SA and Another: In re Ex
Parte President of the Republic of South Africa and Others 2000 (2) SA 674
(CC) at para [85], the Constitutional Court held: "It is a requirement of the rule
of law that the exercise of public power by the Executive and other
functionaries should not be arbitrary. Decisions must be rationally related to
the purpose for which the power was given, otherwise they are in effect
arbitrary and inconsistent with this requirement. It follows that to pass
const;tutional scrutiny the exercise of public power by the Executive and other
functionaries must, at least, comply with this requirement. If it does not, it falls
short of the standards demanded by our Constitution for such action."
154. The same court held further that: "The question whether a decision is rationally
related to the purpose for which the power was given calls for an objective
enquiry. Otherwise, a decision that, viewed objectively, is in fact irrational,
might pass muster simply because the person who took it mistakenly and in
good faith believed it to be rational. Such a conclusion would place form above
substance and undermine an important constitutional principle."
155. The City has attempted to defend the imposition of a cleansing levy for an
ulterior motive of funding a historical, underfunded budget (founding affidavit,
001-28, para 97 (read with 001-20, para 64 to 67) which is already paid for by
the public through property rates and other levies and tariffs. This is my view.
The City's inability to provide waste management services, has caused the
public to incur additional expenses and effort to dispose of waste in an
alternative and lawful manner.
156. The disingenuous submission by the City that there is doubt about whether
applicant's contentions that private waste services must pay the City for the

Page 55of 68
use of its waste disposal sites and challenging the applicant to provide
evidence hereof demonstrates that the City misled the Court. The applicant
provided the relevant evidence.
157. In Wightman supra, the court expressed itself regarding disputes and it is
equally relevant here. In the City's answering affidavit, the deponent for the
City sought to undermine the rationale for the cleansing levy the City provided
before the application was launched by introducing a completely new
rationale. This created further ambiguity with regards to the purpose for which
the power was given vis a vis versus the purpose the City sought to achieve.
This demonstrates that the City's version cannot be accepted and that its
rationale is not objectively sustainable.
158. The City sought to introduce a new rationale which is equally irrational. In line
with its reliance on the tariff policies and by-laws, the City's new rationale for
the levy shifted. In its supplemented papers and heads the City describes the
levy as a charge on those who "choose" not to use the City's waste
management services and naming these members of the public as "free
loaders." This submission is at odds with the City's earlier rationale, as stated
in the attorney's letter, which described city cleansing as "an essential
unbillable se,vice", and that it is related to "public cleansing, including street
sweeping, illegal dumping enforcement, landfill rehabilitation, and the
operation of municipal infrastructure not directly billable to refuse collection
clients."
159. I do not understand how approximately 250 000 affected members of the
public are able to choose between using or refusing " ... public cleansing,
including street sweeping, illegal dumping enforcement, landfill rehabilitation

Page 56 of 68
and the operation of municipal infrastructure. The City has not explained this
conundrum or the clear contradiction between the City's answer through its
attorneys and the differing rationale. Nor does the attorney the City's
explanation through its acting on the City's instructions.
160. The City has failed to provide evidence that members of the public refuse
waste removal services that are available and capable of being rendered. This
was highlighted by the applicant in its replying affidavit, (replying affidavit,
paragraph 26, Cselines 005-8). Despite the City having had the opportunity
to supplement its answer in this regard, it did not do so.
161. The applicant lastly argued that, with reference to State Information
Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd [2017] ZACC 40 (CC);
2018 (2) SA 23 (CC) para 53, that " ... under s 172(1 )(b) of the Constitution, a
court deciding a constitutional matter has a wide remedial power. It is
empowered to make 'any order that· is just and equitable'. So wide is that
power that it is bound only by considerations of justice and equity."
162. The applicant pointed out that this is not the first time the City has been in this
position. In Lombardy, supra, Supreme Court of Appeal, relying on the
Constitutional Court's judgment in Bengwenyama Minerals (Pty) Ltd and
others v Genorah Resources and others (Pty) Ltd and others [201 0] ZACC 26;
2011 (4) SA 113 (CC) para 84-85 held in respect of the City and a litigant in
the City's position that: " ... it is important to emphasise that a litigant seeking
a just and equitable remedy limiting the impact of the mandatory remedy of a
declaration of invalidity must make out such a case. In particular, facts should
be adduced as to the deleterious consequences for the public interest of
setting aside a decision that has been declared invalid. This is to enable the

Page 57 of68
Court to weigh up those consequences against the imperative to vindicate the
principle of legality. No such case has been made out by the City in its papers."
163. In Thaba Chweu Rural Forum, supra, the Supreme Court of Appeal held and
described the weighing of consequences in fashioning a just and equitable
remedy as follows: "In fashioning appropriate just and equitable relief, the
approach in Lombardy finds application whereby this Court has to weigh the
consequences ... against the imperative to vindicate the principle of legality.
Should matters be left as they are, the respondents stand to unjustifiably claim
the unlawfully imposed excessive portion of the municipal rates, levied on the
agricultural properties of the ratepayers. The scale of justice will be tilted."
164. In Lombardy, supra, the Supreme Court of Appeal held the following: "It cannot
plausibly be so that the City proceeded to arrange its affairs in the confident
expectation that ratepayers would not challenge its conduct. Indeed, the City
does not even attempt to suggest what other remedy might be preferable from
the standpoint of justice and equity other than that the Court should decline to
set aside the 2012 valuation roll."
165. On the question of urgency, the applicant argued that the triggering event for
this application was the City informing the applicant on 30 May that the
resolution including the cleansing levy had been passed by the Council on 29
May 2025. Until the City filed its answering affidavit, its uncontested position
on implementation of the cleansing levy was that it would be implemented on
1 July. This required that the application to be brought before then. If the case
were to be heard in the normal course, it would only be heard after 30 June
2026, after the end of the financial year in which the cleansing levy would have
affected the more than 250,000 affected members of the public. The City's

Page 58 of 68
primary attack on the urgency and the applicant's alleged delay is the City's
mistaken reliance on the old by-law. The applicant has never sought to make
out a case based on the old by-law and it is irrelevant for purpose of
determining urgency. I do not believe that the attack on urgency is justified,
and I accordingly find that the applicant was justified to launch the application
on an urgent basis.
166. On the question of the applicant's standing to have brought this application,
the City's argument is similarly misguided. The City anchored its argument on
this issue on the applicant's alleged failure to identity a section 38 (of the
Constitution) right enabling the applicant to show its locus standi. The
applicant argued that specific regard must be had to the public interest as it
appears from the City's papers, the Constitutional issues involved and the
principle of legality.
167. The City's denial of the applicant's standing emanates from a misconceived,
narrow view of the Section 38 of the Constitution. The City It is also ill informed
about the way the public's basic rights are affected by its actions. Its approach
creates doubts as to its motivation for raising the objection against a civil rights
organisation calling for judicial oversight. In Ferreira v Levin NO 1996 (1) SA
984 (CC) at para 165 Ferreira, Chaskalson P held that a broad approach had
to be adopted to standing in constitutional cases. Since, there has been
increasing judicial support for the proposition that Section 38 of the
Constitution is not merely confined to the Bill of R ights, as the City contends,
but to all constitutional matters.
168. In Kruger v President Of Republic Of South Africa And Others 2009 (1) SA
417 (CC) at para 23, Skweyiya J pointed out that constitutional litigation is

Page 59of68
particularly important in this country, " ... where we have a large number of
people who have had scant educational opportunities and who may not be
aware of their rights", and that a broad approach to standing would "facilitate
the protection of the Constitution."
169. In considering the City's conduct, I have considered the case of MEC for
Health, Eastern Cape v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC)
at para where Cameron J said: " ... there is a higher duty on the state to respect
the law, to fulfil procedural requirements and to tread respectfully when
dealing with rights. Government is not an indigent or bewildered litigant, adrift
on a sea of litigious uncertainty, to whom the courts must extend a procedure
circumventing lifeline. It is the Constitution's primary agent. It must do right,
and it must do it properly."
170. Given the City's conduct and aim to obfuscate the real issues, compounded
by its failure to comply with its own legislation, and, further compounded by
uploading several hundred of irrelevant pages and documents, I must express
my disapproval by considering a punitive cost order. Any other cost order
would not be justified under these circumstances.
171. In Electoral Commission v Mhlope and Others 2016 (5) SA 1 (CC) at para 130
the Constitutional Court held: "The rule of law is one of the cornerstones of
our constitutional democracy. And it is crucial for the survival and vibrancy of
our democracy that the observance of the rule of law be given the prominence
it deserves in our constitutional design. To this end, no court should be loath
to declare conduct, that either has no legal basis or constitutes a disregard for
the law, inconsistent with legality and the foundational value of the rule of law.
Courts are obliged to do so. To shy away from this duty would require a sound

Page 60 of68
jurisprudential basis. Since none exists in this matter, it is only proper that we
do the inevitable."
172. Before issuing the order which I intend to make , I need to record a few aspects
which I found warranting comment. Both sides employed senior counsel, the
respondent's having employed the services of three counsel. I find that the
employment of senior counsel was warranted, subject to what follows. On the
first day of hearing, after lunch I was approached by counsel for the parties in
the corridor where the respondent's senior counsel advised me that he would
not be able to comp lete his submissions on that day, namely 24 July 2025.
The application, in my view had been set down for two days, and, when I
enquired about 25 July 2025, senior counsel for the respondents advised me
that he would be in Lesotho the next day and asked whether the application
could stand down to the following week.
173. I declined the request, firstly because my acting appointment would end on 25
July 2025 and, secondly, perhaps more importantly, counsel in opposed
applications, let alone special motions, should follow the well-known practice
of being available for the whole week in which their case will be heard. I was
then asked whether the case could continue virtually on 25 July 2025. I
acceded to the request, the applicant's senior counsel not having difficulty with
the request. On the morning of 25 July 2025 I was informed by Mr Manala, the
respondents' one junior counsel that the senior counsel had contacted him
early that morning to inform him that he had no internet connectivity and could
not appear. That was the last I saw or heard from the senior counsel, and no
explanation has been proffered to me by the senior counsel for not having
foreseen the possibility of connectivity issues.

Page 61 of 68
17 4. I must also m ake of my disapproval at the City having employed three counsel
and who put up a completely unmeritorious defence to the applicant's case.
Ordinarily I would have debated this question with counsel but given the
absence of the respondents' senior counsel and insufficient time, I find it
appropriate to send out a message to legal practitioners on prosecuting or
defending cases unmeritorious. The aim is not to discourage legal
practitioners from taking on cases where the line between meritorious and
unmeritorious case is thin, for fear of being ordered to pay the costs of the
litigation de boniis propriis but rather warn legal practitioner of the obligations
to the court and limited resources, let alone their client's funds which may be
depleted for no good reason.
175. The Constitutional Court ("CC") in Ex Parte Minister of Home Affairs v Lawyers
for Human Rights [2023] ZACC 34; 2024 (1) BCLR 70 (CC); 2024 (2) SA 58
(CC) (30 October 2023); See also: South African Social Security Agency v
Minister of Social Development (Corruption Watch (NPC) RF Amicus Curiae)
[2018] ZACC 26; 2018 JDR 1451 (CC); 2018 (10) BCLR 1291 (CC) (SASSA) ;
Public Protectorv South African Reserve Bank [2019] ZACC 29; 2019 (6) SA
253 (CC); 2019 (9) BCLR 1113 (CC), expressed its displeasure towards the
legal practitioners pursuing litigation in the manner that the court found to be
in contrast with their ethical duties and said the following:
"[107) In Canada, the Court of Appea l for B ritish Columbia held in Lougheed
that in an adversarial system the usual approach of judicial non­
intervention presupposes that counsel will do their duty, not only to
their client but to the court in particular. That duty, said the Court,
entails: "to do right by their clients and right by the court .... In this
context. 'right' includes taking all legal points deserving of

Page 62 of68
consideration and not taking points not so deserving. The reason is
simple. Counsel must assist the court in doing justice according to
[108] My Colleague states in his article that the rules of professional conduct
of the law societies of Canada contain provisions supporting a
conclusion that it is improper to advance a hopeless case.
[109) In his article, Rogers J concludes, amongst others, in respect of the
ethical duties of counsel (which, self-evidently are of equal application
to attorneys; the emphasis is my own):
(a} Pleadings and affidavits must be scrupulously honest. Nothing
should be asserted or denied without reasonable factual
foundation.
-, (b) It is improper for counsel to act for a client in respect of a claim
or defence which is hooeless in law or on the facts.
(c} A necessary correlative is that counsel must properly research
the law and insist on adequate factual instructions.
(d} In principle counsel may properly conclude that a case is
hopeless on the facts though in general counsel cannot be
expected to be the arbiter of credibility.
( e) There is an ethical obligation to ensure that only genuine and
arguable issues are ventilated and that this is achieved without
delay.
(f} Misconduct of this kind must be assessed subjectively - the
question is whether counsel genuinely believes that the case is

Page 63 of68
not hopeless and is thus properly arguable ... " (own underlining
for emphasis).
176. Relying on an earlier decision on the issue of costs being awarded against the
legal practitioners, the Full Court of Gauteng Local Division in a judgment
dated 29 July 2024, penned by Mlambo JP, said the following:
"[25] In Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria
Ltd, this Division elaborated on the principles relating to an order of costs de
bonis propriis as follows:
"Costs are ordinarily ordered on the party and party scale. Only in exceptional
circumstances and pursuant to a discretion judicially exercised is a party
ordered to pay costs on a punitive scale. Even more exceptional is an order
that a legal representative should be ordered to pay the costs out of [their] own
pocket. It is quite. correct, as was submitted, that the obvious policy
consideration underlying the court's reluctance to order costs against legal
representatives personally, is that attorneys and counsel are expected to
pursue their client's rights and interests fearlessly and vigorously without
undue regard for their personal convenience. In that context they ought not to
be intimidated either by their opponent or even, I may add, by the court. Legal
practitioners must present their case fearlessly and vigorously, but always
within the context of set ethical rules that pertain to them, and which are aimed
at preventing practitioners from becoming parties to a df:]ception of the court.
It is in this context that society and the courts and the professions demand
absolute personal integrity and scrupulous honesty of each practitioner."
(Citation omitted and emphasis added.)

Page64 of 68
[26) The Court went on to explain the circumstances in which an order of
costs de bonis propriis can be granted against a legal representative as
follows:
"It is true that legal representatives sometimes make errors of law, omit to
comply fully with the rules of the court or err in other ways related to the
conduct of the proceedings. This is an everyday occurrence. This does not,
however, per se ordinarily result in the court showing its displeasure by
ordering the particular legal practitioner to pay the costs from his own pocket.
Such an order is reserved for conduct which substantially and materially
deviates from the standard expected of the legal practitioner, such that their
clients, the actual parties to the litigation, cannot be expected to bear the
costs, or because the court feels compelled to mark its profound displeasure
at the conduct of an attorney in any particular context. Examples are,
dishonesty, obstruction of the interest of justice, irresponsible and grossly
negligent conduct, litigating in a reckless manner, misleading the court, and
gross incompetent and a lack of care." ...
"[28] ... In Ex Parte Minister of Home Affairs; In re Lawyers for Human Rights
v Minister of Home Affairs and Others, supra, the Constitutional Court
emphasised that-
"[l]egal practitioners are an integral part of our justice system. They must
uphold the rule of law, act diligently and professionally. They owe a high ethical
and moral duty to the public in general, but in particular to their clients and to
the courts."

Page 65of 68
177. Under the circumstances, I make the following order:
1. The applicant is authorised to have dispensed with the forms and
services provided for in the Rules and hearing of this application as a
matter of urgency.
2. The imposition of cleansing levy by the First to Fourth Respondent
(the City) is hereby declared unlawful, invalid and is of no force and
effect and is accordingly set aside.
3. The declaration of unlawfulness and setting aside of the cleansing
levy, in paragraph 2 above includes relevant portions applicable to the
cleansing levy in the following documents:
a. 2024/2025 funding plan to improve the upfronted budget
position of the City, annexed as annexure FA? to the founding
affidavit).
b. The 2024/2025 medium term revenue and expenditure
framework (annexed as annexure A to annexure FA10 to the
founding affidavit).
c. Council resolution dated 29 May 2025 (annexed as FA12 to the
founding affidavit).
d. Tariff policy with effect from 1 July (annexed as FA13 to the
founding affidavit).
e. The City of Tshwane Metropolitan Municipality Waste
Management By-law (annexed as FA16 to the founding
affidavit).
f. City of Tshwane Metropolitan Municipality Refuse Service
Schedule with tariffs for refuse removal services ( annexed as

Page 66 of 68
FA 16 to the founding affidavit).
4. In the event of the by-law in paragraph 3(f) above not having been
published as at date of this order, the City is prohibited from having it
published and is furthermore compelled to forthwith take all
reasonable measures to ensure that such by-law will not be published.
To the extent that publication has taken place, the City is ordered to
take immediate steps to retract the publication by way of a further
publication in which the previous publication City of Tshwane
Metropolitan Municipality Waste Management By-law is forthwith
withdrawn.
5. In the event that the City has activated its billing systems to render
accounts to residents and businesses with a cleansing levy:
a. The City is ordered to forthwith take all reasonable measures
and steps to ensure that residents and businesses are not
billed for the cleansing levy; and
b. To the extent that the City has already proceeded with the
billing systems and has rendered accounts to residents and
businesses with the cleansing levy, the City is order to forthwith
take all such reasonable steps and measures to ensure that the
accounts of the affected residents and businesses who have
been billed for a cleansing levy, are credited with an amount
equal to the cleansing leavy during the following billing cycle.

Page 67 of 68
6. The City is ordered to pay the applicant's costs on the scale as
between attorney and client, including senior counsel costs .
. T. AWAKOUMIDES, AJ
Acting Judge of the High Court

Representation for the parties:
For the Applicant: Counsel for the Applicant
E Botha SC
etienne@ lawcircle.co.za
083 285 7866
Instructed by: Hurter and Spies
marjorie@ hurterspies.co.za: carl@ hurterspies.co.za
012 941 9239
For Respondents: Counsel for First to Fourth Respondents
M Dewrance SC
m vron@ dewrance.co.za
Instructed by:
082 771 3240
M Manala
manalae@law .co.za
073101 7330
Y Pattni
Yashwi.Pattni@ thulamelachambers.co.za
0813643581
Mahumani Incorporated
nviko@ mahumaniinc.co.za
012 330 0025
Page 68 of 68