THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable/Not Reportable
Case No: 832/2024
In the matter between:
MALAKITE BODY CORPORATE FIRST APPELLANT
GREENSTONE CREST BODY CORPORATE SECOND APPELLANT
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY FIRST RESPONDENT
CITY POWER, JOHANNESBURG SOC LIMITED SECOND RESPONDENT
Neutral Citation: Malakite Body Corpo rate and Another v City of
Johannesburg Metropolitan Municipality and Another
(832/2024) [2025] ZASCA 192 (15 December 2025)
Coram: DAMBUZA, SMITH and COPPIN JJA and CHILI and
NUKU AJJA
Heard: 19 November 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and r eleased to SAFLII. The date and time for hand -down of the
judgment is deemed to be 11h00 on 15 December 2025.
Summary: Municipal Law – Standardisation of Electricity By -Law 1999 –
appropriate electricity tariff classification – meaning of and application of
2
s 5(10) of the S tandardisation of Electricity By-Law 1999 – communal loads
for both domestic and non -domestic users that cannot be s eparated to be
charged at appropriate non-domestic rate determined by the municipality from
time to time.
3
______________________________________________________________
ORDER
______________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Windell,
Maier-Frawley and Crutchfield JJ sitting as the full court on appeal):
The appeal is dismissed with costs , including the costs of two counsel, where
so employed.
______________________________________________________________
JUDGMENT
______________________________________________________________
Coppin JA ( Dambuza and Smith JJA and Chilli and Nuku AJJA
concurring):
[1] This is an appeal against the order of the full court of the Gauteng
Division of the High Court , Johannesburg (the full court) in terms of which an
appeal to it by the appellants, the Malakite Body Corporate (Malakite), and the
Greenstone Crest Body Corporate (Greenstone), against an order of the court
of first instance (the high court) was dismissed with costs. The high court had
dismissed an application brought by Malakite and Greenstone, in essence, to
direct the respondents, City of Johan nesburg Metropolitan Municipality ( the
City) and City Power Johannesburg SOC Ltd (City Power) (collectively
referred to as ‘the municipality’) , to cease charging their residents a business
tariff for their electricity consumption; to charge them a domestic tariff instead;
and to rectify the ir records accordingly. The high court found that the rate
charged by the municipality was justified. Special leave to appeal to this Court
was granted on petition.
[2] The main issue for determination in this appeal is whether the full court
erred in confirming the findings and order of the high court . This entails
determining whether the charging of a business tariff for mixed (domestic and
4
non-domestic) electricity consumption is justified in terms of the standardised
electricity by-laws1 (by-laws) and tariff policies2 of the municipality.
[3] Both appellants are body corporates of residential estates, established
in terms of s 36(1) of the Sectional Titles Act 95 of 1986. Malakite was
established on 24 October 20 16, with its principal place of busine ss at
Greenstone Hill, Extension 21 , Modderfontein, Gauteng. Greenstone was
established on 7 May 2015, with its principal place of business at Greenstone
Hill, Extension 33, Modderfontein, Gauteng. Malakite has 290 residential units
and Greenstone has 620 residential units. Both estates are zoned ‘Residential
3’, which allows for the establishment of recreati on clubs and taverns in their
precincts. Within these two estates , there are 2 units that serve as Lifestyle
Centres. Both, respectively, have a restaurant and a gym.
[4] After the appellants took ownership of the ir (respective) estate
properties from their common developer , Balwin Properties, each concluded
an agreement with the municipality for the provision of muni cipal services,
including the supp ly of electricity to their property . A dispute arose between
the appellants and the municipality in respect of the electricity tariff charged
by the municipality. They were being charged a commercial or business tariff.
The reason given was that since ther e were restaurants on the respective
properties, which were not separately metered from the resident ial units, the
appellants were liable to pay commercial or business rates for thei r mixed
domestic and non -domestic use . The solution proposed by the munici pality
was for the respective estates to install split meters, which would enable the
electricity supply to and consumption of the dwellings (domestic use) to be
metered separately from that of the restaurant (non-domestic use). This would
then allow for t he occupiers of the dwellings to be charged a residential rate
then allow for t he occupiers of the dwellings to be charged a residential rate
for their electrical consumption , while the restaurant would be charged a
commercial, or business tariff.
1 Standardisation of Electricity By-law, Gauteng GN 1610, Gauteng Provincial Gazette 16,
17 March 1999.
2 Tariff Determination Policy, City of Johannesburg.
5
[5] On 15 March 2019 , Malakite, submitted an application to the
municipality for the i nstallation of a split meter. Greenstone, made a similar
application on 30 October 2018. The disputes regarding the charges for
electricity by the municipality could not be resolved, and the installation of the
split meters was abandoned or pended by both the appellants, apparently due
to the high cost of the installation.
[6] The electricity woes of the appellants were exacerbated b ecause of
actual disconnect ions of the electricity supply by the municipality due to
alleged outstanding payments, and because of continuous threats of
disconnections. On 4 July 2019, the attorney for the appellants advised the
municipality by letter that the body corporates ha d elected to proceed with
their respective applications for the installation of split meters. In the letter, the
appellants also demanded that an undertaking be given by the municipality by
a s et date and time , that municipal services would not be disconnected
pending the finalisation of the ir respective applications for i nstallation of split
meters. When the undertaking was not forthcoming, the appellants brought an
application against the municipality in the high court for interdictory and other
relief. Initially, they sought to interdict the municipality from disconnecting their
municipal services pending the outcome of their applications for the
installation of split meters.
[7] Subsequently, the appellants amended their notice of motion and filed
a supplementary affidavit in which they contended that they did not have to
apply for split meters, and tha t they, as residential users, had to be billed for
the estates’ electricity consumption at a d omestic tariff. They intimated that
they intended withdrawing their (respective) applications for the installation of
split meters because of the high costs, and ‘because the split meter systems
were not necessary ’. T hey also tried to capitali se on internal emails of an
were not necessary ’. T hey also tried to capitali se on internal emails of an
official of the City, dated 17 May 2019 and 20 May 2019, claiming that the
views expressed by the official in the emails were binding on the munici pality.
In the first email, the official states the following:
‘Based on the information at hand the valuation department is satisfied that the value
of the a ncillary uses [is] included in that of the units and should not be valued
6
separately and that the category of the “mother stand” should remain at “Sectional
Title Residential”.’
In the second email dated 20 May 2019 , the official stated, among other
things, the following:
‘The “lifestyle” facilities provided by Balwin Properties within their developments have
been valued as part of the schemes and therefore seen as residential for the purpose
of valuation. Electricity billing in this development needs to be corrected to residential
in order to achieve the alignment.’
[8] The application was opposed by the municipality, which filed answering
papers. The appellants filed a reply ing affidavit. In their amended notice of
motion the appellants sought the followi ng orders, in addition to condonation
and alternative relief:
(a) that the municipality be directed ‘to align and re ctify the ir records and
billing to reflect’ their estates as ‘residential’ for the purpose of valuation
and billing of electricity and municipality services.
(b) that the municipality be directed to comply wit h that order within 30 days
of the order being made.
(c) interdicting and restraining the municipality from disconnect ing the
supply of municipal services to them pending compliance with that order,
and
(d) that the municipality b e ordered to pay the ir costs o n the scale as
between attorney and client.
[9] The high court granted the requested condonation . However, it found,
inter alia, that the appellants did not discharge their onus of pro ving that the
lifestyle centres on their respective properties fell within the definition of
‘domestic use’, and that they were not being used for ‘a business purpose ’.
Regarding the zoning of their pro perties as ‘residential’, the high court
rejected the appellants’ argument that they should be billed at a domestic or
residential tariff because of their zoning as ‘Residential 3 ’ and because the
lifestyle centres usage is ancillary to such zoning. The high court held that
lifestyle centres usage is ancillary to such zoning. The high court held that
there was nothing in the by -laws of the municipality’s tariff policy to suggest
that any determination made i n respect of the zoning of the pro perty had any
7
bearing on the definitions of ‘domestic tariff’ and ‘business tariff’ in the tariff
policy.
[10] The high court found that the City official’s explanation of the email s
was not gainsaid. The official stated that he was merely making a sugges tion
to his colleagues and did not make or convey a decision. In any event, so the
high court found, he did not have the authority to make the kind of binding
decision contended for by the appellants. The high court conseq uently
dismissed the appellants’ application, with costs and granted the appellants
leave to appeal to the full court.
[11] The full court dismissed that appeal with costs, including the costs of
two counsel where so employed . In a well -reasoned judgment, the full court
refused an application by the appellants to adduce furthe r evidence, and
having considered the relevant laws (including by-laws) and the municipality’s
tariff policy , it concluded as follows: (a) t he appellants’ argument, that t he
lifestyle ce ntres are of second ary import ance and that the municipality’s
description of the applicant’s electricity consumption as mixed domestic and
non-domestic was therefore incorrect, was not persuasive; (b) the tariff policy
and by-laws in terms of which they were being charged were approved by the
municipality’s c ouncil and have not been challenged by the appellants; (c)
there can be no dispute that the restaurant is a business – ‘[i]t sells food to the
residents and their guest s at a profit ’; the restaurant is commercial in nature
and not domestic, and it is not merely ‘ancillary’ to the residential units; (d) the
lifestyle centres are not intended to be used for residential habitation , but for
commercial purposes ; (e) the electric ity usage of a bu siness premise s is
different to th at of a residential dwelling, hence the application of a
commercial tariff to the former; (f) the by-laws and municipal policy are clear –
communal loads for domestic and non-domestic use which cannot be
communal loads for domestic and non-domestic use which cannot be
separated must be metered at the appropriate non -domestic tariff, as
determined by the municipality’s council from time to time ; (g) a residential
tariff is not applicable to properties zoned as residential , but used for
business, or for mix ed-use reseller consumers, unless a split meter is
8
installed; and (h) the municipality is therefore justified in charging the body
corporates a business or commercial tariff for their electricity consumption.
[12] On petition to this Court, the appellants were granted special leave to
appeal the full court’s order. They argued in this Court that the by -laws
(s 5(10)) and the tariff policy of the municipality , properly constr ued, did not
mean that the municipality was justified in charging them a
business/commercial tariff for their consumption of electricity. Their argument,
stripped of its non -essential detail was that their ‘entire estates were clearly
predominately [a] domestic load and the small lifestyle centre within each
estate is ancillary to the predominate residential use of the properties as a
whole . . . the term “mixed domestic and non-domestic load” (in s 5(10) of the
by-laws and the municipality’s tariff policy is not applicable to them or their
estates) and is reserved for t hose developments which incorporate residential
and business to t he exte nt that it is not possible to determine whethe r it is
predominately “domestic” or “non-domestic”’.
[13] The issue to be determined basically involves the interpretation of the
municipality’s by-laws and tariff policy. The general principles of interpretation
referred to in Endumeni3 and Capitec4 and summarised by the Constitutional
Court in, amongst other matters, Minister of Police and Others v Fidelity
Security Services (Pty) Ltd,5 are now trite. It is also well established that the
wording of sta tutory or (legal) pr ovision is vital in the process of its
interpretation, because ‘interpretation is a process of attributing meaning to
the words used ’ in their proper context. The words of a statutory or legal
provision are the starting po int of any interpretation, be it purposive, or
otherwise. It is t herefore self -evident that t he interpretation of any provisi on
must illustrate a n engagement with the actual wording of that provision. 6 It is
must illustrate a n engagement with the actual wording of that provision. 6 It is
3 Natal Joint Municip ality Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2
All SA 262 (SCA); 2012 (4) SA 593 (SCA).
4 Capitec Bank Holding Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and
Others [2021] ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA).
5 Minister of Police and Others v Fidelity Security Services (Pty) Ltd [2022] ZACC 16; 2022 (2)
SACR 519 (CC); 2023 (3) BCLR 270 (CC), para 34.
6 SATAWU and Others v Moloto and Another NNO [2012] ZACC 19; 2012 (6) SA 249 (CC);
2012 (11) BCLR 1177 (CC).
9
also trite that when interpreting a provision in a by-law, courts are required to
ascertain the purpose of the pr ovision and possibly what mischief it was
aimed at preventing.7
[14] In terms of s 160(2) of the Constitution,8 it is the responsibility of
municipal councils to impose rates and tariffs , including electr icity tariffs.
Section 11(1) of the Local Governmen t Municipality Systems Act 32 of 200 0,
provides that ‘the executive and legislative authority of a municipality is
exercised by the council of the municipality, and the council takes all the
decisions of t he mu nicipality subj ect to s 59 ’. Section 11(3) pro vides that a
municipality exercises its legislative or executive authority by, amongst other
things, ‘imposing and recovering rates, taxes, levies, duties, service fees and
surcharges on fees , including se tting and implementi ng tariff, rates and tax
and debt collection policies’, and by ‘passing by-laws and taking decisions. . .’.
[15] The standardised electricity b y-laws apply to the entire metropolitan
area of the municipality. The appellan ts, respectively, entered into an
agreement with the municipality for the supply of electricity. In terms of s 5(10)
of the by -laws, which is also applicable to the supply of electricity by the
municipality to the appellants (and their residents):
‘Communal loads for bo th do mestic and non-domestic uses which cannot be
separated shall be metered at the appropriate non -domestic charge as determined
by the Council from time to time.’
[16] There are several ca tegories of tariff structures in the municipality’s
tariff policy, two of which are ‘domestic tariffs’ and ‘business tariffs’. In clause
6 of the municipality’s tariffs policy, a ‘domestic tariff’ is defined as follows:
‘Domestic tariff : This tariff is ap plicable to private houses, dwelling units, flats,
boarding house s, ho stels, residenc es or homes run by chari table institutions,
boarding house s, ho stels, residenc es or homes run by chari table institutions,
premises used for public worship including halls or other buildings used or religious
purposes, prisons and caravan parks. There are, however, certain rules applicable,
which may change the status of these consumers.’
7 Pottie v Kotze 1954 (3) SA 719 (A) at 726H-727A.
8 Constitution of the Republic of South Africa, 1996.
10
[17] The policy defines ’business tariff’ as follows:
‘Business Tariff: This tariff is applicable to supplies not exceeding capacity of
100kVA. Applicable for busin ess purposes, industrial purposes, nursing homes,
clinics, hospit als, hotels, recreat ional halls and clubs, e ducational institutions
(including schools and registered creches), sporting facilities , bed and breakfast
houses, mixed domestic and non -domestic loads, welfare organisations of a
commercial nature and premises used for public worship and religious purposes.’
[18] In their argument before this Court the appellants did not take issue
with the legality or validity of the l egislative framework, including the by -laws
and the policy – but disputed that their consumption (ie by their residents and
the lifestyle centres, or restaurant s on their premises) constituted ‘mixed
domestic and non -domestic loads’ as contemplated in s 5(10) of the by -laws
and in clause 6 of the municipality’s policy. They contend t hat their us e
remained residential – and therefore a ‘dome stic load’ since ‘the lifestyle
centres are clearly ancillary to the residential nature of the estates’.
[19] According to their argument, the lifestyle centres are not an essential or
necessary aspect of their respective residential estates – which are primarily
for housing. They contend that the lifestyle centres cannot function without the
residential estate; the restaurant is only accessed by residents and is run as a
business by a third-party operator. According to the appellants, the solution to
their conundrum was to be found in a proper construction of the phrase ‘mixed
domestic and non -domestic load ’. They submit that in their case , there ar e
essentially two ‘types of use s of electrical load – domestic an d bus iness’.
Theirs is not the classic type of ‘mixed use’, such as that of the development
that this Court dealt with in Bedford Square Properties (Pty) Ltd v ERF 179
that this Court dealt with in Bedford Square Properties (Pty) Ltd v ERF 179
Bedfordview (Pty ) Ltd .9 They argue that the development the re was
‘archetypal “mixed use”’ since it included shops, offices and residences.
9 Bedford Square Properties (Pt y) Ltd v ERF 179 Bedfordview (Pty) Ltd [2011] ZASCA 37 ;
2011 (5) SA 306 (SCA).
11
[20] According to the appellants, therefore, before concluding that a
development’s use was ‘mixed use’ and its electricity load (s) was ‘mixed
domestic and non-domestic’ it had to be determined what ‘the predominant or
primary purpose of the devel opment and the lifestyle centre w as’. If the
lifestyle centre w as merely ancillary to what was , essentially, zoned as
‘Residential 3 ’ for private h ousing, the combined load was not a ‘mixed
domestic and non -domestic load’. The appellants thus effectively argue that
the words ‘a mixed do mestic and non -domestic load ’ would only be of
application where the ‘mixing’ was significant. In other words , where the
development cons isted of clearl y identifiable significant business and
residential components. To buttress their argument, the y give additional,
albeit hypothetical, examples.
[21] They argue that in their ca se, the buildings on their properties are
primarily residential and for use as dwelling units. The y co ntend that the
restaurant and gym , forming the lifestyle centre , are clearly anc illary, being
purely for recreational purposes and for the benefit of the owners of the
residential units on the estates, who have a choice to utilise those centres.
[22] The hypothetical examples cited by the appellants of the alleged
unjustified impact the full court’s judgment would have , were the following: All
residential units in a large estate with ma ny hundreds of residential units, and
which is almost exclusively residential (except for the exclusive residential-use
restaurant) must n ow be charged business tariffs at great cost to the
residents. Second, a caravan park , which is otherwise to be charge d a
domestic tariff, will be charg ed a business tariff if it has a small kio sk on its
premises that sells goods to inhabitants of the park – because of the mixed
domestic and non -domestic loads. Third, a church, which is otherwise to b e
charged a domestic rate for co nsumption of electricity, would have to be
charged a domestic rate for co nsumption of electricity, would have to be
charged a business rat e if it sells sandwiches to its congregants from a kiosk
on its premises, because of the mixed load.
[23] The appellants’ contention that the solution to their electricity woes li es
in the i nterpretation of the policy and by -laws, is not a solution at all . First,
12
s 5(10) of th e by-laws and the accompanying policy are clear and
unambiguous. If there is a mixed domestic and non-domestic load that cannot
be separately metered , the municipality must charge a business t ariff for the
load. The purpose is to enab le the municipality to recover all the costs
attendant on its supply of electricity. If it is merely going to charge a domestic
tariff in such instances, it might well under -recover its costs . The solution is
separate or split metering.
[24] For the appel lants t o contend, effectively, that the meaning of ‘mixed
domestic and non-domestic use’ is depend ent on the degree of , respectively,
domestic and non-domestic use , is untenable an d will only introduce great
uncertainty. The threshold wou ld not only be dif ficult to set , but would,
inevitably, be arbitrary . A proper interpretation of the said section and the
accompanying policy must not only be purposive but also eschew uncertainty
and arbitrariness.
[25] In any eve nt, insofar as the appellants are contending for words to be
read into the by-law or policy, they have misconceived the nature and purpose
of ‘reading-in’. It is not a mode of interpretation, but in constitutional cases, it
is a remedy, the appropriateness of which a court, having found constitutional
invalidity, may have to decide on. Even as a remedy , it is not readily
employed because, it entails ‘reading-in’ words into an impugned legislative
provision in order to rende r it constitutionally compliant . This essentially
involves law-making, which is a power that essentially belongs to the
legislature.
[26] The appellants have not attacked the validity of the said by -laws or
accompanying tariff polic y of the municipality . Thus, one can hardly begin to
consider apply ing ‘reading-in’ as a remedy. Ultimately, it appear s as if their
main complaint is the fact that those provisions have been applied against
them. The examples they cite are hypothetical. The appellants neither cl aim
them. The examples they cite are hypothetical. The appellants neither cl aim
nor att empt to establish a cas e of unfai r discrimination. Thus, their
comparative effort, in the context of their case , is presumptive and serves no
practical purpose.
13
[27] The full court cannot be faul ted in its reasoning and conclusion. That
includes its refu sal to al low the body co rporates to file a further affidavit
placing evidence before the court regarding the business nature of the
restaurant and gym on their properties. That evidence does not meet the legal
requisites for the admission of new evidence o n app eal and would, in a ny
event, not have made a difference to t he outcome. It follows that the appeal
must fail. No reason has been proffered why the costs should not follow the
outcome.
[28] In the result, the following order is issued:
The appeal is dismissed with costs, including the costs of two counsel , where
so employed.
______________________
P COPPIN
JUDGE OF APPEAL
14
Appearances:
For the Appellants: G Kairinos SC (with B D Stevens)
Instructed by:
Jurgens Bekker Attorneys Inc., Bedfordview
Hendrie Conradie Inc., Bloemfontein
For the Respondents: T J Bruinders SC (with E Richards)
Instructed by:
Moodie & Robertson, Johannesburg
Claude Reid Attorneys, Bloemfontein.