SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 009727/2023
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED
DATE
SIGNATURE
In the matter between:-
THE BODY CORPORATE OF WONDERPARK ESTATE Applicant
v
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Respondent
Heard on: 2 September 2025
Delivered: 5 December 2025 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SAFLII. The date and
time for hand-down is deemed to be 14:00 on 5 December 2025.
Summary:
1. The decision of the respondent in refusing the applicant ’s Section 3 (8)
application in terms of the BY-LAWS is reviewed in terms of PAJA.
2. The exhaustion of the internal remedies “argument” has no merit . The
point was belatedly raised long after the respondent acceded to litigating
before court. The internal appeal process in terms of Section 62 of the
Systems Act is no longer available to the applicant, no need to seek
exemption from exhausting the internal appeal process.
3. Even if the supplementary record and supplemented reasons are
permitted, the decision maker did not have regard thereto. On identifying
the reasons proffered in the decision , there is no reference to the
supplemented reasons . It is not permissible to add documents to the
record when they are not considered, nor can they be intended to justify
the initial reasons . See National Lotteries Board v South African
Education and Environment Project 2012(4) SA 504 SCA at par 27.
4. The consideration of the Section 3(8) BY-LAW application was an error in
law. The application has to be considered in the facts and not subject to
limitations. The reasons proffered are therefore irrational and arbitrary.
5. The Municipality holds is executive authority to structure and manage its
administrative affairs in terms of the Constitution. The provision of waste
removal services is the Municipality’s responsibility both under the
Constitution and National Environmental Waste Management Act . It
however does not exclusively render waste removal services . External
service providers may do so provided that they obtain consent from the
Municipality.
6. Exceptional circumstances in terms of Section 8(1)(c)(ii)(a) of PAJA are
present for the court to substitute the decision of the Municipality. It is
further just an equitable to make a decision . Trencon Constitution v
Industrial Development 2015 (5) SA 245 CC.
ORDER
___________________________________________________________________
It is ordered:-
1. The decision of the 18 August 2022 of the respondent to refuse the application in
terms of Section 3 (8) of the City of Tshwane M etropolitan Municipality Waste
Management BY-LAW for cancellation of the services in respect of account
number 5[...] the decision is reviewed and set aside;
2. The application made by the applicant in terms of Section 3(8) of City of Tshwane
Metropolitan Municipality Waste Management BY-LAW, for cancellation of the
services in respect of account number 5[...] (the decision) Is granted and the
Municipality is directed to give effect to the cancellation within 30 days of the
order;
3. The respondent is directed to select an appropriate authorized external service
provider and communicate same to the applicant within 30 days of this order;
4. The respondent is ordered to pay the costs related to this application on Scale C.
JUDGMENT
___________________________________________________________________
KOOVERJIE J
THE REVIEW
[1] This review application was instituted in terms of the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”), alternatively in terms of a legality challenge
against the decision of the respondent, the City of Tshwane Metropolitan
Municipality (“the Municipality”). The Municipality refused the applicant’s
application in terms of Clause 3(8) of the BY-LAW of the Municipality.1 The
applicant will be referred to as “Wonderpark”.
[2] Clause 3(8) of the BY-LAW reads as follows:
“A written request for cancellation or services from the occupier of the premises to
which a service is rendered by the Municipality must provide reasons for the
request. The Municipality must be satisfied that the request is justified and the
Municipality reserves its right to decline cancellation where such requests are
deemed unacceptable in the circumstances.”
1 The City of Tshwane Metropolitan Municipality Waste Management BY-LAW published under LAN 1393 in
Gauteng Provincial Gazette 274 at 20 August 2016. The preamble reads:
“The City of Tshwane Metropolitan Municipality Waste Management BY-LAW was published on 24
August 2016 in terms of LAN1393 in the Gauteng Provincial Gazette 274 (whereby the City Manager
of the Municipality in terms of Section 7 of the Gauteng Rationalisation of Local Government Affairs
Act 10 of 1998) and read with Section 13 of the Local Government Municipal Systems Act 2000 (32 of
2000) and Section 162 of the Constitution of the Republic of South Africa 1996 (Act 108 of 1996) and
Section 9 of the National Environmental Management Waste Act 2008 (Act 59 of 2008) the BY-LAWs
was approved by Council on 30 June 2016.
The objective of the BY-LAWs was to regulate and provide for waste management services, including
collection and disposal of solid or other forms of waste, and to ensure that all practices concerning
waste management are aligned to the Constitution, NEMWA, and the Systems Act, and in general to the
forms, practices and procedures incidental thereto to ensure a sustainable, safe and healthy environment
within the City of Tshwane jurisdictional area”.
[3] The impugned decision in refusing the applicant’s request was contained in the
letter of 18 August 2022. The applicant argued that the decision is unlawful,
irrational, arbitrary and unconstitutional.
THE ISSUES FOR DETERMINATION
[4] On the procedural points raised, the issues for determination are:
4.1 whether Wonderpark was required to exhaust the internal
remedies, more specifically in terms of Section 62 Systems Act; 2
and
4.2 whether this court should permit the filing of the supplementary
record, and the supplementary reasons;
4.3 Whether the documents in the supplemented record could have
been considered by the decision maker at the time the decision was
made.
[5] The main issue for determination is whether the provision of rendering waste
removal services was the exclusive obligation of the Municipality.
THE BACKGROUND
[6] Since the litigious history between the parties is extensive, I will only highlight the
salient facts. The applicant, Wonderpark, is a large estate which constitutes 1480
units and has for over a decade been serviced by the Municipality in respect of
2Local Government Municipal Systems Act 32 of 2000 (“Systems Act”)
the waste removal services. However, since 2015 there have been various
disputes between the parties, particularly regarding the substandard services and
inaccurate billing for the services that were actually rendered. It was alleged that
the Municipality charged for bins that it had not collected, and it failed to render
satisfactory services. It had got to a point where the bins were overflowing with
excess waste and which waste was accumulating at various areas of the
premises for days. Wonderpark had already instituted legal proceedings regarding
the aforesaid issues. The matter was settled in May 2023 when the Municipality
agreed to credit Wonderpark Estate in an amount of just over R1.75 million.
Despite the settlement the issues still persist.
[7] During the litigation between the parties Wonderpark acquired the services from
an alternative service provider at a much discounted rate where it claimed to have
benefitted with a 75% cost saving.
[8] Wonderpark, still dissatisfied with the non-performance of the Municipality,
applied to have the Municipality’s waste removal services cancelled in terms of
Section 3(8) of the BY-LAW. This was communicated in a detailed request where
it motivated why the cancellation was justified.
EXHAUSTION OF INTERNAL REMEDIES
[9] In respect of this application before me, the Municipality raised the point that
Wonderpark failed to exhaust the internal remedies in terms of Section 62 of the
Systems Act.3 This defence was raised belatedly in the second supplementary
answering affidavit of January 2025.
[10] Wonderpark highlighted that Section 62 of the Systems Act provides for an appeal
procedure which may be utilized by any person whose rights are affected by a
decision taken in terms of a delegated power to appeal against that decision. A
Section 62 appeal lies only against a decision taken by persons or structures to
whom the powers have been delegated.
[11] The Municipality pointed out that since the administrative decision of the
Municipality is challenged, Section 7(2) of PAJA finds application, which
precludes a court from reviewing any administrative action until the internal
remedies have been exhausted. Section 7(2)(a) of PAJA stipulates:
3 Section 62 of Systems Act 32 of 2000 reads:
“(1) A person whose rights are affected by a decision taken by a political structure, political office
bearer or counselor or staff member of a Municipality in terms of a power or duty delegated or
sub delegated by the delegating authority to the political structure, political office bearer,
counselor or staff member, may appeal against a decision by giving written notice of the
appeal and reasons to the municipal manager within 21 days of the date of the notification of
the decision.
(2) The municipal manager must promptly submit the appeal to the appropriate Appeal Authority
mentioned in subsection (4).
(3) The Appeal Authority must consider the appeal and confirm they will revoke the decision but
no such variation or revocation of a decision may detract from any rights that may have
accrued as a result of a decision.
(4) When an appeal is taken against a decision taken by
(a) a staff member other than the municipal manager, the municipal manager is the
appeal authority;
(b) the municipal manager, the executive committee or executive mayor is the appeal
authority or the municipality does not have an executive committee or executive
authority or the municipality does not have an executive committee or executive
mayor, the council of the municipality is the appeal authority; or
(c) a political structure, political office bearer or a counselor-
(i) the municipal council is the appeal authority where the council comprises of
less than 15 counselors; or
(ii) the committee of counselors who were not involved in the decision and
appointed by the Municipal Council for the purposes is the appeal authority
where the council comprises of more than 14 counselors.
(5) An appeal authority must commence with an appeal within 6 weeks and decide the appeal
within a reasonable period …”
“No court or tribunal shall review an administrative action in terms of this Act
unless any internal remedy provided for in any other law has first been exhausted.
If a court is not satisfied that any internal remedy has been exhausted.
[12] Section 7(2)(c) then stipulates:
“A court can in exceptional circumstances and on application by the person
concerned exempt a person from the obligation to exhaust any internal remedy if
the court or tribunal deems it in the interest of justice.”
[13] The thrust of the Municipality’s case was premised on Koyabe4 where the court
emphasized the importance of having the internal remedies exhausted and
highlighted that the judicial process would be premature as the higher
administrative body should be given an opportunity to exhaust its own existing
mechanism. It expressed:
“Internal remedies are designed to provide immediate and cost-effective relief,
giving the executive the opportunity to utilize its own mechanisms, rectifying the
irregularities first, before aggrieved parties resort to litigation. The courts play a
vital role in providing litigants with access to justice, the importance of more
readily available and cost-effective internal remedies cannot be gainsaid.
First approaching a court before the higher administrative body is given the
opportunity to exhaust its own existing mechanisms undermines the autonomy of
the administrative process. It renders the judicial process premature, effectively
usurping the executive role and function. The scope of administrative action
extends over a wide range of circumstances, and the crafting of specialist
administrative procedures suited to the particular administrative action in question
enhances procedural fairness as enshrined in our Constitution. Courts have often
emphasized that what constitutes a ’fair’ procedure will depend on the nature of
the administrative action and circumstances of the particular case. Thus, the
the administrative action and circumstances of the particular case. Thus, the
4 Koyabe & Others v Minister for home Affairs & Others (Lawyers for Human Rights as amicus curiae) 2010 (4)
SA 327 (CC) at para 35,36 and 37
need to allow executive agencies to utilize their own fair procedures is crucial in
administrative action…
Once an administrative task is completed, it is then for the court to perform its
review responsibility, to ensure that the administrative action or decision has been
performed or taken in compliance with the relevant constitutional and other legal
standards.
Internal administrative remedies may require specialized knowledge which may
be of a technical and/or practical nature. The same holds true for fact-intensive
cases where administrators have easier access to the relevant facts and
information. Judicial review can only benefit from a full record of an internal
adjudication, particularly in the light of the fact that reviewing courts do not
ordinarily engage in fact-finding and hence require a fully developed factual
record.”
[14] In addition the Municipality argued that:
14.1 no exceptional circumstances have been proffered by Wonderpark to
excuse them for exhausting the appeal process. There were no facts
placed in the founding papers that set out such exceptional circumstances;
14.2 Wonderpark was required to bring a substantive application for exemption
in terms of Section 7(2)(c) of PAJA. Absent such application it is
impermissible for a court to deal with the merits. 5
14.3 The exhaustion of the internal processes are paramount as the decisions
that would have regard to the Municipality’s policy-laden objectives.
Factors such as the inner cleaning of the City, the revenue knowledge
taking into consideration the non-visible services, and the cross-
subsidisation of municipal services provided to the indigent.
5 Nichol and Another v Registrar of Pension Fund and Others 2008(1) SA (3) SCA
See Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality 894/2016 [2017] ZASCA 23 (25
March 2017)
14.3 Furthermore, it was not the Municipality’s duty to advise Wonderpark of
the appeal processes available to it.
[15] The applicant demonstrated that on the facts that the exhaustion of the internal
processes argument was another ploy to postpone the matter. It argued:
15.1 firstly, the applicant was never informed that it could appeal the decision in
terms of the Systems Act or that it had alternative remedies when the
Municipality’s decision was communicated. Moreover, when Wonderpark
had enquired as to whether any internal processes had to be followed, the
Municipality failed to respond. This enquiry was made way back on 11
November 2022 through the applicants attorney;
15.2 secondly, the identity of the decision-maker was not communicated to
Wonderpark. The author of the letter was Ms Alice Mphahlele in her
capacity as Acting Divisional Head: Waste Management Services. Section
62(1) of the Systems Act requires that appeals be lodged with the
Municipal Manager who is required to submit the appeal to the appropriate
appeal authority. The identification of the appropriate appeal authority is
dependent on who initially took the impugned decision. It further
challenged the authority of the decision maker. The decision can only be
taken by a political structure6, political office-bearer, counselor or staff
member, provided that they have the delegated authority. There was no
proof of such delegated authorization despite the Municipality contending
that she had such authority. Wonderpark, however, persisted with the
6 the term “political structure” is defined in the Systems Act as in relation to a Municipality means the council or
the Municipality or any committee or any other collective structure of the Municipality elected, designated or
appointed in terms of the specific provisions of the Municipal Structures Act
argument that even if they were delegated, the decision-making body was
never identified;
15.3 thirdly, the Municipality waived its insistence in having the dispute resolved
through the internal processes when it fully participated in the legal
proceedings before court. The Municipality received the review application
at the beginning of February 2023 and willingly filed no less than three
answering affidavits, it supplemented the record twice, obtained a
postponement and further indulgences from the court to allow it to ventilate
issues, particularly constitutional issues. In Dengetenge Holdings7 the
Constitutional Court expressed that it would be extremely unfair to
abandon the entire court litigation process when the parties opted to have
their disputes heard in court;
15.4 fourthly, that even if the Municipality insisted on following through with the
appeal process in terms of Section 62 of the Systems Act, the remedy is
no longer available to Wonderpark. The time-period to lodge the appeal
was 21 days. It was submitted that the period cannot be condoned by the
Municipal Manager. Even this court does not have the discretion to
condone a time limit set out in the statute.8
[16] I was referred to Amandla GCF Construction9 where the court confirmed this
proposition. It stated:
7 Dengetenge Holdings Pty Ltd v Southern Sphere Mining and Development Co Ltd 2014 (5) SA 138 CC at para
60
8 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) at par 77 where the court stated that a court has no
jurisdiction to condone non-compliance with statutory time periods.
9 Amandla GCF Construction CC and Another v Municipal Manager, Saldanah Bay Municipality and others
2018 (6) SA 63 WCC at par 32 to 39
“there is no general power afforded to the Municipality to extend a statutory time-
period, except if that power is conferred on it as allowed in that particular section
of the statute”.
There would be no purpose then to institute an appeal in terms of Section 62
when the decision-making body has no power to extend the time-period.
[17] Having heard both parties, I find that that this belated point of law does not have
merit for the following reasons:
17.1 I reiterate that internal remedies are designed to provide immediate and
cost-effective relief given and allows for the administrators to utilize its own
mechanisms and rectifying irregularities first before aggrieved parties
resort to litigation;
17.2 The parties resorted to litigating before a court for a number of years
without the Municipality ever raising this legal point. It raises this point at
the tail end in its second supplementary affidavit. Its duty to exhaust
internal remedies fell away when it consented to have the matter ventilated
in court;
17.3 Furthermore, in law, the remedy is no longer available to Wonderpark. The
Section 62 appeal had to be instituted within 21 days. The decision taken
was dated 18 September 2022. The Municipality has not addressed this
defence in the papers.
[18] The court in Koyabe10 expressed that the requirement to exhaust internal
remedies should not be rigidly imposed and it should not be used to frustrate the
efforts of an aggrieved person or to shield the administrative process from judicial
scrutiny. PAJA recognizes the need for flexibility, acknowledges in Section 7
(2)(c) that exceptional circumstances may require that a court condone the non-
exhaustion of the internal process and proceed with the judicial remedies. The
requirement is therefore not absolute.
[19] I have noted that Wonderpark could only address this point in its answer to the
Municipality’s second supplementary affidavit. In my view, there was no need to
request an exemption as no internal remedies were available to the applicant.
Moreover, there was no response when Wonderpark inquired if there were such
external processes that it had to comply with.
SUPLEMENTED RECORD AND SUPLEMENTED REASONS
[20] The Municipality explained that the need to file an additional record came about
during a consultation with counsel in July 2024 where certain documents were
identified that should have been included in the record. The Municipality’s legal
team realized that the original record of 24 July 2023 was inadequate.
[21] As a result, on 19 August 2024 the Municipality was granted leave by the court to
augment its record and the parties were directed to file further supplementary
10 Koyabe , Paragraph 38
affidavits. On 10 September 2024 the Municipality then filed its complete record
together with supplemented reasons.
[22] It was submitted that the documents are not new but were in existence at the time
that the impugned decision was taken and was in the mind of the staff members.
Consequently, the documents are relevant and were considered by staff members
who arrived at the decision to decline Wonderpark’s cancellation application in
terms of Section 3(8) of the BY-LAW.
[23] The Municipality pointed out that a full record makes provision for a fair hearing.11
With the supplemented record Wonderpark would be able to fully and properly
assess the lawfulness of the decision-making process. Hence the supplemented
record was for the benefit of Wonderpark and more importantly for the benefit of
the court. The Municipality further pointed out the true reasons behind the
Municipality’s decision in rejecting the cancellation application is contained in the
supplemented reasons.
[24] The supplemented reasons shed light on the policies on indigent non-billable and
budgetary constraints are material to the matter. They are not ex post facto
reasons provided in isolation to the case but reasons to reflect the policy
considerations of the City.
11 Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC)
It is only when the full record is filed will the court be able to perform its constitutionally entrenched
review function and a litigant will have its rights in terms of Section 34 of the Constitution to have a
justiciable dispute decided in a fair public hearing before a court with all the issues being ventilated.
[25] It was explained that the Municipality took into account the non-billable municipal
service such as litter picking operations, clearance of illegal dumping,
management and operation of gardening disposable sights and inner city
cleansing. It was also highlighted that due the increased number of indigent and
informal settlements which has significantly stretched the budget of the City. The
City relies on the affluent to subsidize some of the municipal services to the
poorest of the poor. Therefore, the City took a decision not to allow any
withdrawal of municipal services in areas which the City has capacity,
Wonderpark falls within those areas.
[26] It is common cause that the reasons were supplemented on the advice of senior
counsel. According to senior counsel’s advice, the review raised a very important
constitutional issue with wide-ranging implications and therefore it would be unjust
to consider the review application on the papers as they stand. These allegations
were set out in the Municipality’s postponement application.
[27] The supplemented reasons were inter alia to the effect that in terms of its cross
subsidation policy, it provides services to the indigent, and these expenses are
subsidized from those who can afford. Hence it concluded that it would be difficult
for the City to render waste management services to its clients and to meet its
environmental objectives if the property owners like those in Wonderpark Estate
withdraw from the City’s collection services as the City relies on the affluent to
subsidize some of its municipal services to the poorest of the poor.
[28] I raise my concern with the belated advice and the preparation of the
supplemented record which includes the supplemented reasons. The core
enquiry remains - whether or not the decision-maker, when communicating in the
impugned decision of 18 August 2022, had regard to the supplementation which
included the cross subsidation policy. The question that has to be answered is-
What documents did the decision-maker consider when arriving at the decision of
18 August 2022.
[29] On my reading of the 18 August 2022 letter, the reasons provided therein are
crisp and clearly set out. None of the reasons therein give light to the
supplemented reasons. It is not permissible to add documents to the record if they
were not considered. The purpose of the record is to indicate what was before
the decision-maker at the time the decision was made. Any justification after the
reasons were communicated cannot be regarded as true reasons for the
decision.12
[30] Prior to the supplementation, the record only constituted of the following, namely:
12 National Lotteries Board and Others v South African Education and Environment Project 2012(4) SA 504
SCA at par 27
“27 The duty to give reasons for an administrative decision is a central element of the
constitutional duty to act fairly, and the failure to give reasons, which includes proper or
adequate reasons, should ordinarily render the dispute position reviewable. In England, courts
have said that such a decision would ordinarily be void and cannot be validated by different
reasons given afterwards - even if they show that the original decision may have been justified.
For in the truth the later reasons are not the true reasons for the decision, but rather in ex post
facto retaliation of a bad decision.
30.1 Wonderpark’s Section 3(8) application;
30.2 The BY-LAWS, and;
30.3 Landfill Consult’s respective permits.
[31] The supplemented record constituted of the following documents, namely:
31.1 a Mayoral Committee report dated 5 October 2022 in disclosing the
indigent policy;
31.2 minimum requirements for disposal of waste by landfill;
31.3 minimum requirements for water monitoring at waste management
facilities;
31.4 draft national standard for disposal of waste;
31.5 landfill sites operational plan;
31.6 tariff schedule;
31.7 Soshanguve landfill site permit; and
31.8 Soshanguve project report.
[32] Wonderpark highlighted that certain documents, such as the Mayoral Committee
Report of 5 October 2022 and the tariff schedule of 19 June 2024 came into
existence after the impugned decision was communicated and could therefore not
have been considered. It was further argued that the rest of the documents could
also not have been the source for the decision taken. This becomes evident when
considering the reasons provided by Ms Mphahlele.
[33] Furthermore, Ms Mphahlele’s only confirmed that “the documents have always
been part of the policies of the City”. She further alleged that the documents
existed, but nowhere does she state that she took these policies and factors into
account when making the decision. Surely if she had regard to the supplemented
documents, she would have at least recorded its obligation in terms of the cross
subsidation policy.
[34] In my view, the supplemented reasons were clearly intended to justify the initial
reasons given. They clearly do not constitute the reasons for the decision taken.
Moreover, no mention is made as to how the supplemented reasons came about
and whether the decision maker was the author of these new reasons.
THE IMPUGNED DECISION
[35] It is appropriate to set out the contents of the 18 August 2022 letter where the
impugned decision was set out. The relevant extract reads:
The Environment and Agriculture Management Department Waste Division would
like to respond as follows:
“The City of Tshwane continues to be committed in delivering services to its
communities in the most sustainable manner as well as to promote a safe and
healthy environment. The provision of waste removal services is the
Municipality’s responsibility as delegated by the Constitution and the National
Environmental management Waste Act, of 2008. The City of Tshwane therefore
provides waste removal services to all premises that are in its jurisdiction, with the
exception of some businesses and residential complexes that make use of private
waste removal services that are approved by the City.
In assessing your request, the Waste Management Division of the City of
Tshwane has taken into consideration the legislative responsibility of the
municipality in the provision of basic services.
We would therefore like to draw your attention to the following legislative
provisions:
Section 152(b) and (d) of the Constitution of South Africa states the objects of the
municipality as follows:
(b) to ensure the provisions of services to communities in a sustainable
manner;
(d) to promote a safe and healthy environment.
We also like to draw your attention to the following provision of the National
Environmental Management Waste Act, of 2008 “Waste Act”, Section 24 which
states the following:
No person may collect waste for removal from premises unless such a
person is-
(a) a municipality or municipal service provider;
(b) authorized by law to collect that waste, where authorization is
required.
Based on the above, it is the Division’s view that the provision of a waste removal-
service is a responsibility of the Municipality as delegated by the Constitution and
the National Environmental Management Waste Act, of 2008.
All regular waste collection services will be provided by the Municipality through
its internal mechanism or on contracted external mechanism as may be deemed
appropriate by the Municipality in terms of Section 76 of the Municipal Systems
Act 32 of 2000.
Therefore, all users of refuse collection services will receive services through the
Municipality or its service providers and will pay service charges to the
Municipality for such a service.
With the legislative responsibility to ensure provision of services, the municipality
cannot terminate a provision of service to a customer where there is no other
lawful mechanism of providing the service.
Furthermore, Landfill Consult (Pty) Ltd might be a holder of a valid authorization
issued by the City of Tshwane – they are not authorized to provide waste services
to City’s clients, who is currently being billed by the city for the same service. The
private contractor’s permit conditions (conditions 4 & 6) as issued by the City,
private contractor’s permit conditions (conditions 4 & 6) as issued by the City,
which prohibit them from providing the City of Tshwane clients with waste removal
services.
Considering the above, your request for termination of refuse removal services by
the City of Tshwane, for Wonder Park Estates, premise acc no. 5003706734
which is currently being billed by the Municipality for refuse removal services is
not approved…”
[36] In summary the reasons proffered for declining the application were:
36.1 The provision of waste removal services is the Municipality’s responsibility
under the Constitution and the National Environment Waste Management
Act (NEWMA);
36.2 The Municipality provides waste removal services to all premises within its
jurisdiction (the city area);
36.3 The Municipality however is aware that certain business and residential
complexes make use of private waste removal services approved by the
Municipality;
36.4 The Municipality bears a legislative responsibility to ensure the provision of
services and therefore cannot terminate the services where there is no
lawful mechanism of providing the service;
36.5 Since Wonderpark is being billed by the Municipality for the same services,
the application cannot be granted;
36.6 Landfill Consult was not authorised to provide waste services to existing
clients of the Municipality, who are billed by the City for the same service.
[37] After hearing both parties, it is necessary to clarify the Municipality’s
responsibilities. The Municipality does not dispute the fact that apart from it
providing direct services, there are also external service providers authorized by
the Municipality who can also render services refuse services. The contention the
Municipality however persists with is that it has the executive and legislative
authority to administer local government matters in terms of the Constitution.
[38] The Municipality correctly submitted that:
38.1 the executive and legislative authority of the Municipality vest in its
Municipal Council. The Municipality has a right to govern, on its own
initiative, the local government affairs of its community subject to National
and Provincial Legislation as provided for in the Constitution;
38.2 the National or a Provincial Government may not compromise or impede a
Municipality’s ability to exercise its powers or perform its functions;
38.3 Section 152 sets out the objects of local government, which inter alia is to
provide democratic and accountable government for local communities
and to ensure the provision of services to the communities in a sustainable
manner;
38.4 the National and Provincial Governments are required to support and to
capacitate the Municipalities to manage their own affairs, to exercise their
powers and to perform their functions;13
38.5 Section 156 sets out the powers and functions of the Municipality. Section
156(1) provides that the Municipality has executive authority in respect of
and has a right to administer local government matters listed in Part B of
Schedule 5;
13 Section 151 (2) of the Constitution
38.6 In this manner, the refuse removal and waste disposal is within the
exclusive authority of the City;
[39] This misunderstanding is centered on the reasons given in the Section 3(8)
refusal. Firstly, Wonderpark contested the Municipality’s understanding that
consent in terms of Section 3(8) of the BY-LAWS is only granted in exceptional
circumstances and in instances where the services are required outside of the
municipal area. It was contended that the Municipality cannot claim the exclusive
rights to render services in the city. Moreover, the Municipality erred in that it
could never have been intended that Section 3(8) consent can only be granted in
those limited circumstances. The wording of Section 3(8) of the BY-LAW does not
impose this limitation.
[40] No issue is taken regarding the importance of the financial viability of the
municipalities for the fulfilment of their constitutional mandate, the obligations on
municipalities as highlighted by the applicant in terms of Section 152, 153 as well
as 156 of the Constitution, more particularly Section 156(5) gives a municipality
the right to exercise its power reasonably to ensure the effective performance of
its functions or that the municipality is also authorised to impose rates on
property.
[41] The Municipality by virtue of the Section 76 (1)(b) of the Systems Act may allow
for municipal services to be provided through an external mechanism by entering
into service delivery agreements with the external service providers inter alia the
municipal entity, another municipality, an organ of state or any other institution,
entity or person legally competent to operate a business activity.14 The
Municipality in fact acknowledged that there are some businesses and residential
complexes that make use of private waste removal services that are approved by
the City.
[42] A permit holder is defined in the BY-LAW as:
“A private service provider who has submitted the information required in
Schedule 1 of this BY-LAW to the Municipality and who is in possession of a
written confirmation and carries on his person a positive identification, nametag or
card, as the case may be, issued by the Municipality that the particulars of such
service provider was registered on the Municipal Register of private service
providers and who are authorised to provide waste removal services in the area of
jurisdiction of the Municipality in terms of the written permit issued by the
Municipality.”
14 Section 76(1)(b) of the Systems Act reads:
“A municipality may provide a municipal service in its area or part of its area through -
An external mechanism by entering into a service delivery agreement with:
(i) a municipal entity;
(ii) another municipality;
(iii) an organ of state including
(aa) a water services committee established in terms of the water;
(bb) a licensed service provider registered or recognized in terms of the
National Legislation; and
(cc) a traditional authority;
(v) a community-based organisation or any other non-governmental organisation
legally competent to enter into such an agreement, or to have any other
institution, entity or person legally competent to operate a business activity.”
[43] Wonderpark’s understanding of the Municipality’s obligations are:
43.1 the Municipality does not have an exclusive obligation to render waste
removal services and that it can be executed by alternative service
providers;
43.2 Section 152(2) recognises that a Municipality may not be able to achieve
the objectives due to various challenges, both administrative and financial.
Therefore, provision was made for authorised parties to provide the waste
management services. Even in terms of Section 24 of NEMWA the waste
collection removal can be executed by authorised parties other than the
Municipality.
43.3 Section 156 of the Constitution empowers a Municipality to administer
waste removal in terms of its obligations in terms of Section 152(1)(b) and
(d). and that the Municipality is ultimately responsible for the
administration of waste collection, and to promote a safe and healthy
environment.
[44] On a proper interpretation of the provisions in the Constitution, there can be no
doubt that the Municipality has executive authority through its Municipal Council to
structure and manage its administration including the budgeting and planning
processes in order to prioritize all the needs of the community.15
15 Section 153 of the Constitution
[45] Wonderpark’s main gripe is that the Municipality could not insist on providing the
services directly to Wonderpark. Its application to utilize an alternative service
provider in light of the motivation should have been granted. Section 3(8) of the
BY-LAW makes provision for a party to request the cancellation of the direct
services of the Municipality. There was no reason for the Municipality to decline
the cancellation particularly in light of the case Wonderpark presented.
[46] In its request Wonderpark provided a detailed motivation for the services of an
external service provider that is registered with the City, which is in compliance
with Section 76(b) of the Systems Act. However, the Municipality in its reasons
did not deal with issues raised by the Wonderpark, particularly that its waste
removal services remains inadequate and is often disrupted without notice, that
Wonderpark had spent additional amounts for the waste to be removed through
other service providers, that the refuse is not collected as per the scheduled dates
in terms of the Municipality’s roster and that only half of the 200 bins are
collected, and despite the insufficient services Wonderpark is still charged for all
the services which the Municipality claims it is entitled to.
[47] The Municipality was further informed that there had been various disputes
lodged with the City, Wonderpark pointed out that the continued use of the City as
Wonderpark’s refuse removal service provider is no longer feasible. Moreover,
there is pending litigation with regard to the City’s incorrect billing methods and
Wonderpark has incurred ongoing legal costs as a result.
[48] Wonderpark acknowledged that Section 32 of the BY-LAW made provision for
waste management services by authorised service providers. It therefore
motivated that it would acquire the services of Landfill Consult (Pty) Ltd and
attached the permit of this entity to the application. It is not in dispute that Landfill
Consult was in fact a registered external service provider of the Municipality.
[49] In response the Municipality in refusing the application relied on two general
grounds, namely:
49.1 it has an obligation to provide waste collection services, either internally or
through an external provider;
49.2 secondly since Wonderpark is on the Municipality’s billing list, it cannot
utilise the services of Landfill Consult.
[50] I reiterate these reasons are given without addressing the particular facts
presented by Wonderpark. In addition, the incorrect billing to Wonderpark was a
real concern which eventually led to litigation. Clearly these are arbitrary as they
do not deal with the contentions of Wonderpark’s request. Moreover, the purpose
of section 3(8) application could never have been limited to parties who are not on
the municipalities billing list or parties who are not located in the municipal area.
[51] Every action taken in the exercise of public power must be underpinned by
plausible reasons. Such reasons must justify the action taken. If the action is
taken for no reason or no justifiable reason it is arbitrary.16
[52] The conclusion remains arbitrary and reads:
“Considering the above, your request for termination of refuse removal services
by the City of Tshwane for Wonderpark Estates, premise account number
5003706734 which is currently being billed by the Municipality for refuse removal
services is not approved…”
[53] Moreover, each application must be assessed in its own merit. It was argued
there would be no point in affording the parties a remedy in terms of the BY-LAW
for cancellation of the Municipality’s services, but then to refuse it based on a
general principle.
[54] In Democratic Alliance17 the court set out a three-stage inquiry in order to
determine if a decision is rational.
“There is therefore a three-stage inquiry to be made when a court is faced with an
executive decision where certain factors were ignored. The first is whether the
factors ignored are relevant and the second requires to consider whether the
failure to consider the material concerned ( the means) is rationally related to the
16 Minister of Justice and Another v SA Restructuring and Insolvency Practitioners Association and Others 2018
(5) SA 349 (CC) at paragraph 49
17 Democratic Alliance v President of South Africa and others 2013 1 SA 248 CC at para 39
purpose for which the power was conferred; and the third which arises only if the
answer to the second stage of the inquiry is negative, is whether ignoring relevant
facts is of a kind that colours the entire process with irrationality and thus renders
the final decision irrational”
SUBSTITUTION OF DECISION
[55] The Municipality contends that an important constitutional issue on specific
powers and functions entrusted to the Municipalities has been raised and this
court should not usurp its powers and functions by making a decision of its
preference that would frustrate the balance of power implied in the principle of
separation of powers. It is especially so where the decision was policy laden.
[56] Section 3(8) of the BY-LAW makes provision for cancellation of services where
reasons can be advanced to justify cancellation Section 32 of the BY-LAW further
makes provision for the appointment of an external service provider.
[57] Wonderpark submitted that there are exceptional circumstances in this matter that
warrants substitution of the Municipality’s decision. Section 8(1)(c)(ii)(a) of PAJA
provides that the court may grant a just and equitable order including in
exceptional cases substituting its own decision for that of an administrator.
[58] In Trencon Construction18the Constitutional Court considered the exceptional
circumstances enquiry in terms of the said provision and held:
“In our Constitutional framework, a court considering what constitutes exceptional
circumstances must be guided by an approach that is consonant to the
Constitution.”
And it further emphasized:
“The exceptional circumstances enquiry require the examination of each matter
on a case-by-case basis that accounts for all relevant facts and circumstances.” 19
[59] Further at para 47 the court stated that in conducting an inquiry as to whether
substitution of an administrator's decision is warranted two main factors have to
be considered, namely whether a court is in a good position as the administrator
to make the decision and secondly whether the decision of the administrator is a
foregone conclusion. The two factors must be considered cumulatively. Thereafter
other factors may be considered such as delay incompetence and bias but the
ultimate consideration is whether the substitution order is just and equitable. This
will involve a consideration of fairness to all parties.20
[60] Having regard to facts of this matter, I am of the view that this court has met the
threshold to substitute the decision of the Municipality. The factors taken into
account are that:
18 Trencon Construction v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA
245 (CC)
19 Trencon at par 46
20 Trencon at Para 47
60.1 Wonderpark has lost all trust in the Municipality’s ability to render
appropriate services to it. It had to request its security personnel and
estate manager to keep daily records of the date on which the Municipality
arrives to render its services and the details of the services rendered by
the Municipality such as bins on site, details of the bins not collected, bins
left damaged and bins left unclean;
60.2 Wonderpark cannot be expected to remain in a relationship with the
Municipality where it will continue to provide inadequate services;
60.3 it would serve no purpose to remit the matter to the Municipality for a
decision given the relationship between the parties as well as the history of
the litigation;
60.4 the Municipality considers Wonderpark to be an affluent entity which is on
its billing list, and makes it possible to carry out cross subsidation,
60.5 The issues before the court are crisp, namely that there is a lawful
mechanism in terms of Section 3(8) of the BY-LAW to request the
cancellation of the Municipality’s direct services and the court is required to
determine if the request should be granted.
60.6 It was further submitted that justice and equity demanded the court to
exercise its power to substitute the Municipality’s decision.
[61] In its defence the Municipality pointed out that the court is not in a position to
determine the identification of alternative service provider. In response the
applicant submitted that firstly that the choice and selection of an alternative
service provider was not a consideration that is prescribed and to be taken into
account in terms of Section 3(8) of the BY-LAWs. Secondly, in the event that the
court does grant cancellation, Wonderpark would have to appoint an alternative
service provider that will be authorized to conduct the waste removal services in
the municipal area where Wonderpark is situated.
[62] The said factors listed in my view constitute exceptional circumstances which
requires this court to grant an order that would be just and equitable and with the
due consideration of fairness to both parties.
[63] The facts motivated by Wonderpark in its Section 3(8) application justifies
Wonderpark to receive the services of an external service provider who is
authorized by the Municipality. In fact, the Municipality proposed this
consideration but gave no undertaking.
[64] Particularly in its supplementary affidavit, the Municipality had proposed that
Wonderpark utilize the services of an external service provider. I am therefore
inclined to firstly set aside the decision of the Municipality and grant the Section
3(8) application. Secondly remit only the aspect – that the Municipality provides a
list of permitted service providers who can render the refuse removal services to
Wonderpark. Wonderpark will them select a suitable provider therefrom.
COSTS
[65] In exercising my discretion, there is no reason why the general principle that cost
should follow the result should not apply. Wonderpark has been successful in this
application and is entitled to its costs. The respondent is thus ordered to pay the
cost of this application, on a Scale C.
_____________________________
H. KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
Counsel for the applicant: Adv. MJ Engelbrecht SC
Instructed by: Adams & Adams
Counsel for the third respondent: Adv. JA Motepe SC
Adv. B Lukhele
Instructed by: Ncube Incorporated Attorneys
Date heard: 2 September 2025
Date of Judgment: 5 December 2025