IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 103018/2025
In the matter between:
SOUTH AFRICAN PROPERTY OWNERS’
ASSOCIATION Applicant
and
CITY OF CAPE TOWN Respondent
and
GOOD PARTY Intervening Party
SOUTH AFRICA FIRST FORUM First amicus curiae
CAPE TOWN COLLECTIVE RATEPAYERS’
ASSOCIATION Second amicus curiae
and
Case no: 139023/2025
In the matter between:
AFRIFORUM NPC Applicant
and
CITY OF CAPE TOWN METROPOLITAN
MUNICIPALITY First Respondent
MUNICIPAL COUNCIL OF THE FIRST
RESPONDENT Second Respondent
EXECUTIVE MAYOR OF THE FIRST
RESPONDENT Third Respondent
MUNICIPAL MANAGER OF THE FIRST
RESPONDENT Fourth Respondent
MINISTER OF WATER AND SANITATION Fifth Respondent
MINISTER OF FINANCE Sixth Respondent
MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS Seventh Respondent
Heard: 2 to 4 December 2025
Delivered: 30 April 2026
Coram: Mabindla-Boqwana JP and Le Grange and Savage JJ
Summary: Municipal powers – Section 229 of the Constitution – Sections 74, 75
and 75A of the Systems Act – municipality’s entitlement to charge for
services based on property value bands – unlawful and invalid.
ORDER
1. The Good Party is granted leave to intervene and is joined as a party in
case number 103018/2025.
2. The late filing of the opposing affidavit of the seventh respondent, the
Minister of Cooperative Governance and Traditional Affairs, in case
number 139023/2025 is condoned.
3. It is declared that the charges imposed on ratepayers by the City of Cape
Town (the City), as respondent in case number 103018/2025 and first
respondent in case number 139023/2025 , in its 2025/2026 budget in
respect of city-wide cleaning, water and sewerage , are unlawful and
invalid insofar as they are inconsistent with the Constitution, national
legislation and the City’s Tariff By-law. Such charges are set aside with
effect from 30 June 2026.
4. The City’s counter-applications are dismissed.
5. The City is to pay the costs of:
5.1 the applicants in case numbers 103018/2025 and 139023/2025,
including those of two counsel on scale C;
5.2 the applicants in opposing the City’s counter -applications, also
including those of two counsel on scale C; and
5.3 the Good Party in case number 103018/2025 , also including
those of two counsel on scale C.
JUDGMENT
THE COURT
Introduction
[1] Before us are two applications, which were heard together , which concern the
scope of local government’s revenue-raising powers in the delivery of municipal
services (main applications). At issue is the lawfulness of three charges, a City-wide
cleaning charge, a fixed water charge and a fixed sewerage charge (the charges),
imposed by the City of Cape Town (the City) on ratepayers with effect from 1 July
2025 in terms of the City’s 2025/6 budget.
[2] In the first application, the applicant, the South African Property Owners’
Association (SAPOA), seeks a declarator y order that the charges, each calculated
from property value bands established by the City, are unlawful and invalid insofar as
they are inconsistent with the Constitution, national legislation and the City’s Tariff
By-law. SAPOA further seeks that the order of invalidity be suspended for a period
of two months to enable the City to correct the constitutional defects that arise from
the imposition of such charges.
[3] In the second application, the applicant, Afri Forum NPC (AfriForum), seeks a
declaration that the charges are inconsistent with the Constitution and the principle of
legality to the extent that they are determined from property values. Such relief is
sought on the basis that the City is not empowered to use property values to determine
any fees, surcharges, tariffs, taxes, levies and duties, and may do so only when
imposing a rate in terms of the Local Government Property Rates Act 6 of 2004 (the
Rates Act). AfriForum seeks that the declaration of invalidity be suspended until the
end of the 2025/2026 financial year, 30 June 2026, to allow the City to rectify the
defects in their imposition.
[4] The City opposes both applications. It contends that, if it is unsuccessful, a just
and equitable remedy would be to suspend the declaration of invalidity with a
sufficient period granted to the City to address budgetary shortfalls resulting from the
order. The City launched conditional counter-applications, only in the event that this
Court upholds the main applications , in both the SAPOA and AfriForum matters. In
both it seeks a declaration that section 75A, read with 74(2) of the Local Government:
Municipal Systems Act (Systems Act) ,1 is inconsistent with the Constitution and
invalid to the extent that it does not make provision for a municipality to impose fixed
tariffs with due regard to property value bands. It seeks that the order of invalidity be
suspended for 24 months. Pending remedial legislation, the City proposes the
following reading-in to section 75A(1):
‘(1) A municipality may—
(a) levy and recover fees, charges or tariffs (including fixed tariffs determined by
reference to property value bands) in respect of any function or service of the
municipality.’
[5] In its counter-application in the AfriForum matter, the City seeks, in addition to
the aforementioned relief , a declaration that section 75 of the Systems Act and
sections 10 and 17 of the Water Services Act2 are unconstitutional and invalid.
[6] SAPOA and AfriForum oppose the City’s counter-applications.
[7] The Minister of Water Affairs and the Minister of Finance, the fifth and sixth
respondents in the AfriForum application, respectively, do not oppose the matter. The
seventh respondent in the same application, the Minister of Cooperative Governance
and Traditional Affairs ( the Minister), opposes only the City’s conditional counter -
application.
[8] The Good Party seeks leave to intervene in SAPOA’s application. The City
abides that application, having opposed its admission as an amicus curiae . The Cape
Town Collective Ratepayers’ Association (CTCRA) and South Africa First Forum
(SAFF) were admitted, prior to the hearing of the matter, as amici curiae in the
SAPOA application.
1 Act 32 of 2000.
2 Act 108 of 1997.
Parties
[9] SAPOA is a no t-for-profit company that has operated in the commercial and
industrial real estate sector since its establishment in 1966. It launched this application
to represent, protect and advance the interests of its members, which currently
comprise more than 90% of South Africa’s commercial property industry, including
both large and small-scale property-owning entities in Cape Town. It relies on section
38(a), (d) and ( e) of the Constitution as the basis for its legal standing , acting in its
own interest, in the public interest and as an association in the interest of its members.
[10] AfriForum is a not -for-profit company and registered non -governmental
organisation. Its purpose and objectives include the promotion of and advocacy for
human, civil and other constitutional rights. AfriForum pursues this application in the
public interest on behalf of ratepayers in the City.
[11] The Good Party is a registered political party and opposition party in the City’s
Municipal Council.
[12] The City is a Category A metropolitan municipality , responsible for all local
government matters set out in Chapter 7 of the Constitution.
[13] The Minister, in opposing the City’s counter-applications, cites the role of the
Department of Cooperative Governance and Traditional Affairs ( COGTA) in
providing support and oversight to local governments to ensure the governments fulfil
their developmental roles and deliver essential services to local communities. COGTA
seeks to foster collaboration between the different spheres of government to enhance
service delivery and governance effectiveness.
[14] The CTCRA is a voluntary association representing the interests of residents
and ratepayers in Cape Town. SAFF is a national civic society group based in Cape
Town with a focus on public accountability and governance issues.
Factual background
[15] On 30 April 2018, the City’s Acting Executive Director of Finance wrote to the
Director-General of COGTA stating that, due to the drought and water restrictions,
water consumption in the City had fallen to almost half of what it was in 2015. This
was due to residents having reduced water consumption and property owners having
invested in boreholes, water harvesting mechanisms and grey water systems. Since
sewerage tariffs are based on a portion of the water consumed, the reduction in water
consumption had resulted in consumers benefiting from the use of the sewerage
system without being charged for it. It was noted in the letter that the City was
restructuring water tariffs to compensate for lower usage levels and the provision of
infrastructure to provide potable water to properties.
[16] The letter proposed:
(i) Changes to the funding mechanism for sanitation from ‘Rates and
General Service income’ (the property Rates stream) to a mechanism
that uses property valuation. It was noted that a legal opinion obtained
had advised that while this was legally permissible, it would cause the
charge to be a municipal tax and not a tariff, therefore falling outside of
the Rates Act.
(ii) Since s ection 19(1)( d) of the Rates Act prohibits a municipality from
imposing more than one cent in the Rand per property, which is assessed
on property values, if the City funds sanitation costs through a property
rate, it loses its VAT zero rating and value-added tax (VAT) is payable
on the whole property rate. All sanitation charges are subject to VAT
under the VAT 419 – Guide for Municipalities, irrespective of whether
they are funded through a tariff or property tax. To ‘maintain the zero
rating for that portion of property rates that are not part of the sanitation
budget, a second cent in the Rand is essential’.
(iii) The effecting of a n amendment to the Rates Act to allow the City to
charge more than one cent in the Rand to ensure ‘a
certain/sound/reliable basis’ to receive the revenue to transparently fund
the service, with each municipal account to clearly indicate the cost of
the sanitation service . This would be progressive and developmental as
lower-valued properties w ould pay less; exemptions, reductions rebates
and cross-subsidisation of the poor could be implemented; and it would
solve the VAT dilemma faced by municipalities.
[17] The Rates Act was not amended. Instead, in 2018, the City imposed a water
tariff structure which contained a fixed charge component, determined with reference
to the size of a property’s water meter, and a consumption -based component.
Sewerage costs were determined as a percentage of municipal water consumption.
[18] This remained the position until the City’s 2025/2026 budget was approved on
26 June 2025. A draft budget published on 27 March 2025 received over 14 000
comments, with a revised budget published thereafter. In terms of the final budget
adopted, since 1 July 2025, residential customers have been billed for three additional
charges not linked to consumption : a city-wide cleaning charge, a fixed water charge
and a sewerage charge, all calculated against the value of a property within property
value bands established by the City. This is in addition to the applicable consumption-
based tariff. Given that the charges amount to a fee for services, the charges are
subject to VAT under the Value-Added Tax Act3 (VAT Act). The implementation of
the water and sewerage charges for commercial properties has been delayed for one
year from 1 July 2025.
[19] The city -wide cleaning charge was previously funded from rates . However,
until more recently , the service was funded by 10% of electricity sales. From 1 July
2025, this charge is calculated against the value of a property within fixed property
2025, this charge is calculated against the value of a property within fixed property
value bands established by the City. Commercial property owners continue to
contribute to city-wide cleaning through an electricity surcharge.
3 Act 89 of 1991.
Legislative framework
The Constitution
[20] The City has executive authority and administers local government matters
listed in Part B of Schedules 4 and 5 of the Constitution and any other matter assigned
to it by national or provincial legislation. 4 The executive and legislative authority of a
municipality is vested in its municipal council,5 with municipalities having ‘the right
to exercise any power concerning a matter reasonably necessary for, or incidental to,
the effective performance of its functions ’.6 It may, in terms of section 156(2) ‘make
and administer by-laws for the effective administration of the matters which it has the
right to administer’. A by -law that conflicts with national or provincial legislation is
invalid under section 156(3).
[21] Section 215(1) of the Constitution requires that ‘[n]ational, provincial and
municipal budgets must promote transparency, accountability and the effective
management of the economy, debt and the public sector’.
[22] Section 229 makes provision for municipal fiscal powers and functions:
‘(1) Subject to subsections (2), (3) and (4), a municipality may impose—
(a) rates on property and surcharges on fees for services provided by or on behalf of the
municipality; and
(b) if authorised by national legislation, other taxes, levies and duties appropriate to local
government or to the category of local government into which that municipality falls,
but no municipality may impose income tax, value -added tax, general sales tax or
customs duty.
(2) The power of a municipality to impose rates on property, surcharges on fees for services
provided by or on behalf of the municipality, or other taxes, levies or duties—
4 Section 156(1) of the Constitution.
5 Section 151(2) of the Constitution.
6 Section 156(5) of the Constitution.
(a) may not be exercised in a way that materially and unreasonably prejudices national
economic policies, economic activities across municipal boundaries, or the national
mobility of goods, services, capital or labour; and
(b) may be regulated by national legislation.’
The Local Government: Municipal Systems Act
[23] The Systems Act, which came into force on 1 March 2001, provides necessary
definitions for ‘municipal service’ 7 and ‘basic municipal service .’8 Section 4 permits
municipal councils to finance municipal affairs by ‘charging fees for services’ and
‘imposing surcharges on fees, rates on property and, to the extent authorised by
national legislation, other taxes, levies and duties’.
[24] Standards for tariff policies are established by sections 74, 75 and 75A. Section
74 states:
‘(1) A municipal council must adopt and implement a tariff policy on the levying of fees for
municipal services provided by the municipality 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.
(2) A tariff policy must reflect at least the following principles, namely that—
(a) users of municipal services should be treated equitably in the application of tariffs;
(b) the amount individual users pay for services should generally be in proportion to their
use of that service;
(c) poor households must have access to at least basic services through–
(i) tariffs that cover only operating and maintenance costs,
7 ‘A service that a municipality in terms of its powers and functions provides or may provide to or for the
benefit of the local community irrespective of whether—
(a) such a service is provided, or to be provided, by the municipality through an internal
mechanism contemplated in section 76 or by engaging an external mechanism contemplated
in section 76; and
(b) fees, charges or tariffs are levied in respect of such a service or not.’
(b) fees, charges or tariffs are levied in respect of such a service or not.’
This definition was inserted by section 35(a) of Act 51 of 2002.
8 ‘A municipal service that is necessary to ensure an acceptable and reasonable quality of life and, if not
provided, would endanger public health or safety or the environment.’
(ii) special tariffs or lifeline tariffs for low levels of use or consumption of
services or for basic levels of service; or
(iii) any other direct or indirect method of subsidisation of tariffs for poor
households;
(d) tariffs must reflect the costs reasonably associated with rendering the service,
including capital, operating, maintenance, administration and replacement costs, and
interest charges;
(e) tariffs must be set at levels that facilitate the financial sustainability of the service,
taking into account subsidisation from sources other than the service concerned;
(f) provision may be made in appropriate circumstances for a surcharge on the tariff for a
service;
(g) provision may be made for the promotion of local economic development through
special tariffs for categories of commercial and industrial users;
(h) the economical, efficient and effective use of resources, the recycling of waste, and
other appropriate environmental objectives must be encouraged;
(i) the extent of subsidisation of tariffs for poor households and other categories of users
should be fully disclosed.’
[25] Section 75 provides:
‘(1) A municipal council must adopt by -laws to give effect to the implementation and
enforcement of its tariff policy.
(2) By-laws in terms of subsection (1) may differentiate between different categories of users,
debtors, service providers, services, service standards and geographical areas as long as such
differentiation does not amount to unfair discrimination.’
[26] Section 75A, introduced with effect from 5 December 2002, reads:
‘(1) A municipality may—
(a) levy and recover fees, charges or tariffs in respect of any function or service of the
municipality; and
(b) recover collection charges and interest on any outstanding amount.’
Section 75A(2) provides that the fees, charges or tariffs are levied by a municipality
by way of a resolution passed by the Municipal Council, with a supporting vote of a
majority of its members.
The Local Government: Municipal Property Rates Act
[27] The Rates Act came into force on 2 July 2005. Though the Act does not define
‘rates on property’, i t defines a ‘rate’,9 ‘rateable property ’10 and ‘public service
infrastructure’.11
[28] A municipality, in terms of section 2 of the Rates Act, ‘may le vy a rate on
property in its area ’ though, pursuant to section 2(3), this power is subject to the
Constitution, the Rates Act and the rates policy required by section 3.
[29] Section 3 concerns the adoption and contents of a rates policy, with section 4
requiring that before adopting such a policy, a municipality ‘must’ engage in
community participation in accordance with Chapter 4 of the Systems Act, advertise
that the policy has been prepared and invite the local community to comment and
make representations on it. By -laws may then, in terms of section 6, be adopted and
published to give effect to the rates policy.
[30] In terms of s ection 7(1), ‘when levying rates, a municipality must, subject to
subsection 2, levy rates on all rateable property in its area ’. Section 7(2) does not
oblige a municipality to levy rates on certain types of property, including those that
are municipal-owned or constitute public service infrastructure. However, the rate
9 ‘A municipal rate on property envisaged in section 229(1)(a) of the Constitution.’
10 ‘Property on which a municipality may in terms of section 2 levy a rate, excluding property fully excluded
from the levying of rates in terms of section 17’
11 ‘Publicly controlled infrastructure’, which includes—
‘(b) water or sewer pipes, ducts or other conduits, dams, water supply reservoirs, water treatment
plants or water pumps forming part of a water or sewer scheme serving the public;
. . .
plants or water pumps forming part of a water or sewer scheme serving the public;
. . .
(j) any other publicly controlled infrastructure as may be prescribed.’
levied by the municipality on a property ‘must be an amount in the Rand on the
market value of the property’.12
[31] Part 3 of the Rates Act concerns limitations on the levying of rates. Section 16
provides—
‘(1) In terms of section 229(2)(a) of the Constitution, a municipality may not exercise its power to
levy rates on property in a way that would materially and unreasonably prejudice (a) national
economic policies; (b) economic activities across its boundaries; or (c) the national mobility
of goods, services, capital or labour.
2(a) If a rate on a specific category of properties, or a rate on a specific category of properties
above a specific amount in the Rand, is materially and unreasonably prejudicing any of the
matters listed in subsection (1), the Minister, with the concurrence of the Minister of Finance,
must, by notice in the Gazette, give notice to the relevant municipality or municipalities that
the rate must be limited to an amount in the Rand specified in the notice.
…
(3)(a) Any sector of the economy, after consulting the relevant municipality or municipalities and
organised local government, may, through its organised structures, request the Minister to
evaluate evidence to the effect that a rate on any specific category of properties, or a rate on
any specific category of properties above a specific amount in the Rand, is materially and
unreasonably prejudicing any of the matters listed in subsection (1).
(b) If the Minister is convinced by the evidence referred to in paragraph ( a) that a rate on any
specific category of properties, or a rate on any specific category of properties above a
specific amount in the Rand, is materially and unreasonably prejudicing any of the matters
listed in subsection (1), the Minister must act in terms of subsection (2).’
The Municipal Fiscal Powers and Functions Act
[32] The Municipal Fiscal Powers and Functions Act 13 (the MFPFA) came into
force on 7 September 2007. The purpose of the MFPFA is—
force on 7 September 2007. The purpose of the MFPFA is—
‘[t]o regulate the exercise by municipalities of their power to impose surcharges on fees for services
provided under section 229(1)( a) of the Constitution; to provide for the authorisation of taxes, levies
12 Section 11(a) of the Rates Act.
13 Act 12 of 2007.
and duties that municipalities may impose under section 229(1)( b) of the Constitution; and to provide
for matters connected therewith.’
[33] The objects of the MFPFA , set out in section 2, include to ‘promote
predictability, certainty and transparency in respect of municipal fiscal powers and
functions’; and ‘ensure that municipal fiscal powers and functions are exercised in a
manner that will not materially and unreasonably prejudice national economic
policies, economic activities across municipal boundaries, or the national mobility of
goods, services, capital or labour’.
[34] The MFPFA similarly provides definitions for ‘municipal base tariff ’,14
‘municipal surcharge’15 and ‘municipal tax’.16
[35] Section 3 provides that the MFPFA applies to—
‘municipal surcharges and municipal taxes referred to in section 229 of the Constitution, other than
rates on property regulated in terms of the Local Government: Municipal Property Rates Act, 2004
(Act 6 of 2004), and municipal base tariffs regulated under the Local Government: Municipal Finance
Management Act, 2003 (Act 56 of 2003), the Local Government: Municipal Systems Act, 2000 (Act
32 of 2000), or sector legislation’.
[36] In terms of section 8(1):
‘The Minister may prescribe compulsory national norms and standards for imposing municipal
surcharges, which may include, amongst others, maximum municipal surcharges that may be imposed
by municipalities.’
14 ‘[T]he 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;
(d) a reasonable rate of return, if authorised by a regulator of or the Minister responsible for that
municipal service.’
15 ‘A charge in excess of of the municipal base tariff that a municipality may impose on fees for a municipal
service provided by or on behalf of a municipality, in terms of section 229(1)(a) of the Constitution.’
16 A ‘tax, levy or duty that a municipality may impose in terms of section 229(1)(b) of the Constitution.’
[37] Section 8(2) details issues that such norms and standards m ay contain. To date,
the Minister has not prescribed applicable norms and standards. Section 9 sets out the
obligations of a municipality in respect of municipal surcharges, including requiring
compliance with the norms and standards prescribed and annual reviews of municipal
surcharges as part of the municipality’s budget preparation process. In terms of
section 9(2):
‘Section 75A(2), (3) and (4) of the Local Government: Municipal Systems Act, 2000 (Act 32 of
2000), relating to the manner in which fees, charges or tariffs are levied and how a resolution in that
respect must be made known, applies with the changes required by the context to a municipal
surcharge.’
The VAT Act
[38] Section 11(2) of the VAT Act provides that:
‘Where, but for this section, a supply of services, other than services contemplated in section 11(2)(k)
that are electronic services, would be charged with tax at the rate referred to in section 7(1), such
supply of services shall, subject to compliance with subsection (3) of this section, be charged with tax
at the rate of zero per cent where—
…
(w) a ‘municipal rate’ as defined in section 1,17 is levied by a municipality’.
Water Services Act
[39] Section 10(4) of the Water Services Act prohibits water services institutions
from using tariffs that are ‘substantially different from any prescribed norms and
17 ‘A rate levied by a municipality in terms of section 2 of the Local Government: Municipal Property Rates
Act, 2004 on ‘rateable property’ as defined in section 1 of that Act respectively: Provided that a municipal rate
does not include—
(a) A single charge levied by that municipality for rates and other supplies of goods or services
such as—
(i) electricity, gas, water; or
(ii) drainage, removal or disposal of sewerage or garbage or
(iii) goods or services that are incidental to, or necessary for the supply of those goods or
services to that owner; or
services to that owner; or
(b) a rate levied in respect of supplies of goods or services contemplated in paragraph (a).’
standards’. Sections 12 to 18 require water services development plans to establish the
scope of water provision and related tariff structures. The prescribed norms and
standards referred to in section 10(4) include the City’s Water Services Development
Plan.
[40] Section 21 of the Water Services Act requires there to be compliance with
municipal by-laws. Regulations 4(1) and 4(2) of the Regulations18 promulgated under
the Water Services Act do not permit differentiation on the basis of property value.
Tariff By-law
[41] Section 1(5) of the City’s 2007 Tariff By -law (By-law) provides that the By -
law may differentiate between different categories of users, debtors, service providers,
services, service standards and geographical areas as long as such differentiation does
not amount to unfair discrimination. In terms of s ection 4(4), the contents of a tariff
policy must specify the basis of differentiation for tariff purposes between these
categories.
[42] The By-law requires that the City’s tariff policy reflect the principles referred
to in section 74(2) of the Systems Act and states that it may specify any further
principles for the imposition of tariffs which the City may wish to adopt , with the
manner in which such principles are to be implemented to be detailed in terms of the
tariff policy. Compliance with the principles in section 74(2) of the Systems Act is
mandatory. Clause 3(2) of the By -law provides that ‘the City shall not be entitled to
impose tariffs’ other than in terms of a valid tariff policy.
Tariff Policy
[43] The City’s Tariff Policy (Tariff Policy) , which took effect on 1 July 2007,
defines a City-wide cleaning charge in Annexure 7 as ‘a fixed basic charge recurring
on a monthly basis on Residential properties (including Sectional Title Units) and
Vacant land ’. It is calculated based on the value of a property, set out in bands, to
18 Norms and Standards in respect of Tariffs for Water Services in terms of Section 10(1) GN R652 GG
22472, 20 July 2001.
which 15% VAT is added. The Policy details the cleaning services to be rendered and
provides for certain exemptions from its reach.
[44] Chapter 2 of the Tariff Policy defines a fixed basic charge19 and provides that it
is charged ‘irrespective’ of consumption or use of the service and that it is paid when
premises are connected to the supply.
[45] Chapter 4 of the Tariff Policy explains the rationale for the City -wide cleaning
tariff on the basis that it is—
‘embedded in the ‘polluter pays’ principle, which is the cornerstone of the National Environmental
Management Act, Act 107 of 1998, which amply specifies that all generators of waste (including
businesses and households) are responsible for the costs of managing the waste generated. The range
of services covered by the City -Wide Cleaning tariff cannot be measured using a standard unit e.g.
consumption or usage, as the specific benefit to each property or user category is difficult to
determine. The City -Wide Cleaning tariff is therefore not based on individual consumption but
instead designed to provide a collective benefit, ensuring a reasonably clean and hygienic
environment for all Residential customers.’
Parties’ Submissions
SAPOA
[46] SAPOA takes issue with the charges imposed by the City on the basis that they
constitute property rate s, calculated against property value bands, that were not
adopted in the manner required by the Rates Act. With reliance on Gerber v MEC for
Development Planning and Local Government, Gauteng (Gerber),20 it submits that a
property rate is a rate linked to the size of the property or in proportion to its value.21
In light of this interpretation and section 229(1)(a) of the Constitution, SAPOA argues
19 ‘A fixed basic charge/fee recurring on a monthly basis as payment to the right of service provision/access to
the network. It is applicable throughout the entire period during which the relevant premises are connected to
the supply mains irrespective of whether any consumption is used or not.’
20 Gerber v MEC for Development Planning and Local Government, Gauteng (Gerber) 2003 (2) SA 344 (SCA).
21 See too Rates Action Group v City of Cape Town (Rates Action Group SCA) 2006 (1) SA 496 (SCA).
that it would be absurd to regard charges based on property values as service charges,
as this would permit a circumvention of the Rates Act.
[47] If the charges amount to service charge s, SAPOA asserts that they do not
conform with section 74(2)(b) and (d) of the Systems Act as they are not proportional
to use, nor do they reasonably reflect the cost of rendering the service concerned . In
addition, it states that the charges are also inconsistent with the By -law. It contends
that charging for services must be limited to services actually rendered to the
ratepayer.22 Further, t he charges are irrational in that, u nlike rates which are not
subject to VAT, their imposition disregards the fact that VAT is payable on such
charges by property owners . R eliance on principles of equity, fairness and
affordability does not cure th is irrationality or t he lack of compliance with section
74(2)(b).
[48] In addition, in relation to the cleaning charge, SAPOA says that t he City is
unable to correlate the charge with the real cost of cleaning . No explanation was
provided for the significant reduction in the charge between the first and final
iterations of the City’s budget and how the significant reduction would not correlate in
a reduction in the extent or scope of the cleaning services to be provided .
Furthermore, the cleaning charge is impermissible because it rests on a fundamental
error of fact, namely, that it is cheaper to impose such a charge than to increase rates.
This, says SAPOA, is fundamentally false and inherently impossible, which makes its
imposition reviewable on the basis of such material error of fact.
[49] In relation to the fixed water charge, SAPOA contends that it is irrational not to
align the charge with section 74(2)(b) of the Systems Act and base it on actual use.
High-value properties already pay higher tariffs for consumption. It also contends that
the charge violates section 25 of the Constitution by penalising property owners who
the charge violates section 25 of the Constitution by penalising property owners who
use alternative water -harvesting solutions, such as boreholes and rainwater systems.
This, SAPOA contends, is a substantial interference with property use , is exploitative
in that it disproportionately affects owners with alternative water solutions and is
22 Rademan v Moqhaka Local Municipality (Rademan) 2013 (4) SA 225 (CC) para 42.
arbitrary insofar as there is no sufficient reason to impose a higher fixed water charge
on property owners regardless of their consumption. SAPOA notes that the City’s
justification, that it seeks to prevent the risk of budgetary shortfall and ensure the
upkeep of infrastructure, is a political decision. It contends that the true reason for not
increasing rates is to avoid public outcry, which is not a justification for deprivation of
property.
[50] Contrary to the City’s argument that the factors in section 74(2) of the
Systems Act merely create an enabling framework, SAPOA contends that context and
purpose cannot be used to override the requirements of the legislative text, which
reflects certain mandatory principles . According to SAPOA, the City must
demonstrate that it is permitted to charge ‘sundry tariffs’ which are not in compliance
with section 74(2).
[51] SAPOA disputes the City’s contention that its failure to attack the Tariff Policy
bars it from challenging the lawfulness of individual charges or tariffs provided for in
such Policy. It argues that, if this were not permissible, there would be no recourse for
affected persons when charges are applied in a manner contrary to section 74(2) of the
Systems Act.
[52] SAPOA opposes the City’s conditional counter-application on the basis that the
constitutional challenge is collateral : i t is not the right remedy sought by the right
person at the right time in the right proceedings. 23 In addition, the City failed to plead
its case with sufficient specificity , doing so in a manner which is impermissibly
vague. It contends further that section 75A of the Systems Act is not unconstitutional,
given that a municipality is entitled to charge fees for services under section 74. It
takes issue with the conditionality of the counter-application on the grounds that it is
at odds with the basis of the City’s opposition to the main application.
[53] SAPOA argues further that t he City’s constitutional obligations can be
[53] SAPOA argues further that t he City’s constitutional obligations can be
achieved through consumption -based fees or rates increases. As a result, t here is no
23 As stated in Oudekraal Estates (Pty) Ltd v City of Cape Town (Oudekraal) 2004 (6) SA 222 (SCA) para 35.
merit in the contention by the City that section 75A is restrictive. It says it is material
that the City does not challenge section 74(2) of the Systems Act. Lastly, if the
charges imposed constitute rates as contended by the applicants , the reading -in relief
sought by the City would cause significant conflict between section 75A and the
remainder of the Systems Act and other national legislation.
AfriForum
[54] AfriForum contends that the charges imposed are unlawful under sections 74,
75 and 75A of the Systems Act as they are not proportional to use or reflective of the
real costs incurred by the City for services rendered , nor do they align with the Tariff
By-law, which requires compliance with section 74 of the Systems Act. Linking the
charges to property value bands imposes a flat service charge on all properties within
a value band in a manner which is not proportional to the value of a property , nor
consumption-based. The result is that the charges imposed amount to a flat rate, akin
to a property rate or municipal tax, which, AfriForum submits, is unconstitutional.
[55] AfriForum further contends that the only categories of permissible exceptions
indicated by the word ‘generally’ in section 74 of the Systems Act, are if an exception
is expressly authorised by legislation or if it is not reasonably possible to comply with
the principle. The tariff principles listed in section 74(2) are, in its contention,
peremptory with all words in the section required to be given meaning , as was
confirmed by the Supreme Court of Appeal in Capricorn District Municipality and
Another v South African National Civic Association (Capricorn).24
[56] AfriForum furthermore contends that the charges are not ‘sundry tariffs’, with
no reference to monthly or value -based fixed charges in the definition of sundry
tariffs, nor do they comply with the By-law. This is in violation of section 75 of the
Systems Act , which requires the adoption of municipal by -laws to give effect to a
Systems Act , which requires the adoption of municipal by -laws to give effect to a
municipality’s tariff policy. According to AfriForum, there is no congruence between
the three charges and the By -law. This renders the c harges unlawful and
24 Capricorn District Municipality and Another v South African National Civic Association (Capricorn) [2014]
ZASCA 39; 2014 (4) SA 225 (SCA) paras 21-2.
impermissible. Pursuant to section 156(3) of the Constitution, municipal by-laws
which conflict with national legislation are invalid . As such, the By -law cannot be
used by the City as an avenue to bypass national legislation.
[57] AfriForum contends further that the City’s entitlement under section 75A to
recover fees, charges and tariffs in respect of municipal functions or services is bound
by section 74. Contrary to the City’s assertions, section 75A must still operate within
the framework of the Constitution and other legislative provisions.
[58] AfriForum submits that t he c harges are also impermissible under the Water
Services Act , in that s ection 10(4) prohibits water services institutions from using
tariffs that are ‘substantially different from any prescribed norms and standards ’. The
prescribed norms and standards referred to in section 10(4) do not provide for water
tariffs determined based on property value, but requires both fixed and volume -based
charges to be reflective of cost. Since the charges imposed substantially deviate from
the City’s Water Services Development Plan, the charges are impermissible. They are
also contrary to regulations 4(1) and 4(2) made pursuant to the Water Services Act ,
which do not allow for differentiation on the basis of property value, and section 21 of
the Water Services Act which requires compliance with City by-laws.
[59] AfriForum further argues that the City’s imposition of the charges has resulted
in the City assuming a fiscal power not recognised by the Constitution or legislation.
The exercise of this power and the imposition of the charges is irrational and an
arbitrary deprivation of property in violation of section 25 of the Constitution, with no
‘sufficient reason ’ for this and when there exist other lawful methods available to
achieve the same result.
[60] AfriForum contends further that the exercise of the City’s fiscal duties, powers
[60] AfriForum contends further that the exercise of the City’s fiscal duties, powers
and rights must be subject to national legislation.25 It states that the existing balance of
power as set out in the Systems Act and Water Services Act conforms with principles
of co-operative governance and sections 40(2) and 41 of the Constitution. Sections 75
25 Govan Mbeki Local Municipality v Glencore Operations South Africa (Pty) Ltd and Others (Govan Mbeki)
2025 (2) SA 238 (CC) paras 45-51.
and 75A(1) of the Systems Act give effect to the implementation and enforcement of
municipal tariffs , and, it is submitted, do not infringe the City’s exercise of
constitutional rights and obligations. Regarding the constitutionality of the provisions
of the Water Services Act, AfriForum notes that section 155(7) of the Constitution
permits national and provincial oversight of a municipality’s exercise of exclusive
authority. Sections 10 and 17 of the Water Services Act are such oversight.
[61] AfriForum also opposes the City’s conditional counter-application, arguing that
it is material that the City has failed to challenge the constitutionality of the Systems
Act and Water Services Act and that the City should be held to its pleaded case that
section 75A of the Systems Act is unconstitutional insofar as it infringes on the
constitutional powers and obligations of municipalities . AfriForum contends that the
City’s case of unconstitutionality is inconsistent with the basis of its opposition to
AfriForum’s application, namely that it would lose revenue if it the charges were
found impermissible, rather than it would be prevented from providing essential
services. According to AfriForum, the counter-application is also defective because it
is unclear under what circumstances the conditions for it would be met. The interim
reading-in sought by the City is not a just and equitable remedy as it impacts on
national legislation and would permit municipal abuse of fiscal powers in conflict
with the City’s central argument.
City of Cape Town
[62] The City opposes both applications . It states that, in imposing the three
charges, it exercised its powers as provided by the Constitution and national
legislation and acted rationally. It contends that the Constitution and relevant national
legislation do not impose a limitation on charges that may be imposed and that the
relief sought by the applicants would substantially limit its ability to provide
relief sought by the applicants would substantially limit its ability to provide
necessary basic services, more so given the wealth disparities within the City.
[63] The City disputes that the imposition of the charges is ultra vires. It contends
that the water and sanitation charges have volumetric and fixed components and the
cleaning charge amounts to a sundry tariff. T he power to impose such charges stems
from section 229(1) of the Constitution, which does not limit the form of charge or
method by which such charges must be calculated.
[64] The City argues that c ourts should be slow to interfere with its exercise of an
original constitutional power articulated in its tariff model and fund ing of its basic
services. It states that it has the right to levy charges ‘reasonably necessary for, or
incidental to, the effective performance of its functions ’ pursuant to section 156(5) of
the Constitution. No statutory provision places constraints on the forms of tariffs or
charges which can be imposed by local governments. The imposition of fixed charges
can be used to cross-subsidise the provision of services across the City to address
entrenched poverty and inequality and the imposition of the charges should be viewed
through this lens.
[65] The City contends further that the charges imposed are not rates under either
the Constitution or the Rates Act . Even if they were, as an amount in the Rand, rates
are not required by the Constitution or national legislation to be solely based on
consumption, and property value bands are distinct.
[66] According to the City, s ection 75A should not be interpreted in such a manner
as to lead to an impermissible conclusion that a fixed charge is a rate because the
mode of calculating the two overlap when there is no support for this interpretation in
either the Constitution or the Systems Act. The City is entitled to impose charges for
services under section 75A, with the word ‘any’ in section 75A to be read broadly to
grant the City expansive and permissive powers as needed to address its service
delivery obligations.
[67] The City denies that the charges imposed are irrational . It submits that g iven
the constitutional obligation on municipalities to provide municipal services, prioritise
basic needs, promote social and economic development and further the realisation of
basic needs, promote social and economic development and further the realisation of
socio-economic rights, an expansive interpretation of the relevant legislation , which
does not constrain the municipalities’ powers, should be preferred.
[68] The City argues that in imposing the charges it complied with sections 74(2) of
the Systems Act and that, in accordance with Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism (Bato Star),26 not every listed principle is relevant
to every decision pertaining to its Tariff Policy. The City’s priorities are to ensure the
equitable, but not identical, treatment of users, insofar as resources and services are
fairly distributed but also addressing the legacy of apartheid and inequality in service
provision. If feasible, there must be general proportionality between the amount a user
pays and their use of the service; direct or indirect subsidisatio n of basic services to
poor households; financial sustainability of services; and the economical, efficient and
effective use of resources, including through cross-subsidisation.
[69] The City submits that differentiation based on property value bands is
permissible and does not amount to unfair discrimination. It contends that the effect of
the applicants’ interpretation of section 74(2), is that the City would only be allowed
to levy consumption -based tariffs across all municipal services. This is contrary to
section 4(1)(c)(i) of the Systems Act, in which ‘charging fees for services ’ does not
have to be authorised by national legislation.
[70] The City says that s ection 74(2) does not establish mandatory principles, nor
should the word ‘generally’ in section 74(2)(b) be understood to impose an obligation
on the City which cannot be derogated from. Rather, it accords with this Court’s
jurisprudence which, the City contends, found section 74(2) and 75(2)( b) to be non-
mandatory.27 The interpretation of section 74(2) advanced by the applicants cannot
constrain the City’s wide powers to impose tariffs for municipal services in light of
the ordinary grammatical meaning of section 74(2)(b) and the nature of the principles
therein.
therein.
[71] The City states, in addition, that the charges imposed and its Tariff Policy are
consistent with section 74(2)(d) of the Systems Act. It submits that t he case of
Capricorn is distinguishable on the facts and is not authority for the contention that
26 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism (Bato Star) 2004 (4) SA 490
(CC) para 35.
27 With reference to White v City of Cape Town [2010] ZAWCHC 79.
the provisions of section 74(2) are obligatory or that flat charges for services are an
arbitrary deprivation of property.
[72] The City contends that the applicants do not address the use of municipal
sanitation systems and the need to maintain fixed water infrastructure regardless of
consumption levels. If the Tariff Policy complies with section 74(2)(b) and (d) of the
Systems Act, it is irrelevant if there are other lawful means by which the same result
can be achieved.
[73] The City submits that the charges are necessary and desirable to guarantee
certainty and predictability in revenue streams. It says that it is obliged under
section 215(1) of the Constitution to promote effective financial management, and is
empowered by section 227(2) to raise revenue. Imposing f ixed charges based on
property value bands enables equitable determination and ensures appropriate
contribution to infrastructural services, which allows the City to meet its Integrated
Development Plan obligations. The fixed charges are the only means through which it
can raise sufficient funds with certainty to address its constitutional duties and powers
and do not create a ‘double burden ’ or penalty for self -sufficient properties with
water-harvesting solutions, who pay less.
[74] The City argues that the Water Services Act is outside the scope of the ‘suite of
local government legislation’ as conceptualised by Chapter 7 of the Constitution.
[75] The City raises a concern as to the inadmissibility of expert evidence presented
by SAPOA, Good Party and the CTCRA, noting the bias of the experts and their lack
of experience in municipal service delivery. It contends that the evidence and
submissions of the amici curiae should not be taken into consideration or should be
accorded little weight.
[76] In relation to its conditional counter -applications the City argues that, if
municipalities are not entitled to impose fixed charges based on property value bands,
municipalities are not entitled to impose fixed charges based on property value bands,
this will be an impermissible constraint o n a municipality’s ability to exercise its
constitutional powers and duties, including providing services to low -income
individuals. As a result, it contends that section 75A of the Systems Act, read with
section 74(2), is unconstitutional insofar as th is section do es not authorise and
empower the City to levy fixed charges. These charges have been imposed in an effort
to realise the right to water and sanitation in section 27(1) (b) of the Constitution ;
address the constitutional obligation of local governments to provide municipal
services; and reconcile the City’s developmental duties pursuant to section 153 of the
Constitution. The decision to levy the charges is reasonable,28 especially in light of its
funding constraints, the infeasibility of alternative funding methods and a need to
lessen the disproportionate debt burden borne by lower to middle value properties.
[77] Accordingly, the City seeks a declaration that section 75A of the Systems Act
and Water Services Act are unconstitutional insofar as they limit the power of local
government to impose fixed tariffs, including those based on property value bands,
which is an impermissible interference with a power of local government and
curtailment of a reasonable measure for the realisation of constitutional rights.
Minister of COGTA
[78] The Minister argues that t he purpose of the Systems Act is to regulate
municipal fiscal power in the rational manner envisaged by the Constitution . He
contends that there is nothing objectively unconstitutional about sections 75 or 75A of
the Systems Act, or sections 10 and 17 of the Water Services Act.
[79] Furthermore, he submits that it is material that n either SAPOA nor AfriForum
invoke section 75A in their attack against the validity of the charges. The Minister
submits that the counter-applications are therefore not in the nature of a collateral
challenge, which constitutes a challenge to the source of law underpinning coercive
action enforced against the opposing party. There is no coercive action against the
City when SAPOA and AfriForum seek declaratory relief. As a result, the City’s
City when SAPOA and AfriForum seek declaratory relief. As a result, the City’s
counter-applications amount to an attack rather than a reactive defence , which is
28 According to the standards set in cases such as Mazibuko and Others v City of Johannesburg and Others 2010
(4) SA 1 (CC) and Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1)
SA 46 (CC).
impermissible when Merafong City Local Municipality v AngloGold Ashanti Limited
(Merafong)29 requires collateral challenges to be brought by the right person, in the
appropriate proceedings, at the right time, with all relevant evidence. The City does
not meet these requirements in its papers in the counter-applications, with no primary
facts placed before the Court in support of its challenge.
[80] The Minister contends that s ection 75A of the Systems Act was inserted to
address a lacuna in the law in not empower ing municipalities to levy and recover
charges for municipal services and has a rational relationship to the legitimate
government purpose of empowering municipalities to perform their constitutional
functions and duties, with section 75A(1) enabling municipalities to levy and recover
fees. Since nothing in section 75A limits sections 152 and 156 of the Constitution, the
section is not inconsistent with the Constitution.
[81] If the conditional counter -applications are successful, the Minister notes that
the Department has not had the opportunity to comment on the reading -in advanced
by the City but takes issue with it, especially the potential abuse which could result
from allowing charges to be based on property value bands. In the event that the
counter-applications are successful, the Minister seeks that the retrospective effect of
the declaration of invalidity be limited, that the declaration be suspended for 24
months and that the reading-in proposed by the City be rejected.
Good Party
[82] The Good Party seeks to intervene as a party in the SAPOA application on the
basis that it has a material interest in the applications before this Court. It limits its
submissions to two main contentions: first, the fixed charges are unlawful and
imposed in violation of section 74(2)(b) of the Systems Act in that they are not linked
to consumption. Second, it is factually incorrect for the City to contend that the
to consumption. Second, it is factually incorrect for the City to contend that the
cleaning charge is cheaper than charging rates for the provision of this service.
29 Merafong City Local Municipality v AngloGold Ashanti Limited (Merafong) [2016] ZACC 35; 2017 (2)
BCLR 182 (CC); 2017 (2) SA 211 (CC).
[83] The Good Party contends that the fixed charges are not authorised by
section 74(2) of the Systems Act in that they are inconsistent with section 74(2)(b)
and are not proportional. The use of the word ‘generally’ in section 74(2) does not
permit the City to depart from the requirement of the section and does not allow the
absence of a link between the charge and the consumption of services . If the charges
are inconsistent with section 74(2), they are impermissible. The drafting history of
section 74 indicates that payment proportional to usage was expressly desired ‘as far
as practically possible’. Given that the charges are not proportional to usage, they are
ultra vires section 74(2) of the Systems Act and thus in violation of the principle of
legality.
[84] The Good Party contends that the City’s Tariff policy links its cleaning tariff to
the ‘polluter pays ’ principle. However, the cleaning charge is unrelated to this
principle as it is a fixed rate for cleaning services calculated against property value
bands, with no link between the service provided and the charge for it. Paying for
City-wide cleaning through rates would provide a saving on electricity charges and
there would be no payment of VAT. The Good Party further contends that t he City
erroneously argues that the fixed charge for cleaning services is cheaper than charging
rates, yet R1.48 billion for City -wide cleaning previously paid through the surcharge
on electricity is removed from the City’s rates calculation.
[85] Finally, the Good Party seeks that the charges be declared constitutionally
invalid under section 172(1)(a). On remedy, it proposes that the declaration of
invalidity be suspended for an appropriate period , with all payments made to date
refunded.
CTCRA and SAFF
[86] The CTCRA, as amicus curiae, submits that the charges are ultra vires the
Systems Act in that they amount to the imposition of a rate based on property value
Systems Act in that they amount to the imposition of a rate based on property value
bands; and, to the extent that the charges are not a rate, on the authority of Rates
Action Group v City of Cape Town (Rates Action Group HC),30 charging of fixed fees
for services is unlawful. The CTCRA notes that the City accepts that the fixed charges
were not imposed under the Rates Act and that, given as much, the City has levied
fixed charges, which significantly increase the amount ratepayers are charged by the
City. This, it is submitted, has led to an effective increase ranging from 5.8% to 23.9%
for houses within the range of R3.5 million to R7 million and disproportionally affects
sectional title unit owners. This, when there are alternative ways to collect revenue
that are not linked to property values.
[87] Like the CTCRA, SAFF states that the charges imposed by the City are ultra
vires the Systems Act as they are unrelated to consumption or usage ; and that t he
resultant increase for ratepayers is excessive, unaffordable, unfair and unlawful.
Charges levied by the City must accord with section 229(1) of the Constitution and
national legislation. If the primary purpose of the charges is to raise revenue , they are
taxes.31 SAFF states that the charges are ultra vires the Systems Act in that they fail to
comply with the listed principles in section 74(2), because the amount paid for
services is not generally in proportion to usage and the charges do not reflect the cost
reasonably associated with rendering the service. Since the c harges amount to
revenue-raising taxes and as they are not linked to consumption, they are unlawful.
[88] SAFF therefore proposes that the charges be declared invalid, on the basis that
they are unconstitutional and unlawful , with a just and equitable remedy being the
suspension of the invalidity of such charges for two months.
30 Rates Action Group v City of Cape Town 2004 (5) SA 545 (C) (Rates Action Group HC) para 71.
31 With reference to Casino Association of South Africa v Member of the Executive Council for Economic
Development Environmental Conservation and Tourism [2023] ZACC 39; 2024 (5) BCLR 611 (CC) at para 47
and Randburg Management District v West Dunes Properties 141 (Pty) Ltd [2015] ZASCA 135; 2016 (2) SA
293 (SCA).
Discussion
Intervention application: Good Party
[89] In Snyders and Others v de Jager (Snyders) ,32 it was confirmed that to
intervene in and be joined as a party to proceedings, a litigant must have a direct and
substantial legal interest that may be affected prejudicially by the judgment of the
Court in the proceedings concerned.
[90] We are satisfied that the Good Party has such a direct and substantial legal
interest in the merits of the SAPOA application. We accept that if it is not afforded an
opportunity to be heard, its rights or interests, and those of the residents of the City
that it represents, will be prejudicially affected by any judgment that may result from
these proceedings. As was made clear in Snyders, this goes against one of the most
fundamental principles of our legal system that, as a general rule, no court may make
an order against anyone without giving that person the opportunity to be heard. 33 For
these reasons, we find that the Good Party is entitled to intervene in and be joined as a
party to the SAPOA application.
Condonation
[91] The Minister seeks condonation for the 19-day delay in filing an affidavit in the
SAPOA matter, which is explained as having been caused by a delay in procurement
processes to appoint counsel . This application was not opposed and we can find no
reason not to grant it having regard to the extent of the delay and the reasons for it.
Powers of the City
[92] The exercise of public power is only legitimate when it is lawful . Like other
spheres of government, local government may only act within the powers lawfully
conferred on it. 34 Municipal powers derive from the Constitution or from legislation .
32 Snyders v De Jager (Joinder) [2016] ZACC 54; 2017 (5) BCLR 604 (CC) para 6.
33 Id para 9.
34 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC).
When a court is seized with the delineation of the powers, functions, rights and duties
of a sphere of government conceived and entrenched under the Constitution, the
proper starting point of the enquiry must be the Constitution itself.35
[93] In terms of section 152(1) of the Constitution , the objects of local government,
as a distinct sphere of government , include to ensure the provision of services to
communities in a sustainable manner and promote social and economic development.
A municipality must structure and manage its administration and planning processes ,
in terms of section 153, to give priority to the basic needs of the community and
promote the community’s social and economic development. This includes ensuring
that the damaging effects of discriminatory apartheid policies are addressed and that
the living conditions for all of those living in our country’s cities are improved.
[94] In the exercise of its powers, a municipality is expected to be conversant with
the law applicable to its sphere of government and conduct its a ffairs within the
confines of the law. Where it fails to do so, the courts should not be held back from
granting an appropriate order that would have the effect of vindicating the rule of
law.36
[95] The challenge before this Court concerns the constitutionality of the three
charges imposed by the City, each calculated from property value bands.
Nature of the charges
[96] As indicated, the City is authorised by section 229(1)(a) of the Constitution to
impose rates on property and ‘surcharges on fees for services provided for or on
behalf of the municipality’. If authorised by national legislation, ‘ other taxes, levies
and duties appropriate to local government’ may, in terms of section 229(2)( b), be
imposed by a municipality.
35 City of Cape Town v Robertson (Robertson) [2004] ZACC 21; 2005 (2) SA 323 (CC); 2005 (3) BCLR 199
(CC); 67 SATC 176 para 60.
(CC); 67 SATC 176 para 60.
36 Thaba Chweu Rural Forum and Others v Thaba Chweu Local Municipality and Others [2023] ZASCA 25
para 37.
[97] A municipality may finance its affairs, in terms of section 4(1)( a) of the
Systems Act, by ‘(i) charging fees for services; and (ii) imposing surcharges on fees,
rates on property and, to the extent authorised by national legislation, other taxes,
levies and duties’.
[98] Although the Constitution does not expressly provide for ‘charging fees for
services’, this Court has held that the power to impose a surcharge on fees for
services necessarily implies the power to charge fees for services, as a power distinct
from the power to charge property rates.37
[99] Within this context, t he nature of the three charges imposed must be
determined: whether rates on property ; fees for services; surcharges on fees for
services; or other taxes, levies and duties appropriate to local government as
contemplated in section 22 9 of the Constitution . As aptly put by this Court in Rates
Action Group HC, ‘the nature of the payment which has to be made is determined by
its actual nature, not by the label which is put on it’.38
[100] The applicants contend that the charges imposed are property rates, regardless
of what the City has named them. A rate on property is a form of taxation levied under
section 229(1) of the Constitution and the Rates Act. It is not defined in the
Constitution.
[101] In Gerber,39 the Supreme Court of Appeal held that a rate is an ‘assessment
levied by local authorities for local purposes as so much per pound of assessed value
of buildings and land owned’, which is ‘the tried and tested practice of calculating
property rates in relation to size or value of properties.’40 A property rate was found to
be one determined according to the size of property or in proportion to the value of the
property. Steytler and Visser note that:
37 Rates Action Group HC above n 30 para 71.
38 Ibid.
39 Gerber above n 20.
40 Id at paras 23 and 24.
‘What the Gerber decision establishes unequivocally is that property rates have a well -
established meaning of setting a rate against a valued property. This principle thus eschews
‘flat rates’ which, by definition, do not qualify as a rate on property. The converse is equally
true, a service charge based on consumption, but as a rate against the value of the property is
a property rate, whatever it may otherwise be called.’ 41
[102] In Rates Action Group HC,42 this Court considered the legality of a sewerage
charge and refuse removal charge which were calculated based on estimated water
consumption and the value of a property. Relying on Gerber the Court found that the
charges were a property rate and not fees for services and that the label which the City
put on them were not determinative of the nature of the charge. It held that:43
‘A payment which is to be determined by an assessment levied by a local authority at so
much in the rand per assessed value of buildings and land is, following the definition in the
Concise Oxford Dictionary which was adopted by the Supreme Court of Appeal in the
Gerber case, a property rate. It follows that the amounts set out in the first notice were
property rates, and not fees for service.’
[103] The provision of a range of services may be funded by rates or other funding
sources. As was held in Rates Action Group SCA, the Systems Act does not preclude
the City from levying a property rate to cover the cost of services .44 It is accepted that
the Rates Act did not yet exist when these cases were decided. However, nothing turns
on that, as they remain useful in assessing the nature of a charge imposed by a
municipality.
[104] To constitute a ‘rate’, as was made clear in Gerber, the amount levied on
ratepayers must be calculated as a ‘rate in the rand’ based on individual property
values. The City contends that it used property value bands, and not a rate in the Rand,
values. The City contends that it used property value bands, and not a rate in the Rand,
to calculate the three charges. While that is so , in having calculated the charges with
41 Steytler and De Visser’s Local Government Law of South Africa , 2023: Chapter 13 ‘Municipal Property
Rates’, at 1.4.
42 Rates Action Group HC above n 30.
43 Id at para 53.
44 Rates Action Group SCA above n 21 para 12.
reference to property value bands, the City moved into the realm of property rates, yet
adopted an approach which fell outside the method for determining such rates.
[105] The City also failed to adhere to the procedures required to impose a property
rate. In Kungwini Local Municipality v Silver Lakes Home Owners Association 45 the
Court found a flat rate for water consumption to be incompetent and out of kilter with
the foundational principles of our constitutional order. It stated:
‘In a post -constitutional South Africa, the power of a municipality to impose a rate on property is
derived from the Constitution itself...The principle of legality, an incident of the rule of law, dictates
that in levying, recovering and increasing property rates, a municipality must follow procedure
prescribed by the applicable national or provincial legislation in this regard.’
[106] There are further reasons why the charges cannot constitute a proper rate on
property. In order to impose rates on property, a municipality must adopt a rates
policy, which must be advertised and subject to community participation and
comment; and thereafter adopt a by -law to give effect to such rates policy. The
charges do not form part of the City’s adopted rates policy, nor have by -laws been
passed to provide for such charges in accordance with such a rates policy.
[107] Furthermore, VAT is payable on the charges . This, when the VAT Act
expressly provides that it is only rates that are excluded from the payment of VAT.
The three charges are therefore not treated, for taxation purposes , as rates. It follows
for all these reasons that the charges do not meet the requirements of a rate on
property and cannot therefore lawfully be imposed by the City as such.
[108] If the charges cannot constitute a rate on property for reasons discussed, it must
be determined whether they constitute ‘a fee for services’; or a ‘surcharge on fees for
be determined whether they constitute ‘a fee for services’; or a ‘surcharge on fees for
services provided by or on behalf of the municipality, or other taxes, levies or duties’.
[109] A municipality is not obliged to levy fees, charges or tariffs in respect of all of
the services which it provides, with it recognised in South African Municipal Workers
45 Kungwini Local Municipality v Silver Lakes Home Owners Association [2008] ZASCA 83; 2008 (6) SA 187
(SCA); [2008] 4 All SA 314 (SCA); 70 SATC 205 para 44.
Union v City of Cape Town and Others 46 that, in respect of many municipal services,
no charge is or can notionally be levied because those who benefit from the services
are not usually identifiable individuals but members of the public generally.
[110] Where services are funded through fees, s ection 74(1) of the Systems Act
requires that a tariff policy on the levying of such fees for services must be adopted
and implemented. In Capricorn, it was held that a tariff policy ‘must reflect at least ’,
the principles set out in terms of section 74(2) of the Act.47
[111] These principles include that (a) users of municipal services should be treated
equitably in the application of tariffs; (b) the amount individual users pay for services
should generally be in proportion to their use of that service; (c) poor households must
have access to at least basic services through, amongst others, direct or indirect
methods of subsidisation of tariffs for poor households; (d) tariffs must reflect the
costs reasonably associated with rendering the service, including capital, operating,
maintenance, administration and replacement costs, and interest charges; (e) tariffs
must be set at levels that facilitate the financial sustainability of the service, taking
into account subsidisation from sources other than the service concerned; and (f)
provision may be made in appropriate circumstances for a surcharge on the tariff for a
service.
[112] While s ection 75A(1)( a) of the Systems Act permits a municipality to ‘levy
and recover fees, charges or tariffs in respect of any function or service of the
municipality’, by way of a resolution passed by the municipal council,48 this provision
must be read in conjunction with sections 4, 74 and 75 of the Act . Having regard to
the context, language and purpose of the provision, section 75A(1)( a) does not grant
an unbridled power to a municipality to levy and recover fees, charges or tariffs in
an unbridled power to a municipality to levy and recover fees, charges or tariffs in
respect of any function or service provided by the municipality, untethered to a tariff
policy or by-law.
46 South African Municipal Workers Union v City of Cape Town and Others [2003] ZASCA 111; [2003] 4 All
SA 348 (SCA); 2004 (1) SA 548 (SCA); [2004] 1 BLLR 41 (SCA); (2004) 25 ILJ 193 (SCA) para 8.
47 Capricorn above n 24.
48 Section 75A(2).
[113] Were this to be so, it would allow a municipality to bypass the constraints
imposed by section 74(1) and (2) of the Act and permit it to exercise a wide-ranging
power to levy and recover fees, charges or tariffs, subject only to the approval of the
municipal council. We do not accept the City’s contention that it is entitled to impose
charges for services under section 75A, with the word ‘any’ in section 75A to be read
broadly to grant the City whatever expansive and permissive powers it may consider
itself to need in order to address its service delivery obligations.
[114] The City, in terms of its tariff policy, levies fees at prescribed rates for the
provision of municipal services such as water, sanitation, electricity and other
services, with users paying for these services, in accordance with section 74(2)
generally in proportion to their use of the service provided by or on behalf of the
municipality. It does so having regard to the ‘municipal base tariff’ as defined in the
MFPFA.49
[115] The three charges levied by the City are also not surcharges imposed in excess
of the base tariff on fees for municipal services, but are distinct stand -alone charges
levied against ratepayers . We say so for the following reasons . As stated earlier, a
surcharge is ‘a charge in addition to the usual amount paid for something’ 50 or ‘an
additional fee, cost, or tax added to the standard price of a good or service, often to
cover increased expenses like fuel, credit card processing, or late payments’.51
[116] A municipal surcharge may, in terms of section 9(2) of the MFPFA , be
imposed in the same manner set out in the Systems Act for the levying of fees,
charges or tariffs, with a municipality obliged in terms of section 9(3) annually as part
of its budget preparation process to review any municipal surcharges. Thus, where a
municipality seeks to impose a surcharge, section 74(2)(f) requires that provision be
made for such a surcharge in the municipal tariff policy.
made for such a surcharge in the municipal tariff policy.
49 See above n 14.
50 Cambridge English Dictionary.
51 Collins Dictionary.
[117] Since there is no municipal base tariff for cleaning, th e city-wide cleaning
charge is not a charge in excess of such base tariff. Similarly, the water and sewerage
charges are not charges in excess of the base tariff. The three charges are unrelated to
the provision of services calculated i n accordance with such base tariff , but are
separate charges directed not at the provision of services to a particular user but at
funding city-wide infrastructural development and maintenance . If the three charges
are not surcharges, and since they do not constitute a municipal tax , it follows that
they would necessarily then amount to fees for services.
[118] The City’s allegation that the charges should be viewed as ‘sundry tariffs’ as
provided for in the policy must equally fail. A ‘sundry tariff’ means ‘a tariff set as a
fixed rand amount charged for specific services (e.g. connections) and published in a
tariff schedule adjusted from year to year’ . A sensible meaning to these tariffs, taking
into account the context, is that they are once-off fees or tariffs that are charged when
a ‘connection’ is made. Whatever label is given to the charges, the question is whether
it complies with section 74(2) of the Systems Act.
[119] At issue therefore is whether the manner in which such charges have been
imposed is lawful.
Lawfulness of the charges as fees for services
[120] The City contends that the power to impose the three charges stems from
section 229(1) of the Constitution, which does not limit the form of charge or method
by which such charge must be calculated.
[121] It argues that section 74(2) does not limit it to imposing only consumption-
based tariffs ; and section 4(1)(c)(i) of the Systems Act allows ‘charging fees for
services’ without being authorised by national legislation. It states that section 74(2)
does not establish mandatory principles, nor should ‘generally’ in section 74(2)(b) be
does not establish mandatory principles, nor should ‘generally’ in section 74(2)(b) be
understood to impose an obligation on it from which it cannot derogate . It therefore
submits that section 74(2) and 75(2)(b) should be construed as non-mandatory.
[122] We do not agree. The power of a municipality to levy the charges as fees for
services is not unconstrained or unlimited, but subject to the powers lawfully
conferred by the Constitution and legislation on it. Whether the charges are necessary
or desirable , or ensure an equitable or appropriate contribution to infrastructural
services which may allow the City to meet its Integrated Development Plan
obligations, does not resolve whether they are lawful.
[123] What is clear is that the charges are not the only means through which the City
can raise sufficient funds with certainty to address its constitutional and statutory
obligations. Yet, having decided to impose charges as fees for services on ratepayers,
such charges must accord with the requirements set out in section 74 of the Systems
Act. As such, they must be brought into operation by way of a by-law, which follows
the adoption of a tariff policy in respect of which public comment is invited.
[124] Such a tariff polic y ‘must reflect at least’ the principle that users of services
must be treated equitably in the application of tariffs and that the amount that
individual users pay for services generally be in proportion to their use of that service ,
with t he exception being the cross-subsidisation of poor households. Given the
language of section 74(2) and the recordal of the minimum requirements that such a
tariff policy must reflect, we find no merit in the City’s submission that not every
listed principle in section 74(2) must be reflected in its tariff policy.
[125] The decision in Bato Star52 does not come to the aid of the City . In that matter,
it was found that in the Marine Living Resources Act, 53 no particular preference for
the manner in which transformation should be achieved was suggested, with this, to a
significant extent, left to the discretion of the decision -maker.54 The Systems Act is
prescriptive of the principles which must , at a minimum, ‘at least’ be reflected in a
prescriptive of the principles which must , at a minimum, ‘at least’ be reflected in a
tariff policy, which are not subject to the City’s discretion.
52 Bato Star above n 26.
53 Act 18 of 1998.
54 Bato Star above n 26 para 35.
[126] The charges imposed are directed at the provision of services in respect of city-
wide cleaning, water and sewerage. They do not accord with the section 74(2)
principle that they are consumption-based, with users billed according to the extent of
their use of the services in question. Instead, the charges are fixed amounts determined
from a schedule of property value bands created by the City, in respect of which VAT
is levied. Users of services are therefore not treated equitably in the application of the
charges in that services are not generally paid be in proportion to their use of that
service. It follows that t he City has not adhered to the principles set out in section
74(2), the importance of which was emphasised in Capricorn.55 For all of these
reasons, the charges are unlawful insofar as they do not comply with section 74 of the
Systems Act.
[127] In addition, the charges deviate from the City’s Water Services Development
Plan, developed in accordance with section 10(4) of the Water Services Act, which
does not provide for water tariffs determined on the basis of property value and
requires both fixed and volume-based charges to be reflective of cost. The charges are
also contrary to the aforementioned Regulations 4(1) and 4(2), which do not permit
differentiation on the basis of property value. The suggestion by the City that the
Water Services Act exists outside the scope of the suite of local government
legislation as conceptualised by Chapter 7 of the Constitution lacks merit and cannot
be sustained when the powers of local government are subject to all law.
[128] Furthermore, the city-wide cleaning charge, in addition to failing to comply
with section 74(2) of the Systems Act , also stands in contrast to and does not comply
with Chapter 4 of the Tariff Policy, which provides that City -wide cleaning is
embedded in the ‘polluter pays’ principle. This is so because the charge is directed at
embedded in the ‘polluter pays’ principle. This is so because the charge is directed at
funding City-wide services and is not measured on the basis of individual usage or
payment by an individual polluter.
[129] The City contends that neither applicant challenges the lawfulness or
rationality of the City’s Tariff Policy, and having not done so, the issue is not before
55 Capricorn above n 15 para 11.
this Court for determination. The Good Party, however, in its intervening application,
seeks a declaration that the ‘tariffs’ as included in the City’s budget and Tariff Policy
for 2025/26 be declared unlawful, unconstitutional, and invalid. It is, therefore,
permissible in our view to determine the lawfulness of parts of the policy, while the
rest of the document remains intact.
[130] Having regard to the Tariff Policy, we find that t he city-wide cleaning charge
does not comply with the definition of a fixed basic charge in Chapter 2 of such
Policy, which is defined as a ‘charge/fee recurring on a monthly basis as payment to
the right of service provision/access to the network’.
[131] For all of these reasons, we find the imposition of the three charges to be
unlawful and invalid in that they do not amount to a lawful charge for a service
provided in terms of sections 74 of the Systems Act . In addition, the charges imposed
in respect of water and sewerage deviate from the City’s Water Services Development
Plan and the city-wide cleaning charge deviates from the Tariff Policy. We find that
the City’s imposition of the charges has resulted in it unlawfully assuming a power
not granted to it by the Constitution or legislation. The exercise of this power and the
imposition of the charges are consequently unlawful and invalid.
[132] It is not the task of this Court to consider what the least expensive method
would be to fund the provision of the services in question. It is equally unnecessary to
address the other challenges mounted against the imposition of the three charges,
including whether they constitute a violation of section 25 or whether their imposition
is irrational or arbitrary.
[133] We accept that the City is under a constitutional obligation to expand
infrastructural development and ensure the delivery of services across the city, in
order to progressively improve the socio -economic conditions of all its resident s.
order to progressively improve the socio -economic conditions of all its resident s.
However, it must do so in a manner that accords with the law. As noted, rates may be
used to achieve its obligations , while tariff policies may, under section 74 of the
Systems Act, subsidise poor households and cross -subsidise the provision of services
from other sources. In addition, in the implementation and enforcement of a tariff
policy, a municipality may, in terms of section 75(2), differentiate between different
categories of users, debtors, service providers, services, service standards and
geographical areas as long as such differentiation does not amount to unfair
discrimination.
[134] We accept that the City must make provision to cover the costs reasonably
associated with the provision of municipal service s, including capital, operating ,
maintenance, administration and replacement costs, to facilitate not only the
sustainability of such services but also their expansion and improvement . We are ,
however, not persuaded that funding structures permitted by existing legislation,
which allow for charges to be levied against ratepayers on the basis of the extent of
services consumed, impede the City from fulfilling its constitutional obligations.
City’s conditional counter-applications
[135] The essence of the City’s conditional counter-applications is that section 75A,
read with section 74(2) of the Systems Act, are unconstitutional and invalid . In its
conditional counter-application to the AfriForum matter, the City seeks a further order
that sections 10 and 17 of the Water Services Act be declared inconsistent with the
Constitution insofar as they unduly curtail the powers of the City to impose the
charges in question.
[136] There are a number of difficulties with the City’s conditional counter -
applications. As the Minister correctly stated , a collateral challenge must be brought
by the right person, in the appropriate proceedings, at the right time, with all relevant
evidence.56 Neither SAPOA nor AfriForum invoke section 75A as the basis for the
charges’ invalidity. We are consequently not satisfied that the City meets the
requirements for a collateral challenge , as the remedy is not the right one sought by
the right person at the right time in the right proceedings. 57 There appears to be no
logical connection between the counter -applications and the relief sought by the
logical connection between the counter -applications and the relief sought by the
56 Merafong above n 29.
57 As stated in Oudekraal above n 23 para 35.
applicants. Even so, the merits of the counter-applications are nevertheless considered
below.
[137] Section 75A(1)(a) permits a municipality to ‘levy and recover fees, charges or
tariffs in respect of any function or service of the municipality ’. The City seeks that ,
pending remedial legislation, it be read into section 75A that this includes fixed tariffs
determined by reference to property value bands.
[138] Section 75A does not limit the City’s right to charge fees for services. In fact,
section 4(1)(a) of the Systems Act expressly provides that a municipality may charge
fees for services, surcharges on fees, rates on property and, to the extent authorised by
national legislation, other taxes, levies and duties. What is required is that in order to
do so, in terms of s ection 74(1) , a municipal council ‘must adopt and implement a
tariff policy on the levying of fees ’, which ‘must reflect at least’ the principles set out
in section 74(2).
[139] This does not impede the City’s obligation to realise fundamental rights to
water, sanitation and a safe and healthy environment or its powers and duties as
enunciated by sections 152(1)(b), 153 and 156(1) of the Constitution. Rather , it
permits the City to charge fees for services subject to appropriate legislative control.
Such control ensures a balance between the right of a municipality to charge for
services and the interests of the community to receive services on a fair, equitable and
affordable basis.
[140] It is important that this is so. As we have demonstrated, a municipality does not
have an unconstrained power to charge fees for services at its own discretion. The
exercise of such fiscal power is subject to important constitutional and legislative
constraints.58 This ensures that the exercise of such power is not unlimited or
unconstrained but is subject to law, which requires a careful balanc ing of the
municipality’s obligation to provide services with the rights and duties of its residents
municipality’s obligation to provide services with the rights and duties of its residents
and ratepayers. Nothing in section 75A, or section s 10 and 17 of the Water Services
58 Govan Mbeki above n 25 paras 45-51.
Act, violates the Constitution. Accordingly, t he City’s conditional counter -
applications, seeking in the first instance that section 75A of the Systems Act, and in
the other that section 75, section 75A of the Systems Act and sections 10 and 17 of the
Water Act, be declared invalid, are both without merit.
Remedy
[141] Determining what constitutes appropriate relief, as was stated i n Fose v
Minister of Safety and Security ,59 requires a careful consideration of ‘the interests of
both the complainant and society as a whole ought, as far as possible, to be served ’,60
balancing the various interests that might be affected by the remedy imposed.61
[142] Section 172(1)( b) confers wide remedial powers on a competent court
adjudicating a constitutional matter. Such remedial power s are not only available
when a court makes an order of constitutional invalidity of a law or conduct under
section 172(1)(a).62 It is an ‘ample and flexible remedial jurisdiction in constitutional
disputes’, o ne which permits a court to forge an order that would place substance
above mere form.
[143] Both applicants seek that the three charges be declared inconsistent with the
Constitution. SAPOA seeks that the charges be set aside with retrospective effect, in
line with Ekapa Minerals (Pty) Ltd and Another v Sol Plaatje Local Municipality and
Others,63 but that the order of invalidity be suspended for two months to allow the
City to remedy the defects identified. AfriForum seeks that the order of this Court
operate prospectively. The City contends that a just and equitable remedy would be to
59 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) para
38
60Id para 96.
61 Hoffmann v South African Airways [2000] ZACC 17; 2000 (11) BCLR 1235 (CC); [2000] 12 BLLR 1365
(CC); (2000) 21 ILJ 2357 (CC); 2001 (1) SA 1 (CC).
62 The Court in Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo
and Another 2010 (2) SA 415 (CC) referred to Thint (Pty) Ltd v National Director of Public Prosecutions and
Others; Zuma and Another v National Director of Public Prosecutions and Others [2008] ZACC 14; 2008 (2)
SACR 421 (CC); 2008 (12) BCLR 1197 (CC). In Sibiya and Others v Director of Public Prosecutions,
Johannesburg High Court, and Others [2005] ZACC 16; 2005 (5) SA 315 (CC); 2006 (2) BCLR 293 (CC).
63 Ekapa Minerals (Pty) Ltd and Another v Sol Plaatje Local Municipality and Others (Ekapa) [2025] ZACC 1;
2025 (5) BCLR 505 (CC) para 65.
suspend the declaration of invalidity with a sufficient period granted to it to address
budgetary shortfalls resulting from the order.
[144] Having found the charges to be unlawful and invalid , we consider it just and
equitable to order the suspension of the charges with effect from 30 June 2026. This
will grant the City an appropriate opportunity to determine whether it requires the
services to which the charges pertain to be funded from other sources of revenue, or to
comply with the provisions of the law.
Costs
[145] Given the success the applicants have enjoyed in their respective applications,
we see no reason why they should not be entitled to their costs, including those of two
counsel. The complexity of the case warrants granting of costs on scale C. The same
applies in relation to the applicants’ opposition to the City’s counter-application.
[146] The Minister submits that he would not have asked for costs had it not been for
the City’s attitude against him in these proceedings. While the City does not seek
costs against SAPOA and AfriForum in the counter-applications, it does so against the
Minister. While we understand the Minister’s surprise at the City’s attitude, we are not
convinced that it is sufficient reason to depart from the usual consideration adopted by
the courts that courts should be slow in granting costs between two organs of state, as
both their funding is sourced from the same public purse.64 We consider it appropriate
that the Minister, for this reason, bear his own costs.
[147] The Good Party initially sought to be joined as amicus curiae in these
proceedings. The City opposed that application. It then decided to apply to be joined
as an intervening party to the proceedings. While the City abides the intervening
application, the joinder of the Good Party has cost implications. Having been granted
leave to intervene and having been joined as a party to the SAPOA application, we are
of the view that the Good Party is entitled to its costs.
of the view that the Good Party is entitled to its costs.
64 Minister of Police and Others v Premier of the Western Cape and Others [2013] ZACC 33; 2013 (12) BLCR
1365 (CC); 2014 (1) SA 1 (CC) paras 64 and 72.
Order
[148] The following order is accordingly made:
1. The Good Party is granted leave to intervene and is joined as a party in
case number 103018/2025.
2. The late filing of the opposing affidavit of the seventh respondent, the
Minister of Cooperative Governance and Traditional Affairs, in case
number 139023/2025 is condoned.
3. It is declared that the charges imposed on ratepayers by the City of Cape
Town (the City), as respondent in case number 103018/2025 and first
respondent in case number 139023/2025 , in its 2025/2026 budget in
respect of city-wide cleaning, water and sewerage , are unlawful and
invalid insofar as they are inconsistent with the Constitution, national
legislation and the City’s Tariff By-law. Such charges are set aside with
effect from 30 June 2026.
4. The City’s counter-applications are dismissed.
5. The City is to pay the costs of:
5.1 the applicants in case numbers 103018/2025 and 139023/2025,
including those of two counsel on scale C;
5.2 the applicants in opposing the City’s counter -applications, also
including those of two counsel on scale C; and
5.3 the Good Party in case number 103018/2025 , also including
those of two counsel on scale C.
_________________________
NP MABINDLA-BOQWANA
Judge President
_________________________
A LE GRANGE
Judge of the High Court
_________________________
KM SAVAGE
Judge of the High Court
Appearances:
For SAPOA: HJ De Waal SC (heads of argument)
J P Steenkamp with D Van Reenen
Instructed by: GVS Law, Cape Town
For the Good Party: M De Beer with L Farmer
Instructed by: Lionel Murray Schwormstedt & Louw,
Cape Town
For AfriForum: E Botha SC with P Eilers
Instructed by: Hunter Spies, Cape Town
City of Cape Town: N Bawa SC with K Pillay SC and N de Jager
Instructed by: Timothy and Timothy Attorneys, Cape
Town
Minister of Cooperative Governance
and Traditional Affairs: M Edmunds SC with Adv A Nacerodien
Instructed by: State Attorney, Cape Town
First amicus curiae: M De Beer with L Farmer
Cape Town Collective Ratepayers’
Association
Instructed by: Lionel Murray Schwormstedt & Louw,
Cape Town
Second amicus curiae: A Cockrell SC (heads of argument)
V Seymour
SA First Forum
Instructed by: Lionel Carr Attorneys, Cape Town