Court declares Joburg's non-sectional title refuse charge tariff unlawful
The High Court in Johannesburg has found that the City of Johannesburg (CoJ) acted unlawfully in imposing a non-sectional title refuse charge tariff on certain residential accommodation buildings that were already paying a refuse charge tariff.
A judgment handed down by Judge Mandlenkosi Motha on 21 July 2025, declared the classification of 'non-sectional title properties,' in CoJ's Tariff of Charges for Solid Waste Services for the years 2018 to 2022, unlawful and inconsistent with existing regulation.
There were 42 applicants in total, 41 of which were companies owning a collective 7 333 multi-unit residential accommodation units within the city. These included Indluplace Properties, the Johannesburg Housing Company and Sirius Property Investments.
The remaining applicant was the Johannesburg Property Owners and Managers Association, a non-profit organisation established to represent the interests of property owners and managers in the city.
Judge Motha said this matter originated in CoJ's reclassification 'of multi-unit residential rental accommodation, from the refuse charge tariff to the non-sectional title refuse tariff'. Essentially, he said the matter concerns the lawfulness of CoJ imposing a non-sectional title tariff on buildings that were paying a refuse charge tariff.
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Applicant's argument
The applicants sought an order declaring the classification of non-sectional title properties – as contained in the CoJ's Tariff of Charges for Solid Waste Services for the years 2018 to 2022 – unlawful and inconsistent with the Local Government Municipal Systems Act (MSA) of 2000, read with CoJ's Tariff Determination By-laws of 2008, and set it aside.
The applicants argued that, as stipulated in the MSA, it is the municipality's policies and by-laws that dictate how its tariff-setting powers must be exercised.
They further stated that, in terms of this Act, a municipality must adopt and implement a tariff policy on the levying of fees for municipal services – whether provided directly by the municipality or through service delivery agreements – and that this policy must comply with the provisions of the MSA, the Municipal Finance Management Act, and any other applicable legislation.
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The city's counter-argument
The CoJ argued that the reclassification was not unlawful, as the tariff determination scheme arises from relevant enabling legislation. It maintained that non-sectional title units should be subject to municipal levies in the same manner as sectional title units.
The city further claimed that regarding the policy or by-laws, the reference to non-sectional titles would not be 'a fundamentally wrong way of interpreting the MSA'. It added that 'the remit of the empowering provision of Section 75(2) of the Act is wide enough to permit 'the COJ to impose or extend the non-sectional title tariff to flats in buildings owned by the applicants'.'
Judge Motha said the court referred the CoJ's counsel to the detailed differentiations and distinctions in the Tariff Determination By-laws, particularly that the council may allow for the following categorisation of users: 'residential or domestic; commercial; industrial; farming; government; and state-owned enterprises.'
In response to CoJ's counsel arguing that it wasn't necessary for the by-laws to explicitly mention the term 'non-sectional title,' Judge Motha posed a rhetorical question: what is the function of by-laws if not to delineate users?
Judge Motha referred to two previous judgments, which ruled that local government may only act within the powers lawfully conferred upon it. Further, it's fundamental to South Africa's constitutional order that the legislature and executive in every sphere is bound by the principle that they may exercise no power and perform no function beyond that granted to them by law.
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He said two issues stand out 'like a sore thumb' in this case when properly examining the Tariff Determination Policy, which is created under the MSA.
Firstly, 'there is no differentiation called 'sectional title' and 'non-sectional title' properties,' and secondly, to enforce and implement the tariff policy, by-laws 'must' be adopted.
'The creation of a distinction between sectional and non-sectional title properties introduces a category that finds no basis in the empowering provision.
'It, therefore, ineluctably follows that the respondents (CoJ) acted ultra vires in purporting to create a non-sectional title distinction,' he said.
Judge Motha added that Chapter 5 of the Tariff Determination Policy defines various types of tariffs for waste and refuse removal.
It provides for a 'domestic tariff' that applies to private dwellings per erf, blocks of flats and elderly people's homes, as well as a 'non-domestic tariff' and a 'business refuse' tariff.
However, Judge Motha stressed, 'it makes no distinction between sectional title and non-sectional title properties'.
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Judge Motha said that to merely contend, as the CoJ does, that Section 75(2) of the MSA is sufficiently broad to permit a distinction between sectional and non-sectional title properties 'is to overlook the pivotal role of a tariff policy and by-laws'.
'Without a tariff policy and by-laws, the imposition of tariffs is left without a rational legal framework and becomes susceptible to challenges on the grounds of unfair discrimination and irrationality.
'For example, sectional title owners whose flats are less than R350 000 do not pay any refuse levies. What is the rationale for charging non-title property owners for units that could be worth less than R350 000?' he asked.
Costs were awarded against CoJ.
This article was republished from Moneyweb. Read the original here.
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