Latest news with #LocalGovernmentMunicipalSystemsAct
The Citizen
01-08-2025
- Business
- The Citizen
Court declares Joburg's non-sectional title refuse charge tariff unlawful
A high court judgment ruled that CoJ's reclassification of non-sectional title properties was inconsistent with legislation and by-laws. 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. ALSO READ: Pikitup fleet woes cause waste collection delays in Johannesburg 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. ALSO READ: Tshwane cleaning tariff may be challenged in court 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. ALSO READ: These Gauteng municipalities are lagging behind with their refuse collection bills 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'. ALSO READ: Gauteng's waste collection woes: R1 billion needed for landfills, R60 million for fleets 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.
The Citizen
20-05-2025
- Business
- The Citizen
Proposed cleaning levy sparks legal challenge in Tshwane
AfriForum is challenging Tshwane's proposed R200 city cleaning levy, calling it unconstitutional and unfair. Tshwane Deputy Mayor Eugene Modise poses for a photograph at Tshwane House, 20 November 2024, following an interview with The Citizen. Picture: Michel Bega/The Citizen AfriForum has started legal action against the City of Tshwane to obtain clarification on the implementation of the proposed environmental, or city cleaning levy announced in the budget speech. Last week, the deputy mayor, MMC of finance Eugene Modise, announced the city's plans to implement the levy of approximately R200 per month from 1 July for all properties without a municipal waste account. AfriForum's local government affairs advisor Deidré Steffens said they submitted a request to obtain clarification on the city's plans regarding the levy in April, but received no reply. AfriForum submit to request clarification on levy plan 'On 24 April, AfriForum submitted its comments on the city's draft medium-term revenue and expenditure framework (MTREF) in which the levy was announced. 'Our legal team has made it clear that the draft MTREF containing details of the proposed levy contains material contradictions and gives excessive discretionary power to the municipal manager in the application of the levy. This creates unacceptable scope for abuse and arbitrary application,' she said. ALSO READ: Tshwane's R54.6bn budget draws mixed reactions According to Steffens, the implementation of the proposed levy would be contrary to Section 74(2) of the Local Government Municipal Systems Act, which requires that tariffs reflect the actual use of services and be applied fairly. Steffens said although the constitution required municipalities to promote the social and economic development of communities in their budgeting processes, this was not the case with the implementation of the levy. 'A non-revenue-generating service, such as a cleansing levy, is traditionally financed by property rates and if the city were to proceed with the proposed implementation of this levy, it would amount to double taxation. Cleansing levy traditionally financed by property rates 'It is unacceptable that a service that should be funded by property taxes is now being repackaged as a new levy, presumably to cover the metro's budget deficits. 'This is a blatant attempt to milk more revenue from already overtaxed residents,' she said. ALSO READ: Millions needed to fix Tshwane sinkholes AfriForum was prepared to approach the court if the city failed to provide the information by the deadline, Steffens said. Republican Conference of Tshwane councillor Lex Middelberg said the levy was a reintroduction of a similar city cleaning levy that was introduced in the 2017-8 MTREF but then abandoned. 'This cleaning levy is unconstitutional. The city conceded this and abandoned the cleaning levy in later MTREFs after the issue was raised by the Tshwane Money Matters Caucus in November 2017 with your predecessor in office at the time, with the minister of finance, the AGSA and the MEC for local government,' he said. Not a tariff for services rendered Middelberg said the cleaning levy was not a tariff for services rendered, but by its own definition an arbitrary tax raised on persons who do not consume the service. 'The cleaning levy is not raised to render a service, but to bulk up the city's coffers with additional revenue to be applied for other purposes than to clean the city,' he said. ALSO READ: Tshwane mayor faces outrage for Weskoppies Hospital power cut Tshwane's DA spokesperson for finance Jacqui Uys said they were also against the levies. Uys said the current waste collection in the city could cost residents up to 10% of their salaries. 'Instead of assisting poor households who cannot afford almost R500 per month for waste removal, the ANC-led City of Tshwane has opted to introduce a punitive tax of almost R200 on these households if they choose not to use the city's services,' she said. DA raises concerns 'The DA has also raised concerns about the newly introduced waste levy in the draft budget.' Uys said the intention of the new levy was not to ensure a cleaner city, but rather the introduction of yet another tax to use the residents of Tshwane as a stopgap to improve the city's financial position. NOW READ: Tshwane mayor under fire for downplaying pothole crisis
