THE Gauteng High Court, Johannesburg, has turned down an application by the City of Johannesburg following the court’s earlier declaration that the municipality’s rates policy is unlawful and constitutionally invalid to the extent that it regulated the categorisation and rating of educational properties.
The ruling issued by the court earlier this year follows the city’s removal of a property category that applied to educational institutions, and adopted a property rates by-law and policy that categorised private schools as public enterprises.
This led to a drastic increase in property rates and taxes for private schools and other educational institutions.
Various stakeholders, including Curro Holdings, the Independent Schools Association of South Africa, and AfriForum, launched the application following the drastic school rate increase.
The court found that the city’s public participation process in adopting the 2023/2024 property rates policy was inadequate and did not meet constitutional and statutory requirements.
It further found that the metro failed to meaningfully consult with stakeholders, including independent schools, ignored the best interests of scholars, and thereby violated the Constitution.
Aggrieved by this ruling, the city now asked the court for leave to appeal against it.
The city argued that this court erred on the facts and the law in its findings. It especially disagreed with the finding in which the court held that the city’s public participation process, which led to the adoption of the city’s 2023/2024 rates policy, rates by-law, and the city’s budget to the inclusion of educational property under the “Business and Commercial” category, was a “sham”.
Judge Phaneul Mudau, in the application for leave to appeal, remarked that his court had the benefit of reviewing the full record of the city’s consultation process (or lack thereof) and made specific findings on how and why it fell short.
This court noted, by way of example, that the city’s response to public submissions does not engage at all with submissions made by members of the public.
The city, in this instance, failed to identify any misdirection by this court, nor any material factual evidence that was overlooked, the judge said.
He added that it is, therefore, unlikely that another court would have a different view of the city’s inadequacies regarding the public participation process embarked upon.
“As Curro correctly pointed out, the city’s disagreement with this court’s factual appraisal of the consultation process does not translate into a bona fide prospect of success on appeal,” the judge said.
The city also argued that the court erred in finding that “the city failed to consider the best interests of the children that attend independent schools when it decided to re-categorise private educational properties”.
But, Judge Mudau said, this criticism is without any foundation. He said the city failed to consider the best interests of the child in its decision to unlawfully categorise independent schools as “business and commercial” properties without adequate prior consultation with the relevant stakeholders.
He pointed out that the Constitution requires that a child’s best interests are of paramount importance in every matter concerning the child. “This provision applies to all organs of state, including municipalities.”
The judge added that the affected learners include many from low- and middle-income households, especially in Johannesburg’s inner-city and township areas, who attend independent schools.
“The facts clearly established that the city’s decision had a direct and foreseeable impact on children and their access to education. Accordingly, the interests of affected learners were at stake. Yet the city’s answering affidavit failed to engage with these concerns,” the judge said in turning down the application for leave to appeal.
zelda.venter@inl.co.za
