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[2012] ZASCA 177
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Emalahleni Local Municipality and Another v Propark Association and Another (089/2012) [2012] ZASCA 177; [2013] 1 All SA 277 (SCA) (29 November 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 089/2012
In the matter between: Reportable
EMALAHLENI LOCAL MUNICIPALITY
....................................
FIRST
APPELLANT
WITBANK MUSLIM JAMAAT
..............................................
SECOND APPELLANT
and
PROPARK ASSOCIATION
....................................................
FIRST
RESPONDENT
THE REGISTRAR OF DEEDS
..........................................
SECOND
RESPONDENT
Neutral citation:
Emalahleni Local
Municipality & another v Propark Association & another
(089/12)
[2012] ZASCA 177
(28 November 2012)
Coram
: NUGENT, CACHALIA, LEACH, and PETSE JJA and
SOUTHWOOD AJA
Heard: 2 NOVEMBER 2012
Delivered: 28 NOVEMBER 2012
Summary: Constitutional law – review in terms
of
Promotion of Administrative Justice Act 3 of 2000
– whether
the first appellant complied with s 79(18) of the Local Government
Ordinance 17 of 1939 (Transvaal) and
s 14
of the
Local Government:
Municipal Finance Management Act 56 of 2003
before it alienated a
public open space (a park) to the second appellant and whether the
first appellant complied with
s 68
read with s 67 of the Ordinance
before it decided to close the public open space permanently.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court,
Pretoria (Tolmay J sitting as court of first instance):
1. The order of the court a quo reviewing and setting
aside the first appellant’s resolution of 25 October 2007, to
invite
tenders for the alienation and development of the public open
space is set aside;
2. The order of the court a quo reviewing and setting
aside the first appellant’s resolution of 31 January 2008, to
accept
the second appellant’s tender for the alienation and
development of the public open space is set aside; and
3. The order declaring the deed of sale between the
first and second appellants dated 8 February 2008 (for the purchase
of the property)
ab initio
invalid is set aside;
4. Save as above, the appeal is dismissed. The first
respondent is ordered to pay the first and second appellants’
costs of
appeal, including, in the case of the second appellant, the
costs of two counsel.
______________________________________________________________
JUDGMENT
______________________________________________________________
SOUTHWOOD AJA (NUGENT, CACHALIA, LEACH and PETSE JJA
CONCURRING):
[1] The issue in this appeal is whether the Emalahleni
Local Municipality (first appellant) complied with the relevant
provisions
of the Transvaal Local Government Ordinance 17 of 1939
(LGO) and the Local Government : Municipal Finance Management Act 56
of
2003 (MFMA) before it sold or alienated a portion of Stand 2243
Witbank Extension 10 (the property) to the Witbank Muslim Jamaat
(second appellant) and decided to close the property permanently.
[2] In an application for review in terms of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) in the North
Gauteng High
Court, Pretoria, Propark Association (referred to herein
as the respondent as the second respondent played no part in the
proceeding)
obtained orders –
(a) Reviewing and setting aside the first appellant’s
resolutions –
(i) of 25 October 2007, to invite tenders for the
alienation and development of the property;
(ii) of 31 January 2008, to accept the second
appellant’s tender for R1 076 000 for the alienation and
development of the
property; and
(iii) of 25 November 2008, to permanently close the
property;
(b) Declaring the deed of sale between the appellants
dated 8 February 2008 (for the purchase of the property)
ab initio
invalid; and
(c) Ordering the appellants to restore the
status
quo ante
in respect of the property.
The appellants appeal against all these orders with the
leave of the court a quo. The appellants persist with their
contentions
that the respondent does not have
locus standi
and
that there was an unreasonable delay before the respondent brought
its application for review. Lawyers for Human Rights (LHR),
which was
granted leave to intervene as an
amicus curiae,
filed heads of
argument and sought leave to file an affidavit in support of its
contentions at the hearing of the appeal.
[3] With regard to the sale and alienation of the
property, the respondent’s case in its founding affidavit was
that the first
appellant had decided to sell, and had in fact sold
and transferred, the property to the second appellant before the
first appellant
had complied with the provisions of s 79(18) of the
LGO and s 14 of the MFMA. The first appellant contended that it was
not obliged
to comply with s 79(18) of the LGO (it admitted in its
answering affidavit that it had not done so before entering into the
deed
of sale or alienating the property) and that it was only obliged
to comply with s 14 of the MFMA, which it had done. With regard
to
the closing of the property the respondent’s case in the
founding affidavit was that the first appellant was obliged to
comply
with s 68 read with s 67 of the LGO before it could decide to
permanently close the property and that the first appellant
had
failed to do so. The first appellant contended that it had complied
or substantially complied with these provisions.
[4] Witbank Extension 10 is an established residential
township in Emalahleni. Before it was subdivided and the property was
transferred
to the second appellant, Stand 2243 was 10 385m² in
extent and was zoned ‘Public Open Space’ (Primary uses:
parks,
public sport and recreation grounds, public open space,
gardens, play parks). In terms of s 63 of the LGO the council of the
first
appellant was obliged to manage and control the stand which was
vested in the council ‘in trust to keep the same open (save
as
is otherwise provided in this Ordinance or any by-law), and in repair
so far as the finances of the council will permit, for
the use and
the benefit of the inhabitants’.
[5] The salient facts are as follows: During 2006 and
2007 the second appellant lobbied the national Minister of Public
Works to
allocate or identify a site in Emalahleni that the second
appellant could acquire for the purpose of erecting a mosque. The
second
appellant also approached the Mayor of Emalahleni with a
similar request. The first appellant receives many such requests from
religious organisations of different denominations.
[6] The first appellant’s municipal manager then
instructed Mr Eric Parker, the Director: Development Planning, to
identify
potential sites suitable for ‘church sites’. Mr
Parker identified seven such sites including erf 2243 Witbank
Extension
10. On 2 February 2007 he prepared a memorandum in which he
identified the sites. (The first appellant’s deponent alleges
that the municipal manager instructed Mr Parker to identify sites
that were not needed by the first appellant to provide a minimum
level of basic municipal services – a requirement of s 14(2) of
the MFMA – which Mr Parker confirms. However, it is
noteworthy
that in his memorandum Mr Parker did not refer to such an instruction
or state that the sites identified are such sites
and no document has
been annexed to the answering affidavit in support of these
allegations. In the absence of such evidence the
bald allegations
cannot be accepted).
[7] The first appellant informed the second appellant of
the properties identified as potential ‘church sites’.
After
inspecting the sites the second appellant, on 10 May 2007,
addressed a letter to the municipal manager to inform him that it
regarded
the property as the most suitable for its needs and
indicated that it wished to acquire the property.
[8] The second appellant’s application to purchase
the property was considered by the first appellant’s Section 79
Committee
on 3 October 2007 and by the Mayoral Committee on 16
October 2007. The latter committee was advised that it would be
advisable
to obtain tenders for the alienation and development of
Stand 2243 Witbank Extension 10 and that tenderers should be made
aware
of the fact that the property would have to be subdivided,
rezoned and closed and that an exemption would have to be obtained in
respect of an environmental impact assessment, all at the developer’s
expense.
[9] On 25 October 2007 the first appellant’s
council resolved to invite tenders for development proposals for the
alienation
and development of the property for the purposes of a
church and ancillary uses ‘subject to’ a number of
conditions.
These included the rezoning and sub-division of the stand
and the closure of the property. The stated purpose of the resolution
was to enable the council to consider the alienation of Stand 2243 to
the second appellant and it pertinently referred to three
other
applications to acquire the property, none of which was from a
religious organisation. The report incorporated the Chief
Financial
Officer’s comments that public participation must be completed
before the council took a resolution and that the
alienation of land
must take place in terms of section 14(1) of the MFMA. The report
recommended that the stand be alienated by
a competitive bidding
process in accordance with the MFMA.
[10] On 29 November 2007 the first appellant instructed
a valuer to provide a valuation for the property when zoned
‘Institutional’
(for the purpose of a church). On 8
January 2008 the valuer provided a valuation in the sum of R570 000.
[11] On 30 November 2007 and 7 December 2007 the first
appellant published in the Witbank News invitations to submit
development
proposals for the alienation and development of the
property, which would be subject to the conditions in the bid
documentation.
The invitation was also attached to the first
appellant’s notice boards.
[12] The first appellant received two proposals: one
from Shalom Ministries for the sum of R399 000 (including VAT) and
the other
from the second appellant in the sum of R1 140 896.04
(including VAT). The first appellant’s Bid Evaluation Committee
evaluated
the two proposals and recommended that the second
appellant’s proposal be accepted subject to a number of
conditions. The
Bid Evaluation Committee’s report records that
the development of the property for the purpose of creating a church
was approved
by the council on 16 October 2007 and that the council
resolved that proposals should be invited for the alienation and
development
of the property subject to sixteen conditions.
[13] On 31 January 2008 the first appellant’s Bid
Adjudication Committee accepted the Bid Evaluation Committee’s
recommendation
with a minor amendment.
[14] The municipal manager accepted the two committees’
recommendations and, on 5 February 2008, the municipal manager
notified
the second appellant that its proposal had been accepted
subject to fourteen conditions; requested the second appellant to
indicate
whether these conditions were acceptable and informed the
second appellant that as soon as it received such indication the
council
would commence with the permanent closing of the property.
[15] On 8 February 2008 the appellants signed the deed
of sale prepared by the first appellant’s attorneys. The
agreement
recorded that the first appellant sold the property to the
second appellant ‘subject to the conditions, limitations and
servitudes
(if any) referred to in the existing Title Deed to the
property, compliance with: The
Local Government: Municipal Finance
Management Act No 56 of 2003
, any other Acts, ordinance by law or
regulations as may be applicable to the sale, and subject to the
following conditions and
terms as set out in this agreement and as
incorporated in terms of the inner procedure as undertaken by
Emalahleni Local Municipal
Council’. (It is common cause that
the agreement was subject to suspensive conditions,
inter alia
,
that there must be compliance with the relevant provisions of the LGO
and the MFMA; that the second appellant have the property
rezoned
from ‘Public open space’ to ‘Institutional’;
that the second appellant have stand 2243 subdivided
so that
approximately 1000m² would be retained as public open space;
that the first appellant permanently close the property
in accordance
with
s 68
of the LGO and that the second appellant obtain
authorization to undertake a listed activity in terms of s 22 of the
Environment
Conservation Act 73 of 1989.).
[16] On 28 March 2008, purporting to act in terms of s
67 of the LGO and s 21(1)
(a)
of the Local Government:
Municipal Systems Act 32 of 2000 (the Systems Act), the first
appellant gave notice in the Provincial
Gazette and the Witbank News
that the first appellant intended to permanently close erf 2243
Emalahleni Extension 10 and indicated
where the relevant plan could
be inspected and when and where objections and recommendations could
be lodged. Another notice was
also placed at the property for two
weeks.
[17] Propark’s members, who were ignorant of the
fact that the first and second appellants had already entered into
the sale
agreement, lodged objections to the closure of the public
open space. Some of them also objected to the alienation of the
property.
The first appellant’s Mayoral Committee considered
these objections and made recommendations to the council. On 26 June
2008
the council resolved that –
The objections to the permanent closure and alienation
of a Portion of Public Open Space, erf 2243, Emalahleni Extension
10, were
noted;
The objections to the alienation of erf 2243,
Emalahleni Extension 10 were rejected based on the reasons in the
report of the
Director: Development Planning; and
A hearing of the council’s Land Use Committee
must be arranged in terms of the provisions of the MFMA and the
Supply Chain
Management Regulations to consider the objections
received against the permanent closure of a Portion of Public Open
Space, erf
2243, Emalahleni Extension 10.
The council did not accept the recommendation of the
Mayoral Committee that a hearing by an independent person be arranged
in terms
of the MFMA to consider the objections to the alienation of
the property. It simply noted, and then rejected, the objections to
the alienation despite the fact that the objections were not lodged
in accordance with any procedure prescribed by the LGO or the
MFMA.
[18] On 31 July 2008 the first appellant notified the
objectors that in terms of s 67 of the LGO and s 62 of the Systems
Act the
hearing to consider the objections to the permanent closure
of the property would take place on 19 August 2008.
[19] On 19 August 2008, at the hearing of the first
appellant’s Land Use Committee to consider objections to the
permanent
closure of the property, the committee resolved that ‘more
information was needed to take a resolution and that a further
investigation be conducted with regard to the processes which were
followed’. At the hearing the objectors pointed out that
the
procedures prescribed by ss 68 and 67 of the LGO had not been
complied with.
[20] On 25 November 2008, the Land Use Committee met
again to consider a further report of the Director: Development
Planning. The
committee approved the permanent closure of the
property. It did not uphold the objections to the closure
inter
alia
because ‘the public participation process as
prescribed by ss 67 and 68 of the Local Government Ordinance, 1939,
was substantially
complied with and afforded the public sufficient
opportunity to lodge objection’. (The first appellant’s
deponent simply
refers to the resolution. He sets out no facts to
show that there was substantial compliance with ss 68 and 67 of the
LGO. On the
strength of the resolution he alleges that the procedure
prescribed by ss 68 and 67 was complied with, alternatively,
substantially
complied with. This is clearly not correct as the first
appellant did not give notice of the first appellant’s
intention
to permanently close the property to any of the owners of
the abutting properties and there is no evidence to show how the
notice
was displayed on the property. It also appears that none of
the objectors was present at the meeting because no notice of the
meeting
was given.)
[21] On 9 December 2008 the first appellant informed the
respondent’s members of the resolution taken on 25 November
2008
and they were informed of their right to appeal.
[22] On 23 December 2008 the respondent’s members
lodged an appeal against the decision to close the property and, on
14 October
2009, they were informed that their appeal against the
decision had been dismissed.
[23] The respondent launched its application in March
2010.
[24] As far as the sale and alienation of the property
are concerned, it is clear that two statutory provisions were
applicable:
s 79(18) of the LGO and s 14 of the MFMA. The relevant
part of s 79(18) of the LGO reads:
’
79
General
powers
–
The
council may do all or any of the following things, namely –
(18)
(a)
…
[S]ubject to the
succeeding paragraphs and the provisions of any other law –
(i) let, sell, exchange or in
any other manner alienate or dispose of any movable or immovable
property of the council. . .
(b)
Whenever
a council wishes to exercise any of the powers conferred by paragraph
(a)
in
respect of immovable property. . . the council shall cause a notice
of the resolution to that effect to be –
(i) affixed to the public notice
board of the council; and
(ii) published in a newspaper in
accordance with section 91 of the Republic of South Africa
Constitution Act, 1983;
in which any person who wishes
to object to the exercise of such power, is called upon to lodge his
objection in writing with the
town clerk within a stated period of
not less than fourteen days from the date of the publication of the
notice in the newspaper.
. . .
(c)
Where any objection
is received by the town clerk in terms of paragraph
(b),
the
council shall not exercise the power concerned if it is –
(i) a council referred to in
Part I or II of the Sixth Schedule to this Ordinance unless the
council has considered every objection;
(d)
A council wishing to
exercise any of the powers contemplated in paragraph
(b)
shall
cause a valuer or associated valuer registered in terms of the
provisions of the Valuers’ Act, 1982 (Act 23 of 1982),
to –
(ii) evaluate the immovable
property it wishes to sell, exchange or in any other manner alienate
or dispose of. . .
(e)
A council, excluding
a council referred to in Part I or II of the Sixth Schedule to this
Ordinance shall not –
(ii) sell, alienate or dispose
of immovable property in any other manner…at a lower amount
than the amount at which it has
been evaluated,’
in accordance with paragraph
(d). . . .
’
[25] In
Diggers
Development (Pty) Ltd v City of Matlosana & another
1
this court held that the section is
‘triggered’ once the council ‘wishes’ to
exercise any power referred
to in s 79(18)
(a)
and that the council must then
publish the notices to enable persons to object. This court also held
that the word ‘wish’
means ‘a desire expressed in
words, or the expression of such’ and that, in context, the
word connotes a settled intention.
2
In
Ferndale
Crossroads Share Block (Pty) Ltd & others v Johannesburg
Metropolitan Municipality & others
3
this court held that s 79(18)(
b
)
is intended to ensure that no immovable property of a local authority
is alienated or disposed of without notice to its ratepayers,
and
without affording to interested persons the opportunity to object and
to have such objections duly considered and that ‘alienation’
and ‘disposal’ are concepts that are obviously to be
liberally construed in the public interest. The court summarised
the
effect of non-compliance thus
:
‘
The
effect of non-compliance with the provisions of section 79(18)
(b)
and
(c)
of the
ordinance, ie failure by the respondent to cause a notice of its
resolution, embodying its intention to let the area of land
described
in the agreement, to be affixed to its public notice board, and to
publish it (the resolution) in a newspaper, calling
for objections to
the proposed lease before exercising the power to let, is that the
jurisdictional fact necessary for the exercise
of the power was
absent. In terms of section 79(18)
(c)
a
council “
shall
not
exercise
the power [to let immovable property] . . . unless [it] has
considered every objection”. (My emphasis.) In the absence
of
the necessary jurisdictional fact the respondent could not validly
exercise the power, with the result that the lease element
of the
agreement was
ab
initio
invalid.’
4
[26] Neither s 79(18) nor the
Diggers
judgment
stipulate when the provisions of s 79(18)
(b)
must be complied
with after the section has been ‘triggered’ but it is
clear that this must happen between the time
the council forms a
settled intention to exercise the s 79(18)
(a)
power and the
time when it actually exercises the power. This appears from s
79(18)
(c)
which provides that the council shall not exercise
the power unless it has considered every objection (which implies
that it has
given the required notice in the prescribed manner and
received and considered the objections).
[9] The relevant part of s 14 of the MFMA reads:
‘
Disposal
of capital assets –
A municipality may not transfer
ownership as a result of a sale or other transaction or otherwise
permanently dispose of a capital
asset needed to provide a minimum
level of basic municipal services.
A municipality may transfer
ownership or otherwise dispose of a capital asset other than one
contemplated in subsection (1), but
only after the municipal
council, in a meeting open to the public–
has decided on reasonable
grounds that the asset is not needed to provide the minimum level of
basic municipal services;
has considered the fair market
value of the asset and the economic and community value to be
received in exchange for the asset.
(5) Any transfer of ownership of
a capital asset in terms of subsection (2) . . . must be fair,
equitable, transparent, competitive
and consistent with the supply
chain management policy which the municipality must have and maintain
in terms of section 111.’
Clearly, what is contemplated is that the council must
take the decision referred to in subsection (2)
(a)
and that it must be recorded in the minutes that the
council has considered, in accordance with subsection (2)
(b),
the economic and community value to be received in
exchange for the asset and that this must happen before ownership of
the capital
asset is transferred or permanently disposed of.
[27] There is no evidence that the first appellant
complied with the abovementioned provisions of s 14 of the MFMA or s
79(18) of
the LGO at any stage (the first appellant admits that it
did not comply with s 79(18)). Although the first appellant alleged
that
it complied with s 14 of the MFMA and the first appellant’s
Supply Chain Management Policy before it alienated the property,
the
first appellant’s deponent did not provide the facts for this
conclusion. There is no allegation that, at a meeting open
to the
public, the first appellant decided that the stand was not needed to
provide the minimum level of basic municipal services
and he did not
set out the reasonable grounds for such a decision. There was also no
allegation that, at a meeting open to the
public, the council
considered the economic and community value to be received in
exchange for the stand. The first appellant’s
deponent only
referred to a valuation obtained for the stand (R570 000) and the
tender price offered (R1 076 000) but said nothing
about the
‘community value’ that would be received in exchange for
the stand.
[28] The respondent’s case in
the founding affidavit, which was strenuously argued on appeal, was
that the first appellant
had to comply with these provisions before
it resolved on 25 October 2007 to invite tenders for the alienation
and development
of the property, before it resolved on 31 January
2008 to accept the second appellant’s tender, before it entered
into the
deed of sale on 8 February 2008 and before it transferred
the property to the second appellant on 18 December 2009. While the
use
of the word ‘triggered’ in the
Diggers
Development
case
seems to suggest that there must be immediate compliance with s
79(18)
(b)
before anything is done to give
effect to the settled intention to sell, the answer to this is to be
found in the interpretation
of the section referred to. There had to
have been compliance with the section before the property was sold or
alienated. In the
case of s 14 of the MFMA there had to have been
compliance before the property was transferred. None of the first
three actions
constituted the sale, transfer or alienation of the
property while the fourth act clearly did. The two resolutions were
necessary
to determine the identity of the purchaser of the property
and the price for which it would be sold, but they were simply
preparatory
acts, not the sale or the alienation of the property. As
far as the deed of sale is concerned, it was subject to suspensive
conditions
which had not yet been fulfilled: in other words there was
not yet a completed agreement of sale.
5
The orders granted in respect of
these resolutions and the deed of sale, were therefore wrongly
granted. On the other hand, the
transfer of the property (the
alienation) to the second appellant before the first appellant
complied with the relevant statutory
provisions was unlawful and the
order to restore the
status
quo ante
was
properly granted by the high court. The first appellant’s
counsel conceded this in argument and indicated that the first
appellant would comply with the relevant provisions before the deed
of sale develops into a completed contract of sale and the
property
is transferred to the second appellant. This is clearly correct and I
did not understand the second appellant’s
counsel to seriously
contend otherwise. The appeal against the orders reviewing and
setting aside the resolutions taken on 25 October
2007 and 31 January
2008 and declaring the deed of sale entered into on 8 February 2008
invalid
ab initio
must be upheld. I now turn to the
resolution to permanently close the park.
[29] Section 68 of the LGO reads:
‘
Notwithstanding
anything to the contrary contained in this Ordinance, the council may
close permanently, either in whole or in part,
any square, open
space, garden, park or other enclosed space, vested in the council
under section 63: Provided that the provisions
of section 67 shall
mutatis
mutandis
apply
to the council in the exercise of the power hereby conferred.’
[30] The relevant part of s 67 provides in respect of a
park or open space (with the necessary changes) that a council (the
first
appellant’s council is a council referred to in Part II
of the Sixth Schedule to the Ordinance) may permanently close such
park or open space, but only after the following conditions have been
complied with –
(a) the council has accepted a proposal for the closing
of the park or open space (s 67(1));
(b) the council has caused a plan to be prepared showing
the position of the boundaries of the park or open space to be closed
(s
67(2));
(c) on completion of the plan, the council has published
a notice in the Provincial Gazette and in at least one English and
one
Afrikaans newspaper, circulating in the council’s area of
jurisdiction, setting out briefly the council’s proposals,
stating that the plan is open for inspection at a place and during
the hours specified in the notice and calling upon any person
who has
any objection to the proposed closing or who will have any claim for
compensation if such closing is carried out to lodge
his objection or
claim, as the case may be, with the council in writing, not later
than the specified date which shall be at least
30 days from the date
of publication in the Provincial Gazette or newspaper in which the
notice is last published (s 67(3)
(a)
);
(d) the council has at least 30 days before the time for
lodging of objections and claims will expire –
(i) caused copies of the notice to be posted in a
conspicuous manner on or near the park or public space which it is
desired to
close and has caused such copies to remain posted as
aforesaid until the time for lodging objections and claims has
expired (s
67(3)
(b)
(i));
(ii) caused a copy of the notice to be served on the
owners or reputed owners, lessees or reputed lessees and the
occupiers of all
properties abutting upon the park or open space
which it is proposed to close: Provided that if the name and address
of any such
owner, reputed owner, lessee, reputed lessee or occupier
cannot after reasonable enquiry be ascertained a copy of the notice
need
not be served on him; Provided further that if any such property
has more than one lessee, reputed lessee or occupier a copy of
the
notice may be posted on the principal door of the main building or in
another conspicuous place on such property and need not
be served on
every such lessee, reputed lessee or occupier, except where such
property is a sectional titles property, in which
case the notice
shall also be served on the owners of the units or body corporate (s
67(3)
(b)
(ii));
(e) any person who considers that his interests will be
adversely affected by the proposed closing may at any time before the
time
for the lodging of objections and claims has expired, lodge with
the council a claim, in writing, for any loss or damage which will
be
sustained by him if the proposed closing is carried out. If such
closing is carried out, the council shall pay compensation
for the
damage or loss sustained by such person, the amount of compensation,
in default of mutual agreement, to be determined by
arbitration. In
assessing the amount of compensation the benefit or advantage derived
or to be derived by the claimant by reason
of the closing shall be
taken into account. If such person however, fails to lodge his claim
with the council during the period
during which objections and claims
may be lodged, he shall not be entitled to any compensation for any
damages or loss sustained
by him (s 67(4)
(a)
);
(f) if the council finds that the payment of
compensation will be too costly it may resolve not to proceed with
the proposed closing
(s 67(4)
(b)
);
(g) after the date specified for the lodging of
objections and claims the council has considered every objection
lodged and decided
to carry out the proposed closing (s 67(6)
(a)
);
(h) after the proposed closing has been carried out, the
council must forthwith, if the closing was carried out in terms of
paragraph
(6)
(a)
, notify the Surveyor-General and the
Registrar of Deeds or other registration officer concerned in writing
that the closing has
been effected properly in accordance with the
provisions of the Ordinance (s 67(9)
(a)
);
(i) the council must supply the Surveyor-General with a
diagram framed by an admitted Land Surveyor showing all the details
of the
closing. The Surveyor-General shall thereupon cause such
amendments to be made in the general plan of the township as are
necessary
to show such closing and the Registrar of Deeds or other
registration officer concerned shall thereupon make corresponding
entries
in his registers (s 67 (10)).
[31] Section 67 therefore provides in considerable
detail for a notice to be given, the contents of the notice to be
given, the
manner in which notice must be given, the parties to whom
notice must be given and the time to be allowed to interested parties
to lodge objections or claims for compensation. The purpose of these
provisions is clearly to ensure that residents are given every
opportunity to take steps to safeguard their interests in the open
space. In addition, the provisions of Chapter 4 of the Systems
Act
must be complied with as these provisions are designed to ensure
public participation in decisions taken by the council which
affect
their interests.
[32] The first appellant’s deponent alleges that
the first appellant complied, or substantially complied, with these
detailed
provisions but does not set out the facts in support of this
allegation. He does not refer to the council having accepted a
proposal
to close the park or attach a copy of the plan drawn up to
show the boundaries of the closed space. The notices that he refers
to do not comply with s 67 and the manner in which notice was given
also does not comply with the section. There is no proof of
the fact
that the notices were displayed conspicuously at the park for the
prescribed period and the first appellant’s deponent
states
that the first appellant did not give the prescribed notice to the
parties residing in the properties abutting on the park.
The first
appellant did receive some objections and obviously rejected them but
it cannot be found on the first appellant’s
evidence that the
first appellant complied or substantially complied with the
provisions of s 67. The first appellant’s deponent
also does
not allege that the first appellant complied with ss 21 and 21A of
the Systems Act which is essential for compliance
with the council’s
community participation obligations in Chapter 4 of the Systems Act.
The first appellant therefore acted
unlawfully in resolving to close
the property and the high court correctly reviewed and set aside the
resolution to do so. The
appeal against that order must also fail.
[33] The appellants contended that the respondent
brought its review application in the high court outside the period
of 180 days
prescribed by s 7(1) of PAJA. They argued that each
decision that the respondent sought to review was a separate decision
and that
the respondent was required to bring its review in respect
of each decision within the prescribed period. The high court
correctly
did not uphold this argument which was not advanced with
much conviction on appeal. As already pointed out, the transaction
required
that the stand be subdivided, rezoned and closed and that an
exemption be obtained for an environmental impact assessment. All
these matters were inextricably linked – there was, for all
practical purposes, one composite transaction – and the
refusal
of the appeal against the decision to close the park was the last
step before the respondent could institute its review
application.
That was done within the prescribed period.
[34] Although the appellants addressed the issue of
locus standi in their heads of argument, counsel did not attempt of
persuade
this court of the correctness of the point in oral argument
before this court. In my view there is no substance in the point and
it requires no further consideration.
[35] LHR obtained leave to make submissions regarding
the infringement of the second appellant’s members’
rights to
freedom of religion and to practise their religion and
form, join and maintain religious associations in terms of ss 15 and
31
of the Constitution in the event of the review succeeding. LHR
gave notice that, at the hearing, it would seek leave to file an
affidavit in support of the submissions it wished to make.
Unfortunately LHR failed to file its affidavit before the hearing or
comply with the provisions of Rule 16 of the rules of this court.
Furthermore, LHR’s counsel made no submissions as foreshadowed
in LHR’s heads of argument and it is therefore not necessary to
consider the matters raised there.
[36] The appellants have achieved substantial success in
this appeal and are entitled to their costs of appeal. The second
appellant
was represented by two counsel, and the costs of two
counsel will be allowed.
[37] The following order is made:
1. The order of the court a quo reviewing and setting
aside the first appellant’s resolution of 25 October 2007, to
invite
tenders for the alienation and development of the public open
space is set aside;
2. The order of the court a quo reviewing and setting
aside the first appellant’s resolution of 31 January 2008, to
accept
the second appellant’s tender for the alienation and
development of the public open space is set aside; and
3. The order declaring the deed of sale between the
first and second appellants dated 8 February 2008 (for the purchase
of the property)
ab initio
invalid is set aside;
4. Save as above, the appeal is dismissed. The first
respondent is ordered to pay the first and second appellants’
costs of
appeal, including, in the case of the second appellant, the
costs of two counsel.
______________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL
APPEARANCES
For First Appellant: T STRYDOM SC
Instructed by:
D K Siwela Attorneys
Pretoria
Honey Attorneys
Bloemfontein
For Second Appellant: N CASSIM SC (with
S BUDLENDER)
Instructed by:
Ayoob Kaka Attorneys c/o Friedland Hart Solomon &
Nicolson
Pretoria
Symington & De Kok
Bloemfontein
For Respondent: J G BERGENTHUIN SC
Instructed by:
Van Zyl Le Roux Inc
Pretoria
McIntyre van der Post
Bloemfontein
For
Amicus Curiae
: R JANSEN (with G SNYMAN)
Instructed by:
Lawyers for Human Rights
Pretoria
Webbers
Bloemfontein
1
Diggers
Development (Pty) Ltd v City of Matlosana & another
[2012]
1 All SA 428
(SCA).
2
Diggers
Development
supra 22.
3
Ferndale
Crossroads Share Block (Pty) Ltd & others v Johannesburg
Metropolitan Municipality
2011 (1) SA 24
(SCA).
4
Ferndale
Crossroads
supra 22.
5
Corondimas
& another v Badat
1946 AD 548
at 551;
Geue & another
v Van der Lith & another
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) para 8;
Paradyskloof Golf Estate (Pty) Ltd v Stellenbosch Municipality
2011 (2) SA 525
(SCA) para 17;
Diggers Development (Pty) Ltd
v City of
Matlosona & another
[2012] (1) All SA (1)
428 (SCA) paras 23-29.