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[2010] ZASCA 92
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Paradyskloof Golf Estate (Pty) Ltd v Municipality of Stellenbosch (547/08) [2010] ZASCA 92; [2010] 4 All SA 591 (SCA) ; 2011 (2) SA 525 (SCA) (2 July 2010)
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case number: 547/08
In the matter between:
PARADYSKLOOF GOLF ESTATE (PTY) LTD APPELLANT
and
MUNICIPALITY OF STELLENBOSCH RESPONDENT
Neutral citation:
Paradyskloof
Golf Estate v Municipality of Stellenbosch
(547/08)
[2010] ZASCA 92
(2 July 2010)
CORAM: MPATI P, MTHIYANE, MALAN AND SHONGWE JJA AND
GRIESEL AJA
HEARD: 7 MAY 2010
DELIVERED: 2 JULY 2010
SUMMARY
: Sale –
of land – suspensive condition in written agreement providing
that either party entitled to resile
from it if suspensive condition
not fulfilled – whether exercise of right to resile almost 14
months after lapsing of period
for fulfilment of condition
unreasonable – whether delay of almost 14 months before
exercising right to resile from agreement
justifies inference that
party resiling had already decided not to resile.
ORDER
On appeal from
: Western Cape
High Court (Cape Town) (Davis J sitting as court of first instance)
The appeal is dismissed with costs which shall include
the costs of two counsel.
JUDGMENT
MPATI P
(Mthiyane,
Malan and Shongwe JJA and Griesel AJA concurring):
[1]
This
appeal concerns the validity of a decision of the council of the
respondent, the Municipality of Stellenbosch, to resile from
an
agreement of sale of certain fixed property. The facts are largely
common cause.
[2] On 13 February 1997 the parties
concluded a written agreement in terms of which the respondent sold
to the appellant a piece
of land, approximately 277 hectares in
extent, situated at Paradyskloof on the outskirts of Stellenbosch in
the Western Cape ('the
property'). A purchase price of R16m was
agreed upon, of which a deposit of R1.6m had to be paid within 14
days from the date of
signature of the written agreement and the
balance 'on the date of transfer'. Interest on the balance of the
purchase price at
the rate of 10% per annum calculated from the date
of conclusion of the agreement was also payable by the appellant
'against registration
of transfer'. (I shall, for convenience,
henceforth refer to the appellant as 'Paradyskloof' and to the
respondent as 'the Municipality'.)
[3] The
development
envisaged by Paradyskloof on the property was to include, among other
things, the construction of an international luxury
hotel, 250
dwelling units and an international tournament golf course with
ancillary facilities. In terms of the written agreement
the
Municipality was required to call for certain impact studies to be
done in respect of the property, after receipt of which
the parties
were to meet so as to 'negotiate in good faith, with regard to the
extent of the proposed development'. In addition,
the Municipality
undertook 'to institute an application for the rezoning of the
property' so as to provide for Paradyskloof's envisaged
development.
[4] The sale of the property was,
however, subject to certain suspensive conditions, of which only one
concerns us in this appeal.
It is recorded in clause 10 of the
written agreement and reads:
'10.1 . . .
10.2 This
agreement is subject to the suspensive condition that the property is
finally rezoned, having the rezoning and/or development
rights
stipulated . . . above [ie permission having been obtained to
construct the hotel, 250 dwelling houses and golf course on
the
property] or, if different development rights have been agreed upon,
such development rights, or such less zoning and/or development
rights which [Paradyskloof] may agree to accept.
10.3 If the
suspensive condition referred to in clause 10.2
has not been fulfilled within 18 (EIGHTEEN) months from date of
lodging of the rezoning application, then either party will be
entitled to resile from the Agreement, in which event the deposit
paid . . . shall be repaid by the COUNCIL to the PURCHASER, free
of
interest.'
The rezoning
of
the property and the development rights were initially obtained
timeously, but the decisions of the relevant Members of the
Provincial Council to grant them were set aside by the Western Cape
High Court on 11 February 2002 at the instance of a third party.
The
grounds upon which the decisions were set aside are not germane to
the determination of the issues now on appeal.
[5] However, the decision of the High
Court led to uncertainty as to the status of the written agreement,
but after separately obtaining
advice on the matter, as well as on
the value of the property, which had by then become a contentious
issue, the parties entered
into negotiations which culminated in a
settlement agreement being concluded on 6 April 2004. In terms of the
settlement agreement
the parties agreed to be ‘bound’ by
the written agreement (to which I shall now refer as 'the original
agreement')
and to proceed with its implementation, which would,
inter alia, entail fresh applications for rezoning and permission for
Paradyskloof's
proposed development on the property.
1
The running of the period of 18 months within which the suspensive
condition referred to in clause 10.2 of the original agreement
had to
be fulfilled would thus commence on 6 April 2004 (the date of
signature of the settlement agreement). Additional obligations
were
placed on Paradyskloof in terms of the settlement agreement which I
need not record here.
[6] On 29 September 2004 the
Stellenbosch Ratepayers Association instituted motion proceedings
against the Municipality and Paradyskloof,
seeking an order reviewing
and setting aside the Municipality's decision to enter into the
settlement agreement with Paradyskloof.
Those proceedings are still
pending.
[7] The period of 18 months from the
date of signature of the settlement agreement (6 April 2004) expired
on 5 October 2005, without
the suspensive condition having been
fulfilled. However, on 4 October 2005 the attorneys for Paradyskloof
had dispatched a letter
to the Municipality informing it that
Paradyskloof would not resile from the sale agreement and that it
would continue to wait
for the approval of the applications for
rezoning and development rights. The Municipality was also invited to
indicate what its
stance was in that regard. Upon receipt of the
letter on 4 October 2005 the Municipality's Mayoral Committee (MAYCO)
adopted a
resolution which it conveyed to Paradyskloof on the
following day. The resolution was couched in the following terms:
‘
[T]he
Mayoral Committee
RESOLVED . . .
(a) i
n
principle, not to exercise its right in terms of clause 10.3 of the
Sale Agreement to resile from the said Agreement, but to pursue
the
option of granting Paradyskloof Golf Estate (Pty) Ltd a further,
extended period of 18 months, to afford them reasonable time
to meet
the suspensive conditions, i.e. to get the necessary development
rights, as sought by them; and
(b) t
o
follow a notice and comment procedure in terms of the Promotion of
Administrative Justice Act, as to inform the public of its
intention
to pursue the option of extending the time to allow Paradyskloof Golf
Estate reasonable time to meet the suspensive conditions,
and to
allow for a reasonable opportunity to make representation[s]
.'
[8] On 23 February 2006 and after it had followed the
notice and comment procedure referred to in its resolution of 4
October 2005,
MAYCO adopted the following resolution:
'(a) [T]hat Council confirm its
decision not to resile from the Agreement.
(b) that Council enter into
negotiations with [Paradyskloof] on the following issues, in an
effort to reach consensus, which consensus
need to be in the form of
a formal variation/amendment of the Settlement Agreement . . . :
(i) period of extension and
effective date of such Agreement;
(ii) possible re-calculation of
"
loss of income
"
for the period 1 October 2004 until date of registration of the
property in the name of [Paradyskloof], on the same basis
the
calculations were done in the Settlement Agreement (see paragraphs
2.2 of the Settlement Agreement);
(c) that Council authorise the
Municipal Manager to act on behalf of Council in negotiations with
[Paradyskloof], . . . ; and
(d) . . . '
This resolution was conveyed to Paradyskloof's attorneys
by a Mr Smit, the Municipality's Director: Corporate Services, by
email
on 7 March 2006.
[9] Subsequent discussions and negotiations on the
issues mentioned in paragraph (b) of MAYCO's above resolution did not
bear fruit
and on 1 September 2006 the Municipality's attorneys
addressed a letter to the attorneys for Paradyskloof, notifying them,
inter
alia, that the Municipality was 'obliged to consider the
question of whether or not to proceed with this transaction with
reference
to the factors contained in the provisions of s 14(2)
of the Local Government: Municipal Finance Management Act' (MFMA).
2
The letter also invited Paradyskloof, if it so wished, to make
representations to the Municipality regarding the factors to be
considered by the latter as required by the provisions of s 14(2)
of the MFMA.
3
Following a further letter from the attorneys for the Municipality
dated 13 September 2006 Paradyskloof, through its attorneys,
submitted a memorandum in which it confined itself to a potential
decision (by the Municipality) not to consent to the sale in
terms of
s 14(2) of the MFMA.
[10] When the letters of 1 and 13 September 2006 were
addressed to Paradyskloof's attorneys by the attorneys for the
Municipality,
the Municipality was in possession of senior counsel's
opinion, by which it was advised, inter alia, (a) that on the expiry
of
the 18-month period referred to in the settlement agreement, the
parties were entitled to make a fresh decision as to whether to
proceed with the contract of sale; (b) that s 14(2) of the MFMA
came into operation on 1 July 2004 and that therefore the
MFMA was in
operation on the date the Municipality was entitled to consider
whether or not to proceed with the transaction; (c)
that the power to
make a determination in terms of s 14(2)(a) and (b) of the MFMA
could not be delegated, that the full Council
could make the
necessary decision and that the decision of MAYCO on 23 February 2006
was accordingly invalid; and (d) that Council
was obliged, in terms
of s 14(2) of the MFMA, to consider the question whether or not
to resile from the sale agreement and
that in considering that
question it must make the determinations referred to in s 14(2)(a)
and (b). The Municipality had
also obtained a valuation report from
Messrs Rode and Associates reflecting a value of R150m for the
property as at 31 August 2006.
It had instructed Rode and Associates
to revisit an earlier valuation report so as to reflect 'the current
market value' of the
property.
[11] At its meeting on 28 November 2006 the Municipality
resolved (by majority):
'(a) that the legal opinion of
Adv Rosenberg SC be noted;
(b) that the valuation report of
Messrs Rode and Associates be noted;
(c) that the representations of
Messrs Jan S de Villiers, on behalf of their client, Paradyskloof
Golf Estate (Pty) Ltd, be noted;
(d) that, in the light of the
material discrepancy between the valuation in (b) above and the price
as set out in the settlement
agreement, read with the original Sales
Agreement entered into between the then transitional local council of
Stellenbosch and
Paradyskloof Golf Estate (Pty) Ltd dated 13 February
1997, Council, in terms of their obligations under s 14(2) of
the MFMA,
cannot support recommendations (d) to (g) of the Mayoral
Committee, as set out above; and
(e) that, in the light of the
circumstances, specifically the opinion of Adv Rosenberg SC, Council
resile from the Sales Agreement
in terms of Clause 10.3 of the said
Agreement.'
[12] The recommendations of MAYCO referred to in
paragraph (d) of the resolution are contained in a resolution passed
by MAYCO on
22 November 2006. The recommendations read thus:
'(a) . . .
(b) . . .
(c) . . .
(d) that the consideration of
the transaction in terms of Section 14(2), at this stage, be delayed
until such time as the Municipal
Manager concludes his negotiations
with Paradyskloof . . . regarding the issues set out in the [MAYCO]
resolution of 2009-02-23;
(e) that the Municipal Manager
be mandated to conclude such negotiations within a reasonable time
period, but before 2007-01-31;
(f) that, after this (and only
on the basis that consensus relating to the issues received therein
has been reached and the time
periods complied with) the matter be
referred to full Council for its consideration in terms of Section
14(2) of the MFMA; and
(g) that, should the Municipal
Manager fail to reach an agreement with Paradyskloof as envisaged in
(d) (
supra
)
Council consider the option, in terms of Clause 10.3 of the Sales
Agreement, to resile from the Agreement (in which case it will
not be
necessary for Council to consider the matter in terms of Section 14
of the MFMA).'
It may be mentioned that the value of R150m placed on
the property by Rode and Associates was based on a development
consisting
of 547 serviced residential erven.
[13] To counter this latest valuation by Rode and
Associates, Paradyskloof obtained a further independent valuation
from a Mr Tim
Moulder of C B Richard Ellis (Pty) Ltd on 28 March
2007.
4
Based on sales of 250 stands, Mr Moulder concluded that a reasonable
value for the property as at 1 September 2006 was R65m. Considering
that the Municipality placed reliance on a flawed valuation by Rode
and Associates in reaching its decision to resile from the
sale
agreement, Paradyskloof instituted proceedings against the
Municipality, seeking an order 'declaring unlawful and invalid,
alternatively inefficacious, paragraphs (d) and (e) of the resolution
of the [Municipality] taken on 28 November 2006'. In the
alternative,
Paradyskloof sought an order 'reviewing and setting aside paragraphs
(d) and (e) of the said resolution', plus costs,
including the costs
of two counsel.
[14] Upon being confronted by Mr Moulder's valuation in
the founding papers, the Municipality commissioned Rode and
Associates for
another valuation, this time to be based on a
development consisting of 250 stands or erven. That valuation, dated
27 August 2007,
determined a market value of R75m 'as in 2006'. Thus,
one of the grounds upon which Paradyskloof relied for the order
sought was
that at the time that it took the decision to resile from
the agreement the Municipality ‘was well aware of the reduction
from 547 to 250 dwelling units’ and that it therefore ‘relied
on a fundamentally flawed estimate of the fair market
value of the
property, more specifically a material mistake by Rode and Associates
concerning the number of residential stands
in the development’.
The High Court (Davis J) dismissed the application with costs. This
appeal is with its leave.
[15] In dismissing the application Davis J referred to
the majority decision in
Florida Road Shopping
Centre (Pty) Ltd v Caine,
5
a case in which the parties had concluded a
written agreement in terms of which the one sold to the other certain
fixed property,
subject to three suspensive conditions. The written
agreement stipulated, after setting out the special conditions, that
-
'[s]hould any of the aforesaid
special conditions not be fulfilled then we shall have the right to
give you notice of cancellation
of this agreement which shall
thereupon lapse.'
The period within which the special conditions had to be
fulfilled was not stipulated in the agreement, but the parties were
agreed
that by the time the conditions were fulfilled a reasonable
period had already lapsed. Although the seller had not given notice
of cancellation of the agreement, he refused to be bound by the
agreement upon the fulfilment of the conditions, asserting that
the
contract had been rendered void upon the lapsing of a reasonable
period after its conclusion. The majority of the court upheld
this
argument and found that the words in the provision conferring upon
the seller the right to give the purchaser notice of cancellation
of
the agreement 'were inserted
ex abundanti
cautela
'.
6
[16] Relying on the majority decision in
Florida
,
Davis J, in the present matter, held that the settlement agreement
lapsed when the suspensive condition was not fulfilled on 5
October
2005. The learned judge said:
'[W]hen the settlement agreement
lapsed on 5 October 2005, that is when the suspensive condition
clause at 10.3 of the [original
agreement] read with clause 10.3 as
amended was [not] fulfilled, that was the end of any basis of a
contract between the parties.
Binding contractual relationships could
only be restored by the conclusion of a further written agreement
which
inter alia
would provide a further date by which the suspensive condition as set
out in clause 10.2 had been fulfilled.'
7
And further:
'Notwithstanding the
correspondence and indications that a new written agreement could be
negotiated, the existing settlement agreement
lapsed on 5 October
2005. No further written amendment was concluded so that the
settlement agreement was no longer of legal force
and effect.'
8
Having come to this conclusion, the court considered it
unnecessary 'to traverse the whole range of further arguments raised
by
[Paradyskloof]'. Those arguments, he said, were based 'on the
assumption that [the] contract continued.’
[17] An agreement of purchase and sale entered into
subject to a suspensive condition does not there and then establish a
contract
of sale 'but there is nevertheless created "a very real
and definite contractual relationship" which, on fulfilment of
the condition, develops into the relationship of seller and
purchaser. . .'.
9
Upon fulfilment of the condition the contract thus becomes
enforceable. Non-fulfilment of the suspensive condition, however,
renders
the contract void
ab initio
,
unless the parties have agreed otherwise.
10
[18] Strong and very interesting arguments were advanced
on behalf of both parties in this court in an effort to persuade us,
from
the side of Paradyskloof, to find that the agreement did not
lapse at the expiry of the 18-month period provided for in clause
10.3 of the original agreement as amended by the settlement agreement
and, on the part of the Municipality, to find that the agreement
indeed lapsed. I consider it unnecessary to set out counsel's
arguments on this issue, since I am prepared to assume, in favour
of
Paradyskloof, that the agreement did not lapse. The issue to be
considered then is whether or not the Municipality's decision
to
resile from the agreement was lawful and valid.
[19] Three reasons were advanced on behalf of
Paradyskloof as to why the decision was allegedly unlawful. The first
was that its
foundation was flawed because the factual basis for it
was erroneous, in that (a) the second valuation of the property by
Rode
and Associates at R150m, which was considered by the
Municipality, bore no relation whatsoever to the purchase price, and
(b) the
Municipality's decision, under s 14(2) of the MFMA,
11
not to transfer the property to Paradyskloof came as a result of that
valuation. Consequently, so the argument went, the Municipality's
decision to resile from the agreement was based on its unlawful and
invalid decision not to transfer the property to Paradyskloof.
[20] The short answer to this submission is this.
Whatever the reason for the Municipality's decision may have been is
really of
no consequence. I agree with counsel for the Municipality
that in instances such as the present, at worst for the party making
the election, its decision to resile may well constitute a breach
which would entitle the other contracting party to accept the
breach
and cancel the agreement, or to reject it and sue for specific
performance. Thus, whether or not the provisions of s 14(2)
of
the MFMA were applicable in this case is, in my view, of no
consequence. The decision to resile, whatever the reasons therefor,
is not an administrative act which can be reviewed and set aside, but
is the exercise of a contractual right.
12
The parties had agreed that upon non-fulfilment of the suspensive
condition either party would be entitled to resile from the
agreement.
[21] The second reason for the alleged unlawfulness or
invalidity of the Municipality's decision to resile from the
agreement was
that by 23 February 2006 MAYCO had allegedly taken a
decision not to resile from the contract when it resolved 'that
Council confirm
its decision not to resile from the Agreement'. I
have mentioned above that this resolution by MAYCO was communicated
to Paradyskloof,
through its attorneys, on 7 March 2006. It was
accordingly contended that the Municipality was bound by that
decision, because
once the election was made, it was final. In this
regard reliance was placed on the decision of this court in
Administrator, Orange Free State, & others
v Mokopanele & another,
13
where Hoexter JA said that once a contracting party has approbated it
cannot thereafter reprobate. Counsel submitted that the decision
of
MAYCO confirming its earlier decision not to resile
14
from the sale agreement stood on its own and was not subject to the
subsequent paragraphs in the resolution.
[22] I do not agree. The decision that MAYCO resolved to
confirm on 23 February 2006 was the 'in principle' decision taken on
4
October 2005.
15
That 'in principle' decision was clearly subject to the Municipality
pursuing 'the option of granting [Paradyskloof] a further
extended
period of 18 months, to afford them reasonable time to meet the
suspensive conditions', and to follow a notice and comment
procedure
so as to inform the public of its intention to pursue the option just
mentioned. Clearly, MAYCO's decision not to resile
from the agreement
depended on the parties reaching consensus on the issues listed in
paragraph (b)(i) and (ii) of MAYCO's resolution
of 23 February 2006.
If that were not so, it would mean that were the parties unable to
reach consensus on those issues, there
would be no time limit for the
fulfilment of the suspensive condition. Counsel for Paradyskloof
disavowed a tacit term of the agreement
to the effect that the
suspensive condition would have to be fulfilled within a reasonable
time. In my view, it is highly improbable
that the Municipality,
after having agreed on a specific time period in the original
agreement and in the settlement agreement,
would be content, when no
consensus had been reached, with an open-ended agreement which has no
stipulation as to the period within
which the suspensive condition
had to be fulfilled. The very fact that MAYCO resolved that 'Council
enter into negotiations with
[Paradyskloof] . . . in an effort to
reach consensus' on the period of extension and effective date of the
agreement, and which
consensus 'need to be in the form of a formal
variation/amendment of the Settlement Agreement' clearly points to
the decision not
to resile being subject to the negotiations.
Furthermore, in the letter of 7 March 2006, addressed to
Paradyskloof's attorneys
advising of the resolution of MAYCO, the
following was recorded:
'Hierby aangeheg as Aanhangsel 1
is 'n uittreksel uit voormelde vergadering se notule, waaruit dit
duidelik is dat die Uitvoerende
Burgermeesters Komitee inderdaad
besluit het om nie uit die kontrak te tree nie,
onderhewig
aan sekere voorwaardes
.'
(My underlining.)
16
The letter, in my view, puts the matter beyond doubt.
[23] Counsel conceded during argument that should the
finding of this court be against Paradyskloof on this issue, and, I
suppose,
subject to a third reason why the Municipality's decision of
28 November 2006 was said to be unlawful, then the appeal must fail.
The third reason was articulated thus. A party who is entitled to
resile from a contract has to exercise its election within a
reasonable time after becoming aware of the circumstances giving rise
to the right to resile. It was accordingly submitted that
on the
facts of the present matter the delay between 5 October 2005 (when
the 18-month period expired) and 28 November 2006 (when
the decision
to resile was made) was unreasonable. The motivation for this
submission was that during the period between 5 October
2005 and 28
November 2006 the Municipality had received the development rights
applications and advertised them for public comments;
that the
Municipality had embarked upon a public notice and comment process
about whether or not it should extend the period for
the fulfilment
of the suspensive condition, and that it had taken a decision to
continue negotiating about, among other things,
the period of
extension and notified Paradyskloof of it. It was accordingly
submitted that taken together with the delay, these
facts justify the
inference that by 28 November 2006 the Municipality had already
decided not to resile from the agreement.
[24] Failure to exercise a right to cancel a contract
(in this case to resile from it) within a reasonable time does not
necessarily
result in the loss of the right. As was said in
Mahabeer
v Sharma NO & another
17
:
'[d]epending on the
circumstances, such a failure may, eg, justify an inference that the
right was waived or, stated differently,
that the party entitled to
cancel has elected not to do so. . . .'
18
The court went further to say:
'In such cases the lapse of an
unreasonably long time forms part of the material which is taken into
account in order to decide
whether the party entitled to cancel
should or should not be permitted to assert his right. But
per
se
it cannot bring
about the loss of the right.'
19
[25] In its answering affidavit, deposed to by a
councillor, namely Mr Johannes Gagiano, the Municipality said the
following:
'I deny that, by November 2006,
an unreasonably long period had elapsed from 5 October 2005. As is
apparent from the chronology
of events set out in this affidavit and,
to some extent, in the founding affidavit, the intervening time had
been taken up with
various discussions and requests for
representations and comments. There is no reason why the Council
resolution of 28 November
2006 was any more prejudicial to
Paradyskloof by virtue of being taken in November 2006 rather than
in, say, June 2006. The Municipality
had used the time to take advice
to ensure the legality of its actions; while the applicant had been
given an opportunity to motivate
its position and explain why a
decision should not be taken which would be adverse to its interests.
I also refer again in any
event to clause 28 of the Sale Agreement.'
No replying affidavit was filed by Paradyskloof. The
Municipality's version of events was thus not gainsaid. In these
circumstances,
it cannot be said, in my view, that the facts justify
the inference that by 28 November 2006 the Municipality had already
decided
not to resile from the contract.
[26] In any event, clause 28 of the original agreement
reads:
'No latitude, extension of time
or other indulgence which may be given or allowed by any/either party
to the any/other party/ies
in respect of the performance of any
obligation hereunder, and no delay or forbearance in the enforcement
of any right of any/either
party arising from this agreement and no
single or partial exercise of any right by any/either party under
this agreement, shall
in any circumstances be construed to be an
implied consent or election by such party or operate as a waiver or a
novation of or
otherwise affect any of the parties' rights in terms
of or arising from this agreement or estop or preclude any such party
from
enforcing at any time and without notice, strict and punctual
compliance with each and every provision or term hereof.'
The parties thus clearly agreed that no delay in the
enforcement of any right by any one of them shall be construed as an
election
to, or not to, enforce the right. It follows that the
decision of the Municipality to resile from the agreement cannot be
assailed.
[27] In view of these conclusions, it has become
unnecessary for me to consider any further arguments on the question
whether the
MFMA was retrospective in its application and thus
whether the provisions of s 14(2) applied to the present matter.
[28] The appeal is dismissed with costs which shall
include the costs of two counsel.
………………………
L MPATI P
Counsel For Appellant:
O L ROGERS
SC
A BREITENBACH
Instructed by: WERKSMAN INC
CAPE TOWN
Correspondents: NAUDES ATTORNEYS
BLOEMFONTEIN
Counsel for Respondent: S P ROSENBERG SC
P B J FARLAM
Instructed By: CLIFFE DEKKER HORMEYER INC
CAPE TOWN
Correspondents: CLAUDE REID INC
BLOEMFONTEIN
1
Clause 2.1 of the settlement agreement reads:
'2.1
Voortsetting van die Ooreenkoms
2.1.1 Die partye kom ooreen dat hul gebonde is
aan die Ooreenkoms en onverwyld voortgaan met die implementering
daarvan –
wat
inter alia
'n
de novo
aansoek
vir die verkryging van die nodige ontwikkelingsregte behels met die
gepaardgaande struktuurplanwysiging, hersoneringsaansoek,
voorafgegaan deur die nodige impakstudies, publieke deelname
ensovoorts.
2.1.2 Die ondertekeningsdatum van hierdie skikkingsooreenkoms sal
dien as die aanvangsdatum na verwys in klousule 10.3 van die
Ooreenkoms.'
2
Section 14(2)
of the
Local Government: Municipal
Finance Management Act 56 of 2003
provides:
'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 –
(
a
)
has decided on reasonable grounds that the asset is not needed to
provide the minimum level of basic municipal services; and
(
b
)
has considered the fair market value of the asset and the economic
and community value to be received in exchange for the asset.'
3
By this time control of the Municipality had been
taken over from the African National Congress by the Democratic
Alliance, which
appeared not to have been in favour of the
transaction.
4
Paradyskloof had obtained a valuation from N S
Terblanche and Associates, who had determined a value in respect of
the property
of R35m.
5
1968 (4) SA 587
(N).
6
At 603F-604C.
7
At para 72 of the judgment.
8
At para 77.
9
Corondimas & another v Badat
1946 AD
548
at 558-9.
10
R H Christie
The Law
of Contract in South Africa
5ed p145;
Southern Era Resources Ltd v Farndell
NO
[2009] ZASCA 150.
11
Above n 2.
12
Compare
Cape
Metropolitan Council v Metro Inspection Service (Western Cape) CC &
others
2001 (3) SA 1013
(SCA) at
1023G-1024A.
13
[1990] ZASCA 69
;
1990 (3) SA 780
(A) at 787G-H.
14
See paragraph (a) of the resolution of 23
February 2006, quoted in para 8 above.
15
Quoted in para 7 above.
16
A direct English translation would read:
'Attached hereto as Annexure 1 is an extract from the minutes of the
aforementioned meeting,
from which it is clear that [MAYCO] indeed
decided not to resile from the contract,
subject
to certain conditions
.'
17
1985 (3) SA 729
(A).
18
At 736G-H.
19
At 736H-I.