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[2010] ZASCA 126
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Ferndale Crossroads Share Block (Pty) Ltd and Others v City of Johannesburg Metropolitan Municipality and Others (542/2009) [2010] ZASCA 126; 2011 (1) SA 24 (SCA) ; [2011] 2 All SA 15 (SCA) (30 September 2010)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 542/2009
In
the matter between:
FERNDALE
CROSSROADS SHARE BLOCK
(PROPRIETARY)
LIMITED
....................................................................................
First
Appellant
FERNDALE
INVESTMENTS SHARE BLOCK
(PROPRIETARY)
LIMITED
...............................................................................
Second
Appellant
URBAN
REAL ESTATE (PROPRIETARY) LIMITED
...........................................
Third
Appellant
and
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
..................................................................................................
First
Respondent
CITY
OF JOHANNESBURG PROPERTY COMPANY
(PROPRIETARY)
LIMITED
............................................................................
Second
Respondent
CITY
OF JOHANNESBURG DEVELOPMENT AGENCY
(PROPRIETARY)
LIMITED
................................................................................
Third
Respondent
RANDBURG
PROFESSIONAL HAWKERS
ASSOCIATION
INCORPORATED
.................................................................
Fourth
Respondent
RANDBURG
MANAGEMENT DISTRICT INC.
..................................................
Fifth
Respondent
Neutral
citation
:
Ferndale Crossroads Share Block v City of
Johannesburg Metropolitan
(542/09)
[2010] ZASCA 126
(30 September
2010)
Coram:
MPATI P, HEHER, CACHALIA JJA, BERTELSMANN and EBRAHIM AJJA
Heard:
19 August 2010
Delivered:
30 September 2010
Updated:
Summary:
Local authority: Section 79(18) of Local Government Ordinance 17
of 1939 – power of local authority to alienate immovable
property – no such power in absence of preconditions –
lease agreement concluded without compliance with preconditions
invalid.
___________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court (Johannesburg)(Marais J sitting as court of first
instance):
The appeal is dismissed
with costs, which shall include those of two counsel.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
MPATI P
(HEHER, CACHALIA JJA, BERTELSMANN and EBRAHIM AJJA):
[1] Two applications came
before the Johannesburg High Court (Marais J) concerning the same
issue, which is also the primary issue
in this appeal, viz the
validity of a written agreement (the agreement) concluded between the
first and second appellants (of the
one part) and the first
respondent. Clause 5 of the agreement reads:
`[The
City of Johannesburg] agrees to lease the land. . .marked in Red
between BE and F on the Drawing at an annual nominal rental
of R499 .
. . to [the first and second appellants]. The land leased in terms
hereof measures approximately 627 square meters and
is in accordance
with the draft surveyors’ diagram attached hereto as annexure
“A”. . .’
In part B of their notice
of motion the appellants sought an order, inter alia, ‘[d]eclaring
that the written agreement concluded
between the first and second
appellants (of the one part) and the first respondent on 27 March
2002 is valid and enforceable’.
No relief was sought against
the second, fourth and fifth respondents; they were cited by virtue
of the interest each held in the
subject matter of the application.
The third respondent featured in part A of the notice of motion where
interdictory relief was
sought against it and the first respondent,
the City of Johannesburg Metropolitan Municipality. Part A of the
appellants’
notice of motion is not relevant for purposes of
this appeal.
[2] In its notice of
motion, which was coincidentally issued on the same day as that of
the appellants, the first respondent sought
the following order:
`1.
That the lease agreement entered into between [first and second
appellants] and the City of Johannesburg dated 27 March 2002.
. .be
declared to be invalid
ab
initio;
2.
In the alternative to prayer 1, if the lease is found to be valid,
that clause 18.2 of the lease be declared invalid;
3.
In the alternative to prayer 2, if clause 18.2 is found to be valid,
that an order of specific performance of the lease agreement
by [the
City of Johannesburg] would be inappropriate.’
Clause 18.2
of the agreement provides that ‘. . . no party shall in any
circumstances be entitled to cancel this agreement’
.
[3] The appellants own
commercial property in the Randburg Central Business District (CBD).
The property consists of a shopping
centre known as the Oriental
Plaza, one of a number of such centres forming the Randburg Mall (the
mall). A major thoroughfare,
Hendrik Verwoerd Drive (H V Drive),
separates the CBD and the Randburg Civic Precinct (Civic Precinct)
which is located on a triangular-shaped
piece of land owned by the
first respondent and bounded by H V Drive, Jan Smuts Avenue (Jan
Smuts) and Selkirk Avenue. Jan Smuts
and H V Drive meet at a point
close to the Oriental Plaza while Selkirk Avenue, which links Jan
Smuts and H V Drive, is the base
of the triangle. The Civic Precinct
is utilized for a variety of purposes, including a taxi rank and a
traders’ market. The
Oriental Plaza is situated opposite the
taxi rank and traders’ market, across H V Drive.
[4] Prior to the
conclusion of the agreement the taxi rank was partly enclosed by
walls, the side closest to the Oriental Plaza
being left open. Entry
to it was gained from Jan Smuts. Thus, to reach the mall and the rest
of the CBD from the taxi rank pedestrians
had to cross H V Drive. It
is common cause that the conflict between pedestrian and vehicular
traffic constituted a safety hazard.
The appellants, who were the
lessors of all the shops inside the Oriental Plaza, saw in this an
opportunity for securing their
lessees’ tenancy. So they
devised a plan to ‘channel’ the pedestrians from the taxi
rank to the Oriental Plaza
through an overhead bridge across H V
Drive. They anticipated that this would increase business for their
tenants. To achieve their
goal the appellants applied to the first
respondents’ property management forum, the City of
Johannesburg Property Company
(Pty) Ltd (JPC), in May 2001 to lease a
portion of the land making up the Civic Precinct and from which the
bridge could be accessed.
(One foot of the envisaged pedestrian
bridge would rest on the leased land.) Considering that an overhead
bridge would assist in
solving the problem of the safety hazard
caused by pedestrians crossing H V Drive the first respondent
approved the application
and on 27 March 2002 the agreement, which is
the subject matter of this appeal, was concluded.
[5]
In addition to the lease provisions in clause 5
1
the agreement also provided, inter
alia, for the appellants to extend the existing walls around the taxi
rank so that the taxi rank
would be completely enclosed (clauses 6.2
and 6.3).
2
Clause 7.1 is in these terms:
‘
7.1
[The appellants] undertake, as soon as possible after signature of
this Agreement and the obtaining of all necessary approvals
from all
relevant authorities, to attend to the passing of plans for the
design and construction of a pedestrian bridge . . . over
[H V Drive]
close to the intersection with [Jan Smuts] . . . which Bridge will
link the taxi rank with the Oriental Plaza Shopping
Centre.’
Clause 7.2 stipulated
that a consideration of R1.00 ‘will be payable by [the first
respondent] to [the appellants] . . . for
the construction of the
Bridge’. In terms of clause 8.2 the bridge and a certain
barrier, also to be constructed by the appellants
at their own cost,
would become the property of and be controlled and maintained by the
first respondent. Subject to the support
of the Randburg Chamber of
Commerce, the appellants would be entitled to construct and lease to
hawkers twelve kiosks at the foot
of the bridge (clause 9).
[6]
The parties appear to have complied with their respective obligations
in terms of the agreement until the beginning of May 2006
when the
first respondent caused hawkers’ facilities to be erected
outside the wall enclosing the taxi rank. Thereafter,
it caused a
portion of the wall to be demolished in order to allow access
from
the enclosed area to the newly constructed hawkers’
facilities. It is alleged in the appellants’ papers that this
led
to ‘thousands of pedestrians streaming through the gap in
the wall and traversing [H V Drive] on their way to and from the
taxi
rank’.
This
resulted in some skirmishes between the parties to the agreement the
detail of which is not necessary for present purposes.
In the
meantime, during September 2004, a Ms Tanya van Schalkwyk of JPC
discovered that the first respondent had not published
a notice of
its resolution to lease the land concerned as required by the
provisions of s 79(18) of the Local Government Ordinance
(the
Ordinance)
3
,
calling for objections, if any, to the proposed lease. The relevant
part of the Ordinance reads:
’
79
General Powers – The Council may do all 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 council . . .;
(
b
)
whenever a council wishes to exercise any of the powers conferred by
paragraph (
a)
in respect of immovable property, excluding the
letting of any other property than land in respect of which the lease
is subject
to section 1(2) of the Formalities in respect of Leases of
Land Act, 1969 (Act 18 of 1969), 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 African Constitution Act, 1983;
in
which any person who wishes to object to the exercise of any 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 any objection;
or
(ii)
. . . .’
After they had been
advised of this fact the appellants forwarded a written request to
JPC to advertise the lease. Notices calling
for objections to a
proposed ‘long-term lease of the pedestrian bridge across [H V
Drive]’ were published in two newspapers
on 19 November 2004.
In response to the notices three objections were received, after
which certain further developments occurred,
culminating in the first
respondent obtaining legal advice to the effect that the agreement
(lease) was void
ab initio.
In January 2007 the first
respondent’s Director: Legal Services gave instructions that
application proceedings be instituted
on behalf of the first
respondent for an order, inter alia, declaring the lease to be
invalid.
[7] For the order it
sought declaring the ‘lease agreement’ to be void
ab
initio
the first respondent relied on its own failure to comply
with the provisions of section 79(18) of the Ordinance. It asserted
in
its founding affidavit that the agreement constituted a lease and
thus that the council was obliged to publish its resolution to
lease
the land described in it and to invite objections to it.
[8] That the first
respondent is a local authority as contemplated in Part 1 of the
Sixth Schedule to the Ordinance is not in issue.
And it is common
cause that the provisions of s 79(18) were not complied with before
the conclusion of the agreement.
[9] In the founding
papers in their application the appellants intimated that it would be
contended on their behalf that upon a
proper consideration of its
contents the agreement is not essentially a lease agreement (as
contemplated, and provided for, in
terms of s 79(18)), but is rather
a composite arrangement, the true nature of which is not governed by
the provisions of s 79(18)
of the Ordinance. That stance was
maintained in their answering affidavit in the first respondent’s
application. However,
the court a quo found that the agreement ‘in
its own terms was a lease and was so regarded by the parties. . .’
and
that s 79(18) of the Ordinance applied to it. Consequently, in
the first respondent’s application the court declared the
agreement void
ab initio
and ordered the appellants to pay the
first respondent’s costs. It dismissed the appellants’
application with costs.
The appellants are before us with leave of
this court, the court a quo having refused leave to appeal.
[10] The issues on appeal
are (1) whether the agreement, properly construed, constitutes a
lease, in which event it would have been
subject to the provisions of
s 79(18) of the Ordinance; (2) whether, if the agreement is a lease,
the court a quo had a discretion
nevertheless to uphold it and, (3)
if it had such a discretion, whether the court a quo should have
exercised it in favour of the
appellants. A related issue is whether,
if the agreement were found to be valid, an order for specific
performance of the first
respondent’s obligations would be
appropriate.
[11] Since, on the side
of the appellants, the issues in the appeal concern only the first
and second appellants I shall, for convenience,
refer to them
collectively as ‘the appellants’. The third appellant,
although a party to the proceedings against the
respondents by virtue
of the fact that it had acted as the first and second appellants’
agent in the negotiations that led
to the conclusion of the
agreement, was not cited as a party in the first respondent’s
application against the first and
second appellants. I shall also
refer to the first respondent as ‘the respondent’ and to
the first and second respondents
collectively as ‘the
respondents’.
[12] The respondent
asserts in its founding affidavit that the agreement constitutes a
lease and that it (the respondent) was therefore
obliged to publish
its resolution embodying its intention to lease the land described in
it (the agreement) and to call for objections.
‘
A
contract of lease is entered into when parties who have the requisite
intention agree together that the one party, called the
lessor, shall
give the use and enjoyment of immovable property. . . to the other
called a lessee, in return for the payment of
rent.’
4
In
Kessler v Krogmann
5
Innes CJ
said
the following on the essentials of a lease:
‘
A
reference to the authorities will show that the essentials of a
contract of lease are that there must be an ascertained thing,
and a
fixed rent at which the lessee is to have the use and enjoyment of
that thing.’
6
In the present matter
counsel for the appellants conceded that clause 5 of the agreement
utilizes language typically associated
with a lease – the
clause identifies a specific piece of land to be leased (an
ascertainable thing) at an annual nominal
rental of R499 – but
he submitted that the clause is only part of the agreement and not of
itself determinative of its character.
The import and essence of the
agreement, so it was contended, was for a bridge to be constructed at
the appellants’ cost
to serve as a conduit for the safe
conveyance of commuters between the taxi rank and the Oriental Plaza
over the H V Drive. The
substratum of the agreement, the argument
continued, is identified in clause 5 where it is recorded that ‘[i]n
the event
of the taxi rank . . . being moved from the [Civic
Precinct] and the demolition of the kiosks then the lease may be
terminated
by either [of
the
parties]’. It was contended further that clause 7.1 is
fundamental to the overall purpose of the agreement.
7
[13] It is true, as the
court a quo observed, that the agreement ‘contains other
provisions not normally part of a lease agreement’
and that the
appellants entered into the agreement with the objective of effecting
the ‘funnelling’ of commuters from
the taxi rank to the
Oriental Plaza, while the respondents’ objective was to obtain
a pedestrian bridge over H V Drive which
would eliminate the problem
of a safety hazard caused by pedestrians crossing H V Drive at ground
level. But to achieve their objectives,
the appellants, on the one
hand, had to construct the pedestrian bridge and extend the existing
walls around the taxi rank so as
to enclose it completely, while on
the other hand the respondent had to make available a piece of land
on which one of the legs
of the bridge was to rest.
[14]
I agree with counsel for the respondents, however, that the
objectives and motives of the parties are of secondary importance
in
characterising the agreement and that the primary indicator for such
characterisation is the intention of the parties as expressed
by them
in creating the contractual rights and obligations contained in the
agreement. As was said by this court a century ago,
‘as a
general rule, the parties to a contract express themselves in a
language calculated without subterfuge or concealment
to embody the
agreement at which they have arrived. They intend the contract to be
exactly what it purports; and the shape which
it assumes is what they
meant’.
8
The issue in that case was whether a
certain transaction constituted a sale or a pledge. After referring
to the old authorities
and, with approval, to English authority,
Innes JA said:
‘
We
may take it, therefore, both on principle and on authority, that in
considering whether the real nature of any particular contract
is
different from its ostensible form, we must endeavour from all the
circumstances to get the actual meaning of the parties.’
9
[15]
It was not suggested on behalf of the appellants that there was any
subterfuge about the transaction between them and the respondent.
With regard to the circumstances relevant to the present matter, I
have mentioned above that the appellants saw, from the many
commuters
who crossed H V Drive from the taxi rank into the CBD, an opportunity
to bolster the trade conducted by their lessees
in the Oriental Plaza
by ‘funnelling’ the commuters from the taxi rank through
an overhead pedestrian bridge to the
Oriental Plaza. For the
construction of the pedestrian bridge they required the use of a
piece of land owned by the respondent.
In the respondent’s
founding affidavit in its application the allegation is made that
Urban Real Estate (Pty) Ltd (third
appellant), acting on behalf of
the appellants, ‘submitted an application to JPC
to
lease
a portion of
[the Civic Precinct], belonging to [the respondent]’. (My
underlining.) The appellants admitted the allegation,
but qualified
their admission by adding that ‘upon a proper construction of
the agreement . . . it is not, in essence, a
lease, but rather a
composite agreement, of which the lease provisions forms an
insignificant part.’ It was accordingly submitted,
on behalf of
the appellants, that there had been no obligation on the respondent
to comply with the provisions of s 79(18) of the
Ordinance.
[16]
Before us counsel sought support for this proposition from this
court’s decision in
Wed
(Pty) Ltd v Pretoria City Council & others,
10
a case in which the Pretoria City
Council (the Council) had expropriated two adjacent buildings which
it intended to redevelop.
Eighteen years later it decided to approach
interested persons and bodies to assist with the restoration of the
buildings. The
appellant, who occupied part of one of the buildings
caused to be submitted, on its behalf, proposals to the Council for
the restoration
of the buildings. But the Council resolved to
conclude a contract with the second respondent who had also submitted
proposals.
The appellant was dissatisfied with the decision and
instituted motion proceedings against the Council and the second
respondent
for the review and setting aside of the former’s
decision on grounds of non-compliance with the provisions of s 35(1)
of
the Ordinance, which provides, inter alia, that ‘before a
council enters into any contract for the execution of any works
. . .
it shall give . . . notice of its intention to enter into such
contract. . .’ and call for tenders. No such notice
had been
given and no tenders were invited. In terms of the proposed agreement
the second respondent would finance the cost of
the restorations by
means of a loan and would, in return, be granted (by the Council) a
long-term lease of the buildings which
it would then be entitled to
sub-let. In considering whether the proposed agreement was one ‘for
the execution of any works
for and on behalf of the Council’
this court said:
‘
For
the purposes of this case it may be assumed that the activities which
the second respondent will perform in restoring the buildings
will
amount to the carrying out of “works” within the ordinary
meaning of the word . . . These activities will, however,
form only
one facet of a composite contract which will also sanction the
occupation of the buildings by the second respondent for
at least 50
years and will contain the financial arrangements between the parties
consisting in part of the payment of rent by
the second respondent
and in part of the sharing of profits. The contract as a whole is
therefore clearly something more than a
mere contract for the
execution of works.’
11
This court consequently
held that the section ‘is intended to apply only to contracts
to which the procedures laid down in
[it] are capable of being
applied . . .’ and that ‘it must accordingly be limited
to contracts for the execution of
works in return for a money
consideration’.
[17]
I do not agree with the submission by the counsel for the appellant
that the facts in the
Wed
case are similar to
those of the present matter. It is true, as I have already stated,
that in the instant case the agreement contains
other provisions not
normally part of a lease agreement. But unlike the
Wed
case where the
Council was not going to spend any public funds on restoring the
buildings – which, in my view, was the main
ground upon which
this court came to the conclusion that the agreement in that case was
not struck by s 35(1) of the Ordinance
– in the present matter
the first respondent was required to make available (let) what may be
referred to as public space
to private entities mainly for the
latter’s own advantage.
[18] That the agreement
contains a lease element is common cause. And again, I do not agree
with counsel for the appellants that
the lease provisions form an
insignificant part of the agreement. In my view, they form an
integral part of the agreement without
which the parties’
objectives could not have been realised. Indeed, as the respondent’s
counsel correctly pointed out,
without the lease element, in terms of
which the respondent was obliged to permit the bridge to occupy the
leased area of land
on the Civic Precinct for a lengthy period the
agreement would not make any sense. It cannot stand without the lease
element.
[19]
Apart from the fact that the appellants had applied to the first
respondent to lease the piece of land concerned and apart
from the
contents of clause 5 of the agreement, which contains the
essentialia
of a lease –
it identifies the thing to be leased and the annual rental to be paid
in exchange – there are other indicators
present, evidencing
the substance of the parties’ intention, viz to conclude a
lease agreement and, in addition, to record
other rights and
obligations flowing from it. In terms of the agreement the appellants
‘shall be entitled to cede, transfer
or assign any of [their]
rights under this
lease
. . .’
(clause 15). (My underlining.) The agreement makes provision for
‘advertisement costs’ and a ‘valuation
fee’
to be paid by the appellants (clause 5.3), a clear indication that
the parties had the provisions of s 79(18) of the
Ordinance in mind.
And the parties themselves in fact treated the agreement as a lease.
When the appellants were informed that
the respondent had not
complied with the provisions of s 79(18) they requested that the
lease be advertised so as to overcome the
problem. In correspondence
that passed between the parties’ legal representatives the
agreement was constantly referred to
as a lease.
[20]
In my view, the appellants failed to discharge the onus resting upon
them, of proving, on a balance of probabilities, that
the agreement
is something different from what it appears to be: a contract of
lease,
12
or that the lease element of it is so
insignificant that compliance with the provisions of s 79(18) of the
Ordinance was not required
or necessary.
[21] Section 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 the
affording to interested persons of the opportunity to object and have
such objections duly considered.
‘Alienation’ and
‘disposal’ are concepts which are obviously to be
liberally construed in the public interest.
The agreement in question
detracts from the Council’s ownership of 627 square meters of
its immovable property by transferring
rights in that property to the
appellants for 20 years. Such rights may be registered as real
rights. Thus, the agreement factually
gives rise to the very
situation that the subsection was designed to regulate. The fact that
the alienation may appear to be insignificant
in the scheme of the
agreement is irrelevant: the only question is whether or not there is
an alienation or disposal. Once there
is, interested parties could
not be deprived of the opportunity to object.
[22]
The effect of non-compliance with the provisions of s 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 s 79(18)(c) a council
‘
shall
not
exercise the
power [to let immovable property] . . . unless [it] has considered
every objection’. (My underlining.) In the
absence of the
necessary jurisdictional fact the respondent could not validly
exercise the power,
13
with the result that the lease
element of the agreement was
ab
initio
invalid
.
[23]
The appellants contended, in the alternative, that should it be found
that the court below was correct in its conclusion that
the agreement
contained a lease, the court nevertheless failed to exercise its
discretion in favour of condoning the invalidity.
I shall assume,
without deciding, that such a discretion exists.
14
It is not in dispute that the learned
judge did not bring any discretion to bear on this question. And
ordinarily this would be
a sufficient ground for an appellate
tribunal to interfere with an order of a court of first instance.
15
[24] The appellants did
not, however, raise this issue in their founding affidavit in their
application and made only a passing
reference in their replying
affidavit to it being ‘unfair and inappropriate to now declare
it [the contract] void’
because ‘too much water has
already passed under this
bridge to reverse the transaction’. The issue appears to have
been only faintly argued in the court
a quo and was raised expressly
for the first time in the appellants’ amended notice of
application for leave to appeal –
obviously as an afterthought.
[25] It should be
mentioned that the appellants’ failure to raise the issue was
not an oversight. Their case was that the
parties had entered into a
commercial contract and it was in the law of contract – not in
public law or administrative law
– that they sought their
remedy. Thus, in their answering affidavit in the respondent’s
application they sought to
establish that they were entitled to an
order for specific performance, which is a contractual remedy. Having
failed to deal with
the issue pertinently in their affidavits they
cannot now seek to elevate it as a ground on appeal.
[26] Furthermore, in his
judgment dismissing the appellants application for leave to appeal,
Marais J found that even if the contract
was valid he would, in the
exercise of his discretion, not have ordered specific performance
because this would have the effect
of frustrating the respondent’s
redevelopment plans for Randburg’s central business district,
which would not be in
the public interest. And he concluded,
fittingly, that this consideration would have been decisive had he
exercised his discretion
in relation to the declaratory relief that
was sought. I agree with this approach.
[27] The appeal is
dismissed with costs, which shall include those of two counsel.
____________________
L Mpati
President
APPEARANCES
APPELLANTS: S Snyman SC
with him S J Bekker
Instructed by Salant
Attorneys, Johannesburg;
Matsepes Inc.,
Bloemfontein
RESPONDENT: S J Du
Plessis SC with him L B van Wyk SC
Instructed by Brink Cohen
Le Roux, Johannesburg;
Symington & De Kock,
Bloemfontein
1
Quoted
in paragraph 1 above.
2
Clause
6.4 reads: ‘The walls referred to in 6.2 and 6.3 are to be or
have been constructed in such a way to ensure that
the commuters at
the taxi rank who wish to exit the taxi rank will be prevented from
doing
so and that the exit of
such commuters will be directed towards the pedestrian bridge
referred to in 7.1.’
3
17
of 1939.
4
A
J Kerr
The Law of Sale and Lease
3 ed (2004) p245.
5
1908
TS 290.
6
At
297.
7
Clause
7.1 reads: ‘[The appellants] undertake as soon as possible
after signature of this agreement and the obtaining of
all necessary
approvals from all relevant authorities to attend to the passing of
the plans for the design and construction of
the pedestrian bridge’
. . . over [H V Drive] close to the intersection with Jan Smuts
Avenue as depicted on the Drawing,
which Bridge will link the taxi
rank with the Oriental Plaza Shopping Centre.’
8
Zandberg
v Van Zyl
1910 AD 302
at 309.
9
At
310.
10
1988
(1) SA 746 (A).
11
At
757G – I.
12
See
Zandberg v Van Zyl
above, at 314.
13
See
Paola v Jeeva NO & others
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) paras 14
-16;
Kimberley Junior School v
Head, Northern Cape
Education Department
2010 (1) SA 217
(SCA) para 11. Compare also
Foundation Estate & Finance Co. (Pty) Ltd v Johannesburg City
Council
1978 (1) SA 92
(W).
14
For
a contrary view, see DM Pretorius ‘The Status and Force of
Defective Administrative Decisions Pending Judicial Pronouncements’
(2009) 126
SALJ
537.
15
Davidson
v Honey
1953 (1) SA 300
(A) 309A.