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2021
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[2021] ZANCHC 6
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Democratic Alliance v Sol Plaatjie Local Municipality and Another (704/20 & 900/20) [2021] ZANCHC 6 (22 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case No's:
704/20 & 900/20
Determined on
paper
Delivered on:
22/01/2021
In the matter between:
DEMOCRATIC ALLIANCE ("THE
DA")
and
Applicant
SOL
PLAATJE LOCAL MUNICIPALITY
1
st
Respondent
THE
MUNICIPAL MANAGER, SOL PLAATJE
2
nd
Respondent
LOCAL
MUNICIPALITY
AFRIBIZ
[INVESTMENTS]
3
rd
Respondent
Coram: Mamosebo
Jet Mofokeng AJ
JUDGMENT ON REVIEW
MAMOSEBO
J
[1] This application was lodged on an urgent
basis on 26 March 2020. The applicant sought to interdict
the
respondents from developing Erven commonly known as 4112 to 4117 into
houses for the indigent members of the community pending
the outcome
of a review application.
[2] Mayet AJ granted an order by agreement on
19 May 2020 in terms of which: The urgent application was
removed
from the roll; costs to be costs in the review application; that the
applicant files its review application by 04 June
2020 with a
schedule for filing the record and other documents, including heads
of argument. When the application served again
before this Court on
24 August 2020 the papers were not in order. The parties agreed to
update the court file consequent to which
the review would be decided
on the papers. The file was only returned on 08 October 2020.
The parties
[3] The applicant is the
Democratic Alliance (the DA), a political party registered in terms
of s 15 of the Electoral Commission Act
[1]
. The first respondent is Sol Plaatje Local Municipality, a
local government established in terms of s 154(6) of the Constitution
of the Republic of South Africa
[2]
(the Constitution) read with s 2 of the Local Government:
Municipal Systems Act
[3]
(the Systems Act). The second respondent is the Municipal
Manager of Sol Plaatje Municipality in his nominal capacity as the
accounting
officer of the Municipality. The third respondent is
Afribiz Investments, a business firm or entity, whose further details
are
unknown to the applicant.
[4]
The relief sought by the DA is the following:
4.1 Declaring the decision
to allocate or award land known as Erven 4112, 4113, 4114,
4115,
4116, and 4117 Kimberley or to award the right to their use or
control to Afribiz Investments or any other person or entity
to be in
non-compliance with mandatory legal prescripts and consequently
unconstitutional and invalid;
4.2
Reviewing and setting aside the decision in para 4.1 (above),
alternatively granting a just remedy;
4.3 Ordering
the Municipality and the Municipal Manager to pay the costs
of the
application including the costs of the application under Case Number
704/2020 jointly and severally, the one paying the
other to be
absolved. Save for Afribiz Investments all other respondents are
opposing the urgent application and the review application.
Background
[5] The African National
Congress (the ANC) hosted its Annual January gathering in Kimberley,
Northern Cape, on 09 January 2020 to commemorate its birth on 08
January 1912. According to the Acting Municipal Manager, Mr Boy
Dhluwayo, the visit by President Cyril Ramaphosa was in his capacity
as both the President of South Africa and of the ANC. Among
those
accompanying the President when they conducted a house-to-house visit
were the Premier of the Northern Cape and the Executive
Mayor of the
Municipality. During the walk-about in the Colville suburb of
Kimberley one resident, Ms Lydia Kok, invited the President
to her
residence where he witnessed the abject inhumane living conditions of
her extended family of 42 members comprising the elderly,
children
and disabled members, crammed into her three-roomed dwelling.
[6] Mr Dhluwayo maintains in his
answering affidavit that the President immediately impressed
on the
Executive Mayor to "do something about the situation. " The
presidential exhortation made headlines in one of
the local
newspapers, the Diamond Field Advertiser (the DFA), on 28 January
2020. Afribiz was moved by the heart wrenching article
and committed
to build homes for the 42 family members on a charitable basis at no
cost to either the government or the Municipality.
The DFA published
this story:
"Good news for 42
people living in one house
Six
houses will be built for the 42 Colville residents currently crammed
into one house.
This
pledge was made by a Venda-based company, Afribiz Investments, which
partnered with its corporate social investment foundation,
the Collen
Mashawana Foundation.
Each
family will now get a house while the existing house will be
renovated for the seventh family to remain in.
The
company, which has been in existence for 15 years, saw an article in
the DFA and contacted the newspaper for more details on
how it could
intervene.
The company builds the houses, while other parties
and individuals step in [and] donate furniture.”
[7] The offer by Afribiz was entertained or
pursued by the Executive Mayor by convening a meeting of Executive
Directors, and giving instructions to the Municipal Manager, who then
occupied the position of Executive Director of Infrastructure
and
Services, to identify available land, to conduct a feasibility study
and to prepare a report on its suitability for human settlement.
This
feasibility report was commendably promptly filed on 31 January 2020
in accordance with which possible suburbs for the construction
of the
six houses were identified at Homelite, Beaconsfield, Moghul Park,
Lerato Park and Colville. On an elimination process based
on the
infrastructural challenges, the sites were narrowed down to two:
Greenpoint and Beaconsfield as both were already zoned
for
residential use. According to the Municipal Manager, the site was
already identified in the Municipality's Integrated Development
Plan
(IDP) as zoned to be developed for housing for the poor.
[8] On 19 February 2020 the
office of the Executive Mayor addressed a letter to the Afribiz
Project Manager (SP4) expressing gratitude for the gesture and
confirming the available sites earmarked for the development. The
contention by the Municipality is that ownership of the said erven
vests in the Municipality.
[9]
However, a spoke in the wheel appeared via Mr Andrew Louw, the
leader
of the applicant (the DA), who deposed to the founding affidavit on
behalf of the DA. He made the averment that there were
disgruntled
community members in Beaconsfield who expressed their opposition to
their ward counsellor, Mr Herbert Jafta, that the
identified erven
had already been allocated or disposed of to an independent
organisation or Construction Company and who had already
commenced
with the development project of houses for the six families. Mr Louw
maintains that he was also approached by other disgruntled
community
members, which obliged him to launch his own investigation and obtain
further information from the Municipality.
[10 In light thereof that the DA
avers that it could not find any council resolution that dealt
with
the allocation or disposal of the said erven it concluded that the
Municipality had acted outside the prescripts and Mr Louw
then
demanded written reasons from the Municipality for their decision.
When the reasons were not forthcoming the DA approached
this Court
for the initial urgent interdictory relief pending the review
application. It is the Beaconsfield site which the Municipality
found
to be most suitable to address the need at hand that has now become
the subject of this review application.
The grounds for review
[11] The DA has raised the following as grounds for this
review:
11.1 The decision whether or not to utilise municipal
land for anything other than to render basic municipal services
is
reserved for the Municipal Council. The impugned decision to award
the land in question to Afribiz constitutes administrative
action as
defined by s I of the Promotion of Administrative Justice Act (PAJA)
but was seemingly taken by the Municipal Manager
whilst he was not
authorised to do so thereby and accordingly acted in contravention of
s 6(2)(a)(i) of PAJA;
11.2 Sec 6(2)(b) of PAJA requires mandatory and material
procedures to be complied with or adhered to:
11.2.1 That Regulation 5 and 34 of the Municipal
Asset Transfer Regulations
[4]
required the Municipal Manager to have conducted a public
participation process to precede subsequent determinations by the
Municipal
Council on how the land may be used;
11.2.2 In addition to the public participative
process and before any decision could be made to award or allocate
a
right to use or control over the land that there ought to also have
been a determination by the Municipal Council as contemplated
by s
14(2) of the Municipal Finance Management Act (MFMA)
[5]
11.2.3 The administrative action was procedurally
unfair in terms of s 6(2)(c) of PAJA; based on the assertion
that
interested parties were not afforded an opportunity to make inputs
before any decision was taken;
11.2.4 The flawed belief by the Municipal Manager
that he could allocate or award a right of use of land to the
poor
without following mandatory prescripts as required contravened s
6(2)(e)(i) of PAJA cannot be left unchallenged;
11.2.5 Sec 6(2)(e)(iii) and (iv) of PAJA requires
the decision to have been based on relevant considerations
and not be
based on unauthorised or unwarranted dictates of another person or
body. In this instance the Municipal Manager was
influenced by the
noble intentions of Afribiz to provide housing for the destitute
extended family following the expressed concerns
of the President of
the country and the ANC;
11.2.6 The administrative action must not
contravene any law and must be authorised by the empowering
legislation
Sec
6(2)(f) of PAJA. The Municipality and its Municipal Manager have
failed to comply with the mandatory procedures and therefore
the
impugned decision was not authorised by the empowering provisions;
11.2.7 The decision is not only unlawful but it is
also invalid and stands to be set aside as contemplated by
s 8(l)(c)
of PAJA.
Thus
the DA contended.
The
Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA)
[12] The DA's argument
pertaining to SPLUMA is contained at para 24 of
Mr
Louw's founding affidavit which reads:
"Jafta subsequently conducted enquiries which
involved perusing records of council meetings and council resolutions
and was
unable to find any evidence of a council resolution where it
was decided that the Erven were not needed for the [rendering/ or
supplying of basic municipal services and that it may be disposed of,
whether by sale or merely by making it available to Afribiz
for
construction and subsequent allocation and awarding to members of the
community. He could also not find any resolutions that
the provisions
of SPLUMA be deviated [from] and that land be distributed on a basis
other than that provided in the Municipality's
policies and other
legal prescripts.
”
[13] The DA has also
cited the following from the objects of SPLUMA to support
their
viewpoint:
“
...to provide for a uniform, effective and
comprehensive system of spatial planning and land use management for
the Republic, ...to
ensure that the system of spatial planning and
land use management promotes social and economic inclusion, ...to
provide for development
principles and norms and standards,
...provide for sustainable and efficient use of land, ...redress the
imbalances of the past
and to ensure that there is equity in the
application of spatial development planning and land use management
systems.
”
[14] The DA does not specify the
sections in SPLUMA which the respondents have contravened. However,
s
51 of SPLUMA which deals with internal appeals is relevant in the
circumstances before us (not referred to by the DA). It stipulates:
"(1) A person
whose rights are affected by a decision taken by a Municipal Planning
Tribunal
may appeal against that decision by giving written notice of
the appeal and reasons to the municipal manager within 21 days of the
date of notification of the decision.
(2)
The municipal manager must within a
prescribed period submit the appeal to the executive authority of the
municipality as the appeal
authority.
(3)
The appeal authority must consider the
appeal and confirm, vary or revoke the decision.
(4)
A person whose rights are affected within
the provisions of subsection (1) includes
(a)
an applicant contemplated in section
45(1);
(b)
the municipality where the land affected
by the application is located;
(c)
an interested person who may reasonably be
expected to be affected by the outcome of the land development
application proceedings.
(5)
An interested person for the purposes of
subsection (4)(c) must be a person having a pecuniary or proprietary
interest who is adversely
affected or able to demonstrate that she or
he will be adversely affected by the decision of the planning
tribunal or an appeal
in respect of such a decision.
(6)
A municipality may, in the place of its
executive authority, authorise that a body or institution outside of
the municipality or
in a manner regulated in terms of a provincial
legislation, assume the obligations of an appeal authority in terms
of this section.
(7)
No appeal in respect of a decision taken
in terms of or pursuant to this Act may be lodged in terms of section
62 of the Municipal
Systems Act.
”
[15] As stated, the information
was furnished by the Municipal Manager that the Erven were
already
identified and zoned off for residential use in the Municipality's
Integrated Development Plan as a site to be developed
for housing for
the poor. However, it is also known as an infill site, meaning that
it is an open space within a built-up area
as approved in terms of
SPLUMA which is used for the upgrading of existing informal
settlements or the development of new residential
developments. This
information has not been disputed by the DA hence its argument, which
is suggestive of a failure to adhere to
spatial planning in respect
of the six identified erven, lacks substance.
[16] Further, the two opposing
respondents highlighted the following at para 17.6 in their answering
affidavit under Case No 704/2020: "What is worrying is that the
homeowners in this area are now worried about the value of
their
properties dropping because of the shanties. " This contention
is unsupported because the only shanties on site referred
to in these
papers are the two intended for utilisation as a site office and
storage facility during the construction phase.
[17]
The
upshot is that it is evident that the applicant had an alternative
remedy in terms of SPLUMA to lodge an appeal as envisaged
in s 51 and
has failed to do so.
Consideration of the
specific grounds raised by the DA
[18] First, the DA alleged that
the decision whether or not to utilise municipal land for purposes
other than to render basic municipal services is reserved for the
Municipal Council. The submission is that the impugned decision
to
award the land constitutes administrative action as defined by s I of
the Promotion of Administrative Justice Act (PAJA) was
taken by the
Municipal Manager whilst he was not authorised to do so thereby
contravening of s 6(2)(a)(i) of PAJA
[6]
[19] The contention is incorrect.
The letter dated 19 February 2020 written under the letterhead
of the
office of the Executive Mayor and addressed to Ms Karabo Phihlela,
the Project Manager, Afribiz, has been written on behalf
of the
entire Municipality and is not the Mayor acting on a frolic of his
own. The letter ("FA4") reads:
"Dear Madam
This
letter serves to inform you that the Office of the Executive Mayor
[is] extremely pleased with your kind gesture of providing
housing to
one of our destitute families within the municipality.
We
as a municipality are committed to improve the lives of our
communities by delivering basic quality services.
It
is against this background that I [commit] myself and the
municipality in providing the following six (6) serviced sites for
you to construct these houses at your earliest possible date.
The
s
ites are as follows and [are] located within the suburb of
Beaconsfield:
Site (erf) l: 4112
Site (erj) 2: 4113
Site (erf) 3: 4114
Site (erf) 4: 4115
Site (erf) 5: 4116
Site (erf) 6: 4117
These sites are located within the provision of services such as
water,
sewerage, electrical reticulation. The provision of these
services will be for the cost of the municipality.
I trust you will find this in order.
Yours in community development
Regards,
Mr GE Arends
Executive Manager"
[20] It is incontrovertible that the six
erven were already zoned for residential purposes. SPLUMA's
objectives
are that past racially discriminatory spatial planning and
regulatory imbalances must be addressed. It must also include persons
beset by poverty and disadvantaged communities. The six families
resort within such rubik. They also meet the preferential criteria
based on people with disabilities as well as the children. I am of
the firm view that expecting the court to nullify the Municipal
decision for a fresh council resolution or public participation may
be over-fastidious and may entangle the Municipal Council in
red tape
which will simply exacerbate and prolong the misery of the long
suffering families. In any event, I do not think any disposal
or
transfer of this land was ever in issue. Even if this court were to
accept that the decision to award the land to these families
was
influenced by the President I do not think it is a consequence of
taking into consideration irrelevant considerations as opposed
to
failing to consider the relevant considerations. In my view the
applicant has not made out a case for the claimed contravention
of s
6(2)(e)(iii) and (iv) of PAJA.
[21] Our country has been tainted
with malfeasance and corruption to such an extent that even
when a
philanthropist offers to do good for indigent citizens the gesture
may be viewed with suspicion or linked to ulterior motives.
I have
not discerned in this transaction between the
Municipality
and Afribiz that it has been tainted by fraud or gross irregularity
that would lead to it being undone.
[22] The DA maintains that the
respondents contravened s 6(2)(b) of PAJA because the respondents
have failed to comply with mandatory and material procedures or
conditions prescribed by an empowering provision, namely, Regulations
5
[7]
and 34 of the Municipal Asset Transfer Regulations (MATR). In
the answering affidavit, the Municipality and the Municipal Manager
vehemently deny transferring ownership of the said erven.
Disposal is defined in Chapter 1 of the MATR as follows:
"in relation to capital asset, includes —
(a)
the demolition, dismantling or destruction
of the capital asset; or
(b)
any other process
applied to a capital asset
which
results in loss of ownership of the capital asset otherwise than by
way of transfer of ownership;
"disposal management system " means the
system contemplated in
Regulation 40
of the
Municipal Supply Chain
Management Regulations, published
by General Notice No. 868 of 2005"
"Transfer",
in relation to a capital or subsidiary asset, means transfer of
ownership in the asset as a result of a sale
or other transaction. "
[23] The respondents argued that
Regulation
34(1)
of MATR is not applicable to this case because the capital
asset in respect of which the proposed right is to be granted does
not
exceed RIO million and there was therefore no need for public
participation.
Regulation 33(2)(b)
further stipulates that the
chapter does not apply to the granting by municipalities and
municipal entities of rights on municipal
land to housing for the
poor to the beneficiaries of such housing. By virtue of the
conclusion that I have come to, there is no
need to decide this
issue.
[24] I have not discerned in the papers
that a case has been made out by the applicant that the said
erven
have either been disposed of or transferred to Aflibiz. FA 2.1, FA
2.2, FA 2.3, FA 2.4, FA 2.5 and FA 2.6 are copies of the
Deeds search
that confirm that the owner of the said erven remains Sol Plaatje
Municipality.
[25] The DA contends in reply to
the Municipality's averments relating to
s 14(1)
and s 90 (l) of the
Municipal Finance Management Act
[8]
(MFMA)
(disposal of capital assets) that the Municipality still had to
approach the Municipal Council for a resolution that the
said sites
were not required to provide a minimum level of basic municipal
services, but had failed to do so. The DA continued
in its argument
to submit that what is at issue is that the right of use or control
of the land is allocated or given to a person
for an indefinite
period which necessitated prior council resolution.
[26] Counsel for the respondents has
argued the doctrine of necessity in their heads of argument
which
case, submitted the DA, was not made out in the answering affidavit.
The respondents' reliance on the doctrine of necessity
cuts across
the spectra of the right to housing, and the paramountcy of the
children's best interests which includes the right
of a child to be
treated and kept in conditions suitable to a child. The DA was alive
to the submission by the respondents that
the doctrine of necessity
requires progressive realisation of these rights. The respondents'
argument has been strengthened by
the doctrine of necessity which is
crisply explained in an article by Saad Abdulbaqi Sabti YP Rama
Subbaiah:
Administrative Law: Doctrine of necessity, doctrine of
legitimate expectation and doctrine of delegation
[9]
.
A closer scrutiny of the facts and the genesis of the matter
shows that from as far back as the alleged walk-about by the
President
of the country the issue has always been the dismay and
appalling conditions in which the 42 members of the Lydia Kok family
found
themselves in. As much as the doctrine of necessity was not
specified in so many words in the answering affidavit the context in
which the plight of the Kok family was captured in the DFA article,
understood and apparently reacted upon firstly by all who
participated in this process, displays the simplified form of
necessity. I do not agree with the submission by the DA that
necessity
only comes out for the first time in the heads of argument.
[27] Another ground relied upon by the
DA is that, because the respondents have taken into consideration
and
acted upon the apparent intimidation by the President, the decision
to award the 6 erven to the destitute families was therefore
informed
or influenced by irrelevant considerations emanating from the
President or Afribiz and relevant considerations were not
considered
making the decision unwarranted and in contravention of s
6(2)(e)(iii) and (iv) of PAJA. In countering this submission,
the
respondents' counsel relied on what was stated by the Pakistani Chief
Justice Muhammed Munir, validating what was termed the
extra
constitutional use of emergency powers by Governor General, Ghulam
Muhammad, quoting from Bracton's maxim,
"that which is
otherwise not lawful is made lawful by necessity.”
[28] The in-fill site comprises 6
stands and are not vast tracks of land which can accommodate a
large
population. This court is aware of the importance of not creating a
wrong precedent and the need to ensure that the laws
of this country
are promoted and upheld. The continued failure of the local
government to perform in its service delivery, had
caused ordinary
citizens such as Ms Lydia Kok to pin their hopes on the President of
the Country. Nothing prevented the parties
from resolving this matter
amicably in the interests of the indigent families. The Municipality
ought also to have played a more
responsible and transparent role to
avoid such unnecessary litigation. Why did it have to take the
President of the Country and
the ANC to kick the Municipality into
action when the plight of Ms Lydia Kok's extended family must have
been known to them? There
is no doubt in my mind that they are guilty
of dereliction of duties.
[29] It is hoped that Afribiz
Investments, partnered by its Social Investment Foundation, will
still be willing to provide its resources to ameliorate the
impoverished circumstances of the mentioned families. The
construction
of the said houses is therefore found not to be attended
by any illegality or malfeasance.
The decision by the Municipality
is consequently endorsed.
[30] On a conspectus of all the
aforementioned considerations, I am of the view that, by allowing
the
Municipality to proceed with the construction, it will restore the
families' right to dignity, to decent shelter and for their
improved
wellbeing. See
Government of the Republic of South Africa and
Others v Grootboom and Others]
[10]
where Yacoob J, writing for the unanimous court made the
following pronouncements:
"[24] The right of access to adequate housing cannot be seen
in isolation. There is a close relationship between it and the
other
socio-economic rights. Socio-economic rights must all be read
together in the setting of the Constitution as a whole. The
State is
obliged to take positive action to meet the needs of those living in
extreme conditions of poverty, homelessness or intolerable
housing.
Their interconnectedness needs to be taken into account in
interpreting the socio-economic rights, and, in particular,
in
determining whether the State has met its obligations in terms of
them.”
The ConCourt continued with the following
[11]
.
"[41]
...A court considering reasonableness will not
enquire whether other more desirable or favourable measures could
have been adopted,
or whether public money could have been better
spent. The question would be whether the measures that have been
adopted are reasonable.
It is necessary to recognise that a wide
range of possible measures could be adopted by the State to meet its
obligations. Many
of these would meet the requirement of
reasonableness. Once it is shown that the measures do so, this
requirement is met.
The following remarks by Yacoob J are also instructive
[12]
"[44] Reasonableness must also be understood in the context
of the Bill of Rights as a whole. The right of access to adequate
housing is entrenched because we value human beings and want to
ensure that they are afforded their basic human needs. A society
must
seek to ensure that the basic necessities of life are provided to all
if it is to be a society based on human dignity, freedom
and
equality. To be reasonable, measures cannot leave out of account the
degree and extent of the denial of the right they endeavour
to
realise. Those whose needs are the most urgent and whose ability to
enjoy all rights therefore is most in peril, must not be
ignored by
the measures aimed at achieving realisation of the right. It may not
be sufficient to meet the test of reasonableness
to show that the
measures are capable of achieving a statistical advance in the
realisation of the right. Furthermore, the Constitution
requires that
everyone must be treated with care and concern. If the measures,
though statistically successful, fail to respond
to the needs of
those most desperate, they may not pass the test.”
[31] There is no doubt in my mind that the living
conditions of Ms Lydia Kok and members of her extended family were
lamentable and the measures intended to be put in place by the
Municipality to restore their dignity would have passed the muster
of
the test of reasonableness.
[32]
On a question of costs
. Both parties have
urged this court to order punitive costs against each other. I do not
think either party has persuaded me to
do so. In this case, there is
no winner and loser. Therefore I find no value in granting costs
against either party. It is in instances
like these where an
appropriate order will be that each party pays its own costs,
including the costs in Case 704/2020.
[33] In the result, the following order is made:
It is ordered that:
1.
the application of the Democratic Alliance (the DA) is
dismissed.
2.
each party pay its own costs including the costs in Case
Number 704/2020.
MAMOSEBO
J
NORTHERN
CAPE DIVISION
I concur
MOFOKENG
AJ
NORTHERN
CAPE DIVISION
For the
applicant:
Adv MC Louw
Instructed by:
JG Keyl Attorneys c/o Haarhoffs Inc
For the
respondents:
Mr S Groenewaldt
Instructed by:
Towell & Groenewaldt Attorneys
[1]
51 of 1996
[2]
108 of 1996
[3]
32 of 2000
[4]
R878 dated 22 August 2008
[5]
56 of 2003
[6]
Section 6(2)(a)(i) of PAJA stipulates:
(2) A court or tribunal
has the power to judicially review an administrative action if
(a) the administrator who
took it
(i) was not authorised to
do so by the empowering provision.
[7]
"Regulation 5 Part 1: Decision-making process for
municipalities
Transfer or disposal of
non-exempted capital assets
5. (l) A municipality may
transfer or dispose of a non-exempted capital asset only after —
(a) the accounting
officer has in terms of regulation 6 conducted a public
participation process to facilitate the determinations
a municipal
council must make in terms of section 14(2)(a) of the Act; and (b)
the municipal council —
(i)
has made the determinations required by section 14(2)(a) and (b);
and
(ii)
has as a consequence of those determinations approved in principle
that the capital
asset may be transferred or disposed of.
(2) Subregulation (l)(a)
must be complied with only if the capital asset proposed to be
transferred or disposed of is a high value
capital asset. If the
combined value of any capital assets a municipality intends to
transfer or dispose of in any financial
year exceeds five percent of
the total value of its assets, as determined from its latest
available audited annual financial
statements, subregulation (I)(a)
must be complied with in relation to all the capital assets proposed
to be transferred or disposed
of during that year.
[8]
Section 14(1) of the Municipal Finance management Act
56
of 2003 stipulates:
"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 the minimum level of basic
municipal services."
Sec
90(1) stipulates:
"A
municipal entity may not transfer ownership as
a
result of
a
sale
or
other transaction or
otherwise dispose of
a
capital
asset needed to provide the minimum level of basic municipal
services.
"
[9]
International Journal of Law, ISSN: 2455 — 2194, RJIF 5.12,
www.lawjournals.org
Volume 3, Issue
3
May 2017 Page No 59
-
62
[10]
2001
(1) SA 46
(CC) at para 24
[11]
At para 41 H
[12]
At para 44