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[2013] ZAKZPHC 60
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Kwa Sani Municipality v Underberg/Himeville Community Watch Association and Another (415/13) [2013] ZAKZPHC 60 (30 October 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case No. 415/13
In the matter between:
KWA SANI MUNICIPALITY
..........................................................................
APPLICANT
and
UNDERBERG/HIMEVILLE
COMMUNITY WATCH
ASSOCIATION
.............................................................................
FIRST
RESPONDENT
AUBREY NGCOBO N.O.
........................................................
SECOND
RESPONDENT
J U D G M E N T
___________________________________________________________________
KOEN J
:
INTRODUCTION:
[1] The applicant, a
municipality, claims the following relief against the first and
second respondents:
‘
1. The
written services agreement annexed to the founding affidavit of Ms
Caroline Nokubonga James and marked “NJ3”
is declared
invalid and is set aside.
2. The first respondent is directed to
make payment to the applicant of all and any amounts paid by the
applicant to the first respondent
in terms of or pursuant to the
agreement within 7 days of the date of this order.
3. The arbitration proceedings
initiated by the first respondent in terms of the agreement be and
are hereby declared invalid.
4. The second respondent’s
appointment as arbitrator is declared invalid and is set aside
alternatively the second respondent’s
appointment as arbitrator
be and is hereby terminated.
5. It is declared that all and any
decisions and awards as may have been made by the second respondent
in the arbitration proceedings
in the capacity of arbitrator are
invalid and the applicant is not obliged to comply therewith.
6. The first respondent is directed to
bear the costs of this application, save in the event that the second
respondent elects to
oppose this application in which event the first
and second respondents be directed to pay the costs of this
application jointly
and severally.
7. The applicant is granted such
further and/or alternative relief as this Honourable Court deems
appropriate.’
[2] The first respondent
is an association. Its operations
inter alia
include being a
co-ordination centre for disaster management and fire protection,
supplying a 24 hour emergency service to the community
within the
magisterial district of Underberg, supervising and coordinating the
21 security cells within the magisterial district,
being available to
be called upon from time to time by the first respondent to attend to
any emergency within each cell area, cooperating
closely with the
South African Defence Force during the time the latter was deployed
in the district, providing radios and various
vehicles in order to
improve and maintain communications throughout the municipal area,
supervising and managing a working-on-fire
team based at Willowmere,
farm Underberg and subsequently also at Sappi Claremont Farm Bulwer,
etc. The second respondent is the
arbitrator appointed to arbitrate
in a claim pursued by the first respondent against the applicant for
monies it alleges are due
to it by the applicant in terms of the
agreement, annexure ‘NJR3’ to the founding affidavit.
[3] The applicant has
elected to argue the matter in relation to the main relief claimed in
paragraph 1 of the Notice of Motion,
on
the papers. It contends that in respect of the ‘consequential
relief’ claimed from paragraph 2 onwards, that certain
disputes
of fact exist which might require a referral to oral evidence
1
.
During argument I enquired from Mr Gani,
who
appeared on behalf of the applicant,
what
particular issues he envisaged might be referred to oral evidence. He
subsequently provided me with a manuscript note in which
one issue to
be referred to oral evidenced in respect of the ‘consequential
relief’,was identified as:
‘
(1) Whether
the first respondent actually provided services referred to in the
agreement and, if so, the fair and reasonable value
of the services
so provided’.
He however continued that
if there was to be a referral to oral evidence in respect of the
consequential relief, that a further
issue which might assume
significance in respect of the primary relief claimed in paragraph 1
of the Notice of Motion, might also
have to be referred to oral
evidence, and if I was of such view, that the applicant asked that
this issue also be referred to oral
evidence. This issue he
formulated as:
‘
(2) Whether
the first respondent was the only service provider which had the
capacity to provide the services provided for in the
agreement’.
Mr De Wet SC, on behalf
of the first respondent, resisted any such referral and maintained
that the matter could be dealt with on
the papers and that the relief
should be dismissed.
BACKGROUND:
[4] The written agreement
in issue, being annexure ‘NJ3’ to the founding affidavit,
was signed by the
applicant on 2 November 2010 by the then municipal manager of the
applicant,Mr S B Gwacela.
Ex
facie
the
agreement, he signed itauthorised by a resolution of the applicant
numbered ‘No. 117 dated 28 October 2010’.
2
Mr
Chris Barris,
the
chairperson of the first respondent at that time,
signed the agreement on
behalf of the first respondent.
[5] In brief, the
agreement records that the applicant required an emergency and
disaster relief co-ordination centre within the
Kwa Sani municipal
area and that the first respondent was willing and able to provide
suchgeneral emergency and disaster relief
co-ordination services on
the terms as set out in the agreement. Notwithstanding the date of
signature, the effective date of the
agreement was 1 July 2008. The
applicant commenced making payment of the agreed monthly amounts
payable from 1 July 2008. The agreement
was for an initial period of
3 years, until 30 July 2011,
and
would then be automatically renewed for a further 3 years until 30
July 2014,
unless
notice to terminate was provided by either party in writing before 28
February 2011. Failing such notice to terminate, and
there has been
none, the agreement would remain in force indefinitely until at least
6 months written notice to terminate was given
by either party. The
agreement is thus presently during this renewed period post 28
February 2011.
[6] The applicant made
payment to the first respondent under the agreement from 1 July 2008
onwards. It alleges however that during
2012 its circumstances began
to change and it no longer required the services which the first
respondent was rendering under the
agreement, the monthly payments to
the first respondent becoming an unnecessary expense and placing
undue strain on the applicant’s
financial resources.On 23 May
2012 the applicant’s council resolved to terminate the
agreement.
[7] The validity ofthis
purported termination was disputed by the first respondent. When the
applicant persisted with the contention
that the agreement was
cancelled validly, the first respondent initiated arbitration
proceedings, in terms of the arbitration provision
in the agreement,
to enforce the agreement. The second respondent was appointed to
arbitrate in this dispute.
[8] After a change
ofattorneys, the applicant received advice from its new attorneys
during November 2012 that the agreement was
invalid from the outset
on legal grounds. The first respondent’s disputes the
correctness of that advice. Their respective
contentions give rise to
the principal issue for determination before this court.
THE LEGAL FRAMEWORK
:
[9] The agreement is one
for the delivery of a municipal service by an external service
provider,
as
envisaged by the Local Government: Municipal Systems Act
3
and
the Local Government; Municipal Finance Management Act,
4
to an organ of state.
[10] The provisions of s
217 of the Constitution are peremptory. They require that an organ of
state contracting for goods and services
must to do so ‘in
accordance with a system, which is fair, equitable, competitive and
cost effective’.
[11] In terms of s 217(2)
national legislation must be enacted to give effect to the provisions
of that section. The national legislation
enactedis the Preferential
Procurement Policy Framework Act.
5
In respect of
municipalities, the import of s217 of the Constitution has been
‘fleshed out’
6
and reinforced bythe
MFMA.
[12] Part 1 of Chapter 11
of the MFMA deals with the procurement by a municipality or municipal
entity of goods and services. Section
111 requires a municipality to
have and implement a supply chain management policy which gives
effect to the provisions of part
1. Section 116 of the MFMA provides
what a contract procured through the supply chain management policy
of a municipality must
provide for. It includes
inter
alia
that
the contract must be in writing and contain terms and conditions
providing for a periodic review once every 3 years in respect
of a
contract which exceeds 3 years. There are also
Municipal Supply Chain
Management Regulations which
have been published by the Minister of
Finance and under Government Notice 868,
GG
27636
,
dated 30 May 2005. In
terms of
regulation 36
a supply chain management policy, if one had
been created, mayallow the accounting officer
‘
(a) to
dispense with the official procurement processes established by the
policy and to procure any required goods or services
through any
convenient process, which may include direct negotiations, but only –
in
an emergency;
if
such goods or services are produced or available from a single
provider only;
for
the acquisition of special works of art or historical objects where
specifications are difficult to compile;
acquisition
of animals for zoos;
in
any other exceptional case where it is impractical or impossible to
follow the official procurement processes;
(b) to ratify any minor breaches of
the procurement processes by an official or committee acting in terms
of the delegated powers
or duties which are purely of a technical
nature.
’
7
[13] It is common cause
that the applicant did not have a supply chain management policy at
the relevant stage that the agreement
was concluded. In
Municipal
Manager: Quaken Local Municipality and anotherv FV General Trading
CC
,
8
the municipality likewise
had ignored its obligation to have and implement a supply chain
management policy. The Supreme Court of
Appeal held that:
‘
But the
second appellant’s failure to implement a supply chain
management policy cannot relieve it of its statutory obligation
to
act in a manner as summarised above, and it will be untenable to
suggest that the second appellant was therefore not obliged
to act
openly, transparently and without following a fair, equitable,
competitive and cost effective process when contracting with
an
external service supplier to render a municipal service’.
[14] The reference to
‘manner as summarised above’
,
entailed that where a
municipal service such as in
casu
,
is provided by way of an external mechanism by a municipality
concluding a service delivery agreementwith an external service
provider, that the municipality must select the external service
provider by a competitive bidding process which allows prospective
service providers to have equal access to information relevant to the
bidding process and which minimises the possibility of fraud
and
corruption
9
.
THE APPLICANT’S
CONTENTIONS
:
[15] The applicant
contends,
with
reliance on the decision in
Municipal
Manager: Qaukeni v FW General Trading
(supra)
that the applicant had not followed an open public process in
concluding the agreement,
but
did so by private treaty and with no offers having been invited,
or tenders called for,
nor the first respondent’s credentials being investigated and
verified. Accordingly, the conclusion
of the agreement did not comply
with the prescripts of s 217 of the Constitution and the provisions
of the MFMA. This has the effect
that the agreement is invalid
abinitio
for
want of compliance with the principle of legality,
which is a fundamental
principle in our Constitution. Consequential to that contention, the
applicant maintains that there was no
valid legal basis for the
payments which were made to the first respondent by the applicant. It
maintains that this court does
not have a discretion to permit the
first respondent to retain these amounts or any part thereof since
the court ‘cannot
breathe new life into a dead transaction’
and afford validity to what was an invalid and unlawful
contract.
10
Accordingly
all the payments that were made to the first respondent are
reclaimed.
[16] The applicant claims
that the relief it seeks is for a declaration of invalidity and not a
conventional review. Specifically,
it denies that the conclusion of
the agreement amounts to administrative action as defined in the
Promotion of Administrative Justice
Act
11
(‘PAJA’), and
even if it was, it disputes that the first respondent properly
challenged what the applicant seeks to
achieve,
as
being a review to which the provisions ofPAJA would apply.
THE FIRST RESPONDENT’S
CONTENTIONS
:
[17] The first respondent
contends that the conclusion of an agreement,
such
as the present,
by
an organ of state for the supply of municipal services amounts to
administrative action. Accordingly,
it
is reviewable in terms of PAJA and it does not matter that the party
seeking the review, is the organ of state responsible for
the
decision. In view of the application for the review and setting aside
not having been brought by the applicant within 180 days
of the
aggrieved act, that is the conclusion of the agreement, the first
respondent contends that the present review is out of
time in terms
of s 7 of PAJA and the application falls to be dismissed.
[18] Alternatively, the
first respondent contends that the applicant’s failure to
timeously challenge the alleged non-compliance
with s 217 and it
performing in terms thereof for a period of four years validated
whatever formalities may not have been complied
with at the time of
its conclusion, and precludes the applicant from the relief it
claims.
DISCUSSION
:
[19] As much as the
absence of a supply chain management policy does not mean that an
organ of state, like the applicant, would
have carte blanche to
contract in whichever way it wants, but that it still had to comply
with a process designed to ensure a transparent,
cost effective and
competitive tendering process in the public interest, likewise the
applicant cannot improve its position beyond
what it would have been
had there been such a policy. If it had such a policy, then pursuant
to regulation 36, it could dispense
with the official procurement
process where a particular service was only available from a single
provider, or,if it was impractical
or impossible to follow the
official procurement processes due to exceptional circumstances.
Considerations such as that the first
respondent was the only service
provider for the kind of services required at the time that the
contract was concluded in that
area, or that there were other reasons
making it impracticable or impossible to follow the official
procurement process, would
in my view be relevant considerations in
deciding whether a particular procurement process that was followed
nevertheless met with
the Constitutional imperative of transparency,
cost effectiveness and competition.
[20] Having elected to
argue the matter on the papers, at least initially, the applicant was
bound by the version of the First Respondent
12
in the event of any
material dispute of fact.
[21] In paragraph 27 of
the answering affidavit the deponent states that:
‘
I
respectfully submit that the nature and extent of the services being
supplied by the First Respondent were not available from
or offered
by any other “supplier” in KwaZulu-Natal: indeed there
was to my knowledge no other supplier of such services
in the
province at that time nor is there any such supplier at present. It
was accordingly impractical or impossible to follow
a public process
of competitive bidding. The relationship between the First Respondent
on the one hand and the Applicant, The SABS,
the community (including
all persons residing in the villages and on the farms), the
communications system being well established
and in place, and the
spirit of mutual understanding, trust, and co-operation between the
First Respondent and the numerous entities
with whom it deals on a
daily basis, on the other hand, has developed over the years and is
an essential element in the success
of the First Respondent’s
performance of its obligations.’
[22] On that evidence I
am by no means persuaded that the process adopted was necessarily not
in compliance with the Constitutional
injunction, having regard to
the specialised nature of the services and the remoteness and
locality of the applicant’s municipaldistrict.
[23] In reply,
the current municipal
manager of the Applicant, who was also the deponent to the founding
affidavit and who on her own version does
not have personal knowledge
of the circumstances which prevailed at the time of the conclusion of
the agreement
13
(although
in reply her version is now sought to be confirmed by
inter
alia
Mr
Gwacela and a Ms McAlister), states that:
‘
12.2 It is,
with respect, artificial to contend that there was no other supplier
of this service in the province at the time. Had
a public process
been initiated, service providers from throughout the province would
have been afforded the opportunity to tender
for the work. From the
inquiries conducted by the Applicant, there are at least two firms
which had and have the capacity to perform
the services provided for
in the agreement. These are KZN Rural Metro Emergency Management
Services (Pty) Ltd. and Aurecon’.
[24] This allegation
falls short of stating that these entities were providers,
or at least were
potential interested providers of the services to the applicant at
the time of the conclusion of the agreement.
[25] However, even
assuming in favour of the applicant that a genuine dispute of fact
arises in this regard which would otherwise
require this issue to be
referred to oral evidence, it seems to me that the application falls
to be dismissed on other grounds.
DID THE AWARD OF THE
CONTRACT CONSTITUTE ADMINISTRATIVE ACTION TO WHICH PAJA APPLIES?
[26] It is trite law that
the award of a contract for services by an organ of state, such as
the applicant, constitutes administrative
action.
14
[27] Section 1 of PAJA
defines ‘administrative action’ as meaning
‘
any decision
taken or any failure to take a decision, by –
an organ of state, when –
Exercising a power in terms of the
Constitution or a Provincial Constitution;
Exercising a public power or
performing a public function in terms of any legislation;
…
which adversely affects the rights of
any person and which has a direct, external legal effect, but does
not include
(aa) …’.
15
[28] Mr Gani has
emphasized the requirement in the definition that the decision must
‘adversely affect the rights of any person.’
He also
referred to s 3(1) which requires that ‘administrative action
which materially and adversely affects the rights or
legitimate
expectations of any person must be procedurally fair’. He
submitted that PAJA does not apply to the present situation
because
an organ of state can never take its own decision on review in terms
of PAJA, its remedy being confined to a declaration
that whatever it
did, failed to comply with the principle of legality. He maintained
that the exercise of a public power by an
organ of state would be
reviewable at the instance of the organ of state in accordance with
the principle of legality, but at common
law and not in terms of
PAJA.
[29] Section 6(1) of PAJA
provides:
‘
(1) Any
person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action’.
The power to institute
review proceedings does not appear to be limited only to those
persons at the receiving end of some administrative
action by an
organ of state.
[30] Administrative
action, in the form of the conclusion of an agreement with an
external service provider, where the external
service provider is
required to change its circumstances, for example employ staff or
invest in particular equipment in order to
comply with its
contractual undertakings, will adversely affected the rights of the
other contracting party, in
casu
the first respondent, should
the view later be adopted by the organ of state, even if with the
benefit of hindsight and in retrospect,
that the validity of such
agreement might be suspect because of the failure to comply with some
aspect of a procurement. This would
seem to satisfy the requirements
of s6 of PAJA.
[31] The rights of the
organ of state would also be affected adversely. I can see no reason
in principle why the particular organ
of state, in
casu
the
applicant, which had concluded an agreement, which creates on going
contractual obligations in circumstances where it should
not have
done so because of constitutional prescriptions regarding
transparency in procurement, would not be affected adversely
by such
invalid decision. The adverse affect would also extend to its
constituents whom it represents.
[32] In my view the
conclusion of the agreement supported by the council resolution No
117 would constitute administrative action
also for the purposes of
review in terms of PAJA, even although it might not always fit in
comfortably with some of the provisions
in PAJA.
[33] Section 6(1) refers
to ‘any person’ being entitled to institute proceedings
for judicial review of administrative
action. It might seem unusual
and might require an amendment to the usual review process that is
followed, in that the organ of
state if itself seeking the review,
obviously would not call
upon itself to produce the record in accordance with Rule 53,
but would presumably make
the full record available in its application. But that
per
se
is
not sufficient to exclude the application of PAJA to such a
situation. Counsel were unable to refer me to any case authority
on
this aspect.
16
[34] As much as the
position might appear somewhat unusual, it would seem to offend
against the principles of equality and fairness
if in the context of
a contract concluded with an organ of state,
a
party other than the organ of state itself who might be adversely
affected by the contract being declared illegal would be limited
to
the 180 day limitation in s 7, which provisions has as its purpose
administrative certainty, but that the same administrative
certainty
must yield to any time beyond the 180 days, to the prejudice of the
other contracting party, if it was held that the
same transaction did
not amount to administrative action and/or was not reviewable in
terms of PAJA but simply at common law, because
it is sought to be
impeached by the particular organ of state.
[35] If I am correct in
that regard, then s 7 of PAJA would preclude the present review. In
this respect Mr Gani was critical of
PAJA being invoked as he said
this was not raised squarely by the first respondent in its answering
affidavit. Although it could
have been raised more pertinently and
expressly, it seems to me that the allegations in the answering and
supplementary affidavit,containing
references to an ‘administrative
act’ and ‘to set aside an invalid administrative
act’certainly suggested
the possible application of the
provisions of PAJA. But in any event, the factual allegations were
sufficient to allow a challenge
in terms of PAJA, as it simply
involves the application of a statutory provision for which an
adequate factual basis has been laid
in the affidavits.
THE UNDUE DELAY RULE
[36] However, even if I
am wrong in that regard and an organ of state in seeking relief
claiming the declaration of the invalidity
of its own administrative
action is not reviewable in terms of PAJA, then it certainly would
seem to be a review at common law
based on the principle of legality,
as contended by Mr Gani.
[37] The principle of
legality is to be found in s 1(c) of the Constitution which refers to
the ‘supremacy of the Constitution
and the rule of law. Section
167(7) of the Constitution provides that ‘a constitutional
matter includes any issue involving
the interpretation, protection or
enforcement of the Constitution’.
[38] Deciding whether a
particular agreement is in conformity with s 217 of the Constitution
concerns the interpretation and enforcement
of the Constitution.
[39] Thus being a
constitutional matter, s 172 of the Constitution finds application.
It provides,
in dealing with the powers of a
court in a constitutional matter that:
‘
(1) When
deciding a constitutional matter within its power, a court –
…
; and,
may make any order that is just and
equitable, including –
…
; and,
…’
.
[40] Assuming, in favour
of the applicant that the agreement wasconcluded in breach of s 217,
the question remains
whether,because of the time that has elapsed since it was
implemented, it should be set aside
17
.
[41] At common law the
application of the so called undue delay rule
18
required a two stage
enquiry. First, whether there was an unreasonable delay and, second,
if so, whether the delay should in all
the circumstances be
condoned
19
.
Whether or not the
decision was lawful, no longer matters. If the rule applies, the
otherwise ‘unlawful’ decision has
been ‘validated’
by the delay
20
.
The rationale underlying the rule is the inherent potential for
prejudice, both to the efficient functioning of the public body
and
to those who rely upon its decisions
21
.
[42] In this regard a
court has a discretion. Scott J A in
Chairperson:
Standing Tender Committee v J F E Sapela Electronics (Pty) Ltd. and
Others
22
held:
‘
In
appropriate circumstances a court will decline, in the exercise of
its discretion, to set aside an invalid and administrative
act. As
was observed in
Oudekraal
Estate (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA) para 36 at 246D: “It is that discretion
that accords judicial review its essential and pivotal role in
administrative
law, for it constitutes the indispensible moderating
tool for avoiding or minimising injustice when legality and certainty
collide:
A typical example would be the case where an aggrieved party
fails to institute review proceedings within a reasonable time. See
eg
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A);s 7(1) of PAJA which gives statutory recognition [and
definition] to this rule.In a sense, therefore,the effect of delay is
to “validate” what would otherwise be a nullitysee
Oudekraal
Estate (Pty) Ltd
(
supra
)
para 27 at 242E-F. In the present case, as I have found,there wasno
culpable delay on the part of the respondents. But the object
of the
rule is not to punish the party seeking the review. Its
raison
d’etre
was said by Brand JA in
Associated
Institutions Pensions Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA) ([2004]
4 All SA 133)
at para 46 to be twofold:
“First, the failure to bring the review within a reasonable
time may cause prejudice to the respondent.
Secondly, there is a
public interest element in the finality of administrative decisions
in the exercise of administrative functions.”
Under the rubric
of the second I would add considerations of pragmatism and
practicality.’
[43] The delay before any
steps were taken to impeach the agreement has been unreasonably long.
The contract has been implemented
by both parties from their
respective sides over a period of more than four years. It has
lessthan a year to run. The parties have
changed their positions to
comply with its terms.To review and set the agreement aside now,
would be highly prejudicial and would
undermine the finality of
administrative decisions. The applicant only has itself to blame for
this delay. In those circumstances
the delay should not be condoned.
Considerations of pragmatism and practicality persuade me regardless
to the other arguments,
to exercise my discretion against the grant
of the relief claimed. On that basis too, the application falls to be
dismissed.
ORDER
:
[44] The Application is
dismissed with costs.
________________________
DATE OF HEARING: 3/9/13
DATE OF DELIVERY:
30/10/13
APPLICANT’S
COUNSEL: H S GANI
APPLICANT’S
ATTORNEYS: MATTHEW FRANCIS INC.
Tel.: 087 351 0606
(Ref.: Y
Maharaj/DP/05K009001)
RESPONDENT’S
COUNSEL: A DE WET S C
FIRST RESPONDENT’S
ATTORNEYS:
C/O McCARTHY &
ASSOCIATES
SECOND RESPONDENT’S
ATTORNEYS:
C/O NGCOBO POYO
DIEDERICKS
1
If
the main relief is not granted then the consequential relief falls
away.
2
The
copy of that resolution attached to the papers was apparently only
signed much later on 11 January 2013 by the deponent to
the founding
affidavit, the current municipal manager. She was patently not the
municipal manager at that time. The applicant
contends that this
written agreement was preceded by a verbal agreement concluded
between the applicant’s municipal manager
at the time Mr S P
Gwacela during 2008 with a Mr John Pearce of the first respondent.
The first respondent denies that any such
verbal agreement was
concluded. The applicant contends that the effective date of that
oral agreement was 1 July 2008 and that
it commenced making payment
of an agreed monthly amount of approximately R28 000 to the
first respondent as from 1 July
2008. This agreement, it says, was
one in terms of which the first respondent would be appointed as
service provider by private
treaty for an initial period of 3 years
commencing on 1 July 2008 and subject to certain automatic renewal
periods to operate
thereafter. The deponent to the founding
affidavit however states that ‘the applicant is unaware of the
precise facts and
circumstances in which the agreement was
concluded’. She however continues that Mr Gwacela was then
authorised by the council
of the applicant ‘to sign a written
service level agreement with the first respondent (presumably
because the understanding
was that the verbal agreement would be
reduced to writing) and refers to the resolution of 28 October 2010
in support thereof.
Nothing appears to turn on this alleged oral
agreement, which in any event is denied by the first respondent, and
which version
is to prevail in accordance with the rule in
Plascon
Evans Paints Ltd v Van Riebeeck Paints Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
3
Act
32 of
2000
4
Act
56
of 2003 (hereinafter referred to as ‘the MFMA’).
5
Act
5 of 2000.
6
Loghdey
v City of Cape Town and others: In re Advanced Parking Solutions
2010
(6) BCLR 591
(WCC) para [6],
Sanyathi Civil Engineering &
Construction (Pty) Limited and another v eThekwini Municipality and
others
[2012] 1 All SA 200
(KZP) at para [27].
7
In
such an event, the regulations require that the accounting officer
must record the reasons for any deviations in terms of
sub-regulation 1(a) and (b) and report them to the next meeting of
the council, or board of directors in the case of a municipal
entity, and include as a note to the annual financial statements.
8
2010
(1) SA 356
(SCA) at para 13.
9
See
s 80(1)(a) read with s 83 of the Local Government: Municipal Systems
Act.
10
Bio-Energy
Afrika Freestate v Freedom Front Plus
2012 (2) SA 88
(FB) at para
8.
11
Act
3 of 2000.
12
Plascon
Evans Paints Limited v Van Reebeck Paints
(supra) footnote 1.
13
The
evidence of the First Respondent in the answering affidavit was that
she was only appointed as municipal manager during November
of 2012.
14
See
Steenkamp NO v Provincial Tender Board Eastern Cape
2007 (3)
SA 121
(CC).
15
These
exclusions are not relevant to the present application.
16
See
however,
Pepcor Retirement Fund and Another v
Financial Services Board and another
[2003]
3 All SA 21
(SCA) and
Ntshangase v MEC:
Finance Kwa-Zulu Natal and another
2010
(3) SA 201
(SCA) in this regard.
17
Whether
at common law or in terms of s172 (1)(b) as ‘just and
equitable’.
18
See
Gwetha v Transkei Development Corporation Limited and Others
2006 (2) SA 603
(SCA) para [22] to [23].
19
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA) para [47].
20
Opposition
to Urban Tolling Alliance and Others v The South African National
Roads Agency Ltd and Others
(90/2013)
[2013] ZASCA 148
(9
October 2013)
21
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) para [23].
22
2008
(2) SA 638
(SCA) at para28.