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[2012] ZANCHC 5
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Tsantsabane Municipality v Thabula Trade & Investemnt (Pty) Ltd and Another (1114/06) [2012] ZANCHC 5; [2012] 4 All SA 219 (NCK) (18 May 2012)
33
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern CapeHigh
Court, Kimberley)
Case No: 1114/06
Heard: 19/03/2012
Delivered:
18/05/2012
In
the matter between:
TSANTSABANE
MUNICIPALITY
….........................................
Appellant
v
THABULA
TRADE& INVESTMENT (PTY) LTD
….............
1
st
Respondent
THE
REGISTRAR OF DEEDS, KIMBERLEY
….................
2
nd
Respondent
Coram: Kgomo JP;
Olivier J et PakatiAJ
JUDGMENT: FULL COURT
KGOMO JP
The appellant,
Tsantsabane Municipality, isa legal persona established in terms of
the provisions of s2 of theLocal Government:
Municipal Systems Act,
32 of 2000, with its administrative municipal offices situated in
Postmasburg, Northern Cape. The first
respondent,Thabula Trade and
Investments (Pty) Ltd (Thabula Trade), is a duly registered and
incorporated private company with
itsprincipal place of business at
No 3 Blinkklip Street, Postmasburg. The second respondent, the
Registrar of Deeds, abided the
decision of the court a quo and is
nominally before this court and will attract no further mention,
order or costs.
The appellant
municipality sought an order to thefollowing effect from Mabuse AJ
(as he then was) in the Northern Cape High Court:
That the two agreements
between Tsantsabane Municipality and Thabula Trade and Investments
(Pty) Ltd dated 09 December 2005 and
15 December 2005 (ostensibly in
respect of the same immovable property) be declared null and void and
of no force and effect; with
the costs to follow that result. Mabuse
AJ dismissed the application with costs.
This appeal serves
before us with the leave of the Supreme Court of Appeal on petition.
The municipality raises five grounds of
appeal (marked A-E) which I
will paraphrase and deal with seriatim hereinafter. The translation
throughout is mine. The appeal
succeeds on all five grounds raised,
each of which is dispositive of the case. However, I have elected to
deal with all the grounds
for the benefit of the parties to
ascertain where and why they went wrong or acted inappropriately. It
is also important for
the appellant to know who amongst its
functionaries committed what malfeasance and what corrective or
punitive measures, if any,
to institute.
A.
FIRST GROUND
OF APPEAL
:
That the court a quo
misdirected itself in not having found that the purchase agreement
which reflects the purchaser as Thabula
Trade Investment (Pty) Ltd
was not the same persona or entity in respect of which the
municipality took a resolution to sell the
property to
.
[4] On 28 April 2005
the appellant’s municipal council took the following
resolutions:
“
54.5 PROPOSAL
FOR THE DEVELOPMENT OF THE GOLF COURSE: Postmasburg: resolved:
54.5.1 that an
in-principle approval is granted to sell the golf course (golfgronde)
to Ms M Mokgoro and Ms S De Bruin;
54.5.2 That the
Technical Officer make a determination of the expenditure required
for the restoration of the golf course. This
must be carried out
before the purchase price is fixed.
54.5.3 That in light
thereof that vandalism of the golf course escalates by the day and
due to lack of supervision that, in the
interim, the golf course be
leased to MsMokgoro and Ms De Bruin until the purchase price has been
finalized;
54.5.4 That the rental
for the lease be dealt with administratively.”
[5] Pursuant to the
aforegoing the two purchase agreements were
purportedly
entered
into
ostensibly
in
respect of the same property.
1
What is immediately
apparent is the discrepancy between the identity of the individuals
whothe appellant resolved to sell the property
to (MsMokgoro and Ms
De Bruin) and the entity the municipality contracted with (first
respondent /Thabula Trade and Investment
(Pty) Ltd).
[6] Mabuse AJ dealt
with this incongruity in these terms in rejecting the identity
contention issue (the current ground of appeal)
raised on behalf of
the municipality:
“
15. Another
burning issue which was the straw that broke the camel’s back
was the identity of the purchasers. According to
the applicant’s
counsel, this difference in the name of the purchasers is indicative
of the fact that the identity of the
purchasers is in dispute.
According to the original resolution, the purchasers were Ms M
Mokgoro and Mrs De Bruin. These are the
people to whom the property
would have been leased for the purposes of preventing vandalism.
According to the advertisement in
the Ghaap [newspaper], the property
was sold to Pure Gholf and Country Resort. According to the minutes
of December 2005 the name
reflected is “Pure Gholf and Country
Resort”. Both agreements reflect the purchasers’ names as
Thabula Trade
and Investment (PTY) Ltd.
16. Clearly there is
a serious dearth of detail regarding the transition of the purchasers
from one name to the other. Counsel for
the applicant argued that De
Bruin and Mokgoro, and not Thabula Trade and Investment (Pty) Ltd,
should have signed the agreement
as purchasers, simply so because the
resolution mentioned their individual names. On the other hand, the
first respondent’s
counsel argued, and I agree fully with this
argument, that there was no mistaken identity with regard to the
identity of the purchaser.
17. It is correct
that there was no mistake whatsoever with regard to the identity of
the purchasers. The applicant’s counsel’s
argument
regarding the purchaser(s)’ identity seems to have no factual
basis. The applicant knew at all material times the
identity of the
people it was dealing with. This point clearly finds support in the
absence of any objection by the applicant,
which, in my view, should
have been raised before it signed the agreement, against the name of
the purchasers as it appeared in
the agreements. By signing the
agreements with the name appearing clearly on them was an unequivocal
acknowledgement of the correctness
of the purchaser’s names. In
signing the agreements in that form the applicant expressed, in no
uncertain terms, the names
of the purchaser it was prepared to deal
with. After all, the agreements were prepared by the applicant’s
then legal representatives
at the behest of the applicant.
18. Furthermore, it
is clear that the purchasers, no matter what they chose to call
themselves, were at all material times the same
people who were named
in the initial resolution. The applicant had no control over the
names that MsMokgoro and Mrs De Bruin chose
to call their
association. In my view,
it was sufficient if the said
people who had been named in the initial resolution were the
constituent members of a concern that
purchased the property from the
applicant
. In the papers, the first respondent is styled
“THABULA TRADE AND INVESTMENT (PTY) LTD” (herein
represented by Sophia
Regina De Bruin she being duly authorized
hereto). Accordingly there is no merit in the applicant’s
counsel’s argument
over the identity of the
purchasers.”
(Emphasis added).
[7] The court a quo’s
approach and analysis are erroneous. It is trite that the identity of
parties to a written contract
of sale of immovable property is an
essential term. Consequently, parole evidence is ordinarily not
admissible to vary the provisions
of a written agreement of the
alienation of land. If there is no ambiguity in the terms of the
agreement and no fraud or other
impropriety is alleged then the
interpretation has to be confined to the written instrument. In both
contracts (of 09 December
2005 and 15 December 2005) the following
clause is inserted:
“
This Deed of
Sale constitutes the entire Agreement between the parties and no
modification, variation or alteration thereto shall
be valid unless
in writing and signed by both parties hereto.”
[8] If, therefore,
parole evidence has to be excluded to give effect to the aforequoted
clause then, in that event, the municipal
council resolution
identifying MsMokgoro and Ms De Bruinas the potential purchasers must
be disregarded in favour of the substitution
of Thabula Trade &
Investment (Pty) Ltd in their place, particularly as the company is
also the respondent in this matter.
However, the court a quo
overlooked the fact that it is the appellant municipality itself
thatimpugns the contracts and contends
that their signing was
attended by illegality, irregularity or even fraud. The evidence on
this aspect will be alluded to in the
course of this judgment.
[9] The following
(previously emphasized) statement by the court a quo is mistaken:
“
It was
sufficient if the said people who had been named in the initial
resolution were constituent members of a concern that purchased
the
property from the applicant.”
A company, of course,
is a legal persona and has a separate and distinct existence from its
members or shareholders. MsMokgoro and
Ms De Bruin may be directors
of Thabula Trade but they are not Thabula Trade and vice versa. See
Levin v Drieprok Properties
(Pty) Ltd 1975(2) SA 397(A)
at 397 – 398 where the headnote read in part and captures the
essence of the principle:
“
It
is a cardinal principle of the law of contract that a simple
contractual offer made to a specific person can be accepted only
by
that person. Where the offer is contained in an option to purchase
granted for a specific time, however, or is made expressly
assignable
or is directed to the public generally, different considerations may
apply. Even where the offer is made, and intended
to be made, to a
specific person, the identity of the offeree may be a matter of some
controversy. The person to whom the offer
is addressed need not
always be the person to whom it was intended to be made. In this
process of interpretation the aim is to
ascertain the intention of
the offeror, as reflected in the terms of the offer and any other
admissible evidence. In cases where
the offer is contained in a
written document the extraneous evidence that may be taken into
consideration will be circumscribed
by the rules relating to the
admissibility of parol evidence; and where the written offer relates
to a sale of land to which the
provisions of section 1 of Act 68 of
1957 (or, in the case of contracts concluded after 1 January 1970,
the provisions of section
1 of Act 71 of 1969) apply, the requirement
that the essential terms of the sale, including the identity of the
parties, must appear
ex facie the writing may also limit the
admissible evidence ---.
In an appeal the
main basis for his claim advanced by the appellant, as in the Court a
quo, was (1) that the offer had been made
to W personally; (2) that
this offer had not been accepted by W in his personal capacity; (3)
that neither D nor anyone else had
authority to alter the offer and
convert it into one made to the respondent company; (4) that the
offer was not made to, and therefore
not acceptable by, respondent;
(5) that consequently respondent's purported acceptance of the offer
had not brought a contract
into existence; and (6) that, accordingly,
no valid cause existed for the payment of the deposit or for its
retention by respondent.
Held, that the
offer, as originally subscribed by the appellant, had not been open
for acceptance by the respondent company.
Held,
further, that, on the evidence, the alteration made to the offer,
which converted it into one apparently open for acceptance
by
respondent, could not be said to have been authorised by appellant;
nor had appellant been shown to have subsequently ratified
the
alteration.
”
On the First Ground
(Ground A) I find that the contract was not entered into between the
potential purchasers approved by the municipal
council and the
purported purchaser (Thabula trade & Investments (Pty) Ltd who
signed the contract.
This finding must not be viewed in isolation
but with the rest of the findings that follow hereafter.
B.
SECOND GROUND
OF APPEAL:
That the court a quo
misdirecteditself in not having found that the property proposed to
be sold was not sufficiently or properly
identified and that there
was a material difference in the “golf course and the
development onErf 1, Postmasburg”(“golfgronde
en die
ontwikkeling op Erf 1, Postmasburg”).
[10] It need to be
borne in mind that in neither the contract of 09 December 2005 nor
that of 15 December 2005 is any reference
made to “Erf 1,
Postmasburg”, or to any Erf, Plot or Stand number. In the first
contract (of the 9
th
December) the property is identified
as: “The Old Golf course and Horse Racing Facility
(Perdebaan)”; whereas in the
second contract (of the
15
th
December) the property is merely described as: “The
Old Golf Course.”
It will be recalled
that the municipal council resolution of 28 April 2005 (para 4 above)
stipulated that onlythe golf course (golfgronde)
be sold. There is no
mention of the sale of theRace Course Facility (perdebaan) as well.
[11] What obfuscates
matters is that ex facie either contract it cannot be determined what
area (the size) the race course occupies
and what the size or extent
of the golf course is. In fact on the papers the first mention of
“Erf 1, Postmasburg”
comes to light on 19 July 2006, some
eight months after the signature of the contract, when someone writes
on behalf of the acting
municipal manager to Nel Cross &
Partners, Kuruman, as following:
“
Council
resolution Item RV 148/2005. You are hereby informed that the council
approved that the golf course (golfgronde) be sold
and for it to be
surveyed and that the purchaser will be liable for the payment of the
surveying.
You are accordingly
appointed to conduct the surveying of a portion of Erf 1 (‘n
gedeelte van Erf 1”) situate at Postmasburg,
known as
Postmasburg Golf Club.” In
Vermeulen v Goose Valley
Investments (Pty) Ltd
2001(3) SA 986 (SCA) at 996 I –
997(A) para 6 the Court held:
“
[6]
The principles to be applied in considering the first question raised
by the exception are well settled. 'The test for compliance
with the
statute, in regard to the res vendita, is whether the land sold can
be identified on the ground by reference to the provisions
of the
contract, without recourse to evidence from the parties as to their
negotiations and consensus.' So said Holmes JA in 1971
in Clements v
Simpson
1971
(3) SA 1
(A)
at
7F - G and there has been no departure from that approach.
On
the contrary, it has been reaffirmed on a number of occasions by this
Court, most recently, in Kriel and Another v Le Roux 2000
(2) B All
SA 65 (A) at 67i.
”
[12] The court a quo
dismissed the argument that the property or merx was not properly
identified in these terms:
“
[19] The
applicant has created and developed a storm around the description of
the property. According to the resolution of 28 April
2005, the
property in question is “die golf grond”. According to
the advertisement in the Ghaap newspaper, the property
that was
advertised for sale was “a portion of the Gholf Grounds”.
Item Tk 104/2005 refers to “vervreemding van
die gholfgronde”.
The agreement that was signed on 9 December 2005 referred to the
property as “the old golf course
and horse racing facility
(Perdebaan). The agreement signed on the 15 December 2005 refers to
the property as “the old golf
course”.
[20] According to
counsel for the first respondent, the description or rather identity
of the property that the applicant was selling
and purchasers were
purchasing was never an issue. The fact that, in the course leading
to the signing of the agreements the property
was, in various
correspondence, called by many different names, does not necessarily
mean that the parties were confused as to
the identity of the
property that constituted the subject matter of their agreement. It
is important that the parties should agree
as to what they were
transacting about. It is equally important that the parties should
have been in a position to identify the
relevant property. It is, in
my view, unreasonable to expect laymen to describe, in their
correspondence, with any precision the
immovable property as if they
were trained minds. It must be recalled that the applicant was, at
the council meeting that took
the resolution, not drawing the papers
for lodgment in the deeds office. Again, it makes no sense for the
applicant to sign the
agreement and thereafter complain that it did
not know the property it was selling. The applicant itself furnished
its then legal
representatives with the relevant details who then
drew up the agreement based on such details.”
[13] Based on the
factors dealt with on this aspect I am of the view that the court a
quo got it wrong oncemore. In
Johnson v Leal
1980(3) SA
927(A) at 937 G the court per Corbett JA held:
“
It
has been held - and in my opinion correctly so - that what s 1 (1),
or its predecessors, require is that the whole contract of
sale, or
at any rate all the material terms thereof, be reduced to writing
(see Joubert v Steenkamp
1909 TS 169
at 171; Coronel v Kaufman
1920
TPD 207
at 209, 210; Veenstra v Collins
1938 TPD 458
at 460; King v
Potgieter
1950
(3) SA 7 (T)
at
10 and 14 and the cases there cited; Jammine v Lowrie
1958
(2) SA 430
(T)
at
431; Meyer v Kirner
1974
(4) SA 90 (N)
at
97G - 98D). It is not necessary that the terms of the contract be all
contained in one document, but, if there are more than
one document,
these documents, read together, must fully record the contract (see
Coronel v Kaufman (supra at 209); Meyer v Kirner
(supra at 97E - F)).
The material terms of the contract are not confined to those
prescribing the essentialia of a contract of
sale, viz the parties to
the contract, the merx and the pretium, but include, in addition, all
other material terms (see King v
Potgieter (supra at 14C); Meyer v
Kirner (supra at 97 - 9)). It is not easy to define what constitutes
a material term ---. It
is also not necessary in this case to
consider at any length the degree of precision with which the writing
must set forth the
terms of the contract, particularly the
essentialia, in order to comply with s 1 (1), since this is not an
issue which arises here.
Generally speaking these terms - and
especially the essentialia - must be set forth with sufficient
accuracy and particularity
to enable the identity of the parties, the
amount of the purchase price and the identity of the subject-matter
of the contract,
as also the force and effect of other material terms
of the contract, to be ascertained without recourse to evidence of an
oral
consensus between the parties
”
In the result I am
satisfied that the property that formed the subject-matter of the
sale was not sufficiently identified.
C.
THE THIRD
GROUND OF APPEAL:
That the court a quo
erred in not having found that the contract did not comply with the
provisions of
s2(1)
of the
Alienation of Land Act, 68 of 1981
.
[14] In this regard I
will focus principally on the price of the property proposed to be
sold. In the first contract (of the 9
th
December) the “Old
Golf Course and Horse Racing Facility (Perdebaan)” is sold for
the amount of R100 000-00 (One
Hundred Thousand Rand) but the
admittedly reduced merx, “The Old Golf Course,” is sold
as follows:
“
2.
PURCHASE
PRICE
The purchase price
in respect of the property is the amount of R350, 000.00 (three
hundred and fifty thousand Rand) as follows:
2.1 See annexure A
part of Deed of Sale which forms part of the conditions of sale of
the said property and is therefore included
in this document.
2.2 This is a cash
---------[illegible] will be submitted within 30 days of award.”
[15] We enquired from
Mr Burger SC, for the first respondent (Thabula Trade), which of the
two contracts his client relies on and
why, in view of the many
discrepancies ( the dates of signatures; the identity of the merx;
the price of the merx; the absence
of conditions of sale in the first
contract and the incorporation of conditions via an annexure “A”
in the second etc).
After much ambivalence he settled for the second
contract (of 15 of December 2005).
[16] The “why”
Thabula Trade settles for the second contract was not easy for
counsel to explain. One reason advanced
by Mr Burger was that the
municipal council resolved that only the Old Golf Course be sold and
not the Old Golf Course and Horse
Racing Facility as reflected in the
first contract (of the 9
th
of December). The truth lies
elsewhere.
[17] Mr James Mapanka,
the acting municipal manager, who deposed to the founding affidavit
on behalf of the appellant municipality
explains and Mr Daniel Beukes
(aforementioned) and the other deponents on behalf of the appellant
confirm that:
17.1
MrThataetsileMotsoare, who purported to sign both contracts on behalf
of the municipality, did not have the authority to sign
these
contracts because he was neither the municipal manager nor the acting
municipal manager at that stage. Mr James Sadie was
the municipal
manager.
17.2 On 16 February
2006 MrMotsoare presented the first purchase agreement (of
09/12/2005) to MrBeukes, the municipal financial
manager, and
requested him to issue a clearance certificate (that all rates, taxes
etc) have been paid and without which transfer
of ownership would not
be carried out). MrBeukes refused to issue the clearance certificate
because he suspected foul play in the
following respects:
(a) MrMotsoare was not
the authorized person to have signed the first contract (of 09
December 2005);
(b) None of the
conditions thatMrBeukes proposed were incorporated in this first
contract;
(c) The price of
R100 000-00 was ridiculously low because “the improvements
on the golf course exceeded R3 million and
the construction of the
road caused about R2 million.” This is the first time it is
made known that the golf course (now
referred to as Erf 1) is 6273.8
hectare in size and that a conservative estimate of its marked value
is R 9 million;
(d) The determined
price has not been referred back to the municipal council for debate
and approval. This point is particularly
important if it is
juxtaposed with the fact that the resolution by the municipal council
merely authorized the “Technical
Officer [to] make a
determination of the expenditure required for the restoration of the
golf course” and that “this
must be carried out before
the purchase price if fixed.” Only “the rental for the
lease [had to] be dealt with administratively.”
(e) The agreement was
not embodied in the standard contract used by the municipality. In
addition the Postmasburg firm of attorneys
that usually does this
type of work (conveyancing) for the municipalitywere overlooked in
favour of a firm outside the province.
The opening clauses of the
standard contract stipulate:
“
GETUIG: Die
Verkoperverklaarhiermeedathyaan die Koperverkoop, en die
Koperverklaardathy van die Verkoperkoop;
SEKERE:
gedeeltegrondsyndeerfnommer ………, geleë in
die regsgebied van die Munisipaliteit, uitbreiding
………………………………………………………………………
GROOT:
……………………………………………………………………..
enwat die
MunisipaliteitkragtensTransportakte/SertifikaatvanGeregistreerdeTitel
Nr ………………..
hou, op die
volgendeterme en voorwaardes:
1. Die Koper is
gebinddeur die voorwaardes van voornoemdeTransportakte of
Sertifikaat.
2. Betaling van die
koopprys van R ……………. plus
Belasting op ToegevoegedeWaarde teen standardkoerssal
in
kontantgeskiedvoor of teen registrasie van transport van die eiendom
in die Koper se naam.”
This is followed by
some 14 further conditions. The standard form is clearly designed for
the municipality. At the end of the contract
provision is made for
the signature of: “MunisipaleBestuurder.” However in both
contracts signed by Motsoare there
is no provisions for the
“MunisipaleBestuurder” to sign. They merely require the
“seller” to sign. Whereas
the utilization of this
standard contract is not compulsory or a legal prerequisite the use
thereof would certainly have eliminated
most of the shortcomings that
now call the validity of the contracts into question. For example the
proforma made provision for
“erfnommer”, “groot”
(i.e. size), “voorwaardes” (conditions),
“TransportakteTitel Nr”
etc.
[18] The appellant’s
case through its depondents or some of them is that it is in the main
the hurdles listed in para 17 (above)
that gave rise to the second
contract (of 15 December 2005) and that MrMotsoare and Mr G GMakape
were pursuing a frolic of their
own for unstated motives. It must be
noted that the second contract does not state that the first contract
has been withdrawn,
or cancelled or novated or rectified. Mr W
Coetzee, for the appellant, contended, quite understandably, that it
is by virtue of
this unexplained two prongs adopted by Thabula Trade
that the annulment of both contracts is sought.
[19] The appellant
states that a day or so after MrBeukes refused to issue a clearance
certificate (namely on 17 February 2006)
MrMotsoare presented the
second contract to MrBeukes with the purchase price now escalated
from R100 000-00 to R350 000-00
and incorporated the
so-called new conditions (set out in para 14 above).
[20] A municipal
councilor, the saidMrMakape, who, it is common cause signed both
contracts as a witness, apparently castigated
MrBeukes on 24 February
for his refusal to issue a clearance certificate. On the same day, it
also common cause,Ms De Bruin paid
in an amount of R11 000-00
outstanding in respect of municipal rates or levies. What is further
common cause is that on this
very date (24 February 2006) MrMotsoare
issued a clearance certificate in his purported capacity as municipal
manager. What is
further common cause is that on the date in question
the incumbent municipal manager, Mr Sadie, was back from leave and on
duty.
[21] MrBeukes was
aggrieved and concerned by the turn of events and reported the matter
to the Provincial Auditor-General and copied
bothMr Sadie, the
municipal manager, and the MEC for Housing and Local Government. On
22 March 2006 the MEC (Mr Van Wyk) wrote
to the Mayor of the
appellant:
“
INVESTIGATION:
POSTMASBURG GOLF CLUB
I have decided to
commission an investigation into the transaction that gave rise to
the sale and transfer of the abovementioned
property by your council
during 2005.
Mr. Maponya and
MsBogatsu from the Legal Services of this Department will be
conducting the investigation.
You are accordingly
required to ensure the availability of the Municipal Manager and all
Senior Managers during the investigation,
which will take place on
the 26 March 2006.”
[22] The mooted
investigation, regrettably, did not take place. The reasons are
unknown. This stagnation gave rise to the court
application in the
Court a quo.
THE RESPONDENTS
VERSION
[23] Ms De Bruin and
MsMokgoro deposed to the opposing affidavits in their capacity as
co-directors of Thabula Trade, the respondent.
They expatiate at
length concerning the lease agreement and the improvements they have
effected on the golf course and/or race
course. Those averments may
probably only be relevant in the event of an annulment of these
contracts. What the consequences are
when a deed of alienation is
void or terminated are set out in
s28
of the
Alienation of Land Act,
68 of 1981
.
[24] What Thabula Trade
states in connection with the lease does give a peek into the reason
why the words “and the racing
facility (perdebaan)” are
omitted from the second contract. Its deponent, Ms De Bruin, states:
“
After the
lease agreement was already operational [from 01 April 2005] Mr
Daniel Ross [a senior administrative officer with the
municipality]
unilaterally leased the portion known as the racing facility
(perdebaan) to small scale farmers.”
Interestingly the lease
is not concluded with Ms De Bruin and MsMokgoro or with Thabula Trade
but with Pure Gold & Country Resort,
an amorphous entity. More
about the latter later.
[25] Ms De Bruin goes
on to say in her statement:
25.1 “
It is
correct that deponent Motsoareapproached deponent Beukes at his
offices on 07 December [2005] to give effect to the resolutions
of
the council decisions of the previous day (on 06 December 2005):
Annexure “TT14” items RV147/2005 and RV 148/2005.
--- A
price was decided at this office for the sale of the golf course.
Beukes suggested a price of R100 000-00. Motsoare
attended in
his capacity as the acting municipal manager.”
25.2 According toMs De
Bruin after the Bloemfontein attorneys had prepared the first
contract of 09 December 2005 for R100 000-00
and after its
signature the following happened:
“
Beukes
reverted to Motsoare and informed him that he was not convinced that
this first contract reflects correctly the resolution
of 06 December
2005 relating to item RV 148/2005. Beukes suggested that the contract
be amended to enable the Administration to
invoke the BEE standard
and pointed out that only the Old Golf Course (Clause 1.1.11) must be
incorporated but the horse race course
should be excluded to accord
with the lease agreement.” And;
25.3 “
The
suggestion by Beukes included in its terms that clause 2 (the
purchase price) be amended and escalated [from R100 000-00]
to
R350 000-00 and that a paragraph be added to read:
‘
2.1 See
Annexure A part of Deed of Sale, which forms part of the conditions
of sale of the said property and is therefore included
in this
document.”’
This Annexure “A”
is non-existent or was omitted from the papers of both parties. No
explanation has been proffered.
[26] The respondent’s
version does not accord with the objective and/or admitted facts,
more particularly the documents at
hand:
26.1 The letter by the
respondent’s attorneys which dispatched the first contract(of
09 December 2005) to respondent is dated
16 February 2006. The
respondent admits this occurrence and explains that the old or first
contract which was dispatched under
cover of the letter of 16
February 2006 “was blootvanweë die feitdatgesegdeprokureur
(AJ Coetzee) van die prokureursfirmaverantwoordelik
was
virtransportering van die eiendom ---.” This date, however,
corresponds with the date on which Beukes saysMotsoare presented
this
contract to him for a clearance certificate.
26.2 Beukes raised all
the queries listed in para17.2 and elsewhere above. He complained
forthwith to the Auditor-General andto
the MEC of Housing and Local
Government and to the municipal manager, Sadie. He refused to issue a
clearance certificate which
Motsoare arbitrarily issued when it was
not his call to make. Beukes could therefore not have advised
Motsoare as De Bruin claimed,
least of all not in the terms she
couched. She is patently trying to protect Motsoare, who acted
grossly irregularly.
I have no hesitation
in rejecting De Bruin’s claim out of hand as inconsistent with
the objective and/or admitted facts regard
been had to the approach
and principles set out in
Plascon
Evans
Paints
Ltd v Van Riebeeck Paints (Pty)
Ltd
1984
(3) SA 623 (A)
at
634E-635C. Neither party claimed that a dispute of fact not soluble
on the papers existed
.
D.
FOURTH GROUND
OF APPEAL
That the court
a
quo
misdirected itself in having found that the manuscript
notes (handwritten notes) which are not contained in the official
[typed]
notes of the appellant municipality and not approved or
confirmed by the council are indeed a council resolution.
[27] The notes in
question superimposed manually by Motsoare, this is common cause,
read as follows:
“
Resolved:
That the objectors
be informed that the council took a resolution that the Golf Course
be sold to Pure Golf and Country Resort and
that the administration
should determine the purchase price on the BEE standard and that Pure
Golf should be notified that it will
be responsible for the
measurements (or the surveying) of the Golf Course and all other
legal costs.”
[28] This manual
postscript, on the version of Thabula Trade, was erroneously omitted
from the minutes and was recorded by Motsoare
at the tail-end of the
council meeting during the temporary absence of Sadie, who allegedly
excused himself as he had a commitment
elsewhere. Inexplicably, this
resolution is no longer that the Golf Course be sold to Thabula Trade
& Investments (Pty) Ltd
but to Pure Golf and Country Resort. It
does not state either that the previous resolution which stated that
the Golf Course was
offered for sale to MsMokgoro and Ms De Bruin is
recalled and that Pure Golf and Country Resort is instituted in their
place. Further,
in the Ghaap newspaper the public is informed that
the council has resolved to sell the property to Pure Golf and
Country Club
and called for objections, if any, to this putative
transaction. What I cannot fathom is that the purchaser with whom the
municipality
purportedly contracted was in the circumstances
nevertheless retained as Thabula Trade & Investments (Pty) Ltd in
both the
impugned written agreements. In my view this bears testimony
to the fact that the respondent was aided and abetted by Motsoare.
They fluffed their lines badly.
[29] Sight should not
be lost of the fact that the resolution of 28 April 2005 (see para 4
above) nowhere authorizes that the purchase
price be determined
administratively. The current suspicious-looking resolution now also
arrogates the fixing of the price to the
municipal administrative
functionaries, one of whom is Beukes. Ironically, Thabula Trade &
Investments now portrays Beukes
as being hostile to their causewho
insists on whatever price is arrived at had to feature before the
municipal council for approval.
ThabulaTrade, per contra to Beukes’s
stand, insists that the need for further council involvement was
obviated by the mandate
given to the administrative functionaries by
the superimposed manual resolution.
[30] Even if an
official was authorized to determine the price, the value of public
property cannot be reduced to a thumbsuck carried
out in an office
even if the statutory provisions discussed in Ground of Appeal Eare
thought away.Some useful guidance can be sourced
by amunicipal
council on property evaluation (in a different context) from
Nel
v Lubbe
1999(3) SA 109 (W) at 111B – 112B. I adapt the
remarks made in this case as follows:
(a) The purpose of
furnishing a sworn valuation of property is to establish the price
that is likely to be realised from the sale
of the property.
(b) A practice has
grown up in the Northern Cape Division (and Gauteng) whereby a sworn
valuation is furnished by an expert witness,
usually, an estate
agent. He expresses an opinion with respect to the price that the
property will fetch. The opinion of an expert
witness is admissible
whenever, by virtue of the special skill and knowledge he possesses
in his particular sphere of activity,
he/she is better qualified to
draw inferences from the proved facts than the municipal officer or
the municipal council.
(c) The council will
look to the guidance of an expert when it is satisfied that it is
incapable of forming an opinion without it.
But the council is not a
rubber stamp for acceptance of the expert's opinion. Evidence by way
of a report must be placed before
the council of the facts relied
upon by the expert for his/her opinion as well as the reasons upon
which it is based. The council
will not blindly accept the assertion
of the expert without full explanation. If it does so its function
will have been usurped.
In the
Nel v
Lubbe
case the Court stated:
“
Not
a single reason is set out in the valuation as to why the sum of R290
000 is the value. In fact, the document is a bald assertion
of value.
The procedure adopted, in my opinion, is hopelessly inadequate. The
proper approach is for the expert to furnish in evidence
the detailed
facts upon which the opinion is based and the reasons for forming the
opinion expressed. Upon hearing the evidence
the Court will come to
its own conclusion, no doubt guided by the evidence.”
[31]
In
WaenhuiskransArniston Ratepayers Association &
Another v VerreweideEiendomsontwikkeling (Edms) Bpk and Others
2011(3) SA 434 (WCC)
at 461J (para 106) the Court found the following manner of value or
price determination to be adequately reliable:
“
[106]
Verreweide and the municipality contended that the requirements of
s
14
of the MFMA had been complied with, inasmuch as the municipality
had followed an extended public process which culminated in the
sale
of the property. During the course of such process the municipality
advertised its intention to develop the property on no
less than
three occasions. The only proposals received were those of the
Arniston Bed & Breakfast & Coffee Shop, Smith
Van Zyl&
Kirby and Dream Fisheries. The best price that could be obtained was
R426 000 (plus VAT), which is indicative of the
fact that this was
its market value. The municipality eventually decided to sell the
land to Arniston Bay Consortium, advertised
its intention to do so,
and considered the objections which were received. Verreweide was
then substituted for the Arniston Bay
Consortium so as to reflect the
correct details of the purchaser.”
[32] In a letter
purported to have been written on 09 December 2005 and date-stamped
15 December 2005 with the “Tsantsabane
Municipal Manager”
official stamp Motsoare writes the following letter (translated) to
Pure Golf Course and Country Club:
“
PURCHASE
OF THE GOLF COURSE: POSTMASBURG: COUNCIL RESOLUTION RV 148/2005.
Your letters dated
19 November 2004 and 29 December 2004 in re the above matter refer.
You are hereby
notified that the Council has approved the sale of the Golf Course to
you, subject to the following conditions:
That the
development of the Park and Golf Course be effected within a period
of 24 months.
That the area
should not be utilized for farming purposes.
That the Council
will be accorded the first option to purchase (or buy back) the
property should you decide to sell it.
That the property
will be utilized to attract tourists as envisaged in your proposed
plan.
That the purchase
price has been fixed at R350 000-00 and that an amount of
R15 000-00 will be subsidized per person
for 20 people.
That 20 employees
will be appointed on a permanent basis.
That the 20
employees should be properly appointed within two years.
You are welcome to
communicate with the author hereof in the event of any uncertainty.
It is trusted that you find this [arrangement]
in order.”
[33] This letter looks
promising if not good. The only difference is that it is fraudulent.
33.1 It is common that
the Municipality at no stage took such a decision;
33.2 It is also common
cause that the contents of this letter were not referred by Motsoare
to the municipal council for consideration
or ratification. On the
contrary Thabula Trade or is it Pure Golf Course and Country Resort
or Ms De Bruin and MsMokgoro has/have
stated that it was not a
requirement to do so and there was no necessity for such a process.
33.3 The overwhelming
objective facts are consistent with Motsoare’s fabrication
having taken place after Beukes refused to
issue a clearance
certificate on or about 22 February 2006, henceMotsoare’s
surreptitious issue thereof on 24 February 2006.
33.4 Beukes’s
objection to what Motsoare and Makape as well as the purchasers did
and his appeal in a three-page complaint
to the provincial
auditor-general, the relevant MEC and Sadie on 24 February 2006, and
therefore within two or three days after
this irregular conduct,
militate very strongly against Beukes having advised Motsoare and his
ilk or having been in cahoots with
them.
[34] Having composed
the fraudulent conditions of 09 December 2005 (para 31 above)it is
evident that the manuscript resolution has
been superimposed on the
genuine typed resolution purporting to be a resolution of 08 December
2005 and is itself fictitious and
evidently fabricated to dovetail
with the fraudulent conditions in para 31 (above). The manuscript
notes must have been, on the
objective facts, composed
contemporaneously with the aforementioned fraudulent conditions.
[35] Based on the
analysis set out hereinbefore I am satisfied that the court a quo
failed to discern that the manuscript notes
which were paraded as a
council resolution and, more importantly, the
ex post facto
conditions, which Mr Burger fairly conceded to be so, were
contrived by Motsoare for illicit purposes.
On this ground only
(or as well) the appeal should have succeeded.
E.
THE FIFTH AND
FINAL GROUNDS OF APPEAL.
That the court a quo
erred in not having found that the provisions of
s14(2)
of the
Local
Government: Municipal Finance Management Act, No 56 of 2003
were
peremptory and applicable to this matter.
[36] For proper
comprehension the entire
s14
is cited:
“
14
Disposal of capital assets
(1) 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.
(2) A municipality
may transfer ownership or otherwise dispose of a capital asset other
than one contemplated in subsection (1),
but only after the municipal
council, in a meeting open to the public-
(a) has
decided on reasonable grounds that the asset is not needed to provide
the minimum level of basic municipal
services; and
(b) has
considered the fair market value of the asset and the economic and
community value to be received in exchange
for the asset.
(3) A decision by a
municipal council that a specific capital asset is not needed to
provide the minimum level of basic municipal
services, may not be
reversed by the municipality after that asset has been sold,
transferred or otherwise disposed of.
(4) A municipal
council may delegate to the accounting officer of the municipality
its power to make the determinations referred
to in subsection (2)
(a) and (b) in respect of movable capital assets below a value
determined by the council.
(5) Any transfer of
ownership of a capital asset in terms of subsection (2) or (4) must
be fair, equitable, transparent, competitive
and consistent with the
supply chain management policy which the municipality must have and
maintain in terms of
section 111.
(6) This section
does not apply to the transfer of a capital asset to another
municipality or to a municipal entity or to a national
or provincial
organ of state in circumstances and in respect of categories of
assets approved by the National Treasury, provided
that such
transfers are in accordance with a prescribed framework.”
[37] It is prudent to
commence with the argument of the respondent (Thabula Trade) on this
aspect. Mr Burger has urged upon us to
find that the operation of
s14
of the aforesaid Act 56 of 2003 as reflected in Government Gazette
26511 dated 07 July 2004 had been suspended or delayed until
30 June
2007 by virtue of the provisions of ss111 and 112 of the LG: MFM Act.
It will be noticed that specific mention is made
of s111 in s14(5) of
the Act.
[38] s111 of the Act
provides that:
“
111. Supply
chain management policy.
—Each
municipality and each municipal entity must have and implement a
supply chain management policy which gives effect to
the provisions
of this Part.”
The date of
commencement is recorded as 01 December 2004, immediately below this
section.
[39] The introductory
part of s112 of this Act stipulates that:
“
112. Supply
chain management policy to comply with prescribed framework.
—
(1) The
supply chain management policy of a municipality or municipal entity
must be fair, equitable, transparent, competitive
and cost-effective
and comply with a prescribed regulatory framework for municipal
supply chain management, which must cover at
least the following:”
2
Then follows clauses
(a) to (q); in other words 17 of them. I highlight only one of those,
viz (n) that enjoins:
“
(n)
the invalidation of recommendations or decisions that were unlawfully
or improperly made, taken or influenced, including recommendations
or
decisions that were made, taken or in any way influenced by—
councillors in
contravention of item 5 or 6 of the Code of Conduct for Councillors
set out in Schedule 1 to the Municipal Systems
Act; or
municipal officials
in contravention of item 4 or 5 of the Code of Conduct for Municipal
Staff Members set out in Schedule 2 to
that Act;”
In essence clause (n)
proscribes corrupt practices.
[40] Mr Burger
contended that s14(2) was inoperative when the sale agreements were
signed in December 2006, based on the strength
of GG No 26511 dated
01 July 2004 through which the Minister of Finance has issued a
Government Notice that provides in article
6(2) at p8 of its Schedule
that:
“
(2) The
implementation of the following provisions of the Act are delayed for
low capacity municipalities until 30 June 2007.”
Amongst
these sections are ss111, and 112.
It is common cause that
Tsantsabane Municipality, the applicant, is a law capacity
municipality.
[41] Section 14 is not
mentioned at all in the entire Schedule. No authority is needed to
bolster the principle or contention that
if the Minister wanted s14
or some subsections thereof to be delayed or suspended he would have
said so in so many words. Mr Burger’s
submission that the
lawgiver did not intend a piecemeal implementation of the provisions
alluded to carry with it the fallacy that
the implementation of the
LG: MFM Act, 56 of 2003, would be largelyparalised if certain
provisions are willy-nilly rendered nugatory,
with devastating
consequences for the sort of delivery contemplated in s112 of this
Act, quoted in para 39 (above).
[42] The court a quo
has not dealt with the aforementioned s14 of the Act. This, in my
view, is a material omission or oversight.
However that may be, I am
satisfied that s14(2) is applicable to these proceedings. It is
accordingly understandable that “
Beukes was
terstondongelukkigaangaande die ooreenskoms in die
ligdaarvandatdaargeenraadsbesluit was wat die prysbepaal het nie.”
The
respondent has not claimed that it complied with s14(2) or s14(5) or
any of the concomitant subsections. It claims the obverse
- that
these provisions were held in abeyance.
[43] In light of the
aforegoing I associate myself with the following remarks by
De
Swardt AJ
in
WaenhuiskransArnistonRatepayers Association &
Another v VerreweideEiendomsontwikkeling (Edms) Bpk and Others
supra
at
461 (para 105) whereat it is stated:
“
[105] In
terms of s14(2) , a municipality is constrained, before it may
transfer a capital asset, to do at least three things: firstly,
it
must hold a meeting of its council which is open to the public;
secondly, at such meeting the council must decide, on reasonable
grounds, that the asset is not required to provide the minimum level
of municipal services; and thirdly, at the said meeting, the
council
must consider the fair market value of the asset, as well as the
economic and community value which will be received in
exchange for
the asset. Section 14(5) imposes the additional requirement that the
process which the municipality adopts in transferring
a capital asset
must be fair, equitable, transparent and competitive, and consistent
with the supply chain management policy referred
to in s111 of the
MFMA.”
Compare para30 of this
judgment and the guidelines espoused in
Nel v Lubbe
(above).
The lawgiver has
specifically or by necessary implication declared the implementation
of ss111 and 112 severable and therefore authorizes
a staggered
process. Their excise for the time being posed no bar to the
operation of s14.
[44] The municipality
has broken every conceivable provision in s14. For instance:
44.1 The process was
not open and transparent. Ms De Bruin and MsMokgoro were or Thabula
Trade was given preferential treatment.
44.2 The advertisement
in the Ghaap newspaper calling for objections to the sale was
misleading because it described the purchaser
as Pure Golf &
Country Resort whereas the contract refers to Thabula Trade &
Investments (Pty) Ltd. Belatedly for that
matter, because what good
would an objectionhave served if a “valid” contract had
already been entered into.
44.3 Objections were
nevertheless received from three individuals and a non-governmental
organization (NGO). The thrust of their
objections were that the
process was not open and transparent. A material objection also came
from Mr P J Stafford. He made an
offer long before the current
so-called purchasers to purchase and develop the place into a
“Healing Centre” in collaboration
with the community and
churches, to counsel those who required the service and those with
broken homes, rape and abused victims
etc. However, neither he nor
his attorney were informed whether or not his offer had been accepted
or why it was rejected dispite
the lapse of more than a year.
44.4 A municipal
council may only delegate to an accounting officer its power to make
a determination in respect of movable capital
assets below a value
determined by the council. See s14(4) of the LG: MFM Act. If the
council authorized Motsoare or anyone else
to determine the value or
price of the Golf course or the Golf Course and Horse Racing
Facility, which I maintain it did not, this
would have been
ultravires
in any event. See s14(2) of the Act.
[45] In concluding its
judgment the court a quo states that:
“
31. It is
quite clear that the grounds on which the applicant relies for its
application to set aside the said agreement are grounds
which,in my
view, are entirely attributed to the applicant’s conduct and to
no conduct on the part of the first respondent.
The applicant asks
this court to declare the said agreement null and void and of no
force and effect because, according to it,
the agreement is vitiated
by an error. See Introduction To South African Law And Legal Theory
by W J Hosten et al at pp 386-391.
I am of the view that the dictates
of justice carry a clear and unequivocal conviction that injustice
will be done to the first
respondent if the applicant were allowed to
benefit from its own mistakes.”
[46] This conclusion is
misconceived. It must be borne in mind that Ms De Bruin and MsMokgoro
knew and acknowledged that they and
not Thabula Trade &
Investment (Pty) Ltd or Pure Golf & Country Resort were
identified as potential purchasers. It was
they who, with the full
knowledge of the council resolution, furnished the namesThabula Trade
and Pure Golf to the council. They
were aware that the council has
not determined the price of the property and that Motsoare purported
to do so. More importantly
the immovable property in question had not
been properly identified as late as 01 July 2006 whereas the
contracts bore the dates
09 and 15 December 2005.
[47] Having regard to
the above exposition as context the principles enunciated in
City
of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd
2008(3) SA 1 (SCA) are
mutatis mutandis
applicable where
Ponnan JA writing for the unanimous court states from 5H-6H (paras
12-16):
“
12. ---
(P)ersons contracting in good faith with a statutory body or its
agents are not bound, in the absence of knowledge to the
contrary, to
enquire whether the relevant internal arrangements or formalities
have been satisfied, but are entitled to assume
that all the
necessary arrangements or formalities have indeed been complied with
(see for example
National
and Overseas Distributors Corporation (Pty) Ltd v Patato Board
1958(2) SA 473 (A);
Potchefstroom
se Stadsraad v Kotze
1960(3)
SA 616 (A)). Such persons may then rely on estoppel if the defence
raised is that the relevant internal arrangements or
formalities were
not complied with.
13. As to the first
category: failure by a statutory body to comply with provisions which
the legislature has prescribed for the
validity of a specified
transaction cannot be remedied by estoppel because that would give
validity to a transaction which is unlawful
and therefore ultra
vires. (See for example
Strydom v Die Land- en Landboubank van
Suid-Afrika
1972 (1) SA 801
(A);
Abrahamse v Connock’s
Pension Fund
1963(2) SA 76 (W); and
Hauptfleisch v
Caledon Divisional Council
1963(4) SA 53 (C)).
14. ---- . In the
present case, the defendant’s legal capacity to amend the
supply contract must be sought in the provisions
of the statute. A
resolution by the defendant’s council was prescribed by s38(1)
as a necessary prerequisite for amending
or varying the supply
contract. Absent such a resolution, any purported amendment by
employees of the defendant was plainly impermissible.
Moreover,
s38(5) specifically prohibited the defendant’s council from
delegating or assigning those functions. ---. The statute
expressly
confers sole power upon a specified entity, to the exclusion of any
other person or entity, to extend or vary an existing
tender
agreement. The linguistically plain meaning of the section severely
restricts the power (vires) to enter into a transaction
of that kind
to the defendant’s council.
15. Section 217 of
the Constitution requires contracts for services or goods by an organ
of State such as the defendant to accord
with a system that is fair,
transparent, competitive and cost-effective. Against that backdrop,
the mischief that s38 of the Act
seeks to prevent is plain. It is to
eliminate nepotism, patronage, or worse, and to entrust the council
of the defendant with a
sole power which is to be exercised
independently by it to achieve those ends. If the conclusion of
contracts were to be permitted
without any reference to the
defendant’s council and without any sanction of invalidity, the
very mischief which the legislation
seeks to combat could be
perpetuated.
16. There are
formidable obstacles to the plaintiff’s reliance upon the
doctrinal device of estoppel. Assuming in the plaintiff’s
favour that all of the requirements for its successful invocation
have been established, this is not a case in which it can be
allowed
to operate. It is settled law that a state of affairs prohibited by
law in the public interest cannot be perpetuated by
reliance upon the
doctrine of estoppel (
Trust Bank van Afrika Bpk v Eksteen
1964(3) SA 402 (A) at 411H-412B), for to do so would be to compel the
defendant to do something that the statute does not allow
it to do.
In effect therefore it would be compelled to commit an illegality.
(Hoisain v Town Clerk, Wynberg
1916 AD 236).
”
F.
RAISING THE
PROVISIONS OF S14(2) FOR THE FIRST TIME ON APPEAL; IN THE HEADS OF
ARGUMENT AND NOT IN THE FOUNDING PAPERS.
[48] The entitlement to
raise s14(2) in argument was raised in preliminary proceedings before
my sister Williams J on 30 November
2007. Pursuant thereto the
learned Judge made the following order, which still stands:
“
(4) That the
respondents [Thabula Trade and the Registrar of Deeds] are granted
leave to respectively file an affidavit on aspects
alluded to in the
Heads of Argument [of the applicant municipality] dated 26 November
2007 and also to deal with the statement
of Mr Ross dated 24 October
2007.
(5) The opportunity
afforded the respondent [singular] must be exercised not later than
31 January 2008.”
[49] In the Heads of
Argument referred to in the order of Williams J counsel for the
applicant (Adv W Coetzee who has been retained
in this appeal)
notified the respondents that:
“
Applicant will
invoke the provisions of s14(2) [and 14(5)] of the Municipal Finance
Management Act, Act 56 of 2003” and proceeded
to quote these
two subsections of s14.Thabula Trade complied with the court order
and contended that the provisions in question
were not applicable to
this matter for reasons already adverted to. A proper foundation has
therefore been laid to debate this
issue which has accordingly been
well ventilated and is properly before us.
[50] In addition Beukes
has sufficiently drawn attention to the fact that the council has not
delegated authority to the administrative
staff to determine the
value of the property and insisted that the matter should have gone
back to the council for this purpose.
In his letter to the Provincial
Auditor-General, copied to the said MEC, Beukes draws attention to
the provisions of s32 of the
LG: MFM Act concerning “unauthorized,
irregular or fruitless and wasteful expenditure by a municipality”
and states
that he “informed MrMakape that there was
legislation regulating the sale of land and that I was only
performing my duty
in terms of this legislation.” In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
2004(4) SA 490 (CC) at 507 C-E (para 27) the
Constitutional Court (per
O’Regan J
) held:
“
27. The
Minister and Chief Director argue that the applicant did not disclose
its causes of action sufficiently clearly or precisely
for the
respondents to be able to respond to them. Where a litigant relies
upon a statutory provision, it is not necessary to specify
it, but it
must be clear from the facts alleged by the litigant that the section
is relevant and operative. I am prepared to assume,
in favour of the
applicant, for the purposes of this case,that its failure to identify
with any precision the provisions of PAJA
upon which it relied is not
fatal to its cause of action. However, it must be emphasized that it
is desirable for litigants who
seek to review administrative action
to identify clearly both the facts upon which they base their cause
of action, and the legal
basis of their cause of action.”
On this basis as
well Mr Burger’s argument on this aspect cannot be sustained
.
[51]The appeal is in
the result upheld on all the grounds of appeal set out on the matters
dealt with under sections A to E including
F of this judgment.
[52]
The
following order is made:
1. The appeal by the
appellant (Tsantsabane Municipality) is upheld.
2. The two agreements
(Annexures “A” and “B” to the appellant’s
Notice of Motion) between Tsantsabane
Municipality and Thabula Trade
and Investments (Pty) Ltd dated 09 December 2005 and 15 December 2005
in respect of the Postmasburg
Golf Course (Golfgronde) and/or Golf
Course and Horse Racing Facility (Perdebaan) are hereby declared null
and void and are of
no force and effect.
3. The First Respondent
(Thabula Trade and Investments (Pty) Ltd) is ordered to pay the taxed
costs on the party and party scale
from the stage of the hearing
before the court a quo throughout all the stages up to and including
the costs of this appeal.
__________________________
F DIALE KGOMO
JUDGE-PRESIDENT
Northern
Cape High Court, Kimberley
I concur
__________________________
C J OLIVIER
JUDGE
Northern
Cape High Court, Kimberley
I concur
__________________________
B M PAKATI
ACTING JUDGE
Northern
Cape High Court, Kimberley
On behalf of the Appellant
:
AdvW COETZEE
Instructed by: De Jager Attorneys
On behalf of the First
Respondents
:
AdvA H BURGER SC
Instructed by: Haarhoffs Inc.
1
The
choice of the emphasized terms (above) will become evident in due
course
2
As
will be seen later (in para 46 below) this section is essentially
modelled on the provisions of s217 of the Constitution of
the
Republic of South Africa, 108 of 1996, dealing with Procurement of
goods and services.