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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Not Reportable
Case No: 16552/2024
In the matter between:
GERRIT LODEWICKUS COETZEE N.O First Applicant
ANDREA COETZEE N.O Second Applicant
(in their capacities as trustees of the time being of
THE SOUTH AFRICAN GLOBAL
CONQUEROR TRUST, I[...])
and
MOSSELBAY MUNICIPALITY Respondent
Coram: RALARALA, J
Heard on: 18 February 2025
Delivered on: 15 September 2025
Summary: Administrative law – Review - Administrative action - Validity of Municipal
Council decision- Refusal of application for alienation of municipal low value property
for benefit of public - Refusal to allow representations on public participation process
objections - Infringement of the right to procedural fairness s ection 3(2)(b)(ii) of the
Promotion of Administrative Justice Act 3 of 2000. Decision of Municipality reviewed
and set aside.
ORDER
1. The decision of the Municipality of 29 February 2024 not to grant the Trust
approval is reviewed and set aside.
2. The matter is remitted to the Municipality for reconsideration.
3. The Municipality is to provide the Trust with the relevant objections by no later
than 30 October 2025 and allow the Trust reasonable time for submission of
the comments to the objections.
4. The Municipality is to consider the Trust’s application with all the comments
within 90 days of this order.
5. The Municipality is directed to pay the Trust’s party and party c osts, such
costs to include the costs of Counsel on Scale C.
JUDGMENT
RALARALA, J
[1] This is an application to review and set aside the decisions of the Respondent
(“the Municipality”) to deny the acquisition by the Applicants (“the Trust”) of an
immovable property owned by the Municipality situated at Erf 6[...], Mossel Bay (“the
property”).
[2] The Trust’s application to purchase the property for the benefit of the public,
to provide access to the beach through the property was unsuccessful. The Trust
asserts that the Municipality’s decision constitutes an administrative action in terms
of the common law and the Promotion of Administrative Justice Act 3 of 2000 (as
amended) (“PAJA”). Initially, three grounds underpinned the Trust’s review
application, and at the hearing two of the grounds for review were abandoned by the
Trust. The application is opposed by the Municipality contending that PAJA is not
applicable.
FACTUAL BACKGROUND
[3] The First Applicant submitted an application to buy the property from the
Municipality. In light of the First Applicant's decision to abandon this application, the
Trust submitted a new application, which is the subject matter of these proceedings .
The purpose of acquiring this property was to provide public beachgoers with access
to the beach and to construct public amenities and changing room s. The property is
situated on the south coast of the garden route and borders an exclusive residential
estate, the Moquini Estate, Dana Bay, Mossel Bay. The property is said to be facing
the Southern Ocean, which is adjacent to the beach of the south border. The
property covers approximately 4800 square meters.
[4] On 30 November 202 3, the Municipal Council considered the Trust's application
and granted the Trust an 'in-principle’ approval. This approval was to be followed by
a public participation process (“the PPP”) on the proposed alienation of the property
to the Trust. On 15 December 2023 the Municipality published the proposed
alienation of the pr operty for public comment and pursuant thereto, on 31 January
2024 the Trust caused correspondence to be sent to the Municipality stating that it
was alerted that objections had been lodged against the Trust’s application and
enquired whether it would be e ntitled to reply to the objections and what steps the
enquired whether it would be e ntitled to reply to the objections and what steps the
Trust should take. Pursuant to consideration of the objections emanating from the
PPP, on 6 March 2024 the Municipality informed the Trust of its decision not to
alienate the property and the basis thereof notwithstanding the ‘in principle’ approval.
The Trust was dissatisfied with the decision of the Municipality in this regard. The
Trust seeks to impugn that decision in this application.
APPLICANT’S CASE
[5] The Trust avers in its founding affidavit that the aforementioned administrative
actions are unlawful and fall to be reviewed and set aside on the basis that they
materially and adversely affect the Trust’s rights and the rights of the general public,
which in turn affects the legitimate expectations of the collective. The Trust further
avers that the decision to revoke the initial ‘in principle approval’ to alienate the
immovable property to the Trust was taken with wilful disregard of the collective
interest and without complying with procedural fairness requirements stipulated in
section 33 (1) of the Constitution and section 3 of PAJA. The decisions were taken
by Municipality for all the reasons set out in section 6(2)(c), (e) and (f)(ii) of PAJA
that justify judicial review.
[6] The Trust contends that the First Applicant visited the Garden Route area
during March 2023 with the intent to acquire immovable property/ies for the Trust.
The property, an exclusive residential estate, Moquini Estate, consisting of luxury
private residential accommodation was spotted by First Applicant. Ownership of
Moquini Estate vests in the Municipality. It is contended that the First Applicant
approached the Municipality to ascertain the possibility of acquiring the property in
order to provide public amenities to the general public at the beach and to facilitate
easy access to the beach via the property.
[7] On 6 March 2023, the Municipality advised the Fi rst Applicant to make an
application to the Municipality for the alienation of the property. The Municipality
responded to the email correspondence setting out the process that must be
followed in order to submit the appropriate or necessary application.
[8] In July 2023, the First Applicant enquired about the progress of the application
and was advised that the application had been preliminarily approved by the
Municipality’s Mayoral Committee. The application would be included in the Council's
Municipality’s Mayoral Committee. The application would be included in the Council's
agenda for approval at a meeting scheduled for 27 November 2023.
[9] The First Applicant received an email from Douw Steyn (“Steyn”), the
Municipality's Legal Advisor, on 24 July 2023. The Municipality required information
from the Trust regarding the purpose of the Trust together with the letters of
Trusteeship and the Trust’s resolution, in order to inform the public . Further, the
Municipality advised the Trust that a Public Participation Process would be
necessary.
[10] On 24 July 2023, the First Applicant addressed an email correspondence
responding to Steyn propo sing that the Municipality approve the alienation of the
property to the Trust . Certain undertakings were made by the Trust including not to
alter or in any way disturb any services.
[11] Further c orrespondence was exchanged between the First Applicant and
Steyn which led to the virtual meeting on 24 August 202 3. At the meeting , Steyn
indicated that the y were satisfied with the responses from the Municipality and that
the application would be circulated to other departments within the Municipality for
approval and comment. This was followed by additional correspondence from the
First Applicant to Steyn, advising of a meeting with area consultants, “key people” in
the Fisherman Village Moquini Estate etc. and aspects that were discussed a s well
as recommendations.
[12] The Municipality responded to the correspondence on 20 September 2023 ,
advising that the aspects raised in the Trust’s correspondence of 28 July 2023 were
with the Directorate of Urban Planning for further comment, as part of the
application’s evaluation process.
[13] On 7 November 2023, the First Applicant was advised by the Municipality that
its Legal Department was engaged in its final stages of discussions to make a
recommendation to the Council of the Municipality. The Municipality enquired about
the progress of the Department of Environmental Affairs.
[14] The Municipality conveyed that the item to be raised at the Council meeting
[14] The Municipality conveyed that the item to be raised at the Council meeting
was internal in nature and will only be published on the website once it had gone
through the approval of all the relevant Committees of the Municipality. Further , it
was conveyed to the First Appl icant that the Municipality first makes an “in-principle”
decision, which will be communicated to the Trust. Alternatively, that further input
and/or objections may be encountered which might require further amendment from
the Trust and also having regard to the PPP which needs to be undertaken.
[15] Subsequently, further correspondence was exchanged between the parties.
On 24 November 2023, the Municipality conveyed and confirmed that the application
would be tabled at the Council’s meeting on 30 Novemb er 2023 following its
approval by the Mayoral Committee.
[16] The Council’s resolutio n stipulating, inter alia, that approval was granted for
the alienation of 4800m2 of immovable property to the Trust at a market related price
of R980 000 (V.A.T inclusive) and that it would be used for conservation and coastal
access point for the general public. T he Trust indicated that it accepts the resolution.
Enquiries were addressed to the Municipality regarding the PPP and on 31 January
2024, the Trust advised the Municipality that they were alerted through the local
Media regarding opposition to the proposal. The First Applicant avers that they had
studied the objections and vi ewed the individual objections as unwarranted and
biased. The Trust contends that it enquired from the Municipality as to whether the
Trust would be afforded an opportunity to respond to the objections, since they were
not aware if there were other comment s and what the full extent and content of the
objections is. The Trust also sought to determine how it could address any or all of
the objections.
[17] The Municipality advised the Trust on 1 February 2024, that the Trust has no
opportunity to comment on the objections. On 6 March 2024, the Trust was informed
that the alienation approval was revoked. On 28 March 2024 the Trust’s legal
representative addressed further correspondence to the Mun icipality requesting
representative addressed further correspondence to the Mun icipality requesting
reasons for its decision and internal remedies available to the Trust insofar as review
or appeal processes were concerned. To obtain the information requested, the Trust
was directed to the provisions of the Promotion of Access to Inf ormation Act, 2 of
2000
[18] Essentially, the Trust asserts that the Municipality did not afford it a
reasonable opportunity to make representations befor e the revocation of th e ‘in
principle’ approval. Furthermore, the Trust contends that the Municipality failed to
provide it with adequate notification regarding any rights of review or how the
applicant could exhaust internal remedies as envisaged in section 7 of PAJA.
RESPONDENT’S CASE
[19] The Municipality on the other hand, sets out in its answering papers that none
of the decisions constitute administrative action as envisaged in PAJA, as they have
no adverse effect on the rights of the Trust or the general public.
[20] Further than on a factual level, the Municipality never made a decision to
alienate the immovable property or revoke such a decision. The two decisions made
by the Municipality’s Council: First, on 30 November 2023, constitutes an ‘in -
principle’ approval to aliena te the immovable property but subject to a PPP, vested
no rights and stipulated that the item will be referred back to Council for further
consideration.
[21] The second decision was taken in February 2024 after the PPP which entails
the following:
“the comments and objections were substantive and significant in number and
approval for the alienation of the property was not granted and the property is
to remain undeveloped in its natural state subsequent to this decision Council
is functus officio.”
[22] The Municipality asserts that the Trust has failed to establish any case in
which it or the collective had any legitimate expectation that could or would be
adversely affected by any decision taken by the Municipality.
[23] The Municipal ity persists that it adhered to the appropriate procedure when
managing reactive disposals of this nature, acknowledging that it is not legally
obligated to alienate its immovable property. The Municipality further contends that
no decision was ev er taken prior to the receipt of the Trust’s offer to alienate the
immovable property. The alienation of public property is a prerogative to be
exercised only by the Municipality; and courts cannot compel the Municipality to
exercise this prerogative.
[24] The Municipality avers that the decision was fair, and all parties involved,
including the public, were afforded an opportunity to be heard and advised of the
process and accepted same. Members of the public, who were interested parties
objected to the Trust’s application and filed objections and comments.
[25] The Municipality submits that in terms of its Asset Management Policy, it may
not dispose of an immovable property unless its council has held a public meeting
and determined on reasonable groun ds that the property is not required for service
delivery and has considered the fair market value.
[26] The Municipality asserts that the procedure adopted is consistent with the
provisions of the Municipal Finance Management Act 56 of 2003 (“MFMA”) and the
Regulations. Consequently, it is a fair process for both the Trust and the public,
constituting a fair procedure as envisaged in section 3(2), alternatively section 3(4) of
PAJA.
[27] In March 2023, a letter was addressed to the First App licant, as the Trust had
not yet been registered. The Municipality in the aforementioned correspondence
stated that the immovable property cannot be alienated. The Trust may request legal
services to obtain a formal Council Resolution, and the procedure to be followed was
encapsulated in this correspondence. The Municipality asserts that the Trust
understood and accepted the process.
[28] The Municipality further asserts that the Applicant accepted the terms of the
‘in principle’ decision from the Council without making any further comments or
raising objections. In addition, in terms of the process there is no provision for an
applicant to be provided with the comments and objections received from the public.
applicant to be provided with the comments and objections received from the public.
This was confirmed by legal services to the Trust on 1 February 2024, when advising
that the final decision of Council will be communicated to him after all objections and
commentary had been taken into account.
[29] The Municipality's Council is required to determine whether to sell the
property based on the item prepared by legal services, the remarks from the internal
departments, and the results of the PPP. There is no legal or constitutional obligation
to alienate its immovable property.
[30] The Municipality denies that an expectation was cre ated that the different
departments would approve the application. The Trust was informed of the Council
meeting and the date but chose not to attend. When the Trust was informed that the
Council would take a final decision and on what basis, it did not ma ke any request to
the Municipality to make further submissions.
ISSUES FOR DETERMINATION
[31] The Trust's documents initially outlined three primary reasons for review.
Firstly, that the revocation of the ‘in principle approval’ is unlawful; secondly, that the
Municipality should have provided the Trust with an opportunity to comment on the
objections received in the PPP; thirdly , that the decision to refuse the application is
not rationally related to the information before the decision -maker, as objections
have no merit . At the hearing , the Trust abandoned the first and the third grounds
and proceeded on the basis of the second ground of procedural fairness under
PAJA. Thus , this court is enjoined to determine the following, firstly, whether the
Municipality’s omission to permit the Trust to submit to its Council representations
after the objections were lodged by the public is an administrative action, simply put,
whether PAJA applies. Secondly, whether the Municipality infringed the applicant’s
right to procedural fairness as contemplated in section 3(2)(b)(ii) thereof. I turn to
consider these disputed issues ad seriatim.
[32] To effectively address this question, I consi der it important to provide a
[32] To effectively address this question, I consi der it important to provide a
detailed overview of the legal principles that underpin administrative actions. In my
view, these principles form the basis of how organs of state, the Municipality in this
case, should exercise its public power when making de cisions that affect individuals
and organisations. An examination of the relevant statutes, and relevant case law,
will enable this court to unravel the responsibilities of the Municipality, an organ of
state towards members of the public like the applican t to ensure fairness and
accountability.
LEGAL PRINCIPLES
[33] The Promotion of Administrative Justice Act 3 of 2000 (PAJA) section 1
defines a decision as follows:
“‘decision’ means any decision of an administrative nature made, proposed
to be made, or required to be made, as the case may be, under the
empowering provision, including a decision relating to-
(a) making, suspending, revoking or refusing to make an order, award or
determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or
other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other ac t or thing in administrative nature,
and a reference to a failure to take a decision must be construed
accordingly;”
Section 1 defines ’administrative action’ as meaning any decision taken, or any
failure to take a decision, by-
(a) an organ of state, when-
(i) exercising a power in terms of the Constitution or a provincial constitution;
or
(ii) exercising a public power or performing a public function in terms of any
legislation; or. . .”
[34] Section 3 of PAJA reads:
” Procedurally fair administrative action affecting any person
(1) Administrative action which materially and adversely affects the rights
or legitimate expectations of any person must be procedurally fair
(2) (a) A fair administrative procedure depends on the circumstances of
each case.
(b) In order to give effect to the right to procedurally fair administrative
action, an administrator, subject to subsection (4) must give a
person referred to in subsection (1)-
(i) Adequate notice to the nature and purpose of the proposed
administrative action;
(ii) A reasonable opportunity to make representations;
(iii) A clear statement of the administrative action;
(iv) Adequate notice of any right of review or internal appeal
where applicable; and
(v) adequate notice of the right to request reasons in terms of
section 5”
DISCUSSION
Is the decision of the Municipality to revoke the ‘in-principle’ approval an
administrative action?
[35] Adv. De Waal SC, counsel for the Municipality argued that a decision to sell a
low value capital asset reactively does not qualify as an administrative action under
PAJA. The reasons for this submission are based on the fact that the decision is not
administrative in nature, as the Council is not typically an administrative decision -
making body. Further that there is nothing bureaucratic about the decision, nor does
it involve ’application of policy’ instead, the decision seems more commercial or
managerial in nature, rather than administrative. Reliance was placed on Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) where
the court found that the decision to let state land was an administrative action but
stated that:
“[29] But section 3(1) of PAJA confers a right to procedural fairness only in
respect of administrative action that materially and adversely affects the rights
or legitimate expectation of any person.
[30] While ‘rights’ may have a wider connotation in this context, and may
include prospective rights that have yet to accrue, it is difficult to see how the
term could encompass interests that fall short of that. It has not been shown
that any rights -or even prospective rights -of any of the appellants (or of any
other person) have been adversely affected by the Minister’s decision. None
of the appellants has any right to use the property that has been let, or to
restrict its use by others, nor has any case been made out that rights of
occupation of their own premises have been unlawfully compromised. As
pointed out in Kyalami Ridge at para [95]
‘The gener al rule is that the reasonable use of property by an owner is not
subject to restrictions, even if such user causes prejudice to others.’
[32] Nor has it been shown that any of the appellants (or any other person)
has a legitimate expectation that the property would be left vacant, or even
that they would be consulted, or their comments invited, before it was let.”
[36] Section 160 of the Constitution stipulates that ‘ A municipal Council makes
decisions concerning the exercise of all powers and the per formance of all functions
of the Municipality’ . In the present matter the decision was made by the Municipal
Council exercising a public power or performing a public function. Moreover, the
decision involves the implementation of a legislation, thus the ex ercise of the power
is administrative in nature. Public power carries with it a duty to act in the best
interest of the public. See Law Society of South Africa v President of the Republic of
South Africa 2019 (3) SA 30 (CC) para 3. Moreover Section 239 of the Constitution
South Africa 2019 (3) SA 30 (CC) para 3. Moreover Section 239 of the Constitution
defines an organ of state as to include ‘any functionary or institution exercising a
public power or performing a public function in terms of any legislation’ . Thus, I
venture to say that Counsel’s argument in this regard cannot be sustained.
[37] In Grey’s Marine supra (page 323 paragraph D to F) the court held as follows:
“The PAJA definition of administrative action restricts administrative action to
decisions that adversely affect rights of any person that literal meaning could
not have been intended. For administrative action to be characterised by its
effect in particular cases (either beneficial or adverse) seems to me to be
paradoxical and also finds no support from the construction that has until now
been placed on section 33 of the Constitution. Moreover, that literal
construction would be inconsonant with section 3(1), which envisages that
administrative action might or might not affect rights adversely. The
qualification, particularly when seen in conjunction with the requirem ent that it
must have a ‘direct and external legal effect’, was probably intended rather to
convey that administrative action is action that has the capacity to affect legal
rights, the two qualifications in tandem serving to emphasise that
administrative action impacted directly and immediately on individuals. “
[38] The Trust contends that in terms of section 40 (2) (b) (i) of the Municipal
Supply Chain Management Regulations immovable property may be sold only at
market related prices except when the pu blic interest or the plight of the
impoverished demands otherwise. The Municipality, in this manner when exercising
its power may dispose of its rights in the property and such disposal constitutes
administrative action. Bullock NO and Others v Provincial Government, North West
Province and Another 2004(5) SA 262 (SCA). Significantly, section 3(1) of PAJA
confers the right to procedural fairness only in respect of administrative action that
materially and adversely affects the rights or legitimate expectati ons of any person.
Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005(6) SA 313 at 325
para 29. The decision was made in the exercise of the public power and impacted
para 29. The decision was made in the exercise of the public power and impacted
the public. This decision is an administrative action because it involved the
application of Municipal Council’s policy, the highest decision -making authority of the
Municipality which had direct and immediate consequences to the members of the
public who are meant to benefit from the provision of access to a natural resource
through the property and public amenities. Grey’s Marine supra para 24.
[39] It is of the utmost importance that the Trust's application is altruistic in nature,
as it is intended to serve the public interest by facilitating public access to and
enjoyment of the beach areas and nature. The Trust intended that the property be
utilised by beach goers especially the poor of the community who cannot afford such
amenities close by and would otherwise be precluded from visiting and enjoying a
public beach. The Trust in its founding affidavit references the Municipality Council
Resolution of 30 November 2023 which remains u ncontroverted and states at
paragraph 43.2:
‘the immovable property would be utilised for conservation and costal
access point for the general public.’
At paragraph 43.6 it continues to state:
‘the public will have free access to and over the immovabl e property at
all times.’
At paragraph 43.7 it is stated:
‘the respondent is satisfied that the disposal would be for the benefit of
the community.”
[40] The Trust in dispelling the Municipality’s contention that its decision had no
effect on rights of the Trust or the public, asserts that the Municipality admitted that it
could not afford to render the required services and failed to deliver the required
public services which the Trust offered to deliver on behalf of the Municipality. These
services were neglected, refused, or failed to be provided for more than 30 years. It
cannot be successfully argued that the decision to let state land in Grey’s Marine
supra is akin to the present decision on the sale of municipal land. In that case , the
Minister of Public Works concluded a lease agreement with Bluefin , a company
established by a group of women with deep roots from Hout Bay where the leased
property was located. These women wished to venture into the fishing industry and
were historically excluded. The leased property was intended for constructing and
operating a fish processing facility and restaurant on the quayside at Hout Bay . The
Appellants were neighbouring businesses on the quayside and were concerned that
the development would result in traffic congestion on the quayside , deprive tenants
and visitors of the necessary parking and manoeuvring space, and impede access to
their premises and to the wate rside. They sought to review and set aside the
Minister’s decision. The appellants were not parties to the lease agreement between
the Minister and Bluefin.
[41] The second appellant was previously the tenant of the property that was
leased, and the provi sions of the lease required the second appellant to construct a
clubhouse on the property within 12 months of the lease's commencement. The
second appellant failed to act in this regard even after obtaining an extension. The
second appellant proposed to te rminate its lease agreement for the property;
however, they requested an assurance that the property and the adjacent water area
would remain vacant, and that they would not be rented to any other individual or
used for the construction of any substantial structure. This proposition was declined
by the state, and no such undertaking was given.
[42] This matter is distinguishable from the present matter in that the Trust is party
to the alienation process as it initiated the alienation application and is di rectly
affected by the decision of the Municipality. Further in Grey’s Marine the appellants
had not established any rights or prospective rights which had been adversely
affected by the Minister’s decision. In the current matter the application by the Trust
explicitly stipulates that the procurement of the property is for the benefit of the
public. Crucially, section 24 of the Constitution is of paramount importance, as it
guarantees everyone a right to the protection of the environment for the benefit of
the public through reasonable legislation and other measures that secure use of
natural resources while promoting justifiable economic and social development. The
natural resources while promoting justifiable economic and social development. The
beach is a natural resource, and as such the public is entitled to the access that the
Trust seeks to provide. The Trust has indeed demonstrated that the rights of the
public are at stake in this matter.
[43] The Municipality while appreciative of that right acted contrary to the
provisions of section 24 of the Constitution and the Municipali ty’s decision materially
and adversely affects this right. There can be no doubt that the non -delivery of these
services has an adverse effect on the public. Thus, the proposition by Mr DeWaal
that there is a grave doubt regarding whether the Trust was gen uinely acting in the
public interest fundamentally misses the point and cannot be sustained.
[44] Furthermore, t he appellants in Grey's Marine did not establish a legitimate
expectation, as no undertaking was made by the state that the property would be left
vacant after the second appellant relinquished its rights thereto . The Trust asserts
that the ‘in-principle’ approval created a legitimate expectation. In my view, it is clear
that the decision of the Municipality falls within the purview of PAJA. For reasons set
out above I take the view that PAJA is applicable in this matter and section 3 (2)
(a)(ii) thereof was contravened by the Municipality.
Did the Municipality deny the Trust the right to procedural fairness?
[45] Regarding the issue of rebuttal of the objections from the PPP, the Trust
argued that, in paragraph 20.1 of the founding affidavit, the Municipality contends
that no steps were taken by the Trust when advised to furnish the Municipality by
way of PPP or ot herwise with any rebuttal or comment on the objections. This is
while no invitation was extended to the Trust for comments notwithstanding the
Municipality’s stance that the Trust had no right to comment on the objections. This
assertion by the Municipality is not sustainable.
[46] The Municipality’s stand point is that the PPP was not applicable as the
property was a low value asset but based on the MFMA, they had to comply with the
requirement that a transfer of ownership of immovable asset must be fair , equitable,
transparent and competitive, while Counsel for the Municipality in his written
submissions states that because the property is a low value property no PPP was
required in terms of the Asset Transfer Regulations therefore a decision on low value
asset does not trigger PAJA’s obligations to consult. Notwithstanding, the
asset does not trigger PAJA’s obligations to consult. Notwithstanding, the
Municipality claims that the procedure followed was fair to both the Trust and the
public. It is important to point out that the Municipality asserts that resolution E37 -
02/2024 in fact extended an invitation to the Trust not only to attend the PPP but also
to lodge representations.
[47] Pragmatically, in such a case, the Trust’s representations would not be based
on the Trust’s own application, but rather on the comments and ob jections received
from the public. This denoting that the comments and objections would have to be
provided to the Trust by the Municipality and allow reasonable time for comment by
the Trust. The Municipality in this manner opened the door for the conside ration of
objections, comments, and representations, by extending the invitation. However,
notwithstanding such invitation the Municipality only considered the objections and
comments lodged by the public, without affording the Trust an equal opportunity t o
make representation to advocate for the section of the public it serves, even when
this was clearly requested by the Trust.
[48] The Municipality’s contention in its answering affidavit that ‘ the Trust took no
steps when so advised to furnish the Munic ipality by way of the PPP or otherwise
with any rebuttal or comment on the objections ‘[para 20.1 of the answering affidavit]
in the context of the preceding paragraph is telling. Furthermore, it is incongruous to
the response proffered by the Municipality to the Trust’s email correspondence of 31
January 2024 regarding the PPP objections. In addition, the Municipality in this
paragraph propounds that the Trust was not precluded from providing comments or
rebuttal to the objections. This renders the argument tendered by Mr De Waal, which
posits that the administrator exercised his discretion not to allow the Trust an
opportunity to present comments and dispute the objections, similarly meritless.
[49] The First Applicant pertinently requested an opportunity to respond to the
objections in this correspondence, indicating that the Trust is not aware of the
precise nature of the objections. In my view, this indicates that the Trust had a well -
grounded, legitimate expectation that it would be afforded an opportunity to comment
grounded, legitimate expectation that it would be afforded an opportunity to comment
on the objections. The response to that correspondence from Steyn indicated that
the Municipality was yet to consider the objections and comments and thus the
opportunity could and should have been granted to the Trust before a d ecision was
taken by the Municipality. It is concerning that the Municipality felt justified in not
allowing the Trust an opportunity to make representations despite the Trust’s
expressed yearning to be heard. Significantly, from the above contention as co rrectly
pointed out by Adv Bence for the Trust, the Municipality does not contend that the
Trust was not entitled to provide comments and or rebuttal to the objections during
the PPP. Authority to make administrative decisions require that decision makers do
so in a manner that is harmonious with PAJA. See Zondi v MEC for Traditional and
Local Government Affairs 2005(3) SA 589 (CC) para101.The procedure that the
Municipality followed was flawed and violated the Trust’s right to procedural fairness
as envisaged in PAJA read with section 33 of the Constitution.
[50] Besides, the argument proffered by the Municipality to the effect that it would
be ineffective and cost -consuming to provide for a process where the Trust and
objectors are provided with further opportunities would culminate in a process akin to
trial proceedings in which the Council would be required to serve as an adjudicator ,
is disputed by the Trust. The Trust contends that the conduct of the Municipality
instead resulted in a very costly litigation, evading responsibility necessitating the
court to adjudicate on a gratuitous PPP. It is well to remind ourselves that no process
of cross examination is envisaged but merely the submission of representations by
the Trust and consideration thereof by the Municipality.
[51] In the Municipality’s quest to achieve a fair, equitable, transparent and
competitive process in the transfer of a low value asset, complete compliance with
the MFMA the Municipality had anticipated that representations from the Trust in
response to the public comments would be forthcoming. In its correspondence dated
08 July 2023 addressed to the Municipality the Trust intimated the same sentiments
that ‘ it anticipated objections would come from the affluent residents, however,
cognisance should be taken of the broader interests of the whole community’. In light
of the aforestasted, the PPP should have involved the Trust being granted an
opportunity to make representations as that is what the application of procedural
fairness in the form of the audi alteram partem requires. In Janse van Rensburg NO
fairness in the form of the audi alteram partem requires. In Janse van Rensburg NO
V Minister of Trade and Industry NO 2001 (1) SA 29 (CC) para 24 Goldstone J
remarked as follows:
“In the modern States it has become more and more common to grant far
reaching powers to administrative functionaries. The safeguards provided by
the rules of procedural fairness are thus all the more important . . .
Observance of the rules of procedural fairness ensures that an administrative
functionary has an open mind and comp lete picture of the facts and
circumstances within which the administrative action is to be taken. In that
way the functionary is more likely to apply his or her mind to the matter in a
fair and regular manner.”
[52] Essentially, the determination of fairness must be based on the unique
circumstances of each case. Although it is acknowledged that the process in the
context of local government must not only lose the attributes of fairness but also
those of transparency, competitiven ess, and cost -effectiveness, permitting the Trust
to submit representations clearly would not result in the over -judicialization of the
administrative process. Regulation 7(i) of the Municipal Asset Transfer Regulations:
Municipal Finance Management Act, 5 6 of 2003 in relation to consideration of
proposals to transfer or dispose of non-exempted capital assets makes it peremptory
that any comments or representations on the proposed transfer or disposal received
from the local community and other interested parties be considered.
[53] Crucially, deeply embedded in the circumstances of the present matter is the
conspicuous common feature that both the Municipality and the Trust are acting in
the interest of the members of the same community. Another distinguishing feature
from Grey’s Marine, where the appellants were acting in their own interests while the
Minister acted on behalf of the state. The Trust’s benevolence is intelligible, it aims to
provide public amenities to the general public and to facilitate e asy access to the
beach, a natural resource via the property and was intent to preserve the property
while the Municipality will be gaining a financial advantage , and that remains
uncontroverted. It bears emphasis that the 33 objectors are a small proportion of the
140,000 residents of Mossel Bay who stand to benefit from the alienation of the
property. In my view, the argument proffered by Mr De Waal that there was no
factual basis that the Trust was promised an opportunity to comment on the public’s
factual basis that the Trust was promised an opportunity to comment on the public’s
comments cannot be sustained.
[54] As already alluded to in the preceding paragraphs of the judgment, the Trust
contended that the ‘in principle’ approval by the Municipality gave rise to a legitimate
expectation on the part of th e Trust that the Municipality would alienate the property.
In my view, the ‘ in principle ’ approval, the service delivery intentions as
demonstrated by the Trust, and the involvement of rights of Trust and those of the
public are even greater reason for the Trust to be afforded an opportunity to submit
representations pursuant to the lodging of the objections and comments from the
public in order to render the process fair, equitable, transparent and competitive.
[55] One final issue for consideration, the Municipality argues that the objectors
have to be joined as they would have a direct and substantial legal interest in the
matter. The matter before this court concerns the question whether the decision
taken by the Municipality was thro ugh the correct decision -making process or not,
specifically the decision not to grant the Trust the opportunity to comment on the
objections and not the correctness of the decision not to alienate the property. In my
view, the objectors would not have a s ubstantial legal interest in those
circumstances. Thus, the joinder of the objectors is not necessary for the purposes
of these proceedings. In conclusion pertaining to the decision of the Municipality not
to grant the Trust the opportunity to respond to t he objections emanating from the
PPP, the Trust established proper grounds for impugning the Municipality’s decision.
ORDER
[56] In the result, the following order is granted:
[56.1] The decision of the Municipality of 29 February 2024 not to grant the
Trust approval is reviewed and set aside.
[56.2] The decision is remitted to the Municipality for reconsideration.
[56.3 The Municipality is to provide the Trust with the relevant objections by
no later than 30 October 2025 and allow the Trust reasonable time for
submission of the comments.
[56.4] The Municipality is to reconsider the Trust’s application with the
comments within 90 days of this order.
[56.5] The Municipality is directed to pay the applicant’s costs, on a party and
party scale such costs to include that of counsel on Scale C.
________________________
RALARALA J
JUDGE OF THE HIGH COURT
Appearances
For Applicants: J Bence
Instructed by: PPM Attorneys
For Respondent: J De Waal SC
Instructed by: H Oosthuizen Attorneys