SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Numbers: 11440/2022 & 034964/2022
In the matter between:
KILLARNEY COUNTRY CLUB Applicant
and
MEDIA CAPITAL (PTY) LTD First
Respondent
ANN ARBOR CAPITAL (PTY) LTD Second
Respondent
PLANET EARTH PROPERTIES CC Third
Respondent
COMMON GROUND DEVELOPMENT
FACILITATION (PTY) LTD Fourth
Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
28 April 2026 _________________________
DATE SIGNATURE
2
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Fifth
Respondent
CITY OF JOHANNESBURG PROPERTY
COMPANY SOC LTD Sixth
Respondent
And
In the matter between:
KILLARNEY COUNTRY CLUB
Applicant
and
THE GENERAL MANAGER: LEGAL OF THE CITY OF
JOHANNESBURG PROPERTY COMPANY (PTY) LTD First
Respondent
CITY OF JOHANNESBURG PROPERTY
COMPANY SOC LTD Second
Respondent
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Third
Respondent
THE OTHER OCCUPIERS OF THE
3
KILLARNEY COUNTRY CLUB PROPERTY Fourth to Further
Respondents
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mahosi J
Introduction
[1] Before this Court are t wo interrelated applications. The first is for an order
declaring the sublease agreement concluded between the applicant, Killarney
Country Club (“KCC”), and the first respondent , Media Capital (Pty) Ltd (“Media
Capital”), null and void as having lapsed or cancelled; evicting Media Capital and any
other entity under its supervision (relating to the advertising hoarding) from the
subleased property; and directing it to remove its signage from the said property.
[2] Media Capital filed a notice to oppose the aforesaid application, but
subsequently withdrew its opposition. The fifth respondent, the City of Johannesburg
Property Company Soc Ltd (“JPC”), and the sixth respondent, the City of
Johannesburg Metropolitan Municipality (“COJ”), opposed the application and filed a
counter-application for an order evicting KCC from the property it occupies under the
notarial deed of lease concluded between KCC and COJ (“the Lease”).
[3] The second is brought by KCC in terms of the Promotion of Administrative
Justice Act 1 (“PAJA”) for an order to review and set aside the decision of the first
respondent, the General Manager of Legal Services of JPC , to cancel the Lease.
This application is opposed by JPC and COJ (“the respondents”).
Background
1 Act 3 of 2000, as amended.
4
[4] The dispute has a long history . On or about 13 March 1969, KCC , formerly
known as the Transvaal Automobile Club (“TAC”), concluded the Lease with the City
of Johannesburg Council, now the C OJ, in respect of a portion of portion 145 of the
Farm S[…] No. 5[…] ("the property"), which was registered on 03 December 1970.
The Lease commenced on 01 August 1970, and it was for 50 year s. It would have
expired on 31 July 2020. However, in 1992, it was extended to 31 July 2040. The
rent payable for the property is R2.00 per annum. The material terms of the said
notarial deed provide, inter alia, as follows:
“5. (a) The CLUB shall use the property (in conjunction with the said portions
of Lots 2381 and 2382 Houghton Estate referred to in clause 2 hereof) for the
purpose of a Social and Sports Club, that is to say, for social, recreational and
sporting activities of all kinds, customarily enjoyed by a Social and Sporting
Club. In particular and without affecting the generality of the aforegoing, the
CLUB shall have the right subject to compliance with any legal requirements
to permit and allow and/or to promote or arrange;
(i) Amateur and/or Professional Exhibitions and competitive
matches which entrance fees or other charges may be made,
and coaching classes provided by amateurs and/or
professionals;
(ii) Social functions and dancing;
(iii) Billiards and allied games;
(iv) Card games and indoor games generally;
(v) Cinema shows and exhibitions;
(vi) Stage performance and competitions among members;
(vii) Braaivleis and outdoor entertainments. In particular, the
COUNCIL shall not unreasonably withhold sanction for any
legally and socially acceptable activities of a club of its kind;
(b) No trade or business shall be carried on the property or the portions of
Lots 2361 and 2382 of Houghton Estate referred to in clause 2 hereof,
provided that this shall not apply to the supply by the CLUB, for payment and
.
5
for consumption or use on the said properties by members and their guests,
of meals, refreshments, cigars, cigarettes and tobaccos, and liquor, as well as
sporting goods and equipment, nor to the supply to members and their guests
of sporting goods, equipment and clothing such as are generally sold in the
store of a Club’s golf professional for use in connection with its permitted
recreational and sporting activities, nor to the repair and servicing of any of
the aforementioned;”
[5] Clause 6(i) reads:
“Throughout the currency of the Lease the CLUB shall comply with all laws (including
regulations and by -laws having the force of law) respecting the conduct of its
activities upon the CLUB premises and in particular with the law relating to the sale of
intoxicating liquor and with the terms of its licence and respecting such sale.
[6] In April 2017, KCC’s then management committee concluded an a greement
with Yanky and Rony’s La Vie En Rose CC, which was converted on 04 October
2021 to a private company under the name Chance and Luna (Pty) Ltd and trading
as La Vie En Rose ( “La Vie en Rose”), granting it the occupation of a portion of the
property in exchange for a monthly rent.
[7] On 15 June 2018, KCC agreed with the property development consortium
(“the consortium”) comprising of the second to fourth respondents (Ann Arbor Capital
(Pty) Ltd, Planet Earth Properties CC and Common Ground Development Facilitation
(Pty) Ltd ), mandating them to, inter alia , secure rights in terms of KCC’s lease
agreement for the rights to erect protective nets in certain places along the M1
motorway, to prevent golf balls being hit into traffic , which could be branded with
outdoor advertising and sold to third parties to generate income for KCC.
[8] The aforesaid mandate was amended by way of a written addendum on about
20 August 2019. In essence, the consortium is authorised to negotiate and conclude
contracts with third parties (acting as agent for KCC) for the erection, sub-letting, and
contracts with third parties (acting as agent for KCC) for the erection, sub-letting, and
management of all structures, outdoor advertising and communication masts
(including all existing outdoor advertising and communication masts) on the property,
with revenue distributed as follows: KCC retains 65%, the consortium receives 25%,
and the council obtains 10%. Further, the existing advertising revenue would remain
exclusively with KCC until new agreements were approved, after which the
6
consortium may participate in revenue sharing. Any new advertising income would
first cover the consortium's costs before any distribution occurs. The ma ndate
requires all contracts to comply with legal standards, and the consortium is obliged to
secure the necessary council approvals.
[9] On 17 October 2019, the consortium concluded a lease agreement granting
Media Capital the right to use “the side of the signage infrastructure facing the M1
highway” (the “advertising lease”). Although the advertising lease and the mandate
envisaged the COJ’s approval being obtained, such approval was not obtained prior
to the erection of advertising signboards at the Property.
[10] The JPC, which manages the COJ’s immovable property, became aware of
the breaches. As a result, the JPC ’s Legal Manager issued a letter dated 01 June
2021, in which he informed KCC that the outdoor advertising signs on the property
violated the lease agreement with COJ and demanded their removal within 30 days,
or risk cancellation of the lease. In addition, on 30 June 2021, the City of
Johannesburg's Department of Development Planning refused Media Capital’s
application for a sign located near the M1 north highway, citing non -compliance with
the COJ’s outdoor advertising by -law and instructed it to remove the sign within 60
days. Dissatisfied with the aforesaid decision, on 27 September 2021, Media Capital
appealed the refusal, arguing that the decision was unauthorized, irrational, arbitrary,
and based on an error of law since the cited by-law section did not exist.
[11] Subsequently, KCC and Media Capital exchanged various communications
regarding a dispute over advertising signs on the property and the validity of a lease
agreement. On 30 September 2021, Media Capital’s attorneys expressed concerns
about a breach notice and alleged undue pressure from the JPC. KCC responded on
04 October 2021, stating that the sign was unlawful, asserting its obligation to
04 October 2021, stating that the sign was unlawful, asserting its obligation to
comply with its main lease agreement, and set a deadline for Media Capital to
remove the sign. Media Capital’s attorneys replied on 05 October 2021, challenging
KCC's claims and indicating they would not remove the sign
.
[12] On 22 June 2021, KCC issued a letter informing La Vie en Rose's attorneys
that their client’s tenancy would expire at the end of June, with no renewal planned,
and offered to allow them to remain in occupation for an additional three months to
7
find new premises. On 12 July 2021, KCC , in an email addressed to La Vie en
Rose's attorneys, noted their client’s refusal to accept an offer to extend their
occupation until September 2021, indicated that their continued trading on the
property constituted trespass, and threatened to institute an application for eviction if
they do not respond within a week . On 16 July 2021, KCC reiterated that La Vie en
Rose was unlawfully occupying the premises , requested confirmation of the date of
vacating, and warned of eviction pr oceedings. On 18 November 2021, KCC initiated
arbitration proceedings to evict La Vie en Rose from the property.
[13] On 29 November 2021, JPC issued a second notice of breach demanding
that KCC cure its breach and cease carrying on a business through its arrangements
with La Vie en Rose. Finally, o n 08 April 2022, the JPC’s Legal Manager issued a
notice cancelling the lease.
[14] This prompted KCC to file an application for an order declaring the sub lease
agreement it concluded with the consortium null and void, evicting Media Capital
from the property, and directing it to remove its signage fr om the property. Although
KCC cited JPC and COJ, it sought no relief against them. However, the JPC and
COJ opposed the application and filed a counterclaim seeking to evict KCC from the
property. The Media Capital withdrew its opposition. KCC launched the application to
review and set aside the COJ’s decision to cancel the lease agreement.
KCC’s eviction application against Media Capital
[15] In its founding papers, KCC alleges that the sublease lapsed or was breached
because Media Capital failed to obtain the necessary approvals from the COJ within
six months of the sublease's execution, as required by clause 4.2 of the sublease.
That allegation is not disputed, and this application was unopposed. The sublease,
therefore, lapsed under its own terms . As a result, Media Capital has no right to
therefore, lapsed under its own terms . As a result, Media Capital has no right to
remain on the property. Despite numerous requests by KCC to remove its signage
and vacate the property, Media Capital has refused to do so. Considering that it is
occupying the property without any legal entitlement , KCC is entitled to an order for
its eviction. It was for this reason that this Court granted the order as prayed for by
KCC on the day of the hearing.
Review
8
Grounds of review
[16] KCC contends that the purported cancellation of the lease was invalid
because at the time the second breach notice was issued, it had already remedied
the breach by terminating its commercial relationship with La Vie en Rose. It further
avers that the COJ’s decision to cancel the lease constitutes an administrative action
and is reviewable on three grounds.
[17] The first is that the JPC’s Legal Manager lacked the requisite authority to
cancel the lease on behalf of the COJ . The second is that the decision is
procedurally unfair because KCC, its members, the members of the public who make
use of its facilities, the residents of Killarney, Houghton and surrounding areas; and
its employees (including those who reside at the Property); and the caddies who
reside on the Property, but are not its employees (“the interested and affected
parties”) were not afforded a hearing or an opportunity to make representations
before the decision was taken . The third is that the decision is irrational,
unreasonable, and contrary to the public interest, as it undermines the very social
and sporting objectives the lease was meant to promote.
Ground of opposition
[18] The COJ and JPC dispute these contentions. T hey contend that KCC had not
remedied its breaches by the time of cancellation, because La Vie en Rose and
Media Capital remained in occupation of the property. Regarding the grounds for
review, they argue that the decision to cancel the lease was purely contractual, taken
under the lease agreement, and is therefore not subject to public law review. In the
alternative, it submits that if the decision is administrative, the JPC’s Legal Manager
was duly authorised to take it, and, having provided the KCC with notice of the
breaches and an opportunity to remedy them, the procedure they followed was
sufficient.
Issues for determination
[19] The issues for determination are whether:
9
(a) The decision to cancel the lease agreement was an administrative
action, and if so, is reviewable?
(b) If so, whether a duly authorised official took the decision?
(c) If so, were the audi alteram partem principle applicable and complied
with?
(d) Is the decision otherwise irrational or unreasonable?
(e) Should the eviction counter-application be granted?
Applicable law
[20] Section 1 of PAJA defines the administrative action as follows:
‘In this Act, unless the context indicates otherwise-
“Administration action” means 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 provincial
constitution; or
(ii) exercising a power or performing a public function in terms of
any legislation;
…
[21] Section 6 provides for the judicial review of the administrative action and it
reads:
“(1) Any person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an administrative
action if—
(a) the administrator who took it—
(i) was not authorised to do so by the empowering
provision;
(ii) acted under a delegation of power which was not
authorised by the empowering provision; or
(iii) was biased or reasonably suspected of bias;
10
(b) a mandatory and material procedure or condit ion prescribed by
an empowering provision was not complied with;
(c) the action was procedurally unfair
(d) the action was materially influenced by an error of law.
(e) the action was taken—
(i) for a reason not authorised by the empowering
provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into
account or relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of
another person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) The action itself—
(i) contravenes a law or is not authorised by the
empowering provision; or
(ii) is not rationally connected to
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(old) the reasons given for it by the
administrator;
(g) The action concerned consists of a failure to
take a decision;
(h) the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which
the administrative action was purportedly taken, is so
unreasonable that no reasonable person could have so
exercised the power or performed the function; or
(i) the action is otherwise unconstitutional or unlawful.”
[22] Regarding the test for determining whether the conduct amounts to
administrative action, the Co nstitutional Court in President of the Republic of South
11
Africa and others v South African Rugby Union and Others2, said:
“[141] In section 33 the adjective administrative not executive is used to qualify
action. This suggests that the test for determining whether conduct constitutes
administrative action is not the question whether the action concerned is performed
by a member of the executive arm of government. What matters is not so much the
functionary as the function. The question is whether the task itself is administrative or
not. It may well be, as contemplated in Fedsure, that some acts of a legislature may
constitute administrative action. Similarly, judicial officers may, from time to time,
carry out administrative tasks. The focus of the enquiry as to whether conduct is
administrative action is not on the arm of government to which the relevant actor
belongs, but on the nature of the power he or she is exercising.
…
[143] A series of considerations may be relevant to deciding on which side of the
line a particular action falls. The source of the power, though not necessarily
decisive, is a is the nature of the power, its subject matter, whether it involves the
exercise of a public duty, and how closely it is related on the one hand to policy
matters, which are not administrative, and while the subject matter of a power is not
relevant to determine whether constitutional review is appropriate, it is relevant to
determine whether the exercise of the power constitutes administrative action for the
purposes of section 33. Difficult boundaries may have to be drawn in deciding what
should and what should not be characterised as administrative action for the
purposes of section 33. These will need to be drawn carefully in the light of the
provisions of the Constitution and the overall constitutional purpose of an efficient,
equitable and ethical public administration. This can best be done on a case by case
basis.” [Footnotes omitted]
[23] The determination of whether an action is considered "administrative" should
[23] The determination of whether an action is considered "administrative" should
thus focus on the nature of the power being exercised rather than on the role of the
individual performing it. In so doing, s everal factors, including the source of power,
the subject matter, whether it involves the exercise of public duty , and how closely it
is related to the implementation of the legislation, should be considered. Considering
the complexity of defining administrative action, a detailed analysis aligned with
2 2000 (1) SA 1 (CC).
12
constitutional principles is important to ensure efficient and ethical public
administration.
The nature of the power exercised
[24] The central question in this matter is whether the COJ’s decision to cancel the
lease was an exercise of private or public power. The COJ and JPC contend that it is
not, because it was a purely contractual decision taken under the terms of the lease.
They rely on the term of the Lease, which provides that:
“11 If the Club shall:
(a) Commit any breach of a material term of the lease agreement and
such breach cannot be remedied; or
(b) Continue, after due warning from the COJ, in the commission of minor
breaches of the lease and such breaches are not remedied; or
(c) Continue in the commission of a continuing breach of any form of the
lease for more than thirty days after receipt of a written notice from the
COJ requiring discontinuance; or
(d) Commit any breach of any term of the lease which is capable of being
remedied and failed to remedy it within thirty days after the receipt of
written notice from the COJ requiring it to do so -
The COUNCIL shall have the right on written notice to declare this Lease
cancelled without prejudice to any action for damages which it may have
against the CLUB for breach of contract, and the COUNCIL shall thereupon
be entitled forthwith to enter upon and take possession of the property.”
[25] KCC argues that the power to cancel the lease was derived from the COJ’s
statutory mandate to provide municipal services and that the decision has a profound
impact on the public interest. It relies on South African National Parks v MTO
Forestry (Pty) Ltd 3 (MTO Forestry), where Dambuza JA, writing for the majority,
found that SANParks’ conclusion of a lease agreement and the exercise of powers
3 2018 (5) SA 177 (SCA).
13
under it was an exercise of public power, because the lease was the instrument
through which it discharged its statutory mandate to manage protected areas. The
SCA further stated that:
“The conclusion of the lease agreement and the exercise of powers pursuant to it
was clearly an exercise of public power . The lease agreement itself recognises the
public nature of the lease agreement and the rights and obligations of the lessor that
flows therefrom. Its obligation to consult the public is stipulated in clause 40 of the
lease agreement…” 4
[26] The source of the power to conclude the contract concerned is a key
consideration in determining whether the exercise of a contractual right amounts to
the exercise of public power. This is particularly so when the contract is simply the
instrument through which the public body delivers upon its statutory mandate or
exercises its statutory power.
[27] In the current matter, COJ is the successor in title to the City Council of
Johannesburg, which had control and management of open spaces, gardens, parks,
and other enclosed spaces set apart for the use and benefit of the public . It is
common cause that the City of Johannes burg was mandated to establish and
maintain recreation grounds on town lands and to “ erect, make, establish, maintain
and carry on in connection with, or on recreation grounds established by the council,
changing rooms, lavatories and other conveniences and other buildings or structures
of any nature whatever ... and control of the same shall be vested in the council who
may from time to time - (i) determine the charges to be made for the use thereof, or
(ii) let the same or any portion thereof... to any person or club or other body of
persons...".
[28] It is apparent that t he decision to conclude the Lease entailed the exercise of
the Council’s statutory power under the Ordinance to “let” “recreation grounds” and
associated conveniences “to any person or club or other body of persons” and its
associated conveniences “to any person or club or other body of persons” and its
mandate to provide services, including sporting and social amenities to the public.
Therefore, it is a contract that was intended to serve a public purpose and advance
4 At para 22 ibid.
14
the public interest. Moreover, t he rental payable by KCC is not market-related. It is
nominal because the true quid pro quo is the provision of a public amenity to the
local community. It enables KCC to operate and allows for sporting and social
amenities to be made available to the public.
[29] In addition, COJ i s an organ of the state within the local sphere of
government. Section 4(2) of the Local Government: Municipal Systems Act 5 requires
the council of the Municipality , within the municipality's financial and administrative
capacity and having regard to practical consideration, to-
“(a) Exercise the municipality's executive and legislative authority and use the
resources of the municipality in the best interest of the local community;
…
(f) Give members of the local community equitable access to the municipal services
to which they are entitled.”
[30] Section 156 of the Constitution6, vests COJ with executive authority in respect
of, and a right to administer, the local government matters listed in Part B of
Schedule 4 and Part B of Schedule 5, and any other matter assigned to it by national
or provincial legislation. These include local amenities, local sports facilities, and
municipal parks and recreation. Considering the above, the conclusion of the Lease
and any purported exercise of rights there under are inextricably linked to the COJ’s
constitutional powers and obligations to provide sporting and social amenities to the
public.
[31] In light of the abov e, the source of the COJ’s power to contract in relation to
its properties supports KCC’s contention that the purported termination of the Lease
amounts to the exercise of public power and is an administrative action in that the
purported exercise of contractual rights cannot be divorced from the underlying
source of the power. It is merely the instrument through which the COJ exercises its
statutorily sourced power. There is a clear connection between the purported
5 Act 32 of 2000, as amended.
5 Act 32 of 2000, as amended.
6 Act 108 of 1996.
15
exercise of the contractual right and the COJ’s statutory obligation to provide
municipal services.
[32] The COJ and JPC argue that they derived the power to cancel the lease from
the contract itself rather than from statute. But that is too narrow a view. The power
to contract and the power to cancel a contract are two sides of the same coin. As the
Court held in Fourie Fismer Incorporated v Road Accident Fund 7, when a contract is
concluded in fulfilment of a constitutional duty, the exercise of rights under that
contract remains subject to public law regulation. In the current matter, to the extent
that the power to contract is sourced from the COJ’s statutory mandate, then the
exercise of rights under that contract, including the right to cancel, cannot be entirely
divorced from that statutory foundation.
[33] Moreover, the COJ and JPC were not acting on an equal footing with KCC.
The COJ is a large municipality with considerable resources and coercive powers. It
is undisputed that before 1970, KCC ( then known as TAC ) occupied a nearby
property. The move to the current site was necessitated by the construction of the
N1 highway through the property . This prompted KCC to sell the property it
previously occupied to the City Council of Johannesburg. To accommodate KCC's
relocation, the City Council of Johannesburg acquired portions of the existing
property from third parties , JCI Holdings Ltd., and African Realty Trust . The City
Council of Johannesburg the reafter offered KCC the lease on the newly acquired
properties as a replacement. This is not a relationship of equals. It is a relationship in
which the state holds a position of superiority , which is a further factor in support of
classifying the purported exercise of the COJ’s contractual rights as the exercise of
public power.
[34] The existence of the Lease affects the rights and interests of residents
generally, and in taking action to manage the use of land that is an existing sporting
generally, and in taking action to manage the use of land that is an existing sporting
and recreational amenity, the COJ can never be said to be acting for a purely private
7 (25437/2021) [2021] ZAGPPHC 815 (3 December 2021).
16
purpose. It can have no legitimate private purpose in relation to its management of
an existing public amenity. Consequently, any exercise by COJ of contractual rights
under the lease is not a purely private matter between it and KCC.
[35] The decision to cancel the lease also affects public interest. KCC is not a
commercial entity. It is a voluntary association of individuals to each of whom COJ
owes a duty to provide municipal services, including sporting and social amenities
and recreation facilities. It exists solely to facilitate its members' use of those
services and to extend their availability to the public and has no meaningful
existence separate from its occupation of the property. If the cancellation stands,
KCC will effectively cease to exist . As a result, t he public will lose access to the
sporting and social amenities it provides, thereby impairing or negating rights that
are currently realised. It cannot , therefore, be said that the Lease is purely
commercial in nature. It is the instrument through which the COJ delivers upon its
constitutional and statutory mandate to provide municipal services to the citizens of
Johannesburg.
[36] The COJ and JPC have not identified any countervailing public interest that
justifies this outcome. They have not suggested that they intend to replace KCC with
another operator. They have not suggested that the property will be put to some
other use that benefits the public. The only reason they have given for the
cancellation is that KCC breached the lease. But the breaches were not of a nature
that endangered the public purpose of the lease. The y were attempts by a previous
management committee to generate income to reduce membership costs and
maintain the property. Besides, they have since been remedied, as will be seen
hereunder.
[37] To the extent that t he lease was for a specific public purpose, namely to
facilitate a social and sporting club for community benefit at a nominal rental , it
facilitate a social and sporting club for community benefit at a nominal rental , it
follows that the prohibition on sub-leasing and income generation was central to this
public purpose. As such, the COJ’s decision to cancel was not merely to vindicate a
contractual right, but also to enforce the public -oriented terms of the agreement and
to protect a public asset from exploitation for private gain.
17
[38] For the above reasons, it is apparent that the decision to cancel the lease was
not a simple commercial cancellation under the contract. It was a decision taken by
an organ of state in the exercise of its statutory mandate, which adversely affected
the rights of KCC and the public and had a direct external legal effect. Thus, it was
an exercise of public function and qualifies as an administrative action as defined in
the PAJA. It is subject to public law review.
[39] The conclusion that the decision is subject to public law review does not,
however, automati cally render it invalid. This Court must consider whether the
decision was taken in accordance with the requirements of PAJA and the principle of
legality. KCC raises three grounds of review: lack of authority, procedural unfairness,
and irrationality and unreasonableness.
Authority
[40] The first consideration is the alleged lack of authority. The JPC ’s Legal
Manager made the decision to cancel the lease. KCC contends that he lacked the
authority to cancel the lease agreement because no council resolution existed
authorising him to do so . The JPC argues that the Legal Manager ’s authority is
granted through the “Special Power of Attorney” from the COJ dated 09 June 2002,
and the “Delegations of Authority” within the JPC.
[41] Paragraphs 13.1 and 13.2 of the Special Power of Attorney expressly grant
the JPC the power to enter into and cancel Use Agreements. Paragraph 3.1 equally
expressly grants JPC the power to enter into lease agreements , and paragraph 3.3
authorises JPC to give notice of termination of the lease . However, paragraph 3 is
silent about the power to terminate the lease. The specific inclusion of the words
“give notice of”, which is distinct from authorising the “cancellation of” , denotes that
paragraph 3.3 confers a different type of authority t han that conferred by paragraph
3.1 and 13.2. This difference in wording, which forms the critical context against
3.1 and 13.2. This difference in wording, which forms the critical context against
which paragraph 3.3 is to be interpreted, indicates that it is merely the delivery of the
notice of termination, as distinct from the decision to terminate, that the JPC is
empowered to perform under paragraph 3.3. KCC correctly contends that , to the
extent that the COJ does not rely upon an alleged implied authority, their case is
limited to the express authority provided for in the Special Power of Attorney.
18
[42] The Special Power of Attorney authorises the JPC to “give notice of
termination of the lease”. That is not the same as authorising the JPC to take the
decision to terminate the lease. The distinction is significant. The decision to cancel
a lease is a substantive exercise of power. The giving of notice is a ministerial act
that gives effect to that decision. The special power of attorney does not, on its plain
language, authorise the JPC to make the decision. Therefore, the written “Special
Power of Attorney” does not give the JPC the power to take the decision to cancel a
lease agreement. The JPC’s powers under the Special Power of Attorney extend
only to issuing the notice of termination where the COJ has properly taken the
decision to cancel.
[43] The COJ relies on the “Delegation of Powers to the Managing Director” dated
05 October 2011. However, it does not identify any particular paragraph in the
delegation that confers this authority on the Managing Director. Instead they refer to
the document in general terms when contending that the decision was authorised.
There is no paragraph in the “Delegation to the Managing Director” that deals
specifically with the power to cancel lease agreements. The only paragraph that
pertains to property matters is paragraph 17. However, this delegation only pertains
to “properties in respect of which the COJ or a municipal entity, as the case may be,
has instructed JPC to act and must not be exercised or performed contrary to such
instruction”. It does not include the power to take the relevant decision, but only
extends to the signature of documentation pursuant to a decision already taken by
the COJ. To the extent that the delegation to the Managing Director does not
expressly authorise him to cancel leases, it does not cure this defect.
[44] In addition, COJ relies on the “Sub- delegation of Powers to the Senior
Manager Legal by the Managing Director JPC” dated 14 September 2011.
Manager Legal by the Managing Director JPC” dated 14 September 2011.
Paragraph 4 thereof empowers the Senior Manager: Legal to “ execute any
document which was approved by you on behalf of CoJ or JPC and to execute any
and all instruments and documents which are necessary to give effect to or arise out
of any resolutions …”. This paragraph does not purport to delegate to the Legal
Manager the power to decide to terminate a lease agreement, or even to execute a
notice of termination. It authorises him to perform the formal act of execution of
documents in respect of transactions that have been specifically approved by
19
resolution of the COJ or JPC. The JPC has not placed any such resolution before
the Court.
[45] In light of the above, the delegation of powers and functions to the Legal
Manager does not grant him the power to terminate a lease agreement. Instead, the
delegated powers include procedural matters related to litigation, the representation
of employees in civil and criminal proceedings, and the execution of documents.
Neither the JPC nor the COJ showed any resolution, authorising the termination of
the Lease.
[46] The absence of proper authorisation is a fundamental flaw. Public power can
only be exercised by those who are authorised to do so. When an official acts
without authority, the decision is invalid. This is a ground of review under section
6(2)(a)(i) of PAJA, and under the principle of legality. The decision to cancel the
lease must be set aside on this ground alone.
The audi alteram partem principle
[47] Even if the Legal Manager had been authorised to take the decision, it would
have been set aside on the grounds of procedural unfairness. The decision to cancel
the lease affected KCC, its members, and the public . The COJ and JPC knew this.
However, they gave KCC no opportunity to make representations before the decision
was taken. The breach notices were not a substitute for a hearing. They were
notices of alleged breaches, not notices of a duly contemplated decision to cancel
the lease. Therefore, the decision to cancel was taken without any prior engagement
with KCC regarding the consequences of cancellation or the possibility of
alternatives. This was procedurally unfair and a breach of section 3 of PAJA.
Irrationality and unreasonableness
[48] Additionally, the decision to cancel the lease was not rationally connected to
the purpose of the empowering provision. The purpose of the COJ’s power to
contract was to provide municipal services to the public. Cancelling the lease would
not further that purpose. Instead, i t would end the provision of those services. The
not further that purpose. Instead, i t would end the provision of those services. The
decision was also grossly disproportionate to the aims sought to be achieved. The
alleged breaches were minor and had been remedied. The response was to destroy
20
a hundred-year-old institution that provides valuable public amenities. No reasonable
decision-maker could have taken such a decision in these circumstances.
The breach
[49] Considering the conclusion that the decision to cancel the lease was invalid
for the reasons set out above, it is strictly unnecessary to consider whether KCC had
remedied its breaches. However, for the sake of completeness, this Court records
that it is satisfied that KCC had remedied the breaches before the cancellation was
purported to take effect.
[50] The first breach notice, issued on 01 June 2021, demanded the removal of
outdoor advertising signs. But that notice did not identify the true breach: the
subletting to Media Capital. It did not require KCC to cease its commercial
relationship with Media Capital. It only demanded the removal of the signs. By the
time the second breach notice was issued, KCC had demanded that Media Capital
remove its signs and had ceased to receive any payment from the consortium. The
breach was again remedied.
[51] The second breach notice, issued on 29 November 2021, demanded that
KCC cease carrying on a business through its arrangements with La Vie en Rose.
By that time, KCC had already informed La Vie en Rose that its right of occupation
had ended. It had ceased to receive any rental from La Vie en Rose. It had
demanded that La Vie en Rose vacate the property, and it had instituted arbitration
proceedings for its eviction. The fact that La Vie en Rose remained in physical
occupation does not mean that KCC was still in breach. The breach was the
commercial relationship, not the physical presence. Once KCC terminated that
relationship, the breach was remedied.
[52] The COJ and JPC argue that KCC cannot have remedied the breaches
because La Vie en Rose and Media Capital remained in occupation. That argument
confuses the breach with its consequences. The breach was KCC’s conduct. Once
KCC ceased that conduct, the breach was remedied. The fact that La Vie en Rose
KCC ceased that conduct, the breach was remedied. The fact that La Vie en Rose
and Media Capital were trespassing does not mean that KCC remained in breach.
For these reasons, even if the decision to cancel the lease had been validly taken, it
would have been ineffective because KCC had already remedied the breaches.
21
Eviction application
[53] The COJ and JPC’s counter -application for eviction must also fail , a s it is
based on the cancellation of the lease. Since the cancellation is invalid, the lease
remains in force. KCC is entitled to remain in occupation of the property.
[54] Considering that t he eviction application seeks the eviction of approximately
35 persons who reside on the property, the COJ and JPC have not complied with the
requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act
8 (“PIE”) as they have not joined these persons as respondents. In addition,
they have not applied for an order authorising service of the notice required by
section 4(2) of PIE , nor have they shown that alternative accommodation is
available. In their heads of argument, they say that they are not persisting with the
eviction of these persons “for now”. However, t hat is not an answer to the clear
requirements of the Act. For this further reason, the eviction application should be
dismissed.
Costs
[56] The COJ and JPC have opposed KCC’s application and pursued their
counter-application without any proper basis. They have sought to destroy a valuable
public institution over breaches that had already been remedied. They have acted
without proper authority and without following a fair procedure. Their conduct has
resulted in KCC incurring substantial legal costs. There is no reason why KCC
should bear those costs.
[57] KCC seeks the costs of two counsel. Considering the complexity of the issues
and the importance of the matter, this Court is satisfied that the employment of two
counsel was justified.
[58] Accordingly, the following order is made:
1. The decision of the first respondent to cancel the Lease is declared
unlawful and invalid in terms of sections 6(2)(e)(i), 6(2)(e)(iii),
8 Act 19 of 1998, as amended.
22
6(2)(e)(vi), 6(2)(f)(ii) and 6(2)(h) of PAJA , and therefore reviewed and
set aside.
2. The second and third respondents' counter -application to evict the
applicant, Killarney Country Club, is dismissed.
3. The second and third respondents are ordered to pay the applicant' s
costs, including the costs of two counsel, on scale C.
___________________
D. Mahosi
Acting Judge of the High Court
Gauteng Division, Johannesburg
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives through email. The date for hand- down is deemed to be 28
April 2026.
Appearances
For the applicant: Advocate AJ Lamplough SC and Advocate
LM Spiller
Instructed by: Mr. J. Weinberg of Telfer Incorporated
Attorneys
For the second and third respondents: Advocate M Gwala SC and Advocate H
Salani
Instructed by: Mr. L Ramatshila of Ramatshila -Mugeri
Incorporated Attorneys