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[2013] ZAWCHC 120
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Theron v MEC of the Department of Transport and Public Works (6018/11) [2013] ZAWCHC 120; 2014 (2) SA 557 (WCC) (23 January 2013)
1
REPORTABLE
THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
6018/11
In
the matter between:
JAN
DANIEL THERON
..............................................................................................
Plaintiff
and
THE
MINISTER IN THE WESTERN CAPE
DEPARTMENT
OF TRANSPORT ANDPUBLIC WORKS
...................................
Defendant
JUDGMENT delivered this 23 of
January 2013
NDITA; J
[1] The plaintiff’s instituted
action against the defendant for the specific performance of the
latter’s obligations
arising from an alleged agreement between
the parties for the sale of a residential property situate at 62 CJ
Langenhoven Avenue,
also known as Erf 3990, George, Western Cape.
More specifically, the plaintiff seeks an order directing the
defendant to take all
necessary steps to effect transfer of the
property to him. In the event that the defendant fails to comply with
the above order
within 14 days, he prays that the Sheriff of this
Court be authorised to take such steps on behalf of the defendant.
The defendant
is the Provincial Minister of Transport and Public
Works, in whose portfolio the property in question, held by Deed of
Transfer
No. T6118/1975, vests.
[2] The property was assigned to the
Western Cape Education Department for use by its officials. The
plaintiff is the Area Manager
of the said Department. As its
employee, he has been in occupation of the property, utilising the
house as his official residence,
as well as an office for the
purposes of his work since 1992, pursuant to a lease agreement. It is
alleged by the plaintiff in
his particulars of claim, that he
accepted in writing an offer from the defendant to purchase the
property for an amount of R800
000, 00 (eight hundred thousand rand)
on 17 September 2005, but the defendant failed to transfer the
property to him. Instead,
on 26 November 2007 the defendant issued a
notice that the plaintiff vacate the premises on or before 30 April
2008, thereby repudiating
the agreement.
[3] The defendant in its plea has
denied that a written agreement of sale came into existence pursuant
to the letter it wrote to
the plaintiff, as same was not intended to
constitute an offer. According to the defendant, it did not accept
the plaintiff’s
purported offer and no written contract was
concluded in respect of the subject property. Furthermore, so alleges
the defendant,
the disposal of the property was subject to statutory
requirements of sections 3 and 4 of the Western Cape Land
Administration
Act, No, 6 of 1998 (“The Act”) and the
Regulations promulgated thereunder. For this reason, if the court
finds that
there is a valid offer and acceptance, such a contract is
void as it did not comply with the statutory requirements set out in
the relevant sections.
[4] The background facts to this
action commence with a letter written by the plaintiff on 24 November
1998 to the Education Department
wherein he expressed for the very
first time, an interest to purchase the residential property he was
occupying for a sum of R230
00.00. It is common cause that on receipt
of the letter, the defendant on 18 March 1999 responded thus:
‘
Dear
Sir
OFFER
TO PURCHASE ERF 3990 –GEORGE
Your
offer / enquiry dated 24 November 1998 to purchase the property
refers:
Your
offer has been noted and it will be ascertained whether the property
can be alienated.
If
the property can in fact be alienated, you will be notified and
requested to submit an offer including the suspensive conditions
as
set out in department’s Deed of Sale.
Attached
is a guide setting out the process we will follow as far as possible
relative to the disposal of immovable property as
well as a standard
Deed of Sale referred to above.’
[5] Subsequent to this letter, the
property was endorsed in the name of the Western Cape Provincial
Government and its market value
was as on 24 April 2003 estimated at
R430 000,00. The Department of Transport and Public Works informed
the Plaintiff that the
property may be sold for the stated amount.
The Plaintiff in turn reaffirmed his intention to buy it for the
determined amount.
He thereafter awaited the Defendant’s
response. Two more years lapsed without finality in the promotion of
the sale of the
property. The parties were however, during this
period corresponding with each other. This culminated in a letter
dated 8 September
2005, written by the defendant to the plaintiff to
the following effect:
‘
Geagte
Meneer Theron
KOOPAANBOD:
Woning gelee te CJ Langenhowenweg 62, George, ERF 3990
U
aanbod om bevormelde eiendom te koop het betrekking.
Weens
die tydsverloop in die bevordering van die verkoop van bevormlede
woning, is ‘n opdateerde waardasie nou bekom. ‘n
Onafhanklinke waardeer het op 3 September 2005 die huidige
markwaardeerder het van Erf 3990 George op ‘n bedrag van R800
000.00 vasgestel.
Aangesien
hierdie kantoor in terme van wetgewing (die Wes-Kaapse Wet op
Grondadministrassie, Wet 6/1998), en die Beleid ten opsigte
van die
Verkoop Staatseiendomme verplig word om eiendom” teen die
markwaarde te vervreem, verneem ons graag of u steeds wil
voortgaan
met die tranaksie teen die huldige markwaarde. Indien u nie verder
sou belangstel nie, sal die eiendom dus in terme van
bogenoemde
wetgewing en beleid per openbare tender uitnodiging vervreem word.
Ons
verneem dus graag dringend van u in hierdie verband.’
The above letter served as a basis on
which the plaintiff in his particulars of claim alleges that it
constitutes an offer. Be that
as it may, the plaintiff responded to
the letter as follows:
‘
Geagte
Heer
KOOPAANBOD:
WONING TE CJ LANGENHOVENWEG 62, GEORGE ERF 3990, GEORGE
U
brief onder datum 8 September 2005 is met dank ontvang.
Hiermee
will ek graag bevestig date ek wil voortgaan met die transaksie om
die bogenoemde eiendom teen die huidige markwaarde van
R800 000,00 te
koop.
Ek
verneem graag verder u in hierdie verband, watter stappe gedoen moet
word en wanneer dit sal geskied.
Met
bedank by voorbaat.’
[6] The Plaintiff in his evidence
confirmed the common cause facts alluded to above. Of note is an
unequivocal admission by the
plaintiff that he was advised by the
defendant in a letter as early as November 1998 that certain
procedures relating to the disposal
of the property had to be
followed. He further confirmed in his evidence that a guide and
standard Deed of Sale was attached to
the letter. Under cross
examination the following transpired:
‘
So
wat ons nou kan aanvaar, mnr Theron, is die volgende. U aanvaar dat
hierdie brief maak dit vir u heeltemaal duidelik dat u moet
‘n
aanbod maak vir die koop van die eindom, korrek so? - - - Yes dit is
korrek.
Nou
as ons net ‘n bietjie – die laaste paragraaf, daar is ‘n
verwysing in die laaste paragraaf na a guide setting
out the process,
nou dit is ongelukkig nie aanheg nie, kan u vir ons se presies watter
dokumentasie was by hierdie brief aangeheg
gewees? - - - U Edele ek
aanvaar dat dit die gids is waarna hier verwys word en die document,
die verkoopsdokumnet, deed of sale.
Daar
is verwysing wat u noem die gids en wat ek noem die guide, nie waar
nie? --- Ja dit is korrek
Nou
hierdie gis wat u van praat, het dit vir u vedduidelik dat die wet op
die – die Wes-Kaapse wet op grond-administrasie,
het daarna ook
verwys – u het daarna u u verwys, daardie brief? Nee ek kan
sien mnr Theron is nou ‘n bietjie –
u verstaan die vraag
heeltemal korrek nie. Kom ek doen beter en vra die vraag weer oor.
Hierdie bepaalde brief, het die guide of
die gids, het dit verwys na
die wet wat van toepassing is op die verkoop van hierdie grond? - - -
U Edele ek moet se ek aanvaar
so, wat ek het daardie gids baie lank
gelees het.’
It is not in dispute that the
statutory requirements referred to in the plaintiff’s evidence
had not been complied with.
[7] Given the fact that the
plaintiff’s cause of action is founded on his alleged
acceptance of an offer from the defendant
to purchase the property
for the determined amount, it makes sense that cross-examination
revolved around whether the plaintiff
considered the defendant’s
letter as an offer. To this end, the plaintiff initially testified as
follows:
‘
Ja
die R800 000,00 was my aanbod op die departmente se vereiste dat hy
teen markwaarde van R800 000,00 verkoop mote word.’
Upon further cross-examination on this
aspect, the plaintiff denied that the offer to purchase the property
emanated from him despite
the fact that when the subject property’s
value was estimated at R430 000,00 in 2003, he had written a letter
in similar
terms, in respect of which he, during his evidence readily
accepted he made an offer to the Defendant. It is necessary to refer
to the said letter:
‘
Geagte
Mnr Bailey
KOOPAANBOD:
WONING TE LANGENHOVENWEG 62, GEORGE
U
brief van Mei 2003 in benoemde verband het betrekking.
Ek
wil graag hiermee bevestig date k steeds wil voortgaan met die
transaksie.
Hierdie
skrywe dien dus an ‘n aanbod vir die eiendom teen die bedgra
soos in u brief gemeld.
Geliewe
my asseblief in kennis te stel watter stappe nou verder gedoen moet
word en wanneer dit sal geskied.
Baie
dankie vir u vriendlikheid en doeltreffende diens tot dusver.’
[8] After dispatching the letter
affirming his intention to purchase the property on the terms set out
in the defendant’s
letter, the plaintiff testified that he
awaited the defendant’s response, but would intermittently make
telephonic enquiries.
His wife on occasion also telephonically
enquired on his behalf as to the progress of the sale.
When no progressive response was
forthcoming, the plaintiff on 27 September 2006 appealed to the
defendant Minister, Mr M Fransman,
seeking a speedy finalisation of
the process, presumably in view of the fact that his lease agreement
was also due to expire on
30 April 2008. There is no indication that
the defendant Minister responded to his appeal. However, on 27
November 2007, the defendant
issued a notice directing the plaintiff
to vacate the premises on expiration of the lease. The notice
prompted the plaintiff to
consult with his attorneys, Messrs Francois
Van Zyl. Pursuant to the consultation the plaintiff’s attorneys
wrote a letter
to the defendant’s Property Manager demanding
transfer of the property to the plaintiff’s name. When that did
not materialize,
the plaintiff brought the present action.
[9] Mr Marius Bailey, who works as a
property development officer responsible for disposal of the
property, gave evidence on behalf
of the defendant. He confirmed the
plaintiff’s version but denied the defendant’s letter
referred to above was intended
to be an offer. According to his
evidence the letter cannot and should not be perceived as such
because in terms of procedural
pertaining to acquisition of
government property, a person interested in purchasing property
should submit an offer. Once an offer
has been submitted then a
submission in line with Regulation 4(4) (a) promulgated in terms of
section 10 of the Western Cape Land
Administration Act No 6 of 1998,
is prepared for consideration by the Head of the Department and the
Minister. It is only when
approval to accept the offer to purchase
has been obtained, could the defendant effectively accept the offer.
In the instant matter,
so stated Mr Bailey, the plaintiff’s
offer was not accepted as there was no approval.
[10] It is trite that the plaintiff
bears the onus of proving that on a balance of probabilities that he
offered to purchase the
property for an amount of R800 00,00 and
there was a corresponding clear, unequivocal and unambiguous
acceptance of that offer
by the defendant. Alternatively, the
defendant offered to sell same for the mentioned amount, and the
plaintiff accepted the offer.
Counsel for the plaintiff contended
that the external manifestations of the parties and the words used in
the letter of 8 September
2005 entitled the plaintiff to assume that
the parties were
ad idem
with regard to the terms of the sale
of the property, and that the plaintiff would pay the determined
market related purchase price
to obtain its ownership; and if this
truly be the case, a contract had been formed. In addition, the
none-compliance with the relevant
statutory prescripts, based on the
quasi-mutual assent principle, does not render the contract void, but
voidable. According to
the plaintiff, this is so because the
Regulations relating to the disposal of the subject land are not
peremptory and can be complied
with even after the offer has been
accepted. The defendant’s principal contention is that because
the plaintiff seeks specific
performance in respect of disposal of
provincial state land, it is incumbent on him to prove that the
statutory requirements have
been complied with. Furthermore,
according to the defendant there was no acceptance of the plaintiff’s
offer.
[11] The primary issues for
determination are:
1. Whether there was a valid offer and
acceptance for the purchase of the property.
2. If there was a valid offer and
acceptance, whether the defendant’s non-compliance with s 3 of
the Western Cape Land Administration
Act of 1998 renders the
agreement void or voidable.
[12] I now turn to consider whether
the defendant in the letter of 8 September 2005 accepted the
plaintiff’s offer. What is
abundantly clear from the pleadings,
the documentary as well as the oral evidence is that the plaintiff
had at all times expressed
an unwavering interest in buying the
property. He admitted in his evidence that when he received a letter
from the defendant on
26 May 2003 enquiring whether he was still
interested in purchasing the property, he was already aware that he
had to make an offer.
The plaintiff was advised that his offer would
be submitted for approval. This view is further compounded by the
plaintiff’s
admission that the defendant’s letter of 18
March 1999 explaining to him the process involved in the acquisition
of the property
clearly set out that in order to purchase the
property he had to make an offer. In my view, it is clear on a
preponderance of probabilities,
that the plaintiff’s letter of
17 September 2005 was an offer to the purchase of the property and
not an acceptance of the
offer made by the defendant. There is no
logical explanation why his letter indicating that he was willing to
purchase the property
for an amount of R800 000, 00 should be
construed differently from his previous letters written in similar
vein. Regardless of
whether or not the plaintiff’s letter
constitutes an offer or acceptance, Counsel for the plaintiff argued
that the fact
of the matter is that the intention of the parties is
readily ascertainable that they were of the same mind that the
plaintiff
would buy the property for the agreed amount.
[13] As earlier pointed out, the
disposal of the subject property is governed by of the sections 3(2)
and 3(3) of the Act which
set out the various ways in which the
defendant may alienate or deal with immovable property. The sections
provides as follows:
‘
Disposal
of provincial state land
3
(1)…
(2)
The Premier must publish in the Provincial Gazette in the three
official languages of the province and in Afrikaans, an English
and
an isiXhosa newspaper circulating in the province in those respective
languages, a notice of any proposed disposal in terms
of subsection
(1), calling upon interested parties to submit, within 21 days of the
date of the notice, any representations which
they wish to make
regarding such proposed disposal; provided that the afore-going
provision does not apply to any disposal concerning
the releasing of
provincial state land for a period not exceeding twelve months
without an option to renew.
(3)
The Premier must, in addition to the notices to be published in terms
of
subsection
(2), cause to be delivered to –
the
occupants, if any, of the provincial state land to be disposed of;
the
chief executive officer of the local government for the area in
which the provincial state land to be disposed off is situated;
the
Western Cape provincial directors of the National Departments of
Land Affairs and Public Works; and
the
Western Cape provincial director of the National Department of
Agriculture, if the provincial state land is applied or intended
to
be applied for agricultural purposes,
a
copy of the notice referred to the subsection (1), and must advise
those
persons
that they may, within 21 days of the receipt of such notice, make
written
representations regarding the proposed disposal.
(4)
(a) The notices referred to in subsection (2) and (3) must include
the following
Information
regarding the provincial state land concerned :
the
full title deed description of such land, including the title deed
number, the administrative district in which the provincial
state
land is situated and, if applicable, the nature of any right in or
over such land;
the
current zoning of such land, and
the
actual current use of such land.
(b)
The notice referred to in paragraph (a) must include an office
address at
which
full details concerning the provincial state land in question and the
proposed
disposal may be obtained.’
[14] Section 10 of the Act enjoins the
Premier to make regulations, standards, and procedures applicable to,
inter alia, the acquisition
and disposal of provincial state land.
The Premier of the Western Cape, promulgated the requisite
Regulations, commonly referred
to as Western Cape Land Administration
Act 6 of 1998 Regulations. In terms of Regulation 4, a person
desirous of contracting with
the Province for the acquisition of
provincial state land shall complete a written offer and submit it to
the Component. Once the
written offer is received the Component shall
consider the offer and thereafter a recommendation whether or not it
should be accepted
for further consideration and notify the offeror
in writing. If an offer is accepted for further consideration, as is
in
casu
, the land shall be valued in writing by an independent
valuer. On receiving the valuation report the Component must compile
and
submit to the Head of Component a written report giving reasons
why the offer was accepted for consideration. The Head of Component
shall, after consultation with the Minister decide whether the offer
is to be accepted, and if so, shall sign the contract on behalf
of
the province.
[15] In the present matter, Mr Bailey,
acted in the place of the Head of the Component. In a letter dated 30
June 2003, he wrote
to the Minister T Essop recommending the sale of
the property to the plaintiff. The recommendation was duly endorsed
by the manager:
Property Disposals, Senior Manager: Property
Development and the Assistant Executive Manager : Property
Management. The Minister
however, did not indicate his/her approval
or disapproval of the sale of the property to the plaintiff.
[16] It is against this background, I
believe, that it was contended on behalf of the plaintiff that on the
basis of the quasi-mutual
assent doctrine, the evidence amply
demonstrates that an agreement came into existence. Relying on
Neugarten v Standard Bank of SA Ltd
1989 (1) SA 797
(A) at 813
H-I, Counsel for the plaintiff argued that not all contracts entered
into in contravention of a statutory requirement
are void because
even if an expressed statutory provision exists, it may mean that the
contract is voidable at the option of the
party belonging to the
class for whose benefit the statute was intended. It is so that the
Court in
Neugarten
in interpreting the provisions of section
226 of the Companies Act, held that it is not a rule that in all
cases where the consent
of some person is a prerequisite (whether at
common law or by virtue of a statutory prohibition), that there must
be prior consent,
generally speaking, consent may be given
ex post
facto
by subsequent ratification. Whilst this may be the case,
the facts of the present matter must be understood in the context of
the
applicable legislation as well as Regulations. In
Neugarten,
the Court in considering whether a contract made in conflict with a
statutory provision is null and void applied the following
principles
stated in
Tuckers Land and Development Corporation (Pty) Ltd v
Wasserman
1984 (2) SA 157
(T) at 159 and 160:
‘
1.
The validity of the contract in such circumstances depends upon the
intention of the legislature. Generally the consequence of
such
conflict is nullity of the contract, but that is not an inflexible
rule. A careful consideration of the wording of the statute
and its
objectives may lead to the conclusion that the Legislature did not
intend invalidity to result.
2.
Indiciae
that
point to an intention that invalidity of the contract should result
include the following:
(a)
The use of the words “shall” or “moet” in the
relevant section.
(b)
The fact that the provision is expressed in negative terms
(c)
The provision of a penal sanction for contravention of the relevant
provision, but in that case the question remains whether
or not the
Legislature was satisfied that the criminal punishment was to be
sufficient sanction without the contract itself being
rendered void.
3.
A further consideration is whether or not visiting the contract with
nullity will cause inconvenience or lead to more undesirable
results
than if the wrongdoer is merely punished criminally.’
[17] The Legislature in the present
matter makes use of the word “shall”. However, as seen
from the principles laid
out in the
Wasserman
judgment,
supra
,
the text, on its own is not an indicator of peremptory terms.
However, a proper approach to statutory interpretation was fully
explained by Ngcobo J in
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), para 90:
‘
The emerging
trend in statutory construction is to have regard to the context in
which the words occur, even where the words to
be construed are clear
and unambiguous. Recently, in
Thoroughbred
Breeders’ Association v Price Waterhouse,
the
SCA has reminded that:
“
The
days are long past when blinkered peering at an isolated provision in
a statute was thought to be the only legitimate technique
in it if
seemed on the face when blinkered peering at an isolated provision of
a statute was thought to be the only legitimate
technique in
interpreting it if it seemed on the face of it to have a readily
discernible meaning. As was said in
University
of Cape Town v Cape Bar Council and Another
1986
(4) SA 903
(A) at 914 D –E:
‘
I
am of the opinion that the words of s 3(2)(d) of the Act, clear and
unambiguous as they may appear to be on the face thereof,
should be
read in the light of the subject matter with which they are
concerned, and that it is only when that is done that one
can arrive
at the true intention of the Legislature.’
The first question that arises is what
is the purpose of the Act. The clear purpose of the entire Act is to
regulate the manner
in which the Western Cape Provincial government,
as custodian of public resources and assets, disposes, alienates or
acquires immovable
property. That the Premier must publish in an
Afrikaans, English and IsiXhosa newspapers a notice of the intended
disposal calling
upon interested parties to make representations with
regard to such disposal is clearly indicative of the need to ensure
equitability,
accountability and transparent governance in the
disposal of state land. The mischief the Act seeks to prevent is
unfair and unbridled
exercise of power in the disposal of state land.
To elaborate the process set out in the regulations is clearly
intended such that
no offer for the purchasing of provincial state
land is approved without consultation with the relevant officials and
subsequently
the Minister. This much is equally clear from the
provisions of Regulation 3 (1) which requires the Minister to appoint
a Provincial
Property Committee whose function is to consider a
report from the Component on acquisitions and disposals of provincial
state
land, including offers of acquisition and disposal. Stated
differently, provincial state land which is more than or equal to its
market value can only be disposed subject to Regulation 3 (1).
[18] I do not agree with counsel for
the plaintiff that there exists a contract between the parties
entitling the plaintiff to an
order for specific performance. If the
plaintiff was to be permitted to have the property transferred to him
without consideration
by the Minister, that would have the untenable
result of perpetuating the mischief the legislature seeks to prevent.
A contract
on these facts could only have come into existence after
the defendant had applied his/her mind to the disposal of the
property
in line with the plaintiff’s offer. In
Eastern Cape
Provincial Government and Others v Contractprops 25 (Pty) Ltd
2001 (4) SA 142
SCA, para 5 the court considered the validity of
lease agreement concluded with the respondent without establishment
of a tender
board in terms of the Provincial Tender Board Act
(Eastern Cape) 2 of 1994 and held that:
‘
[5]
Here, of course, we are dealing not with the form in which a statute
requires a transaction to be clothed but with something
more
fundamental: the express conferment of sole power upon a specified
entity, to the exclusion of any other person or entity,
to arrange
leases. (I say ‘to the exclusion of any other person or entity’
because that is undeniably the plain and
ordinary meaning of the
words ‘shall have the sole power __ to arrange the hiring __ of
anything ___ for or on behalf of
the province. That does not mean of
course that the criteria other than the language which are to be
taken into account when the
consequences of non-compliance with
statutory requirements going to form (as opposed to
vires
)
are under consideration are entirely irrelevant when interpreting the
provision. But their persuasive impact would have to be
great indeed
before a departure could be justified from what unambiguously and
plainly appears to be a severely restricted confinement
of
vires
to
enter upon a particular kind of transaction.”
Similarly in
Ferndale Crossroads
Shareblock (Pty) (Ltd) and Others v Johannesburg Metropolitan
Municipality and Others
2011 (1) SA 24
(SCA), the court
considered the effect of the respondent’s council’s
failure to publish a notice of its resolution
to lease certain land
to the applicant in the light of section 79 (18) of the Local
Government Ordinance 17 of 1939, regulating
the method of
acquisition, letting and alienating or disposing of any movable or
immovable property and Mpati P stated thus:
“
[21]
Section 79 (18) (b) is intended to ensure that no immovable property
of a local authority is alienated or disposed of without
notice to
the ratepayers and the affording to interested persons of the
opportunity to object and have such objections duly considered.
“Alienation” and “disposal” are concepts
which are obviously to be liberally construed in the public interest.
The agreement in question detracts from the Council’s ownership
of 627 square metres of its immovable property by transferring
rights
in that property to the appellants for 20 years ... Thus, the
agreement factually gives rise to the very situation that
the
subsection was designated to regulate. The fact that the alienation
may appear to be insignificant in the scheme of the agreement
is
irrelevant: the only question is whether or not there is an
alienation or disposal. Once there is, interested parties could
not
be deprived of the opportunity to object.”
The court further concluded that
:
‘
[22]
The effect of non-compliance with the provisions of s 79 (18) (b) and
(c) of the ordinance, i.e failure by the respondent to
cause a notice
of its resolution, embodying its intention to let the the area of
land described in the agreement, to be affixed
to its public notice
board, and to publish it (the resolution) in a newspaper, calling for
objections to the proposed lease before
exercising its power to let,
is that the jurisdictional fact necessary for the exercise of the
power was absent. In terms of s
79 (18) (c) a council shall not
exercise the power [to let immovable property] ... unless [it] has
considered every objection’.
In the absence of the necessary
jurisdictional fact the respondent could not validly exercise the
power, with the result that the
lease element of the agreement was ab
initio
invalid.’
[23] Following the above dictum, the
court in
Emalahleni Local Municipality and another v Propark
Association & another
(089/12)
[2012] ZASCA 177
declared the
sale of council land
ab initio
invalid for failure to afford
the ratepayers and interested parties the opportunity to object to
the intended alienation.
[24] What is plain from the aforegoing
decisions is that it is imperative that whenever the alienation of
municipal land is contemplated,
there has to be compliance with the
relevant statutory obligations before the deed of sale develops into
a completed contract and
the property transferred to the applicant
despite there being no express statutory declaration of nullity in
the event of non-compliance.
This is so because it must be ensured
that in alienating public immovable property, openness and
accountability is maintained and
that the interests that are to be
served by alienation of such property are not compromised. (See
Rinaldo Investments (Pty) Ltd v Giant Concerts CC
and other
(311/2011)
[2012] ZASCA 34
(29 March 2012). Although in the matter at
hand, it can be accepted that by preparing the report and submitting
it for approval
to the relevant bodies, Mr Bailey sought to bring the
contract in line with the Act but the failure of the defendant to
apply its
mind to the proposed alienation compromised the
accountability and openness the Regulations seek to achieve. In any
event, the
partial compliance cannot elevate an otherwise void
agreement to a completed valid contract. The effect of non-compliance
with
the provisions of s 3(2), and 3 of the Act, as well as
Regulation 4 renders the alleged agreement, ab initio invalid. It is
therefore
my judgment that the plaintiff failed to prove on a balance
of probabilities that there was an offer and acceptance on the basis
of which the defendant should be compelled to perform obligations
arising therefrom. In the circumstances, I deem it unnecessary
to
consider the application of the quasi-mutual assent doctrine as the
above findings are decisive of this matter.
[25] It should be mentioned that the
plaintiff in his evidence raised the fact that he had been kept
waiting for several years for
the transfer of the property and the
defendant kept ‘
shifting the goalposts
’. The
following remarks of Marais JA in the
Contractprops
judgment
at page 148, are, by parity of reasoning equally applicable to the
instant matter:
‘
[13]
. . . The fact that respondent was misled into believing that the
department had the power to conclude the contract is regrettable
and
its indignation at the stance now taken by the department is
understandable. Unfortunately for it, those considerations cannot
alter the fact that leases were concluded which were
ultra
vires
the
powers of the department and they cannot be allowed to stand as if
they were
intra
vires
.
’
In addition, the plaintiff sought an
order for specific performance, which is a contractual remedy. His
claim was not in public
law or administrative law. (See
Ferndale
Crossroads
, supra page 34 paragraph 25).
[26] Flowing from the above findings,
the following order will issue.
The plaintiff’s claim is
dismissed with costs.
NDITA,
J
FOR THE APPLICANT: Adv A
De Vos
SC
INSTRUCTED BY: Francois Van Zyl
Attorneys, George
FOR THE RESPONDENT: Adv D. J.
Jacobs
INSTRUCTED BY: State Attorney
DATE OF HEARING: 07 July 2011
DATE OF JUDGMENT: 23 January 2013