THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 089/2012
In the matter between:

Reportable

EMALAHLENI LOCAL MUNICIPALITY

FIRST APPELLANT
WITBANK MUSLIM JAMAAT

SECOND APPELLANT

and

PROPARK ASSOCIATION

FIRST RESPONDENT
THE REGISTRAR OF DEEDS

SECOND RESPONDENT

Neutral citation:
Emalahleni Local Municipality & another v Propark
Association & another (089/12) [2012] ZASCA 177 (28
November 2012)

Coram:
NUGENT,
CACHALIA,
LEACH,
and
PETSE
JJA
and
SOUTHWOOD AJA

Heard:
2 NOVEMBER 2012

Delivered:
28 NOVEMBER 2012

Summary:
Constitutional law – review in terms of Promotion of
Administrative Justice Act 3 of 2000 – whether the first appellant
complied with s 79(18) of the Local Government Ordinance 17 of 1939
(Transvaal) and s 14 of the Local Government: Municipal Finance
Management Act 56 of 2003 before it alienated a public open space (a
park) to the second appellant and whether the first appellant complied
with s 68 read with s 67 of the Ordinance before it decided to close the
public open space permanently.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:
North Gauteng High Court, Pretoria (Tolmay J sitting as
court of first instance):

1.
The order of the court a quo reviewing and setting aside the first
appellant’s resolution of 25 October 2007, to invite tenders for the
alienation and development of the public open space is set aside;
2.
The order of the court a quo reviewing and setting aside the first
appellant’s resolution of 31 January 2008, to accept the second
appellant’s tender for the alienation and development of the public
open space is set aside; and
3.
The order declaring the deed of sale between the first and second
appellants dated 8 February 2008 (for the purchase of the property) ab
initio invalid is set aside;
4.
Save as above, the appeal is dismissed.  The first respondent is
ordered to pay the first and second appellants’ costs of appeal,
including, in the case of the second appellant, the costs of two counsel.

______________________________________________________________

JUDGMENT
______________________________________________________________

SOUTHWOOD AJA (NUGENT, CACHALIA, LEACH and PETSE JJA
CONCURRING):

[1] The issue in this appeal is whether the Emalahleni Local Municipality
(first appellant) complied with the relevant provisions of the Transvaal Local
Government Ordinance 17 of 1939 (LGO) and the Local Government :
Municipal Finance Management Act 56 of 2003 (MFMA) before it sold or

alienated a portion of Stand 2243 Witbank Extension 10 (the property) to the
Witbank Muslim Jamaat (second appellant) and decided to close the property
permanently.

[2] In an application for review in terms of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) in the North Gauteng High Court, Pretoria,
Propark Association (referred to herein as the respondent as the second
respondent played no part in the proceeding) obtained orders –
(a)
Reviewing and setting aside the first appellant’s resolutions –
(i)
of 25 October 2007, to invite tenders for the alienation and
development of the property;
(ii)
of 31 January 2008, to accept the second appellant’s tender for
R1 076 000 for the alienation and development of the property;
and
(iii)
of 25 November 2008, to permanently close the property;
(b)
Declaring the deed of sale between the appellants dated 8 February
2008 (for the purchase of the property) ab initio invalid; and
(c)
Ordering the appellants to restore the status quo ante in respect of the
property.
The appellants appeal against all these orders with the leave of the court a
quo. The appellants persist with their contentions that the respondent does
not have locus standi and that there was an unreasonable delay before the
respondent brought its application for  review. Lawyers for Human Rights
(LHR), which was granted leave to intervene as an amicus curiae, filed heads
of argument and sought leave to file an affidavit in support of its contentions at
the hearing of the appeal.

[3] With regard to the sale and alienation of the property, the respondent’s
case in its founding affidavit was that the first appellant had decided to sell,
and had in fact sold and transferred, the property to the second appellant
before the first appellant had complied with the provisions of s 79(18) of the
LGO and s 14 of the MFMA. The first appellant contended that it was not
obliged to comply with s 79(18) of the LGO (it admitted in its answering
affidavit that it had not done so before entering into the deed of sale or

alienating  the property) and that it was only obliged to comply with s 14 of the
MFMA, which it had done. With regard to the closing of the property the
respondent’s case in the founding affidavit was that the first appellant was
obliged to comply with s 68 read with s  67 of the LGO before it could decide
to permanently close the property and that the first appellant had failed to do
so. The first appellant contended that it had complied or substantially
complied with these provisions.

[4] Witbank Extension 10 is an established residential township in
Emalahleni. Before it was subdivided and the property was transferred to the
second appellant, Stand 2243 was 10 385m² in extent and was zoned ‘Public
Open Space’ (Primary uses: parks, public sport and recreation grounds,
public open space, gardens, play parks). In terms of s 63 of the LGO the
council of the first appellant was obliged to manage and control the stand
which was vested in the council ‘in trust to keep the same open (save as is
otherwise provided in this Ordinance or any by-law), and in repair so far as
the finances of the council will permit, for the use and the benefit of the
inhabitants’.

[5] The salient facts are as follows: During 2006 and 2007 the second
appellant lobbied the national Minister of Public Works to allocate or identify a
site in Emalahleni that the second appellant could acquire for the purpose of
erecting a mosque. The second appellant also approached the Mayor of
Emalahleni with a similar request. The first appellant receives many such
requests from religious organisations of different denominations.

[6] The first appellant’s municipal manager then instructed Mr Eric Parker,
the Director: Development Planning, to identify potential sites suitable for
‘church sites’. Mr Parker identified seven such sites including erf 2243
Witbank Extension 10. On 2 February 2007 he prepared a memorandum in
which he identified the sites. (The first appellant’s deponent alleges that the
municipal manager instructed Mr Parker to identify sites that were not needed
by the first appellant to provide a minimum level of basic municipal services –
a requirement of s 14(2) of the MFMA – which Mr Parker confirms. However,

it is noteworthy that in his memorandum Mr Parker did not refer to such an
instruction or state that the sites identified are such sites and no document
has been annexed to the answering affidavit in support of these allegations. In
the absence of such evidence the bald allegations cannot be accepted).

[7] The first appellant informed the second appellant of the properties
identified as potential ‘church sites’. After inspecting the sites the second
appellant, on 10 May 2007, addressed a letter to the municipal manager to
inform him that it regarded the property as the most suitable for its needs and
indicated that it wished to acquire the property.

[8] The second appellant’s application to purchase the property was
considered by the first appellant’s Section 79 Committee on 3 October 2007
and by the Mayoral Committee on 16 October 2007. The latter committee was
advised that it would be advisable to obtain tenders for the alienation and
development of Stand 2243 Witbank Extension 10 and that tenderers should
be made aware of the fact that the property would have to be subdivided,
rezoned and closed and that an exemption would have to be obtained in
respect of an environmental impact assessment, all at the developer’s
expense.

[9] On 25 October 2007 the first appellant’s council resolved to invite
tenders for development proposals for the alienation and development of the
property for the purposes of a church and ancillary uses ‘subject to’ a number
of conditions. These included the rezoning and sub-division of the stand and
the closure of the property. The stated purpose of the resolution was to
enable the council to consider the alienation of Stand 2243 to the second
appellant and it pertinently referred to three other applications to acquire the
property, none of which was from a religious organisation. The report
incorporated the Chief Financial Officer’s comments that public participation
must be completed before the council took a resolution and that the alienation
of land must take place in terms of section 14(1) of the MFMA. The report
recommended that the stand be alienated by a competitive bidding process in
accordance with the MFMA.

[10] On 29 November 2007 the first appellant instructed a valuer to provide
a valuation for the property when zoned ‘Institutional’ (for the purpose of a
church). On 8 January 2008 the valuer provided a valuation in the sum of
R570 000.

[11] On 30 November 2007 and 7 December 2007 the first appellant
published in the Witbank News invitations to submit development proposals
for the alienation and development of the property, which would be subject to
the conditions in the bid documentation. The invitation was also attached to
the first appellant’s notice boards.

[12] The first appellant received two proposals: one from Shalom Ministries
for the sum of R399 000 (including VAT) and the other from the second
appellant in the sum of R1 140 896.04 (including VAT). The first appellant’s
Bid Evaluation Committee evaluated the two proposals and recommended
that the second appellant’s proposal be accepted subject to a number of
conditions. The Bid Evaluation Committee’s report records that the
development of the property for the purpose of creating a church was
approved by the council on 16 October 2007 and that the council resolved
that proposals should be invited for the alienation and development of the
property subject to sixteen conditions.

[13] On 31 January 2008 the first appellant’s Bid Adjudication Committee
accepted the Bid Evaluation Committee’s recommendation with a minor
amendment.

[14] The
municipal
manager
accepted
the
two
committees’
recommendations and, on 5 February 2008, the municipal manager notified
the second appellant that its proposal had been accepted subject to fourteen
conditions; requested the second appellant to indicate whether these
conditions were acceptable and informed the second appellant that as soon
as it received such indication the council would commence with the
permanent closing of the property.

[15] On 8 February 2008 the appellants signed the deed of sale prepared
by the first appellant’s attorneys. The agreement recorded that the first
appellant sold the property to the second appellant ‘subject to the conditions,
limitations and servitudes (if any) referred to in the existing Title Deed to the
property, compliance with: The Local Government: Municipal Finance
Management Act No 56 of 2003, any other Acts, ordinance by law or
regulations as may be applicable to the sale, and subject to the following
conditions and terms as set out in this agreement and as incorporated in
terms of the inner procedure as undertaken by Emalahleni Local Municipal
Council’. (It is common cause that the agreement was subject to suspensive
conditions, inter alia,  that there must be compliance with the relevant
provisions of the LGO and the MFMA; that the second appellant have the
property rezoned from ‘Public open space’ to ‘Institutional’; that  the second
appellant have stand 2243 subdivided so that approximately 1000m² would be
retained as public open space; that the first appellant  permanently close the
property  in accordance with s 68 of the LGO and that the second appellant
obtain authorization to undertake a listed activity in terms of s 22 of the
Environment Conservation Act 73 of 1989.).

[16] On 28 March 2008, purporting to act in terms of s 67 of the LGO and s
21(1)(a) of the Local Government: Municipal Systems Act 32 of 2000 (the
Systems Act), the first appellant gave notice in the Provincial Gazette and the
Witbank News that the first appellant intended to permanently close erf 2243
Emalahleni Extension 10 and indicated where the relevant plan could be
inspected and when and where objections and recommendations could be
lodged. Another notice was also placed at the property for two weeks.

[17] Propark’s members, who were ignorant of the fact that the first and
second appellants had already entered into the sale agreement, lodged
objections to the closure of the public open space. Some of them also
objected to the alienation of the property. The first appellant’s Mayoral
Committee considered these objections and made recommendations to the
council. On 26 June 2008 the council resolved that –

(a) The objections to the permanent closure and alienation of a Portion
of Public Open Space, erf 2243, Emalahleni Extension 10, were
noted;
(b) The objections to the alienation of erf 2243, Emalahleni Extension 10
were rejected based on the reasons in the report of the Director:
Development Planning; and
(c) A hearing of the council’s Land Use Committee must be arranged in
terms of the provisions of the MFMA and the Supply Chain
Management Regulations to consider the objections received against
the permanent closure of a Portion of Public Open Space, erf 2243,
Emalahleni Extension 10.
The council did not accept the recommendation of the Mayoral Committee
that a hearing by an independent person be arranged in terms of the MFMA to
consider the objections to the alienation of the property. It simply noted, and
then rejected, the objections to the alienation despite the fact that the
objections were not lodged in accordance with any procedure prescribed by
the LGO or the MFMA.

[18] On 31 July 2008 the first appellant notified the objectors that in terms of
s 67 of the LGO and s 62 of the Systems Act the hearing to consider the
objections to the permanent closure of the property would take place on 19
August 2008.

[19] On 19 August 2008, at the hearing of the first appellant’s Land Use
Committee to consider objections to the permanent closure of the property,
the committee resolved that ‘more information was needed to take a
resolution and that a further investigation be conducted with regard to the
processes which were followed’. At the hearing the objectors pointed out that
the procedures prescribed by ss 68 and 67 of the LGO had not been complied
with.

[20] On 25 November 2008, the Land Use Committee met again to consider
a further report of the Director: Development Planning. The committee
approved the permanent closure of the property. It did not uphold the

objections to the closure inter alia because ‘the public participation process as
prescribed by ss 67 and 68 of the Local Government Ordinance, 1939, was
substantially complied with and afforded the public sufficient opportunity to
lodge objection’. (The first appellant’s deponent simply refers to the resolution.
He sets out no facts to show that there was substantial compliance with ss 68
and 67 of the LGO. On the strength of the resolution he alleges that the
procedure prescribed by ss 68 and 67 was complied with, alternatively,
substantially complied with. This is clearly not correct as the first appellant did
not give notice of the first appellant’s intention to permanently close the
property to any of the owners of the abutting properties and there is no
evidence to show how the notice was displayed on the property. It also
appears that none of the objectors was present at the meeting because no
notice of the meeting was given.)

[21] On 9 December 2008 the first appellant informed the respondent’s
members of the resolution taken on 25 November 2008 and they were
informed of their right to appeal.

[22] On 23 December 2008 the respondent’s members lodged an appeal
against the decision to close the property and, on 14 October 2009, they were
informed that their appeal against the decision had been dismissed.

[23] The respondent launched its application in March 2010.

[24] As far as the sale and alienation of the property are concerned, it is
clear that two statutory provisions were applicable: s 79(18) of the LGO and s
14 of the MFMA. The relevant part of s 79(18) of the LGO reads:
’79 General powers – The council may do all or any of the following things, namely –

(18)(a) …[S]ubject to the succeeding paragraphs and the provisions of any other law
–
(i)
let, sell, exchange or in any other manner alienate or dispose of any movable
or immovable property of the council. . .

(b)
Whenever a council wishes to exercise any of the powers conferred by
paragraph (a) in respect of immovable property. . .  the council shall cause a notice of
the resolution to that effect to be –
(i)
affixed to the public notice board of the council; and
(ii)
published in a newspaper in accordance with section 91 of the Republic of
South Africa Constitution Act, 1983;
in which any person who wishes to object to the exercise of such power, is called
upon to lodge his objection in writing with the town clerk within a stated period of not
less than fourteen days from the date of the publication of the notice in the
newspaper. . . .
(c)
Where any objection is received by the town clerk in terms of paragraph (b),
the council shall not exercise the power concerned if it is –
(i)
a council referred to in Part I or II of the Sixth Schedule to this Ordinance
unless the council has considered every objection;
(d)
A council wishing to exercise any of the powers contemplated in paragraph
(b) shall cause a valuer or associated valuer registered in terms of the provisions of
the Valuers’ Act, 1982 (Act 23 of 1982), to –
(ii)
evaluate the immovable property it wishes to sell, exchange or in any other
manner alienate or dispose of. . .
(e)
A council, excluding a council referred to in Part I or II of the Sixth Schedule
to this Ordinance shall not –
(ii)
sell, alienate or dispose of immovable property in any other manner…at a
lower amount than the amount at which it has been evaluated,’
in accordance with paragraph (d). . . .’

[25] In Diggers Development (Pty) Ltd v City of Matlosana & another1 this
court held that the section is ‘triggered’ once the council ‘wishes’ to exercise
any power referred to in s 79(18)(a) and that the council must then publish the
notices to enable persons to object. This court also held that the word ‘wish’
means ‘a desire expressed in words, or the expression of such’ and that, in
context, the word connotes a settled intention.2 In Ferndale Crossroads Share
Block (Pty) Ltd & others v Johannesburg Metropolitan Municipality & others3
this court held that s 79(18)(b) is intended to ensure that no immovable

1Diggers Development (Pty) Ltd v City of Matlosana & another [2012] 1 All SA 428 (SCA).
2 Diggers Development supra  22.
3 Ferndale Crossroads Share Block (Pty) Ltd & others v Johannesburg Metropolitan
Municipality 2011 (1) SA 24 (SCA).

property of a local authority is alienated or disposed of without notice to its
ratepayers, and without affording to interested persons the opportunity to
object and to have such objections duly considered and that ‘alienation’ and
‘disposal’ are concepts that are obviously to be liberally construed in the
public interest. The court summarised the effect of non-compliance thus:
‘The effect of non-compliance with the provisions of section 79(18)(b) and (c) of the
ordinance, ie failure by the respondent to cause a notice of its resolution, embodying
its intention to let 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 the power to let, is that the
jurisdictional fact necessary for the exercise of the power was absent. In terms of
section 79(18)(c) a council “shall not exercise the power [to let immovable property]  .
. . unless [it] has considered every objection”. (My emphasis.) 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.’4

[26] Neither s 79(18) nor the Diggers judgment stipulate when the
provisions of s 79(18)(b) must be complied with after the section has been
‘triggered’ but it is clear that this must happen between the time the council
forms a settled intention to exercise the s 79(18)(a) power and the time when
it actually exercises the power. This appears from s 79(18)(c) which provides
that the council shall not exercise the power unless it has considered every
objection (which implies that it has given the required notice in the prescribed
manner and received and considered the objections).

[9] The relevant part of s 14 of the MFMA reads:
‘Disposal of capital assets –
(1)
A municipality may not transfer ownership as a result of a sale or other
transaction or otherwise permanently dispose of a capital asset needed to provide a
minimum level of basic municipal services.
(2)
A municipality may transfer ownership or otherwise dispose of a capital asset
other than one contemplated in subsection (1), but only after the municipal council, in
a meeting open to the public–

4 Ferndale Crossroads supra 22.

(a) has decided on reasonable grounds that the asset is not needed to provide
the minimum level of basic municipal services;
(b) has considered the fair market value of the asset and the economic and
community value to be received in exchange for the asset.
(5)
Any transfer of ownership of a capital asset in terms of subsection (2) . . .
must be fair, equitable, transparent, competitive and consistent with the supply chain
management policy which the municipality must have and maintain in terms of
section 111.’
Clearly, what is contemplated is that the council must take the decision
referred to in subsection (2)(a) and that it must be recorded in the minutes
that the council has considered, in accordance with subsection (2)(b), the
economic and community value to be received in exchange for the asset and
that this must happen before ownership of the capital asset is transferred or
permanently disposed of.

[27] There is no evidence that the first appellant complied with the
abovementioned provisions of s 14 of the MFMA or s 79(18) of the LGO at
any stage (the first appellant admits that it did not comply with s 79(18)).
Although the first appellant alleged that it complied with s 14 of the MFMA and
the first appellant’s Supply Chain Management Policy before it alienated the
property, the first appellant’s deponent did not provide the facts for this
conclusion. There is no allegation that, at a meeting open to the public, the
first appellant decided that the stand was not needed to provide the minimum
level of basic municipal services and he did not set out the reasonable
grounds for such a decision. There was also no allegation that, at a meeting
open to the public, the council considered the economic and community value
to be received in exchange for the stand. The first appellant’s deponent only
referred to a valuation obtained for the stand (R570 000) and the tender price
offered (R1 076 000) but said nothing about the ‘community value’ that would
be received in exchange for the stand.

[28] The respondent’s case in the founding affidavit, which was strenuously
argued on appeal, was that the first appellant had to comply with these
provisions before it resolved on 25 October 2007 to invite tenders for the

alienation and development of the property, before it resolved on 31 January
2008 to accept the second appellant’s tender, before it entered into the deed
of sale on 8 February 2008 and before it transferred the property to the
second appellant on 18 December 2009. While the use of the word ‘triggered’
in the Diggers Development case seems to suggest that there must be
immediate compliance with s 79(18)(b) before anything is done to give effect
to the settled intention to sell, the answer to this is to be found in the
interpretation of the section referred to. There had to have been compliance
with the section before the property was sold or alienated. In the case of s 14
of the MFMA there had to have been compliance before the property was
transferred. None of the first three actions constituted the sale, transfer or
alienation of the property while the fourth act clearly did. The two resolutions
were necessary to determine the identity of the purchaser of the property and
the price for which it would be sold, but they were simply preparatory acts, not
the sale or the alienation of the property.  As far as the deed of sale is
concerned, it was subject to suspensive conditions which had not yet been
fulfilled: in other words there was not yet a completed agreement of sale.5 The
orders granted in respect of these resolutions and the deed of sale, were
therefore wrongly granted. On the other hand, the transfer of the property (the
alienation) to the second appellant before the first appellant complied with the
relevant statutory provisions was unlawful and the order to restore the status
quo ante was properly granted by the high court. The first appellant’s counsel
conceded this in argument and indicated that the first appellant would comply
with the relevant provisions before the deed of sale develops into a completed
contract of sale and the property is transferred to the second appellant. This is
clearly correct and I did not understand the second appellant’s counsel to
seriously contend otherwise. The appeal against the orders reviewing and
setting aside the resolutions taken on 25 October 2007 and 31 January 2008
and declaring the deed of sale entered into on 8 February 2008 invalid ab
initio must be upheld. I now turn to the resolution to permanently close the
park.

5Corondimas & another v Badat 1946 AD 548 at 551; Geue & another v Van der Lith &
another 2004 (3) SA 333 (SCA) para 8; Paradyskloof Golf Estate (Pty) Ltd v Stellenbosch
Municipality 2011 (2) SA 525 (SCA) para 17; Diggers Development (Pty) Ltd v City of
Matlosona & another [2012] (1) All SA (1) 428 (SCA) paras 23-29.

[29] Section 68 of the LGO reads:
‘Notwithstanding anything to the contrary contained in this Ordinance, the council
may close permanently, either in whole or in part, any square, open space, garden,
park or other enclosed space, vested in the council under section 63: Provided that
the provisions of section 67 shall mutatis mutandis apply to the council in the
exercise of the power hereby conferred.’

[30] The relevant part of s 67 provides in respect of a park or open space
(with the necessary changes) that a council (the first appellant’s council is a
council referred to in Part II of the Sixth Schedule to the Ordinance) may
permanently close such park or open space, but only after the following
conditions have been complied with –
(a)
the council has accepted a proposal for the closing of the park or open
space (s 67(1));
(b)
the council has caused a plan to be prepared showing the position of
the boundaries of the park or open space to be closed (s 67(2));
(c)
on completion of the plan, the council has published a notice in the
Provincial Gazette and in at least one English and one Afrikaans newspaper,
circulating in the council’s area of jurisdiction, setting out briefly the council’s
proposals, stating that the plan is open for inspection at a place and during
the hours specified in the notice and calling upon any person who has any
objection to the proposed closing or who will have any claim for compensation
if such closing is carried out to lodge his objection or claim, as the case may
be, with the council in writing, not later than the specified date which shall be
at least 30 days from the date of publication in the Provincial Gazette or
newspaper in which the notice is last published (s 67(3)(a));
(d)
the council has at least 30 days before the time for lodging of
objections and claims will expire –
(i)
caused copies of the notice to be posted in a conspicuous
manner on or near the park or public space which it is desired to close
and has caused such copies to remain posted as aforesaid until the
time for lodging objections and claims has expired (s 67(3)(b)(i));

(ii)
caused a copy of the notice to be served on the owners or
reputed owners, lessees or reputed lessees and the occupiers of all
properties abutting upon the park or open space which it is proposed
to close: Provided that if the name and address of any such owner,
reputed owner, lessee, reputed lessee or occupier cannot after
reasonable enquiry be ascertained a copy of the notice need not be
served on him; Provided further that if any such property has more than
one lessee, reputed lessee or occupier a copy of the notice may be
posted on the principal door of the main building or in another
conspicuous place on such property and need not be served on every
such lessee, reputed lessee or occupier, except where such property is
a sectional titles property, in which case the notice shall also be served
on the owners of the units or body corporate (s 67(3)(b)(ii));
(e)
any person who considers that his interests will be adversely affected
by the proposed closing may at any time before the time for the lodging of
objections and claims has expired, lodge with the council a claim, in writing,
for any loss or damage which will be sustained by him if the proposed closing
is carried out. If such closing is carried out, the council shall pay
compensation for the damage or loss sustained by such person, the amount
of compensation, in default of mutual agreement, to be determined by
arbitration. In assessing the amount of compensation the benefit or advantage
derived or to be derived by the claimant by reason of the closing shall be
taken into account. If such person however, fails to lodge his claim with the
council during the period during which objections and claims may be lodged,
he shall not be entitled to any compensation for any damages or loss
sustained by him (s 67(4)(a));
(f)
if the council finds that the payment of compensation will be too costly
it may resolve not to proceed with the proposed closing (s 67(4)(b));
(g)
after the date specified for the lodging of objections and claims the
council has considered every objection lodged and decided to carry out the
proposed closing (s 67(6)(a));
(h)
after the proposed closing has been carried out, the council must
forthwith, if the closing was carried out in terms of paragraph (6)(a), notify the
Surveyor-General and the Registrar of Deeds or other registration officer

concerned in writing that the closing has been effected properly in accordance
with the provisions of the Ordinance (s 67(9)(a));
(i)
the council must supply the Surveyor-General with a diagram framed
by an admitted Land Surveyor showing all the details of the closing. The
Surveyor-General shall thereupon cause such amendments to be made in the
general plan of the township as are necessary to show such closing and the
Registrar of Deeds or other registration officer concerned shall thereupon
make corresponding entries in his registers (s 67 (10)).

[31] Section 67 therefore provides in considerable detail for a notice to be
given, the contents of the notice to be given, the manner in which notice must
be given, the parties to whom notice must be given and the time to be allowed
to interested parties to lodge objections or claims for compensation. The
purpose of these provisions is clearly to ensure that residents are given every
opportunity to take steps to safeguard their interests in the open space. In
addition, the provisions of Chapter 4 of the Systems Act must be complied
with as these provisions are designed to ensure public participation in
decisions taken by the council which affect their interests.

[32] The first appellant’s deponent alleges that the first appellant complied,
or substantially complied, with these detailed provisions but does not set out
the facts in support of this allegation. He does not refer to the council having
accepted a proposal to close the park or attach a copy of the plan drawn up to
show the boundaries of the closed space. The notices that he refers to do not
comply with s 67 and the manner in which notice was given also does not
comply with the section. There is no proof of the fact that the notices were
displayed conspicuously at the park for the prescribed period and the first
appellant’s deponent states that the first appellant did not give the prescribed
notice to the parties residing in the properties abutting on the park. The first
appellant did receive some objections and obviously rejected them but it
cannot be found on the first appellant’s evidence that the first appellant
complied or substantially complied with the provisions of s 67. The first
appellant’s deponent also does not allege that the first appellant complied with
ss 21 and 21A of the Systems Act which is essential for compliance with the

council’s community participation obligations in Chapter 4 of the Systems Act.
The first appellant therefore acted unlawfully in resolving to close the property
and the high court correctly reviewed and set aside the resolution to do so.
The appeal against that order must also fail.

[33] The appellants contended that the respondent brought its review
application in the high court outside the period of 180 days prescribed by s
7(1) of PAJA. They argued that each decision that the respondent sought to
review was a separate decision and that the respondent was required to bring
its review in respect of each decision within the prescribed period. The high
court correctly did not uphold this argument which was not advanced with
much conviction on appeal. As already pointed out, the transaction required
that the stand be subdivided, rezoned and closed and that an exemption be
obtained for an environmental impact assessment. All these matters were
inextricably linked – there was, for all practical purposes, one composite
transaction – and the refusal of the appeal against the decision to close the
park was the last step before the respondent could institute its review
application. That was done within the prescribed period.

[34] Although the appellants addressed the issue of locus standi in their
heads of argument, counsel did not attempt of persuade this court of the
correctness of the point in oral argument before this court. In my view there is
no substance in the point and it requires no further consideration.

[35] LHR obtained leave to make submissions regarding the infringement of
the second appellant’s members’ rights to freedom of religion and to practise
their religion and form, join and maintain religious associations in terms of ss
15 and 31 of the Constitution in the event of the review succeeding. LHR gave
notice that, at the hearing, it would seek leave to file an affidavit in support of
the submissions it wished to make. Unfortunately LHR failed to file its affidavit
before the hearing or comply with the provisions of Rule 16 of the rules of this
court. Furthermore, LHR’s counsel made no submissions as foreshadowed in
LHR’s heads of argument and it is therefore not necessary to consider the
matters raised there.

[36] The appellants have achieved substantial success in this appeal and
are entitled to their costs of appeal. The second appellant was represented by
two counsel, and the costs of two counsel will be allowed.

[37] The following order is made:

1.
The order of the court a quo reviewing and setting aside the first
appellant’s resolution of 25 October 2007, to invite tenders for the
alienation and development of the public open space is set aside;
2.
The order of the court a quo reviewing and setting aside the first
appellant’s resolution of 31 January 2008, to accept the second
appellant’s tender for the alienation and development of the public
open space is set aside; and
3.
The order declaring the deed of sale between the first and second
appellants dated 8 February 2008 (for the purchase of the property) ab
initio invalid is set aside;
4.
Save as above, the appeal is dismissed.  The first respondent is
ordered to pay the first and second appellants’ costs of appeal,
including, in the case of the second appellant, the costs of two counsel.

______________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL

APPEARANCES

For First Appellant:

T STRYDOM SC

Instructed by:

D K Siwela Attorneys

Pretoria

Honey Attorneys

Bloemfontein

For Second Appellant:

N CASSIM SC (with
S BUDLENDER)
Instructed by:
Ayoob Kaka Attorneys c/o Friedland
Hart Solomon & Nicolson
Pretoria

Symington & De Kok

Bloemfontein

For Respondent:

J G BERGENTHUIN SC
Instructed by:
Van Zyl Le Roux Inc
Pretoria
McIntyre van der Post
Bloemfontein

For Amicus Curiae:

R JANSEN (with G SNYMAN)

Instructed by:
Lawyers for Human Rights
Pretoria
Webbers
Bloemfontein