Emalahleni Local Municipality and Another v Propark Association and Another (089/2012) [2012] ZASCA 177; [2013] 1 All SA 277 (SCA) (29 November 2012)

Emalahleni Local Municipality and Another v Propark Association and Another (089/2012) [2012] ZASCA 177; [2013] 1 All SA 277 (SCA) (29 November 2012)

The Supreme Court of Appeal held that the first appellant failed to comply with the mandatory statutory requirements for alienating and closing the public open space. Specifically, there was no evidence of compliance with section 79(18) of the Local Government Ordinance or section 14 of the MFMA prior to the sale and transfer of the property. The procedures for public participation and notification to abutting owners prescribed by section 67 and 68 of the Ordinance were not followed. The resolutions to invite tenders and accept the second appellant's tender were preparatory acts and did not constitute alienation or sale; thus, the orders setting aside those resolutions and the deed of...

Citation
[2012] ZASCA 177
Parties
Appellant: Emalahleni Local Municipality; Appellant: Witbank Muslim Jamaat; Respondent: Propark Association; Respondent: Registrar of Deeds
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2012
Case Number
089/2012
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld in part; orders setting aside the resolutions and deed of sale reversed; order restoring the status quo ante confirmed.
Judges
Nugent, Cachalia, Leach, Petse, Southwood
Legal Topics
Promotion of Administrative Justice Act, Municipal Finance Management Act, Local Government Ordinance, Public Participation, Alienation of Municipal Property, Closure of Public Open Space
Administrative Law Constitutional Law Land and Property Promotion of Administrative Justice Act Municipal Finance Management Act Local Government Ordinance Public Participation Alienation of Municipal Property +1 more

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Parties

Emalahleni Local Municipality

Appellant

Witbank Muslim Jamaat

Appellant

Propark Association

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Did the first appellant comply with section 79(18) of the Local Government Ordinance 17 of 1939 and section 14 of the Municipal Finance Management Act 56 of 2003 before alienating the public open space?
  2. 2 Did the first appellant comply with section 68 read with section 67 of the Ordinance before deciding to close the public open space permanently?
  3. 3 Was the sale and transfer of the property to the second appellant lawful?

Ratio Decidendi

The Supreme Court of Appeal held that the first appellant failed to comply with the mandatory statutory requirements for alienating and closing the public open space. Specifically, there was no evidence of compliance with section 79(18) of the Local Government Ordinance or section 14 of the MFMA prior to the sale and transfer of the property. The procedures for public participation and notification to abutting owners prescribed by section 67 and 68 of the Ordinance were not followed. The resolutions to invite tenders and accept the second appellant's tender were preparatory acts and did not constitute alienation or sale; thus, the orders setting aside those resolutions and the deed of...

Court Disposition

Appeal upheld in part; orders setting aside the resolutions and deed of sale reversed; order restoring the status quo ante confirmed.

Orders

  • 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.
  • 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.