Shelton and Another v Ndlambe Municipality and Others (621/2014) [2016] ZAECGHC 143 (1 December 2016)

IN THE HIGH

COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: 621/2014

In the matter between:

MARK

WILLIAM SHELTON First

Applicant

JONATHAN

ANDREW CAMPBELL

Second Applicant

And

NDLAMBE

MUNICIPALITY

First Respondent

TRANSNET

LIMITED

Second Respondent

PA RIVER DEVELOPMENT COMPANY

PROPRIETARY

LIMITED

Third Respondent

PEGASUS KHOTSO PROPRIETARY

LIMITED

Fourth Respondent

JUDGMENT

BESHE J:

[1] The two applicants approached this court for an order in the following terms:

“1) That to the extent that it may be found that the Applicants failed to comply with the provisions of section 7(1)(b) of the Promotion of Administrative Justice Act, No. 3 of 2000, the period stipulated in that section be extended to a date after service of this application on all of the Respondents;

2) That the decision of the First Respondent’s Management Committee on 19 February 2002, referred to in clause 1.1 of annexure MWS 13 to the founding affidavit, that the remainder of erf 642, Port Alfred (to be known as remainder of erf 5512, Port Alfred), which was then and still is owned by the Second Respondent and is registered in its name in the Deeds Office be marketed jointly with the adjoining a part/portion of the remainder of erf 361, Port Alfred (to be known as erf 5515, Port Alfred), which was then and still is owned by the First Respondent and is registered in its name in the Deeds Office, be reviewed and set aside;

3) That the resolution of the First Respondent Council on 11 July 2001 that the “proposal by the Pegasus Group for the development of a retail/offices/residential marina on a portion of erf 261, Port Alfred (municipal engineer’s offices) and erf 642, Port Alfred (Propnet) be accepted”, be reviewed and set aside;

4) That the resolution of the First Respondent Council on 23 July 2002 “that the deed of sale in respect of the alienation of a portion erf 361, Port Alfred, to the Pegasus Group… BE APPROVED”, be reviewed and set aside;

5) That the decision of the Second Respondent’s Group Chief Executive Officer on 31 May 2002 to approve “the sale of remainder of erf 642, Port Alfred by Propnet to Messrs Pegasus Khotso (Pty)”, be reviewed and set aside;

6) That the agreement of sale between the First Respondent and the Third Respondent for portion of remainder of erf 361 Port Alfred signed on behalf of the First Respondent on 18 November 2002 and on behalf of the Third Respondent on 10 March 2002 (annexure MWS 15 to the founding affidavit), be declared unlawful and void;

7) That the agreement sale between the Second Respondent and the Third Respondent for remainder of erf 642, Port Alfred signed on behalf of the Third Respondent on 10 March 2002 and on an unknown date by the Second Respondent (annexure MWS 16 (1) – (110) to the founding affidavit), be declared unlawful and void;

8) That the Respondent, jointly and severally, pay the costs of the Applicants, including the costs of two counsel and interest on said costs at the legal rate from a date 14 days after taxation thereof to date of payment in full.”

[2] It is only the third respondent who is opposing the application. First respondent has opted to abide by the decision of this court.[1] Second respondent has taken a usual stance in the matter in that it does not oppose the application. However, second respondent deemed it prudent to place certain facts before this court in relation to the application. Second respondent’s submissions raise the issue of delay in the part of the applicants in launching this application, a delay of over eleven (11) years after the impugned decisions were taken. The fourth respondent did not join the fray.

[3] Who are the parties in this matter.

The applicants are businessmen and longstanding residents of Port Alfred within the jurisdiction of Ndlambe Municipality. They are as such ratepayers and community members of Ndlambe Municipality.

[4] The first respondent is the Ndlambe Municipality, a municipality established under the Local Government Municipal Structures Act, 1998, which has its address at the office of the Municipal Manager, Civic Centre, Causeway, Port Alfred (Ndlambe).

[5] The second respondent is Transnet Soc Limited, a public company incorporated and registered in accordance with the Company Laws of the Republic of South Africa with its principal place of business at the Carlton Centre, 150 Commissioner Street, Johannesburg

(Transnet).

[6] Third respondent is PA River Development Company Proprietary Limited, a private company incorporated and registered in accordance with the Company Laws of the Republic of South Africa with its registered address Coetzee Smit Building, 25/27 First Avenue, Bloemfontein.

[7] The fourth respondent is Pegasus Khotso Proprietary Limited. However no statutory records of this entity could be found following an electronic search conducted on behalf of the applicants on records kept by the Companies and Intellectual Property Commission (CIPC).

[8] What is this application all about?

The application concerns two adjoining portions of land situated in Port Alfred owned by first and second respondents respectively. In particular, applicants seek the reviewing and setting aside of decisions taken by first and second respondents in terms of which the two portions of land were jointly sold to the fourth respondent.

[9] In addition to the relief applicants seek as set out in the notice of motion, they have also filed an interlocutory application in terms of Rule 6 (15). In this application, an order striking out objectionable matter in first and third respondents’ affidavits is sought.

[10] Applicants’ case:

Applicants contend that during December 2013 they became aware that third respondent had obtained approval from the Eastern Cape Development Tribunal (Tribunal) of a land development application in respect of the property in question. The decision by the Tribunal was challenged by the applicants by means of a review application. The outcome of the application is still pending / outstanding.

[11] The probable existence of the transaction between third and first respondents regarding the property prompted an investigation by the applicants. Having invoked the provisions of the Promotion of Access to Information Act (PAIA) applicants managed to obtain some of the documentation / information pertaining to transaction/s in question.

[12] From the said documentation / information the following emerged:[2]

In 1989 first and second respondents resolved that the properties be marketed for joint development.

During 2000 first and second respondents called for proposals for the development of the properties

Fourth respondent (and not third respondent) submitted a proposal for the development of the properties during April of 2002. This proposal was accepted by first respondent in July of 2002.

At the time when fourth respondent submitted its proposal third respondent did not exist. Its registration date is given as 10 July

2002 according to CIPC records.

Third respondent concluded agreements with both first and second respondents for the purchase of the properties.

[13] In February of 2002 first respondent’s Management Committee resolved that its property be marketed jointly with second

respondent’s adjoining property.

[14] Applicants take issue with this resolution and seek its reviewal on the basis that: in resolving as it did, to market its property

jointly with second respondent’s adjoining property, first respondent’s management committee fell fowl of Section 24 of the Constitution. In that it failed to respect, protect and fulfil the rights enshrined in Section 24. Section 24 (b) of the Constitution provides that:

“Everyone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

[15] According to the applicants, based on studies carried on previously, the Ndlambe property is an extremely environmentally sensitive site. That because of its location, the Ndlambe property is prone to flooding. They contend that if the property remains undeveloped or is developed as a park or other public open space, it will continue its role in water management in times of flooding by absorbing water and reducing the speed of water flow. Applicants further contend that in dealing with the property (its portion of the property) first respondent did not consider whether it should retain the property in order to protect the environment for the benefit of the present and future generations of its community. It did not consider other possible uses for the property and other reasonable measures which will constitute ecologically sustainable development and use of a natural resource, whilst at the same time promoting long term economic and social development.

[16] Applicants also complain that first respondent did not give notice to the ratepayers and members of the community so to afford them to a say in the matter (as to how the property should be dealt with). This with a view of giving effect to procedurally fair administrative action as provided for in Section 3 of the Promotion of Administrative Justice Act.[3]

[17] A further ground upon which applicants rely to support their application is the following:

Applicants contend that first respondent in dealing with or disposing of its portion of the property, it failed to comply with Section 124. The section in question provides:

“NON-CONLIANCE WITH SECTION 124 OF THE ORDINANCE

The relevant parts of Section 124 of the Ordinance read as follows:

“Alienation to the letting of municipal property

124. (1) subject to the provisions of subsection (2) and such directions as the Administrator may from time to time determine, a council may-

(a) alienate, let or permit to be built on, occupied, enclosed or cultivated any property owned by the municipality unless it is

precluded from doing so by maw or the conditions under which such property was acquired by the municipality, and

(b) …

provided that the Administrator may, either specifically in respect of any particular action contemplated in paragraphs (a) or (b) or generally in respect of a category of actions so contemplated, by notice in the Official Gazette determine that such action shall be subject to his prior approval.

(2) no Council shall act in terms of subsection (1) unless it has-

(a) advertised its intention so to act, and

(b) considered the objections lodged in accordance with the advertisement contemplated in paragraph (a);

provided that the foregoing provisions of this subsection shall not apply where the proposed letting will be for a period not exceeding 12 months without an option to renew.

(3)…

(4)…”

It is alleged that the sale of the Ndlambe property was not properly advertised by the first respondent as it is required by the

Ordinance. In that first respondent inter alia did not inform the general public that the property was to be alienated or let nor did it inform the public that they had a right to lodge objections to the proposed sale or lease.

[18] Applicants also take issue with the acceptance of the fourth respondent’s proposal, a non-existent entity.

[19] The decision to sell the property to the fourth respondent and not the party whose proposal was accepted is also impugned. This court is urged to declare the agreement unlawful and void.

[20] The sale of the Transnet property is impugned on the basis that the consent of the Minister of Public Enterprises to sell the property was not obtained as required. It is contended that the sale was therefore unlawful.

[21] It is based on the abovementioned allegations that applicants seek the reviewal and setting aside of the decision / actions taken by the various respondents as outlined in the notice of motion.

[22] I have already pointed out that first respondent opted to abide the decision of this court. Be that as it may, three affidavits were filed by the first respondent simply entitled the “affidavit of … … (the name of the person who deposed to the affidavit).

[23] This has prompted an application by the applicants to strike out one Noluthando Vithi’s affidavit as a whole, failing which I am urged to strike out those parts of her affidavit that seek to incorporate Mr Angus Schlemmer’s affidavit. Also sought to be struck out are parts of third respondent’s answering affidavit that was deposed to by Mr Nocolaas Johannes Louw. The same application is made in respect of paragraphs 3.6 and 3.7 of the affidavit deposed to by Mr Derrick Jeoffrey Victor.

[24] The application to strike out certain parts of the abovementioned affidavits is based on the grounds inter alia, that they are either vexatious, scandalous, attack credibility, argumentative or amount to hearsay.

[25] It is trite that where any pleading contains averments which are scandalous, vexatious or irrelevant, a court may, if satisfied that the other party will be prejudiced by the offending pleadings order the striking out of the same.[4]

[26] No submissions were made on behalf of both the first and third respondents in response to the application to strike out. So the application to strike out is not opposed. I therefore do not propose to set out the wording of the impugned paragraphs.

[27] Having heard Mr Richards for the applicants and having read document filed of record, I am satisfied that paragraphs 3.1 and 3.2 of Vithi’s affidavit are both argumentative and attack the credibility of the applicants without any basis having been laid for the attack / conclusion.

[28] The same applies to paragraphs 3.4, the last sentence of 3.5 and 3.6 of the Schlemmer affidavit.

[29] The Louw affidavit:

I am satisfied that the impugned parts of the Louw affidavit are either irrelevant, argumentative, cast aspersions on the credibility of the applicants in sometimes scandalous. The same applies to paragraphs 3.6 and 3.7 of the Victor affidavit.,

[30] Third respondent’s opposition of the application.

The answering affidavit in this regard is deposed to by Louw who described himself as a director of the third respondent.

He further states that he has owned a holiday home in Port Alfred for many years. The basis for opposing the application are:

The relevant resolutions and contracts are not administrative actions as defined in PAJA.

The applicants have not complied with Section 7 (1) (b) of the PAJA.[5]

The applicants have not exhausted the internal remedies available to them in terms of the actions of the first respondent as provided for in the Local Government Municipal Systems Act.

[31] Louw gives a comprehensive description of the area or properties in question with the aid of a map which was very helpful. He however

acknowledges that the properties have “some environmental sensitivity by virtue of their location on a tidal lagoon and river … …”. Further that the properties are of some ecological value. Louw goes on to outline or trace the processes that took place since a decision was taken by first and second respondent to offer the properties to the public for development jointly / as one property. These processes included an application for the rezoning, subdivision and consolidation of the properties. According to Louw these processes attracted great public attention in the media in various civil forums including the Port Alfred Residents and Ratepayers Association. This was so because these applications required mandatory public participation. This was the case from 2008

to 2012. Adding that representations / written comments were made on behalf of the applicants on environmental matters in this regard. Louw goes on to state that the impugned resolutions formed part of the land development application papers. That these resolutions were

therefore in the public domain and “must have been seen by the applicants long before 2013”. And that that the court should not condone applicants’ failure to comply with Section 1 (1) (b) of PAJA.

[32] It is further contended on behalf of the third respondent that even if I were to set aside the impugned resolutions and grant the relief sought, it will be impractical to implement the order because actions were taken by parties who are not party to these proceedings. Because the following actions will not automatically be rendered invalid:

MEC for Housing and Local Government’s approval of first respondent’s authority to lease and sell its portion of the

property;

The Tribunal’s approval of the development of site;

The Premier’s approval of rezoning of the Properties.

[33] It is further contended that third respondent has acted to its detriment and incurred considerable expenditure on the project.

[34] Third respondent contends that fourth respondent should not have been cited because it was not a party to the agreement in question. It was a corporate professional entity which made the proposal to an offer to purchase the properties, acting as a project manager and agent for the submission of the development proposal.

[35] Third respondent complains that applicants do not state which, if any of their rights are affected by the impugned administrative actions. Whether they are acting in their own interest or that of the public.

[36] Third respondent contends that the decisions that applicants seek to have reviewed and set aside are not administrative actions in that:

(a) they do not affect the rights of any person; or

(b) they were in the exercise of executive powers or functions of a municipal council.

[37] It is also contended that applicants did not exhaust the internal remedies available to them prior to launching this application – by appealing against the decision of the Council and Management Committee of the first respondent.

[38] In response to the environmental issues raised by the applicants, third respondent contends that the consolidation of the two

properties followed by a subdivision to separate the Wetland areas from the developed area was meant to protect the Wetland on the property. It is further contended that the environmental issues are the subject of a basic assessment process which is yet to be completed.

[39] As regards the alleged non-compliance with Section 124 of the Ordinance, it is contended that third and fourth respondents were not complicit in this failure and that they cannot suffer or be prejudiced by the said failure or non-compliance.

[40] In reply the applicants maintain that they only became fully aware of all the impugned decisions in 2013 following inter alia their application in terms of the PAIA. That in any event they (applicants) did not contend that they were not aware of the 2004 application but contended that they were under the impression that the proposed developer had been unsuccessful in obtaining subdivision and consolidation as well as of rezoning of the properties concerned.

[41] Applicants also make the point that should they be successful first respondent should be ordered to pay costs because although the expressed the intention to abide by the decision of the court, it filed affidavits raising certain issues.

[42] It is indeed so that it is only the third respondent that is opposing the granting of the relief sought by the applicants. One ground for such opposition is that the application is out of time. This is on the basis that Section 7 (1) of PAJA provides that judicial review proceedings must be instituted without undue delay and before the expiry of one hundred and eighty (180) days from date of the impugned administrative action.

[43] Applicants have sought to show when the impugned decisions came to their knowledge as well as the steps they took after becoming aware of the impugned decisions.

[44] It was submitted that it would be appropriate and in the interest of justice for the court not to dismiss the application on this ground instead to deal with the matter and extend the one hundred and eighty (180) day period.

[45] It is further submitted on behalf of the applicants that the impugned decisions are assailed not only on the basis of PAJA, or on the basis of constituting administrative action, but on the basis / principle of the constitutional principle of legality.

[46] The principle of legality imposes its own requirements on the holder of power – namely the exercise of power is only legitimate as if is lawful. In other words, it must be exercised within the powers conferred on the holder of such power. The power must be exercised rationally.

[47] Third respondent who is the only party resisting the grant of the relief sought does not seem to be persisting in contending that the impugned decisions and actions do not constitute administrative action. This is further emboldened by third respondent’s

instance that the application should be dismissed on the basis that the applicants’ non-compliance with Section 7 (1) of PAJA – The delay rule.

[48] It is trite that review remedy can be refused – or a court has a discretion to refuse the application if there has been a long delay in bringing the application for review. The position is somewhat different though when it comes to review of administrative action in terms of PAJA. This is where Section 7 (1) comes into play. The proceeding having to be brought within one hundred and eighty (180) day limit.

[49] Section 7 (1) (b) of PAJA provides that where no internal remedies exist, the 180 days starts on the date on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the actions and reasons.

[50] The third respondent did not persist on the contention that applicants did not exhaust internal remedies before approaching the court to review the action concerned.

[51] In any event applicants aver that there was no internal remedy that was available to them in relation to the actions of either the first or the second respondent.

[52] Applicants contend that this application was launched within the period of 180 days after they became aware of the impugned actions. Applicants’ case is that it was during 2013 that they became aware that third respondent has been successful in obtaining approval from Eastern Cape Development Tribunal for a land development application in respect of the properties in question. They launched an application to review the decision of the Tribunal. As indicated earlier, according to the applicants, the decision / judgment in respect of this application is still outstanding. Applicants also embarked on an investigation of how third respondent had acquired the right to purchase the properties for development purposes. Part of the process was to request information making use of the Promotion of Access to Information Act, 2000 (PAIA) from first and second respondents. They were provided with some of the information requested by first and second respondents in August and October of 2013. These proceedings were subsequently launched in February 2014.

[53] To counter or rebut that applicants only became aware of the impugned decisions towards the end of 2013, second and third respondents

contend thus: The impugned decisions were taken during 2003. It took applicants eleven (11) years to apply for the reviewal and setting aside of the decisions. They further submit that applicants have not sufficiently explained the delay and thus the application should be dismissed. That applicants’ claim to lack of knowledge of existence of the decisions should not be believed because they have been involved or actively participated in opposing third respondent’s land development application as well as its application for environmental authorisation.

[54] Applicants insist that their knowledge of the 2004 process did not place them in a position where they became aware of impugned decision and all the facts relating thereto. Applicants deny they were aware of the basis for challenging the impugned decisions.

[55] Third respondent retorts that the processes relating to the properties attracted a great deal of public attention in the media

and in various civil forums which included Port Alfred Residents and Ratepayers Association. Resolutions taken through those processes

must have been seen by the applicants long before 2013.

[56] I do not think these are good enough ground / basis to conclude that the applicants were aware of the impugned decisions and all the facts relating thereto.

[57] I am accordingly of the view that applicants have proffered an acceptable explanation why they only launched the application when they did. I therefore find that there has been compliance with Section 7 (1) (b) of PAJA.

[58] Third respondent questions applicants’ locus standi in judicio to launch this application. Third respondent contends that the applicants do not state which of their rights are affected by the sale of the properties.

[59] In paragraph 11 of the founding affidavit the following is stated by the applicants (deposed to by first applicant):

“The second applicant and I both live in Port Alfred (and have had residences therein since 1996 and 2001 respectively; which years both precede the events related in this application) within the area of jurisdiction of Ndlambe, where we own homes in the Royal Alfred Marina, as a consequence of which we have at all material times been ratepayers to Ndlambe. As such, we are members of the community of Ndlambe, which Section 2 of the Systems Act is recognised as part of Ndlambe. We share a burgeoning concern with regard to the extent to which Ndlambe acts lawfully in managing its resources and its property in particular, in the best interest of the community in general and its ratepayers in particular.”

[60] It is so that in terms of Section 2[6] of the Local Government: Municipal Systems Act, the community of a municipality is part of the municipality.

[61] Section 5 of the abovementioned act stipulates rights and duties of members of the local community. Their rights include the following:

“Rights and duties of members of local community

1. Members of the local community have the right-

(a) through mechanisms and in accordance with processes and procedures provided for in terms of this Act or other applicable legislation to-

(i) contribute to the decision-making processes of the municipality; and

(ii) submit written or oral recommendations, representations and complaints to the municipal council or to another political structure or a political office bearer or the administration of the municipality;

(b) to prompt responses to their written or oral communications, including complaints, to the municipal council or to another political structure or a political office bearer or the administration of the municipality;

(c) to be informed of decisions of the municipal council, or another political structure or any political office bearer of the municipality, affecting their rights, property and reasonable expectations;

(d) to regular disclosure of the state of affairs of the municipality, including its finances;

(e) to demand that the proceedings of the municipal council and those of its committees must be-

(i) open to the public, subject to section 20;

(ii) conducted impartially and without prejudice; and

(iii) untainted by personal self-interest;

(f) to the use and enjoyment of public facilities; and

(g) to have access to municipal services which the municipality provides, provided the duties set out in subsection (2)(b) are complied with.”

[62] Applicants also state that they are enforcing their right as provided for in Section 24 of the Constitution which provides:

“24. Environment.—Everyone has the right—

Everyone has the right —

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that —

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

[63] In my view the applicants do have the locus standi in judicio to launch this application as residence and ratepayers of first respondent – and as part thereof.

[64] As far as the merits are concerned, my task has been made easy by the telling concessions that were made by the second respondent in their “concise submissions”. This is also in view of the absence of opposition from the first respondent who has elected to abide the decision of this court.

[65] The following are second respondent’s concise submissions:

“MERITS

OF THE APPLICATION

13. Insofar as merits are concerned, the second respondent is of the view that the impugned decisions are assailable on form and

substance:

14.1 The initial request for proposal was for the long lease of the portions of land at issue herein;

14.2 Towards the end of the process and selection of the successful bidder, the transaction was suddenly changed to one of outright sale. Clearly this decision was in violation of the provisions of section 217 of the Constitution;

14.3 The third respondent was not party to the submission made in response to the request for proposal. The first and second respondent

could not conclude a sale agreement with the third respondent;

14.4 Even if the sale was legitimate, There was no request for the consent of the line Minister for the sale of the portion of land to the third respondent. The second respondent needed such consent insofar as the fourth respondent was the one that was part of the process from the onset;

14.5 The third respondent’s BBBEE credentials are unknown to the second respondent, as such it makes it grossly irregular and contravenes the second respondent’s procurement policy to alienate land to an entity whose broad based black economic

empowerment compliance are unknown.”

[66] As pointed out earlier, third respondent’s opposition is premised on inter alia the following grounds:

Even if I were to grant the relief sought the order will be impossible to implement in hat it will not automatically render the following approval(s):

MEC Housing and Local Government’s approval and that of first respondent to a lease and sell erf 361

the Tribunal’s approval of the development site

the Premier’s approval of the rezoning of the properties.

This especially in view of the fact that those entities were not part of these proceedings.

A further ground is that the third respondent has acted in good faith to its detriment and incurred considerable expenditure in connection with this project.

[67] Applicants make the point that third respondent will not suffer any disproportional prejudice because the land is still standing there, no money has exchanged hands. The transfer of the property has not taken place (This is also confirmed by the second respondent).

[68] I do not think that the submissions made by third respondent are good enough reason to not set the impugned decision aside. In circumstances where the main actors (first and second respondents acknowledge that the impugned decisions are assailable for reasons succinctly stated by the second respondent). Which reason state why the property should not have been offered to the third respondent for sale.

[69] In my view applicants are entitled to the relief that they seek.

[70] As far as costs are concerned, first and second respondents will be ordered to pay the costs of the striking out of an application on an unopposed basis. Although first and second respondents adopted an unusual stance of filling affidavits drawing factors that militate against the grant of the relief sought, I do not think that it will be appropriate to mulct them with costs.

[71] Accordingly there will be an order in the following terms:

It is ordered that:

1) That the decision of the First Respondent’s Management Committee on 19 February 2002, referred to in clause 1.1 of annexure

MWS 13 to the founding affidavit, that the remainder of erf 642, Port Alfred (to be known as remainder of erf 5512, Port Alfred), which was then and still is owned by the Second Respondent and is registered in its name in the Deeds Office be marketed jointly with the adjoining a part/portion of the remainder of erf 361, Port Alfred (to be known as erf 5515, Port Alfred), which was then and still is owned by the First Respondent and is registered in its name in the Deeds Office, be and is hereby reviewed and set aside;

2) That the resolution of the First Respondent Council on 11 July 2001 that the “proposal by the Pegasus Group for the development of a retail/offices/residential marina on a portion of erf 261, Port Alfred (municipal engineer’s offices) and erf 642, Port Alfred (Propnet) be accepted”, be and is hereby reviewed and set aside;

3) That the resolution of the First Respondent Council on 23 July 2002 “that the deed of sale in respect of the alienation of a portion erf 361, Port Alfred, to the Pegasus Group… BE APPROVED”, be and is hereby reviewed and set aside;

4) That the decision of the Second Respondent’s Group Chief Executive Officer on 31 May 2002 to approve “the sale of remainder of erf 642, Port Alfred by Propnet to Messrs Pegasus Khotso (Pty)”, be and is hereby reviewed and set aside;

5) That the agreement of sale between the First Respondent and the Third Respondent for portion of remainder of erf 361 Port Alfred signed on behalf of the First Respondent on 18 November 2002 and on behalf of the Third Respondent on 10 March 2002 (annexure MWS 15 to the founding affidavit), be and is hereby declared unlawful and void;

6) That the agreement sale between the Second Respondent and the Third Respondent for remainder of erf 642, Port Alfred signed on behalf of the Third Respondent on 10 March 2002 and on an unknown date by the Second Respondent (annexure MWS 16 (1) – (110) to the founding affidavit), be and is hereby declared unlawful and void;

7) First and third respondents are ordered to pay the costs of the striking out application on an unopposed basis.

8) Third respondent is ordered to pay applicant’s costs of the application such costs to include costs consequent upon the

employment of two counsel where applicable.

___

N

G BESHE

JUDGE

OF THE HIGH COURT

APPEARANCES

For the Applicants : Adv: EAS Ford SC & Adv: JG Richards

Instructed by

:

NETTELTONS ATTORNEYS

118a High Street

GRAHAMSTOWN

Ref.: Mr Nettelton

Tel.: 046 – 622 7149

For the 2nd Respondent : Adv: Mapoma

Instructed by

:

WHITESIDES ATTORNEYS

53 African Street

Ref.: Mr Barrow

Tel.: 046 – 622 7117

For the 3rd Respondent : Adv: JA Ridl

Instructed by

: DOLD & STONE INC.

10 African Street

Ref.: Mrs Wolmarans/Mrs du Preez

Tel.: 046 – 622 2348

Date Heard

: 5 May 2016

Date Reserved

: 5 May 2016

Date Delivered

: 1 December 2016

[1] Page 841 of record.

[2] Founding affidavit para. 21 page 15 of record.

[3][3] Act 3 of 2000. Section 3 therefore provides:3 Procedurally fair administrative action affecting any person (1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. (2) (a) A fair administrative procedure depends on the circumstances of each case. (b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)- (i) adequate notice of the nature and purpose of the proposed administrative action; (ii) a reasonable opportunity to make presentations; (iii) a clear statement of the administrative action; (iv) adequate notice of any right of review or internal appeal, where applicable; and (v) adequate notice of the right to request reasons in terms of section 5.

[3][3] Act 3 of 2000. Section 3 therefore provides:3 Procedurally fair administrative action affecting any person

(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.

(2) (a) A fair administrative procedure depends on the circumstances of each case.

(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)-

(i) adequate notice of the nature and purpose of the proposed administrative action;

(ii) a reasonable opportunity to make presentations;

(iii) a clear statement of the administrative action;

(iv) adequate notice of any right of review or internal appeal, where applicable; and

(v) adequate notice of the right to request reasons in terms of section 5.

[4] Rule 23 (2) of Uniform Rules.

[5] Section 7 (1) (b) provides that: 7 Procedure for judicial review (1) Any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date— (a) … (b) where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.

[5] Section 7 (1) (b) provides that: 7 Procedure for judicial review

(1) Any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date—

(a) …

(b) where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.

[6] 32 of 2000.