Smith and Others v Stellenbosch Municipality and Others (18381/2022) [2022] ZAWCHC 134 (11 July 2022)

Smith and Others v Stellenbosch Municipality and Others (18381/2022) [2022] ZAWCHC 134 (11 July 2022)

The court held that the Stellenbosch Municipality's decision to accept the donation of land from the Trust was an exercise of executive power, not administrative action, and therefore not subject to review under PAJA. There was no statutory or constitutional requirement for public consultation prior to accepting the donation, and the council meeting was properly held in committee. The Trust's resolution to donate the land was invalid as it was adopted without proper notice to all trustees, lacked quorum, and was not authorised by the Master as required by the Trust Property Control Act and the trust deed. Consequently, the Municipality's decision to accept the donation was a nullity, as...

Citation
[2022] ZAWCHC 134
Parties
Applicant: Thapelo Mbasa Smith; Applicant: The Lanquedoc Housing Association; Applicant: Karel Johannes Pietersen N.O.; Applicant: Dorothea Franciska Fiegeland N.O.; Applicant: Ezra Mapisa; Applicant: Khayalethu Nyakombi; Applicant: Tandokazi Konco; Respondent: Stellenbosch Municipality; Respondent: Eldred Cedric Kleinschmidt N.O.; Respondent: Arthur Maliszo Xola N.O.; Respondent: Michael Fraser N.O.; Respondent: Fredeick Mark Petersen N.O.; Respondent: William Cornelius Keet N.O.; Respondent: Desmond Adolf Adams N.O.; Respondent: The Kylemore Community Development Forum; Respondent: The Pniel Community Development Forum; Respondent: The Lanquedoc Community Development Forum; Respondent: The Meerlust Bosbou Community Devt. Forum; Respondent: Eva Johanna Williams; Respondent: Lilburne Frederick Cyster; Respondent: Nigel Louie Samuels; Respondent: Aubrey John Jacobs; Respondent: Constance Stuurman; Respondent: Gregory Brendon Viljoen; Respondent: Brian Carlo Smith; Respondent: Merlin Winston Rose; Respondent: The Registrar of Deeds, Cape Town; Respondent: The Master of the High Court, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 July 2022
Case Number
18381/2022
Procedural Posture
Review Application / Final Relief Hearing After Interim Order
Outcome
Application partly granted; Trust's donation decision set aside; declaration of unlawfulness regarding demolition; return of building materials ordered; other relief dismissed.
Judges
Binns-Ward
Legal Topics
Promotion of Administrative Justice Act, Municipal Powers and Duties, Donation of Land, Counter Spoliation, Unlawful Eviction, Trustees Fiduciary Duties
Administrative Law Land and Property Civil Procedure Promotion of Administrative Justice Act Municipal Powers and Duties Donation of Land Counter Spoliation Unlawful Eviction +1 more

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Parties

Thapelo Mbasa Smith

Applicant

The Lanquedoc Housing Association

Applicant

Karel Johannes Pietersen N.O.

Applicant

Dorothea Franciska Fiegeland N.O.

Applicant

Ezra Mapisa

Applicant

Khayalethu Nyakombi

Applicant

Tandokazi Konco

Applicant

Stellenbosch Municipality

Respondent

Eldred Cedric Kleinschmidt N.O.

Respondent

Arthur Maliszo Xola N.O.

Respondent

Michael Fraser N.O.

Respondent

Fredeick Mark Petersen N.O.

Respondent

William Cornelius Keet N.O.

Respondent

Desmond Adolf Adams N.O.

Respondent

The Kylemore Community Development Forum

Respondent

The Pniel Community Development Forum

Respondent

The Lanquedoc Community Development Forum

Respondent

The Meerlust Bosbou Community Devt. Forum

Respondent

Eva Johanna Williams

Respondent

Lilburne Frederick Cyster

Respondent

Nigel Louie Samuels

Respondent

Aubrey John Jacobs

Respondent

Constance Stuurman

Respondent

Gregory Brendon Viljoen

Respondent

Brian Carlo Smith

Respondent

Merlin Winston Rose

Respondent

The Registrar of Deeds, Cape Town

Respondent

The Master of the High Court, Cape Town

Respondent

Procedural Posture

Review Application / Final Relief Hearing After Interim Order

Legal Issues

  1. 1 Whether the Stellenbosch Municipality's decision to accept the donation of land from the Trust constitutes administrative action subject to review under PAJA.
  2. 2 Whether the Trust's decision to donate land to the Municipality was validly taken in accordance with the trust deed and applicable law.
  3. 3 Whether the demolition of the sixth and seventh applicants' structure by the Municipality without a court order was lawful.

Ratio Decidendi

The court held that the Stellenbosch Municipality's decision to accept the donation of land from the Trust was an exercise of executive power, not administrative action, and therefore not subject to review under PAJA. There was no statutory or constitutional requirement for public consultation prior to accepting the donation, and the council meeting was properly held in committee. The Trust's resolution to donate the land was invalid as it was adopted without proper notice to all trustees, lacked quorum, and was not authorised by the Master as required by the Trust Property Control Act and the trust deed. Consequently, the Municipality's decision to accept the donation was a nullity, as...

Court Disposition

Application partly granted; Trust's donation decision set aside; declaration of unlawfulness regarding demolition; return of building materials ordered; other relief dismissed.

Orders

  • The application for admission of supplementary affidavits is refused, with no order as to costs.
  • It is declared that the first respondent's conduct in demolishing the structure erected by the sixth and seventh applicants on Erf 10 Lanquedoc without a court order was unlawful.