REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: 1926/2008
In the matter between:
WAENHUISKRANS ARNISTON RATEPAYERS

and

JUDGMENT

DE SWARDT, A J:

1.	Waenhuiskrans, or Arniston as it is also known, is a small, picturesque and rather charming seaside village on the Southern Cape coast, close to Bredasdorp and east of Cape Agulhas. It was named Arniston on account of the stranding of a ship by that name close to the village in 1815. The name Waenhuiskrans was given to it, because there is a large cave close to the village which is accessible at low tide.
2.	The coast along which the village is situated, has always been good for fishing and along its shores are rock fish traps which date back to prehistoric times. It has long been home to a fishing community and the old area of the town where fishermen have traditionally resided, known as Kassiesbaai, has been declared a national monument of the highest grade.
3.	The beaches close to the village are largely unspoilt and the Indian Ocean alongside is frequently relatively warm and calm. Immediately to the south of the village one finds the proclaimed De Mond nature reserve and the De Hoop nature reserve lies immediately to the north.
4.	The village is not far from Cape Town and has in recent years become a popular tourist destination. The small hotel adjacent to the fishing harbour was considerably expanded in the 1980's and was further expanded by the addition of a third floor in 2007. There are also two campsites in the village, one of which is operated by the municipality.
5.	Some of the residents at Arniston live and work there permanently, while others have second homes in the village which are mainly occupied during weekends and holidays.

7.	The village has considerable tourism potential because of its unspoilt and rather quaint character. The tourism potential offers employment to the resident community and calls for a measure of expansion of business opportunities. The fishing industry has become increasingly regulated and constrained in the face of declining fish stocks, so that the creation of new employment opportunities ought to be fostered and facilitated. The tension between the preservation of the village's character and the development of fresh business opportunities eventually culminated in a rather bitter and, at times, acrimonious battle which came before this Court.

The Parties

10.	The ratepayers association and the action group were legally represented in this Court by Mr Jeremy Muller SC, assisted by Mr Robert Patrick, acting on instructions of John Taylor Attorneys.
11.	The first respondent, Verreweide Eiendomsontwikkeling (Edms) Bpk ('Verreweide'), is the current registered owner of Erf 599 Waenhuiskrans and seeks to develop the property with a view to establishing a business centre comprising inter alia, shops, holiday apartments and basement parking. It was represented by Mr Robert Ivan Haarburger ('Haarburger'), a director and one of the shareholders of the company. Mr Sean Rosenberg SC acting on instructions of Francis Thompson & Aspden, appeared on its behalf.

12.	The second respondent is the Cape Agulhas Municipality. It was established as a municipality on 22 September 2000 in terms of the Local Government: Municipal Structures Act, No 117 of 1998 ('the MSA') and is the successor in title to the Municipality of Bredasdorp which had been established in terms of Proclamation 132/1994 dated 30 September 1994. It was represented by Mr Reynold Stevens ('Stevens'), the municipal manager who was appointed as such in terms of section 82 of the MSA. For the sake of convenience, I shall refer to the local authority at Arniston/Waenhuiskrans simply as the municipality, irrespective of whether the reference is to the Municipality of Bredasdorp or the second respondent. Mr Ashley Binns-Ward SC, acting on instructions of Kritzingers Inc, appeared for the municipality.
13.	Third respondent is the Registrar of Deeds ('the Registrar'), the official who is tasked with the administration of the deeds office in the Western Cape Province. The Registrar was cited in the proceedings because the relief sought in the application entails that the records in the deeds office be amended. The registrar did not play any active part in the proceedings.

Bird's Authorisation

16.	In the circumstances, I accept that Bird was properly authorised to represent the ratepayers.

Historical Background to the Dispute

18.	Erf 599 is located in the centre of the village, adjacent the main road that enters the village. It is opposite one of the camp sites and is situate close to the original village cemetery which contains many old graves. There appears to be a narrow strip of land which separates Erf 599 from the erf on which the cemetery is situate, but some graves actually lie on the border of Erf 599.

20.	Two of the members of the ratepayers association, both architects, Messrs AS Rudolph ('Rudolph') and AJ Louden ('Loudon'), through KMH Argitekte, also submitted objections to the proposed development. If the development was to be proceeded with, however, they proposed that the municipality make the rezoning subject to certain conditions. Their proposal in this regard read as follows:

'The rezoning of the consolidated erf from Single Residential and Transport Zone to Business Zone is not acceptable without any zoning conditions protecting the interests of surrounding owners. The following conditions must be imposed in terms of section 42(1) of the Land Use Planning Ordinance 15 of 1985:
1.	No vehicle or pedestrian access to be allowed off Dunkirk Street to the proposed development.
2.	A two metre high masonry wall, painted white, to be constructed along the entire north boundary (Dunkirk Street) of the proposed site.
3.	A two-storey height restriction be imposed which is in keeping with the character of Arniston.
4.	A 4.5 metre setback from the boundary on Dunkirk Street, which reflects the setbacks allowed for surrounding residential properties.
5.	A 4.5 metre setback from the boundary line adjacent the cemetery site, in order to respect the nature and character of the cemetery.
6.	Zoning uses to be restricted to Shops, Restaurant, and petrol station with residential above ground floor.
7.	Specific exclusions to be block of flats, hotel and any liquor store or off sales outlet.

9.	Refuse room to be located on an accessible position in Du Preez
Street.
10.	The existing fish cleaning facilities to be relocated and reinstated at the developers cost in an agreed position.
11.	Building plan approval to be subject to the approval of the Arniston Ratepayers Association's Aesthetic Committee.

21.	The KMH conditions were expressly referred to in the agenda for the public meeting of the municipality's council ('the Council') which was scheduled to take place on 25 January 2000 and the agenda contained, inter alia, the following recommendation there anent:

'AANBEVEEL

Dat die Raad die voorgestelde ontwikkeling van erf 214 Waenhuiskrans goedkeur onderhewig aan die volgende voorwaardes:
1.	Dat n uitnodiging vir ontwikkelingsvoorstelle / tender in die pers geadverteer word.
2.	Dat die Publieke Werke Komitee en genomineerde lede van die Waenhuiskrans/Arniston Belastingbetalersvereniging 'n Ontwikkelingskomitee vorm wat bogenoemde tenders oorweeg en n aanbeveling aan die Raad maak vir goedkeuring.
3.	Dat die voorgestelde ontwikkelingsvoorwaardes van KMH Argitekte, soos bo genoem, as goedkeuringsvoorwaardes gestel word en met die ontwikkeling tot uitvoering gebring word, tensy dit deur laasgenoemde komitee met beoordeling van die ontwikkelingsvoorstelle, ter syde gestel word, waarop die betrokke beswaarmakers hul reg tot appel kan uitoefen.'

22. At the meeting held on 25 January 2000, which was open to the public, the Council decided to approve the proposed development in accordance with the aforesaid recommendation and passed resolution 14/2000. An extract from the minutes of the meeting reveals that the resolution followed the recommendation made in the aforesaid agenda, virtually to the letter. The only substantive change which was made, was that condition 4 in the KMH proposal was eliminated, thereby reducing the overall number of conditions to 10.

23. Resolution 14/2000 having been passed and Erf 599 having been created by the subdivision of Erf 214, the municipality called for development proposals by placing advertisements in the local press on 14 December 2001. Only one proposal, dated 5 October 2002, was received - from the Arniston Bed & Breakfast & Coffee Shop Consortium. The aforesaid consortium subsequently replaced it with an amended proposal dated 5 November 2002.

25.	The third advertisement, on 7 March 2003, elicited three proposals - one from each of the two previous contenders and a third from Dream Fisheries. The proposal submitted by Smith, Van Zyl and Kirby on this occasion amended the one previously made. The proposal by the Arniston Bed & Breakfast & Coffee Shop Consortium, however, was identical to that which had been submitted in November 2002, though it was accompanied by a letter which elaborated on the previous proposal. Under the heading 'PROPOSED OWNERSHIP', the letter set out the following:

●	This tender is submitted on behalf of messrs C Swanepoel and E Botha or nominee.

●	The nominee will be a legal entity to be created for the specific purpose of owning the development (hereinaftercalled :- ARNISTON BAY CONSORTIUM / ABC).

●	The founder shareholder/members will be C Swanepoel and E Botha and will include other partners in the development team, financiers and may include members of the community should it be to the benefit of ABC and should ABC need the expertise of such partners on board.

●	The project will be managed by a professional development team ...

22. The aforementioned proposals were municipality's Council on 15 April 2003. that the following decision was taken: considered at a meeting of the The minutes of the meeting reveals that the following decision was taken:

(i)   Dat die Raad die ontwikkelingsvoorstel van Arniston Bed & Breakfast in beginsel aanvaar onderhewig aan die volgende voorwaardes:
(1) Alle wetlike prosedures nagekom word;
(2) n Grondbeskikbaarheidsooreenkoms met die ontwikkelaar aangegaan word;
(3) Daar n ooreenkoms met die ontwikkelaar aangegaan word waarin die detail van die ontwikkeling omskryf sal word.

(ii)   Dat die konsep ooreenkomste waarna hierbo verwys word na die Dagbestuur verwys word vir goedkeuring.'

24.	Pursuant to the decision taken in terms of resolution 121/2003, the municipality on 25 April 2003 advertised its intention to sell Erf 599 to the Arniston Bay Consortium. In terms of the advertisement, objections were due by 26 May 2003.
25.	On 26 May 2003 the Arniston Waenhuiskrans Conservation Association ('the conservation association'), a voluntary association, which was at the time also represented by Bird, requested that the deadline for objections be extended, due to difficulties which it alleged it had experienced in obtaining relevant information from the municipality.

29.	The conservation association subsequently made further objections to the sale of Erf 599 both through its representative, Bird, and through attorneys Mallinicks. Reference was, inter alia, made to the proposed sale price, it being alleged that the municipality had not obtained an independent valuation of the property and that the property immediately adjacent to Erf 599, which was less than half the size of Erf 599, was on the market for R1,1 million.

30.	By letter dated 3 October 2003 the municipality's attorneys, Luttig and Son, gave a written undertaking on its behalf that it would not proceed to transfer erf 599 without notifying the conservation association of its intention to do so.
31.	On 18 December 2003 the Council met to consider and discuss the further objections made by and on behalf of the conservation association. In terms of resolution 251/2003 which was adopted at that meeting, the Council confirmed, inter alia, that the principles of fairness, reasonableness and openness had been followed, that the process around the proposed sale had been correctly conducted and that the sale to the Arniston Bay Consortium would go ahead. Its then Municipal Manager Mr Keith Jordaan ('Jordaan') was empowered and authorised to sign the Deed of Sale.
32.	On 24 February 2004 the municipality, represented by Jordaan, concluded a written Deed of Sale with Arniston Bay Consortium, represented by Mr Pieter Christiaan Swanepoel ('Swanepoel'), in terms whereof Erf 599 was sold to the said consortium for R426,000.00 plus VAT. The Deed of Sale contained, inter alia, the following relevant provisions:

'6. Die eiendom is tans gesoneer vir besigheidsdoeleindes. Die Verkoper gee geen waarborge of ondernemings dat die sonering gewysig of verander sal word om die Koper in staat te stel om uitvoering te gee aan enige voorstelle wat reeds deur die Koper aan die Verkoper voorgele is nie. Alle ontwikkelings wat die Koper op die eiendom beoog, moet op die normale wyse aan die Verkoper voorgele word en sal slegs oorweeg en goedgekeur word op dieselfde wyse as enige ander aansoek.

18.  Hierdie koop is onderhewig aan die volgende spesiale voorwaardes:
18.1 Die Koper sal so spoedig moontlik na ondertekening hiervan, maar in elk geval binne drie (3) maande planne vir die ontwikkeling van die eiendom by die Verkoper indien vir oorweging.
18.2 Indien die Verkoper die planne sou afkeur of wysigings daaraan sou vereis, sal die Koper binne die tydperk wat deur die Verkoper gestel word, nuwe planne voorle vir die ontwikkeling van die eiendom, of die gewysigde planne voorle.
18.3 Sodra daar aan al die vereistes wat die Verkoper mag stel met die goedkeuring van die ontwikkelingsplan voldoen is, sal die Koper onmiddellik 'n aanvang neem met die oprigting van die geboue op die eiendom. Die Verkoper sal geregtig wees om vir die begin en afhandeling van elke aksie 'n tydskedule aan die Koper voor te le en die Koper sal verplig wees om daaraan te voldoen.
18.4...
18.5 Transport van die eiendom sal slegs aan die Koper gegee word teen 'n sertifikaat van die Verkoper of enige persoon of instansie deur hom aangewys, wat bevestig dat die Koper aan al die vereistes van die ontwikkeling voldoen het.'

33.	On 1 July 2004 the Municipal Finance Management Act, 56 of 2003 ('the MFMA'), came into operation.

34.	On 6 October 2004 a tripartite agreement ('the tripartite agreement') was concluded between the municipality (referred to as the seller), Arniston Bay Consortium (described as the first purchaser ) represented by Swanepoel and Verreweide (which was described as the second purchaser), also represented by Swanepoel.

35.	The preamble of the tripartite agreement referred to the Deed of Sale dated 24 February 2004, whereafter it stated, inter alia, that:

		'EN NADEMAAL

dit nie duidelik is wie die koper is nie en die verkoper in elk geval versoek is om die koop te kanselleer en 'n nuwe koop te sluit met die tweede Koper.

NOU DAAROM

kom die partye soos volg ooreen:
1. Die koop tussen die Verkoper en die eerste Koper word hiermee gekanselleer.
2. Die tweede Koper koop hiermee van die Verkoper die eiendom soos hierbo beskryf op presies dieselfde voorwaardes en terme as waarop die eerste Koper dit van die Verkoper verkoop (sic) het en soos uiteengesit in die aangehegte koopbrief.
3. ...
4. ...
5. Die tweede Koper sal gebonde wees en gebonde bly aan die bepalings van die aangehegde koopbrief en Pieter Christiaan Swanepoel in sy hoedanigheid as verteenwoordiger van die tweede Koper verbind homself hiermee as borg en mede hoofskuldenaar in solidum met die tweede Koper teenoor die Verkoper vir die nakoming van die tweede Koper van al die verpligtinge in terme van hierdie ooreenkoms.'

36.	During the first half of 2006 a dispute arose between the municipality and Verreweide regarding the time when the municipality was obliged to pass transfer of Erf 599 to Verreweide. The dispute was referred to arbitration. In the event, the municipality and Verreweide settled their disputes and concluded a written settlement agreement. In clause 1.3 of that agreement Verreweide consented to a condition being included in the title deed to the effect that ownership of Erf 599 would revert to the municipality in the event that Verreweide failed to bring the development to practical completion, in accordance with the plans which had already been submitted to the municipality, by 31 December 2008.   In clause 1.9 of the settlement agreement, reference was made to the fact that Verreweide intended to apply for the rezoning of the property, as well as for certain departures and consent to an altered use of Erf 599.
37.	On 25 January 2007 transfer of ownership in Erf 599 to Verreweide was registered in the Deeds Office in terms of Title Deed 4257/2007.
38.	Shortly after registration of transfer as aforesaid, Haarburger, or an entity associated with him, concluded a sale with Verreweide in respect of Erf 599 at a price of R5 million.
39.	On 27 March 2007 and 21 June 2007 the municipality was advised by two sets of lawyers that Verreweide could not alienate Erf 599 by reason of its development obligations. The sale was accordingly not implemented, but Haarburger and his fellow investors subsequently simply purchased the shares in Verreweide - at a price of R4,8 million.
40.	On 7 August 2007 Haarburger addressed an e-mail to the municipality in the following terms:

'(w)e are in the process of buying all the shares in Verreweide Eiendomsontwikkeling (Edms) Bpk. In terms of the Building Regulations are there any provisions prohibiting Verreweide Eiendomsontwikkeling from submitting new building plans that comply with the Zoning regulations, Development proposals and the Arniston Town Planning Scheme?'

44. On 7 December 2007 the municipality's building committee evaluated the revised plans submitted by Verreweide. On 10 December 2007 the municipality's building inspector, P K Siebrits ('Siebrits') notified Verreweide of certain problems which had arisen in regard to the revised plans which had been submitted. These included, inter alia, that the 4.5m building line on Dunkirk Street and at the adjacent cemetery was relevant to the basement level; that the Council's decision in terms whereof building plans had to be submitted to the ratepayers association's aesthetics committee had to complied with (Siebrits indicated that his department would so submit the plans); and that the certificate provided by the land surveyor was insufficient to determine whether the proposed basement was in fact a basement as specified in the Scheme regulations.

48. On 20 December 2007 Verreweide notified the municipality of its appeal to Jordaan in terms of the Systems Act. It did not lodge any appeal to a review board in terms of the Building Act.

50.	On 1 February 2008 the ratepayers launched proceedings to interdict the construction work on Erf 599. The application was set down for hearing on 7 February 2008. Verreweide, however, conceded that it could not build without approved plans and on 14 February 2008 an Order was obtained from this Court by agreement in terms whereof Verreweide was obliged to cease construction until such time as it had obtained plan approval. The Order further provided, inter alia, that if the building plans were subsequently approved, the ratepayers association would be given three business days' notice prior to the resumption of construction work on Erf 599.
51.	In the mean time, the ratepayers association, having become aware that the municipality had adopted the KMH proposals which provided for input from its aesthetics committee, advised the municipality on 7 February 2008 that its aesthetics committee had not been provided with a copy of the revised plans that Verreweide had submitted. In response, the attorneys for the municipality on 8 February 2008 requested to be informed of the status of the aesthetics committee and called for a copy of the constitution of the ratepayers association.

53.	On 18 February 2008, Jordaan published his appeal award. He started from the premise that Erf 599 had been rezoned for business use on 25 January 2000 and upheld the appeal. He found, inter alia, that Verreweide had not breached the conditions of rezoning by failing to obtain the approval of the ratepayers association's aesthetics committee, because such committee did not exist.
54.	Verreweide returned to site on Friday 22 February 2008 and recommenced construction. By that time, however, the plans which it had submitted had still not been approved. Consequently, on Monday 25 February 2008, the ratepayers association delivered notice of an application in terms whereof it renewed and supplemented its application for urgent interdictory relief. The ratepayers association's papers were served on the attorneys for Verreweide and the municipality on the afternoon of 25 February 2008. In those papers, the ratepayers association for the first time raised the issue that the rezoning of Erf 599 appeared to have lapsed in January 2002. The ratepayers association sought leave to set the renewed application down for hearing on 27 February 2008. It was, however, subsequently agreed that Verreweide would file its answering affidavits by 29 February 2008 and that the matter would be set down for hearing on 5 March 2008.

57.	Verreweide duly filed its papers at approximately 15h30 on the afternoon of 29 February 2008, after having obtained written advice from its senior counsel to the effect that the municipality could 'revive' a zoning that had lapsed after the period of two years referred to in section 16 of LUPO had run its course. Copies of the agenda and minutes of the aforesaid Council meeting on 29 February 2008 were attached to Haarburger's answering affidavit. Haarburger also attached a copy of a letter by Jordaan, dated 29 February 2008, which informed Verreweide that the business zoning of Erf 599 had been extended, that its revised plans had been approved and that these were ready for collection. In fact, however, the plans were only approved on 3 March 2008 and certain conditions were attached to such approval. When Jordaan became aware that the date when the plans were approved was reflected as being 3 March 2008, he instructed Marthinus to backdate the approval to 29 February 2008. The ratepayers association was not notified of the conditions which were attached to the approval of the revised plans and only became aware thereof during the course of the proceedings in this Court.
58.	The hearing of the ratepayers association's renewed application for an interdict was set down for 4 March 2008. On that day, the Heritage Agency sought leave to intervene. As a result, the ratepayers association's application was postponed for hearing on 9 April 2008.

60.	On 18 March 2008 Verreweide launched another appeal to Jordaan in terms of section 62 of the Systems Act, against certain of the conditions which had been imposed at the time when the revised plans were approved. (Two of these conditions had underpinned the aforesaid letter which Marthinus had prepared on 14 March 2008.) The ratepayers association was not notified of the aforesaid appeal. At the same time, Verreweide applied to further amend the revised plans by raising the finished floor level of the basement from 26.55m as shown on the plan, to 27,36m.

62.	The renewed interdict application and the intervention application by the Heritage Agency was ultimately heard by Louw, J on 9 April 2008. On 22 April 2008 Louw J handed down judgment interdicting further construction on erf 599 pending the final determination of these review proceedings.
63.	On 23 May 2008 the municipality notified the ratepayers association that it had received an application by Verreweide to amend the rezoning conditions. Marthinus had reservations about the application and communicated these to Jordaan by e-mail. Marthinus pointed out, inter alia, that the application contained insufficient detail and/or information and that it could accordingly not be properly considered. It was also not possible to make a recommendation, to deal with objections, or to explain the rationale behind the proposed rezoning. In the event, the ratepayers association and 117 other parties objected to the proposed rezoning.

64. On 9 September 2008 a special meeting of the Council was convened. At such meeting, the Council adopted a resolution in terms whereof certain of the rezoning conditions which had been imposed on 25 January 2000 were amended. The amendments included, inter alia, the following:
64.1.	the increase of the two-storey height restriction to a three-storey height restriction;
64.2.	the 4.5m setback from the boundary line adjacent the cemetery would not apply to the boundary walls or to the basement (which had in fact been constructed to a level well above ground on the boundary adjacent the cemetery);
64.3.	whereas a block of flats, hotel, liquor store or off sales outlet on erf 599 had been prohibited, the only exclusion which remained, was a block of flats;

RELIEF SOUGHT

66.1. the transfer of Erf 599 from the municipality to Verreweide on 25 January 2007;
66.2. the appeal decision of Jordaan on 18 February 2008;
66.3. the decision of the municipality made on 29 February 2008 to extend the rezoning of Erf 599 as business;
66.4 the purported approval by the municipality on 29 February 2008 of the building plans of Verreweide in respect of its construction upon Erf 599.

The Transfer of Erf 599

68.1.	the provisions of section 14 of the MFMA came into operation on 1 July 2004 and inasmuch as transfer of erf 599 only occurred on 25 January 2007, the municipality had been obliged to comply with those statutory provisions, but it has not done so;
68.2.	Jordaan had no authority to conclude the tripartite agreement entered into on 6 October 2004 in terms whereof Verreweide purchased erf 599 and any transfer which occurred pursuant to such sale could accordingly not be allowed to stand;

68.3 the municipality had failed to establish a development committee in order to evaluate development proposals in respect of erf 599, as was required in terms of resolution 14/2000 dated 25 January 2000. Resolution 14/2000 constitutes a mandatory or material procedure or condition which was a prerequisite to the valid sale and transfer of erf 599 and in the absence of compliance therewith, the transfer could not have been validly effected.

69.	Verreweide and the municipality have opposed the review of the transfer aforesaid on the grounds that:
69.1.	review relief is discretionary in nature, the ratepayers association has failed to institute the proceedings for review within a reasonable time and, in the exercise of its discretion this Court ought to decline to review the said transfer as a consequence of the delay;
69.2.	the transaction which underpins the transfer of erf 599 was concluded before the MFMA came into operation, the MFMA does not apply retroactively and, on a proper construction of section 14(2) it would accordingly not apply to the transfer in question;
69.3.	alternatively and in the event that section 14(2) is found to apply to the transfer of ownership in erf 599, the process followed by the municipality has resulted in effective compliance with the section

Delay

'Word beweer dat die aansoekdoener nie binne redelike tyd die saak by die Hof aanhangig gemaak het nie moet die Hof beslis (a) of the verrigtinge wel na verloop van n redelike tydperk eers ingestel is en (b) indien wel, of die onredelike vertraging oor die hoof gesien behoort te word. Weereens, soos dit my voorkom, met betrekking tot (b) oefen die Hof n regterlike diskresie uit met inagneming van al die relevante omstandighede.'

a local government may only act within the powers lawfully conferred upon it. There is nothing startling in this proposition - it is a fundamental principle of the rule of law, recognised widely, that the exercise of public power is only legitimate where lawful. The rule of law - to the extent at least that it expresses this principle of legality - is generally understood to be a fundamental principle of constitutional law.'

'(1) The period of-
(a)...
(b) ... 180 days referred to in sections 5 and 7 may be extended for a fixed period,
by agreement between the parties or, failing such agreement, by a court or tribunal on application by the person or administrator concerned. 
(2)   The court or tribunal may grant an application in terms of subsection (1) where the interests of justice so require.'
76.	As is evident from the aforegoing, the first enquiry is whether or not it can be said, on the facts of this case, that the ratepayers association delayed in the institution of these proceedings.
77.	The application herein was launched on 1 February 2008. In terms of section 7(1)(b) of PAJA, the ratepayers association would have to satisfy the Court that it had been informed, or had become aware, or might reasonably have been expected to have become aware of the administrative action complained of within the preceding period of 6 months, i.e. at some stage after 1 July 2007. If it is unable to do so, this Court may extend the 180 day period on application by the ratepayers, if it is in the interests of justice to do so.
78.	As appears from the historical background to the matter, there was substantial activity around the development of erf 599 during the period 1999, when the municipality first decided to embark upon such a course, to 24 February 2004 when the Deed of Sale was signed with the Arniston Bay Consortium. During that time Bird represented the conservation association. As such, he had been involved in the process surrounding the alienation of erf 599 and he was in fact the person who signed the conservation associations' objections. In October 2003, the municipality's attorneys, on its behalf, gave a written undertaking to Mallinicks, the attorneys acting for the conservation association, that it would not proceed to transfer erf 599 without first giving notice of its intention to do so.
79.	Bird subsequently became chairman and representative of the ratepayers association and Mallinicks also came to act as the attorneys for the ratepayers association. Indeed, when Mallinicks wrote the letter to the municipality in December 2007 warning of possible interdict proceedings, it was acting on behalf of both the ratepayers and the conservation association. Both Bird and Mallinicks would accordingly have been aware of the preceding events.
80.	It is clear on the papers that as far as the ratepayers were concerned, nothing much happened in relation to erf 599 after conclusion of the aforesaid Deed of Sale. The ratepayers association addressed letters to the municipality enquiring about the status of the sale of Erf 599 and developments in regard to the property on a more or less annual basis. Some of these letters appear to have been simply ignored and those that were responded to, did not offer much information.
81.	Bird has expressly stated that the ratepayers association knew that in terms of the Deed of Sale which had been entered into between the municipality and the Arniston Bay Consortium on 24 February 2004, the consortium would have to build before it could take transfer of the land. According to Bird, the ratepayers association did not know that the tripartite agreement had been concluded, nor did it have knowledge of the transfer of Erf 599 into the name of Verreweide in January 2007. Bird's evidence in this regard is uncontested. Bird has stated that it was only when construction commenced around November 2007 that the ratepayers association made further investigations and approached attorneys Mallinicks to assist. Mallinicks wrote the letter dated 4 December 2007 to the municipality and the latter's reply was received in January 2008. The municipality's reply, according to its letter, was accompanied by the documentation called for in Mallinicks' letter. Bird has stated that the information contained in the founding affidavit came to his knowledge when the municipality's aforesaid reply was received. The current proceedings were instituted shortly thereafter.

83.	Mr Rosenberg's argument loses sight of the fact that the municipality's attorneys had given a clear and unequivocal written undertaking on their client's behalf that transfer would not be effected without notice to the conservation association. Bird had knowledge of that undertaking and, through him, so did the ratepayers association. It appears to be common cause that no such notice was given.
84.	Mr Rosenberg also contended that the ratepayers association, had it been reasonably diligent, could and would have made regular enquiries to ascertain whether or not transfer of the property had been effected, but that it did not do so.
85.	A period of more than 3 years elapsed between the conclusion of the Deed of Sale on 24 April 2004 and the commencement of excavations on Erf 599 at around November 2007. At the time when the development of Erf 599 was on the forefront in Arniston, one would certainly expect that a reasonably diligent party who is genuinely concerned about the development, would make enquiries from the municipality to ascertain the current state of affairs. The same does not hold true once such an extended period of time has lapsed without any visible sign or outward manifestation that the development of the property would be proceeding. On the contrary, it would, in my view, be reasonable to assume that the development which had originally been envisaged had come to naught, especially in circumstances where enquiries which were made, were not even responded to. Neither the municipality nor Verreweide have alleged that they took any steps to keep the ratepayers association apprised of developments in regard to Erf 599.   Absent a response to the enquiries made with the municipality, it is not clear how the information about Verreweide's substitution for the original purchaser, the transfer of erf 599, or the lodging of revised building plans, would or could have reasonably come to the notice of the ratepayers association.
86.	Given the municipality's failure to respond to the ratepayers association's queries I am satisfied that the ratepayers could not reasonably have become aware, prior to the commencement of construction work, that the development of Erf 599 was set to continue. Inasmuch as the ratepayers association was under the impression that construction work had to be complete before transfer of ownership in the property could be effected, as was provided for in the Deed of Sale entered into in 2004, there was no cause for it to anticipate or to suspect that transfer would take place earlier. Once it was alerted to the fact that the proposed development was set to become a reality, it acted with despatch and brought its application within the time stipulated by section 7 of PAJA.
87.	In any event, it appears to me that this is a case where the interests of justice require that the parties be heard and that their dispute be determined by this Court. The case is undoubtedly an important one. From Verreweide's point of view, it has made a substantial financial investment in the venture. Seen from the municipality's perspective, it is responsible for managing the town of Waenhuiskrans/Arniston for the benefit of all of its residents. As such, it has an obligation to create employment- and development opportunities, as well as to protect the environment for the benefit of present and future generations as is envisaged in section 24 of the Constitution. The ratepayers association and the action group have a clear interest in preserving the beauty and unspoilt character of this unique coastal village which is one of the gems along the Cape South coast. A further factor which cannot, in my view, be overlooked, is the ostensible collusion between Jordaan and Verreweide/ Haarburger.

88.	Jordaan, in his capacity as the municipal manager, was a public official who was entrusted with a public duty. As such, he was obliged to act in good faith and to deal with matters that came before him without fear or favour. It appears from the historical background to the dispute which has been set out above that Jordaan, however, failed to act impartially and objectively. So, for example, no evidence has been placed on record to show that he was authorised by the Council to enter into the tripartite agreement in terms whereof Verreweide became the purchaser and developer of erf 599; he hastily convened a special meeting of the council on 29 February 2008 to 'extend' the rezoning of erf 599 once it came to his notice that the rezoning was alleged to have lapsed and he instructed officials of the municipality to backdate the approval of Verreweide's revised building plans, to mention but a few examples. In these circumstances justice, in my view, requires that the actions of the municipality be scrutinised by the Court in order to give effect to section 33 of the Constitution.

Section 14 of the MFMA
89.	As has been alluded to above, the MFMA came into operation on 1 July 2004. The ratepayers have alleged that the municipality had been obliged to comply with section 14 of the MFMA. This basis for this contention is that the tripartite agreement which was concluded on 6 October 2004 was a separate agreement, concluded after the MFMA came into operation. Alternatively, if the tripartite agreement was not a separate agreement, the contention is that the transfer of ownership in erf 599 occurred after the statute came into operation.

91.	The first issue which falls to be determined is accordingly whether or not the tripartite agreement was a separate agreement, or whether it was part and parcel of the original transaction.

93.	On behalf of Verreweide and the municipality, it was contended that it was clear that Swanepoel at all times intended to purchase the property on behalf of a nominee. The intention had been to change the name of Verreweide to Arniston Bay Consortium, but it was not possible to do so. The municipality's attorney, Mr P C Luttig ('Luttig'), was of the opinion that registration in favour of a purchaser as described in the Deed of Sale would be refused by the deeds office. The tripartite agreement was accordingly prepared so as to clarify the identity of the purchaser.

97.	The description of the purchaser in the Deed of Sale is, in my view, unambiguous. The contract clearly and expressly states that the purchaser is Arniston Bay Consortium. There is no reference in the agreement to the purchaser acting on behalf of a nominee, to Swanepoel being the purchaser on behalf of a nominee, or to Verreweide. Whatever Swanepoel's intention might have been when he made the development proposals, became irrelevant when the contract was concluded, particularly in view of clause 17 aforesaid.

99.	The plain meaning of the words used in the tripartite agreement is that the sale to the Arniston Bay Consortium was cancelled and that a fresh agreement was concluded with Verreweide, a different entity. There is nothing ambiguous about the wording of the relevant clauses, or about the contract as a whole. The original sale was cancelled and a fresh sale, albeit at the same price and substantially on the same terms, was concluded with Verreweide.

101.	The sale to Verreweide which was effected in terms of the tripartite agreement, is a separate and distinct contract that was concluded on 6 October 2004. In terms of that contract, erf 599 was sold to a different purchaser, who acquired rights in terms of the tripartite agreement and not from the Deed of Sale which had been concluded at an earlier date. The tripartite agreement was concluded after the MFMA came into operation, which means that the provisions of the MFMA were applicable to it. In view of this finding, it is not necessary to deal with the arguments advanced in regard to the retrospectivity or otherwise of section 14 of the MFMA.

102.	Both Verreweide and the municipality contended that the provisions contained in section 14 of the MFMA have, in any event, been complied with, inasmuch as the process which the municipality had followed, served to give effect to those requirements.

'14. 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 the 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-

a) has decided on reasonable grounds that the asset is not needed to provide the minimum level of basic municipal services; and
b) has considered the fair market value of the asset and the economic and community value to be received in exchange for the asset.

3. ...
4....
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.
(6).........

104.	It appeared to be common cause between the parties that erf 599 had not been needed to provide the minimum level of basic municipal services and that subsection 14(1) was accordingly not applicable.

105.	In terms of subsection 14(2), a municipality is constrained, before it may transfer a capital asset, to do at least three things: firstly, it must hold a meeting of its Council which is open to the public; secondly, at such meeting the Council must decide, on reasonable grounds, that the asset is not required to provide the minimum level of municipal services; and thirdly, at the said meeting, the Council must consider the fair market value of the asset, as well as the economic and community value which will be received in exchange for the asset. Section 14(5) imposes the additional requirement that the process which the municipality adopts in transferring a capital asset must be fair, equitable, transparent and competitive and consistent with the supply chain management policy referred to in section 111 of the MFMA ( Inasmuch as section 111 of the MFMA only came into operation 1 December 2004, the reference to the supply chain management policy would clearly not apply to the instant case).

106. Verreweide and the municipality contended that the requirements of section 14 of the MFMA had been complied with inasmuch as the municipality had followed an extended public process which culminated in the sale of the property. During the course of such process the municipality advertised its intention to develop the property on no less than 3 occasions. The only proposals received were those of the Arniston Bed & Breakfast & Coffee Shop, Smith Van Zyl & Kirby and Dream Fisheries. The best price that could be obtained was R426,000.00 (plus VAT), which is indicative of the fact that this was its market value. The municipality eventually decided to sell the land to Arniston Bay Consortium, advertised its intention to do so and considered the objections which were received. Verreweide was then substituted for the Arniston Bay Consortium so as to reflect the correct details of the purchaser.
107.	It must, of course, be borne in mind that the municipality had been obliged, in terms of section 124(2) of the Municipal Ordinance, No 20 of 1974, to advertise its intention to alienate erf 599 and to consider the objections, if any, that were lodged pursuant to such advertisement. On 25 April 2003 the municipality indeed published its intention to sell erf 599 to the Arniston Bay Consortium at a price of R426,000.00. No similar advertisement was published in respect of the sale to Verreweide. A period of approximately 18 months had passed from the time the aforesaid advertisement of the proposed sale to the Arniston Bay Consortium had been published, to the time when the municipality sold erf 599 to Verreweide in October 2004. Life, even in a small town in the rural areas, is not static. Circumstances change and market prices vary. Affected residents of Waenhuiskrans/Arniston had no opportunity to object against the proposed sale to Verreweide.

110.	In support of the contention that the objectives of section 14 had, in any event, been met in regard to the transfer of ownership in erf 599 to Verreweide, Mr Rosenberg relied on the process which culminated in the conclusion of the Deed of Sale with the Arniston Bay Consortium. He submitted that it was clear on the papers that erf 599 was not needed to provide the minimum level of basic services, inasmuch as no objections were made on that basis. He further submitted that the price of R426,000 clearly constituted the market value of the property at the time, because it was the only firm offer which had been made after three separate advertisements and that the Council had accordingly also fulfilled the requirements of section 14(2)(b) of the MFMA. Moreover, he submitted, the entire process around the sale to the Arniston Bay Consortium was conducted publicly, all of the objections had been properly considered and the provisions of section 14(5) had also been met. Indeed, so it was argued, the entire process around the alienation of erf 599 had run its public course and in that context it did not matter that Verreweide was not the same entity as the Arniston Bay Consortium.
111.	Given the finding that the tripartite agreement constituted a fresh and independent agreement for the sale of erf 599 to Verreweide, it would appear to me that Mr Rosenberg's argument is doomed to fail. However, even if Verreweide was merely a nominee who stepped into the shoes of the Arniston Bay Consortium, it appears to me that Mr Rosenberg's argument can still not succeed, inasmuch as the Council failed to consider the market value of the property.
112.	There is no outright allegation in the papers filed by the municipality that it ever considered the fair market value of erf 599. Had it done so, it would have been a simple matter to say that it did. The evidence, however, tends to establish the contrary.
113.	The only copies on record of the advertisements which the municipality placed when calling for development proposals, are those dated December 2002. There is, however, no evidence that the advertisements in 2001 and 2003 were differently worded. The English version of the advertisement read as follows:
'CAPE AGULHAS MUNICIPALITY

CALL FOR DEVELOPMENT PROPOSALS:
DEVELOPMENT OF ERF 599 WAENHUISKRANS/ ARNISTON

This prime property lends itself for development of the abovementioned, is centrally located and could serve as a focal point in Waenhuiskrans/Arniston.
Further details and documentation is (sic) available from Mr E Oosthuizen at telephone number (028) 425 1919 during office hours.

Sealed quotations marked "DEVELOPMENT PROPOSAL: ERF 599,
WAENHUISKRANS/ARNISTON" placed in the tender box, will be received by the Municipal Manager until 12:00 on Monday 6 January 2002 and will be opened after the closing hour.
Council reserves the right not to accept the lowest or any quotation. KJORDAAN
MUNICIPAL MANAGER
PO BOX 51

114.	As is evident from the advertisement, no reference whatsoever was made to the sale of the land, or to any sale price for the land. Indeed, the advertisement gave no indication that the property was to be sold. Rather, it tended to indicate that the municipality would remain the owner and that the successful tenderer would develop it at the municipality's cost - the advertisement expressly stated that the lowest quotation would not necessarily be accepted.

116.	Many of the objections which the municipality received in response to the advertisement of the proposed sale to Arniston Bay Consortium, were directed at the fact that the proposed sale would be effected at less than market value.

118.	The latter statement is, of course not strictly correct. As has been referred to above, Van Zyl et al offered a minimum of R500,000.00. Stevens attempts to get past this fact by stating that such price was not repeated in the second proposal put forward by this group, but his reasoning does not detract from the fact that there is no direct evidence that the municipality or its Council ever considered the market value of Erf 599.
119.	Jordaan, who was the municipal manager at the time when the decisions around the development and sale of erf 599 were taken, deposed to an affidavit in the proceedings on 4 March 2008. He obviously had first hand knowledge of the events at the time, but he has also not stated that the Council considered the market value of erf 599.

121.	Having regard to the aforegoing facts and circumstances, the argument that there was compliance with the provisions of section 14(2) cannot be sustained. It is clear that the municipality's decision to transfer of erf 599 to Verreweide fell foul of the provisions of section 14 of the MFMA and, as such, was invalid and falls to be set aside in terms of the provisions of section 7(2)(a)(i) of PAJA as being unauthorised.
122.	The further issue which arises as a consequence of the aforegoing findings is whether or not this Court should, despite the finding, decline to set aside the transfer of the property due to the lapse of time and the prejudice which Verreweide may suffer. A period of approximately 5 years has elapsed since the conclusion of the tripartite agreement and almost 3 years have elapsed since erf 599 was transferred to Verreweide in the deeds office.

123.	It is clear from what has been stated above that the ratepayers association is not to blame for the delay which occurred between the conclusion of the Deed of Sale in April 2004 and the eventual registration of transfer of ownership in erf 599 on 25 January 2007. In the absence of replies to their enquiries, the ratepayers had no means of knowing that transfer of the property was in the offing. Indeed, Luttig had given a written undertaking to the conservation association that notice would be given before transfer was effected. Enquiries made by the ratepayers association to the municipality were not responded to. Moreover, until such time as excavations on the property commenced during November 2007 there was no outward manifestation of the municipality's intention to pursue the development of erf 599. When excavations commenced, the ratepayers association acted expeditiously in pursuing its remedies. Indeed, the papers in this application were issued in February 2008.
124.	It was pointed out that Verreweide will undoubtedly be out of pocket if the transfer of the property is set aside. It will obviously be entitled to be reimbursed in respect of the purchase price of R426,000.00, but it has clearly expended monies in performing building work on the site. The shareholders of Verreweide, who paid R4,8 million for their shares on the understanding that Verreweide would be able to proceed with the proposed development, might also suffer financial prejudice.
125.	As regards the construction costs, Verreweide clearly commenced construction at a time when it knew that its revised plans had not been approved. Verreweide is accordingly the author of its own misfortune in this regard. The shareholders are not parties to the litigation in this court. They are, however, in a very similar situation. If they had acted reasonably and diligently, they would not have embarked upon the development in the absence of compliance with section 14 of the MFMA.
126.	There appears to be no reason why the entire process envisaged by section 14 cannot be started now, if the municipality is still of the view that erf 599 must be developed. Such construction work as has taken place, may obviously have to be demolished either in whole or in part, but it has not been suggested that it would be impossible or wholly impracticable to do so.

Jordaan's Appeal Decision
128.	As is apparent from the historical background set out above, Verreweide submitted an application to build on erf 599 in accordance with revised plans on 2 October 2007. Marthinus refused the application on 19 December 2007 and advised Haarburger and/or Verreweide accordingly. The reasons why the application was refused, were said to be (a) that the basement level failed to comply with the definition of a basement in terms of the zoning scheme regulations and (b) because the proposed building contravened the zoning conditions, as well as the tender conditions regarding the 4,5m building line on Dunkirk Street and the cemetery side.
129.	When Jordaan dealt with the appeal in terms of section 62 of the Systems Act, he approached the matter on the basis that erf 599 was zoned for business purposes in accordance with the decision of the Council which had been taken on 25 January 2000.
130.	The ratepayers association seeks to set aside Jordaan's decision on the basis (a) that his decision was underpinned by an error of law inasmuch as the business zoning of erf 599 had lapsed and (b) that the appeal ought to have been dealt with in terms of the Building Act and that the Systems Act was not applicable.

133.	The municipality is not opposing the relief sought by the ratepayers association in regard to Jordaan's appeal decision. The municipality also appears to have come to the conclusion that the rezoning which had been effected on 25 January 2000 had lapsed, inasmuch as it purported to extend the rezoning on 29 February 2008. Mr Binns-Ward, however, contended that the original rezoning had not in fact lapsed. The basis for such contention was that LUPO does not require physical use of the property and that the municipality had used erf 599 for business purposes inasmuch as they were engaged in disposing of it for business purposes. Mr Rosenberg, in similar fashion, contended that the municipality had used erf 599 for business purposes by calling for development proposals, by investigating the development of erf 599 and by conducting the procedure around its eventual alienation and development.

138.	It follows that the mere intention on the part of the owner to conduct a particular activity on any land, or to use it for any purpose, is incapable of constituting the use thereof for purposes of its zoning. It is only when an intention manifests in some outwardly visible manifestation on the property that one can determine what it is being used for.
139.	The municipality, in its papers, has not alleged that it used the property, in the sense that it conducted any activities on the property, for any purpose whatsoever during the period of two years immediately after the rezoning of erf 599 on 25 January 2000 nor were any improvements made during that time. Indeed no use was made of the property for any purpose whatsoever until such time as Verreweide started excavations in November 2007.

141.	Absent an extension of the rezoning in terms of section 16(2), the rezoning which had been effected in terms of resolution 14/2000 on 25 January 2000 will clearly have lapsed after 24 January 2002, i.e. well before the conclusion of the Deed of Sale in 2004. By the time plans were lodged for the construction of the business complex on Erf 599, the property was accordingly no longer zoned for business use, nor was it so zoned at the time when Jordaan dealt with the appeal lodged by Verreweide in February 2008.

149.	When regard is had to the meaning of 'lapse' as aforesaid, the words used in section 16(2) of LUPO would ordinarily mean that the rezoning would come to an end, or would terminate, after the expiry of a period two years, unless the period was extended.

152.	That is, however, not the end of the matter. One must also determine what meaning is to be given to the words 'at any stage' used in section 16(2). It appears to me that there are two possible interpretations in this regard. One construction is that the Legislature intended to provide that rezoning may be extended at any stage prior to the expiry of the period of two years. The other is that the words 'at any stage' qualify the lapsing provision so that the rezoning would only lapse provisionally or temporarily upon the expiry of the period of two years and could be revived by the subsequent extension thereof.
153.	Not all of the provisions of LUPO referred to above which provide for rights, rules, regulations or plans to lapse after the expiry of a certain period of time, envisage that such time(s) may be extended. So, for example, no provision is made to extend the period of time mentioned in section 4(8)(a) within which a structure plan needs to be reviewed; there is also no provision to extend the periods of time referred to in sections 14(4) or 14(5) after which use rights will lapse. In those instances it would accordingly appear that these periods may not be extended and once the time period in question has passed, the rights previously acquired are to be regarded as terminated or extinguished. Similarly, a structure plan which has not been reviewed will fall away and a new structure plan will have to be prepared in accordance with the provisions of section 4 of LUPO.

155.	The words 'at any stage' used in section 16(2) appear at first blush to have a wider import and it can be argued that if the Legislature intended the words to mean 'at any stage before expiry of the period of two years', it would have said so. The clause, however, falls to be construed in the context of the section and of the Ordinance as a whole, bearing in mind the purpose of the Ordinance and the objects that the Legislature wished to achieve.

158.	The purpose of the Ordinance, as it appears from the long title and the aforesaid provisions, clearly is to regulate and control the manner in which land is used so that the welfare of the community is safeguarded and so that development and use of the land occurs in an orderly fashion.
159.	The intention of provisions such as those contained in sections 14(4)(b), 15(5) and 16(3) appears to be clear - the zoning map and register must constitute a reliable and up to date record of the zoning and departures attached to the various properties which fall under the jurisdiction of a municipality. The zoning map and register appear to be important documents which require accuracy. Without a reliable and current record, the municipality will, for example, not be able to keep proper track of the zonings and departures granted and will, accordingly, not be able to properly control development in its area in accordance with its structure plan. In the absence of a reliable record, the municipality's own officials, for example those who have to approve building plans, will not know which criteria to apply and disputes may arise between the local authority and third parties as to the zoning of a particular property.

162.	Section 17 of LUPO contains extensive provisions detailing the public nature of the process which must be followed when rezoning is applied for. There is good reason for the process being conducted publicly - section 33 of the Constitution guarantees administrative action which is lawful, reasonable and procedurally fair. In terms of section 195 of the Constitution, public administration is required to be transparent and accountable and services must be provided impartially, fairly, equitably and without bias. Just as is the case with all other legislation, LUPO must be construed in a manner which is in harmony with the Constitution and not in a manner which has the result of circumventing, avoiding or negating it.
163.	When section 16(2) of LUPO is interpreted against the aforegoing background, it becomes clear that the words 'at any stage' must necessarily mean at any stage prior to the expiry of the period prescribed in the subsection.
164.	It follows that the Council acted outside of its powers when it purported to take the decision on 29 February 2008 to extend the rezoning of erf 599 and that such decision falls to be set aside in terms of section 6(2)(a)(i) of PAJA.

The Approval of the Building Plans on 29 February 2008/3 March 2008

166.	The approval of the aforesaid plans accordingly also falls to be reviewed and set aside.

Costs
168.	Three separate costs orders have to be considered: the costs of the application for the review, the costs of the interdict application which were ordered to stand over for determination in these proceedings and the costs of the intervention application by the action group.
169.	There appears to be no reason why the usual rule, that costs follow the result, should not apply in respect of both the review application and the interdict proceedings. It also appears to me that the matters raised in these applications were of sufficient importance and complexity to warrant the employment of two counsel.

The Intervention of the Action Group

171.	Mr Muller sought an order that the action group be awarded the costs of its intervention application on an unopposed basis, inclusive of the costs of two counsel.
172.	Mr Rosenberg opposed the order sought by Mr Muller and submitted that the intervention by the action group was premature, that it was not warranted by urgency, that it was a piece of chicanery and that its intervention was superfluous.
173.	The intervention of the action group has not been dealt with above and it is accordingly necessary to refer briefly to the facts and circumstances surrounding its joinder as these appear from the papers filed in that application.
174.	Louw J handed down his judgment in the interdict application on 22 April 2008. On 16 May 2008, Haarburger presented the ratepayers association with 91 application forms of prospective new members of the association. These application forms were presented under cover of letters which indicated that Haarburger had sought to convene a meeting of the ratepayers association on 31 May 2008 for purposes of passing a series of resolutions which included, inter alia: a resolution that the executive committee of the ratepayers association resign; that the proceedings which had been instituted in this Court be abandoned; and that Bird and another member of the ratepayers association personally pay the legal costs which Verreweide and the municipality had incurred.
175.	At the meeting on 31 May 2008 issues arose around the eligibility for membership of the prospective new members and the resolutions were not finally dealt with. As at November 2008 Haarburger had procured the presentation of 116 new membership applications of which 86 were acknowledged by the ratepayers association as being eligible for membership. Of those 86, some 46 applicants were in the employ of Haarburger or entities associated with him. The remaining 40 applicants were direct family of, or persons associated with, the 46 persons in the employ of Haarburger or entities associated with him.
176.	The annual general meeting of the ratepayers was scheduled to take place on 30 December 2008. The ratepayers association feared that Haarburger and the new members whom he had introduced would succeed in passing the proposed resolutions so that the review application and the interdict granted by Louw J would be abandoned. In these circumstances, the action group was formed on 6 December 2008 and it sought leave to intervene as an applicant in the matter so that it could apply for the same relief as that which had been applied for by the ratepayers association, if the latter abandoned the proceedings.
177.	Haarburger deposed to an answering affidavit in the application for joinder, but did not expressly deny any of the aforementioned facts.
178.	Against the aforegoing background, the allegation that the intervention of the action group was premature, unwarranted, or a piece of chicanery, appears to me to be wholly unwarranted. The joinder application was necessitated by the conduct of Haarburger who was clearly attempting to do away with the opposition to Verreweide's proposed development of erf 599, whether by fair means or foul. In such circumstances there appears to me to be no grounds to deprive the action group of a costs order in its favour.
179.	Last but by no means least, the Court is indebted to counsel for the detailed Heads of Argument which were filed and for the oral arguments which were presented over three days. The fact that all of the arguments which were advanced, have not been referred to, does not mean that these were not considered.

IT IS ACCORDINGLY ORDERED THAT:

1.	The second respondent's decision to transfer ownership of erf 599 Waenhuiskrans/Arniston to first respondent, inclusive of the written agreement entered into between the first and second respondents and the Arniston Bay Consortium on 6 October 2004, which decision was taken without the provisions of section 14 of the Municipal Finance Management Act, No 56 of 2003 having been complied with, is hereby reviewed and set aside.
2.	The Registrar of Deeds is hereby directed, empowered and authorised to cancel the Deed of Transfer and Deed of Title under number T4267/2007 dated 25 January 2007, in terms whereof the ownership in the aforesaid Erf 599 Waenhuiskrans/Arniston was transferred from second respondent to first respondent, in terms of the provisions of section 6(1) of the Deeds Registries Act, No 47 of 1937.
3.	The decisions taken by the second's respondent's municipal manager on 18 February 2008 in the appeal lodged by the first respondent against the rejection of its building plan application in respect of erf 599 aforesaid, are hereby reviewed and set aside.
4.	The second respondent's approval, on 29 February 2008 and/or 3 March 2008, of the building plans submitted by first respondent in respect of erf 599 aforesaid, pursuant to the decision by the second respondent's municipal manager as is referred to in paragraph 3 of this order, is hereby reviewed and set aside.

5.	The decision of second respondent taken on 29 February 2008 in terms of resolution 57/2008, to extend the re-zoning of erf 599 which had been effected in terms of Council resolution 14/2000, is hereby reviewed and set aside.
6.	First and second respondents shall jointly and severally pay the costs of the first applicant in the application for review, on the scale as between party and party, the one paying, the other to be absolved, such costs to include the costs attendant upon the employment of two counsel.
7.	First respondent shall pay the party and party costs of the first applicant in the application for interim relief, which costs stood over for determination in these proceedings in terms of the Order made by Louw J on 22 April 2009, such costs to include the costs attendant upon the employment of two counsel.
8.	First respondent shall pay the costs of the second applicant in its application for leave to intervene as an applicant in the proceedings, on the scale as between party and party in an unopposed matter, such costs to include the costs attendant upon the employment of two counsel.

A M DE SWARDT, A J 
19 November 2009