The municipality in Strata International (Pty) Ltd v Ekurhuleni Metropolitan Municipality passed a resolution to approve the alienation of municipal land that was going to be developed as a township. The resolution was not passed in the manner required by the Local Government Ordinance with prior public notice of the intention to pass it. The proposed developers accepted that the agreement they had was invalid but tried to rely on ‘public law rights’ enforceable independently of the agreement.

The resolution could emphatically not give rise to enforceable rights. The founding values of the Constitution include accountability, responsiveness and openness. Democratic and accountable government by local communities is essential and transparency must be fostered by providing the public with timely, accessible and accurate information regarding the activities of the council in public matters like this.

Failure to advertise the proposed alienation not only contravened the ordinance but also the Local Government: Municipal Finance Management Act 2003 which requires any transfer of ownership of a capital asset of a municipality to be fair, equitable, transparent, competitive and consistent with the supply chain management policy that the municipality must adopt. The resolutions were fatally flawed and incapable of giving rise to enforceable rights.

It is always a challenge dealing with municipalities because you have to ensure that all processes are followed if you want to get enforceable rights.