Kwa Sani Municipality v Underberg/Himeville Community Watch Association (180/2014) [2015] ZASCA 24 (20 March 2015) per Gorven AJA
SCA summary: Application to declare agreement invalid ─ Municipality alleging non-compliance with legislation and consequent invalidity ─ invalidity not made out ─ agreement endured for some four years before declaration sought ─ unexplained delay in approaching court ─ not necessary to deal with delay in light of finding of validity.
[34] In summary, the following is the position. If a public body believes one of its administrative acts is invalid, it may not simply ignore it. This is because even invalid administrative acts are treated as valid until they are set aside. The public body contending for invalidity is thus duty bound to approach the court to have it set aside. Since it is administrative action which must be set aside, the delay rule applies. If there has been an undue delay, it must provide an acceptable and adequate explanation. If this is not done, the invalid administrative act may be insulated against being set aside. In such a case, the administrative act will continue to have effect and be treated as valid, despite its invalidity. If the public body has not delayed unduly and shows that the act is invalid, a court is bound to make a declaration of invalidity. There is no discretion afforded a court not to do so. If a declaration of invalidity is made, a court is then granted a discretion under its just and equitable powers to suspend the invalidity for any period and on any conditions. In the present matter, the municipality did not even surmount the first hurdle of showing invalidity.
Heard: 25 February 2015 Delivered: 20 March 2015
Gorven AJA (Mpati P, Lewis, Willis and Mbha JJA concurring): [footnotes omitted]
[1] Kwa Sani Municipality (the municipality) approached the KwaZulu-Natal High Court, Pietermaritzburg for an order declaring invalid and setting aside an agreement. The agreement was for the provision of disaster management services to the municipality by the first respondent (the association). It also sought consequential relief. The municipality contended that the agreement was invalid for want of compliance with s 217 of the Constitution, the provisions of the Local Government: Municipal Finance Management Act (the MFMA) and the regulations promulgated under that Act. This was disputed by the association. It denied any invalidity. It also raised an unexplained and undue delay on the part of the municipality in approaching the court for such relief.
[2] The court below (Koen J) dealt primarily with two issues. The first issue was whether the agreement was invalid for want of compliance with s 217 of the Constitution. The court held that, on the evidence, it was ‘. . . by no means persuaded that the process adopted was necessarily not in compliance with the Constitutional injunction’. The second issue was whether the delay of the municipality in challenging the agreement non-suited it. The court below also found for the respondent on that issue. The application was dismissed with costs and leave to appeal was refused with costs. The appeal is with the leave of this court.