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n Stellenbosch Law Review - Appeal against a decision by a political office bearer as postulated by section 62 of the Local Government: Municipal Systems Act 32 of 2000 : City of Cape Town v Reader revisited

Volume 30 Number 3
  • ISSN : 1016-4359

Abstract

Section 62 of the Systems Act 32 of 2000 provides an effective tool for persons affected by a decision of a political office bearer. The court in Reader interpreted section 62(1) to mean that only the person(s) who are party to the application for approval from a political office bearer can appeal the decision that has been made. Whilst this finding is sound, it is not without any blemish. This is because of the paucity of reasoning proffered by the court. Thus, this article in part, suggests a rationale for this finding and for the most part, explored the implications of the Municipality of the City of Cape Town v Reader decision. It is my view that the court’s interpretation of section 62(1) failed to strike the balance between the rights of the aggrieved applicant and the so-called “third parties”. Section 62(1) permits “a person” who is affected by the decision of a political office bearer to appeal that decision. This must include all persons with a direct and substantial interest and not just the applicants for approval/permission from the political office bearer. Lastly, the court’s interpretation that section 62(3) “insulates” the decision of the political office bearer is incorrect. The correct approach is that of the separate judgment that held that section 62(3) does not protect the “decision” but rather, the “rights” that have “accrued” as a result of the impugned decision. Ultimately, it is my recommendation that section 62(3) must be amended to state that no rights accrue to an approval decision that is the subject of an appeal. This approach would avoid the perpetuation of an illegality in instances whereby a political office bearer has either colluded with an applicant or made a patently wrong decision to accumulate rights for the applicant. Ultimately, this article suggests that the correct approach to section 62 is that of O’Regan J in the Walele v The City of Cape Town case.

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/content/journal/10520/EJC-1b0fe0a635
2019-12-01
2020-09-30

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