THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 311/2011
Reportable

In the matter between

RINALDO INVESTMENTS (PTY) LTD

Appellant

and

GIANT CONCERTS CC

First Respondent

THE MINISTER FOR LOCAL GOVERNMENT,
HOUSING AND TRADITIONAL AFFAIRS FOR
THE PROVINCE OF KWAZULU-NATAL

Second Respondent

ETHEKWINI MUNICIPALITY

Third Respondent

THE MINISTER OF PUBLIC WORKS

Fourth Respondent

THE MINISTER OF DEFENCE

Fifth Respondent

Neutral citation:
Rinaldo Investments (Pty) Ltd v Giant Concerts CC
(311/2011) [2012] ZASCA 34 (29 March 2012)

Coram:

MTHIYANE DP, CLOETE, CACHALIA, MALAN JJA and

PLASKET AJA

Heard:

27 February 2012

Delivered:

29 March 2012

Summary: Local Authorities Ordinance 25 of 1974 (KZN) – sale by
municipality of land by private bargain – standing of objector.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: KwaZulu-Natal High Court, Pietermaritzburg (Mnguni J sitting
as court of first instance)
1. The appeal is upheld with costs, including the costs of two counsel.
2. Paragraphs (a) to (d) of the order of the court below are set aside and
replaced with the following order:
‘(a) The application is dismissed.
(b) The applicant is directed to pay the third respondent’s costs, including the
costs of two counsel.’

JUDGMENT

PLASKET AJA (MTHIYANE DP, CLOETE, CACHALIA and MALAN JJA
concurring)
[1] This appeal concerns the validity of a contract of sale of land by private
bargain concluded by the third respondent, the eThekwini Municipality, and the
appellant, Rinaldo Investments (Pty) Ltd, with the consent of the second
respondent, the Minister (more correctly, the MEC) for Local Government,
Housing and Traditional Affairs for the Province of KwaZulu-Natal. The court
below, the KwaZulu-Natal High Court, Pietermaritzburg (Mnguni J) had set aside
the sale at the instance of the present first respondent, Giant Concerts CC. This
appeal is before us with the leave of this court, Mnguni J having refused leave to
appeal.

The facts
[2] The land with which this case is concerned is situated on the Durban
beachfront. It consists of land upon which the headquarters of the Natal
Command of the South African National Defence Force is situated as well as
adjoining land that is owned by the municipality. The land upon which the Natal
Command is situated makes up the bulk of the land in issue in this matter. It was
acquired by the municipality in 1855 but was transferred to the central
government in 1937 for military purposes, subject to a condition that if it was no

longer required for those purposes it would revert to the municipality. By 2003 a
decision had been taken to relocate the military to Salisbury Island with the
result that the property would revert to the municipality. (I shall, for the sake of
convenience, refer to all of the land in issue in this appeal as ‘the Natal
Command site’.)

[3] When it became known that the military was going to move from the
beachfront and that the land it occupied there would revert to the municipality,
Videovision Entertainment (Pty) Ltd, a film production company, proposed to the
municipality that it purchase the Natal Command site for the purpose of
establishing a modern film studio in Durban. Rinaldo Investments is the property
holding entity of Videovision Entertainment and both companies have the same
shareholders and directors. The dominant figure in both is Mr Anant Singh, a
film producer with an international reputation.

[4] The proposal struck a chord with the municipality because it had earlier
established a film office with a view to promoting Durban as a destination for the
production of what it termed professional and reputable films. This plan had, in
turn, been included into its Integrated Development Plan, which recognised the
potential of the film industry for economic development, and it had entered into a
partnership with the KwaZulu-Natal provincial government to promote the film
industry in Durban.

[5] The proposal was considered internally and approved in principle by the
municipality’s executive committee. Protracted negotiations followed and
eventually the terms of a contract of sale were agreed to. The executive
committee then took a decision to sell the land to Rinaldo Investments by private
treaty at a price of R15 million. As the land had been valued during the
negotiations at R71 million, if it was rezoned for its optimal use, the purchase
price was made subject to conditions. They were that the land had to be used
for the core activities of the development of a film studio and associated
infrastructure and if it was not, a ‘claw back’ provision provided that the
purchase price would increase in accordance with a prescribed formula. The
effect of this was that Rinaldo Investments was required, in return for a reduced

purchase price, to develop the land at its own expense in accordance with the
municipality’s vision.

[6] Because the proposed sale involved a deviation from the usual way in
which land owned by the municipality is sold, namely by public auction or public
tender, s 234(1) of the Local Authorities Ordinance 25 of 1974 (KZN) required
the proposed sale to be advertised prior to a final decision being taken. The
municipality advertised the sale, the parties signed the contract and it lay for
inspection as required by s 234(3) of the Ordinance.

[7] An objection to the proposed sale was received by the municipality from
Giant Concerts. It was signed by Mr K M Gayadin who, although not a member
of the close corporation, represented it throughout. The objection stated:
‘Kindly take notice that the abovenamed close corporation hereby places on record its
objection to the sale of the aforesaid property.
The close corporation furnishes inter alia its reasons for such objection, namely that it is
involved in the entertainment business and has an interest in the development of a
movie studio and other allied facilities on the site.
Further take notice that the close corporation’s offer to purchase the aforesaid
immovable property shall be greater than the present offer submitted to you, which offer
I am given to understand is R15 million.
We trust you find the above in order and invite you to contact the writer should you
require any further information.’

[8] Municipal officials met with Gayadin in order to allow him to explain and
expand upon the contents of the letter. In particular, he was asked to outline his
proposal for the development of the site but he refused to do so on the basis
that this was confidential. He was also unable to show that he had any
involvement in or knowledge of the film industry. Indeed, the letterhead of Giant
Concerts indicates that its area of operation, as its name suggests, involves the
organisation of large concerts – ‘Mind Blowing Live Concerts’ – and no mention
is made of the film industry. (Singh, with his extensive knowledge of the film
industry, both locally and internationally, stated in his affidavit that he had never
heard of Gayadin or Giant Concerts in film industry circles.)

[9] A little over a month later, the municipality approved the sale to Rinaldo
Investments. It was then referred to the MEC for approval in terms of s 235(1) of
the Ordinance. That approval was duly given on 22 February 2005. Giant
Concerts launched an application to review the decision a short while thereafter,
on 3 May 2005, but then matters slowed down: the application was heard four
years later, on 11 June 2009.

[10] In the court below it was contended on behalf of the municipality, the
MEC and Rinaldo Investments that Giant Concerts had no standing to challenge
the validity of the sale and that because Gayadin had been convicted of
offences involving dishonesty he was disqualified by s 47 of the Close
Corporations Act 69 of 1984 from taking part in the management of Giant
Concerts. Both of these points failed. On behalf of Giant Concerts, it was argued
that the decisions were invalid on a number of grounds that went to their
lawfulness, procedural fairness and reasonableness. All of these arguments
were upheld by the court below in a judgment that was delivered more than 15
months after the application was argued. This is clearly an unacceptably long
delay. The judgment set aside the decision of the municipality to sell the Natal
Command site to Rinaldo Investments by private bargain as well as the MEC’s
approval of the sale.

[11] In my view, a single issue is decisive of this appeal. That is the issue of
Giant Concert’s standing to review the decision of the municipality to sell the
Natal Command site to Rinaldo Investments, and the related decision of the
MEC to approve the sale. It is to that issue that I now turn.

Giant Concert’s standing
[12] When, as in this case, the fundamental right to just administrative action
is alleged to have been infringed, s 38 of the Constitution extends standing to
five classes of litigants.1 The section provides:
‘Anyone listed in this section has the right to approach a competent court, alleging that
a right in the Bill of Rights has been infringed or threatened, and the court may grant

1 Freedom Under Law v Acting Chairperson: Judicial Service Commission & others 2011 (3) SA
549 (SCA) paras 17-18; SLC Property Group (Pty) Ltd & another v Minister of Environmental
Affairs & Economic Development (Western Cape) & another [2008] 1 All SA 627 (C) para 19.
See too Cora Hoexter Administrative Law in South Africa 2 ed (2012) at 494.

appropriate relief, including a declaration of rights. The persons who may approach a
court are –
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their own
name;
(c)
anyone acting as a member of, or in the interest of, a group or class of
persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.’

[13] Giant Concerts does not claim to act in any capacity other than in its own
interest, in terms of s 38(a). Furthermore, as its registered address is 468 Loop
Street, Pietermaritzburg, it does not have ‘ratepayer’ standing in terms of the
common law (saved by s 39(3) of the Constitution)2 in respect of the eThekwini
Municipality in Durban.3

[14] How is the question as to whether a person has an interest in particular
litigation for purposes of s 38(a) to be determined? Even though s 38 has,
generally speaking, widened the scope of standing beyond the common law
rules that applied in the pre-1994 era,4 that does not mean that everyone who
alleges an infringement of a fundamental right has an unfettered right of access
to court. In the words of Sir William Wade and Christopher Forsyth,5 (albeit in a
different context) a successful challenge to administrative action is only
possible, as a starting point, if ‘the right remedy is sought by the right person in
the right proceedings’. (This statement was approved by this court in Oudekraal
Estates (Pty) Ltd v City of Cape Town & others.6) The ‘right person’ is one who
has what is regarded as a sufficient interest in the subject matter of the dispute.7

2 Section 39(3) provides: ‘The Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law, customary law or legislation, to the
extent that they are consistent with the Bill.’
3 Dalrymple & others v Colonial Treasurer 1910 TS 372 at 382; Jacobs & ‘n ander v Waks &
andere 1992 (1) SA 521 (A) at 536D-E; Lawrence Baxter Administrative Law (1984) at 658-659.
4 Ferreira v Levin NO & others; Vryenhoek & others v Powell NO & others 1996 (1) SA 984 (CC)
paras 165-166 (dealing with s 7(4) of the interim Constitution, the equivalent of s 38 of the final
Constitution); Kruger v President of the Republic of South Africa & others 2009 (1) SA 417 (CC)
para 23.
5 Sir William Wade and Christopher Forsyth Administrative Law 9 ed (2004) at 281.
6 Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA) para 28.
7 Baxter (note 3) at 644, 650-658; Hoexter (note 1) at 494-499.

[15] In Ferreira v Levin NO & others; Vryenhoek & others v Powell NO &
others8 O’Regan J held in relation to the interim Constitution’s equivalent of s 38
of the final Constitution:
‘Section 7(4) is a recognition too of the particular role played by the Courts in a
constitutional democracy. As the arm of government which is entrusted primarily with
the interpretation and enforcement of constitutional rights, it carries a particular
democratic responsibility to ensure that those rights are honoured in our society. This
role requires that access to the courts in constitutional matters should not be precluded
by rules of standing developed in a different constitutional environment in which a
different model of adjudication predominated. In particular, it is important that it is not
only those with vested interests who should be afforded standing in constitutional
challenges, where remedies may have a wide impact.
However, standing remains a factual question. In each case, applicants must
demonstrate that they have the necessary interest in an infringement or threatened
infringement of a right. The facts necessary to establish standing should appear from
the record before the Court . . .’

[16] The factual basis upon which a litigant claims standing is only part of the
picture. In order to place those facts in their proper context, it is also necessary
to consider the statutory scheme in issue, particularly its purpose. This is well
illustrated by Polikor Investments (Pty) Ltd v Chairman, Local Road
Transportation Board, Cape Town & others.9 In determining whether a business
competitor had a sufficient interest in the grant of private road transportation
permits to its rival, Grosskopf J, after considering the legislation, held:
‘In the present case I do not consider that the applicant had a sufficient interest to
entitle it to notice of the application for a private road transportation permit to convey
goods, or to a hearing before the Local Board when the application was considered.
This conclusion seems to me to follow from the procedural provisions of the Act, the
ambit of the enquiry which the Local Board had to conduct, and the nature of the
interest of the present applicant.’
In other words, a litigant’s interest must be assessed ‘against all the factual and
legal circumstances of the case’.10

8 Note 4 paras 230-231. See too Jacobs & ‘n ander v Waks & andere (note 3) at 534C-E.
9 Polikor Investments (Pty) Ltd v Chairman, Local Road Transportation Board, Cape Town &
others 1981 (4) SA 782 (C) at 789A-B. See too Rauties Transport (Edms) Bpk v Voorsitter,
Plaaslike Padvervoerraad, Johannesburg & ‘n ander 1983 (4) SA 146 (W) at 163C-E.
10 The Rt Hon the Lord Woolf, Jeffrey Jowell QC and Andrew Le Sueur De Smith’s Judicial
Review 6 ed (2007) para 2-025.

[17] I shall commence this enquiry by considering first the applicable
legislation and then the facts. Sections 233, 234 and 235 of the Ordinance
empower municipalities in the province of KwaZulu-Natal to alienate their
immovable property and regulate how such alienations are to take place. It is to
these sections that one must look in order to determine whether Giant Concerts
has an interest that is sufficient to clothe it with standing to challenge the
municipality’s decision to sell the Natal Command site to Rinaldo Investments.

[18] Section 233(2) sets out the various modes by which a municipality may
alienate or otherwise deal with its immovable property. These include sale by
public auction or public tender, the granting, selling or letting of immovable
property without reference to its actual value in defined circumstances, the
exchange of a piece of its immovable property for ‘other immovable property
within the borough’, the letting of its immovable property by public auction or
public tender on defined terms and the sale or letting by public auction or public
tender of ‘the trading rights in respect of any portion of the town lands of the
borough’.

[19] Section 233(8) allows for a deviation from the norm of selling or letting
immovable property by public auction or public tender. It provides:
‘Notwithstanding anything contained in subsection (2), the council may sell or lease any
immovable property by private bargain if the council is satisfied that the interests of the
borough will be better served than by a sale or lease by public auction or public tender,
or that other circumstances connected with the proposed transaction, justify such a
course.’

[20] A decision to sell or let immovable property in this way, or to grant it, is in
terms of s 233(12) valid for a period of either three or two years, depending on
the purpose of the alienation, ‘calculated from the date of such decision or,
where the approval of the Administrator in terms of section 235 is required, from
the date of such approval and no such grant, sale or letting shall be finalised
after the expiration of any such period unless the council, after compliance with
the provisions of section 234, so resolves’.

[21] Section 234(1) requires that prior to taking a final decision to alienate
immovable property in circumstances such as those in this case, a municipality

‘shall advertise its intention so to . . . sell . . . and, after consideration of the
objections, if any, lodged in accordance with the advertisement’ comply with the
provisions of s 235(1). The advertisement is required, in terms of s 234(2), to:
specify the period, which may not be less than 14 days, during which objections
may be lodged; include the lot number or similar description of the property;
state that the terms and conditions of the sale or other alienation shall be
available for inspection ‘during office hours at the town office’; and where the
proposed alienation is to be by way of private bargain, the name of the
purchaser and the price are to be disclosed. In terms of s 234(3), in every case,
a copy of the terms and conditions of the alienation, ‘in both official languages’,
must be kept ‘at the town office and be available for inspection by the public
during office hours’.

[22] Finally, s 235(1) provides that a municipality may not proceed with a
proposed alienation where objections have been received ‘without the prior
approval of the Administrator’. In terms of s 235(1A), an application for approval
must be accompanied by ‘certified copies of the relevant resolutions of the
council, a certificate by the town clerk that the relevant provisions of this
ordinance have been complied with and a certified copy of the proposed
conditions of grant, sale or letting’ and must ‘set forth any objections which may
have been lodged, together with the council’s comments thereon and a
statement of the market value of the property concerned . . .’.

[23] From this statutory scheme the following is clear: first, that alienating
municipal immovable property by means of public auction or public tender is the
usual mode of alienation; secondly, those modes of alienation, by their nature,
have inbuilt safeguards as to achieving a market-related price and for openness
and accountability on the part of the municipality; and thirdly, they may be
departed from but, where this is to occur, it is necessary to ensure that
openness and accountability on the part of the municipality is maintained and
that the interests that are to be served by the alienation of public immovable
property are not compromised.

[24] Sections 233, 234 and 235 put in place mechanisms to achieve these
safeguards. They do so by providing for the advertising of any proposed sale by

private bargain, by requiring the proposed contract to lie for inspection, by
allowing for objections and by requiring the approval of the Administrator – now
the Premier of the province – in order to ensure that the interests of objectors
are not disregarded.

[25] In order to answer the question as to who has standing to object, in terms
of s 234(1), it is necessary to determine the prior issue of whose interests the
provisions of ss 233, 234 and 235 are designed to protect. The answer, in my
view, lies in s 233(8). In order to sell its property by private bargain, a
municipality must be satisfied that ‘the interests of the borough will be better
served than by a sale . . . by public auction or public tender, or that other
circumstances connected with the proposed transaction justify such a course’.

[26] The advertising requirement envisages advertising, not for the world at
large, but for members of the local community, so that they are informed of
proposed action by their local government that may have a detrimental impact
on ‘the interests of the borough’ – and by necessary implication on their
interests. In other words, an advertisement in accordance with s 234(1) is not an
invitation to the world at large to object to a proposed sale of immovable
property.

[27] The case of Ninian & Lester (Pty) Ltd v Crouse NO & others11 was relied
on by counsel for Rinaldo Investments in support of an argument that even if
anyone may object, it does not follow that every objector has standing to
challenge an adverse decision. This decision is distinguishable. Unlike in this
case, a notice to objectors to the proposed registration, by the Registrar of
Labour Relations, of an amalgamated bargaining council was expressly aimed
at the ‘general public’12 and the statute expressly provided that a more limited
class of persons – ‘[a]ny person who is aggrieved by a decision of the registrar’
– had standing to appeal against the registrar’s decision to the Labour Court.13

[28] The case relied upon by counsel for Giant Concerts to establish that
anyone had the right to object and to challenge the municipality’s decision is

11 Ninian & Lester (Pty) Ltd v Crouse NO & others (2009) 30 ILJ 2889 (LAC).
12 Labour Relations Act 66 of 1995, s 29(3).
13 Labour Relations Act, s 111(3).

also distinguishable. Doctors for Life International v Speaker of the National
Assembly14 concerned the constitutional requirement of ‘public involvement’ in
the processes of the National Council of Provinces (the NCOP) and the
provincial legislatures (which mandate their delegations to the NCOP) in the
enactment of national legislation in terms of s 76 of the Constitution.15 The
constitutional requirements of ‘public involvement’ in the making of legislation,
as an aspect of participatory democracy, differ in scope from the notice and
comment
procedure,
as
part
of
the
operational
decision-making
of
municipalities, envisaged by s 234 of the Ordinance. Furthermore, being
concerned with national legislation, the ‘public involvement’ in Doctors for Life
International is understandably aimed much wider than the local application of
the Ordinance. Even so, the court observed that the purpose of the specific
provisions with which it was concerned was to give ‘the people in the provinces
the opportunity to participate in their respective legislative processes’.16 This
case simply illustrates, once more, the importance of context.

[29] It follows from what I have said above that those who have an interest in
the ‘interests of the borough’ constitute the class of persons who may object to a
sale by private bargain. (For present purposes I exclude from consideration
representative litigants such as organisations acting in the public interest or on
behalf of their members, as this case is concerned with a litigant claiming to
litigate in its own interest only.) I cannot imagine that a ratepayer in
Johannesburg or a businessman in Cape Town has any interest in whether the
eThekwini Municipality sells the Natal Command site by private bargain: they
have no connection to Durban, no relationship with the municipality and no
stake in the social and economic development of the city.

[30] Giant Concerts is in the same position as the hypothetical ratepayer from
Johannesburg or businessman from Cape Town. It is not a ratepayer in Durban
or a member of the local community, if an artificial person could be said to be a
member of a community, and it has no interest in the ‘interests of the borough’.
Furthermore, its objection was not aimed at the ‘interests of the borough’. It
accepted that the land should be sold by private bargain for the purposes

14 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
15 Constitution, ss 72 and 118.
16 Para 151.

proposed but to it, rather than to Rinaldo Investments. It has no interest in who
the municipality chooses to contract with, once it has decided to sell immovable
property by private bargain, because by definition one is not dealing with a
public tender.

[31] It is, by now, trite that legislation must be interpreted consistently with the
Constitution, wherever this is possible, in recognition of the supremacy of the
Constitution and in order to give effect to the Constitution and its values. The
Ordinance is no exception. The conclusions that I have reached, that the
Ordinance concerns itself with local interests and that only those with an interest
in the ‘interests of the borough’ have standing, are strengthened by s 152(1)(a)
of the Constitution which states that among the objects of local government is
the duty ‘to provide democratic and accountable government for local
communities’.

[32] Giant Concerts does not have a sufficient interest in the validity of the
sale of the Natal Command site by the municipality to Rinaldo Investments. It
accordingly lacks standing to challenge the validity of that sale. That is not to
say that if the sale is tainted by unlawfulness, procedural unfairness or
unreasonableness, the municipality is above the law and its wrong is
unreviewable. All that this judgment concludes is that Giant Concerts is not able
to mount such a challenge in terms of s 38(a) of the Constitution. It is not the
right person in the right proceedings.

Costs
[33] It was argued by counsel for Giant Concerts that if the appeal was to
succeed, it should not be ordered to pay the costs of Rinaldo Investments in
either the court below or in this court. Reliance was placed on the judgment of
the Constitutional Court in Biowatch Trust v Registrar, Genetic Resources &
others,17 to the effect that in litigation between ‘the government and a private
entity seeking to assert a constitutional right’, the general rule is that ‘if the
government loses, it should pay the costs of the other side, and if the
government wins, each party should bear its own costs’.18

17 Biowatch Trust v Registrar, Genetic Resources & others 2009 (6) SA 232 (CC).
18 Para 22.

[34] I cannot see the basis upon which the Biowatch principle can apply in this
case. First, Rinaldo Investments is a private entity. It is entitled to its costs in
both the court below and in this court. Secondly, even though Giant Concerts
relies on the fundamental right to just administrative action as the basis of its
challenge to the validity of the contract between Rinaldo Investments and the
municipality, it is in fact seeking to further its business interests, and the
vindication of fundamental rights is secondary to those interests. Thirdly, no
governmental bodies opposed the appeal and Giant Concerts has a costs order
in its favour against the municipality and the MEC in the court below. That has
not been appealed against and it consequently stands.

The order
[35] For the reasons set out above, the following order is made.
1. The appeal is upheld with costs, including the costs of two counsel.
2. Paragraphs (a) to (d) of the order of the court below are set aside and
replaced with the following order:
‘(a) The application is dismissed with costs.
(b) The applicant is directed to pay the costs of the third respondent, including
the costs of two counsel.’

______________________
C Plasket
Acting Judge of Appeal

APPELLANT:                                                      PJ Olsen SC and AA Gabriel SC
Instructed by:
JH Nicolson Stiller and Geshen, Durban
Honey Attorneys Inc, Bloemfontein

RESPONDENT:                                                         GJ Marcus SC and HS Gani
Instructed by:
Vather Attorneys, Pietermaritzburg
Lovius-Block, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
29 March 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

RINALDO INVESTMENTS (PTY) LTD v GIANT CONCERTS CC

The Supreme Court of Appeal (SCA) today held that Giant Concerts CC had no legal
standing to challenge the decision of the eThekwini Municipality to sell land by private
bargain to Rinaldo Investments (Pty) Ltd, and the related decision of the MEC for Local
Government, Housing and Traditional Affairs to approve the sale: as it was not a ratepayer
in Durban or a member of the local community, it had no interest in the validity of the sale.
The SCA upheld an appeal against an order of the KwaZulu-Natal High Court,
Pietermaritzburg reviewing and setting aside the decisions of the municipality and the
MEC.

The municipality had advertised its proposed sale of the land in terms of section 234(1) of
the Local Authorities Ordinance 25 of 1974 (KZN), the parties signed the contract and it
lay for inspection as required by section 234(3) of the Ordinance. In terms of section 234(1)
objections could be made to the sale of the land. Giant Concerts, which had its registered

address in Pietermaritzburg and was not a ratepayer in Durban, objected to the sale of the
land to Rinaldo Investments for the development of a movie studio and other allied
facilities. Despite the objection, the municipality approved the sale to Rinaldo Investments
and referred the sale to the MEC in terms of section 235(1) for approval. The MEC
approved the sale. Giant Concerts successfully applied to the high court to review and set
aside the decisions of the municipality and the MEC. Rinaldo then appealed to the SCA
against the order of the high court.

Before the SCA the issue was whether Giant Concerts had legal standing to challenge the
decision of the municipality, and the related decision of the MEC. The SCA stated that in
order to answer the question as to who has standing to object, in terms of section 234(1), it
was necessary to determine the prior issue of whose interests sections 233, 234 and 235 of
the Ordinance (which empower municipalities in the province of KwaZulu-Natal to alienate
their immovable property and regulate how such alienations are to take place) are designed
to protect. It then held, with reference to section 233(8) of the Ordinance, that those who
have an interest in ‘the interests of the borough’ constitute the class of persons who may
object to a sale by private bargain. Giant Concerts did not fall into this class. The SCA
stated that the advertisement in accordance with section 234(1) is not an invitation to the
world at large to object to a proposed sale of immovable property, but for members of the
local community, so that they are informed of proposed action by their local government
that may have a detrimental impact on the interests of the municipality – and by necessary
implication on their interests.  Consequently, it held that Giant Concerts lacked standing to
challenge the validity of the sale of the land by the municipality to Rinaldo Investments.
The SCA stressed that its finding did not mean that if the sale was tainted by unlawfulness,
procedural unfairness or unreasonableness, the municipality was above the law and its
wrong was unreviewable: its finding was simply that, in this case, Giant Concerts was not
the right party to challenge the decisions.