CASE
NO. (P) A 245/2006

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
COUNCIL OF THE MUNICIPALITY

OF
SWAKOPMUND APPLICANT

and

VANTRIMAR
PROPERTIES CC RESPONDENT

CORAM: FRANK,
A.J.

Heard
on: 2007.11.19

Delivered
on: 2007.11.28

_______________________________________________________________

JUDGMENT

FRANK,
A.J.: [1] Applicant
seeks an order in the following terms against respondent.

1. Applicant
is authorized to remove and pull down the new structure erected by
respondent on the existing building situated on Erf 228C to the
extent indicated in annexures “H42” and “H43”
to applicant’s founding affidavit and to alter the structure in
order to restore the building to its previous state;

2. Applicant
is authorized to recover the costs incurred to execute the works
contemplated in prayer 1 from respondent;

3. Respondent
is ordered to pay the costs of suit;

4. Further
and/or alternative relief.”

[2] In
terms of the Town Planning Scheme of Swakopmund, Amendment Scheme 12
of 2002 (The Scheme) no building may be erected in the business zone
unless Council permits it taking cognisance of whether or not it will
form on “integral part of a comprehensive and co-ordinated
development of the business zone.”¹
Further a person intending to erect building must, in addition to
plans, supply certain further information to Council if so requested
which may include a plan indicating the “external appearance of
the proposed building.”²
Council have 60 days from submission to either approve or not
approve such intended building operations.³
To commence with the erection of such building works prior to the
aforesaid approval is prohibited.⁴
Where a refusal to approve such building works are subject to an
appeal it is prohibited to commence with such building works.⁵

[3] It
is common cause that the work done by respondent which forms the
subject matter of this application constituted work for which
approval was needed and that the building is situate in the business
zone of Swakopmund.

[4] It
needs to be stated that in terms of the Scheme where one intends to
do work on buildings one must “submit drawings to the Council
which sufficiently indicate the external appearance of the proposed
building”⁶
and that the wilful contravention of the provisions of the Scheme
constitutes a criminal offence pursuant to section 48 of the Town
Planning Ordinance (The Ordinance)⁷

[5] It
is also common cause that respondent commenced and completed it’s
building works without ever obtaining the necessary approval from
Council and that at time of the hearing of this application still did
not have the necessary approval in place. At the hearing of the
application certain appeals flowing from decisions by applicant in
connection with the building operations had been launched with the
Minister of Regional and Local Government and Housing.

[6] Respondent,
through an architect, submitted plans for approval in the beginning
of December 2005. These plans were returned to the architect during
January 2006 without being approved. Although there is a dispute as
to what exactly the architect was informed when the plans were
returned it is clear that by the end of January 2006 beginning
February 2006 the issue of approval in terms of the National Heritage
Act, No. 27 of 2004 had been raised. Thus in a letter dated 15
February 2006 under the heading “Municipal Approval” the
architect writes that she has taken the matter up and would submit
the approval to applicant. It later turned out that the building was
not listed and the “heritage consent” was not needed. In
the meantime the building operations had started and were continuing
despite the differences between the parties as to what was required
of respondent in respect of their building operations. On
respondent’s version it continued with the work as a town
planning officer had given them the go ahead. This officer avers
that he indicated that the work could continue as long as it was
renovations that were being done as this would not cause any changes
to the exterior appearance of the building. Anyway the work
continued and on 10 May 2006 the respondent was orally informed to
cease building operations. Respondent admits this but as the oral
communication according to it had “no legal pedigree “and
the works had progressed to such a stage of completion that only
“minor matters” still had to be attended to it continued
with it’s building operations. In addition to the oral
communication the applicant also in writing informed respondent per
letter delivered on 11 May 2006 (incorrectly dated 29 November 2005)
that it was acting illegally with reference to the provisions of the
scheme and the Ordinance and the “National Building
Regulations” and required respondent to submit “as built”
plans together with the consent of the neighbour or face further
steps.

[7] The
respondent through the legal practitioners D F Malherbe and Partners
per Mr van der Merwe responded to the above letter. I interpose here
to mention all but one of the partners of the said firm are members
of respondent and that Mr van der Merwe is the person who deposed to
the answering affidavit of respondent. In the letter Mr van der
Merwe denies that respondent is acting contrary to the scheme as it
was only executing renovations and that what respondent was doing “in
no way whatsoever, constitute the erection of a new building and
therefore no approved plans are necessary for the renovations”
Had Mr van der Merwe taken the time to look at the relevant
definitions especially the one of “erection” contained in
the scheme he would have known that what the respondent was doing did
fall within this definition and required approved plans. In view of
the history of the dispute and him being a lawyer I would have
expected him to have done this. Indeed this aspect is so
self-evident from the reading of the scheme that it was common cause
at the hearing of this application that approval for the plans had to
be obtained.

[8] Subsequent
to the aforegoing exchange of letters certain further developments
took place, none of which however led to the resolution of the
dispute between the parties or caused the construction work to be
terminated. Per letter dated 9 June 2006 the lawyers for applicant
informed respondent that it was acting illegally in that it was
building without an approved plan (including wrongly indicating that
it also needed heritage consent) and that in terms of the National
Heritage Act it was informed to cease all building activities (this
was incorrect as the building was not listed). More importantly the
letter also served as a notice in terms of section 28(4) of the
Ordinance informing respondent that applicant “intends”
exercising it’s powers in terms of section 28(2)(b) upon the
expiring of the period of 1 month as envisaged in section 28(4)”.
(I deal with section 28 of the Ordinance below). In response to
this letter the respondent averred that the building works had been
authorised by the Town Planning Officer and that the building was not
listed and hence “heritage consent” was not a
prerequisite and that for unspecified reasons the section 28 notice
was invalid. Proposals were also made by respondent so as to resolve
the matter. It is also of relevance to indicate that according to
respondent “no construction work has taken place subsequent to
the 9^th
of June 2006 and that our clients have merely proceeded with the
finishings, the nature and extent of which do not fall within the
scope of your ……authority or concern”.

[9] Be
that as it may on 27 July 2006 applicant resolved as follows:

(a) that
a relaxation sought by respondent in respect of parking requirement
in respect of the building not be approved.

(b) That
the changes to the external appearance of the building were
conditionally approved. The conditions were that applicant had to
comply with the scheme, that the parking requirements be complied
with and that the requirements of the building regulations be
complied with and that applicant to submit new building plans once
the conditions had been met.

(c) That
the illegal building operations could not be condoned and that the
building had to be restored to the condition it was prior to the
commencement of the building operations and if this was not done to
approach this Court for the necessary relief.

[10] Respondent
has lodged appeals to the Minister of Regional, Local Government and
Housing against all three the above decisions as well as against an
earlier refusal by applicant to approve the plans at a meeting of
June 2006 and the failure to deal with a parking relaxation
application submitted during March 2006.

[11] Counsel
for respondent raised three issues in
limine
in respect of the relief sought. These were that the relief sought
was vague and uncertain, that as appeals had been lodged with the
Minister the Courts jurisdiction in respect of the matter has been
ousted or deferred, and that as no notice of the intended restoring
of the building to it’s original appearance had been given to
occupiers thereof the relief sought was incompetent in law. I now
turn to deal with these aspects.

[12] The
relief sought is set out at the outset of this judgment. What
respondent complains of is the fact that a removal of the newly built
roof structure is sought (per annexures H42 and H43 to the founding
affidavit) “and” whatever other alterations that may be
necessary to restore the building to it’s previous state.
Applicant in it’s replying affidavit and through it’s
counsel at the haring indicated that it only seeks the order in
respect of the roof structure and nothing more. Respondent, not
surprisingly in view of the wording of the order sought, dealt with
the issue as if more than the roof structure was included as it is
common cause that work was done on other areas of the building as
well, especially at ground floor level. To the extent that it dealt
with more than was necessary it may have been prejudiced in the sense
that it may have occurred costs and spent time that it would not
otherwise have done. It is not suggested that it would have a
different defence or that it would have dealt with the matter
differently had it known that the relief that would be sought was
more limited than indicated. It was not prejudiced at all in the
sense that because of the way the relief was formed it did not raise
a defence it otherwise would have raised or because of the
uncertainty in the relief sought it was not clear what the issue(s)
was (were) that it had to address. The relief sought was clear and
this is not a case where the respondent did not know what issues to
address and hence disadvantaged. It is thus unlike the position in
the Weber-Stephen Products case referred to by counsel for
respondent.⁸

[13] The
relief sought was neither vague nor uncertain and respondent
addressed the issues raised flowing from such relief. The fact that
it thereafter transpired that more limited relief was sought did not
prejudice respondent at all in it’s case save for costs and
time and in fact favours applicant in that, if granted, it will not
be as extensive, expensive and invasive as the original relief
sought. This point in
limine
is thus dismissed.

[14] Section
28 of the Ordinance reads as follows:

“28(1) Upon
the coming into operation of an approved scheme the responsible
authority shall observe and enforce the observance of all the
provisions of the scheme.

(2) Subject
to the provisions of this Ordinance, the responsible authority may at
any time -

(b) remove,
pull down or alter so as to bring into conformity with the provisions
of the scheme, any building or other structural work erected or
carried out in contravention of any provision of the scheme; or

(f) generally
do anything necessary to give effect to the scheme.

(3) Before
taking any action under sub-section (2) the responsible authority
shall serve a notice on the owner and on the occupier of the building
or land in respect of which the action is proposed to be taken and on
any other person who, in its opinion, may be affected thereby,
specifying the nature of, and the grounds upon which it proposes to
take that action.

(4) Where
a building or work which the responsible authority proposes to
remove, pull down or alter under this section was in existence, or
where a building or land use of which it proposes to prohibit was
being put to use for the same purpose, before the scheme came into
operation, the responsible authority shall serve the notices referred
to in subsection (3) not less than six months before it takes any
action and, in any other case, one month before it takes any action.”

[15] The
main argument by counsel for respondent was that notice was not given
to the occupier of the premises. It was common cause that notice was
not given to the occupiers of the property. It is further common
cause that were two occupiers of the premises. Counsel for applicant
stated that it was not aware of the occupiers. This is disputed by
respondent. Even if applicant was not aware in the sense that they
were not informed they had a duty to establish this. Occupation is a
physical action and it was up to applicant to establish whether there
were persons occupying the building. It is clear in my view that no
action in terms of sec. 28(2)(b) can be taken until notice in this
regard has been given as stipulated, i.e. to both owner and occupier.
I mention in passing that it was common cause that the relevant
notice period for the building in question would be one month
pursuant to the provisions of sec. 28(a).

[16] The
above conclusion puts an end to the relief as it was claimed.
Counsel for applicant submits however than insofar as respondent
disputed applicant’s entitlement to act under sec. 28 I should
consider the matter from this aspect and issue a declarator to the
effect that applicant is entitled to act pursuant to the provisions
of the section in this matter provided the requisite notice is also
given to the occupiers prior to the work in terms of sec. 28(2)(b)
commencing. Applicant would have been entitled to act in terms of
section 28 without the Court order provided the necessary facts
allowed them to do so and an order was sought not so much as to seek
the powers in the order but to ascertain their right to exercise
those powers under the current circumstances. As already mentioned
this right is disputed by the respondent. The applicant is a public
body and the powers it seeks to exercise will interfere extensively
with the interests and right of enjoyment to the property concerned
of both the owner thereof and potentially also with those of the
occupiers and in such circumstances I am of the view that one should
not penalise the applicant for seeking clarity as to it’s
rights prior to exercise it’s powers.⁹
In the result I shall deal with the matter on this basis as
requested by counsel for applicant.

[17] The
alleged insufficiency of the notice with regard to whether applicant
would “remove” or “pull down” or “alter”
the building are in my view without merit. It is clear that the roof
structure referred to in the annexures are to be removed and that the
original roof structure must be re-instated. Respondent was informed
that applicant intended to act per sec 28(2)(b) which means that it
would “remove, pull down or alter so as to bring in conformity
with the provisions of the scheme…” For respondent who
was represented by a lawyer and who was not adverse to taking points
that were clever by more than half to state that the notice was not
clear to it is simply incredulous. The intended work by necessary
implication encompasses all three the elements referred to and any
literate person will comprehend this. The notice was sufficient and
a valid notice to the owner in terms of section 28 insofar as this
section was validly invoked (This issue I deal with below)

[18] The
Scheme makes provision for appeals to the Minister in the following
terms:

“8.7.1 Any
person who is aggrieved by the decision of Council in terms of an
application made under this Scheme, may appeal to the competent
authority.

8.7.2 If
the decision is one which the Council is required to give upon
application of any person or upon the submission by any person of
plans or proposals, an appeal shall in addition lie against a refusal
of the Council to give, or unreasonably delay on its part in giving a
decision, as if it were an appeal against a decision of Council.”

[19] To
determine whether the appeal provided for in clause 8.7.2 of the
Scheme and quoted above is ultra
vires
it’s enabling statute (the Ordinance) as contended for by
counsel for applicant it is necessary to refer to two sections of the
Ordinance, namely sec’s 18 and 19 thereof. Counsel for
applicant relied on the former as the premise for her submissions
whereas counsel for respondent relied on the latter as the premise
for his submissions.

[20] Section
18 reads as follows. I refer only to the relevant portion relied
upon by counsel for the respondent.

“18(1) Every
scheme shall define the area to which it applies and specify in
accordance with the provisions of the next succeeding subsection, the
authority or authorities who are to be responsible for enforcing and
carrying into effect the provisions of the scheme and –

(a) shall
contain such provisions as are necessary or expedient for prohibiting
or regulating the development of land in the area to which the scheme
applies and generally for carrying out any of the objects for which
the scheme is made,
and in particularly for dealing with any of the matters mentioned in
the Second Schedule to this Ordinance and; (emphasis that of counsel
for respondent)

(b) ………”

[21] Section
19 reads as follows:

“The
provisions to be inserted in a Scheme with respect to buildings and
building operations may include provisions –

1. 
   prescribing
   the space about buildings;

   
   

2. 
   limiting
   the number of buildings;

   
   

3. 
   regulating
   or enabling the Local Authority to regulate the size, height, design
   and external appearance of buildings;

   
   

4. 
   imposing
   restrictions upon the manner in which buildings may be used
   including, in the case of dwelling houses, the letting thereof in
   separate tenements; and

   
   

5. 
   prohibiting
   building operations or regulating such operations in respect of
   matters others than those specified in this sub-section:

   
   

Provided
that, where a Scheme contains a provision enabling
the responsible authority to regulate the design or external
appearance of buildings, the Scheme must also provide that any person
aggrieved by any decision of the responsible authority under such
provision shall have a right of appeal to the Minister against such
decision
and the grounds of such an appeal may include the ground that
compliance with the decision would involve an increase in the cost of
the building which would be unreasonable having regard to the
character of the locality and the neighbouring buildings.”
(emphasis that of counsel for applicant)

[22] It
is clear from section 19 that the appeals mentioned in that section
only relates to matters of “design or external appearances of
buildings”. This follows from the ordinary and plain
grammatical meaning of the words used in this section. Not
surprisingly counsel for respondent thus did not attempt to support
his submissions that a wider appeal was sanctioned in the Scheme by
reference to this section. His submissions was that such wider
appeal was sanctioned by section 18 insofar as that section in
subsection (a) thereof authorises to be included in the Scheme
“provisions that are necessary or expedient” in relation
to the scheme and “generally for carrying out any of the
objects” for what the scheme was designed.

[23] I
do not agree that the right of appeal can be read into or implied in
section 18. The appeal procedure are not necessary or expedient in
relation to the development of land or in the carrying out of any of
the objects of the scheme. An appeal would only make the decision
making process more lengthy but will not detract from the fact that
decisions must be made in the furtherance of the objects (or one of
them) of the scheme. It furthermore cannot in itself be said to be
necessary or expedient in regulating the development of land. The
second schedule referred to in section 18 states what Schemes must
deal with and there is nothing in the quite extensive list which
suggest appeals to the Minister is to be included nor does it flow
naturally from the matters itemised in the schedule or is it
essential, necessary or even expedient to provide for appeals in
respect thereto and these matters will be included and implemented
with the scheme. In contrast section 19 specifically and expressly
deals with appeals and limit these appeals to certain matters. It
also deals specifically with what the scheme may contain in respect
of “building and building operations” and the express
provision with regard to appeals thus also relate to this. As is
evident from the two sections section 18 is to establish the contents
of the Scheme and the authorities responsible for enforcing and
executing the scheme whereas section 19 is to deal with building and
building operations and it is clear in this latter regard it was
intended that a limit right of appeal would exist. There is no
question in my mind that a Scheme can be effectively implemented
without the general power of appeal contended for and hence such
power is thus also not ancillary to the regulation of land
development envisaged in section 18¹⁰.
In short the Ordinance does not contemplate the wide appeal
mentioned in the Scheme and the reference in the scheme must be
interpreted to mean a reference to appeals from decisions concerning
“the design or external appearance of building”. In this
regard an appeal would then also lie where there is an undue delay or
refusal to give a decision in such a matter.

[24] In
the result it is not necessary to declare the appeal provisions in
the scheme by ultra
vires
it’s enabling legislation. (the Ordinance) Properly
interpreted appeals are limited to those decisions dealing with
applications pertaining to “the design or external appearance
of buildings”. A decision that is appealable in terms of the
Scheme is only a decision relating to design or external appearance
of buildings.

[25] In
view of the conclusion reached as to the limited ambit of what
decisions can be taken on appeal there is only one valid appeal
pending and that relates to a conditional approval of the changes to
the external appearance of the building. This appeal even if
successful cannot release respondent of it’s obligation to have
had approved building plans prior to the commencement of the building
operations which is the crux of this application. Counsel for
respondent’s attempt to bring all the appeals under the ambit
of decisions relating to the external appearance of the building
cannot in my view be entertained. Those issues and decisions were
clearly not based on this aspect and the fact that the general plans
or drawings contained the external appearance of the building is
neither her nor there as this was not the issue that had to be
decided.

[26] Even
if I am wrong in my conclusion that there is only one valid appeal
pending I still do not agree that the pending appeals in any manner
detract from the jurisdiction of this Court to hear this application.
The fact that the appeals (or any of them) may eventually be
successful and thus grant the applicant some relief which is contrary
to the relief that is sought in this application, eg. to allow
respondent to lodge “as built” plans for approval, must
of course be considered by the Court in the exercise of it’s
discretion when it decides on what relief to grant. It is in my view
not a bar to the Court’s jurisdiction nor is such jurisdiction
deferred pending such appeal. This is so because there is simply no
order that is stayed pending the appeals. Building without plans is
illegal and this illegality remains. Even if “as built”
plans are eventually accepted respondent’s conduct remains
illegal and it is only one of the consequences of the illegality
(removal of the structure) that are legitimised. At the moment
however there is no order in favour or against respondent that can be
suspended pending the appeal. Respondent’s conduct is unlawful
and the Court can deal with it. What the appropriate sanction must
be may be influenced by the prospects on appeal and in this context
the appeal must be taken cognisance of.

[27] As
is apparent from what is stated above the points in
limine
raised on behalf of respondent insofar as it had merit was not of
such a nature so as to disentitle applicant to relief albeit in a
different form from that sought in the Notice of Motion. These
points in
limine
are thus dismissed to the extent indicated in this judgment above.

[28] In
inviting respondent to make representations to applicant the Chief
Executive Officer informed respondent that the Council meeting would
be held in camera as the documentation involved were of a non-public
matter. In this regard reference is made to section 14(2)(a)(iii) of
the Local Authorities Act, No. 23 of 1992. From the minutes of the
meeting attached to the founding affidavit it is clear that this is
what happened. The minutes refer to an “Ordinary Council
Meeting (In Camera)”. Counsel for respondent submits that the
fact that the meeting was in camera has the effect that the entire
decision-making at this meeting was a nullity.

[29] In
terms of section 14(2)(a) of the Local Authorities Act, No. 23 of
1992 the general rule, which can be negated from by a two-thirds
majority is that all meetings of a local authority “shall be
open to the public”. This section 14 also creates three
further exceptions to the general rule of which the only one relevant
to the present enquiry is that where the institution of legal
proceedings are to be discussed and decided a council may meet in
camera. This exception is contained in section 14(2)(a)(iii)
referred to by the Chief Executive Officer in his letter inviting
respondent to make representations to the applicant. From the
minutes of the meeting it is apparent that there was no resolution to
hold the meeting in camera which as indicated above would have
required the assent of at least two thirds of the members present.
It is also further apparent from the minutes that various other
matters not related to legal proceedings were discussed and decided
upon eg. alienation of property to staff members, cancellation of
sale and the position of a taxi rank. As far as respondent was
concerned the approval for the changes to the external appearance as
well as the relaxation of parking requirements were considered. In
addition to all this respondent’s “Illegal building
Activities” were considered culminating in the decision to seek
the present relief claimed. Council for respondent submits the mere
fact that one of the decisions involved the institution of legal
proceedings cannot justify the in camera meeting and as pointed out
above submits this the entire decision making at this meeting was
ultra
vires
and a nullity. [30] In my view it is correct that all the decisions
not relating to matters specified in section 14(2) was a taken ultra
vires
and amounted to nullities.¹¹
I do not agree however that in respect of those decisions for which
in camera meetings are expressly provided for it was nullity. On the
contrary as the meeting was in camera those were the only matters it
could legally consider. One of the matters was whether to institute
legal proceedings against respondent in view of the fact that it did
not act pursuant to the notice in terms of section 28 of the
Ordinance forwarded to it by applicant’s lawyers. I cannot
agree that because some of the matters that was decided upon could
not be dealt with at an in camera meeting this means everything
decided at the meeting was tainted. The decisions were not
interlinked and nor is it alleged the meeting itself was invalidly
called. This being so the meeting could validly deal with matters
that fell within what section 14 of the Local Authorities Act
stipulates to be matters that can be dealt with in camera. The
decision to institute the present proceedings was thus validly taken.

[31] Counsel
for respondent submits that the principle of audi
alterem
should have been adhered to prior to the notice to restore the
building to it’s original state. I have no hesitation to find
that the principle of audi
alterem
had to be adhered to given the drastic consequences of a decision
such as the present. The only question that I had was whether the
notice period provided for in section 28 (4) did not provide for audi
after the decision had been taken. In conjunction with this the
effect of the audi
prior to instituting these proceedings and the effect of respondent’s
undoubted audi
in these proceedings was matters that I thought worthy of
consideration. I should just add that it is common cause that no
audi
took place prior to the notice in terms of section 28 (4) of the
Ordinance contained in a letter dated 9 June 2006 emanating from
applicant’s lawyers.

[32] As
a general rule it is accepted that a hearing should take place prior
to the decision.¹²
That this also applies in the present context is borne out by the
case law¹³
where it had been held that despite a notice period in the decision
itself a hearing was still a requirement. These decisions dealt with
similar provisions to the one under consideration. In view of these
precedents, with which I might add I have no quarrel with, and which
were not referred to by counsel, I agree with counsel that a hearing
should have taken place prior to the issuing of the notice. It seems
that the notice period provided for in the notice itself is to allow
an owner or occupant time to arrange their affairs so as to minimise
the inconvenience or disruption to them during the remedial work or
to take such steps to vacate the premises prior to the remedial work
commencing. I point out that in terms of the notice by the lawyer
the applicant had already decided to act in terms of the section in
that it was stated that it “intends exercising it’s
powers in terms of section 28(2)(b) upon expiring of the period of 1
month as envisaged in section 28(4)”¹⁴.
Ironically for applicant it did not have to allow for a hearing
prior to it’s decision to launch the present application.¹⁵

[33] Even
assuming that the hearing granted to respondent prior to launching
these proceedings was a proper hearing it would not rectify the fact
that no hearing was granted prior to the issuing of the notice.
Respondent was called upon to make representations as to why the
application should not be launched and not why the applicant should
not proceed to restore the building to it’s original state. It
is clear that the basis of the decision was that a valid notice had
already been served. This was denied by respondent. Once again the
decision was predicated on a valid notice already served and not
whether a notice needed to be given. The hearing was thus not for
the purposes of whether or not to serve a notice which should have
been the purpose of a hearing prior to the decision to forward a
notice. This hearing thus did not constitute compliance with the
audi
requirement prior to the notice being given. The current proceedings
suffers from a similar defect in that it assumes the validity of the
notice and as is evident from respondent’s answer the defence
is basically an attack on the validity of the notice. It is in any
event not for the Court to consider the respondent’s
representations. This is what applicant had to do prior to it’s
decision to serve a notice through it’s lawyers.

[34] In
view of the fact that no hearing was afforded the respondent prior to
the issuing of the notice in terms of section 28 of the Ordinance the
notice of 9 June 2006 was invalid and no consequences can flow from
it. It thus follows that applicant is not entitled to the relief
claim or to a declarator to the effect that the notice was a valid
one vis
a vis
the respondent. The application is accordingly dismissed.

[35] The
point that the audi
alterem
principle was not adhered to prior to the issuing of the notice in
terms of section 28 of the Ordinance was not raised by respondent in
it’s dealings with the officials of applicant nor was it raised
in the answering affidavit. I should mention that the point was
taken but not in the context of the said notice but in the context of
certain other decisions with which I did not have to deal in my
judgment. The point was raised at the hearing of this application
when counsel for respondent handed up what he termed was a
“Supplementary Note”.

[36] As
is evident from my judgment it is this audi
point belatedly taken that saved respondent’s bacon as far as
the validity of the section 28 notice is concerned. None of the
other points which were the points raised in the answering affidavit
and in the Heads of Argument and with which I dealt with above were
raised successfully. It goes without saying that the papers filed
and arguments advanced in respect of the issues unsuccessfully raised
by respondent made up the bulk of the record of the proceedings and
took up the bulk of the time in the arguments addressed to me.

[37] For
the reason set out in the preceding two paragraphs I’m prima
facie
of the view that it would not be equitable to let the costs follow
the result and that it is an appropriate matter where no costs order
should be made.

[38] Should
either party wish to make submissions as to why the abovementioned
prima
facie
view as to costs is not appropriate in this matter this should be
indicated to the Registrar within 10 days of this order so that the
matter can be set down for argument with regard to this aspect.
Should no such request be forthcoming the prima facie view indicated
shall become final, i.e. there shall be no costs order.

In
the result I make the following order:

1. The
application is dismissed.

2. Subject
to what is stated in the judgment there shall be no order as to
costs.

FRANK,
A.J.

ON
BEHALF OF THE APPLICANT Adv S Vivier

Instructed
by: Kirsten & Co Inc

ON
BEHALF OF RESPONDENT Adv R Tötemeyer

Instructed
by: Dr Weder, Kauta & Hoveka Inc