REPUBLIC OF
NAMIBIA

CASE NO. A26/12

IN
THE HIGH COURT OF NAMIBIA, MAIN DIVISION

In
the matter between:

OMATANDO
VILLAGES RESIDENTS’

ADVISORY
COMMITTEE
............................................................Applicant

and

ONGWEDIVA TOWN
COUNCIL ........................................First
Respondent

MINISTER OF
REGIONAL AND LOCAL GOVERNMENT, HOUSING AND RURAL DEVELOPMENT
..............................................Second
Respondent

REGISTRAR OF
DEEDS .................................................Third
Respondent

MINISTER OF
LANDS AND RESETTLEMENT ................Fourth
Respondent

OKWANYAMA
TRADITIONAL AUTHORITY ......................Fifth
Respondent

CORAM: VAN
NIEKERK, J

Heard: 25 February
2012

Delivered: 13
March 2012

________________________________________________________________________

JUDGMENT

VAN
NIEKERK, J: [1] The applicant brought an urgent application
which was filed in 24 February 2012 and set down for hearing on
Saturday, 25 February 2010 at 9h00. The applicant prayed for a rule
nisi calling upon the first and second respondents to show
cause why a final interdict should not be granted restraining them
from demolishing any structures in Omatando Villages 1, 2, and 3
(“the villages”) without a valid court order.

[2]
The first respondent opposed the application. At the hearing the
Court was informed that the first respondent had in the meantime
furnished the applicant with a formal undertaking not to proceed with
any demolition in the villages without a valid court order. In light
hereof the applicant abandoned the application. The only issue that
was argued was the issue of costs.

[3]
In order to understand the submissions made it is necessary to
provide a brief overview of the factual allegations in the papers.
The applicant alleges that it is a voluntary association, the members
of which are the residents of the villages near Ongwediva in the
Oshana Region. Prior to Namibia’s independence the villages
were allocated by the traditional authorities of the time as
homesteads in terms of the customary laws of the Okwanyama community.
During or about 1992, the town of Ongwediva was proclaimed under the
Local Authorities Act, 1992 (Act 25 of 1992). The land on which the
villages are situated was and remains communal land as described in
Schedule 5 of the Namibian Constitution, read with Schedule 1 of the
Communal Land Reform Act, 2002 (Act 5 of 2002). Applicant alleges
that the customary rights of its members, who are residents in the
said villages, to occupation of the communal land in the villages are
recognized by virtue of section 28 of Communal Land Reform Act.

[4]
During or about November 2011 the first respondent was quoted through
its spokesperson in a newspaper article to say that the first
respondent was intending to take action against persons illegally
buying and selling plots of land within its boundaries. He was
further quoted as saying that two of the villages became part of the
town of Ongwediva during 1992 and that persons who bought land
illegally in these villages would not be compensated for their loss
when the first respondent starts reclaiming its land.

[5]
In response to this news the applicant was constituted on 29 January
2012 by concerned residents of the villages and given a mandate to
act on their behalf. As I understand the allegations, all the members
are legally in occupation of the land on which they reside.
Representatives of the applicant met with the first respondent to
address issues of concern to them, but nothing was resolved. The
applicant then decided to obtain legal advice and on 6 February 2012
approached the Legal Assistance Centre.

[6]
On 9 February 2012 another newspaper report quoted the first
respondent’s spokesperson as saying that all illegal structures
in the town would be demolished on 27 February 2012 and that the
villages were earmarked for demolition.

[7]
On the same day the applicant’s lawyers sent a letter to the
chief executive officer of the first respondent requesting
information pertaining to any proclamations in terms of which the
villages were incorporated into the first respondent’s land,
any written agreements between the headmen of the villages in
relation to the relinquishment of any customary land rights and
records of any compensation payments made pursuant to section 16(2)
of the Communal Land Reform Act.

[8]
On 10 February 2012 the applicant was invited by the first respondent
to a public meeting to be held on 14 February 2012 with all buyers of
land in the villages, as well as all owners of traditional homesteads
in the villages. The purpose of the meeting was to provide feedback
on the concerns raised at the previous meeting on 2 February.

[9]
On 10 February 2012 the first respondent replied to the letter by
applicant’s lawyers and advised that applicant’s request
for information had been forwarded to their legal practitioners.

[10]
On 13 February 2012 applicant’s lawyers sent a letter to first
respondent’s lawyers requesting the same information as earlier
requested from first respondent. In reply on the same day first
respondent’s lawyers in writing confirmed their appointment and
indicated that they were awaiting certain relevant documentation from
the first respondent and that they would revert.

[11]
On 14 February the meeting arranged by the first respondent took
place. Applicant’s members repeated the previous requests for
information, but the first respondent’s representatives could
not provide any answers and indicated that these matters would be
referred to their lawyers. The first respondent did agree to engage
in peaceful negotiations to find an amicable solution, the first
round to begin on 20 February 2012. The parties further agreed that
no further structures would be built in the villages until the legal
issues have been resolved.

[12]
On 20 February the applicant’s lawyers wrote another letter to
the first respondent’s lawyers asking for an undertaking not to
proceed with demolition of any of the applicant’s members’
properties.

[13]
At the negotiation meeting on the same day none of the issues were
resolved, no terms were negotiated and first respondent declined to
give an undertaking that it would not commence with the demolitions
on 27 February. It invited the applicant instead to another
negotiation meeting on 27 February 2012.

[14]
On 22 February a further newspaper report was published regarding the
proposed demolitions in which it was stated that these were expected
to start on 27 February and to continue until 4 March 2012.

[15]
Applicant’s legal representatives immediately sent a letter to
first respondent’s lawyers requesting it to provide an
undertaking by 16h00 on 22 February that first respondent would not
proceed with the demolitions on 27 February. Mr Watson of the
applicant’s lawyers also telephoned the offices of first
respondent’s lawyers and as the responsible lawyer was not
available, left a message to return the call urgently. By 13h00 on 23
February when the papers were being drafted, there had been no
response, either in writing or by telephone.

[16]
The aforesaid state of affairs, coupled with the fact that shortly
before in January 2012 another town council nearby, namely Oshakati
town council, had unilaterally demolished alleged illegal structures,
led the applicant to believe that the first respondent may have been
engaging the applicant and its members in bad faith and that the
first respondent would follow the example of its neighbour. What
further troubled the applicant was the fact that the second
respondent had previously taken no action to stop the demolition by
the Oshakati town council. The applicant then went ahead and lodged
this application on 24 February after having served the papers on
first respondent’s lawyers at 13h00.

[17]
At 16h45 on the same day the first respondent filed a notice of
opposition and an answering affidavit in which several points in
limine are raised. In the affidavit it is stated that the first
respondent had instructed Mr Phatela, who also appeared at the
hearing, to provide an opinion on the issues previously raised by the
applicant and its members and that the opinion is expected soon. It
is alleged that Mr Phatela had in the meantime spoken to Mr Watson
and informed him that first respondent’s instructing legal
practitioner would obtain instructions from the first respondent to
give an undertaking not to take the law into their own hands, but to
do everything within the ambit of the law. The first respondent’s
chief executive officer had at about 12h00 on 24 February 2012 given
an oral undertaking to its own lawyers that first respondent would
not demolish any structures without a valid court order. Before the
first respondent’s lawyers could forward a letter to this
effect to the applicant’s lawyers, the urgent application was
served. The said letter which further indicated that there is no need
to proceed to court with an interdict was nevertheless forwarded by
fax at 15h25, but the offices of the applicant’s lawyers were
already closed.

[18]
Mr Phatela on behalf of the first respondent made three main
submissions on urgency in support of the contention that applicant
should pay the first respondent’s costs. I shall deal with them
in turn.

[19]
The first submission is that the certificate of urgency does not
comply with paragraph 27(1) of the Judge-President’s
Consolidated Practice Directives dated 2 March 2009, which directs
that all urgent applications are heard on a court day, unless counsel
has certified in the certificate of urgency that the urgency of the
matter is such that it be heard on any other day. In this case
counsel’s certificate does not make mention of this. However,
there is no prejudice to the first respondent or the court in this
omission and I mero motu condoned same.

[20]
The second submission is that the application is pre-mature. Mr
Phatela criticized the applicant for relying on newspaper
reports, which the first respondent alleges are based on “rumours
and unfounded fears and emotional outcries”. Counsel referred
to the correspondence exchanged between the parties and the
allegations in the answering affidavit that Mr Watson was aware that
the matter was receiving attention and also referred to the
conversation he had with Mr Watson. Although there is no confirmatory
affidavit, I accept, for present purposes, that this conversation
took place. It should be noted that the first respondent does not
state on what date this conversation took place. Applicant makes no
mention of this – it may very well be that this conversation
took place after the papers were drafted. But even if the
conversation did take place, in the absence of any confirmation,
preferably in writing, that the undertaking awaited from the fist
respondent is or would be given, one cannot blame the applicant’s
lawyers for proceeding to court in these circumstances. The applicant
took prudent action by bringing the newspaper reports to the
attention of the first respondent and its lawyers and by making
enquiries about the first respondent’s intention and stance in
regard to the demolitions which were supposed to take place. In my
view the application was precipitated by the lack of any response by
the first respondent since its last letter dated 13 February 2012 in
which it indicated that it would “revert soonest” and by
the fact that there had been no clear and satisfactory reaction to
the urgent telephone message on 22 February and the two letters dated
20 and 22 February 2012 in which the applicant’s lawyers
indicated the urgency of the matter.

[21]
The third objection raised strikes me as being somewhat contradictory
to the former. It is that the applicant created its own urgency by
waiting too long to approach this court. It was contended that the
applicant was constituted already at the end of January 2012 as a
result of the issues canvassed in this application and that the
applicant waited a whole month to bring this application at the
eleventh hour and on a Saturday with only a few Court hours’
notice. It was further submitted that the fact that there were
meetings and negotiations between the parties does not mean that the
applicant should not have taken steps to be in Court earlier and with
longer notice to the first respondent.

[22]
In Bergmann v Commercial Bank of Namibia Ltd 2001 NR 48 (HC)
at 50H this Court stated that “[W]hen an application is brought
on a basis of urgency, institution of the proceedings should take
place as soon as reasonably possible after the cause thereof has
arisen.” The Court also stated in the context of urgent
proceedings to stay a sale in execution that non-compliance with the
rules in a case where the urgency is self-created through mala
fides or culpable remissness or inaction would not be condoned
(at 49H-I) (See also MWeb Namibia (Pty) Ltd v Telecom Namibia Ltd
and 4 others (High Court Case No. A91/2007 – unrep. del. on
31/7/2007). However, the Court also stated that each case must be
decided on its own facts and circumstances (at 50A).

[23]
In my view it cannot be stated that the applicant acted in bad faith
or displayed culpable remissness or inaction. It throughout invited
the first respondent to provide it with information and/or an
undertaking not to take the law into its own hands. The first
respondent promised to revert soonest, but did not. It repeatedly
failed to respond to applicant’s reasonable requests. When the
application was finally lodged, the first respondent was at last
prodded into action and provided the required undertaking. I should
also point out that it was in fact the first respondent who still
wanted to negotiate up to the very day of the intended demolitions.

[24]
In my view the applicant was within its rights to have brought the
application on an urgent basis. The result is that the first
respondent is ordered to pay the costs of the application.

_____________________

VAN NIEKERK, J

Appearance for
the parties

For the applicant:
Mr Mukonda

Instr. by Legal
Assistance Centre

For the first
respondent: Mr T C Phatela

Instr. by Conradie
& Damaseb