IN
THE SUPREME COURT OF NAMIBIA

CASE
NO.: SA 48/2012

DATE:
15 NOVEMBER 2013

REPORTABLE

In
the matter between:

 CHAIRPERSON COUNCIL OF THE
MUNICIPALITY OF WINDHOEK....................First
Appellant

COUNCIL OF THE MUNICIPALITY OF
WINDHOEK................................................Second
Appellant

TATENDA
MAWIRE...........................................................................................................Third
Appellant

And

GISELIND MARIA HELGA
ROLAND..........................................................................First
Respondent

FRAUKE JUTTA RENATE RECHHOLTZ
….............................................................Second
Respondent

JOBRA (PTY) LTD
….......................................................................................................Third
Respondent

MINISTER OF REGIONAL AND LOCAL
GOVERNMENT

HOUSING AND RURAL
DEVELOPMENT...............................................................Fourth
Respondent

Coram:                     
STRYDOM AJA, CHOMBA AJA and O’REGAN AJA

Heard:
                     
4 July 2013

Delivered:    
            15
November 2013

APPEAL
JUDGMENT

OREGAN
AJA (STRYDOM AJA and CHOMBA AJA concurring):

[1]          
This is an appeal
against an order of the High Court reviewing and setting aside a
decision to approve building plans taken by the Windhoek
Municipality.  In early 2010, Dr Mawire (the third appellant)
submitted building plans for the approval of a residential building
on land he owned in the suburb of Ludwigsdorf in Windhoek.  On
12 April 2010 the plans were approved by the Chairperson of the
Council of the Municipality of Windhoek (the first appellant) and the
Council of the Municipality of Windhoek (the second appellant). 
These two appellants are referred to jointly as ‘the Council’.

[2]          
Dr Mawire’s
land is on a steep slope and is bordered by roads on three boundaries
while the fourth boundary abuts a small river. The approved building
plans provided for a residential building with three separate levels
and building commenced during May 2010. Because Dr Mawire’s
land is bordered by roads, it has no abutting neighbours. 
However, there are residential properties situated directly across
the road from the land, and the three respondents in this appeal are
the owners of four of those properties. The first respondent, Dr
Roland, owns two erven roughly to the west of Dr Mawire’s
property. She lives on one of these with her husband, and rents out
the second to a tenant.  The second respondent, Ms Rechholtz,
owns and lives in a property to the south-west, while the third
Respondent, Jobro (Pty) Ltd, owns a property situated to the
south-east of Dr Mawire’s land.  Although the third
respondent is a company, its sole director is Dr Jordaan, whose home
is situated on the property.

[3]          
Dr Mawire’s
property, and the properties owned by the three respondents in
Ludwigsdorf all fall within the reach of the Windhoek Town Planning
Scheme (the Scheme).[1]
Accordingly
residential buildings must comply with the specifications provided in
that scheme, unless a departure is authorised by the Council.

[4]          
During May 2011, Dr
Roland’s husband, Mr P Roland, noticed that the building under
construction on Dr Mawire’s erf appeared to ‘be bulky and
potentially contravening the applicable building regulations’. 
Accordingly, he visited the offices of the Council and inspected the
building plans that had been approved for the site.  He found
that the building plans provided for a three-storey building, with a
further portion with a fourth floor and that the stipulated building
lines had apparently been transgressed on three of the four
boundaries. Mr Roland immediately met with the Chief Building
Inspector of the Council to raise his queries concerning the plans,
but although the Inspector promised to revert to him by 30 May 2011,
he did not do so.  On 31 May, Mr Roland wrote to the Chief
Executive Officer of the Council who did not respond, so he wrote a
further letter on 6 June in which he stated that unless construction
was halted on the site, he would instruct his legal representatives
to apply for an interdict restraining the construction of the
building until the question whether it had been lawfully approved had
been determined.  No response was received.

Proceedings in the High Court

[5]          
On 10 June 2011,
the three respondents approached the High Court on an urgent basis
seeking an order interdicting the construction works pending the
determination of an application to review and set aside the approval
of the building plans.  After hearing argument, on 23 June 2011,
the High Court granted an interim interdict restraining construction
beyond the first two floors, pending the determination of the review
proceedings.  Thereafter, the proceedings to review the decision
continued.

[6]          
Between the grant
of the interim interdict on 23 June 2011 and the hearing of the
review application on 14 March 2012, the Council placed a notice in
The
Namibian newspaper
on 11 August 2011 which stated that the third appellant ‘had
applied to the City of Windhoek for the erection of a two-storey
residential building with a basement’.   The
advertisement continued:

‘Note
should be taken that the City approved the plans as a two-storey
building, while some residents are of the opinion that it is a
three-storey building.  The City Council therefore based on the
objections raised intends to reconsider the application.’

The
notice continued by stating that the plans were open for inspection,
and that any person objecting to the proposed building should lodge
an objection in writing within fourteen days of the publication of
the notice.

[7]          
The respondents
wrote to the Council’s legal representatives observing that the
statement by the Council in the notice was misleading, as the High
Court had prima
facie concluded
that the building plans were for a three-storey building, and
arguably in contempt of the interim interdict that had been granted
by the High Court.  The respondents asked for information as to
who had made the decision to reconsider the third appellant’s
building plans, when the decision was taken and in terms of what
statutory authority it was taken. No response was received. 

[8]          
Instead, on 30
November 2011, the matter was placed before Council for resolution.
The Council adopted a resolution which ‘supported’ the
development on third appellant’s erf; ‘condoned’
the approval granted for the building plans; approved the relaxation
of the building lines and the height of the building ‘as they
pose no danger, threat or negative effect on the adjacent neighbours
and those across the street’; noted that Clause 21(3) of the
Scheme was not applicable to the development; and stated that
aggrieved objectors could lodge an appeal to the Ministry of Regional
and Local Government, Housing and Rural Development within 28 days of
being notified of the resolution.

[9]          
In an affidavit
lodged by the Council, a Town Planning Officer deposing on behalf of
the Council stated that the advertisement was placed ‘ex
abundante cautela’ and
not in order to undermine the order of the High Court.  ‘The
advertisements were placed’, it was said, ‘… to
assess whether there are other potential litigants that may either
join the applicants or initiate their own legal action’.

[10]       
The review
application was heard in the High Court on 14 March 2012. 
Although initially in their founding papers, the three respondents
had identified several bases as grounds for their application to
review and set aside the decision to approve the building plans,
during the course of proceedings in the High Court, the dispute
between the parties narrowed to one question - whether the approval
for the construction of a third level in the building plans was
lawful.  In asserting that it was not, the respondents rely on
Clause 21(3) of the Scheme which provides that:

‘.
. . no dwelling unit or residential building may be erected in excess
of two storeys on land zoned “residential” without
Council approval.  Council shall, in considering the
application, have regard to the impact, real or potential of the
additional storeys on the neighbouring property.’

[11]       
The appellants
asserted that the respondents were incorrect to rely upon Clause
21(3) because properly understood the building is not in excess of
two storeys. For this assertion, they referred to a definition of
‘basement storey’ or ‘cellar’ contained in
Reg 29B(1)(a)
of the Municipality of Windhoek Building Regulations.[2] 
That definition
provides that –

‘(a)      
“basement storey” or “cellar” shall mean any
storey of a building which is under the ground storey.’

Regulation
29B(1)(c) in turn provides that:

‘ “a
ground storey” shall mean that storey at a building to which
there is an entrance from outside on or near the level of the ground,
and where there are two storeys then the lower of the two: Provided
that no storey of which the upper surface of the floor is more than
four feet below the level of the adjoining pavement, shall be deemed
to be a ground storey.’

[12]       
The judge in the
High Court decided that it was difficult to apply the proviso
contained in Reg 29B(1)(c)
to the building under contemplation in this case, as given that the
building is being built on a steep slope, and because the land upon
which it is being built is bounded by three different roads, the
lowest storey of the building is sometimes well below the adjoining
pavement, and at other times not.  He concluded that in order to
address this anomaly he should read the word ‘any’ into
the proviso so that the proviso should be deemed to read:

‘Provided
that no storey of which the upper surface of the floor is more than
four feet below the level of [any] adjoining pavement, shall be
deemed to be a ground storey.’

[13]       
If the proviso were
so worded, the High Court concluded, then the lowest level would not
be a basement, because at some points it is less than four feet below
ground level and would therefore merely constitute a storey of the
building, in which case the building would be in excess of two
storeys in conflict with the provisions of Clause 21(3) of the
Scheme. Alternatively, even if the proviso were found not to have
application, so the High Court continued in its reasoning, then, in
any event, the lowest level of the building was a storey of the
building and again the building plans would not be in compliance with
Clause 21(3) of the Scheme. Accordingly, the High Court judge
concluded that the building plans were in conflict with Clause 21(3)
of the Scheme.  The High Court judge also dismissed the
submission by the Council that the applicants (respondents in this
Court) had not exhausted their remedies before approaching court, as
well as the argument made by the third respondent (the third
appellant here) that there had been an unreasonable delay in the
institution of the application.

[14]       
Accordingly, on 31
July 2012, the High Court handed down its judgment reviewing and
setting aside the building plans on the basis that the building
consisted of more than two storeys. The Council was ordered to pay
the applicants’ costs.

Appeal

[15]       
The first and
second appellants noted an appeal to this Court against the judgment
and order of the High Court on 13 August 2012, and the third
appellant noted an appeal against the judgment on 30 August 2012.

Late filing of the appeal record
and reinstatement of the appeal

[16]       
In terms of rule
5(5)(b)
of the Rules of the Supreme Court, the appeal record should have been
lodged on or before 31 October 2012 but instead it was lodged on 1
November 2012.  It was accordingly one day late with the
consequence that the appeal was deemed to have been withdrawn. 
The first and second appellants launched an application for
condonation for the late filing of the appeal record and for the
reinstatement of the appeal. In the affidavit attached to the
applications, the first and second appellants’ legal
practitioner explained the reasons for the late filing of the record.
He stated that after the transcribers had prepared the record,
certain errors in the record were identified and it was returned to
the transcribers to correct. The transcribers only returned the
corrected record on 1 November 2012, and the legal practitioners had
immediately lodged it.  The three respondents did not oppose the
applications for condonation for late filing of the record and
reinstatement of the appeal. A full explanation for the failure to
comply with the rules was provided in the application for
condonation, which was launched in a timely fashion. The record was
filed only one day late, and its late filing occasioned no prejudice
to the respondents or the court. Accordingly the relief sought in the
two applications was granted by this Court at the hearing on 4 July
2013.

First and second appellants’
submissions on appeal

[17]       
First and second
appellants argued that the High Court erred for the following
reasons.

(a)      
The High Court adopted an incorrect approach to the interpretation of
Reg 29B(1) of the Building Regulations, particularly insofar as it
purported to read the word ‘any’ into the proviso to Reg
29B(1)(c). In purporting to read the word ‘any’
into the proviso, the Court had violated the constitutional scheme,
which does not afford courts legislative powers.

(b)      
The High Court erred in not accepting that Reg 29B(6) of the Building
Regulations which provides that ‘[i]n any dispute in connection
with the provision of the ground level, the decision of Council shall
be conclusive’ was of application to this case.  If the
Court had correctly applied Reg 29B(6), it would have concluded that
the legislature had conferred the power to determine the ‘ground
storey’ upon the Council, and not on the courts, and that
accordingly the building plans could not be set aside on the basis
that they authorised a building in excess of two storeys.

(c)       
The Council correctly categorised the lowest storey of the building
as a ‘basement’ within the meaning of Reg 29B(1)(c)
and accordingly the building plans were not inconsistent with Clause
21(3) of the Scheme.

(d)      
The High Court erred in concluding that the applicants (the three
respondents before this Court) did not need to exhaust the remedies
provided in the Scheme, in particular, the appeal provided for in
Clause 51 of the Scheme;

(e)      
As to costs, the High Court had erred in ordering costs on the basis
of one instructing and two instructed counsel, as only one instructed
counsel had appeared in the matter on behalf of the applicants in the
High Court.

Third appellant’s submissions
on appeal

[18]       
On behalf of the
third appellant the following three arguments were made:

(a)      
that the High Court erred in that the application should have been
dismissed on the basis that they failed to bring the review
application within a reasonable time;

(b)      
that the High Court should not have set aside the decision in light
of the later decision of the Council dated 30 November 2011; and

(c)       
that Clause 21(3) of the Scheme did not apply to the construction of
Dr Mawire’s house.

Respondents’ submissions on
appeal

[19]       
On behalf of the
respondents the following submissions were made:

(a)      
The Scheme does not define ‘storey’, ‘ground
storey’ or ‘basement’.  Accordingly, these
words should be accorded their ordinary meaning. There is no reason
to incorporate the definitions contained in the Building Regulations
into the Scheme. If the ordinary meaning is attributed to the words
in Clause 21(3) of the Scheme, there is a prohibition on the
construction of a building in excess of two storeys, unless the
Council takes into account the factors specified in Clause 21(3).
Accordingly, the plans were approved in breach of the Clause.

(b)      
Regulation 29B(1) has no application to the facts of this case as it
is a discrete rule regulating ‘coverage’ and not height
restrictions.   Moreover, Reg 29B stipulates that its
definition of terms applies only to Reg 29B, and not even to the
Building Regulations generally, so it can have no application to
Clause 21(3) of the Scheme.

(c)       
Regulation 29B(6) has no application to this case as it provides that
a decision of the Council shall be conclusive in respect of a dispute
as to ‘the position of the ground level’. The position of
the ground is not in dispute in this case.

(d)      
The respondents were not afforded an opportunity to be heard before
the decision was taken.

(e)      
The respondents did not delay unreasonably in launching the review
proceedings.

(f)       
The decision of the Council of 30 November 2011 cannot cure any
defect in the earlier decision to approve the building plans.

(g)      
It was not necessary for the respondents to appeal the decision to
approve the building plans in terms of Clause 51 of the Scheme. That
Clause is not designed to create a remedy for people in the position
of the respondents.

Issues on appeal

[20]       
The following
issues arise for decision:

(a)      
Were the respondents obliged to lodge an appeal in terms of Clause 51
of the Scheme before approaching the High Court for relief?

(b)      
Did the respondents delay unreasonably before instituting proceedings
in the High Court?

(c)       
Did Clause 21(3), properly construed in the statutory framework,
apply to the building plans in issue in this case and, if so, was the
decision to approve the plans inconsistent with that provision?

(d)      
What is the relevance, if any, of Reg 29B(6) to the approval of the
building plans?

(e)      
Did the Council’s decision of 30 November 2011 cure any defect
in the earlier decision to approve the building plans?

[21]       
Before turning to a
consideration of these issues, it will be helpful to briefly set out
the legal framework that governs the approval of building plans and
then briefly describe the process for the approval of the plans by
the Council.

The role of Town Planning Schemes

[22]       
As mentioned above,
the Scheme is a town planning scheme approved by Proc No 16 on 1 July
1976 in terms of s 16(1) of the Town Planning Ord No 18 of 1954 (the
Ordinance).  Section 1 of the Ordinance provides that –

‘Every
town planning scheme shall have for its general purpose a
co-ordinated and harmonious development of the local authority area .
. . to which it relates . . . in such a way as will most effectively
tend to promote health, safety, order, amenity, convenience and
general welfare, as well as efficiency and economy in the process of
development and the improvement of communications.’

[23]       
Section 1 thus
makes clear that town planning schemes adopted in terms of the
Ordinance are aimed at the harmonious development of an area. The
Ordinance provides that a town planning scheme shall define the area
to which it applies[3]
and specify the
authority responsible for its enforcement,[4]
which authority is
under a duty to observe and enforce the scheme.[5]
 The Scheme at
issue in this case stipulates that the Municipal Council of Windhoek
shall be the authority responsible for enforcing the Scheme.[6]

[24]       
A town planning
scheme thus protects the interests of the inhabitants of the area to
which they apply.[7]
The effect of a
town planning scheme is that inhabitants have both obligations and
rights that flow from it. On the one hand, they are obliged to comply
with the scheme, unless they obtain authorisation to depart from it;
and on the other they are entitled to expect and demand compliance
with the scheme both by their municipality and by their surrounding
neighbours.  As noted in the previous paragraphs, the purpose of
a town planning scheme, and the benefits of compliance with it,
extend beyond the financial interests landowners may have in the
value of their properties. A town planning scheme determines a wide
range of matters that may not have ascertainable financial value,
including, safety, health, amenities and convenience, all of which
affect those who live or work in an area.[8]

Third
appellant’s application for the approval of building plans 

[25]       
As mentioned above,
the third appellant made application to the Council for the approval
of building plans in terms of Reg 6 of the Municipality of Windhoek
Building Regulations.[9]
The deponent to
first and second appellant’s answering affidavit was a Town
Planning Officer in the Planning Division of the Municipality of
Windhoek who was responsible for the inspection of the building plans
lodged by the third appellant.  According to the Town Planning
Officer, the process of the approval of building plans requires the
consideration and approval of the plans by several departments within
the municipality including the Health Department, the Roads
Construction Division, the Water and Sewerage Division, the Town
Planning Division, the Architecture Section and the Fire Brigade. 
The plans are therefore circulated to each of these departments for
approval.

[26]       
The question
whether a set of building plans is consistent with the Scheme is
considered by the Town Planning Department.  In this case, the
Town Planning Officer took the view that although the building lines
proposed in the plans were not consistent with the Scheme, as there
were no abutting neighbours, the building lines could be relaxed
without notification to neighbours.  As to the question of the
number of storeys of the building, the Town Planning Officer was of
the view that the building plans were not in conflict with Clause
21(3) of the Scheme, because although the proposed building consisted
of three floors, one floor was a basement within the meaning of Reg
29B of the Building Regulations, ‘and not regarded as a
storey’.  He considered the building thus to be a
two-storey building.  Accordingly, the Council approved the
building plans.

[27]       
I turn now to
consider the five legal issues that arise.

Exhaustion of internal remedies

[28]       
First and second
appellants argued that the respondents should first have exhausted
the internal appeal provided for in Clause 51 of the Scheme before
launching these proceedings.  Clause 51 of the Scheme provides
that:

‘(1)
Any person who is aggrieved by a decision of the Council in terms of
an application made under this Scheme, may appeal to the Competent
Authority.

(2)
If the decision is one which the Council is required to give upon
application 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 unreasonable delay on its part in giving a
decision, as if it were an appeal against a decision of the Council.

(3)
Written notice of an appeal shall be given to the Competent Authority
and to the Council. If the appeal is against a decision of the
Council, the notice shall be given within twenty eight (28) days from
the date of service on the appellant of the notice of the council’s
decision.

(4)
The Competent Authority may, on the application of any person
desiring to appeal, extend by not more than twenty eight (28) days
the time for making the appeal specified in the last preceding
paragraph, whether or not the time specified for making the appeal
has expired.’

[29]       
First and second
appellants relied on the decision of this Court in Namibian
Competition Commission and Another v Wal-Mart Stores
Incorporated.[10] 
In that case, the
Court noted that ‘the question whether an applicant will be
required to exhaust internal remedies before approaching a court for
relief, turns on the interpretation of the relevant statute…’.[11] 
A crucial
consideration is whether the internal remedy provided for in the
relevant statute will provide ‘effective redress’.[12]

[30]       
The question that
arises for consideration here, therefore, is whether Clause 51 of the
Scheme would have provided effective redress to the respondents. 
To decide that issue, it is necessary to consider carefully the
redress provided by Clause 51. First, it is clear from the language
of Clause 51 that an appeal lies only against a decision taken by the
Council in terms of an application made
under the Scheme.
Although it was not traversed in argument before the Court, upon
reflection, no decision appears to have been made by the Council in
relation to an application made under
the Scheme. 
As mentioned above, the building plans submitted by the third
appellant were submitted for approval in terms of Reg 6 of the
Building Regulations, not in terms of the Scheme.  In
considering whether the plans should be approved, the Town Planning
Officer did consider whether the plans were in conflict with the
Scheme, but at least insofar as the remaining issue on appeal is
concerned, the approval of the number of storeys of the proposed
building, the Officer concluded that Clause 21(3) of the Scheme was
not applicable, because the building comprised a basement and two
storeys, and was not in conflict with Clause 21(3). Given that no
application had been made in terms of the Scheme, it is not apparent
that an appeal under Clause 51 would be available.

[31]       
Even if this is not
so, and properly construed the application for the approval of
building plans by the third appellant did constitute an application
to the Council under
the Scheme, the
question would be whether Clause 51 was available to the
respondents.  Although it may well be that the respondents were
aggrieved by the decision to approve the plans, it is not clear that
Clause 51 is available to them: They were neither applicants for
approval, nor objectors to the approval, and had not been informed of
the application.  In considering the provision for an appeal
against a decision of a local authority in legislation not crafted in
identical terms to Clause 51, South African courts have determined
that the provision for an internal appeal is available only to those
who have made a planning application that has been unsuccessful.[13] 
In supporting this
conclusion, Lewis AJA in City
of Cape Town v Reader and Others[14]
reasoned: ‘[h]ow
can a person not party to the application procedure itself appeal
against the decision that results?’  Similarly, Plasket
AJA in the later decision of JDJ
Properties v Umngeni Local Municipality, held
that the essence of an appeal is a ‘rehearing (whether wide or
narrow)’ of the issues relevant to the earlier decision –

‘Implicit
in this is that the rehearing is at the instance of an unsuccessful
participant in a process. Persons in the position of the appellants
cannot be described as unsuccessful participants in the process at
first instance and do not even have the right to be notified of the
decision.’[15]

[32]       
Further
consideration of the language of Clause 51 lends support to the
interpretation that it is available only to an aggrieved applicant. 
Clause 51(2) provides that an appeal will lie ‘against a
refusal of the Council to give, or unreasonable delay’ on the
part of the Council in giving the decision. This rule seems directed
at a disgruntled applicant who is awaiting a decision, rather than a
person who may be aggrieved by the outcome of an application. 
Clause 51(3) also seems to contemplate appeals only by aggrieved
applicants in that it provides that an appeal must be lodged within
28 days ‘from the date of service on the appellant’. 
This provision contemplates that an ‘appellant’ under
Clause 51 will have received notice from the Council of the
decision.  Yet, as counsel for first and second appellants
rightly conceded in oral argument, there is no provision in the
Scheme for the service of decisions in respect of building plans on
anyone other than the person seeking approval of the plans. 
Clause 51(3) is a strong indication that the only person who may be
appellant in terms of Clause 51 is a person on whom a decision of the
Council is served, and not other persons who may be dissatisfied or
aggrieved by the decision but who are not applicants, and not served
with a copy of the decision.

[33]       
For these reasons,
it must be concluded that Clause 51 is not designed to provide an
appeal to a neighbour who is dissatisfied by the outcome of a
decision under the Scheme. Instead, Clause 51 is designed to provide
an appeal to applicants for decisions under the Scheme who are
aggrieved by the decision that has been taken, or by the failure of
the Council to take a decision. Given this conclusion, it must be
concluded that Clause 51 would not have provided the respondents with
effective redress, and accordingly the argument of appellants that
the respondents had failed to exhaust available internal remedies
must be rejected.

Unreasonable Delay

[34]       
The next question
that arises is whether respondents delayed unreasonably in launching
their application for review.  It is common cause that the
building plans were approved during 2010; that respondents were not
notified of the application for approval of the building plans; that
building commenced in May 2010 and continued until February 2011 at
which stage two floors had been constructed; and that there was then
a pause in construction work until May 2011 when construction
commenced again. It was argued on behalf of third appellant that
respondents delayed unreasonably in bringing their review because by
February 2011 it should have been clear to the respondents, and
particularly Mr Roland, who is a civil engineer, that a third storey
was ‘at the very least’ a possibility.  

[35]       
Respondents dispute
this assertion. They state that as owners of land within the ambit of
the Scheme, they have an expectation that the City will not approve
building plans that are inconsistent with the Scheme. When the
building commenced in May 2010 they had no intimation that that the
building would not be in compliance with the Scheme. They assert that
they only became aware during May 2011 that a third storey of the
building, in breach of the Scheme, was under construction. At that
stage, Mr Roland went to the City to inspect the plans and discovered
that indeed the building plans did provide for a three-storey
building. The respondents state that they took steps immediately to
request the Council to halt construction of the building while the
question whether the plans had been lawfully passed could be
resolved.  When that request was not granted, they instituted
these proceedings as a matter of urgency on 10 June 2011.

[36]       
It was argued on
behalf of the respondents that the issue of unreasonable delay was
interlocutory and not subject to appeal.  In making this
submission, counsel relied on the decision of this Court in Minister
of Mines and Energy v Black Range Mining (Pty) Ltd.[16]
That case was
concerned with a cross-appeal against an application to strike out
portions of affidavits filed in the matter. The Court held that
generally no appeal lies against orders that are not final in effect,
in being definitive of the rights of the parties.[17]
Strydom AJA, on
behalf of the Court, held that, although in some circumstances a
striking out order may have final effect, the striking out order that
was the subject of the cross-appeal did not have any final effect and
so the cross-appeal was struck from the roll.

[37]       
Unlike the question
whether an applicant has shown urgency sufficient to have a matter
heard on urgent basis, the question whether an applicant has delayed
unreasonably in launching review proceedings is not an interlocutory
issue. It is well established in the jurisprudence of this Court that
an appeal will not ordinarily lie from a decision by the High Court
that a matter is not urgent.[18] 
A decision that an
application is not urgent results in the application being struck
from the urgent roll but it is ordinarily not final in effect.[19] 
The consequence is
not the dismissal of the application, as the applicant is entitled to
enrol the application either in the ordinary course and not by way of
urgency, or again by way of urgency if circumstances change so as to
render a decision urgent after all.

[38]       
The question
whether there has been unreasonable delay in bringing a review is a
different question and is ordinarily relevant only to applications
for judicial review. It is not an interlocutory matter, but a
substantive issue that may determine the rights of the parties. 
As stated by this Court in Keya:

‘The
reason for requiring applicants not to delay unreasonably in
instituting judicial review can be succinctly stated.  It is in
the public interest that both citizens and government may act on the
basis that administrative decisions are lawful and final in effect.
It undermines the public interest if a litigant is permitted to delay
unreasonably in challenging an administration decision upon which
government and other citizens may have acted.  If a litigant
delays unreasonably in challenging administrative action, that delay
will often cause prejudice to the administrative official or agency
concerned and also to other members of the public.’[20]

[39]       
Deciding whether
there has been unreasonable delay involves two enquiries: was the
time taken by the litigant to institute proceedings unreasonable? And
if it is decided that the time was unreasonable, the question is
whether the Court should in the exercise of its discretion grant
condonation for the unreasonable delay.[21]  
Here the
Respondents instituted proceedings on 10 June, at most just over a
month from when they first noticed that the building was going to
exceed two storeys.  It is true that before May 2011,
respondents had noted that the building was transgressing the
building lines provided for in the Scheme, but it is clear that the
respondents were not particularly concerned about the relaxation of
the building lines. Their main concern as neighbours is, they say,
the fact that the building is going to be a three-storey building in
breach of the Scheme.

[40]       
Respondents were
entitled to expect that the Scheme would be observed. As mentioned
above, a town planning scheme both imposes obligations upon
landowners, and confers rights and expectations upon them. 
Landowners may not use their land in a manner inconsistent with the
scheme, but may also expect that their neighbours will be similarly
burdened with a duty of compliance with the scheme. When construction
commences in the area of a town planning scheme, a landowner is thus
entitled to assume, unless he or she has been notified otherwise,
that the building will comply with the terms of the scheme.

[41]       
Once a neighbour
takes the view, however, that a building under construction is not
consistent with the relevant town planning scheme, there is an
obligation to act promptly to investigate by approaching the Council
to examine the building plans. If, as happened in this case, a
neighbour takes the view that the plans have not been passed in
accordance with the relevant scheme, the neighbour must then act
quickly to seek to halt the construction, pending a determination of
a dispute about any decision to approve building plans that are in
conflict with the relevant scheme.  All this the respondents
did.  Upon noticing the fact that the building appeared to be in
excess of three storeys, the respondents approached the Council to
inspect the plans. And then, after deciding that the plans were not
consistent with the Scheme, took steps to halt the construction
pending a decision on the lawfulness of the decision to approve the
plans.

[42]       
It was argued on
behalf of third appellant that because Mr Roland, the husband of the
first respondent is a civil engineer, he should have realised earlier
that the building under construction would not be in compliance with
the Scheme. This argument cannot be accepted. As explained above,
respondents were entitled to assume that the building under
construction would be in compliance with the Scheme. Although in
February 2011 when the construction work halted temporarily, there
were pillars in place that to an informed eye may have suggested a
third floor was under construction, that was not indisputably the
case. Even the third appellant, in written argument, formulated it no
higher than: ‘Respondents saw that columns were projecting
upwards from the roof slab of the second storey raising, at the very
least, the possibility to a person in the position of [Mr Roland]
that a further floor was intended’.  A litigant is not
obliged to act just upon ‘a possibility’ that there may
be a breach of the Scheme.

[43]       
Accordingly, the
argument made by third appellant that respondents delayed
unreasonably in launching their review application is not accepted.

Did Clause 21(3), properly
construed in the statutory framework, apply to the building plans in
issue in this case and, if so, was the decision to approve the plans
inconsistent with that provision?

[44]       
As mentioned above,
Clause 21(3) of the Scheme provides:

‘…no
dwelling unit or residential building may be erected in excess of two
storeys on land zoned “residential” without council
approval.  Council shall, in considering the application, have
regard to the impact real or potential of the additional storeys on
the neighbouring property.’

[45]       
It is also common
cause that the building in question has three floors.  Yet, when
the Town Planning Officer had to consider whether the building was in
breach of Clause 21(3), he concluded it was not because although the
proposed building consisted of three floors, one floor was a basement
‘and not regarded as a storey’.  He thus considered
the building to be a two-storey building not in conflict with Clause
21(3).

[46]       
In reaching this
decision, the Officer relied upon the provisions of Reg 29B(1) of the
Building Regulations which provides as follows:

‘In
this regulation, unless the context otherwise indicates –

(a)       
‘basement storey’ or ‘cellar’ shall mean any
storey of a building which is under the ground storey.

(b)
       …

(c)       
“a ground storey” shall mean that storey of a building to
which there is an entrance from outside on or near the level of the
ground, and where there are two storeys then the lower of the two:
Provided that no storey of which the upper surface of the floor is
more than four feet below the level of the adjoining pavement, shall
be deemed to be a ground storey.’

[47]       
Regulation 29B
regulates the permitted ‘coverage’ of a building, the
amount of the erf which may be covered by building.[22] 
Regulation 29B(2)
states that the Council shall refuse permission for the erection of
any building that covers more than 50% of the relevant erf and Reg
29B(3) provides that a basement storey or cellar may cover the total
area of an erf in certain specified circumstances. Regulation 29B is
not concerned with the number of storeys that a building may have and
its definitions are expressly limited to application in the context
of Reg 29B.[23] 
There is nothing in
the Scheme that suggests that its provisions and, in particular,
Clause 21(3) of the Scheme, should be interpreted in the light of the
Building Regulations, or in the light of the definitions contained in
Reg 29B of those regulations.

[48]       
Clause 21(3) is
formulated in clear terms: no building of more than two storeys may
be erected on land zoned ‘residential’ without Council
approval which may only be given after Council has considered certain
specified criteria.  The building in question here clearly had
more than two storeys and undisputedly falls within an area zoned
‘residential’.  The meaning of Clause 21(3) is
unambiguous and the building plans here were in breach of it. 
Indeed when the Town Planning Officer completed the form approving
the building he had to identify the number of storeys that were
planned, and he noted that there were three, not two.  When this
was questioned by respondents, his response was that the lowest
storey on the plans was a basement storey within the meaning of Reg
29B, but he did not provide any explanation as to why Reg 29B of the
Building Regulations had any relevance to the interpretation of the
clear terms of the Scheme.

[49]       
From what has been
set out above, it is clear that Clause 21(3) of the Scheme makes
plain that no building may be built in an area zoned ‘residential’
with more than two storeys, unless the building is pertinently
approved by the Council within the meaning of Clause 21(3) after
having regard ‘to the impact real or potential of the
additional storeys on the neighbouring property’.  The
building in question here consists of more than two storeys, yet
Council’s attention was not pertinently drawn to this fact, and
the considerations stipulated in Clause 21(3) were not considered by
Council before giving approval to the building plans.

[50]       
The question that
now arises is whether, given that the Council erred in its
construction of Clause 21(3), it is appropriate for that decision to
be set aside on review.  The error lay in the Town Planning
Officer’s assertion that addressing the question posed by
Clause 21(3) – whether a building comprised more than two
storeys – required him to apply the definitions in Reg 29B of
the Building Regulations.

[51]       
The question
whether an error of law is reviewable has been a contested and vexed
one, not only in southern Africa but also throughout the
Commonwealth.[24]
  In
South Africa it was considered for many years that an error of law
would not render a decision reviewable unless the error went to the
jurisdiction of the administrator.[25] 
That changed in
Hira
and Another v Booysen and Another,
where Corbett CJ adopted a different more nuanced approach.[26]
 But that
approach, too, has to some extent been overtaken by constitutional
developments in both South Africa and Namibia.[27]

[52]       
In determining the
circumstances in which an error of law will render a decision
reviewable, the starting point in Namibia must now be Art 18 of the
Constitution which provides that –

‘Administrative
bodies and administrative officials shall act fairly and reasonably
and comply with the requirements imposed upon such bodies and
officials by common law and any relevant legislation, and persons
aggrieved by the exercise of such acts and decisions shall have the
right to seek redress before a competent Court or Tribunal.’

[53]       
Article 18 imposes
an obligation upon administrative officials to comply with the
requirements of relevant legislation. Material non-compliance with
governing legislation will thus often ground a cause of action for an
aggrieved person. When courts consider such review applications,
however, they must acknowledge that legislative provisions are often
capable of bearing more than one meaning. In deciding whether a
meaning adopted by an administrative official or body that has
interpreted a legislative provision, is the proper meaning of the
provision, a court should take into account the following
considerations: (a) the text and context of the legislative
provision, (b) its range of possible meanings, (c) the materiality of
the interpretation of the provision to the decision taken and to the
interests of the aggrieved applicant, (d) the nature of the
administrative power conferred upon the decision-maker, (e) the
nature and character of the decision-maker, and (f) whether the
legislative scheme implies that respect should be paid to the
interpretation adopted by the administrative decision-maker. 

[54]       
In this case, the
relevant legislative text is Clause 21(3). Its language is relatively
clear. It provides that in an area zoned ‘residential’, a
building may not have more than two storeys unless the Council
authorises additional storeys after considering certain stipulated
criteria.  The Council is the administrative body tasked with
the implementation of the Clause 21(3) and the Scheme generally. In
this case, the Town Planning Officer, and consequently the Council,
interpreted Clause 21(3) (as described above) in a manner not
consistent with its language, by reliance on a definition in a
different set of Regulations that expressly curtailed the application
of that definition to the clause within which it appeared.

[55]       
A court will
ordinarily pay respect to the interpretation of legislative
provisions by experienced and skilled town planners in their field of
expertise but there are limits to the respect that will be paid. 
A town planning scheme creates rights and obligations in landowners
in the area of the scheme and landowners are entitled to expect that
the ordinary language of the scheme will be implemented by the
officials responsible for its implementation.  The meaning
attached to Clause 21(3) by the Council is so at odds with the
ordinary meaning of the provision that it would not be appropriate
for a court to respect that interpretation. Accordingly it cannot be
accepted.  Respondents’ submissions that Clause 21(3) was
of application to the third appellant’s building plans must be
upheld, and the consequence is that the building plans were not
passed consistently with the requirements of Clause 21(3).

[56]       
In this regard, one
more comment should be added. It was submitted on behalf of first and
second appellants that the High Court erred in purporting to ‘read
in’ the word ‘any’ to Reg 29B(1)(c)
of the Building Regulations.  It is clear from what has gone
before that Reg 29B(1)(c)
should not have been relied upon at all in order to determine whether
the building plans in question were consistent with Clause 21(3) of
the Scheme.  Accordingly, the High Court erred in its assumption
that Regulation 29B did govern the meaning of Clause 21(3).

[57]       
A significant
portion of the submissions made on behalf of first and second
appellants related to the important consideration that should be
afforded to the doctrine of separation of powers when a court uses
the technique of ‘reading in’. In this regard, it is
important to note that the phrase ‘reading in’ is used to
describe both an approach to statutory interpretation and a form of
constitutional remedy.  The issue of ‘reading in’
arises in the context of statutory interpretation, when a court
interpreting a legislative provision concludes that it is necessary
in order ‘to realise the ostensible legislative intention or to
make the Act workable’[28]
to imply words into
a legislative provision that it does not contain.[29] 
The issue of
‘reading in’ arises in the context of remedy, when a
court, in order to address an issue of constitutional invalidity,
orders that words are to be read into a legislative provision to
render the constitutional provision consistent with the
constitutional framework with the minimum of judicial
interference.[30]
As a remedy,
‘reading in’ is similar to severance[31]
and requires an
express order of the Court.  Whether ‘reading in’ is
used as a tool of interpretation or as a constitutional remedy, a
court should take care to avoid usurping the legitimate role of the
Legislature.[32]
Given that Reg 29B
of the Building Regulations was not relevant at all to the proper
interpretation of Clause 21(3) of the Scheme, nothing further need be
said on this score.

What is the relevance, if any, of
Reg 29B(6) to the approval of the building plans?

[58]       
First and second
appellants also argued that Reg 29B(6) of the Building Regulations
was of application to this case. Regulation 29B(6) provides that:

‘In
any dispute in connection with the position of the ground level the
decision of the Council shall be decisive.’

[59]       
It was argued that
Reg 29B(6) affords the Council the final say in the determination of
what constitutes a ground level, and that a court should accordingly
defer to the Council on this question.  Regulation 29B(6),
however, like Reg 29B(1), is concerned with the question of the
‘coverage’ of a building.  Reg 29B provides rules
for determining the ‘coverage’ of a building, and one of
the determining considerations is the ‘ground level’ on
any erf.  The dispute in this case does not concern ‘coverage’,
nor does it concern the ‘ground level’ of the erf, it
concerns the question of the permissible number of storeys of a
building. Whatever the precise import of Reg 29B(6), therefore, it
cannot materially affect the proper interpretation of Clause 21(3) of
the Scheme and the question whether the building plans lodged by the
third appellant in this case were consistent with Clause 21(3). The
Scheme does not import the definitions or provisions of the Building
Regulations, which accordingly cannot be used to determine the
meaning of Clause 21(3).   This argument of the first and
second appellants accordingly cannot be accepted.

Did the Council decision of 30
November 2011 cure any defect in the earlier decision to approve the
building plans?

[60]       
As set out above at
paras 8 – 11, after the High Court had granted an interim
interdict restraining the continuation of the construction of the
building on third appellant’s erf, but before the review
application had been argued, the Council placed an advertisement in a
newspaper calling attention to the Council’s approval of the
third appellant’s building plans.  The advertisement
stated that the City intended to ‘reconsider’ the
application, stated that the plans were open for inspection, and
called upon anyone who objected to the building to lodge an objection
in writing within fourteen days of the publication of the
advertisement.

[61]       
On 30 November
2011, the Council adopted a resolution that ‘supported’
the development, ‘condoned’ the approval of the building
plans, and approved the height of the building as posing no danger,
threat or negative effect to the adjacent neighbours and those across
the street.  The Council resolution also stated that Clause
21(3) of the Scheme was not applicable to the relevant building and
stated that aggrieved objectors could lodge an appeal to the Ministry
of Regional and Local Government, Housing and Rural Development
within 28 days of being notified of the resolution.

[62]       
Although first and
second appellants did not suggest that this ‘reconsideration’
by Council was sufficient to address any defects in the original
decision, it was argued on behalf of third appellant that this
‘reconsideration’ did indeed address any earlier defect. 
In this regard, it should be noted that the ‘reconsideration’,
like the earlier decision of the Council in approving the plans, was
mistakenly based on the conclusion that the building plans related to
a building containing only two storeys, and that, therefore, Clause
21(3) had no application to the building plans in question. It is
clear from what has gone before that the ‘reconsideration’
by Council was thus vitiated by the same error of law that had marred
the earlier decision to approve the building plans.

[63]       
Perhaps of greater
concern, however, is the fact that Council chose to ‘reconsider’
the matter when an application was pending before the High Court in
which it was a respondent, without informing the respondents who were
the applicants in the High Court.  Respondents argued that in
doing so first and second appellants acted in contempt of court. 
That may be overstating the case, but it is not necessary to decide
that question now. All that need be said is that the Council could
not seek to condone its earlier decision, at the very least, without
affording the respondents an opportunity to be heard. Moreover, given
that the earlier decision to approve the building plans was invalid
because it was based on the mistaken view that Clause 21(3) of the
Scheme was not applicable to third appellant’s building because
that building comprised only two storeys and not three, that decision
could not subsequently be ‘condoned’ or ‘approved’
without the fundamental error on which it was based being corrected. 
Third appellant’s argument that the ‘reconsideration’
by Council of its approval of the building plan cured the defects of
the earlier decision must be rejected.

[64]       
Given that none of
the arguments raised by appellants have been successful, it follows
that the appeal must fail.

Costs

[65]       
The appeal has
failed. Nevertheless, as counsel for third appellant submitted, third
appellant has been ‘the innocent party’ in these
proceedings. He has proceeded with the construction of a building on
the basis of the purported approval of building plans by the
Council.  Yet, it is now clear that those building plans were in
conflict with the provisions of the Scheme.  Accordingly, it
would not be just and equitable to order the third appellant to pay
the costs of the appeal.  This approach is consistent with the
approach adopted in the High Court. In the circumstances, the first
and second appellants should be ordered to pay the costs of the
respondents, both in this Court and the High Court, such costs to
include the costs of one instructed and one instructing counsel. In
this regard, it should be noted that the High Court appears to have
erred in making a costs order which stated that the first and second
appellants (respondents in the High Court) should pay the respondents
(applicants in the High Court) costs on the basis of two instructed
and one instructing counsel. Respondents employed only one instructed
and one instructing counsel, both in the High Court and this Court.
This error is corrected in the order this Court makes.

Order

[66]       
The following order
is made:

1.        
The appeal is dismissed.

2.        
The costs order made by the High Court is set aside.

3.        
The first and second appellants are ordered to pay the costs of the
respondents in the High Court and on appeal, such costs to include
the costs of one instructed and one instructing counsel.

O’REGAN
AJA

STRYDOM
AJA

CHOMBA
AJA

APPEARANCES

FIRST
AND SECOND APPELLANT:       D Ntsebeza
SC (with him D Khama)

                                                                       
Instructed by
Sibeya & Partners

THIRD
APPELLANT:                                 
N Marcus

Instructed
by Nixon Marcus Public Law Chambers

FIRST,
SECOND AND THIRD

RESPONDENTS:                                       
A W Corbett

                                                                       
Instructed by
Fisher, Quarmby Pfeifer