REPUBLIC OF NAMIBIA
REPORTABLE
CASE NO: A 310/08
IN
THE HIGH COURT OF NAMIBIA
In the matter between:
MARIA
SUSANA KLEYNHANS
…......................................................................................................APPLICANT
and
THE CHAIRPERSON OF THE
COUNCIL FOR THE
MUNICIPALITY
OF WALVISBAY
…...................................................................................FIRST
RESPONDENT
JOHNNES
ABRAHAM BURGER
…...............................................................................SECOND
RESPONDENT
MINISTER OF REGIONAL
AND LOCALGOVERNMENT,
HOUSING AND RURAL
DEVELOPMENT
…......................................................................THIRD
RESPONDENT
BV INVESTMENTS 605 CC
….........................................................................................FOURTH
RESPONDENT
CORAM:
DAMASEB,
JP
Heard
on: 12
October 2009; 6 - 8 April 2010
Delivered
on: 24
March 2011
JUDGMENT
DAMASEB,
JP: [1
] By way of Notice of Motion dated 22 October 2008, the applicant
sought an order in the following terms:
Reviewing and setting
aside the decision of the first respondent, as reflected in
building permit issued on 18 March 2008, approving building plans
in respect of erf 95 Langstrand ('the property');
Alternatively to
paragraph 1 above, reviewing and setting aside the decision of the
first respondent, as reflected in building permit issued on 30 May
2005, approving building plans in respect of the property.
Declaring that the
construction of the dwelling houses on the property is in
contravention of the first respondent's Town Planning Scheme;
Directing the second
respondent to demolish such dwelling houses, alternatively such
portion thereof as may be necessary to comply with the provisions of
the first respondent's Town Planning Scheme;
Pending demolition and
in any event, interdicting and restraining the second respondent
from using or occupying, or causing or permitting to be used or
occupied, the said dwelling house.
Directing that the first
respondent pay the cost of this application, jointly and severally
with such other respondent who may oppose;
Granting further and/
or alternative relief.
[2] The applicant seeks
the above relief on the premise that two dwelling houses, said to be
mirror images of each other, were built on a property adjacent to
that of the applicant's in circumstances where the applicable Town
Planning Scheme of the municipality of Walvisbay only allowed one
dwelling house in 'single residential' zoned areas, except if the
first respondent's municipal council ('council') by 'special
consent' allowed that to happen. In addition, the applicant seeks to
enforce against the second dwelling in question the 'setback
provisions, the two storey height restrictions, and thecoverage
restriction as provided for in the Town Planning Scheme ('TPS') of
the said municipality, a local authority created under s 2 read with
s 3 (as amended)
of the Local Authorities Act, No. 23 of 1992. She also relies on a
servitude in the title deed of the neighbour's property.
THE
PARTIES:
[3] The applicant is
Mrs. Maria Susana Kleynhans, an adult female residing at erf 423,
Langstrand, Walvisbay and is the registered owner thereof. The first
respondent is the chairman of the municipal council of the
Municipality of Walvisbay, duly established as such in terms s 2
read with s 3 (as amended) of the Local Authorities Act, No. 23 of
1992 ('the LAA'). The second respondent is Johannes Abraham Burger
who resides in Windhoek and was, until 14 July 2009, the sole
registered owner of erf 95, Langstrand, which is adjacent to the
applicant's erf 423. The third respondent is the Minister of
Regional and Local Government, Housing and Rural Development with
statutory powers over the first respondent under the LAA. The fourth
respondent is BV Investments 605 CC, a Close Corporation which
became part-owner of erf 95 on 14 July 2009. When the applicant
launched the present proceedings on 22 October 2008, the fourth
respondent was not joined. It was only in October 2009 - a few days
before 12 October 2009 when the case was to be heard - that the
fourth respondent was joined, resulting in a postponement.
[4]
At the commencement of the hearing, Mr Rosenberg submitted in oral
argument that in the intervening period since the postponement on 12
October 2009, the issues in thecase had become confined and that the
raft of the preliminary issues raised by the first respondent, save
non-joinder and unreasonable delay, have fallen away. He reiterated
that the applicant seeks a declarator following from the review
relief. In the event of the review relief being granted, the Court
is invited to afford the first, second and fourth respondent the
opportunity to regularize what had been done irregularly and that -
in such an event - demolition stands over pending such
regularization which should however take into account the
applicant's right to audi.
In
their answering papers, both the first and second respondents echo
the point that should the review be successful, the Court should
afford them the opportunity to put right that which is the subject
of complaint in the review.
THE
PLASCON- EVANS RULE APPLIES
[5]
The present being motion proceedings in which final relief is
sought, the rule in Plascon-
Evans
applies:
motion proceedings are designed for the resolution of common cause
facts
but should disputes of fact arise on the papers, the Court may still
grant a final order if the facts deposed to by the applicant and
admitted by the respondent, together with the facts put up by the
respondent, justify such an order. Even if facts are not formally
admitted, but it is clear that they cannot be denied, the Court must
regard them as admitted. In certain circumstances, denial of a fact
may not be such as to raise a real, genuine or bona fide dispute of
fact. Should a genuine dispute of fact arise on the papers but it is
not referred to oral evidence, the Court mustaccept the version of
the respondent unless it is so far-fetched that it can be rejected
on the papers.
SALIENT
COMMON CAUSE OR ADMITTED FACTS
[6] The applicant is the
registered owner, together with another person, of erf 423 situated
at Longbeach (Langstrand) in the Walvis Bay municipal area. Erf 95
is now jointly owned by the second and fourth respondents and is
situated at Longbeach. The Longbeach area falls under the
jurisdiction of the Walvis Bay local authority created in terms of s
2 read with s 3 (as amended) of the LAA. In 2005, the second
respondent applied to the council to construct two dwellings on erf
95. Approval was granted but lapsed as the second respondent did not
proceed with the construction. He resubmitted the plans in 2008 and
on 18 March 2008 the council granted approval for the construction
of two dwellings on erf 95. The two dwellings were intended to be
mirror images of each other and were approved as such by the
council. Erf 423 borders 95 on the western side. Part of the
structures erected on erf 95 face the common boundary with erf 423.
The middle wall of the structure on erf 95 runs right up to the
boundary with
erf 423.
[7] The construction on
erf 95 was , at the time it happened, governed by the Walvis Bay
Town Planning Scheme ('TPS'), enacted and proclaimed by the
municipality on 15 February 1997 in Government Gazette Notice No.17,
pursuant to the provisions of the Town Planning Ordinance 1954 (
'the Ordinance').
[8]
Erf 95 falls in density zone 4 in terms of PART III, clause 12,
Table C of the TPS. The applicable building restriction in density
zone 4 is 'one dwelling unit or dwelling house per 300m5'.
Clause 12.3 of the TPS states:
"Not
more than one dwelling house or residential building may be erected
on any erf without the consent
of
the Council."
Therefore , clause 12.1,
read with Table C, of the TPS provides for a density requirement
which limits the number of dwelling houses and dwelling units which
may be erected on erven in density zone 4 (where the property of the
applicant and the second and fourth respondent fall), to one
dwelling unit per 300 square meters.
[9]
The definition of dwelling house in terms of clause 1 (definition)
of
the TPS is:
'(i) a main house which
means a dwelling consisting of a suit of interconnected mutually
adjacent rooms with kitchen and with at least a bathroom with toilet
facilities and designed for occupation by a single family;
And/or
(ii) an outbuilding
which means a subsidiary building used in connection with the
dwelling house;
And/or
(ii)
a second dwelling which means, subject
to the special consent of the Council, an additional subsidiary
second dwelling house.'
[My underlining for emphasis]
[10] In terms of the
definition section a second dwelling is possible only with the
'special consent' of the council which grants special consent in
terms of clause 9 of the TPS after the applicant had published at
his own expense, once a week for two consecutive weeks in an English
newspaper circulating in the area, a notice of his intention to make
such an application, affording any person having any objections to
the proposed use of land or the erection and use of the proposed
building the opportunity to object with the council and also with
the applicant in writing.
[11] Clause 4 of the TPS
provides that except with the consent of the council, no building or
structure or any portion thereof shall be erected nearer than 3m to
any lateral or rear boundary common to an adjoining erf. Clause 18
of the TPS restricts buildings in a single residential zone to a
height of two storeys unless the council consents to the increase in
the number of storeys if satisfied that the applicant therefore has
furnished sufficient proof that a greater height is necessary and or
desirable.
[12] In terms of clause
17 read with table E of the TPS, a building may not cover more than
50% of the site.
THE
APPLICANT'S CASE
[13]
The main supporting affidavit, duly confirmed by others as
appropriate, was deposed to by the applicant. She duly amplified her
papers in terms of High Court Rule 53 (4) after the first respondent
made the record available. The applicant avers that she and her
partner, Mr. Alfred Hertzberg, consolidated erf 87 and erf 88 into
one erf 423 on 9 July 2003. At the time that
happened,
she alleges that she made enquiries with officials of the
municipality regarding the zoning and, in particular, the
restrictions applicable to the development and use of theirs and the
surrounding properties (including erf 95). She established from
these enquiries that all the affected properties were zoned 'single
residential' in terms of the TPS. According to her, land zoned
'single residential' may be used, or buildings erected thereon, only
for the purpose of a dwelling house. She maintains that in terms of
clause 12.3 read with Table C of the TPS not more than one dwelling
house or residential building may be erected on any erf without the
special consent of the council. The applicant alleges that it was on
the strength of the restrictions applicable to the erven of which
theirs (and erf 95) is part, and the advice obtained that the first
respondent is legally bound to enforce the terms of the TPS, that
she and her partner developed erf 423 by constructing one dwelling
house.
Alleged
unlawful approval
[14] The applicant
states that the record of the decision filed on behalf of the first
respondent demonstrates that of the two dwelling houses constructed
on erf 95, none is subsidiary to the other but that the two are
mirror images of each other. This, according to her, resulted in two
very substantial dwelling houses contrary to the TPS and without
there being obtained the special consent from the council for the
second dwelling. She maintains that no such special consent had at
any stage been sought or granted. The applicant submits that in
granting building plan approval, the council failed to apply its
mind properly to the question at hand or was materially influenced
by an error of law in thinking the definition of a 'single dwelling'
in the TPS permits the erection of two dwelling houses on a property
zoned single residential.
[15] The applicant also
contends that the 2008 approval was merely an endorsement of the
2005 approval instead of the council treating the 2008 application
as a fresh application which required fresh consideration.
Accordingly - the argument goes - the council erred and misdirected
itself by taking into account irrelevant considerations; failed to
take into account relevant considerations and further failed to
apply its mind to the decision it was called upon to make.
[16] The applicant
further contends that the building plans and the buildings erected
thereon infringe the 3m building setback provisions provided for
under section 4 of the TPS. She relies on a photograph attached to
her papers for the allegation that part of the structures erected on
erf 95 facing the common boundary with applicant's erf 423 runs
right up to the boundary with applicant's erf 423 with no allowance
for any setback being made.
[17] The applicant also
alleges that the construction on erf 95 is , in contravention of the
TPS, in part a three storey as opposed to a two storey as, according
to her, the second storey of the building is more than 4m and
therefore constitutes a 'pro rata plurality of storeys'. Since no
consent therefore was granted by the council, she maintains, this is
in breach of clause 18 of the TPS.
[18] The applicant
alleges further that the first floor of the building on erf 95 is
294, 3 square meters and is thus more than 50% of the total area of
the site (i.e.433sqm) in contravention of clause 17 of the TPS. The
applicant's case is that in the absence of consent by the council,
clause 17 was also contravened.
THE
FIRST RESPONDENT'S CASE
[19] Mr. Jacobus Adriaan
Louw deposes to the main affidavit on behalf of the first
respondent. Louw is the municipality's engineer: Roads and Building
Control Department since 1995 and is duly authorized in such
capacity to, amongst others, approve building plans, approve the
erecting of second dwellings on erven and to approve the increase of
storeys for buildings. The deponent states that he has been
approving building plans since 1991 and has obtained extensive
experience and knowledge of various building regulations and town
planning schemes including that of fist respondent. In a nutshell,
the defence he puts up on behalf of the first respondent is that the
approval of the building plan on erf 95 complied with the TPS and
that approval for the construction of two dwellings on erf 95 is
permissible under the TPS without special consent of the council and
that in the event it is found that consent was required, the same
was granted by him under delegated authority. He submits that the
applicant's interpretation of the TPS - in insisting that two
dwellings are not permitted on a single residential zoned property
falling in density zone 4 - is erroneous. Louw also avers that he
had been delegated by the council to grant approval of applications
for the relaxation of building lines and erection of buildings on
boundaries; increasing building coverage on erven; and approval of
an increase in the number of storeys.
[20] As regards the
building line restriction of 3 meters, Louw states that the
necessary building line relaxation was applied for by the second
respondent and that approval was granted therefor. He says that a
wall was built by the second respondent which encroaches on the 3 m
building setback provision in respect of which no relaxation was
applied for or obtained and that second respondent was directed by
the municipality to either submit new building plans for approval or
demolish it.
[21] Louw concedes that
an insignificant part of the building on erf 95 exceeds the 4 meter
limit by 60 centimeters and that under delegated authority he
approved it given the insignificant extent of the infringement. Louw
says that the part that infringes does not relate to a habitable
storey but to a staircase and that he was satisfied that the
approval of the 60 centimeters above the norm was necessary and
desirable in the circumstances.
[22] Louw concedes
further that the coverage on erf 95 marginally exceeds the minimum
of 50% of the site but that he approved it.
[23] Louw avers that the
applicant asks for a rigid and inflexible application of the
provisions of the TPS while, to her knowledge, in appropriate cases
some latitude is allowed by him acting on behalf of the municipality
and that the applicant had in the past been a beneficiary of such
latitude. He also adds that to the extent the Court finds that in
approving building plan approvals on erf 95 there was non-compliance
with the applicable legal provisions, the first respondent's case is
that there was substantial compliance.
First
respondent's points in limine:
[24] Louw denies that
the applicant is entitled to the relief she seeks. He also raises
four points in limine, but in the way the litigation has since
evolved, only two remain: being unreasonable delay in bringing the
review application and the non-joinder of a 'necessary' party, the
Namibian Planning Advisory Board (NAMPAB).
Unreasonable
delay
[25] Louw contends that
there was unreasonable delay in bringing the review application and
that there is no explanation by the applicant for the delay. The
delay, it is said, prejudices the first respondent because as a
result thereof the second respondent had proceeded with the
construction of the second dwelling sought to be demolished and if
the application succeeds, the second respondent may be compelled to
demolish such dwelling house or a portion thereto - thus exposing
the first respondent to a litigious risk as this might ultimately
result in litigation against the first respondent for any damage
that the second respondent may suffer as a result of having to
demolish the structures constructed on the strength of the
municipality's approval of the building plans. The first respondent
further states that because of the delay it was placed at a
disadvantage in having to collect and to articulate information
relating to historical events.
Non-joinder
of NAMPAB
[26]
The other point raised in
limine by
the first respondent is that NAMPAB, created in terms of s 9 of the
Ordinance, is entrusted with the duty to advice the third respondent
on matters relating to the preparation and carrying into effect of
Town Planning Schemes and as such, considering that the first
respondent's application for rezoning of certain properties
(including that of the second respondent) was still pending before
NAMPAB -a decision by NAMPAB granting such rezoning would render the
application for review academic as that which is now objected to
would be properly authorized by such rezoning. The first respondent
thus asked for a stay in the proceedings pending
the
outcome of the proceedings before NAMPAB, alternatively, pending the
joinder of NAMPAB to these proceedings.
THE
SECOND RESPONDENT'S CASE
[27]
The second respondent's answering papers do not add a great deal to
the facts upon which the application is to be adjudicated as far as
non-compliance with the TPS is concerned. For the most part he
aligns himself to the position of the first respondent, adding only
that he faces the risk of serious legal action based on breach of
contract if the relief is granted. He also raises the point in
limine, elaborated
in the heads of argument filed of record, that the applicant lacks
locus
standing
for the relief she seeks as she has not established a clear right
that was breached as a result of the erection of the allegedly
offending buildings.
DISCUSSION
OF THE POINTS IN LIMINE
Lack
of locus
[28]
On behalf of the second and fourth respondents it is argued that the
applicant has failed to demonstrate a clear right that has been
interfered with and that she has no satisfactory remedy to protect
herself from the breach.
It
is said that the applicant failed to demonstrate that amenities
relating to her property were negatively affected by the
construction on erf 95 and that to the extent that she relies on the
diminution in the value of her property, she has a damages claim.
[29]
I am not persuaded by this argument. Town Planning Schemes can in an
appropriate case such as the present entitle affected residents to
have them enforced. The applicant's property, it is common cause,
borders that of the second respondent. I agree with the following
statement in BEF
(Pty) Ltd v Cape Town Municipality and others 1983
(2) SA 387 (C) at 401B-F:
'In my view a person is
entitled to take up the attitude that he lives in a particular area
in which the scheme provides certain amenities which he would like
to see maintained. I also consider that he may take appropriate
legal steps to ensure that nobody diminishes these amenities
unlawfully...In the present case ...the applicant is an immediate
neighbour to the property on which the non-conforming garage was
built.
[30]
More importantly, the argument advanced by the second and fourth
respondent flies in the face of the doctrine of legality: It is a
carte
blanche to
arbitrariness which is the antithesis of the new ethos brought about
by the Namibian Constitution that all administrative action derive
legitimacy from either the Constitution and laws (which include
subordinate legislation) made under it. The second and fourth
respondents' point in
limine must
fail.
Non-joinder
[31] This point in
limine is a dilatory one and specifically sought that the
proceedings await the outcome of the proceeding pending before
NAMPAB, alternatively pending it being joined. As I understand the
legal position, it certainly was not intended - andcould not have
had the effect of - extinguishing the cause of action on which the
application is based.
[32]
The leading case on joinder in our jurisprudence is Amalgamated
Engineering Union v Minister of Labour, 1949
(3) SA 637 (A). It establishes that it is necessary to join as a
party to litigation any person who has a direct and substantial
interest in any order which the court might make in the litigation
with which it is seized. If the order which might be made would not
be capable of being sustained or carried into effect without
prejudicing a party, that party was a necessary party and should be
joined except where it consents to its exclusion from the
litigation. Clearly, the ratio
in
Amalgamated
Engineering Union is
that a party with a legal interest in the subject matter of the
litigation and whose rights might be prejudicially affected by the
judgment of the Court, has a direct and substantial interest in the
matter and should be joined as a party.
[33]
NAMPAB is created by s 9 (1) of the Ordinance. In terms of s 12 (1)
of the Ordinance, it has predominantly advisory powers and is
responsible for setting the policy framework in town planning
matters.
The advisory role is towards the third respondent and local
authorities such as the first respondent. The Ordinance specifically
states that any power or function to be exercised by NAMPAB in terms
of the Ordinance shall only be performed 'if
the minister so directs'. It
does not therefore act independently.
[34] The first
respondent maintains that it was necessary for the applicant to join
NAMPAB. The applicant disagrees. Her position is that joinder was
not necessary because the Minister was joined - and in any event
only out of excess of caution. He did not have to be joined as the
competent authority implicated by the review application is the
first respondent. The applicant maintains that the pending procedure
before NAMPAP was an application by first respondent to rezone and
that has nothing to do with the issue before court at this point in
time. I agree. What we are here concerned with is the manner in
which the first respondent interprets and implemented an existing
policy contained in the TPS. That does in no way affect the legal
rights of NAMPAB. Even if it were to make a recommendation favorable
to the first respondent, that still requires to be acted on by the
third respondent who in event chose not to oppose the present
proceedings.
[35] As Mr Rosenberg
correctly submitted, the Ordinance provides for a scheme whereby the
Minister - not NAMPAB - administers the planning legislation. That
much is abundantly clear from secs 4-7 of the Ordinance. The first
respondent had, in part, justified the need for the joinder of
NAMPAB on the premise that there was then pending before it the
munipality's rezoning application of the land on which erf 95 is
located. In the replying affidavit, the applicant avers that NAMPAB
had since unfavourably recommended that rezoning application to the
Minister who acted on the recommendation. The first respondent says
the allegation is hearsay and seeks to have it struck. Given
NAMPAB's mere advisory role in relation to the Minister and the
first respondent, I would still have come to the conclusion that
NAMPAB was not a necessary party. The allegation sought to be set
aside therefore adds nothing to the debate and I need not decide if
it is hearsay.
[36] I come to the
conclusion that the first respondent failed to establish that NAMPAB
would be prejudicially affected by the decision of this Court. I am
unable to see what is NAMPAB's direct and substantial legal interest
in the review application that will be prejudicially affected by a
decision in this matter. Accordingly, the non-joinder point fails.
Unreasonable delay
[37]
For the adjudication of this point in limine,
the
following facts are common cause:
(i)
The
building plan approval which is the subject of challenge was taken
on 18 March
2008.
(ii)
The
applicant became aware of the construction by the second respondent
on erf 95 in June 2008 and discussed it with her legal practitioner
in June 2008 when the lawyer begun to investigate the matter.
(iii)
On
17 June 2008, the applicant's lawyer directed a letter to the first
respondent objecting to the second respondent's construction on erf
95 and asked that it require the second respondent to cease the
construction.
(iv)
The
first respondent replied to the applicant on 30 June 2008 and made
clear that the construction by the second respondent was in
furtherance of building plan approvals granted by it and that noting
was untoward in either the approval or the construction by the
second respondent.
(v)
On
7 July the applicant wrote to the second respondent demanding he
ceases construction and give an undertaking to that effect. On 14
July 2008 the second respondent wrote to the applicant informing her
that the construction would not cease.
(vi)
The
applicant then - on 30 July 2008 - asked the first respondent to
provide her with copies of the building plan approvals and other
relevant documents in respect of erf 95 which the first respondent
by letter dated 27 August 2008 declined to provide but on the same
date changed tact and furnished the applicant the information asked
for.
(vii)
The
application for review was then launched on 22 October 2008.
(viii)
The
completion certificate in respect of the disputed buildings on erf
95 was granted by the first respondent on 20 November 2008.
[38] The first
respondent had initially asked for the striking of other matter from
the applicant's papers. Mr Cohrsen abandoned most of them in oral
argument except paragraph 8 of the notice to strike directed at
paragraph 27 of the applicant's reply in the following terms:
'The account in my
founding affidavit of the steps I took after commencement of
construction reveals that I caused the matter to be investigated,
without any delay whatsoever and to the extent possible'.
[39] The passage in
question is sought to be struck on the basis that it impermissibly
introduces new matter in reply, alternatively is irrelevant or
vexatious. Even if the impugned passage were allowed to stand it
would in my view not assist the applicant in making out the case
that there was no unreasonable delay, because in the founding papers
she does not set out the steps that necessarily and reasonably she
took which justified her not seeking urgent relief in the
circumstances that I will soon set out. Since the impugned passage
adds nothing of significance it is, as suggested, irrelevant and I
strike it for that reason.
Was
there unreasonable delay?
[40] The applicant
disputes that there was unreasonable delay in bringing the review
application and states that the period between the sending of the
letter of demand and the launching of the application was relatively
short ; that instituting legal proceedings requires investigation
and preparation; that the first respondent only provided the
information asked for on 27 August 2008; that she had to consult
with counsel and obtain advice on prospects of success before
embarking on litigation and that it had always been clear to the
respondents that she challenged the lawfulness of the building plan
approval and that legal proceedings were imminent.
[41]
In Ebson
Keya v Chief of Defence Forces and 3 others
the
court had occasion to revisit the authorities on unreasonable delay
and to extract from them the legal principles applied by the Courts
when the issue of unreasonable delay is raised in administrative law
review cases. The following principles are discernable from the
authorities examined:
(i) The review remedy is
in the discretion of the Court and it can be denied if there has
been an unreasonable delay in seeking it: There is no prescribed
time limit and each case will be determined on its facts. The
discretion is necessary to ensure finality to administrative
decisions to avoid prejudice and promote the public interest in
certainty.
The first issue to consider is whether on the facts of the case the
applicant's inaction was unreasonable: That is a question of law.
(ii)
If
the delay was unreasonable, the Court has discretion to condone it.
(iii)
There
must be some evidential basis for the exercise of the discretion:
The Court does not exercise the discretion on the basis of an
abstract notion of equity and the need to do justice between the
parties;
(iv)
An
applicant seeking review is not expected to rush to Court upon the
cause of action arising: She is entitled to first ascertain the
terms and effect of the decision sought to be impugned; to receive
the reasons for the decision if not self-evident; to obtain the
relevant documents and to seek legal and other expert advice where
necessary; to endeavour to reach an amicable solution if that is
possible; to consult with persons who may depose to affidavits in
support of the relief.
(v)
The
list of preparatory steps in (iv) is not exhaustive but in each case
where they are undertaken they should be shown to have been
necessary and reasonable.
(vi)
In
some cases it may be necessary for the applicant, as part of the
preparatory steps, to identify the potential respondent(s) and to
warn them that a review application is contemplated.
In certain cases the failure to warn a potential respondent could
lead to an inference of unreasonable delay.
[42]
Writing for a two-judge bench of this Court in Disposable
Medical Products v Tender Board of Namibia 1997
NR 12 at 132D) strydom jp said:
'In deciding whether
delay was unreasonable two main principles apply. Firstly whether
the delay caused prejudice to the other parties and secondly, the
principle applies that there must be finality to proceedings.
Although the Court has discretion to condone such delay it is seldom
if ever, prepared to do so where the delay caused prejudice.'
[43]
I wish to repeat the following remarks in the Keya
case
at 10-11, para 19:
'In my experience, every
review and setting aside of an administrative decision causes
prejudice of one or other kind to a respondent in a review
application. Proof of prejudice, without more, should not take the
matter very far. Otherwise a Court would not grant review. What is
needed is proof of prejudice which could have been averted if notice
were had of an impending review. The more substantial such
prejudice, the more it strengthens the conclusion that the delay in
bringing a review application was unreasonable. In exercising the
discretion whether or not condone unreasonable delay, the Court may
have regard to the conduct of a respondent in so far as it may have
contributed to the delay.'
[44] To the above, I
wish to add the following: the length of time that had passed
between the cause of action arising and the launching of the review
is not a decisive factor although no doubt important. The crucial
consideration is the extent to which passage of time - in view of
the nature of relief and the subject to which it relates -either
weakens or has no or little bearing on, the efficacy of the relief
sought. The less efficacious the relief sought or the more serious
the prejudice it causes on account of the delay, the stronger the
inference that the delay was unreasonable.
[45]
In the present case, approval for the building plans was granted in
March 2008. According to the applicant, she became aware of the
construction of a second dwelling in June of 2008 and asked her
lawyer to investigate. In July she asked the second respondent to
cease such building and directed a letter to the municipality asking
it to direct the second respondent to cease such building and to be
given copies of all the documents relating to the approval for the
construction by second respondent of two dwelling houses. The
municipality provided the same on 27th
of
August 2008. On 16th
October
2008 the founding papers were deposed and were launched on 22
October 2008. It is on these facts that I must decide whether there
was unreasonable delay.
[46] It is true that the
municipality knew as early as June 2008 that the applicant was
dissatisfied with the manner in which approval was granted to second
respondent for the construction of the dwelling house on erf 95
Langstrand. The second respondent was aware that the applicant took
exception to its construction of a second dwelling house on erf 95
Langstrand and demanded that the building activity cease. Although
the relevant documents dealing with the impugned building plan
approval were requested by the applicant on 30 July 2008, the
municipality took close to a month (27 August 2008) to provide it.
[47] It was quite
reasonable for the applicant to first seek to establish just what
was going on before engaging in litigation, especially on an urgent
basis when she, on 17 June 2008, became aware of the construction.
It was also reasonable and necessary for her to demand from the
respondent that the construction cease. The letter (which was not
copied to the second respondent) stated the following:
"1. Our client is
the registered owner of erf 423, Longbeach, and Walvis Bay,
previously known as erf 87 and 88 Longbeach, Walvis Bay;
2. Building activities
recently commenced in front of our client's property on erf 95,
Longbeach, and Walvis Bay;
3.
The building
activities on erf 95,
Longbeach, and Walvis Bay
indicate that two residential units are in the process of being
erected on the said erf;
4. Erf 95, Longbeach is
a single residential zoned property with a density of 1:300;
5.
Erf 95, Longbeach is less than 600m2;
and
6.
Our client objects to the construction of two residential units on
erf 95, because it is
clearly not in accordance with the provisions of the Walvis Bay Town
Planning scheme
in
so far as it does not comply with the density zoning applicable to
the said property.
In
the light of the above our client has instructed us to demand from
you, which we hereby do, that your good office instructs the owner
of erf 95 Longbeach Walvis Bay to immediately cease with the
construction of the second dwelling on the said property and to let
us have your written confirmation of such instruction and compliance
therewith by the owner, within 7 days hereof, failing
which, we hold instructions to bring and urgent application in the
High Court of Namibia for a mandamus against your Council to force
your Council to properly enforce its town planning scheme, as well
as an interdict to have the building activities stopped.
We also at this stage
apply for copies of the following documents, the cost of which our
client tenders to pay:
a.
Written
confirmation that the said erf 95 is zoned single residential with a
density
zoning of 1:300;
b.
A
copy of the special consent application to your Council by the owner
erf 95 for the
erection of a second dwelling on the single
residential property;
c.
A
copy of your Council's resolution granting this application for
special consent; and
d.
Copies
of the two advertisements placed in the local newspapers advertising
the fact
that special consent will be applied for." (My
underlining for emphasis)
[48] The following is
clear from the above letter: That the applicant knew two residential
units were being constructed on erf 95 contrary to the TPS; that
remedial steps were required within 7 days failing which urgent
interdictory relief and a mandamus were contemplated.
[49] The municipality
replied to the letter of 17 June 2008 on 30 June 2008 in the
following terms:
'Herewith are the
responses to your abovementioned letter:
a)
Erf
95 Langstrand is zoned as "Single Residential" with the
density zoning of 1 per
300m2,
b)
A
Building Permit for the development of a dwelling house
(comprising
of a main dwelling and a second dwelling) on erf 95 Langstrand was
issued on 30 May 2005 and renewed on 18 March 2008. The original
approval was based on the then interpretation of the Walvis Bay Town
Planning Scheme, which defines a dwelling house as "a main
house ... and/or an outbuilding ... and/or a second dwelling..."
The
owner of erf 95 Langstrand was not required to apply for consent,
as "dwelling houses" are primary rights on "Single
Residential zoned erven.
The
adjacent neighbours, the owners of erven 94 and 96 Langstrand, gave
consent for the relaxation of the building line.
e)
Based on various discussions with the Ministry of Regional and Local
Government, Housing and Rural Development, the Council has been
advised that:
i)
all
"Single Residential" erven, where building plans, for the
development of two dwellings on one erf have been approved, should
be rezoned from "Single Residential" to "General
Residential 1" (with relevant densities);
and
ii)
as
from 20 September 2005, a moratorium be placed on the approval of
new building plans for the development of two (or more) dwellings on
a "Single Residential" zoned property
f)
In view of the above, the rezoning of erf 95 Langstrand to "General
Residential 1" with the density zoning of 1 per I50m2
was
approved by the Council and forms part of Walvis Bay Amendment
Scheme No 20, which has been submitted to the Ministry of Regional
and Local Government, Housing and Rural Development
g)
Walvis Bay Amendment Scheme No 20 was advertised in the press and
one objection was received from your client (owner of erf 423
Langstrand). The objection
letter
has been forwarded to the Ministry of Regional and Local Government,
Housing and Rural Development for consideration. h) The rezoning and
recommended density of erf 95 Langstrand (and other Langstrand
erven) is in accordance with the Walvis Bay Residential Density
Policy.
Based
on the above, the
Council is not in position to instruct the developer to cease
building constructions on erf 95 Langstrand.
In case of any queries,
or the need for clarification, please do not hesitate to contact the
Town Planning Section.' (My underlining for emphasis)
[50] The letter does, in
my view, provide both the factual background and the legal basis (as
the municipality saw it) on which the construction work on erf 95
was taking place - the very construction work that irked the
applicant and which she was determined to have stopped by means of
urgent relief. What is clear in particular is the following: the
municipality granted building plan approval to the second respondent
in respect of erf 95 that involved the construction of two dwellings
initially on 30 May 2005 and renewed it on 18 March 2008. It is also
clear that no 'special consent' was granted for the construction of
the second dwelling and that the municipality took the view that it
was not required. These facts form the core basis for the present
review application, except for the grounds founded on the technical
violations.
[51]
No urgent interdictory relief was sought by the applicant upon
receipt of this rather detailed letter setting out, as I said, the
factual and legal bases for the construction work taking place on
erf 95. If the applicant needed more information before doing so,
her founding papers do not say what information and why. What the
applicant also does
not
spell out in the founding papers is what state of progress the
construction work on erf 95 had reached at this stage. The papers
are also silent on whether the second respondent was aware of the
exchange of letters between the first respondent and the applicant
at this stage. What we do know is that on 6 July 2008 the applicant
demanded from the second respondent to cease the construction work
and to give a written undertaking within 7 days.
[52] The letter reads as
follows:
"It is our
instructions that:
1. Our client is the
registered owner of erf 423, Langstrand, Walvis Bay ("our
client's property");
2. You are the
registered owner of erf 95, Langstrand, Walvisbay ;
3. Erf 95, Langstrand
Walvis Bay abuts our clients property on the western border of our
client's property; and
4.
You
are in the process of constructing two residential dwellings on erf
95, Langstrand, and Walvis Bay.
The
second dwelling erected on your property is illegal insofar as it is
in conflict with the definition clause of "dwelling house"
of the Walvis Bay Town Planning Scheme
and
is furthermore also in conflict with clause 12.3 and table C of the
same town planning scheme.
We
have therefore been instructed to demand from you, which we hereby
do, that you immediately cease with the construction of the second
dwelling and provide us with a written undertaking to that effect,
within
7 days hereof, failing which we hold instructions to proceed with an
application to the High Court of Namibia for an interdict to prevent
you from completing the second dwelling
and
to interdict you to remove the second dwelling.
We must advise that if
you elect to proceed with the construction of the second dwelling on
your property you will do so at your own risk." (My underlining
for emphasis)
[53] On 14 July 2008,
the applicant received a reply and it was clear therefrom, not only
that the construction work would not cease, but that the second
respondent saw nothing legally wrong with the construction work on
erf 95. The terse letter states:
'Refer to your letter DD
6 July 2008. (Hand delivered to the building contractor on 8 July
2008.)
1. I am the registered
owner of erf 95 Langstrand, Walvis Bay.
2. Walvis Bay
Municipality and the Board approved my building plans and as from
the beginning of this project, no objections have been raised. It
would be sufficed to take the matter up with the Municipality of
Walvis Bay.
3.
Furthermore, the
construction will go ahead as planned."
(my underlining for emphasis)
[54] It is common cause
that even at this stage the applicant did not seek any interdictory
relief on an urgent basis but instead, some 16 days after the second
respondent's reply and 30 days after the letter of the first
respondent, asked for information from the first respondent about
the construction work on erf 95. The applicant's papers are again
silent on what state of progress the construction work on erf 95 had
reached on 30 July 2008 when she caused to be written this letter
asking for information. The letter did not set any deadline by which
the municipality should provide the information asked for. In view
of the second respondent's attitude as reflected in the letter of 14
July 2008, it is reasonable to assume that even as at 30 June 2008
and beyond, the construction work had not ceased on erf 95. The
applicant is silent on what she did between 30 June 2008 and 27
August 2008 - the latter being the date on which she received the
information from the first respondent asked for in her letter of 30
July 2008. What is clear is that she did not, although entitled to,
seek any urgent interdictory relief to arrest the progress of the
construction work on erf 95.
[55] Although the first
respondent took close to a month to provide the applicant with the
information she asked for, the question remains: was it necessary
and reasonable for her to wait as long as she did to bring the
review application and what militated against seeking urgent relief
based on the facts that were known to her as demonstrated in her
letters of demand and at the latest after she got a full explanation
from the municipality on 30 June 2008? Between 30 June 2008 and the
date of the launching of the application, I cannot find any factual
basis for the conclusion that the municipality and or the second
respondent did anything that frustrated the applicant in seeking
urgent relief to arrest the construction taking place on erf 95.
[56]
An inference of unreasonable delay may be drawn from a failure to
take appropriate steps to seek urgent relief to maintain the status
quo when that is not only possible but also the most effective
remedy. It is a common practice in this Court for a party who feels
aggrieved by administrative decision-making and desires immediate
relief to protect its 'immediate
interest' (safcor infra)
while intending to have such decisionmaking reviewed and set
aside - to seek an urgent interdict pendent
lite.
In the present case, the moment that happened, the applicant would
have been provided with the record of the proceedings from which the
additional grounds on which she relies would have been obvious. On
the facts before me, review relief, coupled with a declaratory
relief (which is a discretionary remedy)
are meaningless unless the ultimate objective is the demolition of
the physical structure which the applicant maintains was built in
breach of the municipality's TPS. The applicant's failure to seek
urgent interdictory relief has created a certain reality: the
buildings have been completed.
[57]
No doubt if what I am here concerned with merely related to whether
or not demolition relief should be granted, the fact that the second
respondent was warned that he carried on further construction work
at own risk was going to be a very important consideration - perhaps
decisive. The issue is however broader than demolition relief and
extends to whether or not the building plan approval by the
municipality should be reviewed and set aside. That issue
ineluctably involves consideration of whether there was reasonable
delay in bringing the review application. Considering that the
applicant was alive to the need for urgent interdictory relief
against the second respondent and further urgent relief for a
mandamus
against
the first respondent to enforce the TPS, her failure to say even as
much as a word in the founding papers why such action was not
pursued to protect her 'immediate interests' when it became quite
apparent on 30 June 2008 (in the case of the first respondent) and
14 July (in the case of the second respondent) that the construction
work would not cease, is a factor that counts against the applicant
in light of the allegations of unreasonable delay.
[58] In dealing with the
applicant's assertion that she had first to consult with lawyers as
the matter was complex, Mr Cohrsen for the first respondent argues
that the municipality's letter of 30 June 2008 told the applicant
all she needed to go to Court. He further submitted that there is no
explanation whatsoever by the applicant of the steps she took since
the attitude of the municipality and second respondents became clear
and why it took her 4 months to bring the review application since
she became aware ofthe construction on erf 95. I must agree. The
application lodged in October 2008 is essentialy, excepting the
grounds based on the coverage restrictions, setback provisions and
plurality of storeys, a restatement of the issues raised by the
applicant in her letters to the municipality and second respondent
of 17 June 2008 and 7 July 2008, respectively. That being the case,
she has failed to demonstrate that it was reasonable and necessary
on her part not to seek urgent relief when that was possible and was
in fact contemplated by her and, in the circumstances, constituted
the most effective remedy to protect her 'immediate interests'. She
has also failed to demonstrate the specific steps she had to take
between 30 June 2008 - when she received the municipality's
unequivocal reply - and the date she launched the application. In
addition, she failed to demonstrate that those steps were reasonable
and necessary in the circumstances, if one has regard to the fact
that it is based, substantially, on the same grounds set out in her
letter of 16 June 2008.
[59]
As I earlier stated, when unreasonable delay becomes an issue in a
review application, the applicant must show that the steps taken in
furtherance of the litigation which delayed the bringing of the
application were reasonable and necessary. I am satisfied that as at
30 June 2008 the applicant had all the information she needed to
seek urgent relief in the terms threatened in her letter of 16 June
2008 or to file a review application at once, subject to her right
to amplify in terms of Rule 53(4) and in any event in that way have
required the first respondent to produce the record that would have
disclosed the basis for the 18 March 2008 approval of the
construction on erf 95. Similar considerations applied in the Kruger
case supra, at 176E-G:
'From the time he
received his final opinion it still took him nearly four months
before bringing his application. There is nothing on record to
suggest he was still labouring under financial constraints. Here it
must be borne in mind that, in essence, appellant's final case was a
repeat of what his attorney already mentioned in his correspondence
at the end of 1992. Furthermore, any relevant documents could be
obtained by launching of the review in which case the provisions of
Rule 53 of the High Court Rules would have compelled first
respondent to furnish the records of proceedings and the same rule
would have allowed appellant to amend his grounds of review, would
he have so wished, after receipt of the said copies'.
[60]
I have next to consider if I should grant condonation: The critical
factor that militates against the granting of condonation is the
efficacy at this stage of the declarator and the review relief,
considering that the second dwelling complained about had already
been completed because no urgent relief was sought suspending it;
and the applicant's concession that the demolition relief not be
granted subject to the court referring the matter back for
'regularization'
-
the exact scope of which is not defined. Granting a declarator and
review relief has become of mere academic interest
at this stage in the way the litigation has evolved: Just how
regularization would take place in respect of a completed building -
giving full effect to the applicant's right of objection - is a
mystery.
[61] The applicant
concedes
that demolition is a discretionary remedy and in fact asks that the
Court refer the matter back to the first respondent for
'regularization' subject to the applicant's right to object. Had
urgent interdictory relief been sought and obtained at the time that
the buildings on erf 95 were in the beginning stage, demolition
would at this stage have been a very viable remedy. Should the first
respondent's 'regularization' (after referral) not be to the
applicant's satisfaction, what happens? The position we are at now -
created by the applicant's inaction at the appropriate moment -
therefore creates an unacceptable measure of uncertainty and does
violence to the need for finality of the municipality's decision-
making - and therein lies the rationale against granting condonation
for the unreasonable delay.
[62]
I do not think it is feasible that the council will approach the
matter afresh in an unbiased manner as one would expect if there was
no completed building in respect of which it labors under the
apprehension of a litigious risk if demolition occurs. In oral
argument, Mr Rosenberg devoted considerable amount of time making
the point that the demolition relief was directed at the second
respondent - and ought to have been treated as a separate issue from
the issue of the review relief which properly affected the first
respondent - but that the municipality's unreasonably persisted that
the two be treated together. He maintained that had the municipality
steered clear of the demolition issue that
would
have enabled it to reconsider the building plan approval afresh if
referred back, without being accused of bias.
[63] In the way the
matter has now crystallized, Mr Rosenberg expects of the Court to
order the very thing that opens the municipality to the allegation
that, because of its predisposition clearly expressed in the papers,
it failed to exercise its powers properly. On 12 October 2009 Mr
Rosenberg had argued, in an attempt to make the case for the
separation of the review issue from demolition that this case is
really about the review relief. What he of course did not mention -
but is obvious from the way in which theapplicant has litigated - is
that in view of the reality on the ground, the demolition relief has
since become academic.
[64] Although the
applicant now agrees to the matter being referred back for
reconsideration of the building plan approval, it is not lost on me
that in the replying papers the applicant states the following:
'Mr
Louw accepts the contravention of the three meter building setback
provision pointed out by me in my founding papers. The effect
thereof is that the plans were unlawful and should not have been
approved. It is no answer for Mr Louw to assert that the Second
respondent has now been instructed
to demolish the encroachment or to submit revised plans.' (My
emphasis)
[65] One would have
thought referral back to the first respondent involves precisely
that. Although the argument can be made that this allegation was
made before the acceptance that the matter be referred back to the
municipality's for reconsideration, it raises the real likelihood
that serious disputes are imminent over just what would be the
process involved in the reconsideration and how they are to be
resolved should they arise.
[66] Accordingly, in the
exercise of my discretion I refuse to condone the unreasonable delay
in the launching of the application for the review and setting aside
of the decision taken by the municipality's on 18 March 2008 to
grant building plan approval for the erection of two dwelling houses
on erf 95.
[67] At the first
opportunity that Mr. Rosenberg met me in Chambers to introduce
himself, I cautioned him that there is a Practice Directive in this
jurisdiction
which requires that every effort must be made to research and refer
the Court to applicable Namibian authorities. Regrettably, that
warning was not heeded. As this judgment shows, on the important
issue on which this application falls to be decided, there are
important Namibian decisions - including that of the Supreme Court -
to which no reference at all is made in the applicant's Heads of
Argument. That calls for censure: foreign counsel who appear in the
High Court must take note that the Practice Directives of this Court
are just as applicable to them as they are to local counsel.
COSTS
[68] As regards costs,
two issues arise: the first is the wasted costs occasioned by the
postponement on 12 October 2009, and, secondly, the costs following
upon the dismissal of the application for review.
[69] On 12 October 2009,
by agreement between the parties, I made an order in the following
terms:
1. The fourth respondent
is joined as a party in the proceedings.
2. The matter is
postponed to 6, 7 and 8 April 2010 for argument.
3. Wasted costs of both
the main application and the joinder application to stand over for
later determination.
4. The applicant to file
a further affidavit within 10 days from today dealing with the
introduction of the fourth respondent; the respondents to file
further affidavits within 20 days of such further affidavit; the
applicant to file replying affidavit to any such further answering
affidavits within 10 days of them being filed.
5. That the matter is
postponed to 6, 7 and 8 April 2010 for argument.'
[70]
Before that, a rather lively debate had taken place whether or not
there should be separation of issues so that only the review relief
was considered and that argument on the demolition relief stands
over for later determination. The applicant proposed that the review
relief be heard on 12th
of
October 2009. The joinder of the fourth respondent was also an issue
on that date. Such joinder was opposed by the first respondent
although the applicant, the second and fourth respondent, agreed to
joinder being effected on the basis that the demolition relief not
be moved on 12th
October
2009 and that second and fourth respondent would abide the review.
Mr Rosenberg pointed out that if the review failed the declaratory
relief would fall away. He stressed that the case was really all
about the review relief. Mr Cohrsen for the first respondent opposed
the separation of issues as no substantive application therefor was
filed in terms of Rule 33(4) and that the separation issue was
improperly being rolled together with the joinder of the fourth
respondent; and that the first respondent had only one day's notice
of the intended separation and joinder. The first respondent also
vehemently denies that the demolition order did not concern it and
maintains that its prejudice lies in the fact that if demolition
were granted it ran a litigious risk by the second respondent.
[71] It is clearly
established in the first respondent's papers in opposition to the
application for the joinder of the fourth respondent that the
applicant was informed on 22 September 2009 by the municipality that
on 14 July 2009, erf 95 was registered in the name of BV Investments
605 CC, the fourth respondent. The first respondent then asked to be
informed if the applicant intended joining the fourth respondent.
This notwithstanding, no action was taken by the applicant to join
the fourth respondent. The second respondent in his answering
affidavit filed on 18 March 2009 had already stated that 'one unit
was sold to a willing buyer'. Again, this did not spur the applicant
into action and I find that surprising considering that at the end
of the day what she has in mind is demolition of the allegedly
offending structure which is not possible unless those affected
thereby are joined.
[72] In a letter dated 8
October 2009 - 3 days before the date the matter was set down for
hearing - the applicant caused to be recorded that 'a careful
perusal of Deed of Transfer T3724 of 14 July 2009 will reveal that
erf 95 is owned in undivided half shares by the second respondent
and BV Investments 605 CC'. Although that was not disclosed by the
second respondent to either the applicant or the first respondent,
it became very clear on 18 March 2009 that there was another party
directly affected by a decision the Court might make. As the first
respondent complains, the joinder application was brought by the
applicant on only one clear day's notice before the date the matter
was set down for hearing. As concerns the joinder of the fourth
respondent, the first respondent although not questioning the bona
fides of the purchase of erf 95 by the fourth respondent questions,
correctly in my view, why the fourth respondent did not apply to
intervene when it was clear that the applicant had not joined it.
Based on the above, the first respondent seeks a cost order against
the applicant, second and fourth respondents for its wasted costs
occasioned by the postponement on 12 October
2009.
[73] I am satisfied that
the actions and omissions of the applicant and second and fourth
respondents described above justify the costs order sought by the
first respondent. As for the dismissal of the application there is
no circumstance disclosed by the facts of the case why costs must
not follow the event. The first, second and fourth respondent have
successfully resisted the application and they are entitled to their
costs.
[74] Accordingly, I make
the following order:
(i)
The
application is dismissed.
(ii)
The
applicant, on the one hand, and the second and fourth respondents on
the other, jointly and severally - the one paying the other to be
absolved - are liable for the wasted costs of 12 October 2009 in
favour of the first respondent, including the costs of one
instructing and two instructed counsel;
(iii)
In
respect of the review application, the applicant is liable for the
costs of the first, second and fourth respondents, including the
costs of one instructing counsel and one instructed counsel in
respect of the second and fourth respondents and in respect of the
first respondent, the costs of one instructing counsel and two
instructed counsel.
DAMASEB, JP
Appearance
for the parties
COUNSEL
ON BEHALF OF THE APPLICANT: Mr.
SP Rosenberg SC,
Instructed
by: KINGHORN
ATTORNEYS
Correspondents:
KIRSTEN
& Co Inc, Windhoek
COUNSEL
ON BEHALF OF THE FIRST RESPONDENT: Mr.
RD Cohrssen, assisted
by D Obbes
Instructed
by: METCALFE
LEGAL PRACTITIONERS
Correspondents:
DU
PISANI LEGAL PRACTITIONERS,
Windhoek
ON
BEHALF OF THE SECOND RESPONDENT
AND
FOURTH RESPONDENT:
Mr.
C. MOSTERT
STEPHEN KENNY LEGAL
PRACTIONERS
Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others (A 310/08) [2011] NAHC 90 (24 March 2011);