CASE NO.: A 119/04

IN THE HIGH COURT OF NAMIBIA

In the matter between

THE MUNICIPALITY OF WALVIS BAY
APPLICANT

and

THE RESPONDENTS SET OUT IN ANNEXURE

“A” HERETO BEING THE OCCUPIERS OF THE

CARAVAN SITES AT THE LONG BEACH CARAVAN

PARK, WALVIS BAY, REPUBLIC OF
NAMIBIA RESPONDENTS

CORAM: HANNAH, J

HEARD ON: 12/04/2005

DELIVERED ON: 20/06/2005

JUDGMENT

HANNAH, J.: In this application the
applicant primarily seeks declaratory relief relating to the
lawfulness and enforceability of individual, but substantively
identical, lease agreements concluded in 1993 and 1994 by the Council
of the Municipality of Walvis Bay and the fifty one respondents in
respect of caravan sites at the Long Beach Caravan Park in Walvis
Bay.

Amongst
the several points of opposition raised by the respondents

is the question of the applicant’s locus
standi to bring the application and the authority of the
Chief Executive Officer of Walvis Bay to institute the proceedings.
At the outset of the hearing counsel for the respondents submitted
that it would be convenient if the Court were to determine these two
points first together with an application by the Council of the
Municipality of Walvis Bay, (to which I shall refer as “the
Council”) to intervene in the main application. I upheld this
submission and argument was therefore limited to these matters.

The point relating to locus standi was
raised for the first time in the heads of argument of Mr Henning who
appeared on behalf of twenty respondents. It is unnecessary to
identify them. Mr Arendse, who appeared for the applicant and the
Council, submitted that the point should have been raised in the
answering affidavits so as to afford the applicant the opportunity to
deal with it in its replying affidavit. Mr Henning countered this
submission by contending that the respondents are entitled to argue
any legal point arising from the recited facts. In support of this
contention Mr Henning referred the Court to Allen v Van der Merwe
1942 WLD 39 where Solomon J. said the following at 47:

“My opinion is
that the petition might have omitted any mention of the applicant’s
legal contentions, and might have contented itself with a recital of
facts and the prayer that, on the facts so recited, the applicant was
entitled to cancel the contract. On such a petition Mr Vieyra would
have been entitled to argue any legal point which arose from the
recited facts. Because the petition has advanced two legal
contentions based on the facts, is Mr Vieyra confined to these and
debarred from raising a third? I think not.”

I respectfully agree with those observations.
Legal contentions need not be set out in evidence, whether oral or
written. And in my view, what applies to an applicant must also
apply to a respondent. Any party is entitled to make any oral legal
contention open to him on the facts as they appear on the affidavits.
See Simmons, N.O v Gilbert Hamer and Co. Ltd 1963 (1) SA 897
(N) at 903 D.

Mr Henning’s submission on the question of the
locus standi of the applicant, a submission supported by both
Mr Wepener and Mr Nel each of whom appeared for various other
respondents who oppose the relief sought, was that the applicant is a
non-existent entity. The starting point of Mr Henning’s argument
was section 1 of the Local Authorities Act, No 23 of 1992, as amended
by the Local Authorities Amendment Act, No 24 of 2000. The section,
as amended, provides that:

“ ‘municipality’
means a municipality declared as such under section 3(1) or deemed to
be so declared under section 3(5)(i)”.

Section 3(1) of the Act, as amended, provides
that:

“(1) Subject to
the provisions of this section, the Minister may from time to time by
notice in the Gazette establish any area specified in such notice as
the area of a local authority, and declare such area to be a
municipality, town or village under the name specified in such
notice.”

I
should mention, in passing, that the only changes made to the
subsection by the amending legislation was to substitute “Minister”
for “President” and “notice in the Gazette” for
“Proclamation”.

Mr
Henning contended that it is clear from the legislation just referred
to that a municipality is an area. Further confirmation of this is
provided, so the argument went, by section 2 of the Act which
provides that:

“For
purposes of local government as contemplated in Chapter 12 of the
Namibian Constitution, there shall be local authority councils in
respect of-

1. municipalities;

   
   

2. towns;

   
   

3. villages,

   
   

the areas of which are declared as
such under section 3 or deemed to have been so declared.”

Mr Henning submitted that a clear
distinction is made in the Act between a municipality, which is an
area, and the council of a municipality which is its governing body.
This he said, is in accordance with Article 102(3) of the
Constitution which provides that:

“(3) Every
organ of regional and local government shall have a Council as the
principal governing body, freely elected in accordance with this
Constitution and the Act of Parliament referred to in Sub-Article (1)
hereof, with an executive and administration which shall carry out
all lawful resolutions and policies of such Council, subject to this
Constitution and any other relevant laws.”

Turning again to the Local Authorities
Act, No 23 of 1992, section 6, as amended, provides that:

“(1) The affairs of-

1. a municipality shall be governed by a municipal council
   consisting of such number of members, but not less than seven and
   not more than fifteen, as may be determined and specified by the
   Minister in the notice establishing the municipality.”

   
   

3. A municipal council, town council and village council
   shall under its name be a juristic person.”

   
   

Again I should mention in passing that
subsection (3) was simply renumbered as such by the Local Authorities
Amendment Act, No 3 of 1997.

Mr Henning submitted that it must
follow from the foregoing that the application should have been
brought by the Council, not the applicant. The applicant is a place.
It is not a juristic person and has no locus standi.

The counter-argument of Mr Arendse
commenced with a reference to Article 102(1) and Article 111 of the
Constitution. Counsel submitted that in terms of these two Articles
primary recognition is given to local authorities and not to their
councils. Article 102(1) provides that:

“(1)For purposes
of regional and local government, Namibia shall be divided into
regional and local units, which shall consist of such region and
Local Authorities as may be determined and defined by Act of
Parliament.”

Article 111(1) provides that:

“(1) Local
Authorities shall be established in accordance with the provisions of
Article 102 hereof.”

To deal with counsel’s
argument, it is, of course, stating the obvious to say that you must
first have a local authority before you can have a council to govern
its affairs. But, in my view, that fact does not assist in
determining whether a local authority, such as a municipality, is a
legal personality with capacity to sue. Nor, in my view, does it
assist that the council of a municipality is inextricably linked to
its municipality and cannot exist separately. That still begs the
question whether a municipality is, per se, a
juristic person.

Mr Arendse further submitted that this
Court should have regard to substance, not form. The Council was at
all times informed of the application and supported it. The Council
has, so the submission went, in substance and effect, been part of
the application. This again, in my opinion, side-steps the real
question: which is does the Municipality of Walvis Bay have the
capacity to sue in that name?

I am prepared to agree with Mr
Arendse that Mr Henning went too far when he submitted that the
Municipality of Walvis Bay is a non-existent entity. The
Municipality of Walvis Bay exists as much as the cities of London and
New York exist. They all are places on the map of the world. But
does the Municipality of Walvis Bay exist as a legal personality with
capacity to sue? The answer to that question lies, in my view, in
the legislation which created local authorities as required by the
relevant Articles of the Constitution, namely the Local Authorities
Act, No 23 of 1992. That Act specifically provides that a municipal
council “shall under its name be a juristic person.” Had the
Legislature intended that a municipality should also be a juristic
person it would, in my view, have said so in express terms in the
same piece of legislation. It did not. I am therefore of the opinion
that a municipality has no capacity to sue as a municipality. The
applicant has no locus standi.

I should mention, simply as a matter of
interest, that this also appears to have been the view of the Council
itself. In a resolution made in 2001 it delegated to the Chief
Executive Officer authority for:

“Institution of legal action in
the normal course of business on behalf of Council.” (My
emphasis).

In view of the foregoing conclusion it
is unnecessary to address the argument which was directed to the
question of the authority of the Chief Executive Officer to bring the
application on behalf of the applicant. I can turn instead to the
application brought jointly by the applicant and the Council:

“Granting the COUNCIL OF THE
MUNICIPALITY OF WALVIS BAY (“the Council) permission to intervene,
and joining it as the second applicant in the main application under
the current case number (“the main application”) pursuant to Rule
12 of the Rules of Court.”

There is also an application to amend
the notice of motion in the main application for consequential
changes if such leave is granted. And there is a further application
for leave to file a further affidavit deposed to by the Chief
Executive Officer if leave is granted. This affidavit is described
as the affidavit in support of the application to intervene. If that
is the case then, insofar as the affidavit sets out facts or grounds
in support of the application to intervene, it is obviously
unnecessary to seek leave to file it. It is the founding or
supporting affidavit in that particular application.

The affidavit just mentioned is
in fact fairly uncontroversial. It annexes the minutes of a Council
meeting held on 22^nd February, 2005 at which various
resolutions were passed. Some of these pertain to the locus
standi of the applicant in the
main application and the authority of the Chief Executive Officer to
launch the application. I have already made my finding regarding
locus standi and I
therefore ignore this material. Then there is a resolution
confirming that while the Municipality of Walvis Bay was cited as
applicant in the main application it was “in fact and in law”
the Council which was before the Court. It was resolved that the
Chief Executive Officer be authorised to take all necessary steps for
the Council to intervene as a second applicant. Further, that the
Council:

“will adopt and confirm the
approach of the Municipality. The Council adopts the factual
allegations averred to by the Municipality. The Council will thus
not seek to file further papers in the application save for an
affidavit deposed to by the CEO indicating the Council’s approach
and attaching a copy of this resolution…”

The affidavit of the Chief
Executive Officer contains a certain amount of argumentative material
concerning the circumstances in which the locus standi
of the applicant was raised by some of the respondents. This no
longer has any relevance in view of my finding on the question of
locus standi. The
rest of the affidavit deals essentially with the Council’s standing
in the main application and why it should be joined as an applicant.

Mr Henning did not submit, nor in
my opinion could he have properly submitted, that the Council does
not have locus standi
as an applicant in the main application. Clearly it does. Mr
Henning’s opposition to the application to intervene was based on
his contention that it is impermissible to join a party to an
application in which the sole applicant is a non-existent entity. As
I understand it, the contention is that this would effectively bring
about a change of parties and that the circumstances set out in Rule
15, which deals with a change of parties, do not exist.

Mr Wepener and Mr Nel supported
Mr Henning’s opposition to the application to intervene and Mr
Wepener, in addition, submitted that the Court should refuse to grant
leave for the filing of the supplementary affidavit of the Chief
Executive Officer. His argument in this regard was brought about by
the curious manner in which the Council brought its application to
intervene. It brought its application jointly with the applicant and
the affidavit in support, deposed to by the Chief Executive Officer,
sets out certain matters which pertain to the locus standi
of the applicant rather than the interest of the Council in the
proceedings. As I have indicated, these matters can be ignored and,
when that is done, no question of seeking, or granting, leave arises.

The application to intervene is brought
in terms of Rule 12 which reads:

“12. Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant, and the court may upon such application make such order,
including any order as to costs, and give such directions as to
further procedure in the action as to it may seem meet.”

This rule is applied to applications by
virtue of Rule 6(14).

In order to ascertain whether a person
is entitled to join as an applicant in any application recourse must
be had to Rule 10, Subrule (1) of which provides:

“(1)
Any number of persons, each of whom has a claim, whether
jointly, jointly and severally, separately or in the alternative, may
join as plaintiffs in one action against the same defendant or
defendants against whom any one or more of such persons proposing to
join as plaintiffs would, if he or she brought a separate action, be
entitled to bring such action, provided that the right to relief of
the persons proposing the same question of law or fact which, if
separate actions were instituted, would arise on such action, and
provided that there may be a joinder conditionally upon the claim of
any other plaintiff failing.”

This subrule is couched in very wide
terms. It would, in my view, certainly cover the situation of the
Council joining with the applicant at the outset as a second
applicant in the main application either jointly and severally or in
the alternative or conditionally on the claim of the applicant
failing. In these circumstances I can see no objection to the
Council applying for leave to intervene in the main application and
for it to be joined as second applicant.

It may well be that as a result of this
conclusion there will be, on a practical level, a change or
substitution of parties. Again, I can see no objection to this.
Rule 15, which deals with change of parties, is concerned with a
change in the status of parties. That is not the position in the
present case. What the Council is intent upon in the present case is
to bring the correct party before the Court. What can possibly be
wrong with that? What possible unfair prejudice can the respondents
suffer?

The alternative, an alternative
suggested by Mr Henning, would be for the Court to dismiss the
present application and for the Council to institute a fresh
application on identical grounds and allege identical facts to those
in the present application. That, to my mind, is not the path which
leads to justice. That, in my view, is a path which would lead to a
mockery of the law. If this conclusion is in any way perceived to be
contrary to the Rules of Court the answer lies in the words of Van
Winsen AJA in Federated Trust Ltd v Botha 1978
(3) SA 645 (A) at 654 C-F. The Rules are not –

“an end in themselves to be
observed for their own sake. They are provided to secure the
inexpensive and expeditious completion of litigation before the
courts.”

In the result, I will grant the Council
leave to intervene and join as second applicant. But that is not an
end to the matter before me. Leave is also sought to amend the
notice of motion consequentially on leave being granted to the
Council to intervene and be joined as second applicant. That relief
is apparently opposed by certain respondents but I can see no proper
basis for such opposition. The relief sought flows logically from the
order which I propose to make.

Then there is the submission made by Mr
Wepener that the respondents should be granted the opportunity to
file further affidavits. Technically, Mr Wepener is correct. A new
party will be joined and insofar as that joinder results in a change
in the factual basis of the application the respondents must be given
an opportunity to answer. However, in the circumstances of the
present case I cannot envisage such a need. Nonetheless, I will give
the respondents that opportunity.

As for costs, the situation with
which I have had to deal was created by the applicant and the
Council. Had the proceedings been brought correctly in the first
place none of this would have arisen. I therefore propose to order
that the applicant and the Council pay the respondents’ costs of
the hearing of 12^th April, 2005 jointly and severally.

Accordingly, the following orders are
made:

1. The relief sought in paragraphs
   1,2 and 3 of the Notice of Motion filed on 9^th March,
   2005 is granted;

   
   

2. The first and second applicants
   are to pay the costs of the respondents incurred for the hearing on
   12^th April, 2005 jointly and severally such costs to
   include the costs of two instructed counsel.

   
   

3. Any further affidavits to be filed
   by the respondents must be filed within fourteen days from the date
   hereof.

   
   

……………………….

HANNAH, J

ON BEHALF OF THE APPLICANT:
ADV ARENDSE SC

ADV BORGSTRöM

INSTRUCTED BY: CONRADIE
& DAMASEB

ON BEHALF OF THE 1^st GROUP
OF

RESPONDENTS: ADV
HENNING, SC

ADV COETZEE, SC

INSTRUCTED BY: BEHRENS &
PFEIFFER

ON BEHALF OF THE 2^nd GROUP
OF

RESPONDENTS: ADV WEPENER, SC

INSTRUCTED BY ERASMUS
& ASSOCIATES

ON BEHALF OF THE 3^rd GROUP
OF

RESPONDENTS: MR T J NEL

INSTRUCTED BY: VAN
DER MERWE-GREEF INC

ON BEHALF OF THE 49^th
RESPONDENT ADV HENNING, SC ADV COETZEE

INSTRUCTED BY:
ETZOLD-DUVENHAGE LP