Grobbelaar and Another v Council of the Municipality of Walvis Bay and Others (PA 46 of 2004) [2004] NAHC 1 (16 April 2004);
CASE NO.:
( P) A 46/2004
SUMMARY
GROBBELAAR
AND ANOTHER V COUNCIL OF THE MUNICIPALITY OF WALVIS BAY AND OTHERS
Damaseb JP,
Silungwe J et van Niekerk J
Reasons
delivered: 11 November 2005
APPLICATION
FOR INTERIM RELIEF
CIVIL
PROCEDURE
Application
to strike – practice to strike out matter in replying affidavits
which should have appeared in founding affidavits, including facts to
establish locus standi – conclusion that applicant has locus
standi on alleged facts is matter of law – need not be alleged
in founding affidavit – open to party to argue any point of law
based on the factual allegations in papers without referring to those
points of law in papers themselves – municipal rate and tax payer
has locus standi to challenge municipal actions relating to
illegal actions by municipality in dealing with municipal funds and
property – there is relationship of trust, i.e. fiduciary
relationship between municipal council and ratepayers in respect of
municipal funds and property – therefore sufficient to allege in
founding affidavit that applicant is municipal tax and rate payer –
need not set out legal contention that as a result thereof applicant
has locus standi
LOCUS
STANDI IN JUDICIO
Municipal
tax and rate payer has standing to challenge illegal municipal
actions in dealing with municipal funds and property
NAMIBIAN
CONSTITUTION
Article
10 and 23 – land policy of Walvis Bay Municipality in terms of
which property auctions are held in manner favouring previously
disadvantaged Namibians, but excluding persons on basis of colour is
discriminatory and in violation of Article 10 – Parliament has
enacted no legislation under Article 23(2) to provide for
implementation of policies aimed at redressing imbalances arising out
of past discriminatory laws or practices – as such the land policy
is illegal
LOCAL
AUTHORITIES ACT, 23 OF 1992
Section
63(2)(a) as amended by Act 24 of 2000 – purpose of section is to
provide window period for interested persons to inspect full
particulars regarding sale and other details on immovable property to
be offered by sale at municipal auction – minimum sufficient period
to provide for such opportunity is seven days - failure to do so
gives applicant right to object to auction
Section
63(2)(b) – provides for procedures to be followed in case of
immovable property sales by private treaty – must be followed
before land may be sold – applicant may object to transactions
concluded without procedures of giving notice having been followed in
terms of section
Section
50 – provides for stringent procedures to be followed by local
authority before closure of public spaces – conditions of sale
which place onus on purchaser to do what local authority is supposed
to do by law amount to abdication of its duty under the law –
purchaser not entitled to take actions contemplated by sec 50 –
sale conditions requiring this would be requiring purchaser to do
what is legally impossible –– procedure must be followed before
public space is closed - purpose of section is to protect interest of
public and of owner or occupier of immovable property directly
opposite public space – purpose not served by offering public space
for sale before required procedure have been followed
CASE NO.:
(P) A 46/2004
IN THE
HIGH COURT OF NAMIBIA
In the
matter between:
WILLEM
GROBBELAAR 1ST
APPLICANT
HERMAN MARTIN GEORGE
DAVIN 2ND APPLICANT
and
THE COUNCIL OF THE
MUNICIPALITY
OF WALVIS BAY
1ST
RESPONDENT
THE MAYOR OF THE
MUNICIPAL
COUNCIL OF WALVIS
BAY 2ND RESPONDENT
THE CHAIRPERSON OF
THE
MANAGEMENT COMMITTEE
OF
THE MUNICIPAL
COUNCIL OF
WALVIS BAY
3RD
RESPONDENT
THE REGISTRAR OF
DEEDS OF
NAMIBIA N.O.
4TH
RESPONDENT
THE PURCHASER OF ANY
OF
ERVEN 954 to 1029;
1096 to 1100;
1115 to 1120 and
450, of Meersig,
Walvis Bay and Erf
161, Long Beach
(Langstrand), Walvis
Bay (inclusive
of all the aforesaid
numbers) OTHER RESPONDENTS
CORAM: Silungwe
J, Damaseb et Van Niekerk AJJ
Heard: 2004 March 25,
26, 29
Delivered: 2004 April
16
REASONS
VAN NIEKERK, J:
[ 1 ] An order was made in this matter on 16 April 2004 in the
following terms:
“1. The first applicant’s
non-compliance with the rules of this court is condoned and his
application for interim relief is heard on an urgent basis.
2. The second applicant’s
application for condonation for non- compliance with the rules is
dismissed and in respect of him the application for interim relief is
struck. The second applicant shall pay the first, second and third
respondents’ costs in relation to their opposition of his
application, which costs shall be limited to the costs of two
instructed counsel.
3. The first, second and third
respondent’s application to strike out portions of the first
applicant’s replying affidavit is dismissed with costs.
4. The first, second and third
respondents’ application for condonation for the late filing of
their answering affidavits is granted. There shall be no order as to
costs.
5. In respect of first
applicant’s application for interim relief, a rule nisi is
issued, pending the final outcome of the review proceedings
instituted in terms of part B of the Notice of Motion, calling upon
the respondents to show cause, if any, on or before 7 June 2004
at 10h00 am, or as soon thereafter as the application may be
heard, why an order in the following terms should not be granted:
5.1 Interdicting and restraining
first, second and third respondents to give or cause transfer of any
of erven 954 to 1029; 1096 to 1100; 1115 to 1120 and 450, all of
Meersig, Walvis Bay as well as erf 161 of “Long Beach”
(Langstrand), Walvis Bay (inclusive of all the aforesaid erf numbers)
from first respondent to any of the purchasers of those properties or
to any other third party;
5.2 Interdicting and restraining
fourth respondent from causing or giving transfer of any of the
aforesaid properties from first respondent to any other party;
5.3 Directing first, second and
third respondents not to give effect to any agreement or transaction
of sale to and in respect of any of the aforesaid properties;
5.4 Directing that the first,
second and third respondents jointly and severally shall pay the
costs of this application which shall include the costs of two
instructed counsel;
5.5 Directing that such other of
the respondents who may oppose the application shall pay the costs of
the application jointly and severally with first, second and third
respondents.
6. The order set out in
paragraphs 5.1, 5.2 and 5.3 shall operate as an interim order and
interdict with immediate effect, pending the outcome and finalization
of the review proceedings set out in part B of the Notice of Motion.”
[ 2 ] At the time it was indicated that reasons for the order
made would be provided. The reasons follow.
[ 3 ] The applicants brought an application on a semi-urgent basis
for a rule nisi pending the final outcome of review
proceedings instituted in relation to an auction of several erven
held on 19 December 2003 at Walvis Bay at the behest of the first,
second and third respondents. As can be seen from the order made, the
relief sought in this application was essentially for an interim
interdict pending the outcome and finalization of the main (review)
proceedings in which the applicants seek to have the auction set
aside. The interdict is sought to prevent transfer of certain erven
situated at Meersig, Walvis Bay and Erf 161, Langstrand, Walvis Bay
from first respondent to the purchasers of those properties or to any
other party. An order is also sought directing the first to third
respondents not to give effect to any agreement or transaction of
sale to and in respect of the said properties.
[ 4 ] It is convenient to deal with the matters raised before the
court in the following order:
Urgency;
Late filing of first, second and third respondents’ answering
affidavits;
Application to strike portions of first applicant’s reply;
Interim relief.
A. Urgency
[ 5 ] The first applicant alleges that there is a substantial degree
of urgency in this matter as the erven sold at and after the auction
are due to be transferred to the purchasers on 31 March 2004,
whereafter, for obvious reasons, countless complications would arise
if the transfers were to be set aside.
[ 6 ] First to third respondents take up the attitude that the matter
has not been properly brought as a matter of urgency for two reasons.
Firstly, they say, the first applicant was in a position to attack
the auction before it took place and should have done so. Secondly,
they say that when the application was finally brought, the urgency
was self induced.
[ 7 ] Dealing with the first reason advanced, the first to third
respondents alleged that the auction was held in accordance with a
so-called land policy adopted and implemented by the third respondent
since December 1998, as authorized by the first respondent, in
respect of the sale of erven. The policy provided that when
residential erven are offered for sale, this would be done in three
phases. The first two phases would take place by way of public
auction at which the first round of the auction would be open only to
previously disadvantaged Namibians and the second round to all
persons. Any erven not sold at the public auction would be offered
for sale by private treaty. First to third respondents alleged that
15 other auctions had previously been held before the auction of 19
December 2003 on this basis and that over 800 erven had been put up
for sale in this manner. They allege that the first applicant was
very well aware of this policy, considering that he was an estate
agent and property developer in Walvis Bay, that he was actively
involved in civic life in Walvis Bay and that he is well acquainted
with the affairs of first to third respondents. They alleged that he
could have and should have challenged the auction of 19 December when
he got notice of it as he would have been aware on what basis the
auction would be held.
[ 8 ] In response to these allegations the first applicant denies
that he had knowledge of the land policy and states that, even is he
were aware of it and failed to take action in respect of the other
auctions, his failure cannot be construed to be a waiver of his right
to challenge the auction of 19 December. In any event, he says, he
only became aware that the auction would be held in a racially
discriminating manner on the very day of the auction. There was no
time to stop the auction then. On the basis if these facts I agree
that the first applicant could not have taken action before the
auction took place.
[ 9 ] As far as the second ground of the first to third respondents’
objection is concerned, the following are the facts on which the
objection is to be assessed. The first applicant says that after the
auction he collected certain relevant information and documents from
Mr Van Zyl, an official in the employ of the Municipality of Walvis
Bay, which he obtained on or about 23 or 24 December 2003. He was
unable to obtain needed information regarding the publication of
notices of the auction, etc as the relevant offices, e.g. of the
newspapers were closed for the Christmas and New Year break. In the
first days of January 2004 he made telephonic enquiries at the Office
of the Ombudsman, but the latter was on holiday. He decided to
prepare a letter to the Ombudsman, which he completed on 13 January
2004 and then drove to Windhoek to hand deliver it a day or two
later. At that stage the Ombudsman was still on holiday. The letter
is annexed to the papers and sets out in detail the substance of the
essential objections to the auction which also forms the basis of the
application for review and the application for the interim relief
lodged in this court. The first applicant refers to the relevant
legislation and incorporates several relevant annexures to the
letter. In the letter the applicant requests the Ombudsman to take
action as a matter of extreme urgency and to investigate the
Municipality of Walvis Bay’s disregard of the Constitution and the
Local Authorities Act. He requests that the auction and the sale of
the erven be declared null and void.
[ 10 ] At the time the first applicant’s legal representative of
the previous 10 years was still on holiday until 19 January 2004. On
about that date the first applicant consulted his lawyer, who advised
him to wait for the Ombudsman’s reply. A few days later the first
applicant made telephonic enquiries at the Ombudsman’s office and
was informed that a letter was on its way to him, but that the
Ombudsman’s office would not be able to take action in the matter
on his behalf. This the first applicant immediately communicated to
his lawyer, who on 29 January 2004 addressed an urgent letter to the
first respondent alerting it to the grounds on which the first
applicant based his objections to the auction, requesting certain
information regarding the purchasers of the erven and to request an
undertaking within 5 days that the first respondent would, of its own
accord, not be proceeding with the transfers of the erven. In this
letter the first respondent was also alerted to the fact that the
first applicant was contemplating an urgent application to this
Court. First respondent required the first applicant to provide
further information before responding to the substance of his letter.
It should be pointed out that some of this information was already
available to the first respondent, e.g. the relevant legal provisions
and their requirements. Further correspondence was exchanged, but on
16 February 2004 it was clear to the first applicant that all was in
vain and he lodged the application together with the review
application and an application for substituted service on 18 February
2004.
[ 11 ] In the meantime, the first applicant had received the
Ombudsman’s response dated 20 January 2004 by normal post only on
12 February 2004 and immediately telefaxed it to his attorney. In the
letter the Ombudsman states, inter alia:
“2. In your letter, you allude
to the fact that the actions of the municipality may be
discriminatory against the people of Walvis Bay, and presumably,
yourself. Thus, that a fundamental right of freedom guaranteed by the
Namibian Constitution has been infringed or threatened. In this
regard, the Constitution states in Article 25(2) that ‘Aggrieved
persons who claim that a fundamental right or freedom guaranteed by
this Constitution has been infringed or threatened shall be entitled
to approach a competent Court to enforce or protect such a right or
freedom and may approach the Ombudsman to provide them with such
legal assistance or advice as they require, and the Ombudsman shall
have the discretion in response thereto to provide such legal or
other assistance as he or she may consider expedient.’ ”.
[ 12 ] The Ombudsman further stated that as the first applicant
appeared to be financially able to approach a competent Court for
relief rather than to seek redress from the Ombudsman and advised the
first applicant to instruct his lawyer to institute legal proceedings
against the Municipality of Walvis Bay should he wish to pursue the
matter further.
[ 13 ] Bearing in mind that the Christmas and New Year break impeded
his ability to make progress, the first applicant in my view took
reasonably prompt action in all the circumstances to protect his
rights. He promptly took steps to collect the relevant documents and
information after the auction. He promptly made telephonic enquiries
to the office of the Ombudsman in the New Year. Knowing that the
Ombudsman and his lawyer were still on holiday, he went ahead on his
own steam, it seems, and addressed the letter of 13 January 2004 to
the former. When he delivered it the Ombudsman was still on leave.
[ 14 ] In view of the duties of the Ombudsman as envisaged in Article
91 of the Constitution to investigate complaints regarding instances
of alleged or apparent violations of fundamental rights and freedoms
and to take certain actions to deal with such violations, I agree
with the submission made by first applicant that he was entitled to
approach the Ombudsman first for assistance and advice.
[ 15 ] The first applicant contacted his lawyer as soon as he had
returned from holiday. He followed up his letter to the Ombudsman by
making enquiries. When he was informed of the stance of the
Ombudsman, he did not wait for the letter to arrive, but instructed
his lawyer to pursue the course of trying to obtain an undertaking
from the first respondent not to proceed with the transfers. I agree
that he was entitled to exhaust alternative remedies and should in
fact have done so. In my view the urgency was not self-induced. I
further bear in mind that the date of 31 March 2004 set by the
respondents for the intended transfers meant that urgent relief would
in any event be required to stop the transfers from taking place.
[ 16 ] The first to third respondents pointed out that the second
applicant set out no grounds for urgent relief in his papers. The
grounds set out by the first applicant do not cover his situation.
The furthest he takes it is stating at the end of his affidavit that
he has read the founding affidavit of the first applicant and that he
verifies and confirms, inter alia, the factual and legal
grounds for the relief as set out in the affidavit both in respect of
the interim as well as the final relief. In my view this is not
sufficient in the circumstances of this case where the factual
allegations on which the first applicant relies do not refer to or
have any bearing on the second applicant. I have considered allowing
him to proceed, as it were, on the back of the first applicant.
However, I have decided that this would amount to an abuse of the
rules of this court. In my view his application for condonation for
non-compliance with the rules should be dismissed and therefore the
application for interim relief in respect of the second applicant
must be struck. (In as much as the first applicant relies on the
second applicant’s papers in support for his application, regard
may be had to them.) As a result, I am of the view that the second
applicant should pay the costs of the first, second and third
respondents in relation to their opposition of his application for
condonation and interim relief. In my view the nature of the
application before us does not require that three counsel be
instructed, as first to third respondents have done, and therefore
the costs are limited to the costs of two instructed counsel.
B. Late filing of first, second and third respondents’ answering
affidavits
[ 17 ] The applicants required in their notice of motion that the
respondents file their answering affidavits by 14h30 on 11 March
2004. First, second and third respondents did not comply, but filed
their answering papers a week later on 18 March 2004. They apply for
condonation for the late filing relying on the following facts:
1. That the matter justified the instruction of leading counsel due
to its importance to respondents, especially given the fact that it
may influence that status of properties purchased at some 15 other
auctions held since 1999.
2. That leading counsel briefed in the matter was unavailable to
attend to settling the papers until 15 March 2004. The reasons for
counsel’s unavailability are fully set out in the application for
condonation.
3. That the offices of the respondents are situated at Walvis Bay,
whereas respondents’ legal practitioner is based in Windhoek and
was required to travel to Walvis Bay on several occasions.
4. The papers in possession of respondents which have a bearing on
this matter are particularly voluminous, especially given the nature
and potential impact of the relief sought by applicants in the
proceedings.
5. Instructing counsel for first, second and third respondents took
the answering papers to Walvis Bay for signature and attestation and
returned with the papers on the evening of 17 March 2004, where after
the affidavits were filed on the morning of 18 March 2004.
[ 18 ] The applicants opposed the application for condonation and
requested the Court to dismiss it and to hear it on an unopposed
basis. They pointed out that the respondents had fifteen court days
to prepare and file their papers and that no objection was made at
any stage to the time limits set by the applicants. It was pointed
out that the answering papers were filed just before the advent of a
long week-end which caused the applicants great inconvenience and
costs in having to prepare and file their replying papers and heads
of argument in time for the hearing on 25 March 2004. Applicants also
pointed out that the application for condonation was only filed on 19
March 2004 and that the answering papers contained untranslated
material in Afrikaans. This was rectified by the filing of sworn
translations prepared over the long week-end.
[ 19 ] The applicants took issue with the reason put forward by the
respondents, namely that their leading counsel was not available in
time, submitting that there was no allegation made by respondents
that no other counsel was available, or that the specific counsel was
required because of his special expertise in the issues raised.
Applicants submitted that any number of local counsel could have
dealt with the matter and if not, counsel from outside Namibia could
have been instructed.
[ 20 ] Mr Olivier who, with Mr Tötemeyer
appeared for applicants, referred the court to the cases of Pretorius
v Die Drankraad en ‘n Ander 1987 (2) SA 261 (NKA) at 262I-J;
Duncan v Roets 1949 (1) SA 226 (TPD) and D’Anos v Heylon
Court (Pty) Ltd 1950 (2) SA 40 (CPD) in which it was repeatedly
decided that unavailability of specific counsel is not a ground for
obtaining a postponement of matters which have been set down and
submitted that on the same basis condonation should be refused.
[ 21 ] First, second and third respondents referred to the matter of
United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717
(A) in which the following was said (at 720E-G):
“It is well settled that, in
considering applications for condonation, the Court has a discretion,
to be exercised judicially upon a consideration of all of the facts;
and that in essence it is a question of fairness to both sides. In
this enquiry, relevant considerations may include the degree of
non-compliance with the Rules, the explanation therefore, the
prospects of success on appeal, the importance of the case, the
respondent's interest in the finality of his judgment, the
convenience of the Court, and the avoidance of unnecessary delay in
the administration of justice. The list is not exhaustive.
These factors are not
individually decisive but are interrelated and must be weighed one
against the other; thus a slight delay and a good explanation may
help to compensate for prospects of success which are not strong.”
[ 22 ] This was stated in the context of an application for
condonation for the late filing of an appeal record and to provide
for security for costs. However, the principles as stated are of
general application.
[ 23 ] In the matter before us no postponement of the application was
sought because of the unavailability of specific counsel. Although
the late filing of the answering papers caused applicants to reply
and prepare for the hearing in haste and under pressure (which also
had its impact on the members of the court, who received voluminous
papers on short notice), the applicants were able to put their case
before Court and the matter could be heard. Although applicants were
inconvenienced, and perhaps considerably so, in my view they were not
prejudiced in their case. On the other hands, the prejudice to be
suffered by the respondents if their answering papers are ignored, as
Mr Olivier suggested should be done, is clearly considerable.
[ 24 ] I further bear in mind that litigants do not have an extremely
wide choice of counsel in Namibia with experience and expertise to
appear on an urgent basis in complex and serious matters and that
their preference to brief local counsel is reasonable. It seems to
me, in the circumstances of this case, that the respondents have
furnished a reasonable and acceptable explanation for the delay.
Bearing all the relevant factors in mind, my view is that the
respondents have shown good cause for their non-compliance with the
time limits set by the applicants and their application for
condonation is granted. Mr Smuts submitted that there should
be no order as to costs. I agree.
C. The application to strike out portions of first applicant’s
replying affidavit
[ 25 ] The first, second and third respondents applied for the
striking out of certain portions of the first applicant’s replying
affidavit on the grounds that these portions contain impermissible
new matter raised in reply. Both portions relate to allegations made
by the first applicant regarding his locus standi to bring the
application for the interim relief. The offending portions are
contained in the second sentence of paragraph 28.2 and in the third
sentence of paragraph 44.1 of the replying affidavit.
[ 26 ] In order to assess the respondents’ objection to the
relevant portions, first applicant’s founding affidavit and the
respondents’ answering affidavit must also be considered.
[ 27 ] In the first applicant’s founding affidavit he states in
paragraph 1.1:
“I am the first applicant in
this matter and an adult male businessman and property developer
residing at 56 Hofmeyer Road, WALVIS BAY. I have been so resident at
Walvis Bay for the past 46 years and I am also a municipal tax and
rate payer for the Municipality of Walvis Bay.”
[ 28 ] In paragraph 15 of the answering affidavit of Mr Katiti on
behalf of the first, second and third respondents, these allegations
are merely “noted”.
[ 29 ] Paragraphs 28.1 and 28.2 of the first applicant’s affidavit
reads as follows [the sentence sought to be struck is underlined]:
“28.1 I note with interest
first respondent’s allegation that it is in its best interest to
obtain the best possible price for the properties in question. I
essentially agree with this. This is indeed the purpose of a public
auction, namely to sell a property to the highest possible bidder;
28.2 Respondents’ conduct by
excluding certain categories persons from the said auction (including
myself), indeed served to limit the number of eligible purchasers and
defeated the aforesaid object. For this reason alone – and due
to the fact that it is undisputed that I am a resident and municipal
tax and rate payer of the Municipality of Walvis Bay – do I have
locus standi to bring this application. The aforegoing is
quite apart from the fact that I intended to bid at the said auction
and was unlawfully precluded from doing so;”
[ 30 ] These paragraphs form part of the reply to the following
paragraph in Mr Katiti’s answering affidavit (I only quote the
relevant part):
“20.3 I record that it is
obviously in the best interests of the first respondent’s financial
affairs that the best possible prices are obtained for the properties
in question and that wide publication of the auctions is in the first
respondent’s interests. Furthermore all properties were properly
valued for the purposes of determining reserve prices. ……………………….”
[ 31 ] Paragraph 44.1 of the first applicant’s replying affidavit
reads [the sentence sought to be struck is underlined]:
“44.1 I deny that the issue
raised has any relevance to this matter. I respectfully submit that
even if I was only interested in purchasing one erf, I would have
locus standi to challenge the said auction in its entirety. I
also submit that even if I was not interested to attend, or purchase
property at the said auction at all, I would still have locus
standi to challenge the said auction by virtue of the fact that I
am a resident and municipal rate and tax payer of Walvis Bay with a
direct and substantial interest in the municipality’s finances.
I refer to what is stated above. This issue will be further referred
to during argument if need be;”
[ 32 ] This paragraph constitutes the first applicant’s reply to
paragraph 22.2 of Mr Katiti’s affidavit, which is set out here in
context:
“22.
Ad paragraph 16
I note that the applicants
request this court to grant them the interdictory relief contained in
Part A of the notice of motion, in respect of all of the
properties. I respectfully submit that, at best for the applicants,
they would certainly not be entitled to this relief. I am advised and
submit that the interdictory relief prayed for and on their own
versions amounts to an abuse of the process of this court for the
following reasons:
The first applicant’s lack
of standing by virtue of the fact that he did not even intend
attending the auction itself.
22.2 The first applicant states
that he was only ‘seriously considering’ purchasing the
erven marked on annexure “C” to his founding affidavit. These
erven consist of erven numbers 972 to 996, erf 1120, erf 450 and also
the erf he claims could not have been sold (i.e. erf 161). The first
applicant accordingly only considered purchasing some 28 erven of the
total number of 88 erven for sale. As is clear from annexure “D”
to first applicant’s affidavit, the erven he was interested in all
constitute the prime erven which are either lagoon-facing or close to
the lagoon, and sea-facing in the case of erf 161, Long Beach.”
[ 33 ] Mr Smuts submitted on behalf of the first, second and
third respondents that the reason for the application to strike out
is that the first applicant’s application was never brought on the
basis that he has a direct and substantial interest in the
Municipality of Walvis Bay’s finances by virtue of his position as
a municipal tax and rate payer and that the first applicant was
supposed to have stated this in his founding papers. Counsel also
submitted that the first applicant should have set out in his
founding affidavit the basis of how and why the Municipality’s
finances are affected.
[ 34 ] Mr Smuts relied on the cases of Titty’s Bar and
Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4)
SA 362 (TPD) and Coin Security Namibia (Pty) Ltd v Jacobs and
Another 1996 NR 279 (HC). In the Titty’s Bar case
VILJOEN J stated at 368H:
“It has always been the
practice of the Courts in South Africa to strike out matter in
replying affidavits which should have appeared in petitions or
founding affidavits, including facts to establish locus standi
or the jurisdiction of the Court. See Herbstein and Van Winsen, The
Civil Practice of the Superior Courts in South Africa, 2nd ed.,
pp. 75, 94. In my view this practice still prevails.”
[ 35 ] In the Coin Security matter, MTAMBANENGWE J (as he then
was) referred (at p288) to the passage quoted above from the Titty’s
Bar case with approval. He also referred to the case of Shephard
v Tuckers Land and Development Corporation (Pty) Ltd 1978 (1) SA
173 (W) at 177G-H where that court said (per NESTADT J):
“The second part of the
application to strike out, that relating to Auret's affidavit, is
based on the contention that the allegations therein contained should
have formed part of the applicant's founding affidavit and annexures,
or, alternatively, constitute new matter. It is founded on the trite
principle of our law of civil procedure that all the essential
averments must appear in the founding affidavits for the Courts will
not allow an applicant to make or supplement his case in his replying
affidavits and will order any matter appearing therein which should
have been in the founding affidavits to be struck out. (See Herbstein
and Van Winsen, p. 75.)”
[ 36 ] The first applicant’s contention regarding the application
to strike is that there is no substance in the application especially
in relation to the first portion, as it concerns undisputed
allegations already made by the first applicant. It is further
contended that the locus standi established from those
allegations is a legal conclusion based on the facts alleged. As such
it cannot be struck out. In my view a perusal of paragraph 28.2
clearly bears out this contention and in respect of this portion the
application to strike clearly cannot be upheld.
[ 37 ] As regards the second portion, the first applicant contended
that it clearly constitutes a submission and not a new allegation of
fact. The submission that, by virtue of the fact that first applicant
is a resident and municipal rate and tax payer of Walvis Bay, he
would have a direct and substantial interest in the Municipality’s
finances, follows not only as a matter of logic, but is also a
conclusion based on the legal relationship between the parties. This
conclusion can be inferred from the first applicant’s allegations
and status as municipal rate and tax payer, which establishes locus
standi for such an applicant to challenge municipal actions
relating to illegal actions by the municipality in dealing with
municipal funds and property.
[ 38 ] That this is so, has been held in numerous cases, as there is
said to be “a relationship of trust [i.e. a fiduciary relationship]
between the council and the ratepayers in respect of municipal funds
and property.” (Director of Education, Transvaal v McCagie and
Others 1918 AD 616 at 628; Dalrymple and Others v Colonial
Treasurer 1910 TPD 372 at 383, 385; De Villiers v Pretoria
Municipality 1912 TPD 626 at 631; Le Grange v Sterkstroom
Divisional Council 1970 (1) SA 1 (ECD) at 3B; Jacobs en ‘n
Ander v Waks en Andere 1992 (1) SA 521 (AA) at 536D-537B; Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others 1998 (2) SA 1115 (SCA) at 1121
F-H).
[ 39 ] It is clear from the allegations contained in the founding
papers that the implementation of the decision to hold the auction
and the auction itself involved municipal expenditure and dealing in
municipal property which, according to the applicant, is illegal in
the circumstances of this matter.
[ 40 ] The question remains whether the first applicant should have
stated, not only that he is a resident and ratepayer, as he has done,
but also, in so many words, that he claims locus standi on the
ground that he is a resident and ratepayer. In my view this is not
necessary as the claim of locus standi is a matter of law. As
long as the factual allegations on which the claim is based are set
out in the founding papers, that is sufficient. It is open to a
party to argue any point of law based on the factual allegations in
the papers without referring to those points of law in the papers
themselves. In this regard I rely on Simmons, N.O. v Gilbert Hamer
& Co Ltd 1963 (1) SA 897 (NPD) at 903C-D where the following
was stated by CANEY J:
“A party is entitled to make
any legal contention which is open to him on the facts as they appear
on the affidavits.”
(See further Van Rensburg v Van Rensburg en Andere 1983 (1) SA
505 (AA) at 510A).
[ 41 ] It is clear that a court is entitled to proceed on the legal
inferences to be drawn from all the allegations of fact in the papers
(Gramaphone Co Ltd v Music Machine (Pty) Ltd 1973 (3) SA 188
(WLD) at 204C-D).
[ 42 ] In Allen v Van der Merwe 1942 WLD 39 at 47 SOLOMON J
stated that the applicant might have omitted any mention of the legal
contentions on which the prayer in his petition was based and then
would have been entitled to argue any legal point which arose from
the recited facts. The court further held that the applicant was not
confined to the legal grounds set out in his petition but could
advance any further legal basis for the application that might arise
from the stated facts.
[ 43 ] Returning to the principle stated in the Titty’s Bar
and Coin Security cases, it is clear from a reading of these
cases that the applications to strike succeeded because the applicant
in each of the cases had failed to make the necessary factual
allegations to establish locus standi in the founding papers
and sought to rectify the omissions by inserting new facts in reply.
This is not the case in the matter before us. The application to
strike must therefore fail.
[ 44 ] Initially Mr Olivier requested this court to make a
special costs order against the first, second and third respondents
on an attorney and client scale as, he submitted, the application was
mischievous, reckless and vexatious, but this request was later
abandoned, leaving the matter in the hands of the Court. In my view
there is no need to make a punitive order. It was therefore ordered
that the first, second and third respondents pay the first
applicant’s costs in this application jointly and severally, which
costs shall include the costs of two instructed counsel.
D. Interim relief.
[ 45 ] In considering the application for the interim relief
operating as an interim interdict I bear in mind that the court has a
discretion to grant a temporary interdict if (i) the right which the
applicant seeks to protect in the main application is prima facie
established, even though open to some doubt; (ii) there is a
well-grounded apprehension of irreparable harm to the applicant if
the interim relief is not granted and he ultimately succeeds in
establishing his right; (iii) the balance of convenience favours the
granting of interim relief; and (iv) the applicant has no other
remedy (Setlogolo v Setlogolo 1914 AD 221 at 227).
[ 46 ] Further, in considering whether the first requirement has been
met, the proper approach it to take the facts set out by the
applicant, together with any facts set out by the respondent which
the applicant cannot dispute and to consider whether, having regard
to the inherent probabilities, the applicant would be able on those
facts to make out a case for final relief (Gool v Minister of
Justice & another 1955 (2) SA 682 (C) at 688 E-F; Ferreira
v Levin NO and others; Vryenhoek & others v Powell & others
1995 (2) SA 813 (W) 817F-H).
[ 47 ] The first to third respondents oppose the granting of the
interim relief on several grounds. One of these is that the first
applicant has no standing to apply for the relief as he never
intended to attend the auction. This the first applicant denies. He
state that he intended registering as a bidder, but when he was
informed of the discriminatory manner in which it would be held, he
decided not to register. These facts must be accepted at this stage.
Apart from this, for the reasons already set out in the application
to strike dealt with above, the first applicant has the required
standing as a municipal tax and rate payer to challenge actions in
relation to that municipality’s property dealings.
[ 48 ] The first to third respondents further oppose the application
for interim relief on the basis that the first applicant failed to
satisfy the prerequisites for the granting of an interim interdict.
On the other hand, the first applicant maintains that he has
established a clear right to the relief sought.
[ 49 ] The first applicant bases his attack on the sale of the erven
concerned on several grounds. The first is that auction itself was
held in a manner which was an infringement of his constitutional and
common law rights, more specifically, his right to human dignity
(Article 8); the right to equality and freedom from discrimination
(Article 10); the right of all persons to, in any part of Namibia,
acquire, own and dispose of all forms of immoveable and movable
property, individually or in association with others (Article 16);
his right to administrative justice (Article 18); and the right to
practice any profession or carry on any occupation, trade or business
(Article 21(1)(j)).
[ 50 ] Where the relief sought is for an interim interdict pendente
lite, it is in my view not necessary to deal with the matter at
this stage on the basis of all the alleged infringements. The first
to third respondents admit in their papers that the auction was held
in a manner excluding certain persons from participating in the first
round on the basis of their colour, in this case, on the basis that
they are white. They allege that this was done in terms of the
so-called land policy, to which I have referred above and allege
further that this policy is lawful and permitted in terms of Article
23 of the Constitution. The relevant parts provide:
“Article
23 Apartheid and Affirmative Action
(1) The
practice of racial discrimination and the practice and ideology of
apartheid from which the majority of the people of Namibia have
suffered for so long shall be prohibited and by Act of Parliament
such practices, and the propagation of such practices, may be
rendered criminally punishable by the ordinary Courts by means of
such punishment as Parliament deems necessary for the purposes of
expressing the revulsion of the Namibian people at such practices.
Nothing
contained in Article 10 hereof shall prevent Parliament from
enacting legislation providing directly or indirectly for the
advancement of persons within Namibia who have been socially,
economically or educationally disadvantaged by past discriminatory
laws or practices, or for the implementation of policies and
programmes aimed at redressing social, economic or educational
imbalances in the Namibian society arising out of past
discriminatory laws or practices, or for achieving a balanced
structuring of the public service, the police force, the defence
force, and the prison service.”
[ 51 ] The so-called land
policy and the manner in which it was applied at the auction is
clearly discriminatory on grounds of colour and therefore in
violation of Article 10. Parliament has not enacted legislation under
Article 23(2) to provide for the implementation of such a policy. As
such it is clearly illegal.
[ 52 ] The second ground on
which the first applicant relies is that the first to third
respondents failed to comply with the provisions of section 63(2)(a)
and (b) of the Local Authorities Act, 1992 (Act 23 of 1992), as
amended by, inter alia, the Local Authorities Amendment Act,
2000 (Act 24 of 2000). This section provides:
“63.
(2) A local authority council referred to in paragraph (b) of
subsection (1) shall, before any immovable property so referred to is
sold, disposed of, or let, hypothecated or otherwise encumbered,
whether by way of public auction or tender or private transaction,
cause a notice to be published in at least two newspapers circulating
in its area on one occasion in a week for two consecutive weeks –
setting
out the zoning and situation of such property and stating the place,
dates and times where full particulars relating to the sale,
disposal, letting, hypothecation or encumbrance of such property
will lie for inspection by interested persons for a period of not
less than seven days after the last date of the publication of such
notice;
in
the case of the sale, disposal, letting, hypothecation or
encumbrance of such immovable property by way of a private
transaction, calling upon interested persons to lodge any objection
to such sale, disposal, letting, hypothecation or encumbrance with
the local authority council in writing within a period of not less
than ten days after the last date of the publication of such
notice.”.
[ 53 ] As far as section
63(2)(a) is concerned the main objection raised by the first
applicant is that the required notice was not given at least 7 days
before the auction. It is not disputed that during the last two weeks
before the auction publication occurred as follows:
in the “Republikein” on
Monday, 15 December 2003 and on Thursday, 18 December 2003;
in the “Namibian” on
Thursday, 18 December 2003;
in the “Namib Times” on
Friday, 12 December 2003 and on Tuesday, 18
December 2003.
[ 54 ] First to third
respondents contended that there was substantial compliance with the
requirements of the section and that the first applicant did see the
notice and had an opportunity to inspect the particulars required to
be published, thereby not suffering any prejudice.
[ 55 ] Apart from this, the
first to third respondents admit in their answering papers that by an
oversight, no notice was given in respect of erf 1096 and that the
sale of this erf was invalid.
[ 56 ] I agree with counsel for
the first applicant that the purpose of the section is to provide a
window period for interested persons to inspect full particulars
regarding the sale and other details on the property to be offered
for sale. When the legislature determined a period of seven days, it
seems to me that it must have considered this to be the minimum
sufficient period to provide for such an opportunity, at it used the
words “not less than seven days after the last date if the
publication of such notice”. Not only does it provide sufficient
time for inspection, but also affords an opportunity to prospective
purchasers to make arrangements to attend the auction and to be able
to bid. This must surely be in the interests of the local authority
which obviously wants to attract as many bidders as possible with
enough funds available to sell its property at the best possible
prices. Affording inadequate time to interested persons, which is
considered by the legislature to be less than 7 days, cannot serve
the interests of the local authority and its rate payers. Prima
facie, it seems to me that the first applicant has established a
right to object to the auction on these grounds.
[ 57 ] The same can, in my
view, be said in respect of the alleged non-compliance with section
63(2)(b) of the Act, when 44 of the remaining erven were sold by
private treaty. None of these were advertised as required by the Act.
Although the first to third respondents alleged that evidence of
these sales was inadmissible hearsay evidence, it must be pointed out
that this information is contained in the list of purchasers they
provided to the first applicant on 17 February 2004.
[ 58 ] The third ground on
which the first applicant relies for the interim relief is the
non-compliance with section 50 of the Act in relation to erf 161,
Langstrand. It is common cause that this erf is a public space, which
is defined in the Act as “any square, garden, park, recreation
ground, show ground, rest camp or other open or enclosed space
intended for the use, enjoyment or benefit of residents in a local
authority area”. The relevant parts of section 50 provide:
“50 Closing
of streets or public places
(1) A
local authority council may -
(a) at
any time and upon such notice as it may deem fit -
(i) temporarily
close any public place or any part of a public place for any purpose
which in its opinion requires it to be so closed;
(ii) temporarily
or permanently close any street or any portion of a street for any
particular class of traffic for any purpose which in its opinion
requires it to be so closed; or
(iii) temporarily
close or divert any street or any portion of a street for all traffic
for the purpose of maintenance or any reason which in its opinion
requires it to be so closed;
(b) subject
to such terms and conditions as may be determined by the local
authority council, let or grant the right to use temporarily, any
public place or part of a public place or any street or portion of a
street closed in terms of paragraph (a) to any person for any period
during the period in which it is so closed;
(c) subject
to the provisions of subsections (2), (3) and (4), permanently close
any public place or any part of a public place, or permanently close
or divert any street or any portion of a street;
(d) re-open
any public place or part of a public place or re-open or re-divert,
mutatis mutandis in accordance with the provisions of
subsections (2) and (3), any street or portion of a street closed or
diverted in terms of paragraph (c).
(2) A
public place or any part of a public place shall not be closed, or a
street or any portion or a street shall not be closed or diverted, in
terms of paragraph (c) of subsection (1), except upon a decision of
the local authority council taken, upon the recommendation by its
management committee at a meeting at which a majority of its members
are present and, in the case of a municipal council or town council,
on the recommendation of its management committee.
(3)
(a) A local authority council shall, before it closes any public
place or part of a public place or closes or diverts any street or
portion of a street -
(i) cause
a plan to be prepared showing the nature of the closure or diversion
of such public place or street and the location of such public place
or street;
(ii) cause
a notice to be published in the Gazette and in at least two
newspapers circulating within its area, setting out -
(aa) the
nature of the closure or diversion of such public place or street;
(bb) the
location of such public place or street;
(iii)
state that the plan referred to in subparagraph (i) is lying
for inspection at the offices of the local authority council during
ordinary office hours; and
(iv)
call upon interested persons to lodge any objections to such
closure or diversion with the local authority council in writing
within a period of not less than 14 days after the date of the
publication of such notice.
(b) A
copy of the notice referred to in subsection (1) shall within 14 days
after its publication be served on the owner and occupier of any
immovable property situated directly opposite any such public place
or street.
(c) If
any objection is lodged in terms of paragraph (a), the public place
or part of a public place or the street or portion of a street shall
not be closed or diverted, as the case may be, unless -
(i) the
local authority council has submitted to the Minister such
particulars as the Minister may require in relation to the proposed
closure or diversion, together with the objections lodged and the
comments of the local authority council thereon; and
(ii) the
local authority council has obtained the approval of the Minister to
so close such public place or such part of a public place or divert
such street or such portion of a street.
(4) A
local authority council shall notify the Surveyor-General of any
permanent closure or diversion of a street or portion of a street
effected in terms of this section.
(5) Notwithstanding
the provisions of section 33, the owner of any immovable property who
has suffered any damage or loss in consequence of the closure of any
public place or part of a public place or the closure or diversion of
any street or any portion of a street under this section, shall be
entitled to such compensation as may be determined by mutual
agreement between such owner and the local authority council in
question or, in the absence of any such agreement, by arbitration.
(6) Any
person who uses a public place or street or any portion thereof that
has been temporarily closed or diverted in terms of subsection (1)
shall be guilty of an offence and on conviction be liable to a fine
not exceeding N$2000 or to imprisonment for a period not exceeding
six months or to both such fine and such imprisonment.”
[ 59 ] The first applicant
alleges that none of these provisions have been followed. The first
to third respondents’ reply is that the sale of erf 161 is
conditional and rely on a document which was attached to their letter
to first applicant dated 17 February 2004 which apparently set out
conditions of sale in respect of erf 161 in which the following
paragraphs appear:
“THE
AGREEMENT OF SALE WILL BE SIGNED ONCE THE PURCHASER HAS ATTENDED TO
ALL LEGAL AND RELATED PROCEDURE IN TERMS OF THE LOCAL AUTHORITIES
ACT, 1992 (ACT 23/1992) AS AMENDED, AND THE WALVIS BAY TOWN PLANNING
SCHEME, AS FAR AS THE CLOSURE AND REZONING OF THE PUBLIC OPEN SPACE
ARE CONCERNED. THE SAID PUBLIC OPEN SPACE CAN BE REZONED TO GENERAL
RESIDENTIAL 11.
THE
PURCHASER MUST COMMENCE WITH THE ABOVEMENTIONED PROCEDURES WITHIN
THREE MONTHS FROM DATE OF THIS AUCTION.
THE
MUNICIPALITY WILL GIVE THE REQUIRED ASSISTANCE.”
[ 60 ] In as much as the
so-called conditions place an onus on the purchaser to do what the
local authority is supposed to do by law, it seems to me to amount to
an abdication of its duty under the law to follow a rather stringent
procedure before a public place may be closed. A purchaser would not,
in terms of the section be entitled to take the actions contemplated
by the relevant legal provisions. I agree with counsel for the first
applicant that this would be requiring of the purchaser to do what is
legally impossible. The procedure contemplates notice being given to
interested parties and allows for objections to be made against the
proposed closure. The section states that the procedure must be
followed before the public space is closed. The purpose of the
section is to protect the interests of the public and of the owner or
occupier of immovable property directly opposite the public space or
who may suffer any damage as a result of the closure. This purpose is
not served by offering the public space for sale before the required
procedures have been followed.
[ 61 ] In my view the first
applicant established that there was a reasonable apprehension of
irreparable harm to him should the transfer of the erven sold not be
interdicted. I am also satisfied that the balance of convenience
favours the first applicant.
[ 62 ] Consequently the
application for the interim relief was granted as set out in the
order at the commencement of these reasons.
_______________________________
VAN NIEKERK, J
I agree.
______________________________
DAMASEB, JP
I agree.
___________________________
SILUNGWE, J
APPEARANCE FOR THE PARTIES:
APPLICANTS:
Adv W Olivier SC, with Adv R Tötemeyer
Instructed by: Dr Weder, Kruger
& Hartmann
FIRST TO THIRD RESPONDENTS:
Adv D F Smuts SC,
with
Advv R Cohrssen and L Hamutenya
Instructed by: Metcalfe Legal
Practitioners