Declaratory Relief

McLaren NO v The Municipal Council of Windhoek (A110/2009) [2016] NAHCMD 161 (06 August 2016);

Headnote and Holding: 

The applicants sought to review and set aside the decision of the first respondent to cancel a lease agreement concluded by the 4th applicant after the 4th applicant disregarded environmental standards on wastewater discharge per the agreement.

The court determined whether the first to third applicants’ irregular appointment as liquidators deprived them of locus standi (capacity) to seek review. It was held that these applicants had the required locus standi.

The court also determined whether the application was brought in reasonable time given the delay in filing the application after becoming aware of the cancellation of the lease. It was noted that there is no prescribed time for the institution of review proceedings. However, the court found that the applicants failed to explain the delay and held it to be unreasonable.

The court held that the relationship between the 4th applicant and first respondent was a contractual relationship. The court considered whether the Municipality validly cancelled the lease agreement before the liquidators’ election to continue with the lease agreement. The court considered clause 16.1 of the agreement and observed that the agreement required no formalities for cancellation. It applied the test of whether a reasonable person would conclude that the proper performance will not be forthcoming and held that the Municipality had a right to cancel the lease.

It was also held that the review relief sought was unsustainable since the decision to cancel the agreement did not constitute reviewable administrative action despite being made by a person who would ordinarily perform administrative functions.

The applicants abandoned their claim for declaratory order to exercise an improvement lien and moved for amendment of the relief in prayer 3. However, the amendment was not requested or granted. Hence the two prayers were dismissed.

Accordingly, the matter was dismissed with costs.

Municipal Council of Windhoek v Claudia Properties CC and Another (A 117/2010) [2014] NAHCMD 332 (14 November 2014);

Headnote and Holding: 

The court considered an application for a mandamus by the applicant, as a result of the respondents having applied for the consolidation and rezoning of 2 plots of land. The respondents had their application conditionally approved upon submitting an engineer’s drawing for the erection of retaining walls as part of flood protection and to create 54 client accessible parking bays. 

The court considered if there was a contravention of s 44(5) of the applicant’s town planning scheme in accordance with the Town Planning Ordinance No 18 of 1954 as amended. Without drawing plans being submitted to the applicant for approval, the respondents admitted that a temporary corrugated iron wall was erected on the riverbank which was next to the two properties. On their own admission, the respondents did not create the 54 accessible parking bays. 

The court found that the respondents failed to adhere to the condition of their approved application, so they were ordered to remove the illegally constructed corrugated iron wall, to submit an engineer’s drawing for the erection of the retaining walls to be constructed on the properties, within three months of the order. They were also ordered to construct the retaining wall within six months from the date of the approval by the applicant of the engineering drawing, as well as to remove all building materials and rubble from one plot in order to create 54 accessible parking bays on one of the properties. Respondents were ordered to pay applicant’s costs.

Trade Line Namibia (Pty) Ltd v Nambib Resources (Pty) Ltd and Another (SA3/03 ) [2003] NASC 14 (12 August 2003);

Headnote and Holding: 

This was an appeal against the decision of the court a quo, which dismissed an urgent application on the ground that the application was not urgent. 

The court dealt with the requirements for a judgment to be appealable. The court relied on the Erasmus Superior Court Practice, A1 – 43 in formulating the requirements. First, the decision must be final in nature and not capable of alteration by the court hearing the matter. Secondly, the decision must be definitive of the rights of the parties, through granting a definite and distinct relief. Lastly, it must have the effect of disposing a substantial portion of the relief claimed in the main proceedings. 

Relying on Lubambi v Presbyterian Church of Africa, the court further found that the ruling that a matter is urgent and must procced on that basis, was found not to be an appealable ‘judgment or order’ and such an order is similar to an order giving direction in regard to evidence, or referring a matter to trial. It is therefore not appealable.

In removing the matter from the roll with costs, the court held that the case was concerned with procedure and not the substance of the application. 

Moly-Copper Mining and Exploration Company (SWA) Limited v IMCOR Zinc (Pty) Ltd and Another (SA 3/94) [1994] NASC 7 (08 December 1994);

Headnote and Holding: 

The matter dealt with the interpretation of particular terms of a prospecting agreement which arose from the mining of a grant area.
The Supreme Court considered whether to declare that clause 8 (a) created an obligation to provide sufficient funds on a continuing basis. The test was whether the obligation to fund was limited. The appellant’s argument was based upon a literal reading which the court held was absurd as it would result in regarding the obligation as an unlimited one. Accordingly, the court held that the express terms of the clause contemplated further funding to be determined by a further mutual agreement.
The court considered whether clause 10 entitled the second respondent to call up its loan. The court reasoned that if the loan was never repayable it would not be a loan. The court held that the respondent, Iscor, was not precluded from calling up its loan and to say that it would be is far too wide.
The court considered whether to grant the declaratory order in terms of clause 9. The court found the prayer to be too vague to warrant a declaration. Accordingly, the court held that the declarator sought was without substance.
In order for a declarator to be granted the issue which the declarator seeks to address must be in dispute between the parties. In the circumstances there was no material time when there had been a dispute about the continued existence of the agreement. Accordingly, the court held that it would not grant the declarator sought.
The appeal was dismissed with costs.