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

JUDGMENT

1.	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');
2.	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.
3.	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;
4.	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.

THE PLASCON- EVANS RULE APPLIES

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').

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.

'(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

[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

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

THE SECOND RESPONDENT'S CASE

Lack of locus

'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.

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.

[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

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.

(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.

'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.'

'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.

[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;

4. Erf 95, Longbeach is a single residential zoned property with a density of 1:300;

We also at this stage apply for copies of the following documents, the cost of which our client tenders to pay:

[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:

d) 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:

"Single Residential" zoned property

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.

[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

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.

[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.

[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.

'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'.

[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.

[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:

[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.'

[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:

DAMASEB, JP

Appearance for the parties

by D Obbes

Windhoek

ON BEHALF OF THE SECOND RESPONDENT

STEPHEN KENNY LEGAL PRACTIONERS