International University of Management v Council of the Municipality of Windhoek and Others (HC-MD-CIV-MOT-REV-2022/00440) [2024] NAHCMD 693 (15 November 2024)

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: HC-MD-CIV-MOT-REV-2022/00440

In the matter between:

INTERNATIONAL UNIVERSITY OF MANAGEMENT APPLICANT

and

COUNCIL OF THE MUNICIPALITY OF WINDHOEK 1^ST RESPONDENT

MINISTER OF URBAN AND RURAL DEVELOPMENT 2^ND RESPONDENT

CHIEF EXECUTIVE OFFICER OF THE

MUNICIPALITY OF WINDHOEK 3^RD RESPONDENT

URBAN AND REGIONAL PLANNING BOARD 4^TH RESPONDENT

Neutral citation: International University of Management v Council of the Municipality of Windhoek (HC-MD-CIV-MOT-REV-2022/00440) [2024] NAHCMD 693 (15 November 2024)

Coram: ANGULA DJP

Heard: 6 August 2024

Delivered: 15 November 2024

Flynote: Applications – Administrative Review – Local Authorities Act 23 of 1992 – Whether the Council made a decision – Whether the applicant is entitled to the alternative relief of mandamus.

Summary: The applicant bought a piece of land during 2011 from the first respondent (the Council) to construct a multipurpose hall for its students’ community at the Windhoek Campus. The property was then transferred into the applicant’s name during October 2012. During March 2020, the applicant submitted building plans to the Council’s Town Planning Department for approval, but in January 2021, the applicant was informed that the building plans would not be approved because the property has to be zoned from ‘private open space’ to ‘institutional use’. During June 2021, the Council provided the applicant with a notice in terms of s 109(3) of the Local Authorities Act 23 of 1992 (the Act) advising that it would recommend to the Urban and Regional Planning Board (the Planning Board) the rezoning of the property subject to compliance with certain conditions. The notice further informed the applicant that should it be aggrieved by the Council’s decision, it had the right in terms of s 110 of the Urban and Regional Planning Act 5 of 2018 (the Planning Act) to appeal to the Minister. The applicant, on or about 12 July 2021, noted an appeal to the Minister in terms of s 110 of the Planning Act. The applicant alleges that the Planning Board made a decision that was communicated by letter dated 27 June 2022 to the applicant’s consultant. The Council denied that there was an appeal lodged against its decision and pointed out that it was not a decision, but a mere recommendation by the Planning Board to the Minister.

Aggrieved by the said decision the applicant approached the court. The court had to decide on first, whether the applicant has made out a case that the Council had made a decision imposing conditions on the applicant for the approval of its building plans; and second, whether the applicant had made out a case to be granted the alternative relief of mandamus in terms of which the Council is directed to make a decision concerning the applicant’s building plans.

Held that; s 14(5) of the Act provides that the decision of a local authority council is to be made by the majority of the members of the Council present at a meeting of the Council.

Held that; the manner to prove the decision or resolution of the Council is prescribed by s 15(4) of the Act, whereby a mere production of a certified copy of the resolution at any judicial proceeding shall constitute proof of the decision.

Held that; the applicant had failed to prove that the Council had made a decision concerning its building plans.

Held that; the common law remedy of mandamus is discretionary. Undue delay on the part of an applicant, therefore, might adversely influence the court in the exercise of its discretion. Therefore, the review must be sought within a reasonable time; that the period of four years was inordinate and was not explained.

Held further that; it does not follow that because a public authority has a duty to decide whether or not to exercise its power, it always has a duty to act. If its power is discretionary it might decide to take no action at all. It may do that if, in reaching its decision, it has properly taken into account all the relevant factors pertaining to its discretion.

ORDER

1. The application to review and set aside the Council’s purported decision is dismissed including the alternative relief seeking a mandamus order.

2. The applicant is to pay the costs of the respondents, who opposed the application, such costs to include the costs of one instructing and one instructed counsel.

3. The matter is removed from the roll and is regarded as finalised.

JUDGMENT

ANGULA DJP:

Introduction

1. This is a review application in which the applicant seeks an order to review and set aside the decision by the first respondent (the Council) to impose conditions for the approval of the applicant’s building plans for the construction of the multipurpose hall at its Windhoek Campus. The applicant further seeks a consequential order directing the Council to approve the applicant’s said building plans. In the alternative, the applicant seeks a mandamus order directing the Council to make a decision to approve or disapprove the applicant’s building plans within five days from date of the order.

The parties

2. The applicant is the International University of Management, a tertiary education institution incorporated and registered in terms of the Companies Act 28 of 2004, as an association not for gain. It has its principal place of business situated at 21-31 Hercules Street, Dorado Park, Windhoek, Namibia.

3. The first respondent is the Council for the Municipality of Windhoek, a juristic person established in terms of the Local Authorities Act 23 of 1992 (the Act), with its principal place of business situated at No 80 Independence Avenue, Windhoek, Namibia.

4. The second respondent is the Minister for Urban and Rural Development (the Minister), cited in his capacity as such with his service address being the Office of the Government Attorney with its office situated at 2^nd Floor Sanlam Building, Independence Avenue, Windhoek, Namibia.

5. The third respondent is the Chief Executive Officer for the Council of the Municipality of Windhoek with his principal place of business situated at No 80 Independence Avenue, Windhoek, Namibia.

6. The fourth respondent is Urban and Regional Planning Board, a juristic person established in terms of the Urban and regional Planning Act 5 of 2018, with its service address being the Office of the Government Attorney with its office situated at 2^nd Floor Sanlam Building, Independence Avenue, Windhoek, Namibia.

Factual background

7. It is common cause that during 2011, the applicant bought a piece of land from the Council, described as Erf No 1488 (a portion of Erf No 273) Dorado Park Extension 1, Windhoek (the property). The applicant’s intention for buying the property is to construct a multipurpose hall for its students’ community at the Windhoek Campus. After the purchase transaction, the property was transferred into the name of the applicant during October 2012.

8. During March 2020, the applicant submitted building plans to the Council’s Town Planning Department for approval. In January 2021, the applicant was informed that the building plans would not be approved because the property was not rezoned from ‘private open space’ to ‘institutional’ use.

9. On or about 29 June 2021, the Council provided the applicant with a notice in terms of s 109(3) of the Urban and Regional Planning Act 5 of 2018 (the Planning Act) advising that it would recommend to the Urban and Regional Planning Board (the Planning Board) the rezoning of the property subject to compliance with certain conditions. The notice further informed the applicant that should it be aggrieved by the Council’s decision it had the right in terms of s 110 of the Planning Act to appeal to the Minister. That concludes the common cause facts.

The applicant’s case

10. The applicant’s founding affidavit has been deposed to by Dr Namwandi. He alleged that he is the founder and chairperson of the applicant. He stated that the purpose of this application was to review and set aside the decision by the Council communicated to the applicant through the Council’s Strategic Executive for Planning, one Mr Pierre Van Rensburg, to unlawfully, in breach of the Article 18 of the Constitution, impose conditions for the approval of the applicant’s building plans in respect of the construction of a multipurpose hall.

11. He alleged that of the 39 conditions listed in the Council’s letter of 29 June 2021, the only condition that related to the building plans was condition number 1.2.24, which reads ‘[t]hat no building plans be approved until the stormwater conditions are met’. According to the deponent the intended building is a multipurpose hall. It is a social hall, which in terms of the Council’s definitions, means ‘building designed and/or used for social meetings, gathering and recreation and includes a non-residential club but does not include a place of amusement’.

12. On or about 12 July 2021, following the Council’s notice in terms of s 109 of the Planning Act, the applicant noted an appeal in terms of s 110 of the Planning Act to the Minister. The appeal was determined by the Planning Board.

13. According to Dr Namwandi, the Board made a decision which was communicated to the applicant’s consultant, Plan African Consultant CC, by letter dated 27 June 2022. The decision read in part as follows:

‘The Board recommends that:

1. Exemption be granted in terms of section 127 of the Urban and Regional Planning Act; 2018 (Act No. 5 of 2018).

2. The rezoning of Erf 1488 Dorado Park Extension 1 from “private open space” to “institutional” according to Windhoek Zoning Scheme be approved in terms of section 113(1)(l) of the Urban and Regional Planning Act, 2018 (Act No 5 of 2018).’

14. Dr Namwandi, deposed further that the Board’s decision was published in the Gazette on 15 August 2022. A copy of the said Gazette was attached to the founding affidavit. The deponent argued that the Board’s decision overrode the Council’s resolution number 118/05/2021.

[15] Dr Namwandi further deposed that after receipt of the Board’s decision, his legal practitioner addressed a letter to the Council on 16 August 2022 pointing out that the applicant had been exempted from conditions that the Council sought to impose. Meanwhile, on 15 August 2022, Mr Van Rensburg sent an email to the applicant’s legal practitioner, reiterating that the building plans would not be approved until the conditions imposed by Council have been complied with.

[16] The deponent then proceeded to set out the grounds for review. It is not necessary to traverse those grounds here. The deponent concluded by saying that the Council’s refusal to approve the building plans is unlawful; that it violates the principle of legality; that it is unfair; that it is unreasonable, irrational and arbitrary.

[17] After the record of the Council’s proceedings was filed, the applicant filed a supplementary founding affidavit.

[18] Dr Namwandi deposed that the purpose of the supplementary affidavit was to supplement the grounds of review. He pointed out that the Council conflated the rezoning process and the conditions attached to the rezoning process on the one hand and the process concerning the approval of the building plans, on the other hand. He then proceeded to explain, what according to him, the two separate processes entails.

[19] According to the deponent, there was an internal objection made by the Section Engineer of the Roads Planning and Traffic Flow Department, which objected to the proposed rezoning. The objection linked the rezoning and consent to two conditions: first, that the traffic impact assessment should be submitted first for consideration; second, that the building plans be submitted but should not be approved before construction.

[20] The deponent argued that once the rezoning application was approved coupled with an exemption, the conditions imposed by the Council fell away as they had been overridden by the decision of the Minister and the Board.

[21] According to the deponent, the conflation of the issues relating to the rezoning application has resulted in the Council applying matters to the building plans that were not related to the provision of regulation 8 of the Municipality of Windhoek Building Regulations. The deponent pointed out in this regard that Mr Van Rensburg from the Council’s Planning Department intimated that the only reason why the building plans had not been approved was related to the rezoning and not to the building plans themselves.

First and third respondents’ opposition

[22] The answering affidavit filed on behalf of the Council was deposed to by Mr Faniel Maanda in his capacity as the Council’s acting Chief Executive Officer.

[23] Mr Maanda denied that an appeal was lodged by the applicant against the decision of the Council. In this connection, the deponent pointed out the applicant failed to attach a copy of the decision related to the appeal or ‘the purported appeal itself’.

[24] The deponent pointed out further that, what the applicant alleged was the decision of the Planning Board, was not the decision by the Minister, but a recommendation by the Planning Board to the Minister. In addition the deponent pointed out that ‘it is not apparent that the requirements of sections 112 and 129 had been complied with’.

[25] According to Mr Maanda, the applicant erroneously refers to an application that was made inconsistent with the Planning Act. The deponent pointed out that that was ‘misleading’.

[26] Furthermore, the Minister never decided on the appeal. Mr Maanda further pointed out that there was no record of an appeal committee. According to the deponent, the applicant did not point to any decision by the Minister which was consistent with s 113 of the Planning Act.

[27] According to Mr Maanda, the applicant’s application for rezoning, which was instituted on 18 February 2021 was still pending before the Council. Mr Maanda deposed further that the Council never made recommendations in terms of s 109(2) to the Planning Act to determine the applicant’s application. Furthermore, that the only application that served before the Planning Board was made on behalf of the applicant by Plan Africa Consulting CC, the applicant’s consultant. That application, according to the deponent, flouted the processes of the Planning Act. The deponent argued that the applicant placed its application before the Planning Board to prevent the Council from dealing with the defects in the application. Mr Maanda pointed out in this connection that the applicant's conduct constitutes an offence in terms of s 130 of the Planning Act.

[28] According to the deponent, there is no decision taken by the Council that is capable of being reviewed and set aside. Mr Maanda pointed out in this regard that the correspondence as well as the conduct of the parties indicates an opposite position.

[29] According to Mr Maanda, the correct position is that the Minister would not have asked the Council to approve the building plans if he had already taken a decision concerning the applicant’s application. Furthermore, there was no reason why the Minister would have asked the Council to approve the building plans since the Minister’s decision or that of the Planning Board would be binding on the Council. In addition, the Minister’s correspondence came three days after the alleged decision of 15 August 2022 by Mr Van Rensburg acting on behalf of the Council. Furthermore, the letter from the applicant’s legal practitioner of 16 August 2022 confirmed that there was no decision taken by the Council. It was for that reason that the letter threatened the Council that the applicant would launch an application to Court and demanded ‘that your offices approve our client’s building plans as soon as possible’.

[30] Mr Maanda stated that he had been advised that the exemption granted by the Planning Board was a nullity in that the Minister did not grant the exemption on the recommendation of the Planning Board. The deponent denied that the email correspondence by Mr Van Rensburg constituted a decision by the Council.

[31] In response to the supplementary founding affidavit, Mr Maanda stated that he had been advised that the citation of the Planning Board in the supplementary affidavit as a party to these proceedings, without a proper joinder application is procedurally incorrect. In addition, the Planning Board is not cited as a party in the amended notice of motion. It would be recalled that it was pointed out in the answering affidavit that the applicant did not join the Planning Board. In order to try to address that defect, the applicant added the Planning Board to the list of respondents in the heading part, without formally first having applied and being granted leave to join the Planning Board as a party to the proceedings.

Parties’ submissions

Submissions on behalf of the applicant

[32] Mr Chibwana appeared for the applicant. In support of both the main as well as the alternative relief, counsel relied on regulation 8 of the Regulations published in Government Notice No 57 of 1969 as amended by Government Notice No 271 of 2011. The said Regulation provides that the Council shall signify its approval or disapproval of the building plans submitted within 28 days of receipt unless any public holidays intervene in which event the time period shall be extended to 35 days.

[33] In this regard, counsel argued that the Council has refused or neglected to decide on the applicant’s building plans by seeking to impose rezoning-related conditions that have nothing to do with the approval of building plans. Counsel thus submitted that the Council is guilty of failing to comply with the mandatory statutory time period to approve or decline to approve the building plans.

[34] Mr Chibwana referred the court to some decided cases dealing with the remedy of mandamus which I will consider later in the course of the judgment.

Submissions on behalf of the first to third respondents

[35] Mr Hengari appeared on behalf of the first to third respondents. He commenced his argument by pointing out the case the respondents were called upon to meet and that is set out in the founding affidavit was to the effect that ‘the purpose of the application is to review and set aside a decision by the First Respondent communicated through the first respondent’s Strategic Executive for Planning Mr Pierre Van Rensburg to unlawfully in breach of Article 18 of the Constitution impose conditions for the approval of the Applicant’s building plans in respect of the construction of a multipurpose hall by the Applicant’.

[36] Counsel pointed out that the Council is enjoined to comply with the provisions of the Local Authorities Act 23 of 1992 as well as the provisions of the Planning Act.

[37] In compliance with the Planning Act, the Council gave notice to the applicant on 29 June 2021 that it intended to recommend to the Planning Board the applicant’s application for rezoning, subject to the conditions stipulated in the Council Resolution number 118/05/2021. The notice informed the applicant that in the event that the applicant would be aggrieved by the Council’s decision it had the right to appeal to the Minister. It was common cause that the applicant did not note any appeal.

[38] Counsel further pointed out that the applicant seeks an order to review the Council’s decision imposing conditions for the approval of the building plans, however, no such decision had been taken. No decision has been taken either to refuse or approve the building plans.

[39] Mr Hengari further pointed out that the email correspondence from the Council’s official, Mr Van Rensburg, upon which the applicant relied for the contention that the Council imposed conditions, did not constitute a decision. It merely listed items which were outstanding before approval of the building plans could be considered.

[40] As regards the alternative relief sought in the form of a mandamus, counsel argued that the relief it is an afterthought. This was because such relief had not been pleaded in the applicant’s founding affidavit. Furthermore, the applicant did not plead that the Council refused or neglected to carry out its statutory duties

[41] Counsel pointed out that the building plans were submitted in March 2020. The applicant should have brought its mandamus application already four years ago by April or May 2020. It delayed without reason to apply for a mandamus relief.

[42] Counsel further pointed out that it was only after the answering affidavit was filed where it was denied that no decision had been taken capable of review, and that the applicant changed front and amended its notice of motion to apply for a mandamus order. However, it did not supplement its review grounds to support the mandamus order sought.

Issues for determination

[43] The issues for determination are; first, whether the applicant has made out a case that the Council has made a decision imposing conditions on the applicant for the approval of its building plans; and second, whether the applicant has made out a case to be granted the alternative relief of mandamus in terms of which the Council is directed to make a decision concerning the applicant’s building plans.

Discussion and analysis

[44] After the record of the Council’s proceedings was filed, an answering affidavit on behalf of the Council was also filed. It was denied in the answering affidavit that the Council had taken a decision relating to the applicant’s building plans, which the applicants sought to be reviewed and set aside. In the applicants replying affidavit, the deponent states that: ‘I note the concession by the First Respondent that it has not taken a decision as regards the approval of the Applicant’s building plans. This the basis for the alternative relief which is mandamus requiring the First Respondent to take a decision’. Mr Hengari pointed out that the applicant’s suggestion is ‘mischievously’ made because on the papers, the Council did not make such a concession.

[45] When the matter was argued, counsel for the applicant did not unequivocally abandon the main relief sought. The matter was thus fully argued in respect of both the main as well as the alternative relief.

[46] The dispute between the parties relating to the main relief claimed is to be resolved through the application of the well-known Plascon-Evans principle. The principle can briefly be paraphrased as follows: where in the proceedings on notice of motion a dispute of facts arises, final relief may only be granted if the facts alleged in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. If the court is satisfied as to the inherent credibility of the applicant’s factual averments, it may proceed on the basis of the correctness thereof and include the facts among those upon which it determines whether the applicant is entitled to final relief. However, when the allegations or denials by the respondent are so far-fetched or clearly untenable, the court is justified in rejecting them merely on the papers.¹

[47] In this matter, the applicant alleged that the email dated 15 August 2022 by Mr Van Rensburg, conveyed the Council’s decision to impose conditions for the approval of the applicant's building plans.

[48] It is convenient to reproduce the email here. It reads:

‘Dear Ms da Silva,

As per our last meeting you may remember three items being listed as outstanding and discussed. To the best of my recollection these were:

1. Land use support by the Council, but not yet confirmed by the Board and legally gazetted;

2. Construction of the Taxi Facilities, outstanding since the first phase of development;

3. Finalisation of the Traffic Impact Assessment (TIA) and any resulting obligation on the developer.

The information distributed today now confirms one above and I believe two to be under way (Mr.Lisse to confrm??). I don’t have any information on three, but perhaps this can be reported on. As noted before we are also happy to enter into an agreement towards the discharge of the obligations under three, if this will still require time.

Once all three are covered, we will be happy to proceed with the release of the Building Plans as per the applicable Council resolution.

Best regards,

Pierre.’

[49] On a proper reading of the contents of that email, it simply conveyed and recorded the matters that were outstanding from the applicant’s side, which should be attended to, to enable the Council to consider and decide upon the applicant’s building plans. Moreover, by any stretch of imagination, it is unthinkable that a decision of the Council can be contained in an email communication. One would have expected the Council’s decision to be on an official document perhaps on the letter head of the Council bearing the resolution number even if it is conveyed via an email. It is reasonable to infer that the applicant and those who were advising it would know the format of the Council Resolution. The Council’s resolution number 118/05/2021 which was communicated to the applicant relating to the rezoning of the applicant’s property, for instance comes to trial.

[50] Had the applicant and those who were advising it been diligent, they would have established that s 14(5) of the Act provides that the decision of a local authority council is to be made by the majority of the members of the council present at a meeting of the council. Furthermore, s 16 of the Act provides that the minutes of a meeting of a local authority council shall, during office hours be available for inspection by any person; and that the council shall at the request of any person, on payment of an amount determined by the Council furnish such person with a copy or extract from the minutes.

[51] In this matter, if the applicant had been diligent in the prosecution of its application it would have simply followed the procedure prescribed by ss 14 and 16 of the Act and produced either a resolution it alleged that the Council took, regarding its building plans or an extract from the minutes of the Council where the alleged decision was taken by the Council. The applicant failed to produce such a resolution or extract from the minutes of the Council. Instead, it in foolhardiness persisted in alleging that an email by an official of a council constitutes a decision of the council. More importantly, s 15(4) of the Act provides that any document purporting to be certified by or on behalf of the chief executive officer as a true copy of or extract from any minutes of a meeting of the Council shall, on its mere production, at any judicial proceedings be evidence of the taking place of anything, which according to that document took place at that meeting.

[52] Having regard to the foregoing, I am satisfied that the applicant failed to make out a case that the Council made a decision to impose conditions relating to the approval of its building plans.

[53] As regards the second part of the main relief sought, namely, that the Council be directed to approve the building plans within five days from the date of the order, such an order would amount to this court interfering with the Council’s statutory powers and duties. The Council’s pleaded case is that it cannot consider approval of the building plans because there are outstanding issues from the applicant’s side that need to be ironed out. That much is clear from Mr Van Rensburg’s email quoted earlier in this judgment.

[54] It is universally accepted that a decision maker should only make a decision after he or she had taken all the relevant factors into consideration.² The Council’s case is that it has not been furnished by the applicant with all relevant information to enable it to consider to approve or disapprove the applicants building plans.

[55] It follows thus that the main relief claimed in the amended notice of motion stands to be dismissed.

[56] I now turn to consider the alternative relief that is whether the applicant has made out a case for an order for a mandamus.

[57] It is to be recalled that in respect of the mandamus order sought, it was submitted that the Council is guilty of failing to comply with its statutory duties under regulation 8. It was argued that the Council has not given any cogent reason why it has refused to carry out its statutory duties within the mandatory period.

[58] In support of his submission, Mr Chibwana referred the court to Tumas Granite CC v The Minister of Mines and Energy and Another³, where the court said the following regarding the remedy of mandamus.

‘In an application for a mandamus, the court is generally not concerned with the reason why the administrative body or administrative official has not carried out its or his or her statutory duty: it is concerned with the allegation that it or he or she has failed or refused to exercise a statutory power and the applicant has been aggrieved by such failure or refusal. And a mandamus lies to serve two purposes: (a) to compel the performance of a specific duty; and (b) to remedy the effects of unlawful action already taken.

[59] Similarly, in Thornborn NO v Namibia Sports Commission and Another⁴, the court in dealing with an application for a mandamus order against a public official, stated the following:

‘An aggrieved person may under the common law succeed in compelling a functionary to perform an administrative act where that functionary is under a statutory duty to do so. This common law remedy flows from the common law remedy of review, thus described Innes CJ in Johannesburg Consolidated Investment Co v Johannesburg Town Council⁵ in the following terms:

“Whenever a public body has a duty imposed on it by statute, and disregards important provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of the duty, this court may be asked to review the proceedings complained of and set aside or correct them. This is no special machinery created by the Legislature: it is a right inherent in the Court, which has jurisdiction to entertain all civil causes and proceedings arising . . . in such a cause as falls within the ordinary jurisdiction of the Court.”’⁶

[60] Mr Hengari, correctly pointed out that the mandamus relief was an afterthought on the part of the applicant. This is because no basis for a mandamus relief was laid in both the founding affidavit and, more importantly, in the supplementary founding affidavit. It was raised for the first time in the heads of argument.

[61] Counsel referred the court to some judgments stressing the principle that pleadings define the issues between litigants and that the applicant is expected to make out his case in the founding affidavit. In Courtney-Clarke v Bassingthwaighte⁷, a judgment of the full bench of this court, the court said the following:

‘Secondly, it is trite that the pleadings define the issues between litigants and in the trial the parties should be confined thereto (reference to other cases omitted). As a consequence of the aforegoing, a litigant who wishes to rely on illegality must plead it. If he relies on a particular section of a statute, he must say so, but in addition to referring to the section he must plead those facts which entitle him to invoke the section (reference to other cases omitted).These requirements in respect of pleadings are the very essence of the adversarial system.’

[62] Similarly, in Otjozundu Mining v Purity Manganese⁸, the court expressed itself in the following words concerning pleadings in motion proceedings:

‘[66] The attempt by the applicant to introduce the report of land surveyor Engelhard in reply — apparently to give Van der Merwe's report a veneer of acceptability — is not permissible in motion proceedings. That should have been done in the founding papers. In motion proceedings the affidavits constitute both the pleadings and the evidence and the applicant cannot make out a particular cause of action in the founding papers and then abandon that claim and substitute a fresh and different claim based on a different cause of action in the replying papers’ (Reference to footnotes omitted)

[63] With those principles in mind, I proceed to consider the alternative relief, in the form of mandamus.

[64] The supplementary founding affidavit stated that its purpose was to supplement the grounds for review. The additional ground for review was stated to be that the Council was acting unlawfully by conflating the process of rezoning on the one hand and the process of building plans approval and by ‘wrongly interpreting the applicable law and facts’. It was then submitted that ‘on this limited basis the first respondent refusal to release the building plans should be reviewed and set aside’. Additionally, on the ‘basis of this additional ground of review that this Hounourable Court should direct the First Respondent to issue the building plans in respect of the property’.

[65] In the answering affidavit, the Council denied that it conflated the rezoning process and the conditions attached to the rezoning with the building plans approval process. It pointed out that it is enjoined to consider building plans and, if necessary, may impose conditions.

[66] The common law remedy of mandamus is discretionary. Undue delay on the part of an applicant, therefore, might adversely influence the court in the exercise of its discretion. Therefore, the review must be sought within a reasonable time. In Welgroeierrs Afslaer (Edms) Bpk v Munisipaliteit van Kaapstadt⁹, the appellant had delayed for three years and a half before seeking to challenge the decision of the provincial authority, in court. The court dismissed the application holding that there had been unreasonable delay in instituting the review application.

[67] In the present matter, the applicant delayed for four years to seek an order to challenge the Council’s alleged refusal to consider the approval of its building plans. Mr Hengari correctly pointed out in his written submissions that the applicant knew that the Council had to signify its approval or disapproval of the building plans within 28 days or a maximum of 35 days from the date of submission. It is common cause that the building plans were submitted in March 2020. Accordingly, the applicant ought to have applied for mandamus already four years ago, by April or May 2020. Furthermore, it waited another eight months from 22 September 2022 to April 2023 when it filed its amended notice of motion to introduce the alternative relief of mandamus.

[68] An allegation is made in the supplementary founding affidavit that the Council is refusing or neglecting to carry out its statutory duties. However, there is no attempt by the applicant to show or demonstrate how the Council refused or neglected to approve or disapprove the building plans for a period of four years. For this reason alone, this court is entitled to decline to exercise its discretion to issue a mandamus in favour of the applicant.

[69] In respect of the allegation that the Council is unlawfully and wrongfully interpreting the applicable law and facts, it is generally accepted that a public authority is the final arbiter of facts. In regards to error of law made by a public authority, courts have recognised that not every error of law made by a public authority is reviewable.¹⁰ In Administrator S.W.A v Jooste Lithium Myne (Edms) Bpk¹¹, the High Court of South West Africa had disagreed with the interpretation of the regulations by the Administrator in the exercise of his power and placed its own interpretation on the regulations. On appeal, the Appellate Division held at 569 D-E that:

‘It is for the Administrator to decide any legal issue involved in a dispute as to the pegging of a claim, and most importantly legal issues in the interpretation of the regulations. It cannot be said that the wrong interpretation of the regulations would prevent the Administrator from fulfilling its statutory functions or from considering the matter left to it for decision. On the contrary, in interpreting the regulations the Administrator is actually fulfilling the function assigned to it by the statute, and it follows that the wrong interpretation of the regulation cannot afford any ground for review by the court.’

[70] I fully agree with the legal position as expounded by the Appellate Division in the above matter and accept it as good law.

[71] There is no allegation nor suggestion that the Council refused to apply its mind or to consider the matter. The position is, assuming that the interpretation contended by the applicant is correct, all that is there is that the Council honestly misinterpreted the Regulations. It would not be the first time that a statutory provision is misread or misinterpreted nor would it be the last. That would amount to an error of law. The applicant does not allege that the Council is acting mala fide or deliberately in misinterpreting the Regulations to prejudice the applicant.

[72] Baxter (ibid) says the following (at p 470) on the question of whether all the errors of law should be reviewable:

‘Lawyers strongly incline to the view that courts should have the final say in matters of law. But we have seen, the courts have refused to go so far as to hold that all errors of law are reviewable; instead the error must be such as to have led the decision-maker to misconceive his power s or to have prevented him from properly exercising them.’

[73] I associate myself with the above view as expressed by the learned author and I equally accept it as good law. In the present matter, it is not the applicant’s case that the Council has misconceived its power. Instead the applicant’s case is that the Council has refused to release the building plans because it has misinterpreted the applicable regulations.

[74] As for the judgments referred to and relied upon by Mr Chibwana, Mr Hengari for the Council correctly pointed out that reliance on Tumas Granite is misplaced. That is because in that matter, the respondent had admitted that it did not consider the application, because by doing so it would contravene the moratorium which was prevailing. The court rejected the respondent’s reason holding that the respondent must perform its statutory duty which was to consider the application and not to decide by not considering the application. In the present application, the application has not been considered, because there are outstanding matters which the applicant has to furnish or comply with. For that reason Tumas Granite is therefore distinguishable from the facts of this application.

[75] The court in Thornborn N.O (supra) dealt with the general legal principles relating to mandamus about which there is no dispute between the parties. The court had found that the applicant had failed to specify the section of the Namibia Sports Act 12 of 2003 which authorised and required the Sports Commission to take steps and exercise its duty against the Namibia Gymnastic Federation. That is not the issue in this application. The applicant has alleged that the Council had a duty to take steps in terms of regulation 8. That case is also not of assistance to the applicant in the present matter.

[76] The learned author, Baxter, however points out that it does not follow that because a public authority has a duty to decide whether or not to exercise its power, it always has a duty to act.¹² If its power is discretionary it might decide to take no action at all. It may do that if, in reaching its decision, it has properly taken into account all the relevant factors pertaining to its discretion. The learned author incidentally gives an apposite example closer to the facts of this application by stating that: ‘A local authority , for example , might legitimately refuse to grant planning permission in respect of the proposed building which it considers do not conform with its town planning scheme.’¹³ In this application I find that the Council has not refused to consider the applicant’s building plans. Instead, it says that it is waiting to be furnished with outstanding matters or information by the applicant.

Conclusion

[77] In view of the considerations and findings made herein, I have arrived at the conclusion that the applicant has failed to prove on a balance of probabilities that it is entitled to either the main relief or the alternative relief. The application thus stands to be dismissed.

Costs

[78] What remains is the issue of costs. The general rule is that costs follow the result. The applicant has been unsuccessful in its application and is therefore liable to pay the costs of the respondents, who opposed the application such costs to include the costs of one instructing and one instructed counsel.

The order

[79] In the result, I make the following order:

1. The application to review and set aside the Council’s purported decision is dismissed including the alternative relief seeking a mandamus order.

2. The applicant is to pay the costs of the respondents who opposed the application, such costs to include the costs of one instructing and one instructed counsel.

3. The matter is removed from the roll and is regarded as finalised.

___________________

H ANGULA

Deputy Judge-President

APPEARANCES

APPLICANT: T Chibwana

Instructed by E.K. Nangolo Incorporated,

Windhoek

1^ST & 3^RD RESPONDENTS: U A Hengari

Instructed by Kangueehi & Kavendjii Inc.,

Windhoek