Acasia Resorts (Pty) Ltd v Minister of Urban and Rural Development and Others (HC-MD-CIV-MOT-REV-2021/00074) [2025] NAHCMD 26 (4 February 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no.: HC-MD-CIV-MOT-REV-2021/00074

In the matter between:

ACASIA RESORTS (PTY) LTD APPLICANT

and

MINISTER OF URBAN AND RURAL DEVELOPMENT 1^st RESPONDENT

OANOB DAX INVESTMENT CC 2^nd RESPONDENT

REHOBOTH TOWN COUNCIL 3^rd RESPONDENT

Neutral citation: Acasia Resorts (Pty) Ltd v Minister of Urban and Rural Development (HC-MD-CIV-MOT-REV-2021/00074) [2024] NAHCMD 26 (4 February 2025)

Coram: RAKOW J

Heard: 5 December 2024

Delivered: 4 February 2025

Flynote: Condonation – Application – Must meet two requirements – An acceptable explanation – Prospects of success – Local Authority – Public interest – Value of information – Size of the property in dispute – Condonation granted

Summary: The applicant concluded a written lease agreement with the Government of the Republic of Namibia on 11 November 1994, which lease agreement covered four portions of land, specifically identified in the lease agreement. The leased land is situated around the Oanob Dam, which is in the Rehoboth district. During 2013, the members of the second defendant noticed an undeveloped piece of land at Oanob Dam and went to the Rehoboth Town Council, who owned the land, to enquire about who the occupant of the land was, as there was no sign of any occupation at that time. The Rehoboth Town Council indicated that the land belonged to them. The second defendant then made a proposal to the Rehoboth Town Council to purchase the land in order for them to develop the said land. This proposal was in principal approved in April 2014 and they proceeded with the surveying of the undeveloped land as well as the town planning.

The second defendant then submitted various applications, including an application to the Ministry of Urban and Rural Development for the establishment of a township to the Townships Board. This was done on 18 May 2017. On 8 August 2017, the applicant, appeared at a meeting of the Townships Board and objected to the approval of the Townships Board on the basis of a lease over the land. The applicant’s objection was overruled by the Township Board during meetings on 10 and 11 October 2017.

On 3 December 2018, the first respondent approved the second respondent’s application for a township establishment. On 30 July 2020, the Minister declared the land which the second respondent had purchased, to be an approved township in the local authority area of Rehoboth as published in Government Gazette 7309 of 14 August 2020. It is against this decision of the Minister that the instant review proceedings were instituted.

The applicant, however, failed to timeously file the supplementary founding affidavit and now seeks leave from the court to remove the bar and to condone the non-compliance. This application is opposed by the second respondent.

Held it is important to look at the explanation for the late filing and for that the explanation of the time periods offered by the applicant.

Held further it is in the public interest to know exactly the size of the property in dispute and for that reason, such information should be placed before the court.

Held further, the harm suffered by the second respondent is more of a general nature and the complaint will not necessarily be remedied by any order of this court.

Held condonation for the late filing of the supplementary affidavit is granted and the prejudice suffered can be cured by a cost order.

ORDER

1. The condonation application is hereby granted with costs of such an application awarded to the applicant. The costs are capped in terms of rule 32(11) and include the costs of one instructing and two instructed counsel.

2. The respondents must file their supplementary answering papers on or before 26 February 2025.

3. The matter is postponed to 04 March 2025 for a Status hearing.

JUDGMENT

RAKOW J:

Introduction

1. The applicant in the main matter is Acasia Resorts (Pty) Ltd, a private company registered under the laws of Namibia with its primary place of business at Lake Oanob Resort, Rehoboth district, Namibia. The first respondent is the Minister of Urban and Rural Development of the Republic of Namibia cited in his official capacity. The second respondent is Oanob Dax Investments CC, a Close Corporation registered under the laws of the Republic of Namibia, with its registered address at the 1^st Floor, Moth Center Building in Peter Müller Street, Windhoek. The third respondent is the Rehoboth Town Council, a Local Authority constituted in terms of s 6 of the Local Authorities Act 23 of 1992.

2. During a previous application, a number of defendants namely; the Environmental Commissioner; the Registrar of Deeds and the Chairperson of the Urban and Regional Planning Board were joined to this matter.

Background

3. The applicant concluded a written lease agreement with the Government of the Republic of Namibia on 11 November 1994, which lease agreement covered four portions of land, specifically identified in the lease agreement. The leased land is situated around the Oanob Dam, which is in the Rehoboth district. The lease agreement is for 50 years and includes an option for the applicant to extend the agreement for another 50 years. The applicant took occupation of the leased land in 1995 and has developed it since.

4. The third respondent is the legal successor of the Government of the Republic of Namibia’s title in the leased land.

5. During 2013, the members of the second defendant noticed an undeveloped piece of land at Oanob Dam and went to the Rehoboth Town Council, who owned the land, to enquire as to who is occupying the land as there was no sign of any occupation at that time. The Rehoboth Town Council indicated that the land belonged to them. The members of the second defendant further went to the Rehoboth Deeds Office to confirm that the land belonged to the Rehoboth Town Council and that there were no servitudes, leases or bonds registered over the approximately 245 hectares of land on the western side of the dam.

6. The second defendant then made a proposal to the Rehoboth Town Council to purchase the land in order for them to develop the said land. The proposal, dated 7 February 2014, offered to purchase the said land for N$5 000 000 from the Rehoboth Town Council. They proposed to build a lodge with conference facilities, recreational facilities, 20 luxury chalets and a real estate development consisting of 30 houses. This proposal was in principal approved in April 2014 and they proceeded with the surveying of the undeveloped land as well as the town planning.

7. The second respondent required NAMPAB approval for the development of the land as well as an Environmental Clearance Certificate, Townships Board approval and Town Planning Establishment Certificates. These applications were submitted including the application to the Ministry of Urban and Rural Development for the establishment of a township to specifically, the Townships Board. This was done on 18 May 2017. On 8 August 2017, Mr Shikongo on behalf of the applicant, appeared at a meeting of the Townships Board and objected to the approval of the Townships Board on the basis of a lease over the land.

8. The applicant’s objection was overruled by the Township Board during a meeting of 10 and 11 October 2017. On 3 December 2018, the first respondent approved the second respondent’s application for a township establishment. On 30 July 2020, the Minister declared the land which the second respondent had purchased, to be an approved township in the local authority area of Rehoboth as published in Government Gazette 7309 of 14 August 2020. It is against this decision of the Minister that the review proceedings were instituted. They did not remain idle and attempted to source alternative counsel but could not procure such services in time.

The condonation application

[9] On 30 April 2024 the court ordered the following:

‘1. Supplementary founding affidavit to be filed on or before 11 June 2024.

2. Answering affidavit to be filed on or before 26 July 2024.

3. Replying affidavit, if any, to be filed on or before 22 August 2024.

4. Parties must file a JOINT case management report on or before 5 September 2024.

5. The case is postponed to 10/09/2024 at 15:30 for Case Management Conference hearing (Reason: Parties to file case management conference report).’

[10] The applicant did, however, not file the supplementary founding affidavit before 11 June 2024. In fact, it was filed on 8 August 2024. The applicant now seeks leave from the court to remove the bar and to condone the non-compliance with the court order of 30 April 2024. This application is opposed by the second respondent.

[11] It was explained by the Managing Director of the applicant, that the legal practitioner of the applicant, Mr. Brendell is in a better position to explain the cause of the delay. He in turn explained that their offices prepared a brief to their counsel on the matter, Adv. Maasdorp and Adv. Heathcote. The practice is, however, that the junior counsel, being Adv. Maasdorp, attends to the matter. Their offices followed up with Adv. Maasdorp on 10 May 2024 and 3 June 2024, respectively. They further attempted to uplift the records from the Reboboth Deeds registry and compare the same to the filed record. They also consulted conveyancers to produce a position to advance in the supplementary affidavit.

[12] On 8 June 2024, Adv. Maasdorp conveyed to them that he was indisposed for the month of May and part of June 2024 and could not attend to finalize the supplementary affidavit in time. This was conveyed to the respondents who indicated that they intend to oppose the application the applicant wished to bring. The legal practitioner immediately started to study the record and filed applications after learning of Adv. Maasdorp’s non-availability and could only produce a draft document on 24 June 2024. Adv. Maasdorp again indicated on 29 July 2024 that despite his attempts to finalize the papers, he was unable to meaningfully apply his mind to ensure the draft papers are finalized. He then withdrew from the matter entirely. Adv. Heathcote was then directly engaged since 29 July 2024 and the papers were finalized on 7 August 2024 and signed and commissioned on 8 August 2024 and then filed.

[13] The applicant raised an irregularity as perpetrated by the fifth respondent which irregularity was raised in the supplementary affidavit for the first time and which warrants an opportunity to be ventilated. This irregularity pertains to real rights and its registration thereof, which affects persons, land and the public at large also noting the nature of the dispute at hand.

The arguments by the parties

[14] On behalf of the applicant, it was argued that the delay was about seven weeks and that the said delay was explained by the legal practitioner of the applicant, including what was done during the time, like consultations with conveyancers as well as trying to uplift records from the Rehoboth Deeds Office. The arguments further pointed out that the affidavits filed of record reveal that the applicant has good prospects of success in the main application.

[15] The applicant states that the Minister’s attempt to explain the alleged irregularities he committed strengthened the applicant’s case because the Minister claims that he was not required to consider the merits of the objections before the Townships Board or the substantive correctness of the latter’s recommendation. The Minister alleges that he did consider the reasons advanced by the Townships Board and found those reasons persuasive under circumstances where the record reveals that the Townships Board did not provide a single reason for declining the objections which served before it. It is alleged that the Minister did not appreciate the nature and import of the duty resting on him when faced with a Township’s Board recommendation, and he failed to apply his mind.

[16] The application is opposed by the second respondent. In opposition, the second respondent adopts a clinical approach, which amounts to nothing more than a technical ‘point-taking’ exercise, which is most unhelpful and not in the interest of expedience, leaving nothing with which it does not take issue.

[17] The following factors also, the applicant submits, weigh heavily in favour of granting condonation:

1. The period of the delay was fully explained – and explained further in reply;

2. The review application will proceed, irrespective of the outcome of this application;

3. Vis-à-vis the applicant and the remaining respondents, the issues raised in the supplementary founding papers remain alive irrespective of whether condonation is granted since the discrepancies in the land description and extent will continue to differ materially;

4. Had it not been for the long-winded opposition to this application, the parties could, by now, have finalised the exchange of papers and commenced preparing a case management report;

5. Any delay beyond the initial seven-week period cannot be attributed to the applicant;

6. The delay was fully explained.

7. Sometimes, deadlines are missed not due to a wilful disregard of court orders. (The applicant specifically refers to how the second respondent’s legal practitioner of record was, in the past, struck down by COVID-19; so too do litigants and practitioners, at times, experience unfortunate personal and professional circumstances that affect their ability to meet deadlines. The reality is that humans are fallible and sometimes fail.)

8. The applicant has demonstrated that it has prospects of success in the main application and why it must file the supplementary founding affidavit.

9. The applicant tenders the costs occasioned by the condonation application. (Given the extent of opposition, however, the applicant submits the second respondent should be deprived of the costs of its unreasonable opposition to the application.

[18] For the second respondent, it was argued that the adjudication of the current dispute between the parties has been delayed for almost eight years now to the severe prejudice of the second respondent. This is the third time that the applicant seeks condonation from this court for non-compliance with a court order. Initially this application was instituted in July 2017 until February 2022 when it was withdrawn. During that delay, the applicant failed to file witness statements and when the matter proceeded on trial, failed to call any witnesses. The second respondent entered into a settlement agreement in which it was agreed that the second respondent will not start with development on the relevant land, pending the final determination of a review application (the current application).

[19] Due to further delays, the review application is after almost four years nowhere near finalisation. The applicant disregarded the court’s order of 1 March 2022 to file its supplementary affidavit which resulted in the first condonation application. Then again to file its replying affidavit on or before 17 August 2022. On 24 October 2022, this court ordered the applicant to file its joinder application and an application to amend by 4 November 2022 which order was also disregarded and the applicant further failed to file its replying affidavit by 10 February 2023. The current failure is the latest one in a long line of failures to act on time.

[20] It was further argued that the long delay in this matter is to the financial detriment of the second respondent and Mr Derks as the land was purchased with money raised by a loan from Standard bank. Additional costs include indebtness to Urban Dynamics and Strydom & Associates Land Surveyors. Because the land cannot be developed and sold, these debts remains outstanding.

Discussion on condonation application

[21] In dealing with a delay in explanation for an amendment to pleadings the court in the matter of Pharmaceutical Society of Namibia v Pharmacy Council of Namibia¹ said the following, which is also applicable in condonation applications:

‘[39] In Gecko Salt² the court said: ‘The applicant was under an obligation to give a full and detailed explanation and not hold back any or further reasons or facts that explain the delay, as it appears to have decided in its wisdom. In my view, the explanation suffers from candour and forthrightness to justify an indulgence from the Court.’

[22] Regarding the decision whether to grant condonation or not, the application must meet two requirements. In the matter of Telecom Namibia Limited v Mitchell Nangolo & 34 Others³ Damaseb JP identified the following as principles guiding applications for condonation:

‘1. It is not a mere formality and will not be had for the asking. The party seeking condonation bears the onus to satisfy the court that there is sufficient cause to warrant the grant of condonation.

2. There must be an acceptable explanation for the delay or non-compliance. The explanation must be full, detailed and accurate.

3. It must be sought as soon as the non-compliance has come to the fore. An application for condonation must be made without delay.

4. The degree of delay is a relevant consideration;

5. The entire period during which the delay had occurred and continued must be fully explained;

6. There is a point beyond which the negligence of the legal practitioner will not avail the client that is legally represented. (Legal practitioners are expected to familiarize themselves with the rules of court).

7. The applicant for condonation must demonstrate good prospects of success on the merits. But where the non-compliance with the rules of Court is flagrant and gross, prospects of success are not decisive.

8. The applicant’s prospect of success is in general an important though not a decisive consideration. In the case of Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein and Others, Hoexter JA pointed out at 789I-J that the factor of prospects of success on appeal in an application for condonation for the late notice of appeal can never, standing alone, be conclusive, but the cumulative effect of all the factors, including the explanation tendered for non-compliance with the rules, should be considered.

9. If there are no prospects of success, there is no point in granting condonation.’

[23] In the matter of South African Poultry Association and Others v Minister of Trade and Industry and Others⁴, Smuts JA said the following regarding the granting of condonation:

‘[58] In deciding whether or not to grant condonation after finding that a delay is unreasonable, the criterion to be applied under the common law is the interests of justice, as was recently reiterated by the South African Supreme Court of Appeal (SCA) in South African National Roads Agency Ltd v Cape Town City (SANRAL).⁵ In determining this question, the SCA reaffirmed that regard should be had to all the facts and circumstances.

[59] The SCA also referred to the decision of the Constitutional Court in Khumalo and Another v MEC of Education, KwaZulu-Natal 2014 (5) SA 579 (CC) (2014 (3) BCLR 333; [2013] ZACC 49) para 57, where the latter court stated:

'An additional consideration in overlooking an unreasonable delay lies in the nature of the impugned decision. In my view this requires analysing the impugned decision within the legal challenge made against it and considering the merits of that challenge.'

[60] The SCA in SANRAL further found that although the delay issue in reviews should first be dealt with before the merits of the review are entertained, this —

“cannot be read to signal a clinical excision of the merits of the impugned decision, which must be a critical factor when a court embarks on a consideration of all the circumstances of a case in order to determine whether the interests of justice dictate that the delay should be condoned. It would have to include a consideration of whether the non-compliance with statutory prescripts was egregious.”

[61] Further factors would include the prejudice suffered by the administrative functionary — in this case the minister — and the need for certainty, particularly in respect of a trade measure of the kind in question, the extent and cause of the delay, the reasonableness of the explanation for it, the effect on the administration of justice, the importance of the issue raised and the prospects of success. A further factor could be whether the failure to launch the application within a reasonable time was in good faith.

[62] The public interest is plainly served by bringing certainty and finality to administrative action or the exercise of public power of the kind in question — where the minister invokes a power within a statute to regulate trade by way of a restriction upon imports which at the very least can be challenged on legality grounds of not having been taken within the confines of the Act and would thus not be lawful. A decision of this nature in implementing economic policy though legislative powers has wide implications — including budgetary, in the form of balance of payment consequences, and the pursuit of employment creation. The prejudice to NPI would also need to be considered. But as Mr Unterhalter pointed out, much of the investment in setting it up was effected before the notice was published. Nonetheless, there would be some prejudice in a delay to a challenge to the notice, as was investigated in some detail by the High Court.’

Discussion

[24] The applicant approached this court with a condonation application for condoning the late filing of the supplementary founding statement. This is, however, not the first time the applicant is not adhering to court orders. It is, however, important to look at the explanation for the late filing and for that the explanation of the time periods offered by Mr. Brendell. The court further took note of the loss Adv. Maasdorp suffered, although not referred to in the papers, but the court was alerted to it by Adv. Heathcote who argued on behalf of the applicants.

[25] In Municipal Council of Windhoek v Gernot Albert Bahr⁶, the court referred to the public interest that might vest in the application sought. The court said the following:

‘there are weighty factors present in this matter, ie the public interest nature

of the matter where a local authority seeks to enforce subordinate legislation governing land use where a breach is unlawful and can amount to an offense, this is not a proper case to refuse condonation due to the inadequacy of the explanation without considering the prospects of success of the appeal.’

[26] It is, therefore, important to look at the nature of the additional information proposed to be covered by the affidavit of the applicant. Is it in the public interest and if so, what is the value of the said information. In this instance, I find that it is indeed in the public interest to know exactly the size of the property in dispute and for that reason, I find that such information should be placed before the court.

[27] The complaint of the second respondent is in general related to the time period that has lapsed since the beginning of this dispute and the money that the second respondent already spent on this project. The harm suffered by the second respondent is, therefore, more of a general nature and the complaint will not necessarily be remedied by any order of this court.

[28] I am, therefore going to grant condonation to the applicant for the late filing of the supplementary affidavit and the prejudice suffered can be cured by a cost order.

[29] I therefore, make the following order:

1. The condonation application is hereby granted with costs of such an application awarded to the applicant. The costs are capped in terms of rule 32(11) and include the costs of one instructing and two instructed counsel.

2. The respondents must file their supplementary answering papers on or before 26 February 2025.

3. The matter is postponed to 04 March 2025 for a Status hearing.

----------------------------------

E RAKOW

Judge

APPEARANCES

APPLICANT: R Heathcote SC (with him R Maasdorp and A Brendell)

Instructed by Shikongo Law Chambers, Windhoek

RESPONDENTS: G Totemeyer SC (with him G Dicks and A Naude)

Instructed by Office of the Government Attorney, Windhoek