Court name
High Court Main Division
Case number
APPEAL 317 of 2011
Case name
Municipal Council of Windhoek v Hansen
Media neutral citation
[2013] NAHCMD 14
Judge
Schimming-Chase AJ





IN THE HIGH COURT OF NAMIBIA







NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT








Case no: A 317/2011













In the matter between:








THE MUNICIPAL COUNCIL OF WINDHOEK
.......................................APPELLANT



and



JOHN HEINRICH HANSEN
................................................................RESPONDENT








Neutral
citation:
The Municipal Council of Windhoek v Hansen (A
317/2011) [2013] NAHCMD 14 (25 January 2013)








Coram: Schimming-Chase, AJ



Heard: 18 January 2013



Delivered: 25 January 2013








Flynote: Application for an
order to remove illegal structures situated on respondent’s erf
– Principles relating to how a court will deal with a dispute
of fact where denials are bald and unsubstantiated, alternatively not
genuine or bona fide when onus on respondent restated.








Flynote: Waiver –
Principles relating to proof of waiver and onus restated.



Flynote: Practice –
annexures to affidavits, principles relating to how annexures are to
be identified and referred to restated.








Summary: The applicant
municipality applied for an order directing the respondent to remove,
alter or pull down illegal structures on the respondent’s erf,
which structures were not built according to approved building plans
and which also had been constructed on top of the applicant’s
main sewer line. The respondent denied that there were illegal
structures present on his erf, and alleged that the applicant had
waived its rights to apply for the aforesaid relief because the
parties had agreed that instead of removing the structures the
respondent would maintain the sewer line at his own costs.








Held – The respondent had
not laid any basis or facts in support of its contention that the
applicant had waived its rights. Respondent’s bald denial that
there were illegal structures in light of indications on annexures
containing the building plans, which structures had not complied with
the approved building plans not sufficient to raise a real and
genuine dispute of fact. Application accordingly granted.










ORDER












    1. The respondent is directed to
      remove, pull down or alter the unlawful structures erected on Erf
      1582, Tauben Street, Hochland Park, Windhoek, in particular the
      Garage, Swimming Pool and Lapa within
      30 days of service of
      this order.












    1. In the event of the respondent
      failing to comply with the above order, the applicant is authorised
      to remove, pull down or alter the aforesaid structures at the
      respondent’s costs.












    1. The respondent is ordered to pay the
      costs of this application, such costs to include the costs of one
      instructing and one instructed legal practitioner.







JUDGMENT










SCHIMMING-CHASE, AJ









  1. This is an application launched by
    the Municipal Council of Windhoek (“the applicant”) for
    an order directing the respondent to remove, pull down or alter
    certain unlawful structures erected on the respondent’s
    property at Erf 1582, Tauben Street, Hochland Park, Windhoek within
    30 days of service of the order and in the event of non-compliance
    with the order, authorising the applicant to demolish the said
    unlawful structures.










  1. In support of the relief sought, the
    applicant alleged that on
    11 August 2011, it became aware
    through its Senior Building Inspector and the deponent to the
    founding affidavit, Oelof Loots that the respondent had erected
    structures on his erf without building plans for those structures
    having been approved by the applicant, in contravention of
    Regulation 25 of the applicant’s Municipal Building
    Regulations promulgated by GN 57 of 1969, published in Government
    Gazette No 2992 of 28 April 1969. For ease of reference, I quote
    Regulation 25 in full:









BUILDING
WITHOUT APPROVAL OF PLANS








25.
(a) Any person who erects a building –









  1. without
    the plans or the material of the building having been approved by
    the Council, in accordance with regulation 8; or










  1. in
    respect of which the approval of the plans by the Council has lapsed
    in terms of regulation 9,









shall
be guilty of an offence.








(b)
The Council may under any of the circumstances mentioned in
subregulation (a) serve upon the owner of any building referred to in
the said subregulation as the case may be, an order requiring such
owner forthwith to begin to demolish such building and to complete
such demolition by or on a date to be specified in such order which
date may be extended by the Council.








(c)
If before the date for completion of the demolishing required by such
order such owner satisfies the Council that he has complied with its
regulations the Council may withdraw such demolition order.








(d)
If any owner fails to comply with an order referred to in
subregulation (b) of this regulation, the Council shall be entitled
to give effect to the terms of such order at the expense of such
owner.”









  1. In this regard, Mr Loots authored a
    statement dated 19 August 2011 where he stated the following:









“ …..
during a site inspection on erf 1582 Hochland Park, it was realised
that additions were constructed without building plans been (
sic)
approved for such structures. It was also realised that on the
approved plan for the garage building, a deviation happened during
the construction process and therefor the building is also built
without an approved plan. All of this (
sic)
additions were constructed on top of the main municipal sewer line.
After the attached letter was served upon the owner, he started with
correspondence with Mr C de Waal (Section Engineer: Bulk and Waste
Water), who informed him, that no alternative exist (
sic)
other than to move the existing municipal sewer to the outside of his
erf or to demolish the said structure. Both options will be for the
account of the owner of erf 1582 Hochland Park.








To
date nothing was done to rectify the situation.”









  1. The applicant annexed the approved
    building plans of the respondent’s erf 1582 to the founding
    papers. The annexure containing the approved building plans
    comprises two pages, both depicting the same building plans. The
    first page contains handwritten notes, depicting a portion of the
    garage, a swimming pool and a lapa which were not part of the
    approved structures on the building plans. On the second page, boxes
    drawn in red colour were drawn on the approved building plans
    indicating where the “illegal”
    structures were situated. Those “illegal”
    structures were only formally identified in the replying affidavit
    as a swimming pool, a lapa and a garage, i.e. no allegation is
    contained in the founding papers indicating what the “illegal”
    structures are apart from the markings on the building plans
    referred to.










  1. On 9 March 2011 already, the
    applicant, through Mr Loots, transmitted a notice under the
    applicant’s Department of Planning, Urbanisation and
    Environment titled “Order
    Under Regulation 25(b) of the Council’s Building Regulations:
    Demolition Order: Erf 1582 Hochland Park Illegal Structures”
    .
    In this notice, the respondent (who received the notice on the same
    date) was informed that he had constructed additions and alterations
    to the existing buildings on his erf without a building plan having
    been approved in respect of such structures. The respondent was also
    informed that “It was
    also realised that the structures were build
    (sic) over
    the municipal main sewer line”
    .










  1. The respondent was directed in this
    notice to immediately begin with demolition of the structures within
    28 days, but was informed that under the provisions of Regulation
    25(c) of the Building Regulations read with Article 18 of the
    Namibian Constitution the respondent had the opportunity to submit
    written reasons within 3 days why the demolition order should not be
    executed, or alternatively to submit within the stipulated period,
    building plans for approval of the illegal structure as well as an
    engineering certificate that the structure was constructed according
    to accepted building standards. Finally the respondent was warned
    that should he fail to act under Regulation 25(c) or fail to
    demolish the structure within 28 days the applicant would invoke the
    provisions of
    clause 25(d) of the Municipal Building Regulations
    and demolish the illegal structures at the respondent’s costs.










  1. On 19 April 2011 the applicant,
    through its Department of Infrastructure, Water and Waste Management
    delivered another letter to the respondent. This letter is titled
    Relocation of sewer line
    in Erf 1582 Hochland Park”
    . In this letter the
    respondent was informed that “permanent
    structures”
    had been erected over the municipal sewer
    line running within his erf along the eastern boundary without
    approved building plans. The letter was signed by one JJ de Waal,
    the Section Engineer: Engineering Services and the respondent also
    signed receipt for the letter.










  1. This letter also stated inter alia
    the following:









In
an attempt to retain access to this line for maintenance purposes the
City investigated numerous options and we are willing to relocate the
sewer line outside your erf with a partial contribution from the
owner of N$7500. We will also provide a new sewer connection point on
the new line and it is the owner’s responsibility to connect to
this point as soon as possible.








...








Should
you choose not to contribute we will have to request you to remove
all unapproved permanent structures on your erf to allow for
maintenance of the sewer line.”









  1. The respondent was advised to provide
    proof of payment of the N$7,500.00 by close of business on 31 May
    2011.










  1. The applicant alleged that the
    respondent failed to act as per the letter dated 19 April 2011 and
    instead delivered a letter dated 31 May 2011 to the applicant, which
    it is alleged did not comply with the requirements of the letter
    dated 19 April 2011. This letter of the respondent was addressed to
    JJ de Waal at the Department of Infrastructure, Water and Waste
    Management of the applicant. It stated the following:









Relocation
of sewer line in Erf 1582 Hochland Park








With
reference to your letter dated April 19th, 2011 herewith
my response.








After
a lengthy discussion between my neighbours, Mr Petersen, who also
received a letter from the City of Windhoek, and myself we came to
the conclusion that the option of taking responsibility to keep
the drain clean in case of blockage would suit us best.








In
an earlier letter delivered to both Mr Petersen and myself by Mr
Loots of the City of Windhoek, one of our options were to clean the
drain on our own cost in case of blockage, therefore, we hereby
confirm that in event of that happening we will be responsible to
clean the drain of blockage on our own cost.



(emphasis supplied)









  1. In light of the foregoing it was
    submitted that the respondent failed to comply with the “notice
    or order”
    and failed to submit written reasons within

    3 days from the date of that letter why the order should not be
    executed. It is further submitted that the respondent also failed to
    submit within the period stipulated building plans for approval of
    the illegal structures as well as an engineering certificate that
    the structure was constructed according to accepted building
    standards, as a result of which the applicant was duty bound to
    invoke Regulation 25(d) of the Municipal Building Regulations and
    demolish the illegal structure at the respondent’s costs.










  1. In the respondent’s answering
    affidavit he denied that the buildings were built in contravention
    of the Regulations. The respondent also denied that the applicant
    complied with the requirements of the Municipal Building Regulations
    in particular with regard to the procedures and time periods
    provided therein. Apart from this bald denial and bare allegation of
    non-compliance with time periods, nothing further was alleged to
    substantiate this allegation and counsel appearing on behalf of the
    respondent did not argue this aspect any further.










  1. The respondent further alleged that
    in respect of the building plans the applicant itself had approved
    the applicant’s plan in respect of constructing “the
    structure”
    on top of the sewer line and that the
    applicant could not use its own negligence to the respondent’s
    prejudice. The respondent further alleged that the applicant had
    waived any rights it may have had because of “...
    the agreement reached between the parties in relation to the options
    that were given to me and my neighbour”
    . Accordingly,
    the respondent submitted that the applicant was therefore in any
    event not entitled to the relief sought given the agreement reached
    between the parties. He stated further that there was no credible
    evidence except the “mere
    say so that there is any consideration of the regulations”
    .










  1. The respondent also stated the
    following in amplification in his answering affidavit:









From
the correspondences attached by the applicant it is clear that the
parties reached an agreement that I and my neighbour had to chose the
third option which was for my building to remain intact and that my
neighbour and I at our costs would maintain the sewer line over which
our buildings were constructed with the approval of the applicant.
That being the case the applicant is not entitled to now renege from
the agreement reached. The fact that we took that option has been
agreed upon between myself, Mr Loots as well as Mr De Waal. It was
orally agreed without prejudice to my rights and without admitting to
non-compliance that, in that case, I do not need to remove part of my
building being complained of.”









  1. The respondent specifically alleged
    that although the letter dated
    19 April 2011 authored by Mr de
    Waal appeared to be at odds with the allegations quoted above, he
    stated emphatically that it was agreed that he and his neighbour
    would maintain the sewer lines at their own cost. There is no
    confirmatory affidavit from the respondent’s neighbour.










  1. The affidavits delivered on behalf of
    both parties leave a lot to be desired. The facts set out in the
    papers on both sides are sparse. No attempt was made to either
    properly amplify the facts in support of the relief sought by the
    applicant or to direct the court’s attention to the specific
    passages of correspondence annexed to the founding affidavits it
    wished the court to consider. The respondent also did not annex any
    documentation in amplification of its opposition which I deal with
    below. I therefore reiterate the principle set out in Port
    Nolloth Municipality v Xhalisa; Luwalala v Port Nolloth Municipality

    1
    that the annexures to an affidavit are not an integral part of it,
    and an applicant cannot justify its case by relying on facts which
    emerge from annexures to the founding affidavit but which have not
    been alleged in the affidavit and to which the attention of the
    respondent has not been specifically directed. I also quote with
    approval the principles relating to the contents of affidavits
    generally set out in Swissborough Diamond Mines (Pty) Ltd v
    Government of the Republic of South Africa
    2
    as follows:









It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court but also to define the issues
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of the Court but also,
and primarily, for the parties. The parties must know the case that
must be met and in respect of which they must adduce evidence in the
affidavits.”














  1. It was also held in the above matter
    3
    that it is not open to an applicant or a respondent to merely annex
    to its affidavit documentation and to request the court to have
    regard to it. What is required is the identification of the portions
    thereof on which reliance is placed and an indication of the case
    which is sought to be made out on the strength thereof.










  1. I now turn to deal with the various
    factual allegations which I am to consider.










  1. As stated above, the respondent
    denied that any illegal structures were present on erf 1582 Hochland
    Park. No further allegations in respect of this denial were
    advanced. Furthermore, as regards the structures built on the sewer
    line, the respondent stated that the applicant had approved the
    respondent’s plans to construct on the sewer line. No response
    was provided to the statement of Mr Loots annexed to the founding
    affidavit to the effect that it was also realised that on the
    approved plan for the garage, a deviation happened during the
    construction process and the respondent moved the construction of
    the garage and constructed it an alternative place which was not
    approved by the applicant and further that all the additions were
    constructed on top of the sewer line. The respondent did not state
    for example that the structures depicted on the building plans as
    illegal had not been built on his erf, which would have raised a
    genuine dispute of fact. He also did not deny the allegation that
    there was a deviation during the construction process resulting in
    the garage being constructed at a different place not approved by
    the applicant. All the respondent stated was that there were no
    illegal structures on his erf.










  1. In the absence of a response to this
    statement, coupled with a bare denial that there were illegal
    structures on the respondent’s erf, the statement of Mr Loots
    thus stands unchallenged. It is also borne in mind that Regulation 6
    of the Municipal Building Regulations provide inter alia that
    every person intending to erect a building must apply to the
    applicant for approval of the building plans. The building plans
    annexed to the founding papers were approved by the applicant, and
    the illegal structures were drawn on those approved building plans.
    It is clear in my view that the respondent should have provided a
    proper response to those allegations.










  1. The respondent also raised the issue
    that the applicant had waived its rights to act in terms of the
    notice due to an oral agreement reached between the respondent and
    his neighbour, one Mr Petersen, and Messrs Loots and
    De Waal on
    behalf of the applicant to the effect that instead of the respondent
    covering part of the cost of removing the sewer line, the respondent
    could choose a third option for his buildings to remain intact and
    that he would at his costs maintain the sewer line. Mr loots denied
    this allegation in his replying affidavit. No such option is
    provided in the correspondence referred to, yet the respondent
    stated that even if the earlier correspondence appeared to be at
    odds with his version, he persisted with his stance that the
    agreement referred to above was indeed concluded between the
    parties.










  1. It is well established that the onus
    rests on the party relying on a waiver throughout to allege and
    prove the waiver on a balance of probabilities and that in assessing
    the probabilities, the factual presumption that a party is not
    lightly deemed to have waived his or her rights should be borne in
    mind. Clear evidence of a waiver is required. 4










  1. The respondent has clearly not set
    out the requisites to prove a waiver. The respondent can also not be
    assisted by the Plascon-Evans Rule because the respondent
    drew the onus in this regard and did not put up sufficient facts to
    discharge the onus or to raise a real, genuine or bona fide
    dispute of fact either.5










  1. What remains to be determined is
    whether there are illegal structures at the respondent’s erf.
    Apart from the bare denial that there were illegal structures, the
    respondent only stated that the applicant had approved the
    applicant’s plan in respect of constructing the “structure”
    on top of the sewer line. As previously stated the respondent
    did not deal with the allegation, in particular the statement of
    Loots dated 19 August 2011 to the effect that there were deviations
    in the construction process on the approval plan of the garage and
    that all the additions were constructed on top of the main municipal
    sewer line. I point out that the respondent’s attention was
    not specifically drawn to that portion of Mr Loots’ statement
    in the founding affidavit, however it cannot be ignored that the
    statement was an annexure. That statement was made in about 10
    lines. The respondent further had an opportunity to respond to those
    allegations and simply did not.










  1. The applicant only formally
    identified the “illegal”
    structures as a swimming pool, lapa and garage in the replying
    affidavit. Counsel for the respondent submitted that the structures
    should have been identified in the founding papers and not in reply.
    He did not apply to strike these averments but submitted that on the
    principle that the applicant must make out its case in the founding
    papers, the court should ignore the reference to the structures in
    reply. In this regard, counsel for the respondent raised for the
    first time in his heads of argument the issue that because the
    illegal structures were not identifiable, the court could not make
    an order as it would lead to ambiguity. In support of his argument,
    counsel for the respondent relied on the unreported judgment of this
    court in Rally for Democratic Progress v The Electoral Commission
    of Namibia
    6
    as well as the case of Gates v Gates 1939 AD at 150 which was
    approved in the Rally for Democratic Progress case. The only
    reference I find to the Gates case in that case is at
    paragraph 200 where the court stated that it is trite that the more
    serious the allegations, the stronger the evidence must be before a
    court will find the allegation established. This is what was held in
    Gates and approved in the Rally for Democratic Progress
    case in support of the principle that an allegation of an
    irregularity or corrupt practice affecting the outcome of an
    election is not one to be taken lightly. The facts of that case are
    not applicable to this matter and the principle is thus submitted
    out of context.










  1. In any event, though the structures
    were mentioned in the replying affidavit for the first time, the two
    copies of the building plans annexed to the founding papers
    indicated via markings and handwriting that the issue the applicant
    had was with the new garage as well as the pool and a lapa. They
    were also outlined in red boxes in the second copy of the building
    plans annexed to the founding papers. In this regard I hold the view
    that the markings and drawings could have been identified with more
    clarity in the founding affidavit with regards to the particular
    annexures. However the formal mention of the structures in the
    replying affidavit in my view fortified the allegations in the
    founding papers and was not strictly new matter. Coupled with the
    bare denial of the presence of illegal structures I hold the view
    that the alleged structures and their situation on a public sewer
    line were identified on a balance of probabilities by the applicant.










  1. It is clear that the applicant has
    the power in terms of regulation 25 of the Municipal Building
    Regulations to serve on the owner of a building who has erected a
    structure without approval of the building plans an order requiring
    the owner to demolish the buildings, failing which it may do so
    itself. The respondent failed to comply with the notice, in
    particular to provide the applicant with written reasons why the
    order should not be executed, or to submit building plans for the
    approval of the illegal structures as well as an engineering
    certificate that the structure was constructed according to accepted
    building standards.










  1. I accordingly find that the applicant
    has made out a case for the relief sought on a balance of
    probabilities, and that the application should be granted with
    costs, as costs follow the event.










  1. In the result the following order is
    made:











    1. The respondent is directed to
      remove, pull down or alter the unlawful structures erected on Erf
      1582, Tauben Street, Hochland Park, Windhoek, in particular the
      Garage, Swimming Pool and Lapa within 30 days of service of this
      order.












    1. In the event of the respondent
      failing to comply with the above order, the applicant is authorised
      to remove, pull down or alter the aforesaid structures at the
      respondent’s costs.












    1. The respondent is ordered to pay the
      costs of this application, such costs to include the costs of one
      instructing and one instructed legal practitioner.

























______________________



EM SCHIMMING-CHASE



Acting Judge


















APPEARANCES








APPELLANT: Adv TC Phatela (with him
(Mr C Kavendjii))



Instructed by Hengari, Kangueehi &
Kavendjii Inc








RESPONDENT: Mr S Namandje



Instructed by Sisa Namandje & Co









11991
(3) SA 98 (C) at 111 B-
I





21999
(2) SA 279 (T) at 323 F





3At
324 F-G





4Hepner
v Roodepoort v Maraisburg Town Council
1962
(4) SA 772 (A);
Feinstein v Niggli
1981 (2) SA 684 (A); Grobbelaar
and Another v Council of the Municipality of Walvis Bay

1997 NR 259 (HC)





5Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155 (T) at 1163-5; Wightman t/a JW Construction v Headfour (Pty)
Ltd and Another
2008 (3) SA 371 (SCA) at 375 par [13]





6Delivered
on 14 February 2011 in case number A01/2010 No 2