Court name
High Court Main Division
Case name
Kahua and Others v Minister of Regional And Local Government Housing And Rural Development and Another
Media neutral citation
[2014] NAHCMD 1
Judge
Van Niekerk J










REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





REASONS
FOR JUDGMENT





Case
No: A457/2013





DATE:
03 JANUARY 2014





NOT
REPORTABLE





In
the matter between:





VINCENT
KAHUA.....................................................................................................................FIRST
APPLICANT





ALBERTUS
NARUSEB.....................................................................................................SECOND
APPLICANT





CHRISTIAAN
NANUSEB.......................................................................................................THIRD
APPLICANT





KRETENCIA
GARISES......................................................................................................FOURTH
APPLICANT





And





THE
MINISTER OF REGIONAL AND LOCAL GOVERNMENT, HOUSING AND


RURAL
DEVELOPMENT.................................................................................................FIRST
RESPONDENT





LINUS
//GAROEB.........................................................................................................SECOND
RESPONDENT





Neutral
citation: Kahua v Minister of Regional and Local Government Housing
and Rural Development (A457-2013) [2014] NAHCMD 1 (3 January 2014)





Coram:
VAN NIEKERK J





Heard:
30 December 2013 Delivered: 3 January 2014





REASONS
FOR JUDGMENT





VAN
NIEKERK J:





[1]
In this matter I made an order on 3 January 2014 for which I now
provide reasons. This application was brought on an urgent basis and
set down for hearing on 30 December 2013. The first applicant is the
mayor of the Omaruru town council. The second applicant is the deputy
mayor, while the other applicants are ordinary councillors of the
said town council. There are three other councillors of the town
council who are not joined in these proceedings.





[2]
Apart from condonation for their non-compliance with the rules of
this Court and further and/or alternative relief, the applicants seek
the following relief:





2.
An Order:





2.1
Declaring Government Notice 326 published on 16 December 2013 to be
of no legal force or effect;


2.2
Directing the 1st Respondent to restore and revest the Applicants
with such powers, functions, rights and obligations as prescribed in
Part V of the Local Authorities Act of 1992;


2.3
Without derogating from the generality of the relief set out in
paragraph 2.2 above, that the 1st Respondent be directed to forthwith
restore the status quo ante.


2.4
That the costs of the Application be paid by the Respondent (sic)
should they oppose this Application, such costs to be on an
Attorney-and-own-client scale and to include those consequent upon
the employment by the Applicants of two Counsel.’







[3]
The application is opposed by the first respondent, who raises
certain preliminary points of law. These include that the application
is not urgent and that the applicants lack locus standi. The Court,
with the agreement of counsel for both sides, directed that argument
be heard only on these two aspects.





[4]
The complaint by the applicants is directed at Government Notice 326,
the relevant part of which reads as follows:





SUSPENSION
FROM OFFICE OF MEMBERS OF MUNICIPAL COUNCIL OF OMARURU: LOCAL
AUTHORITIES ACT, 1992





Under
section 92 of the Local Authorities Act, 1992 (Act No. 23 of 1992), I
hereby in respect of the Municipal Council of Omaruru, with effect
from the date of publication of this notice in the Gazette -


(a)
Declare that all the powers , duties and functions of the Council
vest in me; and


(b)
Suspend all the members of the Council from office.’





[5]
In order to understand the substance of the applicants’
complaint, it is necessary to have regard to section 92 of the Local
Authorities Act, 1992 (Act 23 of 1992) (‘the Act’), which
reads as follows:





92
Failure by local authority councils to exercise or perform its
powers, duties and functions





(1)
If, in the case of a local authority council other than the municipal
council of a municipality referred to in Part I of Schedule 1, the
Minister is satisfied-


(a)
that a local authority council is unable to exercise the powers and
perform the duties and functions by law conferred and imposed on such
council;


(b)
on account of a report by the Auditor-General after conducting an
ordinary audit or conducting an audit at the request of the Minister-


(I)
that the local authority council is unable to meet its financial
commitments; or


(ii)
that no proper control is exercised over the assets and liabilities
of the local authority council; or


(c)
that the local authority council does not comply with the
requirements of section 14(1)^ in relation to the holding of
meetings,


the
Minister may by notice in writing, after having given such local
authority council an opportunity to submit representations to him or
her, instruct such local authority council to take such steps in
order to rectify the issues concerned, within the period of time and
in accordance with any details and directives, as specified in the
notice.





(2)
If a local authority council fails to comply with or to adhere to an
instruction under subsection (1), the Minister may by notice in the
Gazette-


(a)
declare that all the powers, duties and functions of the local
authority council, or any thereof as specified in the notice, shall
be vested in the Minister; and


(b)
remove or suspend the members of such local authority council from
office, if all the powers, duties and functions of the local
authority council are vested in the Minister under paragraph (a).





(3)
The Minister may declare at any time by notice in the Gazette, after
consultation with the local authority council concerned, such local
authority council to be re-vested, with effect from a date specified
in the notice, with the powers, duties and functions which in terms
of a notice under subsection (2) were vested in the Minister.


(4)
A notice under subsection (2) shall provide for an election of
members of such local authority council to be held on a date
specified in the notice, which date shall not be later than three
months after the date of publication of the notice, but if a general
election for members of local authority councils is to be held within
six months after the date of the notice concerned, the election
provided for in the notice shall not be held.


(5)
If the members of a local authority council have been removed or
suspended under subsection (2)(b), the Minister¬ial shall have,
and may exercise and perform, the powers, duties


and
functions conferred or imposed upon the local authority council by
law; and


(b)
may authorise in writing any other person to exercise or perform any
of those powers, duties and functions, subject to the directions and
control of the Minister,


until
the election contemplated in subsection (4) has taken place.


(6)
If an election is to be held by virtue of the provisions of
subsection (4), such election shall be deemed to be an election of
members of the first local authority council of a newly established
local authority area.


(7)
A local authority council elected at an election referred to in
subsection (6) shall be deemed, for the purposes of sections
11(2)(a), '\4('\)(a) and 21(2)(a), to be a new local authority
council.’





[6]
It is not necessary for purposes of deciding the points in limine to
set out the factual averments by the applicants in great detail. By
way of summary it may be stated that their case is that the first
respondent sent a team of ministerial staff members to Omaruru to
investigate certain irregularities which had allegedly occurred at
the municipality. A report was drawn up. In spite of indications by
the first respondent at various stages that he or his staff would be
meeting with the town council about the report, no meeting
materialized. In the report certain recommendations are made. In the
covering letter accompanying the report, the first respondent
expresses the sincere hope that these recommendations ‘will be
adhered to’.





[7]
At the end of August 2013 the first respondent sent another letter to
the town council in which he invited the town council to a meeting to
be held on 6 September 2013. He also required of the council, at this
meeting, to make written ‘presentations’ to him about the
recommendations in the report and about certain new issues that came
about after the investigation was conducted. The council responded in
writing that it was awaiting input from the management committee and
would be unable to make the required written response by 6 September.
The first respondent thereupon declined to meet with the council.





On
22 November 2013 the town council provided written ‘feedback’
to the first respondent.





[8]
On 9 December 2013 the first respondent directed a written invitation
to the town council to attend a meeting to be addressed by the first
respondent at the council chamber on 16 December 2013. The applicants
received this invitation only on 16 December 2013. The meeting turned
out to be a press conference at which the first respondent’s
deputy read out a press release, in which it was, inter alia, stated
that the recommendations by the ministerial investigation team were
not implemented ‘regardless of our efforts to impress upon the
council to do so’; that the first respondent thereupon decided
to suspend the members of the town council in terms of section 92 of
the Act without remuneration; and to vest all the powers, duties and
functions of the council in the first respondent; and that the first
respondent authorised the second respondent to exercise all these
powers, duties and functions on behalf of the first respondent.
Reference was also made to Government Notice 326 published on the
same day.





[9]
The applicants point out that the first respondent did not
specifically state whether he was ‘satisfied’ as
contemplated in section 92(1 )(a), (b) or (c) of the Act. They
speculate that he possibly acted under section 92(1 )(a), but point
out that he did not comply in all respects with this section before
he invoked section 92(2) by declaring the town council divested of
all its powers, duties and functions and by suspending all its
members. As such, the applicants allege, the first respondent acted
illegally and the Government Notice should be declared to be of no
force or effect.





Locus
standi





[10]
Mr Namandje, who appeared with Mr Nkiwane on behalf of the first
respondent, submitted in heads of argument that the actions of the
first respondent under section 92 of the Act are aimed at the town
council. The act of suspending the members under section 92(2)(b), he
further submitted, is simply part of the action taken in respect of
the town council under section 92(2)(a) and follows automatically and
peremptorily from the declaration in terms of section 92(1 )(a) that
all the powers, duties and functions of the town council shall be
vested in the first respondent. Counsel further submitted that the
applicants should not have brought the application in their own
capacity. He further submitted that it is the town council itself
that has standing to impugn the action of the first


respondent.





[11]
To this argument the stance taken by the applicants in their heads of
argument drawn by Mr Kurz and confirmed by Mr Hinda, who appeared on
their behalf, is that the applicants had no choice but to approach
the Court in their capacities as members of the town council as the
council has been divested of its powers and all its members
suspended.





[12]
Mr Namandje submitted that nothing stopped the councillors to call a
meeting to discuss the matter. He pointed to the fact that the
applicants constitute the majority of the council and would
presumably have been able to take a majority decision to launch this
application in the event that the remaining three councillors, who
are members of the ruling party, did not support the decision.





[13]
I do not agree with the stance taken by the applicants. The merits of
the application is essentially based on the premise that the first
respondent acted illegally and as such contrary to Article 18 of the
Constitution and furthermore, that the very notice whereby the
council was divested of all its powers, duties and functions and
whereby its members were suspended is a nullity. The issue of the
council’s locus standi must, as a matter of logic, be
considered on the assumption that the first respondent’s notice
was indeed a nullity. (Uffindell t/a Aloe Hunting Safaris v
Government of Namibia 2009 (2) NR 670 (HC) at 682E-F). The council,
which is a juristic person in its own name, (see section 6(3) of the
Act) is clearly an aggrieved person who may take legal action to
remedy the illegality.





[14]
Mr Hinda submitted that the council would practically not have been
able to meet, because notice of meetings are to be given by the town
clerk on instruction of the chairperson of the council, and because
the council was divested of all its powers, the town clerk would not
have executed any instruction by the chairperson. However, the
applicants make no mention of any such practical difficulties or of
any attempts they had made in this regard.





[15]
Counsel for the first respondent pointed to the fact that the
applicants in several instances pleaded the case for the council,
which they were not entitled to do. It is indeed so that the founding
affidavit is not scrupulous in always distinguishing between the town
council and the applicants as its members. At times the applicants
refer to the council and themselves interchangeably as if they are
the same persona, which clearly they are not.





[16]
However, I do not agree with counsel for the first respondent that
all the references to ‘the Council’ highlighted by
counsel in their heads or argument fall in this category. It seems to
me that to some extent, at least, the fate of the council and its
members are inextricably linked and that, in as much as the
suspension of the applicants can only follow upon a declaration that
all the powers, duties and functions of the council shall be vested
in the first respondent, the applicants were entitled to refer to
various actions and decisions taken by the council.





[17]
This being said, I do agree that the statement in paragraph 14.2 of
the founding affidavit that the first respondent ‘failed to
exercise the option to instruct the Applicants by notice in writing
to take such steps in order to rectify issues, within the period of
time in accordance with any details and directions as the 1st
Respondent may specify’ clearly confuses the applicants with
the council. The same can be said of the reference to ‘the
Applicants’ and ‘the Applicant’ in paragraph 14.3
and paragraphs 20.1 to 20.5. Furthermore, in attempting to make out a
case for urgency, several of the grounds advanced by the applicants
are grounds which apply to the council and not to them as members,
which reinforces the impression that the applicants did not launch
this application with a clear view as to their standing and the basis
upon which it is brought. Lastly, the applicants can clearly never be
entitled to the relief claimed in prayer 2.2. Although this issue was
discussed between the Court and counsel for the first respondent, the
applicants did not move any amendment to substitute the word
‘Applicants’ with the word ‘council’. The
Court also mero motu posed the question whether the applicants do not
have standing on the basis that they have been suspended without
remuneration. However, during argument on behalf of the applicants I
was left with the impression that the applicants are not relying on
this aspect as counsel submitted that if this was really the issue
the first respondent would have raised objections also on this score.





[18]
In considering the issue of standing it must be borne in mind that
the applicants bear the onus to make the necessary averments to prove
their standing in the founding papers (Coin Security Namibia (Pty)
Ltd v Jacobs 1996 NR 279 (HC); Grobbelaar v Council of the
Municipality of Walvis Bay 2007 (1) NR 259 (HC) paras [34] and [35]).
In my view the applicants blow hot and cold in the founding
affidavit. They do not make clear averments to assert their standing
or from which their standing may inferred as a matter of law. They
confuse themselves with the council. They claim relief to which only
the council is, in principle, entitled. The Court should not ignore
the case for standing which they make out by making out a different
case for them. I should not be misunderstood that I my finding is
that they do not have standing. Rather, it seems to me that the
applicants do not satisfactorily show that they do have standing on
the basis that they say they do.





Urgency





[19]
As this point was also argued, I wish to state briefly why I think
the matter is not urgent.





[20]
As I have stated before, the applicants mainly rely on factors that
really concern the council as a body. The applicants allege that the
continuing illegality of the first respondent’s action has a
massive impact on the governance of the council. They point to
various service delivery projects in which the individual applicants
were involved and allege that these are likely to come to an abrupt
halt as the second respondent does not have full knowledge of these
projects. I think this is inherently quite unlikely as the fulltime
employees of the municipality should be able to assist the second
respondent. There is also no reason why he cannot call on the
applicants to share any necessary information with him to keep the
projects rolling.





[21]
Apart from this, the applicants mention briefly in passing that the
fact that they have been suspended without pay adversely affects
them. However, this fact in itself does not render the matter urgent.





[22]
They mention that the election contemplated in section 92(4) will
most likely be held before the application can be finalized in the
normal course. However, the first respondent has not as yet provided
for any such election.





[23]
The applicants mention that their suspension adversely affects them
in their representative capacity as elected office bearers. However,
once again, this in itself does not render the application urgent.





The
order





[24]
For the above mentioned reasons the following order was made:





1.
The applicants have not satisfactorily shown that they have locus
standi to bring the application.


2.
The application is not urgent.


3.
The application is dismissed with costs, such costs to include the
costs of one instructing and one instructed counsel.’





K
van Niekerk


Judge





APPEARANCE





For
the applicants: Adv G Hinda SC





Instr.
by Merorua & Associates





For
the first respondent: Mr S Namandje





(and
with him) Mr S Nkiwane Instr. by the Government-Attorney