Court name
High Court Main Division
Case number
APPEAL 417 of 2013
Title

Town Council of Rundu v Dinyando (APPEAL 417 of 2013) [2015] NAHCMD 237 (10 August 2015);

Media neutral citation
[2015] NAHCMD 237
Coram
Parker AJ










REPUBLIC OF NAMIBIA




HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: A 417/2013





DATE: 08 OCTOBER 2015





In the matter between:





TOWN COUNCIL OF
RUNDU........................................................................................APPLICANT





And





RICHARD MUBURU
DINYANDO.................................................................FIRST
RESPONDENT





THERESIA
DINYANDO..............................................................................SECOND
RESPONDENT





JEFFREY
SWARTZ.........................................................................................THIRD
RESPONDENT





BEACON GLOBAL
NAMIBIA..................................................................FOURTH
RESPONDENT





MANUEL WALTER
PINTO............................................................................FIFTH
RESPONDENT





DAVID
DANIEL................................................................................................SIXTH
RESPONDENT





PAULUS
HANGO......................................................................................SEVENTH
RESPONDENT





STEVEN PINTO
GRACA............................................................................EIGHTH
RESPONDENT





MICHAEL MUYAMBANGO
THIKUSHO...................................................NINTH
RESPONDENT





LUCAS SHEIMBI
ISAAI...............................................................................TENTH
RESPONDENT





FESTUS
KASHIKORO..........................................................................ELEVENTH
RESPONDENT





RICHARD
SIMATAA............................................................................TWELVETH
RESPONDENT





MAGRETH
NUSHONGO.................................................................THIRTEENTH
RESPONDENT





Neutral citation: Town Council of
Rundu v Dinyando (A 417-2013) [2015] NAHCMD 237 (8 October 2015)








Coram: PARKER AJ





Heard: 23 July 2015





Delivered: 8 October 2015





Flynote: Estoppel – By
conduct – Operation of estoppel – Court held that
estoppel cannot be used to make legal what otherwise would be
illegal.





Summary: Estoppel – By conduct –
Operation of estoppel – Applicant launched application to evict
respondents from land applicant contends respondents occupy
unlawfully – Respondents’ response is that after the land
had been allocated to them by the Land Development Committee (which
was related to the applicant) they applied to the applicant for water
connections, to the land, which they obtained and paid a fee for –
On that basis respondents aver that applicant is estopped from
denying that respondents occupy the land lawfully – Court found
that no proof has been placed before the court establishing that the
Land Development Committee allocated the land to the respondents –
Court accepted applicant’s averment that persons who paraded
themselves as members of the Committee (including 12th respondent)
were not members of the committee at the material time – Court
found further that the traditional headwoman who allegedly allocated
the land to fourth respondent did not have power to give land which
is within the jurisdiction, and under the control, of a local
authority council to another person in virtue of the Local
Authorities Act 23 of 1992 – Court found further that
applicant’s policy on water connections does not cater for land
without erf/plot numbers, like the land in question, and so the water
connections relied on to found estoppel was illegal – Court
concluded that the doctrine of estoppel is not available to the
respondents because estoppel cannot be used to make legal what
otherwise would be illegal – Consequently, court concluded that
estoppel was not available to the respondents because it cannot apply
to the facts of this case – Consequently, court granted the
application.





ORDER





(a) The respondents are hereby evicted
from the land being a portion of the remainder of Farm Rundu
Townlands No. 1329, Rundu, and they should vacate the land on or
before 23 October 2015.





(b) The respondents are interdicted and
restrained from erecting any structure or building on the land.





(c) The applicant must repay to the
second respondent the amount of N$1 460, plus interest thereon,
calculated at the rate of 20 per cent per annum from 28 August 2013
to the date of full and final payment.





(d) I make no order as to costs in
favour of, or against, any party.





JUDGMENT





PARKER AJ:





[1] The applicant seeks the relief set
out in the notice of motion, and the order it prays for is against
all the respondents. The first, second and fourth respondents have
moved to reject the application; and so, where the context allows,
reference to respondents from here on should be taken to be a
reference to the first, second and fourth respondents. The matter
concerns the immovable property being land, that is, a portion of the
remainder of Farm Rundu Townlands No. 1329, Rundu (‘the land’).





[2] On the papers, the following cogent
fact is not in dispute: The applicant, a local authority council,
established in terms of the Local Authorities Act 23 of 1992, is the
lawful owner of the land in terms of Tittle Deed Certificate No.
T4396/1991. It follows, as a matter of law, that the land is the
property of the applicant and the applicant’s right to it is
protected by art 16 of the Namibian Constitution, as Mr Kwala,
counsel for the applicant, submitted. Such right includes the
applicant’s entitlement to possess and keep the land, (b) use,
and benefit from, the land, (c) encumber the land in favour of
another person, eg by way of a lease, (d) dispose of the land in
favour of another person through sale, for example, and (e) vindicate
the land, that is, claim the land from another person who occupies
the land unlawfully.





[3] I conclude, therefore, that the
respondents’ contention (in the answering affidavit) that the
land ‘belongs to second respondent’s grand uncle, Mr
Kashikoro Festus’, is legally incorrect. For the same reasons,
the fourth respondent’s reliance on a letter by Magreth
Mushongo, Headwoman, dated 27 September 2013, as the basis of his
lawful occupation of the land has no legal force, and it is rejected.
It cannot assist the fourth respondent. A traditional leader or a
chief has no power to give land which is within the jurisdiction, and
under the control of, a local authority council to another person, in
virtue of the Local Authorities Act 23 of 1992. This conclusion
disposes of the fourth respondent’s opposition to the
application.





[4] Keeping in my sights the
aforementioned cogent facts and the conclusion thereanent and the
applicant’s rights under the law, I proceed to the next level
of the enquiry. The applicant avers that the respondents occupy the
land unlawfully because they do so without the consent of the
applicant. Consequently, the applicant gave the respondents seven
days’ ‘notice to vacate the premises (the land)’.
The respondents contend contrariwise that they do occupy the land
lawfully because it was allocated to them by the applicant. The
burden of the court is, therefore, to determine whether the council
‘allocated’ the land to the respondents, and the nature
of such allocation.





[5] As has been said previously, the
applicant, as the owner of the land, is entitled to, for example,
encumber the land in favour of another person (eg through a lease
agreement) or dispose of it (eg by selling it to another person).
Since the respondents assert that they occupy the applicant’s
land lawfully, the respondents bear the onus of proving what they
assert. The respondents must prove that they occupy the land: (a) as,
for example, lessees in terms of a lease agreement entered into
between them and the applicant, or (b) on the strength of permission
to occupy the land given to them by the applicant, or (c) because the
land was sold to them in terms of a sale agreement concluded between
them and the applicant. Since the land is situate in an unsurveyed
area (as attested to in the answering affidavit of the first
respondent) the land could not have been sold to the respondents in
terms of a sale agreement (ie (c), above). In any case, no sale
agreement has been placed before the court. It can therefore be said
that only items (a) and (b), above, could possibly apply to the land.
But no lease agreement has been placed before the court. The
inevitable conclusion is, therefore, that there is no proof that the
land was assigned to the respondents in terms of a lease agreement or
a sale agreement. That leaves only item (b), that is, the land could
have been allocated to the respondents in terms of a permission to
occupy the land.





[6] Accordingly, I proceed to consider
whether the respondents have placed before the court proof that they
were given permission by the applicant to occupy the land. There is
no such proof placed before the court, supported by a written
document, which would have assisted the court greatly. The absence of
such document is significant. The respondents say that they were
allocated the land by an entity called the Local Development
Committee (‘the LDC’). I find that the first and second
respondents were aware that they could have requested a written
confirmation of such allocation from the LDC, but they did not; and
they give no explanation why they did not; not even when they
received the eviction notices from the applicant; not even when a
threat of legal action stared them in their faces. The only
reasonable inference is that the respondents’ contention that
they were allocated the land by the LDC is not possibly true.
Annexure RMD1 (annexed to the first respondent’s answering
affidavit), which they rely on, is not, and cannot be, permission to
occupy the land given by the applicant or, indeed, the LDC. This is
an ‘Application for Water Connection’. Besides, I reject
as false Mr Simataa’s statement in his confirmatory affidavit
that he is the ‘Chairman of the LDC and … District
Chairman of all unsurveyed land (informal settlements) in the area of
Rundu’. RMD1 does not indicate such position. Besides, there is
no proof presented to the court, establishing the positions Simataa
says he held at the material time; and more important, Simataa does
not say during what period he was such Chairman of LDC and such
District Chairman ‘of all unsurveyed land in the area of
Rundu’. Upon the principle enunciated in Plascon-Evans Paints
(Pty) Ltd vs Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at
635B-C, I accept the applicants averments that Simataa was a member
of the build-together programme, but not a member of the LDC; and
further, in any case, as from 29 February 2013, Simataa had even
ceased to be a member of the build-together programme. I also accept
the applicant’s averments that Ms Johanna Kambinda was not a
member of the committee. On the papers I am, accordingly, satisfied
as to the inherent credibility of the applicant’s factual
averments in that regard (see Plascon-Evans, loc. cit.)





[7] In the face of all this factual
averments in the applicant’s papers which I have accepted as
credible, in his heads of argument, Mr Van Vuuren, counsel for the
respondents, argues that the lawfulness of the respondents’
occupation is based on the doctrine of estoppel. He argues that after
the first and second respondents were given RMD1 they applied for a
water connection, the application succeeded, and they paid N$1 460 as
‘new connection fee’. The applicant avers that the
obtaining of the water meter connection was illegal in itself for the
following reasons: The applicant’s policy on water connection
does not cater for properties without erf/plot numbers, which is what
the land is, as the respondents themselves admit. In its stead, the
applicant installs water at designated areas within a settlement
where the community living there use as a communal water points. I am
satisfied as to the inherit credibility of the applicant’s
averments in that regard, too.





[8] Consequently, I accept as credible
the applicant’s factual averments about the illegality of the
water connection. Indeed, I have found already that RMD1, which the
respondents used to obtain the water-meter connection, was itself not
proof of permission to occupy the land. The upshot of this finding is
that there was no legal basis upon which the applicant would have
approved the water connection for the respondents. Consequently, I
find that the water connection was illegal. The respondents were
aware of the illegality because they knew that RMD1 was in no way
proof of permission to occupy the land, entitling them to use it to
obtain the water connection.





[9] Estoppel cannot be used to make
legal what otherwise would be illegal. (LTC Harms, Amler’s
Precedents of Pleadings, 4th ed. (1993), p 138; and the cases there
cited) Consequently, estoppel is not available to the respondents: it
cannot apply to the facts of this case.





[10] Based on these reasons, the
application succeeds; whereupon, I order as follows:





(a) The respondents are hereby evicted
from the land being a portion of the remainder of Farm Rundu
Townlands No. 1329, Rundu, and they should vacate the land on or
before 23 October 2015.





(b) The respondents are interdicted and
restrained from erecting any structure or building on the land.





(c) The applicant must repay to the
second respondent the amount of N$1 460, plus interest thereon,
calculated at the rate of 20 per cent per annum from 28 August 2013
to the date of full and final payment.





(d) I make no order as to costs in
favour of, or against, any party.





C Parker





Acting Judge





APPEARANCES





APPLICANT: F M Kwala Of Kwala &
Co. Inc., Windhoek





FIRST AND SECOND RESPONDENTS: J Van
Vuuren


Of Krüger, Van Vuuren &
Co., Windhoek