Holme Namibia Investments (Pty) Ltd v Minister of Urban and Rural Development and Others (HC-MD-CIV-MOT-REV-2017/00314) [2019] NAHCMD 171 (29 May 2019);

Group

Headnote and flynote
Flynote: 

Administrative Law – review of decisions by Minister, purportedly acting in terms of s. 63 of the Local Authorities Act, 23 of 1992. Circumstances in which the court may properly substitute the Minister’s decision with its own discussed – Failure to cite and serve parties likely to be affected by court decision – court refusing to grant such a prayer.

Headnote and Holding: 

The applicant approached the court seeking an order reviewing two decisions by the Minister of Urban and Rural Development in which she overruled the City Council of Windhoek’s decision to disregard an objection to the sale of land by the Council to the applicant and also decided, without any accompanying recommendation from the Council, to sell certain erven to the 5th respondent. The Council had offered the erven to the applicant and awaited the Minister’s approval in that regard. The major question to be determined was whether it was proper, in the circumstances, to refer the matter back to the Minister or the court should make its own decision, particularly in the light of the irregular manner in which the Minister had handled the matter and treated the applicant in the process.

Held that: the Minister had acted improperly by arrogating upon herself the power to consider an objection by NDI, which the Council had found not to have been filed in line with the regulations notified. Significantly, NDI did not seek to have the Council’s decision in that regard set aside by a court of law.

Held further that: the Minister acted improperly in granting the Council approval to sell the erven to NDI in the absence of a recommendation by Council to the Minister to do so.

Held that: the Minister had acted in a manner that was partial and highly prejudicial to the applicant and that fears that she may find against the applicant if the matter were to be remitted to her were real and justified.

Held further that: because the President had changed the Minister who made the impugned decisions, it would be proper to remit the matter back to the new Minister to deal with the issue and not have the court make the decision instead. This was largely informed by the fact that the new Minister did not stand by the decision of his predecessor but withdrew his opposition to the relief sought by the applicant. Furthermore, the court considered that the issues at play involved matters of policy and technical issues, which the court may not have the experience or the expertise to deal with.

Held that: the prayer for the court to overrule objections lodged by the Universal Church of the Kingdom of God and Ghandy Properties could not be granted because the said parties had not been cited or served with the application.

The court granted the applicants application in part, by setting aside the Minister’s impugned decisions, but declined to make the decision regarding the sale of the land to the applicant itself. The Minister was ordered to pay costs on the punitive scale and the applicant was ordered to pay the costs of NDI for its successful opposition of the referral of the matter to the Minister on the ordinary scale.

Full judgment

ORDER


1.   The following decisions taken by the First Respondent, purportedly in terms of Section 63(3((c) of the Local Authorities Act, 23 of 1992 are hereby reviewed and set aside, namely –

(a)  To uphold the objections lodged by Etzold-Duvenhage Attorneys acting on behalf of NDI Holdings (Pty) Ltd against the sale of Erven 146, 147, 148, 150 RE / 152 and 6577, Windhoek to Holme Namibia Investments (Pty) Limited, the Applicant.

(b)  To grant approval to the City of Windhoek to sell Erven 146, 147, 148, 150 RE / 152 and 6577, Windhoek to NDI Holdings (Pty) Limited, the Fifth Respondent herein.

2.   The decision seeking the approval of the recommendation made by the Council of the Municipality of Windhoek, to sell Erven 146, 147, 148, 150 RE / 152 and 6577 to the Applicant, Holme Namibia Investments (Pty) Limited, is hereby referred back to the Minister for Urban and Rural Development for consideration.

3.   The Minister for Urban and Rural Development is required to make his decision and to advise the parties involved of his decision in writing, within a period of forty (40) days, from the date of this order.

4.   The Minister for of Urban and Rural Development is ordered to pay the costs of the Applicant on the scale between attorney and own client, consequent upon the employment of one instructing and one instructed Counsel.

5.   The Applicant is ordered to pay the costs of the Fifth Respondent in relation to the limited opposition to the application, consequent upon the employment of instructing and one instructed Counsel.

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


JUDGMENT


MASUKU J:

Introduction

[1]        At the heart of this application for review is a decision issued by the Minister of Urban and Rural Development refusing to grant approval to the Municipality of Windhoek, to sell certain property to the applicant.

[2]        The application is not opposed by the Minister concerned. Voices in opposition to the granting of the relief prayed for in part, emanate from the quarter of the 5th respondent, NDI Holdings (Pty) Ltd.

Relief sought

[3]        In its notice of motion, the applicant seeks the following relief:

            ‘1. The First Respondent is to show cause why:       

1.1  the decision taken by the First Respondent in terms of section 63(3)(c) of the Local Authorities Act, Act 23 of 1992:

1.1.1    To uphold the objections by Etzold-Duvenhage Attorneys acting on behalf of NDI Holdings (Pty) Ltd against the sale of Erven 146, 147, 148, 150 / 152 and 6577, Windhoek to Holme Namibia Investments (Pty) Ltd (Holme);

1.1.2    To grant approval to the City of Windhoek to sell erven 146, 147, 148, 150 RE / 152 and 5677, Windhoek to NDI Holdings (Pty) Ltd (NDI);-

           Should not be reviewed and set aside;

1.2  To overrule the objections lodged by Universal Church of the Kingdom of God and Ghandy Properties should not be reviewed and confirmed.

1.3  An order should not be made that the Second to Fourth Respondents sell Erven 146, 147, 148, 150, RE / 152 and 6577, Windhoek to the Applicant within thirty (30) days of the date of this order.

2     Directing that the costs of the review application be paid by the First Respondent, and should they oppose the relief sought in this application, by the Second to Fifth Respondents jointly and severally with the First Respondent, such costs to be on attorney and own client scale and to include those consequent upon the         employment by the Applicant of two instructed Counsel.’

[4]        As indicated above, the 5th respondent’s opposition is limited in nature. The said respondent does not oppose the granting of an order reviewing the impugned decisions of the Minister recorded in paras 1.1 of the notice of motion. What the 5th respondent opposes, in essence, is the relief sought in prayers 1.3 mentioned in the immediately preceding paragraph.  The other respondents, although they initially opposed the application, withdrew their opposition without having filed any affidavits in opposition to the relief sought. The Minister, it would seem, with the benefit of hindsight, withdrew the opposition to the matter.

Background

[5]        The facts giving rise to this application are largely common cause. They acuminate to this: the applicant made a proposal to the 2nd respondent, the Council of the Municipality of Windhoek to purchase the property mentioned in in para 1.1 of the notice of motion above. The property, in question, is owned by the 2nd respondent, to whom I shall refer as ‘the Council’. I shall refer to the said property in this judgment as such or as ‘the Erven”.

[6]        On 30 April 2014, the Council resolved to offer the property to the applicant. The 5th respondent filed an objection to the said resolution but the Council held that the said objection was not properly filed in the designated box and was therefor regarded by the Council as being invalid. The Council accordingly communicated its offer to sell the property to the applicant.

[7]        In line with the legislative requirements, namely s. 63 of the Local Authorities Act,[1] the Council had to obtain the approval of the Minister before selling the property to the applicant. When the approval was sought, the unexpected happened. The Minister, in her wisdom, decided to uphold the objection raised by the 5th respondent, which I should mention, the Council had held to be invalid for the reasons stated above.

[8]        The Minister did not end there. She issued a directive that the property be sold to the 5th respondent, to whom I shall refer as, ‘NDI’. This directive was made regardless of the fact that the Council had not made any recommendation or request to the Minister that the property be sold to NDI.

[9]        In the circumstances, one thing is abundantly clear and it is that the actions of the Minister, which are not explained or justified by her in this application, are in stark contravention of the powers granted to her by the Act. In terms of the enabling legislation, the Council had made a resolution to sell the property to the applicant and for that purpose, sought the Minister’s approval as required by the Act.

[10]      The Minister was not at large to take the decisions that she did, namely, upholding an objection by NDI that the Council had ruled was not valid. The basis for her doing so is not apparent nor is it explained or justified. Furthermore, the Minister was not at large to overlook the recommendation of Council that the property in question be sold to the applicant but resolve and without any recommendation from Council, to have the property sold to NDI. That appears from all perspectives and prisms or angles, to be a gross scandal, which in the face of no explanation, must be accepted, regarded and treated as such.

[11]      In view of the foregoing, particularly the fact that the Minister has not filed any papers in opposition and that NDI, which has opposed the relief sought on a limited basis, has not opposed the granting of prayers 1.1 of the notice of motion, there is accordingly no basis on which the Minister’s illegal decisions mentioned above should be allowed to stand. In the premises, I find it proper to grant the orders as prayed in terms of prayers 1.1, 1.1.1 and 1.1.2 of the notice of motion. I will deal with the associated issue of costs at the end of the judgment.

Is it proper to grant the balance of the relief sought by the applicant?

[12]      The main question that the court has to return an answer in respect of, is the balance of the order sought by the applicant. In this regard, and the particularly contentious prayer, is that relating to the court ordering the Council and its constituent parts, cited in this application, to be ordered to sell the property in question to the applicant. This, in the main, is the relief that NDI has specifically recorded should not be granted.

[13]      In this regard, NDI takes the view that this court is not at large, having set aside the impugned decision by the Minister, to then substitute her decision with its own, by ordering the Council to sell the property to the applicant. It is NDI’s case that the appropriate course to adopt, would be for the court to refer the matter back to the Minister for a fresh decision.

[14]      The applicant argues contrariwise. It catalogues a dreadful pattern of the Minister’s behaviour in this matter, which has seen it approach the court on a number of occasions, seeking orders against the Minister in respect of this very matter. In this regard, there is a number of court orders obtained against the Minister in this matter, which were issued with the alternative that the applicant could, in the event of the Minister not complying, apply to the court on papers duly amplified that the Minister be held in contempt of court.

[15]      The first order was issued by Usiku J on 6 July 2017[2]. It reviewed and set aside the Minister’s decision reflected in her letter dated 1 December 2015. It further set aside the Minister’s decision vide her letter dated 11 November 2016. The Minister was called upon to make a fresh decision within three weeks of the date of the said order. This order was varied a few days later with regards to the time limits, without in any way, shape or form affecting the stinging effect of the order on the merits.[3]

[16]      I should also pertinently mention that earlier, on 23 September 2016, Angula DJP had also issued an order against the Minister in an application brought by the applicant[4]. The effect of the order was to direct the Minister and the 3rd and 4th respondents herein to cause a deed of sale at the agreed price to be issued to give effect to the Council’s resolution to sell the property to the applicant within 30 days of the granting of the order.

[17]      It is clear, in the light of the foregoing, that the applicant has been seriously vexed by the Minister’s actions. That notwithstanding, the question that needs an answer is whether the previous actions of the Minister should serve to entitle this court to take the matter in its own hands and then substitute its decision for that of the Minister.

[18]      Mr. Soni argued that in the light of the unacceptable behaviour of the Minister as recorded above, together with the highly contentious decisions she made, considered in tandem with the manner in which she went about dealing with this matter, the court should delay the applicant’s case no further but substitute the Minister’s decisions for its own. Is he correct?

[19]      In his submissions, Mr. Soni referred the court to the remarks of O’Linn AJA, who stated the applicable principles in Minister of Health and Social Services v Lisse.[5]   He propounded the law as follows:

            ‘The matter will not be sent back [to the decision-maker] unless there are special circumstances giving reason for not doing so. Thus, for example, a matter would not be referred back where the tribunal or functionary has exhibited bias or gross incompetence or when the outcome appears to be a foregone’.

[20]      At para 42 of his carefully thought out and manicured heads of argument, Mr. Soni stated the following:

            ‘It is submitted that the applicable principles must be applied to the following considerations that emerge from the totality of facts and the sorry history of the Applicant’s attempts to purchase the Erven, which the Municipality has agreed to sell to it on account of the benefit it and the city would derive from the proposed development. These considerations are set out in the paragraphs immediately hereunder.’

[21]      I will paraphrase these. First, he submitted that the Minister exhibited patent bias against the applicant in that on three separate occasions, she refused to sell the property to the applicant, notwithstanding that the Council was desirous of doing so. Second, that the Minister exhibited partiality towards NDI by first holding against the finding of Council that NDI’s objection was invalid. She upheld that very objection. Not only that, she proceeded to then, unlawfully, approve the sale of the Erven to NDI.

[22]      Third, Mr. Soni was at pains to point out that the only request before the Minister was that she approves the Council’s decision to sell the property to the applicant. He submitted that in terms of the Constitution[6], the Minister was bound to act lawfully, reasonably and fairly. As such, the only ‘legitimate outcome’, which he submitted was a foregone conclusion, was to approve the Council’s request.

[23]      Lastly, it was submitted on the applicant’s behalf that the court is in as good a position as the Minister, to make a decision on the Council’s request to sell the property to the applicant. Counsel further submitted that the Minister had exhibited an unwarranted disregard for the rights of the applicant and the Council. Furthermore, she acted in contempt of orders issued by this court, showing that her motives are actuated by an ulterior purpose, namely, to advantage NDI to the applicant’s prejudice.

[24]      Mr. Heathcote’s submissions were a horse of a different colour. He submitted that the court should approach the matter on the appropriate relief with a measure of judicial deference and in the process, avoid sliding into the slippery pitfall of usurping the powers of administrative officials. In this regard, Mr. Heathcote referred the court to the remarks of O’Regan J in Bato Star v Minister of Environmental Affairs.[7]

[25]      In that case, the learned Judge of the Constitutional Court, propounded the applicable law as follows:

            ‘In treating the decisions of administrative agencies with the appropriate respect, a Court is recognising the proper role of the Executive within the Constitution. In doing so a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A Court should thus give due weight to findings of fact and policy decisions and made by those with special expertise and experience in the field. The extent to which a Court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a Court should pay due respect to the route selected by the decision-maker. This does not mean, however, that where the decision is one, which will not reasonably result in the achievement of the goal, or which is not reasonably supported on the facts or not reasonable in the light of the reasons given for it, a Court may not review that decision. A Court should not rubber-stamp an unreasonable decision simply because of the complexity of the decision or the identity of the decision or the identity of the decision-maker.’

[26]      I have read all the submissions made by the parties. In my considered view, the case made by the applicant is quite formidable for the court to substitute its decision for that of the administrative officials. Mr. Soni, is eminently correct about the unfair and prejudicial manner in which the applicant was treated by the Minister. A compelling case is made on that front, suggesting inexorably that the best way forward, in the light of the behaviour of the Minister, is for this court to make the decision itself.

[27]      The argument advanced may, at first blush, sound compelling regarding the conduct of the Minister, and therefor, suggesting that the court should make the decision and not refer it back to the Minister. In my considered view, that approach overlooks a very important, if not cataclysmic event that took place. It is common cause that on 13 July 2018, it pleased the President of this Republic, to appoint the Vice-President and Ministers of the Cabinet of Namibia, in terms of Art. 32 (8) of the Constitution. The appointments were made on 8 February 2018, regard had to Government Gazette No. 6645.

[28]      In schedule 2 of the said Gazette, the President appointed Ministers and this, in some cases, involved the transfer of Ministers from one Ministry to another. Significantly, the Minister of Urban and Rural Development, was changed. As a result, the Minister, who made the impugned decision, is no longer in office in the same Ministry. It pleased the President to appoint Minister Peya Mushelenga, to assume responsibility for the Ministry of Urban and Rural Development.

[29]      I am of the view that this very fact would suggest that this may not be a proper case in which the court should take matters into its own hands as it were and make the decision in the stead of the Minister. I say so being extremely alive and cognisant of the justified criticisms Mr. Soni levelled at the erstwhile Minister’s actions. There is a new head at the helm of the Ministry and in my considered view, it is only proper and fair to refer the matter back to the new Minister to make the decision in this case.

[30]      In saying so, I do not close my eyes to the fact that a lot of time may have been lost to the applicant as the erstwhile Minister mishandled this matter. That notwithstanding, there is no gainsaying the fact that the official best placed to make the decision, is the Minister and not the court. I say so because the court may not have at its disposal the wherewithal necessary to make an informed decision in this regard. Issues of property value then and now may arise; the effect on the City of Windhoek of the sale of the property at this particular juncture and other technical matters may arise. These may immediately place themselves well outside the realm of the court’s expertise and experience.

[31]      Another factor that persuades me that the decision to refer the matter back to the Minister is condign, is that the newly appointed Minister did not support the decision of his predecessor. Although a notice to oppose the application had been filed, probably as a cautionary measure, the Minister withdrew his opposition, which in my view was on good advice rendered to him in the light of what has been said previously regarding the impugned decisions.

[32]      This commendable approach by the Minister, in my view, should engender a sense that he will deal with the matter with an open mind and one that is not influenced or jaundiced by the factors that may have afflicted and influenced his predecessor, thus causing her to rule against the applicant in the ugly manner that she did.

[33]      With the new Minister in office, in my view, it appears that a new dawn has cracked. This suggests, and I so find, that it may not be correct to say, as was the situation with the erstwhile Minister, that the decision against the applicant would be a foregone conclusion if the matter were referred back to the Minister. I am of the considered view that the new Minister should be allowed the time and opportunity to apply his mind to the matter and to make his decision, considering in the process, the recommendation by Council that he approves the sale of the Erven to the applicant, together with relevant remarks made by the court in this judgment.

Outstanding objections

[34]      There is one issue that remains outstanding and it relates to prayer 1.2 of the notice of motion in terms of which the applicant seeks an order to the effect that the objections by Universal Church of the Kingdom of God and Ghandy Properties should reviewed and confirmed.

[35]      This is an issue that does not appear to have featured prominently in the applicant’s argument. I do agree with Mr. Heathcote that the parties referred to in the proposed order ought to have been served with the application, as the order sought certainly appears to affect their rights and/or interests. In other words, these parties appear to have a direct and substantial interest in the relief sought in the prayer in question. For that reason, they should have been joined to the proceedings. They have not been cited in these proceedings and they do not appear to have been served with the application either.

[36]      In the circumstances, it would, in my view, be iniquitous of this court to issue the order sought in prayer 1.2 above in view of the fact that the parties which stand to be affected by that order are not before court and they have not been afforded an opportunity to address the court on the relief sought therein. I therefor decline to issue the order sought in relation to prayer 1.2.

[37]      I should mention, as the matter draws to a close that Mr. Heathcote argued that the proper order to issue, would be to refer the matter back to the Minister and to order that the parties affected, including NDI, should be afforded an opportunity to address the issue before the Minister. I am disinclined to make any order along the lines suggested.

[38]      I do so for the reason that if the court were to follow the suggestion by Mr. Heathcote, that may have the debilitating effect of the court appearing to speak in a forked tongue. I say so considering that the court has, in very clear and unambiguous terms, held that the recognition and acceptance of NDI’s objection by the erstwhile Minister was incorrect and was accordingly reviewed and set aside. To order the Minister to invite NDI would be consistent with the decision by the erstwhile Minister, which has been set aside by this very court. I pertinently observe that NDI does not seem, at any stage, to have challenged the Council’s decision to render its objection invalid before a court of law.[8]

[39]      In the event the court ordered parties previously involved in the matter, including NDI, to appear or to make representations to the Minister in this new round of the proceedings before the Minister, it would have effectively, and through the backdoor, rescinded its earlier finding that the erstwhile Minister had incorrectly recognised NDI’s objection, whereas the objection had been declared invalid by Council, without demur by NDI.

[40]      In this regard, the Minister should deal with this matter upon advice, which this court is not properly placed to render. All that is necessary for the further progression of the case is to order the matter to be referred back to the office of the Minister in order for him to take a decision on the recommendation of Council regarding the sale of the Erven.

Conclusion

[41]      In view of the foregoing, I am of the considered opinion that there is no proper basis upon which the impugned decisions can be allowed to stand. Even the new Minister, it would seem, does not support the decisions of his predecessor in office. That said, it would not, however, be correct, in view of the circumstances discussed immediately above, to deprive the new Minister the opportunity to bring his mind virgin to bear on this matter. I accordingly refer the matter back to the new Minister for him to exercise the duties and functions of his office accordingly, particularly in the light of the recommendation by Council and salient portions of this judgment.

Costs

[42]      One issue that sticks out like a sore thumb in this matter, and the very epicentre of the case is the conduct of the Minister, which has seen the court setting aside her decisions. The details thereof, have been discussed above. There is no gainsaying that the Minister did not conduct herself appropriately in this matter. She seriously disadvantaged the applicant and compelled it to engage in litigation to vindicate its rights at great expense and on numerous occasions as discussed above. It is accordingly proper that the Minister should, in the light of her illegal and prejudicial conduct discussed earlier, be ordered to pay the costs of this matter on the punitive scale. This is done in a bid by the court to mark its disapproval of the erstwhile Minister’s actions.

[43]      The next question relates to the costs incurred by NDI in opposing the granting of the relief sought by the applicant, namely, that the court not refer the matter back to the Minister, but that it should make the decision itself. This relief, NDI successfully opposed and I am of the considered view that costs should follow the event. Those costs should, accordingly be borne by the applicant.

Order

[44]      In the premises, I grant the following order:

1.   The following decisions taken by the First Respondent, purportedly in terms of Section 63(3((c) of the Local Authorities Act, 23 of 1992 are hereby reviewed and set aside, namely –

(c)   To uphold the objections lodged by Etzold-Duvenhage Attorneys acting on behalf of NDI Holdings (Pty) Ltd against the sale of Erven 146, 147, 148, 150 RE / 152 and 6577, Windhoek to Holme Namibia Investments (Pty) Limited, the Applicant.

(d)  To grant approval to the City of Windhoek to sell Erven 146, 147, 148, 150 RE / 152 and 6577, Windhoek to NDI Holdings (Pty) Limited, the Fifth Respondent herein.

2.   The decision seeking the approval of the recommendation made by the Council of the Municipality of Windhoek, to sell Erven 146, 147, 148, 150 RE / 152 and 6577 to the Applicant, Holme Namibia Investments (Pty) Limited, is hereby referred back to the Minister for Urban and Rural Development for consideration.

3.   The Minister for Urban and Rural Development is required to make his decision and to advise the parties involved of his decision in writing, within a period of forty (40) days, from the date of this order.

4.   The Minister for of Urban and Rural Development is ordered to pay the costs of the Applicant on the scale between attorney and own client, consequent upon the employment of one instructing and one instructed Counsel.

5.   The Applicant is ordered to pay the costs of the Fifth Respondent in relation to the limited opposition to the application, consequent upon the employment of instructing and one instructed Counsel.

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

 

 

 

­______________

T.S Masuku

Judge

 

 

 

APPEARANCES: 

APPLICANT:                      Mr. Soni, SC.

                                           Instructed by Murorua, Kurtz & Kasper Inc.

                                           Windhoek.

FIFTH RESPONDENT:      Mr. R. Heathcote, SC, (with him N. Bassingthwaighte)

                                           Instructed by Etzold-Duvenhage Attorneys,

                                           Windhoek.


[1] Act No. 22 of 1992.

[2] HC-MD-CIV-MOT-REV-2016/00362 p 60 of record.

[3] Order of Usiku J dated 11 July 2017 p 62 of record.

[4] HC-MD-CIV-MOT-GEN-2016/00258 p 56 of record.

[5] 1996 (2) NR 739 (SC) at 775C, quoting with approval the sentiments expressed in Erf One Six Seven Orchard CC v Greater Johannesburg Metropolitan Council (Johannesburg Administration) and Another 1999 (1) SA 104 (SCA) 109F-G.

[6] Article 18 of the Constitution of Namibia.

[7] 2004 (4) SA 490 (CC), para 48.

[8] Oudekraal v Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at 73, cited with approval by our Supreme Court in Rally for Democracy v The Electoral Commission 2010 (2) NR 487 para 51.

Download