Court name
High Court
Case number
APPEAL 25 of 1996
Case name
Grobbelaar and Another v Council of the Municipality of Walvis Bay and Another
Media neutral citation
[1997] NAHC 1











17












CASE NO.: A 25/96



IN THE HIGH COURT OF
NAMIBIA





in the matter between:













WILLEM
GROBBELAAR


CORNER PROPERTIES
CC.



First Applicant


Second Applicant






and













THE COUNCIL OF
THE MUNICIPALITY OF


WALVIS BAY


THE CHAIRPERSON
OF THE COUNCIL OF


THE MUNICIPALITY
OF WALVIS BAY






First Respondent





Second Respondent












CORAM: MARITZ, A.J.







Heard on: 1996-11-4



Delivered on: 1997-11-21



_____________________________________________________________________







JUDGMENT






­­MARITZ, A.J. The first applicant, a property
developer and member of the second applicant, acquired Erf 1043
Walvis Bay for purposes of the development of a shop and office
complex thereon. That property is situated within the local
authority area of the first respondent. During the latter half of
1994 and the beginning of 1995 he commenced with and completed the
development whereafter he alienated the property to the second
applicant. In the course of the development a dispute arose between
the first applicant and the Council of the First Respondent about the
first applicant’s duty to provide parking space on the property
itself or to either acquire another property approved by the first
respondent for the provision of parking or pay an amount of
N$109 200,00 to the first respondent’s “Parking
Development Fund
”, the funds whereof were to be applied by the
Council towards the acquisition and development of parking facilities
in Walvis Bay. This dispute culminated in the adoption of the
following resolution by the first respondent’s Council (of which
the second respondent is the Chairman) on 28 March 1995:






(a) That the developer of Erf 1043, Walvis Bay be informed that
Council stands by its principle that over and above the parking
provided by Council, a developer in the business area must provide
parking at the rate of two parking bays per 100 m² of
development on the Erf being developed.








  1. That should the developer not be in the position to comply with
    (a), the developer shall either –









  1. acquire the prescribed area of land for the parking facilities
    elsewhere in a position approved by the Council: provided the
    developer registers a notarial deed against such land to the effect
    that the Council and the public shall have free access thereto for
    the purpose of parking and the owner shall be bound to level this
    land and surface and maintain it to the satisfaction of the Council:
    the cost of registration of the servitude to be borne by the
    Council, or









  1. pay a cash sum of N$140 per m² which sum shall be paid into
    a parking development fund.









  1. That, should the developer opt for option (b)(ii), the total
    amount of N$109 200,00 representing 26 parking bays of 30 m²
    each at a unit cost of N$140,00 per m², be paid to Council
    within 7 days.






The first
and second applicants are moving an order to have that decision
reviewed and set aside as null and void, as well as an order
directing first respondent to refund the amount of N$109 200,00
to the first applicant together with interest thereon. They are also
seeking an order of costs against the first respondent.






The applicants are challenging the validity of the first respondent’s
decision on a number of grounds. They allege that the first
respondent’s Council had no authority to have taken the decision;
that the Town Planning Scheme relied on as authority for the adoption
of that resolution was not in force or, if in force, has not been
complied with; that the applicants were not afforded a proper
opportunity to be heard on the resolution; that the resolution was
invalidly taken with retrospective effect; that the first
respondent’s Council acted in a discriminatory manner contrary to
the provisions of Article 10 of the Namibian Constitution to the
detriment of the applicants and that the first respondent’s Council
acted so unreasonable that that the court is entitled to infer mala
fide
from its conduct.






Mr Swanepoel, who appeared for the applicants focused his main attack
on the first respondent’s lack of authority to have adopted that
resolution. He argued that a Local Authority, as a creature of
statute, does not have any inherent powers and that, in the absence
of any empowering legislative provisions, the first respondent could
not have required payment from the first applicant in the manner and
to the extent contemplated by that resolution (to which I shall refer
to hereunder as the “decision”). Mr Smuts, appearing for the
respondents, challenged those contentions, submitting that the
applicants attack on the first respondent’s authority to make the
decision was in oblique and general terms without the required degree
of specificity contemplated by rule 53(2); that the applicants had
waved their right to challenge that authority and that the first
respondent, in any event, had the authority to require such payment
by virtue of the provisions of the Town Planning Scheme of Walvis Bay
(the “Scheme”) read with the provisions of the Town
Planning Ordinance, 1954, alternatively Regulation 15 of 1 February
1969 read with the provisions of the Local Authorities Act, 1992. I
shall deal with those submissions seriatim.





It is
correct that the first applicant initially raised the first
respondent’s authority in rather general terms in his affidavit.
Later on though, he made that challenge in the founding affidavit in
no uncertain terms. He alleged, referring to a letter of the first
respondent (in which the latter indicated its reliance on the Scheme)
that no such Scheme had ever been approved for Walvis Bay; that such
Scheme had been in preparation for a long time but that it had never
been adopted or promulgated under the Town Planning Ordinance, 1954.
He pointed out that as late as September 1995 a Government Notice
(No. 265 of 1995) had been published according to which the Council
of the first respondent had obtained approval from the Minister of
Regional and Local Government and Housing to compile a Town Planning
Scheme for Walvis Bay. That according to him, was indicative of the
fact that no Scheme had existed at the time the decision was taken.






The respondents replied to those allegations at length. On behalf of
the first respondent it was, inter alia, stated that “this
policy (i.e. to provide parking or pay a levy) is in accordance with
the Walvis Bay Town Planning Scheme of 1977 (in preparation) …
pursuant to the Town Planning Ordinance, 19 of 1954. The Scheme was
duly authorised and approved in accordance with Government Notice 86
of 1973 published in the Official Gazette of 16 July and 1 August
1973
.” It then quoted certain provisions of that scheme as
authority for the Council’s decision and further referred to
Regulation 15 of 1 February 1969 promulgated under the Municipal
Ordinance, 1963.





I am
satisfied that the applicants complied with the provisions of Rule
53(2) of the Rules of Court which requires an applicant to set out
the grounds and the facts and circumstances upon which he or she
relies to have the decision or proceeding set aside or corrected.
The respondents were sufficiently appraised of the facts and
circumstances underlying the applicants’ challenge to its Council’s
authority.







Mr Smuts also contended that the first applicant had waived his right
to challenge the first respondent’s authority because he had
accepted the first respondent’s right to require payment of the
sum; because of his agreement to pay a cash sum as a levy instead of
having to provide parking bays and because of the circumstances
surrounding the subsequent payment of that levy. Needless to say
those circumstances relied on by the respondents are hotly contested
by the applicants.







It is trite law that, given the factual presumption that a person is
not likely deemed to have waived his or her rights, the onus
to prove the applicant’s alleged waiver on a balance of
probabilities rests on the respondent. (See: Hepner v
Roodepoort-Maraisburg Town Council
, 1962 (4) SA 772 (A); Borstlap
v Spangenberg en Andere
, 1974 (3) SA 695 (A)). I am also mindful
that in deciding disputes of fact in application proceedings, those
disputes







should be adjudicated on the basis of the facts averred in the
applicant’s founding affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent,
whether or not the latter has been admitted by the applicant, unless
a denial by the respondent is not such as to raise a real, genuine or
bona fide dispute of fact or a statement in the respondent’s
affidavit is so far-fetched or clearly untenable that the court is
justified in rejecting it merely on the papers… This approach
remains the same irrespective of the question which party bears the
onus of proof in any particular case.
” (Kauesa v
Minister of Home Affairs & Others
, 1995 (1) SA 51 (NmHC) at
56 I to 57 C and the authorities referred to therein.)





To succeed
in such a defence the respondents had to allege and prove that, when
the alleged waiver took place, the first applicant had full knowledge
of the right which he decided to abandon; that the first applicant
either expressly or by necessary implication abandoned that right and
that he conveyed his decision to that effect to the first respondent.
See: Netlon Ltd & Another v Pacnet (Pty) Ltd, 1977 (3) SA
840 (A) at 873; Hepner v Roodepoort-Maraisburg Town Council,
supra; Traub v Barclays National Bank Ltd, 1983 (3) SA
619 (a) at 634.







It is common cause that, although the first applicant indicated in
the course of informal discussions that he was in principle agreeable
to contribute to the “Parking Development Fund” in lieu of
having to provide parking facilities on the premises or elsewhere, he
never agreed to the payment of an amount of N$109 200,00 and
consistently disputed the first respondent’s authority to
unilaterally determine such an amount. It seems to me that the first
applicant’s agreement to a contribution was not severable from the
amount to be agreed on as a contribution. Without agreement on that
amount (and it is common cause that was none), I am unable to find on
the papers that the first respondent has proven, on a balance of
probabilities, that the first applicant had waived his right to
challenge the first respondent’s authority to unilaterally impose a
levy of N$109 200,00 on him.





The
respondent’s last line of resistance to applicants’ attack on its
authority (or rather the lack thereof) was that it had the power to
require payment of that sum under the provisions of the Scheme,
alternatively by virtue of Regulation 15 of 1 February 1969.





Although
the first respondent’s Council is a juristic person (section 6(2)
of the Local Authorities Act, 1992) it is nevertheless a creature of
statute. It does not enjoy the same liberty as private individuals
and has no powers other than those which are deduced from the four
corners of the statute under which it was constituted. (See: Braud
v Pretoria City Council
, 1981 (1) 680 (T) at 683; Connolly v
Ferguson
, 1909 TS 195 at 198; De Villiers v Pretoria
Municipality
, 1912 TPD 626 at 632; Burghersdorp Municipality v
Coney
, 1936 CPD 305 and Baxter: “Administrative Law” (1984)
387).





The
provisions of the Town Planning Ordinance, 1954 were applied by
section 3 thereof to local authority areas mentioned in the Third
Schedule thereto. In addition to those local authorities, the
Minister may under the powers vested in him by section 4 of the
Ordinance, in certain circumstances apply the provisions thereof by
notice in the Gazette to other local authorities. Lastly, the
Ordinances also applies to those local authorities which, of their
own initiative, has given notice in the Gazette that a scheme will be
prepared and submitted to the Minister as contemplated by section 7
of the Ordinance.







The Municipality of Walvis Bay is not listed in the Third Schedule to
that Ordinance and I have been unable to find any proclamation in
terms whereof the Administrator (or any of the other constitutional
predecessors of the Minister) applied the provisions of the Ordinance
to it under section 4 thereof. The only other manner in which the
Ordinance could have been applied to the first respondent was under
section 7 thereof. In terms of that section a local authority which
has not been otherwise required to submit a scheme to the Minister
may at its own initiative prepare and submit such a scheme. Once it
has published notice of its intention to prepare such a scheme in the
manner prescribed by section 7(2) of the Ordinance, the provisions of
the Ordinance apply to that area in respect of which the scheme will
be prepared.







In their answering affidavits the respondents refer to two notices
which have been published on 16 June 1973 and 1 August 1973
respectively as authority for its proposition that the Ordinance
applies to its local authority area. Those notices purports to be
notices “in terms of the provisions of section 17 of the Town
Planning Ordinance, 1954 (Ordinance 18 of 1954) that the resolution
of the Council, to devise a Town Planning Scheme for the Municipality
of Walvis Bay, has been approved by the Executive Committee
”.
They are not the notices required by section 7(2) of the Ordinance.
Although the first applicant, who was a member of the first
respondent’s Council for approximately ten years prior to In
dependence stated in his founding affidavit “without fear of
contradiction that no Town Planning Scheme has ever been approved for
Walvis Bay”,
he did not allege that the Ordinance itself had
not been applied the local authority area of the first respondent
pursuant to the provisions of section 7(2) thereof. He did that in
his replying affidavit for the first time (“… no notice of
intention to prepare a scheme for submission to the Administrator
(Executive Committee) as contemplated in section 7(2) of the Town
Planning Ordinance, No 18 of 1954 was eve given, alternatively
properly given …
”). Neither counsel referred me to or
produced a publication of a notice in terms of section 7(2) in the
course of legal argument. Counsel for the applicants repeated in the
course of his argument that notice in terms of section 7(2) was never
given and invited me, on the authority of Marshall v Marshall
(Pty) Ltd, 1954(3) SA 571(N)
(at 576C-D), to rely on those
allegations - submitting that if they were not true, the respondents
would have responded thereto and produced the requisite proof.
Although tempted by that invitation, I was reluctant to accept it in
view of the omne rite esse acta presumption and the persistent
application of the Scheme by the first respondent over decades.
Having spend considerable time searching through thousands of
unindexed General and Government Notices published since the
promulgation of the Ordinance, I established the first respondent
published the notice contemplated in section 7(2) in Official Gazette
No 3066 dated 15 April 1970. In the circumstances I am satisfied the
provisions of the Ordinance were applied to Walvis Bay.







Before a town planning scheme can become an “approved scheme
under the Ordinance, it has to be submitted to the Minister for his
or her approval (section 22); the Minister has to refer the scheme to
the Town and Regional Planning Commission for its consideration and
report; that commission has to cause a notice to be published in the
Gazette and in local newspapers to inform interested persons of such
submission and to invite objections (section 23); that commission has
to fix a date, time and place for the hearing of the application and
of any objection lodged (section 25(1)); hear such application
(section 25(2)); submit a report to the Minister at the conclusion of
such hearing (section 25(3)) whereafter the Minister, after
consideration of the report may either refuse to approve the scheme
or approve it with or without modification (section 26(1)) and, in
the event of such approval, give notice thereof in the Gazette
whereupon such scheme comes into operation (section 26(2)).







The respondents did not challenge the applicants’ assertion that
the Scheme has not been approved in that manner. They claimed that
the first respondent had given proper notice in terms of section 17
of the Ordinance (published on 16 July 1973 and 1 August 1973
respectively) that its resolution to prepare such a scheme had been
approved by the of Executive Committee and that the Scheme had been
under had been under preparation at all relevant times to the
application. That being the case, they alleged that, pending
approval of the Scheme, section 39 of the Ordinance applied to the
area in respect whereof the Scheme was under preparation. The
relevant portions of that section of the Ordinance provides as
follows:






(1) Where at any time after a resolution to prepare a scheme
has taken effect it appears to the Local Authority … that in the
area to which the scheme is to apply, any projected building …
would not conform to … the amenities of the neighbourhood, or would
be in contravention of the scheme in course of preparation, the local
authority … may prohibit the construction or other proposed work …
or may authorise the same on specified conditions: provided that no
authority shall be granted which would operate in conflict with any
of the provisions of the scheme in course of preparation






On that basis respondents contend that the Scheme applied to the
first respondent’s development and that the provisions of clause
8.4.8 I thereof relating to the “provision of on-site parking
was enforceable against him. That clause reads as follows:






8.4.8 .I. In this zone minimum provision shall be made
on the site for parking and garaging of vehicles on the following
basis:








  1. SHOPS AND BUSINESS PREMISES




In every new building containing shops and business premises
provision shall be made for parking bays on a ration of two parking
bays for every 100 m² of floor area devoted to the
abovementioned uses: provided that the owner shall where in the
opinion of the Council it is undesirable or impractical from a
planning point of view to provide the required parking area on the
site:








  1. acquire the prescribed area of land for the parking facilities
    elsewhere in a position approved by the Council; provided he
    registers a notarial deed against such land to the effect that the
    Council and the public shall have free access thereto for the
    purpose of parking, and the owner shall be bound to level this land
    and surface and maintain it to the satisfaction of the Council: the
    cost of registration of a servitude to be borne by the Council; or








  1. pay a cash sum to the Council, equal to the rateable valuation
    per m² of the land on which the parking is to be provided
    multiplied by the total area required for parking in which event the
    Council shall itself acquire the necessary land for such parking
    purpose.











I am
satisfied that the Scheme applied to Erf 1043 and that the proposed
development contemplated in the approved municipal plans contravened
that scheme (in the course of preparation) to the extent that no
provision was made for parking in that building at the prescribed
ration and that the first respondent was entitled in terms of section
39(1) to authorise the construction of the building on that property
on condition that the applicant should either acquire land for the
parking facilities elsewhere in a position approved by the Council
(as contemplated in subparagraph (i) of clause 8.4.8. I (a) or pay a
cash sum to the Council as contemplated in subparagraph (ii) of that
clause.





Having
indicated that he would rather opt to pay the levy, the first
respondent was entitled to calculate a levy along the formula
prescribed in clause 8.4.8.I (a)(ii) and to render an account for the
payment of such levy or to require of the first applicant to acquire
the prescribed area of land elsewhere for the creation of parking.





For
purposes of the calculation of that levy, the first respondent added
a conservative estimation of the market value of the land in the
central business district of Walvis Bay (per m² unit) and the
development of the costs of a parking area (per m²) by it
together. The sum came to N$140,00 per m². On the basis
thereof it multiplied it with the area of the parking to be provided
and arrived at the figure N$109 200,00 for which it send the first
applicant an account. That, it was not entitled to do. Subparagraph
(ii) of clause 4.8.4 I (a) of the Scheme expressly stipulates the
formula to be applied in calculating the levy i.e. the rateable value
per m² of the land on which the parking is to be provided
multiplied by the total area required for parking. In reply the
applicant pointed out that the rateable value of the land does not
include the development costs of the parking area and, was at all
relevant times N$22,00 per m². Whereas I agree that the
rateable value of the land does not include any component allowing
for development costs of the parking to be provided, I am not
prepared to accept the rateable value suggested by the first
applicant in his replying affidavit for the first time – especially
not in circumstances where he has been shown to have made incorrect
factual statements in that affidavit. I agree, however, with the
applicants that the first respondent’s Council could not have
calculated the levy on any other basis. The first respondent had no
authority to do so and its decision is, in relation to the
determination and payment of that levy ultra vires and falls
to be set aside.





In the circumstances I do not find it
necessary to deal with the other attacks of the applicants on the
validity of the First respondent’s decision in any detail. Suffice
it to say I do not find any merit in them in the circumstances of
this case. I am satisfied that the first respondent’s Council
afforded the applicant sufficient opportunity to make representations
and submissions before it took the decision in question and that
there is no factual basis (on the Kauesa-approach to the factual
disputes) that the respondents or the first respondent’s Council
acted mala fides, arbitrary or grossly unreasonable. The
allegation that the first respondent derogated from the applicant’s
right to equality entrenched in Article 10 of the Constitution by
discriminating against them (because it did not apply the same land
value to land in the central business district of Walvis Bay as that
in a lesser affluent township) is not deserving consideration. That
suggestion is baseless and in my opinion founded on a misconception
that the equality clause in our Constitution contemplates
mathematical equality instead of normative or real equality. (See:
Warwick McKean: Equality and Discrimination under International Law”
(1983) p 6.)






In the circumstances I propose to
refer to the matter back to the first respondent’s Council to
determine the levy with due regard to the provisions of clause
8.4.8.I(a)(ii) of the Scheme and the rateable valuation per m²
of the land on which the parking were to be provided at the time and
direct it to repay the balance of the sum of N$109 200,00 to the
first respondent (which had been paid under protest) within 30 days
from the date of this order. The first applicant’s causa
for the repayment being based that the initial payment was indebite
and made under protest, he is also entitled to interest on the
balance overpaid. (See: De Vos “Verrykingsaanspreekilikheid in die
Suid Afrikaanse Reg” (3rd ed.) p200 and the authorities
referred to therein)














In the result the following order is
made:






  1. The first respondent’s
    decision dated 28 March 1995 is set aside.







  1. The Council of the first
    respondent is directed to reconsider the applicant’s obligation
    under clause 8.4.8.I of the Walvis Bay Town Planning Scheme and to
    determine the parking levy contemplated in subparagraph (ii) of
    paragraph (a) of that clause in accordance with the formula
    prescribed therein at the rateable valuation (per m² unit) of
    the land applicable on 28 March 1995.







  1. The first respondent is ordered
    to repay the difference between the sum of N$109 200,00 and the
    levy determined in terms of paragraph 2 of this order to the first
    applicant within 30 days from the date of this order







  1. The first respondent is ordered
    to pay interest on the amount so calculated at the rate of 20% per
    annum
    from 11 March 1995 until the date of repayment.






4. The first respondent is ordered to
pay the costs of this application.



















_________________________



Maritz, A.J.