Court name
High Court
Case number
APPEAL 287 of 2010
Case name
Vaatz v The Municipal Council of the Municipality of Windhoek
Media neutral citation
[2011] NAHC 178


















Reportable’








SUMMARY



CASE NO.: A 287/2010













IN THE HIGH COURT OF
NAMIBIA













In the matter between:








ANDREAS VAATZ v THE
MUNICIPAL COUNCIL OF THE MUNICIPALITY OF WINDHOEK








PARKER J








2011 June 22


______________________________________________________________________



Practice - Locus
standi in judicio
– Relying on the rule in Wood and
Others v Ondangwa Tribal Authority and Another
1975 (2) 294 (AD),
Court finding that applicant has not established his standing in
seeking an order on behalf of all residents and businesses in all
municipalities (bar Gloudina Street in the Windhoek Municipality)
against all the Municipal Councils for those municipalities and also
for all residents and businesses on Uhland Street, Windhoek.







Practice - The
Court – Powers of – Declaration of rights – In
terms of s. 16 of Act 16 of 1990 – Court accepting that
declaratory order may be sought instead of reviewing the already
completed act following the procedure set out in rule 53 of the Rules
of Court – Court finding that in casu applicant has
neither brought review application in terms of rule 53 of the Rules
nor does he seek a declaratory order in terms s. 16 of Act 16 of 1990
– Consequently, Court holding that the Court has no power to
order the administrative body not to carry out its functions and
perform its duties under an applicable statute – Additionally,
Court holding that the Court has no power to prescribe to the
administrative body (the Windhoek Municipal Council) the manner in
which it should exercise a discretionary power given to it by Act No.
23 of 1992 – Consequently Court dismissing application with
costs.







Costs - On a scale
as between attorney (legal practitioner) and client – When
appropriate – Court finding that in bringing the application
applicant has acted frivolously and vexatiously and with malice –
Consequently, Court exercising its discretion and granting costs on
the scale as between attorney (legal practitioner) and client.











Held, that
declaration is discretionary remedy; and the Court may refuse it if
it thinks fit, for example, if persons who are directly interested in
the proceedings and who are to carry out the order are not joined as
parties.








Held, further that
an applicant may seek a declaratory order instead of reviewing the
already completed act following the procedure set out in rule 53 of
the Rules of Court.
























































































CASE NO.: A 287/2010








IN THE HIGH COURT OF
NAMIBIA



In the matter between:








ANDREAS VAATZ
….............................................................................................Applicant








and








THE MUNICIPAL COUNCIL
OF THE



MUNICIPALITY OF
WINDHOEK
…..................................................................
Respondent













CORAM: PARKER, J



Heard on: 2011 May 23



Delivered on: 2011 June
22



______________________________________________________________________



JUDGMENT








PARKER J



[1] The genesis of this
matter lies in an urgent application brought by the applicant for
relief set out in the notice of motion. It is common cause between
the parties that the relief for an interim interdict contained in the
chapeau of para 2 of the notice of motion has fallen away. It would
seem also that the relief sought in prayer 1, too, has fallen away.
The burden of this Court in these proceedings is, therefore, to
determine the relief sought in paras 2.1, 2.2 and 2.3 in the notice
of motion. Ms Bassingthwaighte represents the applicant, and Mr
Marcus the respondent.













[2] I now proceed to
consider prayer 2.2 of the notice of motion first in which the
applicant says he seeks a declaratory order in terms formulated in
that prayer. As I see it, the question that immediately arises for
determination is the standing of the applicant, who lives at one
location on one street, being 7 Gloudina Street in Windhoek, to seek
a declaratory order against all the Municipal Councils in Namibia
(bar the Windhoek Municipal Council (the respondent)) on behalf of
the ‘majority of residents residing or operating a business in
a street ‘in any municipality in Namibia.’ There is
nothing in the applicant’s papers showing, even remotely, the
basis of the standing of the applicant in these proceedings as far as
prayer 2.2 is concerned in this regard. In my opinion, Wood and
Others v Ondangwa Tribal Authority and Another
1975 (2) 294 (AD)
represents the locus classicus on the principle of locus
standi in judicio
in our law; but the applicant cannot be
thankful of the rule in Wood and Others v Ondangwa Tribal
Authority and Another
. The applicant has not shown what right,
apart from his misplaced zeal and empty officiousness, he has to make
this application (as respects prayer 2.2 and barring the respondent)
on behalf of the ‘majority of residents residing or operating a
business in a street in any municipality in Namibia’ and why
those persons cannot make the application themselves; neither has the
applicant satisfied the Court that he has good reason for making the
application on behalf of all those nameless and amorphous persons in
all the other municipalities in Namibia.








[3] Additionally, I fail
to see, with respect, by what legal imagination does the applicant
intrepidly assume that this Court will grant an order against all the
other Municipal Councils in Namibia in these proceedings when those
Municipal Councils are not parties to these proceedings. Doubtless,
it will not only be unjudicial but also it will go against all the
tenets of rule of law and natural justice, which this Court must
uphold, for this Court to make an order – which is disobeyed at
the pain of punitive measures – requesting a person to carry
out an order when that person is not a party to the proceedings in
which such order is made. I should have said so if I had not looked
at authorities. But when I look at London Passenger Transport
Board v Mascrop
[1942] AC 322 (House of Lords) and Christian v
Metropolitan Life Namibia Retirement Annuity Fund
2008 (2) NR 753
(SC) I feel no doubt that I should exercise my discretion and refuse
what the applicant characterizes as declaration on the ground that
interested persons have not been joined as parties (bar the
respondent). Declaration is a discretionary remedy; and the Court may
refuse it if it thinks fit, for example if persons who are directly
interested in the proceedings and who are the ones (as in the instant
matter) to carry out the order are not joined as parties. I shall
return to this conclusion in due course.








[4] It follows that on
the ground of lack of locus standi in judicio on the part of
the applicant and on the basis that the persons who are directly
interested in the proceedings are not joined as parties (bar the
respondent); and in the exercise of my discretion, the so-called
declaration prayed for in prayer 2.2 of the notice of motion is
refused as respects all municipal councils in Namibia, save the
respondent. I shall deal with the respondent in that behalf next.








[5] I now proceed to
consider prayer 2.2 inasmuch as it relates to the respondent. The
power of this Court to grant declaratory orders flow from s. 16 of
the High Court Act, 1990 (Act No. 16 of 1990) which provides that the
Court has power –








(d) ... in its
discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or
contingent right or obligation, notwithstanding that such
person cannot claim any relief consequential upon the determination.
(My emphasis)








[6] With the greatest
deference to the applicant, prayer 2.2 of the notice of motion is so
inelegantly drafted that I fail to see what declaration of what
rights the applicant prays the Court to make in terms of s. 16 of Act
No. 16 of 1990. As a matter of law, the formulation of prayer 2.2 is
clumsy and meaningless in its intendment; for, as a matter of law and
in terms of the language of the formulation, the only reasonable and
correct construction that prayer 2.2 can carry is that the applicant
prays the Court to prescribe to the respondent the manner in which
the respondent should exercise its discretionary power reposed in it
by the applicable statute, being the Local Government Act, 1992 (Act
No. 23 of 1992). Doubtless, this Court has no power of any hue or
shape, without justification in law, to issue such prescription to a
statutory body in the Executive organ of State on account of the
system of separation of powers that is entrenched in the Namibian
Constitution. This constitutional fact is so elementary and so well
known that I need not cite authority in support thereof.








[7] The fact that the
applicant has ingeniously prefixed prayer 2.2 in the notice of motion
with the clause ‘That the court makes a declaratory order’
does not and cannot by that fact alone metamorphose what is clearly a
prayer to the Court to prescribe into a prayer for
declaration of rights
in terms of s. 16 of Act 16 of 1990.
(Italicized for emphasis) The Village of Koes in terms of Act No. 23
of 1992 does not become the Municipality of Koes in terms of that Act
just because X, a resident of Koes, always refers in his writings to
the Municipality of Koes because in X’s view his village
deserves to be a Municipality.








[8] Thus, as a matter of
law, the applicant has in terms of prayer 2.2 of the notice of motion
not prayed for declaration of rights: the applicant has prayed for
rather an order directed to the respondent, prescribing to the
respondent the manner in which the respondent should exercise a
discretionary power that the Parliament in their wisdom have given to
the respondent in terms of Act No. 23 of 1992. I have not a wraith of
doubt in my mind that the application in that regard is misconceived.
This Court is not competent on any legal plane to give such
prescription in these proceedings. This conclusion disposes of prayer
2.2 inasmuch as it relates to the respondent. It would, with respect,
be otiose and sheer waste of time for this Court to enquire into a
declaration of rights as provided for in s. 16 of Act 16 of 1990; for
there is simply no application for declaration in terms of prayer 2.2
inasmuch as it relates to the respondent. It follows that prayer 2.2
inasmuch as it relates to the respondent must fail.








[9] I have previously
held that prayer 2.2 inasmuch as it relates to all municipal councils
in Namibia must fail. Accordingly I hold that, that prayer 2.2 in its
entirety must fail.








[10] I pass to consider
prayer 2.1; and in doing so, it behoves me – as the reason will
become apparent in a moment – to treat Gloudina Street and
Uhland Street separately and differently. As respects Uhland Street;
I fail to see the legal basis upon which the applicant has locus
standi in judicio
to bring his application on behalf of all the
residents residing or doing business there. In this regard the
reasoning and conclusions respecting prayer 2.2 in relation to all
the other municipal councils in Namibia discussed supra apply
with equal force to Uhland Street. I do not, with respect, give any
respectable look at the list, marked Annexure ‘A’ to the
applicant’s supplementary affidavit, containing names of
persons who live on that street and who, according to the applicant,
‘are totally opposed to the name change of the said streets’.
The supplementary affidavit does not satisfy the requirements of the
rule in Wood and Others v Ondangwa Tribal Authority and Another
supra: the applicant does not show in his papers why those persons
cannot make the application themselves; neither has the applicant
satisfied the Court that he has good reason to make the application
on behalf of those persons. The fact that the applicant has annexed
confirmatory affidavits of his confederates cannot detract from the
fact that the supplementary affidavit, together with the confirmatory
affidavits and a list of their makers, does not satisfy the
requirements of the rule in Wood and Others v Ondangwa Tribal
Authority and Another
supra, and so therefore the supplementary
affidavit, together with the list of the names of the applicant’s
confederates and their confirmatory affidavits, have not one iota of
probative value in these judicial proceedings: they are absolutely
irrelevant. Such a list names may do and have relevance when a group
of angry women, armed with a petition containing a list of names and
signatures of like-minded women, present the petition to the local
magistrate, calling on her not to admit to bail an accused facing a
rape charge. In the result, the application fails as respects prayer
2.1 inasmuch as it relates to Uhland Street, which I am presently
treating.








[11] I now direct my
attention to prayer 2.1 in relation to Gloudina Street; and for the
sake of clarity I set out hereunder prayer 2.1, leaving out any
reference to Uhland Street:








That
the Respondent be directed and ordered not to rename or in any manner
change the name of Gloudina Street ... in Ludwigsdorf ...’








[12] With respect I fail
to see in terms of what power can this Court direct and order the
respondent, an administrative body, not to perform its duties and
carry out its functions under a valid and applicable statute, that
is, Act No. 23 of 1992, as prayed for by the applicant in these
proceedings. In our law an applicant seeking to challenge an act of
an administrative body or administrative official may bring a proper
application before the Court for adjudication. I use the word
‘proper’ advisedly. Such applicant may ‘seek a
declaratory order instead of reviewing the (already completed) act
following the procedure set out in rule 53 of the Rules of Court’
and this approach appears ‘to be the preferred option in the
context of local government ...’ (JR de Ville, Judicial
Review of Administrative Action in South Africa
(2003): pp.
338-339 and the cases there cited; L Baxter, Administrative Law
(1984): pp 698-704 and the cases there cited) But in the
instant matter the applicant has in terms of prayer 2.1 not brought a
review application following the procedure set out in rule 53 of the
Rules, as Mr Marcus correctly submitted; neither does the applicant
seek a declaratory order. In my judgement, therefore, there is no
application before the Court for the Court to determine as respects
prayer 2.1 inasmuch as it relates to Gloudina Street: there is no
application in terms rule 53 of the Rules of Court or an application
in terms of s. 16 of Act 16 of 1990. That being the case, I hold that
this Court is not competent under the common law or statute,
including the Namibian Constitution, to make the order prayed for in
prayer 2.1 of the notice of motion. It follows that the application
as respects prayer 2.1 inasmuch as it relates to Gloudina Street,
too, fails.








[13] I have already
refused the application in respect of prayer 2.1 inasmuch as it
relates to Uhland Street. Thus, the relief sought in prayer 2.1 in
its entirety is refused, too.








[14] There remains the
issue of costs. Mr Marcus argued that this Court should grant costs
on the scale as between attorney and client because of ‘the
disparaging remarks made by the applicant.’ And Mr. Marcus
refers the Court to two judgments of the Supreme Court in support of
his submission, namely, Namibia Grape Growers and Exporters
Association and Others v Minister of Mines and Energy and Others

2004 NR 194 (SC); Vaatz v Klotsch and Others Case No. SA
26/2001 (Unreported). Ms Bassingthwaighte argued contrariwise that
the Court should not grant costs on the scale prayed for by Mr.
Marcus on the basis of ‘the disparaging remarks’. And
what is Ms Bassingthwaighte’s reason for so submitting. For
her, Mr. Marcus should have applied to have the remarks struck off,
Mr Marcus did not, and so Mr Marcus cannot rely on those remarks and
ask the Court to grant costs on the scale as between attorney (legal
practitioner) and client. I must now exercise my discretion and
decide which route to take; and in so doing I must take into account
the facts of this case as they appear on the papers filed of record.








[15] I find that the
statements made by the applicant in the founding affidavit are not
just disparaging as Mr. Marcus describes them; they are calumnious
and vituperative and odious in the extreme, and they are directed at
Hon. Ms Pendukeni Iivula Ithana and the memory of her late husband.
What is more; the insults – and insults they are – are
uncalled for and unjustified; and they can never be countenanced in
any judicial proceedings in any civilized legal system like
Namibia’s. In the applicant’s view, as I see it, the sin
Hon. Ithana has committed to deserve such vituperations and calumnies
is because she dared apply to the respondent to honour her late
husband’s name by renaming a street after him in virtue of Mr.
Ithana’s contribution to the liberation of Namibia and to the
building of Namibia’s post-Independence Public Service; and he
was at one point in time the Chairman of the Public Service
Commission.








[16] Ms Bassingthwaighte
misses the point with her submission, which cannot pull the applicant
out of the dangerous abyss he has fallen into by filing papers in the
Court, containing highly vituperative ad hominem attacks –
attacks that are in the public domain and, a fortiori, against
persons who are not parties to these proceedings and who have no way
of defending themselves. And yet for all this; it is Ms
Bassingthwaighte’s submission – though not in so many
words – that this Court should just airbrush those unjustified
and unsolicited and otiose scurrilities just because counsel for the
respondent has not applied to strike off those foul-spoken
statements. This Court cannot do that. For an applicant who has
approached the Court for redress because, in his opinion, his basic
human right under Article 18 of the Namibian Constitution has been
violated, it is diabolically cynical, to say the least, that the same
applicant does not see that other individuals, too, have the selfsame
basic human rights, also guaranteed to them by the Namibian
Constitution (Article 8 (1) readily comes to mind as respects Hon
Ithana) and that he (the applicant) has no colour of right or
authority to violate that right in his zealous pursuit of enjoyment
of his Article 18 basic right. Moreover, in pursuit of his reckless
desire and malicious intent to annoy, insult and denigrate, the
applicant has chosen to ignore the simple fact that Hon Ithana and Mr
Ithana are not the administrative body that took the decision that
has irked the applicant. They are not the respondent. And as far as
Ms Bassingthwaighte is concerned, if the statements are vituperative
and calumnious or ‘are disparaging’ (in the words of Mr.
Marcus); and so what? If Mr. Marcus thinks they are disparaging, so
Ms Bassingwaithe says, why did Mr. Marcus not apply to have them
struck off? Mr Marcus did not; and so, says Ms Bassingthwaighte, Mr
Marcus cannot stand on the disparaging statements and ask for costs
on the scale as between attorney (legal practitioner) and client.
With the greatest deference to Ms Bassingthwaighte, counsel’s
argument along those lines is colourless and weightless.








[17] It must be
remembered that basic human rights without commitment to responsible
behaviour are made into purposeless absolutes. But I do not think the
Namibian Constitution, with the noble ideals of basic human rights
and rule of law embedded in its bosom, says that those basic human
rights are absolutes – to be enjoyed by an individual without
the individual looking to see if in pursuit of his or her enjoyment
of his or her rights he or she is violating the basic human rights of
other individuals. In the instant case, the applicant did not look to
see. The applicant is only interested in his own enjoyment of his
Article 18 basic human right. The applicant cares less if in so
enjoying he rides rough-shod on and tramples over Hon Ithana’s
basic human right, as aforementioned, and Mr Ithana’s memory.








[18] In my opinion, the
vituperations and scurrilities contained in the applicant’s
founding affidavit are uncalled for and they serve no purpose in
these judicial proceedings except to insult, annoy and denigrate.
Consequently, a look at those statements in the applicant’s
founding affidavit which this Court cannot even demean itself to
repeat in this judgment, impels me to the only reasonable conclusion
that in bringing this application the applicant has acted in a
frivolous and vexatious manner, and the applicant was motivated by no
other motive but malice – and malice writ large – in that
the applicant is prepared to use the process of the Court to cast
unjustified, uncalled for and irrelevant aspersions on persons who,
as I have said ad nauseam, are not parties to these
proceedings and, therefore, cannot defend themselves.








[19] I have not a shadow
doubt in my mind that if there are cases in which the Court must –
not may – mulct the errant party with costs on the scale as
between attorney (legal practitioner) and client, the present case
will indubitably take top honours, that is, gold. Consequently, the
appropriate order that this Court should make in order to signalize
the Court’s total revulsion at the reprehensible and odious
conduct of the applicant is to order costs on a scale as between
attorney and client. And I am fortified in my conclusion and decision
by the high authority of Strydom, CJ in Namibia Grape Growers and
Exporters v Ministry of Mines and Energy
2004 NR 194 (SC).








[20] For all the
aforegoing conclusions and reasoning, I make the following order:








The application is
dismissed with costs on a scale as between attorney (legal
practitioner) and client.


















__________________



PARKER J

































COUNSEL ON BEHALF OF
THE APPLICANT:
Adv. N Bassingthwaighte








Instructed by: Andreas
Vaatz & Partners




























COUNSEL ON BEHALF OF
THE RESPONDENT:
Mr N Marcus








Instructed by: Nixon
Marcus Public Law