REPUBLIC OF NAMIBIA
REPORTABLE
CASE NO: A 310/08
IN THE HIGH COURT OF NAMIBIA
In the matter between:
MARIA SUSANA KLEYNHANS APPLICANT
and
THE CHAIRPERSON OF THE COUNCIL FOR THE
MUNICIPALITY OF WALVISBAY FIRST RESPONDENT
JOHNNES ABRAHAM BURGER SECOND RESPONDENT
MINISTER OF REGIONAL AND LOCALGOVERNMENT,
HOUSING AND RURAL DEVELOPMENT THIRD RESPONDENT
BV INVESTMENTS 605 CC FOURTH RESPONDENT
CORAM: DAMASEB, JP
Heard on: 12 October 2009; 6 - 8 April 2010
Delivered on: 24 March 2011
JUDGMENT
DAMASEB, JP: [1 ] By way of Notice of Motion dated 22 October 2008, the applicant sought an order in the following terms:
Reviewing and setting aside the decision of the first respondent, as reflected in building permit issued on 18 March 2008, approving building plans in respect of erf 95 Langstrand ('the property');
Alternatively to paragraph 1 above, reviewing and setting aside the decision of the first respondent, as reflected in building permit issued on 30 May 2005, approving building plans in respect of the property.
Declaring that the construction of the dwelling houses on the property is in contravention of the first respondent's Town Planning Scheme;
Directing the second respondent to demolish such dwelling houses, alternatively such portion thereof as may be necessary to comply with the provisions of the first respondent's Town Planning Scheme;
Pending demolition and in any event, interdicting and restraining the second respondent from using or occupying, or causing or permitting to be used or occupied, the said dwelling house.
Directing that the first respondent pay the cost of this application, jointly and severally with such other respondent who may oppose;
Granting further and/ or alternative relief.
[2] The applicant seeks the above relief on the premise that two dwelling houses, said to be mirror images of each other, were built on a property adjacent to that of the applicant's in circumstances where the applicable Town Planning Scheme of the municipality of Walvisbay only allowed one dwelling house in 'single residential' zoned areas, except if the first respondent's municipal council ('council') by 'special consent' allowed that to happen. In addition, the applicant seeks to enforce against the second dwelling in question the 'setback provisions, the two storey height restrictions, and thecoverage restriction as provided for in the Town Planning Scheme ('TPS') of the said municipality, a local authority created under s 2 read with s 3 (as amended)1 of the Local Authorities Act, No. 23 of 1992. She also relies on a servitude in the title deed of the neighbour's property.
THE PARTIES:
[3] The applicant is Mrs. Maria Susana Kleynhans, an adult female residing at erf 423, Langstrand, Walvisbay and is the registered owner thereof. The first respondent is the chairman of the municipal council of the Municipality of Walvisbay, duly established as such in terms s 2 read with s 3 (as amended) of the Local Authorities Act, No. 23 of 1992 ('the LAA'). The second respondent is Johannes Abraham Burger who resides in Windhoek and was, until 14 July 2009, the sole registered owner of erf 95, Langstrand, which is adjacent to the applicant's erf 423. The third respondent is the Minister of Regional and Local Government, Housing and Rural Development with statutory powers over the first respondent under the LAA. The fourth respondent is BV Investments 605 CC, a Close Corporation which became part-owner of erf 95 on 14 July 2009. When the applicant launched the present proceedings on 22 October 2008, the fourth respondent was not joined. It was only in October 2009 - a few days before 12 October 2009 when the case was to be heard - that the fourth respondent was joined, resulting in a postponement.
[4] At the commencement of the hearing, Mr Rosenberg submitted in oral argument that in the intervening period since the postponement on 12 October 2009, the issues in thecase had become confined and that the raft of the preliminary issues raised by the first respondent, save non-joinder and unreasonable delay, have fallen away. He reiterated that the applicant seeks a declarator following from the review relief. In the event of the review relief being granted, the Court is invited to afford the first, second and fourth respondent the opportunity to regularize what had been done irregularly and that - in such an event - demolition stands over pending such regularization which should however take into account the applicant's right to audi. In their answering papers, both the first and second respondents echo the point that should the review be successful, the Court should afford them the opportunity to put right that which is the subject of complaint in the review.
THE PLASCON- EVANS RULE APPLIES
[5] The present being motion proceedings in which final relief is sought, the rule in Plascon- Evans2 applies: motion proceedings are designed for the resolution of common cause facts3 but should disputes of fact arise on the papers, the Court may still grant a final order if the facts deposed to by the applicant and admitted by the respondent, together with the facts put up by the respondent, justify such an order. Even if facts are not formally admitted, but it is clear that they cannot be denied, the Court must regard them as admitted. In certain circumstances, denial of a fact may not be such as to raise a real, genuine or bona fide dispute of fact. Should a genuine dispute of fact arise on the papers but it is not referred to oral evidence, the Court mustaccept the version of the respondent unless it is so far-fetched that it can be rejected on the papers.4
SALIENT COMMON CAUSE OR ADMITTED FACTS
[6] The applicant is the registered owner, together with another person, of erf 423 situated at Longbeach (Langstrand) in the Walvis Bay municipal area. Erf 95 is now jointly owned by the second and fourth respondents and is situated at Longbeach. The Longbeach area falls under the jurisdiction of the Walvis Bay local authority created in terms of s 2 read with s 3 (as amended) of the LAA. In 2005, the second respondent applied to the council to construct two dwellings on erf 95. Approval was granted but lapsed as the second respondent did not proceed with the construction. He resubmitted the plans in 2008 and on 18 March 2008 the council granted approval for the construction of two dwellings on erf 95. The two dwellings were intended to be mirror images of each other and were approved as such by the council. Erf 423 borders 95 on the western side. Part of the structures erected on erf 95 face the common boundary with erf 423. The middle wall of the structure on erf 95 runs right up to the boundary with
erf 423.
[7] The construction on erf 95 was , at the time it happened, governed by the Walvis Bay Town Planning Scheme ('TPS'), enacted and proclaimed by the municipality on 15 February 1997 in Government Gazette Notice No.17, pursuant to the provisions of the Town Planning Ordinance 1954 ( 'the Ordinance').
[8] Erf 95 falls in density zone 4 in terms of PART III, clause 12, Table C of the TPS. The applicable building restriction in density zone 4 is 'one dwelling unit or dwelling house per 300m5'. Clause 12.3 of the TPS states:
"Not more than one dwelling house or residential building may be erected on any erf without the consent of the Council."
Therefore , clause 12.1, read with Table C, of the TPS provides for a density requirement which limits the number of dwelling houses and dwelling units which may be erected on erven in density zone 4 (where the property of the applicant and the second and fourth respondent fall), to one dwelling unit per 300 square meters.
[9] The definition of dwelling house in terms of clause 1 (definition) of the TPS is:
'(i) a main house which means a dwelling consisting of a suit of interconnected mutually adjacent rooms with kitchen and with at least a bathroom with toilet facilities and designed for occupation by a single family;
And/or
(ii) an outbuilding which means a subsidiary building used in connection with the dwelling house;
And/or
(ii) a second dwelling which means, subject to the special consent of the Council, an additional subsidiary second dwelling house.' [My underlining for emphasis]
[10] In terms of the definition section a second dwelling is possible only with the 'special consent' of the council which grants special consent in terms of clause 9 of the TPS after the applicant had published at his own expense, once a week for two consecutive weeks in an English newspaper circulating in the area, a notice of his intention to make such an application, affording any person having any objections to the proposed use of land or the erection and use of the proposed building the opportunity to object with the council and also with the applicant in writing.
[11] Clause 4 of the TPS provides that except with the consent of the council, no building or structure or any portion thereof shall be erected nearer than 3m to any lateral or rear boundary common to an adjoining erf. Clause 18 of the TPS restricts buildings in a single residential zone to a height of two storeys unless the council consents to the increase in the number of storeys if satisfied that the applicant therefore has furnished sufficient proof that a greater height is necessary and or desirable.
[12] In terms of clause 17 read with table E of the TPS, a building may not cover more than 50% of the site.
THE APPLICANT'S CASE
[13] The main supporting affidavit, duly confirmed by others as appropriate, was deposed to by the applicant. She duly amplified her papers in terms of High Court Rule 53 (4) after the first respondent made the record available. The applicant avers that she and her partner, Mr. Alfred Hertzberg, consolidated erf 87 and erf 88 into one erf 423 on 9 July 2003. At the time that happened, she alleges that she made enquiries with officials of the municipality regarding the zoning and, in particular, the restrictions applicable to the development and use of theirs and the surrounding properties (including erf 95). She established from these enquiries that all the affected properties were zoned 'single residential' in terms of the TPS. According to her, land zoned 'single residential' may be used, or buildings erected thereon, only for the purpose of a dwelling house. She maintains that in terms of clause 12.3 read with Table C of the TPS not more than one dwelling house or residential building may be erected on any erf without the special consent of the council. The applicant alleges that it was on the strength of the restrictions applicable to the erven of which theirs (and erf 95) is part, and the advice obtained that the first respondent is legally bound to enforce the terms of the TPS, that she and her partner developed erf 423 by constructing one dwelling house.
Alleged unlawful approval
[14] The applicant states that the record of the decision filed on behalf of the first respondent demonstrates that of the two dwelling houses constructed on erf 95, none is subsidiary to the other but that the two are mirror images of each other. This, according to her, resulted in two very substantial dwelling houses contrary to the TPS and without there being obtained the special consent from the council for the second dwelling. She maintains that no such special consent had at any stage been sought or granted. The applicant submits that in granting building plan approval, the council failed to apply its mind properly to the question at hand or was materially influenced by an error of law in thinking the definition of a 'single dwelling' in the TPS permits the erection of two dwelling houses on a property zoned single residential.
[15] The applicant also contends that the 2008 approval was merely an endorsement of the 2005 approval instead of the council treating the 2008 application as a fresh application which required fresh consideration. Accordingly - the argument goes - the council erred and misdirected itself by taking into account irrelevant considerations; failed to take into account relevant considerations and further failed to apply its mind to the decision it was called upon to make.
[16] The applicant further contends that the building plans and the buildings erected thereon infringe the 3m building setback provisions provided for under section 4 of the TPS. She relies on a photograph attached to her papers for the allegation that part of the structures erected on erf 95 facing the common boundary with applicant's erf 423 runs right up to the boundary with applicant's erf 423 with no allowance for any setback being made.
[17] The applicant also alleges that the construction on erf 95 is , in contravention of the TPS, in part a three storey as opposed to a two storey as, according to her, the second storey of the building is more than 4m and therefore constitutes a 'pro rata plurality of storeys'. Since no consent therefore was granted by the council, she maintains, this is in breach of clause 18 of the TPS.
[18] The applicant alleges further that the first floor of the building on erf 95 is 294, 3 square meters and is thus more than 50% of the total area of the site (i.e.433sqm) in contravention of clause 17 of the TPS. The applicant's case is that in the absence of consent by the council, clause 17 was also contravened.
THE FIRST RESPONDENT'S CASE
[19] Mr. Jacobus Adriaan Louw deposes to the main affidavit on behalf of the first respondent. Louw is the municipality's engineer: Roads and Building Control Department since 1995 and is duly authorized in such capacity to, amongst others, approve building plans, approve the erecting of second dwellings on erven and to approve the increase of storeys for buildings. The deponent states that he has been approving building plans since 1991 and has obtained extensive experience and knowledge of various building regulations and town planning schemes including that of fist respondent. In a nutshell, the defence he puts up on behalf of the first respondent is that the approval of the building plan on erf 95 complied with the TPS and that approval for the construction of two dwellings on erf 95 is permissible under the TPS without special consent of the council and that in the event it is found that consent was required, the same was granted by him under delegated authority. He submits that the applicant's interpretation of the TPS - in insisting that two dwellings are not permitted on a single residential zoned property falling in density zone 4 - is erroneous. Louw also avers that he had been delegated by the council to grant approval of applications for the relaxation of building lines and erection of buildings on boundaries; increasing building coverage on erven; and approval of an increase in the number of storeys.
[20] As regards the building line restriction of 3 meters, Louw states that the necessary building line relaxation was applied for by the second respondent and that approval was granted therefor. He says that a wall was built by the second respondent which encroaches on the 3 m building setback provision in respect of which no relaxation was applied for or obtained and that second respondent was directed by the municipality to either submit new building plans for approval or demolish it.
[21] Louw concedes that an insignificant part of the building on erf 95 exceeds the 4 meter limit by 60 centimeters and that under delegated authority he approved it given the insignificant extent of the infringement. Louw says that the part that infringes does not relate to a habitable storey but to a staircase and that he was satisfied that the approval of the 60 centimeters above the norm was necessary and desirable in the circumstances.
[22] Louw concedes further that the coverage on erf 95 marginally exceeds the minimum of 50% of the site but that he approved it.
[23] Louw avers that the applicant asks for a rigid and inflexible application of the provisions of the TPS while, to her knowledge, in appropriate cases some latitude is allowed by him acting on behalf of the municipality and that the applicant had in the past been a beneficiary of such latitude. He also adds that to the extent the Court finds that in approving building plan approvals on erf 95 there was non-compliance with the applicable legal provisions, the first respondent's case is that there was substantial compliance.
First respondent's points in limine:
[24] Louw denies that the applicant is entitled to the relief she seeks. He also raises four points in limine, but in the way the litigation has since evolved, only two remain: being unreasonable delay in bringing the review application and the non-joinder of a 'necessary' party, the Namibian Planning Advisory Board (NAMPAB).
Unreasonable delay
[25] Louw contends that there was unreasonable delay in bringing the review application and that there is no explanation by the applicant for the delay. The delay, it is said, prejudices the first respondent because as a result thereof the second respondent had proceeded with the construction of the second dwelling sought to be demolished and if the application succeeds, the second respondent may be compelled to demolish such dwelling house or a portion thereto - thus exposing the first respondent to a litigious risk as this might ultimately result in litigation against the first respondent for any damage that the second respondent may suffer as a result of having to demolish the structures constructed on the strength of the municipality's approval of the building plans. The first respondent further states that because of the delay it was placed at a disadvantage in having to collect and to articulate information relating to historical events.
Non-joinder of NAMPAB
[26] The other point raised in limine by the first respondent is that NAMPAB, created in terms of s 9 of the Ordinance, is entrusted with the duty to advice the third respondent on matters relating to the preparation and carrying into effect of Town Planning Schemes and as such, considering that the first respondent's application for rezoning of certain properties (including that of the second respondent) was still pending before NAMPAB -a decision by NAMPAB granting such rezoning would render the application for review academic as that which is now objected to would be properly authorized by such rezoning. The first respondent thus asked for a stay in the proceedings pending the outcome of the proceedings before NAMPAB, alternatively, pending the joinder of NAMPAB to these proceedings.
THE SECOND RESPONDENT'S CASE
[27] The second respondent's answering papers do not add a great deal to the facts upon which the application is to be adjudicated as far as non-compliance with the TPS is concerned. For the most part he aligns himself to the position of the first respondent, adding only that he faces the risk of serious legal action based on breach of contract if the relief is granted. He also raises the point in limine, elaborated in the heads of argument filed of record, that the applicant lacks locus standing for the relief she seeks as she has not established a clear right that was breached as a result of the erection of the allegedly offending buildings.
DISCUSSION OF THE POINTS IN LIMINE
Lack of locus
[28] On behalf of the second and fourth respondents it is argued that the applicant has failed to demonstrate a clear right that has been interfered with and that she has no satisfactory remedy to protect herself from the breach.5 It is said that the applicant failed to demonstrate that amenities relating to her property were negatively affected by the construction on erf 95 and that to the extent that she relies on the diminution in the value of her property, she has a damages claim.
[29] I am not persuaded by this argument. Town Planning Schemes can in an appropriate case such as the present entitle affected residents to have them enforced. The applicant's property, it is common cause, borders that of the second respondent. I agree with the following statement in BEF (Pty) Ltd v Cape Town Municipality and others 1983 (2) SA 387 (C) at 401B-F6:
'In my view a person is entitled to take up the attitude that he lives in a particular area in which the scheme provides certain amenities which he would like to see maintained. I also consider that he may take appropriate legal steps to ensure that nobody diminishes these amenities unlawfully...In the present case ...the applicant is an immediate neighbour to the property on which the non-conforming garage was built.
[30] More importantly, the argument advanced by the second and fourth respondent flies in the face of the doctrine of legality: It is a carte blanche to arbitrariness which is the antithesis of the new ethos brought about by the Namibian Constitution that all administrative action derive legitimacy from either the Constitution and laws (which include subordinate legislation) made under it. The second and fourth respondents' point in limine must fail.
Non-joinder
[31] This point in limine is a dilatory one and specifically sought that the proceedings await the outcome of the proceeding pending before NAMPAB, alternatively pending it being joined. As I understand the legal position, it certainly was not intended - andcould not have had the effect of - extinguishing the cause of action on which the application is based.7
[32] The leading case on joinder in our jurisprudence is Amalgamated Engineering Union v Minister of Labour, 1949 (3) SA 637 (A). It establishes that it is necessary to join as a party to litigation any person who has a direct and substantial interest in any order which the court might make in the litigation with which it is seized. If the order which might be made would not be capable of being sustained or carried into effect without prejudicing a party, that party was a necessary party and should be joined except where it consents to its exclusion from the litigation. Clearly, the ratio in Amalgamated Engineering Union is that a party with a legal interest in the subject matter of the litigation and whose rights might be prejudicially affected by the judgment of the Court, has a direct and substantial interest in the matter and should be joined as a party.8
[33] NAMPAB is created by s 9 (1) of the Ordinance. In terms of s 12 (1) of the Ordinance, it has predominantly advisory powers and is responsible for setting the policy framework in town planning matters.9 The advisory role is towards the third respondent and local authorities such as the first respondent. The Ordinance specifically states that any power or function to be exercised by NAMPAB in terms of the Ordinance shall only be performed 'if the minister so directs'. It does not therefore act independently.
[34] The first respondent maintains that it was necessary for the applicant to join NAMPAB. The applicant disagrees. Her position is that joinder was not necessary because the Minister was joined - and in any event only out of excess of caution. He did not have to be joined as the competent authority implicated by the review application is the first respondent. The applicant maintains that the pending procedure before NAMPAP was an application by first respondent to rezone and that has nothing to do with the issue before court at this point in time. I agree. What we are here concerned with is the manner in which the first respondent interprets and implemented an existing policy contained in the TPS. That does in no way affect the legal rights of NAMPAB. Even if it were to make a recommendation favorable to the first respondent, that still requires to be acted on by the third respondent who in event chose not to oppose the present proceedings.
[35] As Mr Rosenberg correctly submitted, the Ordinance provides for a scheme whereby the Minister - not NAMPAB - administers the planning legislation. That much is abundantly clear from secs 4-7 of the Ordinance. The first respondent had, in part, justified the need for the joinder of NAMPAB on the premise that there was then pending before it the munipality's rezoning application of the land on which erf 95 is located. In the replying affidavit, the applicant avers that NAMPAB had since unfavourably recommended that rezoning application to the Minister who acted on the recommendation. The first respondent says the allegation is hearsay and seeks to have it struck. Given NAMPAB's mere advisory role in relation to the Minister and the first respondent, I would still have come to the conclusion that NAMPAB was not a necessary party. The allegation sought to be set aside therefore adds nothing to the debate and I need not decide if it is hearsay.
[36] I come to the conclusion that the first respondent failed to establish that NAMPAB would be prejudicially affected by the decision of this Court. I am unable to see what is NAMPAB's direct and substantial legal interest in the review application that will be prejudicially affected by a decision in this matter. Accordingly, the non-joinder point fails.
Unreasonable delay
[37] For the adjudication of this point in limine, the following facts are common cause:
(i) The building plan approval which is the subject of challenge was taken on 18 March
2008.
(ii) The applicant became aware of the construction by the second respondent on erf 95 in June 2008 and discussed it with her legal practitioner in June 2008 when the lawyer begun to investigate the matter.
(iii) On 17 June 2008, the applicant's lawyer directed a letter to the first respondent objecting to the second respondent's construction on erf 95 and asked that it require the second respondent to cease the construction.
(iv) The first respondent replied to the applicant on 30 June 2008 and made clear that the construction by the second respondent was in furtherance of building plan approvals granted by it and that noting was untoward in either the approval or the construction by the second respondent.
(v) On 7 July the applicant wrote to the second respondent demanding he ceases construction and give an undertaking to that effect. On 14 July 2008 the second respondent wrote to the applicant informing her that the construction would not cease.
(vi) The applicant then - on 30 July 2008 - asked the first respondent to provide her with copies of the building plan approvals and other relevant documents in respect of erf 95 which the first respondent by letter dated 27 August 2008 declined to provide but on the same date changed tact and furnished the applicant the information asked for.
(vii) The application for review was then launched on 22 October 2008.
(viii) The completion certificate in respect of the disputed buildings on erf 95 was granted by the first respondent on 20 November 2008.
[38] The first respondent had initially asked for the striking of other matter from the applicant's papers. Mr Cohrsen abandoned most of them in oral argument except paragraph 8 of the notice to strike directed at paragraph 27 of the applicant's reply in the following terms:
'The account in my founding affidavit of the steps I took after commencement of construction reveals that I caused the matter to be investigated, without any delay whatsoever and to the extent possible'.
[39] The passage in question is sought to be struck on the basis that it impermissibly introduces new matter in reply, alternatively is irrelevant or vexatious. Even if the impugned passage were allowed to stand it would in my view not assist the applicant in making out the case that there was no unreasonable delay, because in the founding papers she does not set out the steps that necessarily and reasonably she took which justified her not seeking urgent relief in the circumstances that I will soon set out. Since the impugned passage adds nothing of significance it is, as suggested, irrelevant and I strike it for that reason.
Was there unreasonable delay?
[40] The applicant disputes that there was unreasonable delay in bringing the review application and states that the period between the sending of the letter of demand and the launching of the application was relatively short ; that instituting legal proceedings requires investigation and preparation; that the first respondent only provided the information asked for on 27 August 2008; that she had to consult with counsel and obtain advice on prospects of success before embarking on litigation and that it had always been clear to the respondents that she challenged the lawfulness of the building plan approval and that legal proceedings were imminent.
[41] In Ebson Keya v Chief of Defence Forces and 3 others10 the court had occasion to revisit the authorities on unreasonable delay and to extract from them the legal principles applied by the Courts when the issue of unreasonable delay is raised in administrative law review cases. The following principles are discernable from the authorities examined:
(i) The review remedy is in the discretion of the Court and it can be denied if there has been an unreasonable delay in seeking it: There is no prescribed time limit and each case will be determined on its facts. The discretion is necessary to ensure finality to administrative decisions to avoid prejudice and promote the public interest in certainty11. The first issue to consider is whether on the facts of the case the applicant's inaction was unreasonable: That is a question of law.
(ii) If the delay was unreasonable, the Court has discretion to condone it.
(iii) There must be some evidential basis for the exercise of the discretion: The Court does not exercise the discretion on the basis of an abstract notion of equity and the need to do justice between the parties;
(iv) An applicant seeking review is not expected to rush to Court upon the cause of action arising: She is entitled to first ascertain the terms and effect of the decision sought to be impugned; to receive the reasons for the decision if not self-evident; to obtain the relevant documents and to seek legal and other expert advice where necessary; to endeavour to reach an amicable solution if that is possible; to consult with persons who may depose to affidavits in support of the relief.
(v) The list of preparatory steps in (iv) is not exhaustive but in each case where they are undertaken they should be shown to have been necessary and reasonable.
(vi) In some cases it may be necessary for the applicant, as part of the preparatory steps, to identify the potential respondent(s) and to warn them that a review application is contemplated.12 In certain cases the failure to warn a potential respondent could lead to an inference of unreasonable delay.
[42] Writing for a two-judge bench of this Court in Disposable Medical Products v Tender Board of Namibia 1997 NR 12 at 132D) strydom jp said:
'In deciding whether delay was unreasonable two main principles apply. Firstly whether the delay caused prejudice to the other parties and secondly, the principle applies that there must be finality to proceedings. Although the Court has discretion to condone such delay it is seldom if ever, prepared to do so where the delay caused prejudice.'
[43] I wish to repeat the following remarks in the Keya case at 10-11, para 19:
'In my experience, every review and setting aside of an administrative decision causes prejudice of one or other kind to a respondent in a review application. Proof of prejudice, without more, should not take the matter very far. Otherwise a Court would not grant review. What is needed is proof of prejudice which could have been averted if notice were had of an impending review. The more substantial such prejudice, the more it strengthens the conclusion that the delay in bringing a review application was unreasonable. In exercising the discretion whether or not condone unreasonable delay, the Court may have regard to the conduct of a respondent in so far as it may have contributed to the delay.'
[44] To the above, I wish to add the following: the length of time that had passed between the cause of action arising and the launching of the review is not a decisive factor although no doubt important. The crucial consideration is the extent to which passage of time - in view of the nature of relief and the subject to which it relates -either weakens or has no or little bearing on, the efficacy of the relief sought. The less efficacious the relief sought or the more serious the prejudice it causes on account of the delay, the stronger the inference that the delay was unreasonable.
[45] In the present case, approval for the building plans was granted in March 2008. According to the applicant, she became aware of the construction of a second dwelling in June of 2008 and asked her lawyer to investigate. In July she asked the second respondent to cease such building and directed a letter to the municipality asking it to direct the second respondent to cease such building and to be given copies of all the documents relating to the approval for the construction by second respondent of two dwelling houses. The municipality provided the same on 27th of August 2008. On 16th October 2008 the founding papers were deposed and were launched on 22 October 2008. It is on these facts that I must decide whether there was unreasonable delay.
[46] It is true that the municipality knew as early as June 2008 that the applicant was dissatisfied with the manner in which approval was granted to second respondent for the construction of the dwelling house on erf 95 Langstrand. The second respondent was aware that the applicant took exception to its construction of a second dwelling house on erf 95 Langstrand and demanded that the building activity cease. Although the relevant documents dealing with the impugned building plan approval were requested by the applicant on 30 July 2008, the municipality took close to a month (27 August 2008) to provide it.
[47] It was quite reasonable for the applicant to first seek to establish just what was going on before engaging in litigation, especially on an urgent basis when she, on 17 June 2008, became aware of the construction. It was also reasonable and necessary for her to demand from the respondent that the construction cease. The letter (which was not copied to the second respondent) stated the following:
"1. Our client is the registered owner of erf 423, Longbeach, and Walvis Bay, previously known as erf 87 and 88 Longbeach, Walvis Bay;
2. Building activities recently commenced in front of our client's property on erf 95, Longbeach, and Walvis Bay;
3. The building activities on erf 95, Longbeach, and Walvis Bay indicate that two residential units are in the process of being erected on the said erf;
4. Erf 95, Longbeach is a single residential zoned property with a density of 1:300;
5. Erf 95, Longbeach is less than 600m2; and
6. Our client objects to the construction of two residential units on erf 95, because it is clearly not in accordance with the provisions of the Walvis Bay Town Planning scheme in so far as it does not comply with the density zoning applicable to the said property.
In the light of the above our client has instructed us to demand from you, which we hereby do, that your good office instructs the owner of erf 95 Longbeach Walvis Bay to immediately cease with the construction of the second dwelling on the said property and to let us have your written confirmation of such instruction and compliance therewith by the owner, within 7 days hereof, failing which, we hold instructions to bring and urgent application in the High Court of Namibia for a mandamus against your Council to force your Council to properly enforce its town planning scheme, as well as an interdict to have the building activities stopped.
We also at this stage apply for copies of the following documents, the cost of which our client tenders to pay:
a. Written confirmation that the said erf 95 is zoned single residential with a density
zoning of 1:300;
b. A copy of the special consent application to your Council by the owner erf 95 for the
erection of a second dwelling on the single residential property;
c. A copy of your Council's resolution granting this application for special consent; and
d. Copies of the two advertisements placed in the local newspapers advertising the fact
that special consent will be applied for." (My underlining for emphasis)
[48] The following is clear from the above letter: That the applicant knew two residential units were being constructed on erf 95 contrary to the TPS; that remedial steps were required within 7 days failing which urgent interdictory relief and a mandamus were contemplated.
[49] The municipality replied to the letter of 17 June 2008 on 30 June 2008 in the following terms:
'Herewith are the responses to your abovementioned letter:
a) Erf 95 Langstrand is zoned as "Single Residential" with the density zoning of 1 per
300m2,
b) A Building Permit for the development of a dwelling house (comprising of a main dwelling and a second dwelling) on erf 95 Langstrand was issued on 30 May 2005 and renewed on 18 March 2008. The original approval was based on the then interpretation of the Walvis Bay Town Planning Scheme, which defines a dwelling house as "a main house ... and/or an outbuilding ... and/or a second dwelling..."
c) The owner of erf 95 Langstrand was not required to apply for consent, as "dwelling houses" are primary rights on "Single Residential zoned erven.
d) The adjacent neighbours, the owners of erven 94 and 96 Langstrand, gave consent for the relaxation of the building line.
e) Based on various discussions with the Ministry of Regional and Local Government, Housing and Rural Development, the Council has been advised that:
i) all "Single Residential" erven, where building plans, for the development of two dwellings on one erf have been approved, should be rezoned from "Single Residential" to "General Residential 1" (with relevant densities);
and
ii) as from 20 September 2005, a moratorium be placed on the approval of new building plans for the development of two (or more) dwellings on a
"Single Residential" zoned property
f) In view of the above, the rezoning of erf 95 Langstrand to "General Residential 1" with the density zoning of 1 per I50m2 was approved by the Council and forms part of Walvis Bay Amendment Scheme No 20, which has been submitted to the Ministry of Regional and Local Government, Housing and Rural Development
g) Walvis Bay Amendment Scheme No 20 was advertised in the press and one objection was received from your client (owner of erf 423 Langstrand). The objection letter has been forwarded to the Ministry of Regional and Local Government, Housing and Rural Development for consideration. h) The rezoning and recommended density of erf 95 Langstrand (and other Langstrand erven) is in accordance with the Walvis Bay Residential Density Policy.
Based on the above, the Council is not in position to instruct the developer to cease building constructions on erf 95 Langstrand.
In case of any queries, or the need for clarification, please do not hesitate to contact the Town Planning Section.' (My underlining for emphasis)
[50] The letter does, in my view, provide both the factual background and the legal basis (as the municipality saw it) on which the construction work on erf 95 was taking place - the very construction work that irked the applicant and which she was determined to have stopped by means of urgent relief. What is clear in particular is the following: the municipality granted building plan approval to the second respondent in respect of erf 95 that involved the construction of two dwellings initially on 30 May 2005 and renewed it on 18 March 2008. It is also clear that no 'special consent' was granted for the construction of the second dwelling and that the municipality took the view that it was not required. These facts form the core basis for the present review application, except for the grounds founded on the technical violations.
[51] No urgent interdictory relief was sought by the applicant upon receipt of this rather detailed letter setting out, as I said, the factual and legal bases for the construction work taking place on erf 95. If the applicant needed more information before doing so, her founding papers do not say what information and why. What the applicant also does not spell out in the founding papers is what state of progress the construction work on erf 95 had reached at this stage. The papers are also silent on whether the second respondent was aware of the exchange of letters between the first respondent and the applicant at this stage. What we do know is that on 6 July 2008 the applicant demanded from the second respondent to cease the construction work and to give a written undertaking within 7 days.
[52] The letter reads as follows:
"It is our instructions that:
1. Our client is the registered owner of erf 423, Langstrand, Walvis Bay ("our client's property");
2. You are the registered owner of erf 95, Langstrand, Walvisbay ;
3. Erf 95, Langstrand Walvis Bay abuts our clients property on the western border of our client's property; and
4. You are in the process of constructing two residential dwellings on erf 95, Langstrand, and Walvis Bay.
The second dwelling erected on your property is illegal insofar as it is in conflict with the definition clause of "dwelling house" of the Walvis Bay Town Planning Scheme and is furthermore also in conflict with clause 12.3 and table C of the same town planning scheme.
We have therefore been instructed to demand from you, which we hereby do, that you immediately cease with the construction of the second dwelling and provide us with a written undertaking to that effect, within 7 days hereof, failing which we hold instructions to proceed with an application to the High Court of Namibia for an interdict to prevent you from completing the second dwelling and to interdict you to remove the second dwelling.
We must advise that if you elect to proceed with the construction of the second dwelling on your property you will do so at your own risk." (My underlining for emphasis)
[53] On 14 July 2008, the applicant received a reply and it was clear therefrom, not only that the construction work would not cease, but that the second respondent saw nothing legally wrong with the construction work on erf 95. The terse letter states:
'Refer to your letter DD 6 July 2008. (Hand delivered to the building contractor on 8 July
2008.)
1. I am the registered owner of erf 95 Langstrand, Walvis Bay.
2. Walvis Bay Municipality and the Board approved my building plans and as from the beginning of this project, no objections have been raised. It would be sufficed to take the matter up with the Municipality of Walvis Bay.
3. Furthermore, the construction will go ahead as planned." (my underlining for emphasis)
[54] It is common cause that even at this stage the applicant did not seek any interdictory relief on an urgent basis but instead, some 16 days after the second respondent's reply and 30 days after the letter of the first respondent, asked for information from the first respondent about the construction work on erf 95. The applicant's papers are again silent on what state of progress the construction work on erf 95 had reached on 30 July 2008 when she caused to be written this letter asking for information. The letter did not set any deadline by which the municipality should provide the information asked for. In view of the second respondent's attitude as reflected in the letter of 14 July 2008, it is reasonable to assume that even as at 30 June 2008 and beyond, the construction work had not ceased on erf 95. The applicant is silent on what she did between 30 June 2008 and 27 August 2008 - the latter being the date on which she received the information from the first respondent asked for in her letter of 30 July 2008. What is clear is that she did not, although entitled to, seek any urgent interdictory relief to arrest the progress of the construction work on erf 95.
[55] Although the first respondent took close to a month to provide the applicant with the information she asked for, the question remains: was it necessary and reasonable for her to wait as long as she did to bring the review application and what militated against seeking urgent relief based on the facts that were known to her as demonstrated in her letters of demand and at the latest after she got a full explanation from the municipality on 30 June 2008? Between 30 June 2008 and the date of the launching of the application, I cannot find any factual basis for the conclusion that the municipality and or the second respondent did anything that frustrated the applicant in seeking urgent relief to arrest the construction taking place on erf 95.
[56] An inference of unreasonable delay may be drawn from a failure to take appropriate steps to seek urgent relief to maintain the status quo when that is not only possible but also the most effective remedy. It is a common practice in this Court for a party who feels aggrieved by administrative decision-making and desires immediate relief to protect its 'immediate interest' (safcor infra) while intending to have such decisionmaking reviewed and set aside - to seek an urgent interdict pendent lite.13 In the present case, the moment that happened, the applicant would have been provided with the record of the proceedings from which the additional grounds on which she relies would have been obvious. On the facts before me, review relief, coupled with a declaratory relief (which is a discretionary remedy14) are meaningless unless the ultimate objective is the demolition of the physical structure which the applicant maintains was built in breach of the municipality's TPS. The applicant's failure to seek urgent interdictory relief has created a certain reality: the buildings have been completed.
[57] No doubt if what I am here concerned with merely related to whether or not demolition relief should be granted, the fact that the second respondent was warned that he carried on further construction work at own risk was going to be a very important consideration - perhaps decisive. The issue is however broader than demolition relief and extends to whether or not the building plan approval by the municipality should be reviewed and set aside. That issue ineluctably involves consideration of whether there was reasonable delay in bringing the review application. Considering that the applicant was alive to the need for urgent interdictory relief against the second respondent and further urgent relief for a mandamus against the first respondent to enforce the TPS, her failure to say even as much as a word in the founding papers why such action was not pursued to protect her 'immediate interests' when it became quite apparent on 30 June 2008 (in the case of the first respondent) and 14 July (in the case of the second respondent) that the construction work would not cease, is a factor that counts against the applicant in light of the allegations of unreasonable delay.
[58] In dealing with the applicant's assertion that she had first to consult with lawyers as the matter was complex, Mr Cohrsen for the first respondent argues that the municipality's letter of 30 June 2008 told the applicant all she needed to go to Court. He further submitted that there is no explanation whatsoever by the applicant of the steps she took since the attitude of the municipality and second respondents became clear and why it took her 4 months to bring the review application since she became aware ofthe construction on erf 95. I must agree. The application lodged in October 2008 is essentialy, excepting the grounds based on the coverage restrictions, setback provisions and plurality of storeys, a restatement of the issues raised by the applicant in her letters to the municipality and second respondent of 17 June 2008 and 7 July 2008, respectively. That being the case, she has failed to demonstrate that it was reasonable and necessary on her part not to seek urgent relief when that was possible and was in fact contemplated by her and, in the circumstances, constituted the most effective remedy to protect her 'immediate interests'. She has also failed to demonstrate the specific steps she had to take between 30 June 2008 - when she received the municipality's unequivocal reply - and the date she launched the application. In addition, she failed to demonstrate that those steps were reasonable and necessary in the circumstances, if one has regard to the fact that it is based, substantially, on the same grounds set out in her letter of 16 June 2008.
[59] As I earlier stated, when unreasonable delay becomes an issue in a review application, the applicant must show that the steps taken in furtherance of the litigation which delayed the bringing of the application were reasonable and necessary. I am satisfied that as at 30 June 2008 the applicant had all the information she needed to seek urgent relief in the terms threatened in her letter of 16 June 2008 or to file a review application at once, subject to her right to amplify in terms of Rule 53(4) and in any event in that way have required the first respondent to produce the record that would have disclosed the basis for the 18 March 2008 approval of the construction on erf 95. Similar considerations applied in the Kruger case supra, at 176E-G:
'From the time he received his final opinion it still took him nearly four months before bringing his application. There is nothing on record to suggest he was still labouring under financial constraints. Here it must be borne in mind that, in essence, appellant's final case was a repeat of what his attorney already mentioned in his correspondence at the end of 1992. Furthermore, any relevant documents could be obtained by launching of the review in which case the provisions of Rule 53 of the High Court Rules would have compelled first respondent to furnish the records of proceedings and the same rule would have allowed appellant to amend his grounds of review, would he have so wished, after receipt of the said copies'.
[60] I have next to consider if I should grant condonation: The critical factor that militates against the granting of condonation is the efficacy at this stage of the declarator and the review relief, considering that the second dwelling complained about had already been completed because no urgent relief was sought suspending it; and the applicant's concession that the demolition relief not be granted subject to the court referring the matter back for 'regularization' - the exact scope of which is not defined. Granting a declarator and review relief has become of mere academic interest15 at this stage in the way the litigation has evolved: Just how regularization would take place in respect of a completed building - giving full effect to the applicant's right of objection - is a mystery.
[61] The applicant concedes16 that demolition is a discretionary remedy and in fact asks that the Court refer the matter back to the first respondent for 'regularization' subject to the applicant's right to object. Had urgent interdictory relief been sought and obtained at the time that the buildings on erf 95 were in the beginning stage, demolition would at this stage have been a very viable remedy. Should the first respondent's 'regularization' (after referral) not be to the applicant's satisfaction, what happens? The position we are at now - created by the applicant's inaction at the appropriate moment - therefore creates an unacceptable measure of uncertainty and does violence to the need for finality of the municipality's decision- making - and therein lies the rationale against granting condonation for the unreasonable delay.
[62] I do not think it is feasible that the council will approach the matter afresh in an unbiased manner as one would expect if there was no completed building in respect of which it labors under the apprehension of a litigious risk if demolition occurs. In oral argument, Mr Rosenberg devoted considerable amount of time making the point that the demolition relief was directed at the second respondent - and ought to have been treated as a separate issue from the issue of the review relief which properly affected the first respondent - but that the municipality's unreasonably persisted that the two be treated together. He maintained that had the municipality steered clear of the demolition issue that would have enabled it to reconsider the building plan approval afresh if referred back, without being accused of bias.
[63] In the way the matter has now crystallized, Mr Rosenberg expects of the Court to order the very thing that opens the municipality to the allegation that, because of its predisposition clearly expressed in the papers, it failed to exercise its powers properly. On 12 October 2009 Mr Rosenberg had argued, in an attempt to make the case for the separation of the review issue from demolition that this case is really about the review relief. What he of course did not mention - but is obvious from the way in which theapplicant has litigated - is that in view of the reality on the ground, the demolition relief has since become academic.
[64] Although the applicant now agrees to the matter being referred back for reconsideration of the building plan approval, it is not lost on me that in the replying papers the applicant states the following:
'Mr Louw accepts the contravention of the three meter building setback provision pointed out by me in my founding papers. The effect thereof is that the plans were unlawful and should not have been approved. It is no answer for Mr Louw to assert that the Second respondent has now been instructed to demolish the encroachment or to submit revised plans.' (My emphasis)
[65] One would have thought referral back to the first respondent involves precisely that. Although the argument can be made that this allegation was made before the acceptance that the matter be referred back to the municipality's for reconsideration, it raises the real likelihood that serious disputes are imminent over just what would be the process involved in the reconsideration and how they are to be resolved should they arise.
[66] Accordingly, in the exercise of my discretion I refuse to condone the unreasonable delay in the launching of the application for the review and setting aside of the decision taken by the municipality's on 18 March 2008 to grant building plan approval for the erection of two dwelling houses on erf 95.
[67] At the first opportunity that Mr. Rosenberg met me in Chambers to introduce himself, I cautioned him that there is a Practice Directive in this jurisdiction17 which requires that every effort must be made to research and refer the Court to applicable Namibian authorities. Regrettably, that warning was not heeded. As this judgment shows, on the important issue on which this application falls to be decided, there are important Namibian decisions - including that of the Supreme Court - to which no reference at all is made in the applicant's Heads of Argument. That calls for censure: foreign counsel who appear in the High Court must take note that the Practice Directives of this Court are just as applicable to them as they are to local counsel.
COSTS
[68] As regards costs, two issues arise: the first is the wasted costs occasioned by the postponement on 12 October 2009, and, secondly, the costs following upon the dismissal of the application for review.
[69] On 12 October 2009, by agreement between the parties, I made an order in the following terms:
1. The fourth respondent is joined as a party in the proceedings.
2. The matter is postponed to 6, 7 and 8 April 2010 for argument.
3. Wasted costs of both the main application and the joinder application to stand over for later determination.
4. The applicant to file a further affidavit within 10 days from today dealing with the introduction of the fourth respondent; the respondents to file further affidavits within 20 days of such further affidavit; the applicant to file replying affidavit to any such further answering affidavits within 10 days of them being filed.
5. That the matter is postponed to 6, 7 and 8 April 2010 for argument.'
[70] Before that, a rather lively debate had taken place whether or not there should be separation of issues so that only the review relief was considered and that argument on the demolition relief stands over for later determination. The applicant proposed that the review relief be heard on 12th of October 2009. The joinder of the fourth respondent was also an issue on that date. Such joinder was opposed by the first respondent although the applicant, the second and fourth respondent, agreed to joinder being effected on the basis that the demolition relief not be moved on 12th October 2009 and that second and fourth respondent would abide the review. Mr Rosenberg pointed out that if the review failed the declaratory relief would fall away. He stressed that the case was really all about the review relief. Mr Cohrsen for the first respondent opposed the separation of issues as no substantive application therefor was filed in terms of Rule 33(4) and that the separation issue was improperly being rolled together with the joinder of the fourth respondent; and that the first respondent had only one day's notice of the intended separation and joinder. The first respondent also vehemently denies that the demolition order did not concern it and maintains that its prejudice lies in the fact that if demolition were granted it ran a litigious risk by the second respondent.
[71] It is clearly established in the first respondent's papers in opposition to the application for the joinder of the fourth respondent that the applicant was informed on 22 September 2009 by the municipality that on 14 July 2009, erf 95 was registered in the name of BV Investments 605 CC, the fourth respondent. The first respondent then asked to be informed if the applicant intended joining the fourth respondent. This notwithstanding, no action was taken by the applicant to join the fourth respondent. The second respondent in his answering affidavit filed on 18 March 2009 had already stated that 'one unit was sold to a willing buyer'. Again, this did not spur the applicant into action and I find that surprising considering that at the end of the day what she has in mind is demolition of the allegedly offending structure which is not possible unless those affected thereby are joined.
[72] In a letter dated 8 October 2009 - 3 days before the date the matter was set down for hearing - the applicant caused to be recorded that 'a careful perusal of Deed of Transfer T3724 of 14 July 2009 will reveal that erf 95 is owned in undivided half shares by the second respondent and BV Investments 605 CC'. Although that was not disclosed by the second respondent to either the applicant or the first respondent, it became very clear on 18 March 2009 that there was another party directly affected by a decision the Court might make. As the first respondent complains, the joinder application was brought by the applicant on only one clear day's notice before the date the matter was set down for hearing. As concerns the joinder of the fourth respondent, the first respondent although not questioning the bona fides of the purchase of erf 95 by the fourth respondent questions, correctly in my view, why the fourth respondent did not apply to intervene when it was clear that the applicant had not joined it. Based on the above, the first respondent seeks a cost order against the applicant, second and fourth respondents for its wasted costs occasioned by the postponement on 12 October
2009.
[73] I am satisfied that the actions and omissions of the applicant and second and fourth respondents described above justify the costs order sought by the first respondent. As for the dismissal of the application there is no circumstance disclosed by the facts of the case why costs must not follow the event. The first, second and fourth respondent have successfully resisted the application and they are entitled to their costs.
[74] Accordingly, I make the following order:
(i) The application is dismissed.
(ii) The applicant, on the one hand, and the second and fourth respondents on the other, jointly and severally - the one paying the other to be absolved - are liable for the wasted costs of 12 October 2009 in favour of the first respondent, including the costs of one instructing and two instructed counsel;
(iii) In respect of the review application, the applicant is liable for the costs of the first, second and fourth respondents, including the costs of one instructing counsel and one instructed counsel in respect of the second and fourth respondents and in respect of the first respondent, the costs of one instructing counsel and two instructed counsel.
DAMASEB, JP
Appearance for the parties
COUNSEL ON BEHALF OF THE APPLICANT: Mr. SP Rosenberg SC,
Instructed by: KINGHORN ATTORNEYS
Correspondents: KIRSTEN & Co Inc, Windhoek
COUNSEL ON BEHALF OF THE FIRST RESPONDENT: Mr. RD Cohrssen, assisted
by D Obbes
Instructed by: METCALFE LEGAL PRACTITIONERS
Correspondents: DU PISANI LEGAL PRACTITIONERS,
Windhoek
ON BEHALF OF THE SECOND RESPONDENT
AND FOURTH RESPONDENT: Mr. C. MOSTERT
STEPHEN KENNY LEGAL PRACTIONERS
1Section 3 has been amended by s 3 of the Local Authorities Amendment Act, No 24 of 2000
2Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634.
3National Director of Public Prosecutions v Zuma 2009 (2) SA 277, para 26.
4See Bahlsen v Nederloff and Another 2006 (2) NR 416 at 424E-G para 31.
5Bahlsen supra at 424 C-D para 30.
6See also Patz v Green 1907 TS 427.
7Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A); Prospect Investment Co Ltd v Chairman Community Development Board and Another 1981 (3) SA 500 (T).
8 Compare Henri Villon (Pty) Ltd vAwerbuck Bros 1953 (2) SA 151 (O) at 168-70.
9 As opposed to executive, i.e. enforcement, functions.
10 Case No. A 29/2007 (NmHC) (unreported) delivered on 20.02.2009 at 9-11, paras 16-19.
11 Yuen v Minister of Home Affairs 1998 (1) SA 958 (C) at 968J-969A; Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41E-F and Gqwetha v Transkei Development Corporation Ltd 2006 (2) SA 603 (SCA) para 22.
12'Where a respondent in review proceedings is given notice that a decision is about to be taken on review such respondent knows it is at risk and can arrange its affairs so as to be the least detrimental' : Kruger v Transnamib Ltd (Air Namibia) and others 1996 NR 168 at 170H et 172A.
13Compare, Rossing Uranium Ltd v Cloete and another 1992 NR 98 at 100E-G.See also Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) 654 at 674H, and at 675C-D where Corbet JA recognised that : 'The decisions of public bodies or officialdom sometimes bear hard on the individual. The impact thereof may be sudden and devastating. Therefore ...applications for the review of such decisions may require urgent handling and, in proper circumstances, the grant of interim relief.'
14 Mushwena v Government of the Republic of Namibia (2) 2004 NR 94 at 102 para 20; Safari Reservations (Pty) Ltd vZululand Safaris (Pty) Ltd [1966] 3 ALL SA 546 (D), 1966 (4) SA 165 (D).
15Mushwena , supra, para 22.
16See para 63 of the applicant's written heads of argument.
17Part VIII, para 37 of the Consolidated Practice Directives issued on 2 March 2009.