Court name
High Court
Case number
138 of 2011

Roland and Others v Chairperson of the Council of Municipality Windhoek and Others (138 of 2011) [2012] NAHC 216 (31 July 2012);

Media neutral citation
[2012] NAHC 216
Miller AJ

CASE NO.: A 138/2011



In the matter between:














Heard on: 14 March 2012

Delivered on: 31 July 2012


MILLER, AJ.: [1] In this
matter the applicants seek the following relief set out in the
Amended Notice of Motion.

  1. Calling
    upon the second respondent (“the Council” – in
    terms of the Rule 53 - to show cause why –

    1. The
      purported decision(s) taken during 2010, alternatively 2011 (the
      precise date(s) being unknown to the applicants and such
      decision(s) only coming to the applicants’ knowledge on 27
      May 2012) by officials of the second respondent, alternatively the
      second respondent itself, to approve the third respondent’s
      building plans in respect of Erf 2021, Ludwigsdorf, Klein Windhoek
      and/or in relation thereto to relax certain restrictive conditions
      of the Windhoek Town Planning Scheme, as amended, and approved by
      the fourth respondent in terms of section 26 (1) and 26 (2) read
      with section 27 (1) of the Town Planning Ordinance, No. 18 of 1954,
      should not be declared to be:

      1. in
        conflict with the Constitution;

      2. ultra

accordingly null and void.

    1. Alternatively,
      that the decision(s) should not be reviewed and set aside in terms
      of Rule 53 (1)(b).

  1. Ordering
    the second and third respondents to pay the costs of this

  2. Ordering
    costs against such other respondents (jointly and severally with the
    second and third respondents, the one paying the other to be
    absolved, only in the event of any of them opposing this

  3. Granting
    further and/or alternative relief to the applicants.”

[2] I had, on a previous occasion granted
the applicants certain interim relief pending the finalization of the
claim for final relief, in the following terms:

  1. That
    non-compliance with the Rules of this Honourable Court is condoned,
    and the application be heard on an urgent basis as envisaged by Rule
    6(12) of the aforesaid Rules.

  2. That
    an order is granted:

    1. Interdicting
      and restraining the third respondent from proceeding with any
      further building work or construction above level “A”,
      as reflected on the third respondent’s building plan
      (annexure “TM 1” hereto) on the third respondent’s
      property situated at Erf 2021, Ludwigsdorf, Klein Windhoek, pending
      the final determination of:

      1. The
        review proceedings, set out in Part A of the notice of motion in
        this application;

      2. An
        application to be brought for the demolition of any construction
        on the third respondent’s property aforesaid which
        contravenes the provisions of the Windhoek Town Planning Scheme,
        such application to be launched within 15 (fifteen) days from
        final judgment in the review proceedings.

  3. That
    the costs of this application to stand over for determination in the
    main application.”

[3] Factual Background

The third respondent is the owner of Erf
2021, situated in Ludwigsdorf, Windhoek. Since it is situated within
the municipal boundaries of the City of Windhoek it is subject to
inter alia the applicable Town Planning Scheme and Building
Regulations, the relevant portions of which I shall refer to at an
appropriate stage.

[4] The erf is in a sense somewhat
insular inasmuch as it is bordered on three sides by public streets,
being Anna Street, Dorothy Street and Cathy Street. A further
distinguishing feature is that the land slopes downward from Dorothy
Street in an easterly direction.

[5] There is a fall of about 9 metres
from Dorothy Street where the erf is at its highest to the eastern
border of the erf, where there is a small river and the erf is at its

[6] Cathy Street and Anna Street run
along the slope on the southern and northern boundaries of Erf 2021.
As I had indicated the erf is bordered on the western side by Dorothy

[7] The third respondent, during the year
2010 submitted building plans to the first and second respondents for
the approval of a residential building which he intended to erect on
Erf 2021. These were approved by the first and second respondents on
12 April 2010. The plans approved provide for a residential building
to be constructed on three levels. Provisions was also made for a
landing of the staircase leading to the third level and on the top of
the third level. It is the approval of the building plans submitted
which is attacked by the applicants in the Notice of Motion.

[8] In order to create a level surface
upon which to construct the building the higher portions of the land
on the western side were excavated and the excavated soil was used to
fill up the lower portions on the eastern side whereupon the erection
of the building commenced.

[9] The building operations continued
apparently unabated until February 2011. It was then interrupted due
to a shortage of steel until the middle of May 2011.

[10] This application was launched when
the columns for the third level of the building were erected. The
interim relief I granted prevented the third respondent from
continuing with the further construction of the third level; leaving
the third respondent free to complete the construction of the
remaining two levels should he so wish.

[11] The remaining issue

When the applicants launched these
proceedings the decision to approve the plans was attacked on various
grounds. These included the relaxation of the building lines
determined by the Town Planning Scheme amongst others.

[12] During the course of the proceedings
the dispute became narrowed down to a single one, that being the
approval of the plans to construct a third level.

[13] Mr. Corbett, who appeared for the
applicants, at an early stage indicated, properly in my view that the
applicants do not intend to pursue the remaining grounds.

[14] The applicants base their attack on
the remaining ground on the provisions of section 21 (3) of the
Windhoek Town Planning Scheme which reads as follows:
dwelling unit or residential building may be erected in excess of two
storeys on land zoned “residential” without council
approval. Council shall, in considering the application, have regard
to the impact real or potential of the additional storeys on the
neighbouring property”.

[15] The applicants reside in or own
property which although not immediate and adjoining properties, are
neighbouring nonetheless in the sense that the properties are
separated from that of the third respondent by the public streets I
have mentioned. In common parlance they live across the road. It
follows in my view that they have locus standi. The respondent
did not seriously content this fact.

[16] It is common cause between the
parties that in considering the third respondent’s application
for the approval of his building plans, the first and second
respondents paid no regard to the provisions of section 29 (3) of the
Town Planning Scheme.

[17] That is so because the first and
second respondents reasoned that the building which the third
respondent intended to erect was not a building “ excess
of two storeys”. The applicants as I indicated contend that it
is. Instead the first and second respondents considered that the
building consisted of a basement and two storeys.

[18] The first and second respondents
draw their support for their understanding of the nature of the
building from the provisions of the Municipality of Windhoek Building
Regulations which were promulgated by Government Notice 57 of 1969
and published in Official Gazette No. 2992 dated 28 April 1969.

[19] Regulation 29B(1)(a) provides that:

  1. basement
    storey” or “cellar” shall mean any storey of a
    building which is under the ground storey.”

29B(1)(c) in turn provides that:

“a ground storey” shall mean that storey at a building to
which there is an entrance from outside on or near the level of the
ground, and where there are two storeys then the lower of the two:
Provided that no storey of which the upper surface of the floor is
more than four feet below the level of the adjoining pavement, shall
be deemed to be a ground storey.”

[20] To apply these definitions to the
building in question creates difficulty. If for instance one was to
take the pavement along Dorothy Street as a point of reference, the
lower level of construction is more than four feet below the level of
the pavement and thus in terms of the proviso in Regulation 29B(1)(c)
deemed not to be a ground storey.

[21] Conversely if one were to take the
pavement along Cathy Street from the point where it intersects with
Dorothy street and follow it in an easterly direction to the eastern
boundary of Erf 2021, the lower level will at some point become
higher than that adjoining pavement.

[22] As a consequence the results will be

[23] The approached adopted by the first
and second respondents to this problem appear from an affidavit by
Mr. Billawer, a town planning officer employed by the first and
second respondents in terms of reasons as follows:

Building Regulations further state that any floor that is four feet
under street level cannot be counted as a ground storey, thus the
City correctly approved the basement in this case as such. I submit
that the level of the ground referred to in the definition of the
word ground storey refers to unexcavated land. In any event, I submit
that the definition of a basement storey and a ground storey is only
confined to the scope of Regulation 29(B). This is so in that section
29(B) (1) of the Building Regulations expressly states that the
meanings attached to the defined words is confined to regulation
29(B) only and it does not apply generally to all the other
provisions of the regulation.”

[24] Mr. Ntshebeze SC who together with
Mr. Khama appeared for the first and second respondents used this as
a base from which to launch a two-pronged attack. Firstly it was
contented that I should in the circumstances show deference to the
decision taken as to whether the lowest level constituted a basement
as a ground storey. For this submission Mr. Ntshebeze relied upon the
decision in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs & another 2004 (4) SA 490 CC.
the context of that case it was held that the Court should be slow to
usurp the functions of administrative agencies.

[25] In that case the decision under
review dealt with the allocation of fishing quotas. It involved
matters of policy and technical expertise which the Court did not

[26] The matter before me falls into a
different category. It concerns only the application or otherwise of
the provisions of the Town Planning Scheme and the Building
Regulations to the building the third respondent intended to erect.
There is no need in such circumstances to display judicial deference
to the decision taken by the first and second respondent.

[27] Secondly reliance was placed on
Regulation 29B (6) of the Building Regulations which reads as

dispute in connection with the position of the ground level the
decision of the Council shall be conclusive.”

[28] I agree with Mr. Corbett that in
casu there is no dispute about the ground level. The dispute
concerns the status of the lowest level as either a basement or a
ground storey.

[29] Mr. Ntshebeze SC further submitted
in his Heads of Argument that since a portion of the lowest level is
more than four feet below the adjoining pavement, the deeming
provision in Regulation 29B (1)(c) applies with the result that the
lowest level is a basement.

[30] Mr. Corbett argued on this latter
point that in order to make sense of the definition of a “ground
floor” the Court should average out the different points where
there are three streets at different levels. If on average the major
portion is not more than four feet below the adjoining pavements the
result is that the level is a basement.

[31] The difficultly I have with these
submissions is that I am invited to read into the provision rather
extensive provisions which are not there. The result in either case
will be that I will in the result effect extensive amendments to the
regulation concerned. For good reason Courts are reluctant to embark
on such a course of action.

Venter v R 1907 TS 910.

S v Negongo 1992 NR 352.

[32] Having given the matter
consideration I take the view that as a starting point I should as
far as I am able to determine the intention of the legislature. As a
general proposition it appears to me that the legislature is
concerned that residential buildings in residential areas should be
not higher than two storeys because of the impact their height may
have on neighbouring properties. Hence they will only be permitted
once the Council has in each case considered what their impact in
that respect will be. That is what Section 21 of the Town Planning
Scheme contemplates.

[33] Secondly an unless it is provided
for otherwise, legislation is intended to apply universally to all
affected by it and not only to some. To literally apply the proviso
definition in this case would have the result that it is confined to
properties which are bordered by a single pavement bordering one
boundary of the property. I cannot accept that such a situation was

[34] It also raises the question as to
what a pavement in fact is. The question I have in mind is whether
the pavement adjoining Erf 2021 is in fact one pavement running along
the three streets bordering it or whether there are three pavements
each running along an individual street. I am inclined to the view
that the pavement adjoining Erf 2021 is a single pavement adjoining
it on three of its boundaries. I note from the proviso in Regulation
29B (1)(c) that the proviso does not refer to the pavement of a
street but speaks only of the pavement adjoining the property. The
logical conclusion must then inevitably be that the proviso will not
apply where any portion of the level is not more than four feet below
the level of the pavement.

[35] I consider that given the anomalies
created by a literal reading of the proviso and assuming that there
are in casu more than pavement adjoining the property, that
this is a proper case to read into the provisio the word “any”
in place of the word “the”, where it appears immediately
prior to the words “adjoining pavement”.

[36] In so doing I bear in mind the
approach in Venter and Negongo to which I mentioned
earlier. I consider this however to be one of the exceptional
circumstances where I may adopt this approach.

[37] Finally on this point, and assuming
that the proviso finds no application on the facts of this case, one
is then driven to apply Regulation 29B (1)(c) without reference to
the proviso. In that case on the facts and, absent the proviso, the
lowest level is a ground storey.

[38] I conclude in the result that the
lowest level of the building is a ground storey and not a basement.

[39] I need only deal with the point
taken in the Heads of Argument of the first and second respondents to
the effect that the applicant should have first exhausted their
alternative remedies. Section 51 of the Town Planning Scheme makes
provision for an appeal to the Minister of Regional and Local
Government and Housing against a decision taken by the Council. The
Section is not cast in peremptory terms and provide an additional or
alternative remedy to which an aggrieved person may or not avail
himself of.

[40] It follows therefore that the
decision taken by the first and second respondents fails to be
reviewed and set aside. Costs should follow the result.

[41] The applicants complain about the
fact that subsequent to the interim relief having been granted, the
first and second respondents took steps un anticipation of finding
that the building is one consisting of more than two storeys, to
regularize their position. I need only state that I do not deem it
necessary or appropriate to consider that at this stage.

[42] In the result I make the following

  1. The decision taken by the first and
    second respondents to approve the building plans submitted by the
    third respondent on the basis that the building was not one
    consisting of more than two storeys is reviewed and set aside.

  2. The first and second respondents are
    ordered jointly or severally to pay the applicants costs on the
    basis of one instructing and two instructed counsel.




INSTRUCTED BY: Fischer, Quarmby &

& 2NDRESPONDENTS: Mr. Ntsebeza
SC, assisted by Mr. Khama

Partners Legal Practitioners


INSTRUCTED BY: Nixon Marcus Public
Law Office