Court name
High Court
Case number
332 of 2011
Title

DFE Properties Number One (Pty) Ltd v DFE Properties Number Two CC and Others (332 of 2011) [2012] NAHC 277 (25 October 2012);

Media neutral citation
[2012] NAHC 277
Coram
Parker AJ













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 332/2011








In the matter between:








DFE PROPERTIES NUMBER
ONE (PTY) LTD ...........................................APPLICANT



and



DFE PROPERTIES NUMBER
TWO CC ......................................FIRST
RESPONDENT



MING TONG CONSTRUCTION
CC ........................................SECOND
RESPONDENT



COUNCIL FOR THE
MUNICIPALITY OF WINDHOEK ...............THIRD
RESPONDENT













Neutral citation:
DFE Properties Number One (Pty) Ltd v DFE Properties Number Two CC
(A 332/2011) [2012] NAHCMD 36 (25 October 2012)








Coram: PARKER AJ



Heard: 9
October 2012



Delivered: 25
October 2012








Flynote: Interdict
– Final interdict – Applicant failing to establish it has
clear right – Court refusing to grant the relief of final
interdict.








Flynote:
Administrative Law – Action by administrative body within
the meaning of Article 18 of the Namibian Constitution – Third
Respondent alone as administrative body has the power to administer
the third respondent’s Town Planning Scheme and Building
Regulations – Any such action taken to implement the Scheme or
the Regulations remains valid until set aside by the court.








Summary: Interdict
– Final interdict – Restraining continuation of
construction of building – Applicant seeks court’s
protection of its right to a view – Applicant failing to
establish legal basis of such obscure right – Similarly,
applicant failing, to establish he has a right to challenge action by
the first respondent – Court finding that the first respondent
has no power to take any action under the Scheme or the Regulations
and so there is no action of it to challenge – Court concluding
applicant has failed to establish he has a clear right –
Consequently, court refusing to grant relief of interdict.








Summary:
Administrative law – Windhoek Municipal Council (third
respondent) – Administrative body in terms of Article 18 of
Namibian Constitution – Council’s Town Planning Scheme
and Building Regulations – Scheme and Regulations administered
by the Council only – Council approved first respondent’s
building plans – Building constructed in lawful accordance with
such approved plans – Decision of the Council to approve the
building plans in implementation of the Scheme and Regulations valid
until set aside by the court – Court not entitled to grant
relief for demolition of the building that is constructed according
to the Council’s approved building plans when the Council’s
decision has not been set aside by the court – It would not
only be wrong in law but would also go against the tenets of fairness
and equity if the court granted the relief to demolish the building
or a part thereof.










ORDER










The application is
dismissed with costs; and as respects the first respondent costs
include costs of one instructing counsel and one instructed counsel,
and as respects the third respondent, costs include costs of one
instructing counsel and one instructed counsel, but in respect of the
issue of costs only.










JUDGMENT










PARKER AJ:








[1] This application brought on notice
of motion revolves around a residential dwelling (‘the
building’) that has been constructed on property Erf 3738, Joey
Street, Ludwigsdorf, Klein Windhoek in the municipality of Windhoek
(‘the property’). Separate relief, that is, (a) an order
that the first and second respondents demolish ‘the third
floor, including the roof’ of the building, (b) an interdict
and (c) costs order, is sought against the first and second
respondents. As against the third respondent; the applicant seeks
only a costs order, that is, against the third respondent ‘jointly
and severally with the first and second respondents’.








[2] The first and third respondents
have moved to reject the application; the first respondent, the
entire application, and the third respondent, only the issue of
costs. The second respondent has not opposed the application. It is
my view, therefore, that since the second respondent has been given
an opportunity to be heard but has declined to file papers, the
second respondent shall be bound by any decision of this court.








[3] The applicant initially objected
to the third respondent’s late filing of its answering papers,
but in the course of the hearing of the application it became
apparent that the applicant does not oppose the application for
condonation. The applicant raised a point in limine, too, but
the applicant is not pursuing it. The first respondent raised a
number of points in limine but they appear to be intertwined
with the merits. I shall, therefore, proceed to consider the
application on the merits. Mr Tötemeyer SC (assisted by Mr Van
Vuuren) for the applicant, Mr Coleman for the first respondent, and
Mr Narib for the third respondent have filed heads of argument.








[4] As I pore over the
papers filed of record, I have no doubt in my mind that the pith and
marrow of the applicant’s case is primarily this. The first
respondent constructed the building without the approval of the third
respondent; and, therefore, the applicant, a neighbour of the owner
of the building, has the ‘right to approach the court to have
the building declared illegal and to ask the court to grant an order
for the demolition’ of the offending part of the building. The
essence of the first respondent’s case in the opposite
direction is this. The first respondent constructed the building in
lawful accordance with the building plans approved by the third
respondent and the building and building permit issued by the third
respondent; and so, therefore, ‘the first respondent did
nothing wrong’. As I have said previously only a costs order is
sought against the third respondent, and so the third respondent
moved to reject only that part of the application.








[5] On the materials
before me, I reject the applicant’s averment that its right to
a view – a ‘panoramic virtually 360 degree view’ –
has been violated by the owner for constructing the building. I do so
on the basis that it was not established by the applicant if such a
right is judicially protectable. In other words, the applicant does
not tell the court the legal basis of such right; and more important,
if it is judicially protectable. I have given considerable thought to
the opposing contentions by the applicant and the first respondent
(the main protagonists in the legal dispute in this proceeding).








[6] I now proceed to
consider the issue whether or not the first respondent obtained the
requisite approval and permit from the third respondent to entitle it
to construct the building; that is to say, whether the third
respondent approved the building plans and issued a permit for the
construction of the building in order to determine whether the
applicant has established its right to challenge the respondents on
the basis that the building is illegal.








[7] Relying on AJ van der
Walt, The Law of Neighbours 1st ed pp 341-344, Mr
Tötemeyer SC, counsel for the applicant, submits that
‘[n]eighbours have the necessary right to approach the court to
have a building or building works declared illegal and seek an order
for’ the building or a part of it to be demolished. I
respectively accept the general principle. But this general principle
must in Namibia be tested in the laboratory of Namibia’s
statute law and constitutional scheme on administration of local
government before the principle can be adjudged to have application
in Namibia – as far as this proceeding is concerned. In this
regard, the critical point must be signalized that the administration
of the Windhoek Town Planning Scheme (‘the Scheme’) and
the Municipality of Windhoek Building Regulations (Government Notice
No. 59 of 1969, dated 28 April 1969) (‘the Regulations’)
is the sole and exclusive responsibility of the Council: no other
person or body of persons, including the applicant and all other
neighbours of the owner of a building, and, indeed, the court have
the power to administer or implement the Scheme and the Regulations.








[8] In this regard, the
evidence that I accept is that through the internal arrangements of
the third respondent the building plans for the construction of the
building was approved by the third respondent; and what is more, that
the building does not offend the building plans that were approved.
And it has not been established by the applicant that they do. If it
is the contention of the applicant that there was no basis upon which
the third respondent could have approved the plans in terms of the
Scheme or the Regulations, or that the approval was ultra vires the
Scheme or the Regulations, that should not be the burden or concern
of the first respondent (or the second respondent) who, as I have
said previously are not responsible for administering the Scheme and
the Regulations. In this regard, reg 3 of the Regulations cannot
assist the applicant. The approval remains valid until set aside, as
I have reasoned below.








[9] The purposive
interpretation of the first part of reg 3 (on ‘safe’) is,
therefore, that the owner of a building is responsible for ensuring
that his building is ‘safe’. In this regard it must be
remembered that the word ‘building’ is a noun and it is
qualified by the adjective ‘such’. Thus, suppose, for
example, there is a building on a street in Windhoek. X is walking by
that building and the eastern wall falls on X, or Y is attending a
party on the top floor of that building and the top floor caves in. X
is injured by the falling wall, and Y by the caving in of the top
floor. The owner of the building cannot be heard to say that he is
not liable to X and Y on the basis that the building plans of his
building were approved by the Council, or while the building was
being constructed or the completed building were inspected by the
third respondent. And the phrase ‘these regulations and all
other laws applicable’ refer to any provisions of the
Regulations and provisions of a law that govern buildings in the
Windhoek Municipality area or, indeed, the country. For instance, it
is illegal for the owner of a building in Windhoek to use it in a
manner contrary to any provision of the Scheme (See s. 48(2)(d)
of the Scheme.) It is also illegal for the owner of the building to
use it as a brothel; and if the owner is charged with an offence for
contravening s 2(2)(e) of the Combating of Immoral Practices
Act 21 of 1980, the fact that the building plans of his building were
approved by the Council or the building while under construction and
the completed building were inspected by the Council is not a
defence. I find these parts of reg 3 to be pleonastic; but, probably,
they are put there ex cautela abuntandi. After the Council has
approved the building plans for the construction of a building and
the building is completed it would be unreasonable and unfair –
in my opinion – for the Council to be held responsible for
anything respecting the building, which is not its property.








[10] Thus, any
interpretation of regulation 3 (as that which Mr Tötemeyer
appears to put forth) that suggests that after X’s building
plans have been approved by the third respondent and the building has
been constructed in lawful accordance with such building plans X is
liable to his neighbour, if the neighbour is not happy with the
building because the neighbour (like the applicant) contends that he
has ‘a right to a view’ and that ‘right’ has
been violated by the owner of the building cannot be applied: it is
not the proper construction of reg 3. Such interpretation will surely
lead to unjust and unfair result; and such unjust and absurd result
could not have been intended by the makers of the Scheme and the
Regulations. (See Jacob Alexander v The Minister of Justice and
Others
Case No. A 210/2007 (unreported), and the authorities
gathered there.) In any case, I have found previously that the right
which the applicant approaches the court to protect is unclear as the
court has not been told as to the legal basis of such obscure right.
In this connexion, it must be remembered that the first respondent
(and second respondent) are not administrative bodies, and so they
are not subject to Article 18 of the Namibia Constitution. The third
respondent is; but the applicant does not seek against the third
respondent the relief of administrative justice in terms of Article
18, read with Article 25(2), of the Namibian Constitution.








[11] It is Mr Tötemeyer’s
further argument that the Scheme was enacted for the interest of a
particular class of persons, and the applicant falls within that
class and so the applicant has ‘standing to challenge actions
taken in violation of the Scheme’. In support of his argument,
Mr Tötemeyer referred a bevy of authorities to the court. With
utmost deference to Mr Tötemeyer, I have to say that counsel
misses the point. The first respondent does not administer the Scheme
and the Regulations, as I have stated previously. It is the third
respondent which has the power to take any action under the Scheme
and the Regulations in the implementation of those instruments, and
it did take action under the Scheme and the Regulations by approving
the first respondent’s building plans and issuing the building
permit, which decisions were in implementation – that is,
administration – of the Scheme and the Regulations – as I
say. By constructing the building the first respondent merely took
advantage of, and derived a benefit from, the decision of the third
respondent which it was entitled to do. If that decision of the third
respondent has not been set aside, how can it be seriously argued
that the first respondent has violated the Scheme and the
Regulations, particularly where it has been established that the
building does not offend the building plans as approved by the
Council? Thus, I accept the evidence that as far as the third
respondent is concerned, the building as it stands is in compliance
with the building plans that were approved and the building permit
that was issued. On a proper construction of the relevant provisions
of the Scheme and the Regulations the legality of the erection of the
building was not dependent on the legal validity of the third
respondent’s approval of the building plans and the issuance of
the permit but merely on the fact that approval was given and the
permit issued (See eg Oudekrall Estates (Pty) Ltd v City of Cape
Town and Others
2004 (6) SA 222 (SCA).) The makers of the
Regulations and the Scheme could not have expected the first
respondent to first satisfy itself that the third respondent’s
approval and permit were valid before it commenced, and continued, to
erect the building. Furthermore, the makers of the Regulations and
the Scheme could not have expected the first respondent to enquire
into the validity of the third respondent’s approval and permit
before it relied on the approval and the permit. In my view,
therefore, the first respondent is entitled to erect its building –
as it did and continues to do – merely upon the fact of the
third respondent’s approval and permit. The first respondent’s
act in erecting the building is accordingly lawful. Thus, so long as
the approval and the permit exist in fact the first respondent is
entitled to erect, and carry on with the erection of, the building;
provided, of course, that the erection of the building was in
accordance with the approval and the permit. I am satisfied that the
first respondent has established that the building is in accordance
with the building plans as approved and the building permit that was
issued, as I have said previously.








[12] For these reasons, I
conclude that the applicant has not established a clear right; and so
I find that a crucial requirement for the grant of a final interdict
has not been proved. I accept Mr Coleman’s submission on this
point. It follows that the applicant’s prayer for interdictory
relief fails.








[13] For what I have said
previously, I find that in the granting of the aforementioned
approval of the building plans of the building the third respondent,
which is an administrative body, took a decision within the meaning
of Article 18 of the Namibian Constitution. The applicant does not,
as I have mentioned previously, seek redress in terms of Article
25(2), read with Article 18 of the Namibian Constitution.
Consequently, it cannot be disputed that that decision continues to
have effect until it is set aside, as Mr Coleman submitted. I should
have said so even if I had not looked at the various decided cases;
but when I look at Oukekraal Estates (Pty) Ltd v City of Cape Town
and Smith v East Elloe Rural District Council [1956] AC 36
(HL), for example, I feel no doubt – none at all – that
the decision of the third respondent is valid and, therefore, it
cannot be ignored by this court: this court must respect the
decision. Thus, where the owner of a building has constructed the
building in the Windhoek Municipality area (to bring the enquiry
nearer home) in legal accordance with building plans approved by the
third respondent and a building permit issued by it, it would not
only be wrong in law but it would also go against the tenets of
fairness and equity to order such building or a part thereof to be
demolished. Accordingly, I refuse to make an order to demolish the
third floor (including the roof) of the building.








[14] In virtue of the
view I have taken of this application as indicated in the aforegoing
reasoning and conclusions, I think it serves no real purpose to
consider the first respondent’s first point in limine.
The second and third points in limine are tied up with the
merits – in my opinion – and I have deal with them
previously.








[15] As to the issue of
costs; in my judgement costs should follow the event. This disposes
of the issue of costs as it affects the third respondent, too.








[16] For all the
aforegoing reasons, the application is dismissed with costs; and as
respects the first respondent costs include costs of one instructing
counsel and one instructed counsel, and as respects the third
respondent, costs include costs of one instructing counsel and one
instructed counsel, but in respect of the issue of costs only.























----------------------------



C Parker



Acting Judge













APPEARANCES








APPLICANT: R Tötemeyer
SC (with him A Van Vuuren)



Instructed by Fisher,
Quarmby & Pfeifer, Windhoek













FIRST RESPONDENT: G
Coleman



Instructed by AngulaColeman, Windhoek













THIRD RESPONDENT: G Narib



Instructed by Hengari, Kangueehi &
Kavendjii Inc, Windhoek