Court name
Supreme Court
Case name
Namundjebo-Tilahun NO and Another v Northgate Properties (Pty) Ltd and Others
Media neutral citation
[2013] NASC 12
Judge
Maritz JA































REPORTABLE


CASE
NO: SA 33/2011















IN THE SUPREME COURT
OF NAMIBIA







In the matter between:











MARTHA
NAMUNDJEBO-TILAHUN N.O.


HADDIS
TILAHUN




First Appellant


Second
Appellant




and











NORTHGATE
PROPERTIES (PTY) LTD



TOWN COUNCIL OF THE
MUNICIPALITY OF HELAO NAFIDI



REGISTRAR OF DEEDS


MINISTER
OF REGIONAL AND LOCALGOVERNMENT AND HOUSING AND RURAL DEVELOPMENT




First Respondent







Second Respondent



Third Respondent






Fourth
Respondent








Coram: MARITZ JA,
MAINGA JA and STRYDOM AJA



Heard: 15 November
2012



Delivered: 7
October 2013







APPEAL JUDGMENT



____________________________________________________________________



STRYDOM AJA (MARITZ JA
and MAINGA JAconcurring):




  1. The first respondent
    brought an application in the High Court of Namibia for a review in
    terms of rule 53, alternatively a declaratory order in which it
    claimed the following relief:








'1. Calling upon the respondents to
show cause why-







1.1. the decision of the first
respondent taken on or about 13 June 2007 to enter into an agreement
of sale with the second respondent for the purchase of immovable
property belonging to first respondent, such property being described
as:



Erf No. 13, Oshikango



In the town of HelaoNafidi



Registration Division “A”



Oshikango Region



(hereafter “the property”)



Should not be declared ultra vires
the powers of the first respondent andaccordingly null and void,
alternatively be reviewed and set aside in terms of Rule 53 (1)







1.2. declaring the agreement concluded
between the first and second respondents pursuant to the decision
aforesaid – annexure “HH13” to the founding
affidavit – in terms whereof the second respondent purchased
the property from the first respondent, to be null and void and of no
force and effect.







1.3. directing and ordering the third
respondent to cancel the entry in the Deeds Registry indicating that
the property belongs to the second respondent.







1.4. directing that the matter be
referred back to the first respondent and that the first respondent
consider applicant’s exercise of its right of pre-emption in
respect of the property.







2. Ordering the first and second
respondents, and any other respondents who may oppose this
application, to pay the costs of this application jointly and
severally, the one paying the others to be absolved.







3. Further and/or alternative relief.'








  1. At a later stage the
    first respondent amended its notice of motion by inserting, after
    para 1.4 of its original notice, and in the alternative to its
    original notice, the following paragraphs, namely:








'1. Declaring the agreement concluded
between the first and second respondents pursuant to the decision
aforesaid – annexure "HH13" to the finding
affidavit – in terms whereof the second respondent purchased
the property from the first respondent, to be null and void and of no
force and effect;







2. Directing and ordering the third
respondent to cancel the entry in the Deeds Registry indicating that
the property belongs to the second respondent;







3. Directing that the matter be
referred back to the first respondent and that the first respondent
consider applicant’s exercise of its right of pre-emption in
respect of the property.'








  1. The first respondent’s
    application was successful and the following order was granted by
    the Court:








1. That the
agreement of sale concluded between the first and second respondents
signed on 13 June 2007 in terms whereof Erf 13, Oshikango was sold to
the second respondent is declared null and void and of no force and
effect.







2. That the third respondent is
directed to cancel the entry in the Deeds Registry indicating that
the property belongs to the second respondent.







3. That the matter is referred back to
the first respondent to consider the applicant’s exercise of
its right of pre-emption in respect of the property.








4. That the conditional counter
application is dismissed.








  1. That the second and third respondents
    are ordered to pay the costs of the application and the conditional
    counter application, jointly and severally, the one paying the other
    to be absolved such costs to include the costs of one instructing
    and two instructed counsel.’









  1. The appellants lodged an
    appeal against the whole of the judgment and orders made by the
    Court a quo.









  1. In the Court a quo
    the second respondent in the appeal was the first respondent.
    The first appellant was styled as the second respondent with the
    Registrar of Deeds and the Minister of Regional and Local Government
    and Housing and Rural Development respectively as third and fourth
    respondents. The first respondent in the appeal was the applicant.
    Only the first and second appellants appealed the order of the Court
    a quo. The second appellant had been joined asa party during
    the proceedings. In order to avoid confusion I will refer to the
    respondents cited in the appeal as follows:








to the first respondent
as 'Northgate';



to the secondrespondent
as 'the Town Council';



to the third respondent
as 'the Registrar'; and



to the fourth respondent
as 'the Minister'.







Because the appellants
drew a distinction between Namundjebo Northgate Properties (Pty) Ltd
and Northgate Properties (Pty) Ltd I will, wherever I intend to refer
to the first named, refer to 'NamundjeboNorthgate Properties’







Background




  1. Northgate alleged that
    it was the holder of a Permission to Occupy (PTO) in regard to Erf
    13,Oshikango, situated within the Township of HelaoNafidi. A
    certificate, issued in the name of Namundjebo Northgate Properties
    (Pty) Ltd, was attached to its application. On 25 July 2008, through
    their legal practitioners, Northgate discovered that the property,
    known asErf 13, Oshikango, had been transferred to a trust known as
    the Namundjebo Family Trust(the Trust) and of which the appellants
    were the provisional trustees. Prior to the transfer, Mr Kutzner,
    the legal practitioner on behalf of Northgate, had informed the
    legal practitioners of the Trust of Northgate’s rights in
    regard to Erf 13 and had threatened to bring an urgent interdict to
    prohibit the transfer of the Erf in the name of the Trust. However,
    it did not make good its threat and Erf 13 was registered in the
    name of the Trust. Northgate then brought the present application in
    the High Court of Namibia









  1. Before independence, and
    until after independence the areas of Municipalities and Village
    Councils were delimitated and proclaimed and erven were measured and
    set out, no private persons or registered companies could own land
    in what is now known as communal areas such as the then Owambo.The
    concept of a PTO was established by legislative enactment. (See s 47
    of Regulation 188 of 1969.) It granted to the holder thereof certain
    rights in regard to the piece of land occupied, of which the most
    important was the right of pre-emption of the land whenever it was
    possible to own property in that area. The certainty that the holder
    of the PTO could, in time, become the owner of the property occupied
    by him or her, stimulated development of the areas held in terms of
    a PTO. Buildings were erected on the land so held, sometimes to the
    value of millions of dollars as is evidenced in this particular
    instance. A PTO was granted by the Permanent Secretary in the
    Ministry of Regional and Local Government and Housing and Rural
    Development and was not transferable without his permission. The
    granting of a PTO was also a matter of record and certificates were
    issued to the holders thereof setting out the terms under which it
    was held. One such condition was that the holder of the PTO could
    not transfer any of his rights to another entity or person without
    the written consent of the Permanent Secretary of the Ministry. In
    regard to the law applicable to PTO’s and the effect and
    status of a PTO there is no dispute between the parties.



  2. Mr Hamm, the deponent on
    behalf of Northgate, further explained that this particular PTO had
    been granted to Mr George Namundjebo, a brother of the first
    appellant, on 1stOctober 1996. Thereafter, the company
    Namundjebo Northgate Properties was established with a shareholding
    of 4000 shares of which only a 100 shares were issued. Of these, 10
    shares were held by MrNamundjebo and 90 shares by Namibia Breweries
    Ltd (NBL).MrNamundjebo thereafter applied for the transfer of the
    existing PTO, held by him in his personal capacity, to Namundjebo
    Northgate Properties. Permission was granted and the certificate,
    referred to herein before, was issued to reflect the name of the new
    holder of the PTO. The property was developed to the tune of N$7,5
    million with capital provided by NBL.









  1. It was further explained
    that Mr George Namundjebo had entered into various business ventures
    of his own without much success and soon found himself deep in debt.
    To assist him and to extricate him from his indebtedness NBL bought
    his shares in Namundjebo Northgate Properties and in Northgate
    Exports (Pty) Ltdfor an amount of N$1,1 million and further advanced
    to him a loan of N$58 151,13. This is all reflected in a written
    agreement entered into by the parties. NBL was now the only
    shareholder of Namundjebo Northgate Properties. On 28 May 2008,
    application was made to the Registrar of Companies to drop the word
    ‘Namundjebo’ from the company name. This was only a
    change of name and NBL remained the only shareholder in Northgate.










  1. After the Town Council
    of HelaoNafidihad beenestablished a MrShivolo, the CEO of the
    Municipality,addressed a letter to Namundjebo Northgate Properties
    as the PTO holder of Erf 13 'to offer you the first opportunity to
    purchase off such plot/erf'. The letter was dated 24/03/2005 and
    furthermore the PTO holder was given 21 days from the date of notice
    to indicate its willingness to purchase Erf 13. Namundjebo Northgate
    Properties did not respond to this invitation. On the 18th
    September 2006 a further letter was addressed, this time to NBL, to
    offer them the purchase of Erf 13, and it was given until the 30th
    October 2006 to make all the necessary arrangements to buy the erf.
    A third letter, dated 9th November 2006, was addressed by
    MrShivolo to NBL in which reference was made to a telephonic
    communication regarding the payment of the erf and MrShivolo
    undertook to take up the concern of NBL, regarding the payment of
    the erf, with the Town Council. Thereafter, and on 6th
    June 2007, an application to purchase the property was sent to the
    Town Council together with a request to inform Namundjebo Northgate
    Properties of the purchase price of the erf and an undertaking was
    given to transfer such amount to the bank account of the Town
    Council, seemingly once the purchase price had been determined.









  1. Further correspondence
    followed upon this request but no progress had been made to finalise
    the sale. From the correspondence it seemed that the legal
    practitioners ofNamundjebo Northgate Propertieswere of the opinion
    that there was some unnecessary stalling on the part of the CEO to
    finalise the purchase of Erf 13. MrShivolo then informed Namundjebo
    Northgate Properties that it had come to his knowledge that there
    was a dispute between the company and the Namundjebo family as to
    the status of the premises and advise Namundjebo Northgate
    Properties that the Municipality did not want to become entangled in
    such dispute and 'will wait for clarity before we can act promptly'.
    The existence of such a dispute was denied by Namundjebo Northgate
    Properties. Whilst the correspondence was still ongoing, and
    notwithstanding MrShivolo’s intimation that the Town Council
    did not want to become entangled in the dispute, he entered into a
    contract of sale with the first appellant, as nominee trustee for
    the Trust, whereby he sold Erf 13, Oshikango, to the Trust.









  1. The first appellant
    deposed to an affidavit on behalf of the Trust. She stated that for
    as long as she could remember, and prior to the proclamation of the
    township HelaoNafidi, the land surrounding the area known as
    Oshikango was allocated to the Namundjebo family in accordance with
    the customs and traditions applicable in that area. This included
    the disputed property, Erf No 13. When her father died her brothers
    George and Phillip(the latter also being a headman and steeped in
    the customary law of that area) had been appointed as joint
    executors of the estate. Her late father had various business
    interests and himself held various PTO’s in the communal areas
    in northern Namibia. The first appellant together with her brothers
    and mother were the beneficiaries of the Trust and she and the
    second appellant were the first trustees appointed. She stated that
    her brother George, as joint executor of the estate of her late
    father, attended to the interests of the estate in the Oshikango
    area, including Erf 13. It was in that capacity that a PTO was
    issued to him. However, it was incorrectly issued in his personal
    capacity and should have reflected that he was holding the PTO in
    his capacity as a joint executor of the estate.









  1. The first appellant
    described how Mr List of the Ohlthaver and List group of companies
    had become interested to establish a warehousing and trading
    facility for the distribution of the products of NBL to Angola. This
    led to the formation of Namundjebo Northgate Properties which was a
    defensive name registered by her brother George. She stated thatit
    was never the intention of her brother George or the Namundjebo
    family that the PTO should have been registered in the name of the
    company. According to her brother George, it was contemplated that
    NBL would provide capital for the purposes of laying a floor in the
    warehouse, which was already partly constructed, and which would
    have sufficient strength to accommodate forklifts and other heavy
    machinery. As a quid pro quo NBL would not pay rental to the
    estate, or later, to the Trust, until the capital costs invested by
    it had been applied and set off against such rental and use.










  1. First appellant went on
    to state that the registration of the PTO in the name of Namundjebo
    Northgate Properties had been a mistake and had never been intended
    by the joint executors or the family. Such registration had
    therefore been done in error by the Ministry at the time and those
    records needed to be rectified. To that extent the first appellant
    launched a conditional counter claim for the rectification of the
    Ministry's records.










  1. It was further explained
    that first appellant’s brother George started a supermarket on
    the premises of Erf 13 but, as a result of financial losses, a
    company of theOhlthaver and List group under the name of Safeway and
    Pick and Pay was subsequently established on the property.










  1. During 2005 Mr George
    Namundjebo received a copy of a letter addressed to Namundjebo
    Northgate Properties by the Town Council in which the Town Council
    had offered to sell the property, Erf 13. This letter was shown to
    the first appellant and she then approached MrShivolo, the former
    Town Clerk of HelaoNafidi. First appellant explained to him that the
    said property had previously been allocated to her family and that
    the Trust had succeeded the estate. In her capacity as nominee
    trustee of the Trust, the first appellant then applied to purchase
    the property. This happened on 6 June 2007. Subsequently an
    agreement of sale was concluded and thereafter the property was
    transferred by registration to the Trust.










  1. In regard to the
    shareholding of Mr George Namundjebo in the company Namundjebo
    Northgate Properties, the first appellant denied that that
    shareholding had anything to do with the PTO and she stated that it
    only related to his participation in the company conducting the
    warehousing and trading business on the premises. In regard to the
    sale and with reference to the affidavit of MrSheelongo, the acting
    CEO of HelaoNafidi, the first appellant submitted that the Town
    Council was capable of ratifying the sale and would be approached to
    do so in so far as it might be necessary. First appellant further
    denied that s 63(1) read with s 63(2) were applicable to the Town
    Council. She also denied that improvements to the sum of N$7,5
    million had been made on the property.










  1. In regard to the
    affidavit by MrSheelongo, the first appellant disputed his authority
    to make such affidavit. This was done on the strength of a
    communication by her brother, Philip Namundjebo, who was the
    Chairperson of the Management Committee of the Town Council, who
    stated that no such meeting had been held whereby MrSheelongo was
    authorised to make such affidavit.










  1. Although the Town
    Council did not oppose the application by Northgate,MrSheelongo, its
    acting Chief Executive Officer, filed an affidavit on the
    instructions of his Management Committee to set out the facts of
    which the Council had knowledge concerning the dispute and which
    facts may have been relevant to assist the Court.










  1. MrSheelongo pointed out
    that the property known as stand No 13 was formerly administered by
    the Ohangwena Regional Council. The HelaoNafidi Town Council was
    established on 1st September 2003 by publication by the
    Minister in Government Gazette No 3054 of 2003. Prior to its
    proclamation the said Regional Counsel had the power to allocate and
    distribute land on behalf of the State.










  1. According to the records
    a PTO in respect of the stand known as Erf 13, Oshikango, was
    granted to Mr George Namundjebo on 1 October 1996. However, on9
    October 1996, an application was made by MrNamundjebo for the
    transfer of the PTO to a company, Namundjebo Northgate Properties
    (Pty) Ltd. In both instances copies of the relevant documents,
    evidencing the granting of the PTO to MrNamundjebo and the later
    transfer thereof to Namundjebo Northgate Properties, were attached
    by MrSheelongo. This change of ownership of the PTO to Namundjebo
    Northgate Properties (Pty) Ltdwas duly granted by the Permanent
    Secretary and again the deponent attached the relevant documents in
    support of this allegation.










  1. Mr Sheelongo continued
    to state that a valid offer was extended to Namundjebo Northgate
    Properties on 24 March 2005 to buy the said stand but itdid not take
    up the offer and did not exercise its right of pre-emption of the
    stand.









  1. MrSheelongo then
    explained the procedure followed by the Municipality where a
    property was sold privately. A Land Allocation Committee was
    established by the Town Councilto consider applications for land.
    All land within the Town Council’s jurisdiction could only be
    sold or allocated through the Land Allocation Committee. This
    committee considers applications and, if satisfied that all the
    requirements of the Council had been met, it recommends the sale of
    land by public or private tender to the Town Council for approval.
    If the sale is by private tender, permission of the Minister to sell
    the land is obtainedafter the Council has resolved to sell the land.










  1. MrSheelongo further
    stated that the Town Council did not take a decision to enter into
    an agreement of sale of Erf 13, Oshikango, to the first appellant.
    He stated that MrShivolo, the then CEO of the Town Council, was
    fully aware that Namundjebo Northgate Properties was the lawful
    holder of the PTO over the property. The Town Council had been aware
    of the dispute between the holder of the PTO and the Namundjebo
    family concerning Erf 13 and Council was not prepared to sell the
    property to either party until the dispute had been resolved.










  1. The deponent further
    stated that the Town Council was unaware of the sale of the Erf by
    MrShivolo to the first appellant. For this reason the Town Council
    conceded that the sale was null and void. MrSheelongo further
    explained that because of serious allegations of mismanagement of
    the assets of the Town Council, including his dealings in regard
    toErf 13, MrShivolo had since been suspended from his position as
    CEO of the Town Council. He stated that the Council was fully aware
    of Namundjebo Northgate Properties’ right of pre-emption but
    had as yet not resolved to sell the property to either of the
    contestants because of the dispute.










  1. MrSheelongo went on to
    state that it was common cause that MrShivolo did not have the
    consent of the Town Council to sell the property to first appellant,
    nor did he follow the procedure to refer the matter to the Land
    Allocation Committee for their consideration and recommendation to
    the Council. However, he was aware that the Town Council’s
    legal practitioners, LorentzAngula Incorporated, were instructed by
    Shivolo to attend to the transfer of the property to the first
    appellant and once they had received a duly signed Power of Attorney
    by the CEO they were, in his opinion, obliged to give effect
    thereto.










  1. The deponent further
    stated that he was informed by a MsGreyvenstein, the Town Council’s
    legal practitioner, that she was contacted by a MrKutzner, the legal
    practitioner for Northgate, who enquired about the status of the
    transfer of the property and that he advised MsGeyvenstein that they
    would prepare an urgent application to stop the transfer.MrSheelongo
    then advised MsGreyvenstein that the Town Council would only
    consider stopping the transfer if Northgate brought an urgent
    application setting out their reasons why the transfer should not
    proceed.










  1. MrSheelongo ended his
    affidavit by again conceding, on behalf of the Town Council, that
    the sale between itself and the first appellant was invalid and
    should be set aside.










  1. What is clear from the
    affidavit of MrSheelongo is that the previous CEO of the Town
    Council acted from the start without any authority by the Town
    Council as the Town Council, because of the existing dispute, was
    not willing to even consider a sale of Erf 13 until the dispute had
    been resolved one way or the other.Not only did he not have any
    authority for his dealings in this regard but he also did not follow
    the procedure laid down by the Council, namely to refer the matter
    first to the Land Allocation Committee for their recommendation to
    the Council.The fact that he had offered to sell the stand to
    Northgate is a clear indication that he had no ilntention to obtain
    the prior approval of the Minister for the sale. This is further
    strengthened by the fact that it is common cause that MrShivolo also
    did not obtain the prior approval of the Minister for the sale of
    Erf 13, Oshikango, to the Trust. The bestMrShivolo could do was
    perhaps to invite Northgate to make an offer to purchase the stand
    but he himself did not have any authority to offer Erf 13 for sale
    to Northgate.








The issues to be
decided




  1. Although various points
    in limine were foreshadowed in the affidavit of the first
    appellant these, with the exception of the review point, either fell
    away because of the Court a quo’s finding that the
    matter was not reviewable or were rejected by the Court a
    quo.
    Before us the only preliminary point that we were addressed
    upon was the standing of Northgate to bring the application.I will
    deal with this issue at a later stage.









  1. It seems to me that
    there are only two main issues, with some subordinate points,to be
    decided by this Court. The main issues are firstly the question of
    who the rightful owner of the PTO was and with that, the issue of
    the standing of Northgate to have brought this application, The
    second main issue is the validity of the sale agreement signed by
    MrShivolo, purportedly on behalf of the Town Council, and flowing
    from that also the issues of the alleged lapsing of the offer to buy
    the property, the effect of the registration in the name of the
    Trust and the issue of estoppel.










  1. The granting of a PTO
    was a matter of record. Mr van der Nest SC, assisted by Mr Corbett,
    pointed out that in terms of s 25(1) of the Black Administration
    Act, No 38 of 1927, read with s 21(1) and 48(1) of the Black Trust
    and Land Act, No 18 of 1936 and in terms of Government Notice R188
    of 1969, the then State President of South Africa issued certain
    Black Areas Land Regulations which also applied to the then South
    West Africa. In terms of Regulation 47(1) a person could apply for a
    'trading allotment' in the form of a PTO. Regulation 47(5) provided:








'(5) No person shall occupy any Trust
land (read:“communal land”) within a black area unless he
has been or has been deemed to have been duly authorised to do so
under these regulations or any other law.'








  1. The occupation of land
    for business purposes was provided for in terms of s 6(1) of the
    Regulations and stated as follows:








'6(1) No person shall remain in
occupation of any portion of land acquired by the Trust after the
commencement of these regulations except with the permission in
writing of the Bantu Affairs Commissioner and on such terms and
conditions as such Bantu Affairs Commissionermay specify in such
permission.'








  1. In terms of Article
    140(1) of the Namibian Constitution this statutory regime of
    pre-independence laws, survived the independence of Namibia and
    Article 140(4) stated that 'any reference in such laws to the
    President, the Government, a Minister or other official or
    institution in the Republic of South Africa shall be deemed to be a
    reference to the President of Namibia, or to a corresponding
    Minister, official or institution of the Republic of Namibia . . .
    '. The corresponding officer to the‘Bantu Affairs
    Commissioner’ in R 6(1) is now the Permanent Secretary in the
    Ministry.









  1. As far as communal land
    was concerned, Article 100 of the Namibian Constitution vested the
    ownership of land 'if they were not otherwise lawfully owned' in the
    State. See further s 17(1) of the Communal Land Reform Act, Act No 5
    of 2002 which provides that communal land is held in trust by the
    State for the benefit of the traditional communities residing in
    those areas. It furthermore provides that no right conferring
    freehold ownership is capable of being granted in respect of
    communal land. (See s 17(2).)










  1. In regard to the PTO
    held by Northgate there is a clear paper trail leading up to the
    granting of the PTO to Namundjebo Northgate Properties. The first
    PTO granted in respect of Erf 13, Oshikango, was on a pro forma
    application form in which Mr George Namundjebo applied, in his
    personal capacity, on 1 October 1996 for the right to occupy this
    Erf in order to conduct a business thereon. Written permission was
    granted by the Permanent Secretary of the Ministry. On 8 October Mr
    George Namundjebo applied for the transfer of the PTOto Namundjebo
    Northgate Properties. Again written permission was granted by the
    Permanent Secretary of the Ministry and a written certificate in the
    name of Namundjebo Northgate Properties, containing also the
    conditions for such occupation, was issued.










  1. In contrast to the
    above, the appellants’ claim to be the rightful owner of the
    PTO in regard to Erf 13 is, to say the least, confusing.The claim is
    firstly based on the allegation that land, including Erf 13,
    Oshikango, was allocated to the family, and more particularly the
    late father of the first appellant, in terms of the traditions and
    customs of the people of that area. In this regard there is the
    affidavit of Mr Julius Shelunga, a headman in the area, supporting
    the allegation by the first appellant. This however, did not
    constitute, in the light of the legislation referred to above, a PTO
    and, as was pointed out by Mr van der Nest SC, at best only allowed
    for the use of the property. Later on the first appellant contended
    that her late father was granted the particular PTO either expressly
    or tacitly. This claim was based on the final liquidation account of
    her late father’s estate which, under the heading immovable
    property, referred to various properties, inter alia, also a
    shop at Oshikango. The reference to immovable property is a misnomer
    as at that stage no private person was allowed to possess immovable
    property in communal areas. The first appellant’s evidence in
    this regard is also contradicting. She firstly stated that her
    brother, Mr. George Namujndjebo had started a supermarket on Erf 13,
    Oshikango, which was unsuccessful and now she claimed that her late
    father, the holder of the PTO, ran a shop on the same premises. The
    requirement that the PTO mustbe in writingseems to me to exclude the
    granting thereof tacitly or expressly unless it had been reduced to
    writing. The first appellant was not able to produce any written PTO
    granted to her late father in regard to the property. In my opinion
    there is no such PTO otherwise a PTO could not have been granted to
    Mr George Namundjebo over a property which had already been held by
    another person. I am satisfied that on the evidence the first PTO
    which had been granted over the property, Erf 13,Oshikango, had been
    the PTO granted to Mr George Namundjebo.









  1. However, it was also
    contended by the appellants that Mr George Namundjebo, being an
    executor in the estate of their late father, should have applied for
    the PTO in the name of the estate of her late father or should have
    reflected that he applied for it in his capacity as an executor of
    the estate. It was further explained that the company Namundjebo
    Northgate Properties was supposed to only deal with the shareholding
    of the company, of which Mr.Namundjebo was a shareholder,and was
    separate of, and did not also include, the land on which the
    business was to be conducted. It was alleged that the name of the
    company, Namundjebo Northgate Properties, was only registered as a
    defensive name.










  1. All the documentary
    evidence placed before the Court gainsaid the above allegations. The
    applications for the PTO and the transfer thereof to Namundjebo
    Northgate Properties were made in the personal capacity of
    MrNamundjebo, unqualified as is alleged above. What is more there is
    no explanation by MrNamundjebo why he applied for the PTO in his
    personal capacity when he was supposed to have acted only as an
    executor of their late father’s estate. Likewise there is no
    explanation why he applied for the transfer of the PTO to Namundjebo
    Northgate Properties if the company had nothing to do with the land
    and was something separate from the holding of the land. As a person
    involved in business, he should have been well aware of the
    significance and the effect of acquiring a PTO and its further
    transfer thereof in the name of the company. Similarly, when he had
    sold his shareholding in the company, he should have realisedthat he
    had effectively divested himself of having any say in regard to the
    PTO. Why did he or the family not take any steps to rectify the
    situation if it was all along the intention to separate the holding
    of the land from the shareholding of MrNamundjebo in the
    company?MrNamundjebo’s silence on all these issues raises
    doubt as to the veracity of such allegations.









  1. The fact that Namundjebo
    Northgate Properties, and later Northgate, did not pay any rent for
    their occupation of Erf 13 was explained as a set off against the
    capital loaned by NBL to construct the floor of the warehouse.
    Again, there is only the bare allegation made without any detail in
    regard to such agreement. The information about the said agreement
    could only have come from Mr George Namundjeboand the Court would
    have expected him to provide details concerning the terms of such
    agreement i.e. what the amount of the loan was, at what rate per
    month the loan was paid off etc. Such evidence would have been
    important because it could have explained why no rent was ever paid
    by Namundjebo Northgate Properties to the Namundjebo family or the
    estate and could have strengthened the case for the appellants.
    Again,the bare allegation of such an agreement raises more questions
    than answers.









  1. After the Township was
    proclaimed, the ownership of the land within its jurisdiction became
    the property of the Township subject to existing rights. (See s
    3(3)(a) and (b) of Act 23 of 1992.) It is common cause
    that those existing rights are representedby PTOs issued before
    Independence or since by the Permanent Secretary of the Ministry. As
    there was no PTO in existence in regard to Erf 13, Oshikango, there
    was no legal impediment which prohibited the granting of the PTO to
    Mr George Namundjebo and its further transfer to Namundjebo
    Northgate Properties. It is also not alleged by the appellants that
    the granting of such PTO to Mr George Namundjebo was unlawful.









  1. For the reasons set out
    above I am satisfied that the evidence presented by the appellants
    do not raise a genuine or bona fide dispute in regard to who
    is the rightful holder of the PTO in regard to Erf 13, Oshikango,
    and I find that Northgate is the rightful holder of the said PTO.
    For the same reasons set out above it follows that the conditional
    counterclaim of the appellants must also be dismissed.










  1. MrBokaba SC, assisted by
    Mr Rajan and Mr Namandje, challenged the standing of Northgate to
    have brought the application on the basis that it was a different
    entity fromthat of Namundjebo Northgate Properties (Pty) Ltd in
    whose name the PTO had been issued. He referred to the allegation by
    MrSheelongo that he had no knowledge of Northgate being the holder
    of the PTO. Counsel submitted that there had never been a cession by
    Namundjebo Northgate Properties (Pty) Ltd to Northgate or any other
    entity and that Northgate therefore lacked the necessary standing to
    have brought the application.










  1. In support of his
    submissions counsel referred the Court to the case of Maasdorp
    and Another v Haddow NO and Another,
    1959 (3) SA 861(C) where
    the following was stated at 866A-E, namely-








'It is essential throughout that it be
borne in mind that applicants’ contract was not with the
company but with certain private individuals and that,
notwithstanding the confused language of clause 2, it related
toshares and not to the immovable property of the company. A change
in the personality of the shareholders would not ordinarily affect
the legal rights of a company in and toits immovable property, for it
would remain vested with the ownership and would continue in
possession and occupation thereof. All that would be changed would be
the control of the company. Shareholders could not, without the
consent of the company, merely by selling their shares, give the
purchasers in their private capacities a possession and occupation of
the immovable property adverse to that of the company.'








  1. Counsel submitted
    therefore that the PTO remained vested in Namunjebo Northgate
    Properties (Pty) Ltd and that, whatever rights flowed from the PTO,
    could only have been exercised by Namundjebo Northgate Properties
    (Pty) Ltd and no other entity.









  1. After its standing had
    been challenged Northgate attached a notice in terms of s 44(1)(b)
    of the Companies Act, 61 of 1973,whereby the name of the company was
    changed by dropping the name 'Namundjebo'from the name of the
    company. What happened constituted only a change of name. The
    company and its structure were not altered and NBL remained the only
    shareholder of the issued shares in Northgate. Where, as in this
    instance, the name of a company is changed without change of its
    structure, no cession of rights or assignment of obligations are
    necessary. The change of name of the company did not affect any
    rights, debts, liabilities or obligations of the company. It did
    also not render defective any legal proceedings by or against the
    company instituted or defended by such company. (See s 44(3) of Act
    61 of 1973.)









  1. In regard to the second
    main issue namely, the validity of the sales contract concluded
    between MrShivolo, purportedly acting on behalf of the Town Council
    of HelaoNafidi, and the appellants, on behalf of the Trust, I am
    satisfied that any selling of immovable property which forms part of
    the Townlands of that Township is subject to the prior approval of
    the Minister in terms of s 30(t) of the Act. This section provides
    as follows:








'30(1) Subject to the provisions of
subsections (2) and (3), a local authority council shall have the
power-







"(t) subject to the provisions of
part X111, to buy, hire or otherwise acquire, with the prior approval
of the Minister and subject to such condition, if any, as may be
determined by him or her, any immovable property or any right in
respect of immovable property for any purpose connected with the
powers, duties or functions of such local authority council, or to so
sell, let, hypothecate or otherwise dispose of or encumber any such
immovable property;”'.








  1. Subsections (2) and (3)
    are not relevant to the issues to be decided in this matter. S 63(1)
    of the Act renders the provisions of s 30(t) subject to the
    provisions of s 63(1)(a) and (b) and provides that a
    local authority council has the power to let immovable property
    provided that the period of lease does not exceed one year. (Ss(a)).
    Furthermore the Municipalities mentioned in Schedule 1 of the Act,
    namely Windhoek and Swakopmund, have the power to let, sell,
    encumber or hypothecate townlands without the prior approval of the
    Minister(ss(b)). It is further clear from the definition of the
    words 'local authority council' in s 1 of the Act that that includes
    'any municipal council, town council or village council'. Therefore
    where s 30(t) refers to a local authority it included, by
    definition,a town council and so far as the sale of immovable
    property by a Town Council was concerned s 30(1)(t) was not
    altered by s 63 and the sale of such property still required the
    prior approval of the Minister.









  1. I am furthermore
    satisfied that the words 'or to so let, sell etc.' (my
    emphasis) can only be a reference to the manner in which it can be
    let or sold, namely with the prior approval of the Minister
    otherwise the word ‘so’ would have no meaning and would
    be redundant.As was stated in the case of City of Cape Town v
    Premier, Western Cape and Others,
    2008(6) SA 345 at 376 para
    [70],it is a trite principle of statutory interpretation that a
    statute should not be construed so as to render any part thereof
    superfluous.(See also Commissioner for Inland Revenue v Golden
    Dumps (Pty) Ltd,
    1993 (4) SA 110 (A) at 116F–117B.) The
    above interpretation is also supported by the context of the Act
    because, if a local authority had the power to let and sell
    immovable property without the prior approval of the Minister,then
    it would not have been necessary for the Legislator to enact s
    63(1)(a) and (b) whereby the provisions of s 30(1)(t)
    were specifically made subject to this section in regard to the
    letting and selling,etc of property.









  1. It is common cause that
    in this particular instance the prior approval for the sale of Erf
    13, Oshikango, to the Trust was not obtained before the sale and,
    for that matter, also not thereafter. The appellants contended that
    s 30(1)(t) was not applicable to this issue but that the sale was
    subject to s 68. Section 68 is enacted under Part XIV of the Act and
    deals with the valuation of rateable property within local authority
    areas and the section establishes a valuation court which has, after
    due advertisement of the session of the court, to consider the
    valuation roll and any objections thereto. It has in my opinion
    nothing to do with the selling of immovable property by a local
    authority.










  1. It follows therefore
    that the sale of Erf 13, Oshikango, did not comply with the
    provisions of the Act, and more particularly s 30(1)(t)
    thereof. The question is now what the effect of such
    non-complianceis.










  1. I am satisfied that it
    was the intention of the Legislator to visit such non-compliance
    with invalidity. I say so for the following reasons:









  1. The Minister can, in
    terms of s 30(1)(t), grant his approval subject to any
    conditions imposed by him. It follows that to by-pass the Minister,
    before the contract of sale was concluded,may render the power of
    the Minister to impose conditions nugatory.









  1. The members of a Town
    Council may not always have the necessary commercial expertise to
    deal with and to enter into contracts to the advantage of the
    Township with its most valuable asset, namely its land. This may be
    especially so in the areas where previously no Town Councils existed
    and where no land could be owned by private individuals or
    companies. In those instances the members of the Town Council, as
    well as their officials, may lack the necessary experience and
    expertise to deal with valuable assets such as the landed property
    of the Council. There would also not be any guidelines which could
    be followed to determine i.e. the value of land. That the Legislator
    was mindful of this problem is further demonstrated by the exception
    that was made in this regard to the Municipalities of Windhoek and
    Swakopmund, both of which are old and long established institutions
    well versed in commercial dealings with land and with easy access to
    experts in regard to these aspects when and if necessary.










  1. The inexperience of
    Councils could lead to the commission of serious irregularities and,
    without the necessary control by the Minister, the system was also
    open to exploitation as was proven in this particular instance.









  1. It follows therefore
    that the agreement entered into by Shivolo, purportedly on behalf of
    the Town Council, and the appellants, on behalf of the Trust, is
    null and void ab initio and the registration of the property
    in the name of the Trust must be set aside. Both counsel addressed
    us on the effect of our abstract system of registration of landed
    property. I agree with counsel that after the registration of the
    transfer of such property not every defect in the contract giving
    rise to the real agreement will necessarily vitiate the real
    agreement. (See the article by C.G. van der Merwe: 27 Lawsa(1st
    re-issue) under the heading 'Things' paragraphs 362, 363 and 365,
    and Kriel v Terblanche 2002 (6) SA 263 (NC).)









  1. However, in the case of
    Farren v Sun Service SA Photo Trip Management (Pty) Ltd 2004
    (2) SA 146 (CPD) the applicant in that matter applied for specific
    performance in terms of a written agreement of sale of immovable
    property. The respondent relied on the provisions of s 228 of the
    Companies Act, Act 61 of 1973, to avoid transfer of the property to
    the applicant. The section prohibits the disposal of the undertaking
    or greater part of the assets of a company by its directors unless
    such sale was ratified in a general meeting of the shareholders of
    the company. No such ratification occurred in this instance. It is
    generally accepted that s 228 was introduced for the protection of
    shareholders (p 153A-C). The learned Judge Cleaver, J, dismissed the
    application. At 155A-B the following is stated:








'I agree with him that the issue is
not so much whether a transaction entered into in contravention of
section 228 is void or voidable. It is clearly unlawful in the sense
that it is concluded in contravention of the section. It also has no
legal effect, but that can be cured by subsequent ratification by the
shareholders in general meeting.'







The same sentiment was
expressed by the learned Judge when he stated at 157J–158A,
namely:







'As far as section 228 is concerned an
agreement concluded on behalf of the company in contravention of the
section has no legal effect unless and until it is ratified by the
shareholders.'







To the same effect is the
article by Professor van der Merwe where he stated at para 365,
supra, as follows:







'In certain types of contract the
vitiating element attaches to both the preceding contract and the
real agreement. Thus not only contracts aimed at achieving an illegal
object, for example, illicit diamond dealing, are void but also the
real agreements and transfers which are affected in terms of such
contracts. Certain contracts are unenforceable because they do not
comply with certain statutory requirements: thus writing, official
approval or a certain manner of achieving an object may be
prescribed. Whether a real agreement or performance in terms of such
an unenforceable contract is vitiated by the defect in the preceding
contract depends on the intention of the legislature in rendering
such a contract void on the ground of non-compliance with a certain
requirement.'








  1. For the reasons set out
    above there is no doubt in my mind that it is the intention of the
    Legislator to visit non-compliance of the provisions of s 30(1)(t)
    with invalidity.









  1. Notwithstanding the
    clear evidence of MrSheelongo that Shivolo had no authority for any
    of the actions taken by him, each of the parties still attempted to
    extract from MrShivolo’sirregular and unauthorised acts some
    advantage to bolster their claims. So it was submitted on behalf of
    Northgate that the offer to sell Erf No 13, Oshikango, was a valid
    offer which they had accepted and that the process must continue
    from there. In turn MrSheelongo tentatively wanted to rely on the
    lapsing of the time afforded to Northgate by MrShivolo within which
    they were required to accept the offer. On behalf of the appellants
    the point was taken that the offers made to Northgate had been valid
    offers and by not exercising its right within the time period
    stipulated in the letters the offers had lapsed and Northgate had no
    further rights. It was furthermore also argued byMrBokaba SC, on
    behalf of the appellants, that the Town Council, when it allowed the
    transfer of the property to go forward notwithstanding its knowledge
    that Northgate was the holder of the PTO, and that they disputed
    transfer of the property to the Trust, thereby, ratified any
    unauthorised acts by MrShivolo. It was also submitted by counsel
    that the Town Council was estopped to now rely on the unauthorised
    acts of their former CEO.









  1. In my opinion none of
    the above submissions can be sustained. I have already pointed out
    that MrShivolo had no authority to offer to sell the Erf 13,
    Oshikango, to anybody and consequently its offer to Northgate to
    sell the property could not bind the local authority. If Northgate
    is correct that the offer by Shivolo was valid then acceptance of
    the offer could have resulted in a binding contract of sale which,
    because of the provisions of s 30(1)(t), would in any event
    have been null and void. For the same reasons no reliance could
    therefore be placed on the time schedule within which the offer to
    sell had to be exercised. If the offer was invalid it follows that
    its terms met the same fate. As was pointed out by Mr van der Nest
    SC a nullity cannot be ratified. In this instance we do not only
    deal with an unauthorised act by MrShivolo but also an unlawful one
    which cannot be ratified in any way. However, it is not open for the
    appellants to rely on either the doctrine of estoppel or the rule in
    Turquandas that would have the effect of perpetuating an
    unlawful act because of the non-compliance with s 30(1)(t) of
    the Act. Although I am of the opinion that the learned Judge a
    quo
    was correct that estoppel could not be raised in these
    proceedings against the Town Council I will for purposes of this
    judgment accept that it could. However, in the matter of City of
    Tswane Metropolitan Municipality v RPM Bricks Ltd,
    2008 (3) SA 1
    (SCA)the following was stated in regard to the defence of estoppel
    at 5F – 6A, namely:








[11] It is
important at the outset to distinguish between two separate, often
interwoven, yetdistinctly different ‘categories’ of
cases. The distinction ought to be clear enough conceptually. And
yet, as the present matter amply demonstrates, it is not always truly
discerned. I am referring to the distinction between an act beyond or
in excess of the legal powers of a public authority (the first
category), on the one hand, and the irregular or informal exercise of
power granted (the second category), on the other. That broad
distinction lies at the heart of the present appeal, for the
successful invocation of the doctrine of estoppels may depend upon
it.







[12] In the second category, persons
contracting in good faith with a statutory body or its agents are not
bound, in the absence of knowledge to the contrary, to enquire
whether the relevant internal arrangements or formalities have been
satisfied, but are entitled to assume that all the necessary
arrangements or formalities have indeed been complied with. Such
persons may then rely on estoppels if the defence raised is that the
relevant internal arrangements or formalities were not complied with.







[13] As to the first category: failure
by a statutory body to comply with provisions which the legislature
has prescribed for the validity of a specified transaction
cannot be remedied by estoppel because that would give validity to a
transaction which is unlawful and therefore ultra
vires.
’(Reference to authorities omitted).







(See further the
Kriel-case, supra; Klerck N.O. v Van Zyl and Maritz N.N.O.,
1989 (4) SA 263 (SECLD); Strydom v Die Land en Landbou Bank
van Suid-Afrika,
1972 (1) SA 801 (A) and Stand 242
HendrikPotgieter Road Ruimsig (Pty) Ltd v Gobel,
2011 (5) SA
1(SCA).)







I respectfully agree with
the exposition of the law as set out above.








  1. In the result I have
    come to the conclusion that the appeal cannot succeed. Because I
    have come to the conclusion that the offer to sell Erf 13,
    Oshikango, was unauthorized and did not bind the Town Council, the
    third order granted by the Court a quo must be slightly
    amended.










  1. The appeal is dismissed
    with costs, including the costs of one instructing and two
    instructed counsel. The third order issued by the Court a quo is
    set aside and the following order is substituted therefore:








(3)
The Town Council of HelaoNafidi is ordered to comply with their
contractual obligations in terms of the PTO issued in respect of Erf
13, Oshikango to the holder thereof, Northgate Properties (Pty) Ltd.’































_________________________



STRYDOM AJA



















________________________



MARITZ JA



















________________________



MAINGA JA












APPEARANCES























1ST
AND 2NDAPPELLANT:























1st
RESPONDENT:



























T J B Bokaba, SC



Assisted by H Rajan
and S Namandje







Instructed by
SisaNamandje& CoInc











M duP van der Nest, SC



Assisted by A W
Corbett







Instructed by Engling,
Stritter& Partners