- April 3, 2023
- |Administrative Law, Concise Law Reports (CLR)
The first applicant is a company with limited liability, registered in Namibia. It owns landed property just past Klein Windhoek Town and in which it operates a business called Droombos wherein it has a restaurant and accommodation facilities, including hosting events. It obtained consent regarding the usage of the property from the respondent, the Municipal Council for the City of Windhoek. It would appear that following complaints from neighbours, the respondent eventually withdrew the consent and also caused notices to be issued to the second applicant, Ms van der Merwe for violation of certain regulations. The first applicant contends that a series of decisions taken by the respondent, which prejudicially affected the Consent issued to it and the use it could put the property to, should be reviewed and set aside. This is because the respondent did not afford the first applicant a hearing before the decisions, including recommendations, were taken. The applicant further took issue with the respondent’s officials who took the decisions, contending that they were not properly delegated to do so in terms of the Local Authorities Act, 1992. Last, the first applicant applied for declaratory relief regarding certain provisions of the consent, as being unreasonable. It also sought an order declaring what activities it may carry out on the premises, including operating an accommodation facility, a conference facility, and an events and functions facility, and that it could serve alcoholic beverages every day, between 14h00 and 02h00. The respondent opposed the application pound for pound.
MASUKU J:
[71] This decision is impugned on two principal grounds. First, that the respondent was never afforded a hearing before the decision conveyed above and taken by Mr van Rensburg was implemented. Furthermore, the applicants contend that Mr van Rensburg was never delegated by the Council to act on its behalf and to issue the decision in question. As such, so contends the applicant, the decision of 29 October 2019, is liable to be set aside
[73] The first issue to be determined in this regard is whether the respondent is correct in its assertion that the letter in question did not amount to a decision that can be said to be reviewable. In Permanent Secretary of the Ministry of Health v Ward 2009 (1) NR 314, at 320, para 22H-J, the Supreme Court, per Strydom AJA, remarked as follows regarding the question of whether a decision made by an administrative official is reviewable:
‘The basis on which this distinction is drawn depends on whether the functionary’s decision amounts to administrative action or as was alleged in this instance, he acted purely in terms of his contractual rights. To decide whether a decision by a functionary amounts to administrative action is not always easy and a reading of the cases on this issue bears out this difficulty. Certain guidelines have crystallised out of judgments of the courts in Namibia and also in South Africa, but it is clear that the courts are careful not to lay down hard and fast rules and each case must be judged on its own facts and circumstances. There is also no doubt that in deciding the issue courts must have regard to constitutional provisions which, in certain instances, have broadened the scope of reviewable action.’
[77] In the instant case, I am of the considered view that the respondent, even in its answer, contends that it took the decision in the implementation of legislation, namely, the Town Planning Ordinance. This, in my view, points inexorably, in the direction that the decision was indeed administrative in nature and character. Furthermore, its source was legislative as well. The nature of the power exercised, more importantly, had a prejudicial effect on the nature, extent, and privileges contained in the Consent extended to the applicant.
[78] I accordingly come to the conclusion that I cannot agree with Mr. Narib that the letter written by Mr van Rensburg did not fall within the realms of an administrative decision. It has all the hallmarks of one and I so hold. In my considered opinion, the letter, because of its content and import, particularly on the first applicant’s rights conferred by the Consent, was a decision that is administrative in nature, character, and effect.
[80] The right to be heard, i.e. the audi alteram partem rule, is an integral and indispensable part of the law of Namibia. It is implied in Art 18 of the Constitution, which requires administrative bodies and administrative officials to act fairly and reasonably and comply with the requirements imposed by the common law and any relevant legislation. The right to be heard is one such right imposed by the common law. To violate that right before a prejudicial decision is made against one, is inconsistent with the notions of fairness and reasonableness required by Art 18.
[81] In dealing with the principle of the right to be heard, Tebbutt JA, sitting with Kotze P and Browde JA in Swaziland Federation of Trade Unions v The President of the Industrial Court and another[1998] SZSC 8 (01 January 1998), had the following to say:
‘The audi alteram partem principle i.e. the other party must be heard before an order may be granted against him, is one of the oldest and universally recognised principles enshrined in our law. That no man is to be judged unheard was a precedent known to the Greeks, was inscribed in ancient times upon images in places where justice was administered, is enshrined in the scriptures, was asserted by an 18 century English judge to be the principle of divine justice and traced to the events in the Garden of Eden, and has been applied from 1723 to the present time (see de Smith: Judicial Review of Administrative Action p. 156.’
[82] It is clear, in my considered opinion, that the respondent did not follow this hallowed principle when its official made the prejudicial decision to alter the Consent and add a further condition to it and which it is undeniable, became something of an Albatross around the applicant’s business’ operational neck. We should not, in this day and age, be writing about the need to afford an affected party audi when its existence and application have been accepted for centuries.
[83] In the premises, I find that the letter written by the respondent’s official, Mr van Rensburg, was an administrative decision. I also find that it is one, which was taken without having afforded the first applicant audi. It is thus an odious decision that must be reviewed and set aside, as I hereby do.
With regards to the applicant’s claims that the said decision was made by Mr van Rensburg without any delegation from the authority in whom the power to exercise that power is by law reposed, the following:
[88] One needs, in connection to this matter, to have regard to the relevant piece of legislation to determine the applicability of the issue of delegation in this matter. Section 31 of the Local Authorities Act allows the council, to delegate some of its powers and functions to among others, officials in writing. The powers to change or vary the terms of the consent granted to the first applicant lay with the council.
[90] It is clear, from the foregoing, that the deponent, relied on s 31 of the Act and provisions of the Town Planning Scheme. What is plain from s 31 of the Act is that the delegation must be in writing. The deponent failed to provide that written authority in his affidavit and relied, for that purpose, on the extended meaning of s 31 of the Act, which does not, in my considered view, assist the respondent’s case.
The recommendation and resolution of 5 and 12 November 2020
[100] I am of the considered view that the applicant was entitled to be afforded audi before the recommendation was made. This is because of the serious consequences that flowed from the recommendation made to the management committee that the Consent be withdrawn or cancelled. Clearly, that decision would have drastic consequences for the applicant’s use and enjoyment of the property in question.
The notices issued in terms of s 56 of the CPA
‘[105] It will be recalled that the respondent caused certain notices in terms of s 56 of the CPA to be issued against both applicants. It is clear that those notices were issued pursuant to the decisions made by the respondent, which the court has found they are liable to be reviewed and set aside. As such the said notices cannot survive outside the existence of the impugned decisions. I hold that with the decisions set aside, the notices in terms of s 56 of the CPA should also fall away.
The court, therefore, held the following:
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- That the decisions sought to be impugned by the first applicant, were administrative decisions and thus amenable to being reviewed.
- A party, who may be prejudicially affected by a decision made, is entitled to rights enshrined in Art 8, including the right to be heard before that decision is made. In the instant case, the first applicant was denied audi.
- Preliminary decisions can have serious consequences in particular cases, where they lay a foundation for a possible decision that may have grave results – Director: Mineral Development, Gauteng v Save The Vaal Environment 1992 (2) SA 709 at 718D.
- That it is permissible in law for a repository of power to delegate the function to another. In the instant case, the delegation must be in terms of s 31 of the Local Authorities Act, 1992, which requires the delegation to be in writing and this was not observed in the instant case. Where it is purported to have been done, the issue of compliance therewith was not raised in the papers but in the heads of argument, which is not permissible because it denied the other party the opportunity to deal with that allegation in the course of the exchange of papers.
The court reviewed and set aside the decisions of the respondent and by and large refused the declaratory relief on the grounds that it was not a proper case for the court to exercise its discretion, as it required the court to venture into the realms of issues of policy.
As a result, the decisions taken by the first respondent’s officials dated 29 October 2019, 5 December 2019, 24 January 2020, and 14 February 2020 and a recommendation made on 5 November 2020, as well as a resolution passed by the first respondent’s management committee on 12 November 2020, were reviewed and set aside. The several notices issued in terms of section 56 of the Criminal Procedure Act, 1977 by the first respondent’s municipal police were set aside.
With regard to costs, in this case, the applicant has been both successful and unsuccessful. It has been successful in the review relief and one declaratory relief. It however failed in respect of prayers 4 and 5. The court thus held that the applicant has been substantially successful and, having gained a large measure of the relief sought, granted in its favour. It should, in the circumstances, recover its costs.