Moosa v Maseru City Council and Another (C. OF A.(CIV)NO.5 04CIV/APN/2/04)

Case No: 
CIV/APN/2/04
Media Neutral Citation: 
[2004] LSHC 121
Judgment Date: 
15 October, 2004

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C. OF A.(CIV)NO.5 04

CIV/APN/2/04

IN THE LESOTHO COURT OF APPEAL


In the matter between:-


OSMAN SALLY MAHOMED MOOSA APPELLANT

and

MASERU CITY COUNCIL 1st RESPONDENT

MINISTRY OF LOCAL GOVERNMENT 2nd RESPONDENT

THE ATTORNEY GENERAL 3rd RESPONDENT


Held at Maseru on 11 and 15th October 2004


SUMMARY


Planning and building permission in terms of the Town and Country Planning Act 11 of 1980 and the Building Control Act 8 of 1995. Revocation of permission granted in respect of a given structure. The effect of the Maseru Development Plan in terms of Government Notice No.2 of 1994. Appellant (Respondent on the court a quo) failing to adopt appropriate procedure. Consensus of the parties and order made in terms of that consensus.


CORAM: STEYN, P

PLEWMAN, JA

MELUNSKY, JA


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JUDGMENT


Plewman J.A.


  1. This appeal concerns a dispute about a building which is in the course of construction on Site 12291-118 in Lower Thetsane in Maseru. When the appeal was called the court brought to the attention of the parties an authority (which will be referred to hereafter). This led to developments which arc set out below. It is nevertheless necessary to outline what it is that has led to this appeal.


It is common cause that the appellant is the holder of all rights to and interest in Plot 12291-1 18 and that in December 2003 he was erecting on this land a structure which has led to the dispute between the parties.


  1. On 31 December 2003 the first respondent (the Maseru City Council referred to herein for convenience simply as the Council) applied, by way of motion, for the issue of a rule nisi but was granted interdictory relief in final form against the appellant. I will discuss the form of relief in more detail presently. It seems clear that any development on the site was (and is) only permissible if there has been a grant of both planning permission and the issue of a building permit. The grant of planning permission is governed by the Town and Country Planning Act 11 of 1980. The issue of a building permit is regulated under the Building Control Act 8 of 1995.


  1. It is also necessary to refer briefly to the earlier history of the matter. This too is not really in dispute. Prior to December 2003 Appellant decided to embark on the construction of a building on the site in question. The building then planned was to take the form of eight single story apartments. Planning permission was (so it is said) sought and obtained and building permit was issued. At this point (so it is averred by appellant) the architect "then recommended" that a double story structure for the eight apartment be erected and construction of a double story set of apartments commenced. The Council by way of a written notification - at that point required that the building work be stopped. This demand was acceded to but new plans were filed with the council in November 2003. Appellant alleges in the papers that new planning permission was granted and a new building permit was issued. The latter is the document annexed to the answering affidavit (as Annexure A). On the face of the document it was issued on 2 December but only formally signed and delivered to appellant on 18 December. It is also clear that the grant of permission was made subject to certain conditions. The most important of these conditions (for present purposes) reads:


"This permit does not convey any authority to build in contravention of any law or laws or in contravention of any building or development restriction, in the area in which the site is situated. "


  1. On 19 December the Council (for whatever reason) realized that the permission given had to be revoked. It obtained ministerial permission to recall its grant on 19 December.


The 20th and 21st December were a Friday and Saturday respectively but on the Monday (that is 22 December) a further notice was served on the Appellant. This is the document marked MCC 3 in the record. It is in the form of a letter on the Council's note paper, dated 22 December 2003 and it states that a decision of the Council was taken, in its capacity as "The Building Authority" to withdraw the building permit and, in its capacity as the Planning Authority, to withdraw the "Planning Permission" granted to Appellant,


The letter advances, as the reason for the Councils decision, the contention that "the proposed development on (the site does) not conform to the requirements of the Maseru Development Plan which stipulates a maximum net housing density of 60 persons per hectare'1.


  1. The appellant despite service of the letter and the revocation or purported revocation of its earlier "permission" and, indeed, in defiance thereof, simply went ahead with the construction of the two story building.


  1. This was the state of play on 31 December 2003 when the council launched, as a matter of urgency, the application presently before us. There are (to be blunt) numerous difficulties - not all of which seem from the answering and replying affidavits to have been recognized by the parties. I will come later to the precise form of relief sought and the order granted, but all that need be noted at this stage is that the application was opposed - the main assertion being that the "withdrawals" were not lawfully made. The court a quo, on 2 January directed that the matter "be moved" on 5 January 2004 but it was only on 15 January that it granted "the application with costs" interdicting appellant from proceeding with the development, directing him to demolish the existing structures and ordering appellant to "comply with all statutory requirements including the Maseru Development Plan." There is no judgment in the record and no reasons have been recorded for what appears to be the grant of final relief. [It must be noted however that the grounds of appeal suggest that the learned judge must have given oral reasons for his order].


Neither counsel who appeared before us had appeared in the court a quo and they were unable to assist us in understanding the transformation which the proceedings apparently took and how it came about that final relief was granted on a notice of motion seeking interim relief in the form of a rule.


  1. This brings me to what would have been and. in the final analysis still is. the starting point of the enquiry- This is that there existed at all relevant times a development plan for the Maseru area framed in terms of the Town and County Planning Act 1980 and proclaimed by Government Notice No.2 of 1944. The Act properly interpreted requires that permission be given for any development of land commenced and carried out after the commencement of the Act. There is difficulty in this regard as the printed statute seems to contain a misprint. Section 9(1) (as set out) reads as follows:-


"(1) Subject to this section, permission shall be required group of land or building uses which may be prescribed by order of the number, for any development of land commenced and carried after the commencement of this Act."


The words I have underlined cause the problem. 1 am aware that the Commission of Inquiry (Reconstruction of Maseru City Centre) of November 2003 in terms of Legal Notice No.78 in its report of 23 November 2003 suggested that the word "for" should be added after the word "required" to render the section meaningful. For my part I am more inclined to the belief that the underlined words are a printer's error. But however that maybe the conclusion that it was the legislature's intention to make it compulsory that formal planning permission is a legal perquisite for any development is clear. I so construe the section.

For completeness sake I point out that Section 15 (1) (b) of the Act provides that ''permission to develop land may, whenever it appears to be expedient, be revoked by the Planning Authority after obtaining the consent of the minister by giving written notice to that effect to the persons concerned". The Council (as has been stated above) followed this procedure.


There was also in force at the time the Building Control Act 8 of 1995 Section 18 (1) of this Act provides that no person shall, without the prior approval in writing of the building authority in question commence any building, "Commence" here would. I consider, relates to the activity of building.


  1. There was subsequently an application for a stay of execution (It is not clear what the fate of this application was) and on 19 January 2004 a notice of appeal with a statement of the grounds of appeal was filed.


It is also relevant to record that in opposing the Council's application no counter application was made seeking to set aside the withdrawals (either on the grounds of illegality or a failure to afford appellant a hearing before the revocation of the permission granted) such as would have led to a full investigation of the issue and the surrounding circumstances. This left this court to deal with the appeal on grounds which may well be too limited to ensure that all aspects of the matter have been properly canvassed.


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Two questions obviously arose. The first (and perhaps the simpler of the two) is whether the fundamental point at issue between the parties is capable of resolution on the papers. Clearly there is a dispute as to whether the new plans are in conformity with Maseru Development Plan. The Council asserts that they are not. If that is correct the condition of the original permission of 1 8 December has not been met. That permission would then be ineffective and the withdrawal or non-withdrawal would be irrelevant. The appellant for its part asserts that the plans did (and do) comply with the development plan. Neither party asked that the matter be referred to evidence and there is nothing before us to show how the learned judge a quo dealt with the issue. Normally where no application is made to refer a dispute on the affidavits to evidence resort is had to the rules enunciated in the case of Plascon Evans Paints Ltd vs Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).


The principle established by this case is, subject to the limits set out in the judgment, that the version of the respondent will be accepted. That however, relates to pure disputes of fact which in my view; we do not find in the present case. Here we have only contending assertions, a statement as to what is relevant in the plan itself (but not the whole plan) and contentions as to how one is to calculate or apply the maximum net density of 60 persons per hectare - surely a technical concept in the field of town planning. For all these reasons it does not seem to me that this aspect of matter can be decided by this court one way or the other.


The second difficulty seems to me to be one of a more serious nature. It is that the present appellant seems to have adopted the attitude that he was simply entitled to ignore the letter of 22 December withdrawing the building permission granted to him on 18/12/03. This amounts to him resorting to self help. In my view he was not entitled to do this. Unhappily when given legal assistance after the launching of the application he again adopted an incorrect procedure. The letter of the 22 December is an official act by an authority established in law. As such, even if it be a step taken in error, it is not a nullity. See Rollomatic Engineering (Pty) Ltd vs President Steel Corporation Ltd 1973 Burrel Patent Reports 437 al 440A-G. There Colman J states as follows:-


"In my judgment there is a fundamental error in the reasoning in support of the defence under discussion. If may be said, loosely, that the Registrar had "no jurisdiction " to grant an amendment introducing a new claim falling outside the scope of the existing claims, in the same sense as a judge may he loosely said to have "no jurisdiction" to grant a sequestration order unless an act of insolvency has been proved. But that does not mean that the Registrar, if he erroneously grants the amendment, or the judge, if he erroneously grants the sequestration order, has done something which is no more effective than if it had been done by the janitor of the building in which he sat.


I must assume, at the exception stage, that the Registrar erred. But his erroneous decision was not, in my view, a nullity. He was vested by Statute with the judicial or quasi judicial function of deciding whether or not to grant the amendment; it was his duty to refuse an amendment falling outside the limitations laid down in section 36 (3); but, as I read the Statute, the function of


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deciding whether or not those limitations were exceeded was vested in him. He was. therefore, dealing with a matter within his jurisdiction, in the strict sense of that term, and it remained a matter within his jurisdiction even if he decided it erroneously. There had been opportunities for persons interested to oppose the grant of the amendment, and there was provision for an appeal or appeals against erroneous decisions. But a decision, honestly made by the appropriate officer and not upset on appeal or review, is final. It is not open to the present respondent, after the lapse of a dozen years, to say that as the Registrar erred, his grant of the amendment had no legal consequences, and the subsequent purported grant of the patent was a nullity.


There are well-known principles, grounded in public policy, which preclude such inroads upon the states of affairs which follow upon the bona-fide decisions of properly constituted tribunals. No one can be heard, after a sequestration order has been made final and the time for appeals has elapsed, to say that the Court was wrong in holding that an act of insolvency had been committed, and hence that the purported sequestration had never taken place. No one can be heard, years after the time for objecting to an income tax assessment has elapsed and no objection has been lodged, that in fact the accruals on which tax was levied were capital and not income: thai the Revenue authorities had no "jurisdiction" to tax capital: and hence that the assessment was a nullity and may be ignored. For the same reasons, no one can be heard to say what the respondent is now seeking to say.


There is much authority which supports what I have said, but I do not think that there is any need for me to refer to anything more than paragraph 15 on pages 14 and 15 of Spencer-Bower and Turner on Res Judicata, 2" Edition, where it is pointed out that "a competent tribunal has jurisdiction to give a wrong judgment" and that the wrong judgment will, in appropriate circumstances, be unassailable. "


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The only appropriate step which could (and should) then have been taken was for appellant to take steps to set aside the notice of withdrawal of 22 December 2003. That the Council has, in appropriate circumstances, power to revoke a permission earlier granted is clear from section 15 of the Town and Country Planning Act (which I have quoted above) and from section 32 (2) (c) of the Interpretation Act 19 of 1977. However various complex and difficult questions will then (almost certainly) arise - such the applicability of the audi alteram principle or precisely how the statutes creating the planning authority are to be construed and even whether (as appellant seems to suggest) there was an improper use of the Council's planning powers. These are not matters which could (or even should) be investigated in this appeal.


  1. When the authority cited above was drawn to counsels' attention and the difficulties I have mentioned were adverted to, counsel for the appellant conceded that appellant had indeed failed to invoke the proper remedy. Thereafter counsel for both parties concurred in a suggested order which would best serve the interests of justice.


It was agreed that the interdict granted in paragraph 1.1 of the court a quo's order would have to remain in place until and unless it was revoked in appropriate proceedings or by agreed steps. It was also agreed that the questions which arise in relation to paragraphs 1.2 and 1.3 of the order of the court a quo called for an investigation which could not properly be made on the papers as they now stand. The


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Council, through its representative, was willing to afford Appellant an opportunity to set his house in order so that all aspects relevant to such order could be properly dealt with.


  1. On the question of costs it seems to me that one must simply take a practical course. The Council was always entitled to an interdict. The further relief which it obtained in the court a quo would seem to me to have simply followed as a consequence of it succeeding in that regard. If the appellant is eventually successful in obtaining a favourable solution in relation to the effect of the Maseru Development Plan and the discretionary remedy of a demolition order he will in the ordinary course be entitled to the costs of those proceedings. These costs may then be left for determination in such proceedings but in as much as (even if it be only by way of the concession made by counsel) no relief under those heads has been finally obtained by appellant no qualification of any award of costs to the Council in these proceedings need by made.


The order which I make is the following:-


I. The interdict granted in paragraph 1.1 (as appropriately amended) of the court a quos order is confirmed but it is to operate as an interim order subject paragraphs 2 and 3 hereof


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For good orders sake it must be noted that para 1.1 reads as follows;


-"Respondent, (Appellant before us) his contractors, architects, servants and employees be and are hereby interdicted and restrained from proceeding with any development and building operations on site Nol2291-118 Lower Thetsane, Maseru Urban Area."


  1. The orders made in paragraph 1.2 and 1.3 of the court a quo's order are set aside. The appellant (before us) is given leave to institute appropriate proceedings (if so advised) to:


set aside the letter of 22 December 2003 revoking the Council's earlier grant of permission to erect the structure on plot 12291-118 Lower Thetsane Maseru Urban Area as depicted and described in the appellants existing plans including (if so advised) proceedings to determine whether such plans contravene the development plan promulgated in Government Notice 2 of 1994.


  1. Any proceedings such as are authorized by paragraph 2 hereof, are to be brought within 30 days of this order. If not so brought the interdict granted in terms of the paragraph 1 hereof is to become a permanent interdict. In this event the Respondents will be entitled to take any such proper steps as they may be advised to compel the demolition of the existing structures of the said site whether in whole or in part by the grant of a demolition order made in accordance with the provisions of the Building Control Act.


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  1. The appellant is to pay the costs of this appeal. Dated at Maseru this 22nd day of October 2004.


PLEWMAN, JA


I agree


STEYN, P


I agree


MELUNSKY, JA


For Appellant : Mr Phoofolo

For lst Respondent: Mrs Lethola