Court name
High Court of eSwatini
Case number
Civil Case 1670 of 2003

Dlamini v Manzini City Council and Another (Civil Case 1670 of 2003) [2003] SZHC 107 (20 November 2003);

Law report citations
Media neutral citation
[2003] SZHC 107
Coram
Maphalala, J









1


THE
HIGH COURT OF SWAZILAND


EDWARD
AUSTIN MAPHUMZANE DLAMINI


Applicant


And


MANZINI
CITY COUNCIL


1st
Respondent


SWAZILAND
GOVERNMENT


2nd
Respondent


Civil
case No. 1670/2003


Coram S.B.
MAPHALALA - J


For
the Applicant MR. DUNSEITH


For
the Respondents S.M. KUBHEKA


JUDGMENT


(20/11/2003)


Serving
before court is an application directing and ordering the 1st
Respondent to process and consider the Applicant's application for a
building permit (reference no. 30/2003) dated 7th March, 2003 in the
normal manner and to determine such application within 14 days and
costs.


2


The
founding affidavit of the Applicant is filed in support of the
application. Various annexures form part of the Applicant's founding
affidavit from annexure "A" to "G".


The
1st Respondent opposes the application and the answering affidavit of
one

Churchill
Fakudze its Executive Officer is filed thereto.


The
brief facts which give rise to this dispute are that the Applicant
has paid and purchased a property from the Government being Lot No.
1253, Extension 12, Manzihi Town, Manzini District. The terms of the
agreement of sale (annexure "A") is subject to the Manzini
Township Extension Regulations. In terms of paragraphs 6 (a) of the
Regulations, no Crown Grant shall be issued to the purchaser unless:


7.1. The
purchaser has paid and/or secured the purchase price and all costs of
transfer;


7.2. The
purchaser has lodged with the Ministry of Housing and Urban
Development plans and specifications of building which he proposes to
erect

on
the property and the Ministry has approved the said plans and
specifications.


It
is common cause that the building plans and specifications are to be
lodged with the 1st Respondent, the Manzini City Council, for
approval, together with an application for a building permit.


The
Applicant lodged his plans and application on the 7th March 2003, but
the lst Respondent has refused to consider such plans and application
"following a directive from the Principal Secretary of the
Ministry of Housing and Urban Development that Council should not
process your building plan pending the finalization of the land
transfer process" (per annexure "D" being a letter
from the Acting Town Clerk of the 1st Respondent to Edward and Bessie
Investments dated the 8th May 2003).


The
Applicant contends that the alleged directive from the Government is
illegal and constitutes a breach of contract, particularly since
lodgement and approval of building


3


plans
is a condition precedent to the transfer of the property into the
name of the Applicant.

When
the matter came before me Mr. Dunseith appeared for the Applicant and
there was no appearance for the 1st Respondent despite the fact that
the matter was set down for hearing in the contested roll of the 26th
September 2003. The 1st Respondent through its attorneys S.M. Kubheka
and Associates had received notification on the 17th September 2003.
In view of the aforegoing I allowed Mr. Dunseith to proceed in this
matter.


The
1st Respondent defence is found in paragraphs 4 (ad paragraph 8 and
9) and reads in extenso as follows:


"AD
PARAGRAPH 8 AND 9.


Contents
hereof are not denied, but 1st Respondent submits that, for this
Honourable Court to grasp this matter, it begs to give a brief
background to the same.


The
fact of the matter is that Applicant purchased the land from
Government. Later it was discovered that the land allocated to
Applicant had Government institutional housing for the Fire and
Emergency Services. By this time Applicant had only paid a quarter of
the purchase price and the Agreement of Sale signed. The 1st
Respondent informed the Ministry on the situation of the plot and a
number of meetings were initiated with the Applicant to solve this
matter amicably.


In
2002, Applicant brought a bond from Swaziland Building Society as
complete payment of the purchase price. The 1st Respondent refused to
accept the bond, as it was aware of the on-going negotiations in the
matter and the Ministry also advised against accepting the bond in
this circumstance. Applicant also instructed his lawyers to have the
Crown grant issued in this regard.


On
seeing that the bond was not being accepted, Applicant circumvented
the negotiations and went and paid cash in the lst Respondent's Rates
Hall the balance for the property. This was in bad faith as Applicant
was aware of the negotiations and problems surrounding the property.
The 1st Respondent's Rates Hall was not made aware not to receive
Applicant's payment. On discovery of this development, the Ministry
was accordingly informed. Later a meeting with the Applicant was held
at the Ministry to try and resolve this impasse and nothing was
finalised. Applicant then submitted building for the plot and as 1st
Respondent was aware of the status then requested the Ministry's
advice on the matter.


4


The
Ministry advised that the lat Respondent could not process the
applications before the finalisation of the land transfer. 1ST
Respondent therefore did not consider the plans for approval on those
grounds and held the matter in abeyance. 1st Respondent will process
and approve plans as soon as the property matter is finalized and as
an agency of the Ministry in the land matter. 1st Respondent has to
rely on their advice.


The
bone of contention in the matter is between Applicant and the
Ministry and Applicant has to sort the land transfer matter with the
Ministry after which 1st Respondent will process the building plans.


In
the premise, we submit that, metaphorically speaking, the Applicant
is putting the cart before the horse in that he seeks to have the
building plans and specification considered for approval when the
dispute involving the land he seeks to build on is sorted out. It is
lst Respondent's submission that to approve the said plans before the
Applicant and the 2nd Respondent resolve the land dispute would not
be proper because currently the property has not been transferred to
the Applicant and the 2nd Respondent may exercise its right to cancel
the agreement of sale".


Having
considered the issues in this case in toto, it is my considered view
that the 1st Respondent has no right in law to refuse to fulfil its
statutory duty, and is in fact obliged in terms of Section 12 of the
Building Act No. 34/1968 to either issue the permit or refuse the
application within 6 weeks from the date the application was lodged.
Approval of a plans or an application for a permit conveys no title
to land or to any terms in a lease or licence. (per Section 12 (3) of
the Building Act).


The
relevant Section reads as follows:


"Issue
of permit.


12.
(1) The local authority shall either issue a permit or refuse the
application therefore within six weeks from the date the application
is received by it.


(2) The
local authority shall issue a permit:


a) in
the case of a permit for the construction of a building, it it is
satisfied that the operations involved will be conducted in
accordance with this Act and that nothing in any plan, specification
or other information submitted with the application shows that the
building, when constructed, will fail to conform with this Act; or,


b) in
the case of a permit for demolition, it it is satisfied that the
operations involved will be conducted in accordance with this Act.


(3) Approval
of a drawing or application for a permit conveys no title to land or
to any term in a lease or licence ..."


5


I
agree with Mr. Dunseith that if the 2nd Respondent has any basis in
law to cancel the sale agreement and/or interdict the Applicant from
exercising his right in terms of the agreement, it should come to
court. The 2nd Respondent is not entitled to obstruct the Applicant
through the agency of the 1st Respondent. It is also noteworthy that
the 2nd Respondent has not opposed this

application.


In
the result the application is granted in terms of prayers a) and b)
of the notice of application.


S.B.
MAPHALALA


JUDGE