IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 3628/2000
In
the matter between :
CITY
COUNCIL OF MANZINI APPLICANT
AND
DALE
INVESTMENTS (PTY) LTD RESPONDENT
CORAM
SHABANGU AJ
FOR
APPLICANT MR B. MAGAGULA
FOR
RESPONDENT MS. VAN DER WALT
26th
August, 2004
The
applicant, the City Council of Manzini seeks in these proceedings, an
order
"1.
That the Respondent is to remove the illegal structures of Erf k.
277 Ngwane Street, Manzini so as to comply with the building plans
approved by the Applicant under minute 36/02 of 1986 and more
particularly to restore the parking bays as indicated therein within
fourteen (14) days or such time as may be set by the court.
Failing
the removal of the structures named above within the time stipulated
by the court that the Deputy Sherrif for Manzini be authorised and
directed to take all such steps as may be necessary to have them
removed.
That
Respondent pays the costs of this application.
Further
and or alternative relief."
2
I
appears to be common cause between the parties that in 1986 and on
the basis of a plan approved by the applicant, the respondent erected
a building on Erfk/277, Ngwane Street, Manzini described by the
applicant in its founding affidavit as the premises. It also appears
to be common cause that the aforementioned plan as approved by the
applicant made provision for fourteen (14) parking bays. The building
erected on the premises was for commercial purposes. It further
appears to be common cause between the parties that on 2nd June, 1999
another plan was lodged by the respondent. In the latter application
the respondent sought approval of plans for extensions which the
respondent sought to effect to the building and premises in
accordance with annexure "TP2" of the applicant's founding
affidavit. This latter application was apparently approved by the
applicant under minute number 102/07 of 1999. The respondent whilst
admitting the above states at paragraph ten of its answering
affidavit that annexure "TP 2" relied upon by the applicant
requires seven, and not fourteen parking bays. Then in paragraph ten
of its founding affidavit the deponent who describes himself as the
Chief Executive Officer of the Applicant states;
"Subsequent
to the approval of the plans, an inspection of the premises revealed
that the fourteen parking bays provided for in the plans for the
original building had been abolished by Respondent who had built
shops in their place. "
The
respondents' response to the abovequoted paragraph ten (10) of the
founding affidavit is contained in paragraph eleven of the
respondents' answering affidavit and reads as follows;
"11,
The Respondent admits that shops were built on a certain area, but
puts the plaintiff to the proof that such area was designated for
parking spaces. As aforestated the applicant has failed to annex a
copy of the plan it purports to rely on, "
Even
though the parties addressed certain points in limine they were both
in agreement at the conclusion of argument that they had also argued
the merits of the application and expect me, in the event the points
of law in limine are not upheld to determine who should succeed on
the merits. The first point of law in limine taken by the respondent
is that "the application is fatally defective in that there is
no allegation to the effect that this... court has jurisdiction to
entertain the matter." Relying on the unreported decision of
this court in civil case number 624/2000, namely the matter of BEN M.
ZWANE V. THE DEPUTY PRIME MINISTER & ANOTHER delivered on 24th
March, 2000, Ms
3
Van
der Walt argued that the founding affidavit must contain an express
allegation that the court has jurisdiction and that in the absence of
such express allegation the court is obliged to dismiss the
application which according to counsel can be said to be fatally
defective. This is a very strange proposition indeed. It appears to
be accepted as trite in a long line of decided cases, and in the
textbooks on our civil practice that facts must be set out which if
proved or from which if undisputed it can be concluded that the court
has the necessary jurisdiction to entertain the proceedings and that
it is neither sufficient nor is it necessary to merely state the
legal conclusion of jurisdiction. A legal conclusion would be a
statement in the party's pleading or affidavit which simple states
that "...the court has jurisdiction to hear the matter...".
On the other hand all the textbook writer's that are quoted by Mr,
Justice Masuku emphasise that what is required is that allegations of
fact indicating that the court has jurisdiction is all that is
required. See BEN M. ZWANE V, THE DEPUTY PRIME MINISTER & ANOTHER
supra at page three to four and the references therein. The ratio or
principle of the decision in the Ben Zwane case referred to above may
be expressed in accordance with the formulation by HARMS in his
"CIVIL PROCEDURE IN THE SUPREME COURT" quoted and relied
upon by Mr. Justice Masuku in the Ben Zwane case which is that;
"In
any summons or founding affidavit, the necessary factual allegations
relating to jurisdiction must be made. It is not sufficient to state
the legal conclusion of jurisdiction. "
See
page 4 of the Ben Zwane judgement.
Earlier
on the learned judge, that is, Mr Justice Masuku quotes from ERASMUS,
SUPERIOR COURT PRACTICE at B-37 to 38 wherein it is stated;
"The
facts must be set out simply, clearly and in chronological sequence,
and without argumentative matter in which are to support the notice
of motion. The statement of facts must contain the following
information:
(i).....
(ii)
the facts indicating the court has jurisdiction."
The
learned judge then went on to conclude
"...in
this case neither factual allegations nor legal conclusions of
jurisdiction have been stated in casu. The allegations must appear in
the affidavit and the court must not be left to deduce that it has
jurisdiction. "
4
It
seems to me that the principle of the decision as quoted and relied
upon by the learned judge in the Ben Zwane case is a principle of our
practice long recognised and known in the cases. If I apply that
principle in the present matter it seems to me that there can be no
doubt that the jurisdiction of this court has been properly pleaded
in the applicants' founding affidavit. I do not need to comment on
whether, with the greatest of respect, the learned judge in the Ben
Zwane case correctly applied this principle. Indeed contrary to what
the learned judge concludes at page four of his judgement it is for
the court to deduce whether it has jurisdiction from the factual
allegations made. It seems to me that the applicants' attorney in the
Ben Zwane case was correct in his submission that "it is
unnecessary to plead conclusions of law but [that] the court can
determine from the facts set out in the founding affidavit and the
relief prayed for that it has jurisdiction to entertain the
application." That proposition is the only one consistent with
the passages quoted and relied upon by the learned judge in the Ben
Zwane and is consistent with all known principles of pleading. After
all the concept of jurisdiction has various references or
connotations. Jurisdiction of the court may relate to (1) the
parties, in other words "jurisdiction over persons", (2)
jurisdiction to grant the particular relief sought in the action or
application, (3) jurisdiction to enter into the hearing of the
subject matter of the proceedings etc. The concern expressed by the
learned judge in the Ben Zwane case to the effect that "it is
not even stated where the applicant resides" was no valid
criticism of the applicants' papers because a party who institutes
proceedings before any court submits thereby to the jurisdiction of
the court regardless of where he or she resides. The fact that a
plaintiff or applicant in proceedings instituted before court has not
disclosed his place of residence should not affect the courts'
jurisdiction to hear the matter. On the other hand the applicants or
plaintiff's papers must show that the court in which the action is
instituted has jurisdiction over the person of the defendant or
respondent which may be shown by an allegation that the respondent or
defendant resides within a specified area located within the court's
jurisdiction.
The
"necessary factual allegations relating to jurisdiction"
referred to by HARMS supra would ordinarily therefore be allegations
relating to the respondent's or defendant's place of residence or
business. This would also include the location of a companies
registered
5
office.
Other allegations relating to jurisdiction would be, where the
plaintiff's or applicant's cause of action is contract, an allegation
that the contract was concluded in Manzini. Once that allegation is
made it is not necessary to include in one's pleading a statement
that "the court has jurisdiction...", Manzini being a place
within the jurisdiction of the court it would amount to a sufficient
allegation relating to jurisdiction to simple allege that the
contract was concluded in Manzini - and that the defendant or
respondent resides in Manzini. Similarly if the cause of action is
delict then the necessary allegations relating to jurisdiction would
have been made if the place of the occurrence of the accident, such
as an allegation that "the defendants motor vehicle collided
with the plaintiff's motor vehicle on Ngwane Street in Manzini",
has been made. The court will be able to deduce that it has
jurisdiction because of the allegation that the place of the accident
is in Manzini which town is within the jurisdiction of the court. It
is for the court to satisfy itself that from the facts pleaded if
those facts are undisputed or are unchallenged the legal conclusion
would follow that the court has jurisdiction. It being for the court
to decide the question whether it has jurisdiction it does not assist
a plaintiff or applicant to simple state in his papers that "...the
court has jurisdiction..." To do so is to state a legal
conclusion or legal proposition as contemplated by the learned
authors relied upon in the Ben Zwane case. It is not very clear in
the Ben Zwane case what essential allegation relating to jurisdiction
was considered to be missing by the learned Judge. However, if
counsel is correct that what the learned Judge considered to be
missing was a statement that "the court has jurisdiction...",
then the courts' decision would have been clearly wrong. Indications
that this is what the learned judge had in mind is the statement
which forms part of his conclusion at page four of the judgement to
the effect that "... the court must not be left to deduce that
it has jurisdiction." As already observed if that is what the
learned judge had in mind he was clearly and obviously wrong in his
application of the principles discussed by the learned authors upon
whom he relied. I am not bound to follow such an approach, which
approach is clearly inconsistent with principle and the formulation
of the principles as discussed in the text relied upon by the learned
judge himself. In the circumstances the first point of law in limine
cannot be upheld and it therefore fails.
6
The
second point of law in limine taken on behalf of the respondent is
that "the application is fatally defective in that it does not
disclose a cause of action. This point is developed in paragraphs 5.1
and 5.2 of the answering affidavit wherein it is formulated as
follows;
"In
paragraph 17 there is a mere bald allegation of illegality concerning
'plans approved by the Applicant."
5.2
There is no allegation to the effect that the applicant, in law or
otherwise, was bound by any such plan or plans, and if so, on what
basis."
It
is difficult to understand the nature of the complaint raised by the
respondent in paragraph 5.1 and 5.2. There is no basis for the
proposition made on behalf of the respondent that there must be an
allegation that "the applicant, in law or otherwise, was bound
by any such plan or plans, and if so on what basis." This
complaint may relate to matters which arise on merits of the
application. The fact of the matter is that the Application brought
by the applicant has as its basis section 10 of the Building act 34
of 1968 which provides for the following;
"Permit
to build, demolish or change use.
(1)
No person shall –
conduct
operations for the construction or demolition of a building; or
change
the use of a building unless there has been obtained from the local
authority a permit for the construction, demolition or change in
use, as the case may be, but nothing in this section applies to any
operations for the alteration of a building which consist solely of
the fitting or a fixture of such kind as may be prescribed by the
Minister for the purposes of this subsection.
Then
the subsection 2 reads
"A
person who performs an act described in subsection l(a) or (b) shall
do so in accordance with the plans approved, and any conditions
contained in the permit issued, by the local authority, unless the
local authority agrees in writing to a variation of the plans or
conditions. "
In
light of the abovequoted section of the Building Act, 34 of 1968 it
is clear that the section obliges any person who either changes the
use of a building or conducts operations for the construction or
demolition of a building, to do so in accordance with plans approved
or any conditions contained, in the permit issued by the local
authority, unless the local authority agrees in writing to a
variation of the plans or conditions. In other words the person
described in Section 10 (1) (a) or (b) of the Building Act is bound
7
as
a matter of statute law to build in accordance to the plans approved
by the local authority, in this case the applicant and in accordance
with any conditions contained in the permit issued by the local
authority allowing the person to build, demolish or change use as the
case may be. This being a statutory requirement there is no need to
plead that the "applicant" or the respondent for that
matter is bound to the plans because whether any person is so bound
is a matter of law. In the circumstances this point must also fail.
Similarly the point taken in paragraph seven of the respondents'
answering affidavit ought to fail on the same basis. The point of law
raised in paragraph six of the answering affidavit appear and were
indeed described by the respondents' council to be based on the false
assumption that the applicants' case is founded on the Manzini
Development Code of 1991, a document which is equated with a Town
Planning Scheme promulgated under the provisions of the Town Planning
Act 45 of 1961. As already observed above the applicants' case is
founded on the Building Act, 34 of 1968. In light of this this last
point must fail also.
Turning
to the merits counsel for the applicant submitted that the
applicants' case was founded on section 10 of the Building Act, 34 of
1968, as already observed herein. In a letter dated 17th May, 2000
the respondent wrote to the applicant in connection with the dispute
that has given rise to the present proceedings and stated its
position as follows in paragraphs seven to twelve thereon;
"7.
The area in which the parking is required is part of the original
structure, which originally had parking spaces in the basement.
8.
However, during the course of time vendors have requested that the
parking (which was never used in any event) be converted to shop
premises as they were in need of same.
9.
We felt that this would be the normal thing to do as these people
were in need of premises and we had an empty garage/parking lot.
10.
We converted the premises into shops by dividing the parking lot into
a number of small closed rooms. This was don in the eighties.
11.
We felt that we had done the honourable thing. However, we were told
by the Council to have the shops converted into parking tots.
8
12.
We submit respectfully that we do not need parking spaces as our
tennants and customers do not use vehicles. Furthermore the type of
clientele we attract is normally the type that is from boarding a bus
or has alighted from same."
The
contents of annexure "TP7" from which the preceding passage
is quoted is admitted by the respondent to be part of the
correspondence which passed between the parties, namely the Manzini
City Council and Dale Investments (pty) Ltd in relation to the
dispute. From this letter it is clear that the respondent did
construct without a permit and a plan approved by the Applicant shops
contrary to the plans approved by the Applicant. The respondent
appears to have embarked on this without either preparing plans for
the shops or seeking approval of the of the applicant as the
responsible local authority. In Annexure "TP2" of the
applicants' founding affidavit is an approved plan reflecting four
shops and seven parking bays. It has been argued on behalf of the
respondent that the relief sought by the applicant which relief is
for an order, which seeks to ensure that the structures on Erf K. 277
be in compliance with building plans approved in 1986, whereas there
has been another plan approved in 1999 cannot be granted. The plans
approved in 1999 reflects that there would be 7 parking bays. It
would in my view be inappropriate to make an order directing that the
structures on the premises be structures which comply specifically
with a plan approved in 1986 when there is in existence another plan
which the applicant approved in 1999 which may have ammended the 1986
plans. A further difficulty for the applicant is that there is no
evidence in its founding affidavit which explains how the ammended
plans relate to those of 1986 and to the structures on the actual
premises. It appears to be fairly clear and indeed to be common cause
from paragraph fourteen and annexure " TP6" of the founding
affidavit that there are structures which the respondent has
constructed without a permit and approved plans, on the premises. It
does not appear to follow however that the situation can be remedied
by requiring the structures on the premises to be in compliance with
plans approved in 1986. The illegal structures cannot be identified
with reference to the 1986 plan said to have been approved by the
applicant under minute 36/02. In granting any kind of relief for the
removal of the illegal structures the level of certainty on the
proper identification and description of the structures to be removed
must leave no room for doubt as to what these structures are and the
parties must not be left in a position wherein they might have to
argue on the identity of the structures to be removed. Regrettably I
cannot assist on the
9
proper
identification of these structures which the applicant wishes to have
removed, in such a way that an order may be granted to the applicant
under the prayer for further and or alternative relief. In the
circumstances I have no alternative but to dismiss the application,
inspite of it being common cause that the respondent has built on its
premises some structures without either a permit or an approved plan
or both. The order I make therefore is to dismiss the application
with costs.
ALEX
S. SHABANGU
ACTING
JUDGE
Nike 