Acting Judge Kabelo Lebotse has slammed the Land Tribunal for failing to apply its mind objectively in a case in which business woman and fashion designer Ineeleng Kavindama was challenging the decision of the Gaborone City Council (GCC) for modification of her three storey building in block 8, Gaborone. She had applied for planning permission for regularisation of a three storey residential house and a waiver on setbacks and use of level plus 7000 roof top as rest area for her house.
The GCC rejected the application because the building encroaches onto the side and front setbacks. Lebotse observed that Section 28 of the Town and Country Planning Act gives City Council a large margin of discretion to grant waivers for violations including those emanating from instances where there was no planning permission, Where there is a violation or instances of non compliance, the judge said, that violation and non-compliance is just but one factor to be taken into account in considering whether or not to grant a waiver. “It would be wrong to give it more weight than other considerations as seems to have been the case in the instance case,” the judge said.
Kavindama’s troubles started after she had submitted a house plan to the Gaborone City Council (GCC) for the construction of a 2 story building. The plan was approved. She then proceeded to build a 3 instead of a 2 story building on the plot. She then submitted a modified plan to the GCC for consideration for approval. The GCC considered the application on the 3rd of June 2014 and rejected it on the basis that the building encroached on the side and front setbacks. She then appealed this decision of the GCC to the Land Tribunal which upheld the decision of the GCC.
Then Kavindama mounted an appeal. Through her attorney Unoda Mack, she argued that the issue for determination before the Land Tribunal was whether the infringement could be condoned and waiver granted under the Town and country Planning Act. She further argued that the Tribunal’s decision and finding that front and back setbacks could not be waived run contrary to section 28 of the Town and Country Planning Act which gives the planning authority a large margin of discretion in matters of violation of the Act and the Development Control Code. GCC through its attorney Gosego Lekgowe insisted that even if the High Court were to decide that the Tribunal was wrong in finding and holding that the front and back setbacks could not be waived, the Tribunal nonetheless comprehensibly considered Kavindama’s case and gave due weight to all factors relevant in the case.
He added that Kavindama had failed to make a case for a waiver before the Physical Planning Committee and the Tribunal. Lekgowe argued that Section 28 should be read as only applying to a situation where a person built on land before applying for permission. Lebotse set aside the judgment of the Land Tribunal and remitted the matter to the Land Tribunal for consideration.
