THE Erongo Regional Council suffered another court defeat in an almost decade-long dispute with the residents of the sleepy holiday settlement of Wlotzkasbaken north of Swakopmund this week.
In a judgement delivered in the Supreme Court on Tuesday, the country’s highest court dismissed an appeal that the Erongo Regional Council, the Minister of Regional and Local Government and the Chairperson of the Townships Board had lodged in an attempt to overturn a High Court decision that went against them and in favour of the Wlotzkasbaken Home Owners Association and one of its members, architect Kerry McNamara, in December 2007.As in the judgement that High Court Judge Collins Parker delivered near the end of 2007, the Supreme Court also ordered the Regional Council, the Minister and the Townships Board Chairperson to pay the legal costs of the Residents Association and McNamara in the case.The effect of the Supreme Court’s judgement – as was the effect of Judge Parker’s – is that the Regional Council will have no choice but to adhere to previous settlement agreements with the Wlotzkasbaken Home Owners Association that were made orders of the High Court in November 2000 and near the end of November 2006.In terms of the first of those agreements, the Association’s members were given the right to buy the plots of land on which they have houses at Wlotzkasbaken once the settlement is proclaimed a township.In the second agreement, the Association agreed to withdraw a case against the Regional Council that was pending in the High Court at that stage. It was also agreed that after the case had been withdrawn, all erven at Wlotzkasbaken, which would be proclaimed a township, would be sold.A crucial additional part of the second agreement was that the 110 people now leasing plots of land at Wlotzkasbaken would have a pre-emptive right to buy the plots on which they currently have houses.Less than eight months after that settlement was made a court order, though, the Erongo Regional Council had an advertisement placed in a newspaper in which it invited applications from people who wanted to lease erven at Wlotzkasbaken.This prompted the Association and McNamara to again turn to the High Court to have the previous settlement and court orders enforced.According to the agreement dating from 2000, the people leasing plots of land at Wlotzkasbaken would have the first right to buy the land they are occupying only if the Regional Council decided to sell the land, Acting Judge of Appeal Johan Strydom recounted in the Supreme Court’s judgement this week.Under the agreement of 2006, though, it was agreed that all erven at Wlotzkasbaken would be sold after the Association’s case against the Regional Council had been withdrawn.Some 74 years after a holiday settlement started springing up at Wlotzkasbaken, situated about 35 kilometres north of Swakopmund, in 1 935, it has still not been proclaimed a township. A plan in which it would become a township consisting of 258 erven – it is currently divided into 110 erven – was however approved by the Townships Board in 1999.The November 2006 agreement imposed a duty on the Association to withdraw its case, while the Regional Council then had the duty to sell all the erven at Wlotzkasbaken, Judge Strydom stated in the appeal judgement.The Association has performed its duty under the agreement, and it is now the Regional Council’s duty to perform their part in terms of the agreement, he stated.Judge Strydom remarked: ‘It was never, in my opinion, contemplated by the parties, when the 2006 agreement was concluded, that the sites, in the to be proclaimed township, would be leased. The obligation undertaken by the (Regional Council) in terms of the 2006 agreement was to sell all erven. This meant, in this particular instance, that they would take all necessary steps to proclaim the township in order to fulfil their obligation to sell the erven and that they would do so within a reasonable time. The invitation to the public to lease the said erven was clearly not such a step and was in direct conflict with what (the Regional Council) had undertaken to do.’The Regional Council’s intention to offer erven at Wlotzkasbaken for lease ‘was a breach of the right of the (Association and McNamara) to have the erven sold,’ Judge Strydom found.He stated: ‘The decision of the (Regional Council) to lease the sites is in conflict with their undertaking to sell all erven upon withdrawal of the application against them. The conduct of the (Regional Council) was such that it would lead a reasonable person to the conclusion that it evinced an intention not to fulfil its part of the contract.’The Regional Council was represented by South African senior counsel Ishmael Semenya and Gerson Hinda, instructed by Shikongo Law Chambers, in the appeal. Dave Smuts, SC, and Reinhard Tötemeyer, instructed by lawyer Henner Diekmann, represented the Association and McNamara.
