Residents win battle of Wlotzkas

RESIDENTS of the rustic seaside settlement of Wlotzkasbaken have notched up another victory in their battle to put the brakes on plans by the Erongo Regional Council and Ministry of Regional and Local Government to expand and develop their holiday hamlet – and inevitably change its character – regardless of their own wishes on the matter.

Government plans to expand Wlotzkasbaken and allocate additional plots of land for new houses to be built at the sleepy settlement, some 35 kilometres north of Swakopmund, have been afoot for years. These plans have since 2000 had the Erongo Regional Council, the Minister of Regional and Local Government and Housing and the Wlotzkasbaken Home Owners’ Association square off in court repeatedly over the future of Wlotzkasbaken.On Wednesday last week, the Wlotzkasbaken Home Owners’ Association won the latest of these cases, with Judge Collins Parker giving a judgement in the High Court in which the Regional Council, the Minister of Regional and Local Government and Housing, and the Chairperson of the Townships Board were ordered not to continue with a plan to lease new erven at Wlotzkasbaken.The Regional Council, Minister and Townships Board Chairperson were ordered to pay the legal costs of the Wlotzkasbaken Home Owners’ Association and one of its members, architect Kerry McNamara, who had lodged an urgent application in the High Court in connection with the intention to offer new erven at Wlotzkasbaken to be leased.In 2000 and again in 2006 disagreements about the official plans for Wlotzkasbaken were taken to the High Court.Each time the case at hand was settled and the settlement was made an order of the court.The Regional Council must now adhere to the terms of that last settlement, which was made a court order on November 20 last year, Judge Parker ruled in his judgement.In the November 2006 settlement, the Wlotzkasbaken Home Owners’ Association agreed to support the establishment of a township for Wlotzkasbaken.It was however also agreed that all erven at Wlotzkasbaken would be sold after the application that the Association had lodged in court at that stage had been withdrawn.The Association also agreed to accept a proposed layout of 258 erven at Wlotzkasbaken – but on condition that the Association and its members, who occupy 10 sites at Wlotzkasbaken, would have the first option to buy the erven on which their homes have already been built.Lease agreements related to home owners who have set up houses at Wlotzkasbaken would continue to be renewed on a yearly basis until the owners could exercise their right to buy the erven already occupied by them, it was also agreed.On July 20, though, an advertisement in which the Erongo Regional Council invited applications for the lease of erven at Wlotzkasbaken was published in one of Namibia’s daily newspapers.By placing that advertisement, the Regional Council “crossed the Rubicon in its intention to breach the 2006 Agreement and to disobey the Court Order of 20 November 2006”, Judge Parker remarked.He noted that in the settlement agreement and court order of November 2006 it was agreed “categorically and unequivocally” that all the erven at Wlotzkasbaken would be sold after the Association had withdrawn the case it then had going against the Regional Council and Minister.The Judge stated that he had to take into account that the Regional Council had failed to get Wlotzkasbaken proclaimed as a township within a reasonable time in order to implement the provision in the 2006 settlement agreement for the erven to be sold after a township had been proclaimed.According to the Regional Council the township proclamation process should take between eight and 12 months to conclude, he noted.Yet eight months after the conclusion of the 2006 agreement, the Regional Council had the “telltale advert” published, the Judge also noted.He said he accepted that the Association had as a result come to a conclusion that the Regional Council does not intend to fulfil its part of the agreement.The Regional Council however “has no legal leg to stand on to refuse to be bound by the 2006 Agreement and to act in a manner that frustrates the implementation of the 2006 Agreement in a reasonable time,” Judge Parker stated.What the Regional Council had now been trying to do was an attempt to undermine the agreement, the Judge added.”I do not think this court should lend the (Regional Council) a hand in doing what is wrong and inequitable; if it did that, the court would be stultifying and subverting the rule of law, which is firmly embedded in Namibia’s constitutionalism.”The Regional Council cannot run away from its obligation to ensure Wlotzkasbaken’s proclamation as a township and to sell all the 258 erven in the planned township within a reasonable time, and the Regional Council is not entitled to in the meantime lease erven in that that part of Wlotzkasbaken over which the Association’s members do not have rights, Judge Parker ruled.Senior counsel Dave Smuts and Reinhard Toetemeyer, instructed by Diekmann & Associates, represented the Association and McNamara.Herman Oosthuizen and Gerson Hinda, instructed by Shikongo Law Chambers, appeared for the Council, while the Minister and Townships Board Chairperson were represented by Government Attorney Chipo Machaka.These plans have since 2000 had the Erongo Regional Council, the Minister of Regional and Local Government and Housing and the Wlotzkasbaken Home Owners’ Association square off in court repeatedly over the future of Wlotzkasbaken.On Wednesday last week, the Wlotzkasbaken Home Owners’ Association won the latest of these cases, with Judge Collins Parker giving a judgement in the High Court in which the Regional Council, the Minister of Regional and Local Government and Housing, and the Chairperson of the Townships Board were ordered not to continue with a plan to lease new erven at Wlotzkasbaken.The Regional Council, Minister and Townships Board Chairperson were ordered to pay the legal costs of the Wlotzkasbaken Home Owners’ Association and one of its members, architect Kerry McNamara, who had lodged an urgent application in the High Court in connection with the intention to offer new erven at Wlotzkasbaken to be leased.In 2000 and again in 2006 disagreements about the official plans for Wlotzkasbaken were taken to the High Court.Each time the case at hand was settled and the settlement was made an order of the court.The Regional Council must now adhere to the terms of that last settlement, which was made a court order on November 20 last year, Judge Parker ruled in his judgement.In the November 2006 settlement, the Wlotzkasbaken Home Owners’ Association agreed to support the establishment of a township for Wlotzkasbaken.It was however also agreed that all erven at Wlotzkasbaken would be sold after the application that the Association had lodged in court at that stage had been withdrawn.The Association also agreed to accept a proposed layout of 258 erven at Wlotzkasbaken – but on condition that the Association and its members, who occupy 10 sites at Wlotzkasbaken, would have the first option to buy the erven on which their homes have already been built.Lease agreements related to home owners who have set up houses at Wlotzkasbaken would continue to be renewed on a yearly basis until the owners could exercise their right to buy the erven already occupied by them, it was also agreed.On July 20, though, an advertisement in which the Erongo Regional Council invited applications for the lease of erven at Wlotzkasbaken was published in one of Namibia’s daily newspapers.By placing that advertisement, the Regional Council “crossed the Rubicon in its intention to breach the 2006 Agreement and to disobey the Court Order of 20 November 2006”, Judge Parker remarked.He noted that in the settlement agreement and court order of November 2006 it was agreed “categorically and unequivocally” that all the erven at Wlotzkasbaken would be sold after the Association had withdrawn the case it then had going against the Regional Council and Minister.The Judge stated that he had to take into account that
the Regional Council had failed to get Wlotzkasbaken proclaimed as a township within a reasonable time in order to implement the provision in the 2006 settlement agreement for the erven to be sold after a township had been proclaimed.According to the Regional Council the township proclamation process should take between eight and 12 months to conclude, he noted.Yet eight months after the conclusion of the 2006 agreement, the Regional Council had the “telltale advert” published, the Judge also noted.He said he accepted that the Association had as a result come to a conclusion that the Regional Council does not intend to fulfil its part of the agreement.The Regional Council however “has no legal leg to stand on to refuse to be bound by the 2006 Agreement and to act in a manner that frustrates the implementation of the 2006 Agreement in a reasonable time,” Judge Parker stated.What the Regional Council had now been trying to do was an attempt to undermine the agreement, the Judge added.”I do not think this court should lend the (Regional Council) a hand in doing what is wrong and inequitable; if it did that, the court would be stultifying and subverting the rule of law, which is firmly embedded in Namibia’s constitutionalism.”The Regional Council cannot run away from its obligation to ensure Wlotzkasbaken’s proclamation as a township and to sell all the 258 erven in the planned township within a reasonable time, and the Regional Council is not entitled to in the meantime lease erven in that that part of Wlotzkasbaken over which the Association’s members do not have rights, Judge Parker ruled.Senior counsel Dave Smuts and Reinhard Toetemeyer, instructed by Diekmann & Associates, represented the Association and McNamara.Herman Oosthuizen and Gerson Hinda, instructed by Shikongo Law Chambers, appeared for the Council, while the Minister and Townships Board Chairperson were represented by Government Attorney Chipo Machaka.