1
REPORTABLE
CASE NO: SA 58/2011
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
THE VILLAGE HOTEL (PTY) LTD / AppellantAnd
CHAIRPERSON OF THE COUNCIL FOR THE MUNICIPALITY OF SWAKOPMUND / First Respondent
COUNCIL OF THE MUNICIPALITY OF SWAKOPMUND / Second Respondent
BEACH LODGE CC / Third Respondent
MINISTER OF REGIONAL AND LOCAL GOVERNMENT, HOUSING AND RURAL DEVELOPMENT / Fourth Respondent
Neutral Citation:The Village Hotel v Council for the Municipality of Swakopmund (SA 58/2011) [2015] NASC (18 March 2015)
Coram:SHIVUTE CJ, CHOMBA AJA and MTAMBANENGWE AJA
Heard:21October 2013
Delivered:18 March 2015
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APPEAL JUDGMENT
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MTAMBANENGWE AJA (SHIVUTE CJ and CHOMBA AJA concurring):
[1]This is an appeal from a decision of the High Court dismissing an application made by the appellant for an order:
‘1.Calling upon respondents – in terms of rule 53 – to show cause why –
1.1The decision taken by the second respondent (“the Council”) on or about 28 February 2008 and conveyed to applicant on or about 13 March 2008 and in the following terms:
“(a)That the Council concluded that the height relaxation of Erf 109, Vogelstrand, from 8 to 10 metres will have no material impact on the development of Erf 66, Vogelstrand;
(b)That the height relaxation from 8 to 10 metres on Erf 109, Vogelstrand, granted by the relevant municipal official on 25 September 2007 be ratified with retrospective effect (the decision).”
should not be declared
1.1.1in conflict with the Constitution;
1.1.2ultra vires;
and accordingly null and void.
1.2Alternatively that the decision should not be reviewed and set aside in terms of rule 53(1)(b);
2.That third respondent be interdicted and restrained from operating a restaurant on Erf 109, Vogelstrand, Swakopmund (Erf 109).
3.That third respondent be interdicted and restrained from operating a residential guesthouse or any other establishment onErf 109 of which the number of bedrooms available for guests, exceeds 9 (nine) bedrooms.
4.Directing third respondent to comply with the building lines requirements as set out in clause 5A2.4 of the Swakopmund Town Planning Amendment Scheme No. 12 of Swakopmund (the Scheme) and in respect of the building situate on Erf 109 and to the following extent:
4.1That the first storey thereof (being the storey immediately above the ground storey), shall be 5 (five) metres away from any rear and side boundary of Erf 109;
4.2That the second storey therefore shall be 7 (seven) metres from any rear and side boundary of Erf 109.
5.Ordering first, second and third respondents to pay the costs of this application jointly and severally, the one paying the other to be absolved.
6.Costs against fourth respondent only in the event of him opposing this application.
7.Further or alternative relief.’
The background and common cause facts
[2]The appellant (Village Hotel (Pty) Ltd) and third respondent (Beach Lodge CC) own adjacent properties in Swakopmund, namely Erf 66 and Erf 109 respectively. Erf 66 is a huge property of approximately four hectares zoned 'General Residential 1'under the Swakopmund Town Planning Amendment Scheme No. 12 (the Scheme) with a density of 1:100. It is presently vacant although the appellant had obtained consent from the Council of the Municipality of Swakopmund (second respondent) (the Council) to erect a boutique hotel thereon. It has a seafront on its western side. Erf 109 is situated on the northern side of Erf 66. It also has a seafront on its western border and is zoned ‘Single Residential’ under the Scheme. Third respondent currently operates a guest house called Beach Lodge and a restaurant called The Wreck that has recently been erected on the second storey.
[3]The main dispute between the appellant and the third respondent concerns permission purportedly granted to third respondent by an official of second respondent to exceed the height restriction pertaining to Erf 109 from 8 to 10 metres. The appellant complains that this height relaxation impairs the sea view to the north end of the boutique hotel and certain residential units it intends to develop on Erf 66.
[4]In its founding affidavit sworn to by its managing director, Ms Cornelia Lewies, appellant states that the developments it intends to make on a portion of Erf 66 were initially estimated to cost N$58 million.For this purpose, it has already submitted plans to second respondent depicting the intended development and had already obtained second respondent’s consent for this plan.It has already spent in excess of N$1 million in respect of the planning and design of the entire project. It states further that this process has been brought to a halt ‘due to the transgression by third respondent regarding the use of Erf 109’.
[5]It is also common cause that the two adjacent erven are separated by a street and that, in terms of its zoning, Erf 109 may primarily only be used for the purpose of a dwelling house but may, with second respondent’s consent, be used as residential guest house. In terms of s 13 of clause 5 of the Scheme, a licenced hotel is a consent use under the ‘General Residential 1’ zone and in terms of a previous scheme, the Swakopmund Town Planning Amendment Scheme No 7, this was also the position.
[6]In the argument addressed to us on behalf of the appellant, both in the written heads of argument and orally, the main ground of attack in relation to second respondent’s decision of 28 February 2008 is that it was not competent for second respondent to ratify the decision of its official to grant the height relaxation on Erf 109. This refers to the application by third respondent for such relaxation made and granted on 23 July 2007. Counsel cited a number of decided cases to support this submission. These cases need not be mentioned here because second respondent conceded that the grant was illegal and the court a quo later came to the same conclusion. The argument on behalf of second respondent was, however, that what second respondent did on 28 February 2008 was a consideration de novo of the issue of height relaxation. I, therefore, turn to consider that argument (which the court a quo accepted).
[7]Breach of provisions of various statutory enactments formed the basis of appellant’s challenge to second respondent’s action. These include:
1.The Swakopmund Town Planning Amendment Scheme which, clause 5A2.3 thereof provides that no structure on Erf 109 in terms of its zoning shall exceed a height of 8 metres.However, it contains a proviso that ‘the Council may relax the maximum height to 10 metres if it is satisfied that no interference with the amenities of the neighbourhood, existing or as contemplated by the Scheme, will result';
2.The Swakopmund Town Planning Amendment Scheme No. 7;
3.The Town Planning Ordinance 1954 (Ordinance 18 of 1954) which in terms of s 48 thereof a contravention of its provisions constitutes a criminal offence;
4.The Local Authorities Act No. 23 of 1992 which in s 14(2) provides in peremptory terms:
‘(2)(a)Every meeting of a local authority council shall be open to the public, except on any matter relating to –
(i)the appointment, promotion, conditions of employment and discipline of any particular officer or employee of a local authority council;
(ii)any offer to be made by the local authority council by way of tender or otherwise for the purchase of any property;
(iii)the institution of any legal proceedings by, or opposition of any legal proceedings instituted against, a local authority council.
unless the local authority council by a majority of at least two-thirds of its members present at the meeting in question determines such meeting to be so open.’
5.Articles 12 and 18 of the Constitution which respectively provide:
‘12(1)(a)In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law . . . .
18.Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal.’
I shall examine appellant’s complaints to determine their validity or otherwise, and to see whether or not the court a quo was correct in dismissing all of them.
[8]In dismissing the appellant’s complaints, the learned judge a quo referred to a number of incidents that had taken place since the unauthorised granting of the height relaxation on Erf 109 by second respondent’s official, a Mr Hülsmann: Town Engineering Services. These incidents are listed in para 23 of his judgment;they relate to events that took place from 16 November 2007 to 28 February 2008 when the second respondent held a meeting in camera and accepted a recommendation of its Management Committee by taking the resolution which is the subject matter of the first prayer in the notice of motion in this matter.
[9]The resolution states:
‘(a)That Council concludes that the height relaxation on Erf 109, Vogelstrand, from 8 to 10 metres will have no material impact on the development of Erf 66, Vogelstrand;
(b)That the height relaxation from 8 to 10 metres on Erf 109, Vogelstrand, granted by the relevant Municipal Official on 25 September 2007 be ratified with retrospective effect.’
[10]I mention in passing that second respondent’s resolution is couched in exactly the same terms as the Management Committee’s recommendation, and that on 11 October 2007 the Management Committee had made the same recommendation to Council.
[11]Of the incidents the court a quo mentioned in para 23 of the judgment, the most significant event is the following:
‘On 12 November 2007 the third respondent (was) informed by the municipality in two letters that the building plans have been erroneously approved and called for new plans (sic), as well as that it has been noted in the first court application that the third respondent operates a bed and breakfast facility contrary to the Council’s accommodation establishment policy.’
[12]It is necessary to quote the two letters verbatim as they will be referred to further in another context, later in this judgment.They are produced as annexures "2" and "8"to appellant’s founding affidavit. Annexure "2" reads as follows:
‘Dear Sir
BUILDING PLANS – ERF 109, VOGELSTRAND
Your building plans, with building plan No. 360/2007 and as approved on 25 September 2007 bear reference.
You are hereby notified that the above building plans have been erroneously approved by this office due to the following:
- The maximum building height of 10 m has been exceeded due to architectural features.
You are hereby requested to submit within three (3) weeks from date of this letter revised building plans for approval which ensure that all structures and buildings (including Architectural Features) remain below the 10 m building height.
Please ensure that no construction work exceeds the height of 10 metres and that no existing structure/building (including Architectural Features) exceeds the 10 m building height.
Yours faithfully
FW Holtzhausen
GENERAL MANAGER: ENGINEERING SERVICES’
Annexure "8" reads as follows:
‘Dear Sir
BED AND BREAKFAST OPERATIONS – ERF 109, VOGELSTRAND
From recent papers filed with the High Court of Namibia it has come to our attention that the Bed and Breakfast facility on Erf 109 Vogelstrand is not operated in terms of Council’s Accommodation Establishment Policy.
We hereby request you to ensure that it is operated in line with Council’s Accommodation Establishment Policy as quoted below:
- “RESIDENTIAL GUEST HOUSE” means all pensions, guest houses, bed and breakfast and backpackers establishments operating from private dwellings with a maximum of nine bedrooms available for not more than 20 tourists, and where the owner/manager permanently resides in the house.
Until the statutory procedures in terms of the rezoning to Special as approved by Council on 28 June 2007 have been completed the premises may not be operated in contradiction with the above.
Please take note that your premises will be inspected in due course to verify whether the above criteria are met.
Should it be found that one or more of the requirements are not met, the appropriate action will be initiated in terms of Regulations 28 and 48 of the Town Planning Ordinance 18 of 1954.
Yours faithfully
FW Holtzhausen
GENERAL MANAGER: ENGINEERING SERVICES’
Suffice it to say that several other letters were written by or on behalf of second respondent, all on the issue of height relaxation granted on Erf 109, and all reflecting that the question of whether to ratify the unlawful grant of height relaxation on Erf 109 by second respondent’s official was and remained alive issue until the events of February 2008.
[13]The events of February 2008 started with an invitation to both appellant and third respondent on 13 February 2008. The invitation stated, inter alia:
‘. . . that an inspection of Erf 66 and Erf 109, Vogelstrand will be carried out by the members of the Management Committee of the Swakopmund Municipality on 21 February 2008 at 18h00. The purpose of the said inspection is to enable the said committee members to acquaint themselves with the circumstances prevailing on the two properties, before the matter of the height relaxation will be considered by the said committee at a meeting that is scheduled to take place immediately after the inspection, at the Council’s chambers.’
The parties were further advised, inter alia, that they could attend the meeting and would be allowed to make oral representations to the Management Committee to supplement any written submissions already made before the Management Committee decided on a recommendation on the matter to the Council.
[14]It is not in dispute that only Erf 66 was inspected on 21 February 2008 despite the intimation in the letter inviting the partiesthat both properties would be inspected.Despite appellant’s request during the meeting to haveErf 109 inspected, the request was denied. Yet in para 3.21 of the opposing affidavit, Mr Demasius, Chief Executive Officer of the Swakopmund Municipality, says:
‘3.21.1The whole purpose of the meeting and for the invitation of 13 February 2008 to attend the meeting was, to the knowledge of applicant’s representatives, for second respondent’s Management Committee to reconsider the height relaxation from 8 to 10 metres on Erf 109, since second respondent was advised that it should reconsider the height relaxation.
3.21.2It was not necessary for purposes of considering the height issue, to “inspect Erf 109”. Applicant does not state for what purposes it wanted to inspect Erf 109.’
The obvious contradiction in all this seems to escape his notice.
[15]Prior to the Management Committee meeting, appellant’s representatives asked Mr Demasius if they could inspect the latest building plans submitted in respect of Erf 109. They apparently needed these in preparation for the inspection. There is a dispute as to what actually transpired between those representatives and Mr Demasius. What transpired at the meeting itself was subject to much criticism by the appellant, who characterised the whole process, including Council’s subsequent decision, as a ruse, and foregone conclusion.
[16]According to appellant, the factors leading to that characterisation appear to be the following:
(a)that despite the stated purpose of the meeting 'to enable the committee members to acquaint themselves with the circumstances prevailing on the two properties, before the matter of the height relaxation will be considered by the committee at its meeting scheduled to take place immediately after the inspection' only Erf 66 was inspected; Mr Demasius does not say by whom and why it was decided that it was not necessary to inspect Erf 109;
(b)that the Chairman of the Committee refused to answer the following questions by appellant’s lawyers:
'1.Is it an admitted fact that the previous recommendation made with regards to the height relaxation was null and void is that why we are sitting here today?
2.Is it also an admitted fact that Council never approved the relaxation as per Town Planning Scheme?
3.Can we accept that the building structure which is and as referred to as an existing structure that up to this stage we did not know what the height is and have to get back to that point but is it so that the building was erected and constructed without proper approval of the plans by Council?
4.And furthermore is it so; let me ask putting it this way what is to be ratified today?';
(c)that the appellant’s legal representatives were not afforded the opportunity to inspect the latest building plans submitted in respect of Erf 109;
(d)that the management committee used a photo plan based on the current plan submitted in respect of Erf 66, by appellant and was not granted a reasonable opportunity to consult its experts on the photo plan prior to the meeting and to provide another perspective or representation reflecting Erf 66’s position in relation thereto particularly in respect of further amenities contemplated in Erf 66;
(e)that appellant was never granted the opportunity to state its case to second respondent itself before the latter took its decision of 28 February 2008;
(f)that the chairperson of the committee approached the matter on the wrong basis of requiring the appellant to provide reasons why the existing (and illegal) structure on Erf 109 should not be condoned, instead of requiring the third respondent, the party seeking the height relaxation to persuade the committee to grant the relaxation, and
(g)that in an affidavit sworn to by Demasius on 21 February 2008 in connection with the previous application (referred to in Annexure “3” of the founding affidavit) he had already concluded that the structures on Erf 109 did not interfere with any amenities on Erf 66 as contemplated by the Scheme.
[17]Some of the factors listed above are contested in the opposing affidavit filed by Mr Demasius on behalf of the first and second respondents. In my opinion it is, however, not necessary to seek to resolve such disputes of fact in this judgment. In his said affidavit Mr Demasius defends the procedure at the Management Committee meeting on 21 February 2008. As regards the questions asked by appellant, he purports to speak for Mr Rooi, the Chairperson of the Management Committee, when in para 3.25.8 thereof he states:
‘It is evident that Mr Rooi decided not to be drawn into the fray since these were legal questions. Mr Rooi clearly indicated that the questions pertained to issues that must be resolved by the Court. Mr Rooi made it clear what the purpose of the meeting was.’
The minutes of the proceedings record in part that:
‘The Lewies Family Trust represented by their lawyer posed questions to the Chairperson of the Management. Due to the pending legal matter Council wished not to respond to these questions and the Chairperson once again reiterated the purpose of the meeting.’