Court name
Supreme Court
Case number
SA 58 of 2011

Village Hotel (Pty) Ltd v Chairperson of the Council for the Municipality of Swakopmund and Others (SA 58 of 2011) [2015] NASC 4 (18 March 2015);

Media neutral citation
[2015] NASC 4
Shivute J


CASE NO: SA 58/2011

DATE: 18 MARCH 2015


In the matter between:









Heard: 21 October 2013

Delivered: 18 March 2015




[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 –

1.1 The 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,

(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

1.1.1 in conflict with the

1.1.2 ultra vires; and accordingly null
and void.

1.2 Alternatively 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 on Erf 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:

4.1 That 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;

4.2 That 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

[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

[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

[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,

(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

[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


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

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


Annexure "8" reads as

‘Dear Sir


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:

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


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 a live 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 parties that both properties would be inspected.
Despite appellant’s request during the meeting to have Erf 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:

‘3.21.1 The 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

3.21.2 It 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

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

(b) that the Chairman of the Committee
refused to answer the following questions by appellant’s

'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

[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.’

If what the minutes reflect and what Mr
Demasius says is all that happened in that regard, it seems to me
there was very little if any appreciation by the Management Committee
of the nature and purpose of the questions posed by the appellant’s
representatives. The questions asked should have been answered having
regard to all the written communications by second respondent talking
about ratifying the invalid grant of height relaxation by second
respondent’s official. These communications started in 2007
when in fact the Management Committee itself had recommended that the
invalid grant should be ratified. Instead the Management Committee
sought, so it would seem, to play a game of hide and seek when it
used the pretext of ‘pending legal matter’ to avoid being
open as to what the meeting was all about. It is interesting to note
that Mr Rooi who swore to an affidavit in confirmation of Mr
Demasius’ assertions on the point avoided any mention of the
reason why he would not answer those questions.

In light of all that had gone on before
the meeting of the Management Committee on 21 February 2008, I come
to the conclusion that appellant’s representatives were quite
justified to refuse to further participate in that meeting; the
appellant was fully justified in regarding that meeting and the
subsequent meeting by second respondent on 28 February 2008 as a ruse
and an endorsement of a foregone conclusion. One must remember that
second respondent had done nothing about third respondent’s
illegal action apart from writing the two warning letters that third
respondent clearly ignored.

[18] If I am correct in my view of what
happened, the conclusion is inescapable that the manner of the
proceedings in the Management Committee on 21 February 2008, its
resultant recommendation to Council and Council’s subsequent
resolution on 28 February 2008 were incomplete disregard of the
requirements of Articles 12 and 18 of the Namibian Constitution.

[19] I am fortified in coming to the
above opinion and conclusion by the following factors.

According to Mr Demasius’
affidavit he attends all meetings of the Council and those of the
Management Committee. He wants the court to believe that he took no
part in the deliberations of the two bodies. That may be so on the
surface. However, the fact that in his advisory capacity he exerts a
lot of influence on the decisions of these bodies cannot be doubted;
that is clearly shown, for example, by the fact that on 21 February
2008 he swore to the opposing affidavit on behalf of first and
second respondents in Case No. A 260/2007. In this document, he
dealt extensively with the issue of height relaxation on Erf 109
among other issues. Therein he expressed some definite views on that
topic. See paras 35.2 to 35.6 where (to give a few of his
conclusions) he stated:

‘35.2 First respondent in any
event denies that the increase of the height of building on Erf 109
from 8 metres to 10 metres will have an adverse effect on the sea
views of guests at the hotel and further flats to be built by

. . .

35.6 It will be argued on behalf of
first respondent that applicant failed altogether in this application
to demonstrate, with reference to building plans and without factual
or theoretical evidence how the increase in the height in the
building on Erf 109 can possibly affect or impede the sea views of
the hotel, flats or other buildings to be erected by the applicant on
Erf 66. Applicant has not alleged that the hotel or flats would
offer unimpeded sea views to the north which will be impeded by the
increase in height in building on Erf 109.’

And after referring to photographs
taken by Council’s Manager of Planning, Mr Gunther Hülsmann,
he stated:

'35.9.5 First respondent concludes that
the increased height of the building on, Erf 109 does not and will
not have any effect on the sea views of persons occupying the
hotel/flats to be erected on Erf 66 be they single or double storey

It should be noted that the conclusions
he pronounced in that paragraph were reached long before the
Management Committee met to carry out the ‘inspection of the
two properties’ and long before it formulated its
recommendation to Council on 21 February 2008.

[20] Appellant submitted that Council’s
decision on 28 February 2008 was ultra vires and a nullity. In his
heads of argument Mr Tötemeyer who appeared for the appellant
submitted that the admitted wrongful grant of the relaxations of the
height on Erf 109 on 23 July 2007 could not lawfully be rectified as
second respondent sought to do. He cited several authorities in
support of the principle that ultra vires and void actions are
incapable of ratification. The principle is discussed in Neugarten
and Others v Standard Bank of South Africa Ltd 1989 (1) SA 797 (A) at
808D-809A. There Kumleben JA refers, inter alia, to Schierhout v
Minister of Justice 1926 AD 99 at 109 where it was stated that such

‘is not only of no effect, but
must be regarded as never having been done.’

(See also Couve and Another v Reddot
International (Pty) Ltd and Others 2004 (6) SA 425 (W) at para
3.2.17; S A I Investments v Van der Schyff NO and Others 1999 (3) SA
340 (N.P.D) at 350A-351A; Mathipa v Vista University and Others 2000
(1) SA 396 (T) at 400G-I.)

It seems to me that, faced with these
authorities, second respondent was compelled to, quite
unsuccessfully, change its stance and disavow its original intention
to ratify the wrongful grant of height relaxation on Erf 109 by its

[21] That intention is clearly
expressed in the written communications by themselves and on its
behalf predating February 2008, for example, the two letters dated 16
November 2007 (already quoted above), and December 2007; the
intention was to ratify what its official had unlawfully done. In
light of these letters and other communications in the same vein, the
contention on behalf of second respondent that what happened on 21
February and 28 February 2008 was a revisiting or reconsideration of
the issue of height relaxation on Erf 109 cannot, in my opinion, be
sustained. Equally unsustainable is the submission by Mr Rosenberg,
for second respondent, that the word ratification in the resolution
on 28 February was only a label, and that that resolution ‘was
a de novo decision – a rehearing and was not a ratification in
the strict sense of validating the previous unauthorised decision’.
Mr Rosenberg went further to say that the court should determine what
preceded the resolution and that the result of the entire proceedings
culminated in the resolution. I agree that the court should do so.
However, the problem is that ‘the entire proceedings’
would include everything that happened from time to time since the
relaxation issue started in 2007, including actions by Council in
word and deed until February 2008, and many of the events and
communications, some repeated almost ad infinitum, clearly militate
against the conclusion Mr Rosenberg urges the court to accept. In
other words, ‘the entire proceedings’ are not limited to
the steps taken in February 2008. To repeat, ‘the entire
proceedings’, properly looked at, do not, with respect, support
the court a quo’s finding that the resolution of 28 February
2008 ‘was in fact a rehearing of the entire matter’.

[22] In saying that ‘the entire
proceedings’ prior to the resolution of 28 February 2008 was a
rehearing of the entire matter, the court a quo further reasoned as
follows at para 30 of its judgment:

‘It would have been different if
second respondent did not postpone a decision in respect of the
relaxation of the building height on Erf 109 on 4 December 2007 for a
period of two months and set the whole process in motion of inviting
the parties to attend an inspection to determine the impact of the
building of the Beach Lodge on Erf 66; the preparation of a photo
plan in that regard; the attendance of all the parties prior to the
management committee meeting, as well as the opportunity afforded to
all the parties not only to make written submissions, but also to
make oral submissions to the management committee before a decision
in the form of a recommendation to second respondent could be taken.
It must also be remembered that at that stage the first application
was still alive and the merits of the application which was intended
to restrict the building operations by third respondent, but because
it was not yet finalised, had not yet been considered by the court.
The building operation of Beach Lodge continued and was apparently
finished at the time of the inspection on 21 February 2008.
Consequently the people attending the site inspection could see
physically what the impact of the increased building height on the
Beach Lodge might be on the sea view of Erf 66.’

[23] This reasoning, in essence,
reveals that what second respondent was dealing with on 28 February
2008 was a fait accompli it was presented with by third respondent,
in that third respondent had continued with its illegal building
operations despite receiving second respondent’s warning to
desist as per the letters referred to in the preceding paragraphs of
this judgment. Secondly, the reasoning does not take cognisance of
the fact that what second respondent postponed on 4 December 2007 was
‘the ratification of the relaxation of the building height from
8 m to 10 m granted on Erf 109, Vogelstrand in so far as it be
necessary’, and that the parties were invited ‘to submit
their respective views with regard to this particular issue to
Council’. There was no question of them being invited to a
reconsideration of the height relaxation on Erf 109. In this regard
the questions asked by appellant’s representatives at that
Management Committee meeting on 21 February 2008 were very pertinent
as they sought a clarification as to exactly what the meeting was all
about. These questions should have been answered. The refusal to
answer those questions, for whatever reason was unwarranted.

[24] The court a quo seems to have been
oblivious of the fact that Mr Demasius had in fact anticipated what
the Management Committee was going to decide on 21 February 2008.
Even a causal reading of the papers before the court a quo reveals
this fact. The court a quo also ignored the fact that only Erf 66 was
inspected and it made no reference to the fact that the sea view that
appellant said would be impeded by the increased height of buildings
on Erf 109 included amenities as contemplated by the scheme. It has
been pointed out by appellant that the contemplated developments on
Erf 66 were not in the southern portion of the Erf as the court a quo

[25] In its reasoning the court a quo
lays emphasis on the first application being still undecided by the
court at the time the Management Committee held its meeting on 21
February 2008. An examination of the papers shows, in fact, that the
question of the erroneous grant of height relaxation on Erf 109 had
been conceded by second respondent. That issue in the first
application had therefore fallen away. The only issue that still had
to be considered by the court a quo related to the relief concerning
the rezoning application of Erf 109. This issue remains, to date,
outstanding as the Minister is yet to give his approval to the
relevant resolution by second respondent. The fact that the court a
quo allowed the first application to be used as an excuse by the
Chairperson of the Management Committee, and secondly its reasoning
in connection with the facts above it permitted what are in reality
red herrings to obscure the right path in this matter.

[26] The failure by the court a quo to
observe or at least to mention and consider, the instance that
numerous communications by Council evinced or appeared to evince the
fact that Council throughout persisted in the attitude that the
erroneous grant of height relaxation on Erf 109 had to be ratified is
startling. In the correspondence leading to the resolution on 28
February there are manifold indications and the intention that the
matter required the court’s consideration even if at the end it
chose to discount it. It may be accepted that a Council by subsequent
resolution can regularise a prior invalidity. In Roodepoort City
Council v Shepherd 1981 (2) SA 720 (AD) Trollip JA at 725G-H it was

‘In that case, however, there was
a specific and express resolution not ratifying an earlier invalid
resolution, but resolving formally what had been irregularly resolved
previously – to this extent there was no attempt to ratify but
to resolve de novo.’ (Emphasis supplied.)

‘That case’ referred to by
Trollip JA is Justus v Stutterheim Municipality 1962 (4) SA 499

In Roodepoort City Council v Shepherd ,
supra, Trollip JA said at 729E-F:

‘It is obviously therefore of
great importance that a council, in framing a resolution, should
express it in a reasonably clear and precise terms (cf Palmer Company
Precedents 16th ed at 870 regarding companies’ resolutions) in
order to give due effect to its intention and to inform the
inhabitants plainly of its decision, . . . .’

The learned judge of appeal further
stated at 731C-D:

‘The submission for the Council
that the words “dit in beginsel aanvaar word” import in
addition the intention and decision that the first of the general
valuations under that policy should be compiled and come into
operation on 1 July 1977 cannot be sustained. That cannot be read
into the resolution the wording of which is clear and precise. If
that had been the Council’s intention and decision it would
surely have said so explicitly in the resolution, as it had similarly
done previously in the 1972 and 1974 resolutions, . . . .’
(Emphasis supplied.)

In Bardopoulos and Macrides v
Miltiadous 1947 (4) SA 860 (W) at 863 Clayden J stated:

‘Here the clause has one meaning
according to the words in which it is expressed. In interpreting
these leases I have no right to give a meaning which I do not think
the words used bear. If words have been used which cannot bear the
meaning contended for, but the meaning expressed is not what was
intended by the parties, the Court can be asked to rectify the
contract to set out the meaning intended, but it cannot be asked to
read words as meaning what they do not mean.’ (My emphasis.)

[27] Applying the above dicta to the
present matter, there is no doubt in my mind that the argument on
behalf of second respondent vis-à-vis its resolution of 28
February 2008 stands to be rejected. The argument involves importing
or reading words into the resolution which are not there, and
construing the words ‘ratifying with retrospective effect’,
to mean something else.

[28] To revert to the affidavit sworn
to by Mr Demasius on 21 February 2008, in opposition to the first
application, as already pointed out, the appellant was unaware of the
stance of Council as shown in para 35. In submissions before us, Mr
Tötemeyer made it clear that at that stage appellant was faced
with repeated reference by Council, in its correspondence, to its
obligation to consider the ratification of the illegal act by its
official. This, he pointed out, left appellant in a predicament as to
what was to be dealt with at the Management Committee meeting on 21
February 2008, hence the questions asked by its representatives at
that meeting. There was obviously a background to the questions which
clearly showed that what was intended was ratification. Counsel
further submitted, and I agree, that if what was intended was a
consideration de novo of the height relaxation on Erf 109 then the
appellant was subjected to a fundamentally unfair hearing in
violation of Articles 18 and 12 of the Constitution when the
Chairperson refused to answer those questions.

[29] The affidavit sworn to by Mr
Demasius on 21 February 2008 in respect of the first review
application reveals conclusions in favour of third respondent in
regard to the issue of the height relaxation on Erf 109. It follows
that the meeting on 21 February and the resultant recommendation to
Council constituted an endorsement of a predetermined position. That
in my opinion can hardly be described as a fair procedure, or as
affording a party a fair and public hearing. It is quite interesting
that Mr Demasius also says that Council ratified the decision of its

Alternative or additional
considerations relevant to the main issue

[30] During oral submissions this court
asked Mr Tötemeyer a number of questions particularly per the
Chief Justice and my brother Chomba AJA. I turn to these questions
and the answers thereto as follows:

‘CHOMBA AJA: But in this case
there was correspondence, was there not, requesting for written
submissions in the first place and then later on also to make oral
submissions. Now if it was a straight forward ratification of an act
done would any written submissions have made any difference?

MR TÖTEMEYER: My Lord that is one
of the difficulties which the appellant face(s). This contradiction
which Your Lordship has put to me, on the one hand calling it a
ratification, on the other hand calling for written submissions and
holding an inspection which caused the appellant to legitimately ask
please clarify what this meeting is for. (Emphasis supplied.)

. . .

CHOMBA AJA: But at that very time when
this question was asked about what was to be done at the meeting, was
this same issue of ratification not pending in the High Court?'

The answer by Mr Tötemeyer was
disjointed, but the gist of it, as I understand it, was, no and that
the issue of ratification was concerning height relaxation on Erf 109
was challenged but second respondent had conceded the illegality of
it and was going to take steps to legalise it. My understanding of
what counsel tried to say is bolstered by reference to the history of
what second respondent did, i.e. warning third respondent in letters
second respondent wrote about the illegality of what third respondent
had done.

‘SHIVUTE CJ: But Mr Tötemeyer
in the circumstances where there appears to be conflict between what
the various correspondence between the parties implied as regards the
question of whether what took place was a ratification or a hearing
de novo, would a court not be entitled to go beyond the labels that
the parties had put to the process in order to determine what had
occurred in substance, whether it is actually a ratification or a
form of a rehearing as the High Court did in its judgment?

MR TÖTEMEYER: I have no difficulty
with that approach Your Lordships, but if it were to be so that the
court goes into, engages in that exercise which Your Lordship has
just put to me and then comes up to the conclusion, but in substance
yes, it appears that it was a de novo consideration of the matter.
What one cannot get past is if that were to be so the appellant was
subjected to a fundamentally unfair proceeding, because it gets
conflicting messages from the second respondent before that confusing
message clearly stated in correspondence that it is a ratification
and then when it seeks clarification of that it gets refused. It
gets, to a hearing where only one spokesman was allowed for each
party. There was no question of any evidence. If it knew it was a
rehearing it could have said well then I wanted, and the appellant
says that in reply. Then I would want to have called expert
evidence, then I would have wanted to consider my position and
conducted it as if it was a rehearing, but I first wanted to
establish at that meeting what is this all about, why are you talking
about a ratification, clarify this to me. And then it goes further,
the decision which comes out later, the recommendation and the
ultimate resolution speaks about a ratification with retrospective
effect.’ (My underlining.)

SHIVUTE CJ: Is it your submission that
the ruling by the chairman or chairperson of the committee that there
should be one spokesman for each party precluded the leading of
evidence if the parties were so advised?

Mr TÖTEMEYER: My Lord depending on
what the nature of the hearing was, if the appellant was informed it
is a rehearing for instance then it may well be, and that is also
what it says in its Replying Affidavit, and says, but then I want a
postponement, then I want witnesses to be called, I want experts to
give evidence and now we do not know what the chairman then would
have done had that request been forthcoming, but before we got to
that stage they first legitimately had to enquire what this meeting
was about. So depending, if it was a ratification the matter would
have surely been approached differently than simply where the case
would have been handled in the rehearing because the answer to
ratification is fairly easy. We submit that in our heads and if Your
Lordships find that it is a ratification the answer to that is you
cannot do that, it is illegal. You cannot ratify an illegality and
that might well have been the address the basis of the address of the
appellant at that hearing to say insofar as you ratify you cannot do
that in law, but if you want to hold a rehearing then consider the
matter de novo, then I would seek a postponement and then I want to
(indistinct) evidence. And that is why if it is a rehearing there is
a fundamental unfairness and a breach of the audi principle and a
breach of Article 18 in this matter.’ (My underlining.)

I pause here to say that I accept the
logic of Mr Tötemeyer in his answer to the questions by the
Chief Justice. In doing so, I bear in mind the remarks by Trollip JA
in Roodeport City Council v Shepherd, supra, at 729E-G and 731C-E.

[31] The further questions by the court

‘CHOMBA AJA: But was there not a
notification by implication in the invitation that was sent out,
because my reading is that the management committee meeting was going
to consider photo plans and then inspection of the site. The site,
now which according to my understanding of the documentation that we
have gone through had not been done by the officials who made this
decision in the first place . . . So there was an indication that
more was going to be done at this meeting than what had been done by
the official, not so?

Mr TÖTEMEYER: My Lord yes, but
that, all the more reason to clarify this apparent contradiction.
Are you looking at that simply to decide whether the official way
back decided correctly? Could he have decided as he did that would
be a ratification and an illegal one at that or are you considering
the entire matter afresh, because you want to hear my views and you
invite, you say there should be ratification. Then you should
clarify. You should not take a decision where you again call it
ratification with retrospective effect and when you are taken to
court then you come and say but what we did is a rehearing. That is
unfair. You cannot allow a call upon the appellant to second guess
now really what is the inherent nature of these proceedings in view
of these messages. Then, if the appellant wants to clarify that
refuse, refuse him answers. (My underlining.)

SHIVUTE CJ: But did the appellant in a
sense shoot itself in the foot by effectively walking out of the
meeting instead of actually standing its ground and go through the

Mr TÖTEMEYER: ‘I submit not
My Lord. If he does not know what the nature of the proceedings is
that follows how, and I ask that rhetorically of course, how would
that be a fair hearing if he does not know how to conduct itself. Is
it now a ratification, is it a new hearing, must I address it and
treat it as if it is a ratification hearing or is it a new hearing,
my approach will be different, why must I further, rhetorically again
I pose the question, participate in such a proceedings if I do not
even know what the nature of it is and when I ask I get, my answers
are refused.’ (My underlining.)

[32] To conclude this aspect of the
matter I must record my respectful disagreement with the following
remark by the learned judge a quo in para 32 of his judgment. He
remarked with reference to the Management Committee meeting on 21
February 2008:

‘The attitude of the applicant is
clear, namely it did not intend to make submissions to the meeting,
it only wanted to determine the status of the meeting by asking the
four questions. It was made clear by them that no oral remarks would
be made in respect of the inspection until the questions are
answered. It also stated that the applicant reserves all its

This was said in relation to the
questions posed by appellant’s representatives at that meeting.
For reasons already stated above, I regard this statement as a
gratuitous observation on the attitude of appellant’s
representatives at that point. In my view, the questions they asked
were very pertinent and deserved very simple answers. The refusal to
answer them was on any score unreasonable and unfair.

[33] As regards that comment by the
judge a quo, it is necessary to refer to some events that had taken
place previously in respect of the issue of height relaxation on Erf

On 11 October 2007 the Ordinary
Management Committee of Council considered the issue after the
Council had received an application for the rezoning of Erf 109 from
‘Single Residential’ to ‘General Residential’,
and had resolved that Council will only approve a rezoning to
‘special’ and inter alia,

'(f) That no building plans be approved
by the Building Control Section unless proof could be supplied that
the necessary statutory requirements have been met.’

The Management Committee then made the
following observations:

‘On 25 September 2007, building
plans for alterations/additions on Erf 109, Vogelstrand, were

It might appear that the decision to
approve building plans was done in disregard of the resolution (f)
taken on 28 June 2007, but the submitted plans were scrutinised and
approved on the basis as if the Erf was still zoned Single
Residential. The intended alterations/additions and subsequent
approval thereof could be done without having regard to the pending

The department of Engineering Services
thus relaxed the height restriction as per common practice.

On 4 October 2007 a notice was served
on Council giving notice of an urgent interdict being sought from the
High Court of Namibia against Council regarding the resolutions
passed by Council on 28 June 2007.

. . .

Counsel opposed the application and the
court denied the urgency of the matter. The matter will now proceed
on a normal defended basis.

Subsequently, during recent discussions
with our legal advisors and Senior Council, it was found that the
aspect of approving building plans could pose some difficulties in
future. The reasoning behind this is the fact that building height
approval was granted in a way that is not in terms of the procedures
as prescribed by the Town Planning Scheme.

It is currently common practice outside
the Conservation area, to obtain permission from the direct
neighbours if building height has to be relaxed. If no objections are
received building plans are approved accordingly.

This process was followed and the
direct neighbour (being Erf 110) gave his consent to relax the
building height restriction from 8 m to 10 m on Erf 109 Vogelstrand.
The owner of Erf 66 Vogelstrand was not approached for consent as the
two erven are divided by a public street. This is now one of the
points of contention in the High Court of Namibia.

The Town Planning Scheme stipulates
that Council may relax the maximum height on Single Residential erven
to 10 m if it is satisfied that no interference with the amenities of
the neighbourhood, existing or contemplated by the Scheme, will

After discussion with our Legal
Advisors it is clear there are differences of opinion whether this is
in fact a delegated authority or whether only Council may approve
height relaxations outside the Conservation Area.'

It then recommended:

‘That the Council ratifies the
relaxation of the building height relaxation from 8 m to 10 m on Erf
109 Vogelstrand in as far as it may be necessary’. (My

Appellant was notified of this
recommendation on 16 November 2007 and the fact that the
recommendation would be tabled for consideration on 04 December 2007.
The appellant was invited to make written comments before 23 November
2007. At that meeting Council passed the following resolution:

‘That Council ratifies the
relaxation of the building height relaxation from 8 m to 10 m granted
on Erf 109 Vogelstrand in so far as it may be necessary’. (My

Following this and in reply to the
invitation, appellant on 22 November 2007 raised a number of what it
described as points in limine (many of them being procedural points
which I need not detail here). In addition appellant raised detailed
points on the merits in its objection to what was intended. This
argument centred on the breach of clause 2.3 of Council’s Town
Planning Scheme which restricted the height of dwelling houses to 8
metres, as follows:


Erf 109 is zoned “single
residential”. As such the use is limited. Para 2 of the Town
Scheme sets out the rights of an owner of a property zoned as single

Our instructions are that the owner of
Erf 109 has flouted these restrictions at all times, among others but
not limited to the breaching of the consent use restriction of 9
rooms which directly impacted on the height restriction of 8 meters.
This has been with your knowledge and yet you have not taken any
steps to bring the use of the structure on Erf 109 in line with the
zoning and rights attached thereto.

3.4 The present matter is an example of
your approach. The building plans were approved to a height of 11.123
m. Please note that the plans were already approved before the
prescribed requirements were complied with as in terms of the Town
Planning Scheme. The owner then started building and is in the
process of completing the structure. Yet now, belatedly, you wish to
entertain an application for relaxation of the building restrictions.

. . .

3.10 Our instructions are that it is
clear and you are fully aware of the fact that the present use of Erf
109 by the owners therefore is illegal as it is contrary to the Town
Scheme and the regulations applicable. Yet, you do nothing about it.
You have not enforced the Town Scheme and have not taken any steps to
limit these owners to the rights attached to Erf 109.

In fact, and in our view you have
assisted them wherever possible, and thus infringed on and blatantly
disregarded our client’s rights allocated to them as per their
zoning, among others. It is our instructions to record that your
conduct currently not only discriminates against our client but also
to the rights of the neighbourhood.’

[34] I have referred to these events
not only to indicate that in fact appellant had already recorded its
comments on the issue of height relaxation on Erf 109, but also to
stress that appellant could not, in all fairness, be regarded as if
it was completely unwilling to make any written comments as invited.
The fact that it had already done so extensively previously and was
again being invited to make new written comments, indicates, in my
view, an indecisiveness on the Council’s part which
characterised its (Council’s) approach to the whole matter. I
say this again with reference to the questions put forward by the
appellant’s representatives asked on 21 February 2008.

[35] In his oral submissions Mr
Tötemeyer argued, correctly in my view, that one cannot have
this repeated reference to ratification and then, ex post facto, turn
around and say what Council did was to consider the issue de novo. In
his written heads of argument Mr Roseberg made the following

‘35. Although the Council was
advised to ratify the relaxation which had been granted, both the
Management Committee and the Council (neither of which had previously
considered the matter) dealt with the application de novo. The fact
that the resolution in question purported to ratify the previous
decision is of no consequence. That there was a full reconsideration
of the application cannot be disputed.’

With respect, I disagree with this and
for the reasons advanced above. The facts show that both the
Management Committee and the Council had in fact previously
considered the matter (with the Management Committee actually
recommending ratification) albeit the Council had not decided
formally and finally. They were both so acquainted with the issue
that if they had intended to reconsider the matter there was no room
for them to be vague as to what their intentions were when the advice
by the Committee was made and acted upon.

[36] The fact that Council, as the
responsible authority, was statutorily obliged to take action against
third respondent is not in dispute. Section 28 of Ord 18 of 1954
makes it clear and needs no repeating. Section 48 penalises any
non-compliance with the provisions of the Scheme once it comes into
operation. When considering the prohibited actions of the third
respondent and Council’s reaction to them, it is worth
recalling the words of Harms J in United Technical Equipment Co (Pty)
Ltd v Johannesburg City Council 1987 (4) SA 343 (TPD) at 348H-I:

‘(c) It is not correct to allow
the appellant to present the townships board and the Administrator
with a fait accompli created by its own illegal act in considering
the application.

(d) The respondent has not only a
statutory duty but also a moral duty to uphold the law and to see to
the due compliance with its town planning scheme. It would in general
be wrong to whittle away the obligation of the respondent as a public
authority to uphold the law. A lenient approach could be an open
invitation to members of the public to follow the course adopted by
the appellant, namely to use land illegally with the hope that the
use be legalised in due course and that pending finalisation the
illegal use will be protected indirectly by the suspension of an

At 349F the learned judge pertinently

‘(f) A suspension or postponement
of the interdict would amount to the condonation of criminal

Prayers 2 and 3

[37] The court a quo found it
unnecessary to deal with the submissions made by the appellant in
regard to the interdicts prayed for in prayers 2 and 3 of the notice
of motion in this matter. This approach, it was said, was due to its
decision on the main issue. However, the court curiously observed in
para 44 of its judgment:

‘[44] I cannot fathom on what
legal basis the applicant can request this court to interdict the
third respondent to operate a restaurant or a guest house. The basis
of the applicant’s request to this court seems to be
non-compliance by the third respondent with the applicable Town
Planning Scheme. If the third respondent did act contrary to the
provisions of that Scheme the applicant could and should have applied
for an order against the municipality of Swakopmund or second
respondent to enforce the Town Planning Scheme. Without doing that,
the applicant does not, in my opinion, have any standing to apply for
the relief directly against third respondent as set out in prayers
two and three.’

[38] With respect, for the learned
judge to say this, if I understand him correctly, he must, it
appears, have been completely oblivious of the principle referred to
by Mr Tötemeyer in para 13 of his heads of argument, which
states as follows: (quoting Baxter, Administrative Law):

‘Where legislation has been
enacted in the interests of a particular individual or class of
persons, the courts will presume that a violation of the legislation
will automatically affect the interests of such individual or class
and anyone falling within the protected category will have standing
to challenge actions taken in violation of the legislation without
having to establish that his interests are in fact affected.’
(Emphasis supplied.)

Baxter says that the principle was
introduced into South African Law by Solomon J in Patz v Greene &
Co 1907 TS 427 at 433 and shows that it has been applied in a number
of cases. See the following cases, for example, BEF (Pty) Ltd v Cape
Town Municipality and Others 1983 (2) SA 387 at 400D-H; Esterhuyse v
Jan Jooste Family Trust and Another 1998 (4) SA 241 (C) at 252B-I,
253G-254D; Colonial Development (Pty) Ltd and Others v Outer West
Local Council and Others 2002 (2) SA 589 (N) at 599I-602C; Roodepoort
– Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933
AD 87 at 96.

[39] Although it is so that in a number
of cases where the Town Planning Scheme No. 12 was contravened, it
was the Council itself that took steps to enforce the law, in light
of the cases listed above and others, it thus behoved the court a quo
to consider the submissions made on behalf of appellant as regards
prayers two and three. On the facts of the present matter, these two
prayers in the notice of motion are clearly independent relief, whose
success or failure did not depend on the decision on the main issue,
as the court a quo seems to imply. It was in fact a misdirection to
conclude as it did. This court must therefore consider these
submissions as well as, of course, any counter submissions that were
made thereon on behalf of the third respondent. I accordingly proceed
to do so.

[40] The salient background facts
relevant to the two prayers of the notice of motion can be summarised
as follows:

By 12 November 2007, second respondent
had become aware of the fact that the bed and breakfast facility on
Erf 109 Vogelstrand is not operated in terms of the Council’s
Accommodation Establishment Policy.

Apparently second respondent was made
aware of this fact by papers filed in the High Court of Namibia by
appellant. As a result, second respondent through its General Manager
of Engineering Services, Mr F W Holtzhausen, addressed the letter
(annexure "8" to appellant’s founding affidavit) to
Beach Lodge CC asking it to ensure compliance with the Council’s
Accommodation Establishment Policy.

As already noted, Beach Lodge CC, third
respondent, was furthermore informed that:

‘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.

The ‘statutory procedures’
still to be completed refers to the fact that the rezoning to Special
had yet to be approved by the Minister (fourth respondent). At the
time of the hearing of the appeal this rezoning had yet not been

As late as 19 February 2008, again
through Mr Holtzhausen, second respondent addressed the following
letter (annexure "9" to appellants founding affidavit) to
Beach Lodge CC (third respondent):

‘Dear Sir


We refer to the above, the building
plans no. 360/2007 approved on 25 September 2007 and the inspection
of your premises by our Messrs Hülsmann and Gouws on date

The inspection revealed that you are
currently operating 23 bedrooms and are in the process to create
another 4, which will increase the total number of bedrooms to 27.

Your property is currently zoned single
residential, with a consent use to operate a pension/bed and
breakfast. In terms of this consent use you are not entitled to
operate more than 20 (twenty) bedrooms.

We hereby instruct you to cease with
the building operations to create the four additional bedrooms in the
current lounge area, until such time as the rezoning of your property
has been approved by the Minister of Regional and Local

Government, Housing and Rural

In addition we require your written
undertaking that you will at no stage, until such time as the
rezoning of your property has been approved by the Minister of
Regional and Local Government, Housing and Rural Development, rent
out more than 20 rooms to members of the public.

Failure to adhere to this instruction
will be at your own risk and will invite legal action being taken
against you in terms of Regulations (sic) 28 and 48 of the Town
Planning Ordinance 18 of 1954.

Yours faithfully


FW Holtzhausen


[41] A comparison between annexures “8”
and “9”, shows that second respondent was contradicting
itself as to the number of bedrooms third respondent was allowed to
operate in terms of its zoning classification. This is pointed out in
para 37 of appellant’s founding affidavit. What turns on this
is merely the fact that second respondent exhibits in this way its
lack of proper understanding of the provisions of the Scheme in that

The stance of the parties on prayers 2
and 3

[42] The interdict sought by appellant
in prayer 2 is based on the allegations that third respondent is
operating a fully-fledged restaurant on Erf 109 contrary to the
provisions of the Scheme, which do not permit it to do so and that
the restaurant on the top storey of the building on Erf 109 does not
only serve residents but also members of the general public.
Appellant relies for this allegation on the affidavit of a Mr van
Zyl, a non-resident, who had a full dinner served at the restaurant,
with alcoholic beverages. This affidavit is not challenged by third
respondent. Appellant also relies on the stance taken by second
respondent, as reflected in annexure “8”. A restaurant is
not a consent use permitted under the ‘single resident’
zoning on Erf 109 in terms of Scheme No 12. That fact is clearly
admitted by second respondent and is not disputed by third
respondent. Annexures “8” and “9” show,
second respondent’s stand quite clearly, yet, apart from the
warnings to third respondent, second respondent took no other steps
to ensure compliance. It purports to explain this omission or failure
by referring to the history of Beach Lodge, and expresses the view
‘that Beach Lodge’s existing rights prior to Amendment
Scheme No 12 cannot be diminished retrospectively’. It points
out, however:

‘by definition “Scheme”
in second respondent’s Town Planning Scheme amendment No 12
means “Amendment Scheme of the Swakopmund Town Planning Scheme
adopted by the Council in terms of section 16 (bis) of Ordinance No
18 of 1954, and as amended from time to time”. In terms of the
Town Planning Ordinance of 1954, “Town Planning Scheme”
or “Scheme” means “a planning scheme including a
regional planning scheme, operative, approved, prepared or in the
course of preparation in accordance with the provisions of this
Ordinance, and includes a Scheme supplementing, varying or revoking
an approved Scheme, and the map illustrating the Scheme”.’

[43] Third respondent’s stance on
this issue, as well as the issue regarding appellant’s
complaint in prayer 3, is based on the history of Erf 109 itself.
This history is narrated at length in the opposing affidavit deposed
to by Mr Demasius on 21 February 2008 on behalf of first and second
respondents. In this narration Mr Demasius refers to two
accommodation policies adopted by second respondent and states at
para 5.11 of his affidavit:

‘ . . . At the time of this “new
policy” (adopted in 2004), second respondent sic (meaning third
respondent) already had a pension/bed and breakfast establishment
with more than 9 rooms (as previously approved by Council under its
first policy aforesaid). It appears to me that both Amendment Scheme
12 and this new policy were adopted without considering the existing
rights of owners who obtained approval under Amendment Scheme 7 and
the old policy to conduct the business of a pension/bed and
breakfast. The requirements of the new policy was based on Amendment
Scheme 12 whereas the old policy was based on Scheme 7. This new
policy, amongst others, also limited the height of buildings to 8
meters or as permitted in the Town Planning Scheme for the relevant

He observes in para 5.12 of the
affidavit, that first respondent had been advised to investigate the
amendment of clause 8.14 of its Scheme to insert the following
wording: and any existing uses practised in terms of any approved
Amendment Scheme following the words the original Swakopmund Town
Planning Scheme in clause 8.14.1 to avoid the current situation where
the later Amendment Scheme has the effect of depriving a landowner of
approved existing uses of his property (as approved under an older

[44] In relation to the above, third
respondent’s opposing affidavit, confirmed in para 3 the
history of Erf 109, in particular that Beach Lodge conducted its
business prior to the implementation of Scheme 12 and in so doing
obtained vested rights as described by second respondent, and
submitted that –

‘. . . Scheme 12 should be read
subject to Beach Lodge’s existing rights . . . if that cannot
be done, the implementation of Scheme 12, to the effect that Beach
Lodge’s existing rights are infringed, is contrary to the
provision of articles 21(1)(j), 16 and 18 of the Constitution . . .
in so far as Scheme 12 cannot be read as if it reserves existing
rights, enforcement of Scheme 12 vis-a-vis the Beach Lodge will be
ultra vires the Constitution.’

[45] As regards prayer 2 it is
necessary to quote para 31 of third respondent’s opposing
affidavit, and to comment thereon:

‘With regard to the application
for an interdict to restrain Beach Lodge from operating a restaurant,
it is respectfully submitted that Beach Lodge is entitled to operate
a restaurant when it comes to providing meals for residents at the
pension and their guests. Beach Lodge is the holder of a liquor
licence which enables it to serve liquor on the premises to those who
are accommodated on the premises and their guests. I refer to para
3.29.4 of the second respondent’s affidavit. In this regard the
relief sought in para 2 of the notice of motion is overbroad and the
case is not made for such a blanket restriction.’

[46] Firstly, para 3.29.4 of second
respondent’s affidavit says no more than what third respondent
says in para 31 of its affidavit. Secondly, to say the relief sought
is overly broad is not to deny the specific allegation that third
respondent is operating a fully-fledged restaurant serving the
general public. Thirdly, the affidavit of Mr van Zyl on which
appellant relied is not denied at all, nor the fact that Council’s
letter of 19 February 2008 confirms the allegation. Lastly, although
the relief sought in para 2 may be accepted as overly broad, it is a
far cry from saying that no relief should be granted at all in this
regard. I therefore come to the conclusion that the court a quo
should have granted (albeit operatively worded) the relief sought in
prayer 2 of the notice of motion.

[47] In view of the dispute regarding
the number of rooms that existed on Erf 109 and the history of Erf
109 in this regard, which appellant could hardly dispute by, for
example, referring the issue to oral evidence, prayer 3 falls to be
dismissed. I find it unnecessary to deal with the legal issues raised
in third respondent's and Mr Demasius’ affidavits.


[48] In view of the complex history of
Erf 109 which was partially revealed in the opposing affidavit of Mr
Demasius after what appears to be comprehensive research, the result
of which left even second respondent in some doubt as to its legal
implications. I am of the view that any order of costs either way on
this aspect of the matter would not be appropriate.

[49] In the result:

1. The appeal in respect of prayers 1
and 2 of the notice of motion succeeds.

2. The order of the High Court is set
aside and substituted for the following order:

'(a) The 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:

“(i) 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,

(ii) 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”,

is reviewed and set aside.

(b) Third respondent is interdicted and
restrained from operating a restaurant serving non-residents
(excluding a reasonable number of guests of residents) on Erf 109,
Vogelstrand, Swakopmund.’

3. The appeal in respect of prayers 3
and 4 of the notice of motion fails.

4. The first, second and third
respondents are ordered to pay appellant’s costs in respect of
prayers 1 and 2 both in the High Court and on appeal jointly and
severally, the one paying the other to be absolved, including in both
cases the costs of one instructing and two instructed counsel (where
two instructed counsel were involved).

5. No cost order is made in respect of
prayers 3 and 4 of the notice of motion.





APPELLANT: R Tötemeyer

Instructed by M B de Klerk &

Rosenberg SC

Instructed by Fisher, Quarmby &

THIRD RESPONDENT: R Heathcote (with
him E M Schimming-Chase)

Instructed by Dr Weder, Kauta &
Hoveka Inc