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Municipality of Walvis Bay and Another v Respondents set out in annexure "A" to the notice of motion - being the occupiers of the Caravan Sites at Long Beach Caravan Park, Walvis Bay, Republic of Namibia (SA 20/2006) [2007] NASC 4 (19 November 2007)

.RTF of original document

REPORTABLE


CASE NO.: SA 20/2006


IN THE SUPREME COURT OF NAMIBIA


In the matter between:


THE MUNICIPALITY OF WALVIS BAY

THE COUNCIL OF THE MUNICIPALITY OF
WALVIS BAY
 FIRST APPELLANT

SECOND APPELLANT

And

THE RESPONDENTS SET OUT IN ANNEXURE “A” TO
THE NOTICE OF MOTION – BEING THE OCCUPIERS
OF THE CARAVAN SITES AT LONG BEACH CARAVAN
PARK, WALVIS BAY, REPUBLIC OF NAMIBIA.		 RESPONDENTS


CORAM:            Shivute, C.J., Strydom, A.J.A. et Chomba, A.J.A.

Heard on:                 2007/04/10

Delivered on:    2007/11/19



APPEAL JUDGMENT



STRYDOM A.J.A:   [1] This is a matter which was brought on Notice of Motion by the 1st Appellant in the High Court of Namibia. Before the matter was heard objection was raised by some of the respondents against the locus standi of the 1st appellant to bring the application. Application was then made to join the 2nd appellant as 2nd applicant in the proceedings before the Court a quo. This application was successful.

[2] The relief claimed by the appellants, in their amended Notice of Motion, concerns certain lease agreements, concluded by them during 1993 and 1994 and is set out as follows:

“(1)      Declaring each of the agreements of lease purportedly entered into between the first and/or second applicants and respondents (jointly and severally) in and during 1993 and 1994 in respect of certain caravan sites at the Long Beach Caravan Park, Walvis Bay, to be ultra vires the powers of the first and/or second applicants, and accordingly null and void, and of no force and/or effect;

(2)     
Declaring that the option to renew clauses in each of the agreements of lease entered into between the first and/or second applicants and the respondents (jointly and severally), in and during 1993 and 1994 in respect of the caravan sites at the Long Beach Caravan Park, Walvis Bay to be ultra vires the powers of the first and/or second applicants, and accordingly null and void, and of no force and/or effect;

(3)     
In the alternative to paragraphs 1 and 2 above, declaring that the option to renew clauses in each of the agreements of lease entered into between the first and/or second applicants and respondents (jointly and severally), in and during 1993 and 1994 in respect of the caravan sites at the Long Beach Caravan Park, Walvis Bay to be against public policy, and accordingly null and void, and of no force and/or effect:

(4)     
In the alternative to paragraphs 1, 2 and 3 above, declaring that the first and/or second applicants are, in terms of a tacit term in the agreements of lease entered into between the first and/or second applicants and the respondents (jointly and severally), in and during 1993 and 1994 in respect of caravan sites at Long Beach Caravan Park, Walvis Bay, entitled to review and rescind (and not renew) the leases for a further period, and further, that the first and/or second applicants have reviewed and rescinded the leases, and not renewed them, and that the continued occupation of the caravan sites aforementioned are unlawful;

(5)     
Ordering the respondents (jointly and severally), to vacate the caravan sites at Long Beach Caravan Park, Walvis Bay within one month of the date of the order of this Court, failing which the Sheriff of this Court shall be authorised to evict them, if necessary , with the assistance of the Police;

(6)     
Permitting the first and/or second applicants to demolish and remove the said caravan sites once they have been vacated, and ordering that the costs of such demolition and removal be paid for by the respondents, jointly and severally;

(7)     
Directing that those of the respondents who oppose this application bear the costs thereof, jointly and severally, the one paying the other absolved;

(8)     
Granting such further and/or alternative relief as may be necessary.”



[3]     
The Court a quo dismissed the application and ordered the appellants to pay the costs of those respondents who opposed the application. The appeal of the appellants is against the whole order of the Court a quo and the order of costs. Mr. Arendse SC, assisted by Mr. Borgström, instructed by Conradie and Damaseb, appeared for the appellants (the Council). Mr. Wepener SC, instructed by Erasmus Associates, appeared for 5th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22nd, 23rd, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 32nd, 35th, 38th, 40th, 41st, 42nd, 43rd, 45th, 49th, 46th, 47th and 51st respondents.

[4]     
At the time when the application was launched some of the respondents did not enter appearance to defend and the Council was able to obtain judgment by default against them. They were the 1st, 4th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 24th, 3 3rd, 36th and 39th respondents.

[5]     
The background to the dispute with the various respondents, and how it came about that an Ordinance of the Cape Province of South Africa applied to regulate the rights of the parties, is set out in the affidavit of Mr. Augustinus Katiti, the Town Clerk of the Council, and who deposed on its behalf. Although the 17th respondent, who filed an affidavit on behalf of some of the respondents, did not admit these facts he did not seriously, or at all, dispute the historical data set out by Mr. Katiti.

[6]     
According to the historical facts as set out by Mr. Katiti Walvis Bay was annexed by Great Britain in 1840 and became part of the Union of South Africa in 1910. In 1921 it became part of South West Africa and in 1971 it was transferred to the Cape Province of South Africa. The Municipal Ordinance, 1978, Ordinance 26 of 1978, of the Province of the Cape of Good Hope of South Africa applied henceforth to Walvis Bay.

[7]     
In 1993 a combined local authority comprising Walvis Bay Municipality, Narraville Management Committee, Kuisebmond Town Council and Walvis Bay Regional Services Council was established by paragraph 1 of Proclamation No 122 of l993 by the Administrator of the Province of the Cape of Good Hope of South Africa. The combined authority was known as the Walvis Bay Municipality.

[8]     
However, at midnight on 28th February 1994 Walvis Bay was re-integrated into Namibia and on 16 August 1994 the Municipal Ordinance, 1978, Ordinance 26 of 1978 of the Cape of Good Hope, ceased to apply to Walvis Bay. After re-integration the Local Authorities Act of Namibia, Act 23 of 1992, applied to Walvis Bay.

[9]     
When the various lease agreements were entered into with the respondents in 1993 and 1994 Walvis Bay was still administered as part of the Cape Province of South Africa and hence Ordinance 26 of 1978 (the Ordinance) applied to the relationship between the Council and the respondents. This is common cause between the parties.

[10]    
Mr. Katiti went on to state that a caravan park was established by the Council at Long Beach. In June 1989 the Town Clerk at the time, Mr. J. Wilken, and the Town Engineer, recommended to the Council that four stands in the park be provided for the occupation of permanent caravan sites.

[11]    
At a council meeting, held on 6 December 1989, it was resolved that mobile homes for permanent occupation would be allowed and let subject to certain conditions. One such condition was that the lease would only run for one year and could be renewed only after the lease was reviewed by the Council.

[12]    
Mr. Katiti alleged that during the latter half of 1993 the Council received and approved lease agreements in regard to the 32nd to the 51st respondents. All the leases were in Afrikaans and a duly translated copy was attached by the Council to its papers. From this it appeared that the agreements were signed on behalf of the Council by the Town Clerk, at the time a Mr. Du Preez, and the Mayor, at the time, a Mr. Edwards. The lease was now for a period of 9 years and 11 months. The agreements further contained a renewal clause for one further period of 9 years and 11 months.

[13]    
Mr. Katiti stated that in respect of these leases it is the Council's case that only some of the leases were approved by the Council and that none of the renewal clauses, contained in the agreements, were approved. Consequently it would be argued that these clauses were ultra vires the powers of the Council.

[14]    
In regard to the agreements entered into by the 32nd to the 51st respondents it was argued that they were null and void and ultra vires the powers of the Council because they contained the renewal clause and a cancellation clause by the lessee which it is alleged to have been unauthorised. I will therefore deal with these leases as a group only in regard to the stated grounds.

[15]    
In regard to lease agreements entered into between the Council and the 1st to 31st respondents, Mr. Katiti alleged that no approval to enter into such agreements was given by the Council and consequently the Town Clerk and Mayor, who signed the contracts on behalf of it, were not authorised to do so. As, in terms of sec. 152(1) of the Ordinance, the power to enter into such contracts was that of the Council, it followed that the agreements were ultra vires those powers and null and void.

[16]    
In the Court a quo the agreements were also attacked on the basis that they were against public policy and therefore void and, in the alternative, a declaratory order was sought to the effect that the leases contained a tacit term that the agreements would only be renewed subject to council’s approval. In argument before us Mr. Arendse informed us that he was only persisting in the ultra vires argument.

[17]    
In his affidavit Mr. Katiti stated that the income derived from these leases were paltry. He stated that the land on which the caravan park is situated is prime property which could be sold for more than N$ 3 million. He maintained that the development of the land in question would not only generate income for the municipality, but also create jobs and other benefits for "a greater number of people".

[18]    
The respondents opposed the application and affidavits were filed by the 17th, 18th and 45th respondents. In his affidavit the 17th respondent raised various defences. He, inter alia, objected first of all to the prayers of the Council's Notice of Motion in which the relief is claimed jointly and severally against all the respondents. The deponent also raised the defence of misjoinder and pointed out that many of the sites were no longer occupied by the original leaseholders and submitted that the new occupiers should have been joined.

[19]    
Mr. van der Westhuizen, the 17th respondent, disputed various issues raised by Mr. Katiti. He pointed out that at the time when the Council considered the leasing of permanent sites to the public, the caravan park was under utilized and that the leasing out of these sites brought a regular income for the Council. At the time a proper study was made of the market value of the sites in order to determine a market related rental and he submitted that the rental was still appropriate.

[20]    
The deponent further submitted that all the agreements were duly and properly entered into and that the renewal clauses contained in the various contracts were standard and were properly so included. He further complained that there were big gaps between the minutes annexed by the Council and that it was therefore impossible to determine what resolutions and recommendations were taken by the Council concerning the sites.

[21]    
Confirmatory affidavits, to that of Mr. Van der Westhuizen, were filed by the 18th and 45th respondents.

[22]    
An affidavit was also filed by the 29th respondent, one Karel Konrad Grunschloss. According to him it became generally known during 1993 that leases of caravan sites at Long Beach were being offered by the Council. At the time he did not know any of the members of the Council nor any of its employees. He made telephonic enquiries and his particulars were taken and he was told that his name, and that of his co-lessee, the 28th respondent, Mr. P.A. Simon, would be entered onto the list of applicants.

[23]    
They were subsequently informed, again by telephone, that a contract of the lease was ready for them to sign. The deponent stated that when he received the signed lease he was not aware of any of the resolutions taken by the Council nor what the rules of internal administration of the Council was. He pointed out that he had no control over such matters and assumed that everything was regular and in order. Confirmatory affidavits, including such from the then Mayor and Town Clerk, were also filed.

[24]    
An affidavit was also deposed to by one Rudolf Nechvile, the 23rd respondent. He stated that he was duly authorised to act on behalf of the 19th, 20th, 22nd