REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: HC-MD-CIV-MOT-GEN-2023/00240
MUNICIPAL COUNCIL FOR THE CITY OF WINDHOEK APPLICANT
and
HALLIE INVESTMENT NUMBER FIVE HUNDREND AND
EIGHTYTWO (PTY) LTD T/A DROOMBOS RESPONDENT
Neutral citation: Municipal Council for the City Of Windhoek v Hallie Investment Number Five Hundred and Eighty Two (Pty) ltd t/a Droombos (HC-MD-CIV-MOT-GEN-2023/00240) [2024] NAHCMD 698 (15 November 2024)
Coram: NDAUENDAPO J
Heard: 19 March 2024
Delivered: 15 November 2024
Flynote: Property – Town Planning Scheme – Consent Usages – Consent granted to operate Guesthouse and conference facility to respondent – Respondent hosting events and functions, contrary to consent use – Applicant seeking to interdict to host events and functions contrary to consent use of property – Requisites for interdict met – Granted.
Noise – Emanating from hosting event and functions – Noise Control Regulations – Applicant seeks interdict – Ambient noise level – No Legislative framework – Interdict refused.
Summary: The applicant, the Municipal Council for the City of Windhoek, granted consent use to the respondent, Hallie Investment Number Five Hundred and Eighty-Two (Pty) Ltd, to operate a guesthouse and conference facility on its land. Instead of operating the guesthouse and the conference facility only, the respondent also hosts events and functions on its property. The applicant seeks an interdict to prevent and restrain the respondent from hosting events and functions.
The applicant also seeks an interdict to restrain the respondent from broadcasting any sound which exceed 55dB (A) during the day, and 45dB (A) at night, or a noise level which exceeds the ambient sound level at the same measuring point by 7dB (A) or more, measured at the appropriate distance from the sources of the sound.
The applicant contends that the consent use granted to the respondent was to operate a guesthouse and a conference facility only. Mr Narib for the applicant submits that having regard to the material terms of the application and the consent use granted, the respondent is not entitled to host events and functions. Mr Jones for the respondent, on the other hand, submits that on a proper and purposive interpretation of the consent use, the respondent is entitled to host functions and events.
The applicant further submits that the events, functions and the traffic cause noise which is in contravention of the Noise Control Regulations. The respondent has no permission from the applicant to cause the noise.
The respondent raised defenses of res judicata and lis pendens. It submits that in a review application brought by the respondent against the applicant before Masuku J, the same issues were raised and overlapped with the issues in this application .It also submits that in an action instituted by the Henles against the respondent, the same relief is sought as in this application. The respondent further submits that the applicant delayed in bringing the application. The applicant submits that issues in the review application, although overlapped, are not the same as in this application and the relief sought is not the same. In the Henles action, the pending legal proceeding is between the Henles and the respondent. There is no lis between the applicant and the Henles.
Mr Narib submits that the noise from hosting of events and functions is in contravention of the Noise Control Regulations and the respondent has no permission from the applicant to cause the noise.
Mr Jones submits that in the absence of any legislative provision providing for a specific sound level, at a specific time, at a specific place within a specific zoning, the reference to 55dB (A) during the day and 45dB (A) at night in prayer 1.2 is arbitrary and has absolutely no legislative or, for that matter, factual foundation.
Held that; although the issues raised in the review application overlapped with the issues in this application, the relief sought in this application is not the same as in the review application and it was not adjudicated upon, accordingly the defense of res judicata is meritless.
Held further that; the Henle action is against the respondent and there is no lis between the applicant and the Henles, accordingly the defense of lis pendens is also meritless.
Held further that; the delay in bringing the application was not in bad faith and the non-compliance is continuous.
Held further that; having regard to the material terms of the application to operate a guesthouse and conference facility and the terms of the consent use granted to respondent, the language used in the consent and the context, the respondent was only entitled to operate a guesthouse and conference facility in terms of the consent use.
Held further that; in the absence of any legislative provision providing for a specific sound level, at a specific time, at a specific place within a specific zoning, the reference to 55dB (A) during the day and 45dB (A) at night in prayer 1.2, is arbitrary and has no legislative or factual foundation and stands to be rejected.
Held further that; prayer 1.1 is granted, prayers 1.2 and the alternative 1.3 are refused.
Held further that; there is no order as to costs.
ORDER
Prayer 1.1 of the notice of motion is granted.
Prayer 1.2 and 1.3 (alternative prayer) are refused.
There is no order as to costs.
The matter is finalised and removed from the roll.
JUDGMENT
NDAUENDAPO J:
Introduction
[1] By notice of motion, the applicant seeks the following relief:
“An order
1.1 Interdicting and restraining the respondent or any other person acting on behalf of the respondent, or any person found on remainder of Portion 41 of the Farm Klein Windhoek Town and Townlands No.70 Windhoek from operating an events or entertainment venue and/or a social or town hall and all related activities in contravention of the conditions applicable to the consent use granted to the respondent in respect of Remainder of Portion 41 of the Farm Klein Windhoek Town and Townlands No. 70, Windhoek.
1.2 Interdicting and restraining respondent or any other person acting on behalf of the respondent, or any person found on Remainder of Portion 41 of the Farm Klein Windhoek Town and Townlands No.70, Windhoek, from broadcasting or in any way causing to be broadcasted any sound whatsoever, single or continuous which exceed 55dB(A) during the day, and 45 dB(A) at night, or a noise level which exceeds the ambient sound level at the same measuring point by 7dBA or more, measured at the appropriate distance from the sources of the sound.
Alternative to prayer 1.2 above
1.3 interdicting and restraining respondent or any other person acting on behalf of the respondent, or any person found on Remainder of Portion 41 of the Farm Klein Windhoek Town and Townlands No.70, Windhoek, from broadcasting or in any way causing to be broadcasted any sound whatsoever, single or continuous which exceed 55dB(A) during the day, and 45 dB(A) at night, or a noise level which exceeds the ambient sound level at the same measuring point by 7dBA or more, measured at the appropriate distance from the sources of the sound, until consent thereto in writing has been obtained from the council of the City of Windhoek in terms of the Noise Control Regulation No. 77/2006.”
The parties
[2] The applicant is the Municipal Council for the City of Windhoek, a juristic person by virtue of s 6(3) of Local Authorities Act, 23 of 1992, with its principal place of business at Municipal Head office, Independence Avenue, Windhoek, Republic of Namibia.
[3] The respondent is Hallie Investment Number Five Hundred and Eighty-Two (Pty) Ltd, a private company with limited liability registered and incorporated as such in terms of the applicable laws of Namibia and which trades as ‘Droombos’ with its principal place of business at Portion R/41, Klein Windhoek Town and Townlands No.70 off the Gababis Trunk Road (“Droombos”).
The application is opposed by the respondent.
Background
[4] At the heart of the protracted dispute between the parties, is the consent use that was granted to the respondent by the applicant in August 2012. The applicant contends that the consent use was to operate a guesthouse and conference facility only, whereas, the respondent contends that, on a proper and purposive interpretation of the consent use, the consent use included the right to host functions and events.
Applicant’s case
[5] Mr Fanuel Ilukena Maanda, the then Acting Chief Executive Officer of the applicant, deposed to the founding affidavit. He contends that Droombos operates on the Remainder of Portion 41 of the Farm Klein Windhoek Town and Townlands No. 70, Windhoek (“the Property”) as a luxury accommodation conference facility, functions and events venue.
[6] The property is zoned undetermined and according to the Windhoek Town Planning Scheme (“the Scheme”), property zoned “undetermined” may be used in accordance with the conditions, boundaries and stipulations of a “consent use” granted by the City of Windhoek.
[7] On or about 28 January 2010, the previous owners of the property applied to the COW for consent to use the said property for an accommodation establishment in the form of a guest house, comprising of 10 rooms as well as a conference facility (“the application”).
[8] In terms of the application, the following were the material terms:
‘8.1 The residential use will remain the dominant use, while the Guesthouse and conference facility will be a subordinate function.
8.2 the planned development is not a hotel, where activities such as a disco or other entertainment could pose a disturbance or undue noise.
8.3 the proposed operations “will not have negative effect on the surrounding area;
8.4 only a small scale accommodation facility is planned, consisting of only 10 rooms… will ensure the noise is kept to a minimum ;( The application is attached hereto as annexure “A”).’
[9] The application was approved and granted subject to various conditions imposed by both the COW and the Roads Authority of Namibia. The decision of COW approving the application is reflected in the Council Resolution 275/08/2012 of 30 August 2012 (“the consent Use”). The material terms (for the purpose of this application) of the resolution were as follows:
‘1 that consent to operate guest house establishment with ten (10) leasable rooms on Portion R/41, Klein Windhoek Town and Townlands No 70, off the Gobabis Trunk Road, be granted in terms of the Resident Occupation Policy, subject to the following conditions;
1.1 That the standard conditions for an accommodation facility be adhered to.
1.2 That a maximum of ten (10) rooms with twenty (20) beds be used for the accommodation establishment.
1.3 That the city reserve the right to revoke the consent, should there be a valid complaint as a result of the guest house and conference facility establishment.’
The respondent accepted the Council Resolution in writing and completed the Form of Acknowledgment of liability and Undertook to pay betterment fees (tax) within twenty eight (28) days from receipt of this Council Resolution.
[10] On or about December 2017, the property was sold to the respondent, who thereafter, began operations under the name ‘Droombos’ and these operation are to a certain degree, contrary to the consent use as Droombos operates as a ‘Social Hall and a Place of Amusement’ as defined in the Windhoek Planning Scheme (“the Scheme”) as opposed to “Accommodation Establishment” as per the Consent Use obtained from the city.
Approved land use
[11] He contends that Droombos was granted consent to operate a guest house establishment in terms of the Resident Occupation Policy, subject to the conditions that the standard conditions for an accommodation facility be adhered to and that a maximum of ten (10) rooms with twenty (20) beds be used for the accommodation establishment.
[12] The Windhoek Town Planning Scheme (“the Scheme”) defines “Accommodation establishment” as follows:
“… means a building which is not a hotel or motel and includes a pension, a caravan park, a guest house, a lodge, a backpackers-lodge and all other establishments referred to in the definitions of accommodation establishment’ in the Accommodation establishments and Tourism Ordinance, 20 pf 1973, as well as the regulations made thereunder, the Liquor Act 6 of 1998 and the Namibian Tourism Act 21 of 2000.’’
[13] The consent use was granted, subject to the following conditions: in terms of Council Resolution 275/08/2012; the right “to operate a guest house establishment” is expressly stated to be in terms of the “Resident Occupation Policy” which confirms the “residential” status of the approval thus granted.
[14] In terms of the Council Resolution 275/08/2012 and consistently with the “Resident Occupation Policy”, the conditions which the council imposed:
14.1 Are intended to protect the immediate neighbours.
14.2 Are to protect the local community in a general sense; and
14.3 Only a small-scale activity such as a guest house establishment, which does not injuriously and adversely affect the neighbours, may be allowed.
[15] He contends that Droombos was granted the right to operate a guest house establishment subject to clause 2 of the Resolution, which provides:
“That consent be effective only, once a parking layout has been provided for on-site parking, to the satisfaction of the Strategic Executive: Transportation and the conditions as per paragraphs 3 to 15 have been fulfilled.
[16] In terms of s 46 of the Scheme, on ‘Binding force of condition imposed” provides:
“(1) Where permission to erect any building, execute any works or to use any building or land for any particular purpose or to do any other act or thing, is granted under the Scheme, and conditions have been imposed, the conditions shall have the same force and effect as if they were part of the scheme.”
[17] On 26 March 2019, the City Urban and Transport Planning Department, addressed a letter to Droombos, informing Droombos that the conference facilities were being operated prior to meeting conditions 3, 5 to 12 and 15 of the Council Resolution 275/08/201. The said letter further informed Droombos that the buildings on its property were without approved building permits.
[18] The letter then advised Droombos as follows:
‘Pursuant to the above you are herewith reminded of condition 1.3 of the said council approval in terms of which the existing consent can be withdrawn in the event of valid complaints and a non-compliance to the condition set at the time of approval.’
[19] Droombos carried out construction activities on the property for purposes of its current operations, which construction activities were outside the scope of the existing building permits and plans. This was raised by the City with Droombos, amongst others, by way of a letter dated 26 March 2019.
[20] Droombos indicated in the 16 April 2019 letter that:
‘4 it should be pointed out that before we purchased the property and the improvements thereon we were presented with the approved building permit(s), approved building plans and other incidental documentation relating to the property (which led us to believe that all regulatory requirements relating to the Consent Use of the property, namely being used as a guest house and conference facility, had been met). If this if in fact not the case we undertake to take the necessary steps, as responsible corporate citizens and in cooperation with the City of Windhoek, to ensure that the Droombos property complies with all city of Windhoek regulations and by-laws. Moreover, after investing a substantial amount of capital in its property N$ 4.8 million (four-eight million Namibia Dollars) we cannot afford any interruption to the operations at the Droombos premises. We therefore reiterate that we will take all the steps necessary to ensure that the Droombos property complies with all applicable regulations and by-laws (if the property does not do so already).’
[21] In a letter dated 29 October 2019, COW informed Droombos of the several contraventions, inter alia, that: ‘events staged on the premises not in line with the consent granted and resulting noise pollution’.
[22] The applicable conditions for the operation of the land use right in terms of clause 1 of the Council Resolution 275/08/2012, which is set in clause 2 of the Resolution, have not been met. Any purported reliance on the right to operate as a guest house, before fulfilling the suspensive conditions, is therefore not legally tenable.
[23] He further contends that, the functions and events hosted at Droombos, in contravention of the consent use, produce noise as a result of loud music and/or public address system. Traffic related noise and noisy guests also contribute to noise impacts.
[24] He states that the Noise Control Regulations, General Notice No. 77 of 30 March 2006, not only prohibit noise nuisance, but it also makes mandatory that an application must be made by Droombos to the City for approval. The noise nuisance, in contravention of the Noise Control Regulations is a criminal offence. It is defined as “means any sound which disturbs or impairs, or is likely to disturb or impair, the convenience, peace, safety or health or any person residing in the municipal area.”
[25] There is currently no approval in place in terms of the Noise Control Regulation. This approval is required for events hosting and recreation activities which are being unlawfully operated on the subject property.
[26] He avers that due to Droombos’ failure to satisfy the conditions of the Council Resolution 275/08/2012 of 30 August 2012, Droombos is operating unlawfully in hosting functions and events which cause not only noise pollution, but are hosted in buildings and structures which falls outside the scope of the Consent Use granted to Droombos.
[27] He submits that despite the consent use relating to a guest house and conference facility, Droombos operates a social hall and a place of amusement wherein it hosts events and has unlawfully converted a residential development into an events venue and other use without the requisite approval by the City. Droombos facility comprises of two large hall venues; a restaurant, 10 luxury accommodation units a swimming pool reception and entertainment area etc.
[28] He states that no land use approval in terms of the Scheme has been granted to Droombos to operate: “two large hall venue”, “entertainment area”, “restaurant”; and “events venue”.
[29] He submits that Droombos contends that the Fitness Certificate issued to it on 9 April 2019 authorise Droombos to host events and functions. This Certificate of Fitness expired on 9 April 2020 and Droombos may no longer rely on it. In any event, the Fitness Certificate did not authorise hosting of events and functions, as more fully set out below.
Fitness Certificate
[30] In relation to certificate of fitness, the following are relevant:
30.1 Certificate of Fitness/Registration
30.1.1 issued date 08 February 2019;
30.1.2 expiry date 22 October 2019;
30.1.3 “nature” – “Guest house”
30.1.4 “restricted to” – “Selling liquor with licence”.
30.2 Certificate of Fitness/Registration
30.2.1 issue date 09 April 2019;
30.2.2 expiry date 09 April 2020;
30.2.3 “nature” – “Administrative office”
30.2.4 “restricted to” – “hosting events and function”
[31] He states that a certificate of fitness is issued in terms of:
31.1 The General Health regulations (G.N 121 of 1969) these regulations are attached hereto and marked as Annexure “FM2”
31.2 The Regulation relating to the Registration of Businesses GN 202 of 2006;
31.3 The Informal Trading Regulations 200 of 2007; and
31.4 The Liquor Act No. 6 of 1988.
[32] The General Health Regulations defines an “accommodation establishment” as follows:
“….bears the same meaning as assigned thereto in the Accommodation Establishment Ordinance, 1967 (Ordinance 29 of 1967)”
[33] He contends that it is vital to point out that the General Health Regulations makes a certificate of fitness subject to compliance with other laws. It specifically, in Regulation 2 provides that:
“2. These regulation lay down minimum requirements and standards and shall be deemed to be in addition to, but not in substitution for, any regulation in force within the district of the local authority, except where such regulation is in conflict or inconsistent with these regulations, or lay down requirements and standards which are lower than those required by these regulations, in which case the provisions of these regulations shall prevail.”
[34] Regulation 174(1) of the General Health Regulations also makes the land use rights a pre-condition to the validity of a Certificate of Fitness. The regulation 174(1) provides as follows:
“174. (1) No person shall carry on the business of a hotel or boarding house or lodging house in or on any premises, unless he has had such premises registered in advance with the local authority for this purpose. The local authority issue to the applicant the certificate of registration applied for only if such application is accompanied by a certificate of fitness in accordance with regulations 175 and 176.”
[35] He contends that Droombos may, therefore, not rely on the alleged registration/designation in the Certificate of Fitness as conferring a land use right for “hosting events and function”. The “nature” of the activity in respect of which the certificate was granted is clearly stated to be “Administrative Office.”
[36] In terms of the Regulations relating to the Registration of Businesses:
36.1 a “certificate of fitness” means a certificate of fitness issued in terms of regulation 5 by the Environmental Health Officer in respect of a business premises;
36.2 a “certificate of fitness” means a valid certificate of registration issued in terms of regulation 7 by the Registration Officer in respect of the conducting of business on a business premises.
[37] He contends that the validity of the Certificate of Fitness/Registration, such as issued at Droombos, must be determined in terms of regulation 15(1) of the Regulations relating to the Registration of Businesses which requires that:
“[where] such premises fails to comply with any provision of these regulations or is in conflict with any provision relating to public health and safety or relating to any town planning scheme or township condition applicable to that premises, such inspecting officer must give notice to the holder of the certificate of fitness or the certificate of registration, as the case may be, of such failure and call upon such holder of the certificate of fitness or certificate of registration to comply with the requirements of the notice within the time specified in such notice.”
[38] In the consideration of an applicant for Business Registration/Certificate of Fitness/Registration in terms of the Regulations relating to Registration of the businesses, regulation 5(2) (a) requires of the Environmental Health Officer to take into account if the:
“….type of business applied for on the business premises is in conflict with any laws relating to public health and safety or is in conflict with any town planning scheme or township condition, applicable to that premises.”
[39] He contends that as per Regulation 2 of the General Health Regulations, the “hosting events and function” which is reflected in certificate of fitness is not “in substitution for, any regulation in force within the district of the local authority.” The scheme’s requirement for an appropriate land use right cannot be substituted or extended on the basis of what is contained in a certificate of fitness.
[40] The reliance by Droombos on the Certificate to circumvent Consent Use, is misplaced and due to no land use application having been made by Droombos to operate a “social hall”, special building, or place of amusement on the property, the use of the two large hall venues, and the subject property as an entertainment area or/and events venue or other used are in contravention of the Scheme.
Review proceedings instituted by Droombos
[41] Droombos approached this court under review proceedings and sought an order reviewing and setting aside certain decisions taken by the City together with declaratory relief wherein Droombos sought orders to firstly, declare that para 1.3 of the consent use be set aside, secondly, that Droombos may operate an accommodation facility, operate a conference facility establishment, operate facility where events and functions may be hosted and a facility which falls within the definition of a social hall’ as defined by the City’s Town Planning Scheme, promulgated under the Town Planning Ordinance and thirdly, an order that the Consent Use, read with the Droombos’ liquor licence, permits Droombos to host conferences, events and functions from Monday to Sundays and to sell liquor during those days between 14h00 and 02h00.
[42] The court in those proceedings noted that Droombos approached the court to seek clarity from the court regarding the land use rights it has in law in relation to the property in question.
[43] The court per Masuku J, declared that the language employed in clause 1.3 is too wide, subjective, sweeping and far-reaching in its nature and possibly its effect and Clause 1.3 of the consent use was accordingly set aside.
[44] The court however declined the remaining two declaratory relief sought by Droombos and in declining the declaratory sought, the court held that in granting those orders, the court would in effect be legislating and determining what land rights may be allowed on the property in question and that falls beyond the remit of the court’s powers.
[45] The Consent Use granted to Droombos remain in relation to a guest house and conference facility establishment and does not authorise Droombos to conduct events and functions on the property.
Action proceedings instituted against Droombos – the Henle proceedings
[46] On or about 14 July 2022, Mr and Mrs Henle, the owners of Portion 109, Klein Windhoek Town and Townlands No. 70 and neighbours of Droombos instituted action proceedings against Droombos, whereby they sought mostly interdictory relief against Droombos and a review order relating to the Road Authority in terms of its decision of 18 January 2016.
[47] The plaintiff in the Henle matter seeks, inter alia, the following relief:
‘47.1 An order interdicting and restraining the first defendant, or any other person acting on behalf of, employed by or any person found on Portion R/41, from operating in any manner whatsoever, conducting the business known as Droombos, including but not limited to the operation of a Lodge/Bed and Breakfast/restaurant, events or function facility, without the written consent of the Council of the Municipality of Windhoek granting such specific rights and the latter having specified in writing, which must be produced by the first defendant on demand by the plaintiffs, that all the conditions set out in the municipality’ conditional approval of 30 August 2012 relating to such rights have been fully fulfilled.
47.2 An order interdicting and restraining the first defendant, or any other person acting on behalf of, employed by or any person found on Portion R/41, from operating in any manner whatsoever, receiving private or public guest relating to the business known as Droombos including but not limited to the operation of a Lodge/Bed and Breakfast/restaurant, events or function facility, without the written consent of the Council of the Municipality of Windhoek granting such specific rights and the latter having specified in writing, which must be produced by the first defendant on demand by the plaintiffs, that all the conditions set out in the municipality’ conditional approval of 30 August 2012 relating to such rights have been fully fulfilled.
47.3 An order interdicting and restraining the first defendant, or any other person acting on behalf of, employed by or any person found on Portion R/41, from broadcasting or in any way causing to be broadcasted any sound whatsoever, single or continuous which exceeds 55dB(A) during the day, and 45 dB(A) at night, or noise level which exceeds the ambient sound level at the same measuring point by 7 dBA or more, measured at the appropriate distance from the source of the sound, until consent thereto in writing has been obtained from the Council of the City of Windhoek in terms of the Noise Control Regulations No.77/2006 and the latter has specified in writing, which must be produced by first defendant on demand by the plaintiffs, that all the conditions set out therein have been fulfilled.’
[48] As far as required, that condonation be granted to the plaintiff for the delay in applying to set aside the RA’s decision on 18 January 2016 waiving its initial decision dated 16 August 2010, and an order seeing aside and declaring a letter by the Road Authority dated 18 January 2016, retracting its prior letter dated 16 August 2010 in respect of the Trunk Road 0601: Access to Portion 41 of Klein Windhoek Town and Townlands No.70: Windhoek, unlawful.
Droombos continued contravention of the content
[49] He contends that despite the court’s refusal of the declaratory orders sought by Droombos to declare which land rights are allowed on the property, and despite the City’s insistence that the consent use relates to a guest house and conference facility establishment, Droombos continue to operate events on the property contrary to the consent use.
[50] On 14 April 2023, the City issued Droombos with a “Notice of cease unauthorised land use activities on remainder portion 41 of the farm Klein Windhoek Town and Townlands No. 70”.
[51] In its response to the above notice, Droombos asserts that the court’s refusal to exercise its discretion and/or to grant the declarators sought does not mean that Droombos’ rights in respect of the property were altered and that Droombos has less rights in respect of the property than before it sought clarity from the court.
[52] Despite Droombos’ denial of conducting unauthorised land uses on the property, Droombos continues to host events contrary to the consent use.
[53] He contends that between the periods of 11 May 2023 to 27 May 2023, Droombos advertised various events and functions, to be hosted at the property, which events and functions are contrary to the Consent Use. It is apparent that these events and functions were accompanied by noise pollution, use of alcohol and entertainment. These advertisements relate to the following events:
53.1 Droombos wine festival which was slated for 11 May 2023, the event was accompanied by live music and consumption of exquisite selection of wines and more.
53.2 Launch of the “RaZul.nam, a luxury sparkling wine label” which was slated for 12 May 2023.
53.3 “Mom’s Day Off” which was slated for 13 May 2023 and also accompanied by loud music and consumption of alcohol and other beverages as well as food.
53.4 “Radio Waves & Droombos Mother’s Day Picnic 2023” which was slated for 14 May 2023. This event was also accompanied by food, drinks and entertainment.
53.5 “John Rock Prophet” public event which was slated for 25 May 2023 accompanied by live acoustic music
53.6 “Droombos Market” which was slated for 27 May 2023, which was also a public event.
[54] He states that invariably, these events are accompanied by the gathering of a large crowd of people, use of sound amplifying equipment for entertainment purposed, loud music, use of alcohol and accompanying noise pollution. It also lead to traffic congestion. Droombos is determined to continue to host these events, if regard is had to their letter of 9 May 2023.
Clear right
[55] He contends that the COW has established a clear right to demand that Droombos ceases to operate activities on the property in contravention of the Consent Use granted by the City. Droombos is acting unlawfully and threatens to continue to do so. It does not have a right to operate a social hall or a place of amusement nor to host events, and to entertain large crowds of people.
[56] Its consent use was granted pursuant to an application, the material terms of which were that a residential use would remain the dominant use and conference facility would remain subordinate functions. Disco or other entertainment was specifically excluded and only a small scale accommodation facility consisting of 10 rooms was applied for.
Respondent’s case
[57] Mr van der Merwe deposed to the answering affidavit on behalf of the respondent. He avers that the relief sought in this application is also the relief sought in the action proceedings pending before this court in case number HC-MD-CIV-ACT-OTH-2022/03021. The parties are the same as in the action proceedings, the cause of action is the same as well as the relief sought and therefore, the matter is lis pendens.
[58] He also avers that the matter is res judicata as the parties in the review application were the same, the same issues raised in the review were also raised in this action and were decided by the court in the review application.
[59] In the alternative, the applicant is estopped from persisting with this application because the parties are the same as in the review and the same or essentially the same issues of fact and or law currently under consideration in this application arose and were finally determined in the Review application by a court with competent jurisdiction.
[60] The applicant gave the respondent consent to operate a guesthouse establishment with 10 (ten) leasable rooms and 20 beds to be used for the accommodation establishment on Portion R/41, Klein Windhoek Town and Townlands No. 70, off the Gobabis trunk road. This consent included the operation of a conference facility and was subject to the following condition as set out in Council Resolution 275/08/2012 of 30 August 2012.
60.1 “that the standard conditions for an accommodation facility be adhered hereto” (vide condition 1.1)
60.2 “That maximum of 10 (ten) rooms and 20 (twenty) beds be used for the accommodation establishment (vide condition 1.2)
60.3 “That the Council resolution be accepted in writing and that the form of acknowledgement and liability and undertaking to pay betterment fees (tax) within 28 (twenty eight) days from receipt of the resolution be completed in writing” (see clause 17).
The aforementioned conditions were accepted in writing as required by clause 17 of DB3.
[61] The consent use on a proper and purposive interpretation also included the right to host events and functions.
[62] He contends that the Land (on which Droombos operates) is zoned – in terms of the Scheme as Undetermined, and as such has no primary use, no prohibited use and is able to be used for all ‘consent uses’. This, therefore, means that the Land can only be used in terms of a consent granted by the applicant (and without such consent not used for any purpose at all).
[63] In the review application brought by the respondent, it also sought (review) a declaration that the consent use granted a valid consent to Droombos to:
63.1 Operate an accommodation facility as contemplated by the Consent and situated outside Avis, Windhoek on a portion of Portion R/41, Klein Windhoek Town and Townland No.70 (“the land”).
63.2 Operate a conference facility establishment on the land;
63.3 Operate a facility on the land whereby the respondent hosts events and functions;
63.4 Operate a facility on the land which falls within the definition of a “Social Hall” as defined by the current Scheme promulgated under the Ordinance.
[64] It also sought a declaration that the consent read with the respondent’s current liquor licence permits it to host conferences, events and functions on Mondays to Sundays and to sell liquor on those days between 14h00 and 02h00.
[65] Pursuant to this, the Review Court then ordered that:
‘1. The decision taken by the first respondent’s officials dated 29 October 2019, 5 December 2019, 24 January 2020 and 14 February 2020 and recommendation made on 5 November 2020, as well as a resolution passed by the first respondent’s management committee on 12 November 2020, be and are hereby reviewed and set aside.
2. The several notices issued in terms of section 56 of the Criminal Procedure Act, 1977 by the first respondent’s municipal police, be and are hereby reviewed and set aside.
3. Paragraph 1.3 of the Consent contained in Resolution 275/08/2012 granted the first applicant by the first respondent during 2012 is hereby declared to be unlawful or ultra vires and is set aside.
4. The declaratory relief regarding the Consent allowing the applicant to operate an accommondation facility; a conference facility establishment and to operate a facility which falls within the definition of a ‘social hall’ as defined in the Windhoek Town Planning Scheme promulgated under the Town Planning Scheme, is hereby refused.
The declaratory relief to the effect that the consent use read with the first applicant’s liquor licence permits the first applicant to host conferences, events and functions from Monday to Sundays and to sell liquor on those days, between 14h00 and 02h00, is refused.’
[66] He avers that Droombos was issued with a Certificate of Business Registration on 9 April 2019. In terms of this registration, the respondent based on its application for a certificate of fitness to host events and functions- was granted such authority.
[67] This reinforced the respondent’s right in terms of an existing authority as per the Council consent granted on 30 August 2012, to engage in such activities. He avers that at the very least it reinforced or established the clear basis for a legitimate expectation that it was entitled to engage in and conduct such activities on its business premises.
[68] He contends that the applicant unreasonably delayed in launching this application. The applicant participated in the review proceedings but never sought the relief that it now seeks by way of a counter application in those proceedings, despite the complaints that they rely on having supposedly been live issues at the time.
[69] The delay in the circumstances (of the continuing investment and development in and of Droombos) is unreasonable and the enforcement of the right sought by the applicant would really be an act of bad faith and cause great inequity.
[70] Droombos does not dispute that it operates a luxury accommodation and events venue, as it is entitled to do in terms of the consent use and the Business Registration Certificate.
[71] He submits that in any event upon a proper and purposive interpretation of the consent use, it is clear that when granting the consent the applicant envisioned the operation of a conference facility, understood what a conference facility offering included and expressly provided for this in the conditions attached to the Consent Use. He based that assertion on the fact that the conditions imposed in paragraph 6 to 11 would not have been imposed if Droombos was going to be operated solely as an accommodation establishment, to the exclusion of a conferencing and events facility.
[72] He contends that the certificate of fitness issued by the applicant contemplated Droombos hosting events and functions.
[73] He contends that the definition of an “accommodation establishment” in the Scheme does not exclude conference facilities and the hosting of events.
.
[74] The Land is clearly zoned Undetermined as provided for in Part x1 in Table B of the Scheme and as such the Consent Use is not limited (as in a residential zoning) but instead is open to all uses, which include inter alia using the land as an accommodation establishment, facilitating conferences and for hosting of events and functions, as Droombos currently does.
[75] Droombos is acting within its Consent Use, and he denies that the respondent has not complied with the conditions set out therein. From the heading of the Consent Use it is clear that the applicant was to operate as a “guesthouse establishment and a conference facility”.
A “conference facility” is not at all defined in the “Town Planning Scheme clauses”.
[76] He denies that the levels of noise generated by Droombos’ operations are excessive or offensive or that they infringe the provisions and conditions contained in the Consent Use. As evident from the Consent Use itself, no measureable standard/level is included.
[77] In any event the deponent fails to, firstly, demonstrate what acceptable noise levels may be on a property zoned Undetermined with an “all use” consent use and, more importantly, fails to provide herein or at any juncture before, any proof of the alleged infringement by the respondent of these acceptable noise levels. In the absence of any evidence whatsoever that the respondent’s operations are noisy and the extent thereof the allegations in this regard become speculative at best, unproven, and also essentially amount to hearsay and thus stand to be disregarded.
[78] The applicant failed to adduce actual evidence that Droombos is contravening any regulations or broadcasting any sound which it is not entitled to do. In any event the allegations in paragraph 23, unless the deponent has personal knowledge (which is not evident from his affidavit), are hearsay and stand to be disregarded.
Issues for determination
[79] The following are the issues for determination:
[80] Has the respondent made out a case for the special pleas/defences of Res judicata and Lis pendens? Was there an unreasonable delay in launching the application?
[81] Is the Respondent/Droombos entitled to host functions and events on the property as per the consent use granted to it?
[82] Is the applicant entitled to an interdictory relief in relation to the noise level emanating from Droombos?
Submissions on behalf of applicant
Res Judicata
[83] Mr Narib submitted that the court, in the review proceedings, further declined the declaratory relief sought by the respondent that it is declared that the consent, read with the respondent’s liquor license, permits the respondent to host conferences, events and functions on Mondays to Sundays and to sell liquor on those days between 14H00 and 02H00. That relief was declined on the basis that the court did not wish to usurp the powers of the applicant1.
[84] Mr Narib further argued that it is common cause that the applicant did not, in the review proceedings, file a counter application and as such could not obtain relief from the court. The relief sought in these pending proceedings is not the same relief that the respondent sought in the review proceedings2.
[85] He argued that the respondent succeeded in obtaining relief from the court setting aside the decision to withdraw the Consent Use and to cease all activities at the property.3 Yet, the respondent keeps on operating as if it has the rights it sought pursuant to the above declaratory relief, which was declined. He submitted that it is this persistent conduct which the applicant seeks to interdict.
[86] He argued that the applicant is not precluded from seeking interdictory relief based on the facts as set out in the founding affidavit. The fact that some of the facts may be intertwined with those in the review proceedings does not preclude the applicant from relying on such facts to seek the interdictory relief and does not render the matter res judicata.
[87] Mr Narib referred this court to Fish Orange Mining Consortium (Pty) Ltd v Goaseb and Others4 at para 44 where Mainga JA stated the following, is apposite:
“The parties to the two suits were the same and the factual background to sustain the relief sought in the respective suits were the same but it cannot be said that the same thing was claimed in the respective suits, nor was reliance placed on the same cause of action. As was correctly stated in the National Sorghum Breweries case above, the mere fact that there are common elements in the allegations made in the two suits does not justify the exception – one must look at the claim in its entirety and compare it with the first claim in its entirety. If this is done in the present case, the differences are so wide and obvious that one simply cannot say that the same thing was claimed in both suits and that the claims were brought on the same cause of action.”
[88] He submitted that in the above matter the Supreme Court made it clear that the court envisaged a broader approach in deciding whether the res judicata should be upheld. It held that the disputed claim should be looked at holistically in comparison with the first claim. The fact that there are common elements in the allegations made in the two suits does not per se justify the exception5.
[89] Mr Narib argued that for the respondent to succeed with its special plea of res judicata, the respondent should show that the same cause of action between the same parties (or their successors in title), concerning the same subject matter and founded upon the same cause of complaint has been tried and a final judgment has been delivered. Thus, a plea of res judicata will succeed if it was established also that a matter in a subsequent case formed an integral part of the determination in the earlier case6.
[90] Quoting with approval from the judgment of Steyn CJ, in African Farms & Townships Ltd7, the Supreme Court, in Fish Orange Mining Consortium (Pty) Ltd v Goaseb and Others 8 said the following in regard to the principle of res judicata9:
“The rule appears to be that where a court has come to a decision on the merits of a question in issue, that question, at any rate as a causa petendi of the same thing between the same parties, cannot be resuscitated in subsequent proceedings.”
[91] Mr Narib contended that the issue up for determination in the present matter was not before Justice Masuku, in the review proceedings and as such the applicant is not precluded from pursing the reliefs it seeks in these proceedings.
[92] He argued that none of the facts on the basis of which relief is sought were determined by the court against the applicant. Rather, the court confirmed the applicant’s rights to impose conditions and to grant or to refuse to grant the right to the respondent to operate in the manner that it does10.
Lis Pendens
[93] Mr Narib argued that the respondent’s contention that there is an action pending under case number: MD-CIV-ACT-OTH-2022/03021 (the action proceedings) where same relief is sought11 and as such the matter is lis pendens, is ill-conceived as the Applicant is cited in those proceedings as a defendant, the predicate for the relief is entirely different and there is no suggestion whatsoever that plaintiffs are seeking to enforce their public law duties. Rather, Plaintiff’s cause of action in those proceedings are founding on neighbour laws and nuisance laws12, whereas the Applicant in the present proceedings seek to enforce public law duties of the Respondent. No lis is pending in those proceedings between the Applicant and the Respondent. The lis there is between the Plaintiffs in those proceedings and the Respondent. There is thus no basis for such a special plea of lis pendens, in these proceedings.
[94] He argued that both special pleas should, in his respectful submission, be dismissed with costs, and the court should mark its displeasure by imposing a special costs order as the special pleas are devoid of any merit.
Non-Joinder
[95] On Monday, 11 March 2024, at noon, the applicant’s counsel indicated to us that the respondent is not persisting in its special plea of non- joinder. Except for the costs occasioned by this, yet again, unmeritorious special plea, nothing more needs to be said about it. The respondent should bear the costs occasioned by this special plea, until noon on 11 March 2024. We record that junior counsel’s draft was at hand when the call was received.
Approved land use
[96] Mr Narib contended that the Respondent was granted consent to operate a guest house establishment in terms of the Resident Occupation Policy13, subject to the conditions that the standard conditions for an accommodation facility be adhered to and that a maximum of ten (10) rooms with twenty (20) beds be used for the accommodation establishment. That was in terms of Council Resolution 275/08/2012 of 30 August 2012.
[97] He submitted that the land for which the consent use was issued is zoned undetermined and thus may be used only in accordance with the consent use which is granted, and the terms thereof are contained in the consent so granted.
[98] Mr Narib submitted that the Windhoek Town Planning Scheme14 (“the Scheme”) defines “Accommodation establishment” as follows:
“… means a building which is not a hotel or motel and includes a pension, a caravan park, a guest house, a lodge, a backpackers-lodge and all other establishments referred to in the definitions of 'accommodation establishment' in the Accommodation Establishments and Tourism Ordinance, 20 of 1973, as well as the regulations made thereunder, the Liquor Act 6 of 1998 and the Namibian Tourism Act 21 of 2000.”
[99] He further argued that In terms of the applicant’s resolution the right “to operate a guest house establishment” is expressly stated to be in terms of the “Resident Occupation Policy” which confirms the “residential” status of the approval thus granted.
[100] Mr Narib submitted that in fact, in the application,15 which was submitted in respect of the property, dated 28 January 2010, it was stated by the applicant that:
“the proposed operations “will not have negative effect on the surrounding area”;
“only a small scale accommodation facility is planned, consisting of only 10 rooms will ensure the noise is kept to a minimum”;
“the owners will ensure that no noisy or other activities take place at their Guesthouse”; and
“services will be provided to the municipal specifications to ensure everything is to their standards”.
“The planned development is not a hotel, where activities such as a disco or other entertainment could pose a disturbance or undue noise.”
“Since it will be consent use, Council may revoke the consent should problems occur which cannot be solved.”
[101] Mr Narib submitted that accordingly, consequent to the application by the then owners of the property, the applicant, in terms of the Council Resolution 275/08/2012 and consistently with the “Resident Occupation Policy”, imposed conditions which16:
are intended to protect the immediate neighbours;
are to protect the local community in a general sense; and
only any small-scale activity such as a “guest house establishment”, which does not injuriously and adversely affect the neighbours, may be allowed.
Conditions of consent use not met by respondent
[102] Mr Narib contended that in terms of s 45 of the Scheme, on “Council may impose conditions on granting consent” reads:
“(1) In giving its approval, authority, permission or consent under any clause in this Scheme, Council may impose such conditions as it deems necessary, including conditions relating to the management of the approved activity, such as an environmental management plan which outlines the processes and procedures for minimising or mitigating, or preventing the adverse effects of activities on the environment, inclusive of the possible pollution of groundwater recharge areas or groundwater or both.”
[103] Mr Narib referred to s 46 of the Scheme, on “Binding force of conditions imposed” provides:
“(1) Where permission to erect any building, execute any works or to use any building or land for any particular purpose or to do any other act or thing, is granted under the Scheme, and conditions have been imposed, the conditions shall have the same force and effect as if they were part of the scheme.”
[104] Mr Narib further submitted that In terms of condition 14 of the conditions to the Consent Use, condition 14 expressly provides that the plans must be approved “before the guest house becomes operational”, the respondent only submitted Wastewater and Sewerage effluent management plans to the City for approval and comments on 12 April 2019. This aspect is not dealt with in the answering affidavit and must be taken to be admitted.
Unauthorized use of the property
[105] Mr Narib further argued that the Respondent, contrary to the Consent Use, conducts business as a guesthouse with restaurant facilities and a conference and event and function facility under the name Droombos.17
[107] Mr Narib submitted that Droombos has failed to comply with the Council Resolution 275/08/2012 of 30 August 2012, which granted the land use approval in respect of Droombos and continues to operate in contravention of the Consent Use.
[108] Mr Narib further submitted that despite the Consent Use relating to a guest house and conference facility, the respondent operates a social hall and a place of amusement, wherein it hosts events and has unlawfully converted a residential development into an events venue and other uses without the requisite approval by the Applicant. Mr Narib argued that no land use approval in terms of the Scheme has been granted to Droombos to operate. The Respondent contends that the definition of ‘accommodation establishment’ in the Scheme does not exclude conference facilities and the hosting of events18, that is wrong according to Mr Narib.
[109] Mr Narib further argued that the Respondent further contends that the Fitness Certificate issued to it on 09 April 201919 authorises it to host events and functions. This Certificate of Fitness expired on 09 April 2020 and Droombos may no longer rely on it. In any event, the Fitness Certificates did not authorise hosting of events and functions, as more fully set out below.
[110] He argued that a Certificate of fitness is issued in terms of:
the General Health Regulations (G.N. 121 of 1969)20;
the Regulations relating to the Registration of Businesses GN 202 of 2006;
the Informal Trading Regulations 200 of 2007; and
the Liquor Act No. 6 of 1988
The General Health Regulations defines an "accommodation establishment" as follows:
“… bears the same meaning as assigned thereto in the Accommodation Establishments Ordinance, 1967 (Ordinance 29 of l967)”
[109] Mr Narib contended that It is vital to point out that the General Health Regulations makes a certificate of fitness subject to compliance with other laws. It specifically, in Regulation 2, provides that:
“2. These regulations lay down minimum requirements and standards and shall be deemed to be in addition to, but not in substitution for, any regulation in force within the district of the local authority, except where such regulation is in conflict or inconsistent with these regulations, or lay down requirements and standards which are lower than those required by these regulations, in which case the provisions of these regulations shall prevail.”
[110] He further submitted that Regulation 174(1) of the General Health Regulations also makes the land use rights a pre-condition to the validity of a certificate of fitness. The regulation 174(1) provides as follows:
“174. (1) No person shall carry on the business of a hotel or boarding house or lodging house in or on any premises, unless he has had such premises registered in advance with the local authority for this purpose. The local authority issue to the applicant the certificate of registration applied for only if such application is accompanied by a certificate of fitness in accordance with regulations 175 and 176.”
Therefore, the Respondent may not rely on the alleged registration/designation in the certificate of fitness as conferring a land use right for “hosting events and function”. The “nature” of the activity in respect of which the Certificate was granted is clearly stated to be “Administrative Office.”
[111] Mr Narib further argued that, in terms of the Regulations relating to the Registration of Businesses:
a “certificate of fitness” means a certificate of fitness issued in terms of regulation 5 by the Environmental Health Officer in respect of a business premises;
a “certificate of registration” means a valid certificate of registration issued in terms of regulation 7 by the Registration Officer in respect of the conducting of a business on a business premises.
[112] He further submitted that the validity of the certificate of fitness/registration, such as issued to the Respondent, must be determined in terms of regulation 15(1) of the Regulations relating to the Registration of Businesses which requires that:
“[where] such premises fails to comply with any provision of these regulations or is in conflict with any provision relating to public health and safety or relating to any town planning scheme or township condition applicable to that premises, such inspecting officer must give notice to the holder of the certificate of fitness or the certificate of registration, as the case may be, of such failure and call upon such holder of the certificate of fitness or certificate of registration to comply with the requirements of the notice within the time specified in such notice.”
[113] Mr Narib further argued that in the consideration of an application for Business Registration / certificate of fitness / Registration in terms of the Regulations relating to the Registration of Businesses, regulation 5(2)(a) requires of the Environmental Health Officer to take into account if the:
“… type of business applied for on the business premises is in conflict with any laws relating to public health and safety or is in conflict with any town planning scheme or township condition, applicable to that premises.”
[114] He submitted that As per regulation 15(1) of the Regulations relating to the Registration of Businesses, there is therefore a “conflict with [the] town planning scheme or township condition applicable to” the Respondent’s Property.
[115] Mr Narib argued that as per Regulation 2 of the General Health Regulations, the “hosting events and function” which is reflected in certificate of fitness is not “in substitution for, any regulation in force within the district of the local authority”. The Scheme’s requirement for an appropriate land use right cannot be substituted or extended on the basis of what is contained in a certificate of fitness. He contended that the Respondent’s reliance on the Certificate to circumvent the Consent Use is misplaced and due to no land use application having been made by the Respondent to operate a “social hall”, “special buildings” or “place of amusement” on the Property, the use of the “two large hall venues”; and the subject property as an “entertainment area” or/and “events venue” or other uses are in contravention of the Scheme.
Violation of noise control regulations
[116] Mr Narib argued that the functions and events hosted by the Respondent on the Property, in contravention of the Consent Use, produce noise as a result of loud music and/or public address systems. Traffic related noise and noisy guests also contribute to noise impacts.
[117] He further submitted that the Noise Control Regulations, General Notice No. 77 of 30 March 200621, not only prohibits noise nuisance, but it also makes mandatory that an application must be made by the Respondent to the Applicant for approval.
[118] He argued that Noise nuisance, in contravention of the Noise Control Regulations is a criminal offence. It is defined as “means any sound which disturbs or impairs, or is likely to disturb or impair, the convenience, peace, safety or health of any person residing in the municipal area”.
[119] He submitted that there is currently no approval in place in terms of the Noise Control Regulations. This approval is required for the events hosting and recreation activities which are being unlawfully operated on the Property.
[120] He submitted that due to the Respondent’s failure to satisfy the conditions of the Council Resolution 275/08/2012 of 30 August 2012, the Respondent is operating unlawfully in hosting functions and events which cause not only noise pollution but are hosted in buildings and structures which fall outside the scope of the Consent Use granted to the Respondent.
Interpretation of the Consent Use
[121] Mr Narib argued that The words in the Consent Use are clear, plain and unambiguous and so they should be given their literal and grammatical meaning and, that will not lead to any manifest absurdity, inconsistency, hardship or a result that is contrary to the Applicant’s intent and purpose when it issued the Consent Use to the Respondent.
[122] He further submitted that despite the unambiguity of the wording in the Consent Use, the Respondent seeks to lend an interpretation to the Consent Use that would lead to an absurdity. The Respondent contends that the conditions imposed in paragraph 6 to 11 of the Consent Use would not have been imposed if Droombos was going to be operated solely as an accommodation establishment, to the exclusion of conferencing and event facility.
[123] He argued that the fact that the definition of an “accommodation establishment” in the Scheme does not exclude conference facilities and the hosting of events, does not mean that these activities are included. Conference facilities certainly do not include hosting of events and a town hall or other land uses.
[124] He stated that the absurdity that would indubitably be begotten by the interpretation put forth by the Respondent is this. Once the Applicant imposes conditions that relate to traffic and roads requirements to a Consent Use, it is automatically accepted that such traffic and roads requirements entitle an applicant in terms of a consent use to host functions and events on the subject property, despite the nature of the application for the intended use of the property zoned “undetermined”. The Applicant could not have intended such absurd result.
[125] Mr Narib referred this court to Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC22 the Supreme Court authoritatively lays down the principles applicable to the interpretation of documents. O’ Regan, who delivered the court’s judgment accepted that:
‘[18] Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed; and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighted in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business-like for the words actually used.’
The learned judge proceeded and said:
‘[23] ... context is an important determinant of meaning. It also makes plain that interpretation is 'essentially one unitary exercise' in which both text and context, and in the case of the construction of contracts, at least, the knowledge that the contracting parties had at the time the contract was concluded, are relevant to construing the contract. This unitary approach to interpretation should be followed in Namibia.
[24] The approach adopted here requires a court engaged upon the construction of a contract to assess the meaning, grammar and syntax of the words used, as well as to construe those words within their immediate textual context, as well as against the broader purpose and character of the document itself. Reliance on the broader context will thus not only be resorted to when the meaning of the words viewed in a narrow manner appears ambiguous. Consideration of the background and context will be an important part of all contractual interpretation.’
[126] Mr Narib argued that once the conditions of the Consent Use are considered against the background and context that led to the Consent Use being issued to the Respondent,
[127] He contended that the background and context that this Honourable Court needs to consider is the application submitted( containing material terms) to the Applicant by the then owners of the Property, which application culminated in the Consent Use being issued.
[128] He argued that from a consideration of the material terms of the application, read together with the conditions imposed on the Property in terms of the Consent Use, the following is evident:
At the application stage, it was never the intention of the erstwhile owners of the Property to host events of functions on the Property, as a matter of fact, the owners undertook that the planned development is not a hotel, where activities such as a disco or other entertainment could pose a disturbance or undue noise;
At the approval of the application stage and issuance of the consent use, it was never the Applicant’s intention consent or authorise for events and functions to be hosted on the Property;
It was always the erstwhile owner’s intention for residential use of the Property to remain the dominant use, while the Guesthouse and conference facility be a subordinate function;
It was the erstwhile owner’s undertaking that the owners of the Property would ensure that no noisy or other activities take place at the Guesthouse.
Import of the Scheme
[129] Mr Narib submitted that it is axiomatic that continued breaches of the Scheme cannot be countenanced. In Roland23 the Supreme Court affirmed the import of the Scheme to be to protect the interest of the inhabitants of the area to which it applies, to impose both obligations and rights on such inhabitants, that is for them to comply with the Scheme unless they obtain authorization to depart from it and to expect and demand compliance with the Scheme both by the Municipality and their surrounding neighbours.
The Supreme Court went on to state that the purpose of the Scheme24 and the benefits of complying with its extent beyond financial interests of land owners and determines wide range of matters that may not have ascertainable financial value including safety, health, amenities and convenience. Neighbours are accordingly entitled that the Scheme would be observed.
[130] He further argued that as has been demonstrated above, the Respondent has not applied for and did not obtain rights to operate an entertainment venue or a social hall on the subject property. The application dated 28 January 2010, in terms of which the consent use in respect of the subject property was sought specifically excluded this possibility.
Interdictory relief
[131] Mr Narib submitted that the requisites for final relief are well established in our courts. They are a clear right, an injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy.25
Clear right
[132] He argued that the Property is zoned undetermined and according to Scheme, property zoned “undetermined” may be used in accordance with the conditions, boundaries and stipulations of a “consented use” granted by the applicant.
[133] The Consent Use granted by the Applicant to the Respondent was only in respect of establishment of a guest house and conference facilities.
[133] The Applicant has a right to ensure and enforce compliance with the Scheme and all relevant instruments by the Respondent.
[134] The Respondent has failed to apply for and to obtain the requisite authorization for the other uses to which the subject property has been put and as such the Respondent has no right to host events and to entertain patrons on the Property in direct contravention of the Consent Use.
An injury actually committed or reasonably apprehended
[135] Mr Narib further argued that from as early as October 201926, the Respondent was informed by the Applicant that it was conducting unauthorized land use activities on the Property and was requested by the Applicant to cease with such unauthorized land use activities on the Property. Despite the numerous requests and cautions issued by the Applicant, the Respondent has continued to violate the conditions of the Consent Use.
[136] On 14 April 2023, the Applicant’s functionaries issued the Respondent with a “Notice to cease unauthorized land use activities on the Property27. In this notice, reference was made to the court in the review proceeding’s refusal of the declaratory orders sought by the Respondent and the Respondent was informed to cease all unauthorized land uses on the Property within 28 days from the date of receipt of the notice.
[137] In its response to the notice28, the Respondent asserted that the court’s refusal to exercise its discretion and/or to grant the declarators sought does not mean that the Respondent’s rights in respect of the Property were altered and that the Respondent has less rights in respect of the Property that it had before it sought clarity from the court and it further asserted that the Consent Use authorises the Respondent to conduct the activities of a guesthouse and conference facility on the Property and denied that it is conducting unauthorised land uses on the Property.
[138] Respondent’s denial that it is conducting unauthorised land uses on the Property, rings hollow considering that the Respondent continues to host events contrary to and outside the scope of the Consent Use.
[139] Between the periods of 11 May 2023 to 27 May 2023, the Respondent advertised various events and functions, to be hosted at the Property, which events and functions are contrary to the Consent Use. It is apparent that these events and functions were accompanied by noise pollution, use of alcohol, and entertainment. These advertisements are attached to the founding affidavit.29
Absence of similar protection by any other ordinary remedy
[140] Mr Narib submitted that The Respondent perpetually does not comply with the terms of the Consent Use and is likely to persist in its unlawful conduct. The respondent does not have the consent use to host events and functions, to operate a town hall or a place of amusement or even a restaurant.
[141] He contended that The Respondent has, through its conduct indicated that it has no intentions of complying with the conditions of the Consent Use and has further indicated that it intends to persist with its interpretation of the Consent Use.
Accordingly, the Applicant has no other recourse or form of protection, other than the interdict sought in these proceedings, to enforce the conditions of the Consent Use issued to the Respondent in respect of the Property.
Delay in seeking interdictory relief?
[142] Mr Narib argued that The Respondent contends that the Applicant unreasonably delayed in bringing these proceedings and enforcement of the right sought would be an act of bad faith and cause great inequality.
[143] He submitted that Unreasonable delay is not a basis on which to refuse interdictory relief, particularly where a continuing wrong is established.
[144] He referred to Imalwa and Others v Gaweseb and Others30 the Supreme Court held that unreasonable delay is not a basis on which to decline a claim for interdictory relief, and that one does not forfeit a right only because he or she delayed in enforcing it. The circumstances must be such that the enforcement of the right would be an act of bad faith.
The court at paragraph 58 stated:
“[58] As a general rule, one does not forfeit a right only because he or she delayed in enforcing it. The obvious exception is a debt which may prescribe. Zuurbekom Ltd v Union Corporation Ltd11 is authority for the proposition that mere delay does not deprive an aggrieved party the right to an injunction. The circumstances must be such that the enforcement of the right would be an act of bad faith.”
[145] He submitted that The Respondent has been engaged in acts of bad faith be lending an interpretation to the Consent Use that circumvents the actual terms, meaning and intent of the Consent Use, and further by acting in terms of that flawed and opportunistic interpretation.
[146] He argued that There is no bad faith on the part of the Applicant, as the Applicant merely seeks to enforce the terms and conditions of the Consent Use, which conditions the Respondent accepted and agreed to, but now seeks to run away from, under the guise of ‘purposive interpretation of the Consent Use’.
[147] He submitted that The Respondent stands to be interdicted and restrained from its unlawful conduct of failing to adhere to the Consent Use and the conditions applicable to the Consent Use.
Condonation
[148] It is instructive that we point out that the condonation application is not opposed. We submit further that in view of the issues raised herein, the applicant has a strong case and that condonation should be granted, simply in consideration of the merits of the case set out above31.
[149] The Respondent filed its answering affidavit on 10 July 2023 and the Applicant was required to file its replying affidavit within 14 days from 10 July 2023, which date would be on or before 28 July 2023.
[150] However, the Applicant only filed its replying affidavit on 22 August 2023, 16 days after the affidavit was due.
[151] The Applicant’s legal advisor deposed to the affidavit in support of the condonation application, setting out the circumstances that led to the non-compliance and cause of the non-compliance with the rules of the court was not due to the wilful disregard of this Honourable Court’s rules.
[152] The Applicant, in the affidavit filed in support of the condonation application has demonstrated that the Applicant enjoys excellent prospects of success and as the Applicant has demonstrated that whichever way the Consent Use is interpreted, the Consent Use has only authorised a guest house establishment in terms of the Resident Occupation Policy, subject to the conditions that the standard conditions for an accommodation facility be adhered to and that a maximum of ten (10) rooms with twenty (20) beds be used for the accommodation establishment and no other land uses.
[153] The Supreme Court in Standard Bank Namibia Ltd v Nekwaya32 held that good prospects of success on appeal may lead to a condonation and reinstatement application being granted in spite of the fact that the explanation for the noncompliance is weak or not entirely satisfactory. At para 58 of the judgment, the court stated that:
“[58] In my view, the appellant has shown very good prospects of success on appeal. This in turn should compensate for a weak explanation by the instructing legal practitioner, but as I found earlier, the appellant itself is not to be blamed for the ineptitude of its legal practitioner. In the circumstances there is sufficient cause to warrant the granting of condonation and to order the reinstatement of the appeal. The appeal should be upheld.”
Submissions on behalf of the respondent
Res judicata / issue estoppel
[154] Mr Jones submitted that the requirements for a defence of res judicata are well established, the requisites of which are that the two actions must have been between the same parties or their successors in title, concerning the same subject-matter and founded upon the same cause of complaint. 33
.Mr Jones referred this court Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another: 34 where the concepts are explained as follows:
“[10] The expression ‘res iudicata’ literally means that the matter has already been decided. The gist of the plea is that the matter or question raised by the other side had been finally adjudicated upon in proceedings between the parties and that it therefore cannot be raised again. According to Voet 42.1.1, the exceptio was available at common law if it were shown that the judgment in the earlier case was given in a dispute between the same parties, for the same relief on the same ground or on the same cause (idem actor, idem res et eadem causa petendi (see eg National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd 2001 (2) SA 232 (SCA) at 239F-H and the cases there cited). In time, the requirements were, however, relaxed in situations which give rise to what became known as issue estoppel. This is explained as follows by Scott JA in Smith v Porritt 2008 (6) SA 303 (SCA) para 10:
‘Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit of the exceptio res iudicata has over the years been extended by the relaxation in appropriate cases of the common law requirements that the relief claimed and the cause of action be the same (eadem res and eadem petendi causa) in both the case in question and the earlier judgment. Where the circumstances justify the relaxation of these requirements those that remain are that the parties must be the same (idem actor) and that the same issue (eadem quaestio) must arise. Broadly stated, the latter involves an inquiry whether an issue of fact or law was an essential element of the judgment on which reliance is placed.” (Emphasis added)
[154] He submitted that in considering whether to uphold the defence, relevant considerations will include questions of equity and fairness not only to the parties themselves but also to others. 35
[155] Mr Jones argued that the defence of res judicata cannot be determined in vacuo. That is because, in essence, the true basis for the doctrine is to prevent an abuse of process by raising, in subsequent litigation, issues that previously featured. This has been described as the true basis of the defence, with the clear warning that it ought only to be applied when the facts are such as to amount to an abuse, otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation. 36 (Emphasis added)
[156]. Mr Jones submitted that The Review Court also found that it was common cause that the consent allowed the applicant to use the property as a “guesthouse, and a conference facilities establishment, 37 and that it appears common cause that neither the word “guesthouse” nor “conference facilities” are defined in the Scheme”.
[157] Because the concept of “guesthouse” and “conference facilities establishment” is not defined in the Scheme it was argued in the Review that regard must be had to other pieces of legislation to interpret what these concepts mean. It is noteworthy that COW (who was the respondent in the review) disagreed with this contention 38 and argued that:
“If the court were to exceed to the entreaties of the applicant in this particular regard, it would result in the court assuming or usurping the powers of the respondent regarding the use to which the property in question can be put.”
[158] Mr Jones submitted that The Review Court also held that in determining the extent of the respondent’s (in the present matter) land use rights, in the review, the court would be legislating and felt that this would fall beyond the remit of the court’s powers. 39 This is a very important finding as will become apparent later on in the heads of argument.
The Review Court noted that the applicant (in the present matter) had failed to file a counter-application. This is an important consideration which I develop a little later on.
[159] Mr Jones submitted that In turning to the founding affidavit, it is quite clear that all of the issues and evidence that were before the Review Court are all issues before this Honourable Court
[160] Mr Jones submitted that the central issue in the Review was the Consent Use and the rights and obligations pursuant thereto and its conditionality. There are many more, but those two issues are central to this application. 40
[161] Mr Jones argues that In order to grant COW the interdictory relief that it seeks in this application, this Court will ultimately need to make a final determination as to what exactly the extent and content of the various rights are.
[162] He submitted that this was an issue that was before the Review Court which found that:
“It is not correct that the applicant’s rights to use and enjoy the property should be at the whim of the respondent, after considering what it subjectively considers a “valid” complaint, with no objective standards applicable.” 41
[163] Mr Jones further argues that The Review Court also found that it was common cause that the consent allowed the applicant (in the review) to use the property as a “guesthouse, and a conference facilities establishment 42 and that neither “guesthouse” nor “conference facilities” are defined in the Scheme”.
COW objected in the Review to using other pieces of legislation to interpret these two central concepts, but seemingly asks this Honourable Court to do so in this application.
[164] Mr Jones contends that The Review Court also held that in determining the extent of Droombos’ land use rights, in the Review, the court would be legislating and felt that this would fall beyond the remit of the court’s powers. 43 This is however what COW is asking this Honourable Court to do. (Emphasis added
[165] He further submitted that what was also at play in the Review was the declaratory relief that Droombos sought; that the nature of its business operations, in the absence of conference facilities and guesthouse being defined in the Scheme (or Consent use), was akin to the actions that take place in a “social hall” as defined in the Scheme.
[166] Mr Jones further submitted that what the applicant now does is it approaches this Court and asks it, on the same facts and the same issues that were before the Review Court, to ultimately make a finding in respect to what a ‘guesthouse’ and ‘conference facility’ is, in the face of the Review Court previously declining to do so. (
[167] Mr Jones submitted that as said before, the defence of res judicata cannot determined in vacuo. That is because, in essence, the true basis for the doctrine is to prevent an abuse of process by raising, in subsequent litigation, issues that previously featured.
[168] Mr Jones submitted that COW did not bring a counter application during the Review and waited until the judgment of the Review before it could launched this application, he submitted that this is an abuse, especially because the factual matrix relied upon in this current application is no different, and importantly no newer than the factual matrix relied upon in the review application
[169] Mr Jones contends that if regard is had to the context and specifically the findings that need to be made in order for the applicant’s relief to follow it is clear that the issues are res judicata and/or that COW is estopped from raising these issues in this application.
Lis pendens
[170] Mr Jones submitted that the defence of lis alibi pendens is designed to prevent the institution of a second action between the same parties in respect of the same subject-matter and based on the same cause of action while another such action is already pending. 44
[171] He submitted that it is clear from the applicant’s own papers 45 that the relief sought in this application is the very same relief sought in the action proceedings instituted by the Henles against Droombos (which is currently pending).
[172] He argued that it is clear that both the respondent and the applicant are parties to the Henle action as well. Further to this, any order in the action will be binding on both the applicant as well as the respondent, so too an order in this application.
[173] Mr Jones further submitted that although the Henles go further in their action (in respect to the relief sought), the point is that there is no relief sought in this application that is not sought in the Henle action. Clearly, the relief in the Henle action as set out in paragraph 60.4 of the founding affidavit, is the same as the relief sought in prayer 1.1 of the amended notice of motion. Similarly, the orders sought by the Henles as detailed in paragraphs 60.5 and 60.6, are materially the same orders that are sought in prayer 1.2 and alternatively prayer 1.3 of the amended notice of motion.
[174] He submitted that it is quite clear that the relief that the applicant currently seeks in this application is lis pendens in the action proceedings, and this amounts to a proliferation of actions.
[175] Mr Jones referred this court to Socratous v Grindstone Investments, 46 the South African Supreme Court in dealing with proliferation of actions held that:
“Courts are public institutions under severe pressure. The last thing that already congested court rolls require is further congestion by an unwarranted proliferation of litigation. The court below erred in not holding that against Grindstone when it dismissed the defence of lis pendens without due regard to the facts and on wrong principle. The court below ought not to have proceeded to consider the merits.”
[176] He argued that Not only will this court need to deal with the same issues in this application and in the Henle matter, which is an unnecessary proliferation of litigation, there is also a real risk of conflicting judgments.
Delay
[177] Mr Jones submitted that COW delayed in launching this application, and once this delay is contextualised , the grant of the interdict will cause great inequity amounting to unenforceable conduct on the part of COW.
He referred to In Imwala the Honourable Court remarked that:
“[58] As a general rule, one does not forfeit a right only because he or she delayed in enforcing it. The obvious exception is a debt which may prescribe. Zuurebekom Ltd v Union Corporation Ltd is authority for the proposition that mere delay does not deprive an aggrieved party the right to an injunction. The circumstances must be such that the enforcement of the right would be an act of bad faith.
[59] In Director General of Namibia in Central Intelligence Services and Another v Haufiku and Others this court said:
‘(T)he court retains a discretion to refuse a final interdict if its grant would cause some inequity or would amount to unconscionable conduct on the part of the applicant.’
[178] He argued that as early as 18 November 2009, the Henles objected in writing to the use of the remainder of Portion 41 of the Farm Klein Windhoek. 47 The objections were set out and premised inter alia on the following: dust pollution (gravel road); Noise pollution; Sewer disposals; Waste disposal, maintenance of the road
[179] He further submitted that despite the aforesaid objection the Consent Use was granted by COW on 30 August 2012. 48 The same objections were raised again in 2019 by the Henles
[180] Mr Jones contended that despite the complaint the Council nevertheless issued Droombos with a Certificate of Business Registration on 9 April 2019. 49 Importantly in terms of this registration, the respondent - based on its application for a certificate of fitness to host events and functions - was granted such authority. He further argued that reinforced the respondent’s right - in terms of an existing authority as per the Council’s consent granted on 30 August 2012 - to engage in such activities. At the very least it reinforced or established the clear basis for a legitimate expectation that it was entitled to engage in and conduct such activities on its business premises.
[181] Mr Jones submitted that In the meantime, Droombos has: Continued to build its business and continued to operate in terms of the Consent Use, as it is entitled to, did Invested over N$50 million; Employed many staff;
[182] He further argued that COW has on the other hand done nothing in that they:
Failed to take any action in 2019 or 2020 and in actual fact conceded that Droombos was in compliance with its Consent Use; participated in the review but failed to launch any counter application; only launched the present application in 2023, some 11 years after the first of the Henle complaints in 2012.
[183] Mr Jones further argued that the delay in the circumstances (of the continuing investment and development in and of Droombos) is unreasonable/unconscionable, and the enforcement of the right sought by the applicant would really be an act of bad faith.
[184] He submitted that in the circumstances that the grant of the interdict would cause great inequity and would amount to unconscionable conduct on the part of the applicant.
The merits
[185] Mr Jones submitted that on the facts COW fails to prove that it has a clear right to any of the interdictory relief that it seeks, fails to demonstrate an injury actually committed or reasonably apprehended and the absence of similar protection by any other ordinary remedy.
[186] He submitted that In regard to the first portion of the interdictory relief that is sought by COW it will need to demonstrate that, firstly, Droombos is operating an events and entertainment venue and/or a social or town hall and that the purported related activities are in contravention of the conditions applicable to the Consent Use.
(He referred to Nelson Mandela Bay Metro v Georgiou t/a Georgiou Guesthouse & Spa and Others 50 where the court explained that:
“[25] A zoning scheme regulates the use of property within a municipal area by establishing defined usages of property in geographic areas. The geographic zones form a spatial framework within which land development occurs. A zoning scheme is therefore a planning instrument and a legislative framework by which the rights and interests of owners of land are regulated.
[26] In Walele v City of Cape Town and Others O'Regan J said the following:
'The result of a zoning scheme is thus to restrict the rights of all owners in an area. Yet zoning schemes also confer rights on owners, because owners are entitled to require that neighbouring owners comply with the applicable zoning scheme. Where an owner seeks to depart from the scheme, the rights of neighbouring owners are affected and they are entitled to be heard on the departure. Owners in the area are also entitled to be heard when land is rezoned. A zoning scheme is therefore a regulated system of give and take: it both limits the rights of ownership but also confers rights on owners to expect compliance by neighbours with the terms of the mutually applicable scheme. The result is that where an owner seeks to use his property within the terms of the zoning scheme, it cannot be said that the rights of surrounding owners are affected materially or adversely.' ”) (emphasis added)
[187] Mr Jones contended that having regard to Table B of the Scheme 51 it is clear that unlike any other of the land usages in Table B, the undetermined zoning of the land upon which Droombos operates allows all Consent Uses and there are no prohibited uses.
[188] He further submitted that The Consent Use in turn allows Droombos to operate a guesthouse and conference facility establishment. 52
Neither the words “guesthouse” nor “conference facilities” are defined in the Scheme nor the Consent.
[189] He argued that The question then begs at this juncture: if it is unclear (as the Review Court indeed found) what a ‘guesthouse’ and/or ‘conference facility establishment’ is and what operations are conducted in terms of these two ‘concepts’, how can it be clear, as the applicant contends, that these concepts out rightly exclude Droombos’ current usage in the absence of there being any certainty as to what a ‘guesthouse’ and ‘conference facilities establishment’ is.
[190] Mr Jones submitted that for this reason alone the applicant is incapable of demonstrating that it has a clear right to the relief sought in prayer 1.1 of the amended notice of motion. 53
[191] The Review Court has already declined to make a finding on what the parties rights are in respect to the land. 54
[192] Mr Jones submitted that It seems that central to COW’s interpretation is the reliance on the Residential Occupational Policy. He submitted that the ‘source’ of the right – is the Scheme and the Consent Use, not the policy. 55
[193] He argued that notwithstanding the fact that the Land is not zoned residential and as such the Residential Occupational Policy 56 has no application, it is in any event not actually capable of co-existing together with the Zoning and Consent.
[194] Mr Jones further argued that in any event, upon a proper and purposive interpretation of the Consent Use it is clear that when granting the consent, COW envisioned the operation of a conference facility, understood what a conference facility offering included and expressly provided for this in the conditions attached to the Consent Use. Paragraphs 6 to 11 would not have been imposed if Droombos was going to be operated solely as an accommodation establishment, to the exclusion of a conferencing and events facility. 57
[195] He submitted that this contention is further borne out by the fact that the certificate of fitness issued by the applicant contemplated Droombos hosting events and functions. 58 This was issued pursuant to a specific application for business registration / certificate of fitness / registration which contemplated Droombos hosting events and functions. 59
[196] He further submitted that the statement is made in the answering papers that Droombos hosts events in accordance with its Consent Use. 60 In the absence of a definition of conferencing and what it entails, the respondent’s version must be accepted.
[197] He further argued that ultimately, before prayer 1.1 can be granted this Court will firstly need to define:
What a ‘conference facility’ is;
Secondly it will need to find that a conference - on all interpretations - could never ever be an “event” and/or “function”;
It will then need to find that there could never be any entertainment at a conference or that a conference was never allowed to have events and could not be entertaining;
Lastly this Honourable Court is asked to make a finding on what could conceivably constitute “related activities” in the context of the relief sought and then ultimately find that those “related activities” could never fall in to the - yet to be defined – activity of ‘conferencing’.
[198] He submitted that COW has simply not passed muster in respect to this and as such prayer 1.1 stands to be dismissed.
[199] In respect of prayers 1.2 and 1.3, Mr Jones argued that COW’s clear right in regard to prayers 1.2 and 1.3 purportedly stem from the Noise Control Regulations. 61
[200] Mr Jones argued that upon a consideration of the Regulations (the only place from which COW’s rights can be ascertained) there is absolutely no provision that entitles COW to the elements of the interdictory relief that is sought in prayer 1.2.
[201] He argued that in the absence of any legislative provision providing for a specific sound level, at a specific time, at a specific place within a specific zoning, the reference to 55dB(A) during the day and 45dB(A) at night is arbitrary and has absolutely no legislative or, for that matter, factual foundation.
[202] He submitted that nowhere in the legislative scheme, nor in the applicant’s papers, is the concept of the “ambient sound level” dealt with. Similarly, it is absolutely unclear from the Regulations as well as COW’s papers as to the relevance of 7dB (A) and more importantly COW’s entitlement to interdictory relief which prohibits Droombos from creating a noise which exceeds the ambient sound level by 7dB (A). What is the ‘ambient sound level’? How must it be measured? Where must it be measured? When is it measured? Does it fluctuate? These are just some of the uncertainties that arise, and again demonstrate the arbitrary nature within which COW approaches this application and the relief sought.
He submitted that Further to this, all of these measurements - despite being completely arbitrary - rely on an opaque “measuring point”. This is also an arbitrary concept and has absolutely no existence in any legislative framework, or even a factual foundation in the applicant’s papers. This concept has not been dealt with or explained in any way, shape, or form in the founding papers.
He argued that Moreover, the respondent demonstrates that Droombos previously applied for and was granted sound permits by the applicant. 62
[203] Consequently, COW does not have a clear right in circumstances where all the ‘concepts’ relied upon are arbitrary and most certainly vague.
[204] Mr Jones contended that In turning to deal with the alleged injury actually committed or reasonably apprehended, that can only be caused by “noise nuisance” as defined in the Regulations.
[205] He argued that not all noise constitutes a nuisance. On the one hand, it is expected of a neighbour to ‘live and let live’ when there is noise emanating from an adjoining property, but not excessively so. 63 On the other hand, a landowner or occupier is entitled to the reasonable enjoyment of the land. In each case a balance must be found.
[206] He referred to In Gien v Gien 64 where the court pointed out that neighbours may have competing rights. The owner or occupier of property is entitled to use his land as he pleases, and the neighbour is obliged to endure such use. However, whilst an owner or occupier may enjoy free use of his land, he may not do so in a manner which unreasonably interferes with the neighbour’s enjoyment of his land. The owner or occupier’s right to use the land as he pleases is thus limited, and if he exceeds this limit, his actions are unlawful and may form the basis for an interdict. (Emphasis added)
[207] He submitted that The factors to be considered in determining whether the disturbance is of such a degree that it is actionable were set out in De Charmoy v Day Star Hatchery: 65
“The factors which have been regarded as material in determining whether the disturbance is of a degree which renders it actionable, include (where the disturbance consists of noise) the type of noise, the degree of its persistence, the locality involved and the times when the noise is heard. The test, moreover, is an objective one in the sense that not the individual reaction of a delicate or highly sensitive person who truthfully complains that he finds the noise to be intolerable is to be decisive, but the reaction of the ‘reasonable man’ – one who, according to the ordinary standards of comfort and convenience, and without any particular sensitivity to the particular noise, would find it, if not quite intolerable, a serious impediment to the ordinary and reasonable use of his property.” (Emphasis added)
[208] He further contended that In PGB Boerdery Beleggings (Edms) Bpk and Another v Somerville 62 (Edms) Bpk the Court adopted the test as expressed by JRL Milton, 66 that in considering whether conduct should be interdicted, one should “[compare] the gravity of the harm caused with the utility of the conduct which has caused the harm.”
[209] He submitted that when it comes to the actual historical broadcasting of sound by Droombos the deponent to COW’s affidavit has no personal knowledge of this, and COW has not obtained any confirmatory affidavits from any of the neighbours, specifically the Henles.
[210] He argued that the allegations in as far as they attempt to allege a “noise nuisance” as defined in the specific regulation, are all hearsay. There is absolutely no proof of any noise let alone the type of noise, the degree of its persistence, the locality involved and the times when the noise is heard, the extent, duration and/or “loudness” of the alleged noise.
In support of its argument of “noise nuisance” COW in its founding papers 67 relies on a period of 7 May 2023 to 27 May 2023, a period of 16 days. It refers to several events that took place and then concludes absent any supporting factual matrix at all that:
“Invariably, these events are accompanied by gathering of large crowd of people, use of sound amplifying equipment for sound purposes, loud music, use of alcohol and accompanying noise pollution. It also leads to traffic congestion. Droombos is determined to continue to host these events, if regard is had to their letter of 9 May 2023.”
[211] Mr Jones submitted that this is as far as COW is able to take the question of “an injury actually committed or reasonably apprehended”. Importantly, however, it is the respondent’s facts in terms of the Stellenvale rule which the Honourable Court will need to take cognisance of.
[212]In this regard the respondent stated that the events did take place and they were lawfully hosted. 68 The respondent addresses each of the events and demonstrates on those facts that there was no “noise nuisance”.
Determination
Res judica
[213]In Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 69 the court explained the concept of res judicata as follows:
“[10] The expression ‘res iudicata’ literally means that the matter has already been decided. The gist of the plea is that the matter or question raised by the other side had been finally adjudicated upon in proceedings between the parties and that it therefore cannot be raised again. According to Voet 42.1.1, the exceptio was available at common law if it were shown that the judgment in the earlier case was given in a dispute between the same parties, for the same relief on the same ground or on the same cause (idem actor, idem res et eadem causa petendi (see eg National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd 2001 (2) SA 232 (SCA) at 239F-H and the cases there cited). In time, the requirements were, however, relaxed in situations which give rise to what became known as issue estoppel. This is explained as follows by Scott JA in Smith v Porritt 2008 (6) SA 303 (SCA) para 10:
‘Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit of the exceptio res iudicata has over the years been extended by the relaxation in appropriate cases of the common law requirements that the relief claimed and the cause of action be the same (eadem res and eadem petendi causa) in both the case in question and the earlier judgment. Where the circumstances justify the relaxation of these requirements those that remain are that the parties must be the same (idem actor) and that the same issue (eadem quaestio) must arise. Broadly stated, the latter involves an inquiry whether an issue of fact or law was an essential element of the judgment on which reliance is placed.” (Emphasis added)
[214] From the above authority, it is abundantly clear that in order to succeed with a plea of res judicata, the matters/ issues or questions raised in the Review proceedings must have been decided or finally adjudicated upon. The fact that the same matters, issues raised in the Review proceedings overlap, or were alive or ‘noted’ (as Mr Jones submitted)with the issues in this application, does not make them res judicata. The same issues must have been decided.
[215] The declarator sought in the Review proceedings- that consent be granted to Droombos to operate a facility on the land to hosts events and functions- was refused on the basis that, the court would in effect be legislating and determining what land rights may be allowed on the property in question and that falls beyond the remit of the court’s powers.
[216] What the applicant in this application seeks (inter alia) is to interdict the respondent from hosting functions and events because it contends that Droombos does not have the land use right to host functions and events in terms of the consent use. That issue was not decided in the Review proceedings. Similarly, the interdict sought in relation to the noise emanating from the hosting of functions and events at Droombos in this application, was not prayed for in the Review proceedings.
[217] The fact that the issues in the Review proceedings are the same or overlap as in this application, is no bar for the applicant to approach the court and seeks the relief it seeks, unless the same issues have been decided in the Review proceedings, that is what the Supreme Court said in Fish Orange Mining Consortium (Pty) Ltd v Goaseb and Others70 at para 44 where Mainga JA said:
“The parties to the two suits were the same and the factual background to sustain the relief sought in the respective suits were the same but it cannot be said that the same thing was claimed in the respective suits, nor was reliance placed on the same cause of action. As was correctly stated in the National Sorghum Breweries case above, the mere fact that there are common elements in the allegations made in the two suits does not justify the exception – one must look at the claim in its entirety and compare it with the first claim in its entirety. If this is done in the present case, the differences are so wide and obvious that one simply cannot say that the same thing was claimed in both suits and that the claims were brought on the same cause of action.”
[218] The special plea of res judicata, is accordingly meritless and stands to be rejected.
Lis pendens
[219] In Schuette v Schuette,71 Angula DJP said the following regarding the concept of lis pendens and the court’s approach thereto:
‘[14]The requirements for the plea of lis pendens in terms of the law are these: there must be pending litigations; between the same parties or their privies; based on the same cause of action; and in respect of the same subject-matter, but this does not mean the form of relief claimed in both proceedings must be identical.72 The plea of lis pendens is not absolute. This means that even if it is found that the requirements have been met, the court has a discretion to allow an action to continue should that be considered just and equitable in the circumstances, despite the earlier institution of the same action.’
[220] In the Henles action, the pending litigation is between the Henles and Droombos.The Henles are also not party to these proceedings.
Mr Narib correctly submitted that Plaintiff’s cause of action in the Henles is founded on neighbour laws and nuisance laws73, whereas the applicant in the present proceedings seeks to enforce public law duties of the respondent.Accordingly,the special plea of lis pendens is meritless and stands to be dismissed.
Delay
[221]In Imalwa and Others v Gaweseb and Others74 the Supreme Court held that:
“[58] As a general rule, one does not forfeit a right only because he or she delayed in enforcing it. The obvious exception is a debt which may prescribe. Zuurbekom Ltd v Union Corporation Ltd75 is authority for the proposition that mere delay does not deprive an aggrieved party the right to an injunction. The circumstances must be such that the enforcement of the right would be an act of bad faith.
[59]In Director-General of the Namibian Central Intelligence Services v Haufiku 76 this court said:
‘The court retains a discretion to refuse a final interdict if its grant would cause some inequity and would amount to unconscionable conduct on the part of the applicant.’
[222] What the applicant seeks to do is to enforce compliance with the terms of the consent use granted to the respondent. The non-compliance is continuous and there is no bad faith in seeking the relief sought at this juncture. It is the respondent who has been acting in bad faith by hosting events and functions contrary to the land use granted to the respondent by adopting ‘opportunistic interpretation to the consent use granted.’ And as the SC said: “mere delay does not deprive an aggrieved party the right to an injunction”.
It must also be noted that the functionaries of the applicant had in the past, before the application was launched, engaged extensively with the Respondent regarding the non-compliance with the conditions of the consent use granted to the respondent, but the Respondent persisted with the non-compliance.
Condonation
[223] The applicant sought condonation for the late filing of its replying affidavit. The replying affidavit was filed 16 days late. The condonation is not opposed.
[224] The Applicant’s legal advisor deposed to the affidavit in support of the condonation application, setting out the circumstances that led to the non-compliance. The cause of the non-compliance with the rules of the court was not due to the wilful disregard of this Court’s rules. The explanation ??? given is reasonable and acceptable. The applicant also has good prospects of success on the merits. As a result, condonation was granted.
Merits
[225] In considering the merits of the dispute, the court has to consider the original application submitted by the previous owner of the property when it applied for consent use to operate a guesthouse on the property. The background and the context are crucial in determining the dispute between the parties. As Lord Steyn put it: ‘context is everything in law’.
The material terms of that application were the following:
(a)’the residential use will remain the dominant use, while the Guesthouse and conference facility will be a subordinate function.”
(b) the planned development is not a hotel, where activities such as a disco or other entertainment could pose a disturbance or undue noise”.
©the proposed operations “will not have negative effect on the surrounding area”;
(d) only a small scale accommodation facility is planned, consisting of only 10 rooms… will ensure the noise is kept to a minimum”;(The application is attached hereto as annexure “A”)
[226] Based on that application, the applicant granted the consent use as contained in Council Resolution 275/08/2012 of 30 August 2012.The material terms (for the purpose of this application) of the resolution were as follows:
‘1 that consent to operate guest house establishment with ten (10) leasable rooms on Portion R/41, Klein Windhoek Town and Townlands No 70, off the Gobabis Trunk Road, be granted in terms of the Resident Occupation Policy, subject to the following conditions;
1.1 that the standard conditions for an accommodation facility be adhered to.
1.2 That a maximum of ten (10) rooms with twenty (20) beds be used for the accommodation establishment.
1.3 That the city reserve the right to revoke the consent, should there be a valid complaint as a result of the guest house and conference facility establishment.”
It is common cause that the respondent accepted the consent use in writing, subject to those conditions.
[227] In terms of the Town Planning Scheme, “accommodation establishment” is defined as:
“… means a building which is not a hotel or motel and includes a pension, a caravan park, a guest house, a lodge, a backpackers-lodge and all other establishments referred to in the definitions of 'accommodation establishment' in the Accommodation Establishments and Tourism Ordinance, 20 of 1973, as well as the regulations made thereunder, the Liquor Act 6 of 1998 and the Namibian Tourism Act 21 of 2000.”
[228] A Town Planning Scheme regulates the use of property within a municipal area by establishing defined usages of property in geographic areas. And the Council Resolution (consent use) defined the usages for which the respondent’s property could be used for. Although the property is zoned undetermined, its usage is subject to the consent use granted.
[229] The defined usages are clear as per the consent use if one employs the technique of interpretation of documents as ably spelt out by O’ Regan in Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC77 where she said:
[18] 'Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed; and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighted in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.’
And further at:
[23] ... context is an important determinant of meaning. It also makes plain that interpretation is 'essentially one unitary exercise' in which both text and context, and in the case of the construction of contracts, at least, the knowledge that the contracting parties had at the time the contract was concluded, are relevant to construing the contract. This unitary approach to interpretation should be followed in Namibia.
[24] The approach adopted here requires a court engaged upon the construction of a contract to assess the meaning, grammar and syntax of the words used, as well as to construe those words within their immediate textual context, as well as against the broader purpose and character of the document itself. Reliance on the broader context will thus not only be resorted to when the meaning of the words viewed in a narrow manner appears ambiguous. Consideration of the background and context will be an important part of all contractual interpretation.’
I fully agree with the above dictum as a correct exposition of the law and, needless to say, I am bound by it.
[230] Having regard to the material terms of the application for consent use and the approval granted in terms of Council Resolution275/08/2012 of 30 August 2012, the clear language in the consent use, the defined usages granted to the respondent was limited to the guesthouse and conference facility, excluding the hosting of functions and events. The interpretation of the consent use by the respondent to include functions and events, is wrong as it is not supported by the background, context and the language used in the consent use.
[231] The submission by Mr Jones that the undetermined zoning of the land upon which Droombos operates allows all Consent Uses and there are no prohibited uses, is simply not correct. The consent use was granted subject to defined usages and the respondent must abide by that.
[232]Mr Narib correctly submitted that the consent was granted subject to the “Resident Occupation Policy” and the conditions which the council imposed are intended to protect the immediate neighbours, the local community in a general sense, and only a small-scale activity such as a guest house establishment, which does not injuriously and adversely affect the neighbours, may be allowed.
[233]Nowhere in that initial application for consent use did the respondent apply for the hosting of events and functions, nor where such land right use granted.
In Walele v City of Cape Town and Others O'Regan J said the following:
'The result of a zoning scheme is thus to restrict the rights of all owners in an area. Yet zoning schemes also confer rights on owners, because owners are entitled to require that neighbouring owners comply with the applicable zoning scheme. Where an owner seeks to depart from the scheme, the rights of neighbouring owners are affected and they are entitled to be heard on the departure. Owners in the area are also entitled to be heard when land is rezoned. A zoning scheme is therefore a regulated system of give and take: it both limits the rights of ownership but also confers rights on owners to expect compliance by neighbours with the terms of the mutually applicable scheme. The result is that where an owner seeks to use his property within the terms of the zoning scheme, it cannot be said that the rights of surrounding owners are affected materially or adversely.' ”) (emphasis added)
[234]The above authority tells us that, it is only when the owner seeks to use his property within the terms of the zoning scheme, it cannot be said that the rights of surrounding owners are affected materially .And the terms of the consent use in this matter are as per council resolution.
Fitness certificate
[235]Mr Jones submitted that the respondent was granted a Fitness and Business registration certificates that authorised it to host functions and events 78 That was issued pursuant to a specific application for business registration / certificate of fitness / registration which contemplated Droombos hosting events and functions. 79
[236]The relevant Certificate of fitness/Registration that was issued to Droombos, contains the following relevant information:
“Issue date 09 April 2019;
Expiry date 09 April 2020;
“Nature” – “Administrative office”
“Restricted to” – “hosting events and function”
( Application for Business Registration/Certificate of fitness/ Registration, dated 22 March 2019 attached hereto as Annexure “J”.)
[237] A certificate of fitness is issued in terms of the General Health regulations (G.N 121 of 1969) and the Regulation relating to the Registration of Businesses GN 202 of 2006.
The General Health Regulations makes a certificate of fitness subject to compliance with other laws. Regulation 2 of the General Health Regulations states that:
‘2.These regulation lay down minimum requirements and standards and shall be deemed to be in addition to, but not in substitution for, any regulation in force within the district of the local authority, except where such regulation is in conflict or inconsistent with these regulations, or lay down requirements and standards which are lower than those required by these regulations, in which case the provisions of these regulations shall prevail.’
[238] The implication thereof is that the land use (consent use) as per the scheme granted to Droombos cannot be substituted or extended on the basis of what is contained in a certificate of fitness. In terms of Regulation 174 (1) of the General Health Regulations the land use rights is a pre-condition to the validity of a certificate of fitness. Regulation 174 (1) reads:
“174.(1) No person shall carry on the business of an hotel or boarding house or lodging house in or on any premises, unless he has had such premises registered in advance with the local authority for this purpose. The local authority issue to the applicant the certificate of registration applied for only if such application is accompanied by a certificate of fitness in accordance with regulations 175 and 176.”
[239] The nature in respect of which the fitness certificate was issued is “Administrative Office”, The land use in terms of the consent use is guesthouse and conference facility and therefore the reliance by Droombos on the registration in the certificate of fitness as conferring a land use right for “hosting events and function”, is wrong. The hosting of events and functions on the land is therefore contrary to the consent use and in contravention of the scheme.
[240] The Regulations relating to the Registration of Businesses states:
a “certificate of fitness” means a certificate of fitness issued in terms of regulation 5 by the Environmental Health Officer in respect of a business premises;
a “certificate of fitness” means a valid certificate of registration issued in terms of regulation 7 by the Registration Officer in respect of the conducting of business on a business premises.
[241]] Mr Narib correctly submitted that the reliance by Droombos on the Certificate to circumvent Consent Use is misplaced and due to no land use application having been made by Droombos to operate a “social hall”, special building, or place of amusement on the property, the use of the two large hall venues, and the subject property as an entertainment area or/and events venue or other used are in contravention of the Scheme.
Noise
[242]The applicant contends that that the functions and events hosted by the Respondent on the Property, in contravention of the Consent Use, produce noise as a result of loud music and/or public address systems. Traffic related noise and noisy guests also contribute to noise impacts.
[243]Noise in the municipal area is regulated by the Noise Control Regulation, General Notice no. 77 of March 2006.Regulation 2(d) provides that “A person may not, in the municipal area, on or from- any other erf, broadcast or cause to be broadcasted music, speech, messages or any other sound which causes or is likely to cause a noise nuisance, unless that person has obtained the Council’s written authorisation.
In support of the contention of the noise emanating from functions and events hosted by Droombos,applicant listed a number of events hosted by Droombos during 2023.Mr Jones correctly submitted that what the applicant averred as to the noise from those events is hearsay evidence as he has no personal knowledge and there were no confirmatory affidavits filed.
[244] Mr Jones correctly submitted that in the absence of any legislative provision providing for a specific sound level, at a specific time, at a specific place within a specific zoning, the reference to 55dB(A) during the day and 45dB(A) at night in prayer 1.2 is arbitrary and has absolutely no legislative or, for that matter, factual foundation. The applicant has not dealt with the concept of “ambient sound level”, and as Mr Jones correctly put it: What is the ‘ambient sound level’? How must it be measured? Where must it be measured? When is it measured?
[245] In the absence of any legislative framework dealing with ambient sound level, the reliance by the applicant on ambient sound level to seek the interdict in prayer 1.2 is arbitrary and contrary to the rule of law.
[246] It is not clear from the Noise control Regulations as well as applicant’s papers as to the relevance of 7dB(A) and why applicant is entitled to interdictory relief(prayers 1.2 and 1.3) which prohibits Droombos from creating a noise which exceeds the ambient sound level by 7dB(A).
Conclusion
The Consent Use granted by the Applicant to the Respondent was only in respect of establishment of a guest house and conference facilities. Contrary to the consent use, the respondent hosts events and functions. The applicant has a right to enforce compliance with the Town Planning Scheme. The applicant has met the requisites for a final interdict in respect of prayer 1.1
In respect of prayer 1.2 and the alternative, there is no legislative framework dealing with ambient sound level and the reliance by the applicant on ambient sound level to seek the interdict in prayer 1.2 is arbitrary and contrary to the rule of law.
In the result, I make the following order
Order
1. Prayer 1.1 of the notice of motion is granted.
2. Prayer 1.2 and 1.3(alternative prayer) are refused.
3. There is no order as to costs.
4. The matter is finalised and removed from the roll.
1 Record page 398 para 134 – 136.
2 Record page 402 – 406.
3 Record page 357
4 Fish Orange Mining Consortium (Pty) Ltd v Goaseb and Others 2014 (2) NR 385 (SC) at 397 G – I (Para 44).
5 Fish Orange Mining Consortium (Pty) Ltd v Goaseb and Others supra para 44
6 Herbstein and Van Winsen The Practice of the Supreme Court of South Africa 4ed (1997) at 249- 250; Mitford’s Executor v Ebderis Executors and Others 1917 AD 682 at 686.
7 African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 562 C-D
8 Fish Orange Mining Consortium (Pty) Ltd v Goaseb and Others 2014 (2) NR 385 (SC))
9 At page 391 E- F (Para [17]) of the judgment.
10 Record page 396 para 125 – 133.
11 Record page 306 para 6
12 Record page 37 para 60
13 Record page 131.
14 Record page 69 – 128.
15 Record page 48.
16 Record page 17.
17 Answering Affidavit page 310.
18 Record page 332.
19 Record page 143.
20 Record page 167.
21 Record page 159
22 Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC 2015 (3) NR 733 (SC).
23 Chairperson, Council of the Municipality of Windhoek v Roland 2014 (1) NR 247 at p 256 para 24 and p
261 para 40
24 Chairperson, Council of the Municipality of Windhoek v Roland supra at page 256 para 24
25 Setlogelo v Setlogelo 1914 AD 221 at 227; quoted with approval in Naango and others v Katekela and others 2017 (1) NR 66 (HC) at par [40]
26 Record page 23 para 20.26
27 Record page 146
28 Record page 149
29 Record page 153 – 158
30 Imalwa and Others v Gaweseb and Others (SA 61 of 2018) [2021] NASC 7 (1 March 2021)
31 Standard Bank Namibia Ltd v Nekwaya (SA 95 of 2020) [2022] NASC 43 (1 December 2022)
32 (SA 95 of 2020) [2022] NASC 43 (1 December 2022)
33 Ex parte Momentum Group Ltd and Another 2007 (2) NR 453 (HC) at 461E-F; Fish Orange Mining Consortium (Pty) Ltd v !Goaseb and Others 2014 (2) NR 385 (SC) par [19], [20], [21] and the authorities referred to therein
34 2014 (5) SA 297 (SCA)
35 Smith v Porritt and Others 2008 (6) SA 303 (SCA) at 307J-308E par [10]
36 Arnold v National Westminster Bank PLC [1991] 3 All ER 41 (HL); Brisbane City Council v Attorney-General for Queensland [1978] 3 All ER 30 (PC)
37 Par [125]
38 Par [126]-[127]
39 Par [132]
40 Founding affidavit par 20
41 Par [121]
42 Par [125]
43 Par [132]
44 Okorusu Fluorspar (Pty) Ltd v Tanaka Trading CC and Another 2016 (2) NR 486 (HC) at 497 par [39]
45 Founding affidavit par 59-60
46 2011 (6) SA 325 (SCA). See also Okorusu Fluorspar supra par [38]
47 Application 428-429
48 Application 453-455
49 Application 479
50 2016 (2) SA 394 (ECP) par [25]
51 Application 101
52 Application 410
53 Application 1
54 Hallie Investments supra par 128 and 129
55 Hayes and Another v Minister of Finance and Development Planning, Western Cape, and Others 2003 (4) SA 598 (C) at 611-612
56 Application 313-314
57 Application 332 par 101
58 Application 332 par 102
59 Application 332 par 103
60 Application 349 par 214, 216, 217 and 218
61 Application 143-150
62 Application 341 par 162; 653-654
63 Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club 2008 (3) SA 134 (SCA) par 21 and the authorities referred to
64 1979 (2) SA 1113 (T) at 1112
65 1967 (4) SA 188 (D) at 192
66 Milton, Concept of Nuisance in English Law, 329
67 Application 43-45 par 72-73
68 Application 349 par 216
69 2014 (5) SA 297 (SCA)
70 2014 (2) NR 385 (SC) at 397 G – I (Para 44)
71 Schuette v Schuette (HC-MD-CIV-MOT-GEN-2019/00376) [2020] NAHCMD 426 (18 September 2020).
72 LAWSA Vol 3 para 247; Baker v The Messenger of Court for the District of Walvis Bay (A 309/2015 [2015] NAHCMD 286 (23 November 2015) at para 6.
73 Record page 37 para 60
74 Imalwa and Others v Gaweseb and Others (SA 61 of 2018) [2021] NASC 7 (1 March 2021)
75 Zuurbekom Ltd v Union Corporation Ltd 1947 (1) SA 514 (A) at 536.
76 The Director-General of the Namibian Central Intelligence Services v Haufiku (SA 33-2018) [2019] NASC (12 April 2019).
77 Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC 2015 (3) NR 733 (SC).
78 Application 332 par 102
79 Application 332 par 103
Cited documents 7
Act 4
| 1. | Local Authorities Act, 1992 | 1335 citations |
| 2. | Liquor Act, 1998 | 105 citations |
| 3. | Namibia Tourism Board Act, 2000 | 28 citations |
| 4. | Nature Conservation Amendment Act, 1988 | 4 citations |