Rationality

Erongo Regional Council and Others v Wlotzkasbaken Home Owners Association and Another (SA 6/2008) [2009] NASC 2 (17 March 2009);

Headnote and Holding: 

This was an appeal against a judgment of the High Court which ordered the appellants to comply with the terms of a settlement agreement entered into by the parties on 10 November 2006 and later became an order of court. The first appellant was an elected body established in terms of the Regional Councils Act 22 of 1992. The first respondent was a voluntary association representing 104 members out of 110 persons who were lessees of sites in a holiday resort and fishing village of Wlotzkasbaken under the jurisdiction of the first appellant.

The first appellant advertised plots for lease without distinguishing between those already leased to the respondents and other vacant sites, which aggrieved the respondents and was interpreted as a breach of their right of pre-emption. The issues for determination were: the meaning of clause 2 of the 2006 agreement in the context of previous agreements and whether the advertisement was signaling an intention to no longer be bound by the 2006 agreement.

The court deduced that the agreements showed that in each instance the parties agreed to certain rights which would ensure that those existing leaseholders would be able, if so advised, to convert their lease holding into property rights. In their agreement with the appellants, the respondents acquired the right to have all the plots sold once the township was proclaimed. Therefore, the intention to lease those plots was a breach of the right of the respondents. Accordingly, the appellants’ appeal was dismissed with costs.