Court rules farm rental illegalBy: WERNER MENGES
A FARM rental agreement concluded between a German citizen and a Karibib district farm owner about ten years ago was illegal and void from the start, the Supreme Court has ruled.
The rental agreement between farm owner Heiner Schweiger and German citizen Erika Müller was against some of the provisions of the Agricultural (Commercial) Land Reform Act of 1995, and a finding to that effect by High Court Judge Kato van Niekerk was entirely justified, Chief Justice Peter Shivute said in the Supreme Court’s judgement on an appeal by Schweiger against Judge Van Niekerk’s decision.
Judge Van Niekerk had ordered Schweiger to repay the sum of 40 000 Deutschmark (about N$203 000 at the time) to Müller, plus 20% interest a year on that amount, calculated from July 9 2002, which was the date when the rental agreement was concluded in writing.
On appeal, Schweiger received substantial relief from that financial burden. In a judgement delivered on Friday last week, the Supreme Court still ordered him to repay the 40 000 Deutschmark to Müller, but changed the interest payment, to run only from the date of the Supreme Court’s judgement.
While Müller should be allowed to recover the money she had paid to Schweiger for the rental of his farm, Gamikaub, in the Karibib district, it would have the effect of enforcing an illegal agreement if Schweiger were to be ordered to also pay interest on that amount to Müller from the date of the agreement, the Chief Justice reasoned.
Schweiger and Müller initially agreed that she would lease part of his farm for a period of 20 years, at a total rent price of 80 000 Deutschmark.
When they later realised that this was against the law, they concluded a written agreement, in which Schweiger agreed to lease his farm to her for a period of nine years and eleven months, with a further undertaking that at the end of that lease period he could conclude a new lease agreement with Müller on the same terms.
The Agricultural (Commercial) Land Reform Act states that no foreign national may enter into an agreement in terms of which the person obtains the right to occupy or possess agricultural land for longer than ten years, or for a period less than ten years, but renewable to in effect more than 10 years, without the written permission of the Minister of Lands.
Schweiger and Müller did not get that written permission from the Lands Minister before they concluded their agreement, and as a result their agreement was illegal and void from the start, the Supreme Court found.
Acting Judge of Appeal Fred Chomba agreed with the Chief Justice’s judgement.
Senior counsel Theo Frank, instructed by Andreas Vaatz, represented Schweiger with the appeal. Andrew Corbett, instructed by Basil Bloch, represented Müller.