Court halts expropriation of four Namibian farms

GOVERNMENT’S attempt to expropriate four farms in Namibia belonging to German nationals has been stopped in its tracks following a court challenge.

The High Court in Windhoek yesterday ruled that the State had not complied with the Commercial Land Reform Act and provisions of the Constitution. The State would also have to pay for all the legal costs of the applicants, Justice Sylvester Mainga said.However, the ruling does not prevent the Ministry of Lands from restarting the expropriation process, provided the letter and spirit of the law are strictly complied with.The 82-page-long judgement was compiled by Judge Louis Muller and Acting Judge Annel Silungwe.The case was heard last July.”The cumulative effect of all the failures of the Minister to comply with the provisions of the Constitution and the Act clearly indicate that the fundamental rights of the three applicants were infringed by the action of the Minister and that the Court has no option but to declare such decisions by the Minister to expropriate the four farms of the three applicants invalid,” the two judges ruled.”We cannot come to any other conclusion than that the Minister failed to comply with the provisions of the Act when he decided to expropriate the applicants’ farms,” they said.According to the ruling, Lands Minister Jerry Ekandjo did not consult with the Land Reform Advisory Commission (LRFAC) before deciding whether to expropriate a farm or not, there was no farm inspection prior to the decision and no consultations were held to find a solution for the farmworkers, 56 at one of the farms, and their families, once the land came into Government possession.Cabinet decided on February 17 2004 to expropriate 26 farms, including the four, the judges concluded, and the chronology of procedures for expropriation was not followed.The LRFAC met in March and December 2004, but was only informed about the Government decision to expropriate several farms – no consultations took place.The three farm owners (one owns two farms) – Guenther Kessl, Martin Riedmaier and the trustees of the farm Heimaterde cc – also had no chance to state their case why they did not want to sell to Government after they received letters “to make an offer” how much they wanted for their land, since the Ministry had already decided to buy the four farms.Minister Ekandjo in 2005 further did not check whether the conclusions of his predecessor, Minister Hifikepunye Pohamba, were according to requirements, the two judges said.Further, “not only did both Ministers fail to deal with the requirements and duties they were empowered to perform at the time that they were authorised to do so, but there is no indication who did what and when”.”Both Ministers did not attest to what had occurred when the one took over office from the other in respect of these four farms, because the Act provides for an expropriation process following failure of the willing seller/willing buyer process.”To expropriate a farm, there must first have been an attempt to buy it on the basis of willing-seller, willing-buyer.A vacuum existed in this regard, because the new decision maker (Ekandjo) did not inform the Court that he accepted what his predecessor did, or what he accepted from him.”The following pertinent issues are left in the dark – was the new Minister satisfied that there was proper compliance, proper consultations before the decision to acquire the farms, if the farms were suitable for the purpose of resettlement and if the previous Minister’s response to the letters written on behalf of the three applicants by their legal representative was correct?” the 82-page judgment noted.Judges Muller and Silungwe also came to the conclusion that the Agricultural (Commercial) Land Reform Act did not include a provision to restrict the acquisition of land in Namibia by foreigners, except for land acquired by foreigners in contravention of the provisions of sections 58 and 59 – without permission of the Minister.In such a case the land can be expropriated by the State.The Act does not contain any definition of an absentee landlord, the Judges concluded.All three land owners bought their farms many years before Independence, they added.The criteria for the expropriation of the four farms were also not made clear, they found.Lawyer Ulrich Etzold, who represented the three farm owners, expressed his satisfaction with the ruling.”The judgement will hopefully let the Lands Ministry strictly comply with the Act and the Constitution regarding expropriation requirements,” Etzold told The Namibian.”The ruling also gives confidence that citizens are not totally at the mercy of authorities, but can successfully turn to the courts for relief.We expect that the expropriation process in the side of the Ministry will start afresh,” Etzold added.He pointed out that the three farm owners were not against land expropriation, but felt their rights infringed as procedures were not followed.The State would also have to pay for all the legal costs of the applicants, Justice Sylvester Mainga said.However, the ruling does not prevent the Ministry of Lands from restarting the expropriation process, provided the letter and spirit of the law are strictly complied with.The 82-page-long judgement was compiled by Judge Louis Muller and Acting Judge Annel Silungwe.The case was heard last July.”The cumulative effect of all the failures of the Minister to comply with the provisions of the Constitution and the Act clearly indicate that the fundamental rights of the three applicants were infringed by the action of the Minister and that the Court has no option but to declare such decisions by the Minister to expropriate the four farms of the three applicants invalid,” the two judges ruled. “We cannot come to any other conclusion than that the Minister failed to comply with the provisions of the Act when he decided to expropriate the applicants’ farms,” they said.According to the ruling, Lands Minister Jerry Ekandjo did not consult with the Land Reform Advisory Commission (LRFAC) before deciding whether to expropriate a farm or not, there was no farm inspection prior to the decision and no consultations were held to find a solution for the farmworkers, 56 at one of the farms, and their families, once the land came into Government possession.Cabinet decided on February 17 2004 to expropriate 26 farms, including the four, the judges concluded, and the chronology of procedures for expropriation was not followed.The LRFAC met in March and December 2004, but was only informed about the Government decision to expropriate several farms – no consultations took place.The three farm owners (one owns two farms) – Guenther Kessl, Martin Riedmaier and the trustees of the farm Heimaterde cc – also had no chance to state their case why they did not want to sell to Government after they received letters “to make an offer” how much they wanted for their land, since the Ministry had already decided to buy the four farms.Minister Ekandjo in 2005 further did not check whether the conclusions of his predecessor, Minister Hifikepunye Pohamba, were according to requirements, the two judges said.Further, “not only did both Ministers fail to deal with the requirements and duties they were empowered to perform at the time that they were authorised to do so, but there is no indication who did what and when”.”Both Ministers did not attest to what had occurred when the one took over office from the other in respect of these four farms, because the Act provides for an expropriation process following failure of the willing seller/willing buyer process.” To expropriate a farm, there must first have been an attempt to buy it on the basis of willing-seller, willing-buyer.A vacuum existed in this regard, because the new decision maker (Ekandjo) did not inform the Court that he accepted what his predecessor did, or what he accepted from him.”The following pertinent issues are left in the dark – was the new Minister satisfied that there was proper compliance, proper consultations before the decision to acquire the farms, if the farms were suitable for the purpos
e of resettlement and if the previous Minister’s response to the letters written on behalf of the three applicants by their legal representative was correct?” the 82-page judgment noted.Judges Muller and Silungwe also came to the conclusion that the Agricultural (Commercial) Land Reform Act did not include a provision to restrict the acquisition of land in Namibia by foreigners, except for land acquired by foreigners in contravention of the provisions of sections 58 and 59 – without permission of the Minister.In such a case the land can be expropriated by the State.The Act does not contain any definition of an absentee landlord, the Judges concluded.All three land owners bought their farms many years before Independence, they added.The criteria for the expropriation of the four farms were also not made clear, they found.Lawyer Ulrich Etzold, who represented the three farm owners, expressed his satisfaction with the ruling.”The judgement will hopefully let the Lands Ministry strictly comply with the Act and the Constitution regarding expropriation requirements,” Etzold told The Namibian.”The ruling also gives confidence that citizens are not totally at the mercy of authorities, but can successfully turn to the courts for relief.We expect that the expropriation process in the side of the Ministry will start afresh,” Etzold added.He pointed out that the three farm owners were not against land expropriation, but felt their rights infringed as procedures were not followed.