Court rules plot auction illegal, discriminatory

THE High Court has ruled that the Walvis Bay Municipality’s land policy and the way it was applied at an auction of plots two years ago was racially discriminatory and violated the Constitution.

In April last year, a full bench of the High Court nipped the transfer of certain plots sold at an auction at Walvis Bay two years previously in the bud by issuing an interim order that the erven could not be transferred into the names of the people who had bought them at the auction. Reasons for that order have only now been handed down by the court.At the auction that took place on December 19 2003, some 180 erven were offered exclusively to previously disadvantaged buyers.Transfer was supposed to take place in March this year.Walvis Bay businessman Willem Grobbelaar opposed the auction and, along with a developer from Windhoek, Herman Davin, applied to the High Court for an interim interdict to halt the transfer.Grobbelaar and Davin claimed in their application that the auction and sale of the particular erven was illegal and a transgression of the Namibian Constitution.Judges Kato van Niekerk and Annel Silungwe, as well as Judge President Petrus Damaseb, dismissed Davin’s application on the grounds that the allegations on which Grobbelaar’s application relies have no bearing on Davin.Davin was ordered to pay the legal costs of two respondents.Grobbelaar’s application was granted.From the court’s reasons, written by Judge Van Niekerk, it has now emerged that the court agreed with him that, as a taxpayer, he had the right to question municipal procedures and decisions.The Walvis Bay Town Council insisted that it had the discretion to apply its land policy and its policy of transformation to the sale of erven.The court ruled that the Municipality’s land policy and the way that it was applied at the auction was clearly discriminatory on the basis of skin colour and therefore in violation of the Constitution.The Court stated that Parliament has not enacted legislation under the Constitution’s provision on affirmative action to allow for the implementation of such a land policy.The Constitution’s provision on affirmative action allows Parliament to pass laws providing for the advancement of Namibians who have been socially, economically or educationally disadvantaged.Therefore, the Court decided, the auction was “clearly illegal”.According to a press release by the Municipality, it remains committed to the principle of transformation.It stressed that the findings of the Court only related to the application for interim relief and that the test to be applied when the review of the application itself was decided would be much more stringent.The interim relief is effective until the case will be heard in court again on January 12 2006.Reasons for that order have only now been handed down by the court.At the auction that took place on December 19 2003, some 180 erven were offered exclusively to previously disadvantaged buyers.Transfer was supposed to take place in March this year.Walvis Bay businessman Willem Grobbelaar opposed the auction and, along with a developer from Windhoek, Herman Davin, applied to the High Court for an interim interdict to halt the transfer.Grobbelaar and Davin claimed in their application that the auction and sale of the particular erven was illegal and a transgression of the Namibian Constitution.Judges Kato van Niekerk and Annel Silungwe, as well as Judge President Petrus Damaseb, dismissed Davin’s application on the grounds that the allegations on which Grobbelaar’s application relies have no bearing on Davin.Davin was ordered to pay the legal costs of two respondents.Grobbelaar’s application was granted.From the court’s reasons, written by Judge Van Niekerk, it has now emerged that the court agreed with him that, as a taxpayer, he had the right to question municipal procedures and decisions.The Walvis Bay Town Council insisted that it had the discretion to apply its land policy and its policy of transformation to the sale of erven.The court ruled that the Municipality’s land policy and the way that it was applied at the auction was clearly discriminatory on the basis of skin colour and therefore in violation of the Constitution.The Court stated that Parliament has not enacted legislation under the Constitution’s provision on affirmative action to allow for the implementation of such a land policy.The Constitution’s provision on affirmative action allows Parliament to pass laws providing for the advancement of Namibians who have been socially, economically or educationally disadvantaged.Therefore, the Court decided, the auction was “clearly illegal”.According to a press release by the Municipality, it remains committed to the principle of transformation.It stressed that the findings of the Court only related to the application for interim relief and that the test to be applied when the review of the application itself was decided would be much more stringent.The interim relief is effective until the case will be heard in court again on January 12 2006.