Expropriations target German land owners, High Court hears

THE action taken by Government to expropriate four farms belonging to German nationals was discriminatory and specifically targeted at them, while proper procedures as stipulated by laws and the Constitution were not followed, the High Court heard yesterday.

For the first time since farm expropriations started in 2005, farm owners are challenging the decision. Senior Counsel Adrian de Bourbon, who originally hails from Zimbabwe, but is now based in Cape Town, told Judges Annel Silungwe and Louis Muller that the Land Reform Advisory Commission (LRFAC) had merely rubber-stamped a decision taken by Cabinet more than a year earlier that 26 foreign-owned commercial farms should be expropriated, among them the four farms whose owners brought the matter to court.”We do not challenge the right to expropriate, but the way in which it was done and that it targets German citizens,” De Bourbon said during the four-and-a-half hours he took to deliver his arguments yesterday.With him was Rudi Cohrssen, instructed by Ulrich Etzold of Etzold-Duvenhage law firm.De Bourbon argued that a treaty was signed between Germany and Namibia that protected the investments of German nationals in Namibia, but the farm expropriations contravened that treaty.”Article 16 of the Namibian Constitution allows all persons [in Namibia] the right to acquire, own and dispose of all movable and immovable property, provided Parliament prohibits or regulates such right regarding persons who are not Namibian citizens,” De Bourbon told the judges.The Agricultural (Commercial) Land Reform Act was a very carefully crafted law, he continued.It allowed the Land Ministry to expropriate land after the Minister and the owner were unable to negotiate the sale of the land once Government decided to buy a farm.”Only when the negotiations were unsuccessful can a decision for expropriate be made.Once he has formed that view, the Minister must first consult with the Land Reform Advisory Commission (LRFAC) and thereafter serve the expropriation notice.”This was not done, he said.De Bourbon said that Cabinet already decided on February 17 2004 to expropriate the 26 farms, including the four which brought about the court challenge.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 Commission was not consulted, it merely had to rubber-stamp a Cabinet decision.”The two farms belonging to Gunter Kessl were only inspected in July 2005, a long time after the Cabinet decision of February 2004.”The chronology of the different steps required for expropriation were not followed and the requirements of the law were not fulfilled,” De Bourbon argued.”The sole criteria used by the Lands Minister [President Pohamba had this portfolio in 2004] and endorsed by the Commission was the fact that the farms were owned by foreign nationals, in fact German citizens,” he added.Another wrong committed by the Land Ministry was that it delivered the expropriation notice to Kessl’s and Martin Riedmaier’s law firms, instead of the land owners, which was contrary to what the law prescribed.Two of the farm owners, Gunter Kessl and Christine Riedmaier, wife of Martin Riedmaier, were present during the day’s proceedings.Kessl owns two farms, Gross Ozombutu and Okozongutu West, while Riedmaier owns Welgelegen.The third landowner, Adolf Herburger of Heimaterde, was absent.Several top officials of the Ministry of Lands and Resettlement attended the court hearing and in the afternoon Justice Minister and Attorney General Pendukeni Iivula-Ithana listened to the proceedings.The case continues today, when Senior Counsel Ismael Semenya from South Africa, who just started to deliver his arguments yesterday afternoon, will continue.Government was further represented by Gerson Hinda, Deputy Government Attorney Gerson /Narib and Nkulile Khupe.Senior Counsel Adrian de Bourbon, who originally hails from Zimbabwe, but is now based in Cape Town, told Judges Annel Silungwe and Louis Muller that the Land Reform Advisory Commission (LRFAC) had merely rubber-stamped a decision taken by Cabinet more than a year earlier that 26 foreign-owned commercial farms should be expropriated, among them the four farms whose owners brought the matter to court.”We do not challenge the right to expropriate, but the way in which it was done and that it targets German citizens,” De Bourbon said during the four-and-a-half hours he took to deliver his arguments yesterday.With him was Rudi Cohrssen, instructed by Ulrich Etzold of Etzold-Duvenhage law firm.De Bourbon argued that a treaty was signed between Germany and Namibia that protected the investments of German nationals in Namibia, but the farm expropriations contravened that treaty. “Article 16 of the Namibian Constitution allows all persons [in Namibia] the right to acquire, own and dispose of all movable and immovable property, provided Parliament prohibits or regulates such right regarding persons who are not Namibian citizens,” De Bourbon told the judges.The Agricultural (Commercial) Land Reform Act was a very carefully crafted law, he continued.It allowed the Land Ministry to expropriate land after the Minister and the owner were unable to negotiate the sale of the land once Government decided to buy a farm.”Only when the negotiations were unsuccessful can a decision for expropriate be made.Once he has formed that view, the Minister must first consult with the Land Reform Advisory Commission (LRFAC) and thereafter serve the expropriation notice.”This was not done, he said.De Bourbon said that Cabinet already decided on February 17 2004 to expropriate the 26 farms, including the four which brought about the court challenge.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 Commission was not consulted, it merely had to rubber-stamp a Cabinet decision.”The two farms belonging to Gunter Kessl were only inspected in July 2005, a long time after the Cabinet decision of February 2004.”The chronology of the different steps required for expropriation were not followed and the requirements of the law were not fulfilled,” De Bourbon argued.”The sole criteria used by the Lands Minister [President Pohamba had this portfolio in 2004] and endorsed by the Commission was the fact that the farms were owned by foreign nationals, in fact German citizens,” he added.Another wrong committed by the Land Ministry was that it delivered the expropriation notice to Kessl’s and Martin Riedmaier’s law firms, instead of the land owners, which was contrary to what the law prescribed.Two of the farm owners, Gunter Kessl and Christine Riedmaier, wife of Martin Riedmaier, were present during the day’s proceedings.Kessl owns two farms, Gross Ozombutu and Okozongutu West, while Riedmaier owns Welgelegen.The third landowner, Adolf Herburger of Heimaterde, was absent.Several top officials of the Ministry of Lands and Resettlement attended the court hearing and in the afternoon Justice Minister and Attorney General Pendukeni Iivula-Ithana listened to the proceedings.The case continues today, when Senior Counsel Ismael Semenya from South Africa, who just started to deliver his arguments yesterday afternoon, will continue.Government was further represented by Gerson Hinda, Deputy Government Attorney Gerson /Narib and Nkulile Khupe.