Govt stands its ground on farm expropriations

THE processes to expropriate the farms of three German nationals were not flawed as charged by their legal representatives, the High Court was told yesterday during the second day of a landmark court case.

The three farm owners have challenged the expropriation of their farms, alleging that the Ministry of Lands and Resettlement did not follow correct procedures, that a bilateral protection treaty of investments in Namibia by German nationals was violated and that they were particularly discriminated against because they were German citizens. It is the first time that commercial farm owners have taken legal steps against the expropriation of their land since Government embarked on the exercise two years ago.Yesterday, Deputy Justice Minister Utoni Nujoma and Deputy Lands Minister Isak Katali attended the court proceedings.Representing the State, Ismael Semenya, a Senior Counsel from South Africa, told Judges Annel Silungwe and Louis Muller that the claim that the investment treaty was violated did not hold water.”The investments of German nationals in Namibia are protected by the treaty, but the treaty also states that they could be expropriated or nationalised ‘for public benefit’ and against compensation,” Semenya said.The Cabinet decision of February 2004, when it was decided to expropriate 26 farms, also had Namibian farm owners on the list, Semenya continued, thus no discrimination could be claimed.”It is obvious that (farm) expropriation targets previously advantaged people and those who colonised,” he added.Responding to an argument made on Monday by Adrian de Bourbon, the legal representative of farm owners Gunter Kessl, Martin Riedmaier and Adolf Herburger, that the reason for expropriation was public interest, but had no ground, Semenya said Government had a list of 240 000 people in need of land and resettlement.”That surely is enough reason for public interest,” he argued.He also dismissed De Bourbon’s argument that the Lands Ministry did not consult the Land Reform Advisory Commission (LRAC) as stipulated by the law, but just rubber-stamped a Cabinet decision.”According to the minutes of the meetings held by the Commission, they consulted,” according to Semenya.The day before, De Bourbon pointed out that the meeting where the 26 farms targeted for expropriation were discussed lasted only 30 minutes, as reflected in the same minutes.”This meant each farm was discussed only 70 seconds, that cannot be regarded as consultation,” the lawyer said on Monday.Lastly, Semenya contested De Bourbon’s argument that the expropriation notice for Gunter Kessl was served on the farm manager and the second time on his lawyer.”Mr Kessl comes to Namibia only once or twice per year and he mandated his lawyer to act on behalf of him.The notice could also be served on his lawyer,” the lawyer argued.The Agricultural (Commercial) Land Reform Act stipulates that the notice must be served on the farm owner.In his oral arguments yesterday, De Bourbon reiterated his claims of the previous day, that the chronology of the expropriation was procedurally incorrect, as Cabinet had already decided which farms to disown, while the law stipulated that the Lands Minister should first notify a farm owner that Government intended buying the farm for resettlement, then negotiate with the owner and if no agreement could be reached, consult with the Commission and then carry out the expropriation.Judgement was reserved and it is expected that the ruling might only be made in a few months.Kessl owns the farms Gross Ozombutu and Okozongutu-West.He inherited both farms from his father, who bought them in 1973 and 1982 respectively.Farm Heimaterde was bought in 1981 and it is a close corporation.One of the stakeholders is Adolf Herburger.Martin Riedmaier, who owns Welgelegen, bought that farm in 1973.All four farms are situated in the Otjiwarongo area.It is the first time that commercial farm owners have taken legal steps against the expropriation of their land since Government embarked on the exercise two years ago.Yesterday, Deputy Justice Minister Utoni Nujoma and Deputy Lands Minister Isak Katali attended the court proceedings.Representing the State, Ismael Semenya, a Senior Counsel from South Africa, told Judges Annel Silungwe and Louis Muller that the claim that the investment treaty was violated did not hold water. “The investments of German nationals in Namibia are protected by the treaty, but the treaty also states that they could be expropriated or nationalised ‘for public benefit’ and against compensation,” Semenya said.The Cabinet decision of February 2004, when it was decided to expropriate 26 farms, also had Namibian farm owners on the list, Semenya continued, thus no discrimination could be claimed.”It is obvious that (farm) expropriation targets previously advantaged people and those who colonised,” he added.Responding to an argument made on Monday by Adrian de Bourbon, the legal representative of farm owners Gunter Kessl, Martin Riedmaier and Adolf Herburger, that the reason for expropriation was public interest, but had no ground, Semenya said Government had a list of 240 000 people in need of land and resettlement.”That surely is enough reason for public interest,” he argued.He also dismissed De Bourbon’s argument that the Lands Ministry did not consult the Land Reform Advisory Commission (LRAC) as stipulated by the law, but just rubber-stamped a Cabinet decision.”According to the minutes of the meetings held by the Commission, they consulted,” according to Semenya.The day before, De Bourbon pointed out that the meeting where the 26 farms targeted for expropriation were discussed lasted only 30 minutes, as reflected in the same minutes.”This meant each farm was discussed only 70 seconds, that cannot be regarded as consultation,” the lawyer said on Monday.Lastly, Semenya contested De Bourbon’s argument that the expropriation notice for Gunter Kessl was served on the farm manager and the second time on his lawyer.”Mr Kessl comes to Namibia only once or twice per year and he mandated his lawyer to act on behalf of him.The notice could also be served on his lawyer,” the lawyer argued.The Agricultural (Commercial) Land Reform Act stipulates that the notice must be served on the farm owner. In his oral arguments yesterday, De Bourbon reiterated his claims of the previous day, that the chronology of the expropriation was procedurally incorrect, as Cabinet had already decided which farms to disown, while the law stipulated that the Lands Minister should first notify a farm owner that Government intended buying the farm for resettlement, then negotiate with the owner and if no agreement could be reached, consult with the Commission and then carry out the expropriation.Judgement was reserved and it is expected that the ruling might only be made in a few months.Kessl owns the farms Gross Ozombutu and Okozongutu-West.He inherited both farms from his father, who bought them in 1973 and 1982 respectively.Farm Heimaterde was bought in 1981 and it is a close corporation.One of the stakeholders is Adolf Herburger.Martin Riedmaier, who owns Welgelegen, bought that farm in 1973.All four farms are situated in the Otjiwarongo area.