‘Racist’ auction rapped

THE Walvis Bay Municipality violated the Constitution’s prohibition of racial discrimination when it excluded white people from part of an auction of sea-front plots at the coastal town about two years ago, the High Court was told during a hearing on the legality of the auction yesterday.

More than two years after the auction of December 19 2003, and almost a year and nine months after property developer and estate agent Willem Grobbelaar obtained an interim High Court order to stop the transfer of the ownership of the 88 erven sold at the auction and a subsequent private sale, Grobbelaar’s complaints against the legality of the auction received a second airing in the High Court yesterday. SEEKING OUT OF COURT SETTLEMENTThe hearing of Grobbelaar’s case against the Walvis Bay Municipal Council, the town’s Mayor and the Chairperson of the Municipal Council of Walvis Bay ended earlier than anticipated, though, when, after a morning session of arguments before Judge Louis Muller, the prospect that the case may be settled was raised.With the opposing parties apparently engaging in talks that may settle their dispute, the hearing did not continue yesterday afternoon.UNCONSTITUTIONAL AND ILLEGAL The parties are set to return to court this morning, and might then indicate to Judge Muller whether the case had been settled, or whether he will have to continue hearing arguments.Grobbelaar and a fellow property developer, Herman Davin, are asking the High Court to set aside the auction as unconstitutional and illegal.Their main objection against the auction focuses on the fact that the Walvis Bay Municipality allowed only what it described as “previously disadvantaged/excluded Namibians” – that is, only non-white Namibians – to bids for the 88 erven offered for sale in the first part of the auction.This meant that white people, such as Grobbelaar and Davin, were not allowed to take part in that stage of the auction – a prohibition that amounted to the sort of racial discrimination that the Constitution expressly outlaws, according to Grobbelaar and Davin.Erven that were not sold in that first part of the auction – in which 25 plots, including 12 much sought-after seafront erven, were sold – were again offered for sale in the second stage of the auction, where there was no colour-based bar on prospective buyers.Another 19 erven were sold in the second stage of the auction.Forty-four plots that remained unsold after that stage of the auction were later sold in private transactions between the town authorities and buyers.None of the buyers have however been able to have the ownership of the plots transferred into their names, because the legal action that Grobbelaar and Davin took against the Municipality has in effect suspended the sales in limbo until the finalisation of the case.THE CONSTITUTION SPEAKSThe legal counsel representing Grobbelaar and Davin, Reinhard Toetemeyer, told Judge Muller yesterday that the question of the legality of the Municipality’s exclusion of white prospective buyers from the first part of the auction was something that a full bench of the High Court had already decided when it gave the interim order to prevent the transfer of ownership of the erven sold at the auction.The reasons for the full bench’s decision were handed down only in the middle of November last year.These reasons make it abundantly clear that the three Judges who were on the bench with the hearing of that first stage of the litigation, were of the opinion that the Municipality’s policy to exclude white buyers from the first part of the auction was discriminatory, illegal and a violation of the Constitution, Toetemeyer told Judge Muller.He quoted the relevant part of the three-Judge bench’s decision to Judge Muller: “The so-called land policy and the manner in which it was applied at the auction is clearly discriminatory on the grounds of colour and therefore in violation of Article 10.Parliament has not enacted legislation under Article 23 (2) to provide for the implementation of such a policy.As such it is clearly illegal.”Article 10 of the Namibian Constitution prohibits discrimination on a number of grounds, including colour, ethnic origin and social or economic status.It is not a wholly unqualified prohibition, though.The Constitution’s Article 23, which deals with apartheid and affirmative action, helps see to that.Article 23 (2) states that nothing contained in Article 10 will prevent Parliament from passing laws providing for the advancement of persons in Namibia who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices.That part of the Constitution also allows Parliament to pass legislation for the implementation of policies and programmes aimed at redressing social, economic or educational imbalances in Namibian society arising out of past discriminatory laws or practices.TWO LAWYERS, TWO OPINIONS The policy that the Walvis Bay Municipality claims it was implementing when it allowed only “previously disadvantaged/excluded Namibians” to take part in the first stage of the auction, had no backing legislation to make it legal, Toetemeyer argued.In the absence of such covering legislation, the Walvis Bay Municipality was perpetrating racial discrimination, he told Judge Muller.The Municipality’s counsel, Rudi Cohrssen, has not yet had an opportunity to verbally place his arguments before the court.Written arguments from him have been filed, though, and these indicate that he is set to challenge Toetemeyer’s interpretation of the effect of the full bench’s designation of the auction as discriminatory and illegal.Those findings by the full bench are not binding on the court that is comprised of Judge Muller, Cohrssen’s written arguments state, simply because the approach that the earlier court had to follow to assess and decide the facts on which the earlier application for an interim interdict was based, is materially different from the approach that should be followed now that a final order is being asked for, he is arguing.Cohrssen points out that the Walvis Bay Municipality decided to implement what it calls its “Preference Policy” at the auction due to “the particular demographic issues prevalent in Walvis Bay”.”(T)hat area, Meersig, was comprised of properties owned almost exclusively by White people,” Cohrssen’s arguments state.The exclusion of Grobbelaar and Davin from taking part in the auction was only limited to the first part of the auction, Cohrssen argues in writing.They were fully entitled to participate in the second leg of the auction and to buy property by private treaty should any plots have remained.Given existing inequities in the patterns of land ownership at Walvis Bay, the town’s Municipality was justified in taking action to rectify inequities, he argues: “It is submitted that the current situation cannot be allowed to continue in an open and democratic society based on freedom and equality.In view of these circumstances the policy was justified and necessary.”SEEKING OUT OF COURT SETTLEMENT The hearing of Grobbelaar’s case against the Walvis Bay Municipal Council, the town’s Mayor and the Chairperson of the Municipal Council of Walvis Bay ended earlier than anticipated, though, when, after a morning session of arguments before Judge Louis Muller, the prospect that the case may be settled was raised.With the opposing parties apparently engaging in talks that may settle their dispute, the hearing did not continue yesterday afternoon. UNCONSTITUTIONAL AND ILLEGAL The parties are set to return to court this morning, and might then indicate to Judge Muller whether the case had been settled, or whether he will have to continue hearing arguments.Grobbelaar and a fellow property developer, Herman Davin, are asking the High Court to set aside the auction as unconstitutional and illegal.Their main objection against the auction focuses on the fact that the Walvis Bay Municipality allowed only what it described as “previously disadvantaged/excluded Namibians” – that is, only non-white Namibians – to bids for the 88 erven offered for sale in th
e first part of the auction.This meant that white people, such as Grobbelaar and Davin, were not allowed to take part in that stage of the auction – a prohibition that amounted to the sort of racial discrimination that the Constitution expressly outlaws, according to Grobbelaar and Davin.Erven that were not sold in that first part of the auction – in which 25 plots, including 12 much sought-after seafront erven, were sold – were again offered for sale in the second stage of the auction, where there was no colour-based bar on prospective buyers.Another 19 erven were sold in the second stage of the auction.Forty-four plots that remained unsold after that stage of the auction were later sold in private transactions between the town authorities and buyers.None of the buyers have however been able to have the ownership of the plots transferred into their names, because the legal action that Grobbelaar and Davin took against the Municipality has in effect suspended the sales in limbo until the finalisation of the case.THE CONSTITUTION SPEAKS The legal counsel representing Grobbelaar and Davin, Reinhard Toetemeyer, told Judge Muller yesterday that the question of the legality of the Municipality’s exclusion of white prospective buyers from the first part of the auction was something that a full bench of the High Court had already decided when it gave the interim order to prevent the transfer of ownership of the erven sold at the auction.The reasons for the full bench’s decision were handed down only in the middle of November last year.These reasons make it abundantly clear that the three Judges who were on the bench with the hearing of that first stage of the litigation, were of the opinion that the Municipality’s policy to exclude white buyers from the first part of the auction was discriminatory, illegal and a violation of the Constitution, Toetemeyer told Judge Muller.He quoted the relevant part of the three-Judge bench’s decision to Judge Muller: “The so-called land policy and the manner in which it was applied at the auction is clearly discriminatory on the grounds of colour and therefore in violation of Article 10.Parliament has not enacted legislation under Article 23 (2) to provide for the implementation of such a policy.As such it is clearly illegal.”Article 10 of the Namibian Constitution prohibits discrimination on a number of grounds, including colour, ethnic origin and social or economic status.It is not a wholly unqualified prohibition, though.The Constitution’s Article 23, which deals with apartheid and affirmative action, helps see to that.Article 23 (2) states that nothing contained in Article 10 will prevent Parliament from passing laws providing for the advancement of persons in Namibia who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices.That part of the Constitution also allows Parliament to pass legislation for the implementation of policies and programmes aimed at redressing social, economic or educational imbalances in Namibian society arising out of past discriminatory laws or practices.TWO LAWYERS, TWO OPINIONS The policy that the Walvis Bay Municipality claims it was implementing when it allowed only “previously disadvantaged/excluded Namibians” to take part in the first stage of the auction, had no backing legislation to make it legal, Toetemeyer argued.In the absence of such covering legislation, the Walvis Bay Municipality was perpetrating racial discrimination, he told Judge Muller.The Municipality’s counsel, Rudi Cohrssen, has not yet had an opportunity to verbally place his arguments before the court.Written arguments from him have been filed, though, and these indicate that he is set to challenge Toetemeyer’s interpretation of the effect of the full bench’s designation of the auction as discriminatory and illegal.Those findings by the full bench are not binding on the court that is comprised of Judge Muller, Cohrssen’s written arguments state, simply because the approach that the earlier court had to follow to assess and decide the facts on which the earlier application for an interim interdict was based, is materially different from the approach that should be followed now that a final order is being asked for, he is arguing.Cohrssen points out that the Walvis Bay Municipality decided to implement what it calls its “Preference Policy” at the auction due to “the particular demographic issues prevalent in Walvis Bay”.”(T)hat area, Meersig, was comprised of properties owned almost exclusively by White people,” Cohrssen’s arguments state.The exclusion of Grobbelaar and Davin from taking part in the auction was only limited to the first part of the auction, Cohrssen argues in writing.They were fully entitled to participate in the second leg of the auction and to buy property by private treaty should any plots have remained.Given existing inequities in the patterns of land ownership at Walvis Bay, the town’s Municipality was justified in taking action to rectify inequities, he argues: “It is submitted that the current situation cannot be allowed to continue in an open and democratic society based on freedom and equality.In view of these circumstances the policy was justified and necessary.”