Ruling reserved on Walvis Bay’s AA-based property auction

THE High Court has reserved judgement on an urgent application to halt the transfer of land that was sold at an allegedly discriminatory auction at Walvis Bay in December.

The hearing of the application of Walvis Bay property developer Willem Grobbelaar and Windhoek property developer Herman Davin, was concluded before Judge Annel Silungwe and Acting Judges Petrus Damaseb and Kato van Niekerk yesterday afternoon. The case that Grobbelaar and Davin are pursuing against the Walvis Bay Municipal Council, the town’s Mayor, the Chairperson of its Management Committee, the Registrar of Deeds and the buyers of 88 erven that were on sale at the December 19 auction, could prove to be a test case not only for the harbour town’s affirmative action property sale policy, but also for other, similar policies that may be in place in other towns in Namibia.Grobbelaar and Davin want the court to stop the transfer of plots that were on sale at the auction until a further application that they have in the pipeline has been finalised.In their other case, they will ask the High Court to set aside the proceedings of the December 19 auction and also the affirmative action conditions attached to it.Prospective bidders on 87 erven in Walvis Bay’s Meersig area plus another plot at Langstrand, that were to be sold at a public auction were informed shortly before the auction that it would be for “previously disadvantaged/excluded Namibians only”.Plots not sold at such a first “affirmative action” auction were to be up for sale again at a second, open auction.The 88 plots included some prime property on the seafront at the town’s lagoon.All of these seafront plots were sold at the auction.According to the Municipality’s records, the highest price paid was N$680 000.This was for an erf that was, however, initially – until a day before the auction – not included in the list of properties to be auctioned.The same buyer who bought that plot, Joan Guriras, also bought the adjacent erf, for the auction’s second-highest price of N$463 520.Grobbelaar and Davin claim that the conditions set by the Walvis Bay Municipality were racially discriminatory and infringed on various of their constitutional rights, such as their right to equality and not to be discriminated against on the basis of race, their right to dignity and their right to acquire or own property in Namibia.On the part of the town authorities, Walvis Bay Chief Executive Officer Augustinus Katiti said in an affidavit that the Municipality’s affirmative action property sale policy was motivated by a wish to overturn the effects of racially discriminatory policies that prohibited land sales to black people in parts of the town until its re-integration with Namibia 10 years ago.Dave Smuts, the leading counsel in the team of lawyers representing the Walvis Bay town authorities, also asked the court to consider the context – one of officially sanctioned racial discrimination until as recently as 10 years ago – in which the town council decided on the affirmative action property sale policy.In an article dealing with apartheid and affirmative action, the Constitution guarantees that equality and freedom from discrimination shall not prevent Parliament from enacting legislation that is:* aimed at the advancement of persons who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices, or* 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.Some of the arguments raised in the urgent application were that no such legislation existed on which Walvis Bay’s affirmative action policy could be based.Reinhard Toetemeyer – one of the counsel representing Grobbelaar and Davin – added yesterday that the Constitution also protected the right to acquire and own property.According to the Constitution that right may only be limited or regulated for people who are not Namibian citizens, he said.Both Grobbelaar and Davin are Namibian citizens.The hearing stretched from Thursday into Friday, when it continued until after the High Court’s normal working hours, and also took up the afternoon yesterday.The case that Grobbelaar and Davin are pursuing against the Walvis Bay Municipal Council, the town’s Mayor, the Chairperson of its Management Committee, the Registrar of Deeds and the buyers of 88 erven that were on sale at the December 19 auction, could prove to be a test case not only for the harbour town’s affirmative action property sale policy, but also for other, similar policies that may be in place in other towns in Namibia.Grobbelaar and Davin want the court to stop the transfer of plots that were on sale at the auction until a further application that they have in the pipeline has been finalised.In their other case, they will ask the High Court to set aside the proceedings of the December 19 auction and also the affirmative action conditions attached to it.Prospective bidders on 87 erven in Walvis Bay’s Meersig area plus another plot at Langstrand, that were to be sold at a public auction were informed shortly before the auction that it would be for “previously disadvantaged/excluded Namibians only”.Plots not sold at such a first “affirmative action” auction were to be up for sale again at a second, open auction.The 88 plots included some prime property on the seafront at the town’s lagoon.All of these seafront plots were sold at the auction.According to the Municipality’s records, the highest price paid was N$680 000.This was for an erf that was, however, initially – until a day before the auction – not included in the list of properties to be auctioned.The same buyer who bought that plot, Joan Guriras, also bought the adjacent erf, for the auction’s second-highest price of N$463 520.Grobbelaar and Davin claim that the conditions set by the Walvis Bay Municipality were racially discriminatory and infringed on various of their constitutional rights, such as their right to equality and not to be discriminated against on the basis of race, their right to dignity and their right to acquire or own property in Namibia.On the part of the town authorities, Walvis Bay Chief Executive Officer Augustinus Katiti said in an affidavit that the Municipality’s affirmative action property sale policy was motivated by a wish to overturn the effects of racially discriminatory policies that prohibited land sales to black people in parts of the town until its re-integration with Namibia 10 years ago.Dave Smuts, the leading counsel in the team of lawyers representing the Walvis Bay town authorities, also asked the court to consider the context – one of officially sanctioned racial discrimination until as recently as 10 years ago – in which the town council decided on the affirmative action property sale policy.In an article dealing with apartheid and affirmative action, the Constitution guarantees that equality and freedom from discrimination shall not prevent Parliament from enacting legislation that is:* aimed at the advancement of persons who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices, or* 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.Some of the arguments raised in the urgent application were that no such legislation existed on which Walvis Bay’s affirmative action policy could be based.Reinhard Toetemeyer – one of the counsel representing Grobbelaar and Davin – added yesterday that the Constitution also protected the right to acquire and own property.According to the Constitution that right may only be limited or regulated for people who are not Namibian citizens, he said.Both Grobbelaar and Davin are Namibian citizens.The hearing stretched from Thursday into Friday, when it continued until after the High Court’s normal working hours, and also took up the afternoon yesterday.