Walvis plot policy ‘lacks legal status’

AFFIRMATIVE action and black empowerment policies are illegal unless implemented through legislation, a lawyer opposing the Walvis Bay municipality’s exclusive sale of plots to black Namibians said yesterday.

Willem Olivier, a Senior Counsel from Bloemfontein, South Africa, presented the argument in the High Court, where his client Willem Grobbelaar brought an urgent application asking that an auction sale be halted because one of two auctions excluded whites. Article 23 of the Namibian Constitution, on which the Walvis Bay Council is basing its defence for the preference auction for blacks ” needed national legislation”.”The so-called policy of the local authority was never adopted [as part of legislation].A policy by itself has no legal status.A local authority is a creature of authority [law].It has no standing by itself,” Olivier said.Grobbelaar and fellow Walvis Bay resident and property developer Herman Martin Georg Davin want the transfer of prime properties at Meersig and Long Beach (Langstrand) to be nullified.They have raised points about discrimination and also argue that the Council failed to follow procedures in the Local Authorities Act, such as advertising seven days before the auction.”We’ve got a case about the discrimination against my client,” said Olivier.”They admit it that there was discrimination against white persons, my goodness.They knew it.”The municipality stated in court papers that its policy was necessary because of anti-black programmes that Grobbelaar had presided over as a councillor for Walvis Bay.But the lawyer for the plaintiffs further argued that it would be unconstitutional to have policies that “deprive a person from acquiring property”, though programmes could be implemented to regulate ownership, such as with land reform.This prompted Acting Judge Petrus Damaseb to ask whether authorities would be hamstrung “even if there was legislation”.Olivier said that might be debatable.It is not clear what the implication of the application to set aside the auction and discredit Walvis Bay’s black empowerment scheme would be if it was successful.But yesterday, lawyers for Grobbelaar as applicants, and those for the Walvis Bay Municipality, the Mayor and the chairperson of its management committee were fighting over whether the High Court should make an interim ruling to put on hold the transfer of the Meersig and Long Beach (Langstrand) plots bought during an auction on December 19 and afterwards.Dave Smuts, representing the Walvis Bay Council said the case was not urgent.He said that Grobbelaar, a former apartheid town councillor himself, had been aware of the auction and the affirmative action policies but had done nothing to stop the auction.Smuts accused Grobbelaar of “lack of candour” [quality of being open and honest] and perpetrating “falsehood, being disingenuous and of obfuscation [making unclear] of fact”.He also said that Grobbelaar appeared to have set out to mislead the court by suggesting in his initial affidavits that he went to collect auction papers from the municipal building himself, but changed the story when municipal officials said he was not at their offices.As a result of “deliberate untruths being perpetrated in the papers,” said Smuts, “this is the most undeserving application in refusing or granting urgency”.Earlier, Olivier had charged the respondent was “mischievous, haphazard, vexatious and reckless” by bringing a late application to have Grobbelaar’s urgency appeal struck down.While Smuts argued that Grobbelaar did not have legal standing or direct interest to launch the application, Olivier said his client had the right as a taxpayer and property developer.The case, which was set for yesterday only, will continue today before a full bench of Judge Annel Silungwe, Acting Judges Kato van Niekerk and Damaseb.Rudi Cohrssen, Lucia Hamutenya, Richard Metcalfe and Smuts are appearing for Walvis Bay council.AB Naude, Reinhard Toetemeyer and Olivier are representing Grobbelaar and Davin.Article 23 of the Namibian Constitution, on which the Walvis Bay Council is basing its defence for the preference auction for blacks ” needed national legislation”.”The so-called policy of the local authority was never adopted [as part of legislation].A policy by itself has no legal status.A local authority is a creature of authority [law].It has no standing by itself,” Olivier said.Grobbelaar and fellow Walvis Bay resident and property developer Herman Martin Georg Davin want the transfer of prime properties at Meersig and Long Beach (Langstrand) to be nullified.They have raised points about discrimination and also argue that the Council failed to follow procedures in the Local Authorities Act, such as advertising seven days before the auction.”We’ve got a case about the discrimination against my client,” said Olivier.”They admit it that there was discrimination against white persons, my goodness.They knew it.”The municipality stated in court papers that its policy was necessary because of anti-black programmes that Grobbelaar had presided over as a councillor for Walvis Bay.But the lawyer for the plaintiffs further argued that it would be unconstitutional to have policies that “deprive a person from acquiring property”, though programmes could be implemented to regulate ownership, such as with land reform.This prompted Acting Judge Petrus Damaseb to ask whether authorities would be hamstrung “even if there was legislation”.Olivier said that might be debatable.It is not clear what the implication of the application to set aside the auction and discredit Walvis Bay’s black empowerment scheme would be if it was successful.But yesterday, lawyers for Grobbelaar as applicants, and those for the Walvis Bay Municipality, the Mayor and the chairperson of its management committee were fighting over whether the High Court should make an interim ruling to put on hold the transfer of the Meersig and Long Beach (Langstrand) plots bought during an auction on December 19 and afterwards.Dave Smuts, representing the Walvis Bay Council said the case was not urgent.He said that Grobbelaar, a former apartheid town councillor himself, had been aware of the auction and the affirmative action policies but had done nothing to stop the auction.Smuts accused Grobbelaar of “lack of candour” [quality of being open and honest] and perpetrating “falsehood, being disingenuous and of obfuscation [making unclear] of fact”.He also said that Grobbelaar appeared to have set out to mislead the court by suggesting in his initial affidavits that he went to collect auction papers from the municipal building himself, but changed the story when municipal officials said he was not at their offices.As a result of “deliberate untruths being perpetrated in the papers,” said Smuts, “this is the most undeserving application in refusing or granting urgency”.Earlier, Olivier had charged the respondent was “mischievous, haphazard, vexatious and reckless” by bringing a late application to have Grobbelaar’s urgency appeal struck down.While Smuts argued that Grobbelaar did not have legal standing or direct interest to launch the application, Olivier said his client had the right as a taxpayer and property developer.The case, which was set for yesterday only, will continue today before a full bench of Judge Annel Silungwe, Acting Judges Kato van Niekerk and Damaseb.Rudi Cohrssen, Lucia Hamutenya, Richard Metcalfe and Smuts are appearing for Walvis Bay council.AB Naude, Reinhard Toetemeyer and Olivier are representing Grobbelaar and Davin.