By Mbatjiua Ngavirue
WINDHOEK
A judge has postponed the hearing of the urgent application brought by the two Enghali brothers against a Ministry of Lands and Resettlement official, the Ministry itself and the Government of Namibia.
Judge-President Petrus Damaseb on Friday postponed the hearing into the matter to Friday.
First respondent in the case, Lands official, Erastus Nghishoono, failed to meet the August 23 deadline set by the court for filing an opposing affidavit.
After hearing the arguments of the applicants on July 30, 2007, Acting Judge Raymond Heathcote set August 31, 2007 as the return date for hearing the respondents’ case.
Metcalfe Legal Practioners representing Nghishoono, however, only filed their opposing affidavit on the same morning as the scheduled hearing.
The Ministry of Lands and Resettlement and the Government of Namibia, however, filed an opposing affidavit within the set deadline, indicating intent to defend the case.
The Enghalis’ legal counsel, Johannes Kamanja, attempted to move a ruling in favour of the applicants based on Nghishoono’s late submission of his opposing affidavit but Justice Damaseb turned down the request.
Justice Damaseb argued that ruling in favour of the applicants, at that stage, would deny the respondents a fundamental right of the other side to be heard as guaranteed by the law.
Furthermore, Justice Damaseb said he could not dismiss Nghishoono’s opposing affidavit without knowing whether it presented valid grounds for condoning late submission.
First and second applicants Ben Aluendo Enghali and Josef Shefeni Enghali requested the High Court for an interim judgment against Erastus Nghishoono.
They requested the court to order Nghishoono to immediately restore water supply to their livestock on Unit B of farm Schellenberg No 79 and the order also to cover anyone acting on Nghishoono’s instructions.
They further requested the court for an order restraining Nghishoono or his employees, from in any way, interfering with their occupation of Unit B of Schellenberg Farm.
The Enghalis sought an interim order pending the resolution of the dispute surrounding their right to occupy farm Schellenberg 79, Omaheke Region.
In the alternative, they requested the relevant authorities to grant them land in terms of the Agricultural (Commercial) Land Reform Act of 1995.
The applicants, however, sought no specific relief against the second and third respondents in their urgent application.
In his answering affidavit Nghishoono states that he is the legal occupant of farm Schellenberg No 79 in the Omaheke Region, in terms a lease agreement he has with the Ministry of Lands and Resettlement.
He says the Enghalis have occupied the farm through a private arrangement between himself and them.
According to Nghishoono, it was, however, an express term of the arrangement that the Enghalis would make provision for their own water.
This meant they would pump water with their own diesel from one of the two water supplies available on the farm.
The farm, he says, is divided into 10 camps, three of which he occupies while the Enghalis occupy four, with the remaining three kept in reserve for rotational grazing.
He says there are two water points available on the farm, one used for his livestock and the other for the Enghalis to supply water to their animals.
The Enghalis’ water point, however, broke down and although the Government is responsible for maintenance of water points, he repaired it from his own pocket for the Enghalis’ use.
Two months after he repaired it, the same water point broke down again.
When that happened he indicated to the Enghalis that it was now their responsibility to repair and maintain the water point.
The Enghalis, however, requested Nghishoono’s permission to use his water point until they could repair theirs.
He agreed to this on condition that they use their own diesel to pump water from his water point to theirs.
“Despite our aforesaid arrangement and instead of pumping water from my water point to their camps, the applicants brought their livestock to my reservoir causing their animals to mix with mine.
“As this was contrary to our agreement I instructed my employees to interrupt the water supply to the applicants.”
Nghishoono goes on to admit that the Enghalis occupied Drimiopsis Communal Land before 2002.
“…but submit that such occupation was never warranted by myself, nor the second or third respondents and as a result such occupation was illegal.
“In addition hereto, the applicants illegally operated a ‘cuca shop’ on the said communal land.
“When this came to the respondents’ knowledge, the applicants were requested to vacate such communal land. I admit being involved in this process.”
He states that he brought the applicants to Unit B of farm Schellenberg No 79 in his personal capacity, and not as an employee and officer of the second and/or third respondents.
The Enghalis, he added, were at all times aware of this, denying that former Deputy Director for Resettlement, Simeon Kanyemba, was involved in the arrangement.
The Enghalis, therefore, could never have construed the agreement as something which included or bound the second or third respondents in any way.
“Nor were the applicants ever promised relocation as alleged. I merely wanted, as an act of goodwill, to assist the applicants in order for them to continue with their farming activities.”