WINDHOEK
Two foreign nationals who own farms in Namibia are contesting the manner in which expropriation orders were dispensed for the acquisition of their farms by the Ministry of Lands and Resettlement in the High Court.
The applicants, Gunther Kessl and Martin Riedmaier, request that the farms be restored to them and that government decides how the expropriation of their properties should proceed.
Acting on behalf of the applicants, advocate Adrian de Bourbon, flown in from Cape Town, South Africa, said the case was brought before the court to review both the decision to expropriate the farms, and the process by which those decisions were reached.
De Bourbon argued that the entire expropriation process was “skewed”.
The farms came under the spotlight after a 2004 Cabinet decision to have a list of farms owned by “absentee landlords” expropriated as part of the country’s land reform and resettlement process.
The then Minister of Lands and Resettlement, and current President Hifikepunye Pohamba, presented the list to the Land Reform Advisory Commission on May 10, 2004.
Kessl, a German national, was given notice on the same day that his farm, Heimaterde, had been identified for acquisition.
Kessl was invited to make an offer to sell the farm to the State, but he declined to enter into an agreement with the ministry to that effect.
In December 2004, the commission, without having been consulted by the minister about Kessl’s refusal to sell his farm, proceeded with the expropriation notices. About eight months later, the notices of expropriation were issued.
De Bourbon said the original expropriation notices had been factually incorrect and not served on Kessl.
He said that no inspection had been undertaken on the farm as prescribed by law to determine why the particular farm had been deemed appropriate for expropriation.
Instead, he said, inspection only took place on July 12, 2005.
“There was no consideration of that report as a basis for the decision to expropriate, let alone for the consultation process with the commission,” said De Bourbon in his heads of arguments before the court.
“It should be considered by the minister whether the land he intends acquiring is suitable and should be made available for agricultural purposes to certain identifiable Namibian citizens … This means that an analysis should be done whether the particular land which the minister has in mind, is – from an agricultural perspective – suitable to be made available to those specific landless Namibians for agricultural purposes,” argued De Bourbon.
The sequence of events, he said, showed a failure by the minister and commission to appreciate the role of each in the acquisition process, as well as the timing of the various processes within the legal framework.
“Decisions were made without the full facts on each farm, based only on the decision of Cabinet to expropriate the farms in question.”
He said the ministry had an ulterior motive, which is the intention to deprive foreign nationals from owning land in Namibia, and acted unreasonably.
He argued that the expropriation orders were contrary to the principles of legality.
“The redistribution of land in Namibia can only take place in terms of the law.”
Advocate Gerson Hinda acts on behalf of the Ministry of Lands and Resettlement.
Judges Louis Muller and Anel Sikungwe are presiding over the case.
The matter will continue before the High Court today and tomorrow.