By Mbatjiua Ngavirue
WINDHOEK
Acting Justice Raymond Heathcote yesterday ruled in favour of the two Enghali brothers, Ben and Josef, in the urgent application they brought in the High Court against Ministry of Lands official Erastus Nghishoono.
The application also listed the Ministry of Lands and Resettlement and the Government of Namibia as second and third respondents respectively.
The Enghalis however sought no relief against these respondents in yesterday’s application. Advocate George Coleman, instructed by Sisa Namandje Legal Practitioners, appeared for the applicants.
Coleman told the court that late on Friday afternoon Nghishoono’s attorneys, Metcalfe Legal Practitioners, approached the Enghalis’ attorneys to negotiate an out-of-court settlement.
He further said that Nghishoono’s attorneys gave indication they would file notice to oppose the application.
Representatives of Metcalfe Legal Practitioners did not appear at the hearing, apparently because the two parties did reach an out-of-court settlement on Friday.
Acting Judge Heathcote looked at his watch, and as it was already past the time set for the hearing, proceeded to rule in favour of the Enghalis.
A representative of Metcalfe Legal Practitioners said the ruling made by Justice Heathcote yesterday was more or less consistent with the out-of-court settlement reached between the two parties.
She however said that acting on their client’s instructions they would soon file a notice of eviction against the Enghalis in court. The judge ruled in favour of the Enghalis on at least three of the main counts of the application.
He ordered Erastus Nghishoono, and anyone acting on his behalf, to immediately restore the water supply to the Enghalis’ livestock on the farm Schellenberg in the Omaheke Region.
He further issued an injunction preventing Nghishoono, or anyone acting on his instructions, from in any way interfering with the Enghalis’ occupation of Unit B of farm Schellenberg. These two rulings are however tied to the respondents giving reasons why the orders should not be made final before two important conditions are met. The first is that the rulings stand, pending the resolution of the dispute in respect of the Enghalis’ right to occupy Unit B of Farm Schellenberg No. 79, Omaheke Region.
The other condition is that in the alternative the Government must allocate the Enghalis land in terms of the Agricultural (Commercial) Land Reform Act of 1995. The ruling made by Judge Heathcote is an interim order, with August 31, 2007 set as the date for a final order. The applicants asked the respondents to give notice by August 20, 2007 and file opposing affidavits by August 23, 2007, if they intend opposing a final order in the applicants’ favour.
In their separate founding affidavits, the Enghalis castigated the second respondent, the Ministry of Lands and Resettlement.
“We find it surprising that an official of second respondent, who has a job, gets allocated land while we are left in limbo. I say it is improper and smacks of corruption,” they charged.
The Enghalis told the court their animals ran out of water almost two weeks ago, and that they are suffering grievously with one cow having already died.
They said they have had to cart water in canisters on a daily basis from a neighbouring farm about 15 kilometres away to supply water to approximately 750 animals.
“It is virtually impossible, with our resources, to keep this up and provide for all the animals. We fear that we will lose most of our livestock – our livelihood – if the situation is not restored,” they stated.
The Enghalis cited the Ministry of Lands and Resettlement as second respondent because it is responsible for the administration of the Agricultural (Commercial) Land Reform Act of 1995.
They also included the Government of Namibia as third respondent because of any interest it may have in the matter, saying the issue goes to the heart of the land resettlement programme in Namibia.
The Enghalis have been embroiled in a long-running dispute with former resettlement official in the Omaheke Region, Nghishoono, over their occupation of the resettlement farm Schellenberg 79.
Nghishoono together with former Deputy Director of Resettlement Simeon Kanyemba allegedly brought the Enghalis to stay on Schellenberg after the officials evicted them from Drimiopsis in 2002.
They alleged the two officials brought them there on the promise that the Ministry of Lands and Resettlement agreed to officially resettle them on the farm until it could find another farming unit for them.
Included in the affidavit is a document in which Nghishoono claims he had a personal arrangement with them, which was illegal. The two brothers however deny they did anything illegal.
“We always understood that first respondent dealt with us as an official of second respondent. In any event, if he wants us off the land he should act in terms of the law,” they said.
A letter the Enghalis received from the Permanent Secretary of Lands and Resettlement earlier this month, on July 9, apparently prompted them to turn to the courts as a last resort. They said that in the letter Tsheehama asserts that “(a)ccording to our investigations…” they occupy the farm illegally.
“[We] deny this and say it is the second respondent’s obligation to resettle us. We occupy this land with the consent of its officials. If they want us off this land, they should allocate land to us instead of favouring second respondent’s officials.
“Furthermore, shutting off the water is unlawful and an inappropriate measure to force us off the land. We have nowhere to go,” they said.
In a related development, the government has shifted Tsheehama from the Ministry of Lands and Resettlement to the Ministry of Fisheries and Marine Resources in government’s latest reshuffle of permanent secretaries.
His replacement at Lands and Resettlement is former Justice PS, Lidwina Shapwa, known to have strong legal credentials.