WINDHOEK – In a judgment delivered in the Supreme Court, over six years after the case was heard, Judge of Appeal Gerhard Maritz has set aside the decisions of the High Court.
The matter relates to a resettlement farm in Khomas Region allotted to the late businessman and Swapo prominent member David Hosea Meroro during April 2003.
The late Meroro received the farm on a 99-year lease.
After Meroro Sr passed away in January 2004 his widow, Hilia Meroro, became the executrix of his estate and in essence in charge of the farm.
One of the late Meroro’s sons, Michael David Meroro, at that time was farming on the farm and apparently wanted to evict the widow from the farm as he claimed to be the “designated heir” of his late father.
The widow as ‘de facto’ owner of the farm tried to assert her rights to the farm, but was thwarted by Michael who was in actual possession of the farm at that stage.
In order to substitute his late father as the lessee of the farm, Michael sought the minister of lands’ approval, but was rejected and was told that his father’s widow was the new lessee under the relevant Act.
The widow proceeded to demand that Michael vacate the farm failing which she would “take whatever steps might be necessary to secure his eviction or removal from the farm”.
Not taking it lying down, Michael brought an application to the High Court to reverse the minister’s decision and allow him to stay on the farm as the rightful heir.
The matter was heard by Judge Collins Parker who ordered that the decision by the minister to allocate the farm to the widow “is reviewed and set aside” and that Michael must vacate the farm within 14 days.
Judge Parker further ordered that the widow must in her capacity as ‘executrix’ assign the lease of the farm to any person within three months but did not make any order as to costs.
Michael then lodged an appeal in the Supreme Court against the orders of the High Court that he must vacate the farm and that the widow must assign a lessee, as well as the no costs order.
He asked the Supreme Court to set aside the orders of the High Court and to award him costs.
The Minister of Lands, Resettlement and Rehabilitation, the Chairperson of the Land Reform Advisory Council, the Minister of Agriculture, Water and Rural Development and the widow were cited as respondents in the appeal.
The first and second respondents filed a cross-appeal against the High Court decision setting aside the decision to assign the farm to the widow.
This appeal was summarily dismissed by the Supreme Court which said that the minister had no authorisation to assign a lease “in the absence of an assignment by the executrix to a lawful beneficiary in the deceased’s estate”.
For the main appeal in which the appellant, Michael, sought the Supreme Court to set aside the orders of the High Court pertaining to him, the Supreme Court found that none of it was sought on motion by any of the litigants except for the order of costs.
According to the judgment, the order that Michael must vacate the farm within 14 days without affording him a procedurally fair and adequate opportunity to resist it was irregular and could not be sustained.
The order for the widow to assign the lease within three months was equally irregular as no prior notice was given to her and without affording her the opportunity to resist it, the judgment read.
Regarding costs, the appeal judges noted that the appellant, Michael, did not show good cause that the decision of the High Court not to award costs was erroneous, but awarded him costs for the appeal on the scale of instructing and instructed counsel.
Judges of Appeal Simpson Mtambanengwe and Fred Chomba concurred with Judge Maritz, and Jan Strydom appeared on behalf of Michael Meroro while Marcus Nixon represented the respondents.