By Catherine Sasman
WINDHOEK
Judgment was reserved by the High Court in the matter of three German nationals who are contesting the expropriation of their farms by the Namibian Government.
Presiding judges Louis Muller and Annel Shilungwe had, however, not indicated a date for the judgment.
It is anticipated that it could take up to three months before the court gives its ruling on the matter.
Following a 2004 Cabinet decision to expropriate 25 farms owned by 16 individuals, four of the farms owned by applicants Gunter Kessl, Martin
Riedmaier and Adolf Herburger were served with notices to that effect.
This is a landmark case as it is the first time that expropriation orders on farmlands are being challenged before a Namibian court.
The owners refused government’s offer to buy their farms. The Minister of Lands and Resettlement at the time, Hifikepunye Pohamba, however, proceeded to give notice that the farms of the applicants had been identified for acquisition.
Representing the applicants, Adrian de Bourbon argued that decisions to have the farms expropriated were made “without the full facts on each farm” and “based only on the decision of Cabinet to expropriate the farms in question”.
He said the expropriation process was woefully flawed and directed against foreign nationals.
According to the Agricultural (Commercial) Land Reform Act 1995, land can be acquired or expropriated after the Minister of Lands and Resettlement, after consultation with the Land Reform Advisory Commission, decides to acquire any property, and afterwards the minister and owner of the property cannot negotiate on the sale of the property.
De Bourbon presented to the court that no consultation had occurred between the minister and the commission, and that the commission had then merely “rubberstamped” the Cabinet decision to expropriate the farms.
Arguing on behalf of the Ministry of Lands and Resettlement and the Land Reform Advisory Commission, Senior Counsel Ismael Semenya, said that the requirement and procedures to expropriate the farms had in fact been met.
He also said that the applicants do not “offer a morsel of evidence to contest the suitability of the farms for resettlement purposes”.
He further said that consultation between the minister and the commission had taken place before notices of expropriation were issued.
He argued that in terms of Article 16 of the Namibian Constitution, the State may expropriate property in the public interest, and that this does not require further compliance with the common law.
He said government’s decision to expropriate the farms “was made in good faith and was not arbitrary or irrational”.
“There is clearly a rational connection between the decision to expropriate and the purpose sought to be achieved by that expropriation,” said Semenya.
He said after the minister consulted the commission, the government had a general idea on the number of farms it would expropriate for resettlement, guided by various criteria which state: ‘the absentee landlord; farms being used and that can disturb our hard won peace and stability in this country; farms that are too large, such as the unimaginable 65 000 hectares owned by one individual; many farms owned by one individual; farms located in areas from which no offers are forthcoming such as Otjiwarongo, Khomas, Okahandja, and the like’.
“It is evident that the farms belonging to the applicants answer to the criteria of absentee landlord and farms located in areas where offers [under the willing buyer/willing seller arrangement] are not forthcoming,” argued Semenya.
Contrary to the claim by the applicants that their farms had not been inspected before a decision to expropriate them had been made, said Semenya, the ministry and commission has in possession records “which have the essential characteristics of the commercial agricultural land available” in Namibia such as the “rainfall patterns, vegetation, topography and related data”.
He added that the nationalities of the farm owners had nothing to do with the expropriation orders, as argued by the applicants’ counsel.