The attorney general’s office has filed an application to appeal the decision of Windhoek High Court Judge Orben Sibeya who shot down their objection against the particulars of claim in an application by the Affirmative Repositioning (AR) movement to have government honour their commitment to service 200 000 erven countrywide. The meeting between AR leaders and President Hage Geingob was held at State House in July 2015. After the government failed to service the erven as agreed in a meeting, the movement applied to the High Court to have the agreement enforced.
Government opposed the application and brought an objection that the particulars of claims in the application are vague and embarrassing in some respects and lacks averments in law that are necessary to sustain an action.
The judge dismissed the objections and ordered the government pay the costs of the matter.
They have now applied to appeal against both orders.
According to the government, the High Court should have upheld the objections with costs.
They argue Judge Sibeya erred in law and on facts in the manner he approached, adjudicated and rejected their argument that the “alleged” agreement was not enforceable as it is against public policy or the rule of law.
They further argue the High Court differs materially from several judgments of the Supreme Court where it was stated that a court must determine whether or not an agreement or contract is indeed enforceable or is contrary to public policy.
In this case, they said, AR had no lawful rights to invade private land and occupy such land.
This is in relation to threats made by AR leaders to grab land.
In any event, they said, the President could not enter into an agreement when it is not lawful and as such, the agreement reached between AR and the President that it will service erven in exchange for AR stopping unlawful occupation of land is not enforceable, as it does not create legally valid and enforceable contractual obligations.
In opposition to the appeal application, AR, represented by Kadhila Amoomo, said the applicants bear the onus to show on a balance of probabilities that they have a prospect of success on appeal based on one or more misdirections committed by the trial court on the law or facts.
This was not done and the approach by the government to seek the guidance of the Supreme Court in this instance is not justified, he argued.
According to Amoomo, where the application hinges on the interpretation of the law, the onus rest squarely on the applicant to show in what manner or the extent to which the interpretation given by the court was wrong and open to interpretation favourable to the applicant.
He further reiterated the basis of the leave to appeal against the judgment is rooted in the averment in their particulars of claim that the agreement entered into between the parties was not against public policy and that the defendants breached the contract of servicing 200 000 housing plots and instead merely serviced 15 000 plots countrywide.
He asked the application or leave to appeal be dismissed with costs.
The government attorney is represented by Neliswa Tjahikika and the matter was postponed to 1 July for allocation of a date to hear the application.