The hearing in which government and President Hage Geingob are asking the High Court for leave to appeal the Supreme Court decision to dismiss the exception application in a case in which the Affirmative Repositioning (AR) movement is suing the authorities for failing to service and deliver 200 000 plots in urban areas countrywide, is set for August.
Earlier this year, High Court Judge Orben Sibeya dealt government and the President a blow when he dismissed their objection against AR’s particulars of claim, which would enforce the agreement to service 200 000 erven countrywide – should the suit succeed.
The said agreement was reached during a meeting between AR leaders and Geingob held at State House in July 2015. Government has thus far only serviced 15 000 plots countrywide.
The court has now given the date of 20 August for the parties to argue the matter before it can pass judgement.
In their application, government is claiming 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 claim, 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.
“It is not the definition of radical that would make the occupation unlawful, instead, it is the lack of consent from the owner of land agreeing to the occupation that makes the occupation of that land unlawful,” states government in their heads of arguments.
It is government’s argument that should the court enforce the said agreement, it would be detrimental as a person who does not have consent from the owner of the land can through extortion purportedly acquire a right that can be enforced by a court of law in respect of that land.
AR, who will be opposing the application, have indicated in their heads of argument that government bear the onus to show on a balance of probabilities that they have a prospect of success on appeal based on one or more misdirection committed by the trial court on the law or facts.
This, according to AR, was not done and the approach by the government to seek the guidance of the Supreme Court in this instance is not justified.
Thus, “the leave to appeal by the applicant in this matter, and the particulars of claim of the plaintiff (government) should not be taken as a whole to deviate from the fact that there was a valid agreement entered into by the parties,” states AR.
For their application, government is represented by Dennis Khama, while AR is represented by Kadhila Amoomo.