• June 3rd, 2020

The “Russian lease” is reviewable

Yarukeekuro Steven Ndorokaze

Please allow me space in your publication to highlight a few issues of concern regarding the recently announced lease of four farms to Comsar Properties SA (Comsar) by the state. 

Much of what is to follow is based on the elaborate media statement by the Minister of Land Reform, Utoni Nujoma, as published in the New Era of Thursday 25 October 2018. I am departing from the assumption that the minister has disclosed all material facts of the three-legged (sale, donation and lease) transaction and anything not indicated in his media statement is either subject to justifiable non-disclosure or simply does not exist. Leaning towards the latter as the minister was determined to provide “a comprehensive account of the transaction and clear false allegations…”. It appears safe to conclude that Comsar is a foreign national in terms of Section 1 of the Agricultural (Commercial) Land Reform Act 1995 (Act No. 6 of 1995) (the Act), otherwise Section 58 of the Act referred to by the minister would not apply. 

It is common cause that three of the farms belonged to Rainhoff Farming (Pty) Ltd, while Wolffsgrund Farm CC owned the other farm. However, the minister stated that the Deed of Sale, Donation and Lease was concluded between the Government of the Republic of Namibia and Comsar, seemingly at the exclusion of Rainhoff Farming (Pty) Ltd and Wolffsgrund Farm CC. If that was indeed the case, who was the seller in this transaction and who received the money paid in respect of the farms. At which point did Comsar assume ownership of the farms? One possibility is that Comsar must have taken full and complete shareholding and interest in Rainhoff Farming (Pty) Ltd and Wolffsgrund Farm CC respectively. If that happened, the move would be subject to the deeming provision of Section 58 (2) and would then require the minister’s written approval in terms of Section 58 (1) (a). Was the requisite approval granted to Comsar? That’s only if Comsar secured controlling interest in Rainhoff Farming (Pty) Ltd and Wolffsgrund Farm CC. If that was indeed what happened, why would Comsar donate the farms in its own name and not that of its supposed subsidiaries? 
The minister is on record purporting to have granted the approval required in terms of Section 58 (1) (b) (i). Such approval is needed when a foreign national seeks to enter into “an agreement with any other person whereby any right to the occupation or possession of agricultural land or a portion of such land is conferred upon the foreign national for a period exceeding 10 years…”. Is it possible that the “any other person” contemplated here includes a state functionary like the minister? Put differently, did the Legislature empower the minister to approve an extended leasehold for which he/she is the lessor on behalf of the state? How would such power be exercised objectively? The only plausible conclusion to be drawn is that “any other person” in terms of Section 58 (1) (b) (i) most possibly excludes the state and its functionaries, especially the minister responsible for land reform. Maybe implied there further, is the prohibition of leasing state land acquired and held in terms of the Act to foreign nationals. A court determination in this regard would be very instructive.

It is an established principle in law, that one can only donate what belongs to him/her/it and that ownership in a property only passes at registration. When were the properties (farms) registered in Comsar’s name? Granted, the donation could have been made conditional to the ownership transfer of the farms to Comsar. However, a valid and lawful transfer and registration of the farms into Comsar’s name would require the certificate of waiver by the minister in terms of Section 17 (6) (a) and the minister’s approval as contemplated in Section 58 (1) (a). It appears nowhere in the minister’s statement that the farms were initially offered to the state as Section 17 requires and what the asking price of the farm sellers was, whether individually and combined. The state possibly never had the genuine opportunity of evaluating the offers and objectively consider taking them up or otherwise.  

Assuming that both the sale and donation were good in law (which is not apparent from the available facts), the last consideration would relate to the lease of the farms from the state to Comsar. At the point that the farms would have become state land, they would be subject to the relevant legislation. No agreement is ordinarily capable of suspending the operation of statute; and it is in no way inferred that the stated Deed of Sale, Donation and Lease sought to do that. It is however surprising that the minister’s statement makes no reference to Section 37 of the Act, in particular Section 37 (1) which provides that “the minister, after consultation with the Commission (Land Reform Advisory Commission), may, by way of lease or in such other manner as may be prescribed, and under a scheme or otherwise allot to any person or group of persons...”. It is submitted that this provision, read with Section 42 are amongst other provision, the primary legal basis for the purported lease. While there is certainly no dispute or enquiry on whether the minister is indeed empowered to sanction the lease of State land (grant leasehold rights), the questions linger around the process followed in this instance.  

Section 37 is subject to Section 39 which prescribes the preparation and publication of allotment plans. The allotment plans would highlight details such as the area of the land in question, available infrastructure, the Commission’s recommendations on what the land should be used for and the requirements to qualify for allotment. These details are expected to be published in the government Gazette and at least one newspaper circulating in the area where the land is situated. Coupled with details stated above, the published notice must also invite applications for the allotment of the land concerned. The publication of the allotment plans is mandatory, as the failure to comply with same has the fatal effect of rendering the purported allotment of leasehold right/s a nullity. The provisions of the Act or any other law suspending the operation and application of Section 39 of the Act are not apparent, it is therefore puzzling to how the minister could approve the lease without complying with Section 39 or at the very least indicate how he complied with it.

The minister’s decision to lease State land is one contemplated in Article 18 of the Namibian Constitution; requiring administrative officials to comply with the relevant legislation, failure of which an aggrieved person may seek redress from a competent Court or Tribunal. It is therefore submitted that the “Russian lease” must be subjected to judicial review to confirm the applicable process in terms of the relevant law. Relying on President Dr Hage Geingob’s dictum and with a bit of modification, Namibia’s relatively young democracy is contingent on clearly defined and ascertainable processes, reliable systems and competent institutions. 

* Career journalist and legal practitioner. The views expressed are his own

New Era Reporter
2018-11-02 10:21:21 | 1 years ago

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