Popular Democratic Movement (PDM) v Minister of Land Reform and Others (HC-MD-CIV-MOT-REV-2018/00457) [2025] NAHCMD 279 (30 May 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

Case No.: HC-MD-CIV-MOT-REV-2018/00457

In the matter between:

POPULAR DEMOCRATIC MOVEMENT (PDM) APPLICANT

and

MINISTER OF LAND REFORM FIRST RESPONDENT

COMSAR PROPERTIES SA SECOND RESPONDENT

THE MINISTER OF FINANCE THIRD RESPONDENT

PRIME MINISTER OF NAMIBIA FOURTH RESPONDENT

THE PRESIDENT OF THE REPUBLIC OF NAMIBIA FIFTH RESPONDENT

ATTORNEY GENERAL OF NAMIBIA SIXTH RESPONDENT

REGISTRAR OF DEEDS SEVENTH RESPONDENT

CHAIR OF CENTRAL PROCUREMENT EIGHTH RESPONDENT

GOVERNMENT OF THE REPUBLIC OF NAMIBIA NINTH RESPONDENT

RAINHOF FARMING COMPANY (PTY) LTD TENTH RESPONDENT

WOLFFSGRUND FARMING CC ELEVENTH RESPONDENT

Neutral citation: Popular Democratic Movement (PDM) v Minister of Land Reform (HC-MD-CIV-MOT-REV-2018/00457) [2025] NAHCMD 279 (30 May 2025)

Coram: SIBEYA J

Heard: 16 April and 4 December 2024

Delivered: 30 May 2025

Flynote: Application for review – Foreign national prohibited from acquiring land under s 58 of the Agricultural (Commercial) Land Reform Act 6 of 1995 (the Act) – Whether or not a foreign national is allowed to lease agricultural land in Namibia – Allegations of attempts by government officials to circumvent s 58 of the Act by leasing agricultural commercial land to a foreign national for 99 years and whether such lease is tantamount to granting ownership – Award of costs where the application is launched in the public interest.

Summary: In this application, the applicant seeks to review and set aside certain decisions relating to the lease of farms, on the basis that the lease agreement concluded, where the second respondent leased the farms was, unlawful.

The applicant contended that the Minister and the Government invented a plan to circumvent the provisions of s 58 of the Agricultural (Commercial) Land Reform Act 6 of 1995 (the Act), in order to permit a foreign national to own or acquire agricultural land, against the provisions of the section. The applicant stated further that the Minister conspired to allow for the transfer of the farms directly to the Government, without the Government having paid the purchase price and to ensure that the second respondent, a foreign national, obtains the right to lease the farms.

The respondents opposed the application.

Held: that a foreign national is prohibited under s 58 of the Act to acquire agricultural land in Namibia, except with the waiver of the Minister of Land Reform.

Held that: owning and leasing agricultural land are two different processes and while owning agricultural land by a foreign national is prohibited, there is nothing untoward with the Minister in this matter, to lease the farms to the second respondent.

Held further that: the applicant failed to join the sellers of the farms, who are parties with direct and substantial interest in the matter.

Held: that the applicant instituted this application in the public interest, with no direct benefit, therefore, the court, in the exercise of its discretion, decided not to award adverse costs against the applicant.

The application is dismissed.

ORDER

1. The applicant’s application is dismissed.

2. There is no order as to costs.

3. The matter is finalised and removed from the roll.

JUDGMENT

SIBEYA J:

Introduction

[1] This is a review application where the applicant seeks to review and set aside certain decisions relating to the 99 year lease of some farms and the eviction of the second respondent (‘Comsar’), from agricultural land.

[2] The applicant contends that the decision of the first respondent, the Minister of Land Reform (‘Minister’) to consent to a long lease, in terms of s 58(1)(b)(i) of the Agricultural (Commercial) Land Reform Act 6 of 1995 (‘the Act’), and the Government’s decision to lease the farms to Comsar for 99 years are unlawful. The applicant stated further that the Government engaged in an unlawful scheme through which it became the owner of the farms by donation and then leased them to Comsar for 99 years. The review application is opposed.

[3] The review application was launched on 14 December 2018, and was served on the respondents in January 2019. On 17 May 2019, the applicant addressed a letter to the Registrar of this court for a managing judge to be assigned to the matter. On 16 August 2019, the applicant requested the Registrar for a case planning conference. On 10 September 2019, the applicant requested for directions in terms of rule 76(6). On 11 September 2019, the then managing judge, Geier J, issued a notice of a status hearing in terms of rule 27(1). There were condonation applications which were heard for non-compliance with court orders. The applicant’s condonation application was struck from the roll on 20 August 2020.

[4] The managing judge issued a rule 132 notice to inquire into the inactivity of the matter. After going back and forth in respect of the rule 132 proceedings, the court (as constituted then), on 19 August 2021, declined to strike the matter from the roll in terms of rule 132(10), and made an adverse costs order against the applicant. Several postponements ensued, after which the matter was postponed to 9 March 2022, for a case management conference hearing. It is only then that the matter took the trajectory of proceeding to a hearing on the merits.

The parties and representation

[5] The applicant is the Popular Democratic Movement (PDM), a political party, duly registered in terms of the electoral laws of the Republic of Namibia (the Republic), with its official address situated at 123 John Meinert Street, Windhoek-West, Windhoek. The applicant shall be referred to as such.

[6] The first respondent is the Minister of Land Reform, duly appointed as such in terms of the laws of the Republic. The Minister is also responsible for the administration of the Agricultural (Commercial) Land Reform Act 6 of 1995 (the Act). The first respondent shall be referred to as ‘the Minister’.

[7] The second respondent is Comsar Properties SA, a company incorporated under the laws of Switzerland, a foreign national, as defined in s 1 of the Act, whose chosen domicilium citandi et executandi is c/o Sisa Namandje & Company, situated in Windhoek. The second respondent shall be referred to as ‘Comsar’.

[8] The third respondent is the Minister of Finance, duly appointed as such in terms of the laws of the Republic and is cited herein in his capacity as the Minister responsible for Treasury in terms of s 19(1) of the State Finance Act 13 of 1991 (State Finance Act).

[9] The fourth respondent is the Prime Minister of the Republic of Namibia, duly appointed as such in terms of the laws of the Republic and cited herein for the interest that she may have in the matter.

[10] The fifth respondent is the President of the Republic of Namibia, duly elected in terms of the laws of the Republic and cited herein in his capacity as the chairperson of Cabinet and for any interest that he may have in the matter.

[11] The sixth respondent is the Attorney-General of Namibia (AG), duly appointed in terms of the laws of the Republic, and cited herein for the interest that he may have in the matter.

[12] The seventh respondent is the Registrar of Deeds (Registrar), duly appointed in terms of the s 2 of the Deeds Registries Act 47 of 1937.

[13] The eighth respondent is the Chairperson of the Central Procurement Board of Namibia (CPBN), a statutory body established in terms of s 8 of the Public Procurement Act 15 of 2015 (the PPA).

[14] The ninth respondent is the Government of the Republic of Namibia (the Government), the registered owner of and lessor of the farms in question in this matter.

[15] The address of service of the third to the ninth respondents is c/o the Office of the Government Attorney situated at Sanlam Building, Independence Avenue, Windhoek.

[16] The tenth and eleventh respondents are cited as Rainhof Farming Company (Pty) Ltd and Wolffsgrund Farming CC, respectively. They shall be referred to as ‘the sellers’. The sellers, who were initially not joined to this application by the applicant, were deregistered before they were joined to these proceedings. This resulted in the variation of the order to exclude the sellers from the matter, as by the time that they were purportedly joined, the court was unaware that they were already deregistered.

[17] No relief is sought against the Minister of Finance, the Prime Minister, the President, the AG, the Registrar, the Chairperson of the CPBN, and tenth and eleventh respondents, who are cited for any interest that they may have in the relief sought.

[18] The applicant is represented by Mr Marais, while the Minister and the Government are represented by Mr Narib,. Comsar is represented by Mr Trengove.

Relief sought

[19] The applicant seeks, inter alia, the following relief:

‘5.1 Reviewing and setting aside first respondent’s written permission in terms of section 58(1)(b)(i) of the Agricultural (Commercial) Land Reform Act 6 of 1995 (the Act) to second respondent to enter into a 99 year lease with the Government of Namibia in the respect of the farms referred to in the founding affidavit (the farms).

5.2 Reviewing and setting aside the decision by first respondent, or the Government of Namibia, or both, to lease the farms to second respondent for 99 years and setting aside the lease agreement annexed marked HV7 (the lease agreement) to the founding affidavit herein.

5.3 In the alternative to paragraphs 5.1 & 5.2 above:

5.3.1 Declaring that the scheme devised by first and second respondents through which the Government of Namibia became the registered- owner of the farms by donation in order to lease it to second respondent for 99 year(s) is unlawful; and

5.3.2 Consequently, setting aside the lease agreement entered into by second respondent with the Government of Namibia in respect of the farms.

6 Evicting second respondent and everyone under its employ or authority from the farms.

7 First respondent be directed to allot the farms in terms of section 60 and in accordance with the provision of Part IV for the purposes of section 14(1).

8 Further and/or alternative relief.

9 Costs of suit.’

Background

[20] The background of this matter was set out in an interlocutory ruling of this court delivered on 8 September 2023. I, however, deem it fit to set the tone of this judgment by revisiting the said background, and I do so below.

[21] Comsar concluded a Deed of Sale, Donation and Lease Agreement with the Government of the Republic of Namibia, represented by the Minister and the tenth and the eleventh respondents, as owners and sellers of the four farms, on 14 September 2018.

[22] It is common cause among the parties that Comsar, is a foreign national, as defined in s 1 of the Act. Comsar acquired the entire membership interest in three farms: Farm Coas 501 (11,591,5576 hectares); Farm Otjimukona 352 (11,515,0861 hectares); and Portion A of Farm Hillside 115 (5765,0770 hectares) prior to the transactions relevant to this matter. The three farms were subsequently consolidated into a single game farm referred to as Marula Game Ranch.

[23] During 2017, the tenth and eleventh respondents were the owners of agricultural land, consisting of: Farm Rainhoff 123 measuring 5027,8594 hectares; Farm Kameelboom 119 measuring 5917,3812 hectares; Portion C of Farm Smaldeel 124 measuring 457,7248 hectares; and Farm Wolffsgrund measuring 5982,1345 hectares (the farms).

[24] During 2017, the tenth and eleventh respondents approached the Minister with an offer to purchase the farms at a rate of N$12 000 per hectare, which the Minister declined.

[25] On 28 November 2017, the tenth and eleventh respondents applied for a waiver in terms of s 16 of the Act, for Comsar to purchase and acquire ownership of the farms. The applications for waiver were submitted together with Comsar’s proposal to donate N$24 million to the Government, to be expended as follows:

1. N$12 million to be paid to the Minister in order to purchase two farms for resettlement purposes;

2. N$1 million to be utilised by the Government to train the resettled peersons in order to become productive farmers;

3. N$10 million to be a contribution to the Namibian Premier Soccer League;

4. N$1 million to be utilised for the refurbishment or renovation of two primary schools, one in Kunene and the other in Kavango West Regions.

[26] On 17 April 2018, the Minister informed Comsar that its application was refused and advised Comsar to rather lease the farms from the tenth and eleventh respondents.

[27] On 27 April 2018, Comsar offered to purchase the farms and donate them to the Government, subject to a 99 year lease, at a rate equivalent to the land taxes payable annually, which apply to the said farms. This offer was accepted by Cabinet as it was found to be beneficial to Namibia. On 12 September 2018, the Minister set out the Government’s approval of the proposed sale, donation and lease agreement.

[28] When queried whether or not he applied the provisions of the Public Procurement Act (PPA) during the consideration of the said proposed sale, donation and lease agreement, the Minister minced no words and stated that he did not apply the provisions of the PPA. In his own words, the PPA found no application to the matter and was thus not applied in approving and concluding the transactions.

[29] On 17 September 2018, the Deeds of sale, donation and the lease agreements (the transactions), were concluded between the concerned parties and these resulted in the notarial lease agreement.

[30] Comsar paid an amount of N$43 million and N$118 million directly to the tenth and eleventh respondents in terms of the Deeds of payments which required the payments to be made on transfer of title to the Government.

[31] On 18 September 2018, the purchase price and compensation were paid; the transfer of the title was effected in favour of the Government; the notarial lease agreement was registered and Comsar took occupation of the farms on the strength of the lease agreement.

[32] At the time of the transactions, there was a moratorium on the issuing of investment certificates, as contemplated in the Foreign Investments Act 27 of 1990, and therefore, no investment certificates were issued during the moratorium.

[33] It is undisputed that after occupying the farms, Comsar made substantial improvements, investments and development on the farms, inclusive of construction and infrastructure, purchase of game and establishment of an eco-friendly hotel and additional game lodges. Comsar also employed several employees.

Points in limine

Undue delay

[34] Comsar raised a point of law in limine of undue delay. Comsar contends that the latest, by 23 October 2018, the applicant should have been in possession of sufficient information to institute this review application. This is because the applicant was well aware that the tripartite agreement was concluded. The tripartite agreement constitutes the Deed of Sale, Donation and Lease in respect of the farms. Comsar contends that the application was not instituted and prosecuted within a reasonable time. Comsar states that the application was unduly delayed and without a case made out for condonation.

[35] The application was filed on 14 November 2018 and served on the respondents in January 2019.

[36] The Supreme Court in Keya v Chief of the Defence Force and Others¹ considered the delay to institute proceedings and O’Regan AJA, writing for the court, remarked as follows:

‘[21] This court has held that the question of whether a litigant has delayed unreasonably in instituting proceedings involves two enquiries: the first is whether the time that it took the litigant to institute proceedings was unreasonable. If the court concludes that the delay was unreasonable, then the question arises whether the court should, in an exercise of its discretion, grant condonation for the unreasonable delay.² In considering whether there has been unreasonable delay, the high court has held that each case must be judged on its own facts and circumstances³ so what may be reasonable in one case may not be so in another. Moreover, that enquiry as to whether a delay is unreasonable or not does not involve the exercise of the court's discretion.’⁴

[37] I hold the view that the issue of undue delay raised, should not occupy this court longer than necessary. This is because Mr McHenry Venaani, who deposed to the founding affidavit for the applicant, stated that the applicant learnt of the alleged scheme engaged to acquire the farms in October 2018, and the Minister explained the situation regarding the farms on 19 October 2018. A copy of such statement confirming that it was issued by the Minister in October 2018, is annexed to the founding affidavit as ‘HV4’. I appreciate that the applicant needed to obtain facts that led to the impugned decision and not to rush to court haphazardly. I, therefore, find that there was no unreasonable delay in instituting the review application. Furthermore, the period between the time that the applicant became aware of sufficient facts and the institution of the application was reasonably explained. Similarly, the applicant cannot be solely blamed for not prosecuting this application promptly. I, therefore, find no merit in the point of law in limine of unreasonable delay and it is accordingly, dismissed.

Non-joinder

[38] Mr Johannes Kotze, the general manager of Marula Game Ranch, who deposed to the answering affidavit on behalf of Comsar, stated that, the applicant failed to join the sellers of the farms, who are parties to the tripartite agreement and as such, they have a direct and substantial interest in the matter. The sellers are the tenth and the eleventh respondents. On this basis, Comsar contended that the application must fail. The applicant disagreed and argued that the sellers have no interest in this application.

[39] I hold the view that the issue of non-joinder is intertwined with the merits of this application, therefore, I find it prudent to consider the question of non-joinder of the sellers together with the merits.

Facts in dispute

[40] The parties listed the following as facts in dispute for determination:

1. Whether the farms were acquired from the proceeds of the acquisition of Land and Development Fund (the Fund) or paid by Comsar on behalf of the Government.

2. Whether the farms were acquired for purposes of land reform or for purposes of investment as contemplated in the legislation.

3. Whether, in consenting to the lease agreement or the transactions, the Minister was authorised to do so in terms of s 58(1)(b)(i) of the Act.

4. Whether the nature and extent of beneficial effects or benefits to the Namibian people (if any) arising from the transactions, in any manner, justified the transactions.

5. Whether the transaction or any of its components was unlawfully agreed upon, implemented deliberately to circumvent the law, without proper authority, in conflict with the legislation, with an unlawful purpose and/or unreasonably and without rational connection to the purpose of the Act or the public purpose.

6. Whether the Minister conspired with all concerned to allow the transfer of the farms from the previous owners directly to the Government of Namibia, without the Government actually having paid the purchase price for the farms and so as to enable Comsar to acquire the rights of an owner (via a 99-year lease).

7. Whether, in effect, the Minister acquired the farms on behalf of Comsar, in contravention with s 59 of the Act.

8. Whether the transaction was bona fide approved by Treasury.

9. Whether, in any event, the lease (including the lease period and rent payable) is disturbingly inappropriate or not justified by any compelling reasons and/or did not arise from a discretion reasonably or fairly exercised by the Minister.

10. Whether the transactions were concluded as a result of undue influence, corruption or in circumstances which compromised public interest, public policy and sound governance.

11. Whether, having regard to all circumstances surrounding the transactions, the powers relied upon by the relevant Minister were, in any event, used to achieve an unlawful or unauthorised purpose.

12. Whether the tripartite agreement was motivated by good faith on the part of the parties, so as to ensure compliance (as opposed to avoidance) of the Act.

13. Whether the donation made to the Government in the amount of N$24 million to fund the development of football and buy farms for settlement purposes, was lawful and whether the fourth respondent (the Prime Minister) duly gave approval therefor in terms of the State Finance Act.

14. Whether the purchase price for the farms in fact amounted to N$43 462 749,75, paid by Comsar.

15. Whether the applicant knew about the transaction sought to be impugned by reason of the advertisement in ‘JCK8’.

16. The date and circumstances under which the applicant must first have become aware of the transactions sought to be impugned.

17. Whether the relief sought or the setting aside of the transactions would be seriously prejudicial to Comsar and other stakeholders, in the respects specified in paragraph 149 of Comsar's answering affidavit and whether, in any event, the setting aside of the lease or any other components to the tripartite agreement, would result in no public benefit, in circumstances which would justify the court exercising a discretion not to set them aside, on the basis that it would give rise to an unjust and inequitable result.

18. Whether the applicant unduly delayed pursuing the prosecution of this application with the necessary expedition, in circumstances which preclude the court from setting aside the agreements and/or justify a declaratory order to the effect that such order would not affect the rights of third parties not joined to these proceedings.

19. Whether the conduct of the tenth and eleventh respondents (as reflected herein) constituted a negligent misrepresentation regarding the true state of their affairs, which resulted in the applicant acting to its prejudice by not earlier seeking re-registration or joinder of these entities.

20. Whether Comsar commenced or continued with the development and associated costs, infrastructure and investments fully aware of the nature of this application and the risks and consequences of the relief being granted, with the result that Comsar cannot seek to rely upon those events to invite the Court to refuse the relief sought.

Applicant’s case

[41] The applicant claims that the notarial lease agreement ought to be set aside on the basis that it contravened relevant legislation; constituted a simulation; an attempt to avoid the applicable legislation; was unlawful and was concluded to achieve an unlawful purpose.

[42] The applicant claims that the scheme of the Act requires that the Minister should acquire agricultural land with the purpose of making such agricultural land available to Namibian citizens especially the citizens who were previously disadvantaged by past discriminatory laws. Mr Marais argued that, after all, the purpose of the Act is for the State to acquire agricultural land for distribution to Namibian citizens.

[43] The applicant contends that the Minister permitted Comsar to lease the farms for a period of 99 years, which is as good as constituting ownership of the farms. This, Mr Marais submitted, runs contrary to the purpose and provisions of the Act. He placed reliance on the decision of the full bench of the Kwazulu Natal High Court of South Africa in Council for the Advancement of the South African Constitution & Others v Ingonyama Trust & Others,⁵ where Madondo DJP, remarked as follows at para 115:

‘[115] The lease agreements before this court have a different hue altogether. A 99‑year lease approximates ownership. A 40-year lease, even one on less onerous terms on the tenant than the one employed by the Trust and the Board, may qualify for registration as a long lease, but in no way approximates ownership.’

[44] Mr Marais argued that a period of 99 years, exceeds human existence and for that reason too, a 99 year lease constitutes ownership. A lease of about 30 years would not necessarily be equated to ownership, but 99 years, is, he argued. On that basis, he submitted that the application should succeed. As such the lease agreement should be set aside and the Minister should be ordered to allot the farms to disadvantaged Namibians, in terms of the Act.

[45] The applicant’s main contention is that the Minister and the Government, in order to overcome the decision of Cabinet not to permit foreigners to acquire agricultural land, invented a plan to circumvent the provisions of the Act. The applicant contends further that the Minister conspired to allow for the transfer of the farms directly to the Government, without the Government having paid the purchase price, and to ensure that Comsar obtains the right to lease the farms. Thus, contends the applicant, the Minister acted contrary to his public duty to act in the best interest of the public to make available agricultural land to Namibian citizens, as provided for by the Act.

[46] Mr Marais argued that Comsar achieved indirectly what it could not achieve directly, as the Act prohibited the acquisition of agricultural land by a foreign national, making the lease agreement unlawful. He argued that leasing the farms for 99 years was as good as owning such farms.

[47] In the respect of Comsar’s contention that the application should fail on account of non-joinder of the sellers, the applicant stated that the sellers have shown no direct and substantial interest in the application. Mr Marais argued that the sellers were aware of this application from the time when it was lodged but showed no interest in it. He argued further that it is actually Comsar that is imposing the purported interest of the sellers on this application.

[48] Mr Marais argued that on 30 September 2020, the representatives of the sellers, deposed to affidavits supporting Comsar’s case. The said affidavits were filed in full knowledge of the application. He submitted that the sellers opted not to get involved in pursuance of their interest, if any. He submitted further that the sellers, who had since become deregistered, had ample opportunities to re-register and be joined to this matter, but they chose not to, thus demonstrating their lack of interest in the matter.

[49] In any event, he submitted further, that the relief sought by the applicant in this application is of no consequence to the sellers.

[50] Mr Marais said the following, in his written heads of arguments:

‘Although (on the Applicant’s version) all represented one big scheme, it is, therefore, significant that the actual relief sought is related only to the subsequent lease of the farms, in circumstances which, in fact, would be of no concern to the erstwhile owners. After all, what the Applicant seeks is, once the lease has been set aside, for the First respondent to allot the farms in terms of section 60 of the Act. Whether or not the relief is granted is of no concern to the 10^th and 11^th Respondents. If it is granted, these Respondents could remain under deregistration and their members could happily continue with their (wealthy) retirement. It is only if any of the Respondents were to take any steps against the sellers following the relief granted in favour of the Applicant, that those sellers would enjoy an interest and re-registration may be necessary. Until then, nothing changes for the sellers. In other words, as matters stand, the sellers have no direct interest in the outcome of these proceedings.

…

29.3 The relief in any event does not affect the interests of these erstwhile parties since:

29.3.1 two transactions occurred, one for the acquisition of the farms and, second, for them to be leased to Comsar;

29.3.2 upon a proper construction of the relief sought, the application is concerned only with the second, namely the lease agreement and, therefore, the interests of Comsar;

29.3.3 the Applicant does not seek to set aside the sale of the farms or for the status quo to be restored, but, rather, for the agreements to be set aside for the Minister, thereafter, to deal with the farms in terms of the Act;’

[51] On the above premises, Mr Marais found support for the applicant’s contention that the current matter is of no interest to the sellers as the relief sought is of no effect to them. In his own words, the applicant does not seek to set aside the sale of the farms and, therefore, the sellers could happily continue with their wealthy retirement.

The first to the ninth respondents

[52] The first to the ninth respondents stated that the concerned lease agreement was authorised, justified, lawful, and further that it complied with the statutory requirements for its enforceability. The respondents contend further that even if the agreement is found to be wanting, the court should not exercise its discretion in favour of the applicant due to impossibility, prejudice and further due to the applicant’s failure to join the tenth and eleventh respondents.

The tenth and eleventh respondents

[53] The tenth and eleventh respondents raised no objection to the joinder sought. The joinder order, which remains in force, was granted on 17 October 2022. It was, however, explained by the previous members of the tenth and eleventh respondents that their legal representatives were unaware of the fact that the concerned respondents were deregistered at the time of the joinder application and they tendered apologies for inconveniences caused thereby.

[54] It is not explained why the members of the tenth respondent withheld the deregistration of the tenth respondent from the court when they deposed to the affidavits on 30 September 2020, as by then, the tenth respondent had long been deregistered, on 16 March 2020. This created an impression that the tenth and eleventh respondents, were still legal persons, duly registered and thus capable of suing and being sued. Suffice to state that the tenth and eleventh respondents are non-entities.

[55] The applicant contended that the interest of the tenth and eleventh respondents would not be affected by the relief sought in this review application as no order is sought against them. To put this contention into perspective, it is crucial to lay bare that the case pleaded by the applicant does not seek to invalidate the sale or the acquisition of the farms by the Government but seeks to invalidate the lease of the farms to Comsar.

[56] During the hearing of the application for referral to oral evidence, it was contended by the applicant that if it is found that it is necessary for the tenth and the eleventh respondents to be properly joined to the proceedings, then the applicant should be granted leave of 30 days of the order to apply for the re-registration of the tenth and eleventh respondents. In a ruling of this court, it was found that the tenth and eleventh respondents are non-entities and left it to the applicant to decide on its next step. The applicant did not apply for the re-registration of the tenth and the eleventh respondents, therefore, the said respondents remain foreign entities and are not joined to these proceedings.

The Law

[57] The relevant provisions to the facts of this matter are ss 14, 37, 58 and 59 of the Act. It is further the decision of the Minister to enter into a 99 year lease agreement with the Government of Namibia in respect of the farms, purportedly made in terms of s 58(1)(b)(i) of the Act, that is impugned in the present proceedings.

[58] Section 14 of the Act titled ‘Power of Minister to acquire agricultural land for purposes of land reform’, reads as follows:

14. (1) The Minister may, out of moneys available in the Fund, acquire in the public interest, in accordance with the provisions of this Act, agricultural land in order to make such land available for agricultural purposes to Namibian citizens who do not own or otherwise have the use of agricultural land or adequate agricultural land, and foremost to those Namibian citizens who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices.

(2) The Minister may under subsection (1) acquire –

(a) any agricultural land offered for sale to the Minister in terms of section 17(4), whether or not the offer is subsequently withdrawn;

(b) any agricultural land which has been acquired by a foreign national, or by a nominee owner on behalf or in the interest of a foreign national, in contravention of section 58 or 59; or

(c) any agricultural land which the Minister considers to be appropriate for the purposes contemplated in that subsection.’

[59] In s 37, the Act provides for the ‘Power of the Minister to alienate, lease or dispose of certain State land or agricultural land’, as follows:

‘37. Subject to the provisions of this Part, the Minister, after consultation with the 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 contemplated in section 14(1), for agricultural purposes –

(a) any land, other than communal land, of which the State is the owner and which has been made available by the President to the Minister for the purpose;

(b) any agricultural land acquired by the State under the provisions of Part III or Part IV; or

(c) any land allotted under the provisions of this Part which has reverted to the State in terms of any such a provision.’

[60] Section 58 of the Act is titled ‘Restriction on acquisition of agricultural land by foreign nationals’ and reads as follows:

‘58. (1) Notwithstanding anything to the contrary in any other law contained, but subject to subsection (2) and section 62, no foreign national shall, after the date of commencement of this Part, without the prior written consent of the Minister, be competent -

(a) to acquire agricultural land through the registration of transfer of ownership in the deeds registry; or

(b) 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 -

(i) for a period exceeding 10 years; or

(ii) for an indefinite period or for a fixed period of less than 10 years, but which is renewable from time to time, and without it being a condition of such agreement that the right of occupation or possession of the land concerned shall not exceed a period of 10 years in total.

(2) If at any time after the commencement of this Part the controlling interest in any company or close corporation which is the owner of agricultural land passes to any foreign national, it shall be deemed, for the purposes of subsection (l)(a), that such company or close corporation acquired the agricultural land in question on the date on which the controlling interest so passed.

(2A) When –

(a) the Registrar of Companies becomes aware that the controlling interest in a company; or

(b) the Registrar of Close Corporations becomes aware that the controlling interest in a close corporation,

owning agricultural land has passed to a foreign national, he or she shall forthwith inform the Permanent Secretary in writing that such interest has so passed.

(3) The provisions of subsection (1) shall not apply in respect of the registration in the deeds registry, at any time during a period of 60 days following the date of commencement of this Part, or such extended period as the Minister in any particular case may allow, of any agricultural land in the name of a foreign national where such registration is effected pursuant to an agreement or any other written instrument duly made and entered into before the date of commencement of this Part.

(4) An application for the Minister's consent for the purposes of subsection (1) shall be made in the prescribed form and be submitted through the Permanent Secretary to the Minister.

(5) The Minister may grant an application in terms of subsection (4) subject to such conditions as the Minister may determine.

(6) The Minister shall not grant an application made in terms of subsection (4), unless the Minister is satisfied -

(a) that the acquisition of the land concerned or of the right to occupation or possession of such land will constitute an eligible investment as contemplated in section 5 of the Foreign Investments Act, 1990 (Act 27 of 1990) in respect of which a Certificate of Status Investment has been issued or, after consultation with the Minister of Trade and Industry, will be issued to the applicant under section 7 of that Act;

(b) that the land concerned is capable of being used or occupied beneficially for the purpose which the applicant proposes to use or occupy it;

(c) the use or occupation of the land concerned will not have an adverse effect on the environment or adequate measures will be provided by the applicant to prevent or deal with any adverse environmental consequences which may result from such use or occupation.

(7) The Minister may-

(a) in the case of an application for the acquisition of land, direct that any condition imposed under subsection (5) be included in the deed of transfer;

(b) at the request of the owner, vary or withdraw any condition so imposed.

(8) Upon submission to the Registrar of a certificate by the Minister that a condition registered against the title deed of the land concerned by virtue of a direction of the Minister under paragraph (a) of subsection (7) has been varied or withdrawn under paragraph (b) of that sub- section, the Registrar shall make such entries and endorsements as the Registrar considers necessary in or on any relevant register or document in his or her office or laid before him or her in order to record such variation or withdrawal.’ (My underlining for emphasis)

[61] Section 59 of the Act, titled ‘Acquisition and holding of agricultural land for foreign national’, provides that:

‘No person shall acquire and hold, as a nominee owner, on behalf or in the interest of any foreign national any agricultural land if the Minister’s written consent therefor has not been obtained as required by section 58.’

[62] It is now opportune to consider whether or not the applicant made out a case for the decision of the Minister to permit Comsar to enter into a 99 year lease with the Government in respect of the farms, to be reviewed and set aside. Alternatively, whether or not a case is made out that the scheme devised by the Minister and Comsar through which the Government became the owner of the farms by donation in order to lease same to Comsar for 99 years, is unlawful.

Analysis

[63] The main relief that the applicant seeks, is to set aside the lease agreement and direct the Minister to allot the farms in terms of ss 14 and 60 of the Act. Comsar, however, contends that setting aside the lease agreement will result in the failure of the entire transaction.

[64] In appreciation of the interest that the sellers might have, on 15 October 2024, the court ordered the applicant to join the sellers to these proceedings. The sellers were not joined. The matter was postponed to 4 December 2024, to hear the parties on the effect of the failure to join the sellers to the application.

[65] Comsar contended that the sellers are also party to the Deed of Payment, which relates to compensation paid to the sellers for the loss of their livestock businesses, which goes hand in hand with the tripartite agreement. Mr Johannes Kotze who deposed to the answering affidavit for Comsar, stated that without the lease agreement, there can be no donation. Without a donation, there can be no sale, and if the lease falls away, so should the sale of the farms, thus making the sellers interested parties to the application. It was contended for Comsar that it will be impossible to reverse the tripartite agreement without causing substantial injustice to the sellers.

[66] The applicant responded and submitted that the sellers have shown no interest in the application. Mr Marais argued that the sellers were aware of this application from the time when it was lodged but showed no interest in it. He argued further that it is actually Comsar that is imposing the purported interest of the sellers on this application.

[67] Mr Marais argued that on 30 September 2020, the representatives of the sellers deposed to affidavits supporting Comsar’s case. The said affidavits were filed in full knowledge of the application. He submitted that the sellers opted not to get involved in pursuance of their interest, if any. He submitted further that the sellers, who had since become deregistered, had ample opportunities to re-register and be joined to this matter, but they chose not to, thus demonstrating their lack of interest in the application.

[68] In any event, he submitted further that the relief sought by the applicant in this application, is of no consequence to the sellers.

[69] Mr Marais said the following, in his written heads of arguments:

‘Although (on the Applicant’s version) all represented one big scheme, it is, therefore, significant that the actual relief sought is related only to the subsequent lease of the farms, in circumstances which, in fact, would be of no concern to the erstwhile owners. After all, what the Applicant seeks is, once the lease has been set aside, for the First respondent to allot the farms in terms of section 60 of the Act. Whether or not the relief is granted is of no concern to the 10^th and 11^th Respondents. If it is granted, these Respondents could remain under deregistration and their members could happily continue with their (wealthy) retirement. It is only if any of the Respondents were to take any steps against the sellers following the relief granted in favour of the Applicant, that those sellers would enjoy an interest and re-registration may be necessary. Until then, nothing changes for the sellers. In other words, as matters stand, the sellers have no direct interest in the outcome of these proceedings.

…

29.3 The relief in any event does not affect the interests of these erstwhile parties since:

29.3.1 two transactions occurred, one for the acquisition of the farms and, second, for them to be leased to Comsar;

29.3.2 upon a proper construction of the relief sought, the application is concerned only with the second, namely the lease agreement and, therefore, the interests of Comsar;

29.3.3 the Applicant does not seek to set aside the sale of the farms or for the status quo to be restored, but, rather, for the agreements to be set aside for the Minister, thereafter, to deal with the farms in terms of the Act;’

[70] I must mention that by 30 September 2020, when the sellers filed affidavits referred to above, no reference was made to the deregistration of the sellers. This was despite the tenth respondent having been already deregistered by then, while the eleventh respondent was in the process of deregistration. According to the explanatory affidavit deposed by Ms Katrina Duvel, in her personal capacity as a co-seller of the farms and who had knowledge of the transactions, at the time of deposing to the explanatory affidavit, no attention was paid to the issue of deregistration. In fact, the sellers stated that they had moved on with their lives.

[71] The order of 15 October 2024, was served on the sellers and this afforded them another opportunity to reregister their entities and join the proceedings, but they did not do so. Their legal practitioner, Mr Kavendjii penned a letter dated 4 November 2024, where he stated, with leave of the former representatives of the sellers, that it was impossible to obtain instructions from or reregister the deregistered entities. Mr Kavendjii stated in the letter that had the applicant joined the applicant from the onset, the prevailing stalemate would have been avoided.

[72] Damaseb JP in Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others,⁶ discussed the joinder of a necessary party and said the following:

‘The leading case on joinder in our jurisprudence is Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A). It establishes that it is necessary to join as a party to litigation any person who has a direct and substantial interest in any order which the court might make in the litigation with which it is seized. If the order which might be made would not be capable of being sustained or carried into effect without prejudicing a party, that party was a necessary party and should be joined except where it consents to its exclusion from the litigation. Clearly, the ratio in Amalgamated Engineering Union is that a party with a legal interest in the subject matter of the litigation and whose rights might be prejudicially affected by the judgment of the court, has a direct and substantial interest in the matter and should be joined as a party.’

[73] Miller AJ in Ondonga Traditional Authority v Oukwanyama Traditional Authority⁷ said the following at para 13, regarding joinder of a necessary party:

‘[13] It is trite law that when a person has an interest of such a nature that he or she is likely to be prejudicially affected by a judgment given in the action, it is essential that such person be joined either as an applicant or as a respondent. The objection of non-joinder may be raised where the point is taken that a party who should be before court has not been joined or given notice of the proceedings. The test is whether the party that is alleged to be a necessary party for purposes of joinder has a legal interest in the subject matter of the litigation, which may be affected prejudicially by the judgment of the court in the proceedings concerned.’

[74] I hold no doubt that the sellers have a direct interest in this matter. I arrive at this conclusion based on the fact that the concerned agreement constitutes three aspects, namely, the Deed of Sale; Donation and Lease of the farms. I find it difficult to dissect between the sale, the donation and the lease as, in my considered view, the three are intertwined. To contend, as the applicant does, that the relief sought has no effect on the sale of the farms, but only in respect of the lease agreement, is tantamount to an attempt to unscramble a scrambled egg.

[75] The above position is further fortified by the following provisions contained in the tripartite agreement:

‘AND WHEREAS the Donor/Lessee (Comsar) at the time proposed certain donations to the Government that it is given consent to acquire and own the farms on free hold basis,

AND WHEREAS the Minister of Land Reform has rejected the Donor/Lessee’s application as a foreign national to acquire and own the four aforementioned farms,

AND WHEREAS the Minister, in view of the developmental and economic benefit that will arise from the investment to be made by the Donor/Lessee, has proposed that the four farms should rather be acquired by the Government at the full cost and account of the Donor/Lessee (including both the purchase price and compensation demanded by the farm owners) and the latter to then lease the four farms on a 99 year lease in accordance with this agreement,

AND WHEREAS Treasury in terms of section 19(1) of the State Finance Act, Act 31 of 1991 (as amended) has given authorization to the Minister of Land Reform to accept the donation by the Donor/Lessee,

AND WHEREAS the Donee/Lessor in line with the Cabinet Resolution Number 1^ST SP/17.02.15.001 preventing foreign nationals from buying agricultural commercial land but rather to lease such land and upon proper consideration of the matter has since decided that it will be more beneficial to the Government and the people of Namibia if the Donee/Lessor acquires the four farms from the private owners (Sellers) and paid for by the Donor/Lessee to the Sellers and to allow the Donor/Lessee to conduct business of its choice thereon and develop the farms for its own account in terms of the lease agreement with the Donor/Lessee, and the improvements (which during the currency of the agreement serve as a lien in favour of the Donor/Lessee) made on the farms would also become the property of the Government of the Republic of Namibia and future generations at the end of the period of the lease as provided for herein;

WHEREAS the parties have agreed to enter into this agreement in terms whereof the Government acquires the farms through a donation by the Donor/Lessee upon the Donor/Lessee fully paying the Sellers in accordance with the terms and conditions of this agreement and any other agreements that may be entered into between the Donor/Lessee and the farm Sellers,

AND WHEREAS the parties had to negotiate new terms as a result of the refusal of the Minister to give consent for the acquisition of the farms by the Donor/Lessee,

AND WHEREAS the Minister has power in terms of section 58(1)(b)(i) of the Act to give prior written consent to a foreign national to enter into an agreement with any person whereby a right to the occupation of agricultural land is conferred for a period exceeding 10 (ten) years.

AND WHEREAS the Minister has given the prior written consent (and/or herewith gives his written consent) for the Donor/Lessee to lease and occupy the properties for 99 years in accordance with the terms of this agreement.

…

The purchase price … shall be paid on the date of registration for the four farms in the name of the Government.

The Donee/Lessor and Treasury hereby accepts the donation…

At the end of the 99 years period the notarial lease shall be cancelled and all improvements made on the properties shall also become properties of the Donee/Lessor and the Donor/Lessee shall take occupation on the date of transfer.’

[76] The above terms of the agreement lay bare the fact that the sale of the farms, the donation and the lease thereof are intertwined. I further agree with the argument by Mr Trengove, supported by Mr Narib, that, but for the lease of the farms, there would be no purchase of the farms and but for the purchase, there would be no donation. It therefore, in my view, defeats logic to contend that there was an unlawful scheme engaged in by the Government and Comsar to acquire and lease the farms, without challenging the underlying sale of the farms.

[77] I find that it is inappropriate for the applicant to be content with the sale of the farms and only seek to review and set aside the lease when the said sale, the donation and the lease were considered and concluded under the same umbrella, so to speak. Surely, if ever there was an unlawful scheme as alleged by the applicant, the sale of the farms, the donation and the lease would have been carried out under such scheme. It is, therefore, mindboggling why the applicant opted to attack the lease, leaving out the foundation of such lease, namely, the sale agreement. As stated above, but for the sale of the farms of the farms there would be no lease.

[78] I do not agree with the applicant’s contention that sellers have no sufficient interest in the outcome of the proceedings, and will not be prejudicially affected by the judgment of the court. Having found that the manner in which the Government acquired the farms is challenged by the applicant, I hold the view that such challenge also affects the sellers. I find, as a result, that the sellers have a direct and substantial interest in this matter and the relief sought, and should, therefore, have been joined to the proceedings.

[79] Mr Trengove and Mr Narib argued in unison, and contrariwise, that there is nothing untoward with the Minister permitting Comsar to lease the farms for 99 years. He argued further that one cannot insinuate that a 99 year lease constitutes ownership because it is not. It is a lease, as the parties concluded a lease agreement. I agree that the 99 year lease in this matter, cannot be equated to ownership. This is so as, firstly, the parties to the lease agreement intended to lease the farms and not to transfer ownership to Comsar; secondly, the fact that it was agreed that Comsar would pay the purchase price of the farms, compensate the sellers, and develop the farms, while the registered owner of such farms is the Government, demonstrates an intention to lease the farms to Comsar, with the Government as the owner and the ultimate beneficiary of acquiring the farms, with retrospective and prospective improvements thereto, without spending a penny.

[80] I find that the parties were ad idem, and correctly so that, Comsar, a foreign national, is prohibited from acquiring agricultural commercial land without a waiver by the Minister as provided for in s 58 of the Act. Nothing, however demonstrates that Comsar could not lease the farms with the consent of the Minister and the Government. In my view, the Minister is authorised to consent to a lease of agricultural land. This is permitted by s 58(1)(b)(i) of the Act, quoted earlier at para 60, which provides that no foreign national shall, without prior written consent of the Minister, be competent to enter into an agreement with another person to occupy or possess agricultural land for a period exceeding 10 years. This, in casu, resulted in a lease agreement concluded between the Government and Comsar.

[81] I must further mention that the applicant was disingenuous to suggest that it takes no issue with the acquisition of the farms by the Government contrary to its prayers set out in the notice of motion. The applicant, in my view, can also not criticise the acquisition of the farms by Government and raise all kinds of unlawful processes involved in such acquisition, and therefter make a 360 degrees turnaround and want to lay a claim over the farm for the allotment of the alleged unlawfully acquired farms. The applicant cannot be cherry picking what may be convenient to its cause when it is alleging that the process that led to its desired results is tainted with unlawfulness.

[82] I must also state that although much was mentioned about the investment certificates, allegedly not complying with the Foreign Investment Act, the legality of such certificates was not challenged by the applicant. Their validity accordingly does not fall for determination in these proceedings.

Conclusion

[83] In view of the findings and conclusions reached above, I find that the applicant failed to establish that it is entitled to the relief sought. The application, therefore, falls to be dismissed.

Costs

[84] Costs ordinarily follow the result. Under usual circumstances, the respondents would have been awarded costs for succeeding to ward-off the applicant’s review application. The question that this court is seized with is, therefore, whether or not this matter presents any exceptional circumstances that warrant a departure from the above-mentioned established principle.

[85] In the present matter, the applicant states that it acts in the public interest, to ensure that public officials act according to law for the benefit of the Namibian people. The applicant contends that it seeks no personal gain in this matter but wishes that, if successful in the review application, that the lease to Comsar be cancelled and the farms be allotted to Namibians in terms of s 60 of the Act and Part IV of the Act. The respondents contend contrariwise, namely, that if the applicant fails in its review application, then it must be hit with an adverse costs order for launching this application in an attempt to score a cheap and hollow political victory.

[86] I hold the view and take judicial notice of the fact that, the sale, donation and lease of the farms in question attracted a great deal of public interest. This matter is of significant importance to the people of Namibia. The public, in my view, wanted to know how a foreign national, who is prohibited from acquiring agricultural commercial land by virtue of the Act, was allowed to lease the said farms for a period of 99 years. This public interest is not misplaced when one has regard to the fact that our country, not so long ago, emerged from colonization, where the masses fought for the liberation of our country and our land. It, therefore, does not come at a surprise that the Legislature, as the representative of the people, enacted the Act containing a provision that prohibits ownership of agricultural commercial land without a waiver by the Minster.

[87] I find that, the applicant established that it launched this application while acting in the public interest. This finding is supported by the fact that time and again, the Minister issued press releases explaining the relevant transactions to the Namibian people and furthermore that this matter has enjoyed wide media coverage. The respondents, on the other hand, failed to persuade the court with their contention that the applicant launched this application for political point scoring. The applicant does not appear to me to be a busy-body that litigates left, right and centre. To the contrary, as found above, in this matter, the applicant instituted proceedings in a matter of public interest, on behalf of and for the benefit of the people.

[88] I am of the view that just as in Biowatch Trust v Registrar, Genetic Resources,⁸ where the Constitutional Court of South Africa stated that the unsuccessful parties in constitutional litigation ought not to be ordered to pay costs to the State, the court should consider the nature of the parties, the cause that they advance, the character of the litigation and the conduct of the parties in pursuit of their cause. The above consideration, in my view, finds application to matters that are initiated or defended in the public interest, particularly in this matter where it cannot be clearly set out that there is personal political benefit for the applicant.

[89] I therefore, in the exercise of my discretion, hold the view that justice in this matter for reasons mentioned above, dictates that the applicant should not be ordered to pay costs.

Order

[90] As a result, it is ordered that:

1. The applicant’s application is dismissed.

2. There is no order as to costs.

3. The matter is finalised and removed from the roll.

______________

OS SIBEYA

Judge

APPEARANCES

APPLICANT: J Marais, SC

Assisted by Y Campbell

Instructed by Theunissen, Louw & Partners,

Windhoek

FIRST AND THIRD TO NINTH

RESPONDENTS: G Narib

Assisted by E Shifotoka

Instructed by the Government Attorney,

Windhoek

SECOND RESPONDENT: W Trengove, SC

Assisted by R Maasdorp

Instructed by Sisa Namandje & Co,

Windhoek