OF NAMIBIA REPORTABLE
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
No. A 195/2007
the matter between:
OF LANDS & RESETTLEMENT
citation: Enghali v Erastus Nghishoono, (A 195/2007) 2013 NAHCMD 66
[1 March 2013]
19 May 2009
1 March 2013
On 19 May 2009, I gave an order in the following terms:
‘That the application by the applicants as per Prayer 2 of the
Notice of Motion is hereby dismissed with costs.
That the counter applications by First, Second and Third Respondents
is hereby granted with costs.
That the applicants and all their livestock are ordered to vacate
Unit B of farm Schellenberg No. 79 within three (3) months from the
end of May 2009.’
indicated that my reasons will be provided at a later stage. Herein
below are my reasons.
By notice of motion applicants sought an order in the following
A rule nisi is issued calling upon FIRST RESPONDENT to show cause on
Friday, 31 August 2007 why; pending the resolution of the dispute in
respect of applicant’s right to occupy Unit B of farm
Schellenberg No. 79, Omaheke Region, alternatively, allocation of
land to them in terms of the Agricultural (Commercial) Land Reform
Act, 1995 (Act 6 of 1995), the following order should not be made:
Ordering first respondent, and anyone acting on his instructions, to
immediately restore the water supply on Unit B of the farm
Schellenberg No. 79 to applicant’s livestock.
Interdicting first respondent, and anyone acting on his instructions,
from in any way interfering with applicants’ occupation of Unit
B of the Schellenberg No. 79;
Ordering first respondent to pay the costs of this application on a
scale as between attorney and client.’
applicant is Ben Aluendo Enghali an adult male residing at 1396
Kae Street, Epako, district Gobabis.
applicant is Josef Shefeni Enghali, an adult person, residing at
1396 Kave Stree, Epako district of Gobabis.
respondent is Erastus Nghishoono employed with Ministry of Land
and Resettlement, Brendan Simbwaye Square, Goethe Street, Windhoek.
He works with resettlement and the allocation of land.
respondent is the Minister of Lands and Resettlement, c/o
Government Attorneys, 2nd floor, Sanlam Building,
Independence Avenue, Windhoek. This respondent is responsible for the
administration of the AGRICULTURAL (COMMERCIAL) LAND REFORM ACT, 1995
(ACT 6 OF 1995) (the Act), resettlement and the allotment of land in
terms of the Act. He was cited because of the interest he may have in
respondent is the Government of Namibia c/o the Government
Attorneys, 2nd floor, Sanlam Building, Independence
Avenue, Windhoek. This respondent is the owner of the land in
question and is cited for the interest it may have in this matter. No
relief in is sought against second and third respondents.
respondent is the owner of unit B of farm Schellenberg no. 79 On 27
May 2002 the first respondent in terms of a lease agreement with
second respondent was resettled on unit B of farm Schellenberg no. 79
(in terms of the Agriculture (commercial) land reform Act 1995 (Act 6
21 of the lease agreement owner pounds: ‘The lessee shall not
keep more than 77 cattle or 498 sheep and goats within his property
and shall not allow any such animals not owned by him/her on the
22 provides: ‘the lessee shall not sub lease, cede, assign,
mortgage or hypothecate the property or part thereof or deal with it
in any manner without prior written consent of the lessor.’
The first respondent without the consent of the second respondent
entered into a private arrangement with the applicants in terms of
which the applicants and their livestock were allowed to occupy the
camps on farm Schellenberg, Unit B.
the farm there were two water points, the first one used by the first
respondent and the second one by the applicants. Each watering point
has separate pipelines and each party pumped its water to its own
reservoirs in its own camp.
part of the private arrangement the applicants would make use of the
watering point of the first respondent but that the applicants should
pump the water from the watering point of the first respondent to the
camps of the applicant i.e to their reservoirs’
applicants did not pump the water to their camps but brought their
animals to the reservoir of the first respondent causing the animals
to mix. The first respondent refused the water supply from its
reservoirs when demanded. Dissatisfied with that, the applicants
brought the application by notice of motion which I dismissed.
It is clear from clause 22 of the lease agreement between first
respondent and second respondent, that 1st respondent (as
the lessee) had no right to sublease, cede, assign mortgage or
hypothecate the farm or part thereof without the prior written
consent of the second respondent (Lessor). It is common cause that
the second respondent did not give any consent to first respondent to
sublease the farm to the applicants. Furthermore, the animals kept on
the farm were more than allowed by clause 21 of the lease agreement.
The arrangement between first respondent and the applicants was also
contrary to section 64 (1) of the Agriculture land Reform Act 1995
(Act 6 of 1995) which provides that: ‘except with the prior
written consent of the minister, granted upon a recommendation of the
commission, a lessee shall not
assign, sublet, mortgage or in any manner whatsoever encumber, or
part with possession of the farming unit in question or any part
enter into any partnership for the working of such farming unit.
An application for the minister’s consent for the purpose of
subsection (1) shall be made in writing’
is clear that the occupation of the farm by the applicants was
contrary to the lease agreement and the Agricultural Reform Act 1995
and therefore illegal. On that basis I dismissed the application. The
arrangement between first respondent and applicants was a legal
Counter application by second and third respondents
notice of motion, second and third respondents applied for the
the first and second applicants be ejected from unit B of farm
Schellenberg no 79’.
dismissed the application by the applicants on the basis that the
applicants were occupying farm Schellenberg unit B illegally. They
(applicants) had no right to occupy or any title to farm Schellenberg
unit B and for that reason the second and third respondents were
entitled to the eviction order prayed for. For those reasons I
granted the counter application.
THE APPLICANTS SISA NAMANDJE
SISA NAMANDJE INC.
THE 2ND AND 3RD RESPONDENTS GOVERNMENT ATTORNEY
BY THE ATTORNEY GENERAL OFFICE