Court name
High Court
Case number
2077 of 2010

Marot and Others v Cotterel (2077 of 2010) [2012] NAHC 87 (23 March 2012);

Media neutral citation
[2012] NAHC 87
Miller AJ

CASE NO.: I 2077/2010



In the matter between:

RAYMOND MAROT …..........................................1ST






Heard on: 09 March 2012

Delivered on: 23 March


[1] Article 16 of the Constitution articulates the fundamental right
to own and dispose of property. Section 16 (1) provides that:

(1) All persons shall have the right in any part of Namibia to
acquire, own and dispose of immovable and movable property
individually or in association with others and to bequeath their
property to their heirs or legatees: provided that Parliament may by
legislation prohibit or regulate as it deems expedient the right, to
acquire property by persons who are not Namibian citizens.”

[2] On 03 March 1995 the
Agricultural (Commercial) Land Reform Act, Act 6 of 1995 was
published in Government Gazette No. 1040 and became law from that
date – I shall continue to refer to this piece of legislation
simply as “the Act”.

[3] Part VI of the Act
contains legislative provisions which curtail the rights of
non-Namibians to acquire or occupy agricultural land in Namibia. For
the purposes of this case it is necessary only to refer to the
provisions of Section 58 (1) and Section 58 (2) of the Act read with
the relevant definition found in Section 1 thereof. Section 58(1) and
58(2) read as follows:


(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 –

to acquire agricultural land through the registration of transfer of

the deeds registry; or

to enter into an agreement with any other person whereby any right to

or possession of agricultural land or a portion of such land is
conferred upon the foreign national –

  1. for
    a period exceeding 10 years; or

  2. 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.

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 (1)(a), that such company or close
corporation acquired the agricultural land in question on the date on
which the controlling interest so passed.

[4] Section 1 of the Act
defines “agricultural land” as “... any land or an
undivided share in land other than

  1. land situated in a local
    authority area as defined in Section 1 of the Local Authorities Act
    1992 (Act 23 of 1992);

  2. land situated in a
    settlement area as defined in Section 1 of the Regional Councils Act
    1992 (Act 22 of 1992);

(b) land of which the
State is the owner or which is held in trust by the State or any
Minister for any person;

(c) land which the
Minister by nature in the Gazette excludes from the provisions of
this Act”.

[5] At issue in these
proceedings and raised by way of a special plea is whether or not a
written agreement concluded between the plaintiffs, as purchasers,
and the defendant, as seller on 02 April 2009, falls foul of Section
58 of the Act, is for that reason an illegal contract and whether or
not it is for those reasons void ab initio.

[6] It is common cause
that the plaintiff purchasers are all foreign nationals. It is also
common cause that an immovable property described in the agreement as
“Remaining Extent of Farm Groot Sandhup No. 1224, Registration
Division “B”, Otjozondjupa Region, Measuring 3181, 9196
hectares in agricultural land as defined in Section 1 of the Act.

[7] The agreement is
structured as a sale of 50% of the member’s interest in a close
corporation styled Wildlife Conservation CC, CC/2008/0492, which owns
the land in question.

[8] In terms of Clause 2
of the agreement the defendant sold 50% of the member’s
interest in the close corporation and 100% of the defendant’s
claims against the close corporation to the plaintiffs in the
following proportions:

  1. First plaintiff –
    20% of the total of the member’s interest and 40% of the

  2. Second plaintiff –
    20% of the total of the member’s interest and 10% of the

  3. Third plaintiff –
    10% of the total of the member’s interest and 10% of the

[9] Clause 4 of the
agreement determines the price to be the sum of N$2, 400, 000.00 (Two
million four hundred thousand Namibian dollars). One million Namibian
dollars were payable on the date of signature of the agreement and
the balance was to be paid by not later than 01 June 2010. The
initial amount was paid but consequent upon a failure on the part of
the defendant to honour his obligation to transfer the member’s
interest to the plaintiffs, no further payments were made.

[10] Instead the
plaintiffs issued summons claiming payment of the one million
Namibian dollars already paid and for payment of an additional N$410,
010.25 they claim they had suffered as damages.

[11] In the special plea
the defendant raises the illegality of the agreement as I had stated
earlier. The challenge is formulated in paragraphs 4 and 5 of the
plea and reads as follows:

The purported agreement between the parties, annexure “A”
to the particulars of claim, is illegal as it is specifically
prohibited and declared of no force or effect in terms of the
provisions of the Agricultural Act as follows:

In terms of the provisions of section 17 of the Act – the
agreement in effect amounts to the sale of 50% of agricultural land
and has the effect of passing a controlling interest in a close
corporation owning agricultural land to another party. No waiver
certificate has been obtained.

The whole agreement constitutes an evasion of the provisions of
section 17 of the Act. Only after defendant signed the agreement,
defendant was so advised.

The provisions of section 58 – the plaintiffs, as foreign
nationals, are not entitled in terms of the provisions of the
agreement to take possession and occupation of agricultural land for
an indefinite period without prior written consent from the Minister
of Lands and Resettlement and Rehabilitation having been obtained.

The provisions of Clause 10.2 of Annexure “A” constitute
a contravention of the provisions of section 58 of the Act as the
Minister’s written consent was not obtained.

[12] In order to consider
this challenge it is necessary firstly to have regard to some of the
other clauses in the agreement which bear upon the issue.

[13] I refer firstly to
Clause 3 of the agreement which reads as follows:


It is expressly recorded that the sale and purchase as provided
herein is, in effect, a sale of 50% of the immovable property and
100% of the movable property voetstoots and the Purchaser
therefore accepts the property:-

in its present condition, voetstoots, without liability by the

defects, latent or patent, or any damages or loss suffered by the
Purchaser by reason of such defects;

without any warranties of any nature, either express or implied;

subject to all conditions set out or referred to in the current or

title deeds relating to the immovable property and all other
conditions which may exist in regard to the immovable property.

The Purchaser acknowledges, that, to the extent that it has been
deemed necessary, he has:-

inspected the immovable property and the movable property;

is fully acquainted with the nature, extent, condition and location
of the immovable property and with the position of the beacons in
respect thereof, which beacons the Seller shall not be obliged to
point out;

examined the title deed(s) in respect of the immovable property and
any conditions applicable thereto.

The Seller shall not be liable for any deficiency in the extent of
the immovable property that may be revealed, nor shall he benefit
from any excess.

The Seller and the Purchaser agree that the Purchaser shall be
entitled, after date of signature of this agreement, to effect
alterations and/or improvements to the immovable property at his own

Clause 3 of the agreement
must be read together with Clause 10 thereof which in turn reads as


All income derived by or for the benefit of the Close Corporation,
shall accrue for the benefit of the Purchaser with effect from date
of signature of this agreement, from which date all risk in respect
of the Close Corporation, the immovable property and the movable
property, shall pass to the Purchaser.

The Purchaser is entitled to take possession of the immovable
property and movable property on date of signature of this

[14] Mr. Heathcote SC
together with Mr. Barnard appeared for the defendant. Mr. Totemeyer
SC together with Mr. Strydom appeared for the plaintiffs.

[15] Mr. Heathcote relies
primarily on the way Clause 10 of the agreement is phrased. It is
plain in its meaning and purpose, he contends.

[16] What Clause 10
achieves in the context of the agreement as a whole is that the
plaintiffs, who admittedly are foreign nationals acquire the right to
sole possession of and to occupy agricultural land for an indefinite
period, he submits.

[17] Mr. Heathcote did
not pursue the challenge on the basis that the plaintiffs had
acquired a controlling interest in the close corporation.

[18] Mr. Totemeyer’s
response to this is best summarized in paragraph 3 of the plaintiff’s
supplementary Note to their Heads of Argument. The passage I have in
mind reads as follows:

is submitted that once a 50% member’s interest in the CC owning
agricultural land is acquired, the members of the CC would be
entitled to exercise rights of occupation or possession in respect of
that property (and to agree with their fellow members how and to
which extent they would be entitled to occupy or use the farm”.

[19] In argument before
me the this point was developed into an argument that the agreement
in question grants the plaintiffs as members certain rights, one of
which is the right to occupy any property, should the close
corporation be the owner of any. Mr. Totemeyer points to Article 46
of the Close Corporations Act, Act 26 of 1988.

[20] Section 46 (a)
provides that “every member shall be entitled to participate in
the carrying on of the business of the corporation”. Section 46
(b) provides that with the exception of certain types of
transactions, members shall have equal rights in regard to the
management and representation of the corporation.

[21] None of these
provisions strike me as per se granting any member the right to
occupy immovable property. They clearly deal with matters entirely

[22] The argument
eventually evolves into one that the rights of the plaintiff to
occupy the land is an inherent right, as part and parcel, of a bundle
of rights, which accrues from the fact that they are members of the
Close Corporation concerned. As Mr. Totemeyer put it during argument
the right to occupy arises qua membership and not qua

[23] This submission may
have some merit were the membership of the Close Corporation confined
to a single member.

[24] It simply cannot be
that where there are four members as is the case here, each can claim
for himself or herself the right to occupy the whole or any portion
of the land without the consent of and to the exclusion of the other
members, merely by virtue of that membership. It is certainly in that
situation a matter upon which the members must agree.

[25] This is precisely
what the agreement contemplates, Clause 10 of the agreement settles
the question as to who will be entitled to occupy the land. The right
to occupation is conferred upon the plaintiffs by the agreement
itself and is not to be derived from the fact they are members.

[26] I conclude therefore
that the agreement is one in contravention of Section 58 (1)(b) of
the Act. In Müller v Schweiger 2005 NR. 98, van
Niekerk, J dealt with Section 58 of the Act. Having found that the
agreement in that case was one in contravention of this Act, she
concluded that the effect of that is that the agreement was void
ab initio
. I respectfully agree with those conclusions.

[27] Plainly a
recognition of this agreement will undermine the very purpose of the
Act. The plaintiff’s claims are based entirely upon the
agreement, which I have found to be void ab initio. The
consequence of that is that the Court will not entertain any claims
based on such a contract. Wessels: The Law of Contract In South
Par. 644.

[28] In the result I made
the following order:

  1. The special plea is

  2. Plaintiff’s claims
    are dismissed.

  3. The plaintiffs are
    ordered to pay the defendants costs jointly and severally, the one
    paying the other to be absolved.

  4. The defendant’s
    costs will include the costs of one instructing and two instructed



APPLICANT: Mr. Heathcote SC, assisted by Mr. Barnard

Instructed by:
Theunissen, Louw & Partners

Mr. Totemeyer SC, assisted by Mr. Strydom

Instructed by: Kirsten &