Court name
Supreme Court
Case name
Meroro v Minister of Lands Resettlement and Rehabilitation and Others
Media neutral citation
[2015] NASC 6
Judge
Maritz JA










REPORTABLE


CASE
NO. SA 3/2008


IN
THE SUPREME COURT OF NAMIBIA


In
the matter between:


MICHAEL
DAVID
MERORO
................................................................................................Appellant


and


MINISTER
OF LANDS, RESETTLEMENT AND


REHABILITATION.....................................................................................................First
Respondent


CHAIRPERSON
OF THE LAND REFORM


ADVISORY
COMMISSION
...................................................................................Second
Respondent


MINISTER
OF AGRICULTURE, WATER AND


RURAL
DEVELOPMENT
........................................................................................Third
Respondent


HILIA
MERORO
.....................................................................................................Fourth
Respondent


Coram:
MARITZ JA, CHOMBA AJA and MTAMBANENGWE AJA


Heard:
12 June 2009


Delivered:
2 April 2015


APPEAL
JUDGMENT


MARITZ
JA (CHOMBA AJA and MTAMBANENGWE AJA concurring):


[1]
This appeal, in main, concerns the interpretation and application of
s 53 of the Agricultural (Commercial) Land Reform Act, No. 6 of 1995
(the Act). The Act provides for the acquisition of agricultural land
by the State for purposes of land reform and for the allocation
thereof to Namibian citizens who do not own or otherwise have the use
of any or adequate land and who have been socially, economically or
educationally disadvantaged by past discriminatory laws or
practices.[1]

The
Act contemplates the pursuit of this objective via a number of
different avenues. The one followed in this case was the acquisition
of agricultural land by the State in a commercial farming area;[2]

the
subdivision of the land into holdings, which were later surveyed and
registered as separate farming units in the Deeds Office;[3]

the
allotment of the registered farming units to successful qualifying
applicants under 99-year lease agreements[4]

and
the registration of the leases subject to the overriding application
of a number of statutory conditions[5]

-
one of the conditions being that stipulated in s 53 which deals with
the cancellation or assignment of such leases upon the death or
mental incapacity of lessees.


[2]
The
farm Corsica No. 89 was acquired under the Act, subdivided into four
holdings duly surveyed and subsequently registered with the Registrar
of Deeds as farming units in terms of an allotment plan approved by
the Minister of Lands, Resettlement and Rehabilitation[6]

(the
Minister) on 27 May 2002.  Responding to an official notice
inviting applications for the allotment of those farming units by
leases, Mr David Hosea Meroro, applied on 4 July 2002 to be resettled
under a 99-year lease on one of those units, i.e. the one registered
as farming unit B (the farm). His application was successful and, on
7 April 2003, he concluded a written 99-year lease with the Minister,
the latter acting in his nominal capacity on behalf of the
Government. Already of an advanced age and not in good health when he
took occupation of the farm under the lease, he passed on a number of
months later, i.e. on 18 January 2004.  Upon his passing, he
left behind his wife, Mrs Hilia Meroro and a number of children,
amongst them, Mr Michael David Meroro. The latter is the appellant in
this appeal and was the applicant in the proceedings before the court
a
quo
.


[3]
The
deceased’s surviving spouse, whom he had married during 1999 in
a civil law ceremony concluded under the Marriage Act, 1961, was
appointed as executrix in his intestate estate in terms of letters of
executorship issued by the Magistrate, Windhoek shortly after his
passing.[7]

At
the time, the magistrate’s powers of appointment were derived
from Reg 3 of the Regulations[8]

framed
under s 18(9) of the
Native
Administration Proclamation
,
15 of 1928. Given the importance of the Regulations for purposes of
the discussion that follows, I interpose here to point out that the
Regulations were declared unconstitutional by the High Court on 14
July 2003 in
Berendt
and Another v Stuurman and Others
[9]
but
that the Court suspended the declaration of unconstitutionality to
accord Parliament an opportunity to redress the unconstitutionality
by no later than 30 June 2005. The Court also ordered that, until the
latter date or the date on which the unconstitutionality would be
remedied, whichever would be the earlier, the Regulations made under
s 18(9) of the Proclamation would be deemed valid. Parliament
subsequently repealed s 18(9) of the Proclamation in s 1 of the
Estates
and Succession Amendment Act,
2005
on 29 December 2005 and, with that, also the Regulations made
thereunder. The repeal did not affect the continuing application of
the rules of the intestate succession that applied by virtue of the
provisions of the Proclamation prior to the repeal[10]

or,
subject to certain provisions to which I shall refer later, the
liquidation and distribution of the estates of deceased persons that
was administered immediately before the date of commencement of the
Estates
and Succession Amendment Act
.[11]


[4]
The
date of the deceased’s passing and of the appointment of his
surviving spouse as executrix of the deceased estate (the executrix)
fell within the period of the subsection’s deemed validity in
terms of the High Court’s order. Given the provisions of the
Estates
and Succession Amendment Act
,
the estate had to be administered, liquidated and distributed by the
executrix in accordance with the rules of intestate succession that
applied by virtue of the provisions of the Proclamation and in terms
of the Regulations made under s 18(9) of the Proclamation.

[12]


[5]
By
accepting the appointment, as she did, the entire deceased estate[13]

vested
in her as executrix.[14]

She
became the sole and nominal representative thereof and, by the act of
acceptance, assumed the fiduciary duty[15]

to
administer the deceased estate in good faith, with due care and
diligence[16]

in
accordance with the law. An incident of these duties is that an
executrix or executor –


is
not free to deal with the assets of the estate in any manner he
pleases. His position is a fiduciary one and therefore he must act
not only in good faith but also legally. He must act in terms of the
will and in terms of the law, which prescribes his duties and the
method of his administration and makes him subject to the supervision
of the Master in regard to a number of matters.’ [17]


It
is trite that her main duties as executrix were to secure possession
of the assets of the estate; to determine the liabilities of the
estate; to liquidate the estate to the extent required to meet its
liabilities and, ultimately, to distribute the remainder of the
estate to the rightful heirs and other beneficiaries in accordance
with the law.


[6]
Subject to the provisions of the Act, the
rights and obligations that the deceased had under the 99-year lease
immediately prior to his passing became part of the aggregate of
assets and liabilities comprising the deceased estate that vested in
the executrix upon her appointment. Of those provisions, s 53 is the
most pertinent to determine the ambit of the rights and obligations
under the lease that vested in the executrix; to consider the
legality of the conduct and decisions of the parties pertinent to the
issues at hand and to assess the validity of the conflicting
contentions and claims put forward in this appeal. It is therefore
necessary to quote it extensively:


53
Death or mental illness of lessee


(1)
If a lessee dies, or if a curator is appointed for a lessee under any
law relating to mental health, the executor of the lessee's estate or
such curator, as the case may be, may assign the lease to any person
who is approved in writing by the Minister on the recommendation of
the Commission.


(2)
Pending the assignment of the lease in accordance with the provisions
of subsection (1), the executor or curator shall continue the lease
on behalf of the estate or the lessee, as the case may be, subject to
the provisions of this section and the terms and conditions of the
lease, and which shall be fulfilled by the executor or curator or on
his or her behalf by a person nominated by him or her and approved in
writing by the Minister.


(3)
If the executor or curator fails to assign the lease within the
period of three months after the date of his or her appointment as
executor or curator or such longer period as the Minister may allow,
the Minister may cancel the lease, in which event, the executor or
curator shall be entitled to be paid by the State, in accordance with
the provisions of section 45, compensation for the benefit of the
deceased estate or the lessee, as the case may be.


(4)
Notwithstanding anything to the contrary in any other law contained,
the Minister may deduct from any compensation payable in terms of
subsection (3), any rent due or any other debt owing to the State in
respect of the farming unit.


(5)
If, pending the assignment of the lease or during the period the
lease is continued by the executor or curator as provided in
subsection (2), the executor or the curator or the person nominated
by him or her in terms of that subsection, as the case may be, fails
to comply with any requirement of this Part which was applicable to
the lessee or fails to fulfil any term or condition of the lease, the
provisions of section 50 and 51 shall apply.’


[7]
It is clear from a reading of subsec (2)
that, subject to the other provisions of the section, the executrix
was obliged to continue the lease on behalf of the estate pending the
assignment or cancellation thereof. She sought to assert these rights
and obligations as executrix/nominal lessee in respect of the farm,
but the appellant, who,
de facto
occupied the farm at all relevant times after the passing of his
father, resisted her endeavours.  The appellant claimed that he
had been considered by his late father to be his successor and that
his father intended that he should ‘take over’ the lease
upon his passing. He also alleged that, because of his father's
ailing health and advanced age, he had carried on the farming
activities at his own expense on behalf of his father ever since the
conclusion of the lease agreement. Eager to substitute his late
father as lessee under the lease or otherwise obtain a lease in
respect of the farm, he sought the Minister’s approval to that
effect, purporting to do so in terms of s 53 of the Act. A letter of
the appellant’s lawyers dated 4 March 2004 accompanied his
application. In the penultimate paragraph of the letter they captured
the essence and purpose of his application:


Under
the circumstances our client is eager and willing to be substituted
as lessee under the lease agreement and is it our instructions in
terms of section 53 of the Land Reform Act
to
request your approval for the cession of the lease agreement by the
executor to our client or alternatively to cancel the existing lease
and to enter into a new lease agreement with our client

as all our client’s machinery and livestock are already located
thereon. For purposes of the above we annex hereto an application
form duly completed for your consideration. We also submit that our
client is a fit and proper person and complies with all the
requirements to be resettled.’  (Emphasis added)


[8]
As it happened, the executrix and a number
of other members and representatives of the Meroro family co-authored
a letter to the Permanent Secretary on the same day. In it, they
collectively protested the fact that the appellant was acting as if
the farm was his property and that he had refused to give the
executrix or any other member of the Meroro family access to the
farm. The letter includes a request by the family members that
'registration of the farm should . . . (be) passed to Mrs Hilia
Meroro as the Head of the Family'; states that she, as the new head
of the family, would be responsible together with the children of the
deceased for the 'well-being' of the farm; records that they
collectively authorise the Ministry of Lands, Resettlement and
Rehabilitation (the Ministry) to transfer the farm to 'Ms Hilia
Meroro and the family' and calls on 'the Director and the Permanent
Secretary to intervene by issuing an order to stop or prevent' the
appellant and his brother from entering onto the farm without the
consent of the executrix, the family and the Ministry.


[9]
The Permanent Secretary of the Ministry
responded on 19 April 2004 to the appellant's application. He advised
that the lease was subject to the conditions of the Act; that the
lease in respect of the farm could only be dealt with in terms of s
53 of the Act and other relevant policies of the Ministry; that in
terms of the Act ‘Mrs. Hilia Meroro, the widow of the late
David Meroro, is the beneficiary’; that the Ministry was
‘therefore not in a position to advise unless we are advised
differently by the family or other legally constituted structures (as
prescribed by the law)’ (
sic).
He also attached a copy of the letter that he had received earlier
from the executrix and other members of the family for the
appellant's information.


[10]
The appellant took umbrage at the Permanent
Secretary’s response. In a letter to the Minister, written by
his lawyers on 12 July 2004, he challenged the Permanent Secretary's
position that the deceased’s wife was the beneficiary under the
Act and stated that the Act required 'a beneficiary to assign the
lease to a person by the Honourable Minister, in writing, and on the
recommendations approved by the commission' (
sic).
He again asserted that he had been ‘named as one of the
beneficiaries' by the deceased. As regards the letter signed by
members of the Meroro family, he maintained that not all the members
of the family had signed the letter and that there were others, more
directly related to the deceased, who were in favour of his request
that the lease should be assigned to him.


[11]
The issues surrounding the farm were tabled
at a meeting of the commission on 15 July 2004 and the minutes
reflect the following:


The
son of the late Mr Meroro is attempting to evict the widow from the
unit, after the death of Mr Meroro. The surviving spouse should take
over the allotment unless there is a will to the contrary according
to the policies and procedures set out by the Ministry. The
information, in our possession indicates that there is no will in
existence that has been prepared contrary to the policy of the
Ministry with regard inheritance of an allotment.


Resolution:
Mrs. Meroro has the right to inherit the allotment and the son has no
right to deprive the widow of access to the property in accordance
with our policies and procedures.’


[12]
Pursuant to this resolution, the Minister,
the chairperson of the commission and the chairperson of the National
Resettlement Committee co-authored a letter to the executrix on 14
July 2004 in which she was advised as follows:


The
Ministry of Lands, Resettlement and Rehabilitation herewith confirms
the transfer of lease right on the farm Corsica, Farm No 89, farming
unit B in the Khomas Region, from the Estate of the late David Meroro
to his wife Mrs. Hilia Meroro, to whom he was married in community of
property under the Namibian Marriage Act.


This
is done in accordance with section 53, paragraph 1 of the
Agricultural (Commercial) Land Reform Act (Act No 6 of 1995), which
deals with the death of a Lessee.’


[13]
The date of the letter notwithstanding, the
appellant and the executrix were apparently only informed during
October 2004 of the Minister’s decision – in the case of
the appellant, only after he had heard rumours about the decision and
had written to request particulars thereof. Before that, on 2
September 2004, the lawyers of the executrix demanded of him to
vacate the farm within seven days, failing which, she (in her
capacity as executrix) would take 'whatever steps might be necessary
to secure his eviction or removal from the . . . farm'. The demand
was repeated on 3 November 2004 but that time around, in her personal
capacity as ‘lawful holder of the lease right granted to her by
the Minister’.


[14]
Aggrieved by the decisions adverse to his
interests, the appellant brought an application in the High Court
against the Minister, the chairperson of the commission, the Minister
of Agriculture, Water and Rural Development and the executrix (cited
as first to fourth respondents respectively) in which he sought an
order in the following terms:


1.
Reviewing and/or correcting and/or setting aside the first, second
and third respondents’ decision dated 15 July 2004 to dismiss
the applicant’s application for resettlement/lease in respect
of farm Corsica, No 89 unit B, registration division “K”,
Khomas Region.


2.
Reviewing and/or correcting and/or setting decide the first, second
and third respondents’ decision dated 1 October 2004 to award
and allocate the farm Corsica, No 89 Unit B, registration division
“K”, Khomas Region to the fourth respondent.


3.
Declaring the decision of the first, second and third respondents
dated 1 October 2004 to award and allocate the farm Corsica, No 89
Unit B, registration division “K”, Khomas Region to the
fourth respondent to be in conflict of Articles 12 and 18 of the
Constitution.


4.
Directing that the first, second and third respondents (and in the
event of the fourth respondent opposing) pay the costs of this
application, jointly and severally, the one paying the other to be
absolved’.


[15]
All the respondents initially opposed the
application but the executrix, who, in her personal capacity was the
beneficiary of the decisions, later withdrew her opposition. The
Permanent Secretary of the Ministry deposed to an answering affidavit
on behalf of the remaining three respondents. The matter was
eventually heard by Parker J and, on 5 December 2007, he made the
following order:


'1.
That the decision of the 2
nd
respondent made on 15 July 2004 to recommend to the 1
st
respondent to approve the assigning of the farm Corsica No. 89, Unit
B, Registration “K”, Khomas Region, by the 4
th
respondent to herself and the decision of the 1
st
respondent to approve the said assignment on 20 July 2004 is hereby
reviewed and set aside.


2.
That the applicant must vacate the farm referred to in the next
preceding paragraph of this order (i.e. para (1) hereof) within 14
days of the date of this judgment in order to
allow the 4
th
respondent to take occupation of the said farm and in order to
continue the lease peaceably on behalf of the estate of the deceased
lessee.


3.
That the 4
th
respondent must, within three months of the date of this judgment,
assign the lease in the said farm to any person in terms of s. 53(1)
of Act No. 6 of 1995. If
the 4
th
respondent fails to assign the lease within the aforementioned time
limit, the relevant provisions of s. 53 of Act No. 6 of 1995 shall
come into force as contemplated therein.


4.
That there shall be no order as to costs.’


[16]
The appellant noted an appeal against paras
2, 3 and 4 of the order and the first and second respondents noted a
cross-appeal against para 1 of the order. For reasons of convenience,
I shall first deal with the cross-appeal against para 1 of the order
and, thereafter, with the appeal against the remainder of the order.
Before I do so, I must point out that, although the court
a
quo
dealt in its judgment with facts
and issues relevant to prayers 1 and 3 of the Notice of Motion, it
neither granted nor dismissed the relief sought therein. No appeal
has been noted against this omission. This is probably so because the
appellant accepted the findings of the court
a
quo
that, given the provisions of ss
41(1) and 53 of the Act, the appellant’s application to be
substituted for the deceased as lessee under the lease was
misconceived and bad in law and, therefore, that there was ‘no
application by the applicant before the first respondent in terms of
s 41 of the Act’. This finding implies that no decision, on
which the relief in para 1 of the notice of motion was premised, had
or could have been taken.  As regards prayer 3 of the Notice of
Motion for a declarator, the court found that Art 18 of the
Constitution (entrenching the right to fair administrative justice)
should have been complied with in respect of the administrative
decisions that had been taken and, on that premise, decided the
remainder of the relief asked. Given the reasoning of the Court, the
applicant might well have been satisfied that it was not necessary
for the Court to expressly declare, in addition to the order setting
aside the decisions, that they were taken in conflict with Art 18 of
the Constitution.


[17]
I now turn to the first to third
respondent’s cross-appeal against the order of the court
a
quo
reviewing and setting aside the
decision of the commission taken on 15 July 2004 to recommend to the
Minister that the assignment of the farm by the fourth respondent to
herself should be approved and the latter’s approval of the
assignment on 20 July 2004. The court
a
quo
set aside the commission’s
decision to make the recommendation in question to the Minister on
the ground that the commission had acted unfairly for a number of
reasons – with which I shall deal presently - and, because the
Minister acted on that recommendation, also set aside the Minister’s
decision.


[18]
The first reason given by the court for
invalidating the commission’s decision is based on the
commission’s failure to direct that the appellant’s
application for resettlement on the farm should be brought to the
attention of the executrix for her to determine to whom she was going
to assign the lease. The court reasoned that, being aware of the
appellant's ‘demonstrated genuine and legitimate interest in
succeeding to the lease’ as disclosed in the application, the
commission should have so directed or ‘rerouted’ the
application to the executrix, had it been 'minded to be fair and
reasonable in the exercise of its statutory discretionary power’.
The second reason is that the executrix failed to consider the
‘suitability’ of the appellant to be assigned the lease
before deciding to assign it to herself.


[19]
My difficulty with the court’s
reasoning is twofold: it does not appreciate (a) that the principles
applicable under common law and the law of succession by which an
executor/executrix must identify who should benefit from a
disposition by means of assignment in a deceased estate are
completely different from the considerations that may bear on the
question whether the assignee is a ‘suitable’ person who
may benefit from the land reform mechanisms provided for in the Act
and (b) that the procedures applicable and authorities appointed to
ensure the legality of dispositions by assignment under the law of
succession are entirely different from those contemplated by the Act
for the approval of assignments in furtherance of the objectives of
the Act.


[20]
The power of an executor to ‘assign
the lease to any person’ contemplated in s 53(1) is not
unfettered and cannot be exercised in an arbitrary fashion as pointed
out earlier. This may perhaps be best illustrated by a rhetorical
question: if a lessee under such a lease were to leave a will in
which he or she directs that the lease should be assigned to a named
beneficiary upon his or her passing, will the executor be at liberty
to assign it instead to any other person favoured by him or her (the
executor)? If not, should it be any different when the lessee died
without leaving a valid will but the rightful heir is identifiable by
the principles of either customary or common law on intestate
succession (whichever one of the two sources of law applies in the
circumstances)?


[21]
As I have remarked earlier in the judgment,
the rights and obligations that the deceased had under the lease
become part of the aggregate of assets and liabilities comprising the
deceased estate upon his passing. This is also, in my view, in line
with what the Legislature intended when it promulgated s 53.
Subsection (2) requires of the executor to ‘continue with the
lease
on behalf of the estate
and, should the lease be cancelled by the Minister in terms of subsec
(3), ‘the executor . . . shall be entitled to be paid by the
State . . .
compensation for the benefit
of the deceased estate
. . . .'


As
such, all the rights and obligations of the deceased under the lease
vested in the executrix upon his passing.[18]

She
had the fiduciary duty to administer his intestate estate and,
ultimately, to distribute the available assets in accordance with the
applicable dictates of law – whether they derive from customary
law, common law, the provisions of the Constitution or statute, a
redistribution agreement concluded amongst the heirs or any
combination thereof[19]. As a
matter of substantive law, the person to benefit from the assignment
of the lease must be determined by reference to the applicable laws
of succession - not by the wishes or whims of the executor or by his
or her view of the beneficiary’s ‘suitability’
based on criteria falling outside the ambit of those laws.


[22]
If
the general principles of common law[20]

relating
to intestate succession must be applied – as seems to be the
case[21]

in
this instance – the appellant’s place in the order of
succession and his entitlement, if any, that the lease should be
assigned to him as an heir must be determined as a matter of
substantive law. So too, the entitlements of all the other children
and those of the executrix (in her personal capacity), who had been
married to the deceased in community of property under civil law. So
regarded, none of the particulars in the appellant’s
application for resettlement and the lawyer’s covering letter
dated 4 March 2014 was of relevance to the executrix in assessing his
entitlement to benefit by assignment of the lease under the law of
succession other than the fact that he was one of the deceased’s
children willing to accept such benefit. The latter was well-known to
the executrix. Any referral of the appellant’s application for
resettlement by the commission to the executrix – as the court
a
quo

held that it should have done - would not have assisted her in
determining which beneficiary would be entitled to the assignment of
the lease according to the principles of the law of intestate
succession.


[23]
Moreover,
as regards the legality of the disposition of the rights and
obligations under the lease by assignment to the executrix, it should
be borne in mind that the supervising authority to see to it that the
laws applicable to intestate succession and the prescribed procedures
were followed in administering and distributing the estate under
consideration in a transparent, accountable and legal manner was the
magistrate, Windhoek[22]

and/or
the Master of the High Court.[23]
 
Any
complaint about the administration, liquidation or distribution of
the estate by the executrix (which would include an assignment of the
lease to herself), had to be lodged with the magistrate or the
Master, as the case may be – not with the Minister. The
Minister and the officials in the Ministry do not have supervisory
authority over the administration, liquidation and distribution of
deceased estates and do not have structures in place within the
Ministry to exercise such supervision. That authority generally
resides in the Master of the High Court or, in certain instances
(such as the one under consideration), in the Magistrate of the
district in which the deceased resided upon his or her passing.
Neither does the Minister or any official in the Ministry have the
power to make decisions and give directions on those matters –
there is not even a provision that they should generally be informed
of matters concerning the administration of estates. They, therefore,
would not have known which claims or objections the appellant or any
other beneficiary in the estate might have made; whether they have
been considered by the executrix or the magistrate/Master or
precisely on which legal basis in the law of succession the executrix
was entitled to assign the lease to herself (assuming for the moment
that she had done so). Not knowing whether the facts and submissions
advanced in the appellant’s application for resettlement were
in law relevant to the assignment, it does not seem to me that there
was a duty on the commission to refer the appellant's application for
resettlement to the executrix. Consequently, its failure to
‘redirect’ the appellant’s application for
resettlement to the executrix did not render the proceedings before
the commission unfair.


[24]
In
the view I take, the Minister does not have any authority in terms of
s 53 to assign a lease or to approve or disapprove of the executor’s
act of assigning a lease
per
se
.
The lease, being for a period of 99 years, of necessity extends
beyond the lifetime of the lessee. It is therefore expressly provided
in s 38 of the Act that it may be assigned by the executor upon the
passing of the lessee.[24]

He
or she may do so as of right. The Minister’s authority is
circumscribed. The Minister may either approve or not approve (on the
recommendation of the commission) the person to whom the lease has
been assigned by the executor - the operative phrase of the section
being: ‘
to
any person who is approved

in writing by the Minister on the recommendation of the
Commission’.[25]

The
Minister’s approval or disapproval of the assignee is not
informed by the applicable principles and provisions of the law of
succession but by the provisions and objectives of the Act, i.e. to
benefit, foremost, Namibian citizens who have been socially,
economically, or educationally disadvantaged by past discriminatory
laws or practices and who do not have access to any or adequate land.
The converse is equally true: an executor’s decision to assign
a lease to a particular person is not informed by the ‘suitability’
of the assignee under the Act but by the person’s legal right
to such assignment on the applicable principles and provisions of the
law of succession. I interpose here to note that, if the legitimate
heir identified by the executor within the parameters of the law of
succession as assignee of the lease is on good cause not approved by
the Minister as ‘suitable’ within the parameters and
objectives of the Act, the executor and beneficiaries in the deceased
estate may well have to address the quandary by means of a
redistribution agreement or through other available legal mechanisms.
This concern does not arise in this case and it is therefore not
necessary to make any definite finding on the available alternatives
in such instances.


[25]
The stated purpose of the appellant's
application for resettlement was to seek the Minister's approval 'for
the cession of the lease agreement by the executor' or,
alternatively, for the Minister 'to cancel the existing lease and to
enter into a new lease agreement' with the appellant. It was in
pursuit of those purposes that the appellant included particulars and
contentions to the effect that he was 'a fit and proper person (who
complied) with all the requirements to be resettled'. Aspects of the
application dealing with the request to cancel the lease, to resettle
the appellant on the farm and the appellant’s suitability for
resettlement fell outside the ambit of the legal considerations which
the executrix had to apply in determining who the lease should be
assigned to. The only part of the application that could have been of
relevance to her decision on the assignment of the lease was that, as
the son of the deceased, he desired that the lease should be ‘ceded’
to him. That said, it is trite that, in the absence of a renunciation
by a beneficiary, an executor must generally depart from the premise
that legatees and other heirs and beneficiaries in a deceased estate
are desirous or amenable to accept the benefits that they are
entitled to in law. The fact that the appellant was keen to be
resettled on the farm was also apparent from his conduct and the
executrix could not have been mistaken on that point. For these
reasons, the commission’s referral of the appellant’s
application to the executrix would not have added anything to what
she already knew about the appellant’s relationship to the
deceased and his desire to succeed the deceased as lessee of the
farm.


[26]
Consequently, I find myself unable to agree
with the finding of the court
a quo
that the appellant's application should have been brought to the
attention of the executrix 'to enable her to consider whether she
should assign the farm to the (appellant), to herself, or to another
person’. It must also be noted that the appellant did not seek
an order to review or set aside any decision by or conduct of the
executrix. It was not necessary, therefore, for her to defend the
legality of her decisions or for the court
a
quo
to determine whether the fairness
or reasonableness of her actions or decisions were affected by her
failure to consider the appellant’s application to the
Minister.


[27]
The third reason for the court's finding
that the commission's decision was unfairly taken is because the
Ministry did not disclose its policies on resettlement and certain
‘facts’ to the appellant - the only ‘fact’
referred to being an entry appearing in the minutes of the
commission's meeting on 15 July 2004 that he was trying to evict the
executrix from the farm. I shall first consider the finding of
unfairness based on the failure of the Ministry to disclose its
policies on resettlement to the appellant and, thereafter, with the
finding by the court that the decision was unfair because the
commission based its decision on an 'allegation’ that the
appellant 'was attempting to evict the widow . . . from the . . .
farm, after the death of the deceased without giving (him) an
opportunity to be heard on the point’.


[28]
The National Resettlement Policy of the
Ministry is set out in a printed document available from the
Ministry. It has not been alleged by the appellant in his founding
affidavit that he was not aware of the existence of the policy or of
its terms.  He was represented by legal practitioners at all
relevant times to the application and the attention of his lawyers
was specifically drawn by the Permanent Secretary in para 1 of the
Ministry’s letter on 19 April 2004 to the fact that the farm
had been leased to the deceased 'conditional to the provisions of the
. . . Act . . .
and that of the National
Resettlement Policy (and administrative guidelines)
'
of the Ministry (my emphasis). In para 2 of the same letter, the
appellant's lawyers were advised that the farm could, therefore, only
be dealt with in terms of s 53 of the Act 'and other relevant
policies of the Ministry’. It is of some significance on this
issue that, in their response on 12 July 2004 to the Permanent
Secretary's letter, the appellant's lawyers did not make any
reference to the resettlement policy or requested copies thereof - as
the commission could reasonably have expected them to do, had they
been unaware of the terms or existence of the policy, given the
Ministry’s express and specific reliance thereon in the letter.
On these facts, I do not find support for the finding of the court
a
quo
that the policy, which is a public
document, had not been disclosed as it should have been.


[29]
I am also not persuaded that the
'allegation' that the appellant was trying to evict the executrix
from the farm was a ‘fact’ which should have been
disclosed to him prior to the commission’s meeting so that he
could respond thereto either by letter or personal appearance before
the commission – as the court held. It is my understanding of
the minutes that, what the appellant now labels as an 'allegation',
was actually a finding of the commission based on the facts and
circumstances that they considered at the meeting. That being the
case, the timeline made disclosure thereof before the meeting and an
invitation to respond thereto – as the court required –
impossible. The question should rather be whether the commission,
applying its mind to the facts before it, could have reasonably
arrived at that conclusion?


[30]
The letter of the Meroro family to the
Permanent Secretary on 4 March 2004 was undoubtedly an important
source of the facts considered by the commission. In the letter it
was expressly stated that the appellant was treating the farm as his
property and that he was the only person having access to it. The
Permanent Secretary forwarded a copy of this letter to the
appellant’s lawyers on 19 April 2004 – well before the
commission’s meeting - and, although the lawyers commented on
other matters mentioned in the letter, they did not deny  these
allegations. The veracity of allegations is further supported in
broad terms by the statements made by the appellant’s lawyers
in the letter that accompanied the appellant's application for
resettlement on 4 March 2004. The letter states on his behalf that,
after the death of his father, the executrix 'has neither lived,
reside or settled on the farm at all and any effort by her and her
extended family to obtain residence will be
mala
fide
’; that the appellant had
'exercised daily personal control over the day-to-day management of
the farm (and) held the keys to the farm entrance to prevent
unauthorised entry’. The application, I should add, was
intended to secure a ‘cession’ of the lease to the
appellant to the exclusion of the executrix and, ultimately, his
resettlement on the farm. If these facts are considered against the
background of possession under the lease that the executrix jointly
exercised over the farm through the estate that she had jointly
shared with her husband during his lifetime by virtue of their
marriage in community of property; the obligation imposed on her as
executrix by s 53(2) of the Act to continue with the lease on behalf
of the estate after his passing; the consequences which may result
should she fail as executrix to comply with any of the requirements
that had been applicable to her late husband under Part V of the Act
or fail to fulfil any term or condition of the lease, the inference
is inescapable that the appellant's conduct amounted to a
de
facto
deprivation of occupation which
she jointly had with her husband before his passing and a denial of
access after that event. These considerations, in my view, reasonably
informed the commission’s inference that, on the totality of
facts and circumstances placed before it by the appellant and the
Meroro family, the appellant was attempting to ‘evict’
her from the farm.


[31]
It is for these reasons that I cannot
support the grounds on which the court
a
quo
found that the decisions of the
commission and Minister should be set aside. It does not, however,
follow that the cross-appeal should succeed without more: the
appellant also challenged the validity of the decisions on a number
of other grounds raised in his founding affidavit and it is only if
those grounds lack merit that the cross-appeal must be dismissed.


[32]
The appellant alleged, amongst others, that
the jurisdictional facts required for the exercise of the Minister’s
discretion under the Act were not present; that the commission and
the Minister did not appreciate the nature of their duties and
discretion in terms thereof and that they acted
ultra
vires
those provisions. Read in the
factual context of this case, these assertions raise the following
questions: Did the executrix assign the lease for the Minister to
approve of the assignee as contemplated in s 58 of the Act? If not,
did the Minister appreciate that, without such an assignment, he
could neither effect nor ‘confirm the transfer of the lease
right’ on the farm to the executrix or, for that matter,
approve of an ‘assignee’? To the extent that the
commission recommended an assignment of the lease or the Minister
purported to assign the lease to the executrix, did they act within
their powers in terms of the section? It is to these questions that I
shall turn next.


[33]
The
concept of an ‘assignment’ (and its derivatives), when
used in the context of lease agreements, is a term of art with
defined legal substance and consequences: it contemplates the cession
of all rights and the delegation of all obligations under a lease to
the assignee. If effected by the lessee, his or her rights under the
lease accrue to the assignee, who, at the same time also assumes the
obligations thereunder. It terminates the rights and discharges the
obligations of the previous lessee, thus effectively substituting the
assignee as tenant in lieu of the lessee for the remainder of the
lease.[26]

Wessels
J remarked in
Rolfes,
Nebel & Co v Zweigenhaft
[27]
that
‘an assignee is a person who enjoys the benefits and takes over
the obligations of the lessee’ under the lease.


[34]
The transfer of the remainder of the lease
in this way is, in substance, what s 58(1) of the Act required of the
executrix to do. What she purported to do, however, was something
completely different. In the Meroro-family’s letter of 4 March
2004, they requested and authorised the Ministry to pass
‘registration of the farm’ to the executrix as head of
the family. The letter was co-signed by the executrix as one of the
members of that family, not in her official capacity as executrix in
the deceased estate. But even if I were to accept that she also made
the request in her nominal capacity, the request made and
authorisation given therein was for the Ministry to ‘transfer
the farm’ to 'Ms Hilia Meroro and the family'. What she and the
family sought to achieve is not what s 58(1) contemplates or allows.
The proprietary rights which vests in a new owner upon the transfer
of a farm in his or her name are vastly different from the aggregate
of rights accruing to and obligations assumed by an assignee in
respect of the remainder of a lease over a farm. Her request
evidences no appreciation that she, as executrix, had the duty to
assign the lease; that she had to do it in favour of a person or
persons entitled to the assignment under the law of succession; that,
upon approval of the assignee by the Minister, the assignee would
become the lessee under the lease (not the owner of the farm) and
that the limited rights acquired and multiple obligations assumed as
such would be those stipulated in the lease and prescribed by the Act
and that the assignee, with full appreciation of these consequences,
consented to become the new lessee under the lease. Inasmuch as the
Meroro-family letter was the only formal communication of the
executrix’ intentions, could it be said that by asking for the
transfer of the farm to her and the family, she appreciated that she
would at best only become a co-lessee under the lease and, by
implication, consented to be bound as such by the terms and
conditions thereof? The question needs only be asked for its answer
to be apparent. The Permanent Secretary of the Ministry stated in his
answering affidavit on behalf of the first to third respondents that
the executrix had made repeated requests that the farm should ‘be
transferred to her as per the decision of the Meroro family’
and, based thereon, submits that she either expressly or by conduct
assigned the farm to herself. For the reasons already given, the
evidence lacks the required factual basis to substantiate the
submission. Counsel was also unable to refer us during argument to
any statement that would support the inference suggested.  In my
view, the conclusion is inescapable on the evidence that the
executrix never assigned the lease to herself or any other person in
terms of s 53(1) of the Act.


[35]
It
is evident from a reading of the subsection that it is framed on the
premise that, if an assignment is to be effected because of the
lessee’s passing, the assignment may only be done by the
executor/executrix appointed to administer the deceased lessee’s
estate.  On this point, I agree with the court
a
quo

where it held that ‘only the executor of the estate of the
deceased has the statutory power to assign the remainder of the lease
. . . .’.[28]
 
In
the absence of an assignment by the executrix (acting in her nominal
capacity) to a lawful beneficiary in the deceased estate, the
Minister had no power or authority under s 53(1) to ‘assign’
the lease to her in her personal capacity or, for that matter, to any
other person. By deciding to confirm ‘the transfer of lease
right on the farm’ to the executrix, the Minister failed to
appreciate that the subsection precluded any person other than the
executrix to assign the lease and that he had no power to do so.
Inasmuch as he purported to effect the assignment on the
recommendation of the commission, he acted
ultra
vires

his powers under the Act. For that reason, his decision was null and
void and the High Court was correct in setting it aside - albeit for
different reasons. In the result, the first  to third 
respondents cross-appeal against par 1 of the order of the High Court
must fail.


[36]
The
main appeal is directed against paras 2, 3 and 4 of the order of the
court
a
quo
,
i.e. that the appellant must vacate the farm within 14 days of the
date of the order for the executrix to take occupation thereof; that
the executrix must assign the farm within 3 months of the date of the
judgment failing which, the Minister may cancel the lease and,
finally, that there will be no order as to costs. Aside from the
order dealing with costs, none of these orders have been sought on
motion by any of the litigants – least of all by the appellant
who brought the application in the first instance.[29]


[37]
The
specific relief that the appellant sought and the respondents opposed
is contained in the notice of motion. In application proceedings, the
affidavits lodged by the litigants in support or opposition of the
relief prayed for ‘take the place not only of the pleadings,
but also of the essential evidence’[30]

that
would be adduced in action proceedings at a trial. The relief, as
formulated in the notice of motion, determines the cause that must be
shown and the evidence that must be presented by applicants in their
founding papers. It also informs the respondents of the case they are
required to meet in answer and of the orders that may be granted
against them should they fail to do so. In this instance, there was
also no counter-application for relief against the appellant that he
had to answer to. I interpose here to remark that had the Permanent
Secretary of the Ministry been mindful to seek an order that the
appellant should vacate the farm, he should have obtained authority
from the first to third respondents to bring a counter-application to
that effect rather than simply noting a request to that effect in the
answering affidavit filed on their behalf.


Neither
was there an application to amend the notice of motion at or before
the hearing, which may sometimes be allowed in the absence of
prejudice and on good cause shown. As it were, the executrix had
withdrawn her opposition to the application prior to its hearing and
an amendment at the hearing contemplating an order compelling her to
perform a specific act within a set period would have required
further notice to her.


[38]
Had the first to third respondents moved a
counter-application against the appellant that he should vacate the
farm within a period of 14 days, the appellant may have raised a
number of defences. He could conceivably have resisted such a prayer
on the ground that he had a right to retention over the farm until
compensated for necessary expenses incurred by him during his late
father’s lifetime. Whether he had a defence which would have
been good in law is not known, because he was never called upon to
meet such a case. At the very least, he should have been accorded an
opportunity to raise the defences that he might have had. The order
in para (2) made against him to vacate the property within 14 days
came without affording him a procedurally fair and adequate
opportunity to resist it. For that reason, it was irregular and
cannot be sustained.


[39]
The order that the executrix must assign
the lease within 3 months, failing which the Minister may cancel the
lease, was also not part of the relief sought by the appellant. The
order was made without any notice to her and without affording her an
opportunity to resist it. Unlike s 53(3) of the Act, the 3
month-period set by the court’s order does not even allow for
an extension of the period by the Minister. Such extensions may well
be required if claims against the estate or the manner in which the
executrix proposes to distribute the assets of the estate (including
a proposed assignment of a lease) is disputed by an interested party.
I also find it difficult to understand that she was directed to
assign the lease in circumstances where the judgment of the court
a
quo
was premised on the fact that she
had assigned the lease to herself and, as I have pointed out earlier,
the application did not challenge the legality of any act or decision
of the executrix. All of the substantive relief that the appellant
sought, was directed against the decisions of the first  to
third respondents - not any of the decisions made by the executrix.
For these reasons, the proceedings resulting in the order made in
para (3)
a quo
is also irregular and that order falls to be set aside.


[40]
The reason why the court a
quo
declined to award costs to the
appellant was because his ‘misconceived and misrouted’
application to be resettled on the farm formed a major part of the
application and was the basis on which he sought part of the relief.
It is indeed so that he was unsuccessful in obtaining the relief
prayed for in para 1 of the notice of motion (i.e. to have the
decision of the first to third respondents to dismiss his application
for resettlement on the farm set aside) and that it formed a major
part of his application. It is trite that a trial court has a wide
discretion in awarding costs and I am not persuaded that the
appellant has shown good cause why we should interfere with the
judicial exercise of that discretion.


[41]
The refusal of the appellant’s
application for resettlement did not feature in this appeal and the
same considerations that informed the order of costs made in the High
Court do not find any application here. The costs in the appeal
should follow the result.


For
these reasons, the following order is made:


1.
The main appeal against paras (2) and (3) of the order of the High
Court under Case No (P) A 221/06 succeeds and those orders are set
aside.


2.
The cross-appeal against para (1) of the order of the High Court is
dismissed.


3.
The first to third respondents in the main appeal and first to third
appellants in the cross-appeal jointly and severally, the one paying
the other to be absolved, pay the costs of the appeal and
cross-appeal, such costs to include the costs of one instructing and
one instructed counsel.


______________________


MARITZ
JA


______________________


MTAMBANENGWE
AJA


______________________


CHOMBA
AJA


APPEARANCES


APPELLANT:
J A N Strydom


Instructed
by Koep & Partners


RESPONDENTS:
M Nixon


Instructed
by Government Attorney








[1]
The objectives are conveniently summarised in the long title of the
Act. Compare also s 14 of the Act.




[2]
See: s 14(2) of the Act read with the definition of ‘agricultural
land’ in s 1 and with ss 14(3), 17(4), 58 and 59 of the Act.




[3]
Compare the definition of ‘farming unit’ in s 36 and the
provisions of ss 38 and 39 of the Act.




[4]
See: ss 41 and 42(1) of the Act.




[5]
See: ss 42(2) and 43 to 56 of the Act.




[6]
In terms of s 39 of the Act.




[7]
The date of her appointment does not appear on the certified copy of
the letter included in the record of appeal but the certification by
the Namibian Police bears a date stamp of 8 March 2004. For that
reason the original must have been issued before that date.




[8]
Published in Government Notice 70 of 1954 on 1 April 1954




[9]
2003 NR 81 (HC) at 88E-F.




[10]
Section 1(2) of
the
Estates
and Succession Amendment Act, 2005

provides as follows: ‘Despite the repeal of the provisions
referred to in subsection (1), the rules of intestate succession
that applied by virtue of those provisions before the date of their
repeal continue to be of force in relation to persons to whom the
relevant rules would have been applicable had the said provisions
not been repealed.’




[11]
Section 1(2) of
the
Estates
and Succession Amendment Act, 2005

reads: ‘The estate of a person who died before the date of
commencement of this Act which was administered, immediately before
that date, in terms of the Native Administration Proclamation, 1928
. . . must be liquidated and distributed and any matter relating to
the liquidation and distribution of such estate must be dealt with
as if this Act had not been passed.’




[12]
It falls outside the scope of this judgment to deal with the
specific manner in which the estate falls to be distributed but
consideration should nevertheless be given on this point to Reg 2(a)
of the Regulations promulgated by Government Notice 70 of 1954 (SWA)
on 1 April 1954 (as applied by Government Notice R192 of 1974) that
provides: 'If a native dies without leaving no valid will, his
property shall be distributed in the manner following:- (a) If the
deceased, at the time of his death, was – (i) a partner in a
marriage in community of property . . . the property shall devolve
as if he had been an European'. Compare also s 1(1)(
a)
of the Intestate Succession Ordinance, 1946 (as amended by s 1(a) of
Act 15 of 1982).




[13]
Although the letter of executorship refers to the estate of her
husband only, it would have been more correct to refer to the joint
estate: the marriage was concluded in community of property because
it was solemnized in Windhoek without an antenuptial contract.
Windhoek does not fall within the area defined as the ‘Police
Zone’ to which the converse matrimonial regime contemplated in
s 17(6) of the
Native
Administration Proclamation, 1928

applies (Compare
Mofuka
v Mofuka

2003 NR 1 (SC) at 3H-4A;
Mofuka
v Mofuka

2001 NR 318 (HC) at 322B-C and
Valindi
v Valindi and Another

2009 (2) NR 504 (HC) at 510 B). By referring to the deceased estate,
I do not mean to limit it to her late husband’s portion of the
estate only.




[14]
Although the surviving spouse in a marriage concluded in community
of property is under common law entitled to a half-share of the
joint estate as his or her own property, that entitlement is not
enforceable immediately upon the passing of the first-dying spouse
ab
intestato
.
Meyerowitz,
'The
Law and Practice of Administration of Estates' (5 ed)
at
125 deals with this aspect as follows:


12.23  
Upon the death of a spouse married in community of property, the
whole joint estate falls under the administration of the executor of
the deceased, even if the survivor is the husband, and only the
executor has locus standi to sue or to be sued.


Although
the community of property is terminated by death, the surviving
spouse is not automatically and immediately vested with dominium
of half of each asset. It is the duty of the executor of the joint
estate to discharge all its liabilities and it is the half of the
net balance of the joint estate which vests in the surviving
spouse.’




[15]
De
Wet NO v Attie Badenhorst (Edms) Bpk
1963
(3) SA 117 (T) at 119B-D




[16]
Compare:
Clarkson
NO v Gelb and Others
,
1981 (1) SA 288 (W) at 293D – 294C and the authorities cited
therein.




[17]
See:
Meyerowitz,
supra,
p 123.” If the estate has not been brought under the
supervision of the Master in terms of s 3(3) of the Estates and
Succession Amendment Act, 2005, the reference to 'Master' in the
quotation must be read as 'Magistrate'.




[18]
Section 53(5) of the Act expressly require her to comply with the
requirements of Part V of the Act that were applicable to the lessee
and with the terms and conditions of the lease, failing which, the
lease may be cancelled in terms of s 50 of the Act and any debt due
to the State in terms thereof would be payable forthwith.




[19]
For the sake of convenience, I shall collectively refer to those
laws, in so far as they bear on the distribution of deceased estates
as the ‘laws of succession’.




[20]
As modified by the Constitution and statute.




[21]
Compare: Reg 2(a) of the Regulations framed under s 18(9) of Proc 15
of 1928 and the references and comments in fn 8.




[22]
See: Reg 3 referred to in fn 8 read with s 10(1)(
a)
of Act 27 of 1985 and s 3(2) of Act 15 of 2005.




[23]
See: The court held in
Berendt
and Another v Stuurman and Others

2003 NR 81 (HC) that the Master had concurrent jurisdiction with the
magistrate pending the steps to be taken by Parliament to redress
the unconstitutionality of s 18(9) and the Regulations framed
thereunder and, since the promulgation of s 3(3) and (4) of the
Estates and Succession Amendment Act, 2005, the Master will have
exclusive supervisory powers, if a person with an interest in the
estate requests him or her in writing to administer the estate.




[24]
Even without such a provision, there would have been a presumption
in favour of assignment. Compare
Wessels:
The
Law of Contract in South Africa
,
by Sir JW Wessels (2 ed) edited by AA Roberts
et
al
,
Butterworths, 1951 where he states in para 1739: ‘“The
real question . . . to determine is whether our law implies that a
lease of property in
longum
tempus

is a lease to the tenant only, or to the tenant, his heirs and
assigns. Now, the longer the period, the greater is the presumption
that the parties intended the contract with all its obligations to
be transmissible to the assigns of the lessee.’




[25]
To quote the concluding provisions of s 65(1).




[26]
In
Green
v Griffiths

(1886) 4 SC 346 De Villiers CJ remarked (at 351): 'In regard to
assignees, however, by our law, agreeing in this respect with that
of Scotland, but not with that of England, an assignment is not
complete as such unless it has the effect of substituting the
assignee as tenant in lieu of the original lessee - in other words,
of transferring the lessee's contractual obligations towards the
lessor from the lessee to the assignee'. Compare also the discussion
by Goldin JA in General Finance Co (Pvt) Ltd v Robertson 1980 (4) SA
122 (ZA) at 130




[27]
1903
TS 185 at 189




[28]
In para 10 of the judgment, I do not agree with the remainder of the
sentence that the Minister ‘merely approves of the
assignment’. As I have held earlier, the executrix had the
right to assign the lease and the Minister’s power was limited
to either approve or not to approve of the assignee, given the
objectives and provisions of the Act to mainly benefit previously
disadvantaged Namibians.




[29]
This must be evident from a comparison between the relief set forth
in the notice of motion as quoted in para [14] of this judgment and
the terms of the order recited in para [15] above.




[30]
Hano Trading CC v JR 209 Investments (Pty) Ltd and Another, 2013 (1)
SA 161 (SCA)  para 10.