The complicated battle for Farm Rustig 416, formerly known as Otjituezu, measuring 6,700 hectares and is located about 100 kilometers east of Windhoek, has taken a new twist after disputed owner Gerson Zaire was given an eviction notice.
Zaire received a letter through his lawyers yesterday stating that he should vacate the place completely before the 30th of September.
The complicated struggle for the farm emerged as a result of a court mandated sale of the property based on a judgement in favour of Zaire’s debtors who successfully sued for relief. The farm was sold to the government for of N$16,3 million on the 22 August 2019. All outstanding debts and obligations were paid from the sales amount and the undisclosed remainder was given to Zaire, the Windhoek Observer has learned.
Zaire is dissatisfied with how the sale of his farm proceeded. He is adamant that he will leave no stone unturned to reclaim his ancestral land, alleging that there were several irregularities during the handling of the sale.
Before the court sold his farm, Zaire asked the ministry for a waiver to either subdivide the land to sell only a portion of it to settle his debts or sell it whole for a higher price. As per the law, government has the first option on all farm land sold in Namibia.
While the ministry of lands refused the waiver in the end, they initially sought a legal opinion from Attorney General (AG), Sakeus Shanghala.
A legal opinion by the AG which has been seen by this newspaper concluded that, “considering the fact that the minister [of lands] failed to constitute the Land Tribunal timeously, setting a date [now] would be unfair to Mr Zaire (and may attract legal challenges). It is thus my considered opinion that the issuance of a waiver over Farm Rustig (Otjituezu) is best.” Shanghala sent this letter of advice to the Minister of Lands, Utoni Nujoma on August 2, 2019, before Zaire’s land was sold by the courts.
Zaire, anxious to have this issue reconsidered in his favour said, “I just want my waiver as per the instruction of the Attorney General (Sakeus Shanghala). I am sitting with potential buyers who are willing to pay the correct amount of money for the farm and if that happens, the monies that government spent on buying the farm will be repaid,” Zaire said maintaining that he is not prepared to lose out sitting with a viable option.
The AG’s advice was built on the fact that the Ministry had approached the High Court of Namibia, to give effect to Section 17(8) of the Agricultural (Commercial) Land Reform Act 1995, an action, which he deemed ‘premature considering the facts surrounding the matter.’ This because Zaire had on two occasions unsuccessfully requested the Land Tribunal to affix a date for purposes of price determination.
The aggrieved Zaire, who professed to be currently landless, fumed that the Minister of Land Reform has ignored several other orders for the granting of the certificates of waiver. As such, he is now seeking President Hage Geingob’s involvement in the matter.
“I have written to him to plead for his interference but I have not heard from the President’s Office since,” Zaire said.
Press Secretary and Presidential Advisor, Dr. Alfredo Hengari could not be reached for comment. Messages left on Land Minister Nujoma’s mobile phone proved fruitless.
In May 2019, Zaire was informed in a letter that government was going to purchase the farm at a rate of N$2,480 per hectare amounting N$16,36 million. He was further advised that attorneys at Theunissen, Louw and Partners were attending to the transfer.
In a letter dated the 22 of August 2019, the Deputy Sheriff of Windhoek, Manfred Hennes ordered Zaire to vacate the farm with all his livestock, private possessions and farm labourers within ten days of the date of the letter.
On the 23 of August 2019, the Deputy Sheriff and some officials of the Ministry of Land Reform where were on the farm, purportedly to familiarise themselves with the farm. Their actions limited his movement on the property as locks were placed in several locations.
In the communication to law firm Theunissen, Louw & Partners, on the 29th of August 2019, Shikongo Law Chambers, representing Zaire, made an urgent request for the submission of the sale agreement as well as a breakdown of the purchase price settled on, including an indication of deficit or surplus, if any, remaining following the conclusion of the sale. The lawyers also requested that their client be awarded at least six months to prepare his exit from the farm.
“We have not received a reply yet. We are also yet to receive a reply on our request to be allowed to deal with the Minister of Land Reform directly, on the matter,” Zaire said.
Land on fire
In December 2018, Agribank was granted a default judgment of N$3,67 million as well as an order declaring Farm Rustig as executable. Zaire initially brought the farm on the 13 of December 2002 for N$2,26 million with a loan from Agribank. He reportedly defaulted twice on the annual installments prompting the involvement of the courts.
This was not the first time that the farm was at the heart of a dispute. In an unrelated matter, another judgment was given in favour of PDS Holdings (BVI) Limited, a company with which Zaire had dealings. This company was issued an order on 13 March 2014 to reclaim its debt and farm Rustig was declared executable.
At that time, the auction was advertised in the media and the farm was initially sold for N$20.5 million to Grace Investments 121 and 122 on 14 July 2015. It however emerged that, the deputy sheriff had not offered the land to the government prior to its sale as per the law. The sale could thus not proceed and PDS again turned to the court. Judge Parker ruled against the foreign company, which operates from the British Virgin Islands.