THE fate of a scenic Erongo region farm at the centre of an ownership dispute between a Namibian professional hunter and farmer and a South African businessman could be determined by the minister of land reform.
This is after the Supreme Court last week dismissed an appeal by professional hunter Kai-Uwe Denker against a High Court judgement that dealt a blow to Denker's attempts to regain majority shareholding in the company owning farm Ameib in the Usakos area.
In the High Court's judgement, judge Shafimana Ueitele ordered in March last year that the minister of land reform should deal with Ameib, about 14 300 hectares in size, in terms of a section of the Agricultural (Commercial) Land Reform Act that gives the minister the power to decide whether to order a forced sale of land majority-owned by a foreign national, or whether the land should be bought by government.
With the Supreme Court dismissal of Denker's appeal against judge Ueitele's judgement, the order directing the minister to make a decision about the sale of Ameib remains in force.
Deputy chief justice Petrus Damaseb also pointed out that in terms of the law, the minister should first give a foreign land owner an opportunity to provide him, within 90 days, with a sale agreement or other evidence that the land unlawfully acquired by the foreign national would be transferred to someone legally allowed to own it.
Only if the foreign land owner has failed to do that would the minister have the power to order the sale of land in which a foreign national owns 50% or more.
Denker and South African Michael Viljoen had an agreement to buy Ameib in partnership before Denker made a winning bid for the farm at a price of N$10,3 million at an auction in July 2010. A shelf company, later named Ameib Rhino Sanctuary, of which Denker and Viljoen were the only shareholders, subsequently became the registered owner of Ameib.
The farm is part of the Erongo Mountain Rhino Sanctuary Trust, which is a wildlife conservation area of about 180 000 hectares in the scenic Erongo Mountains.
Because they had received legal advice that unless the prior written consent of the minister had been obtained, a foreigner is not allowed to own more than 49% in a company or close corporation owning commercial agricultural land in Namibia, the shareholding in Ameib Rhino Sanctuary was initially split 51/49 between Denker and Viljoen.
However, by the time the transfer of Ameib happened in August 2012, Denker's stake in the company was 50%, and a trust set up by Viljoen held the remaining 50%. The 50/50 shareholding split happened after Viljoen was incorrectly advised by a lawyer that it would not be illegal if he held 50% in a company owning agricultural land in Namibia.
According to Denker, he reluctantly agreed to have one of his shares in the company transferred to the Michael Viljoen Trust, and he would not have consented to the share transfer if he had not been misled by the legal advice.
However, Denker had previously been advised that only a 51/49 shareholding split, with a Namibian as majority shareholder, would do, deputy chief justice Damaseb noted in his judgement.
He said that it would have been expected of Denker to get independent legal advice about a transaction in which he was committing himself to investing more than N$6 million. It was apparent, though, that the dominant motive on the part of Denker and Viljoen was to find a way around the strictures of the Agricultural (Commercial) Land Reform Act, and that a 50/50 shareholding split was what they intended to have all along, the deputy chief justice commented.
Appeal judges Dave Smuts and Elton Hoff agreed with the decision to dismiss Denker's appeal.
Senior counsel Reinhard Tötemeyer, assisted by Deon Obbes, represented Denker, on instructions from law firm ENS Africa Namibia. Viljoen was represented by senior counsel Jeremy Gauntlett, assisted by Jesse Schickerling, on instructions from Francois Erasmus & Partners.
Source: https://www.namibian.com.na/62033/read/Hunter-loses-appeal-over-Erongo-farm-dispute
This is after the Supreme Court last week dismissed an appeal by professional hunter Kai-Uwe Denker against a High Court judgement that dealt a blow to Denker's attempts to regain majority shareholding in the company owning farm Ameib in the Usakos area.
In the High Court's judgement, judge Shafimana Ueitele ordered in March last year that the minister of land reform should deal with Ameib, about 14 300 hectares in size, in terms of a section of the Agricultural (Commercial) Land Reform Act that gives the minister the power to decide whether to order a forced sale of land majority-owned by a foreign national, or whether the land should be bought by government.
With the Supreme Court dismissal of Denker's appeal against judge Ueitele's judgement, the order directing the minister to make a decision about the sale of Ameib remains in force.
Deputy chief justice Petrus Damaseb also pointed out that in terms of the law, the minister should first give a foreign land owner an opportunity to provide him, within 90 days, with a sale agreement or other evidence that the land unlawfully acquired by the foreign national would be transferred to someone legally allowed to own it.
Only if the foreign land owner has failed to do that would the minister have the power to order the sale of land in which a foreign national owns 50% or more.
Denker and South African Michael Viljoen had an agreement to buy Ameib in partnership before Denker made a winning bid for the farm at a price of N$10,3 million at an auction in July 2010. A shelf company, later named Ameib Rhino Sanctuary, of which Denker and Viljoen were the only shareholders, subsequently became the registered owner of Ameib.
The farm is part of the Erongo Mountain Rhino Sanctuary Trust, which is a wildlife conservation area of about 180 000 hectares in the scenic Erongo Mountains.
Because they had received legal advice that unless the prior written consent of the minister had been obtained, a foreigner is not allowed to own more than 49% in a company or close corporation owning commercial agricultural land in Namibia, the shareholding in Ameib Rhino Sanctuary was initially split 51/49 between Denker and Viljoen.
However, by the time the transfer of Ameib happened in August 2012, Denker's stake in the company was 50%, and a trust set up by Viljoen held the remaining 50%. The 50/50 shareholding split happened after Viljoen was incorrectly advised by a lawyer that it would not be illegal if he held 50% in a company owning agricultural land in Namibia.
According to Denker, he reluctantly agreed to have one of his shares in the company transferred to the Michael Viljoen Trust, and he would not have consented to the share transfer if he had not been misled by the legal advice.
However, Denker had previously been advised that only a 51/49 shareholding split, with a Namibian as majority shareholder, would do, deputy chief justice Damaseb noted in his judgement.
He said that it would have been expected of Denker to get independent legal advice about a transaction in which he was committing himself to investing more than N$6 million. It was apparent, though, that the dominant motive on the part of Denker and Viljoen was to find a way around the strictures of the Agricultural (Commercial) Land Reform Act, and that a 50/50 shareholding split was what they intended to have all along, the deputy chief justice commented.
Appeal judges Dave Smuts and Elton Hoff agreed with the decision to dismiss Denker's appeal.
Senior counsel Reinhard Tötemeyer, assisted by Deon Obbes, represented Denker, on instructions from law firm ENS Africa Namibia. Viljoen was represented by senior counsel Jeremy Gauntlett, assisted by Jesse Schickerling, on instructions from Francois Erasmus & Partners.
Source: https://www.namibian.com.na/62033/read/Hunter-loses-appeal-over-Erongo-farm-dispute
