Windhoek — The High Court's ruling in favour of foreign owners challenging Government's erroneous expropriation processes of their farmlands, has affirmed that Namibia is premised on the rule of law, said Director of Legal Assistance Centre, Norman Tjombe, last week.

"All actions and decisions must be based on what the constitution requires. This is very important because with the terribly skewed land ownership in the country, the need for land reform will remain, and it will get more critical as time progresses, and we thus need to have clarity and guidance on the law and the requirements imposed by the law," Tjombe said.

The LAC has launched its publication based on the outcome of the case, Kessl: A New Jurisprudence of Land Reform in Namibia? Co-authored by Sidney Harring and Willem Odendaal, the paper argues that the judgment of the case presents an argument that the case does indeed set a new path towards a new jurisprudence of land reform in the country.

In March Judge Sylvester Mainga ordered that the decision by the Ministry of Lands and Resettlement to expropriate farms Gross Ozombutu, Okozongutu West, Welgelegen and Haimaterde in the Otjozondjupa region be set aside after the ministry and the Land Reform Advisory Commission failed to comply with several requirements of the Agricultural (Commercial) Land Act.

Government was ordered by the court to pay legal costs to the applicants Günther Kessl, Martin Josef Riedmaier, and the trustees of Heimaterde CC, jointly.

The owners of the farms are all German nationals residing in Germany.

Following a Cabinet decision in 2004 to expropriate 25 farms owned by 16 people, the four farms were served with notices to that effect.

Authors Harring and Odendaal said the decision by the Government to expropriate the farms is "suspicious", "and not likely based on policy consideration relative to the acquisition of suitable farms for the purpose of land reform and resettlement of poor people".

The authors said although the court's judgment was based on the land ministry's administrative failure in handling the expropriation process of the four farms, whether the lands minister could consider absentee ownership as one or two factors in deciding on an expropriation was not directly decided, although an implication exists that absentee or foreign ownership could be considered in a complex discretionary administrative decision-making process.

The court did hold directly that the Treaty with Germany forbade any discrimination against German citizens in land expropriation decisions.

Ultimately, said the co-authors, the case turned on narrower violations of Article 18 of the Constitution.

"It was not just that the ministry failed to meet even the most basic requirements of the ACLRA, such as personally serving the landowner, but also, there was a documented failure, detailed in ministry minutes, in the rational decision-making process. This has profound implications for land reform in that it revealed the ministry's basic dysfunctionality: the expropriation process is poorly managed on every level, and to protect itself, the ministry must constantly cover up its administrative incompetence."

The authors said that the court in this case stated that land reform is desirable and achievable under the law, and that in a democracy it must be achieved under the rule of law.

"The rule of law does not mean that bureaucrats can juggle procedures to make it appear that rules were followed; it means that this culture pervades the entire process - from start to finish. Every Namibian knows that something has gone deeply wrong with the land reform process.

The court has gone a great distance at both revealing what exactly has failed, and pointing out that there is a solution and land reform can go forward under the rule of law," the authors said.

It is understood that Government will appeal the decision of the High Court.