9)The Registrar of Deeds concerned shall upon production to him or her of the title deed to any immovable property mentioned in paragraph (1) endorse such title deed to the effect that the immovable property therein described is vested in the Government of Namibia and shall make the necessary entries in his or her registers, and thereupon the said title deed shall serve and avail for all purposes as proof of the title of the Government of Namibia to the said property."
Mr. de Bruyn submitted in the alternative that in so far as ownership did not revert back tot he Rehoboth Baster Community but vested in the first respondent in terms of the provisions of Schedule 5(1) it was tantamount to an expropriation of the appellant's land and it should have been compensated. He cited Blackmore v Hoodies G.K. and Exploration Co. Ltd. 1917 AD 402at 416-7.
Article 16 gives the right to all persons in Namibia to acquire, own and dispose of all forms of property. Sub-article (2) provides that:
"(2) The State or an competent organ authorised by law may expropriate property in the public interest subject to the payment of just compensation, in accordance with requirements and procedures to be determined by Act of Parliament."
There is no need to repeat what happened before Namibia became independent. Suffice to mention that by the time independence was granted to Namibia the Rehoboth Baster Community had no ownership or control of scheduled matters. In terms of section 23 and section 25 of Act 56 of 1976 what once was its property and which it held because it was the Government of Rehoboth passed over to a new government entity, the Government of Rehoboth. What is more the Rehoboth Baster Community ceased to exist as a public association with governmental authority long before the independence of Namibia. How can the Rehoboth Baster Community now claim that which it lost many years before the date of the independence of Namibia?
Mr. De Bruyn also contended that it was inconceivable that Article 124 read with Schedule 5(1) could be interpreted to mean that the Appellant should lose all its land that it had negotiated for over many years, paid for and held for over one hundred years without receiving any payment for it whatsoever. If the appellant lost its land it lost it with its eyes open when it agreed to self-government and surrendered all the
property it had acquired, as the Government of Rehoboth, to the new Government of Rehoboth. The Rehoboth Baster Community asked for self-government. It was granted self-government with all it's attendant consequences. One of those consequences was the surrender of ownership or control of property.
We do not see how under these circumstances Schedule 5(1) could be interpreted in accordance with the provisions of Article 16(2) of the Constitution as contended for by Mr. De Bruyn. The Government of Namibia did not expropriate appellant's property. The property did not belong to appellant. The ownership and control of all movable and immovable property vested in the Government of Rehoboth and paragraph (1) of Schedule 5 says, among other things, that "all property of which the ownership or control immediately prior to the date of independence vested ... in the Government of Rehoboth ... shall vest in or be under the control of the Government of Namibia".
It is difficult to understand why the appellant brought this action. It is difficult to understand why appellant changed its mind. Hannah J expressed the doubt on the appellant's apparent change of mind in his concurring judgment in this way:
"In 1976 the Baster Community, through its leaders, made a decision opting for Self-Government. The Community freely decided to transfer its communal land to the new Government. clearly it saw advantage in doing so. Then, in 1989, the Community, through the political party to which its leaders were affiliated, subscribed to the Constitution of an independent Namibia. No doubt, once again, the Community saw advantage in doing so. It wished to be part of the new unified nation which the Constitution created.- 29 -
The constitution, to which the Community freely subscribed, transferred, as the Judge-President has, if I may respectfully say so, amply demonstrated in his judgment, the property of the Government of Rehoboth to the newly constituted Government of Namibia. That it did so is perfectly understandable. One aim of the Constitution was to unify a nation previously divided under the system of apartheid. Fragmented self-governments had no place in the new constitutional scheme. The years of divide and rule were over.
Given these circumstances the Baster Community can, in my opinion, have no justifiable complaint that the communal lands which it owned over the past generations became vested, after independence, in Central Government. That they did so was a result of decisions freely taken by its leaders on its behalf, decisions which, at the time, were regarded as advantageous. As is made clear by this application the Community's leaders, or some of them, now see matters in a different light. They regret the decisions which were made. But it is not for this Court to attempt to change history even if it wished to do so."
If the appellant had intended to keep the property permanently because it was an association of persons at public law, it should never have agreed to the creation of the Government of Rehoboth.
It, however, agreed to its formation because self-government was negotiated with the Government of South Africa on "the basis of the proposals by the Baster Advisory Council of Rehoboth and at the request of the said people and without prejudicing any further constitutional development of the territory of South West Africa...". It has not been shown why there has been a change of mind.
And more importantly it has not been shown that the full bench of the Court a quo erred in its interpretation of sections 23 and 25 of the Act and its holding that the disputed properties
and the ownership or control of the moneys vested in the Government of Rehoboth was wrong. Further it has not be shown that the Court a quo erred in its interpretation of Article 124 and Schedule 5 of the Constitution.
In the event the appeal is dismissed with costs including the costs of employing two counsel.MAHOMED, C.J.
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COUNSEL FOR THE APPELLANTS: Adv. P.J. de Bruyn, S.C.
and with him Adv. W.H. Olivier
(Weder, Kruger and Hartmann)
COUNSEL FOR THE FIRST AND SECOND RESPONDENTS:
Adv. J.J. Gauntlett, S.C. and with him Adv. J.D.G. Maritz