New Oanob development challenged
An objection to a 'lifestyle village' at the Oanob Dam has exposed loopholes in the original lease agreement.
The mother of all property battles is raging and heading for court over a newly planned development on the banks of Oanob Dam after an objection by Acasia Resorts of Christie Benade, which operates the Lake Oanob Resort.
The new development is brought by Oanob Dax CC, which intends to build the Oanob Lifestyle Village, a township development of 167 housing units on slightly more than 239 hectares on Farm 1127, which Acasia claims to have been renting since 1994.
Acasia Resorts is trying to block the development, or any other interference with its rights as leaseholder, by the developers.
It also demands that the Rehoboth town council, the Rehoboth Deeds Office, and the Namibian government sign all necessary documentation to have its lease of several portions around the dam registered with the Deeds Office.
A court date is yet to be established but the legal challenge could open a can of worms.
Background
The directors of Acasia Resorts at the time, Benade and Sandra Tjitendero, the late wife of founding National Assembly Speaker Mose Tjitendero, entered into a 50-year lease agreement with the Ministry of Agriculture, Water and Rural Development in November 1994.
The lease agreement, which came into force in December 1994, is renewable for another 50 years, which means that the lease of the properties could theoretically span over 100 years.
In terms of the contract Acasia Resorts would rent a total area of 6256.392 hectares at N$12 000 per year.
The agreement covered the rental of Farm Sandputz No. 50 (of 2485.974 ha), a certain portion of Farm Sandputz No. 50 (374.026 ha), a certain portion of Farm Rehoboth Dorpsgrond No. 302 (1518.392 ha), and a certain portion of Farm Rehoboth Dorpsgrond No. 302 (2023.995 ha).
In its legal challenge Acasia demands that these portions of land be registered to it against the title deeds for the land.
Acasia also states that Farm 1127 falls within its leased land.
The Ministry of Urban and Rural Development in April 2017 approved the subdivision of Portion 31 of the Farm Rehoboth Dorpsgrond No. 302 into Farm 1127 and the remainder for the township development requested by Oanob Dam Lifestyle Development.
The counter-challenge
Oanob Dax CC plans to develop the residential units on Farm 1127, which it bought from the Rehoboth town council for N$5 million.
It claims over N$8 million from Acasia, which it says it has lost because of Acasia's objection.
The managing director of Oanob Dax CC, Hendry Derks, argues in court submissions that the 1994 lease agreement was invalid and illegal. Oanob Dax makes this argument on the back of a secret cabinet action letter dated 22 February 1994 – months before the November 1994 contract was signed.
According to this letter a cabinet committee was to be established to consider Acasia's proposed development. A cabinet committee on economic development and parastatals was assigned to negotiate with Acasia on issues relating to the terms and conditions of the lease.
Oanob Dax therefore argues that the agriculture minister who signed the contract, then Nangolo Mbumba who is currently the vice president, should only have acted with the authorisation of this cabinet decision.
Oanob Dax argues that the 1994 contract should have been informed by the 1994 cabinet resolution and claims that according to this the lease agreement with Acasia should have been only 25 years – thus running out in November 2019.
Another cabinet letter dated 10 April 2001 stipulated that a lease agreement of 25 years with Acasia had been agreed upon.
Importantly, this cabinet letter resolved to terminate the existing lease agreement and appointed a cabinet committee with the agriculture minister as the chairperson to renegotiate or amend the existing lease agreement with the successor in title of Acasia Resorts and other shareholders. Oanob Dax further argues that Acasia is in breach of the contract because it has allegedly defaulted on rental payments and has entered into long-term sub-leases for portions of the land, which is in contravention of the lease agreement.
According to the lease agreement Acasia cannot erect permanent structures without the approval of the government.
The Rehoboth town council, which is the owner of the land occupied by Acasia, was also not a signatory to this agreement.
Rehoboth deeds office
The Rehoboth Deeds Office, which is one of the respondents in the matter, also argues that the 1994 lease agreement with Acasia is not in compliance with the Formalities of Leases of Land Act of 1969, which provides that no long lease will be valid for longer than 10 years unless it is registered. The Deeds Office says Acasia's lease agreement was never registered with its office since it was entered into in 1994 and that no stamp duties were paid.
It states that the agreement cannot be registered in its current form because only leases that have been notarially executed can be registered.
CATHERINE SASMAN
The new development is brought by Oanob Dax CC, which intends to build the Oanob Lifestyle Village, a township development of 167 housing units on slightly more than 239 hectares on Farm 1127, which Acasia claims to have been renting since 1994.
Acasia Resorts is trying to block the development, or any other interference with its rights as leaseholder, by the developers.
It also demands that the Rehoboth town council, the Rehoboth Deeds Office, and the Namibian government sign all necessary documentation to have its lease of several portions around the dam registered with the Deeds Office.
A court date is yet to be established but the legal challenge could open a can of worms.
Background
The directors of Acasia Resorts at the time, Benade and Sandra Tjitendero, the late wife of founding National Assembly Speaker Mose Tjitendero, entered into a 50-year lease agreement with the Ministry of Agriculture, Water and Rural Development in November 1994.
The lease agreement, which came into force in December 1994, is renewable for another 50 years, which means that the lease of the properties could theoretically span over 100 years.
In terms of the contract Acasia Resorts would rent a total area of 6256.392 hectares at N$12 000 per year.
The agreement covered the rental of Farm Sandputz No. 50 (of 2485.974 ha), a certain portion of Farm Sandputz No. 50 (374.026 ha), a certain portion of Farm Rehoboth Dorpsgrond No. 302 (1518.392 ha), and a certain portion of Farm Rehoboth Dorpsgrond No. 302 (2023.995 ha).
In its legal challenge Acasia demands that these portions of land be registered to it against the title deeds for the land.
Acasia also states that Farm 1127 falls within its leased land.
The Ministry of Urban and Rural Development in April 2017 approved the subdivision of Portion 31 of the Farm Rehoboth Dorpsgrond No. 302 into Farm 1127 and the remainder for the township development requested by Oanob Dam Lifestyle Development.
The counter-challenge
Oanob Dax CC plans to develop the residential units on Farm 1127, which it bought from the Rehoboth town council for N$5 million.
It claims over N$8 million from Acasia, which it says it has lost because of Acasia's objection.
The managing director of Oanob Dax CC, Hendry Derks, argues in court submissions that the 1994 lease agreement was invalid and illegal. Oanob Dax makes this argument on the back of a secret cabinet action letter dated 22 February 1994 – months before the November 1994 contract was signed.
According to this letter a cabinet committee was to be established to consider Acasia's proposed development. A cabinet committee on economic development and parastatals was assigned to negotiate with Acasia on issues relating to the terms and conditions of the lease.
Oanob Dax therefore argues that the agriculture minister who signed the contract, then Nangolo Mbumba who is currently the vice president, should only have acted with the authorisation of this cabinet decision.
Oanob Dax argues that the 1994 contract should have been informed by the 1994 cabinet resolution and claims that according to this the lease agreement with Acasia should have been only 25 years – thus running out in November 2019.
Another cabinet letter dated 10 April 2001 stipulated that a lease agreement of 25 years with Acasia had been agreed upon.
Importantly, this cabinet letter resolved to terminate the existing lease agreement and appointed a cabinet committee with the agriculture minister as the chairperson to renegotiate or amend the existing lease agreement with the successor in title of Acasia Resorts and other shareholders. Oanob Dax further argues that Acasia is in breach of the contract because it has allegedly defaulted on rental payments and has entered into long-term sub-leases for portions of the land, which is in contravention of the lease agreement.
According to the lease agreement Acasia cannot erect permanent structures without the approval of the government.
The Rehoboth town council, which is the owner of the land occupied by Acasia, was also not a signatory to this agreement.
Rehoboth deeds office
The Rehoboth Deeds Office, which is one of the respondents in the matter, also argues that the 1994 lease agreement with Acasia is not in compliance with the Formalities of Leases of Land Act of 1969, which provides that no long lease will be valid for longer than 10 years unless it is registered. The Deeds Office says Acasia's lease agreement was never registered with its office since it was entered into in 1994 and that no stamp duties were paid.
It states that the agreement cannot be registered in its current form because only leases that have been notarially executed can be registered.
CATHERINE SASMAN
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