Swiss national loses land battle
The Supreme Court has dismissed an application by Swiss national, Thomas Wyss, to inherit his late father's 49% shares in Laconia CC, which owns Laconia No 141 in the Otjiwarongo area.
The farm is co-owned by former national planning permanent secretary Leevi Hungamo and his wife, Tereza. Wyss' father Kurt, who entered into an associate arrangement with the Hungamo couple, died in January 2011 without leaving behind a will. While his three other siblings renounced their inheritance, Thomas, as the only remaining intestate heir decided to pursue co-ownership of the farm.
Wyss Snr, in terms of the agreement with the Hungamos, had certain rights in respect of the occupation and use of the farm and certain conditions were agreed upon should the deceased wished to sell his interests. This included an agreement in respect of the price of his interest.
When Wyss Snr died the Hungamos indicated that they would object to a liquidation and distribution account (LDA) transferring his shares to any other person other than themselves. The Hungamos argued that the association agreement they have entered into with Wyss Snr was void and contrary to the Agricultural (Commercial) Land Reform Act of 1995, which prohibits foreigners from acquiring agricultural land without prior written consent by the lands minister. Thomas, however, insisted that he is personally entitled to be a “full and unfettered owner” of his father's interests in the farm and took the matter to the High Court.
The High Court dismissed his application, saying that a deceased estate is not a legal person and has no constitutional rights. It further ruled that the heir had no right to specific assets in an estate prior to the finalisation of the LDA and that the association agreement was indeed illegal and void. The Supreme Court judgement, read by Judge Theo Frank, said the deceased had “acquired” a membership - the 49% shares in Laconia CC - which he could only dispose of with the consent of his co-members, the Hungamos.
Frank said the deceased could have obtained permission in advance from co-members of the CC to dispose of his membership to specifically mentioned persons, but that he decided not to do so, and that Thomas thus cannot claim there is a breach of a constitutional right.
Catherine Sasman
The farm is co-owned by former national planning permanent secretary Leevi Hungamo and his wife, Tereza. Wyss' father Kurt, who entered into an associate arrangement with the Hungamo couple, died in January 2011 without leaving behind a will. While his three other siblings renounced their inheritance, Thomas, as the only remaining intestate heir decided to pursue co-ownership of the farm.
Wyss Snr, in terms of the agreement with the Hungamos, had certain rights in respect of the occupation and use of the farm and certain conditions were agreed upon should the deceased wished to sell his interests. This included an agreement in respect of the price of his interest.
When Wyss Snr died the Hungamos indicated that they would object to a liquidation and distribution account (LDA) transferring his shares to any other person other than themselves. The Hungamos argued that the association agreement they have entered into with Wyss Snr was void and contrary to the Agricultural (Commercial) Land Reform Act of 1995, which prohibits foreigners from acquiring agricultural land without prior written consent by the lands minister. Thomas, however, insisted that he is personally entitled to be a “full and unfettered owner” of his father's interests in the farm and took the matter to the High Court.
The High Court dismissed his application, saying that a deceased estate is not a legal person and has no constitutional rights. It further ruled that the heir had no right to specific assets in an estate prior to the finalisation of the LDA and that the association agreement was indeed illegal and void. The Supreme Court judgement, read by Judge Theo Frank, said the deceased had “acquired” a membership - the 49% shares in Laconia CC - which he could only dispose of with the consent of his co-members, the Hungamos.
Frank said the deceased could have obtained permission in advance from co-members of the CC to dispose of his membership to specifically mentioned persons, but that he decided not to do so, and that Thomas thus cannot claim there is a breach of a constitutional right.
Catherine Sasman
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