A borderline case that never was...
Publish date: 21 October 2015
Issue Number: 8
Diary: A Matter of Justice
Category: A Matter of Justice
This was a case with enormous potential to embarrass both South Africa and Namibia whose mutual borders have never been properly finalised. But at the last minute the wealthy farmer who brought the application relented and a possible international dispute has been avoided, at least for now.
When Willem Agenbach, owner of the 10 000 ha farm Girtis, tried to evict two men from his property, he presumably had no idea that the case could explode into an international border dispute. But once the two men – part of a community of Nama people originally named ‘Bondelswarts’ by white settlers – found legal help of their own, the implications of the matters became clear.
Agenbach, who owns a second farm of 80 000 ha right next to Girtis, wanted brothers Willem and Paul Basson off his land. He planned to build a luxury lodge and the Bassons, with the rest of their immediate community (a group of about 150 people), would have been in the way. The Bassons live on the northern banks of the Orange River, and if the guests at Agenbach’s proposed lodge were to enjoy an interrupted view of the water, then the people Agenbach regarded as unwanted squatters would have to go.
For Agenbach and most observers, it would have seemed like a routine matter, typical of the eviction cases heard by the Namibian courts. But it turned out to be anything but typical.
The Bassons’ immediate community of just 20 people actually live in a tiny area between the normal water level of the Orange, and the river’s high water mark. When the river floods as it did in 1974 and 1988 the community moves away and returns when the waters subside. The big question the lawyers had to resolve was therefore who actually ‘owned’ the land below the high water mark: was it Agenbach – or was it perhaps even state land, belonging to Namibia or to South Africa?
In 1890 Britain and Germany concluded a treaty which among other issues settled the border between what were then known as the Cape Colony and German South West Africa. In terms of this Heligoland-Zanzibar Treaty, the border between them was set at the high water mark of the northern banks of the Orange River. In other words, the whole of the Orange River, including both banks, were said to fall in the Cape Colony. In terms of that treaty this would still be the valid border between modern-day South Africa and Namibia.
If this reading of the boundaries were to hold, then Agenbach’s farm ended not at the river itself, but at the high water mark of the Orange.
Attorney Norman Tjombe, who was asked for help by the Basson brothers and their community, found the situation even more complicated than this, however, after he consulted old deeds office records and maps. To begin with the border, odd – even arbitrary – though it might be, was ratified by no less a body than the African Union. In the union’s early days, at the Summit of Cairo during July 1964, it was decided to preserve borders existing at the time of a country’s independence in order to reduce conflict on the continent. As a result the Organisation of African Unity is committed to the principle of at least formalised respect for existing boundaries in Africa, albeit these are boundaries surviving from colonial times. And it has even established a special AU programme that helps with disputes over ill-defined colonial-era international borders.
On the other hand, when Namibia adopted its constitution in March 1990, that constitution stated that the border with South Africa lay in the middle of the Orange River. According to this interpretation, everyone living on the northern banks would be Namibian citizens.
And complicated matters even further, former South African President, Nelson Mandela, promised that the mid-river border as stipulated in the Namibian constitution would be recognised by South Africa. Mandela’s successor in office, Thabo Mbeki, did not agree that the border would be shifted, however, and the question has never been properly resolved.
As the Mandela agreement was an oral undertaking, ratified by parliament in neither country, it’s now simply an item on the list of possible causes of tension between the neighbouring states, and not one that Namibia is likely to push at the level of international law. That’s because Namibia took a similar border dispute to the International Court of Justice to decide which side of the border between Namibia and Botswana a mid-river island fell. After the ICJ’s 1999 ruling in favour of Botswana, Windhoek would probably not be keen to go up against Pretoria on the question of the precise border line. Windhoek would surely bide its time, figuring it would be better to wait for a more amenable administration in South Africa and then try to resolve the question by negotiation.
So where does all this leave the Bassons and their community? It promised to be an enormously difficult problem for the High Court in Windhoek to decide. If the northern banks were indeed South African territory, then the Bassons would technically be living in South Africa. They might even be South Africans. If the court was obliged to find for a mid-river border then the brothers would be living in Namibia. And what about the boundaries of Girtis, Agenbach’s farm? If the northern banks were held to be part of Namibia, where did the Agenbach farm lie? Were the farm’s boundaries affected when Namibia’s constitution unilaterally increased that country’s land mass? And would South Africa intervene if the court found officially in favour of Namibia’s extension of territory?
Given these tricky questions Judge Thomas Masuku was no doubt happy to learn, when the parties appeared in court earlier this week, that Agenbach’s lawyer were prepared to make some concessions.
Within 20 minutes of starting the case collapsed with Agenbach’s legal team conceding that wherever the Bassons and their community lived – South Africa or Namibia – it was clearly not on private land. In other words the boundaries of Girtis did not extend below the high water mark into the Bassons’ small, precarious tract.
Legally the Bassons are safe for now perhaps as Agenbach has no standing to evict them. But they have other problems to contend with. Paul Basson is critically ill and was not able to make the 800 km journey to court. Then there’s the future problem of diamonds. Their presence in the banks of the river make it possible, likely even, that at some stage one or other of the powers contesting the border will want to mine the area the Bassons, like an estimated 150 others who live at various places along the river in the no-man’s land below the high water mark – will once again have to fight for a place to live.
That’s the real problem of course: the ‘Bondelswarts’ and other communities in the far south of Namibia have been neglected by Windhoek since independence. These southern farms are the largest in Namibia, many of them with absentee owners – often foreigners – who visit annually for the hunting season.
For reasons that many Namibians find inadequate, their government has concentrated its land reform programmes in the agriculturally richer central and northern areas and has neglected the south. If the case had gone ahead Tjombe would have argued that the Basson case illustrates the problems of such neglect: this is an extremely poor community, repeatedly squeezed from their traditional lands. Now destitute, they live literally in the margins of land owned by the enormously wealthy: bounded by the river on one side and on the other by Agenbach with his 90 000 ha. And neither the Bassons nor Agenbach appear affected by the Namibian government’s land reform programme initiated and implemented in the capital in the north. Some 800 km away, it might as well be in another country altogether.
Article written by Carmel Rickard