transaction in which he was involved in the purchase of agricultural land in collaboration with foreign nationals. He was aware that there is a law which circumscribes the ownership of land by foreign nationals. That, by itself, must have placed him on guard to seek independent legal advice which, according to him, he did not do. There is no explanation why not, especially if one considers that Viljoen was pursuing a personal interest which Denker should have guarded against. Denker was aware that he had deposed to an affidavit in terms of s 61(1) of the Land Reform Act which similarly should have rung alarm bells and made him more cautious and, crucially, he had the benefit of previous advice that only a 51/ 49 split would do. One would have expected him in those circumstances to seek independent legal advice concerning a transaction in which he was committing himself to investing in excess of N$6 million. More so when, on his own admission, at the time Viljoen conveyed the new advice, Denker had the benefit of contrary advice that for such a transaction to be valid he, as a Namibian, must have the controlling interest. [55] What is apparent from the pleadings, based on the common cause facts and the version of Viljoen, is that the dominant motive on the part of both Denker and Viljoen was to find a way around the strictures of the Land Reform Act. Nowhere in the papers is any suggestion made that the unequal 51/49 shareholding split was for a reason other than to bring the commercial transaction between the two men within the ambit of s 58(1)(a). In other words it was, at its core, an artificial arrangement unrelated to the actual (equal) contributions made by them for the purchase of farm Ameib. [56] It becomes obvious therefore that had it not been for the limitation imposed by s 58(1)(a) on Viljoen, a 50/50 is what the parties intended. The High Court came to that conclusion, and on the evidential material available to it, it is a conclusion which is not
transaction in which he was involved in the purchase of agricultural land in collaboration with foreign nationals. He was aware that there is a law which circumscribes the ownership of land by foreign nationals. That, by itself, must have placed him on guard to seek independent legal advice which, according to him, he did not do. There is no explanation why not, especially if one considers that Viljoen was pursuing a personal interest which Denker should have guarded against. Denker was aware that he had deposed to an affidavit in terms of s 61(1) of the Land Reform Act which similarly should have rung alarm bells and made him more cautious and, crucially, he had the benefit of previous advice that only a 51/ 49 split would do. One would have expected him in those circumstances to seek independent legal advice concerning a transaction in which he was committing himself to investing in excess of N$6 million. More so when, on his own admission, at the time Viljoen conveyed the new advice, Denker had the benefit of contrary advice that for such a transaction to be valid he, as a Namibian, must have the controlling interest. [55] What is apparent from the pleadings, based on the common cause facts and the version of Viljoen, is that the dominant motive on the part of both Denker and Viljoen was to find a way around the strictures of the Land Reform Act. Nowhere in the papers is any suggestion made that the unequal 51/49 shareholding split was for a reason other than to bring the commercial transaction between the two men within the ambit of s 58(1)(a). In other words it was, at its core, an artificial arrangement unrelated to the actual (equal) contributions made by them for the purchase of farm Ameib. [56] It becomes obvious therefore that had it not been for the limitation imposed by s 58(1)(a) on Viljoen, a 50/50 is what the parties intended. The High Court came to that conclusion, and on the evidential material available to it, it is a conclusion which is not
Denker%20v%20Ameib%20Rhino%20Sanctuary%20(Pty)%20Ltd%20(SA%2015-2016)[2017]%20NASC%20(22%20November%202017).docx