Legal Assistance Centre-Namibia

1. Lotta Frans v Inke Paschke and Three Others
This case involves the common law provisions which exclude children born out of wedlock from inheriting intestate from their fathers. Lotta’s father died in 1991 and his estate was finalised in 1993, with his sister inheriting everything (two farms and lots of cash). The father was not married, but he had two children, Lotta and Hendison.

When Lotta and his brother consulted the LAC in January 2005, Hendison’s case already prescribed by then – him being an adult then. Lotta only was only 21 then and turned 22 later in the year. Summons was issued for his share of the estate (as if the common law did not exist) and for a declaratory that the common law be declared unconstitutional (the Children’s Status Act ultimately dealt with that provision).

Rights to be asserted:
Right to equality
Right to dignity
Right to property
Children’s rights to be cared for by both their parents

2. Jomoson Kamho and Three Others v Tekla Kamho
This is a similar case as that of Lotta Frans. Fortunately, the estate of the father, Mr Daniel Kamho has not been finalised yet. The LAC obtained an interdict against the widow (i.e. the step mother of the LAC's four clients, who are all children born of wedlock of the deceased father) not to dispose of the property pending the finalisation of the estate.

The executor informed the LAC that the clients will not inherit due to the provisions of the common law on children born out of wedlock. In the interim, the LAC issued summons against the step mother. However, she has since registered the estate with the Master of the High Court. The LAC will object to the Liquidation and Distribution Account when it is lodged.

Rights to be asserted:
Right to equality
Right to dignity
Right to property
Children’s rights to be cared for by both their parents

3. Selma Kamati v Estate of Andreas Nekwaya
This is also a similar matter, but much more complicated in terms of the logistics of finding out what happened to the assets of the deceased father. The LAC's client is the mother of two minor children (ages 12 and 14), and the biological father is Andreas Nekwaya. When Andreas died in 2000, his younger brother, Martin Nekwaya was appointed by the Magistrate of Oshakati as the executor, and he then went on a spree to squander the assets of the estate. He then also died, and his estate is now registered with the Master of the High Court.

The LAC has lodged an objection against the Liquidation and Distribution Account as the client’s children have a claim against the estate of Martin for the misappropriation of the estate of the their father.

The problem is that the LAC is not sure what the value was of the estate of Andreas (our client’s children’s father), but the estate of Martin is now N$5 million. Martin was apparently a poor man at the time Andreas died. The LAC has an incomplete list of assets, such as an aircraft, 3 Mercedes Benzes, a number of 4x4s, several shops, etc.

Rights to be asserted:
Right to equality
Right to dignity
Right to property
Children’s rights to be cared for by both their parents

4. Khwe Traditional Authority v Government of Namibia
This case concerns the application of the Khwe Traditional Authority for recognition under the Traditional Authority Act. The Government has steadfastly refused to have the Khwe recognised as a community separate from the Hambukushu in Kavango. The LAC has written several letters to the Government and they instituted a Commission of Inquiry where we made presentation on our clients’ claim.

To date, the LAC has not received any communication on the outcome of the Commission of Inquiry. In any event, we are going to Court with this matter.

The Khwe is part of the larger San community. Some Government officials have said that the San cannot be recognised as they are slaves of the neighbouring Hambukushu community.

The recognition as a Traditional Authority will give the community some form of land rights – or at least a say how their communal lands will be used. The Government has said that they can apply for land rights from the Hambukushu if they need any land (even their own land).

Rights to be asserted:
Right to culture and tradition
Right to equality
Right to dignity
Right to property (land)

5. Kaalina E. v Nahaboth Ekandjo and Two Others
Kaalina is HIV positive. She is married and has children, one whom is also HIV positive. Because of her HIV status, her husband secretly and fraudulently sold their house to his brother, who then evicted Kaalina and her children. The LAC has brought an application to have the sale of the house declared illegal and invalid. The application has been served and the husband and the brother have instructed a lawyer to oppose the application, but the LAC is yet to see their answering affidavits, which are now due.

The LAC anticipates that they will base their arguments on the assertion that our client and her husband are married out of community of property due to the provisions of section 17(6) the Native Administration Proclamation of 1928, which states that when two black people get married in the area north of the Police Zone, the marriage will be out of community of property.

We will then ask that that section be declared unconstitutional and that the marriage, which still subsists, be accorded the status of that of in community of property.

Rights to be asserted:
Right to equality
Right to dignity
Right to property (housing)
Right to family
Right to equal status in marriage
Children’s rights to care by parents
Children’s rights to education
Children’s rights to health

6. Jerry Mameja v Minister of Home Affairs
Jerry came with his parents to Namibia from South Africa when he was 4-years-old in 1972. He finished his school career here and then went on to study at UNAM where he was an A student. He has lived all his life in Namibia, save for two short periods of two weeks at a time when he had to attend classes at the University of Stellenbosch where he did his MBA degree.

He was arrested at the border between Namibia and South Africa as an illegal immigrant. The LAC brought an application for his release, which was successful. We then brought another application for a declaratory order on his status – we argue that his case is similar as that of Charles Swart v the Minister of Home Affairs as all South Africans who entered the then South West Africa before 1 April 1986 did not need to have any permit to do so (remember that Namibia was really just a province of South Africa), and the Namibian Immigration Control Act recognised that situation.

In any event, Jerry got married to his love of his life in the interim, and the application was then removed from the roll as it would have been an academic matter, which was understood to be the case with the Government Attorneys. His wife is a Namibian citizen and he has therefore domicile. And his has now applied for citizenship. Not so says the Ministry of Home Affairs – our client was apparently illegal in the country at the time he got married and he cannot now apply for Namibian citizenship. So it is back to court. In her undying love and support for her husband, she has joined in the High Court application.

Rights to be asserted:
Right to equality
Right to dignity
Right to family
Right to leave and enter Namibia
Right to reside in Namibia
Right to association (such as a marriage)

7. Dereje Getachew Demmse v Minister of Home Affairs
This is a fairly similar case as that of Jerry Mameja. The client, Dereje is a refugee from Ethiopia. He got his refugee status in South Africa, but came to Namibia where he met his future wife. He then got arrested as an illegal immigrant and detained for 4 months without trial. We got him out with an urgent application and then issued summons in the High Court for the unlawful arrest and detention.

The case centres on the argument that as a foreign spouse married to a Namibian he did not need to have a permit to be lawfully in the country as he is domicile here (section 2 and 22 of the Immigration Control Act). The Government were arguing that since he was illegal in the country, his marriage will not safe him.

The case was successful in the High Court and the Minister of Home Affairs appealed to the Supreme Court. The case was heard in the Supreme Court on 2 April 2007 and we still await judgment.

Rights to be asserted:
Right to equality
Right to dignity
Right to family
Right to leave and enter Namibia
Right to reside in Namibia
Right to association (such as a marriage)

Omafo Villagers v Helao Nafidi Town Council and Another
The Helao Nafidi Town Council allocated a large piece of land to a private company, Northland Development Project Ltd for the purposes of building “Namibia’s largest shopping centre and casino, with an 18-hole golf course, 1000 offices… etc”

The only problem is that the piece of land is inhabited by about 27 families, with their livestock, grazing areas and mahangu fields, and they are not moving. That community has instructed us to bring a review case against the Municipality, which the following grounds are part of the application:

The land actually belongs to the community and not to the Town Council
There was no environmental impact assessment done
The community was not consulted
There appears to be conflicts of interest and some of the councillors on the Town Council are actually shareholders of the private company that got the land
There was no adherence to the tender board regulations in terms of the Local Authorities Act
The construction of the shopping centre and casino will adversely affect the culture of the community

Rights to be asserted:
Right to culture and tradition
Right to environment
Right to administrative justice
Right to property (land)

Hafeni Shooya v City of Windhoek
Hafeni is a young man who everyday would stand, along with others, next to the traffic lights in the city looking for a day-job for some income. The City Police then descended on them, wanting to arrest the group. All the men then ran away in all sort of directions. There was a previous occasion when some of them were arrested for not standing at the right spot designated by the City Council.

The police then pursued some of the fleeing men and cornered the client. One police officer then shot him in the leg. His femur was shattered to the extent that the doctors amputated his right leg.

Rights to be asserted:
Right to dignity
Right to liberty
Right to life
Right to equality
Right to fair trial