Cases
LEAD provides the following services:
- Advice on Housing Rights and Eviction Matters
- Advice on Inheritance Rights and Wills
- Establishes community based trusts for emerging NGOs
- The writing and reviewing of Conservancy and Community Based Organisation Constitutions and Joint Adventure Agreements
- Legal representation of clients in court
- Legal opinions
Examples of cases:
Inheritance Rights
A LEAD project lawyer defended a woman’s land right case in which our client lived with a man since 1993 as a result of a customary union. Our client was then involved in a car accident and admitted to the hospital’s ICU for three months, where after the motor vehicle accident fund paid her N$230,000.
She used the money to pay off the house, which she jointly inhabited with the husband. She settled all the debts of the husband, from personal loans to legal matters. She bought an Isuzu bakkie which was driven by the husband. In less than four days, the balance on the account was than N$1000.00. During December 2004 the husband overturned with the car and died on the spot and the vehicle was written off. After the burial, one of the sons of the deceased was then appointed as executor, and at a family meeting, it was decided that our client should retain the house since it is the only asset in the estate. This was based on the fact that our client made substantial payments to the joint estate and that she suffered damages as a result of the car accident.
A second woman then came out after his death and claimed she was married to the deceased in 1980. At that time, the second woman was appointed as executor and then issued a summons for the eviction of our client. At the same time, the second woman used the letter of executorship to transfer the house to her. LEAD is now defending the first woman and have filed the necessary papers.
Property Grabbing
Since 2004, our clients operated a mine at Henties Bay known as Cape Cross Salt. After the employers abandoned the mine, our clients were left with a huge debt and the community settled the outstanding amount.
Continuing to mine, our clients were approached by a group of men, and asked how they could help our clients better mine sale. At that time, a front-end loader was promised. A day after that our clients were approached and asked to sign a delivery form for the front-end loader and informed that the loader was somewhere between Karibib and Usakos. After signing, two days passed and no tractor arrived, and the two gentlemen were not reachable.
Our clients then approached someone who is proficient in English who read the delivery note. Unbeknownst to them, the clients signed a transfer of 96 per cent of the shares to the said gentlemen. Our clients were then informed that the “new owners” would start mining the site.
The gates were then locked and our clients were locked out. A purported agreement drafted on Ministry of Mines and Energy was denied by the Ministry. It ordered the operation to desist from any further activities at the mine. In the meantime, some of the equipment at the mine was sold off. Our clients’ fear that everything will be sold and that reports to the police proved futile.
We are preparing an urgent application in the matter.
Children’s Rights & Inheritance
Our client’s mother passed away in 2003. At a family meeting, the uncle was requested to take over the house of the children until they are financially stable to pay NHE. He also received monthly payments on behalf of two of the children from GIPF while both children were not residing with him.
The children now want their house back. The issue is that he does not want to give it back; he claims that the children have to pay him back certain amounts. LEAD is arguing that his wife and children were living in the house, so the amounts paid by him to NHE is actually occupational rent. He now locked the house and closed the water and left for Rundu. The house is registered in his name. LEAD has talked to the uncle’s lawyer and instructed the man to open the house and water. An outcome is pending.
Customary Land Rights Matters
Omatando Villagers Committee v Ongwediva Town Council
This was the first case in a series of strategic litigation culminating in the finding made by the appeal court in the Kashela case. Omatando Villages 1, 2 and 3 were incorporated into the Ongwediva Local Authority Area. The Ongwediva Town Council Demanded that the villagers vacate the area because the land was townlands and therefore was not subject to any customary rights. During the course of a week, the town council pursued a strategy to demolish houses and other buildings. The LAC acted on behalf of a loose association of villagers and demanded an undertaking not to proceed with demolition without a valid court order. No undertaking was forthcoming and an urgent interdict was moved. The LAC argued that the rights the villagers had were to be found as existing customary rights under Section 28 of the Communal Land Reform Act and as such could not be extinguished without just compensation – either in terms of article 16 of the Constitution or section 16 of the Communal Land Reform Act. The undertaking was presented at court and judgement was nevertheless given in favoured the clients on the issue of costs, the court citing the probability of the defence succeeding despite that the area of the villages was incorporated into the local authority area.
Kashela case
Our client brought an application alleging that land held by the Katima Mulilo Town Council was disposed of without just compensation to our client who alleged she held customary rights giving her exclusive and beneficial use rights over the land. The client was unsuccessful in the High Court, in which LAC presented similar argument to the Omatando matter. Thereafter an appeal was lodged with the Supreme Court. The matter was argued in the Supreme Court in October 2018 on the basis that Schedule 5(3) of the Constitution established and guaranteed the tenure rights of communal land occupiers – that the clients right detracted from the dominion of the state regarding communal land. Judgment in the client’s favour was handed down in November. What is noteworthy in this judgment is the Supreme Court’s confirmation that customary tenure rights are indeed protected under the Namibian Constitution but are not necessarily vindicated under the property clauses such as article 16. Rather it found that the right had been established and the court may determine the appropriate remedy in common law. It found that the customary right survived transfer from South Africa to Namibia on Independence, that it survived the transfer of communal land to state title and that it survived the declaration of the establishment of the Town Council in terms of the Local Authorities Act. The remaining issues have been referred back to the High Court. The remaining issues for determination include the quantification of damages which was referred to private lawyers. However, client being dissatisfied with a settlement offer, sought to pursue the issue of quantum of damages in court and briefed other legal Practioners of their choice.
Richard Mahinda Mamili
Our client was in a similar position as the preceding case and the matter concerned the same Town Council. Mr Mamili acquired land in 1971 in terms of the customary norms and prevailing laws at the time. Being the former chief of the Mafwe, Mr Mamili testified on behalf of Mrs Kashela regarding her customary rights which he had initially granted to her deceased father and endorsed it as her customary inheritance right.
The Katima Mulilo Town Council responded by selling his land in extent some 30 hectares, to a third party without any consultation with Mr Mamili.
LAC issued a summons in which he claimed declaratory relief and an order to set aside the sale and transfer of the land he held under customary law and for which he was not compensated on sale by the town council. The order included a declaration to the extent that Mr Mamili holds real rights to the land as an “owner” and at least insofar as the local authorities act provides for limited real right holders to be deemed owners.
However, after the Supreme Court judgement was delivered the Town Council Changed tack and approached clients directly, persuading them to sign an agreement in terms of which the plaintiff would be compensated by the payment of money and an alternate area of land within the local authority area to be registered in his name.
Thereafter the matter was settled without the point of ownership being argued. However, in another judgement, not dealt with by the LAC which followed, it was held that the holder of the customary right is entitled to the ownership thereof when there is no expropriation against compensation in the public interest.
These three cases demonstrate the steps taken to first establish that rights may exist providing a defence against eviction and demolition in the Omatando case, that the nature of the rights are exclusive beneficial tenure rights and guaranteed under the Constitution, that they customary rights are similar and equal to Roman Dutch ownership rights to protect tenure and related constitutional rights of the occupier, and finally culminating in the holding that the ownership right must be conferred on the holder in the local authority area.
Na#Jaqna Conservancy
For many years disputes have been erupting between the conservancy and the traditional authority head of the !Kung people who are the members and committee of the Na#Jaqna Conservancy. The conservancy is some to some 1500 residents who enjoy a traditional way of life by subsisting mainly off the natural resources of the land which they conserve. The chief however sees the conservancy as an impediment to her notion of development for the area and as a threat to her dictatorial approach to her administrative duties. The net result has been many years of fruitless litigation, in which the judgement of the court cannot be effective because the state refuses or neglects to implement it. The main cause of grievance is that the traditional authority has done everything in her power to subvert the aims and objectives of the conservancy by authorising illegal grazing, settlement fencing, private farms and ad hoc land rights without consultation with the conservancy. Ultimately the conservancy has been placed in a position to remove the chief on grounds of maladministration and then seek various orders to restore the conservancy to its members. The application of the various laws such as the Traditional Authorities Act, Communal Land Reform Act, Forest Act, Nature Conservation Ordinance are clear that the conservancy has certain rights and obligation over the communal land area on which the conservancy is established. These rights include rights of customary tenure and general rights to consumptive and non-consumptive use of the natural resources, including eco-tourism and professional hunting. These rights give cause to interdict the state insofar as the Chief is an organ and representative of the state. The case being prepared thus examines the nature of the competing authorities, powers and functions of various organs of state and the relationship between traditional authorities and the conservancy. It seeks to assert collective land use rights against the state. It asserts both customary and statutory legal rights and guided by constitutional rights to equality, dignity, freedom of association and to freely partake in political activity and to preserve the right to freely engage in economic activities to which they have subscribed through the conservancy.
Nyae Nyae
The antithesis of the Na#Jaqna Conservancy is the Nyae Nyae Conservancy. The relationship between the traditional authority and the conservancy are in harmony and seek to achieve the same ends, to uplift the Ju/’hoansi San Community by the proper management and consensual decision making regarding the communal land generally and the conservancy where benefits accrue to all. The well managed communal land and conservancy however has proved to be a draw card to opportunistic outsiders from Gam who drive herds of cattle onto the conservancy and take up residence, begin fencing, over grazing, disobeying customary norms and laws of the conservancy and generally being a nuisance. The struggle to evict these people has been exacerbated by political interventions by various regional councilors and other government officials the collective consensus of whom do not represent the Ju/’hoansi interests. Rather the solution proposed has always been to compel the chief to give up land to make way for the unlawful settlers who enrich themselves at the expense of the local communities and with the support of the local politicians and decision makers.
The chief and the conservancy instructed LAC to assist in the eviction of certain of these people. This is made possible by the chief’s powers to evict communal land occupiers in terms of the Communal Land Reform Act. The matter is argued and judgement is pending delivery.
Kamunguma
Client approached the LAC as a matter of urgency to intervene in a case where the chief sought to evict him from communal land he occupied. Client defended the matter on the basis that he had properly applied for the land right to be ratified, that the chief’s traditional authority had consented to the right, that the land board already resolved to ratify the right after no objections pursuant to the statutory notice had been filed. The plaintiff chief claims that client has no right to lawfully occupy because (a) he cancelled it (without a hearing of any sort) (b) that the size of the land to be ratified still has to be authorised by the Minister of Lands because it is in excess of the maximum that the Land Board may ratify unassisted by the Minister of Land Reform. Client’s case is that the ratification is subject to the Minister’s approval failing which the land board will determine the size, the customary right to occupy being ratified and the land board has acted functus officio and therefore the chief is estopped from evicting the defendant.
The matter awaits a trial date.
NguaJakes V Minister of Land Reform and Others
Clients are aggrieved because they were notified to make submission in argument to an appeal tribunal established in terms of Section 39 of the Communal Land Reform Act concerning a matter of an application for land rights and a fence that was rejected by the Communal Land Board, but instead were confronted by a trial and inspections in loco and new fact finding by the tribunal members. The appeal tribunal made its decision and an order that exceeds the bounds of its statutory power under the act. It is alleged by clients that there is thus perception of bias when the tribunal members entered the arena and retried the matter being appealed against. The main issue for determination is to determine the extent of the appeal tribunal powers with particular reference to Section 39(6). This involves the interpretation of the statute. The hearing date is not yet set.
More cases by the LAC over the years here.
