The Environmental Case Law Index is a collection of judgments from 10 African countries on topics relating to environmental law, both substantive and procedural. The collection focuses on cases where an environmental interest interacts with governmental or private interests.
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This was an appeal against a judgment of the High Court which ordered the appellants to comply with the terms of a settlement agreement entered into by the parties on 10 November 2006 and later became an order of court. The first appellant was an elected body established in terms of the Regional Councils Act 22 of 1992. The first respondent was a voluntary association representing 104 members out of 110 persons who were lessees of sites in a holiday resort and fishing village of Wlotzkasbaken under the jurisdiction of the first appellant.
The first appellant advertised plots for lease without distinguishing between those already leased to the respondents and other vacant sites, which aggrieved the respondents and was interpreted as a breach of their right of pre-emption. The issues for determination were: the meaning of clause 2 of the 2006 agreement in the context of previous agreements and whether the advertisement was signaling an intention to no longer be bound by the 2006 agreement.
The court deduced that the agreements showed that in each instance the parties agreed to certain rights which would ensure that those existing leaseholders would be able, if so advised, to convert their lease holding into property rights. In their agreement with the appellants, the respondents acquired the right to have all the plots sold once the township was proclaimed. Therefore, the intention to lease those plots was a breach of the right of the respondents. Accordingly, the appellants’ appeal was dismissed with costs.
The court considered an urgent application for spoliation orders (common law remedy) against the first to eleventh respondents or alternatively, an eviction order against them.
The thirteenth respondent purchased three farms which were adjacent to land which was incorporated in a communal area falling under the jurisdiction of the first applicant, a traditional authority. These farms were intended to be incorporated into the communal land falling under the applicant’s jurisdiction. The Government of Namibia initiated the process of incorporating these farms into the communal area under the first applicant through a notice published in the Government Gazette pursuant to the provisions of the Communal Land Reform Act 5 of 2002.
The issue facing the court was whether the first to eleventh respondents had the prerogative to occupy the farms with their cattle grazing on them, without authority to do so. The respondents argued that the applicant lacked locus standi (capacity) to bring the application since the land had not yet been incorporated into the communal area by way of notice in the Government Gazette, as required by the act, thus the applicant did not have jurisdiction over the land.
The application for spoliation was refused because the applicant could not show deprivation of possession by reason of the respondents’ occupation which predates its possession and control. Thus, the court found that the respondents could not establish any right to be on the farms.
The eviction order was granted with costs.
The matter focused on the lawfulness of the removal of fencing surrounding land for agricultural purposes in a communal area.
The respondent, Ohangwena Communal Board, established under s 2 of the Communal Land Reform Act 5 of 2002 removed fencing erected by the applicant, around a tract of agricultural land in a communal area, which the applicant alleged had been duly allocated to him in 1986.
The applicant approached the High Court on an urgent basis for an interdict to restrain the board from removing the fencing surrounding the grazing farm and from disposing of the fencing material which had already been removed.
The applicant maintained that in terms of s 18(b) read with s 28(2)(b) and 28(3) of the act, he is entitled to retain the fences which he had erected on and around the farm. The court found that the applicant had erected the perimeter fence prior to the coming into force of the Act and his intention to apply for authorisation for the retention of the perimeter fence, meant that the removal of the fence by the respondent was unlawful and in conflict with the act.
Given the entitlement to retain a fence if the statutory requisites in s 28(80) are met, it would be unlawful for boards to remove such fencing where applicants intend to make such application prior to the expiration of the period set by the Minister pursuant to s 18.
The interdictory relief was granted.
The plaintiff’s claim was for judgment against the defendants for rental money received from the 3rd to 8th defendant from leasing part of plaintiff's land. The plaintiff also claimed compensation for loss of land as per art. 16(2) of the Namibian Constitution.
The applicant argued that she acquired a customary land right in respect of riparian land that was designated as communal land by a representative of the Mafwe Traditional Authority, after her father’s death in 2001.
The land became state land after it was declared a township in 1995 and was thus transferred to the Katima Mulilo Town Council.
The defendants argued that the local authority owned the land and the plaintiff had no right thereof. The court held that ownership of the land vested in the local authority as per the Local Authorities Act of 1992. The court applied s. 15(2) of the Communal Land Reform Act of 2002 as read with Section 3 of the Local Authorities Act of 1992 and held that the land ceased to be customary land when the town council became the owner in 1995.
The court noted as an obiter (by the way), that the claim for compensation should have been made against the state for taking possession of the community land not the Local Authority.
Accordingly, the claim was dismissed with costs.
In this case, the applicants sought to enforce the decision of the Royal House of Chief Kambazembi (a traditional authority), that allocated communal land to them.
Following the continued occupation of the three square kilometres of the land by the first and second respondents, the applicants decided to enforce the decision by the traditional authority in the court.
The court analysing s. 24-26 of the Communal Land Reform Act, Act 5 of 2002 held that the traditional authority had the power to allocate customary land rights. However, upon the allocation of a customary land right, the applicant was required to notify the land board for registration of the land. The court observed that the applicant failed to do so and thus failed to establish a right that was capable of enforcement by the court.
Accordingly, the application was dismissed, and the applicants were directed to pay costs of the first and second respondents jointly and severally.
This was an appeal against a decision of the High Court to dismiss the appellant’s claim for loss of occupation of communal land. Her second claim was that the land was unlawfully expropriated without compensation by the respondents.
The court determined whether or not the appellant had acquired a valid customary law tenure right in the land in dispute and whether this right was unlawfully interfered with. Further, whether any liability attached to the council arising from its interference with that right.
The first respondent (“the council”), contended that the land belonged to it and had ceased to be communal land thus extinguishing communal land tenure. The court found that the appellant acquired and held a customary land tenure right and the state’s succession to the communal land did not extinguish communal land tenure but the state simply held the land in trust for the affected communities.
The court established that the Constitution guaranteed the enforcement of customary land rights. The court therefore, concluded that the appellant had an exclusive right to the use and occupation of the land in dispute; and that the right attached to the land even after its proclamation as town land.
Accordingly, they court upheld the appeal with costs in favour of the appellant. The matter was remitted to the High Court for the adjudication of the appellant’s claim of unjust enrichment and compensation.
Customary Law – Communal Land – Communal land rights – Power to evict a leaseholder from a communal land – Whether the Communal Land Reform Act, 2002 empowers a leaseholder to cancel a sub-lease and evict a sub lessee from a communal land area.