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Contents
Introduction............................................................................................................................................ 2
Issues on appeal .................................................................................................................................. 2
Further Grounds of Appeal are contingent on the determination of the Main Issues above. ... 3
GROUNDS OF APPEAL ..................................................................................................................... 3
THE APPELLANT’S ARGUMENT ..................................................................................................... 6
Context of customary tenure and occupation rights of the Appellant....................................... 6
The Customary Land Use and Tenure Right Held by Appellant .............................................. 6
Communal Land as Trust property ................................................................................................ 7
Article 10 of the Namibian Constitution and Equality of Customary Tenure Security. .......... 9
Inequality and customary tenure insecurity ................................................................................ 10
Roman Dutch property and tenure rights versus Customary Law .......................................... 11
Equality of Appellant’s Customary Land Tenure Rights in Namibian Law ............................ 12
Article 100 and Schedule 5 of the Constitution of Namibia ..................................................... 13
The Application of Article 100 of the Constitution of Namibia. ................................................ 14
Constitutional objective ................................................................................................................. 15
Article 16 Property rights over communal land .......................................................................... 16
Application of Article 16 of the Constitution of Namibia ........................................................... 17
Tenuous Tenure ............................................................................................................................. 20
Section 3 of the Local Authorities Act ......................................................................................... 21
Section 1 “owner” in terms of the Local Authorities Act ........................................................... 23
Undetermined issue ........................................................................................................................... 25
The Certificate of State Title ......................................................................................................... 27
Application of Communal Land Reform Act ............................................................................... 31
Appellant’s reliance on Section 16(2) of the Communal Land Reform Act is not absolute.32
CONCLUSION .................................................................................................................................... 33
Remaining issues for determination or referral to court a quo for consideration as may be
expedient: ............................................................................................................................................ 36
Liability: ............................................................................................................................................ 36
Prescription ..................................................................................................................................... 36
Costs ................................................................................................................................................ 37
ORDER: ............................................................................................................................................... 37
2
Introduction
1. The parties and the facts of this case are described by his Lordship Hon Miller
AJ in the judgement of the court a quo1 and are common cause for purposes of
this Appeal2.
2. Of critical importance to the Appellant’s appeal is that the application of the law
with due regard to the Constitution of Namibia and the Namibian Statutes
demonstrates that national laws support the land rights it has delivered to the
Appellant3.
3. The legal norms operate to sustain these to provide her with adequate security
of tenure, and a real right to the land, equal in legal stature as any other real
Issues on appeal
4. The main issue arising in this appeal is whether the asserted customary law
of State title5 or
1
Record 1/116-119)
2
See also Record 1/5Written Statement of Facts.
3
N#Jaqna Conservancy Committee v Min of Lands and Resettlement & Others (A276-2016) NAHCMD 250.
4
"real right" includes any right which becomes a real right upon registration; "registered" means registered in
a deeds registry Deeds Registries Act 47 of 1937 - Definitions Section 102.
5
Record 1/123/10
3
(b) by the declaration of the Katima Mulilo local authority and transfer of the
land held under certificate of state title by grant6 to the Katima Mulilo Town
have the effect of terminating customary law land use and tenure rights without
, having regard to only (a) and ( b) above, just compensation to right holders in
Further Grounds of Appeal are contingent on the determination of the Main Issues
above.
6. Should the Appellant’s appeal against the finding of the Court a quo be upheld
- which holds that her use rights were extinguished by the events at (a), (b) and
possibly (c) at paragraph 4 above - the remainder of the findings of the court a
quo fall to be determined either as further grounds of appeal against the whole
prescription.
GROUNDS OF APPEAL
8. The main grounds of the Appellant’s appeal lie against the court a quo’s findings
in law, more particularly, that the court a quo erred when it held that:
6
Deeds Registries Act Section 18(1) and Sections 18(3) and 18 (5) deals with transferability of state land.
4
(a) Article 100 of the Namibian Constitution prescribes the mode of acquisition
1008.
(This proposition of law appears to hold that Communal Land became the
absolute and sole property of the State at independence unfettered by any other
(i) a transfer of communal land to the state held under certificate of state
title in 19919;
(ii) and the declaration of the Katima Mulilo Town Council, with the
(iii) and that the inability of the traditional leader to continue to exercise
summarily, and irrespective if they existed or not,12 would have terminated the
(c) that, with particular reference to Section 3(3) of the Local Authorities Act,
7
At line 19 and 20 (Record 1/ 120
8
Record 1/120/ 10 ( paragraph 15 of the judgement of the Court a quo).
9
Record 1/123/6 (paragraph 25 of Judgement of the Court a quo)
10
See argument Regarding S28 Communal Land Reform Act below
11
Record 1/123/16
12
Record 1/123/20 (Paragraph 27 of the judgement of the Court a quo)
13
Record 1/123/10 (Paragraph 26 of the judgement of the Court a quo)
5
(d) that the state and/or the local authority could have validly acquired the land
attached to the land itself, and with particular reference to the Appellant,
9. The further grounds of appeal against the findings of the Court a quo, namely:
(e) that the Appellant does not have a claim against the town council for the
(f) That the Applicant’s claim lies against the state and not the Town Council17;
(g) or otherwise that her claims do not or may not constitute “just compensation”
(i) That she should pay all or any of the Defendants’ costs.
are contingent on whether or not the main grounds of appeal are upheld.
10. A further undetermined issue of both a legal and factual nature arises as to
what event actually cancelled the appellant’s rights is dealt with elsewhere as
paragraphs 103-111 below and as to whether or not the Appellant held any
rights at all.
14
Record 1/122/20 (Paragraph 22 of the judgement)
15
Article 16 (2) of the Namibian Constitution with reference to Section 16(2) Communal Land Reform Act
16
Record 1/123/20
17
Record 1/123/27 (Paragraph 28 of the judgement).
6
11. The Appellant accordingly appeals the whole of the judgement and the
uncertainty relating to the finding referred to above will be dealt with more fully
below.
12. The Appellant submits that the origin and nature of the tenure rights held by the
13. It is under these circumstances below that the Appellant’s customary law tenure
rights still occupy a liminal world in the interstices of the common law,
14. The South West African Native Affairs Administration Act, 56 of 1954, set aside
land reserved for the sole use and occupation of natives and vested this in the
15. The land that the Appellant occupies was set aside under that Act for the sole
16. The land on which her father was first allocated customary use rights in 1985
was thus property of which the ownership or control immediately prior to the
18
In 1973 the Development of Self Government for Native Nations in South West Africa Act, no 54 of 1968 was
amended to describe the Eastern Caprivi as “the area defined in the Schedule to Government Notice 2429 of
1972 (the magisterial district of Eastern Caprivi).
7
17. In South Africa and South West Africa the trust relationship over native lands
was statutorily created in terms of the South African Development and Trust
Act of 1936 and in the South West African Native Affairs Administration Act,
1954.
Proclamations of 198019, identical laws that specifically put native land in trust
20. The Appellant acquired the customary tenure and use rights subject to this trus,t
after her father died, by virtue of the nature of the customary laws of succession
of the right20.which modus is similar to the method set out under Section 26 of
21. As such the trust property was vested in or became under the control of the
22. The Appellant has exercised her customary rights continuously and
undisturbed, until the Katima Mulilo Town Council required and appropriated a
19
Caprivian Representative Authority Proclamation AG 29/1980
20
Record 1/117/30 (paragraph 7 of the judgement)
21
in that the Chief does not have to exercise any further discretion when the holder dies. The right is re-
allocated automatically and “forthwith” transfers to the spouse or “such child” (if there is more than one) the
original tenure right - which child the chief determines according to customary law, which is normally family
consensus unless a dispute arises.
22
Schedule 5(1) Namibian Constitution.
8
portion of the land, presumably, in the performance of its functions and duties
23. She was legitimately exercising her land use rights because any transfer of the
Namibian Constitution.
24. The customary use and occupational rights conferred on her father in 1985 23,
and then accruing to herself on his death in 2001 required no further legal steps
or interventions having to be taken to retain that right after it was granted by the
25. The customary land use rights first conferred on her father, as the beneficial
holder at that time, by the Chief and Mafwe Tribal Administration in 1985, was
in terms of the prevailing customary laws and norms of the Mafwe and remain
which is not communal land anymore but vests in the local authority subject to
26. It follows inasmuch as that these rights constitute an exclusive use right to
occupy the land. When the local authority requires the land specifically for
land use rights to unencumber the land free and unburdened by her customary
23
Record 1/52 ( paragraph 1.3 in the Written Statement of Facts).
24
Record 1/117/20 (paragraphs 16 and 17 of the judgement)
25
Article 16(2) Namibian Constitution
9
27. Article 10 supports the proposition that all persons shall be equal before the
without just compensation for the loss of those rights for the benefit of the public
interest, as would be the case where such a tenure right is registered in the
deeds registry.
29. The South African Constitutional Court’s dictum in DVB Behuising26 on the
“One of the clear purposes, and indeed one of the most devastating effects of
apartheid policy, was to deny African people access to land. Where access to
land was afforded, tenure was generally precarious. It is not surprising then
30. Articles 98, 23(2) article 10 and the preamble of the Namibian Constitution
reveals that the deep injustices and effects and vestiges of apartheid are
31. It is undeniable that the Namibian government and national legislature is placed
policy and legislative means for the redress of the injustices and unfair
26
Western Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd v North West Provincial
Government and Another 2001 (1) SA 500 (CC) (2000 (4) BCLR 347):
10
tenure security.
32. It is a well-known fact that much of the native land in Namibia was generally
also respectfully submitted that there is no need to cite South African or British
colonial law for the proposition that the Crown 'owns' native land28.
33. It is trite that “real rights” to immovable property in the form of ownership under
Roman Dutch Common Law do not have the same application to property held
under and in terms of the principles of African Customary Law as a result of the
34. Customary land tenure refers to the systems that most rural black African
35. Unlike introduced landholding regimes, the norms of customary tenure derive
from and are sustained by the community itself rather than the state or state
36. Although the rules which a particular local community follows are known as
27
See N#Jaqna Conservancy Committee v Minister of Lands and Resettlement and Others (A276-
2016)NAHCMD 250 at paragraphs 10-18 and the other cases cited at fn 3 therein.
28
Also the 1903 Crown Land Disposal Ordinance of the Transvaal was amended by the Crown Land Disposal
Proclamation, 13 of 1920 and section 12 of the amended Ordinance empowered the administrator to reserve
Crown Land, inter alia, for the “use and benefit of aboriginal natives….”
29
Paragraphs 42-47 Adcock v Mbambo (A 87/2010 [2012]NAHCMD 35 (24 October 2012)
11
37. Customary land tenure is as much a social system as a legal code. Roman
38. One of the most infamous cases in the common-law with judicial regard to
Some tribes are so low in the scale of social organization that their usage's and
conceptions of rights and duties are not to be reconciled with the institutions or
the legal ideas of civilized society. Such a gulf cannot be bridged. It would be
idle to impute to such people some shadow of the rights known to our law and
know them”.
39. This judgement was delivered in the same year that the Crown Land Disposal
which was, inter alia, in turn, characterised by its policies of large-scale land
descent, or natural or ethnic origin which has the purpose or effect of nullifying
41. It is a notorious fact that one of the clear purposes, and indeed one of the most
devastating effects of apartheid land policy, was to deny African people access
to land and security of tenure and falls within the ambit of that definition.
42. Where access to land was afforded, tenure was generally precarious.
43. It is not surprising then that the Namibian Constitution recognises this deep
injustice.
45. With due regard to Article 10 of the Namibian Constitution, the Appellant
accordingly proposes that the customary law land use and tenure rights she
asserts are equal to any other property rights in Namibian law and are also in
30
International Convention on the Elimination of All Forms of Racial Discrimination Adopted and opened for
signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965 entry into force 4
January 1969, in accordance with Article 19
13
the nature of limited real rights over the land she occupies, portion of which has
been arrogated without just compensation by the Katima Mulilo Town Council.
46. It is respectfully submitted that the application of Article 100 to the facts in the
our society.
47. The South African Constitutional Court stated in Port Elizabeth Municipality v
context with reference to this Appeal, given the similar legal history under
“It is not only the dignity of the poor that is assailed when homeless people are
driven from pillar to post in a desperate quest for a place where they and their
families can rest their heads. Our society as a whole is demeaned when state
action intensifies rather than mitigates their marginalisation. The integrity of the
rights based vision of the Constitution is punctured when state action augments
rather than reduces the claims of the desperately poor to a decent existence.”32
48. It is submitted that this South African case supports the proposition that a clear
presumption exists in favour of the Appellant that the state and the Constitution
31
See the unreported judgment Omatando Villagers Case A26/12 – the extreme vulnerability of insecure
tenure for people in urban areas under customary tenure is exacerbated by town councils forced removals
without court orders..
32
2005 (1) SA 217 (CC) (“PE Municipality”) at para 18.
14
of Namibia similarly does not endorse the arbitrary deprivation of tenure rights
49. The Application of Article 100 of the Constitution of Namibia does not concern
itself with the manner, nature and conditions of the “ownership” or the vesting
(GRN) at independence.
communal lands when it is read in isolation of Schedule 5 and without the “spirit
and purport” of the Constitution of Namibia. The whole provision only applies
51. The interrelationship between Art 100 and Schedule 5 it is submitted provides
the reason for the error in law regarding the ownership of communal land by
the State made 33by the court a quo and discussed further below.
52. Schedule 5 is intended to specify which South African state property vests in
the Government of Namibia, the provision in Art 100 providing for state
ownership of land is redundant unless there existed some category of land not
'under the ownership or control' of the Government of South Africa that was 'not
33
Record 1/120/10 (Paragraph 15 of the judgement)
15
Constitutional objective
53. It is respectfully submitted instead that the correct position in law regarding the
relationship between Art 100 and Schedule 5 is that the land ownership
provision of Art 100 must be interpreted consistently with the much more
54. Schedule 5's broad definition of property in para (2), 'movable and immovable
property, whether corporeal or incorporeal, “... and shall include any right or
interest therein... “clearly includes land, as well as any right or interest in land
55. Thus, Schedule 5 is drafted to transfer to the Government of Namibia land rights
South Africa.
56. It is not submitted that Schedule 5 is a complete legal definition of the law of
57. Therefore, Schedule 5 can neither define, nor define away communal or any
58. Rather, it defines fully which South African state property 'vests' in the
59. If Article 16 property rights are extended to communal lands34, then they are
'otherwise lawfully owned' and there is no conflict with any of the laws of
60. The term 'lawfully owned' cannot be used in a narrow sense to refer to the
formal requirements of land title that were legally unavailable to black people
under apartheid laws. Indeed, this is the only place the term 'lawfully owned' is
61. It is not used in Article 16 to define property rights, nor in Schedule 5, two
places where property rights are more specifically, and more broadly defined35.
62. Therefore, it would seem that when the Constitution defined property rights,
63. Even if they were not cast in such broad terms through such an interpretation,
it would seem to follow from the abolition of apartheid36 that a narrow apartheid
era 'lawful ownership' definition cannot be the only one incorporated into the
Constitution of Namibia.
34
In terms of the legislation repealed inter alia under Schedule 8 of the Namibian Constitution and the
Communal Land Reform Act.
35
See also article 98 (2) which describes the types of property rights envisaged.
36
See preamble to the Constitution generally and with reference to Kauesa v Minister of Home Affairs and
Others 1994 NR 102 (HC) .
17
65. The natural law and public policy language of the preamble to the
Constitution37, when read in connection with Article 16, protecting the right of
'all persons' to 'acquire, own and dispose of all forms of immovable and
the same way that it protects the free-hold property rights of white people prior
to the Independence of Namibia and before the advent of the Communal Land
66. Article 16 is intended to apply broadly to all forms of property rights, and that
must include 'all' property rights short of free-hold ownership, as well as free-
hold ownership.
is inconsistent with the broad provisions of the Constitution providing for racial
37
Visagie v Government of The Republic Of Namibia And Others 2017 (2) NR 488 (HC) held that provisions of
the Constitution must be read and understood with reference to the Constitution as a whole. The Constitution
was a composite document which in its totality was aimed at achieving the basic aspirations of the drafters
thereof to give effect to the principles expressed in the preamble of the Constitution
3838
Essentially to give effect to Article 21(h) and Article 16.
18
any other form - that policy and legislation is developed addressing the
inequality inherent in the land tenure regimes derived from apartheid laws39.
69. The precise nature of any individual's or tribe's communal property interest
that there exists any property interest at all, no matter what its nature. A
70. The legally defined “white” property rights as rights held under free-hold title,
in the form of communal lands, under various African principles of law, to land
71. Since the Constitution directly recognises this and was created explicitly to end
this discrimination, according to its pre-amble, it must follow that the pre-
existing customary land law under which black people held land communally
undermines the principles that protect existing property rights in Article 16.
39
At article 98
19
73. Property held under customary, traditional, trust, or other legal forms have a
long legal history in Namibia, Southern Africa, the rest of Africa and within
including property interests less or other than real rights of property ownership
75. The primary rule of interpretation of statutes generally is that if the meaning of
the words is clear, it should be put into effect and indeed equated with
76. Adherence to this rule requires that interpreters of the Constitution give full
effect to the plain meaning of the words 'all persons shall have the right to ...
liberal meaning41'.
78. Therefore, it is submitted, the words 'all forms of property' are absolutely clear
79. It follows that the relationship between Art 100 and Schedule 5 is that the land
ownership provision of Art 100 must be interpreted consistently with the much
schedule specifically set out to define what property vests in the state.
40
Principle Immigration Officer v Hawabu 1936 AD 26 at end page 30 and 31.
41
Provisions to be broadly, liberally and purposively interpreted - S v NV 2017 (3) NR 700 (HC)
20
80. To hold otherwise asserts the legal position that the State 'owns42' the
communal lands and could therefore dispossess at will a majority portion of the
81. It is submitted, in the premises, that the Appellant’s customary right of tenure
protection.
Tenuous Tenure
82. However, the court a quo determined that Section 15(2) of the Communal Land
Reform Act read with Section 3 of the Local Authorities Act had the immediate
effect of terminating customary law land use and tenure rights. These simply
“cease to exist”43
83. The court’s reasoning is that because the land is no longer communal land and
because the traditional leader has no more customary (or statutory) jurisdiction
over land matters and cannot as a result exercise any powers over the land, all
84. This finding seems to suggest that so-called “PTO”s in the form of leaseholds
42
Record 1/120/1-12 (at paragraph 15 of the judgement)
43
Record 1/123/10-16 (at paragraph 26 of the judgement)
21
85. Similarly, customary rights registered under the Communal Land Reform Act,
they exist over land declared to form part of the local authority’s townlands.
the Communal Land Reform Act45 and, it is respectfully submitted, ignores the
provisions of Section 3 of the Local Authorities Act which deals, inter alia, with
the vesting of rights and obligations pertaining to the land in the Town Council.
87. Although the declaration of Katima Mulilo Town as a local authority Council in
199546 and incorporation of the land held under certificate of state title into its
local authority area is common cause between the parties.it does not follow that
Section 3 of the Local Authorities Act gives unfettered ownership rights to the
property interests, obligations, charges and rights that may be vested in it.
subsection (1), declared to be, or, in terms of subsection (5), deemed to have
been declared to be, a municipality, town or village, the assets used in relation
to such township or village management area and all rights, liabilities and
44
Record 1/123/10 – at the last sentence of paragraph 26 of the judgement.
45
See section 17 of the Communal Land Reform Act for the overriding purpose of the Act
46
Record 1/119/15 (paragraph 12 of the judgement)
22
obligations connected with such assets shall vest in the municipal council, town
council or village council of such municipality, town or village, as the case may
be, to such extent and as from such date as may be determined by the
89. It must be remembered that the Local Authorities Act came into force on the
31st of August 199247 and the state obtained a certificate of state title in 1991.
The Katima Mulilo Town Council was proclaimed in 1995 when the land
90. The effect of Section 3 of the Local Authorities Act, it is respectfully submitted,
does not have the effect of terminating customary tenure and use rights.
91. Rather the Local Authorities Act implicitly provides for the continuation of such
92. The local authority is accordingly compelled to discharge its obligations by justly
compensating the right holder for the loss of the rights to the exclusive
occupation and beneficial use of that land when the land is required to advance
93. It is precisely these types of rights connected with such assets that are vested
in the town council that gives rise to the obligation and liability to discharge them
lawfully when the land itself is required in the public interest and in the
94. The Minister may not declare a municipality or a town if, in his opinion:
47
Title to the Act
23
(a) It is unable to pay, whether with or without any financial or other assistance by
the Government of Namibia or any regional council, out of its funds its debts
incurred in the exercise and performance of such powers, duties and functions;
(b) to comply, whether with or without any such assistance, with all its other
95. It also follows that the Minister was satisfied that the Katima Mulilo Town Council
could pay for the debts incurred in the performance of its powers, duties and
96. Section 30 (t) provides that the Town Council may, inter alia, acquire any right in
97. Accordingly, it is submitted that the Town Council has the duty and liability to
discharge its obligations towards the Appellant in respect of her customary tenure
and use rights, when the land is required by the Town Council in fulfilment of its
functions and in the public interest. It is only then that the land is “acquired by the
state”, with reference to Article 16(2) of the Communal Land Reform Act.
98. It is further submitted that Section 1 of the Local Authorities Act defines the
48
Section 3(2)(b)(bb) and (cc) of the Local Authorities Act.
49
“ buy, hire or otherwise acquire, with the prior approval of the Minister and subject to such conditions, if
any, as may be determined by him or her, any immovable property or any right in respect of immovable
property for any purpose connected with the powers, duties or functions of such local authority council, or to
so sell, let, hypothecate or otherwise dispose of or encumber any such immovable property;
24
99. "owner" in relation to immovable property, means the person in whose name
[our emphasis]
100. It is therefore submitted that the Appellant is deemed to be an owner for the
purposes of that Act in that she occupies immovable property by virtue of a real
101. Furthermore, that such a limited real right is equally capable of registration as
any other "limited real right" which becomes a real right upon registration in a
deeds registry;
102. In the premises the Appellant submits that the town council was not entitled in
law to aggregate her rights in and to the property she occupies as a “Section 1
50
See Section 16 of the deeds Registries Act : Save as otherwise provided in this Act or in any other law the
ownership of land may be conveyed from one person to another only by means of a deed of transfer executed
or attested by the registrar, and other real rights in land may be conveyed from one person to another only by
means of a deed of cession attested by a notary public and registered by the registrar……] (our underlining)
25
Undetermined issue
103. At paragraph 14 of the judgement of the court a quo, the court a quo was to
determine the issue of whether the Plaintiff validly acquired and still holds
104. It is not clear however, that the court made any finding as to whether the rights
of the Appellant were negated on the registration of state title over the land
formerly held under certificate of state title and subsequently by the death of
her father.
105. In its finding of facts, the court a quo addresses the issue of succession of rights
as follows:
“In terms of the customary laws, the customary right to use and occupy the communal
land would automatically devolve upon a member of the family, primarily based on the
106. This implies that the court has accepted that the evidence53 given by the
witness, Chief Richard Mahinda Mamili, as correct regarding the nature and
51
Record 1/119/30 (paragraph 14 of the judgement)
52
Record 1/117/30 (paragraph 7 of the judgement)
53
Record 1/80/1-13 regarding the nature of the customary right; Record 1/81/15-25 regarding the description
of the land; Record 1/77/20 – line 20 on next page 78 of the Record, regarding the perpetuity of succession of
the right and the acquisition by the Applicant as the remaining surviving daughter and conditions of
cancellation of the land use right under customary law.
54
See the minority judgement of Ngcobo J at paragraphs 148-154 in Bhe and Others V Magistrate, Khayelitsha,
And Others (Commission For Gender Equality As Amicus Curiae); Shibi V Sithole And Others;South African
Human Rights Commission And Another V President Of The Republic Of South Africa And Another 2005 (1) Sa
580 (Cc) where he discusses indigenous customary law and ascertainment.
26
107. However, the Record at 1/106/20-30 reveals that the Court a quo’s prima facie
view that these rights could not have transferred to the Appellant. after the area
was declared as local authority townlands because the chief no longer had
108. At paragraph 28 of its judgement55, the Court a quo also holds that the
compensation would be for the loss of the actual land itself by the State. It is
(a) That compensation would follow for the loss of the tenure and use right
or for the loss of the land over which these rights are exerted by the
market value;
(b) that the state appropriated the Appellant’s father’s tenure rights when
the land was registered under certificate of state title, and that is why the
(c) whether the town council is not liable to compensate the Appellant for its
aggregation of her use rights or land, as the case may be, but that this
109. In applying the law to the facts the finding of the Court a quo, it is respectfully
55
Record 1/123/25 (paragraph 28 of the judgement).
56
Record 1/122/30 [paragraph 24 of the judgement) and also Record 1/77-79, Evidence in chief of Richard
Mamili.
27
certificate of state title No 4789/1991 terminated any tenure rights57 held under
110. It did not make a clear finding of whether the Appellant held any rights pursuant
to the acquisition of her land tenure rights by application of customary law afte
111. The Court a quo similarly also did not make a clear finding of whether or not the
registration of State title to the communal land removed it from the ambit of the
of the statutes that were later repealed in Schedule 2 of the Communal Land
Reform Act, thus arguably, changing its status from communal to state-owned
land.
112. With reference to section 18 of the Deeds Registries Act, it is submitted that the
that the state may transfer by way of state grant to the local authority so
proclaimed.
57
The Appellant does not assert that she owned the land as her personal property, rather that she exerts
exclusive tenure and use rights over it.
58
Record 1/123/10-25 (paragraphs 26 and 27 of the judgement).
59
See Section 26 of the Communal Land Reform Act with a similar modus of transfer of use rights. These
revert to the chief who has no discretion to reallocate to a spouse or such child as the customary law may be
determined by customary law, likely to happen only in the event that a dispute arises in the family as to who
should be the holder If the spouse cannot accept the allocation.
28
transfer in the manner it does to protect the tenure rights and other property
interests of occupiers.
114. It is common cause that the Appellant’s rights were not initially held under or in
terms of the Communal Land Reform Act, which came into effect only after the
establishment of the Katima Mulilo local authority in 1995 and after the issuing
115. When a certificate of state title was issued in respect of the land the appellant
occupied, initially with her father and family, the customary tenure and land
rights held by the appellant’s father no longer pertained to communal land, but
116. Section 18(5) of the Deeds Registries Act 47 of 1937 provides that
create or deal with or dispose of any real right in any piece of unalienated State
117. This section does not hold that a certificate of registered state title confers
unfettered ownership on the state nor does it extinguish any existing rights and
118. It is not a deed of transfer conveying ownership of free-hold title without regard
119. The certificate is proof of state title to the communal land area administered
under the laws60 prior to the commencement of the Communal Land Reform
Act61. The ownership of the communal land is transferred and vested in the
of Namibia.
120. The state may hold unalienated state land under certificate of state title for its
121. It is only when land is required, customary tenure and use rights pertaining to
the former communal or trust land are discharged, by just compensation under
122. As such the tenure rights of the Appellant are not diminished or cease to exist
123. The conditions of transfer referred to in Schedule 5(3) effectively burdens the
land with the existing obligations and rights attached to it unless these are first
60
Section 11 (2) of the Interpretation of Laws Proclamation 37 of 1920 provides inter alia “Where a law repeals
any other law, then, unless the contrary intention appears, the repeal shall not - (a)….. or (b) affect the
previous operation of any law so repealed or anything duly done or suffered under the law so repealed; or (c)
affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any law so repealed; or…”
61
See Schedule 2 of the Communal Land Reform Act for repealed statues.
30
124. The Appellant accordingly submits that when the communal land or land
“reserved and set apart for the sole use and occupation of natives” was
transferred to the State in 1991 her father’s customary tenure rights remained
intact.
126. The Appellant therefore submits that the certificate of registered state title did
127. Rather the land became vested in the state in order that the state may hold it
128. The latter provision clearly provides that. the assets used in relation to such
“all rights, liabilities and obligations connected with such assets shall vest in
129. None of the Applicant’s tenure and use rights were de facto terminated, as a
result of the conditions of transfer, and therefore no claim arose against the
state in 1991.
130. Similarly, it is submitted that the declaration of the local authority similarly did
131. On the contrary, it is respectfully submitted, that the Communal Land Reform
Act, was enacted to, inter alia, specifically transform legally insecure forms of
Black tenure into legally secure tenure by allowing for registration and
certification of the exact same rights the Appellant obtained in respect of the
portion of land she has occupied in terms of her customary law title to occupy
132. The Constitution of Namibia, the Communal Land Reform Act and the Local
Authorities Act does not contemplate that insecure forms of tenure arising from
authority.
133. The complexity and nature of the interrelationship of apartheid land laws
created an unwieldly legislative web that renders the task of land reform a task
134. Be that as it may, the Appellant submits that she holds rights as envisaged
under section 28 of the Communal Land Reform Act which provides that:
“ (1) Subject to subsection (2), any person who immediately before the
communal land, being a right of a nature referred to in section 21, and which
(a) such person's claim to the right to such land is rejected upon an
(b) such land reverts to the State by virtue of the provisions of subsection
(13).”
135. The Minister has not determined a deadline date when such applications for
cause that the land no more constitutes communal land in terms of any laws.
136. The applicant submits that the land did not revert to the state as envisaged
under subsection (b) above because it was transferred to the local authority
137. The Appellant hold rights in respect of the occupation of communal land in
138. Section 16 of the Communal Land Reform Act, to be read in conjunction with
section 15 of that Act, requires right holders to be compensated before the state
139. It will be necessary to “acquire” the land only once it becomes necessary in the
public interest”. Prior to the acquisition of the land for the public interest
purpose the occupier may exercise such tenure and use rights as he or she
may have irrespective in which state organ the land itself becomes vested.
Appellant’s reliance on Section 16(2) of the Communal Land Reform Act is not
absolute.
62
Record 1/77/1-17 (Evidence in chief of Richard Mamili).
33
140. Even if it is determined that the Plaintiff could not rely on Section 16(2) of the
appropriation of her tenure and land use rights, the Appellant asserts that her
of Namibia.
CONCLUSION
141. Both the common law and the customary law of Namibia are, by virtue of Article
66 of the Constitution of Namibia, valid to the extent that they do not conflict
with statutory law or the Constitution of Namibia. This suggests that the two
142. Schedule 5 of the Constitution provides for the conditions of transfer of the
mandate and conditions are transferred and which must endure under its
control.
Government such property without charge, that such transfer is subject to any
existing rights, charge, obligation or trust on or over such property and subject
63
No AG.29 Representative Authority of Caprivians Proclamation, 1980 GG 4201 30 June 1980.
34
144. Schedule 5 also provides that the state may take transfer of communal land,
charge, obligation or trust on or over such property and subject also to the
146. The Appellant therefore relies on the basis of the original grant of the tenure
and use rights by the Mafwe Chief and by subsequent succession of rights by
way of customary law principles in asserting that she has held and currently
holds valid and legally enforceable land tenure and use rights over a portion of
land currently vested in the Katima Mulilo town council in terms of the Local
Authorities Act.
“ customary land use right which constitutes such existing right, charge,
of the Constitution.
148. The land tenure rights the appellant acquired are valid and in compliance with
the prevailing customary laws and norms applicable to the Mafwe and under
the authority of the relevant statutes in force at that time when these were
granted to her father in 1985 by Chief Richard Muhinda Mamili of the Mafwe
64
These will be referred to below.
35
149. At the date of Namibia’s independence, the customary rights held by her father,
became confirmed as such an existing right, charge obligation or trust over that
communal land.
150. These rights prevailed despite the 1991 transfer of communal land to state
registered land as a result of the conditions of transfer imposed by schedule 5
of the Constitution of Namibia at paragraph 3.
152. These trust obligations became vested in the Katima Mulilo Town Council when
it was proclaimed.
153. The Katima Mulilo Town Council arrogated the rights unlawfully.
155. Ultimately, it is therefore submitted, the core issue arising is whether statutorily-
authorised65 and validly held customary law land-use and tenure rights are
with, inter alia, reference to Schedule 5 with Article 10 and 16 of the Namibian
Constitution and also with reference to Section 16(2) as read with Section 28
of the Communal Land Reform Act and Section 3 of the Local Authorities Act.
156. This is irrespective of whether the customary land use and tenure rights were
of state title or on the date that the local authority area was declared with the
65
under acts of the previous government, such as those repealed in Schedule 2 of the Communal Land Reform
Act
36
Liability:
157. The Appellant submits that the Town Council is liable to compensate her for
the reasons, inter alia, set out at paragraphs 158 and 159 below.
158. First, the Town Council exceeded the bounds of its powers when it unlawfully
159. Second, the Town Council is a universitas and is liable for its own wrongful
160. It is submitted that it is therefore directly liable to the Plaintiff either in the sum
appropriation of her rights, or for the market value of the alienated portion of
terms of either Section 16(2) of the Communal Land Reform Act, Article 16(2)
Prescription
161. Inasmuch as the Appellant’s claim lies against the spoliator town council, it is
submitted that her claim has not prescribed because her rights have not yet
been terminated and she continues to suffer ongoing and irreparable harm.
37
Costs
162. It is submitted that the issue of costs was not to be determined on the finding
163. The Appellant did not have the opportunity to address the court a quo on the
issue of costs, particularly on the reasons why the costs should not
Town Council’s’ dilatory conduct in the case, as also to the public interest
164. Inasmuch as the Appellant is not entitled to recover costs from the
Defendants, even where she successful66 the Town Council would not be
prejudiced.
165. The Appellant is indigent and has only her land which sustains her with limited
support from her children. Once the court determined she no longer has any
rights, she has nothing and is too old to seek any employment and
166. Such a costs order would not be in the public interest and the Town Council
has gained the land only for the costs it has incurred.
ORDER:
66
Because she is a Legal Assistance Centre Client.
38
(b) ordering the first respondent to restore possession of the land over which she
holds exclusive customary rights of use and occupation, alternatively that she
(c) That the quantum of compensation be referred to the court a quo for its further
determination
(d) Such further or alternative relief which the above Honnourable Court may
deem meet.
I certify that where reliance in the heads of argument on foreign authority in support
of a proposition of law-
1. We have not, after diligent search found Namibia authority on the proposition
_______________________
For: Legal Assistance Centre
Appellant’s Legal Practitioners