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IN THE SUPREME COURT OF NAMIBIA


HELD AT WINDHOEK

CASE NUMBER: SA15/2017

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
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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

right in property4 and that no conflict of any laws arise.

Issues on appeal

4. The main issue arising in this appeal is whether the asserted customary law

land use and tenure rights of the Appellant were terminated:

(a) by registration of communal land to state title under a registered certificate

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

Council when it was proclaimed in 1995, or

(c) if it terminated on the death of her father in 2001;

5. More succinctly, the question to be answered is whether or not these events

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

or in respect of land which, as a result, is no longer communal land.

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

of the judgement of the Court a quo

7. Alternatively, as may be expedient, referred back to the court a quo for a

determination on issues of restitution, compensation, quantum and

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

of ownership of communal land to the State7 or, put differently, that

communal land became owned by the State of Namibia by virtue of Article

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

ownership or property interest rights.)

(b) and that consequently the legal effect of:

(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

incorporation of the former communal land10 held by certificate of State

Title in 1995 into the local authority area;

(iii) and that the inability of the traditional leader to continue to exercise

customary law jurisdiction over the land11

(iv) and the death of her father

summarily, and irrespective if they existed or not,12 would have terminated the

appellant’s land use rights held under customary laws 13.

(c) that, with particular reference to Section 3(3) of the Local Authorities Act,

the assets vesting in the town council upon proclamation, transfers

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

unfettered ownership rights14 in and to the property assets to the Town

Council free of any obligations or liabilities..

(d) that the state and/or the local authority could have validly acquired the land

unencumbered without first discharging the existing obligations and rights

attached to the land itself, and with particular reference to the Appellant,

without justly compensating the appellant for the expropriation15

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

continued unlawful appropriation of her customary land use and tenure

rights16;under the laws of enrichment.

(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”

for purposes of Article 16(2) of the Constitution of Namibia or Section 16(2)

of the Communal Land Reform Act.

(h) That her claim has become prescribed;

(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

an incidental issue arising below in the Appellants heads of argument at

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.

THE APPELLANT’S ARGUMENT


Context of customary tenure and occupation rights of the Appellant

12. The Appellant submits that the origin and nature of the tenure rights held by the

appellant must be considered within the context of the pre-independence legal

history of racially determined land tenure regimes throughout Namibia and

specifically to those of the Eastern Caprivi Zipfel18.

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,

customary law and statutory law.

The Customary Land Use and Tenure Right Held by Appellant

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

South African Development Trust established by Section 4 of the Development

Trust and Land Act,18 of 1936.

15. The land that the Appellant occupies was set aside under that Act for the sole

use and occupation of natives.

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

date of independence vested in the Government of the Territory of South West

Africa, or in any Representative Authority, or in any other body statutory or

otherwise, constituted by or for the benefit of any such Government or Authority.

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.

19. These trusts were extended in the various Representative Authorities

Proclamations of 198019, identical laws that specifically put native land in trust

for particular native tribes, creating the various homelands in Namibia.

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

the Communal Land Reform Act21.

Communal Land as Trust property

21. As such the trust property was vested in or became under the control of the

Government of Namibia at independence22subject to the trust.

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

to further the public interest.

23. She was legitimately exercising her land use rights because any transfer of the

vesting of ownership by a deed of grant to the Town Council would similarly be

subject to existing rights and obligations in terms of schedule 5(3) 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

Mafwe Chief in 1985.

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

valid and enforceable24 as exclusive use rights to a specific portion of land

which is not communal land anymore but vests in the local authority subject to

the beneficial use and enjoyment of the holder of the right.

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

public interest purposes25, it is only then justified in expropriating the Appellant’s

land use rights to unencumber the land free and unburdened by her customary

tenure and use rights exercised over it.

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

Article 10 of the Namibian Constitution and Equality of Customary Tenure Security.

27. Article 10 supports the proposition that all persons shall be equal before the

law, and that no person may be unfairly or legitimately discriminated against.

28. Accordingly, it is submitted that insecure property rights afforded to black

people under previously discriminatory laws should not be readily appropriated

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

importance of the national Legislature dealing uniformly with matters of security

of tenure and access to land is apposite in this regard –

“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

that the Constitution recognises this deep injustice”.

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

similarly recognised and shunned.

31. It is undeniable that the Namibian government and national legislature is placed

under the same urgent constitutional obligation to provide redress through

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

discrimination which happened in the past, particularly regarding equality of

tenure security.

Inequality and customary tenure insecurity

32. It is a well-known fact that much of the native land in Namibia was generally

seized by colonial authorities without compensation27. to any right holders. It is

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

dominant influence of the Roman Dutch common law concepts relating to

ownership and property rights over indigenous modes of occupation.

34. Customary land tenure refers to the systems that most rural black African

communities operate to express and order ownership, possession, and access,

and to regulate use and transfer.

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

law (statutory land tenure).

36. Although the rules which a particular local community follows are known as

customary law, they are rarely binding beyond that community29.

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

Dutch property law principles, sometimes similar, is vastly different in its

application and determination of property rights

Roman Dutch property and tenure rights versus Customary Law

38. One of the most infamous cases in the common-law with judicial regard to

African law property rights is undoubtedly the southern African case, Re

Southern Rhodesia [1919] AC 211 CD 7509 upholding the summary

dispossession of the Ndebele from their lands in Matabeleland:

'The estimation of the rights of Aboriginal tribes is always inherently difficult.

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

then to transmute it into the substance of transferable rights of property as we

know them”.

39. This judgement was delivered in the same year that the Crown Land Disposal

proclamation affected Namibia and demonstrates the prevalent legal ideology

which furthered subjugation of “Black” property rights under the regulation of

the South African colonial administration following the German administration

which was, inter alia, in turn, characterised by its policies of large-scale land

confiscation of native territories in Namibia.


12

40. The Convention on the Elimination of All Forms of Racial Discrimination

(CERD)30 provides an authoritative legal definition of racial discrimination.

Article 1 defines it as:

“… any distinction, exclusion, restriction or preference based on race, colour,

descent, or natural or ethnic origin which has the purpose or effect of nullifying

or impairing the recognition, enjoyment or exercise on an equal footing, of

human rights and fundamental freedoms in the political, economic, social,

cultural or any other field of public life.”

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.

44. Affirmative action measures have a legitimate objective to bring about

substantive equality by differentiating on the ground of race in order to offset

the present effects of the race-based injustices of the past.

Equality of Appellant’s Customary Land Tenure Rights in Namibian Law

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.

Article 100 and Schedule 5 of the Constitution of Namibia

46. It is respectfully submitted that the application of Article 100 to the facts in the

judgement of the court a quo emerges as an irrational, ambiguous and

repressive interpretation of the law which undermines carefully calibrated

national legislation and government policies and threatens to infringe the

fundamental rights31 of some of the poorest and most vulnerable members of

our society.

47. The South African Constitutional Court stated in Port Elizabeth Municipality v

Various Occupiers regarding the tenure rights of homeless respondents - a

legal statement which is submitted to be of equal importance in the Namibian

context with reference to this Appeal, given the similar legal history under

similar laws and policies of our mutual predecessor government:

“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

of marginalised and poor people. To do so would undermine the integrity of the

rights based vision of the Namibian Constitution.

The Application of Article 100 of the Constitution of Namibia.

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

and control of communal land in the Government of the Republic of Namibia

(GRN) at independence.

50. Article 100 provides for an ambiguous statement of state ownership of

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

to land that is 'not otherwise lawfully owned”.

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

otherwise lawfully owned'.

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

detailed definition of the broader term, 'property' in Schedule 5, a schedule that

specifically sets out to define what property vests in the state.

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

short of actual free-hold ownership.

55. Thus, Schedule 5 is drafted to transfer to the Government of Namibia land rights

of less than a free-hold ownership 'owned or controlled' by the Government of

South Africa.

56. It is not submitted that Schedule 5 is a complete legal definition of the law of

any form of property, communal or otherwise, for constitutional purposes, equal

to Article 16, although it can be used for interpretive purposes.

57. Therefore, Schedule 5 can neither define, nor define away communal or any

other property rights protected under Article 16.

58. Rather, it defines fully which South African state property 'vests' in the

Government of Namibia and under what conditions.


16

Article 16 Property rights over communal land

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

Namibia or with Article 100.

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

used in the Constitution.

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,

those rights were cast in broad terms.

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

Application of Article 16 of the Constitution of Namibia

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

movable property individually or in association with others, suggests that Article

16 must protect the traditional or communal property rights of black people in

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

Reform Act and other reformative legislation38.

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.

67. An interest in communal lands, grounded in traditional customary law must be

understood to be a property interest under the common law. To hold otherwise

is inconsistent with the broad provisions of the Constitution providing for racial

equality and in particular Article 10.

68. The Constitution of Namibia requires in principle, as strong a protection of black

people's rights to their property interest - whether divided or undivided, whether

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

in trust, as part of some communal entity such as a tribe, band, or family, or in

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

need not be defined in order for Article 16 to be effective: it is sufficient simply

that there exists any property interest at all, no matter what its nature. A

'usufructury right', under Roman Dutch Law is sufficient as is a servitude or a

hypothec such as a mortgage bond.

70. The legally defined “white” property rights as rights held under free-hold title,

according to English and Roman-Dutch common law legal principles, and

colonial statutory regimes denied an equivalent property right, held customarily

in the form of communal lands, under various African principles of law, to land

held communally by black people.

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

must be constitutionally recognized, and accorded a legal status at least the

equal of Roman Dutch or common-law principles.

72. Nothing in the recognition of parallel property rights in communal lands

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

Roman-Dutch and English common-law regimes.

74. Rather, it is submitted, Article 16 specifically protects all forms of property,

including property interests less or other than real rights of property ownership

held by free-hold title.

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

the legislature’s intention40.

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 ...

own ... all forms of immovable and moveable property'.

77. The wording of a constitutional document, however is to be given a 'wide and

liberal meaning41'.

78. Therefore, it is submitted, the words 'all forms of property' are absolutely clear

and can mean nothing else than 'all forms of property'.

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

more detailed definition of the broader term, 'property' in Schedule 5, a

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

Namibian population, is wrong for the reasons set out above.

81. It is submitted, in the premises, that the Appellant’s customary right of tenure

does indeed constitute a form of property, in the nature of a real right, as

envisaged under article 16 of the Constitution of Namibia and worthy of equal

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

customary rights relating to “PTO’s” are deprived of existence.

84. This finding seems to suggest that so-called “PTO”s in the form of leaseholds

would be compensated while a person holding a customary right under Section

28 of the Act or customary tenure rights by virtue of Schedule 5(3) of the

Constitution would not.

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,

being customary rights relating to PTO’s would a fortiori cease to exist44.where

they exist over land declared to form part of the local authority’s townlands.

86. Such an interpretation, it is submitted, would obviate the rational objective of

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.

Section 3 of the Local Authorities Act

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

town council to dispose of property or assets without due consideration of the

property interests, obligations, charges and rights that may be vested in it.

88. Instead Section 3(3)(a) provides that:

“ If the area of any township or village management area established or

purporting to have been established by or under any law on the establishment

of townships or village management boards on communal land is, in terms of

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

Minister.” [our emphasis].

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

became vested in it.

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

rights held to land granted under previous laws.

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

the public interest.

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

furtherance of the powers, functions and duties of the town council.

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

liabilities and obligations so incurred;48;

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

functions when it was declared as such.

96. Section 30 (t) provides that the Town Council may, inter alia, acquire any right in

respect of immovable property required in fulfilment of its functions49.

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.

Section 1 “owner” in terms of the Local Authorities Act

98. It is further submitted that Section 1 of the Local Authorities Act defines the

content of owner” in relation to immovable property for purposes of that Act.

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

such land is registered, or…. (b) if such immovable property- [….]

(ii) is occupied by virtue of a servitude or under any other real

right in such immovable property, means its occupier50;

[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

right of tenure and use in such immovable property.

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

owner” for purposes of the Local Authorities Act.

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

customary land rights over that portion of land51.

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

decision of the Mafwe family members or if a dispute arises, to be resolved in terms of

the laws of the Mafwe Traditional Community”52.

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

succession in perpetuity of that right to the next of kin in terms of Mafwe

Customary law principles54.

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

jurisdiction over the land.

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

therefore unclear whether or not this means:

(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

Appellant – such clarity would have relevance to the nature of the

Appellants compensation claim, the quantum of which is founded on

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

Appellant’s action should have lain against the State or

(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

liability falls on the state irrespective (because the minister oversees

certain transactions relating to the town council’s assets56).

109. In applying the law to the facts the finding of the Court a quo, it is respectfully

submitted, also does not appear to consider whether the registration of a

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

customary laws on that land58.

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

death of her father59.

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.

The Certificate of State Title

112. With reference to section 18 of the Deeds Registries Act, it is submitted that the

better position is to be understood in the manner that, in order to deal with

unalienated state land, a certificate of state title is to be first registered in order

that the state may transfer by way of state grant to the local authority so

proclaimed.

113. Accordingly, it is submitted that such an interpretation supports the proposition

that Schedule 5 (3) of the Namibian Constitution formulates the conditions of

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

of a certificate of state title over the communal land in 1991.

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

to land vested in the government of Namibia by virtue of the provisions of

Schedule 5(1) subject to section 5(3) of the schedule..

116. Section 18(5) of the Deeds Registries Act 47 of 1937 provides that

“ No deed (other than a deed of grant conveying ownership) purporting to

create or deal with or dispose of any real right in any piece of unalienated State

land shall be capable of registration until a certificate of registered State title

has been executed in respect of that piece of land”.

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

obligations in respect of the land held by it under certificate of state title.

118. It is not a deed of transfer conveying ownership of free-hold title without regard

to existing rights and property interests on that land.


29

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

state subject to the conditions of Paragraph 3 of Schedule 5 to the Constitution

of Namibia.

120. The state may hold unalienated state land under certificate of state title for its

later disposal by way of a deed of grant conveying ownership at any convenient

time to accommodate the public interest.

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

article 16 (2) of the Namibian Constitution or by other lawful means, failing

which the tenure right remains intact.

122. As such the tenure rights of the Appellant are not diminished or cease to exist

because they are not lawfully discharged or repealed or otherwise abrogated

by an act of the legislature.

Conditions of transfer to state and local authority

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

extinguished by just compensation or other lawful means to the right holders.

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.

125. It is these trust obligations assumed by the Government of Namibia on

independence that assure the Appellant’s security of tenure under schedule 5

of the Constitution of Namibia.

126. The Appellant therefore submits that the certificate of registered state title did

not detract from the communal nature of the land.

127. Rather the land became vested in the state in order that the state may hold it

pursuant to the proclamation of the town council in accordance with Section

3(1) read with Section 3(3)(a) of the Local Authorities Act.

128. The latter provision clearly provides that. the assets used in relation to such

township or village management area and

“all rights, liabilities and obligations connected with such assets shall vest in

the [….], town council”.

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

not terminate her tenure rights or cause them to cease to exist.


31

Application of Communal Land Reform Act

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

and use it.

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

discriminatory legislation in the past may be abolished or reformed by any local

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

that only the national legislature can undertake.

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

commencement of this Act held a right in respect of the occupation or use of

communal land, being a right of a nature referred to in section 21, and which

was granted to or acquired by such person in terms of any law or otherwise,

shall continue to hold that right, [our emphasis] unless-

(a) such person's claim to the right to such land is rejected upon an

application contemplated in subsection (2); or


32

(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

recognition and certification of Section 28 are due. However, it is common

cause that the land no more constitutes communal land in terms of any laws.

And such an application was not available to the Appellant in 1995.

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

Town Council in terms of the Local Authorities Act.

137. The Appellant hold rights in respect of the occupation of communal land in

terms of a predecessor act and in accordance with the principles62 of the

customary laws in terms of which it was granted immediately before the

commencement of the Communal Land Reform Act.

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

can actually “acquire” the land.

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

Communal Land Reform Act on her right to be compensated against the

appropriation of her tenure and land use rights, the Appellant asserts that her

rights are nevertheless protected by application of article 16 of the Constitution

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

sources of law are equal in application.

142. Schedule 5 of the Constitution provides for the conditions of transfer of the

communal lands, formerly vesting under the administration of the Caprivian

Representative Authority63, to the Government of Namibia under which the trust

mandate and conditions are transferred and which must endure under its

control.

143. Paragraph 3 of Schedule 5 of the Namibian Constitution sets a condition to the

effect that the Registrar of Deeds, although it is obliged to transfer to the

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

also to the provisions of the Constitution.

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,

(previously administered under other laws)64, subject to any existing rights,

charge, obligation or trust on or over such property and subject also to the

provisions of the Constitution.

145. Article 10 of the Constitution of Namibia prevents unfair discriminatory

practises, including tenure insecurity based on racial differences.

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.

147. The Appellant holds a right which is a

“ customary land use right which constitutes such existing right, charge,

obligation or trust on or over such property….” as referred to in Schedule 5(3)

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

Tribal Authority and Mafwe Royal House.

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.

151. The Appellant acquired these rights by operation of law.

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

protected as a form of property under article 16 of the Constitution of Namibia

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

determined to have ceased to exist either at the date of registration of certificate

of state title or on the date that the local authority area was declared with the

township of Katima Mulilo in 1995.

65
under acts of the previous government, such as those repealed in Schedule 2 of the Communal Land Reform
Act
36

Remaining issues for determination or referral to court a quo for consideration as


may be expedient:

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

appropriated the Applicant’s exclusive use and occupation rights on portion of

the land which remained subject to these rights.

159. Second, the Town Council is a universitas and is liable for its own wrongful

acts or those of its servants vicariously.

160. It is submitted that it is therefore directly liable to the Plaintiff either in the sum

of damages claimed for unjust enrichment as a result of continued unlawful

appropriation of her rights, or for the market value of the alienated portion of

land as claimed, on the basis that same constitutes just compensation in

terms of either Section 16(2) of the Communal Land Reform Act, Article 16(2)

or as damages under the laws of enrichment.

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

which the court a quo has made.

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

necessarily follow the cause in the circumstances relating to the Defendant

Town Council’s’ dilatory conduct in the case, as also to the public interest

nature of the matter.

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

accordingly such a costs order will serve no useful purpose.

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:

Wherefore the Appellant prays for an order:


(a) Upholding the Appellant’s appeal that her customary rights are extant;

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

is compensated for the loss thereof.

(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.

DATED AT WINDHOEK THIS THE DAY OF SEPTEMBER 2018


39

CERTIFICATE IN TERMS OF RULE 19.

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

of law under consideration; and

2. Have satisfied ourselves that there is no Namibian law, including the

Namibian constitution that precludes the acceptance by the court of the

proposition of law that foreign authority is said to establish.

DATED AT WINDHOEK ON THIS 3 rd DAY OF SEPTEMBER 2018.

_______________________
For: Legal Assistance Centre
Appellant’s Legal Practitioners

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