Constitutional Interpretation

Agnes Kahimbi Kashela v Katima Mulilo Town Council and Others (SA 15/2017) [2018] NASC 409 (16 November 2018);

Headnote and Holding: 

This was an appeal against a decision of the High Court to dismiss the appellant’s claim for loss of occupation of communal land. Her second claim was that the land was unlawfully expropriated without compensation by the respondents.

The court determined whether or not the appellant had acquired a valid customary law tenure right in the land in dispute and whether this right was unlawfully interfered with. Further, whether any liability attached to the council arising from its interference with that right.

The first respondent (“the council”), contended that the land belonged to it and had ceased to be communal land thus extinguishing communal land tenure. The court found that the appellant acquired and held a customary land tenure right and the state’s succession to the communal land did not extinguish communal land tenure but the state simply held the land in trust for the affected communities.

The court established that the Constitution guaranteed the enforcement of customary land rights. The court therefore, concluded that the appellant had an exclusive right to the use and occupation of the land in dispute; and that the right attached to the land even after its proclamation as town land.

Accordingly, they court upheld the appeal with costs in favour of the appellant. The matter was remitted to the High Court for the adjudication of the appellant’s claim of unjust enrichment and compensation.

Kambazembi Guest Farm cc t/a Waterberg Wilderness v Ministry of Lands and Resettlements (CASE NO: SA 74/2016) [2018] NASC 399 (27 July 2018);

Headnote and Holding: 

This was an appeal against the High Court’s decision that declared the land tax imposed under ss 76 to 80 of the Agricultural (Commercial) Land Reform Act as constitutional.

The court determined whether s 76 contravened the constitutional principal of separation of powers which gives the National Assembly power to provide for revenue and taxation.

The appellant contended that the law in question went against separation of powers by devolving legislative power to a minister.

The court held that s 76 did not conflict with the constitutional principles of separation powers as the power of the National Assembly had been exercised by the stipulation of a tax as authorised by the Constitution. The court found that the only role of the minister was to set a rate according to a procedure set out in the regulations. The court stated further that in any event, this rate was subject to the approval of the National Assembly and as such, no independent power was vested in the minister.

The court noted that the regulations that were challenged set out how the land was to be administered. The court held that the appellant’s claim lacked sufficient particularity required for pleadings in constitutional litigation. 

Accordingly, the court held that the appellant had failed to establish how these regulations contravened constitutional provisions and dismissed the appeal. The court also dismissed the appellant’s prayer with no order as to costs.

Kashela v Katima Mulilo Town Council and Others (I 1157/2012) [2017] NAHCMD 49 (01 March 2017);

Headnote and Holding: 

The plaintiff’s claim was for judgment against the defendants for rental money received from the 3rd to 8th defendant from leasing part of plaintiff's land. The plaintiff also claimed compensation for loss of land as per art. 16(2) of the Namibian Constitution.

The applicant argued that she acquired a customary land right in respect of riparian land that was designated as communal land by a representative of the Mafwe Traditional Authority, after her father’s death in 2001.

The land became state land after it was declared a township in 1995 and was thus transferred to the Katima Mulilo Town Council.

The defendants argued that the local authority owned the land and the plaintiff had no right thereof. The court held that ownership of the land vested in the local authority as per the Local Authorities Act of 1992. The court applied s. 15(2) of the Communal Land Reform Act of 2002 as read with Section 3 of the Local Authorities Act of 1992 and held that the land ceased to be customary land when the town council became the owner in 1995.

The court noted as an obiter (by the way), that the claim for compensation should have been made against the state for taking possession of the community land not the Local Authority.

Accordingly, the claim was dismissed with costs. 

Uffindell t/a Aloe Hunting Safaris v Government of Namibia and Others ((P) A. 141/2000 ) ((P) A. 141/2000) [2009] NAHC 51 (20 April 2009);

Headnote and Holding: 

This was an application to review the minister’s decision that differentiated the manner of issuing the sale of trophy hunting concessions as between the applicant and fourth respondent.

The applicant succeeded in obtaining an order to show cause (rule nisi) and an interim interdict of the reliefs in their application to prohibit the implementation of the concessions.

The applicant’s locus standi was challenged during the proceedings. The court applied the reasonable person test and held that the applicant was an ‘aggrieved person’ whose fundamental rights had been infringed or threatened to be infringed.

The court considered whether the minister violated the applicant’s right to equality and held that the minister acted fairly; since the decision was made to redress the injustice of the fourth respondent and did not violate the cabinet’s policy or the constitutional principle of equality.

The court also considered whether the decision violated the applicant’s right to administrative justice as per the concept of legitimate expectation of a hearing. The court applied the rule that the court should consider the existence of a duty to act fairly. The court held that the principles of a sale by private treaty did not require the minister to afford all professional hunters an opportunity to be heard. Having found that the concession was legally granted, the court did not deal further with the issue on violation of the freedom of economic activity.

Accordingly, the court dismissed the application for interdictory relief and made an order as to costs.

Wapulile v Chairman Ohangwena Communal Land Board N.O (A 265/2013) [2013] NAHCMD 340 (15 November 2013);

Headnote and Holding: 

The matter focused on the lawfulness of the removal of fencing surrounding land for agricultural purposes in a communal area. 

The respondent, Ohangwena Communal Board, established under s 2 of the Communal Land Reform Act 5 of 2002 removed fencing erected by the applicant, around a tract of agricultural land in a communal area, which the applicant alleged had been duly allocated to him in 1986. 

The applicant approached the High Court on an urgent basis for an interdict to restrain the board from removing the fencing surrounding the grazing farm and from disposing of the fencing material which had already been removed. 

The applicant maintained that in terms of s 18(b) read with s 28(2)(b) and 28(3) of the act, he is entitled to retain the fences which he had erected on and around the farm. The court found that the applicant had erected the perimeter fence prior to the coming into force of the Act and his intention to apply for authorisation for the retention of the perimeter fence, meant that the removal of the fence by the respondent was unlawful and in conflict with the act.  

Given the entitlement to retain a fence if the statutory requisites in s 28(80) are met, it would be unlawful for boards to remove such fencing where applicants intend to make such application prior to the expiration of the period set by the Minister pursuant to s 18. 

The interdictory relief was granted.

Zeraeua Traditional Authority v Mathe and Others (A 169/2013) [2013] NAHCMD 163 (13 June 2013);

Headnote and Holding: 

The court considered an urgent application for spoliation orders (common law remedy) against the first to eleventh respondents or alternatively, an eviction order against them.

The thirteenth respondent purchased three farms which were adjacent to land which was incorporated in a communal area falling under the jurisdiction of the first applicant, a traditional authority. These farms were intended to be incorporated into the communal land falling under the applicant’s jurisdiction. The Government of Namibia initiated the process of incorporating these farms into the communal area under the first applicant through a notice published in the Government Gazette pursuant to the provisions of the Communal Land Reform Act 5 of 2002. 

The issue facing the court was whether the first to eleventh respondents had the prerogative to occupy the farms with their cattle grazing on them, without authority to do so. The respondents argued that the applicant lacked locus standi (capacity) to bring the application since the land had not yet been incorporated into the communal area by way of notice in the Government Gazette, as required by the act, thus the applicant did not have jurisdiction over the land. 

The application for spoliation was refused because the applicant could not show deprivation of possession by reason of the respondents’ occupation which predates its possession and control. Thus, the court found that the respondents could not establish any right to be on the farms. 

The eviction order was granted with costs.

Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others (SA 09/2011) [2014] NASC 4 (26 March 2014);

Headnote and Holding: 

This was an appeal from the High Court to the Supreme Court. The case concerned a ministerial notice stating that nuclear energy prospecting licenses regarding certain areas will not be provided.  The appellant was allegedly an aspiring applicant. He thus felt aggrieved with the notice.

In the High Court, it was held that the appellant lacked legal capacity to challenge the notice as the notice did not create any triable issue. Aggrieved, the appellant appealed to the Supreme Court.

Thus, the main issue for determination was whether the respondent's notice exempting certain areas from being prospected for nuclear resources was unconstitutional. The appellant’s argument was that the denial of the prospecting license violated his constitutional right to work. 

In response, the Supreme Court upheld the High Court decision, but it disagreed with the High Court that the respondent lacked the legal capacity. According to the Supreme Court, the appellant would have been successful if the minister had no statutory powers to issue the notice or if the process was procedural. However, the minister had such powers under section 122(1) of the Mineral (Prospecting and Mining) Act of 1992. Consequently, the Court held that it cannot order the minister to issue the license if the notice is still in existence. Also, the Supreme Court held that the constitutional provision on the right to work does not mean that people can conduct mining activities without being regulated given the environmental challenges. 

Following this, the appellant's case was dismissed with costs.

Minister of Mines and Energy and Others v Petroneft International Ltd and Others (SA 32/2011) [2012] NASC 5 (21 June 2012);

Headnote and Holding: 

This was a Supreme Court case that revolved around an agreement between the parties which was suddenly terminated. The agreement demanded that the respondent to import oil resources on behalf of the Government of Namibia. The arrangement proved to be failure as the cost of importing petroleum was high against the market price. Consequently, the first appellant, acting in ministerial capacity decided to end the agreement.  The first respondent felt aggrieved and filed a suit in the High Court, asking it to review the decision of the cabinet that terminated the said contract.

As such, the main issue, in this case, was whether the cabinet of the government of the Republic of Namibia acted lawfully when it revoked the mandate of the respondents to import petroleum products.  The High Court in determining this issue held that the cabinet had no legally tenable reason(s) to end the contract in question.

However, on appeal, the Supreme Court held that under the Namibian Constitution in article 27(2), the executive power of the Republic of Namibia vests in the president and the cabinet. It further held that under the article, the cabinet has the role of supervising the activities of the government departments.  Since the third, fourth, fifth, and sixth respondents are government parastatals the cabinet justifiably exercised its regulatory powers in the best interest of the Namibian people. 

The Supreme Court thus overturned the decision of the High Court and accordingly upheld the appeal.

Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment & Tourism (SA13/04 ) [2005] NASC 9 (23 November 2005);

Headnote and Holding: 

This was an appeal to the Supreme Court on a judgment of the High Court which had dismissed an application for the review and setting aside of a decision by the respondent to refuse the importation of Mountain Reedbuck from South Africa into Namibia.

The appellant cited the respondent, pursuant to his duties, powers and functions as set out in the Nature Conservation Ordinance No. 4 of 1975. The appellant placed particular emphasis on his duty to consider and decide on the importation of live game from South Africa in accordance with Section 49(1) of the ordinance as amended by Section 12 of Act 5 of 1996. The evidence revealed that the decision to refuse the import of Mountain Reedbuck was made by a subordinate official who was not authorised to do so and based on a new policy which had not been communicated to the appellant.

The court found out that this issue hinged on the confusion surrounding the parties involved, the reasons for the refusal and the failure of the respondent to abide by Rule 53 of the Rules of the High Court and Article 18 of the Namibian Constitution linked to administrative justice and the doctrine of “reasonable expectation”. The court held that the subordinate official acting on behalf of the respondent did not have the authority to make the decision which was set aside. Accordingly, the appeal succeeded, and the court directed the respondent to issue the permits applied for and pay the appellant’s costs.