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Ndevahoma v Shimwooshili and Others (HC-MD-CIV-ACT-OTH-2017/03184) [2019] NAHCMD 32 (25 January 2019);

Flynote: 

Customary Law – Communal Land – Communal land rights – Power to evict a leaseholder from a communal land – Whether the Communal Land Reform Act, 2002 empowers a leaseholder to cancel a sub-lease and evict a sub lessee from a communal land area.

Headnote and Holding: 

The uncle of the plaintiff and the first defendant had occupied an area called Eengolo-Ondjiina which forms part of communal land as contemplated in s 15 of the Communal Land Reform Act, 2002 with the blessing of the Oukwanyama Traditional Authority.

As from 2017, the plaintiff had taken over the management of Eengolo-Ondjiina. In April 2015, the plaintiff signed a Notarial Lease Agreement in respect of Eengolo-Ondjiina with the Government of the Republic of Namibia and during April 2017, the plaintiff was issued with a Certificate of Leasehold in terms of s 33 and Regulation 16 of the Agricultural Communal Land Reform Act, 2002.

After the plaintiff was issued with the certificate of leasehold, a dispute arose between the plaintiff and the first defendant, with the plaintiff alleging that, he holds exclusive leasehold or customary land rights in respect of Eengolo-Ondjiina and that he had given the first defendant the right to occupy Eengolo-Ondjiina on certain conditions. Alleging that the first defendant failed to adhere to the conditions in terms of which he was granted permission to occupy Eengolo-Ondjiina, the plaintiff gave notice to the first defendant to vacate Eengolo-Ondjiina by the end of June 2017.  The first defendant did not vacate Eengolo-Ondjiina as demanded by the plaintiff and the plaintiff commenced these proceedings.

The plaintiff’s primary bone of contention was that because of the first defendant’s breach of the conditions in terms of which he was granted permission to occupy Eengolo-Ondjiina, he has withdrawn that permission and the first defendant now occupied Eengolo-Ondjiina without permission, and it is on that ground that he seeks the eviction of the defendant from Eengolo-Ondjiina.

The first defendant was however of the view that the leasehold on which the plaintiff relies is in respect of communal land as contemplated in s 19 of the Communal Land Reform Act, 2002 which is not exclusive and is subject to the rights of others, including his (first defendant) right to occupy such land and further that it does not confer a right on the plaintiff to approach the High Court and evict him.

Held that despite the fact that the concept of communal land defies precise definition, it has, in Namibia, generally been understood that communal land include land owned in trust by the government but administered by traditional authorities who make allocation of parcels of land to members of the community, ordinarily but not exclusively to live thereon, till and or graze thereon and generally to make a living, without acquiring ownership or title to that land.

Held further that s17 of the Communal Land Reform Act, 2002 makes it very clear that all communal land areas belong to the State, which must keep the land in trust for the benefit of the traditional communities living in those areas. The State is enjoined to put systems in place to make sure that communal lands are administered and managed in the interests of those living in those areas. The Act also makes it clear that communal land cannot be sold as freehold land to any person.

Held further that communal lands may only be occupied or used in line with a right granted under the Communal Land Reform Act, 2002. This includes existing customary land rights (under s 28) and other existing rights to use communal land (under s 35). A person who occupies communal land without having the right to do so can be evicted by a Chief, Traditional Authority or a Communal Land Board.

Luxury Investments One Hundred and Ninety Two (Pty) and Another v Koujo and Others (HC-MD-CIV-MOT-REV-2017/00411) [2018] NAHCMD 390 (28 November 2018);

Flynote: 

Practice – Judgments and orders – Application for stay of execution of judgment pending appeal to Supreme Court – Court having jurisdiction to determine matter in terms of its inherent jurisdiction where dictates of real and substantial justice required it.

Headnote and Holding: 

The first respondent filed a notice of appeal to the Supreme Court against the orders and judgment of this court dated 20 August 2018 wherein the court granted the applicant’s conditional counter-application. Shortly after the filing of the appeal by the first respondent, the applicants thereafter launched an application for leave to be granted to put the order dated 20 August 2018 into operation pending the appeal process.

In support of the application, a detailed founding affidavit deposed to by Mr. van der Plas was filed together with a number of supporting affidavits. The application was duly opposed by the first respondent and an answering affidavit of Mr. Koujo was filed in support of this opposition.

The crisp question for determination in the matter in casu is thus whether on the facts at hand, a proper case is made out to grant leave to put the order to execute the judgment into operation pending the appeal process.

This rule was premised on a principle of the common law to the effect that the noting of an application for leave to appeal, suspended the ‘execution’ of the order. Applications for leave to execute judgments of this court pending appeal, are governed by the provisions of Rule 121 (2). Rule 121(2) of the Rules of the High Court.

Mr. Heathcote argued on behalf of the applicants that the first respondent did not put up any case for potential of irreparable harm or prejudice and leave to execute should be granted. He pointed out that the first respondent, apart from a sweeping statement by the first respondent that he will suffer ‘massive and irreparable harm’, he failed to advance a single primary fact for such a statement.

Mr. Heathcote submitted that in contrast with the first respondent, the applicants made out a clear case for ‘massive and irreparable harm’ or prejudice should leave to execute be refused. He submitted that this was factually demonstrated in the founding affidavit of Mr. van der Plas.

Mr. Namandje contended that the applicants’ case is based on the wrong assumption that the judgment of this court in August 2018 resulted in a restoration of the first and second applicants mining claims. He argued that the applicants are defending this court’s acceptance of the irregular affidavit filed after close of pleadings and in which affidavit the third respondent stated under oath that the first applicant’s application for mining claims were still under consideration. However, he argued that whether or not the mining claims were granted, the fact remains that the cancellation of the first respondent’s claims was reviewed and set aside and the order on the counter application did not put any life in the alleged claims of the first applicant as the matter was simply referred back to the decision-maker.

It was argued that the majority of the allegations made on behalf of the applicants relates to the prejudice or irreparable harm to be suffered by the second applicant but that the second applicant as already alluded to did not apply for mining claim not does it have any. The allegations of prejudice and irreparable harm are therefore irrelevant and thus inadmissible.

It was further argued that the first respondent duly applied for mining claims and was granted such mining claims. Third parties were contractually recruited to undertake mining activities and it would suffer irreparable harm and prejudice if the first respondent were dislodged from the mining area, while awaiting the outcome of the appeal to the Supreme Court. Mr. Namandje submitted that it would be against all notions of justice if the first respondent were to be denied the right to undertake its mining activities when he has filed an appeal as the appeal enjoys excellent prospect of success.

Held – From the onset, there is very little contained in the answering affidavit of the first respondent in opposition to the application. In the answering affidavit of the first respondent, he indicated that he will suffer irreparable harm if the application is granted in favor of the applicants. The first respondent did not elaborate on the nature of or the potentiality of irreparable harm or prejudice.

Held – No documentation was presented to this court as to the nature of the potential prejudice or harm that the first respondent will suffer.

Held further – It not apparent how and why the respondent will be severely prejudiced should execution be granted. If the Wightman case is applied to the facts of this matter, there is clearly no real, genuine and bona fide dispute of fact that exists as the first respondent who raised the dispute in his answering affidavit did not address the facts said to be disputed.

Held – A court dealing with an application for leave to execute must caution itself against the temptation to deal with the application as if it was the appeal court, for this would have the undesirable effect of pre-judging the outcome of the appeal.

Held further – In my view, counsel for the first respondent remained unable during the hearing to demonstrate that there are prospects of success on appeal on the grounds raised. I do not believe that another court might come to a different conclusion on the grounds raised.

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.

Fish Orange Mining Consortium (Pty) Ltd v !Goaseb and Others (CASE NO: I 582/2010) NAHCMD 154 (08 June 2018);

Flynote: 

Civil Procedure – application for absolution from the instance –   Rules of Court - Rule 100 – principles governing the application discussed – requirement for absolution from the instance - whether or not the plaintiff set out a prima facie case  – Law of Evidence - whether failure to examine an expert who has filed his report results in the court attaching no value to the expert report – commercial value attached to the Exclusive Prospecting Licence – court’s discretion on how the value of the EPL License is computed. 

Headnote and Holding: 

The plaintiff sued the defendants for payment of an amount of N$ 5 Million. The amount claimed is in respect of the plaintiff sustaining  damages as a result of the unlawful and wrongful transfer of a exclusive prospecting  licence (E.P.L.) caused by the 1st and 2nd defendants to the 3rd defendant. At the close of the plaintiff’s case, the 1st and 2nd defendants brought an application for absolution from the instance on the following grounds - first, the defendant submitted plaintiff failed to lead admissible evidence of an expert to prove that the EPL has some commercial value which would in turn prove the amount of damages allegedly suffered by the plaintiff.  The second point of argument related to the laws relating to the issue of extraction of minerals and that the plaintiff did not have the licence to mine and remove the minerals for sale.

Held:   That the plaintiff had led evidence to suggest that the transfer of the licence by the said defendants was unlawful.

Held further: That the plaintiff did place evidence before court by an expert regarding the value of the E.P.L. (subject to certain safeguards) and that the court was not entitled to disregard that evidence merely because the said expert was not examined, considering that his report was admitted by the consent of the parties. 

Held: That the E.P.L. does have some commercial value and it is the duty of the court, subject to hearing the evidence of the defendants, that has to decide what damages, if any, had been proved by the plaintiff.

Held further that: The awarding of damages is primarily the duty of the court and not that of the expert witness.  

Held: That the plaintiff had succeeded to meet the threshold of absolution from the instance, namely that it had adduced evidence upon which a court acting reasonably may find for the plaintiff.

The application for absolution from the instance was thus refused with costs and the defendants were ordered to open their defence.

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.

S v Mbali (No Case Number) [1990] NAHC 391 (27 March 1990); 1990 NR 1 (HC)

Headnote and Holding: 

The matter dealt with an application by the state to recall witnesses in a trial in which the accused stood charged in the main count with theft of diamonds, or alternatively with possession of diamonds in contravention of Proclamation 17 of 1939. The court had dismissed the main charge on the basis that the link between the objects which were found in possession of the accused, and which were ultimately valued and identified as rough and uncut diamonds, did not exist. However, the state relied on the alternative and requested the court to recall witnesses to prove that these objects were in fact rough and uncut diamonds.

The main issue was whether it was necessary to recall witnesses for the fair adjudication of a case.

The court stated that where the evidence of a witness was necessary for the fair adjudication of the case, the court was obliged in terms of s 167 of the Criminal Procedure Act 51 of 1977 to recall that witness or those witnesses.

The court established that the evidence was necessary for the fair adjudication of the case between the State and the accused, in the sense that a person who was guilty on that charge might be acquitted but that the giving of such evidence would not lead to an innocent person possibly being found guilty.

The court, therefore, held that the evidence was essential for the fair adjudication of the case and granted the application by the state.

Namibian Marine Phosphate (Proprietary) Limited v Minister of Environment and Tourism and Others (CA 119/2016) [2018] NAHCMD 122 (11 May 2018);

Flynote: 

Statutory Appeal - Section 51(1) of the Environmental Management Act, 7 of 2007 - on points of law only - Meaning - Whether grounds of appeal are based on points of law.

Constitutional law — Fundamental rights — Administrative justice —Failure to invite one of the parties to a dispute to the appeal hearing— fundamentally unfair hearing — Violation of arts 12 and 18 of Constitution.

 

Headnote and Holding: 

 

The appellant was granted an environmental clearance certificate for marine phosphate mining by the Environmental Commissioner. The second respondent, a certain Mr Michael Gaweseb, appealed against the Commissioner’s decision, to the Minister. The Minister set aside the granting of the certificate, primarily on the ground that the Commissioner did not adequately consult the public and interested persons.

During the appeal hearing before the Minister, both parties had made written representations. The second respondent completed the appeal Form 3 which was also handed to the appellant and the appellant subsequently, delivered a responding statement thereto. On the day of the hearing, the Minister gave the second respondent an opportunity to make oral submissions, but, the appellant was not informed of the appeal hearing and was thus not present at the appeal hearing. During those submissions, the second respondent introduced a new issue – inadequate consultations, but this issue was not recorded as a ground of appeal on the appeal Form 3 and therefore the appellant had no knowledge of it.

Aggrieved by the Minister’s decision to set aside the environmental clearance certificate which was issued to it by the Commissioner, the appellant appealed, in terms of s 51 of the Act, to this Court against the Minister’s decision. The appellant’s attack on the Minister’s decision was that there was no proper appeal for the Minister to consider, the second respondent had no locus standi to appeal to the Minister and the Minister violated the appellant’s right to a fair hearing and fair administrative action. The Minister and the second respondent opposed the appeal on a variety of grounds. The main ground on which they opposed the appeal is that the appellant’s appeal was allegedly not based on points of law only, but on factual matters.

Held that the second respondent’s appeal before the Minister was compliant with the Regulations made under the Environmental Management Act, 2007.

Held further that in a constitutional State, citizens are entitled to exercise their rights and they are entitled to approach courts, where there is uncertainty as to the law to determine their rights. The court thus found that, in the context of the Act, Mr Gaweseb has a legal grievance and is as such, an aggrieved person entitled to approach courts to determine his rights.

Held further that it is now well established in our law that an administrative act or decision, even if improperly taken, remains effectual until properly set aside and cannot just be ignored. Since the Minister extended the time within which to launch the appeal and the decision to extend the period within which to lodge a s 50 appeal is not the subject of a review application, that decision remains and the appeal was thus lodged within the extended period.

Held furthermore that the question whether or not the s 51 appeal hearing before the Minister violated the appellant’s rights conferred on him by Articles 12 and 18, is a question of law.

Held furthermore that if the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.

Uazengisa and Another v Mukuambi and 4 Others (A 298/2015) NAHCMD 353 (06 December 2017);

Headnote and Holding: 

In this case, the applicants sought to enforce the decision of the Royal House of Chief Kambazembi (a traditional authority), that allocated communal land to them.

Following the continued occupation of the three square kilometres of the land by the first and second respondents, the applicants decided to enforce the decision by the traditional authority in the court. 

The court analysing s. 24-26 of the Communal Land Reform Act, Act 5 of 2002 held that the traditional authority had the power to allocate customary land rights. However, upon the allocation of a customary land right, the applicant was required to notify the land board for registration of the land. The court observed that the applicant failed to do so and thus failed to establish a right that was capable of enforcement by the court.

Accordingly, the application was dismissed, and the applicants were directed to pay costs of the first and second respondents jointly and severally.

Mclaren Ian N.O and 3 others v Municipal Council of Windhoek and 2 Others (SA 33/2016) [2018] NASC 1 (17 January 2018);

Headnote and Holding: 

This was an appeal by a company and its liquidators against the decision of the lower court to dismiss their claim for the validity of a lease. The appellants claimed in the alternative that the decision of the respondent, the Municipal Council of Windhoek (“the council”) be reviewed and set aside. 

The main issues to be determined were, whether the council had validly cancelled the lease prior to the liquidators’ election to continue with it and whether the decision of the council was open to review by the court.

The respondent contended that the cancellation was caused by the appellants’ breach of a term of the contract, by discontinuance of its textile industry.  The respondent further contended that the appellants breached another term regarding sound environmental practices.

The court found that the respondent’s decision to terminate the lease was solely contractual and not administrative. On this basis therefore, the court held that the decision was not open to review on administrative law grounds.

Firstly, the court held that financial failure of a company, leading to liquidation, could not terminate a lease. Secondly, that the council failed to establish what the terms for an environmental friendly textile industry were. In conclusion, the court held that the company had in fact given notice to terminate the lease and that the notice was accepted by the respondent. Consequently, the lease had then ceased to exist.
Accordingly, the court dismissed the appeal with 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.