Public interest in environment

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defendant’s breach of the conditions in terms of which he was granted permission to occupy Eengolo-Ondjiina, he has withdrawn that permission and the first defendant now occupied Eengolo-Ondjiina without permission, and it is on that ground that he seeks the eviction of the defendant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

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.

Municipal Council of Windhoek v Claudia Properties CC and Another (A 117/2010) [2014] NAHCMD 332 (14 November 2014);

Headnote and Holding: 

The court considered an application for a mandamus by the applicant, as a result of the respondents having applied for the consolidation and rezoning of 2 plots of land. The respondents had their application conditionally approved upon submitting an engineer’s drawing for the erection of retaining walls as part of flood protection and to create 54 client accessible parking bays. 

The court considered if there was a contravention of s 44(5) of the applicant’s town planning scheme in accordance with the Town Planning Ordinance No 18 of 1954 as amended. Without drawing plans being submitted to the applicant for approval, the respondents admitted that a temporary corrugated iron wall was erected on the riverbank which was next to the two properties. On their own admission, the respondents did not create the 54 accessible parking bays. 

The court found that the respondents failed to adhere to the condition of their approved application, so they were ordered to remove the illegally constructed corrugated iron wall, to submit an engineer’s drawing for the erection of the retaining walls to be constructed on the properties, within three months of the order. They were also ordered to construct the retaining wall within six months from the date of the approval by the applicant of the engineering drawing, as well as to remove all building materials and rubble from one plot in order to create 54 accessible parking bays on one of the properties. Respondents were ordered to pay applicant’s 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.