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Rights to communal lands granted before the independence of Namibia are constitutionally protected and do not cease when the land becomes the property of a local authority, the Supreme Court said in a landmark ruling.
When the Namibian state took possession of the communal lands with the independence of the country in 1990, it assumed the obligation to look after the interests of the people living on these lands, said the acting chief justice Petrus Damaseb in an appeal judgment in which a region of the Zambezi The resident won last Friday a victory over the municipality of Katima Mulilo and confirmed and protected his rights on part of the communal lands.
The obligations to persons living on communal lands assumed by the Namibian government with the independence of the country imply the recognition and respect of the right of members of a community to live on these lands, exploit them and provide for them, "said the Associate Chief Justice at the Supreme Court. Judgment of the Court on the appeal of a Zambezi resident, Agnes Kahimbi Mufaya (nee Kashela), against a High Court judgment of last March.
As the owner of communal land, the state has social obligations that a private landlord does not have, said Judge Damaseb, adding, "He must use these lands for the sake of public".
When in 1990 the state became the rightful owner of the communal lands on which most of the country's blacks live, a legitimate interest on the part of the state was to develop these areas and set up infrastructure on communal lands and to provide land on which to continue to live and support themselves, "added the Associate Chief Justice.
"It is difficult to reconcile the notion that one was more important than the other with the Namibian state's duty to look after the well-being of its marginalized communities and restore their dignity." lost, "he said.
Judge Damaseb made the remarks in a dispute between Mufaya and Katima Mulilo's municipal council after common lands on which the deceased father of Mufaya obtained rights in 1985 were transferred to city council in 1995. .
Mufaya's father, Andrias Kashela, was given a portion of the commune's land by the head of the traditional Mafwe authority in 1985. She continued to live on the land in question after her death in 2001.
However, after the land was transferred to Katima Mulilo City Hall in 1995, the city council rented part of the land occupied by Mufaya and later sold it to five buyers.
In 2012, she sued the city council, the government and the buyers of the land, alleging that the city council had illegally taken over part of the land on which she had acquired rights to her father's death. It claimed NZ $ 720,000 from the council because of the sums it would have received when renting certain parts of the land, as well as N $ 2.4 million, the total price at which the council proposed the sale of the land. ground. the buyers.
Before the High Court, a judge dismissed his claim after finding that, although the customary rights to lands attributed to the late Kashela were acquired by Mufaya upon his father's death, those rights ceased to exist when the ownership of the land has been surrendered. transferred to the town hall.
Before the independence of Namibia, successive colonial administrations treated the black people of the country unfairly in terms of ownership and access to land, and regardless of the insignificant rights enjoyed by blacks, the Associate Chief Justice noted in his judgment.
It could not be true that the transfer of all communal lands to the state at independence would have extinguished the communal land rights existing at this stage, without the persons concerned having recourse to court, said Judge Damaseb.
The fact that land is no longer communal land would not necessarily deprive the occupier of these lands of the protection conferred by Schedule 5 of the Constitution, which states that the communal lands have been transferred to the Government. "Subject to any existing right [or] obligation "on the ground, the judge also noted.
In concluding that Mufaya had acquired an exclusive right to use and occupy the land upon his father's death and that this right had survived the proclamation of the land forming part of the village of Katima Mulilo, the The court ordered the referral of the case to the High Court for Mufaya's claim to be heard and decided.
Deputy Judges Fred Chomba and Yvonne Mokgoro concurred with the Vice-President's decision.
Mufaya was represented by the lawyer of the legal aid center Willem Odendaal. Gerson Narib represented the city council when the appeal was heard on Oct. 2.
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