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This article first appeared in Legalbrief
UNDER its old, colonial name Namibia’s Caprivi Strip has seen many bitter military and ideological battles. Over the last 120 years Germany, the UK, SA, Zimbabwe (as Rhodesia), Angola, Zambia, Botswana and Namibia itself have all been involved there in warfare or political skirmishes. But though the last intense military conflict dates to around 2002, political disputes continue, one of which surfaced in the most recent judgment of Namibia’s apex supreme court.
The salient – a tongue of land stretching eastwards 450 km from Namibia’s north east corner – is now known in Namibia as the Zambezi Region. It’s an area particularly remote and challenging for effective governance. And it is here that the Mafwe Traditional Authority allocated a portion of communal land to Andrias Kashela in 1985.
He and his family lived on this land until his death in 2001. But during the last years of his life there was a major change in way land such as his was owned: after independence in 1990, all communal land became the property of the state but with the constitutional stipulation that this change in ownership was subject to the rights and obligations already existing on or over that land.
In 1995 the government transferred part of that communal land to the Katima Mulilo town council – without payment. When Kashela died in 2001 his only heir, Agnes Kashela, continued to live on the land originally allocated to her father.
Then the town council took steps that upset Kashela’s world: they rented out parts of the land she occupied and later offered it for sale to four individuals and business entities. She took the matter to court, claiming damages against the council for unjust enrichment. She said they had effectively expropriated her right in the land without compensation, something barred by the constitution and the law and therefore unlawful.
Kashela argued that her father had been lawfully allocated a customary land right which she inherited when he died. The Mafwe traditional authority that allocated the land to her father had the legal power to do so “according to custom and law”.
She said the council had unlawfully rented parts of her land to others despite the fact that she had “exclusive customary law rights” to it. The council’s actions amounted to expropriation for which she was legally entitled to compensation.
Cited as a party, the Namibian government did not participate in the litigation despite the important constitutional issues involved. The council however claimed that once the land was proclaimed “town land” it stopped being communal land and the communal land rights that used to exist were thus extinguished.
It should have been an easy case to resolve: the council had admitted liability by offering Kashela compensation at one stage, and it conceded that it had a policy of compensating people in her position. On those concessions alone, the case should have gone in Kashela’s favour. But the high court framed other questions to resolve and concluded that if she had any right to compensation it lay against the state and not the council, and that it had in any case prescribed.
Argument on appeal in the supreme court seems to have been fiery: the council’s lawyers said that under pre-independence law any rights over communal land were “at best, precarious”, able to be taken away on a whim. After independence those rights were no stronger. The court was unimpressed. The new constitutional dispensation was intended to infuse a culture of rationality and fairness into how the state dealt with its people. And the past injustice people had endured called for interpretations of the law that restored dignity, rather than undermining it.
The state, as owner of land, had social “obligations” that a private owner did not have and was to use land for the public good. When the newly independent state became the lawful owner of communal land on which most black people lived an immediate tension was created: the state had a legitimate interest in developing that land but local communities still needed land to live on and to provide for themselves. The notion that one was more important than the other was difficult to reconcile with the state’s duty to restore the “lost dignity” of marginalized communities.
The judges concluded that Kashela had a right to the land and that this right survived its proclamation as town land. The court was thus obliged to find a remedy to meet these facts: “It could not have been the intention of the framers of the Constitution to grant a right which was unenforceable by the courts,” said the judges, “for where there is a right, there must be a remedy to be fashioned by the court seized with the matter.” The remedy will depend on a number of factors including the evidence that is presented, but the court added that what will also be “placed in the scale” “is the extent of the interference, the dislocation and the improvements” on the land.
Writing for a unanimous court, the deputy chief justice, Petrus Damaseb, concluded, “I come to the conclusion that Kashela acquired a right of exclusive use and occupation of the land in dispute upon the passing of her father and that the right survived and attached to the land even after its proclamation as town land. That right is enforceable by the courts which must, in the case of breach, tailor a remedy to meet the circumstances of the facts.”
Her claim has now been sent back to the high court to decide whether, in the light of the supreme court decision on her rights over the land, she had made out a case for her claims for damages.
It’s a fascinating problem to consider, by SA as much as Namibia: if expropriation without compensation had been law in Namibia, for example, Kashela and others in a similar position could have been worse off than before independence. Now however, there are at least the grounds to argue for compensation – and for her to argue that compensation should do just that: compensate for the land taken from her through which she had been able to sustain herself.
