Eviction from communal land only by chief or traditional authority - court

A small-scale farmer in the far north of Namibia wanted to evict his cousin from the same piece of land because the cousin was ignoring conditions aimed at protecting the highly-sensitive veld. But Judge Shafimana Ueitele found that the land occupation right did not give exclusivity – or the right to evict anyone from the land. Instead, that right belongs to the local chief or traditional authority.  

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When part-time farmer, Matti Toivo Ndevahoma, allowed his counsin, Vilho Shimwooshili, to occupy customary land in the northern Namibia area of Eengolo-Ondjiina, he set what may seem to readers like perfectly reasonably conditions, particularly in such an ecologically sensitive area.

Vilho was not to keep more than 120 head of cattle. He had to contribute towards the installation and maintenance of the water infrastructure. Finally, he had to contribute towards the upkeep and maintenance of the fence around the area.

According to Matti, Vilho breached these conditions. As a result Matti withdrew his permission for Vilho to occupy Eengolo-Ondjiina. Vilho is now living there without permission and Matti wants him to leave. And that, in a nutshell, is how the cousins, Matti and Vilho, found themselves in the high court, before Judge Shafimana Ueitele, arguing about the nuances of the law on communal land rights.

Judge Ueitele, the most courteous of judges, explained at the start of the decision that he would be referring to the parties by their first names: he meant no disrespect but did so simply for convenience. Presumably this had at least something to do with the length of their surnames and so, for similar reasons of convenience, I will follow the judge’s example.

Eengolo-Ondjiina, almost 2527 hectares in extent, lies in the very north of Namibia, right on the border with Angola. Matti’s father had occupied Eengolo-Ondjiina, with the approval of the local traditional authority. Then his nephews arrived on the scene, among them Matti and, later, Vilho.

Matti said he took over the management of the area from 2017. He was given a certificate of leasehold and signed a notarial lease agreement with the government. After that, he had given Vilho a conditional occupational right. But now that Vilho failed to observe the conditions set by Matti, however, he should vacate the area.

Vilho in turn said that the customary land right on which Matti based his claim for Vilho’s eviction was not clearly established and that the court could thus not enforce it. He also said that communal land was not exclusive, according to the Communal Land Reform Act of 2002, and so Matti could not require him to quit. Nor could Matti approach the high court to evict him.

Judge Ueitele’s decision goes through the legislation relevant to the dispute, explaining carefully so that both sides will understand, the meaning and effect of each section.

He found that Matti was granted a right of leasehold by the Ohangwena Communal Land Board over Eengolo-Ondjiina. Although Matti pleaded in the alternative that he was allocated a customary land right, this was inaccurate.

He also found that Matti’s claim that the right of leasehold he was granted was “exclusive to him” was fallacious. The law “clearly provides that communial land vests in the state” and the state holds this land “in trust for the benefit of the traditional communities residing in those areas. This clearly excludes the concept of exclusivity.”

According to Judge Ueitele, Vilho had occupied and utilized the communal land at Eengolo-Ondjiina since 1994. When the new law on communal land came into effect in 2003, it provided that someone in Vilho’s position would continue to occupy the land – in this case Eengolo-Ondjiina – under the same terms and conditions as before. In addition, the notarial lease agreement between Matti and the government confirms that as leaseholder Matti must occupy Eengolo-Ondjiina with Vilho.

Then came the crucial part: did Matti’s right of leasehold give him the right to bring an eviction case against Vilho?

“I answer this question in the negative,” said Judge Ueitele. Matti did not have the power to evict Vilho or anyone else. The law gave power to a chief or a traditional authority to bring legal action for the eviction of someone who occupies communal land – not anyone else. Thus, Matti did not have the legal standing to bring the action against his cousin. Not only was his case thrown out of court, but Matti was also to pay Vilho’s legal costs.

Suppose that Matti’s version of events was correct, however, and that Vilho indeed refused to limit the number of cattle he kept or to help with the water infrastructure, it seems that the correct way for Matti to have acted would have been to approach the local traditional authorities and persuade them to take action. For anyone concerned with the sustainable use of highly sensitive land such as that in the northern areas of Namibia this will be a comfort: it is essential that some method should exist to enforce important issues like the number of cattle allowed per hectare, that they should be given adequate water and that they should be properly fenced to prevent damage to anyone else’s land.