Read judgment

Community conflict over land and the best way to use it is still a major feature of Namibian litigation more than 30 years after independence.

The problem can be clearly seen in new decision by high court judge Shafimana Ueitele. This case is just one in a series that he and his colleagues have been asked to settle related to land use, particularly in the northern parts of the country.

Made desperate by drought, many Namibian livestock farmers in the areas bordering on Angola have moved south with their animals. But instead of being welcomed by local people sympathetic to their plight, they have found new systems in operation: new ideas and a new approach to land use in terms of which thousands of additional domestic animals are an unwelcome liability.


Targets of hostility, the new settlers are equally hostile to the people there before them and this tension escalates as the number of domestic animals increases.

Complicating the mix are ‘land grabbers’, wealthy people from outside who push in with livestock that they graze on commonage areas.

Typically, the legal cases arising from these complicated conditions involve applications with numbers of people on both sides and named members of communities asking that legal steps be approved against named incomers. Traditional leaders are also often involved by implication, perhaps because they are said to have given permission to the incomers to stay and graze their animals. The court is then asked to consider the ‘permits’ issued by the traditional leaders and decide whether they are valid.


The latest case illustrating these trends concerns the Anabeb Conservancy Committee acting against 37 named defendants (many whose surnames are not known), a communal land board and a traditional authority.

The conservancy says that the defendants are living in and grazing their livestock on the commonages of the communal area ‘zoned as areas exclusively for core wildlife and tourism’. They don’t have written permission from the Vita Traditional Authority to do so, and should therefore be evicted from the commonage.

The defendants dispute these claims and say they have been living in these village (on the commonages) for some time – in some cases even before the conservancy was established – and that it does not have the right to eject them.


The Anabeb Conservancy is a ‘communal conservancy’, held by the court to be a group of people living in a defined area, on communal ground, and who have formed a management body with specific aims: ‘managing the sustainable use of wildlife and other natural resources of the area they inhabit’.

Ueitele said that to understand the true nature of the dispute, one needs to understand what a community conservancy is.

The skewed land ownership and development left behind by South Africa at independence meant many species of wild animals were hunted ‘almost to extinction’ and that communal farmers were often in conflict with animals such as hippos and elephants that damaged their crops and thus their livelihoods.


In response, the government made it possible to set up recognised communal conservancies, as at Anabeb. Typically, they must have game management plans, hold AGMs and prepare financial reports. They focus on developing ‘photographic and hunting tourism’ along with certain indigenous plant products and handicrafts. Most often, these conservancies will sign joint-venture agreements with private lodges or hunting operators.

Annual game counts determine the hunting allowed in a year, with trophy hunting producing income that pays the salaries of game guards and anti-poaching activities, and meat harvesting, that provides additional protein for local communities.

According to the plaintiffs, Anabeb is one such properly registered communal conservancy managing the wildlife and other natural resources in its communal areas. But the defendants are now living in and grazing their livestock on the commonages of these communal areas zoned as exclusively for wildlife and tourism, and they do not have the proper authorisation to do so.


The defendants put up a variety of responses, some saying they no longer lived in the area, others that they have permission to live there, and yet others that the traditional authority in the area did not have the right to have them removed.

Counsel for the defendants argued that the conservancy committee did not show it had authorisation to bring action on its own behalf. But the judge said this misunderstood the situation and that the conservancy committee had the legal right to bring and defend legal action on behalf of the conservancy.

Certain defendants testified that they started settling in the disputed area from about 2005, and did so without permission of the Vita Traditional Authority.


They argued in their defence that their occupation of the land was ‘sanctioned’ by the Otjikaoko Traditional Authority – but they did not produce any evidence to back up this claim.

In addition, the law said that allocation of customary land rights by a chief or a traditional authority had no legal effect until it was ‘ratified by the relevant community land board’. Yet none of the defendants showed any documentary evidence of ratification.

Since the defendants had all failed to rebut the allegations made by the Anabeb conservancy, the court held that their occupation of the disputed areas was unlawful.

The judge ordered all the defendants living on the commonage to vacate the premises – plus they have been ordered to pay the legal costs of the case.

* 'A matter of justice', Legalbrief, 15 February 2022