A new supreme court decision, delivered just in time for Namibia’s March 21 Independence Day, deals with preliminary problems in a major land claim that, if successful, would impact on the entire country. The problems, related to legal standing, were identified by eight members of the Hai||om tribal group who want to litigate an extraordinarily wide-ranging list of claims.
Their six demands include an ownership claim aimed at 11 farms in the Etosha National Park, or their market value, estimated at virtually N$4billion. They also demand the right to develop the land in the park plus compensation for being excluded from its development in the past.
They want exclusive access to a part of the park where they can ‘practise their culture and religion and carry on their traditional way of life’. Further, they want 23 000 square kilometres to be allocated to them and an undertaking that steps will be taken to compensate them ‘for the injustices they have suffered’.
But the eight members of the Hai||om have a major problem if they are to get this litigation off the ground: Namibian law does not contemplate class action. So how are they to get standing to bring the action?
They want to lodge the claims in their individual capacities, as well as on behalf of the Hai||om people as a collective, and on behalf of the individual members of the Hai||om people.
There is a traditional authority, established by law to represent the interests of the Hai||om, but they say this is not a suitable vehicle through which to bring the intended civil claims. This is because the traditional authority is required by the Traditional Authorities Act (TAA) to support the policies of the Windhoek government, yet this is the very entity against which they want to claim.
The eight therefore asked first the high court and then, when that failed, the supreme court, for leave to represent the Hai||om people or the Hai||om as members of a minority group and ‘the individuals who constitute the Hai||om’ in an action on their behalf to litigate the six claims.
But how will they collect the people on whose behalf they want to bring the action, particularly given their numbers and the fact that they have been dispersed and marginalised?
The application envisages the court playing a major role in adjudicating who should be allowed onto a Hai||om register for participation in the proposed legal action.
For one, they want they court to direct that their legal team may continue to add to a register, ‘such persons who are accepted as Hai||om’ in terms of a process outlined in their application, a process that will ‘close’ six months from when the court approves such a step.
The action that the eight want to bring is supported by a number of basic propositions, they say. These include that in pre-colonial times, the Hai||om occupied the land now in dispute ‘which had thereby become their ancestral land’. Successive colonial administrations recognised their occupation of the land, then stripped them of it. Following independence in 1990, the new government failed to give the Hai||om back their ancestral land and instead finalised their dispossession from land that is now being ‘beneficially occupied by others including the government, companies and other dominant groups’.
The final pillar in support of their action is that their claim to this land is ‘guaranteed under the Namibian constitution’, via articles that guarantee the right to property and to just compensation on expropriation, as well as the right to maintain and practice one’s culture. Further, they argue that they are supported in their claim by international law.
The government strongly opposed the planned action to set up a system to collect litigants who would be added to a ‘register’ of those bringing the action. The government further denied that the Hai||om have not benefitted from official development projects. Further, by the time the present post-independence constitution came into force, the eviction of the Hai||om was ‘complete’ and their rights had already been ‘extinguished’.
The Hai||om traditional authority also opposed the application by the eight, saying they were trying to ‘usurp’ the chief’s functions.
When the high court dismissed their application, holding that the traditional authority was the appropriate, indeed the only, vehicle through which such a claim could be lodged, the eight turned to the supreme court.
There, deputy chief justice Petrus Damaseb, writing for a unanimous court, held that the high court was incorrect in concluding that the TAA ‘covers the field’ and was the only mechanism through which to bring their intended legal action.
This did not mean, however, that the eight should win their appeal.
Damaseb said the ‘stakes were high’ in the case, ‘given the unprecedented and far-reaching claims’ involved, which would include argument that the Hai||om were entitled to ‘self-determination’.
In addition, the proposed claims were based on circumstances that were not unique to the Hai||om and could have implications ‘for most indigenous communities in Namibia’. It would thus be an ‘understatement’ to conclude that the government would defend the proposed litigation ‘with vigour’. This was the reality behind the argument of the government that the traditional authority, funded by the same government, would be able to prosecute the proposed claims on an equal basis with the government.
But if it were acknowledged that the TAA did not ‘cover the field’, did that mean the court should grant the application by the eight to the elaborate and unprecedented procedural system they proposed, by which to bring the claims?
Damaseb said there were other forms of legal capacity that could be used and that ‘if there are adequate remedies available in the legal system, there would be no justification for forging a new remedy.’
One mentioned by Damaseb was a ‘universitas’, a form of voluntary association used every day to create clubs and church organisations.
The Hai||om could also have made customary law rules, within the TAA framework, on how the community would be represented in litigation.
These were merely examples of alternatives to the remedy proposed by the eight in their application, and Damaseb pointed out the heavy burden that the proposed system would put on the court by way of inevitable, incessant litigation.
In addition to all the other problems, the eight had not convinced the court that they were ‘suitable persons to represent the Hai||om’ and to decide who were members of the community and who should benefit from their proposed action.
The appeal judgment represents a mixed bag for the eight Hai||om: they have lost their appeal and will have to reconsider their options, but the highest court also made it clear, contrary to the strongly held views of the government, that the TAA does not ‘cover the field’ and that they are legally entitled to find and develop an alternative form of representation.
In addition, because the issues involved were held by the court to be ‘of great moment in contemporary Namibia’, no costs order was made against them even though the eight lost their appeal.