Wapulile v Chairman Ohangwena Communal Land Board N.O (A 265/2013) [2013] NAHCMD 340 (15 November 2013);

Headnote and Holding: 

The matter focused on the lawfulness of the removal of fencing surrounding land for agricultural purposes in a communal area. 

The respondent, Ohangwena Communal Board, established under s 2 of the Communal Land Reform Act 5 of 2002 removed fencing erected by the applicant, around a tract of agricultural land in a communal area, which the applicant alleged had been duly allocated to him in 1986. 

The applicant approached the High Court on an urgent basis for an interdict to restrain the board from removing the fencing surrounding the grazing farm and from disposing of the fencing material which had already been removed. 

The applicant maintained that in terms of s 18(b) read with s 28(2)(b) and 28(3) of the act, he is entitled to retain the fences which he had erected on and around the farm. The court found that the applicant had erected the perimeter fence prior to the coming into force of the Act and his intention to apply for authorisation for the retention of the perimeter fence, meant that the removal of the fence by the respondent was unlawful and in conflict with the act.  

Given the entitlement to retain a fence if the statutory requisites in s 28(80) are met, it would be unlawful for boards to remove such fencing where applicants intend to make such application prior to the expiration of the period set by the Minister pursuant to s 18. 

The interdictory relief was granted.

Erongo Regional Council and Others v Wlotzkasbaken Home Owners Association and Another (SA 6/2008) [2009] NASC 2 (17 March 2009);

Headnote and Holding: 

This was an appeal against a judgment of the High Court which ordered the appellants to comply with the terms of a settlement agreement entered into by the parties on 10 November 2006 and later became an order of court. The first appellant was an elected body established in terms of the Regional Councils Act 22 of 1992. The first respondent was a voluntary association representing 104 members out of 110 persons who were lessees of sites in a holiday resort and fishing village of Wlotzkasbaken under the jurisdiction of the first appellant.

The first appellant advertised plots for lease without distinguishing between those already leased to the respondents and other vacant sites, which aggrieved the respondents and was interpreted as a breach of their right of pre-emption. The issues for determination were: the meaning of clause 2 of the 2006 agreement in the context of previous agreements and whether the advertisement was signaling an intention to no longer be bound by the 2006 agreement.

The court deduced that the agreements showed that in each instance the parties agreed to certain rights which would ensure that those existing leaseholders would be able, if so advised, to convert their lease holding into property rights. In their agreement with the appellants, the respondents acquired the right to have all the plots sold once the township was proclaimed. Therefore, the intention to lease those plots was a breach of the right of the respondents. Accordingly, the appellants’ appeal was dismissed with costs.

Namibia Grape Growers and Exporters Association and Others v Ministry of Mines and Energy and Others (SA14/02 ) [2004] NASC 6 (25 November 2004);

Headnote and Holding: 

This case was an appeal in the Supreme Court of Namibia against a judgment that dismissed the application brought by the appellants on an urgent basis and discharging a court order issued on 5 May 2000.  This matter concerned provisions of the Minerals (Prospecting and Mining) Act No. 33 of 1992. An Exclusive Prospecting Licence 2101 (EPL 2101) was transferred to the third respondent, involved in diamond mining, on 25 June 1997 but it was alleged that its renewal happened without any notice to the landowner, involved in growing and marketing grapes, and who is one of the appellants in the case. The third respondent intended to excavate four pits of which two were situated within the area demarcated for further grape cultivation.

The appeal focused on three main issues, namely the constitutionality of Part XV of the Minerals Act, the review application regarding the renewal of EPL 2101 in 1998 and the application based on the provisions of section 52 of the same act.  

The court concluded that Part XV was enacted in the public interest and for a legitimate object and is a reasonable mechanism whereby similar contesting rights are balanced to ensure equal protection of those rights in terms of the Constitution.  It was on this basis that it could not be said that the provisions of Part XV of the Minerals Act are unconstitutional.  Accordingly, the appellants’ appeal was dismissed with costs including those for the postponement of the appeal and further argument.

Moly-Copper Mining and Exploration Company (SWA) Limited v IMCOR Zinc (Pty) Ltd and Another (SA 3/94) [1994] NASC 7 (08 December 1994);

Headnote and Holding: 

The matter dealt with the interpretation of particular terms of a prospecting agreement which arose from the mining of a grant area.
The Supreme Court considered whether to declare that clause 8 (a) created an obligation to provide sufficient funds on a continuing basis. The test was whether the obligation to fund was limited. The appellant’s argument was based upon a literal reading which the court held was absurd as it would result in regarding the obligation as an unlimited one. Accordingly, the court held that the express terms of the clause contemplated further funding to be determined by a further mutual agreement.
The court considered whether clause 10 entitled the second respondent to call up its loan. The court reasoned that if the loan was never repayable it would not be a loan. The court held that the respondent, Iscor, was not precluded from calling up its loan and to say that it would be is far too wide.
The court considered whether to grant the declaratory order in terms of clause 9. The court found the prayer to be too vague to warrant a declaration. Accordingly, the court held that the declarator sought was without substance.
In order for a declarator to be granted the issue which the declarator seeks to address must be in dispute between the parties. In the circumstances there was no material time when there had been a dispute about the continued existence of the agreement. Accordingly, the court held that it would not grant the declarator sought.
The appeal was dismissed with costs.