Customary Law – Communal Land – Communal land rights – Power to evict a leaseholder from a communal land – Whether the Communal Land Reform Act, 2002 empowers a leaseholder to cancel a sub-lease and evict a sub lessee from a communal land area.
The uncle of the plaintiff and the first defendant had occupied an area called Eengolo-Ondjiina which forms part of communal land as contemplated in s 15 of the Communal Land Reform Act, 2002 with the blessing of the Oukwanyama Traditional Authority.
As from 2017, the plaintiff had taken over the management of Eengolo-Ondjiina. In April 2015, the plaintiff signed a Notarial Lease Agreement in respect of Eengolo-Ondjiina with the Government of the Republic of Namibia and during April 2017, the plaintiff was issued with a Certificate of Leasehold in terms of s 33 and Regulation 16 of the Agricultural Communal Land Reform Act, 2002.
After the plaintiff was issued with the certificate of leasehold, a dispute arose between the plaintiff and the first defendant, with the plaintiff alleging that, he holds exclusive leasehold or customary land rights in respect of Eengolo-Ondjiina and that he had given the first defendant the right to occupy Eengolo-Ondjiina on certain conditions. Alleging that the first defendant failed to adhere to the conditions in terms of which he was granted permission to occupy Eengolo-Ondjiina, the plaintiff gave notice to the first defendant to vacate Eengolo-Ondjiina by the end of June 2017. The first defendant did not vacate Eengolo-Ondjiina as demanded by the plaintiff and the plaintiff commenced these proceedings.
The plaintiff’s primary bone of contention was that because of the first defendant’s breach of the conditions in terms of which he was granted permission to occupy Eengolo-Ondjiina, he has withdrawn that permission and the first defendant now occupied Eengolo-Ondjiina without permission, and it is on that ground that he seeks the eviction of the defendant from Eengolo-Ondjiina.
The first defendant was however of the view that the leasehold on which the plaintiff relies is in respect of communal land as contemplated in s 19 of the Communal Land Reform Act, 2002 which is not exclusive and is subject to the rights of others, including his (first defendant) right to occupy such land and further that it does not confer a right on the plaintiff to approach the High Court and evict him.
Held that despite the fact that the concept of communal land defies precise definition, it has, in Namibia, generally been understood that communal land include land owned in trust by the government but administered by traditional authorities who make allocation of parcels of land to members of the community, ordinarily but not exclusively to live thereon, till and or graze thereon and generally to make a living, without acquiring ownership or title to that land.
Held further that s17 of the Communal Land Reform Act, 2002 makes it very clear that all communal land areas belong to the State, which must keep the land in trust for the benefit of the traditional communities living in those areas. The State is enjoined to put systems in place to make sure that communal lands are administered and managed in the interests of those living in those areas. The Act also makes it clear that communal land cannot be sold as freehold land to any person.
Held further that communal lands may only be occupied or used in line with a right granted under the Communal Land Reform Act, 2002. This includes existing customary land rights (under s 28) and other existing rights to use communal land (under s 35). A person who occupies communal land without having the right to do so can be evicted by a Chief, Traditional Authority or a Communal Land Board.