Court victory for the San
Judge blasts illegal invaders of tribal land
A landmark judgment ordering the eviction of 22 illegal invaders from the Na#Jaqna Conservancy last month highlighted the lack of government support and continued marginalisation of San communities in Namibia.
The judgment was described as a victory “for land rights of the poor people who are living in the margins of society,” said lawyer Norman Tjombe, who acted on behalf of the conservancy.
In the recently released reasons for the judgment, High Court judge Shafimana Ueitele took aim at the group of illegal invaders who refused for close to a decade to acknowledge their illegal occupation of parts of the conservancy.
The judge said the dispute about the land invasion pitted “one of the most marginalised communities of our society against some members of our society who, although historically disadvantaged, do have access to improve their legal resources.”
Furthermore, the judge said it was “disheartening” to hear the allegations that efforts to enlist the assistance of the responsible authorities, including the Otjozondjupa Communal Land Board and the Ministry of Environment and Tourism, to stop the illegal invasion “did not yield the required results”.
Judge Ueitele said the court took notice of the “continued struggle that many [of the San communities] still face to live dignified lives, free from poverty and discrimination, with access to social services for themselves and their children”.
He added that the illegal occupation and fencing of large tracts of land within the conservancy contributed to the continued and worsening struggles the San community face.
Moreover, the actions of the illegal settlers “negate all the efforts the government of Namibia has embarked upon to fight poverty among the most members of our society,” he found.
He emphasised that all Namibians have a constitutional obligation to promote “among all of us the dignity of the individual and the integrity of the nation”.
As such, state institutions should “do all in their power to ensure that we do not denigrate or further impoverish any section of our community”.
The judgement related to a case between the conservancy and 36 respondents, including the Ministry of Lands and Resettlement, the chairperson of the Otjozondjupa Land Board, the !Kung Traditional Authority and the Ministry of Environment and Tourism.
On 18 August, three years after the case went to court, Judge Ueitele ruled in favour of the conservancy and ordered that the illegal settlers have 60 days to vacate the conservancy and to remove their illegal fences.
Tjombe described the judgement as “ground breaking and far reaching”.
“For the first time there is a very loud judicial acknowledgement of the discrimination of the San communities in Namibia,” he commented.
He added that the judgment ensured that the “few land rights that are left after centuries of dispossession can now be protected under the existing laws of Namibia”.
Tjombe said the ruling would benefit individual communal farmers who are “dispossessed of land and therefore grazing and water as a result of the wealthier and the more powerful who fence off large tracts of land, thus privatising land which belongs to the community.”
Willem Odendaal of the Legal Assistance Centre (LAC), who has worked on behalf of the San community’s land issues since the start, said the judgement set a positive precedent for similar issues concerning communal land in Namibia.
He warned that comparable situations, including the erection of illegal fences and illegal grazing, continue to plague marginalised communities in Namibia.
He said the judgment would hopefully instil confidence in relevant authorities to enforce the law, including the Otjozondjupa Land Board, which in previous years hesitated to enforce the law.
In his judgement, Ueitele found that relevant sections in the Communal Land Reform Act stipulate that any allocation of a customary land right that is made by a chief or a traditional authority under Section 22, has no legal effect unless the allocation is ratified by the relevant communal land board.
He said with the exception of one respondent, none of the respondents could provide any proof of their application for land or grazing rights, nor could they prove that their applications had been approved by the land board.
“It therefore follows that all respondents except one have failed to rebut the allegations made by the applicants that they unlawfully occupy the areas within the conservancy.”
JANA-MARI SMITH
The judgment was described as a victory “for land rights of the poor people who are living in the margins of society,” said lawyer Norman Tjombe, who acted on behalf of the conservancy.
In the recently released reasons for the judgment, High Court judge Shafimana Ueitele took aim at the group of illegal invaders who refused for close to a decade to acknowledge their illegal occupation of parts of the conservancy.
The judge said the dispute about the land invasion pitted “one of the most marginalised communities of our society against some members of our society who, although historically disadvantaged, do have access to improve their legal resources.”
Furthermore, the judge said it was “disheartening” to hear the allegations that efforts to enlist the assistance of the responsible authorities, including the Otjozondjupa Communal Land Board and the Ministry of Environment and Tourism, to stop the illegal invasion “did not yield the required results”.
Judge Ueitele said the court took notice of the “continued struggle that many [of the San communities] still face to live dignified lives, free from poverty and discrimination, with access to social services for themselves and their children”.
He added that the illegal occupation and fencing of large tracts of land within the conservancy contributed to the continued and worsening struggles the San community face.
Moreover, the actions of the illegal settlers “negate all the efforts the government of Namibia has embarked upon to fight poverty among the most members of our society,” he found.
He emphasised that all Namibians have a constitutional obligation to promote “among all of us the dignity of the individual and the integrity of the nation”.
As such, state institutions should “do all in their power to ensure that we do not denigrate or further impoverish any section of our community”.
The judgement related to a case between the conservancy and 36 respondents, including the Ministry of Lands and Resettlement, the chairperson of the Otjozondjupa Land Board, the !Kung Traditional Authority and the Ministry of Environment and Tourism.
On 18 August, three years after the case went to court, Judge Ueitele ruled in favour of the conservancy and ordered that the illegal settlers have 60 days to vacate the conservancy and to remove their illegal fences.
Tjombe described the judgement as “ground breaking and far reaching”.
“For the first time there is a very loud judicial acknowledgement of the discrimination of the San communities in Namibia,” he commented.
He added that the judgment ensured that the “few land rights that are left after centuries of dispossession can now be protected under the existing laws of Namibia”.
Tjombe said the ruling would benefit individual communal farmers who are “dispossessed of land and therefore grazing and water as a result of the wealthier and the more powerful who fence off large tracts of land, thus privatising land which belongs to the community.”
Willem Odendaal of the Legal Assistance Centre (LAC), who has worked on behalf of the San community’s land issues since the start, said the judgement set a positive precedent for similar issues concerning communal land in Namibia.
He warned that comparable situations, including the erection of illegal fences and illegal grazing, continue to plague marginalised communities in Namibia.
He said the judgment would hopefully instil confidence in relevant authorities to enforce the law, including the Otjozondjupa Land Board, which in previous years hesitated to enforce the law.
In his judgement, Ueitele found that relevant sections in the Communal Land Reform Act stipulate that any allocation of a customary land right that is made by a chief or a traditional authority under Section 22, has no legal effect unless the allocation is ratified by the relevant communal land board.
He said with the exception of one respondent, none of the respondents could provide any proof of their application for land or grazing rights, nor could they prove that their applications had been approved by the land board.
“It therefore follows that all respondents except one have failed to rebut the allegations made by the applicants that they unlawfully occupy the areas within the conservancy.”
JANA-MARI SMITH
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