Oukwanyama victorious in land dispute with Ondonga

In his judgement in the High Court yesterday morning, Acting Judge Kobus Miller struck the application with costs due to that omission. The Oukwanyama Traditional Authority had raised the point that the Ondonga Traditional Authority had failed to join all necessary parties with a direct and substantial interest in the outcome of the application. In his detailed judgement, Judge Miller stressed that it does not take a genius to understand and agree that the communal land rights holders, which include customary land rights or rights of leasehold, as well as grazing rights, will be affected by the outcome of the application. “These persons are not before court - especially those that would have to fall under another traditional authority should the said agreement be enforced,” Miller emphasised. According to him the duty to have all necessary parties before court is enshrined in the Namibian Constitution under the right to be heard and failure to observe this provision was a fatal omission. The dispute concerned the validity of an agreement entered into between King Immanuel Kauluma Elifas of the Ondonga and the late King Mwetupunga Shelungu of the Oukwanyama. The written agreement entered into on March 14, 2004 at Oshakati concerned a border dispute between the two traditional authorities. In terms of the agreement the parties determined the geographical borders and each party was allocated an area over which to exercise its jurisdiction. However, Oukwanyama Queen Martha Mwadinomho Kristian Nelumbu contested the validity of the agreement on the grounds that it is invalid, because their representative was critically ill and frail and was duped into signing the agreement. Accordingly, she said, no prior negotiations or consultations were held with the subjects and as such the late king had no authority to alienate land that belonged to the communities. A further bone of contention was that the area over which the Ondonga Traditional Authority exercises authority is inhabited by the Oukwanyama Traditional Authority’s subjects. The Oukwanyama thus denied the validity and the enforceability of the agreement. It was on this basis that the Ondonga Traditional Authority approached the court for an order to declare the agreement valid and enforceable. Miller said the point of non-joinder was based on the grounds that the applicant was seeking an order to enforce the agreement. If enforced large tracts of communal land would be transferred to the Ondonga. The Oukwanyama Authority claimed the land in question falls within the areas defined as communal areas and by virtue of the provisions of the Communal Land Reform Act, the land in dispute is vested with the State. They maintained it is on this basis that the State has a direct and substantial interest in the outcome of the application, and accordingly, should have been joined to the application. The Council of Traditional Leaders should also have been joined as it had an obvious and substantial interest in the application. The Communal Land Board was also cited as an interested party as well as residents and farmers within the area of dispute who are involved in livestock and crop farming. The Ondonga Authority had argued the points were spurious and claimed that the agreement pertained only to traditional jurisdiction over certain areas by the respective authorities, not the transfer of any communal land. They therefore submitted that the respondents’ contention was misplaced and unsustainable. WINDHOEK FRED GOEIEMAN