Ongwediva family loses urgent bid to stop eviction

The High Court in Oshakati has dismissed an urgent application by two sisters seeking to halt their eviction from a disputed Ongwediva property.

The court ruled they lacked the legal standing to challenge ownership in their personal capacities despite alleging the property was fraudulently transferred from their late mother’s estate.

Acting judge Marlene Tommasi delivered the ruling on 29 April in a matter involving sisters Ester Martin and Emerita Amagulu against businessman Willbard Uushona Shiimi and several respondents, including the Ongwediva Town Council.

The court found that only the executor or representative of a deceased estate may institute proceedings over estate assets unless exceptional circumstances exist. Tommasi ruled no such circumstances had been established.

Martin (66) had asked the court to suspend an eviction order, rescind an earlier summary judgment granted in Shiimi’s favour and allow the sisters to intervene in the main case. She argued she had never been cited in the original proceedings despite living on the property since birth.

Court documents stated that Martin lived on the property with 10 children and 15 grandchildren. She said she only learnt of the eviction in March when the deputy sheriff served notices to vacate.

A family member, Alina Elia, confirmed the family had been evicted by the time of reporting.

“They brought the police and told us we had to move. We are now squeezed into one room in an open space nearby. We could not take anything from the house except the corrugated iron that served as our boundary wall,” she said.

Claims of fraud

The sisters claimed the land originally belonged to their parents under the Oukwanyama Traditional Authority before it became part of Ongwediva township and was later donated by the town council to their late mother.

After their mother’s death in January 2022, they allegedly discovered the property had first been transferred to Martin’s daughter, Jordan Mutatabikwa, and her husband, Brian Mutatabikwa, before being sold to Shiimi in 2024 for N$1.285 million.

They alleged the transfers were fraudulent, claiming their late mother’s signatures on transfer documents differed from her usual mark, as she was functionally illiterate and typically signed with a thumbprint or cross. They further alleged the granddaughter admitted taking her grandmother’s identity documents without permission and signing documents to register the property in her own name to access a government housing subsidy.

Shiimi denied any wrongdoing, maintaining he lawfully purchased the property from the registered owners. He argued the sisters had delayed reporting their mother’s estate and that occupying the property did not give them ownership rights or standing to challenge the transfers.

Although Tommasi rejected Shiimi’s argument that the urgency of the matter had already been determined in earlier proceedings, she upheld his objection on legal standing.

The court ruled that even if the transfers were later declared invalid, the property would revert to the deceased estate, meaning any action to recover it had to be brought by the estate representative rather than individual heirs.

The application was dismissed, the objection to the sisters’ legal standing upheld, no costs order was made and the interlocutory application was finalised.

Fresh attempt

The family’s lawyer, Slogan Matheus, said the application failed on a technicality because Martin brought it in her personal capacity rather than as representative of her late mother’s estate.

“The technical point that was upheld by the court was only dilatory and does not defeat Meme Martin’s claim to the property,” Matheus said.

He said a fresh High Court action has since been filed on behalf of Martin, in her representative capacity, seeking to declare both property transfers invalid and restore ownership to the deceased estate. The matter is awaiting allocation for a case planning conference.

Ongwediva mayor Naemi Amuthenu said the town council’s involvement ended when it transferred the property to the late mother of the sisters, adding that the subsequent sale was a private transaction beyond the council’s control.