QUESTION 1

In the context of disputed communal land in Namibia, courts follow specific

methodologies to determine a "customary law tenure right." Two relevant cases to
consider are Ndevahoma v Shimwooshili and Others1 and Mbai v Minister of Land
Reform).2 Additionally, the Supreme Court judgment in the case of Kahimbi Kashela v
Katima Mulilo Town Council and Others (SA-2017/15) [2018] NASC 409 (16 November
2018)3, delivered by Damaseb DCJ, holds significance.
When courts determine customary law tenure rights, particularly in the context of
contested communal land in Namibia, it is essential to analyze pertinent legislation and
ensure constitutional compliance. Let's explore this important detail in more details:

(a) Communal Land Reform Act4

An important piece of law in Namibia that controls communal land rights is the
Communal Land Reform Act. It offers a framework for the legal acknowledgment,
documentation, and administration of indigenous people's land rights. The requirements
of this act are examined by the courts to make sure the prevailing practices under
consideration comply with its requirements.
The Act also outlines the procedures for distributing, registering, and managing
communal land rights with an emphasis on fairness and openness. The question of
whether disputed customary practices follow these statutory procedures is evaluated by
the courts. In the case of Mbai v Minister of Land Reform, the applicant applied for order
inter alia to review and set aside the decision of the Communal Land Board to evict him
from a piece of land situated at Otjekende village – And further to review and set aside
the decision of the Land Appeals Tribunal which confirmed the decision of the
Communal Land Board – The applicant further sought an order that the matter be
remitted to the Traditional Authority for reconsideration. The court had to anaylse and
consider section 22 of Communal land Reform Act that states that "To request the
allocation of a customary land right for communal land:

(I) You need to complete a written application using the specified form.

1
Mbai v Minister of Land Reform [2020] NAHCMD 425 (18 September 2020)
2
(26 of 2017) [2017] NAHCNLD 83 (15 August 2017)
3
Ndevahoma v Shimooshili and Others (HC-MD-CIV-ACT-OTH 3184 of 2017) [2019] NAHCMD 32 (25 January 2019)
4
Rules of The Magistrate Court Act no.32 of 1944
 (ii) Submit the application to the Chief of the traditional community where the land
you're interested in is located."-Sentence 34.

Furthermore, Courts recognize customary law tenure as a legitimate form of land

ownership in Namibia. They acknowledge that communal land is held under customary
law, and individuals or communities may have rights to use and occupy such land
based on customary practices. In the case of Ndevahoma v Shimwooshili and Others
the court held that only those who have been given a right under the Communal Land
Reform Act of 2002 may occupy or use communal lands. This includes current rights to
use common land (under s. 35) and existing customary land rights (under s. 28). A
Chief, a Traditional Authority, or a Communal Land Board have the authority to evict
someone who is on communal land without authorization.

This is after the first defendant, the plaintiff's uncle, got permission from the
Oukwanyama Traditional Authority to occupy a piece of land known as Eengolo-
Ondjiina, which is considered communal land under section 15 of the Communal Land
Reform Act of 2002.

As of 2017 saw the plaintiff take over Eengolo-Ondjiina's management. The Plaintiff
entered into a Notarial Lease Agreement with the Government of the Republic of
Namibia in April 2015 regarding Eengolo-Ondjiina, and in April 2017, the Plaintiff
received a Certificate of Leasehold under Section 33 and Regulation 16 of the
Agricultural Communal Land Reform Act, 2002.

(b) Namibian Constitution5

The highest judicial authority in Namibia is the Constitution. It establishes the nation's
governing structure and essential values. It is binding on all people, institutions,
including traditional authority, and governmental bodies because it is the supreme law
of the land.

All people in Namibia have their fundamental rights and freedoms protected by the
Constitution. These freedoms cover a wide range of ideals, such as the rights to (a)
equality, to be treated fairly in article 10. A key tenet of the legal system is the
Constitution's commitment to equality and non-discrimination. It implies that no one
should be subjected to unfair or discriminatory treatment because of traits like race,
gender, ethnicity, or any other protected qualities.

Courts look at whether customary practices discriminate against particular groups or

people based on illegal reasons. It is conceivable that a custom will be considered
5
Supreme Court Act 59 of 1959
unlawful if it is determined to be discriminatory. (b) To own property in article 16, and
(C) to live with dignity in article 8. In all facets of society, including traditional practices
and land conflicts, courts are essential in ensuring that these constitutional rights are
respected and preserved.

The Namibian Constitution's Article 66(2) acknowledges the significance of customary

law. As long as they stay within the Constitution's bounds, it permits traditional
authorities and leaders to decide on issues of personal and civil law.This clause
recognizes the coexistence of statutory law and customary law within Namibian law. It
also specifies the limitations on the use of customary practices and judgments.

Customary practices fall under the court's purview under the Constitution. This implies
that a customary law disagreement can be brought before the courts for resolution if it
ever arises. The constitutionality and applicability of the disputed customary practices
must be decided by the courts. They make sure that, while respected, customary law
does not infringe upon basic rights or constitutional principles.

(c) Balancing Interests:

An intricate and crucial part of resolving land disputes is finding a balance between
individual rights and collective interests, particularly when it comes to communal land in
Namibia. The preservation of common land as a shared resource and the protection of
individual rights, such as equality and property rights, must coexist in harmony. We can
use pertinent situations and examples to provide further detail:

i) Case of Kamburona v Permanent Secretary, Ministry of Lands and

Resettlement6

The court had to resolve a disagreement on the apportionment of land based on gender
in this case. The lawsuit claimed that because men were given preference over women
in the allocation practice, it was discriminatory. In its ruling, the court emphasized the
necessity to strike a balance between collective interests and individual rights.

The court decided that while if common land was crucial for the community's overall
welfare, it shouldn't be distributed in a way that is biased against any one group based
on gender. The ruling underscored how crucial it is to respect the fundamental
guarantees of equality and against discrimination, even when it comes to issues
involving common land.
6
(SA 16 of 2019) [2021] NASC 5 (29 March 2021)
 ii) Case of Kahimbi Kashela v Katima Mulilo Town Council and Others [2018]
NASC 409:

In the context of contested community land, this case is crucial. Damaseb DCJ stressed
the importance of striking a balance between communal interests, traditional beliefs,
and constitutional rights in the Supreme Court's ruling.

Residents were being evicted from land that a local municipality wanted to develop
urbanly. The court recognized both the citizens' rights to common property and the
larger public interest in urban development.

While communal land rights and customary practices were important, the court
highlighted that they should only be used in accordance with the law and the
Constitution. It emphasized the responsibility of local authorities to strike a balance
between community interests and overarching developmental objectives.

iii) Balancing Vulnerable Groups:

Courts frequently deal with matters involving weaker groups that may be
disproportionately impacted by community land practices, such as women, the elderly,
or marginalized communities. Courts are essential in preventing unfair disadvantage for
these groups.For instance, if a customary practice denies widows or orphans the ability
to own land, courts may step in to preserve their rights and make sure they don't go
without a place to live.

QUESTION 2

In the case of Katjivikua v The Magistrate: Magisterial District of Gobabis and Another
2012 (1) NR 150 (HC)7 Corbett AJ held that "gross irregularities" in a proceeding in the
lower court can be reviewed both under section 20 of the High Court8 and under the
inherent powers of the High Court at common law.
When appealing an order or decision of a community court, the process differs
depending on whether the appeal is made to the Magistrate Court or the High Court.
Here is a discussion of the appeal process for each:

7
Namibian Constitution of 1990
8
GOVERNMENT GAZETTE NO 59/1990 10 October 1990
 (a) Magistrate Court

According to section 509 of the Act, (1) If an appeal is appropriate for a magistrate's
court, it may be noted by giving notice within seven days of the date of the appealed-
again judgment. (2) The grounds for the appeal must be clearly and succinctly stated in
the notice of appeal. (3) The party who records the appeal must pursue it within 21 days
of recording it.(4) The appeal hearing must be set aside by the appellant for a day
designated by the court clerk before it can be held.(5) This notification must be sent at
least seven days prior to the hearing date.
(6) The appellant shall cause to be filed with the clerk of the court the record, or a duly
certified copy thereof, of the proceedings leading to the judgment or decision appealed
against, at any time after delivery of the notice of appeal but not later than delivery of
the notice of set-down.(7) The court may, in its discretion, grant leave to a party to
provide oral evidence during the hearing of the appeal or proceed by means of
rehearing, either in full or in part, subject to the rules of any other law regulating process
of the court on such appeals.
(8) The court has the power to allocate the costs of the appeal to any party. Such
expenses shall be assessed according to the court's discretionary cost schedule for
court actions. (9) The summons or other initial document issued in a case transferred to
a court in terms of rule 39 (22) of the rules regulating the conduct of the proceedings of
the several provincial and local divisions of the Supreme Court of South Africa10 shall
stand as summons commencing an action in the court to which such case has been so
transferred and shall, subject to any right the defendant may have to except thereto, be
deemed to be a valid summons, issued in terms of the rules and any matter done or
order given in the court from which such case has been transferred shall be deemed to
have been done or given in the court to which such case has been so transferred and
the case shall thereupon proceed from the appropriate stage following the stage at
which it was terminated before such transfer. 10) Unless the court orders otherwise, the
costs expended in the case prior to transfer as above shall be considered costs in the
case.

(b) High Court

According to section 6 of Rules of the High Court in Namibia11, every application must
be supported by an affidavit stating the facts upon which the applicant is basing their
request for relief. The notice of motion must be sent to both the registrar and that
person if relief is sought from them or if it is necessary or appropriate to notify them of
the application; otherwise, it must be sent to the registrar alone.

9
(SA 2 of 1992) [1993] NASC 1 (15 October 1993)
10
High Court No.2 of 1990
11
Kahimbi Kashela v Katima Mulilo Town Council and Others (SA-2017/15) [2018] NASC 409 (16 November 2018)
Every petition must be signed by the petitioner or someone acting on their behalf and
include the order form that was requested. Every ex parte application must be submitted
with the registrar and laid down by noon on the day it is filed (whether by petition or
upon notification to the registrar supported by the affidavit). one court day but one
before the day it is to be heard, and if the registrar is notified, the notice must include
the following. indicate the affidavit submitted in support of the requested order, ask them
to add the case to the roster for a hearing and be closest possible interpretation of Form
2(a) of the First Schedule.
Any person whose interest could be impacted by a decision on an ex parte application
may give notice of a request for leave to oppose, accompanied by an affidavit
describing the nature of their interest and the grounds for their request to be heard. The
registrar will then set the request down for hearing at the same time as the ex parte
application.
The court may approve or deny one or both of the applications at the hearing, or it may
adjourn the matter on the condition that each applicant provide additional affidavits or
take other action that the court deems appropriate. A true copy of the notice and all
annexures thereto must be served on each party to whom notice is to be given, and
every application other than one brought ex parte must be brought on notice of motion
in accordance with Form 2(b) of the First Schedule.
The applicant must designate an address within 8 kilometers of the registrar's office
where he or she will accept notice and service of all documents in such proceedings.
The applicant must also specify a deadline, not less than 5 days after service of the
notice on the respondent, by which the respondent must notify the applicant, in writing,
of his or her intention to oppose the application. If no such deadline is specified, the
applicant is required to proceed without the respondent's opposition.
The applicant must notify the registrar, who must then present the case to the managing
judge, if the respondent fails to tell the applicant of his or her intention to object in such
notice on or before the day specified for that purpose.

QUESTION 3

Namibian law recognizes customs as a source of law. Customary law refers to the
practices and traditions of a particular community that have been consistently followed
and accepted as binding. In Namibia, customary law is recognized and protected under
the Constitution. Under certain circumstances, customs may have legal significance and
be incorporated into the law. The Namibian Constitution, several statutes, and legal
precepts determine the legal recognition of customs and their enshrinement in the law.
In the case of Government of the Republic of Namibia v. Cultura 0:12 The Supreme
Court of Namibia ruled in this case that Namibian customary law is a legitimate source
of law. In order for customs to be recognized as law, the court highlighted that they must
be shown to be certain, reasonable, and consistent. In Kamwi v. Minister of Home
Affairs13, the High Court of Namibia ruled that customs may be regarded as legal
requirements provided they can be established to be reasonable, consistent, and free
from constitutional or other legal constraints. The court also stressed the significance of
upholding community members' rights and cultural diversity.
In the case of Nghidinwa v. Nghidinwa,14 the Supreme Court of Namibia highlighted that
in order for customs to be recognized as law, they must be demonstrated to be "living"
and still followed within the community. The court also emphasized how important it is
for customs to adhere to the values of justice and fairness.
These cases highlight how significant customs are as a recognized source of law in
Namibia. It is crucial to remember that in order for customs to be regarded as law, they
must fulfill certain requirements, including certainty, reasonableness, consistency, and
compliance with other pieces of legislation and the Constitution.
The Article 66(2) of the Namibian Constitution, A custom must comply with the
Namibian Constitution and other pertinent laws in order to be accepted as law in
Namibia. Any tradition that conflicts with the Constitution will not be tolerated because it
is the highest law of the land. Customary actions cannot go against the Constitution's
entrenched legal principles or fundamental rights. By preventing customs from violating
constitutional rights and freedoms, this encourages the peaceful coexistence of
customary and statutory law.
The Communal Land Reform Act in Namibia15, communal land rights are governed by
this legislation. Customary land rights are expressly acknowledged in Section 2(1) of the
Act, which states that "customary land rights shall be rights recognized and protected
under customary law." Customary land rights are recognized and registered under the
Act's legal framework.
In Namibia, a custom must generally fulfill the following requirements to be considered
legal:
Consistency: Customs are frequently founded on lasting, recognized norms within a
certain community or society. For a custom to be considered legitimate, tradition and
historical acceptance are essential components. It is more likely that a practice will be
accepted as a legitimate custom if it has been consistently followed for many years. The
tradition's lengthy history of observance serves as evidence that it is firmly ingrained in
the culture and way of life of the neighborhood.
12
Katjivikua v The Magistrate: Magisterial District of Gobabis and Another 2012 (1) NR 150 (HC)
13
Communal land Reform Act no 5 of 2002
14
(HC-MD-CIV-MOT-REV 326 of 2020) [2022] NAHCMD 173 (5 April 2022)

15
Act, 2002 (Act No. 5 of 2002)
Consensus: Customary ways of doing things ought to be widely agreed upon or
accepted by the people they impact. This implies that the majority of the community
should be aware of and respect the custom. The argument for a custom's legal
legitimacy may be undermined by its lack of general support. When determining a
custom's legal standing, courts and traditional authorities may take the level of
community acceptance into account.
Traditional Authorities or Courts adjudicate disputes: Customary disagreements
frequently develop within communities, and how these disagreements are resolved
might influence whether customary law is recognized. Traditional authority, such as
chiefs or headmen, who use regional conventions and traditions to make decisions, may
resolve customary conflicts. Conflicts may occasionally be brought before the official
legal system, where judges often take the community's traditions and practices into
account. Court rulings and traditional authorities' decisions can both help a custom
become officially recognized as law.
BIBIOGRAPHY

Authorities
Namibian Constitution of 1990
Communal Land Reform Act no 5 of 2002
11 GOVERNMENT GAZETTE NO 59/1990 10 October 1990
Rules of The Magistrate Court Act no.32 of 1944
High Court No.2 of 1990

Cases
Ndevahoma v Shimooshili and Others (HC-MD-CIV-ACT-OTH 3184 of 2017) [2019]
NAHCMD 32 (25 January 2019)
Mbai v Minister of Land Reform [2020] NAHCMD 425 (18 September 2020)
Kahimbi Kashela v Katima Mulilo Town Council and Others (SA-2017/15) [2018] NASC
409 (16 November 2018),
Kamburona v Permanent Secretary, Ministry of Lands and Resettlement (HC-MD-CIV-
MOT-REV 326 of 2020) [2022] NAHCMD 173 (5 April 2022)
Nghidinwa v Nghidinwa (26 of 2017) [2017] NAHCNLD 83 (15 August 2017)
Government of The Republic of Namibia v Caltura (SA 2 of 1992) [1993] NASC 1 (15 October
1993)
Kamwi v Ministry of Home Affairs 13 (SA 16 of 2019) [2021] NASC 5 (29 March 2021)
Katjivikua v The Magistrate: Magisterial District of Gobabis and Another 2012 (1) NR
150 (HC)