Abstract
The facts in this case, which fell to be decided by the Supreme Court of Namibia in November 2018, can be succinctly put: in 1985, Ms Kashela’s late father was allocated a piece of land as part of communal land by the Mafwe Traditional Authority (MTA) in the Caprivi region of the then-South West Africa (now Namibia). In 1985, the Caprivi region fell under the then-South West Africa Administration. Following the independence of Namibia on 21 March 1990, all communal lands became property of the state of Namibia by virtue of section 124 of the Constitution of Namibia Act 1 of 1990, read with Schedule 5 of the Constitution. Paragraph (3) of Schedule 5 of the Constitution states that the afore-mentioned communal lands became property of the state “subject to any existing right, charge, obligation or trust existing on or over such property”.
Highlights
Agnes Kahimbi Kashela v Katima Mulilo Town Council (SA 15/2017) [2018] NASC 409 (16 November 2018). The facts in this case, which fell to be decided by the Supreme Court of Namibia in November 2018, can be succinctly put: in 1985, Ms Kashela’s late father was allocated a piece of land as part of communal land by the Mafwe Traditional Authority (MTA) in the Caprivi region of the -South West Africa ( Namibia)
Following the independence of Namibia on 21 March 1990, all communal lands became property of the state of Namibia by virtue of section 124 of the Constitution of Namibia Act 1 of 1990, read with Schedule 5 of the Constitution. (For an exposition of the Constitution of Namibia, see Naldi Constitutional Rights in Namibia (1993); Carpenter “The Namibian Constitution: Ex Africa Aliquid Novi After All?” 1989/90 15 SAYIL 22.) Paragraph (3) of Schedule 5 of the Constitution states that the afore-mentioned communal lands became property of the state “subject to any existing right, charge, obligation or trust existing on or over such property”
She claimed that Katima Mulilo Town Council (KTC) was subsequently unjustly enriched to her prejudice and that KTC had unlawfully expropriated her land without just compensation as determined by section 16(1) and (2) of the Constitution and section 16(2) of the Communal Land Reform Act 5 of 2002
Summary
The facts in this case, which fell to be decided by the Supreme Court of Namibia in November 2018, can be succinctly put: in 1985, Ms Kashela’s late father was allocated a piece of land as part of communal land by the Mafwe Traditional Authority (MTA) in the Caprivi region of the -South West Africa ( Namibia). At the time of Namibian independence (1990), Ms Kashela’s father was still alive and continued to live, without interference, on the piece of communal land allocated to him by the MTA (the land in dispute) with his family, including Ms Kashela. Ms Kashela issued summons in the High Court, claiming that KTC had unlawfully rented out the land in dispute She claimed that KTC was subsequently unjustly enriched to her prejudice and that KTC had unlawfully expropriated her land without just compensation as determined by section 16(1) and (2) of the Constitution and section 16(2) of the Communal Land Reform Act 5 of 2002.
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