Windhoek-Judge President Petrus Damaseb has moved to preside over the hotly debated land cases, which have pitted inhabitants of traditional land appropriated by the Ongwediva Town Council against the council and affluent property developers at the town.
Key players in the cases are common villager, Lukas Johannes, who is up against Ongwediva Town Council, for its alleged failure to compensate him for his land, and prominent northern businessman Ben Zaaruka. In another case are 17 villagers, who received eviction notices from Ongwediva Town Council to move and make way for development. The group is contesting its eviction in the Oshakati High Court.
It has transpired that the two cases raise constitutional issues that touch on the possibility of an infringement of the parties’ constitutional rights.
There are also moral issues that need consideration. Furthermore, the cases raise provisions in some sections of the Communal Land Reform Act. It is for these reasons the Judge President Damaseb has directed that all matters regarding land disputes be placed before him. Judge President Damaseb is set to hear the two cases on April 25 at the Oshakati High Court.
The Johannes family has refused to budge, even after being served with a court interdict in March, until the town council properly compensates them. Leading the charges for the 17 villagers is village headman Sam Amunyela Kavili, who contests that the town council has no right to evict people from the land rightfully and legally allocated by a recognised headman, who, by law, is empowered to do just that.
Kavili also told the court that his constitutional rights, as headman who is allowed to handle land issues, are being trampled on.
Until now, Oshakati-based Judge Maphios Cheda has been presiding over these two cases. His initial judgments thus far have attracted severe criticism from the public. The Affirmative Reposition movement, under Job Amupanda, has gone as far as attacking the person and character of Judge Cheda, with rhetoric bordering on xenophobia. Judge Cheda is from Zimbabwe. The movement has also organised a demonstration next week at the High Court, demanding his removal from the bench.
In the case of Johannes, the family contests that they cannot be moved from the land that has been in their family for generations without compensation from the town council. The family blocked any construction activities on their land. Businessman Zaaruka, who bought the land from the town council at a price of N$1.4 million in 2010, went to court to have the family interdicted from interfering with construction on the site. Judge Cheda granted the interdict in March. Zaaruka is expanding a shopping mall through his company Stantoll Properties. The family, however, argued that they could not allow the construction of the mall until they are properly compensated. It has transpired that the town council has been locked in a dispute with the family over compensation and had allegedly at one point offered the family N$150,000 as compensation.
Judge Cheda had given Johannes and his family until April 10 to show why cause why the order restricting the family from interfering or obstructing the construction activities by Stantoll Properties should not be made final. Johannes and family then launched an urgent application wanting to set aside Judge Cheda’s order. The judge dismissed the urgent application and had reserved April 18, as the date on which he would give his reasons. This week, however, Judge Cheda informed the applicants that he would no longer be presiding over the case and Judge President Damaseb would hear the case on April 25.
In the case of 17 villagers, the town council served eviction notices to the villagers and ordered the dismantling of their structures from the town land. When the respondents refused, the council approached the High Court to evict them from the property. However, Kavili, who claims to be the headman of the village, stated in court documents submitted by lawyer Henry Shimutwikeni that he was responsible for allocating the plots to the people mentioned and that he acted in accordance with the laws of the country, “which empowered him to do so”. He further said that, as the custodian of the land, his constitutional right in the handling of the land is being trampled on.
The 17 villagers are: Kavili, Rebecca Mika, Martha Ndahafa, Ruben Nghoomoka, Johanna Ndume, Mariana Shaanika, IIhelele Ellsin, Shikdong Matheus Shiimi, Angula Daniel, Hamgula Lukas, Johannes Mukamba Paulus, Vapopya Epifania Kaulinge, Maggy Omagano Nangolo, Penelao Selma Silvera, Ipandulwa Nekavu, Ondalyokwiithana Nenkavu and Walde Hatutale.