CASE NUMBER: HC-NLD-CIV-ACT-DEL-2017-00185 IN THE HIGH COURT OF THE REPUBLIC OF NAMIBIA, NORTHERN LOCAL DIVISION In the matter between: OUTAPI TOWN COUNCIL 14 Applicant MAUNO HAINDONGO 2" Applicant and MARIA LAZERUS 4" Respondent WELDELINUS LUCAS. 24 Respondent GEORGE ERASTUS 3° Respondent OPPOSING AFFIDAVIT IN TERMS OF RULE 60(5)(b)(i) | the undersigned, MARIA LAZARUS, Do hereby make oath and state that:4. lam the First Defendant in the main action. | am an unemployed adult female Namibian citizen and lawfully occupy certain immovable property situate within the townlands of Outapi. 2. Alll of the facts deposed to by me in this affidavit are within my own personal knowledge, unless indicated to the contrary or as the context may imply, and are to the best of my knowledge and belief both true and correct. 3. Where | have made statements and observations of a legal nature, | do so having been advised on these issues by my legal practitioner, which advice | verily believe to be sound. 4. | am temporarily residing at my relative's house at Swakopmund while seeking work. All my siblings, including the 2" and third defendants are occupying the same piece of land in Outapi Town. 5. My brothers and I have consulted with our legal practitioner of record in relation to this matter who has prepared this affidavit on our behalf. The facts which | relate below are common to alll of the respondents and are in accordance with all of our instructions. 6. | have read the particulars of the Plaintiffs’ claim. 7. | have also read the notice of motion and the founding affidavit of Matheus Nashilongo Ananias, the CEO of the first Plaintiff in this matter. Ye 46-8. I deny that | or the other respondents do not have a bone fide defence to the Plaintiff's claim or that we have entered an appearance to delay the Plaintiffs’ action, 9. The nature and the basis of our defence to the Plaintiffs’ claims are set out more fully below. 10.1 am the sister of the other respondents in this application and of Lukas Shatimwene. Lukas also occupies the erven with me and the other defendants but he is not a party to these proceedings. 11. None of us know why the Applicants did not join Lukas in these proceedings since he has an identical direct and substantial interest in this matter. In the absence of such joinder by the applicants, | submit that the Plaintiffs’ do not take issue with Lukas's occupational rights over the land, which are the same as ours. 12. My brothers and |, like our mother and her forebears, are members of the Ombalantu traditional community presently under the jurisdiction of the Ombalantu traditional authority which was duly re-established in terms of the now repealed Traditional Authorities Act of 1995. 13. As members of the Ombalantu community of Namibia, we subscribe to the culture, customs, social norms, traditions and customary laws of the Ombalantu people as did our forebears. ML14.1 and my brothers, Lukas Shatimwene and Weldelinus, have lived on the land in Outapi from birth. My brother George, the third Defendant, was born in Angola in 1975 but has lived on that erven in Outapi from the age of three months. We are all adult Namibian citizens. 46.It is under these circumstances that | submit that the facts to which | now depose are common knowledge to all of us as siblings and defendants in the plaintiffs’ main action. 16. Itis these facts upon which the respondents make common cause and rely to. resist the plaintiffs’ claims both in the main action and in this summary judgement application. 17.1 have accordingly been duly authorised by my siblings to depose to this affidavit on their behalf as well. | refer this Honourable court to the confirmatory affidavits of WELDELINUS LUCAS, GEORGE ERASTUS and LUKAS SHATIMWENE filed evenly herewith in that regard. 18.During the year 1979, my mother was granted exclusive use rights over a certain piece of land under the authority of the Ombalantu tribal authority at the time in favour of her family which included herself the respondents and Lukas Shatimwene. 19. The Ombalantu authority was vested with powers to grant customary law rights of occupation on communal land in terms of the prevailing colonialapartheid laws mandated by the Republic of South Africa prior to independence. 20.The erven we occupy was formerly part of communal land and has now allegedly become part of the 1 applicant's townlands. It is not a large parcel of land and was always used for residential purposes by our family. 21. The nature of the exclusive use rights which were granted to our family under customary law are not rooted in Roman Dutch common law of private property and ownership, but within the customary laws and norms regulating use rights to land within the prevailing social system of the Ombalantu people 22. These rights in land are derived from shared rules of our society which determine exclusive access and use to land held in common by the Ombalantu people, and includes myself and my siblings as part of that group. Private ownership of land is not part of our customary law. 23. These exclusive use and occupation rights in terms of which | and my siblings occupy the land were legitimately conferred by way of the existing customary laws through the administrative structures of the Ombalantu people. This was sanctioned under authority of the state in terms of the prevailing statutory laws in 1979 and are therefore legitimate rights. 24. These exclusive customary land rights have not been extinguished by statutory law or otherwise. | annex hereto marked "ML-1”, a copy of a letter from the ML LeOmbalantu traditional authority confirming its common cause with the respondents on this issue. 25.Ever since my mother was conferred use rights for her family to the land in 1979, she (until 2009), myself and my siblings have beneficially occupied the erven now under the local authority area of Outapi. My mother died in 2009. 26. Her death did not terminate any customary rights which remain in favour of the family and which are held in perpetuity until lawfully extinguished. 27.We continue to assert our lawful rights to occupy the land in terms of our customary rights under the protection of the Constitution, binding international laws and prevailing domestic statutory and other laws of Namibia. 28. We have collectively and continuously exercised our exclusive use and enjoyment rights to the land without lawful intervention from either of the plaintiffs or any other person, at least until | recently received the plaintiffs’ summons commencing the main action 29.No prior lawful demand was made to us to vacate the property we so occupy. We have been in continuous, undisturbed possession since 1979 30. However, certain events occurred during the past 12 years - the most significant of which started with a fire that destroyed our house in 2005 and culminating in the erection of the 2" Plaintiff's shopping mall and now the joint Plaintiffs’ summons in which they seek to evict us from that land. ML31.Neither | nor my brothers know who was responsible for the destruction of our home. My mother and us were visiting our relatives in Omufituweelo village when the fire started. 32.We took shelter at a nurse’s house in Outapi while | and my mother and my brothers were preparing to clear the debris on the land to rebuild our house but the 2° plaintiff's employees or contractors appeared shortly afterwards and began building on the land. 33.At no time did my mother or any of us relinquish our rights to occupy the land or to give our consent to the erection of the 2" plaintiff's buildings. 34. Since the destruction of our house, first my mother and then | and the other defendants have periodically enquired from both the 1* and 2 plaintiffs as to the status of our land and the 2" plaintiff's buildings. 35.We lodged our complaint to the Ombudsman's office regarding the land issue but were advised by letter that the 1* applicant advised the Ombudsman's office that it “never took your peace [sic] of land as you alleged.” | attach a copy of that letter marked “ML-2”. 36.Although certain allegations were apparently made by the 1* applicant {according to the Ombudsman's letter) that we sold our plot to the businessman i.e. the 2” Plaintiff, these are simply not true. ML v637. | respectfully submit that if this were the case, not only would it be an unlawful transaction, but unlikely that the 1* Plaintiff would stand idly by while knowing that its alleged property is being so unlawfully sold. 38. | also submit that the 2” Plaintiff is a well-seasoned businessman with his own homestead at Nakayale Village on communal land, close to Outapi. He offered us some money to go away on one occasion when the Omusati Regional Governor intervened and then on another invited us to a meeting to discuss the issues, but instead called the Namibian police to intimidate us when we arrived. Having knowledge of business and both customary and private land rights he reasonably knows that such a transaction is unlawful 39. The point that | am making is that the 1* Plaintiff has been derelict in its statutory duty and failed to abide by proper constitutionally directed administrative procedures by failing to take us into its confidence regarding its actions relating to that land. 40. The second plaintiff is well aware of our customary rights because we have already told him that’s how we stay there lawfully and he himself exercises similar rights to occupy communal land. 41. The 2 Plaintiffs claim of bone fide possession of the land is not supported with any allegation of the nature of the legal relationship between the 1* plaintiff (the alleged owner) and the 2 Plaintiff. 42. In this regard the 2 plaintiff's alleged undisclosed limited right cannot undermine our lawfully conferred limited real rights to beneficially occupy the land. mL43. | deny that the 2" Applicant is either a bone fide possessor of the land or a lawful occupier and therefore he lacks standing to bring these action proceedings against us. 44, Moreover this lack of particularity regarding his claim of bone fide possession renders his pleading embarrassing due to its vagueness. 45. Neither respondent, in our collective experience with them, has been forthright ‘open or honest with us in relation to its dealings with this land. 46. To date we have not had any success in getting an unequivocal answer from anybody concerning the nature of the tenure the 2” plaintiff asserts in conflict with our extant rights of occupation. 47.We were never notified by the first or 2" respondent of any pending public interest expropriation of our use rights by the 1* plaintiff or the 2” plaintiff prior to the building of the 2" plaintiff's shopping centre on a portion of the land 48.It is submitted that an undeniable fact which will be common cause between all of the parties is that we, the defendants, have not been justly compensated for any extinguishment of our customary land use rights that we exercise over the land in Outapi. 49.Itis submitted that until our rights are so extinguished we may lawfully exercise our right of possession and occupation. In these premises | deny that we are “in unlawful occupation and/or unlawful possession’ of the property as plaintiffs Me claim.50. The Defendants’ exclusive use rights to the land were conferred on their family in perpetuity in terms of the customary laws of the Ombalantu people and lasted as long as they were not cancelled by the Elenga or head of the Traditional Authority; 51.When my mother acquired our land use rights that land was not part of Outapi townlands. Black people were not allowed to own land under free-hold title at that time. 52. The only form of land tenure and use rights available to black people, such as my mother was, on communal land in 1979 was and still largely is, determined in the context of customary laws and social practises relating to land and tenure among the various traditional communities of Namibia who live on communal land. 53.Even though these rights were lawfully conferred in 1979, they are in the nature of ‘limited real rights” in communal land, 54. The content of this customary right includes our family’s right to beneficially occupy the land in perpetuity to the lawful exclusion of all others or until such time as the occupation rights are otherwise lawfully terminated or extinguished. 56. Article 16 of the Constitution of Namibia protects rights to all forms of movable and immovable property. Similar protection is to be found in the African ff Af Me LeCharter on Human and Peoples rights, which is ratified by Namibia and therefore binding as domestic law. 56. These include such rights in immovable property which detract from the bare dominium of the owner such as a servitude or a usufructury right or even a mining related activities and even a mortgage bond over immovable property. 57. Thus rights under Roman-Dutch common law such as, for example, a usufruct find protection under the constitutional property clause because. Itis trite that even the common law recognises that albeit a limited right, is nevertheless regarded as a real right to immovable property. 58. No black customary land use rights over communal land are similarly protected under common law. This is because they have their roots in African customary law. 59. It is unconceivable that the constitutional provisions and statutory provisions under the Communal Land Reform Act and the Local Authorities Act should be interpreted in such a manner as to now exclude black people from exercising their legitimate rights conferred in terms of the customary laws to which they subscribe. 60. Article 66 of the constitution recognises customary law as an original source of Namibian law. The validity of such customary law depending only on whether oF not it conflicts with a written statute or the constitution itself. ML *61. Moreover, it is clear from the constitution’s preamble that our customary rights to occupy the property as we do should not be rejected without losing sight of the inherent racial inequality of the laws that created the discriminatory land occupation, ownership and use rights for different-coloured people in the first place 62.In addition to the above, no conflict of laws arises in this matter. | set this proposition of law out more fully below in summing up the nature and basis of our defence below. 63.The Constitution of Namibia's Article 16 requires just compensation on expropriation of all forms of movable and immovable property where it is done to further the public interest. It is trite that the Constitution is supreme law in Namibia and accordingly invariably the starting point of our defence. 64.The Communal Land Reform Act, in line with the constitutional provisions under article 16, similarly requires that the state only “acquires” communal land once it justly compensates the existing right holders, namely the people in whom the particular customary rights are currently vested by operation of customary law. 65. It is common cause that the area of land we occupy has ceased to be communal land. 66. However, in light of that which | have stated above, transfer of land to the 1% Defendant is subject to the existing burden on the land by virtue of our ML customary rights in and to the land.67. It is also submitted that at no time were any of us notified that the land had been transferred to the 1* Plaintiff. Nobody disturbed our occupation other than to the extent | have stated elsewhere in this affidavit. 68. The Communal Land Reform Act does not negate the Defendants’ rights, and explicitly recognises the existence of customary rights, such as ours, under Section 28 which already existed prior to 1 March 2003, being the date that Act came into effect. 69.The Act itself is couched in accordance with the presumption that existing rights should not be adversely affected by application of law that does not expressly provide for retrospective effect. Nor does it in any manner purport to extinguish existing rights in the absence of regulation from the Minister of Land Reform. 70. The constitutional recognition of our customary law negates the inherent inequality of applying common law paradigms of private ownership alongside apartheid inspired land administration systems in Namibia, and particularly on a population that did not have any alternative mode of lawful land occupation during the time of colonial occupation over the territory of Namibia. 71. The only form of occupational property rights that could lawfully be exercised by black people in 1979 cannot now simply be expropriated by WL. Lethe state or its organs or agents without just compensation to the people who have a legal right to occupy. 72.It follows that when the CLRA came into effect, it was the intention of the legislature to expressly recognise existing customary rights to land and encompass these within the Act rather than to indiscriminately deprive people of their vested customary rights without any compensatory relief. 73.The object of the Communal Land Reform Act is to, inter alia, reform the erstwhile discriminatory laws relating to communal land and tenure rights under customary laws and improve tenure security for customary right holders. 74. The CLRA regards the parameters of an “existing customary right” under section 28 with reference to the nature of the right as envisaged under Section 21 of that Act in unequivocal terms. 75. It follows that our existing customary, being in the nature of a right referred to under Section 21 rights remain intact until such time as us as the right holders are compensated justly or the rights are otherwise lawfully expropriated or cancelled 76.1 am now aware that in terms of Section 1 of the Local Authorities Act "owner" in relation to immovable property, means the person in whose Me name such land is registered, or(b) _ if such immovable property- (ii) is occupied by virtue of a servitude or under any other real right in such immovable property, means its occupier; 77.My brothers and | assert that the rights we have to occupy fall within the ambit of “any” real and determinable rights which detract from the bare dominium in the land. 78. These rights are limited real rights and constitute, for all intents and purposes a servitude or usufruct on the land in our favour. Ownership of such real rights over the immovable property are explicit in the above provision in the definition of “ownership” for the purposes of the Local Authorities Act. 79. Namibian customary law modes of occupation and land usage are inconsistent with Roman-Dutch law regarding, inter alia, private ownership and land use rights. However, on a proper, logical and equitable interpretation of the law, no conflict of laws arises. 80. It is this ownership of limited real rights that are the subject of Article 16 in this case 81. In the main the applicability of these two sources of law i.e. customary law are relevant in the context within which they are applied and each source VW L “Le equally enjoys constitutional protection and oversight82.1 am advised that customary modes of occupation and use rights have similar characteristics that render Roman Dutch common law rights as limited real rights in land. 83. However, the common law largely perceives legitimate customary modes of occupation on communal land by black people under customary law tenure systems as of no consequence, or as if these did not exist 84.It is follows then that both the limited real rights under common law and customary law regimes are equally worthy of protection under Article 16 of the Namibian constitution as “any form of property’. 85. It is clear then that our “black” communal tenure rights also fall directly within the ambit of Article 16 of the Constitution of Namibia (as guided by the preamble) and Section 16 of the Communal Land Reform Act and Section 1 of the Local Authorities Act 23 of 1992. 86. _In light of these facts, | submit that | have adequately demonstrated that we, the respondents, have a bone fide defence to the plaintiffs’ action and that we have disclosed fully the nature and grounds of defence and the material facts on which we rely to assert our legitimate rights to occupy the disputed land 87. Moreover, in light of what | have stated above, | also aver that: (a) Plaintiff's action is premature and therefore discloses no cause of action. ML ee(b) 2" Plaintiff does not have /ocus standi in these proceedings. 88.1 further submit that the defendants may raise a counterclaim against the 45 and 2" plaintiffs jointly as a result of the spoliation of the defendants’ rights in and to the land. 89.In the result the respondents pray for the summary judgment application to be dismissed and leave be granted to continue our defence of the plaintiffs’ action. a mala MARIA LAZARUS I hereby declare that the deponent has sworn to and signed this statement in my presence at S-alccpmedthe 13 day of Octoler2017 and she declared as follows: that the facts herein contained fall within her personal knowledge and that she understands the contents hereof, that she has no objection to taking the oath; that she regards the oath as binding on his conscience and has declared as follows: “| swear that the contents of this Sworm Affidavit are true and correct, so help me God.” LS geeSS CSF. COMMISSIONER OF OATHS: FULL NAMES: haurenic, Joquetic Goose CAPACITY: cSt ADDRESS: g\~pol Se -eticpreod CEG LLQDOy 4 5g15/12 2019 15:26 FAX 065 251303 r ‘TINYAINKSOLUTIONS, “AL |” aanerreoen REPUBLIC OF NAMIBIA OMBALANTU TRADITIONAL AUTHOR) Tel 068 251602 2.0; Box 437 Fax Outapi ~ Ombalanty 27.05.2013 ~ Enquities: A, Shilimetindi ‘This letter is written as confirmation/te confirm that the late Mr, Tobias Salon: headmen fou! allucated a portion of land to late Joakim Fillipus ID-NO: 45121 plot was given in 1979 all we conticat Thar Oswinr (Chief Ombalantu Tradivional Authority)30/96 2018 11:58 065224898 OFFICE-OF-THE-OWBUDSMAN #3855 P.001/001 Woot Whleaes 06 we wet Ya We REPUBLIC OF NAMIBIA OMBUDSMAN: NAMIBIA Enquies Luts P.0.80x2668 Telephone = (085) 234444 OSHAKATI Fax $088) 298877 Emel suutsi@ombudsman orp na OurReterence 20761 ‘Your Reference 20 June 2016 Ms. Maria Lazarus P.O.Box 55 SWAKOPMUND: Dear Ms. Maria ALLEGED LAND DISPUTES ‘We are referring to your complaint to this Office on undated latter, pertaining to land dispute against Outapi Town council, The Office of the Ombudsman made enquiries with Outapi Town Council and establish that, the council never took your peace of land as you alleged. The council further informed this Office that you entered into a private agreement with one local businessman to purchase your plot. Therefore the Office of the Ombudsman lacks jurisdiction to investigate matters between private individuals, as itis @ case in your complaint. ‘We trust that you will find this information us: ER GE THE IS nop closed. OMBUDSMAN Yours faithfully uf, do JUN 2016 Leonatd Uutsi Complaints investigator. Northern Regions P.O BOX 2658,0SHAKATI LVALOMSOLA STREET, EXT 10, ONGNEDIVA "TEL: 065-204448 FAX: 085-286377