Staff Reporter
THE government has argued that a lawsuit filed by the Hai//om Association, which represents a number of San community members, is legally defective.
The Hai//om Association is seeking damages of N$2.8 trillion over the expulsion of San people from their ancestral land in Etosha National Park.
The Hai//om Association contends that its members were dispossessed of their land through past racially discriminatory policies, laws and administrative failures perpetrated by Namibia’s alleged colonial predecessors.
In terms of relief, they seek a declaratory order establishing their entitlement to ownership of the subject land or, alternatively, to its exclusive beneficial occupation and use.
In the alternative to full restitution, they request an award of alternative land of equal extent and quality or financial compensation in the amount of N$3,914,000,000 (alternatively formulated as N$2,800,095,000,000.00).
They assert that, since time immemorial, the Hai//om people occupied, possessed and lived on their ancestral lands, which comprise the Etosha lands (approximately 23,150 square kilometres) and 11 farms in Mangetti West.
Government respondents in the matter, which include, among others, the Ministry of Agriculture, Fisheries, Water and Land Reform, the Ministry of Environment and the Attorney General, have, however, argued that the Hai//om Association does not have locus standi (legal standing) to represent the San community in the matter.
“The Plaintiffs’ (Hai//om associations) pleadings explicitly state it currently has at least 2,000 active registered members, and purports to act on behalf of an estimated 18,880 members of the community. The Association thus vastly and indisputably exceeds the strict statutory maximum threshold of twenty persons permitted for an unregistered association. In terms of section 30 of the Companies Act, 2004, any association of persons consisting of more than 20 persons which has for its object the acquisition of gain by the association or by the individual members thereof must be formally registered as a company,” the Government Attorneys argued.
They thus contended that an illegal association cannot maintain an action and that the defect is fatal, as the Hai//om Association lacks the legal capacity to approach the court.
Further to this, the Government Attorneys argued that all the resources of the Republic of Namibia are vested in the hands of the State.
“The subject lands under dispute—comprising the Etosha National Park territory and the designated farms in Mangetti West—were controlled and administered as state-regulated property by the preceding colonial authorities immediately prior to March 21, 1990. Under Schedule 5(3) of the Namibian Constitution, the post-independence state’s automatic vesting of such immovable property is subject only to an ‘existing right’ on or over such property at the exact date of Independence. To legally establish a cause of action capable of showing that the targeted property does not fall under the absolute ownership of the State, a plaintiff must make allegations in their pleadings to exclude the rights from the default operation of Schedule 5,” the Government Attorneys argued.
Picture for illustrative purposes only. Photo: Contributed
