30 November 2018

Namibia: Judges to Weigh Up Hai//Om Quest for Land Rights

With their people dispossessed, marginalised and impoverished after being evicted from much of their ancestral lands, eight members of the Hai//om community have turned to the High Court in a bid to restore their lost rights.

THREE judges of the Windhoek High Court yesterday reserved their judgement on the first round of a high-stakes legal quest on which eight members of the Hai//om San community have embarked in an attempt to get recognition for their people's ancestral land rights over Etosha National Park and the Mangetti area.

Deputy judge president Hosea Angula and judges Nate Ndauendapo and Thomas Masuku reserved their judgement at the conclusion of a four-day hearing of oral arguments on an application by eight members of the Hai//om community who are asking to be allowed to pursue a lawsuit as representatives of their community against the Namibian government and other parties with interests in Etosha National Park and the Mangetti West area north of Tsumeb.

Judge Angula told the three legal teams involved in the case - including three senior counsel and nine other lawyers - that the court was postponing the delivery of its judgement to 28 August 2019, but that its decision might well be handed down earlier should the judgement be ready before that date.

Jan Tsumib, who is the first applicant in the case, and seven fellow applicants are asking the court to permit them to represent the Hai//om people and individuals who are part of the Hai//om community in future legal proceedings through which they plan to have their ancestral rights over Etosha National Park and the Mangetti West area recognised.

If they manage to cross that first hurdle in their way, they plan to ask the High Court to make a variety of decisions in their favour - including declaring that the Hai//om are entitled to the ownership of Etosha, comprising an area of 23 150 square kilometres, and of an area of 107 000 hectares at Mangetti West, or that they should be compensated for the loss of their ancestral land by being allocated other land or being paid N$3,9 billion.

The government and the Hai//om Traditional Authority are opposing the current application on which the court heard arguments this week.

During his address to the court, senior counsel Andrew Corbett, representing the eight applicants on instructions from the Legal Assistance Centre, reminded the judges that most of the last Hai//om people who had been living in Etosha for generations were evicted from the park in 1954, leading to a total loss of their free access to that area where their people had traditionally resided in the past.

Corbett also pointed out that the Hai//om are a marginalised and impoverished community that is trying, through the case at hand, to get access to justice in order to assert the rights taken way from them under colonial rule and never restored after Namibia's independence.

Senior counsel Wim Trengove, leading the legal team representing the government, argued that according to anthropological studies of the Hai//om, their community never exercised rights over land as a group, but land rights were instead held by smaller family groups. As such, the only rights that could be vindicated today were those that had been held by family groups and not the Hai//om community as a whole, he argued.

Trengove also argued that any land rights the Hai//om people might have held in Etosha had been extinguished by successive colonial governments and also the post-independence Namibian government, while the Communal Land Reform Act of 2002 took away their rights over land in the Mangetti area.

Both Trengove and Elias Shikongo, representing the Hai//om Traditional Authority, further argued that the eight applicants were in effect trying to take over functions that the Traditional Authorities Act reserved for the traditional authority, and that this would be a contravention of the law that the court could not allow.

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