Namibia: Farmworkers' Children Cannot Claim Land - Lawyers

Landless People's Movement leader Bernadus Swartbooi (file photo).
21 February 2019

Farmworkers do not have rights over an undocumented piece of land given to them out of sympathy by farm owners.

This was said yesterday by Dominik Riebartsch, a lawyer at the Legal Assistance Centre, in the wake of an increase in cases of farm evictions that have left workers without shelter, and misunderstandings over who can claim ownership of a given piece of land.

At least four cases have been reported recently, including one in which a family of nine was left homeless after being evicted from a farm near Omitara, where they had stayed for about 25 years, after it was sold.

The family's father had worked at the farm for 48 years, and was given a piece of land to set up his home.

A family of about 30 members, whose plight The Namibian reported on two weeks ago, is still homeless after they were evicted from a farm in the Dordabis area, where their late father had worked for 64 years for different owners.

After the farm was sold for the first time, the new owner gave the family a piece of land on which to establish their home. However, after the farm was sold again, the third owner evicted them soon after the death of their father.

They were told to leave because their father, who was the only link between the two families, was no longer around.

Riebartsch explained to The Namibian that the right of ownership, enshrined in Article 16 of the Namibian Constitution, is a critical constitutionally guaranteed right, and there is no way that another person or the state can revoke this ownership.

He said there is no law or customary practice that transfers ownership of land to farmworkers who have lived on a farm for a long time, let alone their children, because this would be in conflict with the Constitution.

"On first sight, this seems to be hard, but it is not different from leasing a house or a flat. For example, if a person leases a flat for a number of years, nobody would even think of owning the flat because of the lease. If the owner does not want the farmworkers on his property any more, they have to leave," he stated.

The Rents Ordinance 13 of 1977 states in section 32 (1) b) that the regular period of notice to terminate a lease is three months, irrespective of whether the lease provides for that or not, he noted.

Riebartsch said there is a difference in section 32 (1) b) ii) for an employee who leases a dwelling from his employers as a condition of service, like what the farmworkers usually do.

"They shall vacate the dwelling within seven days after termination of service," he added.

There are also no options to avoid an eviction if the owner terminates the lease, but farmworkers can always make alternative arrangements before eviction.

"I would recommend asking the owner to arrange a period of notice of two or three months. In this case, the farmworkers would have enough time to look for alternative accommodation after termination of service," said Riebartsch.

The government also needs to do more to assist farmworkers to acquire land and become beneficiaries of the land reform programme.

"After all, most of them know how to farm, and would be able to make a success of farming, adding economic value to the Namibian agricultural sector," he noted.

Human rights lawyer Norman Tjombe, however, told The Namibian on Monday that although farmworkers do not have rights over land on farms, it is unfair for workers who have been working at a farm for many years not to be allowed to reside on that farm after all those years.

"They have not built a residence of their own outside the farm as they only know the farm as their residence," he stated.

Tjombe added that the government's resettlement policy recognises that generational farmworkers are one of the target groups for resettlement.

"Of course, we know that the ministry of land reform has competently mismanaged this implementation of the policy, to the extent that we see wealthy lawyers and businessmen, senior government officials and politicians being first in the queue for resettlement," he said.

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