Namibia: Ovaherero Factions in City Plot Ownership Dispute

A dispute about the ownership of a plot of land in Windhoek has landed two rival Ovaherero community organisations in a legal battle in the Windhoek High Court.

In a case being heard by acting judge Claudia Claasen, the Herero Royal Red Flag Association, which is a registered non-profit association, is suing the Herero Red Flag Association, which is registered as an association not for gain, the Windhoek municipal council, Namibia's registrar of deeds, and the law firm Dr Weder, Kauta & Hoveka Incorporated over the erf where the Ovaherero community's Commando Hall, known as Commando 2, is situated in Windhoek.

The Herero Royal Red Flag Association (HRRFA) is asking the court to order that the title deed of Erf 6297 in Katutura should be changed to reflect the association as being the owner of the property.

It is also asking the court to evict the Herero Red Flag Association (HRFA) from the property.

According to the HRRFA, the City of Windhoek agreed to sell the erf, which is 2 391 square metres in size, to it in May 2000.

At that stage, the HRRFA was not yet a registered association.

The ownership of the property was officially transferred only in December 2009 - but with that transfer, the Herero Red Flag Association, and not the HRRFA, was reflected as being the new owner of the land.

According to the HRRFA, a power of attorney in which the City of Windhoek authorised Dr Weder, Kauta & Hoveka Inc to carry out the transfer of the ownership of the erf at first stated that the property was to be transferred into the name of the HRRFA. However, the word "Royal" in the association's name was then deleted in the power of attorney, and the subsequent transfer of the ownership to the Herero Red Flag Association was unauthorised and invalid, the HRRFA is claiming.

The HRFA is opposing the claim against itself.

In a plea filed at the court, it is claiming that the HRRFA transferred all of its obligations in terms of its sale agreement with the City of Windhoek to the HRFA before May 2017, which was when the city instructed the lawyers to effect the transfer of the property.

The HRFA, which was registered in April 2009, is also claiming that the HRRFA, registered in 2016, cannot now take legal action on behalf of an association that did not previously have the right to litigate. In addition to denying that any error occurred with the transfer of the ownership of the property, the HRFA has lodged a counterclaim against the HRRFA. In the counterclaim, it is alleging that it has made improvements to the value of N$2 million to the property, and is asking the HRRFA to pay N$2 million to it in the event that the court rules in favour of the HRRFA's claim.

A former president of the DTA of Namibia, Katuutire Kaura, was the first witness to testify on behalf of the HRRFA yesterday.

He told the court that the Herero Red Flag Regiment created the Herero Royal Red Flag Association specifically to buy Erf 6297. A constitution for the association was adopted in 1996.

Kaura also told the court that in 2003, when the National Unity Democratic Organisation (Nudo) broke away from the DTA alliance of political parties, the harmony in the Herero Red Flag Regiment was "disturbed".

According to Kaura, the Herero Red Flag Regiment learned only in 2015 that Erf 6297 had been registered in the name of the HRFA.

"We realised that the erf had been hijacked," he said.

"From 2000, we were in a fool's paradise, believing that the erf was registered in the Herero Royal Red Flag Association, until 2015," Kaura told the court.

He also remarked: "This is why we are here in court today: I want to know why that 'Royal' was scratched out [in the power of attorney]."

The hearing is continuing.

The HRRFA is being represented by Saima Nambinga and Phillip Barnard. Patrick Kauta and Mekumbu Tjiteere are representing the HRFA and Dr Weder, Kauta & Hoveka Inc.

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