Namibia: Ovaherero Faction Loses City Property Lawsuit

An Ovaherero community organisation that sued a rival faction in an attempt to get ownership of a plot of land in Windhoek has lost its case in the High Court.

The Herero Royal Red Flag Association (HRRFA) did not have the required legal standing that would allow it to own land and litigate in its own name, judge Claudia Claasen ruled in a judgement in which she upheld a special plea raised by the rival Herero Red Flag Association in response to the HRRFA's claim against it.

Upholding the special plea with costs, judge Claasen ordered that the case be removed from the court roll and regarded as finalised.

The HRRFA was asking the court to order that the title deeds of Erf 6297 in Katutura, where the Ovaherero community's Commando Hall, known as Commando 2, is situated in Windhoek, should be changed to reflect the association as being the owner of the property. It was 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.

The HRRFA claimed the transfer of ownership to the Herero Red Flag Association was unauthorised and invalid.

During the hearing of the case, former DTA leader Katuutire Kaura, who testified as a witness on behalf of the HRRFA, told the court the Herero Red Flag Regiment created the Herero Royal Red Flag Association specifically to buy Erf 6297.

Kaura said when the National Unity Democratic Organisation (Nudo) broke away from the DTA alliance of political parties in 2003, the harmony in the Herero Red Flag Regiment was disturbed, and the HRRFA learned only in 2015 that Erf 6297 had been registered in the name of the HRFA instead of its own name.

In a plea filed at the court, the HRFA claimed that the HRRFA transferred all of its obligations in terms of its sale agreement with the City of Windhoek to the HRFA before May 2007, which was when the city instructed the lawyers to effect the transfer of the property.

The HRFA, which was registered as a non-profit association in April 2009, also claimed that the HRRFA, registered as an association not for gain in 2016, could not now take legal action on behalf of an association that did not previously have the right to litigate.

Judge Claasen noted in her judgement that the HRRFA's claim that it was established for the purpose of acquiring the property was difficult to reconcile with its objectives as recorded in its constitution.

The constitution states the association is a cultural association, with the aims and objectives of unifying Herero culture, funeral arrangements for its members, to organise and commemorate remembrance days for their late leaders and heroes, and to unify the Herero youth and educate them about their culture.

The judge also noted the two rival associations both grew from the same tree, namely the Red Flag Regiment, and the HRRFA has also been using the names Herero Red Flag Association and Red Flag Association to refer to itself.

She further said in terms of the common law, an association as the HRRFA was before it was registered in terms of the Companies Act, would have the right to own property and litigate in its own name if it continued to exist although its members may change from day to day. In the case of the HRRFA, its fragmentation did nothing to support that requirement, she remarked.

The HRRFA was represented by Saima Nambinga and Phillip Barnard during the hearing of the case in October and December last year. Patrick Kauta and Mekumbu Tjiteere represented the HRFA.

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