A land leasehold right granted under the Communal Land Reform Act of 2005 does not end with the death of the right holder and can form part of a right holder’s estate after their death, a High Court judge has ruled.
In a judgement delivered in the Windhoek High Court on Friday, deputy judge president Shafimana Ueitele also concluded that a deceased estate and its executor have a stronger right to land over which a leasehold right under the Communal Land Reform Act has been granted than someone occupying the land without having a leasehold right.
The judgement was given in a case filed by the executrix of the estate of Berthold Kandjimi, who was the holder of a 99-year leasehold right in respect of 2 543 hectares of communal land in the Kavango East region at the time of his death in October 2018.
The Kavango Communal Land Board granted the leasehold right in respect of the land to Kandjimi in January 2009.
Kandjimi’s widow, Rosemary Kandjimi, who was appointed as the executrix of his estate after his death, sued Thimoteus Kativa, who had allegedly occupied the land over which her husband had a leasehold right.
She alleged that Kativa had occupied the property without a leasehold certificate from the Kavango East Communal Land Board and a consent letter from the Shambyu Traditional Authority.
She also alleged that her husband’s 99-year leasehold right forms part of his estate, and asked the court to order Kativa’s eviction from the land he has occupied.
Kativa, who opposed Rosemary’s claim, alleged that Kandjimi’s leasehold right over the land ended with his death and did not form part of his estate thereafter.
He also alleged that the land for which Kandjimi had a leasehold right was in the sole custody of the chief of the Shambyu Traditional Authority or the Kavango East Communal Land Board after Kandjimi’s death.
In his judgement, Ueitele noted that according to the evidence before the court Kandjimi and his heirs never occupied the land, despite the fact that he was issued with a right of leasehold certificate.
The Communal Land Reform Act is silent about the assignment of a communal land lease after the death of the right holder, Ueitele noted.
The essence of a lease agreement is that it is a legally binding contract which is subject to all of the laws that pertain to contracts in general, Ueitele said.
“The law clearly states that the obligations of the parties to a contract will not be extinguished by the death of either party, unless: (a) the contract contains a clause that specifically states that the contract will terminate upon the death of one or both parties; or (b) the will of the deceased party specifically states that the contract will terminate upon the death of the party in question,” Ueitele stated.
Namibia’s Supreme Court has held that in terms of common law a lease is as a general rule not terminated by the death of a party thereto, “but the rights and obligations arising from the lease pass to the estate of the party who has died”, he said.
With the Communal Land Reform Act not stating that it intended to change the common law on that aspect, Ueitele concluded: “I, therefore, find that the legal position is in accordance with the common law, namely that a leasehold right does not terminate upon the death of the holder.”
He also found that a leasehold right has value, can be registered and enforced, and constitutes a real right that forms part of a deceased estate.
“The rights and obligations deriving from a leasehold right may thus be reflected in a deceased’s liquidation and distribution account under the Administration of Deceased Estates Act,” Ueitele stated.
He also found that the executrix of Kandjimi’s estate has the required legal standing to institute eviction proceedings.
While the executrix relies on a registered leasehold right, “Kativa simply relies on consent granted to him by the traditional authority”, and he has not applied to the Kavango East Communal Land Board for a leasehold right in terms of the Communal Land Reform Act, Ueitele recounted.
Ueitele said: “In our law it is now well established that registered real rights prevail over informal occupation. I, therefore, find that the deceased’s estate holds the superior title.”
He ordered that Kativa must vacate the land he is occupying not later than three months after the court’s order. Kativa was also ordered to pay the legal costs of the executrix in the matter.
The executrix was represented by Kingsley Ngoshi, instructed by Bernhard Tjatjara.
Paulus Ndumba represented Kativa.
