THE Rehoboth Bastergemeente and its leader, kaptein John McNab, do not have the authority to survey, partition and allocate plots of land under the control of the Rehoboth Town Council, a judge declared in the Windhoek High Court yesterday.
The Rehoboth community transferred their communal land to the former Rehoboth self-government in 1976, and the land was transferred to the national government with the independence of Namibia, acting judge Collins Parker said in a judgement in which he granted the Rehoboth Town Council an interdict against the Rehoboth Bastergemeente (Rehoboth Baster Community), its leader, kaptein John McNab, and United People’s Movement National Assembly member Jan van Wyk.
Acting judge Parker found there was no land that McNab may allocate to anyone on the basis of his position as traditional leader of his community, with the result that he and the Bastergemeente could not justify their surveying and partitioning of land at Rehoboth, and the allocation of land to people.
Except for declaring that the Bastergemeente, McNab and Van Wyk do not have the authority to survey, partition and allocate plots of land in the area falling under the control of the Rehoboth Town Council, acting judge Parker also ordered the three respondents not to survey, partition and allocate plots of land in the Rehoboth town area.
The Rehoboth town sued the Bastergemeente, McNab and Van Wyk after realising in the early months of 2014 that unoccupied land belonging to the town council was being surveyed and divided, and then allocated to people.
The town council was claiming that it alone had the lawful right to divide and allocate land forming part of the Rehoboth townlands.
The town council also claimed the laws which in the past gave the Rehoboth Bastergemeente authority over the Rehoboth area and land in the area had been repealed – something confirmed by both the High Court and the Supreme Court in judgements delivered in 1993 and 1996 respectively – and that the Rehoboth Bastergemeente was trying to reassert its authority based on laws which no longer existed.
Acting judge Parker agreed with the town council’s view on that crucial point. He stated that it seemed clear from the Supreme Court’s 1996 decision on a dispute over the ownership of communal land at Rehoboth that the Baster community freely decided to transfer its communal land to the new government created by the Rehoboth Self-Government Act of 1976, and that the Rehoboth government’s property was transferred to the government of Namibia when the country became independent in 1990.
“The community’s leaders, or some of them, now see matters in a different light,” acting judge Parker remarked. “They regret decisions which were made in yesteryears; but it is not for this court to attempt to change history, even if it wished to do so.” McNab denied the allegations made by the town council in an answering affidavit filed at the High Court.
He claimed that the Baster people’s ‘Vaderlike Wette’ (Paternal Laws), dating from 1868, remained in force following Namibia’s independence. In terms of those laws and the Baster people’s traditions, male citizens of the Rehoboth community above the age of 18 and unmarried female citizens over the age of 40 were entitled to be allocated a free plot of land at Rehoboth, McNab stated.
While denying that he and the Bastergemeente had been involved in any unlawful activities with respect to the allocation of land at Rehoboth, McNab said he and the Bastergemeente did nothing more than trying to get the Rehoboth Town Council to give effect to an acknowledgement on the part of the government that free, unserviced erven had to be allocated to Rehoboth residents with documentary proof of having been allocated free land in terms of the Paternal Laws.
The town council was represented by Thabang Phatela, instructed by Christopher Stanley, when the case was argued in December. Louis Botes, instructed by Ilse Agenbach, represented the Bastergemeente, McNab and Van Wyk.
