By Koviao Matuzee
The High Court has thrown its weight behind the powers of traditional authorities to allocate communal land, dismissing an application challenging the Kambazembi Traditional Authority’s decision to grant a customary land right to Herman Kangootui.
In a judgment delivered on 7 July, Judge E.M. Schimming-Chase dismissed an application by Puvaza Tjamburo to overturn a ruling of the Communal Land Appeal Tribunal, finding that the traditional authority acted lawfully, fairly and within the powers granted to it under the Communal Land Reform Act.
The ruling is a significant victory for the Kambazembi Traditional Authority and reinforces the authority of traditional leaders in administering communal land, provided they follow the procedures set out in the law.
The dispute centred on a piece of communal land at Ozoseu in the Otjozondjupa Communal Land Area.
The matter dates back to a decision by the Otjozondjupa Communal Land Board to cancel Kangootui’s customary land right.
Kangootui successfully appealed that decision before the Communal Land Appeal Tribunal, which reinstated his land rights after finding that the cancellation was not justified.
Unhappy with the outcome, Tjamburo turned to the High Court, arguing that the tribunal had erred in law and that the land allocation should be set aside.
Tjamburo claimed the Kambazembi Traditional Authority had allocated the land without obtaining the consent of the local community and had failed to comply with procedures prescribed by the Communal Land Reform Act and its regulations.
He further argued that the tribunal ignored these shortcomings when it reinstated Kangootui’s customary land right.
However, the High Court found no merit in those claims.
Judge Schimming-Chase held that the Communal Land Reform Act empowers chiefs and traditional authorities to allocate customary land rights, while communal land boards are responsible for confirming those allocations.
The court said the law requires consultation with the affected community but does not require every community member to agree before land may be allocated.
The judge found that the evidence showed the Kambazembi Traditional Authority had consulted the community before making its decision and had considered objections that were raised.
Although Tjamburo produced affidavits from several residents claiming the matter had not been properly discussed during a community meeting, the court preferred the official record and minutes, which indicated that consultation had taken place before the allocation was made.
The court also endorsed the findings of the Communal Land Appeal Tribunal, which concluded that Tjamburo was the only objector to Kangootui’s application.
