IN THE LAND APPEAL TRIBUNAL HELD AT WINDHOEK In the matter between: TUYENIKELAO ERASTUS And APPELLANT

OHANGWENA COMMUNAL LAND BOARD JUDGEMENT

RESPONDENT

A. A dispute arose between the Appellant and Mrs Johanna Ndifekelwa Nangonya regarding the allocation of a residential and farming unit at Ondungula Village, Namibia. B. The Appellant states that she was given a customary right to the disputed land by her late husband, and that this right was registered by the Traditional Authority on the 11th of June 2003. C. Mrs Nangonya has disputed these allegations and claims that the customary land right vests in herelf. D. The Appellant alleges that she was married by customary law to the late Evaristus Hilotokelwa Shipo who died on the 15th of October 2003 (the deceased). However, this allegation is not borne out by the evidence considered by the respondent in arriving at the decision it did. During it investigation committee hearing, the appellant could not prove that she was indeed married by customary law, or indeed that she was married at all. This is also borne out by the letter of Mr Victor Weyulu of the Oukwanyama Traditional Authority in which he states that Mrs Tuyenikelao was the deceaseds non- official wife. E. In her statement to the Respondents investigation committee Mrs Nangonya has stated that she had in fact married the Late Mr Shipo in 1954 by way of a civil marriage. This allegation was corroborated by her witnesses who are also her sons. As such, even had Mrs Nangonya married the deceased such a marriage would be a legal nullity since the deceased was in a civil marriage to Mrs Nangonya in terms of common law and not customary law which may have tolerated polygamy. F. It would also appear from her own evidence that the appellant was not married to the deceased but was employed by the deceased as a shop assistant and conducted an adulterous relationship with the deceased. In light of all the evidence presented to the Respondent by the appellant and the other witnesses the only conclusion that can be reached is that the Appellant was not married to the deceased and her evidence in this regard is thus necessarily false. G. The Appellant further states her claim to the customary land right in issue is based on the premise that the deceased had in fact given her the land and that Mr Shipo (the deceased) had allocated the land to her. This apparently took place during or about 2001. H. The appellant refers to some sort of transaction that was carried out between her and the deceased whereby he gave the land to her. However, Mr Wibard Kapula, the appellants witness states in his evidence that the deceased had told him If I dies give the land to Tuyenikelao *sic]. In this regard the evidence is contradictory. If the customary right to the

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land was already purportedly given to the Appellant in 2001, it is unlikely that the deceased would have made a dying statement to the effect that the customary right to the land should be transferred to the appellant. In any event the issue is moot. Section 20 of the Communal Land Reform Act 5 of 2002 provides that .the primary power to allocate or cancel any customary land right in respect of any portion of land in the communal land area of a traditional community vests: (a) In the Chief of that traditional community; or (b) Where the Chief so determines, in the Traditional Authority of that Traditional Community. Article 66 (1) of the Constitution of the Republic of Namibia provides , inter alia, that customary law is valid to the extent that it does not conflict with statutory law. Accordingly allocation or cancellation of customary rights is determined in accordance with the Communal Land Reform Act. The deceased did not have any authority to confer upon the applicant a customary land right and thus any purported transaction to that effect is a legal nullity. Similarly, the Communal Land Reform Act at Section 26 is unambiguous regarding the duration of a customary land right. It is evident from this section that a customary right is not capable of testamentary succession.