Perhaps they didn’t realise it, but when eight members of Namibia’s Hai||om people went to court for what they claimed was their traditional land, they raised a number of other burning socio-political issues as well. The Hai||om live in a remote northern area of Namibia, overlapping the pristine Etosha National Park, environmentally sensitive and a major world tourist attraction for the country. Could the eight litigants claim the entire park as ancestral land, acting in a representative capacity for all the Hai||om people?
The eight applicants wanted the court to agree that they could represent the minority Hai||om people. That established, they wanted to claim the entire world-famous Etosha National Park – all 23,150 sq kms of it – together with other significant tracts of land. They said this was their ancestral land, and they were being prevented from using it. Failing return of the land, they wanted compensation in land or money.
It is a case flagging other issues that could complicate matters now and in the future.
Their dispute was made more legally fraught because the government has established the Hai||om Traditional Authority (HTA), to speak and act for this minority group of about 6 200 adults. The HTA and the Namibian government were the two most vocal of the 20 entities against whom the case was brought, and they strongly contested the standing of the applicants among other issues.
Although the relationship between the applicants and their designated traditional authority was not clear from the papers, there have been many cases in South Africa where traditional communities are unwilling to be represented by the officially-recognised leadership. This is often because the people see their traditional leaders as corrupt and intent on keeping power and what should be community wealth in their own hands, as well as being compromised by their relationship with government.
Then there are the environmental questions implicit in the application. Brought against wildlife organizations, resorts and conservancies as well as mining outfits, the case could clearly have questioned the current use of the land claimed by the Hai||om. Given the world-wide significance of the Etosha park for eco-tourism and conservation, the stage was set for a dispute of great significance.
The three judges who heard the matter decided that it would turn on yet another question, namely whether the applicants were entitled to bring ‘representative action’. According to counsel for the applicants, they were not bringing a class action. But they claimed that while Namibian law recognized the ‘international law right’ of the Hai||om people, there was no procedural mechanism for them to assert those rights before court.
The judges, who agreed that there was currently no mechanism to enforce their rights in a representative action, described the case as a ‘rather novel matter’ requiring the court to ‘tread with boldness and apprehension’.
One of the applicants, Jan Tsumib, said he was widely acknowledged as the leader of the Hai||om people. His people were the ‘largest grouping of the San people in Namibia’ and the applicants brought the land claim case in three different capacities: for the Hai||om people as a whole and in the individual capacities of the applicants. Lastly, they acted in a representative capacity, ‘on behalf of the individual members of the … community’.
The spark for the case is that the constitution guarantees the Hai||om people ‘a fair and public hearing’ and also provides that people who claim that their fundamental rights have been infringed may go to court to enforce their rights. However, the rules of court do not make provision for a class action by a group people wanting to exercise their constitutional rights.
They were thus bringing the case ‘seeking guidance’ on how they should go about asserting their rights in a representative capacity. Given that there are a few thousand Hai||om people, it was ‘impracticable’ to join all the individuals as parties and ‘representative action’ was the only appropriate vehicle.
As far as the Namibian government was concerned, however, the HTA was the correct body to deal with the issue of acquiring and holding immovable property for the community. The law also prevented the applicants or anyone else from ‘asserting rights on behalf of the Hai||om people’. If the court were to permit the representative action that the applicants had launched it would ‘usurp’ the authority of the HTA which had legal jurisdiction and authority to represent the people even on questions of acquiring and holding property on behalf of the Hai||om.
The HTA agreed, saying the applicants were just ‘going around and using social issues’ that were in any case being addressed by the government. The HTA said it had jurisdiction over ‘all the Hai||om people’, and the applicants had no right to claim they represented the Hai||om.
Colonisation and apartheid
Under the law, the ‘designated leader’ was Chief David Khamuxab. He said that as leader he had been in talks with the government about how to deal with the impact of colonization and apartheid. What the applicants were trying to do was ‘establish a parallel structure’ for the Hai||om. This was not allowed and was actually a criminal offence to which the courts could not be party.
The government said the law made it clear that representative authority was vested in the HTA only. The judges agreed, saying the HTA would have been the competent body to bring an application of the kind before the court. According to the applicants however the HTA was too close to government, was legally obliged to co-operate with it and thus had a ‘permanent conflict of interest’ that would make it impossible for the HTA to represent the Hai||om people. A challenge of the kind they had in mind, required another entity to bring the applications, they argued.
The three judges disagreed and said on a proper interpretation of the law it would be possible for the HTA to challenge the government and to ‘assert and protect the constitutional and international law rights’ of the Hai||om people.
They therefore dismissed the application, but with no order as to costs.
Though the case ended in defeat of the application, it gives outside observers an inkling of the disputes raging in this remote area – enormous land claims, environmental issues, personality conflicts and challenges to a statutory body seen by some as unwilling to take action on behalf of the community against the government.
*The case was heard by deputy judge president, Hosea Angula, with Judges Nate Ndauendapo and Thomas Masuku
*Newsletter, Judicial Institute for Africa (Jifa), 6 September 2019