WINDHOEK – High Court Judge Thomas Masuku has ordered a farmer to remove a fence that he erected in 2015 on a farm in Oshikoto Region, saying the act was illegal.
Judge Masuku made the order on October 18 in the case of Martin Hafeni Kaishungu who approached the High Court to appeal the decision taken by the chairperson of the Appeal Tribunal for Elifas Kavale to erect a fence on the farm.
Kaishungu was granted rights to communal land on farm Okulimi in Oshikoto, after his father had passed on in 2011. The rights to the farm in question were shared with Kavale until the Ondonga Traditional Authority decided to give the rights exclusively to Kaishungu, leaving Kavale to exercise any such rights at the pleasure of Kaishungu.
Dissatisfied with this arrangement, Kavale approached the chairperson of the Appeal Tribunal to appeal – a process that Kaishungu was not a part of. His appeal succeeded in terms of which Kavale then erected a fence on the farm, dividing it into two equal portions.
“The respondent never complied with the applicable law in erecting the fence in question, which I must authoritatively state, is not a structure. His erection, which is a criminal offence, may not, for that reason, be recognised as lawful,” said Judge Masuku.
The court noted that Kavale was supposed to have applied to the relevant land board for leave to erect the fence in question, which he failed to do.
According to Judge Masuku, by law the Ondonga Traditional Authority has no power to grant the authorisation which Kavale required, and that only the Communal Land Board possessed such power of authorisation.
Thus, the fence erected by Kavale on the farm was in violation of the provisions of Section 18(a) of the Communal Land Reform Act, No. 5 of 2002 which states that no fence of any nature shall be erected or cause to be erected by any person on any portion of land situated within a communal land area.
The court set aside the decision taken by the Appeal Tribunal and ordered Kavale to remove the fence within 30 days. Furthermore, the Minister of Land Reform, Chairperson of the Appeal Tribunal and Kavale were ordered to jointly pay the cost of the appeal.