The Supreme Court ruled the Herero Royal Red Flag Association has a legal claim to a city plot of which the rival faction wants ownership.
On Monday, appeal judges Peter Shivute, Sylvester Mainga and Theo Frank said the Herero Royal Red Flag Association (HRRFA) has the legal standing that would allow it to own land and litigate on its name.
“It (HRRFA) was a party to a contract for the purchase of the property from the municipality – and despite such contract, the property, which was supposed to be transferred to it, was transferred to the Red Flag Association,” said the judges.
Adding to this version, HRRFA has a legally recognised interest in respect of its claim for the property to be registered in its name.
The court ordered the matter to return to the High Court for finalisation, and the Herero Red Flag Association (HRFA) should pay the cost of the appeal.
HRRFA approached the Supreme Court after the High Court ordered the cost that they lacked the required legal standing in a special plea raised by HRFA.
In the High Court matter, the HRRFA was asking the court to order that the title deeds of Erf 6297 in Katutura, where the Ovaherero community’s Commando Hall, known as Commando 2, situated in Windhoek, should be changed to reflect the association as being the owner of the property.
It was also asking the court to evict HRFA from the property.
According to the evidence before the court, from the 1970s, the Red Flag Regiment occupied and used land that belonged to the Municipality of Windhoek to maintain, inculcate and promote the culture of the Otjiherero-speaking people.
The land, which consists of three plots, was utilised to build the chief’s home; the second erf was used to build a church, and the remainder is where the ‘Commando’ is.
In 1994, the Regiment decided to take up an offer from the municipality to purchase the ‘Commando’ erf.
HRRFA was created at a meeting by the regiment for purposes of purchasing the ‘Commando’ erf.
On 16 May 2000, the Royal Red Flag Association, as a voluntary association, entered into a written deed of sale agreement with the municipality for the purchase of the ‘Commando’ erf in Katutura.
The municipality gave instructions to its legal practitioners to pass transfer to the Royal Red Flag Association in May 2006 upon payment of the full purchase price.
A power of attorney to pass transfer, dated 18 May 2007, indicating that the municipality sold the property on 16 May 2000 to the Royal Red Flag Association, was prepared, granting the municipality’s legal practitioners the power to register the transfer of the property to the Royal Red Flag Association.
In the power of attorney, the word ‘royal’ in the Royal Red Flag Association was deleted, and this deletion was endorsed by signatures accompanying the deletion.
As a result, the power of attorney indicated the sale of 16 May 2000 was between the HRFA (the first respondent) and the municipality, and that the transfer of the property had to be made to the HRFA.
The transfer was, thus, made to the Herero Red Flag Association.
-mamakali@nepc.com.na