The Concept of “Indigenous Land Tenure” Surfaces in Namibia: A Comparative Overview ‒ Agnes Kahimbi Kashela v Katima Mulilo Town Council (SA 15/2017) [2018] NASC 409 (16 November 2018)

The facts in this case, which fell to be decided by the Supreme Court of Namibia in November 2018, can be succinctly put: in 1985, Ms Kashela’s late father was allocated a piece of land as part of communal land by the Mafwe Traditional Authority (MTA) in the Caprivi region of the then-South West Africa (now Namibia). In 1985, the Caprivi region fell under the then-South West Africa Administration. Following the independence of Namibia on 21 March 1990, all communal lands became property of the state of Namibia by virtue of section 124 of the Constitution of Namibia Act 1 of 1990, read with Schedule 5 of the Constitution. Paragraph (3) of Schedule 5 of the Constitution states that the afore-mentioned communal lands became property of the state “subject to any existing right, charge, obligation or trust existing on or over such property”.