Case number:.

IN THE HIGH COURT OF NAMIBIA

HELD AT WINDHOEK

In the matter between:

THE N#JAQNA CONSERVANCY COMMITTEE

Applicant

THE MINISTER OF LANDS AND RESETTLEMENT

1st Respondent

THE CHAIRPERSON OF THE OTJOZONDJUPA COMMUNAL

LAND BOARD

2nd Respondent

THE !KUNG TRADITIONAL AUTHORITY

3rd Respondent

MINISTER OF ENVIRONMENT AND TOURISM

4th Respondent

TECKLA LAMECK

5th Respondent

JACQUES MUTJAVIKUA

6th Respondent

ISRAEL JONAS

7th Respondent

HILDA NAKASHOLE

8th Respondent

MR HAASHELA

9th Respondent

MR KENNEDY

10th Respondent

MR KAMWANGA

11th Respondent

CHRISTINE GOASES

12th Respondent

MESAG MURUKO

13th Respondent

ELSA NGWAPPIA

14th Respondent

KHALAHARI HOPE PROJECT

15th Respondent

NESTOR VALOMBOLO

16th Respondent
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MOSES SHAKELA

17th Respondent

MR WAKALIPI

18th Respondent

MR PETER

19th Respondent

AMUTENYA KROBIANUS VISKAYA

20th Respondent

MICHAEL TAMBAI

21st Respondent

SIMON NGUULONDO

22nd Respondent

SHIPIKI HAMUNYELA

23rd Respondent

AXEL NAMBAHU

24th Respondent

MICHAEL MUULU

25th Respondent

LEONARD HAUNAWA

26th Respondent
27th Respondent

SAKARIA HANDIYA
SALOM HAINANA

28TH Respondent

MATAKO TJIANDA

29th Respondent

MR NYATHI

30th Respondent

MR KADAFI

31st Respondent

MR KALAULA

32nd Respondent

MR KAFIDI

33rd Respondent

TEN KATJOHOA

34th Respondent

ELME KATJIVISE

35th Respondent

SIMON TANGENI KALIMBO

36th Respondent
FOUNDING AFFIDAVIT

I, the undersigned, SARAH ZUNGU, do hereby make oath and state:

1.

All of the facts deposed to by me herein are within my own personal knowledge, unless
indicated to the contrary or as the context may imply, and are to the best of my belief
both true and correct. Where I make a statement of a legal nature, I do so on the advice
of my Legal Representatives, which advice I verily believe to be correct.
2.
I am an adult Namibian citizen, reside at Omatako, and I am the chairperson of the
applicant and am also a councilor for the 3 rd Respondent and have been so since its
statutory recognition in.

3.
I am duly authorized to depose to this affidavit and further authorized by the applicant to
institute these legal proceedings.

In this regard I annex hereto

an extract of the

minutes of a special meeting held by the applicant on 18 th June 2013 in terms of which
it has been resolved that I am so duly authorized, marked SZ-1.
4.
The

Applicant

is

the

CONSERVANCY

COMMITTEE

OF

THE

N#JAQNA

CONSERVANCY, a conservancy committee, duly recognised as such in respect of a

communal area conservancy and duly declared as a communal area conservancy in
terms of Section 24A of the Nature Conservation Ordinance, No 4 of 1975 as amended
3

by the Nature Conservation Amendment Act, No 5 of 1996, with its principal place of
business at Mangetti Dunes, Otjozondjupa Region, Namibia. I annex hereto SZ-2,
being a copy of an extract from the Government Gazette No 3027 of Namibia dated 24
July 2003 notice number 162 declaring the applicant as a conservancy.
5.
At all material times hereto the Applicant has been duly constituted and has a direct and
substantial interest in this matter for the reasons set out more fully below.
6.
The First Respondent is the MINISTER OF LANDS AND RESETTLEMENT. The first
Respondent is cited herein in his official capacity as the Minister whose function is to
administer the Communal Land Reform Act 5 of 2002 and to oversee the overall
administration of the Second Respondent. The First Respondent has its official address
at No. 55 Robert Mugabe Street, Windhoek, Republic of Namibia, within the jurisdiction
of the above Honourable Court.

7.
4

The Second Respondent is the CHAIRPERSON OF THE OTJOZONDJUPA

COMMUNAL LAND BOARD cited in his representative capacity on behalf of the
Otjozonjupa Communal Land Board, a statutory administrative body, duly established
by the First Respondent in accordance with Chapter 2 of the Communal Land Reform
Act 5 of 2002, and which has its official address at Dr Frans Indongo Street,
Otjiwarongo, Republic of Namibia, within the Jurisdiction of the above Honourable
Court.
8.
The Third Respondent is the TRADITIONAL AUTHORITY OF THE !KUNG
TRADITIONAL COMMUNITY, designated as such in terms of the erstwhile Traditional
Authorities Act 17 of 1995, which has since been repealed, but by virtue of the savings
provision in the Traditional Authorities Act 25 of 2000, such recognition and designation
has continued and is deemed to have been done under the equivalent provisions in the
2000 Act.

The offices of the Third respondent are situated at Omatako Valley,

Otjozondjupa District, Republic of Namibia,

Honourable Court.

within the jurisdiction of the above

The Chief of the Third respondent, the late Chief John Arnold,

recently became deceased and no successor has yet been appointed.

9.
The Fourth Respondent is the MINISTER OF ENVIRONMENT AND TOURISM, cited
herein in his official capacity as the Minister that has the overall responsibility for the
administration of the Nature Conservation Ordinance 4 of 1975 (as amended). The
Minister is cited herein by virtue of any interest it may have in these proceedings. The
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Applicant seeks no relief from the Fourth Respondent.

The office of the Fourth

Respondent is situated at Uhland Street Windhoek, Republic of Namibia, within the

jurisdiction of the above Honourable Court.
10.
The Fifth Respondent is TECKLA LAMECK an adult female whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock at Plot No 1 Bubi Pos within the Applicant
conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above
Honourable Court.
11.
The Sixth Respondent is JACQUES MUTJAVIKUA an adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with cattle at Plot No 2 Bubi Pos within the Applicant conservancy
at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.
12.
The Seventh Respondent is ISRAEL JONAS and adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock at Plot No 3 Bubi Pos within the Applicant
conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above
Honourable Court.
13.
6

The Eighth Respondent is HILDA NAKASHOLE, an adult female whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business

and farms with livestock at Plot No 4 Bubi Pos within the Applicant

conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above

Honourable Court.
14.
The Ninth Respondent is MR HAASHELA, an adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock at Plot No 1 Bubi Pos within the Applicant
conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above
Honourable Court.
15.
The Tenth Respondent is MR KENNEDY, an adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock at Plot No 1 Bubi Pos within the Applicant
conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above
Honourable Court.
16.
The Eleventh Respondent is MR KAMWANGA, an adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock at or near Omatako Rest Camp within the Applicant
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conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above

Honourable Court.
17.
The Twelfth Respondent is CHRISTINE GOASES, an adult female whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock at Grashoek Pos 2 within the Applicant conservancy
at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.

18.
The Thirteenth Respondent is MR MESAG MURUKO, an adult male whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock at Bubi Pos within the Applicant conservancy at
Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.
19.
The Fourteenth Respondent is ELSA NGWAPPIA, an adult female whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock at Plot No 1 Bubi Pos within the Applicant
conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above
Honourable Court.

20.
The Fifteenth Respondent is the KHALAHARI HOPE PROJECT, an organisation whose
full and further particulars are to the Applicant unknown and who resides, alternatively
conducts business within the Applicant conservancy at Mangetti Dunes, Otjozonjupa,
within the jurisdiction of the above Honourable Court.
21.
The Sixteenth Respondent is NESTOR VALOMBOLO an adult male whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock

in the Kanovlei Area within the Applicant

conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above

Honourable Court.
22.
The Seventeenth Respondent

is MOSES SHAKELA an adult male whose full and

further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock in the Kanovlei Area within the Applicant conservancy
at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.
23.
The Eighteenth Respondent is MR WAKALIPI an adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business in the Kanovlei Area within the Applicant conservancy at Mangetti Dunes,
Otjozonjupa, within the jurisdiction of the above Honourable Court.
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24.
The Nineteenth Respondent is MR PETER an adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with livestock in the Kanovlei area within the Applicant conservancy
at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.
25.
The Twentieth Respondent is AMUTENYA KROBIANUS VISKAYA an adult male whose
full and further particulars are to the Applicant unknown and who resides, alternatively
conducts business and farms with cattle in the Kanovlei Area within the Applicant
conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above
Honourable Court.
26.
The Twenty First Respondent is MICHAEL TAMBAI, an adult male whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with cattle in the Jazu Area within the Applicant conservancy at
Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.
27.
The Twenty Second Respondent is SIMON NGUULONDO, an adult male whose full
and further particulars are to the Applicant unknown and who resides, alternatively
conducts business and farms with cattle in the Jazu Area within the Applicant

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conservancy at Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above

Honourable Court.
28.
The Twenty Third Respondent is SHIPIKI HAMUNYELA, an adult male whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with cattle in the Jazu Area within the Applicant conservancy at
Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.
29.
The Twenty fourth Respondent is AXEL NAMBAHU an adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with cattle in the Jazu Area within the Applicant conservancy at
Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.

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30.
The Twenty fifth Respondent is MICHAEL MUULU an adult male whose full and further
particulars are to the Applicant unknown and who resides, alternatively conducts and
farms with cattle in the Jazu Area within the Applicant conservancy at Mangetti Dunes,
Otjozonjupa, within the jurisdiction of the above Honourable Court.
31.
The Twenty Sixth Respondent is LEONARD HAUNAWA an adult male whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
and farms with cattle in the Jazu Area within the Applicant conservancy at Mangetti
Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.
32.
The Twenty Seventh Respondent is SAKARIA HANDIYA an adult male whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with cattle within the Applicant conservancy at Mangetti Dunes,
Otjozonjupa, within the jurisdiction of the above Honourable Court.
33.
The Twenty Eighth Respondent is SALOM HAINANA an adult male whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business in Jazu Area within the Applicant conservancy at Mangetti Dunes,
Otjozonjupa, within the jurisdiction of the above Honourable Court.
34.
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The Twenty Ninth Respondent is HILDA NAKASHOLE an adult female whose full and
further particulars are to the Applicant unknown and who resides, alternatively conducts
business and farms with cattle in the Bupi Pos Area within the Applicant conservancy at
Mangetti Dunes, Otjozonjupa, within the jurisdiction of the above Honourable Court.
35.
The Thirtieth Respondent is MATAKO TJIANDA, an adult male, whose full and further
particulars are unknown to the Applicant and who resides at Kameelwood Village, within
the geographical boundary of the Applicant at N#a Jaqna Conservancy, Otjozondjupa
Region, Republic of Namibia, within the jurisdiction of the above Honourable Court.
36.
The Thirty First Respondent is Mr NYATHI, an adult male, whose full and further
particulars are unknown to the applicant and who resides at Omatako Valley Rest
Camp, within the geographical Boundary of the Applicant at N#a Jaqna Conservancy,
Otjozondjupa Region, Republic of Namibia, within the jurisdiction of the above
Honourable Court.
38.
The Thirty Second Respondent is Mr KADAFI, an adult male, whose full and further
particulars are unknown to the applicant and who resides in Omatako Village, within the
geographical Boundaries of the Applicant at N#a Jaqna Conservancy, Otjozondjupa
Region, Republic of Namibia, within the jurisdiction of the above Honourable Court.
39.
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The Thirty third Respondent is Mr KALAULA, an adult male, whose full and further
particulars are unknown to the applicant and who resides in Omatako Village, within the
geographical Boundaries of the Applicant at N#a Jaqna Conservancy, Otjozondjupa
Region, Republic of Namibia, within the jurisdiction of the above Honourable Court.
40.
The Thirty Fourth Respondent is, Mr KAFIDI, an adult male, whose full and further
particulars are unknown to the applicant and who resides in Omatako Village, within the
geographical Boundaries of the Applicant at N#a Jaqna Conservancy, Otjozondjupa
Region, Republic of Namibia, within the jurisdiction of the above Honourable Court.
41.
The Thirty Fifth Respondent is Mr TEN KATJOHOA, an adult male, whose full and
further particulars are unknown to the applicant and who resides in Omatako Village,
within the geographical Boundaries of the Applicant at N#a Jaqna Conservancy,
Otjozondjupa Region, Republic of Namibia, within the jurisdiction of the above
Honourable Court.

42.
The Thirty Sixth Respondent is ELME KATJIVISE, an adult male, whose full and further
particulars are unknown to the applicant and who resides in Kandu Village, within the
14

geographical Boundaries of the Applicant at N#a Jaqna Conservancy, Otjozondjupa

Region, Republic of Namibia, within the jurisdiction of the above Honourable Court.
43.
The Thirty Seventh Respondent is SIMON TANGENI KALIMBO an adult male, whose
full and further particulars are unknown to the applicant and who resides in
Kameeldoring

Village, within the geographical Boundaries of the Applicant at N#a

Jaqna Conservancy, Otjozondjupa Region, Republic of Namibia, within the jurisdiction

of the above Honourable Court.
THE APPLICATION
44.
The applicant seeks an order in the form of a final interdict to restrain the relevant
Respondents from continued unlawful occupation, illegal fencing and livestock farming
on its conservancy for the reasons set out more fully below.
45.
In terms of the Applicants constitution, copy of which is annexed hereto marked SZ-3,
the primary objective of the conservancy shall be to enable the inhabitants of the
conservancy to derive benefits from the sustainable management and consumptive and
non-consumptive utilization of natural resources in the Conservancy.

I direct the

Honourable Courts attention to article 5.1 of annexure SZ-3 in this regard.

46.
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In terms of the constitution of the Applicant at article 5.2 (i), the Conservancy shall, inter
alia, manage the wildlife resource in accordance with acknowledged conservation
principles contained in the wildlife Management Plan drawn up in conjunction with the
4th Respondent.

47.
Generally the Applicant is obliged to deal with the communitys property and rights in
accordance with the objectives of the constitution and not only for the benefit of the
members of the Applicant but also other inhabitants in the conservancy area which for
the most part are !Kung Traditional Community. The Conservancy Committee, the
applicant, is empowered by virtue of the Nature conservation Ordinance at Section
24(A)(4) to make certain management decisions according to the conservancy
constitution and the management committee of the applicant is responsible for the dayto-day operations of the conservancy.

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48.
The N#Jaqna Conservancy was proclaimed in July 2003 and covers an area of 9120
square kilometers and supports approximately 5000 people, including those who have
rights as conservancy members.
49.
The inhabitants of the conservancy area pursue a mixed economy including livestock
farming, gathering of bush foods, small scale crop farming and wage labour.
Unemployment among the conservancy inhabitants is high and ultimately all of the
inhabitants depend primarily on the usage of the commonage resources to sustain
themselves. The lawful inhabitants of the conservancy are by and large a marginalized
and poor community.
50.
The Applicants integrated Management Plan was approved by the Third Respondent an
is an integral part of the procedure required to establish a conservancy and is as such
binding on the conservancy committee insofar as it relates to the conditions under which
the N#a Jaqna Conservancy was approved and proclaimed by the Fourth Respondent.
Indeed, the Fourth respondent has the statutory power to revoke the status of the
Conservancy should the conservancy, inter alia, fail to adhere to the conditions
according to which the conservancy is to be managed.

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51.
The Conservancy consists largely of Kalahari sands overlying a flat landscape of
broadleaf and acacia woodland and has no permanent surface water. It is also home to
a variety of important wildlife species. While the area does not receive much rainfall,
natural pans form during the rainy season and form important watering points for both
the wildlife and other domestic livestock in the conservancy that belongs to the local
communities and are authorized to be kept provided that they are managed within the
parameters of the management plan of the conservancy.
52.
The most common wildlife animals in the conservancy are eland, Caracal, Black-backed
Jackal, Brown Hyena, Spotted Hyena, Elephant, Kudu, Duiker, Steenbok, Warthog
Porcupine, Shrub-hare and Bat eared Fox while less common species include
Gemsbok, Giraffe, Roan antelope, Impala, Aardvark, Pangolin, Cheetah, Wild dog,
Side- striped jackal, Lion, and Leopard. Among these species are endangered animals
and vulnerable animals.
53.
In order to sustainably manage the conservancy various areas are demarcated for
specific use in relation to conservation of wildlife in accordance with the management
plan. This plan recognises that while there are many species of wildlife resident in the
conservancy, their numbers are low. Accordingly wildlife re-introduction and water point
development is a priority for the applicants management committee.

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54.
Thus, in order to manage and utilize the natural resources of the Conservancy in a
sustainable manner that maximizes the benefits derived by the conservancy for its
members and inhabitants, the conservancy was divided into a number of management
units at its inception and through a participatory planning exercise in which the entire
community was engaged. In each zone specific management activities are undertaken
according to the natural endowments of the particular zone and the desires or needs of
the members and inhabitants generally.
55.
The management units include the core wildlife zones, mixed farming zones, tourism
zones, current settlement zones and a sensitive zone. There is a body of Natural
Resource zoning maps produced by the applicant in conjunction with the third
respondent including the zoning map and individual maps for the different village areas
of the conservancy.
56
The zoning plan was conducted with the membership of the conservancy at the village
level and was then adopted by the Applicant, including the late Chief of the !Kung
Traditional Authority and those representing the 3 rd Respondent on the Applicants
management committee in March of 2004.

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57.
The Applicants management committee has implemented a control system for the core
wildlife areas and the membership of each village has decided on a control system for
their village area that is in line with local environment and needs of the membership at
the village level.
58.
The Zoning plan is thus an important tool by the members of the applicant in order to
safeguard the environment and optimize benefits received by the membership through
the conservancy structure.
59.
The core wildlife zones are in areas in the South and the North of the Conservancy and
are the richest area of the conservancy in terms of wildlife and diversity. These areas
should be free of permanent settlement and farming, mainly also as a result of the lack
of permanent water points. These areas are extremely scenic and present substantial
opportunities for both non- consumptive and consumptive tourism.
60.
Development of these zones

has required careful planning in order to prevent

irreversible damage to the fragile area and to minimize the social impact of tourism
operations in these areas.

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61.
It is the desire of the applicant to keep tourism development in these areas low-key as
these areas are used by wildlife populations for breeding. The Applicant has pursued
the activities such as wildlife re-introduction, conservancy eco-tourism activities,
opening of additional waterpoints for wildlife, and sustainable harvesting of bush food,
devils claw and other medicinal plants in these zones by the local community.
62.
Forbidden activities in this zone includes poaching, tourism activities not specifically
approved by the applicant, new settlements and grazing of livestock.
63.
The mixed farming zones is suitable to both grazing and browsing. Livestock and crop
farming is viable in these zones. The zoning of these areas also allows for grazing to
take place in areas less affected by the Gif-blaar, a poisonous plant.

Livestock

farming receives priority in these areas but under strict herd control in order to protect
adjacent zones.
64.
Activities that are permissible in these areas are livestock farming, crop farming,
settlement, collection of bush food and medicinal plants and small-scale cultivation of
devils claw. Hunting is not permitted and only cultural tourism activities are pursued
here.

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65.
The tourism zone plays host to a number of important species of wildlife and are rich in
biodiversity. In addition to the scenic nature of these areas and their relative proximity
to existing settlements make them ideal locations for cultural tourism developments
which are viewed as an important income generating activity for the members of the
conservancy. In order to protect the pristine natural environment and the wildlife that
depends on it, and to allow the full cultural tourism potential of these areas to be
realized, new settlements and the unauthorised grazing of livestock has not been
allowed by the applicant or the Third Respondent. The tourism zone is conducive to
tourism development, such as the Omatako campsite that generates income for the
local population employed at the site and for the Applicant. Activities that have been
allowed in these areas are sanctioned tourism activities and the collection of bush food
and other medicinal plants.

66.
The Sensitive zone is located adjacent to the tourism zone and it is zoned as sensitive
due to the fragile biodiversity of the area and the reliance of the tourism development on
this biodiversity as an eco-tourist attraction. Tourism in this area is kept low-impact and
tourists are guided by professionals who know the area and can guide the tourist in
order to avoid unnecessary damage to the environment. Authorised collection of bush
food is allowed in this area but no settlement or livestock is permitted.

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67.
Current Settlement Zones are those areas of concentrated human settlement. Due to
the population density and special needs of the population it has been deemed viable to
zone these areas for settlement for administrative and management purposes.
Activities that are permitted in these areas include new settlement, subsistence crop
farming and kraaling of livestock. Outside of these specially designated areas lie the
general commonage which is utilized for authorized grazing purposes by the local
livestock farmers and members of the Applicant.
68.
All of the land on which the conservancy is situated is communal land as described in
terms of Section 15 of the Communal Land Reform Act 5 of 2002 as read with the first
schedule to that Act and the conservancy area is administered according to the above
Act by the First and Second Respondent.
The Issues
69.
During or about the period between 2008 to 2013 the fifth to thirty sixth respondents
unlawfully occupied land in the conservancy and illegally erected their private fences
within the Conservancy outside of a settlement area enclosing the commonage to the
exclusion of the local community and illegally farm with livestock. None of the
Respondent s is a member of the !Kung Traditional Community and none have acquired
any customary or other legal right to occupy the commonage. Despite demand the
Respondents have failed and/or refused to remove their fences or to vacate the
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respective occupied areas and to restore vacant possession of the commonage to the
applicant, its members and the local community generally.

70.

I am advised and indeed, having read the provisions of Section 44(1) of the Communal
Land Reform Act 5 of 2002, I submit that it is illegal for any person to erect any fence of
whatever nature on communal land without the required authorization that may be
granted under that Act or which is not exempted under that Act.

71.

The relevant Respondents have erected their fences after the Communal Land Reform
Act came into force. None of these fences are for the purpose of fencing a homestead,
cattle pen, water trough or crop field as envisaged in regulation 27(3) of the Regulations
contained in Government Gazette No 2926 of 1 March 2003. As such I submit that there
are no applicable exemptions available in the case of the Respondents fences. The Act
does not allow new fences to be built on Communal Land without authorization. The
Respondents have failed to obtain any authorization from the First and/or Second
Respondents
72.
In addition the Area within the conservancy is habitually occupied by the !Kung
Traditional Community since time immemorial. The Third Respondent is the Traditional
24

Authority for the area and accordingly has the primary power to allocate customary
rights to occupy land. The Third Respondent is also represented on the committee of
the applicant and may not allocate land for customary use rights contrary to the
applicants management plan. In any event, even though the chief or the Traditional
Authority has the primary power to allocate customary land rights, such rights are of no
legal force or effect until properly ratified by the First and/or Second Respondent in
accordance with the provisions of the Communal Land Reform Act.

None of the

relevant Respondents have lawfully obtained rights to occupy the areas of the
commonage as described above and are accordingly unlawful occupants.

73.

The illegal fencing and unlawful occupation and unlawful livestock of the relevant
respondents has had and is having numerous adverse affects on both the human
population of the conservancy and the wildlife. The fences are interfering with the
movement of wildlife, and thus their numbers, upon which the development of the
conservancy is based; open access to land and natural resources which people have as
of right to utilize for their livelihoods are being denied; grazing and foraging of both
wildlife and authorised livestock are being compromised. The problem is compounded
in that people are using wildlife and tourism zoned area to graze cattle due to the
inaccessibility of demarcated grazing areas that have been illegally fenced off by the
relevant respondents.

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74.
I also point out that the problem with the fences is further exacerbated by the fact that
the Respondents illegal fences are not the only illegal fences. Other outside people are
also simply arriving with cattle, unlawfully occupying and erecting fences almost at a
daily rate. The anarchical state that now prevails has become characterized by a
fencing frenzy with unlawful occupiers grabbing and fencing their own piece of land in
case they, just like the local community, shall be ultimately deprived of access to the
commonage and its natural resources. Since no effective State action is taken against
the unlawful occupiers and illegal fences there is nothing to deter people from engaging
in this practice.
75.

When the problem started manifesting itself during or about 2008 the applicant tried to
intervene in order to ensure that the conservancy was managed according to its
management plan. We reported the matter to the Third and the Second Respondent
but no action was taken by them to prevent the scourge of illegal fencing.

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76.

Finally, during or about October 2011, and with the assistance of the Fourth Respondent
the applicant obtained GPS co-ordinates of eight of the relevant respondents fences in
order to properly identify them to report their existence to the Second respondent as
required by the Second Respondent. The exercise was time consuming and almost
beyond our capacity. By the time we started taking action against the respondents cited
herein regarding their illegal fences, other fences have been erected and we shall be
obliged in future to have these removed as well. However, it is my submission that if the
fences are not authorized and registered with the Second Respondent they are illegal,
irrespective of their extent, subject to the exemptions provided in the Communal Land
Reform Act which do not have any relevance in this case.

77.

As a councilor of the Third respondent I have also frequently raised the issue of the
illegal settlement and, in particular the illegal fencing problem, but to no avail.
78.

The Second and Third respondent are empowered in terms of Section 44(3) to remove
any illegal fence which is found on communal land. Since the powers are vested in

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these respondents, the Applicant itself has no authority to enforce the provisions of the
Communal Land Reform Act directly.

79.
In this regard, and after having demanded that the relevant Respondents remove their
illegal fences, as the chairperson of the applicant I addressed a letter to the Second
Respondent on or about the 25 th of June 2012 expressing the applicants concerns
regarding the illegal fencing. I annex copy of that letter hereto marked annexure SZ-4.
80.
On or about the 10th of August 2012 the Second Respondents Chief Development
Planner replied with a letter annexed hereto marked SZ-5, the content of which is self
explanatory.
81.
On or about the 30 th of August 2012

the applicant had a meeting with its legal

representatives regarding the issue of the illegal fences.

The Applicants legal

representatives then sent to the Second respondent the letter annexed hereto marked
SZ-6 under cover of which the details requested in the Second Respondents letter of
10 August were posted and emailed.

82.

When I requested what steps had been taken by the Second Respondent from our legal
practitioners on or about the 30 th of August 2012 I was advised that there has been no
28

response to this request to the Second Respondent to begin the removal procedures in
accordance with the Communal Land Reform Act and its Regulations.

83.

On the 13th of September 2012 the Applicants Legal Representatives addressed a

further letter to the Second Respondent requesting a report and also advising of our
concerns regarding the increasing number of illegal fences being erected in the
applicants conservancy area. I annex that letter hereto marked SZ-7

84.

On the 24th of October 2012 the Second Respondent advised that it was in the process
of servicing notices on the eight respondents in respect of whom we sent the Second
Respondent the geographical co-ordinates of the fences. To date no further meaningful
steps have been taken against the Eight respondents against whom the applicant
initially complained.

85.

In the circumstances the applicant has not required any relief from the Second
Respondent in regard to having the unlawful occupiers and their illegal fences and
livestock removed.
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86.

In the premises, I humbly submit that the Applicant has indeed demonstrated that it has
a clear right to utilize the communal land over which it is proclaimed for the benefit of
of its members and lawful occupants according to the Nature Conservation Ordinance 4
of 1975 (as amended) as read with its constitution and approved management plan. I
further submit that the Applicant and its members has a right to the reasonably
unfettered use of the communal land and these rights are asserted against the
respondents who have illegally deprived the applicant and its members of its statutory
and customary law rights.

87.

I further submit that the applicant and its members have suffered an injury in that the
fences have already been erected thus compromising the rights of the Applicant and
undermining the applicants conservancy status for the reasons set out more fully above
and further there is a reasonable apprehension of further irreparable harm due to the
fact that illegal fences are being erected at an unprecedented rate due to the Second
and Third Respondents failure to perform their statutory duty to have them removed.
The present relevant respondents have no regard to the applicants management plan,
their cattle and other livestock are putting unsustainable pressure on local authorized
live stock as well as wildlife in the competition for grazing and browsing. In addition
there is a scarcity of water and water points invested in by the applicant are being
30

damaged by the overabundance of foreign livestock. The settlements of the relevant

respondents does not take cognisance of the fact that the zones are implemented for a
reason and the settlement patterns are haphazard and unplanned.

The local

community do not have access to the fenced off commonage for grazing purposes and
for their own livelihood activities. It is clear that the respondents have means in order to
purchase and erect fences and fence off large tracts of land while the general
community are impecunious and powerless to prevent these unlawful activities to their
own detriment.

88.

As a result of the Second and Third Respondents failure to perform their statutory
functions, I respectfully submit that the Applicant has exhausted any alternative remedy
that it may have had in law to have the illegal fencing occupants and livestock removed
and to take further steps to prevent future illegal fencing and land grabbing occurring on
the applicants conservancy.

WHEREFORE I humbly pray for an order to be granted in favour of the applicant in the
following terms:
(a) The Fifth to Thirty Sixth Respondents be restrained from occupying the areas
they presently occupy;
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(b) That the Fifth to Thirty Sixth Respondents forthwith remove their illegal fences;
(c) That the Fifth to Thirty Sixth Respondents give vacant possession of the areas
they unlawfully occupy to the Applicant within thirty days of the date of this order;
(d) That the Second and Third Respondent are ordered to cause to be removed the
Fifth to Thirty Seventh Respondents, livestock and fences within 31 days of the
granting of this order as provided in terms of Section 44(3) and Section 44(4) of
the Communal Land Reform Act 5 of 2002.

______________________
DEPONENT

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The provisions of Regulation R.1258 published in Government Gazette No 3619 of 21

July 1972 having been complied with, I hereby certify that the deponent has
acknowledged that she knows and understands the contents of this affidavit which was
signed and sworn to before me at

on this the

day of

____________________________
COMMISSIONER OF OATHS
Full names:
Capacity:
Address:

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