By Megameno Shikwambi
Eight members of the Hai||om San community have suffered a setback in their attempt to settle their entire community in a court bid to reclaim the Etosha National Park as their ancestral home.
High Court Judges Angula, Ndauendapo and Masuku this week ruled that the eight did not have standing to represent the whole community. Their attempt to launch a class action lawsuit for now is dead in the water and it is not clear if they will appeal the ruling.
The applicants are Jan Tsumib, Mannetjie Gabiseb, Bandu Komob, Dawid Willem, Annas Ais, Elias !Aokoeob Guxab, Alexander Araeb and Nikodemus Habue Hawaseb.
The eight applicants began their legal battle last year in the High Court whereby they sought to reclaim the Etosha National Park which, as far as they are concerned, was their rightful, ancestral home from which they were driven off.
The eight appeared in court on the 26th of November 2018 last year where they told the panel of judges that they were victims of continued marginalization.
The major aspect of their court bid was first to have the court officially recognize them as legitimate representatives of the entire San community. Their court case took an entire day of deliberation and debate.
What has made the case more complicated is, as far as government is concerned, is the attempt by the eight applicants to institute a class action lawsuit.
The catch-22 situation is that such an undertaking is not allowed as per the provisions of the national constitution.
By definition, a class action lawsuit is one in which a group of people with the same or similar injuries caused by the same product or action sue the defendant as a group.
However, the eight have argued that theirs is not a class action law suit. Their lawyers argue that what they are trying to institute was a representative action because, as far as their interpretation goes, they are not seeking to represent a class of people.
The eight applicants have also told the court that if they were to be refused to represent their community in this undertaking, it would be effectively shutting the door in their face from accessing justice.
The lawyers have also argued that the court should not consider whether, by representing the entire San community, the eight would likely be successful.
From what can be deduced from available court documents seen by The Patriot, some of the applicants hail from the Etosha National park.
Others have said they were born there but later dispossessed when the park was formalized and modernized to suit the tourism business.
The situation has been made even more complicated because the Hai!!om Traditional Authority has decided to side with government and refused to entertain the application to reclaim the park.
As far as the authority is concerned, it has to wait for greenlight from government which until now has not yet taken a solid official position on what the way forward is with ancestral land. At present, a commission of inquiry into the issue has been set and is doing its work right around the country.
A thorn in the flesh for the eight applicants is the reality that they have not enjoyed considerable support from members of the community itself. The community of between 6 000 to 6 500 has seen only 2 406 dedicating to support the application. One of the community members who had been in support of the application also removed himself from the court bid.
In the meantime, this legal action to reclaim Etosha was interpreted by Prime Minister Saara Kuugongelwa Amadhila as something that had come out of the blue, which in other words, had taken government by surprise.
A panel of three judges has been sitting on this case, comprising judges Hosea Angula, Nate Ndauendapo and Thomas Masuku.
The lawyers who are fighting the application have argued that the community never at one time had any right over Etosha, as a collective.
“Even if the Hai||om people acquired land rights collectively as a people, these rights were extinguished before independence in March 1990. Further, there is no basis for a claim of compensation for the historical dispossession of land rights under the constitution, legislation, the common law, and international law,” they submitted.