Apart from creating an international border on a map, Namibian independence did not change much immediately for the lands on which river-folk lived near the Orange River. As previous chapters show, the new Namibian government did not urgently buy up farmland to expand communal areas or even to cultivate a Black commercial farming class. Although land-reform policies would come, this would be only in the mid-1990s. Nevertheless, the remoteness of the lower Orange River meant that the Bassons and other river-folk could still move along the river somewhat unencumbered for some time, so long as they did not interfere with Chiebella’s irrigation works at Haakiesdoorn on the Namibian side or Niemöller’s date production on the South African bank. Much of the Namibian lands were owned by absentee landlords like Steen Severin, or else aged and infirm farmers like Gerrit Luttig. Furthermore, crossing the river was not heavily policed yet, so it was possible still to work on the South African side if needs arose.
However, this apparent independence and autarchy was really an illusion because it was a result of isolation, and ignorance on the part of the state and of international capital. In fact, the river-folk’s land tenure was no more secure than during the apartheid years. With the arrival of Sean Gilbertson and Willem Agenbach in the twenty-first century, they would be isolated no more. As the Norechab Sand & Tent Club paddled their kayaks down the Orange River in October 2005, Sean saw portions of Severin’s and Luttig’s properties, which were utterly stunning, beautiful, and offered the possibility of both adventure and luxury. Once he brought in Agenbach as his Namibian business partner and finalised the sale in 2007, Sean’s new company quickly sought to make better use of the Orange River for its ‘conservation’ activities.
Although Namibian independence did not necessarily change the political economy of land tenure for the Bassons and other river-folk, it did change the way they related to the state and to the law: Whites and Blacks were now fully equal citizens. The land question could now be viewed as both a political project and a legal one. Whereas White landowners invoked a libertarian discourse of property rights and business expediency to secure their interests in post-apartheid Namibia, many Black Namibians increasingly entered the land debate from an oppositional stance – one that emphasised the legacies of historical injustices and advocated for the restoration of ancestral land rights. These two viewpoints – property rights vs. ancestral rights – stand in direct opposition
Graveyard of the Basson family on Girtis farm
PHOTO: B.C. MOORE, 2021
This chapter steps back from considering the Orange River-Karoo Conservation Area (ORKCA) and its constituent members as a conservation organisation – the subject of the past several chapters – and instead, examines the ways in which these private nature conservationists have used the law to resist post-apartheid ancestral land claims. This chapter, therefore, understands these conservationists as landowners with title deeds undertaking extraordinary measures to maintain exclusive ownership and use of these landscapes. We also consider the struggles by Willem Basson III, his family and other river-folk to invoke legal precedents concerning ancestral land and restitution in their efforts to maintain access for the Bondelswarts community. Finally, we reflect on how rewilding as advocated by ORKCA is a sort of ancestral land project as well, though one that does not consider the human inhabitants who claim ancestral connections.
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I personally feel that us who have survived thus far should get our farm back to start afresh on a commercial basis. I, Mr. Basson am with a commercial brand number in the communal land. I am desperately in need of land and find it unfair that Josef de Witt who is a born South African and lives in South Africa possesses my rightful land whilst I am struggling.
Jerry Ekandjo never wrote back to Basson, and Pelgrimsrust would be sold to Pete Morkel a few years later. Nevertheless, this letter reveals ways in which Black Namibians increasingly realised that the land question was not only a political one based on the promises of the anti-apartheid liberation movement; the law had to be used to uphold these promises.
By the second half of the 1980s, it was clear to most that South Africa’s presence in Namibia was unsustainable, and it was time to adopt United Nations Resolution 435 to grant Namibia political independence. Very few White Namibians were supporters of SWAPO or of complete separation from South Africa, but they generally split into two camps regarding how to control the transition to independence to hold onto their own interests as securely as possible. On the one hand, many Whites from within the National Party endorsed the Privatisation Committee of 1989–1990, which sought to remove White schools, hospitals and social services from state ownership entirely, such that
Twenty two NPP-435 members travelled to Stockholm in June 1988 to meet leading members of SWAPO in a consultative conference mediated by the Swedish Foreign Ministry. For the Whites, it was a fortuitous and productive gathering. They did not meet the same young Marxists who had left Namibia for exile in the 1960s but rather an ageing, weary group of veteran politicians who were falling out of favour with the Soviet Union and Cuba and looking to return to their native land.5 According to the main agricultural representative of NPP-435, Anton von Wietersheim, who was the game-farming chairman for the South West Africa Agricultural Union (see chapter 5), ‘the main thing we spoke about was how the future economy would look and how we would deal with land’.6 ‘We knew that there would have to be some reforms in the way Namibian land would be handled, but we were able to agree that there would be no nationalisation of farmland in a future Namibia’. Indeed, the right to private land ownership would be enshrined in the Namibian Constitution, and all future land reform programmes would have to operate within a market-economy framework. Although it may not have been the organisation’s explicit goal, one could argue that NPP-435 accomplished far more than the National Party ever could have done to maintain White control over land.
Most Namibians – Black, White and Coloured – accepted this Faustian bargain in 1989–1990 as a means to end a bloody war. Peace was achieved, but in order to maintain stability and achieve prosperity more would need to be done, and the new national government understood this. In July 1991, the newly
should not simply be put aside. It should be maintained on the policy agenda concerning land questions … Land claims [must] be given serious attention, taking into account constitutional principles and policies of affirmative action for the historically disadvantaged, impoverished communities and the moral obligation to promote social justice.8
They further advocated regional grassroots commissions to investigate ancestral land claims across the country.
Early the following year, the government finally signed into law the Republic of Namibia’s first piece of legislation to address the land question in the country. The Agricultural (Commercial) Land Reform Act of 1995 set into motion the ‘willing-buyer, willing-seller’, market-based land-reform programme.
This Act set in motion what would eventually be formalised in 2001 as the National Resettlement Programme (NRP), which would target Namibians from specific groups for resettlement on purchased farms. They would include San citizens, soldiers of the former anti-apartheid army, Namibians formerly in exile, disabled citizens, those living in overcrowded conditions, as well as ‘displaced, destitute and landless Namibians’.11 Settlement would be predicated on a willingness to engage in formal agriculture and to occupy land on a leasehold basis – resettlement farms belonged to the government, not the farmer.12 The NRP would run alongside the parastatal Agribank’s Affirmative Action Loan Scheme (AALS), which was founded in 1992 to provide low-interest loans to upstanding farmers from previously disadvantaged communities who were looking to buy commercial farmland on the open market.13
Both the NRP and the AALS have been a modest success. However, these tentative gains belie structural problems, which led to their rapid decline over the past decade. The problem with market-based land reform is that unless the government suspects disparities in the price offered to it compared with the open market, post-waiver, it is the farm owners themselves who set the price that the Ministry (or the AALS farmers) must pay. Once land reform became a political project, farm owners deliberately increased sale prices dramatically; if the post-apartheid government wanted to uphold its promises to Black Namibians, it would have to pay the Whites dearly. In the twenty five years after independence, the average farm price rose from NAD 76 to nearly NAD 1,100 per hectare,
Farm purchases through Agribank’s Affirmative Action Loan Scheme (1992–2018) and the Namibian Government’s National Resettlement Programme (2004–2014), plotted alongside increasing land prices in Namibia.14
The number of AALS farmers declined dramatically after 2004, and although the Ministry continued to purchase farmland through the NRP, this was insufficient to redress the longstanding injustices of colonialism and apartheid. Furthermore, the broad focus of Namibian land reform remained centred on agricultural production and bringing Black people into a sector once dominated by Whites. There was little consideration of using resettlement farms for other purposes, such as tourism, research, commercial hunting or conservation. Lease contracts explicitly forbid building hotels or engaging in hunting
Tensions rose sharply in December 2016, when the Deputy Minister of Land Reform, Bernardus Swartbooi, was fired by President Hage Geingob for publicly declaring that his fellow Namas in southern Namibia were being sidelined in the resettlement process by those with Ovambo or Kavango backgrounds.17 He quickly founded a political party, the Landless People’s Movement (LPM), and declared his intention to run for president with a land-first political programme. Though his party is not ethnic in origin, its platform unsurprisingly meant that it sourced most of its support from the Nama, Damara and Herero communities of central and southern Namibia. However, since the main political agenda of LPM is far removed from the daily lives of people living in northern communal areas – who make up more than forty five per cent of the population – the LPM and Swartbooi could only ever be a very vocal opposition movement carrying the majority of the sparsely-populated constituencies south of Windhoek.
The rise of Swartbooi accompanied increased demands from the rural poor and civil society for greater accountability in the land reform programme. Not only was an insufficient quantity of farms being purchased, but there were also allegations that some land reform beneficiaries were in fact high-ranking officials and businesspeople with connections to the anti-apartheid movement.18 This sparked demands by traditional authorities and civil society for a list of NRP beneficiaries to be published, and for a second conference to reformulate land reform policy.19 The master beneficiary list was supplied only in October 2018, days before the agreed-upon Second Land Conference. The list revealed that although ethnic preference and elite capture were not completely absent
In the months running up to the 2018 Second National Land Conference, civil servants and traditional authority members across the ǁKaras Region gathered in Keetmanshoop to prepare their list of concerns, recommendations and demands. Front and centre were issues of historical injustice and ancestral lands, and the Keetmanshoop congress began the demands with a simple request: ‘Government needs to recognise that ancestral land exists’.21 Further recommendations were more specific: right of access to grave sites on commercial farms; seventy per cent of resettlement farms should be allocated on an ancestral basis to local traditional authorities; independent ancestral land tribunals should be established to review claims. Importantly, the participants understood that part of the problem with advancing an ancestral land agenda lay in the Namibian Constitution itself. Thus, they recommended the ‘Constitution to be amended, where required, to meet the needs and demands of Indigenous people’.22
When the participants of the Second National Land Conference met in October 2018, it became clear that the conference was poorly organised and reflected an increasing distance between the government in Windhoek and the rural poor elsewhere.23 Most of the resolutions were about reforms to urban and communal land tenure, but the conference did make a few crucial points relevant to the situation in southern Namibia. First, it was made clear that the ‘willing-buyer, willing-seller’ programme was not working and needed to be replaced with something new (which it did not define) to accelerate land reform.24 Second, it called for the establishment of a Presidential Commission of Inquiry on Ancestral Land, which was endorsed by President Geingob in a press release a few days later.25 At the same time, the conference resolved that
Although some progress had been made since independence in addressing the land question, these gains were limited and had not solved the problems that the rural poor face concerning insecure land tenure. The Second National Land Conference revealed that government was increasingly removed from the struggles which its people faced on the ground, especially in more remote parts of the country far from Windhoek. This was particularly the case regarding ancestral land. Nevertheless, previously disadvantaged Namibian citizens continued to petition for recognition of their ancestral rights, and they increasingly turned to the law to do so.
…
Amidst the gradual progress of land reform legislation in Windhoek, in 2010 Willem Basson III’s situation at the Orange River was rapidly disintegrating.
Gate on the D292 road at the entrance to Homsrivier farm
PHOTO: B.C. MOORE, 2021
Basson requested the assistance of the Legal Assistance Centre (LAC) – a non-profit, human rights law firm in Windhoek – to seek an interdict or spoliation order to stop the locking of gates and the construction of private fences on state lands. His brothers Paulus, Ambrosius and Laurentius were trapped at their kraals with no means to exit with their livestock. Facing a locked gate and an apparently intransigent Agenbach, Willem Basson could not take food rations and medicine to his family and his workers, which – if left to continue – would require the river-folk crossing illegally to Witbank on the South African side; certainly not ideal. The LAC drafted a letter to Agenbach demanding that the gate be opened, or legal action would be taken in the High Court against him for unlawful spoliation.28 Agenbach reopened the gate temporarily, but the Sandfontein company continued to build more game-fencing across Homsrivier Farm, rendering northbound movement increasingly difficult.
Agenbach apparently did not want Bondelswarts moving between various kraals along the river (see Figure 93 for map). He took the initiative and hired a law firm in Keetmanshoop to serve eviction orders to the Bassons living near Girtis Farm, which had been purchased by Agenbach’s partner, Sean Gilbertson, in 2009 and registered under the corporation Marwilben Farming cc.29 The eviction notice gave the pastoralists ten days to evacuate the property with their livestock, otherwise Marwilben would demand NAD 100,000 in damages. Willem and Paulus Basson again sought the assistance of the Legal Assistance Centre, which challenged the eviction notice, triggering legal procedures over the following four years. Although the LAC took the case based on their
Once the pre-trial discovery and exchanges of claims and pleas began in 2013, it was clear that there was far more at stake in the Basson case than simply the eviction of small-scale farmers by a larger commercial landowner. In May 2013, Agenbach – representing Marwilben – claimed that the Bassons were ‘unlawfully and maliciously’ occupying his farmland, and he sought eviction, an increased NAD 400,000 in damages, 20 per cent interest on any delayed payments, as well as ‘further and/or alternative relief’.31 Based on knowledge carried down from the generations of his family staying along the river between Homsrivier and Pelladrift, Basson urged the LAC to challenge Agenbach’s claim over the lands on which the river-folk farmed.32 He believed (correctly) that Girtis and other neighbouring properties did not have any river frontage south of the highest high-water mark of the Orange River floods; the river-folk therefore resided on state lands.
The LAC lawyers did exactly this, digging up German-era maps of Girtis, which indeed showed that the southern boundary did not extend to the Orange River waters. They wrote back to Agenbach’s lawyers, requesting them to confirm whether or not Marwilben believed that Girtis extended to the river waters.33 After nearly an entire year of deliberation, the law firm confirmed that, yes, it did believe that Girtis extended south of the high-water mark to the middle (Thalweg) of the river.34 The Bassons, via the LAC, immediately denied the allegations of the plaintiffs’ claims, arguing that they were not on Girtis in the first place, and the exorbitant ‘damages’ to grazing they were alleged to have caused could not have been suffered.35 Furthermore, they initiated a counterclaim, arguing that Agenbach’s and Marwilben’s decision to erect game fences, lock gates and inhibit the Bondelswarts’ ability to utilise lands that their people had occupied since ‘time immemorial’ was a form of illegal
Agenbach’s team responded to the counterclaim by denying that the Bondelswarts had ever historically occupied the area, denying that colonialism and apartheid had dispossessed lands, denying ancestral land claims, denying even that the company had constructed fences at all.37 As the case proceeded towards trial in March 2015, the presiding judge was clear that the two main issues that would be debated were: (1) whether the land on which the Bassons were residing actually formed part of Girtis; and (2) if it did not, whether the Bassons had the right to any form of public servitude through Girtis and other farms.38 However, strangely, and abruptly, Marwilben Farming cc withdrew the case the day before it was to go to trial.39
Some court reporters assumed that Agenbach’s legal team must have realised that Girtis indeed did not touch the Orange River, and that whether the riverbanks belonged to Namibia or South Africa, they were not private lands.40 An alternative possibility, however, is that Sean Gilbertson, long absent in Europe, realised that his company Marwilben was about to go to court, with Willem Agenbach falsely claiming to be a director of it. Agenbach and Gilbertson were indeed business partners on Sandfontein, but Marwilben – which owned Girtis and Norechab – was completely different, and Agenbach had no financial or legal relationship with the company at all. Between 2014 and 2016, Gilbertson’s companies were simultaneously involved not just in internal squabbles between directors, but they were also involved in legal action against the river-folk along the Orange River.
In 2017, while in the process of buying back the assets of his recently liquidated company, Sandfontein and Houmsrivier Properties (Pty) Ltd, Gilbertson hired a team of GIS technicians to establish the southern boundary of Girtis and the location of the river-folk’s kraals. The team did not visit Girtis, but using Google Earth and other software, they declared that the kraals and huts existed higher than the north bank of the river. The report was, however, replete with uncertainties and errors. The technicians acknowledged that they did not actually have the coordinates of the high-water mark, so they had relied merely on vegetation density to calculate this. Furthermore, the report incorrectly claimed that the boundary between Namibia and South Africa was
Small-scale farming at the Orange River: The Basson kraal near Girtis farm
PHOTO: B.C. MOORE, 2021
The question of where exact boundaries lie – whether of farms or of nations – was first asked more than a century ago. As shown in chapters 3 and 4, when South Africa took over Namibia in 1920 and prepared to survey Karasburg District’s farms for sale to Whites, the surveyors were clear that the southernmost farms in Namibia would either be delayed from gazettal until the boundary question was settled or sold explicitly without riparian rights. Even some thirty years after the land was surveyed, the lands branch repeatedly had to send letters to farmers near the Orange River reminding them that they had no riparian rights at all.42 During these years, the administrations on both sides of the river understood that the lack of riparian rights on the north bank was not that Namibia was denied Orange River waters. Rather, Namibia possessed no such water at all. All waters flowing within the Orange River and all lands that the Orange River regularly touched during high flood periods belonged to South Africa.43
The Republic of South Africa recognised Namibian independence in March 1990, repealing all laws on its books that applied to Namibian territory, albeit
On 25 June 2020, at the height of COVID pandemic lockdowns in Namibia, Sean Gilbertson – as the representative of his companies – filed a lawsuit against the entire Basson family. He claimed that they were trespassing on Girtis and Homsrivier ‘by virtue of them driving their cattle and other animal herds onto the plaintiffs’ farms’.47 He sought either full eviction of the river-folk and their animals or else an interdict preventing them from trekking their animals northwards or westwards. At the same time, Pete Morkel – owner of Kambreek and Pelgrimsrust, and at the time an affiliate of Oana/ORKCA – began to put pressure on the Bassons and other river-folk who were trekking their animals eastwards towards Ian Craig’s farm KumKum and Morkel’s Kambreek. Morkel supplied Gilbertson with photos taken near Kambreek, of livestock, kraals and branding irons belonging to the river-folk.48 Pete Morkel filed a similar
Key locations along the lower Orange River, approximated via Google Earth
CARTOGRAPHY: B.C. MOORE
The plaintiffs aver that they do not lay claim to any area beyond the duly demarcated and surveyed borders of their farmlands and to that end accept that they do not have any legitimate claim to the inner banks (the area between the southern border of their farmland and the Orange River) or islands situated in the Orange River.53
Regarding the use of the land near the river and the trekking of livestock across private farmlands, Basson and his legal team invoked a rarely considered legal principle in order to advocate for ancestral land rights: Vetustas.
…
In March 2019, the Ancestral Land Commission – as recommended by the Second Land Conference – was officially appointed by President Hage Geingob and tasked to inquire into the historical, economic, legal and political elements of the ancestral land question in Namibia.54 Throughout the year, the team gathered oral testimonies from traditional authorities and information from historical documents and public comments, in order to inform the team about the seriousness of the issue in various communities. The purpose of the commission was not to investigate any specific land claims but rather to recommend governmental policies to address the ancestral land issue within existing post-apartheid legislation. The interim report was submitted to
Basson’s Cattle near Girtis
PHOTO: L. LENGGENHAGER, 2020
The 797-page report of the Ancestral Land Commission is – with a few caveats – a remarkably conservative document. The report reiterated that it was not possible to address all ancestral land claims, especially those that overlapped in the precolonial period. It declared that all Namibians had suffered land dispossession under colonialism and apartheid, though certain communities within the so-called Police Zone had perhaps suffered more. In this context, the commissioners concluded that restorative justice would need to be a multifaceted project involving land (when possible), as well as a significant focus on ‘renaming of places’, ‘recognition of heroes and heroines’, ‘erection of monuments’, ‘reburial of victims of genocide’, and other symbolic gestures towards affected communities.55 The team declared that the ancestral land question had become such a potent issue because land reform in Namibia ‘is perceived
The Ancestral Land Commission also published more than one hundred pages of testimonies – excerpted and full – from people across Namibia explaining the main land issues in their communities. Although the Bondelswarts Traditional Authority were not visited by the commission, they were invited to submit a written statement about their ancestral land holdings, as well as what restitution and reconciliation would look like for them. The traditional authority’s proposals were quite radical. They demanded the return of lands stretching from the Aussenkehr grape irrigation estates to the ǀAi-ǀAis/Richtersveld Transfrontier Park and across the properties owned by the tourism company, Gondwana, as well as the assets of Sandfontein Lodge and Nature Reserve (Pty) Ltd. If land transfer were not possible, then they would demand a 51 per cent shareholding in all of these landowning companies and 30 per cent benefit sharing from mining licences.58 The Bondelswarts’ claim might have been the most specific – referring to precise farms and shareholding relationships – but most traditional authorities submitted claims with a similar ethos.
Like its forebears, the commission understood the ancestral land question as an all-or-nothing endeavour, which had made it easy to avoid addressing specific claims. This is perhaps what made Willem Basson III’s claim of Vetustas so unique: it represented a type of ancestral land claim that had not been considered by the commission at all, but one that – given recent judgments – will likely become more common as the years go on. When South Africa took over Namibia after the First World War, it introduced the Roman-Dutch legal system from the Cape as Namibia’s common law. This has made post-apartheid Namibian law a hybrid system, involving Roman-Dutch, English, German and customary legal systems operating simultaneously.59 Many aspects of civil law hold onto Roman-Dutch legal principles, from which Vetustas arises.
The Basson family’s kraals, built of reeds and driftwood, near Girtis
PHOTO: L. LENGGENHAGER, 2020
When any state of things had endured so long a time that its origin dated back to a period to which the memory of man did not extend, there was a legal presumption that such origin had been legitimate, and the parties were dispensed from furnishing proof that it was so […] The memory of man, however, in this matter, was not restricted to that which persons themselves remembered, but extended to things stated to the existing generation by that which had preceded it.60
Goudsmit emphasised that although Vetustas rights did not require documentary proof, per se, it did necessitate that a ‘double direction’ [dubbele richting] state of affairs existed. On the one hand, it had to be shown that the current generation understood that a particular right, use or practice had existed for so long that neither they nor their forebears could precisely point to when it began. On the other hand, there also had to be no clear evidence that another
Even before it was formalised in the Digest, the principle of Vetustas was invoked in the Roman empire as early as the second century AD as sufficient justification for the existence of a legal servitude over a particular property, especially as it related to extracting water, grazing and watering livestock, and channelling water to crops.62 Similar to right-of-way and bridleway customary laws in England and Scotland, Vetustas entered Roman-Dutch canon as a historically grounded usufruct right to reasonably use (or traverse) property belonging to another person.
In 2018, a landmark case in South Africa opened the door for Vetustas to impact on jurisprudence related to land reform and ancestral land in Namibia, which follows RSA courts for legal precedent. On the private commercial farm Grootkraal, near Oudtshoorn in the Eastern Cape, stands a small United Congregational Church and its primary school. After the death of the farm owner, his descendants sought to evict the school from the property and prohibit community access to the site. The ‘Community of Grootkraal’ laid a counterclaim seeking a public servitude over that portion of the property for religious, educational and cultural purposes, based on the principle of Vetustas.63 Their case was successful, and a public servitude was established, enabling community members to continue to use and access the school and church.
The Community is not a formal body, nor is it capable of exact definition. It is said to consist of those individuals who have historic and family ties with the Grootkraal area, where they and their forebears have lived
and worked for many generations. By way of example, Ms Kiewits and Ms Tiemie are the fifth generation of their families to have lived and worked in the Grootkraal area. Other deponents claimed a similarly lengthy connection with the area and the property, and one deponent said that she was the ninth generation to have lived there. They and their parents and children attended the school, and they have longstanding connections with the church that has existed on the property, so they say, for nearly 200 years. The members of this Community are largely drawn from the Coloured sector of the population and are historically disadvantaged. They include farmworkers, artisans, domestic workers at local resorts and people working in various capacities at the Cango Caves. Although people come and go from the area, there is obviously a core of people having close family and working relationships with one another and a connection to both the school and the church on the property.64
The acceptance of the ‘Community of Grootkraal’ as an entity capable of entering into legal proceedings concerning ancestral land rights was groundbreaking. The fact that the community was mostly Coloured implies that the ‘community’ could not have logically existed as such prior to, say, 1652, because (following the logic of Vetustas) Coloureds as a population group did not exist prior to that date. Nevertheless, the judgment held that ‘at some uncertain date, between 1820 and the building of the church in the late nineteenth century, a Christian community was established at Grootkraal, with connections possibly to Dyssselsdorp, but definitely to Oudtshoorn’.65 This imprecision qualified as being outside of living memory and within the definition of ‘since time immemorial’, and the historical continuity of the community could be proven based on missionary records, which the court consulted.66 Thus, a potentially heterogenous ‘community’ of disadvantaged peoples could be historically considered outside the auspices of ethnic categories or traditional authorities.
In Namibia, prior to the Orange River case at hand, legal motions that related to ancestral land, broadly defined, were bound within the traditional authorities system, and Vetustas had never been invoked for this purpose. The only other major ancestral land case in Namibia – claims made by members of the Haiǁom San community over Etosha National Park – collapsed in 2019
However, the precedent that the Grootkraal case set regarding Vetustas potentially changes future ancestral land claims. Although Vetustas does not imply the transfer of land ownership or title deeds – and does not necessarily need to result in a legal servitude – it does allow for the potential use of or traversing another’s property based on immemorial use.68 Whereas the Grootkraal case involved a church and its school grounds, the original purpose of Vetustas in Roman-Dutch canon revolved around water, grazing and transhumance. Especially for pastoralist communities in Namibia and South Africa, this element could prove crucial, because land ownership is often of less importance than secured access to grazing, water and trek-paths.
Willem Basson’s invocation of Vetustas was based on the fact that he and his community of Bondelswarts near the Orange River had consistently traversed Gilbertson’s and Morkel’s farms to access other Nama communal areas since time immemorial, and they sought a public servitude to reflect this.69 They elaborated by describing themselves as members of the Bondelswarts Traditional Authority, though comprising a community specific within this ethnic group. It was they who filed the counterclaim, not the traditional authority.
The defendants are all members of the Bondelswart (ǃGamiǂnûn) people, a traditional community duly recognised as such and pursuant to, inter alia, Section 1 of the Traditional Authorities Act 25 of 2000. All of the members of the ǃGamiǂnûn share a common historical tradition, language, culture, religion, ethnic identity, law and customs. The defendants are among those individuals comprising the ǃGamiǂnûn people who have direct, historic, cultural, and family ties with the Warmbad area of
Southern Namibia and the Orange River in the vicinity of the plaintiffs’ farms, where they and their forebears have lived and worked for many generations since time immemorial … The ǃGamiǂnûn people as a collective indigenous grouping in Namibia have historically possessed, occupied, and used a specific territory, including a ‘trek-path’ in the nature of a public servitude to access the Orange River, its islands and inner banks by traversing the plaintiffs’ farms prior to and after the plaintiffs’ farms were registered. The defendants and other ǃGamiǂnûn people have continued to, inter alia, utilise the natural resources along the inner banks and islands of the Orange River as their predecessors have done, in accordance with their customs, norms and laws since time immemorial.70
Basson’s goats drink from the Orange River near Girtis
PHOTO: L. LENGGENHAGER, 2020
The counterclaim is clear that: (1) the river-folk constitute a distinct community of Bondelswarts with specific connections to the Orange River (that is, a specific grouping of Bondelswarts); (2) they and their ancestors have continued to
One of the current authors (Moore) was brought on by the Legal Assistance Centre in late 2022 to submit expert witness reports about the history of the Orange River region and the precolonial, colonial and postcolonial history of the Bondelswarts. These reports are included among the court filings and discovery. We are not legal practitioners, but it is our professional opinion that – given the requirements to prove Vetustas for the Grootkraal case – the case of the river-folk has merit. The data presented throughout this book reveals that despite losing most of their lands by legal fiat during the German and South African colonial eras, the Bondelswarts/river-folk by the Orange River maintained a connection to their ancestral grounds. They continued to combine subsistence stock-keeping with wage labour for White farmers on both sides of the river, or even at Tantalite Valley mine. During the apartheid years of the Odendaal Plan, the Bondelswarts never allowed their communal lands to be fully seized by the government, and both traditional leaders and ordinary river-folk themselves maintained these transhumant and pastoral connections between formal communal lands and the Orange River. Apartheid-era legislation made crossing these commercial farms more difficult but not completely impossible. This relationship with their ancestral lands began beyond living memory of any individual person today or of previous known generations, and it continues up to the present day, despite the actions of capitalist farmers and ‘conservationists’.
The plaintiffs specifically deny that the defendants and/or the ǃGamiǂnûn traditional people have any legitimate claim to the plaintiffs’ farms or portions thereof, irrespective of the fact whether they at any stage in history had direct or indirect ties to the plaintiffs’ farms or not … The plaintiffs further deny that the defendants and/or the ǃGamiǂnûn traditional
people are in law entitled to use or trespass upon the plaintiffs’ farmland and/or in law have a legitimate claim to a historical ‘trek-path’ which traverses the plaintiffs’ farmland.71
Gilbertson – via his legal team – argued that the Bondelswarts had communal lands elsewhere, and that the ORKCA properties were protected by title deeds from the colonial era, which Basson did not have. Gilbertson denied the existence of and/or relevance of public rights of way or roads across his properties and challenged the Bassons to submit proof thereof to show that historical ‘trek-paths’ existed, that historical ties existed and that these belonged to the river-folk and the Bondelswarts community. Furthermore, the plea declared that if historical ties or trek-paths were indeed discovered, his team would declare (1) that the Bassons had not ‘kept to the parameters’ of such a servitude, and (2) that the Bassons had used this servitude to ‘commit various crimes such as the illegal hunting of game and/or poaching of wild animals belonging to the plaintiffs’.72
Despite denying the relevance of these roads, trek-paths and rights of way, Gilbertson’s legal team quickly filed an application with the Roads Board in Karasburg to have farm roads 217, 284 and 311 closed.73 These public roads run from the Orange River across Homsrivier, Sandfontein, Sandfontein West, Girtis, Norechab and other properties up towards Warmbad and the Bondelswarts communal areas. Given that there was an ongoing case concerning these rights of way, the legality of the application itself is unclear to us. In time, Gilbertson’s team admitted to filing the application to close the roads, but they continued to deny the relevance of the roads for the purpose of Vetustas as well as the existence of Bondelswarts ancestral connections to the area, full stop.74 When confronted by the LAC attorneys about applying to have the roads closed after the fact, Gilbertson’s legal team ‘had nothing really useful to say about it, except looking a bit sheepish’.75
Hartebeesmund is a 6,500-hectare property surrounded on all sides by properties belonging to Sean Gilbertson and Ian Craig’s companies, and it lies within the privately owned Orange River-Karoo Conservation Area. It belongs to the Namibian government and is occasionally traversed by river-folk. It appears highly improbable that the Ministry will part with its lands and sell it off to private investors now or in the future. Furthermore, ORKCA and its constituent members have admitted that they do not own the Orange River waters or have properties that actually extend to the waters themselves, nor have they yet acquired any properties on the South African side of the river. Despite believing that private land acquisition through deed of sale or custodianship agreements were key to transfrontier conservation, ORKCA lacks ownership or control of the key resource that it wishes to ‘rewild’, namely the Orange River itself.
In his most recent affidavit to the court, Willem Basson III hinted that it may not actually be the goal of these landowners to ‘own’ the Orange River. In the same way that Basson and the river-folk invoked Vetustas not to gain
The consortium of the three plaintiffs plan to take the river frontage from the general population use, in order to exercise exclusive rights over it for themselves and their guests from time to time. They do not want to see us nor our cattle in the area because it spoils their perception of ambience for themselves and their guests to see livestock or herders attending to them. Rather, they seek to claim as part of their exclusive playground, river frontages devoid of other people.79
…
The Norechab Sand & Tent Club adopted the motto ‘Space is the Ultimate Luxury’ as early as the year 2000 when Sean Gilbertson, Heye Daun and Finn
Aerial view of Gerrit Luttig’s old farmhouse on Pelladrift Farm. the house was constructed near to pre-existing river-folk kraals along the north bank of the Orange River, near to point N on the map in Figure 93. This location is almost impossible to access from the Namibian side of the river.
PHOTO COURTESY OF ROSITA SMEENK AND MAURITS MATERS, USED WITH PERMISSION
If the Orange River were offered to the conservationists, it is likely that they would buy it. However, they are not fighting the river-folk over who owns the Orange River but rather who has the right to be at and use the Orange River. Exclusive use for these wealthy conservationists is as good as ownership, and this is what the river-folk are fighting against. In this sense, the ancestral land claims advocated by the river-folk via Willem Basson – based on the principle of Vetustas – is a historically grounded justification for their presence on lands which colonialism and apartheid formally stripped from them.
Furthermore, because the court case is ultimately a Namibian one, it does not address the fact that the Bondelswarts were (and are) a transnational community with ancestral lands on both sides of the Orange River. The case is ongoing, and we do not wish to make firm predictions. Nevertheless, for the river-folk and for those who are seeking to further the project of ancestral land restitution in Namibia, this court case is promising as a step to revitalise the land question in Namibia.
One of the key tools in ‘rewilding’, for advocates from Namibia to Kenya to Holland to Montana, is wildlife corridors and conservation easements that allow game to move between ‘core’ conservation zones. In many ways, what the Bassons and other river-folk seek is not so different. By legitimising ancestral trek-paths through servitudes or other legal mechanisms, Vetustas claims would create what we call corridors for humans, allowing individuals to move between cores of human settlement in a safe manner to facilitate ancestral transhumance both for the purpose of agricultural production and to maintain cultural connections. Ancestral land claims, like ‘rewilding’ projects, seek to recreate and secure how things operated in the past.
The biggest difference between Vetustas and ‘rewilding’ (as presented by ORKCA) is that the latter can be distinctly anti-human, or at least anti-poor, in worldview. The data presented throughout this book has shown that to bring the landscapes of southern Namibia and the Orange River back to what they were like centuries before would ultimately necessitate a coexistence and
Article 16(1) grants the right to moveable and immoveable property. Article 23(2) allows the government to enact policies and programmes to redress the ‘imbalances in Namibian society’ that arose from colonialism and apartheid. The latter gave rise to numerous pieces of land reform legislation, many of which are covered in this chapter.
LAC BCF: Willem Basson III to Ministry of Lands and Resettlement – 31 July 2006.
For the extensive records of the Komitee van Privatisering and the Afrikaner organisation Cultura 2000, see NAN SWAS 267 File A.S.40/1/6/1/8 (vols. 1–3). The full archives of Cultura 2000 are held in Windhoek West at the Erfdeel Argief en Kultuursentrum.
Peter Koep took over from the founding chairman, Bryan O’Linn, in 1989.
For an account of the conference, see C.L. Pettersson, In the Footsteps of Mr. Anderson: Milestones in Swedish-Namibia Relations (Parkwood, Ulwazi, 2008), pp. 79–89.
Anton von Wietersheim, interview with Bernard C. Moore (Swakopmund, 26 October 2020). The NPP-435 and SWAPO also agreed to unite the militaries after independence and to make English an official language.
National Conference on Land Reform and the Land Question, ‘Consensus of the Conference’ (July 1991), p. 2. See also, E. Tjirera, ‘Namibia’s Intractable Land Question’, Current History, 122, no. 844 (2023), pp. 167–171.
EAKS JWF 15 File 7: Report of the People’s Land Conference (1994), pp. 16–17.
‘Agricultural (Commercial) Land Reform Act of 1995’, Government Gazette of the Republic of Namibia (no. 1040 of 3 March 1995), pp. 17–18.
See Ibid, sections 20–23.
Republic of Namibia, National Resettlement Policy (Windhoek, Ministry of Lands, Resettlement and Rehabilitation, 2001), pp. 3–5.
At this time, the Ministry of Lands and Resettlement took over the existing ad hoc willing-buyer willing-seller programme run by the Ministry of Agriculture from 1993–1999, which had purchased fifty three farms over this period, mostly for San group resettlement projects. For a survey of perspectives on the land question, see R.V. Nghitevelekwa, Securing Land Rights: Communal Land Reform in Namibia (Windhoek, University of Namibia Press, 2020).
From 1992–2015, the AALS gave Namibians 642 loans totalling more than NAD 750 million, which facilitated the purchase of more than three million hectares of farmland across the country.
Data from: R. Sherbourne, Guide to the Namibian Economy, 2017 (Windhoek, Institute for Public Policy Research, 2017), pp. 447–455. R. Sherbourne, Guide to the Namibian Economy, 2022 (Windhoek, IPPR, 2022), pp. 572–575.
Sherbourne, Guide to the Namibian Economy, 2017, pp. 447–453.
After a certain period of time, resettlement farmers would be permitted to construct a campsite, but lodges are forbidden. Timotheus Ekandjo, interview with Bernard C. Moore (Vergenoeg farm, Maltahöhe District, 1 December 2020).
‘Bernardus Swartbooi is Fired’, Namibian Sun (13 December 2016). The government claimed that it was a resignation, albeit under distinct pressure. ‘Swartbooi Resigned, not Fired – Kapofi’, New Era (14 December 2016).
S. Likela, ‘Top Government Officials Benefit from Resettlement Farms’, The Namibian (25 September 2018).
See H. Melber, ‘Colonialism, Land, Ethnicity, and Class: Namibia after the Second National Land Conference’, Africa Spectrum, 54, 1 (2019), pp. 73–86. See also, P. Kaapama, ‘The Ancestral Land Debate prior to and during Namibia’s Second National Land Conference: The Redistribution-Recognition Dilemma’, Anthropology Southern Africa, 42, no. 3 (2019), pp. 232–246.
Ministry of Land Reform, ‘Master List of Beneficiaries Resettled since 1990–2018’ – 11 October 2018. There were 189 individual beneficiaries of land reform in the ǁKaras Region spread over 97 resettlement farms, adding up to nearly 700,000 ha. The 189 beneficiaries for ǁKaras is quite small compared to the 5,782 beneficiaries across Namibia.
ǁKaras Regional Council, ‘Regional Consultations in Preparation for the Second Land Conference’ (19–20 July 2018), p. 23.
Ibid.
See Melber, ‘Namibia after the Second National Land Conference’, and P. Gilolmo Lobo, ‘In the Wake of the Namibian Second National Land Conference’, Agrarian South (29 January 2019).
Ministry of Land Reform, ‘Resolutions of the Second National Land Conference’ – 5 October 2018.
Republic of Namibia: Office of the President, ‘Post-Mortem and Review of the Resolutions of the Recently Concluded Second National Land Conference’ – 10 October 2018.
Ministry of Land Reform, ‘Resolutions of the Second National Land Conference’ – 5 October 2018.
LAC BCF: Lesle Jansen, notes from consultation with Willem Basson – 20 July 2010.
LAC M/B: Natasha Bassingthwaighte to Lesle Jansen ‘Bondelswarts Community: Spoliation Order’ – 12 August 2010.
RoHC File I1295/13: Attorneys Lentin, Bothma and Van Den Heever to Willem Basson et al. ‘Eviction from Farm Girtis no. 109, Karasburg District’ – 23 June 2011.
Peter Watson (LAC), interview with Bernard C. Moore (Windhoek, 30 July 2022).
RoHC File I1295/13: Marwilben Farming cc, ‘Particulars of Claim’ – 2 May 2013.
Willem Basson III, interview with Bernard C. Moore and Luregn Lenggenhager (Karasburg, 11 November 2021).
RoHC File I1295/13: Legal Assistance Centre ‘Request for Particulars in Terms of Rule 21’ – 30 May 2013.
RoHC File I1295/13: Lentin, Bothma and Van Den Heever ‘Further Particulars’ – 28 May 2014.
RoHC File I1295/13: Defendants’ Plea – 17 June 2014.
RoHC File I1295/13: Defendants’ Conditional Claim in Reconvention – June 2014.
RoHC File I1295/13: Plaintiff’s Plea to Conditional Counterclaim – 7 July 2014.
RoHC File I1295/13: Pre-Trial Report – 11 March 2015.
Peter Watson (LAC), personal communication with Bernard C. Moore (26 April 2023).
C. Rickard, ‘A Borderline Case that Never Was’, Legal Brief (21 October 2015).
LAC M/B: Geo Pollution Technologies (Pty) Ltd, ‘Farm Girtis 109, Division V, Border Assessment’ – March 2017.
NAN LAN 710 File 2137/2: Hoofamptenaar van Lande, Windhoek to R.P.C. Ludick, KumKum ‘Oewer-Regte Oranjerivier’ – 27 February 1949.
NAN WAT 91 File WW.77/4: Surveyor-General, Windhoek to Secretary for SWA ‘Vioolsdrift Irrigation Settlement, Orange River: Report of Inspection’ – 11 December 1934.
‘Recognition of the Independence of Namibia Act, 1990’, Government Gazette of the Republic of South Africa (Vol. 297, No. 12372 of 20 March 1990).
For more on how the border has been debated over the years, consult W. Rutishauser, ‘The Orange River Boundary and the Ongoing Dispute between Namibia and South Africa’, in L. Lenggenhager et al. (eds.) The Lower !Garib/Orange River: Pasts and Presents of a Southern African Border Region (Bielefeld, Transcript Verlag, 2023), pp. 211–224.
See AHG/Res. 16(I): Assembly of Heads of State and Government, Meeting in Cairo, 17–21 July 1964.
RoHC File HC-MD-CIV-ACT-CON-2020/02424: Plaintiffs’ Particulars of Claim – 25 June 2020.
RoHC File HC-MD-CIV-ACT-CON-2020/02424: Sean Thomas Gilbertson: Discovery Affidavit (first schedule) – 25 June 2021. Based on the discovery appendices, the photos were taken between March and August 2020.
As mentioned previously, KumKum and Pelladrift are owned by Pelladrift (Edms) Bpk, which was primarily financed by Ian Craig. To maintain status as a Namibian company eligible for land ownership, Pete Morkel was for many years listed as a director and majority shareholder, to be replaced with lawyer Peter F. Koep c. 2020. There was no extraordinary meeting by the company filed to allow Morkel to stand legally for it, and the timeline suggests that Morkel was no longer affiliated at all with Pelladrift (Edms) Bpk when he filed the lawsuit.
RoHC File HC-MD-CIV-ACT-CON-2021/01637: Peter van der Byl Morkel, Particulars of Claim – 23 April 2021.
RoHC File HC-MD-CIV-ACT-CON-2020/02424: R. Linde (Theunissen, Louw and Partners), ‘Rule 41(1) Application: Founding Affidavit’ – 14 April 2022.
RoHC File HC-MD-CIV-ACT-CON-2020/02424: Founding Affidavit, Willem Basson – 26 November 2020.
RoHC File HC-MD-CIV-ACT-CON-2020/02424: Plaintiff’s Plea to Defendants’ Counterclaim – 27 July 2021.
Government Notice no. 59, Government Gazette of the Republic of Namibia (no. 6858 of 15 March 2019).
Republic of Namibia, Final Report of the Presidential Commission of Inquiry into Claims of Ancestral Land Rights and Restitution (Windhoek, 24 July 2020), pp. XXVIII–XXXI.
Ibid, p. XXVIII.
Ibid, p. 240. This would also involve the question of generational farmworkers, an often-ignored group.
Ibid, pp. 133–134. Individual submissions by Bondelswart members to the commission (likely via SMS) contain a similar specificity about land parcels that are claimed by the traditional authority, giving credence to the belief that the Bondelswarts view land restitution as more central to post-apartheid reconciliation. See ibid., appendix L.
For some context, see D.P. Zongwe, ‘Researching Namibian Law and the Namibian Legal System’, GlobaLex (December 2020).
[‘Heeft een toestand zoo lang geduurd, dat zijn aanvang ligt buiten het bereik van’s menschen geheugen, zoo word zijn wettige oorsprong vermoed en het bewijs daarvan ontbeerlijk … Het menschengeheugen bepaalt zich echter niet bloot tot eigen waarneming, maar strekt zich ook uit tot mededeelingen den nog levenden door hunne voorgangers gedaan’]. J.E. Goudsmit, Pandecten-Systeem (Leiden, 1866), pp. 195–196.
L.T.C. Harms and J.H. Hugo, Amler’s Precedents of Pleadings, Third Edition (Durban, Butterworths, 1989), p. 300. See also J.M. Otto, ‘Vetustas, Onheuglike Tye en die Witpad by Langebaan’, Fundamina, 19, 1 (2013), pp. 48–60.
C. Möller, ‘Time as an Argument in Roman Water Law’, Water History, 15 (2023), pp. 67–80. Vetustas rights need not result in a praedial servitude akin to Way of Necessity (via ex necessitate), on the grounds that the right is not held against one property by other – such as a landlocked private property against another with road access – but rather is tied to continuity of community use. See, C.G. van der Merwe, ‘Louisiana Right to Forced Passage Compared with the South African Way of Necessity’, Tulane Law Review 73, 4 (1999), pp. 1363–1414.
Community of Grootkraal v. Kobot Business Trust (1219/2017) [2018] ZASCA 158 (28 November 2018).
Ibid, para. 4.
Ibid, para. 38.
For an analysis of the case, see P. de Vos, ‘Little-Used Legal Doctrine Secures Informal Land Rights of the Grootkraal Community’, Constitutionally Speaking (29 November 2018).
Tsumib v Government of the Republic of Namibia (A 206/2015) [2019] NAHCMD 312 (28 August 2019). The applicants were also represented by the Legal Assistance Centre. For more information, see W. Odendaal, ‘Beggars on our own Land …’ : Tsumib v. Government of the Republic of Namibia and its Implications for Ancestral Land Claims in Namibia (Basel, Basler Afrika Bibliographien, 2024).
See ‘The doctrine of Vetustas – Communities may secure formal legal rights to use and occupy land owned by somebody else’, Fasken Institute (1 April 2019).
RoHC File HC-MD-CIV-ACT-CON-2020/02424: Founding Affidavit, Willem Basson – 26 November 2020.
RoHC File HC-MD-CIV-ACT-CON-2020/02424: First to Fourth Defendants’ Counterclaim – 7 May 2021 (para. 4–9).
RoHC File HC-MD-CIV-ACT-CON-2020/02424: Plaintiff’s Plea to Defendant’s Counterclaim – 27 July 2021.
Ibid, para. 3.5.3. This claim that the Bassons secretly use their liminal status to engage in crime is often made by Pete Morkel and Adriaan Mulder; see E. Hattingh, ‘Rivier van Wettelosheid’, Republikein (27 October 2021). In reality, most if not all of these irregularities are committed by individuals who cross over from Witbank on the South African side. William Rooi, interview with Bernard C. Moore and Luregn Lenggenhager (Girtis farm, 11 November 2021).
‘Application that a Portion of Farm Road 217 and Farm Roads 284 and 311 be Closed: District of Karasburg’, Government Gazette of the Republic of Namibia (no. 7841 of 1 July 2022).
RoHC File HC-MD-CIV-ACT-CON-2020/02424: Sean T. Gilbertson: Plaintiff’s Witness Statement – 21 February 2023.
Peter Watson (LAC), personal communication with Bernard C. Moore (27 April 2023).
RoHC File HC-MD-CIV-ACT-CON-2020/02424: Sean T. Gilbertson: Plaintiff’s Witness Statement – 21 February 2023.
NAN LAN 338 File 714/2: Inspeksie-Rapport: Hartebeesmund and Eselruh – 1 January 1928.
William Rooi, interview with Bernard C. Moore and Luregn Lenggenhager (Girtis Farm, 11 November 2021); Monika Basson, interview with Bernard C. Moore and Luregn Lenggenhager (Warmbad, 9 November 2021).
RoHc File HC-MD-CIV-ACT-CON-2020/02424: Willem Basson, Witness Statement – 8 December 2022.