CASE NO.: (P) A 282//2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

CONSTANCIA MURUKO 1^st Applicant

WILFRED KAZEURUA 2^nd Applicant

and

GODFRIEDINE KAMBATUKU 1^st Respondent

WILHELMINE KAUNE HENGUA 2^nd Respondent

KAMUHANGA S HOVEKA 3^rd Respondent

ROSEN KAUTA KAUNE 4^th Respondent

UAUNDJA MBAUKUA 5^th Respondent

TJIRITJA MERORO 6^th Respondent

KAURE TITEL KAUNE 7^th Respondent

KAHUI KANDJOU 8^th Respondent

KANGUU KANANGANDA 9^th Respondent

KATJAZAPI KAUNE 10^th Respondent

KAZASU HOVEKA 11^th Respondent

VATA KAUNE 12^th Respondent

KANDORE KANDJOU 13^th Respondent

KAIHUUE KATJIOVA 14^th Respondent

KUVERI KANDJOU 15^th Respondent

KAANA KAMBATUKU 16^th Respondent

JOONI MUNJONE 17^th Respondent

JOGBETH KAMUHANGA 18^th Respondent

CORAM: PARKER, J

Heard on: 2006 November 28

Delivered on: 2006 December 6

_________________________________________________________

JUDGMENT:

PARKER, J.:

[1] In this application brought on notice of motion, the applicants seek an order in the following terms:

1. That the Court condones the applicants’ non-compliance with the Rules of this Court (“the Rules”) and the time periods prescribed therein in so far as these have not been complied with, and direct that this matter be heard as one of urgency as envisaged in Rule 6 (12) of the Rules.

2. That a rule nisi be issued calling upon the respondents to show cause on a date to be determined by the Honourable Court why the following order should not be made:

1. ordering first, second, third, fourth, seventh and eighth respondents to restore second applicant’s possession of the unlawfully dispossessed 130 head of cattle (including any offspring);

2. ordering the respondents to restore first applicant’s possession of the following items unlawfully dispossessed:

1. two plastic dams;

2. 176 sheep (including any offspring);

3. 113 goats (including any offspring);

4. water pipes;

5. the house situated in the Okoukambe Village;

6. 120 cattle (including any offspring);

7. the zinc sheets;

8. five black cooking pots;

9. a feeding trough;

10. two water troughs;

11. three spades;

12. 100 metres of black plastic piping;

13. one water tap;

14. the 1972 Ford F pick-up motor vehicle;

15. the trailer used for the conveyance of livestock;

16. the axle belonging to the aforementioned trailer.

3. ordering respondents to pay the costs of this application on a scale between attorney and client.

3. That the order in terms of subparagraphs 2.1 and 2.2 hereof shall serve as an interim interdict with immediate effect pending the finalisation of this application.

4. That the Court grants the applicants such further or alternative relief as the Court may deem fit.

[2] The application, filed on 12 October 2006, was brought on urgent basis but it was heard in due course on 29 November 2006, after it had been postponed twice, on 13 November and 20 November 2006. The respondents had the opportunity to file answering papers before the hearing.

[3] Before I deal with the main application, I wish to treat the preliminary applications that were brought by the applicants so as to get them out of the way at this stage:

1. The r. 30 application: The respondents did not oppose the application; they, indeed, tendered costs for the applicants’ filing of the r. 30 application.

2. Wasted costs, 13 November 2006 postponement: I find that the postponement was at the instance of the respondents.

3. Wasted costs, 20 November 2006 postponement: It is common cause between the parties that the 20 November postponement was not at the instance of any party.

4. Application to strike out parts of the 2^nd respondent’s answering affidavit: It is important to note that the respondents did not file any opposing papers. Counsel for the respondents was allowed to argue their opposition from the Bar.

1. With the greatest respect, I fail to see on what basis the applicants contend that subparagraph 3.7 and a certain portion of paragraph 32 introduce inadmissible and irrelevant opinion evidence. From the papers filed of record, I find that the deponent of the answering affidavit, Wilhelmine Kaune Hengua, the 2^nd Respondent, is an adult sister of the late Erwin Kaune (whose estate is the subject of these proceedings) and they are of Otjiherero descent. I accept that she is stating in subparagraph 3.7 and in the portion of paragraph 32 what, according to her, are matters of her personal knowledge, and she swears that what she states is true: she does not put herself out as an expert. I am not satisfied that the applicants will be prejudiced within the meaning of r. 6 (15) of the Rules of the Court if the application to strike out is not granted. If during the hearing of the main application (the spoliation application) in due course subparagraph 3.7 and the portion of paragraph 32 are found to be not capable of assisting the Court in making a determination, the Court will not take cognizance of them. That being the case, the application to strike out subparagraph 3.7 and the portion of paragraph 32 cannot succeed.

2. Mr. Obbes’s submission is that the confirmatory affidavits of the 5^th, 6^th, 7^th, 8^th, 10^th, 11^th, 12^th, 13^th, 14^th, 15^th and 18^th Respondents (the 11 affidavits) predate the 2^nd Respondent’s answering affidavit (settled on 9 November 2006), which the 11 affidavits (settled on 8 November 2006) sought to confirm. Consequently, he submitted, the 11 affidavits are irrelevant and a nullity, and so they should be struck out. Mr. Corbett concedes that the 11 affidavits do predate the answering affidavits, but he prayed from the Bar that the Court should condone the irregularity and accept the 11 affidavits. It is Mr. Obbes’s contention that a proper application ought to have been made in the circumstances. I agree with Mr. Obbes in that regard. But he does not persuade me in the least as to what prejudice the applicants would suffer if the application to strike out was not granted. Each of the 11 affidavits consists of two paragraphs – and they are all substantially identical in material respects: the first paragraph deals with the details of the person of the deponent, and the second the fact that the deponent confirms the answering affidavit of the 2^nd Respondent. In a rearguard action, Mr Obbes argued that if the 11 affidavits had been filed properly the Applicants would have responded in greater detail in their replying affidavit, and the applicants’ counsel’s heads of argument would have been formulated differently. The argument, with the greatest deference, is not only weak but also not well founded. None of the 11 affidavits deals with any substantial matter, and there is nothing – nothing at all – that adds anything – even a modicum – to the facts deposed to by the 2^nd Respondent in her answering affidavit. For the above reasons, the application to strike out the 11 affidavits must also fail.

[4] I pass to deal with the main application. Mr. Corbett, who appeared for the respondents, argued that the matter was not urgent within the meaning of the Rules of Court because the urgency was self-created. Mr. Obbes, for the applicants submitted contrariwise. In my view, it is in the interests of all parties to the application that it be resolved without further delay. In the circumstances and having regard to the papers filed of record and all the conspectus of the case, I condone the applicants’ non-compliance with the Rules of Court.

[5] Mr. Obbes strongly pressed on me that the application is for a mandament van spolie and, therefore, it must be determined solely on that basis. That is not in doubt, and I understand Mr. Corbett not to contest that point.

[6]`The surrounding circumstances of the present application have their genesis in the application launched in this Court on 27 October 2005 (the October 2005 application). In that application the parties were Wilhelmine Kaune Hengua: the 1^st Applicant; Jogbgeth Kaune Kamuhanga: the 2^nd Applicant; Godfriedine Kaune Kambatuku: the 3^rd Applicant; and Antonia Kazongominja: the 4^th Applicant. The opposing party consisted of Constancia Muruko: the 1^st Respondent; Headman Karumendu for the Aminius Traditional Authority: the 2^nd Respondent; and the Magistrate for the District of Gobabis: the 3^rd Respondent. The 2^nd and 3^rd Respondents were joined as parties nomine oficii.

[7] The October 2005 application was heard by my brother Mtambanengwe, AJ on 21 August 2006. Both the relevant papers of the October 2005 application and the judgement and orders by the learned Judge (the Mtambanengwe Orders) form a part of the papers filed of record in the present application. It is, therefore, extremely vital for the determination of the present application that I set out in whole the Mtambanengwe Orders:

1. The appointment of the first respondent by the third respondent purportedly in terms of s 2 (a) of Government Notice 70 of 1994 is hereby declared null and void.

2. Consequently the purported division of the deceased’s estate by first respondent is se aside.

3. The estate of the late Erwin Kaune shall devolve and be administered in terms of the Otjiherero culture and shall be supervised by the second respondent;

4. First respondent is ordered to pay the costs of this application.

[8] It must be mentioned that the 2^nd Applicant in the present application was not a party to the 25 October application. In the present case he has filed a confirmatory affidavit to the founding affidavit by the 1^st Applicant, which means he makes common cause with the 1^st Applicant on the evidence that concerns him.

[9] Following upon the granting of the Mtambanengwe Orders, the respondents in the present application – working in small groups – collected what, in their view, was the property that formed part of the estate of the late Erwin Kaune, who was the husband of the 1^st Applicant (the 1^st Respondent in the October 2005 application). And according to them, what they did was in line with “Otjiherero culture (i.e. Otjiherero customary law)”. Indeed, Mr. Corbett submitted that the respondents’ action was in pursuance of the order of this Court (i.e. the Mtambanengwe Orders). The respondents state that they took possession of the said property in the period 15-17 September 2006. It is the applicants’ contention that the property was taken possession of in the period 11-17 September 2006. What is significant for the purposes of the determination of the present application is that, from the papers, I find that the taking of possession of the said property by the Respondents was completed on Sunday, 17 September 2006.

[10] I must say that I agree with Mr. Obbes that in this application, the Court is not asked to make an order as to the extent of the estate. I have, therefore, advisedly used the term “property” in this judgment, and it must be understood to mean “property” referred to in the judgment by Mtambanengwe, AJ and the ensuing Mtambanengwe Orders.

[11] It is not in dispute that the 1^st Applicant, who was the 1^st Respondent in the October 2005 application in which the Mtambanengwe Orders were granted, noted an appeal on Tuesday, 19 September 2006, against the judgment and the resultant Mtambanengwe Orders. That being the case, I hold that when the appeal was noted, the respondents had already taken possession of the property in question. Indeed, it is the taking of possession of the property that has resulted in the present application for a spoliation order.

[12] The legal principles applicable to spoliation proceedings are trite and have time and time again been stated by the Courts.¹ The central and fundamental principle of the remedy is simply that no person is allowed to take the law into his or her own hands and thereby cause a breach of peace. Thus, the remedy is aimed at every unlawful and involuntary loss of possession by a possessor. Consequently, its single object is the restoration of the status quo ante as a prelude to any inquiry into the merits of the respective claims of the parties to the thing in question.² The justice or injustice of the applicants’ possession is, therefore, irrelevant.³

[13] Thus, according to the authorities,⁴ an applicant for a spoliation order must first and foremost establish that he or she was in “peaceful and undisturbed” possession of the thing in question at the time he or she was deprived of possession. As Flemming, J said in Mbangi and Others, “The authorities show a certain consistency in requiring not merely ‘possession’ as a prerequisite for granting of a spoliation order, but ‘peaceful and undisturbed’ possession”.⁵ Consequently, if I find that at the time the respondent deprived the applicants of possession of the property in question the applicants were not in peaceful and undisturbed possession of the property, the application must fail.

[14] The single question I must first of all answer is, therefore, whether the applicants were in “peaceful and undisturbed” possession of the property at the time the respondents deprived them of possession thereof. As Mr. Corbett put it in his submission, the question is whether the applicants were in peaceful and undisturbed control of the property before they were disturbed in their possession thereof by the respondents. For this reason, it seems to me that this application, despite the fact that the papers filed are voluminous and I have been referred to quite a number of authorities, falls within an extremely short and simple compass.

[15] In Greef, Vivier, J stated that the words “peaceful and undisturbed” probably mean “sufficiently stable or durable possession for the law to take cognizance of it.”⁶ In Jenkins v Jackson, it was said that the words “peaceful and quietly” in relation to enjoyment of possession mean without interference – without interruption of possession.⁷ Relying on the foregoing definitions, I come to the conclusion that “peaceful and undisturbed” possession means without interference with, or interruption of, possession. The result is that the applicant for a spoliation order requires that the possession he or she wishes to be protected must have become ensconced⁸ for the law to take cognizance of it.⁹

[16] Having considered the language of the Mtambanengwe Orders as a whole, and having considered the entire contextual framework of the judgment and the objects of the Orders, I have come to the inescapable conclusion that the meaning of the Orders is clear and unambiguous.¹⁰ Having so concluded, it is my view that the irrefragable legal reality in this case is that the applicants could not have been in “peaceful and undisturbed” possession after the granting of the Mtambanengwe Orders, for their possession of the property was disturbed by the lawful order of this Court, i.e. by the Mtambanengwe Orders. Consequently, the applicants’ possession of the property did not continue without disturbance up to the date on which the appeal was noted. That being the case, I hold that the applicants were not in “peaceful and undisturbed” possession of the property at the time the respondents deprived them of possession thereof for the law to take cognizance of it.

[17] In coming to this conclusion I have not lost sight of Mr. Obbes’s submission that in the respondents’ counsel’s heads of argument, the respondents appear to concede that at the time they took possession of the property, the applicants were in peaceful and undisturbed possession of the property. Paragraph 9 of Counsel’s heads of argument reads:

It is conceded that the applicants were indeed in peaceful and undisturbed control of the property (albeit without lawful authority) prior to the respondents taking possession thereof during the period 15 to 17 September 2006.

[18] I do not think paragraph 9 is a clear, unambiguous and unequivocal concession from which the applicants can derive a benefit, if regard is had to the parenthetical words in the said paragraph, namely, “albeit without lawful authority”. But, more important, in subparagraph 3.3 of the same heads of argument, counsel submits that one of the issues to be determined by the Court, as aforesaid, is whether the applicants were in peaceful and undisturbed control of the property before their possession of it was disturbed by the respondents. Thus, if paragraph 9 is juxtaposed with subparagraph 3.3 and the two passages are read contextually, the inescapable result is that as far as the respondent’s are concerned, the Court must determine the issue of whether the applicants were in peaceful and undisturbed possession of the property when the respondents took possession of it. The upshot is that the so-called concession on the issue that may be gleaned from paragraph 9, therefore, falls away. In sum, in my judgment, if paragraph 9 is read with subparagraph 3.3 – and it must be read with it – there is no concession on the question of the critical issue of whether the applicants were in “peaceful and undisturbed” possession of the property at the time the respondents took possession thereof.

[19] For all the above, I have come to the inexorable conclusion that the applicants are not entitled to the relief sought.

[20] In the result, the application for a spoliation order is dismissed with costs. I also make the following further orders as to costs:

1. The respondents must pay costs for the applicants’ filing of the r. 30 application.

2. The respondents must pay wasted costs for the 13 November 2006 postponement.

3. There shall be no order as to costs for the 20 November 2006 postponement.

4. There shall be no order as to costs in respect of the application to strike out.

_________________________

Parker, J

ON BEHALF OF THE APPLICANTS: Adv. D. Obbes

Instructed by: Metcalfe Legal

Practitioners

ON BEHALF OF THE RESPONDENT: Adv. A.W. Corbett

Instructed by: Dr. Weder, Kauta

& Hoveka Inc.