REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
RULING
Case no: HC-MD-CIV-MOT-REV-2025/00204
In the matter between:
PRINCESS SEHWE MAIBA
(MASUBIA ROYAL COUNCIL) 1ST APPLICANT
FREDRICK NALISA NALISA 2ND APPLICANT
and
THE MINISTER OF URBAN AND RURAL
DEVELOPMENT 1ST RESPONDENT
THE MASUBIYA TRADITIONAL AUTHORITY 2ND RESPONDENT
GILBERT MUHONGO MUTWA 3RD RESPONDENT
JAMES KABATI MAIBA 4TH RESPONDENT
TREVOR MAIBA 5TH RESPONDENT
COUNCIL OF TRADITIONAL LEADERS 6TH RESPONDENT
THE GOVERNOR OF ZAMBEZI REGION 7TH RESPONDENT
BUKALO ROLAY HOUSE 8TH RESPONDENT
NGOMA ROYAL HOUSE 9TH RESPONDENT
KASIKA ROYAL HOUSE 10TH RESPONDENT
THE PRESIDENT OF THE REPUBLIC OF
NAMIBIA 11TH RESPONDENT
THE ATTORNEY-GENERAL OF NAMIBIA 12TH RESPONDENT
Neutral citation: Maiba v The Minister of Urban and Rural Development
(HC-MD-CIV-MOT-REV-2025/00204) [2025] NAHCMD
272 (22 May 2025)
Coram: SCHIMMING-CHASE J
Heard: 20 May 2025
Delivered: 22 May 2025
Flynote: Practice — Applications and motions — Urgent applications —A party is required to explicitly set forth in the founding papers, the reasons why a matter is urgent and why substantial redress cannot be obtained in due course — No urgency where urgency is self created — Fact that undertakings were sought but not timeously or favourably responded to is not an excuse to bring an application at the last minute.
Summary: The applicants launched a review application in the normal course on 2 May 2025, to set aside a decision made by the first respondent in terms of s 5(2) of the Traditional Authorities Act 25 of 2000, to approve the designation of the third respondent as Chief of the second respondent. The applicants were informed of the decision on 7 April 2025. The first respondent informed the parties that the third respondent’s inauguration should be taking place at the end of May 2025 in terms of s 5(7) of the Traditional Authorities Act. The applicants alleged in the review application that the decision of the first respondent was unlawful, unreasonable, irrational, and contrary to the provisions of the Traditional Authorities Act. At the time of the institution of the review application, the applicants sought undertakings from the first respondent that the coronation of the third respondent as chief would not take place pending the finalisation of the review application. The first respondent initially indicated that further instructions would be provided on 7 May 2025. By 13 May 2025, there was still no response, and after finding out that the inauguration would proceed on 23 May 2025 on 13 May 2025, the applicants sought an undertaking again on 14 May 2025, which was not granted. The applicants then launched an urgent application on less than one day’s notice to the respondents for an order staying the coronation pending finalisation of the review application.
Held that, condoning non-compliance with the court rules is discretionary and should only occur when applications are genuinely urgent. In the present case, urgency was self-created.
Held further that, the applicants did not comply with the provisions of rule 73 and failed to set out explicitly the circumstances that rendered the matter urgent, and reasons why substantial redress could not be obtained in due course. The applicants merely paid lip service to the rule.
Held further that, the applicants were aware as of 7 April 2025 what the decision was, and approximately when the coronation would take place, at the end of May 2025. They had ample opportunity to seek the interim relief on truncated dates together with the main relief, with a lesser degree of urgency than the applicants created for themselves.
Held further that, the fact that an undertaking not to continue with an action that is sought to be reviewed and set aside was not provided to the applicants did not mean that the applicants could sit idly by and wait until the last possible minute to launch urgent proceedings on prejudicially short timelines.
Held futher that, the application is struck from the roll for lack of urgency.
____________________________________________________________
ORDER
____________________________________________________________
The application is struck from the roll for lack of urgency.
The applicants are ordered to pay the costs of the first and third respondents, such costs to include the costs of one instructing and one instructed counsel, where employed.
The urgent application is considered finalised and removed from the roll.
____________________________________________________________
RULING
____________________________________________________________
SCHIMMING-CHASE J:
(a)The principles at play in the determination of whether an application is urgent in terms of rule 73 are trite:
‘… an applicant who seeks to invoke the urgency procedure essentially asks the court to allow him or her to “jump the queue”, as it were, and have his or her case heard before others that were launched earlier. The reasons why the court is requested to allow the jumping of the queue must be motivated, and others whose cases have been overtaken by the applicant’s case must be able to attest that, from the papers filed, the fast-tracking of the case was indeed called for. To do otherwise would bring the administration of justice into disrepute.’1
(b)The following general principles can be distilled from oft quoted Namibian jurisprudence on urgent applications:
An applicant is required to set out explicitly in the founding papers the averred circumstances that render the matter urgent, and the reasons why it is claimed that he or she could not be afforded substantial redress at a hearing in due course. Failure to provide reasons may be fatal to the application, and 'mere lip service' is not enough.2
The court's power to dispense with the forms and service provided for in the rules of court in urgent applications is a discretionary one that must be judicially exercised.
One of the circumstances under which a court in the exercise of its judicial discretion may decline to condone non-compliance with the prescribed forms and service, notwithstanding the apparent urgency of the application, is when the applicant, who is seeking the indulgence, has created the urgency either mala fides or through culpable remissness or inaction.
Each case is to be decided upon its own facts.
For purposes of deciding upon the issue of urgency, the court must assume that the applicant's case is a good one and the applicant has a right to the relief it seeks.
When an application is brought on a basis of urgency, institution of the proceedings should take place as soon as reasonably possible after the cause thereof has arisen. An applicant should not delay in approaching the court and wait until a certain event is imminent and then rely on urgency to have his/or her matter heard.
Whilst rule 73 allows a deviation from those prescribed procedures in urgent applications, the requirement that the deviated procedure should be 'as far as practicable' in accordance with the rules constitutes a continuous demand on the court, parties and practitioners to give effect to the objective of procedural fairness when determining the procedure to be followed in such instances.
When an applicant believes that his matter is one of urgency he may decide himself what times to allow affected parties for entering appearance to defend and for answering affidavits, and the time given for filing of papers in the applicant’s notice of motion should be commensurate which the degree of urgency contended for.
The benefits of procedural fairness in urgent applications are not only for an applicant to enjoy, but should also extend and be afforded to a respondent.
The fact that irreparable damage may be suffered is not enough to make out a case of urgency. Although it may be a ground for an interdict, it does not make the application urgent.3
(c)The application before the court is lodged by the applicants for hearing on an urgent basis. It involves the passing of the baton of the Chieftainship of the second respondent. The applicants4 seek an interim order interdicting and restraining the second respondent (the Masubia Traditional Authority) from proceeding with the inauguration of the third respondent (Gilbert Mutwa) on 23 May 2025 and further implementing the decision taken by the first respondent (the Minister of Urban and Rural Development) on 7 April 2025 to designate the third respondent as Chief of the second respondant. The applicants also seek an order interdicting and restraining the third respondent from being coronated ‘… either on 23 May 2025 or on any date as Chief of the second respondent’.
(d)For proper background and context, the applicants instituted proceedings in the normal course against the same respondents on 2 May 2025 under the same case number (‘the main application’) for the review and setting aside of the decision of the first respondent made on 7 April 2025 to approve the designation of the third respondent as Chief of the second respondent in terms of s 5(2) of the Traditional Authorities Act 25 of 2000, on the basis that the decision was irrational, unlawful, unreasonable, and in violation of the Masubia traditions and customs and contrary to the terms and provisions of the Traditional Authorities Act 25 of 2000.
(e)Interestingly and at the end of the notice of motion, the following was stated: ‘Whether or not a notice of intention to oppose is given, the application will be moved on the 20th of June 2025 at 09:00 AM.’
(f)The third respondent opposed the main application on 7 May 2025, and the first and twelfth respondents opposed the main application on 15 May 2025.5 The urgent application was launched the next day (on the same case number) on Friday, 16 May 2025.6
(g)The coronation of the third respondent is to take place on 23 May 2025, and it is this occasion that the applicants seek to temporarily interdict on an urgent basis, pending finalisation of the main application.
(h)As to the degree of urgency and the timelines set for opposition, the urgent application was set down for hearing on 20 May 2025 at 09h00.7 The respondents opposing were directed to file answering affidavits by Sunday, 18 May 2025 at 12h00. The applicant would then deliver replying papers by Monday 19 May 2025 at 17h00, and the hearing would take place on Monday at 09h00.
(i)The above timelines make it clear that the application was, according to the applicants at least, extremely urgent. The first respondent in particular was served via the Government Attorney on Friday, 16 May at 12h45, and an answering affidavit had to be filed by Sunday, 18 May 2025 at 12h00. Not a single day was granted to enable the first respondent to consider, consult on and meaningfully oppose the application. This much is stated by the first respondent in an answering affidavit, inclusive of annexures, delivered on Monday, 19 May 2025 at 15h00. The first respondent stated, inter alia that the short time frame provided prejudiced the respondent and he, therefore, made himself available for the presentation of oral evidence in addition to the answering affidavit. The first respondent takes the issue of urgency in limine, alleging that the applicants’ urgency is self-created.
(j)The third respondent also delivered an answering affidavit and notice in terms of rule 66(1)(c) of the rules of court on 19 May 2025 at 15h40, raising an absence of urgency as an exception in motion.
(k)The letter of 7 April 2025 from the first respondent transmitted to the second respondent is key to the determination of urgency. It is also the document that set in motion the main application that was launched on 2 May 2025. The salient portions of the letter are quoted, as follows:
‘SUBJECT: APPLICATION TO DESIGNATE A CHIEF OF THE MASUBlA TRADITIONAL AUTHORITY
I am pleased to inform you that as per the provision of Section 5(2) of the Traditional Authorities Act, 2000 (Act No. 25 of 2000), approval has been granted to your application to designate Mr. Gilbert Muhongo Mutwa as Chief of the Masubia Traditional Authority to sllcceed late Chief Kisco Maiba Liswani IlI after a long deliberation.
Furthermore, in terns of Section 5(1) of the Traditional Authorities Act, 2000 your Traditional Authority is required to do the official designation of the Chief on the date, time and place to be determined by your traditional community before the end of May 2025. You are also required to give, in writing prior notification to the Minister of the date, time and place of the designation to enable him or his representative to attend and witness the official inauguration of the Chief.’ (emphasis supplied)
(l)It is clear from the aforementioned letter that the applicants, on their own version, were aware of the decision giving rise to the review application on 7 April 2025. They were also aware, based on the contents of this letter, that the official designation of the third respondent would take place before the end of May 2025.
(m)The applicants launched the review application approximately one month later on 2 May 2025, which was shared with the relevant respondents on the same date via email. The applicants sought an undertaking from the respondents that the decision of the first respondent would not be given effect to pending the finalisation of the main proceedings. The respondents were served with the papers in the main application in the interim, on 7 and 13 May 2025. On the same date (7 May 2025), the first respondent’s legal practitioners advised the applicants’ legal practitioners that they were taking instructions from the first respondent. The third respondent’s legal practitioners responded on 6 May 2025, advising, inter alia, that the review application was abusive and that the request for an undertaking was a ploy to create urgency. The second respondent simply acknowledged receipt.
(n)On 13 May 2025, the applicants found out that the second respondent was going ahead with the coronation of the first respondent on 23 May 2025; that the media had been informed and that the first respondent had been formally invited to the occasion. The applicants then immediately instructed their legal practitioners to ‘…seek confirmation of the undertaking from the first respondent that was sought on 2 May 2025’. The legal practitioners were also instructed to confirm whether the information about the coronation was authentic.
(o)On 13 May 2025, the applicants' legal practitioners dispatched a letter to the first respondent seeking his undertaking in writing. On 15 May 2025, the first respondent provided ‘…instructions not to provide an undertaking to stop the inauguration pending the outcome of your client’s review application. This means that the inauguration will go ahead as indicated by Masubiya Traditional Authority’.
(p)The applicants lament that the inauguration procedure of the third respondent triggers certain customary practices, described in the founding affidavit as follows:
‘31. The letter by the second respondent that came to our attention on 13 May 2025 also triggers certain customary practices which I submit further renders this matter urgent:
31.1 In keeping with the customs of the Masubia people, once a candidate is nominated and undergoes the traditional rituals, the nomination is considered irreversible except in the event of death, in essence it is impossible to reverse an inauguration or coronation under our culture and customs, hence the urgency.
Moreover, it is common knowledge in the Masubia community that the coronation or inauguration takes place in isolation 3 to 4 days before the actual date communicated to the public for the unveiling of a candidate as the Chief.
The 23rd of May 2025 date communicated to the public therefore actually refers to the date of unveiling of the third respondent as chief and not the actual date of coronation. This is a custom that has been abided to for years as relates to the coronation of a chief.
The rituals to install third respondent as chief will therefore already begin on 19 or 20 May 2025.
31.5 I accordingly submit that this application should be heard as a matter of urgency as contemplated by Rule 73.’
(q)The applicants further lament the irreversible effect and irreparable harm if the coronation of the third respondent goes ahead, and aver that although the first respondent’s decision can be set aside, ‘… his review would be rendered barren in the event that the coronation takes place because of the final and irreversible effect that customary law and customs of the Masubia tradtion have once a chief has been coronated.’
(r)The above are the facts placed on record in support of urgency.
(s)On the applicants' own version, they became aware on 7 April 2025 already that the third respondent would be inaugurated as chief by the end of May 2025. The review application was instituted on 2 May 2025, almost a month later, and by 7 May 2025, the applicants had received no undertaking that the inauguration of the first respondent would be delayed or halted. It is so that no meaningful response was received from the first or second respondents by 7 May 2025, but the applicants remained aware of the looming date for inauguration. In spite of no response being received, the applicants are completely silent on what actions were taken between 7 and 13 May 2025. It seems the applicants would sit idly by and expect an undertaking from the first and second respondents, simply because the applicants had launched a review application. In fact, the applicant is also eerily silent on what happened between 7 April 2025 and 2 May 2025, when the application was launched with the knowledge that by the end of May, an inauguration would take place. No information about events between 7 and 13 May 2025 is provided either, and there was certainly no follow-up correspondence before that date.
(t)At the very least, one would expect an application for some form of interdictory relief to accompany the main review relief sought, especially as the inauguration would be scheduled for approximately six weeks ahead. Nothing prevented the applicant from following such a procedure and setting down the hearing of the interim interdict on truncated timelines, commensurate with the degree of urgency alleged to have existed at the time of institution of the review proceedings. There is simply no information placed before court for these periods by the applicant.
(u)In my view, the applicants simply sat back and waited for undertakings in what is a clearly a serious and contested issue (on the applicants’ own papers) after 2 May 2025. They then coincidentally found out on 13 May 2025 that the respondents were going ahead with the initially planned inauguration and then requested feedback on the first respondent’s letter of 7 May 2025, together with an undertaking that the inauguration would not be proceeded with.
(v)Given the applicants’ own concerns about the customs that precede the inauguration, it is difficult to fathom how the applicants effectively sat idle until 13 May 2025, and then opportunistically utilised this date together with the date of 23 May 2025 to set off urgency, and place the respondents under extreme timelines, which were not warranted in the circumstances.
(w)The above facts show that the applicants have failed to set forth explicitly the facts that render the matter urgent and the reasons why they could not be afforded substantial redress at a hearing in due course. The applicants simply paid lip service to the rule.
(x) Furthermore, it has been held that a review is fully capable of setting aside the consequences of the coronation as it is part of an administrative decision-making process that reaches finality when the procedure envisaged by s 6(2) of the Act is complied with.8 In any event, the fact that irreparable damage may be suffered is not enough to make out a case of urgency.
(y)The applicant has failed to make out a case on any of the requirements set out above for the application to be heard on an urgent basis, and therefore, the application will be struck from the roll with costs for lack of urgency.
(z)In light of the foregoing I make the following order:
The application is struck from the roll for lack of urgency.
The applicants are ordered to pay the costs of the first and third respondents, such costs to include the costs of one instructing and one instructed counsel, where employed.
The urgent application is considered finalised and removed from the roll.
_____________________
E M SCHIMMING-CHASE
Judge
APPEARANCES
APPLICANTS: P U Kauta assisted by T Luvindao
Of Dr Weder Kauta Hoveka Inc,
Windhoek
1st and 12th RESPONDENTS: J Ludwig
Of Kahengombe Law Chambers assisted by M Khupe
Office of the Government Attorney,
Windhoek
3rd RESPONDENT: N Ndaitwah
Of Ndaitwah Legal Practitioners
Windhoek
1 Per Masuku J in Nghiimbwasha v Minister of Justice (A 38/2015) [2015] NAHCMD 67 (20 March 2015) para 28.
2 Rule 73(4) of the Rules of the High Court of Namibia.
3 See inter alia Bergmann v Commercial Bank of Namibia Ltd (supra)at 51 A-C; Mweb Namibia (Pty) Ltd v Telecom Namibia Ltd And Others 2011 (2) NR 670 (SC); Stocks & Stocks Leisure (Namibia) (Pty) Ltd v Swakopmund Station Hotel (Pty) Ltd t/a The Swakopmund Station Hotel And Entertainment Centre And Others 2020 (4) NR 1117 (HC) paras 10-15.
4 The first applicant is a member of the Masubia Royal Council and Mahandu Royal Family. She is also the aunt of the third respondent. The second applicant is also a member of the Mahandu Royal family.
5 The matter was allocated to me as managing judge on 13 May 2025.
6 The notice of motion was uploaded onto ejustice on Friday, 16 May 2025 at 10h51, the respondents were served at 12h45 on Friday 16 May 2025.
7 The court set the matter down for hearing at 11h00.
8 Kapia v Minister of Regional and Local Government Housing and Rural Development[2013] NAHCMD 13 (24 January 2014) para 18; Kalenga v Minister of Urban and Rural Development NAHCMD 217 (28 June 2019) paras 24-24; see also Article 66 of the Namibian Constitution.