Muhenje v Chief Tjimbuare Thom and Others (HC-MD-CIV-ACT-OTH-2019/05028) [2025] NAHCMD 7 (20 January 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: HC-MD-CIV-ACT-OTH-2019/05028

In the matter between:

JAHENA MUHENJE 1^ST PLAINTIFF

MILKA KAZONDARATA MUHENJE 2^ND PLAINTIFF

KATUTJII THOM 3^RD PLAINTIFF

and

CHIEF TJIMBUARE THOM 1^ST DEFENDANT

VITA ROYAL HOUSE TRADITIONAL AUTHORITY 2^ND DEFENDANT

MINISTER OF URBAN AND RURAL DEVELOPMENT 3^RD DEFENDANT

BEN KARIPANDJARERE MUZUMA 4^TH DEFENDANT

THE GOVERNOR OF THE KUNENE REGION 5^TH DEFENDANT

Neutral citation: Jahena Muhenje v Chief Tjimbuare Thom (HC-MD-CIV-ACT-OTH-2019/05028) [2024] NAHCMD 7 (20 January 2025)

Coram: SCHIMMING-CHASE J

Heard: 22 – 23 March 2023; 4 – 8 March 2024 & 16 July 2024

Delivered: 20 January 2025

Flynote: Practice — Trial — Absolution from the instance at close of the plaintiff's case — Court must bring own judgment to bear on evidence adduced — Court must establish, prima facie viewed, whether there was evidence relating to the elements of the claim — Court must accept the truth of plaintiff’s evidence unless incurably and inherently improbable and unsatisfactory.

Practice — Trial — Absolution from the instance — When plausible inference in favour of the plaintiff's cause of action exists which was destructive of the defendant's version, absolution to be refused.

Customary law — Herero Customary law — Customary law is part of the law of Namibia — It must be proved in the same manner as any other customs — By persons having knowledge thereof and the period within which they have been observed.

Summary: The plaintiffs, who are duly appointed senior traditional councillors of the Traditional Authority referred to, instituted action for extensive and wide-ranging relief, seeking the removal of the first defendant, who is the duly appointed chief of the second respondent, the Vita Royal House Traditional Authority. They sought an order accepting and confirming the Chief’s resignation from his position, alternatively an order directing the third respondent, the Minister of Urban and Rural Development (‘the Minister’), to remove the Chief from his position as the Chief of the Vita Royal House Traditional Authority. They also sought an order directing the fifth defendant, the Governor of the Kunene Region (‘the Governor’), to appoint the third plaintiff, a member of the royal family of the Vita Royal House, designated by the Vita Traditional Community in terms of s 4 of the Traditional Authorities Act 25 of 1990, to become the next chief of the Vita Royal House Traditional Authority.

At the close of the plaintiff’s case, the defendants applied for absolution from the instance, arguing that the relief sought is ultra vires the Traditional Authorities Act, and that the applicable customary law has not been properly proved by the leading of expert evidence. It was also argued that any attempts by the plaintiffs to remove the Chief were unlawful.

The plaintiffs contended that prima facie admissible evidence has been disclosed to show potential transgression of the provisions of the Act, and the applicable customary law of the traditional community of the Vita Royal House Traditional Authority. They further contended that there is prima facie evidence showing that there was sufficient reason to warrant the removal of the Chief, and that he was so removed in accordance with the customary law of the community and, as envisaged in s 8 of the Act. The plaintiffs argued that their evidence was tendered not as experts, but as people with long standing institutional knowledge and memory of how those customary laws operated, and that they need not qualify as experts for the purposes of tendering the relevant evidence.

Held that, at the stage of absolution from the instance at close of the plaintiff’s case, the court must bring its own judgment to bear on the evidence adduced, to determine whether there was evidence relating to the elements of the claim.

Held further that, the court must also accept the truth of the plaintiff’s evidence at the absolution stage, unless incurably and inherently improbable and unsatisfactory. When a plausible inference in favour of plaintiff's cause of action exists, absolution, which in any event should be carefully granted, is to be refused.

Held further that, customary law is part of the law of the Namibia and must be proved in the same manner as any other custom, inter alia, by persons having knowledge thereof and the period within which they have been observed said customs.

Held further that, the plaintiffs, on their evidence as tendered, have made out a prima facie case. Their evidence was not inherently improbable.

Held further that, the evidence of the witnesses was not tendered as expert evidence and was accordingly admissible prima facie evidence of the existence and interpretation of the customary laws to put the defendants on their defence for a determination to be made in terms of, inter alia, s 8 of the Act. Accordingly, absolution from the instance is refused with costs.

ORDER

1. The application for absolution is dismissed with costs.

2. The matter is postponed to 10 February 2025 at 15h30 for a status hearing for allocation of dates for continuation of trial.

3. The parties must file a joint status report proposing trial dates on or before 5 February 2025.

JUDGMENT

SCHIMMING-CHASE J:

Introduction

1. This is an application for absolution from the instance at the close of the plaintiffs’ case. At the heart of the dispute lies an extended period of discontent between duly appointed senior traditional councillors (the plaintiffs) of the Vita Royal House Traditional Authority (‘Traditional Authority’), and their duly appointed chief, Chief Tjimbuare Thom (‘the Chief’). All the parties are duly appointed in their designated capacities in terms of ss 10 and 4, respectively, of the Traditional Authorities Act 25 of 1990 (‘the Act’). Their designated capacities play an important role in the determination of this application for absolution.

2. The plaintiffs instituted action for extensive and wide-ranging relief encompassing seven claims, seeking the removal of the Chief from his position as Chief of the Traditional Authority. The relief sought is substantially the same, and can be summarised as follows:

(a) to accept and confirm the Chief’s resignation from position as Chief of the Traditional Authority, alternatively, his removal from the aforesaid position;

(b) to direct the third defendant, who is the Minister of Urban and Rural Development (‘the Minister’), to remove the Chief from his position as Chief of the Traditional Authority in terms of s 8 of the Act;

(c) to direct the fifth defendant, who is the Governor of the Kunene Region (‘the Governor’), to appoint the third plaintiff, Katutjii Thom, who is a member of the royal family of the Traditional Authority, ‘designated by the Vita Traditional Community in terms of s 4 of the Act to become the next Chief of the Vita Royal House Traditional Authority’ (due to the similarity in names, I refer to the third plaintiff as cited); and

(d) to direct the Minister to appoint the third plaintiff as Chief of the Vita Royal House.

3. The above relief is based on allegations of actions allegedly taken by the Chief, resulting in him not being a fit and proper person to remain as the Chief any further. In the result, the plaintiffs claim that, by his aforementioned conduct, the Chief either factually removed himself from his seat by virtue of his actions, or that he was in any event removed as the Chief by the traditional community, via due process and by customary law at an annual general meeting of the Traditional Authority, which took place on 19 April 2019. The third plaintiff was appointed as the new chief at this annual general meeting, in accordance with the customary laws of the Traditional Authority.

The pleadings

4. Before summarising the particulars of claim, I set out the provisions of s 8 of the Act. This section, and some others that I deal with, where relevant, set out the manner in which a chief of the Traditional Authority may be removed. The section also provides contextual background to the dispute between the parties to this action.

5. Section 8 of the Act provides as follows:

‘Removal and succession of chief or head of traditional community

8. (1) If there is sufficient reason to warrant the removal of a chief or head of a traditional community from office, such chief or head may be removed from office by the members of his or her traditional community in accordance with the customary law of that community.

(2) If, by reason of removal from office as contemplated in subsection (1) or death, a chief or head of a traditional community ceases to perform the functions of his or her office, the members of that traditional community, who are authorized thereto by customary law, may designate in accordance with this act a member of that traditional community to replace such chief or head.

(3) If a chief or head of a traditional community has been removed from office as contemplated in subsection (1), the Minister shall notify the President of such removal in writing, specifying the name, office, traditional title, if any, date of removal of the chief or head concerned, and the name of the traditional community in respect of which such chief or head has been removed from office.

(4) The President shall on receipt of a notice referred to in subsection (3) recognize the removal from office of the chief or head of the traditional community concerned by proclamation in the Gazette, setting out in such notice the particulars referred to in that subsection with regard to such chief or head of the traditional community.’ (Emphasis supplied).

6. The particulars of claim are extensive and fall under seven different claims. I summarise them as succinctly as I can.

7. The plaintiffs’ plead, as background and context to the claim, that the Chief is required to be the custodian of the customary law of the traditional community which he or she leads; to exercise his powers and perform his or duties and functions and in accordance with the customary law of the Traditional Authority; to, subject to ss 8(2) and 15(5) of the Act, appoint any other member of his traditional community to act in his place when he is for any reason unable to act as chief or head of that traditional community; to perform such other powers and exercise such other duties or functions as may be conferred upon him by statutory law or the applicable customary law, and to assign one or two senior traditional councillors to assist him in the administering of the affairs of the Chief's council or the traditional council, as the case may be.

8. The first and second plaintiffs outline their primary functions and duties as senior traditional councillors. They are pleaded as rendering assistance to the Chief in the performance of his functions; advising the Chief with regard to the performance of his functions; and exercising and/or performing such other powers, duties or functions as may be delegated or assigned to any of them by the Chief in furtherance of the best interests of the traditional community.

9. The first and second plaintiffs lament that they have been unable to perform their functions and fulfil their duties in terms of the Act, and this inability is directly caused by the Chief, in that he does not consult and/or engage the first and second plaintiffs and/or his senior traditional councillors, or traditional councillors, and in any event the traditional community at large, before he undertakes any activity or function. These actions are pleaded to be contrary to his obligations in terms of the applicable customary law, and the Act.

10. According to the plaintiffs, the Chief took certain actions that are contrary to the Act, the customary law of the Traditional Authority, and the provisions of the Constitution of the Traditional Authority, which the plaintiffs testified was adopted.¹ According to the plaintiffs, this rendered him unfit to hold the position. In the alternative, it is pleaded that the Chief was removed in accordance with the customary laws of the Traditional Authority, at a duly constituted annual general meeting, which was held on 19 April 2019. It is common cause that the Chief was invited to, but did not attend this annual general meeting.

11. As part of their first claim, the plaintiffs plead that after the death of a sitting senior traditional councillor, the Chief appointed the fourth defendant in his place as a senior traditional councillor, which appointment was endorsed by the Minister on 5 June 2015. The Chief’s actions are alleged to be in breach of the applicable customary law because the appointment was undertaken without consultation with the Chief’s council and, in particular, the first and second plaintiffs. It is pleaded that the chief did not consult any of his senior traditional councillors or his traditional councillors, or even the traditional community at large, before he made this decision.

12. The first and second plaintiffs, consequently, instituted contempt of court proceedings before this court under case number A 340/2015. That matter was subsequently settled between the parties, and the settlement agreement was made an order of court. The plaintiffs claim that the Chief does not abide by the terms of the settlement agreement and continues to exclude them completely from fulfilling their statutory functions to the benefit of the traditional community.

13. In their second claim, the plaintiffs aver that during 2015, the Chief moved the central seat of the Traditional Authority from Opuwo to Otjijandjasemo Village, in the Opuwo District in the Kunene Region. A copy of the relevant Government Gazette dated 31 March 1998 was attached confirming this.

14. The Chief also applied to the Governor for the Kunene Region to have an office constructed for the Traditional Authority at Otjijandjasemo. It is alleged by the first and second plaintiffs that by moving the seat of the Vita Royal House Traditional Authority to Otjijandjasemo, the Chief expressed a blatant disregard for the historical significance of Opuwo as the central seat of the Traditional Authority.

15. The plaintiffs plead that Opuwo is historically significant as the central seat because all the former chiefs of the Traditional Authority have been buried in Opuwo. In addition, they plead that the town of Opuwo is centrally and conveniently located to accommodate the majority of the members of the traditional community. The plaintiffs allege that the village of Otjijandjasemo is remote and inconveniently located and that it cannot accommodate the majority of the traditional community. The plaintiffs claim that by moving the Traditional Authority’s seat to Otjijandjadsemo, the Chief allegedly expressed a blatant disregard for the customary law of the Traditional Authority in that it dictates that the central seat of the Traditional Authority is attached to – and cannot be severed from – Opuwo.

16. The first and second plaintiffs plead that the Chief, in breach of the customary law, did not consult any of his senior traditional councillors or his traditional councillors, or even the traditional community, at large, before he moved the central seat of the Traditional Authority to Otjijandjasemo.

17. The plaintiffs’ third claim relates to the official stamp of the Traditional Authority. It is alleged that during the course of 2019, the Chief prepared a new stamp for the Traditional Authority. This new stamp indicates that the official office of the Traditional Authority is situated in Okanguati Village, which lies in the Kunene Region. The Chief’s actions effectively moved the Traditional Authority’s official office from Opuwo to Okanguati, according to the plaintiffs.

18. It is alleged that the Chief expressed a blatant disregard for the significance of the initial stamp of the Traditional Authority, before he changed the same. The plaintiffs aver that, in breach of the customary law, the Chief did not consult the plaintiffs or any of his senior traditional councillors or his traditional councillors, or even the traditional community, at large, before he engaged in this activity.

19. In the plaintiffs’ fourth claim it is averred that the Chief also changed the Traditional Authority’s letterhead, which is apparently also in breach of customary law because the Chief did not consult any of the plaintiffs, nor any of his senior traditional councillors, or even the traditional councillors when he made this decision.

20. The fifth claim is that the Chief has refused to meet with the Traditional Authority’s traditional councillors, including the first and second plaintiffs, on countless occasions, and also indicated that he would not attend any meetings with the plaintiffs in writing.

21. On 26 May 2014, a letter was addressed by the first and second plaintiffs to the Chief requesting mediation to address their issues with the councillors. The Chief did not respond to this letter and showed no intention to attend the said mediation or to meet with the senior traditional councillors, as aforesaid. On 22 September 2014, a similar letter was addressed to the Chief, and he was again requested to attend the mediation. This, according to the plaintiffs, is a breach by the Chief of in his duties in terms of the applicable customary law as well as in breach of the Act.

22. The sixth claim relates to the Chief opening a new banking account for the Traditional Authority, into which account monies from the State are deposited for purposes of the functioning of the Traditional Authority. This, too, was ostensibly done without consultation.

23. The seventh claim relates to the removal of the Chief. The plaintiffs allege that they invited the Chief to an annual general meeting of the Traditional Authority scheduled for 19 April 2019. The Chief was not only invited in writing, but a radio announcement of the meeting on the Otjiherero radio service was also made.

24. On 9 April 2019, the Executive Director of the Ministry advised the Chief not to attend the meeting. The Executive Director’s advice was that the plaintiffs could not convene an annual general meeting without consulting the Chief, and that the proposed meeting was null and void. On 18 April 2019 and acting on this advice, the Chief responded that he received the invitation to the meeting and that he decided not to attend it. He further indicated that he considered the meeting to be null and void.

25. According to the plaintiffs, the Chief, through his actions, expressed his disinterest in the activities and happenings of the traditional community at large, and that he, without reasonable cause, refused and/or neglected and/or failed to attend the annual general meeting with the plaintiffs and the traditional community.

26. Therefore, on 19 April 2019 and at the Traditional Authority’s annual general meeting, the traditional community resolved to apply to the Minister to designate the third plaintiff as the new Chief of the Traditional Authority. From the minutes of the annual general meeting, it was attended by 216 people, and proceedings were in the absence of the Chief. The Chief was apparently removed at the annual general meeting and, in accordance with the said resolution, a certain Mr Tjingorori, who is a senior traditional councillor of the Traditional Authority, was authorised to submit an application to the Minister, for the Minister to appoint the third plaintiff as chief. This application indicates that the number of members of the Traditional Authority is 5000. The aforesaid application was made in terms of the Act.

27. The third plaintiff’s application to be designated as the new chief could not be submitted to the Minister because it could not be completed due to the Governor’s refusal to endorse it (as part of the completion of the relevant forms), in breach of his duties under the Act.

28. As a result of the aforementioned actions, the plaintiffs allege that the Chief factually removed himself from his seat as the Chief of the Traditional Authority, and that he is no longer a fit and proper person to act as the Chief. Alternatively, it should be deemed that the Chief was lawfully removed from his seat by virtue of the annual general meeting resolution of 11 April 2019, hence the claim for an order that the Minister remove him in accordance with s 8(1) of the Act.

29. The Chief, the Traditional Authority, the Minister and the Governor, all represented by the Government Attorney, defended the action. I note that in the plea, it was challenging to understand allegations when events referred to only the Chief, for example. It would have merited consideration to appoint separate legal representation in these circumstances, given the nature of the relief sought and the independent functions of the defendants. The fourth respondent also defended the action, but his opposition does not require dealing with at this stage of the proceedings. In any event, he essentially makes common cause with the other defendants in their defence of the action, and in this application for absolution. I refer to them collectively as the defendants and individually where the context requires.

30. The defendants deny outright that the Traditional Community has chosen or designated any other person to become the next chief. They plead that s 4 of the Act has not been complied with. They plead in that a case for removal has not been made out and that the plaintiffs are not entitled in law to remove the Chief.

31. The Chief denies the plaintiffs’ claims and pleads that he has, at all material times, acted in accordance with his duties as stipulated in the Act and the customary law of the Traditional Authority, and that the plaintiffs have not rendered the required assistance to him as propounded by them. The Chief pleads that it is the plaintiffs that are in breach of their own duties, driven by their own agendas to remove him. He pleads that they fail completely to render assistance to him in the execution of his official duties, and sabotage the relationship within the traditional council. Furthermore, that the duty to consult when taking decisions that have an impact on governance and the well-being of the traditional community and the Traditional Authority is settled and recognised.

32. The defendants plead that the first and second plaintiffs refuse and/or neglect to cooperate with the Chief and the Minister. It is further pleaded that the plaintiffs continuously fail or neglect to perform their statutory and customary law duties and functions.

33. The defendants plead that, in any event, the allegations set out by the plaintiffs are not sufficient to warrant the removal of the Chief from office, nor do they render him unfit to do so, and that the plaintiffs are not entitled to resolve to remove the Chief from office. It is pointed out that no demand was made for the Chief to remove himself as chief, and that he remains the Chief of the Traditional Authority, in law.

34. With regard to the appointment of the fourth defendant as a senior traditional councillor, it is pleaded that his appointment was undertaken in accordance with the provisions of s 10(2) of the Act and that a ministerial investigation for these purposes was conducted. The appointment was regular and in accordance with the relevant laws.

35. Concerning the change of the administrative seat of the Traditional Authority, it is pleaded that it was appropriate that the seat of the Traditional Authority be located in the traditional communal lands administered by it, and not within municipal land, to which it was not only obliged to pay rates and taxes and other utilities, but was also inaccessible to the majority of the members of the traditional community. Further and in any event, the seat of the Traditional Authority is an administrative matter, which has no impact on the customs and traditions of the traditional community. It is also pleaded that that the traditional councillors of the Traditional Authority and the traditional community, at large, were consulted on the moving of the seat of the Traditional Authority.

36. In response to the allegations relating to the ‘unlawful’ change of the Traditional Authority’s stamp and the operating of a banking account, it is pleaded that the stamp of the Traditional Authority was subject to abuse and misuse, which resulted in unlawful allocation of customary land. This necessitated the need to change the stamps. Further, senior traditional councillors and traditional councillors were consulted before the stamp was changed. In any event, it is pleaded that this decision was administrative. The operating of a bank account is similarly an administrative matter, and the traditional councillors of the Traditional Authority were consulted on the operation of the said banking account as well.

37. With reference to the alleged change of letterhead, it is pleaded that the change of the details of the Traditional Authority’s official letterhead is an administrative matter and, further, that the traditional councillors were consulted on the change of letterhead.

38. As regards the meeting of 19 April 2019, the defendants plead that the ‘purported’ annual general meeting is not, under any law, entitled to resolve to remove the Chief, and that, in any event, the minutes of the meeting reflect that there was no formal resolution to remove the Chief. In amplification, it is pleaded that the plaintiffs are not authorised to convene the annual general meeting of the Traditional Authority. The purported meeting was a nullity from the onset as its convention was procedurally flawed because the plaintiffs failed to adhere to the laws governing the affairs of the Traditional Authority. The Chief avers that he took a decision not to participate in an irregular meeting, but that does not mean that he relinquished his responsibilities in relation to the affairs of the Traditional Authority.

39. The issues for determination in the pre-trial order are the following:

1. whether a Chief of the Traditional Authority may be removed from office by members of his traditional community;

2. whether the Chief of the Traditional Authority has life tenure of the office as per customary law;

3. whether the Chief is duty-bound to consult the first and second plaintiffs, inter alia, in the exercise of his powers under the Act and the customary laws of the Traditional Authority;

4. whether the third plaintiff has been duly designated by the Traditional Authority in terms of s 4 of the Act to become the next chief of the Traditional Authority;

5. whether the Chief refused to cooperate and meet with the first and second plaintiffs after their reinstatement in 2016;

6. whether such refusal has, in essence, crippled the operations of the Traditional Authority;

7. whether the actions of the Chief render him unfit to be the chief of the Traditional Authority;

8. whether the appointment of the fourth defendant was appointed in accordance with the customary laws of the Traditional Authority;

9. whether by moving the seat of the Traditional Authority to Otjijandjasemo, the Chief expressed a blatant disregard for the historical significance of Opuwo as the central seat of the Traditional Authority;

10. whether the Chief is in breach of the customary laws and/or legislation by changing the Traditional Authority’s banking details, letterhead, and stamp without consulting the plaintiffs, or his senior traditional councillors, or councillors;

11. whether the Chief is a fit and proper person to remain as the chief of the Traditional Authority;

12. whether the Chief has duly been removed as the chief of the Traditional Authority; and

13. whether the Chief has effectively removed himself as the chief of the Traditional Authority.

The evidence

40. The plaintiffs led the evidence of three witnesses; Mr Jahena Muhenje, the first plaintiff, Mr Venyenguaije Thom and Mr Ben Kapi. It is clear at the outset that there is serious discord between two ‘factions’ in the leadership of the Traditional Authority that has not been able to be resolved,

41. The evidence is a repetition of the claims. The evidence relating to the change of the official seat, letterhead, stamp, and banking details of the Traditional Authority is not disputed, nor is the replacement of the senior traditional councillor that passed on. What is in dispute is whether there was consultation with the plaintiffs in their capacities, whether the Chief is executing his duties as traditional leader, and whether he was removed as the chief of the Traditional Authority according to the customary law of the Traditional Authority, and at the annual general meeting of 19 April 2019.

42. The first plaintiff testified that his information on customary law comes from decades of observation and personal experience, but he was not an expert in customary law per se. He stated that in terms of the customary laws of the Traditional Authority, the Chief does not have sole powers to act without the advice and/or the assistance of his council. Therefore, the Chief acted ultra vires the powers conferred to him as the chief of the Traditional Authority. He stated that the Chief is obliged to act in the best interests of the traditional community, but that he does not do so.

43. Mr. Venjenguaje Thom is a member and, previously an appointing authority of the Traditional Authority. He was the appointing authority for the Chief. He testified that the resolution or decision to remove the Chief was that of the Vita royal family, which includes and the descendants and parents. This decision fell within the purview of the royal family and includes the right to appoint someone in a new position. He further testified that the decision to remove the Chief was made by the relevant leaders, according to the authority and their customary laws, which bestows upon them that right.

44. Mr Thom further testified that the Governor did not complete Part C of the relevant prescribed form because he decided to side with the defendants. Mr Thom testified that in terms of the customary laws and the Act, he was empowered to designate the third plaintiff as the chief of the Traditional Authority, which was undertaken after discussion at the annual general meeting.

45. Mr Ben Kapi is the secretary of the Traditional Authority appointed in terms of s 10 of the Act. He is the custodian of all the documents of the Traditional Authority and performs his duties and functions as assigned to him by the Chief. He testified that in terms of the Act and the customary law, a chief does not have the right to make a decision about the issues of the royal house without his council because the chief represents a traditional community.

46. He also testified that the people of Otjokavare were not satisfied with the appointment of the fourth defendant, and there are still disputes surrounding that appointment as it was done incorrectly. According to him, another person by the name Agas Muzuma, who is the nephew of the deceased councillor, should have been appointed in his stead.

47. He confirmed that the Chief refused to cooperate with the senior traditional councillors after their reinstatement, and that he did not assign tasks to him or the plaintiffs. He testified that the last time the Chief had a meeting with the senior traditional councillors was in 2014.

48. He confirmed the Chief’s alleged refusal to cooperate with the first and second plaintiffs has crippled the operations of the Traditional Authority. Mr Kapi testified that the functions of the Traditional Authority are not being carried out in an appropriate way or in the way that they are supposed to because of the Chief’s refusal to cooperate or consult. Thus, there is a problem in the performance of the Traditional Authority.

49. Mr Kapi referred to the Traditional Authority’s Constitution that was adopted by a congress called by the royal house on 23 July 2012. The defendants, at cross-examination stage, were unable to dispute the veracity of this Constitution as testified to by Mr Kapi.

50. As regards the customary laws relating to the appointment of the third plaintiff as the chief, Mr Kapi testified that on the paternal and maternal details of the third plaintiff, his mother is Ziree and his father was a son of Late Chief Kapuka Thom. Therefore, the third plaintiff is in the line of succession.

51. This concludes the short analysis of the evidence of the plaintiffs and I will now shortly deal with the well-established principles relating to applications for absolution from the instance.

Applicable law and discussion

52. The test to be applied by the court at this stage of the trial is: whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff.² To put it pertinently, the court must consider whether the plaintiff has made out a prima facie case.³

53. In Dannecker v Leopard Tours & Camping Hire CC,⁴ Damaseb JP outlined the following considerations when applying the test for absolution from the instance at the close of the plaintiff's case:

1. Absolution at the end of the plaintiff's case ought only to be granted in a very few clear cases where the plaintiff has not made any case at all, in fact and law.

2. The plaintiff is not to be lightly shut out where the defence relied on by the defendant is peculiarly within the latter’s knowledge while the plaintiff had made out a case calling for an answer (or rebuttal) on oath.

3. The trier of fact should be on guard for a defendant who attempts to invoke the absolution procedure to avoid coming into the witness box to answer uncomfortable facts having a bearing on both credibility and the weight of the probabilities in the case.

4. Where the plaintiff's evidence gives rise to more than one plausible inference, anyone of whom is in his favour in the sense of supporting his or her cause of action and destruction of the version of the defence, absolution is an inappropriate remedy.

5. Perhaps most importantly, in adjudicating an application for absolution at the end of plaintiff's case, the trier of fact is bound to accept as true the evidence led by and on behalf of the plaintiff, unless the plaintiff's evidence is incurably and inherently so improbable and unsatisfactory as to be rejected out of hand.

54. The defendants’ stance is that the Minister is not the arbiter of customary law and therefore not clothed with the power to remove the Chief. Resultantly, the relief sought by the plaintiffs is ultra vires the provisions of the Act. They argue that the transgressions alleged to have taken place are administrative in nature and that the Chief should have been taken on review. They further allege the Chief was unlawfully removed, and not in terms of the customary law of the traditional community concerned. Finally, the defendants take the stance that the plaintiffs have not produced expert evidence of the customary law concerned.

55. I have considered the evidence and arguments presented and I note that s 8 (3) of the Act provides that if a Chief has been removed as contemplated in subsection (1), the Minister must notify the President, after which the President gives recognition to such removal in the Government Gazette in terms of s 8(4).

56. Given the manner in which the relief is framed by the plaintiffs, I hold the view that a portion of the relief sought is incompetent in light of the provisions of s8. However, the first portion of the relief relating to the removal of the Chief, according to customary law and the Act, remains a determination to be made at trial.

57. In terms of s 1 of the Act, customary law means the customary law, norms, rules of procedure, traditions, and usages of a traditional community in so far as they do not conflict with the Namibian Constitution or with any other written law applicable in Namibia.

58. ‘Traditional community’ is defined as an indigenous homogenous, endogamous social grouping of persons comprising of families deriving from exogamous clans which share a common ancestry, language, cultural heritage, customs, and traditions, who recognises a common traditional authority and inhabits a common communal area and may include the members of that traditional community residing outside common communal area.

59. The court in Kaputuaza v The Executive Committee of the Administration for the Hereros⁵ dealt with the question of proving Herera customs. That court outlined that Herera customs ought to be proved in the same manner as any other customs, namely, by persons having knowledge and the period over which they have been observed. The court further held that in the event that a dispute arose regarding Herera customs, such law of Namibia of which a court can take judicial notice, need not be proved by qualified experts in the same manner as foreign law.⁶

60. This same approach was also used in Van Breda v Jacobs,⁷ where the Court grappled with the validity of customary practice among fishermen. The court held that that the customs observed (as opposed to customary law) can be proved in the same manner as any other customs, ie ordinary persons who have knowledge of the nature of the customs and the period over which they have been observed. It has authoritatively been held that the party relying on such customs must prove it beyond a reasonable doubt.⁸

61. It is clear from the evidence of the witnesses that they did not hold themselves out as experts, and no expert notices or summaries from either side were filed. Given the provisions of the pre-trial order, It is somewhat glib, given that the parties never requested or filed expert reports, that the defendants now insist that absolution must be granted because of the failure to follow this process, and the absence of expert testimony.

62. The first and second plaintiffs are senior traditional councillors of the Traditional Authority appointed and entrusted to uphold the Traditional Authority’s customary laws in terms of the Act. They have locus, and have prima facie shown that there are legitimate concerns about the running of the Traditional Authority, which requires a response, especially given the defendants’ own contrary allegations in their plea(s).

63. The defendants argued that the 216 attendees at the annual meeting of 11 April 2019 were insufficient to warrant the removal of the Chief, considering that the community comprises approximately 5000 people. They further argued that the meeting minutes fail to demonstrate a resolution for the Chief’s removal. Mr Thom, during cross-examination, testified that the 216 attendees were from the branches of the Traditional Authority. I must take this as correct for purposes of the test for absolution.

64. Given that the court must be chary to grant absolution from the instance, coupled with the admissible evidence tendered by the plaintiffs, I find that the defendants have not made out a case for absolution from the instance, and that same must be refused.

65. It is trite that costs must follow the event, and I find that there are no reasons proffered to deviate from this well-established principle. Therefore, the first, third and fifth defendants must pay the plaintiffs’ costs of this application subject to the limitation provided for in rule 32(11).

66. In the result, the following order is made:

1. The application for absolution is dismissed with costs.

2. The matter is postponed to 10 February 2025 at 15h30 for a status hearing for allocation of dates for continuation of trial.

3. The parties must file a joint status report proposing trial dates on or before 5 February 2025.

______________________

E M SCHIMMING-CHASE

Judge

APPEARANCES

PLAINTIFFS: K Kangueehi

Of Kangueehi & Kavendjii Inc..

Windhoek

1^ST, 3^RD & 5^TH DEFENDANTS: J Ncube

Of the Office of the Government Attorney,

Windhoek

4^TH DEFENDANT: N Tjombe

Of Tjombe-Elago Inc.,

Windhoek