Shipanga v Shipanga and Another; InRe: Shipanga v Kautwima ( I 259/2012 ) [2014] NAHCMD 318 (30 October 2014);

Group

Full judgment

REPUBLIC OF NAMIBIA


HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case no: A 419/2013



DATE: 22 OCTOBER 2014



REPORTABLE


In the matter between:


DEON ELLEN GAWANAB..................................................................................1ST APPLICANT



THE TECHNICAL COMMITTEE OF CONCERNED

MEMBERS OF THE! KHOMANIN TRADITIONAL COMMUNITY...................2ND APPLICANT



And


! KHOMANIN TRADITIONAL AUTHORITY..........................................FIRST RESPONDENT


GOVERNMENT OF THE REPUBLIC OF NAMIBIA........................SECOND RESPONDENT


DAMARA KING’S COUNCIL................................................................THIRD RESPONDENT


JULIANA GAWA! NAS......................................................................FOURTH RESPONDENT


Neutral citation: Gawanab v! Khomanin Traditional Authority (A 419/2013) [2014] NAHCMD 313 (22 October 2014)


Coram: UEITELE, J

Heard: 31 July 2014

Delivered: 22 October 2014

Flynote: Practice - Pleading - Declaration - Necessity to make averments showing defendant has locus standi - No presumption that a voluntary association is a corporate body.


Practice - Party - Locus standi - Party must demonstrate that he has direct interest in the subject of litigation- Such standing cannot be acquired by invoking the fact that party is a member of a given community


Summary: The applicants commenced proceedings by Notice of Motion against the !Khomanin Traditional Authority (as the first respondent) the Government of the Republic of Namibia (as the second respondent) the Damara Kings’ Council (as the third respondent) and Juliana Gawa-!Nas (as the fourth respondent). In their application the applicants are amongst others asking this court to order the !Khomanin Traditional Authority to convene a meeting of the !Khomanin Traditional Community, within 21 days from the date that the court makes the order, for the purpose of electing a Chief of the !Khomanin Traditional Community.


The first, second and fourth respondents opposed the applicants’ claim. In its opposition the first applicant has raised two preliminary points, first it challenges the applicants’ capacity (i.e. locus standi) to institute these proceedings. Secondly it raises the point that there are material disputes on the facts which disputes cannot be resolved on the papers and the applicants ought to have foreseen that .The first respondent objects to the first applicant’s capacity on the round that both the first and the second applicants failed to make out a case by making satisfactory allegations proving their locus standi.


Held that it is now a well-established principle of our law that an applicant must, in his or her founding affidavit make out the case for the remedy which he or she seeks from the court. In other words the applicant must in his or her founding affidavit, set out the factual averments which, if found to be accurate at the hearing will entitle him or her to some relief. Further that a litigant must have a direct and substantial interest in the outcome of legal proceedings.


Held further, in order to determine whether an association of individuals is a corporate body which can sue in its own name, the court has to consider the nature and objects of the association as well as its constitution and if these shows that it possess the characteristics of a corporation or a universitas then it can sue in its own name, and that the first applicant has failed to demonstrate that it is a universitas entitling it sue in its own name.


Held further, that the second applicant too, has failed to prove that he is authorised by the customary law of the !Khomanin Traditional Community set in motion the process of designating a leader of the !Khomanin Traditional Community and that he therefore has failed to demonstrate that he has locus standi.

ORDER

(a) The applicants in this application do not have the necessary locus standi to institute this application.


(b) The applicants’ application is accordingly struck from the roll.


(c) The applicants are ordered to, jointly and severally the one paying the other to be absolved, pay the respondents’ costs the costs to include the cost of one instructing and one instructed counsel.


JUDGMENT

BACKGROUND


UEITELE, J


[1] This matter concerns the !Khomanin Traditional Community one of the many traditional communities in Namibia. The first applicant in this matter is a certain Deon Ellen Gawanab a member of the !Khomanin Traditional Community who describes himself as a ‘previous traditional councilor of the !Khomanin Traditional Authority and an “aspiring Chief” of the !Khomanin Traditional Authority’. The second applicant is, the Technical Committee of the Concerned Members of the !Khomanin Traditional Community (I will in this judgment refer to it as the Technical Committee) and was established, on 6 July 2013, by some members of the !Khomanin Traditional Community, for the purpose of dealing with various ‘burning issues’ in the !Khomanin Traditional Community. The second applicant identified leadership and succession issues as some of the ‘burning issue’ in the !Khomanin Traditional Community.


[2] The background of this application is briefly as follows. Section 2 of the Traditional Authorities Act 2000[1] (I will in this judgment simply refer to it as “the Act”) makes provision for every traditional community to establish a Traditional Authority for that community. The traditional authority consists of a chief or head of the traditional community, senior traditional councilors and traditional councilors. The Chief or head of the traditional community must be designated or recognized in accordance with the Act, and the senior traditional councilors or traditional councilors must be appointed or elected in accordance with the Act.


[3] The existence of the !Khomanin Traditional Community precedes the enactment of the Act in the year 2000, but on 30 April 2002, the late Josephat Gawa-!Nab was recognized as the Chief of the !Khomanin Traditional Community. The late Josephat Gawa-!Nab remained Chief of the !Khomanin Traditional Community until his death on 09 October 2013.


[4] After the death Josephat Gawa-!Nab the !Khomanin Traditional Authority attempted to install, Juliana Gawa-!Nas (the fourth respondent) who is the daughter of the late Josephat Gawa-!Nab, as Chief of the !Khomanin Traditional Community. The first applicant and some members of the !Khomanin Traditional Community opposed the installation of Juliana Gawa-!Nas as the Chief of the !Khomanin Traditional Community. This community has thus since 09 October 2013 been without a chief or leader.


[5] On 21 November 2013 the first and second applicants commenced proceedings by Notice of Motion against the !Khomanin Traditional Authority (as the first respondent) the Government of the Republic of Namibia (as the second respondent) the Damara Kings’ Council (as the third respondent) and Juliana Gawa-!Nas (as the fourth respondent). In their application the applicants are asking this court to:


(a) Order the !Khomanin Traditional Authority to convene a meeting of the !Khomanin Traditional Community, within 21 days from the date that the court makes the order, for the purpose of electing a Chief of the !Khomanin Traditional Community.


(b) Order and direct the !Khomanin Traditional Authority to place advertisements through the Damara Nama Radio and two local newspaper at least 14 days before the intended date of the meeting providing full details of the time and venue of such meeting.


(c) Interdict the !Khomanin Traditional Authority from appointing any person as chief of the !Khomanin Traditional Authority before the meeting of the !Khomanin Traditional Community is held.


[6] The first, second and fourth respondents are opposing the applicants’ claim. In its opposition the first applicant has raised two preliminary points, first it challenges the applicants’ capacity (i.e. locus standi) to institute these proceedings. Secondly it raises the point that there are material disputes on the facts which disputes cannot be resolved on the papers and the applicants ought to have foreseen that .The first respondent objects to the first applicant’s capacity on the round that both the first and the second applicants failed to make out a case by making satisfactory allegations proving their locus standi.


[7] I am of the view that I, first have to examine the preliminary objections raised by the first respondent as regards the applicants’ capacity to institute these proceedings. But before I examine the claim by the applicants that they are entitled to institute these proceedings and the objection by the first respondent, I find it fitting to preface my examination with the following comment. It is now a well-established principle of our law that an applicant must, in his or her founding affidavit make out the case for the remedy which he or she seeks from the court. In other words the applicant must in his or her founding affidavit, set out the factual averments which, if found to be accurate at the hearing will entitle him or her to some relief. The position is articulated as follows by Herbstein & Van Winsen[2]:


As in the summons it must appear from the application that the applicant has an interest or a special reason entitling the bringing of the application – that he has locus standi in the matter…’


With this preface I will now turn to consider whether or not the applicants do have locus standi in this application. If find it convenient to first deal with the position of the second applicant.


The second applicant


[8] The first and second applicant made a joint cause on the matter. The founding affidavit in this application was deposed to by the first applicant, a supplementary affidavit (although I doubt the procedural correctness of filling a supplementary affidavit without leave of court I will say nothing about it because the point was not argued at the hearing of this application) was deposed to by a certain Ms Rosalinda Vesolila Namises. In his affidavit the first applicant makes the following averments as regards the second applicant:


The 2nd Applicant is the Technical Committee of Concerned Members of the !Khomanin Traditional Community, a committee established by concerned members of the !Khomanin Traditional Community with the specific aim of ensuring compliance with the Constitution of the !Khomanin Traditional Authority in all matters affecting the !Khomanin Traditional Community including the issue of succession. The 2nd applicant was established on the 06 July 2013 to deal with many problems affecting the community including land and the issue of succession.


[9] Ms Rosalinda Vesolila Namises makes the following averments as regards the second applicant:


The 2nd Applicant is the Technical Committee of Concerned Members of the !Khomanin Community. The 2nd applicant was established on 6 July 2013 at Windhoek during a meeting attended by 118 members of the !Khomanin Traditional Community and its mandate was to deal with various burning issues in the community like land, leadership challenges and the issue of succession. The 2nd applicant did engage the late Chief Josephat Gawa-!Nab to raise the aforesaid issues before he died.’


[10] In the matter of Kerry McNamara Architects Inc and Others v Minister of Works, Transport and Communication and Others[3] this court accepted the common law principle that a litigant must have a direct and substantial interest in the outcome of legal proceedings. Devenish[4] explains this requirement as follows:


This [the requirement that a litigant must have legal interest] requires that a litigant should both be endowed with the necessary capacity to sue, and have a legally recognized interests in the relevant action to seek relief.’


[11] Mr Namandje who appeared for the respondent argued that the applicants said nothing in order for one to be able to determine whether or not the Technical Committee as a voluntary body or association is a universitas with the capacity to litigate in its name. Our law recognizes two classes of persons namely natural persons and juristic/artificial persons. A natural person acquires his or her legal personality (rights, duties and capacity) at birth while a juristic person acquires its legal personality from its constituent instrument or by the operation of the law. Our law recognizes the following entities as juristic persons:


(a) Associations incorporated in terms of general enabling legislation[5];



(b) Associations especially created and recognised as juristic persons in separate legislation[6];



(c) Association which comply with the common law requirements for the recognition of legal personality of juristic person. At common law, such juristic persons are known as universitates.


[12] I will briefly deal with the third category of juristic person. Herbstein & Van Winsen[7] argues as follows with regard to a universitas:


A universitas is a legal fiction, an aggregation of individuals forming a persona or entity having the capacity of acquiring rights and incurring obligations to as great an extent as a human being. The main characteristics of a universitas are the capacity to acquire certain right as apart from the rights of individuals forming it, and perpetual succession.’


[13] In the matter of Morrison v Standard Building Society[8]  Wessels, JA said the following:


In order to determine whether an association of individuals is a corporate body which can sue in its own name, the court has to consider the nature and objects of the association as well as its constitution and if these shows that it possess the characteristics of a corporation or a universitas then it can sue in its own name.’’


[14] In the present matter, the applicants’ affidavit is completely silent on the constitutional situation of the Technical Committee the source of the powers and duties does not appear of the Technical Committee do not appear from the affidavit; the only averment made as regards the second applicant's objects is that it was established to address "burning issues" affecting the !Khomanin Traditional Community. There is nothing on record to show that it has locus standi; whether it may or may not own property, its powers and authority, the power and authority of the !Khomanin Traditional Authority over it, (including perhaps the power to dissolve it) are left unknown. From the applicant’s affidavit it is not clear whether the Technical Committee is or is not a universitas. As I have said earlier the applicant must in its pleadings (in this case in the affidavit) plead its locus standi. This requirement was articulated as follows in the matter of SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle[9]


I consider it to be necessary for a plaintiff to make in his declaration the averments required, not only to show that he has locus standi, but also that the defendant has. No doubt this will be presumed when the parties are natural persons and there is nothing to indicate lack of legal capacity, but if there is a departure from this or a party is not prima facie qualified to litigate, the necessary authority to sue or to be sued must be disclosed. I do not think there can be any presumption that a voluntary association is a corporate body, and in my view grounds for citing it as a party must be disclosed.’


I conclude therefore that the applicants have failed to prove that the second applicant has the power to bring this application.


The first applicant


[15] I turn next to consider the position regarding the first applicant. The first applicant describes himself as follows. He says he is:


(a) major male person, previously a traditional councillor under the !Khomanin Traditional Authority;

(b) an aspiring Chief of the !Khomanin Traditional Authority, and


(c) a worthy custodian of the !Khomanin traditions and customs and fervent fighter for the preservation of the !Khomanin culture and Traditions.


[16] The first applicant further makes the averment that he brings the application on his own behalf in his capacity as an aspiring Chief of the !Khomanin Traditional Authority and also in his capacity as a bona fide member of the !Khomanin Traditional Community determined to protect its customs and traditions for future generations. The question that confronts me now is whether the mere fact that the first applicant is a member of the !Khomanin Traditional Community, confers on him the necessary legal interest to institute these proceedings.


[17] The designation of a chief or head of a traditional community is not exclusively a customary law issue. As I have stated earlier in this judgment the process of designating a traditional leader is also regulated by the Act. The word 'chief' is defined in s 1 of the Act as meaning 'the supreme traditional leader of a traditional community designated in accordance with s 4(1)(a) and recognised as such under s 6' of the Act. The following definition of 'head' is given in the same section: '''head'' in relation to a traditional community, means the supreme traditional leader of that traditional community designated in accordance with s 4(1)(a) or (b), as the case may be, and recognised as such under s 6. 'Designation' is defined as follows:


'designation' in relation to the institution of a chief or head of a traditional community, includes the election or hereditary succession to the office of a chief or head of a traditional community, and any other method of instituting a chief or head of a traditional community recognised under customary law'.


[18] Sections 4(1) and (2) of the Act provide that:


'(1) Subject to ss 5 and 6, members of a traditional community who are authorised thereto by the customary law of that community, may designate in accordance with that law

(a) one person from the royal family of that traditional community, who shall be instituted as the chief or head, as the case may be, of that traditional community; or


(b) if such community has no royal family, any member of that traditional community, who shall be instituted as head of that traditional community.


(2) The qualifications for designation and the tenure of, removal from and succession to the office of chief or head of a traditional community shall be regulated by the customary law of the traditional community in respect of which such chief or head of a traditional community is designated.' (Italicized and underlined for emphasis.)


[19] Section 5 deals with the procedure for the notification of the designation of a chief or head of a traditional authority. It specifically provides that if a traditional community intends to designate a chief or head of that traditional community the Chief's Council or the Traditional Council of that community, or if no Chief's Council or Traditional Council for that community exists, the members of that community who are authorised thereto by the customary law of that community, must apply on the prescribed form to the Minister for approval to make such designation. Section 6 on the other hand deals with substantive and procedural aspects of the recognition of a chief or head of the traditional community.


[20] One of the requirements for setting in motion the process of designating a chief or leader of a traditional community is that those members of the traditional community in question who are authorised thereto by the customary law of that community must apply to the Minister for approval to make the designation. The first applicant has not in his founding affidavit made the allegation that he is, in terms of the !Khomanin customary laws, authorised to nominate or set in motion the process of appointing a chief or leader of the !Khomanin traditional community. The absence of that allegation is my view fatal to the applicant.  Mr Rukoro who appeared on behalf of the applicants argued that in terms of the Constitution of the !Khomanin Traditional Authority every member of the !Khomanin Traditional community is eligible to be elected chief of that community. He then submitted that:


‘… any ‘aspiring chief’ can bring an application to compel the first respondent [i.e. the !Khomanin Traditional Authority] to convene a meeting for the purposes of electing a and at which meeting such aspiring member can then contest for election.’


[21] First, Herbstein & Van Winsen[10] point out that 'a pleading that states conclusions and opinions instead of material facts, or that draws a conclusion without alleging the material facts which, if proved, would warrant that conclusion, is defective'. In his founding affidavit the first applicant simply avers that he is an ‘aspiring Chief’ of the !Khomanin Traditional Authority, and that he is ‘a worthy custodian of the !Khomanin traditions and customs and a fervent fighter for the preservation of the !Khomanin culture and traditions’. These are conclusions drawn by the first applicant without him having stated the material facts on which the conclusions are based. The first applicant’s affidavit is to the extent that it fails so set out the material allegations on which the conclusion or opinion is based, defective. The second aspect which Mr Rukoro’s submission overlooks, is the fact that, it is not simply the factor of being a member of the !Khomanin traditional community or the fact that one is eligible to be elected as a chief that clothes one with the authority to set in motion the process of designating a chief for that traditional community, but the authorization by the customary laws of that traditional community and as I have said earlier on that allegation is absent from the first applicant’s affidavit. For the first applicant to succeed in establishing standing to compel the !Khomanin Traditional Community to hold a meeting he had to establish that he is authorised by the customary laws of that traditional community to set in motion the process of designating a chief.[11] I thus reach the conclusion that the first applicant too, has failed to demonstrate that he has the necessary locus standi to institute the application.


[22] In view of the conclusion at which I have arrived I find it unnecessary to deal with all the other arguments raised by the parties. The only issue which I must now determine is the question of costs. The issue of costs is a matter that is within the discretion of the court. Ordinarily costs should follow the result, unless there are circumstances that justify a departure from this rule. No such circumstances were demonstrated to exist here. In the result I make the following orders:


(a) The applicants in this application do not have the necessary locus standi to institute this application.


(b) The applicants’ application is accordingly struck from the roll.


(c) The applicants are order to, jointly  and severally the one paying  the other  to be absolved to pay the respondents’ cost the costs to include the costs of  one instructing  and one instructed counsel.



SFI Ueitele


Judge



APPEARANCES:



FIRST & SECOND APPLICANTS S Rukoro


Instructed By Petherbridge Law Chambers



FIRST, SECOND & FOURTH RESPONDENTS S Namandje

Instructed By Government Attorney



THIRD RESPONDENT No Appearance.


[1] Act No 25 of 2000.

[2] Celliers, Loots & Nel Herbstein & Van Winsen, The Civil Practice of the High Courts and the Supreme Court of South Africa 6th ed (Juta 2009) at 438.



[3] 2000 NR 1 (HC).

[4] Devenish G E, Govender K, Hulme D Administrative Law and Justice in South Africa., LexisNexis, 2001 at p 455

[5] Examples of these are companies, banks, close corporations and co-operatives.

[6] Examples of these are universities, state owned enterprises and public corporations like Air Namibia ,Nampower and the Namibia Broadcasting  Corporations.

[7] Supra at 175 .

[8] 1932 AD 229.

[9] 1955 (3) SA 541 (N) at 543.

[10] Supra footnote no. 2 at 566.

[11] Compare the case of Kahuure and Another in re Nguvauva v Minister of Regional and Local Government and Housing and Rural Development and Others 2013 (4) NR 932 (SC).


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