COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: A 44/2013
27 JULY 2015
the matter between:
citation: Ondonga Traditional Authority v Oukwanyama Traditional
Authority (A 44-2013)  NAHCMD 170 (27 July 2015)
18 November 2013
27 July 2015
Practice – Parties – Joinder – Necessary
parties – Application by a Traditional Authority established by
the Traditional Authorities Act 25 of 2000 – Applicant not
citing all parties who are necessary parties to the proceeding –
Court held that the non-joinder of those statutory bodies is fatal –
Court struck the application with costs.
application is struck with costs.
The Applicant in this matter seeks a declarator order to enforce an
agreement that was signed by the applicant and the respondent’s
erstwhile chief. The parties to this application are both statutory
bodies, ie Traditional Authorities, established in terms of the
Traditional Authority Act 25 of 2000. Their objects include the
promotion of peace and welfare amongst the community members, giving
support to the communal land policies of the Government and its
institutions as well as to supervise and ensure the observance of the
customary law of that community by its members.
The main dispute between the applicant and the respondent concerns
the validity of the agreement entered into between the King of the
applicant, King Immanuel Kauluma Elifas and the respondent’s
erstwhile King the late Mwetupunga Shelungu. It is alleged that the
applicant and the respondent, duly represented by authorized
traditional leaders, entered into a written agreement on 14 March
2004 at Oshakati termed a ‘BINDING AGREEMENT ENTERED INTO BY
ONDONGA AND OUKWANYAMA TRADITIONAL AUTHORITIES CONCERNING THE BORDER
DISPUTE BETWEEN THE TWO AUTHORITIES’ in terms of which the
parties agreed to regulate a border dispute between the two
traditional authorities to the extent that geographical borders had
been determined and each party had been allocated an area over which
to exercise its jurisdiction. The agreement was concluded with the
primary aim of resolving the ongoing dispute over communal border
lines between the applicant and the respondent which was likely to
cause instability within the communities.
Applicant’s version on the papers is that as a result of the
threatening instability, the agreement was entered into on behalf of
the communities by their authorized representatives after a careful
discussion and negotiations and a consultative process. Both
representatives voluntarily signed the agreement with the witnesses
and no form of duress or intimidation was exerted on any of the
signatories to the agreement. It is applicant’s case that the
respondent unlawfully repudiated its obligations under the said
agreement in that in a letter dated 14 February 2008 and 3 November
2008, the respondent’s Queen contest the validity of the
agreement on the ground that it is invalid on the grounds that
firstly, the representative on behalf of the respondent was
critically ill an frail and was duped into signing the agreement.
Accordingly, no prior negotiations or consultations were held with
its subjects and as such, he had no authority to alienate land that
belonged to the communities. A further bone of contention is that the
areas over which the applicant exercises authority is inhabited by
the respondent’s subjects.
It has become common cause between the parties that the respondent
denies the validity and enforceability of the said agreement and it
is on this basis that the applicant seeks an order for the agreement
to be declared valid and enforceable by this court.
As part of its opposition to the application, the respondent raises
several points in
The first point in
that the applicant has failed to join all necessary parties with a
direct and substantial interest in the outcome of the application.
The point of non-joinder is premised on the ground that that the
applicant is seeking an order to enforce the agreement which has the
effect, if enforced, of transferring large tracks of communal land to
the jurisdiction of the applicant. The respondent claims that the
land in question falls within the areas defined as communal areas,
and by virtue of section 17 of the Communal Land Reform Act 5 of
2002 the land in dispute is
vested in the State. In support of this point the respondent further
avers that, in terms of Article 100, read with Article 124 of the
Namibian Constitution, the State is the owner of land otherwise
lawfully owned. It is on this basis that the State has a direct and
substantial interest in the outcome of the application, and
accordingly, should have been joined to the application.
Another necessary party that ought to have been joined is the Council
of Traditional Leaders established in terms of the Traditional
Leaders Act 13 of 1997 with the primary function of advising the
President of the Republic of Namibia on the control and utilization
of communal land. Thus, the said Council has an obvious direct
and substantial interest in the application and its outcome and
consequently, the Council should have been joined to the application.
The respondent maintains the same basis for not joining the Communal
Land Boards whose powers, duties and functions are to exercise
statutory authority over communal land within the area for which each
board is established in accordance of the Communal Land Reform Act.
The relevant Communal Land Boards- in this instance, Communal Land
Boards of the Oshikoto Region, Ohangwena Region, and of the Kavango
Region - have all a direct and substantial interest in the outcome of
this application. In respect to the Uukwangali Traditional Authority,
the respondent asserts that the purported agreement sought to be
enforced in terms of this application applies to large tracks of land
which was donated to the Oukwanyama Traditional community by the
Uukwangali Traditional Authority and due to this historical
background, the Uukwangali Traditional Authority has a direct and
substantial interest in the application and its outcome.
The last leg of this point in limine is the non-joinder of the
relevant residents and farmers within the area of dispute who are
involved in various land-based activities, mainly livestock and crop
farming. Their rights to residence and their farming activities will
be affected by the enforcement of the purported agreement, and many
of them are subjects of the respondent and their practices and
observance of the Oukwanyama community’s cultural practices,
particularly those in relation to the land and land-based activities,
would be drastically affected. Accordingly, the non-joinder of all
these parties is fatal to the applicant’s application and falls
to be dismissed with costs.
The applicant, in reply, states that the point in limine raised is
spurious and bad in law since the agreement sought to be enforced
only creates rights and obligations between the parties to the
agreement. The applicant argues that the agreement has not created
obligations on either party to transfer communal land, let alone
large tracks of communal land. The applicant claims that, to the
contrary, it is simply traditional jurisdiction over certain areas by
the respective traditional authorities, not the transfer of any
communal land of the areas. The applicant therefore submits that this
contention is misplaced and unsustainable. The applicant further
argues that Communal Land Boards are appointed to perform the
functions conferred on a Board within an area for which each Board is
established in accordance with subsection (2) of the Act,
consequently the Communal Land Boards do not have a direct and
substantial interest in the declaratory order sought.
With regard to the interest of the several residents, the applicant
argues that it does not understand who the faceless several residents
are and what interest, if any, they may have in the relief sought by
way of declarator. The applicant contends that the issue of
non-joinder of the aforesaid parties, is without merit and should be
dismissed with costs.
The respondent’s second point raised in limine is the fact that
the present application was launched prematurely in that the nature
of the present dispute is one that should be referred to the Council
of Traditional Leaders for investigation in terms of s 13 of the
Council of Traditional Leaders Act and for the President of the
Republic of Namibia to be advised on the further conduct of the
dispute. Since the respondent has already requested that the matter
be referred to the said Council, and is awaiting the outcome of its
request, the launching of this application pre-empts the President
and the Council’s constitutional and statutory powers in
respect of the control and utilisation of communal land, and as such,
this application should be stayed pending the outcome of that
process. The applicant’s stance is that bearing the type of
relief sought, the Council does not have authority to issue a
declarator. All in all, the applicant takes the stand that there is
no bar in law that stops the parties from entering into agreements to
regulate peaceful co-existence. Absent of such prohibition, therefore
there is no basis in law for the respondent to contend that the
agreement is invalid.
that calls for determination by the court
This application was subjected to judicial case management procedures
in terms of the Rules of Court. As required by the Rules of Court,
the parties filed their proposed pre-trial order filed on 17
September 2013 and invited the court to hear the points in limine
together with the main application. The issues to be determined
by this court are formulated as follows:
Whether or not the Court should uphold the points in limine raised
by the respondent in its answering affidavit.
In the event that such points in limine are not upheld whether or
not the agreement attached to the applicant’s founding
affidavit as annexure “A” is valid and enforceable.’
What manifests itself from the above is that the court is requested
to determine the preliminary points before going into the merits of
the application. It thus becomes incumbent on this court to firstly
deal with the points in limine
raised by the parties, because a decision upholding the points in
limine would on its own be disposed the entire application.
law on non-joinder
It is trite law that when a person has an interest of such a nature
that he or she is likely to be prejudicially affected by any judgment
given in the action, it is essential that such person be joined
either as an applicant or as a respondent. The objection of
non-joinder may be raised where the point is taken that a party who
should be before court has not been joined or given notice of the
proceedings. The test is whether the party that is alleged to be a
necessary party for purposes of joinder has a legal interest in the
subject matter of the litigation, which may be affected prejudicially
by the judgment of the court in the proceedings concerned.
This test was applied in Kleynhans
v Chairperson of the Council for the Municipality of Walvis Bay and
where Damaseb JP at 447, para 32 said:
leading case on joinder in our jurisprudence is Amalgamated
Engineering Union v Minister of Labour 1949 (3) SA 637 (A). It
establishes that it is necessary to join as a party to litigation any
person who has a direct and substantial interest in any order which
the court might make in the litigation with which it is seized. If
the order which might be made would not be capable of being sustained
or carried into effect without prejudicing a party, that party was a
necessary party and should be joined except where it consents to its
exclusion from the litigation. Clearly, the ratio in Amalgamated
Engineering Union is that a party with a legal interest in the
subject matter of the litigation and whose rights might be
prejudicially affected by the judgment of the court, has a direct and
substantial interest in the matter and should be joined as a party.’
The approach set out in Amalgamated
Engineering Union and
judgments, has been endorsed by this court in Independence
Catering (Pty) Ltd and Others v Minister of Defence and Others,
where the court stated that:
is now our settled legal position that a direct and substantial
interest is an interest in the right which is the subject matter by
the litigant and not merely a pecuniary interest, . . . These
courts have adopted a paradigm shift towards the strict application
of this principle to an extent that where the need for joinder arises
they will ensure that interested parties are afforded an opportunity
to be heard. . . . ’
It is on the strength of these authorities above that it is incumbent
upon any court to ensure that all persons, with the requisite
interest in the subject matter of the dispute and whose rights may be
affected, are before the Court since it is for all intents and
purposes in line with the strict requirements of the rules of natural
justice, the audi
alteram partem rule.
The substantial interest factor attracts a lot of judicial importance
to an extent that the courts have assumed a right to raise it mero
where justice so demands. The
usual procedure is that if a plea of non-joinder is successful, the
court should stay the action until the necessary party has been
joined and will make an appropriate order as to costs.
the State have a direct and substantial interest in the outcome of
The applicant seeks to validate the agreement which has the effect
that territorial jurisdiction will be exercised by both the applicant
and the respondent. It is not in dispute that the area in question is
communal land which vests in the State in trust for the benefit of
the traditional communities residing in those areas.
The president has the power to redefine any communal area affected by
any change in declarations of communal areas in terms of s 16 of the
Communal Land Reform Act. An order declaring that certain areas fall
under the jurisdiction of another traditional authority might have
been in conflict with the declarations made by the president. As the
ultimate owner of all land, unless privately owned, the State has a
direct and substantial interest in the outcome of this application. I
therefore agree with the respondent that the State has a direct
interest in the present matter. The line ministry is a necessary
party to these proceedings and ought to have been joined.
the Council of Traditional leaders have a direct and substantial
interest in the outcome of this application?
In terms of s 3(f) of the Traditional Authorities Act 25 of 2000, the
applicant as a Traditional Authority must advise the Council of
Traditional Leaders in the performance of its functions as provided
under Article 102(5) of the Namibian Constitution, the Council of
Traditional Leaders Act 13 of 1997 or under any other law. Section 2
of the Council of Traditional Leaders Act 13 of 1997 vests the power
in the Council to advice the President on the control and utilization
of communal land and may for the purpose of performing its functions,
and with the approval of the Minister, conduct an investigation
regarding any matter pertaining to communal land.
The Council is further obliged to prepare a full report containing
its recommendations in regard to any matter investigated by it and
shall submit such report through the Minister to the President for
consideration. How else would the council perform its functions if it
is not privy to, firstly the agreement and the proceedings?
It is further evident that the dispute was supposed to be brought to
the attention of the council for investigations and recommendations.
This falls in favour of the respondent’s second point in limine
that the application was brought immaturely. It was therefore
necessary to join the council for it has both constitutional and
statutory obligations to fulfil with regard to communal land.
the Communal Land Boards have a direct and substantial interest in
the outcome of this application?
The respondent submits that the relevant boards that ought to be
joined are the Kavango Communal Land Board; The Oshikoto Communal
Land Board; The Ohangwena Communal Land Board. Section 20 of the
Traditional Authorities Act 25 of 2000 states that the primary power
to allocate or cancel any customary land right in respect of any
portion of land in the communal area of a traditional community vests
firstly in the Chief of that traditional community; or where the
Chief so determines, in the Traditional Authority of that traditional
community. Section 24 of the same Act subjects such allocation or
cancellation of a customary land right to the ratification by the
relevant board that should then register the customary land rights
and issue a certificate in terms of s 25 and s 27 of the Act. The
effect of the agreement would then also be affected because no
allocation of any customary land rights or cancellation thereof would
be valid without the ratification of the relevant board over which it
exercises jurisdiction. The Communal Land boards’ functions
would therefore be prejudicially affected by the judgment of this
the residents and the farmers in the area of dispute have a direct
and substantial interest in the outcome of this application?
It does not take a genius to understand and agree that the communal
land rights holders, be it in the form of customary land rights or
rights of leasehold as well as grazing rights will be affected by the
outcome of this application. None of these persons are before court
especially those that would have to fall under another traditional
authority should the said agreement be enforced.
As stated above, the duty to have all the necessary parties before
court is enshrined in our constitution under the right to be heard
and failure to observe such is fatal. It goes against one’s
right a fair hearing and most importantly access to justice. It will
be an unjust should I hold the agreement to be valid without having
an opportunity to hear all the necessary parties.
Based on the aforementioned reasons, I accordingly struck the
application with costs.
Sisa Namandje & Partners, Windhoek.
Tjombe-Elago Law Firm Inc, Windhoek.
Section 17 (1) of the Communal Land Reform Act, 5 of 2002 provide as
follows: “Subject to the provisions of this Act, all communal
land areas vest in the State in trust for the benefit of the
traditional communities residing in those areas and for the purpose
of promoting the economic and social development of the people of
Namibia, in particular the landless and those with insufficient
access to land who are not in formal employment or engaged in
non-agriculture business activities.”
Daniels H. 2002.Becks
Theory and Principles of Pleading in Civil Actions.
Durban: LexisNexis, p 22.
2014 (4) NR 1085 (HC) at 1093, para 24.
Independence Catering (Pty) Ltd and Others v Minister of Defence and
Others 2014 (4) NR 1085 (HC) at para (24) and (25).
Article 100, read with Art 124 of the Namibian Constitution.
Section 13 of the Council of Traditional Leaders Act.