The Council of Itereleng Village Community & Another v Felix Madi & 27 Others (A 201/2016) [2016] NAHCMD 114 (31 August 2018);

Group

Full judgment

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

 

CASE NO. A 201/2016

NOT REPORTABLE

DATE: 19 APRIL 2016

In the matter between:

THE COUNCIL OF ITIRELENG VILLAGE COMMUNITY                                  1st APPLICANT

(Comprising the members listed per annexure AMB1)

AUGUSTINUS BEBENG MODISA                                                                       2nd APPLICANT

and

FELIX MADI                                                                                                          1ST RESPONDENT

BERNHARD LANGMAN                                                                                    2ND RESPONDENT

GENOVEFA MOKALENG                                                                                  3RD RESPONDENT

EUPHROSINE MBUENDE                                                                                            4TH RESPONDENT

VICTUS EDUARD                                                                                               5TH RESPONDENT

REINHARD MORWE                                                                                           6TH RESPONDENT

CYNTHIA MADI                                                                                                    7TH RESPONDENT

HEDWIG TIBINYANE                                                                                          8TH RESPONDENT

MICHAEL KAPENG                                                                                             9TH RESPONDENT

LAZARUS SEBETWANE                                                                                10TH RESPONDENT

JASPER MADI                                                                                                   11TH RESPONDENT

CYPRIANUS POGISHO                                                                                   12TH RESPONDENT

MARIA THEKWANE                                                                                         13TH RESPONDENT

THEODOR TSHABANG MAKGONE                                                            14TH RESPONDENT

PIO MOSALA                                                                                                     15TH RESPONDENT

ANNA MOKALENG                                                                                          16TH RESPONDENT

BERNARD MOKALENG                                                                                 17TH RESPONDENT

AUGUSTINUS MOKALENG                                                                           18TH RESPONDENT

OSWALD TIBINYANE                                                                                     19TH RESPONDENT

ARNOLD MORWE                                                                                            20TH RESPONDENT

ALEXIUS UDIGENG                                                                                         21ST RESPONDENT

BERLINDIS UDIGENG                                                                                   22ND RESPONDENT

RILEU KENE                                                                                                    23RD RESPONDENT

JOSEPH ARNAT                                                                                              24TH RESPONDENT

INGRID MOKWENA                                                                                          25TH RESPONDENT

APPOLINIA TIBINYANE                                                                                  26TH RESPONDENT

HANS KEDIAMOGETSE MAKGONE                                                           27TH RESPONDENT

HUBERTHA BONTLEENG TIBINYANE                                                     28TH RESPONDENT

 

Neutral citation: The Council of Itireleng Village Community & Another v Felix Madi & 27 Others (A 201/2015) [2016] NAHCMD 114 (19 April 2016)

CORAM​:

ANGULA, DJP

Heard​: 8 April 2016

Delivered​: 19 April 2016

Flynote: Prescription-claim for a declaratory order or interdict susceptible to prescription. Locus standi - legal proceedings on behalf of a voluntary association with legal personality must be instituted in the name of the association and not in the name of the council of such association.

Summary:     The parties to these proceedings are members of the Tswana traditional community residing on a piece of land situated at Epukiro.  Epukiro is also referred to as Itireleng in Setswana.  Many years ago the Roman Catholic Church bought a farm as it wanted to take care of the community living in the vicinity of the farm by providing the community with amenities and facilities such as water etc.  Later on the Church and the community entered into a written lease agreement in terms of which the community was allowed to formally reside on the farm.  Subsequent thereto the lease was converted into a notarial deed of servitude of use and habitation.  During 1983 a constitution was drafted with the aim to organize and regulate the administration and affairs of the community.  When the Traditional Authorities Act, 2000 came into operation the community was recognized a traditional authority with the leaders appointed in terms of the Traditional Authorities Act.  It would appear that association established in terms of the constitution and the traditional authority established in terms of the Traditional Authorities Act operated in parallel.

 

During 2005 allegation of theft were made against the members of the council as a result of which the members were suspended pending the finalization of investigation.  An interim committee was appointed pending the outcome of the investigation.  After the investigation was completed in 2008, the suspended members of the council were reinstated however the member of the interim committee did not vacate their positions.  There is conflicting versions by the parties why the interim committee members did not vacate their positions.

 

The applicants allege that a sum of N$159 510.90 was unlawfully withdrawn from the association’s bank account on 25 November 2011 and paid into the bank accounts of some of the respondents.

 

The constitution of the association provides that a new council including the headman who serves as chairperson of the council must be elected after every three years.  A new council was elected on 4 July 2010 and after the expiry of the three years period a further new council was elected on 11 August 2013.

 

The applicants are seeking for number of declarators and interdicts all inter-related, the cumulative effect whereof is that the applicants are still the duly elected members of the council;  that the respondents be interdicted not purport to act either as elected members and/or as chairperson, and/or headman.  They are further inter alia asking for access to the hall belonging to the community and for payment of association’s money in the sum of N$159 510.90 allegedly misappropriated by the respondents.

 

The respondents have raised two points in limen firstly that the applicants claims have prescribed in that the applicants’ rights to claim whether for the money or declarators and interdicts arose three years before the present proceedings were served on the respondents; and secondly that the applicants lack locus standi.

 

Held that, generally, a debt arises if the applicant/plaintiff wants to enforce a right to take legal steps in order to undo a certain factual and legal reality created by the actions of the defendant which created that legal reality to the prejudice of the potential applicant/plaintiff.

 

Held that the right to claim for a declarator or interdict is a personal right and fall in the wide meaning of the word ‘debts’ as envisaged by the Prescription Act and right that such is susceptible to extinctive prescription.

 

Held that in this matter the debt arose when the respondents became aware or when they are reasonably expected to have become aware of their right to apply for the declarators or interdicts to undo the factual and legal reality created by the actions of the respondents and that such right is susceptible to prescription.

 

Held that the applicants’ right to claim for the payment of the sum of N$159 510.90 arose on 25 November 2011 when the said sum was allegedly misappropriated by some of the respondents.  The proceedings to claim payment of the said amount was served on 20 February 2015 upon the respondents which is more than three years after the claim arose and the claim has therefore prescribed;

 

Held that the applicants’ right to claim for the declarator sought in prayer 1 arose at the latest 4 July 2010 when the first respondent was elected as chairperson of the association which is more than three years before the proceedings in this matter were served on the respondents on 20 February 2015 and the claim has therefore prescribed;

 

Held that the applicants’ right to claim for the declarator sought in prayer 2 arose at the latest on 4 July 2010 when the community elected new council, which is more than three years when the proceedings in this matter were served on the respondents on 20 February 2015 the right to claim has therefore prescribed.

 

Held that the applicants’ rights to claim for interdicts sought in prayers 3, 4 and 5 arose at the latest on 4 July 2010 when the elections of a new council and a chairperson took place which is more than three years when the proceedings in this matter were served on the respondents on 20 February 2015, the right to claim has therefore prescribed.

 

Held that the applicants’ right to claim for a declarator sought in prayer 6 arose on 31 October 2009 when the second applicant received a letter dismissing him as the chairperson of the council, which is more than three years when the proceedings in this matter were served on the respondents

 

Held that the claims in prayers7, 8 and 10 have not prescribed.

 

Held that the council does not have the legal standing or right to institute legal proceedings in its own name. The council represents the association and as an agent it cannot institute legal proceedings in its own name.  The legal proceedings should have been instituted in the name of the association.

 

Held that the purported resolution of the council passed on 20 November 2011 comprising of the individuals listed in annexure ABM1 upon which reliance is placed by the applicants for authority to bring this application is not a valid resolution for the reason that such individuals were no longer elected members of the council at the time the purported resolution was adopted;  that an elected council was in office at the time the alleged resolution was adopted.  Accordingly the applicants lack the locus standi to bring this application for want of validity of the said resolution.

 

Held that the second applicant can only act as headman appointed in terms of the Traditional Authorities Act.  The Act does not give the power to such a headman to bring legal proceedings in his own name, acting as a councillor.  Furthermore that a traditional authority does not have the power over the affairs of the association.  It follows therefore that even in that alleged capacity the second applicant lacks locus standi to bring this application.

 

Held that the second applicant has failed to make out a case that he has the locus standi to bring the application in his capacity as member of the association. 

ORDER

 

1.    The two points in limine raised by the respondents are upheld accordingly the matter is struck from the roll.

2.    The individuals listed in annexure ABM 1 to the founding affidavit and the second applicant are ordered to pay the respondents costs jointly and severally the one paying the other to be absolved, such costs to include the costs of one instructing counsel and one instructed counsel. 

 

JUDGMENT

 

ANGULA, DJP:

Background

[1] This is an application by the applicants seeking for an order in the following terms:

 

1. An order declaring that only a senior or traditional councillor appointed or elected as such in terms of the provisions of section 10 of the Traditional Authorities Act, Act No 25 of 2000 may act as headman on the community of Itireleng and that person, shall by virtue on that incumbency be the Chairperson on the 1st applicant;

 

2. An order declaring that the persons listed in annexure ABM 1 are currently the duly elected members of the Council of Itireleng Village Community (the 1st applicant);

 

3. An order interdicting and restraining the respondents or any one of them from acting or purporting to act as a headman of the Itireleng Village Community in contravention of the provisions of section 10 of the Traditional Authorities Act, Act No 25 of 2000;

 

4. An order interdicting and restraining the respondents or any one of them from acting or purporting to act as the Chairperson of the Council of the Itireleng Village Community(1st applicant) in contravention of the provisions of the constitution of the town community of Itireleng;

 

5. An order interdicting and restraining the respondents or any one of them from acting or purporting to act as a duly elected member of the Council of Itireleng Village Community (1st applicant) in contravention of the provisions of the constitution of the town community of Itireleng;

 

6. An order declaring that the decision taken by the 14th respondent on 31st of October 2009 was null and void;

 

7. Ordering the Respondents to forthwith restore ante omnia the 2nd applicant’s possession and control of the keys of the community hall at Epukiro;

 

8. Ordering the Respondents to forthwith restore ante omnia the 2nd applicant’s peaceful, undisturbed, unhindered access, occupation and control of the community hall at Epukiro;

 

9. Ordering 1st, 2nd, 3rd, 6th, 11th, 12th, 18th, and the 26th respondents to reimburse the 1st applicant within 30 days from the date of this court’s order an amount of N$159 510,. 90 that they jointly and or individually, misappropriated from the funds of the Itireleng Village Community;

 

10. Ordering the Respondents to re-imburse the 1st applicant within 30 days from date of this court’s order the full amount of money including interest if any that they jointly, collectively and or individually received from the sale of 45 cattle that they sold or was sold on their behalf or at their behests at an auction that took place on 27th November 2014 at Karoo Osche in Gobabis;

 

11. Granting the applicants such further and/or alternative relief as the Honourable Court may deem fit; and

 

12. Granting a cost order against any of the respondents that will oppose this application.”

 

[2] This is one of many applications between the parties concerning the on-going feud between the parties dating back to about 2005.  As can be deduced from the varying reliefs quoted above, that the dispute between the parties involves many issues such as the question which body is or persons are the lawful leader(s) of the Itireleng Village Community (“the community”) residing at and around Epukiro area;  the restoration of a community hall at Epukiro allegedly spoliated from the applicants by the respondents;  and a claim for re-imbursement of a sum of money allegedly misappropriated by the respondents. By agreement between the parties, this court has been asked not to deal with the merits but to first decide on the two points in limine raised on behalf of the respondents namely whether some of the applicants’ claims or rights of action have or have not prescribed and whether the applicants have the locus standi to bring this application.

 

Point in limine on prescription

 

Arguments on behalf of the respondents

 

[3] Mr Barnard who appeared for the respondents submits that the applicants’ claims for the reliefs sought in prayers 1 to 6 and prayer 9 have prescribed;  that each of these claims is by its nature susceptible to prescription in that each of these claims are either seeking for a declarator of rights, a claims for an interdict and a claim for a payment of an amount of money.  In support of his argument counsel refers the court to the judgement in the matter of Ongopolo v Uris Safari Lodge[1] where Damaseb JP had an opportunity to consider and summarised the legal principles emanating from case law governing prescriptions prior to 1990, thus prior to Namibia’s independence as regards to the meaning of and proper scope of the term or meaning of the words “a debt” in the in section 10 (1) of the Prescription Act, (“the Act”).  The learned judge concluded at paragraphs [39] and [40] as follows:

 

[39] The following principles can be distilled from an examination of the case law prior to 1990 as regards the meaning and proper scope of 'a debt' arising under s 10 of the Prescription Act —

(a)        the word 'debt' has a wide and general meaning and includes an obligation to do something or to refrain from doing something;

(b)        at the core of a 'debt' is a right and a corresponding obligation;

(c)        the concept of 'debt' has a proprietary meaning;

(d)        a debt does not only exist when the debtor is required to do something, as such a construction is too limiting;

(e)        the exercise of a right may call for no action on the part of the 'debtor' but merely to submit himself or herself to the exercise of the right;

(f)        a debt assumes both a passive and active meaning.

[40] The authorities further establish that by the actions of the defendant which created that legal reality to the prejudice of the potential a debt arises if the plaintiff wants to enforce a right to take legal steps in order to undo a certain factual and legal reality created plaintiff.’ (my underlining)

 

Arguments on behalf of the applicants.

 

[4] Mr Chimbwana who appeared for the respondents, concedes in his heads of argument that the claim for the payment of the sum of money in prayer 9 has prescribed.  However with respect to the remainder of the prayers, counsel submits that the declaratory sought in prayers 1, 2 and 6 of the Notice of Motion are not debts as they do not encompassed a right to received and a corresponding right to give.  He submits further that similarly the reliefs sought in prayers 3, 4, and 5 are interdicts as opposed to declaratory orders and therefore not susceptible to prescription.

 

[5] Counsel points out that the respondents’ case places reliance on the Ongopolo case in which matter the court relied on the judgements in the matters of Barnett and Others v Minister of Land Affairs and Other,[2] Radebe v Government of the Republic of South Africa and Others[3], Evins v Shield Insurance Co[4] and Leketi v Tladi N.O and Others[5] and in declining to uphold an exception that a claim for the recovery of a property fraudulently acquired is not a debt.  And that the court in the Ongopolo matter decided not to follow the Staegemann vs Langenhoven and Others [6] as the court found the reasoning in the Staegemann unpersuasive.  In this context counsel points out that the South African Supreme Court of Appeal has recently had the opportunity in the matter of ABSA Bank Limited v Keet[7] to consider the court’s reasoning in the Staegmann case against its previous judgments in the matters of Leketi, Barnett and Evins above.  That the Supreme Court of Appeal expressed itself on the matter as follows:

 

(6) The court a quo upheld the special plea with costs.  It did so on the basis of its finding that Staegemann, in which it was held that a vindicatory claim being a claim to ownership in a thing and not a claim for payment of a debt, does not prescribe after three years, was wrongly decided.  In upholding the plea it followed cases such as Evins v Shield Insurance Co Ltd; Barnett v Minister of Land Affairs; Grobler v Oosthuizen 2015 (4) SA p 477 and Leketi v Tladi NO.  (More on these cases will be said later in the judgment).  It reasoned that if Staegemann were correct, 'the Bank could withhold its demand for the tractor for another decade or even longer, and then demand return of the vehicle so that it could calculate its damages'.  It went on to refer to a recent decision of this court in Bester v Schmidt Bou Ontwikkelings CC, in which the correctness of Barnett and the decisions that followed it were doubted, and in which this court found the reasoning in Staegemann attractive and quite convincing.  This statement did not persuade the court a quo to adopt the reasoning in Staegemann.

 

(8) The recent decision of Staegemann on the period of extinctive prescription applicable to the vindicatory claim departs from the earlier decision in what is now the Gauteng Local Division in Evins, which received this court's approval in Barnett.  That decision was in turn followed by this court in Grobler and Leketi.  This court in Bester doubted the correctness of all three of these decisions of this court and expressed the view that a day would arise when this court would have an opportunity to reconsider this vexing legal question.  This is that day.

 

(26) I am aware that we are differing from a view that has been expressed in three judgments of this court, albeit in my view that none of those decisions was dependent upon the correctness of that view for the ultimate result.  However, to the extent that this view could be seen as the ratio decidendi of those decisions, I would hold that it was incorrect.  I am aware of the restricted basis upon which this court departs from its earlier decisions, but am of the view that this is one of those rare cases in which it is appropriate to do so.  First, the decision (Barnett) is of reasonably recent origin so it cannot be said that people have organised their affairs on the basis that it was correct. Second, the author of the decision has indicated that it should be reviewed by this court.  Third, the perpetuation of that view gives rise to absurdity in construction of an important statute and would cause uncertainty in a multitude of relationships.

 

(27) In the circumstances, the court a quo erred in upholding the special plea on the basis of its finding that a claim for delivery of a tractor was a 'debt' that becomes prescribed after three years by virtue of the provisions of s 10 of the Prescription Act.’

 

[6] Mr Chimbwana then submits that the basis upon which the court in Ongopolo matter found the judgment in the Staegemann matter unpersuasive has as result of the decision in the ABSA matter fallen away.  Counsel therefore submits that the declarator sought in prayers 1, 2 and 6 of the Notice of Motion would never amount to a debt as it does not encompass a right to receive and corresponding right to give.

 

[7] The issue for consideration is whether a party’s right to apply for a declarator or interdict is a debt within the meaning of the section 10 of the Prescription Act and whether such debt is susceptible to prescription.

 

[8] In the Ongopolo matter the court was considering an exception to the defendant’s special plea of prescription that a claim for the return of property fraudulently required is not a debt as contemplated in the Prescription Act;  and that even if it were a debt, prescription would be interrupted as the unlawful possession of a farm is a continuous wrong.  With respect to the first point the court held that a debt arises if the plaintiff wants to enforce a right to take legal steps in order to undo a certain factual and legal reality created by the actions of the defendant which created that legal reality to the prejudice of the potential plaintiff.  The court rejects the continuous wrong point, and held that the alleged fraud was an act of deceit which resulted in a single act of transfer and registration of the property.  It was that single act which constituted the cause of action, and did not amount to a continuing wrong.

 

[9] The way I understand the ABSA judgment is that the court dealt specifically with the right pertaining to a vindicatory claim, a claim for delivery of a thing (a tractor in that case).  The court held that such claim is not a debt therefore it is not susceptible to prescription after three years.  The reasoning in the ABSA matter was followed by Schimming-Chase AJ in the matter of Tjamuaha v Master of the High Court [8] where the court held that a claim under rei vindicatio is not a debt.  The court further pointed out that the Ongopolo judgment was distinguishable from the Tjamauaha matter in that it related to an exception to a special pleas of prescription and accordingly not binding on the court.

 

[10] In both the ABSA and Tjamauaha matters the court pointed out that the solution to the problem of prescription is to be found in the basic distinction in our law between a real right (a relationship between a person and a thing) and a personal right (a relationship between two persons).  The court in the ABSA matter further pointed out (at 481 F) that if a right can only be enforced against a determined individual or a class of individuals, then it is a personal right.  From the principles summarised by the court in the Ongopolo it appears that the word ‘debts’ includes an obligation to do something or to refrain from doing something and particularly by the court at paragraph 40 where the court stated that a debt arises if the plaintiff wants to enforce a right to take legal steps in order to undo a certain factual and legal reality created by the actions of the defendant which created that legal reality to the prejudice of the potential plaintiff.  It is on this principles that the issues in this matter are to be decided.

 

[11] The question whether a right to apply for a declaratory order is susceptible to prescription was considered by the court in the matter of Duet and Magnum Financial Services CC (in Liquidation) v Koster[9]; which I consider to be persuasive.  It concerned a claim by the liquidator to have certain dispositions made by the Close Corporation impeached in terms of the provisions of the Insolvency Act.  The claims were successfully met with a special plea of prescription in that the alleged dispositions were made three years before the summons was served.  The court held, inter alia, that the relevant sections of the Insolvency Act gave the right to the liquidator to have the person declared to be a debtor of the insolvent estate and that its complement was a ‘debt’ for the purpose of prescription because the person concerned was liable to have such declaration made;  that prescription would begin to run not later than the date on which the liquidator was appointed.  The special plea of prescription was thus upheld.

 

[12] What can be deduced from the foregoing case laws, for the purpose of prescription, is that a debt arises when the person acquires a right or when he ought reasonably to have been aware of his right to take legal action to enforce that right.  It follows therefore in my view that the right to apply for a declaratory or an interdict is a personal right and falls in the wide meaning of the word ‘debts’ as envisaged by the Prescription Act and that such right is susceptible to extinctive prescription.

 

Application of the legal principles to the facts

 

[13] I now proceed to apply the above principles to the facts of this matter in order to determine whether the reliefs sought by the applicants have indeed become prescribed.  It is trite law that the date on which the cause of action arose and the date on which legal proceedings are served upon the respondent or defendant are determinant points to calculate whether prescription have taken place or not.  It is common cause that the application papers in this matter were served on the respondents on 20 February 2015.  In order to determine when the respective rights to the reliefs claimed have become prescribed or not, it is necessary to consider each relief claimed.

 

Prayer 9

 

[14] I have already stated that in respect of the relief claimed in prayer 9, counsel for the applicants has conceded that that claim has prescribed.  I think the point has been rightly conceded because the claim for the payment of money in the sum of N$159 510.90 is a claim for a debt in the traditional sense which is susceptible to prescription.  According to the applicants this debt arose on 25 November 2011 when the respondents allegedly unlawfully sold a number of cattle belonging to the community and the proceeds from such sale were subsequently deposited in the personal bank accounts of eight of the respondents.  The claim thus arose more than three years before the service of the application papers on the respondents.  I therefore hold that the applicants’ claim in this respect has prescribed.

 

Prayer 1

 

[15] With this prayer the applicants are seeking for a declarator to the effect that only a senior or traditional councillor appointed in terms of the Traditional Authorities Act, No 25 of 2000, may act as the headman of the community of Itireleng and that such person shall by virtue of his incumbency be the chairperson of the council of community.  I have already stated that a right to apply for declaratory order is susceptible to prescription.  The issue here is that currently the first respondent is the chairperson of the council of the community.  The applicants’ case is that the first respondent should not be in that position but the right person who should occupy that position is Mr. Augustinus Modisa, the main deponent to the applicants’ founding affidavit.  According to deponent Mr Modisa, he was appointed as headman in 2004 to represent the chief in the village of Itireleng;  that he became the chairperson of the council by operation of the provisions of the constitution of the association of the community.  He alleges further that the constitution provides that the headman so appointed automatically becomes the chairperson of the council.  He says that during 2005 allegations of theft were made against the members of the council; that during December 2005 a meeting of the community resolved that the members of the council should be suspended pending the outcome of the investigations of alleged wrong-doings levelled against them.  It was further resolved at that meeting that an interim committee under the chairmanship of deponent Mr Modisa be appointed.  On 5 February 2007 Mr Modisa was suspended by the chief as chairperson of the interim committee but was again reinstated on 22 November 2008 as chairperson together with other members of the council.  He argues thus that as a result of his and other members of the council’s re-instatement, the temporary appointment of the respondents came to an end.  However, according to deponent Mr Modisa, the members of the interim council refused to vacate their positions.  The respondents’ version on this point is that the chief wanted to reinstate the former members of the council but the community objected to the reinstatement of the former members.  A new council was elected on 4 July 2010 which remained in office for three years in accordance with the provisions of the constitution.  Thereafter a further new council was elected on 11 August 2013;  that the second respondent was elected as headman on 11 August 2013.  The applicants allege that those elections were invalid.

 

[16] The applicants’ right to apply for the declaratory order sought in this prayer arose on 4 July 2010 when the first respondent was elected as chairperson of the association.  It was on 4 July 2010 through the elections that the respondents created a factual and legal reality to the alleged prejudice of the applicants.  The applicants allege that those elections were invalid.  The applicants’ right to enforce their right to undo the action by the respondents arose then.  They should have there and then applied to court to have the elections of the first respondent as chairperson of the association declared invalid.  These proceedings were served on the respondents on 20 February 2015 which is more than three years calculated from 4 July 2010 when the right to claim for a declaratory order arose.  That right to claim has prescribed.

 

Prayer 2

 

[17] With this prayer the applicants are seeking for an order that the persons listed in annexure AMB 1 to the founding affidavit are the currently duly elected members of the council of the Itireleng Village Community.  The facts put forward by deponent Mr Modisa in support of this claim are that the persons in the said annexure were elected in 2004;  that such persons were suspended in 2005 but re-instated in November 2008.  However according the respondents Chief Kgosiemang wanted to reinstate the former members but the community member refuse or objected with the result that the interim council members remained in office.  It is common cause that an election was held 4 July 2010. A further election was held on 13 August 2013 three years after the previous election in accordance with the provisions of the constitution where the current members of the council were elected.  Like with the order sought in prayer 1 above, the respondents through their actions created a factual and legal reality to the prejudice of the applicants on 4 July 2010 when the election was held.  Accordingly the applicants’ right to bring an application for a declaratory order arose on 4 July 2010 which is more than three years before the application papers were served on the respondents on 20 February 2015.  The applicants’ right to apply for a declaratory order has prescribed.

 

Prayers 6

 

[18] With this prayer the applicants are seeking for an order that the decision taken by the fourteenth respondents on 31 October 2009 be declared null and void.  In support of this prayer the deponent Mr Modisa says that on 31 October 2009 whilst he was still a senior traditional and chairperson of the first applicant, he and other members of the council received letters from the fourteen respondent terminating their incumbencies and membership of the first applicant.  These allegations are not disputed by the respondents but they point out that the right of the second applicant and any person listed in annexure AMB1 to the founding affidavit to apply for a declarator has long prescribed.  Based on the legal principles outlined above the respondent are correct in their stance. By 31 October 2009 the applicants knew that the respondents through their actions had created a factual and legal reality to the alleged prejudice of the applicants.  The applicants’ claim for re-instatement arose on 31 October 2009 more than three years before the service of the application papers in this matter upon the respondents on 20 February 2015.  The applicants claim for re-instatement has thus prescribed.

 

Prayers 3,4 and 5

 

[19] With these prayers the applicants are seeking for orders interdicting and restraining the respondents or any one of them from acting as a headman of the Itireleng Village Community in contravention of the provisions of section 10 of the Traditional Authorities Act and of the provisions of the constitution of the Itireleng Village Community;  and for an order restraining any one of the respondents from acting as the chairperson of the Council of Itireleng Village community in contravention of the provisions of the constitution of the town community of Itireleng.  According to the second applicant he was reinstated in his previous position as senior traditional councillor by the chief of the Tswanas at a meeting held on 22 November 2008;  that the members of the interim council refused to vacate their positions.  In countering this claim the respondents state that the second applicant is mistaken when he alleges that he became a member of the council of the association by virtue of him having been appointed as senior traditional counsellor.  The respondents point out that the second applicant was elected in March 2005;  that the headman of the association must be elected in terms of the provisions of the constitution.  According to the respondents when chief Kgosiemang wanted to reinstate the former members of the council, the members of the association refused that is why the interim members remained in charge until 4 July 2010 when new members of the council including a chairperson were elected.  Counsel for the applicants submits with regard to prayers 3, 4 and 5 that these prayers are interdicts as opposed to declaratory orders;  that it is prudent to emphasize that the issue has at its core, the question of who can represent the community of Itireleng.  Finally that the unlawful elections held were unlawful and as such are a continuing wrong.  I do not find any merit in this argument.  As has been pointed out earlier in this judgement the word debt has a wide meaning and it includes an obligation to do something or to refrain from doing something.  It includes the obligation or a right on the applicant to apply for an interdict.  The actions of the respondents complained of constitutes a single act of election at which the respondents were elected on 4 July 2010 or when they allegedly refused to vacate office.  It was at that point that the applicants knew that the respondents through their actions had created a factual and legal reality to the alleged prejudice of the applicants.  The applicants’ right to apply for the interdict arose on 4 July 2010 or shortly thereafter which is more than three years before the application papers in this matter were served upon the respondents on 20 February 2015.  The applicants’ rights to claims for interdicts in this regards have prescribed.

 

Prayers 7, 8 and 10’

 

The claims under the above named prayers have not prescribed but the enforcement thereof is dependant on whether the applicants have the locus standi.

 

Point in limine: lack of locus standi

 

[20] I now proceed to consider the second point in limine raised on behalf of the respondents namely the lack of standing or legal capacity by the applicants to bring this application.  In this respect counsel for the respondents points out that it is alleged in the founding affidavit that the applicants listed in annexure ABM1 to the founding affidavit bring this application as members of the council on the “town community of Itireleng” elected in terms of the constitution.  In the joint case management report the parties agreed the Itireleng Village Community is a voluntary association with legal personality distinct from its members with powers to own property and has perpetual existence.  Counsel for the applicants points out that in determining the locus standi of the first applicant (the council), regard should be had to the constitution in particular the duties and authority of the council as set out in the constitution. Counsel points out that the constitution provides, inter alia, that the duties and authority of council shall be “authority giving and authority having body”; that further more according to the definition clause of the constitution “Council Itireleng” means the Town Community of the Community of Epukiro”. Counsel therefore submits that with words ‘authority giving and authority having body’ the council is given authority by the constitution to act in its own right and on behalf of the town community of Itireleng and thus have the authority to sue in its own name.

 

[21] I do not agree with counsel’s foregoing argument.  In my view once it is accepted that the association is a legal person so established by its constitution then it follows as a matter of law that that legal person is the only person in whose name legal proceedings should be instituted.  The applicants do not deny that the association is legal person.  I do not think they have a basis to dispute that fact.  The constitution itself does not state that the association has the power to sue or be sued nor does it state that it is the council who has the power to do so.  It has been held that is not necessary that a constitution should contain an express provision enabling it to sue or be sued.  It has further been held that if the constitution is not clear, then the court can have regard to the nature, the objects and activities of the association to determine whether the association is a universitas.  The preamble to the constitution provides that the constitution was adopted so as to protect and promote the interests of the community of Itireleng;  to utilize the town land made available;  and to care for the need of the community.  The members of the association/community are defined to mean the persons who in terms of the constitution qualify to permanently reside in the town.  The constitution further provides how the affairs of the association are to be managed.  It provides for the election of office-bears and their duties.  The constitution provides further for the election for the members on the council and further set out the powers and duties of the council.  Finally the constitution stipulates that the constitution can only be amended by the-third majority of members of community.  The reading of the constitution leaves me with no doubt that the intention of the founders of the constitution was to establish a universitas, a juristic person.  With regard to the activities undertaken by the association, it appears from the papers before me that during March 1988, the association entered into a lease agreement with the Roman Catholic Church in respect the farm on which members of the community resides.  The lease agreement was signed by one Gabriel Motsaang ‘for the Town Community of Epukiro’.  During July 2003 a Notarial Deed of Servitude of Usus and Habitatio was executed on behalf of the Roman Catholic Church and the association and was subsequently registered in the Deeds Office.  In last transactions the association was represented by one Bernhard Langman ‘in his capacity as Chairman and duly authorised representative of the Village Community of Itireleng’.  It’s clear that those transactions were concluded in the name of the association represented by persons who were authorised to act on behalf of the association.  It is important to note that the transactions were not entered into with the council of the association.  This demonstrates to me that the association is a juristic person capable of entering into agreements and thereby incurring rights and obligations in its own name.

 

[22] It follows therefore that the argument on behalf of the applicants that the council has the right in terms of the constitution to act in its own name cannot be sustained.  At best the members of the council can represent the association when the association enters into transactions in its own name.  The council is like a board of directors of a company whose members or the managing director acts on behalf the company when the company acts or enters into transactions in its name.  In sum, the council does not have the legal standing or right to institute legal proceedings in its own name.  The council represents the association and as an agent it cannot institute legal proceedings in its own name.[10]  The legal proceedings in this matter should have been instituted in the name of the association.

 

[23] The first applicant locus standi is further challenged by the respondents that resolution of the council passed on 20 November 2011 comprising of the individuals listed in annexure ABM1 upon which reliance is placed by the applicants for authority to bring this application, such individuals were no longer elected members of the council.  The constitution of the association stipulates that persons constituting the council are elected every three years. Counsel for the respondents’ points out that the council made up of individuals in annexure ABM1 was elected in 2004.  It is common cause that the council consisting of individuals in annexure ABM1 was suspended and an interim committee was elected; that the fourteenth respondent was elected as chairperson in 2006.  During November 2008 the late Chief Kgosimang attempted to reinstate the individuals in annexure ABM1 as council members but the community objected with the result that the interim committee continued to manage the affairs of the association.  On 4 July 2010 a new council was elected.  Three years thereafter on 11 August 2013 another election was held when the current council was elected.  The applicants do not deny that those elections took place instead they allege that the elections were invalid.  As pointed out earlier the applicants’ version on this point is that when the members of the council was suspended the community resolved that the interim committee would be temporary.  After the investigation had been completed the members of the community resolved that the council members who had been suspended should be reinstated however the members of interim committee refused to vacate their positions.  However according the respondents Chief Kgosiemang wanted to reinstate the former members but the community member refused or objected with the result that the interim council members remained in office.  It is common cause that an election was held 4 July 2010.  The applicants thus submit that they were entitled to be reinstated and serve their full three year term but because of the respondents’ refusal to relinquish the positions the subsequent elections in 2010 and 2013 were invalid or a nullity ab initio.  The further reason why it is alleged that the elections were invalid is that they were not held in accordance with the terms of the constitution.

 

[24] Applying the well know Plascon–Evans rule used to resolve a conflict of facts in motion proceeding namely that conflict should be resolved on the admitted facts and the facts deposed to on behalf of the respondents.  The facts set by the respondent are to be accepted unless the court considers them to be far-fetched or clearly untenable that the court can safely reject them on papers.[11] I found the respondents’ version, objectively viewed, more credible that it was the members of the community who refuse that they remain in office.  This is consistent with the fact that some of respondents were again re-elected at the two subsequent elections.  If their being in office was against the will of the members of the community they would not have been re-elected.

 

[25] Regarding the applicants’ allegation that the elections were invalid because they were not conducted in terms of the constitution.  Unfortunately the second applicant did not elaborate on this allegation instead he took issue with the election of a headman who shall be the chairperson of the association.  The procedure for election of the council members is set out in the constitution and procedure for the election in 2010 is fully described out in the answering affidavit.  According to the deponent to the answering affidavit the first meeting was held on 20 June 2010 at which meeting it was decided that new council members would be elected;  that 4 July 2010 was set as for nomination and date for the election.  A further meeting was held on 26 June 2010 at which the election was again discussed and at which a chairperson of the election was appointed.  The minutes of both these meeting are attached to the answering affidavit.  The election took place on 4 July 2010. According to the respondents the last election took place on 11 August 2013 at which the current members of the council were elected.  I thus accept the respondents’ version that valid elections were held.  The applicants’ bare denial is rejected.  In the light on the conclusion I have arrived at, it follows thus in my judgment that the purported resolution of the council passed on 20 November 2011 comprising of the individuals listed in annexure ABM1 upon which reliance is placed by applicants for authority to bring this application is not valid for the reason that such individuals were no longer elected members of the council at the time the purported resolution was adopted an elected council was in office.  The applicants thus lack the locus standi to bring this application for want of validity of the said resolution.

 

[26] The next point in limine is that the second applicant lacks locus standi to bring this application.  The second applicant alleges that he brings this application relying on two distinct grounds.  The first ground is that he brings this application in his official capacity as senior traditional councillor of the Batswana ba Namibia Traditional Authority.  In my view the second applicant lacks the locus standi to institute legal proceedings on behalf of the traditional authority.  The traditional authority is a legal person created by its establishment Act.  It is the traditional authority which has the locus standi to institute legal proceedings and not the councillor.  The powers of the traditional authority are set out in its enabling statute.  In any event the traditional authority has no power to interfere in or to regulate the affairs of a private body such as the association.  As was pointed out by the court in the matter of Dowles Manor Properties Limited v Bank of Namibia 2005 NR (HC) at 68 B-C a creature of statute, such as the traditional authority, is only authorised to exercise those powers and functions accorded to it in its empowering statute, and that it can only do so through the bodies and officials created for that purpose by the statute (see Abrahamse v Connock's Pension Fund 1963 (2) SA 76 (W) at 78 - 80), and that the repositories of public power can exercise no power and perform no function beyond that conferred on them by law.  (See Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at 400, para [58].)

 

[27] The second applicant alleges that he became chairperson of the association automatically by virtue of his appointment as headman of the traditional authority.  That would be contrary to the provisions of the constitution because clause two of the constitution provides inter alia that at the occasion of the election of the members of the council, a headman will also be elected.  The second applicant is not a member of the current council.  I have already found that the current members of the council were validly elected.  It follows thus for that reason the second applicant cannot be declared to be the chairperson of the council.  The second applicant further alleges that he brings this application in his capacity as headman on the community.  The a senior traditional counsellor is appointed in terms of the Traditional Authorities Act whereas a headman of the association, as pointed out earlier, is elected together with other members of council of the association.  It would appear to me that the position of a headman in issue here are two different positions.  The second applicant can only act as headman appointed in terms of the Traditional Authorities Act.  The Act does not give the power to such a headman to bring legal proceedings in his own name, acting as a councillor.  Furthermore, as pointed out earlier, the traditional authority does not have the power over the affairs of the association.  It follows therefore that even in that alleged capacity the second applicant lacks locus standi.

 

[28] Finally the second applicant alleges that he brings the application in his capacity as a member of the association.  Unlike with the previous grounds upon which the second applicant is claiming locus standi the second applicant does not put facts before court in support of his allegation.  In prayers 7 and 8 the second applicant is asking that the possession and access of the community hall be restore to him.  In support of these prayers the second applicant states in his founding affidavit that he has been deprived by the respondents of the right to hold meetings in the hall which was built for the benefit of the community and from where the headman conducts his official functions; that the hall is the property of the state which is under his custody and control in his capacity headman.  It is clear from these allegations that the second applicant is seeking for these reliefs in his capacity as headman and not in his personal capacity.  I have already stated that the second applicant as a representative for the traditional authority has no locus standi to bring application in his own name.  He ought to have brought the application on behalf and as a representative for the traditional authority. The second applicant has thus failed to make out a case that he has the locus standi to bring the application in his capacity as member of the association.

 

[29] I have thus arrived at the overall conclusion that the applicants have failed to make out a case that they have the locus standi in any of the capacities alleged entitling them to bring this application.

[30] In the result I make the following orders:

[30.1]  The two points in limine raised by the respondents are upheld.  The application is struck from the roll.

[30.2]  The individuals listed in annexure ABM 1 to the founding affidavit and the second applicant are ordered to pay the respondents’ costs jointly and severally the one paying the other to be absolved, such costs to include the costs of one instructing counsel and one instructed counsel.

H Angula

Deputy Judge President

APPEARANCES

APPLICANTS: Mr Chimbwana

Instructed by Government Attorneys

RESPONDENTS: Mr Barnard

Instructed by Du Pisani Legal Practitioners

[1] 2014(1) NR 290 (HC)

[2] 2007 (6) SA 313 (SCA).

[3] 1995 (3)SA 787 (N).

[4] 1997(3)SA 1136 (W.).

[5] 2009 (5) SA 648 (SCA).

[6] 2011 (5) SA 648 (WCC).

[7] 2015 (4) SA 474 SCA).

[8] (A314-2011[2015] NAHCMD 245 (12 October 2015).

[9] 2010 (4) SA 499 (SCA)

[10] See: Konga Clearing Agencies CC v Minister of Finance 2011 (2) NR 623.

[11] Republican Party of Namibia and Another v Electoral Commission of Namibia and Others 2010 (1) NR 73 (HC) at 108.


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