Court name
High Court
Case name
Kavendjaa v Kaunozodunge NO and Others
Media neutral citation
[2005] NAHC 21










CASE
NO.: (P) A 62/2003








IN
THE HIGH COURT OF NAMIBIA








In
the matter between:








ELSE
KAVENDJAA APPLICANT











and








KENNETH
KOO KAUNOZONDUNGE N.O. 1ST RESPONDENT





MICHAEL
TJIUEZA 2ND RESPONDENT





THE
ASSISTANT MAGISTRATE FOR


THE
DISTRICT OF WINDHOEK 3RD RESPONDENT











CORAM:
DAMASEB, JP








Heard
on: 05.10.2004





Delivered
on: 07.07.2005









JUDGMENT:


DAMASEB,
JP
:
It may sound a heresy in present-day Namibia, but in
the case now before me ethnicity and race are factors relevant to the
outcome of a legal dispute involving a Namibian who died in 1994.
In the Notice of Motion, the following relief is claimed:






1. Declaring
the provisions of Section 18 of the Native Administration
Proclamation, 1928 (Proclamation 15 of 1928) and the Regulations
promulgated in terms thereof in Government Notice G.N. 70 of 1954 to
be unconstitutional.
1






  1. Declaring
    the appointment of the first respondent, by the third respondent in
    terms of Section 2(a) of the Government Notice 70 of 1954, under
    Letter of Executorship number 7/1/2-34/94 and dated the 11th
    of February 1994 to be null and void ab initio, alternatively
    removing the first respondent as executor of the estate late Nelson
    Kaunozondunge and appointing Mathew Karumbu as executor in his name
    place and stead.








  1. Declaring
    the common law rule prohibiting illegitimate children from
    succeeding to their biological fathers’ estate(s) to be
    discriminatory and as such unconstitutional.







  1. Declaring
    the applicant to be the legitimate heir in and to the estate of the
    late Nelson Kaunozondunge and as such entitled to inherit ab
    intestatio in and to such estate.







  1. Ordering
    and directing that the estate late Nelson Kaunozondunge, shall
    devolve and be administered in terms of the common law governing
    intestate succession as applicable in the Republic of Namibia and
    that certain erf number 4961, Katutura Township, Extension 11,
    situated in the Municipality of Windhoek, Registration Division “K”
    in extent 260 (TWO HUNDRED AND







SIXTY)
square meters and held by Deed of Transfer number T1680/1985 be
transferred to and registered in the name of the applicant.







  1. Costs
    of the application.







  1. Further
    and/or alternative relief.”






unconstitutionality
of s 18 and the regulations made thereunder



As I have shown, this Court
already declared ss 18(1), 18(2) and 18(9), and the Regulations made
under s 18(a unconstitutional and gave Parliament time, since
extended to December 2005, to rectify the defect found by the Court
to exist (vide footnote 1). In argument, when I heard the
present application, Mr. Skickerling submitted as follows in respect
of prayer I of the Notice of Motion:






‘’ It is
respectfully submitted that in the premises [i.e. the fact that the
court found the provisions unconstitutional but suspended the
operation of unconstitutionality] the relief prayed for by the
applicants in paragraph 1 of the Notice of Motion has become purely
academic and until such time as parliament has remedied the defect
the parties are bound by the provisions of the Proclamation and
the Regulations promulgated in terms thereof
”. (emphasis
supplied)





Mr.
Kasuto, for the respondents, shares that view. I therefore accept,
for the purposes of these proceedings, that the relevant provisions
of s 18 and the Regulations under it are valid and govern the dispute
now before me.











There
are three respondents in this application: The first is Kenneth
Kaunozondunge, a major male, who is the “executor” of the estate
of late Nelson Kaunozondunge (“the deceased”), and appointed to
that office by the third respondent. The first respondent is a
brother of the deceased. The second respondent is Michael Tjiueza, an
adult male, to whom was awarded, by first respondent as executor, the
only immovable property from the deceased’s estate. The second
respondent is also a brother of the deceased. The third respondent
is the assistant magistrate for the District of Windhoek, appointed
in terms of the Magistrates’ Court Act 32 of 1944 (as amended);
and, according to the applicant, ‘’cited in her capacity as
contemplated by s 18 of the Native Administration Proclamation of
1928.’’
2
(Hereinafter I will refer to this legislation as “the Native
Proclamation.’’)














FACTS
COMMON CAUSE TO PARTIES





The
following critical facts are common cause: Late Nelson Kaunozondunge
(“the deceased”) died, without having executed a valid will, on
31st January 1994. The deceased hailed from the Herero
ethnic group of Namibia and belongs to the Black race and is thus a
“Native”, defined in s 25 of the Native Proclamation as “any
person who is a member of any aboriginal race or tribe of Africa
…”
The Herero are such a tribe.


At
the time of his death the deceased was a ‘’divorcee’’
from one Cynthia Kaunozondunge from whom he divorced on 17th
November 1964. The marriage to Cynthia was solemnized in 1957 and he
had one child with her. In life, the deceased owned immoveable
property, being erf 4961, Katutura Township, Extension 11, situated
in the Municipality of Windhoek, Registration Division “K” and
measuring in extent 260 square meters and held by Deed of Transfer
No. T 1680/ 1985 (hereafter “the disputed property”). After the
deceased’s death, the first respondent was appointed as executor of
the estate of the deceased by the third respondent.





That
appointment (annexure ‘’EK 1’’) was on 11th
February 1994 and is stated to be in terms of s 2(a) of Government
Notice 70 of 1954,
3
and reads





“LETTER
OF ADMINISTRATION


This
is to certify that (name of first respondent)


has
been duly appointed the executor and is hereby authorized


as
such to administer the estate of the late (name of deceased given)


who
died at Windhoek on the 31.01.1994 ‘’.





Purporting
to act as such executor, the first respondent awarded the disputed
property to the second respondent. The deceased was survived by his
father, one Alex Mieze (hereafter “late Mieze senior”), who died
before the present proceedings were launched. The deceased had
fathered eight children during his lifetime. Of those children, only
one (Getrud Constantia Ndungana) is a legitimate child of the
marriage with Cynthia. At the time of his death the deceased was not
a partner in a marriage in community of property or out of community
of property. The present application was brought approximately 9
years after the death of the deceased. The disputed property has not
yet been registered in the name of the second respondent and remains
vested in the deceased’s estate which, I may add, is a separate
legal persona from the “executor”.





CONFLICTING
VERSIONS OF THE PARTIES





The
applicant, Else Kavendjaa, deposed to the main affidavit in this
application. At the outset she sets out the reason for the
application as being to have the provisions of s 18 of the Native
Proclamation and the Regulations published in terms thereof, declared
unconstitutional, and to have the first respondent removed as
executor of the estate of the deceased. (It has now become





unnecessary
for me to resolve the dispute about the constitutionality or
otherwise of s 18 of the Native Proclamation and the Regulations made
thereunder.)





The
applicant alleges that the deceased, during his lifetime, fathered
the following 8 children: herself, one Mara Kavendjaa, Matthew
Karumbu, Christiaan


Karumbu,
Albertus Spiegel, Soa Spiegel, one Kavandare, and Getrud
Kauzonondunge, the latter being the child of the marriage between the
deceased and Cynthia and, of his 8 children, the only legitimate
issue of the deceased. The applicant avers that when the deceased
died he was not survived by any spouse, not even by virtue of a
customary union; a fact, it is alleged, which required the deceased’s
estate to be administered and his property devolved as if he had been
a “European”, by virtue of the provisions of regulation 2(a) (i)
and (ii) issued in terms of the Native Proclamation (hereafter “the
Regulations”).





The
applicant alleges that first respondent’s appointment as executor
is void ab origine because the regulation under which the
appointment was purportedly made by the first respondent makes no
provision for the appointment of executors.
4
In the alternative, the applicant avers that the first respondent’s
appointment as executor falls to be set aside because he obtained
such








appointment
on the strength of false information furnished to the third
respondent by first and second respondents.





In
the further alternative, the applicant alleges that the appointment
of first respondent as executor falls to be set aside because he had
grossly failed in his duties as executor. In the final alternative,
the applicant alleges that her paternal grandfather, guardian and
family head (under customary law), late Mieze senior, should have
been ‘’regarded’’ as executor of the deceased’s estate in
terms of s 18(5) of the Native Proclamation. The applicant also
relies on s 18 (7) of the Proclamation for the allegation that
letters of executorship may only be issued to an heir (which the
first respondent was not), or to a guardian in case of a minor; it
being alleged that late Mieze senior, not the first respondent, was
the guardian of the applicant. Ss 18(3), 18(5) and 18(7) were
repealed by Act 27 of 1985, s 7(a). I will accordingly disregard all
allegations and any legal submissions relying on them and hardly need
to add that any relief founded on those provisions must fail.





The
applicant alleges that the first respondent in an affidavit he had
sworn to obtain his appointment as executor from the third
respondent, falsely alleged that the “family’’ of the deceased
had agreed that he be so appointed. The applicant’s case is that
she, her siblings and late Mieze senior never partook in such a
decision. If any family was involved, she says, it could only have
been the extended family but not the ‘’ direct family such as
the deceased’s father, I or my brothers and sisters’’.





The
applicant avers that in fact all close family were opposed to the
appointment of the first respondent as executor. The applicant avers
that the first respondent had called for a meeting before his
appointment as executor at which she and late Mieze senior and her
other siblings were present, but were then, because of their
opposition to the first respondent’s appointment as executor,
excluded from the proceedings by the first respondent. The applicant
annexes as “EK 7” and “EK 8”, being affidavits by late Mieze
senior and Matthew Karumbu (the latter being applicant’s brother),
as proof of the fact that those deponents opposed the appointment of
first respondent as executor. The two affidavits, it is conceded,
were drawn up long before the present proceedings but in
“anticipation” thereof; a fact, it is alleged, which explains
why the headings in those affidavits are different from that in the
present application. The affidavit of late Mieze senior appears to
have been deposed to on 26 January 2001 while the one of Karumbu
appears to have been deposed to on 7 March 2001. The Notice of Motion
in the


present
proceedings is dated 28 February 2003; while the applicant’s
affidavit was deposed to on 3 March 2003.





The
applicant then avers that she and her other siblings only
‘’discovered’’ the appointment of the first respondent as
executor on 17th February 1994 from the third respondent.
On the same date Getrud, being the only legitimate issue of the
deceased, wrote a letter , annexed to the applicant’s affidavit and
addressed to ‘’Magistrate, Department of Justice, Windhoek’’
which, inter alia, reads as follows:






Kindly
issue an order to stop anything from touching the estate of my late
father Nelson Kaunozondunge. Kindly read also my statement which is
self-explanatory …Kindly treat this matter as urgent …possible
because the family have already taken some items…’’
(The
existence of this letter is not disputed.)


























The
statement referred to is a document in long- hand wherein its author
identifies themselves as Getrud Kaunozondunge and ‘’heir to the
estate ‘’ of the deceased, and appointing in it ‘’attorney’’
Marlene Dammert as ‘’representative’’ of the estate of the
deceased and giving directions as to how the assets of the estate
should be dealt with and specifically says that the immovable
property must be kept “in trust” for her.





The
applicant avers that the only dependant children of the deceased at
the time he died were herself and her brother, one Matthew, and that
the deceased had indicated the two of them as his dependants in his
employment records with the Municipality of Windhoek. As proof of
this allegation the applicant annexes EK 13. In addition to
being hearsay, EK 13 is a document in Afrikaans and no sworn
translation of it is provided. Consequently, it falls to be struck
and whether or not regard will be had to it will necessarily depend
on whether the allegation in support of which it is provided is
admitted or not by the respondents. Aware that even if the estate of
the deceased were to devolve in terms of the Intestate Succession
Ordinance
5
read with the common law she still faces the hurdle that as an
illegitimate child she would not be able to inherit from the deceased
while there is legitimate issue of the deceased - the applicant
alleges





that
the common law rule preventing illegitimate children from inheriting
from their fathers is unconstitutional and should be so declared so
that she can inherit from the deceased ab intestatio ‘’ in
accordance with his wishes
.’’





The
applicant also avers that should it be found that the estate of the
deceased is to devolve in terms of customary law that such law does
not require a written will and that effect is to be given primarily
to the wishes of the deceased. The corollary to this allegation is
the further allegation that customary law does not distinguish
between legitimate and illegitimate children (presumably when it
comes to inheritance) and that it had always been the wish of the
deceased that she (the applicant) should inherit the disputed
property- a wish which, it is alleged, was always respected by the
applicant’s siblings and the deceased’s father, late Mieze
senior. In support, the applicant annexes the confirmatory affidavit
of a brother, Matthew Karumbu, dated 7 March 2001 whose surrounding
circumstances I already explained.





The
applicant alleges that the award of the disputed property by first
respondent to second respondent was contrary to both the law and the
wishes of the deceased. It is further alleged that the first
respondent, in his administration of the estate of the deceased,
acted in an arbitrary manner and negated the wishes of the deceased
and those of the children of the deceased. The applicant also alleges
that the first respondent allowed arrears to build up with the
Municipality in respect of rates and taxes in excess of N$10 000, and
that the second respondent continues to live in the disputed property
without paying for the municipal services. The applicant annexes as
“EK 17”, an unpaid Municipality account, and says that on account
of this the Municipality had given instructions to Du Toit Associates
to foreclose on the disputed property. She alleges that she took
action to stall the foreclosure until the finalization of the present
application. The applicant further alleges that to this day the
property had not been transferred and that the second respondent
continues to live in it unlawfully without paying for municipal
services.














The
first respondent deposed to an affidavit in opposition to the relief
sought. He, as would be expected, alleges that he had been properly
appointed as executor in terms of applicable law and in terms of
Herero customary law. He denies that the applicant was a dependant of
the deceased.





The
first respondent denies too that at the time of his death the
deceased was not a partner in a customary law marriage. He asserts
that the deceased had in fact been a partner in such a customary law
union with one Meriam Kasuto. (The allegation is not confirmed by way
of a confirmatory affidavit, nor is any explanation proffered for her
inability, for any cause, to do so.) The allegation here is critical,
for it is on the strength of it that the first respondent alleges
that the estate of the deceased did not fall to be administered in
terms of the Intestate Succession Ordinance read with the common law
as if he had been a European, but in terms of Herero customary law.





The
first respondent avers that the third respondent’s administrative
act of appointing him as executor of the estate of the deceased was a
mere formality to confirm his appointment (by then already done) to
that office by the relatives of the deceased who were entitled to
make such appointment in terms of Herero customary law. He appears to
be saying that the legally significant act was not so much the
appointment by the third respondent as the decision of the relatives
of the deceased taken at a meeting that took place for that purpose
after the death of the deceased, in the presence of one Reverend
Otniel Katzizeko Kaura (being a cousin of the deceased), and attended
by the following: Samuel Kavezeri, Matthew Karumbu (son of deceased),
Albertus Spiegel, Kasupi Mieze (half brother to deceased), Kavesorere
Mieze, Theobald Tziueza ( half brother to deceased), the first
respondent himself, and others whose names he cannot remember. (In
context, the first respondent seems to be saying that those not
indicated as the deceased’s children were his half brothers.) The
first respondent also makes the point that although in terms of
customary law the children of the deceased were not entitled to
participate in the meeting dealing with the division of the estate of
the father (the deceased), some of them (Matthew Karumbi and Albertus
Spiegel) were however present. He expresses surprise at the
suggestion by Matthew Karumbi that he did not attend such a meeting.
Based on this alleged meeting,





the
first respondent denies that his appointment to the office of
executor was obtained through false information.





The
first respondent alleges that immediately after the meeting and
before they approached the magistrate to appoint him as executor, the
decision so appointing him was conveyed to all the relatives of the
deceased, including the applicant. The first respondent refers to an
affidavit by Otniel Katzizeko Kaura to buttress his version. The
first respondent denies that he failed in the discharge of his duties
as executor, as alleged by the applicant.





The
first respondent maintains that should the Court find that the
division was invalid, he, and others not identified, will have claims
against the estate for expenses they incurred on behalf of the estate
in an effort to prevent assets of the estate being attached and sold
in execution; and that what they had so far expended to “rescue”
the estate is more than the net worth of the disputed property. He
says that the jewelry shop belonging to the estate had already been
attached and sold in execution for unpaid debts.





The
first respondent also denies that late Mieze senior was the guardian
of the applicant and that, on the contrary, the guardian of an
illegitimate child, under customary law, is its biological mother;
and that applicant’s mother is still alive. The first respondent
states that the mother of the applicant was also present at the
meeting where the division of the estate took place, but offered no
objection.





The
first respondent denies that late Mieze senior was the one
entitled to be appointed as executor of the deceased’s estate. He
also avers that in terms of customary law the late Mieze senior was
not entitled to inherit from his son, the deceased, who was
illegitimate any way. He says that as a ‘’ full brother ‘’ of
the deceased he (the first respondent) was entitled to inherit
(including the disputed property) from his deceased brother but that
he, out of respect of the wishes of the deceased and their mother, he
decided to award the disputed property to the second respondent. He
contended himself with taking care of the liabilities of the estate,
that being the reason why it took so long to pay off the municipal
debts owed by the estate in respect of the disputed property. The
first respondent also





denies
that he failed grossly in his duties as executor and that the
applicant had ever brought such failure to his attention nor to that
of Otniel Kaura or the third


respondent.
He says that the division of the estate took place at the beginning
of 1994.





The
first respondent avers that the applicant and the deceased were not
on good terms and that the deceased had actually chased the applicant
away from his house and referred to her as a “ crook’’. He
says that was either in the late 70s or early 80s. He thus disputes
the suggested close relationship (by the applicant) between the
applicant and the deceased from which she wants the inference drawn
that the deceased, because of his affection for her, desired her to,
upon his death, inherit the disputed property.





First
respondent admits that he deposed to an affidavit in support of the
request to be appointed as executor by the third respondent and says
that it was in accordance with the wishes of the family, including
some of the children of the deceased, being Matthew Karumbu and
Albertus Spiegel who were also present at the division of the estate.
He says that the estate was in fact insolvent and that it had only N$
45.00 to its credit in the bank account, and that the children of the
deceased had no interest in the estate because of its debts. He also
states that, in her absence, the applicant was awarded the lounge
suite from the estate and that the other children received their
respective shares from the estate. (The details of what each child
allegedly received is set out in the affidavit of first respondent).
According to the first respondent, the disputed property went to the
second respondent in accordance with the wishes of the deceased. The
first respondent avers that the applicant was invited to the division
of the estate but chose not to be present.





The
first respondent denies that the reason that the names of the
deceased’s children were entered in the records of the Municipality
was because they were the deceased’s dependants, and maintains that
the names were thus entered because it was a requirement of the
Municipality at the time to state that one had children in order to
enter into a lease agreement. (That they were thus entered is not
disputed and must be accepted as admitted.) The first respondent says
that





the
applicant was not brought up by the deceased and never stayed at his
house, except for one week before she was chased away. As for Matthew
Karumbu, first


respondent
maintains that he was brought up by his (Karumbu’s) mother in
Omatjete and never stayed with the deceased.





The
first respondent disputes that the affidavit allegedly deposed to by
late Mieze senior was by the said Mieze, and suggests that it be sent
to a hand-writing expert. He at some point expressly, but generally
by implication, denies that late Mieze senior deposed to the matters
attributed to him in the affidavit annexed as “EK 8” or that he
knew the content of that affidavit considering it is in English, a
language late Mieze senior was not familiar with. He also makes
adverse comment about the fact that late Mieze senior could depose to
an affidavit at all before the applicant deposed to an affidavit. He
insists that the late Mieze senior was present when he (first
respondent) was appointed as executor and also during the division of
the estate. He suggests that this may very well be a matter to be
referred to oral evidence.





The
first respondent denies that the meeting called for the purpose of
appointing him as executor took place at the house of the deceased
and says it took place at his (first respondent’s) house. He denies
that late Mieze senior was entitled to discuss the issue of his
appointment as executor. He also denies that he ordered late Mieze
senior away from the meeting and says that the suggestion is
unthinkable.





The
first respondent denies that the applicant and her other siblings
came to learn of his appointment as executor only on 17th
February 1994 and maintains that she knew soon after the decision was
taken and the appointment made, and that he invited applicant to the
meeting for the division of the estate but that she refused to
attend. First respondent also refers to a letter (EK 16) directed to
applicant’s legal representative in which the fact that she refused
to attend the meeting is mentioned but that no denial of that was
ever made by the applicant and wants the Court to draw an adverse
inference from that. According to the first respondent, some of
applicant’s siblings, whose names are given, were








present
at such meeting. He says that in terms of customary law, any one
dissatisfied with the division of the estate has a right up to one
month from the


date
of such division, to lodge an objection. The first respondent avers
that those present at the meeting for the division of the estate
decided that the disputed


property
be awarded to the second respondent as that was the wish of the
deceased. The applicant was aware of that fact and accepted it, he
says. He says that the applicant now lays claim to the disputed
property because ‘’ most of the debts of have been settled…’’
First respondent says that the fact that the applicant had no
interest in the estate of the deceased is evidenced by the fact that
she even refused to accept the lounge suite that was awarded to her
from the estate of the deceased.





As
for the allegation that Getrud objected to the appointment of the
first respondent as executor and that the third respondent failed to
intervene, the first respondent says that he is not aware of the
allegation and cannot comment, admit or deny same.





The
first respondent denies that the applicant is entitled to inherit
from the deceased ab intestatio.





The
first respondent disputes the legal conclusions relied on by the
applicant based on the facts that she relies on. He also denies that
the Municipality could sell the disputed property as the second
respondent had entered into an agreement with the legal practitioner
of the Municipality on payment terms in respect of the outstanding
debt. (The second respondent deposed to a confirmatory affidavit in
which he confirms the allegations by the first respondent concerning
him and the fact that the deceased wished that he, the second
respondent, should inherit the disputed property). First and second
respondents both allege that the reason the disputed property had not
yet been transferred to second respondent is because there is still a
debt due to the Municipality which second respondent is busy paying.














Otniel
Kaura, who says that he is a Herero and acquainted with the customary
laws and practices of that tribe, alleges, in his confirmatory
affidavit, that he was brought up by the mother of the deceased and
that the first and second respondents are his cousins. He confirms
that after the deceased’s death, he was


appointed
to conduct the proceedings in respect of the division of the estate
of the deceased and that he chaired the meeting called for that
purpose. It is not clear who “appointed” him.





Kaura,
apart from confirming the allegations of first respondent as far as
those relate to him, alleges that he is the person entitled in terms
of customary law and practice to see to it that the wishes of the
deceased are implemented, in the absence of a desire on the part of
the deceased that his estate be devolved in terms of customary law.
(No other basis is laid to support the assertion of Kaura’s
entitlement in the way he alleges.) Kaura also alleges that the
applicant’s version, confirmed to the extent that it is, that the
applicant and other close relatives were excluded by the first
respondent from the meeting at which the division of the deceased’s
estate was discussed, is not true. He states expressly that late
Mieze senior was present at the meeting at the first respondent’s
house where the people gathered after the deceased’s death and at
the further meeting whereat Kaura was appointed as aforesaid,
including the meeting at which the first respondent was ‘’appointed
and recommended’’ for appointment as executor. He avers further
that the late Mieze senior in fact supported the appointment of the
first respondent and partook in all deliberations relative to the
appointment of the first respondent as executor. Kaura says that he
was the one who was responsible for inviting the father of the
deceased (late Mieze senior) to the meeting and that he had received
no objection from anyone about the appointment of the first
respondent. No such objection was received, according to him, a month
after the estate had been distributed as required by customary law.
Kaura also gives a list of all the relatives that attended the
meeting, including the names of the children of the deceased, and the
mother of the applicant.

















As
regards the allegation that the first respondent excluded the close
family of the deceased from the meeting called to deal with the
division of the estate of the deceased, Kaura states in terms that he
could not have allowed the first respondent to exclude the children
of the deceased from such proceedings.





Kaura
alleges further that on more than one occasion the deceased had told
him that upon his death he wished the disputed property to be
inherited by the second respondent. He also expresses surprise at the
content of the affidavit attributed to the late father of the
deceased, the late Mieze senior.





The
confirmatory affidavits of several other deponents are provided by
the first respondent to buttress his case. I will deal with these
briefly: the first one is of Elizabeth Ujara Tjiriange who says she
is employed at the Windhoek Municipality and was a girlfriend of the
deceased and was told by the deceased, when he was


still
alive that when he (the deceased) dies it is his wish that the second
respondent should inherit the disputed property. She says that she
conveyed this information to those who attended the meeting at which
the division of the estate took place. For what it is worth, she adds
in her affidavit that she was told by the deceased that he did not
like the applicant and that it was only in 2000 that the applicant
‘’came to me and said she has changed her mind and what to be
registered owner’’
(sic) of the disputed property. The next
is one Theobald Michael Tjiueza who says that he is a brother of the
deceased and that the deceased had told him, when he was still alive,
that he wanted the second respondent to inherit the disputed property
upon his death.





The
other person to have deposed to an affidavit in support of the case
of the first respondent, is one Rinaani Kandirikirira, a Herero male
who says he is a member of the Kandirikirira Royal House and a Herero
community leader. He says that he is acquainted with Herero customary
laws and practices and confirms the allegations of the first
respondent germane to customary laws of the Herero people. He appears
also to know something about the circumstances around this case and
states in his affidavit that he knew the late Mieze senior and that
they were friends. He alleges that late Mieze senior supported the
appointment of the first respondent as executor of the estate of the
deceased although Mieze senior





was
not entitled to have a say in the administration of the estate of the
deceased as the deceased was not born in wedlock. He asserts that
only the relatives of the deceased on the mother’s line had a say
in the administration of the estate of the deceased. He says too that
late Mieze senior could not read or understand English. This deponent
disputes the applicant’s version that Herero customary


law
does not recognize the concepts of legitimacy and illegitimacy and
says that the contrary is the case. He states that the deceased,
before his death, said to him that he wished the second respondent to
inherit the disputed property. This deponent also deposes that
according to Herero customary law, a person who is dissatisfied with
the division of an estate has one month from the date of such
division to lodge a complaint but that in this case that did not
happen. He concludes that it was in accordance with Herero customary
law for the first respondent to be appointed executor of the estate
of the deceased. The last deponent is one Johannes Kapuue Ndjambi
Mootu who says that he previously


resided
in the Old Location before their forced removal to Katutura in 1968.
He says he had lived in Katutura for nearly 20 years and is thus
acquainted with the practices of the Municipality and its
relationship with its tenants. He confirms the allegations made by
the first respondent apropos the reason why the applicant, and
another of her siblings – Karumbu - appeared in the documents of
the Municipality as dependants of the deceased. So much for the case
of the first respondent.





The
applicant deposed to a replying affidavit with a confirmatory
affidavit by her mother and two others, including Getrud, the only
legitimate issue of the deceased. I will summarize what they have to
say. The reply is in essence a complete denial of the critical
averments on which the first and second respondents rely in
opposition to the relief sought by the applicant. To avoid prolixity
I do not intend to repeat all that is said in the reply but to deal
only with the salient averments contained in therein which add
something new to the papers. The applicant denies that the deceased
had ever entered into a customary union with Meriam Kasuto. She says
that Meriam Kasuto was only a girlfriend of the deceased and that
that relationship ended some six years before the death of the
deceased. The applicant makes reference to the fact that there is








no
confirmatory affidavit in support of the allegation that there was a
customary union as alleged.





As
for those persons that the first respondent says attended the
meetings at which he was appointed and the division of the estate
took place, the applicant replies that they are not ‘’ direct
family’’ and repeats that they could not have


validly
taken any decisions as they had no interest in the estate: Samuel
Kavezeri, Kasupi Mieze, Kavesorere Mieze and Theobald Michael Tzieza
are placed in this category; and, she says, that Otniel Katjizeko
Kaura is not related to the deceased and that his mother was only a
friend of the deceased’s mother. As for Albertus Spiegel, the
applicant points to the absence of a confirmatory affidavit by the
latter and wants an adverse inference drawn from such failure.





The
applicant persists that the estate of the deceased is to devolve as
if he were a ‘’European’’. The applicant also says that the
first respondent sold the contents of the jewelry shop but did not
account for the proceeds thereof thus showing that he grossly failed
in his duties as executor. The applicant concedes that as a ‘’general
principle… mothers are guardians of illegitimate children’’

but says that it is not an absolute principle and that in her case
her father (the deceased) was her guardian, and after her father’s
death, her grandfather, late Mieze senior. She denies that her
mother attended any meeting and provides a confirmatory affidavit by
her mother.





The
applicant makes clear that she relies on the Municipality records
(annexure EK 13) as to the intentions of her father (the deceased) in
respect of the disputed property. She denies that it was her father’s
intention that the property devolve in terms of customary law, or
that it be inherited by the second respondent. The applicant says
that the only meeting attended by late Mieze senior, her mother and
her two brothers, Albertus and Matthew, was that at which the
personal belongings of the deceased were distributed. She denies that
she was disinterested in the estate of the deceased and denies that
she received a lounge suite. Te applicant persists that the first
time she became aware of the first respondent’s appointment as
executor was on 17 February 1994 and that she








immediately
brought it to the attention of Getrud and that, the children of the
deceased, (she included) and late Mieze senior, always objected to
the first respondent assuming office of executor of the estate of the
deceased.




She
also denies that under the Herero customary law a one month
prescription period (if I can call it that) exists for the lodging of
a complaint about the manner of administration of an estate.





The
applicant alleges that when she became aware that the disputed
property was awarded to the second respondent, she brought it to the
attention of the deceased’s only legitimate issue, Getrud, whom she
expected to do something about the matter but that Getrud left for
South Africa and only returned recently; which is when the present
application was launched. (The deponent does not say when Getrud
returned to Namibia from South Africa and why she had not acted
earlier). The applicant also avers in reply that the disputed
property is being let out to the second respondent and finds that
strange if the wish of the deceased, according to the first
respondent, was that it should be inherited by the second respondent.
She also says that it is significant that the first respondent does
not provide documentary proof to counter the allegation that the
rates and taxes, water and electricity remain in arrear in respect of
the disputed property; an allegation being relied upon by the
applicant to demonstrate the alleged dereliction of duty, as
executor, on the part of the first respondent, which has the
potential of the disputed property being attached and sold in
execution.






ISSUES
REQUIRING RESOLUTION





constitutionality
of the common law rule that an illegitimate child cannot inherit from
the father


As
I pointed out at the outset, there are only three respondents in this
matter, only one of whom (third respondent) occupies public office
but not having a direct interest in advancing the cause of justifying
the constitutionality of the common law rule being challenged. In
Moise v Greater Germiston TLC: Minister of





Justice
Intervening 2001 (4) SA 491 Somyalo AJ writing on behalf of the Court
said:



[19]
It is no longer doubted that, once a limitation has been found to
exist, the burden of justification under s36(1) rests on the party
asserting that the limitation is



saved
by the application of the provisions of the section. The weighing up
exercise is ultimately concerned with the proportional assessment of
competing interests but, to the extent that justification rests on
factual and/or policy considerations, the party contending for
justification must put such material before the Court. It is for
this reason that the government functionary responsible for
legislation that is being challenged on constitutional grounds must
be cited as a party.
If the government wishes to defend the
particular enactment, it then has the opportunity – indeed an



obligation
– to do so. The obligation includes not only the submission of
legal argument but the placing before Court of the requisite factual
material and policy considerations. Therefore, although the burden
of justification under s36 is no ordinary onus, failure by government
to submit such data and argument may in appropriate cases tip the
scales against it and result in the invalidation of the challenged
enactment. Indeed, this is such a case.






[20] The
absence of evidence or argument in support of the limitation has a
profound bearing on the weighing up exercise, the more so as the
parties who chose to remain silent have special knowledge of
provincial and local government administration’’.
[my
emphasis]






In
casu
the Attorney General
6
has not been cited nor has any Minister of the government. The
government has not chosen to remain silent: it was





consciously
excluded by the applicant from these proceedings. That is fatal. It
is an unwholesome practice to be discouraged for people to seek to
challenge the constitutionality of a law without citing the
government which carries the political responsibility for the
continued existence of law. I am therefore in respectful agreement
with what has been said by the Constitutional Court in the Moise
matter. This leg of the relief must in the premises be refused.





The
only issues then between the parties falling for determination by
this Court revolve around prayers 2, 4 and 5 of the Notice of Motion.
It is to that task I now turn.





The
applicant’s surviving case is that the first respondent’s
appointment as executor must be set aside for the following reasons:
firstly because it was ultra vires the powers of the third
respondent to appoint the first respondent; secondly because he
obtained his appointment from the third respondent dishonestly in
that he did not have the blessing of the direct family of the
deceased; thirdly because he grossly failed in (or neglected) his
duties as executor. On each of these issues there is, as I have
shown, a monumental dispute on the facts. The first is a purely legal
inquiry and I will deal with it first.





Is
respondent’s appointment as executor ultra vires the powers of
third respondent?


Magistrates
are appointed under the Magistrates’ Courts Act. They therefore
enjoy only such competence and powers as are given to them under law:
no more, no less. In making the appointment of executors of
estates of deceased natives, magistrates purport to perform a power.
Now in order to do so, such power must be expressly granted by law or
must be inferred by necessary implication.














I
have already made reference to the finding by Manyarara AJ (vide
footnote 4) that the appointment by magistrates of executors to
native estates, as in casu, is not authorized by law and is
thus ultra vires and that the magistrates purported to make
such appointments ‘’ by necessary implication”.





I
am not altogether sure what he had in mind when the learned Judge
referred to “by necessary implication”. I say so for the
reason that power is conferred in two ways: expressly and by
necessary implication. To find, on the one hand, that a power is
conferred by necessary implication while at the same time
holding that it was not sanctioned by law, seems to me to be a
contradiction in terms. As Baxter
7
comments:




In addition to
the powers which are expressly conferred on public authorities, a
proper construction of the empowering legislation might reveal that
further powers have also been impliedly conferred. Powers may be
presumed to have been impliedly conferred because they constitute a
logical or necessary consequence of the powers which have been
expressly conferred, because they are reasonably required in order to
exercise the powers expressly conferred, or because they are
ancillary or incidental to those expressly conferred”





What
the learned Judge probably had in mind by referring to “by
necessary implication”
is that magistrates think that because
the law does not prevent them from exercising the power, they are at
liberty to do so. That clearly is untenable in a constitutional
State. The principle is quite succinctly set out in








characteristic
eloquence (and I am in respectful agreement therewith) by Baxter (op
cit at 384): when he says:






“ …’power’,
in legal parlance, means lawfully authorized power. Public
authorities [this concept includes public officials] possess only so
much power as is lawfully authorized, and every administrative act
must be justified by reference to some lawful authority for



that act.
Moreover, on account of the institutional nature of the public
authority itself exists as an office created by law. A valid
exercise of administrative power requires both lawful
authorization
for the act concerned and the exercise of that
power by the proper or lawful authority.”





(See
Malherbe v South African Medical and Dental Council 1962 (1) SA 825
(N) ,829 G-830A; De Villiers v Pretoria Municipality 1912 TPD 626,
645-6; and Rose Innes, Judicial Review of Administrative Tribunals in
South Africa , 1963, at 91.)





It
is now settled law that a public authority or official is not
entitled to argue that because a particular activity or exercise of a
power is not prohibited by statute, they are entitled to perform it
although not expressly given. (See Burghersdorp Municipality v
Coney
1936 CPD 305.) I have not been referred to nor am I able to
find, either in s18 of the Native Proclamation, nor in s 2(a) of the
Regulations, on the strength of which annexure ‘’EK 1’’
appointing first respondent as executor was issued, any authority or
power in terms whereof, either expressly or by necessary implication,
third respondent could lawfully appoint first respondent as executor
to the estate of the deceased. It is for that reason that Manyarara
AJ














found
the practice to be ultra vires and declared it as such in the
Magrietha Berendt matter. I agree with the learned Judge.





In
his written Heads of Argument, as well as in oral argument, Mr.
Kasuto raised several points. The first is that the Applicant must
fail because there are disputes between the parties on just about
every issue which cannot be resolved on the papers. Mr. Kasuto
argues that the applicant must have foreseen


disputes
arising but took the risk to proceed on notice of motion. He relies,
amongst others, on Mine Workers Union of Namibia v Rossing Uranium
Limited
1991 NR 299 (HC) where the following is said (at 302 D):






A
principle which is fundamental to all notice of motion proceedings is
that if a litigant knows in advance that there will be a material
dispute of fact, the litigant cannot go by way of motion and
affidavit. If he nevertheless proceeds by way of motion he runs the
risk of having his case dismissed with costs. Tamarillo (Pty) Ltd v B
N Aitken (Pty) Ltd 1982 (1) SA 398 (A)”.





Next,
he submits, that the Applicant must be non-suited because she delayed
in bringing these proceedings. He appears to be saying that the
Applicant is acting in an opportunistic fashion: when the deceased
died all relatives realized that the estate was insolvent. In fact,
apart from the disputed property, the estate only had N$45-00 to its
credit in the bank account. There were debts to be paid; no one
wanted to assume the responsibility. In the event he (the first
respondent) was appointed executor, assumed the responsibility of
paying the debts of the estate, and now that those are settled, or
about to be settled, the








Applicant
who did nothing for nine years now opportunistically wants to take
transfer of the disputed property. Mr. Kasuto appears to be
suggesting that the Court should not allow her to do that. Learned
Counsel did not refer me to any authority for the latter proposition.
The only circumstance, to my knowledge, where delay may have this
effect contended for by Mr. Kasuto is in the context of review
proceedings in terms of Rule 53 of the Rules of this Court. This is
not such a proceeding and in the absence of authority sustaining the
point, it must


fail.
Besides, and this is common cause between the parties, the disputed
property has not yet been transferred.





Before
I go any further , I wish to deal with another point raised by Mr.
Kasuto which raises a very interesting point of law ; and it is
this: even if the “action” of magistrates to appoint executors
in respect of native estates is not authorized by law, this Court
must decline to declare it ultra vires; or better still ,
must suspend the operation of such an order in terms of Article 25 of
the Constitution until Parliament has given effect to the order of
this Court ( per Manyarara AJ and since extended by Heathcote AJ) to
rectify the defect. In that way, Mr. Kasuto argues, we will avoid the
chaos that will follow in the wake of an order of illegality as
native estates had for long been dealt with on that basis and it will
cause disruption if the Court is to declare the practice illegal. I
am not satisfied that the kind of action attributed to magistrates is
of the nature contemplated by article 25(1)(a). It seems to me that
the kind of action contemplated is action ‘’which abolishes or
abridges the fundamental rights and freedoms conferred in chapter
3’’.
Not every illegal action abolishes or abridges a
fundamental right or freedom. The makers of our Constitution, it
appears to me, intended to confine the saving





provisions
of Article 25 to those actions which “abolish” or “abridge”
fundamental rights and freedoms and not every action which is not
authorized by ordinary law, in casu the Native Proclamation.





Mr.
Kasuto has not pointed me to a particular right or freedom in chapter
3 which the “action” of appointing executors by magistrates is in
breach of. I cannot guess which it is. It was not raised in that way
in the papers and the applicant did not meet that kind of case. I
therefore decline the invitation by Mr. Kasuto to apply Article 25(1)
(a) in respect of the practice whereby magistrates appoint executors
to the estates of ‘’ Native “ Namibians without the authority
of law. This means that a case has been made out for the granting of
relief prayed for in prayer 2 of the notice of motion but only to the
following extent: “Declaring the appointment of the first
respondent, by the third respondent in terms of Section 2 (a) of the
Government Notice 70 of 1954, under Letter of Executorship number
7/1/2-34/94 and dated the 11th of February 1994 to be null
and void ab initio “
.





Applicant’s
case is that the estate of the deceased is to devolve as if he were a
European in terms of s 2 (a) of the Regulations because at the time
of his death he was (a) a divorcee, (b) he was not survived by a
spouse in a customary law union, and (c) he did not leave a valid
will. It is common cause that the deceased was a “divorcee” and
did not leave behind a valid will. If the requirement of no surviving
customary law spouse is met, the jurisdictional facts for the
application of s 2 (a) kick in and the law bestows on the deceased
the status of “European”, a code word for “White person”.(I
wonder if he knew that in death he would become








an
Honorary White man). In that event a case would have been made out
for the part of the relief in prayer 5 of the Notice of Motion which
reads: “Ordering and directing that the late Nelson
Kaunozondunge, shall devolve and be administered in terms of the
common law governing intestate succession as applicable in the
republic of Namibia…”
, although not in those exact terms.





As
must be apparent from my summary of the evidence, there is a dispute
as to whether or not the deceased was survived by a customary law
partner. The first respondent avers in his answering affidavit that
the deceased, subsequent to his





divorce
from Cynthia Kaunozondunge, entered into a customary law union with
one Meriam Kasuto. This allegation is denied strenuously by the
applicant whose case is that Meriam Kasuto was only a girlfriend who
the deceased had parted with some 6 years before his death.





COURT’S
APPROACH TO DISPUTE ON FACTS





A Full Bench
of this Court recently said in the case of Republican Party of
Namibia and Another v Electoral Commission of Namibia and 7 Others

Case No. A387/2005 (unreported) delivered on 26th April
2005, as follows (at p 70):






“ “It
is trite law that where conflicts of fact exist in motion proceedings
and there has been no resort to oral evidence, such conflicts of fact
should be resolved on the admitted facts and the facts deposed to by
or on behalf of the respondent. The facts set out in the respondent’s
papers are to be accepted unless the court considers them to be so
far-fetched or clearly untenable that the court can safely







reject
them on the papers. (Nqumba v The State President, 1988 (4) SA
224 (A) at 259 C – 263 D). At home it was recently said by
Strydom CJ in the unreported Supreme Court judgment of Walter
Mostert v The Minister of Justice
(Case No. SA 3/2002) at
p. 18, as follows:







.
… as the dispute was not referred to evidence, the principles,
applied in cases such as Stellenbosch Farmers’ Winery (Pty) Ltd v
Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 at p. 235 E-G and
Plascon- Evans Paints Ltd. v Van Riebeeck Paints (Pty) Ltd., 1984
(3) SA 623 (AD), must be followed. It follows therefore that once
a genuine dispute of fact was raised, which was not referred to
evidence, the court is bound to accept the version of the respondent
and facts admitted by the respondent …
’’
[our
emphasis]





Generally:
see Plascon- Evans Paints v Van Riebeeck Paints 1984 (3) SA 623,
and Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty)
Ltd
1957 (4) SA 234 (C) at 235 E-G.







It was said by Corbett JA in
the Plascon- Evans case, supra (at 634-635):






In
certain instances the denial by respondent of a fact alleged by
applicant may not be such as to raise a real, genuine or bona fide
dispute of fact. If in such a case the respondent has not availed
himself of his right to apply for



the
deponents concerned to be called for cross-examination under rule 6
(5) (g) and the court is satisfied as to the inherent credibility of
the applicant’s factual averment, it may proceed on the basis of
the correctness thereof…” ”





The
first respondent chose not to provide any confirmatory affidavit by
Meriam Kasuto. One would have thought that to be the obvious and
logical thing to do. Nor does he explain why it was not possible to
provide such confirmatory affidavit. It is an averment so crucial to
the case of the first respondent but appears not to be treated as
such in the papers. For example, he does not deal at





all
with the role she (Meriam Kasuto) played when it comes to the matter
of his appointment as executor and the division of the estate. It is
all the more inexplicable because he provided a confirmatory
affidavit by a person referred to as a girlfriend of the deceased,
one Tjiriange, about what the wishes of the deceased were before his
death. The first respondent also does not provide any details about
this customary law union: where was it conducted and when? He does
not even allege that he was present when it was conducted, nor does
he provide a confirmatory affidavit of a person who can positively
assert to having witnessed it. It is thus a bald allegation. It is so
far-fetched that I can reject it on the papers. I am not satisfied as
to the inherent credibility in the version of the





respondent
about the existence of a customary law union between the deceased and
Meriam Kasuto at the time of his death. I find therefore that at the
time of his death the deceased was not survived by a customary law
partner. His estate therefore has to devolve as if he were a
“European”.





Does
it follow that the applicant is entitled to succeed in respect of
prayer 4?





The
prayer asking for the declaration that the common law rule
disentitling illegitimate children from inheriting from their fathers
should be declared unconstitutional cannot succeed for the reasons I
have given. The applicant is thus not entitled to inherit ab
intestatio
from the deceased.





Has
she made out any other basis on which she can inherit? She suggests
in her affidavit that it was the wish of her father that she should
inherit the disputed property. That is disputed by the respondent.
The applicant has also provided confirmatory affidavits to show not
only that the deceased did not wish the applicant to inherit the
disputed property but that the fact that their names were





entered
in the records of the Municipality as dependants was not for the
purpose why she says it was entered. The fact that she may have been
entered as a dependant in the Municipality records does not, in my
view, necessarily lead to the inference that the deceased wanted the
applicant to inherit the disputed property. The version of the first
respondent that the deceased never intended that the applicant should
inherit the disputed property is not far-fetched and must therefore
be accepted on the Plascon – Evans test discussed earlier in this
judgment. In any event, it appears to me that the reason that the
alleged action that the deceased wanted the applicant to inherit the
disputed property was advanced was in the event that this Court were
to find that the estate is to devolve in terms of customary law. At
common law, the deceased having died without a valid will, what his
wish was is really neither here nor there.





The
relief sought in terms whereof the disputed property is to be
transferred in the name of the applicant must therefore fail.





The
deceased was not survived by a wife. He has only one legitimate
issue, Getrud Siyambala. She deposed to a confirmatory affidavit in
respect of the applicant’s replying affidavit. In that affidavit,
she makes no mention of her preferences in respect of the disputed
property. She is also not a party to these proceedings. In fact in a
document annexed to the found papers she expressed the wish that the
disputed property be kept in trust for her.





In
argument I was invited by Mr. Schickerling, for the applicant, that
should I not feel disposed to ordering that the disputed property be
transferred to the applicant, that I consider to make an order such
as was made by Manyarara AJ in the Magrietha Berendt matter supra
that the estate be reported to the Master of the High Court. The full
circumstances that actuated Manyarara AJ to make the order he did
were not argued before me and, besides, the Master of the High Court
was cited as a party in the Berendt matter. I therefore opt not to go
that route as the Master of the High Court is not a party to these
proceedings and has not been afforded the opportunity to address me
on the issue. In the premises, I consider that a more appropriate
order is a declaration that the estate of the deceased is to devolve
as if he were a “European” in terms of s 2(a) of the





Regulations
so as to enable any interested party to exercise their rights
according to law.





As
for costs, the applicant is successful in having the first
respondent’s appointment as executor set aside and obtaining a
declaration that the deceased’s estate devolve in terms of s 2(a)
of the Regulations. She has thus achieved substantial success. On the
other hand, she failed in obtaining the other relief which was aimed
at having the disputed property transferred into her name. In that
respect the respondents achieved some success. Having considered
carefully what kind of cost order to make in the circumstances in
fairness to both parties and bearing in mind the added length to the
proceedings because the applicant’s case was, in a significant
respect, predicated on provisions that had already been repealed, I
take the view that the applicant should recover only 45% of her taxed
costs from the respondents.








In
the premises, it is ordered as follows:









  1. The
    appointment of the first respondent, by the third respondent,
    purportedly in terms of s 2 (a) of Government Notice 70 of 1954,
    under Letter of Executorship number 7/1/2-34,94 and dated 11th
    February 1994 is hereby declared null and void;







  1. Prayers
    2 and 3 of the Notice of Motion are refused;







  1. It
    is ordered that the estate of late Nelson Kaunozondunge shall
    devolve as if he were a ‘’European’’, in terms of s 2(a) of
    the Government Notice 70 of 1954, promulgated in terms of s 18(9) of
    the Native Administration Proclamation, 15 0f 1928;






















  1. It
    is ordered that the first and second respondents, jointly and
    severally, the one paying the other to be absolved, shall be liable
    for 45% of the taxed costs of the applicant occasioned by this
    application; such costs to include the costs of one instructed and
    one instructing Counsel.
















































_______________


DAMASEB,
JP































ON BEHALF OF
THE APPLICANT Mr J Schickerling







Instructed by: Neves
Legal Practitioners







ON BEHALF OF
THE RESPONDENTS Mr E K Kasuto






Instructed by:






1
In the unreported judgment of this Court in Magrietha Berendt &
Another v Claudius Stuurman & 6 Others Case No.:


105/2003,
Manyarara AJ made an order in the following terms:






“…1) Sections18(1), 18(2)
and 18(9) of the Native Administration Proclamation No 15 of 1928
(the Proclamation) and the regulations made under section 18(9)
thereof are declared to be in conflict with the Constitution of
Namibia. Parliament is required to remedy the defect by 30th
June 2005.



2) Until the defect is
remedied, or until the expiry of the time set by this Order,
whichever be the shorter, ss 18(1) and 18(2) of the Proclamation and
the regulations made under s 18(9) of the Proclamation shall be
deemed to be valid.”






In
Government of the Republic of Namibia v The Master of the High Court
& 3 Others Case No 105/2003 on application by the State to
extend the order granted by Manyarara AJ in the Berendt matter supra
, Heathcote AJ made the following order:





1. That the applicant’s
inability to comply with the deadline set by this Court in case no.
105/2003 is hereby condoned;





2. That the time limit set by
this Honorable Court in paragraph 1 of the order in case no 105/2003
is hereby extended to 30th December 2005.”







2
S 18 provides as follows:






(1) All movable property belonging to a Native
and allotted by him or accruing under native law or custom to any
woman with whom he lived in a customary union, or to any house,
shall upon his death devolve and be administered under native law
and custom.







  1. All
    other property of whatsoever kind belonging to a Native shall be
    capable of being devised by will. Any such property not so devised
    shall devolve and be administered according to native law and
    custom.







  1. The
    Administrator may make regulations not inconsistent with this
    Proclamation –








    1. prescribing
      the manner in which the estate of the deceased Natives shall be
      administered and distributed;


    2. dealing
      with the dishersion of natives;






    1. prescribing
      tables of succession in regard to Natives; and




e) generally
for the better carrying out of the provisions of this section.






10) Any native estate which has, prior to the
commencement of this Proclamation, been reported to the Secretary
for South West Africa shall be administered as if this Proclamation
shall apply in respect of every native estate which had not been so
reported.








Government
Notice 70 of 1954 made s 18(9) operative with effect from 1st
August 1950.




3


S 2(a)
states: If a Native dies leaving no valid will, his property shall
be distributed in the manner following:






  1. If the
    deceased, at the time of his death, was –









      1. a
        partner in a marriage in community of property or under-ante
        nuptial contract; or


      2. a
        widower, widow or divorcee, as the case may be, of a marriage in
        community of property or under ante nuptial contract and was not
        survived by a partner to a customary Union entered into
        subsequent to the dissolution of such marriage, the property
        shall devolve as if he had been a European.”







4
In Magrietha Berendt supra (at p9) Manyarara, AJ said:
“Regulation 2(a) relates to the estates of so-called natives
devolving as if the deceased were a “European”. It is apparent
that it is by necessary implication that magistrates have exercised
the power to appoint executors to such estates. There is also no
provision that deals with the powers of magistrates to administer
the estates of black persons, which are to devolve in terms of
customary law. It is again by necessary implication that
magistrates have assumed the power to administer such estates and to
appoint executors therein”
and concluded (at pp 10 and 11).
“Two hurdles stand in the way of Mr. Ndjoze’s contention and
both are insurmountable. The first such hurdle is the established
principle of law that any action not covered by statutory authority
is ultra vires and a nullity. The practice adopted by magistrates
in Namibia in caught. See Skeleton Coast Safaris v Namibia Tender
Board and Others 1993 NR 288 (HC) and Ministry of Agriculture and
Fisheries v Matthews [1949] 2 All ER 724 (KB”.




5
S 12 of 1946 provides:






(1) The surviving spouse of every person who after the
commencement of this Ordinance dies either wholly or partly
intestate, is hereby declared to be an intestate heir of the
deceased spouse according to the following rules:-






a) if the spouses were married in community of property
and if the deceased spouse leaves any descendant who is entitled to
succeed ab intestate, the surviving spouse shall succeed to
the extent of a child’s share or to so much as together with the
surviving spouse’s share in the joint estate, does not exceed six
hundred pounds in value (which ever is the greater);



b) if the spouses were married out of community of
property and if the deceased spouse leaves any descendant who is
entitled to succeed ab intestate, the surviving spouse shall
succeed to the extent of a child’s share or to so much as does not
exceed six hundred pounds in value (whichever is the greater);



c) if the spouses were married either in or out of
community of property, and the deceased spouse leaves no descendant
who is entitled to succeed ab intestate, but leaves a parent
or a brother or sister (whether of the full or half blood) who is
entitled so to succeed, the surviving spouse shall succeed to the
extent of a half share or to so much as does not exceed six hundred
pounds in value (whichever is the greater);



d) in any case not covered by paragraph (a), (b), or
(c) the surviving spouse shall be the sole intestate heir.






(2) For the purposes of this Ordinance any relationship
by adoption under the provisions of the Adoption of Children
Ordinance, 1927 (Ordinance No. 10 of 1927 (1) shall be equivalent to
blood relationship.









6
Article 86 of the Constitution provides that the powers and
functions of the Attorney-General shall be inter alia:





“(b) to
be the principal legal advisor to the President and Government;


(c) to
take all action necessary for the protection and upholding of the
Constitution.”




7
Baxter, Lawrence Administrative Law: Legal Regulation of
Administrative Action in South Africa
1994 (Juta), 404 – 405.