Nenkwaya and Another v Nenkwaya and Another (A 262/2008) [2010] NAHC 11 (17 January 2010);

Group

Full judgment







SUMMARY REPORTABLE

CASE NO.: A 262/2008





IN THE HIGH COURT OF NAMIBIA



In the matter between:



ANNA NEKWAYA AND ANOTHER v SIMON NEKWAYA (Herein cited in his personal capacity and in his capacity as new executor in the estate of the late Andreas Nekwaya) AND ANOTHER





PARKER J et MARCUS AJ





2010 February 17

____________________________________________________________________________



Practice - Declaratory order – Power of Court to grant in terms of the High Court Act, 1990 (Act No. 16 of 1990) – Nature of the Court’s power explained – Court finding applicants have satisfied requirements for the grant of the relief – Consequently, Court exercising its discretion in favour of granting declaratory order.



Land Law - Colonial law regarding land use and ownership – Separate systems of land use and ownership applied to whites and blacks – Provenance of system of permission to occupy (PTO) surveyed – Court finding that PTO applied to blacks over land in so-called homelands, while freehold and lease applied exclusively to whites in respect of land outside ‘homelands’ – Court finding communal land system successor to homeland system – Court finding that as a general rule PTO did not automatically expire upon death of holder thereof – Court finding further that the right created by PTO granted by a local authority council was capable of forming part of estate of holder thereof upon his or her death and therefore inheritable.



Land Law - Lease – Essentialia of lease agreement explained – In instant case Court holding that the purported agreement entered into between the 1st respondent and the 2nd respondent and filed of record is not a lease.



Statute - Communal Land Reform Act, 2002 (Act No. 5 of 2002) – Effect of on communal land situated within boundaries of a local authority established in terms of the Local Authorities Act, 1992 (Act No. 23 of 1992) – Such communal land ceasing to form part of communal land area and therefore ceasing to be communal land – Effect of on persons holding PTO in respect of such land, particularly where substantial improvements in the form of buildings have been effected on such land – Court finding that permission to occupy land with option to purchase granted to a person can be inherited as part of his or her estate.



Administration - Executor – Court finding that executor stands in position of

of estates trust and must therefore administer and distribute estate in utmost good faith.



Administration - Court finding that if a successor executor is aggrieved by

of estates the executorial act of a late executor, the successor executor may approach a competent court for appropriate relief – Court setting aside the executorial act of a successor executor which conflicted with the executorial act of the late executor.



Administration - Executor appointed by Magistrate – Court finding that such

of estates executor must administer and distribute estate in proper accordance with the laws under which he was appointed – Court granting applicants’ relief that the executor be ordered to file with the Magistrates Court full account, showing the manner in which the estate has been administered and distributed.



Held, that land which was previously communal land but which later falls within the boundaries of a local authority council is subject to the Local Authorities Act, 1992.



Held, further, that the heirs and descendents of a deceased PTO (permission to occupy with option to purchase) granted by a local authority council are entitled to inherit the legal interest in such PTO, particularly where improvements have been effected on the land in question.



Held, further, that the estate of a person who has died intestate before the coming into force of the Estates and Succession Amendment Act, 2005 (Act No. 15 of 2005) and administered in terms of the Native Administration Proclamation, 1928 (Proclamation 15 of 1928) must be administered and distributed as if Act No. 15 of 2005 has not been passed.



Held, further, that the executor of such estate must administer and distribute the estate in proper accordance with Proclamation 15 of 1928 and the Regulations framed thereunder in terms of s.18 (19) thereof, the Application of the Provisions of Section 18 of Proclamation 15 of 1928, G.N 70 of 1954, and the Intestate Succession Ordinance, 1946 (Ordinance No. 12 of 1946).



Held, further, that the executorial act of a previous or late executor may only be set aside by the order of a competent court of law, on an application made to the court in that behalf.

REPORTABLE

CASE NO.: A 262/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

ANNA NEKWAYA 1ST APPLICANT

TANGI NEKWAYA 2ND APPLICANT

(Herein assisted by their

natural mother and guardian

(as far as need be))



and

SIMON NEKWAYA 1ST RESPONDENT

(Herein cited in his personal

capacity and in his capacity as

new executor in the estate of the

late Andreas Nekwaya)

THE MUNICIPAL COUNCIL OF THE

MUNICIPALITY OF ONGWEDIVA 2ND RESPONDENT



CORAM: PARKER J et MARCUS AJ

Heard on: 2009 November 23

Delivered on: 2010 February 17

___________________________________________________________________________

JUDGMENT

PARKER J:

[1] In this matter the applicants, who are minors, are assisted by their mother and guardian, Ms Elizabeth Malju (Malyu); and they are represented by counsel, Mr. Vaatz. The 1st respondent, who is cited in his personal capacity and also in his capacity as the executor in the estate of the late Andreas Johannes Nekwaya, is represented by Mr. Namandje. The 2nd respondent is the Municipal Council of Ongwediva, and there has been no appearance for it.



[2] The applicants have brought application by notice of motion (‘as amended’), moving the Court to grant a declaratory order –



(1 (a)) that the 1st and 2nd applicants are the sole and exclusive joint owners of Stand 063 Ongwediva.

And in the alternative, the applicants have moved the Court to grant declaratory order –



(1) (b) that the 1st and 2nd applicants are the only persons having a ‘permit to occupy (PTO)’ in respect of Stand 063 Ongwediva and thereby are the only persons in whose favour the 2nd respondent should register ownership of Stand 063 Ongwediva once registration of ownership commences in the Deeds Office of Windhoek in respect of the area in which Stand 063 Ongwediva is situated.



[3] Further, the applicants have moved the Court to grant an order in the following terms:

  1. That the 2nd respondent is ordered to record in its records that the 1st and 2nd applicants are the correct and only persons presently holding a PTO (permit to occupy) and thus are entitled to be registered as joint owners of Stand 063 Ongwediva and that the 2nd respondent will not change such entries in its records without prior written notice to, and consent by, the 1st and 2nd applicants or their natural guardian or legal representative first having been obtained.

  2. That the 1st respondent is ordered to desist from claiming ownership and/or a right to occupation or any other right to the use of Stand 063 Ongwediva;

  3. The 1st respondent is ordered to prepare an account reflecting all monies that he received from any tenant in the form of rental or otherwise in respect of Stand 063 Ongwediva and the buildings thereon and is further ordered to pay over to the 1st and 2nd applicants such funds received by him from the date of the agreement in terms of which Stand 063 Ongwediva, was awarded to the 1st and 2nd applicants by the previous executor of the late Andreas Johannes Nekwaya, namely Martin Nekwaya and date hereof;

  4. That the 1st respondent is ordered to file a comprehensive estate account in respect of all assets under his control as executor that previously belonged to his father, the late Andreas Johannes Nekwaya, showing in such account how he proposes to distribute the assets to the children of the late Andreas Johannes Nekwaya.



[4] The applicants have also moved for a costs order and for further and/or alternative relief. The 1st respondent has moved to reject the application. There is no appearance by the 2nd respondent.



[5] The following facts are at the background of the application. The 1st and 2nd applicants are the biological children of the late Andreas Johannes Nekwaya. Malju, in the founding affidavit, states that she is the biological mother of the applicants and they were born to Andreas Nekwaya ‘with whom I had a liaison for a period of 10 years, namely from 1993 until the date of his (Andreas Nekwaya’s) death, 11 May 2001.’ It was during this ten-year sexual liaison that, according to Malju, the 1st and 2nd applicants were born. While the applicants are Andreas Nekwaya’s s children, I find on the papers that the 1st respondent is also a child of Andreas. The 1st respondent’s mother is Cecelia Junias, and she married Andreas Nekwaya out of community of property in 1995. The 1st respondent was born on 8 September 1982. I assume, without deciding, that the 1st respondent was legitimized by that marriage. In this regard, I pause to note that while the 1st respondent’s mother was married to Andreas Nekwaya, the applicants’ mother only had a sexual liaison with Andreas Nekwaya during which period of such liaison the applicants were born.



[6] By a letter of ‘Appointment as Executor’, dated 18 May 2001 and issued by the Magistrate of the Magistrates Court, Oshakati, Martin Nekwaya was ‘appointed executor to administer the estate of Andreas Nekwaya’. In this capacity as such, Martin Nekwaya ‘awarded’ the aforementioned Stand 063 Ongwediva (the property) over to the 1st and 2nd applicants. This, Martin Nekwaya did by a contract that he concluded with the applicants, represented by their natural mother and guardian Malju (Malyu).

[7] Martin Nekwaya died on 10 April 2005; and thereafter, by letter of ‘Appointment as Executor’ issued by the Magistrate of the Magistrates Court Oshakati and dated 6 January 2006, the 1st respondent was appointed executor, ‘to administer the estate of the late Andreas Nekwaya’.



[8] Events that occurred after 6 January 2006, that have a direct bearing on the instant case are as follows. After being appointed executor as such, the 1st respondent proceeded to get the 2nd respondent to issue to him a document (Annex ‘F’ to the applicants’ notice of motion, as amended), intituled –



Right to Occupy Council Immovable Properties (sic) with Option to Purchase.

Memorandum of Lease made and entered into between Ongwediva Town Council (i.e. the 2nd respondent)

And Simon Nekwaya (1st respondent).



[9] The immovable property referred to in the said document is described as ‘Erf Plot 2 Old Ongwediva, measuring 2100 square metres’. In terms of the document, the 1st respondent is permitted to occupy Plot 2 Old Ongwediva with effect from 10 January 2006 ‘for the purposes of trading site’ (whatever that means). I must point out at the outset that although the 1st respondent is described as ‘the Lessee’ in the document, the property regime created by the document cannot by any stretch of legal imagination pass as a lease. The essential terms of a contract of lease, are an undertaking by the landlord (lessor) that the tenant (lessee) shall have the use and enjoyment of the property thereby leased for a limited period of time (i.e. a period certain) in consideration for an undertaking by the lessee to pay a certain rent. Thus, payment of rent and period certain of the duration of the contract are essential elements of a lease. (Kleyn and Boraine, Silberg and Schoeman’s The Law of Property (3rd edn.): p 481; Burn, Cheshire’s Modern Law of Property (11th edn.): p 372; Bornann v Griffith [1930] 1 Ch. 493. It is the substance of the main intention of the parties and not the name that they give to their agreement that matters (Kessler v Krogmann 1908 TS 290 at 297).



[10] In casu, the agreement entered into between the 1st respondent and the 2nd respondent only grants the 1st respondent ‘the right to occupy’ with an option to purchase. The document itself says so. Additionally, it is not disputed that the property, that is, Plot 2 Old Ongwediva, is Stand 063 Ongwediva in respect of which Andreas was given permission to occupy (PTO), as aforesaid. Hence, Stand No. 063 or Plot 2 Old Ongwediva is hereinafter referred to as ‘the property’.



[11] The provenance of the system of PTO lies embedded in the apartheid past of Namibia’s colonial history regarding land use and ownership patterns. Whites were given freehold to the land; and government land could be leased to whites. Thus, under that system of land tenure, whites were free to buy and sell any piece of land. In contrast, land held by blacks in the so-called ‘homelands’ could not be sold or purchased freely (United Nations Institute for Namibia, Namibia: Perspectives for National Reconstruction and Development (1988 reprint): pp. 112-3).



[12] The aforementioned differentiation, based on skin colour, of land use and ownership between whites and blacks had legislative blessing. According to regulation 1 of the Bantu Areas Land Regulation, made under s. 25(1) of the Bantu Administration Act, 1927 (Act No. 38 of 1927), read with s. 21(1) and 48(1) of the Bantu Trust and Land Act, 1936 (Act No. 18 of 1936),



permission to occupy’ – means permission in writing granted or deemed to have been granted in the prescribed form to any person to occupy a specified area of Trust land for a specified purpose; …



[13] It is significant to note also that according to the same regulation 1,



owner’ in relation to land means the person in whose name such land is registered in any deeds office in freehold; …



[14] Thus, in the scheme of the applicable colonial law, ‘ownership’ of land was the exclusive preserve of whites, and ‘permission to occupy’ land applied exclusively to blacks. By the South African Bantu Trust in South West Africa Proclamation, 1978 (AG 19 of 1978), the administration of the South African Bantu Trust was transferred to the Administrator-General of South West Africa. A significant effect of AG 19 was that the system of PTO that applied to Bantus or blacks in South Africa became applicable to blacks in South West Africa. Thus, in South West Africa like in South Africa, blacks could only be granted ‘permission to occupy’ land in the so-called homelands, as opposed to ‘ownership’ of land. ‘Homeland’ was part of land north of the Police Zone, as defined in the First Schedule to the Prohibited Areas Proclamation, 1928 (Proclamation 26 of 1928). It is not disputed that the property in these proceedings was situated in Ovamboland which lay in such Zone. It is also not disputed that the property was part of Ovamboland which became communal land in term of s. 15(1) (a) of the Communal Land Reform Act, 2002 (Act No. 5 of 2002).



[15] I have taken some time to survey briefly the salient tenets of land ownership and tenure in Namibia for a good reason. It is to show that the PTO that was granted to Andreas Nekwaya did not amount to freehold tenure. Andreas was black and the land in respect of which the PTO was granted was in the homeland of colonial years. But that is not the end of the matter. Amendments to the law after Independence are crucial in the determination of the present application. To start with; the land which was in the so-called homeland area is now communal land area in terms of the Communal Land Reform Act, 2002 (Act No. 5 of 2002).



[16] The next port of call is therefore a consideration of s. 15(2) of the Communal Land Reform Act, 2002, read with the Local Authorities Act, 1992 (Act No. 23 of 1992), particularly s. 3 thereof which deals with declaration of areas of local authorities as municipalities, towns or villages, and existing municipalities. Section 15 of the Communal Land Reform Act, 2002 provides:



(2) Where a local authority area is situated or established within the boundaries of any communal land area the land comprising such local authority area shall not form part of that communal land area and shall not be communal land.



[17] The effect of s. 15(2) of the Communal Land Reform Act, 2002, read with the Local Authorities Act, 1992 (particularly s. 3 thereof) is that the property is no longer communal land: it lies in the boundaries of the 2nd respondent. That much both counsel agree. It is also not disputed that, as I have mentioned previously, the property which was Stand 063 is now Plot 2 Old Ongwediva; and it has been as such since the property ceased to be communal land and became land within the boundaries of the 2nd respondent.



[18] Additionally, I have set out previously the essentialia of a lease, also for a good reason. It is to come to the inexorable conclusion that the aforementioned ‘Right to Occupy Council Immovable Properties (sic) with Option to Purchase’ (Annexe ‘F’ to the applicants’ notice of motion) did not create a lease in terms of our law; and so this Court takes no cognizance of it, inasmuch as the 1st respondent and the 2nd respondent want to pass it around as a lease. Accordingly, I hold that no agreement of lease in respect of the property exists between the 1st respondent and the 2nd respondent. But more important is the following. After the property had fallen into the boundaries of the 2nd respondent, the 2nd respondent wrote a letter in the following terms to the first and late executor of the estate of Mr. Andreas Nekwaya, Mr. Martin Nekwaya:



This is to confirm that Mr. A Nekwaya was granted a permission to occupy with option to purchase the unnumbered (sic) plot where he has constructed his shops, until the time the Town Council complete (sic) its programme of planning and survey.

The plot is within the proclaimed area governed by the Town Council of Ongwediva.

In accordance with the Town Planning Scheme the evaluation on the property will only be done once the proclamation process of the Extension is finalised.

Any assistance accorded to the above plot shall have our blessing for good development of our Town since they are allocated at the inter-section road.





[19] Although the letter is not a model of eloquent draftsman ship, it does shed light on the nature of the right given to the deceased Mr Andreas Nekwaya. In terms of the first paragraph of the letter the deceased was granted permission to occupy the property, with an option to purchase the unencumbered (the word used is “unnumbered”, but it is clear from the context that this is a typographical error) property, once the Town Council completed the surveying of the area. The permission to occupy was thus coupled with an option to purchase the unencumbered property, upon the fulfilment of a future event; that is, the surveying and proclamation of the area where the property is situated.

[20] The deceased and the 2nd respondent thus entered into an agreement that is subject to a suspensive condition. A suspensive condition suspends the operation of the contract, or the vesting and taking effect of the benefit until the condition is fulfilled. Pending fulfilment of the condition a legal relationship exists between the parties that is recognized and protected by law. Importantly for our purposes, the rights and duties arising from the contract are vested and are transmissible on the death of one of the parties. The promissor (in this case 2nd respondent) cannot do anything that harms or destroys the subject-matter. Nor can it transfer the subject-matter to third parties. Should it attempt to do so the promisee (in this case the deceased) or after his death his estate is entitled to stop the promissor from doing anything that would breach the contract pending fulfilment of the condition. Once the condition is fulfilled the effect is retroactive, meaning that the rights and duties of the parties are determined as from the initial agreement. (See H. R. Hahlo et E. Kahn, The South African Legal System And Its Background: p. 89-90.)



[21] Applying the law to the facts, it follows that the deceased’s right to occupy and to purchase the property, once the area is surveyed, was not extinguished by his death and was transferrable to his estate, particularly in view of the fact that substantial improvements had been effected on the property by the deceased before his death; and, therefore, the executor of deceased’s estate could validly assign that right to the beneficiaries of that estate. Although the property is now situated in the boundaries of the 2nd respondent by operation of statute, as aforesaid, the 2nd respondent could not do anything that has the effect of destroying the subject-matter, nor could the 2nd respondent transfer any right or interest in the property to third parties pending the fulfilment of the condition. The 1st respondent’s contention that the first and late executor could not pass any right in the property to the applicants ignores the legal nature of the contract between the deceased and the 2nd respondent and is, with respect, wrong. The aforementioned conclusion, therefore, also effectively buries Mr. Namandje’s submission that the property was assigned by the 2nd respondent to the 1st respondent as a leased property not in the latter’s capacity as executor of Andreas Nekwaya’s estate but in his private capacity.



[22] Accordingly, the previous executor’s transfer to the applicants (who are the children of the deceased) of the right to occupy the property with the option to purchase it cannot be faulted on the basis that the right was not inheritable. There is the further point raised by counsel on behalf of the applicants, which I accept, that the previous executor, as aforesaid, had completed the administration of the deceased’s estate as respects the applicants as beneficiaries. Therefore, in my view, upon his appointment as executor when the previous executor (Martin Nekwaya) passed away, the 1st respondent qua successor executor could not simply by the stroke of a pen undo the executorial acts by the previous executor in order to benefit himself thereby. If the 1st respondent had been aggrieved by the executorial acts of the previous executor respecting the distribution of the estate of Andreas Nekwaya to the applicants, the 1st respondent ought to have approached a competent court of law for appropriate relief.

[23] Keeping all the aforegoing analysis and conclusions in my mental spectacle, I proceed to consider the declaratory relief that the applicants have applied for.



[24] The power of this Court to grant declaratory orders is granted by s.16 of the High Court Act, 1990 (Act No. 16 of 1990) (Jacob Alexander v Minister of Home Affairs and Immigration and others Case No. A 155/2009 (judgment on 9 June 2009) (Unreported) at p. 4). Section 16 provides:



(d) … (the High Court) in its discretion, and at the instance of any interested person, (has the power) to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination.



[25] On the interpretation and application of s. 16 (d) of the High Court Act, 1990, I stated as follows in Jacob Alexander v Minister of Home Affairs and others supra at p. 4:



Interpreting and applying a similar provision, which contains identical words as the Namibian provision quoted above, in s 19 (1) (a) of South Africa’s Supreme Court Act, 1959 (Act No. 59 of 1959) in Government of the Self-Governing Territory of Kwazulu v Mahlangu 1994 (1) SA 626 (T), Eloff, JP stated at 634B, ‘The important element in this section is that the power of the Court is limited to a question concerning a right. The nature and scope of the right might be inquired into, but in the absence of proof of such a right, or at least a contention that there is such a right, the Court has no jurisdiction.’ (Emphasis added)



[26] On the papers and taking into account the conclusions on the facts and the law and the reasoning, I find that the applicants have proved their right to the property or a contention that there is at least such a right. Accordingly, I think I should exercise my discretion in favour of granting the declaratory order to the extent set out in the order infra.



[27] In the result, I make the following orders:



(1) The permission to occupy with option to purchase Stand 063 Ongwediva (or Plot 2 Old Ongwediva) granted to the 1st respondent in his personal capacity or otherwise by the 2nd respondent and any purported lease agreement entered into between the 1st respondent in his personal capacity or otherwise and the 2nd respondent respecting the said Stand 063 (or the said Plot 2) are declared null and void ab initio.



(2) The 1st and 2nd applicants are the only persons having a ‘permit

to occupy (PTO)’ in respect of Stand 063 Ongwediva and thereby

are the only persons in whose favour the 2nd respondent should register

ownership of Stand 063 Ongwediva when registration of ownership

commences in the Deeds Office of Windhoek in respect of the area in

which Stand 063 Ongwediva (or Plot 2 Old Ongwediva) is situated.

(3) The 1st respondent must desist from claiming ownership of or right of occupation of, or any other right to, Stand 063 Ongwediva (or Plot 2 Old Ongwediva).



(4) The 1st respondent must, in his capacity as executor of the estate of Andreas Johannes Nekwaya, prepare an account, showing all monies he has received or he is to receive from any person as rental or for any other reason in respect of the said Stand 063 Ongwediva (or the said Plot 2 Old Ongwediva) and the buildings thereon, and further, the 1st respondent must pay over to the applicants such funds received by him with effect from the date he was appointed as such executor.



(5) The 1st respondent must, not later than 8 March 2010, file with the Magistrates Court, Oshakati, a full estate account in respect of any property or any other asset under his control and administration as executor of the estate of Andreas Johannes Nekwaya, showing in such account the manner in which he has administered the estate and has distributed such property or assets, if he has done those, including funds referred to in paragraph (4) of this order.

(6) The 1st respondent must pay the applicants’ costs of this suit.



___________________________

PARKER J



I agree.



____________________________

MARCUS AJ






COUNSEL ON BEHALF OF

THE APPLICANTS: Mr A Vaatz


Instructed by: A Vaatz & Partners



COUNSEL ON BEHALF OF

THE 1ST RESPONDENT: Mr Sisa Namandje


Instructed by: Sisa Namandje & Co



COUNSEL ON BEHALF OF

THE 2ND RESPONDENT: No appearance



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