Court name
High Court
Case name
Tjiundikua and Another v Ovambanderu Traditional Authority and Others
Media neutral citation
[2010] NAHC 196













15




CASE NO.: A 336/2010



IN THE HIGH COURT OF
NAMIBIA



In the matter between:










ERASTUS
TJIUNDIKUA
…...............................................................................................FIRST
APPLICANT



ZEBALD HIMUEE
TJITUKA
….....................................................................................
SECOND
APPLICANT











and










OVAMBANDERU
TRADITIONAL AUTHORITY
…..........................................................
FIRST
RESPONDENT



KOVERA NGUVAUVA
…........................................................................................SECOND
RESPONDENT


KILUS
NGUVAUVA
…...............................................................................................THIRD
RESPONDENT



RIPUREE TJOZONGORO
…....................................................................................FOURTH
RESPONDENT



INSPECTOR-GENERAL
OF THE NAMIBIAN POLICE
…..................................................
FIFTH
RESPONDENT



THE COUNCIL OF THE
MUNICIPALITY OF OKAHANDJA
…..........................................SIXTH
RESPONDENT









CORAM: MULLER J







Heard on: 24 November
2010 Delivered on: 26 November 2010











JUDGMENT



MULLER J



[1] On 5 November 2010
the two Applicants launched an application on an urgent basis for
the following relief as contained in their Notice of Motion:



"1.
Condoning
the non-compliance with the Rules of this Honourable Court, and
hearing the application on an urgent basis as envisaged by Rule 6
(12) of the aforesaid Rules.



2. That a Rule Nisi
be issued, calling upon the respondents to show cause,
on a day
to be arranged with he Registrar, why an order should not be
granted
in the following terms:



2.1. Interdicting
and restraining the first, second, third and fourth respondents and
any member(s) of the first respondent's traditional community from
conducting a burial service and burying the late Mr Peter Nguvauva
at the scared burial ground of the Ovambanderu Traditional
Community, situated at Erf 458, Khimemua Street, Okahandja within
the municipal area of the sixth respondent;



2.2. Directing that
the sixth respondent not take any steps to assist the first, second
third and fourth respondents and/or members of the Ovambanderu
Traditional Community from clearing or cleaning the grave at the
sacred burial ground of the Ovambanderu Traditional Community,
situated at Kahimemua Street, Okahandja within the municipal area of
the second respondent.



3. That
sub-paragraphs 2.1 and 2.2 supra operate with immediate effect as
an
interim order pending the finalization of the application for review
brought by the applicant in separate proceedings in the above
Honourable Court under case number A 254/2010, launched in August
2010, which matter is still pending.



4. That the fifth
respondent be authorized and directed to serve this order on the
respondents by having it announced at the sacred burial ground of
the Ovambanderu Traditional Community, situated at Kahimemua Street,
Okahandja within the municipal area of the second respondent.



5. Ordering that
the costs of the application be paid by the first to fourth
respondents, jointly and severally, the one paying the other to be
absolved.



6. Further and/or
alternative relief."











[2]
This application was launched after the normal court hours. Although
no papers were filed on behalf of the respondents, they were
apparently represented by their legal representatives, who objected
in
limine
to
the application on the basis of urgency and the applicants'
locus
standi.
Swanepoel
J heard arguments on these two points
in
limine,
whereafter
both points were rejected, but the respondents were permitted to
file answering affidavits and the applicants' to reply thereto. The
application was consequently postponed to be heard on 24 November
2010 and deadlines were determined for the filing of further
affidavits and heads of argument on behalf of both parties.



[3]
Both parties complied with the court order in respect of the times
provided therein for the filing of the documents referred to and the
court heard oral arguments presented by the legal practitioners of
both parties. The applicants were presented by Mr P. Kauta and the
Respondents by Adv T.J. Frank SC, assisted by Dr S Akweenda,
respectively. In addition to the applicants' heads of argument
supplementary heads were filed by the applicants. The points
in
limine
being
disposed of on 5 November 2010, the merits of the application had to
be adjudicated upon. The applicants, however, also objected to the
authority of the deponent of the respondents' answering affidavit.
That issue has been argued and will be dealt with hereinafter.











[4] This application
comes before this court with a history. I shall briefly refer to the



historical facts which
are common cause.




  • After the death of
    Chief Munjuku II the late Peter Nguvauva (the deceased) was
    appointed as acting paramount chief of the Ovambanderu Traditional
    Community by one part of that community, but another part of that
    community did not recognise the deceased as a successor and his
    right to be so appointed; they supported Keharanjo II Nguvauva.
    However, the deceased apparently acted until his death as acting
    Paramount Chief;




On 4 October 2010
Peter Nguvauva passed away;




  • The division within
    the Ovambanderu Traditional community become even more pertinent
    upon the death of the deceased, with the crucial issue of where he
    should be buried;





  1. According to the
    wishes of one part of the community who supported the deceased as
    head of the Ovambanderu Community during his lifetime, he should be
    buried at the scared burial ground in Okahandja where two other
    former Paramount Chiefs were buried, namely Paramount Chief K.
    Kahimemua and Paramount Chief Munjuku II Nguvauva. The other group
    vehemently opposed this and remains adamant that the deceased was
    neither a paramount Chief nor a hero and does not deserve to be
    buried there;



  2. A review, instituted
    in August 2010, case no. A 254/2010, is currently pending before
    this court in respect of the leadership issue of the Ovambanderu
    Traditional Community;




The constitution of
the Ovambanderu Traditional community does not provide for the
position of an acting Paramount Chief;



An
application was launched and a
Rule
Nisi
obtained
on 16 October 2010 by Keharando II Nguvauva, alleging that he is the
Paramount Chief, in order to obtain an interdict to prevent the
burial of the deceased at the Okahandja sacred burial grounds. This
Rule
Nisi
was
opposed and a preliminary point taken was to that applicants'
locus
sitandi.
On
4 November 2010 Parker J, discharged the
Rule
Nisi
on
the basis that the applicant, namely Keharando II Nguavauva, had no
locus
standi
to
bring that application as he was not the Paramount Chief as he
alleged. The applicant was ordered to pay the costs of that
application;



The result was that
the burial issue was not resolved and the respondents indicated that
the deceased would be buried the following Sunday at the Okahandja
sacred burial grounds;



On the next day the
Keharando Group, with two new applicants, launched the current
application to stop the intended burial on the following Sunday at
Okahandja.











[5] I have listened to
the arguments presented on behalf of both parties. Please allow me
at



the outset to make the
following remarks:




  • It is regrettable
    that this court should be burdened with an issue which has its
    roots in a dispute which the Ovambanderu Traditional Community
    could not resolve for so many years;




It is tragic that the
real dispute amongst groups of this community has led to an
unreasonable delay to bury the deceased;




  • This whole issue has
    obviously harmed a very prominent and proud traditional group in
    Namibia, namely the Ovambanderus, as a whole and not only one part
    of it.




Having said this, the
court does recognise its authority and obligation to adjudicate upon
disputes between citizens of Namibia to prevent citizens or groups
of citizens from taking the law in their own hands. That will not be
tolerated and so will no violence be tolerated in the Republic of
Namibia. This court operates in terms of the law, its Rules and how
the law has been interpreted in various previous applicable court
decisions. This matter will be adjudicated on those established
principles, which will necessarily have the effect that only one
party will be successful and will probably be entitled to its costs.











Authority











[6]
The alleged lack of authority by the deponent Gerson Katjiruato
oppose the application and depose to the main affidavit on behalf of
the respondents will be dealt with first. This is really a non-issue
and can quickly be disposed of. The first complaint is that the
resolution annexed by the first respondent to the affidavit of
Gerson Katjirua is defective, because it relates to the appointment
of an acting chief more than two years ago. The respondents concede
that is the wrong resolution. Secondly, a resolution handed in
during the hearing on 5 November 2010 with the same date mandated
another person than the deponent. Thereafter a further resolution
purportedly taken on 6 November 2010 was filed on 15 November 2010.
The applicants consequently want the opposing affidavit struck.











[7]
In several court decisions it has been held that the question
whether the deponent to an affidavit is authorized to depose to the
affidavit is irrelevant. It is the institution of proceedings and
the prosecution thereof that need to be authorized.
(Duntrust
(Pty) Ltd v H. Sedlack t/a GM Refrigeration
2005
NR 147 (HC) at 148 D-J). It is trite that an artificial person, a
legal
persona,
can
only bring an application through its duly authorized officials. As
such that legal
persona
has
the onus to prove that the application is duly authorized, as well
as the authority of the deponent of the relevant affidavit deposing
on its behalf.
(National
Union of Namibia Workers v



Naholo
2006
(2) 659 (HC) at 669 C-D). A court considers whether enough has been
placed before it to warrant the conclusion that it is the artificial
person who is applying and not anybody else who is not authorized to
do so. It must also be remembered that a cost order may be
impossible to enforce against an artificial person if it did not
authorise someone to act on its behalf.
(Mall
(Cape) (Pty) Ltd v Merino Ko-operasie Bpk
1957
(2) SA 347 (C) at 350 E-F;
Otjozondjupa
Regional Council v Dr Ndahafa Nghifindaka and 2 Others,
case
no. LC 1/2009, delivered on 22 July 2009 at p10 [18]). The legal
position where a person brings an application on behalf of an
artificial person has been summarised in the
Otjozondjupa
Regional Council
case,
supra, in [21] at p12-13.











[8]
In this matter the artificial person, namely the first respondent
was brought before court by an application of the applicants on 5
November 2010. A resolution was filed authoring the deponent to the
respondents' affidavit on 6 November 2010 to represent it. Those
decisions were taken by the Supreme Council of first respondent.
Although the applicants apparently dispute the existence of the
Supreme Council and its ability to take valid decisions, it is
submitted (and apparently conceded by the applicants) that the same
Supreme Council did take decisions during the impasse' or
interregnum
e.g.
in respect of the alleged moratorium and the burial of the previous
chief, Chief Munjuku II at Okahandja. The fact that there were two
resolutions taken on two consecutive days is neither here or there.
The deponent, Gerson Katjirua, was authorised to represent the first
respondent in opposing the application.



[9]
In the circumstances I am satisfied that enough evidence was placed
before the court to prove the authority of Gerson Katjitura to
oppose the application and to depose to an affidavit on behalf of
the first respondent. I also recognise that apart from the first
respondent, the 2
nd,
3
rd
and
4
th
respondents
rely on the affidavit of Gerson Katjirua and confirm under oath what
he has deposed to.











Supplementary
heads
-
The
Res judicata argument











[10]
The gist of the submission contained in the supplementary heads of
the applicants is that Parker J has already decided the issue of the
existence and legal ability of the Supreme Council to take
decisions, an issue relied on by the respondents. That issue is
according the applicants
res
judicata.











[11]
The requirements for a defence of
res
judicata
have
been discussed in several textbooks and court cases. In the
authoritive work of
Herbstein
and van Winsen
(now
under new authors)
The
Civil Practice of the High Courts of South Africa,
volume
1, the following is stated on p609:
"A
defendant may plead
re
judicata
as
a defence to a claim that raises an issue disposed of by a judgment
in
rem
and
also as a defence based upon a judgment
in
personam
delivered
in a prior action between the same parties, concerning the same
subject-matter and founded on the same cause of action"
(Horowitz
v Brock and Others
1988(2)
SA 160 (A) at 178 H-I)



Bafokeng
Tribe v Impala
Ltd
1999(3) SA 517 (B) followed what was stated by the South African
Court of Appeal in the case of
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995(1)







SA 653 (SCA) to the
effect that :



"...the
essentials for the
exceptio
res judicata
are
threefold, namely that the previous judgment was given in an action
or application by a competent court (1) between the same parties,
(2) based on the same cause of action (ex
eadem
petendi causa),
(3)
with respect to the same subject-matter, or thing (de
eadem
re.)
Requirements
(2) and (3) are not immutable requirements of
res
judicata."



It
must be an issue that was determined on the merits. In
African
Farmers and Townships v







Cape
Town Municipality
1963
(2) SA 555 (A) Steyn CJ said the following at 562 A in respect of





res
judicata:



"The parties
are the same, and the appellant in the action it has instituted,
seeks the same order as in the original proceedings, i.e. an order
declaring the notice of expropriation invalid"



The learned Chief
Justice then went on to analyse the requirements at the hand of old
writers like Voet and Huber to establish the legal position in Roman
and Roman-Dutch law and concluded at 562D:



"
The Rule appears to be that where a court has come to a decision
on
the merits
of
a question in issue, that question, at any rate as a
cansa
petendi
of
the same thing between the same parties, cannot be resuscitated in
subsequent proceedings."


(My
emphasis)



A
Judgment
in
rem
is
conclusive against the whole world.
Koster
Kodperatiewe Landbou Maatskapy Bpk v Wadee
1960(3)
SA 197 (TPD) at 199G;
Tshabalala
v Johannesburg City Council
1962
(4) SA 367 (TPD) at 368H - 370A) In the
Tshabalala
case
examples of decisions
in
rem
are
provided. These include status issues including matrimonial status,
insolvency, expelling a member of a profession, declaring a person
mentally disordered, presumption of death and paternity issues
(p369A). There are also other issues mentioned, i.e. the validity of
a law. In the case of
Liley
and Another v Johannesburg Tirf Club and Another
1983(4)
SA 448 (WLD) Goldstone J stated at 550H:



"The
exceptio
res judicata
is
a form of
estoppel
and
means that, where a final judgment is delivered by a competent
court, the parties to that judgment or their privies (or, in the
case of a judgment
in
rem,
any
other person), are not allowed to place in issue the correctness of
that judgment. This rule is principally founded upon the public
interest: Le Roux Ander v Le Roux 1967(1) SA 446 (A) at 46H."
Goldstone
J also referred with approval to the well known statement in the old
case of Bertram v Wood 10 SC 177 at 180 to the effect that
res
judicata
induces
a presumption of the correctness of a previous judgment based on the
requirement of public policy in order to curb long drawn-out
litigation. Furthermore, Goldstone J said that a subsequent appeal
does not affect the finality of a judgment if it is final in effect
(p552 D-G). In
National
Sorghum Breweries v International Liquor Distributors
2001(2)
SA 232 (SCA) the South African Court of Appeal rejected the doctrine
of issue estoppels in this regard.



[12]
The applicants' submission in this regard is wrong and has no
substance at all. Firstly, the parties in the two applications are
not the same. That is a requirement for a decision of
res
judicata.
Parker
J's decision cannot be regarded as a judgment
in
rem.
Secondly,
the question



(cause
of action) that arises must be the same. That is not so in these two
applications. The applicant in the first application alleged that he
is the designated paramount chief of the Ovambanderus and brought
the application and sought relief on that basis. Parker J decided
only the point taken
in
limine
by
the respondents in that application, namely that the applicant was
not the paramount chief and did not have
lucus
standi
to
bring the application. The learned Judge did not consider the
merits, neither is that a final judgment. The court considered the
existence of the Supreme Council in that light. Anything more that
the Judge has said is
obiter.
The
question to be determined in this issue is not the same as in the
first application. Thirdly, in his judgment Parker J makes it
abundantly clear that his decision is based on that application.















[13]
In all the circumstances the belatedly
Res
judicata
point
has no merit and is rejected.











Type
of relief











[14] In order to
decide what court's approach to this application and the relief
craved, should be, it is of paramount importance to determine what
the type of relief does the applicants seek, namely whether it is
relief of a final or temporary nature.











[15]
At first blush it appears to be an interim interdict, but when the
relief sought is analysed, it is evident that the applicants in fact
seek a final order. This is made absolutely clear in prayer 3 of the
Notice of Motion. In prayer 2.1 the applicants seek an interdict
against the first to fourth respondents in particular to prevent
them to bury the deceased in Okahandja and in prayer 2.2 a direction
to prevent the sixth respondent, the Okahandja Municipal Council, to
assist the respondents in respect of the burial of the deceased at
Okahandja. The applicants want these two prayers to be made
operative with immediate effect as
"an
interim order pending the finalisation of the application for review
under case number A254/2010..."















[16] In LAWSA, second
edition, Vol 11, the following is stated in paragraph 401:



"An
interim interdict is a court order preserving or restoring the
status quo pending the final determination of the rights of the
parties.
It
does not involve a final determination of these rights and does not
affect their final determination".







(My emphasis)



It therefore also
follows that the rights that are to be considered by the court at
the stage of determining whether an interim interdict should be
granted, or not, are the same rights to be considered later.
Furthermore, the same parties must be involved, i.e. the rights to
be finally determined, must be the rights between the parties who
initially obtained the interim relief.











[17] The parties who
are involved in the review application are not the same parties as
in this application. The applicant in the review application, case
number A 254/2010, is Keharanjo II Nguvauva and here are two
different applicants. The review application is brought against the
Minister of Regional and Local Housing and Rural Development. He
does not figure in this application at all. Only the current first
and third respondents are respectively second and third respondents
in the review application. Second, fourth and fifth and sixth
respondents are not parties to the review application. Based on that
principle, prayer 3 cannot be granted. That is, however, not the
only prohibition to prevent the court from granting such an order,
as will become clear from the further analysis later herein.











[18]
The purpose of this application is to prevent the burial of the
deceased at Okahandja, while the review application is brought to
review and set aside the decision of the said minister and to
declare that the respondent, who is not a party to this application
Chief of the Ovambanderu Traditional community. The issue of the
burial of the deceased is not an issue to be reviewed. Counsel for
the respondents submitted that the applicants are in essence seeking
a postponement of a decision to bury the deceased until a paramount
chief has been appointed after finalisation of the review and
consequently has to discharge a lesser
onus
than
the
onus
that
would eventually be required in the review proceedings, while they
(the applicants) full well know that the burial issue will not
feature again. I shall withhold any comments in that regard, but I
do agree with the submission by the respondents that the relief they
now seek, is inappropriate. If the burial of the deceased has to
wait until final resolution of the review application, which may be
appealed against, that wait may be for many years. That would create
an untenable situation.











[19]
What is evident, is that if there is no pending claim between the
parties to this application, an interim interdict cannot be granted.
In
Botha
v Maree
1964
(1) SA 168(0) Smit JP concluded at 171 F-G that where no claim is
pending between the parties, the granting of an interdict is of a
final nature.



[20]
An interim interdict is furthermore an order that preserves the
status
quo
pending
the final determination of the rights of the parties. To determine
whether an interdict is interim or final, one has to look at its
substance and not its form. In paragraph 401, LAWSA,
supra,
states:
"Whether
an interdict is final or interim depends on its effect upon the
issue and not upon its form. If the relief sought is interim in form
but final in substance, the applicant must prove the requirements
for the grant of a final interdict and questions such as balance of
convenience do not arise."
(Apleni
v Minister of Law and Order and Others
1989(1)
SA 195 at 201 A-D.) The test to be applied has been set out in
BHT
Water Treatment v Leslie and Another
1993(1)
SA 47 (WLD) at 54J-55E. What the approach of the court in these
circumstances should be has often been indicated and followed,
namely that what was stated in respect of final relief in the case
of







Stellenbosch
Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd
1957(4)
SA 234(C) at 235. (The







Stellenvale Rule)











[21] I have no doubt
that the current application is in fact for final relief. This
matter should consequently be approached on the basis of the
Stellenvale Rule which will be discussed hereafter.











Stellenvale
Rule











[22]
The Stellenvale Rule, as expressly stated in the
Stellenbosch
Farmers Winery
case,
supra,
indicates
where there are factual disputes, a final interdict should only be
granted in Notice of



Motion
proceedings if the facts stated by the respondents, together with
the admitted facts in the applicants' affidavits, justify such
order. In the
BHT
Water Treatment
case,
supra,
Labe
J referred with approval to what has been stated in this regard in
the case of
Cape
Tex Engineering Works (Pty) Ltd v SAB Lines (Pty) Ltd
1968(2)
SA 528(C) at 259G. In the
BHT
Water Treatment
case,
after confirming the Stellenvale Rule, Labe J also said the
following at 55E:
"The
court should look at the substance rather than at the form. The
substance is that an interdict is being sought which will run for
the full time of the restraint. In substance therefore final relief
is being sought although the form of the order is interim relief. In
my view therefore the correct approach to this matter is that set
out in the
Stellenbosch
Farmers' Winery
case
to which reference is made in the Cape Tex case."



This
approach has frequently been applied by this court in several cases.
(E.g.
Clear
Channel Independent Advertising Namibia (Pty) Ltd and Another v
Transnamib Holdings Ltd and Others
2006(1)
NR 121 (HC) at 129 C-H.)











[23] The papers are
full of factual disputes. Nearly all the allegations contained in
the affidavits are denied. Very few allegations made by the
respondents' deponents are admitted by the applicants. Had his not
been an urgent application, the court would have seriously
considered to dismiss the application outright, as a result of the
disputes, which the applicants knew about and ought to have
foreseen. It is nearly impossible to decide this issue on the







papers.
(Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155 (TPD) at



1168.) No application
was made to refer the matter to evidence. However, in its discretion
the court has decided to attempt to consider this application on the
basis of the Stellenvale Rule.



The Stellenvale Rule
provides a mechanism to deal with factual disputes and I have
already referred to the approach which a court should follow in that
regard. If that approach is followed in this matter, then the Court
has to accept the facts as stated by the respondents in the
affidavit by Gerson Katjirua and supporting affidavits, as well as
those facts admitted by the applicants.











[24] With the very few
admissions by the applicants, the court approaches the matter mainly
by accepting the facts relied on by the respondents. Without dealing
with every disputed issue on this basis, the court has to accept the
following:




  • Although
    there is no provision for the appointment of an acting paramount
    chief in the constitution or the Traditional Authorities Act, it is
    not forbidden;



  • Other acting chiefs
    were appointed in the past;




The deceased was
appointed as acting chief after paramount Chief Munjuku II



Nguvauva died and
acted as such until his death;




  • The
    Supreme Council met and took certain decisions during the
    interregnum.
    In
    fact the Supreme Council also decided on the moratorium and the
    burial of Chief Munjuku II at Okahandja, issues apparently not
    disputed by the applicants. The Supreme Council also decided that
    the deceased should seek permission to be buried at Okaseka from
    the farm owner and in the event of her denial then to be buried at
    any other of the sacred places of the Ovambanderu Traditional
    Community (Minutes of the Supreme Council meeting on 12 June 2010);



  • The customary law and
    history as set out by the deponent Gerson Katjirua, as well as his
    position;



  • That the deceased was
    the type of person as described by Gerson Katjirua;





  1. That the applicants
    are a part of the "concerned group"; That the third
    applicant is the designated successor of the deceased;





  1. That the deceased
    will be buried at one of the other sacred places of the Ovambanderu
    Traditional Community, after the refusal by the farm owner that he
    can be buried at Okaseta;





  • That it is the wishes
    of the wife and family of the deceased that he be buried at
    Okahandja; and



  • In the event of the
    review application succeeding and the Supreme Council deciding that
    the deceased should not have been buried at Okahandja or another
    sacred place, his body can be exhumed and buried elsewhere.
















[25] For these reasons
the application cannot succeed and falls to be dismissed with costs.











[26] The issue of the
burial of the deceased falls outside what the court has to decide,
but following the dismissal of the application and the obvious
necessity to bury the deceased as soon as possible, I believe the
respondents should take the following into consideration. The first
respondent through its legal representatives did indicate after the
dismissal of the previous court application that the burial would
take place at Okahandja. The sixth respondent has indicated through
its lawyers, Conradie and Damaseb, that such an event falls under
the jurisdiction of the National Heritage Council, a government
institution, who has to decide in that respect. Furthermore, the
National Heritage Council has already on 22 October 2010 indicated
that there is a government moratorium against the use of sacred
places by the Ovambanderu. Consequently, a burial at Okahandja may
provide other obstacles. Finally, the court can only express the
sincere hope that common sense would prevail to the effect that the
division which sadly exists amongst the Ovambanderus would not
impede the burial of the deceased, which is long overdue.











[27] In the result,
the application is dismissed with costs, costs to include that of
one instructing and two instructed counsel.











MULLER, J











ON BEHALF OF THE
APPLICANTS: Mr P. Kauta







Instructed by: Dr
Weder, Kauta & Hoveka







ON BEHALF OF THE
RESPONDENTS: Adv Frank SC,



assisted by Adv S.
Akweenda







Instructed by:
Lorentz Angula