Court name
High Court
Case number
APPEAL 197 of 2011
Title

Mukulu NO and Another v Kalumbu and Others (APPEAL 197 of 2011) [2012] NAHC 19 (03 February 2012);

Media neutral citation
[2012] NAHC 19
Coram
Smuts J





IN THE HIGH COURT OF NAMIBIA







REPORTABLE







CASE NO: A197/2011


IN THE
HIG COURT OF NAMIBIA





In the
matter between:





CHIEF
OSWIN SHIFIONA MUKULU, N.O.
….....................1st
APPLICANT


OMBALANTU
TRADITIONAL AUTHORITY
…...................2nd
APPLICANT


and


VAENDWA
KALUMBU
…..............................................1st
RESPONDENT


MICHAEL
SHAPUMBA NAUTA
…................................2nd
RESPONDENT


COUNCIL
OF TRADITIONAL LEADERS
…....................3rd
RESPONDENT





CORAM:
Smuts, J





Heard on:
26 January 2012


Delivered
on: 3 February 2012



______________________________________________________________________







JUDGMENT



______________________________________________________________________


Smuts,
J






  1. On
    the extended return date of a rule nisi, the applicants
    sought confirmation of the rule obtained against the first and
    second respondents. The third respondent is the Council of
    Traditional Leaders, cited by virtue of any interest that it may
    have in relation to the relief sought by the applicants. It did not
    oppose the application. Nor did the first respondent.







  1. The
    first applicant is the duly designated and recognised Chief of the
    Ombalantu Traditional Authority, established under the Traditional
    Authorities Act, 25 of 2000 (“the Act”). The applicants
    had obtained an order against the first and second respondents, as a
    matter of urgency on 30 July 2011 to the following effect:







That a rule nisi is issued in terms of
which the respondents are called upon to show cause, if any, to this
Honourable Court on the 16
th
of September 2011 at 10h00 why this Court should not make a final
order in the following terms:







2.1 Interdicting and restraining the first respondent from
coronating, enthroning, inaugurating, appointing and ceremonially
overseeing the enthronement of the second Respondent as the “Ohamba”
or king of the Ombalantu Communicty on the 30th of July
2011 or on any other day.







2.2 Interdicting and restraining any other person from coronating,
enthroning, inaugurating, appointing and ceremonially overseeing the
enthronement of the second Respondent as the “Ohamba” or
king of the Ombalantu Community on the 30th of July 2011
or on any other day;







2.3 Interdicting and restraining the Second Respondent from
accepting any enthronement, coronation or appointment from any person
designating and or enthroning him as the “Ohamba” or king
of the Ombalantu Community in contravention of the Traditional
Authorities Act, Act No. 25 of 2000 as amended.







2.4 Interdicting and restraining the Second Respondent from
participating in any coronation, enthronement, ceremony, ritual,
anointment, inauguration that purports to enthrone, appoint or
install the Second Respondent as the “Ohamba” or king of
the Ombalantu Community in contravention of the Traditional
Authorities Act, Act No. 25 of 2000 as amended.







2.5 Declaring the conduct of the Respondents and or any other
person that relates to the coronation, enthronement, installation,
inauguration and appointment of any person as the “Ohamba”
or king of the Ombalantu Community in contravention of the
Traditional Authorities Act, Act No. 25 of 2000 as amended as
illegal, null and void.



2.6 That the respondents are ordered to bear the costs of this
application.”






The further terms of the order not relevant for present purposes and
are excluded.






  1. The
    factual background to the application is as follows.







  1. The
    first applicant had under the then applicable legislation, been
    appointed as a Senior Headman in 1983. In the predecessor
    legislation to the Act, the erstwhile Traditional Authorities Act,
    17 of 1995, the first applicant was recognised as the Chief of the
    Ombalantu Traditional Authority. By virtue of the savings and
    transitional provisions contained in the Act, his designation and
    recognition continued and he was deemed to have been done under the
    equivalent provisions in the Act. The long title of the Act
    essentially sets out its statutory purpose. It is:







To provide for the establishment of
Traditional Authorities and the designation, election, appointment
and recognition of traditional leaders; to define the powers, duties
and functions of Traditional Authorities and traditional leaders; and
to provide for matters incidental thereto.”






  1. Section
    2 of the Act deals with the establishment of Traditional
    Authorities. It provides:




(1) Subject to this Act, every traditional community may establish
for such community a traditional authority consisting of-






(a) the chief or head of that traditional community, designated
and recognized in accordance with this Act; and







(b) senior traditional councillors and traditional councillors
appointed or elected in accordance with this Act.






(2) A traditional authority shall in the exercise of its powers
and the execution of its duties and functions have jurisdiction over
the members of the traditional community in respect of which it has
been established.”






  1. The
    powers, duties and functions of Traditional Authorities and its
    members are then set out in s 3. These include performing
    traditional ceremonies and functions held within the traditional
    community, upholding, promoting and protecting and preserving the
    culture and traditional values of a traditional community as well as
    preserving and maintaining the cultural sites, works of art and
    literary works of that traditional community. Under s 4 of the Act
    the designation of a Chief or head of a Traditional Authority is
    provided for in the following way:







(1) Subject to sections 5 and 6, members of a traditional
community who are authorised thereto by the customary law of that
community, may designate in accordance with that law-






(a) one person from the royal family of that traditional
community, who shall be instituted as the chief or head, as the case
may be, of that traditional community; or






(b) if such community has no royal family, any member of that
traditional community, who shall be instituted as head of that
traditional community.






(2) The qualifications for designation and the tenure of, removal
from and succession to the office of chief or head of a traditional
community shall be regulated by the customary law of the traditional
community in respect of which such chief or head of a traditional
community is designated.”






  1. The
    first applicant is recognised as the Chief or head of the
    traditional community which constitutes the Ombalantu Traditional
    Authority under s 4. The applicants approached this Court in July
    last year on an urgent basis for the rule nisi set out above. They
    did so after receiving an invitation extended to them by the first
    respondent to the inauguration of the crowning of the second
    respondent as King (Ohamba) of the Ombalantu Community on 30 July
    2011. The terms used in the invitation as translated are “the
    anointment ceremony of King …….”. The designated
    time was for 10h00 that morning.







  1. It is
    common cause that the respondents are members of the Ombalantu
    traditional community. The applicant, having served as a senior
    headman since 1983 and having been steeped in the traditions and
    customs of the Ombalantu traditional community from an early age, is
    duly qualified to testify the traditions and customs of the
    Ombalantu community1.
    In his founding affidavit he refers to his position as head of the
    Ombalantu traditional authority and thus of the community in
    accordance with the traditions and customs of that community and
    states that the inauguration, anointment or coronation of a king in
    respect of the same community would be untenable and would violate
    his own rights as well as Ombalantu traditions and customs.







  1. In
    his answering affidavit, the second respondent states that he is of
    royal descent and had already been “confirmed” as King
    on 1 January 2000. He states that this position is merely symbolic
    and that the applicants did not provide any evidence that it would
    undermine the first applicant’s position as statutorily
    recognised head of the community and of the second respondent. In
    reply, the first applicant amplified by pointing out that the
    anointing of the second respondent as a king and his claim to occupy
    that position would interfere with the first applicant’s
    position as Chief and head of that community. This is also borne out
    by the portion of the book describing the customs and traditions of
    the Ombalantu people attached to the answering affidavit.







  1. The
    first applicant states in reply that the coronation or anointing of
    the second respondent as a king would derogate from his position and
    status as Chief and head of the community and the statutorily
    established traditional authority. The applicants accordingly sought
    the relief which was then granted as a matter of urgency on 30 July
    2011.







  1. In
    the answering affidavit, the second respondent also stated that by
    the time the order was served, his anointing ceremony had already
    taken place and that the order is thus merely academic and should
    not be confirmed for that reason alone. It was also argued on behalf
    of the first respondent by Mr N Tjombe who appeared for him, that
    the applicants’ application did not protect an alleged
    violation of the provisions of the Act or the customs and practices
    of the Ombalantu Community and that the first applicant was merely
    obsessed with titles and was disappointed that the second respondent
    had referred to him as a senior headman or chief and referred to
    himself as a king.







  1. The
    first applicant however states that the anointing of a king for the
    same community would create confusion amongst members of that
    community and also could lead to unrest and divisions amongst the
    community and could lead to the peace and harmony of that community
    being disturbed. The second respondent in his answering affidavit
    stated that according to customs and the customary laws of the
    Ombalantu community the hereditary king for that community is chosen
    from royal lineage. He further stated that as a decendant of the
    royal family, he had already on 1 January 2000 been confirmed as
    king and was thus the “hereditary king of the Ombalantu
    community”. In the replying affidavit however the first
    applicant attached the invitation to the ceremony of 1 January 2000
    involving the second applicant which stated that it was however
    merely the inauguration of the second respondent as a senior headman
    in the place of the former senior headman, Mr Petrus Aluvilu Neumbo.







  1. Given
    the fact that the ceremony proceeded prior to service of the order,
    it is clear to me that the entire order would not be capable of
    being confirmed. The question arises as to whether the applicant has
    established the requisites for a final interdict against the second
    respondent and for the declaratory relief contained in the rule. Mr
    Khama who appeared for the applicants submitted that the applicants
    had established an entitlement to relief by virtue of the second
    respondent acting in conflict with s 11 of the Act, entitled “Use
    of traditional titles”. This section provides:







Nothing in this Act contained shall be
construed as precluding the members of a traditional community from
addressing a traditional leader by the traditional title accorded to
that office, but such traditional title shall not derogate from, or
add to, the status, powers, duties and functions associated with the
office of a traditional leader as provided for in this Act.”






  1. Having
    carefully considered the affidavits filed in this matter and the
    written and oral argument advanced on behalf of the applicants on
    the one hand and the second respondent on the other, it would seem
    to me that the conduct of the second respondent, by claiming to be
    anointed or inaugurated as the hereditary king (ohamba) of the
    Ombalantu Community, in the context of the Act would in my view
    derogate from the status, powers, duties and functions associated
    with the office of the first respondent, as well as undermining the
    authority and therefore derogating from the authority powers, duties
    and functions of the second respondent.







  1. Plainly,
    to claim to be the king of that community implies that the first
    applicant who has been statutorily recognised and designated as head
    of that community, is subservient to him, particularly in the
    context of s4 of the Act. That section after all contemplates the
    designation of a person in position of the head of a traditional
    community being either from the royal family, of that community or,
    in the absence of a royal family a member of that community being
    designated as head of that community. By claiming to be the king of
    that same community after designation of the first respondent as
    head in 1995 thus derogates from the first applicants’ status,
    powers and functions. It also derogates from the powers and
    functions of the second respondent which I have referred to above.







  1. Mr
    Tjombe’s submission that the first respondent would thus be
    confined to a ceremonial and titular position would in my view
    undermine and derogate from the powers and functions of both the
    first and second respondents. The performance of ceremonial matters
    within the community is one of the statutory designated powers of
    both the applicants. The first applicant would perform those powers
    as head of that community. To claim to be the hereditary king in the
    context of the ceremonial functions of that same community would in
    my view clearly derogate from the ceremonial position of the first
    applicant.







  1. It
    follows in my view that the applicants have established a clear
    right to the confirmation of certain portions of the rule. In view
    of the fact that the ceremony had been completed at the time the
    order was served, it would thus serve no purpose in confirming
    paragraphs 2.1 and 2.2 of the rule.







  1. Paragraphs
    2.3 and 2.4 would in my view need to be confirmed. The applicants
    have in my view established their entitlement to the declaratory
    relief contained in paragraph 2.5. This is because the applicants
    have not only established a clear right to interdict the second
    respondent being designated as the King or “Ohamba” of
    the Ombalantu community and being installation in that position as
    well as the absence of an alternative remedy. By reason of their
    entitlement to the declaratory relief in paragraph 2.5 to part of
    the orders in paragraphs 2.3 and 2.4 being confirmed in confined
    form, the applicants have in my view been substantially successful
    in this litigation and are entitled to their costs on the basis of
    one instructed and one instructing counsel.







  1. I
    accordingly confirm paragraph 2.5 of the order and direct that the
    second respondent pays the costs of the application including one
    instructed and one instructing counsel, and that paragraphs 2.3 and
    2.4 are to be confined to the following single paragraph:




2.3 Interdicting and restraining the second respondent from
purporting to be installed or inaugurated as hereditary king of the
Ombalantu community


The
further portions of the rule granted on 30 July 2011 are hereby
discharged.









_______________



Smuts, J



ON BEHALF OF APPLICANTS MR D. KHAMA



Instructed by: The Government Attorney







ON BEHALF OF RESPONDENTS MR N. TJOMBE



Instructed by: Tjome-Elago Law Firm Inc









1As
to the proving of customs, see Kaputuaza v Executive Committee for
Hereros 1984(4) SA 295 (SWA) at 301 E-302B.