Court name
High Court
Case number
87 of 2010
Title

Adcock v Mbambo and Others (87 of 2010) [2012] NAHC 276 (24 October 2012);

Media neutral citation
[2012] NAHC 276
Coram
Geier J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 87/2010








In the matter between:








MARK ADCOCK
..........................................................................................APPLICANT



and








ERWIN MUNIKA MBAMBO
..............................................................1ST
RESPONDENT



THE HAMBUKUSHU
TRADITIONAL AUTHORITY .........................2ND
RESPONDENT



THE CHAIRPERSON OF THE
HAMBUKUSHU



CUSTOMARY COURT
.......................................................................3RD
RESPONDEN



VICKY MUTORA
...............................................................................4TH
RESPONDENT



SENIOR HEADMAN MAHERO
........................................................5TH
RESPONDENT



JUNIOR HEADMAN MBAREMA
......................................................6TH
RESPONDENT



THE SECRETARY OF THE
HAMBUKUSHU



CUSTOMARY COURT
......................................................................7TH
RESPONDENT



THE GOVERNMENT OF THE
REPUBLIC OF NAMIBIA .................8TH
RESPONDENT













Neutral citation:
Adcock v Mbambo (A 87/2010) [2012] NAHCMD 35 (24 October
2012)













Coram: GEIER J



Heard: 19
September 2012



Delivered: 24
October 2012








Flynote: Review –
application to set aside proceedings of the traditional court –
applicant not a member of the particular traditional community –
question arose whether in terms of the Traditional Authorities Act 25
of 2000 or customary law respondents had authority and jurisdiction
to subject a non-member to proceedings before a traditional court –
Traditional Authorities Act 25 of 2000 – interpretation of
section 3 – as read with section 1 – court deciding that
no such authority conferred by the Traditional Authorities Act –
given the definition of ‘customary law’ in section on 1
of the Act and in so far as customary law in conflict with such
provisions – customary law not prevailing - proceedings
therefore set aside








Summary: Applicant
had been subjected to proceedings before the Hambakushu traditional
court which had sentenced and fined him. Applicant seeking the review
and setting aside of these proceedings also on the grounds that the
Traditional Authorities Act 25 of 2000 did not confer on the
respondents the authority and jurisdiction to subject the applicant,
not being a member of the Hambakushu traditional community to
proceedings before a traditional court of the Hambakushu –








Held: That on the
interpretation of section 3 as read with section 1 – of the
Traditional Authorities Act 25 of 2000 – no authority or
jurisdiction conferred on a traditional court to try a non-member of
such traditional community – unless non-member had assimilated
the culture and traditions of that traditional community by marriage
or adoption or by any other circumstance and such non-member had been
accepted by the traditional community as a member thereof.








Held: Even if
respondents at one time had authority and jurisdiction to subject
persons like the applicant to a trial before the traditional court in
terms of their customary law such part of their customary law could
no longer prevail given the definition of the term ‘customary
law’ as contained in section 1 – of the Traditional
Authorities Act 25 of 2000 – as Traditional Authorities Act
conferring no authority or jurisdiction on a traditional court to try
a non-member of such traditional community –








Held: As the
applicant was not a member of the Hambakushu traditional community
respondents had no jurisdiction or authority to try him - the
applicant’s trial before such traditional court thus amounted
to a nullity which fell to be set aside – review accordingly
granted -










ORDER











  1. The decision of the
    First and Second Respondents to subject the Applicant to a trial or
    hearing in the Hambukushu traditional court is declared to be null
    and void and is hereby reviewed and set aside.



  2. The proceedings of the
    Hambukushu traditional court of 20 February 2010 in respect of the
    purported trial or hearing of the Applicant, is declared to be null
    and void and is hereby reviewed and set aside.



  3. The First and Second
    Respondents are ordered to repay to Applicant the amount of
    N$60,000.00 on or before 30 October 2012 together with interest at
    the rate of 20% per annum from 2 March 2010 to date or payment.



  4. The First and Second
    Respondents are ordered to return to the Applicant the Applicant’s
    digital reorder as confiscated on 20 February 2010 on or before 30
    October 2012.



  5. The First to Third
    Respondents are to pay the costs of this application on an attorney
    and own client scale.






JUDGMENT










GEIER J:








[1] The
applicant in this matter is the sole proprietor of a camp called
Ngeti Camp at which he is been operating a lodge on the banks for the
Okavango river for over 20 years.








[2] On
14 February 2010
a guest reported that an
amount of U$100 had been stolen from her room. Upon investigation it
was established that the 4
th
respondent was on duty and had cleaned the room of
the particular guest at the relevant time. The 4
th
respondent was confronted by applicant and another
female and then body searched out of sight of the applicant.








[3]
There is a dispute on the papers whether 4
th
respondent was stripped naked during this search
in the presence of the 4
th
respondent.








[4]
Applicant was subsequently accused of having stripped naked the 4
th
respondent and of bribing the 4th
respondent and police.








[5] Late on Friday 19
February 2012 the 5th and 6th respondents,
being a senior and junior headman respectively, came to the applicant
and requested him to attend a meeting of the Hambukushu Traditional
Authority. Applicant was not informed of the purpose of the meeting
but assumed the matter was connected to the incident involving the
4th respondent.








[6] It appears from the
answering affidavits that the respondents allege that the applicant
was summoned in terms of the laid down guidelines and procedures of
‘the traditional court’. Such guidelines or where however
not spelt out in the papers, nor were they properly proved.








[7] The respondents were
also adamant that no ‘community courts’ in terms of the
Community Courts Act no. 10 of 2000 had at that time been established
and that the applicant was thus summoned to appear in the
‘traditional court’ which had allegedly been operational
since ‘ times immemorial’.








[8] It was in such
circumstances that the applicant came to attend a meeting on the
following day – Saturday 20 February 2010 - at what turned out
to be a traumatic experience in the traditional court of the
Hambakushu, where he was subjected to the abusive procedures which he
described as those of ‘a kangaroo court’.








[9] In the founding
papers, the proceedings, to which he was subjected, are described as
follows:








The
allegations of bribery and corruption against the First Respondent
were made over the National Broadcasting Corporation’s (NBC)
Rukavango radio service, and it is common cause that the said radio
has a large listenership in (the) Kavango region, where the First
Respondent, being a Chief and leader of the Hambukushu community,
wields considerable influence. By the nature of the allegations
against me that I bribe or bribed the First Respondent, the First
Respondent was also an accused or a complainant, and under such
circumstances, the First Respondent ought not to have participated in
the hearing as an adjudicator wherein the allegations of bribery and
corruption were central to the issues. As I stated above, it appeared
that he was in charge of the hearing.



Throughout
the hearing, I was accused by the First Respondent of (the) stripping
naked the Fourth Respondent. The First Respondent also accused me of
being a racist, rapist and a murderer, and he openly incited the
community throughout the trial to take Ngepi from me. In my opinion
this exposes the true underlying purpose and intent of the trial, as
I have good reason to believe that it is intended to give my company
to others who are prepared to pay money for this great prize when I
am gone. The First Respondent was therefore not the independent and
impartial presiding officer one would expect.



Further,
no written summons calling upon me to appear in the community court
was ever served on me as contemplated by regulation 2(1) of the
regulations issued in terms of the Community Courts Act. I am certain
that no such summons was ever issued by the clerk of the community
court in the first place. … I had no opportunity to prepare
for the trial to enable me to properly respond to the charges that I
ultimately faced or enlist the services of a competent legal
practitioner to assist in the matter



During
the duration of trial or hearing, I had to prove my innocence. The
First Respondent and the others who were present (including the
Chairperson of the proceedings) refused to listen to my version, and
even if the burden of proof rested on me. It did not help.



I
was not permitted to call witnesses to testify in my favour nor was I
allowed to cross-examine the witnesses who were testifying against
me, three of whom could not possibly have been at the scene anyway. I
am advised and I submit that these are such fundamental breaches of
the principles of fairness and natural justice that it cannot be said
I had a fair trial as contemplated in Article 12 of the Namibian
Constitution. … The First Respondent refused my request that
the witnesses testifying against me should leave the hearing so that
I can individually cross-examine them.



None
of the witnesses, who testified in the purported hearing, took the
oath or made the affirmation …



Most
of the testimonies of various witnesses and statements by the First
Respondent were in the Hambukushu language. It is known to the First
Respondent and the witnesses that I do not understand Hambukushu.
Nonetheless, some portions of the testimonies were not translated
into English, putting me at a disadvantaged position as I could not
follow the essential parts of the proceedings.



I
was subjected to intimidation throughout the trial. The members of
the public who were observing the trial would clap hands and shout
very loud and in a hostile manner whenever they liked what the First
Respondent was saying – especially when he said that they
should take Ngepi Camp and throw me out, and laughed at my
statements. I am also informed that clapping or marking any noise in
the Second Respondent community court is strictly forbidden. This was
certainly done to intimidate me.



In
the course of the trial, the First Respondent stated that they will
throw me out and take Ngepi Camp over, among many other angry
outbursts to deliberately incite the members of the public who were
present. At one point, an unknown man sitting near me started
chanting “KILL HIM, KILL HIM!”. Which was obviously heard
by the First Respondent, but he did not stop the man.



To
further intimidate me, I was not permitted to take notes of the
proceedings and I was not allowed to sit down or allowed to sit down
or allowed to drink water – the hearing took more than 6 hours
and it was held in the middle of summer in a room full of people. The
presiding officer (i.e. First Respondent), the other headmen or
traditional leaders present, and some of the members of the public
who were present at the hearing were all making threatening remarks
at me in the course of the hearing. I took the threats seriously and
did not leave the hearing (which I strongly considered) for fear that
my two nieces and a friend who accompanied me to the hearing and I,
may be seriously harmed or even killed by the very hostile public
spectators in the community court, for disrespecting the community
court or the First Respondent as we attempted to leave. Standing for
more than six hours resulted in me being in bed most of the following
day, and having to take numerous pain killers due to muscle aching
and dehydration and physical mental exhaustion. Also I am now
suffering from an old injury to my back which since the hearing has
flared up again.



Leigh
Kennedy was also present at the hearing, and my other digital
recorder which was in her possession, was confiscated as apparently
only one person – the secretary of the community court (i.e.
the Seventh Respondent) – is allowed to record the proceedings.
The Secretary did take some notes of the proceedings, but I doubt
that the notes will be an accurate record of the proceedings, as he
quite often did not take any notes and was not present all the time,
and no one else acted as the secretary when he had left the room. I
was then found guilty of disrespecting the court and fined an amount
of N$10, 000 by the court when one of my staff members was recording
the proceedings with this digital recorder! And it was then also
confiscated. I was also prohibited from taking any notes of the
proceedings, which I intended to use as memory aids – these
were also confiscated and I was fined a further N$5,000.00 for this
offence of taking notes in the community court.



It
was required of me to place my hands behind my back and (I was) not
permitted to gesture with my hands when I talked. This was very
uncomfortable and painful, and I suspect that it was done to further
intimidate and belittle me, which appeared to have a positive effect
on the members of the public who observed the purported trial. The
First respondent wanted to score as many points as possible to be
seen by his subjects as a tough leader, especially in light of the
allegations of bribery and corruption against him on the radio. In
fact I submit that I was subjected to the hearing in the light of the
radio broadcast, and not on the facts, and to promote the underlying
intent of stealing Ngepi from me.



As
stated above I was fined N$ 60 000.00 … (I) am not
knowledgeable of the customary laws of the Hambukushu community, but
I understand that the fine imposed on me was four times in excess of
fines imposed for murder, in which case the fines imposed on me are
grossly unfair and disproportionate even if I was guilty (which I am
not) and should be set aside for that reason too.’
1








[10] Needless to say the
respondents denied most of these allegations. They essentially
endeavoured to demonstrate in reply how eminently fair the
proceedings had been.



[11] The main thrust of
the defences raised by respondents, in addition to certain points in
limine
, was that the proceedings before the traditional court
were in accordance with Hambukushu custom and that the 1st
respondent had merely overseen the proceedings, chaired by his
appointee, a certain Nyambi Moyo, to assist Moyo in the process and
‘to ensure that peace and order would prevail throughout the
hearing’.








[12] In their answering
papers respondents also repeatedly threatened to apply for the
striking out of portions of the above quoted narration of events of
the applicant on the basis that such allegations amounted to
‘unsubstantiated hearsay’ and that they were ‘defamatory’
‘slanderous’ and ‘irrelevant’. The threatened
striking out was however never pursued, correctly so, in my view, as
all the relevant parties were before court and as such allegations
were in any event also borne out essentially by the transcript of the
surviving ‘digital recording’.








[13] Ultimately the court
was however not called upon to finally decide these issues as will
appear from what is set out herein below.








[14] It will by now have
been noted from the above exposition that the applicant was
ultimately sentenced to pay a fine of N$60 000.00. Interestingly
enough this amount was made up as follows:








a) N$11 000 for
assaulting and ambushing the 4th respondent;



b) N$25 000 for stripping
naked the 4th respondent;



c) N$9000 for
disrespecting 1st and 2nd respondents;



d) N$10 000 for
electronically recording the proceedings of the hearing;



e) N$5 000 for taking
notes during the hearing.








[15] Applicant was then
told in no uncertain terms that he had to pay this fine within seven
days or that he would have to leave the area.








[16]
He was subsequently ‘begged’ by family and employees to
pay - ‘as the community were “hot right now, and
we/
(they)
could
be killed” - if he would refuse to pay. The First Respondent
allegedly also stated that applicant’s business – Ngepi
Camp – would be taken away should applicant not pay the fine’.
2








[17] Applicant thus made
payment of the N$60 000 under duress on 01 March 2010.








[18] Amongst two other
applications in which urgent interdictory relief was also almost
immediately sought against the first respondent and certain
participants to these occurrences the applicant then also launched
this application for review on 1 April 2010.








[19] All three
applications were originally set down for hearing on 19 September
2012. On account of an agreement reached between the parties only the
review application was to be argued in which application the
applicant continued seek the following relief:









  1. Reviewing
    and correcting or setting aside the decision of the First and Second
    Respondents to subject the Applicant to a trial or hearing in the
    Hambukushu Customary Court, and declaring the aforesaid decision
    unconstitutional, and or null and void.



  2. Reviewing
    and correcting or setting aside the proceedings of the Hambukushu
    Customary Court of 20 February 2010 in respect of the purported
    trial or hearing of the Applicant, and declaring the aforesaid
    proceedings unconstitutional, and or null and void.



  3. That
    the First and Second Respondent return to the Applicant the amount
    of N$60,000.00 paid on 20 February 2010 to the First and Second
    Respondent by the Applicant purporting to be a fine imposed by the
    Hambukushu Customary Court.



  4. That
    the First and Second Respondent return to the Applicant the
    Applicant’s digital reorder confiscated on 20 February 2010.



  5. Directing
    that the First to Seventh Respondents pay the costs of this
    application on an attorney and own client scale.



  6. Granting
    the Applicant such further and or alternative relief as this
    Honourable Court deems fit.’









[20] From the allegations
made in the founding papers to the review it appeared that the
applicant also challenged the authority of the respondents to have
subjected him to the complained of proceedings. The original
challenge was formulated as follows:








I
am advised by my legal practitioner, which I verily believe to be
true, and submit that the First and Second Respondents’
authority to have tried me as they did is derived from the Community
Courts Act, Act 10 of 2003 (‘the Community Courts Act’).
I am further advised that no other law permits the First and Second
Respondent to hear and determine any civil or criminal matters.
Further legal argument in this respect will be advanced at the
hearing of this application.’








[21] Subsequently the
basis of the challenge to first and second respondents’
authority changed somewhat. In the written heads of argument,
submitted on behalf of the applicant, Mr Tjombe, prior to the
hearing, now submitted:








In
any event, the Applicant is not a member of the Hambukushu community,
and no other evidence have been produced by the Respondents to
indicate how their customs should apply to the Applicant. It is
submitted that the onus is on the Respondents to establish the
jurisdictional facts upon which they would exercise authority and
jurisdiction over the Applicant. The fact that the Applicant operates
a business in the area of the Hambukushu is not sufficient to
establish that jurisdictional requirement.



Section
14(b) of the Traditional Act states:



In
the exercise of the powers or the performance of the duties and
functions referred to in section 3 by a traditional authority or a
member thereof



(b)
the customary law of a traditional community shall only apply to the
members of that traditional community and to any person who is not a
member of that traditional community, but who by his or her conduct
or consent submits himself or herself to the customary law of that
traditional community.”








[22] Mr Ncube on the
other hand submitted on behalf of the respondents that ‘applicant
had submitted himself to the jurisdiction of the Hambukushu
Traditional Authority by concluding a lease for the purposes of
operating a tourist lodge with such authority. In this regard it was
submitted further:








For
the Applicant to now claim that he is not subject to the laws of the
Hambukushus and is not answerable to the Traditional Authority is a
paradox which is not justified by his argument. Land is allocated to
the Applicant by the Second Respondent and the Communal Land Board.
The Applicant seeks to conveniently use the excuse that he is not a
member of the Hambukushu Community when he dealt with the Traditional
Authority that plays a pivotal role in the allocation of communal
land rights for his lodge.



He
cannot wean himself from the customary practices of the Hambukushu
Traditional Authority. For the Applicant to base his Application for
an interdict to the indecency on proceedings which were conducted in
a fair manner in relation to stripping a woman naked is baseless. The
Applicant cannot seek to exclude himself from the customs of the
Hambukushu Traditional Authority when it was through the customs of
that community that he gained the lodges.



It
should be re-emphasized that the Applicant labours under the
misconception that he is not a member of the community of the
Hambukushu’s. This is a great contradiction because the
Applicant states in his founding papers that he has resided in the
area for 20 years.



In
the definition section of the Traditional Authorities Act 25 of 2000
a communal area is defined as: “the geographic area habitually
inhabited by a specific traditional authority, excluding any local
authority area as defined in section 1 of the Local Authorities Act
23 of 1992”.



Further,
a member in relation to a traditional authority means “amongst
others a person who by any other circumstance assimilates the culture
and traditions of that traditional community and has been accepted by
the traditional community as a member thereof”.



According
to Wikipedia, assimilation refers to that process in which another
ethnic group settles into a new land and thus supports or promotes
the customs and attitudes of the culture in existence. The
Meriam-Webster dictionary defines assimilation as the process by
which new facts or a response to new situations is in conformity with
what is already available to the community.



It
is therefore clear from the circumstances of this case that the
Applicant fully acquiesced by conduct to the customs of the
community, noting the Traditional Authority in tandem with the
communal land board granted him the right to lease communal land.



He
also did not object to its jurisdiction when proceedings commenced.
The applicant paid a fine and this conduct estops him from denying
the version of the court.’








[23]
Accordingly - when the matter came up for hearing – the court
raised with the parties the question whether or not the issue of
whether or not the applicant could be competently tried by a
traditional court should not be conveniently determined
in
limine
as
a finding in favour of the applicant would obviate the need to
determine all the other issues raised in this review.








[24] It was in such
circumstances that the court ruled that argument was to be limited to
this issue.








[25] Mr Ncube in oral
argument reiterated that the applicant was assimilated into, and thus
was to be regarded as part of the traditional community of the
Hambakushu, that he subjected himself to the hearing of the
traditional court, to which hearing he went armed with a digital
recorder and that he was therefore aware that would be tried. It was
also clear, so the argument went further, that he participated in the
proceedings whereafter he was advised to pay a fine which he did
without protest.








[26]
He also placed reliance on that part of the definition of the word
‘member’ as contained in section 1 of the Traditional
Authorities Act 2000
on
the strength of which he submitted that the applicant had become a
member of the Hambakushu traditional community and had thus become
subject to the authority and jurisdiction of the traditional court.









[27]
Mr Tjombe on the other hand countered these arguments by pointing out
that the so-called submission to the traditional courts authority had
occurred under duress and that applicant had thus not willingly
submitted himself to such proceedings. He also did not go knowingly,

as he
was not informed of what he was to face,
and
once there,
he
could not leave,
as
he took the threats made against him seriously. Mr Tjombe thus made
the point that the applicant could never be regarded as having
submitted himself to the first and second respondents’
jurisdiction feely and voluntarily while under duress. As the
applicant had thus not subjected himself out of his own free volition
to the authority of the first and second respondent and as he had
never become a member of the traditional community of the Hambakushu
the proceedings in the traditional court amounted to a nullity which
were liable to be set aside in toto.








[28] The issues so raised
obviously have to be determined mainly with reference to the
provisions of the Traditional Authorities Act, Act 25 of 2000 –
(hereinafter referred to as ‘the Act’).








[29]
It appears firstly from the preamble
3
that
the Act was also intended to define the powers, duties and functions
of traditional authorities and traditional leaders.



[30] These powers and
duties are then regulated in section 3 of the Act.








[31] The relevant parts
then provide:








3
Powers, duties and functions of traditional authorities and members
thereof



(1)
Subject to section 16,
4
the functions of a
traditional authority, in relation to the traditional community which
it leads, shall be to promote peace and welfare
amongst
the members of that community
,
supervise and ensure the observance of the customary law
of
that community by its members
,
and in particular to-



(a)



(b)
administer and execute the customary law of that traditional
community;



(c)
… (g)



(h)
perform any other function as may be conferred upon it by law or
custom.



(2)
A member of a traditional authority shall in addition to the
functions referred to in subsection (1) have the following duties,
namely-



(a)
… (d)



(e)
to respect the culture, customs and language of any person who
resides within the communal area of that traditional authority, but
who is not a member of the traditional community
which such
member leads.



(3)
In the performance of its duties and functions under this Act, a
traditional authority may-



(a)



(b)
hear and settle disputes between the members of the
traditional community in accordance with the customary law of that
community; …’.



(my
underlining)








[32]
It emerges also that all powers of a traditional
authority are to be exercised in respect of the ‘members of a
traditional community’ only. A distinction is also made between
such ‘members’ and ‘non-members’ of such
traditional community, as appears from sub-section 3(2) (e).








[33] The terms ‘member’
and ‘traditional community’ are defined in section 1 of
the Act as follows:








"member",
in relation to-








(a)
a traditional community, means a person either or both of whose
parents belong to that traditional community, and includes any other
person who by marriage to or adoption by a member of that traditional
community or by any other circumstance has assimilated the culture
and traditions of that traditional community and has been accepted by
the traditional community as a member thereof; …








"traditional
community" means an indigenous homogeneous, endogamous social
grouping of persons comprising of families deriving from exogamous
clans which share a common ancestry, language, cultural heritage,
customs and traditions, who recognises a common traditional authority
and inhabits a common communal area, and may include the members of
that traditional community residing outside the common communal area;













[34] It is convenient to
commence the analysis of the impact of these definitions on the
powers conferred by section 3 with reference to the definition of the
word ‘traditional community’.













[35] By way of that
definition a traditional community is thus comprised of ‘indigenous
homogeneous, endogamous social ‘groups’ of persons, which
‘groups’ in turn are comprised of ‘families’
derived from exogamous clans which share a common ancestry, language,
cultural heritage, customs and traditions. (my emphasis)













[36] In addition such
‘groups of families’ must recognise a common traditional
authority and inhabit a common communal area. Such ‘groups of
families’ may also include members of that ‘group’
residing outside the common communal area.













[37]
In conjunction with this the legislature has delineated, through
definition, who the ‘members’ of the referred to
‘indigenous homogeneous, endogamous social ‘groups of
persons’ would be, which ‘groups’, in turn would be
comprised of ‘families’ derived from exogamous clans in
relation to a traditional community and such ‘families’
members’.













[38]
In order to qualify as a ‘member’ of such a ‘group’
comprised of ‘families’ a person would at least have to
have one parent belonging to a particular traditional community,
which ‘category’ of persons would also include any other
person who by marriage to or adoption by a member of that traditional
community would have assimilated the culture and traditions of that
traditional community and who has been accepted by the traditional
community as a ‘member’ thereof,
which
‘category’ of persons would also include such persons,
who by any other circumstance, would have assimilated the culture and
traditions of that traditional community and who have been accepted
by the traditional community as a member thereof.













[39] In addition to
persons with at least one parent belonging to a particular
traditional community it would appear that the legislature has
created two further categories of persons as falling within the ambit
of this definition.













[40] The first additional
category of persons would also include – persons –









  1. who, by marriage or
    adoption, by a member of that traditional community, would have
    assimilated the culture and traditions of that traditional community









and









  1. who have been accepted
    by the traditional community as a ‘member’ thereof.














[41] The second
additional category of persons contemplated by the definition is
comprised of persons –














  1. who, by any other
    circumstance, would have assimilated the culture and traditions of
    that traditional community









and









  1. who have been accepted
    by the traditional community as a ‘member’ thereof.














[42] It is common cause
that the applicant is of Scottish descent. He did thus not originally
belong to the indigenous homogeneous, endogamous social ‘groups’
of persons, which ‘groups’ in turn are comprised of
‘families’ derived from exogamous clans which share the
common ancestry, language, cultural heritage, customs and traditions
of the Hambakushu. There is also no evidence that he has at least one
parent belonging to the Hambakushu community or that he ever became
part of the Hambakushu community by marriage or adoption, as a result
of which marriage or adoption he assimilated the culture and
traditions of the Hambakushu. Applicant thus cannot fall into these
categories.













[43] It is obvious that
the applicant can possibly only fall into the second additional
category by virtue of ‘any other circumstance’, as argued
by Mr Ncube.








[44] In my view however
Mr Tjombe is correct in his submission that the mere fact –
that the applicant has been operating a lodge in the area for some 20
years and which he occupies by virtue of a lease, which he has
concluded with the second respondent – is not sufficient –
on its own - to prove that the applicant has assimilated the culture
and traditions of the Hambakushu community. There is simply no other
fact or circumstance on record which proves, or from which the
inference can be drawn that the applicant has assimilated the culture
and traditions of the Hambakushu traditional community in any manner
whatsoever. On the contrary, he does not even understand and thus
does not speak the Hambakushu language.













[45] Even if I were wrong
in coming to this conclusion Mr Ncube’s argument in any event
also falls short on the second leg, namely, in regard to the further
requirement, that the applicant also has to be shown to have been
accepted by the Hambakushu traditional community as a member thereof.
Also in this regard not a single shred of evidence was tendered.













[46]
It must therefore be
concluded on the facts that the applicant cannot be regarded as a
member
5
of the Hambakushu
traditional community
6
and as being a person in
respect of which the powers and functions as set out in section 3 of
the Traditional Authorities Act 2000 could have been exercised.













[47] The respondents thus
had no authority and jurisdiction in terms of that Act to subject the
applicant to a hearing before a traditional court.













[48] Although this aspect
was not raised or argued – the only question which remains is
whether the respondents - by virtue of their customary law - would
have had the authority and jurisdiction to subject and try the
applicant in their traditional court?








[49]
The short answer to this question is supplied by the definition of
"customary law" - as also contained in section 1 of the Act
- which defines ‘customary law’ to mean
the
customary law
,
norms,
rules
of procedure
,
traditions and usages of a traditional community
in
so far as they do not conflict
with
the Namibian Constitution or
with
any other written law applicable in Namibia
.
(my underlining)













[50] The Traditional
Authorities Act 2000 is clearly such ‘other written law
applicable in Namibia’. Its terms - as I have endeavoured to
demonstrate above - limit the authority and jurisdiction of
traditional courts to the ‘members’ of a ‘traditional
community’, as defined. Any ‘customary law’
conferring such authority and jurisdiction vis a vis
‘non-members’ of a traditional community would thus be in
conflict with the ‘written law’, and thus cannot prevail.













[51] In my view the
dispute in this matter had to be pursued and ventilated in the civil
and/or criminal courts of the State as contemplated in Chapter 9 the
Namibian Constitution.













[52] It follows that the
complained of proceedings are a nullity and fall to be set aside in
toto
.













[53] In view of these
findings the need to decide whether or not applicant subjected
himself to the proceedings before the traditional court freely and
voluntarily or under duress falls away as it is obvious that one
cannot subject oneself to something which amounts to a nullity.













[54] Given the
circumstances sketched above - and despite the protestations of
innocence – which are to the greatest extent neutralized by
virtue of the factors set out in paragraph [12] supra, I also believe
that the conduct of at least the first to third respondents is
deserving of censure as a result of which I am also prepared to grant
the costs order as prayed for.








[55] The application is
granted in the following terms:














  1. The decision of the
    First and Second Respondents to subject the Applicant to a trial or
    hearing in the Hambukushu Customary Court is declared to be null and
    void and is hereby reviewed and set aside.



  2. The proceedings of the
    Hambukushu traditional court of 20 February 2010 in respect of the
    purported trial or hearing of the Applicant, is declared to be null
    and void and is hereby reviewed and set aside.



  3. The First and Second
    Respondents are ordered to repay to Applicant the amount of
    N$60,000.00 on or before 30 October 2012 together with interest at
    the rate of 20% per annum from 2 March 2010 to date or payment.



  4. The First and Second
    Respondents are ordered to return to the Applicant the Applicant’s
    digital reorder as confiscated on 20 February 2010 on or before 30
    October 2012.



  5. The First to Third
    Respondents are to pay the costs of this application on an attorney
    and own client scale.





























----------------------------------



H GEIER



Judge











































APPEARANCES








APPLICANT: N. TJOMBE



Tjombe-Elago Law Firm
Inc,



Windhoek.








RESPONDENTS: J. NCUBE



Government Attorneys,



Windhoek
























1Founding
affidavit para’s 28.2 -28.16





2Founding
affidavit para 30





3It
reads: ‘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.’





416
.A traditional authority shall in the exercise of its
powers and the performance of its duties and functions under
customary law or as specified in this Act give support to the
policies of the Government, regional councils and local authority
councils and refrain from any act which undermines the authority of
those institutions.





5As
defined





6As
defined