Nenkwaya and Another v Nenkwaya and Another (APPEAL 262 of 2008) [2010] NAHC 11 (17 January 2010);
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:
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.
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;
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;
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