15

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;

  
  

3. 
   That the applicants
   are a part of the "concerned group"; That the third
   applicant is the designated successor of the deceased;

   
   

4. 
   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