‘Reportable’

SUMMARY

CASE
NO.: A 78/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

ANTON
KAZARONDA KANDJIMA AND ANOTHER v DAVID KAKERO

PARKER
J

2011
August 9

_______________________________________________________________________

Spoliation
- Mandament van spolie – Possession – What
constitutes – Applicants being members of Church of which
respondent is Archbishop – Applicants seeking restoration of
their right to access to, and use of, church (building) – Court
finding that applicants being members of the Church have the Article
21(1)(c) (of the Namibian Constitution) right to use the church for
legitimate Church activities as they had been doing before being
unlawfully deprived of possession thereof by conduct of the
respondent – On the facts Court finding that the nature of
access to, and use of, the church by the applicants in the present
proceedings are incomparable on any legal plane to the mere right to
access to, and use of, property described in Paula de Beer v The
Zimbali Estate Management Association (Pty) Ltd and Zimbali
Development Company (Pty) Ltd Case No. 6711/2005 (Natal
Provisional Division) (Unreported) and in Shoprite Checkers Ltd v
Pangbourne Properties 1994 (1) SA 616 (W) – Court
concluding that the applicant’s access to, and use of, the
church amounted to incorporeal rights and give rise to ‘possession’
– Court finding that applicants have established that they were
in undisturbed and peaceable possession of the church and the
respondent unlawfully deprived them of possession thereof –
Consequently Court concluding applicants are entitled to relief of
the mandament van spolie.

Held,
that whether one’s right to access to, and use of, property
could give rise to ‘possession’ depends upon the facts to
the particularly case, including whether such right to access to, and
use of, the property has been in pursuit of one’s enjoyment of
one’s constitutional right, and such ‘right to use’
the property cannot be described as ‘mere right to use the
property’.

CASE NO.: A 78/2011

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

ANTON KAZARONDA
KANDJIMA …..................................................First
Applicant

IMMANUEL HEKEMO
…..................................................................Second
Applicant

and

DAVID KAKERO
…....................................................................................Respondent

CORAM:
PARKER J

Heard on: 2011 July 19

Delivered on: 2011 August
9

_________________________________________________________________

JUDGMENT

_________________________________________________________________

PARKER
J: [1] In respect of an application the Court granted an
order on 7 April 2011 in the following terms:

(1)
That a Rule Nisi be issued calling upon the respondent to show
cause, if any, on a 14 April 2011, why the following order should not
be granted:

1.1
That the respondent be ordered to restore to the applicants their
right of access to and use of the Church building of the St Stephen
Romanna Apostolic Church of Africa, situated at Erf 2386, Ferdinand
Menjengua Street, Katutura, Windhoek;

(2)
That prayer 2.1 shall operate as an interim interdict pending the
return date of the said Rule Nisi.’

[2]
At the beginning of the hearing on 19 July 2011, as the returned
date, an application was before this Court by the legal
representative of the respondents, Mr Kaumbi, for the late filing of
counsel’s heads of argument. Mr Van Vuuren, counsel for the
applicants, informed the Court that he was not objecting to the
granting of the application: he did not want the application to stand
in the way of the expeditious adjudication of the matter. In any
case, I have perused counsel’s explanation for the late filing
of the heads of argument, and having done so, I have no difficulty in
accepting the explanation as good and bona fide, and so I
condone the late filing of the heads of argument.

[3]
It seems to me that this case, despite the fact that it has been
argued extensively and I have been referred to quite a number of
authorities on the principle of spoliation, which is trite anyway,
falls within an extremely short, narrow and simple compass. The
essence of the issue at play in this matter is, to my mind, this: Was
there undisturbed and peaceable possession of the church (building)
by the applicants for legitimate worship-related and other church
activities until and up to 4 March 2011 (‘the critical date’),
that is, the date on which unlawful dispossession allegedly took
place? In this regard, pace Mr Phatela, as Greenberg JA stated
in Nienaber v Stuckey 1945 AD 1021 at 1056, ‘apart from
authority (there is) no reason why the relief should not be available
merely because the person who has been despoiled does not hold
exclusive possession.’

[4]
Furthermore, it must be remembered that the content, scope and
signification of ‘possession’ are not fixed or immutable.
For instance, ‘possession’ in Nienaber v Stuckey
supra concerns the appellant’s right to plough lands; and
there, the Court found that when the respondent locked the gate he
effectively despoiled the appellant’s possession. Thus, in
Nienaber v Stuckey the signification of ‘possession’
is the right to use land and the nature of the right is incorporeal
(at 1055). In this regard it has been held that incorporeal rights
are protected against spoliation (Nienaber v Stuckey at 1056).
Paula de Beer v The Zimbali Estate Management Association (Pty)
Ltd and Zimbali Development Company (Pty) Ltd Case No. 6711/2005
(Natal Provincial Division) (Unreported) concerns the applicant (an
estate agent) complaining that she has been despoiled because she was
denied access to the whole Zimbali Estate, including the Beach
Estate, which access was gained through a boom-gate and the access
was restricted and controlled by the first respondent. Thus, in Paula
de Beer ‘possession’ was grounded on a right of
access to land. The Court found that the applicant was entitled to
access to the Beach Estate but not to the two other parts.

[5]
Thus, as I understand the ratio decidendi of that case, access
to land or premises may give rise to possession – but not
always so. In Paula de Beer supra Nicholson J gave the
following examples where access does not give rise to ‘possession’.
A visitor to premises could not seek a spoliation order in respect of
those premises. The milkman, the insurance salesman and the estate
agent have access to, but not possession of, the units of buildings
and communal property or, indeed, any buildings where they supply
goods and services to the residents or occupiers of the buildings and
property involved.

[6]
Accordingly, in my opinion, whether access to, and use of, property
could give rise to ‘possession’ depends upon the facts of
the particular case. For instance, in Shoprite Checkers Ltd v
Pangbourne Properties 1994 (1) SA 616 (W) at 622 B-C Zulman J
stated that the applicant might or might not have had a right,
derived from a contract which it entered into with the respondent, to
make use of the parking area and that ‘did not … amount
to a “possession” as envisaged in the authorities, of
such designated area for the purposes of establishing an entitlement
to the mandament van spolie’. Zulman J then held (at 623G) that
the ‘mere right to use property’ does not amount
to possession of property. It follows that on the facts in Shoprite
Checkers Ltd v Pangbourne Properties supra, the fact that the
applicant had access to the parking areas, that is, their ‘mere
right to use’ the parking areas – without more –
did not amount to the applicant’s possession of the parking
area which customers of both the applicant and Shoprite Cape, as also
its employees, made use of in the normal course of their business.

[7]
On the facts and circumstances of the instant case, the following
irrefragable aspects appear clearly, as put in para 11 of the
founding affidavit -

Before
the dispute, an elder in the Church would keep the key. He would open
the Church in the morning and close it again after about 22h00 in the
evening depending on when the last activity for the day is finished.
All the members of the Church thus had access to the church to
conduct religious activities ranging from prayer; worship, bible
study, offering services, to receive blessing and choir practice. The
membesr would normally conduct these activities under the leadership
of a pastor, elder or bishop. This does not mean that members are not
allowed to use the church without such leadership. Individual members
are free to come to the church for prayer and other religious
activities. The respondent is aware of this and had admitted as much
in previous proceedings’

[8]
Significantly, in his answering affidavit (para 6.1), the respondent
admits the contents of the said para 11 subject to the qualification
in his para 6.2:

‘6.1
Subject to the qualification set out in sub-paragraph 6.2 below, the
content is admitted.

6.2
By decision of the executive committee as referred to in
sub-paragraph 4.5 above (i.e. of the affidavit), I, as Archbishop,
keep the keys to the church building in my possession unless I am
directed otherwise by the executive committee.’

[9]
What emerges clearly from these statements is that the respondent
does not dispute that members of the Church have the right to access
to, and use of, the church for the activities mentioned in the said
para 11. In any case, in my opinion, the nature of the right to
access to, and use of, the church is incomparable on any legal plane
to the nature of the right to ‘access’ or ‘use’
found to exist in Shoprite Checkers Ltd supra, or the nature
of the right to access to, or use of, ‘the other parts’
of the Estate found to exist in Paula de Beer supra or the
nature of the right to ‘access’ or ‘use’ by
the ‘the visitor, the milkman, the insurance salesman and the
estate agent’ mentioned in Paula de Beer supra. The
nature of the right to ‘access’ or ‘use’ in
the instant case is in the nature of incorporeal rights as in
Nienaber v Stuckey supra; and, in my opinion, the right to
access to, or use of, the church is capable of giving rise to
possession, entitling the applicants to the relief of the mandament
van spolie. The applicants qua Church members in the instant
case, as submitted by Mr Van Vuuren, who have the constitutional
right to practise their religion, must have their right to possession
of the church for that purpose protected by spoliation. The Church
members are not customers or employees who ‘use the parking
area in the normal course of their businesses’ as described in
Shoprite Checkers Ltd supra at 622A. Additionally, the Church
members are not the visitor, the milkman, the insurance salesman and
the estate agent mentioned in Paula de Beer supra at para 55.
In these proceedings, as members of the Church, the applicants have
the right to use the church for the legitimate activities
aforementioned. The applicants joined the particular denomination or
religious community in order to exercise their Article 21(1)(c) right
to practise their religion and to manifest such practice; and so,
‘mere’ is not an epithet I will use to characterize the
applicants’ right to access to, or use of, the church for
Church activities in pursuit of their constitutional right, as
aforesaid, before being unlawfully deprived thereof by the respondent
who now wishes to hide behind the Executive Committee for so
unlawfully depriving them.

[10]
With the greatest deference to Mr Phatela, I do not pay any heed to
the Settlement Agreement that Mr Phatela was so much enamoured with
for the following reasons. The respondent has not come to Court to
enforce the so-called Settlement Agreement; but more importantly, it
is clear on the papers that the ongoing tussle within the community
of the Church has not abated despite the so-called Settlement
Agreement, ‘numerous court proceedings’, and the judicial
counsel by my brother Smuts J in his judgment delivered on 1 April
2011 in David Kakero and Another v Immanuel Hekemo and Others
Case No. A 20/2011 (Unreported), a related matter. All these efforts
have not brought an end to the infighting in the Church or any
respite at all.

[11]
What is relevant in these proceedings is rather that, as I have said
previously, the respondent does not dispute the applicants’
incorporeal right to use the church by the Church members. His only
qualification which adds no weight in his favour but adds a great
deal of weight to the applicant’s case is that he kept the keys
to the church for and on behalf of the Executive Committee of the
Church ‘unless I am directed otherwise by the executive
committee’. As Mr Van Vuuren submitted, what the respondent
does not say is ‘where the decision of the Executive Committee,
telling the respondent to stop giving access to the church to the
church members, is’.

[12]
From all the above, I conclude that the respondent’s position
is that he has unlawfully deprived the members of their undisturbed
and peaceable possession of the church, but that he has done so on
the authority of the Executive Committee and he would have restored
that right if he had been told to do so by the Executive Committee.
But the respondent has not produced any grain of evidence to
establish that the Executive Committee authorized him to despoil the
applicants of possession of the church on the critical date (4 March
2011); and neither would any such authorization have rescued the
respondent’s case from falling flat on its face.

[13]
For the aforegoing reasoning and conclusions, I am satisfied that the
applicants have established that they were in undisturbed and
peaceable possession of the church and that the respondent has,
through his conduct, unlawfully deprived the applicants of such
possession; and so the applicants are entitled to the relief of the
mandament van spolie. I, therefore, hold that a case has been made
out for the confirmation of the rule nisi. As to costs; I
think costs should follow the event; but I am not persuaded that, in
the nature of the matter, costs should be on the scale as between
attorney (legal practitioner) and client.

[14]
In the result:

1. the
   rule nisi is confirmed.

   
   

2. the
   respondent must restore to the applicants their right of access to,
   and use of, the church building of the St Stephen Romanna Apostolic
   Church of Africa, situated at Erf 2386, Ferdinand Menjengua Street,
   Katutura, Windhoek.

   
   

3. the
   respondent must pay the applicants’ costs of this application
   on a scale as to party and party; such costs to include costs
   attendant upon the employment of one instructing counsel and one
   instructed counsel.

   
   

__________________

PARKER J

COUNSEL ON BEHALF OF
THE APPLICANTS:

Adv. A Van Vuuren

Instructed by:
LorentzAngula Inc.

COUNSEL ON BEHALF OF
THE RESPONDENT:

Adv. T C Phatela

Instructed by: JR
Kaumbi Inc.