‘Reportable’

SUMMARY

CASE
NO.: A 189/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

CHIEF
JOEL STEPHANUS v DANIEL APOLLUS AND 19 OTHERS

PARKER
J

2012
May 10

_______________________________________________________________________

Practice
- Applications and motions – Notice of motion indicating
the relief sought is interim interdict – Court finding,
however, that although the relief is couched in the frame of rule
nisi, in reality applicant seeks a final order in the form of
mandament van spolie.

Spoliation
- Mandament van spolie – Court confirming earlier
authorities as to what applicant must establish in order to succeed –
Court finding that in instant case applicant has not been deprived
(let alone illicitly deprived) of his peaceful and undisturbed
possession of the chieftainship of the Vaalgras traditional community
and so the Court cannot as a matter of law and rudimentary logic
order the respondents to restore the applicant to the peaceful and
undisturbed possession of the chieftainship of the Vaalgras
traditional community – Consequently, Court finding that
applicant has not made out a case for the relief sought and
accordingly Court dismissing the application with costs.

Statute
- Traditional Authorities Act (Act No. 25 of 2000) – Court
finding that s. 8 of the Act provides for the removal of a chief or
head of a traditional community where sufficient reason exists –
Consequently, Court holding that in instant case the peaceable
process initiated by the respondents aimed at removing the applicant
for what they see as bad governance and maladministration on the part
of the applicant is not illegal or unconstitutional.

Held,
that if the Court made an order prohibiting the respondents from
taking any peaceable action aimed at removing the applicant in
pursuance of the enjoyment of their statutory right under s. 8 of the
Act, this Court would be acting outwit its powers, and such order
would be offensive of the Act.

Held,
further that bad governance or maladministration on the part of a
chief or head of a traditional community is sufficient reason within
the meaning of s.8 of Act No. 25 of 2000.

CASE NO.: A 189/2011

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

CHIEF JOEL STEPHANUS
…..........................................................................Applicant

and

DANIEL APOLLUS
…..........................................................................First
Respondent

JACOB APOLLUS
….....................................................................Second
Respondent

AARON LUKAS STEPHANUS
…......................................................Third
Respondent

LUKAS APOLLUS
….......................................................................Fourth
Respondent

GABRIEL BIWA
…..............................................................................Fifth
Respondent

BENEDICTUS BASSON
….................................................................Sixth
Respondent

ERIC BIWA
…................................................................................Seventh
Respondent

ERICK STEPHANUS
…....................................................................Eighth
Respondent

ANDREAS BIWA
…............................................................................Ninth
Respondent

JESAJA STEPHANUS
…..................................................................Tenth
Respondent

OTTO HINDA
…...........................................................................Eleventh
Respondent

IRMGARD EISEB
…........................................................................Twelfth
Respondent

KOSMAS DAMIANUS
APOLLUS ….........................................Thirteenth
Respondent

CHRISTIAAN APRIL
…............................................................Fourteenth
Respondent

JAN STEPHANUS
…...................................................................Fifteenth
Respondent

THOMAS APOLLUS
…...............................................................Sixteenth
Respondent

WILLEM APOLLUS
…...........................................................Seventeenth
Respondent

IMMANUEL HINDA
…...............................................................Eighteenth
Respondent

JOSEF P STEPHANUS
…........................................................Nineteenth
Respondent

THE CONCERNED GROUP
…...................................................Twentieth
Respondent

CORAM:
PARKER J

Heard on: 2012 April 18

Delivered on: 2012 May 10

_________________________________________________________________

JUDGMENT

_________________________________________________________________

PARKER
J: [1] This is an
application brought on notice of motion in which the applicant,
represented by Ms Schulz, seeks the relief set out in the notice of
motion. The respondents, represented by Mr Hinda, have moved to
reject the application. Although the relief sought is couched in the
frame of a rule nisi,
it seems to me clear that the relief that the applicant seeks is in
reality a final order, and I did not hear Mr Hinda or Ms Schulz argue
contrariwise. And I accept Mr Hinda’s submission that in
essence the relief sought is mandament
van spolie. That appears to
be the submission of Ms Schulz, too, albeit Ms Schulz does not use
the term mandament van
spolie (or spoliation);
nevertheless, counsel – unwittingly – submits, ‘The
matter before court is to grant a relief in which it is prayed for
that the respondents should restore (to) the applicant the peaceful
and undisturbed leadership, being the traditional chief of
Vaalgras Traditional Authority and to refrain from interfering in the
leadership by Chief Joёl Stephanus (the applicant) and
misleading the Traditional Authority’.

[2]
Thus, the burden of this Court in the present proceeding is,
therefore, to decide whether the applicant has placed before the
Court sufficient evidence entitling the applicant to the relief of
mandament van spolie. In this regard, the authorities converge
on the principle that in order to succeed the applicant who seeks a
spoliation order bears the burden of establishing that he or she was
in peaceful and undisturbed possession of the thing in question and
that he or she has been illicitly deprived of such possession.
(Constancia Muruko and Another v Godfriedine Kambatuku and Others
Case No. (P) A 282/206 (Unreported); Kuiiri and Another v Kandjoze
and Others 2009 (2) NR 447 (SC)) It follows indubitably and
reasonably that the only questions I must answer are these: (1) was
the applicant in peaceful and undisturbed possession of the
chieftainship of the Vaalgras traditional community, and (2) has the
applicant been illicitly deprived of such possession by the
respondents?

[3]
I accept the evidence on the papers and Ms Schulz’s submission
that the applicant is the traditional leader (that is, chief or head)
of the Vaalgras Community (‘the Community’) and is
accordingly the leader of the Vaalgras Traditional Authority (‘the
VTA’) in terms of the Traditional Authorities Act, 2000 (Act
No. 25 of 2000) (‘the Act’). Mr Hinda does not dispute
that fact. It follows that there is no dispute as to (1) in my
representation above; that is, the applicant is in peaceful and
undisturbed possession of the chieftainship of the Vaalgras
traditional community. I proceed to consider (2) in my representation
above; that is, has the applicant been illicitly deprived of
such possession by the respondents? And in this regard the key word
is ‘illicitly’, which I have italicized for emphasis.

[4]
There is not one jot or tittle of evidence placed before this Court
that establishes that the respondents have illicitly deprived the
applicant of his possession of the chieftainship of the Vaalgras
traditional community. Indeed, when I asked Ms Schulz whether the
applicant is still the chief of the Vaalgras traditional community
and therefore the leader of the Traditional Authority of the
Community, she answered in the positive. And I accept Mr Hinda’s
submission that ‘the relief for restoration of the applicant’s
“VTA’s (i.e. the Vaalgras Traditional Authority’s)
Chieftainship” must as a matter of fact be founded on evidence
that the applicant was unlawfully deprived of his Chieftainship of
(the) VTA.’ Thus, it follows irrefragably that since the
applicant has not been deprived – let alone illicitly deprived
– of his peaceful and undisturbed possession of the
chieftainship of the Vaalgras traditional community (that is, the
leadership of the Vaalgras Traditional Authority), this Court cannot
as a matter of law order ‘the Respondents to restore the
Applicant to the peaceful and undisturbed leadership being the
Traditional Chief of Vaalgras Traditional Authority (VTA)’.
Accordingly, I find that the relief sought has no merit at all in
law, or, indeed, in rudimentary logic; for, X cannot restore Y’s
possession of a thing when X has not deprived Y of Y’s
possession of the thing.

[5]
But that is not the end of the matter; and so it behoves me to
signalize the point that what the applicant has put forth as evidence
in support of the relief sought has no basis at all. The following
actions on the part of the respondents relied on by the applicant are
not illegal: they are not offensive of any provision of the Namibian
Constitution or the Act. The applicant relies
particularly on the following: (1) the print media and other campaign
(initiated by a ‘Concerned Group’) ‘to lift Chief
Joёl Stephanus (the applicant) from his leadership’, (2)
the letter inviting the applicant to a meeting of the Community (not
the VTA, I must stress), (3)
the letter written by the ‘Concerned Group’ to the then
Ministry of Regional and Local Government, Housing and Rural
Development, and (4) the Concerned Group’s campaign among the
Community members ‘to believe that I am not competent to be the
Traditional Chief (Leader)’.

[6]
Ms Schulz did not refer to me any law – and I do not find any –
which prohibits a section of a traditional community from campaigning
peaceably for the removal of their chief or head from his or her
office for bad governance or maladministration, for example. On the
contrary; the Act provides for the removal of a chief or head of a
traditional community where sufficient reason exists. And in my view
bad governance or maladministration on the part of a chief or head of
a traditional community is sufficient reason. Section 8 provides:

‘(1)
If there is sufficient reason to warrant the removal of a chief or
head of a traditional community from office, such chief or head may
be removed from office by the members of his or her traditional
community in accordance with the customary law of that community.’

[7]
The logical question that, with the greatest deference to Ms Schulz,
eludes Ms Schulz is this. If the law permits the removal of a chief
or head of a traditional community like the applicant where
sufficient reason is thought to exist, how can this statutory right
be enjoyed if a section of the community does not initiate the
process of removal where in their view sufficient reason exists to
remove the chief or head of their traditional community? In my
opinion, what the Act prohibits – I must signalize in this
regard – is a process that is criminal and violent, that is, a
process that is not peaceable. And I do not see in what manner any of
the four actions adumbrated previously can answer to the epithet of
violent or criminal, from which the applicant needs the protection of
the Court. On the contrary; if the Court made an order prohibiting
the respondents from taking any peaceable action aimed at removing
the applicant in pursuance of the enjoyment of their statutory right
under s. 8 of the Act, this Court would be acting outwit its powers,
and such order would be offensive of the Act.

[8]
For all the aforegoing ratiocination and conclusions, it is with firm
confidence that I reject the applicant’s application –
though argued with great verve by the applicant’s counsel. I
hold that the applicant has failed to make out a case for the relief
sought; whereupon I make the following order:

The
application is dismissed with costs; such costs to include costs of
one instructing counsel and one instructed counsel.

________________

PARKER J

COUNSEL ON BEHALF OF
THE APPLICANT:

Ms F E Schulz

Instructed by: PD
Theron & Associates

COUNSEL ON BEHALF OF
THE RESPONDENTS:

Adv. G S Hinda

Instructed by: Dr
Weder, Kauta & Hoveka Inc.