Court name
High Court
Case number
80 of 2012
Title

Isaack NO and Another v Fleermuys and Another (80 of 2012) [2012] NAHC 261 (11 October 2012);

Media neutral citation
[2012] NAHC 261
Coram
Geier J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 80/2012








In the matter between:








JOHANNES ISAACKS, N.O.
................................................................1ST
APPLICANT



/HAI-/KHAUA
TRADITIONAL AUTHORITY ........................................2ND
APPLICANT



and



JOHANNES FLEERMUYS
................................................................1ST
RESPONDENT



COUNCIL OF TRADITIONAL
LEADERS ........................................2ND
RESPONDENT








Neutral citation:
Isaack v Fleermuys (A 80/2012) [2012] NAHCMD 20 (11
October 2012)








Coram: GEIER J



Heard: 18
September 2012



Delivered: 11
October 2012








Flynote: Traditional
Authorities Act 25 of 2000 – interpretation of section 3(4) -
as read with sections 1, 2, 3, 4, 5, 6 and 7 – provisions of
act and scheme created thereby indicating that legislature intended
only one traditional authority – comprised of a chief or head
of that traditional community - designated and recognized in
accordance with the Act - and senior traditional councillors and
traditional councilors - appointed or elected in accordance with the
Act - for a particular traditional community –








Traditional
Authorities Act – interpretation of section 3(4) - as read with
sections 1, 2, 3, 4, 5, 6 and 7 – provisions of act and scheme
created thereby indicating that legislature intended that only a duly
appointed traditional authority would be the entity that would be
authorized by statute to exercise the powers and duties set out in
Sections 3 and 7 of the Act – such intention to be inferred as
otherwise the legislature would not have visited certain acts of a
dissident group within a traditional community and within the area of
jurisdiction of an established traditional authority with invalidity
and criminal liability and sanction -



Intended inauguration
of a second chief, by a particular group within a traditional
community, within the area of jurisdiction of an already duly
established traditional authority with a duly designated chief
declared to be in conflict with the Traditional Authorities Act –
therefore declared unlawful – intended conduct interdicted








Summary:
Applicants – the duly designated and
gazetted chief and traditional authority of the
/Hai-/Khaua,
also occupying the Berseba area, had obtained an urgent interim order
interdicting the planned inauguration of the first respondent, as
chief
of the purported Goliath Traditional
Authority in Berseba on 21 April 2012 – On the return day the
question arose whether or not the applicants had established a clear
right for purposes of having the interim relief confirmed – the
parties being agreed that in the event of the applicants being able
to show such clear right the first respondent’s conduct would
satisfy the further requirements for the confirmation of the rule –








Held : Given the
provisions of section 3(4) it had to be inferred that the legislature
intended only one traditional authority – comprised of one
chief or head of that traditional community - designated and
recognized in accordance with the Act – and only such senior
traditional councillors and traditional councilors - appointed or
elected in accordance with the Act - for that particular traditional
community – which :traditional authority would then also be the
entity that would be expressly authorized by statute to exercise the
powers and duties set out in Sections 3 and 7 of the Act –








Held : as the first
respondent and his followers – being a group of members of
the/Hai-/Khaua traditional community – were
attempting – through the first respondent’s inauguration
as chief - to
establish another authority purporting to be a
traditional authority for such group under the first respondents
chieftainship in an area where there was already a duly established
traditional authority – that such intended conduct would be in
breach of the provisions and the scheme created by the Traditional
Authorities Act-



Held : that it was to be
inferred that the first respondent and his followers trough the
intended establishment of their own traditional authority with its
own chief were obviously intending to ultimately exercise also the
functions contemplated in paragraphs (b) and (h) of subsection (1)
and paragraphs (a) and (b) of subsection (3) of section 3 of the
Traditional Authorities Act-



Held : Any such intended
acts would however be null and void and would attract criminal
sanctions in terms of section 3(4)(a) and (b) -



Held : that the
applicants had established a clear right for the granting of a final
interdict and a reasonable apprehension of the infringement of such
rights as a result of the conduct of the first respondent and his
followers - Rule nisi thus confirmed in material respects-










ORDER















The
rule nisi granted on 20 April 2012, as extended, is hereby confirmed
to the following extent:








(a)
The first respondent is hereby interdicted and restrained from being
inaugurated or designated as chief of one purported Goliath
Traditional Authority in contravention of the Traditional Authorities
Act, Act 25 of 2000, as amended (hereinafter as the Traditional
Authorities Act);








(b)
The first respondent is hereby interdicted from participating in any
event purporting to inaugurate or designate him as a chief of one
purported Goliath Traditional Authority in Berseba in contravention
of the Traditional Authorities Act;








(c)
The first respondent is hereby interdicted and restrained from
instigating and spearheading the inauguration or designation of
himself or any other person as chief of one purported Goliath
Traditional Authority in Berseba in contravention of the Traditional
Authorities Act;








(d)
The members of the purported Goliath Traditional Authority in Berseba
who seek the inauguration and designation of the first respondent are
hereby interdicted and restrained from participating in any conduct
purporting to inaugurate or designate the first respondent or any
other person as chief of the purported Goliath Traditional Authority
in Berseba in contravention of the Traditional Authorities Act;








(e)
The conduct of the first respondent, or any other person, that is
aimed at inaugurating or designating the first respondent or any
other person as chief of one purported Goliath Traditional Authority
in Berseba in contravention of the Traditional Authorities Act, is
hereby declared illegal and null and void.








(f)
The first respondent is to pay the costs of this application.















JUDGMENT










GEIER J:








[1] The
first applicant is the traditional leader of the /Hai-/Khaua
Traditional Authority.
This traditional
authority then is also the second applicant herein.








[2] The first applicant
has been duly designated as chief of the /Hai-/Khaua traditional
community in accordance with the requirements set by the Traditional
Authorities Act 25 of 2000.








[3]
The second applicant has been duly established in terms of the
Traditional Authorities Act 2000.








[4] The first respondent
and his community the ‘goliath traditional community’
have been trying to obtain the first respondent’s recognition
as a traditional leader since 1998.








[5]
The first applicant on the other hand has held his official
designation
1
since
20 October 2011.








[6]
On 19 March 2012 the first applicant learnt that an event was planned
for the 21
st
of
April 2012,
to
be held at Berseba,,at which event the first respondent was to be
inaugurated as the chief of the so-called “Goliath Traditional
Authority of Berseba”.








[7] Berseba however is a
village within the area occupied by the traditional community of the
/Hai-/Khaua and falls within the area of jurisdiction of the
/Hai-/Khaua Traditional Authority of which the first applicant is the
chief. The first respondent and his followers constitute a group
within the traditional community of the /Hai-/Khaua.








[8] It does not take much
to fathom that the planned event had all the ingredients for a
further conflict within the community and would not go unchallenged.








[9] There is indeed a
history of conflict within the community inhabiting the Berseba area,
which also relates to the recognition of its leaders.








[10] The parties thus
almost immediately obtained legal representation. In the ensuing
correspondence it was already pertinently pointed out, inter alia, to
first respondent that, in terms of the Traditional Authorities Act,
no other traditional authority can be installed in the area under the
jurisdiction of a recognised traditional authority.








[11] In spite of such
warning and as no clear response was forthcoming from the first
respondent and his followers, that they would desist with the planned
inauguration, and as the applicants viewed the threatened instalment
of another chief in an area, where there was already a chief, as a
serious threat to the first applicant’s chieftainship and also
to the authority of the second applicant, the first and second
applicants approached the court on an urgent basis for interim
interdictory relief on 20 April 2012, which was granted to the
following extent:








(a)
The 1
st
and 2
nd
applicant’s non-compliance with the requirements relating to
forms and service are hereby condoned and that this matter is heard
as one of urgency as contemplated by Rule 6(12) of the Rules of this
Honourable Court.








(b)
A rule nisi is hereby issued calling upon the first and second
respondent’s to show cause, if any, on the 31st
of May 2012 at 10:00 why an order in the following
terms should not be made:








(c)
Interdicting and restraining the first respondent from being
inaugurated or designated as chief of one purported Goliath
Traditional Authority in Berseba on 21 April 2012 at 09H00 or on any
other day in contravention of the Traditional Authorities Act, Act 25
of 2000, as amended (hereinafter as the Traditional Authorities Act);








(d)
Interdicting and restraining the first respondent from participating
in any event purporting to inaugurate or designate him as a chief of
one purported Goliath Traditional Authority in Berseba on 21 April
2012 or on any other day in contravention of the Traditional
Authorities Act;








(e)
Interdicting and restraining any other person from instigating and
spearheading the inauguration or designation of the first respondent
or any other person as chief of one purported Goliath Traditional
Authority in Berseba on 21 April 2012 or on any other day in
contravention of the Traditional Authorities Act;








(f)
Interdicting and restraining any other person from participating in
any conduct purporting to inaugurate or designate the first
respondent or any other person as chief of the purported Goliath
Traditional Authority in Berseba in contravention of the Traditional
Authorities Act;








(g)
An order declaring the conduct of the first respondent, or any other
person, that is aimed at inaugurating or designating the first
respondent or any other person as chief of one purported Goliath
Traditional Authority in Berseba in contravention of the Traditional
Authorities Act, as illegal and null and void.








(h)
That the first respondent pay the costs of this application.








(i)
The orders set out in paragraphs 2.1, 2.2, 2.3, 2.4, and 2.5 shall
operate with immediate effect pending the finalization of this
application.








(j)
The applicants are directed to serve this application and this order
on the 2nd respondent.’








[12]
On the extended return date the applicants now seek confirmation of
the rule nisi obtained against first and second respondents.









[13]
In this regard it will have to be determined whether the applicants
have established the requisites for the granting of a final
interdict.
2








[14]
Also impacting on any confirmation of the rule now sought is that
those portions of the rule nisi - which relate to the past planned
events of 21 April 2012 - are factually no longer capable of
confirmation.













[15] The parties’
legal representatives were further ad idem that, - if the applicants
would be able to establish, that the Traditional Authorities Act does
not provide for the recognition and the designation of more than one
traditional leader within one traditional authority and community –
that in such event the complained of endeavours of the first
respondent, to be inaugurated and/or designated as chief within the
area of jurisdiction of the /Hai-/Khaua Traditional Authority, would
constitute an infringement of such rights – or that there was
at the very least a ‘reasonable apprehension’ of such
infringement, which finding would thus also establish the second and
third requirements for the granting of a final interdict.








[16] The legal
representatives of the parties were thus agreed that the outcome of
this case would turn on the question of whether or not the
applicants’ have established a clear right to the relief
sought.








[17] Mr Khama, who
appeared on behalf of the applicants, submitted that the applicants
have indeed made out such case.








[18] More particularly he
submitted that the respondents cannot interfere with the rights and
powers of the applicants while the statutory designated leader is
still in place and that the first respondent thus cannot be
inaugurated as chief of a traditional community which recognises the
first applicant as chief in a community that recognises the second
applicant as its traditional authority in the community that is
inhabiting the common communal area known as Berseba. He relied in
this regard, in the main, on the provisions of sections 4,5,6,7 and 8
of the Traditional Authorities Act 2000.








[19] Mrs Schulz, on the
other hand, submitted, on behalf of the first respondent, that it was
clear from the outset that there is a division between two clans
within the traditional community inhabiting the Berseba area and that
several attempts had been made in the past to obtain the recognition
of the first respondent as a traditional chief and his followers as a
traditional authority in their own right. The first respondent wishes
to replace his predecessor, Chief Karools, as he has been elected by
a part of the traditional community to do so and his inauguration was
thereafter planned. The common practice in traditional communities is
that if a royal bloodline exists a chief shall be replaced by a son
or any other relative and that such relative shall be the next Chief
of the traditional community. The first respondent is already known
as the chief to his traditional community. Therefore the first
respondent and his community should be legally recognized. She argued
further that the Government should therefore be objective in its
approach because the dispute concerns two clans who both applied for
recognition as a traditional authority in their own right with a
chief and a council. She thus submitted that the first respondent had
made out a case that the rule nisi should not be made a final and
that the court should ‘recognize the first respondent as a
traditional Chief to be inaugurated as such in his traditional
community together with first applicant.



[20] Given the parameters
of these issues it does not take much to fathom that the
determination of this dispute hinges on the provisions of the
Traditional Authorities Act 2000 and the scheme created by it. So
much must have been clear also to the parties.








[21] Why of course the
fairly obvious provisions of section 3(4) of the act where ignored or
overlooked remains inexplicable. That section decrees:








(4) Where a traditional
authority referred to in section 2(1) has been established for a
traditional community, and a group of members of that traditional
community establishes in conflict with the provisions of this Act
another authority purporting to be a traditional authority for such
group, and any member of such last-mentioned authority exercises or
performs any of the functions contemplated in paragraphs (b) and (h)
of subsection (1) and paragraphs (a) and (b) of subsection (3) of
this section-



(a) any such act shall
be null and void; and



(b) such member shall
be guilty of an offence, and upon conviction be liable to a fine of
N$4 000 or to imprisonment for a period of twelve months or to both
such fine and imprisonment.








[22] If one then
considers the underlying common cause factual position against the
backdrop of this section: ie









  1. were
    a traditional chief
    3
    - here the first
    applicant – was already designated in accordance with section
    4(1)(a) and recognised as such under section 6.as the supreme
    traditional leader of the
    /Hai-/Khaua
    traditional
    community;
    and



  2. were
    a traditional authority
    4
    here the second
    applicant – has already been established for the
    /Hai-/Khaua
    traditional
    community
    in terms of section 2 of the Traditional Authorities Act 2000; and



  3. were
    the first respondent and his followers are part of that traditional
    community
    5
    inhabiting the Berseba
    area and therefore fall under the jurisdiction and authority of the
    applicants; and



  4. were
    the first respondent’s followers – being a group of
    members of the
    /Hai-/Khaua
    traditional community – are attempting – through the
    first respondent’s inauguration as chief - to
    establish
    another authority purporting to be a traditional authority for such
    group under the first respondents chieftainship -









it must be inferred also
that - once the intended further traditional authority would have
been established by the first respondent and his followers –
that they would obviously also intend to exercise the functions
contemplated in paragraphs (b) and (h) of subsection (1) and
paragraphs (a) and (b) of subsection (3) of section 3 of the
Traditional Authorities Act.













[23]
Any such acts would however be null and void
6
and would attract
criminal sanctions
7.








[24]
What is more is that it is without doubt that the provisions of
section 3(4) imply that the legislature intended only one traditional
authority
8
comprised of a
chief or head of that traditional community
9
- designated and
recognized in accordance with the Act - and senior traditional
councilors and traditional councilors - appointed or elected in
accordance with the Act
10
- for a traditional
community
11
which traditional
authority
12
will then also be the
entity that is expressly authorized by statute to exercise the powers
and duties set out in Sections 3 and 7 of the Act - as otherwise the
legislature would not have visited the listed acts
13
of a dissident group
within a traditional community and within the area of jurisdiction of
an established traditional authority with invalidity and criminal
liability.








[25]
This conclusion is reinforced by the terminology utilized in the Act.
The terms ‘chief’ or ‘traditional leader’ -
(defined to mean the ‘supreme traditional leader’) - do
not imply ‘co-chiefs’ or ‘co-traditional leaders’-

and in any event and by
that same token – the term ‘authority’ does not
imply more than one authority in the absence of a clear expression to
the contrary. Any other interpretation would also not give effect to
the word ‘supreme’, as used in the definition of the term
‘chief’, which term has been defined to mean ‘
highest in authority, rank or degree’.
14
If the legislature would
have contemplated a traditional authority scheme with more than one
chief and more than one traditional authority within a particular
traditional community it would have been an easy matter to have
expressed this. This the legislature did however not elect to do.








[26] It follows that the
applicants were able to establish clear rights in terms of the above
listed sections of the Traditional Authorities Act 2000.








[27] In the premises it
must also be concluded that the first respondent’s complained
of conduct has established that the applicants correctly harboured a
reasonable apprehension that the first respondent and his followers
were about to infringe the rights conferred on the applicants by the
Traditional Authorities Act 2000.








[28] In the absence of
any other satisfactory remedy the applicants have shown their
entitlement to the confirmation of the rule. The rule nisi granted on
20 April 2012, as extended, is accordingly confirmed to the following
extent :








(a)
The first respondent is hereby interdicted and restrained from being
inaugurated or designated as chief of one purported Goliath
Traditional Authority in contravention of the Traditional Authorities
Act, Act 25 of 2000, as amended (hereinafter as the Traditional
Authorities Act);








(b)
The first respondent is hereby interdicted from participating in any
event purporting to inaugurate or designate him as a chief of one
purported Goliath Traditional Authority in Berseba in contravention
of the Traditional Authorities Act;








(c)
The first respondent is hereby interdicted and restrained from
instigating and spearheading the inauguration or designation of
himself or any other person as chief of one purported Goliath
Traditional Authority in Berseba in contravention of the Traditional
Authorities Act;








(d)
The members of the purported Goliath Traditional Authority in Berseba
who seek the inauguration and designation of the first respondent are
hereby interdicted and restrained from participating in any conduct
purporting to inaugurate or designate the first respondent or any
other person as chief of the purported Goliath Traditional Authority
in Berseba in contravention of the Traditional Authorities Act;








(e)
The conduct of the first respondent, or any other person, that is
aimed at inaugurating or designating the first respondent or any
other person as chief of one purported Goliath Traditional Authority
in Berseba in contravention of the Traditional Authorities Act, is
hereby declared illegal and null and void.








(f)
The first respondent is to pay the costs of this application.























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



H GEIER



Judge













APPEARANCES








APPLICANTS: D KHAMA



Instructed by Government
Attorney,



Windhoek.








RESPONDENTS: F SCHULZ



PD Theron & Associates,



Windhoek
























1See
Proclamation No 16 - Government Gazette No 4834 of 15 November 2012





2ie
: (i) a clear right; (ii) unlawful interference with that right,
actually committed or reasonably apprehended; and (iii) the absence
of any other satisfactory remedy' (per Smalberger JA in
Diepsloot
Residents' and Landowners' Association and Another v Administrator,
Transvaal
1994 (3) SA 336 (A) at
344I-J) – As adopted for instance in :
PASSANO
v LEISSLER
2004 NR 10 (HC) at p14 H-
I'





3As
defined in section 1 of the Traditional Authorities Act 25 of 2000





4As
defined in section 1 of the Traditional Authorities Act 25 of 2000





5As
defined in section 1 of the Traditional Authorities Act 25 of 2000





6Section
3(4)(a)





7Section
3(4)(b)





8As
defined





9Section
2 (1)(a)





10Section
2 (1)(b)





11As
defined





12As
defined





13contemplated
in paragraphs (b) and (h) of subsection (1) and paragraphs (a) and
(b) of subsection (3) of section 3 of the Traditional Authorities
Act





14See
for instance : Oxford Advanced Dictionary 4
th
Ed at p 1293