REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: A 356/13

In the matter between:

TURIMURO HOVEKA FIRST APPLICANT

HOVEKA ROYAL HOUSE SECOND APPLICANT

and

MINISTER OF LOCAL GOVERNMENT, HOUSING AND RURAL DEVELOPMENT FIRST RESPONDENT

COUNCIL OF TRADITIONAL LEADERS SECOND RESPONDENT

THE PRESIDENT OF THE REPUBLIC OF NAMIBIA THIRD RESPONDENT

OVAMABANDERU TRADITIONAL AUTHORITY FOURTH RESPONDENT

Neutral citation: Hoveka v Minister of Regional and Local Housing and Rural Development (A 356/2013) [2015] NAHCMD 63 (10 February 2015)

Coram: UEITELE, J Heard: 10 February 2015

Delivered: 10 February 2015

Reasons released on: 18 March 2015

Flynote: Customary law – Designation of Chief or Head of Traditional community – Traditional Community wishing to designate Head or Chief - Chief's Council or the Traditional Council of that community, or if no Chief's Council or Traditional Council for that community exists, the members of that community who are authorized thereto by the customary law of that community must apply on the prescribed form to the Minister for approval to make such designation, - Section 5 of the Traditional Authorities Act 25 of 2000 is mandatory – Non Compliance with s 5 (1) is fatal to any purported application.

Summary: This matter concerns the recognition of a person as a Chief, under the Traditional Authorities Act, 2000, of the Hoveka Traditional Authority in respect of the ‘Epukiro Traditional Community’.

On 12 October 2005 a person by the name of S Makono purported to apply in terms of the Traditional Authorities Act, 2000 for the approval, by the Minister responsible of Regional & Local Government, Housing & Rural Development, to designate Sylvanus Kaveriua Hoveka, as Chief of the Hoveka Royal House in respect of the Epukiro Traditional Community. On 22 May 2006 the Minister responded that ‘according to their record Epukiro falls under the jurisdiction of Mbanderu Royal House, a recognized Traditional Authority’. The Minister further stated that an application over a communal area that falls under the jurisdiction of a recognized traditional authority contravenes the provision of Section 5(3) of the Traditional Authorities Act, 2000 and that the Ministry is not in the position to consider the application submitted by Mr. Makono.

The Hoveka Royal House did not accept the decision of the Minister and between May 2006 and September 2013 correspondences were exchanged between the Hoveka Royal House, their legal representative and the Minister. When the exchange of the correspondences did not result in a favourable decision for the Hoveka Royal House, the latter and a certain Turimuro Retoveni Hoveka approached this Court seeking an order in terms of which this Court orders the Minister to recognize and gazette the Turimuro Retoveni Hoveka as the Chief of the Hoveka Royal House and to recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of Section 6 of the Traditional Authorities Act, 2000.

On the 24th of June 2014 the applicants filed an amended Notice of Motion. In the amended Notice of Motion the applicants only seek to compel the Third Respondent (The President of the Republic of Namibia) to recognize and gazette the first applicant as the Chief of the Hoveka Royal House and to recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of Section 6 of the Traditional Authorities Act, 2000.

Held, the application which was attached to the Applicants’ Notice of Motion and the supporting affidavit (as Annexure “TH 7”) is that of the late Sylvanus Kaveriua Hoveka which was submitted to the Minister on 12 October 2005.

Held further that Sylvanus Kaveriua Hoveka passed on, on 16 November 2011 and that he is not a party to this proceedings and that s 5 of the Traditional Authorities Act, 2000 specifically provides that if a traditional community intends to designate a chief or head of that traditional community the Chief's Council or the Traditional Council of that community, or if no Chief's Council or Traditional Council for that community exists, the members of that community who are authorised thereto by the customary law of that community, must apply on the prescribed form to the Minister for approval to make such designation.

Held, furthermore that there is no application that has been placed before this court in respect of Turimuro Retoveni Hoveka and it follows that if there is no application there is nothing for the Minister to consider. If there is no application which the Minister can consider there is also no issue which the Minister can refer to the President as contemplated in s 5(3) of the Act and to that extent this court cannot compel the President to recognize and gazette the first applicant as the Chief of the Hoveka Royal House and to recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of s 6 of the Act.

ORDER

1. That the application is hereby dismissed.

2. That the applicants, the one paying the other to be absolved, must pay the first to fourth respondents’ costs. That the costs of the fourth respondent to include the costs of one instructing and one instructed counsel.

JUDGMENT

UEITELE, J

[1] This matter concerns the recognition of a person as a Chief, under the Traditional Authorities Act, 20001, of the Hoveka Traditional Authority in respect of the ‘Epukiro Traditional Community’. The first applicant in this matter is a certain Turimuro Hoveka a member of the Hoveka Royal House and who describes himself as the ‘Chief’ of the Hoveka Royal House. The second applicant is, the Hoveka Royal House.

[2] The background of this application is briefly as follows. Section 2 of the Traditional Authorities Act, 20002 (I will in this judgment simply refer to it as “the Act”) makes provision for every traditional community to establish a Traditional Authority for that community. The traditional authority consists of a chief or head of the traditional community, senior traditional councilors and traditional councilors. The Chief or head of the traditional community must be designated or recognized in accordance with the Act,

1 Act No 25 of 2000.

2 Act No 25 of 2000. and the senior traditional councilors or traditional councilors must be appointed or elected in accordance with the Act.

[3] The existence of the ‘Epukiro Traditional Authority’ is disputed by the Fourth Respondent. Despite that dispute, I will very briefly set out the events (as I discern them from the applicants’ affidavit) that led to the application which is before me now. During the year 1920 a person, whom the applicants refer to as Chief Nicanor Hoveka, and his followers settled in the area known as Epukiro. ‘Chief’ Nicanor Hoveka died during the year 1951, and was allegedly succeeded by a certain Stephanus Hoveka who resigned during the year 1958 as ‘Chief’ of the Hoveka Royal House. Stephanus Hoveka was in turn succeeded by Gerson Hoveka, who died during 1997.

[4] After the death of Gerson Hoveka in 1997 the Hoveka Royal House designated a certain Sylvanus Kaveriua Hoveka as the Chief of the Hoveka Royal House. It is appropriate for me to pause here and mention that, by the time the Hoveka Royal House had designated Sylvanus Kaveriua Hoveka as the Chief of the Hoveka Royal House, the Traditional Authorities Act, 1995 (Act No. 17 of 1995 ) was already enacted. The objects of that Act was to provide for the establishment of traditional authorities and the designation, election, appointment and recognition of traditional leaders; to define the powers, duties and functions of traditional authorities and traditional leaders; and to provide for matters incidental thereto. It thus follows that any person who had to be recognized as a Chief of any Traditional Community in Namibia had to be so recognized in terms of the Traditional Authorities Act, 1995. The traditional Authorities Act, 1995 was repealed by the Traditional Authorities Act, 2000 (Act 25 of 2000) on 17 May 2001.

[5] On 12 October 2005 a person by the name of S Makono applied, in terms of the Traditional Authorities Act, 2000 for the approval, by the Minister responsible of Regional & Local Government, Housing & Rural Development (I will in this judgment simply refer to him as the Minister) to designate Sylvanus Kaveriua Hoveka, as Chief of the Hoveka Royal House in respect of the Epukiro Traditional Community. On 22 May 2006 the Minister replied as follows to the application for the approval to designate Sylvanus Kaveriua Hoveka, as Chief of the Hoveka Royal: ‘ According to our record, Epukiro which is referred to in your application as your communal area, falls under the jurisdiction of Mbanderu Royal House, a recognized Traditional Authority. Application over a communal area that falls under the jurisdiction of a recognized traditional authority contravenes the provision of Section 5(3) of the Traditional Authorities Act, Act 25 of 2000.

In the light of the above mentioned information the Ministry is not in the position of considering your application.’

[6] The Hoveka Royal house did not accept the decision of the Minister and between May 2006 and September 2013 correspondences were exchanged between the Hoveka Royal House, their legal representative and the Minister. The exchange of the correspondences resulted in the Minister referring the application in terms of the Act to the Council of Traditional Leaders for it to advice and make recommendations to the President as regards the applicants’ application (from the documentation before me it appears that the application which was referred to the Council of Traditional Leaders is the application for the recognition of the Hoveka Royal House as a Traditional Authority and not the application to recognize Sylvanus Kaveriua Hoveka, as the Chief of the Hoveka Royal House). During November 2011 the Hoveka Royal House was invited to a meeting of the Council of Traditional Leaders for the Hoveka Royal House to motivate and explain its application. It was after attending the meeting of the Council of Traditional leaders in Ongwediva on 16 November 2011 that Sylvanus Kaveriua Hoveka died.

[7] On 31 December 2011 the members of the Hoveka Royal House held a meeting at Omauezonjanda where the members of that Royal House resolved that Turimuro Retoveni Hoveka be designated as Chief of the Hoveka Royal House. Following that resolution a certain Mr. Matheus K Tjituka on, 08 February 2012, addressed a letter to the Permanent Secretary: Ministry of Regional & Local Government, Housing & Rural Development (I will in this judgment simply refer to the officer holding this position as the Permanent Secretary). In that letter Mr. Tjituka informed the Permanent Secretary about the meeting that took place on 31 December 2011 and that the meeting unanimously appointed Turimuro Retoveni Hoveka to succeed the late Sylvanus Hoveka as Chief of the Hoveka Royal House. In the letter Mr. Tjituka further states as follows ‘Attached please find the completed application form for approval to designate a chief of a Traditional Community.’ I pause here to record that the letter of Mr. Tjituka does not state whose application form is ‘attached’ to his letter. On the documents before me it is also not clear as to whether an application form was in fact attached to the letter and whose application form was attached to the letter. The Permanent Secretary did not reply to the letter of Mr. Tjituka dated 08 February 2012, as a result the first applicant (Turimuro Retoveni Hoveka), on 12 June 2012, addressed a further letter to the Permanent Secretary enquiring about the status of ‘their application for recognition based on the submission/presentation to the Council of traditional Leaders on 16 November 2011 in Ongwediva.’

[8] The Permanent Secretary replied to the letter of 12 June 2012 on 20 June 2012. The Permanent Secretary in her letter (of 20 June 2012) amongst others states as follows:

‘…the Ministry is quite aware of the application for recognition presented by the Hoveka Royal House under the leadership of the late Sylvanus K Hoveka to the Council of Traditional Leaders and the discretion in this matter is no longer within the mandate of this Ministry or the council of Traditional leaders as this matter was referred to the office of the President for final decision.’

[9] On 01 November 2012 the first applicant (Turimuro Retoveni Hoveka) addressed a letter to the third respondent (the President of the Republic of Namibia). In that letter the first applicant amongst others makes the following statement:

‘ It is now four years (2008) since you referred our application for recognition to the Council of Traditional Leaders for advice … Unfortunately we lost our chief, Sylvanus Hoveka, on the same day 17 November 2011 after presenting our case to the Council. He passed on in Oshikuku Hospital after a car he was travelling in to his accommodation overturned. On 31 December 2011 the Hoveka Royal House convened a meeting with the whole Traditional Community and unanimously appointed me, Turimuro Hoveka as their next Chief. The information on the succession was forwarded to the MRLH& RD to ensure continuity of the application.’

[10] Between November 2012 and April 2013 the applicants and their legal representative addressed further correspondences to the Minister and the President and when they did not obtain any favourable reply they launched these proceedings on 11 October 2013 claiming the following relief:

‘1 That the above Honourable court grants a mandamus to compel the First Respondent to recognize and gazette the first applicant as the Chief of the Hoveka Royal House.

2. That the First Respondent recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of Section 6 of the Traditional Authorities Act 25 of 2000.

3 Costs of suit

4 Further and/or alternative relief.’

[11] On the 24th of June 2014 the applicants filed an amended Notice of Motion. In the amended Notice of Motion the applicants only seek to compel the Third Respondent to recognize and gazette the first applicant as the Chief of the Hoveka Royal House and to recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of Section 6 of the Traditional Authorities Act, 2000. I will proceed to examine the provisions of the Traditional Authorities Act, 2000 which are relevant to the applicants’ application. I am of the view that the provisions which are relevant to this matter are sections 2, 4 and 5 of the Traditional Authorities Act, 2000.

[12] Section 2 of the Act in material terms provides as follows:

‘2 Establishment of traditional authorities (1) Subject to this Act, every traditional community may establish for such community a traditional authority consisting of-

(a) the chief or head of that traditional community, designated and recognized in accordance with this Act; and

(b) senior traditional councillors and traditional councillors appointed or elected in accordance with this Act.

(2) A traditional authority shall in the exercise of its powers and the execution of its duties and functions have jurisdiction over the members of the traditional community in respect of which it has been established.’

[13] The designation of a chief or head of a traditional community is not exclusively a customary law issue. As I have stated earlier in this judgment the process of designating a traditional leader is also regulated by the Act. The word 'chief' is defined in s 1 of the Act as meaning 'the supreme traditional leader of a traditional community designated in accordance with s 4(1)(a) and recognised as such under s 6' of the Act. The following definition of 'head' is given in the same section: ''head'' in relation to a traditional community, means the supreme traditional leader of that traditional community designated in accordance with s 4(1)(a) or (b), as the case may be, and recognised as such under s 6. 'Designation' is defined as follows:

'designation' in relation to the institution of a chief or head of a traditional community, includes the election or hereditary succession to the office of a chief or head of a traditional community, and any other method of instituting a chief or head of a traditional community recognised under customary law.'

[14] Sections 4(1) and (2) of the Act provide that:

'(1) Subject to ss 5 and 6, members of a traditional community who are authorised thereto by the customary law of that community, may designate in accordance with that law — (a) one person from the royal family of that traditional community, who shall be instituted as the chief or head, as the case may be, of that traditional community; or

(b) if such community has no royal family, any member of that traditional community, who shall be instituted as head of that traditional community.

(2) The qualifications for designation and the tenure of, removal from and succession to the office of chief or head of a traditional community shall be regulated by the customary law of the traditional community in respect of which such chief or head of a traditional community is designated.' (Italicized and underlined for emphasis.)

[15] Section 5 deals with the procedure for the notification of the designation of a chief or head of a traditional authority. It amongst others reads as follows:

‘5 Prior notification of designation of chief or head of traditional community

(1) If a traditional community intends to designate a chief or head of a traditional community in terms of this Act-

(a) the Chief's Council or the Traditional Council of that community, as the case may be; or

(b) if no Chief's Council or Traditional Council for that community exists, the members of that community who are authorized thereto by the customary law of that community, shall apply on the prescribed form to the Minister for approval to make such designation, and the application shall state the following particulars:

(i) The name of the traditional community in question; (ii) the communal area inhabited by that community; (iii) the estimated number of members comprising such community; (iv) the reasons for the proposed designation; (v) the name, office and traditional title, if any, of the candidate to be designated as chief or head of the traditional community; (vi) the customary law applicable in that community in respect of such designation; and (vii) such other information as may be prescribed or the Minister may require.

[16] Having set out the provisions which are relevant to this matter, I will now proceed to consider whether the applicants’ applications comply with those provisions. Ms. Bassingthwaighte who appeared for the fourth respondent submitted that the applicants’ applications are stillborn for the simple reason that the application which served before the Minister is that of Sylvanus Kaveriua Hoveka and that there was also no application for the recognition of the Hoveka Royal House as a traditional authority before the Minister.

[17] I agree with the submissions by Ms. Bassingthwaighte. The application which was attached to the Applicants’ Notice of Motion and the supporting affidavit (as Annexure “TH 7”) is that of the late Sylvanus Kaveriua Hoveka which was submitted to the Minister on 12 October 2005. It is common cause that Sylvanus Kaveriua Hoveka passed on, on 16 November 2011 and that he is not a party to this proceedings. As I have indicated above s 5 of the Act deals with the procedure for the notification of the designation of a chief or head of a traditional authority. It specifically provides that if a traditional community intends to designate a chief or head of that traditional community the Chief's Council or the Traditional Council of that community, or if no Chief's Council or Traditional Council for that community exists, the members of that community who are authorised thereto by the customary law of that community, must apply on the prescribed form to the Minister for approval to make such designation. The application must amongst other things state the name, office and traditional title, if any, of the candidate to be designated as chief or head of the traditional community.

[18] There is no application that has been placed before me in respect of Turimuro Retoveni Hoveka or for the recognition of the Hoveka Traditional Authority. In terms of s 5 of the Act it is mandatory that, if a traditional community intends to designate a chief or head of that traditional community the Chief's Council or the Traditional Council of that community, or if no Chief's Council or Traditional Council for that community exists, the members of that community who are authorized thereto by the customary law of that community, must apply on the prescribed form to the Minister for approval to make such designation. It follows that if there is no application there is nothing for the Minister to consider. If there is no application which the Minister can consider, than there is also no issue which the Minister can refer to the President as contemplated in s 5(3) of the Act and to that extent this court cannot compel the President to recognize and gazette the first applicant as the Chief of the Hoveka Royal House and to recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of s 6 of the Act.

[19] In the result, I make the following order:

1. That the application is hereby dismissed.

2. That the applicants’, the one paying the other to be absolved, must pay the first to– fourth respondents’ costs. That the costs of the fourth respondent to include the costs of one instructing and one instructed counsel.

------SFI Ueitele Judge APPLICANTS: Mr PST Elago Of Tjombe Elago Inc

FIRST, SECOND & THIRD RESPONDENTS: Mr J Ncube Of Government Attorney

FOURTH RESPONDENT: Ms N Bassingthwaighte Instructed by Angula Coleman