Open letter to the Judicial Service Commission

 

The chieftaincy dispute among the Ovambanderu community bears reference.

The major dispute relates to the succession for paramount chieftainship of the community that initially started between late Keharanjo II Nguvauva and Kilus Nguvauva and now between Aletha Nguvauva and Kilus Nguvauva.
Disputants petitioned the Minister of Regional and Local Government in terms of section 12 of the Traditional Authorities Act (Act 25 of 2000) for settlement. The investigation committee drawn from seven of our nationalities was established in terms of the Act and came up with the findings and recommendations that were submitted to the line Minister on 19th August 2009.

It recommended that late Keharanjo II Nguvauva is the rightful successor to the throne of the Mbanderu paramount chieftainship, and the recommendation was approved by the Minister in terms of section 12(4) of the Act on 9 December 2009.

In a letter to the Minister dated 23rd February 2010, Kilus Nguvauva and his group rejected the recommendation and resolution of the investigation committee and the minister respectively, apparently because the investigation committee disregarded important evidence to the prejudice of Kilus Nguvauva.

The Minister changed his mind and on the 19th May 2010 wrote letters to Kilus Nguvauva and late Keharanjo II Nguvauva to inform them that he has decided that an election should be held to determine the successor to the throne.

The late Keharanjo II Nguvauva was aggrieved by the Minister’s decision to call an election and launched a review application for the decision to be reviewed and set aside. Kilus Nguvauva in terms of his paragraph 5 of their counter-application supported an order of which the Minister’s decision to call an election is reviewed and set aside.
Miscarriage of justice

It is trite law that when someone is aggrieved by a decision of an administrative body and/or administrative official, such a decision is taken on judicial review to be reviewed and set aside. Kilus Nguvauva did not accept the recommendation of the investigation committee neither did he accept both the Minister’s approval of late Keharanjo II and election’s decision, yet no application was launched to the court for invalidation.

It is therefore respectfully submitted that one ground of miscarriage of justice is that the presiding judge ventilated on an application that was not proper before the court because it was not submitted in terms of former Rule 53 of the Rules of High Court (currently Rule 76 of Rules of the High Court of Namibia). The application was procedurally defective and was in the first place not supposed to be heard because it was not a review application.

The second ground of miscarriage of justice is the presiding judge’s ventilation of the election issue which in terms of paragraphs 5, 65.4 and 66.2 of Kilus Nguvauva’s counter-application was rejected by himself The hearing that was conducted on the 18 July 2014 shows that the issue that pre-occupied the deliberation of the Honourable Court was the ministerial decision on election, an issue that was not brought as defence by Kilus Nguvauva in the counter-application.

The miscarriage of justice is furthermore evidenced by the position taken by the honourable court to grant mandamus in favour of Kilus Nguvauva and compel the Minister to recognise him on the basis of being the only candidate in an election since late Keharanjo II passed on, while it is patently clear that he did not plead in favour of an election and it is a duty of a party to allege in his pleadings the material facts upon which he relies.

The court has failed to take into account the evidence on record presented by the Minister that there are two candidates including Aletha Nguvauva, and similarly the Minister succumbed to the pressure of the court only to recognise one candidate while it has two candidates.

The third ground of miscarriage of justice is when the presiding judge granted orders in favour of Kilus Nguvauva and ordered that his designation as chief has been done in accordance with the Mbanderu customary law and declared that he has been duly proposed to be designated as chief, when in fact no such arguments were advanced in the court on 18 July 2014 during the hearing if due regard is given to the transcript.

This constituted the rationale why the government attorney initially gave notice of appeal, which on the instruction of its client had to be aborted and paragraph 4 thereof was instructive.

The fourth ground that paved the way to the miscarriage of justice is demonstrated by the presiding judge’s egregious and hostile manner in which he treated Keharanjo II and Aletha’s legal representative. As an illustration, the presiding judge declined to accept evidence from the Bar on where Aletha Nguvauva’s association with Nguvauva clan on the court record can be found (which was on page 92 of the records submitted in terms of Rule 53 (2)) apparently because it was not annexed to the founding affidavit, yet the same presiding judge agreed to the changes to be made on the affidavit at the Bar by adding an adjective “proposed” to designation – an exercise that corrected a defective affidavit that was supposed to be dismissed.

The miscarriage of justice is buttressed by the fact that in light of the abundance of evidence contained in the Investigation Committee report that Kilus Nguvauva does not customarily qualify to the chieftainship, and has not taken such position on judicial review and has also abandoned his bid to challenge the Mbanderu customary law on the basis of the Namibian Constitution, yet the presiding judge saw it fit to grant him such orders that are in conflict with applicable customary laws that have not been invalidated by a court of law.

The above illustrations, it is respectfully submitted, are a reflection of a concrete, vindictive and practical demonstration of biasness or gross incompetence on the part of the presiding judge that paved the way for the miscarriage of justice.

The Ovambanderu had involved in a honourable fight but unfortunately were let down by the biasness and gross incompetence of the legal system as well as executive activism as illustrated by the withdrawal of notice of appeal with the end result of imposing a leader, who is not customary law compliant, on the vast majority of the Ovambanderu.

Rihupisa Kandando, PhD

Read full story on New Era Newspaper Namibia