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REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI
JUDGMENT
Case no: A 07/2014
In the matter between:
FIINA SHIWOMWENYO HEITAAPPLICANT
and
MAIYA NUUYOMA 1ST RESPONDENT
CHIEF REGIONAL OFFICER OF THE OMUSATI
REGIONAL COUNCIL2ND RESPONDENT
THE ASSISTANT MAGISTRATE FOR THE
DISTRICT OF OUTAPI3RD RESPONDENT
Neutral citation: Heita v Nuuyoma(A 07-2014) [2015] NAHCNLD 35(28 July 2015)
Coram:CHEDA J
Heard:16 July 2015
Delivered:28 July 2015
Flynote: The issue of land in Namibia is largely governed by the customs, norms and cultural practices. These should be acknowledged and respected in compliance with the constitution. Children whose fathers die intestate are entitled to inherit from their estate in equal shares. Application is dismissed with costs.
Summary:Applicant is one of the surviving children of the late Henock Haufiku who died intestate. Applicant sought an order depriving other children from inheriting the estate. At the time of his death he was the owner of a certain piece of land under second respondent. Second respondent has now repossessed the said land against compensation to the applicant as heir to the estate. First respondent opposed such a decision and argued that all the children should receive compensation in equal shares as they are heirs of the late Henock Haufiku. At the hearing, applicant made a concession to the effect that all the surviving children should benefit. Application is dismissed with costs.
ORDER
- The application is dismissed.
- Second respondent be and is hereby ordered to pay compensation to all the surviving children of the late Henock Haufiku in equal shares.
- Each party to pay its own costs.
JUDGMENT
CHEDA J:
[1]On the 14 April 2014 applicant lodged an application on motion and claimed the following relief:
- Interdicting and restraining the Second Respondent from paying out the remainder of the compensation amount to any person other than the Applicant as the rightful heir of the late Henock Haufiku;
- Directing and declaring the appointment of the First Respondent, by the Third Respondent in terms of Section 2 (a) of the Government Notice 70 of 1954, under Letter of Executorship number 7/1/2-113/2013 and dated the 17th of June 2013 to be null and void ab initio;
- Directing and declaring the Applicant to be the rightful heir in and to the estate of the late Henock Haufiku and as such entitled to receive payment of the remainder of the compensation amount from the Second Respondent;
- Costs of suit; and
- Further and/or alternative relief.
[2]This application was opposed by respondents. However on the day of the hearing, applicant through Ms. Mugaviri abandoned prayers 2 and 3 and sought to pursue prayer 1 only. She had earlier on applied for condonation for the non-compliance of the Rules of Court. The said application was not opposed and therefore nothing turns on this point.
[3]The historical background of this matter is outlined hereinunder. Applicant is the daughter of one Henock Haufiku [hereinafter referred to as “HH”] who died in 1980. The late HH was the owner of a piece of land which land is presently occupied by applicant on the basis that she is the rightful owner asagreed by members of her family that she should inherit it.
[4]Applicant has been in occupation since 1998. In 2008 the said land was expropriated by the Omusati Regional Council [hereinafter referred to as “the council”] against payment of compensation of the sum of N$83709-73, which was paid to applicant. It has,however now emerged that there is a balance due to be paid out to the applicant. It is this amount which is subject of this dispute.
[5] It is first respondent argument that the said amount is due to all the surviving heirs of the late HH’s. At the hearing she changed her mind and stated that the compensation may be paid to her siblings. This, in my view is a conciliatory approach, which for all intents and purposes is pragmatic.
[6]Namibia is a country which places great value and importance on its traditional authorities and flowing from that stand-point is the sacrosanctity of its traditions and customs which run through the fabric of its society. The courts can do no more than respect them. The customs and traditions of a community ought to be respected at all costs unless they are harmful to that society.
[7]The land allocation by traditional authorities must in my view be respected in as for as they do not offend any other existing laws including, but, not limited to the constitution,see articles 66 of the constitution which reads thus:
“1. Both the customary law and the common law of Namibia in force on the date of Independence shall remain valid to the extent to which such customary or common law does not conflict with this Constitution or any other statutory law.
2. Subject to the terms of this Constitution, any part of such common law or customary law may be repealed or modified by Act of Parliament, and the application thereof may be confined to particular parts of Namibia or to particular periods.”
[8]It would seem to me that applicant is at least prepared to compromise by agreeing to a distribution of the pending compensation from the council. This, to me is a noble idea as it is in line with the laws of equity. It should be borne in mind that the issue of land in an African context in general and in Namibia in particular is largely governed by history, norms, customs and culture. The issue of the land is widely discussed in,Land, Power and Custom, Aninka Claasens & Ben Cousins, LRC Cape Town 2008 p 99 where the learned authors stated:
“Those living and drawing their livelihoods from rural areas, continue to be determined by values and norms indigenous to their culture and history, and that despite the extensive reach of state law, these remain resilient and robust. There is further evidence of areas in which state law has become a prisoner of indigenous values and norms in the sense that the latter continue to provide the social context in which the former operates. Consequently, state law is often ignored where it is not compatible with the social and cultural milieu in which it is applied.
The persistence of indigenous values and norms is particularly evident in relation to the manner in which land and associated resources continue to be held, used, controlled and managed. Despite the importation of a complex system of property law in many African countries, land relations continue to be determined, either directly or indirectly, by those values and norms. An enquiryinto the nature of land rights in indigenous law would therefore shed useful light, not only on the nature of that law, but also on the extent to which it continues to provide an important framework for social development.” (my emphasis)
The importance of land needs no emphasis in light of the learned authors’ analysis. Such is the correct legal and socio-political position in this land.
[9]In light of an apparent climb-down by the applicant, I am of the view that it is only just and equitable that the compensation should be distributed in accordance with rules of equity. After all equity demands order, Justice,aequitas est quae.
[10]In addition thereto, the laws of inheritance require that surviving children of a father who dies intestate are entitled to inherit from his estate in equal shares. It is for the above reasoning that the following order is made:
Order
- The application is dismissed.
- Second respondent be and is hereby ordered to pay compensation to all the surviving children of the late Henock Haufiku in equal shares.
- Each party to pay its own costs.
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M Cheda
Judge
APPEARANCES
APPLICANT: G. Mugaviri
Of Mugaviri Attorneys, OSHAKATI
1ST RESPONDENT: C. Tjihero
Of Dr. Weder, Kauta & Hoveka Inc., OSHAKATI