2
NOT REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
CASE NO. A 201/2016
In the matter between:
THE COUNCIL OF ITIRELENG VILLAGE COMMUNITY 1st APPLICANT
(Comprising the members listed per annexure AMB1)
AUGUSTINUS BEBENG MODISA 2nd APPLICANT
and
FELIX MADI 1ST RESPONDENT
BERNHARD LANGMAN 2ND RESPONDENT
GENOVEFA MOKALENG 3RD RESPONDENT
EUPHROSINE MBUENDE 4TH RESPONDENT
VICTUS EDUARD 5TH RESPONDENT
REINHARD MORWE 6TH RESPONDENT
CYNTHIA MADI 7TH RESPONDENT
HEDWIG TIBINYANE 8TH RESPONDENT
MICHAEL KAPENG 9TH RESPONDENT
LAZARUS SEBETWANE 10TH RESPONDENT
JASPER MADI 11TH RESPONDENT
CYPRIANUS POGISHO 12TH RESPONDENT
MARIA THEKWANE 13TH RESPONDENT
THEODOR TSHABANG MAKGONE 14TH RESPONDENT
PIO MOSALA 15TH RESPONDENT
ANNA MOKALENG 16TH RESPONDENT
BERNARD MOKALENG 17TH RESPONDENT
AUGUSTINUS MOKALENG 18TH RESPONDENT
OSWALD TIBINYANE 19TH RESPONDENT
ARNOLD MORWE 20TH RESPONDENT
ALEXIUS UDIGENG 21ST RESPONDENT
BERLINDIS UDIGENG 22ND RESPONDENT
RILEU KENE 23RD RESPONDENT
JOSEPH ARNAT 24TH RESPONDENT
INGRID MOKWENA 25TH RESPONDENT
APPOLINIA TIBINYANE 26TH RESPONDENT
HANS KEDIAMOGETSE MAKGONE 27TH RESPONDENT
HUBERTHA BONTLEENG TIBINYANE 28TH RESPONDENT
Neutral citation: The Council of Itireleng Village Community v Madi (A 201-2015) [2016] NAHCMD 114 (19 April 2016)
CORAM: / ANGULA, DJPHeard: / 8 April 2016
Delivered: 19 April 2016
Flynote: Prescription-claim for a declaratory order or interdict susceptible to prescription. Locus standi - legal proceedings on behalf of a voluntary association with legal personality must be instituted in the name of the association and not in the name of the council of such association.
Summary: The parties to these proceedings are members of the Tswana traditional community residing on a piece of land situated at Epukiro. Epukiro is also referred to as Itireleng in Setswana. Many years ago the Roman Catholic Church bought a farm as it wanted to take care of the community living in the vicinity of the farm by providing the community with amenities and facilities such as water etc. Later on the Church and the community entered into a written lease agreement in terms of which the community was allowed to formally reside on the farm. Subsequent thereto the lease was converted into a notarial deed of servitude of use and habitation. During 1983 a constitution was drafted with the aim to organize and regulate the administration and affairs of the community. When the Traditional Authorities Act, 2000 came into operation the community was recognized a traditional authority with the leaders appointed in terms of the Traditional Authorities Act. It would appear that association established in terms of the constitution and the traditional authority established in terms of the Traditional Authorities Act operated in parallel.
During 2005 allegation of theft were made against the members of the council as a result of which the members were suspended pending the finalization of investigation. An interim committee was appointed pending the outcome of the investigation. After the investigation was completed in 2008, the suspended members of the council were reinstated however the member of the interim committee did not vacate their positions. There is conflicting versions by the parties why the interim committee members did not vacate their positions.
The applicants allege that a sum of N$159510.90 was unlawfully withdrawn from the association’s bank account on 25 November 2011 and paid into the bank accounts of some of the respondents.
The constitution of the association provides that a new council including the headman who serves as chairperson of the council must be elected after every three years. A new council was elected on 4 July 2010 and after the expiry of the three years period a further new council was elected on 11 August 2013.
The applicants are seeking for number of declarators and interdicts all inter-related, the cumulative effect whereof is that the applicants are still the duly elected members of the council; that the respondents be interdicted not purport to act either as elected members and/or as chairperson, and/or headman. They are further inter alia asking for access to the hall belonging to the community and for payment of association’s money in the sum of N$159510.90 allegedly misappropriated by the respondents.
The respondents have raised two points in limen firstly that the applicants claims have prescribed in that the applicants’ rights to claim whether for the money or declarators and interdicts arose three years before the present proceedings were served on the respondents; and secondly that the applicants lack locus standi.
Held that, generally, a debt arises if the applicant/plaintiff wants to enforce a right to take legal steps in order to undo a certain factual and legal reality created by the actions of the defendant which created that legal reality to the prejudice of the potential applicant/plaintiff.
Held that the right to claim for a declarator or interdict is a personal right and fall in the wide meaning of the word ‘debts’ as envisaged by the Prescription Act and right that such is susceptible to extinctive prescription.
Held that in this matter the debt arose when the respondents became aware or when they are reasonably expected to have become aware of their right to apply for the declarators or interdicts to undo the factual and legal reality created by the actions of the respondents and that such right is susceptible to prescription.
Held that the applicants’ right to claim for the payment of the sum of N$159510.90 arose on 25 November 2011 when the said sum was allegedly misappropriated by some of the respondents. The proceedings to claim payment of the said amount was served on 20 February 2015 upon the respondents which is more than three years after the claim arose and the claim has therefore prescribed;
Held that the applicants’ right to claim for the declarator sought in prayer 1 arose at the latest 4 July 2010 when the first respondent was elected as chairperson of the association which is more than three years before the proceedings in this matter were served on the respondents on 20 February 2015 and the claim has therefore prescribed;
Held that the applicants’ right to claim for the declarator sought in prayer 2 arose at the latest on 4 July 2010 when the community elected new council, which is more than three years when the proceedings in this matter were served on the respondents on 20 February 2015 the right to claim has therefore prescribed.
Held that the applicants’ rights to claim for interdicts sought in prayers 3, 4 and 5 arose at the latest on 4 July 2010 when the elections of a new council and a chairperson took place which is more than three years when the proceedings in this matter were served on the respondents on 20 February 2015, the right to claim has therefore prescribed.
Held that the applicants’ right to claim for a declarator sought in prayer 6 arose on 31 October 2009 when the second applicant received a letter dismissing him as the chairperson of the council, which is more than three years when the proceedings in this matter were served on the respondents
Held that the claims in prayers7, 8 and 10 have not prescribed.
Held that the council does not have the legal standing or right to institute legal proceedings in its own name. The council represents the association and as an agent it cannot institute legal proceedings in its own name. The legal proceedings should have been instituted in the name of the association.
Held that the purported resolution of the council passed on 20 November 2011 comprising of the individuals listed in annexure ABM1 upon which reliance is placed by the applicants for authority to bring this application is not a valid resolution for the reason that such individuals were no longer elected members of the council at the time the purported resolution was adopted; that an elected council was in office at the time the alleged resolution was adopted. Accordingly the applicants lack the locus standi to bring this application for want of validity of the said resolution.
Held that the second applicant can only act as headman appointed in terms of the Traditional Authorities Act. The Act does not give the power to such a headman to bring legal proceedings in his own name, acting as a councillor. Furthermore that a traditional authority does not have the power over the affairs of the association. It follows therefore that even in that alleged capacity the second applicant lacks locus standi to bring this application.
Held that the second applicant has failed to make out a case that he has the locus standi to bring the application in his capacity as member of the association.
ORDER
1. The two points in limine raised by the respondents are upheld accordingly the matter is struck from the roll.
2. The individuals listed in annexure ABM 1 to the founding affidavit and the second applicant are ordered to pay the respondents costs jointly and severally the one paying the other to be absolved, such costs to include the costs of one instructing counsel and one instructed counsel.
JUDGMENT
ANGULA, DJP:
Background
[1] This is an application by the applicants seeking for an order in the following terms:
“1. An order declaring that only a senior or traditional councillor appointed or elected as such in terms of the provisions of section 10 of the Traditional Authorities Act, Act No 25 of 2000 may act as headman on the community of Itireleng and that person, shall by virtue on that incumbency be the Chairperson on the 1st applicant;
2. An order declaring that the persons listed in annexure ABM 1 are currently the duly elected members of the Council of Itireleng Village Community (the 1st applicant);
3. An order interdicting and restraining the respondents or any one of them from acting or purporting to act as a headman of the Itireleng Village Community in contravention of the provisions of section 10 of the Traditional Authorities Act, Act No 25 of 2000;
4. An order interdicting and restraining the respondents or any one of them from acting or purporting to act as the Chairperson of the Council of the Itireleng Village Community(1st applicant) in contravention of the provisions of the constitution of the town community of Itireleng;
5. An order interdicting and restraining the respondents or any one of them from acting or purporting to act as a duly elected member of the Council of Itireleng Village Community (1st applicant) in contravention of the provisions of the constitution of the town community of Itireleng;
6. An order declaring that the decision taken by the 14th respondent on 31st of October 2009 was null and void;
7. Ordering the Respondents to forthwith restore ante omnia the 2nd applicant’s possession and control of the keys of the community hall at Epukiro;
8. Ordering the Respondents to forthwith restore ante omnia the 2nd applicant’s peaceful, undisturbed, unhindered access, occupation and control of the community hall at Epukiro;
9. Ordering 1st, 2nd, 3rd, 6th, 11th, 12th, 18th, and the 26th respondents to reimburse the 1st applicant within 30 days from the date of this court’s order an amount of N$159 510,. 90 that they jointly and or individually, misappropriated from the funds of the Itireleng Village Community;
10. Ordering the Respondents to re-imburse the 1st applicant within 30 days from date of this court’s order the full amount of money including interest if any that they jointly, collectively and or individually received from the sale of 45 cattle that they sold or was sold on their behalf or at their behests at an auction that took place on 27th November 2014 at Karoo Osche in Gobabis;
11. Granting the applicants such further and/or alternative relief as the Honourable Court may deem fit; and
12. Granting a cost order against any of the respondents that will oppose this application.”
[2] This is one of many applications between the parties concerning the on-going feud between the parties dating back to about 2005. As can be deduced from the varying reliefs quoted above, that the dispute between the parties involves many issues such as the question which body is or persons are the lawful leader(s) of the Itireleng Village Community (“the community”) residing at and around Epukiro area; the restoration of a community hall at Epukiro allegedly spoliated from the applicants by the respondents; and a claim for re-imbursement of a sum of money allegedly misappropriated by the respondents. By agreement between the parties, this court has been asked not to deal with the merits but to first decide on the two points in limine raised on behalf of the respondents namely whether some of the applicants’ claims or rights of action have or have not prescribed and whether the applicants have the locus standi to bring this application.
Point in limine on prescription
Arguments on behalf of the respondents
[3] Mr Barnard who appeared for the respondents submits that the applicants’ claims for the reliefs sought in prayers 1 to 6 and prayer 9 have prescribed; that each of these claims is by its nature susceptible to prescription in that each of these claims are either seeking for a declarator of rights, a claims for an interdict and a claim for a payment of an amount of money. In support of his argument counsel refers the court to the judgement in the matter of Ongopolo v Uris Safari Lodge[1] where Damaseb JP had an opportunity to consider and summarised the legal principles emanating from case law governing prescriptions prior to 1990, thus prior to Namibia’s independence as regards to the meaning of and proper scope of the term or meaning of the words “a debt” in the in section 10 (1) of the Prescription Act, (“the Act”). The learned judge concluded at paragraphs [39] and [40] as follows:
‘[39] The following principles can be distilled from an examination of the case law prior to 1990 as regards the meaning and proper scope of 'a debt' arising under s 10 of the Prescription Act —
(a) the word 'debt' has a wide and general meaning and includes an obligation to do something or to refrain from doing something;
(b) at the core of a 'debt' is a right and a corresponding obligation;
(c) the concept of 'debt' has a proprietary meaning;