1
]REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: I 309/2013
In the matter between:
RUTH VAANDA KANGUATJIVI PLAINTIFF
and
EDWIN IHEKA KANGUATJIVIDEFENDANT
Neutral citation:Kanguatjivi v Kanguatjivi(I 309/2013) [2015]NAHCMD 106 (30 April 2015)
Coram:UNENGU J
Heard:02 – 04 February 2015 and 18 March 2015
Delivered:30 April 2015
Flynote:Civil Practice – Eviction Order – Plaintiff seeking an Order from Court to evict the defendant from her farming and residential area at Otjijere Village in Epukiro. Defendant refusing to vacate the area claiming that he is entitled to occupy the area per the Ovaherero Customs – After trial court rejected the defendant’s version and granted the plaintiff the order prayed for in the notice of motion.
Summary:Civil Practice, plaintiff seeking an order to evict the defendant from her farming and residential area at Otjijere Village in Epukiro Traditional area allocated to her by the Ministry of Lands and Resettlement – Plaintiff applied for and has been awarded customary land rights of the property in terms of the Communal Land Reforms Act 5 of 2002 – However, the defendant, the son of the late husband of the plaintiff, is refusing to vacate the property, claiming that he was entitled to occupy the area per the Ovaherero customs – The Court, however, after the trial, rejected his version and granted the plaintiff the order prayed for in the notice of motion.
ORDER
(i)The defendant is evicted from the plaintiff’s farming and residential unit at Otjijere Village, Epukiro Traditional Area, Republic of Namibia.
(ii)Costs of suit.
JUDGMENT
UNENGU AJ:
[1]The plaintiff, Ms Ruth Vaanda Kanguatjivi has instituted this action against the defendant claiming an order evicting the defendant from her farming and residential unit at Otjijere Village in Epukiro Traditional Area, costs of the suit and further and/or alternative relief.
[2]In the particulars of claim, the plaintiff alleges, amongst others, that she is the registered owner of the farming and residential unit at Otjijere Village in the Epukiro Traditional Area, registered into her name by the Ministry of Lands and Resettlement, that the defendant was currently unlawfully occupying the said farming and residential area without her consent, therefore, liable to be evicted from the unit as he was depriving her of the peaceful enjoyment of her right of ownership and occupation.
[3]On 5 April 2013, the plaintiff applied for summary judgment but the application was removed from the roll as the defendant opposed the summary judgment and was granted leave to defend.
[4]The background history of the matter is that the plaintiff and the father of the defendant, who died on 10 November 2008 entered into a customary union in 1991 in accordance with the customary laws of the Ovaherero. On 1 April 1993, they married in the Protestant Unit Church (Oruano) of Namibia, Windhoek in accordance with the civil law. At the time when they so married, the husband, the late Ewald Tjoutuku Kanguatjivi, was still married to Mary Carolyne Kanguatjivi, his first wife whom he married in the United States of America on 29 May 1971.The plaintiff and the late husband lived at Otjijere Village since 1991 and continued to do so after the husband’s death until today. The husband died intestate and as such the defendant was nominated by the family to act as one of the executors of his estate but the village did not form part of the joint estate due to the fact it is communal land under the control of the Ovambanderu Traditional Authority.
[5]On 7 July 2010 the plaintiff approached the Ovambanderu Traditional Authority and applied for a customary land right in terms of s 20(a) of the Communal Land Reform Act[1], in respect of Post 6, Otjijere Village at Epukiro, the subject matter of this dispute. Her application was approved by the Traditional Authority and the Omaheke Communal Land Board, and, as such, a certificate of Registration of Customary Land Right No. OMCLB-CL00878 dated 7 October 2011 (Ex “E”) was issued to her by the Ministry of Lands and Resettlement.
[6]On 14 March 2014 the plaintiff applied for summary judgment against the defendant for an order evicting him from her farming and residential unit with costs. However, the application was removed from the roll and the defendant was granted leave to defend, again.
[7]On 2 February 2015 when the matter was called for trial, Mr Narib represented the plaintiff while Mr Schurz acted for the defendant.
[8]During the case management of the matter, the parties drafted a proposed pre-trial order dated 21 October 2013 and was signed by the legal practitioners for the plaintiff and the defendant on the same date. This proposed pre-trial order was made an Order of Court on 21 October 2013 which order was confirmed on 20 January 2014 when the matter was postponed for trial to 7 – 11 April 2014 on the civil floating roll.
[9]The terms of the proposed pre-trial order which was made an Order of Court, agreed upon by the parties for the resolution of the court during the trial, are:
(a)Whether the plaintiff has any right to occupy the property
(b)Whether the defendant has any right to occupy the property.
(c)Whether the plaintiff has been in occupation of the property for 19 years, and
(d)Whether the defendant occupied the property prior to death of the deceased and continued to so occupy the property.
[10]In addition to the aforesaid factual issues, they agreed, issues of law to be resolved during the trial as whether the certificate of Registration of Communal Land Rights issued to the plaintiff as a result of an administrative decision by the Ministry of Lands and Resettlement is valid and enforceable, and confers a right to occupy the property, and whether the defendant has a right to occupy the property.
[11]The parties also identified certain facts as facts not in dispute between them. These are facts listed in paragraphs 3 of the pre-trial order. That the property in question is situated at Otjijere Village in Epukiro Tradition area; that the property in question is situated within communal land as envisaged by the Communal Land Reform Act 5 of 2002; that a certificate was issued to the plaintiff by the Ministry of Lands and Resettlement in recognition of her as holder of a customary land right in terms of the Communal Land Reform Act 5 of 2002; that the decision by the Ministry of Lands and Resettlement has not been set aside; that the plaintiff was married to the deceased and that defendant is the son of the deceased.
[12]It is trite that pre-trial orders made by court in terms of Rule 26 of the High Court Rules are binding on the parties. It is also trite that in terms of Rule 26(10), issues and disputes not set out in the pre-trial order are not available to the parties without leave from the managing judge or court granted on good cause shown. That is important and for the benefit of litigants to know beforehand what issues are in dispute and what are not in dispute; to narrow or limiting the issues to be decided by the court before they appear. See Stuurman v Mutual Federal Insurance Company of Namibia Ltd[2] where the Supreme Court of Namibia expressed itself with regard agreements made by parties on how they want to conduct their matters:
‘[21]Parties engaged in litigation are bound by the agreements they enter into limiting or defining the scope of the issues to be decided by the tribunal before which they appear, to the extent that what they have agreed is clear or reasonably ascertainable. If any one of them want to resile from such agreement it would require the acquiescence of the other side, or the approval of the tribunal seized with the matter, on good cause shown. As was held by thy Supreme Court of South Africa in Filta-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA) ([1998] 1 All F SA 239) at 614B-D:
“To allow a party, without special circumstances, to resile from an agreement deliberately reached at a pre-trial conference would be to negate the object of Rule 37, which is to limit issues and to curtail the scope of the litigation. If a party elects to limit the ambit of his case, the election is usually binding.”[Footnote omitted].
In F & I Advisors (Edms) Bpk en ‘n Ander v Eerste Nasionale Bank van Suidelike Afrika Bpk 1999 (1) SA 515 (SCA) ([1998] 4 All SA 480) at 524F-H this principle was reiterated. The judgment is in Afrikaans and the headnote to the judgment will suffice (at 519D): H
‘. . . a party was bound by an agreement limiting issues is litigation. As was the case with any settlement, it obviated the underlying disputes, including those relating to the validity of a cause of action. Circumstances could exist where a Court would not hold a party to such an agreement, but in the instant case no reasons had been advanced why the appellants should be released from their agreement.’
[13]The same sentiments were expressed by Smuts J in Scania Finance SA vs Aggressive Transport[3] when dealing with Rule 37(12)(c) the forerunner of rule 26(10) of the new rules of the High Court which came into operation on 16 April 2014. In paragraphs 20 – 21 of the judgment, Smuts J said the following:
‘(20)Rule 37(14) reinforces the importance of confining issues at the pre-trial conference by attaching consequences to that process. It provides that:
Issues, evidence and objections not set in a managing judge’s pre-trial order are not available to the parties at the trial or hearing.
(21)The approach of the courts with regard to applications to amend are now subject to the rules relating to case management and to rule 37(14) in particulars. This is because judicial case management would ordinarily entail the parties reading agreement to confine issues and the compelling need to hold parties to such agreements as is reinforced by rule 37(14)’. (Emphasis added).
[14]Based on the above stated principles laid down in the Stuurman and Scania Finance SA cases and cases cited therein, the defendant cannot be allowed to rely on issues not contained in the pre-trial order he and the plaintiff had signed. Besides, the defendant did not seek leave from the managing judge or court granted on good cause shown for issues and disputes not set in the pre-trial order to be made available to him.
[15]Turning back to the issues of fact agreed upon by the parties to be resolved during the trial as already pointed out above, ie whether the plaintiff has a right to occupy the property – the answer to that issue is, yes the plaintiff has a right to occupy the property. That right has been granted to her by the Ovambanderu Traditional Authority and the Omaheke Communal Land Board, which, through the Ministry of Lands and Resettlement, issued to her a certificate (Ex “E”) of registration of customary land right in terms of s 25 of the Communal Land Reform Act, Regulation 5, which certificate is still valid.
[16]With regard the issue as whether the defendant has any right to occupy, the property, I am not persuaded by the defendant that he does have such right. The plaintiff did not give consent or permission for him to stay on the property. The defendant had also not produced any evidence to prove that he has a better title than that of the plaintiff or that he was a bona fide possessor of the property. Initially the defendant attacked the validity of the certificate issued to the plaintiff by the Omaheke Communal Land Board on the basis that the certificate did not comply with the requirements of regulation 5 and that the plaintiff pleaded ownership of the area in the pleadings.
[17]Based on ownership of the property, being pleaded by the plaintiff, the defendant argued that the requirements of the legal remedy of the rei vindicatio instituted by the plaintiff to reclaim her property from the defendant, have not been proved. It was submitted on behalf of the defendant that the plaintiff did not prove on a balance of probabilities that she was the owner of the property – which issue was not included in the disputed issues of fact or law agreed on by the parties in the pre-trial order. Mr Schurz counsel for the defendant was very much aware of this fact and aware that his client was bound to the terms of the pre-trial order, that he did not show any good cause for the defendant to resile from the terms of the pre-trial order. Counsel also bemoaned why issues agreed on in terms of the provisions of rule 26(10) should prevail over issues contained in the pleadings, forgetting that the terms of issues detailed in the pre-trial order are issues the parties self, without influence from third parties, decided and agreed to bind them.
[18]While there is proof that the plaintiff lived on the area with her husband until his death and continued to live there until to date on the strength of the customary right conferred on her by the certificate lawfully granted to her by the authority, there is no such proof from the defendant. There is also no evidence placed before court that he (defendant) occupied the property prior and after the death of his father. He used to go to the property to visit his father as he did to his maternal uncle who is staying at Eiseb Block in Epukiro. The visits he paid to his father did not, in my view, give him the right to occupy the property. The defendant, however told the court that his employees are staying on the plot. In any event, the defendant is basing his claim of occupation on the fact that he is the eldest son of his late father, therefore, and according to the customs and traditions of the Ovaherero, he should inherit the village in question – which issue not taken up or included in the pre-trial order, and as such, not available to him at the trial in view of the provisions of rule 26(10).
[19]The facts of this matter are also different from those in the matter of Meroro v Minister of Lands, Resettlement and Rehabilitation[4]. In the Meroro case above, a leasehold agreement of 99 years was entered into between the late Meroro and the Ministry of Lands, Resettlement and Rehabilitation at the time the late Meroro was resettled on the farm while in the present matter, the late Kanguatjivi was not the lessee of the village Otjijere. Both the leasehold and the customary land rights may be granted to any person in terms of the Communal Land Reform Act[5].
[20]Mr Narib, counsel for the plaintiff urged the court to accept the presumption of regularity contained in the maxim omnia praesumuntur rite esse acta donec probetur in contrarium, and make it applicable to this matter. Whether the maxim was applicable or not, will not make any difference as the defendant did not put into dispute the validity of the certificate issued to the plaintiff. I also take note of the quote from the matter of Ondekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at 242B-C, referred to by counsel. The legality of the certificate issued to the plaintiff by the Ministry of Lands and Resettlement has not been questioned by the defendant. The same applies to its validity as it has not been set aside by a competent court.
[21]The versionof the defendant is not accepted. He does not have a better claim to the property than that of the plaintiff, who is not only the surviving spouse of the late Kanguatijivi with whom she was married in community of property and stayed together at the property for almost two decades, but, also has in her possession a certificate issued to her by the authority to farm and reside on the property. The submission that the defendant has a right to occupy the property conferred to him by the Ovaherero customs is rejected. No evidence of the so-called Ovaherero customs was placed before court. Based on the evidence presented before this court, and the authorities referred to by counsel in their written heads of argument, expanded on during oral submissions, it is my view that the defendant is in unlawful occupation of the property lawfully allocated to the plaintiff by the authority as described in the certificate handed in as exhibit “E”.
[22]That being the case, the following orders are made:
(i)The defendant is evicted from the plaintiff’s farming and residential unit at Otjijere Village, Epukiro Traditional Area, Republic of Namibia.
(ii)Costs of suit.
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E P UNENGU
Acting Judge
APPEARANCES
PLAINTIFF:G Narib
Instructed by Dr Weder, Kauta & Hoveka inc. Windhoek
DEFENDANT:M Schurz
of P D Theron & Associates, Windhoek
[1] Act 5 of 2002.
[2] 2009 (1) NR 331 (SC) at 337 para 21.
[3] 2014 (2) NR 489 at 494 para 18-21.
[4] Case No. 3/2008 delivered on 2/4/2014 (unreported).
[5]Act 5 of 2002.