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Wednesday 25 April 2018
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A legal judgment for sale (Part 2)

The learned Judge Ueitele completely missed the plot when he ruled that the appointment of Van Straten in the estate of the late Phillipus Kaune who died in 1988 was a valid appointment in terms of the Estates and Succession Amendment Act, Act 15 of 2005.
I am fortified in the above view because of the 2 (two) Judgements of the Supreme Court which held that Act no. 15 of 2005 was not applicable to estates of deceased persons who died in 2001 and 2004 respectively and hence CANNOT be applicable to an estate of deceased person who died in 1990.
With the greatest respect to the learned Judge Ueitele, the Judge makes no reference to a judgement of the Supreme Court of Namibia handed down on the 2nd April 2015, a year before he hands down his judgement on the 2nd August 2016.   To make matters worse even though a single Judge judgement is not binding, he makes no reference to the judgement of Parker J which dealt with a similar issue of law which confronted him.
Law students are taught that “cases are usually properly decided on their facts and on the application of the law to those facts”, I must say I am at a loss as to which facts the learned Judge applied the Estates and Succession Amendment Act No.15 of 2005 to arrive at the conclusion that the appointment of an executor in the estate late Phillipus Kaune was validly done.
The effect of this incorrect judgment has catastrophic consequences in that it had uprooted Mr Issaskar Kaune and has arbitrarily deprived him of his immovable property worth N$6,000,000.00 (Six Million Namibia Dollar) and legally unjustifiably has settled him with litigation costs.
This matter came before the Supreme Court of Namibia on the 25th of October 20117.  The Court was constituted by Chief Justice Shivute and Justices of Appeal Messrs Dave Smuts and Theo Frank.  The Supreme Court has opted to dismiss the application for condonation and reinstatement rather than than exercise the constitutional duty placed on it by Article 79 subarticle (2)
“The Supreme Court shall be presided over by the Chief Justice and shall be hear and adjudicate upon appeals emanating from the High Court, including appeals which involve the interpretation, implementation and upholding of this Constitution and the fundamental rights and freedoms guaranteed thereunder.”
Article 81 of the Constitution states that “a decision of the Supreme Court shall be binding on all other courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted.
It is my submission that when the Supreme Court dismisses an application because of non-compliance with its rules of procedure it negates constitutionally guaranteed rights and fundamental freedoms and cannot be said to be compliant with Article 79 subarticle 2.
By not hearing the appeal on the merits, the Supreme Court is complicit in the illegality of the appointment of an executor when in the first instance he should not have been appointed as per the provisions of the Estates and Succession Amendment Act and as per the two judgments of the Supreme Court referred to above.
I trust that the Supreme Court will employ the provisions of Article 81 of the Constitution and reverse its ‘judgement’.
This is a fight to protect the Constitution and I won’t take it lying down.  Who is watching the Chef, Job Amupanda recently recently asked in a newspaper article.  I suppose it is pertinent to ask the same questions as to who is watching over Judges.
The President has termed this the year of reckoning and it is public knowledge that he has requested various Cabinet Ministers to answer corruption allegations levelled against.  I have laid a complaint in this particular with the Judicial Service Commission on the 2nd of January 2018 and to date I have not had a courtesy of an acknowledgement of receipt of the complaint.
I served the same complaint on the office of the President on the 21st of December 2017 at 14h42 and thus await a response from the President as the appointing authority.
Why am I pinning hopes of Issaskar Kaune on The President?  Allow me to borrow from a judgment of the Constitutional Court of South Africa in the matter of EFF v Speaker of the National Assembly. “The President is the head of state and the head of the national executive. His is indeed the highest calling to the highest office in the land.  He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country……
Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed….
And almost all the key role players in the realisation of our constitutional vision and aspirations of our people are appointed and may ultimately be removed by him.  Unsurprisingly, the nation pins its hope on him to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination,  that all other progress-driven nations strive towards on a daily basis.  He is a constitutional being by design, a national pathfinder, the quintessential commander -in –chief of state affairs and personification of this nation’s constitutional project”.
Tjakazenga Kamuhanga Kamuhanga, an admitted legal practitioner, director at Kamuhanga Hoveka Inc., Maerua Mall, Windhoek.
I submit that if the said Court was to deny Isaskar Kaune the condonation and reinstatement application, it will be compl… in the unlawful and illegal appointment of an executor as such appointment is not authorised by the Estates and Succession Amendment Act no. 15 of 2005.
I submit that the rules of the Supreme Court are no substitute for the duty rested in the Court to interpret the Constitution and to uphold its provisions without fear or favour.
The South African Constitutional held “the very reason for establishing the new legal order and for vesting the power of judicial review of all legislation in the Courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.
Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.  It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be sure that our own rights will be protected.
(Sv Makwanyane and Another 1995(2) SALR 1 (6 June 1995)
“Every person” is entitled to claim the protection of the rights enshrined in Chapter Three, and “no” person shall be deemed the protection that they offer.   The little book called the Constitution of Namibia affords Issaskar Kaune and many others like him the right for his culture to be respected, the ancillary right of the late Phillipus Kaune to bequeath his assets in terms of Ovaherero customary law which is protected as per Article 66 of the Namibian Constitution.
In conclusion I wish to state the obvious that, “Law is brought into disrepute if the justice system is ineffective and is conceived as arbitrary”.
The idea of a constitutional State presupposes a system whose operation can be rationally tested against or in terms of the law.   “Arbitrariness must also inevitably by its very nature, lead to the unequal treatment of persons.   Arbitrary action, or decision making, is incapable of providing a rational explanation as to why similarly placed persons are treated in a substantially different way.
In rebuttal of what the Supreme Court may say regarding the letter I directed to the Deputy Chief Justice, I say this in rebuttal.
“ …, there is a danger that the other leg of the Constitutional  State compact may not enjoy the recognition it deserves.  I refer to the fact that in a Constitutional State, individuals agree (in principal at least) to abandon their right to self-help in the protection of their right only because the state, in the constitutional state compact, assumes the obligation to protect these rights.
If the State (Courts in casu) fails to discharge this duty adequately, there is a danger that individuals (who have not been domesticated and emasculated) might feel justified in using self-help) to protect their rights.    [para – 167 – Makwanyani case]. The above may have been said in a case dealing with murder but the same applies to arbitrary decision making by courts of law when they disregard their own rules for reasons only known by the presiding judge.
Disclaimer: I reserve a rebuttal once the Supreme Court has pronounced itself on this matter.
Isaskar Kaune is a social commentator




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