The question which this article seeks to address is to identify the place of customary law, customs and traditions within the Constitutional dispensation and here the focus will be on Ovaherero customary law, customs and traditions.
The writer hereof recently argued a condonation and reinstatement application in the Supreme Court having failed to comply with the rules of procedure of the said Court, in that writer misread the rule with regard to the timelines stipulated for the prosecution of the appeal of a judgement handed down on the 22nd of August 2016, the Summons having been issued in October 2012.
The notice of appeal was timeously filed but the subsequent steps were not until writer hereof was alerted about his non-compliance by the Registrar of the Supreme Court. And a condonation and reinstatement application were lodged with the Supreme Court on the 7th of February 2017. The said application for Condonation and Reinstatement was then sat down for hearing on the 25th October 2017, Exactly 8 months and 18th days.
One may ask, why am I writing about the rules of the High/Supreme Court: The matter in dispute relates to a deceased estate of an Otjiherero speaking man by the name of Phillipus Kaune who passed away in July 1988.
According to the evidence, the deceased was survived by a customary law partner with whom he had no children, but he was survived by 24 descendants of whom 5 were from his customary law marriages.
The estate of the deceased was distributed in 1990 in accordance with Ovaherero customary law, customs and traditions.
A male beneficiary from the second customary law union tendered evidence that in accordance with the oral wish (Eraa) of his late deceased father, he inherited the farm in accordance with the wishes (oral) of the deceased and as such instituted legal proceedings in the High Court of Namibia for a declarator.
Issaskar Kaune was supported in this claim by his two elderly sisters, (±73 – 74 year olds) that indeed the deceased made such a wish that upon his death, this particular beneficiary should inherit the farm. His claim in the High Court was finally adjudicated upon within a record time of 5 years after summons were issued. As such the two sisters tendered evidence to that effect before Justice Ueitele in the High Court.
The version of the claimant is to the effect that when the deceased uttered his wish, only the adult children of the deceased were present which included one illegitimate male descendant of the deceased.
This illegitimate male descent denied the version of the claimant as supported by his two senior Ovaherero Sisters and fabricated a version which excluded the presence of the legitimate adult descendants and substituted them with 3 younger illegitimate descendants of the deceased.
At the close of the claimant’s case, the lawyer representing the illegitimate siblings of the deceased stood up and said to the Justice Ueitele that he all along was putting the wrong version to claimant and his witness that 3 of his clients were present at the meeting where the claimant alleged that the deceased made the wish that he had to correct himself that the 3 descendants were too young and were not at the meeting.
Justice Ueitele during the proceedings before him informed Issaskar Kaune’s Legal Representatives that he did not need to hear from an expert on Ovaherero customary law but that he was more interested in hearing from those who were present when the deceased made his wish (Eraa).
Given the stance of the High Court Judge, the Legal Practitioner then abandoned the calling of the expert witness.
Issaskar Kaune testified that since 1990, he was farming all alone on the farm and that the remaining descendants had no cattle of them at the said farm, a pointer that the farm was distributed to him in 1990.
Another pointer not disputed by the other descendants of the deceased is that all the assets of the deceased were distributed and administered in 1990 in accordance with Ovaherero customary law, customs and traditions.
The learned Justice Ueitele – flip flopped like Trump, having stated earlier that he needs no expert to testify but rather the people who were present when the wish was made – and ruled that no evidence was placed before him regarding Ovaherero customary law as it pertains to inheritance despite the fact that a 64 year old Otjiherero man with his two elder sisters of 73 – 74 years testified as to what transpired at the distribution of the estate of the late Phillipus Kaune in 1990 that indeed the farm was inherited by Issaskar Kaune.
It is my humble submission that indeed he needed no expert to tell him what customary law of inheritance entails because the evidence of Issaskar Kaune and his two elder sisters as adult members of the Ovaherero community must have sufficed as sufficient testimony as they had lived and practiced customary law in their communities.
In 2005, the Parliament of Namibia passed the Estates and Succession Amendment Act No. 15 of 2005 which in essence brought all estates to be subject to the Administration of Estates Act no. 66 of 1965 but stated in subsection 1(2) that
“Despite the repeal of the provisions referred to in subsection (1), the rules of intestate succession that applied by virtue of those provisions before the date of their repeal continue to be a force in relation to persons to whom the relevant rules would have been applicable had the said provisions not been repealed.
Section 3(2) states the following:
“The estate of a person who died before the date of commencement of this Act which was administered immediately before that date, in terms of the Native Administration Proclamation 1928 or must be liquidated and distributed and any matter relating to the liquidation and distribution of such estate must be dealt with as if this Act had not been passed.
The learned Judge of the High Court does not deal with this provisions of the 2005 legislation but jump to the conclusion that the appointment by the Master of the High Court of an executor in the estate of Phillipus Kaune who passed away in 1988 was valid contrary to judgement of the High Court and in particular two (2) Supreme Court judgements.
I respectfully submit that the learned Judge conclusion is not supported by rational reasoning as we are not told how he got to that conclusion.
In the matter of Nekwaya v. Nekwaya, Strydom AJA with Manga JA concurring ruled at para 18 that “Although the Estates and Succession Amendment Act, Act 15 of 2005, repealed those sections declared unconstitutional by the Berendt case, (supra), namely SS 18(1); 18(2) and 18(9) and also S18(10) it continued to state: “Despite the repeal of the provisions referred to in subsection (1), the rules of intestate succession that applied by virtue of these provisions before the date of their repeal continue to be a force in relation to persons to whom the relevant rules would have been applicable had the said provisions not been repeated.
The erudite Acting Justice of the Appeal Court continued at paragraph 19 and stated that as such “it seems that thereby the provisions of the 1969 regulations were resurrected with retroactive effect and, as pointed out by Namlex as far as intestate estates were concerned, the legal position was again the same as before the Berendt judgement had been delivered.
At para  As a result of the above I am of the opinion that at the time of the death of Mr Andreas Nekwaya, in May 2001, the law which applied to the administration and Distribution of the estate had been the 1969 regulations and GN 70 of 1954.
That then is in my opinion the law in terms of which this Court must decide the issues in this matter.
In an earlier Supreme Court judgement delivered on 2nd April 2015, delivered by Maritz JA (Chomba AJA and Mtambanengwe AJA concurring) the Supreme Court held that at paragraph  “The date of the deceased’s passing and of the appointment of his surviving spouse as executrix of the deceased estate (the executrix) fell within the period of the subsections deemed validity in terms of the High Court order.
Given the provisions of the Estates and Succession Amendment Act, the estate had to be administered, liquidated and distributed by the executrix in accordance with the rules of intestate succession that applied by virtue of the provisions of the Proclamation and in terms of the Regulations made under S 18(9) of the Proclamation.
If I was to interpret this in laymans language, I will rather borrow from Justice Parker who stated in the Nekwaya matter before it went on appeal that “the estate of a person who has died intestate before the coming into force of the Estates and Succession Amendment Act, 2005 (Act no. 15 of 2005) and administered in terms of Native Administration Proclamation, 1928 (Proclamation 15 of 1928) must be administered and distributed as if Act no. 15 of 2005 has not been passed.
I reserve a rebuttal once the Supreme Court has pronounced itself on this matter.
*Due to its length, the second part of this opinion piece will be published in next week’s edition.
Isaskar Kaune is a Social Commentator