Legal Assistance Centre

Applicants Legal Practitioners

No. 4 Marien Ngouabi Street
Windhoek
IN THE HIGH COURT OF NAMIBIA
MAIN DIVISION HELD AT WINDHOEK
CASE NUMBER: ......../......

In the matter between:

MUTAAMBANDA KAPIKA

APPLICANT

and

THE PRESIDENT OF THE REPUBLIC OF NAMIBIA

1ST RESPONDENT
2ND FIRST

THE MINISTER OF URBAN AND RURAL

RESPONDENT
DEVELOPMENT
THE CHAIRPERSON OF THE COUNCIL OF

SECOND

3RD

RESPONDENT
TRADITIONAL LEADERS
THE KAPIKA TRADITIONAL AUTHORITY

4TH

THIRD RESPONDENT
5TH FOURTH

HIKUMINUE KAPIKA
RESPONDENT

___________________________________________________________________
FOUNDING AFFIDAVIT

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___________________________________________________________________

I, the undersigned,

MUTAAMBANDA KAPIKA

do hereby make oath and state that:

1. I am-

1.1

The Applicant herein;

1.2

the chief of the Ombuku Traditional community, duly appointed as the

Chief of the Ombuku Traditional Community in accordance with the customary

laws, traditions and customs of the Ombuku people;

1.3

a major male person and citizen of Namibia, with full legal capacity duly

able and competent to depose to this affidavit and to bring this application.

2.
1. All of the facts deposed to by me herein are within my own personal
knowledge, unless indicated to the contrary or as the context may imply, and
are to the best of my knowledge and belief, are both true and correct.

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2. Where I make legal submissions, I do so on the basis of advice that I have
received from my legal representatives, which advice I verily believe to be
correct.

3.

Where I refer to the customary laws relevant to the Ombuku Traditional

Community I do so pursuant to my own personal knowledge and experience

regarding the customs, social norms, traditions culture and laws of my people. I
speak of the processes regarding succession of chieftainship. I humbly submit that
my knowledge of the customary laws,norms, culture, history and traditions of the
Ombuku Community is those of an expert. I have been a part of this community for
sixty-three years.

4.

I also point out that I do not have a formal or tertiary education and I am

illiterate in the sense that I am not able to write properly nor can I read very well. I
come from an oral tradition and had no schooling opportunities when I was young. I
am not well conversant in the English language, nor Afrikaans. I have narrated my
story in my mother tongue, being the vernacular of the OvaHimba which is similar
to the OtjiHerero language. I have consulted with my legal practitioners and narrated
these facts of this case to my legal practitioners through an interpreter.

5.

My legal practitioners have prepared this founding affidavit on my behalf and

in accordance with my instructions on the 28th of Septmeber 2016. The draft

affidavit was interpreted for me and I accordingly confirm the correctness of all the
statements that I have made herein and have taken the prescribed oath when I
deposed to this affidavit. I have used my right thumb imprint to make my mark.

6.
I reside at my homestead at Ombuku-Epupa area, Kunene Region, Namibia.

The Respondents

7.

3. I am an adult male Namibian citizen and a member of the OvaHimba

(Himba) traditional community also known as the Ombuku traditional community

which predominantly occupies the Ombuku-Epupa area within the Kunene region of
Namibia.

4. I am the applicant herein. I reside at my homestead in the Ombuku-Epupa area,

Kunene Region, Namibia.

5. The 1st Respondent is HIS EXCELLENCY HONOURABLE DR HAGE

GEINGOB, cited herein in his representative capacity as the head of State and
of the Government of the Republic of Namibia in terms of the Constitution of
Namibia, and in respect of his decision making powers regarding the
designation and recognition of the 5th Respondent as the Chief of the Ombuku
traditional community in terms of Section 5(6) and 6(2) of the Traditional
Authorities Act, No. 25 of 2000 (hereinafter the Act), as applicable and who
shall accept service of all documents, notices and pleadings in these
proceedings at the office of the Government Attorney, 2 nd Floor of Sanlam
Building, Independence Avenue, Windhoek, Namibia.

6. The 2nd first rRespondent is HONOURABLE SOPHIA SHANINGWA the

MINISTER OF URBAN AND RURAL DEVELOPMENT, cited herein in her
capacity as the Minister appointed in terms of Article 32(3)(i)(bb) of the
Namibian Constitution, and who is responsible for the administration of the
Traditional Authorities 25 of 2000 (The Act) and is empowered to make
decisions regarding the approval of the designation of the 5th fourthR
respondent as Chief of the Ombuku traditional community, and who shall
accept service of all notices, documents and pleadings in this matter at the
office of the Government Attorney, 2nd Floor of Sanlam Building, Independence
Avenue, Windhoek, Namibia.

8.

7. The second respondent 3rd Respondent is IMMANUEL KAULUMA

ELIFAS N.O. cited herein in his representative capacity as the CHAIRPERSON

OF THE COUNCIL OF TRADITIONAL LEADERS, a statutory body established in
terms of Section 2 of the Council of Traditional Leaders Act, No. 13 of 1997 and
by virtue of the powers conferred on it in terms of Section 5 of the Act and in
respect of any interest that the Council of Traditional Leaders may have in
these proceedings by virtue of Article 102(5) of the Constitution of Namibia
and which shall accept service of all notices, pleadings and documents in this
matter at the office of the Government Attorney, 2nd Floor of Sanlam Building,
Independence Avenue, Windhoek, Namibia.

9.

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8. The 4th third Rrespondent is the KAPIKA TRADITIONAL AUTHORITY,
established in terms of Section 2(1) of the Act, for the Ombuku traditional
community. Alternatively, it is the community under which the fourth Respondent is
gazetted as the acting chief. It has its office address at the Homesteaad of the
Fourth Respondent.
traditional community, with its head quarters at ......

10.

9. The 5th fourth rRespondent is HIKUMINUE KAPIKA, an adult male

Namibian citizen who resides at his homestead at Omuramba in the OmbukuEpupa area, Kunene Region, Namibia.

11.

10. The first and second 1st to 4th Respondentss areare administrative

bodies andand officials acting in their capacities as administrative

functionaries and accordingly are compelled to fulfil the obligations imposed
on them by Article 18 of the Constitution of Namibia.

12.

11. This application is to request this Honourable Court tohis is an application

for the review and setting aside theof a decision of the 1st first Rrespondent
and/or 2nd and/or 3rd Respondents made during or about the 3rd of February
2016, alternatively to declare the decision of the first respondent to be null and void.

13.

15th of July 2016 I attach hereto a letter dated the 3rd of February this year

from the office of the first respondent, marked MK-1 according to which the

7
first respondent confirms that it has approvedwhich the designation and recognition
of the 5th fourth R respondent as Chieff of the Ombuku traditional community.

14. I am also advised by my legal practitioners that ty was published in the

Government Gazette No. 6072 dated 15 July 2016 (annexed hereto marked
MK-22) publishes the appointment of the fourth respondent as an acting chief
of the Ombuku Traditional Community. I do not know whether or not the third
respondent has been properly established in accordance with the Act because I have
not seen any gazette regarding appointment of councillors and so on.

15.

I bring this application on my own behalf as a member of the Ombuku

Community and also on behalf of my councillors in my representative capacity as

the head of the Chiefs Council, and on behalf of the Ombuku Community in my
capacity as the legitimate traditional leader of the Ombuku Community.

16.

12. It is the decisions that led up to the above annexure from the 1 st and 2nd
Respondents that I respectfully request the Honourable Court to review and
set aside, alternatively to declare as null and void.

13. I have a direct and substantial interest in this matter for the reasons set out
more fully below.
.
Ad condonation for delay in instituting revew proceedings.

17.

I am advised by my Legal Practitioners that matters of this type typically have

to be brought to court without any unreasonable delay. I am further advised that in

the event that I am seen to have brought this application without a proper reason, the
court may dismiss my application on that ground alone.

18.

I am advised that the test which the Court will apply is of a dual nature,

namely whether the proceedings were instituted after expiration of unreasonable

time and if so, whether the unreasonable delay should be condoned.

19.

I am also advised that the Court has a judicial discretion in respect of

condoning an unreasonable delay and that it was furthermore a matter of public

interest that review proceedings should be brought within a reasonable time.

20.

In these circumstances I humbly pray that any delay on my part be deemed

to be a reasonable delay and is condoned by this Honourable Court. I will

submit that my delay in instituting these proceedings is not as a result of any
wilful neglect on my part, taking into account the surrounding circumstances of this
matter.

21.

I further submit that the court must take into account my personal

circumstances and logistical challenges.

22.

Once it became apparent that the designation of the chief had been approved

by the first respondent, many people did not realise how it had come about that the

9
fourth respondent was delegated as chief by the community, since nobody, other
than his new councillors, in the community participated in any deliberation or
consultation on the issue.

23.

Initially when I was appointed as the chief, it would have seemed that the

issue was resolved according to our customs and customary laws.

24.

I received a copy of the first respondents letter annexed as (MK-1) during or

about April 2015. There was much consternation in the community regarding this.
We did not know how to resolve this problem within the community structures.

25

We had a number of meetings discussing this matter. I have stated that

generally our issues are resolved by the community within the ambits of our customs
and social norms. I am not fully acquainted with litigation in the civil courts of
Namibia.

26.

It was resolved by the community that we should speak to the first respondent

or otherwise investigate the matter. Eventually in June, I went to Windhoek with a

delegation of my people, including my councillors to see the first respondent.
However, we could not be seen at that time.
27 .Then while we were still in Windhoek we went to the Legal Assistance Centre to
see if we could get some help there.

28.

When we got there we were told that there was nobody present to consult

with us but that if we came back a few days later an opportunity would be available.

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We had many things to discuss with the Legal Assistance Centre. We stayed in
Windhoek that whole week.

29. We consulted towards the end of June 2016, not only in regard to the issue of
the fourth respondents appointment but also in relation to the matters related to the
increased activity regarding the Baynes Dam and issues of non-recognition of our
traditional leaders.

30. We remained in Windhoek and again consulted with the people at the Legal
Assistance Centre in July of this year. The Legal Assistance Centre had two
candidate legal practitioners and one of whom spoke the Ovaherero vernacular.
There were thirteen of us present and not all for the same community. Each one of
us gave a statement to the Legal Assistance Centre regarding the issues that we felt
were directly affecting us as communities. These statements were recorded over a
period of three days.

31. It was only in September again when the Legal Assistance Centre advised me
that after having considered all of the matters that we had discussed, that the
approval of the chief by the First Respondent needed to be addressed first.

33.

The communications between me and the Legal Assistance Centre is

cumbersome. We do not have any modern communication equipment at Ombuku.

Even our cell phones do not work properly over there. There is also a language
barrier. When we can establish communication it has to be through an interpreter
who will communicate with our legal practitioners when he goes to Opuwo.

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34.

The distance between us and our legal practioners is more than seven

hundred kilometres and we do not have any cars. If we have to travel we have to
plan well in advance to collect the necessary funds to pay for a taxi or for the petrol
costs if we have a community member who can assist us in travelling. It is for these
reasons, mostly that the delay in bringing these proceedings has occurred.

35.

A representative of our Legal Practitioner was only able to attend a

consultation with us at Opuwo on the 28th of September 2016 to review our

statements and this affidavit. But some of the required deponents were not available.

36. Finally, I humbly submit that the delay that has been occasioned is not such an
inordinate delay that it would prejudice the public interest. I also mention that our
circumstances preclude speedy consultations and communication with our legal
practitioners.

37.

I say that the public interest is not prejudiced because to date the only

recognition the fourth respondent has as chief of the Ombuku community is by the
first respondent and his councillors with very little support from the community. The
actual status quo has not changed. I am still regarded as the Chief by the Ombuku
Community and I perform all of the functions of the Chief with my councillors. It
would be preferable to serve the public interest by allowing certainty regarding the
administrative decision of the first respondent.

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38.

The unilateral appointment and approval of the fourth respondent as the chief

by the first respondent has undermined the public interest regarding this matter. Not
only has it the potential to divide our community, but also potentially criminalises the
legitimate leadership institution of our community, since our leadership structures are
now possibly in conflict with the Statutory recognised status of a Traditional
Authority conferred by the first respondent through its approval of the fourth
respondent as the designated chief. In terms of the Act. I humbly submit that it is in
the interests of justice and in the public interest that the approval of the fourth
respondent as the designated chief be reviewed and set aside.

The Ombuku Traditional Community.

I am the legitimate customary leader and Chief of the Ombuku traditional community,
having been elected and duly appointed and recognised by the Ombuku
traditional community in accordance with the customary laws of the Himba
39.

The OvaHimba have traditionally occupied the Kaokoland area, in the Kunene

Region of Namibia, under their own customary laws since time immemorial. I know
from our pre-colonial oral history and knowledge passed through the generations
that the OvaHimba territory extended from the Kunene River in the North even in
Angola, to Damaraland in the South, to the Atlantic in the West, and to the
OvaZemba and Owamboland in the East and is now generally considered to be that
communal land as described in the First Schedule in the Communal Land Reform
Act.

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40.

Kaokoland is a fairly vast area and accommodates various distinct

communities who live there. The communities are distinct and in some cases are
quite far apart from each other in geographical terms. Territorial boundaries
between the various communities of the OvaHimba and other communities were
respected by each other and each traditional community was and is responsible
through its own customary administrative structures for the administration of their
people and lands which are commonly inhabited by those communities. Presently
there are about 33 distinct traditional communities in the Kaokoland, each with their
own leadership structures in accordance with the customary laws of the OvaHimba
in general and more specifically as it developed within a particular community as
it adapted and evolved to accommodate the social norms of that community.

41.

Much of the body of customary law which regulates the OvaHimba society

generally within Kaokoland is common to all of the distinct communities in the

Kaokoland but some aspects have specifically developed to accommodate each
unique communities social and moral development over the ages.

42.

Of the 33 Traditional Leaders in Kaokoland, there are only four that have

been officially recognised by the Government in accordance with the Act. All of the
OvaHimba leaders are known to each other and reciprocally acknowledge the
legitimacy of their respective statuses.

43. Despite numerous applications in terms of the Traditional Authorities Act by all of
the chiefs since Namibias independence the Government, through its executive
machinery, has, for the greater part, refused and/or failed to properly consider or

14
officially recognise the legitimate leadership structures of the OvaHimba traditional
communities of the Kaokoland.

44.

Since Independence the relevant Government organs, notably the office of

the First Respondent, has refused to acknowledge the official legitimacy of, inter
alia, the Ombuku Traditional Community under the leadership of its legitimate chiefs
despite many efforts to persuade the relevant bureaucrats in the statutory scheme
under the Act to do so. Previous applications and representations on behalf of the
fourth respondent had been advanced to the first respondents ministry over the
years but to no avail. That is to say until the events related in this affidavit took
place.

45.

As stated above, I am the lawful traditional leader or Chief of the Ombuku

traditional community, having been elected, duly appointed and recognised by

the Ombuku traditional community in accordance with those customary laws
and norms that regulate succession of leadership within our community.
people.

46.

14. The Ombuku traditional community is also known as the

Muniomunoro traditional community, because it was initially under the

leadership and customary jurisdiction of my late father, Chief Muniomunoro
Kapika. I am also aware that it is referred to as the Kapika Tradtional community in
recognition of the Kapika lineage.

Succession of leadership in the Ombuku Community

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47.

The leadership of the Himba people in the Obmuku-Epupa area under

the Kapika family has a long history of succession by community participation

and consensuselection. The history of the Kapika chieftanshipchieftainship as
described to me by my parents and other elders begins with the
chiefstanshipchieftainship of Muje Tjiuju which includes the villages and towns
known as Otjomazeva, Oronditi, Epupa, Enjandi, Okaambi, Okandombo,
Ejajona, Okanguati, omuhonga, Omuramba, Ondova and Ohajuua among
others.

48.

Muje Tjiuju was succeeded by his nephew, Kahengombe Kapika and he

by Mbuaanandja Kapika. On the death of Mbuaanandja Kapika, my late father

Muniomunoro Kapika (who is also the father of the fourth Respondent), was
elected as Chief by the Ombuku traditional community in accordance with the laws
and customs of the OvaHimba and more particularly, of the Ombuku community.

49.

As one can see, the chieftainship of the Ombuku Traditional Community has

inadvertently passed along the Kapika family blood-line. Sometimes the current chief
would nominate his successor as his preferred heir but this is always subject to
the approval or majority consent of the elders and the community in general.

50.

According to the traditions and the customary laws and norms of the Ombuku

Traditional Community, the community has the prerogative to determine any

nomination for the position of the chief by way of a popular election.

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51.

These prevailing customary norms and laws of the Ombuka traditional

community regarding leadership succession does not recognise hereditary title

through a royal blood line. The institution of a Royal House is not part of the
customary law or customs and traditions of the Ombuku Traditional Community. This
is not to say that other traditional communities of the OvaHimba do not have
recognised royal bloodlines and rules of hereditary succession.

52.

While the OvaHimba and other Kaokoland communities have shared laws that

are of general application and generally evident and common to all of the traditional
communities in Kaokoland, each community may have its own specific nuance
insofar as the customary law is unique to that traditional communitys social
needs and leadership structures. OvaHimba customary law is a flexible or living law,
it has uniquely evolved to accommodate each communitys developing social
norms and needs over the preceding centuries. The customary laws are not written
down. It is an oral tradition passed from one generation to the next.

53.

15. Although I am the chief now, this was not always the case for me. The 5th
Respondent was relieved of his leadership position by the Ombuku traditional
community in accordance with the customary norms and laws of the Himba people in
circumstances described more fully below.

Background

17

16. The leadership of the Himba people in the Obmuku-Epupa area under the
Kapika family has a long history of succession by election. The history of the
Kapika chieftanship as described to me by my parents and other elders begins
with the chiefstanship of Muje Tjiuju which includes the villages and towns
known as Otjomazeva, Oronditi, Epupa, Enjandi, Okaambi, Okandombo,
Ejajona, Okanguati, omuhonga, Omuramba, Ondova and Ohajuua among
others.

17. Muje Tjiuju was succeeded by his nephew, Kahengombe Kapika and he by
Mbuaanandja Kapika. On the death of Mbuaanandja Kapika, my late father
Muniomunoro Kapika (who is also the father of the 5 th Respondent), was
elected as Chief by the traditional community of the Ombuku-Epupa area in
accordance with the laws and customs of the Himba people. Over the years,
the chieftanship has passed along the Kapika blood-line when the current
chief would nominate his successor subject to the approval or majority
consent of the elders and the community in general.

18. When my father was ill and on his death bedShortly prior to my late fathers
death - during or about the year 2000 - my late father, he advised told me and the
elders of the family that he wanteds me to succeed him as the Chief as Chief
after he died because he believed that I was closer to the community.

54.

But However, when my father died, the elders of the family and some of the

councillors were of the opinion that I was too young to take over the

18
chieftanshipchieftainship. The matter was debated by the community at a
community meeting and it was resolved by voting that the fourth respondent, who
is my elder brother, would be appointed as the chief of the Ombuku community.

55.

It is under these circumstances that, due to my youth and contrary to my late

fathers wishes, the elders installed the fourth respondent as chief in accordance with
the communitys consent after my fathers demise.

56.

There was nothing untoward by this process and I accepted the fourth

respondents appointment without any reservations or animosity. At that time, the

fourth Respondent was the only Chief in the area of Ombuku and certainly the duly
recognised and respected chief of the Ombuku traditional community. I served as a
senior councillor on the fourth respondents Chiefs council for approximately
15 years and diligently supported his efforts on behalf of the Ombuku
Community that he represented until the events that have recently transpired.

57.

Although the recommendation of the outgoing chief is a matter of importance,

due consideration of the wishes of the community underpin the process of

appointing a chief. It is the elders and chiefs council who nominate favourite
or capable candidates and the traditional community, at a meeting convened for that
purpose, elect the nominees by popular vote. The Chiefs councillors are similarly
elected by the community although they may also be nominated by the chief and
councillors.

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58.

19. In terms of the customary laws and norms of our people, there is no

definite rule of succession by royal blood-line or inheritance. The current Chief

makes a recommendation of who should succeed his title. However, the elders and
the traditional community as a whole are the final arbiter in determining who
succeeds as Chief, by way of election.If the community is of the opinion that the
Chief is no longer capable of performing his duties as the leader of the community
for any reason, a community meeting is convened to consider the circumstances and
to resolve the problem by popular consensus in accordance with the customs and
norms of the Ombuku community.

59. This type of event is seldom seen within the Ombuku traditional community, only
on issues of chieftainship. In this case the process came about and was used as an
absolute last resort to prevent a leadership crisis. It is an exceptional procedure. It is
correct to say that community meetings are always convened to consider
weighty issues, especially such as this.

60.

It is the chiefs duty to engage with the community and to preside over

meetings that pertain to issues affecting the traditional community and

disseminate information relating to these. If the Chief fails to engage with the
community, it is considered that the Chief no longer seeks to bear the responsibility
of his or her office as the representative of the traditional community and does not
want to continue to act in the interests of the traditional community. To act, the chief
has to engage with his councillors and the community.

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61.

Where the chief has turned his back on the people and does not represent the

common interests of the community it is deemed that the chief has abandoned his
people and not that the community has opted to remove him. It is as though he or
she has walked away from his people. It is generally after several interventions
by community members or the elders of the chiefs councillors, as the case
may be that will persuade the community that the errant ways of the Chief are
sufficient to assume he has abandoned his responsibilities.

62.

In such a case it cannot be said there is a leader and head representative of

the traditional community. The Community will assemble to debate and consider the
issue whereupon an election may be held to appoint another leader in accordance
with the common consensus of the traditional community depending on the
community decision.

63.

This community decision is not taken lightly by the community.

64.

Indeed, where there is such a serious matter the community, meetings are

attended by neighbouring chiefs and leaders or representatives of that authority. In

such a case our neighbouring leaders will support the community and usually assist
in mediation or collective wisdom necessary to drive the process to reach
consensus on how to resolve the issue.

65.

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I was born and have been raised in the traditional community of Ombuku and
resided in the Ombuku-Epupa area my whole life thus far. I am now sixty-three
years old. I have accordingly become steeped in the traditions, collective customary
knowledge and history of my people and have a thorough knowledge of our
customary norms and laws to which I have been subject and experienced my entire
life.

66.

My duties as a senior councillor on the fourth respondents erstwhile chiefs

council for about 15 years and lately as a chief of our community has ensured my
direct involvement in the formulation, implementation and administration of
customary laws with the active participation of the community and my traditional
councillors.

67.

As a Chief, it is my duty and obligation to advise and oversee the

administration of our customary laws and thereby ensure that our social norms or
customs are respected and adhered to by our community.

68.

20. About 15 years ago, due to my youth and despite my later fathers

wishes, the elders installed the 5th Respondent, as Chief for the community and the
community accepted their decision. At that point I also accepted the appointment. At
that time, the 5th Respondent was the only Chief in the area of Ombuku.

21. However, trouble soon started when the 5th Respondent did not even attend
the funeral of our late father, our former Chief. The 5 th Respondent and I,

22
together with our late father, all lived in the same household. Soon after my
fathers death my siblings and I were chased out of the house.

22. A group of people from the community bought a gravestone for my fathers
grave. The 5th Respondent took issue with this. It is common practice in our
community that when a leader dies the community would come together and
have a ceremony. The 5th Respondent opposed this idea. The aim of putting up
a gravestone is to preserve the grave. The community continued with that
practice and the 5th Respondent became unhappy as he did not give
permission and as a reult he refused to join the ceremony. It was at this point
that the 5th Respondent started to move away from the community.

23. I say move away, becauseDuring my tenure as a senior councillor under the 5th
fourth Respondent respondent it is common cause that the fourth respondent was
initially admired and respected by theas Chief by the community as the chief. He
displayed good leadership skills, he was intrinsically involved in the affairs of
the community and. He had always he was respected by the majority of the
community due to hisdisplayed unwavering loyalty and integrity to towards the
community and his fierce and unwavering stance in protecting the interest
interests of the community is recognised and appreciated by the community and
others. He always fully engaged with his community and remained accessible to all.
. However, the commotion caused by the 5th Respondent disagreeing with the
elders and the community regarding the erection of our late fathers
tombstone, left the community displeased as their new Chief. Despite that, the

23
community felt it was too early to remove him as Chief and opted to
communicate with him to try and resolve their differences.

The Baynes Dam Issue

24. A further issue arose between the community and the 5th Respondent
when there was a programme of IRDNC to manage the grazing activities of our
people. The 5th Respondent stopped the programme and the community
continued without his permission. The 5th Respondent became jealous and
complained of this which led to a community meeting under the tree one day
to try and resolve this issue.

25. On a different occasion another issue arose between the wishes of the
community and the 5th Respondent when Epuwo wanted to give a present
(make a donation?) by building a community garden. The 5th Respondent was
against this community project and they ??? took it away.

26. On another occasion, the 5th Respondent notified the community that a
conservancy must be established for the area........Peter please elaborate, its
not clear from your notes

Circumstances that led to the 5th Respondents removal as Chief

27.
69.

During the 5th fourth Respondents respondents time tenure as Chief, it

became known that one of the most difficult post-independence issues that we had

24
to deal with as part of the OvaHimba and neighbouring communities and particularly
the Ombuku Community related to the Governments proposal to dam the planned
to build a dam on the CKunene river at Epupa Falls, to make a hydro-electric dam.

70.

which falls within our customarily occupied territory. This caused an immense

amount of concern great concern to the potentially affected communitiesy and

was considered a major threat to the ongoing survival of the OvaHimba
peoples customs, culture and traditions and very identity of our people.
71.

Among other negative affects on the communities of Kaokoland, Tthe dam

threatened to flood a large part of our traditional lands, including gravesites of

our ancestors, sacred places, villages and large parts of the commonage used
for cultivation and the grazing of our livestock.

72.

After a thorough and critical analysis of the various proposals and reports

regarding both the Epupa and Baynes site, it is common consensus among the
OvaHimba and the other Kaokoland communities and our similarly placed Angolan
communities that the whole project would erode our customs and culture, diminish
our natural resources and generally undermine our rights as citizens of Namibia and
as human beings. Ultimately we, as a people, would vanish..

73.

28. ShortlyDuring the early years after independence, our people, initially

under the leadership of my late father and then the 5th fourthR respondent,
strongly and persistently lobbied against and resisted the planned
construction of the hydroelectric dam on the Epupa falls. The history and

25
political dynamics of this surrounding the hydro-electricproposed dam controversy
dam is common knowledge and well documented, alia, in the detailed research
paper written by Professor Sidney Harring, Sidney, called "God Gave Us This Land:"
The OvaHimba, the Proposed Epupa Dam, the Independent Namibian State, and
Law and Development in Africa" (2001). CUNY Academic Works.
(http://academicworks.cuny.edu/cl_pubs/260 accessed on 22 September 2016.)
Should it be required I will make a copy of this publication available on request
through my Legal Practitioners. These findings are almost equally applicable to the
Baynes site.
and
74.

Accordingly, I shall not unnecessarily burden these papers with the

details of those years of opposition to the proposed Hydroelectric dam .which

opposition continues to this very day. In short however The result, of the campaign
by the OvaHimba against the damming of the Cunene River was seemingly
successful when the project was initially called off because international funders,
including Japan, withdrew its support.

75.

But the Government has persisted and made clear its intention to dam the

river downstreamnot built at the originally planned location and the Government
decided to pursue an alternative site it had identified which lies in the Baynes
Mountains at Orokawe which is also within our customarily ancestral territory.
occupied territory. The effects and impacts on us will remain the same as before
and our objections remain as they have been voiced before.

26
29. This second choice was not welcomed by the community either, primarily
since the issues remained the same and the community resisted what they
considered an ill-conceived plan up and until this very day.
76.

The spectre of the dam building project has constantly loomed over the

OvaHimba communities and others and is a source of great anxiety and concern to
the vast majority of us. It is like a hyena at your door in the night. Generally, all of the
OvaHimba and other communities who occupy Kaokoland share the same stance on
the matter In this regard my legal practitioners have in their possession and control
signed special powers of attorney from 820 people from the Ombuku-Epupa area to
take all legal steps necessary to protect their rights in relation to the building of the
proposed dam in the Baynes Mountain site. which, in simple terms, is that we dont
want the Cunene river to be dammed.

77.

We have vigorously repeated this to the Government representatives over

many years but it does not take heed of our legitimate interests and it does not
include free prior and informed consent or any meaningful participation with the
affected communities in its decision making processes regarding this dam.

78.

In February 1998, 26 out of the 33 traditional leaders from the Kunene

Region, in which the proposed project site is situated, signed a petition to the
United Nations Organisation stating we do not believe that the project is in the best
interests of Namibia nor the communities we represent in the Kunene Region, while
we believe that the project will be particularly damaging to the livelihood and
economic subsistence of the Himba people living in the project areas which would be
flooded should the dam be built

27

79.

Our people have constantly and vigorously opposed the plan to build a

dam on the CKunene river since its inception this idea resurfaced shortly after
independence. Our people will and shall continue to do so resist this plan for many
reasons, which are not strictly relevant to this matterapplication. This issue
remains close to us and is of such great concern because it affects all of the
OvaHimba people, directly or indirectly. For the more than two decades of Namibian
Independence, the OvaHimba peoples and others have objected to the construction
of the Baynes Hydro Power Plant in Orokawe, Namirbia.

80.

We have written letters to the head of state and other relevant governmental

authorities, filed complaint at the United Nation and carried out many different
protest marches. We have demonstrated adequately, so we would like to believe,
that there is not any legitimate interests of anybody to dam the Cunene River. We
have made it clear that we are not against development per se. The dam building
project has no benefit to us, our neighbouring clans in Angola, the environment and
nor the general populace of Namibia. There are technologies available that will
cause less harm to the environment and affected people than a Hydroelectric dam.

81.

The fourth respondent was our leader in this struggle and mobilised support

both domestically and internationally as a result of his concerted efforts to bring our
plight to the forefront. He even travelled to the Netherlands and to Geneva. The
fourth respondent did not waiver from this cause and became an icon
regarding our indigenous peoples rights and the severe environmental and social
impacts relating to dam building generally and in particular in relation to our people.

28

82.

Not only was the fourth respondent our chief, but was our spokesman and

representative of all of the affected communities in the Kaokoland. He made it clear

time and time again that the local communities would resist dam building
projects on the Cunene River in the Kaokoland for sound reasons.

83.

It is safe to say that the proponents of the proposed Baynes dam considered

the fourth respondent to be the main obstacle to the construction of the Baynes
hydroelectric dam, a project they desperately want to get off the ground and at
any cost.

The Inauguration

84.

During or around November of 2013, information started circulating around

the community that two Namibian men, Mervin Hengari and Justice Tjirimuje, were
heavily targeting Chief Hikuminae Kapika (Epupa region) to win his support for the
construction of the dam along the Kunene River.

85.

After visiting the fourth respondent on several occasions, these two people

eventually returned to the homestead of Kapika, with a Namibian government

delegation and representatives from a Chinese construction company, Sinohydro
Corporation, in particular a certain Mr Hou Qiuxia.

86.

For the sake of expedience, I will refer to this trio, Mervin Hengari, Justice

Tjirimuje and Hou Qiuxi as the businessmen. During that meeting, Chief Kapika

29
reportedly agreed to a proposal that members of the Himba community would
travel to China along with himself to learn about and to see dams.

87.

These reports gave rise to a lot of anxiety in the various neighbouring

communities and our own so we requested the fourth respondent to clarify the
position with the Ombuku community. The community was concerned about the dam
issue and also complained that of the proposed delegation that was organised,
without their participation, excluded representatives from those communities who
would be most directly affected by the dam.

88.

Ultimately, senior councillor Motjinduika Kapika, of my chiefs council, was

selected to accompany this delegation to China.

89.

Once the delegates returned from China they were to give an account to the

fourth respondent and the community regarding the visit to see some dams in China.
When they returned they approached the fourth respondent to provide feedback to
the fourth respondent.

90.

30. At the time the community organised itself and requested the Legal Assistance
Centre to act on behalf of the members opposing the building of a dam and when the
power of attorneys were given by the members of this traditional community,
the opposition to the dam building scheme was fully supported and endorsed

30
by the 5th Respondent who was at the time recognised and generally accepted
by the community as their traditional leader.

31. Save for a very small minority of people, the majority of the residents in
this area do not desire that a dam be built as planned. Over the years, this
stance became a thorn in the Governments side. There were also many
political implications as traditionally, the 5th Respondent along with the
majority of the Himba people supported an opposition political party and the
ruling party had very little support.

32. At all material times until the 5th Respondent was removed from his
position as the Chief by the community, I was a senior councillor on the
Chiefs council together with Mr Maongo Hembinda, whos supporting affidavit
is annexed to this application marked as annexure ...

33. Over the years there were many attempts made by representatives of
Government to persuade the 5th Respondent to cease resistance of the plan to
build the dam, to no avail. I may add at this point that since independence,
many of the traditional leaders of the Himba people have applied for statutory
recognition however, same was always rejected by the relevant administrators
without providing any proper reasons.

34. It had long been the desire of the 5th Respondent and the community that
Government recognise and confer statutory status on the Chief of the Himba
people as we believed that Government did not have any interest in supporting

31
people without proper representatives. However, despite this, Government has
always refused to recognise the Chief of our community, who at the time was
the 5th Respondent.

35. During or about November 2015 a certain Mr Tjirimuje and a certain Mr Hou
Qiuxia (a Chinese national representing Sinohydro Corporation, a Chinese
registered company) came into our area and started visiting members of the
community.

36. Some members of the community including the 5th Respondent and .....
were invited to travel to China to show them examples of hydroelectric dams.
Our understanding was that they would return to tell the whole community
what they saw in China.

37. When they returned,However, the 5th fourth Rrespondent did not want to
have a community meeting. The original plan was to gather the community on
the first day, which included representatives from the other communities, not being
Ombuku only. andWe planned then to have a meeting on the second day. During
the The evening of the first day, the fourth5th rRespondent mysteriously
disappeared.

91.

However, even before this feedback meeting some of the delegation had

already expressed their views regarding the dams in China to some of the
community. Before they returned home they declined to see any further dams that
were on the itinerary.

32

92.

They said that they were not happy with the dams and were very concerned

that they were not allowed to properly speak to Chinese local communities who
were displaced in the process of building the dams seen in China.

93.

On the same day that the community were gathering for the meeting to be

convened the following day, the fourth respondent told the delegates to wait until the
businessmen arrived. Even when these three people did eventually arrive the
fourth respondent refused to hear the delegations report or to allow them to report
back to the community.

94..

I refer to the affidavit of Motjinduika Kapika in support of this application,

in regard to his trip to China and the subsequent behaviour of the fourth
Respondent.

95.

As such, the community meeting did not take place because during that same

day the businessmen left the area and the fourth Respondent disappeared from
his homestead. He did not notify his councillors or any of the community. He just
left.

96.

After several days of his absence, people started growing anxious.

Myself and Mr Maongo Hembinda , both senior councillors of the fourth respondent
at the time, started making enquiries and eventually discovered the 5th
Respondent had been taken to a farm near Okahandja. We received no
information as to his whereabouts.

33

97.

Subsequently, with the assistance of Chief Matthius Uomiti Ruhoza of the

Otjiruga Traditional Community, I travelled to Windhoek with Maongo Hembinda,

Motjie Kapika and Chief Ruhoza. We basically asked around from members of our
communities living in Windhoek if anybody knew where Chief Kapika, the fourth
respondent, was.

98.

Some time later I received a phone call from a member of the community

who informed me that the 5th Respondent had been taken by vehicle to a farm
neawe established that he was at the farm r Okahandja called Omussoralwamba
Plaas near Okahandja. This farm belongs to one of the businessmen, Justice
Tjirimuje. At that stage the 5th fourthR respondent had been missing for more
than a month.

99.

I 38. Myself, Maongo and several other people travelled to the Okahandja

to the farm with other community leaders there was Maongo Hembodi, Chief
Jonas Ngombe and another community member - where the 5th fourth
Respondent was apparently being held. After we arrived, we enquired from the
fourth 5th Respondent why he was there, why he did not inform anyone of his
whereabouts and why he deserted the community. He simply stated that he
was sick and complained of his feet being sore and further said that he was
not under any obligation to tell anybody of his whereabouts.

100.

39. During this discussion, some people started shouting and saying

that theyy were the chiefs councillors and said that we wanted to assault ....? and

34
that we must should leave the farm. The 5th fourth Respondent only indicated that
he would return soon. He did not look ill to me. We decided to leave and as we
were doing so there was an issue with the gate being locked. Some people,
including the owner of the farm came to the gate and questioned us over why
we were on his farm. We responded that we were looking for our Chief. They
were unhappy that we were there without making a prior appointment.

101.

40. Soon after returning to Ombuku, tThe 5th fourth Respondent also

returned to his homestead after three months of abandoning the community.

Alsobut, to our surprise, he was escorted by at least 15 members of the
Namibian Police Force. The 5th fourth Respondent entered hisdisappeared into
his homestead and refused to speak to anyone or entertain any meetings.

41.
102.

I say this because, as a senior councillor, Mr Maongo indicated undertook to

that he would go see the 5th fourth Respondent the next day and try and find out
what was going on, particularly since he was now guarded by in relation to why he
was being guarded 15 armed members by members of the Namibian Police
Force. I also refer to Mr Maongo Hembindas affidavit confirmatory affidavit in
support of this application.

103.

42. Mr Maongo then related the story of what happened (as confirmed in

his supporting affidavit annexed hereto marked ....) When he arrived at the 5 th
RespondentsWhen Mr Maongo Hembinda appeared at the fourth respondents
homestead, he was stopped by police who held him at gunpoint. The police

35
asked him why he was there and he responded in saying that he is there to see
the 5th fourth Respondent and that he would only speak to his Chief.

104.

43. More armed police officials came out of the 5th fourth Respondents

homestead, surrounding Mr Maongo and eventually 5th the fourth Respondent

agreed to see himallowed him an audience however but only in the presence of
therefusing to dismiss the armed bodyguards. Even so, Tthe 5th fourth
Respondent refused to answer any questions and chased Mr Maongo
Hembinda away, the only thing that he communicated was that he was scared
and that he was being threatened.

105.

He also said that Maongo was no longer a councillor as he, the chief had

appointed others. In fact he dismissed six of us.

106.

Then on about the 14th of July 2014 the fourth Respondent announced

that he had joined the ruling SWAPO ( South West African Peoples Orgnisation)
political party and that he now suddenly supported the proposal to build the dam in
the Baynes Mountain. This celebratory event of SWAPO was even televised by the
Namibian Broadcasting Corporation wherein the fourth respondent invites the
Ombuku Community to join him. I can make a copy of this video clip available,
should any of the parties here require it. It is also available from the Namibian
Broadcasting Corporation.
44.

36
107.

After Mr Maongo reported the incident back to the other councillors,

including myself, and a community meeting was calledin relation to the fourth
respondents refusal to engage with the community, the chief did not again engage
anyone outside of his own homestead other than his newly appointed councillors.

108.

There was a lot of anxiety in the community as a result of these

developments. Six of us were not councillors any more for the fourth respondent.
After his sudden about-turn on the dam issue, his constant refusal to engage with us
as senior councillors or the community, the councillors and the elders agreed to call
for a public meeting to deal with this matter. There was definitely a leadership crisis
and we were a people without a head and the fourth respondent was a head without
people.

109.

Many peoplePeople travelled from all of the regions and also leaders of

other communities attendedregions and the meeting took place on the 13th of
September 2015 at Okanguati......... T The main issues on the to be discussed was
the 5th agenda were regarding the fourth respondents Respondents refusal to
engage with and inform the community about what was going on; why he
appointed new councillors without the community consent and why he was
announcing that he would support the proposed dam building project on the Cunene
at Baynes Mountains.
speak to the community.

45. During that time, the 5th Respondent announced that he had joined the ruling
SWAPO party and that he intends to support the Governments initiative to build the

37
dam in the Baynes Mountain. This event was later televised by the Namibian
Broadcasting Corporation and published in various newspapers wherein the ruling
party had a ceremony to welcome the 5th Respondent into its fold and recognising
him as Chief. A copy of the television broadcast recorded on a disc is annexed
hereto marked ..... I pause to note that during the last part of that recording, the 5 th
Respondent himself admits that the community is not in support of his
decision to join Swapo, but calls on them to join him.

110.

46. Soon thereafter, and on or about the 3rd of March 2014 a community

meeting was held in Okanguati. There were 625 people present at this meeting,
including dignitaries from other traditional communities.

and tAfter carefully

debating and considering the circumstances and issues,he the community

members present elected to unanimously resolved that the fourth respondent was
incapable of being the chief. He had abandoned his people. I was then elected at
that same meeting to be the remove the 5th Respondent as their Chief,
unanimously, and subsequently appointed/elected me as the new Chief in
accordance with our customary laws and practices of our people by an
overwhelming majority of the community present at that meeting..

111.

47. After that meetingOn or about the ...... I applied for formal recognition

as Chief in terms of the Traditional Authorities Act. I attach hereto and marked
as annexure .... a copy of my applicationI was aware of the fact that this government
had constantly refused to recognise the fourth respondent as chief so I had little faith
that my application would be entertained properly. To date I have had no feedback
regarding the application. It has been ignored. .

38

48. I respectfully refer the Court to section 8(2) of the Traditional Authorities Act
which stipulates that if, by reason of removal from office as contemplated in
subsection (1) or death, a chief or head of a traditional community ceases to
perform the functions of his or her office, the members of that traditional
community, who are authorised thereto by customary law, may designate in
accordance with this Act a member of that traditional community to replace
such chief or head. (Underlining added)

Reasons for this application

48. 112.

Then Doveruring a few days in January 20165 some people in a

black Mercedes Bbenz sedan motor vehicle bearing the green GRN number
plates of the government with a Government number plate was seen driving around
theappeared at the Epupa village. Even its windows were made black so as to hide
the people inside. and as I was informed, went to the 5th Respondents house as
well.

113.

Later the same vehicle had been reported by community members as being

seeing at the fourth respondents homestead. I do not know who these people
were but easily guessed they had something to do with the government. I was
unfortunately no longer privy to the dealings between the fourth respondent and his
new stakeholders..

39
114.

49. ISubsequently was advised by Mr Maongo Hembinda told me that that

the 5th Respondent had allegedly made another application to be recognised as

the Chief our people, despite the fact that he was properly dismissed and
removed as the head of the community according to our customary laws and
practices. I have not seen this application and request that the first respondent
provide a copy of it. The community and I did not have any input regarding this
application.

115.

In February 2015 50. Mmy councillors and I immediately sent a letter that

we had compiled and had written for us to send to the Governor of the Regional
Council of the Kunene Region in response to this news.We delivered it on the 3rd
of March. We also sent it to the chairperson of the Council of Traditional Leaders,
the office of the Ombudsman and the predecessor of the first respondent. The
letter is annexed hereto marked marked
MK-3
.....
116.

Then still during March,

51. Some time later, I was informed by Mr Maongo that the Government intends
towas having hold an inauguration for the 5th Respondent at his house. I, as the
rightful Chief of the Ombuku-Epupa community was not informed of this
development, nor were any of my councillors informed of this so-called
inauguration. We were not invited to the inauguration and therefore I cannot
describe what exactly happened at that event although I know that the event
took place in March 2016.

40

117.

Not long after the inauguration was reported to have taken plac it was

probably in April 2015, I was given a copy of a letter authored by the first respondent
which I have annexed hereto as MK-1 in which she approves the designation of
the chief.
52. After the so called inauguration, and much to my surprise, I received a letter
from the office of the 2nd Respondent. I annex it hereto marked ....., the content
of which is self explanatory.
118.
53. The letter clearly indicates that Government, through the decision making
process had decided that the 5th fourth Rrespondent is the designated and
statutorily recognised Chief of the Ombuku Tradtiaonal Community..

Basis for Adminstrative review

119.

54. The 5th fourth Rrespondent was subsequently recognised by

Government as the Acting Chief despite the following facts:

119.1
54.1 he was not is not the legitimate the chief (or acring chief) of the Ombuku
traditional community; in terms of the customary law and practice of the Himba
(Ombuku) traditional community;
119.2

41
There was no due consideration of the customary laws and norms that

regulate

the succession of leadership in the Ombuku community in that:

119.2.1

The elders were not consulted;

119.2.2

The councillors were not consulted;

119.2.3

54.2 the community was not properly consulted;

119.2.4

54.3 tthere was no community participation in the appointment of the 5th fourth
Respondent;
119.2.5

there was no regard given to the fact that I am the legitimately

appointed chief of the Ombuku Community supported by my
legitimately appointed councillors;

119.2.6
54.4 there is no royal house in terms of which succession is automatic;
119.2.7
54.5 there is little support for the fourth 5th Respondent to be theas the chief
chief of the Himba (Ombuku) community by the community.

120.

(This is not to say that the community has shunned him as a person. The

community respects the fourth respondent and cares for the fourth respondents
wellbeing. The community and neighbours simply do not regard him as the chief of
the Ombuku community. He undoubtedly remains as a senior councillor on the
chiefs council.) largely caused by him distancing himself from the community and
refusing to engage with the community, thereby singlehandedly determining what is
in the best interests of the community pertaining to their land, livelihoods and culture.

42

121. Accordingly I aver that:

55. The administrative functionariesFirst respondent cited herein have has failed to
properly apply hertheir minds to thise matter and has ;

56. They have failed to consider relevant information at hertheir disposal;

122.

57. The decision to statutorily recognise the 5th fourth Respondent as

Chief of the Ombuku traditional community contravenes the provisions

contained in Article 18 of the Constitution of Namibia in that the principle of
audi alteran partem should have been observed by all the decision-makers
who authorised and/or recommended and/or approved the statutory
appointment of the 5th fourth Rrespondent as Chief of the Ombuku traditional
community and of the Kapika Traditional Authority;

123.

58. The administrative functionariesthe office of the first respondent hasve

misused its statutorytheir powers of administrative action taken under

legislation by not considering whether or not the decision is in the interest of
the community as a whole;

124.

the office of the first respondent has misused its statutory powers under the

Act to achieve an ulterior purpose; ;

43
59.125.

The administrative action is not rationally connected to

information before the administrators;

60.126.

The administrative functionariesoffice of the first Respondent failed to

consult with the community as required to in terms Sections 4, 5 and 6 of the

Traditional Authorities Act;

61.127.

The denial of applicants right to be heard and failure to consider

the customary laws and practices of the Ombuku traditional community

constitutes procedural unfairness;

62.128.

The decision of the administrators is irrational and violates the

principle of legality and the rule of law;

63.129.

The decision was influenced by material mistakes of fact which

results in unlawfulness and is contrary to the principle of lawfulness;

64.130. The decision was materially influenced by errors of law;

65131. The administrators first respondenthave has failed to properly apply their
her mind to the matter and to take proper account of relevant considerations;

66.132. The administrators first respondent had regard to irrelevant

considerations;

44

67134.. The decision is accordingly unreasonable;

68135.. The decision was taken arbitrarily;

136.

The decision was made male fide, alternatively to fulfil a purpose other than
that prescribed by the act.

137.

The decision was induced by misrepresentation.

69138. The decision is unconstitutional and unlawful.

139. The decision is a nullity in that the Act does not confer the power on the first
respondent to approve or designate or appoint or otherwise recognise for the
purposes of the Act an acting chief.

70140. For the reasons stated above, I pray for an order as set out in the notice
of motion to which this affidavit is attached.

____________________
DEPONENT

45
I hereby declare that the deponent has sworn to and signed this statement in
my presence at

OPUWO

on the

28th

day of

SEPTEMBER

2016 and he declared as follows: that the facts contained fall within his
personal knowledge and that he understands the contents hereof, that he has
no objection to taking the oath, that he regards the oath as binding in his
conscience and has declared as follows:

I swear that the contents of this Sworn Affidavit are true and correct, so help
me God.

_______________________
COMMISSIONER OF OATHS
FULL NAMES:
CAPACITY:
ADDRESS: