Three judges of the Supreme Court of Namibia dismissed an appeal brought by disgruntled members of the Witbooi clan on the designation of Salomon Witbooi as chief of the Witbooi Traditional Authority.

Acting Judge of Appeal Rita Makarau, in concurrence with Deputy Chief Justice Petrus Damaseb and Judge of Appeal Dave Smuts, referred the dispute back to the clan to solve it in line with the directives given by the former minister of urban and rural development, Sophia Shaningwa in 2017. Judge Makarau, who wrote the unanimous judgment, said that once an investigating committee made recommendations to the minister, the minister is obliged to consider those recommendations and decide on how to resolve the dispute expediently. 

Due to the divisions within the Witbooi clan, Makarau said, the dispute resolution procedure and mechanism was duly triggered.  “The investigating committee that was set up made recommendations to the minister in due course and after considering the recommendations, the minister decided on how to resolve the dispute and issued certain directives in that regard,” she said.

According to Makarau, the directives of the minister should have been adhered to and the courts had no business interfering in the minister’s decision, and it is an official decision. 

She further said it does not matter that the parties continued to engage after the executive decision of the minister as it was oblivious to the doctrine of functus officio. Accordingly, she said, they have no import at law and cannot confer or create any legal rights, entitlements and/or obligations. 

The judge went on to say that the constitutionality of the minister’s decision was determined by the High Court and subsequently not in the appeal as it was quite capable of resolution simply on the application of administrative law, without invoking the provisions of the constitution. 

Judge Makarau ordered that the dispute should be resolved in accordance with the directives given by Shaningwa in 2017 and should the members of the Witbooi Royal House fail to agree on one candidate, the community must elect the next Kaptein of the clan. 

She ordered costs against the applicants on the scale of one instructing and two instructed counsel. The matter comes after the High Court declined to determine whether the designation of Hendrik Ismael Witbooi as chief by the government was legal. Former Namibian High Commissioner to Zambia, Salomon Josephat Witbooi, challenged the government’s decision to designate his cousin Ismael as Kaptein of the Witbooi community.

Then minister of Urban and Rural Development Peya Mushelenga designated Ismael as leader of the Witbooi community on 22 May 2019 and subsequently gazetted by order of the President on 15 August 2019. 

Salomon, who is claiming to be the rightful leader of the Witbooi community, wanted the court to review and set aside the government’s decision. 

In his application, Salomon is supported by fellow royal house members Anna Jacobs, who is his mother, Elizabeth Kock and Christina Fredricks, and the spokesperson of the Witbooi royal family, Penias Topnaar. 

Salomon and Ismael are cousins, and they are both nephews of the late Kaptein Hendrik Witbooi, who was at the helm of the Witbooi community from 1978 until he died in 2009. 

Salomon was represented by Elize Angula and Ismael by Richard Tötemeyer. 

- rrouth@nepc.com.na