Supreme Court puts Tswana squabbles to bed

Windhoek-The Supreme Court has at last hammered the final nail into the long-running squabbles of the Itireleng Village Community over ownership of community assets when three Justices of Appeal dismissed an appeal by the Council of the community and Headman Augustinus Bebeng Modisa against an earlier judgment by the Windhoek High Court that they have no authority to bring the application.

The Itireleng Community is a close-knit group of people that has usufruct on a piece of land belonging to the Roman Catholic Church at Epikuro in the Gobabis District. The Church bought the land in 1903 to look after the members that lived there at the time and in 1983 entered into a lease agreement with the community which lapsed in 2003. However, the community formed an association in 1983 with a constitution regularising the position of the community.

The council is to comprise 15 elected members, one of which should be the headman who chairs the council, an under chairperson, a secretary, two treasurers and nine ordinary members.

When the lease agreement lapsed, the church granted the community rights of use and habitat on the land.

The constitution of the community dictated that every three years an election will be held to elect a council to administer the affairs of the community.

However, the constitution does not make provision that the councillor of the community appointed by the State should automatically be the headman of the community, but such headman must be elected.

Modisa and his council was elected in 2004, but in 2005 allegations of theft surfaced and the council was suspended and an interim council consisting of Felix Madi, Bernhard Langman, Genovefa Mokaleng, Euphorsine Mbuende, Victus Eduard and Reinhard Morwe as well as Cynthia Madi, Hedwid Tibinyane, Michael Kapeng, Lazarus Sebetwane, Jasper Madi, Cyprianus Pogisho, Maria Thekwane, Theodor Tshabang and Pio Mosala was appointed. Other members of the interim committee comprised of Anna Mokaleng, Augustinus Mokaleng, Oswald Tibinyane, Arnold Morwe, Alexis Udigeng, Berlindis Udigeng, Rileu Kene, Joseph Arnat, Ingrid Mokwena, Appolina Tbinyane, Hans Kediamogetse Makgone and Herbertha Bontleeng Tibiyane.

Investigations into the theft allegations, however, found no proof theft or wrongdoing against the suspended council and they were reinstated in 22 November 2008, but the members of the interim committee did not vacate their positions and a hiatus developed, which remained unresolved. On the one hand, former members claimed that the interim committee refused to hand over the assets of the community and irregular withdrawals from the community's bank account as well as unauthorised sale of livestock belonging to the community.

The interim committee, on the other hand, claimed that the community never wanted the suspended council to be reinstated and they continued to administer the community's affairs until a disputed election in 2010 confirmed them as the new council as well as a subsequent election in 2013.

This resulted in an application to remove the newly elected council by the suspended members in the High Court and Deputy Judge President Hosea Angula struck the matter from the roll for lack of locus standi on the part of the applicants, the former council and Modisa.

According to the judge president, the association as established is a legal entity and neither Modisa nor the former council has any authority to act on its behalf.

The former council and Modisa approached the Supreme Court to set aside the decision of the High Court, but Judge of Appeal, Dave Smuts, in agreement with Deputy Chief Justice Petrus Damaseb and Acting Judge of Appeal, Theo Frank upheld the High Court decision and stressed that Angula has dismissed the application and not struck it from the roll as both applicants, the council and the purported Headman lacked the locus standi (authority) to act on behalf of the community.

Source: New Era Newspaper Namibia