Kaune v Registrar of Deeds (I3124-2012) [2016] NAHCMD 241 (22 August 2016)

PREPUBLIC OF NAMIBIA

REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO.: I 3124 /2012

In the matter between:

ISSASKAR KAUNE PLAINTIFF

and

REGISTRAR OF DEEDS AND 27 OTHERS DEFENDANTS

Neutral citation:Kaune v Registrar of Deeds (I3124-2012) [2016] NAHCMD 241 (22 August 2016)

Coram:UEITELE, J

Heard:09, 10. 11, 12, 13 November 2015, 28 January 2016, 23 February 2016, 01, 02 & 23 March 2016.

Delivered:22 August 2016

Flynote:Practice-Trial - Absolution from the instance at close of plaintiff's case-farmer who progressed to become a commercial farmer, died without leaving a will. His estate included, livestock, cash, immovable property and motor vehicles.

Summary:On 30 June 1988 Mr. Phillipus Kaune, a communal farmer who progressed to become a commercial farmer, died without leaving a will. His estate included livestock, cash, immovable property and motor vehicles. The late Kaune was survived by his widow, and twenty four children. One of his sons is the plaintiff in this matter. The plaintiff instituted action in this court in which he sought: (a) an order declaring that he (i.e. the plaintiff) is, in terms of the Otjiherero customary law, alternatively Otjiherero custom the lawful heir to Farm Uithou (b), declaring that the appointment of Petrus Van Straten, on 12 August 2010, as the executor in the Estate of the late Kaune as invalid: (c) an order authorizing and directing the Registrar of Deeds to, in accordance with the Deeds Registries Act, 1937, register Farm Uithou in the name of the plaintiff; and (d) cost of the action.

Held that because the plaintiff relies on a statement or a wish allegedly expressed by his late father that he is to inherit the Farm the onus is on the plaintiff to, at the trial, prove that his late father made the statement or expressed the wish that he, the plaintiff is to inherit the Farm if the father predeceases the plaintiff. The second fact which the plaintiff must prove is that he did in accordance with Otjiherero Customarily law alternatively Otjiherero custom and tradition inherit the Farm.

Held further that at the stage of an application for absolution, the plaintiff, as in the present circumstances need not show that as a fact or that on the balance of probabilities, the Court will find that his father, the late Kaune, made the statement or expressed the wish that on his death the plaintiff must inherit the Farm. All the plaintiff has to do is to show that there is sufficient admissible evidence which shows that a reasonable Court might find that the late Kaune made the statement or expressed the wish that if he, the late Kaune, predeceases the plaintiff the plaintiff must inherit the Farm.

Held that there is no admissible evidence before court that the late Kaune made the statement or expressed the wish that if he, the late Kaune, predeceases the plaintiff the plaintiff must inherit the Farm and that plaintiff did not place a single piece of evidence before court as to what the practice in Otjiherero custom or what the Otjiherero customary law in respect of inheritance or success is.

Held further that the plaintiff did not put any shred of evidence before court as to how, in the Otjiherero custom and tradition, ownership in respect of the immovable property passes from one person to another;

Held furthermore that the appointment of Mr van Straten is a valid administrative act performed by the Master.

Held further that no reasonable court could or might give judgment in plaintiffs favour and the defendants are therefore absolved from the instance.

ORDER

1 The defendants are absolved from the instance.

2The plaintiff must pay the costs incurred by the defendants, such cost to include the costs:

(a)In respect of the 4th -19th, 21st -23rd and 26th defendants. The cost, of one instructing and one instructed counsel.

(b)In respect of the 27th and 28th defendants the costs of one instructing and two instructed counsels.

JUDGMENT

UEITELE, J:

Introduction and background.

[1]This case, concerns the administration of a deceased estate. On 30 June 1988 Mr. Phillipus Kaune (I will in this judgment refer to him as the late Kaune) a communal farmer who progressed to become a commercial farmer, died without leaving a will. His estate included, livestock, cash, immovable property and motor vehicles. The late Kaune was survived by his widow, and twenty four children. One of his sons is the applicant in this matter.

[2]At the time of the death of the late Kaune two pieces of legislation governed intestate succession in Namibia namely the Native Administration Proclamation, 1928[footnoteRef:1] (I will, in this judgment refer to this piece of legislation as the Proclamation) and the Intestate Succession Ordinance, 1946.[footnoteRef:2] (I will, in this judgment refer to this piece of legislation as the Intestate Succession Ordinance). [1: Proclamation No 15 of 1928.] [2: Ordinance No. 12 of 1946.]

[3]The significance of these two pieces of legislation lies in s18 of the Proclamation and section 1 of the Intestate Succession Ordinance. In terms of s 18(2) of the Proclamation the estate of a native would be administered and distributed according to native law and custom. That subsection reads as follows:

(2)All other property of whatsoever kind belonging to a Native shall be capable of being devised by will. Any such property not so devised shall devolve and be administered according to native law and custom.

[4]In terms section 1 of the Intestate Succession Ordinance, 1946 the surviving spouse of a person (other than a black person or coloured or Rehoboth Baster) is the sole intestate heir if no descendants, parents, brothers or sisters survive the deceased spouse.[footnoteRef:3] If the spouses are married in community of property and the deceased spouse is survived by descendants, the surviving spouse inherits a childs share or an amount which together with the surviving spouses share in the joint estate does not exceed N$50 000.[footnoteRef:4] If the spouses are married out of community of property and the deceased spouse is survived by descendants, the surviving spouse inherits a childs share or an amount not exceeding N$50 000.[footnoteRef:5] Irrespective of the marital property regime, if the deceased spouse is not survived by any descendants but leaves parents, brothers or sisters, the surviving spouse inherits a half share provided that the half share does not exceed N$50000.[footnoteRef:6] [3: Section 1(1)(d) of Ordinance 12 of 1946. ] [4: Section 1(1)(a) of Ordinance 12 of 1946. ] [5: Section 1(1)(b) of Ordinance 12 of 1946. ] [6: Section 1(1)(c) of Ordinance 12 of 1946. ]

[5]In addition to determining who is eligible to inherit the property of a deceased person the Intestate Succession Ordinance, provides that when a white person dies without leaving a will the administration of his or her estate is supervised by the Master of the High Court (I will, in this judgment, refer to her as the Master). The Proclamation provides that when a black person dies intestate, the administration of his or her estate is supervised by the magistrate of the district in which the deceased resided at the time of his or her death.

[6]From the evidence that was placed before me it appears that in pursuance of the Proclamation the Magistrate for the District of Gobabis, during December 1988, appointed a certain Mr Alfred Tjaimba as executor of the Estate of the late Kaune. During March 1989 the Magistrate for the District of Gobabis further appointed Erwin Kaune as an Executor in the estate of the late Kaune. Between 1988 and 1991 the movable assets of the late Kaune were distributed amongst his children and family members. The immovable property which the late Kaune owned was a Farm known as the Remaining Portion of the Farm Uithou No. 366 situated in the District of Gobabis, Omaheke Region (I will in this judgment refer to this property as Farm). This Farm is still registered in the name of the late Kaune and is the subject matter of the dispute between the children of the late Kaune.

[7]On 21 March 1990 Namibia became an independent sovereign State where the Constitution became the Supreme law of the Country. The Constitution of Namibia founded a democratic State, founded amongst other things on the rule of law and guaranteed certain fundamental rights to all who live in Namibia. One of the fundamental rights guaranteed is the equality of all persons before the law.

[8]In the matter of Berendt and Another v Stuurman and Others[footnoteRef:7] this court held that sections 18(1), 18(2) and 18(9) of the Proclamation and the regulations made under s 18(9) were in conflict with the Constitution of Namibia and were accordingly set aside, because they were discriminatory in operation. Following the setting aside of section 18 of the Proclamation, Parliament, during December 2005, enacted the Estates and Succession Amendment Act, 2005.[footnoteRef:8] That Act, in s 3 (3), empowers the Master to, at the request of any interested party, supervise the administration of the estate of a black person who had died prior to December 2005. [7: 2003 NR 81 (HC).] [8: Act No. 15 of 2005. ]

[9]During the course of the year 2010 some of the children of the late Kaune applied to the Master for her to appoint an executor in the estate of their late father. On 12 August 2010 the Master appointed the twenty seventh defendant, Mr. Alwyn Petrus Van Straten, as the executor in the Estate of the late Kaune. Two years (that is during October 2012) after Mr. Van Straten was appointed as executor in the Estate of the late Kaune the plaintiff instituted this action in which he claims the following relief:

(a) An order declaring that he (i.e. the plaintiff) is, in terms of the Otjiherero Customary law, alternatively Otjiherero custom, the lawful heir to the Farm.

(b) An order declaring the appointment of Mr. Alwyn Petrus Van Straten as the executor in the Estate of the late Kaune as invalid.

(c) An order authorizing and directing the Registrar of Deeds to, in accordance with the Deeds Registries Act, 1937, register the Farm in the name of the plaintiff.

(d) Cost of the action.

[10]After the parties exchanged pleadings the dispute proceeded to trial. I heard evidence, on behalf of the plaintiff over seven days (that is from 09 November 2015 to 13 November 2015 and again from 01 to 02 March 2016). On 23 March 2016 the plaintiff indicated that he was closing his case. When the plaintiff closed his case the defendants moved an application for absolution from the instance. With the above introduction and background, I will now proceed and briefly discuss the principles applicable to applications for absolution from the instance and thereafter set out the allegations made by the protagonist in their pleadings, and will thereafter briefly set out the evidence led by the plaintiff. After I have briefly restated the evidence I will consider whether or not the court may grant absolution at the close of the plaintiff's case.

The test for absolution at the close of plaintiffs case.

[11]The counsels who appeared for the plaintiff and the defendants agreed as to the test to be applied. The test on absolution is trite and was formulated in the now well-known case of Claude Neon Lights (SA) Ltd v Daniel[footnoteRef:9] by Miller, A.J.A as follows: [9: 1976 (4) SA 403 (A) at 409G H D.]

' when absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.[footnoteRef:10] [10: The formulation of test in this fashion was approved by the Supreme Court in the matter of Stier and Another v Henke 2012 (1) NR 370 (SC) at 373.]

[12]In the matter of Gordon Lloyd Page & Associates v Rivera and Another[footnoteRef:11] Harms JA, after restating the formulation of the test, went on to explain, at 92H, that: [11: 2001 (1) SA 88 (SCA).]

'This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G 38A.

[13]In the matter of Aluminium City CC v Scandia Kitchens & Joinery (Pty) Ltd[footnoteRef:12] Silungwe AJ said: [12: 2007 (2) NR 494 (HC) at 496E.]

It is often said that, in order to escape absolution from the instance, a plaintiff has to make out a prima facie case in that it is on prima facie evidence - which is sometimes reckoned as evidence requiring an answer (Alli v De Lira 1973 (4) SA 635 (T) at 638B - F) - that a court could or might decide in favour of the plaintiff. However, the requisite standard is less stringent than that of a prima facie case requiring an answer. Prima facie evidence does not necessarily have to call for an answer, it is sufficient for such evidence to at least have the potential for a finding in favour of the plaintiff.

[14]The authors Schwikkard & Van der Merwe[footnoteRef:13] argue that a prima facie case is made out when there is evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff. In order for a prima facie case to exist there must be evidence in respect of each essential element of the claim on which a court would find in favour of a party if it believed the evidence to be true In the matter of Bidoli v Ellistron Truck & Plant[footnoteRef:14], Levy AJ stated that the phrase 'applying its mind reasonably' requires the Court not to consider the evidence in vacuo but to consider the admissible evidence in relation to the pleadings and in relation to the requirements of the law applicable to the particular case. I will now proceed and consider the pleadings. [13: In their book: Principles of Evidence. 3rd ed at p 578.] [14: 2002 NR 451 (HC) at 453.]

Pleadings

[15]In his amended particulars of claim the plaintiff amongst other things alleges that on 10 April 1985 the late Phillippus Kaune summoned his children namely Willemina Kaune, Jogbeth Kamuhanga Kaune, Godfriedine Kaune Kambatuku, Victor Kaune and him to a place called Otjoruharui in the Aminius Constituency where he informed them that he had decided that if he predeceased the plaintiff, the plaintiff would inherit the Farm. He further pleaded that during July 1988 the executors (consisting of Erwin Kaune, Alfred Tjaimba, Lazarus Handura, Sephania Gertzen and Marindi Kaukumangera all of whom, except Marindi Kaukumangera, have passed on) of the estate of the late Kaune were appointed under Otjiherero customary law.

[16]In the particulars of claim the plaintiff further alleges that towards the end of July or at the beginning of August 1988 and at Otjoruharui in the Aminius Constituency, the executors (whom I mentioned above in paragraph 15) of the late Kaunes estate met and distributed his estate to the heirs in terms of Otjiherero customary law and that as a consequence of such distribution and in terms of the late Kaunes expressed wish communicated on 10 April 1985, the Farm was lawfully inherited by the plaintiff in terms of Otjiherero Customary law, alternatively in terms of Otjiherero custom and tradition. He further alleges that some of his siblings who are amongst the third to the twenty fourth defendants are now disputing that he lawfully inherited the Farm.

[17]He further states, in his particulars of claim, that on 12 August 2010 the Master appointed Mr. Van Straten (the twenty seventh defendant) as an executor of the Estate of the late Kaune. He contends that at the time that the twenty seventh defendant was appointed the estate of the late Kaune had already devolved to the lawful heirs and as such there was no estate to be distributed. He thus contended that the appointment of Van Straten as executor was of no force or effect.

[18]After requesting further particulars to the plaintiffs particulars of claim and after being provided with the further particulars the defendants pleaded to the plaintiffs particulars of claim. The essence of the defendants plea is that the defendants deny that the plaintiff lawfully inherited the Farm. In amplification of the denial that the plaintiff inherited the Farm the defendants pleaded that no meeting as alleged by the plaintiff was held on 10 April 1985, they pleaded that the meeting referred to in paragraph 33 of the plaintiffs particulars of claim was held on 10 April 1981 and that the plaintiff was not present at that meeting. They furthermore pleaded that at the meeting the late Kaune never stated that if he predeceased the plaintiff the plaintiff should inherit the Farm. They pleaded that the plaintiff said that The Farm is for all my children.

[19]The defendants pleaded in the alternative that if this court were to find that a meeting was held on 10 April 1985 and that the late Kaune made the statement as alleged by plaintiff then and in such event the defendants plead that such statement cannot in law constitute a valid testamentary bequest, more particularly in that:

(a)Customary law did not know and still does not know the concept of individual ownership of immovable property as registered in the Deeds Office or otherwise, and therefore the phrase shall devolve and be administered according to native law and custom, contained in s 18(2) of the Native Administration Proclamation No. 14 of 1928, does not find application to the immovable property registered in the name of the late Kaune.

(b)In as much as the alleged statement purports to amount to a testamentary disposition it does to comply with the provisions of section 2 of the Wills Act, 1953 (Act 7 of 1953) for a valid testamentary disposition and is invalid.

[20]The defendants, in their plea, admitted that in terms of section 18(2) of the Proclamation as read with section 2 of the Estates and Succession Act, the estate of the late Kaune was to devolve and be administered according to Otjiherero Customary law and custom but deny that they elected or, alternatively accepted that such estate had to devolve or devolved as alleged by the plaintiff. In amplification of the denial the defendants pleaded that, the livestock and other personal belongings of the late Kaune were distributed according to Otjiherero Customary law alternatively Otjiherero custom and tradition and that the Farm was never awarded or dealt with in terms of Otjiherero Customary law alternatively Otjiherero custom and tradition.

[21]The defendants furthermore admitted that on 15 December 1988 and at Gobabis, the Magistrate for the District of Gobabis appointed Erwin Kaune and Alfred Tjaimba in terms of the provisions of Section 2(A) and (3) of Government Notice 70 of 1954 as executors of the estate of the late Kaune and that Erwin Kaune, Alfred Tjaimba, Lazarus Handura, Zephania Gertzen subsequently passed away. Subsequent to the passing away of Erwin Kaune and Alfred Tjaimba, the Master, on 12 August 2010 duly appointed Alwyn Petrus Van Straten as executor of the estate of the late Kaune as contemplated by Section 3(3) of the Estate and Succession Amendment Act, 2005.

[22]Having briefly set out the essence of the pleadings I now turn to consider the evidence tendered by and on behalf of the plaintiff.

The Evidence

[23]I will at the outset state that the plaintiff and his two witnesses took seven days to testify. The evidence which I will summarize below is not an extensive restatement or summary of the evidence tendered at the trial, but a very brief summary of the evidence pertaining to the crux of the dispute between the parties. The first witness to testify on behalf of the plaintiff was the plaintiff himself.

[24]The plaintiff testified that his late father, Phillipus Kaune, on 4 September 1979 purchased the Farm and that the Farm was registered in the name of the late Kaune on 03 March 1980 and the Farm is still so registered in the late Kaunes name. On 10 April 1982 the late Kaune summoned him and his other siblings, namely Willemina Kaune, Jogbeth Kamuhanga Kaune, Godfriedine Kaune Kambatuku and Victor Kaune to a place called Otjoruharui in the Aminius Constituency where he informed all of them that he (the late Kaune) had decided that the plaintiff would inherit the Farm if he predeceased the plaintiff. The verbatim testimony, on this aspect, of the plaintiff was as follows:

it was at this meeting of 1985 [he corrected the evidence to say the meeting took place during 1982] that my late father stated in no uncertain terms that upon his death I, Issaskar Kaune, was to inherit Farm Uithou. He made no mention of any other assets and as to what would happen to them upon his death. The only thing that he mentioned at this meeting was that I was to inherit the farm. That was his wish and he told all his children that were at this meeting that they had to do everything possible to ensure that his wish be carried into effect.

[25]He proceeded and testified that his father passed away on the 30th of June 1988 and that his fathers entire estate subsequently devolved in accordance with Otjiherero Customary law. After his fathers death his fathers estate was distributed according to Otjiherero custom and tradition. He testified that the livestock was distributed during October 1990 two days apart. The cattle at the traditional homestead (i.e. at Otjoruharui) were the first to be distributed and a day after those cattle were distributed the cattle at the Farm were then distributed. He occupied the Farm for a period of around 25 years as an owner of the Farm. The verbatim testimony of the plaintiff in this regard was as follows:

as I have already stated I inherited Farm Uithou according to Herero customary law and tradition. I was given the farm by my late father. He clearly expressed his wish for me to inherit the farm prior to his death. Upon his death I then inherited the farm. There was no protest by any of my late fathers heirs that is the reason why from 1988 to 2007 there was no protest by any of my brothers, sisters or other heirs in respect of the farm. I also highlight that even at the time when all the assets of my late fathers estate were inherited by his heirs none of the heirs sought to inherit the farm. I inherited the farm according to Herero customary law and tradition and this was confirmed by the family, elders who oversaw the distribution of my fathers estate according to Herero customary law and tradition.

[26]In cross examination the plaintiff was asked what exactly his father allegedly said to him during the meeting of 1982. I find it appropriate to reproduce verbatim the questions to the plaintiff and the answer provided by the plaintiff.

MR HEATHCOTE:during 1982 you said you had a meeting where your father was present ?

ANSWER: Yes my Lord.

MR HEATHCOTE:what words did he use?

ANSWER:He said I am now old and he is having a farm and he should give the farm to someone who will which farm become the property of that someone and who will then take further the farming activities

MR HEATHCOTE: I want you to repeat ... I want to get the exact wording.

ANSWER:...he said the farm should be given to me so that I will proceed with the farming activities.

MR HEATHCOTE: Yes, try again, what were the words that your father used?

ANSWER:Call together Witnesses at Otjivemoro Farming to tell them regarding the issue of the farm because he is now old or of age that one day when he is no more the farm should be given to me.

MR HEATHCOTE: One day when he is no more the farm should be given to you?

ANSWER:Yes My Lord.

MR HEATHCOTE: did your father speak Otjiherero on that day?

ANSWER: Yes he spoke Otjiherero My Lord.

MR HEATHCOTE:Is there a difference in Otjiherero language in using the word inherit or I give to you?

ANSWER:It is when you give inheritance Mekupe.

MR HEATHCOTE: what is the word give in Otjiherero, I give to you? ... ---

ANSWER:Mekupe

MR HEATHCOTE:Okay we have got that and what is the word you inherit from me in Otjiherero?

ANSWER:Okurumata eta.

MR SCHICKERLING:I am going to ask you one more time, at the meeting on 10 April 1981, what were your fathers words? --

ANSWER:He said he is old and he is sick and he is having this farm that he obtained lawfully and somebody must take over the day he is no more and that person is Issaskar Kaune. And that is why I invited you here so that you can hear this in this meeting the day I am no more.

MR SCHICKERLING:In the whole of your testimony you referred to these words, give take over, manage and inherit.

ANSWER:I was told my Lord when it was given to me and I inherited it at the time of the distribution when I was made to inherit it by those who were the executors distributing the estate.

MR SCHICKERLING:Did you not just misunderstand your father?

ANSWER:Maybe that I might not dispute My Lord because I am narrow minded. My memory is short.

[27]The second witness to testify on behalf of the plaintiff was a certain Ms. Jogbeth Kamuhanga Kaune who testified that she is the sister of the plaintiff because their mothers were married to the late Kaune, her mother was the first wife of the late Kaune and the plaintiffs mother was his second wife. She testified that, on 10 April 1982, the late Kaune summoned her and her other siblings, namely Willemina Kaune, Issaskar Kaune, Godfriedine Kaune Kambatuku and Victor Kaune to a place called Otjoruharui in the Aminius Constituency. The witness later corrected herself and testified that Victor Kaune was not invited to the meeting but he nonetheless attended the meeting.

[28]She proceeded to testify that at the meeting in Otjoruharui, the late Kaune made it clear that the purpose of the meeting was for him to tell them what he had decided to do with the farm and the livestock following his death. She testified that her siblings which she mentioned attended that meeting where their father, the late Kaune, informed them that he had decided that Issaskar Kaune should inherit the farm if he passes away before Issaskar and that his animals have to be distributed fairly between his children and his maternal and paternal relatives. In that meeting, her late father did not make any wish regarding the homestead, the holy cattle and other customary holy items in the family such as the holy calabash, the holy fire, the gun, the chair and the hat. The meeting was only attended by the aforementioned children of the late Kaune and there was no one else at that meeting.

[29]She testified that following her late fathers death and burial, arrangements were made to ensure that the estate of her late father was distributed. After her fathers death her fathers estate was distributed according to Otjiherero custom and tradition. She furthermore testified that the livestock was distributed during October 1990 two days apart. The cattle at the traditional homestead (i.e. at Otjoruharui) were the first to be distributed and a day after those cattle were distributed the cattle at the Farm were then distributed. In cross-examination she testified that she was not present when the livestock which was at the Farm were distributed.

[30]The third witness to testify on behalf of the plaintiff was a certain Ms. Gottfriedine Kaune Kambatuku who testified that she is the sister and mother of the plaintiff. She is the sister to the plaintiff because their mothers were married to the late Kaune, her mother was the first wife of the late Kaune and the plaintiffs mother was his second wife. She testified that she was the mother to the plaintiff because after her mother passed on, her father married his second wife who was her half-sister (she was her mothers child but not her fathers child).

[31]This witness testified that, on 20 August 1982, the late Kaune summoned her and her other siblings, namely Willemina Kaune, Issaskar Kaune, Jogbeth Kamuhanga Kaune and Victor Kaune to a place called Otjoruharui in the Aminius Constituency. She testified that the purpose of the meeting was for him to tell them what he had decided to do with the Farm and the livestock following his death. She initially testified that at the meeting her late father informed them that Issaskar Kaune should inherit the Farm if he passed away before Issaskar and that his animals have to be distributed fairly and equally between his children and his maternal and paternal relatives. She corrected herself and testified that at the meeting her father told them that he called them to inform them that he had given the Farm to Issaskar. I will quote verbatim what she said;

My Lord the day our father called us to the meeting he informed us that my children I called you here today I am sick and I have become of age and I am here to inform you today that I have given this farm and not that I will give it, but that I have given this farm to Issaskar Kaune, and I have called you here so that you should know and hear from me and not only after my death but directly from me that I have given the farm to Issaskar. Now with regard to the holy cattle, the holy calabash, the firearm or the gun, and the holy fire and all the other items My Lord were not given to anybody but it was only distributed during the estate or given during the distribution of the estate.

[32]During her testimony the witness kept testifying that Issaskar inherited the farm even though she had corrected herself and testified that her father called them to tell them that he had given the Farm to the plaintiff. Because of this uncertainty I paused and asked her to clarify to me what her father actually said to them. The exchange between the court and this witness was as follows:

COURT:Do I hear you correct Ms. Kambatuku you are saying at the meeting which you allege was on 20 August 1982 your father did not speak about a wish he spoke about what he did?

ANSWER:That is correct my Lord.

COURT:You were also saying he did not mention anything about any inheritance?

ANSWER:He did not mention anything as to who should inherit to what extent he only mentioned the giving.

[33]During cross examination she was again asked about what her father said at the meeting which she alleged took place on 20 August 1982 she was steadfast that the purpose of the meeting was for her father to tell them what he has done with the Farm. She insisted that her late father (the late Kaune) called them to inform them that he has given the farm to Issaskar Kaune and for them to hear that he has given the Farm to Issaskar.

[34]The above was the crux of the plaintiffs testimony. I will therefore proceed to consider whether the plaintiff has placed admissible evidence before court to ward off an application for absolution.

Should absolution be granted or refused.

[35]It is clear from the particulars of claim, that plaintiff relies on a statement or a wish allegedly made or expressed by his father that entitles him to, in accordance with Otjiherero Customary law alternatively Otjiherero custom and tradition claim that he acquired ownership of the Farm. In either event at a trial, plaintiff must prove that his late father made the statement or expressed the wish that he, the plaintiff is to inherit the Farm if the father predeceases the plaintiff. The second fact which the plaintiff must prove is that he did in accordance with Otjiherero Customary law alternatively Otjiherero custom and tradition inherit the Farm. The onus is on the plaintiff.

[36]At this stage in an application for absolution, the plaintiff, as in the present circumstances need not show that as a fact or that on the balance of probabilities, the Court will find that his father, the late Kaune, made the statement or expressed the wish that on his death the plaintiff must inherit the Farm. All the plaintiff has to do is to show that there is sufficient admissible evidence which shows that a reasonable Court might find that the late Kaune made the statement or expressed the wish that if he, the late Kaune, predeceases the plaintiff the plaintiff must inherit the Farm. Therefore:

(a) If the evidence shows that the late Kaune did not make the statement or did not express the wish that if he, the late Kaune, predeceases the plaintiff the plaintiff must inherit the Farm. or

(b) If the plaintiff fails to lead evidence to show that the late Kaune might have made the statement or might have expressed the wish that if he, the late Kaune, predeceases the plaintiff the plaintiff must inherit the Farm then the defendant is entitled to absolution from the instance.

[37]I have above briefly summarized the evidence which the plaintiff placed before this Court. That evidence of the plaintiff apart from being riddled with internal inconsistencies and contradictions, the evidence is also in contradiction with the evidence of one his witnesses. The internal inconsistencies and contradictions that I am referring to are the evidence that:

(a) He [the late Kaune] is old and he is sick and he is having this farm that he obtained lawfully and somebody must take over the day he is no more and that person is Issaskar Kaune.

(b) Call together Witnesses at Otjivemoro Farming to tell them regarding the issue of the farm because he is now old or of age that one day when he is no more the farm should be given to me.

(c) At this meeting of 1982 that my late father stated in no uncertain terms that upon his death I, Issaskar Kaune, was to inherit Farm Uithou.

(d) The admission by the plaintiff that he made a written offer to the 27th defendant in his capacity as executor of the estate of the late Kaune, to purchase the Farm from the estate of the late Kaune for an amount of one million Namibia Dollars.

[38]Ms. Kambatuku who was called by the plaintiff came and testified that at the meeting at which her father, the late Kaune, discussed the Farm, the late Kaune did not speak about any inheritance, he summoned them to inform them what he has already done and for them to hear from him and not for them to hear it after his death. She testified that he stated that he had already given the Farm to Issaskar Kaune. This evidence clearly contradicts the evidence of both Jogbeth Kaune Kamuhanga and the plaintiff in so far as they testified that the late Kaune expressed a wish that his Farm must be inherited by the plaintiff if he, the late Kaune, predeceased the plaintiff. The reliability of the plaintiffs recollection of what his father may have said at the meeting at which the issue of the Farm was discussed, was fatally compromised by the plaintiffs admission that he was confused and may have misunderstood his father. There is, therefore, in my view no admissible evidence as regards to what the late Kaune said at the meeting with some of his children.

[39]Article 66 of the Namibian Constitution provides that both the customary law and the common law of Namibia in force on the date of Independence shall remain valid to the extent to which such customary or common law does not conflict with the Constitution or any other statutory law. It is clear that Otjiherero customary law is part of the law of our country and thus need not be proven, the Court can take judicial notice; by informing itself from history books or literature, but the same cannot be said about Otjiherero custom and tradition. In the matter Kaputuaza and Another v Executive Committee of the Administration for the Hereros and Another[footnoteRef:15] Bethune J said: [15: 1984 (4) SA 295 (SWA).]

The customs observed in the reserve (as opposed to customary law) can be proved in the same manner as any other custom, i.e. by ordinary persons who have knowledge of the nature of the customs and the period over which they have been observed. It has authoritatively been held that the party relying on such a custom must prove it beyond reasonable doubt (Van Breda and Others v Jacobs and Others 1921 AD 330 at 333).

[40]The difficulty with the plaintiffs case as regards the Otjiherero customary law or Otjiherero custom and tradition with respect to succession and inheritance is that the plaintiff did not refer me to any book or literature where the Otjiherero customary law with respect to inheritance and succession (whether testate or intestate) is outlined and I could also not find any. It thus follows that I have, in that regard, to rely on our common or statutory law.

[41]As regards Otjiherero custom and tradition relating to the inheritance of immovable property the plaintiffs witnesses spent considerable time testifying how the movable assets of the late Kaune were distributed amongst his heirs and that Issaskar Kaune inherited the Farm in accordance with Otjiherero custom and tradition. They needed to do more than that, as Bethune J said they needed to demonstrate their knowledge of the nature of the customs and the period over which they have observed that custom and tradition. The plaintiff, in my view, therefore did not place a single piece of evidence before court as to what the nature of the custom is and the period over which that custom or tradition has been observed.

[42]As regards the plaintiffs claim that there were no assets in the estate of the late Kaune and therefore the appointment of Mr. Van Straten was invalid the witness did not put any shred of evidence before court as to how, in the Otjiherero custom and tradition, ownership in respect of the immovable property passes from one person to another. I have, above, indicated that the content of what the Otjiherero customary law is was not argued before me. In our common law the position appears to be that an heir does not upon the death of a testator acquire the ownership of the assets of the deceased but merely has a vested claim against the executor for payment, delivery, or transfer of the property comprising the inheritance and his claim is only enforceable when the liquidation and distribution account has been confirmed. The heir in fact becomes owner of the immovable property only on delivery of it or of immovable property upon registration.[footnoteRef:16] The transfer of ownership in respect of immovable property is governed by the Deeds Registries Act, 1937[footnoteRef:17] , s 16 of that Act provides as follows: [16: See the case of Estate Smith v Estate Follett 1942 AD 367 at 385.] [17: Act 47 of 1937.]

16How real rights shall be transferred

Save as otherwise provided in this Act or in any other law the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar, and other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by the registrar: Provided that notarial attestation shall not be necessary in respect of the conveyance of real rights acquired under a mortgage bond: Provided further that where the State acquires all the land held under any title deed, the registrar shall make such alterations and entries in his registers and such endorsements on such title deed as may be necessary to register transfer to the State of the property so acquired free of charge.

[43]The evidence before court, testified to by all the three witnesses for the plaintiff was that the Farm is still registered in the name of the late Kaune. It means that the estate of the late Kaune has not been conclusively liquidated and distributed. The appointment of Mr. Van Straten is therefore a valid administrative act performed by the Master.

[44]To sum up there is no admissible evidence on record that the late Kaune, made the statement or expressed the wish that on his death the plaintiff must inherit the Farm. Furthermore, there is no indication, not the slightest what the Otjiherero Customary Law, Otjiherero custom and tradition with respect to succession and inheritance is. Thirdly there is on record no evidence whatsoever that there are no assets in the estate of the late Kaune. In fact the contrary appears to be the case. For all these reasons no reasonable Court could or might give judgment in plaintiff's favour.

Costs

[45]There is no reason why costs should not follow the result. The plaintiff must therefore be ordered to pay the costs of the defendants in this court on the basis of one instructing and two instructed counsel.

Order

[46]I accordingly make the following order:

1. The defendants are absolved from the instance.

2. The plaintiff must pay the costs incurred by the defendants, such cost to include the costs:

(a) In respect of the 4th -19th, 21st -23rd and 26th defendants. The cost, of one instructing and one instructed counsel.

(b) In respect of the 27th and 28th defendants the costs of one instructing and two instructed counsels.

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SFI Ueitele

Judge

APPEARANCES:

PLAINTIFF: T Phatela

Instructed by Dr Weder Kauta & Hoveka, Windhoek

4TH TO 19TH, 21ST TO 23RD AND 26TH

DEFENDANTS:J Schickerling.

Instructed by Engling Stritter & Partners, Windhoek

27 TH DEFENDANT R Heathcote (assisted by J Jacobs)

Instructed by Van der Merwe Andima, Windhoek

28TH DEFENDANTSG Hinda (assisted by G Narib).

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