‘Court ruling threatens future of Baster community’

Aspiring Rehoboth traditional leader Rynault van Wyk says a High Court judgement following the contested election of a kaptein for the Baster community in April 2021 threatens the future of the community.

Van Wyk, a contender to the Rehoboth Baster community leadership, approached the court with an urgent application to stop the election following the death of the community’s previous kaptein, John McNab, in October 2020.

Van Wyk alleged that the election, in which another candidate, Jacky Britz, was elected as kaptein, was marred by irregularities and was not free and fair.

In a judgement delivered in the Windhoek High Court on 11 May, judge Orben Sibeya dismissed Van Wyk’s application after stating that the Paternal Laws (‘Voorvaderlike Wette’) used by the Rehoboth community to hold its election were repealed by Namibia’s Constitution.

“The issue of the election not being free and fair is a non-issue for several reasons. The first being there is no set of legal and binding rules or framework that the election was conducted on,” Sibeya stated in his judgement.

He added: “The second reason is that some of the issues complained about the day of the election, such as there being inadequate observers, were also due to the fault of [Van Wyk].”

However, Van Wyk has voiced disagreement with the judgement and insists the Paternal Laws of the Baster community remain in place and applicable.

He said the effect of the judgement is that there is now a leadership vacuum in the Rehoboth Baster community and any future attempts to install a kaptein through an electoral process is dead in the water.

“There were a lot of irregularities brought before the court and Sibeya said he can’t make a decision about the irregularities because the Paternal Laws under which this election were held do not exist anymore. If you come to a direct conclusion from this court order, what it implies is that the election was null and void.

“It means that currently there does not exist a kaptein for the Rehoboth Basters. There is nobody in charge. We are without a leader at this stage, but we will leave no stone unturned,” Van Wyk said.

However, interested stakeholder Steven Nell disagreed that there was a leadership vacuum.

“Jacky Britz is recognised as our leader. Part of the community recognises him. They know he won the election. He is kaptain,” he said.

Nell said he would revert to The Namibian after meeting to determine a course of action following the judgement.

Sibeya relied on a 1996 Supreme Court judgement in which the country’s top court set out the history of the Rehoboth community and its Paternal Laws.

Sibeya noted on the Supreme Court’s judgement: “The long and short of it is that the Paternal Laws were repealed by Schedule 8 of the Namibian Constitution and, therefore, ceased to exist.”

He also stated: “A law that is repealed in toto has no legal consequence. Any action taken on the basis of such law is void with no effect. I find that, equally, an application to challenge the election based on the repealed law is void with no legal consequence as it constitutes a nullity.”

In light of Sibeya’s findings, Van Wyk said his camp will push for an appeal to the Supreme Court.