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Hoveka traditional leader loses official recognition

Peya Mushelenga

The Ovambanderu Traditional Authority has won a legal battle against the official recognition of a traditional authority and leader for a community that it says falls under its jurisdiction.

The minister of urban and rural development’s decision to approve the designation of Turimuro Hoveka as chief of the Hoveka Royal House in November 2018 was set aside by judge Thomas Masuku in a judgement delivered in the Windhoek High Court on Friday. Masuku also declared the designation of Hoveka as traditional authority chief as null and void, and further set aside president Hage Geingob’s decision to recognise Hoveka as chief of the Hoveka Traditional Authority through a proclamation published in the Government Gazette in July 2019.

The Ovambanderu Traditional Authority – then led by chief Kilus Nguvauva – in July 2019 filed a High Court application to have the official recognition of Hoveka reviewed and set aside.

The Ovambanderu Traditional Authority argued that the Eiseb block area in the Omaheke region in which the Hoveka Traditional Authority was based falls under the jurisdiction of the Ovambanderu Traditional Authority.

It also argued that the decision of the then minister of urban and rural development, Peya Mushelenga, to approve the designation of Hoveka as chief of a Hoveka Traditional Authority would result in a split of an existing traditional community and encourage the mushrooming of traditional authorities, which is against government policy, Masuku recorded in his judgement.

Masuku noted that the Hoveka clan had since 1999 made several applications to the minister of urban and rural development to be recognised as a separate traditional community. Those attempts were all unsuccessful.

When another application was made to have a traditional authority of the Hoveka clan recognised, the minister was required to get information about the reasons for the refusal of previous applications and to consider those in the light of new information placed before him, Masuku said.

One of the reasons that had been given previously for a refusal to recognise the traditional authority was that the Hoveka clan falls under the Ovambanderu Traditional Authority, the judge noted.

Masuku found that Mushelenga failed to give the Ovambanderu Traditional Authority a proper hearing before he took his decision to approve the designation of Turimuro Hoveka as traditional leader.

Had he given the Ovambanderu Traditional authority a proper hearing, he may have been informed of the reasons why the traditional authority opposed the proposed designation of Hoveka as traditional leader and the recognition of the Hoveka Traditional Authority as a separate traditional community, Masuku said.

He added that in terms of the Constitution, persons likely to be affected by a decision should be given an opportunity to be heard by the decision-maker before the decision in question is made.

Knowing the Ovambanderu Traditional Authority’s well-documented interest in an application to have the designation of Turimuro Hoveka as traditional leader approved, Mushelenga should have given the traditional authority a hearing, Masuku stated.

He added that if Mushelenga intended to depart from decisions made by his predecessors as minister, he should have advised the Ovambanderu Traditional Authority and afforded it an opportunity to persuade him otherwise.

Since he failed to give the traditional authority an opportunity to be heard before he made his decision, that decision must be reviewed and set aside, Masuku reasoned.

On the repeated past attempts to get official recognition for a Hoveka Traditional Authority, Masuku commented that it was a matter that “seems to have nine lives like a cat”.

“It is unseemly that a matter like this continues in perpetuity and appears to mutate either in terms of the name of the intended chief, the name of the traditional authority or the location where the community is alleged to be based,” he said.

While a party has a right to have a legal dispute taken on appeal to the Supreme Court, which is the final decision-maker on a case, there should also be finality in disputes so that people can get on with their lives and know that the final word on an issue has been spoken, Masuku said.

He ordered that the minister and the Hoveka Traditional Authority should pay the legal costs of the Ovambanderu Traditional Authority in the matter.

Natasha Bassingthwaighte, instructed by Saima Nambinga, represented the Ovambanderu Traditional Authority.

The minister was represented by Dennis Khama, instructed by the government attorney’s office.

Kaijata Kangueehi represented the Hoveka Traditional Authority.

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