Lodge owner challenges ‘kangaroo court’ hearingBy: WERNER MENGES
THE owner of a tourist lodge near Divundu in the Kavango Region asked a judge of the High Court in Windhoek this week to set aside a traditional court trial which in February 2010 ended with him being sentenced to pay a fine of N$60 000.
Mark Adcock, who owns the rustic Ngepi Camp close to Popa Falls in the north-eastern part of the Kavango Region, is claiming that he was subjected to a trial at which his rights were violated by what was in effect a kangaroo court.
Adcock is asking the High Court to set aside the decision of the Hambukushu Traditional Authority and its head, Chief Erwin Munika Mbambo, to subject him to a trial in the Hambukushu Customary Court, to set aside the proceedings in that traditional court, and to declare the decision to try him and the trial itself as being in conflict with Namibia’s Constitution.
He is also asking the High Court to order the Hambukushu Traditional Authority and Chief Mbambo to return the N$60 000 which he had to pay as a fine at the conclusion of his trial in the traditional court.
The trial took place after a female employee of Ngepi Camp had accused Adcock of having conducted a strip search on her after one of the guests at the lodge had reported the disappearance of US$100 from her room.
Adcock is denying that he carried out such a search.
He is claiming that he was put through the humiliation of an abusive and unfair trial, and that this was part of wider efforts from the Hambukushu Traditional Authority and Chief Mbambo to evict him from the site where Ngepi Camp has been built up over the past more than 20 years into an investment worth millions of dollars.
The total fine of N$60 000 which he was sentenced to pay included a fine of N$10 000 for having made an audio recording of the trial proceedings, and a fine of N$5 000 for having made written notes during the trial.
Chief Mbambo and the Hambukushu Traditional Authority have been at loggerheads with Adcock over recent years.
The deterioration of their relationship has prompted Adcock on three occasions to take legal action in the High Court against the traditional authority, Chief Mbambo, and members of the local community in the area where Ngepi Camp is situated.
One of those cases, in which Adcock obtained an interdict which stopped a second trial which he was summoned to attend in the Hambukushu Customary Court in April 2010, was concluded on Wednesday when Adcock’s lawyer, Normal Tjombe, told Judge Harald Geier that Adcock was withdrawing that case.
In another case, an interim order which the court granted at Adcock’s request in April last year was made a final order against 18 residents of a village close to Ngepi Camp on Wednesday.
The 18 village residents were accused of having blocked an access road to Ngepi Camp, and having made threats against Adcock, his family, and staff of Ngepi Camp.
The interdict which has now been confirmed directs the 18 respondents, who did not oppose the case, to allow Adcock, his family, and staff and guests of Ngepi Camp to use the access road which had been blocked. The 18 village residents have also been ordered not to make any threats against Adcock, his family, and staff and guests of Ngepi Camp, and not to interfere in the business operations of the lodge.
In the third case, stemming from Adcock’s trial in the traditional court on February 20 2010, Judge Geier heard arguments on a limited issue, being the question whether the traditional court had the jurisdiction to try Adcock in the first place.
Adcock has been arguing that the Hambukushu Customary Court does not have jurisdiction over him, because he is not a member of the Hambukushu community.
Tjombe argued that the Traditional Authorities Act defines a member of a traditional community as someone whose parents, or at least one parent, had been a member of that community. That definition would exclude Adcock, who is a business owner running a commercial enterprise in the area under the control of the Hambukushu Traditional Authority, he argued.
The traditional authority would not have authority over Adcock, but another statutory body, the Kavango Communal Land Board, would have jurisdiction over his business, Tjombe argued.
Government lawyer Jabulani Ncube argued that, due to the fact that Adcock had been running Ngepi Camp in the traditional authority’s area for more than 20 years by now, he has become assimilated into the traditional community. As a result of that, he has subjected himself to the authority of the traditional authority and its court, he argued.
Judge Geier reserved his judgement after hearing the arguments.