Adcock prevails over HambukushuBy: WERNER MENGES
THE traditional court trial which cost Kavango Region lodge owner Mark Adcock a total of N$60 000 in fines in February 2010 was nullified in a judgement of the High Court in Windhoek yesterday.
Since Adcock is not a member of the traditional community over which the Hambukushu Traditional Authority has power, the traditional authority and its head, Chief Erwin Munika Mbambo, did not have the authority and jurisdiction in terms of the Traditional Authorities Act to subject Adcock to a hearing before the Hambukushu Customary Court, Judge Harald Geier ruled.
Judge Geier’s ruling would have an impact on the exercise of power by other traditional authorities throughout Namibia. The judge indicated that, according to the Traditional Authorities Act, traditional authorities can exercise their powers only over people who are members of a traditional community.
A dispute such as the one before him would have to be pursued in the civil or criminal courts of Namibia, as created by the Constitution, the judge indicated.
Judge Geier set aside the decision of Chief Mbambo and the Hambukushu Traditional Authority to subject Adcock to a trial in the Hambukushu Customary Court and declared it as null and void, and further set aside the proceedings which took place in the Hambukushu Customary Court on February 20 2010, while also declaring the proceedings as null and void.
The judge also ordered Chief Mbambo and the Hambukushu Traditional Authority to repay an amount of N$60 000, which Adcock had paid in fines to the traditional authority after his trial, to Adcock by October 30 – together with interest at a rate of 20 percent per year, calculated from March 2 2010 to the date of payment.
Chief Mbambo and the traditional authority must also return a digital voice recorder which had been confiscated from Adcock during his trial, and must pay Adcock’s legal costs on a punitive scale, Judge Geier ordered.
Adcock has owned a tourist lodge and campsite, Ngepi Camp, close to Popa Falls in the north-eastern part of the Kavango Region for more than 20 years. Ngepi Camp is in an area falling under the jurisdiction of the Hambukushu Traditional Authority.
Adcock was tried, convicted and fined in the Hambukushu Customary Court after a female employee of Ngepi Camp had accused him of having conducted a strip search on her following a complaint from one of the guests at the lodge about the disappearance of US$100 from her room.
Adcock denied that he carried out such a search.
He claimed 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 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.
The Traditional Authorities Act defines a member of a traditional community as someone whose parents, or at least one parent, belong to that traditional community, or who has assimilated the culture and traditions of that community by marriage to a member of the community, adoption by a member of the community, or any other circumstance, and who has been accepted by the traditional community as a member, Judge Geier noted.
There was no evidence that Adcock – an investor who is of Scottish descent – fell into any of those categories set out by the Act, the judge said.
He added that in his view the mere fact that Adcock has been operating a lodge for more than 20 years under a lease agreement concluded with the Hambukushu Traditional Authority is on its own not enough to prove that Adcock has assimilated the culture and traditions of the Hambukushu traditional community, which would have given the traditional authority jurisdiction over him.
Adcock was represented by Norman Tjombe with the hearing of his case in the High Court five weeks ago. Government lawyer Jabulani Ncube represented the Hambukushu Traditional Authority and Chief Mbambo.