A leadership dispute that has been dividing the Witbooi traditional community for eight years should be resolved by the Witbooi royal family in line with directives given by former minister of urban and rural development Sophia Shaningwa in 2017, the Supreme Court says.
Acting judge of appeal Rita Makarau said this in an appeal judgement delivered yesterday.
Makarau also said if authorised members of the Witbooi royal family still cannot agree on one candidate to be officially recognised as traditional leader, or kaptein, of their clan, their community should elect its next leader. If an election has to be held, the Witbooi Traditional Authority may seek guidance from the minister of urban and rural development on how to arrange and administer the election, she added.
In the Supreme Court’s judgement, Makarau, deputy chief justice Petrus Damaseb and appeal judge Dave Smuts dismissed an appeal of a contender for the traditional leadership of the Witbooi Nama clan, Hendrik Ismael Witbooi, against a High Court judgement in which his designation as kaptein was set aside in April last year.
High Court judge Thomas Masuku set aside the designation of Hendrik Ismael Witbooi after a cousin and leadership rival of Witbooi, Salomon Witbooi, lodged a legal challenge against the designation.
Hendrik Ismael Witbooi was officially recognised as traditional leader in April and May 2019, following the death of the Witbooi community’s previous acting kaptein, Christiaan Rooi, in October 2015.
Before the official designation was done, Shaningwa referred the Witbooi leadership dispute to an investigating committee, which in 2017 recommended that the Witbooi Royal House should resolve the leadership succession dispute without the involvement of non-members of the royal house, and that an election had to be held if the dispute could not be resolved within the Witbooi family within six months.
The committee also concluded that both leadership candidates qualified for designation as kaptein of the Witbooi community, as both are members of the royal house.
Shaningwa accepted the investigating committee’s recommendations and communicated this to the Witbooi Traditional Authority and the competing camps in the Witbooi community, while directing them to adhere to the recommendations.
No election was held as directed, though, and after Shaningwa’s successor as minister, Peya Mushelenga, received fresh applications to have the two leadership candidates’ designation as kaptein approved, he requested a legal opinion on the matter from the Office of the Attorney General.
In the legal opinion, Mushelenga was advised that only Hendrik Ismael Witbooi – who is related to the previous kaptein, former deputy prime minister Hendrik Witbooi, through his father – was eligible to be recognised as traditional leader.
Salomon Witbooi is related to the former kaptein through his mother, who is a sister of the late deputy prime minister.
After receiving the legal opinion, Mushelenga decided to designate Hendrik Ismael Witbooi as traditional leader.
In the Supreme Court’s judgement, Makarau said Shaningwa’s decision that the investigating committee’s recommendations had to be followed was a final administrative decision which bound her, her successors as minister of urban and rural development and the parties to the leadership dispute.
After that decision, Mushelenga “with all the good intentions he might have had to end this long-running dispute, no longer had the competence at law to make another decision in the matter”, Makarau stated.
In a concurring judgement, Damaseb said if an election is held to choose the Witbooi clan’s next kaptein, it is important that it should be done transparently and in a way that would avoid disputes that would again end up in the courts.
“Guidance from the minister on that process is going to be critical to the success of an election, should it take place,” Damaseb remarked.
Lawyers Elize Angula and Nangula Kwenani represented Hendrik Ismael Witbooi and the Witbooi Traditional authority in the appeal.
Senior counsel Reinhard Tötemeyer, assisted by Yoleta Campbell, represented Salomon Witbooi and four other members of his camp.
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