Ovambanderu Traditional Council and Another v Minister of Urban and Rural Development and Others (HC-MD-CIV-MOT-REV 475 of 2019) [2021] NAHCMD 343 (22 July 2021)

Key Facts

Issues

• The respondents challenged the locus standi of the first and second applicants, arguing their composition and authority to bring the application conflicted with sections 2(1) and 3(4) of the Traditional Authorities Act. The court dismissed these points, finding the applicants established sufficient standing through their voluntary association and resolution to sue.
• The Minister claimed the applicants' application did not meet section 5(1) requirements. The court ruled this was the Minister's administrative duty to address, not a basis for dismissal, emphasizing the court should not substitute the Minister's role in processing designation applications.
• The respondents argued the 2-year delay in instituting the review application was unreasonable. The court rejected this, noting genuine engagements with the Minister and that the 6-month period between May 2019 and November 2019 filing was not unreasonable.

Holdings

• The Minister for Urban and Rural Development is responsible for determining non-compliance with the Act's provisions regarding applications for designation. The court should not act as the Minister's proxy in such matters unless a decision is made that causes dissatisfaction.
• The applicants have the necessary locus standi to institute the proceedings as they demonstrated a direct and substantial interest in the relief sought. The first applicant, a voluntary association, is authorized to sue and be sued in its own name, evidenced by the filed resolution. The applicants' delay in filing the review application was not unreasonable, given the correspondence and engagements with the Minister and other parties.
• The points of law in limine (prior notification, locus standi, authority to bring application, and unreasonable delay) were dismissed. The matter is ordered to proceed on the merits, with costs awarded to the applicants and a postponement for further directions.

Remedies

• The court dismissed the respondents' points of law in limine, including challenges to the applicants' locus standi and allegations of unreasonable delay.
• The first, second, third, and fourth respondents are ordered to pay the costs of the application jointly and severally, equivalent to one instructing and one instructed legal practitioner.
• The matter is postponed to 5 August 2021 at 08:30 for directions regarding the further conduct of the case.

Legal Principles

• The ruling emphasized the separation of powers by clarifying that the Minister is the designated authority to handle applications for chief designation under the Act, and the court should not perform this administrative function.
• The court held that the applicants met the burden of proof for locus standi, showing a direct and substantial interest in the relief sought through their voluntary association's constitution and resolution.
• The court applied judicial review principles to determine the validity of the Minister's decision regarding the designation of a chief, emphasizing that the court's role is to review administrative actions rather than substitute for them.

Precedent Name

• Hikumwah v Nelumbu
• The Council of the Itireleng Village v Madi Felix
• China State Engineering Construction Corporation v Namibia Airports Company
• Nguvauva v Minister of Regional and Local Government Housing
• Morrison vs Standard Building Society

Cited Statute

• Traditional Authorities Act, 2000 (Act No. 25 of 2000)
• Council of Traditional Leaders Act, 1997 (Act No. 13 of 1997)
• Namibian Constitution

Judge Name

Passage Text

• Held: that the applicants have the necessary locus standi to institute the proceedings in question as they amply demonstrated that they had a direct and substantial interest in the relief sought.
• Held further that: in the circumstances, it cannot be said that there was unreasonable delay on the part of the applicants in launching the application for review such as to non-suit the applicants.
• Held: that the Minister for Urban and Rural Development is the one, who in terms of s 5(1) of the Act, is supposed to make the decision regarding non-compliance, if any, with the provisions of Act in relation to an application for designation.