Wood and Others v Ondangwa Tribal Authority and Another

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Botha JA, Holmes JA, Trollip JA and Corbett JA
• Judgment Date: 24 February 1975
• Citation: 1975 (2) SA 294 (A)
• Hearing Date: 21 November 1974
• Court: Appellate Division

Rumpff, C.J.:

This is an appeal against an order of the South-West Africa Division discharging, with costs, a rule nisi G which had been issued on 19 November 1973 at the request of the three applicants who are now the appellants before us. Leave was granted to appeal to this Court against the order after such leave had been refused by the Court below. In the Court below the applicants sought to interdict two tribal authorities in South-West Africa (the respondents before us), H inter alia, from inflicting corporal punishment upon any person on the ground that he is or is suspected of being a member or sympathiser of any of the organisations known as the Democratic Co-operative Development Party or the South-West Africa Peoples' Organisation (known as Demkop and Swapo respectively). On the return day of the rule the point was taken on behalf of respondents in limine, and on notice, that the applicants had no locus standi. This point was upheld and for that reason the rule was discharged. In order to decide whether the applicants had locus standi it is necessary, in the first place, to give a summary of the facts on which the appellants base this application.

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In the affidavits the first, second and third applicants are described as follows:

"1.

I am the first applicant. I am Bishop Suffragan of the Diocese of Damaraland of the Church of the Province of South Africa also known as the Anglican Church and reside at 5, Brahms Street, Windhoek.

2.

A The second applicant is Leonard Nangolo Auala, the Bishop of the Ovango Kavango Lutheran Church, and president of the Lutheran Church in the whole of South-West Africa, and a resident of Oniipa, South-West Africa, now attending a conference of the Lutheran World Federation, at Geneva, Switzerland.

3.

The third applicant is Thomas Komati whose affidavit is annexed hereto, marked annexure 'A'."

B In annexure A the third appellant states the following:

"I am the third applicant and am an unmarried Owambo male of full age and a student care of St. Mary's Mission, Okwanyama, Owambo."

In terms of the rule nisi leave was granted to the applicants to amplify the papers in the application, where necessary, not later than 20 December 1973. The first applicant filed a C supplementary affidavit stating, inter alia, that he had been asked on 17 November to move the application on the second applicant's behalf. The second applicant later filed a replying affidavit, dated 18 December 1973, in which he states:

"1.

I am the Bishop of the Ovango Kavango Lutheran Church and president of the Lutheran Church in the whole of South-West Africa. I reside at Oniipa. The facts herein contained are within my personal knowledge and D are true and correct. I am the second applicant in this matter.

2.

When this application was brought before this Honourable Court, I was at a conference of the Lutheran World Federation at Geneva, Switzerland. Since, however, I have returned..."

The respondents were cited as follows:

"4.

The first respondent is The Ondangwa Tribal Authority at Ondangwa, Owambo, acting as a tribal council of E headmen in terms of Proc. R.348 of 1967.

5.

The second respondent is The Okwanyama Tribal Authority of headmen in terms of Proc. R.348 of 1967."

The return of service signed by the Deputy Sheriff, reads as follows:

"'n Afskrif van die bevel is op 7.12.73 gedien op die stamsekretaris van die Ndonga Stamowerheid te Oluno, F stamkantoor en die ander afskrif is op 7.12.73 op die stamsekretaris van die Kwanyama stamowerheid gedien te Ondangwa."

The first applicant states in his affidavit that in October 1973 he had brought an application on behalf of and in the name of Andreas Nuukwawo and Johannes Nangatuuala against the first respondent in this matter for an order interdicting the first respondent from inflicting corporal punishment upon Andreas G Nuukwawo. As the papers in that application were available to the Court a quo, only copies of the affidavit used in the application were attached to the present application. Those affidavits were dealt with by the first applicant in his affidavit in the present application as follows:

"6. (b)

From the aforementioned affidavits it will be observed that on 25 October 1973 I was H informed that Johannes Nangatuuala had been brought before the Ondangwa tribal authority and had without being given any opportunity to defend himself and without being informed of the commission of any offence, been sentenced to 20 strokes with a cane which sentence had been summarily carried out upon him that day. On the same day I was informed that Andreas Nuukwawo was to appear before the first respondent on the following day. At that stage Andreas Nuukwawo feared that he would receive a punishment similar to that meted out to Johannes Nangatuuala and he accordingly authorised me to move an urgent application on his behalf, which I did. In that application I urged before the Honourable Court that there was a reasonable

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danger that the said Andreas Nuukwawo would not be afforded an opportunity to defend himself nor to be represented before the tribal authority and that he would be summarily sentenced to corporal punishment. This submission was made not only in the A light of the treatment meted out to Johannes Nangatuuala but also in the light of the affidavits annexed to the aforesaid application, namely the affidavit of Otilla Nongola, dated 27 September 1973, Elise Nghiilwamo, dated 27 September 1973, Rachal Shaduka, dated 27 September 1973 and Esther Kalola, dated 27 September 1973, copies whereof are annexed hereto, marked annexures 'B', 'C', 'D', and 'E' respectively.

(c)

In the same application were annexed the affidavits of one B Nicky Alweendo, dated 1 October 1973 and of John Otto, dated 28 September 1973, copies whereof are annexed hereto, marked 'F' and 'G' respectively. From the aforesaid annexures it will be observed that four women were summarily accused by the tribal court at Ohangwena of having been absent from duty without leave and sentenced to six strokes of the 'Apokolo', which is the central rib of the Makalani palm. In this regard I further refer to the affidavit of Philip C Shilongo, annexed hereto marked 'H', from which it appears that the aforementioned four women had informed him that at the time of their so called trial in front of the second respondent, they were accused of being members of Swapo and despite their denials that they had committed any offence of whatsoever nature, had been sentenced and flogged in the manner described in their affidavits.

(d)

D From the affidavits the aforesaid Nicky Alweendo, annexure 'F' hereto, it appears that on 20 September 1973 the said Nicky Alweendo appeared in front of the tribal authority where he was informed that since he was a member of Swapo and had taught Swapo songs to children, he was to be punished by 15 strokes with the cane of a Makalani branch. In pursuance of such sentence he was without being given any opportunity to meet any charges or in any way to defend himself and E prove his innocence, sentenced and flogged with the administration of 17 strokes from the said Makalani cane upon his naked buttocks. This punishment was administered in the presence of the tribal authority and in the presence of numerous men and women belonging to the public. As also appears from the affidavit of John Otto, annexed hereto marked annexure 'C', four other persons were flogged in a similar fashion, F namely Boas Mweendeleli who received 15 lashes, Mulandoleni Itope, who received 15 lashes and Martin Ifo, who received 15 lashes and Philippus Nargatinalo who received 15 lashes with a Makalani cane. The allegations against the aforementioned four persons and Nicky Alweendo, were that they possessed Swapo flags, that they gave the Swapo sign with their thumbs, and that they had attended Swapo gatherings. These persons were at no stage offered any G opportunity to defend themselves or to prove their innocence in any way."

I think it is necessary at this stage, to mention that Otilia Nongola, a nurse, and Elise Nghiilwamo, Rachel Shaduka and Esther Kalola, who are student nurses, in their respective affidavits state that:

"I was brought before the tribal court at Ondangwa, Owambo on an unspecified charge."

H In his affidavit Nicky Alweendo states that he was arrested by the South African Police and thereafter handed over to the tribal council of Ondangwa and was kept in custody by the tribal police.

In his affidavit in the present matter, first applicant continues as follows:

"7. (a)

In pursuance of the aforesaid application, the Honourable Court granted an interdict on the afternoon of 25 October 1973. In the morning of the same day my attorney, Michael van Niekerk, communicated with the secretary of the first respondent and informed the said secretary of the nature of the application and the relief which was to be sought and

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further informed the said secretary that, if the flogging was administered, it would be at the risk of the aforesaid tribal authority.

(b)

Notwithstanding the aforesaid communication and as appears from the affidavit of Andreas Nuukwawo, dated 7 November 1973 and filed in the aforementioned proceedings, annexed hereto marked annexure 'I', the said Andreas Nuukwawo was on the very day that the A application was heard in the above Honourable Court, brought before the first respondent and informed inter alia that he had issued pamphlets calling for a large scale strike, that he had through newspaper reports sent to various parts of the world, alleged that the Owambo Government had administered corporal punishment to innocent people; that he had admitted that he was a member of Swapo and that he had B expressed slogans that chiefs and headmen should go to Kakamas. At the aforesaid hearing he...