It is back to the drawing board for the Witbooi Royal House, following a failed appeal to the Supreme Court by the sitting Kaptein Hendrik Ismael Witbooi.

The Supreme Court Justice Rita Makarau dismissed the appeal by the sitting Kaptein and concurred with the judgement of the High Court in the main. 

The three justices on the bench agreed that issues of traditional leadership succession should best be resolved by the concerned traditional communities, preferably not through acrimonious litigation in courts.

Deputy Chief Justice Petrus Damaseb, who was on the bench together with Justices Makarau and Dave Smuts, added that the dispute between the parties should have been resolved in accordance with the directives given by the Minister of Urban and Rural Development in 2017. The directives were based on recommendations by an Investigation Committee appointed by the minister.
In the event that the dispute could not be resolved amicably, the community should have decided on its leader through elections.
The court concurred with the High Court that the new minister who took over from Sophia Shaningwa, Derik Klaazen, deviated from the recommendations of the Investigating Committee and approved Hendrik Ismael Witbooi's application over that of his cousin Solomon Josephat Witbooi.
The Supreme Court also found that the application of the sitting Kaptein was not done by an authorised body in accordance with the Act but by Simon Otto Jacobs, who was just a senior traditional leader.

The court, however, did not consider whether the Witbooi customary law, which subscribes to patrilineal succession for the clan, is constitutional, saying that the supreme law can only be invoked when there are no adequate remedies in either common law or relevant statutes. Solomon Josephat Witbooi's group argued in their submission that the Witbooi customary law is discriminatory as it only considers those born from the father's side.

In his comments, Judge Smuts agrees with the judgement, saying it gives useful guidance to the minister relating to the holding of the contemplated elections for a new Witbooi Kaptein.

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Da'oud Vries