Namibia
Namibian woman challenges discriminatory laws in High Court

Misanet.com / The Namibian, 2 February - Two vestiges of discrimination against black Namibians and illegitimate children contained in laws inherited from the distant colonial past are to be tackled in a case that made its first appearance in the Namibian High Court yesterday.

Okahandja resident Apia Kauapirura took an important step towards making legal history in Namibia when she succeeded in being granted an order in the High Court in Windhoek to prevent the sale of a house that the late father of her two sons left behind when he died.

With Kauapirura's application, she is launching a combined attack on the constitutionality of two controversial but nevertheless still valid parts of Namibian law: a common law rule which says illegitimate children can, unlike children born in wedlock, not inherit automatically from their father if he dies without leaving a will, and provisions in the almost 73-year-old Native Administration Proclamation of 1928 that determines that the estates of "natives" who died without leaving a will would not be administered as would the estates of "white" or "coloured" people in Namibia.

Kauapirura (41) and the late Gerson Tjirera lived together as husband and wife for over 10 years, but were never married, until he died aged 39 in 1999. They had two sons together, who are now aged 10 and three respectively.

At Tjirera's death, the largest asset in his estate was a house he owned at Okahandja. He died without leaving a will.

Because he was also a black Namibian, the Native Administration Proclamation of 1928 provides that his estate would be divided according to "native law and custom", which would be Herero customary law.

As is the practice with the administration of the estates of "natives" who died without leaving a will in Namibia, an executor was also appointed to handle the distribution of Tjirera's assets according to Herero customary law. In his case, the executor was his brother, Petrus Kaunatjike.

Relatives of the late Tjirera at first agreed that his house should be given to Kauapirura and his two sons, she claims. However, during 2000 she learned that Kaunatjike was planning to sell the house.

When she confronted him about it, he responded that in terms of Herero customary practices he was, as Tjirera's eldest brother, entitled to inherit everything and that he would proceed with the sale of the house.

That would mean that Tjirera's sons would lose the single biggest asset their father left behind, and would leave them without a place to stay, Kauapirura says.

Because the Native Administration Proclamation provides for the estates of "native" people to be handled differently from those of "white" or "coloured" people in Namibia, it is racist, outdated and ultimately unconstitutional, Kauapirura charges.

She further attacks the common law rule which holds that illegitimate children do not inherit from their father if he dies without leaving a will. In contrast, children produced within a marriage can inherit intestate from their father.

That distinction is also unconstitutional since, among others, it violates an illegitimate child's constitutional right to equality before the law and their right not to be discriminated against on the ground of their social status, says Kauapirura.

It is common knowledge that many children in Namibia are born out of wedlock and are as a result considered to be illegitimate, Kauapirura states in an affidavit submitted to court.

She argues: "There is no rational reason for this inequality in the present day Namibia. Not to allow these children to inherit from their fathers' estates does nothing to preserve the institution of marriage, but instead punishes these children for something that they were obviously powerless to prevent - to be conceived and born out of wedlock."

With Kauapirura's lawyer, Norman Tjombe of the Legal Assistance Centre, and Deputy Government Attorney Willie Oosthuizen, who appeared for the Master of the High Court, the Okahandja Magistrate, the President and the Registrar of Deeds, agreeing on the terms of an order, Judge Mavis Gibson directed that the sale of the house be stopped.

The matter is set to return to court on March 5. Kaunatjike and the other respondents must then show why the sale should not be stopped permanently, why Tjirera's estate should not be administered by the Master, and why the disputed sections of the 1928 Proclamation and the common law rule on the inheritance rights of illegitimate children should not be declared unconstitutional and be scrapped.

By Werner Menges, The Namibian

 

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