Justicia Shipena
The Supreme Court has this week dismissed an appeal by aspiring Rehoboth Baster traditional leader Rynault van Wyk, who wanted the court to overturn the 2021 election of kaptein Herbert George Britz.
Van Wyk lost the election and argued that the process was irregular, unfair and not conducted under the Baster Paternal Laws of 1872.
The election took place on 24 April 2021 after the deaths of kaptein John McNab in October 2020 and acting kaptein Barney Buys a month later.
Cyril Pienaar was then appointed acting kaptein and formed an election committee to organise the vote.
Van Wyk participated in the election and received 523 votes, while Britz won with 2 578 votes.
Before voting day, Van Wyk filed an urgent application in the High Court to stop the election, but the court struck the matter from the roll for lack of urgency.
He continued to take part in the election and only renewed his objections after losing.
In the High Court, Van Wyk argued that the election breached the Paternal Laws and contained irregularities.
He complained about poor public awareness, badly sealed ballot boxes, too few observers and suspicious handling of votes.
The High Court dismissed his claims, found that he participated knowing the rules, and ordered him to pay costs.
Van Wyk then appealed to the Supreme Court, raising eleven grounds of appeal.
He said the Paternal Laws were still valid and claimed the election was not free or fair.
The Supreme Court found that the High Court erred when it ruled that the Paternal Laws had been repealed.
It said an earlier full bench decision confirmed that the Paternal Laws still exist in a limited private-law form, as long as they do not conflict with the Constitution.
The court said this correction did not change the outcome because Van Wyk still had to prove his case.
The court held that Van Wyk was unable to demonstrate the specific violations of the Paternal Laws. He also failed to provide evidence of irregularities serious enough to affect the result.
The court said many of his claims were contradicted by sworn statements from election officials, observers and security guards.
The court found that Van Wyk did not provide the 18 observers he was asked to nominate, which weakened his objections about too few observers.
Claims that ballot boxes were mishandled were dismissed after the court accepted evidence that all boxes were sealed, guarded and transported under supervision.
The court also accepted that 66 ballot papers that were briefly misplaced were unused, later found and properly handled.
The only major irregularity confirmed involved online voting in Okahandja, where fraud was detected. Both sides agreed that those votes should be discarded. The court said removing the online votes did not affect the overall fairness of the election.
Using the Plascon-Evans rule, the court accepted the respondents’ version as more credible and found that Van Wyk failed to prove irregularities that could have changed the outcome.
Because Van Wyk succeeded on the narrow point about the Paternal Laws and the respondents succeeded on the main issue of irregularities, the Supreme Court ordered each party to pay its own legal costs for the appeal.
The High Court cost order remains in place.
The appeal was dismissed, confirming Britz as the duly elected kaptein of the Rehoboth Baster community.
Caption
Rynault van Wyk
