Windhoek
Khomas Regional Council (KRC) was last Friday ordered to pay the costs of an appeal application lodged by a man who rented a piece of land from it in Katutura.
Judges of Appeal Dave Smuts, who wrote the judgment, Fred Chomba and Elton Hoff upheld an appeal lodged by Sam Namene against a judgment in the High Court striking out his counterclaim to an eviction application with costs.
In the eviction application the applicant (KRC) claimed they are the owner of a certain erf in Katutura where they operated a brickmaking project for women. It was further alleged the defendant (Namene) is in unlawful occupation of the property and had ‘hijacked’ the project and appropriated building materials meant for the project.
It was further alleged he erected illegal structures on the property and thus the application sought Namene’s eviction from the property and the removal of the structures.
In a plea filed with the court, Namene denied being in unlawful occupation of the property and pleaded that as a member of the brickmaking project, he entered into a lease agreement with the KRC, represented by a certain Ms Mberirua in May 2004.
According to Namene, a copy of the lease agreement was held by a certain Mr Kustaa, as the coordinator of the project, on behalf of Khomas Regional Council and a copy was provided to the City of Windhoek.
Namene further claimed that he unsuccessfully tried to obtain a copy from Kustaa, but was refused and he thereafter approached the offices of KRC to get a copy of the agreement, who in turn told him that the agreement was “lost”, along with the copy at the City of Windhoek.
Namene further claimed KRC knew he was in lawful occupation of the property and the lease was never terminated. In a counter-claim he filed, Namene claimed he had made improvements to the property of N$570 000 and further said the cost to remove and relocate the machinery would amount to N$200 000, if he was found to be in unlawful occupation of the property.
KRC objected to these claims and argued the plea and counterclaim are not in accordance with the Rules of the High Court as Namene did not attach a copy of the lease agreement. They argued that the lack of a lease agreement meant the plea and counterclaim lacked the necessary averments to sustain a defence and counterclaim, respectively.
The High Court then upheld the objections by Khomas Regional Council and ordered Namene to pay the costs of the lawsuit and struck his counterclaim from the roll. The Appeal Judges, however, found the decision by the High Court to be incorrect.
They found that the elements for a cause of action or defence are determined by substantive law and not with reference to the rules, which set out procedural requirements.
“Occupying property with consent in the form of a lease agreement is a defence to a claim for eviction as a matter of substantive law,” the judges asserted. They further said that where it is impossible for a party to lay its hands on an agreement the rules of evidence permit that party to prove its execution and terms by other evidence.
They further contended that the objections lodged by Khomas Regional Council were submitted in bad faith and should have been dismissed. In conclusion, the Judges of Appeal upheld the appeal and set aside the order of the High Court, ordering Khomas Regional Council to pay the costs of Namene’s appeal.
They also referred the matter back to the High Court for further case management. Nixon Marcus appeared on behalf of Namene. Advocate Ndlovu from the Attorney-General’s office represented Khomas Regional Council.