Windhoek
Judge Shafimana Uitele yesterday ordered employees of Desert Fruit in southern Namibia not to erect new structures on Farm Komsberg. Their previous reed-hut structures were destroyed during a flash-flood on January 21 that also killed a three-year old girl.
Farm Komsberg, which is currently under liquidation, has been home to more than 200 Desert Fruit employees for the past three years. After the farm was put into liquidation it was barred from bringing an urgent application to evict the employees, but it did eventually bring an application before the High Court.
It now argues that because the flood destroyed the reed structures of the farm workers they are no longer in possession of any housing structures and should thus no longer be permitted to stay on Komsberg.
In an affidavit filed by Alwyn van Straten, the liquidator, Farm Komsberg asked the court to interdict Desert Fruit – as the first respondent – from permitting or assisting 205 Desert Fruit employees from erecting new structures on the farm, citing Karas regional coordinator of Swapo Matheus Mumbala and the regional representative of the Namibia Farmworkers Union (NAFWU), as well as the 205 employees.
Desert Fruit, through its director Johannes Hendrik van der Walt, raised an objection saying the application lacks urgency in that the relief sought constitutes an eviction of persons who have been residing on the property for some years. Judge Uitele, however, granted the applicants leave to bring the matter as one of urgency and ordered the respondents to refrain from erecting new structures on the property, pending the outcome of the case.
He then postponed the matter to March 23 for a status hearing to determine a date for the hearing. In the meantime he ordered that the rule nisi be of immediate effect.
During arguments senior counsel Reinhardt Totemeyer, assisted by Advocate CE van der Westhuizen – instructed by Ellis Shilengudwa Inc. on behalf of Desert Fruit – argued that the relief sought is plainly and simply an eviction order. He said the applicant, who was stopped from evicting the affected persons by way of an urgent application, is now attempting to “capitalise on an intervening act of God, which had devastating effects on vulnerable people who were left homeless by the flood”.
He said the applicants are asking the High Court to interdict homeless persons from re-erecting structures on property they have lived on for years. This, he said, will have devastating consequences in that it will force the affected persons to seek shelter elsewhere, thereby effectively securing an eviction.
Senior counsel Raymond Heathcote, assisted by Advocate Japie Jacobs – on instruction from Van der Merwe-Greeff Andima Inc – argued on behalf of Komsberg that the relief sought does not constitute an eviction order, but rather an opportunity for Desert Fruit employees to be housed by their employer.
According to an affidavit by Van Straten, Desert Fruit – as the employer – has a legal and constitutional obligation to provide housing to its workers and not to leave its employees dependent on some else.
He said Desert Fruit has more than enough space and resources to accommodate its employees on its own farms adjacent to Komsberg, but “only the will is lacking”.
Heathcote argued that the application “simply concerns the enforcement of Desert Fruit’s fundamental duty to provide housing to its employees – who are now destitute on its own property.”
He further said there is longstanding dispute between Desert Fruit and Komsberg concerning the presence of their employees on Farm Komsberg. In essence, he said, Desert Fruit’s employees must be housed on Desert Fruit’s farms adjacent to Komsberg.
According to Van Straten he brought the application in due course for the employees of Desert Fruit to be evicted so they can be relocated to Desert Fruit’s farms, but now that the workers are no longer in possession of the housing structures he wants them removed from Komsberg.