WINDHOEK – The court case in which two brothers or cousins are challenging the City of Windhoek’s demolition of their illegal structures continued last week Thursday with Oscar Simataa of the City Police confirming in the Windhoek High Court that his actions in demolishing their shack in the Goreangab settlement were legal.
Human rights lawyer Norman Tjombe who lodged the application on behalf of high school teacher Lukas Junias and his brother-cum-cousin, Ministry of Health and Social Services employee, Lineekela Tuhafeni Nhinda, told the judge that his clients were in occupation and therefore in possession of the plot. However, Simataa insisted that in his view the structure that was built on the plot was illegal and that it stood incomplete and abandoned. He informed the court that he went there on the night before the demolition and went as far as knocking on the door of the structure. He found nobody at the structure and no answers on his enquiries as to the identity of the owner or owners from the neighbours, Simataa informed Judge Dave Smuts. According to Simataa the City of Windhoek has ‘a problem’ with people settling in Goreangab and “putting up illegal structures on every piece of land belonging to the City Council.”
However, Tjombe countered that saying the family has been in possession of the plot since 2012 and have constructed structures on the plot and as such was in undisturbed and peaceful occupation of the plot by the time the City of Windhoek officials went to destroy the property. According to Tjombe his clients satisfied the requirements of spoliation as they had free and undisturbed possession of the plot, which is now ‘disturbed’ or destroyed. He said the City of Windhoek did not dispute that items found in the structure are the property of his clients.
According to Tjombe it was also not disputed that the structure was secured with a padlock and that only the applicants had access to it and therefore effective control and possession. “Oscar Simataa’s evidence about what constitutes ‘abandoned’ or ‘incomplete’ structures, is so laughable, it should be rejected, Tjombe said. “The fact that there is no person present at the property is not a requirement for possession. The fact that the property is incomplete is not a requirement for possession,” he further said and qualified the statement with a judgment from the Supreme Court. According to Tjombe what the City of Windhoek and its officials did was to become the accuser, judge and executioner – all in one – in contravention of the Namibian constitution which guarantees a fair and public hearing. Tjombe further compared the actions of the municipality to those of the provisions of the Squatters Proclamation which has been declared unconstitutional by the Supreme Court. “If the Squatters Proclamation is unconstitutional, then the actions based on that statute are the same as what the statute authorised and must be illegal” he said. Accordingly, the applicants are entitled to the spoliation order sought which is the restoration of their possession of the plot. He also asked for costs in the matter on an attorney and own client scale. For his part Thabang Phatela, on behalf of the City of Windhoek, argued that the incomplete structure was unoccupied and had nothing inside or outside indicative of possession and that all materials upon which it was constructed were destroyed or stolen. He said the applicants were not evicted from the land itself, but only from the illegal structure.
He further maintained that in the papers filed by the applicants they conceded that they did not live on the plot. He said that on the issue of cost, the applicants rely on a “mass of defamatory hearsay” which is irrelevant in the case. He further claimed that Junias and Nhinda did not satisfy the order of the Supreme Court as regards costs. According to him the relief sought by the applicants is not available simply because the applicants did not have possession of the illegal structure, which is no longer in existence and that the relief sought is too wide and it is therefore not possible to implement with certainty. He asked for the application to be dismissed with costs to include one instructing and one instructed counsel. Judge Smuts reserved judgment and indicated that he might give his judgment on March 12.
By Roland Routh