The Katutura Magistrate's Court has put on hold the trial of land activist Dimbulukeni Nauyoma to wait for the High Court’s ruling in which he is challenging the Squatters Proclamation Act.
Nauyoma was scheduled to go on trial yesterday before Magistrate Alice Gawanas.
However, his lawyer Wilbard Kagola brought an application to have the matter postponed until such a time the High Court has made a ruling.
The court granted the order and postponed the matter to 29 June 2021 for a plea and trial.
Nauyoma was arrested on 18 January 2019 when he allegedly attempted to stop Windhoek City Police officers from demolishing a shack belonging to Okuryangava resident, a 33-year-old single mother of two Wilhemina Shipingana.
Police reported at the time that Nauyoma and other activists tried to rebuild Shipingana’s shack.
The police then arrested Nauyoma along with Emilia Simon, Tuhafeni Kamati, Wilhem Mapele and Ismael Kalumbu, who have since been released on a warning and have not been charged.
At the time, Shipingana told New Era that her shack was initially demolished in the morning after she refused to have sexual intercourse with the man who gave her a piece of land to build her shack in December 2018.
Shipingana said the community and Nauyoma rebuilt the shack on the land while trying to get another place. Her shack was again demolished after it was rebuilt.
During his arrest, Nauyoma allegedly sustained injuries on his shoulder and ribs.
AR resorted to High Court, which ordered the police at Wanaheda Police Station take him to Rhino Park private hospital.
Nauyoma was then transferred to Windhoek Central Hospital, where he was under police guard.
Nauyoma is expected to stand trial on two charges, namely hindering a person and entering upon land, all in contravention of Section 2 of Proclamation AG 21 of 1985.
However, on 15 September, Nauyoma approached the High Court, seeking an order declaring the Squatters Proclamation AG, 21 of 1985 as unconstitutional.
The particular Act, amongst many things, provides for the removal of persons unlawfully occupying land or buildings, and for the demolition of structures that are unlawfully erected.
In his affidavit, Nauyoma is arguing that the Act does not make provisions for circumstances under which unlawful land occupiers obtained the land.
Furthermore, it does not take into account the period of time that person may have occupied the land from which eviction is being sought.
The activist also highlighted that the Act does not make provision for special consideration of the rights of the elderly, children, disabled persons and homes that are headed by women – and it further does not give provision for an alternative dispute solution surrounding the unlawful occupation of land.
It is Nauyoma’s position the erection of structures and land occupation for the purpose of housing should not be criminalised, as housing is a basic need and it is against the constitution.
The government and Attorney General, who are respondents in the matter, have indicated their intent to oppose the application.
According to the answering affidavit of urban and rural development minister Erastus Uutoni, it is not the function of the judiciary to make and repeal laws; that function falls within the work of the legislature.
He said the land activist should have consulted and engaged the National Assembly to consider repealing the proclamation if so advised.
“I further point out that by seeking for an order that repeals the entire proclamation, the applicant is, in essence, inviting this Court to legislate – that is, to perform the constitutional function of the legislature,” explained Uutoni.
The respondents are asking the court to dismiss the application, citing the land activist had an appropriate legal remedy and he did not make use of it.
He also failed to give reasons in his application why he did not approach the National Assembly.
The court is yet to give a hearing date for the matter.
- mamakali@nepc.com.na