The hearing to determine the legality of the Squatters Proclamation AG, 21 of 1985, is scheduled to take place in June in the Windhoek High Court. During the status hearing yesterday, Judge Kobus Miller gave an order that the parties in the matter should file relevant documents on or before 24 March.
He also scheduled the hearing to take place on 15 June. In September 2020, land activist Dimbulukeni Nauyoma dragged the government and attorney general to court to get the Squatters Proclamation AG, 21 of 1985, declared unconstitutional and for it to be repealed.
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.
According to papers filed thus far, Nauyoma through his legal representative Kadhila Amoomo is claiming the proclamation was enacted by the then regime and was enacted during the apartheid era.
“The idea behind the implementation and formulation of the proclamation was to assist the apartheid administration in denying the Namibian people access to land and better housing. On this sole basis, the applicant seeks for a declaratory order that will declare the whole proclamation constitutionally invalid,” reads Nauyoma’s case management report.
Nauyoma argued 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 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.
The land activist is currently awaiting trial for violating the Squatters Proclamation Act last year. Nauyoma was arrested on 19 January 2019 for allegedly attempting to stop Windhoek City Police officers from demolishing a shack belonging to Okuryangava resident and 33-year-old single mother of two, Wilhemina Shipingana.
Thus, he is charged for unlawfully entering the land, without having authority to and without lawful cause. He is further charged for obstructing officers of the law from carrying out their duties.
His trial is scheduled to take place on 29 June in Katutura Magistrate’s Court. Government have indicated that they will be opposing the application. On behalf of government, urban and rural development minister Erastus Uutoni, in his answering affidavit, indicated that Nauyoma is seeking legislative relief and the court cannot grant such a relief.
“I submit that, from a constitutional perspective, it is the function of the Legislature to make and repeal laws and this function is not a judicial function. On this basis, the applicant should have consulted and engaged the Legislature to consider repealing the proclamation if so advised,” said Uutoni.
On the order to have the proclamation repealed, Uutoni noted that Nauyoma is in essence inviting the court to legislate, that is, to perform the constitutional function of the Legislature. Nauyoma, according to Uutoni had an option to approach and engage the National Assembly to consider repealing the proclamation.
“I point out that, from a constitutional framework and perspective, to repeal or not to repeal any existing legislation is a legislative choice that the Legislature has to consider and make,” explained Uutoni. Local lawyer Neliswa Tjahikika is representing government in the application.
-mamakali@nepc.com.na