The hearing to determine the legality of the Squatters Proclamation AG, 21 of 1985, has been put on hold after the court ruled the matter was not ready to be heard.
High Court Judge Harald Geier on Wednesday said the case has not gone through proper case management for the court to determine that it was ready to proceed for a hearing.
Geier said he recalled the matter, which was scheduled for a hearing on 15 June by Judge Kobus Miller, on 10 March, after he detected some discrepancies.
“I don’t understand how you managed to convince the judge to give you a hearing date, knowing full well that the matter is not ready for a hearing,” Geier questioned.
The court ordered that the case management process starts afresh with both parties filing relevant papers for the condonation application filed on 5 May. This is to be done on or before 28 May. The court postponed the matter to 9 June for a status hearing. 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attorney general to court to get the Squatters Proclamation, AG 21 of 1985, declared unconstitutional, and for it to be repealed.
That 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 court documents, Nauyoma is arguing the Act does not make provision for circumstances under which unlawful land occupiers obtained the land. Furthermore, it does not consider the period that person may have occupied the land from which eviction is being sought. The activist also highlights 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 furthermore does not make provision for alternative dispute resolution surrounding the unlawful occupation of land.
The land activist is currently awaiting trial for violating the Squatters Proclamation Act in 2019. 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.
He is thus 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 the Katutura Magistrate’s Court.
Government has indicated that they will be opposing the application. On behalf of government, urban and rural development minister Erastus Uutoni indicated in his answering affidavit that Nauyoma is seeking legislative relief, and the court cannot grant such relief.
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.
Lawyer Neliswa Tjahikika is representing Government in the application, while Kadhila Amoomo is representing Nauyoma.