City Wins Case After Demolition

THE City of Windhoek yesterday successfully defended a lawsuit in which two government employees were suing the city in an attempt to be allowed to return to a piece of land where a shack erected by them was demolished and removed by city employees three weeks ago.

In a judgement delivered in the Windhoek High Court, Judge Dave Smuts dismissed the urgent application that teacher Lukas Junias, who is employed at a high school in Windhoek, and his cousin, Lineekela Tuhafeni Nhinda, who is employed with the Ministry of Health and Social Services, lodged against the Municipal Council of Windhoek following the demolition of the corrugated zinc structure that they had built in the Goreangab area of Windhoek.

However, Junias and Nhinda also scored a partial win over the municipal council with an order by Judge Smuts that the council should pay their legal costs in the matter.

Junias and Nhinda were asking the court to order the council to restore their possession and occupation of a plot of land in the Goreangab area and to stop city employees from demolishing and removing any structure or building belonging to them, or evicting them, from the piece of land in question. The land belongs to the city.

Junias alleged in an affidavit filed at the court that the demolition of the structure he had put up on the land was unlawful, since the city did not first obtain a court order authorising such a step. The city disputed that claim and denied that its officials acted unlawfully when the structure was demolished on 20 February.

According to Windhoek City Police member Oscar Simataa, no furniture or household goods that could serve as an indication that someone was living in the structure was found at the site before the shack was broken down and removed.

Junias and Nhinda are both employed and the method of illegal land invasion preferred by them would provide no solution to the acute housing shortage that they say exists in Windhoek, Simataa argued in an affidavit also lodged with the court.

During a hearing of oral testimony last week, Junias and Nhinda both told Judge Smuts that they have been living at the site before their shack was demolished.

Junias, who owns a Golf 5 car, explained that he supplied a different residential address when he registered his car because there are no house numbers and street addresses in the area in question.

Nhinda also acknowledged to the court that he owns an apartment in Okuryangava. He said some of his relatives are staying in his flat.

Junias and Nhinda also told the court that, while they have been sleeping in the shack, where building work was still incomplete, they have been keeping their mattress in their cars and have been storing their household goods with neighbours or with friends.

The key dispute between the two applicants and the city was over the question whether Junias and Nhinda had been in peaceful and undisturbed possession of the city’s property at the time that the shack was demolished. If they had been in peaceful and undisturbed possession of the land the city would have needed to first obtain a demolition order against them before it could break down their structure, it was argued.

The two men’s lawyer, Norman Tjombe, commented yesterday that the fact that the city was ordered to pay his clients’ legal costs is in itself a victory for the principle that the city must not take the law in its own hands when it deals with persons who are supposedly illegally occupying the city’s property. The City of Windhoek should, as a branch of government, “at all times act lawfully and in full respect of the laws of the country, including the rights of occupants and people in possession of property, regardless of the lawfulness of such occupation or possession”, Tjombe argued.

Thabang Phatela represented the city in court.

Source : The Namibian