Court Rules Shack Demolition Was Unlawful

OFFICIALS of the City of Windhoek were acting unlawfully three weeks ago when they demolished a corrugated zinc building that two government employees had put up on land belonging to the city, it has been found in a judgement delivered in the Windhoek High Court last week.

Although the demolition of the shack of teacher Lukas Junias and his cousin, Ministry of Health and Social Services employee Lineekela Tuhafeni Nhinda, was unlawful, it was not possible for the court to order the City of Windhoek to restore the two men’s occupation of the plot where their shack had been located because the shack no longer exists, Judge Dave Smuts said in a judgement delivered on Wednesday.

Judge Smuts found that, contrary to what Junias and Nhinda were claiming in affidavits filed at the court and in oral testimony heard last week, they did not prove that they were actually living at the shack that was demolished by city officials on 20 February. The interior of the shack showed no indication of human habitation, he remarked.

Junias and Nhinda also told the court that they stored a trailer and building materials in the shack and that they kept it locked with a padlock when they were not at the premises.

Judge Smuts found that this was evidence that established that they possessed the shed at the time it was demolished and removed. When city officials broke down the shack the two men were unlawfully deprived of their possession of the shack, because the city did not first obtain a court order allowing the demolition, he said.

Since the shack no longer exists it is not possible for the court to order that Junias and Nhinda’s possession of it should be restored, Judge Smuts said.

He noted that the two men’s lawyer, Norman Tjombe, acknowledged that his clients had been illegally occupying the land where the shack was built. Judge Smuts remarked that he might in any event have refused to grant the order that Junias and Nhinda were asking for, “lest it be understood that the court in any way condoned illegal occupation of land – just as the court cannot condone any illegal deprivation of possession”.

Judge Smuts said: “Any resort to self help is inimical to the rule of law upon which the constitutional order in this country is founded.”

In the judgement that he delivered on Wednesday afternoon Judge Smuts dismissed the application of Junias and Nhinda, but ordered the City of Windhoek to pay their legal costs.

Source : The Namibian