15 Jul 2013 13:10
WINDHOEK, 15 JUL (NAMPA) - A group of 'illegal squatters' living in Windhoek?s Havana Extension Six informal settlement who since 2009 were subjected to evictions and their homes being demolished, on Monday emerged victorious in an appeal against the City's forced evictions.
A bench of Windhoek Supreme Court Judges - consisting of Acting Judge of Appeal Kate O'Regan and Judges of Appeal Gerhardt Maritz and Sylvester Mainga - ruled in favour of the 'illegal squatters' in a judgement of an appeal application against an earlier ruling by the Windhoek High Court.
In that ruling, the group's urgent application against the City's forced evictions and demolition of their homes was dismissed in the High Court on 16 September 2010.
In Monday?s judgement, the Windhoek Supreme Court ruled in favour of the 'illegal squatters' by ordering the City of Windhoek and its employees to cease evicting the 'squatters' and from demolishing their makeshift homes and other similar dwellings.
The City of Windhoek was also ordered to foot the legal bills of the appellants (illegal squatters).
In addition, sub-sections 4(1) and (3) of the Squatters Proclamation, Proclamation No 21 of 1984 were declared to be inconsistent with the Namibian Constitution, invalid and of no force and effect as from 15 July 2013.
?The second respondent (Municipal Council of the Municipality of Windhoek)and its employees are interdicted from, without first obtaining an order of court, demolishing and/or removing, together with its contents, any structure or building belonging to the appellants (a group of illegal squatters) and the other residents of Havana Extension Six in Windhoek, situated at Erf 1807, at the corner of Matshitshi Street and Monte Christo Road, Goreangab in Katutura,? said Acting Judge of Appeal O'Regan as she read the judgement to which Judges of Appeal Maritz and Mainga concurred.
She went on to say the appellants have been successful in their appeal.
?There is no reason why the second, third and fourth respondents - being City of Windhoek, Office of the Attorney-General and the Government of the Republic of Namibia - should not be ordered to pay the appellants' legal costs in this Court and in the High Court, such costs to include the costs of one instructed counsel and one instructing counsel,? she stated.
In the result, the following order was made: ?The order of the High Court dismissing the group's application is set aside and replaced with the following order that the second respondent and its employees are interdicted from, without first obtaining an order of court, demolishing and/or removing, together with its contents, any structure or building belonging to the appellants and the other residents of Havana Extension Six in Windhoek, situated at Erf 1807, at the corner of Matshitshi Street and Monte Christo Road?.
The second, third and fourth respondents were ordered to pay the appellants? costs on appeal on the basis of one instructed counsel and one instructing counsel.
In the matter, the Legal Assistance Centre (LAC) in August 2009 approached the Windhoek High Court with an urgent application challenging the Windhoek Municipality?s right to evict the approximately 400 illegal tenants living on plot 1807 Havana Extension Six.
The LAC on Monday successfully managed to have the ?Squatters Proclamation?, a 1985 law which allows the owner of a piece of land to remove illegally constructed buildings or structures without the authority of a court order or prior notice to the occupants, proclaimed unconstitutional with the appeal judgement by the Windhoek Supreme Court.
The group of illegal squatters successfully appealed to the court to consider their circumstances as they had young children, did not have alternative housing, and would struggle to survive the winter cold.
The decision by the group to take the legal route was reached during a community meeting held in August 2009, amid City Police officers removing more shacks in the area.
During that year, the City of Windhoek made a concerted effort to remove squatters from various empty plots around Windhoek, including Havana and the recently cleared Otjomuise Sewende, Agste and Neende Laan, among others.
The appellants in the matter were a group of 11 'illegal squatters'- Petrus Shaanika, Auguste Naris, Josua Matsuib, Hadueeshi Binonia, Moses Shikongo, Jacobina Ntinda, Jairus Amunyela, Teofilus Andenge, Hosea Ihuhwa, Johannes Iyambo and Joshua Shatilwe.
The City Police members, which were enforcing the evictions of people and the demolition of their makeshift homes, were the first respondent in the matter.
Windhoek-based lawyer Norman Tjombe, acting on the instructions of Tjombe-Elago Law Firm Inc, represented the 11 appellants.
Gerson Narib, acting on the instructions of Kwala Law Airm, appeared for the first and second respondents ? the City Police and Windhoek City Council.
Albert Boesak, acting on the instructions of the Office of the Government Attorney, represented the Office of the Attorney-General and the Government of the Republic of Namibia (third and fourth respondents).