CASE NO.:A249/2009
IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

Heard on: 16 September 2010 Delivered: 16 September 2010 Reasons on: 28 October 2010

REASONS

"2.1 Interdicting and restraining first and second Respondents and their employees from demolishing and/or removing, together with its contents, any structure or building belonging to the Applicants and other residents of Havana 6, Windhoek, Namibia, situated at plot 1807, corner of Matshitshi Street at Monte Christo Road, Katutura, Windhoek, Namibia.
2.2. Declaring section 4(1) of the Squatters Proclamation, Proclamation no. 21 of 1985 to be unconstitutional, invalid and of no force or effect.
2.3. Declaring section 4(3) of the Squatters Proclamation, Proclamation no. 21 of 1985 to be unconstitutional, invalid and of no force or effect."

[2] On 16 September 2010 this Court made the following ruling: 

3. That reasons, if requested within 10(ten) days, will be furnished later.

[3]     It is common cause between all the parties that:
3.1. That Applicants are all informal settlers, who have erected shacks or whose shacks have been demolished by the employees of the second respondent on a certain Erf 1807, in the Goreangab Township, the property of the second respondent.
3.2. The shacks were erected unlawfully, and without the consent of the second respondent.
3.3. Section 4(3) of the Squatters Proclamation provides as follows:
"(3)    Unless a person first satisfies the Court on a preponderance of probabilities -
(a)	that he is lawfully entitled to occupy the land on which any building or structure has been erected; and
(b)	in the case of any person whose right of occupation is based on the consent of any person other than the owner of such land, that such other person is lawfully entitled to allow other persons to occupy such land,
such third-mentioned person shall not have recourse to any court of law in any civil proceedings founded on the demolishing or removal or intended demolishing or removal of such building or structure under this section and it shall not be competent for any court of law to grant any relief in any such proceedings to such last-mentioning person."

3.5 The residents were informed by the employees of the second respondent that they are all illegal squatters on the property and would be forcibly removed in the event that the then residents do not demolish the shacks and move off the property.
3.6 The second respondent commenced with the demolishing of a number of shacks since February 2009. The demolishing of some of the shacks was done in pursuance of the provisions of section 4(1) of the Proclamation which provides as follows:

"4.1 Notwithstanding anything to the contrary in any law contained and without the authority of an Order of Court or prior notice of whatever nature to any person -

[4] This matter was originally placed on the roll for hearing on 6 April 2010 when I raised the question whether the main application could be entertained by this Court in view of the admitted facts by the applicants that they were all unlawful occupiers of certain municipal land belonging to the second respondent to which section 2(1) of the Squatters Proclamation applies.

"Although the remarks made by Van den Heever J, in the Schuster case, supra, was in connection with the enforcement of a contractual right and the present case deals with the protection of a right, the principle applied is the same, namely, that a Court does not deny a person access thereto in respect of the enforcement of his rights, or

"(1) Subject to the provisions of this constitution, all laws which were in force immediately before the date of independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a compenant Court."

"They argue that the law is invalid; but unless and until these Courts declare it to be so, they must obey it. They cannot stipulate for an undertaking as the price of their obedience. They must obey first and argue afterwards..."

[8]     The Supreme Court of Zimbabwe upheld the abovementioned principle as being founded on sound authority and practical common sense. At 607 A to 608 F at H the Zimbabwean Supreme Court stated the following:

'The matter is one of public policy which requires that there shall be obedience to orders of Court and that people should not be allowed to take the law into their own hands.'

"In my view, there is no difference in principle between a litigant who is in defiance of a court order and a litigant who is in defiance of the law. The Court will not grant relief to a litigant with dirty hands in the absence of good cause being shown or until such defiance or contempt has been purged."

"It is clear from the aforementioned authorities that a litigant may be barred from approaching a Court until he or she has obeyed an order of such Court which had not since been set aside.

Applicant's reliance on the provisions of Article 25 of the constitution is misplaced since a litigant, in my view, cannot utilize the provisions of Article 25 in order to evade compliance with a court order."

Compare: Klokow v Sullivan 2006(1) SCA 259 at 265 F - G;

[22.] In S v Ebrahim 1991(2) SA 553 AD the court found that a litigant (The State), where it is a party to proceedings, must come to court with "clean hands". It referred with approval to the following dictum of Justice Brandeis in Olmstead v United States 277 US 438, 48 Sct 564, 72 L Ed 944 (1928) and cited in the matter of United States v Toscanino 500 F 2d 267 at 281 where the judge said the following:
"The Court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination".

SWANEPOEL, J

I agree

MULLER, J

ON BEHALF OF THE APPLICANTS					Mr N Tjombe

Instructed by:								Norman Tjombe Law Firm