Court name
High Court Main Division
Case number
APPEAL 263 of 2014
Title

Ntuko v Mbango (APPEAL 263 of 2014) [2014] NAHCMD 322 (02 October 2014);

Media neutral citation
[2014] NAHCMD 322
Coram
Smuts J










REPUBLIC
OF NAMIBIA






HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK






JUDGMENT






Case
no: A 263/2014






DATE:
02 OCTOBER 2014






In
the matter between:






JOHANNES
T
NTUKO...........................................................APPLICANT






And






SAMUEL
MBANGO.....................................................1ST
RESPONDENT






OMUTHIYA
TOWN COUNCIL....................................2ND
RESPONDENT






Neutral
citation: Ntuko v Omuthiya Town Council (A 263/2014) [2014] NAHCMD
322 (2 October 2014)






Coram:
SMUTS, J


Heard:
2 October 2014


Delivered:
2 October 2014






Flynote:
Spoliation application. Requisites
restated. Applicant failing to establish possession. Application
dismissed.






ORDER


That
the application is dismissed with costs.






EX
TEMPORE JUDGMENT






SMUTS,
J






[1]
This is a spoliation application brought by the applicant on an
urgent basis to this court.






[2]
The applicant seeks an order restoring possession of a number of
items set out in paragraph C of the notice of motion which I do not
intend to fully set out for current purposes.  These items
include fencing, building materials as well as bedding and clothes. 
The applicant also seeks an order directing the 2nd
respondent to re-erect what is termed his house and to re-erect a
perimeter fence and to restore the status quo ante, and that
these orders should apply with immediate effect pending the outcome
of the rule nisi.  The application was launched on Friday
26 September 2014 and set down for Monday 29 September. When it was
called, Ms Feris appeared for the respondents and sought time for
them to be able to answer to the allegations. The respondents were
then put on terms to do so by 1 October and the matter was set down
for the next day, today.






[3]
The respondents filed answering affidavits on 1 October and the
applicant replied in the short time available to him.






[4]
The applicant did not apply for further time to supplement that
reply. Nor did he apply for a referral of the matter for evidence.






[5]
Mr Namandje who appeared for the respondents submitted that a final
order should be granted if the court were to find that the applicant
had met the requisites for spoliation relief and that it would not
thus serve any purpose to issue a rule nisi in the
circumstances as the respondents had answered to the allegations.






[6]
I now turn to the facts set out in the papers.






[7]
The applicant is the headman for the Onaanda village in the area of
Omuthiya. The 1st respondent is the Chief Executive
Officer of the Omuthiya Town Council which is cited as the 2nd
Respondent. It is the local authority for that area, duly constituted
under the Local Authorities Act, 23 of 1992.






[8]
The applicant’s case is that he permanently occupies premises
which comprise what he terms as “my house and property”,
referred to as his premises in his papers.  He says that he has
done so since his mother has passed away in 2013. He further states
that he regards the house as his permanent residence.  He states
that on 19 September 2014, while he was away at work, the respondents
demolished his house and removed the perimeter fence and took away
the movable property contained in the structure (including its
components) on those premises, as well as removing his water
infrastructure. He further states that the respondents stole the
property listed in the notice of motion and in his affidavit.






[9]
As I have indicated, he stated that this happened on 19 September
while he was away at work in Rundu. The respondents admit removing
certain of the items but in far smaller quantities then those set out
in notice of motion. They deny the removal of most of the movable
property.  The respondents however in their answering affidavits
squarely place in issue that the applicant was in peaceful and
undisturbed possession of those items and the premises.






[10]
In the answering affidavit, the respondents first give some
background with reference to their dealings with the applicant. In
setting out that background, the respondents state that the applicant
erected a house on a different piece of land which also belongs to
the local authority namely the Omuthiya Town Council.


 


[11]
The respondents state that the applicant, having erected that house
on the local authority property, the 2nd respondent
decided to compensate the applicant in a sum exceeding N$ 167 000 in
2012 for that structure and for him to remove it within a reasonable
time.  They state that he however continued staying there and
residing at that house to date. In the replying affidavit it is
stated that these allegations are irrelevant. It is of course correct
that the title to be present on premises is irrelevant in spoliation
proceedings and that it would be clearly irrelevant whether or not
the applicant was occupying other land of the local authority where
the local authority disputed his title to do so. 






[12]
What is however in my view highly relevant is the allegation that the
applicant resided and stayed in that structure on that other piece of
property.  The applicant in his replying affidavit however
denies residing there and went on to state


It
would appear that the respondents cannot positively state where I
reside, because they also alleged that I permanently reside on plot
48 which is purportedly also the property of the 2
nd
respondent”.


(The
reference to plot 48 concerned an allegation raised by the
respondents that his mother had illegally occupied plot 48 and had
erected a structure there which the applicant also occupied.) But in
this statement, the applicant would appear to misapprehend the nature
of the burden of proof in matters of this nature.  It is not for
the respondents to show where the applicant resides. It is for the
applicant to establish on a balance of probabilities peaceful and
undisturbed possession of the property from which the applicant
alleges he was spoliated. Ms Van Wyk for the applicant correctly
accepted in argument that the applicant has the burden to establish
the requisites of spoliation.






[13]
The respondents further stated in their answering affidavit that
photographs were taken of the premises before the removal of the
structure. It was stated that this occurs as a matter of course
before removals take place. The dates reflected on the photographs
support that contention, because they are all dated 19 September
2014.






[14]
The respondent’s answering affidavit provides a description of
the premises as a ‘
shack
and denies that the applicant permanently resided
in it.






[15]
The first respondent goes on to state:


The
shack was in the process of being built and was at all times
unoccupied.  The Applicant in fact moved into one of his late
mother’s houses after she had passed on and still resides there
and sometimes at his alleged dwelling in respect of which he was
compensated.






It
is also evident from the photographs that the area in which he
erected the illegal shack was just recently debushed. The bushes are
still laying around and have not yet been removed.’






[16]
The photographs support the description which the respondents give of
the premises. It clearly looks like there has been recent excavation.
The item referred to as a shack I would describe as a shed. Its
natural floor inside is of the ground, where there is some grass. 
Mr Namandje, who appeared for the respondents, referred me to that
grass.  The grass itself on the colour photographs is green in
colour. That would not be consistent with a structure having been
there for some time, and on the applicant’s version since the
previous year.  The photographs also depict plastic on the
ground on which cement is placed.  There are also pieces of cut
corrugated iron which Mr Namandje submitted with some force supported
the contention of the erection of a recent structure.  But what
is compelling to me from the photographs is that there is simply no
evidence whatsoever of any human habitation.






[17]
In the replying affidavit, it is not disputed that the photographs
depict the structure, but it is stated that they have been selected
to support the respondent’s version. It is not however stated
in what respects they are either selective and do not properly depict
what was there, except with reference to bedding and other items
which the respondents deny removing.






[18]
The applicant in paragraph 17 of the replying affidavit reiterates
that he resided in the shack ‘
and
most of the time when I was not present and when I was working away,
my employees Martin and Shikongo occupied the premises
.


 


[19]
He further states that,
I admit that
I was in the process of building a more permanent home on the
premises
. But he denies that the
structure was used to store building and fencing material.






[20]
There is no statement by the applicant that the employees in question
were in occupation at the time of the removal and that they did so on
behalf of the applicant.  There is on the other hand the
unequivocal statement made by the respondents that the premises were
entirely unoccupied.  There were also no affidavits from these
employees.






[21]
I turn now to the test in matters of this nature and to the
applicable legal principles.  As was stressed recently in a
judgement of this court with reference to authority in Junias and
Another –v- the Municipal Council of the Municipality of
Windhoek
of 12 March 2014, this remedy is a possessory remedy to
address spoliation which is the wrongful deprivation of the right to
possession whether with regard to movable or immovable property. 
In this instance the applicant only seeks a restoration of possession
of movable property as I understand the notice of motion.






[22]
The underlying rationale for the remedy as I also stressed during
argument is that no one should resort to self-help or taking the law
into their own hands to obtain or regain possession.  Once an
order is given, it is in the form of a final order which determines
the right to immediate occupation once an applicant can establish the
requisites for that relief, being peaceful and undisturbed possession
and the wrongful deprivation of that possession.






[23]
Now in these proceedings it has not been contested that there was a
form of deprivation in the sense that some items had been removed.
But what has been placed in issue throughout, as I have already
stressed, is the element of possession which needs to be
established.  As both sides correctly accepted, the causa
of possession is irrelevant in proceedings of this nature. Even an
illegal occupant’s possession is protected if that possession
was peaceful and undisturbed.  As I pointed out to Mr Namandje
in argument, the authorities make it clear that it would be
sufficient for an applicant to establish factually holding a thing,
in other words the concept of detentio, with the intention of
securing some benefit for himself.  But what must be established
is that, even though possession need not be physical or personal as
Ms Van Wyk correctly submitted, it needs to be effective. That is
what the authorities have clearly established. (The Law of South
Africa, Volume 11 (2nd ed) at 438 and the authorities
collected in footnotes 7, 8 and 9 on p438.)






[24]
Turning to the facts of this case, the applicant has not in my
opinion established that the shed or the structure was possessed to
the exclusion of everyone else. This could have been established if
it had been locked. But there is no allegation to that effect. 
Furthermore, the applicant himself was not there at the time the
deprivation occurred. Nor were his employees. There is no evidence of
any detentio to the exclusion of others by locking or some way
of preventing access or physical possession by others.






[25]
There is also an unexplained aspect relating to the applicant’s
work and where in fact he works. The only allegation was that he was
working in Rundu at the time this occurred. In view of the challenge
to his possession and to residing there, I would have expected this
issue to be further explained in reply.






[26]
In applying the test in
Plascon
Evans
[1]
with regard to disputed facts in motion proceedings and having regard
to the photographs of the area, and in the absence of any application
to refer to oral evidence the respondent’s version of the
structure being unoccupied at the time of its removal is to be
accepted. The photographs are also consistent with that version.
Applying the test in
Plascon
Evans
,
it would follow that the applicant has in my view not established
possession in the sense required by this remedy in the form of
detentio
to the exclusion of others.






[27]
Whilst it is clearly not permissible for local authorities to take
the law into their own hands by forcibly removing structures and
especially those where there is human habitation without first
obtaining a court order, I must also point out that the court cannot
condone the illegal invasion or occupation of land belonging to local
authorities, because the latter is equally inimical to rule of law
which is at the very heart of the constitutional dispensation in this
country.






[28]
In all of these circumstances and applying the Plascon Evans
test, I conclude that the applicant has not met the requisite of
establishing peaceful and undisturbed possession for the purpose of
spoliation. It would follow that the application should be dismissed.






[29]
The respondents seek costs. I see no reason why costs should not
follow the event. The dismissal of this application is accompanied by
a party and party cost order.  I also note that Mr Namandje has
on behalf of the respondents tendered the returned to the applicant
against proof of ownership the items which are currently in
possession of the respondents. 






[30]
It follows that the order which I make is:


The
application is dismissed with costs.


D
F Smuts






Judge






APPEARANCES






APPLICANTS:
C Van Wyk


Instructed
by Legal Assistance Centre






RESPONDENT:
S Namandje


Instructed
by Sisa Namandje & Co. Inc.







[1]
Plascon-Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd 1984 (3) SA
623 (A).