Court name
High Court Main Division
Case name
Kandombo v Minister of Land Reform
Media neutral citation
[2016] NAHCMD 3
Judge
Angula J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK



JUDGEMENT


Case
no: A 352/2015


DATE:
18 JANUARY 2015


In
the matter between:


DAVID
KANDOMBO
........................................................................................................APPLICANT


And


THE
MINISTER OF LAND
REFORM................................................................1ST
RESPONDENT


THE
MINISTER OF SAFETY AND
SECURITY
...............................................2ND
RESPONDENT


Neutral
citation:
Kandombo v The Minister of
Land Reform
(A 352/2015) [2016] NAHCMD
3 (18 January 2016)


Coram:
ANGULA, DJP


Heard:
15 December 2015


Delivered:
18 January 2016


Flynote
Urgent application for spoliation – principles governing
spoliation considered and applied principles and procedure when
dealing with an occupier of Government land which has been allocated
to a beneficiary under the Government Resettlement Program outlined.


Summary
The applicant occupies a farming piece of land (the Plot)
which he alleges was allocated to him during 2000 by an official from
the Ministry of Land Reform (the Ministry).  He has ever since
been farming thereon, initially with cattle, sheep and goats but
later only with sheep and goats.  During December 2015,
officials from the Ministry accompanied by police officers, together
with representatives from the beneficiary organization to whom the
Plot has been allocated, arrived at the Plot without notice to and in
the absence of the applicant and ordered the farmworker of the
applicant to vacate the Plot including his animals.  The
farmworker complied.  The applicant then approached the court on
urgent basis with, notice to the respondents, seeking for a
spoliation order in the form of a rule nisi.  He alleged
that the matter is urgent, because his farmworker is sleeping in the
open exposed to elements and his animals are without water and food.
 He alleges that he has been in peaceful and undisturbed
possession of the Plot and has been wrongful dispossessed thereof by
the respondents.


 


The
respondents opposed the application disputing that it was urgent;
disputing that the Plot had been allocated to the applicant;
asserting that the applicant was in unlawful occupation of the Plot;
pointing out that the Plot has been allocated to a beneficiary who
must take occupation immediately.  Finally they denied that they
unlawfully deprived the applicant possession of the Plot, because the
farmworker voluntarily vacated the Plot taking with him the
applicant’s animals.


 


Held;
that on the facts of this matter, the matter was sufficiently urgent
justifying the court to hear it as urgent;


Held
further, that the applicant successfully established that he was in
peaceful and undisturbed possession of the Plot and the respondents
wrongfully removed him from such possession or occupation without due
process of law;  and


Held
further, that the conducts of the respondents amounted to acts of
self-help entitling the court to grant the spoliation order.


ORDER


1. 
The non-compliance with rules of the High Court of Namibia relating
to forms and service is hereby condoned and that the application is
heard as a matter of urgency.


 


2. 
The respondents are ordered to restore undisturbed possession and
occupation to the applicant of the plot referred to and marked as No.
40 on the diagram and plan attached hereto as Annexure “
A
and Annexure “A.1,
which plot is situated on Farm Otavifontein No.794 in the Otavi
District, Namibia.





3. 
The respondents are interdicted and restrained from unlawfully
interfering with the Applicant’s possession and occupation of
the Plot referred to and marked as No. 40 on the diagram and plan
attached hereto as Annexure “
A
and Annexure “A.1,
which plot is situated on Farm Otavifontein No. 794 in the Otavi
District, Namibia.





4. 
That the First Respondent pays the costs of his application.





5. 
The reasons for this order will be delivered on
18
January 2016
at 10h00
.


JUDGMENT


ANGULA,
DJP:


Introduction


[1]
This is a spoliation application by the applicant, brought on urgent
basis for a rule
nisi
calling on the respondents to restore to the applicant undisturbed
possession and occupation of Plot 40 of Farm Otavifontein No. 794
Otavi District.  For the sake of completeness it would be
apposite to quote the prayers as it appear in the notice of motion;




1.
Condoning the Applicant’s non-compliance with the Rules of this
Honourable Court and the time periods prescribed therein in so far as
these have not been complied with and directing that matter be heard
as one of urgency.





2. 
That a rule nisi be issued, returnable on FRIDAY 22nd
JANUARY 2016
at 10h00, calling upon the Respondents to
show cause why:


 


2.1 
the Respondents should not restore undisturbed possession and
occupation of Plot 40, Farm Otavifontein No. 794 in the Otavi
District, Namibia by the Applicant;





2.2 
interdicting and restraining the Respondents from unlawfully
interfering the Applicant’s possession and occupation of Plot
40, Farm Otavifontein No. 794 in the Otavi District, Namibia.


 


3. 
Ordering the relief sought in terms of paragraphs 2.1 and 2.2 of the
rule nisi to operate as interim orders with immediate effect,
pending the return day of the rule.


 


4. 
That the Respondents pay the costs of this application.


 


5. 
Granting the Applicant such further and or alternative relief”.


[2]
 The application was served on the respondents on 11 December
2015, through the Government Attorney.  On Monday morning 14
December 2015 the notice to oppose was filed on behalf of both
respondents, but only one answering affidavit was filed on behalf of
the first respondent.  When the matter was called on Monday, 14
December 2015 morning at 9h00, I was requested by the legal
representatives for the parties to postpone the matter, by agreement,
to the following day being Tuesday, 15 December 2015.  The
reasons for the postponement were to allow the applicant’s
legal representative to consider the first respondents answering
affidavit (which was delivered to him the Monday morning just before
the matter was called) and thereafter to file a replying affidavit,
if so wished.  The legal representatives further agreed to, file
heads of argument.  When the matter resumed on 15 December 2015
all the papers had been filed and the matters proceeded as agreed.


 


[3]
A number of points in limine were raised on behalf of the first the
respondent.  It was submitted by Mr Shipena, for the respondents
that these points would dispose the matter without going into the
merits, accordingly these points were considered first.  However
after I have heard the arguments, I dismissed all points in
limine
.  I further ruled that, on the facts before me, the
matter was urgent and that the matter should be heard as such. 
The counsel then argued the merits where after I made the order as
above.  I undertook to furnish my reasons for my order on 18
January 2016.  Following below are my reasons.


 


[4]
Instead of first dealing with points in limine I think it is better
to first set out the parties’ respective merits in order to
provide context for the points
in limine
raised.  Thereafter I will then
deal with the points
in limine
Next I will provide my reasons for holding that the matter was
urgent.  I then will provide my reasons for finding in favour of
the applicant on merits; and finally I will give my reasons for
ordering the respondents to bear the costs of this application.


The
applicant’s case


 


[5]
The background to this application is that, according to the
applicant, he had been farming on plot No. 40 (the Plot) of Farm
Otavifontein No. 794 since the year 2000.  The Farm belongs to
the Government.  The Farm is divided into several plots. 
He attached to his affidavit a copy of the diagram and plan of the
Farm.  He points out that his name was jotted on plan at the
Plot by an official from the Ministry of Lands Reform (the Ministry)
at the time when the Plot was allocated to him by an official from
the Ministry.  He says that initially farmed with cattle, goats
and sheep, however due to drought he sold his cattle and continued to
only farm with goats and sheep which are currently 22 in total.


 


[6]
The applicant states further that on Tuesday, 1 December 2015 police
officers attached to the Otavi Police Station attended at the Plot
and proceeded to cut the padlock on the gate of the entrance to the
Plot.  After the police officer had entered the Plot they broke
the lock to the shed which is partly used as a dwelling for his
farmworker as well as a storage place for his farming equipment. 
When the police officers departed from the Plot, they left behind two
persons on the Plot.  Later when the applicant enquired from the
police officers why they did what they had done, he was informed that
the Plot has been allocated to another person;  that he should
vacate the Plot.  He refused to vacate the Plot. Thereafter on
Saturday, 5 December 2015 he laid a charge of malicious damage to
property at Otavi Police Station.





[7]
The applicant states further that on Wednesday, 9 December 2015
police officers and a Deputy Director from the Ministry one Mr Eric
arrived at the Plot and evicted his farmworker from the Plot and
further drove his animals from the Plot.





[8]
The applicant states further that after he received a telephone call
from his farmworker who related to him what had transpired, he
immediately left for the Plot that same evening (i.e Wednesday, 9
December 2015).  On his arrival at the Plot he inspected what
has had happened on the Plot.  He observed that the fodder and
farming equipment and the personal effects of the farmworker had been
removed from the shed.  He then enquired from the two persons
who had been left on the Plot as to what was happening.  They
informed him that they have been allocated the Plot by Eric from the
Ministry and that henceforth they would be conducting farming
operation on the Plot.


 


[9]
According to the farmworker, Mr Hafeni Kayambu Johannes, he was
pushed off the Plot and in the process the shirt he was wearing was
torn.  The police officers and the officials drove the animals
off the Plot into the corridor of the neighbouring plots of the Farm.


 


[10]
The applicant further states that on Friday, 11December
2015 he tried to telephone Eric at the Ministry but could not get
hold of him.  The applicant then consulted his legal
representative who also tried to get hold of Eric over the phone
without success;  on the very same day, his legal representative
addressed letters to the Station Commander of Otavi Police Station
and to the Ministry respectively, demanding restoration of possession
and occupation of the Plot to the applicant.  Copies of the
letters are attached to the supporting affidavit.


 


[11]
The applicant states further that he was concerned about his animals,
which were without water or grazing since driven from the Plot;  and
that the animals might be stolen.  In particular he was
concerned about the well-being of his farmworker who had, since
evicted from the Plot, been sleeping in the open, exposed to the
elements and have nowhere to cook, eat or bath.


 


[12]
Regarding the urgency of the matter the applicant asserts that the
matter is urgent.  He points out that his farmworker is without
accommodation and is living in the open field;  that his animals
are without water or grazing;  and that had he launched the
application in the normal course, by the time the application would
be heard, his livestock would be dead and he would suffer financial
loss.  Finally the applicant points out that he did not delay in
bringing the application;  that the balance of convenience
favoured the granting of the orders (which at that time of launching
of the application were sought on an interim basis);  and that
he would suffer irreparable loss if the orders were not granted.


 


The
Respondents’ opposition


[13]
As mentioned earlier the Government Attorney filed a notice to oppose
on behalf of both respondents, however only one opposing affidavit
was filed on behalf of the first respondent.


 


[14]
The opposing affidavit on behalf of the first respondent is deposed
to by a Mr Erick Sedney !Goaseb, who says he is employed as Chief
Development Planner at Otjiwarongo and current acting as officer in
charge of Otjozondjupa region responsible for taking care of
Government’s properties particularly commercial farms.


 


[15]
Apart from opposing the merits of the application, the first
respondent has raised a number of points in limine.  As
indicated earlier I will first outline the first respondent’s
case on merits.  I will consider the points in limine
later in the judgment.


 


[16]
It is denied on behalf of the first respondent that the applicant
have had a lawful and undisturbed possession and occupation of the
farming plot.  According to the first respondent the Plot in
question is “
Portion 14 (a portion of
portion 5) (Broken Hill) of farm Otavifontein No. 794

.  It is pointed out that that portion was
only acquired by the Government in 2005 and was allocated to a
certain Mr Thobias Benjamin Berro (Mr Thobias) on 13 June 2006 . 
A copy of the allocation letter from the Ministry is attached. 
It is then argued that it is impossible for the farm to have been
allocated to the applicant in the year 2000 .  It is further
denied that the farm is divided in several plots.  It is pointed
out that the farm was part of the bigger farm but the Government only
bought that particular portion;  and that the copy of the
diagram and plan of the farm, attached to the applicant’s
affidavit are not an official ones as the Ministry uses Demarcation
Plans when allocating farming plots.


 


[17]
The deponent further points out that the farm in question is meant
for crop farming and not for livestock.  He concedes however
that he saw the applicant’s farmworker Mr Kayimbu on the farm
with about 20 to 25 livestock when he visited the farm on 26 November
2015.  He states that the first communication received from the
applicant was a letter dated 24
th
August 2015 addressed to the Governor of Otjozondjupa region which
was received by his officer on 28
th
September 2015 in which the applicant was “
requesting
a possible consideration at Otavifontein plot number 40 farm No. 794
Otjozondjupa region
.  With
reference to this letter he argues that if the plot was already
allocated to the applicant, why would he request a ‘
possible
consideration
in respect of the same
farm.


 


[18]
The deponent further states that on 26 November 2015 he was part of
an investigation team from the Ministry that visited the Plot; that
they found the applicant’s farmworker on the Plot as well as
small livestock.  The farmworker informed the team that he
arrived on the farm earlier in the year.  The farmworker then
provided the team with the cellphone number of the applicant. 
During the telephone conversation with the applicant, the applicant
informed the deponent that he was allocated the farm by Mr Kanyemba,
who was the Head of Lands:  Central Region based at
Otjiwarongo;  that the applicant informed him that he was in
possession of documents to prove his allocation for the plot and
undertook to deliver such documents to the Ministry’s office in
Windhoek.  The deponent further states that while on the Plot
the team noted that the applicant had instructed contractors to
remove pipes and pumps from the Plot.


 


[19]
The deponent went on to say that on 2 December 2015 a team consisting
of officials from the Ministry, officials from the National Youth
Services and members of the Namibia Police went to the Plot to
request the farmworker to leave the Plot.  He further states
that initially the farmworker declined to co-operate, however after
the team explained to the farmworker that the applicant failed to
deliver the documents as proof of the allocation of the Plot to the
Ministry as promised.  However after it was pointed out to the
farmworker that he may be obstructing justice, the farmworker opened
the padlock of the farm gate;  that he packed his belonging and
was assisted by members of the team to carry his belongings to the
farm gate.  According to the deponent the two persons who had
been brought on the Plot on the previous visit and left there, were
from the National Youth Services.


 


[20]
The deponent reiterates that the farm in question was allocated to Mr
Thobias in 2006, but that at Mr Thobias requested in a letter to the
Ministry dated 25 June 2014 to relinquish the farm.  He then
attached a copy of undated letter from the Ministry to Mr Thobias
confirming his request has been approved.  The deponent further
states that the farm plot in question, together with other plots, was
advertised for allocation on application in the newspapers on 14
August 2015;  thereafter the farm was allocated to Wisdom Youth
Organization on 20 November 2015 and was officially handed over to
them on 4 December 2015 .


 


[21]
The deponent denies that the farmworker was asked to leave the farm
on 9 December 2015 but that he was asked to leave the farm on 2
December 2015 .  The deponent further denies that he was on the
Plot on 9 December 2015 .  According to the deponent he spoke to
the applicant’s legal practitioner on 11 December 2015 and
explained to him the events leading to the farmworker leaving the
Plot.


 


[22]
The respondent admits that the letter of 11 December 2000 by the
applicant legal practitioner was received by the Ministry but it was
not possible to respond thereto due to time constrain, however he
denies the facts set out therein.


 


[23]
In response to the merits in the answering affidavit, the applicant
denies that Mr Thobias was previously allocated the Plot.  He
states that he has never seen Mr Thobias nor does he not know him;
and that if the said Mr Thobias was allocated the Plot, he has never
took occupation thereof.


 


[24]
The applicant points out that on the first respondent’s own
version the plot that was allocated to Mr Thobias was plot 14, and
that it is also referred to in the correspondence between Mr Thobias
and the Ministry “
Portion 14 ( a
portion of portion 5) (Brokenhill) of Farm Otavifontein No 794
Groetfontein District
.  The
applicant reiterated that the farm is divided into several small
plots of about 25 hectre; and that the copy of diagram and plan of
the farm indicating the different plots attached to his founding
affidavit was provided to him at the time when the Plot was allocated
to him by the Ministry.


 


[25]
The applicant denies that he gave instructions to contractors to
remove pipes and pumps from the plot;  and explains that what
transpired, was that during November 2015 he caused the pipes in the
borehole to be replaced with new pipes;  and that the old pipes
from the borehole are still on the Plot.  The applicant disputes
that the team consisting of officials from the Ministry, persons from
the National Youth Service and police officers attended at the plot
on 2 December 2015 and asserts that they were at the Plot on 1
December 2015 .  He denies further that his farmworker vacated
the plot on 1 December 2015 or 2 December 2015 and states that the
farmworker was evicted from the Plot on 9 December 2015. 
According to the applicant on Saturday, 12 December 2015 and Sunday,
13 December 2015 he made arrangement with an owner of a neighbouring
plot to water his animals, however the animals are not grazing on a
neighbouring farm.


 


[26]
The applicant’s farmworker, Mr Johannes disposed to an
affidavit which was attached to the applicant replying affidavit. 
He states that he has been employed as a farmworker for the applicant
since 2009;  that ever since he has been residing on the Plot,
looking after the applicant’s animals.  He confirms that
on Tuesday, 1 December 2015 police officers together with officials
from the Ministry attended at the Plot; that they requested entrance
to the Plot which he refused whereupon they broke the padlock to the
gate of the Plot and further broke the padlock to the door of the
shed.  Thereafter they left leaving behind two persons on the
Plot.  On 9 December 2015 officials from the Ministry arrived at
the Plot again and forcibly evicted him from the Plot; that they
drove the animal from the Plot into the corridor of the neighbouring
plots on the same farm; that during the afternoon of 9 December 2015
after he had been evicted from the Plot it rained and he remained in
the open with the animals during the rain;  that he has been
sleeping in the open since 9 December 2015 until 14 December 2015
when he travelled to Windhoek to dispose to the affidavit. 
Finally he states that he was unable to travel to Windhoek to depose
to his affidavit as he could not leave the animals and his personal
belongings without supervision.


 


First
respondent’s points in limine


 


[27]
I now deal with the first respondent’s points in limine
I should  mention that the points are not properly motivated and
as such pose some challenges to properly deal with it to the extent I
understand it.


 


[28]
 The first point is that of non- joinder.  It is alleged
that a certain entity Wisdom Youth Organisation which, is currently
occupying the Plot, should have been joined as a party proceedings. 
It is then stated that Wisdom Youth Organisation is an interested
party and failing to join it would prejudice it if the orders sought
by the applicant are granted without Wisdom Youth Organisation being
a party to the proceedings.  In his replying affidavit the
applicant, denies that the Plot is occupied by Wisdom Youth
Organisation;  that there are no other person or entity who or
which is currently occupying the Plot except the two persons who are
stationed there since Wednesday, 9 December 2015.  The applicant
points out that on the first respondent’s own version, the plot
allocated to Wisdom Youth Organisation is plot 14 of Farm
Otavifontein and not Plot 40.  The applicant further points out
that his legal representative requested to be provided with the names
of the persons who have been allocated the Plot but was refused such
information.  In his heads of arguments Mr Shipena for the first
respondent referred to some known case law to support his point in
this respect.  But having considered those cases I am of the
view that the principles set out there are not applicable to facts of
this case.  I agree with the applicant that it was not possible
to join Wisdom Youth Organisation, because its identity was not known
to the applicant at the time when the application was launched. 
Furthermore it would appear on the facts before me that Wisdom Youth
Organisation has been allocated a different Plot from that which is
the subject matter of this application.  Finally the legal
representative for the respondent refused or failed to provide the
legal representative for the applicant with particulars of the person
who had allegedly been allocated the Plot.


 


[29]
Having considered the facts before me on this point I cannot, but
agree with the applicant’s submission that there is not merits
in this point and thus stands to be dismissed.


 


[30]
The second point in limine is that a dispute of facts exists,
which the applicant ought to have foreseen when he decided to launch
this application.  It is then submitted on behalf the first
respondent that the applicant adopted a wrong procedure.  In
response to this point in limine the applicant points out that
an urgent application can only be brought by way of application and
not by action;  that if a dispute of fact arises the rule is
well established that in that case that specific dispute is referred
to oral evidence on application for resolution.  I agree with
applicant’s submission.  In the absence of an application
for referral to oral evidence the dispute is to be resolved in
accordance with well-established rules in motion proceedings on the
basis of what is contained in the respondent’s affidavit where
the facts are in dispute.  Stated differently, take the facts
set out by the applicant, together with the facts set out by the
respondent which the applicant cannot dispute.  There are
similarly no merits in this point and it has been wrongly taken and
as such stands to be dismissed.


 


[31]
The third point in limine is that the requirements for
spoliation have not been met, in that the applicant has not had
undisturbed possession of the plot since the year 2000;  that
the farmworker moved off the plot without any force asserted on him;
and that the applicant resides in Windhoek although he need not be in
physical possession, he appears to be ‘out of touch with the
property’.  In view, this is not a point in limine,
it goes to the merits of the application.  The fact that the
applicant resides in Windhoek does not mean that he is not in
possession or occupation of the plot.  It is trite law that a
person is not required to be in physical possession of the thing like
an immovable property to be said that he is exercising possession of
such property.  It is considered in law to be sufficient if the
person has some degree of control over the thing or property.  In
the instant matter the applicant is conducting on going farming
activities on the plot and has been doing so for some years and he
has a full-time employee on the plot.  Similarly this point
lacks merit and stands to be dismissed.


 


[32]
The fourth point in limine is that the applicant has tendered
in admissible hearsay evidence is that the applicant does not have
first-hand knowledge of all the facts as to what happened on the Plot
and because several facts he has deposed to have not been verified by
a confirmatory affidavit by the farm worker.  The applicant has
stated in his founding affidavit that due to the urgency of the
matter, he has been unable to secure a confirmatory affidavit from
his farmworker;  that he had no reason to doubt the veracity and
accuracy of what his farmworker had reported to him.  It is to
be noted that the applicant says that he proceeded to the plot during
the same evening of Wednesday 9 December 2015 immediately after he
received the report from his farmworker as to what have had
happened.  He relates what he found on the Plot.  In any
event the farmworker’s affidavit have been filed in reply which
wiped out this point.  Accordingly in my view there are no
merits in this point and must equally be dismissed.


 


[33]
The fifth point in limine is that the requirements for an
interim interdict have not been met in that the applicant does not
have a prima facie right, because at no stage since the year
2000 was the plot allocated to him, that the applicant does not have
a well-grounded apprehension of irreparable harm, because his goats
and sheep are not in the open they are not likely to die as they are
grazing within privately owned neighbouring farm and the farmworker
is also residing on that neighbouring farm;  that the balance of
convenience does not favour the granting of an interim order. 
Furthermore the person who had been allocated the plot have already
moved onto that plot and have commenced with farming activities and
would therefore suffer inconvenience;  and finally that the
applicant has alternative remedy in that he could bring the
application in the normal course.  In my view this is not a
point in limine;  the issues raised by this point again
go to the merits of the application.  The point is accordingly
dismissed.


 


Urgency


 


[34]
I now proceed to deal with the issue of urgency.  One of the
most important requirements to be satisfied by the applicant before
the court grants condonation for the matter to be heard on urgent
basis is that, the court must be satisfied on the alleged facts that,
the applicant cannot be afforded substantial redress in due course.
 The facts upon which the applicant relies for urgency in this
matter are incontrovertible both as it relates to the farmworker’s
situation and to the applicants animals.  The situation becomes
even worse if viewed against the conducts of the respondents, which
conducts are
prima facie
unlawful in a society based on the rule of law.  On the facts
before me I am satisfied that the applicant cannot be afforded
substantial redress at the hearing in due course.  The deponent
to the first respondent affidavit points out that the applicant has
delayed to bring this application is that the farmworker was
requested to leave the farm on 2 December 2015 and he only brought
the application on 11 December 2015.  He concedes however that
the applicant was not provided with eviction papers, but argues that
the applicant was not evicted from the plot. 
According
to the applicant, the events leading immediately up to the spoliation
started unfolding on 1 December 2016 when police officers attended at
the Plot and broke the padlocks on the gate to the farm and when the
applicant enquired from the police officers why they forcefully
entered the Plot he was informed that the farm has been allocated to
another person.  In response to this allegation it is simply
stated in the respondent’s answering affidavit that “the
contents of this paragraph is placed in dispute”.  It is
not clear what specific allegation is disputed.  However in the
next paragraph when the applicant mentioned the names of the police
officers the deponent to the first respondent’s affidavit
admits the presence of the police officers on the Plot except that he
cannot confirm their identities.  He further confirms that two
persons were left on the Plot by the police officers as caretakers
from the National Youth Services.  The deponent insists that the
eviction took place on 2 December 2015.  In this respect he
states the following is stated ‘On 2 December 2015 a team
consisting of Ministry of Land Reform officials went to the farming
plot to request the farmworker to leave the plot’.  He
does not say that he was part of the team.  He does not state
the source of his knowledge of the date when he alleged the eviction
took place.  He says however that he was not on the farm on the
9 December 2015.  It is not clear on what facts does he deny
that the eviction took place on 9 December 2015.  Against the
vague and unsubstantiated bald statement on behalf of the first
respondent one has a detailed and direct facts from the applicant and
his farmworker that the eviction took place on 9 December 2015.  The
farmworker was present when the eviction took place.  He
informed the applicant immediately after the eviction had taken
place.  The applicant says he left for the farm the same evening
after he received the report from the farmworker.  In my view
the probabilities favour the applicant’s version on this
point.  I thus accept that the eviction took place on 9 December
2015.  In the light of this finding and taking into account that
Thursday, 10 December 2015 was a public holiday and the application
was prepared and finalised and served in one day, Friday 11 December
2015, I am satisfied that the application was brought as soon as it
was possible.  In my view there was no undue delay in launching
the application.  I am further reinforced in my view by
following pronouncement the court cited with approval in the Wylie
matter:


It
is now accepted that an application for spoliation is urgent by its
very nature.  It exists to preserve law and order and to stop
reverse self-help in the resolution of dispute between parties
[1]


 


[35]
It is denied that the balance of convenience favour the granting of
the orders.  In motivation of its denial it is stated on behalf
of the first respondent that Wisdom Youth Organisation who have been
allocated the plot have already moved onto the Plot on 4 December
2015, as they were required to do so within 30 days from the date of
allocation.  Finally it is pointed out that the plot is for
designated for crop farming; that production (perhaps meant planting)
begins in November/December if the new occupants were ordered to
vacate the Plot it would delay ‘production’ for the rest
of the year.  In my view the dire situation in which the
applicant found himself far out weight the temporary inconvenience to
be suffered by the beneficiary, however they would be able to receive
redress in due course. In my view, the balance on convenience favours
the granting of the orders in favour of the applicant.


 


[36]
It was for those reasons that I ruled that the matter was urgent and
condoned non- compliance with the Rules and the time periods
prescribed by the Rules.


 


[37]
I now proceed to consider the merits.  There are many Namibian
judgments dealing with spoliation matters such as
Ruch
v Van As
[2];
 
Kuiiri
and Another v Kandjoze and Others
[3];
 
Horst
Kock trading as Ndhovu Safari Lodge v R Walter trading as Mahangu
Safari Lodge and Others
[4];
 
Anton
Kazaronda Kandjima and Another v David Kakero
[5];
 
and
Junias v The Municipal Council of the Municipality of Windhoek
[6],
which all have reference to the South African case of
Nino
Bonino v De Lange
[7]
which
all have accepted as sources of authority on the topic of spoliation.


 


[38]
I will try to summarise, not necessarily in any order of priority or
importance, the principles emanating from those judgements:


 


1. 
In spoliation proceedings it is only necessary to prove that the
applicant was in possession of a thing (movable, immovable or
incorporeal) and that there was a forcible or wrongful interference
with his or her possession of that thing;


 


2. 
The purpose of the remedy is to preserve law and order and to
discourage persons from taking the law into their own hands;


 


3. 
To give effect to the objectives of the remedy it is necessary for
the status quo ante to be restored until such time a court has
assessed the relative merits of each party;


 


4.
The lawfulness or otherwise of the applicant’s possession of
the thing does not fall for consideration during the hearing of the
spoliation application, the question of ownership in the thing is
equally not considered;


 


5. 
The applicant for a spoliation order must establish that he/she was
in peaceful and undisturbed possession of the thing at the time
he/she was deprived of possession;


 


6. 
The words ‘
peaceful and undisturbed
possession mean sufficient stable or durable
possession for the law to take cognisance; and


 


7. 
As a form of remedy spoliation is not concerned with the protection
of rights “
in the widest sense.


 


[39]
 I now proceed to apply some of the principles summarised above
to the facts on this application.  Was the applicant in peaceful
and undisturbed possession of the Plot prior to being evicted?  The
applicant states that he has been farming on the Plot since 2000;
 that the farm belongs to the Government; that the farm is
divided in small plots but he was allocated Plot 40.  The
applicant has attached a copy of the diagram and plan of the farm
from which it appears that the farm is indeed divided into small
plots.  His name is jotted on the plan at Plot 40.  The
respondent appears to be disputing that the applicant has been in
possession of Plot 40 since 2000.  However the farm was only
acquired by the Government during 2005 and subsequently allocated to
Mr Thobias in 2006.  It appears that the respondent has no basis
to dispute that the Plot was occupied by the applicant between 2000
and 2006.  However on the respondent own version Mr Thobias
handed back the Plot to the Ministry on or about June 2014.  The
deponent visited the Plot on 26 November 2015 as was part of the
investigation team from the Ministry which visited the Plot.  They
found the applicant’s farmworker on the Plot as well as small
livestock.  The farmworker told the team that he had been on the
Plot since earlier in the year but could not provide them with an
exact date.  I interpose here to point out that according to the
farmworker he has been a farmworker for the applicant since 2009 and
has ever since been residing on the farm looking after the
applicant’s livestock.  During the telephone conversation
to the applicant in Windhoek the applicant informed the deponent that
the Plot was allocated to him by Mr Kanyemba a Deputy Director in the
Ministry when he was Head of lands in Otjiwarongo region.  The
applicant informed him that he was in possession of documents to
prove his allocation.  On the respondents own version the
applicant was in occupation of the Plot on 26 November 2015 to 2
December 2015.  I however consider it highly probably on the
facts of this case that the applicant had been in possession of the
Plot prior to 26 November 2015.  In my view all the foregoing
facts prove that the applicant was in peaceful and undisturbed
possession of the Plot, immediately prior to the date he was
dispossessed of the Plot.


 


[40]
 Regarding the question whether the applicant was unlawfully
deprived of possession, there is slight dispute of facts as to the
date when the eviction took place.  I have already found that on
the probabilities that the applicant was deprived of possession of
the Plot on 9 December 2015.  Even if I am wrong on that point
the exact date when the eviction took place is not material, what is
important is to establish whether the facts alleged, prove that the
applicant was wrongfully deprived of his peaceful possession of the
Plot.  According to the deponent to the first respondent’s
affidavit, on the day of the alleged eviction took place a team of
officials the Ministry, officials from the National Youth Services
together with police officers went to the Plot “
to
request the farmworker to leave the plot
.
 This means to me that the whole purpose of the team’s
mission was to evict the farmworker from the Plot; it was a follow-up
on the previous mission which took place on 1 December 2015, when the
police officers forcefully gain access to the Plot and shed and left
caretakers on the Plot.  According to the farmworker he was
forcibly evicted from the Plot;  he was pushed of the premises
and in the process the shirt he was wearing was torn.  The
officials drove the animals from the Plot into the corridor of the
neighbouring plots on the same farm.  The respondent’s
version around this issue is that initially the farmworker declined
to co-operate;  that it was explained to him that his employer,
the applicant failed to deliver documents he had promised to do;
 that the farmworker might be obstructing justice;  that it
was only then that the farmworker unlocked the padlock on the plot
gate went to pack his personal belongings and was assisted by the
team members to carry his belongings to the gate to the plot.


 


[41]
 Mr Shipena for the respondents submits that the respondent did
not take the law in their own hands, because it was the applicant’s
farmworker who unlocked the padlock of the gate to the Plot thus
facilitating access by the members of the team to the farm.  It
is necessary to point out implicitly in this argument is the
admission that the farmworker was in possession of the plot is that
the gate was secured with padlocks thus regulating access to the
plot.  Furthermore on the respondent’s own version the
farmworker initially declined to co-operate and it was only after
being informed that he might be obstructing the course of justice
that he voluntarily decided to leave the Plot.  In my view the
farmworker did not act voluntarily; he was put under pressure to
leave.  Even if it were to be accepted that the farmworker
decided to voluntarily leave the Plot surely his action cannot be
attributed to the applicant who was effectively the occupier or
possessor of the Plot.  There is no allegation that the
farmworker was authorised to act on behalf of the applicant or a
mandate from the applicant to consent to give up occupation of the
Plot.


 


[42]
 I have no doubt in my mind that for any person to tell a
farmworker in the presence of police officers under those
circumstance that he might be obstructing justice that such a
statement would amount to a veil threat.  It was meant to serve
as some sort of coercion on the farmworker to leave the Plot. 
It was a deception.  In my view, it was the team which was
acting contrary to law.  It is admitted by the respondent that
it is correct that the applicant was
not provided with eviction papers
.
 The truth of the matter is that there were no eviction papers.
 Neither the police nor officials from the Ministry have the
right to evict an occupier of Government land from such land without
first obtaining an eviction order.  On those facts I am
satisfied that the applicant has been forcibly and wrongfully
deprived of possession of the Plot by the respondents.  The
eviction took place without due process of law;  it was done
without first obtaining an eviction order.  I found on the facts
of this matter that the eviction was clearly an act of self-help.


 


[43]
 There is a small matter which I think I should deal with. 
On the papers there appears to be some confusion with regard as to
the correct description of the land/plot which is the subject matter
of this application.  On the one hand, according to the
applicant papers the Plot is described as Plot 40 of Farm
Otavifontein, No 794, situated in Otavi district.  On the other
hand, according to the respondent’s papers the Plot is
described as Portion 14 (portion of portion 5) (Broken Hill) of Farm
Otavifontein No. 794.  The applicant says that he has been
uninterruptedly farming on that Plot 40 since 2000.  He does not
know Mr Thobias whom according to the respondent was allocated the
plot during 2006 neither has he seen Mr Thobias over those years. 
The respondent says that Mr Thobias relinquished the Plot in June
2014.  The view I take on this apparent dispute of facts is
this:  for the purpose of this matter the applicant was forcibly
removed by the respondents from a piece of land which he had been
peacefully occupying, whatever its correct description of that piece
of land.  It is common cause that on 26 November 2015 the
applicant’s farmworker and his animals were found by the
officials from the Ministry and police officers in peaceful and
undisturbed in possession and occupation of that piece land.  Again
on 1 December 2015 the applicant’s farmworker was found in
occupation of the same piece of land by police officers from Otavi. 
It is the same piece of land from which the applicant was forcibly
and wrongfully removed by the respondents.


 


[44]
 In view of the fact that the Government Resettlement
Program (the program) is the on-going program and is likely to
continue for a considerable period in future and in view of what
happened in this matter it might be helpful to set out some legal
principles and procedure which should be adhered to in the
implementation of the program.  If a piece of land has been
allocated to a beneficiary through the program, and such piece of
land is occupied by someone who is claiming some right of occupation
or simply in occupation of such piece of land, the Government, as the
lawful owner of the piece of land must apply to court for an eviction
order against such occupier before the Ministry can proceed to settle
the beneficiary on such piece of land.  It must be kept in mind
that it is not permissible in law, as it happened in this matter, for
the Ministry officials or any Government agency, such as the police,
to simply force the occupier to vacate the piece of land without a
court order as such conduct, in law, amounts to self-help or taking
the law into own hands.


 


[45]
 In my view the applicant has established that he was in
peaceful and undisturbed possession of the Plot 40 of Farm
Otavifontein No. 798 Otavi and that he was forcibly and wrongfully
dispossessed on such possession by the respondents.  Accordingly
he is entitled to an order restoring the status quo ante.


 


[46]
 Finally regarding the question of costs, the applicant has
substantially succeeded in his application.  The normal rule is
that cost follows the results.  I cannot see any reason why that
rule cannot apply in this matter, neither was any reason to the
contrary advanced to me.  Accordingly the respondents are
ordered to pay that costs of this application.


 


1. 
The non-compliance with rules of the High Court of Namibia relating
to forms and service is hereby condoned and that the application is
heard as a matter of urgency.


 


2. 
The respondents are ordered to restore undisturbed possession and
occupation to the applicant of the plot referred to and marked as No.
40 on the diagram and plan attached hereto as Annexure “
A
and Annexure “A.1,
which plot is situated on Farm Otavifontein No.794 in the Otavi
District, Namibia.


 


3. 
The respondents are interdicted and restrained from unlawfully
interfering with the Applicant’s possession and occupation of
the Plot referred to and marked as No. 40 on the diagram and plan
attached hereto as Annexure “A
and
Annexure “A.1
, which plot is
situated on Farm Otavifontein No. 794 in the Otavi District, Namibia.


4. 
That the First Respondent pays the costs of his application.


 


5. 
The reasons for this order will be delivered on 18 January 2016
at 10h00 .





It
is so ordered.



H Angula



Deputy Judge
President





APPEARANCES:


APPLICANT:
Mr N Tjombe


Instructed
by Tjombe-Elago Incorporated


FIRST
and SECOND Mr NTK Shipena


RESPONDENTS:
Instructed by Government Attorney



[1] 
Wyliie
v Villinger

(A42/2012 [2012] NAMHCCMD 69 (13 February 2013).




[2]
Ruch
v Van As

1996 NR 345 (HC)




[3]
Kuiiri
and another v Kandjezo and Others

2007 (2) NR 749 .




[4]
Horst
Kock trading as Ndhovu Safari Lodge v R Walter trading as Mahangu
Safari Lodge and Others

2011 (1) NR 10 SC.




[5]
Anton
Kazaronda Kandjima and Another v David Kakero

(unreported judgement of the High Court of Namibia of 9 August
2011).




[6]
Junias
v The Municipal Council of the Municipality of Windhoek

(A 35/2014) [2014] NAHCMD 80 (12 March 2014).




[7]
Nino
Bonino v De Lange
1906
TS 120 .