Court name
High Court
Case number
224 of 2011
Title

Municipal Council of Windhoek v Khaoseb and Others (224 of 2011) [2012] NAHC 137 (01 June 2012);

Media neutral citation
[2012] NAHC 137
Coram
Corbett AJ















NOT
REPORTABLE



CASE NO. A 224/2011


IN
THE HIGH COURT OF NAMIBIA





In
the matter between:

















THE
MUNICIPAL COUNCIL OF WINDHOEK






APPLICANT














and





ANDREAS
KHAOSEB
…...................................................................1st
RESPONDENT


MOSES
ABRAM
…............................................................................2nd
RESPONDENT


CHRISTINA
KARISES
…...................................................................3rd
RESPONDENT


MARTHA
GAWANAS
…....................................................................4th
RESPONDENT


FESTUS
GAOSEB
….........................................................................5th
RESPONDENT


HANNES
JACOBS

….........................................................................
6th
RESPONDENT


HANS
/HOXOBEB
….........................................................................7th
RESPONDENT


JEFRIED
UIRAB
…............................................................................8th
RESPONDENT


CHIEF
JOSEPHAT GAWANAB (NO)
…............................................9th
RESPONDENT


/KHOMANIN
TRADITIONAL AUTHORITY

…..................................
10th
RESPONDENT


OTHER
OCCUPIERS OF WINDHOEK TOWN AND


TOWNLANDS
NO. 31 ALSO KNOWN AS COMMO-


NAGE
FARM NO. 3 WHOSE OCCUPANCY IS UN-


AUTHORISED
BY THE MUNICPAL COUNCIL OF


WINDHOEK
…..................................................................................11th
RESPONDENT





CORAM:
CORBETT, A.J





Heard
on: 9 NOVEMBER 2011





Delivered
on: 1 JUNE 2012


______________________________________________________________





JUDGMENT






CORBETT, A.J: .







[1] On 5 September 2011 the applicant
brought an application on an urgent basis to evict the first to
eighth respondents, and the eleventh respondent from their occupation
of a farm owned by the applicant, known as Windhoek, Town and
Townlands No. 31, and also known as Commonage Farm No. 3 (“the
farm”) situated in the District of Windhoek. The Court granted
condonation in respect of urgency and issued a rule nisi (per
my brother Swanepoel J) returnable on 23 September 2011 requiring the
respondents to show cause why:







3.
The first to the eighth and eleventh respondents not be evicted from
the applicant’s farm, being Windhoek Town and Town Lands No. 31
also known as Commonage Farm No. 3 situated 15 kilometres along the
Daan Viljoen road in the municipal jurisdiction of Windhoek.







4.
The date by which the first to the eighth and eleventh respondents
must vacate the said farm is 23 September 2011.







5.
The applicant or any of its agents is/are authorised to demolish,
remove and dispose of structures and buildings erected or occupied by
the first to the eighth and eleventh respondents on or after 24
September 2011.







6.
That the first to eighth and eleventh respondents are interdicted and
restrained from erecting any structures or buildings on the said farm
after the eviction order set out in prayer 4
supra.







7.
In the event that any other person occupies the applicant’s
farm after this notice of motion has been served on the respondents,
it is ordered that that person be evicted and authorizing the
Deputy-Sheriff of this Honourable Court to demolish, remove and
dispose of that person’s structure or building on or after 24
September 2011.







8.
That the first to the eighth and eleventh respondents are interdicted
and restrained from occupying the applicant’s farm after their
vacation from the said farm without the consent of the applicant.







9.
That the ninth respondent is interdicted and restrained from
relocating and/or settling any person on the applicant’s farm
or instigating, aiding and abetting any person to relocate or settle
at the applicant’s farm being Windhoek Town and Town Lands No.
31 also known as Commonage Farm No. 3 situated 15 kilometres along
the Daan Viljoen road in the municipal jurisdiction of Windhoek.







10.
That service of this order be effected by the Deputy-Sheriff on all
the respondents and the persons referred to in paragraph 7
supra
as well as by the publication
thereof in the Republikein and the Namibian newspapers.







11.
That any notice of opposition and answering affidavit(s) be filed by
no later than 16 September 2011 at 12h00 and any replying
affidavit(s) thereto on or before 21 September 2011 at 12h00.







12.
That should any of the respondents oppose this application, such
respondents shall be liable jointly and severally to pay the costs of
this application.







[2] When the matter served before me
on 23 September 2011 application was made by the applicant to
postpone the matter and to extend the rule nisi to 7 October
2011. I granted this application. Thereafter the matter was further
postponed and the rule nisi extended to 9 November 2011 for
hearing.







[3] At the hearing it was confirmed
that the applicant no longer sought a confirmation of the order
against the sixth and eighth respondents. This issue was resolved on
the basis that the applicant withdrew the application against such
respondents and that each party would bear its own costs in the
matter.







[4] The history of the matter is
briefly as follows. The applicant is the Municipal Council of
Windhoek, a local authority constituted in terms of the Local
Authorities Act, No. 23 of 1992. The applicant is the owner of the
farm, a fact not disputed by the respondents. In the past the
applicant has rented the farm out to various individuals and
entities. The farm itself consists of approximately 8000 hectares and
includes a homestead, three boreholes and five cattle posts. Such
leases generate an income for the applicant.







[5] In May 2011 the employees of the
applicant noticed that certain individuals had occupied the farm, had
erected dwelling structures on the farm and were grazing their
livestock there. Neighbouring farm owners had complained about this
uncontrolled state of affairs. Officials of the applicant spoke to
the persons who had occupied the farm, including the first to fifth
respondents, the seventh respondent and the eleventh respondent
informing them that they were contravening the law as they had no
right to occupy the applicant’s farm without the applicant’s
consent. The farm was visited several times, also with the
Superintendent of the City Police, and the respondents were ordered
to demolish the structures and vacate the farm. The respondents,
however, indicated that they were authorized by the ninth respondent,
Chief Josephat Gawanab to occupy the farm and refused to vacate.







[6] The Executive Management of the
applicant discussed the matter and on 26 and 27 May 2011 the
applicant served eviction notices on the respondents warning them to
vacate the farm, failing which legal steps would be taken to evict
them. The respondents still did not vacate the farm. In June 2011
officials of the applicant noticed that the number of persons
occupying the farm had increased. In an attempt to resolve the
matter, the applicant had discussions with Government agencies to try
to resolve the matter, but such efforts were unsuccessful. When the
applicant’s officials met with the respondents again in July
2011 and warned them that legal steps would be taken to evict them,
the respondents again claimed that the ninth respondent had
authorized them to settle on the farm.







[7] Also in July 2011 the ninth
respondent met with officials of the applicant, including Mr Gerwin
Mosimane, the senior property administrator at the Windhoek
Municipality. The ninth respondent stated that he represented the
respondents and claimed that he was entitled to settle them on the
applicant’s farm. Mr Mosimane indicated to the ninth respondent
that the respondents’ actions were illegal and that the
relevant government ministries and agencies responsible for
re-settling people should be approached, whilst at the same time
advising him that the respondents should vacate the farm. The ninth
respondent denies that this meeting took place.







[8] In August 2011 the applicant
noticed that a further group of persons had settled on the farm. They
had brought their livestock, dogs and donkeys with them. The
applicant’s officials again asked all such respondents to
vacate the farm, but they refused to do so. The applicant again
engaged the City Police to approach the respondents to ask them to
vacate the farm, but the respondents reiterated their refusal to do
so. The applicant had potential lessees who indicated their
willingness to lease the farm and accordingly applicant needed them
to leave.







[9] The applicant failed to mention
that prior to all these events, on 9 March 2011, the ninth respondent
had met with the Mayor of Windhoek, Ms Elaine Trepper to discuss the
matter. It is common cause that the ninth respondent advised the
Mayor that, due to the fact that members of his community were trying
to make a living by camping in the road corridors with their
livestock, he authorised them to settle on the farm. He pointed out
that this “
authorisation
granted by him was of a temporary
nature and subject to certain conditions specified by him. The ninth
respondent claims that during the discussion with the Mayor, the
Mayor “
agreed to allow
the people to stay
on
the farm and requested that the ninth respondent provided her with a
list of the names of the heads of the households residing on the
farm. The Mayor denies that there was any such agreement.







[10] It is against this factual
backdrop that this application falls to be decided.















THE RIGHT TO EVICT







[11] An owner of land is entitled to
evict an illegal occupant on that land. All that the owner must
allege and prove is, firstly, ownership of the land in question, and
secondly, that the occupant of the land is in occupation without any
legal basis
1.
The essential approach is summarised in
Chetty’s
case, supra,
where Jansen JA said the following
2:







It
is inherent in the nature of ownership that possession of the
res
should
normally be with the owner, and it follows that no other person may
withhold it from the owner unless he is vested with some right
enforceable against the owner (e.g., a right of retention or a
contractual right). The owner, in instituting a
rei
vindicatio
,
need, therefore, do no more than allege and prove that he is the
owner and that the defendant is holding the
res
the
onus
being
on the defendant to allege and establish any right to continue to
hold against the owner (cf.
Jeena
v. Minister of Lands,
1955
(2) S.A. 380 (A.D.) at pp. 382 E, 383).







[12] It is not disputed by the
respondents that the applicant is the owner of the farm and that they
are currently in occupation of the farm. What is in dispute, is the
lawfulness of the respondents’ occupation.







[13] Ms Conradie who appeared for the
respondents, limited the respondents’ right to continue to hold
out against the applicant as owner on one central submission. The key
premise is that an agreement was reached between the Mayor, Ms Elaine
Trepper and Chief Josephat Gawanab, the ninth respondent, to the
effect that the respondents could on a temporary basis remain in
occupation of the farm until alternative land had been found for them
to be re-settled on. In his affidavit in opposition to the relief
sought in this application, the ninth respondent refers to this
agreement” initially as an agreement “allowing
the people to stay
”. Later in his affidavit he is more
expansive and refers to the agreement as “giving the
respondents the right to occupy the farm
”. What is
uncontested is that the initial occupation of the farm by the
respondents took place without the applicant’s permission and
accordingly was unlawful.







[14] In my view these are two
different bases for any such agreement. The former formulation of the
agreement” postulates in essence a temporary
concession made by the Mayor rendering lawful the pre-existing
occupation by the respondents without the consent of the applicant
prior to the date of the “agreement”. The latter
more expansive description of the “agreement
suggests that the Mayor acknowledged a right of occupation on a
broader basis. The respondents’ argument placed great emphasis
on their version of what transpired at the meeting of 9 March 2011
between the parties as is reflected in the minutes taken by the
secretary of the /Khomanin Traditional Authority. The only reference
to the “agreement” in those minutes is a statement
attributed to the Mayor where she is alleged to have stated “I
will talk to my Council members, I will not evict your people from
there, but will they move if an alternative place has been found?
”.
In the replying affidavit of Ms Elaine Trepper, she emphatically
denies that any such statement was made by her or that any such
agreement” was reached.







[15] Counsel for the respondents
contended on the basis of the approach taken in the
Plascon-Evans
matter 3
that any dispute of fact in this
regard should be resolved in favour of the respondents. Mr Khama, who
appeared on behalf of the applicant, countered this with the
contention that had there been any such agreement, then on the
probabilities the ninth respondent, when corresponding with the
applicant in the letters dated 27 May 2011 and 15 June 2011 addressed
to the Mayor, would have referred to the “
agreement
not to evict the respondents from the
farm. No evidence was tendered by the respondents to any further
mention of this “
agreement
besides at the meeting of 9 March
2011. In fact, on his own version, when the ninth respondent wrote to
the Mayor on 27 May 2011, in response to the applicant’s
eviction notices, he made no mention of any such “
agreement.







[16] Whilst the factors which I have
mentioned militate against a mere acceptance of the say-so of the
ninth respondent in regard to the “
agreement
allegedly reached, should my concerns
about the veracity of respondents’ claims in this regard be
unwarranted, this is not the end of the matter. It is common cause
that the respondents’ case is predicated on the notion,
firstly, that any such “
agreement
was of a temporary nature. There is no
suggestion that the Mayor was a party to any agreement that the
respondents could remain in occupation of the farm on an indefinite
basis. It must accordingly have been anticipated that should any such
agreement on a temporary basis have been reached with the Mayor, that
such consent could be revoked by the applicant at a later stage. On
the uncontested facts, and particularly in the light of the eviction
notices served on the respondents by the applicant, there can be no
doubt that the applicant resolved – despite any agreement that
might have been reached between the Mayor and the ninth respondent –
to revoke any such agreement (should it have indeed been concluded)
and to insist on enforcing its rights as the owner of the farm. The
applicant, as the owner, was accordingly within its rights to revoke
such temporary permission to occupy the farm.







[17] Secondly, even if I were to
accept that such an “
agreement
was reached between the Mayor and the
respondents relating to occupation on the farm on a temporary basis,
such agreement was concluded between the Mayor and the respondents.
This much is clear from the minutes produced by the secretary of the
/Khomanin Traditional Authority. Despite the respondents bearing the
onus to prove lawful occupation, nowhere in the answering papers is
the allegation made that the Mayor had authority on behalf of
applicant to enter into any such “
agreement.
In fact, to the contrary, in rebuttal in the replying papers, the
applicant by way of Ms Trepper expressly denies that she had the
authority to grant any such consent and to agree to the respondents’
occupation of the farm. There is accordingly no evidence to the
effect that the applicant itself granted such consent, or that the
applicant delegated to the Mayor the authority to do so.







[18] In view of the approach I take in
this matter, it is unnecessary to deal with the further issues raised
by counsel in argument in this matter, including the contention that
the respondents are not properly before Court.







CONCLUSION







[19] It accordingly follows that the
respondents had failed to discharge the onus that they are in lawful
occupation of the farm. In so finding, I am mindful of the
considerations raised by the ninth respondent relating to the
desperate circumstances in which the respondents find themselves,
brought upon by landlessness and poverty. However, this
socio-economic reality gives way to other considerations, the most
predominant of which is the rule of law. I can do no better than to
echo the sentiments expressed by Goldstein J
4:







Given
the profoundly tragic history of the matter, no Court can grant an
order for eviction in the present circumstances affecting hundreds of
people without feelings of distress and anguish. But the principle at
stake here is a cornerstone of the rule of law. The principle that no
man may take the law into his own hands as the respondents have done
is sacrosanct. Respect for it is absolutely necessary for human
society to function in conditions of peace, serenity and security.
The principle is an ancient one of our common law. It existed long
before the misfortune which dispossessed the respondents was
conceived of, and, hopefully, it will continue to exist and be
respected long after that misfortune is corrected, and it and their
pain are no more than a blot on the pages of our history books.







The reality is that courts do not act
on abstract ideas of equity and justice. In the words of Innes CJ
5:







The
court has again and again had occasion to point out that it does not
administer a system of equity, as distinct from a system of law”.



[20] I accordingly find that the
applicant has made out a case for the eviction order sought in this
matter, together with the further ancillary relief contained in the
rule
nisi (and
subject to the refinements contained in my order), with the
proviso
that the rule is discharged
against the sixth and eighth respondents based upon the settlement
reached between the parties in regard to them.







[21] Whilst mindful of the
considerations militating against the suspension of the execution of
an order of this nature
6,
I exercise my discretion to order that the eviction be suspended for
a period of two months. The primary consideration is that the abodes
from which the respondents are to be evicted constitute their homes
and at least part of their livelihoods by virtue of the livestock
they keep. The further consideration is that, although the ninth
respondent had no authority to authorise the respondents to occupy
the farm, the respondents might have genuinely been misled by their
Chief on this score.







[22] In the circumstances, I make the
following order:







[22.1] The rule nisi herein is
discharged in respect of the sixth and eighth respondents, each party
to pay its own costs.







[22.2] The rule nisi, and
particularly paragraphs 3 to 10 thereof, in respect of the remainder
of the respondents is confirmed, together with costs, provided that
the date provided for in paragraph 4 thereof is amended to read 30
July 2012, and the dates provided for in paragraphs 5 and 7 thereof
are amended to read 31 July 2012.











__________



CORBETT, A.J




















ON
BEHALF OF THE APPLICANT





Adv.
Dennis Khama





Instructed
by Kwala & Co. Inc.











ON
BEHALF OF THE RESPONDENTS





Adv.
L Conradie





Instructed
by Legal Assistance Centre









1Chetty
v Naidoo, 1974 (3) SA 13 (A); De Villiers v Potgieter and Others
N.N.O, 2007 (2) SA 311 (SCA), at 316, para [12]; Council of the
Municipality of Windhoek v Bruni N.O. and Others, 2009 (1) NR 151
(HC), at 164, para [29]




2Chetty’s
–case, supra, at 20 B - D




3Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd, 1984 (3) SA 623 (A)




4Minister
of Agriculture and Agriculture Development and Others v Segopolo and
Others, 1992 (3) SA 967 (T), at 977 D - F




5Kent
v Transvaalsche Bank, 1907 TS 765, at 773 – 774; quoted in
Belmont House v Gore NNO, 2011 (6) SA 173 (WCC), at 178, para [18]




6EP
Du Toit Transport Ltd v Windhoek Municipality, 1976 (3) SA 818
(SWA), at 820 B - D