Eveline de Klerk
The Walvis Bay Magistrate’s Court has dismissed an application by the Walvis Bay Municipality to evict landless people who erected structures on eight plots in Kuisebmond’s Granite Street.
Walvis Bay lawyer Shakespeare Masiza filed the application on behalf of the municipality. However, on Friday afternoon the magistrate Vicky Nicoladis dismissed the application. The municipality had asked the court to grant the final order for the eviction of the people and for their structures to be demolished. The eviction order was issued on 12 May.
However, in a funny twist, Masiza did not show up at court and the magistrate first postponed the matter to the afternoon, when he still had not pitched. This prompted the lawyer representing the landless people, Henry Shimutwikeni, to ask that the “court discharge and dismiss the order and not grant the final order. As the application, which was brought by the applicant, falls beyond the jurisdiction of this court and affects the constitutional rights of the respondents.”
He also informed the court there is a dispute regarding the ownership of the land in question, with claims that it does not belong to the municipality but to the government. As such the municipality cannot ask the court to evict people from land it does not own, he argued.
According to Shimutwikeni, it is the duty of each practitioner in any application to place as much information before the court to assist magistrates in making decisions that are not appealable. And Masiza failed in his duties, he contended.
Shimutwikeni further argued that the municipality was supposed to approach the appropriate court, which is the high court and not the magistrate’s court.
Therefore, Shimutwikeni told the court, the respondents are applying to the court to dismiss the application because the rules of the court and its empowering legislation, Act 2 of 1944, do not allow the applicant to bring an application on an ex parte basis and also on an urgent basis, as it was done by Masiza.
Before dismissing the application the magistrate Nicoladis noted that neither a representative of the applicant, which is the Walvis Bay Municipality, nor its legal representative was present in court. She also noted that while the court order issued on 12 May to evict the landless and destroy their structures indicates the date on which the order may be made final, it does not indicate the time it should be made final.
“This is a failure of both the applicant as well as the court who ought to have ensured that the interim order was explicit in its reading. As it stands the representative of the respondent on record approached the court at 09h00 and the matter was stood down until 14h00 and still the applicant is absent and remained unrepresented,” said the magistrate.
“Thus the court agrees with the respondents that the matter was not placed before this court in terms of proper procedure and for that reason alone the court order issued on 12 May cannot stand and is dismissed, with the applicant also liable to pay the costs of the application on normal scale,” Nicoladis ruled.