Oshakati High Court Judge Maphios Cheda delivered a telling judgment in a case where a property developer had to approach the High Court to stop people from disturbing its construction activities.
Stantoll Properties obtained a plot of land from the Ongwediva Town Council and started to construct a mall on the property and in anticipation of completing the said mall it entered into lease agreements with prospective businesses. However, the previous owner of the land in question, Lukas Johannes did not take kindly to the development, as he claimed that he was not compensated for the land appropriated by the government in favour of the Ongwediva Town Council and apparently organised the community to block the construction. People stood in front of the construction machinery and equipment and went to the extent of beating up the developer’s employees, which forced the developer to abandon the construction activities resulting in financial prejudice to the developer. This led the developer to institute court proceedings against Johannes claiming that his actions would cause irreparable harm and asking Johannes to be interdicted from carrying on with his unlawful activities.
According to court documents, the land in dispute used to be communal land under the traditional authority. However, the government of Namibia has since expropriated it from the traditional authority and bestowed it to the council. Johannes did not welcome this claiming it was unlawful, as he was uprooted from the land of his forefathers without compensation.
Judge Cheda said what was to be decided is to whom the land belongs. The developer bought the land from the council, who received it from the government who took it from Johannes in terms of a parliamentary act.
According to the judge, the developer has a title deed to the land, which makes it the lawful owner. The judge further said while he was perusing the documents, he came across allegations of violence and threats of violence against the developer’s employees on site.
“Namibia is a peaceful and democratic country, while its constitution permits demonstrations as a way of protest, such protests have to be conducted within the confines of the law. Violence or threats thereof should not and cannot be tolerated in this country,” Judge Cheda stressed.
He went on to say that the violence perpetrated on innocent employees was, from the court’s point of view, deplorable and should not be allowed to rear its head. He issued an interim for Johannes to show cause on April 10 why an order restricting Johannes and his followers from interfering or obstructing the construction activities on Erf 6315, Extension 13, Main Road, Ongwediva should not be made final. He further ordered that Johannes and/or his family members and animals be evicted from the premises and that officers stationed at the Ongwediva Police Station be authorised to arrest Johannes or any of his followers that interfere in the construction activities. He also awarded costs of the suit to the developer.
Following this judgment, a huge outcry erupted on social media attacking the judge, which prompted the Namibian Lawyers Association (NLA) to jump to the defense of the judge and judges in general. According to a press release issued by NLA “various statements made on social media, following what appear unfavourable judgments, have raised questions about the role of our courts in dispensing justice as it concerns the ordinary Namibian”.
They further said that the NLA notes, with grave concern and regret, that these statements contain criticism of individual judges amounting to undue interference with judicial independence.
“The independence of the judiciary, in a constitutional democracy like ours, is sacrosanct and must be protected to ensure that judges remain fearless, impartial and act without prejudice” the NLA stated.