Nuuyuni v Oniipa Town Council (SA 74/2021) [2025] NASC 24 (14 July 2025)

# Nuuyuni v Oniipa Town Council (SA 74/2021) [2025] NASC 24 (14 July 2025) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nasc/2025/24/eng@2025-07-14) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nasc/2025/24/eng@2025-07-14) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nasc/2025/24/eng@2025-07-14) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nasc/2025/24/eng@2025-07-14) [ __](mailto:?subject=Take a look at this document from NamibLII: Nuuyuni v Oniipa Town Council \(SA 74/2021\) …&body=https://namiblii.org/akn/na/judgment/nasc/2025/24/eng@2025-07-14) [ Download DOCX (98.3 KB) ](/akn/na/judgment/nasc/2025/24/eng@2025-07-14/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nasc/2025/24/eng@2025-07-14/source.pdf) Report a problem __ * Share * [ Download DOCX (98.3 KB) ](/akn/na/judgment/nasc/2025/24/eng@2025-07-14/source) * [Download PDF](/akn/na/judgment/nasc/2025/24/eng@2025-07-14/source.pdf) * * * * * Report a problem __ ##### Nuuyuni v Oniipa Town Council (SA 74/2021) [2025] NASC 24 (14 July 2025) Copy citation * __Document detail * __Related documents * __Citations 3 / - Citation Nuuyuni v Oniipa Town Council (SA 74/2021) [2025] NASC 24 (14 July 2025) Copy Media Neutral Citation [2025] NASC 24 Copy Hearing date 6 February 2024 Court [Supreme Court](/judgments/NASC/) Case number SA 74/2021 Judges [Makarau AJA](/judgments/all/?judges=Makarau%20AJA), [Prinsloo AJA](/judgments/all/?judges=Prinsloo%20AJA), [Schimming-Chase AJA](/judgments/all/?judges=Schimming-Chase%20AJA) Judgment date 14 July 2025 Language English Summary Read full summary * * * Skip to document content **REPORTABLE** CASE NO: SA 74/2021 **IN THE SUPREME COURT OF NAMIBIA** In the matter between: **MATHEUS NUUYUNI** | **Appellant** ---|--- | and | | **ONIIPA TOWN COUNCIL** | **Respondent** **Coram:** MAKARAU AJA, PRINSLOO AJA and SCHIMMING-CHASE AJA **Heard: 6 March 2024** **Delivered: 14 July 2025** **Summary:** The appellant, Mr Nuuyuni, held customary land rights in Onethindi proper before it was declared a township and renamed Oniipa. Upon being declared a township, the Oniipa Town Council compensated Mr Nuuyuni in the amount of N$ 50 280.04 for his customary land rights and allocated three erven to him. These erven are 115,116 and 132. At some point, Mr Nuuyuni erected fences around erven 114, 115, 116, 117, 118, 131 and 132. The Town Council intended to construct a sewerage system in Oniipa and required access to the fenced-off and enclosed erven for that purpose. It approached the court _a quo_ for assistance. The Town Council sought in its application an order for _mandament van spolie_ and an interdict alleging that Mr Nuuyuni despoiled it by putting up fences. It alleged that by virtue of its ownership of the land in the township, it was in possession of the fenced-off erven. Mr Nuuyuni asserted that the Town Council had not proven on a balance of probabilities that it possessed the erven he had fenced off. Mr Nuuyuni’s heads of argument were filed less than 21 days before the hearing date of the appeal. He sought condonation in this regard. The Town Council withdrew its opposition to the condonation application during the appeal hearing. The Town Council equally sought condonation from the bar as it failed to file a power of attorney. That application too was unopposed. _Held that_ ; Mr Nuuyuni has an arguable case. Condonation is granted and the appeal reinstated. _Held that_ ; the remedy of _mandament van spolie_ has two legs. The first being peaceful and undisturbed possession and the second being wrongful or illegal dispossession without consent. _Held that_ ; the answer to the question as to whether the Town Council had on a balance of probabilities made out a case warranting the grant of a spoliation order should be in the negative. The Town Council did not set out facts to demonstrate that it not only had the right to possess the erven, but also that it actually possessed the erven that were fenced off. The only averment the Town Council made was that it owned the land in the township and therefore by that very fact alone, it was in possession of all the land or erven in the township. This argument, respectfully, falls short of the two-legged test in an application for a spoliation order. _Held that_ ; the issue of compensation was not part of the case management report nor the case management order which endorsed the parties’ joint report. Therefore, the court _a quo_ was confined to determine the matters in dispute (the matters discussed and not agreed on) as per the parties’ amended joint case management report. This court’s consideration of this appeal will be premised from that point. The ground of appeal that the court _a quo_ erred when it failed to address the issue – whether or not just compensation was paid – should therefore fail. Consequently, the appeal is upheld with costs, such costs are limited to disbursements. ____________________________________________________________________ **APPEAL JUDGMENT** ____________________________________________________________________ SCHIMMING-CHASE AJA (MAKARAU AJA and PRINSLOO AJA concurring): _Introduction_ # [1]Whoever said, ‘when weeds invade the land, it means the owner is absent’ could not have said it better as far as this appeal is concerned. I must simply and out of an abundance of caution state that the reference to weeds is by no means a literal reference, but one relevant to the age-old fight between ownership and possession (of immovable property), and the resultant rights that flow from both, in law. # [2]The appellant is an adult male person residing in Oniipa, Oshikoto Region, Republic of Namibia. He was the respondent _a quo_. For the sake of convenience, I will refer to him herein as ‘Mr Nuuyuni’. He represents himself in these proceedings. # [3]The respondent is a local authority council established in terms of the Local Authorities [Act 23 of 1992](/akn/na/act/1992/23), as amended, with its primary place of business at Onandjokwe Road, Oniipa, Oshikoto Region, Republic of Namibia. For purposes of this judgment, I will refer to it as ‘the Town Council’. _Background facts and issues arising_ # [4]The Town Council claiming to be the owner of Portion 1 of the Farm Onethindi Townlands No. 1002, Registration Division A (which portion of land was proclaimed an approved township per Government Notice No. 75 published in the _Government Gazette_ No. 3632 of 15 May 2006), instituted an application in the court _a quo_ for interdictory and declaratory relief against Mr Nuuyuni. # [5]It applied for an order declaring Mr Nuuyuni’s interference with the Town Council’s construction of a sewerage system at erven 114, 115, 116, 117, 118, 131 and 132 (‘the erven’) Onethindi Proper to be illegal, and an order restraining Mr Nuuyuni from further interfering with the construction of the sewerage system. # [6]The Town Council also sought an order directing Mr Nuuyuni to restore possession of these erven to the Town Council, and to remove all fences obstructing the Town Council’s contractors from accessing these erven. Finally, an interdict was sought preventing Mr Nuuyuni from erecting any illegal fences or structures on these erven. # [7]The application stemmed from the following set of facts: The township comprises of 251 erven, numbered 1 to 251. Mr Nuuyuni resides in this township and the Town Council is the Local Authority Council responsible for it. The township has since been renamed Oniipa. # [8]Prior to the proclamation of Oniipa as a township, Mr Nuuyuni held customary land rights over a portion of the land, which was allocated to him by the Ondonga Traditional Authority.1 # [9]Subsequent to the proclamation of Oniipa as a township, Mr Nuuyuni, acting in person, and the Town Council, represented by its Chief Executive Officer, concluded a written compensation agreement. In terms thereof, Mr Nuuyuni was to be paid an amount of N$50 280,04 by the Town Council, being the full and final payment for his communal land rights and improvements made on the land. It was further agreed that Mr Nuuyuni would vacate the communal land within 120 days from the date of receipt of the compensation amount. The agreement was signed on 29 March 2018 and 3 April 2018, whilst compensation was paid on 13 April 2018. # [10]In addition to the monetary compensation, Mr Nuuyuni was allocated three erven in the township, namely erven 115, 116 and 117. Mr Nuuyuni then requested that the Town Council allocate erf 132 to him, in exchange for erf 117. He further sought permission to purchase erf 131. The Town Council granted the request to trade the two erven, but declined the request for permission to purchase erf 131. This therefore meant that erven 115, 116 and 132 were allocated to Mr Nuuyuni by the Town Council. # [11]The Town Council began with excavation work to install a sewerage system in the township. The sewerage system is intended to run along the boundary line of _inter alia_ Mr Nuuyuni’s allocated erven. # [12]The sewerage system could, however, not be installed as erven 114, 115, 116, 117, 118, 131 and 132 were allegedly illegally fenced off by Mr Nuuyuni. The installation was scheduled for completion in December 2019 but remained pending due to these erven having been fenced off. Despite written notices to Mr Nuuyuni by the Town Council and despite Mr Nuuyuni’s undertaking to remove them, the fences remained in place. These facts informed the Town Council’s application for interdictory and declaratory relief in the court _a quo,_ which Mr Nuuyuni opposed. _Proceedings a quo_ # [13]In the motion proceedings, the Town Council’s Chief Executive Officer, Mr Junias Shawapala Jakob, deposed to the founding affidavit. The case of the Town Council _a quo_ is summarised as follows: 1. After the declaration of Onethindi Extension 1 (now Oniipa) as a township, the Town Council in terms of the compensation guidelines,2 allocated erven 115,116 and 117 to Mr Nuuyuni in addition to payment of N$50 280,04 as compensation for his communal land rights and improvements. Mr Nuuyuni then removed all fences in respect of the erven for which he was compensated.3 2. As mentioned above and in May 2019, Mr Nuuyuni requested permission to be allocated erf 132 in exchange for erf 117. This application was granted. His request for permission to purchase erf 131 was declined. 3. During this period, the Town Council informed Mr Nuuyuni that it had plans to service the land, which included the erven allocated to Mr Nuuyuni, by the installation of a sewerage system. The Town Council requested Mr Nuuyuni to remove the fences around his erven as they were obstructing the installation of the sewerage system. The contractors responsible for constructing the sewerage system reported that Mr Nuuyuni interrupted and threatened the contractors to not remove the fences. 4. Upon investigation, the Town Council discovered that Mr Nuuyuni had also fenced off erven 114, 117, 131 and 133. 5. After several meetings between the Town Council and Mr Nuuyuni and on or about 3 March 2020, Mr Nuuyuni undertook not to erect further fences and to remove the fences already erected. 6. The Town Council holds firm the view that it owns the land or erven in question and that any right which may have been allocated to Mr Nuuyuni by the traditional authority ceased upon the proclamation of Oniipa as a township. 7. As regards the interdictory relief, the Town Council averred that as per the compensation agreement, Mr Nuuyuni recognised its rights to the erven which he wilfully and unjustifiably interfered with. 8. The Town Council explored the possibility of finding an alternative route for the construction of the sewerage system, but its consulting engineers found that doing so would increase the cost of the project by N$70 000. Mr Nuuyuni’s failure to remove the fences meant that the erven could not be serviced and could therefore not be sold. 9. The Town Council had no similar protection or any other ordinary remedy in the circumstances, other than that sought in the court _a quo_. # [14]Mr Nuuyuni opposed the application _a quo._ According to Mr Nuuyuni, a certain Mr Kambonde and Ms Nghifindaka visited him and informed him of the proclamation of Onethindi as a township. He was informed not to improve the land on the west side of erven 58, 59, 60, 61 and 62. As a result, he removed the fences around those erven.4 He then put up fences around erven 114, 115, 116, 117, 118, 131 and 132. He denies fencing off erf 133. # [15]Mr Nuuyuni alleged that he was allocated the erven (that he fenced off) by the traditional authority and that the Town Council improperly sought to divest him of his customary land rights. He did not deny receiving the compensation amount as alleged by the Town Council, nor that he erected fences around erven 114, 115, 116, 117, 118, 131 and 132. He also did not deny that he had interrupted the contractors who were contracted to install the sewerage system. Mr Nuuyuni’s point was that he was only compensated for erven 58, 59, 60, 61 and 62. # [16]He stated that he had provided proof of his customary land rights over the fenced-off erven to the Town Council and pointed out that the document titled ‘acknowledgment of receipt of compensation for land and improvements in terms of compensation policy guidelines for communal land of 2009’, attached to the founding affidavit of the Town Council, did not contain any specific details such as, the size of the land in respect of which compensation was to be paid and the specific erf numbers involved in the compensation agreement. Mr Nuuyuni asserted further that he understood the agreement to relate to erven 58, 59, 60, 61 and 62 and not erven 115, 116, 117, 118, 131 and 132. He also disputed that the amount comprising compensation was correct. According to him the amount was less, and not a true reflection of the improvements Mr Nuuyuni made on the erven. # [17]In reply, the Town Council’s stance was that compensation paid was for all the erven in dispute, and not merely erven 58, 59, 60, 61 and 62. Further, erven 115, 116 and 132 were allocated to Mr Nuuyuni free of charge in terms of the compensation policy. # [18]The Town Council alleged that it was the lawful owner of and had peaceful and undisturbed possession of the erven and land in question and was therefore entitled to deal with the land as it saw fit. # # [19]From the outset, it is apparent that the Town Council failed to set out facts, both in the founding affidavit and the replying affidavit, as regards how and when it obtained undisturbed possession of the fenced-off erven. The Town Council also admitted that the compensation agreement was silent on the details of the erven for which Mr Nuuyuni was compensated, as raised by Mr Nuuyuni. It asserted instead, that those details were expressly stipulated in a valuation card which was presented to Mr Nuuyuni, which is not attached to the papers filed of record. # [20]The case management report filed in terms of rule 71(2) of the High Court Rules confined the issues for determination to three. These were, (a) whether the Town Council had a right to construct a sewerage system on the property; (b) whether the Town Council was in peaceful and undisturbed possession of the fenced-off erven and accordingly despoiled by Mr Nuuyuni; and (c) whether the Town Council was the owner of the land, and also whether Mr Nuuyuni interfered with that right of ownership. The question of compensation was not dealt with in the parties’ joint case management report. _Findings of the court a quo_ # [21]The court _a quo_ in relation to the above three issues, reasoned that – ‘[37] As the matter involved the possession of land and a respondent who conducted his case personally, I went out of my way to fully understand the version forwarded by the respondent and to see if he has any real defence against the case brought against him. There simply is none. Rather than approaching the court to enforce any right he might have, he resorted to self-help and essentially took the law into his own hands when he fenced off property, _infringed applicant’s rights of undisturbed possession to some of the erven_ and interfered and keeps on interfering with applicant’s right to construct a sewerage system for Oniipa town. (emphasis supplied) [38] I am however not prepared to grant the relief as it was requested and formulated in the notice of motion and reformulated it as contained in the order underneath.’ # [22]The court _a quo_ then made the following order: 1. ‘The respondent is to restore the applicant's undisturbed possession of erven 114, 117, 118, and 131 in Oniipa town and directed to remove all his fences obstructing the applicant’s and its contractors’ access to these erven on or before 16 September 2021 failing which the Deputy Sheriff of Ondangwa is authorized to remove the aforesaid fences at the cost of the respondent. 2. The respondent should not interfere with applicant’s contractors from accessing designated erven for the construction of a sewerage system in Oniipa town and the construction and excavation of a sewerage system with a maximum width of 3 meters across the erven boundaries starting at a manhole on erf 129 continuing in a western direction along the boundaries between erven 120 and 129, erven 119 and 130, erven 118 and 131, erven 131 and 117, and then southwards along the boundaries between erven 131 and 116, erven 132 and 115, and erven 133 and 114 respectively. 3. The respondent should remove any fences between erven 116 and 131 and erven 115 and 132 Oniipa town when the construction and excavation of the aforesaid sewerage system by applicant reaches that area and requires such removal for the construction of a sewerage system failing which the Deputy Sheriff is authorised to remove the aforesaid fences at the cost of the respondent. 4. Costs of suit.’ _On appeal_ # [23]Mr Nuuyuni’s grounds of appeal are that the court _a quo_ erred and misdirected itself – 1. by failing to dismiss the application for spoliation on the basis that the Town Council had not alleged and proved peaceful and undisturbed possession of the erven; 2. by disregarding Mr Nuuyuni’s evidence that the Town Council was not in peaceful and undisturbed possession of the erven, and by finding that the Town Council had _de facto_ possession of the land; 3. by finding that Mr Nuuyuni’s communal rights ceased to exist once the area was declared a township, and by finding that Mr Nuuyuni resorted to self-help and infringed the Town Council’s rights when he fenced off the property; 4. by finding that the Town Council acquired lawful ownership or right of ownership to the land without consideration of his communal land rights. # [24]Mr Nuuyuni argued that he was granted customary land rights by the Ondonga Traditional Authority and that these rights were not lost when the land in question was declared a township. He reasoned that the Town Council was accordingly never in peaceful and undisturbed possession of the land. He further argued that the Town Council also did not allege and prove that it was in possession of the land, let alone peaceful and undisturbed possession. The judge _a quo_ thus erred in law, so it was argued, when he granted the spoliation relief. # [25]Mr Nuuyuni cited the decision of this Court in _Kashela v Katima Mulilo Town Council,_ 5 (dealt with below) and argued that he was entitled to just compensation for the land previously allocated to him by the Ondonga Traditional Authority, which, according to him, was not properly done by the Town Council. Mr Nuuyuni further argued that in terms of Art 16 of the Namibian Constitution, he is entitled to such compensation. # [26]Mr Nuuyuni also submitted that nowhere in his answering affidavit~~,~~ did he admit that the Town Council owned the land in question. # [27]During oral argument, the court enquired from Mr Nuuyuni whether, regardless of who owns the land, he would oppose having the land serviced and a sewerage system constructed. He responded that he would not, provided that the Town Council approached him ‘peacefully’. # [28]In opposition, it was argued on behalf of the Town Council that in terms of Art 100 of the Namibian Constitution, all communal land vests in the State. Further that, in terms of s 10 of the Townships and Division of Land Ordinance 11 of 1963,6 land declared a local authority vests in that local authority. By virtue of this legislation, so it was argued, the Town Council was in _de facto_ possession of the ‘illegally’ fenced off erven by virtue of its ownership of the land in the township. It was therefore submitted that the court _a quo_ had not erred when it implicitly held that the Town Council was in _de facto_ possession. # [29]Counsel for the Town Council conceded during the appeal hearing that, on the facts, the Town Council never physically occupied the land in question, even if it had a right to possess the land. However, as we understood counsel’s argument, reliance was maintained on a principle that ownership vested by the Townships and Division of Land Ordinance effectively created _de facto_ possession. This Court was referred to the decision of _China Harbour Engineering Co Ltd v Erongo Quarry and Civil Works (Pty) Ltd & another_7 to buttress the point that the Town Council was in _de facto_ possession of the land and that the spoliation order granted was therefore justified. # [30]It was argued that the court _a quo’s_ finding that Mr Nuuyuni conceded the Town Council’s ownership of the land in question in his answering affidavit was correct, and insisted that the Town Council was in peaceful and undisturbed possession as held by the court _a quo._ Thus, the court was correct in finding that Mr Nuuyuni had resorted to self-help, thereby unlawfully dispossessing the Town Council. _Issues for determination_ # [31]The primary issues for determination by this Court are whether the Town Council made out a case for the granting of a spoliation order, and whether the interdictory relief, as it were, was granted as a result of the finding that a spoliation order was apposite. # [32]To this end, this Court must determine whether the Town Council was in peaceful and undisturbed possession of the erven where the sewerage system was to be constructed, and whether Mr Nuuyuni unlawfully interfered with the Town Council’s possession of the erven. Ownership of the erven was also in dispute between the parties, but, as will be gleaned below, ownership is not a relevant consideration in the appeal. _Applicable legal principles and discussion_ # [33]At the onset, it must be mentioned that the issue of whether the compensation paid to Mr Nuuyuni was just or not is not before this Court. The issue of compensation was not part of the amended case management report, nor the case management order which endorsed the parties’ joint report. Therefore, the court _a quo_ was confined to determine the matters in dispute as per the parties’ amended joint case management report. This Court’s consideration of this appeal will be premised on that score. The ground of appeal that the court _a quo_ erred when it failed to address the issue – whether or not just compensation was paid – should therefore fail. # [34]In _Stuurman v Mutual & Federal Insurance Company of Namibia Ltd8 _this Court, albeit in action proceedings, held that: ‘Parties engaged in litigation are bound by the agreements they enter into limiting or defining the scope of the issues to be decided by the tribunal before which they appear, to the extent that what they have agreed is clear or reasonably ascertainable. If any one of them want to resile from such agreement it would require the acquiescence of the other side, or the approval of the tribunal seized with the matter, on good cause shown.’9 # [35]If the parties – in terms of judicial case management rules – prepare a report and therein set out the issues they have agreed upon as well as the issues they disagree upon and fail to mention other issues that were contained in their pleadings, the court would be acting against the overriding objectives of judicial case management if it considered issues not contained in the parties’ jointly signed case management report. To hold otherwise would make negative inroads into the overriding objective of the judicial case management process in the High Court, as well as the purpose for which these reports were introduced. # [36]Perhaps it is time for litigants both represented and unrepresented to give the judicial case management process the respect and time it requires for purposes of proper preparation for a court hearing. Had this been afforded in the drafting of the case management report, all matters arising from the pleadings which the parties discussed and could not agree on would have been comprehensively covered in their joint case management report. Failing this, the court is to accept that the parties have confined themselves to those issues mentioned in their joint report to the court _a quo_. To introduce the issue around compensation at this stage is tantamount to crying over spilt milk. I will say no more on this ground of appeal. # [37]The rest of the appeal grounds (but for one which I will briefly discuss later in this judgment) centre around the question whether the Town Council had made out a case for peaceful and undisturbed possession _a quo_. # [38]It is trite law that the _mandament van spolie_ remedy has nothing to do with ownership, and everything to do with possession. This is the point that counsel for the Town Council’s legal representative missed. As mentioned, counsel for the Town Council referred the court to the matter of _China Harbour Engineering Co Ltd v Erongo Quarry and Civil Works (Pty) Ltd & another10 _for the submission that ownership effectively constituted _de facto_ possession. Paragraphs 12-13 of that judgment set out in clear terms the requisites for a _mandament van spolie_ : ‘[12] The requisites for a spoliation order are trite and may be summarised as follows: 10. that the applicant was in possession of the property; and (ii) that the respondent deprived him of the possession forcibly or wrongfully against his consent. [13] The cause of the applicant’s possession is irrelevant. The question whether that possession is wrongful, or illegal is also irrelevant and goes to the merits of the dispute. _An applicant has to show not that he was entitled to be in possession, but that he was in_ __de facto__ _possession at the time of being despoiled_. It is not necessary that the possession be continuous. In cases that concern immovable property, the continuous presence of the applicant or its servants on the premises is not required, if the nature of the operations which it conducts on the premises does not require his continuous presence. Furthermore, the possession need not have been exclusive possession. A spoliation claim will lie at the suit of a person who holds jointly with others.’ (My underlining) # [39]_China Harbour Engineering Co Ltd,_ in no uncertain terms, explains that the remedy of _mandament van spolie_ has two legs. The first being peaceful and undisturbed possession and the second being wrongful or illegal dispossession without consent. Further that such possession has to be _de facto_ , in other words, possession should be ascertainable as a matter of fact. Ownership is not a consideration in the determination of possession for purposes of a spoliation application. # [40]Joubert in _LAWSA 11_ explains possession in the following manner _:_ ‘The word “possession” is derived from the Latin root “possessio” which in turn is a contraction of the words “potestas” and “sedere”. _Possession thus connotes the factual and mental domination of a thing by a person_. . . . Even today possession is most commonly defined as the compound of a factual situation and of a mental state consisting in the _factual control or detention of a thing (corpus) coupled with the will to possess the thing (animus possidendi)_.’ (My underlining) # [41]Therefore, on the facts of this case, the Town Council was required to establish that it was in factual control or detention of the relevant erven, and further that it had the will to possess same. The Town Council therefore had to prove on a balance of probabilities that it controlled or possessed the erven with both its ‘mind’ and ‘body’. This was succinctly explained as follows: ‘[23] The underlying, fundamental principle of the remedy of _mandament van spolie_ is that no one is allowed to take the law into his own hands and thereby cause a breach of peace. Therefore, _‘in a spoliation application the court does not decide what – apart from possession – the rights of the parties to the spoliated property were before the act of spoliation but merely orders that the status_ __quo__ _[___ante__ _] be restored. The onus lies_ _upon the applicant to prove on a balance of probabilities that_ . . .’12 [My underlining] # # [42]In _Shoprite Checkers Ltd v Pangbourne Properties_ _Ltd_ 1994 (1) SA 616 (W) at 619E Zulman J stated: ‘It is trite that the purpose of the __mandament van spolie__ _is to protect possession without having first to embark upon an enquiry, for example, into the question of the ownership of the person dispossessed_. Possession is an important juristic fact because it has legal consequences, one of which is that the party dispossessed is afforded the remedy of the _mandament van spolie_. . . ’ # [43]The question as to whether the Town Council had on a balance of probabilities made out a case warranting the grant of a spoliation order, as set out in its founding papers, should be answered in the negative. The Town Council did not set out facts to demonstrate that it not only had the right to possess the erven, but also that it actually possessed the erven that were fenced off. The only averment the Town Council made was that it owned the land in the township and therefore by that very fact alone, it was in possession of all the land or erven in the township. This argument, respectfully, falls short of the two-legged test in an application for a spoliation order. An owner, without a doubt, has the right to possess, but may not intend to possess. Whereas a thief who has no lawful title to a property very well could have the intention to possess and may be in actual possession of the property. # [44]In this particular case, and on counsel for the Town Council’s concession during oral argument, the Town Council was in fact, not in possession of the erven that Mr Nuuyuni had fenced off. It is also clear from the papers filed in the application in the court _a quo,_ that at the time the contractors began constructing the sewerage system, Mr Nuuyuni had already fenced off the erven. The Town Council was therefore not in possession of the erven prior to the fencing off by Mr Nuuyuni, nor thereafter. The first leg of spoliation therefore was not established and the court _a quo_ could on the facts before it, and in law, not have granted the spoliation order. # [45] As a result of this finding, it is unnecessary to determine dispossession (the second leg), as he who never possessed could never be dispossessed. # [46]As mentioned earlier in this judgment, during oral argument, Mr Nuuyuni was asked by this Court whether he would oppose the construction of the sewerage system on the erven; he answered in the negative. He, in fact, indicated that he would welcome such a development. Therefore, I see no reason why Mr Nuuyuni would hinder the construction of the sewerage system. This is merely an observation I make in passing as the issue regarding the interdictory relief initially sought in the notice of motion _a quo_ was not persisted with in the amended joint case management report, the case management order nor the notice of appeal presently before this court. # [47]The other remaining ground of appeal dealt with the ownership of the land in the township. Given the finding we make on the main relief, namely the spoliation and the resultant relief sought, it is not necessary to deal with this aspect. However, it is necessary in these circumstances to reiterate that this Court has held that an occupier of communal land in terms of customary law is not deprived of his or her rights when the communal land becomes a township, thereby falling under the control of the relevant regional and municipal authorities. In _Kashela v Katima Mulilo Town Council & others,_13 this Court clarified that: ‘[78] The fact that land ceased to be communal land does not necessarily result _in the occupier of that land losing the protection given by sch 5(3)._ That provision makes clear that the land is transferred to the government ‘subject to any existing right . . . obligation . . . over such property’. It must follow that s 15(2) of the Communal Land Reform Act relied on by the court _a quo_ to find against Ms Kashela finds no application because the right embedded in sch 5(3) is a _sui generis_ right given under the Constitution (with a corresponding obligation on the successor to the land) and it must take primacy. [79] Given the socio-political context in which the right arises, there is no reason in public policy why it should not extend to a local authority such as KTC (Katima Mulilo Town Council) as successor in title. It is an important public policy consideration that KTC is an organ of government which, after all, received the land in dispute for free, for a public purpose.’ (My underlining) # [48] Given the aforementioned, the order of the court _a quo_ cannot stand and must be set aside. # [49] It is however necessary for completeness, to deal shortly with two condonation applications. # [50]Mr Nuuyuni, failed to file his heads of argument within 21 days before the appeal hearing date and filed an application for condonation. The Town Council initially opposed the application but withdrew its opposition in court. Mr Nuuyuni explained that he interpreted the words ‘not more than 21 days before the hearing’ to mean ‘shall not exceed 21 days counting backwards from the date of hearing . . .’. In a nutshell, the non-compliance was ascribed to the incorrect interpretation of rule 17(1). Although Mr Nuuyuni is equally bound by the rules of this Court, he is unrepresented and appeared in person, with the assistance of an able translator. He recognised his mistake and timeously launched the application for condonation. This Court has held that although lay litigants are equally bound by the rules of court, they cannot be expected to ‘fully appreciate the finer nuances of litigation,’ and that in proper instances, a court should overlook minor irregularities and seek to identify the substance of the case brought by the litigant. This is one of those instances. The explanation was reasonable and the prospects of success are apparent from the order we make. The non-compliance is condoned. # [51]Counsel for the respondent failed to file a power of attorney in terms of the rules of court. Condonation for this non-compliance was not opposed. In the interests of justice and counsel’s word that as officer of the court, she is authorised to represent the Town Council in this appeal, condonation is granted. # [52]As regards costs, the appellant, Mr Nuuyuni, being successful, is entitled to be awarded his disbursements in instituting and succeeding in the appeal. # [53]In the result, I make the following order: 1. The appeal is upheld with costs and such costs shall be limited to disbursements. 2. The order of the High Court is set aside and is substituted with the following: ‘The application is dismissed with costs and such costs shall be limited to disbursements.’ _______________________ **SCHIMMING-CHASE AJA** __________________ **MAKARAU AJA** __________________ **PRINSLOO AJA** APPEARANCES APPELLANT: | M Nuuyuni ---|--- | In Person | RESPONDENT: | K Angula | Of Angula Co Incorporated 1 The Town Council attempted to challenge Mr Nuuyuni’s customary land rights, but failed to explain why it entered into a compensation agreement with him for those rights, if, as it averred _a quo_ , he did not hold such rights. 2 Compensation policy guidelines for communal land approved in terms of Cabinet Decision No. 17/15.09.09/003 of 15 September 2009. 3 The Town Council does not identify the exact erven, nor does the compensation agreement. 4 These erven do not form part of the present dispute. 5 _Kashela v Katima Mulilo Town Council & others_ 2018 (4) NR 1160 (SC). 6 The Townships and Division of Land Ordinance 11 of 1963 was repealed by the Urban and Regional Planning [Act 5 of 2018](/akn/na/act/2018/5), which came into force on 3 September 2018. 7 _China Harbour Engineering Co Ltd v Erongo Quarry and Civil Works (Pty) Ltd & another _2016 (4) NR 1078 (HC) para 13. 8 _Stuurman v Mutual & Federal Insurance Company of Namibia Ltd_ 2009 (1) NR 331 (SC). 9 Ibid, para 21. 10 _China Harbour Engineering Co Ltd v Erongo Quarry and Civil Works (Pty) Ltd & another _2016 (4) NR 1078 (HC). 11 Joubert (ed) _The Law of South Africa_ vol 27 p 49. 12 _Temptations Fashion CC & another v J Henning Properties (Pty) Ltd & another: In re: J Henning Properties (Pty) Ltd & another v Temptations Fashion CC & another_ (SA 138/2023) [[2024] NASC 2](/akn/na/judgment/nasc/2024/2) (1 March 2024) para 23. See also _Oglodzinski v Oglodzinski_ 1976 (4) SA 273 (D) at 2-7F. 13 _Kashela v Katima Mulilo Town Council & others_ 2018 (4) NR 1160 (SC). #### __Related documents ▲ To the top >