Allexer Namundjembo
The High Court has ordered a Katima Mulilo resident and others to leave a disputed property after ruling that they had no legal right to occupy the land.
The court found they were not entitled to compensation because they failed to prove they had made lawful improvements to the property.
Balwizi Lorraine Mubonenwa, the registered owner of Erf 1049, Katima Mulilo Extension 5, brought the case.
Balwizi Lorraine Mubonenwa approached the court to evict Mavis Mulite Muyakale and all other occupants.
High Court judge Beatrix de Jager, in her judgement dated 16 January, explained that once ownership and possession by another party are established, the owner is entitled to reclaim the property.
“The plaintiff proved her ownership of the property by virtue of the title deed,” said De Jager, adding that it was common cause that the first defendant was in possession of a portion of the property.
The court noted that possession by another person is presumed in law to be unlawful.
“The plaintiff discharged her onus to have the first defendant evicted from the property.”
Muyakale opposed the eviction and filed a counterclaim for N$1.722 million.
She alleged that her family had built and later renovated business structures on the land over several decades and that Mubonenwa had been unjustifiably enriched. She said she had the right to stay on the property because she claimed to have made improvements to it and wanted to be paid for them. The court rejected both defences.
“The issue is not one of lack of locus standi; it is whether the first defendant proved an improvement lien to avert eviction and whether she proved her unjustified enrichment claim,” the court ruled.
The court said Muyakale did not show that he met the basic conditions needed to claim payment for improvements made on the property.
The court referred to the absence of proof that her occupation of the property was lawful.
The court further held that Muyakale did not show that the claimed expenses were necessary or useful improvements that the owner would reasonably have incurred.
“An improvement lien will not be allowed where the owner would never have incurred a similar type of useful expense,” the judgement states.
The court noted that Mubonenwa had made it clear that she did not want the structures and instead sought their removal.
The court also found that Muyakale failed to prove how much she or her family actually spent on the property or the extent to which Mubonenwa had been enriched.
Although valuation evidence placed the market value of the entire property at N$1.722 million, the court said this did not support the claim.
“She provided only evidence regarding the property’s market value. As mentioned earlier, this evidence was deemed irrelevant.”
The unjustified enrichment claim failed for the same reasons.
“For the same reason that the first defendant failed to prove the plaintiff’s enrichment in the context of the improvement lien, she failed to prove it in the context of the unjust enrichment claim,” the judge ruled.
Muyakale also argued that the sale and transfer of the property to Mubonenwa by the Katima Mulilo Town Council were unlawful due to earlier council resolutions and a dispute between the parties’ late fathers.
The court dismissed this argument, noting that no application had been made to set aside the registered title deed and that Namibia’s land registration system protects registered ownership.
The court concluded that Muyakale had no lawful right to remain on the property.
The deputy sheriff was authorised to carry out the eviction, along with assistance from the Namibian Police Force.
The court also dismissed the counterclaim for N$1.722 million and ordered Muyakale to pay Mubonenwa’s legal costs in both the main claim and the counterclaim.
