The Affirmative Repositioning (AR) movement, whose leader Dimbulukeni Nauyoma was granted N$500 bail after he was arrested on Friday, yesterday said it will challenge the constitutionality of some sections of the Squatters Proclamation of 1985, which it says is an extension of the apartheid machinery.
Nauyoma, who faced charges of obstructing police from executing official duties, illegal grabbing of land and instigating public violence, appeared in the Katutura Magistrate's Court yesterday from Windhoek Central Hospital, where he has been nursing injuries.
This was after he and some members of the community in Okuryangava helped erect a shack on municipal land without permission, on behalf of mother-of-two Wilhelmina Shipingana.
When the police arrived on Friday to demolish the shack, Nauyoma is said to have tried to stop them - leading to his arrest.
AR insists the injuries, which allegedly include a fractured shoulder, were deliberately inflicted on Nauyoma, who was clad in an arm sling at court yesterday.
After many hours of deliberations on whether to prosecute Nauyoma or not, the state was granted its wish to prosecute later in the day.
The AR activist was charged together with four other persons, who face charges of assault and threatening, as well as damage to property. This emerged out of their confrontation with a man whom they accuse of being the source of the drama that led to Friday's arrests.
Nauyoma was granted bail of N$500 while the other four, who appeared separately, were released on a warning. The four - represented by Mbushandje Ntinda and Ngakumbire Katjivena - are Emilia Simon, Tuhafeni Kamati, Wilhem Mapele and Ismael Kalumbu.
The four were first granted N$500 bail each, but all asked to rather pay N$200, saying they were too poor to afford the initial amount.
They were then released on a warning, with a condition that they do not contact the complainant Daniel Iyambo or visit his residence.
In 2013, the Supreme Court declared two sections of the Squatters Proclamation of 1985 unconstitutional and invalid.
After Friday's arrest of Nauyoma, AR argued that the police were in violation of this Supreme Court ruling, which supposedly meant no shacks may be demolished without a court order.
In 2013, Acting Judge of Appeal Kate O'Regan ruled in the court's judgement, with Judges of Appeal Gerhard Maritz and Sylvester Mainga agreeing, that provisions of the Proclamation were unconstitutional.
"We are concerned with a Proclamation that seeks to empower landowners, without notice and without a court order, to demolish and remove 'any building or structure intended for human habitation or occupied by human beings'," the judges said. "By definition, therefore, the provision empowers the destruction of homes and dwellings without a court order and then prevents those whose homes have been destroyed from recourse to a court of law unless they can establish that their occupation was lawful."
Police who demolished the Okuryangava shack said the Supreme Court judgement only required a court order in events where an occupied structure is to be demolished. No court order is required to demolish unoccupied structures, police argued.
Lawyer Kadhila Amoomo, representing Nauyoma, said he is under instruction by AR to further scrutinise the Squatters Proclamation of 1985, with a view to challenge its constitutionality in totality. "As soon as my client is in a state to give proper instruction - because he is not medically well now - we have intentions to approach the High Court in order to attack the constitutionality of the Squatters Proclamation 21 of 1985, because we are of the view that it forms an integral part of the apartheid machinery structures, which as that time did not contemplate active participation in land activism.
"During apartheid land activism was not contemplated by the state at that time. So they sought to criminalise activism as it relates to land. This cannot stand in a constitution dispensation such as ours. It's inconsistent with freedom of association and the right to participate in politics."
Magistrate Namwenyo Shikalepo ordered all accused persons to return to court on March 18, 2019. Pieter Johaness Smit prosecuted.