Paratus, CoW in legal quagmire
24 February 2020 | Local News
Candidate legal practitioner Bradley Khoa of the Legal Assistance Centre (LAC) explained that by law, no party may take into their possession the property of another without a court order or consent of such party. However, he added that although he has not been provided with any legal directive from the City that stipulates under what authority it possessed the Paratus property, it may well be in their jurisdiction to do so without a court order.
At the scene where the equipment was seized, Paratus was informed that they were in contravention of a bylaw of a Local Authorities Act, because they were causing damage to the sidewalks.
Khoa said that depending on the wording of such a bylaw and authority, its legal validity can be ventilated before a court of law. “The essence and validity of such statutory lien will have to be proven against a strict test for constitutionality,” he said.
The managing director of Paratus, Andrew Hall, admitted that they had received a letter the day before the seizure, in which it was stated that they [Paratus] are continuing to engage in unauthorised excavation, trenching and putting up structures on municipal property. “Accordingly, you are hereby instructed with immediate effect, to cease all your trenching installation operations until such time that operations can be legalised,” the municipal letter read.
However, Paratus is also in possession of a stamped document stating they had obtained the necessary permissions to continue digging trenches to install optic fibre.
Thus Paratus decided to continue with the work.
“But,” Khoa says, “the city may review and revoke a prior decision made.”
He noted that he would have to study the initial approval and the revocation would be needed to provide a more comprehensive answer.
“However, the process of review will also need to stand the test of legality providing that such revocation is based on any new information, the City may not have had at the time of its making,” he said.
According to him, Paratus would also in this instance not be without remedy should they have relied on the initial approval and incurred expenses for such work prior to the revocation. “They can certainly file action against the City to claim back the costs incurred on reliance of such initial approval.”
While no bylaws were found before going to print, according to the Local Authorities Act 23 of 1992, “any person who without the prior approval in writing from the local authority council constructs, closes or diverts any street in its area or erects any building or other structure, or refuses or fails to comply with an order, will be guilty of an offense.”
The act also stipulates that a local authority may order any person who has contravened or failed to comply with the provisions, to demolish or alter any building or structure referred to above, restore the surface of the street to its former condition. “If a person refuses or fails to comply with the order within the specified period, the local authority council may use such steps as may be necessary in order to comply with such notice and recover the costs connected therewith from the person concerned.”
More than a week since the incident, questions directed to the City of Windhoek regarding this issue are yet to be answered.
Asked if the City “stole” the equipment from Paratus, Khoa said that theft generally requires that the “thief” has the intention to permanently deprive the owner of their property. “Paratus would have grounds to institute an urgent application against the City for a ‘mandament van spolie’ order, and essentially ask the Court to direct the City to return its property.”
Khoa said that the constitutionality of such authority can be challenged, while the City can also allege and evidence in its papers the necessary authority it had to confiscate such property.
A “mandament van spolie” order promotes the rule of law and serves as a shield against cases of self-help, where parties take the law into their own hands and exercise “power” which they do not have.