- June 6, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Reasons for Orders: Practice Directive 61
In this matter, the Purchaser and the Deputy Sheriff duly concluded an agreement of sale on 19 June 2019. The waiver by the Government to allow the property which is agricultural land to be sold to the Purchaser was issued on 23 October 2019, as a consequence, the purchase price and any other related fees to the Deputy Sheriff became due and payable. The Purchaser similarly on her version concedes that she did not comply with the conditions of sale because Agribank Namibia has been delaying the disbursement of the loan to her and has to date not given any written response. It had been almost three years since the sale transaction took place.
Deputy Judge-President Angula had to assess three points of contention. Firstly, whether the plea of lis pendens found application in the matter. Secondly, whether the Deputy Sheriff was entitled to cancel the sale in execution of the property held on 19 June 2019. And lastly, whether the Deputy Sheriff was entitled to an order ejecting the Purchaser from the property.
Whereas the following order was made:
- The sale in execution of Farm Janine No. 365, situated in Kunene Region which took place on 19 June 2019 is hereby cancelled.
- The Deputy Sheriff for the District of Outjo is ordered to refund the amount of N$711 000 to the purchaser, Ms Katrina Shimbulu.
- The purchaser is to vacate Farm Janine No. 365, within 30 days from the date of this order failing which the Deputy Sheriff is hereby authorized to take such steps as are necessary to evict the purchaser from Farm Janine No. 365 failing which the Deputy Sheriff is authorized to seek the assistance of the members of the Namibian Police Force who are hereby directed to render assistance to the Deputy Sheriff.
- No order as to costs.
- The matter is finalized and is removed from the roll.
The reasons for the order were later given as follows:
The law on rule 110(10) and (14):
Rule 110(10) of the rules of the High Court provides that if the purchaser fails to carry out any of his or her obligations under the conditions of sale a judge may, on the report of the deputy-sheriff after due notice to the purchaser, summarily cancel the sale and the property may again be put up for sale.
On the other hand, rule 110(14) provides that the Deputy Sheriff may, on 10 days’ notice to the Purchaser, apply to a Judge for an order ejecting a Purchaser who took possession of a property pursuant to a sale in execution but failed to comply with the conditions of sale..’
The overall guidance to a Court in determining applications brought under rule 110 is the need to expedite proceedings in the interests of the judgment creditor and other interested parties.
The Purchaser has only those rights that are to be found within the four corners of the sale agreement. If the guarantees are late, even though the purchaser might be blameless, there is no legal basis upon which to challenge the right of election vested in the Deputy Sheriff in clause 7 of the sale agreement to apply for cancellation of the sale to a judge in chambers. In any ordinary contract, a provision vesting a right to cancel upon the happening or no-happening of a specified event by a stipulated date is not susceptible to challenge. The election is not a breach of the contract. The mantle of judicial supervision over a sale in execution and its cancellation does not create more or better rights for the defaulting Purchaser.
It appeared ex facie on the conditions of sale that the Purchaser is in unlawful possession and occupation of the property. The Court justifies this in terms of clause 9 of the conditions of sale which provide that ‘the Purchaser shall take possession on the date of obtaining the waiver and payment of the full purchase price, which date the risk pertaining to the property shall pass to him or her.’ Clearly after obtaining the waiver, the full purchase price had not been paid.
Having regard to the facts and consideration above, the Court concluded that the Deputy Sheriff was entitled to an order ejecting the Purchaser from the property.
Whereas the Court ruled that the sale in execution of Farm Janine No. 365, which took place on 19 June 2019 is hereby canceled. The Deputy Sheriff for the District of Outjo was also ordered to refund the amount of N$711 000 to the purchaser. The purchaser is to vacate Farm Janine No. 365, within 30 days from the date of the order failing which the Deputy Sheriff is hereby authorised to take such steps as are necessary to evict the purchaser from Farm Janine No. 365 failing which the Deputy Sheriff is authorised to seek the assistance of the members of the Namibian Police Force who are hereby directed to render assistance to the Deputy Sheriff.