- January 20, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Fruit Veg City (Pty) Ltd ta Fresh PM v Rudolph Izaaks t/a Namsea SS (I 3776-2013) [2023] NAHCMD 3 (20 January 2023)
Practice Directive 61: Determined on the papers
Whereas the applicant obtained a default judgment in its favour on 17 June 2015, the applicant brought an application in terms of 108 to declare a certain property specially executable to satisfy the debt stated in that judgment. The respondent was served personally in terms of rule 8(2)(a) with the application on 26 July 2021. Despite being served with the application, the respondent failed to oppose the matter and offer to settle the amount owed to the applicant to date. The matter was heard unopposed whereat Masuku J determined the matter on the papers.
In terms of rule 108(2), where an order declaring property executable is sought to be made in respect of a primary home, the court is obliged to ensure that personal service of the relevant papers on the execution debtor or his or her lessee, is effected. Furthermore, the court is enjoined, having regard to all the circumstances, to consider whether there exist ‘less drastic measures than a sale in execution’ (Futeni Collections (Pty) Ltd v De Duine (I 3044/2014) [2015] NAHCMD 119 (27 May 2015). In this connection, the execution debtor plays a pivotal role in placing before the court relevant circumstances pertinent to the existence of less drastic measures to possibly avert a sale in execution.
In this matter, it appeared that the property in question was a primary home. The respondent did not, despite the necessary personal notice, file any papers or place any relevant information regarding his ability to settle the amount in question before court. The application thus stood uncontested. In the case of Kisilipile v First National Bank of Namibia Limited (SA 65 of 2019) [2021] NASC 52 (25 August 2021) the Supreme Court held that:
‘[18] In Namibia, judicial oversight takes the following form when it comes to declaring a primary home specially executable. If a property is a primary home, the court must be satisfied that there are no less drastic alternatives to a sale in execution. The judgment debtor bears the evidential burden. He or she should preferably lay the relevant information before court on affidavit especially if assisted by a legal practitioner, either in resisting default judgment or summary judgment. The failure to do so however does not relieve the court of its obligation to inquire into the availability of less drastic alternatives….’
In light of the Kisilipile case, the judgment debtor bears the evidential burden to lay relevant information before court in resisting the application. Generally it would be improper to declare a property specially executable, without the applicant first exploring the possibility of the options given by the respondent as alternatives or rather less drastic measures than a sale in execution of the respondents’ primary home. The respondent did nothing to satisfy the court that there were less drastic alternatives to be followed to avoid declaring the property specially executable, despite the being served with the rule 108 application personally. Consequently there was nothing before the court to be taken into consideration and in the respondent’s favour. The only information before the court was that which was been provided by the applicant.
The court was mindful of the relatively negligible amount of the debt in this matter, but where the respondent has been served personally with the papers, but does not place any material before court pointing to the less drastic measures open, the court is placed in a straight-jacket and has no material facts at hand to avoid granting the relief sought. In exercising judicial oversight, and notwithstanding provisions of rule 108(2), the court ordered the applicant, before deciding on the matter, to once again cause a writ to be issued in relation to movable property, before the ultimate sanction could be issued. In this regard, the deputy-sheriff issued a nulla bona return, which indicated that the respondent was personally served with the writ and upon enquiry, the respondent could not afford to pay the amount of the debt and he also failed to point out any movable property that could be attached and sold in execution.
The court did everything within its power to attempt to avoid the sale of the respondent’s primary home. Sadly, the respondent did not co-operate in this process. The non co-operation, which culminated in the respondent not complying with the demands of the rule, to avoid the sale of the primary home, left the court with no other option at its disposal but to grant the relief sought.
Conclusion
‘[15] I am of the considered view that the provisions of rule 108 are clear in that where less drastic measures are available, they should be considered, as opposed to declaring the property specially executable. On the other hand, where there are no less drastic measures available or placed before the court for consideration, the court cannot lightly refuse an application to declare the property specially executable. In light of the fact that no less drastic alternatives to a sale in execution have been placed before me, the application has to be granted as prayed. The court cannot, in the circumstances, mero motu invent less drastic measures when the respondent does not assist the court in establishing the same.’
As a result, the property was declared specially executable.