CIVIL PROCEDURE – SALE OF IMMOVABLE PROPERTY – STRICT COMPLIANCE WITH RULE 110(10) – RULE 112 – SUPERANNUATION – WHETHER ACTIONS OF DEPUTY SHERIFF AMOUNT TO ADMINISTRATIVE ACTION SUBJECT TO REVIEW UNDER RULE 76. Hanus Properties and Consultants CC v The Deputy Sheriff for the District of Swakopmund NAHCMD (13 October 2023)

The dispute revolves around immovable property at Erf no. 2277, Swakopmund, initially registered in the name of Hanus Properties, with Mr. Von Lüttichou as the sole member. Standard Bank financed the purchase, but arrears and a default judgment led to a sale in execution, ultimately resulting in Mr. Mouton becoming the owner of the property.

On August 11, 2022, this matter came before the court on an urgent basis, with the applicants, Hanus Properties and Consultancies CC, and Mr. Harold Arthur Von Lüttichou, seeking an interdict against the first and third respondents to prevent the transfer and registration of immovable property situated at Erf 2277, Extension 8, Swakopmund, pending the finalization of Part B of the Notice of Motion. The respondents in this case included the deputy-sheriff, Standard Bank Namibia Limited, Mr. Conroy Mouton, the Registrar of Deeds, and the Registrar of the High Court. Standard Bank was the only respondent opposing the application.

During the proceedings, an agreement was reached to address Part A of the Notice of Motion, which included condoning non-compliance with certain rules, interdicting Mr. Mouton from transferring the property and imposing conditions on any agreements concerning the property.

On November 29, 2022, the applicants filed an amended notice of motion seeking to review and set aside certain actions and decisions related to the sale and transfer of immovable property, Erf no. 2277, Swakopmund.

In their application, the applicants raised several grounds for review, which included the invalidity of the writ of attachment due to the lack of revival of the judgment, failure to properly attach the immovable property as per the rules, non-compliance with public auction requirements, the failure to cancel the sale in execution on March 24, 2022, and other irregularities in the actions of the deputy-sheriff regarding the sale in execution.

Mr. Von Lüttichou, in his comprehensive founding affidavit, contested the validity of the sale, presenting the following reasons: First, he argued that the writ of attachment was invalid due to the lack of judgment revival, rendering the attachment and subsequent sale invalid.

Additionally, he pointed out a failure to comply with rule 110(8) as the auction was not held publicly, raising concerns about a telephonic bid during the 12 July 2022 auction, which he found irregular. He also argued that the 24 March 2022 sale was not cancelled despite a lack of compliance with the conditions of sale, as per rule 110(10). Furthermore, Mr. Von Lüttichou contended that the two auctions were not properly advertised, causing prejudice to the applicants.

He also raised concerns about irregularities by the deputy-sheriff, particularly regarding the creation of a WhatsApp group for the sale, which he believed compromised the execution process. After the initial filing, Mr. Von Lüttichou submitted a supplementary affidavit, addressing additional issues such as alleged tampering with documents in the deeds office, late payment of transfer duties, the validity of the power of attorney, compliance with the Local Authorities Act, and irregularities related to the request for expedition and the purchaser’s failure to meet the sale conditions.

In response to the applicants’ challenge, Mr. Colmer, representing Standard Bank, argued that the relief sought by the applicants is not competent under rule 76, which is designed for reviewing decisions or proceedings of administrative bodies or officials. He contended that the deputy-sheriff is an official of the court who conducts sales in execution according to court rules, and thus, the sale process is not administrative in nature and cannot be subject to review.

Mr. Colmer provided comprehensive responses to the grounds of review raised by the applicants, including the validity of the writ of attachment, failure to attach the immovable property as per rule 109(3), concerns about rule 110(8) regarding the public nature of the auction, the non-cancellation of the March 24, 2022 sale, compliance with rule 110(3 on advertising auctions, and allegations of irregularities by the deputy-sheriff. He argued that the complaints lacked merit and should be dismissed.

A crucial issue in the case is whether the actions of a deputy sheriff amount to administrative action subject to review under Rule 76. The Bank argues that such review is not applicable, while the applicants contend it is. They cite various cases to support their positions, with some arguing that sales in execution constitute administrative action subject to review, while others reject this notion, emphasizing that failure to comply with the rules can render the sale invalid without the need for a separate review process.

The court upheld the point in limine, stating that the actions of the deputy-sheriff do not fall under Rule 76 and are not subject to review.

Ms. Erasmus’ non-compliance with the conditions of sale led to the need for a court order under rule 110(10). The deputy-sheriff, initially aware of this, failed to submit a report for this order due to an oversight. The resale, though in compliance, was not published in local newspapers as the applicants insisted but was done in national newspapers. The complaints against the deputy-sheriff’s conduct were considered invalid, and the court criticized the personal attacks made against him.

The relief sought, involving cancelling the transfer, was contingent on the sale being invalidated due to rule 110(10) non-compliance, but such action wouldn’t change the applicants’ de facto position. The court determined that setting aside the sale would create complications and prejudice an innocent third party, Mr. Mouton, a bona fide purchaser, and consequently, the sale couldn’t be rescinded.

PRINSLOO J

‘[96]    For reasons set out above I am of the view that although there was no strict compliance with rule 110(10) by the deputy-sheriff it would be inappropriate to set the second sale in execution dated 12 June 2022 aside.

Held that:

1. 1. The actions of the deputy-sheriff do not fall within the purview of rule 76 and are not susceptible to review and the point in limine is upheld.
   2. The court order, declaring the immovable property executable is of full force and effect, as there was no application to have that order set aside by a court of competent jurisdiction.
   3. There was no reason to superannuate the judgment as required by rule 112(1) because once a writ of execution of a judgment has been issued, it remains in force and may be executed without being renewed as contemplated in rule 112(3).
   4. A public auction concerns not the place of the auction but the authority by which the sale is held and there can be no doubt regarding the latter.
   5. The applicants did not avail any authority to this court fortifying their submission that the failure of the bidder to be physically present at the auction would impede the integrity of the process.
   6. In the current instance, there was a valid agreement of sale in respect of the first sale and that sale had to be set aside in order to proceed with a resale.
   7. The discretion whether to cancel the sale or not lies with the judge to whom the report is submitted for consideration.
   8. Rule 110(3) does not provide that the publications must be done in local newspapers but instead provides for the publication in two suitable newspapers circulating in the district in which the property is situated.
   9. The national newspapers wherein the publications were done are suitable newspapers with a much broader base of readers than what a local newspaper at the coast would have.
   10. Held further that having a forum on an electronic platform advising potential bidders is aimed at broadening the basis of potential buyers.
   11. There was substantive compliance with the rules regarding publication and the WhatsApp group was over and above the publications. The validity of the sale in execution was not reliant on the publication of an electronic platform and therefore, the complaint directed at the conduct of the deputy-sheriff in this regard is without merit.

As a result, the review relief and alternative relief sought by the applicants are dismissed and the applicants are ordered to pay the costs of the application consequent upon the employment of one instructing and two instructed counsel.