PROPERTY LAW – SALE OF PRIMARY HOME IN EXECUTION – LESS DRASTIC MEASURES THAN A SALE IN EXECUTION

PROPERTY LAW – SALE OF PRIMARY HOME IN EXECUTION – LESS DRASTIC MEASURES THAN A SALE IN EXECUTION

Following the default judgment granted in its favour, the applicant bank brought an application in terms of Rule 108 to declare a certain property of the respondent specifically executable to satisfy the judgment debt. The respondents contended that there were viable less drastic measures as opposed to declaring their primary home specifically executable; the first being the loan by Agribank to settle the debts for which the applicant needs to provide permission, and the second measure (in the alternative) being that the applicant had already obtained two orders declaring the respondent’s alternative properties as specially executable and that the sale thereof would extinguish the cumulative debt owed. MASUKU J had to consider the provisions of Rule 108 which provide the procedure for declaring an immovable property specially executable and stated that:

1. Where an order declaring bonded property executable is to be made, the court takes into consideration whether the immovable property concerned is a primary home of a judgment debtor. Notwithstanding this, the court must also consider all relevant circumstances including ‘less drastic measures than a sale in execution (Futeni Collections (Pty) Ltd v De Duine (I 3044-2014) [2015] NAHCMD 119 (27 May 2015)).
2. The respondents provided two less drastic measures that can be followed by the applicant instead of declaring the said property specially executable.
3. It was stated in Futeni that the issue of people losing their homes following unpaid debts is a source of concern in Namibia and therefore, that the rule was promulgated to balance two interests. The first was to regulate the sale of homes in execution when the property in question was a home. The second was to ensure that the giving of credit by financial institutions remained effectual and was not rendered unserviceable.
4. Considering the Futeni case, it would be improper to declare a third property specially executable, without the applicant first exploring the possibility of the options given by the respondents as alternatives or rather less drastic measures than a sale in execution of the respondents’ primary home.

As a result, the application to declare the property specifically executable was dismissed.

FNB Namibia v Ganaseb NAHCMD 21 July 2022