A judgment delivered by Judge Miller on Tuesday throws a lifeline of hope to thousands of Namibian families at risk of losing their homes due to home-loan default judgment sales in execution.
August Maletzky has successfully led a group of 29 applicants in winning the first round of the battle they embarked upon against leading commercial banks in Namibia, the City of Windhoek, Swabou, the Minister of Justice, Registrar of the High Court, Clerk of the Magistrate’s Court, the Attorney General, a string of legal firms, as well as Bank of Namibia and the National Housing Enterprise. In total forty respondents are listed in court documents.
According to Maletzky’s long-term co-worker, Hendrik Christian, the original application centred around the unconstitutionality of civil servants, namely the Registrar of the High Court and the Clerk of the Magistrates Court, exercising judicial powers by awarding default judgements, which lead to the sale in execution of people’s homes.
Christian explained that a Rule 5 application was lodged by lawyers representing the big banks and the state, citing irregularities in the application made by the aggrieved home owners.
The judgment delivered by Judge Miller said that, “I am prepared to accept that individually and collectively, the steps taken and complained of are to a greater of lesser degree irregular, thus rendering the papers filed by the applicants less than perfect. However, when looking at the papers as a whole, imperfect as they may be, none of the respondents who complain about them can show that they are prejudiced by these irregularities.”
Judge Miller also ruled that “In the result the applications are dismissed with costs, such costs are to be limited to necessary expenses and disbursements.” Christians explained that the respondents wanted the home owners’ main application to be dismissed with costs, but now their application has been dismissed and they must pay. This seminal judgment means that the main case can now continue.
Isaac Hamata of the Namibia Financial Institution’s Supervisory Authority (NAMFISA), explained that because the matter is still under litigation, NAMFISA did not wish to comment at this time, but he pointed out that the lawyers are currently compiling the bill of costs.
Meanwhile, Bank of Namibia spokesperson, Ndangi Katoma, responded to questions arising from accusations made by Erica Beukes of the Namibia Home Owners Association. “One of the Bank of Namibia’s mandates is to regulate and supervise deposit-taking institutions to ensure compliance with all prudential requirements, as stipulated in the Banking Institution’s Act No 2 of 1998 as amended. The allegation implying that the Bank of Namibia does not carry out its functions is unfortunate. The bank is committed to protect consumers of banking services should they experience unfair treatment by commercial banks provided that concrete evidence is presented to support the specific complaints,” he said.
In February the Ombudsman, John Walters, also filed a case in the High Court suing government, the Minister of Justice and the Attorney General in an attempt to get the High Court to declare the process of selling homes in execution of default judgement illegal. The High Court has since placed a moratorium on the auctioning of houses on the basis of default judgements.