Acting Deputy Sheriff for the District of Swakopmund Visser v January and Another (HC-MD-CIV-MOT-GEN-2024/00339) [2025] NAHCMD 264 (20 May 2025)

Case Title:

The Acting Deputy Sheriff Applicant

for The District of Swakopmund Visser

and

Marcello Seth Amour January First Respondent

Christal Griselda Audrey January Second Respondent

Case No:

HC-MD-CIV-MOT-GEN-2024/00339

Division of Court:

Main Division

Heard on:

16 May 2025

Heard before:

Honourable Justice Usiku

Reasons released on:

20 May 2025

Neutral citation: The Acting Deputy Sheriff for The District Of Swakopmund Visser v January (HC-MD-CIV-MOT-GEN-2024/00339) [2025] NAHCMD 264 (20 May 2025)

Order:

1. The applicant’s application is dismissed.

2. I make no order as to costs.

3. The matter is removed from the roll and is regarded finalised.

Reasons for order:

USIKU J:

Introduction

[1] This is an opposed eviction application brought by the applicant (the Acting Deputy Sheriff for Swakopmund) against the respondents who are presently the registered owners of the immoveable property in question.

[2] In his application, the applicant asserts that the property was declared specially executable by virtue of a court order granted in favour of Standard Bank (the judgment creditor) on 6 August 2021.

[3] A writ of execution in respect of the property was issued. On 23 April 2024, the property was sold in execution to Standard Bank and transfer is yet to be passed to the purchaser.

[4] The applicant asserts that the respondents no longer have the right to reside on the property.

[5] The applicant states further that, in terms of rule 111(2), he is obliged to give transfer of the immoveable property to the purchaser and despite the sale, the respondents continue to reside on the property.

[6] It is also the assertion of the applicant that the legal practitioners of Standard Bank cannot obtain respondents’ cooperation to enable them to access the property in order to obtain the necessary building compliance certificate, in order to pass transfer of the immoveable property.

[7] The respondents oppose the application.

Analysis

[8] It is common cause that the respondents are still the registered owners of the property. Until the immoveable property sold in execution has been transferred into the name of the purchaser, the judgment debtor’s ownership therein remains undisturbed, as does his or her right qua owner, to the use thereof.¹ The transfer of such property to the new owner, brings about an end to the legal basis of the judgment debtor’s right to the use of the property. ²

[9] The deputy sheriff is a creature of statute and only has such powers as the enabling statute has vested in him. The rules of this court allow the deputy sheriff to deal with the property in order to effect its sale and subsequent registration into the name of the purchaser. An attachment of the property places the property in the hands or under the custody of the deputy sheriff but does not affect the judgment debtor’s dominium in the attached property.³

[10] In my opinion, the declaration of the property as executable, the attachment of the property and the sale of the property in execution, do not bring about an automatic end to the registered owner’s right to occupy the property. It is the transfer of the property into the name of the new owner that brings about that result.

[11] I am therefore not persuaded by the applicant’s assertion that the respondents are unlawfully residing on the property.

[12] Furthermore, I am not persuaded that the applicant has put forth evidence that the respondents frustrate or have frustrated efforts of the judgment creditor’s legal practitioners or the municipal officials from accessing the property for the purposes of obtaining the required building clearance certificate. There is simply no evidence to that effect and assertions to that effect have been denied by the respondents. The letters referred to in the applicant’s confirmatory affidavits dated 22 May 2024 and 31 May 2024, addressed to the respondents, do not ask the respondents to allow access to the property for the purposes of procuring a building compliance certificate but rather demand the respondents’ immediate vacation of the premises and delivery of the keys to the applicant.

[13] All in all, I am not persuaded that, at this stage, the applicant is entitled to the relief that it seeks. The application, therefore, stands to be dismissed.

[14] As regards the issue of costs, I am of the view that, in the circumstances of this case, each party should bear its own costs.

[15] In the result, I make the following order:

1. The applicant’s application is dismissed.

2. I make no order as to costs.

3. The matter is removed from the roll and is regarded finalised.

Judge’s signature

Note to the parties:

B Usiku

Judge

Not applicable

Counsel:

Applicant:

Respondents

Adv R Hite

Instructed by Engling, Stritter and Partners,

Windhoek

M January

First Respondent, In person,

Windhoek