Court name
High Court Main Division
Title

CAPX Finance Namibia v GFS Investments () [2020] NAHCMD 383 (27 August 2020);

Media neutral citation
[2020] NAHCMD 383

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

 

RULING I.T.O. PRACTICE DIRECTIVE 61

 

                                                                                            

CASE NO.  HC-MD-CIV-ACT-CON-2017/02748

 

In the matter between:

 

CAPX FINANCE NAMIBIA (PTY) LTD                                                          APPLICANT

 

and

 

GFS INVESTMENTS CC                                                                              1ST RESPONDENT

DAVID RISURO                                                                                              2ND RESPONDENT

LOMPIE ANASTAS LANGANI                                                                     3rd RESPONDENT

 

Neutral Citation: CAPX Finance Namibia (Pty) Ltd v GFS Investments CC (HC-MD-CIV-ACT-CON-2017/02748) [2020] NAHCMD 383 (27 August 2020)

 

CORAM:   MASUKU J

 

Heard on: 09 June 2020

Delivered: 27 August 2020

 


ORDER


 

  1. The following property is hereby declared specially executable:

 

           CERTAIN:                 ERF 1870, SWAKOPMUND EXTENSION NO.1

 

            SITUATE:                   REGISTRATION DIVISION “G”

                       ERONGO REGION

 

MEASURING:           1000 (One Thousand) square meters

 

HELD BY:                 DEED OF TRANSFER NO:  T 3579/1995 (“the property”)

 

  1. The respondents are to pay the costs of the application.
  2. The matter is removed from the roll and is regarded as finalised.

 

 


REASONS FOR THE ORDER


 

MASUKU J:

 

Introduction and background

 

 

[1]        Serving before the court is an application in terms of rule 108 of the High Court Rules of Namibia, wherein the applicant seeks an order declaring certain property described as: Erf 1870 Swakopmund Extension No.1 situate: registration division “G” Erongo region measuring: 1000 (one thousand) square meters held by: deed of transfer no:  T 3579/1995 (“the property”), to be declared specially executable.

 

[2]        The applicant is CAPX Finance Namibia (Pty) Ltd (Registration Number 2013/0534), a company with limited liability and duly registered and incorporated in terms of the company laws of Namibia, with its principal place of business at Number 3 Ganas Street, Auasblick, Windhoek, Republic of Namibia.

 

[3]        The 1st respondent is GFS Investments CC (Registration number CC/2009/1970), a close corporation duly registered and incorporated in terms of the company laws of Namibia, with its chosen domicilium citandi et executandi Unit 23, erf number 8106, Rhino Park, Rhino Street, Windhoek, Republic of Namibia.

 

[4]        The 2nd respondent is Mr. David Risuro, an adult male and sole member of the first respondent, with his chosen domicilium citandi et executandi at Unit 23, erf number 8106, Rhino Park, Rhino Street, Windhoek, Republic of Namibia.

 

[5]        The 3rd respondent is Mr. Lompie Anastas Langani, an adult male with his chosen domicilium citandi et executandi at Unit 23, erf number 8106, Rhino Park, Rhino Street, Windhoek, Republic of Namibia.

 

[6]        The applicant and the 1st respondent entered into a written loan agreement in terms of which the applicant lent and advanced money to the 1st respondent. The 2nd and 3rd respondents bound themselves in their personal capacities jointly and severally in solidum as surety and co-principal debtors for the due repayment of the 1st respondent’s debt to the applicant.

 

[7]        The present proceedings were then instituted as a result of the respondents’ failure to fulfil their repayment obligations in terms of the agreement. According to the applicant, at the date of inception of this application, the respondents were indebted to the former in the amount of N$ 911,252.68. Default judgment was granted in favour of the applicant on the aforementioned amount on 07 November 2017.

 

The argument

 

[8]        The respondents opposed the application on grounds inter alia that; the said property was the 2nd respondent’s childhood home in which he grew up and in which he, his spouse and his parents reside; that the sale of the immovable property will not fully satisfy the judgment debt; that the 2nd respondent is currently engaged with property transactions in respect of which tangible arrangements will be made from the proceeds thereof within a reasonable time to pay the applicant; and that other reasonable ways exist to normalise the account and to service the debt over the remaining loan terms. According to the respondents, the best option for the parties would be to await the fruition of the property transactions they are currently engaged in. As a result the respondents hold the view that there are alternative means to settle the debt than declaring the property specially executable.

 

[9]        At the hearing of the matter, the applicant submitted that the respondents seek an indulgence for the matter to be held in abeyance for an indefinite period of time particularly, pending the fruition of the property transactions that they are involved in. According to the applicant, the respondents have failed to make any interim proposals as to how they will go about servicing the debt. The applicant submits that the respondents have adopted an arms folded approach, and that they have failed to make out a case for the court to exercise its discretion in their favour.

 

[10]      The applicant went on to submit further that in the circumstances of this case, there exist no alternative means, which are reasonable and less drastic to settle the debt. According to the applicant, where no such suitable or alternative means are alleged or apparent, the court must then declare the immovable property executable.[1]

 

[11]      It was the applicant’s further contention that even if the court were to make a further enquiry into this case, that it could only have regard to legally relevant circumstances.[2]

 

[12]      The respondents contend that once their building projects yield fruit, they will be in a position to settle the outstanding debt. They place the blame for their inability to pay on the economic crisis in the country and further state that due to this crisis, the Development Bank of Namibia declined their application for funding. However, despite this, the respondents rely on their solar power plant at Henties Bay Projects as a means by which they will be able to service the debt should the projects bear fruit. This will only happen if the applicant affords them more time, they further argue.

 

[13]      The second respondent submitted further in argument that at the moment his hands are tied and that he would like to meet with the lawyers of the applicant in order to try and come to an amicable solution in servicing the judgment debt.

 

Determination

 

[14]      It has been held in a number of cases that 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 the judgment debtor. As a result, substantial compliance with Form 24 (requiring that service be personal service) would suffice.[3] Notwithstanding this, the court must also consider all relevant circumstances including 'less drastic measures than a sale in execution’.[4]

 

[15]      The notion that a debtor’s property should be available to satisfy its debts is universally accepted, and this is the case even where residential property is concerned.

 

[16]      As rightly submitted by the applicant, the respondents’ opposition is based on the expected but indeterminate fruition of the property projects that they allege they are currently engaged in. That is, to mean it might or might not happen[5] and the happening of which cannot be reasonably estimated.

 

[17]      The court, in the circumstances finds no reason why the relief sought by the applicant should not be granted. The requirements for the granting of the order as sought have been met by the applicant and there is no legal basis upon which the relief may not be granted. The respondents have failed to show that there are other viable means open to be explored to repay the debt than to declare the property in question specially executable.

 

[18]      It is for the foregoing reasons that the court makes the following order:

 

  1. The following property is hereby declared specially executable:

 

           CERTAIN:                 ERF 1870, SWAKOPMUND EXTENSION NO.1

 

            SITUATE:                   REGISTRATION DIVISION “G”

                       ERONGO REGION

 

MEASURING:           1000 (One Thousand) square meters

 

HELD BY:                 DEED OF TRANSFER NO:  T 3579/1995 (“the property”)

 

  1. The respondents are to pay the costs of the application.
  2. The matter is removed from the roll and is regarded as finalised.

 

 

________________

T.S Masuku

Judge

 

 

APPEARANCES:

 

APPLICANT:             C. Schickerling

                                  Of Etzold Duvenhage,

Windhoek

 

RESPONDENTS:    D. Risuro

                                Respondent in person

                                 Windhoek

 

 


[1] First National Bank of Namibia v Musheti [2017] NAHCMD 304 (18 October 2017).

[2] Standard Bank Namibia Limited v Heita [2018] NAHCNLD 137 (04 December 2018).

[3] Standard Bank Namibia v Shipila and Others (SA 69/2015) [2018] NASC 395 (06 July 2018).

[4] Futeni Collections (Pty) Ltd v De Duine (I 3044-2014) [2015] NAHCMD 119 (27 May 2015).

[5] Standard Bank Namibia Limited v Africa (I 977/2014) [2019] NAHCMD 22 (13 February 2019) at para 34.