Court orders ‘BH’ to pay N$50m to Nedbank
The High Court has ordered northern businessman Benjamin Hauwanga, his wife Mirjam Summan Hauwanga, and their company BH Properties CC to jointly pay more than N$50 million to Nedbank Namibia, ruling that the bank was within its rights to demand full repayment of the debt without prior notice.
The decision, delivered on Friday by Acting Judge Deon Obbes, brings to an end a three-year legal battle between the lender and the well-known entrepreneur, who has vast business interests across Namibia and Angola.
The case arose from an overdraft facility of N$49 million, a revolving home loan of about N$70 000, and a credit card facility advanced by Nedbank to Hauwanga in January 2021 to support his business operations. The facilities, according to the court, were demand facilities—meaning that the bank could require full repayment at any time, at its discretion, and in line with standard banking practice.
Judge Obbes ruled that there was no contractual or legal obligation on Nedbank to first issue a formal breach notice before calling up the facility, as the defendants had argued. “Being demand facilities, such facilities are repayable at Nedbank’s discretion in accordance with normal banking practice,” the judge said, adding that the claim was not premature.
The order compels Hauwanga, his wife, and BH Properties to jointly pay N$50 million, plus interest at 14.8% per annum from 21 October 2022 until the date of full payment. The court also declared three of Hauwanga’s properties specially executable, meaning they can be sold to recover the debt.
These properties include a sectional title unit at West Side Valley in Windhoek, a property at Erf 1795 in Pioneerspark, and a large plot at Erf 1537, Oshikango Extension 5, situated in the Helao Nafidi area of the Ohangwena Region. All three properties had been mortgaged to Nedbank as security for the loans.
Hauwanga’s argument dismissed
Hauwanga and his co-defendants argued that the bank had not followed due process before demanding payment, contending that clause 15 of their agreement required Nedbank to issue a formal notice of breach and allow them time to fix any default. They further claimed that the bank’s case was premature, as no such notice had been properly delivered to them. Hauwanga maintained that he had not defaulted on agreed repayment terms, as the overdraft arrangement had no fixed expiry date and repayment schedules were subject to review.
However, the court found that clause 15 was inapplicable to the type of facilities involved and that the bank’s demand was in accordance with normal banking practice. The judge stressed that the facilities were repayable on demand, and as such, no breach notice was necessary before legal action could be taken.
Evidence before the court
Nedbank called two key witnesses — former legal collections manager Elizabeth Ben-Elungu and retired relationship manager Fransina De Wet — who testified that the facility had been reviewed several times since 2018 and that the bank had repeatedly requested updated financial information from Hauwanga and his companies.
De Wet told the court that Hauwanga had consistently failed to provide audited financial statements, tax clearance certificates, and other documents required for the annual review of the facilities. The bank eventually called up the facility in July 2022, after several warnings, and formally demanded payment in November that year. Ben-Elungu confirmed that the bank’s legal department issued a letter of demand on 4 November 2022, and that the defendants failed to pay the outstanding amount or make alternative arrangements.
The court awarded costs against Hauwanga and his co-defendants on a punitive attorney-and-client scale, a measure often reserved for cases where the court finds no merit in the defence. The matter was declared finalised and removed from the roll.
The decision, delivered on Friday by Acting Judge Deon Obbes, brings to an end a three-year legal battle between the lender and the well-known entrepreneur, who has vast business interests across Namibia and Angola.
The case arose from an overdraft facility of N$49 million, a revolving home loan of about N$70 000, and a credit card facility advanced by Nedbank to Hauwanga in January 2021 to support his business operations. The facilities, according to the court, were demand facilities—meaning that the bank could require full repayment at any time, at its discretion, and in line with standard banking practice.
Judge Obbes ruled that there was no contractual or legal obligation on Nedbank to first issue a formal breach notice before calling up the facility, as the defendants had argued. “Being demand facilities, such facilities are repayable at Nedbank’s discretion in accordance with normal banking practice,” the judge said, adding that the claim was not premature.
The order compels Hauwanga, his wife, and BH Properties to jointly pay N$50 million, plus interest at 14.8% per annum from 21 October 2022 until the date of full payment. The court also declared three of Hauwanga’s properties specially executable, meaning they can be sold to recover the debt.
These properties include a sectional title unit at West Side Valley in Windhoek, a property at Erf 1795 in Pioneerspark, and a large plot at Erf 1537, Oshikango Extension 5, situated in the Helao Nafidi area of the Ohangwena Region. All three properties had been mortgaged to Nedbank as security for the loans.
Hauwanga’s argument dismissed
Hauwanga and his co-defendants argued that the bank had not followed due process before demanding payment, contending that clause 15 of their agreement required Nedbank to issue a formal notice of breach and allow them time to fix any default. They further claimed that the bank’s case was premature, as no such notice had been properly delivered to them. Hauwanga maintained that he had not defaulted on agreed repayment terms, as the overdraft arrangement had no fixed expiry date and repayment schedules were subject to review.
However, the court found that clause 15 was inapplicable to the type of facilities involved and that the bank’s demand was in accordance with normal banking practice. The judge stressed that the facilities were repayable on demand, and as such, no breach notice was necessary before legal action could be taken.
Evidence before the court
Nedbank called two key witnesses — former legal collections manager Elizabeth Ben-Elungu and retired relationship manager Fransina De Wet — who testified that the facility had been reviewed several times since 2018 and that the bank had repeatedly requested updated financial information from Hauwanga and his companies.
De Wet told the court that Hauwanga had consistently failed to provide audited financial statements, tax clearance certificates, and other documents required for the annual review of the facilities. The bank eventually called up the facility in July 2022, after several warnings, and formally demanded payment in November that year. Ben-Elungu confirmed that the bank’s legal department issued a letter of demand on 4 November 2022, and that the defendants failed to pay the outstanding amount or make alternative arrangements.
The court awarded costs against Hauwanga and his co-defendants on a punitive attorney-and-client scale, a measure often reserved for cases where the court finds no merit in the defence. The matter was declared finalised and removed from the roll.
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