Supreme Court upholds bank appeal, clears way for home sale
The Supreme Court has overturned a High Court ruling that prevented Standard Bank Namibia from executing against a Dorado Park home over a N$1.5 million debt, finding that the lower court had relied on unproven claims and failed to conduct a proper inquiry under Rule 108.
The appeal stemmed from the High Court’s refusal to declare the respondent’s immovable property specially executable after the bank sought to recover the outstanding mortgage-bond amount.
Court documents indicate that the case follows a March 2023 High Court matter in which Standard Bank sued Ricardo Matias Goagoseb for failing to meet his mortgage-bond obligations.
The High Court found that, although Goagoseb had fallen into arrears of roughly N$400 000, he had consistently made monthly payments and was unable to secure refinancing due to being listed with the credit bureau.
The court ruled that less drastic measures, such as debt restructuring, were available and dismissed the bank’s bid for a sale in execution.
Standard Bank had previously obtained a default judgment against Goagoseb on 24 September 2020, after he fell behind on payments.
The High Court acknowledged the principles of judicial oversight under Rule 108 but emphasised that a primary residence should only be sold as a last resort. It placed significant weight on the respondent’s history of paying N$13 473.55 monthly instalments and his alleged offer to pay N$2 500 toward arrears, while also accepting claims that an ITC listing had hindered his ability to secure refinancing.
Goagoseb had argued that he defaulted on payments due to circumstances beyond his control, following his dismissal from employment. Although he successfully appealed the dismissal and was ordered to be reinstated, his former employer refused to re-employ him, he told the court. On 6 October 2020, he secured a job with the Namibian government.
He then approached the bank with an offer to settle his debt in equal monthly instalments of N$13 473.55, which he said he had consistently honoured, attaching proof of payments to his affidavit.
He further argued that the bank had suffered no prejudice and would receive all amounts due to it, and that if the application were granted, he would suffer prejudice and become homeless with his two minor children.
Fear of losing a home
But the Supreme Court found that the High Court misdirected itself on several fronts.
On appeal, advocate Yoleta Campbell, representing the bank, noted that Rule 108(2) provides for less drastic remedies, such as the attachment and sale of alternative immovable property capable of satisfying the debt, rather than renegotiating payment terms. She argued that a creditor “cannot be forced to reinstate the previous agreement, which has culminated in a judgment.”
Addressing Goagoseb’s claim that a sale would render him homeless, Campbell contended that execution does not automatically result in homelessness, nor is home ownership a prerequisite for avoiding it. She added that the respondent would have needed to demonstrate that he could not afford rent if the property were sold, evidence he did not provide to the court.
Crucially, the Supreme Court found that the High Court erred by treating unproven assertions, such as the alleged ITC listing and the claimed N$2 500 arrears-payment offer, as evidence.
The appeal was upheld with costs, and the matter has been remitted to the High Court for a fresh inquiry under the new Rule 108 framework, requiring full compliance and active judicial probing before a primary home can be declared executable.
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The appeal stemmed from the High Court’s refusal to declare the respondent’s immovable property specially executable after the bank sought to recover the outstanding mortgage-bond amount.
Court documents indicate that the case follows a March 2023 High Court matter in which Standard Bank sued Ricardo Matias Goagoseb for failing to meet his mortgage-bond obligations.
The High Court found that, although Goagoseb had fallen into arrears of roughly N$400 000, he had consistently made monthly payments and was unable to secure refinancing due to being listed with the credit bureau.
The court ruled that less drastic measures, such as debt restructuring, were available and dismissed the bank’s bid for a sale in execution.
Standard Bank had previously obtained a default judgment against Goagoseb on 24 September 2020, after he fell behind on payments.
The High Court acknowledged the principles of judicial oversight under Rule 108 but emphasised that a primary residence should only be sold as a last resort. It placed significant weight on the respondent’s history of paying N$13 473.55 monthly instalments and his alleged offer to pay N$2 500 toward arrears, while also accepting claims that an ITC listing had hindered his ability to secure refinancing.
Goagoseb had argued that he defaulted on payments due to circumstances beyond his control, following his dismissal from employment. Although he successfully appealed the dismissal and was ordered to be reinstated, his former employer refused to re-employ him, he told the court. On 6 October 2020, he secured a job with the Namibian government.
He then approached the bank with an offer to settle his debt in equal monthly instalments of N$13 473.55, which he said he had consistently honoured, attaching proof of payments to his affidavit.
He further argued that the bank had suffered no prejudice and would receive all amounts due to it, and that if the application were granted, he would suffer prejudice and become homeless with his two minor children.
Fear of losing a home
But the Supreme Court found that the High Court misdirected itself on several fronts.
On appeal, advocate Yoleta Campbell, representing the bank, noted that Rule 108(2) provides for less drastic remedies, such as the attachment and sale of alternative immovable property capable of satisfying the debt, rather than renegotiating payment terms. She argued that a creditor “cannot be forced to reinstate the previous agreement, which has culminated in a judgment.”
Addressing Goagoseb’s claim that a sale would render him homeless, Campbell contended that execution does not automatically result in homelessness, nor is home ownership a prerequisite for avoiding it. She added that the respondent would have needed to demonstrate that he could not afford rent if the property were sold, evidence he did not provide to the court.
Crucially, the Supreme Court found that the High Court erred by treating unproven assertions, such as the alleged ITC listing and the claimed N$2 500 arrears-payment offer, as evidence.
The appeal was upheld with costs, and the matter has been remitted to the High Court for a fresh inquiry under the new Rule 108 framework, requiring full compliance and active judicial probing before a primary home can be declared executable.
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