Sale in execution turns sour

06 December 2018 | Justice

In an urgent application in the High Court yesterday, Old Mutual Holdings was accused of acting unreasonably and without justification after the company withdrew instructions to register a property sold on auction.

Old Mutual, it is said, was apparently unhappy with the price the property was sold for. In his founding affidavit, the applicant in the matter, Andre Harris, told the court that on 11 September this year, he purchased the property at 85 Frans Indongo Street for N$4.6 million, at a public auction following foreclosure. He signed the conditions of sale and paid the required deposit and auctioneer fees. Harris is suing Old Mutual, the law firm Etzold-Duvenhage, the deputy sheriff for Windhoek and H. Hendricks Investment CC. He said the deputy sheriff had sold the property on behalf of Old Mutual after Etzold-Duvenhage, acting for Old Mutual, had demanded N$6.5 million against H. Hendricks Investment on the said property. However, Harris said the “property was sold without a reserve price”.

He explained that he tried to get the keys to the property on 12 September but was informed by the deputy sheriff that he could not “immediately take possession of the property because there was a legal dispute”.

What followed was several meetings and lawyers' correspondence until a meeting on 28 September where Harris says Old Mutual asked him to “negotiate a purchase price that was more in line with the amount owing by H. Hendricks Investment”, as they were unhappy with the selling price achieved at the auction. Harris said he made a privileged settlement proposal.

On 5 October, Etzold-Duvenhage informed his lawyer that they had embarked on the process of transferring the property and that on 22 October, the deputy sheriff placed him in possession of the property. Following this, the transfer was delayed because the structure had failed the City's building compliance regulations. This Harris said, he attended to and paid for.

However, by 12:30 on 30 November, after he had delivered the clearance and compliance certificates, Etzold-Duvenhage informed his lawyer that Old Mutual had terminated their mandate to proceed with the transfer of the property.

“We are now under instructions not to proceed with the transfer in view of the intended review application to brought by our client.”

According to Harris, it was no longer Old Mutual's mandate, but in fact the responsibility of the deputy sheriff. Furthermore, the deputy sheriff had signed all the necessary documents for the transfer to be completed. According to Harris, a valid sale was effected and the transfer of the property must be executed according to the conditions of sale and the law. “Should any party wish to set aside the sale or prevent the registrar of deeds from transferring the property into my name, such a party must approach the court and obtain and appropriate court order.”

With regard to his urgency, the last date to lodge documents for transfer at the deeds office was yesterday. Furthermore, his concern was about the festive season, saying he had already spent thousands on the property and that it is risky to spend thousands on security if the property is not in his name.

“I will suffer economic prejudice if the transfer of the property is not completed this year.”

All the respondents in the matter have filed an intention to oppose, save for the deputy sheriff.

Helena Iifo from AngulaCo. Incorporated appears on behalf of Harris while Judge Thomas Masuku presides.


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