Pensioner Hewat Beukes and his wife Erica have taken the fight to retain their residence to the Supreme Court.
In a Supreme Court hearing, presided over by three female justices for the first time in Namibian history yesterday, the Beukes couple wants the court to determine whether the High Court was wrong to declare a directive by the Registrar to declare their property especially executable.
In 2001, the Registrar of the High Court issued a default judgment order against the couple, who are married in community of property and registered owners of Erf 4479, Khomasdal (immovable property).
The said default judgement was subsequently followed by an order of court, declaring the aforementioned immovable property especially executable.
According to them, the action by the registrar was unconstitutional, as the rule that allowed the court was repealed – and as such, it is no longer lawful.
The couple, thus, wants the Supreme Court to declare the default judgment granted by the registrar as null and void.
Further, they want the Supreme Court to declare that the subsequent proceedings that followed, such as the sale of the property, and the order for them to vacate the property must be declared not executable and have no force or effect in law.
The Beukes couple, who appeared in person, also asked to have their exclusive and unrestricted ownership of the property restored and that the whole judgment of the High Court per Judge Thomas Masuku declaring the “default judgment” of 2001 through the registrar be set aside.
Furthermore, they are asking for costs against any respondent that opposes the appeal.
The appeal is opposed by Advocate Thabang Phatela on behalf of lawyer Patrick Kauta and Nedbank Namibia in whose name the property is currently registered.
Phatela questioned whether the findings, decisions and orders of the High Court are open to interference by the Supreme Court.
According to him, the High Court’s judgment adequately considered all the facts and principles of law it was seized with.
“It exercised its discretion on matters that were entirely within such discretion in arriving at the decision to dismiss the application,” Phatela argued.
Thus, there is no reason for the Supreme Court to interfere with that decision/order, and it must not be set aside.
He further said the application by the couple is riddled with procedural deficiencies and devoid of any substantive right.
He asked for the costs to include one instructing and one instructed counsel.
Judges of Appeal Rita Makarau, Hannelie Prinsloo and Esi Schimming-Chase reserved their judgment.
– rrouth@nepc.com.na