Eveline de Klerk
A Katutura resident scored a landmark victory after a claim to evict her from her home which her husband had sold, without her knowledge, was dismissed and she succeeded in her counterclaim against the buyer.
As a result, Hilma Fredrik, who was taken to court by Megameno Boas Naanda after her husband Gerhardus Christiaan Fredrik sold their Katutura home without her knowledge, had the sale declared null and void by Judge Boas Usiku on Monday in the High Court.
Gerhardus on 24 August 2017 sold the house to Naanda for N$535 000, and the property was transferred and registered at the deed’s registry in Naanda’s name on 28 September 2017.
According to court documents, the sale agreement was entered into by Gerhardus and Naanda only, although the couple were married in community of property. Gerhardus and Naanda also agreed that the couple shall occupy the property until the end of December 2017, because their children were still attending school during that period.
Following the transaction, Naanda in January 2018 approached the couple to inform them that they should vacate the property by the end of January 2018. According to the plaintiff, the first defendant (Gerhardus) requested that they be allowed to remain in the property until the end of February 2018, subject to payment of rent in the amount of N$4 000 per month.
“The first defendant further indicated his intention to buy back the property from the plaintiff,” court documents state. Naanda also informed Fredrik to vacate the house, but she refused as she was unaware that the property was sold. She had no knowledge about the transaction, and only learned that it was sold when a City of Windhoek official disconnected the water.
She refused to leave the house she inherited from her father when he died in 1998. Her husband became a co-owner when they got married in 1991. Fredrik, in her counterclaim, stated that she never received any proceeds from the sale, agreed or signed any documents for the transaction, or knew Naanda.
Delivering his ruling on the matter, Usiku said the Married Persons Equality Act 1 of 1996 – sections 7 and 8 thereof - states that the purchaser has a duty to make reasonable enquiries as to the seller’s marital status, and as to whether the other spouse’s written consent to the sale was needed.
Usiku noted that Naanda failed to make reasonable enquiries and, therefore, cannot rely on the deemed consent provided for under section 8(1)(a) of the Married Persons Equality Act. “The first defendant had told the plaintiff that he would have the second defendant sign the power of attorney to pass transfer as well as other transfer documents, and that he did not ask the first defendant whether he was married, because he did not regard it his business to enquire about other people’s marital statuses. The sale transaction is void and unenforceable, with the consequence that the immovable property reverts to the joint estate,” Usiku stated.
He then dismissed Naanda’s case, and ordered him to pay the cost of Fredrik, whose counterclaim succeeded. “The agreement of sale concluded between the plaintiff and the first defendant on 24 August 2017 in terms of which the first defendant sold to the plaintiff Erf No 3944 Katutura, Extension No 2, in the Municipality of Windhoek, measuring 314 square metres, is declared null and void. The transfer of the aforementioned erf to the plaintiff by virtue of Deed of Transfer No. T 6463/2017 is hereby declared null and void. The Registrar of Deeds is hereby directed to cancel Deed of Transfer No T 6463/2017 in terms of s 80(1) of the Deeds Registries Act 14 of 2015. The plaintiff is ordered to pay the costs of suit of the second defendant occasioned by the counterclaim,” Usiku said, and removed the matter from the court roll. Naanda was represented by Thomas Andima, while Fredrik was represented by advocate Eva Shifotoka.