High court protection "doesn't filter down to the lower courts" so this Jifa Alum declared magistrates court processes unconstitutional

NAMIBIAN high court judge Shafimana Ueitele, has been dealing with a sensitive case of injustice: a woman lost her home because the Magistrates Court Act did not give her the protections she would have had under the High Court Act. What should a court do when – as here – the law results in such blatant inequality, causing suffering and injustice? For Judge Ueitele, a JIFA alum, the answer was obvious: declare the relevant part of the law unconstitutional. The existing system meant that not all litigants were equal, he reasoned, and the only way to end the injustice was to ensure that the system itself was changed.

Glenda Hiskia works as a security consultant with the United Nations mission in Liberia. Though she is a Namibian, her work contract provides that she must live in Liberia for eight weeks at a time with only a brief break home before the next eight week stint begins.

During 2010 she bought a property in a Windhoek building named Urban Space. That was her Namibian base for a while but after unresolved issues with the body corporate she bought another property and moved there, intending to renovate and then let out her Urban Space accommodation.

Imagine her horror when she came back from Liberia to find the lock of her Urban Space apartment changed. The place had been sold and another family had moved in – all without her knowing anything about it.

She and the alleged new owner had a heated exchange that failed to resolve the situation and they agreed to meet later at the police station. There, the police realized they were not dealing with a case of housebreaking, as the alleged new owner claimed, but with a civil dispute and thus a matter that was out of the hands of the police.

When the two sides consulted their lawyers a complicated story emerged. Hiskia had withheld monthly levy payments in protest at what she claimed was the body corporate’s non-performance. The body corporate, following all the correct legal steps, then claimed N$44 707 in arrears via a letter that Hiskia says she never received.

Still without her knowing about it, the arrears claim escalated to the courts. Eventually, the legal action ran its course and her place was sold by the Messenger of the court in February 2017.

Once all this emerged, Hiskia went to court. She complained that she had been in the dark because the summons and warrants of execution were not properly served on her. Nor were they properly served on the CC of which she was the sole member and that was the registered owner of the property. Though her lawyer pointed to further similar technical flaws in the way the matter was handled, her main attack was on the rules of the Magistrates Court Act. These had allowed the situation to develop to the point where her home was sold even though she had no idea that this was happening.

Under these rules, the clerk of the magistrates court could grant a judgment by default and, without any further proceedings, authorize the issue of a warrant of execution against her property – all without any judicial supervision.

If the matter had been conducted under the rules of the high court, on the other hand, her rights would have been protected. A court would first have been obliged to investigate and agree that the sale could go ahead and only then would the registrar have been authorized to issue a writ of execution.

The high court’s rules would also have imposed a duty on the body corporate to notify her “in person”, and would have allowed her a chance to make representations to the court on why her property should not be sold.

The lack of protection in the magistrates court rules contrasted strongly with the protections in the high court rules and Hiskia argued that this difference, of which she was the victim, violated her constitutional right to equal protection of the law.

Judge Ueitele pointed out that where proceedings take place without service, they are “a nullity” that a court cannot condone. The body corporate’s summons had not been served at the correct address or in the correct way and it was thus defective and invalid to start with.

In his view, the marked difference in protection offered by the high court and the magistrates court was not connected to a rational or legitimate purpose. Litigants before the magistrates court and the high court ought to be treated equally, particularly if they were at risk of their homes being sold. It was unconstitutional for them not to enjoy the same protection.

The Namibian courts had become concerned about the number of people losing their homes due to unpaid debts. For that reason, strict judicial oversight had been introduced – but these high court procedures and protections had not “filtered down to the lower courts” which still allowed sales of immovable property “without any judicial oversight by a magistrate or other judicial officer”.

On these issues, there was a need to align the Magistrates Court Act and its associated rules with those of the high court, he said.

What order would be proper for him to make, having found the situation unconstitutional? A “manifestly discriminatory law” should not be kept on the statute books, but to abolish it without making alternative practical arrangements would cause chaos and even further injustice.

Hiskia’s legal team proposed an appropriate remedy, he said: to harmonize the contentious sections and rules with the process followed in the high court. In cases where insufficient movable property was found to satisfy a debt, a judgment creditor would have to approach a court to request execution against that debtor’s immovable property. It would then be for the court to order execution which it would do “only if the circumstances of the case make it appropriate.”

Judge Ueitele gave parliament 12 months to review the situation and change the rules and process accordingly. In the meantime, apart from declaring the contested sections unconstitutional, he set aside the default judgment against Hiskia as well as the sale of her property in Urban Space.

Finally, he ordered that his judgment be brought to the attention of the authorities including the minister of justice, the attorney general and the head of the magistrates commission.


Hiskia and Another v Body Corporate of Urban Space and Others (HC-MD-CIV-MOT-GEN 2017/00143) [2018] NAHCMD 279 (31 August 2018)


Groups audience: