Pensioners battle on to keep their home

By: WERNER MENGES

TWO Windhoek pensioners who are locked in a legal battle to prevent a bank from evicting them from their home lost a procedural appeal in the Supreme Court on Monday, but scored an important victory on the issue of the costs of their case.

Pensioners Jason Mukapuli (66) and Martha Mukapuli (64) followed the wrong procedure when they tried to get a High Court judge to rescind a judgement which another judge had given against them in the same court, the Supreme Court ruled on Monday.
Noting the importance of the case for the Mukapulis – especially the fact that it concerned the roof over the heads of two retired people – the Supreme Court decided not to order the couple to carry the legal costs of their opponents in the appeal, Swabou Investments (Pty) Limited and First National Bank of Namibia.
Another Supreme Court ruling on an appeal by the couple against the initial High Court decision through which Swabou obtained a judgement against them is still being awaited at this stage.
The Mukapulis are resisting attempts by First National Bank to have them evicted from their house in Katutura, where they have been living since 1979.
FNB bought the house at an auction in May 2010, Acting Judge of Appeal Sandile Ngcobo recounted in the appeal judgement. The bank bought the house for N$262 000 after Swabou – which merged with FNB in 2003 – had obtained a judgement in an amount of N$177 743 against the couple in September 2009. Swabou also obtained a court order declaring the property executable.
Having bought the house, FNB went one step further in August 2010 by getting a court order for the couple’s eviction from their home. The Mukapulis managed to halt their eviction through an order given in their favour in the High Court after that.
The Mukapulis are claiming that they did not owe Swabou any money, and that they did not receive a fair trial in the initial proceedings in the High Court through which Swabou obtained the judgement against them. They were not represented by a lawyer at those proceedings.
They subsequently found assistance with the Directorate of Legal Aid, which instructed lawyer Nixon Marcus to represent them in their attempts to stop the bank from evicting them from the house and to get the initial High Court judgement against them set aside.
The couple bought the house in 1993.
In 1998, Swabou granted a loan of N$151 950 to the Mukapulis, who wanted to have renovations done to their house. At that stage, Mr Mukapuli was 52 years old, while Mrs Mukapuli was 50, and both of them were still employed with the City of Windhoek.
Despite the fact that the couple’s retirement lay only eight and ten years respectively in the future, the loan was repayable over a period of 30 years. The loan also came with a punishing annual interest rate of 22,75 per cent attached.
The Mukapulis are claiming that they have repaid a total of N$268 886 to Swabou, and that they have paid off the loan.
According to Swabou, though, the couple fell in arrears with the repayment of the loan, and that by the time it took legal action against them, they were owing the financial institution a total of N$177 743.
In the Supreme Court’s judgement, the court upheld a ruling in which Judge Johan Swanepoel concluded that the High Court was not a competent court to review the constitutionality of proceedings which had taken place in the same court.
The High Court “has no appellate jurisdiction in regard to appeals from itself, that is to say a judge of the High Court may not sit in judgement over a decision of another High Court judge on essentially the same facts and issues between the same litigants”, Judge Ngcobo said in the judgement.
It is the Supreme Court that has the legal authority to adjudicate the couple’s complaint that their fundamental rights had been violated with the hearing of the case against them in the High Court, Judge Ngcobo found.
On the question whether the couple should be ordered to carry the legal costs of Swabou and FNB in the appeal, Judge Ngcobo remarked: “The importance of the case to them cannot be gainsaid. It concerns their house, the property. They have lived in this house for more than 33 years. They say if the house is sold off, they may well be forced to live on the streets. And at this advanced age they will not be able to rebuild their lives. This explains why they have defended the action against them. They are adamant they do not owe the bank any money. Whether that is so is a question that is not before us. What is before us is their determination to resist being evicted from their home that they have occupied for more than 33 years.”
The issue which they have raised, concerning the right to legal representation in civil disputes, is of considerable importance to the public and the State, and in these circumstances it would be appropriate to depart from the general rule that a losing party in a case should carry the legal costs of his opponents, the judge concluded.
Judges of Appeal Gerhard Maritz and Sylvester Mainga agreed with the judgement.

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