By Megameno Shikwambi
The acting chief executive officer for the village of council of Gibeon filed an urgent court application at the SADC court this week in a race against time to save the auctioning of its property.
The council’s acting CEO, Monica Silas has told court that the properties have been placed under judicial attachment and are to be sold at a judicial auction to be held today, 30 August 2019.
The auction comes after the Development Bank of Namibia won a court-case against the Village council on the 26th of April 2019 where a judgment and order in favour of the bank was made by High Court Judge Harold Geier.
The village council is now claiming that DBN was granted an erroneous default judgment not in open court, but in chambers.
The effect of the judgement was that the village council was to pay the bank monies to the tune of N$2.5 million.
What is apparent is that the village council issued a tender to a construction company, named in the court documents as AB Construction, owned by Aldrin Brinkmann and his wife.
The couple secured funding from the bank via written agreements whereupon their company was given a loan to the tune of N$3.7 million.
On 29 March 2018, the village council claims that a further written agreement was entered into between DBN and the Brinkmanns for the restructuring of the first agreement in respect of the total amount outstanding to DBN to the amount of N$2.3 million.
Compound interest on the said amount was put at the rate of 12.50% per annum calculated on a daily basis and compounded monthly as from the 31st of October 2018.
Penalty interest was also put at a rate of 2% per annum compounded monthly from the due date of payment to the plaintiff. The village council has so far told the court that it was not party to these agreements.
The company owner authorised the village council to pay 100% amounts owed for the work done but such payments were to be made directly to DBN.
According to the village council, “The court could only grant a judgement in respect to the first alternative claim if allegations are made that there were payments due and payable for the construction company.”
In absence of such an allegation, the village council has argued, an order could not be sought and granted.
Argument for urgency
The Gibeon village council acting CEO pleaded with the court to grant an order to stop the auctioning of its properties by DBN arguing that it was one of the smallest village councils in Namibia relying heavily on government subsidies.
She has also pleaded that the properties that have been lined up for auctioning were bought using public funds and that it was only in the public interest that the court should nullify the judgement that gave effect to the auction.
She also argued that if the village council’s case was not heard by the court on an urgent basis, it would suffer irreparable harm.
The properties due to auctioning are to the value of N$700 000 and include two Toyota Corolla, One Nissan NP 300, One Hyundai Accent, One Toyota Tankwa, One Tata Tipper Truck, One Toyota Hilux, One Mazda Sedan, and another Tata Tipper Truck.
If these properties are to be sold out via auction, the village council has pleaded that its operations would come to a standstill, as the trucks are used to provide municipal services to residents.
The council has also explained that it experienced delay in bringing the application before court because they did not have sufficient funds to afford a legal representative.
As such they wrote to the Ministry of urban and rural development asking for assistance in this matter, so they claimed.
The ministry is said to have forwarded this request to the government attorney who sought legal opinion on whether the village council had a chance to win the case in the court against DBN.
The opinion that came was that there was no chance for success and as such, the council said no notice of intention to defend was filed. According to the village council’s papers, a last minute decision from Sisa Namandje was sought at a time when execution steps were taken.
Namandje’s opinion was that the judgement made in favour of DBN was erroneous and it was only then that the village council filed an urgent application to rescind the judgement and stop the auction.
The council thus sought condonation for late filing of the application.
“It is very clear that in the event of the applicant’s fleet of vehicles being sold, the applicant would not obtain substantial redress in due course because in the meantime it will suffer further damages in hiring alternative vehicles. But and yet significantly, there is no money to hire alternative vehicles,” the village council remarked.