Angolan citizen wins Windhoek-West property dispute

Hertta-Maria Amutenja

An Angolan citizen, Samuel Dias, has successfully defended his ownership of a Windhoek-West property after the Supreme Court struck with costs an appeal by Windhoek resident Edward Nghitumbwa. 

Nghitumbwa had challenged a High Court order that nullified the transfer of the house into his name.

The property in dispute is Erf No. 3733, at 4 Pavlov Street, which Dias bought in 2002.

In a judgement delivered on Monday, the Supreme Court found that Nghitumbwa used the wrong legal procedure to challenge the High Court’s March 2023 ruling. 

The court held that he should have filed a rescission application instead of an appeal.

Justice David Smuts, with Judges Sylvester Mainga Angula and Elton Hoff concurring, explained that default judgements are provisional and not appealable as of right. 

“For a judgement to be appealable, it must be final in effect, grant conclusive relief, and not be susceptible to alteration or rescission by the lower court,” the judgement read.

The judges noted that Nghitumbwa’s lawyer had already told the High Court he did not oppose the relief sought by Dias, provided no costs were ordered against him. 

The Supreme Court ruled that the High Court’s orders were rescindable, making the appeal inappropriate. The appeal was struck from the roll with costs.

The dispute dates back to 2017, when Dias leased the property to tenant August Maletzky for N$10 000 a month. 

In February 2018, while Dias and his wife, Mawete, were in Angola, they learnt that Maletzky had allegedly sold the house to Nghitumbwa for N$2.5 million. Nghitumbwa took possession and began renovations.

Dias denied ever selling the property and said the documents authorising Maletzky to act as his agent were forged. 

He also stated that he had not received any money from the supposed sale.

In 2018, the Dias couple turned to the High Court, citing Maletzky, Nghitumbwa, legal practitioner Titus Mbaeva, conveyancer Daniel Kock, and the Registrar of Deeds. They asked the court to declare the transfer invalid.

In March 2023, Judge Boas Usiku ruled in their favour. He declared the special power of attorney, the sale agreement, and the deed of transfer invalid. He ordered the registrar of deeds to reregister the property in Dias’ name and directed Maletzky to pay the Dias family’s legal costs.

Although a no cost order was made against Nghitumbwa, he appealed in April 2023. He argued that the High Court erred by granting final orders without hearing oral evidence, especially on fraud allegations. He also claimed the court failed to address the money he paid as a purchase price and his lien for improvements made to the house.

The Supreme Court noted that the High Court had made no finding of fraud against Nghitumbwa. 

The fraud claims were aimed at Maletzky, who initially filed a notice to defend but failed to submit a plea. 

The court also pointed out that Nghitumbwa had, through his lawyer, abandoned his demand for proof of the allegations and agreed to the relief sought by the Dias family.

The Supreme Court said the appropriate remedy for Nghitumbwa would have been a rescission application in the High Court, not an appeal.

Maletzky is facing criminal charges of fraud and other counts in the High Court. Together with his close corporation, the African Labour and Human Rights Centre, and former employee, Simon Afrikaner, he pleaded not guilty when their trial began in February 2022 before Judge Herman January. The trial is still ongoing.

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