CARMEL RICKARD: No home run for Namibian bank

Few judges in the region have the turn of phrase that I so enjoy from Thomas Masuku, and a new decision by him illustrates the point.

Previously a high court judge in Eswatini, Masuku was “removed” from office 12 years ago by that country’s now-disgraced chief justice, Michael Ramodibedi. This was after a secret hearing at which Ramodibedi acted as both complainant and judge. (Ramodibedi was himself subsequently thrown out in a spectacular showdown over his corrupt practices.)

Out of work, Masuku found a welcome in Namibia, where he’s sat on the high court ever since. 

Last year, the African Commission on Human & Peoples’ Rights found his removal from office had violated the African Charter and urged that Eswatini compensate Masuku for the infringement of his rights. No-one following trends in Eswatini will be surprised that there appears to have been no development on that score, however.

Earlier this month, Masuku had to consider a case brought by Nedbank Namibia against Cyril and Beulah van Rooi. The bank had loaned the couple funds to buy a house, but they were in arrears and Nedbank was claiming the equivalent of about R1.6m from them.

The bank wanted a summary judgment from the court. If granted, this would allow it to bypass a trial and, in terms of an amended order, if the money wasn’t forthcoming, sell the house to recoup the loan funds.

Masuku needed to decide whether this was a proper case to grant an application for a summary judgment.

The Van Roois’ legal team raised several grounds for rejecting the application. One of these was that the bank’s court paperwork was “defective”, and they urged Masuku not to grant the summary judgment requested.

The affidavit filed to support the application for summary judgment, the Van Roois’ lawyers said, didn’t comply with the regulations. What was wrong with it? The commissioner of oaths had failed to indicate the date on which the oath was administered.

In response, the bank urged the court to condone this noncompliance, arguing that the omission wasn’t particularly significant in the context.

Masuku quoted the regulation. “It appears to have two ‘shalls’,” he said. First, the commissioner “shall” certify that the person signing knows and understands the contents of the declaration. Second, there’s another peremptory “shall” for the commissioner to state the manner, place and date of taking the declaration. Now, should failure to observe the second “shall” be treated as innocuous, he asked.

No. In his view, the place and date are serious considerations and it matters whether a commissioner includes them.

One of his reasons was that application for summary judgment could result in the couple losing the roof over their heads. Because summary judgment was such a “stringent remedy”, the regulations had to be followed to the letter. The papers “must be in apple-pie order, so to speak”.

[The law requires] accuracy, precision and attention to minute details

—  Thomas Masuku

‘Small foxes spoil the vine’

Masuku said the law is a profession requiring “accuracy, precision and attention to minute details”. Commissioners of oath should do everything properly and not “rest on the forlorn hope” that the courts would be willing to apply lower standards in reviewing their work.

Masuku continued: “In the book of the Song of Solomon 2:15, it is stated that it is the small foxes that spoil the vine. Commissioners of oaths must be alive to the small foxes — the date, the place and manner of taking the oath, among other things.”

When appropriate, “inattention must be visited with a harsh penalty”. In this case, Nedbank had been alerted to the problem, but instead of withdrawing the application to fix it, the bank had forged ahead. That “obstinacy … must return to haunt [the bank]”.

Masuku concluded that as there was “no properly attested affidavit before court”, the application had to be refused, with costs, and a revised joint case plan had to be ready later this month.