Selling the Family Home

How Namibia Rewrote the Rules on Execution Against Immovable Property

Execution against a primary home was previously a relatively short, largely mechanical process: prove the debtor has insufficient movable property, apply to have the house declared executable, and auction it for at least 75% of its municipal value. Government Notice 208/2025 — refined by GN 114/2026 and giving effect to section 35A of the High Court Act — replaced that process with a structured inquiry.

Four figures summarise the change: the reserve price on a primary home has moved from 75% to 100% of market value; a creditor's window to apply once movables prove insufficient has grown from 30 to 90 days; independent valuations required before a primary home sale have gone from 0 to 2; and the alternative orders a court can make instead of a forced sale have expanded from 1 to 5.

1. The Primary-Home Carve-Out, Transformed

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Rule 108(1) still requires a nulla bona return plus a court order declaring the property executable — except where the creditor is the bondholder.

Nulla bona requirement, where the creditor holds a mortgage bond

OLD No exception. A nulla bona return was required in every case, regardless of the execution creditor's relationship to the property.

NEW Rule 108(2), giving effect to section 35A(2): the nulla bona return is not required if the property is bonded to the execution creditor and the debtor's default on that bond gave rise to the judgment debt.

Notice to the debtor

OLD Form 24 notifies the debtor that an application will be made for an order declaring the property executable and calls on the debtor to provide reasons why the order should not be granted.

NEW Form 24 must also draw out financial circumstances, alternative means of paying, how the debt arose and payment history.

Supporting papers

OLD None specified beyond the notice itself.

NEW Certified title deed required with the application; debtor gets 20 days to file an answering affidavit.

The court's task

OLD “Having considered all relevant circumstances” — discretion, on the papers.

NEW Must hold a formal inquiry into whether sale is the most appropriate order — procedure set out in new Rule 108A.

Alternatives to sale

OLD One example given: attaching alternative property

NEW Creditor must address five statutory alternatives; debtor must support any opposition with proof.

Evidence

OLD No mechanism for oral evidence.

NEW Rule 108A(8): court may allow oral evidence and cross-examination.

What used to be a single subrule of discretion is now a structured, adversarial inquiry with defined timelines and an evidentiary record.

Rule 108A's Procedure, in Order

Step 1 — Application

Creditor serves the application on the debtor, any occupier or interested party, at least 14 days before the hearing date.

Step 2 — Opposition

Within 5 days of service, the debtor, any occupier or interested party files a notice of opposition and affidavit proposing viable alternatives supported by evidence.

Step 3 — Reply

At least 3 days before the hearing, the creditor may file a replying affidavit.

Step 4 — Hearing

The parties may either be represented by a legal practitioner or appear in person; the court may permit oral evidence and cross-examination.

Step 5 — Outcome

The court declares the property executable or grants an alternative order under section 35A(4).

The Statutory Root: Section 35A of the High Court Act

Inserted by Act 2 of 2024, section 35A is what Rule 108A implements:

35A(1) — Basic gate: nulla bona return plus court declaration, before any sale.

35A(2) — Shortcut: skip the nulla bona return if the property is bonded to the creditor and default on that bond caused the debt.

35A(3) — For a primary home: no execution order unless an inquiry finds sale is the most appropriate order to satisfy the debt.

Section 35A(4) sets out some of the alternative orders a court can make if it finds sale isn't appropriate:

(a) Attach a different, alternative property the debtor owns.

(b) Vary the repayment period or instalments.

(c) Let a family member or other willing and able person take over the debt, while ownership stays with the debtor.

(d) Allow the debtor to voluntarily dispose of the property within a set period.

(e) Any other order the court considers proper and just.

2. A Rule-of-Thumb Valuation Becomes an Evidence-Based One

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Highest bid requirement

OLD Highest bid on a primary home ≥ 75% of municipal valuation (or 75% of a sworn valuation). One number, no process. (Old Rule 110(9))

NEW Highest bid must meet full market value, set through a two-valuer process the debtor can challenge. (New Rule 109(8)–(16))

That process runs on a clock, counted backwards from the sale date:

T-35 days

Deputy-sheriff obtains two independent valuations; their median is the preliminary market value.

T-30 days

Debtor served a preliminary market value certificate (Form 29) with both valuations.

T-25 days

Debtor may fund a rival valuation. If no response, the preliminary value simply becomes final.

Reconciliation

If the debtor's valuation is higher than the median, price = median + 10%. If lower, the median stands. The result is then checked against the municipal valuation — the higher of the two wins.

T-20 days

Deputy-sheriff issues the final market value certificate (Form 30) to the creditor.

Valuers' fees are for the creditor's account, recoverable as costs of execution (Rule 109(16)).

3. The Auction Floor Gets Policed Too

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The old rules said little beyond “sell by public auction.” The new rules regulate the room:

N$2,000 — maximum deposit the deputy-sheriff may require before allowing a bid on movable property (Rule 104(10)–(11)).

N$10,000 — maximum deposit the deputy-sheriff may require before allowing a bid on immovable property (Rule 104(10)–(11)).

Power of attorney required — no bidding on another's behalf without one (Rule 104(12)).

In person only — telephonic, video or other remote bidding is barred (Rule 104(13)).

10% + 30 days — the winning bidder pays a cash deposit on the day, then provides a bank guarantee for the balance (Rule 110(9A)–(9B)).

At a Glance

A side-by-side summary of every change covered above:

Feature	Old Rules	New Rules
Primary-home inquiry	Single subrule, court discretion on the papers	Full adversarial inquiry (Rule 108A): affidavits, disclosure duties, possible oral evidence and cross-examination
Nulla bona requirement for bondholders	Required in every case	Waived where the creditor holds the bond and the debtor's default on it caused the debt (Rule 108(2); section 35A(2))
Creditor's time to apply	30 days from the nulla bona return	90 days
Primary-home valuation	75% of municipal valuation (or 75% of a sworn valuation)	Full market value, via a two-valuer, debtor-testable process (Rule 109(8)–(16))
Reserve price on a primary home	75% floor	100% of determined market value
Bidding conduct	Not regulated	Deposits capped, powers of attorney required, remote bidding banned
Post-sale bidder obligations	Left to the conditions of sale	10% cash deposit on the day plus a bank guarantee for the balance within 30 days (Rule 110(9A)–(9B))

The Bigger Picture

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The 75%-of-municipal-value floor was simple to apply, but disconnected from a property's actual worth and did not require the court to consider whether sale was the most appropriate remedy. The new architecture requires two independent valuations, gives the debtor an opportunity to challenge the resulting figure, and permits a sale to proceed only after a court has considered whether an alternative order would satisfy the judgment debt.

A slower and more costly process for creditors, and a more rigorous, evidence-based one for affected debtors.

Robin Myburgh

Associate – Litigation Department

Engling, Stritter & Partners

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