Home » News » Comments » IN THE MATTER BETWEEN : An Open Letter to President Mokgweetsi Masisi

IN THE MATTER BETWEEN : An Open Letter to President Mokgweetsi Masisi

Publishing Date : 26 June, 2018

Author :

Boitshepo Bolele

Sir, as busy as you are, could you take this opportunity go lemoga segajaja se se re thasetseng. We tried our hand at investment, in the process growing the economy through investment in property, but some deals went wrong and we find ourselves at the hand of the auctioneers.

Your Excellency, it’s tough for those who find themselves retrenched and unemployed but with fixed monthly mortgage instalments demanding payment. It’s even tougher in the trenches of entrepreneurship. With the economy in its state, more and more people are ending up with a foreclosures, especially when rentals for medium to high end properties are hard to secure.

Just look at tomorrow’s paper, you will capture the cloud of shame that visits your people every week – where multitudes of people’s properties are up for sale; whilst it is in the contract terms for assets to be sold in execution of the, it doesn’t have to be as humiliating as has been the case, with a NAME & SHAME through the infamous In The Matter- Between advert. I took time to interrogate this matter and was positively surprised to read in the latest High Court Rules of 2011, Section 52 item 8 and 9, which reads as:

(8) “The Execution Creditor shall, after consultation with the Deputy Sherriff, prepare a notice of sale (advert), containing a short description of the property and improvements thereon, its situation and plot no/ street no (if any), the time and the place of holding the sale and the fact that the conditions may be inspected at the office of the Deputy Sherriff with as many copies of the notice as the latter may require..

(9)The Deputy Sheriff shall indicate two suitable newspapers circulating in the district, in which the property is situated and require the execution creditor to publish the said notice once in each of the said newspapers and in the Government Gazette not later than 14 court days, before the date appointed for the sale…..”

The High Court Rules have not prescribed that the Defendant’s identity should be published. I believed the High Court Rules Committee, in omitting the publishing of the identity of the Defendant/ debtor was alive to the Rights of Privacy and was not in any way intentional on humiliating. Furthermore, it’s not clear why the identity of the defendant’s name helps the sale. What obtains in the process is the massive loss of personal goodwill of the defendant, the loss of esteem and resultant loss of business/ job opportunities.

Most importantly this borders on trampling on the right to privacy of the defendant. A default does not strip one of their rights or to sentence them off to poverty. There is no reason why the borrower should be written off both financially to the extent that they lose both in the now and in terms of ability to transact in the future. Banks are regulated entities and are required to respect the borrower’s privacy even in their fallen state.

Your Excellency, I don’t think it was ever the intention of the court to humiliate/ embarrass and rob one of their dignity. The property available for sale is sufficient to liquidate the debt, and doesn’t have to be coupled with the hemorrhaging of the Defendant’s future earnings and further crumbling their livelihood completely through the loss of dignity and the goodwill required by employers and investors.

On a very positive note, Bank Gaborone and some Government entities such as BURS execute the sale through court order with outmost respect for the privacy of the borrower, with no reference to their identities. They simply publish an advert with picture of property, Name of Deputy Sherriff and their Contact No, Date of Sale, Plot#, Location, Plot Size, and Description. This is as per the item 8 and 9 referenced above and these are sufficient to attract a buyer;

Our Courts As Procuring & Disposing Entities

This is worth interrogating – for the simple reason that the Deputy Sherrifs are acting on behalf of the Courts, by extention positions the Courts as Asset Disposing Entities. The PPADB Act and the PADB Regulations 100 and 103 are key in making the parallel argument on disposal of public assets. The Focus is in generating more value from the sale which aligns with the Act. Secondly it advocates that appropriate authority should be used. Appropriate authority is also a function of skill.

For one to be a Deputy Sherriff, they should have experience in a law Enforcement Agency and a Certificate in Law. Whereas the Real Estate Professionals Act (2003), prescribes that for one to practice as a Property Auctioneer, they should possess a degree in Estate Management or related Fields, and should be a valuer. They are regulated by the Real estate Regulations of 2009, and these form the basis for skills requirements for Government Asset Disposal Professionals.

If we accept that the Court,  is performing the functions of a Disposing Entity, it should therefore commit itself to the standards set by both the Real Estate Professionals Act, which are enforced by the PPADB Act, including in its role of disposing assets of  your citizenry, meaning the right authority and auctioneering standards should be upheld.

BURS has taken the lead in terms of their standards for goods they confiscate.

We cannot help but appreciate the high level standards that government uphold in disposal of its assets, the technical expertise it employs and by virtue of the fact that the Master of the High Court is driving the process, the same standards should be upheld even in the case of the Court as a Disposing Entity, which it is.

As is at the moment, the current system of disposal, has high possibility of impoverishing the borrowers. It sends a clear message that the message that their rights of the disgraced borrower don’t matter, and by extension communicates that the assets have no value. The way the sale is done is punitive and totally and totally disregards the investment of so many of Batswana, including investment in their own goodwill at a personal level and erodes their future earnings completely.

Your Excellency, could you reconcile us with Financial Institutions, so that in their execution of the court orders – to sell properties through public auction, they don’t put up our dignity for sale as well. Rraetsho re sietse mo go wena Rraetsho.

Boitshepo Bolele, 3132255 / 72537788 / email  HYPERLINK "mailto:boi.bolele@gmail.com" boi.bolele@gmail.com



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