Vexatious Proceedings Act, 1956

Act 3 of 1956

Vexatious Proceedings Act, 1956

Coat of Arms

Vexatious Proceedings Act, 1956

Act 3 of 1956

[APPLICABILITY TO SOUTH WEST AFRICA: Section 3 states “This Act shall apply also in the territory of South West Africa”, and section 1 defines “court” accordingly. The wording of section 3 did not make South African amendments automatically applicable to South West Africa. However, in any event, there were no amendments to the Act in South Africa prior to Namibian independence.][TRANSFER TO SOUTH WEST AFRICA: Although this Act makes no reference to any minister, by virtue of its subject matter it probably fell under the Executive Powers (Justice) Transfer Proclamation, AG 33 of 1979, dated 12 November 1979. Regardless of whether or not there was a transfer of administration, the wording of the Act did not make South African amendments automatically applicable to South West Africa – and, in any event, there were no amendments to the Act in South Africa prior to Namibian independence.]ACTTo provide for the imposition of restrictions on the institution of vexatious legal proceedings.(Afrikaans text signed by the Governor-General)BE IT ENACTED by the Queen’s Most Excellent Majesty, the Senate and the House of Assembly of the Union of South Africa, as follows:-

1. Definitions

In this Act, unless the context otherwise indicates -court” means any provincial or local division of the Supreme Court of South Africa and includes the High Court of South-West Africa;State Attorney” means the officer appointed under paragraph (a) of sub-section (2) of section two of the State Attorney Act, 1925 (Act No. 25 of 1925).[The State Attorney Act 25 of 1925 (SA) was replaced by the State Attorney Act 56 of 1957 (SA) (SA GG 5894), which was replaced in South West Africa by the RSA Government Attorney Proclamation, R.161 of 1982 (RSA GG 8367). This Proclamation converts the Windhoek branch of the Office of the State Attorney in Pretoria into the Government Attorney’s Office for the Territory of South West Africa. It was brought into force on 1 April 1984 by RSA Proc. 52 /1984 (RSA GG 9162).]

2. Powers of court to impose restrictions on the institution of vexatious legal proceedings

(1)
(a)If, on an application made by the State Attorney or any person acting under his written authority, the court is satisfied that any person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing the person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of that court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.
(b)If, on an application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that other person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of that court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.
(c)An order under paragraph (a) or (b) may be issued for an indefinite period or for such period as the court may determine, and the court may at any time, on good cause shown, rescind or vary any order so issued.
(2)Any proceedings under sub-section (1) shall be deemed to be civil proceedings within the meaning of paragraph (c) of section three of the Appellate Division Further Jurisdiction Act, 1911 (Act No. 1 of 1911).[The Appellate Division Further Jurisdiction Act 1 of 1911 is not in force in Namibia.]
(3)The registrar of the court in which an order under sub­section (1) is made, shall cause a copy thereof to be published as soon as possible in the Gazette and in the Official Gazette of the territory of South-West Africa.
(4)Any person against whom an order has been made under sub-section (1) who institutes any legal proceedings against any person in any court or any inferior court without the leave of that court or a judge thereof or that inferior court, shall be guilty of contempt of court and be liable upon conviction to a fine not exceeding one hundred pounds or to imprisonment for a period not exceeding six months.[A fine not exceeding one hundred pounds is equivalent to a fine not exceeding N$200.]

3. Application of Act to South-West Africa

This Act shall apply also in the territory of South-West Africa.

4. Short title

This Act shall be called the Vexatious Proceedings Act, 1956.
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History of this document

17 February 1956 this version
06 February 1956
Assented to

Cited documents 0

Documents citing this one 3

Judgment
3

This is an appeal from the court a quo wherein the appellants brought an application to declare rule 31(5)(a) of the repealed rules of the High Court unconstitutional and declare the default judgment granted by the registrar under rule 31(5)(a) invalid and null and void.

 

During or about 2001, Erf 4479, Khomasdal, Windhoek, was declared specially executable by the registrar of the High Court, who was empowered to do so by the now repealed rules of the High Court. Subsequently, the property was sold in execution on 24 March 2005 to Mr and Mrs Benade. During 2005 the first application was brought, seeking to set aside the sale in execution.

 

After that, the application by the appellants was dismissed in March 2006, the appellants appealed to the Supreme Court, but as a result of the non-compliance on the part of the appellants, the Supreme Court struck the application and the appeal was further not prosecuted.

 

During the year 2011, the appeal was declared to have lapsed. Successively, during or about 2013/2014 the appellants sought similar relief from the High Court, whereby, the Court dismissed the appellants’ application.

 

That is the background upon which this current appeal of the whole judgment of the Court a quo is premised.

 

Held that, the functus officio principle lends finality to the conduct of proceedings by marking a definitive endpoint to it.

 

Held that, the High Court does not have the authority to review or overturn its own decisions, nor does it have appellate jurisdiction over its own decisions.

 

Held that, the learned judge's finding that there was an unreasonable delay in launching the applications is sound.

 

Held that, the judge a quo correctly held that the High Court had fully and finally exercised its jurisdiction and could not alter or correct its order even with the benefit of hindsight.

 

Held that, one recognised exception to the functus principle is the rescission of a judgment, and the appellants did not apply for rescission of the judgment.

 

Held that, the High Court is functus officio in respect of the dispute between the appellants and the respondents.

 

Held further that, time is even more of the essence in a case where a constitutional challenge is launched concerning the constitutionality of a statute or rules of court.

 

Held that, if the appellants were aggrieved with the conduct of the respective legal practitioners, which they clearly are, they have recourse to the Body to which legal practitioners are accountable, ie the Law Society of Namibia.

 

Held further that, launching a personal attack on legal practitioners who are merely representing their clients and pursuing their mandate is unacceptable.

 

Held that, there is no reason to shield the appellants from a cost order in this appeal, and there is no basis for deviating from the normal rule that the costs should follow the result.

 

Held that, the appeal is accordingly dismissed with costs.