Fijjy Reye Construction CC and Another v Chirau and Another (SCR 1/2024) [2024] NASC 24 (12 August 2024)

REPORTABLE

CASE NO: SCR 1/2024

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

FIJJY REYE CONSTRUCTION CC	First Applicant
JASON PENDA	Second Applicant
and
EVANS CHIRAU	First Respondent
AILLY NGESHEYA	Second Respondent

Coram: SHIVUTE CJ, MAINGA JA and FRANK AJA

Heard: 16 July 2024

Delivered: 12 August 2024

Summary: This is a review application in which the applicants (the defendants in the High Court) sought an order setting aside the order of the court a quo due to an irregularity in the proceedings. The facts are briefly as follows: The then plaintiffs, now respondents, instituted an action against the defendants to declare an agreement between the parties null and void ab initio and for the return of the portion of the purchase price already paid. In the alternative, the plaintiffs alleged that the construction of the property was not done in a proper and workmanlike manner and as the defendants refused to remedy the defective work, they were entitled to cancel the agreement which they did.

The defendants filed a plea denying the allegations by the plaintiffs. They denied that they were in breach of the agreement and asserted that the plaintiffs still owed an outstanding amount on the purchase price. The defendants filed a counterclaim claiming the amount outstanding on the purchase price (ie N$490 000) and alleging damages to the tune of N$429 000 because the plaintiffs allegedly prevented them from converting and utilising the property for student accommodation.

When the matter was ripe for hearing the defendants did not appear at the trial and the court a quo granted the plaintiffs default judgment for their main relief. It is this order that the defendants seek to set aside in this review. This Court granted the defendants leave to launch a review pursuant to s 16 of the Supreme Court Act 15 of 1990.

The court limited the review grounds to the following facts and circumstances: ‘(i) Was an irregularity in the proceedings established by virtue of the fact that the counterclaim was not expressly dealt with in the pre-trial order; (ii) What is the effect of no order being made in respect of the counterclaim on such claims; (iii) Was it an irregularity in the proceedings to not make an order in respect of the counterclaim; (iv) Can the counterclaim still be pursued in view of the fact that no order was made in respect thereof; (v) Does the rescission application launched by applicants in July 2023 provide an adequate alternative remedy and (vi) What is the status of the mentioned rescission application’.

Held that, this Court will not exercise its review jurisdiction where it is not established that the alleged irregularity in the proceedings in the High Court ‘. . . resulted or is likely to result in an injustice or other form of prejudice being suffered’ which cannot be addressed by other available remedies.

Held that, the omission by the court a quo to deal with the counterclaim amounted to an irregularity in the proceedings. Unless the counterclaim was abandoned, it still has to be dealt with at trial.

Held that, the rescission application brought by the defendants is still pending in the High Court. The question that arises is whether the rescission application is an effective alternative remedy to the review being sought in this Court?

Held that, the rescission application provides an adequate remedy to prevent an injustice to the defendants. If the application succeeds, the order of 9 May 2023 will be set aside and the pre-trial formalities can be finalised so that the matter (both the claim-in-convention and the claim-in-reconvention) can be heard. The managing judge or the trial judge can then determine how the matter should proceed taking cognisance of rule 63(6) of the Rules of the High Court and determine whether this is a case where this rule should be utilised and if finding in favour of the plaintiffs in respect of the issue dealt with in terms of this rule further determine whether the judgment in respect of the claim-in-convention should be stayed pending the adjudication of the counterclaim.

Consequently, the review application stands to be dismissed with costs.

____________________________________________________________________

REVIEW JUDGMENT

____________________________________________________________________

FRANK AJA (SHIVUTE CJ and MAINGA JA concurring):

Introduction

1. Respondents (as plaintiffs a quo) instituted action against the applicants (as defendants a quo) to declare an agreement between the plaintiffs and Mr Penda on behalf of the property owner, Fijjy Reye Construction CC null and void ab initio and for the return of the portion of the purchase price already paid. In the alternative, the plaintiffs alleged that the construction of the subject-matter of the said agreement was not done in a proper and workmanlike manner and as the defendants refused to remedy the defective work, they were entitled to cancel the agreement which they did. They thus claimed the confirmation of the cancellation and the repayment of the portion of the purchase price already paid.

2. For convenience’s sake and to avoid confusion, I shall refer in this judgment to the respondents as the plaintiffs and the applicants as the defendants (as they were a quo). Where I refer to the second defendant (second applicant herein) only, I refer to him by reference to his surname ie Mr Penda.

3. Defendants in their plea denied the allegations by the plaintiffs and denied that they were in breach of the agreement asserting that the outstanding amount on the full purchase price was still outstanding and in a counterclaim pressed two claims, namely the amount outstanding on the purchase price (N$490 000) and alleged damages to the tune of N$429 000 because the plaintiffs allegedly prevented them from converting and utilising the property for student accommodation.

4. When the matter was ripe for hearing the defendants did not appear and the court a quo granted the plaintiffs main relief. It is this order that the defendants seek to set aside in this review. The defendants sought the consent of this Court to launch a review pursuant to s 16 of the Supreme Court Act 15 of 1990 which was granted as follows and which is the subject-matter of this review application:

‘The review grounds shall be limited to the following facts and circumstances:

1. Was an irregularity in the proceedings established by virtue of the fact that the counterclaim was not expressly dealt with in the pre-trial order?

2. What is the effect of no order being made in respect of the counterclaim on such claims?

3. Was it an irregularity in the proceedings to not make an order in respect of the counterclaim?

4. Can the counterclaim still be pursued in view of the fact that no order was made in respect thereof?

5. Does the rescission application launched by applicants in July 2023 provide an adequate alternative remedy?

6. What is the status of the mentioned rescission application?’

Brief summary of the facts and issues arising

5. The order that forms the subject-matter of this application and which is sought to be set aside was handed down by the court a quo on 9 May 2023 and reads as follows:

‘1. The contract of sale entered into between the plaintiffs (Evans Chirau and Ailly Ngesheya) and the defendants (Fijjy Reye Construction CC and Jason Penda) is hereby declared null and void ab initio.

2. The defendants must repay the plaintiffs the amount of N$710 000 (Seven Hundred and Ten Thousand Namibian dollars).

3. The defendants must pay interest on the aforesaid amount at the rate of 20% per annum from the date of judgment until date of full and final payment.

4. Costs of suit.

5. The matter is removed from the roll and regarded as finalised.’

6. From the particulars of claim, it is evident that a dispute arose between the parties in respect of a property the plaintiffs purchased from defendants at a total price of N$1 250 000 on 26 April 2016. This means the shortfall in respect of the purchase price is N$540 000 and not N$490 000 as per the counterclaim.

7. From the pleadings, it is clear that an amount of N$710 000 was paid in respect of the property and that the plaintiffs occupied the property.

8. During the course of such occupation, the plaintiffs noted cracks in the building which, over time, widened and new cracks also appeared. The defendants were put on terms to rectify the defects and on the pleadings there is some dispute as to whether the defendants tendered to remedy the defects complained of. Be that as it may, when the plaintiffs received a report from an expert indicating that the structure was unsafe and that they should move out of the premises, they sought the return of their money on the basis that the sale fell foul of the provisions of s 1 of the Formalities in respect of Contracts of Sale of Land Act 71 of 1969 and it was thus null and void.¹ In the alternative, they sought a cancellation of the sale agreement and the resultant restitution of the purchase price already paid, ie N$710 000.

9. Defendants denied that the defects were due to sloppy workmanship, averring that a bump or direct hit to the building by the plaintiffs caused the damage which plaintiffs label as defects. According to the defendants, they tendered to correct the defects, offered plaintiffs an alternative unit in the complex which offers were declined. These offers were made without admitting liability for the defects and in the hope that the plaintiffs would pay the outstanding purchase price. In addition, the defendants requested plaintiffs to vacate the premises so that the complex could be converted into student accommodation which was likewise declined and caused defendants to lose rental income and suffer damages in the amount of N$429 000. Thus, damages plus the outstanding amount of the purchase price (N$490 000) were claimed in the counterclaim.

10. The parties, through their lawyers, prepared a joint pre-trial report which the managing judge converted without changes into a pre-trial order as per rule 26(7) of the Rules of the High Court.

11. A trial date was set for 9 May 2023. The defendants’ legal practitioner made many attempts to contact the defendants (ie Mr Penda) without avail and he eventually withdrew as their lawyer. So when the matter was called for trial there was no appearance for the defendants resulting in the order quoted above being made.

12. Mr Penda averred that he was ill and concerned with his health and for this reason he was not aware of the trial date. He launched a rescission application in person so as to rescind the judgment given against the defendants a quo spelling out his health problems in this application. In his notice of motion for the rescission application, it is stated that if no notice of opposition is given that application would be moved on 21 July 2023. According to Mr Penda, when he went to the registrar’s office on that date, he was informed that because there was no notice of intention to oppose, the application would not be heard. It seems that the matter was in these circumstances moved to the residual roll where it is still languishing.²

13. As far as the resultant order is concerned, defendants’ stance is that because their lawyer did not see to it that all of the issues of law and facts appearing from the pleadings were contained in the joint pre-trial report, their counterclaim was not properly addressed in the report and hence also not raised in the pre-trial order. Probably realising that to solely blame their own lawyer would not amount to an irregularity in the proceedings, they also attacked the conduct of the managing judge. The issue in this regard is evident from the following two paragraphs in the founding affidavit to their request for review:

‘35. Further, and the above being said, the presiding judge did not take the legal practitioners to task as she should have done, if regard is had to the overriding objective of the judicial management process, as contemplated by, amongst others, Rule 26(8) read together with, amongst others, Rule 27(3)(c) of the Rules of the High Court.

36. In fact, if the Honourable Judge had exercised appropriate judicial oversight over the case, he would have noticed that the joint pre-trial report was in substance seriously flawed or defected (sic) insofar as it did not clearly and in unambiguous way deal with the factual and/or with the procedural aspects as specifically related to the adjudication of the counterclaim.’

14. It must be borne in mind that as this is a civil matter, the managing judge had little scope to intervene in the proceedings but simply had to ensure that the matter moved expeditiously to trial. The parties had to define the issues of fact and law that had to be resolved between them at the trial and not the judge.³ Furthermore, the parties were represented by lawyers. This meant that the lawyers were in charge in respect of the proceedings and if the lawyers did not do their work properly, the relief, generally, is to be directed by the party aggrieved against his lawyer as he is bound by the conduct of his lawyer.⁴

15. The managing judge has little say as to what the parties put in their proposed pre-trial order which must address their issues in the context of rule 26(6). The parties must report to the managing judge what issues raised in the pleadings are still alive and will be addressed at the trial. This is not the task of the managing judge. Whereas the managing judge must obviously read the proposed pre-trial order before adopting it as an order in terms of rule 26(7), he will be more concerned with the compliance with rule 26(6) by the parties than with the pleadings as the pre-trial order will define the issues that will go on trial as decided by the parties. The parties, especially where they are represented by lawyers, will know that ‘issues and disputes not set out in the pre-trial order’ will not be allowed to be traversed at the trial except with the leave of the court on good cause shown (rule 26(10)). In the normal course of events the managing judge would be entitled to assume that issues in the pleadings that do not appear in the proposed pre-trial order have been resolved between the parties. In short, as a general rule parties will be bound by a pre-trial order and this is even more so where they are fully represented.

16. In this matter, the complaint is that the lawyers did not ensure that the disputes relevant to the counterclaim were properly addressed in the pre-trial order and that the managing judge should have picked this up and ordered the parties to address it. According to the defendants, the managing judge did not exercise ‘appropriate judicial oversight’ and hence the pre-trial order is an irregular step in the proceedings. It goes without saying that if the managing judge was not in some way delinquent in his oversight the pre-trial order, which only repeated what the parties (through their lawyers) decided, would not be of any moment as the lawyers or lawyer would solely be to blame.

17. It does seem to me that in the present matter the managing judge was to some extent not careful enough when he issued the pre-trial order. The proposed pre-trial order does not mention the counterclaim at all and focuses solely on the claim-in-convention. The issues of fact and law also focus solely on the claim-in-convention even though some of the issues are also relevant to the counterclaim. The counterclaim was not abandoned and there was no costs order proposed in respect of the counterclaim. It seems that the counterclaim was forgotten by the lawyers and the managing judge. This is also further evident from the order of 9 May 2023 which does not deal with the counterclaim at all. It must be borne in mind that, unless the counterclaim was abandoned, which is not suggested anywhere on the papers, it would still have to be dealt with at the trial.

18. The pre-trial order was placed before the court on 9 May 2023 and in the absence of the defendants, the plaintiffs could seek an order in terms of the claim-in-convention and an order for absolution from the instance in respect of the counterclaim.⁵ The order given however deals solely with the claim-in-convention and simply ignores the counterclaim. This, likewise suggests that the counterclaim simply vanished in the proposed pre-trial order and the actual order.

19. It was not necessary to go through the pleadings with a fine tooth comb to realise this. This should have been evident from a simple reading of the pleadings and the managing judge should have picked this up. It was not likely that the parties would not have mentioned it if the counterclaim would not proceed and if abandoned that no costs order would have been sought with regard to it.

20. It must be emphasised that this order was granted in the absence of the defendants and their erstwhile lawyer. The latter withdrew after he could not make contact with the former, and the former, we know now, avers that this was because of Mr Penda’s ill health. The reason for the non-appearance by Mr Penda or someone on behalf of the defendants was not known to the judge a quo. This means that even if the proposed pre-trial order and the order itself were beyond reproach, the judge a quo would have been entitled to deal with the claim-in-convention and to grant absolution from the instance in respect of the counterclaim.

21. What is, at first blush incorrect is that part of the order suggesting that the matter was regarded as finalised and removed from the roll. The counterclaim was not finalised which, once again, is supportive of the inference that it was simply not dealt with on that day. There may be some argument that as there was no order in respect of the counterclaim that it amounted to an order for absolution from the instance without a cost implication, but I am not convinced the facts justify this position.⁶ It thus seems to me that the counterclaim was never adjudicated upon and can be set down again for this purpose.

22. There is one qualification relating to the hearing of the counterclaim and that is that the finding, in law, that the contract between the parties was null and void ab initio, destroys the claim in the counterclaim for the payment of the outstanding purchase price. It does not however destroy the damages claim (which in my view is very poorly articulated in the counterclaim).

23. What further complicates the matter is the rescission application which is in limbo and which the defendants have not pursued for nearly a year now. This application which Mr Penda personally filed deals mostly with his alleged illness and does not raise the alleged irregularities at all.

When will this Court exercise its review jurisdiction in respect of proceedings in the High Court?

24. What is clear is that this Court will not exercise its review jurisdiction where it is not established that the alleged irregularity in the proceedings in the High Court ‘. . . resulted or is likely to result in an injustice or other form of prejudice being suffered’.⁷ Put differently, this Court will not interfere where an applicant has not suffered prejudice as a result of the alleged irregularity.⁸

25. Where a matter is still pending in the High Court, I am of the view that the approach accepted by the High Court in respect of reviews from Magistrates’ Courts to them should also be applied by this Court in respect of reviews from the High Court to it. This approach is to the effect that the superior court would only ‘. . . do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained . . .’.⁹

26. It is not necessary for an applicant seeking to review an irregularity in the proceedings to establish a gross irregularity but it must be established that the irregularity ‘. . . causes serious prejudice resulting in a miscarriage of justice’.¹⁰

27. It is with the abovementioned principles in mind that I now turn to deal with the facts and circumstances of this case to determine whether this Court should review the order complained of.

Irregularities in the proceedings

28. Counsel for plaintiffs submitted that as the pre-trial order was a result of a proposed pre-trial order drafted and presented by the legal representatives of the parties to the court for adoption, it meant that the counterclaim was implicitly abandoned and hence the defendants cannot complain of an irregularity in the proceedings. The premise of this approach is that it was for the mentioned lawyers to stipulate what was still in dispute and not for the managing judge and hence the managing judge could accept that the counterclaim was no longer being pursued as it was not dealt with in the pre-trial proposal which was made an order of court.

29. For the reasons set out in the brief summary of facts and issues arising above, I do not agree with the submission made on behalf of the plaintiffs. Whereas it is no doubt correct that the parties (through their lawyers) bear the primary responsibility for what remains in dispute (both factually and legally), the managing judge is not a mere rubber stamp in this regard, but has a supervisory role and in this capacity, the judge should have raised queries where a lacuna in the proposed pre-trial order was obvious as happened in this matter.

30. Rule 48 of the Rules of the High Court requires a counterclaim to be filed together with the plea to the claim-in-convention. This reflects the practice which has developed to deal with claims and counterclaims together. This is so because, as a general rule, it is desirable that all claims between parties to the litigation should be dealt with together and quantified so that if competing claims succeed, set-off can occur between them. It follows that when a party institutes a counterclaim, such party can expect that it will be heard pari passu with the claim-in-convention.

31. The facts that claims and counterclaims are normally heard together is not an invariable rule. The court retains the discretion it has in common law to deviate from the rule and to deal with the claim and counterclaim separately.¹¹ The courts have thus deviated from this general rule where a claim was conceded and a stay of judgment was sought pending the adjudication of the counterclaim where the court was sceptical as to the prospects of the counterclaim or where a party was dilatory in pursuing the counterclaim.¹² In such cases, judgment will be given with immediate effect in respect of the claim and the remaining counterclaim will only thereafter be adjudicated upon.

32. From the summary of facts and issues set out above, one can infer that the judge a quo (who was not the managing judge who granted the pre-trial order) was misled by the order and the actions of the legal representative of the plaintiffs when he granted the default judgment. This order was clearly what the plaintiffs’ legal representative sought and in the absence of a prayer seeking absolution from the instance in respect of the counterclaim, his attention was also not drawn to the counterclaim that was not mentioned in the pre-trial order.

33. In the circumstances, the omission to deal with the counterclaim in my view amounted to an irregularity in the proceedings. The matter could not be dealt with (never mind finalised) in the absence of a reference to the counterclaim. It is clear that the counterclaim was not postponed on the basis that this was a matter where the court decided not to deal with the claim and counterclaim pari passu. This latter avenue (which the court a quo did not consider) would have been the only way in which the court a quo would have been able to deal with the claim and counterclaim separately.

34. The plaintiffs initially opposed this application in person and only engaged the services of a legal representative shortly prior to the hearing of this matter. In their answering affidavit, plaintiffs’ main concern is the delay of the matter in the court a quo, particularly of their attempts to execute the default judgment in their favour. They attribute the delay to the defendants. I must say that the delay in finalising this matter is a cause for concern and this is an aspect, as pointed out above, that the court a quo can consider going forward to determine whether the claim and counterclaim should indeed have to be determined pari passu. This should be considered in conjunction with rule 63(3) of the Rules of the High Court.

35. Rule 63(6) reads as follows:

‘(6) Where it appears to the court mero motu or on the application of a party that there is in any pending action a question of law or fact which may conveniently be decided either before any evidence is led or separately from any other question, the court may make an order directing the trial of that question in such manner as it considers appropriate and may order that all further proceedings be stayed until the question has been disposed of.’

36. Prima facie, the issue of the validity of the agreement between the parties is an issue which fits in with the provisions of rule 63(6). It is an issue distinct from the other issues arising between the parties and is essentially a legal one that will require very little evidence, if any. If determined in favour of the plaintiffs, restitution follows as a matter of law and the counterclaim for the full purchase price falls by the wayside and the court a quo can then determine whether this case is an appropriate one to stay the judgment pending the counterclaim or not.

37. If the validity of the agreement issue is determined against the plaintiffs then the issue in the matter would have been finalised and will not be raised again at the trial which would then go ahead on the alternative claim and the counterclaim. As the validity of the agreement issue must be addressed in any case, to separate it from the other issues cannot unduly prolong the trial whereas to not separate it may unduly prolong the trial to the prejudice of the plaintiffs.

38. Despite the fact that there was an irregularity in the proceedings, it is difficult to see how this prejudiced the defendants as they were at risk, had the counterclaim been considered, of an order of absolution from the instance being granted in respect thereof in default of their appearance at the hearing on the date the trial was set to commence. The fact that the counterclaim was not dealt with was to their advantage in that they can still pursue it. They could have approached the managing judge or the court to arrange for the hearing of the counterclaim and at the same time exercise their rights in respect of the granting of the default judgment in respect of the claim-in-convention and even have moved for that judgment to be stayed pending the adjudication of the counterclaim.

39. In respect of the judgment by default, the defendants had two options. They could pursue a rescission application or they could waive their right to bring a rescission application and sought leave to appeal the default judgment.¹³ It is evident that the defendants decided to bring a rescission application which is still pending in the High Court. The question that arises is whether the rescission application is an effective alternative remedy to the review being sought. This is so because even if it is an effective remedy then prejudice flowing from the irregularity can be avoided and as pointed out above this Court will only interfere ‘where justice might not by other means be attained’.

40. Counsel for the plaintiffs submitted that the rescission application if persisted with and if successful would lead to the setting aside of the order of 9 May 2023 by the court a quo and that this review application should be dismissed as defendants have an adequate alternative remedy. Counsel for the defendants submitted that the rescission application cannot assist the plaintiffs as it would lead to the setting aside of the default judgment but it would not lead to the reinstating of the counterclaim as it was in terms of the order ‘removed from the roll and regarded as finalised’.

41. Paragraph 5 of the order of 9 May 2023 reads as follows:

‘The matter is removed from the roll and regarded as finalised.’

This is indeed part of the order but it follows after the orders affecting the parties directly and which relate to the merits of the action. In context it is clear from paras 1-4 of the order that only the claim-in-convention was addressed and that para 5 only relates to the claim-in-convention which was removed from the roll and regarded as finalised. Furthermore, para 5 is in the nature of a directive to the registrar of the High Court so that she can take the necessary administrative steps to remove it from the court roll and the pending matters before that court. It is thus more in the nature of a ruling than an order definitive of the rights of the parties. If such directive is erroneous, a party must be able to, in my view, approach the managing judge or court, to correct such order. In this case, the managing judge or the court should have been approached to be reminded that the counterclaim was not finalised and had not yet been adjudicated on and that steps had to be taken to finalise the adjudication of the counterclaim. I in any event do not agree that the rescission application would prevent the reinstatement of the counterclaim if the order of 9 May 2023 is rescinded. Paragraph 5 of that order will also be rescinded.

42. I agree with the submission that the rescission application that is still pending in the High Court provides an adequate remedy to prevent an injustice to the defendants. If the application succeeds, the order of 9 May 2023 will be set aside and the pre-trial formalities can be finalised so that the matters (both the claim-in-convention and the claim-in-reconvention) can be heard. The managing judge or the trial judge can then determine how the matter should proceed taking cognisance of rule 63(6) and determine whether this is a case where this rule should be utilised and if finding in favour of the plaintiffs in respect of the issue dealt with in terms of this rule further determine whether the judgment in respect of the claim-in-convention should be stayed pending the adjudication of the counterclaim.

43. Should the rescission application be dismissed, the defendants would be entitled to appeal such dismissal as of right or ask the court a quo to stay the judgment pending the determination of the counterclaim. This latter course can also be followed by the defendants if the appeal is finalised against them prior to the finalisation of the trial in respect of the counterclaim.

44. It follows from the foregoing that this application to rescind the order of 9 May 2023 stands to be dismissed as the potential prejudice that arose from the irregularity in the proceedings can be addressed through the rescission application currently pending in the High Court.

45. As the rescission application was drafted by Mr Penda in person on behalf of the defendants it may not address all issues that the law requires. Plaintiffs however did not oppose it or file an answering affidavit thereto. In these circumstances, it would be fair to allow the defendants (who have now engaged a lawyer) to amplify it, if so advised, and to allow the plaintiffs, if so advised, to oppose it and file answering affidavits, should they so desire after having been served with such amplified application. I point out that as there was no opposition to the rescission application initially filed and it has been on the residual roll for nearly a year by now, a notice of set down of this application must in any event be served on the plaintiffs.¹⁴ In my order I shall provide for this.

Conclusion

46. For completeness sake, I now deal with the review grounds on which leave was granted to bring the application as set out in para [4] above.

1. Was an irregularity in the proceedings established by virtue of the fact that the counterclaim was not expressly dealt with in the pre-trial order?

Yes.

2. What is the effect of no order being made in respect of the counterclaim on such claims?

The effect was that the counterclaim is still alive and could no longer be dealt with pari passu with the claim-in-convention which constituted an irregularity as the deviation from the general rule that claims-in-convention and claims-in-reconvention are dealt with pari passu was not sanctioned by the trial court.

3. Was it an irregularity in the proceedings to not make an order in respect of the counterclaim?

No.

4. Can the counterclaim still be pursued in view of the fact that no order was made in respect thereof?

Yes.

5. Does the rescission application launched by applicants in July 2023 provide an adequate alternative remedy?

Yes.

6. What is the status of the mentioned rescission application?

At the hearing of the matter, the rescission application was still pending and on the residual roll. Unless withdrawn it needs to be finalised.

47. The parties were ad idem that the cost order should follow the normal rule that the successful party should be entitled to the costs. I cannot fault this approach and I shall make a cost order accordingly.

48. In the result, I make the following order:

1. The application to review and set aside the order of the court a quo of 9 May 2023 is dismissed.

2. Defendants a quo (the applicants herein) must within 20 days of this order set down the rescission application in respect of the order a quo of 9 May 2023, or serve the said application duly amplified on the plaintiffs a quo (the respondents herein). Failure to do so shall be deemed to amount to a withdrawal of the rescission application. Plaintiffs shall be entitled to, within seven days of service upon them of either a notice of set down or an amplified application, file a notice of opposition and within 14 days of filing the said notice of opposition file their answering affidavits or a notice in terms of rule 66(1)(c) of the High Court thereto. Thereafter the provisions of rule 66 of the Rules of the High Court relating to the hearing of applications shall apply.

3. The matter is referred back to the managing judge to complete the pre-trial process envisaged in rule 26 of the Rules of the High Court so as to enable him or her to produce a pre-trial order in respect of the counterclaim whereafter, taking cognisance of the pending rescission application, the matter is to proceed to trial on the issue of the counterclaim as directed by the managing judge.

4. Applicants (defendants a quo) are to pay the costs of this application.

__________________

FRANK AJA

__________________

SHIVUTE CJ

__________________

MAINGA JA

APPEARANCES

FIRST TO SECOND APPLICANTS:	I Tomas
	Of Du Pisani Legal Practitioners
FIRST TO SECOND RESPONDENTS:	N Tjombe
	Of Tjombe-Elago Incorporated