9
REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA
Practice Direction 61
Case Title: HOCHLAND PARK PHARMACY CLOSE CORPORATION CC/2005/0079 1st APPLICANT GRAHAM TOWN FOURTEEN CLOSE CORPORATION CC/2013/11743 2nd APPLICANT LIPOLELA BENEDICTA QHOLA ID.NO PASSPORT NO. RC 008100 3rd APPLICANT TOITOI WILLIAM KAGISO MOLOI ID NO. 71040110247 4th APPLICANT WINNIFRIDA BAWINILE MOLOI 5th APPLICANT
and
SME AND MEDIUM ENTERPRISES LIMITED NO. 2011/0174 RESPONDENT | Case No: HC-MD-CIV-MOT-REV-2021/00214 |
Division of Court: High Court, Main Division | |
Case Title: MOLOI TRADING ENTERPRISES REG: CC/2014/1109 1st APPLICANT TOITOI WILLIAM KAGISO MOLOI ID NO. 71040110247 2nd APPLICANT WINNIFRIDA BAWINILE MOLOI ID NO. 7009061307 3rd APPLICANT and
SME AND MEDIUM ENTERPRISES LIMITED NO. 2011/0174 RESPONDENT | Case No: HC-MD-CIV-MOT-REV-2021/00241 |
Division of Court: High Court, Main Division | |
Heard before: Honourable Mr Justice Oosthuizen | Date of hearing: 14 April 2022 |
Delivered on: 13 May 2022 | |
Neutral citation: SME and Medium Enterprises Limited NO. 2011/0174 v Hochland Park Pharmacy Close Corporation CC/2005/0079 and Moloi Trading Enterprises Reg: CC/2014/1109 (HC-MD-CIV-MOT-REV-2021/00214) and (HC-MD-CIV-MOT-REV-2021/00241) [2022] NAHCMD 240 (13 May 2022) | |
Result on merits: Rule 61 application is successful. | |
COURT ORDER | |
IT IS ORDERED THAT:
| |
REASONS FOR ORDERS: | |
Introduction
Parties Applicants in case no: HC-MD –CIV-ACT-MOT-REV-2021/00214
Applicants in case no: HC-MD –CIV-ACT-MOT-REV-2021/00241
Respondent
Parties in current matter
Rule 61 Requirements
‘(1) A party to a cause or matter in which an irregular step or proceeding has been taken by any other party may, within 10 days after becoming aware of the irregularity, apply to the managing judge to set aside the step or proceeding, but a party that has taken any further step in the cause or matter with knowledge of the irregularity is not entitled to make such application. (2) An application under subrule (1) is an interlocutory application and must be on notice to all parties and must specify in the notice the particulars of the irregularity alleged as well as the prejudice claimed to be suffered as a result of the alleged irregular step.’
‘As pointed out above, the court has discretion whether or not to set aside the irregular step. This is implicit, if not explicit from Rule30 (3). I endorse the statement in China State Construction Engineering Corporation (Southern Africa) (Pty) Ltd v Pro Joinery CC that the court has discretion whether or not to grant the application to set aside the irregular step even if the irregularity has been established. The court may, in the exercise of its discretion, overlook the irregularity. A relevant consideration is prejudice. Prejudice that is required relates to the exercise of a party’s procedural right or duty to respond to a communication received or to the taking of a next step in the sequence of permissible procedure to ripen the matter for proper orderly hearing.’
‘It will be put to the expense of investigating, researching, consulting and drafting affidavits to deal with the numerous and wide-ranging issues, including those belatedly and improperly introduced by the applicants, in circumstances where all such effort and costs would be unnecessary and wasted, bearing in mind that the applicants have failed (on their own facts) to establish any basis or cause of action in terms of the Rules and in particular, in view of the fact that the process adopted by the applicants are not countenanced by rule 16, 65, 76,103 or the law.’
Jurisdiction
‘All proceedings to bring under review the decision or proceedings of an inferior court, a tribunal, an administrative body or administrative official are, unless a law otherwise provides, by way of an application directed and delivered by the party seeking to review such decision or proceedings to the magistrate or presiding officer of the court, the chairperson of the tribunal, the chairperson of the administrative body or the administrative official and to all other parties affected.’
‘The High Court shall have jurisdiction over all persons residing or being in and in relation to all causes and all offences triable within Namibia and all other matters of which it may according to law take cognisance, and shall in addition to any powers of jurisdiction which may be vested in it by law, have power- (a) to hear and determine appeals from all lower courts in Namibia; (b) to review the proceedings of all such courts…’
‘I am of the considered opinion that the only conclusion that can be reached in the circumstances, is that this court, whereas it has power to review decisions of inferior courts and tribunals, does not have the jurisdiction to review its own decisions and proceedings. That power lies only with the Supreme Court.’
Rescission
‘(1) A defendant may, within 20 days after he or she has knowledge of the judgment referred to in rule 15(3) and on notice to the plaintiff, apply to the court to set aside that judgment. (2) The court may, on good cause shown and on the defendant furnishing to the plaintiff security for the payment of the costs of the default judgment and of the application in the amount of N$5000 set aside the default judgment on such terms as to it seems reasonable and fair…’
‘In addition to the powers it may have, the court may of its own initiative or on the application of any party affected brought within a reasonable time, rescind or vary any order or judgment -
Conclusion
Order
[28.1] The review applications of the applicants are set aside and struck as being irregular proceedings as contemplated in Rule 61 of the Rules of the High Court. [28.2] The applicants in the review proceedings shall pay the costs of the respondent which shall not be capped in terms of Rule 32(11) and shall include the costs of one instructing and one instructed legal practitioner. [28.3] The matters are removed from the roll and are regarded as finalised. | |
Judge’s signature: | Note to the parties: |
Counsel: | |
Applicants | Respondent |
L.B Qhola Third Applicant acting in person for HC-MD-CIV-MOT-REV-2021/00214 Windhoek, Namibia and; T.W.K Moloi Second Applicant acting in for HC-MD-CIV-MOT-REV-2021/00241 person Windhoek, Namibia | Y. Campbell Instructed by Fisher, Quarmby & Pfeifer Windhoek, Namibia |
1 Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd 2012 (2) NR 671 (SC).
2 Schameera Seven (7) Reg: CC 2002/2211 v Standard Bank of Namibia Limited (HC_MD_CIV_MOT_REV_2020/00355) [2021] NAHCMD 449 (30 September 2021).