- July 22, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PRACTICE – APPLICATION FOR CONTEMPT OF SUPREME COURT JUDGMENT; POINTS IN LIMINE; LEGAL REPRESENTATION AT TAXATION
The applicant approached the High Court seeking an order to hold the respondents in contempt of the Supreme Court judgment in Case No. 36/2016 delivered on 7 October 2019. The applicant further seeks an order to interdict the first and second respondents from allowing the second and third respondents to attend the taxation of costs awarded by the Supreme Court. The application was opposed by ENSAfrica and NAMFISA.
The background on which this present contempt of court application, instituted by the applicant, is premised, is based on the fact that the applicant, some years ago, instituted proceedings for damages against the third respondent (NAMFISA). NAMFISA filed a notice to defend the action but did not file a plea and the dies expired. The applicant, as a result, obtained default judgment. NAMFISA applied for rescission of the default judgment and the court rescinded the judgment. The applicant appealed the rescission judgment.
On 7 October 2019, the Supreme Court upheld the appeal and found that the deponent to the affidavit filed in support of the rescission application lacked the necessary authority to bring the rescission application on behalf of NAMFISA. The Supreme Court declared the rescission of judgment null and void and set it aside and also set aside the default judgment that was earlier granted in favor of the applicant. The Supreme Court then ordered NAMFISA to pay the applicant’s costs in the form of disbursements regarding the proceedings from the application for rescission until the appeal proceedings.
The applicant raised several points of law in limine, more particularly that because the Supreme Court found that the deponent to the affidavit filed in support of the rescission application lacked the necessary authority to bring the rescission application on behalf of NAMFISA, NAMFISA could therefore not appoint ENSAfrica as its representative in the related taxation.
Mr Christian inflexibly demanded that a ruling be delivered on the points of law in limine raised before the merits of the contempt application could be heard. SIBEYA J held that:
- A perusal of the entire judgment does not expressly bar or deprive NAMFISA of its constitutional right to legal representation of its own choice. The right to legal representation is an entrenched right that must be respected by all.
- The Supreme Court did not bar NAMFISA from engaging legal practitioners of its choice in proceedings subsequent to the appeal against the rescission judgment including taxation. The Supreme Court did not even attempt to interfere or limit NAMFISA’s entrenched right to legal representation and therefore NAMFISA is at liberty to engage legal practitioners of its own choice in future proceedings including proceedings at taxation.
As a result, the applicant’s points in limine were dismissed.
Hendrik Christian ta Hope Financial Services v The Registrar of the High Court and others NAHCMD 362 (22 July 2022)