CIVIL PRACTICE – RESCISSION OF ORDERS GRANTED WHERE THERE HAS BEEN A HISTORY OF NON-COMPLIANCE WITH COURT ORDERS

CIVIL PRACTICE – RESCISSION OF ORDERS GRANTED WHERE THERE HAS BEEN A HISTORY OF NON-COMPLIANCE WITH COURT ORDERS

In this action lodged back in 2015, there was a history of non-compliance with previous court orders. Thus on 17 November 2021, the court made an order in terms of which the first and second defendant’s defence were struck and postponed the matter to 1 December 2021 for consideration of the plaintiff’s application for default judgment. In a court order dated 3 December 2021, the court granted default judgment in favour of the plaintiff. The defendants brought an application for the rescission of these court orders contending that on 17 November 2021 their defence was struck without a) notice; b) being given an opportunity to explain the reasons for their default, and c) without the court indicating that it intended to consider the imposition of sanctions on that day. In respect of the 3 December 2021 order, the defendants asserted that the order was granted in their absence and was premised on the order of 17 November 2021. The defendants further submitted that those orders were erroneously sought and erroneously granted. The plaintiff opposed this application and submitted in the main that the impugned court orders were granted as a result of the defendants’ non-compliance with, and disregard for, previous court orders.

USIKU J considered rule 103 (1) of the High Court rules and common law as they provide for the rescission of judgments/orders obtained by default. To succeed in terms of rule 103(1), the order must have been granted in the absence of any party affected by it and erroneously sought or granted. The court found:

1. The 17 November 2021 order was granted in the presence of defendants’ legal practitioner and the issue of non-compliance with previous court orders was addressed, to which the legal practitioner only stated that ‘he is in the court’s hands’ but offered no reason why the defense should not be struck.
2. Rule 103(1) does not apply to a situation where an affected party was informed of a hearing and the relief that may be sought and such party declines or fails to attend or participate in those proceedings (defendants did not appear on 1 December 2021).
3. To succeed under common law, the applicant must provide a reasonable explanation for default and show a bona fide defense which has reasonable prospects of success on the merits in the main matter. The defendants having been given an opportunity to provide a reasonable explanation but failed to do so, rescission is not the appropriate procedure available to them. The appropriate procedure would either be to appeal or take the decision on review.

As a result, the application for rescission was dismissed with costs occasioned by the application.

Zhao v Hou NAHCMD 28 July 2022