- October 2, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
- The order granted on 16 August 2023 is varied and replaced with the following:
1.1. The main application under Case No. HC-MD-CIV-MOT-GEN-2023/00002, any rescission application, any condonation application and any other interlocutory application related thereto are dismissed.
1.2. There is no order as to costs. - The matter is considered finalised and removed from the roll.
Reasons:
Parker AJ:
Why are the parties in court – in this court – under Case No. HC-MD-CIV-MOT-GEN-2023/00002, i.e., Case No. 2023/00002 for short?
The court order of 22 March 2023
[3] In chambers and in the absence of the parties, the court granted the following order on 22 March 2023:
-
- The respondent’s late filing of its Answering Affidavit is hereby condoned.
- The applicants should deliver a replying affidavit if they so wish, on or before 17 April 2023.
- The case is postponed to 21 April 2023 at 10h00 for Residual Court Roll hearing (Reason: Documents Exchange).’
[4] The foregoing is the order sought to be rescinded referred to in para 2 above. The respondent mentioned in the 22 March 2023 order is the respondent referred to as such in para 2 above, and the applicants are the applicants referred to as such in para 2 above.
[5] On 16 August 2023, the court granted the following order:
-
- The rescission application is not opposed and is accordingly granted with costs limited to disbursements.
- The first respondent shall file its replying affidavit in respect of the condonation on or before 25 August 2023.
- The first respondent shall file its heads of argument on or before 1 September 2023.
- The applicants shall file their heads of arguments on or before 8 September 2023.
- The case is postponed to 12 September 2023 at 10h00 for Interlocutory hearing (Reason: Hearing).’
Case No. HC-MD-CIV-ACT-CON-2018/01452
[9] In case number HC-MD-CIV-ACT-CON-2018/01452, default judgment was granted in favour of the respondent against the applicants on 8 June 2018. Thereafter, on 12 November 2019, an opposed rule 108 application was granted declaring Farm Renosterkom (‘the farm’) specially executable.
SA 81/2019
[10] Dissatisfied with the outcome of the Case No. HC-MD-CIV-ACT-CON-2018/01452, the applicants appealed the high court decision to the Supreme Court under case number SA 81/2019. On 15 July 2021, the Supreme Court dismissed the appeal with the costs.
The instant Case No. HC-MD-CIV-MOT-GEN-2023/00002
[11] After the Supreme Court judgment, the applicants on 9 January 2023 launched the instant application under Case No. HC-MD-CIV-MOT-GEN-2023/00002 whereby they sought specific relief.
[12] The order the applicants now ask the court to declare void is the self-same order they appealed from to the Supreme Court, which appeal the Supreme Court dismissed, as discussed in para 10 above. The applicants’ conduct should not be countenance under any circumstances. Such conduct is inimical to the rule of law upon which Namibia’s constitutional life is built on. I shall return to these important remarks in due course.
[15] On the facts of the case, the appeal remedy and the declaratory remedy cannot be said to be mutually exclusive. It follows irrefragably that in virtue of the Supreme Court judgment, the instant main application and interlocutory applications related thereto offend article 81 of the Constitution and disregard Schroeder and Another v Solomon and 48 Others, referred to above, and so they cannot be entertained, as aforesaid.
[16] The order of the court, referred to in para 9 above, declaring the farm specially executable, was made as long ago as 12 November 2019. Despite the failure of the aforesaid appeal from that order in July 2021, that is, more than eight years ago, the appellants have gone on an excursion via the main application and interlocutory applications. Such conduct cannot be countenanced by the court. ‘Effect must be given to orders of court until or unless they are set aside.’ The 12 November 2019 order has not been set aside.
[17] Consequently, as a matter of law, the court cannot hear the main application under Case No. HC-MD-CIV-MOT-GEN-2023/00002, any rescission application, any condonation application and other interlocutory application related to the main application without offending article 81 of the Constitution and without disregarding unconstitutionally and unlawfully Schroeder and Another v Solomon and 48 Others. Indeed, it would be perpetuating the illegal and unconstitutional conduct of the applicants if this court only struck the matter from the roll. Such order would only invite the applicants to ‘frustrate the due process of law and thus undermine the rule of law upon which the Constitution is premised’. The main application, any rescission application, any condonation application and other interlocutory application related to the main application clearly offend article 81 of the Constitution and disregards Schroeder and Another, as aforesaid.
[18] For the foregoing reasons, the proper and effective order to make is to dismiss the main application, any rescission application, any condonation application and any other interlocutory application related to the main application. It would be postponing the funeral of the main application unjustifiably and to no avail if only the rescission application and the other interlocutory applications alone were dismissed. In all this, I cannot say the respondent bears no blame, having allowed itself to accept the aforementioned conduct of the applicants.
[19] Based on all these reasons, I am entitled to amend the order made on 16 August 2023 because the respondent’s constitutional right to fair trial under article 12 of the Constitution, as well as article 81, would be violated if that order was not varied appropriately.
[20] For this circus, the ringmaster’s circus has come to an end. The lights have been turned off!