- August 1, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Ruling on Application for Leave to Appeal to Supreme Court: Practice Direction 61
On 6 June 2023, an order was made in terms of which the court, inter alia, cancelled the sale in execution in terms of rule 110(10) of Farm Janine No. 365 situated in Kunene Region which took place on 19 June 2019 and further ordered the purchaser (applicant in the present matter) to vacate the farm within 30 days from the date of the orders. The orders were made due to the fact that the applicant had failed to comply with the conditions of sale particularly the failure to pay the purchase price within the time period stipulated in the conditions of sale. It is against that judgment and orders that the applicant seeks an order for leave to appeal to the Supreme Court. The application was not opposed.
The following are the reasons for that order, per ANGULA DJP:
‘Application for condonation
[5] The applicant also filed an application for condonation for the late filing of her application for leave to appeal. In terms of rule 115(2), an application for leave to appeal must be made within 15 days after the order appealed against was made. As mentioned earlier, the judgment and orders for which leave to appeal is sought, were made on 6 June 2023. The application for leave to appeal was filed with the registrar’s office on 5 July 2023, thus long after the period of 15 days has passed by hence the need for the condonation application.
Brief background
[8] The applicant states that during her application before Prinsloo J she was ‘informed that we should have applied to the Supreme Court instead, for (sic) the High Court cannot rescind or review its own Order.’ It is not apparent why the applicant did not follow the court’s directive and instead decided to bring the present application. In this connection, the applicant does not state in her papers in terms of what legal provisions of rules of this court why requires leave from this court to appeal to the Supreme Court. During the oral hearing, I posed the same question to her but she could not come up with an answer.
Instances where leave to appeal is required
[9] Section 18 of the High Court Act, No. 16 of 1990 (the ‘Act’), stipulates in which instances applications for leave to appeal are required. The relevant sections for the purpose of this matter are subsections 1, 2, and 3…
[10] It is clear from s 18 of the Act that leave to appeal is only required from the court of first instance in three instances: first, where the court from whose judgment or order sought to be appealed, sat as a court of appeal; second, where the judgment and/or order sought to be appealed is an interlocutory judgment or order; and thirdly if leave is refused by the court of first instance such leave must be sought and obtained from the Supreme Court by way of a petition to the Chief Justice.
[11] In the present matter the judgment and orders sought to be appealed from were neither made by the court sitting as a court of appeal nor the judgment and orders are interlocutory. As a matter of fact, the court set as court of first instance. In addition the judgment and orders sought to be appealed from are final in nature in that the judgment and orders are final in that they are definitive of the rights of parties and have the effect of disposing the relief claimed in the main proceedings (Di Savino v Nedbank Namibia Limited (82 of 2014) [2017] NASC 32 (7 August 2017)). The sale agreement entered into between the applicant and the deputy-sheriff has been final and effectively cancelled and cannot be revived. Similarly, the eviction order is final and not of interlocutory nature.
[12] It follows therefore that an appeal against the judgment and the orders made by this court on 6 June 2023 to the Supreme Court is as of right in terms of s 18(2)(a) and no leave to appeal is required. That being the case and even more so there was no need to file an application for condonation.’
As a result, applications for condonation and for leave were struck from the roll and the matter was finalized.