CIVIL PROCEDURE – RESCISSION APPLICATION IN TERMS OF RULE 103(1)(a) AND IN THE ALTERNATIVE THE COMMON LAW

CIVIL PROCEDURE – RESCISSION APPLICATION IN TERMS OF RULE 103(1)(a) AND IN THE ALTERNATIVE THE COMMON LAW

 

The applicants (defendants in the action) brought a rescission application in terms of rule 103(1)(a), and in the alternative in terms of the common law, praying the court to rescind and set aside the order granted by the court on 1 September 2021 under Case No. HC-MD-CIV-ACT-CON-2020/02981 (‘the action’).  The respondents (plaintiffs in the action) moved to reject the application.

 

PARKER AJ dealt with the matter to consider the common law grounds if the rule 103 grounds were rejected. At the threshold, to deal with three points raised by the respondents; The first is the issue of whether the instant proceeding is an interlocutory proceeding within the meaning of rule 32 of the rules of court.  The second issue is whether there has been an undue delay in bringing the application.  The third issue is whether the applicant should have approached the court by way of an appeal.

 

Having granted the relief upon rule 103(1)(a) there was no need to consider the alternative route via the common law. The Court had earlier made an order calling on the parties to appear in court on a set down date for the court to hear evidence of the mediator who had mediated in the dispute as to what really happened at the mediation – that is whether a settlement was reached between the parties and the terms of the settlement. Instead of conducting the business for which the set down date was appointed, and for which had been called, the Court proceeded to grant a final order without notice to the parties.

 

The defendants were not represented by their counsel. A legal practitioner appeared and made the ambivalent statement unknown to the practice of the court that she was representing defendants and standing in for a colleague, the defendants’ legal practitioner. The Court found that the standing-in legal practitioner was not in law the agent of the defendants and so she could not in law have appeared in court to represent the parties. Consequently, this Court found that the Court that granted the final order committed procedural irregularity and that the irregularity was also unconstitutional as the court denied the defendants access to the court. Yet, access to the courts is part of the rule of law upon which the Namibian Constitution is established, consequently, the Court concluded that the final order was erroneously sought or erroneously granted in the absence of the parties.

 

Held that:

 

1. Focus should be on the nature of the procedural irregularity in granting the order complained of to establish whether the order was granted erroneously or sought erroneously.
2. Held, further, once the court holds that an order or judgment was erroneously sought or erroneously granted, it should without further inquiry rescind or vary the order and it is not necessary for a party to show good cause for rule 103(1)(a) to apply.

 

As a result, the order granted on 1 September 2022 under case number HC-MD-CIV-ACT-CON-2020/02981 was rescinded and set aside, with costs.

 

 

RM Trading Enterprises CC v Bruni NAHCMD 2 November 2022