Johnston v Johnston (APPEAL 267 of 2006) [2013] NAHCMD 346 (20 November 2013)

Johnston v Johnston (APPEAL 267 of 2006) [2013] NAHCMD 346 (20 November 2013)

The court held that the failure to have the edictal citation signed by the registrar was an irregularity, not a nullity, but the applicant's delay in seeking condonation and the unsatisfactory explanations for both the delay and the non-compliance with the rules justified refusal of condonation. The respondent did not waive her right to object by failing to bring a rule 30 application, given the circumstances.

Citation
[2013] NAHCMD 346
Parties
Applicant: Christopher Lyn Johnston; Respondent: Karen Sue Johnston
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
20 November 2013
Case Number
APPEAL 267 of 2006
Procedural Posture
Application for Condonation (civil, Divorce) / Ruling on Condonation and Applications to Strike
Outcome
Application for condonation refused with costs; applicant's application to strike granted with costs; respondent's application to strike refused with costs.
Legal Topics
Condonation, Edictal Citation, Non Compliance With Rules, Divorce Proceedings
Source Language
English
Civil Procedure Family Law Condonation Edictal Citation Non Compliance With Rules Divorce Proceedings

Case Brief

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Parties

Christopher Lyn Johnston

Applicant

Karen Sue Johnston

Respondent

Procedural Posture

Application for Condonation (civil, Divorce) / Ruling on Condonation and Applications to Strike

Legal Issues

  1. 1 Whether failure to comply with rules 4(5)(b) and 17(3) renders the edictal citation a nullity or an irregularity
  2. 2 Whether condonation for non-compliance should be granted
  3. 3 Whether parties' applications to strike should succeed

Ratio Decidendi

The court held that the failure to have the edictal citation signed by the registrar was an irregularity, not a nullity, but the applicant's delay in seeking condonation and the unsatisfactory explanations for both the delay and the non-compliance with the rules justified refusal of condonation. The respondent did not waive her right to object by failing to bring a rule 30 application, given the circumstances.

Court Disposition

Application for condonation refused with costs; applicant's application to strike granted with costs; respondent's application to strike refused with costs.

Orders

  • The applicant’s application to strike is granted with costs.
  • The respondent’s application to strike is refused with costs.