WUM Properties (Pty) Ltd and Another v Prometheus Investments CC and Others (HC-MD-CIV-ACT-CON- 2927 of 2019) [2021] NAHCMD 364 (11 August 2021)

WUM Properties (Pty) Ltd and Another v Prometheus Investments CC and Others (HC-MD-CIV-ACT-CON- 2927 of 2019) [2021] NAHCMD 364 (11 August 2021)

The summons had lapsed as no further step was taken within the prescribed period, and default judgment was erroneously granted in the absence of the applicants and without compliance with rule 15(5). Rescission under rule 103(1)(a) was proper and the judgment must be set aside without further enquiry.

Citation
[2021] NAHCMD 364
Parties
Applicant: Prometheus Investments CC; Applicant: Michael Peter Ott; Respondent: WUM Properties (Pty) Ltd; Respondent: Constance Pimenta; Respondent: Deputy Sheriff – Windhoek; Respondent: Registrar High Court – Windhoek
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
11 August 2021
Case Number
HC-MD-CIV-ACT-CON- 2927 of 2019
Procedural Posture
Civil (contract/rescission of Judgment) / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment rescinded and set aside; no order as to costs; matter removed from the roll and finalised.
Legal Topics
Rescission of Judgment, Default Judgment, Lapsing of Summons, Procedural Compliance
Source Language
English
Civil Procedure Contract Law Rescission of Judgment Default Judgment Lapsing of Summons Procedural Compliance

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Parties

Prometheus Investments CC

Applicant

Michael Peter Ott

Applicant

WUM Properties (Pty) Ltd

Respondent

Constance Pimenta

Respondent

Deputy Sheriff – Windhoek

Respondent

Registrar High Court – Windhoek

Respondent

Procedural Posture

Civil (contract/rescission of Judgment) / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously sought and granted in the absence of the applicants
  2. 2 Whether the summons had lapsed prior to the application for default judgment
  3. 3 Whether rescission could be sought under rule 103(1)(a) instead of rule 16

Ratio Decidendi

The summons had lapsed as no further step was taken within the prescribed period, and default judgment was erroneously granted in the absence of the applicants and without compliance with rule 15(5). Rescission under rule 103(1)(a) was proper and the judgment must be set aside without further enquiry.

Court Disposition

Application for rescission granted; default judgment rescinded and set aside; no order as to costs; matter removed from the roll and finalised.

Orders

  • The judgment obtained by the respondent dated 5 June 2020 in HC-MD-CIV-ACT-CON-2019/02927 is hereby rescinded and set aside.
  • The matter is removed from the Roll and regarded as finalised.