This is an application for review brought in terms of section 27 of the High Court Act [Chapter 7:06].The brief facts surrounding this application are as follows:On 22 November 2013, the Administrative Court granted leave to the applicant to file an appeal out of time against the second respondent's decision ...
This is an application for review brought in terms of section 27 of the High Court Act [Chapter 7:06].
The brief facts surrounding this application are as follows:
On 22 November 2013, the Administrative Court granted leave to the applicant to file an appeal out of time against the second respondent's decision granting a permit to the first respondent to establish a cellular base at a place in Mt Pleasant, Harare.
On 4 December 2013, the first respondent made a chamber application to the Administrative Court for leave to appeal to the Supreme Court against the interlocutory order. The chamber application was served on the applicant on 5 December 2013. The court dealt with and granted the application in chambers on 18 December 2013 before the 10-day period within which the applicant was required to file a response had elapsed.
A default order was in effect granted.
The next day, the applicant filed its notice of opposition. The court, on being advised that it had granted the order in error, accepted its error and requested the parties to appear before it in chambers to map the way forward.
The meeting did not produce any fruitful results.
The first respondent refused to abandon the order granted in its favour resulting in the court ruling that it was functus officio....,.
At the hearing of this matter, I queried the wisdom of bringing the dispute over the propriety of the order granted in default to this court as a review.
An alternative procedure was available to resolve the dispute between the parties.
Both parties agreed that the applicant had the simpler option of placing before the Administrative Court an application for rescission of judgment in terms of Order 49 Rule 449 of the High Court Rules, 1971.
The Rule provides for correction, variation, and rescission of judgments or orders erroneously granted in the absence of any party affected thereby.
The Administrative Court (Miscellaneous Appeals) Rules 1980, do not make provision for rescission of a judgment or order - particularly where there is an allegation that the order or judgement was erroneously made or granted.
In any case, where the conduct of proceedings is not covered by the Administrative Court rules, the practice embraced in that court is to resort to application of the High Court Rules. This course of action is made possible by the provisions of section 13(3)(a) of the Administrative Court Act [Chapter 7:01]. The section reads as follows;
“13(3) In any proceedings not covered by rules in terms of subsection (1) or any other enactment —
(a) The rules relating to practice and procedure in the High Court shall, where appropriate, apply;”
Invoking Rule 449 could have saved the day here.
