Roland Routh
Windhoek-The extra powers granted to the liquidators of the SME Bank by Deputy Judge President Hosea Angula were reined in on Tuesday by High Court Judge Thomas Masuku when he rescinded and set aside the order granted ex parte by Judge Angula on February 2 this year. An ex parte application is when one party approaches the High Court without notifying the other party or parties involved.
Metropolitan Bank of Zimbabwe and World Eagle Investments, the minority shareholders in the Small and Medium Enterprises Bank (SME Bank), launched an urgent application in the Windhoek High Court.
In their submission they wanted the High court to rescind the order Judge Angula granted to liquidators DJ Bruni and Ian McLaren giving them powers to pay out deposits and institute legal proceedings in courts locally and internationally to recover the SME Bank’s lost millions.
Metropolitan Bank of Zimbabwe, which owns 30 percent shares, and World Eagle Properties which owns 5 percent shares in the SME Bank, had asked Judge Masuku to rescind and set aside the order that was granted by Judge Angula.
The respondents in the matter were Bruni, McLaren, the Namibian Financing Trust that owns the remaining 65 percent for the Government, the Master of the High Court, the Government, the Minister of Industrialisation, Trade and SME Development, the Minister of Finance and the Bank of Namibia.
Only the liquidators opposed the application.
Judge Masuku granted the rescission order and found that the order granted to the liquidators was done in error and must be set aside in its entirety. “In the circumstances, I have come to what I consider as the inexorable conclusion that having regard to all the circumstances of this case, the order granted by the court was so granted in error. This is so because although the applicants had rights and interests which were likely, on all accounts, to be detrimentally affected by the order sought and eventually granted, they were not, however, afforded an opportunity to enter the field of play as it were, and to canvass their case,” Judge Masuku stated.
He ordered that the costs occasioned by the application are to be costs in the liquidation on the scale of one instructing and two instructed counsel. The judge further issued an order that the judgement must be served on the Master of the High Court to determine whether the liquidators did not overstep their boundaries when they sought the order as that is the domain of final liquidators and not provisional liquidators.
The judge is of the view the shareholding of the applicants in the SME Bank, regardless of the extent thereof, entitled them to have a right and interest in the order the liquidators sought and were granted.
He said the applicants have rights and interests which could be potentially affected by the granting of the order in question on an ex parte basis. “It thus follows, as day follows night, that in that context, the court erred in granting the order that it did without notice to the applicants, notwithstanding their clear and unquestionable rights and interests,” ruled Judge Masuku.
He noted: “I am also of the considered view that had the full implications of the order, particularly on the applicant’s rights and interests, been brought to the attention of the honourable Deputy Judge President, when the application was moved, I labour under no illusion whatsoever, considering his impeccable sense of justice, that he would not have granted the order that he did.”
In this regard he strongly exhorted legal practitioners, as officers of the court, to effectively perform their “priestly duties” to the court and not deceive the court by omitting certain
facts.