Conclusion based on the case laws referred to above:
(i)
an application to have a void order set aside can be made to the Court which made
the void order;
(ii)
the setting aside must be done under the Court’s inherent power to set aside its
own void order;
(iii)
the Court does not have discretion to refuse the application because the person
affected by the void order has a right to have it set aside;
(iv)
an appeal is not necessary because the order is already void;
(v)
if permission to appeal is sought and if sought out of time permission should be
given because as the order is void time does not run; it is never too late to raise the
issue of nullity; and the person affected by the void order has a right to have it set
aside;
(vi)
a void order can be quashed or declared unlawful by Judicial Review where
available and where damages may also be claimed;
(vii) the whole proceedings is void if it was based on a void act;
(viii) a void order does not have to be obeyed because it has no legal effect from the
beginning;
(ix)
as it is never too late to raise the issue of nullity a person can ignore the void order
and rely on nullity as a defence when necessary;
(x)
a void order is void even if the nullity is unjust or injustice occurs to an innocent
third party;
(xi)
an order of a Court of unlimited jurisdiction is only void if it can be expressly be
shown that the unlimited jurisdiction is limited in that situation, or the order is
founded on an invalid claim or void act;
(xii) no Court (not even the Supreme Court) has jurisdiction to give effect to a void act
and the duty of the Court is only to interpret and apply the law not to reform or
create it as such power rests only with Parliament.
© Shirley Lewald, – 10 July 2010
Updated: 6 February 2011