Standard Bank v Tjaronda (HC-MD-CIV-ACT-CON-2023-04373) [2025] NAHCMD 194 (24 April 2025) (HC-MD-CIV-ACT-CON-2023/04373) [2025] NAHCMD 194 (24 April 2025)
Standard Bank v Tjaronda (HC-MD-CIV-ACT-CON-2023-04373) [2025] NAHCMD 194 (24 April 2025) (HC-MD-CIV-ACT-CON-2023/04373) [2025] NAHCMD 194 (24 April 2025)
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
PRACTICE DIRECTIVE 61
RULING ON WASTED COSTS
Case Title: Standard Bank Namibia Limited Plaintiff and Eugenia Cheryl Taylor-Tjaronda Defendant | Case No: HC-MD-CIV-ACT-CON-2023/04373 | |
Division of Court: High Court (Main Division) | ||
Heard before: Honourable Mr Justice Masuku | Date of hearing: On papers | |
Delivered on: 24 April 2025 | ||
Neutral citation: Standard Bank Namibia Limited vs Tjaronda (HC-MD-CIV-ACT-CON-2023/04373) [2025] NAHCMD 194 (24 April 2025) | ||
IT IS ORDERED THAT:
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MASUKU J: Introduction
Background [3] The plaintiff is Standard Bank Namibia Limited, a company with limited liability and duly incorporated in terms of the banking laws of Namibia, having its principal place of business at No.1 Chassie Street, Kleine Kuppe, Windhoek. The defendant is Ms Eugene Cheryl Taylor-Tjaronda, an adult female residing at Erf No 112A, Diaz Street, Windhoek. [4] On 6 February 2025, the defendant filed a status report requesting the court for a postponement and attached a medical certificate indicating that she is booked off for the period of 06 to 14 February 2025. No formal application for the vacation of trial dates, was filed by the defendant. [5] On 7 February 2025, the parties were to attend a roll call, and the plaintiff’s legal practitioner was in attendance. The defendant was, however, not present at the roll call session. [6] The defendant filed her application for postponement of the trial on 10 February 2025 at 9h47, the very day of the trial. This was exactly 13 minutes before the trial was due to commence. Her grounds for the postponement of the trial were that she was sick and had been booked off for the duration of the trial, as evidenced by the medical certificate which she annexed. The plaintiff informed the court that it would not object to the postponement, subject to the wasted costs being awarded to it. The plaintiff’s case [8] The plaintiff submitted that even though it had the right to oppose the application for postponement, it had decided not to object to the postponement, subject to wasted costs being awarded to it. [9] The plaintiff further submitted that the notice of motion in respect of the interlocutory application filed by the defendant, would not have passed muster, since it did not include a prayer for the condonation of the late filling of the application. [10] It was further submitted by the plaintiff that the defendant has a good understanding of the law, however, she chose to wait until a few minutes before the trial, to file her application. Furthermore, the plaintiff submitted that the general rule applicable to costs, is that the party responsible for a case not proceeding on the day of the hearing, must ordinarily pay the wasted costs occasioned by such postponement. [11] The plaintiff contends that the defendant becoming ill cannot serve as an exemption from her having to pay the wasted costs. This is because it had an instructing and instructed counsel reserved and who prepared and appeared on the first day of the trial. [12] The plaintiff further submits that in the absence of a confirmatory certificate by a medical expert, the medical certificate filed by the defendant, cannot be given any weight, especially in a situation where the defendant wants to argue that the postponement was not due to her fault. It is further submitted that, the plaintiff does not know the background of the defendant’s medical condition and whether the condition alleged to have caused the vacation of the trial, was present weeks or months before the trial date. [13] The plaintiff accordingly moved the court to hold the defendant liable for the wasted costs occasioned by the postponement of the trial. The defendants case [14] The defendant, for her part, submits that her status report filed on 6 February 2025, as well as the application for postponement filed on the morning of 10 February 2025, must be read together with her notes on argument. [15] She further submitted that the request for a postponement was necessitated by an unforeseen and sudden medical incapacity. The defendant contends that to grant an adverse costs order against her in such circumstances, would amount to penalising her for a genuine and involuntary medical condition, despite the existence of a bona fide explanation for her absence, resulting in the consequent postponement of the trial. [16] The defendant further argued that upon leaving the doctor’s office, late on 5 February 2025, she immediately notified the plaintiff’s legal practitioner before 09h00 on 06 February 2025, attaching her medical certificate and uploading a status report on e-Justice. It is her case that she only became aware during the weekend of 9 February 2025 that a formal application was also required, which she had inadvertently overlooked due to the schedule of the High Court Rules not expressly listing applications for postponements or short notice postponements. [17] The defendant submits that the plaintiff’s legal practitioners were duly informed of her condition four days prior to the trial date but the plaintiff, however, failed to act reasonably by not notifying their instructed counsel and witnesses accordingly. As a result of that, she further submitted, costs were unnecessarily incurred and that the presence of counsel on 10 February 2025 could have been avoided, had the plaintiff acted upon the early notice she had given. [18] The defendant further submits that she was unable to attend court on 7 and 10 February 2025, respectively, due to being bedridden, and she is uncertain whether the plaintiff's legal practitioners properly informed the court of her certified medical incapacity and that such failure, if it occurred, reflects a lack of professional courtesy on their part. [19] The defendant further points out that there has only been a single request for postponement in the matter thus far, and that such request was justified, reasonable and necessitated by circumstances beyond her control. She reiterates that she took all reasonable steps to inform both the plaintiff and the court at the earliest opportunity of her predicament. [20] While acknowledging the general principle that a party responsible for a matter not proceeding on the scheduled date, is ordinarily liable for wasted costs, the defendant submits that this rule is not absolute, but lies in the court’s discretion. She further submits that she is an unemployed single mother. She is further a caregiver to her mother, who is a pensioner, suffering from multiple stage 4 cancer. As such, she submits that she should not be burdened with an order for wasted costs, given her personal and financial circumstances. [21] Accordingly, the defendant respectfully submits that the court should decline to grant an order for wasted costs against her, all the above factors taken into account. The applicable law [22] Applications for a postponement are not granted merely for the asking. The applicant must move with deliberate haste to move the application as soon as the circumstances suggesting the propriety of moving the application arise. [23] In Transport v Botha t/a SA Truck Bodies, it was held:1 ‘7. An application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purposes of obtaining an advantage to which the applicant is not legitimately entitled. 8. Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of a Court will be exercised. What the Court has primarily to consider is whether any prejudice caused by a postponement to the adversary of the applicant for a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanisms. (Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa 3rd ed at 453.) 9. The Court should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the applicant if it is not. 10. Where the applicant for a postponement has not made his application timeously, or is otherwise to blame with respect to the procedure which he has followed, but justice nevertheless justifies a postponement in the particular circumstances of a case, the Court in its discretion might allow the postponement but direct the applicant in a suitable case to pay the wasted costs of the respondent occasioned to such a respondent on the scale of attorney and client. Such an applicant might even be directed to pay the costs of his adversary before he is allowed to proceed with his action or defence in the action, as the case may be. Van Dyk v Conradie and Another 1963 (2) SA 413 (C) at 418; Tarry & Co Ltd v Matatiele Municipality 1965 (3) SA 131 (E) at 137.’ [24] It would seem to me that there a few considerations that the court should take into account in such matters. The court must consider the following where a medical emergency is alleged. First, the court must consider whether the emergency alleged, is genuine – is it sudden and unforeseen? Furthermore, whether there is sufficient medical evidence of the emergency? I am of the considered opinion that in the instant matter, there is no conclusive evidence that there was a sudden and medical emergency. I will, without creating a precedent, and also accepting that the defendant was not represented, find in her favour on the balance in this regard. [25] It should be pointed out, however that a letter by a medical doctor does not always suffice. Case law suggests that an affidavit is in many instances, required.2 It is common cause that the plaintiff was ready to proceed with the trial on 10 February 2025. The sudden illness of the defendant caused a delay and/or postponement of the trial. That is but one of a possible plurality of hazards. [26] The next consideration, relates to the notice given to the court and the other party. The question is whether the absent party or his or her legal representative, promptly informed the court and the other party of the emergency? In the instant case, it seems that the plaintiff was informed four days before trial of the medical emergency. This, was done with a view to mitigate the disruption caused by the vacation of trial dates. There was, however, no explanation to the court for the absence of the defendant, it would seem at the roll call. The court should have been alerted of the medical emergency as it would seem the plaintiff knew about it, albeit in a less than formal manner. [27] Another consideration, relates to the conduct of the parties before the hearing. In this regard, the court has to consider whether the defaulting party was co-operative and otherwise prepared for the hearing. This must be answered in the positive in this case, as the defendant did inform the plaintiff of the emergency in good time in the circumstances of the case. There is no suggestion that the defendant was not prepared for the trial and used the emergency as a ruse for not attending trial. [28] A related consideration is whether there has been a previous delay or non-compliance or postponement, at the instance of the party seeking the postponement. This consideration guards against a pattern of behaviour suggesting obstructive tendencies on the part of the absent party. The evidence does not suggest the there was such dilatory or obstructive conduct on the part of the defendant in this matter. [29] The next consideration is the effect of the absence. The question is whether the absence did result in the wasting of the court’s time and resources or legal costs for the other party. A related question may be whether the court time allocated for the matter eventually postponed could have been used profitably to hear another matter so as not to lose the court’s time entirely. In this connection, the notice came too late for the court to schedule another matter. This must however, be viewed from the standpoint of this being a medical emergency. It should be mentioned that the plaintiff did suffer loss in relation to costs as a result of the vacation of trial dates. [30] Another consideration relates to the question of proportionality and fairness. In this regard, the question asked is whether the costs issued should be punitive or merely compensatory. In this regard, the court would have to consider whether awarding costs would be reasonable in the light of the absent party’s personal circumstances. [31] In the instant case, I am of the considered view that it being accepted a balance, that the case was one of a medical emergency, the plaintiff’s legal practitioners were informed of the emergency four days in advance and this indicated that the trial might not proceed. This was, of course, subject to the outcome of an application made to the court for the vacation of trial dates. I am of the considered view that the plaintiff could not of its own direct counsel not to prepare until at least an application had been filed. This was only done on the day of the trial. It would thus be a proper exercise of the court’s discretion, in the circumstances, to order the defendant to pay the wasted costs, which are compensatory rather than punitive. These costs will limited to what will be recorded in the order. [32] As indicated above, I am of the considered opinion that it would be unfair and unjust for the court to impose punitive costs on the defendant. This is so when proper regard is had to the cause of the trial being vacated, namely, a medical emergency. The court sympathises with the defendant, in the predicament she found herself in, due to her illness. However, when exercising its discretion, the court cannot turn a blind eye to the wasted costs incurred by the plaintiff as a result of the vacation of the trial dates. [33] The court further takes cognisance of the fact that the circumstances prompting the postponement were not self-created, malicious or mala fide actions by the defendant, but the court must also recognise the glaring fact that there were wasted costs occasioned, which need a balm of costs to soothe, to the extent possible. [34] In the result, the following order is made:
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Judge’s signature: | Note to the parties: | |
MASUKU J | Not applicable. | |
Counsel: | ||
Plaintiff | Defendant | |
C van Zyl of Fisher, Quarmby & Pfeifer, Windhoek | E C Taylor-Tjaronda In person | |
1 Myburgh Transport v Botha t/a SA Truck Bodies 1991 NR 170 (SC).
2 Katumbe v Kaiyam (14 of 2012) NAHCMD 21 (28 January 2014)