Tumas Granite Close Corporation and Another v Minister of Mines & Energy and Others (HC-MD-CIV-MOT-REV-2018/00246) [2025] NAHCMD 49 (14 February 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING ON COSTS

Case no: HC-MD-CIV-MOT-REV-2018/00246

In the matter between:

TUMAS GRANITE CC 1^ST APPLICANT

JÜRGEN HOFFMANN 2^ND APPLICANT

and

THE MINISTER OF MINES & ENERGY 1^ST RESPONDENT

THE MINING COMMISSIONER 2^ND RESPONDENT

THE PERMANENT SECRETARY IN THE

MINISTRY OF MINES AND ENERGY 3^RD RESPONDENT

THE ATTORNEY-GENERAL OF NAMIBIA 4^TH RESPONDENT

SWAKOP URANIUM (PTY) LTD 5^TH RESPONDENT

REPTILE URANIUM (PTY) LTD 6^TH RESPONDENT

NOVA ENERGY (PTY) LTD 7^TH RESPONDENT

NGOSHI POLLY CARPUS NEGONGO 8^TH RESPONDENT

Neutral Citation: Tumas Granite Close Corporation v The Minister of Mines & Energy (HC-MD-CIV-MOT-REV-2018/00246) [2025] NAHCMD 49 (14 February 2025)

Coram: MASUKU J

Heard: 05 February 2025

Delivered: 14 February 2025

Flynote: Civil Procedure - Law of costs - Wasted costs and costs in the cause – Interlocutory proceedings and costs attendant thereto in terms of rule 32(11) – Whether the court may, in its discretion depart from rule 32(11) – Considerations to be taken into account in departing from the provisions of rule 32(11).

Summary: The applicants noted an application for leave to appeal against a decision of the court upholding an application for the respondents to oppose the granting of an order for availing every scrap of paper in an application for review in terms of rule 75. The court found that the fifth to seventh respondents had made out a case for limited disclosure to be made subject to certain conditions. The applicants were dissatisfied with that order and accordingly applied for leave to appeal against the said decision. The application for leave was opposed by the respondents (excluding the Government respondents, who merely filed their papers to assist the court, without taking sides in the dispute). On the date of hearing the application for leave to appeal, the applicants abandoned the application, leaving in its wake, the question of wasted costs.

Held: that where a party is responsible for a case not being proceeded with, such party must be held responsible for making good the wasted costs incurred thereby.

Held that: in the instant case, it was the applicants who were responsible for the abandonment of the application for leave to appeal and for that reason, they were to be held liable for the wasted costs.

Held further that: considering the lateness of the capitulation by the applicants, there was no good reason to order the costs to be in the cause as the respondents had suffered a real and palpable inconvenience as a result of the abandonment of the application for leave to appeal. There is no reason why the respondents should be denied their wasted costs immediately, as the harm they have suffered as a result of the belated abandonment of the application, has immediate financial consequences. The balm of issuing the costs immediately would act as a salve to the injured rights of the respondents.

Held: that the ordinary rule is that in interlocutory matters, the court should ordinarily apply the cap provided in rule 32(11). This is to ensure that parties without deep pockets are able to effectively pursue their cases without being driven out from the proceedings by exorbitant costs order in interlocutory matters.

Held that: notwithstanding the provisions of rule 32(11), the court still retains a discretion to award costs in the excess of rule 32(11). This discretion must be judiciously exercised.

Held further that: considerations that may influence the exercise of the court’s discretion against following rule 32(11), include the complexity of the matter at hand, the fact that the parties are litigating at full with equality of arms and of course the behaviour of the party against whom the adverse order of costs has been issued.

Held: that in the instant matter, the parties are litigating at full throttle and with equality of arms. Furthermore, the applicants’ decision to proceed with the hearing notwithstanding the weighty issues raised by the respondents in opposition, and only withdrawing the application midstream, is conduct worthy of censure. In this regard, the court is entitled to depart from the otherwise mandatory provisions of rule 32(11).

Applicants ordered to pay costs beyond the cap provided in rule 32(11).

ORDER

1. The applicants are ordered to pay the fifth, sixth and seventh respondents' wasted costs in respect of the application for leave to appeal slated for 5 February 2025.

2. The wasted costs shall not be confined to the provisions of rule 32(11).

3. The matter is postponed to 13 March 2025 at 08:30 for directions on the further conduct of the matter.

4. The parties are ordered to file a jointly proposed draft order in respect of the contents of para 3 above, on or before 10 March 2025.

___________________________________________________________________

RULING

___________________________________________________________________

MASUKU, J:

Introduction

1. The question confronting this court at this juncture acuminates to this - is the applicant liable to pay wasted costs immediately or should such costs be reserved for determination at a later stage of the proceedings? A further question to determine, is whether the costs to be levied in this matter, fall within the rubric of rule 32(11).

2. Both Mr Heathcote and Ms Campbell, who represent the respondents, submitted that the wasted costs should be paid immediately, whereas Mr Strydom, for the applicants, submitted that these costs can be reserved and dealt with in due course. The question, as indicated above, is which of the divergent views coincides with legal propriety and the demands of justice. It seems to me that the answer may emerge when the background is narrated, together with the principles applicable to costs.

3. I should mention that Mr Akweenda, for the Government respondents, indicated to court that his clients were not involved in this particular skirmish on costs. This is because his involvement was limited to affording assistance to the court as an officer and nothing more or beyond.

4. I now proceed to chronicle the background giving rise to the present ruling shortly. In doing so, I will cut the matter to the chase and avoid unnecessary details that do not conduce to the determination of the issue under scrutiny.

The parties

5. The first applicant this girl this Miss Munga gave her judgement she doesn't say anything is Tumas Granite CC, a close corporation duly registered in terms of the close corporation laws of this country. The second applicant is Mr Jürgen Hoffmann, an adult male resident in Windhoek.

6. The first respondent is the Minister of Mines and Energy, duly appointed as such in terms of the Constitution. The second respondent is the Mining Commissioner, duly appointed as such in terms of s 4 of the Mineral (Prospecting and Mining) Act 33 of 1992. The third respondent is the Permanent Secretary of the Ministry of Mines and Energy. The fourth respondent is the Attorney-General of the Republic of Namibia, cited in his official capacity as such. He is also appointed in terms of the Constitution.

7. The fifth respondent is Swakop Uranium (Pty) Ltd, a company duly incorporated and registered in terms of the company laws of this Republic. The sixth respondent is Reptile Uranium (Pty) Ltd, a company also incorporated and registered in terms of the company laws of Namibia. The seventh Respondent is Nova Energy (Pty) Ltd, also a company duly incorporated and registered in terms of the company laws of this Republic. The eighth respondent, is Mr Ngoshi Polly Carpus Negongo, an adult male Namibian.

8. Mr Strydom represented the applicants, whereas Mr Akweenda represented the Government respondents. Ms Campbell represented the fifth respondent, whereas Mr Heathcote represented the sixth and seventh respondents. The court records its indebtedness to all counsel for the assistance rendered in the determination of this latest bout in the headbutting among the parties.

9. Due to the fact that the real protagonists are the applicants and the fifth, sixth and seventh respondents, excepting the Government respondents, I shall refer to the fifth, sixth and seventh respondents as 'the respondents' in this ruling. Where I refer to the Government respondents, they shall be identified as such or by the particular name mentioned in the citation of the parties.

Background

10. On 4 October 2024, the court delivered a ruling on an application by the applicants for the production of certain documents by the respondents. The bone of contention was primarily between the applicants and the respondents. The latter alleged on oath that some of the documents required for production, constituted secret or confidential documents, which in some cases, would have devastating consequences on trade secrets and intellectual property, which the applicants could employ to their advantage at no cost to them.

11. After hearing the parties, the court issued an order in the following terms:

‘AD THE FIFTH RESPONDENT

1. The first and second respondents are ordered, within fourteen (14) days from the date of this order, to make the documents listed in Schedule C, read with Schedule D, (‘the documents’), available for inspection to the applicants’ nominated instructing and instructed legal practitioners, to the exclusion of the applicants.

2. The legal practitioners so nominated, are ordered:

   1. not to disclose the information contained in the documents to the applicants or any other third party;

   2. not to retain the documents or copies thereof, in any manner whatsoever, including committing same to memory; reproduction by photocopying or photographing or any other manner of reproduction.

3. The first, second and third respondents are precluded from uploading the documents on eJustice or to otherwise make copies of the documents available to any third party other than the applicants’ nominated instructing and instructed legal practitioners.

4. The applicants are ordered to pay the costs of the fifth, sixth, seventh and eight respondents, consequent upon the employment of one instructing and one instructed legal practitioner, where so employed.

5. Should it be necessary, the parties are given leave to appoint an independent expert to assist the process of dealing with the documents that may prove contentious or obscure to legal practitioners involved in the matter.

AD THE SIXTH AND SEVENTH RESPONDENTS

6. Pursuant to the caveat invitation in paragraph 50¹ of the ruling delivered on 23 February 2023:

6.1 The documents set out in annexure “A” hereto, as indicated in red, shall be made available by the 1^st, 2^nd and 4rd respondents to the applicants’ instructing and instructed legal practitioners within 10 days of this court order, but same shall not be loaded onto e-Justice and same shall not be made available to the applicants themselves.

6.2 The applicants’ instructing and instructed legal practitioners shall not disclose to any other person or entity, including the applicants themselves, any of the documents or parts of the documents set out in annexure “A” hereto.

AD BOTH APPLICATIONS

7. An independent expert, or experts, agreed upon by the parties, if so required, shall assist in the process of viewing the documents and information, subject to the said expert(s) signing a confidentiality undertaking in relation to the documents so viewed.

7. The applicants are ordered to pay the costs of the fifth, sixth, and seventh respondents, jointly and severally, the one paying and the other being absolved, consequent upon the employment of one instructing and one instructed legal practitioner, where so employed.

7. A copy of this ruling is to be provided to the registrar for onward transmission to the Judge-President for his consideration and decision.

7. The application is removed from the roll and is regarded as finalised.’

12. Dissatisfied with the order issued, the applicants, on 24 October 2024, filed an application for leave to appeal against the whole judgment of the court. It was alleged that the court erred in respects that need to be enumerated in this ruling for reasons that will become obvious shortly. It is imperative to observe that the respondents, other than the Government respondents and the eighth respondent, opposed the application for leave to appeal. It is again unnecessary for the court to ventilate their grounds of opposition.

13. With the application being opposed by the above-named respondents, the parties were put to terms to file their respective sets of heads of argument, which they did. A date for hearing the application was set, namely 4 February 2025 at 10:00. Mr Strydom commenced his argument. Whilst he was midstream, as it were, he decided that the applicants would abandon the application for leave to appeal, which proposition the respondents were unexpectedly confronted with and accepted probably with glee.

14. With the application for leave to appeal no longer being pursued, then the question of costs loomed large. As indicated, the respondents' representatives, Mr Heathcote and Ms Campbell applied for wasted costs to be granted in their respective clients' favour. They further urged the court, in so doing, not to be confined to the limits of rule 32(11) in the computation of such costs.

15. Mr Strydom, for his part, argued that there is no harm if the issue of the costs is reserved for future determination. I also understood him to query the proposition that the costs be not subjected to the confines placed by rule 32.

16. The issues the court has to determine, that being the case, are two - namely, whether it is appropriate to order the applicants following the withdrawal of their application for leave to appeal, to pay the wasted costs immediately or to stand these over for determination at a later stage. The second question, should the court find that the wasted costs should be paid, is to determine whether this is a proper case in which the cap placed by rule 32(11) on the costs for interlocutory applications, should not apply. I deal with the first issue first below.

Should the wasted costs be paid immediately?

17. Before I return an answer to the question arising for determination, it is perhaps important that I first deal with the question of what wasted costs are. The learned author Cilliers,² says the following regarding wasted costs:

'The general rule is that where a party is responsible for a case not being proceeded with on the day for hearing, he must pay the costs which are wasted. Such an order was made where an exception had been filed but not properly placed on the roll by the defendant's attorney. In another case where an applicant moved for a final order, the court granted the alternative application for a postponement and ordered the applicant to pay the wasted costs . . . In HiLine Investments (Pty) Ltd v Lamprecht³ the usual rule was stated that where a postponement has become necessary because of the fault or default of one parties, the party at fault must pay the wasted costs occasioned by the postponement. Where, however, the postponement became necessary as a result of blameworthy conduct on the part of both parties, the court may make refuse to make an order for wasted costs occasioned by the postponement.'

18. It is clear that in the instant case, the reason why the matter never proceeded, was because the applicants belatedly succumbed and realised that their application was at best of doubtful success. They thus decided to no longer continue with the application for leave to appeal. As a result of that election, so late in the day, when argument had been commenced by them, they changed their minds in the heat of battle and threw a white towel, so to speak, marking the seizure of interlocutory hostilities. This, in my considered opinion, is a classic case of wasted costs. The respondents came to court, with their bazookas ready to fire lethal arguments and they were stopped dead in their tracks by the capitulation by the applicants.

19. It is thus clear that the costs involved, are wasted costs. The learned author quoted above, states that these costs must be paid by the party in default or at fault. In the instant case, there is no question or doubt that the applicants fall into both categories. There is no reason, in my considered view, why they should not make good the inconvenience they have caused the relevant respondents, who would probably have burnt the midnight oil, in preparation for returning the assault launched by the applicants.

20. From what Mr Strydom submitted, I do not find any compelling reason why the applicants, who only surrendered after the whistle for the exchange of blows had been blown, should not immediately pay the wasted costs. There is no conceivable reason to delay the inevitable in this case. This is not a case where one can argue that the costs must be ordered to be in the cause. An inconvenience was immediately occasioned to the respondents when the applicants announced that hostilities hostilities regarding the application for leave to appeal, would cease thenceforth. It would be unfair and unjust in the circumstances, that the respondents should wait for the balm caused by the inconvenience, to be applied in the indeterminate future, when the harm to their interests, is readily manifest.

21. In view of the conclusion reached above, I am of the considered view that the wasted costs incurred by the respondents should be paid immediately, to act as a salve for the inconvenience caused to them. This capitulation would have resulted in the dislocation of the respondents’ respective schedules due to the application for leave to appeal, which eventually never saw the light of day due to the abandonment of the application by the applicants.

The implications of rule 32(11)

22. The next question relates to the scale of costs the wasted costs ordered should assume. Rule 32(11) has a bearing on the costs to be issued. In order to decide on the scale of the costs, it is necessary, in the first instance, to have regard to the provisions of the said subrule. It reads as follows:

'Despite anything to the contrary in these rules, whether or not instructing and instructed legal practitioners are engaged in a cause or matter, the costs that may be awarded to a successful party in any interlocutory proceeding may not exceed N$20 000.'

23. The obvious reason why this subrule was introduced, stemmed from a realisation of how costs issued in interlocutory proceedings in some cases, served to hamper the cause of justice and particularly the finalisation of cases. Parties stood to gain from raising all manner of interlocutory application, whether sustainable or not. These interlocutory applications served to tire the opponent financially, resulting in the litigants with deeper financial pockets, wrestling their opponents out of the litigation ring, not due to the weakness or unsustainability of their main case, but due to the latter not affording the steep legal fees generated through countless interlocutory applications.

24. The Supreme Court in South African Poultry Association v Minister of Trade,⁴ held that on account of the importance of the issues in that matter, it was necessary for the parties to engage three counsel. In these matters, it has become settled that the court, despite the existence of rule 32(11), still retains a discretion to order costs beyond the cap imposed by rule 32(11). This discretion, it must be mentioned, must be properly exercised so as not to defeat the rationale for placing the cap on the costs. Issues that may influence the court to exercise its discretion and award costs beyond the cap may result from despicable conduct of the parties, the nature of the complexity of the dispute in the interlocutory application and of course, the fact that the parties are litigating at full throttle with equality of arms.

25. This is a case that is hotly contested by all the parties, especially the applicants and the non-Government respondents. It is one that has been interned in the belly of this court for a long time. It raises complex issues of law, the latest being the need for the court to bring into equilibrium the need to disclose every scrap of paper in review proceedings and the right to protect intellectual property and secret and confidential information. This application arises directly from that issue, which is in the cause of being developed in this jurisdiction.

26. It is accordingly plain that even though this was an application for leave to appeal, and therefor an interlocutory matter, the issues raised and sought to be raised in the application for leave to appeal, are complex and require experienced counsel to argue them and assist in refining the jurisprudence of this court as it develops. I should also note that in the previous matters, the parties have appeared before court with equality of arms and have litigated at full throttle, with no party willing to fight with one hand tied to its back, as it were. These considerations persuade me that it is accordingly appropriate to exercise this court's discretion and to order that the provisions of rule 32(11) should not apply.

27. Another issue that I should point out is the inconvenience caused to the respondents by the sudden capitulation of the applicants in relation to the application for leave to appeal. The respondents were firm, fair and frank in their heads of argument that this application was foredoomed to fail because the order sought to be appealed against, is not appealable, even with leave. Despite this warning to the applicants not given freely, but upon legal advice, the applicants chose nonetheless, to proceed with the application for leave to appeal, only for reality to hit them hard even before they could conclude their submissions, well before the respondents were required to respond.

28. In the premises, I incline to the view that the applicants were made wise to the error of their ways and previous views in this matter. They should have been put on the qui vive and should have taken timely and appropriate measures to not burden their opponents and the court with having to burn the midnight oil in preparation for what eventually became a fruitless exercise. It seems there was some epiphanous moment when Mr Strydom was on his feet, which comes as cold comfort to the respondents.

Conclusion

29. In view of what I have stated above, it seems to me that the matter must be decided in the respondents' favour. In this regard, I incline to the view that first, these being wasted costs, they should be paid immediately and not be placed in the 'costs freezer', in the compartment designated to costs in the cause. Secondly, I am of the considered view that a case is made out for the court to exercise its discretion not to impose the costs otherwise recorded in rule 32(11).

Order

30. In view of the discussion and conclusions recorded above, it seems to me that the proper order to issue, is the following:

1. The applicants are ordered to pay the fifth, sixth and seventh respondents' wasted costs in respect of the application for leave to appeal slated for 5 February 2025.

2. The wasted costs shall not be confined to the provisions of rule 32(11).

3. The matter is postponed to 13 March 2025 at 08:30 for directions on the further conduct of the matter.

4. The parties are ordered to file a jointly proposed draft order in respect of the contents of para 3 above, on or before 10 March 2025.

___________

T S MASUKU

Judge

APPEARANCES

APPLICANTS: J Strydom

Instructed by: Theunissen, Louw & Partners, Windhoek

1^st to 4^th RESPONDENTS: S Akweenda

Instructed by: Office of the Government Attorney

5^th RESPONDENT: Y Campbell

Instructed by: Koep & Partners, Windhoek

6^th and 7^th RESPONDENTS R Heathcote SC

Instructed by: Francois Erasmus & Partners, Windhoek