Court name
High Court Main Division
Case number
unknown 2295 of 2015

Martucci & Others v Colcellini & Another (unknown 2295 of 2015) [1970] NAHCMD 149 ();

Media neutral citation
[1970] NAHCMD 149
Masuku J




NO. I 2295/2015


the matter between:







citation: Martucci & Others v Colcellini & Another (I
2295/2015) [2016] NAHCMD 149 (18 May 2016)


21 April 2016

18 May 2016

COURT – Rule 59 - Applications for security for costs at the
instance of a
peregrinus when
sought against another
Meaning of filing applications for security for costs as soon as
reasonably practicable after commencement of proceedings.

The plaintiffs and the defendants are
Italian citizens who are engaged in litigation in Namibia regarding a
motor vehicle collision in which the plaintiffs’ breadwinner
died. The respondents lodged a claim for maintenance and loss of
support against the defendants. The law relating to security for
costs and the applicable principles revisited.

the law relating to security
for costs was primarily designed to protect
defendants against claims instituted
against them by foreigners.
Held –
the court exercises a discretion in
granting or refusing applications for security for costs and which
discretion must be judicially exercised in line with the dictates of
justice and fairness to all the parties.

words ‘entitled to demand security’ in terms of rule 59
examined and classes of persons ‘entitled’ to demand
security in terms of the rule listed.

further –
although applications
for security for costs by
defendants against peregrinii
plaintiffs are a common feature in
shipping and admiralty cases, there is nothing that prevents the
court, in appropriate cases, to order a
plaintiff from supplying security for
the costs of a
peregrinus defendant.

further –
the court exercises its
discretion in granting or refusing such applications and must evenly
balance the interests of justice and fairness in respect of both sets
of litigants.

that in the present case, the
claim was for maintenance and support, particularly of minor children
and it would not be proper to order security as that may serve to
hamper the plaintiffs from pursuing their claim.
further –
since all the parties
were Italian citizens, the defendants did not stand to suffer
prejudice if the claim was dismissed as they could apply for
satisfaction of the costs order in Italy, a common country of
domicile for all the parties.

that it is unnecessary, in the
circumstances, to consider whether or not the application for
security for costs was lodged as soon as it was reasonably
practicable after the commencement of proceedings in light of the
order refusing to grant the application for security for costs.
further –
the court does not
normally consider the lateness of the application for security for
costs to stand as a fatal bar. Application was dismissed with costs.


The application for security for costs is

The defendants are ordered to pay the costs
of the application and such the costs are to include the costs of one
instructing and instructed Counsel.

The parties are to file a joint case plan
in terms of rule 23 within 10 days from the date of this order.

The matter is postponed to 03 June 2016 for
a status hearing in chambers.





Not infrequently, the law throws up a vagary of new and unprecedented
situations that call upon the court to rule upon those situations
with the wisdom of Solomon of Biblical times. This is one such

On 23 July 2012, a motor vehicle accident took place along the B1
road between Okahandja and Otjiwarongo in this Republic. This fatal
collision took place between a Scania truck, bearing registration
number N 6..... W and a Toyota Landcruiser bearing registration
number N 1..... W. The latter vehicle, which belonged to Mountain
View Game Lodge (Pty) Ltd, was allegedly driven by one Mr. Roberto
Colcellini, an Italian citizen, who together with other Italian
passengers in his vehicle, died during the accident.

The plaintiffs’ claim is a dependants’ claim for support
and maintenance as a result of the death of Ms. Michele Maria
Billaro, a passenger in the latter vehicle and who died in the
accident aforesaid. The claim is for a total amount of Euro 307
125.00, interest and costs as reflected in the intendit. It is
alleged that the said Mr. Colcellini drove the said vehicle in a
negligent manner and in respects which I need not narrate at this
stage. This negligent driving, it was alleged, was the cause of the
accident which resulted in Mrs. Billaro forfeiting her life, hence
the claim by her husband and children, the plaintiffs herein.

What is unusual about this application is that it is one for security
for costs, which is moved by the defendants against the plaintiffs.
This is unusual because all the parties, i.e. both the plaintiffs and
the defendants are
peregrinii to
this court as they are all Italian citizens who happened to be in
this jurisdiction when the said accident occurred. The run of the
mill applications for security for costs are usually moved by
who are domiciled within the
jurisdiction or seat of a particular court and who have been sued by
litigants who are
peregrinii of
the court.

for determination

Two main questions fall for determination in this application. The
first is whether the provisions of the rules of this court do allow
for the grant of an application for security for costs in the amount
of N$ 90 000, in favour of a defendant who is a
of the court against a plaintiff, who,
like the defendant, is also a
of the court. The second is whether the
plaintiffs brought the demand for security ‘as soon as
reasonably practicable after the commencement of the proceedings’
as required by the relevant rule.

law regarding security for costs

In order to arrive at a decision in this regard, it is in my view
imperative to go back to the fundamentals. According to the old
decision of
v Venables
general rule applicable to security for costs, was stated in the
following terms:

person, who is either
civis municeps or
incola of
this country, can, as plaintiff, be compelled to give security for
costs, whether he be rich or poor, solvent or insolvent, and on the
other hand, . . . every person, who is neither
municeps, nec incola
, may be called on
to give security for costs, unless he proves that he is possessed of
immovable property, situated within the colony.’ 

The upshot of this decision, and what is inevitably deducible from
the foregoing, is that the issue of security for costs is one
primarily designed to protect an
from being put to expenses of defending
a claim in his or her jurisdiction for a claim at the instance of a
peregrinus of
the said court. Though not stated in the quotation above, this is so
for the reason that should the defendant successfully defend or
deflect the said law suit and a favourable order for costs is granted
in that party’s favour, that party can only be able to satisfy
that judgment in its favour by having to pursue the said
in his or her country of domicile as he
or she will ordinarily not have any property against which to satisfy
the judgment in the
jurisdiction where the proceedings will
have been instituted.

v Setecki,
J stated the following:

it was by practice of the Courts that a foreigner was compelled to
select a
domicilium citandi and
to give security for costs: the reasons for this practice are plain
and justifiable, and the rule though not due to any definite law, so
far as I can judge, probably originated in the old custom of
requiring all plaintiffs to give security. But the practice seems
always to have been applied in favour of an

therefore becomes clear that the grant of an application for security
for costs was primarily made in favour of an
Furthermore, such applications were
born out of practice and not from application of principles of
substantive law.

The learned author, A.C. Cilliers,[3]
states the purpose of security for costs as the following:

has been suggested that the object of this rule is to ensure that the
successful litigant recovers his costs from an unsuccessful
plaintiff whether the latter was
vexatious or not. For if the
plaintiff loses the action, the
security deposited by him is available to defray the successful
defendant’s costs’.

statement of the law, it must be stated, coincides with the views
stated earlier in paragraph 7 above.

In this jurisdiction, the case that deals with the application under
consideration generally is
and Others v Minister of Mines and Energy and Another,
the Supreme Court stated the principles applicable to this
application in the following terms:

is trite that in an application for security for costs,

the court has a discretion to grant or
refuse such security;

the question of security for costs is not
one of substantive law, but one of practice; and

court does not enquire into the merits of the dispute, but may have
regard to the nature of the case.’ See also generally the
learned authors Herbstein and Van Winsen.[5]

v Pirker and Another,
court held as follows:

The question whether or not the court must order a party from whom
security for costs is demanded lies in within the discretion of the
court. The principles, which may guide the court, were set out in the
matter of
Magida v the Minister Police:

incola by
claiming security for costs against a non-domiciled foreigner did not
assert a right flowing from substantive law. In other words, an
incola did
not have a right, which entitled him as a matter of course to the
furnishing of security for his costs. It was a question of practice
in the Dutch courts that a Judge should hold an inquiry to
investigate the merits of the matter fully. The approach of the Judge
was not to protect the interests of the
to the fullest extent. He had a judicial discretion to grant or
refuse the furnishing of security by means of a
by having due regard to
the particular circumstances of the case as well as considerations of
equity and fairness to both the
and the non-domiciled foreigner. If the
non-domiciled foreigner was, however unable to find a surety,
he could, if he so wished, tender security by way of pledge (
) but he was not compelled
to do so. . . The Dutch jurists in their treatment of the subject of
furnishing security by
or cautio
certainly did not consider
the dice to be loaded against a non-domiciled foreigner. On the
contrary, their approach was most benevolent to the non-domiciled
foreigner by stressing
inter alia the
following relevant aspects:

Where the non-domiciled foreigner is
vagabondus without
a fixed residence and has no country of his own (
ginck dwalen, ende gheen Landt ende Jurisdictie Rechter en besadt
the Judge should be more readily disposed to order him to furnish
adequate sureties (
unless he possessed adequate fixed property in respect of which he
could furnish a hypothec. . .

No one should be required to furnish
security beyond his means to an
Nor should a non-domiciled foreigner be compelled to perform the
impossible. . .

The object of the cautio
based on considerations of
equity and justice, was to prevent an impecunious non-domiciled
foreigner from being deprived of his right to litigate against an

What is plain, from the foregoing, is that such applications were
primarily moved at the instance of
defendants who were being sued in their
jurisdictions by
peregrini defendants.
In this regard, the courts sought to be fair to both parties by not
seeking to overly protect the litigant domiciled in the jurisdiction
by placing an unduly heavy burden of security on the foreigner so as
to induce him or her to abandon the claim.

By the same token, it would seem the court had to evenly balance the
scales, in line with the demands of justice and fairness by not
having a litigant domiciled within its jurisdiction being dragged to
court by a foreigner who on the face of it does not have wherewithal
within the jurisdiction to pay the costs of the local litigant should
the latter be successful. On the other hand, the court had to be on
qui vive, as
stated above, to ensure that the foreign litigants are not pushed out
of the court’s portals by being required to furnish security
that would break their backs financially speaking. It was thus a
delicate balancing exercise and in respect of which the discretion
had to be exercised judicially and judiciously.

In this jurisdiction, in the Hepute judgment, (supra) the
Supreme Court stated the following pertinent remarks about the
court’s exercise of its discretion in such matters:

court must carry out a balancing exercise. On the one hand it must
weigh the injustice to the plaintiff if prevented from pursuing a
proper claim by an order for security. Against that, it must weigh
the injustice to the defendant if no security is ordered and the
trial the plaintiff claims fails and the defendant finds himself
unable to recover from the plaintiff the costs which have been
incurred by him in his defence of the claim.’

shall revert to these remarks in due course.

v Nzinu,
J referred to the case of
African Iron and Steel Corporation v Abdulnabi
the following paraphrased nuggets of wisdom regarding the factors
that the court may take into account in the exercise of it’s
discretion in such matters were stated –

the residential circumstances and domicile
of the foreigner. If the foreigner has no fixed address and country
of domicile, the court is likely to order such a foreigner to furnish
security for costs than in a case of one who has a fixed address and
domicile. In this regard, the court is also more likely to order
security to a foreigner who lives in a country where the court’s
order cannot be executed than where it can be easily given effect to;

the financial circumstances of the said
foreigner, so as not to place access to the court and justice, so to
speak, beyond the means of the foreigner;

the character of the foreigner. If the
foreigner strikes the court as a person not to be a person of honour
and integrity, a rascal, for the lack of a better word, the court is
likely to order security against such a party.

It would complete the picture if one has reference to the relevant
rule before dealing directly with the two posers stated above. Rule
59, which governs such applications, provides the following:

party entitled to demand security for costs from another must, if he
or she so desires, as soon as is practicable after the commencement
of proceedings, deliver a notice setting out the grounds on which
security is claimed and the amount demanded.’

It would appear to me that the mystery to unravel at this juncture
includes determining and identifying the parties that are, in terms
of the wording of the subrule, ‘entitled to demand security’.
More pointedly, is a foreigner one such party that is entitled to
demand security from another foreigner when the suit is initiated in
a jurisdiction foreign to both protagonists?

It would appear to me that a party may be ‘entitled’ to
demand security for a variety of reasons. It may be that as a matter
of practice, law or right, (depending on the circumstances at hand),
all of which are subject to the court’s discretion and a
carefully attuned balance had to all the pertinent factors, a party
may be entitled to demand security in line with the rule. A word of
caution is in order at this juncture. When speaking of law, practice
or right in this paragraph, these words are confined solely to the
question of who are entitled to demand security and have nothing to
do with the basis upon which the court deals with such applications
generally speaking.

The word ‘demand’, it must be mentioned, does not
translate to entitlement as of right or law. All this means in my
view, is that the party may apply to the court to grant security for
costs and the fact that that person has a right to make a demand does
not automatically mean that the said person is entitled to security
without more. The court, as earlier intimated, if the other party
challenges liability, then has to cut the proverbial Gordian Knot and
decide whither the interests of justice and fairness lie and therefor
refuse or grant security as the attendant facts may require.

According to the learned authors Herbstein & Van Winsen
categories of instances where persons involved in litigation are
entitled to demand security for costs include

where a
peregrini plaintiff
sues, unless he or she has within the court’s area of
jurisdiction immovable property sufficient to satisfy the bill of

cases of appeals by or against peregrini litigants;

claims in reconvention against peregrini plaintiffs;

where peregrini defendants file claims in reconvention;

where a foreign party appoints a representative or agent as a
litigant within the jurisdiction. The court should look beyond the
nominal party, and pierce the veil as it were and identify the real
person instituting the action;

vexatious litigation;

in appropriate cases, matters involving unrehabilitated insolvents
may, in the discretion of the court require the furnishing of
security; and

cases which may be stipulated by legislation e.g. the Companies Act,
for instance.

law relating to security for costs claimed by a
of another peregrinus

As indicated at the beginning of the judgment, cases of
litigants requiring security from other
peregrini litigants,
are very unusual. For that reason, there is a paucity of case law on
the subject. What can be said, however, is that the few cases on the
subject involve admiralty and shipping cases, which is quite
understandable because in those circumstances, it frequently happens
that a suit is launched on foreign territory and the relevant laws
governing admiralty and shipping cases make provision for such

In the
the learned judge said the following about the issue of requiring
security by a

beyond the case of
Ryan v Abrams  (1873,
Buch. 93), where both parties were
security was nevertheless ordered to be
given though the report does not state upon what grounds, the
instances are all cases of resident defendants. In somewhat analogous
practice of arrest of a
peregrini to
found jurisdiction, the weight of authority is against the right of
one foreigner to arrest another. There seems to me, therefore, to be
considerable doubt whether one foreigner is entitled to demand
security for costs from another foreigner.’

What is plain from the judgment is that an order for security is
normally granted, as previously stated, in favour of an
defendant against a peregrinus
The circumstances in which the court
could grant such an application at the behest of a
requiring security from another
the court regarded as doubtful. The court referred to the
v Abrams
case in which this was done
but the basis for so doing was not stated, though apparent that that
was against the flow judicial opinion and practice at the time.

Guzin S (No.2),
the court commented as follows regarding this issue:

is trite law that an
incola is
entitled to demand that a
plaintiff put up security for the costs
of the action. The position of a
defendant as against a peregrinus
plaintiff is not so clear. In Ryan
v Abrams
1873 Buch 93 the parties were
peregrini and
were temporarily in the then Cape Colony. The report merely records
that the court ordered the plaintiff to find security by the last day
of the term or the arrest to be discharged.’

At p 130 para E-F, after considering the Setecki case (supra),
the court in MV Guzin S then proceeded to express itself in
the following terms per Hugo J:

matters removed from shipping law a
defendant is not a common sight, but in
the fields of shipping law
defendants are thick in the water. In
my experience, in the majority of shipping and maritime cases that
come before the Courts, both plaintiff and defendant are
of this Court. This comes about due to
the extraordinary jurisdiction granted to the Courts of admiralty in
these matters both by the laws of England and by our own Admiralty
Jurisdiction Regulation Act 105 of 1983.’

Critically at para G, the learned Judge reasoned as follows:

have no doubt that the Courts do have a discretion to grant an order
for security for costs where, as here, both parties are
Although the Rule relating to security for costs may have been
instituted in an effort to protect
there is no reason why it should also
not protect
peregrinii such
as the applicant who by force of circumstance must litigate in these

It is therefore clear that the court spoke emphatically, dispelling
any doubt regarding the question. The court came to the view that
there is no reason why such an order cannot be granted at the
instance of a
peregrinus requiring
security for costs from another

Dealing with this very judgment, the learned authors Herbstein &
Van Winsen call upon readers to be on the
following the said judgment willy-nilly, and they reason as follows
in that regard:[12]

should be remembered, however, that this ruling was made in the
limited context of legislation relating to shipping and admiralty

tends to discourage courts from granting such an application in other
matters save in shipping and admiralty matters thus suggesting that
it may not be proper to come to the aid of a
who may have a valid reason for
claiming security from another
in other cases not related to admiralty
or shipping law

I am of the considered opinion that although the case in issue was
admittedly one dealing with shipping matters, there is nothing in the
learned judge’s sentiments that suggests that his view was
limited to shipping and admiralty cases only. His statement was broad
enough, it appears to me, to apply to all other areas of the law in
my considered view. A proper reading of relevant parts of his
judgment is wide enough to apply beyond the confines that the learned
authors suggest and delineate.

Even if the learned authors may be correct in their view and
admonition, I am of the considered view that there is nothing
inherently wrong or improper with a court, on a properly motivated
basis, granting an application for security for costs in favour of a
peregrinus against
another, especially in a situation such as that facing the
plaintiffs, where to borrow from the words of the learned Judge, the
force of circumstances impel them to litigate before our courts.
There may well be circumstances, which may be difficult to comprehend
or draw a
numeras clausus of
at the present moment, where a denial to grant such an order merely
because it is without clear enabling precedent would be unfair and

I am of the view that the issue of the grant or refusal of an
application for security for costs, regardless of who the applicant
or respondent may be, should continue to rest solely in the court’s
discretion and which should not be unduly fettered by the novelty of
circumstances. The court’s hand should not be withered and
rendered impotent in extending justice to deserving litigants only
because there is no clear enabling precedent, when the interests of
justice and fairness otherwise in unison pronounce that route as
proper and condign clearly and in unambiguous terms.

As the inimitable Lord Atkin once observed:[13]

these ghosts of the past stand in the path of justice clanking their
medieval chains the proper course is for the judge to go past them

learned judge (Mutema J) concluded his analysis by saying the
following at p.9:

judges continue to cling to their precedents in such a scenario of
social and economic change, like the grasp of an epileptic during a
fit, they will certainly be sacrificing the fundamental principles of
justice and fairness for which they stand.’

endorse these remarks as appropriate in the instant case, without in
anyway casting aspersions or sounding insensitive to persons who are
medically susceptible to epileptic seizures however.

In the premises, I am of the view that there is nothing in the law of
Namibia that prevents a
peregrinus in
appropriate circumstances, from demanding security for costs against
peregrinus. In
these cases, I am of the considered view that the court should
continue to take into account the usual factors considered in other
cases and decide whither the interests of justice lie. I say so for
the reason that where all relevant factors firstly suggest and then
pronounce in unison that such an order is called for, it would be
preposterous to refuse it on no other basis than lack of precedent in
that regard. Abdication from rendering justice where the facts
eminently call for justice to be done must not form part of this
court’s arsenal.

It must be pertinently observed that some of the precedents we follow
and celebrate today and which we cite with reckless abandon, had to
be made at some stage and in cases after a lot of rumination,
criticism, opposition, uncertainty and at times trepidation. These
understandable and at times necessary but discordant emotions that
are a constant companion in the journey of charting of new paths
should not deter us from extending justice to worthy recipients.

the applicant entitled to the order for security for costs?

Having determined that there is nothing inherently wrong, unfair or
unjust in granting such applications, the only question remaining for
determination at this juncture, is whether the present case is one
where such an order should be granted in the applicant’s
favour. As previously stated, the court must exercise its discretion
referred to earlier judicially and judiciously, and in full
appreciation of the attendant facts of this matter, as well as taking
into account considerations of equity and fairness to both

In the first instance, there is no suggestion that the claim lodged
is in any way frivolous or can properly be regarded as a missive of
harassment emanating from the plaintiffs. In point of fact, without
considering the merits of the claim in any point of detail, it is
plain that this is a dependants’ claim for loss of support and
maintenance as a result of the death of the plaintiffs’
breadwinner.  In the
the court took into account what the claim was about, namely the
welfare of the child, and stated, ‘The real question at stake
is the welfare of the child; this is not a pecuniary claim like those
usually contemplated in the ordering of security’.[15]

By parity of reasoning, in the instant case, the claim is about the
welfare of the plaintiffs, some of whom are the deceased’s
minor children. It would leave a bad aftertaste in the court’s
judicial palate to place in the way of the plaintiffs’ pursuit
of justice the impediment of security for costs, which may result in
them being unable to prosecute their claim against the defendants.

Secondly, I am of the considered view that the fact that both sets of
parties are Italian citizens with recorded addresses in Italy serves
to militate against the grant of an order for security. I say so
because should the defendants succeed to deflect the claim against
them and also obtain a favourable order for costs, there is nothing
said or suggested to the court that would serve to prevent the
defendants from approaching Italian courts of competent jurisdiction,
for satisfaction of the order for costs against the plaintiffs, which
is what a grant of an order for security would seek to achieve in any

There is no suggestion or intimation that the administration of
justice in Italy is not functional such that any order, including one
issued for costs by a competent court such as the present, for
enforcement in Italy would be
and would not be enforced. If,
on the other hand, the defendants were nationals of another country,
say for example Croatia, the court may, in the circumstances have
been minded to grant the application because of the difficulties that
may have been heralded by the applicants having to pursue the
plaintiffs in their native land for satisfaction of the order for

It is my view that the fact that all the litigants are Italian
citizens bodes well and does not place the defendants in a
disadvantaged position as they can pursue any order for costs in
their favour in their mother country. Furthermore, it appears that
domicilium of
the plaintiffs is otherwise known to them and this disposes of the
correspondingly deleterious effect the order for security to be paid
by the plaintiffs may have on their claim in the present set of

The immediately preceding paragraphs respond to the undertaking in
para [14] that I would deal with the implications of the
judgment (supra)
in due course. I have, in this regard, made good on my word.

application been brought as soon as reasonably practicable after
commencement of action?

The last question for determination relates to whether the
defendants’ demand for security for costs was launched as soon
as is practicable after the commencement of the proceedings. In view
of the conclusion that I have reached in the first issue for
determination, namely that the applicant is not entitled to claim
security for costs in the present matter, I find it unnecessary to
consider the latter issue. All I can say is that according to the
authorities,[16] a delay in
filing the application for security for costs is not necessarily a
fatal bar to such applications. The plaintiffs have not suffered any
prejudice as a result of the delay.

In the premises, I issue the following order:

The application for security for costs is

The applicants are ordered to pay costs of
the application and such costs are to include the costs of one
instructing and instructed counsel.

The parties are ordered to file a joint
case plan in terms of the provisions of rule 23 within 10 days from
the date of this order.

The matter is postponed to 6 June 2016 in
chambers for a
status hearing.




B. De Jager

Erasmus & Partners

A. Vaatz

Vaatz & Partners

(1828) Menzies 291.

1917 TPD (Vol I) 165 at.

of Costs,
ed at para 5.18.

2008 (2) NR 399 (SC) at.

Civil Practice of the High Courts of South Africa,
ed from p. 391.

2015 (1) NR 231 (HC).

(A22/2013) [2014] NAHCNLD 38 (02 July 2014).

1989 (2) SA 224 at 223F-H.

At p.401b to 403.

At p. 168-169.

2002 (6) SA 127D & CLD at p. 129.

p. 402.

Cited with approval by Mutema J in
And Others v Fleximail (Pvt) Ltd
(5710/09) [2011] ZWHHC 108 (08 June 2011).

Court Practice,
2000 at B1-341.

At p.169.

Erasmus (
at p. B1-344.