Court name
High Court Main Division
Case name
Kwedhi v Amupolo Building Construction CC and Another
Media neutral citation
[2013] NAHCMD 290
Judge
Cheda J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



REASONS



Case no: I 958/2013








In the matter between:








FULBERTUS KWEDHI
...................................................................................PLAINTIFF








and








AMUPOLO BUILDING
CONSTRUCTION CC .....................................1ST
DEFENDANT



GABRIEL ERASMUS
..........................................................................2ND
DEFENDANT








Neutral citation:
Kwedhi v Amupolo Building Construction CC (I 958/2013)
[2013] NAHCMD 290 (17 October 2013)








Coram: CHEDA J



Heard: 24
September 2013



Delivered: 17
October 2013













Flynote:
Interlocutory application –
Respondent failing to comply with the Consolidated Practice
Directives – Legal practitioner not being truthful about his
failure to file Heads of Argument – Urges court to adjourn for
three hours to peruse his Heads of Argument - Court disapproves of
respondent’s legal practitioner’s conduct – matter
removed from the roll – Respondent ordered to pay wasted costs
at a higher scale.








Flynote:
Punitive costs should be
awarded where there has been some conduct which is unbecoming of
either the Legal Practitioner or his client and causes an expense to
the other party. Attorney and client costs should only be granted
where they have been asked for.








Summary:
Applicant set the matter
down for the application for summary judgment and filed Heads of
Argument within the stipulated period in terms of Consolidated
Practice Directives. Respondent filed and/or served his heads of
argument 1
½
hours before the hearing.








When asked by the court
why he did not file his Heads of Argument timeously, his explanation
was unconvincing. Applicant, through his legal practitioner asked for
wasted costs at a higher scale. A litigant/legal practitioner who
disregards the rules of court runs the risk of being penalized with
costs at a higher scale. The matter was accordingly removed from the
roll with respondents bearing the wasted costs at a higher scale.










ORDER










(1) The matter is removed
from the roll.



(2) The respondents to
pay today’s wasted costs on an attorney and client scale.





RULING










CHEDA
J
[1] This matter was set
down for hearing on the 24
th
of September 2013 for an application
for a summary judgment. Applicant/Plaintiff filed his Heads of
Arguments on 20 September 2013 at 10H00 as per the requirements of
the Consolidated Practice Directives (as amended).








[2]
Respondents served their Heads of Arguments on the applicant and the
court on the 24
th
of September 2013 at 08h27 and 09h00
respectively, which was the hearing day. This was 1
½hrs
and 1hr respectively before the hearing at 10H00. Applicant through
his legal practitioner submitted that respondents’ legal
practitioner failed to comply with the Rules of this court in that he
failed to file his Heads of Arguments on or before 12noon on Monday
preceding the Tuesday being the set down day. She further argued that
this non-compliance has resulted in a lot of inconvenience to both
herself and the court. In an attempt to accommodate his
(respondents’) failures, she suggested that the matter should
be stood down for 3 hours in order to allow her and the court time to
peruse respondents’ Heads of Argument. She also submitted that
as a result of respondents’ failure to comply with the rules
they should bear todays’ wasted costs at a higher scale.








[3] Mr Ntinda for
respondents on the other hand submitted two reasons for his failure,
firstly that he failed to comply with the rules as required, because,
he was busy with his other office work and that he did not have
enough time to take further instructions from his client. Secondly,
that he could not have filed his heads of arguments without seeing
those of applicant. He was however, sorry for his failure. As a
remedy to this he conceded to the suggestion by applicant’s
legal practitioner that the matter be stood down for at least 3 hours
to allow for perusal.








[4] Respondent was served
with a notice of set down for today’s hearing as far back as
the 5th of June 2013. This was over 3 months ago but, he
did not bother to file his heads of arguments and only chose to do so
an hour or so before the hearing. This matter was due to be heard on
the set down date. The Registrar’s office is at pains to see to
it that matters are heard on the appointed date. Legal practitioners
should bear in mind that once a date has been allocated to them, they
should ensure that they adhere to it, as failure to do so will no
doubt result in unnecessary disruptions of the otherwise smooth
running of the judiciary system. In my opinion, the courts should
take a dim view of such errant behaviour by legal practitioners.








[5]
Applicant through his legal practitioner was understandably not
impressed by respondent’s stance towards this matter. This is
clear as evidenced by her application for wasted costs at a higher
scale as a condition of removing the matter from the roll. Section 26
(2) (b) of the Consolidated Practice Directives provides for the
removal of an interlocutory matter from the roll in the event of a
failure of it being heard. That being so, the matter should be
removed from the roll.








[6]
Applicant has asked the court to grant him costs at a higher scale in
light of respondents’ attitude in these proceedings. It is
trite law that in matters of this nature,
courts
normally order costs to be in the cause.
This,
however, is not a rigid
rule.
The
question of costs has always been the discretion of the court, which
discretion should be exercised judicially. These courts have always
followed the time-honoured principle laid down in
Kruger
Bros and Wasserman v Ruskin
1,
where,
Innes, CJ
stated ‘
The
rule of our law is that all costs – unless expressly otherwise
enacted – are in the discretion of the Judge. His discretion
must be judicially exercised, but,
it
cannot be challenged, taken alone and apart from the main order,
without his permission
.
This discretion must be
exercised upon a consideration of the facts of each case and what
that means is that it is a question of fairness to both parties.

(see also
Cape underwear
manufacturers (Pty) Ltd v Consolidated Fashion Industries Ltd
2).








[7]
Respondents approached this matter with lack of seriousness. Their
legal practitioner,
Mr
Ntinda admitted to the court that his client Mr Gabriel Erasmus was
not available to give him further instructions in light of
applicant’s heads of arguments. This argument is with greatest
respect not satisfactory because there is no provision for him to
file heads of argument subsequent to those of applicant. It therefore
exposes him to lack of genuiness in his failure to comply with the
rules. He exhibited a cavalier attitude towards his preparation of
this matter. In filing Heads of Arguments an hour before the hearing
when those of applicant’s were filed 3 months ago,

is demonstration enough
of the dilatory manner with which he handled this matter. He seems to
find favour in the suggestion that the court should adjourn for 3
hours in order to peruse his heads which are quite voluminous and
contain various case authorities.
If
the court accedes to this request, it means that the court will
continue to hear arguments without perusal of the cited authorities
as if it is an urgent matter. This is very inconvenient to the court.

To him, this should be
done irrespective of the inconvenience caused. I find that this
conduct on his part is a brazen disregard of the rules of court. Such
conduct in my view deserves the courts disapproval.
The
courts normally would not order a party to pay costs during an
interlocutory application as such costs are normally costs in the
cause, but this is a case where justice demands otherwise. Rules of
the court should be respected by all those who are bound by them; a
party who seeks to deviate from those rules cannot avoid the court’s
indignation by being ordered to pay punitive costs. The courts’
disapproval should, in my view be marked by an award of costs against
respondents at this stage, see,
Associated
Musical Distributors (Pty) Ltd v Big Time Cycle House
3
and Reid
v Royal Insurance Company Ltd
4.








[8]
The courts are generally loathe to order a litigant to pay costs at a
higher scale and often only do so under exceptional circumstances.
This position was ably stated by Tindal, J.A in
Nel
v Waterberg Landbouwers Ko-operative Vereeninging
5
where the learned Judge
stated ‘
The
true explanation of awards of attorney and client costs not expressly
authorized by Statute seems to be that, by reason of special
considerations arising either from the circumstances which give rise
to the action or from the conduct of the losing party, the court in a
particular case considers it just, by means of such an order, to
ensure more effectually than it can do by means of a judgment for
party and party costs that the successful party will not be out of
pocket in respect of the expense caused to him by the litigation
.








[9]
As stated above, these courts have a duty to enforce their own rules.
Therefore,
any
litigants who without just cause choses to breach them should no
doubt be prepared to incur the wrath of the courts. Respondents’
legal practitioner’s attitude towards this matter can best be
described as uncaring. He did not start by seeking condonation for
his non-compliance of the rules, but only did so at the suggestion
and/or remark by applicant’s legal practitioner.








[10]
I totally agree with applicant’s legal practitioner that
respondents should be saddled with wasted costs. It is my view that
an award of costs at a higher scale is no doubt,
harsh
and should be reserved for errant and/or wayward conduct of a
litigant. Such costs should be ordered as a mark of disapproval
towards the conduct of a litigant which results in an unnecessary
expense to the innocent party.
(see,
Epstein and Payne v
Fraay and others
6).
However, punitive costs should only cover the extent of the
litigant’s conduct which has been exposed. In
casu,
it should be today’s wasted costs as all other costs should
always be costs in the cause.
(see
Hamza v
Baifen
7).








[11] In addition thereto,
costs, such as attorney and client costs cannot be granted unless
they have been prayed for by the other party, which is the position
in casu. The courts are also averse in ordering them unless
there exist good reasons for doing so.








[12] Applicant has made a
good case for costs at a higher scale and I am therefore persuaded to
grant the order as prayed for.








[13] These are my reasons
for the said order:























--------------------------------



M Cheda



Judge








APPEARANCES








PLAINTIFF : De
Jager



Instructed by Du Pisani
Legal Practitioners



Windhoek








STATE:
M Ntinda



Of Sisa Namandje &
Co.



Windhoek



















1Kruger
Bros and Wasserman v Ruskin 1918 AD63 at 69.





2Cape
underwear manufacturers (Pty) Ltd v Consolidated Fashion Industries
Ltd 1948 (1) SA 175 and Fuchs & Co v Cohn 1903, %1903, TS208.





3Associated
Musical Distributors (Pty) Ltd v Big Time Cycle House 1982 (1) SA
616 (O).





4Reid
v Royal Insurance Company Ltd 1951 (1) SA 713 (T)





5Nel
v Waterberg Landbouwers Ko-operative Vereeninging 1946 AD 597 at
607.





6Epstein
and Payne v Fraay and others 1948 (1) SA 1272.





7Hamza
v Baifem 1949 (1) SA 993.