COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: I 3826/2011
15 APRIL 2015
the matter between:
citation: Olenga v Spranger (I 3826/2011)  NAHCMD 87 (15 April
1 April 2015
15 April 2015
This is an application for payment of costs for management
conferences attended by the defendant as a result of the plaintiff’s
failure to comply with the court’s management order. The court
held that the management hearings were as a result of the plaintiff
not complying with a court order and there is no reason why the
plaintiff should not be ordered to pay costs of the same on the
This is an interlocutory application for an order calling upon the
plaintiff/respondent, above to pay costs attendant upon case
management hearings held on 21 May and 21 November 2014,
respectively. The relief sought is couched in the following terms:
‘That the plaintiff be ordered to pay the wasted costs of the
Court Connected Mediation held on 21 November 2014.
That the Plaintiff be ordered to pay the wasted costs in respect of
the wasted costs of the Case Management Hearing held on 21 May 2013
and 20 June 2013.
That the Plaintiff be ordered to pay the costs of this application.’
must, however, hasten to mention at this nascent stage that the costs
claimed under prayer 1 above are no longer in contention and
reference to them is not made in this judgment.
The application is effectively not opposed as no opposing affidavit
was filed by the plaintiff/respondent. This is so notwithstanding
that a notice to oppose the application had been filed by the
I propose to set the matter in proper perspective by first outlining
the facts giving rise to the application as can be gleaned from the
papers filed of record. For present purposes, I propose to refer to
the parties as they appear in the main proceedings. I shall, for ease
of reference, refer to the plaintiff/respondent as the plaintiff and
to the defendant/applicant as the defendant.
The plaintiff sued out a summons from the office of the Registrar of
the High Court, claiming an
amount of US$ 850,000.00, interest thereon and costs. The amount is
allegedly owing on account of an oral agreement between the parties
in terms of which certain amounts were to be kept by the defendant in
trust but which the defendant allegedly did not pay over when
required. The claim, it must be said is defended by the defendant. I
need not traverse the averrals contained in the pleadings for present
The matter was, at some stage referred to court connected mediation.
On 21 November 2014, the parties were due to appear before a mediator
at SADC Tribunal Building, Advocate A.W. Corbett. It is a matter of
record that the defendant and his legal representative attended the
hearing but the plaintiff defaulted. At paragraph 4 of the present
application, the defendant deposes that after the failure to attend
the said hearing, the plaintiff filed an application for condonation
and tendered costs occasioned by his failure to attend the mediation.
It is the costs associated with that hearing that the defendant
claims in these proceedings. Is he entitled to them, particularly in
view of the plaintiff’s tender to pay same?
It is well to record that in terms of the mediation referral order
dated 30 September 2014, both parties were ordered to attend the
mediation conference at the SADC Tribunal on 21 November 2014 and the
parties were further ordered to be personally present thereat. That
the plaintiff did not attend as ordered, is not just plain from the
uncontested defendant’s affidavit, but it is also confirmed by
the report of the Mediator, Advocate Corbett. The report is dated 24
November 2014 and indicates at paragraph 2, ‘The plaintiff did
not attend the mediation, apparently because he had taken ill. No
documentary proof was furnished in regard to his illness or
unavailability to attend the mediation.’ As a result of the
plaintiff’s non-appearance, the mediator recorded that a
settlement agreement could not be concluded in the matter.
In view of the affidavit filed of record and which I must emphasise
once again, is not controverted, the defendant attended the
arbitration hearing and for that purpose it is claimed, he travelled
from Swakopmund and incurred costs in so doing. The defendant states
further that had the plaintiff indicated any difficulties he
encountered in attending the hearing, the defendant would not have
made the journey. In this regard, it is clear that no information was
furnished to the defendant and the plaintiff behaved as if all was
normal, causing manifold inconveniences to both the arbitrator and to
In an answering affidavit dated 26 November 2014, dealing with an
unrelated matter but one which touches on the events in issue, the
plaintiff admitted that he failed to attend the mediation and
subsequent trial. At paragraph 16 of same, he acknowledged that the
defendant incurred costs of travelling from Swakopmund and ought to
be compensated therefor in costs. He states earlier at paragraph 4 of
the same affidavit that his attorneys of record did not have
instructions at the relevant time to make a tender for wasted costs.
From the foregoing, two things are clear. First, that the application
for payment of the wasted costs is not opposed as no opposing
affidavits have been filed as indicated earlier. Furthermore, from
the contents of the immediately preceding paragraph, it is an
ineluctable fact that the plaintiff acknowledged on oath that the
defendant was entitled to wasted costs of the days in issue and
actually tendered same under oath. He has not and cannot be allowed
to approbate and reprobate at the same time. His has continually sung
this song, as it were, with one voice, namely, the defendant is
entitled to be granted the costs which were incurred as a result of
the plaintiff’s failure to attend hearings ordered by the
court. He claims that he was unwell but for present purposes, he is
not denying his liability to pay same.
The issue of whether the plaintiff was liable to pay the costs served
before court, particularly on 21 May and 21 June 2014 on which days
the court stood the determination of these. On these days, the court
ordered the plaintiff among
other things to comply with certain management orders it had issued.
It is clear in my view that the costs for the management hearings as
stated above, resulted from the plaintiff’s non-appearance as
earlier stated. For instance, in the order dated 21 May 2013, the
court postponed the matter to 23 July 2013 ‘to afford the
plaintiff a further opportunity to comply with the case management
order issued on 5 March 2013’. The court further ordered the
‘wasted costs of today’s hearing are to stand over for
determination’. A similar situation occurred on 21 June 2013
where the court postponed the matter to 24 September 2013 to enable
the plaintiff to again comply with the case management order issued
on 5 March 2013. The determination of the costs for the hearing that
day were again stood over.
It therefore becomes clear to me that the costs for the management
conferences for both days resulted from the plaintiff’s failure
to comply with the management order issued on 5 March 2013. It would
appear that the court, in fairness to the plaintiff, bent over
backwards, on two occasions to enable the plaintiff to comply with
the said order. What cannot be gainsaid is that the defendant
incurred costs for appearing on both dates when the plaintiff had
failed to comply with the court order dated 5 March as aforesaid. In
the premises, I am of the view that there is no reason in law, logic
or common sense why the plaintiff should not be ordered to bear costs
for both these days as both postponements were granted as a direct
result of him not complying with a court order.
The learned author A.C. Cilliers,
states that the purpose of an award of costs is the following:
. . costs are awarded to a successful party in order to indemnify him
for the expense to which he has been put through having been unjustly
compelled either to initiate or defend litigation as the case may be.
Owing to the necessary operation of taxation, such an award is seldom
a complete indemnity; but that does not affect the principle on which
it is based.’
will be clear that the quotation above refers principally to the
award of costs at the end of the litigation but it is my considered
view that the principles enunciated above also apply to matters such
as the present, where the defendant, in this case has been put out of
pocket and has had to attend management hearings which had to be
postponed as a result of the plaintiff not adhering to court orders.
In the premises, I am of the view that the defendant has been put out
of pocket in attending the management hearings which were postponed
to enable compliance with the court order by the plaintiff. The
defendant has eminently made out a case for the plaintiff to bear the
costs of the management hearings dated 21 May and 20 June 2013. He
has had to make application for the grant of the above orders and he
is in my view entitled to cost of this application as well. Both sets
of costs are ordered to be granted on the ordinary scale as no
application has been made for the grant of same on a punitive scale.
The foregoing constitute the reasons why on 1 April 2015, I granted
the order in terms of prayers 2 and 3 of the Notice of Motion dated
15 December 2014.
by Phillip Swanepoel Legal Practitioners
See Notice of Motion dated 15 December 2014.
See Notice dated 23 January 2015..
See particulars of Claim dated 9 December 2011.
See annexures ‘D1’and ‘D2’ to the Notice of
Law of Costs, Lexis Nexis, 1997 at page 1-4.