Court name
High Court Main Division
Case number
APPEAL 282 of 2014
Case name
Maritima Consulting Services CC v Northgate Distribution Services Ltd
Media neutral citation
[2015] NAHCMD 121
Judge
Parker AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 282/2014


DATE:
29 MAY 2015


REPORTABLE


In
the matter between:


MARITIMA
CONSULTING SERVICES
CC
.................................................................APPLICANT


And


NORTHGATE
DISTRIBUTION SERVICES
LTD.....................................................RESPONDENT


Neutral
citation: Maritima Consulting Services CC v Northgate Distribution
Services Ltd
(A 282-2014) [2015] NAHCMD 121 (29 May 2015)


Coram:
PARKER AJ


Heard:
22 April 2015


Delivered:
22 April 2015


Reasons:
29 May 2015


Flynote:
Practice – Applications and motions – Further
affidavits – Court has discretion to allow filing of further
affidavits – In instant case respondent choosing not to apply
to strike out alleged new matter in applicant’s replying
affidavit but rather choosing to apply for leave to file
supplementary answering affidavit – Court considered such
course not adviseable as it did not conduce to structured litigation
in application proceedings and tended to offend the overriding
objectives of the rules of court – Court concluded that
respondent has failed to establish that special circumstances exist
for court to exercise its discretion in favour of permitting the
filing of a supplementary answering affidavit – Consequently,
court dismissed application with costs.


Summary:
Practice – Applications and motions – Further affidavits
– Court has discretion to allow filing of further affidavits –
Respondent averred that applicant’s replying affidavit
contained new matter – Respondent chose not to apply to strike
out the alleged new matter but rather chose to apply for leave to
file supplementary answering affidavit in order to answer the new
matter – Court considered such course unadviseable because it
does not conduce to structured litigation in application proceedings
and it tendered to offend the overriding objectives of the rules set
out in rule 1(2) of the rules of court – Court concluded that
respondent has failed to establish that special circumstances exist
to persuade the court to exercise its discretion in favour of the
respondent’s application – Consequently, court dismissed
application with costs.


Flynote:
Appeal – Leave to appeal against costs order –
General rule is that costs should follow the event and court entitled
to depart from general rule only where special circumstances exist –
Court did not find special circumstances to be present when it
applied the general rule and awarded costs to successful party, and
counsel for unsuccessful party has not in the instant proceeding
pointed to any special circumstances that were present –
Consequently, court concluded that applicant has failed to clearly
indicate reasonable prospects of success on appeal to the Supreme
Court – Principles in S v Nowaseb 2007 (2) NR 640 (H)
applied – Consequently, application dismissed with costs.


Summary:
Appeal – Leave to appeal against costs order – General
rule is that costs should follow the event and court entitled to
depart from general rule only where special circumstances exist –
In instant case court had awarded costs against applicant when its
application was struck from the roll which decision has not been set
aside – Court awarded costs to the party which successfully
moved to reject the application in the absence of special
circumstances – Court reasoned that since it did not find that
special circumstances existed it was not entitled to deny the
successful respondent its costs – Court found that in instant
proceedings counsel did not point to special circumstances that
existed when the costs order was made – Court concluded
therefore that applicant has not indicated clearly prospects of
success on appeal – Consequently, court dismissed with costs
the application for leave to appeal.


JUDGMENT


PARKER
AJ:





[1]
On 22 April 2015 I heard three applications under the same case no. A
282/2014: (a) an application in which Maritima Consulting Services CC
is the applicant and Northgate Distribution Services Ltd is the
respondent, and wherein the applicant made application to sell the
manganese (the subject matter in the main application), filed on 24
February 2015 (application 1), (b) an application in which Northgate
Distribution Services Ltd is the applicant and Maritima Consulting
Services CC is respondent, and wherein the applicant made application
for leave to appeal a costs order, filed on 9 February 2015
(application 2), and (c) an application in which Northgate
Distribution Services Ltd is the applicant and Maritima Consulting
Services CC is the respondent, and wherein the applicant seeks leave
to file a supplementary answering affidavit, filed on 14 January 2015
(application 3).


[2]
On the same day, I granted the relief sought in application 1 in
respect of paras 1, 2 and 3 of the notice of motion for reasons
contained in the chapeu of the order. On the same day I also
dismissed with costs application 2 and application 3, and stated then
that reasons for the order would be delivered to counsel on or before
4 June 2015. These are the reasons. I should state that Mr Tötemeyer
SC (with him Ms Van der Westhuizen), counsel for Maritima Consulting
Services CC, and Mr Ram, counsel for Northgate Distribution Services
Ltd, referred the court to certain authorities in their submissions.
I am grateful for their industry. I have distilled relevant
principles from those authorities that are of assistance on the
points under consideration.


Application
2


[3]
In application 2, the applicant seeks leave to appeal to the Supreme
Court against the costs order that was granted on 20 January 2015.
The starting point of the determination of this application is
indubitably this. The general rule is that costs follow the event,
that is, the successful party should be awarded his or her costs; and
in the absence of special circumstances, a successful party is
entitled to his or her costs. And the general principle is well
entrenched that the award of costs is entirely a matter for the
discretion of the court which, of course, is to be exercised
judicially upon a consideration of the facts of each case; and, in
essence, it is a matter of fairness to both parties. See AC Cilliers,
Law of Costs,
para 2.08; and the case there cited.


[4]
On 20 January 2015 the court granted the following order: ‘The
application is struck from the roll, with costs, including costs of
one instructing counsel and two instructed counsel, and wasted costs
of today’. It is indicated in the record of proceedings why the
striking from the roll order was made. The costs order is but
ancillary to that order. The striking from the roll order has not
been set aside by a competent court to this day; and so, without a
doubt, it remains irrefragably unassailed. The legal consequence of
this is inevitably that Northgate Distribution Services Ltd has
accepted that order striking its application from the roll (in para 1
of the 20 January 2015 order). And, as I have said previously, the
award of costs followed, in the discretion of the court, that event;
the event which up to this day remains unchanged, as aforesaid.


[5]
Thus, costs were awarded, in the discretion of the court, to Maritima
Consulting Services CC because Maritima Consulting Services CC was
successful in rejecting Northgate Distribution Services Ltd’s
application, and the court did not then find the presence of special
circumstances that would entitle it to depart from the rule that
costs should follow the event, as mentioned previously. As I say, I
did not see any legal basis upon which to deny Maritima Consulting
Services CC its costs, and none was pointed to me by Mr Ram in the
instant proceeding.


[6]
The aforegoing analysis points inevitably to the conclusion that
Northgate Distribution Services Ltd has failed to establish that the
discretion to award costs to Maritima Consulting Services CC was
exercised unjudicially, as Mr Tötemeyer submitted. In sum, with
the greatest deference to Mr Ram, I fail to see the legal basis upon
which Mr Ram can seriously argue that a reasonable possibility exists
that the Supreme Court would reach a different conclusion when, as I
have said previously, costs followed the event, ‘the event’
which remains unassailed to this day, and when the court, in granting
the costs order, did not find the presence of special circumstances
that would have entitled the court to depart from the general rule,
and none has been pointed out to the court by Mr Ram. All in all, I
find that the Northgate Distribution Services Ltd has not clearly
indicated reasonable prospects of success on appeal to the Supreme
Court. See
S v Nowaseb
2007 (2) NR 640 (HC) which concerned criminal proceedings. I do not
see any good reason why the principles there should not apply to
civil proceedings.


[7]
I have carefully considered the application; and disabusing my mind –
as far as humanly possible – of the fact that I had no doubt
that the award of costs was made on the facts of the case and on the
well settled principles adverted to above, I am not in the least
satisfied that there is reasonable prospect that the Supreme Court
would take a different view about the court’s interpretation
and application of the rule and its qualification respecting award of
costs. In my judgement, the applicant has not indicated clearly
reasonable prospects of success on appeal. (See
S
v Nowaseb
.)


Application
3


[8]
Northgate Distribution Services Ltd applies also for leave to file a
supplementary affidavit solely on the basis that in its replying
affidavit to Northgate Distribution Services Ltd’s answering
affidavit, Maritima Consulting Services CC included new matter.
Maritima Consulting Services CC has moved to reject application 3 on
the basis that Northgate Distribution Services Ltd, through the
backdoor, as it were, seeks to augment its answering affidavit.


[9]
It has been held that leave to file further affidavits by a party
will be granted only in special circumstances or if the court
considers such a course advisable. (
Herbstein
and van Winsen: The Civil Practice of the Supreme Court of South
Africa
, 4 ed, p 359) Thus, the filing
of further answering affidavits will be permitted where, for
instance, ‘there is a possibility of prejudice to the
respondent if further information is not allowed’. In the
instant case – and this is significant – Northgate
Distribution Services Ltd (respondent) is not seeking the permission
of the court to place before the court further information, which,
for instance and probably, was not available to it when it filed its
answering affidavit; rather, it desires to file a supplementary
answering affidavit, which in its view, will answer what it considers
to be new matter in the replying affidavit filed by Maritima
Consulting Services CC (applicant).


[10]
If there is, indeed, a new matter, why answer it, when, in the first
place, Maritima Consulting Services CC is not permitted to introduce
the new matter in its replying affidavit? The practice in this court
which, in my view, is adviseable and efficacious and which makes a
whole lot of sense is for such respondent to apply to have the new
matter struck. In that event, if the respondent is successful, the
new matter is simply expunged and there will logically be no longer
any matter existing for the respondent to answer and for the
applicant to rely onto support its case. Such approach conduces to
structured litigation in application proceedings; and it commends
itself to me, apart from all else. On that score I accept Mr
Tötemeyer’s submission that allowing the respondent,
Northgate Distribution Services Ltd to file a supplementary answering
affidavit is a sure invitation to unstructured and chaotic
litigation; something, which should not be encouraged, not least
because it tends to offend the overriding objectives of the rules of
court as set out in rule 1(2) of the rules of court.


[11]
All said, I conclude that Northgate Distribution Services Ltd has
failed to establish that special circumstances exist that should
persuade the court to exercise its discretion in favour of permitting
the filing of a supplementary answering affidavit. Indeed, as I have
demonstrated previously, I do not consider the course pursued by
Northgate Distribution Services Ltd of applying for leave to file a
supplementary answering affidavit in these proceedings to be
adviseable.


C
Parker


Acting
Judge


APPEARANCES


APPLICANT:
R Tötemeyer SC (assisted by C E van der Westhuizen)


Instructed
by Engling, Stritter & Partners, Windhoek


RESPONDENT:
R Ram


Instructed
by Köpplinger-Boltman Legal Practitioners, Windhoek