Martucci & Others v Colcellini & Another (I 2295/2015) [2016] NAHCMD 149 (31 August 2018);


Full judgment




CASE NO. I 2295/2015


In the matter between:

PATRIZIA MARTUCCI...............................................................................................1ST PLAINTIFF

BEATRICE BARILLARO...........................................................................................2ND PLAINTIFF

ELENA MARIA RITA BARILLARO........................................................................3RD PLAINTIFF


RITA BAELLI COLCELLINI.................................................................................1ST DEFENDANT

BARBARA COLCELLINI.......................................................................................2ND DEFENDANT

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


Heard: 21 April 2016

Delivered: 18 May 2016

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

Summary: 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.

Held – the law relating to security for costs was primarily designed to protect incola 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.

The 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.

Held further – although applications for security for costs by peregrinii 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 peregrinus plaintiff from supplying security for the costs of a peregrinus defendant.

Held 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.

Held – 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. Held 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.

Held – 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. Held 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.


1.    The application for security for costs is dismissed.

2.    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.

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

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





[1]        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 matter.

[2]        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.

[3]        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.

[4]        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 incolae 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.

Issues for determination

[5] 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 peregrinus of the court against a plaintiff, who, like the defendant, is also a peregrinus 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.

The law regarding security for costs

[6] 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 Witham v Venables[1], the general rule applicable to security for costs, was stated in the following terms:

No 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 civis 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.’ 

[7] 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 incola 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 peregrinus 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 incola’s jurisdiction where the proceedings will have been instituted.

[8] In Setecki v Setecki,[2] Mason J stated the following:

Apparently 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 incola.’

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

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

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

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

[10] In this jurisdiction, the case that deals with the application under consideration generally is Hepute and Others v Minister of Mines and Energy and Another,[4] where the Supreme Court stated the principles applicable to this application in the following terms:

It is trite that in an application for security for costs,

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

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

(c)  the 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]

[11] In Schutz v Pirker and Another,[6] this court held as follows:

[15] 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:

An 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 incola to the fullest extent. He had a judicial discretion to grant or refuse the furnishing of security by means of a cautio fideiussoria by having due regard to the particular circumstances of the case as well as considerations of equity and fairness to both the incola and the non-domiciled foreigner. If the non-domiciled foreigner was, however unable to find a surety, (fideiussor) he could, if he so wished, tender security by way of pledge (cautio pigneraticia) but he was not compelled to do so. . . The Dutch jurists in their treatment of the subject of furnishing security by cautio fideiussoria or cautio juratoria 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:

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

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

3. The object of the cautio juratoria, 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 incola.’

[12] What is plain, from the foregoing, is that such applications were primarily moved at the instance of incola 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.

[13] 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 the 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.

[14] 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:

The 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.’

I shall revert to these remarks in due course.

[15] In Prosecutor-General v Nzinu,[7] Cheda J referred to the case of South African Iron and Steel Corporation v Abdulnabi[8] where 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 –

(a)  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;

(b)  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;

(c)  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.

[16] 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:

A 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.’

[17] 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?

[18] 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.

[19] 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.

[20] According to the learned authors Herbstein & Van Winsen (supra)[9] categories of instances where persons involved in litigation are entitled to demand security for costs include

(a) 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 costs;

(b) cases of appeals by or against peregrini litigants;

(c) claims in reconvention against peregrini plaintiffs;

(d) where peregrini defendants file claims in reconvention;

(e) 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;

(f) vexatious litigation;

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

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

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

[21] As indicated at the beginning of the judgment, cases of peregrini 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 eventualities.

[22] In the Setecki case (supra)[10], the learned judge said the following about the issue of requiring security by a peregrinus of another:

But beyond the case of Ryan v Abrams  (1873, Buch. 93), where both parties were peregrine, 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.’

[23] What is plain from the judgment is that an order for security is normally granted, as previously stated, in favour of an incola defendant against a peregrinus plaintiff. The circumstances in which the court could grant such an application at the behest of a peregrinus requiring security from another peregrinus, the court regarded as doubtful. The court referred to the Ryan 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.

[24] In MV Guzin S (No.2),[11] the court commented as follows regarding this issue:

It is trite law that an incola is entitled to demand that a peregrinus plaintiff put up security for the costs of the action. The position of a peregrinus defendant as against a peregrinus plaintiff is not so clear. In Ryan v Abrams 1873 Buch 93 the parties were both 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.’

[25] 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:

In matters removed from shipping law a peregrinus defendant is not a common sight, but in the fields of shipping law peregrine 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 peregrini 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.’

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

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

[27] 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 peregrinus.

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

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

This 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 peregrinus who may have a valid reason for claiming security from another peregrinus in other cases not related to admiralty or shipping law.

[29] 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.

[30] 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 unjust.

[31] 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.

[32] As the inimitable Lord Atkin once observed:[13]

When 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 undeterred.’

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

If 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.’

I 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.

[33] 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 another 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.

[34] 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.

Is the applicant entitled to the order for security for costs?

[35] 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 parties.[14]

[36] 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 Setecki case, 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]

[37] 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.

[38] 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 event.

[39] 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 brutum fulmen 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 costs.

[40] 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 the 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 circumstances.

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

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

[42] 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.

[43] In the premises, I issue the following order:

1. The application for security for costs is dismissed.

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

3. 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.

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

T.S. Masuku




Francois Erasmus & Partners


Andreas Vaatz & Partners

[1] (1828) Menzies 291.

[2] 1917 TPD (Vol I) 165 at.

[3] Law of Costs, 2nd ed at para 5.18.

[4] 2008 (2) NR 399 (SC) at.

[5] The Civil Practice of the High Courts of South Africa, 5th ed from p. 391.

[6] 2015 (1) NR 231 (HC).

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

[8] 1989 (2) SA 224 at 223F-H.

[9] At p.401b to 403.

[10] At p. 168-169.

[11] 2002 (6) SA 127D & CLD at p. 129.

[12] (Supra) at p. 402.

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

[14] Erasmus Superior Court Practice, Juta, 2000 at B1-341.

[15] At p.169.

[16] Erasmus (op cit) at p. B1-344.