Court name
High Court
Case name
Kato Fishing Enterprises CC v Luderitz Tuna Export (Pty) Ltd
Media neutral citation
[2012] NAHC 93
Judge
Ueitele AJ













REPUBLIC OF NAMIBIA







CASE NO: I 2759/2011







IN THE HIGH
COURT OF NAMIBIA







In the matter between:



CATO FISHING ENTERPRISES CC
….....................RESPONDENT/PLAINTIFF







And







LUDERITZ TUNA EXPORTERS
(PTY) LTD …............APPLICANT/DEFENDANT











CORAM: UEITELE, AJ







Heard on: 27 March 2012







Delivered on: 03 April 2012











JUDGMENT











UEITELE, AJ:



[1] The Plaintiff in the main
action is CATO FISHING ENTERPRISES CC who is the respondent in
this application, but I will for ease of reference refer to it as the
plaintiff. The defendant in the main action is LUDERITZ TUNA
EXPORTERS (PTY) LTD
and I will refer to it as LTE in this
judgment.







[2] During the first part of
September 2011 the plaintiff caused summons to be issued out of this
court against LTE. According to the return of service filed of
record, the Deputy Sheriff for the district of Luderitz served the
summons on the ‘Managing Director of the Defendant’ a
certain Mr Jose Calasa.







[3] On 23 September 2011
Francois Erasmus & Partners, purporting to act on behalf of the
defendant entered a notice of intention to defend the action
commenced by the Plaintiff, but the resolution purporting to
authorize Ms Botes to defendant the action was taken by members of
Luderitz Tuna Exporters CC and the power of attorney was signed by
Jose Lois Calaça in his capacity as Managing Member of
Luderitz Tuna Exporters CC.







[4] On 04 October 2011 Francois
Erasmus & Partners still purporting to act on behalf of the
defendant requested Further Particulars as contemplated in Rule 21 of
this Court’s Rules. The plaintiff’s legal practitioners
did not provide the further particulars requested but applied for
summary judgment.







[5] Francois Erasmus &
Partners still purporting to act on behalf of the defendant opposed
the application for summary judgment. The grounds on which they
opposed the summary judgment were set out in affidavit deposed to by
Jose Lois Calaça (the Managing Member of Luderitz Tuna
Exporters CC). The grounds of opposition were inter alia that
no agreement was concluded between the plaintiff and LTE
because (to the knowledge of Jose Lois Calaça) no juristic
person by the name of LUDERITZ TUNA EXPORTERS (PTY) LTD as
cited in the combined summons exists.







[6] On the date (i.e. the 11th
November 2011) that the application for summary judgment was to be
heard the parties reached an agreement and the application for
summary judgment was removed from the roll and the ‘defendant’
was granted leave to defend the action.







[7] On 28 November 2011 the
plaintiff gave notice that it is withdrawing the action against the
‘defendant’. It is the notice of withdrawal of the action
that gave rise to this application.







[8] On 14 December 2011
Francois Erasmus & Partners gave notice that the ‘defendant’
will on 27 January 2012 apply for an order compelling the Plaintiff
to pay the ‘defendant’s’ costs as a result of the
withdrawal of the action on 28 November 2011.







[9] The plaintiff opposed the
application and the matter was consequently postponed to 27 March
2012 for argument and it came before me on that date.



[10] The ground on which the
plaintiff opposes the application is that the defendant is a non
entity, making the action unenforceable. The sole issue which I am
called upon to determine is thus whether the plaintiff should be
ordered to pay costs of the proceedings up to 28 November 2011 and
the cost of this application.



.



[11] The plaintiff does not
dispute that it brought the wrong party to court. The agreement upon
which the plaintiff's litigation was premised was between the
plaintiff and a close corporation, namely LUDERITZ TUNA EXPORTERS
CC
. It is further common cause between the legal practitioners
for the plaintiff and Francois Erasmus & Partners that the
applicant, to wit LUDERITZ TUNA EXPORTERS (Pty) Ltd –
does not exist.







[12] I now turn to the pivotal
issue of costs. The application is brought in terms of Rule 42(1) of
the High Court Rules, which Rule provides as follows:



42.
(1)(a) A person instituting any proceedings may at any time before
the matter has been set down and thereafter by consent of the parties
or leave of the court withdraw such proceedings, in any of which
events he or she shall deliver a notice of withdrawal and may embody
in such notice a consent to pay costs, and the taxing master shall
tax such costs on the request of the other party.



(b) A consent to pay costs
referred to in paragraph (a), shall have the effect of an order of
court for such costs.



(c) If no such
consent to pay costs is embodied in the notice of withdrawal, the
other party may apply to court on notice for an order for costs
.







[13] The basic rule is that,
except in certain instance where legislation otherwise provides, all
awards of costs are in the discretion of the court.
Hailulu
v Anti-Corruption Commission and Others
2011
(1) NR 363 (HC) and
China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC
2007
(2) NR 674.
It is
trite
that the
discretion must be exercised judiciously
with
due regard to all relevant considerations. The court's discretion is
a wide, unfettered and equitable one. See
Intercontinental
Exports (Pty) Ltd v Fowles
1999
(2) SA 1045.







[14] There is also, of course,
the general rule, namely that costs follow the event, that is, the
successful party should be awarded his or her costs. This general
rule applies unless there are special circumstances present. See
China State
Construction Engineering Corporation (Southern Africa) (Pty) Ltd v
Pro Joinery CC
2007
(2) NR 674







[15] Ms Botes argued that since
the plaintiff withdrew its action it was in the same position as an
unsuccessful litigant and the opposing party is entitled to the cost
associated with the plaintiff withdrawing its claim. She referred me
to the case of Germishuys v Douglas Besproeiingsraad
1973 (3) SA 299 where the headnote reads as follows:



Where a
litigant withdraws an action or in effect withdraws it, very sound
reasons must exist why a defendant or respondent should not be
entitled to his costs. The plaintiff or applicant who withdraws his
action or application is in the same position as an unsuccessful
litigant because, after all, his claim or application is futile and
the defendant, or respondent, is entitled to all costs associated
with the withdrawing plaintiff's or applicant's institution of
proceedings.”







[16] Ms Botes furthermore
argued that ‘a party must pay such costs as have been
unnecessarily incurred through failure to take proper steps, or
through taking wholly unnecessary steps.’ And referred me to
the cases of



China State Construction
Engineering Corporation (Southern Africa) (Pty) Ltd v Pro Joinery CC
and Scheepers
and Nolte v Pate
1909
TS 353.







[17] Mr Horn who appeared for
the plaintiff opposed the application by Francois & Erasmus for
costs on the basis that the defendant is a non entity having no legal
persona (sic) in law.







[18] I have no doubt about the
correctness of the law as stated by Van Rhyn, J in the
Germishuys’s
case as quoted
above in paragraph 15. I furthermore accept the correctness of the
legal principles set out in the cases of
China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC
and
Scheepers and
Nolte v Pate
to
which Ms Botes referred me.







[19] I am of the view that the
case of China State Construction Engineering Corporation
(Southern Africa) (Pty) Ltd v Pro Joinery CC
does not assist
Ms Botes at all. In that case Silungwe AJ said:



...where
an irregular proceeding is a clear nullity, as in the present case,
it is unnecessary for the defendant to enter a notice to defend, on
the basis that there is nothing to defend. In all other cases, or
when in doubt, it is incumbent upon the defendant, as a matter of
ex
abundanti cautela
,
to enter a notice of appearance to defend. In my opinion, a party
enters an appearance in order to defend a claim made against him or
her, but not merely to point out that an irregular proceeding has
occurred. In the instant case, the claim is breach of contract with a
party completely different from the applicant and, therefore, the
applicant would have nothing to defend.







[20] In the present matter the
plaintiff caused summons to be issued against LUDERITZ TUNA
EXPORTERS (PTY) LTD,
which does not exists. The power of attorney
purporting to authorise Ms Botes was signed by Jose Lois Calaça
in his capacity as Managing Member of Luderitz Tuna Exporters CC.
Luderitz Tuna Exporters CC was not a party to the proceedings. It
thus follows that in an instance as the present one where a party
issue summons against a person (natural or juristic) who does not
exists such proceedings are a nullity and it is unnecessary for the
defendant to enter a notice to defend, on the basis that there is
nobody who must defend the action.







[21] In addition to what I have
said in paragraph 20 above, there are two questions that are begging
for answers. The first question is, who on behalf of LTE
instructed Francois Erasmus to oppose the action and to apply for
cost? The second question is, if this court orders the plaintiff to
pay the defendant’s cost who is the defendant who will be
entitled to such cost?







[22] I am thus of the view that
sound reason exists why the defendant or respondent is not entitled
to his costs not and that reason is the fact that the defendant does
not exist. I thus not inclined to exercise my discretion in favour of
Francois & Erasmus legal practitioners. In the result I make the
following order.












  1. The application is dismissed.



  2. There is no order as to costs.








_____________



UEITELE, AJ







ON BEHALF OF THE PLAINTIFF:
Mr Horn



INSTRUCTED BY: M B De
Klerk & Associate







ON BEHALF OF THE DEFENDANT:
Ms. Botes



INSTRUCTED BY: Francois
Erasmus & Partners