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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT ON REVIEW

CASE NO. I 1968/2014

In the matter between:

THEOFELUS UVANGA PLAINTIFF

and

CHRISTO STEENKAMP DEFENDANT

RICARDO VAN WYK 1ST THIRD PARTY

ELBY PETRO SNYDERS 2ND THIRD PARTY

Neutral citation: Uvanga v Steenkamp & Others (I 1968/2014) [2016] NAHCMD 378 (2 December 2016)

CORAM: MASUKU J.;

Delivered: 2 December 2016

FLYNOTE : RULES OF COURT – Taxation of bills of costs – rule 75 – a stated case for review of Taxing Officer’s decision – Rule 32 (11) – whether it applies to cases where a special plea has been raised and decided in terms of the ceiling of costs applicable thereunder.

PROCEDURE Taxing Officer – should not, in stating a special case, adopt a litigious posture but should confine his task to formulating the special case and filing a report – should not get embroiled in argument in an effort to justify the decision sought to be impugned.

SUMMARY : The plaintiff, in an action instituted against the plaintiff and the third parties, successfully deflected a special plea raised by the defendant alleging that he did not have the locus standi in judicio to institute the proceedings. The special plea was dismissed with costs.

When the costs came up for taxation, the Taxing Officer was of the persuasion that the proceedings determining the special plea were interlocutory in nature and for that reason, the ceiling of costs applicable to interlocutory matters applied, as contained in rule 32 (11).

Held – a special plea may be either dilatory or peremptory and that in the instant case, the said plea was peremptory as it sought to quash the proceedings altogether. Held further that for that reason the special plea is not an interlocutory to which rule 32 (11) applied.

Held further – that in the instant case, evidence was actually led by the plaintiff in order to deflect the special plea and that it would be unjust for a plaintiff, who is compelled by a special plea to lead evidence, to be only confined to costs available to interlocutory proceedings.

Held – the Taxing Officer should avoid getting caught in the dust of the conflict by making cause with one party or justifying his or her decision by filing heads or documents which are argumentative in nature. He or she must formulate the stated case, where required and then file a report and leave the matter to the court to decide whether he or she was correct in the determination. Held further – that a Taxing Officer is similarly placed with a Magistrate whose decision is being taken on review. They should not allow that process to degenerate and acquire an adversarial posture.

Held further – that if the Taxing Officer assumes an adversarial position, that may serve and justify the court, in appropriate cases, to mulct them in costs, which is otherwise an aberration. The decision of the Taxing Officer was thus reviewed and set aside. No order was made as to costs.

ORDER

1.  The decision of the Taxing Officer to limit the costs of the proceedings in this matter to N$ 20 000 is hereby reviewed and set aside.

2.  It is declared that the special plea of locus standi in judicio raised by the defendant against the plaintiff is not an interlocutory application within the meaning of Rule 32 (11).

3.  There is no order as to costs.

JUDGMENT

MASUKU J.;

Introduction

[1] At the heart of this judgment is a decision of the Taxing Officer limiting costs granted in favour of the plaintiff, following the dismissal of a special plea of locus standi raised by the defendant to the amount determined in rule 32 (11) of this court’s rules.

[2] The matter has been brought in terms of the provisions of rule 75 of the rules. I have read the rule and there appears to be no contention or basis for arguing that the provisions thereof have not been complied with. I accordingly proceed to deal with the substance of the issues raised from that perspective.

Background

[3] The plaintiff instituted an action against the defendant and subsequently against the third parties for the payment of an amount of N$ 123 500 he allegedly suffered as a result of a vehicle of which he claimed ownership, was damaged due to alleged negligent conduct of the defendants and/or the third parties.

[4] The defendant, in his plea, besides pleading over on the merits, also raised a special plea, to the effect that the plaintiff lacked the standing in law to institute the claim as he was not the registered owner of the vehicle that was damaged, as stated in the immediately preceding paragraph. This special plea is, in legal parlance, referred to as locus standi in judicio.

[5] As a result, the court, at the commencement of the trial, decided, before dealing with the case on its merits, as raised in the plea, to deal with the special plea of locus standi. In this regard, evidence was led on the part of the plaintiff and the witnesses were duly cross-examined and the court, after evaluating the evidence, found that the plaintiff had established that he did, after all, have the necessary locus standi. The special plea was thus dismissed with costs.

[6] When the costs granted in favour of the plaintiff were submitted for taxation, the question that faced the Taxing Officer, was whether the said costs should be limited to the amount of N$20 000 stipulated in rule 32 (11). In this regard, the major question for determination is whether the proceedings in question were in terms of the provisions of rule 32, namely, an interlocutory application within the meaning of the rules of court.

[7] I will examine the question and come to a decision, which will ultimately settle the question whether the Taxing Officer was correct in treating the special plea as an interlocutory matter. In this regard, it will be necessary to examine the relevant provisions of the rules and applicable case law closely. I proceed to do so below.

Rule 32 (11)

[8] Rule 32 (11) provides the following:

‘Despite anything to the contrary in these rules, whether or not instructing and instructed legal practitioners are engaged in a cause or matter, the costs that may be awarded to a successful party in any interlocutory proceeding may not exceed N$ 20 000.’

[9] It must be mentioned that the rule does not, however, state what an interlocutory cause or matter is. It is however, important to note that the object of the rules, it would seem, is to limit the number of interlocutory causes or matters to the bare minimum. This is with a view to have the parties concentrate and expend their time and energy on the real issues in dispute. In this regard, the rules, particularly in rule 32 (1), call for ‘speedy finalisation thereof’, namely, of interlocutory proceedings.

[10] Furthermore, in subrule (2), there is an imperative placed on the managing judge, to hear the interlocutory within 30 days of it being brought. In this regard, and once the said interlocutory has been heard, the judge is placed on terms to deliver the ruling thereon within 15 days thereafter, unless the matter involves a complex question of law. In that event, the ruling must be delivered within 30 days.

[11] I make the point above, particularly in relation to the time limits for the hearing and delivery of the ruling, for the reason that it would appear that different procedures and delivery time frames apply to special pleas as I shall demonstrate presently. This, it is my view, points inexorably in the direction that a special plea is not an interlocutory cause or application and for that reason, the provisions of rule 32 do not apply to it, including, in particular, the provisions of rule 32 (11).

[12] The rules provide a guideline for the delivery of judgments. In cases where a special plea has been raised, the period for delivering judgment thereon is a period of 4 weeks. This, in my view, pronounced by the same rule-maker, is indicative that the two procedures are not the same, both in terms of the period within which they have to be attended to and more importantly, as to when a judgment or a ruling should be delivered in the ordinary case. The time for delivery of interlocutory matters is shorter than that of special pleas.

[13] I should add that the application of rule 32 (9) and (10) has been held by this court in Mukata v Appolus[1] to be peremptory in nature, namely that the parties should first seek to resolve interlocutory matters amicably before they launch same for determination by the court. Failure to do so, it has been held, results in those offending matters being struck from the roll. It is clear that no argument in this regard was, or could legitimately have been raised in the case of a special plea and this is simply because it is a totally different species as apples are from oranges.

[14] Furthermore, it is clear that in interlocutory proceedings, and in the majority of cases, all the issues are ordinarily issues of law, which should eschew the leading of oral evidence, hence the short period prescribed for dealing with them in rule 32. In the instant case, as I have pointed out above, the plaintiff testified and he was cross-examined extensively and also called his brother/adoptandus, as a witness. At the end of the evidence, extensive heads and submissions were filed and the court was addressed in a full fashion.

[15] In view of the foregoing, I am of the firm view that it would be a travesty of justice for a successful party, in such a matter, to be confined to recovering costs even at the upper end of the scale set out in rule 32 (11). Had that been the intention, besides the different level of preparation and consultation needed at times for special pleas, like the instant one, where evidence was led, requiring, in the process, the preparation of witness’ statements even for the special plea, the rule-maker would have stated that position without any equivocation.

[16] It must also be borne in mind that in a proper case, a special plea is capable of being dispositive of the entire cause of action between the parties, a characteristic that does not normally attach to interlocutory proceedings, which normally deal with preliminary issues that do not go to the essence of the core issues in dispute. I shall deal with the latter aspect when I refer to authority that defines the two subjects of our discourse in this matter and which should clarify the proper position in this matter beyond any disputation in my respectful view.

[17] To further buttress the point, the learned authors Herbstein & Van Winsen,[2] say the following regarding a special plea:

‘As stated, a special plea is one that does not raise a defence on the merits of the case, but as its name implies, sets up some special defence which has as its object either to delay the proceedings (a dilatory plea) or to quash the action altogether (a peremptory plea). . . These special pleas do not concern the merits of the action. They merely seek to interpose some defence not apparent on the face of the pleadings up to the time when they are raised.’

[18] It is thus clear, from the foregoing that a special plea can either be dilatory or peremptory. In the instant case, the plea of locus standi was not dilatory but peremptory as it sought to quash the proceedings altogether. It could not, in the circumstances, be said to interlocutory and preparatory in nature, as it were, and dedicated to deciding side issues, necessary to be put to bed before the determination of the actual cause of action. Interlocutory proceedings remove temporary impediments and conduce to the hearing of the real issues raised in the cause of action.

[19] On the other hand, the Black’s Law Dictionary, defines ‘interlocutory’ as meaning ‘interim or temporary, not constituting a final resolution of the whole controversy.’ I am of the considered view that the special plea in this matter was sought to quash the entire claim and the fact that it was dismissed does not detract from the its intended effect. More importantly, in my view, it was not raised as an interim or temporary measure but, as stated, was geared towards having the entire case indirectly dismissed, even though not on the merits.

[20] It must also be mentioned that another major difference between interlocutory matters and special pleas is that a party dissatisfied with the decision or ruling in an interlocutory may not appeal to the Supreme Court as of right. They would have to seek and be granted leave by this court, failing which, petition the Chief Justice. In these matters, however, where a special plea has been granted or dismissed, as the case may be, the aggrieved party does not have to seek leave but may apply to the Supreme Court as of right. This is another telling difference between the two species of proceedings.

[21] In the premises, I am of the considered view that the special plea raised in this matter was not, as held by the Taxing Officer, an interlocutory application within the meaning of rule 32. For that reason, I am of the view that the application of the provisions of rule 32 (11) is erroneous and must be set aside.

[22] The Taxing Officer, in his stated case, stated the law as adumbrated in Van Der Walt v Geyser,[3] to the effect that courts should discourage reviews of taxation where the time of the judge is taken up considering relatively trifling amounts in a bill of costs, no matter what principles may be involved. I am in full agreement with the sentiments expressed by the learned Judge in that matter. I must, however, hasten to say that this judgment, in my view, is quite important and may serve to give direction to the question of whether special pleas should be considered as interlocutory in nature or not.