versus

Delivered
on: 1996.06.06

JUDGMENT

MTAMBANENGWE,
J.:
The respondent in this matter has noted an appeal against a judgment
of this Court delivered on 9th March, 1995 in which his claim was
dismissed with costs. The applicant seeks an order in the following
terms:

1.
That the appeal lodged by the respondent has lapsed;

Alternatively

that
the appeal lodged by the respondent and set down for hearing on 12
June 1996 be struck off the roll;

In
the further alternative

that
the respondent be ordered to furnish security to the Registrar of
this Honourable Court in the sum of N$4 000,00 within 10 days from
date of service upon him hereof, failing compliance thereof;

that
the applicant be granted leave to approach this Honourable Court on
the same papers for the dismissal of the respondent's appeal.

That
the respondent be ordered to pay the costs of this application.

3.
Further and/or alternative relief."

The
basis of this application is that respondent has failed or refuses
to furnish security for applicants' costs of appeal as determined
and fixed by the Registrar on 27th March, 1996. The respondent was
requested to furnish the security required in terms of Rule 49(13)
of the High Court Rules which provides as follows:

"(13)
Unless the respondent waives his or her right to security, the
appellant shall, before lodging copies of the record on appeal with
the registrar, enter into good and sufficient for the respondent's
costs of appeal, and in the event of failure by the parties to agree
on the amount of security, the registrar shall fix the amount and
his or her decision shall be final."

Mr
Mouton who appeared for the applicants abandoned the last
alternative prayer in the notice of motion, because, as he
submitted, the respondent was not asking for an extension of time
within which to furnish security or the amount determined by the
Registrar; should the Court consider to extend the time as the last
alternative prayer envisages respondent would come back with the
same argument, so there was no use in granting that relief, since
respondent's refusal is based on the argument that, the matter heard
by the High Court (i.e. the matter in respect of which the appeal
was noted) relates to a labour dispute, not a civil matter - See
Excelsior
Meubels Beperk v Trans Unit Ontwikkelinas Koroorasie Beperk,
1957(1) SA 74 (TPD) where a party ordered to furnish security for
costs failed to and could not do so, and on application for the
dismissal of the action, instituted by that party, the question
arose whether

a
rule
nisi
should issue ordering that party to furnish security or show cause
on the return day why the action should not be dismissed, and the
Court held at p. 77 H:

"The
respondent does not offer to furnish the security nor does it ask
for an extension of the stipulated period. A defence is raised which
would not be successful on a return day if it had to show cause the
action should not be dismissed. A rule
nisi
is unnecessary in the circumstances."

The
abandonment of the said prayer in this matter is quite justified.

This
leads me to respondent's submissions in this matter. In reply to
applicants' affidavits respondent filed an unsworn statement
entitled "FILING PLEA BY RESPONDENT". Rule 6(5)(d)(ii) of
the High Court Rule requires that:

"Any
person opposing the grant of an order sought in the notice of motion
shall:

(i)

(ii) within
14 days of notifying the applicant of
his or her intention to
oppose the
application, deliver his or her answering
affidavit,
if any, together with any relevant
documents;"

In
reply to the replying affidavit filed by applicant, referring to the
Rule and replying "thereto in so far as the Respondent has
placed certain incorrect facts before this Honourable Court"
respondent who appeared in person, countered by referring to Rule
30(1):

"
(1) A party to a cause in which an irregular step or proceeding has
been taken by any other party may, within 15 days after becoming
aware of the irregularity, apply to Court to set aside the irregular
step or proceeding: Provided that no party who has taken any further
step in the cause with knowledge of the irregularity shall be
entitled to make such an application."

No
such application was made by applicant in this case. However, as
applicant states, the document "has no and/or little evidential
value. This is so of course because in proceedings by way of notice
of motion or petition the only way evidence is placed before the
Court is in the form of affidavits.

Briefly
stated, applicants rely for the relief sought, on the fact that
respondent has refused to furnish security for its costs of appeal
and that respondent has not complied with the Uniform Rules of
Court.

Respondent
has, however, put in issue his liability to furnish security. He
bases his opposition to the application on two contradictory
grounds. In one stance he says since, according to him, the matter
heard by the High Court relates to labour disputes there is no
obligation for him to furnish security. When it was pointed out that
it was specifically agreed in the pretrial conference pertaining to
the matter that "The Labour Code is not applicable to this
matter," (Annexure "B" to applicant's replying
affidavit) respondent seemed to argue that he was not bound by that
agreement. That agreement was made when respondent was represented
by two counsel and, as Mr Mouton rightly points out, respondent did
not throughout those proceedings, that is before or during
the hearing, raise such a question although he had ample
opportunity to do so since the Labour Act no. 6 of 19 92 came into
operation during 1992 and before the matter was heard on 14th, 15th
and 16th December, 1994. This in my view is a complete answer to any
complaint that respondent had on this score. Those proceedings were
conducted on the basis of a civil matter and at this late stage
respondent is estoppel from relying on this ground whatever its
merits. I therefore hold that the High Court Rules pertaining to
Civil appeals must apply and are applicable in this matter.

The
other ground for respondent's argument that he is not liable to
furnish security^ is squarely based on the Rules. He says that he
falls within the ambit of Rule 47(7) which provides:

"
(7) Notwithstanding anything contained in these rules a person to
whom legal aid is rendered by or under any law is not compelled to
give security for the costs of the opposing party, unless the Court
directs otherwise."

Respondent
claims that he is a person in that category. The facts pertaining to
this claim are the following:

(1)
Apparently respondent applied for legal aid to enable him to conduct
the appeal to the Full Bench of the High Court. This was refused.
The following letter was addressed to the Registrar of the High
Court from the Ministry of Justice, in this connection:

"RE:
FULL BENCH APPEAL 0 S MWELLIE VS TELECOM NAMIBIA AND
OTHER

I
acknowledge receipt of your letter dated 14 June 1995, regarding
the above matter.

In
this regard I wish to confirm that Mr Mwellie did apply for legal
aid for his appeal on March 13, 1995. After perusing the judgment
appealed against I found that Mr Mwellie had no reasonable grounds
for lodging the appeal and accordingly refused his application.

The
reason for refusing his application were explained to him in a
letter addressed to him dated 17 March 1995.

Yours
faithfully

MR
I V NDJOZE CHIEF: LEGAL AID"

(Annexure
A to applicant's replying affidavit.)

(2) According
to some documents handed in by him during his
submissions in this
matter respondent was advised by
Central Bureau Services (Pty)
Ltd that the cost of
transcribing the record would be in the
region of

N$2
365.97 and a deposit of 50% would be required before start of
transcribing.

(3) Respondent,
as a result of the above, apparently
approached the Permanent
Secretary for Justice, who
then wrote to the Registrar who in
turn wrote to
respondent as follows:

"RE:
FULL BENCH APPEAL: 0 S MWELLIE V TELECOM NAMIBIA (PTY)
LTD AND ANOTHER

Enclosed
please find a copy of the record for your attention.

I
have received instructions from the Permanent Secretary for Justice
to provide you with a copy of the record after you have had a
discussion with him.

Yours
faithfully

REGISTRAR"

Though
his application for legal aid was thus refused by the Legal
Assistance Board and, although he is thus conducting the appeal in
person, and also appeared in person in this matter, respondent
contends that, because the Permanent Secretary for Justice assisted
in securing the record for him free, he is "so far partially
(financially) assisted by Legal Aid or some other law in this action
in accordance to provision or Rule 51(6) and Rule 47(7) ."
There is no substance in this claim. First of all Rule 51(6)
pertains to criminal appeals; and, even if it were said to apply,
the fact is that the Registrar apparently refused to furnish the
respondent with a copy of the record and did so only when the
Permanent Secretary for Justice instructed him to do so. His
application for legal assistance to prosecute the appeal was clearly
turned down as Annexure A (quoted above) shows. That letter emanates
from the Ministry of Justice.

It
should also be noted that respondent has not applied for or been
given assistance to prosecute the appeal in forma
paupris
as he could have done in terms of the Rules. The Rules pertaining to
in forma
oauoris
applications require, in order to determine whether legal assistance
should be afforded an indigent litigant, that a certificate
probabilis
causa
be lodged with the Registrar (Rule 41(2)(b)). Apparently the Legal
Assistance Board" also requires that applicants' claim carries
some prospects of success before the application could be
favourably entertained. Mere indigence is alone not a
qualification for such assistance.

I
do not think that one needs any authority for the self evident
proposition that the requirement for security for costs under any
circumstance is meant to protect the opposing party against being
saddled with that the party from whom security is demanded might not
be able to pay and/or to prevent unnecessary litigation where
prospects of success are doubtful. However, I think, what Curlewis
J.A. said in Chermont
v Lorton,
1929 AD 84, though said in the context of construing a particular
statute, applies to the requirement of security for costs in any
case. His Lordship stated the two-fold purpose of requiring security
under that statute at p. 90 as -

" firstly,
so as to restrain the unsuccessful

party
from lightly indulging in what has been called the luxury of an
appeal, and secondly to afford the successful party some safeguard
in case he wins the appeal and finds that the appellant is a man of
no means, from whom he will be unable to recover the costs of
appeal."

That
should apply a fortiori
where, as in this case, it is almost a certainty that the appeal
will not succeed and that the unsuccessful appellant will be unable
to pay the costs of appeal.

Another
prong of respondent's ground of resistance based on the Rules was
couched as follows in paragraph 9 of his document:

"9.
Originally Telecom Namibia was the Government of Namibia at the
start of this dispute and

accordingly
is exempted from giving or accepting securities on appeal as
provided in Rule"49(14)."

That
subrule provides:

"(14)
The provisions of subrules (12) and (13) shall not be applicable to
the Government of Namibia."

As
applicant states in its replying affidavit:

"Telecom
Namibia has ceased being a Government Ministry or Department since
31st July, 1992 when the Posts and Telecommunications Companies
Establishment Act 17 of 1992 was promulgated and published under
Government Gazette no. 447 dated 31st July, 1992 and was further not
disputed and/or ever placed in issue that first applicant was
transformed into a company, subsequent to summons having been issued
but prior to the hearing of this matter and that it no longer
retained the character of a Government Ministry and/or Department
prior to and during the course of the hearing of this matter on
14th, 15th and 16th December, 1993."

And
again, as applicant rightly says:

"In
any event Rule 49(14) only applies to instances where security is
demanded from Government and not vice versa."

There
is no merit in this ground as well.

With
reference to annexures "A", "B" and "C"
to the founding affidavit of applicant, Mr Malan's affidavit and
respondent's "FILING PLEA BY RESPONDENT" it would appear
that the Registrar fixed, in terms of Rule 47(2), the amount of the
security demanded by applicant, whereas respondent

appears
to have all along been contesting his liability to give security.
Whether that was the case, or otherwise, the criticism by respondent
of the Registrar in the said Annexure C and "FILING PLEA BY
RESPONDENT" as biased, partial, off-hand and highly irregular,
is unjustified without stating specifically what was discussed in
the meeting between respondent and Mr Malan of applicants' attorneys
in the Registrar's office on 27th March, 1996. It was not enough to
say, as respondent says, in the said Annexure C:

"The
Respondents are aware of my stand on their claim of security since
the 22 June 1995. The onus is upon them to take the dispute before
the above Honourable Court for determination thereof. The Registrar
has no jurisdiction in giving a ruling in this dispute."

In
light of these contentions by the applicant and the unclearness of
the papers before me as to what transpired before the Registrar on
27th March, 1996, I shall determine this application on the basis
that respondent is contesting only his liability to give security
and in terms of Rule 47(3) and (5) which provide:

(3) Of
the party from whom security is demanded
contests his or her
liability to give security

within
10 days of demand , the other

party
may apply to Court on notice for an order that such security be
given and that the proceedings be stayed until such order is
complied with.

(4)

(5) Any
security for costs shall, unless the
Court otherwise directs, or
the parties agree, be
given in the form, amount and manner
directed by
the registrar."

In
Selero
(Ptv) Ltd and Another v Chauvier and Another,
1982(3) SA 519 (T) Nestadt J. at pp. 523 F - 524 A referred to
conflicting views as to whether the Court, in exercising its
discretion whether to order the furnishing of security,
consideration of the prospects of success, was or was not a relevant
consideration. Two quotes from Herbstein
and Van Winsen
apparently supporting conflicting views were discussed; the first
being that the Court will not "enquire into the merits of the
dispute or the bona
fides
of the parties." The other was that:

"The
Court is not, however, bound to order security in every case where
it is plain that if the action fails the company would be unable to
pay the defendant's costs, but
is entitled to consider the nature of the particular case,
although it need not enquire fully into the merits and form an
opinion of the plaintiffs prospects of success."

(from
p. 259 of the 3rd edition of the Civil Practice of the Superior
Courts in South Africa).

The
learned judge concluded as follows:

"I
would have thought that where in a patent matter, security for costs
is sought against a defendant, the prospects of success is a
relevant factor in determining how the court's discretion should be
exercised."

I
think that approach, in a matter like the present, accords with the
first purpose of requiring security as stated by Curtlewis J.A. in
Chermont's
case, supra.
I adopt it with respect.

Now
in the matter against which the appeal is noted, applicants
succeeded on a special plea of prescription and I can see no real
prospects of success against that ruling.

In
the result I make the following order:

1. That
in the matter 0
S MWELLIE v TELECOM NAMIBIA AND

A
W G RUCK
security of costs of appeal be given by the appellant.

2. 
   That
   the appeal is stayed until the security in the amount already
   determined by the Registrar is paid.

   
   

3. 
   That
   respondent pays the costs of this application before
   he can proceed with the appeal.