SUMMARY
REPORTABLE

CASE NO.: A
292/2008

IN THE HIGH
COURT OF NAMIBIA

In the matter
between:

EPHRAIM
KAHORERE AND OTHERS v THE MINISTER OF HOME AFFAIRS AND OTHERS

PARKER J

2011 February
22

Delict
- Arrest
and detention - Where arrest and detention not in dispute -Onus on
defendant to prove arrest and detention were lawful -Plaintiffs
arrested on suspicion of theft of cattle - Court finding that on
information received, which the second defendant (a police official)
reasonably believed to be true, second defendant reasonably suspected
plaintiffs to have committed a Schedule 1 offence in terms of s. 39,
read with s. 40, of the Criminal Procedure Act, 1977 (Act No. 51 of
1977) (CPA) - Consequently, Court finding that the second defendant
has discharged onus cast on him to prove arrest and detention are
lawful.

Delict
- Arrest
- Assistance offered by fifth defendant (non-police official) to the
second defendant (a police official) at second defendant's request in
arresting the plaintiffs - Court finding that fifth defendant had a
statutory duty in terms of s. 47 of the CPA to give such assistance
-Consequently, Court finding fifth defendant not liable.

Delict
- Malicious
prosecution - What plaintiff must prove - Court applying elements set
out in Akuake
v Jansen van Rensburg 2009
(1) NR 403 ('the Akuake
elements')
- Plaintiffs averring that because the charge of stock theft had been
withdrawn in earlier proceedings and reinstated in subsequent
proceedings that meant the latter was done as a result of the
'instance' of the fourth defendant and therefore the fourth defendant
is liable - Court holding that consideration of averment ought to be
subjected to the interpretation and application of Article 88 of the
Namibian Constitution, dealing with the power of the
Prosecutor-General's power as to whether to prosecute or not to
prosecute in any individual case.

Evidence
- Hearsay
evidence - Court confirming what constitutes hearsay evidence - Court
holding that statement made to the Police forming the basis of the
Police reasonably suspecting the commission of the offence of stock
theft by the plaintiffs not hearsay if information is placed before
the Court.

Held,
that
where in a case it is averred that prosecution was carried on at the
'instance' of the defendant the Court must subject the consideration
of the averment to the interpretation and application of Article 88
of the Namibian Constitution which concerns the power of the
Prosecutor-General to whether to prosecute or not to prosecute in any
individual case.

Held,
further
that evidence is hearsay and inadmissible when the object of the
evidence is to establish the truth of what is contained in the
statement; and it is not hearsay and is admissible when it is
proposed to establish by evidence, not the truth of the statement,
but the fact that it was made.

CASE
NO.: A 292/2008

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

EPHRAIM
KAHORERE
…..........................................................First
Plaintiff

ISRAEL
KAHORERE
…..........................................................Second
Plaintiff

MANFRED
TJIVAVA
….............................................................Third
Plaintiff

and

MINISTER
OF HOME AFFAIRS …...........................................First
Defendant

B
JAN PETRUS BOOYSEN
…..............................................Second
Defendant

DETECTIVE
SERGEANT VAN WYK …....................................Third
Defendant

AT
VAN VUUREN
…............................................................Fourth
Defendant

JAN
PIENAAR
…....................................................................Fifth
Defendant

CORAM:
PARKER
J

Heard
on: 2009
July 6-16; 2010 January 18-27, 2010 June 21-2 July; 2010 December 1-9

Delivered
on: 2011 February 22

JUDGMENT

PARKER
J:
[1]
In June 2001 the first plaintiff, second plaintiff and third
plaintiff were arrested on suspicion of having committed the offence
of stock theft, involving 45 head of cattle, the property of the
fourth defendant. In the course of their trial in the Gobabis
Magistrates' court the charge against the plaintiffs was withdrawn in
October the same year. Subsequent to that, in 2002 the plaintiffs
were served with criminal summons to reappear for trial on the
selfsame stock theft charge. In 2003 after the fourth defendant and a
Rooinasie had testified the plaintiffs were discharged in terms of s.
174 of the CPA. The plaintiffs instituted a civil action against the
first defendant, second defendant, third defendant, fourth defendant
and fifth defendant in which -

(1)
the
first plaintiff's
claim
is for:

(a)
unlawful arrest and detention, and

(b)
malicious prosecution

(2)
the
second plaintiff's
claim
is for:

(a)
unlawful arrest and detention, and

(b)
malicious prosecution

(3)
the
third plaintiff's
claim
is for:

(a)
unlawful arrest and detention,

(b)
malicious prosecution, and

(c)
assault

[2]
The plaintiffs testified on their own behalf; no other witnesses were
called to testify on behalf of any of the three plaintiffs. The
second, third and fifth defendants testified. The second defendant
was the arresting officer, and the third defendant was the
investigating officer of the stock theft case. The fourth defendant
was the complainant in the stock theft case, as aforesaid. The fifth
defendant was the owner of Farm Masinde where all three plaintiffs
were interviewed by the second defendant during the wee hours of 8
June 2001. Mr. Maherero, a police official, Mrs. Tuhadaleni, also a
police official, and Mr. Podewiltz, who was the public prosecutor in
the stock theft case against the plaintiffs in the Gobabis
magistrates' court, testified for the defence.

[3]
I shall consider the claim of unlawful arrest and detention first.
Since the fact of arrest and detention is not disputed, the second
defendant, who I find to have effected the arrest and detention,
bears the onus of proving that the arrest and detention were lawful.
(See Lombo
v African National Congress 2002
(5) SA 668 (SCA); Saviour
Ndala Tutalife and Others v Minister of Home Affairs and Another Case
Nos. I588/2008

and
I589/2008 (Unreported).)

[4]
Under this claim, I find that each plaintiff was arrested and
detained by the second defendant, a police official of the Namibia
Police (NAMPOL), between the evening of 6 June 2001 and the early
morning the following day. It cannot be disputed that since the
arrest and detention were carried out by a NAMPOL official in the
context of the commission of the crime of stock theft allegedly
committed by the three plaintiffs, the Criminal Procedure Act, 1977
(Act No. 51 of 1977) (CPA) comes into play. The question I must
answer is therefore this: did the second defendant have lawful reason
to arrest and detain the plaintiffs within the meaning of s. 39, read
with s. 40, of the CPA? (Saviour
Ndala Tutalife and Others v Minister of Home Affairs and Another
supra)
In terms of s. 40 (1) (b) of the CPA the second defendant had the
power to arrest the plaintiffs without a warrant so long as the
second defendant reasonably suspected the plaintiffs to have
committed the crime of stock theft which is a Schedule 1 offence in
terms of the CPA.

[5]
What was the basis of the second defendant's reasonably suspecting
the plaintiffs to have committed the said offence? In this regard, I
make the following factual findings. The second defendant requested,
and obtained, permission from his superior officer, Detective
Inspector Isaacs, to assist in investigating the theft of 45 head of
cattle, the property of the fourth defendant which theft the fourth
defendant had reported to NAMPOL. From the aforementioned Johannes
Rooinasie, the second defendant obtained what he considered to be
useful information, which he believed to be reasonably true, that
would assist him in his investigation. The second defendant prepared
a statement based entirely on the information he had obtained from
Rooinasie. According to that information, four persons were involved.
Rooinasie identified two of them by name, i.e. the first and second
plaintiffs, and a third whom he said he could identify if he saw him.
The fourth suspect was unknown to Rooinasie; but Rooinasie said he
knew where they all resided in Aroams.

[6]
Following upon the information so received and which he reasonably
believed to be true, as aforesaid, the second defendant proceeded to
Aroams where Rooinasie pointed out to the second defendant the
residences of the plaintiffs; the fourth suspect was not at home.
Between the night of 6 June 2001 and early morning of 7 June 2001, as
aforesaid, the second defendant arrested the plaintiffs at Aroams.
Mr. Kasuto, counsel for the plaintiffs, sought to take issue with the
fact that Rooinasie could not have pointed out the plaintiffs to the
second defendant because according to Mr. Kasuto the plaintiffs did
not see any such pointing out. This submission cannot take the
plaintiffs' case anywhere further than where it is. For security
reasons, Rooinasie was made to wear a balaclava at the material time
to conceal his identity. I accept, as the second defendant testified,
that this is standard police practice designed to protect persons who
give such information to the

Police
in an ongoing police investigation. It is my view therefore that the
police practice in
casu does
not detract from the factual finding I have made that it was upon
information received from Rooinasie that the second defendant
proceeded not only to Aromas but also to the residence of each of
plaintiff at Aroams; the fourth person was not at home, as I have
already said.

[7]
Mr. Kasuto sought strenuously and with great zeal to impugn the
admissibility of the information by Rooinasie on the basis that it
constituted hearsay evidence. Mr. Kasuto is palpably wrong. It is
trite law that evidence is hearsay and inadmissible when the object
of the evidence is to establish the truth of what is contained in the
statement. 'It is not hearsay and is admissible when it is proposed
to establish by evidence, not the truth of the statement, but the
fact that it was made' (Subramaniam
Public Prosecutor [1956]
1 WLR 965 (Privy Council) at 969, approved by the Supreme Court of
Canada in R
v Abbey (1982)
138 DLR (3d) 202) In the instant case, I accept as credible the
second defendant's testimony that he reasonably suspected that a
crime had been committed upon information he had received from the
fourth defendant. On that basis, I will add that under those
circumstances as a police official the second defendant had a duty to
investigate the commission of the crime. By a parity of reasoning, I
accept the second defendant's testimony that based on the information
he had received from Rooinasie he reasonably suspected that the
plaintiffs had committed the offence of stock theft of the fourth
defendant's 45 head of cattle; hence his arresting plaintiffs.

[8]
Thus, from the aforegoing, I find that the second defendant arrested
the plaintiffs because he reasonably suspected them of having
committed a Schedule 1 offence, to wit, theft of stock. In this
regard it must be remembered that the word 'reasonable' and its
derivations like 'reasonably' have in law the prima facie meaning of
reasonableness in regard to those existing circumstances of which the
actor, called upon to act reasonably, knows or ought to know. (Re
Solicitor [1945]
1 All ER 445 (Court of Appeal)) It follows that on the facts and in
the circumstances of the instant case, I find that that the second
defendant reasonably suspected the plaintiffs to have committed the
offence of stock theft of the fourth defendant's 45 head of cattle
cannot be faulted. Additionally, I find that the second defendant
informed each plaintiff in a language he understood the ground for
arresting him in fulfillment of the requirement in Article 11 (2) of
the Namibian Constitution. Consequently, I hold that the arrest of
each plaintiff is lawful.

[9]
What about the detention? After he had arrested the plaintiffs at
Aroams with assistance of the fifth defendant, as treated infra,
the
second defendant, with the assistance of the fourth defendant in the
form of providing private transport to the Police, transported the
plaintiffs to the Farm Masinde where the second defendant questioned
the plaintiffs before taking the plaintiffs to Gobabis Police
Station. I accept as plausible and reasonable the second defendant's
explanation that the Police made use of private transport because
there was at the material time a scarcity of Police motor vehicles. I
do not see anything unreasonable or unfair or wrong in that. I also
accept as reasonable and plausible the second defendant's explanation
as to why he decided to take the plaintiffs to

Farm
Masinde to question the plaintiffs there instead of taking them
straight away to the Gobabis Police station from Aroams. The second
defendant's explanation is, verbatim
et literatim, that
-

.. at that stage
we believed that, we will get some more information from the suspects
when we are questioning them for location of the stolen cattle and it
is very convenient to move to this Masinde. It is very close to
Aroams and it was having facilities which we can use. And if we
receive any information about the whereabouts of the cattle we can
operate from there, to try and get the cattle.'

I
do not find anything untoward and sinister in what the Police did. In
the end the plaintiffs were detained at the Gobabis Police station.

[10]
I pass to consider the claim that the fifth defendant assisted in the
arrest of the plaintiffs and therefore he is liable. I fail to see
how the assistance given to the second defendant by the fifth
defendant, at the request of the second defendant, in arresting the
plaintiffs constitutes delictual liability on the part of the fifth
defendant, as Mr. Kasuto argued. In terms of s. 47 of the CPA every
private adult male of an age not below 16 years and not exceeding 60
years is obliged by law, when called upon to do so by a police
official, to assist such police official in not only arresting a
person but also in detaining a person so arrested; and such adult
male fails to so assist a police official at the pain of penal
sanctions, unless the adult male shows sufficient cause for failing
to render such assistance. The evidence is sufficient that the second
defendant asked the fifth defendant for such assistance and the fifth
defendant obliged as he was under a statutory duty, as I said
previously, to so do. Accordingly,

I
come to the inevitable conclusion that Mr. Kasuto's argument on the
claim is without any merit whatsoever.

[11]
For all the aforegoing, I hold that the second respondent has
discharged the onus cast on him to show that the arrest and detention
of the plaintiffs are lawful. Consequently, the claims of unlawful
arrest and detention of all plaintiffs fail.

[12]
I now proceed to deal with the plaintiffs' claim for malicious
prosecution. In virtue of the rule in Hollington
v F Hewthorn and Co Ltd [1943]
2 All ER 35 (Court of Appeal) and Land
Securities plc v Westminster
City
Council [1993]
4 All ER 124 (Chancery Division, both cited with approval by this
Court in Martha
Cecilia Van Wyk v Tshoopala Martin Ambata Case
No. I 1769/2004 (Unreported), any evidence adduced in the plaintiffs'
criminal trial as proof of certain facts tending to establish the
liability of the defendants in the present civil proceedings is
irrelevant. The only aspect of the said criminal trial that has
relevance in the present proceedings is whether there has been a
termination of the criminal trial in relation to the claim of
malicious prosecution (i.e. element (d) in the lettering presentation
in the next paragraph).

[13]
As respects the claim of malicious prosecution, each plaintiff must
according to Akuake
v Jansen van Rensburg 2009
(1) NR 403, per
Damaseb
JP, prove in relation to him that -

'(i) that the
defendant actually instigated or instituted the

criminal
proceedings; (ii) without reasonable and probable cause; and that

(iii)
it
was actuated by an indirect or improper motive (malice); and

(iv)
that
the proceedings were terminated in his favour; and that

(v)
he
suffered loss and damage. '

Relying
on the authorities Damaseb JP stated at 404H:

'. it is trite
that the mere placing of information or facts before the police, as a
result of which proceedings are instituted, is insufficient to found
liability for malicious prosecution.'

Damaseb
JP went on to cite with approval at 405B Madnitsky
v Rosenberg

1949
1 PH J5 to the effect that, on the other hand,

When an informer
makes a statement to the police which is wilfully false in a material
particular, but for which false information no prosecution would have
been undertaken, such an informer "instigates"
prosecution.'

[14]
I respectfully apply the law as proposed by Damaseb JP in Akuake
v Jansen van Rensburg supra;
it is good law, and so I adopt the elements set out therein ('the
Akuake
elements').
It follows that in order to succeed, the plaintiff must prove all the
above-mentioned elements; that is to say, all the elements must exist
together. The facts as I have found them to exist in
casu are
that in October 2001 the stock theft charge was temporarily withdrawn
by the public prosecutor against the plaintiffs. Subsequent to that,
in 2002, the plaintiffs were served with criminal summons to reappear
for trial on the selfsame stock theft charge. In 2003 after the
fourth defendant and Rooinasie had testified the plaintiffs were
discharged in terms of s. 174 of the CPA. I shall return to this
event in due course.

[15]
In the instant case, I have no doubt in my mind that from the
evidence, it is clear that the fourth defendant merely placed
information before Namibia Police. When he did that he had no idea
who the thief or thieves were. This view is buttressed in no small
measure by the fact that the fourth defendant, by word of mouth and
in Exh. XX (the 21 July 2001 issue of the Windhoek
Observer newspaper)
offered a reward to anyone who would give information that would lead
not
only to the arrest and conviction of
the person or persons who had stolen his cattle but
also to the recovery of
his 45 head of cattle. (Italicized for emphasis) There is nothing
malicious about a member of the public who has suffered a huge loss
of his property at the hands of thieves - as was the situation of the
fourth defendant - to place information of the fact of the theft with
the Police and also offer a reward for information that in his or her
view -which I find to be good and bona fide - would assist the Police
in their investigation and, above all, would lead to the recovery of
the lost item. Upon the authorities, I conclude that in the instant
case the mere placing of information before the police as a result of
which proceedings were instituted is insufficient to found liability
for malicious prosecution.

[16]
It was the plaintiffs' averment - indeed, a major plank the
plaintiffs' case, as argued with great verve by Mr Kasuto - that the
trial of the plaintiffs on the selfsame stock theft charge that
resumed in 2003, after its temporary withdrawal in October 2001, was
as a result of the fourth's defendant's 'insistence'; and so,
therefore, according to the plaintiffs, the fourth defendant is
liable. It behoves me to subject the consideration of the plaintiffs'
averment to the interpretation and application of Article 88 of the
Namibian Constitution in terms of which in the exercise of the power
as to whether to prosecute or not to prosecute in any individual
case, the Prosecutor-General is not subject to the control of any
other person or authority (Ex
parte A-G, In re Constitutional Relationship 1998
NR 282 (SC)). Having done that, I hold that the plaintiffs'
contention is groundless.

[17]
It follows from the aforegoing reasoning and conclusions that the
fourth defendant's conduct was not actuated by an indirect or
improper motive (malice). The fourth defendant's reasonable and
probable cause in placing the information before the police is that
he had suffered a terrible loss, at the hands of unknown thief or
thieves, of his property, the right to which is guaranteed to him by
Article 16 of the Namibian Constitution. His conduct was good and
bona fide and lawful; and so it cannot attract liability for
malicious prosecution. I therefore I hold that the plaintiffs have
failed to sustain the claim of malicious prosecution; and so this
claim also fails.

[18]
I now proceed to consider the claim of assault which is laid by the
third plaintiff only. Under this claim, the Court is faced with two
mutually destructive versions on either side of the suit. That being
the case I must follow the approach that has been beaten by the
authorities in dealing with such eventuality; that is to say, the
proper approach is for the Court to apply its mind not only to the
merits an demerits of the two mutually destructive versions but also
their probabilities and it is only after so applying its mind that
the Court would be justified in reaching the conclusions as to which
opinion to accept and which to reject. (See Harold
Schmidt t/a Prestige Home Innovations v Heita 2006
(2) NR 555 at

559D.)
Additionally, from the authorities it also emerges that where the
onus rests on the plaintiff and there are two mutually destructive
versions, as aforesaid, the plaintiff can only succeed if the
plaintiff satisfied the Court on a preponderance of probabilities
that the plaintiff's version is true and accurate and therefore
acceptable, and that the version on the opposite side is false or
mistaken and should, therefore, be rejected. (See National
Employers' General Insurance Co. Ltd v Jagers 1984
(4) SA 437 (E); Stellenbosch
Farmers' Winery Group Ltd and another v Martell et Cie and Others
2003
(1) SA 11 (SCA); Shakusheka
and Another

v
Minister of Home Affairs 2009
(2) NR 524; U
v Minister of Education, Sports and Culture 2006
(1) NR 168.) Jones J put it succinctly this way in Mabona
and Another v Minister of Law and Order and Others 1988
(2) SA

654
(SE) at 662 C-F:

The
upshot is that I am faced with two conflicting versions, only one of
which can be correct. The onus
is
on each plaintiff to prove on a preponderance of probability that her
version is the truth. This onus
is
discharged if the plaintiff can show by credible evidence that her
version is the more probable and acceptable version. The credibility
of the witnesses and the probability or improbability of what they
say should not be regarded as separate enquiries to be considered
piecemeal. They are part of a single investigation into the
acceptability or otherwise of a plaintiff's version, an investigation
where questions of demeanour and impression are measure against the
content of a witness's evidence, where the importance of any
discrepancies or contradictions are assessed and where a particular
story is tested against facts which cannot be disputed and against
the inherent probabilities, so that at the end of the day one can say
with conviction that one version is more probable and should be
accepted, and that therefore the other version is false and may be
rejected with safety (National
Employers' General Insurance Co Ltd v Jagers 1984
(4) SA 437 (E)).'

That
is the manner in which I approach the determination of the third
plaintiff's claim of assault.

[19]
In his particulars of claim, the third plaintiff alleges that on 7
June 2001 at Farm Masinde the second defendant hit him with his right
fist twice on his face and head, knocking him down more than once and
also burned him with a prodder. The third plaintiff alleges further
that the fifth defendant kicked him and threw him into a reservoir,
full of water, and also burned him with a prodder. The second
defendant and the fifth defendant deny that they assaulted the third
defendant.

[20]
I have carefully subjected the evidence on the claim of assault to
the sort of scrutiny referred to above in the authorities cited
previously. At the outset I must say that I find from the demeanour
of the second defendant and the fifth defendant that they created a
very good impression. They did not equivocate or prevaricate: they
gave their answers to questions readily and without mental reserve in
an attempt to hide the truth. The same cannot be said for the third
plaintiff and indeed the first plaintiff who testified on behalf of
the third plaintiff. For instance, the third plaintiff gave an
improbable account of how he alleges the fifth defendant pulled him
and carried him away and mounted some structure of steps while he
carried the third plaintiff and threw the third plaintiff into a
reservoir that was full of water. What is even more improbable is the
way the third plaintiff described how the fifth defendant pushed the
third plaintiff's head under the reservoir's water - not once, but
several times - until after some time later when the fifth defendant
pulled him out of the water and the fifth defendant, while he carried
the third plaintiff, descended the steps from the rim of the concrete
structure of the reservoir. The third plaintiff does not say whether
he struggled to free himself from the fifth defendant when the fifth
defendant carried him up and down the steps of the reservoir.

[21]
There is also no credible evidence that the fourth defendant burnt
the third plaintiff with a prodder. It is also improbable that the
second defendant gave the third plaintiff a blow with his fist on the
third plaintiff's left eye, felling the third plaintiff. There is no
evidence aliuende
from,
for instance, physical injuries or a medical report to support the
third plaintiff's version. In this regard, I find that the medical
report that was produced cannot assist the Court. The report simply
refers to 'a redness of the right eyeball' of the third plaintiff;
there is no mention of any other aspect, e.g. the medical cause of
the 'redness'. On the contrary, the third defendant (the
investigating officer) and Mr. T. Maherero (of the Gobabis Police
Station) who took down a warning statement of the third plaintiff on
7 June 2001 did not observe any injuries on the third plaintiff. Mr.
Maherero was not cross-examined on his testimony, and so his evidence
remained unchallenged at the close of the defendants' case.
Furthermore, Sgt Tuhadaleni, who was the charge office sergeant on
duty on 7 June 2001 when the third plaintiff was brought to the
Gobabis Police Station, observed no injuries on the third plaintiff.
A
fortiori, Sgt
Tuhadaleni questioned all the three plaintiffs to ascertain from them
if they had any complaints which she would have noted in the Charge
Office Occurrence Book. The third plaintiff did not report any
injuries or any other complaints to her.

[22]
It is only the second plaintiff who testified that he saw the third
plaintiff being assaulted with a fist at Farm Masinde. That is highly
improbable; he does not say with any conviction how he could see that
since he was not in the room where the second defendant interviewed
the third plaintiff. His evidence is too improbable and it will be
unsafe to rely on it, particularly if the second plaintiff's
testimony is viewed against the third plaintiff's changing-the-post
versions of the alleged assault. In the third plaintiff's statement
to the police on 7 June 2001, around the day of the alleged assault,
the third plaintiff does not state that he was assaulted at Aroams.
And at Farm Masinde; the third plaintiff says that he was beaten
several times with fists on his chest and stomach. Furthermore,
having weighed the second plaintiff's evidence against the
unassailable and credible evidence of police officials Maherero and
Tuhadaleni, I feel confident to reject as false the second
plaintiff's evidence on the point.

[23]
Thus, having applied my mind not only to the merits and demerits of
the two mutually destructive versions respecting the claim of
assault, and furthermore having taken into account the credibility of
the witnesses and the probability or improbability of what they say,
I find that the version of the defence witnesses is more probable and
so I accept it and the version of the plaintiff witnesses is false
and so I reject it. It follows that in my judgment; I find that the
third plaintiff has failed to discharge the onus of proving that the
third plaintiff's version is the truth. Consequently, I hold that the
third plaintiff's claim of assault fails.

[24]
On the issue of costs, it was Mr. Van Vuuren's submission that the
plaintiffs' claim should be dismissed with costs on the scale as
between attorney and client. It would appear Mr Kasuto simply prayed
for costs. As respects Mr Van Vuuren's submission; I do not think the
conduct of the plaintiffs did reach the mark set by the authorities,
albeit it is my opinion that the plaintiffs were misguided in
instituting this action. In Willem
Adrian van Rhyn NO v Namibia Motor Sports Federation and Others Case
No. A 36/2006 (Unreported) at pp. 21-2, I cited with approval the
principle of law that was applied in South
African Bureau of Standards v GGS/AU (Pty) Ltd 2003
(6) SA 588 (T) where the respondents had applied for costs on a scale
as between attorney and client. There, at 592B-D, Patel J had the
following to say concerning the Court's discretion to award costs on
the scale as between attorney and client:

'Clearly
there must be grounds for the exercise of the Court's discretion to
award costs on an attorney and client scale. Some of the factors
which have been held to warrant such an order of costs are: that
unnecessary litigation shows total disregard for the opponent's
rights (Ebrahim
v Excelsior Shopfitters and Furnishers (Pty) Ltd (II) 1046
TPD 226 at 236); that the opponent has been put into unnecessary
trouble and expense by the initiation of an abortive application (In
re Alluvial Creek Ltd 1929
CPD 532 at 535);

Mahomed
Adam (Pty) Ltd v Barren 1958
(4) SA 507 (T) at 509B-C;

Lemore
v African Mutual Credit Association and another 1961
(1) SA 195 (C) at 199; Floridar
Construction Co (SWA) (Pty) Ltd v Kries (supra at
878); ABSA
Bank Ltd (Voklskas Bank Division) v SJ Due

Toit
& Sons Earthmovers (Pty) Ltd 1995
(3) SA 265 (C) at 268D-E);

that
the application is foredoomed to failure since it is fatally
defective (Bodemer
v Hechter (supra at
245D-F)); or that the litigant's conduct is objectionable,
unreasonable, unjustifiable or oppressive.'

[25]
In the result I make the following orders:

1. 
   The
   first plaintiff's claim is dismissed with costs on the party and
   party scale; such costs to include costs occasioned by the
   employment of two instructing counsel and one instructed counsel.

   
   

2. 
   The
   second plaintiff's claim is dismissed with costs on the party and
   party scale; such costs to include costs occasioned by the
   employment of two instructing counsel and one instructed counsel.

   
   

3. 
   The
   third plaintiff's claim is dismissed with costs on the party and
   party scale; such costs to include costs occasioned by the
   employment of two instructing counsel and one instructed counsel.

   
   

PARKER
J

COUNSEL
ON BEHALF OF THE PLAINTIFFS: Adv
E K Kasuto

Instructed
by: E
K Kasuto Legal Practitioners

COUNSEL
ON BEHALF OF THE DEFENDANTS: Adv.
A Van Vuuren

Instructed
by:

The
Government Attorney;

Dr
Weder, Kauta & Hoveka Inc.