Court name
High Court
Case number
306 of 2011
Title

Council of Itireleng Village Community v Madi and Others (306 of 2011) [2012] NAHC 195 (17 July 2012);

Media neutral citation
[2012] NAHC 195
Coram
Parker J





CASE NO







Unreportable’








CASE NO.: A 306/2011








IN THE HIGH COURT OF
NAMIBIA













In the matter between:













COUNCIL OF ITIRELENG
VILLAGE COMMUNITY …..................................Applicant



(COMPRISING THE
MEMBERS LISTED PER



ANNEXURE ABM3)








and








FELIX MADI
…......................................................................................1st
Respondent



TSHABANG MAKGONE
….................................................................2nd
Respondent



ANNA MOKALENG
…..........................................................................3rd
Respondent



EUPHAROSINE MBUENDE
….............................................................4th
Respondent



BERHARD MOKALENG
…..................................................................5th
Respondent



REINHARTH MORWE
…......................................................................6th
Respondent



VICTUS EDWARD
…............................................................................7th
Respondent



AUGUSTINUS MOKALENG
…............................................................8th
Respondent



GENVEFA MOKALENG
…...................................................................9th
Respondent



JASPER MADI
…...............................................................................10th
Respondent



MICHAEL KAPENG
….......................................................................11th
Respondent



OSWALD TIBINYANE
…....................................................................12th
Respondent



LAZARUS SEBETWANA
…...............................................................13th
Respondent



ARNOLD MORWE
…..........................................................................14th
Respondent



ALEXIUS UDIGENG
….......................................................................15th
Respondent



BERLINDIS UDIGENG
…...................................................................16th
Respondent



RILEU KENE
…..................................................................................17th
Respondent








CORAM:
PARKER J








Heard on: (2012 April 12)



Delivered on: 2012 July
17



_________________________________________________________________








JUDGMENT



_________________________________________________________________


PARKER
J
: [1] The applicant launched an urgent application on ex
parte
basis and obtained a rule nisi. The rule nisi
was, for one reason or another, not served on all the respondents. In
any case, opposing papers were filed, and the applicant filed
replying papers. In the course of events, by consent of the parties
the rule nisi was discharged on account of the fact that the
event sought to be interdicted had already taken place. The only
issue which the parties have called on the Court to determine in the
present proceeding is, therefore, which party should bear the wasted
costs of the urgent application; that is, the applicant or the
respondents.






[2]
As I have found previously, the rule nisi was discharged by
consent of the parties. It is, therefore, of no moment in the present
proceeding as to who capitulated. What is relevant for my present
purposes is the only point that by consent of the parties the rule
nisi has been discharged. It follows that any submission
bearing on the merits of the case is really of no assistance on the
issue under consideration, namely, costs.






[3]
Relying on the authorities, the Court stated in Central
Maintenance Close Corporation v Council for the Municipality of
Windhoek
Case No. I 3671/2007 (Judgment delivered on 2 December
2011) (Unreported) that where a litigant withdraws an action or in
effect withdraws it, every sound reason must exist why a defendant or
respondent should not be entitled to his or her costs. The plaintiff
or applicant who withdraws his action or application is in the same
position as an unsuccessful litigant because, after all, his or her
claim or application is futile and the defendant or respondent is
entitled to all costs associated with the withdrawing of the
plaintiff’s or applicant’s institution of proceedings. In
the instant proceeding, the applicant has not withdrawn the
application and so he is not in the same boat as an unsuccessful
litigant.






[4]
In Channel Life Namibia Limited v Finance in Education (Pty) Ltd
2004 NR 125 the Court held that where a court is called upon to
adjudicate only upon the question of costs, there should not be a
hard-and-fast rule whether it would be necessary for the Court to
consider the merits of the case: each case must be treated on its own
facts. In some cases it would be necessary to consider the merits; in
other cases it would not be necessary to do so. On the facts and in
the circumstances of the present proceeding, it is absolutely
unnecessary to consider the merits.






[5]
In Morris v Government of the Namibia 2001 NR 51 the Court
held that since it was the applicants who had been at fault in not
continuing with the action instituted by them (qua plaintiffs)
against the respondents (qua defendants) who in their turn had
incurred legal expenses, the respondents were entitled, depending on
how far the abortive proceedings had progressed, to set the matter
down for costs. In the instant proceeding, it cannot be said on any
account that the applicant is at fault for the proceeding respecting
the confirmation of the rule nisi not continuing. Proceeding
was discontinued upon the parties consenting to the discharge of the
rule nisi.






[6]
It is trite law that costs follow the result unless exceptional
circumstances exist. In the present proceeding, the result is that by
consent of the parties the rule nisi was discharged. It
follows inexorably and reasonable that no party is entitled to wasted
costs: each party should pay its own costs. In the result, I make the
following order:







There is no order as to
costs.


















__________________



PARKER J















COUNSEL ON BEHALF OF
THE APPLICANT:



Mr T Chibwana








Instructed by: Government
Attorney


















COUNSEL ON BEHALF OF
THE RESPONDENTS:



Adv. P C I Barnard








Instructed by: Dr Weder,
Kauta & Hoveka Inc.