REPORTABLE

CASE NO: SA 51/2018

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

Coram:          DAMASEB DCJ, MAINGA JA and ANGULA AJA

Heard:           15 June 2020

Delivered:     6 July 2020

APPEAL JUDGMENT

DAMASEB DCJ (MAINGA JA and ANGULA AJA concurring):

Background

[1]        This is an appeal against a judgment and order of the High Court handed down on 7 September 2018.[1] On application made in terms of rule 60(1)(b)[2] of the Rules of the High Court by the plaintiff, Ultimate Safaris (Pty) Ltd (the respondent), the High Court granted summary judgment against the defendant, Mr Jim Gariseb (the appellant), in the following terms:

‘1.   Payment in the amount of N$171 186,44.

2.    Payment in the amount of U$5 436,26 or the Namibian Dollar equivalent thereof.

3.    Interest on the aforesaid amounts at the rate of 20% per annum a tempore morae to date of final payment.

4.    Costs of suit.

5.    The matter is removed from the roll and regarded finalized.’

[2]        The High Court’s judgment at para [3] reads:

‘I am satisfied that the application for summary judgment meets the requirements set out in rule 60(2) (a) and (b).’

In context, one must assume that the learned judge had in mind rule 60(1)(b).

[3]        In his affidavit in opposition to the summary judgment application, the appellant made it clear that the respondent’s claim was not for ‘a liquidated amount in money’ as contemplated by rule 60(1)(b).

[4]        It is now common cause that the respondent’s claim, as elaborated in the particulars of claim, arose from damage to a vehicle allegedly negligently caused by the appellant, an employee of the respondent.

[5]        Dissatisfied with the High Court’s judgment and order, the appellant noted an appeal to this court, pertinently raising the issue that since the respondent’s claim as formulated was not for a liquidated amount in money, it was incompetent for the High Court to grant summary judgment. The grounds of appeal, amongst others, state that:

(a)       The learned judge misdirected himself, alternatively erred in law and/or fact in finding that the appellant has not disclosed a bona fide defence or a triable issue.

(b)       The learned judge misdirected himself, erred in law and/or fact in finding that the application for summary judgment met the requirements of rule 60(2)(a) and (b) of the High Court Rules.

(c)        The learned judge erred in law and/or fact in finding that there was no basis upon which summary judgment can be refused.

[6]        That the learned judge a quo misdirected himself in granting summary judgment on the claim as conceived is now conceded by the respondent which has since abandoned it.[3] The notice of abandonment reads:

‘[T]he plaintiff hereby abandons the summary judgment in whole granted in its favour on 7 September 2018 against the defendant and consents that costs falls to be determined in the main action.’

Costs were therefore not tendered. More about that later.

[7]        In our practice, a claim for patrimonial loss arising from the repair of a vehicle on account of negligent conduct by a defendant does not meet the test of ‘liquidated amount in money’ within the meaning of rule 60(1)(b). That, according to an academic source, is, correctly in my view, because the plaintiff cannot ‘personally verify the amount claimed, but relies instead on the knowledge of a third party for the correctness of both the quantum and the liquidity thereof.’[4] In Commercial Bank of Namibia Ltd v Trans Continental Trading (Namibia) & others,[5] Hannah AJ approved the test adopted by Howard J in Leymac Distributors Ltd v Hoosen & another[6] as to when a claim sounding in money is ‘liquidated’ within the meaning of rule 32(1)(b).[7] The test is that ‘a claim cannot be regarded as one for “a liquidated amount in money” unless it is based on an obligation to pay an agreed sum of money or is so expressed that the ascertainment of the amount is a mere matter of calculation’.[8] That approach was also adopted by Masuku J in Nored Electricity (Pty) Ltd v Ouster.[9] Counsel for the respondent also cited to us cases from Botswana to similar effect.[10]

[8]        I have set out the case law to show that the jurisprudence on summary judgment as concerns a liquidated claim is fairly well settled and ought to have been cited to the learned judge a quo but was not - resulting in the misdirection which is now common cause. The respondent’s counsel’s duty to cite what clearly was authority which is against their cause was accentuated by the fact that, as is common cause and for reasons that are unnecessary to discuss now,[11] the appellant’s counsel was not present when the application for summary judgment was adjudicated in the court below.

[9]        There are four issues before this court for decision:

(a)     Whether the appellant should be granted condonation and reinstatement of the appeal which had lapsed on account of his heads of argument being filed two days late?

(b)     Whether the appeal has become moot, because the order of the High Court granting summary judgment has since been abandoned?

(c)     If the appeal is not moot and is allowed, what should be the proper order as to costs were this court is to remit the matter to the High Court?

(d)     The appropriate costs order in the appeal.

I will deal with the first issue last.

Findings of the court a quo

[10]     In his written reasons the learned judge a quo makes no mention of the appellant’s assertion in the affidavit opposing summary judgment that the respondent’s claim was illiquid as opposed to ‘a liquidated amount in money’. The learned judge, however, was ‘satisfied that the application for summary judgment meets the requirements set out in rule 60(2)(a) and (b)’. That was, according to the judge a quo, after he had ‘read the papers as filed by both parties and have listened to oral arguments presented by counsel for the plaintiff’.

[11]     The written submissions by the respondent’s counsel upon the adjudication of the summary judgment application have, I suspect because of non-appreciation of the correct position, found their way into the appeal record.[12] From those written submissions, it is apparent that the respondent’s counsel did not cite any authority to the learned judge suggesting that the claim, as formulated, could be illiquid. Counsel certainly did not cite any of the High Court cases that I referred to in paragraph [7] above. Those cases were binding on the judge a quo and had to be followed unless distinguished or considered to be clearly wrong. It is therefore no surprise that the learned judge a quo did not consider authority which could have led to a contrary result.

[12]     Counsel’s duty is clear in our practice – a duty which assumes even greater significance where the opponent is not present by counsel. Counsel has a duty both to the client and the court. The latter duty compels him to cite to the court all authorities that are relevant to the dispute - both those that favour his client and those that favour the opponent.[13] In the present case, counsel failed in his duty to the court, resulting in an erroneous judgment being entered against the appellant. Anyone who takes the trouble to monitor the daily rolls published by the Registrar of the High Court on e-justice will notice that judges in the action stream on average manage not less than 200 cases and that the volume of interlocutory activity is frightfully high. Legal practitioners must therefore offer assistance to the managing judges by citing all relevant authorities. In the present case the failure to do so has resulted in costs being unnecessarily incurred and finalisation of the matter being unduly prolonged.

Is the appeal moot?

[13]     The respondent’s initial posture even at the hearing of the appeal was that the abandonment of the judgment had rendered the appeal unnecessary. That stance has since been abandoned in light of the submission, correctly made by Mr Muluti for the appellant and now accepted by Mr Ravenscroft-Jones for the respondent in written supplementary submissions filed after the hearing and at the invitation of this court, that abandonment of judgment is a unilateral act which does not extinguish the judgment. The judgment stands and remains valid until set aside.[14] In view of the respondent’s concession that the summary judgment was incorrectly granted, it follows that the appellant had no choice but to have it set aside by way of appeal.

What should be the proper costs order?

[14]     It was suggested on appeal on behalf of the respondent that this court even if it sets aside the High Court’s judgment, must remit the matter back to the High Court which then must decide on the issue of costs as that is a matter properly for the discretion of the first instance court when considering summary judgment under rule 60(1)(b), read with rule 60(11)(a). Again, that approach is wrong as correctly submitted by Mr Muluti for the appellant. The correct position is that the High Court had become functus officio after it made the incorrect order for summary judgment. Summary judgment is therefore no longer a live issue before the High Court as that court cannot revisit it. It is this court alone that has jurisdiction to consider the question of costs consequent upon the setting aside of the High Court’s order.

[15]     Because the application for summary judgment was unmeritorious as contemplated by rule 60(11)(a ), the appellant seeks a special costs order on the scale as between attorney and own client and a further order that the respondent’s action be stayed until the costs have been paid in full. Rule 60(11) empowers the court considering summary judgment to grant such an order. It states:

‘The court may at the hearing of an application for summary judgment make any order as to costs as the court considers just, but if the plaintiff makes an application under this rule where the –

(a)     case is not within the terms of subrule (1) . . .

. . .

the court may order that the action be stayed until the plaintiff has paid the defendant’s costs and may further order that such costs be taxed on a scale as between legal practitioner and client.’

[16]     Legal practitioner and client costs are permissible where costs on ordinary scale would not constitute sufficient recompense for the expense to which the innocent party has been put.[15] I have demonstrated not only that the application for summary judgment was unmeritorious as a matter of law, but that in all probability, it could have been avoided had binding authority pointing in the opposite direction been cited to the judge a quo. That has resulted in unnecessary costs being incurred by the appellant in approaching this court to have the judgment set aside, all through no fault of the appellant.

[17]     I am satisfied that this is a proper case where the court below should not only have refused the application for summary judgment but to grant a special costs order as contemplated under rule 60(11)(a). It bears mention that the respondent even opted not to tender the appellant’s costs in the notice to abandon judgment ‘and consents that costs falls to be determined in the main action’. It is not altogether clear to me what that means but what is abundantly clear is that the appellant was expected to revert to the High Court to have his entitlement to costs determined, not on the basis of the unmeritorious application for summary judgment, but on the outcome of the main action. That is not a path that leads to justice because he was entitled to defend the action on the merits at a full trial.

Condonation and reinstatement

[18]     The present appeal was set down for hearing on 15 June 2020 and the appellant’s heads of argument were filed on 15 May 2020. Mr Muluti conceded, as he had to, that those heads were filed 19 days before the appeal. He initially argued that the rule states that heads of argument must be filed ‘not more’ than 21 days before the appeal. In other words, the closer to the date of appeal the better and the farther from the date of appeal the more unacceptable it is. Counsel saw the folly of the submission when Mr Ravenscroft-Jones for the respondent drew his attention to this court’s judgment in Metropolitan Bank of Zimbabwe Ltd & another v Bank of Namibia.[16] In that case, Smuts JA observed as follows at para [11]:

‘Although there is an unfortunate lapse in the wording of rule 17(1) of the rules of this court - by providing that heads of argument are to be filed ‘not more than 21 days before the hearing’ instead of ‘not later than 21 days’, the intention of the rule giver is clearly the latter meaning in the context of the wording of rule 17(1) construed as a whole and in view of the wording of the former rule 11 of the repealed rules of this court. This is also how the rule is understood by practitioners and applied by this court, namely that heads of argument of an appellant must be filed no later than 21 days before the date of hearing and that a respondent’s heads are to be filed no later than 10 days before the hearing.’

[19]     Albeit grudgingly, Mr Muluti accepted that the appellant’s heads of argument were filed two days late. He accordingly sought condonation from the bar and to have the appeal reinstated because of the very good prospects of success and to ensure that a wrong precedent is not allowed to stand. For all of the reasons I have hitherto given and the fact that there was no prejudice visited upon the respondent nor inconvenience caused to the court, this is a proper case to grant such an application even if sought from the bar.[17] I would accordingly condone the late filing of the respondent’s heads of argument and reinstate the appeal.

[20]     As regards the costs in the appeal, the fact that the respondent throughout opposed the appeal when it was clearly untenable to do so and only made concessions very late, entitles the appellant to costs on a punitive scale.  

[21]     Because the learned judge made adverse findings on the merits of the appellant’s defence, it will be inappropriate that the matter serve before the same judge upon it being referred back.

[22]     In the result it is ordered that:

(a)     The application for the late filing of the appellant’s heads of argument is condoned;

(b)     The lapsed appeal is reinstated;

(c)     The appeal succeeds and the judgment and order of the High Court are set aside and replaced with the following order:

‘(i)      The application for summary judgment is refused.

(ii)      Costs are awarded to the respondent on the scale as between legal practitioner and client, up to and including the stage where the matter was set down for argument of the summary judgment application.

(iii)     The applicant’s action is hereby stayed until all the respondent’s costs resulting from the opposition of the summary judgment are paid.’

(d)     The matter is remitted to the High Court to be placed before a different managing judge for further case management in terms of the High Court Rules.

(e)     The appellant is granted the costs of the appeal on the scale as between legal practitioner and client.

__________________

DAMASEB DCJ

__________________

MAINGA JA

__________________

ANGULA AJA

APPEARANCES

Appellant:                                      P S Muluti

                                                        of Muluti & Partners,

                                                        Windhoek

Respondent:                                 J-P Ravenscroft-Jones

                                                        Instructed by Kӧpplinger Boltman Legal Practitioners,

                                                        Windhoek