KENNETH MORRIS & 1 OTHER vs GOVERNMENT OF NAMIBIA & 10 OTHER

A. 87/2000

Settlement between applicant and first and fourth respondents. Sixth and ninth respondent claiming costs from applicants alternatively the aforesaid respondents. Applicant ordered to pay costs of sixth and ninth respondents while the sixth and ninth respondents to pay costs of first to fourth respondents in respect of application for costs. Question of waiver considered.

	KENNETH MORRIS
FIRST APPLICANT

	BYSEEWAH HUNTING SAFARIS (Pty)Ltd

SECOND APPLICANT

and

	Government OF  NAMIBIA

FIRST RESPONDENT

THE MINISTER OF ENVIRONMENT AND TOURISM

SECOND RESPONDENT

THE DIRECTOR OF RESOURCE MANAGEMENT OF THE SECOND RESPONDENT

THIRD RESPONDENT

THE PERMANENT SECRETARY TO THE SECOND RESPONDENT

FOURTH RESPONDENT

	MR D. MANUSAKIS
FIFTH RESPONDENT

	DR F. REINHARDT
SIXTH RESPONDENT

	MR H.J. PIENAAR
SEVENTH RESPONDENT

	MR. G. UTZ
EIGHTH RESPONDENT

	MR D. REISENHAUER
NINTH RESPONDENT

	MR J.H. BRIEDENHANN
TENTH RESPONDENT

	MR P. NAVARRO
ELEVENTH RESPONDENT

Delivered on:    2000-11-22

JUDGMENT

All respondents of whom there were eleven and which included the sixth and ninth respondents (who are the "virtual applicants" in the present proceedings) were called upon to show cause on 24"' March 2000 why an order should not issue;

"1	
Restraining and/or prohibiting all the respondents from taking any steps, either directly or indirectly consequent upon and/or in implementation of the sale of concession in regard to trophy hunting sold by auction, under the auspices of second respondent, on 9 March 2000, pending the determination of the main application for review.
1.	Directing that the costs of the urgent application be costs in the application for review.
2.	That the relief sought in paragraph 2 above shall serve as an interim interdict pending the final determination of the main application for review."

"1	
2	
3.	The auction held under the auspices of second respondent on 9 March 2000 should not be set aside.
4.	Any agreements entered into between any or all of fifth to eleventh respondents on the one hand and the first and fourth respondents on the other hand, subsequent to the auction being held, not be set aside.

First, second, third and fourth respondents and in the event of any other respondent opposing the application, also such respondent(s), jointly and severally should not be ordered to pay the costs of the application."

In the light of the relief claimed by first and second applicants, they were obliged to join sixth and ninth respondents. Those respondents had a direct and substantial interest in any order the Court might make in those proceedings.

Sixtli and ninth respondents entered appearance to defend and were involved in substantial legal expenses in preparing such defence.

5.	That no order as to costs is made.
6.	
7.	That those Respondents who wish to dispute costs shall agree on a date so that the matters can be heard simultaneously."

It is clear from this that sixth and ninth respondents did not waive or abandon their rights to a claim for costs at that date.

For one reason or another this notice was not pursued and on 14"' September 2000, a fresh notice was issued and served and the same relief was claimed, namely:

This is the matter which has finally been set down for hearing.

Ms A-M Engelbrecht appears for applicant. Mr R Totemeyer appears for first to fourth respondents and Mr C Mouton appears for sixth and ninth respondents.

All the parties filed Heads of Argument.

The Court was informed that the application instituted by applicants had been settled by first to fourth respondents and that neither sixth nor ninth respondents were parties to that settlement. Furthermore neither sixth nor ninth respondents had been paid for the costs which were incurred.

(cf. Rule of Court 42 which provides that a plaintiff/applicant can only withdraw a case where such plaintiff/applicant pays the defendants/respondents costs. In the instant case, of course, the applicants did not withdraw against respondents.)

In the present case, it is the applicants who are at fault in not continuing the action instituted by them against respondents who in their turn have incurred legal expenses. Where this happens, it has been held that the respondents are entitled, depending on how far the abortive proceedings have progressed, to set the matter down for costs, if necessary, by Notice of Motion.

In the light of the aforesaid decisions it is abundantly clear that applicants who brought sixth and ninth respondents to Court and did not proceed for an order against them although they certainly asked for relief against them, (as illustrated above) are obliged to pay the costs of these respondents.
Ms Engelbrecht argues that if that be the case, Mr Mouton both in his heads of argument and in his address to Court waived and abandoned the claim against applicant in favour of first to fourth respondents.

"According to the prevailing practice in our Courts a litigant is bound by the decision of his counsel."

"Once the client has placed his case in the hands of counsel the latter has complete control and it is he who must decide whether a particular witness including the client is to be called or not."

Quite obviously therefore the legal advisers of a litigant can waive and abandon rights of the litigant.

However, a Court does not lightly assume that a party to litigation has waived his right.

There is no express waiver by Mr Mouton of his client's rights. It is true that there is a convoluted argument why first to fourth respondents should be liable for costs but in the notice which brought this matter before Court costs were clearly asked for against applicants in the first instance and only alternatively against those respondents.

'Where	a person seeks to deprive another of the benefit of a right
conferred by law on the ground that the right has been waived or renounced, it lies upon the person relying upon such waiver to prove that there has been some unequivocal act wholly inconsistent with the intention to appeal.'

It is quite clear from his Heads of Argument that the legal advisers of sixth and ninth respondents, (and therefore those respondents themselves) did not know that sixth and ninth respondents had a right against applicants for payment of their costs. They therefore could not have waived their claim as contended by Ms Engelbrecht. In any even t the Heads of Argument are essentially as the document itself suggests "argument" and there is no statement therein which constitutes a waiver. Frequently a lawyer fails to deal in argument with the point in issue. This does not mean that the law adviser, has waived or abandoned such claim.

The Court finds therefore that first and second applicants are liable to pay the costs of sixth and ninth respondents and that Mr Mouton did not waive and abandon his client's rights.

The aforesaid notwithstanding, while applicants were originally obliged to join fourth and sixth respondents in their application, and while fourth and sixth respondents subsequently were

obliged to join applicants, as they were asking for an order of costs against them, they were certainly not obliged to join first to fourth respondents but if they felt obliged to do so, they certainly had no claim against them. Having brought them to court, sixth and ninth respondents are obliged to pay their costs but only such costs are involved in this particular costs application.

The Order of the Court therefore is:
8.	
9.	
10.	

LEVY, AJ

Advocate C Mouton Messrs A Vaatz & Partners

Advocate R Totemeyer Messrs Lorentz & Bone

Advocate A-M Engelebrecht Messrs Theunissen, Louvv & Partners