“SPECIAL INTEREST”
									CASE NO.: I2191/2009
IN THE HIGH COURT OF NAMIBIA
In the matter between:
VINSON HAILULU							PLAINTIFF
and

CORAM:     DAMASEB, JP

JUDGMENT

The genesis of the present stalemate

[6] On the same date the Trade Union defendants also filed an application seeking the stay of the defamation action, alternatively for a postponement thereof. In the alternative to their stay application the Trade Union defendants sought a postponement of the matter on different grounds to those said to justify stay- being an alleged misunderstanding between their instructing and instructed counsel - which, it is said, had the effect that should the trial proceed the Trade Union defendants would be without instructed counsel and therefore be prejudiced in the conduct of their defence of the defamation action.

Background to the stay and postponement applications

[7] The plaintiff in the present defamation action, Mr. Hailulu, has the following pending applications in the High Court arising from the same facts underpinning the defamation action:
1)	A review application under Case No. A 383/2008;
2)	Contempt of Court proceedings against the fourth defendant and the Prosecutor-General;

[10] The third defendant who had not opposed the review application since it was launched had now intimated its desire to do so and had filed a notice to oppose the review application and contemplates filing answering papers in opposition to the relief sought in the review application.

[11] The plaintiff opposes both the stay and the postponement applications. The ACC defendants seek the stay of the defamation action pending the finalization of the review application, but on grounds different to those advanced by the Trade Union defendants.
The attitude of the ACC defendants is that they do not oppose the postponement application sought by the Trade Union defendants.

1)	The decision by the third defendant to join in the opposition to the review will lead to that defendant filing lengthy affidavits to deal with the factual background which will be relevant to the case of the ACC defendants in the defamation action;
2)	The issues raised in the review are substantially the same as those raised in the defamation action and it will require determination of the same issues involving substantially the same questions of law and fact;
3)	A decision vindicating the plaintiff's arrest would fundamentally impact the basis on which the plaintiff's claims of unlawful arrest and malicious prosecution are based.

5)	They did not do anything towards the plaintiff that is per se defamatory and that, to the extent that his causes of action against the ACC defendants are predicated on statutory investigative powers - if such were found to have been lawful -the plaintiff would not have any valid claims in law against them.

The position of the Trade Union defendants

[13] In light of the fact the stay application was abandoned by the Trade Union defendants, it is unnecessary for me to dwell on the evidence advanced by the Trade Union defendants in support thereof, save to sate that the reasons they advance for the stay substantially overlap with those proffered by the ACC defendants.

"1. First and foremost and having discussed the matter with the Government Attorneys who act on behalf of the First and Fourth Defendants, we are both in agreement that this would be the prudent course to follow at this juncture simply because the matter set down on the fixed roll is not really ready for trial. The reasons for this are simply the following: 

(b)	a misunderstanding occurred when it came to the reservation of counsel in that we were under the impression that counsel acting on behalf of the second, third, fifth and sixth defendants was duly reserved for the matter which it recently transpired has not been the case. The predicament our clients find themselves in is that due to time constraints as well as the unavailability of alternative counsel, our clients will have problems in timeously securing the services of alternative counsel to conduct the trial.

[16] The plaintiff was not impressed. The suggestion was rejected outright in a letter sent out the very next day. The plaintiff's legal practitioner of record stated:

to Kaaronda:

"Adv. Albert Strydom acted as counsel for the first, second and fourth applicants and myself. As such, he rendered legal advice to the applicants on an ad hoc basis pertaining to the prosecution of the defence of the defamation action. Adv. Strydom alsopersonally drafted various Court pleadings and other memoranda of advice incidental to the matter in question. As indicated in Adv. Strydom's supporting affidavit hereto, he contemplated and understood that he would also conduct the trial on behalf of the applicants. However, he was unaware at the time that an application had been made to the Registrar of this Honourable Court for the trial to be set down on the fixed roll for the period 1 November to 12 November 2010.There was a misunderstanding by the applicants' legal practitioners of record that Adv. Strydom's secretary had reserved him as such and that he would conduct the trial. In the meantime Adv. Strydom was reserved by Messrs Van der Merwe-Greeff Inc. in another matter which was also set down on the fixed roll in the case of E-Power Consulting and Construction (Pty) Ltd v J B Cooling and Refrigeration and which matter was set down by the Registrar from 25 October 2010 until 5 November 2010. This resulted in an overlap with regard to set down in this matter. The applicants' instructing counsel was unaware of the fact that Adv. Strydom had already been briefed in another matter but called Adv. Strydom approximately 6 weeks ago to enquire from him what his rates would be for the upcoming matter. Adv. Strydom gave him a quote for his fees, but do not think much of it and accepted that he had been duly reserved to conduct the trial.

In conclusion, it is submitted that: The applicants have fully set out the reasons for their non-preparedness and have explained why they are not prepared to proceed with the matter;

The application for postponement has been made timeously, and as soon as it was practically possible after it became clear that the matter would not be settled. I pause to mention that this only became clear on Friday, 29 October 2010 at 15H00 when the applicant's instructing received a letter from the first respondent's legal practitioners''. [My underlining]

Mr. Strydom's version

[19] In relevant part for purposes of this judgment, he states:

[20] Mr. Strydom also confirms that he spoke to several counsel to establish their availability and to replace him as instructed counsel for the Trade Union defendants.

[21] The plaintiff filed answering papers and opposed the relief in respect of both the stay and the postponement applications. I will for present purposes deal only with the evidence in respect of the postponement application except where the reference to the stay was intended by the plaintiff to impact on the postponement application.

2010.

9.      The intended ramifications of this would be twofold:
9.1. Both my legal representatives and I would have to sacrifice time that we intended to spend on preparation for the trial, on issues relating to the two bulky and prolix applications. This would undermine and prejudice the fair presentation of my case to this Honourable Court.
9.2. My answering affidavit could, at best for me and at the earliest, be filed and served at 09h00 on Monday, 1 November 2010, the first day of the scheduled trial. No doubt, the defendants would then seek an opportunity to consider the answering papers and to respond thereto. Thereafter, the application would have to be head and adjudicated upon. This, according to the likely line of thinking by the defendants and their representatives, would cause such a delay in the commencement of the trial that the Honourable Presiding Judge is hoped to become inclined to postpone the proceedings." [My underlining]

[23] Hailulu pertinently takes issue with the following:

[24] As regards the alleged settlement negotiations, Hailulu states that such cannot suspend the duty to prepare for trial and that the particular settlement negotiations in this case- limited in scope as they were- could not have interfered with trial preparations. Hailulu further avers, contrary to Kaaronda's allegation otherwise in the founding affidavit - that, in truth, when regard is had to the totality of the evidence, the Trade Union defendants' unpreparedness for trial is premised on their exclusive reliance on the availability of Adv Strydom.

[26] Hailulu also alleges that to date none of the respondents in the review application filed any opposing papers and had even delayed the filing of the Rule 53 record on spurious grounds. Based on that he alleges that the respondents are engaging in delaying tactics to frustrate the hearing of the review application - and to make the

defamation action dependent on the outcome of the review application would prejudice him. According to Hailulu, an application for the hearing date of the review application would at the earliest be made in June 2011 and that hearing dates thereof can realistically only be after 2012. He states that if made dependent on the outcome of the review, the presentation of his defamation action would suffer severe prejudice.

The stay applications

[28] At the resumed hearing, the ACC defendants on the one hand, and the Trade Union defendants on the other, indicated that in view of the prima facie view expressed by the Court they were abandoning their applications for stay and were tendering costs on the ordinary scale. Mr. Barnard for the plaintiff thereupon urged the Court to impose a punitive costs order in respect of both the abandoned stay applications and the postponement application, essentially because of the very late stage at which both applications were brought. Mr. Barnard characterized these applications as tactical ploys intended to frustrate the plaintiff in the continuation of the trial. He submitted that he was seeking a special costs order on attorney -and - client scale and an order in respect of wasted costs for the trial, against both sets of defendants jointly and severally - the one paying the other to be absolved.

[29] Mr. Geier's attitude, on behalf of the ACC defendants, was that the position of the ACC defendants must be distinguished from that of the Trade Union defendants. He argued forcefully that the sins of the Trade Union defendants must not be visited on the ACC defendants as all his clients had done was to apply for a stay application.

The basis for the Court's prima facie view and its implications

[30] Both sets of defendants abandoned the stay application once it became known to them what the Court's prima facie view on the matter was. They were entitled to file replying papers, advance full argument and to receive the Court's considered judgment. They forwent that right in view of the Court's prima facie view. Significantly, they tendered the costs of the abandoned stay application. It is important for me to disclose what influenced my prima facie view : I took a dim view of the stay application because of its timing - brought as it was literally on the eve of trial. Applicants who have to stand or fall by their founding papers in my view made out no plausible case why the stay applications were brought so late in the day. Had the stay application, especially the one by the ACC defendants, been brought timeously - I must confess- there is an arguable case why a stay could , on the facts of this case, have been favorably considered. The prima facie view was therefore not actuated by the Court's rejection of the merits thereof, especially as far as the ACC defendants are concerned.

[31] The applicants for stay having abandoned it and tendered the costs of the opposition thereto, I am satisfied that the prejudice suffered by the plaintiff is sufficiently cured by a costs order on a party-and-party scale. I am not persuaded by the view advanced by Mr. Barnard for the plaintiff that the ACC defendants were complicit with the Trade Union defendants in devising a stratagem -via the stay application -to effectively achieve the postponement of the trial. It requires a lot of fertile imagination to come to such a conclusion. Besides, I have no reason not to accept Mr. Geier's submission from the Bar that the decision by the ACC defendants to seek a stay was that of instructed counsel who only got briefed at a very late stage in the proceedings

[32] I am not prepared to visit the proverbial sins of the Trade Union defendants on the ACC defendants. It is unsafe to assume that had the defendants, especially the ACC defendants, persisted with the stay application it was destined to fail simply because the Court had expressed a prima facie view against it. The interests of the administration of justice is advanced by it being possible for the Court to inform litigants of the tentative views it has- formed on the pleadings as they stand at a particular point in time- so that they assess their future course of conduct based on that: either to more lucidly elucidate their case in order to address the concerns expressed by the Court, or to abandon a particular trial strategy in order not to waste further time and costs. That should be encouraged, not condemned.

THE POSTPONEMENT APPLICATION 
The law
[33] The principles for the consideration of a postponement application are settled: An application for a postponement must be made timeously, as soon as the circumstances which might justify such an application become known to the applicant. An application for postponement must be bona fide and must not be used as a tactical manouvre. A

[34] In the litigation process, litigants and their legal practitioners have a duty not only towards each other but also towards the Court and the interests of the administration of justice. A litigant's duty is to avoid conduct that imposes a supererogatory cost burden on the opponent. The duty towards the Court and the interests of the administration of justice has two aspects to it: the first is the convenience of the judge assigned to hear the case and the second is the proper functioning and control over the Court roll. When an indulgence is sought from the Court, the litigants' duty towards the Court and the interests of the administration of justice was stated as follows by this Court:

[35] I hope it does not reveal a streak of immodesty for me to state that from the vantage point as head of this Court, I know that the Registrar invariably has files awaiting allocation to judges who might become free. It is important therefore for the Court administration to know in good time that a judge is going to become free from an assigned case - so that new case(s) are allocated to such judge with sufficient read - in time before the case is called. This reality can no longer be an irrelevant consideration in whether or not an indulgence should be granted or a party should be mulcted in costs, and to what extent.
[36] Granting a postponement is in the discretion of the Court. What is clear from high authority is the following:

[38] That said, this is the first postponement request made in respect of the defamation action- unjustified though it was in view of its timing. It is clear that Mr. Strydom was not available to do the trial because of overlapping bookings. Given the complexity of the matter I thought it would be prejudicial to the Trade Union defendants were they to proceed to trial without competent counsel. Refusing the postponement would not do substantial justice between the parties. For that reason I was prepared to grant a postponement. The issue that now remains between the plaintiff and the Trade Union defendants is the nature of the costs order, the Trade Union defendants having tendered to pay costs on the normal scale.

HAS A CASE BEEN MADE OUT FOR A PUNITIVE COSTS ORDER? 
The law

"There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered.
A litigant, moreover who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it.

If he relies on the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself" (at 141C-H).
[41] The Court has an inherent discretion to grant attorney-and-client costs when special circumstances are present arising from the reprehensible conduct of a litigant which warrants such an order -and the Court considers it just that an innocent litigant adversely affected by such conduct is not put out of pocket in respect of the expense caused by such conduct. The Court must be satisfied that a party -and- party costs order will not sufficiently meet the expense incurred by the innocent litigant. Where a party in the course of litigation does something for the sole purpose of gaining time, the Court may grant a punitive costs order as a mark of disapproval. A punitive costs order is also justified where a party and or its legal practitioner engage(s) in deplorable conduct towards the Court.

Insufficient and unsatisfactory explanation for unavailability of counsel

[43] The statutorily sanctioned bifurcation of the practising profession no longer exists in Namibia. In fact where there is a legal practitioner of record, the Court has to specifically sanction costs in respect of disbursements to (additional) instructed

counsel. The Rules of Court do however recognize that there is a place for forensic trial specialization. But whether or not its deployment is justified in a particular case is a matter for the Court and parties must satisfy the Court of the need therefor. Therefore, Kaaronda's assertion that no counsel could be found to conduct the trial for the Trade Union defendants does not satisfactorily explain why no one from the legal practitioners of record were not able to.

[44] Another circumstance that makes the Trade Union defendants' explanation so implausible is the failure to provide a coherent explanation for just how the alleged misunderstanding around Mr. Strydom's engagement occurred and just who was responsible for it. Failing a coherent, reasonable and satisfactory explanation by and on behalf of the Trade Union defendants as to why and when the misunderstanding occurred, I am compelled to accept, on the explanation placed before me by the plaintiff, that there could have been no misunderstanding because Mr. Strydom's secretary had confirmed his availability on 2 June. I agree with Mr. Barnard for the plaintiff that the remissness is relevant not so much to the question whether or not the indulgence should be granted - I made clear at the outset that I was going to grant it -but to the question whether or not the plaintiff should be awarded a special costs order.

Other deplorable conduct

[46] Kaaronda states under oath that the defamation action is not ready for trial. Again there is no explanation why he says the case in respect of which pleadings had closed, a Rule 37 Conference held and dates obtained from the Registrar, is not ready. It is clear from the record that the Trade Union defendants are the only parties to the defamation case who had not yet filed their discovery affidavits. We know from Mr. Strydom's affidavit that discovery was an issue that concerned him at the stage when-about six weeks before the trial- he was reminded of his involvement in the matter.

Application not brought timeously

[47] Another aspect of Kaaronda's affidavit crying out for an answer is why no application for postponement was brought when it became clear- at the very least on 21 October- that the plaintiff was not interested in either a stay or postponement of the defamation action. It is equally not at all explained why the Trade Union defendants' legal practitioner of record did not settle the papers for, at the very least, the postponement application at that stage if instructed counsel's availability was a problem. There is even no suggestion at all in Kaaronda's affidavit that Mr. Strydom was not available to draft the papers in respect of the stay or the postponement application when the alleged misunderstanding between him and instructing counsel became apparent. In any event, assuming that Mr. Strydom was not available, any admitted legal practitioner with a modicum of experience ought to be able to draft a postponement application. The Trade Union defendants' legal practitioner of record should have done that: They did not and there is a complete absence of explanation why they could not. That is unacceptable!

[48] Kaaronda states that six weeks before the set down date, the legal practitioner of record of the Trade Union defendants called Mr. Strydom to secure his services for the trial. It requires no great imagination to infer that this was the time when both the Trade Union defendants and their legal practitioners of record considered trial preparations should start. Why did they not already prepare the necessary discovery affidavits? It is clear from the papers that failure to discover is one of the main reasons why the Trade Union defendants were not ready for trial. Did the Trade Union defendants' legal practitioner of record require the services of instructed counsel for that elementary task? May be they did. If they did there is no explanation by the Trade Union defendants- and they would have had to provide a very good explanation why.
[49] Another curious thing that emerges reading Kaaronda's affidavit alongside that of Mr. Strydom is this: If it was considered impossible for a new instructed counsel to get to grips with the case at such a late hour - why try at all to secure the services of one? Again, the inference that an attempt was being made to secure alternative counsel as a ruse to bolster the case for a postponement application, is irresistible.

[50] Contrary to Mr. Corbett's suggestion otherwise on the behalf of the Trade Union defendants, the application for postponement was not made at the earliest opportunity when it became clear that Mr. Strydom would not be available. The attempts to seek other counsel was not, in my view, bona fide because by the Trade Union defendants own version, such counsel could not get to grips with the case in order to prepare for trial. This is not simply a case, as suggested by Mr. Corbett, where the litigant is not to blame for remissness: Dates were allocated and it stretches credulity that the Trade Union defendants could not have known of them and who the counsel was who would represent them at the trial and the problems being experienced with his retention.

Reprehensible conduct towards the Court and interests of the administration of justice
[51] Had the application for postponement been brought and been granted at the time the 'misunderstanding' occurred, the business of the Court would have been arranged differently: The judge assigned to the case would have been assigned other duties for that period in the knowledge that the matter would not proceed. That is not possible when an application for postponement is brought on the eleventh hour. The effect of what the Trade Union defendants did is to put to waste scarce judicial resources and in that way to place in disrepute the interests of the administration of justice.

[52] In sum, the Trade Union defendants are in breach of all duties owed by litigants as set out in paragraph 34 of this judgment. In the exercise of my discretion that merits a punitive costs order on the scale as between attorney-and--client, including the wasted costs related to preparation for instructed counsel's reservation for the aborted trial.

[53] In addition to all that I have said above, I rely on the following special circumstances to make a special costs order:
1.	The Trade Union defendants' legal practitioner of record created a situation where at the very last minute it was realized that no instructed counsel was available to take the matter to trial;
2.	The failure to have prepared for and to make discovery on behalf of the Trade Union defendants was in equal measure responsible for the Trade Union defendants' unpreparedness to proceed to trial. (It is clear from Mr. Strydom's affidavit that even if he was available, absence of discovery was a clear hurdle in the Trade Union defendants' preparedness for trial.)
3.	When the legal practitioners of record discovered the conflicting engagement of Mr. Strydom (a fact which I must accept must have then become apparent to the Trade Union defendants) no effort was made to seek the views of the plaintiff on the need for the postponement - so that appropriate relief was sought if he did not agree - and if the application was disposed off whichever way unnecessary costs were not incurred by the plaintiff. Instead, the Trade Union defendants' legal practitioner of record chose not to write at all to the plaintiff's at the same time that the views of the ACC defendants were sought on 13 October in respect of the stay, alternatively postponement.
4.	The timing of both the stay application and the postponement application had the consequence pointed out by the plaintiff: they were timed in such a way that on the dates set down for trial those applications would have to be heard and determined and the trial could not proceed as a result. Instead of preparing for trial over the weekend before which it was filed, the plaintiff was constrained to prepare opposing papers in respect of the two applications and to incur additional costs in so doing.
5.	The plaintiff was ready at all times to proceed to trial. At no stage prior to 20 October was he given any indication that either a stay would be sought by the Trade Union defendants or a postponement in the alternative. The plaintiff prepared fully and even put counsel in funds to conduct the trial. A normal costs order on party -and-party scale does not sufficiently address the prejudice he has suffered.

[55] Even if I was satisfied (which I am not) that the application for postponement was bona fide, considering that (i) the plaintiff was in no way culpable for the Trade Union defendants' unpreparedness to proceed to trial; and (ii) the plaintiff had in genuine expectation that the trial would proceed on the appointed dates, incurred costs in the preparation for trial which through no fault of his had now become wasted, I am satisfied that he would be entitled to full recompense for being out of pocket.

[56] I am satisfied that in this case there are special considerations arising from the conduct of the Trade Union defendants and their legal practitioner of record, for the award of a punitive costs order. In the exercise of my discretion I propose to grant such an order.

The order

Part One:

[57] The trial of this defamation action is postponed to the second term of 2011 to a date to be arranged with the Registrar.
Part Two:

Part Three:

DAMASEB, JP