1
REPORTABLE
REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI
JUDGMENT
Case no: A 22/2013
In the matter between:
THE PROSECUTOR-GENERAL APPLICANT
and
PANDA NZINU RESPONDENT
Neutral citation: Prosecutor-General v Nzinu (A 22/2013) [2014] NAHCNLD 38 (02 July 2014)
Coram: CHEDA J
Heard: 30.06.2014
Delivered: 02 July 2014
Flynote: A party which is not happy with the decision of the Registrar with regards to security for costs is entitled to approach the court for review of that decision. The Registrar’s decision is final and the court can only set it aside if it unreasonable, too high or has been actuated by ulterior motives. A peregrinus is obliged to pay security for costs unless he has immovable property within the jurisdiction of the court. A peregrinus who initially offers to pay certain amount as security for costs and later withdraws the said offer and thereafter refuses is regarded as lacking bona fides in his argument that he is unable to pay. In determining his ability to pay, the court takes into account various factors.
Summary: Applicant (Prosecutor-General) applied for security for costs before the Registrar. Respondent (a peregrinus) offered N$60000. The Registrar ordered respondent to pay N$200000 which she later reduced to N$140000. Respondent was not happy with both figures. Respondent argues that he was not in a position to pay any amount including the N$60000 which he had initially offered.
ORDER
1. Respondent be and is hereby ordered to pay N$140000 into court as security for costs by an irrevocable Bank Guaranteed Cheque or cash;
2. The said payment should be made within 14 days from the date of this order;
3. The main proceedings are stayed until the respondent has complied with paragraphs 1 and 2; and
4. The Respondent shall pay the costs of this application.
JUDGMENT
CHEDA J:
[1] In this matter applicant filed a notice for application for security for costs which was opposed. On the 30 May 2014 the matter was placed on the roll for case management and the issue in respect of the security for cost was left with the managing judge.
[2] This application is based on the main application by applicant for a preservation order in terms of s51 of the Prevention of Organised Crime Act, Act no. 29 of 2004 (“POCA”). The said application is opposed by respondent and is subject of separate proceedings. It is therefore not necessary to go into those details at this stage.
[3] Applicant served respondent with an application for payment of costs for security on the 2nd May 2014. In that application applicant claimed costs in the amount of N$200000. This application was opposed. On the 17th June 2014 the matter was set down for hearing and after hearing preliminary arguments, I ordered that the parties attend at the Assistant Registrar’s Office in order to agree on the security for costs. The Assistant Registrar ordered respondent to pay the amount of N$140000 in respect of the said security for costs. Again respondent opposed this ordered, he initially offered to pay N$60000.
[4] Applicant’s argument is that the Assistant Registrar has determined this application and ordered respondent to pay N$140000 which is a climb-down from the N$200000 which was being claimed by applicant. It is further, its argument that the court is called upon to review that decision which decision is a final decision, as it was made in terms of rule 59 (3) which reads:
“the registrar must determine the amount of security to be given”
[5] It is now settled law in our jurisdiction and indeed in South Africa that every litigant who is a peregrinus is obliged to give security for costs unless he proves that he is possessed of immovable property, situated within the area of jurisdiction, in this case, in Namibia. The term peregrinus is used in connection with the obligation to give security means any non-resident litigant outside the jurisdiction of court, see De Lisle v Lennon 1910 WLD 239.
[6] However, even if the decision of the Registrar is deemed final, the court still has an inherent jurisdiction to review it, see Pharumela & Another v St John’s Apostolic Faith Mission of South Africa and Another 1975 (1) SA 311. In the event of dissatisfaction of that decision, any party can then place the matter before the court for review. The correct legal position is that the court has an inherent judicial discretion to grant or refuse an order for security of costs. In coming to a decision it will consider the circumstances of each case, see, also Zeda Financing (Pty) LTD v Du Toit t/a Amco Diensstasie 1992 (4) SA 157 (0) and Legal and General Assurance Society v Lieberum, N.O. and Another 1968 (1) SA 473, generally the discretion of the Registrar is not disturbed unless it has not been properly exercised.
[7] The court should have regard to the particular circumstances of the case and considerations of equity and fairness to both the incola and the peregrinus, see Magida v Ministry of Police 1987 (1) SA 1 (A) at 12 A-C where Joubert, JA stated:
“the conclusion to be drawn from my investigation of the sources of our common law is that an incola by claiming security for his costs against a non-domiciled foreigner did not assert a right flowing from substantive law. In other words, an incola did not have a right which entitled him as a matter of course to the furnishing of security for his costs. It was a question of practice in the Dutch courts that a Judge should hold an inquiry to investigate the merits of the matter fully. The approach of the Judge was not to protect the interests of the incola to the fullest extent. He had a judicial discretion to grant or refuse the furnishing of security by means of a caution fudeuyssoria by having due regard to the particular circumstances of the case as well as consideration of equity and fairness to both the incola and the non-domiciled foreigner.”
[8] In South African Iron & Steel Corporation v Abdulnabi 1989 (2) SA 224 (T) at 233 F-H, Hartzenberg J remarked:
“…that an incola litigant is not as a matter of course entitled to demand security from a peregrinus claimant but that it is in the discretion of the Court to make such an order, after an investigation of the circumstances, and if equity and fairness to both litigants dictate that such an order be made, taking inter alia into account, where applicable, the following aspects:
1) The residential circumstances and domicile of the foreigner, as the Court will more readily grant an order against a foreigner with no fixed address and country of domicile than against a person with a fixed address and domicile, just as the Court will more easily grant an order against a person who is domiciled in a country where an order of Court cannot be executed, than against a person who lives in a country where an order can without difficulty be executed.
2) The financial circumstances of the foreigner, as the foreigner is not effectively to be non-suited by ordering him to furnish security beyond his means.
3) The Character of the foreigner, as the Court will more readily grant such an order against a dishonourable person than against an honourable person.”
[9] The court is entitled to protect an incola to the fullest extent before it will assist the peregrinus, see, also Alexander v Jok and Others 1998 (3) SA 269 (W).
[10] At the same time, as the court is the court of justice and is always alive to the principles of equity, it will not deny justice to a peregrinus as a result of unreasonable obstacles placed in the way in order to block it from accessing justice in our courts.
[11] A peregrinus who is a party before the court, is, unless he has within the area of jurisdiction an immovable property with a sufficient margin unburdened to satisfy that may arise in litigation is obliged to pay security for costs.
[12] In the present case, respondent was convicted by a competent court for dealing in dangerous drugs, to wit, crack cocaine. A motor vehicle which is alleged to have been used in the commission of the said offence is the subject of forfeiture which is in fact opposed. This type of litigation will no doubt necessitate legal costs on both sides. Respondent being a peregrinus has no unburdened immovable property within the Jurisdiction of the court. Therefore, in the event that applicant succeeds there will be a need for respondent to bear costs for the said litigation as under normal circumstances, costs follow the event. I state the above with full knowledge that the court seized with the burden of making a determination for security of costs should not venture into the merits of the case, therefore, soundness or bona fides of the claim is not an influential factor in these proceedings see Alexander v Jok (supra).
[13] In casu applicant sued respondent under “POCA”. Respondent is a peregrinus. He has filed a notice of opposition. In light of the South Africa authorities, which are not binding but persuasive, it was held that a peregrinus cannot be compelled to give security merely because of defending an action initiated by an incola, see Thomson, Watson and co. v Panerty Bay Farmers Meat Supply co. 1924 CPD 93 and Selero (Pty) LTD Chauvier 1982 (3) SA 519 (T) at 521 B-C.
[14] In casu the question is not whether respondent should be compelled to pay security for costs, but, is the question of quantum. In his answering affidavit filed with this court on the 24 June 2014 he made an offer of N$60000 which offer was rejected by applicant and the Registrar later fixed it at N$140000. What I find dramatic is that earlier on, he offered to pay N$60000 when applicant wanted N$200000. But, when the Registrar agreed with him that the figure was high and reduced it to N$140000 he now refuses to pay any amount including the N$60000. This conduct on his part brings into sharp focus the bona fides of his inability to pay. It is therefore rejected.
[15] The Registrar is fully and legally empowered to fix a figure/amount as security for costs. This court has a judicial discretion to interfere with the Registrar’s order in very limited circumstances though, chief amongst which would be where;
1) it was clearly wrong;
2) was unreasonable;
3) unjustifiably harsh;
4) improper motive; and
5) wrong application of the law, (the list is inexhaustive)
[16] I found none of the above and I have no reason to disturb that discretion by the Assistant Registrar. Applicant had asked for N$200000 and the Registrar reduced the figure toN$140000.
[17] In my view, the revision downwards was in the circumstances reasonable and I am not persuaded to interfere with such a determination. I come to this conclusion having taken into account all the factors pertinent to this matter as presented by both parties.
[18] In the result, this is the order
1. Respondent be and is hereby ordered to pay N$140000 into court as security for costs by an irrevocable Bank Guaranteed Cheque or cash;
2. The said payment should be made within 14 days from the date of this order;
3. The main proceedings are stayed until the respondent has complied with paragraphs 1 and 2; and
4. The Respondent shall pay the costs of this application.
______
M CHEDA
JUDGE
APPEARANCES
APPLICANT : Government Attorney
WINDHOEK
RESPONDENT: Dr. Weder, Kauta & Hoveka Inc.
ONGWEDIVA