CIVIL PRACTICE – INTERLOCUTORY APPLICATION FOR SECURITY FOR COSTS

CIVIL PRACTICE – INTERLOCUTORY APPLICATION FOR SECURITY FOR COSTS

In an ongoing action, the defendant (applicant) brought an application for the posting of security for costs. In their answering affidavit, the Plaintiffs (respondents) raised what they characterized as ‘points in limine’. At the hearing, arguments cantered on the applicant’s non-compliance with rule 32 (9) and rule 59 (1) of the rules of court.  As an adjunct to rule 59 (1) preliminary objections, respondents aver that there has been an unreasonable delay in bringing the application.

PARKER AJ had to determine the application for security for costs (‘the application’) with regard to the preliminary objection respecting rule 32 (9) only. The reason was that the upholding of rule 32 (9) objection would be dispositive of the application, and held:

1. The first crucial point to make is that the applicant, who wishes to bring an interlocutory proceeding, bears the burden of ensuring the implementation of rules 32 (9) and (10). The ipsissima verba of rule 32 (9) accounts for this affirmation.
2. The applicant relied on a letter to the respondents in fulfilment of rule 32(9). That by all accounts was not a perfunctory account to comply with the peremptory provisions of rule 32(9).

‘[T]he mere writing of a letter may be the precursor to a meeting where the parties, duly instructed with issues or material for full discussion, and possibly resolution of some, if not all the issues on the table.  The letter initiating a meeting cannot be an end in and of itself (Bank Windhoek v Benlin 2017 (2) NR 403 para 14).

1. The letters written by the applicant’s legal representatives ‘cannot pass as a genuine attempt to settle the matter amicably, consequently, there was no compliance with rule 32(9).
2. Having found that there was non-compliance with the peremptory provisions of rule 32(9), it was otiose to consider any other issues on account of the prescriptions in rules 32(9) and (10) of the rules of Court.

As a result, the court found that there was no application for security for costs properly before it for adjudication. The application was accordingly struck from the roll with costs as prescribed in rule 32(11) of the rules of court.

January v January NAHCMD 19 October 2022