- September 16, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
On 26 May 2021, Mr. Amupanda commenced action proceedings against the first to fourth defendants seeking an order; (a) declaring that the erection of the Veterinary Cordon Fence has not been carried out in terms of any law; (b) declaring that the erection of the Veterinary Cordon Fence is unconstitutional; and (c) reviewing and setting aside the decision of the first and second defendants to retain the Veterinary Cordon Fence. The first to fourth defendants defended the action and at a later stage, when the fifth to the eighth defendants gained knowledge of the matter, they intervened and were joined as defendants to the action.
On 4 March 2022, Mr Amupanda delivered a notice of intention to amend his particulars of claim. The defendants did not oppose the amendment and the amendment was effected in terms of rule 52, on 24 March 2022. Mr Amupanda, however, did not tender costs to the defendants, and on 24 June 2022, the Meatboard signified its intention to follow up on its warning as contained in the case management report of 24 February 2022 to seek an order for wasted costs, which application was heard and disposed of.
On 29 August 2022, Mr Amupanda, in response to Meatboard’s indication that it will seek an order for wasted costs and in addition to opposing the application for wasted costs, filed an application for a protective costs order in terms of rule 20, which was heard on 29 June 2023. Mr. Amupanda contends that the issues in the main action are of public importance, underpinned by social justice and not for personal or political gain, that a protective costs order will ensure that the parties litigate on equal footing, and that he anticipates that the costs of this action will run into millions. Due to his limited financial resources, he will not be able to pay the defendants’ legal costs if his action is dismissed with costs. The defendants oppose the application on the ground that the plaintiff failed to satisfy the requirements of rule 20 and consequently, he has not made out a case for a protective costs order.
‘Has Mr Amupanda satisfied the requirements of rule 20?
[27] Rule 20(1) is formulated using the conjunctive adjective ‘and’ in a manner that appears to require the existence or satisfaction of all the requirements set out in the rule. In other words, an applicant for a protective costs order must satisfy the court that: first the issues raised in the case are of general public importance, and it is a first impression case; second, that public interest requires that those issues be resolved; and thirdly having regard to the financial resources of the applicant and respondents the amount of costs that are likely to be involved it is fair and just to make a protective costs order, as long as the conduct of the applicant in the case is not frivolous or vexatious.
[28] In evaluating whether Mr. Amupanda has satisfied the requirements of the rule, the court must consider the evidence that Mr. Amupanda has placed before it and the evidence placed by the defendants before it, and bearing in mind that the onus is on Mr. Amupanda in order to decide whether the court is satisfied that the public would be better served if the relief sought by Mr Amupanda, in the main action, were to be granted. The court must as best it can, in the light of the special facts and circumstances of this case determine who ‘the public’ is; in doing so the court will have regard to those individuals or classes of individuals, who might be affected directly or indirectly by the relief sought by Mr Amupanda in the main action.
Public importance and public interest
[42] I have no hesitation in concluding that this case raises issues of general public importance. The first reason why I come to that conclusion is the fact that the issues raised relate to a perception (whether the perception is wrong or right matters not at this moment) that the Government’s policy of restricting the movement of livestock from the areas north of the Veterinary Cordon Fence to areas south of the Veterinary Cordon Fence is discriminatory. Discrimination is an evil that offends against the public policy of this country. It is thus of utmost public importance that legal certainty be obtained as to whether the Government’s actions or policy is discriminatory and thus affronts the Constitution.
[45] I pause here to note that the labels (namely that Mr. Amupanda raises or brought the issues to court to gain or score political goals), which the Minister and the Meatboard use to characterize the institution of this action by Mr. Amupanda are irrelevant. I say they are irrelevant because Article 17 of our Constitution accords Mr. Amupanda the right to participate in peaceful political activities intended to influence the composition and policies of the Government and to participate in the conduct of public affairs, whether directly or through freely chosen representatives. The only relevant question is thus whether it is in the public interest that the competing contentions are resolved, and as I have found it surely is of public importance and in the public interest that the issues be resolved.
[46] I therefore do not agree that Mr. Amupanda is abusing the court or its process when he brings the question of whether or not the retention of the Veterinary Cordon Fence is discriminatory against a section of the Namibia populace for determination by the court. The question of whether or not Mr. Amupanda will score a victory which he will otherwise not score in the political ‘playing field’ is of no moment because courts exist to resolve legal disputes and cannot shy away from that responsibility simply because one of the parties may score a political victory. The only question must be whether the dispute is a legal dispute which is justiciable.
Fairness and justice taking into consideration financial means
[47] One of the contentions on which Mr. Amupanda anchors his application for a protective costs order is his reliance on the principle which he identifies as the principle of ‘equality of arms’, and which he claims is rooted in Article 12 of the Namibian Constitution. Mr Amupanda argues that without a protective costs order, he will not have a fair trial.
[49] In the present matter, Mr. Amupanda simply states that he is a natural person without the necessary financial means to advance this case and as such further the interest of justice. He says that he does not have access to resources sufficient to achieve equality of forces (as opposed to the defendants). He furthermore simply states that the costs involved in this matter will be ‘messy’ and will run into millions of Namibia Dollars. These are not facts but are unsubstantiated bold statements and conclusions, the basis on which they were arrived at not having been stated.
[50] I do, therefore, agree with the Minister and Meatboard’s contention that because Mr Amupanda has not fully disclosed his financial position to this court, he has not met the requirements set out in rule 20(1)(c). Looking at the financial situation presented by Mr. Amupanda, I am not in the position to arrive at a conclusion as to whether or not it is just and fair that I grant a protective costs order in his favour and what conditions I must impose if I indeed grant the protective costs order.
[51] The conclusion that I have arrived at, namely that Mr Amupanda has not satisfied the requirements imposed by rule 20(1)(c), would ordinarily have one and only one result namely the refusal and dismissal of Mr Amupanda’s application for a protective cost order.
[52] I earlier stated that the Deputy Chief Justice in his work Court-Managed Civil Procedure of the High Court of Namibia Law, Procedure and Practice argued that the purpose of rule 20 is that a person who has an arguable case that involves a matter of public interest must not, for fear of an adverse costs order, be deterred from pursuing a claim.
[53] I am therefore inclined to assist Mr Amupanda in this regard. I will grant him leave to supplement his papers and to place more detailed information before the court for the court to properly assess his financial resources and the amount of costs that are likely to be involved in this matter.
Order
[54] Having considered the arguments presented and the papers before me, as well as the applicable law, I make the following order:
1 The plaintiff is granted leave to approach this court on the same papers, duly amplified, on the aspect of his financial resources and the amount of costs that are likely to be involved in this matter.
2 For the purposes of paragraph 1 of this order, the plaintiff must, if so advised, file his amplified papers by not later than 12 September 2023.
3 The defendants may, if so advised, reply to the plaintiff’s amplified papers by not later than 23 September 2023.
4 The matter is postponed to 26 September 2023 at 08h30 for a status hearing to consider the way forward.’