Council of Itireleng Village Community v Madi and Others (306 of 2011) [2012] NAHC 195 (17 July 2012)

# Council of Itireleng Village Community v Madi and Others (306 of 2011) [2012] NAHC 195 (17 July 2012) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nahc/2012/195/eng@2012-07-17) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nahc/2012/195/eng@2012-07-17) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nahc/2012/195/eng@2012-07-17) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nahc/2012/195/eng@2012-07-17) [ __](mailto:?subject=Take a look at this document from NamibLII: Council of Itireleng Village Community v Madi …&body=https://namiblii.org/akn/na/judgment/nahc/2012/195/eng@2012-07-17) [ Download RTF (1.6 MB) ](/akn/na/judgment/nahc/2012/195/eng@2012-07-17/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nahc/2012/195/eng@2012-07-17/source.pdf) Report a problem __ * Share * [ Download RTF (1.6 MB) ](/akn/na/judgment/nahc/2012/195/eng@2012-07-17/source) * [Download PDF](/akn/na/judgment/nahc/2012/195/eng@2012-07-17/source.pdf) * * * * * Report a problem __ ##### Council of Itireleng Village Community v Madi and Others (306 of 2011) [2012] NAHC 195 (17 July 2012) Copy citation * __Document detail * __Related documents Citation Council of Itireleng Village Community v Madi and Others (306 of 2011) [2012] NAHC 195 (17 July 2012) Copy Media Neutral Citation [2012] NAHC 195 Copy Court [High Court](/judgments/NAHC/) Case number 306 of 2011 Judges [Parker J](/judgments/all/?judges=Parker%20J) Judgment date 17 July 2012 Language English Other documents [Download PDF](/akn/na/judgment/nahc/2012/195/eng@2012-07-17/attachment/council-of-itireleng-village-community-v-madi-and-others-2012-nahc-195-17-july-2012.pdf) (108.9 KB) * * * Skip to document content ‘ _Unreportable’_ **CASE NO.: A 306/2011** **IN THE HIGH COURT OF NAMIBIA** In the matter between: **COUNCIL OF ITIRELENG VILLAGE COMMUNITY Applicant** **(COMPRISING THE MEMBERS LISTED PER** **ANNEXURE ABM3)** and **FELIX MADI 1****st****Respondent** **TSHABANG MAKGONE 2****nd****Respondent** **ANNA MOKALENG 3****rd****Respondent** **EUPHAROSINE MBUENDE 4****th****Respondent** **BERHARD MOKALENG 5****th****Respondent** **REINHARTH MORWE 6****th****Respondent** **VICTUS EDWARD 7****th****Respondent** **AUGUSTINUS MOKALENG 8****th****Respondent** **GENVEFA MOKALENG 9****th****Respondent** **JASPER MADI 10****th****Respondent** **MICHAEL KAPENG 11****th****Respondent** **OSWALD TIBINYANE 12****th****Respondent** **LAZARUS SEBETWANA 13****th****Respondent** **ARNOLD MORWE 14****th****Respondent** **ALEXIUS UDIGENG 15****th****Respondent** **BERLINDIS UDIGENG 16****th****Respondent** **RILEU KENE 17****th****Respondent** _**CORAM**_**: PARKER J** Heard on: (2012 April 12) Delivered on: 2012 July 17 _________________________________________________________________ **JUDGMENT** _________________________________________________________________ _**PARKER J**_ : [1] The applicant launched an urgent application on _ex parte_ basis and obtained a rule _nisi_. The rule _nisi_ was, for one reason or another, not served on all the respondents. In any case, opposing papers were filed, and the applicant filed replying papers. In the course of events, by consent of the parties the rule _nisi_ was discharged on account of the fact that the event sought to be interdicted had already taken place. The only issue which the parties have called on the Court to determine in the present proceeding is, therefore, which party should bear the wasted costs of the urgent application; that is, the applicant or the respondents. [2] As I have found previously, the rule _nisi_ was discharged by consent of the parties. It is, therefore, of no moment in the present proceeding as to who capitulated. What is relevant for my present purposes is the only point that by consent of the parties the rule _nisi_ has been discharged. It follows that any submission bearing on the merits of the case is really of no assistance on the issue under consideration, namely, costs. [3] Relying on the authorities, the Court stated in _Central Maintenance Close Corporation v Council for the Municipality of Windhoek_ Case No. I 3671/2007 (Judgment delivered on 2 December 2011) (Unreported) that where a litigant withdraws an action or in effect withdraws it, every sound reason must exist why a defendant or respondent should not be entitled to his or her costs. The plaintiff or applicant who withdraws his action or application is in the same position as an unsuccessful litigant because, after all, his or her claim or application is futile and the defendant or respondent is entitled to all costs associated with the withdrawing of the plaintiff’s or applicant’s institution of proceedings. In the instant proceeding, the applicant has not withdrawn the application and so he is not in the same boat as an unsuccessful litigant. [4] In _Channel Life Namibia Limited v Finance in Education (Pty) Ltd_ 2004 NR 125 the Court held that where a court is called upon to adjudicate only upon the question of costs, there should not be a hard-and-fast rule whether it would be necessary for the Court to consider the merits of the case: each case must be treated on its own facts. In some cases it would be necessary to consider the merits; in other cases it would not be necessary to do so. On the facts and in the circumstances of the present proceeding, it is absolutely unnecessary to consider the merits. [5] In _Morris v Government of the Namibia_ 2001 NR 51 the Court held that since it was the applicants who had been at fault in not continuing with the action instituted by them (_qua_ plaintiffs) against the respondents (_qua_ defendants) who in their turn had incurred legal expenses, the respondents were entitled, depending on how far the abortive proceedings had progressed, to set the matter down for costs. In the instant proceeding, it cannot be said on any account that the applicant is at fault for the proceeding respecting the confirmation of the rule _nisi_ not continuing. Proceeding was discontinued upon the parties consenting to the discharge of the rule _nisi_. [6] It is trite law that costs follow the result unless exceptional circumstances exist. In the present proceeding, the result is that by consent of the parties the rule _nisi_ was discharged. It follows inexorably and reasonable that no party is entitled to wasted costs: each party should pay its own costs. In the result, I make the following order: There is no order as to costs. **__________________** **PARKER J** **COUNSEL ON BEHALF OF THE APPLICANT:** Mr T Chibwana Instructed by: Government Attorney **COUNSEL ON BEHALF OF THE RESPONDENTS:** Adv. P C I Barnard Instructed by: Dr Weder, Kauta & Hoveka Inc. #### __Related documents ▲ To the top >