Court name
Supreme Court
Case name
Nationwide Detectives and Professional Practitioners CC v Standard Bank of Namibia Limited
Media neutral citation
[2008] NASC 14































REPORTABLE



CASE
NO SA 32/2007


















IN THE SUPREME COURT OF NAMIBIA







In the matter between














NATIONWIDE
DETECTIVES AND


PROFESSIONAL
PRACTITIONERS CC



APPELLANT








And














STANDARD
BANK OF NAMIBIA LIMITED



RESPONDENT







Coram:
Shivute,
CJ, Strydom, AJA
et
Chomba, AJA


Heard
on:
02/04/2008



Delivered on:
24/10/2008










APPEAL JUDGMENT













SHIVUTE,
CJ:

[1] This appeal raises an important question in our law of whether
a member of a close corporation who is not a legal practitioner is in
law precluded from representing the corporation in legal proceedings
in our superior courts.








  1. The appellant,
    a close corporation, was a party to an action instituted against it
    in the High Court (Heathcote, AJ) by the respondent in which the
    respondent claimed
    inter
    alia

    repayment of a sum of money allegedly mistakenly deposited in the
    bank account of the appellant by employees of the respondent and
    which amount the appellant allegedly appropriated. For some reason
    the respondent withdrew the action against the appellant but the
    notice of withdrawal did not embody consent to pay appellant’s
    costs in the action as envisaged in Rule 42(1)(a) of the Rules of
    the High Court.
    1
    Consequently, the appellant applied to the Court
    a
    quo,
    as
    it was entitled to do,

    for
    an order for costs in terms of Rule 42(1)(c) of the Rules of the
    High Court. The appellant furthermore sought an order that
    prohibited the respondent from instituting any action against the
    appellant until such time that it had paid the appellant’s
    costs in the action that it had withdrawn.









  1. The appellant was
    represented in its application by Mr AM Kamwi, the sole member of
    the applicant, who is not a legal practitioner. Mr Kamwi had also
    represented the appellant in the action that was subsequently
    withdrawn.









  1. The respondent
    opposed the application and took the point that since Mr Kamwi was
    not a legal practitioner, the appellant was not entitled to any
    costs, save its actual disbursements taxed by the Registrar. With
    regard to the prayer to bar the respondent from instituting any
    action against the appellant prior to paying the costs, the
    respondent argued that a Court normally exercises a discretion
    whether or not to impose a stay on a litigant to proceed with an
    action against another party and that for the Court to be in a
    position to exercise such a discretion, it must be in possession of
    facts, which facts the appellant allegedly neglected to place before
    the court.









  1. The Court a
    quo

    agreed with counsel for the respondent’s submission and held
    that a lay litigant acting in person was not entitled to costs other
    than actual disbursements reasonably incurred. With regard to the
    prayer for the prohibition to institute proceedings until costs had
    been paid, the learned Judge found that no case had been made out
    for the prayer and declined to grant it.









  1. Aggrieved by the
    decision of the Court
    a
    quo
    ,
    Mr Kamwi lodged the present appeal purporting to act for and on
    behalf of the appellant. He did so on the following grounds:








1. The
Honourable Acting Judge erred in law and in effect when he found that
a lay litigant is not entitled to his costs including expenses for
his/her labour whereas decided cases by the above Honourable Court
found that the issue of disbursement only applies where there is no
order of Court for costs.







2. The
Honourable Acting Judge misdirected himself by basing his finding on
the tariffs for legal practitioners prescribed by the Rules of the
High Court of Namibia whereas decided cases show that the tariffs
prescribed in the rules of the High Court cannot deny a lay litigant
from claiming his costs.







3. He
misdirected himself when he found in his judgment that appellant
relied on the authority of
Webb
v Union Government

whereas appellant relied on the authority of the above Honourable
Court delivered on 29 March 2007 as well as secondary legal materials
followed by the courts which the acting judge avoided in his
judgment.







4. The
Honourable Acting Judge erred in law and in effect when he found that
Appellant was not substantially successful whereas in fact and in law
she (
sic)
was substantially successful.”








  1. Mr Kamwi
    accordingly
    argued the appeal on behalf of the appellant while Mr Mokhatu
    appeared for the respondent.









  1. The respondent
    filed application for condonation for the late filing of its heads
    of argument, which
    was
    initially opposed, but the opposition having been abandoned, the
    Court found that a case had been made out and it accordingly granted
    the application.








Points
in limine








  1. Mr Mokhatu takes
    several points
    in
    limine,

    two of which if found to be sound in law, would have the
    consequences that the appeal is not properly before us and stands to
    be struck from the roll. We nevertheless allowed the parties to
    argue the appeal including the merits and reserved judgment in
    respect of both the points
    in
    limine

    and the merits. It therefore becomes necessary to first consider
    the points
    in
    limine,

    starting with the two points
    in
    limine
    that call for consideration in greater detail in view of their
    potential to curtail the proceedings in the appeal.









  1. The first
    point concerns the alleged existence of a legal impediment to Mr
    Kamwi noting and arguing the appeal on behalf of the appellant. It
    is argued that by virtue of Rule 16(2)(a) of the Rules of the High
    Court
    2,
    a party to court proceedings in the High Court or Supreme Court has
    to act in person or alternatively through a legal practitioner. Mr
    Mokhatu also referred the Court to section 35(1) of the Supreme
    Court Act, 1990.
    3
    Furthermore, Mr Mokhatu contends that as a juristic person, the
    appellant can only be represented in Court by a legal practitioner
    as it is incapable of acting “in person”. Mr Mokhatu
    relies on South African cases of
    Volkskas
    Motor Bank Ltd v Leo Mining Raise Bone CC and Others;
    4
    Yates Investments v Commissioner for Inland Revenue;
    5
    Dormehl’s Garage (Pty) Ltd v Magagula
    6
    and
    Arma
    Carpet House (Johannesburg) (Pty) Ltd v Domestic and Commercial
    Carpet Fittings (Pty) Ltd and Another,
    7
    as
    alleged
    authority

    for
    the proposition that a corporation cannot be represented in court
    proceedings by persons other than legal practitioners.









  1. A reading of the
    cases
    cited
    by Mr Mokhatu shows, however, that only
    Yates
    Investments v Commisioner for Inland Revenue (supra
    );
    Dormehl’s
    Garage (Pty) Ltd v Magagula (supra)

    and
    Arma
    Carpet House
    case
    (
    supra)
    support the contention advanced by Mr Mokhatu in this regard. The
    Volkskas
    Motor Bank
    case
    (
    supra)
    concerned an attempt by a natural person who was not a legal
    practitioner to represent two other natural persons and not a
    corporate entity as is the case
    in
    casu
    .
    Mahomed, J (as he then was) found that since the applicable South
    African Rule 19(1) of the Uniform Rules of Court required a
    defendant, within a specified time, to deliver a notice of intention
    to defend ‘either personally or through his attorney’,
    the notice of intention to defend filed by a defendant in respect of
    defendants other than the defendant who had given the notice was
    irregular and invalid.
    8









  1. The principle
    established in the
    Yates
    Investments v Commissioner of Inland Revenue

    case (
    supra)
    and many other cases regarding the requirement that a corporation
    must be represented by a legal practitioner in court proceedings was
    stated by Margo, J in the
    Arma
    Carpet House
    case
    (
    supra)
    as follows in relation to the application of the rule in South
    Africa at the time of the judgment:
    9








In
appearance
s
before the Court the position, on the authorities, is that a litigant
who does not appear in person must be represented by an advocate, and
in certain very exceptional circumstances may be represented by an
attorney, but that a company, being an artificial person, may not
appear in person. In pleadings the Rule is that such must be signed
by an advocate and attorney, or by the litigant in person; but, on
the decided cases, a corporation, being an artificial person, cannot
sign ‘in person’.”












  1. The
    above rule of practice is to be found not only in South African
    common law, but also in that of Zimbabwe, Republic of Ireland and
    Commonwealth jurisdictions such as England, Australia, New Zealand
    as well as Canada
    10.
    That this is also a rule of practice in our jurisdiction is plain
    seeing that our common law and that of South Africa and Zimbabwe are
    in substance the same. The real question is whether the rule can be
    sustained in all circumstances in the light of constitutional
    developments.









  1. It is common cause
    that the appeal
    in
    this matter was drafted, signed and lodged by Mr Kamwi who, as
    previously stated, purported to act for and on behalf of the
    appellant. Mr Mokhatu contends that by drafting, signing and/or
    lodging the notice of appeal on behalf of the appellant, Mr Kamwi
    has not only acted contrary to a rule of practice of this Court, but
    that his purported representation of the appellant amounted to a
    contravention of section 21(1)(c) of the Legal Practitioners Act
    (Act 15 of 1995) as amended by Act 4 of 1997.
    11
    Accordingly, so Mr Mokhatu submits, the notice of appeal drafted,
    signed and lodged by Mr Kamwi is a nullity in law.









  1. Mr Kamwi resists
    this submission and contends that as the sole member of the
    appellant, he was entitled to represent the appellant in his
    capacity as a duly authorised organ or
    alter
    ego
    of
    the appellant. He expressly disavowed any suggestion that he lodged
    the appeal by virtue of the appellant being a paralegal acting in
    person as he seemingly contended in paragraphs 5.5 and 5.7 of his
    written heads of argument. Mr Kamwi relies for the proposition that
    as a duly authorised organ of the appellant, he was entitled to
    represent the appellant on the Zimbabwean case of
    Lees
    Import and Export (Pty) Ltd v Zimbabwe Banking Corporation Ltd
    (supra)
    .









  1. In
    the
    Lees
    Import and Export
    case
    (
    supra)
    the Supreme Court of Zimbabwe had occasion to consider whether a
    rule of practice that a corporation had no right to be represented
    in the conduct of proceedings in Court except by an admitted legal
    practitioner breached the constitutionally guaranteed rights to the
    protection of the law and to a fair hearing. Gubbay, CJ who wrote
    the unanimous judgment of the Court traced the origin of the rule
    and found that the continued existence of the rule in modern times
    was justified on grounds including the concern that should lay
    persons be allowed to represent corporations in court proceedings,
    superior courts would be denied an opportunity to be served by legal
    practitioners who are subject to the rules of their profession; who
    are subject to a disciplinary code and who are familiar with the
    methods and scope of advocacy which are followed in the presentation
    of a court case. Gubbay, CJ described the other policy
    considerations justifying the adherence to the rule as follows:








Moreover,
such a prohibition gives effect to the fact that an unqualified and
inexperienced person may do more harm than good to the person he
assists; if only because his ignorance

of the law may support his opponent’s cause.







Yet
another observation is that, save for the rule,

corporate officers could cause impecunious companies to litigate
hopeless causes without fear of personal liability. Litigants in
person, through lack of experience, often pursue irrelevant matters
ad
nauseum,

unduly prolong proceedings and require indulgences from the court and
from their opponents to meet their non-professional approach.







Further,
it is pointed out that, whereas a litigant in person can make
decisions as to whether factual admissions and denials are to be
made, a company’s agent, even if validly appointed to act on
its behalf, from time to time would require to obtain authority to
make decisions in the course of the proceedings. Litigation would be
rendered very difficult if courts were concerned at every step as to
the authority of the person conducting the case to make the relevant
decision.”
12
(Reference to authorities omitted).












  1. Gubbay,
    CJ observed that some of these policy considerations may not be
    sufficiently persuasive as to warrant adherence to the rule. This
    is particularly the case when the policy considerations tend to deny
    audience to persons that are organs of the corporate entity. He
    pertinently remarked:








Certainly
the denial of the right of audience to persons who are organs of the
company, as distinct from merely agents, is criticised somewhat
cynically in Gower’s
Modern
Company Law

4
th
ed at 212 as appearing to ‘achieve no useful purpose other than
to protect the monopoly of barristers and solicitors.’”
13








  1. After a careful
    review of authorities,
    Gubbay,
    CJ concluded that the rule was too entrenched in many jurisdictions,
    for it to be impugned on the basis other than that its enforcement
    may infringe a constitutional right of access to the courts.
    14
    Yet what the decisions wherein the rule was consistently stated
    overlooked was the caveat placed on the rule, namely that the rule
    was subject to the discretionary powers of superior courts to
    regulate their proceedings subject to the legislative imperatives
    and in the interest of justice to allow a person who is not a legal
    practitioner to appear before court on behalf of a corporation.
    15









  1. Article 78(4) of
    the Namibian Constitution provides that "the Supreme Court and
    the High Court shall have the inherent jurisdiction …,
    including the

    power to regulate their own procedures…".









  1. Furthermore,
    section 37(2) of the Supreme Court Act, 1990 states:








"Nothing
in this section contained shall preclude the Supreme Court from
dealing with any matter before it, in such manner and on such
principles so as to do substantial justice and to perform its
functions and duties most effecially (
sic)."











The word "efficially" is
clearly a slip of the drafter's or legislator's pen.








  1. Counsel for the
    respondent in

    Lees
    Import and Export v Zimbabwe Banking Corporation
    (supra),
    argued that the right of audience was incapable of being vested in a
    juristic person insofar as the right to a fair hearing under
    subsection (9) of section 18 of the Constitution of Zimbabwe
    included of necessity the right to stand up and speak before
    superior courts, something that a natural person evidently is
    incapable of doing. To that end therefore, so it was submitted, the
    term “person” must be confined to natural persons.
    Counsel for the respondent in that case relied on the South African
    case of
    Hallowes
    v The Yacht

    Sweet Waters
    16
    where Hurt, J dealt with the contention by one Mr Labuschagne, an
    employee of the close corporation Hallowes, to the effect that as
    the corporation was indigent and therefore unable to procure the
    services of an advocate to represent it, a refusal by the court to
    hear him on behalf of the close corporation amounted to a denial of
    the corporation’s right to be heard as enshrined in section 22
    of the then South African interim Constitution Act, 1993.









  1. Disagreeing with
    the submission,
    Hurt,
    J stated the following in the passage that counsel for the
    respondent in the
    Lees
    Import
    case
    (
    supra)
    relied on for the proposition he advanced above:








Although
s 22 of the Constitution Act plainly includes, within its ambit, the
right of the ‘person’ to stand up in Court and argue his
(or her) own case, this (as has been said in numerous judgments on
the subject) is something which a juristic person is incapable of
doing
.
It follows, in my view, that the right to present one’s own
case is a right which cannot vest in a juristic person, since it is,
by nature, not a right which the juristic person can exercise. The
consequence is that, in terms of s 7(3) of the Constitution Act, this
is not one of the rights enshrined for juristic persons.”
17












  1. Gubbay,
    CJ found himself unable to agree with Hurt, J’s reasoning on
    this score and pertinently and aptly stated the following in
    levelling criticism at the rationale:








True,
a juristic person, being a purely legal concept, is incapable of
being physically present at any place and must always act through an
agent. This is what the corporation Hallowes sought to do through Mr
Labuschagne. It would seem, however, that Hurt J regarded a juristic
person as lacking the capacity to exercise the right to present its
own case before him, even if it were to do so through an organ or
alter
ego
.
This, I think, was to confuse the content of the right with the
manner of its exercise.”
18








  1. He made
    the following further observations:








If
the premise is correct that where the
alter
ego

of a company acts it is effectively the company itself which does so,
the substantive point at issue is whether it may elect to exercise
its right to a fair hearing under s 18(9) of the Constitution
(including its rights of audience) either through the agency of a
practising legal practitioner or by means of its
alter
ego
.







The
organic or
alter
ego

doctrine recognises that in some situations the acts, intentions and
knowledge of certain persons are the acts, intentions and knowledge
of the company. This is because the company is not a visible person.
It has no physical existence, no body parts or passion, no mind or
will of its own. It has ‘no body to kick and no soul to damn
and the only way of ascertaining its intentions is to find out what
its directors acting as such intended’ (
per
Centlivres CJ in
Commissioner
for Inland Revenue v Richmond Estates (Pty) Ltd
1956(1)
SA 602 (A) at 606 G). Such persons therefore are the directing mind
and will of the company and control what it does; the very
ego
and centre of its personality; its embodiment. They do not act or
think on behalf of or for the company as its agents. Rather they act
and know and form intentions through the
persona
of the company. See
H
L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd
[1956]
3 All ER 624 (CA) at 630 D - F;
Tesco
Supermarkets Ltd v Nattrass

[1971] 2 All ER 127 (HL) at 131h - j;
El
Ajou v Dollar Land Holdings plc and Another

[1994] 2 All ER 685 (CA) at 695g - 696a; and, to the same effect,
such South African authorities as
Levy
v Central Mining & Investment Corporation Ltd

1955(1) SA 141 (A) at 149 H -150 A;
Ensor
NO v Syfret’s Trust and Executor Company (Natal) Ltd

1976(3) SA 762 (N) at 763 E - H;
Harris
v Unihold (Pty) Ltd and Others
1981(3)
SA 144 (W) at 147 D.”
19












  1. In
    the consideration of the application by natural persons seeking to
    represent the corporation it is therefore of crucial importance to
    establish the status of such persons in order to determine whether
    they have the status and authority which in law makes their acts,
    intentions and knowledge those of the company so as to treat them as
    the company itself.









  1. In Lees
    Import and Export

    case (
    supra),
    Gubbay, CJ concluded that the common law rule offended against
    section 18(9) of the Constitution of Zimbabwe to the extent that it
    prohibited the duly authorised organ or
    alter
    ego
    of
    a company the right to appear in the person of the company before
    the superior courts of Zimbabwe. The right given to “every
    person” under subsection (1) and (9) of section 18 of the
    constitution of Zimbabwe includes within its reach a corporate body
    appearing through its
    alter
    ego
    .20









  1. The provisions
    in the Namibian Constitution equivalent to those contained in
    subsections (1) and (9) of section 18 of the Constitution of
    Zimbabwe are reflected in Articles 10 and 12(1)(a) of the Namibian
    Constitution.
    21
    Mr Kamwi submits, in effect, that if he is not granted permission to
    represent the appellant, the appellant would effectively be denied
    access to the Courts seeing that the appellant is allegedly
    impecunious and cannot afford the services of a legal practitioner.









  1. Counsel for the
    respondent in this appeal contend
    s
    that the case of
    Lees
    Import and Export (supra)

    is of no assistance to the appellant as counsel doubts if the word
    “persons” in the relevant provisions in the Namibian
    Constitution would include artificial persons. Counsel argued, in
    any event, that persons that are not legal practitioners should not
    be permitted to represent corporations in legal proceedings in the
    superior courts for the consideration that juristic persons who may
    find themselves in a state of impecuniousness may apply for legal
    aid, since so counsel contends, the Legal Aid Act, 1990 makes
    provision for application by corporate entities.









  1. These submissions
    are clearly untenable. In the first place it is difficult to
    comprehend the basis upon which counsel expressed doubt whether word
    “persons” in the Namibian Constitution would include
    artificial persons given the nature of the right accorded to
    “persons” in the two Articles. Evidently the right to
    equality before the law and to a fair trial are applicable to and
    can be enjoyed by natural persons. The Namibian Constitution
    employs the word “persons” which is wide enough to
    encompass artificial persons. Where a right in the Constitution is
    not accorded to “persons” the class of individuals to
    whom the right accrues is specified. One finds, for example, that
    “men and women” have the right to marry (Art 14);
    “children” have the right to a name, nationality etc.
    (Art 15); “citizens” have the right to participate in
    peaceful political activity (Art 17(1)). One searches in vain for a
    provision in the Legal Aid Act that explicitly states that natural
    persons may apply for legal aid as contended for by Mr Mokhatu. The
    right to so apply is accorded to “any person”, which
    expression I assume, without deciding, includes natural persons.









  1. In my respectful
    view, Gubbay, CJ’s analysis of the law and the conclusion he
    had arrived at in the
    Lees
    Import

    case (
    supra)
    as regards the denial of the right of a corporation to be
    represented by its
    alter
    ergo

    has application to the Namibian situation since the constitutional
    provisions that stood to be considered in that case are similar to
    those
    in
    casu

    and the value judgment that has to be made in both situations is
    essentially the same. I find his reasoning to be persuasive and in
    my respectful view should be followed by this Court.









  1. As
    previously alluded to, it is common cause that Mr Kamwi is the sole
    member of the appellant. To deny him audience in the circumstances
    where it is apparent that he is the
    alter
    ego

    of a small, one-person corporation that either prefers to litigate
    without legal representation or is unable to do so due to cost
    thereof would result in the appellant essentially being denied its
    constitutionally guaranteed right of access to the Court.
    22









  1. The interpretation
    giving access to the courts to small, one-person corporations is
    consistent
    with the constitutional jurisprudence of our Courts that entails a
    broad, liberal and purposive interpretation of the constitution so
    as to ensure that the spirit and tenor of the constitution “presides
    over and permeates the process of judicial interpretation and
    judicial discretion”.
    23









  1. I am of the
    opinion that Mr Kamwi was entitled to lodge the appeal on behalf of
    the appellant and that he should be allowed to represent the
    appellant in this appeal
    .









  1. I am fortified in
    this view by
    the
    approach of South African Courts in cases such as
    Navy
    Two CC v Industrial Zone Ltd
    24
    (reaffirming Wunsch, J’s reasoning in
    California
    Spice and Marinade (Pty) Ltd and Others
    (supra);
    Mittal
    Steel SA Ltd t/a Vereenging Steel v Pipechem CC
    (supra)
    as regards the application of the rule in that jurisdiction,
    viz.
    that in South Africa the rule is not inflexible and a court should
    be entitled, in an appropriate case and to avoid injustice, to allow
    at least a one-person company to be represented at court hearing by
    its
    alter
    ego
    .
    The court should weigh up the inconvenience caused to the court as
    a result of an unqualified person appearing before it against the
    injustice of a juristic person being denied access to the Courts and
    if a choice were to be made between a court enduring the
    inconvenience of having a corporation represented by its member or
    shareholder-director instead of a qualified practitioner and the
    injustice that could follow if the litigant is unable to appear or
    present its case at all, in an appropriate case, the court should
    choose to suffer the disadvantage.
    25









  1. In any event,
    as Gubbay, CJ observed in the
    Lees
    Import and Export

    case (
    supra)
    and which view I share, allowing an
    alter
    ego

    of a corporation to represent the entity does not at all undermine
    the rule of practice:








It
merely provides an exception to it
.
For it does not permit a company to appear before the superior
Courts through someone who is a mere director, officer, servant or
agent. … Companies, which cannot be said to be the
embodiment of any human body, will not qualify under s 18(9) because
no human being personifies the company ‘in person’. In
general, small companies should be able to avail themselves of the
exception.”
26












  1. Nor does the
    exception in my view offend against the provisions of section
    21(1)(c) of the Legal Practitioners Act, 1995 which as previously
    noted, criminalises specified activities if performed by persons who
    are not enrolled as legal practitioners. The section in no way
    implies that any person who does any of the prohibited acts with
    leave of Court in the exercise of its discretion to regulate its
    procedure “so as to do substantial justice” commits a
    crime. On the contrary, the section embodies an exception,
    viz.
    “in so far as it is authorised by any other law”, which
    includes both statute and common law. As Gubbay aptly stated in
    Lees
    Import and Export

    case (
    supra):








Under
the latter regime

[meaning common law], as already mentioned, the disability of a
company to appear in proceedings by its officer may be lifted under
the inherent power in Superior Courts to control their proceedings”.












  1. I conclude then
    that as the
    alter
    ego

    of a one-person close corporation and as previously mentioned, Mr
    Kamwi was entitled to lodge the appeal on behalf of the appellant
    and that he was properly allowed to argue the appeal for and on
    behalf of the appellant. It follows that the first preliminary
    point raised on behalf of the respondent must fail.









  1. Having found that
    the appellant is properly represented,
    I
    pass to consider the next point
    in
    limine,
    namely that the appellant should have obtained leave of the
    Court
    a quo

    or in the event of leave being refused by that Court, leave of this
    Court, to appeal. It is contended that the judgment or order
    appealed against squarely falls within the ambit of section 18(3) of
    the High Court Act, 1990 which reads as follows:








(3)
No judgment or order where the judgment or order sought to be
appealed from is an interlocutory order or
an
order as to costs only left by law to the discretion of the court
shall
be subject to appeal save with leave of the court which has given the
judgment or has made the order, or in the event of such leave to
appeal being refused, leave to appeal being granted by the Supreme
Court.” (Underlining supplied)












  1. It is common cause
    between the parties that no such leave had been sough
    t.









  1. The basic rule is
    that an award of costs is in the discretion of the court
    .
    In
    Kruger
    Bros & Wasserman v Ruskin,
    27
    a
    decision that has been consistently followed by South African
    Courts,

    Innes,
    CJ said the following in respect of this basic rule:








“… the
rule of our law is that all costs - unless expressly otherwise
enacted - are in the discretion of the Judge. His discretion must be
judicially exercised; but it cannot be challenged, taken alone and
apart from the main order, without his permission.”
28












  1. The learned author
    Cilliers also points out that even the general rule, namely that
    costs follow the event, is subject to the above overriding
    principle.
    29
    It seems to me that when a Court considers issues relating to
    whether or not to grant an order as to costs and the extent to which
    such costs are awarded, it exercises discretion. It appears also
    implicit in the appellant’s application in the court below for
    an order of costs in the wide sense that it essentially prayed for
    the court to exercise its discretion. It is true that the court
    a
    quo

    held that when dealing with an award of costs in favour of a lay
    litigant, a court must specify that such costs are limited to
    disbursements, but it seems to me that disbursements are but a genus
    of costs, the other being fees and that in specifying the extent of
    the costs to be paid to the lay litigant, the court is making “an
    order as to costs left to the discretion of the court.”









  1. Furthermore,
    as far as the order to stay the proceedings where previous costs
    remain unpaid is concerned, the making of or refusal to make such an
    order is undoubtedly discretionary. Cilliers, for example, makes
    the following statement in this regard:








In
Strydom
v Griffin Engineering Co

[1927 AD 552 at 553] the Appellate Division held that there is no
hard and fast rule as to when costs incurred in earlier proceedings
in a case must be paid before a litigant will be allowed to proceed
further. If the non-payment of the costs is vexatious, oppressive or
mala
fide
,
the court will not allow the litigant to proceed before paying the
earlier costs. If there is a mere inability to pay, the court may
grant its indulgence to the applicant; but even where an inability to
pay exists and where there is no bad faith or intention to act
vexatiously, the court is still entitled to look to all the
surrounding circumstances and
then
in its discretion

determine whether or not the earlier costs should be paid. This
statement, it was later held, seems to widen the principles upon
which the court will act so much that it can be said that the
matter
is entirely in the discretion of the court
.30
(Emphasis added)












  1. It follows
    then that leave of the Court
    a
    quo,

    to appeal against the order of costs in this case should have been
    sought and obtained and that in the event that leave was refused,
    leave of this court should have been obtained before the appellant
    could lodge the present appeal. I am unable to see that there is a
    real answer to the point
    in
    limine
    .
    It is certainly no answer to this preliminary point for Mr Kamwi to
    argue as he has done in oral argument, that the appellant did not
    know that he should have first obtained leave. As the
    representative of the appellant, he should have taken the trouble to
    familiarize himself with the relevant statutory provisions and rules
    of the Court the appellant chose to litigate in. It appears that
    the second point
    in
    limine

    is well-taken and must be upheld. The appeal stands to be struck
    from the roll.









  1. Mr Mokhatu also
    raised
    other
    points
    in
    limine

    relating to the record of appeal. The points, perhaps technical in
    nature, do not dispose of any issue or portion of issue in the
    appeal. As such I do not find it necessary to consider those points
    in
    limine
    for
    the purposes of this appeal.









  1. The finding that
    leave to appeal should have first been obtained effectively disposes
    of the appeal and in view of the fact that the appeal stands to be
    struck from the roll, it is not necessary to express any opinion on
    the merits of the case although we have heard full argument thereon.









  1. Accordingly the following order is
    made:








The appeal is struck from the roll
with costs.


























________________________


SHIVUTE
CJ


















I
concur.






















________________________


STRYDOM
AJA


































I
also concur.






















________________________



CHOMBA AJA










































ON
BEHALF OF THE APPELLANT
:






COUNSEL
ON BEHALF OF THE RESPONDENT
:






Instructed
by:




In Person







Mr. L.B. Mokhatu






Metcalfe
Legal Practitioners








1
Sub-rules (a), (b) and (c) of Rule 42 (1) of the
Rules of the High Court provides:


(a) A person instituting
any proceedings may at any time before the matter has been set down
and thereafter by consent of the parties or leave of the court
withdraw such proceedings, in any of which events he or she shall
deliver a notice of withdrawal and may embody in such notice a
consent to pay costs, and the taxing master shall tax such costs on
the request of the other party.


(b) A consent to pay
costs referred to in paragraph (a), shall have the effect of an
order of court for such costs.


(c) If no such consent to
pay costs is embodied in the notice of withdrawal, the other party
may apply to court on notice for an order for costs.”




2
There is no rule in the Rules of the Supreme Court equivalent to
rule 16(2). Mr Mokhatu submits correctly that rule 17 of the Rules
of the Supreme Court is therefore applicable in a situation where
there is no equivalent rule in the Rules of the Supreme Court. Rule
16(2)(a) of the Rules of the High Court reads:


“Any party
represented by counsel in any proceedings may at any time, subject
to the provisions of rule 40, terminate such counsel’s
authority to act for him or her, and thereafter act in person or
appoint another counsel to act for him or her therein, whereupon he
or she shall forthwith give notice to the registrar and to all other
parties of the termination of his or her former counsel’s
authority and if he or she has appointed a further counsel so to act
for him or her, of the latter’s name and address, and the
further counsel so appointed shall forthwith file with the registrar
a power of attorney authorizing him or her to so act.”






3
Which reads as follows:


“35. (1)
Notwithstanding the provisions of any other law, the parties in any
proceedings before the Supreme Court may appear in person or be
represented by any legal practitioner who –


(a) had the right of
audience in the former Supreme Court of South West Africa prior to
the date of Independence; or


(b) has the right of
audience in the High Court; or


(c) is granted the right
of audience in the Supreme Court in terms of any other law or the
rules of court; or


(d) is in respect of any
particular proceedings before the Supreme Court granted special
leave to appear in such proceedings by the Supreme Court on the
grounds of such person’s particular qualifications or the
special nature or circumstances of the relevant proceedings.”






4
1992 (2) SA 50 (WLD) at 53G-H




5
1956 (1) SA 346 (A)




6
1964 (1) SA 203 (T)




7
1977 (3) SA 448 (W)




8
At 54D




9
See Mittal Steel SA
t/a Vereenging Steel v Pipechem CC

2008 (1) SA 640 (CPD) at 643 for the current legal position
regarding the signing of pleadings in South African law. Also see

Fortune v Fortune
[1996] 2 All SA 128
(C). Also reported at 1996 (2) SA 550 (C)






10
See the collection of authorities to this effect
in
Lees Import and Export (Pvt) Ltd v
Zimbabwe Banking Corporation Ltd 1999
(4)
SA 1119 (ZSC) at 1125E
in fine
and the detailed exposition of the history of the rule in

California Spice and Marinade (Pty) Ltd and Others: In re Bankorp v
California Spice and Marinade (Pty) Ltd and Others; Fair O’rama
Property Investments CC and Others ; Tsaperas; and Tsaperas

[1997] 4 All SA 317 (W) where Wusch J came to the conclusion,
inter
alia,
that the rule had not been part
of the South African substantive common law, but that it had its
origins in the English common law.






11
Section 21(1)(c) as amended states:





“A
person who is not enrolled as a legal practitioner shall not –


(c) issue
out any summons or process or commence, carry on or defend any
action, suit or other proceeding in any court of law in the name of
or on behalf of any other person, except in so far as it is
authorised by any other law.”




12
At 1124 I in fine




13
At 1125D




14
At 1124E




15
At 1126B




16
1995 (2) SA 270 (D) [Also reported at 1995 (2)
BCLR 172]




17
At 278B - D




18
At 1128I – 1129A




19
At 1129B-F




20
At 1130H-I




21
Art 10 provides:


“(1) All persons
shall be equal before the law.


(2) No persons may be
discriminated against on the grounds of sex, race, colour, ethnic
origin, religion, creed or social or economic status.”





Art 12(1)(a) states:


“In the
determination of their civil rights and obligations or any criminal
charges against them, all persons shall be entitled to a fair and
public hearing by an independent, impartial and competent Court or
Tribunal established by law: provided that such Court or Tribunal
may exclude the press and/or the public from all or any part of the
trial for reasons of morals, the public order or national security,
as is necessary in a democratic society.”




22
See also Nationwide Detectives and Professional Practitioners CC
v Telecom
(unreported judgment of the High Court delivered on
14/08/2006) where Mtambanengwe, AJ came to the same conclusion.




23
S v Acheson 1991
NR 1 at 10A-B. See also, for example,
Government
of the Republic of Namibia v Cultura

2000 1993 328 at 340 B-C;
S v Kandovazu
1998 NR 1 (SC) at 3H;
Ekandjo-Imalwa v
The Law Society and Another; The Law Society of Namibia and Another
v Attorney General of the Republic of Namibia and Others

2003 NR 123 (HC) at 132F




24
[2006] 3 All SA 263 (SCA)




25
Cf. California
Spice and Marinade
case at 336i-j




26
At 1130I - 1131A




27
1918 AD 63 at 69




28
At 69. See also Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2) SA
1045 (SCA) at 1055F-G and other authorities cited by AC Cilliers,
Law of Costs
3
rd
Ed. Page 2-5 paragraph 2.03, footnote 1




29
Op. cit. Paragraph 2.03, page 2-5




30
Op. cit.
paragraph 6.04 at page 6-5