Court name
High Court Main Division
Case name
Kamwi v Standard Bank Namibia Ltd and Others
Media neutral citation
[2015] NAHCMD 4
Van Niekerk J




Case No A 101/2011



In the matter between:






Neutral citation: Kamwi v Standard
Bank Namibia Ltd (A101-2011) [2015] NAHCMD 8 (30 January 2015)


Heard: 10 April 2012

Delivered: 30 January 2015

Flynote: Practice - Costs –
Award of costs in favour of lay litigant, such costs limited to
disbursements reasonably incurred – Costs not argued before
award made – Lay litigant applying in terms of rule 44(1)(b)
for order to be amended because of alleged ambiguity to word
“disbursements” – Meaning of ‘costs’
and ‘disbursements’ discussed - No ambiguity found –
Application on basis of rule 44(1)(b) misplaced – Although
application brought under label of rule 44(1)(b) it is proper and
just to consider application on basis that applicant an aggrieved lay
litigant who had not previously been heard on costs – Other
bases on which application brought discussed and rejected –
Application dismissed.


The application is dismissed with



[1] On 13 May 2011 I made the following
order after hearing argument by the applicant, who appeared in
person, and the first respondent in an urgent application to stay a
warrant of execution obtained by the first respondent in respect of
an attachment of the applicant’s salary which had been paid
into a bank account held at a branch of the third respondent and
after having obtained a report by the taxing master:

“1. That the taxation on 4 August
2010 of the 1st respondent’s bill of costs is set aside.

2. That the warrant of execution dated
4 August 2010 is set aside.

3. That the attachment in 21 April 2011
of the amount of N$11 000.00 in the applicant’s bank account
held with the 3rd respondent is set aside.

4. That the 1st and 2nd respondent are
interdicted from attaching any of the applicant’s current or
future salary, earnings or emoluments other than by way of Rule
45(12)(j) of the Rules of Court.

5. That the 1st respondent pays the
costs of this application, such costs to be limited to disbursements
reasonably incurred.”

[2] In the notice of motion in the
urgent application, the applicant prayed that the respondents pay
“the costs of this application separately and individually.”
However, the second and third respondents did not oppose the
application and as the first respondent indicated in its answering
affidavit that the second respondent had acted upon its instructions,
the Court, in the exercise of its discretion, made a costs order
only against the first respondent.

[3] Subsequently the applicant filed an
application in terms of rule 44(1)(b) in which he prays that
paragraph 5 of the order dated 13 May 2011 be “rescinded or
varied as follows: ‘That the 1st Respondent is ordered to pay
costs of this application’.” The applicant further prays
for an order for “Costs of this application, only if opposed.”

[4] The applicant states in his
supporting affidavit that his bill of costs was considered by the
taxing master on 16 September 2011, but that there was disagreement
about the meaning of “disbursements”. When the argument
became heated, the taxing master postponed the matter pending the
applicant’s appeal, as I understand it, against the costs order
made on 13 May 2011. However, when the applicant researched the
matter he came to the conclusion that relief by way of rule 44(1)(b)
may be sought, hence the present application. Although this is not
included in the prayer, the applicant requests in his supporting
affidavit that the Court should, in the alternative, “interpret
the term ‘disbursements’ to give its true meaning as
defined by courts and dictionaries.”

[5] The applicant did not attach his
bill of costs, but the first respondent did so as part of its
answering affidavit. From the bill of costs it is apparent that the
applicant described the costs as ‘costs limited to
disbursements of time, labour, money or resources spent’. In
the bill of costs the applicant includes items for costs in relation
to photocopies made of various court documents with which the first
respondent does not take issue. However, the applicant also includes
items comprising his fees for “drafting and preparing” of
the notice of motion, affidavits, the certificate of urgency, the
return of service and various other court documents at a rate of N$1
900 per hour; for ‘perusing’ of various court documents
at a rate of N$200 per hour; for ‘appearance in Court’ at
a rate of N$3 750.00 per hour. He also claims for drawing the bill
of costs and attending the taxation.

[6] A motley combination of reasons for
the variation of the costs order sought are set out in the
applicant’s supporting affidavit as being, in summary and in
chronological sequence: (i) the order is unconstitutional as it
violates the applicant’s dignity and subjects him to cruel,
inhuman and degrading treatment, and also discriminates against the
applicant because he is not an admitted legal practitioner; (ii)
according to various international human rights instruments which
form part of Namibian law he is entitled to ‘just and
favourable’ remuneration for, it seems, the work the applicant
has done; (iii) that disbursements includes fees, which he is
entitled to charge, based on a decision of the Namibian Supreme
Court; (iv) a reliance on the Competition Act, 2003 (Act 2 of 2003);
(v) the practice of limiting the applicant to costs limited to
disbursements “has scourges of apartheid and racists (sic)
practices” which are prohibited by the Constitution; (vi) the
‘fundamental principle is that, as a general rule, the
applicant should be awarded his costs in full to indemnify him from
all expenses of time, effort, money and resources he spent in
defending himself from the respondent’s action.’

[7] The first respondent opposes the
application. Its stance is that there is no ambiguity, patent error
or omission that requires any variation or rescission by the Court in
terms of rule 44, but that the applicant is in fact seeking is to
appeal against the costs order.

[8] The parties before me are in
agreement that the Court heard no argument on costs when the urgent
application was heard on 13 May 2011 before the above order was made.

[9] Mr Phatela, who appeared on behalf
of the first respondent, raised a point in limine that the replying
affidavit is not in order as it is not signed. However, it became
clear during the hearing that the original is indeed signed, although
all the pages of the affidavit are not initialled by the applicant
and the commissioner of oaths. This is, of course, irregular, but in
the interests of moving the matter towards finality the irregularity
is condoned and the replying affidavit is accepted. I am swayed to
deal with the objection in this manner because of two main reasons.
Firstly, because of the time that has passed since the hearing of the
application. Secondly, because the deponent appeared in person to
argue on his own affidavit, which was served and filed on the same
day that it was commissioned. The first respondent did not point out
any discrepancies between the original affidavit filed and the copy
of the affidavit served on it, which means that the affidavit before
me is, in all probability, the affidavit which was presented to the
commissioner of oaths, but which both he and the applicant neglected
to initial.

[10] The applicant launched this
application under the banner of rule 44(1)(b). However, the
applicant also refers in his heads of argument to certain “exceptions
to rule 44(1)(b)” and poses the question whether the costs
order may be amended in terms of what he describes as “the well
recognized exceptions to Rule 44(1)(b).” In oral argument he
explained this by referring the Court to the commentary by Erasmus,
Superior Court Practice, B1-309 where the author states:

“The general principle is that
once a court has duly pronounced a final judgment or order, it has
itself no authority to correct, alter or supplement it. The reason
is that it thereupon becomes functus officio: its jurisdiction in the
case having been fully and finally exercised, its authority over the
subject-matter has ceased.”

[11] The author then states that the
(South African) Appellate Division has, however, recognised a number
of exceptions to this rule, which he sets out. These are the
exceptions listed by Trollip JA in Firestone SA (Pty) Ltd v Genticuro
AG 1977 (4) SA 298 (A) at 306H-8A as follows:

“There are, however, a few
exceptions to that rule which are mentioned in the old authorities
and have been authoritatively accepted by this Court. Thus, provided
the court is approached within a reasonable time of its pronouncing
the judgment or order, it may correct, alter, or supplement it in one
or more of the following cases:

(i)The principal judgment or order may
be supplemented in respect of accessory or consequential matters, for
example, costs or interest on the judgment debt, which the Court
overlooked or inadvertently omitted to grant (see the West Rand case,
supra) ………………….

(ii) The Court may clarify its judgment
or order, if, on a proper interpretation, the meaning thereof remains
obscure, ambiguous or otherwise uncertain, so as to give effect to
its true intention, provided it does not thereby alter "the
sense and substance" of the judgment or order (see the West Rand
case, supra at pp. 176, 186 - 7; Marks v Kotze, 1946 AD 29).


(iii) The Court may correct a clerical,
arithmetical or other error in it judgment or order so as to give
effect to its true intention (see, for example, Wessels & Co. v
De Beer, 1919 AD 172; Randfontein Estates Ltd. v Robinson, 1921 AD
515 D at p. 520; the West Rand case, supra at pp. 186 - 7). This
exception is confined to the mere correction of an error in
expressing the judgment or order; it does not extend to altering its
intended sense or substance. KOTZÉ, J.A., made this
distinction manifestly clear in the West Rand case, supra at pp. 186
- 7, when, with reference to the old authorities, he said:

"The Court can, however, declare
and interpret its own order or sentence, and likewise correct the
wording of it, by substituting more accurate or intelligent language
so long as the sense and substance of the sentence are in no way
affected by such correction; for to interpret or correct is held not
to be equivalent to altering or amending a definitive sentence once


(iv) Where counsel has argued the
merits and not the costs of a case (which nowadays often happens
since the question of costs may depend upon the ultimate decision on
the merits), but the Court, in granting judgment, also makes an order
concerning the costs, it may thereafter correct, alter or supplement
that order (see Estate Garlick's case, supra, 1934 AD 499). The
reason is (see pp. 503 - 5) that in such a case the Court is always
regarded as having made its original order "with the implied
understanding" that it is open to the mulcted party (or perhaps
any party "aggrieved" by the order - see p. 505) to be
subsequently heard on the appropriate order as to costs.

But, of course, if after having heard
the parties on the question of costs, either at the original hearing
or at a subsequent hearing (as happened in the present case), the
Court makes a final order for the costs, there can then be no such
"implied understanding"; and such an order is as immutable
(subject to the preceding exceptions) as any other final judgment or

[12] From the passage in Superior Court
Practice and the extract from Firestone SA (Pty) Ltd v Genticuro AG
(supra) it is clear that the applicant is mistaken in his
understanding that the exceptions he refers to are exceptions to rule

[13] Rule 44(1)(b) provides that the
Court “may, in addition to any other powers it may have, mero
motu or upon the application of any party affected, rescind or vary
an order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent of such ambiguity, error or
omission.” The declared basis on which the applicant is
seeking to vary the costs order because there is an “ambiguity”
in the order, which, he submitted, lies in the “misinterpretation”
of the term “disbursements”. The “misinterpretation”
occurred, it seems during the taxation, when counsel for the first
respondent and, it would seem, the taxing master, interpreted the
term differently to the applicant’s interpretation. I shall
return to this aspect at a later stage.

[14] Mr Phatela submitted that there is
no ambiguity to the word “disbursements” as used in the
costs order of 13 May 2011 and that the applicant’s reliance on
rule 44(1)(b) is misplaced. For reasons which will hopefully become
clear later in this judgment, I agree with this submission. However,
the first respondent had no quarrel with the rule set out by Trollip
JA in (iv) quoted para. [11] above. (See also Christian v
Metropolitan Life Namibia Retirement Annuity Fund and Others 2008 (2)
NR 753 (SC) at 773F). Clearly such an application need not be brought
in terms of rule 44(1)(b). As the parties are in agreement that this
Court did not hear argument on costs before making the order of 13
May 2011, the applicant would ordinarily be entitled to bring an
application to be heard on the matter (and for the costs order to be
amended) as an “aggrieved party”, because although he
prayed for costs in the first application, he was granted only costs
limited to disbursements reasonably incurred, an aspect about which
he, rightly or wrongly, feels himself aggrieved.

[15] In light hereof I think it would
be proper and just to also consider whether there is merit in the
application while ignoring the label of “rule 44(1)(b)”
which the applicant attached to it. In doing so there can be no
prejudice to the first respondent as it did not limit its opposing
allegations and arguments solely to a rule 44(1)(b) context.

[16] It seems to me that the main
source of the applicant’s discontent with the costs order lies
in his interpretation of para. [41] of the Supreme Court judgment in
Nationwide Detectives & Professional Practitioners CC v Standard
Bank of Namibia Ltd 2008 (1) NR 290 (SC) (also reported at 2008 (6)
SA 75 (Nm)). In this regard the applicant’s submission is that
“disbursements” include “fees” and not only
out of pocket expenses and further, that he is entitled to be
indemnified for the fees he charges for the work he did as litigant
to accomplish victory over the first respondent. The applicant
relies on a statement made by Shivute CJ when he stated in the
aforesaid paragraph that “disbursements are but a genus of
costs, the other being fees” (at 303F-G). The applicant went
further and submitted that the Supreme Court disagreed with the
judgment of the Court a quo in which it was held that when dealing
with an award of costs in favour of a lay litigant, a court should
specify that such costs are limited to disbursements.

[17] In my respectful view the
applicant completely misunderstands and misinterprets the meaning and
effect of the statement in the Supreme Court judgment. In order to
explain this it is necessary to commence with the judgment by
Heathcote AJ in the Court a quo reported as Nationwide Detectives &
Professional Practitioners CC v Standard Bank of Namibia Ltd 2007 (2)
NR 592 (HC). It is relevant to note that the applicant, who is not a
legal practitioner, appeared in that matter on behalf of the close
corporation (“Nationwide”), presumably with leave of the
Court. In that matter Nationwide sought an order for “costs”
against Standard Bank, which is also the first respondent in the
present matter. In that matter the Court dealt with the meaning of
the word “costs” in the context of costs orders and
stated in footnote 1:

“In the wide sense of the word
'costs' (expensae litis) are the expenses incurred by a litigant in
actions or other legal proceedings, and they consist of money due to
the solicitor for his fees and disbursements, the latter embracing
counsel's fees, stamps upon documents, sheriff's fees and witness
expenses. See PC Anders The Law of Costs in South Africa.”

[18] While this description uses
terminology such as “solicitor” and “counsel’s
fees” (in the sense of “advocate’s”) fees
which is no longer used since the advent of a fused legal profession
in Namibia, it is clear that the word “costs” means
expenses consisting of moneys due to a legal practitioner for his
fees and disbursements, the latter embracing instructed counsel’s
fees, stamps, sheriff’s fees and witness expenses.

[19] Heathcote AJ then dealt with three
questions which he considered necessary to determine for purposes of
that case, the first of which is relevant to the current matter.
This question is “Can the court award costs (in the wide sense
of the word) to a lay litigant”? The conclusion of the Court
is conveniently summarised as follows (at 599B-J):

“[18] In summary, I accordingly

When granting an order of costs in
favour of a lay litigant, the court should not simply use the word
'costs', but should rather make an order in terms of which the lay
litigant is awarded 'costs limited to actual disbursements reasonably
incurred'. This is so because, per recognised definition, the concept
of costs includes expenses for the labour of a qualified legal
practitioner, which can never be applicable to a lay litigant.

A lay litigant can indeed prepare a
bill of costs and present it to the Registrar for taxation. Although
there is no specific authorisation in Rule 70 for the Registrar to
tax a lay-litigant's bill of costs, he may do so by virtue of the
provisions of s 30(1) of the High Court Act, 1990.

A lay litigant is not entitled to claim
any fees for his labour, or loss of earning opportunity, in a bill of
costs. He cannot take instructions, charge for drafting, perusal or
any item in Schedule 6. (Those items can only be charged by virtue of
the fact that someone is an admitted legal practitioner.)

A lay litigant is only entitled to his
actual disbursement reasonably incurred. Such a disbursement may or
may not be the same as those prescribed where legal practitioners are
involved. That is for the registrar to determine. The concept 'actual
disbursement reasonably incurred' merely confirms that in some
instances actual expenses may also be unreasonably incurred.

The tariffs as determined in Schedule 6
of the Rules of Court in respect of reasonable disbursements were not
promulgated for purposes of taxing a lay litigant's bill of costs.
That is clear from the wording of rule 70 read with Schedule 6. What
must guide the registrar is compensation for actual expenses or
disbursements, reasonably incurred, and he may request proof that
such expenses or disbursements were indeed incurred. In doing so he
does not have a discretion as envisaged in rule 70(5). There is only
one test, and that is, 'what is the actual disbursement'. If the
answer is given and found to be reasonable, there is no basis upon
which the registrar can allow an amount higher than the actual
disbursement. However, if the actual disbursement is not reasonable,
the registrar can and should decrease the amount.

Lay litigants have every right to
litigate in person. But under no circumstances should it be allowed
for lay litigants to make a 'profit' on disbursements. The principle
is simple; taxation of a bill of costs should allow the lay litigant
to recoup his actual disbursements, reasonably incurred, and not to
make a living, or profit, out of lay litigation.”

[20] The Court eventually ordered that
(at 600D): “Respondent shall pay applicant's costs, limited to
actual disbursement reasonably incurred, in case No (P)I 1361/2006.”

[21] Nationwide appealed against this
decision. One of the points in limine considered by the Supreme
Court was whether Nationwide needed leave to appeal, it being common
cause that no such leave had been sought (303I; 303C). In this
context Shivute CJ stated the following (at 303C-G):

“[40] The basic rule is that an
award of costs is in the discretion of the court. In Kruger Bros &
Wasserman v Ruskin [1918 AD 63 at 69], a decision that has been
consistently followed by South African courts, Innes CJ said the
following in respect of this basic rule [at 69]:

. . . 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

[41] 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. 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'.” (emphasis supplied)

[22] Shivute CJ concluded that
Nationwide should have sought leave to appeal against the Court a
quo’s order of costs and, as this had not been done, he upheld
the point in limine and struck the appeal from the roll. Clearly the
Supreme Court did not consider the merits of the appeal and therefore
the applicant is incorrect in submitting that the Supreme Court
“disagreed” with the judgment of the Court a quo.

[23] Furthermore, when the learned
Chief Justice stated, “it seems to me that disbursements are
but a genus of costs, the other being fees”, he was
distinguishing between two genera, i.e. classes, or kinds, of costs,
the one being disbursements and the other being fees. In my
respectful view the reference to “fees” must be taken to
mean fees charged by a legal practitioner who is not acting as
instructed counsel, i.e. formerly known as “solicitor’s”
or “attorney’s” fees. Clearly the learned Chief
Justice did not state that disbursements include such fees. The
submission by the applicant to the contrary must therefore be

[24] I think it is also relevant that
the applicant, in his approach to the matter, ignores the essential
meaning of the word “disburse”, which is “to pay
out”, the noun being “disbursement” (Collins
Concise English Dictionary, 3rd ed. 1992), which is defined as “a
paying out; that which is paid” (Chambers Twentieth Century
Dictionary, New Edition 1972); and “money expended”
(Webster’s Comprehensive Reference Dictionary and
Encyclopedia). The applicant clearly did not make any
“disbursements” justifying the inclusion of the items in
his bill of costs as set out in para. [5] above.

[25] In this regard I also place
reliance on Hameva v Minister of Home Affairs, Namibia 1996 NR 380
(SC) (also reported at 1997 (2) SA 756 (Nms)) in which the Supreme
Court stated (at 385A-B) that the principle in Roman-Dutch
jurisdictions such as ours is as follows when it applied the
following dictum by Innes CJ in Texas Co (SA) Ltd v Cape Town
Municipality 1926 AD 467 at 488:

“Now costs are awarded to a
successful party in order to indemnify him for the expense to which
he has been put through having been unjustly compelled either to
initiate or to defend litigation as the case may be. . . . Speaking
generally, only amounts which the suitor has paid, or becomes liable
to pay, in connection with the due presentment of his case are
recoverable as costs.” (emphasis supplied)

[26] The applicant cited examples from
various cases to indicate that lay litigants acting in person have in
the past been awarded “costs” and that this Court should
also do so. However, it seems to me that, even in those cases such
lay litigants would, as a practical matter, in any event not have
been allowed to recoup their “fees” or “charges”
for litigious work done, but would have been limited to permissible
disbursements, precisely because they are not admitted legal
practitioners. In stating this I take note of what Heathcote AJ said
in his judgment, namely that “per recognised definition, the
concept of costs includes expenses for the labour of a qualified
legal practitioner, which can never be applicable to a lay litigant”
(at 599C-D).

[27] It seems to me that, apart from
the motivation cited by the learned acting judge for holding (at
599B-C) that, “[w]hen granting an order of costs in favour of a
lay litigant, the court should not simply use the word 'costs', but
should rather make an order in terms of which the lay litigant is
awarded 'costs limited to actual disbursements reasonably incurred'
”, there is another. The increase in civil litigation in which
lay persons appear in person (sometimes also referred to as
“self-actors”), or on behalf of one-person corporate
entities, has brought in its wake a need for greater clarity when
formulating costs orders to avoid, as far as possible, embroiling the
taxing master and the courts in time consuming and, frequently,
unnecessary disputes.

[28] There is also Supreme Court
authority for the approach suggested by Heathcote AJ. In Christian v
Metropolitan Life Namibia Retirement Annuity Fund (supra), the
applicant was a lay litigant appearing in person. In this regard
Maritz JA made a costs order in favour of the applicant (at 775D) for
payment of “the costs of the review, such costs to be limited
to disbursements reasonably incurred” after stating the
following (at 774I-775A):

“[45] The applicant is seeking
payment of 'all costs in this matter'. He has appeared in person.
Accordingly, the issue of costs does not arise except in the form of
such disbursements as he may have reasonably incurred in pursuing
this review.”

[29] I think it is clear from the above
discussion that there is no ambiguity in the costs order previously
made. I return at this stage, as indicated in para. [13] above to
the requirements of Rule 44(1)(b). It has been held that the
“ambiguity” required by rule 44(1)(b) is an ambiguity as
a result of which the judgment does not reflect the intention if the
judicial officer pronouncing it: in other words, the ambiguous
language must be attributable to the Court itself. (See Superior
Court Practice (supra) at B1-310) and the cases cited in footnote
11). As stated before, the alleged ambiguity arose in the mind of
the applicant when he appeared before the taxing master. The
ambiguity is not in the words used in the Court’s order. The
Court intended limiting the applicant’s costs to disbursements
reasonably incurred, and that is what it ordered.

[30] I now turn briefly to the
remaining bases upon which the applicant sought to persuade me to
amend the costs order. These are summarized in para. [6] supra of
this judgment.

[31] In regard to (i), the first part
of the complaint is simply incomprehensible. As to the charge that
he is discriminated against because he is not an admitted legal
practitioner, Heathcote AJ stated the following in Nationwide
Detectives & Professional Practitioners CC v Standard Bank of
Namibia Ltd (supra) (at 598J-599A), with which I am in respectful

“…..[E]ven if it be found
in future that a legal practitioner (acting in person) should be
treated in the same manner as a lay litigant, it would not follow
that the lay litigant should be put in a more advantageous position
as is the case now.”

[32] In regard to (ii), the relation
between the right relied on and the issue of entitlement to costs was
simply not demonstrated in the argument advanced by the applicant.

[33] In regard to (iv) the applicant
submitted, in effect that he is the victim of prohibited restrictive
practices placing him at a competitive disadvantage as contemplated
in section 23(1) read with section 23(3)(a) and (f) of the
Competition Act, 2003 (Act 2 of 2003). There is no merit in the
submission for at least the following reason. Section 23(1)
prohibits certain practices by “undertakings”. An
“undertaking” is defined as “any business carried
on for gain or reward …..”. The reason why the
applicant is not entitled to costs in the wide sense of the word has
nothing to do with any practice by any business.

[34] As far as (v) is concerned, the
rule that a lay litigant is limited to disbursements reasonably
incurred is not a “practice” as alleged, but has it
foundation in law. Furthermore, the charge that the rule “has
scourges of apartheid and racists (sic) practices” is simply

[35] As to (vi), the fundamental
principle as set out correctly appears in the Supreme Court judgment
in Hameva v Minister of Home Affairs, Namibia (supra), as dealt with
in para. [25] above.

[36] The conclusion is therefore that
there is no merit in the application, whether it is considered as a
rule 44(1)(b) application or as an ordinary application by an
aggrieved party to be heard on costs. The result is that the
application is dismissed with costs.

(Signed on the original)

K van Niekerk



For the applicant: In person

For the first respondent: Adv T C

Instr. by Andreas Vaatz &