Court name
High Court Main Division
Case number
HC-MD-CIV-MOT-GEN-2019/00095
Case name
The Law Society of Namibia v Kamwi
Media neutral citation
[2020] NAHCMD 301
Case summary:

Civil procedure – Contempt of court – Failure to comply with a court order – Requirements to be satisfied by the applicant and the respondent thereof – Court applied the principles laid down in Fakkie NO v CCII (Pty) Ltd – Found that the applicant has shown that the order of court, the respondent is said to have violated was made – Applicant has shown that such order is known by the respondent as he was party to the proceedings leading to the decision, and appeared in person – Applicant has shown that the respondent did not comply with the court order – Court fou

Headnote and holding:

This is an opposed application in which the applicant seeks an order declaring that the respondent is in contempt of the order of this court granted on 9 March 2005 under Case No. A 130/2004 – In terms of that order, the respondent is interdicted and restrained from practicing or in any manner hold himself out as or pretend to be a legal practitioner; the respondent is interdicted from making use of the title Legal Practitioner, Para-legal, Para-legal Practitioner, Professional Practitioner or any word, name, title designation or description implying or tending to induce the believe that he is a legal practitioner or para-legal practitioner or is recognized by law as such; the respondent is interdicted and prohibited from issuing out any summons or process to commence, carry on or defend any action, suit or other proceedings in any court of law in the name or on behalf of any other person; the respondent is interdicted and prohibited from performing any act which, in terms of the Legal Practitioners Act No. 15 of 1995, or any regulation made under Section 81(2)(d) of that Act, he is prohibited from performing – The court found that the applicant has shown that the order of court the respondent is said to have violated was made; that such order was known by the respondent as he was party to the proceedings that led to the issuing of the order, appeared in person, and that the respondent did not comply with the order – The court found that those facts were established beyond reasonable doubt – It follows that the respondent bore the evidential burden in relation to the requisites of willfulness and mala fide – The court found that the respondent has failed to advance evidence establishing a reasonable doubt as to these elements; therefore contempt of court has been established beyond reasonable doubt – The court found that the respondent willfully and with mala fide did not comply with the court order and his conduct is contemptuous of that court order.

  •  

    Not Reportable

    REPUBLIC OF NAMIBIA

    HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

    JUDGMENT

     

    Case no: HC-MD-CIV-MOT-GEN-2019/00095

     

    In the matter between:

     

    THE LAW SOCIETY OF NAMIBIA                                                                       APPLICANT

     

    and

     

    ALEX MABUKU KAMWI KAMWI                                                                    RESPONDENT

     

    Neutral citation:     The Law Society of Namibia v Kamwi (HC-MD-CIV-MOT-GEN-2019/00095) [2020] NAHCMD 301 (21 July 2020)

     

    Coram:          MILLER AJ

    Heard:            16 June 2020

    Delivered:     21 July 2020

     


    ORDER


     

    1.    The respondent is in contempt of the order of this court granted on 9 March 2005 under Case No. A 130/2004.

     

    2.    The respondent is convicted for contempt of court.

     

    3.    The respondent should pay the costs of this application on a punitive scale as between attorney and client, which costs should include that of one instructing and one instructed counsel.

     

    4.    The matter is postponed to a date to be arranged with the Chief Registrar to determine what sanction, if any should be imposed.

     


    JUDGMENT


     

    MILLER AJ:

     

    [1]        Before me is an application brought by The Law Society of Namibia, who is a juristic person established in terms of section 40 of the Legal Practitioners Act 15 of 1995 as amended, brought on 26 March 2020 for an order:

     

    (a)     Declaring that respondent is in contempt of the order of this court granted on 9 March 2005 under Case No. A 130/2004.

     

    (b)     Convicting the respondent for contempt of court.

     

    (c)     Sentencing the respondent to a fine or such other punishment as the court may deem fit.

     

    (d)     Ordering the respondent to pay the costs of this application on a punitive scale as between attorney and client, which costs should include that of one instructing and one instructed counsel.

     

    [2]        In terms of section 41 of the Legal Practitioner’s Act 15 of 1995, some of the objectives of The Law Society of Namibia are.[1] to maintain and enhance the standards of conduct and integrity of all members of the legal profession; to present the views of the legal profession; to further the development of law as an instrument of social engineering and social justice; to encourage and promote efficiency in and responsibility in relation to the profession; to promote the education of lawyers at all stages and levels, with particular emphasis on the broadening of such education; to make recommendations to interested parties in relation to the training of lawyers; to define and enforce correct and uniform practice and discipline among members; to give all necessary assistance to the effective implementation of any legal aid scheme established and governed by or under any law[2]; to promote social intercourse among members; to consider and deal with all matters affecting the professional interest of members; to co-operate with the representative bodies of other professional bodies; to promote applied research in the development of the law and participate in the reform of the law by the Government and other agencies; to seek the enhancement of the Rule of Law and promote the protection of human rights; to represent, protect and assist members with regard to their conditions of practice and related matters.[3]

     

    [3]        On 9 March 2020, The Law Society of Namibia (applicant herein) obtained an interdict under Case No. (P) A 130/2004, against the respondent, Mr Alex Mabuku Kamwi Kamwi who was the first respondent in that matter, Nationwide Detectives and Professional Practitioners CC who was the second respondent, and Central Investigation Services CC who was the third respondent in that matter.

     

    [4]        In that interdict, Honorable Ms Justice Gibson ordered:

     

    1.   That the respondents are interdicted and restrained from practicing or in any manner hold themselves out as or pretending to be legal practitioners.

    2.   That the first respondent (Mr Alex Mabuku Kamwi Kamwi) is interdicted from making use of the title Legal Practitioner, Para-legal, Para-legal Practitioner, Professional Practitioner or any word, name, title designation or description implying or tending to induce the believe that he (and more specifically the first respondent) is a legal practitioner or para-legal practitioner or is recognized by law as such.

     

    3.   That the first respondent (Mr Alex Mabuku Kamwi Kamwi) is interdicted and prohibited from issuing out any summons or process to commence, carry on or defend any action, suit or other proceedings in any court of law in the name or on behalf of any other person.

     

    4.   That the first respondent (Mr Alex Mabuku Kamwi Kamwi) is interdicted and prohibited from performing any act which, in terms of the Legal Practitioners Act (15 of 1995), or any regulation made under section 81(2)(d) of that Act, he is prohibited from performing.

     

    [5]        The respondent appealed to the Supreme Court against the order of Ms Justice Gibson and on 20 October 2009 the Honourable Mr Justice Mtambanengwe AJA dismissed the respondent’s appeal and ordered him to pay the costs of the appeal.[4] After his appeal was dismissed, he approached the Supreme Court again in terms of Article 81 of the Namibian Constitution, asking that the earlier decision of the Supreme Court handed down on 20 October 2009 be reversed. On 1 December 2010 the respondent’s application in terms of Article 81 of the Namibian Constitution was dismissed by the Supreme Court.[5]

     

    Points in limine

     

    [6]        The respondent submitted that he is being subjected to double jeopardy, and that The Law Society should not seek the same remedy through criminal proceedings and through civil proceedings.

     

    [7]        Ms Garbers-Kirsten submitted that the applicant did not come to court with dirty hands as it is claimed by the respondent. In relation to the issue of double jeopardy that is being raised by the respondent; that if the High Court holds him in contempt, he will still face criminal charges in the Regional Court, she argued that there is no need for the respondent to raise double jeopardy because he said that the criminal charges in the Regional Court have been withdrawn. She argued that double jeopardy does not apply to the present case.

     

    [8]        According to the founding affidavit of Ms Margaretha Steinmann that supported this application, the respondent is facing charges of contravention of section 21 and 22 of the Legal Practitioners Act 15 of 1995 registered under CR No. 337/05/2004 and CR No. 1078/09/2005, alternatively charges of fraud in the Regional Magistrate’s Court, while the current application by The Law Society of Namibia is for an order declaring that the respondent is in contempt of the order of the High Court granted on 9 March 2005 under Case No. A 130/ 2004.

     

    [9]        In S v Manale,[6] Judge Usiku stated that ‘in essence the state has wide powers to charge any person with the commission of any offence, whether by common or statutory law. This court is alive to the principle of double jeopardy which demands that an accused should not be punished twice for the same crime, however, such cannot be said in the current case’.

     

    [10]      In the present case also, it cannot be said that the respondent will be punished twice for the same offence. The current proceedings seeking an order declaring that the respondent is in contempt of an order of this court and the charges he is facing in the Regional Court for contravention of the Legal Practitioners Act 15 of 1995 are different from each other. The proceedings in the Regional Magistrate’s Court are of criminal nature, while the matter before court in the present case is civil. The fact that they are different from each means that the respondent will not consequently be punished for the same offence in case he is found guilty of contravening the relevant sections of the Legal Practitioners Act 15 of 1995 or found to be in contempt of the court order of this Court. On that basis double jeopardy does not come into play in the present matter. In fact, the respondent stated in his answering affidavit that the charges in the Regional Magistrate’s Court under CR No. 337/05/2004 and CR No. 1078/09/2005 were withdrawn, including all information and statements associated with the two cases under those CR numbers, and that such withdrawal is final and permanent. For those reasons double jeopardy does not apply to the present matter and that point in limine is dismissed.

     

    [11]      The respondent submitted that the matter must be struck from the roll with costs for non-joinder, because The Law Society did not join the close corporation; Kamwi Legal Advisor Incorporated. He argued that the close corporation should have been joined as the first respondent and he as the second respondent, but The Law Society has failed to join the close corporation and that might not be fair for the close corporation, when they have made reference to it in their papers. He argued that failure to join the close corporation is fatal, because the close corporation is an interested party doing business that will be affected by the order sought by The Law Society, because the order might prejudice the close corporation. He added that the close corporation has direct and substantial interests in the matter, and failure to do so should result in the application being dismissed because non-joinder is not a small issue, and that all parties should have been brought to court to answer for themselves.

     

    [12]      In reply to the issue of non-joinder, Ms Garbers-Kirsten replied that the present matter is against the respondent himself, and that there is no obligation on The Law Society to join the close corporation as a respondent in this matter.

     

    [13]      In the case of Amunyela v Amunyela and Another[7] it was held that the law relating to joinder can be said to be well settled now, namely that a party who has a direct and substantial interest in a matter has to be cited and served with the proceedings in issue, failing which an injustice may well be perpetrated. But in the case of Maseko v The Commissioner of Police and Another[8], the court expressed itself on the issue of the propriety of dismissing an application on the basis of non-joinder by stating in para 12 that ‘I am inclined to the view that the Court should not ordinarily dismiss the proceedings in the event it finds that a necessary party has not been joined. What the Court ought to do in my opinion, unless it is properly satisfied that the party has waived its right to be joined, is to stay the proceedings or order that the said party be joined and that the notice of the proceedings is properly brought to the attention of such a party. In the event, the Court would not proceed with the matter but would postpone or stay the same and make an appropriate order as to the costs which have been occasioned by the postponement or stay, necessitated by the joinder’. In para 15, the court continued to say that ‘the decision to order a dismissal of the proceedings pursuant to non-joinder, it would appear to me, with respect, to be harsh in the extreme’. In para 16, the court said that ‘a dismissal, on the other hand, heralds more serious consequences. In the event, the erring party has to launch new proceedings altogether and serving same on all the affected parties. Furthermore, the erring party will be invariably mulcted with an adverse costs order as a result of the dismissal of the as opposed to wasted costs. Dismissal of the application with the concomitant adverse costs is in any event onerous and one that may tend to discourage the guilty party in respect of the non-joinder when that party may otherwise have a legitimate right to vindicate its rights’. Those are all the factors and principles that should be taken into consideration in assessing the point in limine as raised by the respondent in the present case.

     

    [14]      In Standard Bank v Maletzky[9] the court expressed itself on the question of joinder of parties by stating that ‘the failure to join necessary parties is a fundamental flaw in the proceedings and will inevitably prejudice both the three respondents but also the administration of justice itself’. In Amunyela v Amunyela and Another[10] the court expressed itself on the same question of non-joinder of parties by stating that ‘it has been stated also that when it comes to joinder of parties, there are two classes. Joinder as of necessity and joinder as a matter of convenience.[11] In the former case, failure to join a party may be held to be fatal’.

     

    [15]      The proceedings against the respondent are from an order against him which is an action in persona. The other parties are in fact the alter ego of the respondent. In my view, they do not have a direct and substantial interest in the proceedings against the respondent.

     

    [16]      The present application is for a court order declaring that the respondent is in contempt of the order of this court granted on 9 March 2005 under Case No. A 130/2004. That order contains parts that were directed towards the respondent in his personal capacity. In the case in which that order was issued, the respondent was the first respondent; the second respondent was Nationwide Detectives and Professional Practitioners CC and the third respondent Central Investigation Services CC. There is no obligation upon The Law Society of Namibia to join Kamwi Legal Advisor Incorporated and Alex Kamwi Law Agents as contented by the respondent because the order in question was issued against the respondent. It is not necessary for The Law Society to add the close corporation because the order that the applicant is seeking is against the respondent in his personal capacity, and it is for contempt of a court order, and that contempt can only be assessed and determined to the extent that the order in question applies to the respondent in his personal capacity. The allegations before court are in relation to the alleged conduct of the respondent that contravenes the issued order, which interdicts the respondent, amongst other respondents. The close corporation, Kamwi Legal Advisor Incorporated does not have direct and substantial interests in the present matter, and in any event the court would not have dismissed the application for non-joinder. On that basis, this point in limine is untenable and is dismissed.

     

    Submissions by the applicant

     

    [17]      Ms Garbers-Kirsten who appeared on behalf of the applicant argued that the interdict issued by Ms Justice Gibson on 9 March 2005 was against the respondent in this matter and other members of the close corporations. She submitted that the interdict contains specific parts that are against the respondent in this matter, and read those parts to the court. She submitted that the respondent brought applications before the High Court to be admitted as a legal practitioner or paralegal but those applications were refused[12] because he did not comply with sections 4 and 5 of the Legal Practitioners Act 15 of 1995.[13]

     

    [18]      Ms Garbers-Kirsten argued that the judgment and the order of Honorable Ms Justice Gibson exists and there is no denial from the respondent in that regard, and further submitted that the respondent admits to the allegations and to contravening the order of Judge Gibson in his answering affidavit. She submitted that the respondent did not use the word legal practitioner but he used the words ‘to represent people in court’ and added that in his answering affidavit the respondent has put himself in the same category of legal practitioners.[14]

     

    [19]      Ms Garbers-Kirsten submitted that the respondent consulted with a certain Ms Anna-Liisa Ndahambelela Nekwaya and charged legal fees,[15] and that by doing so, he did what legal practitioners do, and that is in contravention of the court order of Honourable Ms Justice Gibson. Ms Nekwaya then approached The Law Society of Namibia. She submitted that the respondent promised to represent Ms Nekwaya as a legal practitioner and acted on behalf of Ms Nekwaya and her close corporation. She submitted that the respondent acted as a legal practitioner and Ms Nekwaya believed him.

     

    [20]      Ms Garbers-Kirsten further submitted that the respondent advertised on Facebook as a legal practitioner,[16] using the scale of justice and posted his picture wearing robes, and referred to himself as a lawyer.[17] She added that the respondent has also referred to himself as a Notary Public, when a Notary Public is an admitted legal practitioner in terms of the Legal Practitioners Act 15 of 1995. She argued that by doing so, the respondent has acted in contravention of the court order.

     

    [21]      She further submitted that the respondent was willful and mala fide by conducting himself in such a manner that is in contravention of the court order. She submitted that the respondent is saying that he is not in contravention of the court order because it was neutralized by two other judgments but the court order remains intact until when it is abolished. She submitted that the respondent brought an application to be admitted as a legal practitioner after the order in question was issued and after the alleged neutralization of the interdict, and that application was refused. She added that the respondent is twisting the words of the Judge in the Supreme Court by saying that the Supreme Court held him to the same standard such as that of a legal practitioner when the judge made a comment about his good command of the English language. She submitted that his excuse is lame, and that it is vexatious and frivolous for him to rely upon the judgments he is relying upon. He is not relying upon the ratio decidendi of the court.

     

    [22]      She submitted that Judge Angula did not declare the respondent a legal practitioner, and argued that one cannot become an admitted legal practitioner by judicial pronouncement but an application should be made to the High Court in terms of the Legal Practitioners Act 15 of 1995. Therefore he cannot rely upon the words of the Supreme Court to claim to be a legal practitioner.

     

    [23]      She argued that the respondent does not fall under any of the grounds upon which a person may be excused from contempt of court, therefore the court must reject his defense as untenable because there is no bona fide on his part and he understands the judgment.

     

    [24]      Lastly, she argued that The Law Society has proved all the elements of contempt of court beyond reasonable doubt, and prayed for the order as contained in the notice of motion. She concluded that the respondent acted willfully, deliberately and with mala fide, and that his defense is vexatious and frivolous.

     

    Submissions by the respondent

     

    [25]      The respondent, Mr Kamwi submitted that he has referred to himself as a qualified private investigator, para-legal professional and legal advisor but did not refer to himself as a legal practitioner, and argued that the Supreme Court has acknowledged or recognized that.

     

    [26]      He further submitted that he holds a Bachelor of Laws, which is prescribed by the laws of the country, and that qualification should be equated to an LLB from the University of Namibia (UNAM).

     

    [27]      He further submitted that the applicant did not contradict the content of Annexure ‘AK 12’ (Company Resolution). He argued that he acted on behalf of the company; therefore he is not in contravention of the interdict, because he acted as authorized in terms of the Companies Act. He submitted that The Law Society did not prove that he acted outside the authority he has in terms of that Annexure. He further added that section 21(1) of the Legal Practitioners Act 15 of 1995 has an exception for his company, but The Law Society of Namibia did not mention that section, thereby not being truthful to the court. He argued that The Law Society should have relied upon the whole Act.

     

    [28]      He argued that the Supreme Court upheld his submissions that he is a qualified investigator, legal advisor and para-legal professional. He submitted that he did not claim anywhere to be an admitted legal practitioner.

     

    [29]      With regard to the order sought by the applicant, the respondent submitted that he will apply the ratio decidendi of the Supreme Court, which acknowledged and recognized him as a qualified legal advisor and investigator. He argued that the interdiction order does not apply to him because he is recognized as such by the Supreme Court, and that the ratio decidendi of the Supreme Court has neutralized the effect of the interdiction of the High Court.

     

    [30]      He further submitted that he graduated as a student of law and wore a robe, pictures were taken and they were posted on Facebook, but that is not in contradiction of the court order. He submitted that The Law Society then took his picture and pasted it on an advert that they want to use in court. He submitted that he did not paste his picture on the advert being presented by The Law Society before court and that he did not admit to have defied the court order because the order was neutralized by the ratio decidendi of the Supreme Court.

     

    [31]      With regard to the affidavit of Ms Nekwaya, he submitted that he did not tell Ms Nekwaya that he is an admitted legal practitioner. He submitted that Ms Nekwaya was referred to him by the High Court for legal advice, and that he did not charge her. He submitted that the High Court told her that he cannot represent him because he is not a legal practitioner but a legal advisor. In conclusion, he submitted that he did not say that he is a legal practitioner and he did not deal with anyone behind the scene.

     

    Court analysis and findings

     

    [32] Fakkie v CCII (Pty) Ltd,[18] the court said that that ‘the civil contempt procedure was a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny; that the respondent in such proceedings is not an accused person, but he or she is entitled to analogous protections appropriate to motion proceedings; the test for contempt of court is that an applicant must prove the elements of contempt of court beyond reasonable doubt; once the applicant has proved the order, its service or notice to the respondent as well as non-compliance, the respondent bears an evidential burden in relation to willfulness and mala fides. Should the respondent fail to advance evidence establishing a reasonable doubt as to whether non-compliance was willful and mala fide, contempt will have been established beyond reasonable doubt. A declarator and other remedies are still available to a civil applicant on a balance of probabilities’.[19]

     

    [33] Teachers Union of Namibia v Namibia National Teachers Union & Others[20] the court stated that ‘in line with the approach in Fakkie, the appellant has shown that the order of court the respondents are said to have violated was made; that such order was known by the first respondent as it was party to its making, and that the first respondent did not comply with the order. These facts were established beyond reasonable doubt. It follows that the respondents bore the evidential burden in relation to the requisites of willfulness and mala fide. Should the respondents fail to advance evidence establishing a reasonable doubt as to these elements, contempt of court will have been established beyond reasonable doubt. It is necessary therefore to return to the consideration of how the parties have dealt with the factual matrix of the dispute’.

     

    [34]      By applying the principles set out in Fakkie v CCII (Pty) Ltd[21] to the present case, the court has to decide whether The Law Society of Namibia as the applicant has proved the elements of contempt of court beyond reasonable doubt and whether Mr Alex Mabuku Kamwi Kamwi as a respondent has shown that he was not willful and mala fide in disobeying the court order.

     

    [35]      It is not in dispute in the present case that a court order exists and that the respondent is aware of its existence, taking into consideration the fact that the respondent represented himself in the proceedings that led to that order. In terms of that order, the respondent is interdicted and restrained from practicing or in any manner hold himself out as or pretend to be a legal practitioner; the respondent is interdicted from making use of the title Legal Practitioner, Para-legal, Para-legal Practitioner, Professional Practitioner or any word, name, title designation or description implying or tending to induce the believe that he is a legal practitioner or para-legal practitioner or is recognized by law as such; the respondent is interdicted and prohibited from issuing out any summons or process to commence, carry on or defend any action, suit or other proceedings in any court of law in the name or on behalf of any other person; the respondent is interdicted and prohibited from performing any act which, in terms of the Legal Practitioners Act (15 of 1995), or any regulation made under section 81(2)(d) of that Act, he is prohibited from performing.

     

    [36]      It is apparent from the affidavit of Ms Steinmann, which was used in support of this application, the report of Dr Hugo Meyer van den Berg and the papers filed by the respondent before this court that he persists to refer to himself as ‘a qualified private investigator, para-legal professional and a qualified legal adviser, most exceedingly profound, a qualified lawyer. . .’[22] which is in defiance of the court order which prohibits the respondent from making use of the title Legal Practitioner, Para-legal, Para-legal Practitioner, Professional Practitioner or any word, name, title designation or description implying or tending to induce the believe that he is a legal practitioner or para-legal practitioner or is recognized by law as such.

     

    [37]      According to the affidavit of Ms Steinmann and the complaint of Ms Nekwaya to The Law Society of Namibia, the respondent pretended to be a lawyer to Ms Nekwaya when she was looking for a lawyer that can deal with business cases. Ms Nekwaya met the respondent in Windhoek, and they exchanged cellphone numbers. Then the respondent later called Ms Nekwaya, and they met on 7 May 2018 for a meeting where she briefed the respondent about the case she has before the High Court. On 8 May 2018, Ms Nekwaya signed what purports to be an instruction form under the heading ‘Kamwi Legal Advisor Inc.’ in which she gave the case number, her personal information, and at the section named ‘instruction in detail and precise’ she stated that ‘I ask/instruct you Mr Alex Kamwi to represent me in this matter. To do all on my behalf. I do hereby allow, agree and ratify that all what you will do for me by virtue of this present’.

     

    [38]      The respondent told Ms Nekwaya that he can handle the case if she pays an amount of N$1 500 for consultation or opening of a file. She sent him the money through e-wallet and the respondent gave him a cash receipt with his signature, with a reason for payment indicated as ‘for consultation’. On 7 May 2018, the respondent informed Ms Nekwaya that he will be able to help her if she wants to take him as a lawyer to represent her in the High Court. Ms Nekwaya then prepared a file with information about her High Court case which she handed over to the respondent on 11 May 2018. On that day the respondent went through the file and told Ms Nekwaya that he will charge her N$15 000 excluding the amount of N$1 500 which she has already paid for opening a file. On that day he told her to pay a deposit of N$5 000 in order for him to start working on the case. While in that meeting she sent him the requested N$5 000 through e-wallet and the respondent gave her a cash receipt with his signature, with the reason for payment indicated as ‘services rendering, balance outstanding is N$10 000’.

     

    [39]      The respondent then proceeded to draft a notice to defend and a plea on behalf of Oshikango Supermarket CC, of which Ms Nekwaya is a sole member. Oshikango Supermarket CC was a defendant in a case before the High Court of Namibia. The respondent also drafted a notice in terms of Rule 44 of the High Court Rules. Rule 44(1) of the High Court rules says that ‘where a legal practitioner acts on behalf of a party in any proceedings, the legal practitioner must notify all other parties of his or her name and address’ and that is what the respondent did. The court order states that the respondent is interdicted and prohibited from issuing out any summons or process to commence, carry on or defend any action, suit or other proceedings in any court of law in the name or on behalf of any other person.

     

    [40]      On the 18th May 2018, the respondent asked Ms Nekwaya to go with him to the High Court in order to send the plea through ejustice, and she had to sign the plea herself, which she did not expect to do, and I find that is because she believed that she has a lawyer that would act on her behalf in that regard. Shikongo Law Chambers who were representing the plaintiff (Development Bank of Namibia) in that case before the High Court then informed Ms Nekwaya that the respondent is not an admitted legal practitioner of the High Court, therefore he cannot represent her close corporation, Oshikango Supermarket CC, and that they will proceed to communicate with her directly, but not through the respondent. She was aggrieved, and went to ask at the High Court if the respondent can represent her close corporation in the proceedings, and the answer was negative. Aggrieved by the conduct of the respondent, Ms Nekwaya then approached The Law Society of Namibia with a complaint. On 23 June 2018, the respondent sent a reminder to Ms Nekwaya to pay an outstanding amount of N$5 000 at the end of June 2018 and that another amount should be paid at the end of July 2018, which she has refused to pay. Ms Nekwaya believed that the respondent is a legal practitioner and acted under that impression as created by the respondent. It appears that had the respondent informed or made it clear to Ms Nekwaya that he is not an admitted legal practitioner of the High Court, she would not have attended the consultations and made the payments she did and would not have proceeded with further consultations.

     

    [41]      According to the respondent’s answering affidavit, he stated that Ms Nekwaya called him on 6 May 2018 inquiring whether he can help her in her case with Development Bank of Namibia. They agreed to meet on 7 May 2018. He then informed her that he will only assist her in drafting papers because though he is ‘a qualified legal adviser, and a lawyer now’, he will not appear on her behalf in court. He informed her that she will do so in person, though he may be present to assist her further should she have any further problem. He submitted that Ms Nekwaya did not mention in her affidavit that he introduced himself to her as a legal practitioner and this makes the applicant to have no complaint against him. He further stated in his answering affidavit that ‘in so far as I am a lawyer now, I am entitled to enjoy the rights, privileges and immunities necessary in the independent exercise of my duties as a lawyer just as other lawyers I rank the same with enjoy the same without victimization’. He further submitted that Ms Nekwaya was looking for a lawyer, and a court has stated that he is a lawyer now, and as a lawyer now he is a person trained and qualified (certified and licensed) to advice people about the law to represent them in court, and to write legal documents, therefore there was no pretense he is held as such by the court.

     

    [42]      It is apparent from the respondent’s answering affidavit that he continues to insist in defiance of the court order that he is ‘a person trained and qualified (certified or licensed) to advice people about the law and to represent them in court, and to write legal documents’. The respondent knows or ought to know very well that he is not authorized by the relevant laws of the country to represent people in court, considering the fact that he brought applications before the High Court for him to be admitted as a legal practitioner but those applications were refused by the Court. As it stands, he does not have authority to practice law.

     

    [43]      It is apparent from the complaint of Ms Nekwaya that the respondent pretended and held himself out as a legal practitioner and promised to represent her close corporation in court. Ms Nekwaya believed him and dealt with him under the impression that she was dealing with a legal practitioner that is duly admitted and able to represent her close corporation in court. It also appears that she paid the respondent under the belief that she is paying a legal practitioner that will draft papers on behalf of her close corporation, until when she was informed by Shikongo Law Chambers that they will communicate with her directly, but not through the respondent because he does not have locus standi and cannot represent Ms Nekwaya’s close corporation in the High Court case. From her complaint, it appears that she would not have paid the respondent a cent, had she known from the onset that the respondent is not allowed to practice law in Namibia.

     

    [44]      It is apparent from the founding affidavit of Ms Steinmann and the report of Dr Van den Berg that the respondent through Facebook advertisements and other activities thereon continued after the court order was issued to hold out and pretend to the public that he is recognized by the court to be a legal practitioner, and on that Facebook platform, Kamwi Legal Advisor Incorporated, of which the respondent is a sole member continues to be described as a niche practice firm which is rich in legal expertise, and the respondent uses a scale of justice as its official logo. Underneath a picture in which he is wearing black robes on that Facebook account, he states that the Supreme Court of Namibia has in a recent reportable case of Kamwi v Hannelie Duvenhage and Another[23] accepted and held that he is, amongst others, a qualified legal advisor and that in another case of Kamwi v Law Society of Namibia,[24] he alleges that the Deputy Judge-President is on record of the High Court proceedings mechanically recorded to have held that he is a lawyer now. The respondent continues to advance the same contention in his answering affidavit and heads of argument. I find that the respondent is deliberately distorting and misinterpreting the quote he relies on from that judgment[25] and the quote he relies on from the mechanical recording of the court proceedings[26] to suit his version and to try to justify his conduct that is in contravention of the court order. That contention is untenable.

     

    [45]      It has been further submitted that on the same Facebook account, the respondent has listed what he refers to as partially won court cases, partially won Supreme Court cases and fully won cases. He also states that he has expertise of civil litigation, criminal litigation, labour litigation, legal advice, debt collection and disciplinary hearings. The respondent describes himself on that Facebook account as ‘a lawyer whose ability and competencies ranks the same as that of other legal practitioners . . .’ He also refers to himself as a notary public. A notary public is someone appointed in terms of section 86 of the Legal Practitioners Act 15 of 1995. By doing so, the respondent is implying that he is a legal practitioner.

     

    [46]      In his answering affidavit, the respondent submitted that he took the picture in question wearing black robes when he graduated in 2008 and did not join the picture on the letterhead of the company, Kamwi Legal Advisor Incorporated because it cannot fit on the letterhead. He submitted that it was the act of the applicant to paste the picture on the letter head in order to mislead the court to believe that he did so. The respondent stated that as an independent consultancy legal advisory company, certified and authorized in terms of the Companies Act 28 of 2004 to perform the said activities it is not an offence and that there is no contempt of the interdiction order of 9 March 2005. He further contended that Kamwi Legal Advisor is not regulated by the Legal Practitioners Act 15 of 1995 but the Companies Act 28 of 2004, and that there is no provision in the Companies Act 28 of 2004 prohibiting his company from advertising its services. I find that with that contention, the respondent is trying to justify his conduct, but the question is not whether the respondent is conducting his purported business in terms of the Companies Act 28 of 2004 or the Legal Practitioners Act 15 of 1995, but whether his conduct is in contravention of the court order in question.

     

    [47]      In the case of Endunde v The Chairperson of the Okavango East Communal Land Board,[27] Honourable Mr Justice Masuku referred to the remarks regarding the status of court orders that were made in a Kenyan case of Dr Fred Mutiangi, the Secretary to Cabinet, Ministry of Interior and Coordination of National Government v Miguna Miguna and Others[28] in which it was held that ‘when courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issued ex cathrada, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, the upholding of the rule of law are not mere platitudes but present realities’.

     

    [48]      The respondent does not deny the existence of a court order that prohibits him from pretending or holding out as a legal practitioner amongst other prohibitions, but he is contending that the effects of the interdiction order of the High Court as granted by Honourable Ms Justice Gibson has been neutralized by various alleged pronouncements of the High Court and the Supreme Court he has included in his papers, but the respondent ought to know by now that one does not become an admitted legal practitioner by judicial pronouncements only, without an application being brought before a competent court of law in terms of the Legal Practitioners Act 15 of 1995. The interdict issued by Honourable Ms Justice Gibson remains intact, valid and binding upon the respondent and other respondents in the case in which that order was given, unless or until when that order has be abolished, set aside or revised by the same court or the Supreme Court of Namibia. The respondent deliberately chose to act on a self-created and unreasonable assumption that the court order has been neutralized by the High Court and the Supreme Court by distorting the words of the two courts, in an attempt to justify his continued conduct that is in defiance of the court order, knowing very well that he is not complying with a valid court order.

     

    [49]      I find that the applicant has shown that the order of court the respondent is said to have violated was made; that such order was known by the respondent as he was party to the proceedings that led to the issuing of the order, he appeared in person, and that the respondent did not comply with the order. These facts were established beyond reasonable doubt.

     

    [50]      I find that the respondent willfully and with mala fide did not comply with the court order and his conduct is contemptuous of that court order.

     

    [51]      The parties did not address me on the sentence I should impose. It follows that; particularly the respondent should be given an opportunity to do so. In the circumstances I will issue the following order:

     

    1.    The respondent is in contempt of the order of this court granted on 9 March 2005 under Case No. A 130/2004.

     

    2.    The respondent is convicted for contempt of court.

     

    3.    The respondent should pay the costs of this application on a punitive scale as between attorney and client, which costs should include that of one instructing and one instructed counsel.

     

    4.    The matter is postponed to a date to be arranged with the Chief Registrar to determine what sanction, if any should be imposed.

     

     

    ________________

    K Miller

    Acting Judge

     

    APPEARANCES:

     

    APPLICANT:                   H GARBERS-KIRSTEN

                                            Instructed by Köpplinger Boltman Legal Practitioners,

                                            Windhoek

     

    RESPONDENT:             A M KAMWI

                                           In Person

                                           Windhoek

     

     

     


    [1] Section 41(a) - (n), Legal Practitioners Act 15 of 1995.

    [2] Section 41(h), Legal Practitioners Act 15 of 1995.

    [3] Section 41(a) - (n), Legal Practitioners Act 15 of 1995.

    [4] Ex-parte Kamwi; In re: Kamwi v Law Society of Namibia, SA 21/2008 dated 20 October 2009 [2009] NASC 13 (PER Mtambanengwe JA, Shivute CJ and Strydom AJA concurring).

    [5] Case No. SCA 3/2009.

    [6] 2019 (1) NR 191 (HC) par 22.

    [7] Amunyela v Amunyela and Another (HC-MD-CIV-MOT-GEN-2017/00154) [2019] NAHCMD 146 (14 May 2019).

    [8] (1778/09) [2011] SZHC 66 (17 January 2011).

    [9] Standard Bank v Maletzky 2015 (3) NR753 (SC) para [54].

    [10] Amunyela v Amunyela and Another (HC-MD-CIV-MOT-GEN-2017/00154) [2019] NAHCMD 146 (14 May 2019).

    [11] Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, Vol I, Juta & Co., 5th ed, 2009 at p 208.

    [12] Kamwi v The Law Society of Namibia (A 2/2016) [2016] NAHCMD 319 (19 October 2016).

    [13] Section 4 of the Legal Practitioners Act 15 of 1995; persons qualified to be admitted as legal practitioners and application for admission.

    Section 5 of the Legal Practitioners Act 15 of 1995; academic and professional qualifications.

    [14] Page 214-215 of the court bundle.

    [15] MS11, page 144 of the court bundle.

    [16] Page 153 of the court bundle.

    [17] Page 156 of the court bundle.

    [18] Fakkie v CCII (Pty) Ltd 2006 (4) SA 326 (SCA).

    [19] Paragraph 42.

    [20] Teachers Union of Namibia v Namibia National Teachers Union & Others (SA 26/2019) [2020] NASC 8 (7 May 2020).

    [21] Fakkie v CCII (Pty) Ltd 2006 (4) SA 326 (SCA).

    [22] Para 17 of the respondent’s answering affidavit.

    1. Kamwi v Hannelie Duvenhage and Another (SA 22/2008) (2009) NASC 16 (13 November 2009).

    [24] Kamwi v Law Society of Namibia, Case A 2/2016, heard on 21 June 2016.

    1. Kamwi v Hannelie Duvenhage and Another (SA 22/2008) (2009) NASC 16 (13 November 2009). The respondent is relying upon paragraph 9 and 10 amongst others, which read as follows: “[9] I interpose here to note that, although sub-rule (2) contemplates that an application from the Bar may be made “at the hearing of an appeal”, I have assumed in favour of the applicant – without deciding – that the Court may also permit an informal application to be made at the hearing of an application to reinstate an appeal which had been struck for want of security. Given the fact that the applicant is litigating in person, I have also considered whether the Court should not mero motu condone his failure to obtain the respondents’ consent as a precondition to an informal application under sub rule (2) for the leave to prosecute his appeal as a poor person. I am mindful that when it comes to lay litigants, courts are disinclined to hold them “to the same standard of accuracy, skill and precision in the presentation of their case required of lawyers”.[25] For the reasons that follow, I do not consider it to be in the interests of justice to adopt such a course.

    [10] The applicant, it must be noted at the outset, refers to himself as "a qualified private investigator; paralegal professional; and a qualified legal adviser". To that extent, at least, the less exacting approach normally adopted by the courts to pleadings and proceedings involving lay litigants, must be qualified in his instance. His command and comprehension of the English language, as noted by my Brother Chomba at the hearing, is good. Having quoted from, relied on and expressly referred to Rule 4 in argument and various other proceedings preceding the hearing, he could not possibly claim that he was ignorant of its provisions. Yet, he did not ask the respondents' consent to prosecute his appeal in forma pauperis. He must have known full well that, without securing their consent, he should petition for leave to proceed in that manner. This too, he did not do. He must also have known that, to the extent that he had not complied with the procedures and time limits[25] prescribed in Rule 4, he should apply for condonation. He did not.”

    [26] Kamwi v Law Society of Namibia, Case A 2/2016, heard on 21 June 2016. The respondent submitted that while he was still making representations in those proceedings, the Court intervened and said: “You cannot give evidence now. You are a lawyer now.”

    [27] Endunde v The Chairperson of the Okavango East Communal Land Board (HC-MD-CIVMOT-GEN-2016/00384) [2018] NAHCMD 113 (27 April 2018) at para 2.

    [28] Civil Application No. 1 of 2017 (UR 1/2018).