NO.: I 1361/06
THE HIGH COURT OF NAMIBIA
the matter between:
PROFESSIONAL PRACTITIONERS CC
BANK OF NAMIBIA LTD
on: 26 October 2010
The applicant applied to this Court for leave to appeal to the
Supreme Court against the judgment of my brother Heathcote AJ (as he
then was), delivered on 10 August 2007.
respondent, Standard Bank Namibia, issued summons against the
applicant, Nationwide Detectives & Professional Practitioners CC.
Applicant opposed the summons, and before the matter could be heard,
respondent withdrew the action against applicant, but refused to
tender the costs of applicant. In order to recoup its 'costs', the
applicant applied to Court in terms of Rule 42(1)(c) for an order for
costs. That application was argued before Heathcote AJ. Mr. Alex
Kamwi appeared on behalf of the applicant and Mr. Mokhatu, on behalf
of the respondent. On 10 August 2007, Heathcote AJ delivered his
judgment. In his judgment Heathcote AJ ruled that applicant (being a
lay litigant) was only entitled to costs, but limited to actual
disbursement reasonably incurred.
Dissatisfied with that judgment, applicant appealed to the Supreme
Court. On 24 October 2008, the Supreme Court delivered its judgment
and struck the appeal from the roll with costs on the basis that the
applicant should have obtained leave from the High Court before it
could proceed with the appeal to the Supreme Court.
On 27 October 2008 the applicant filed a notice of application for
leave to appeal. In the notice the applicant also prayed that 'the
late noting of the leave to appeal be condoned'. The notice was
accompanied by an affidavit deposed to by Alex Kamwi. The respondent
apposed the application for leave to appeal. When the matter came
before me, Mr. Kamwi appeared on behalf of the applicant and Mr.
Mokhatu on behalf of the respondent.
Mr. Mokhatu raised two points in
that the applicant does not have locus
bring the application and failure to apply for condonation. In my
judgment I will first deal with the question of condonation and if I
come to the conclusion that a case has been made out, consider
whether applicant has locus
bring the application.
Mokhatu submitted that applicant should have filed a substantive
condonation application because the judgment against which it seeks
to appeal against was delivered on 10 August 2007 and its application
for leave to appeal is way out of time. Mr. Kamwi submitted that in
terms of Rule 27(3) the Court may on good cause shown (i.e. such as
shown by applicant) condone any non compliance of these Rules. It is
common cause that the judgment was delivered on 10 August 2007 and
the notice of application for leave to appeal was filed on 27 October
2008. In terms of Rule 49(1)(b), such an application for leave to
appeal should have been filed within 15 days after the judgment. That
rule further states that the 'court may, upon good cause shown,
extend the aforementioned period of 15 days'. Mr. Mokhatu correctly
submitted that there is no substantive application for condonation.
The only reference to 'condonation' is at p5 of Mr. Kamwi's affidavit
where he states:
the appealing to the Supreme Court without leave to appeal may
caused the delay to apply for leave to the High Court and as such the
applicant prays for condonation in this regard." In that very
same affidavit Mr. Kamwi describes himself as 'a qualified paralegal
professional', and legal advisor, 'certification C373 by Oxford
Academy, RSA', and he cannot claim that he was not familiar with the
Rules of this Court especially Rule 49(1)(b). Rule 49(1)(b) is
straight forward and there is nothing complicated in that Rule. Had
Mr. Kamwi taken the trouble to acquaint himself with Rule 49(1)(b),
he should have known that leave is required. That he did not do and
he cannot come to Court and claim ignorance of the Rules of this
As it was stated by the Supreme Court in: Nationwide
Detectives & Professional Practitioners CC v Standard Bank
Namibia Ltd 2008(1) NR 290SC at 304: (Shivute
CJ): "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".
only reason why he did not apply for leave to appeal appears to be
the fact that he thought that he could appeal directly to the Supreme
Court without first obtaining leave from the High Court. That is no
excuse and accordingly the Court cannot accept that as 'good cause'.
In conclusion, the applicant has not made out a case for condonation
for the late filing of the application for leave to appeal to the
Supreme Court. It is therefore unnecessary to deal with the question
whether applicant has locus
bring the application for leave to appeal.
Accordingly, the following order is made:
application for leave to appeal to the Supreme Court is struck from
the roll with costs.
BEHALF OF APPLICANT: Mr.
BEHALF OF RESPONDENTS: Mr.