Court name
High Court
Case name
Kamwi v MB De Klerk-Associates
Media neutral citation
[2012] NAHC 113
Judge
Parker J





CASE NO







Not
Reportable’








CASE NO.: I 3086/2006













IN THE HIGH COURT OF
NAMIBIA













In the matter between:








ALEX MABUKU KAMWI
…..............................................................................Applicant








and








M B DE KLERK &
ASSOCIATES
…............................................................
Respondent













CORAM:
PARKER J








Heard on: 2012 April 3



Delivered on: 2012 May 8



_________________________________________________________________








JUDGMENT



_________________________________________________________________


PARKER
J
: [1] In this matter the applicant per se has brought
an application by notice of motion in which the applicant prays for
the relief set out in the notice of motion. The application is based
on rule 44(1)(b) of the Rules of the High Court (hereinafter referred
to as ‘Rules’), and the applicant prays to this Court for
an order to rescind or vary para (b) of the order made by the Court
(per Marcus AJ) on 11 December 2009 (‘the 11 December
2009 order’). The second respondent (‘the respondent’),
represented by Mr Horn, has moved to reject the rule 44(1)(b)
application which, as I have said previously, concerns only para (b)
of the 11 December 2009 order.






[2]
The basis of the application is this: according to the applicant,
there is in the 11 December 2009 order an ambiguity, or a patent
error or an omission because in para (b) of that order the Court made
the order that the ‘Respondent is ordered to pay the costs of
this application, such costs to be limited to disbursements
reasonably incurred’. That being the case it follows inexorably
and reasonably that the burden of this Court is simply to decide
whether the applicant has succeeded in establishing that there is in
para (b) of the 11 December 2009 order ‘an ambiguity, or a
patent error or an omission’ within the meaning of rule
44(1)(b) of the Rules in virtue of the fact that this Court is not
sitting – and cannot sit – as an appeal court to
determine an appeal from the decision of the Court presided over by
Marcus AJ.






[3]
It follows that what remains to be done is to consider the
interpretation of rule 44(1)(b) and apply it against para (b) of the
11 December 2009 order to see if the applicant has established that
there is in para (b) of that order ‘an ambiguity, or a patent
error or an omission’ within the meaning of that rule. In this
regard, I note that there is nothing in the founding affidavit that
establishes – even remotely – that there is an ambiguity,
or a patent error or an omission in the 11 December 2009 order. All
that the applicant has done is to give reasons why, in his
contention, the 11 December 2009 order should be rescinded or varied.
Those reasons are based on (1) the Namibian Constitution, (2) the
‘International Bill of Human Rights’, (3) The Supreme
Court judgment of 24 October 2008 in Nationwide Detectives and
Professional Practitioners CC v Standard Bank of Namibia Limited

Case No. SA 32/2007 (Unreported) (‘the Supreme Court judgment’)
where in para 41 thereof the Supreme Court held – among others
which I shall refer to in due course – that ‘disbursements
are but a genus of costs’, (4) the Competition Act, 2003 (Act
No. 2 of 2003), (5) ‘the practice of limiting the applicant to
costs limited to disbursements has scourges of apartheid and a
racists (sic) practices which are expressly condemned by our
Constitution’, and (6) the ‘fundamental principle is
that, as a general rule, the applicant should be awarded his costs in
full to indemnify him from all the expenses of time, effort, money
and resources he spent in defending himself from the respondent’s
action’. The applicant has set out all that in (1) to (6)
which, in my opinion, point irrefragably to the applicant’s
contention that Marcus AJ took a wrong view of the law when he
ordered in the 11 December 2009 order that the respondent is ‘to
pay the costs of this application, such costs to be limited to
disbursements reasonably incurred’. But the applicant has
failed completely to establish in what manner that order contains ‘an
ambiguity, or a patent error or omission’, within the meaning
of rule 44(1)(b) of the Rules that could entitle this Court to
rescind or vary that order. A fortiori, para (b) of the 11
December 2009 order is in full compliance with the high authority of
Shivute CJ, who wrote the unanimous judgment of the Court, in
Nationwide Detective and Professional Practitioners CC v Standard
Bank of Namibia Ltd
supra (the Supreme Court judgment), which the
applicant referred to me, in the following succinct passage in para
41 thereof:







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”.’






[Italicized
for emphasis]






[4]
Thus, with respect, I fail to see how the applicant can seriously
argue that para (b) of the 11 December 2009 order contains ‘an
ambiguity, or a patent error or omission’ within the meaning of
rule 44(1)(b) of the Rules when what Marcus AJ ordered in para (b) of
the order is exactly what the law, as laid down by the Supreme Court
in Nationwide Detectives and Professional Practitioners CC v
Standard Bank of Namibia Ltd
, expects the learned Acting Judge to
order.






[5]
For the aforegoing, I find that the applicant has failed to establish
that there is ‘an ambiguity, or a patent error or an omission’
in the 11 December 2009 order; and I do not find an ambiguity, or a
patent error or an omission that can be attributed to Marcus AJ. I
accept Mr Horn’s submission on the point that in terms of rule
44(1)(b) of Rules the alleged ambiguity or patent error or omission
must be attributable to the judge who wrote the judgment and who made
the order. It follows that the application must fail, and it fails.






[6]
For the sake of completeness I must reiterate the point that this
proceeding concerns only an application brought in terms of rule
44(1)(b) of the Rules. It is, therefore, no burden of this Court in
the present proceeding to look at what the taxing master did or did
not do; only to say that the ratio dicidendi of the Supreme
Court judgment is that (1) when dealing with an award of costs in
favour of a lay litigant, a court must specify that such costs are
limited to disbursements and (2) since disbursements are but a genus
of costs, the other being fee, when 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, and so the Taxing
Master has the power to tax ‘the extent of costs to be paid to
the lay litigant’, being disbursements.






[7]
As to the question of costs in the present proceeding; Mr Horn
submitted that the applicant must be mulcted in costs on the scale as
between attorney (legal practitioner) and own client. The reason why,
in Mr Horn’s submission, such costs should be made is that the
applicant was the appellant in Nationwide Detectives and
Professional Practitioners CC v Standard Bank of Namibia Ltd

supra and so he knows very well about the judgment and so he should
not have brought the present application in which he seeks the
rescission or varying of para (b) of the 11 December 2009 order; and
having done so, despite this knowledge, so Mr Horn argued this Court
should mulct the applicant with a special costs order.






[8]
The applicant’s response is this. He had brought this
application because in his mind there was a judgment of the Court
(per Mtambanengwe AJ, as he then was), delivered on 29 March
2007, Telecom Namibia Ltd v Nationwide Detectives &
Professional Practitioners CC and Alex Mabuku Kamwi
(ie. the
applicant in the present proceeding) Case No. (P) I 3348/2006
(Unreported) (‘the Mtambanengwe judgment’) which
contradicts the judgment by the Court (per Heathcote AJ) in
Nationwide Detectives and Professional Practitioner CC v Standard
Bank of Namibia Ltd
2007 (2) NR 592 (‘the Heathcote
judgment’). With the greatest deference to the applicant, the
applicant’s argument has not one iota of merit. The Supreme
Court judgment, as Mr Horn submits, does not overrule the Heathcote
judgment. Indeed, Shivute CJ approved the Heathcote judgment, but
added a rider which I have set out as part of the ratio of the
Supreme Court judgment. Moreover, the Mtambanengwe judgment did not
order the payment of any costs: the leaned judge made the order that
‘the costs of this application are to be costs in the action’,
and so I fail to see in what manner the Mtambanengwe judgment
contradicts the Heathcote judgment; and what is more, the Supreme
Court judgment, which is apropos in the instant proceeding, has
settled the law and has resolved any real or perceived contradiction
in different High Court judgments respecting the extent of costs that
a lay litigant is entitled to.






[9]
Indeed, in my opinion, it is the misreading of the aforementioned two
High Court judgments (i.e. The Mtambanengwe judgment and the
Heathcote judgment) and the Supreme Court judgment by the applicant,
a lay litigant, that has resulted in the applicant bringing the
present application which is singularly lacking in merit. Thus, the
applicant, labouring under a misapprehension of the ratio of
the aforementioned superior court judgments, brought the present
application. The applicant, being a lay litigant acting per se,
may have been misadvised and misguided. But I do not think the
applicant’s conduct in holding on intrepidly tenaciously to a
position that has no wraith of merit and was therefore doomed to fail
has reached the bar set by the high authority of Strydom CJ in
Namibia Grape–Growers and Exporters v Ministry of Mines and
Energy
2004 NR 194 (SC) (followed by the Court in the recent case
of Andreas Vaatz v The Municipality of Windhoek Case No. A
28/2010 (Unreported)) to justify the award of costs on the scale as
between attorney (legal practitioner) and own client.






[10]
For all the aforegoing ratiocination and conclusions I make the
following order:






The
application is dismissed with costs on the scale as between party and
party.
















________________



PARKER J























ON BEHALF OF THE
APPLICANT:
Mr A M Kamwi



In person












COUNSEL ON BEHALF OF
THE RESPONDENT:



Mr S Horn








Instructed by: MB
De Klerk & Associates