Court name
High Court
Case number
3967 of 2009
Case name
Ndeitunga v Kavaongelwa
Media neutral citation
[2012] NAHC 319
Judge
Damaseb JP













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I 3967/2009








In the matter between:








LIEUTANT-GENERAL
SEBASTIAN HAITOTA NDEITUNGA ......................PLAINTIFF



and



PETER YA PETER
KAVAONGELWA
.......................................................DEFENDANT








Neutral citation:
Ndeitunga v Kavaongelwa (I 3967/2009 [2012] NAHCMD 82 (27
November 2012)








Coram: DAMASEB, JP








Heard: 31 October
2012



Delivered: 27
November 2012








Flynote: On
resumption of part-heard matter – Plaintiff’s counsel
making allegation of unethical conduct against defendant’s
counsel – Necessitating postponement of matter – Actions
attributable to defendant – Defendant liable for costs of
postponement.





ORDER





I make the following
order:








The defendant must show
cause, on the date to which the matter is next postponed, why the
following order should not be made final:









  1. The defendant shall pay
    the wasted costs occasioned by the postponement of the trial on 31
    October 2012, on party and party scale, including the costs of one
    instructed counsel.











JUDGMENT





Damaseb, JP:








[1] On 31 October 2012, I
postponed this matter to today. It was set down for continuation of
trial from 31 October 2012 to 1 November 2012, but at the
commencement of trial, counsel for the plaintiff, Mr Corbett, sought
and obtained my leave to call the plaintiff to the stand to bring to
my attention, under oath, alleged conduct by the defendant’s
new legal practitioner of record which Mr Corbett suggested amounted
to unethical and unprofessional conduct. The plaintiff testified and
was cross-examined by Mr Mbaeva who is the defendant’s new
legal practitioner to whom the alleged unethical and unprofessional
conduct is attributed. The record of this proceeding speaks for
itself and I do not propose to regurgitate the evidence adduced. In
essence, what emerges from the evidence that has been led on the
matter which plaintiff’s counsel wished to bring to my
attention is the following:









  1. Since the adjournment on
    22nd February 2012, the defendant appears to have fallen
    on hard times financially - resulting in the withdrawal of his
    erstwhile instructing and instructed counsel. He then enlisted the
    services of Mr Mbaeva;



  2. In the period since that
    adjournment, the defendant became aware of some information
    regarding the plaintiff which he (the defendant) believes is
    damaging to the credibility of the plaintiff and to plaintiff’s
    case. Whether or not the plaintiff should be recalled to be
    cross-examined on that material is an issue I have yet to
    adjudicate;



  3. On the defendant’s
    instructions, Mr Mbaeva initiated contact with the secretary to the
    cabinet, Mr Kapofi. It is a notorious fact that the secretary to the
    cabinet is head of the civil service and is the principal civil
    servant in the Office of the President of the Republic. It is
    undisputed that Mr Mbaeva conveyed to Mr Kapofi the information
    which the defendant considers damaging to the plaintiff’s
    credibility and case, and asked Mr Kapofi to persuade the plaintiff
    to withdraw the defamation claim against the defendant or face
    public embarrassment by being confronted in court with the alleged
    damaging information. Mr Kapofi appears to have then conveyed the
    threat to the plaintiff who, without going through his legal
    practitioner, directly contacted Mr Mbaeva.



  4. It is common cause that
    the plaintiff and Mr Mbaeva discussed the exchange that took place
    between Mr Mbaeva and Mr Kapofi. It is admitted by Mr Mbaeva that,
    in fact, he had a discussion with the plaintiff on the gist of the
    information in defendant’s possession about the plaintiff.
    There was some dispute about just exactly what transpired between Mr
    Mbaeva and the plaintiff; but I need not to resolve that dispute
    now.



  5. Following the discussion
    between Mr Mbaeva and the plaintiff, the former wrote directly to
    the plaintiff (and not through the plaintiff’s legal
    practitioner of record), making a settlement proposal. There is
    proof of written correspondence between Mr Mbaeva and the plaintiff
    directly, one of which (an e-mail dated 4 July 2012) is a request by
    the plaintiff for Mr Mbaeva to instead communicate via plaintiff’s
    legal practitioner of record. Even after that, a letter (dated 24
    July 2012), was written directly by Mr Mbaeva to the plaintiff,
    seeking settlement of the matter. It states:









We . . . wish
to advise that your Legal representative has been furnished with a
proposed settlement agreement which we enclose herewith for your
attention. Kindly peruse same if you have not done so already and let
us have your proposal therein. Our client now instructs that he will
not insist on the retraction in the newspapers and that a written
retraction to us under your hand would suffice
.’









  1. It is now common cause
    that Mr Mbaeva’s approach to Mr Kapofi was on defendant’s
    instructions. Mr Corbett had indicated that he intends to rely on
    that fact to have an adverse inference drawn against the defendant –
    considering that the gravamen of the present defamation claim is
    predicated on the assertion that the defendant sought improperly to
    beseech higher authority (including the President of the Republic)
    to have the plaintiff dismissed or suspended on account of the
    complaint the plaintiff made to the Magistrate’s Commission
    about the defendant and which resulted in the defendant’s
    dismissal from the magistracy. Mr Mbaeva’s admissions from the
    bar have therefore become evidential material against the defendant.
    This circumstance is not insignificant and may well undermine the
    defendant’s defence to the defamation claim given that the
    conduct attributed to him through Mr Mbaeva bears striking
    resemblance to the conduct which gave rise to the defamation claim
    now pending before me. The defendant has to make an election
    whether, in the circumstances, he desires to be represented by Mr
    Mbaeva in the future conduct of the case. My view is that it is
    undesirable for Mr Mbaeva to continue to represent the defendant for
    the reason that I have set out. The choice is not only of the
    defendant’s, but of Mr Mbaeva’s too. In making a
    decision on the matter, Mr Mbaeva must, as an officer of the court,
    be guided by the caution I have expressed.









[2] I had decided to
postpone the matter at the last sitting for two reasons:









  1. to afford Mr Mbaeva to
    carefully consider the allegations that have been made against him
    of unethical and unprofessional conduct – and if possible to
    seek independent legal advice; and



  2. for the defendant and Mr
    Mbaeva to consider whether it is appropriate for Mr Mbaeva to
    continue to represent the defendant in view of the fact that Mr
    Mbaeva’s admissions may well be relied on as evidential
    material against the defendant.









[3] I had come to the
conclusion then that it was undesirable for the trial to continue
before those two matters are resolved. I am still satisfied that it
was the proper course. The postponement was necessary and was
directly attributable to the defendant’s actions –
regardless of their relevance to the ultimate issue on which I
express no view one way or the other. That being the case, and prima
facie, I see no basis in principle why the wasted costs occasioned by
that postponement should not lie where they fall. I would accordingly
order that the defendant pay plaintiff’s wasted costs
occasioned by the postponement of the matter on 31 October 2012. I
see no reason why it should be on the scale other than ‘party
and party’ although it must include the costs of instructed
counsel.








[4] Given that I make
this order without having afforded the parties the opportunity to
address me thereon, I do so on a rule nisi basis and afford them the
opportunity to address me on the date to which I will next postpone
the matter, on any issue that may alter my provisional order.








[5] I make the following
order:








The defendant must show
cause, on the date to which the matter is next postponed, why the
following order should not be made final:









  1. The defendant shall pay
    the wasted costs occasioned by the postponement of the trial on
    31October 2012, on party and party scale, including the costs of one
    instructed counsel.





























_______________________



P T Damaseb



Judge-President






































APPEARANCES








PLAINTIFF: Mr Andrew
Corbett



Instructed by Grobler &
Co, Windhoek.








DEFENDANT: Mr Mbaeva



Of Mbaeva & Associates