Court name
High Court
Case number
HC-MD-CIV-ACT-DEL- 1337 of 2019
Case name
Kamwi v Law Society of Namibia
Media neutral citation
[2021] NAHC 196
Judge
Oosthuizen J

“ANNEXURE 11”

 

IN THE HIGH COURT OF NAMIBIA

 

Case Title: Alex Mabuku Kamwi Kamwi vs Law Society of Namibia and 1 Another

 

Case No:

HC-MD-CIV-ACT-DEL-2019/01337

Division of Court:

High Court, Main Division

Heard before:

Honourable Justice Herman Oosthuizen

Date of hearing:

23 February 2021

Delivered on:

30 April 2021

Neutral citation:  Kamwi v Law Society of Namibia (HC-MD-CIV-ACT-DEL-2019/01337) [2021] NAHCMD 196 (30 April 2021).

 

Result on merits:      Plaintiff Unsuccessful.

                                    Defendants successful.

The order:

 

Having heard Mr Kamwi, plaintiff (in person) and Mr Van Greunen, counsel for the defendants -

 

IT IS ORDERED THAT:

 

[1]        Plaintiff's Rule 18(4) application for setting aside and variation of order 3 of Judge Tomassi's court order of 19 October 2020, is dismissed.

 

[2]        Plaintiff's application to court to decide and dispose summarily the allegations of fact not denied or objected to in his amended particulars of claim filed on 2 November 2020, is dismissed.

 

[3]        Plaintiff's amended particulars of claim purporting to be in compliance with order 2 of Judge Tomassi's court order of 19 October 2020 together with the variations thereto, filed on
2 November 2020, is struck on the basis that plaintiff was under automatic bar in terms of Rule 54(3) of the Rules of Court for the filing thereof.

 

[4]        In the result there is no current particulars of claim founding the action of the plaintiff.

 

[5]        Plaintiff is refused any opportunity to support his purported claim any further.

 

[6]        Plaintiff is ordered to pay the costs of the defendants, uncapped, which shall include the costs of one instructing and one instructed counsel on a party and party scale.

 

[7]        Plaintiff shall not institute any claim against any or both the defendants unless the costs order (order 3 of 19 October 2020) and this costs order are paid fully.

 

[8]        The case is finalised and removed from the roll.

 

Reasons:

 

[1]        On 19 October 2020 the Honourable Justice Tomassi, J ordered that:

 

‛1.        The amended particulars of claim dated 12 June 2020 is hereby set aside;

 

2.         The plaintiff must comply with the court order of 09 June 2020 by filing the amended particulars of claim filed on 20 June 2019 together with annexure MCW5 attached to the amended particulars of claim dated 12 June 2020 on or before 30 October 2020;

 

3.         The plaintiff must pay the defendants' cost of one instructing and one instructed counsel limited in terms of the provisions of Rule 32(11).’

 

[2]        The amended particulars of claim dated 12 June 2020 was set aside as irregular proceedings in terms of Rule 61 of the Rules.

 

[3]        The court order of 9 June 2020 was that the amended particulars of claim filed on
20 June 2019 together with annexure MCW5 attached to the irregularly filed amended particulars of claim filed on 12 June 2020 should be filed on or before 30 October 2020 despite the strong case which defendants made in their security of costs application against plaintiff for the hearing of their intended exceptions against the amended particulars of claim filed on 20 June 2019.

 

[4]        Justice Tomassi dismissed on 31 October 2019 the first defendant's application for security of costs in terms of Rule 59.

 

[5]        On 24 January 2020 Justice Tomassi delivered her reasons for the dismissal of the security of costs application.[1]  I agree with paragraphs [4], [7], [8], [9], [10] and [11] of the reasoning.[2]

 

[6]        In paragraph [11] of her reasons on 24 January 2020 Justice Tomassi recorded as follows:

 

‛I dismissed the application of the defendants and the rationale for doing so was to afford the plaintiff the opportunity to oppose the exception and to fast track the matter without causing further delays in hearing the exception.  However, having considered the matter carefully, it became apparent that I ought to have ordered the plaintiff to pay security for costs in order to limit the abuse of the court process and to avoid the defendants being dragged down a cul-de-sac.’

 

[7]        I revert to the court order of 19 October 2020 as in paragraph [1] above.

 

[8]        Plaintiff, instead of filing the amended particulars of claim first filed on 20 June 2019, filed different amended particulars of claim on 22 October 2020 and did so cognitively aware of the fact that he brought about further changes and amendments to the amended particulars of claim dated 19 June 2019 and filed on 20 June 2019.  What is more serious is that he must have realised that he acted in flagrant disregard of the court order of 19 October 2020.

 

[9]        Protestations by the defendants followed and plaintiff then filed another set of amended particulars of claim dated 19 June 2019 on 2 November 2020.

 

[10]      Subsequently Mr Kamwi requested the court and the defendants to disregard the amended particulars of claim and application in terms of Rule 18(4) filed on 22 October 2020 and to consider only the amended particulars of claim filed on 2 November 2020, as well as his new application in terms of Rule 18(4) and his Notice of Motion to grant relief consequent thereto that the defendants did not deny allegations in terms of Rule 46(3) of the Rules.

 

[11]      The amended particulars of claim filed on 2 November 2020 also contained changes, deletions and insertions without following mandatory proceedings prescribed in Rule 52 of the Rules of Court.  Only one person could brought about these changes and did so cognitively:  Mr Kamwi.  Every time he purportedly filed the amended particulars of claim dated 19 June 2019, he did so knowingly that it may prejudice the defendants and cause them harm later in the case if he does not apprise them of the changes and defendants do not realise that he brought about changes, deletions and insertions.

 

[12]      The application in terms of Rule 18(4) for revoking and varying the costs order, has to be read with the other orders, orders 1 and 2 on 19 October 2020 and has to be considered within the context of the issues which Justice Tomassi had to decide.  An application for leave to appeal, in the circumstances, would have been appropriate in view of the grounds set out in the plaintiff's accompanying affidavit.

 

[13]      Plaintiff's reliance on Rule 46(3) in applying to court to decide and dispose summarily the allegations of fact in the amended particulars of claim dated 19 June 2019 filed on
2 November 2020 and not objected to by the defendants on 27 June 2019, is erroneous.  Rule 46(3) clearly applies to pleadings.  Rule 46(3) provides:

 

‛Every allegation of fact in the particulars of claim which is not stated in the plea as denied or admitted is regarded as having been admitted and, if an explanation or qualification of an admission or denial is necessary, it must be stated in the plea.’

 

[14]      It is common cause and common sense that Rule 46 deals with pleadings and not with objections and notices.

 

[15]      In any event, the court has no particulars of claim or amended particulars of claim in front of it to take judicial notice of.  Plaintiff, in terms of Rule 54(3), was automatically barred by his default to file on or before 30 October 2020.  Plaintiff's explanation that he resides at Mafuta Compound, Zambezi and only arrived in Windhoek on Friday 30 November 2020 at 19h00 and was thus not able to file the amended particulars of claim as ordered in time, is devoid of logical substance (and in any event is not contained in an affidavit supporting a condonation application) against the background that he filed an irregular amended particulars of claim already on 22 October 2020, which he abandoned after protestations by defendants.  Plaintiff had ample time to comply with the court order of 19 October 2020.  Condonation for the late filing is therefore refused.

 

[16]      None of the parties before me applied for a rescission or variations of order 1 of the Court order of 9 December 2020 in terms of Rule 103.

 

[17]      In view of paragraph [5], [6] and [11] to [16] of this Reasons and applying Rule 53 of the Rules of Court on a purported action which is a brutum fulmen, the orders on the first and second pages hereof are made.

Judge’s signature:

Note to the parties:

 

 

Counsel:

Plaintiff(s)

Defendant (s)

Mr Alex Mabuku Kamwi Kamwi

(in person)

Mr Willem van Greunen

Köpplinger Boltman Legal Practitioner

     

 

 

[1]   See:  Kamwi v Law Society of Namibia (HC-MD-CIV-ACT-DEL-2019/01337) [2020] NAHCMD 23
(24 January 2020).

[2]   See also:  Alex Kamwi Kamwi v S (HC-MD-CIV-ACT-OTH-2017/01050) [2017] NAHCMD 339
(28 November 2017).  I concur with paragraphs [43], [44] to [52].