Court name
Supreme Court
Case number
SA 22 of 2008
Case name
Kamwi v Duvenhage and Another
Media neutral citation
[2009] NASC 16





CASE NO











REPORTABLE


CASE
NO. SA

22/2008


IN
THE SUPREME COURT OF NAMIBIA






In
the matter between:






















ALEX
MABUKU KAMWI




APPLICANT






And










HANNELIE
DUV
ENHAGE


ETZOLD–DUVENHAGE
LEGAL
PRACTITIONERS





FIRST
RESPONDENT



SECOND
RESPONDENT










Coram: MARITZ,
J.A., CHOMBA A.J.A. et DAMASEB A.J.A.





Heard
on: 2009-10-14


Delivered
on: 2009-11-13







JUDGMENT








MARITZ,
J.
A.:


[1]
This
application, ultimately intended to obtain reinstatement of the
applicant’s appeal, is a sequel to an earlier order of this
Court striking the appeal off the roll with costs. As is evident from
the judgment (written by my Brother Chomba with whom my Brother
Damaseb and I concurred handed down on 24 November 2008), the Court
made the order for three reasons: (a) The appeal had lapsed by
operation of law
1
because the applicant had failed to enter into “good and
sufficient security” for the respondents' costs in the appeal
as required by Rule 8(2); (b) the appeal had lapsed
2
because the applicant had failed to file the record of appeal within
the time period prescribed by Rule 5(5) and (c) the applicant had
failed to file a correct and complete record of the proceedings in
the Court
a
quo

as contemplated by Rule 5(13) of the Rules of Court and did not apply
for condonation. The nature and history of the proceedings; the order
appealed against and a more extensive analysis of grounds and the
authorities underlying the Court’s conclusion appear from that
judgment
3
and it is therefore not necessary to repeat them for purposes of this
judgment.






  1. As
    part of
    its
    reasoning, the Court noted that the applicant would have to obtain
    condonation for his non-compliance with the Rules and reinstatement
    of the appeal should he wish to pursue it.
    4
    This, at least in part, is what the application is seeking - “in
    part” because in, what is titled as an “Application for
    Condonation”, the applicant only prays that the late filing of
    a fresh notice of appeal be condoned; that the late filing of the
    record of appeal be condoned and that the appeal be reinstated - no
    condonation is being sought for the applicant’s non-compliance
    with the requirements of Rule 8(2) regarding security for the
    respondents' costs of appeal.







  1. Rule
    8(2) reads:







(2) If
the execution of a judgment is suspended pending appeal, the
appellant shall, before lodging with the registrar copies of the
record enter into good and sufficient security for the respondent’s
costs of appeal, unless –







  1. the
    respondent waives the right to security within 15 days of receipt of
    the appellant’s notice of appeal; or








  1. the
    court appealed from, upon application of the appellant delivered
    within 15 days after delivery of the appellant’s notice of
    appeal, or such longer period as that court on good cause shown may
    allow, releases the appellant wholly or partially from that
    obligation.”






It
is common cause that execution of the judgment was suspended pending
the appeal. It has also not been suggested that the respondents
waived their right to security contemplated in paragraph (a), nor
that the applicant applied to the High Court to be released from the
obligation to enter into security under paragraph (b) of the sub-rule
or that security has been entered into – either before the
striking of the appeal or thereafter.






  1. The
    applicant claimed from the Bar at the hearing of the
    in
    limine
    objections
    to the appeal that he had not complied with the requirements of Rule
    8(2) because he had been ignorant of its provisions.
    5
    Having been informed of the Rule, his obligations thereunder and the
    consequences of his failure to comply with it in the Court's earlier
    judgement, he now seeks to avoid the obligation to enter into
    security by relying on Rule 4(8). The sub-rule reads:






Whenever
a person obtains leave to prosecute or defend an appeal
in
forma pauperis
,
he or she shall not be required to lodge security for the costs of
the opposite party or to pay any fees of court.”






To
that end, he gave notice in the Application for Condonation that

he intended to apply from the Bar on the date of the hearing “in
terms of the rules of the court for him to be granted leave to
prosecute the appeal
in
forma pauperis
”.
When the application for condonation was called, he immediately
sought to move the
in
forma pauperis-
application
from the Bar. The respondents, represented by Ms Van Der Westhuizen,
objected to this course of action. She contended with reference to
Rule 4(2) that an application of that nature could only be made from
the Bar if and when the respondents’ consent had been obtained
for the applicant to prosecute his appeal
in
forma pauperis
.
Such consent, she submitted, had nether been asked nor given. The
applicant, in turn, countered that the respondents’ inaction to
his notice implied tacit consent; that he was entitled to move the
application to prosecute his appeal as a pauper from the Bar and, in
any event, that the Court should entertain and allow the application.
This dispute may appear to be one of procedure but, in the absence of
an application to condone the applicant’s non-compliance with
the requirements of Rule 8(2), the outcome thereof will ultimately
bear on the substance of the applicant’s claim for
reinstatement in circumstances where he has failed to enter into
security for the respondents’ costs in the appeal.




  1. Rule
    4(2), on which the applicant relies, provides that an application
    for
    leave to prosecute or defend an appeal as a poor person –






may
be made orally from the Bar at the hearing of the appeal,
if
the opposite party consents to the applicant proceeding
in
forma pauperis
.”
(
emphasis
added
)






The
liberty of the applicant
under
the sub-rule to move a pauper-application orally from the Bar is
qualified. The applicant may only proceed with the application in an
informal manner “if” the opposite party’s consent
has been obtained for him or her to prosecute or defend the appeal as
a pauper. The conjunctive “if” normally introduces a
clause of condition or supposition and means "on condition that;
given or granted that; in (the) case that; supposing that; on the
supposition that".
6
Moreover, in the construction of the sub-rule as a whole, the
condition introduced by the word "if" is a condition
precedent: an oral application from the bar is only permissible if
the requisite consent has been obtained. Until then, the option of an
informal application under the sub-rule – as opposed to the
more formal petition procedure - is simply not available.
Notwithstanding the applicant’s contentions to the contrary,
this construction is so clear that the sub-rule only needs to be read
for it to be apparent.







  1. Moreover,
    t
    he
    context in which sub-rule (2) falls to be considered also reinforces
    this interpretation. Sub-rule (3) provides that, when the opposite
    party has not consented that the applicant may proceed
    in
    forma pauperis,

    the application must be made by means of a petition. Precisely what
    is expected of an applicant may be gathered from sub-rule (4): he or
    she may not lodge a petition with the registrar unless the opposite
    party "has been asked for, and has refused, his consent …”.
    The underlying
    ratio
    for
    this requirement is apparent: Proceeding by way of petition is quite
    laborious. It requires full disclosure of the petitioner’s
    financial position, a succinct and fair exposition of all
    information which would allow the Court to assess the prospects of
    success in the appeal, a verifying affidavit and, if for the
    prosecution of an appeal, certification by two counsel that the
    petitioner has reasonable prospects of success in the appeal and
    numerous other attendances on transcription, copying, service, and
    the like. It also requires of the Court to commit its limited
    resources to process and consider the petition. If the opposing
    party, who arguably stands to lose most if the applicant is
    permitted to prosecute or defend the appeal as a pauper without the
    obligation to provide security, consents that he or she may so
    proceed, the Court may
    prima
    facie
    construe
    it as a concession that the applicant is indeed a poor person as
    contemplated in Rule 4(5) and has reasonable prospects of success in
    the appeal (c.f. Rule 4(6)). Hence, the need for the applicant to
    formally establish those requirements on petition and for the Judges
    of the Court to assess them in the context of petition proceedings
    is dispensed with. The procedure referred to in Rule 4(2) may then
    be followed and, having given his or her consent, it will no longer
    be open to the opposing party to claim that he or she has been
    prejudiced by the informal nature of the application, or if leave to
    prosecute or defend the appeal as a pauper is granted.







  1. With
    this construction in mind, I now turn to the a
    pplicant's
    contention that the Court should infer respondents' consent from
    their inaction to the notice which he had given in the application
    for condonation. “Quiescence is not necessarily acquiescence”
    and for “conduct to constitute an acceptance (it) must be an
    unequivocal indication to the other party of such acceptance,”
    Watermeyer CJ remarked in
    Collen
    v Rietfontein Engineering Works
    .7
    Generally, acquiescence - “a form of tacit consent”
    8-
    in matters of importance is not lightly inferred from a person’s
    conduct.
    9
    Although silence may sometimes be regarded as consent “when it
    is one's duty to speak,”
    10
    such an inference is not justified on the facts of this application.







  1. Firstly,
    because t
    he
    applicant did not ask for the respondents’ consent as
    expressly contemplated by Rule 4(2): He simply gave notice of his
    intention to proceed with the pauper-application in an informal
    manner under Rule 4(2). In the absence of a request, the respondents
    did not have a duty to grant or withhold their consent. Secondly,
    because they did not fail to respond. Shortly after they had
    received the application for condonation - which included the notice
    - the respondents filed a Notice of Opposition and caused it to be
    served by the Deputy Sheriff on the applicant. The Notice to Oppose,
    reasonably construed, relates as much to the notification as it does
    to the other substantive relief mentioned in the application. For
    the applicant to infer the respondents’ tacit consent to his
    intended application from the Bar is therefore without factual or
    legal substance and somewhat opportunistic, to say the least.







  1. 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.”
    11
    For the reasons that follow, I do not consider it to be in the
    interests of justice to adopt such a course.







  1. 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
    12
    prescribed in Rule 4, he should apply for condonation. He did not.







  1. Most
    importantly though, he must have realised that
    ,
    even if the Court would condone his non-compliance with the
    prescribed procedures and time limits, it had to be satisfied that
    he meets the qualifying criteria for pauper assistance prescribed by
    Rule 4(5). Not any person may apply for leave to prosecute or
    defend an appeal
    in
    forma pauperis
    ,
    only poor persons
    13
    may do so. Poverty should not be a bar to justice. It should not be
    allowed to deprive indigent persons with just causes or defences the
    opportunity to have them adjudicated. But, given the constitutional
    demand for equality
    14
    and the right all persons have to a fair trial
    15,
    the Courts must seek to strike a fair balance between the measures
    set to accommodate poor litigants and the equally important rights
    of opposing parties to a just and fair adjudication of their cases.
    In an attempt to do so, the Rules of Court have been designed to
    allow for pauper proceedings; the Courts, drawing on an age-old
    tradition, impose on the goodwill and sense of social responsibility
    of their officers to accord legal representation without charge to
    those litigants who may wish to avail themselves thereof; opposing
    litigants are required to proceed with the litigation without the
    comfort of knowledge that, if successful, recovery of their costs
    has been secured and the Courts have dispensed with the payment of
    court fees. Given these measures and the imposing or potentially
    prejudicial impact they may have on the courts’ resources, on
    counsel and on other litigants, relief under pauper provisions is
    extended only within a narrow scope: to poor persons (as defined)
    whose causes or defences entertain reasonable prospects of success.







  1. The
    applicant made no effort to bring himself within the Rule’s
    definition of a poor person. In the absence of respondents’
    consent, the applicant’s failure to make a full and frank
    disclosure of his financial position as required by Rule 4(5), in
    effect deprives the Court of the opportunity to consider whether his
    is an appropriate case to allow pauper-proceedings. The applicant
    knew of these requirements and his failure to make full disclosure
    invites consideration of the possibility that he did not do so
    because he knew that he was possessed of property in excess of the
    values stipulated in the sub-rule.







  1. Nowhere
    in his otherwise lengthy affidavit does the applicant allege that he
    was (or is) unable to enter into security as required by Rule 8(2)
    or, if unable to do so, why he did not apply to be released wholly
    or partially from that obligation by the Court
    a
    quo
    .16
    Whilst admitting that he is seeking to use pauper-proceedings as a
    means to avoid his obligation to put up security, there is not a
    single factual averment in his affidavit to support his contention
    that he is entitled to orally apply from the Bar for leave to
    prosecute his appeal, if reinstated,
    in
    forma pauperis

    or, for that matter, that he is a poor person as contemplated in
    Rule 4 and, in the Court’s discretion, should be allowed to do
    so.







  1. In
    the result, the applicant’s informal pauper-application
    purportedly brought under Rule 4(2) cannot be entertained. Moreover,
    in the absence of a full disclosure of his financial position, he
    failed to establish any other basis upon which the Court, in the
    exercise of its discretion under Rule 18, may allow him to prosecute
    his appeal
    in
    forma pauperis
    .
    The applicant has also not shown any cause why he did not enter into
    security as required by rule 8(2) or why he should be released from
    that obligation. He did not even seek condonation of his failure. In
    short, he has not established any permissible legal basis upon which
    the effect of the Court’s earlier finding (i.e. that his
    appeal had lapsed because of his non-compliance with Rule 8(2)) may
    be disturbed. It follows that, for want of security, his application
    to have the appeal reinstated must fail.







  1. Condonation
    for the late filing of the notice of appeal and of
    the
    record of appeal is only sought as a means to an end: that being
    reinstatement of the appeal. The reinstatement sought cannot be
    granted for the reasons I have given. It will therefore serve no
    useful purpose to deal with the application to condone the
    applicant’s failure to comply with the time limits prescribed
    by the Rules for the filing of a notice of appeal and the record of
    appeal.







  1. In
    the result, the following order is made:







(a) The
application purportedly brought in terms of Rule 4(2) for leave to
prosecute the
applicant’s
appeal
in
forma pauperis

is struck off the roll.


(b) The
application to reinstate the applicant’s appeal is refused.



(c) The
applicant is ordered to pay the respondents’ costs in the
application.















MARITZ,
J.
A.








I
concur.











___________________


Chomba,
A.J.A.











I
concur.











___________________


Damaseb,
A.J.A.






























ON
BEHALF OF THE
APPLICANT:



In
person



ON
BEHALF OF
THE
RESPONDENT:


Instructed
by:



Ms.
C.E. van der Westhuizen


Kirsten
& Company








1
C.f. Rule 8(3) read with Rule 5(5) of the Rules
of Court.




2
See: Chairperson of the Immigration Selection Board v
Frank,
2001 NR 107 at 164D–E and Channel Life Namibia
(Pty) Ltd v Gudrun Otto
, Case No. SA 22/2007 (unreported)
delivered in the Supreme Court on 15 August 2008 at par [39].




3
Under the same case number.




4
See par [28] of the judgment.




5
See paragraph [25] of the earlier judgment in
this matter.




6
Compare: The Shorter Oxford English Dictionary on
Historical Principles, 3
rd
ed., vol.1, p. 1018. See also:
Walker v
Standard Bank of South Africa, Ltd
,
1923 AD 438 at 440 where Innes CJ equated the meaning of the word
“provided” in a contract to “if” or “on
condition that”.




7
1948
(1) SA 413 (A) at 422




8
Per McCall J in Safari Surf Shop CC v Heavywater and Others,
[1996] 4 All SA 316 (D) at 323i – j.




9
C.f. Central Authority v B, 2009 (1) SA 624 (W) at 629B-C.




10
Compare Commaille v Steyn,
1914 CPD 1100 at 1103




11
See: Xinwa v
Volkswagen of SA (Pty) Ltd
, 2003 (4)
SA 390 (CC) at 395C-E




12
The petition should have been filed within 21 days after noting of
the appeal. See: Rule 4(7)(b)




13
See: Rule 4(1) read with Rule 4(5).




14
See: Article 10 of the Constitution.




15
See: Article 12(1) of the Constitution.




16
See: Rule 8(2)(b).