REPORTABLE

CASE NO SA 32/2007

IN THE SUPREME COURT OF NAMIBIA

In the matter between

And

Coram:
Shivute,
CJ, Strydom, AJA et
Chomba, AJA

Heard
on: 02/04/2008

Delivered on:
24/10/2008

APPEAL JUDGMENT

SHIVUTE,
CJ:
[1] This appeal raises an important question in our law of whether
a member of a close corporation who is not a legal practitioner is in
law precluded from representing the corporation in legal proceedings
in our superior courts.

2. 
   The appellant,
   a close corporation, was a party to an action instituted against it
   in the High Court (Heathcote, AJ) by the respondent in which the
   respondent claimed inter
   alia
   repayment of a sum of money allegedly mistakenly deposited in the
   bank account of the appellant by employees of the respondent and
   which amount the appellant allegedly appropriated. For some reason
   the respondent withdrew the action against the appellant but the
   notice of withdrawal did not embody consent to pay appellant’s
   costs in the action as envisaged in Rule 42(1)(a) of the Rules of
   the High Court.¹
   Consequently, the appellant applied to the Court a
   quo, as
   it was entitled to do,
   for
   an order for costs in terms of Rule 42(1)(c) of the Rules of the
   High Court. The appellant furthermore sought an order that
   prohibited the respondent from instituting any action against the
   appellant until such time that it had paid the appellant’s
   costs in the action that it had withdrawn.

   
   

2. 
   The appellant was
   represented in its application by Mr AM Kamwi, the sole member of
   the applicant, who is not a legal practitioner. Mr Kamwi had also
   represented the appellant in the action that was subsequently
   withdrawn.
   

   
   

2. 
   The respondent
   opposed the application and took the point that since Mr Kamwi was
   not a legal practitioner, the appellant was not entitled to any
   costs, save its actual disbursements taxed by the Registrar. With
   regard to the prayer to bar the respondent from instituting any
   action against the appellant prior to paying the costs, the
   respondent argued that a Court normally exercises a discretion
   whether or not to impose a stay on a litigant to proceed with an
   action against another party and that for the Court to be in a
   position to exercise such a discretion, it must be in possession of
   facts, which facts the appellant allegedly neglected to place before
   the court.

   
   

2. 
   The Court a
   quo
   agreed with counsel for the respondent’s submission and held
   that a lay litigant acting in person was not entitled to costs other
   than actual disbursements reasonably incurred. With regard to the
   prayer for the prohibition to institute proceedings until costs had
   been paid, the learned Judge found that no case had been made out
   for the prayer and declined to grant it.

   
   

2. 
   Aggrieved by the
   decision of the Court a
   quo,
   Mr Kamwi lodged the present appeal purporting to act for and on
   behalf of the appellant. He did so on the following grounds:

   
   

“1. The
Honourable Acting Judge erred in law and in effect when he found that
a lay litigant is not entitled to his costs including expenses for
his/her labour whereas decided cases by the above Honourable Court
found that the issue of disbursement only applies where there is no
order of Court for costs.

2. The
Honourable Acting Judge misdirected himself by basing his finding on
the tariffs for legal practitioners prescribed by the Rules of the
High Court of Namibia whereas decided cases show that the tariffs
prescribed in the rules of the High Court cannot deny a lay litigant
from claiming his costs.

3. He
misdirected himself when he found in his judgment that appellant
relied on the authority of Webb
v Union Government
whereas appellant relied on the authority of the above Honourable
Court delivered on 29 March 2007 as well as secondary legal materials
followed by the courts which the acting judge avoided in his
judgment.

4. The
Honourable Acting Judge erred in law and in effect when he found that
Appellant was not substantially successful whereas in fact and in law
she (sic)
was substantially successful.”

2. 
   Mr Kamwi
   accordingly
   argued the appeal on behalf of the appellant while Mr Mokhatu
   appeared for the respondent.

   
   

2. 
   The respondent
   filed application for condonation for the late filing of its heads
   of argument, which was
   initially opposed, but the opposition having been abandoned, the
   Court found that a case had been made out and it accordingly granted
   the application.

   
   

Points
in limine

2. 
   Mr Mokhatu takes
   several points in
   limine,
   two of which if found to be sound in law, would have the
   consequences that the appeal is not properly before us and stands to
   be struck from the roll. We nevertheless allowed the parties to
   argue the appeal including the merits and reserved judgment in
   respect of both the points in
   limine
   and the merits. It therefore becomes necessary to first consider
   the points in
   limine,
   starting with the two points in
   limine
   that call for consideration in greater detail in view of their
   potential to curtail the proceedings in the appeal.
   

   
   

2. 
   The first
   point concerns the alleged existence of a legal impediment to Mr
   Kamwi noting and arguing the appeal on behalf of the appellant. It
   is argued that by virtue of Rule 16(2)(a) of the Rules of the High
   Court²,
   a party to court proceedings in the High Court or Supreme Court has
   to act in person or alternatively through a legal practitioner. Mr
   Mokhatu also referred the Court to section 35(1) of the Supreme
   Court Act, 1990.³
   Furthermore, Mr Mokhatu contends that as a juristic person, the
   appellant can only be represented in Court by a legal practitioner
   as it is incapable of acting “in person”. Mr Mokhatu
   relies on South African cases of Volkskas
   Motor Bank Ltd v Leo Mining Raise Bone CC and Others;⁴
   Yates Investments v Commissioner for Inland Revenue;⁵
   Dormehl’s Garage (Pty) Ltd v Magagula⁶
   and
   Arma
   Carpet House (Johannesburg) (Pty) Ltd v Domestic and Commercial
   Carpet Fittings (Pty) Ltd and Another,⁷
   as
   alleged
   authority
   for
   the proposition that a corporation cannot be represented in court
   proceedings by persons other than legal practitioners.
   

   
   

2. 
   A reading of the
   cases cited
   by Mr Mokhatu shows, however, that only Yates
   Investments v Commisioner for Inland Revenue (supra);
   Dormehl’s
   Garage (Pty) Ltd v Magagula (supra)
   and Arma
   Carpet House case
   (supra)
   support the contention advanced by Mr Mokhatu in this regard. The
   Volkskas
   Motor Bank case
   (supra)
   concerned an attempt by a natural person who was not a legal
   practitioner to represent two other natural persons and not a
   corporate entity as is the case in
   casu.
   Mahomed, J (as he then was) found that since the applicable South
   African Rule 19(1) of the Uniform Rules of Court required a
   defendant, within a specified time, to deliver a notice of intention
   to defend ‘either personally or through his attorney’,
   the notice of intention to defend filed by a defendant in respect of
   defendants other than the defendant who had given the notice was
   irregular and invalid.⁸
   
   

   
   

2. 
   The principle
   established in the Yates
   Investments v Commissioner of Inland Revenue
   case (supra)
   and many other cases regarding the requirement that a corporation
   must be represented by a legal practitioner in court proceedings was
   stated by Margo, J in the Arma
   Carpet House case
   (supra)
   as follows in relation to the application of the rule in South
   Africa at the time of the judgment:⁹

   
   

“In
appearances
before the Court the position, on the authorities, is that a litigant
who does not appear in person must be represented by an advocate, and
in certain very exceptional circumstances may be represented by an
attorney, but that a company, being an artificial person, may not
appear in person. In pleadings the Rule is that such must be signed
by an advocate and attorney, or by the litigant in person; but, on
the decided cases, a corporation, being an artificial person, cannot
sign ‘in person’.”

2. 
   The
   above rule of practice is to be found not only in South African
   common law, but also in that of Zimbabwe, Republic of Ireland and
   Commonwealth jurisdictions such as England, Australia, New Zealand
   as well as Canada¹⁰.
   That this is also a rule of practice in our jurisdiction is plain
   seeing that our common law and that of South Africa and Zimbabwe are
   in substance the same. The real question is whether the rule can be
   sustained in all circumstances in the light of constitutional
   developments.

   
   

2. 
   It is common cause
   that the appeal in
   this matter was drafted, signed and lodged by Mr Kamwi who, as
   previously stated, purported to act for and on behalf of the
   appellant. Mr Mokhatu contends that by drafting, signing and/or
   lodging the notice of appeal on behalf of the appellant, Mr Kamwi
   has not only acted contrary to a rule of practice of this Court, but
   that his purported representation of the appellant amounted to a
   contravention of section 21(1)(c) of the Legal Practitioners Act
   (Act 15 of 1995) as amended by Act 4 of 1997.¹¹
   Accordingly, so Mr Mokhatu submits, the notice of appeal drafted,
   signed and lodged by Mr Kamwi is a nullity in law.

   
   

2. 
   Mr Kamwi resists
   this submission and contends that as the sole member of the
   appellant, he was entitled to represent the appellant in his
   capacity as a duly authorised organ or alter
   ego of
   the appellant. He expressly disavowed any suggestion that he lodged
   the appeal by virtue of the appellant being a paralegal acting in
   person as he seemingly contended in paragraphs 5.5 and 5.7 of his
   written heads of argument. Mr Kamwi relies for the proposition that
   as a duly authorised organ of the appellant, he was entitled to
   represent the appellant on the Zimbabwean case of Lees
   Import and Export (Pty) Ltd v Zimbabwe Banking Corporation Ltd
   (supra).

   
   

2. 
   In
   the Lees
   Import and Export case
   (supra)
   the Supreme Court of Zimbabwe had occasion to consider whether a
   rule of practice that a corporation had no right to be represented
   in the conduct of proceedings in Court except by an admitted legal
   practitioner breached the constitutionally guaranteed rights to the
   protection of the law and to a fair hearing. Gubbay, CJ who wrote
   the unanimous judgment of the Court traced the origin of the rule
   and found that the continued existence of the rule in modern times
   was justified on grounds including the concern that should lay
   persons be allowed to represent corporations in court proceedings,
   superior courts would be denied an opportunity to be served by legal
   practitioners who are subject to the rules of their profession; who
   are subject to a disciplinary code and who are familiar with the
   methods and scope of advocacy which are followed in the presentation
   of a court case. Gubbay, CJ described the other policy
   considerations justifying the adherence to the rule as follows:

   
   

“Moreover,
such a prohibition gives effect to the fact that an unqualified and
inexperienced person may do more harm than good to the person he
assists; if only because his ignorance
of the law may support his opponent’s cause.

Yet
another observation is that, save for the rule,
corporate officers could cause impecunious companies to litigate
hopeless causes without fear of personal liability. Litigants in
person, through lack of experience, often pursue irrelevant matters
ad
nauseum,
unduly prolong proceedings and require indulgences from the court and
from their opponents to meet their non-professional approach.

Further,
it is pointed out that, whereas a litigant in person can make
decisions as to whether factual admissions and denials are to be
made, a company’s agent, even if validly appointed to act on
its behalf, from time to time would require to obtain authority to
make decisions in the course of the proceedings. Litigation would be
rendered very difficult if courts were concerned at every step as to
the authority of the person conducting the case to make the relevant
decision.”¹²
(Reference to authorities omitted).

2. 
   Gubbay,
   CJ observed that some of these policy considerations may not be
   sufficiently persuasive as to warrant adherence to the rule. This
   is particularly the case when the policy considerations tend to deny
   audience to persons that are organs of the corporate entity. He
   pertinently remarked:

   
   

“Certainly
the denial of the right of audience to persons who are organs of the
company, as distinct from merely agents, is criticised somewhat
cynically in Gower’s Modern
Company Law
4^th
ed at 212 as appearing to ‘achieve no useful purpose other than
to protect the monopoly of barristers and solicitors.’”¹³

2. 
   After a careful
   review of authorities, Gubbay,
   CJ concluded that the rule was too entrenched in many jurisdictions,
   for it to be impugned on the basis other than that its enforcement
   may infringe a constitutional right of access to the courts.¹⁴
   Yet what the decisions wherein the rule was consistently stated
   overlooked was the caveat placed on the rule, namely that the rule
   was subject to the discretionary powers of superior courts to
   regulate their proceedings subject to the legislative imperatives
   and in the interest of justice to allow a person who is not a legal
   practitioner to appear before court on behalf of a corporation.¹⁵
   
   

   
   

2. 
   Article 78(4) of
   the Namibian Constitution provides that "the Supreme Court and
   the High Court shall have the inherent jurisdiction …,
   including the
   power to regulate their own procedures…".

   
   

2. 
   Furthermore,
   section 37(2) of the Supreme Court Act, 1990 states:

   
   

"Nothing
in this section contained shall preclude the Supreme Court from
dealing with any matter before it, in such manner and on such
principles so as to do substantial justice and to perform its
functions and duties most effecially (sic)."

The word "efficially" is
clearly a slip of the drafter's or legislator's pen.

2. 
   Counsel for the
   respondent in
   Lees
   Import and Export v Zimbabwe Banking Corporation (supra),
   argued that the right of audience was incapable of being vested in a
   juristic person insofar as the right to a fair hearing under
   subsection (9) of section 18 of the Constitution of Zimbabwe
   included of necessity the right to stand up and speak before
   superior courts, something that a natural person evidently is
   incapable of doing. To that end therefore, so it was submitted, the
   term “person” must be confined to natural persons.
   Counsel for the respondent in that case relied on the South African
   case of Hallowes
   v The Yacht
   Sweet Waters¹⁶
   where Hurt, J dealt with the contention by one Mr Labuschagne, an
   employee of the close corporation Hallowes, to the effect that as
   the corporation was indigent and therefore unable to procure the
   services of an advocate to represent it, a refusal by the court to
   hear him on behalf of the close corporation amounted to a denial of
   the corporation’s right to be heard as enshrined in section 22
   of the then South African interim Constitution Act, 1993.

   
   

2. 
   Disagreeing with
   the submission, Hurt,
   J stated the following in the passage that counsel for the
   respondent in the Lees
   Import case
   (supra)
   relied on for the proposition he advanced above:

   
   

“Although
s 22 of the Constitution Act plainly includes, within its ambit, the
right of the ‘person’ to stand up in Court and argue his
(or her) own case, this (as has been said in numerous judgments on
the subject) is something which a juristic person is incapable of
doing.
It follows, in my view, that the right to present one’s own
case is a right which cannot vest in a juristic person, since it is,
by nature, not a right which the juristic person can exercise. The
consequence is that, in terms of s 7(3) of the Constitution Act, this
is not one of the rights enshrined for juristic persons.”¹⁷

2. 
   Gubbay,
   CJ found himself unable to agree with Hurt, J’s reasoning on
   this score and pertinently and aptly stated the following in
   levelling criticism at the rationale:

   
   

“True,
a juristic person, being a purely legal concept, is incapable of
being physically present at any place and must always act through an
agent. This is what the corporation Hallowes sought to do through Mr
Labuschagne. It would seem, however, that Hurt J regarded a juristic
person as lacking the capacity to exercise the right to present its
own case before him, even if it were to do so through an organ or
alter
ego.
This, I think, was to confuse the content of the right with the
manner of its exercise.”¹⁸

2. 
   He made
   the following further observations:

   
   

“If
the premise is correct that where the alter
ego
of a company acts it is effectively the company itself which does so,
the substantive point at issue is whether it may elect to exercise
its right to a fair hearing under s 18(9) of the Constitution
(including its rights of audience) either through the agency of a
practising legal practitioner or by means of its alter
ego.

The
organic or alter
ego
doctrine recognises that in some situations the acts, intentions and
knowledge of certain persons are the acts, intentions and knowledge
of the company. This is because the company is not a visible person.
It has no physical existence, no body parts or passion, no mind or
will of its own. It has ‘no body to kick and no soul to damn
and the only way of ascertaining its intentions is to find out what
its directors acting as such intended’ (per
Centlivres CJ in Commissioner
for Inland Revenue v Richmond Estates (Pty) Ltd 1956(1)
SA 602 (A) at 606 G). Such persons therefore are the directing mind
and will of the company and control what it does; the very ego
and centre of its personality; its embodiment. They do not act or
think on behalf of or for the company as its agents. Rather they act
and know and form intentions through the persona
of the company. See H
L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1956]
3 All ER 624 (CA) at 630 D - F; Tesco
Supermarkets Ltd v Nattrass
[1971] 2 All ER 127 (HL) at 131h - j; El
Ajou v Dollar Land Holdings plc and Another
[1994] 2 All ER 685 (CA) at 695g - 696a; and, to the same effect,
such South African authorities as Levy
v Central Mining & Investment Corporation Ltd
1955(1) SA 141 (A) at 149 H -150 A; Ensor
NO v Syfret’s Trust and Executor Company (Natal) Ltd
1976(3) SA 762 (N) at 763 E - H; Harris
v Unihold (Pty) Ltd and Others 1981(3)
SA 144 (W) at 147 D.” ¹⁹

2. 
   In
   the consideration of the application by natural persons seeking to
   represent the corporation it is therefore of crucial importance to
   establish the status of such persons in order to determine whether
   they have the status and authority which in law makes their acts,
   intentions and knowledge those of the company so as to treat them as
   the company itself.
   

   
   

2. 
   In Lees
   Import and Export
   case (supra),
   Gubbay, CJ concluded that the common law rule offended against
   section 18(9) of the Constitution of Zimbabwe to the extent that it
   prohibited the duly authorised organ or alter
   ego of
   a company the right to appear in the person of the company before
   the superior courts of Zimbabwe. The right given to “every
   person” under subsection (1) and (9) of section 18 of the
   constitution of Zimbabwe includes within its reach a corporate body
   appearing through its alter
   ego.²⁰
   
   

   
   

2. 
   The provisions
   in the Namibian Constitution equivalent to those contained in
   subsections (1) and (9) of section 18 of the Constitution of
   Zimbabwe are reflected in Articles 10 and 12(1)(a) of the Namibian
   Constitution.²¹
   Mr Kamwi submits, in effect, that if he is not granted permission to
   represent the appellant, the appellant would effectively be denied
   access to the Courts seeing that the appellant is allegedly
   impecunious and cannot afford the services of a legal practitioner.

   
   

2. 
   Counsel for the
   respondent in this appeal contends
   that the case of Lees
   Import and Export (supra)
   is of no assistance to the appellant as counsel doubts if the word
   “persons” in the relevant provisions in the Namibian
   Constitution would include artificial persons. Counsel argued, in
   any event, that persons that are not legal practitioners should not
   be permitted to represent corporations in legal proceedings in the
   superior courts for the consideration that juristic persons who may
   find themselves in a state of impecuniousness may apply for legal
   aid, since so counsel contends, the Legal Aid Act, 1990 makes
   provision for application by corporate entities.

   
   

2. 
   These submissions
   are clearly untenable. In the first place it is difficult to
   comprehend the basis upon which counsel expressed doubt whether word
   “persons” in the Namibian Constitution would include
   artificial persons given the nature of the right accorded to
   “persons” in the two Articles. Evidently the right to
   equality before the law and to a fair trial are applicable to and
   can be enjoyed by natural persons. The Namibian Constitution
   employs the word “persons” which is wide enough to
   encompass artificial persons. Where a right in the Constitution is
   not accorded to “persons” the class of individuals to
   whom the right accrues is specified. One finds, for example, that
   “men and women” have the right to marry (Art 14);
   “children” have the right to a name, nationality etc.
   (Art 15); “citizens” have the right to participate in
   peaceful political activity (Art 17(1)). One searches in vain for a
   provision in the Legal Aid Act that explicitly states that natural
   persons may apply for legal aid as contended for by Mr Mokhatu. The
   right to so apply is accorded to “any person”, which
   expression I assume, without deciding, includes natural persons.
   

   
   

2. 
   In my respectful
   view, Gubbay, CJ’s analysis of the law and the conclusion he
   had arrived at in the Lees
   Import
   case (supra)
   as regards the denial of the right of a corporation to be
   represented by its alter
   ergo
   has application to the Namibian situation since the constitutional
   provisions that stood to be considered in that case are similar to
   those in
   casu
   and the value judgment that has to be made in both situations is
   essentially the same. I find his reasoning to be persuasive and in
   my respectful view should be followed by this Court.
   

   
   

2. 
   As
   previously alluded to, it is common cause that Mr Kamwi is the sole
   member of the appellant. To deny him audience in the circumstances
   where it is apparent that he is the alter
   ego
   of a small, one-person corporation that either prefers to litigate
   without legal representation or is unable to do so due to cost
   thereof would result in the appellant essentially being denied its
   constitutionally guaranteed right of access to the Court.²²
   
   

   
   

2. 
   The interpretation
   giving access to the courts to small, one-person corporations is
   consistent
   with the constitutional jurisprudence of our Courts that entails a
   broad, liberal and purposive interpretation of the constitution so
   as to ensure that the spirit and tenor of the constitution “presides
   over and permeates the process of judicial interpretation and
   judicial discretion”.²³
   
   

   
   

2. 
   I am of the
   opinion that Mr Kamwi was entitled to lodge the appeal on behalf of
   the appellant and that he should be allowed to represent the
   appellant in this appeal.
   
   

   
   

2. 
   I am fortified in
   this view by the
   approach of South African Courts in cases such as Navy
   Two CC v Industrial Zone Ltd²⁴
   (reaffirming Wunsch, J’s reasoning in California
   Spice and Marinade (Pty) Ltd and Others (supra);
   Mittal
   Steel SA Ltd t/a Vereenging Steel v Pipechem CC (supra)
   as regards the application of the rule in that jurisdiction, viz.
   that in South Africa the rule is not inflexible and a court should
   be entitled, in an appropriate case and to avoid injustice, to allow
   at least a one-person company to be represented at court hearing by
   its alter
   ego.
   The court should weigh up the inconvenience caused to the court as
   a result of an unqualified person appearing before it against the
   injustice of a juristic person being denied access to the Courts and
   if a choice were to be made between a court enduring the
   inconvenience of having a corporation represented by its member or
   shareholder-director instead of a qualified practitioner and the
   injustice that could follow if the litigant is unable to appear or
   present its case at all, in an appropriate case, the court should
   choose to suffer the disadvantage.²⁵
   
   

   
   

2. 
   In any event,
   as Gubbay, CJ observed in the Lees
   Import and Export
   case (supra)
   and which view I share, allowing an alter
   ego
   of a corporation to represent the entity does not at all undermine
   the rule of practice:
   

   
   

“It
merely provides an exception to it.
For it does not permit a company to appear before the superior
Courts through someone who is a mere director, officer, servant or
agent. … Companies, which cannot be said to be the
embodiment of any human body, will not qualify under s 18(9) because
no human being personifies the company ‘in person’. In
general, small companies should be able to avail themselves of the
exception.”²⁶

2. 
   Nor does the
   exception in my view offend against the provisions of section
   21(1)(c) of the Legal Practitioners Act, 1995 which as previously
   noted, criminalises specified activities if performed by persons who
   are not enrolled as legal practitioners. The section in no way
   implies that any person who does any of the prohibited acts with
   leave of Court in the exercise of its discretion to regulate its
   procedure “so as to do substantial justice” commits a
   crime. On the contrary, the section embodies an exception, viz.
   “in so far as it is authorised by any other law”, which
   includes both statute and common law. As Gubbay aptly stated in
   Lees
   Import and Export
   case (supra):

   
   

“Under
the latter regime
[meaning common law], as already mentioned, the disability of a
company to appear in proceedings by its officer may be lifted under
the inherent power in Superior Courts to control their proceedings”.

2. 
   I conclude then
   that as the alter
   ego
   of a one-person close corporation and as previously mentioned, Mr
   Kamwi was entitled to lodge the appeal on behalf of the appellant
   and that he was properly allowed to argue the appeal for and on
   behalf of the appellant. It follows that the first preliminary
   point raised on behalf of the respondent must fail.
   

   
   

2. 
   Having found that
   the appellant is properly represented, I
   pass to consider the next point in
   limine,
   namely that the appellant should have obtained leave of the Court
   a quo
   or in the event of leave being refused by that Court, leave of this
   Court, to appeal. It is contended that the judgment or order
   appealed against squarely falls within the ambit of section 18(3) of
   the High Court Act, 1990 which reads as follows:
   

   
   

“(3)
No judgment or order where the judgment or order sought to be
appealed from is an interlocutory order or an
order as to costs only left by law to the discretion of the court
shall
be subject to appeal save with leave of the court which has given the
judgment or has made the order, or in the event of such leave to
appeal being refused, leave to appeal being granted by the Supreme
Court.” (Underlining supplied)

2. 
   It is common cause
   between the parties that no such leave had been sought.
   
   

   
   

2. 
   The basic rule is
   that an award of costs is in the discretion of the court.
   In Kruger
   Bros & Wasserman v Ruskin,²⁷
   a
   decision that has been consistently followed by South African
   Courts,
   Innes,
   CJ said the following in respect of this basic rule:

   
   

“… the
rule of our law is that all costs - unless expressly otherwise
enacted - are in the discretion of the Judge. His discretion must be
judicially exercised; but it cannot be challenged, taken alone and
apart from the main order, without his permission.”²⁸

2. 
   The learned author
   Cilliers also points out that even the general rule, namely that
   costs follow the event, is subject to the above overriding
   principle.²⁹
   It seems to me that when a Court considers issues relating to
   whether or not to grant an order as to costs and the extent to which
   such costs are awarded, it exercises discretion. It appears also
   implicit in the appellant’s application in the court below for
   an order of costs in the wide sense that it essentially prayed for
   the court to exercise its discretion. 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.”
   

   
   

2. 
   Furthermore,
   as far as the order to stay the proceedings where previous costs
   remain unpaid is concerned, the making of or refusal to make such an
   order is undoubtedly discretionary. Cilliers, for example, makes
   the following statement in this regard:

   
   

In
Strydom
v Griffin Engineering Co
[1927 AD 552 at 553] the Appellate Division held that there is no
hard and fast rule as to when costs incurred in earlier proceedings
in a case must be paid before a litigant will be allowed to proceed
further. If the non-payment of the costs is vexatious, oppressive or
mala
fide,
the court will not allow the litigant to proceed before paying the
earlier costs. If there is a mere inability to pay, the court may
grant its indulgence to the applicant; but even where an inability to
pay exists and where there is no bad faith or intention to act
vexatiously, the court is still entitled to look to all the
surrounding circumstances and then
in its discretion
determine whether or not the earlier costs should be paid. This
statement, it was later held, seems to widen the principles upon
which the court will act so much that it can be said that the matter
is entirely in the discretion of the court.³⁰
(Emphasis added)

2. 
   It follows
   then that leave of the Court a
   quo,
   to appeal against the order of costs in this case should have been
   sought and obtained and that in the event that leave was refused,
   leave of this court should have been obtained before the appellant
   could lodge the present appeal. I am unable to see that there is a
   real answer to the point in
   limine.
   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. It appears that
   the second point in
   limine
   is well-taken and must be upheld. The appeal stands to be struck
   from the roll.
   

   
   

2. 
   Mr Mokhatu also
   raised other
   points in
   limine
   relating to the record of appeal. The points, perhaps technical in
   nature, do not dispose of any issue or portion of issue in the
   appeal. As such I do not find it necessary to consider those points
   in
   limine for
   the purposes of this appeal.
   

   
   

2. 
   The finding that
   leave to appeal should have first been obtained effectively disposes
   of the appeal and in view of the fact that the appeal stands to be
   struck from the roll, it is not necessary to express any opinion on
   the merits of the case although we have heard full argument thereon.

   
   

2. 
   Accordingly the following order is
   made:

   
   

The appeal is struck from the roll
with costs.

________________________

SHIVUTE
CJ

I
concur.

________________________

STRYDOM
AJA

I
also concur.

________________________

CHOMBA AJA