Ex Parte; In Re: Kamwi v Law Society of Namibia (SA 21 of 2008) [2009] NASC 13 (20 October 2009);
REPORTABLE
CASE NO.: SA21/2008
IN THE SUPREME
COURT OF NAMIBIA
In the ex party
application of Alex Mabuku Kamwi
and
In the matter between
ALEX | APPELLANT |
and
THE | RESPONDENT |
CORAM:
Shivute, C.J., Strydom, A.J.A. et
Mtambanengwe, A.J.A.
HEARD ON: 10/06/2009
DELIVERED ON:
20/10/2009
APPEAL JUDGMENT
MTAMBANENGWE, AJA:
[1] In this matter Mr.
Kamwi appeals against two judgments of the High Court delivered on 24
May 2004, and on 9 March 2005. One of the judgments was delivered by
Van Niekerk J and the other by Gibson J on the respective dates.
[2] The two matters are
closely related, the first being an application brought ex
parte by
Mr. Kamwi and the second being an application brought by the Law
Society of Namibia against Mr. Kamwi as first respondent and two
entities called Nationwide Detectives CC and Central Investigation CC
respectively as second and third respondents.
[3] In the first matter
(the admission application) Mr. Kamwi sought what in essence are
three separate instances of relief, namely
“to be authorized to practice
(sic) as a Paralegal Professional;
for the High Court to order the
relevant Ministry to amend the acts and Rules of the Namibian Courts
to accommodate Paralegal Professionals;
for the said order to be gazetted and
to be published in the local media for the Public to know that
Paralegals are Legal Professionals and are authorised to practice
(sic) according to their specialties.”
[4] In the second matter
(the interdict application) the Law Society of Namibia sought and
obtained an interdict in the following terms:
“1. Interdicting
and restraining the respondents from practicing, or in any manner
holding themselves out as or pretending to be legal practitioners.
2. Interdicting and restraining the
respondents from making use of the title legal practitioner,
paralegal, paralegal practitioner, professional practitioner or any
word, name, title designation or description implying or tending to
induce the belief that they and more specifically the 1st
Respondent, is a legal practitioner or paralegal practitioner or is
recognized by law as such.
3. Interdicting and prohibiting the
Respondents from issuing out any summons or process to commence,
carry on or defend any action, suit or other proceeding in any court
of law in the name or on behalf of any other person.
4. Interdicting and prohibiting the
Respondents from performing any act, which in terms of the Legal
Practitioners Act (15 of 1995), or any regulation made under section
81(2) (d) of that Act, they are prohibited from performing.
5. Interdicting and prohibiting the
Respondents from drawing, preparing or causing to be prepared any
will or other testamentary instrument, any contract, deed or
instrument relating to the creation or dissolution of a partnership
or the variation of the terms thereof, any contract, deed or
instrument for the acquisition, disposal, exchange or lease of
immovable property for any other persons, other than a contract for
the lease of immovable property for a period less than five years, or
the preparation or drawing of the memorandum or articles of
association or prospectus of a company.
6. An order for immediate cessation of
all business activities of the 2nd
and 3rd
respondents, which are in contravention of the Legal Practitioners
Act of 1995.
7. That the First, Second and Third
Respondents be ordered to pay the costs of this application jointly
and severally the one paying the other to be absolved.”
[5] In the one matter
(the first) Mr. Kamwi bases his claim, to be entitled to be
authorised to practice as a paralegal with the right to do all those
things the Legal Practitioners Act 15 of 1995 (the Act) reserves to
be done by admitted legal practitioners, and to have the Act amended,
on Article 21(1) (j) of the Constitution. In the second matter his
whole opposition to the grant of the interdict sought by the Law
Society is similarly based on the premises that Article 21(1) (j)
entitles him to practice his calling as a paralegal professional and
to do all the things the Law Society sought to prevent him from doing
without let or hindrance.
[6] Mr. Kamwi’s ex
parte
application was dismissed, and the Law Society’s application
was granted with costs. Hence the appeal to this Court, seeking the
setting aside of the orders made in both cases. He sets the grounds
of appeal as follows:
“1. Honorable Ms. Justice Van
Niekerk J erred in law and in fact when she failed to note that the
constitution is the supreme law of the Republic of Namibia and in the
absence of any law regulating paralegals, appellant has the right by
virtue of the supreme law to practice his profession.
Both
Honorable Ms. Justice Van Niekerk J and Honorable Ms. Mavis Gibson
erred in law and in fact when they failed to note the amendments No.
4 of the legal practitioners’ Act of 1997.
The
interdiction order by Honorable Ms. Justice Gibson J is inconsistent
with the constitution of the Republic of Namibia.
The
Honorable Ms. Justice Gibson J erred in law and in fact when she
failed to take note of fraudulent documentations by law society
despite the admission on record made on the 4th
of February 2005 in court before her.
The
Honorable Ms. Justice Gibson J erred in law and in fact when she
failed to note that law society was not party to the proceedings and
that it did not comply with the rules of the High Court in opposing
appellant’s ex party notice of motion.
The
honorable Ms. Justice Gibson J erred in law and in fact when she
failed to note that the letter dated 2 February 2005 instructing the
registrar of the High Court to remove a document from the court file
was defeating or attempting to defeat the cause of justice or
alternatively corrupting the court.”
I
deal with grounds 4 and 5 first because these deal with certain
preliminary points which Mr. Kamwi raised in his submissions before
Gibson J, and these can be disposed of easily.
[7] Ms.
Margaretha Steinmann as director of the Law Society of Namibia
deposed to the founding affidavit in the
interdict application.
The affidavit was sworn to before the hearing of the ex
parte
application on 12 May 2004. One of the annexures to the affidavit is
annexure “MS2” intended to show that Mr. Kamwi had, in
the application for admission, applied to be “admitted
as a paralegal or legal practitioner.”
[8] Mr.
Kamwi vigorously denied authorship of the Notice of Motion “MS2”
containing in paragraph (c) thereof the sentence:
“To all these criteria’s
(sic) set by the above act I find myself to be fit to be authorised
to practice either as a full Legal Practitioner or as a Paralegal as
titled by the College I studied at.”
In
his vehement denial of the same, Mr. Kamwi went as far as accusing
the Law Society of fraudulently obtaining that document as, he says,
the admission application was never served on the Law Society.
[9] Though
Mr. Dicks who appeared for the Law Society before Gibson J admitted
that the document annexure “MS2” differed materially (and
it does in several respects) from Mr. Kamwi’s affidavit in the
admission application, it will be noted that both his purported
affidavit in notice of motion “MS2” and his affidavit in
the admission application conclude with the following identical
sentence:
“Lastly, I affirm here that I am
a qualified Legal Professional on the level of a Diploma and
therefore pray that I be granted that status of recognition and
authorization to practice (as is) as a Paralegal or full
Legal Practitioner.”
This
sentence could not have escaped the attention of Mr. Dicks, the Court
and, definitely, Mr. Kamwi himself. Therefore nothing really turns
on Mr. Kamwi’s challenge that annexure “MS2” was
forged, since in his affidavit in support of the Notice of Motion
which he filed in the admission application he states the same thing
as in that annexure. In these circumstances Mr. Kamwi suffered no
prejudice from the use of annexure “MS2” instead of the
correct affidavit. In any case the said annexure “MS2”
was not the only ground on which the interdict application was based
as Mr. Kamwi appeared to say in argument before Gibson J and continue
to submit before this Court.
[10] The
other objection, in
limine,
to the interdict application, assumes that the interdict application,
heard as an opposed matter on 9 March 2005, almost a year later, was
still in opposition to the admission application. In her replying
affidavit, filed on 3 June 2004. Ms. Steinmann explained:
“2.2 the application of the
applicant was filed in opposition to the application for admission of
first respondent and it was intended to be an application to be heard
on the same day (in the form of a counter application).
Although this might not have been indicated in so many words in the
affidavit that was the intention. The idea was always that the
application for admission should be dismissed, and that the first
respondent (and other respondents) be prohibited, on the same day to
continue with any of the acts stipulated in the applicant’s
Notice of motion.
2.3 in any event, and in
as far as it is necessary, the applicant applies for condonation for
using the short form. I respectfully submit that
2.3.1 the transgressions
of the respondents are so material that the non-compliance of the
applicant with the Rules (in respect of the long form) should be
condoned;
2.3.2 in any event, the
first respondent does not and cannot suffer any prejudice as a result
of any such non-compliance. In this regard I particularly point out
that the parties have now agreed to file papers. The first
respondent has already filed his opposing affidavit, as well as his
‘argument’. He has also filed his opposing affidavit on
behalf of the second and third respondents.”
[11] Mr.
Kamwi’s submission in this regard is that he initially treated
the interdict application as a separate matter, and filed his
opposing affidavit accordingly. He only discovered the application
was in opposition to his admission application when Ms. Steinmann’s
replying affidavit was filed. He insisted that in that case the Law
Society should have complied with Rule 6(4) (b) of the High Court
Rules which requires that any person having an interest in any
application being brought ex
parte
may deliver a notice of an application by him or her for leave to
oppose supported by an affidavit setting forth the nature of such
interest and the grounds upon which he or she deserves to be heard.
He
submitted before Gibson J that the application should be dismissed
for lack of compliance with the said Rule.
[12] The
record reflects no ruling on this point by Gibson J, nor does her
judgment show she considered the application to dismiss the Law
Society’s application or that the condonation application was
formally made and ruled upon. All that the court said in this
connection was;
“Ms. Steinmann says as Director
of the Law Society, she has to keep records of the Society. From
these she knows that the first respondent is not registered as a
candidate Legal Practitioner nor is he admitted as a legal
practitioner under the provisions of the Act. In spite of this
handicap, the first respondent has launched an application before
this Court seeking to be admitted as a paralegal or legal
practitioner. Ms. Steinmann has annexed copies of the application to
the application and makes it clear, and right, that in terms of the
objectives of the society; set out hereinbefore the applicant was
obliged to intervene.”
It
is clear from her judgment that Gibson J treated the Law Society’s
application as a separate substantive application. Indeed Mr. Dicks
pointed out in answer to the various complaints raised by Mr. Kamwi
in his submissions, that:
“This application… is a
separate substantive application to interdict unlawful conduct.”
[13] At
the stage when the application was heard, the application for
admission had become a thing of the past. Therefore proceeding in
terms of the Rules relied on by Mr. Kamwi would have been an exercise
in futility, as such a step had become redundant. The same
considerations would apply to Mr. Kamwi’s complaint that if the
Law Society’s application was meant as a counter-application to
his admission application, Rule 6 (7) (a) and (b) of the Rules of the
High Court should have been followed.
[14] The
ground of appeal listed as number 6 in Mr. Kamwi’s Notice of
appeal is, to say the least, frivolous. The letter he refers to
states the following.
“The Council of the Law Society
received information that a letter by Mr. Kamwi has been placed in
the Court file.
The matter is on the roll on Friday,
4th
February 2005.
We are of the opinion that letters
addressed to the Registrar and/or Judge-President should not remain
on the court file for public record as they do not form part of the
proceedings.
Members of the press might interpret
letters, such as the one mentioned, out of context which can lead to
unfair and/or false reporting. These in turn may damage the
reputation of a legal practitioner.
We kindly request you to remove the
letter from the court file referred to above.”
The court file referred
to was in the matter between the Law Society of Namibia and Alex
Kamwi and the second and third respondents i.e. the Law Society
interdict application. How a request to remove from the file a
letter addressed to the Registrar or Judge-President, and not filed
as a document in the proceedings concerned, could amount to defeating
or attempting to defeat the course of justice or to corrupting the
court beggars belief.
[15] Grounds numbers 1
and 3 form the crux of Mr. Kamwi’s complaint in respect of the
two orders made by the two Judges whose judgments are concerned in
this appeal. He unqualifiedly relies on Article 21 (i) (j) of the
Constitution. That unqualified reliance on Article 21 (i) (j) is
stated in so many words in his submissions before Gibson J, and to
this Court. As Mr. Dicks rightly observed in submission before that
court:
“Mr. Kamwi believes that there
is freedom in this country to practice any occupation you wish, if
one wants to practice as a legal practitioner there should be nothing
stopping you from doing so, one should have the freedom to do so.
Unfortunately that freedom is curtailed by Article 21 (2) of the
constitution which he
conveniently fails to refer
to.”
[16] The required
qualifications to be admitted as a legal practitioner were stated in
Ms. Steinmann’s affidavit, in Mr. Dicks heads of argument and
in Gibson J’s judgment. They need not be repeated here. While
Mr. Kamwi vigorously denies that he applied to be admitted as a legal
practitioner, in essence he contradicts this denial in many ways.
For example, during his submissions in this Court he was pertinently
asked to specify the things he was seeking to be authorized to do.
In substance he listed all the things which a person who is not
admitted as a legal practitioner is forbidden to do by Section 21 of
the Legal Practitioners Act. Mr. Kamwi identifies himself as one
with second and third respondents, in paragraph 6.1.7 of his heads of
argument in this appeal he baldly states:
“If a paralegal firm’s
memorandum of Association / founding statement is incorporated in
terms of section 4 of Act 61 of 1973 / section 13 (1) and 14 (2) of
Act 26 of 1988 as amended and he or she is issued with a certificate
to commence his or her business by that law he or she may prepare
summons or process or commence, carry on or defend any action, suit
or other proceedings in any court of law in
the name of or on behalf of any other person.
See Article 98 (2) of our Constitution.” (My underlining)
[17] Gibson J dealt with
the provisions of Article 21 as a whole and concluded that Mr.
Kamwi’s interpretation of “the meaning of the word”
profession in sub article (i) (j) of Article 21 is incorrect. I
agree.
[18] Except for a few
quibbles (e.g. about who issues a summons, the registrar/clerk of
court or the legal representative of a party) Mr. Kamwi does not deny
doing what the Law Society complains he and the other entities he
represents do. He claims he does all that on the authority of
Article 21 (i) (j). He
submits in
paragraph 4.7 of his heads of argument: (in respect of his ex parte
application)
“I submit that the Court erred
in law for finding that there is no basis in Law on which to grant me
the relief sought, I say so because in terms of Article 1 (6) of our
constitution, the Namibian Constitution which provides in Article
21(i) (j) that all persons shall have the right to practice (as is)
their profession or carry out any occupation, trade or business, is
the Supreme Law of Namibia. It is the most authoritative and thus
binding source of law. Therefore, to say that there is no basis in
law is a fantasy because no law in Namibia or elsewhere is above our
Constitution.”
One only needs to imagine
Mr. Kamwi advising a lay client along such lines to see the real
danger to the public posed by an unadmitted person purporting to act
as a legal practitioner. It is from such dangers that the Law
Society is duty bound to protect the public. In her founding
affidavit Ms. Steinmann referred to other professions which prescribe
qualifications to be acquired before a person can be authorized to
practice, and regulations governing the practice of such professions.
The legal profession is not an exception.
[19] In paragraph 10 of
his heads of argument Mr. Kamwi makes the following submission:
“Further, it is submitted that,
the Court a quo
failed to bear its mind on the question because a proper reading of
Article 21 and 22 of our constitution entails that all persons shall
have the right and shall be free to practice any profession, or carry
on any occupation, trade or business, unless where any law regulating
that profession, occupation trade or business reasonably restricts
(or which restricts practicing as a paralegal in any manner) any
person to practice as a paralegal practitioner and in the absence of
such law, the appellant was and is entitled by virtue of the Supreme
Law Article 21 (i) (j) to practice as a paralegal practitioner and
the court was supposed to uphold this right and freedom.”
The answer to this
broadside submission is first, the submission by Mr. Dicks before
Gibson J, (with which I agree), that
“The applicant is not asking for
the second and third respondents to cease business altogether in
terms of paragraph 6 of the Notice of Motion we are only asking for
them to cease with those activities which are illegal (or which fall
foul of the laws of this country.”)
Secondly the answer lies
in the observation of Gibson J when she correctly observes in her
judgment:
“It would seem that the first
respondent too has certain doubts about his entitlement to practice.
I say so because of the nature of the relief he sought in his
application of 2004, namely that the High Court should order the
relevant Ministry to amend the Acts so as to permit ‘paralegal’
to be allowed to practice.
As a student of the Constitution the
first respondent should be the first to realize that under the
doctrine of separation of powers, the courts and the judiciary have
no role to play in the making and amendment of the laws. Therefore
it is up to him as an interested member of the public to approach
members of the legislature and lobby for the change in law that he
undoubtedly needs.”
[20] In respect of his
ground of appeal number 2, namely that both Van Niekerk J and Gibson
J failed to note the amendments introduced by Act No. 4 of 1997 (the
Legal Practitioners Amendment Act), Mr. Kamwi filed supplementary
heads of argument in which he purportedly relies on the amendment of
section 22 of the principal Act by section 3 of the amending Act.
Sect 3 (2) provides that the provisions of section 22 (as amended)
shall not apply to –
“a)
………………….
any person in the employment of the
state or anybody corporate established by any law, preparing or
drawing up any of the documents or instruments concerned in the
course of his or her official duties;
a person acting in the capacity of
trustee of an insolvent estate or executor, administrator or
curator, or liquidator or judicial manager of a company or close
corporation, or deputy sheriff or messenger of the court by virtue
of an appointment by a competent authority in terms of any law,
drawing up or preparing any of the documents concerned in the course
of his or her statutory duties and receiving such fees as may be
allowed by law.
……........................”
Section 22 of the Act as
substituted reads:
“22(1) Any person, not being a
legal practitioner, who prepares or draws up for or on behalf of any
other person any of the following documents, namely-
a will or other testamentary
instrument;
any contract, deed or instrument
relating to the creation or dissolution of a partnership or a
variation of the terms thereof;
any contract, deed or instrument for
the acquisition, disposal, exchange or lease of immovable property
or a right relating to immovable property, other than a contract for
the lease of immovable property for a period of less than five
years.
The memorandum or articles of
association or prospectus of a company and who charges, demands or
receives any fee or reward, whether in cash or in any other form, or
knowingly permits any other person to charge, demand or receive any
such fee or reward, for services rendered by him or her in
connection with the preparation or drawing up of such document,
shall be guilty of an offence and liable on conviction to a fine not
exceeding N$100 000 or to imprisonment for a period not exceeding 5
years, or to both such fine and such imprisonment.”
Mr. Kamwi’s
purported reliance on the amendment need no serious consideration
because it is hedged in a way that shows that he himself does not
believe a paralegal is thereby empowered to do what the Act forbids
to be done by a person who is not a legal practitioner. Thus, in
paragraph 6 of his supplementary heads he concludes.
“In the premises it is my
submission that Respondent’s provisions relied on in the legal
practitioners Act 1995 prohibiting Appellant to
render legal services
because he is not an admitted lawyer
should be declared repugned and struck out, or alternatively a
provision in section 2 of the legal practitioners amendment Act No. 4
of 1997 is inserted reading that: except
for a Paralegal Practitioner, or for a person who in so far as he or
she is authorized by any other law such as the company Act or close
corporation Act or any other law. It is also my submission that a
provision in section 3, subsection 2 be inserted which provides that:
“the provision for subsection (1) shall not apply (e) to a
Paralegal Practitioner, or a certified person owning a private
company in terms of company Act 61 of 1973 or close corporation Act
26 of 1988 as amended to draw up or prepare any document referred to
in section 3, subsection 22 (1) (a) (b) (c) and (d). It is also my
submission that while the judgment may reserved the Honorable Court
allow Appellant to continue rendering the incorporated services in
terms of that law under which the services are incorporated.”
(Underlining is mine)
[21] I was obliged to
quote, as I did, the remarks by Gibson J, because the same argument,
that the Court should play the role of amending the law, was advanced
by Mr. Kamwi in so many words before this Court. He talked about the
Court compiling a dossier in the matter as the High Court should have
done;
“to do away with the colonial
practice and laws that denied us our fundamental rights and freedom
..”
It would appear that, in
this connection, Mr. Kamwi’s submission was based on a
definition of a paralegal taken from a source which he did not
identify, namely:
“‘a person qualified
through education, training or work experience to perform substantive
legal work that requires knowledge of legal concepts and is
customarily but exclusively performed by a lawyer, and this person
may be retained or employed by a lawyer, law office, government
agency, or other entity or
may be allowed by administration, statutory or court authority to
perform this task
independently.” (Underlining mine)
And in the next
paragraphs of his submission, following the above definition, Mr.
Kamwi quoted “South Africa’s legal draft bill” as
defining a paralegal practitioner as:
“a person who may render legal
services by representing other persons in a court of law.”,
and then went on to
submit that in South Africa “paralegals are hired by the
Justice Department to work in Courts to give advice to the people in
need”.
[22] That there may be
need for legislation in this country to enable paralegals to do what
they are allowed by legislation to do in other countries is
undoubted. For example, one of the documents Mr. Kamwi produced
before this court, entitled “Access to Justice in South
Africa,” says, on the Australian
experience,:
“To its credit the Federal and
state governments recognized the value of paralegals working within
these communities and passed legislation entitling paralegals to
appear in the courts of Australia on behalf of Aboriginal people who
would otherwise have had no representation. Legal aid offices were
often not established in remote areas. It frequently happened that
the average paralegal was better versed in the application of the
criminal law than the latest law school graduate entering the service
of one or other law practices.”
In his submissions to
Gibson J, I note, Mr. Kamwi dwelt at length on what he obviously
believes were the injustices of the past, and the need for a
political order that addresses the wrongs suffered by the majority of
the people in this country. He seems to derive inspiration from,
inter
alia, the
speech of the Minister of Justice in her address on the occasion of
the 2007 start of the Legal Year wherein she said, inter
alia;
“Ultimately, the jurisprudence
that must develop must evince the total independence of the country’s
law courts and to deepen and strengthen democracy while serving the
needs of all the people and not just an elitist class.”
In this regard it is only
pertinent to remind Mr. Kamwi that the Legal Practitioners Act No 15
of 1995 is a post-independence piece of legislation that saw the need
to regulate the legal profession in this country and that, as
submitted by the applicant in the interdict application, several
other professions in this country are similarly regulated. In any
case, to the extent that Mr. Kamwi seeks amendment, or declaration of
invalidity of sections of the Legal Practitioners Act, such an
application is not properly before this Court for the simple reason
that interested parties like the Attorney-General or the Minister of
Justice who is responsible for its administration have not been
cited.
[23] For the various
reasons discussed in this judgment the appeal against both orders
must fail, and I make the following order:
The appeal against the
orders respectively made by Van Niekerk J on 24 May 2004 and the
order made by Gibson J, on 9 March, 2005 is dismissed.
Both orders are
confirmed.
Mr. Kamwi is ordered to
pay respondent’s costs of appeal.
___________________
MTAMBANENGWE,
AJA
I
concur.
________________________
SHIVUTE,
CJ
I
also concur.
________________________
STRYDOM, AJA
COUNSEL | IN |
| |
COUNSEL | MR. |
INSTRUCTED | DR. |