"1.
That the first and 2nd
defendants
in case No. I 3087/2006 are ordered to pay jointly or severally a
sum of N$6 000 000,00 hereto made up as follows:
1.1.
N$2 000 000,00 for loss of future income;
1.2.
N$1 000 000,00 for loss of business and professional profit;
1.3.
N$1 000 000,00 for interdiction caused by a fraudulent document -
MS2;
1.4.
N$1 000 000,00 for lost chance to gain a benefit (sic);
1.5.
N$170 000,00 for future expenses on account of damage-causing
events;
1.6
N$27
000,00 as costs incurred as a result of MS2;
1.7.
N$1 303 000,00 for false imprisonment occasioned by MS2;
1.8.
The interdiction order against applicant dated 9 March 2005 is
declared fraudulent and invalid;
1.9.
20% interest per annum on each amount above from 8 November 2006 to
date of final payment;
1.10.
Costs of suit.
1.11.
Further and/or alternative relief".
[3]
Mr. Slabbert who appeared on behalf of the defendants filed a notice
of motion in the following terms:
"1.
That plaintiff's notice in terms of Rule 31(1) dated 8 January 2008
be set a side as irregular proceedings ...(3) that the particulars
of the irregularity relied upon by defendants are that: the alleged
confessions on which plaintiff purportedly relies for seeking
judgment are not signed by Defendants personally and Rule 31(1)
accordingly has no application".
[4]
When the matter came before me on February 2008, Mr. Kamwi appeared
in person and the defendants were represented by Mr. Slabber. Having
heard submissions by both parties, I set aside the application as
irregular proceedings with costs and reserved my reasons. Herein
below are my reasons.
[5]
The application in terms of Rule 31(1) is supported by an affidavit
deposed to by Mr. Alex Kamwi. In that affidavit Mr. Kamwi alleges
that:
"4.
On the 4th
of
February 2005, 2nd
Defendant
represented by Adv. Dicks admitted or alternatively confessed and
acknowledged that notice MS2 is 'materially different' from AK 1
hereto annexed. Alternatively therefore, defendants admitted to
fraud and fault. This confession was made at the hearing before a
judge and is thus admissible in case of obtaining a judgment against
defendants and is conclusive evidence of the fact. Respondent (sic)
is reminded that their fraud consists not only in the wilful making
of the incorrect statements but also in the withholding of material
information with fraudulent intent. Respondents were aware or ought
to have been aware that they produced, manufactured and authored MS2
with intent to mislead, and to diverge to such an extent from the
true facts.
4.1
Respondents' admission above is a fact that is judicially noticed
and need not be proven as these are facts not subject to reasonable
dispute the respondents admitted and judgment against them should be
granted.
….......
4.3
Respondents agreed and acknowledged that MS2 is "materially
different" alternatively "fraudulent and forged" and
in terms of Rule 31(1) this qualifies the court to grant judgment
against respondents without any waste of time.
….......
9.
As the consequences of respondents' failure to settle this matter
out of court their confessions or admissions, plaintiff now seeks
judgment in terms of Rule 31(1) which provides that defendants (sic)
may at any time confess in whole or in part the claim contained in
the summons whereupon the plaintiff may apply in writing through the
registrar to a judge for judgment according to the confession. It is
in terms of this rule that I now seek a judgment against defendants
according to their confession or admission".
BACKGROUND
[6]
On 12 May 2004 second respondent launched an application, amongst
others, to interdict the applicant from practising or holding
himself out as a legal practitioner. The applicant opposed that
application. Annexed to the papers of the second respondent was a
document marked "MS2". "MS2" is a notice of
motion filed at court and purported to be signed by applicant in
which he sought an order in the following terms (sic), inter alia,
"(a) for me to be authorised to practice as a Paralegal
Professional Practitioner as provided for by the Constitution of the
Republic of Namibia, article 21(1) states that all persons shall
have the right to (j) practice any profession or carry on any
occupation, trade or business".
[7]
"AK1" is also a notice of motion which was filed at court
by the applicant and in which the applicant sought the same relief
as in "MS2". Paragraph (c) of "MS2" states:
"The
Legal Practitioners Act no 15 of 1995 section 5(1) states that a
person shall be duly qualified for the purposes of section 4(1)
which states that subject to the Provisions of this Act, the court
shall admit and authorize to practice as legal Practitioner (any)
person who upon application made by him or her, satisfies the Court
that he or she - (a) is a fit and proper person to be admitted and
authorised, (b) is duly qualified in accordance with the provisions
of section 5; and (c)(i) is a Namibian citizen. Section 5(b) states
that he/she holds a Degree, Diploma or Certificate in Law".
"AK1" does not contain the above allegations.
[8]
The application was heard on 4 February 2005. Mr. Dicks appeared on
behalf of the second respondent and Mr. Kamwi in person. During
legal argument Mr. Dicks submitted that "MS2" is
materially different from "AK1". Mr. Kamwi disputed that
he was the author and filed "MS2" at court. Based on the
submission by Mr. Dicks, Mr. Kamwi issued summons against first and
second respondents. In the amended particulars of claim he alleges
that (inter
alia).
"4.
On the 12th
of
May 2004, 2nd
defendant
instigated by 1st
defendant
applied to the above court to have plaintiff interdicted for
allegedly practicing as a legal practitioner basing their
allegations on a different document and or alternatively fraudulent
and forged document "MS2". At the same time 2nd
defendant
under the influence and instigation of 1st
defendant
falsely accused and laid criminal charges against plaintiff that he
was practicing as a legal practitioner.
...
Therefore, as a consequence of the defendants' fraudulent document
"MS2", plaintiff suffered:
(a)
Loss of future income N$2 million;
(b)
Loss of business and professional business M$1 million;
(c)
For interdiction resulting from a fraudulent "MS2" as
admitted by defendants N$1 million;
(d)
For lost chance to gain a benefit (sic) N$1 million;
(e)
For future expenses an account of damage - causing event N$170 000;
(f)
As costs incurred as a result of a fraudulent "MS2" as
admitted by defendants;
(g)
For false imprisonment resulting from a fraudulent "MS2"
document as admitted by defendant;
(h)
20%
interest per annum on each sum above from 8 November 2006 to final
date of payment;
(I)
Costs
of suit."
[9]
The respondents/defendants opposed the summons and also filed a plea
denying all the allegations.
[10]
On 8 January 2008 the applicant launched an application in terms of
Rule 31(1). As mentioned above, the notice in terms of Rule 31(1) is
supported by an affidavit deposed of by Alex Kamwi. In that
affidavit it is alleged that:
"4.
On the 4th
of
February 2005, 2nd
defendant
by Adv. Dicks admitted or alternatively confessed and acknowledge
that notice "MS2" is 'materially different' from "AK1"
hereto annexed. Alternatively therefore, defendants admitted to
fraud and fault. This confession was made at the hearing before a
judge and is thus admissible in case of obtaining a judgment against
defendants and is conclusive evidence of the fact.
9.
As the consequences of the respondents' failure to settle this
matter out of court despite their confessions or admissions,
plaintiff now seeks judgment in terms of Rule 31(1) which provides
that defendants may at any time confess in whole or in part the
claim contained in the summons whereupon the plaintiff may apply in
writing through the registrar to a judge for judgment according to
the confession. It is in terms of this rule that I now seek a
judgment against defendants according to their confession or
admission."
[11]
Rule 31(1) provides as follows:
"31(1)
save in actions of divorce, restitution of conjugal rights, judicial
separation or nullity of marriage, a defendant may at any time
confess in whole or in part the claim contained in the summons. Such
confession shall be signed by the defendant personally and his or
her signature shall either be witnessed by counsel acting for him,
not the counsel acting for the plaintiff, or be verified by
affidavit, and furnished to the plaintiff, whereupon the plaintiff
may apply in writing through the registrar to a judge for judgment
according to such confession".
[12]
The requirements of the rule with regard to the mode of execution of
the confession have been held to be peremptory. In Sunset
Investments PTY LTD v Bramdan
Van
Heerden J stated as follows:
"the
requirements of the Rule as regards the mode of execution are, in my
view, peremptory. That this is the intention of the Rule flows, I
think, firstly from the use of the word 'shall' in regard to the
saying of the confession by the defendant personally and the
witnessing thereof by an attorney or the verifying by affidavit such
use is, generally speaking, a useful guide that a provision is
peremptory rather then directory."
[13]
In casu,
what
Adv. Dicks admitted to i.e. (that "MS2" is materially
different to "AK1") does not by any stretch of the
imagination amount to a confession in whole or in part to the claim
contained in the summons of Mr. Kamwi against the defendants. In
addition, the second respondent, on whose behalf, Mr. Dicks appeared
did not sign the so-called confession as contended by Mr. Kamwi.
Also during
those proceedings when the so-called confession or admission was
made, the first respondent was not party to those proceedings and
therefore whatever Mr. Dicks submitted, it was on behalf of the
second respondent.
[14]
For all the above reasons, a case has not been made out in terms of
Rule 31(1) by the applicant against the respondents.
[15]
In the result, the application in terms of Rule 31(1) is ruled as
irregular proceedings and is set aside with costs.
NDAUENDAPO
J
ON
BEHALF OF APPLICANT:
Mr.
Alex Kamwi
Instructed by:
ON
BEHALF OF RESPONDENTS:
Adv.
Dicks
Instructed
by: Weder,
Kauta & Hoveka Inc.
Kamwi v Steinmann and Another (I 3087/06) [2011] NAHC 93 (28 March 2011);