Read judgment in Kamwi v Standard Bank
Read judgment in Ex parte, Kamwi
While the difficult question of recusal continues to plague courts in the region, a most bizarre case raising the matter has emerged in Namibia.
During May 2020 the civil courts delivered two decisions that involved the same party: Alex Mabuku Kamwi. Kamwi, it turns out, is a paralegal desperate to be admitted as an attorney. He has had no luck in his efforts because he does not have the required qualifications. But that has not stopped him from trying. It has also not stopped him from litigating on other issues.
In the case of Kamwi v Standard Bank, Kamwi was sued by the bank for money it said he owed. After the bank withdrew its action against Kamwi, having tendered wasted costs, Kamwi prepared a bill of costs. Among others, he claimed for rental of office space, computer and other equipment as well as a claim for furniture from a company of which he was the sole shareholder. This extraordinary bill was presented to the taxing master, and met strong objections by the bank. Kamwi was called on to produce bank statements proving that the amounts claimed had actually been incurred. When he failed to produce the documents, the taxing master ruled that Kamwi should ‘issue summons for the disbursements’ he claimed, and did not proceed with the taxation.
Eventually the matter was referred to Judge David Smuts, at that stage a member of the high court, though he is now a Supreme Court judge. Judge Smuts, acting in terms of the rules of court, set aside the taxing master’s ruling and instead, ordered that all the items claimed by Kamwi should be disallowed. In addition, the judge said the court registrar should refer the matter to the law society, the prosecutor-general, and the tax authorities, to investigate whether Kamwi had contravened certain laws.
Though Kamwi filed an application for leave to appeal, he did not file his application within the time limits.
The matter seems to have got lost and was not dealt with until January 2020 when it was allocated to and heard by Judge Nate Ndauendapo. Kamwi, who argued the matter himself, said that he had a reasonable apprehension that Judge Smuts was biased against him in that he had been chair of the bank’s board of directors since 2007 as well as being a shareholder in the bank. As a result of discovering these facts, not disclosed by the judge, he claimed that his fair trial rights had been violated and he thus wanted leave to appeal the decision made by Judge Smuts.
Though Kamwi argued that the judge was biased and ought to have recused himself, Judge Ndauendapo did not agree. He said it was public knowledge that the judge had chaired the bank’s board. However, in view of Namibian and other decisions on disclosure and recusal, Judge Smuts should have disclosed his relationship with the bank so that Kamwi could have asked for the judge’s recusal if he had wanted to do so. But Judge Smuts's decision in the Kamwi matter ‘does not show that fact (chairmanship of the bank) was disclosed’.
Given that background, there was a reasonable prospect of success and Kamwi was thus given leave to appeal.
But even if Kamwi may now appeal this particular outcome, he failed conclusively in the second matter decided during May. Heard by Judge Thomas Masuku, this case involved Kamwi’s ongoing efforts to be admitted as an attorney.
The reader is immediately aware that Judge Masuku presided because of his very particular style. He begins by noting how exciting it is for someone to be admitted as an attorney: all the years of hard work, discipline and sacrifice at last pay off. But this ‘exhilarating occasion’ had eluded Kamwi on several occasions. Though doggedly determined to have his day of celebration, he had lost applications for admission both in the high court and on appeal.
‘It is fitting to state that (Kamwi) is a truly indefatigable character. He appears yet again before this court. Knocking on the very same door that has previously denied him ingress into the profession – the sense of thrill and exhilaration that accompanies admission and enrolment, as aforesaid.’
What would happen this time, asked the judge. Were the omens any better? Would Kamwi succeed or meet the same fate as before? ‘This judgment answers that very question,’ said Judge Masuku.
The judgment consists of 69 numbered paragraphs, but the conclusion can be summed up very quickly.
Kamwi's application for admission was rejected because he did not meet the mandatory requirements. He had made three previous unsuccessful attempts to be admitted but the law society could not agree to support his applicaiton since he had still not met the academic and other requirements for admission.
Judge Masuku took exception to the language used by Kamwi in his criticism of the court because of its decision not to admit him, saying that his language in itself called into question whether he was fit to be admitted. ‘This is because he willy-nilly, but wrongly, accused the court of violating constitutional principles.’ Judge Masuku commented, ‘It is very dangerous when a litigant, who intends being admitted as a legal practitioner, makes such allegations, based on his or her own misguided reading and interpretation of the … law.’
The qualifications claimed by Kamwi were obtained from institutions that were not recognised in the law as accepted for admission in Namibia. The inescapable conclusion was that Kamwi ‘dismally failed to make out any case for his admission’. ‘It becomes as clear as noonday that he has completely failed to comply’ with the mandatory provisions for admission. The court’s hands were tied in such matters and it had no discretion. ‘It is an all or nothing case. This marks the end of the road.’
Given Kamwi’s ‘naked failure’ to comply with the mandatory provisions related to admission, he could not conceivably succeed. ‘His insatiable desire to be admitted’ without compliance with the law, ‘make the case one for inevitable failure.’
As to costs, Kamwi ‘has been unsuccessful in his latest attempt to don the legal practitioner’s stately robes’ and the law society ‘should not be out of pocket in the circumstances.’
Clearly, Kamwi would ‘move heaven and earth’ to achieve admission, said the judge. Though he would not agree to a punitive costs order this time, as requested by the law society, he wanted to warn Kamwi that the time might come for the court, faced with an application on ‘spurious grounds’ and with ‘no foundation in the Act, to let loose its entire ire on him’, doing so with an appropriate, punitive costs order.