The Law Society of Namibia v Mukonda (HC-MD-CIV-MOT-GEN-2022/00328) [2023] NAHCMD 149 (28 March 2023)
‘[2] The … Law Society of Namibia is a corporate body established in terms of section 40 of the Legal Practitioners Act 15 of 1995 (Act 15 of 1995) (‘the Act’). It is capable of suing and being sued in its own name, and some of its objects, as contained in section 41 of the Act, are:
‘(a) to maintain and enhance the standards of conduct and integrity of all members of the legal profession;
(b) to present the views of the legal profession;
(c) . . .;
(g) to define and enforce correct and uniform practice and discipline among members.’
The Law Society of Namibia, on an urgent basis, on 28 July 2022 approached the High Court seeking the temporary suspension of the first respondent (a Legal Practitioner) from practice pending the determination of the complaint lodged with the Disciplinary Committee against him in terms of section 35(1) of the Act. The Law Society further sought the appointment of the Director of the Law Society as the curator bonis, duly assisted by an agent, to be appointed for this purpose, to control and trust and business accounts of the respondent and his law firm; and all client files insofar as it pertains to its trust account, pending the determination of the complaint lodged with the Disciplinary Committee.
The application was not opposed by the first and second respondents and on 28 July 2022 the court heard the matter on an urgent basis and granted the relief sought by the Law Society and temporarily (until 05 September 2022) suspended the respondent, from practicing as a legal practitioner pending the determination of the complaint lodged with the Disciplinary Committee against him. The court furthermore temporarily appointed Ms. Margaretha Steinmann (the former Director of the Law Society), assisted by an agent to be appointed, as the curator bonis to take control and administer the trust and business accounts and all client files of the legal practitioner’s firm insofar as the files pertain to the trust account pending the determination of the complaint lodged with the Disciplinary Committee. The suspension of was on 05 September again extended until 7 October 2022.
On 7 October 2022 the Law Society again approached the court on an urgent basis, seeking a further extension of the temporary suspension of the respondent legal practitioner from practicing as a legal practitioner and the appointment of the Director of the Law Society as the curator bonis in respect of the trust and business accounts and the files relating to that trust account. The first respondent, on 14 October 2022, indicated that he on his own behalf and on behalf of his law firm will oppose the application for the extension of the orders granted on 5 September 2022.
In opposition, the respondents raised four points in limine namely, that the court is functus officio and cannot grant the relief sought by the Law Society, secondly, the Law Society failed to comply with rule 32(9) & (10) when it launched the application on 7 October 2022 and such failure is fatal to the application, thirdly, it was alleged that the Law Society failed to exhaust internal remedies available to it before it launched the present application and fourthly, it was contended that the Law Society impermissibly launched a group action.
As a basis for seeking the revival of the appointment of the curator bonis, the deponent to the Law Society’s founding affidavit stated that the Law Society established that the respondents’ trust account books were not kept in accordance with the Act, as amended. Furthermore, the first respondent did not keep a proper filing system and records and because not all documents were in the files, it was almost a frustrating process to get sufficient and correct information from the files, thus resulting in the delay in administering the files.
Consequently, and due to the voluminous files now in the possession of the Law Society, it could not properly administer and control all of the respondents’ client files within the extension period granted by the court on 7 September 2022. A further ground advanced was the fact that the Disciplinary Committee had not yet commenced with disciplinary proceedings against the respondent. Consequently, the Law Society asked for a further extension of 30 days. It furthermore transpired that the respondent legal practitioner did not apply for a fidelity fund certificate for the year 2023.
In addition to the points in limine raised in opposition, the respondent denied the allegation that he did not keep a proper filing system and records of his books of account. He alleged that the application was not urgent and if there was any urgency that urgency was self-created. He further contended that the Law Society was simply on a witch-hunt exercise and had already presumed him guilty. He further contended that the Law Society was abusing the court process and was subjecting the respondents to unfair proceedings and thus implored the court to dismiss the Law Society’s application.
The High Court examined the nature of the application before it and stated that:
‘[33] Applications relating to the suspension and strucking of legal practitioners from the roll are not the ordinary‚ ‘run of the mill‘ opposed civil disputes between parties. Applications of this nature are unique, sui generis and of a disciplinary nature. There is no lis between the Law Society and the respondents. The Law Society as the custos morum (the guardian of the morals) of the legal profession merely places facts before the court for the court to consider them and exercises its supervisory authority (Hassim v Incorporated Law Society of Natal 1977(2) SA 75 (A) at 767C-G. Law Society Transvaal vs Matthews 1989 (4) SA 389 (T) at 393 E. Cirota & Another v Law Society Transvaal 1979 (1) SA 172 (A) on 187H) (Solomon v Law Society of the Cape of Good Hope 1934 AD 401 at 408 – 9).
[35] In Disciplinary Committee for Legal Practitioners v Murorua and Another 2012 (2) NR 481 (HC) at 491 this court opined that s 32 of the Act gives the court the discretion to suspend a legal practitioner from practice. The discretion is, however, not an absolute discretion, it is a guided discretion. This discretion must be exercised based upon the facts placed before the court (Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A) at 637D – E). The facts in question must be proved upon a balance of probabilities. This court further held that the application under s 32 contemplates a three-stage enquiry:‘(a) First, the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is a factual inquiry.
(b) Second, it must consider whether the person concerned ‘in the opinion of the court’ is not a fit and proper person to continue to be a legal practitioner. This involves a weighing up of the conduct complained of against the conduct expected of a legal practitioner and to this extent, is a value judgment.
(c) Third, the court must inquire whether, in all the circumstances, the person in question is to be removed from the roll of legal practitioners or whether an order of suspension from practice would suffice.’
Having discussed the applicable legal provisions, the High Court held that:
a. With regard to the first point in limine, the statutory right which entitles the Law Society to approach this court for the temporary suspension of a legal practitioner is contained in section 32(3) of the Act. The court is satisfied that despite the fact that the court made a final order which would in general render the court functus officio, section 32 of the Act itself empowers the Law Society to approach the court for an extension of the suspension of a legal practitioner. The point in limine is meritless and is dismissed.
b. With regard to the second point in limine, in Di Savino v Nedbank Namibia Ltd, the Supreme Court found that a wide meaning is to be accorded to interlocutory orders and to include all orders upon matters ‘incidental to the main dispute, preparatory to, or during the progress of the litigation’. In the court’s view, the application by the Law Society is not incidental or preparatory to a main dispute. It is also not in the progress of litigation. The application by the Law Society to appoint the Director of the Law Society as curator bonis is thus not an interlocutory proceeding and rule 32(9) & (10) therefore does not find application. The second point in limine is dismissed.
c. Held further, with regard to the third point in limine, that firstly, the first respondent demonstrates his utter ignorance of the role of the Law Society vis-a-vis legal practitioner’s generally and the nature of these proceedings. Secondly, the Law Society first approached this court on 28 July 2022. In the affidavit filed in support of that application the Law Society refers to a letter dated 10 May 2022, in which it informed the respondent of the complaint against him and invited him to provide his version. The first respondent did not only ignore that letter, he ignored subsequent letters (the letter of 23 May 2022 and 1 June 2022) addressed to him. He also did not file any affidavit to contradict the allegations levelled against him when this application was launched. The third point in limine is thus meritless and is dismissed.
d. Held further, with regard to the fourth point in limine, that the Law Society allegedly instituted impermissible group action, is startling. The point he raises clearly demonstrates that he has no understanding or conception of the role of the Law Society nor does he have any appreciation of his obligations towards the Law Society, the public and this court. In view of what the court has said in this judgment on the nature of these proceedings and the obligations of legal practitioners to their clients and the public in general, the fourth point in limine is dismissed.
e. Held furthermore that the evidence and facts placed before court point to the fact that the first respondent displays an untenable attitude towards the legal profession’s regulatory framework. Instead of inspiring and maintaining the unconditional confidence of the community in the administration of justice, his conduct erodes and destroys the public’s confidence in the institution administering justice in this land. His conduct is contrary to what that of a legal practitioner ought to be.
f. Held furthermore that the court is of the view that the conduct of the first respondent is dishonourable, unprofessional and unworthy of a practitioner. As such and given the seriousness of the alleged infractions and the multitude of these infractions, the court is of the view that he cannot be entrusted with the responsibility of handling funds of members of the public. The only appropriate remedy is to appoint the Director of the Law Socity as a curator bonis to control and administer such trust account and the files of the the respondent and his law firm. Any other order will send the wrong message to the general public that any alleged misconduct of such a grievous nature is condoned by the courts.
As a result, the court granted the orders as prayed for.
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