Law Society of Namibia v Kamatuka (HC-MD-CIV-MOT-GEN-2023-00372) [2024] NAHCMD 286 (5 June 2024)
Facts
Haroldt Kamatuka (the respondent) was admitted as a legal practitioner of the court on 24 June 2022. The Law Society of Namibia (the applicant) sought a rule nisi calling upon him to show cause why his name should not be struck from the legal practitioners’ roll (the roll).
It was alleged that Kamatuka held himself out to be a legal practitioner and drafted a will for the complainant for which he received payment while he was a candidate legal practitioner. It was further alleged that Kamatuka thereafter held himself out to be a practising legal practitioner with his own firm accepting money from the complainant in his capacity as legal practitioner while he did not have his own firm, a trust account, or a fidelity fund certificate, nor was he exempted from holding such certificate.
It is also alleged that Kamatuka failed to refund the complainant the balance of a transfer made to him on 28 December 2022 and that Kamatuka registered an immovable property bought with those funds in his name and that of his wife without thereafter registering and transferring it to the third party for whom the house was intended.
Those complaints were referred to the Disciplinary Committee for Legal Practitioners, the second respondent. Beyond those complaints, it was alleged that Kamatuka was untruthful in his admission application to the court back in 2022 in that he failed to disclose his criminal convictions for theft, fraud and bribery in that application.
Kamatuka opposed the application on the basis that the matter should be decided by the Disciplinary Committee, not the court, the applicant cannot usurp the Disciplinary Committee’s powers, and the applicant does not have the power to approach the court directly for the relief sought. The applicant argued that the application goes beyond the complaint to the Disciplinary Committee, the Disciplinary Committee is non-functional, and as the legal profession’s custos morum in pursuit of its statutory duties and functions in the public interest, it prayed that the court exercises its inherent supervisory jurisdiction over Kamatuka.
Kamatuka failed to address important matters raised in the founding affidavit beyond those contained in the disciplinary complaint. His answer to those allegations was contained in a ten-word statement that: ‘l have no criminal record in the Republic of Namibia’. The applicant further sought a punitive cost order against Kamatuka. No relief was sought against the Disciplinary Committee, but adverse allegations, among others, that it is non-functional, were made against it and were left unanswered by the Disciplinary Committee.
Findings
Held that the court has an inherent supervisory jurisdiction, derived from the common law, independent from the applicant’s standing, to supervise the legal profession in the public interest which is not limited by the legal profession’s regulatory legislation unless expressly limited by that legislation. The Legal Practitioners Act 15 of 1995 (the Act) does not limit that jurisdiction or prohibit the applicant from bringing an application under s 32(1). The court needs not defer the matter to the Disciplinary Committee. The applicant, acting within its statutory powers and furthering its statutory objects as the legal profession’s custos morum (gurdian of morals) in the public interest, is empowered to bring the application.
Held that one is not dealing with one entity usurping another’s powers. An application to have a legal practitioner’s name struck off the roll is not an ordinary civil proceeding but a sui generis (of its own kind) statutory process of a disciplinary nature, and such proceeding is that of the court, not of the parties. The applicant’s role is to bring evidence of the misconduct before the court for it to exercise its disciplinary powers. The proceedings are not subject to all the strict rules of the ordinary adversarial process, and evidence which would have been inadmissible in ‘civil proceedings’ may be considered in disciplinary proceedings against a legal practitioner before the court.
Held that if having regard to the nature of the charges, a legal practitioner is no longer considered to be a fit and proper person to remain a legal practitioner, the applicant may proceed with an application striking his name off the roll without pursuing formal charges before the Disciplinary Committee. The legal practitioner has no right to insist on a disciplinary enquiry prior to steps being taken for his removal from the roll. The court can mero motu (of its own accord) initiate steps to strike a legal practitioner’s name off the roll.
Held that the scope of the application goes beyond the scope of the disciplinary complaint against Kamatuka and Kamatuka’s conduct relating to his admission application and the public interest not only makes it sufficient but necessary for the court to seize the matter and enquire into Kamatuka’s fitness and propriety to remain a legal practitioner notwithstanding the disciplinary proceedings.
Held that in ex parte (one party) applications, like Kamatuka’s admission application, the deponent should adhere to the requirements of uberrima fides (utmost good faith) and an applicant has a duty to disclose each and every fact and circumstance which might influence the court in granting or withholding the relief. Failure to do so is a breach of good faith. The profession of a legal practitioner requires the utmost good faith from legal practitioners and aspirant legal practitioners. There is no doubt that criminal convictions are material and relevant to the question of whether an applicant is a fit and proper person for admission as a legal practitioner.
Held that the information in the 2 August 2023 letter that Kamatuka has previous convictions of fraud, theft and bribery is accepted as true and correct until contrary evidence is presented. Kamatuka’s ten-word statement that he has no criminal record in the Republic of Namibia does not answer the contents thereof or the allegation that he failed to disclose his criminal convictions in his admission application.
Broad denials have no place in disciplinary proceedings before the court. Kamatuka, in breach of his full disclosure and good faith duties, failed to disclose his criminal convictions to the court in his admission application. That is sufficient for the court to conclude that he is not a fit and proper person to remain a legal practitioner and strike his name from the roll.
The crimes of fraud, theft and bribery are all serious offences involving elements of dishonesty, which fundamentally goes against the standard set for a legal practitioner which had to be disclosed and his non-disclosure renders him unfit to remain a legal practitioner. The criminal convictions are prima facie proof that Kamatuka committed offences and as they are sufficiently serious, they are prima facie proof that he is unfit to remain on the roll.
Held that, on a balance of probability, Kamatuka was untruthful to the court under oath in his admission application about his place of employment and he was furthermore untruthful under oath in an affidavit submitted to the applicant. A legal practitioner who is untruthful under oath may be considered unfit to remain a legal practitioner. In Kamatuka’s case, he is considered unfit to remain a legal practitioner.
Held that, on a balance of probability, the relationship between the complainant and Kamatuka was that of client and legal practitioner. Furthermore, Kamatuka held himself out to be a legal practitioner, he made use of the title legal practitioner, and he drafted a will for the complainant for which he received a fee or reward while he was a candidate legal practitioner.
Also, thereafter he held himself out to be a practising legal practitioner with his own firm accepting money from the complainant in his capacity as legal practitioner while he did not have his own firm, a trust account, or a fidelity fund certificate, nor was he exempted from holding such certificate. Such conduct amounts to unprofessional, dishonest, and unworthy conduct, rendering Kamatuka unfit to remain a legal practitioner.
Held that it is unprofessional, dishonest and unworthy of Kamatuka that the complainant had to institute a civil suit against him for the immovable property to be transferred and registered in his name and for repayment of N$1 ,35 million in respect of the transfer he made to Kamatuka on 28 December 2022 while Kamatuka undertook to repay the complainant in July 2023 and while it is common cause that the Okahandja property was bought with the complainant’s money for a third party and that, according to Kamatuka, his instruction was to ‘transfer’ the property to the third party’s name.
Furthermore, Kamatuka failed to explain why he kept the house registered in his name until 2023 when the complainant had to sue him for it, and why he has, to date, not repaid the complainant his money.
Held that based on the facts currently before the court, the court’s current findings, and in the public interest, the application should succeed, and the rule nisi should include an order as to why the matter should not be referred to the Prosecutor-General for fraud, theft, perjury and the contravention of ss 20(1), 21 (1 and (b) and 22(1)(a) of the Act.
Held that applying the general rule on costs, costs follow the event, and applicant is entitled to its costs. The court further exercises its discretion to award the applicant costs on an attorney-client scale. The applicant, acting reasonably, approached the court pursuant to its statutory objects and public duty and it should not be out of pocket for doing so. Kamatuka’s conduct, which gave rise to and necessitated the application, justifies an adverse punitive cost order.
Court order
1. A rule nisi was issued calling upon the first respondent, Haroldt Kamatuka, to show cause on or before 5 July 2024 why:
a. given his unprofessional, dishonest, and unworthy conduct, his name should not be struck from the roll of legal practitioners.
b. the matter should not be referred to the Prosecutor-General for fraud, theft, perjury, and contraventions of sections 20(1), 21 (1)(a) and (b) and 22(1)(a) of the Legal Practitioners Act 15 of 1995.
2. The first respondent must pay the applicant’s costs on the attorney-client scale.
3. The matter is postponed to 17 July 2024 at 08:30 for the return of the rule nisi.
Visit https://consultfasz.com/ for more Concise Law Reports.