23 January 2013

Namibia: Judge President Warns Lay Litigant

LAY litigant August Maletzky must convince the High Court on February 13 why the Namibian Police and the prosecutor general should not prosecute him for practising law without being an admitted legal practitioner.

In a ruling given on Friday, Judge President Petrus Damaseb said Maletzky must explain why he should not issue an order to dismiss a case Maletzky had filed with the High Court "and for referral of the matter to the inspector general of the police and the prosecutor general".

According to Damaseb's ruling, Maletzky approached the High Court on February 29 last year and stated that he was attached to the African Labour and Human Rights Centre in the Continental Building in Independence Avenue.

Maletzky sued Cleopas Zaaluka for N$53 000 with interest at 20% per year from the date of the judgement until the last payment.

This came after Zaaluka was allegedly involved in a car accident with Aktofel Angula - on whose behalf Maletzky approached the High Court.

Maletzky also asked that the court should rule that Zaaluka must foot the bill of the application.

According to Judge President Damaseb, the Legal Practitioners' Act prohibits a person who is not admitted as a legal practitioner from practising law. "Such a person is not subject to the discipline of the statutory Law Society or indeed the court as he or she is not an officer of the court."

Damaseb stressed that a person who is not admitted does not fall under the scrutiny of the Legal Practitioners' Act and cannot obtain a fidelity fund certificate "so that in the event of negligence or of theft of [a] client's money, members of the public are entitled to compensation from the Fidelity Fund created under the Act. For those practitioners practising without a fidelity fund certificate, the court retains the power to discipline them if they act improperly towards a client."

One option, Damaseb said, is to strike such practitioners from the roll. "There is therefore a very sound public policy rationale behind prohibiting non-admitted persons from practising law or taking instructions from members of the public and representing them in court."

In Damaseb's ruling, it is stated that according to the Act, a person who is not enrolled as a legal practitioner may not practise or in any manner pretend to be a legal practitioner.

Furthermore, such persons may not make use of the title legal practitioner, advocate or attorney or any other word, name, title, designation, description implying or tending to induce the belief that they are legal practitioners or recognised by law as such.

Moreover, people who are not admitted legal practitioners may not issue any summons or process or start, 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, except when authorised by any other law.

Maletzky fumed when approached for comment yesterday, referring to Damaseb's ruling as "embarrassing".

According to him, the judge president "passed judgement without hearing me. It goes without saying that I am extremely disappointed in the ruling. Obviously, I won't leave it there. I am totally taken aback."

Maletzky said he was "perfectly entitled" to approach the High Court. "I am taken aback by, in my view, with the greatest, respect an embarrassing judgement."

In his view, his constitutional rights were violated.

"I, August Maletzky, will in no way allow my constitutional rights to be affected."

He also lashed out at the Law Society, accusing it of being "an entity manned by functionaries of apartheid" and of standing "for an interest of a select group".

Maletzky emphasised that he still needs to peruse the ruling thoroughly, after which "I will put my position in a true and proper perspective".

Retha Steinmann, the director of the Law Society, yesterday said the matter would be discussed at their council meeting on Saturday. She would only be able to respond after that.

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