29 January 2013

Namibia: Litigant Maletzky Called to Account in Second Case

A SECOND order directing an active lay litigant in the High Court, August Maletzky, to show why he should not be investigated and possibly prosecuted for practising law without being admitted as a legal practitioner, has been issued by a judge of that court.

A case in which Maletzky was asking the court to grant a default judgement against children's home and hospice Hope Village was supposed to be heard before Judge Dave Smuts on Friday last week. The hearing did not proceed because Maletzky was absent, but Judge Smuts then went on to deliver a judgement on the basis of Maletzky's involvement in the case and a suspicion that the Legal Practitioners Act was being bypassed in order to enable Maletzky to represent clients in court.

A week earlier, in another case in which Maletzky was also asking the court to grant a default judgement against a defendant that he is suing, Judge President Petrus Damaseb ordered him to present argument to the court on February 13 on why he should not dismiss Maletzky's claim and refer the matter to the inspector general of the Namibian Police and to the prosecutor general to investigate if Maletzky has been practising law without being an admitted legal practitioner.

Maletzky is a plaintiff in both cases on the basis of cessions in terms of which other parties who had claims against the respective defendants had ceded their rights of action to him.

In his judgement on January 18, Judge President Damaseb said it appeared to him at this stage that the cession of the right of action in the case before him was "a ruse intended to circumvent the provisions of" the Legal Practitioners Act, and to enable Maletzky to provide legal services which, in terms of the Act, he was not entitled to do.

In the case before Judge Smuts, Maletzky was a plaintiff based on cessions in which three close corporations - Treasure Trove CC, Wicked Entertainment CC, and Flashpoint Technologies - had ceded their rights to take legal action against Hope Village to him.

Acting as the plaintiff in the matter, Maletzky is suing Hope Village for about N$395 000, as well as half of the income from ticket sales for concerts that the British band UB40 had in Windhoek in February 2011. The three close corporations delivered services to Hope Village, which was trying to raise money through the events, for the concerts.

Like Judge President Damaseb, Judge Smuts also expressed concern that the cession agreements through which Maletzky became the plaintiff in the case may have been a simulated transaction, a circumvention of a section of the Legal Practitioners Act, and against public policy.

"It appears to me to be in fraudem legis (in fraud of the law) for a person to induce a cession and thus create in his favour a right of action in order to circumvent the provisions of the Act," Judge Smuts quoted the judge president's earlier judgement on the same issue. "Fraud unravels everything and the court would in such circumstances be entitled to go behind the ruse of a cession and expose its true character."

Judge Smuts also ordered Maletzky to present argument to the court on February 13 to show why his claim against Hope Village should not be dismissed and the matter should not be referred to the inspector general and the prosecutor general to investigate whether the Legal Practitioners Act had been contravened.

He further directed representatives of the three close corporations to be present in court on February 13 and to bring with them documentation relating to their purported cession of their claims against Hope Village to Maletzky.

As the matter is now pending before court he would not want to comment on it at this stage, Maletzky said yesterday. He would be arguing his case come February 13, he added.

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