18 February 2013

Namibia: Referee to Investigate Litigant Maletzky

HIGH Court Judge President Petrus Damaseb plans to appoint a referee to investigate whether an active litigant in the High Court, August Maletzky, has been representing clients in contravention of the Legal Practitioners Act.

Maletzky, who is not an admitted legal practitioner, has been required by both Judge President Damaseb and Judge Dave Smuts to show why his appearance in two cases in the High Court should not be referred to the inspector general of the Namibian Police and the prosecutor general for possible investigation and prosecution.

Two judgements calling on Maletzky to explain his appearance as a party in two cases were handed down four weeks and three weeks ago respectively.

Appearing before Judge President Damaseb in the High Court in Windhoek last week, Maletzky told the court that he has filed notices of his intention to have both the judge president and Judge Smuts impeached. He intends to pursue the impeachment of the two judges both locally and internationally, Maletzky announced.

Namibia's judges will not under any circumstances be bullied, blackmailed or intimidated by anybody when they do their duty under the Constitution, Judge President Damaseb advised Maletzky.

Judges' duties are to uphold the law of the land, which includes the Constitution and laws made under the Constitution, such as the Legal Practitioners Act, he said.

He told Maletzky that in the wake of the two judgements in which Maletzky was called to give account to the court, individuals have provided information to the court which gives support to the suspicion that Maletzky is rendering legal services for payment, in breach of the law.

To avoid the court becoming involved in an investigation, he intends to appoint a referee in terms of the High Court Act to prepare a special dossier to establish the true facts from the material in possession of the court, the judge president said.

Once the referee's report has been completed, it would be placed before another judge of the High Court to determine if Maletzky has been using cessions, through which plaintiffs which had claims against defendants had ceded their rights of action to him, as a way of rendering legal services for reward to the public, the judge president said.

When the case returns to court, possibly during this week, he wants to make an order for the appointment of the referee, he said.

In both cases in which Maletzky was ordered to explain the basis of his appearance as a party in the matter, Maletzky is a plaintiff 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 second judgement, delivered on January 25, Judge Smuts also expressed concern that the cession agreements through which Maletzky became the plaintiff in that case may have been a simulated transaction, a circumvention of a section of the Legal Practitioners Act, and against public policy.

After the first judgement had been delivered Maletzky was quoted as having told a reporter of The Namibian that he was "taken aback by, in my view, with the greatest respect, an embarrassing judgement".

The judge president questioned Maletzky last week about those comments he was reported to have made.

Maletzky denied having said what was attributed to him, and claimed he had only said he would not comment because the case was pending in court.

Journalist Denver Kisting, who wrote the article in which Maletzky's remarks were recorded, commented on Friday: "I maintain that what I wrote is what Mr Maletzky said to me. I take serious exception to the allegation that I misquoted him."

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