LSN highlights flawed disciplinary framework
"The legal profession is in a crisis. The disciplinary committee is unable to effectively handle complaints and disciplinary proceedings against legal practitioners," says Neliswa Tjahikika, director of the Law Society of Namibia (LSN), in a statement filed with the High Court in Windhoek in a case against a legal practitioner. She claims that the LSN can no longer rely on the disciplinary process currently in place.
"The disciplinary process outlined in the law is so slow that it is not functional. This poses a significant risk to the public and clients of legal practitioners and has a negative impact on the public's perception of the legal profession and system."
The current disciplinary process requires a complaint to be lodged with the LSN against a legal practitioner. Subsequently, the committee will investigate the complaint for ethical issues, and if the complaint has merit, it will be referred to the disciplinary committee for the respective legal practitioner to respond to the charges.
Lack of support
If the committee finds that there has been any dishonourable or unprofessional conduct, it will file a court application to have the name of the respective legal practitioner struck off the roll.
The LSN received 38 complaints in 2021, of which 12 were referred to the disciplinary committee. In 2022, 70 complaints were received, of which 32 were referred to the committee.
"The LSN has requested a more detailed breakdown of pending cases. We are aware that there are a significant number of pending cases with no prospect of resolution," Tjahikika said. Tjahikika believes that the disciplinary committee's inability can largely be attributed to systemic deficiencies as well as the conduct of the legal practitioners facing disciplinary action.
"The disciplinary committee has never received the administrative and clerical support necessary to function effectively."
Tjahikika argues that the only solution is to take disciplinary issues regarding the misconduct of legal practitioners directly to the High Court.
"Given the failure of the disciplinary process and the consideration of the obligation to act in the promotion of the public interest as well as the protection of the public, the only meaningful step is to utilise the court's inherent supervisory jurisdiction over legal practitioners. The alternative would be to stand still and do nothing while the disciplinary process continues unabated."
Legal proceedings underway
The court case in which Tjahikika makes this appeal to the High Court to intervene is a case brought by the LSN against Haroldt Kamatuka. The court is being asked to strike Kamatuka's name from the roll based on alleged dishonourable conduct. Kamatuka was admitted as a legal practitioner by the High Court in June 2022. However, after the LSN received a complaint against him and began an investigation, it was revealed that he is a convicted criminal who was sentenced to five years in prison in March 1999.
"We [LSN] were not aware of any findings of guilt at the time of his application for admission and therefore issued a letter regarding his admission indicating that there were no objections to his application," Tjahikika said.
He was reportedly found guilty at the time on 15 charges of fraud, two charges of theft and one charge of bribery. He allegedly did not disclose this information to the court before being admitted. "This concealment is sufficient to strike his name from the roll."
Kamatuka is also accused of having received N$3.9 million from a client (the plaintiff in the current case) for safekeeping and to purchase a property. He allegedly did not fully repay the amount to the plaintiff. Kamatuka's defence is that the LSN does not have the power to bring an application to strike his name from the roll and that this power is only reserved for the disciplinary committee. Parties appeared before Judge Claudia Claasen last week and indicated in a report that they would like to have the case heard before the end of the year for swift resolution.
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"The disciplinary process outlined in the law is so slow that it is not functional. This poses a significant risk to the public and clients of legal practitioners and has a negative impact on the public's perception of the legal profession and system."
The current disciplinary process requires a complaint to be lodged with the LSN against a legal practitioner. Subsequently, the committee will investigate the complaint for ethical issues, and if the complaint has merit, it will be referred to the disciplinary committee for the respective legal practitioner to respond to the charges.
Lack of support
If the committee finds that there has been any dishonourable or unprofessional conduct, it will file a court application to have the name of the respective legal practitioner struck off the roll.
The LSN received 38 complaints in 2021, of which 12 were referred to the disciplinary committee. In 2022, 70 complaints were received, of which 32 were referred to the committee.
"The LSN has requested a more detailed breakdown of pending cases. We are aware that there are a significant number of pending cases with no prospect of resolution," Tjahikika said. Tjahikika believes that the disciplinary committee's inability can largely be attributed to systemic deficiencies as well as the conduct of the legal practitioners facing disciplinary action.
"The disciplinary committee has never received the administrative and clerical support necessary to function effectively."
Tjahikika argues that the only solution is to take disciplinary issues regarding the misconduct of legal practitioners directly to the High Court.
"Given the failure of the disciplinary process and the consideration of the obligation to act in the promotion of the public interest as well as the protection of the public, the only meaningful step is to utilise the court's inherent supervisory jurisdiction over legal practitioners. The alternative would be to stand still and do nothing while the disciplinary process continues unabated."
Legal proceedings underway
The court case in which Tjahikika makes this appeal to the High Court to intervene is a case brought by the LSN against Haroldt Kamatuka. The court is being asked to strike Kamatuka's name from the roll based on alleged dishonourable conduct. Kamatuka was admitted as a legal practitioner by the High Court in June 2022. However, after the LSN received a complaint against him and began an investigation, it was revealed that he is a convicted criminal who was sentenced to five years in prison in March 1999.
"We [LSN] were not aware of any findings of guilt at the time of his application for admission and therefore issued a letter regarding his admission indicating that there were no objections to his application," Tjahikika said.
He was reportedly found guilty at the time on 15 charges of fraud, two charges of theft and one charge of bribery. He allegedly did not disclose this information to the court before being admitted. "This concealment is sufficient to strike his name from the roll."
Kamatuka is also accused of having received N$3.9 million from a client (the plaintiff in the current case) for safekeeping and to purchase a property. He allegedly did not fully repay the amount to the plaintiff. Kamatuka's defence is that the LSN does not have the power to bring an application to strike his name from the roll and that this power is only reserved for the disciplinary committee. Parties appeared before Judge Claudia Claasen last week and indicated in a report that they would like to have the case heard before the end of the year for swift resolution.
– [email protected]
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