IMMANUEL GARAB V THE LEGAL
PRATITIONERS' DISCIPLINARY COMMITTEE
CASE NO. CA 65/2000 2001/12/03
Maritz, J. et
Appeal against decision of
Disciplinary Committee to dismiss application to hear complaint of
unprofessional conduct by practitioner - right to appeal under
s.35(3) -not apparent whether Legislature intended "appeal"
in ordinary or wider sense of the word - minimum requirement that
appeal must be brought on notice to the DC -interests of DC and
practitioner concerned in outcome of the appeal.
Application - Declarator to set aside
proceedings in magistrate's court leading to the conviction of the
applicant - parties that should be joined to such proceedings -
failure to comply with other procedures prescribed in the rules and
to attach record.
Non-joinder - failure to join
necessary parties to the proceedings - effect of - application and
NO. CA 65/2000
THE HIGH COURT OF NAMIBIA
In the matter between:
Heard on: 2001.12.03
Delivered on: 2001.12.03
The matter before us purports to be
an appeal against the decision of the Legal Practitioners'
Disciplinary Committee not to take disciplinary action against the
appellant's former legal representative. It also purports to be an
application for a declarator "to nullify the whole court process
under which (the appellant) was subjected to during March and April
1995 and to order a retrial as a matter of urgency".
Complaints against the conduct of
legal practitioners and the hearing thereof are prescribed in section
35 of the Legal Practitioners Act, 1995. Any person "affected by
the conduct of a legal practitioner" may apply to the
Disciplinary Committee to require of such practitioner to answer to
allegations of unprofessional, dishonourable or unworthy conduct and
to hear the application. However, if, in the opinion of the
Disciplinary Committee, such an application does not disclose a prima
against the legal practitioner concerned, it may under subsection (2)
summarily dismiss the application without requiring the legal
practitioner to answer the allegations and without hearing the
application. Subsection (3) affords an applicant, who is aggrieved by
the decision of the Disciplinary Committee to dismiss his or her
application, the right to appeal to this Court against that decision.
The Court may then either confirm the decision or order the
Disciplinary Committee to hear the application and to further deal
with it according to law.
Whilst it is not apparent from the
wording of section 35(3) of the Legal Practitioners Act, 1995,
whether an appeal in the ordinary or in the wider sense of the word
is contemplated (compare: Baxter, Administrative
256-261), it must at least be brought on notice to the Disciplinary
Committee. A duly served notice of such appeal, setting forth whether
the appeal is directed against the whole or only part of Disciplinary
Committee's decision and stating the grounds on which the appellant
is seeking the appeal, is the very least that is expected from such
appellant did not comply with even the most basic requirements: There
is no notice of an appeal (in any sense of the word) before us - that
it is intended appears only from an "Introductory Note".
Neither the respondent not the legal practitioner concerned has been
cited as parties to the proceedings. They have not been served with
any of the documents currently before the Court. They have not been
called upon or afforded an opportunity to furnish reasons, to deal
with the grounds on which the appellant is seeking to appeal the
disciplinary Committee's decision or to oppose the appeal. Although
the respondent (not cited in the papers as such) is represented in
court today, Mr Cohrssen informed the Court that his appearance is
simply a precautionary measure taken to safeguard the respondent's
interests in the event of the appeal proceeding.
Much the same applies to the
application for a declarator: It is not brought on Notice of Motion
as required by rule 6 of the Rules of Court but rather in the form of
a "request" incorporated in the "Introductory Note"
we have referred to earlier. It has not been served on any person. No
one has been cited as a party to the application and no opportunity
has been afforded to anyone with a direct and substantial interest in
the relief prayed for to oppose the application. The record of the
criminal proceedings that the applicant is seeking to set aside has
not even been incorporated as part of the record.
Given the serious allegations against
the presiding magistrate advanced by the applicant in support of the
application and the relief prayed for, both the presiding magistrate
and the Prosecutor-General have direct and substantial interests in
the outcome of the application. They are therefore necessary parties
to the proceedings and, as such, have a right to be joined and to be
heard before the Court grants any order that may prejudice their
rights and interests. As Milne, J. pointed out in Khumalo
v Wilkins and Another, 1972 (4)
SA 470 (N) at 475A-B, "once it is shown that a party 'is a
necessary party in the sense that he is directly and substantially
interested in the issues raised in the proceedings before the Court
and that his rights may be affected by the judgment of the Court' the
Court will not deal with those issues without such a joinder being
effected, and no question of discretion nor of convenience arises."
The "appeal" and
"application", unprocedural and fraught with defects as
they are, have also been set down more that a year ago before other
Judges of this Court. The Legal Practitioner who the
appellant/applicant engaged on that occasion has since withdrawn and
the same defects on the papers before the Court on that occasion are
still apparent at this hearing. Mr Cohrssen, who was present at the
previous hearing, informs us that he expressly raised some of the
shortcomings on that occasion. It is apparent that nothing has been
done about them. Without rectification of the procedural
shortcomings, citation of the necessary parties and service on them,
the appeal and application cannot move forward. The appellant will be
well-advised to inform himself of the procedural requirements
prescribed by the Rules of Court or to seek legal assistance in that
regard - as has apparently been granted by the Legal Aid Directorate
of the Ministry Of Justice.
Given the number of affidavits and
other documents annexed, the appellant/applicant's failure to remedy
the defects and omissions in the appeal and application since the
previous postponement, the admitted lack of effort on the part of the
appellant/applicant to inform himself of the requirements of the
Rules, the time it takes to peruse the documents in the Court's file
and the time set aside for the hearing of this matter, we are of the
view that the applicant should not be allowed to set this matter down
for hearing on any future date unless he has first applied for and
obtained the leave of the Court to do so.
In the premises the following order
is made: 1. The matter is struck from the roll.
2. The appellant/applicant may not
set the matter down for hearing on any future date, unless he has
first applied for and obtained leave of the Court to do so.
BEHALF OF THE APPELLANT/APPLICANT: IN
BEHALF OF THE RESPONDENT: ADV
Practitioners Disciplinatry Committee