Garab v Legal Practitioners Disciplinary committee (CA 65 of 2000) [2001] NAHC 41 (3 December 2001)

IMMANUEL GARAB V THE LEGAL PRATITIONERS' DISCIPLINARY COMMITTEE C A SE NO. CA 6 5 / 2 0 00 2 0 0 1 / 1 2 / 03 Maritz, J. et Manyarara, A J. CIVIL PROCEDURE against conduct decision to d i s m i ss application of unprofessional of Disciplinary Appeal to hear Committee complaint by practitioner - right to appeal under s.35(3) - intended not apparent whether Legislature in ordinary or wider s e n se of the "appeal" that appeal word m u st be brought on notice the DC - interests of DC and practitioner concerned in outcome of the appeal. - minimum requirement to to set - Declarator aside Application proceedings in magistrate's court leading to the conviction of the applicant - parties that should be joined to s u ch 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 appeal struck. CASE NO. CA 6 5 / 2 0 00 IN T HE HIGH C O U RT OF NAMIBIA In the matter between: IMMANUEL GARAB A P P E L L A N T/ APPLICANT and T HE LEGAL PRACTITIONERS' DISCIPLINARY COMMITTEE R E S P O N D E NT CORAM: MARITZ, J. et MANYARARA, A J. Heard on: 2 0 0 1 . 1 2 . 03 Delivered on: 2 0 0 1 . 1 2 . 03 (Extempore) J U D G M E NT MARITZ, J .: The matter before us purports to be an appeal a g a i n st the decision of the Legal Practitioners' Disciplinary Committee not to take disciplinary action a g a i n st 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) w as subjected to during March a nd 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 s u ch 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, s u ch an application does not disclose a prima facie c a se against the legal practitioner concerned, it may under subsection (2) summarily d i s m i ss 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 d i s m i ss 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 s e n se of the word is contemplated (compare: Baxter, Administrative Law, p. 2 5 6 - 2 6 1 ), it m u st at least be brought on notice to the Disciplinary Committee. A duly served notice of s u ch appeal, setting forth whether the appeal is directed a g a i n st 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 s u ch an appellant. In casu, the appellant did not comply with even the m o st b a s ic requirements: There is no notice of an appeal (in any s e n se of the word) before us - that it is intended a p p e a rs only from an "Introductory Note". Neither the respondent not the legal practitioner concerned h as 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 r e a s o n s, 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 p a p e rs as such) is represented in court today, Mr Cohrssen informed the Court that his a p p e a r a n ce is simply a precautionary m e a s u re taken to safeguard the respondent's interests in the event of the appeal proceeding. Much the s a me 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 h as not been served on any person. No one h as been cited as a party to the application a nd no opportunity h as been afforded to anyone with a direct a nd substantial interest in the relief prayed for to oppose the application. The record of the criminal proceedings that the applicant is seeking to set a s i de h as 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 s u c h, 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 4 70 (N) at 475A-B, "once it is shown that a party 'is a necessary party in the s e n se that he is directly and substantially interested in the i s s u es raised in the proceedings before the Court a nd that his rights may be affected by the j u d g m e nt of the Court' the Court will not deal with those i s s u es without s u ch a joinder being effected, and no question of discretion nor of convenience arises." We agree. The "appeal" and "application", unprocedural a nd fraught with defects as they are, have also been set down more that a year ago before other J u d g es of this Court. The Legal Practitioner who the appellant/applicant engaged on that occasion h as since withdrawn and the s a me defects on the papers before the Court on that occasion are still apparent at this hearing. Mr Cohrssen, who w as present at the previous hearing, informs us that he expressly raised some of the shortcomings on that occasion. It is apparent that nothing h as been done about them. Without rectification of the procedural shortcomings, citation of the n e c e s s a ry parties a nd 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 a s s i s t a n ce in that regard - as h as apparently been granted by the Legal Aid Directorate of the Ministry Of J u s t i c e. Given the number of affidavits and other documents annexed, the appellant/applicant's failure to remedy the defects and o m i s s i o ns 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 a nd 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 u n l e ss he h as first applied for a nd 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, u n l e ss he h as first applied for a nd obtained leave of the Court to do s o. CwARITZ, J . V I agree. MANYARARA, A . J. ON BEHALF OF THE APPELLANT/APPLICANT: IN PERSON ON BEHALF OF THE RESPONDENT: ADV R COHRSSEN Instructed by: Secretary Legal Practitioners Disciplinatry Committee