GOVERNMENTGAZETTE OF THE
REPUBLIC OF NAMIBIA N$7.56 WINDHOEK - 1 September 1995 No. 1141
CONTENTS Page
GOVERNMENT NOTICE
No. 149 Promulgation of Legal Practitioners Act, 1995(Act 15of 1995), of the Par- liament .
Government Notice
OFFICE OF THE PRIME MINISTER
No. 149 1995
PROMULGATION OF ACT OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 15 of 1995: Legal Practitioners Act, 1995.
2 Government Gazette I /5eptember 1995 No. 1141 Act No. 15, 1995 LEGAL PRA~TITIONERS ACT, 1995
ACT
To consolidate and amend the laws relating to the legal profession and legal practitioners; and to provide for matters connected therewith.
(Signed by the President on 23 August 1995)
ARRANGEMENT OF SECTIONS
PRELIMINARY
Section
I. Definitions
PART I ADMISSION AND ENROLMENT
2. Roll of legal practitioners 3. Admission of legal practitioners 4. Persons qualified to be admitted as legal practitioners and application for
admission 5. Academic and _professional qualification 6. Enrolment of persons who were enrolled as attorneys or advocates before
the commencement of this Act 7. Juristic person may conduct a practice 8. Establishment and constitution of Board for Legal Education 9. Alternate members of the Board 10. Vacation of office and filling of casual vacancies 11. General functions of the Board 12. Committees of the Board 13. Meetings of the Board 14. Performance of administrative work of the Board 15. Remuneration and allowances of members of the Board 16. Justice Training Centre
PART II PRIVILEGES, RESTRICTIONS AND OFFENCES IN
CONNECTION WITH PRACTICE
17. Privileges of legal practitioners 18. Right of audience in the Supreme Court 19. Right of audience of candidate legal practitioners 20. Prohibition against practising without fidelity fund certificate 21. Certain offences by unqualified persons 22. Unqualified persons not to prepare certain documents or instruments 23. Prohibition against practising by or in association with legal practitioners
struck off the Roll or suspended from practice
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24. Saving in respect of certain officials acting under, a delegation of the Prosecutor-General
PART III KEEPING OF ACCOUNTS BY LEGAL PRACTITIONERS
25. Legal practitioners' books of accounts and power of Council to inspect 26. Opening of trust banking account 27. Trust account moneys not part of the assets of legal practitioner 28. Control of operation of trust account 29. Rights and duties of banking institutions and building societies with
respect to trust accounts 30. Rights of legal practitioner with respect to money in trust account 31. Offences in relation to trust accounts
PART IV DISCIPLINE AND REMOVAL FROM AND RESTORA nON
TO THE ROLL
32. Removal from Roll or suspension from practice of legal practitioners 33. Unprofessional or dishonourable or unworthy conduct 34. Disciplinary Committee 35. Powers and procedure of Disciplinary Committee with respect to legal
practitioners 36. Powers and procedure of Disciplinary Committee with respect to candi-
date legal practitioners 37. Power of Court 38. Restoration to Roll 39. Rules governing Disciplinary Committee
PART V LAW SOCIETY OF NAMIBIA
40. Establishment of Law Society 41. Objects of Law Society 42. Powers of Law Society 43. Membership of Law Society 44. General meetings of Law Society 45. Council of Law Society ,46. Vacation of office and filling of casual vacancy in Council 47. Duties of Council 48. Powers of Council 49. Committees of Council 50. Meetings of Council 51. Income of Law Society exempt from tax 52. Power of Council to make rules
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PART VI LEGAL PRACTITIONERS' FIDELITY FUND
53. Legal Practitioners' Fidelity Fund 54. Purpose of fund 55. Fund to vest in and to be held in trust by board of control 56. Constitution of board of control 57. Period of office of members of board of control 58. Vacation of office by members of the board of control 59. Chairperson of board of control 60. Meetings of board of control 61. Committees of board of control 62. Validity of resolution signed by all members of board of control 63. Revenue of fund 64. Banking account 65. Audit 66. Insurance contracts for purpose of indemnifying fund and legal practi-
tioners 67. Exemption of certain legal practitioners from requirement to hold a fide-
lity fund certificate 68. Application for and issue of fidelity fund certificate 69. Contributions to fund by legal practitioners 70. Payments from fund 71. Grants from fund for education or research in law and for enhancement
of professional standards of legal practitioners 72. Limitation of liability of fund 73. Procedure for instituting claims against fund 74. Actions against fund 75. Subrogation 76. Exemption of fund from certain provisions of certain laws 77. Indemnification in respect of certain acts 78.. Preservation and disposal of records and documents in possession of
board of control
PART VII GENERAL
79. Senior Counsel 80. Rules of court 81. Regulations 82. Evidence 83. Oath or affirmation upon admission and enrolment 84. Legal Practitioners are officers of the Court 85. Reciprocal arrangements and certificate of authorization to act 10
Namibia 86. Notaries public 87. Practice of conveyancing 88. Transfer of assets, rights, liabilities and obligations to Law Society
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Act No. 15. 1995 LEGAL PRACTITIONERS ACT, 1995
89. Transitional provisions in relation to Council of the Law Society 90. Transitional provisions in relation to Legal Practitioners' Fidelity Fund
Board of Control 91. Transitional provisions in relation to practical legal training and ob-
taining of fidelity fund certificate or exemption by existing advocates 92. Interpretation of certain references in laws 93. Amendment of the High Court Act 94. Repeal of laws and savings 95. Short title and commencement
Schedules
BE IT ENACTED by the Parliament of the Republic of Namibia as follows:-
PRELIMIN ARY
Definitions
1. In this Act, unless the context otherwise requires -
"banking institution" means an institution registered otherwise than pro- visionally as a bank in terms of the Banks Act, 1965 (Act 23 of 1965);
"Board" means the Board for Legal Education established by section 8;
"board of control" means the Legal Practitioners' Fidelity Fund Board of Control referred to in section 55;
"building society" means an institution finally registered as a building society in terms of the Building Societies Act, 1986 (Act 2 of 1986);
"candidate legal practitioner" means a person registered by the Board as undergoing the course of post-graduate study;
"Centre" means the Justice Training Centre referred to in section 16;
"Council" means the Council of the Law Society referred to in section 45;
"course of post-graduate study" means the course for the training of candi- date legal practitioners referred to in section 16;
"Court" means the High Court of Namibia;
"Disciplinary Committee" means the Disciplinary Committee established by section 34;
"enrolled" means enrolled as a legal practitioner on the Roll;
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"fidelity fund certificate" means a certificate issued in terms of section 68;
"fund" means the Legal Practitioners' Fidelity Fund referred to in section 53;
"law centre" means -
(a) a centre for c1inicallegal education in the Faculty of Law at the Uni- versity of Namibia; or
(b) a centre controlled by a non-profit making organisation which pro- vides legal services without charge;
"Law Society" means the Law Society of Namibia established by section 40;
"legal practitioner" means a person who, in terms of this Act, has been admitted and authorised to practise as a legal practitioner or is deemed to have been so admitted and authorised;
"Legal Practitioners' Qualifying Examination" means the examination set and held by the Centre under section 16;
"Minister" means the Minister of Justice;
"practise" means to practise as a legal practitioner, whether for personal gain or in the service of a law centre or the State, and "practice" shall be construed accordingly;
"prescribed" means prescribed by rule made under section 52 or by regulation made under section 81;
"profession" means the profession of legal practitioner;
"professional company" means a company referred to in section 7;
"Registrar" means the Registrar of the High Court;
"Roll" means the register of legal practitioners referred to in section 2;
"Rules of Court" means the rules of the Court made under the High Court Act, 1990 (Act 16 of 1990);
"trust account" means an account comprising -
(a) a trust banking account referred to in section 26(1); and
(b) any trust savings or other interest-bearing account referred to 10 section 26(2) or (3) opened by a legal practitioner.
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Act No. 15, 1995 LEGAL PRACTITIONERS ACT, 1995
PART I ADMISSION AND ENROLMENT
Roll of legal practitioners
2. (1) The Registrar shall keep a register of legal practitioners to be known as the Roll.
(2) The Registrar shall enter in the Roll -
(a) the name of every person admitted and authorised to practise as a legal practitioner in terms of this Act and of every person who in terms of section 6 the Registrar is required to enrol;
(b) particulars of any order of the Court whereby the name of a legal practitioner has been ordered to be struck off the Roll or whereby a legal practitioner has been suspended from practice;
(c) particulars of any decision of the Disciplinary Committee under section 35(8) or of the Court under section 37 with respect to a legal practitioner;
(d) particulars relating to the death of a legal practitioner or any change in the names or other particulars of a legal practitioner, of whom the Registrar is notified.
(3) The Registrar shall upon application made to him or her, and upon payment of the prescribed fee, issue to a legal practitioner a certificate of enrol- ment in the form set out in Schedule 4.
Admission of legal practitioners
3. No person shall be admitted and authorised to practise as a legal prac- titioner or be enrolled as such, except in accordance with the provisions of this Act.
Persons qualified to be admitted as legal practitioners and application for admission
4. (1) Subject to the provisions of this Act, the Court shall admit and authorise to practise as a legal practitioner any person who, upon application made by him or her, satisfies the Court that he or she -
(a) is a fit and proper person to be so admitted and authorised;
(b) is duly qualified in accordance with the provisions of section 5; and
(c) (i) is a Namibian citizen; or
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Act No. 15, 1995 LEGAL PRACTITIONERS ACT, 1995
(ii) has been lawfully admitted to Namibia for permanent residence therein and is ordinarily resident in Namibia; or
(iii) is the holder of an employment permit issued in terms of section 27 of the Immigration Control Act, 1993(Act 7 of 1993)for the purpose of employment in the service of the State.
(2) An application in terms of subsection (I) shall be made to the Court in accordance with the Rules of Court.
Academic and professional qualifications
5. (1) A person shall be duly qualified for the purposes of section 4( 1) if -
(a) he or she holds a degree in law from the University of Namibia, or an equivalent qualification in law from a university or a comparable educational institution situated outside Namibia which has been pre- scribed by the Minister under subsection (4)(a) for the purposes of this paragraph, and he or she has, subject to subsections (2) and (3), been issued with a certificate by the Board stating that he or she -
(i) has satisfactorily undergone practical legal training; and
(ii) has passed the Legal Practitioners' Qualifying Examination;
(b) he or she holds a degree, diploma or certificate in law which immedia- tely before the commencement of this Act was prescribed under the Attorneys Act, 1979 (Act 53 of 1979) as a degree, diploma or certifi- cate which entitled a holder thereof to be admitted as an attorney under that Act, and he or she -
(i) has, after having obtained such degree, diploma or certificate, either before the date of commencement of this Act or, by virtue of the provisions of section 94(2), at any time not later than two years after that date, or such longer period as the Minister by notice in the Gazette may determine, complied with the provi- sions of the Attorneys Act, 1979 in regard to service under articles and passed the practical examinations referred to in section 14(l)(a), (b), (c) and (d) of that Act, or such part or parts thereof from which he or she has not been exempted by virtue of the provisions of section 13 or 13A of that Act; or
(ii) was, immediately before the commencement of this Act, ex- empted by virtue of the provisions of section 13 or 13A of the Attorneys Act, 1979, from service under articles and from passing the practical examinations referred to in subparagraph (i);
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Act No. 15, 1995 LEGAL PRACTITIONERS ACT, 1995
(c) he or she holds a degree or an equivalent qualification in law from a university or a comparable educational institution situated outside Namibia which has been prescribed by the Minister under subsection (4)(b) for the purposes of this paragraph, and he or she-
(i) has undergone a course of one year undergraduate study pro- vided by the Faculty of Law of the University of Namibia and has been certified by the University as having passed all exa- minations and fulfilled all other requirements of such course; and
(ii) has, subject to subsections (2) and (3) been issued with a certifi- cate by the Board stating that he or she -
(aa) has satisfactorily undergone practical legal training; and
(bb) has passed the Legal Practitioners' Qualifying Examina- tion; or
(d) his or her name appears on the list, register or roll of legal practi- tioners, advocates or attorneys, or by whatever name called, kept by a competent authority of any country specified in Schedule 3 to this Act, and he or she -
(i) has, upon his or her application, been exempted by the Board from complying with the requirements of subparagraphs (i) and (ii) of paragraph (a), and, where applicable, has complied with any conditions subject to which such exemption has been granted by the Board; or
(ii) where he or she has not been so exempted, has complied with the provisions of subparagraphs (i) and (ii) of paragraph (a).
(2) The Board shall not for the purposes of paragraph (a)(ii) or (c)(ii)(aa) of subsection (I) or section 6(3) certify that a person has satisfactorily undergone practical legal training, unless the Board, after the consideration of a report by the Director of the Centre -
(a) is satisfied that such person has -
(i) for the full period that he or she attended the course of post- graduate study; or
(ii) if such person has already passed the Legal Practitioners' Qualifying Examination, for a period of not less than 6 months,
continuously been attached to a legal practitioner or legal prac- titioners for the purpose of practical legal training; and
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(b) considers the standard of training received by such person as adequate for the purposes of admission as a legal practitioner.
(3) No person shall be permitted to sit for the Legal Practitioners' Qualifying Examination, unless the Board, after consideration of a report by the Director of the Centre, is satisfied that such person has satisfactorily attended and completed the course of post-graduate study: Provided that a person who holds a degree or equivalent qualification referred to in paragraph (c) of subsection (1), shall not be entitled to commence with and attend the course of post-graduate study, unless he or she has passed all examinations of the course of undergraduate study referred to in subparagraph (i) ofthat para- graph.
(4) The Minister may from time to time, on recommendation of the Board, prescribe by notice in the Gazette -
(a) for the purposes of subsection (l)(a), any degree or equivalent qualifi- cation in law from a university or other comparable educational in- stitution in a foreign country, the legal system of which is based on common law, which shall be accepted as a sufficient qualification for the purposes of that subsection;
(b) for the purposes of subsection (1)(c), any degree or equivalent qualifi- cation in law from a university or other comparable educational insti- tution in a foreign country, the legal system of which is not based on common law, which shall be accepted as a sufficient qualification for the purposes of that subsection.
Enrolment of persons who were enrolled as attorneys or advocates before the commencement of this Act
6. (1) The Registrar shall enter in the Roll the name of every person who immediately before the commencement of this Act -
(a) was an attorney in Namibia under the Attorneys Act, 1979(Act 53 of 1979);
(b) was an advocate in Namibia under the Admission of Advocates Act, 1964 (Act 74 of 1964), who -
(i) was admitted and enrolled as such at any time before the period of 12months preceding the date of commencement of this Act; or
(ii) was admitted and enrolled as such during the said period of 12 months and has complied with the requirements of section 3A(1) of that Act or was exempted therefrom; or
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(c) was undergoing articles in Namibia in terms of the Attorneys Act, 1979,having had his or her name removed from the roll of advocates.
(2) A person who was admitted and enrolled as an advocate in terms of the Admission of Advocates Act, 1964, during the period of 12 months preceding the date of commencement of this Act, but who has not complied with the requirements of section 3A(l) of that Act, shall, ifhe or she, by virtue of the provisions of section 94(3) of this Act, complies with those requirements not later than 12months after the commencement of this Act, or such longer period as the Minister by notice in the Gazette may determine, be enrolled by the Registrar.
(3) A person referred to in subsection (2) who fails to complv with the requirements of section 3A(l) of the Admission of Advocates Act, 1964before the expiration of the period referred to in subsection (2), shall, notwith- standing the fact that he or she was admitted and enrolled as an advocate in terms of that Act, not be enrolled under this Act, unless he or she submits to the Registrar a certificate issued by the Board, subject to subsections (2) and (3) of section 5 of this Act, in which it is stated that he or she -
(a) has satisfactorily undergone practical legal training; and
(b) has passed the Legal Practitioners' Qualifying Examination.
(4) A person enrolled in accordance with the provisions of subsection (1), (2) or (3) shall be deemed to have been admitted and authorised to practise as a legal practitioner under this Act.
(5) The enrolment of a person in accordance with the provisions of sub- section (1) -
(a) shall be subject to the terms of any order of the Court whereby he or she has been suspended from practice as an advocate or attorney before the commencement of this Act;
(b) shall not relieve such person of liability under this Act for unprofes- sional or dishonourable or unworthy conduct on his or her part before the commencement of this Act.
Juristic person may conduct a practice
7. (1) A private company may, notwithstanding anything to the contrary contained in this Act, conduct a practice if -
(a) such company is incorporated and registered as a private company under the Companies Act, 1973(Act 61 of 1973),with a share capital, and its memorandum of association provides that all present and past directors of the company shall be liable jointly and severally with the company for the debts and liabilities of the company contracted during their periods of office;
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(b) only natural persons who are legal practitioners and who are in possession of current fidelity fund certificates are members or share- holders of the company or persons having an interest in the shares of the company;
(c) the name of the company consists solely of the name or names of any of the present or past members of the company or of persons who con- ducted, either on their own account or in partnership, any practice which may reasonably be regarded as a predecessor of the practice of the company: Provided that the words "and associates" or "and company" may be included in the name of the company.
(2) Every shareholder of the company shall be a director of the company, and no person other than a shareholder of the company shall be a director thereof.
(3) If a shareholder of the company or a person having an interest in the shares of the company, dies or ceases to conform to the requirements of sub- section (I )(b), he or she or his or her estate, as the case may be, may as from the date on which he or she dies or ceases to conform, continue to hold the relevant shares or interest in the shares in the company for a period of six months or for such longer period as the Council may approve.
(4) No voting rights shall attach to any share held in terms of subsec- tion (3), and the holder of any such share shall not act as a director of the company or receive, directly or indirectly, any director's fees or remuneration or participate in the income of or profits earned by the company in its practice.
(5) If the articles of association of the company so provide, the company may, without confirmation by a court, upon such conditions as it may deem expedient, purchase any shares held in it, and the authorised share capital of the company shall not be reduced thereby.
(6) Shares purchased in terms of subsection (5) shall be available for allotment in terms of the articles of association of the company.
(7) Notwithstanding anything to the contrary contained in any other law, the articles of association of the company may restrict a member of the company to appoint only another member of the company to attend, speak or vote in his or her stead at any meeting ofthe company.
(8) If the company ceases to conform to any of the requirements of sub- section (1), it shall forthwith cease to practise, and shall, as from the date on which it ceases so to conform, not be recognized in law as a legal practitioner, but subject to subsection (9).
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(9) The provisions of subsection (8) shall not, during the period contem- plated in subsection (3), apply to a company by reason only that a shareholder of the company or a person having an interest in the shares of the company has ceased to be a legal practitioner or to be in possession of a fidelity fund certifi- cate.
(10) Any reference in this Act or in any other law to a legal practitioner or to a partner or partnership in relation to legal practitioners, shall be construed as including a reference to a professional company or to a member of such a company, as the case may be, unless the context otherwise indicates.
Establishment and constitution of Board for Legal Education
8. (1) There is hereby established a board to be known as the Board for Legal Education.
(2) The Board shall consist of -
(a) the Chief Justice, who shall be the chairperson of the Board;
(b) four persons appointed by the Minister, of whom one shall be a person employed in connection with the training of candidate legal practitioners at the Centre;
(c) one legal practitioner in the full-time service of the State appointed by the Attorney-General;
(d) the Prosecutor-General;
(e) the Dean of the Faculty of Law of the University of Namibia; and
(f) three legal practitioners appointed by the Council.
(3) If, in the event of the appointment of a member required to be made by the Council in terms of subsection (2)(f), the Council fails to make such appointment within a period of 21 days after the despatch of a letter to it by the Minister in which it is reminded to make the appointment, the Minister may appoint any legal practitioner as the Minister thinks fit as such a member, and any such appointment by the Minister shall be deemed to have been made by the Council.
(4) Subject to section 10, the members of the Board appointed under paragraphs (b) and (f) of subsection (2) shall hold office for a period of three years, and may be reappointed at the expiration of that period.
Alternate members of the Board
9. (1) The Chief Justice may appoint any judge ofthe Supreme Court or ofthe Court to act as chairperson of the Board during his or her absence from a meeting of the Board.
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(2) The Minister and the Council may, in respect of each member appointed by them to the Board, appoint any other person to be the alternate of such member, but with due regard to the requirements of paragraphs (b) and (f) of section 8(2).
(3) An alternate member appointed under subsection (2) -
(a) shall vacate his or her office if the member in respect of whom he or she has been appointed as alternate vacates his or her office;
(b) may act in the place of the member in respect of whom he or she has been appointed during such member's absence or inability to act as a member.
Vacation of office and filling of casual vacancies
10. (1) The office of a member of the Board appointed under section 8(2)(b) or (f) shall become vacant if -
(a) he or she resigns that office by notice in writing delivered to the Chief Justice;
(b) his or her estate is sequestrated;
(c) he or she is convicted of an offence and sentenced to a term of im- prisonment without the option of a fine;
(d) he or she has been absent from three consecutive meetings of the Board without the leave ofthe Board, which shall not be granted for a period exceeding six months at a time;
(e) in the case of a member appointed by the Council, his or her name is struck off the Roll or he or she is suspended from practice under this Act; or
(f) he or she is removed from office under subsection (2).
(2) A member ofthe Board referred to in subsection (1) may be removed from office by the Minister if the Minister is satisfied that he or she is incapa- citated by physical or mental illness.
(3) Where a member of the Board referred to in subsection (1) ceases to be a member before the expiration of his or her term of office, the vacancy . shall, with due regard to the provisionsof paragraph (b) or (f), as the case may be, of section 8(2), be filled by the appointment of another person for the un- expired portion of the period of office of the member whose office has become vacant.
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General functions of the Board
11. (1) In addition to any other powers and functions conferred upon and assigned to the Board by this Act, the functions of the Board shall be -
(a) to register candidate legal practitioners for training at the Centre and to keep a register in respect of such persons;
(b) to approve the syllabus of the course of post-graduate study;
(c) to lay down guidelines in relation to the nature of the practical train- ing to be provided to candidate legal practitioners at the Centre and by legal practitioners to whom they are attached;
(d) (i) to act as moderator for the Legal Practitioners' Qualifying Exa- mination or to appoint any person or persons to act as such;
(ii) to set and hold from time to time the examination in conveyan- cing for the purposes of section 87;
(e) to issue certificates to -
(i) candidate legal practitioners who have passed the Legal Practi- tioners' Qualifying Examination; and
(ii) legal practitioners who have passed the examination in convey- ancing referred to in paragraph (d)(ii);
(f) to investigate and advise upon any legal education pertaining to the legal profession and any related matters -
(i) which the University of Namibia or any university or compara- ble educational institution outside Namibia may refer to it;
(ii) which the Minister may refer to it; or
(iii) which the Board may consider necessary or expedient;
(g) to collaborate with the Faculty of Law of the University ofN amibia in designing the syllabus and determining any other requirements of the course of undergraduate study referred to in section 5(1)(c)(i); and
(h) to perform such other functions as may be prescribed by the Minister or as it may consider necessary or expedient for the purposes of this Act.
(2) Where, for the purpose of making a recommendation to the Minister in terms of section 5(4), the Board is required to consider how a particular degree or equivalent qualification in law obtained outside Namibia compares
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with a degree in law obtained from the University of Namibia, the Board shall cause to be lodged with it originals of certificates and of official transcripts issued by the competent authority of the relevant university or educational institution.
(3) The certificates and official transcripts lodged with the Board in terms of subsection (2) shall be accepted as sufficient information to enable the Board to make its recommendation to the Minister.
Committees of the Board
12. (1) The Board may establish one or more committees of the Board for the purpose of performing any function ofthe Board which the Board may deem fit to delegate to such a committee.
(2) A committee established under subsection (1) shall consist of such members of the Board, including alternate members, as the Board may appoint to the committee.
(3) The Board may designate any member of a committee to be the chair- person thereof.
(4) The Board shall not be divested of any power which has been delega- ted by it to a committee and may amend or set aside any decision of such a committee.
Meetings of the Board
13. (1) The first meeting of the Board shall be convened by the chair- person of the Board and thereafter meetings shall be held at such times and places as the Board may determine.
(2) The chairperson of the Board may at any time convene a special meeting of the Board.
(3) The majority of the members of the Board shall form a quorum at a meeting of the Board.
(4) The decision of a majority of the members of the Board present ata meeting thereof shall constitute a decision of the Board, and in the event of an equality of votes in regard to any matter, the person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote.
(5) The Board may determine the procedure at its meetings and the meetings of any of its committees.
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Performance of administrative work of the Board
14. (1) The administrative work pertaining to the functions of the Board or a committee of the Board shall be performed by officers in the Ministry of Justice made available for that purpose by the Permanent Secretary: Justice.
(2) The Permanent Secretary: Justice may designate an officer in the Ministry of Justice to act as secretary of the Board or of any committee of the Board.
Remuneration and allowances of members of the Board
15. (1) A member or alternate member of the Board who is not in the full-time employment of the State shall be paid, in respect of any period during which he or she is engaged in the business of the Board and in respect of any travelling when so engaged, such remuneration and other allowances, if any, as the Minister, with the concurrence of the Minister of Finance, may deter- mine.
(2) The remuneration and other allowances referred to in subsection (1) and other expenses pertaining to the performance of the functions of the Board shall be defrayed out of moneys appropriated by the National Assembly for the purpose.
Justice Training Centre
16. (1) There shall, for the purposes of this Act, and subject to section ll(l)(b), be provided at the Justice Training Centre established by the Univer- sity of Namibia, a course of post-graduate study for the training of candidate legal practitioners.
(2) The Centre shall upon the completion of the period of the course of post-graduate study-
(a) conduct the Legal Practitioners' Qualifying Examination under the control of the Board; and
(b) make the examination results available to the Board for its approval.
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PART II PRIVILEGES, RESTRICTIONS AND OFFENCES IN
CONNECTION WITH PRACTICE
Privileges of legal practitioners
17. Subject to the provisions of this Act, a legal practitioner shall have the right to practise the profession in Namibia and shall, without derogating from the generality of that right -
(a) have the right of audience in any court or tribunal in which persons are entitled by law to legal representation;
(b) if he or she holds, or is deemed to hold, the certificate in conveyancing referred to in section 87, have the right to present any document for registration in a deeds registry or for attestation or execution by the registrar of deeds;
(c) if he or she holds, or is deemed to hold, an appointment as notary public under section 86, have the right to perform any act which in terms of any law is required to be performed by a notary public.
Right of audience in the Supreme Court
18. (I) A legal practitioner shall not have the right of audience in the Supreme Court of Namibia unless he or she has practised the profession for a continuous period of, or for periods amounting in all to, not less than one year and he or she holds a certificate to that effect issued by the Council.
(2) The Council shall, upon application made to it by a legal practitioner who satisfies the Council that he or she has practised the profession for a continuous period of, or for periods amounting in all to, not less than one year, issue to such legal practitioner a certificate as contemplated in subsection (1).
Right of audience of candidate legal practitioners
19. A candidate legal practitioner to whom a certificate has been issued by the Centre certifying that such candidate legal practitioner has completed a period of six months training under the course of post-graduate study, shall have the right of audience -
(a) in any Lower Court in any matter; and
(b) in Chambers in any High Court proceedings,
but not after expiration of a period of two years after his or her registration as a candidate legal practitioner by the Board.
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Prohibition against practising without fidelity fund certificate
20. (1) Subject to section 91, a legal practitioner shall not practise on his or her own account or in partnership, unless he or she holds a fidelity fund certificate or is exempted from holding such a certificate by virtue of the provisions of section 67.
(2) A legal practitioner who practises or acts in contravention of subsec- tion (1) shall not be entitled to any fee, reward or disbursement in respect of anything done by him or her while so practising or acting, and shall be guilty of an offence and liable on conviction to a fine not exceeding N$200 000 or to im- prisonment for a period not exceeding 10 years.
Certain offences by unqualified persons
21. (1) A person who is not enrolled as a legal practitioner shall not -
(a) practise, or in any manner hold himself or herself out as or pretend to be a legal practitioner;
(b) make use ofthe title oflegal practitioner, advocate or attorney or any other word, name, title, designation or description implying or tending to induce the belief that he or she is a legal practitioner or is recognised by law as such;
(c) issue out any summons or process or commence, carryon or defend any action, suit or other proceeding in any court of law in the name or on behalf of any other person; or
(d) perform any act which in terms of this Act or any regulation made under section 81(2)(d), he or she is prohibited from performing.
(2) A person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding N$lOO 000 or to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment.
Unqualified persons not to prepare certain documents or instruments
22. (1) Any person, other than a legal practitioner, who for or in expec- tation of any fee, commission, gain or reward, direct or indirect, to himself or herself or to any other person, draws up or prepares or causes to be drawn up or prepared -
(a) a will or other testamentary instrument;
(b) any contract, deed or instrument relating to the creation or dissolu- tion of a partnership or a variation of the terms thereof;
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(c) any contract, deed or instrument for the acquisition, disposal, ex- change or lease of immovable property or a right relating to im- movable property, other than a contract for the lease of immovable property for a period less than five years;
(d) the memorandum or articles of association or prospectus of a company,
shall be guilty of an offence and liable on conviction to a fine not exceeding N$lOO 000 or to imprisonment for a period not exceeding 5 years, or to both such fine and such imprisonment.
(2) The provisions of subsection (1) shall not apply to -
(a) a person in the employment of the State or any body corporate established by any law, drawing up or preparing or causing to be drawn up or prepared any of the documents or instruments concerned in the course of his or her official duty;
(b) a trustee under the laws relating to insolvency or any executor, ad- ministrator or curator, or a liquidator or judicial manager of a company drawing up or preparing a document or instrument in the course of his or her statutory duties and receiving therefor such fees as may be allowed by law; or
(c) a registered accountant and auditor who is a member of the Institute of Chartered Accoutants of Namibia drawing up or preparing or causing to be drawn up or prepared the memorandum or articles of association or prospectus of any company.
(3) The expression "fee, commission, gain or reward" in subsection (1) shall not apply to -
(a) the salary or emoluments of an employee if no fee, gain or reward is sought or obtained by his or her employer from the person on whose behalf the document was drawn or prepared; or
(b) any commission or other remuneration to which any person is or may be entitled by law or otherwise for services rendered in his or her capacity as executor, administrator, trustee, curator, tutor or guar- dian by virtue of his or her appointment in that capacity by a court of law or under the provisions of a will or other testamentary document, or as agent for any person holding such appointment.
(4) No document or instrument referred to in subsection (1) shall be invalid by reason only of the fact that-it has been drawn up or prepared in contravention of the provisions of that subsection.
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Prohibition against practising by or in association with legal practitioners struck off the Roll or suspended from practice
23. (I) No person whose name has been struck off the Roll or who has been suspended from practice shall continue to practise as a legal practitioner directly or indirectly on his or her own account or in partnership or association with another person, nor shall he or she, except with the written consent of the Council, be employed in any capacity connected with the practice of a legal practitioner.
(2) No legal practitioner shall, in connection with his or her practice, without the written consent of the Council, employ or remunerate a person who is disqualified from practising by reason of the fact that his or her name has been struck off the Roll or that he or she is suspended from practising.
(3) The Council may, for the purposes of subsection (1) or (2), grant its consent for such period and subject to such conditions as the Council may think fit.
(4) A person who contravenes subsection (1) or (2) shall be guilty of an offence and liable on conviction to a fine not exceeding N$50 000 or to im- prisonment for a period not exceeding 2 years or to both such fine and such im- prisonment.
Saving in respect of certain officials acting under a delegation of the Prosecu- tor-General
24. Nothing in this Part shall be construed as preventing an official, not being enrolled as a legal practitioner, to whom the Prosecutor-General, acting under Article 88(2)(d) of the Namibian Constitution has delegated the authority to conduct criminal proceedings in any court from so conducting such proceedings.
PART III KEEPING OF ACCOUNTS BY LEGAL PRACTITIONERS
Legal practitioners' books of accounts and power of Council to inspect
25. (1) Every legal practitioner who in terms of this Act is required to hold a fidelity fund certificate shall keep, exclusively in respect of his or her practice, such books of account as may be necessary to show and distinguish in connection with such practice -
(a) moneys received and moneys paid on his or her own account;
(b) moneys received, held or paid by him or her for or on account of a- nother person;
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(c) moneys invested by him or her in a trust savings or other interest- bearing account referred to in section 26(2) or (3) and interest on moneys so invested which is paid over or credited to him or her;
(d) any interest on moneys deposited in his or her trust banking account opened in terms of section 26( 1) and which is paid over or credited to him or her.
(2) In order to ascertain whether the provisions of subsection (1) and section 26 have been or are being complied with, the Council, acting either on its own motion or upon a written complaint lodged with it, may appoint a registered accoutant and auditor who is a member of the Institute of Chartered Accoutants of Namibia to inspect the books of account of a legal practitioner referred to in subsection (1).
(3) An accountant and auditor appointed in terms of subsection (2) shall report to the Council in such a manner as not to disclose confidential informa- tion entrusted to the legal practitioner whose books of account he or she has inspected.
(4) If, upon an inspection in terms of subsection (2), it is found that the legal practitioner has not complied with any of the provisions of subsection (1) or of section 26, the Council may recover from the legal practitioner concerned the costs of the inspection.
(5) For the purposes of subsections (l) and (2) "books of account" includes any record or document kept by or in the custody or under the control of a legal practitioner which relates to -
(a) money invested in a trust savings or other interest-bearing account referred to in section 26(2) or (3) or interest on money so invested;
(b) an estate of a deceased person or an insolvent estate or an estate placed under curatorship, in respect of which such legal practitioner is the executor, trustee or curator or which he or she administers on behalf of the executor, trustee or curator; or
(c) such legal practitioner's practice.
Opening of trust banking account
26. (1) Every legal practitioner who holds or receives moneys for or on behalf of any person shall open and keep a separate trust banking account at a banking institution in which he or she shall deposit all such moneys.
(2) (a) A legal practitioner may invest in a separate trust savings or other interest-bearing account opened by him or her with a banking institu- tion or building society moneys deposited in his or her trust banking account which is not immediately required for any particular purpose.
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(b) A trust savings or other interest-bearing account referred to in para- graph (a) shall contain a reference to this subsection.
(3) A separate trust savings or other interest-bearing account -
(a) which is opened by a legal practitioner for the purpose of investing therein, on the instructions of any person, any moneys deposited in his or her trust banking account by that person; and
(b) over which the legal practitioner exercises exclusive control as trustee, agent or stakeholder or in any other fiduciary capacity,
shall contain a reference to this subsection.
(4) A legal practitioner shall, at the time and in the manner prescribed, pay over to the fund -
(a) the interest, if any, on moneys deposited in such legal practitioner's trust banking account in terms of subsection (1); and
(b) the interest on moneys invested by such legal practitioner in a sepa- rate trust savings or other interest-bearing account in terms of sub- section (2).
(5) The investment by a legal practitioner of any moneys referred to in subsection (1) in a trust savings or other interest-bearing account referred to in subsection (2) or (3) shall not relieve such legal practitioner of any liability in respect of such moneys.
Trust account moneys not part of the assets of legal practitioner
27. (1) Subject to subsection (2), an amount standing to the credit of a legal practitioner's trust account shall not -
(a) be regarded as forming part of the assets of the legal practitioner;
(b) be liable to attachment at the instance of or on behalf of a creditor of that legal practitioner.
(2) Any excess amount remaining on a legal practitioner's trust account after payment of -
(a) all claims of persons whose moneys have, or should have, been deposited or invested in such trust account; and
(b) all claims in respect of interest on moneys so invested, including a claim of the fund in respect of interest due to it in terms of section 26(4),
shall be deemed to form part of the assets of that legal practitioner.
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Control of operation of trust account
28. (1) The Court may, on application made by the Council, and on good cause shown, prohibit any legal practitioner from operating in any way on his or her trust account, and may appoint a curator bonis to control and administer such trust account with such rights, duties and powers in relation thereto as the Court may deem fit.
(2) If a legal practitioner -
(a) dies;
(b) becomes insolvent;
(c) in the case of a professional company, is liquidated or placed under judicial management, whether provisionally or finally;
(d) is struck off the Roll or suspended from practising;
(e) is declared by a court of competent jurisdiction to be incapable of managing his or her own affairs; or
(f) abandons his or her practice or ceases to practise,
the Master ofthe High Court may, upon application made by the Councilor by a person having an interest in the trust account of that legal practitioner, appoint a curator bonis to control and administer that trust account with such of the prescribed rights, duties and powers as the Master may deem fit.
(3) A person aggrieved by a decision of the Master in terms of subsection (2), may, within 30 days after the decision becomes known to him or her, appeal against that decision to the Court, and the Court may confirm or vary the decision or give such other decision as in its opinion the Master ought to have given.
(4) Nothing contained in subsection (1) or (2) shall be construed as pre- venting any legal practitioner who was practising in partnership with a legal practitioner referred to in subsection (2) from continuing to operate on the trust account of the partnership.
Rights and duties of banking institutions and building societies with respect to trust accounts
29. (1) A banking institution or building society at which a legal practi- tioner keeps his or her trust account or a separate account forming part of his or her trust account shall, whenever so directed by the Council, furnish the Council with a signed certificate which indicates the balance of such account at the date or dates designated by the Council.
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(2) A banking institution or building society referred to in subsection (1), shall not -
(a) by reason only of the name or style by which a trust account referred to in that subsection is distinguished, be deemed to have knowledge that the legal practitioner is not entitled to all moneys paid into or credited to such account;
(b) have or obtain any recourse or right, whether by way of set-off, counter-claim, charge or otherwise, against moneys standing to the credit of any such account in respect of a liability of the legal practi- tioner to the banking institution or building society which is not a liability arising out of or in connection with that account.
(3) The provisions of subsection (2)(a) shall not be construed as relieving a banking institution or building society from a liability or obligation to which it would be subject apart from this Act.
Rights of legal practitioner with respect to moneys in trust account
30. The provisions of this Part shall not be construed as taking away or affecting any just claim, lien, counter-claim, right of set-off, or charge of any kind which a legal practitioner has against or on any moneys held or received by him or her on account of another person.
Offences in relation to trust accounts
31. A legal practitioner who contravenes or fails to comply with any of the provisions of section 25( 1) or section 26( 1), (2)(b), (3) or (4) shall be guilty of an offence and liable on conviction to a fine not exceeding N$200 000 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.
PART IV DISCIPLINE AND REMOVAL FROM AND RESTORATION
TO THE ROLL
Removal from Roll or suspension from practice of legal practitioners
32. (1) The Court may, on application made to it in accordance with sub- section (2), order that the name of a legal practitioner be struck off the Roll or that a legal practitioner be suspended from practice -
(a) if he or she no longer conforms to any of the requirements of section 4(l)(c); or
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(b) if he or she is guilty of unprofessional or dishonourable or unworthy conduct of a nature or under circumstances which, in the opinion of the Court, show that he or she is not a fit and proper person to continue to be a legal practitioner.
(2) An application in terms of subsection (I) -
(a) on any of the grounds mentioned in paragraph (a) thereof, shall be made by the Law Society;
(b) on the grounds mentioned in paragraph (b) thereof, shall be made by the Disciplinary Committee.
Unprofessional or dishonourable or unworthy conduct
33. (I) For the purposes of this Act, unprofessional or dishonourable or unworthy conduct on the part of a legal practitioner includes -
(a) contravening section 20(1), 23(2), any of the provisions of Part III or section 67(3);
(b) subject to the provisions of any other law, making over to or sharing or dividing with any person, other than a legal practitioner in or outside Namibia, either by way of partnership, commission or allowance or in any other manner a portion of his or her professional fees;
(c) in any way assisting, allowing or enabling a person who is not a legal practitioner to charge, recover or receive a fee or derive remuneration in respect of or in connection with the preparation or execution of a document or the performance of any professional work which only a legal practitioner is permitted by law to prepare, execute or perform, or in any way conniving at an arrangement, agreement or under- standing whatsoever whereby such fee or remuneration is or shall be charged, recovered or received by such unqualified person;
(d) allowing his or her name together with his or her qualifications as a legal practitioner to appear by way of advertisement or notification or information upon business letterheads, accounts or other documents whatsoever in conjunction with the name of a person who is not a legal practitioner so as to convey, or be capable of conveying, the impression that he or she is associated in his or her legal practice with that person;
(e) subject to the provisions of any other law, entering into a contract or partnership with or of employment by a person who is not a legal practitioner, the direct or indirect result of which is -
(i) to enable that person to enjoy, share or participate in fees reserved solely to a legal practitioner; or
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(ii) to secure for the legal practitioner the benefit of professional business solicited by such person or any other unqualified person;
(f) accepting or agreeing or offering to accept, for any professional work performed or to be performed by him or her for or on behalf of any client, remuneration that is less than the minimum permitted to be charged in accordance with any rate or scale of charges prescribed under this Act or prescribed by or under any other law;
(g) acting or purporting to act for any person in any matter without having been instructed by that person or a person authorised to give instruction on behalf of the person he or she represents or is to repre- sent;
(h) wilfully misleading a court or tribunal, or allowing it to be misled;
(i) directly or indirectly procuring or attempting to procure the employ- ment of himself or herself, or his or her partner or assistant, as a legal practitioner through or by the intervention of another person to whom remuneration for obtaining such employment has been given by him or her, or agreed or promised to be so given;
U) deceiving or misleading a client or allowing the client to be deceived or misled in any respect material to such client.
(2) The provisions of subsection (1) shall not restrict the power of the Court or the Disciplinary Committee to determine that an act or omission not specified in subsection (1) or any other law, constitutes unprofessional or dis- honourable or unworthy conduct on the part of a legal practitioner.
Disciplinary Committee
34. (1) For the purpose of exercising disciplinary control over legal prac- titioners and candidate legal practitioners in accordance with the provisions of this Act, there shall be a committee to be called the Disciplinary Committee, which shall consist of -
(a) four legal practitioners appointed by the Council; and "--
(b) one person appointed by the Minister, who shall act as secretary of the Disciplinary Committee.
(2) If the Council fails or refuses to make an appointment in terms of sub- section (l)(a) within a period of 21 days after the Minister in writing has reminded the Council to make the appointment, the Minister may appoint any legal practitioner whom he or she deems fit as a member of the Disciplinary Committee and any such appointment by the Minister shall be deemed to have been made by the Council.
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(3) A member of the Disciplinary Committee shall hold office for a period of two years from the date of his or her appointment and shall be eligible for reappointment.
(4) During the temporary absence of any member of the Disciplinary Committee or in the event of any such member's inability to act, the Councilor the Minister, as the case may be, shall appoint another person to act as a temporary member in the place of the member who is absent or unable to act, and the provisions of subsection (2) shall apply mutatis mutandis.
(5) The members of the Disci plinary Committee shall elect a chairperson from among their number, and in his or her absence, the remaining members and any temporary members appointed in terms of subsection (4) shall from among their number appoint an acting chairperson.
(6) Three members of the Disciplinary Committee shall form a quorum at a meeting thereof.
(7) A question before the Disciplinary Committee shall be decided by a majority of votes of the members present, and in the event of an equality of votes in regard to any matter, the person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote.
(8) The Disciplinary Committee may determine the procedure at its meetings.
(9) Members of the Disciplinary Committee who are not in the full-time employment of the State shall, in respect of expenses incurred by them in connection with travelling and accommodation when discharging their duties, be paid such allowances as the Minister, with the concurrence of the Minister of Finance, may determine.
(10) The administrative and clerical work ofthe Disciplinary Committee shall be performed by officers in the Ministry of Justice made available by the Permanent Secretary: Justice for the purpose.
(11) The expenses incidental to the functions of the Disciplinary Committee, including the remuneration of members in accordance with sub- section (9), shall be defrayed from moneys appropriated by the National Assembly for that purpose.
Powers and procedure of Disciplinary Committee with respect to legal practitioners
35. (1) An application by the Council, or a person affected by the conduct of a legal practitioner, to require a legal practitioner to answer allegations of alleged unprofessional or dishonourable or unworthy conduct, shall be made to and be heard by the Disciplinary Committee in accordance with the rules made under section 39.
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(2) Where in the opinion of the Disciplinary Committee an application made in terms of subsection (1) does not disclose a prima facie case of un- professional or dishonourable or unworthy conduct on the part of the legal practitioner concerned, the Disciplinary Committee may summarily dismiss such application without requiring the legal practitioner to answer the allega- tions and without hearing the application.
(3) An applicant who is aggrieved by the decision of the Disciplinary Committee under subsection (2)may appeal to the Court against that decision, and the Court may either confirm the decision of the Disciplinary Committee or order the Disciplinary Committee to hear the application and deal with it in accordance with subsection (4).
(4) Where in the opinion of the Disciplinary Committee an application made in terms of subsection (1) discloses aprima facie case of unprofessional or dishonourable or unworthy conduct on the part of a legal practitioner or where an order contemplated in subsection (3) has been made by the Court, the Disciplinary Committee shall-
(a) fix a date and the time and place for the hearing of the application and notify the applicant and the legal practitioner concerned thereof; and
(b) not later than 14 days before the date fixed for the hearing of the application, furnish the legal practitioner concerned with a copy of any affidavit made in support of the application and shall give him or her an opportunity to inspect any document lodged with the Discipli- nary Committee in relation to the application.
(5) The Disciplinary Committee may appoint a legal practitioner to lead evidence at the hearing of the application and to cross-examine the legal practitioner to whom the application relates and witnesses called by him or her and to present argument.
(6) A legal practitioner shall be entitled to legal representation at the hearing of an application by the Disciplinary Committee.
(7) At the conclusion of the hearing of an application the Disciplinary Committee -
(a) if it is satisfied that a case of unprofessional or dishonourable or unworthy conduct has not been made out against the legal practi- tioner, shall dismiss the application;
(b) if it is satisfied that the legal practitioner is guilty of the unprofes- sional or dishonourable or unworthy conduct alleged in the applica- tion or in respects other than those so alleged, shall act in accordance with the provisions of either subsection (8) or (9).
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(8) If the Disciplinary Committee is of the opinion that the unprofes- sional or dishonourable or unworthy conduct of which the legal practitioner is guilty does not justify an application to the Court for an order to strike the legal practitioner's name from the Roll or to suspend him or her from practice, and that the case may adequately be dealth with by itself, it may -
(a) reprimand the practitioner; or
(b) reprimand him or her and impose upon him or her a penalty not exceeding N$IO 000.
(9) If the Disciplinary Committee is of the opinion that the unpro- fessional or dishonourable or unworthy conduct of which the legal prac- titioner is guilty justifies an application to the Court for an order to strike the legal practitioner's name from the Roll or to suspend him or her from practice, it shall proceed to make such application to the Court in terms of section 32.
(10) A legal practitioner upon whom a penalty has been imposed by the Disciplinary Committee under subsection (8)(b) may, within 30 days of the notification to him or her of the decision of the Disciplinary Committee, appeal to the Court against that decision.
(11) The Disciplinary Committee, when acting in accordance with the provisions of subsection (8), may make such order as to the reimbursement of costs incurred by the Disciplinary Committee in connection with the appli- cation, including witness expenses, as it may think fit.
(12) Any penalty imposed under subsection (8)(b) and any costs payable in accordance with subsection (11) shall -
(a) be moneys owing to the State Revenue Fund; and
(b) be recoverable by legal process in the magistrate's court.
Powers and procedure of Disciplinary Committee with respect to candidate legal practitioners
36. (1) In disciplining a candidate legal practitioner, the Disciplinary Committee may -
(a) reprimand the candidate legal practitioner;
(b) reprimand and order the candidate legal practitioner to pay a penalty not exceeding N$l 000; or
(c) withdraw his or her registration as a candidate legal practitioner, either indefinitely or for such period as the Disciplinary Committee may determine.
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(2) The grounds and procedure for disciplinary action by the Disciplina- ry Committee against candidate legal practitioners and the conditions for renewing their registration as candidate legal practitioners, shall be as pre- scribed by the Minister by regulations made under section 81(1).
Power of Court
37. If, in determining an application made to it in terms of section 32, the Court finds that the legal practitioner to whom the application relates is guilty of unprofessional or dishonourable or unworthy conduct, it may, if in the cir- cumstances of the case it thinks fit so to do, and instead of granting an order that the name of the legal practitioner be struck off the Roll or that he or she be suspended from practice -
(a) reprimand the legal practitioner; or
(b) reprimand and order the legal practitioner to pay a penalty not exceeding N$10 000,
and may make any order as to restitution in relation to the case.
Restoration to Roll
38. (1) A person whose name has been struck off the Roll, and a person whose name was removed from the roll of attorneys or the roll of advocates under the Attorneys Act, 1979 (Act 53 of 1979) or the Admission of Advocates Act, 1964 (Act 74 of 1964) before the commencement of this Act, may apply to the Court to have his or her name restored to the Roll.
(2) An application in terms of subsection (1) shall be made in terms of the Rules of Court, and shall be accompanied by recommendations in support thereof of the Council and the Disciplinary Committee.
Rules governing Disciplinary Committee
39. (1) The Minister, upon the recommendation of the Disciplinary Committee, may make rules for regulating the making, hearing and determin- ing of applications to the Disciplinary Committee in terms of section 35( I).
(2) For the purposes of the hearing of an application in terms of section 35 the Disciplinary Committee may -
(a) summon any person, whether of its own accord or at the request ofthe applicant or the legal practitioner to whom the application relates, to appear before it at a time and place specified in the summons and to give evidence in relation to any matter concerning the application or to produce any book, document, record or thing having a bearing on the application.
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(b) through the chairperson, administer an oath to or take an affirmation from, any person appearing before it to give evidence;
(c) put questions to any person appearing before it as a witness or require him or her to produce any book, document, record or thing in his or her possession or custody or under his or her control.
(3) A person who gives evidence before the Disciplinary Committee shall be subject to all the obligations and be entitled to all the privileges, including witness fees, to which a witness is subject or entitled in civil proceedings in the magistrates' courts.
(4) A person who has been summoned to attend before the Disciplinary Committee and who -
(a) refuses or fails without reasonable and sufficient cause to attend and give evidence relevant to the hearing at the time and place stated in the summons;
(b) refuses to take the oath or make an affirmation when required to do so by the chairperson;
(c) refuses or fails without reasonable and sufficient cause to produce any document, record, book or thing which he or she has been required in the summons to produce;
(d) refuses to answer or to answer fully and satisfactorily to the best of his or her knowledge and belief a question lawfully put to him or her,
shall be guilty of an offence and liable on conviction to a fine not exceeding N$5000.
PART V LAW SOCIETY OF NAMIBIA
Establishment of Law Society
40. There is hereby established the Law Society of Namibia which shall by that name be a body corporate with perpetual succession and a common seal, and which shall be capable of suing and being sued and, subject to the provisons of this Act, do and suffer all such acts and things as bodies corporate may lawfully do and suffer.
Objects of Law Society
41. The objects of the Law Society shall be -
(a) to maintain and enhance the standards of conduct and integrity of all members of the legal profession;
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(b) to present the views of the legal profession;
(c) to further the development of law as an instrument of social engin- eering and social justice;
(d) to encourage and promote efficiency in and responsibility in relation to the profession;
(e) to promote the education of lawyers at all stages and levels, with particular emphasis on the broadening of such education;
(f) to make recommendations to interested parties in relation to the training of lawyers;
(g) to define and enforce correct and uniform practice and discipline among members;
(h) to give all necessary assistance to the effective implementation of any legal aid scheme established and governed by or under any law;
(i) to promote social intercourse among members;
(j) to consider and deal with all matters affecting the professional interest of members;
(k) to co-operate with the representative bodies of other professional bodies;
(1) to promote applied research in the development of the law and parti- cipate in the reform of the law by the Government and other agencies;
(m) to seek the enhancement of the Rule of Law and promote the protec- tion of human rights;
(n) to represent, protect and assist members with regard to their condi- tions of practice and related matters.
Powers of Law Society
42. The Law Society may for the purpose of the attainment of its objects-
(a) acquire or hire movable or immovable property;
(b) develop, hypothecate, let, sell or otherwise dispose of movable or immovable property of the Law Society;
(c) make charitable donations and grants-in-aid in support of projects which would benefit the legal profession;
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(d) accept, draw, endorse, issue, make, payor perform any other act in respect of negotiable instruments;
(e) invest the funds of the Law Society which are not immediately required upon such security as may from time to time be determined by the Council;
(f) raise or borrow money, in such manner as the Council may think fit, which is required by the Law Society in connection with its functions;
(g) employ, and determine the remuneration and other conditions of service of the staff of the Law Society;
(h) conclude an agreement with any person for the performance of any particular act or particular work or the rendering of particular services;
(i) enter into contracts in connection with the carrying out of its duties, the performance of its functions or the exercise of its powers;
G) establish or promote or administer or assist in the establishment, promotion or administration of -
(i) insurance schemes;
(ii) medical aid schemes or medical benefit schemes;
(iii) pension funds or provident funds or pension schemes or bene- volent schemes,
to benefit members and former members of the Law Society, employees of members, officials and employees of the Law Society and the dependants of such members, former members, officials and employees;
(k) appear in support of or in opposition to, or abide by the decision of any court, in any proceedings brought in terms of the provisions of this Act and, if permitted by any other law, such other law;
(I) appoint representatives of the Law Society to serve on a board, committee, institution or any other body where or when required do do so by or under any law;
(m) do anything that is necessary for or conducive to the attainment ofthe objects of the Law Society.
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Membership of Law Society
43. (I) Every person enrolled as a legal practitioner in terms of this Act shall be a member of the Law Society.
(2) A member who is suspended from practice in terms of this Act shall not be entitled to the rights and privileges of membership of the Law Society during the period of his or her suspension, and a member whose name is struck off the Roll shall cease to be a member of the Law Society.
General meetings of Law Society
44. (1) Once in each calendar year there shall be held a general meeting of members of the Law Society: Provided that the first annual general meeting of the Law Society shall be held not later than four months after the date of commencement of this Act.
(2) The business to be transacted at the annual general meeting shall include -
(a) the election of members of the Council to serve during the ensuing year;
(b) the appointment of an auditor; and
(c) the consideration of any business of which due notice has been given in accordance with subsection (4).
(3) The Council may at any time, and shall if demanded by at least one- tenth of the members of the Law Society convene a special general meeting of members of the Law Society.
(4) At least 21 days prior to the date fixed for an annual general meeting or a special general meeting written notice of the meeting shall be sent to each member of the Law Society.
(5) A quorum for an annual or a special general meeting of the Law Society shall be one-fifth ofthe members of the Law Society, either present or represented.
Council of Law Society
45. (1) For the proper and effective management of the affairs of the Law Society there shall be an executive committee to be known as the Council, which shall consist of nine members who shall be elected by the Law Society in annual general meeting from among its members in the prescribed manner, and of whom at least four shall be legal practitioners who are in private practice.
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(2) As soon after the election of members of the Council as it is practi- cable to do so, the Council shall elect from among its members a chairperson and a vice-chairperson.
(3) Members of the Council shall hold office until the close of the next annual general meeting at which an election of members of the Council takes place, and shall be eligible for re-election during the annual general meeting, but if for any reason the Law Society fails to elect the members of the Council to succeed the members holding office, the members holding office shall continue in office until their successors are elected into office.
Vacation of office and filling of casual vacancy in Council
46. (I)A member shall vacate his or her office in the Council -
(a) if he or she, without the leave of the chairperson, is absent from Namibia for a continuous period of six months or he or she has failed to attend four consecutive meetings of the Council; or
(b) in such other circumstances as may be prescribed by the Council.
(2) When a member of the Council vacates his or her office before the ex- piration of his or her term of office, the Council may appoint another member of the Law Society to fill the vacancy for the unexpired portion of such term of office.
Duties of Council
47. The Council shall-
(a) with due regard to the provisions of section 44(1), convene general meetings of the Law Society, and determine the date, time and place of such meetings and the business to be transacted at such meetings;
(b) make rules providing for the procedure at general meetings of the Law Society, and the manner in which motions shall be submitted to such meetings;
(c) deposit all moneys of the Law Society received by it with a banking institution or a building society;
(d) keep proper books of account, showing revenue and expenditure and record of assets and liabilities of the Law Society.
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Powers of Council
48. The Council may exercise the powers of the Law Society and, with- out limiting the generality of that power, may -
(a) prescribe the books, records, certificates or other documents to be kept, maintained or issued for the purposes of this Act, the form thereof, the inspection thereof by persons authorised to do so by the Council, and the circumstances and manner in which alterations may be effected thereto;
(b) fix the subscriptions, fees, levies or other charges which shall, subject to subsection (2), be payable to the Law Society by the members of the Law Society;
(c) prescribe the information to be furnished to the secretary of the Law Society by any person who -
(i) commences or discontinues to practise as a legal practitioner;
(ii) takes up employment or ceases to be employed as a legal practi- tioner;
(iii) enters into or withdraws from a partnership with any other legal practitioner;
(iv) while practising as a legal practitioner changes his or her business or residential address;
(d) prescribe the manner of assessment of the fees payable by any person to a legal practitioner in respect of the performance on behalf of such person of non-litigious work and in respect of expenses reasonably incurred by the legal practitioner in connection with the performance of that work and, at the request of such person or legal practitioner or of its own accord, assess such fees in the prescribed manner;
(e) pay an allowance to any person to cover expenses reasonably incurred by him or her in connection with any act performed at the request or under the directions of the Council on behalf of or for the benefit of the Law Society;
(f) subject to such conditions as it may deem fit to impose, permit members of the Law Society to form associations of such members, to be known as regional circles, in respect of such regions as the Council may determine from time to time, and -
(i) determine the duties, functions and powers of such circles;
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(ii) designate in respect of each such circle a place as its headquar- ters; and
(iii) determine the constitution of bodies to be responsible for the management of the affairs of such circles;
(g) prescribe the conditions under which a legal practitioner may practise at a branch office or in association with another legal practitioner or another person who carries on the practice of a lawyer outside Namibia;
(h) prescribe the allowance on fees earned by a legal practitioner for pro- fessional services which such legal practitioner is permitted to make to another legal practitioner or to a person carrying on the practice of a lawyer outside Namibia with whom he or she is not in partnership in respect of any matter on which they were both engaged;
(i) determine the manner in which the Council shall conduct its business;
(j) do anything which is required for the proper and effective carrying out of its duties, the performance of its functions or the exercise of its powers.
Committees of Council
49. (1) The Council may appoint one or more committees to assist it in the exercise of its functions, and may at any time alter the constitution of such a committee and fill a vacancy which occurs in the membership thereof.
(2) The Council may include as a member of a committee any member of the Law Society who is not a member of the Council.
(3) The members of a committee shall elect from among their number the chairperson of the committee.
(4) The Council may delegate and assign to a committee appointed in terms of subsection (1) such of its powers and functions as it may deem fit, but shall not be divested of any power so delegated, and may amend or withdraw a decision of such a committee.
(5) A committee may determine the procedure to be followed at its meetings.
Meetings of Council
50. (I) A meeting of the Council shall be convened and the proceedings thereof shall be regulated in the manner prescribed.
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(2) If the chairperson of the Council is absent from a meeting of the Council, the vice-chairperson shall preside at that meeting and, if both the chairperson and the vice-chairperson are absent, the members present shall appoint one of their number to preside.
(3) The quorum for a meeting of the Council shall be five members.
(4) The decision of the majority of the members ofthe Council present at a meeting shall be a decision of the Council and, in the event of an equality of votes, the person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote.
Income of Law Society exempt from tax
51. The income of the Law Society from whatever source shall be exempt from any tax or levy payable under any law relating to taxes on income.
Power of Council to make rules
52. (1) The Council may, subject to the provisions of subsections (2) and (3), make rules relating to -
(a) matters required or permitted by this Act to be prescribed by the Council;
(b) the registers and other records to be kept for the purposes ofthe Law Society;
(c) the method of the investigation of complaints against legal practi- tioners;
(d) the accounts and records to be kept in relation to the affairs and assets of the Law Society;
(e) the procedure to be followed and the requirements to be satisfied by a member who wishes to obtain the recommendation of the Law Society for his or her appointment as Senior Counsel;
(f) the conditions under which and activities for which persons other than legal practitioners may be employed by legal practitioners to assist them in their practices;
(g) any other matters which the Council considers it necessary or expe- dient to prescribe for carrying out or giving effect to this Act.
(2) Any rule referred to in subsection (1) shall be made with the approval of the Chief Justice.
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(3) The Council shall not submit any draft rule to the Chief Justice for approval unless such draft rule has been approved at a general meeting of the Law Society.
(4) An assessment offees in terms ofarule made under section 48(d) shall be subject to review in all respects as if it were a determination by an officer of the Court charged with the taxation of fees and charges.
(5) Rules made under subsection (1) shall come into operation on the date of publication thereof in the Gazette or on a subsequent date fixed in the notice of publication.
PART VI LEGAL PRACTITIONERS' FIDELITY FUND
Legal Practitioners' Fidelity Fund
53. The Legal Practitioners' Fidelity Fund established by section 2 ofthe Legal Practitioners' Fidelity Fund Act, 1990 (Act 22 of 1990), shall, notwith- standing the repeal of that Act by this Act, continue to exist under the same name.
Purpose of fund
54. Subject to the provisions ofthis Act, the fund shall be applied for the purpose of reimbursing persons who may suffer pecuniary loss as a result of -
(a) theft committed by a legal practitioner or a candidate legal practi- tioner attached to, or a person employed by such a legal practitioner, of any money or other property entrusted by or on behalf of such persons to the legal practitioner or to such a candidate legal practi- tioner or a person employed in the course of the legal practitioner's practice or while acting as executor or administrator in the estate of a deceased person or as a trustee in an insolvent estate or in any other similar capacity; and
(b) theft of money or other property entrusted to an employee referred to in paragraph (cA) of the definition of "estate agent" in section 1of the Estate Agents Act, 1976 (Act 112 of 1976), or a legal practitioner referred to in paragraph (d) of that definition, and which has been committed by any such person under the circumstances, and in the performance of an act, contemplated in those paragraphs, respec- tively.
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Fund to vest in and to be held in trust by board of control
55. (I) The fund shall vest in and be administrated by a board of control to be known as the Legal Practitioners' Fidelity Fund Board of Control.
(2) The fund shall be held in trust by the board of control for the pur- poses mentioned in this Part.
(3) The board of control may under its name sue and be sued.
Constitution of board of control
56. (I) The board of control shall consist of -
(a) the chairperson of the Council; and
(b) three legal practitioners appointed annually by the Council, of whom at least two shall be legal practitioners who are not members of the Council, and at least two are persons who have been engaged in private practice for a period of not less than five years.
(2) The Council may appoint an alternate member from among its number to act in the place of the chairperson of the Council during his or her absence or inability to act as a member of the board of control.
Period of office of members of board of control
57. A member of the board of control appointed under section 56(1)(b) shall hold office until his or her successor has been appointed and, unless another is appointed in his or her place in any year, he or she shall be deemed to have been reappointed.
Vacation of office by members of the board of control
58. (I) A member of the board of control shall vacate his or her office if he or she-
(a) ceases to be a legal practitioner or is suspended from so practising;
(b) resigns and his or her resignation is accepted by the Council; or
(c) is removed from office under subsection (2).
(2) A member of the board of control referred to in subsection (1) may be removed from office by the Council if he or she -
(a) is incapacitated by physical or mental illness;
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(b) is convicted of an offence which, in the opinion of the Council, debars him or her from serving as a member of the board of control.
Chairperson of board of control
59. (I) The board of control shall annually elect one of their number, other than the chairperson of the Council, to be the chairperson of the board of control.
(2) If the chairperson is absent from a meeting of the board of control, the board shall from among its number elect a chairperson for that meeting.
Meetings of board of control
60. (I) The board of control shall meet at such times and at such place as it or its chairperson may determine from time to time.
(2) Three members of the board of control shall constitute a quorum at a meeting thereof.
(3) The decision of the majority of the members of the board of control present at a meeting thereof shall be a decision of the board of control and, in the event of an equality of votes, the person presiding shall have a casting vote in addition to his or her deliberative vote.
Committees of board of control
61. (1) The board of control may appoint one or more committees to assist in the exercise of its functions, and may at any time alter the constitution of such a committee and fill a vacancy which occurs in the membership thereof.
(2) The members of a committee appointed in terms of subsection (I) shall from among their number elect the chairperson of the committee.
(3) The board of control may -
(a) delegate and assign to a committee appointed in terms of subsection (I) such of its powers and functions as it may think fit;
(b) instruct such a committee, either generally or in a specific case, to enquire into and to advise the board of control on any matter in relation to the functions of the board of control.
(4) The board of control shall not be divested of any power delegated to a committee thereof and may amend or withdraw a decision of such a committee.
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Validity of resolution signed by all members of board of control
62. A resolution in writing of the board of control signed by all its members shall be as valid as if it had been passed at a meeting of the board.
Revenue of fund
63. The fund shall consist of -
(a) the annual contributions by legal practitioners and interest paid to the fund in terms of this Act;
(b) the revenue obtained from investments of the fund;
(c) money recovered for the benefit of the fund;
(d) money received on behalf of the fund from an insurance company under a contract of indemnity referred to in section 66;
(e) other money lawfully paid into the fund.
Banking account
64. (1) Money in the fund shall be paid into an account at a banking in- stitution or building society to the credit of an account to be known as the Legal Practitioners' Fidelity Fund Account.
(2) The board of control may from time to time invest moneys of the fund which are not immediately required for the purposes mentioned in this Act.
Audit
65. (1) The accounts of the fund shall be audited by a registered accountant and auditor appointed by the board of control.
(2) A person appointed under subsection (1) shall, at least once in every year and not later than a date to be determined by the board of control, draw up a balance sheet and profit and loss account of the fund and forthwith submit certified copies thereof and of his or her report thereon to the chair- person of the board of control and to the Council.
Insurance contracts for purpose of indemnifying fund and legal practitioners
66. (1) The board of control may enter into a contract with a person or company carrying on fidelity insurance business whereby the fund will be in- demnified to the extent and in the manner provided in such contract against liability to pay claims under this Act.
(2) A contract referred to in subsection (1) shall be entered into in respect of legal practitioners generally.
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(3) A claimant against the board of control shall not have -
(a) a right of action against a person or company with whom a contract of indemnity has been entered into in terms of this section, in respect of such contract; or
(b) a right to any money paid by the insurer in accordance with such contract.
(4) Any money paid by an insurer in accordance with a contract of indemnity shall be paid into the fund for appropriation by the board of control.
Exemption of certain legal practitioners from requirement to hold a fidelity fund certificate
67. (1) A legal practitioner who is in the full-time employment of the State or of a law centre or who is not practising on his or her own account or in partnership or who is exempted under subsection (2) shall, subject to subsec- tion (3), not be required to obtain and hold a fidelity fund certificate.
(2) Upon application made to it by a legal practitioner practising or intending to practise as a legal practitioner for his or her own account or in partnership, the Council may exempt such practitioner from holding a fidelity fund certificate if -
(a) in the case of a legal practitioner practising or intending to practise on his or her own account, such legal practitioner furnishes the Council with a written declaration stating that he or she will not in the conduct of his or her practice accept or receive or hold moneys for or on account of another person; or
(b) in the case of a legal practitioner practising or intending to practise in partnership, such legal practitioner furnishes the Council with a written declaration signed by every person who is or will be a member of such partnership stating that neither such partnership nor any member thereof will in the conduct of the practice of the partnership accept or receive or hold moneys for or on account of another person.
(3) Any legal practitioner who has been exempted under subsection (2) from holding a fidelity fund certificate and who in the conduct of his or her practice accepts or receives or holds any money for or on account of another person, without first 0btaining a fidelity fund certificate in accordance with the provisions of section 68 shall not be entitled to any fee, reward or disbursement in respect of anything done by him or her while so practising and shall be guilty of an offence and liable on conviction to a fine not exceeding N$200 000 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.
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Application for and issue of fidelity fund certificate
68. (1) A legal practitioner practising or intending to practise on his or her own account or in partnership shall, unless he or she is exempted in terms of section 67, apply in the prescribed form to the secretary of the Law Society for a fidelity fund certificate.
(2) An application in terms of subsection (1) shall be accompanied by the contribution, if any, payable in terms of section 69.
(3) Upon receipt of the application in terms of subsection (1), the secre- tary of the Law Society shall forthwith issue to the applicant a fidelity fund certificate in the prescribed form if he or she is satisfied that the applicant -
(a) has discharged all his or her liabilities to the Law Society in respect of his or her contribution; and
(b) has complied with any other lawful requirement of the Law Society.
(4) A fidelity fund certificate shall be valid until 31 December of the year in respect of which it was issued.
(5) A document purporting to be a fidelity fund certificate which has been issued contrary to the provisions of this Act shall be null and void and shall on demand be returned to the Law Society.
Contributions to fund by legal practitioners
69. (1) Subject to the provisions of this section, every legal practitioner practising on his or her own account or in partnership shall annually when he or she applies for a fidelity fund certificate pay the amount as may be fixed by the board of control from time to time.
(2) Where a legal practitioner commences to practise as such on or after 1 July in any year, he or she shall in respect ofthat year pay half ofthe amount of the contribution which is payable for that year in terms of subsection (1).
(3) When the board of control, or the Law Society on behalf of the board of control, gives notice in writing to legal practitioners that the nett value of the fund exceeds N$3 000 000 all legal practitioners who are liable to pay the annual contribution referred to in subsection (1) shall, as from a date deter- mined by the board of control and specified in the notice, no longer be required to pay that contribution, except if the liability to pay that contribution is recommenced by virtue of a notice given in terms of subsection (4).
(4) Where, at any time after a notice in terms of subsection (3) has been given, the board of control, or the Law Society on behalf of the board of control, gives notice in writing to legal practitioners that the nett value of the fund is less than N$3 000 000, every legal practitioner referred to in subsection
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(1) shall, as from a date determined by the board of control and specified in the notice, again be liable to pay the annual contribution referred to in subsection (1), whereupon the notice previously given in terms of subsection (3) shall lapse.
(5) For the purposes of subsections (3) and (4), "nett value of the fund" means all moneys standing to the credit of the fund in terms of section 63, less the sum of all unpaid claims and other liabilities outstanding against the fund.
(6) Where the liability in respect of the annual contribution imposed by subsection (1) is suspended by virtue ofthe provisions of subsection (3), a legal practitioner who applies for the first time for a fidelity fund certificate while such a suspension is in force shall pay a single contribution in the amount as determined by the board of control, and be subject to any subsequent re- commencement of that liability notified in terms of subsection (4).
(7) Notwithstanding the provisions of subsection (3), the board of control may require a legal practitioner in respect of whom the fund has been applied as a result of any of the circumstances referred to in section 54, to pay the annual contribution referred to in subsection (1) to the fund for such period as the board of control may determine.
(8) A legal practitioner who is not in possession of a fidelity fund certifi- cate and who intends to commence to practise on his or her own account or in partnership, shall, before commencing so to practise, give notice of such in- tention to the secretary of the Law Society, and he or she shall thereupon become liable to pay to the fund the amount of the contribution referred to in subsection (1) or (6), as the case may be, unless he or she is exempted in terms of section 67 from holding a fidelity fund certificate.
(9) All contributions payable under this section shall be paid to the Law Society, and the Law Society shall remit such contributions to the board of control within 30 days of receipt thereof.
Payments from fund
70. (1) Subject to the provisions of this Act, the fund shall be applied for the following purposes, namely -
(a) all claims, including costs, payable in terms of this Act, and interest as provided in subsection (2);
(b) in the discretion of the board of control, a contribution towards expenses incurred by a claimant in establishing his or her claim;
(c) legal expenses incurred in defending a claim made against the fund or otherwise incurred in relation to the fund;
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(d) premiums payable in respect of contracts of insurance entered into by the board of control under section 66;
(e) expenses incurred in the administration of the fund and investigations by the board of control or its committees in respect of matters which concern the fund, including allowances to members of the board of control in respect of their services or their reasonable travelling and accommodation expenses incurred in connection with the affairs of the fund;
(f) in the discretion of the board of control, the bank charges or a portion thereof paid by a legal practitioner in connection with the keeping of a trust account;
(g) in the discretion of the board of control, the premium or a portion thereof payable in respect of a professional indemnity group in- surance policy taken out in favour of legal practitioners;
(h) in the discretion of the board of control, the costs or a portion thereof incurred by a legal practitioner in connection with the obtaining of a fidelity fund certificate;
(i) in the discretion of the board of control, the defraying of the whole or a portion of the cost and expenses incurred by the Law Society for the purposes of or in connection with steps taken by it in terms of section 25 or 32;
(j) loans and interest thereon;
(k) other moneys which are payable or may be paid from the fund in accordance with this Act.
(2) The board of control may in its discretion pay an amount out of the fund as interest on the amount of any judgement obtained or a claim admitted against the fund, but the rate of interest shall not exceed the prevailing rate of interest prescribed under section 1(2) of the Prescribed Rate of Interest Act, 1975 (Act 55 of 1975).
(
