'Silent', 'curt', law society admonished by Namibian high court

31 January 2020 · Carmel Rickard

When the high court of Namibia asked the country’s law society what it thought about a candidate for admission as a lawyer, the judge had a ‘curt reponse’. The court was anxious to hear from the society as the candidate had frankly admitted to having a criminal record. Did this mean he was not a ‘fit and proper’ person for admission? Or did the society have reason to believe he could be admitted after all? Faced with the law society’s lack of response, the judge asked the society of advocates to help the court instead. But, he warned, the ‘silence of the NLS’ is ‘totally out of order and must not be allowed to take root or be repeated.’

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The Law Society of Namibia has been criticised for not responding appropriately when the high court asked for help in relation to a would-be member of the organisation.

Mwala Kenneth Siambango had applied for admission in September 2019. The court said it needed to consider the matter and a month later issued an order that Siambango be admitted.

Now, three months down the line, Judge Thomas Masuku has explained the reasoning behind his initial hesitation and later decision to admit Siambongo.

Criminal offence

The would-be lawyer began the process of applying for admission during 2017. After reading the papers he had filed in the matter, the court ‘had misgivings’ about whether admission should be granted. This was because the papers disclosed that Siambongo had been previously convicted of a criminal offence.

Judge Masuku asked the law society to make submissions that would help the court reach a proper decision in the matter. Obviously, there was a question mark over Siambongo’s integrity, and the court wanted the law society to give its views and explain whether or not it supported his enrolment.

No reasons

But what did the society do in response? It ‘merely filed a letter stating that it had considered the application and had no qualms with the admission and enrolment of the applicant’. No reasons were given for why the society had reached this conclusion or why it had not opposed Siambongo’s application.

Judge Masuku said the court did not expect the law society ‘to blindly agree’ with the court’s ‘hesitation’, but it was critically important that it should give ‘full and comprehensive’ written reasons for the position it adopted, whatever that turned out to be.

‘It is singularly unhelpful for the (law society) to merely record its decision not to oppose … without disclosing the reasons … particularly where the court has pertinently raised concerns.’ The court was entitled to take the society’s views seriously, but could not do so if no reasons were given.

Agenda

The silence of the society put the court ‘in a somewhat invidious position’, in which it might have appeared to outsiders that there was ‘an agenda’ by the court not to admit the applicant, even though the law society had no issue with the application.

‘It is unseemly that proceedings such as these should be allowed to acquire an adversarial flavour in terms of which the court is, wittingly or unwittingly depicted, seen or regarded by the detached observer, as the applicant’s only adversary, hell-bent, as it were on seeing to it that the applicant’s application does not see the light of day.’

The ‘silence of the LSC’ is ‘totally out of order and must not be allowed to take root or be repeated,’ said the judge. And not only should the society provide reasons for its stand in such a case, but it should also be ready to have someone in court, prepared to address the judiciary on the position taken by the law society.

'Curt response'

Faced with the society’s ‘curt response’, the court had to look elsewhere for help. Its ‘natural destination’ was the Society of Advocates, whose members – especially the former president of the society, Adv Andrew Corbett SC and other colleagues – were thanked effusively by the judge ‘for giving the matter the urgent attention and priority it deserved’. They designated one of their members, Thabang Phatela, to help as an amicus, and within a very tight set of deadlines, he read the record and filed useful and comprehensive heads of argument.

‘The court wishes to express its gratitude personally to Phatela for the assistance rendered so dutifully, as expected by the court of its officers.’

Armed with the views of Phatela and the Society of Advocates, the judge was able to consider - and then reconsider - his reservations about enrolling Siambango. He had met the academic qualifications to be admitted – but was he a ‘fit and proper’ person to become a practitioner? In February 2003 he had been convicted on two counts of motor vehicle theft. On appeal, he was found guilty of a lesser offence. His sentence was set at N$5 000 or two years in jail.

Given that background, was he to be regarded as a ‘fit and proper’ person for admission, when those criteria were so closely linked to integrity, reliability and honesty?

Double jeopardy

The judge said Siambango had already been punished for his misdeeds. ‘To focus entirely on the fact of the past conviction, and close one’s eyes to the present, would amount to a case of double jeopardy.’

Phatela argued that the court should look at the applicant as he is now, and not as he was at the time of the offences. And while the judge agreed, he warned against simply ‘glossing over’ misdeeds. The starting point was that Siambango had made a full and frank disclosure of the past, without been prodded to do so.

Would-be legal practitioners were ‘expected to make a completely clean breast to the court’ about anything at all that might affect their fitness to be admitted. If anything relevant were hidden, the court would be within its right to refuse the admission as it would amount to dishonesty.

On this score, however, Siambango could not be faulted.

Impressed

Further, he had explained that he committed the crime when he was much younger but had since seen the error of his ways. Now, 17 years later, he was able to state that he would not repeat that conduct. Moreover, he had been rehabilitating himself since his convictions, joining the ministry of justice as a legal officer involved in helping represent indigent people. In that capacity he had already been appearing in court.

His superiors were impressed with his qualities, his reformation and his dedication to duty, and fully supported his application. Judge Masuku said it seemed Siambango had ‘successfully exorcised’ himself of his youthful demons.

But having found him a ‘fit and proper person’ to be admitted, the judge aimed a few words directly at the candidate: the ball was now in his court to show that the confidence shown in him was merited.

In 2016, the high court in South Africa had to deal with a very similar situation in the case of Ntsikeleleo Mdyogolo where the law society responded so feebly that the society of advocates was asked for help the court. But the decision by eminent judge Clive Plasket, who now serves on the Supreme Court of Appeal, is particularly interesting because the applicant claimed his crimes were political. This led the court to contrast Mdyogolo’s application with that of other political figures in SA’s history, most importantly, the application for admission by Nelson Mandela. At that stage, he had a political conviction, but Mandela would go on to be sentenced to life imprisonment in another trial, and then, on his release 27 years later, to become the first President of a democratic SA . Read this judgment

Carmel Rickard

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