- February 6, 2023
- |Law Everyday
The practice of law in the courts of law is an onerous and risky business. By representing people in courts of law or similar forums, a legal practitioner takes responsibility for their rights. What that responsibility entail has been crystalized to mean being competent, knowledgeable, and/or skilled in the subject matter, and being professional and ethical in conduct. As an introduction, Sibeya J in Namibian Electrical Services CC v PD Theron & Associates (HC-MD-CIV-ACT-CON-2018/04238) [2022] NAHCMD 486 (16 September 2022) warned that:
‘…I deem it imperative to sound a word of caution to newly admitted legal practitioners practicing as such and that is: once a legal practitioner undertakes the representation of a client, it becomes his or her obligation to exercise proper care to safeguard the client’s interest…(paragraph 1).
With reference to Almer’s Precedents of Pleadings, 8th Edition p.242 by LCT Harms paragraph 75, that:
‘The relationship between an attorney and client is based on a contract of mandate, and such contract imposes fiduciary obligations on an attorney. An attorney owes a duty of care towards the client, the court, and third parties ….’’ (Paragraph 78)
The warning above is very serious and has serious consequences. It comes at a time when it appears that the courts have had enough of condonation applications and the like, emanating from litigants (clients) and/or their legal practitioners not complying with the rules of court. Thus, in Swartz v Namibia Water Corporation Limited (HC-MD-CIV-ACT-CON-2022-02419) [2022] NAHCMD 547 (12 October 2022), the court observed that:
‘…there has of late been far too many condonation applications doing their round in the court; condonation applications brought to condone the incessant failure to obey court orders by parties. This shameful vogue has the effect of setting at naught court orders and that does not conduce to due administration of justice and the promotion of rule of law.’
One thing is certain, and that is there will always be non-compliance with the rules of court, and for such, there will always be grave consequences, which include, but not limited to, striking matters from the roll, granting necessary amendments or other relief, setting aside proceedings, steps or documents, to ensure the just resolution of the real issues in dispute. This will however not be done at the expense of compliance with the rules of the court. The non-compliance can be a result of the litigant’s and/or his or her legal practitioner’s conduct – they are in a relationship based on a contract of mandate. Given that relationship, the question is who bears the brunt of those consequences? This is what we wish to address today. This topic is relevant because generally and in the ultimate end, it is the litigant whose case is thrown away and their rights not determined, as the case may be. It is always the client’s case, right?
The Supreme Court has stated in Katjaimo v Katjaimo & others 2015 (2) NR 340 (SC) that there is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence, or the inefficiency of the explanation tendered “and that if a litigant “relies upon the ineptitude or remissness of his own attorney he should at least explain that none of it is to be imputed to himself.’ And in Nakambonde v TransNamib Holdings Ltd (SA 41-2020) 2021 NASC (16 November 2021), the Supreme Court stated that:
‘It is accepted that, whilst an appellant should not be prejudiced by his or her attorney’s incompetence, there is a degree beyond which a litigant cannot be excused thereby. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of the failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.’
(Aymac CC & another v Widgerow 2009 (6) SA 433 WLD at 451D and Salojee & another NNO v Minister of Community Development 1962 (2) SA 135 (A) at 141C. See also Leweis v Sampoio 2000 NR 186 (SC) at 193).
The authorities above confirm that the litigant will always suffer the consequences of non-compliance with the rules of the court, but, in appropriate cases, the litigant may escape such consequences. Enter culpable inactivity referred to in Alutumani v Walvis Bay Stevedoring Co (Pty) Ltd (LCA 46-2014) [2022] NALCMD 74 (5 December 2022) that the failure, without any proper explanation (other than confusion because of the number of appearances that the applicants had to attend, and oversight), of the applicants’ instructed counsel to timeously engage in the proper research and drafting of documents to commence with the appeal against the order and Judgment on the merits borders on culpable inactivity. Culpable inactivity or ignorance of the rules by the attorney has in a number of cases been held to be an insufficient ground for the grant of condonation (Aymac CC & another v Widgerow; Kleynhans MS v Chairperson of the Council of the Municipality of Walvis Bay (SA23-2011) [2013] (26June2013); Nakambonde v TransNamib Holdings Ltd (SA 41-2020) 2021 NASC (16 November 2021))).
But what exactly is culpable inactivity? The word culpable refers to blameworthy or deserving censure. Inactivity refers to idleness, inertness, sluggishness, or passiveness. Combined, and in simple terms, culpable inactivity means not doing something you are supposed to do without an acceptable or justifiable explanation. In today’s discussion, it refers to the failure by a legal practitioner to carry out the mandate or instructions of a client without an acceptable or justifiable explanation. Given the seriousness of the responsibility taken up by legal practitioners and the severity of consequences of not honouring same, it is important that legal practitioners acquaint themselves with these authorities. Clients (members of the public) on the other hand must understand that legal practitioners are not expected to know all the rules, but to be diligent (Aymac CC and Another v Widgerow).
The principle established by these cases is that independent of the merits of the appeal, the cumulative effect of elements connected to the attorney’s rule violations may be such that the application for condonation is unworthy of consideration. Additionally, the dicta in these cases unmistakably demonstrate how the courts disapprove of legal practitioners who display blatant contempt for the rules guiding judicial proceedings. For example, in Shikongo v Lee’s Investments (Pty) Ltd (SA 33-2020) [2022] NASC (15 November 2022) the applicant failed to file the appeal record within the time period prescribed and failed to explain what had happened for about nine weeks after the notice of intention of appeal was filed. The applicant only started with the preparation of the appeal record after security for costs had been paid into court, which left the applicant with insufficient time to prepare and file the appeal record. The applicant’s legal practitioner was familiar with the time within which to file the appeal record but failed in his duty as a legal practitioner to apply the rule correctly by miscalculating the last day on which the appeal record had to be filed. No explanation was provided for what prompted the miscalculation. The legal practitioner of the appellant further failed to apply for condonation soon after he had been informed of the appellant’s non-compliance with rules by the registrar. The court held that the explanation proffered was inexplicable, unpersuasive, and amounted to a negligent and unreasonable non-observance of the Rules of the court.
In as much as the courts have stated that a legal practitioner may cause to be researched the rules of court relating to the task to be taken, this should not be the case all the time, especially if doing so will delay the matter. In some cases, hiring counsel or an advocate is not even necessary, as the Supreme Court stated in Standard Bank Namibia Limited v Nekwaya (SA 95-2020) [2022] NASC (1 December 2022, paragraph 36 that:
‘The explanation provided for the non-compliance with the rules of court by the instructing legal practitioner was, in my view, a weak and unpalatable explanation. I say this because a seasoned legal practitioner, like the instructing legal practitioner, could easily establish the true legal position by way of simple research. Instead, she persistently and blindly (figuratively speaking) plodded on with litigation in the court a quo for more than a year, and unnecessarily so. A legal practitioner who acts on behalf of a client is expected to do so with due diligence. This was not done. In my view, a referral to an advocate for a legal opinion was not even necessary in the circumstances.’
It could also be the case that the instructions given to counsel are contrary to the clear instructions of the client and counsel proceeds to take further legal steps based on such contrary instructions, as was the case in Namibian Electrical Services CC v PD Theron & Associates. In that regard, the learned Sibeya J stated that:
‘With that said, the legal question that now arises is whether an attorney’s duty of care towards his client, can extend to advising a client to the contrary, if an envisaged course of action is not viable in the circumstances of a case? The answer will always be in the affirmative, especially in the instance where the legal practitioner concerned has conducted the necessary research and analysis.’
The obligation to protect a client’s case from jeopardy falls equally on legal practitioners. Protecting a client’s rights will ultimately mean not delaying that client’s case without a proper excuse. The courts will not entertain the resultant condonation to start with and in appropriate cases, the court may order against the legal practitioner. We see the concept of culpable inactivity being developed further to equate with considerations of costs de bonis propriis, contempt of court, or other sanctions for non-compliance that bears directly on the legal practitioners. It should be avoided at all costs. However, we are not saying legal practitioners must strike a perfect record, no. On the contrary, we accept that a perfect record is impossible to achieve, provided there is a justifiable explanation. This is what a diligent legal practitioner should do – avoid culpable inactivity.
Part of this discussion brings into play the issue of “general legal practitioners”. Everyone takes in all sorts of instructions, including those they have no capacity to handle. Unless you want to learn on the job, and thus risk not representing the interest of the client well, it is better to take instructions you can handle. This further calls for the need to specialize in fields of interest. This is a process that would take time, but it is necessary. One of the foundational ideas of FASZ Legal Consultancy is to assist legal practitioners to bring out their areas of specialization/interest through various interventions, to the public. Once that is known by the public, legal practitioners may actually concentrate on their areas of specialization. That journey starts today.
Fedden Mainga Mukwata – Legal Pundit
Uno Uanivi – 3rd Year LLB Student (UNAM
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