- December 1, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
In this appeal against an order of the High Court granting absolution from the instance, the notice of appeal was filed 15 months late which necessitated the launching of a condonation application and an application for reinstatement of the appeal. In a founding affidavit supporting the application, the deponent contended that the appellant stands to suffer serious prejudice if it is not allowed to proceed with the appeal. She listed the following examples in order to demonstrate the prejudice the appellant would suffer:
(a) the respondent’s legal practitioner is not a senior legal practitioner yet he over-charges at N$6000 per hour – by contrast most senior counsel in Namibia charge N$4000 per hour;
(b) the respondent’s legal practitioner allegedly spent six hours on researching the Usury Act 63 of 1978 – bearing in mind the Usury Act is 42 years old and has only 19 sections, both the fee and time spent are unreasonable and inappropriate;
(c) the respondent’s legal practitioner charges his hourly fee for appearances at case management which were attended by more junior practitioners;
(d) the respondent’s legal practitioner tendered the costs of the first day of the trial being 29 July 2019. Despite that, work done allegedly for three hours and 40 minutes on 29 July 2019 are included in the bill of costs;
(e) the respondent’s legal practitioner charges a reservation fee of N$240 000 which, as an instructing legal practitioner, he is simply not entitled to; and
(f) the respondent’s legal practitioner charges a reservation fee for 29 July 2019 in circumstances where those costs have been tendered and awarded to the appellant.
The deponent to the founding affidavit viewed the bill of costs as glaringly excessive, entirely unrealistic, and completely unacceptable in circumstances where the alleged costs of an astonishing N$880 100 was in respect of a simple case which was finished on the first day of the trial.
The Supreme Court said the following in respect of allegations of gross overreaching by the legal practitioner who acted on behalf of the respondent.
The instructing legal practitioner in a supporting affidavit stated that a junior legal practitioner represented the appellant during the trial proceedings. After absolution from the instance was granted by the court a quo, the junior legal practitioner informed her about the outcome, and she advised the junior legal practitioner to consult an advocate. At this stage, the written reasons by the court a quo were not yet available. The advocate was of the opinion that in the circumstances of the matter as relayed to him by the junior legal practitioner, absolution from the instance was not final and thus not appealable. It appeared to the instructing legal practitioner that a misunderstanding between the junior legal practitioner and the advocate had occurred. According to the instructing legal practitioner, the refusal of absolution from the instance is not appealable while the granting of absolution from the instance is appealable as of right.
It was therefore on the basis of this misunderstanding that the junior legal practitioner proceeded to have the case re-enrolled, for the omitted documents to be discovered, and tendered into evidence.
The appellant’s instructing legal practitioner stated that she instructed another advocate to prepare papers for an intended urgent application who then advised that the order granting absolution from the instance was final and appealable and was advised to consider bringing an appeal against the decision of the court a quo. The appellant’s legal practitioner instructed this advocate to prepare a notice of appeal. The final papers were returned to her on 14 July 2020 for her consideration.
The appellant then filed an application to this court erroneously in terms of the provisions of rule 5 of the Rules of the Supreme Court. This application subsequently was heard by a single judge and removed from the roll because the application was erroneously brought under rule 5. The appellant’s instructing legal practitioner averred that it was at this stage that a senior counsel also advised that a condonation application must be lodged. It was, according to the instructing legal practitioner of the appellant, this process which culminated in the second notice of appeal and the application for condonation and reinstatement.
Finally, it was stated that the reason why the notice of appeal was not filed within the time limits prescribed by the rule was because both the junior legal practitioner as well as herself (instructing legal practitioner) harboured under the mistaken belief that the order granting absolution from the instance was not final.
HOFF JA (SHIVUTE CJ and MAINGA JA concurring) considered the matter thus:
‘[36] The explanation provided for the non-compliance with the rules of court by the instructing legal practitioner was, in my view, a weak and an unpalatable explanation. I say this because a seasoned legal practitioner, like the instructing legal practitioner, could easily by way of a simple research have established the true legal position. 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, it was not even necessary in the circumstances for a referral to an advocate for a legal opinion.
[55] It is, in my view, also necessary to consider the issue of prejudice raised by the appellant in its founding affidavit. No opposing affidavit was filed and I must, in these circumstances, give due weight to those averments in the founding affidavit. In short, it amounts to an allegation of gross overreaching, euphemistically put, by the legal practitioner who acted on behalf of the respondent.
[56] I agree with the appellant that it stands to suffer serious prejudice if it is not allowed to proceed with the appeal. To disagree would, in effect, reward overreaching. In my view, this is a matter which ought to be brought to the attention of the Law Society of Namibia.
As a result, the registrar was requested to bring the matter to the attention of the Director of the Law Society of Namibia.
Standard Bank Namibia Limited v Nekwaya (SA 95-2020) [2022] NASC (1 December 2022) – overreaching