IMMANUEL GARAB V THE LEGAL PRATITIONERS' DISCIPLINARY COMMITTEE

CIVIL PROCEDURE

Appeal against decision of Disciplinary Committee to dismiss application to hear complaint of unprofessional conduct by practitioner - right to appeal under s.35(3) -not apparent whether Legislature intended "appeal" in ordinary or wider sense of the word - minimum requirement that appeal must be brought on notice to the DC -interests of DC and practitioner concerned in outcome of the appeal.

Application - Declarator to set aside proceedings in magistrate's court leading to the conviction of the applicant - parties that should be joined to such proceedings - failure to comply with other procedures prescribed in the rules and to attach record.

Non-joinder - failure to join necessary parties to the proceedings - effect of - application and appeal struck.

CASE NO. CA 65/2000

IN THE HIGH COURT OF NAMIBIA

In the matter between:

and
THE LEGAL PRACTITIONERS'

JUDGMENT MARITZ, J.:
The matter before us purports to be an appeal against the decision of the Legal Practitioners' Disciplinary Committee not to take disciplinary action against the appellant's former legal representative. It also purports to be an application for a declarator "to nullify the whole court process under which (the appellant) was subjected to during March and April 1995 and to order a retrial as a matter of urgency".

Much the same applies to the application for a declarator: It is not brought on Notice of Motion as required by rule 6 of the Rules of Court but rather in the form of a "request" incorporated in the "Introductory Note" we have referred to earlier. It has not been served on any person. No one has been cited as a party to the application and no opportunity has been afforded to anyone with a direct and substantial interest in the relief prayed for to oppose the application. The record of the criminal proceedings that the applicant is seeking to set aside has not even been incorporated as part of the record.

The "appeal" and "application", unprocedural and fraught with defects as they are, have also been set down more that a year ago before other Judges of this Court. The Legal Practitioner who the appellant/applicant engaged on that occasion has since withdrawn and the same defects on the papers before the Court on that occasion are still apparent at this hearing. Mr Cohrssen, who was present at the previous hearing, informs us that he expressly raised some of the shortcomings on that occasion. It is apparent that nothing has been done about them. Without rectification of the procedural shortcomings, citation of the necessary parties and service on them, the appeal and application cannot move forward. The appellant will be well-advised to inform himself of the procedural requirements prescribed by the Rules of Court or to seek legal assistance in that regard - as has apparently been granted by the Legal Aid Directorate of the Ministry Of Justice.

Given the number of affidavits and other documents annexed, the appellant/applicant's failure to remedy the defects and omissions in the appeal and application since the previous postponement, the admitted lack of effort on the part of the appellant/applicant to inform himself of the requirements of the Rules, the time it takes to peruse the documents in the Court's file and the time set aside for the hearing of this matter, we are of the view that the applicant should not be allowed to set this matter down for hearing on any future date unless he has first applied for and obtained the leave of the Court to do so.

In the premises the following order is made: 1.      The matter is struck from the roll.

2. The appellant/applicant may not set the matter down for hearing on any future date, unless he has first applied for and obtained leave of the Court to do so.

I agree.

MANYARARA, A.J.

Legal Practitioners Disciplinatry Committee