CODeL ASSIGNMENT COVER

2023 ACADEMIC YEAR

Student Name Thelma sukoluhle xamu

Student number 222019999
Email address thelmaxamu17@gmail.com
Cell/Tel no 0815697039
CODeL Centre windhoek
Programme of study law

Course/Module Name Course/Module

Code
Legal and professional ethics L3540PL

Assignment no

1
Question 1

The legal practitioners act 15 of 19951 prescribes the requirements for admission and authorization
for one to practice as a legal practitioner. The legal practitioners act 15 of 1995 section 1(b) defines
a legal practitioner as

“a person who in terms of the act has been admitted and authorized to practice as a legal
practitioner or is deemed to have been admitted and authorized”

In Ex Parte Kamwi [2020] NAHCMD2 the court stated that, the court shall admit and authorize to
practice as a legal practitioner any person who, upon application made by him/her satisfied the
court that he /she is fit and proper person to be admitted and authorized and duly qualified. One
can therefore point out that the text, “admitted and authorized to practice,” shows us that for one
to be admitted and to practice as a legal practitioner they have to fit and meet a standard that is
provided by this act. And if that person or any other does not possess requirements and attributes
stipulated in the act they can not practice as a legal practitioner. The desire to be admitted and
authorized to practice, alone, without the contemporaneous and compliance with the legislative
solicitudes expressed in the act cannot make one a legal practitioner.

In the case of Watson versus The Law Society of Namibia3 the court held that Legal Practitioners
act 1995 is the legislation that set out the requirements to be met by the applicant who aspires to
practice as a legal practitioner. The court also held that the applicant is that legal and ethical
obligation to meet the requirements of that legislation and that includes the disclosure of any
information that may be contrary to the requirements of the act. It was also held that aspiring legal
practitioners are expected in all their personal and professional dealings to exhibit utmost good
faith in the court, other legal practitioners and the public and that a failure in that regard may render
them unfit to be admitted as a practicing legal practitioner.

Question 2

1
The legal practitioners act 15 of 1995
2
Ex Parte Kamwi [2020] NAHCMD
3
Watson versus The Law Society of Namibia
Legal ethics is a term used to describe a code of conduct governing proper professional behavior,
which establishes the nature of obligations owed to individuals and to society. legal practitioner”
means a person who, in terms of the Legal Practitioners Act 15 of 1995 , has been admitted and
authorised to practise as a legal practitioner or is deemed to have been so admitted and authorised,
and candidate legal practitioner” means a person registered by the Board as undergoing the course
of post-graduate study.

All legal professionals, lawyers and non-lawyers alike, are expected to maintain strict ethical
standards – for the protection of colleagues, clients, the court, and anyone even tangentially
affected by a case. Legal professional refers to individuals qualified to practice law in a particular
jurisdiction or a lawyer and a licensed paralegal practitioner. The ethical rules guide lawyers in all
aspects of their representation of clients. They are integral to every facet of the law and its practice.

One can therefore point out that law students are neither legal professionals nor legal practitioners
so therefore they are not bound by legal ethics. The legal professionals Act 15 of 1995 gives a
definition of what a legal practitioner is as well as the candidate legal practitioner. A candidate
legal practitioner as alluded earlier is a one who is undergoing the course and is yet to be admitted
and or authorized. This means that prio to authorization to practice they are not legal practioners
therefore legal ethics do not apply to them. The English dictionary defines a law student a person
who is studying law. This means that a student and aa professional are two distinct individuals ,
one is studying and the other is qualified. The qualified and authorized to practice is the therefore
guided by a code of ethics which do not apply to the one who aspires to qualify and be admitted
to practice.

Question 3

Legal and professional misconduct refers to the dishonorable or disgraced conduct by an advocate.
It can also be defined as the behavior outside the limits of what is observed as worthy or acceptable
by the governing figure of a profession. There are a number of various categories of legal and
professional misconduct which are:

Non-performance of duty. This situation is also known as dereliction of one’s duty. This is
whereby an advocate either hands over the brief of the case to some other advocate or he abandons
the client and fails to discharge the required duty. Such a transfer refers to professional
misconduct.

Misappropriation. Misappropriation can be defined as that scenario wherein money is acquired

by an advocate from his client for purposes relating to the case, however the advocate misuses the
acquired funds for purposes other than those related to the case. In the case of D. Dalal versus
SBL4 an advocate was accused of misappropriating the amount acquired by him from the client.
The amount was collected for the purposes of filing of a suit and the rest was the professional fees.
The advocate blaming the high court claimed that the High Court registry had lost the suit papers.
However, it was found that the registry had returned the papers to the lawyer for the removal of
objections and it was the advocate who had not refiled the suit for a prolonged period. A
disciplinary committee was set up against the advocate. The committee found the advocate guilty
of embezzlement of funds paid by the client and thus, punished the advocate for misconduct.

Contempt of Court and inappropriate behavior before the magistrate. Contempt of Court may
be described as an offence wherein an advocate is disrespectful or disobedient towards either the
court of law or any of its officers by ways of behavior that disobeys or is against the justice,
authority, and dignity of the court. It is an advocate’s duty to respect and maintain the dignity of
the court. False allegations made against any officer of the judiciary amounts to misconduct. In
2010 M.V Jayarajan, leader of the communist party of India, was sentenced to six months in prison
for contempt of court after he passed comments criticizing the Kerala High Courts decision to ban
meetings of people in public places. His sentence was however reduced to four months after an
appeal to the Apex Court.

Giving inappropriate advice. Advocacy is a righteous, noble and honorable profession thus, it is
the duty of an advocate to provide his clients with the best knowledge, judgement and talent. An
advocate must always give proper advise to the client consulting him. Incase the advocate is not
able to take up the client’s case, he must advise him to consult some other counsel rather than
giving improper advice that may harm the client in anyway. The imparting of improper or
inappropriate advice by the advocate amounts to misconduct.

4
D. Dalal versus SBL
These are certain acts which amount to legal and professional misconduct. However, there are
several other ways that can lead to an advocate being charged with legal and professional
misconduct. Other forms of professional misconduct include, stating made up facts or lies to the
client, forgery or fraud, coercing colleagues, suggesting or trying to bribe the officer of the court
and pressuring the witnesses to not state the truth or state fabricated facts.

Question 4

Emperor Justiniun, ordained

“But those who are born of a union which is entirely odious to us, and therefore prohibited, shall
not be called natural children and no indulgence whatever shall be extended to them. But this fact
shall be punishment for the fathers, that they know that children who are the issue of their sinful
passion will inherit nothing”, for the preservation of chastity is the first duty of freedom of an
illustrious woman” and because it would be unjust, and very oppressive and unworthy of the spirit
of our age, for bastards to be acknowledged”

It is important to note that Article 10 of the Namibian constitution states that, all persons shall be
equal before the law. This however seems to be against the common law rule that an illegitimate
child cannot inherit intestate from his father. Which in other words raises the question of
discrimination on the grounds of social status which Article 10 (b) of the Namibian constitution
prohibits. Article 15 (1) of the Namibian constitution also states that, children have the right to
know and be cared for by their parents. This Article does discriminate against those born out of
wedlock.

In Frans v Paschke and Others the court quoted the Muller v President of the Republic of Namibia,
1999 Nr 190 (SC)5, case in which Strydom CJ dealt with article 10(2) of the Namibian constitution
and stated:

Article 10(2) guarantees non-discrimination on the basis of the grounds set out therein would be
defeated if the doctrine of reasonable classification is applied thereto and would be to negate that
right. The grounds mentioned in art 10(2), namely sex, race, color, ethnic origin, religion, creed
or social or economic status, are all grounds which, historically, were singled out for

5
Muller v President of the Republic of Namibia, 1999 Nr 190 (SC)
discriminatory practices exclusively based on stereotypical application of presumed group or
personal characteristics.

One can therefore point out that the common law rule still crucifies illegitimate children for the
sins of their “lustful parents”. As I have endeavored to show, the existence of the common law
rule is rooted in punishment, and not as to create certainty for the executor when he finalizes the
estate. By design or result, the social stigma which attached to adulterous and incestuous children
was transferred to children born out of wedlock which is unethical in modern day society. A person
born outside marriage must, for purposes of inheritance, either intestate or by testamentary
disposition, be treated in the same manner as a person born inside marriage. The law requires that
the offenders or that may be will be punished for their sins not other parties or their children.
Equality before the law requires that all individuals be treated as equals regard of their social
standing.

Question 5

A stakeholder means any people or groups who are positively or negatively impacted by a project,
initiative, policy or organization. Two types of stakeholders in the legal profession are;

Lawyer. A lawyer acting as a stakeholder for two or more parties must strictly adhere to the terms
of the stake holding at all times, to avoid facing unnecessary legal actions being brought against
them. Tan Sue Vern’s Case study (1 March 2014)6, says that, the lawyer as a stakeholder is the
one who holds documents, money or any form of property pending outcome of a future event, for
an example in sale and purchase transactions involving land, a stakeholder holds the purchase price
monies as a stakeholder pending the completion of the sale and purchase agreement. In most of
the se cases the stakeholder is the lawyer representing the purchaser or the vendor as opposed to
an independent third party. A lawyer acting as a stakeholder should remain neutral in his duty, and
is required to hold the property or money according to the terms of undertaking pending future
outcome of the event.

Tan Sue Vern gives an example of a Case study where Allan prepared a will for his wife, Bonnie
and son, Clive to have the assets distributed in equal shares including a double storey link house
and appointed Dexter and Eleanor to be the executors under the will. A year after the will was

6
Tan Sue Vern’s Case study (1 March 2014)
executed, Alan passed away. The executors, Dexter and Eleanor were subsequently granted
probate in line with the will. Five years later, Bonnie met Yvonne from Messrs Yvonne and Co to
inform him that a buyer had been found for the house and retained Yvonne to act in the SPA of
the said house. The vendors of the SPA were the executors, Dexter and Eleanor. When the SPA
was duly completed and keys to the house were handed over to the purchasers, the proceeds were
by Yvonne as a stakeholder. The terms of the stake holding provided that Yvonne was to hold the
balance purchase price and release the purchase price to the vendors i.e the executors, Dexter and
Eleanor who were empowered under the will to distribute equally to Bonnie and Clive.

Yvonne stated that Bonnie verbally instructed her to then remit the purchase price of the property
to Clive’s account. Bonnie later informed Yvonne that Clive had refused to give Bonnie her 50%
share in the purchase price monies. Bonnie then brings an action against Yvonne for breaching her
duty as a stakeholder. As demonstrated by the case above, Yvonne made the mistake of releasing
stakeholder sum of money upon receiving instruction from Bonnie without giving much thought
to whether the person giving the instructions has the authority to give such instructions in line with
the terms of stake holding. Bonnie was not the relevant party under the terms of stake holding.

Client. Clients are actually stakeholders in the legal profession in that they are impacted by the
quality of service and their value for example a client who trusts a lawyer to handle his/her case
literally have their lives in the lawyer’s hands when they are in court. The client as a stakeholder
wants services that the lawyer delivers and they expect it to be quality services, so the client
depends on the company to supply services. The services provided to the client will determine the
client’s loyalty to the company. Lawyers or companies need to make conscious efforts to relate to
clients and meet their needs. In general meeting the client’s needs is an important area of concern
for ensuring the success of any company.