Accountability of legal practitioners
Re: Open Letter to the Minister of Justice, the Honourable Minister Dr Albert Kawana
Honourable Minister Dr Albert Kawana,
I feel that I have no other option than addressing in an open letter a matter related to a very contentious issue, much debated in Namibia, the matter of foreign participation in land-owning enterprises in our country.
I assume that the Namibian laws serve a very distinct, well-considered purpose.
The Agricultural Land Act, and in particular its Section 58, which makes provision for the fact that Agricultural Land may not be acquired by what is called a “Foreign National”, serves a certain purpose. I suppose that the purpose, amongst others, is to make agricultural land available front and foremost to Namibians and moreover to see to it that agricultural land is used productively to the best advantage of the country - as opposed to laying fallow for the mere private enjoyment of wealthy foreigners.
As such the fact that Namibians are ordered by law to hold the controlling interest over agricultural land is definitely not to the disadvantage of Namibians. In principle Namibians could have no interest whatsoever to violate this law. Control, however, could be a crucial aspect in any business venture. Therefore foreigners naturally could be inclined to try and get access to control in this matter. It is generally the foreigner, who tries to find ways around the prescribed controlling interest. If, however, loopholes are discovered and exploited by legal experts, Namibians could find themselves in a vicious circle. To be compatible amidst escalating land prises it could be that Namibians are pressurized into what might be termed a legal grey zone regarding the controlling interest scenario in agricultural land enterprises.
Foreign investors in agricultural land in Namibia are often seasoned, wealthy business people well versed in legal matters. Those from within the subcontinent very often moreover are familiar with the Namibian situation and well connected in our country. This scenario may create a lucrative business avenue for legal practitioners, not always necessarily to the benefit of locals; a fact which everyone has to live with, as long as legal practitioners keep within the confines of the law.
The unlawful transfer of agricultural land, according to Section 58, can have severe consequences. A private individual cannot attend to or execute the transfer of a farm.
This complicated legal act has to be attended to by legal professionals. I suppose that these legal professionals have to adhere to and are bound by strict legal provisions. I furthermore suppose that legal professionals are not beyond the law, nor are they a law on themselves. Within this scenario, Honourable Minister Dr Kawana, I have to pose a fundamental complex of questions.
1. The first fundamental question in the case of an unlawful transfer of agricultural land, I suppose, has to be: have the legal professionals responsibly followed all routes of due diligence and adhered to legal requirements?
a) My question, Honourable Minister Dr Kawana, is: who is responsible to pose this fundamental question and at what stage must this question be posed and answered to avoid the possibility of severe unjust?
2. My second question, Honourable Minister, is related to the professional norms and standards governing the practice of legal professionals; more particular the question of conflict of interest. A seasoned, respected legal expert has explained to me the issue as follows: “legal practitioners may not as a general rule accept instructions which conflict with the instructions and interests of an existing client or continue to continue to act for or represent two or more clients whose instructions they accepted in the event of a conflict arising between such mandates subsequently. Observance of this rule is particularly important if the legal practitioners concerned have come in possession of confidential information of the party they would no longer represent.”
a) Here my question is: must Law Firms attending to the transfer of agricultural land on behalf of a legal entity (i.e. Pty) - the legal entity thus being the client - remain neutral towards all participants in such entity or may they withhold crucially important information from one member of such legal entity (or from the entity as such) thereby possibly risking irreparable damage to the legal entity and its members?
c) Moreover, is it permissible within the professional norms and standards governing the practice of legal practitioners for a Law Firm involved in the illegal transfer of agricultural land, which, should this illegal transfer have remained unnoticed, would have been to the advantage of and serve the declared intentions and desire of a foreigner to achieve an (illegal) 50/50 scenario, for this Law Firm to represent in a court of law one participant of the legal entity (i.e. Pty) against its former client? This could boil down to a scenario, where a legal practitioner and one participant in a legal entity have formed a conspiracy against a member in the hope that the illegality would remain unnoticed. Is such permissible?
3. Another complex of questions is related to transparency regarding the trust accounts kept by Law Firms for monies of their clients, in this case the client in the transfer of agricultural land being a legal entity (i.e. Pty)
a)Is it permissible for Law Firms to accept overpayment of a bill (for example transfer cost bill) brought about by one participant in the legal entity - seemingly with a certain clandestine purpose in mind -, without the Law Firm informing the legal entity or all members of that legal entity of the overpayment in question? (The overpayment resulting from a Namibian member paying his 51% share as per agreement and legal prescription, plus the payment of a foreigner of 50% without any base for such.)
b)This question of transparency is aggravated by the fact that subsequently the baseless 50% payment figure on the consolidated statement of that Law Firms trust account (which overpayment was not made known to a member of said legal entity) is used in court to substantiate arguments within a conflict of interest scenario. My question is, is this lack of transparency regarding trust accounts (aggravated by the additional withholding of crucially important information regarding the illegality of the transfer of agricultural land as such) acceptable within the professional norms and standards governing the practice of legal practitioners?
Within the small community of legal practitioners in Namibia, members of this community might be reluctant to address wrongdoings by colleagues. This might result in such wrongdoings never being addressed in court. Anyhow justice and equality are not given, due to the fact that many people, even if in the right, do not have the financial means at their disposal and the mental resolve to see a legal route through to the bitter end. It cannot be that above and beyond all this fundamentally important aspects are not addressed.
Having approached all avenues at my disposal to shed light onto the fundamental question whether a Law Firm responsible for the illegal transfer of agricultural land has followed all routes of due diligence in the process, possibly has been negligent, perhaps acting in conflict of interest or even fraudulently - each and all of which may have caused severe unjust -, I see no other way than to address this matter in an open letter to you, Honourable Minister Dr Albert Kawana.
I have had enough, I’m beyond the point of no return. Having been insulted to the blood, financially cupped and drained by legal manoeuvres intended to financially ruin me, had a sheriff in my house sent by a legal practitioner to try and impound my property, without involved parties executing the circumspection required for such drastic act infringing on basic human rights.
I went out of my way to fend off legal manoeuvres, aimed on draining me financially, which would have ruined the livelihood of 16 employees with 79 dependants and ruined a conservation initiative to protect the critically endangered black rhino, to which I have devoted my life.
I was brought up with the understanding that one of the pillars of democracy is citizens who have the courage of their conviction. I feel that something is fundamentally wrong. I humble request you, Honourable Minister, to attend to my concerns and advise me accordingly.
Yours sincerely
Kai-Uwe Denker, Omaruru
Honourable Minister Dr Albert Kawana,
I feel that I have no other option than addressing in an open letter a matter related to a very contentious issue, much debated in Namibia, the matter of foreign participation in land-owning enterprises in our country.
I assume that the Namibian laws serve a very distinct, well-considered purpose.
The Agricultural Land Act, and in particular its Section 58, which makes provision for the fact that Agricultural Land may not be acquired by what is called a “Foreign National”, serves a certain purpose. I suppose that the purpose, amongst others, is to make agricultural land available front and foremost to Namibians and moreover to see to it that agricultural land is used productively to the best advantage of the country - as opposed to laying fallow for the mere private enjoyment of wealthy foreigners.
As such the fact that Namibians are ordered by law to hold the controlling interest over agricultural land is definitely not to the disadvantage of Namibians. In principle Namibians could have no interest whatsoever to violate this law. Control, however, could be a crucial aspect in any business venture. Therefore foreigners naturally could be inclined to try and get access to control in this matter. It is generally the foreigner, who tries to find ways around the prescribed controlling interest. If, however, loopholes are discovered and exploited by legal experts, Namibians could find themselves in a vicious circle. To be compatible amidst escalating land prises it could be that Namibians are pressurized into what might be termed a legal grey zone regarding the controlling interest scenario in agricultural land enterprises.
Foreign investors in agricultural land in Namibia are often seasoned, wealthy business people well versed in legal matters. Those from within the subcontinent very often moreover are familiar with the Namibian situation and well connected in our country. This scenario may create a lucrative business avenue for legal practitioners, not always necessarily to the benefit of locals; a fact which everyone has to live with, as long as legal practitioners keep within the confines of the law.
The unlawful transfer of agricultural land, according to Section 58, can have severe consequences. A private individual cannot attend to or execute the transfer of a farm.
This complicated legal act has to be attended to by legal professionals. I suppose that these legal professionals have to adhere to and are bound by strict legal provisions. I furthermore suppose that legal professionals are not beyond the law, nor are they a law on themselves. Within this scenario, Honourable Minister Dr Kawana, I have to pose a fundamental complex of questions.
1. The first fundamental question in the case of an unlawful transfer of agricultural land, I suppose, has to be: have the legal professionals responsibly followed all routes of due diligence and adhered to legal requirements?
a) My question, Honourable Minister Dr Kawana, is: who is responsible to pose this fundamental question and at what stage must this question be posed and answered to avoid the possibility of severe unjust?
2. My second question, Honourable Minister, is related to the professional norms and standards governing the practice of legal professionals; more particular the question of conflict of interest. A seasoned, respected legal expert has explained to me the issue as follows: “legal practitioners may not as a general rule accept instructions which conflict with the instructions and interests of an existing client or continue to continue to act for or represent two or more clients whose instructions they accepted in the event of a conflict arising between such mandates subsequently. Observance of this rule is particularly important if the legal practitioners concerned have come in possession of confidential information of the party they would no longer represent.”
a) Here my question is: must Law Firms attending to the transfer of agricultural land on behalf of a legal entity (i.e. Pty) - the legal entity thus being the client - remain neutral towards all participants in such entity or may they withhold crucially important information from one member of such legal entity (or from the entity as such) thereby possibly risking irreparable damage to the legal entity and its members?
c) Moreover, is it permissible within the professional norms and standards governing the practice of legal practitioners for a Law Firm involved in the illegal transfer of agricultural land, which, should this illegal transfer have remained unnoticed, would have been to the advantage of and serve the declared intentions and desire of a foreigner to achieve an (illegal) 50/50 scenario, for this Law Firm to represent in a court of law one participant of the legal entity (i.e. Pty) against its former client? This could boil down to a scenario, where a legal practitioner and one participant in a legal entity have formed a conspiracy against a member in the hope that the illegality would remain unnoticed. Is such permissible?
3. Another complex of questions is related to transparency regarding the trust accounts kept by Law Firms for monies of their clients, in this case the client in the transfer of agricultural land being a legal entity (i.e. Pty)
a)Is it permissible for Law Firms to accept overpayment of a bill (for example transfer cost bill) brought about by one participant in the legal entity - seemingly with a certain clandestine purpose in mind -, without the Law Firm informing the legal entity or all members of that legal entity of the overpayment in question? (The overpayment resulting from a Namibian member paying his 51% share as per agreement and legal prescription, plus the payment of a foreigner of 50% without any base for such.)
b)This question of transparency is aggravated by the fact that subsequently the baseless 50% payment figure on the consolidated statement of that Law Firms trust account (which overpayment was not made known to a member of said legal entity) is used in court to substantiate arguments within a conflict of interest scenario. My question is, is this lack of transparency regarding trust accounts (aggravated by the additional withholding of crucially important information regarding the illegality of the transfer of agricultural land as such) acceptable within the professional norms and standards governing the practice of legal practitioners?
Within the small community of legal practitioners in Namibia, members of this community might be reluctant to address wrongdoings by colleagues. This might result in such wrongdoings never being addressed in court. Anyhow justice and equality are not given, due to the fact that many people, even if in the right, do not have the financial means at their disposal and the mental resolve to see a legal route through to the bitter end. It cannot be that above and beyond all this fundamentally important aspects are not addressed.
Having approached all avenues at my disposal to shed light onto the fundamental question whether a Law Firm responsible for the illegal transfer of agricultural land has followed all routes of due diligence in the process, possibly has been negligent, perhaps acting in conflict of interest or even fraudulently - each and all of which may have caused severe unjust -, I see no other way than to address this matter in an open letter to you, Honourable Minister Dr Albert Kawana.
I have had enough, I’m beyond the point of no return. Having been insulted to the blood, financially cupped and drained by legal manoeuvres intended to financially ruin me, had a sheriff in my house sent by a legal practitioner to try and impound my property, without involved parties executing the circumspection required for such drastic act infringing on basic human rights.
I went out of my way to fend off legal manoeuvres, aimed on draining me financially, which would have ruined the livelihood of 16 employees with 79 dependants and ruined a conservation initiative to protect the critically endangered black rhino, to which I have devoted my life.
I was brought up with the understanding that one of the pillars of democracy is citizens who have the courage of their conviction. I feel that something is fundamentally wrong. I humble request you, Honourable Minister, to attend to my concerns and advise me accordingly.
Yours sincerely
Kai-Uwe Denker, Omaruru
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