STUDY GUIDE

Legal Aid Clinic and Professional Ethics

LLB (Honors)
PLC 3870

Centre for Innovation in Learning and Teaching

Learning Design Section
Copyright
Copyright©2022University of Namibia. All rights reserved. No part of this publication may be
reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise without the prior permission of the publishers.

Edited and Published by Centre for Innovation in Learning and Teaching

University of Namibia, Windhoek

Centre for Innovation in Learning and Teaching

Learning Design Section
Private Bag 13245
Pioneers Park
Windhoek
Namibia

Tel: +264 61 206 3676

Online Help Desk: [Link] (Help Topic: Study Material)
[Link]
Acknowledgements
The Centre for Innovation in Learning and Teaching and the Learning Design Section wishes to thank
those below for their contribution to this study guide:

Iyaloo Hamulungu Author(s)

Pius Iikwambi Content Editor(s)

Phillipus Balhao

Godwin Murangi Instructional Designer

Fiona Anderson

Alfeus Tjiuoro Language Editor

Gabriel Uunona Quality Controller

 Legal Aid Clinic and Professional Ethics

Contents
About this study guide 1
How this study guide is structured ................................................................................... 1

Course overview 3
Welcome to Legal Aid Clinic and Professional Ethics LPLC 3870................................. 3
Legal Aid Clinic and Professional Ethics LPLC 3870 — is this course for you? ............ 3
Exit Learning Outcomes ................................................................................................... 3
Time frame ....................................................................................................................... 4
Study skills ....................................................................................................................... 4
Need help? ........................................................................................................................ 5
Assignments ..................................................................................................................... 6
Assessments ...................................................................................................................... 6

Getting around this study guide 7

Margin icons ..................................................................................................................... 7

Unit 1 8
INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE ................................... 8
Introduction ............................................................................................................. 8
1. What is clinical legal education? ........................................................................ 9
1.1. The nature of legal aid .............................................................................................. 10
[Link] following are skills are necessary for a law student in the law clinic:................ 12
2. Client Intake and Consultation.......................................................................... 13
[Link] in Consultation ............................................................................................... 15
[Link] Instructions .................................................................................................... 17
I. After the consultation ................................................................................................ 18
3. Office and File Management ............................................................................ 18
3.1. Case management and opening files ......................................................................... 19
[Link] Registers ............................................................................................................. 20
3.3. The Diary System ..................................................................................................... 21
3.4. File management systems ......................................................................................... 21
Unit summary ................................................................................................................. 22
References ...................................................................................................................... 23

Unit 2 24
LEGAL WRITING AND DRAFTING .......................................................................... 24
Introduction ........................................................................................................... 24
1. Drafting Legal Letters ....................................................................................... 25
Specific letters ................................................................................................................. 26
 2. Legal opinions ................................................................................................... 30
3. Affidavits .......................................................................................................... 30
5. Heads of Arguments and Pleadings .................................................................. 31
[Link] of Argument .................................................................................................... 31
[Link] .................................................................................................................... 32
6. Alternative Dispute Resolution (ADR) ............................................................. 33
6.1. Arbitration................................................................................................................. 34
6.2. Determination by an independent third party ........................................................... 34
6.3. Mediation .................................................................................................................. 35
6.4. Negotiation ............................................................................................................... 36
Unit summary ................................................................................................................. 36
References ...................................................................................................................... 37

Unit 3 38
TRIAL SKILLS .............................................................................................................. 38
Introduction ........................................................................................................... 38
1. Opening statement .......................................................................................... 39
2. Examination-in-chief ........................................................................................ 42
3. Cross-examination.......................................................................................... 45
4. Re-examination .............................................................................................. 47
Unit summary ................................................................................................................. 48
References ...................................................................................................................... 48

Unit 4 49
ACTION AND APPLICATION PROCEEDINGS........................................................ 49
Introduction ........................................................................................................... 49
1. Action Procedure .............................................................................................. 50
2. Application Procedure ...................................................................................... 51
2.1. Types of applications ................................................................................................ 52
3. Prescription ....................................................................................................... 54
4. Discovery .......................................................................................................... 56
5. Trial ................................................................................................................... 56
Unit summary ................................................................................................................. 57
References ...................................................................................................................... 58

Unit 5 59
JUDGEMENT, EXECUTION, APPEALS AND REVIEWS........................................ 59
Introduction ........................................................................................................... 59
1. Judgements ........................................................................................................ 60
2. Executions ......................................................................................................... 60
3. Appeals and Reviews ........................................................................................ 62
 Unit summary ................................................................................................................. 64
References ...................................................................................................................... 65

Unit 6 66
PROFESSIONAL ETHICS ............................................................................................ 66
Introduction ........................................................................................................... 66
1. What is professional ethics? .............................................................................. 66
[Link] is a fit and proper person? ................................................................................. 67
2. Application of Ethical Rules ............................................................................. 71
[Link] with clients ............................................................................................ 71
2.3. Relationship with the other practitioners .................................................................. 72
[Link] with the Court ....................................................................................... 72
[Link] with the community .............................................................................. 73
[Link] with the State ........................................................................................ 73
[Link] with the Law Society ............................................................................ 74
3. Sources of Ethical Rules ................................................................................... 74
[Link] Legal Practitioner’s Act 15 of 1995 ................................................................... 75
Unit summary ................................................................................................................. 77
References ...................................................................................................................... 77
 Legal Aid Clinic and Professional Ethics

About this study guide

Legal Aid Clinic and Professional Ethics PLC 3870 has been produced by
the Centre for Innovation in Learning and Teaching (CILT). All study
guides produced by the CILT are structured in the same way, as outlined
below.

How this study guide is structured

The course overview
The course overview gives you a general introduction to the course.
Information contained in the course overview will help you determine:

▪ If the course is suitable for you.

▪ What you will already need to know.

▪ What you can expect from the course.

▪ How much time you will need to invest to complete the course.

The overview also provides guidance on:

▪ Study skills.

▪ Where to get help.

▪ Course assignments and assessments.

▪ Activity icons.

▪ Units.

We strongly recommend that you read the overview carefully before

starting your study.

The course content

The course is broken down into units. Each unit comprises:

▪ An introduction to the unit content.

1
About this study guide INTRODUCTION TO LEGAL AID CLINIC AND
PRACTICE

▪ Unit outcomes.

▪ New terminology.

▪ Core content of the unit with a variety of learning activities.

▪ A unit summary.

▪ Assignments and/or assessments, as applicable.

▪ Answers to Assignment and/or assessment, as applicable

Resources
For those interested in learning more on this subject, we provide you with
a list of additional resources at the end of this study guide; these may be
books, articles or web sites.

Your comments
After completing Legal Aid Clinic and Professional Ethics we would
appreciate it if you would take a few moments to give us your feedback
on any aspect of this course. Your feedback might include comments on:

▪ Course content and structure.

▪ Course reading materials and resources.

▪ Course assignments.

▪ Course assessments.

▪ Course duration.

▪ Course support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this

course.

2
 Legal Aid Clinic and Professional Ethics

Course overview

Welcome to Legal Aid Clinic and

Professional Ethics PLC 3870
This course has been designed to equip final year LLB students with skills
required for legal practice. The course will cover work in the Legal Aid
Clinic and preparations of legal documents and the giving advice to
indigent members of the community. Therefore, each student is required to
attend to clients in the Legal Aid Clinic in accordance with a prepared
schedule.

Students will be divided into groups and they will attend to the case files
as well as clients in their Legal Aid Groups/Firms. Furthermore, students
will be required to complete one impact assessment project for which they
will be graded.

Legal Aid Clinic and Professional

Ethics PLC 3870 — is this course
for you?
- Drafting skills.

- Interviewing skills

- Interpersonal skills

Exit Learning Outcomes

The exit learning outcomes for this course are:

▪ Facilitate legal drafting and research skills through legal writing;

3
Course overview INTRODUCTION TO LEGAL AID CLINIC AND
PRACTICE

▪ Develop trial advocacy skills through moot courts and/or dealing with
real clients;
▪ Develop appropriate analytical and problem-solving skills through
consulting with indigents and drafting court documents, i.e.
summons, legal opinions etc;
Exit Learning Outcomes
▪ Facilitate acquisition of knowledge and understanding of legal
principles applicable in a law clinic and the application of the law in
the Namibian Lower and High Courts.

Time frame
This is a year module.

Self-study time required is 2 hours per week.

How long?

Study skills
As an adult learner your approach to learning will be different to that from
your school days: you will choose what you want to study, you will have
professional and/or personal motivation for doing so and you will most
likely be fitting your study activities around other professional or domestic
responsibilities .

Essentially you will be taking control of your learning environment. As a

consequence, you will need to consider performance issues related to time
management, goal setting, stress management, etc. Perhaps you will also
need to reacquaint yourself in areas such as essay planning, coping with
exams and using the web as a learning resource.

Your most significant considerations will be time and space i.e. the time
you dedicate to your learning and the environment in which you engage in
that learning.

We recommend that you take time now—before starting your self-study—

to familiarize yourself with these issues. There are a number of excellent
resources on the web. A few suggested links are:

4
 Legal Aid Clinic and Professional Ethics

▪ [Link]
The “How to study” web site is dedicated to study skills resources.
You will find links to study preparation (a list of nine essentials for a
good study place), taking notes, strategies for reading text books,
using reference sources, test anxiety.

▪ [Link]
This is the web site of the Virginia Tech, Division of Student Affairs.
You will find links to time scheduling (including a “where does time
go?” link), a study skill checklist, basic concentration techniques,
control of the study environment, note taking, how to read essays for
analysis, memory skills (“remembering”).

▪ [Link]
Another “How to study” web site with useful links to time
management, efficient reading, questioning/listening/observing skills,
getting the most out of doing (“hands-on” learning), memory building,
tips for staying motivated, developing a learning plan.

The above links are our suggestions to start you on your way. At the time
of writing these web links were active. If you want to look for more go to
[Link] and type “self-study basics”, “self-study tips”, “self-
study skills” or similar.

Need help?
For routine enquiries please contact the Student Support Department at
+264 61 206 3416.

For further assistance you can go to your nearest Regional UNAM

Help Centre.

5
Course overview INTRODUCTION TO LEGAL AID CLINIC AND
PRACTICE

Assignments
Students are expected to complete one community impact project and
clinical work in the Law Clinic.

Please see tutorial letter for instructions on the submission of

assignments.
Assignments

Assessments
Course materials may have activities and/or self-assessment exercises to
check your own understanding of the material, but there are also tutor-
marked assignments/tests which you have to submit. Please see tutorial
letter for more details.
Assessments

6
 Legal Aid Clinic and Professional Ethics

Getting around this study guide

Margin icons
While working through this study guide you will notice the frequent use
of margin icons. These icons serve to “signpost” a particular piece of text,
a new task or change in activity; they have been included to help you to
find your way around this study guide.

A complete icon set is shown below. We suggest that you familiarize

yourself with the icons and their meaning before starting your study.

Activity Additional Answers to Assessment

reading Assessments

Assignment Audio Case study Discussion

Exit Learning Feedback Group Activity Help

Outcomes

Prescribed Recommended
Note it!/Warning Outcomes Reading website

References Reflection Study skills Summary

7
Unit 1 INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE

Terminology Tip Video

Unit 1

INTRODUCTION TO LEGAL AID

CLINIC AND PRACTICE
Introduction
In this unit you will be introduced to legal education. You will also learn
how consultations with clients are conducted. One of the most basic skills
required by any legal practitioner is how to conduct a proper consultation.
Consultation with a real client for the first time is likely to be an
intimidating, experience, particularly if you have had no training in
interviewing techniques.1

In this unit, you will also learn about file administration and record keeping
in the clinic. A system must be developed for the efficient administration
of the students and their involvement in the law clinic. This would usually
require students to be divided into groups or firms (usually no more than
10 students), and drawing up a detailed and weekly timetable regulating
the attendance of students at live-clients clinic, firm meetings,
consultations and follow-up meetings.

You will be introduced to office and file management in the law firm. It is
imperative for an attorney to possess good organisational skills, this will
ensure a smooth flow of files in the clinic or in the law firm/practice.

Upon completion of this unit you should be able to:

▪ explain what is clinical legal education and the rationale for legal aid
clinic;

1
De Klerk W et al. (2006). Clinical Law in South African (2nd Ed.) Durban:
LexisNexis, p. 55.

8
 Legal Aid Clinic and Professional Ethics

Outcomes ▪ consult clients in the legal aid clinic; take in clients;

▪ identify legal problems;

▪ take instructions from clients;

▪ manage files in the law clinic;

De Klerk, W et al. (2006). Clinical Law in SA (2nd Ed.) Durban:

LexisNexis.

Prescribed reading

Campher. 2002. “Taking instructions” in Practical Training Notes. Law

Society of South Africa

Additional reading

1. What is clinical legal education?

Clinical legal education can be defined as the experimental learning
whereby law students gain practical skills and knowledge and deliver legal
services in a social justice environment.2 In the process of offering legal
assistance, the students are exposed to real-life situations and play the role
of legal practitioners to solve legal problems. The students interact with
clients or each other to identify and resolve legal issues and supervised by
their teachers. This way, the students play an active role in the learning
process and experience how the law operates in practice, thereby applying
the theory to practical situations.

Clinical legal education focuses on the practicality aspect of the legal

education, while traditional legal education focuses on the theoretical

2
Mcquoid, D & Palmer, R. (2013). African Law Clinicians’ Manual, University
of Kwazulu-Natal, p. 1

9
Unit 1 INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE

aspect, in clinical legal education, students are equipped with tools that lay
the foundation for their future careers as lawyers. Through clinical legal
education, students also learn the values of social justice and social
responsibility while practicing law. 3 Social justice refers to the fair
distribution of health, housing, welfare, education and legal resources in
society.4 Social justice is concerned with what the indigent people need
rather than what they want.

In the law clinic, students are taught and trained on how to deal with clients
and their legal matters. To this end, students learn consultation and drafting
skills. This allows the law clinic to handle more cases than they usually
would have the capacity to handle as the students are not paid for their
services, but spend time taking instructions, photocopying documents. 5
Hence there are two components to legal aid and professional ethics, the
academic component, and the service component. In view of the academic
component, the students receive credit for their work at the clinic the same
as any of their law modules. The service component involves students
visiting prisons, schools or other organisations and teaching targeting
audiences about law, human rights, and democracy.

1.1. The nature of legal aid

We define Legal aid as the gratuitous provision of legal assistance to
persons who cannot afford to employ the services of legal practitioners.
Legal aid includes legal advice and representation by attorneys and
advocates before courts or tribunals in both criminal and civil matters.6

(i) What is clinical legal education?

(ii) What are the most important skills in the legal aid clinic?
Activity 1

3
Mcquoid, D & Palmer, R. (2013) p. 1
4
Honore, A.M. (1968) ‘Social Justice’ in Summers R (ed) Essays in Legal
Philosophy,p. 68.
5
Mcquoid, D & Palmer, R. (2013), p. 3.
6
McQuoid-Mason, D.J. (1982). An Outline of Legal Aid in South Africa.
Durban:Butterworth & Co. (SA) Ltd (Pty), p. 1.

10
 Legal Aid Clinic and Professional Ethics

(i) Clinical legal education can be defined as the experimental

learning whereby law students gain practical skills and
knowledge and deliver legal services in a social justice
environment.18 In the process of offering legal assistance, the
Feedback
students are exposed to real-life situations and play the role
of lawyers to solve legal problems. Clinical legal education
focuses on the practicalityaspect of the legal education, while
traditional legal education focuses on the theoretical aspect,
in clinical legal education, students are equipped with tools
that lay the foundation for their future careers as lawyers.
Through clinical legal education, students also learn the
values of social justice and social responsibility while
practicing law.

(ii) The following skills are very important in the legal aid clinic:
- client interviewing
- client counselling
- Trial advocacy
- Negotiation
- Critical thinking
- Problem-solvin

There are other organizations that have been established which are either
self-funded or state-funded such the Legal Assistance Centre (LAC) and
the Ministry of Justice’s Legal Aid Office.7 However, these are different
from the UNAM Legal Aid Clinic, which has two components as described
in the next section. LAC is based on charity and is a human rights
organization. Their aim being to make the law accessible to those with the
least access, through education, law reform, research, litigation, legal
advice, representation, and lobbying,with the ultimate aim of creating and
maintaining a human rights culture in Namibia.8

7
The Legal Aid Office is situated in Katutura, Windhoek, it is part of the Ministry
of Education and is established by the Legal Aid Act 29 of 1990. Therefore, it is a
creature of statute and is regulated by the said Act.
8
Available at [Link]

11
Unit 1 INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE

The UNAM Legal Aid Clinic operates as a constituent part of the School
of Law. It has its own budget. It is not regulated by any statute.

[Link] following are skills are necessary for a law student

in the law clinic:
✓ client interviewing

Client interviewing and the taking of instructions are very important as

they are the first point of contact between lawyers and clients. As a student
you should know how to put clients at ease and how to build trust between
you and the clients.9

✓ client counselling

Client counselling entails the attorney advising the client to identify the
legal problem. Students need to be trained to beable to take a client-centred
approach to counselling. Rather than telling the client what to do, the client
should be given choices regarding the alternative procedures that could be
followed and encouraged to make an informed decision on the path they
would like to follow.10

✓ Trial advocacy

Trial advocacy skills for law clinics require law students to be trained in
case analysis and trial preparation. Students also need to practice in the
oral andwritten skills necessary to prepare for, and conduct, preliminary
hearings in court.

✓ Negotiation

Negotiation is a skill that all lawyers require as most cases dealt with by
them involve attempting to reach an agreement about a certain matter.
Litigation is not the only way to settle issues, issues can also be settled
in an amicable way.11

9
Mcquoid & Palmer (2013), p. 80.
10
Mcquoid, D & Palmer, R. (2013), p. 80.
11
Lee, S & Fox, M. (1994). Learning Legal Skills (2nd Ed.), p. 150.

12
 Legal Aid Clinic and Professional Ethics

✓ Critical thinking

Critical thinking requires students not simply to accept what the law is,
or what the courts or textbooks say the law is, but they should be
encouragedto question the legal principle and solutions offered and to
think creativelyabout how they can assist clients to solve their problems
using both legal and other remedies.12

✓ Problem-solving

Problem-solving is the essence of legal practice. Students should be able

to identify issues, generate alternative solutions to the issues, and
developa plan of action. They should learn to be open to new information
and ideasand be flexible in their approach while dealing with problems.

✓ Drafting

In the law clinic, it is not unusual for students to be required to write

letters and draft documents such as pleadings, contracts, wills, lease
agreements, and other legal documents. Students need to acquire
accurate and good drafting techniques.

2. Client Intake and Consultation

Clients would want to deal with someone they trust and like. It is very
important that you prepare for the first and every subsequent consultation
with the client. Preparing thoroughly for the interview prevents poor
performance.13

In order to be properly prepared, make sure you obtain all the relevant
details and general nature of the problem such as the applicable legal
principles, which in turn enables you to give good advice. Make sure to
request your client to bring along the relevant documents to the
consultation. For example, if the matter concerns divorce, ask your client
to bring along documents such as the marriage certificate, the ante-nuptial

12
Palmer R & Crocker, A. (2007). Becoming a Lawyer: Fundamental skills for
Law Students (2nd Ed). Durban: LexisNexis.
13
De Klerk W. et al. (2006). Clinical Law in SA (2nd Ed.) Durban: LexisNexis, p.
57.

13
Unit 1 INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE

contract, birth certificates of minor children, if any. Furthermore, being

prepared allows you to be confident as a practitioner and this leads to a
purposeful and complete interview. Lastly, proper preparation enables the
client to give proper instructions.14

In addition, be sure to tidy up your office space, consider the seating

arrangements. Ascertain whether an interpreter will be needed, if there is a
language barrier. Do not allow yourself to be disrupted by for example,
telephone calls. Provide your client with refreshments and ensure that your
personal attire fits the occasion and consider the time available for the
interview.15

(i) How do you prepare for a consultation?

(ii) How may a legal practitioner conduct an interview with a
client?
Activity 2

14
Ibid, p. 57.
15
De Klerk W. (2006), p. 57.

14
 Legal Aid Clinic and Professional Ethics

(i) Make sure you obtain all the relevant details and general
nature of the problem such as the applicable legal
principles, request your client to bring along the relevant
documents to the consultation. For example, if the matter
Feedback
concerns divorce, ask your client to bring along documents
such as the marriage certificate, the ante-nuptial contract,
birth certificates of minor children, if any.

Tidy up your office space and consider the seating

arrangements. Further, ascertain whether an interpreter
will be needed, if there is a language barrier.

(ii) - Make the client feel at ease by using ice-breakers or

conversation starters, such as asking about their journey
etc,

- Allow the client to tell their story and listening attentively to

every detail. Once the client has narrated the whole story, the
practitioner should at this stage ask questions in order to get
more clarity on issues that were not clear from the client’s
narration of their issue/problem,

- Once the practitioner has all the facts, he/she should at this
stage lay out all the options available to the client, as well as
any legal principles that the client might need to be aware of.

A practitioner should never decide for the client; however, he/she

should endeavour to present the client with all the pros and cons of
any route that the client might elect to follow.

[Link] in Consultation
Stage one: The meet-and-greet

This stage is aimed at putting the client at ease. Most clients that you will
encounter at the Legal Aid Clinic are frustrated, angry or anxious. Further,
majority clients at the Legal Aid Clinic are mostly poor, uneducated or
unemployed people who have never consulted with a lawyer before and

15
Unit 1 INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE

they may feel intimidated and insecure. For this reason, you need to
establish genuineness and an atmosphere of mutual respect and show care.
You should also be punctual, avoid making clients wait and address clients
formally, for example such as “Mr.” or “Ms.”. When introducing yourself
to the client give your full name.16

Stage two: The listening stage

This stage requires listening and understanding the client’s emotions. You
should be able to identify intention or will. Listening is not a passive
exercise but rather an active one. Failure to listen creates a barrier in the
communication process between two people. Active listening enables the
client to deliver clear facts and instructions.17

Refrain yourself from interrupting while the client is speaking rather use
body language such as eye contact, nodding the head, gestures, body
positioning and tone of voice, further take notes, however restrict this to
basic facts such as names, times, dates and places. Lastly, show empathy
to your client’s feelings. Remember that empathy is not the same as
sympathy. Empathy shows that the practitioner acknowledges the distress
or other emotional state of the client, by using phrases such as “you felt..”
instead of “I know exactly how you feel, I have been in similar
situations...”18

Stage three: The questioning stage

Once you have listened the client narrate his/her story entirely, you should
have a general view of the issue. It is therefore, at this stage that the
practitioner should start asking questions, listen and evaluate responses,
and ask appropriate follow-up questions.

At this point, you should avoid biased questions because biased questions
will affect the validity of the responses. The interviewer’s objective is to
obtain valid and relevant evidentiary matter.19

Ask reflective questions to establish whether you have understood

accurately understood what the client the client said. Further, use questions
to control and move the consultation along, for example “shall we move
on to consider…?” or “what happened the next time you met Mr. X…?”20

16
De Klerk (2006), p. 58.
17
De Klerk (2006), p. 61.
18
De Klerk (2006), p. 60.
19
Ibid, p.61.
20
Ibid, p.61

16
 Legal Aid Clinic and Professional Ethics

You should be able to obtain all the relevant details of the client’s problem
by listening to the client using active and passive techniques. Despite this,
there might however be gaps in the facts. You must therefore inform the
client you are unable to give proper advice until you have completely
understood the facts.21

Stage four: The advising stage

It is very critical that you are able to advise your client, it is very important
that the Legal Practitioner possess the skill of advising a client. It follows
that you must therefore be knowledgeable about substantive and
procedural law.15 You should be able to give a competent opinion, which
is based on sufficient knowledge of the relevant facts and adequate
consideration of the applicable law.22

Do not, in your attempt to reassure the client, overstate the merits of the
client’s case. Further, avoid understating the client’s prospects in an
attempt to avoid later disappointment on the part of the client, because this
may lead the client to settle for a lesser amount than he/she would have
been awarded if the client had been correctly advised.23

[Link] Instructions
As a student in the shoes of a legal practitioner, it is not advisable to
tell the client what to do but rather present a list of options to the
client and help decide on the appropriate strategy.24 The client should be
permitted to play an active role in this process.

Once you have presented all the options to the client, lay out each option
separately and discuss the consequences of such an option or strategy,
before presenting the next option.

Be sure to insist that the client must not decide until you have presented
all the options to him/her, apprising the client of any repercussions of
making a particular decision. If there is bad news to convey, be brutally

21
Ibid, p. 62.
22
De Klerk (2006), p. 63.
23
Ibid, p. 63.
24
De Klerk (2006), p. 64.

17
Unit 1 INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE

honest, what this means is that, you should not try to protect the client
from the truth.

If your client invites you to decide which option to choose, you must
politely but firmly refuse to do so.25 It is the client’s right to make the
decision about his/her legal problem. The client will be the one to bear
the consequences of any decision that might be made.26

I. After the consultation

Once you and your client have arrived at some of form agreement
regarding the strategy to be taken, it is important that the client understands
the procedure to be followed.27 You should then provide your client with a
letter which summarizes the decisions made together and the agreed
strategy to be adopted.28

Give your client some tasks that he/she must complete that will assist in
the case, such as obtaining quotations or contacting possible witnesses.
Lastly, ensure that your client knows what to expect, and be clear about
this to your client. Ensure that your client understands that the resolution
to their problem requires a co-operative approach. For example, if you are
waiting for your client to provide you with quotations for damages in
anticipation of writing the initial letter of demand, you should indicate that
you are unable to proceed until the necessary documents have been
provided to you.29

3. Office and File Management

Record-keeping and file management are some of the most important tasks
in any office. If proper files are not kept or filed in a manner that facilitates
their retrieval when needed the aim of creating such records is defeated.30
Files should be stored in a place that is easily accessible, but
simultaneously safe from access by unauthorised people.31

25
De Klerk (2006), p.64.
26
Ibid, p. 64.
27
Ibid, p. 64.
28
Ibid, p. 64.
29
Ibid, p. 64.
30
De Klerk (2006), p. 73.
31
Ibid, p.73.

18
 Legal Aid Clinic and Professional Ethics

3.1. Case management and opening files

Client files may be kept either in paper (hard copy) or electronic format. It
is suggested that a hard copy paper file be opened for each client, and that
any electronic copy be kept as a backup for the electronic copy. The usual
format of a client file, a cardboard cover folded in three parts, is as follows:

Outside front cover: the outside front cover will contain the client’s name,
the student firm, the name and number of the student responsible for the
file, the name of the staff member supervising the student, a column for
diarised dates, and a block in which the prescription or statute of limitation
deadline for legal action of the file is entered.32 You may also include the
client’s contact details and a space for the file reference number. This
information should be printed or written in bold, legible style.

Inside front cover (Part A of the file): the inside front cover is a diary,
which contains sheets of paper divided into columns indicating date,
author, comment. Every time anybody does anything relating to the file,
this action must be noted in detail in the diary. This is to ensure that
anybody who picks the file up can immediately see what stage the matter
has reached, and what has to be done next.

Middle part of the file (Part B): the middle portion of the file is where all
pleadings and correspondences are pinned. This is correspondence written
by the students or supervisor, or received from client or any other person.
This correspondence must be in date order of receipt.

Inside back cover (Part C): the back cover is where is where all
statements taken from the client and possible witnesses are kept. All formal
reports obtained are also pinned to the inside front cover of the file.

When opening a file, it is important to obtain all relevant details, including

the client’s full names and identity number, residential and work addresses,
home and work telephone numbers, email address, occupation, addresses
of family members or friends, the name of the opposing attorney and the
type of case. It is also important to write the mandate down, in order to
confirm the mandate even if only briefly.33

32
Ibid, p. 77.
33
De Klerk, (2006), p. 77.

19
Unit 1 INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE

(i) Discuss the different filing systems?

(ii) Why is a proper record-keeping important in the law clinic?

Activity 3

(i) There are different ways of filing. In the law clinic, files may
be filed either in numerically, alphabetically or in a
combination or alpha-numeric way. The numerical system
uses the number allocated to each file as the file reference
Feedback number. Files are filed ina chronological manner according to
the file reference number. The alphabetical system uses the
client’s surname as the file reference, files are then filed in an
alphabetical manner according to the client’s surname. The
combination system or the alpha- numeric system uses both
the number allocated to the file and the client’s surname. a
system of cross-referencing is used, where thefile reference
number is listed next to the client’s name in an alphabetical
order in the file register.

(ii) Technically a part of file management, records management

specifically carries a level of importance that other files a law
office might have do not. Most records are guaranteed to
contain data pertaining to a client or case, and they are often
accessible only to certain individuals. Efficient management
of such documents is often vital to the continuance of a law
office becausethey can serve as proof of their actions.

3.2. File Registers

As soon as the new file has been opened, it must be recorded in the file
register and a file number should be allocated, which will be recorded
on the front cover of the file. This number will be used in all the
correspondences and pleadings generated by the clinic.

20
 Legal Aid Clinic and Professional Ethics

3.3. The Diary System

The diary system is used to regulate the work at the clinic. It is a system
that aims at feeding the practitioner or student the files that need attention,
and storing files that have already received required attention.34

The files that have been placed in the diary means that they are placed in
the filing cabinet, marked with a future date upon which they will be drawn
for further attention.

The diary system prevents the build-up of files in the practitioner’s office,
which can lead to important matters being overlooked. Files should be
diarised regularly at least once a month. When there is a risk of
prescription, the file should be diarised well in advance of the prescription
date to give you sufficient time to take the necessary steps in order to
prevent prescription.35

3.4. File management systems

Filing has been described as the “systematic way of storing or keeping
papers and documents so that they may be found when wanted”.36 The
following are general requirements of a good filing system:

✓ Files should be stored in a safe, dustproof place;

✓ Files should be easy to find;

✓ The filing system should be easy to find;

✓ The filing system should fit the needs of the practice;

✓ The filing system must be able to adapt to change;

✓ Closed files must be kept in an archive; and

✓ The filing system must not take up too much floor space.

34
Ibid, p. 80.
35
De Klerk, (2006), p. 80.
36
Wilken and Van der Westhuizen. (2002). “Practice Notes on Practice
Administration” in Van den Heever (ed) Law Society of South Africa, p. 9.

21
Unit 1 INTRODUCTION TO LEGAL AID CLINIC AND PRACTICE

There are different ways of filing. In the law clinic, files may be filed
eitherin numerically, alphabetically or in a combination or alpha-numeric
way.37
Where the alphabetical method is used, the files are indexed and stored
inalphabetical order, according to the client’s surname. This makes the
client’s file easy to find, since the only information needed to find the
fileis the client’s surname. However, confusion may result where there is
morethan one client using the same surname.

Where the combination or alpha-numeric method is used, the numerical

and the alphabetical systems are combined. Here, a system of cross-
referencing is used, where the file reference number is listed next to the
client’s name in an alphabetical order in the file register.

Where the numerical method is used, each file is allocated a number (file
reference number), which is then listed next to client’s name in a file
register. The file number is given to the client and is used in all
correspondences and pleadings. It is easier to use the numerical system
since it is simple rather than using the client’s name.38

Unit summary
In this unit you learned about what clinical legal education
entails. Further,you learned how to prepare for consultation and
the different stages of consultation.
It is important to note that a student in the capacity of a legal
Summary practitioner when consulting a client should first give the client
an opportunity to speak and describe his or her issue. Once the
problem has been identified, the client should then be given
choices about the plan of action to be followed to secure the
rights of the clients. Lastly, note that as a law student in the law
clinic, you should possess different skills such as problem
solving, negotiation, critical thinking, drafting and interview
skills.

37
De Klerk (2006), p. 74-75.
38
De Klerk, (2006), p. 75.

22
 Legal Aid Clinic and Professional Ethics

It is very important that a law office is organised and that files

are easy to locate. Client files may be kept either in paper (hard
copy) or electronic format. As soon as the new file has been
opened, it must be recorded in the file register and a file number
should be allocated, which will be recorded on the front cover
of the file.
The diary system is used to regulate the work at the clinic. It is
a system that aims at feeding the practitioner or student thefiles
that need attention.

References
De Klerk W. et al. (2006). Clinical Law in SA (2nd
Ed.) Durban:LexisNexis
Honore, A.M. ‘Social Justice’. (1968). in Summers R (ed)
References
Essays in LegalPhilosophy
Lee, S & Fox, M. (1994). Learning Legal Skills (2nd Ed.)
McQuoid-Mason, D.J. (1982). An Outline of Legal Aid in South
Africa.
Durban: Butterworth & co (SA) Ltd (Pty)
Mcquoid, D & Palmer, R. 2013. African Law
Clinicians’ Manual,University of Kwazulu-
Natal
Palmer R & Crocker, A. (2007). Becoming a Lawyer:
Fundamental skillsfor Law Students (2nd Ed). Durban:
LexisNexis.

23
Unit 2 LEGAL WRITING AND DRAFTING

Unit 2

LEGAL WRITING AND DRAFTING

Introduction
In this unit, you will learn about legal drafting. Note that legal drafting
begins at the stage when you start drafting the letter of demand. Use legal
jargon does not guarantee that you will get your message across.
Remember when writing legal letters that you are writing to a person who
is a lay person and possibly has no understanding of legalese. Therefore,
keep letters simple and to the point.

When you are drafting pleadings in any matter before the court, remember
to draft in conjunction with the rules of the relevant court. For example, in
the High Court, Rule 45 of the High Court is very important in legal
drafting.

Finally, you will learn about alternative dispute resolution. Litigation is not
always the best way to resolve a dispute. Litigation tends to be lengthy and
expensive.

Upon completion of this unit you should be able to:

▪ draft legal letters;

▪ write legal opinions;

Outcomes ▪ draft affidavits;

▪ explain how heads of arguments are prepared;

▪ conduct legal research;

Pete, S. et al. (2016). Civil Procedure: A Practical Guide 3rd Ed., Oxford
University Press, and Southern Africa.

Prescribed reading

24
 Legal Aid Clinic and Professional Ethics

De Klerk W et al. (2006). Clinical Law in South Africa (2nd Ed.) Durban:
LexisNexis.

Additional Reading

1. Drafting Legal Letters

As a law student or as a candidate attorney, writing a legal letter takes more
time than one can anticipate. In writing letters communicate effectively.
Remember why you are writing the letter. Some letters are written to
persuade, inform, record facts, make demands, enrage or calm the reader.
A letter should be written in a clear, concise language and be easy for the
reader to understand.39

The format in any letter should be arranged in a logical and easy way to
understand. There should be introductory phrases such as “we are pleased
to inform you…” or “we refer to the above matter and acknowledge receipt
of your letter dated…”40

Ensure that the letter conveys exactly what you want to convey. At the end,
sign your letter “Yours faithfully” rather than “Yours Sincerely” as the
former is more formal and is used by most practitioners. “Yours sincerely”
is less formal and more intimate.41

Letters should be kept simple by using plain language, avoid jargon and
elitism in your approach to language. Arrange the letter so that the most
important information is at the beginning and the rest is of the information
follows in descending importance. Have one idea per sentence and one idea
per paragraph.42

It is a good idea to include the name of the author and a direct telephone
number at the end, to make it easy for the reader to call the right person.43

39
De Klerk, (2006), p. 155.
40
Ibid, p. 155.
41
Ibid, p. 155.
42
Ibid, p. 155.
43
Ibid, p. 155.

25
Unit 2 LEGAL WRITING AND DRAFTING

Specific letters
Letters to the client

As a practitioner, you have an obligation, ethical and contractual obligation

to keep your client updated on the progress in their case. You should use
these letters to report to your client regularly. You may also use these
letters to ask for more information or further instructions or notify clients
of developments, such as a possible settlement offer or trial date.44

(i) Draft a letter of demand; you can invent your own

facts forthis exercise.

Activity 1

44
De Klerk, (2006), p. 161.

26
 Legal Aid Clinic and Professional Ethics

Feedback
An example of a letter of demand:

Ref:xxx
Date: xxxxxx

Mr. XXXXXXX
Erf XXXXXX
Street Name
Windhoek

Dear Sir,

Reference is made to the above-mentioned matter.

We act herein for and on behalf of Ms. Jane Smith, our client on whose
instructions we address this letter to you.

Our instructions are that the parties entered into a contract of sale on 05
June 2019 and the settlement agreement contained amongst other terms the
fact that you are to pay the purchase price in the amount of N$ 80 000.00
upon delivery of the goods.

Our instructions are that notwithstanding the settlement agreement being

made an order of court, you have since failed to make the required
payment.

We further hold instructions to place you on terms with regard to your

default on the payment of the purchase price in respect of the settlement
agreement and inform you that any further defaults will result in our client
applying to court for relief.

Non-payment constitutes breach of the contract. It is our client’s further

instructions that we demand full settlement of the outstanding amounts, to
be effected in the account details provided for below, on or before
XXXXX. Failure to heed to the above demand may result in the
commencement of legal proceedings against yourself without any further
notice and to which legal costs you may be liable for.

Our client’s banking details are as follows:

27
Unit 2 LEGAL WRITING AND DRAFTING

John Smith
555500002323
FNB
Windhoek Branch

Our clients rights remain fully reserved.

Yours sincerely

______________________
Mr John Doe
On behalf of Ms Jane Smith

Write to your client in a way that it is not necessary to explain what you
meant later. With this letter, you should be able to foster and maintain a
good relationship, and not frustrate, irritate or intimidate.45

Letters to the opponent

When writing a letter to your opponent, note that anything sent to the
opponent could be used against your client. In this vein, be careful about
the contents of the letter as well as the manner in which it has been written.
Do not write a letter in a rude or angry manner, as this may cause
embarrassment or lose your client’s case. Avoid the use of defamatory
statements.46

Letters of demand

A letter of demand is sent to a possible defendant based on your client’s

instructions. The letter of demand sets out the basis of client’s claim and
informs the defendant that your client will sue unless the defendant does
what the letter demands. Keep the letter simple. Do not use headings such
as “letter of demand or “notice”. A letter of demand is not meant to frighten
the reader into settling by using bullying tactics.

In the introductory paragraph, you should state that you act on behalf of
the particular client and that the letter is being addressed in terms of the

45
Ibid, p. 161.
46
Ibid, p.161.

28
 Legal Aid Clinic and Professional Ethics

client’s instructions, this is to establish that you have a mandate and that
your client has given the information contained in the letter.

State the facts in chronological order on which the client relies, be sure to
limit the facts to what is necessary to establish the case. Your client’s
credibility will be affected by inaccuracies in the letter. Once you have
done this, draw the conclusion in law from the facts and thereafter make a
demand. Explain the consequences of not complying with the demand.47

Remember the following tips when drafting your letter:

Do not use headings such as “letter of demand or “notice”. A letter of

demand is not meant to frighten the reader into settling by using bullying
tactics.

Ensure that the letter conveys exactly what you want to convey. At the end,
sign your letter “Yours faithfully” rather than “Yours Sincerely” as the
former is more formal and is used by most practitioners. “Yours sincerely”
is less formal and more intimate. The structure of a legal opinion is as
follows:48

Introduction:

Start your opinion with statements such as, ‘I have been asked to advise
on the quantum of the consultant’s damages in an MVA action…’. The
introduction introduces the question to be answered by the opinion. It is
not a recital of the facts.

Discussion:

Since an opinion is based on a particular set of facts and circumstances, it

is necessary to describe those facts and circumstances. The discussion
involves an analysis of the evidence to prove them. Describe how you
concluded. It is at this stage where the facts and the law are merged. Rely
on analogy, precedents in case law or presumptions.

47
De Klerk, p. 164-165.
48
Marnewick, (2012), p. 37-38.

29
Unit 2 LEGAL WRITING AND DRAFTING

Analysis:

At this stage the author has to point out the relevant legal principles and
how they apply to the set of facts and circumstances. The opinion has to be
persuasive

Conclusion

Express an opinion, at this stage; conclude however justify your

conclusions by referring to the facts and the law.

2. Legal opinions
A written opinion is the traditional way in which a lawyer gives advice.
When drafting a legal opinion, the lawyer follows an objective approach,
by telling the client what he or she really thinks of the facts and the law.49

Opinions are advisory in character; they answer some legal or factual

question. A legal opinion is not academic, although they may an academic
discussion of a point of law. Legal opinions deal with real cases, this
follows that the opinion is case specific and is shaped by the facts of the
case. When drafting a legal opinion, it requires a consideration of the legal
principles which are applicable to the facts of the case. Counsel, in writing
legal opinions, must state the true position as they see it. The client should
be clear of where they stand.50

3. Affidavits
An affidavit is a statement made under affirmation or oath (also called a
sworn statement), which is signed and affirmed, or sworn to, by the person
making the statement (known as the deponent) before a commissioner of
oaths. The oath or affirmation is administered because the information
contained in an affidavit constitutes evidence. An affidavit should be
drafted in the first person (from the deponent’s point of view). Once an
affidavit has been deposed to, a deponent cannot amend it using the rules
of court but must first seek leave from court to submit a further affidavit to
explain and correct the incorrect statement in the earlier affidavit.

There are three affidavits used in applications, namely, founding affidavit,

answering affidavit and replying affidavit. A founding affidavit

49
Marnewick, (2012), p. 36.
50
Ibid, p. 36.

30
 Legal Aid Clinic and Professional Ethics

accompanies the notice of motion and sets out the facts as well as the relief
sought by the applicant.

An answering affidavit must be delivered within 15 days after the

respondent has received the notice of motion, by the respondent. The
respondent in this affidavit must clearly state whether they admit, deny the
allegations of the relevant paragraphs in the founding affidavit.

The replying affidavit must be delivered within 10 days of service of the

answering affidavit on the applicant. The applicant is not permitted to add
new evidence in this affidavit, which is not in the founding affidavit.

5. Heads of Arguments and Pleadings

5.1. Heads of Argument
Heads of argument is the document which contains the argument for your
client. It summarises the main points of counsel’s argument and the
authorities you relied on in arguing for your client.51
Before preparing heads of argument, it is important to consider several
things. Firstly, what kind of litigation is one pursuing? Is it an action or an
application proceeding? This will determine how one treats evidence and
structures argument. Heads of argument should logical, structured, and
persuasive.
When drafting heads of argument start a brief introduction of what the
matter is about. This introduction provides the Judge with a picture of the
case and also directs him/her on what issues to focus on when perusing the
pleadings. The second paragraph deals with jurisdiction and why that
specific Court has authority to hear the case. After this, inform the Judge
of the issues on which the application turns. Proceed to set out a type of
index for the Judge by stating that the heads of argument will address for
example the disputed facts; relevant authority; application of the authority
to the facts and the conclusion. Evaluate evidence before moving on to the
law. Identify the best points in favour of your position and include them in
Heads.

51
Charrow, Erhadt and Charrow, p. 92-93.

31
Unit 2 LEGAL WRITING AND DRAFTING

In Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and
Another.52 Harms JA said: ‘There also appears to be a misconception about
the function and form of heads of argument. The Rules of this Court require
the filing of main heads of argument. The operative words are 'main',
'heads' and 'argument'. 'Main' refers to the most important part of the
argument. 'Heads' means 'points', not a dissertation. Lastly, 'argument'
involves a process of reasoning which must be set out in the heads. A
recital of the facts and quotations from authorities do not amount to
argument.

5.2. Pleadings
Plea and special plea
The plea contains the defendant’s defence to the claim. There are two types
of plea:
✓ Plea on the merits
✓ Special plea
Plea on the merits deals with the substance of the plaintiff’s claim, and
attacks the validity of the cause of action regarding the facts.
Special plea is a legal objection to some aspect of the plaintiff’s claim. It
attacks the plaintiff’s case before the merits are considered. After raising
the special plea, the defendant must still plead over the merits; this is an
alternative in case the special plea does not succeed. Rule 46 of the High
Court makes provision for a plea, whilst Rule 19 of the Magistrates Court
makes provision for a plea.53

Pleading over the merits: kinds of plea-

The plaintiff’s particulars of claim must contain allegations of facts (they
are allegation because they have not been tested in court). When
responding to the Plaintiff’s allegation, the defendant may respond in the
following ways:
✓ Admit the allegation
✓ Deny the allegation
✓ Confess and avoid the allegation (avoid the legal implication the
plaintiff would like the court to draw from the fact)

52
1998 (3) SA 938 (SCA), p. 955 B-F.
53
Pete, S et al, p. 211.

32
 Legal Aid Clinic and Professional Ethics

✓ Make no admission, but put the plaintiff to the proof thereof.54

A special plea raises a special defence and is directed at an underlying
problem in the plaintiff’s case, rather than at the merits of the case. It either
destroys or postpones the operation of the plaintiff’s cause of action.
There are two types of special pleas: dilatory pleas and pleas in abatement.
Replication
A replication is the plaintiff’s response to defendant’s plea. It is only
necessary if the defendant has raised new averments in the plea. The
plaintiff may only plead such new facts as are called for by the defendant’s
plea. The plaintiff must not introduce new cause of action.
The replication is provided for in Rule 47 of the High Court and in Rule
21 of Magistrates Court. Where the plaintiff does not within the specified
period deliver a reply, he shall be taken to have denied all the allegations
of fact contained in the plea.
Exceptions
An exception is legal objection to the pleading, the objection being that the
pleading is not legally valid for its purpose. The defect should be apparent
ex facie the pleading is then said to be expiable. If the exception is brought
where the pleading is not apparent ex facie, the exception will be bad in
law. It may result in the dismissal or setting aside of the claim or defence.55
There are two grounds for bringing an exception, firstly, a pleading does
not disclose a cause of action or defence (Rule 57(2) of the High Court).
Secondly, the pleading is vague and embarrassing (Rule 57(6) in the High
Court).
A pleading is vague and embarrassing if capable of more than one
meaning- ambiguous. Rule 17 and 19(14) of Magistrate Court makes
provision for an exception to a plea.

6. Alternative Dispute Resolution (ADR)

It is the professional duty of every lawyer to advise the client on the best
possible method to resolve their disputes; this can be done by weighing up

54
Pete, S et al, p. 204.
55
Ibid, p. 229.

33
Unit 2 LEGAL WRITING AND DRAFTING

the advantages and disadvantages of the alternatives. Many people prefer

not to go the litigation route for reasons such as, litigation does not always
deliver a satisfactory result. The methods of alternative dispute resolution
are:56arbitration, determination by an independent third party, mediation
and negotiation;

6.1. Arbitration
Arbitration is a procedure by which a dispute is determined without
recourse to the courts. Arbitration may be compulsory or by way of an
agreement or contract. 57 The arbitrator’s decision is referred to as an
award. The arbitrator’s award is final and not subject to appeal; however,
this does not exclude review based on an irregularity. The award may be
made an order of court for purposes of enforcement.
If arbitration arises by way of a clause in a contract, the jurisdiction of the
arbitrator is limited by the terms of the arbitration agreement. Arbitration
is quick and less expensive than litigation. The disadvantage of arbitration
is that once the process begins, the parties no longer control the
proceedings, the arbitrator does.
Arbitration is suitable for commercial disputes such as building and
construction contracts and maritime claims. However, it is not limited to
these cases. Some cases cannot be resolved arbitration such as matters
involving the status of a person or company such as divorce, paternity suits,
sequestration and liquidation applications and applications rehabilitation.58

6.2. Determination by an independent third party

A dispute may be submitted to an independent third party for
determination, such as the Master of the High Court or the Registrar of the
High Court. The dispute may be submitted in two ways. Firstly, the expert
may be allowed to gather the facts and materials upon which the issue
between the parties is to be resolved independently of the parties or the
expert may be restricted to the information placed before him or her by the
parties.

The advantages of this method are that it is quick and inexpensive and
confidentiality can be maintained. The disadvantages of this method are

56
Marnewick. (2012), p. 46.
57
Marnewick, (2012) p. 46.
58
Ibid, p. 47.

34
 Legal Aid Clinic and Professional Ethics

that the determination is not subject to appeal but may be taken on review
on limited grounds.

The parties may agree that the determination will be binding and final. If
the parties fail to do this, the expert’s determination will be advisory only.59

The following cases may be referred to an independent third party for

determination:60

✓ Valuation disputes can be referred to a sworn valuer for a binding

valuation;

✓ Tax issues may be referred to the Inland Revenue for rulings.

✓ Disputes relating to the administration of insolvent or deceased
estates can be referred to the Master of the High Court for a
binding ruling.

6.3. Mediation
Mediation is similar to negotiation but it takes place under the supervision
or guidance of the mediator. The purpose is to seek agreement on a possible
solution for the problem.61

The mediator is expected to be neutral and assist the parties to find

mutually acceptable solutions to end their dispute. The mediator does not
make decisions or give rulings. The role of the mediator is that of a
facilitator who structures the discussion.

The advantages of mediation are that the parties participate directly in the
process and the final decision rests with them. Mediation is quick and
inexpensive, flexible and informal. Further, privacy and confidentiality can
be maintained.62

59
Marnewick, (2012), p. 47.
60
Ibid, p. 47.
61
Ibid, p. 49.
62
Marnewick, (2012), p. 49.

35
Unit 2 LEGAL WRITING AND DRAFTING

The disadvantages of mediation are that it needs the co-operation of both

parties. It is not available in cases such as sequestration, liquidation or
rehabilitation.63

6.4. Negotiation
A dispute can be settled by the conclusion of a contract called a
compromise or settlement. A compromise is a contract by which an
existing or potential dispute is resolved by the creation of new rights and
obligations.64

A compromise is usually reached by the process known as “negotiation”.

Negotiation requires negotiation skills. Note that all cases under
negotiation involve a dispute. Sometimes a client may require the
assistance of a lawyer to negotiate terms of a new agreement.65

If the negotiations are successful the parties can benefit in so many ways.
A compromise is quick and cheap and it can achieve certainty and finality
while avoiding the risk of uncertain outcomes.

Unit summary
In this unit you learned legal writing. Drafting involves not drafting
pleadings but legal letters such letters of demand as well. The format in any
letter should be arranged in a logical and easy way to understand.
Remember that sometimes clients may also require you to write legal
Summary opinions, Opinions are advisory in character; they answer some legal or
factual question.
You have learned about affidavits which are used in court proceedings.
There are more than one type of affidavits used in the litigation process.
You now understand the different pleadings or documents filed in court
in any matter before court, such as the plea, special, replication and
exceptions. The rules of court provide guidelines for drafting pleadings.

63
Ibid, p. 49.
64
Ibid, p. 49.
65
Ibid, p. 49.

36
 Legal Aid Clinic and Professional Ethics

Lastly, your attention has been drawn to alternative dispute resolution.

It isnot always beneficial to go to court, as this can be costly and lengthy
process for the client. Hence the need to find other means of resolving
disputes.

References
Charrow, V.R., Erhardt, M.K & Charrow, R.P. (2007). Clear
and Effective Legal Writing (4th Ed.). New York: Aspen
Publishers.
References
De Klerk W et al. (2006). Clinical Law in South Africa
(2nd Ed.) Durban: LexisNexis.
Pete, S et al. (2016). Civil Procedure: A Practical Guide
(3rd Ed).
Oxford University Press, and Southern Africa.

37
Unit 3 TRIAL SKILLS

Unit 3

TRIAL SKILLS
Introduction
You will learn some trial skills in this unit, which will have you look at
opening statements, evidence-in-chief, cross-examination, re-
examination, closing arguments and finally judgements, executions and
appeals.

Trial advocacy is a craft which has to be learned. The conduct of counsel

in and around the courtroom is regulated by certain protocols, the ethics of
the legal profession and some old customs.66

Upon completion of this unit you should be able to:

▪ describe trial advocacy;

▪ describe what is opening statement;

Outcomes ▪ discuss examination-in-chief;

▪ describe cross-examination;

▪ discuss re-examination;

De Klerk W. et al. (2006). Clinical Law in SA (2nd Ed.) Durban:

LexisNexis

Prescribed reading
Marnewick, L.G.92012). Litigation Skills for South African Lawyers
(3RD Ed.) Durban: LexisNexis (Pty) Ltd.
Pretorius, J.P. (1997) Cross Examination in South African Law.
Durban: Butterworths
Additional reading

66
Marnewick, (2012), p. 347.

38
 Legal Aid Clinic and Professional Ethics

1. Opening statement
Counsel for the plaintiff has an opportunity to address the court before
leading any evidence; the same opportunity is afforded to the defendant
after the plaintiff’s case has been closed and before defendant’s counsel
leads any evidence for the defendant. 67 Opening statements are often
underrated and neglected in the litigation process. Opening statements are
crucial in the litigation process since Judges in a matter before court are
unlikely to forget their first impressions of the case, notwithstanding that
Judges are trained not to make up their minds before all the evidence and
argument has been considered. Opening statements play an important role
in the process of persuasion.68

The purpose of the opening address is to explain to the Judge what the case
is about to enable him or her to follow the evidence. In order to persuade
the Judge to return findings of fact favourable to your client, you have to
put the judge in the picture, so that the significance of each item of
evidence will be apparent to the judge when you produce the evidence.69

The opening statement is not an argument. It is an outline of the facts to be

proved. The emphasis being on brevity, it should not be a detailed
discussion. 70 The opening statement for the plaintiff or the prosecution
differs from that of the defendant or defence in minor aspects only – the
same principles apply to both.71

Opening statements in a criminal case

State the criminal charge and where the onus of proof lies as well as the
standard of proof required. Further, state the elements for the offence
charged and briefly state the facts. Counsel should then state the anticipated
defence and the facts disproving it or casting doubt upon it and name
witnesses to be called. Counsel should briefly summarise the evidence to
be given by each witness and tell the court what admissions have been
made or are to be made, tell the court hat exhibits will be produced by

67
Marnewick, (2012), p. 287.
68
Ibid, p. 287.
69
Ibid, p. 287.
70
Ibid, p. 287.
71
Ibid, p. 287.

39
Unit 3 TRIAL SKILLS

consent or through a witness. Lastly counsel should then call the first
witness.72

The same principles apply to the accused’s opening address, except that by
the time the prosecution closes its case, defence counsel will have to put
the accused’s version to witnesses when he or she cross-examined them.73

Opening statements for the defence

Counsel should tell the court that he/she intends to call witnesses and
explain what defence is and isolate the issue. Acknowledge the onus and
standard of proof and briefly state the facts. The witnesses to be called
should be names and briefly summarise what each witness have to say.
Lastly, counsel should call the first witness.

(a) What is the purpose of an opening statement?

(b) Imagine you were an attorney in a criminal trial what would

Activity 1 you say as part of your opening statement?

72
Marnewick, (2012), p. 290-292.
73
Ibid, p. 290-292.

40
 Legal Aid Clinic and Professional Ethics

(a) The purpose of the opening address is to explain to the Judge

what the case is about to enable him or her to follow the
evidence. In order to persuade the Judge to return findings of
fact favourable to your client, you have to put the judge in the
Feedback
picture, so that the significance of each item of evidence will be
apparent to the judge when you produce the evidence.

(b) The prosecution will call four witnesses to the stand. We will
call Mr. Smith who will testify that he was at his residence
when the defendant attacked him without provocation while
he sat with his family in the tavern. We will call the ER nurse
who will testify that the victim sustained four fractured ribs
and a broken nose as a result of this unprovoked attack. We
will also call the defendant’s roommate who will testify that the
defendant bragged about what he did after he returned home
that evening. [you will need to summarize for yourself what
each witness is going to testify to. A lengthier opening
statement will provide a lot of details as to what each witness
will say.]

Anticipate the defense theories: [A good prosecution opening

statement will try to anticipate the points that the defense will
raise in their opening. Remember that the prosecution has to
give their opening statement first so you will have to guess a
little as to what the defense will say.] Often times a prosecutor
will state something along the lines of “Your worship/honour etc,
the defense may argue that the defendant acted in self-defense,
however, the witnesses will all state that it was the defendant who
approached the victim and began attacking him.” Or the
prosecution will state: “Ladies and gentlemen, the defendant may
argue that the defendant was temporarily insane at the time of the
fight. However, we will show that the defendant was merely
intoxicated when the fight broke out, and not of the witnesses will
describe unusual behavior.”

CONCLUSION: At the conclusion of the case we would ask you to find

the defendant guilty, that the state has not met its burden of proof. Thank
you.

Opening statement in civil cases

41
Unit 3 TRIAL SKILLS

Briefly describe the matter before court, for example, “may it please the
court, my Lord, this is an action for damages arising from a motor
collision.” If necessary, refer the judge to the pages and paragraphs in the
pleadings where the allegations are set out in detail. If the issues were
reduced at the case planning conference, refer the judge to the paragraphs
in the pleadings and in the minute of the conference. Identify the witnesses
to be called and indicate their role in the case. If necessary, elaborate a little
to inform the judge what the witness will say.

Deal with exhibitions one by one. Where the matter is complex, with
bundles of documents you have to take the judge through the bundles step
by step to allow the judge to absorb the basic details of the evidence.

The evidence of the main witness should be outlined briefly regarding the
main issue.

2. Examination-in-chief
Every party in a trial has the right to call witnesses to give evidence on the
questions before court.74

In court proceedings, the evidence given by a witness in response to the

initial questioning by the party which called the witness to testify is called
“evidence in chief” and the process of adducing that evidence is called
“examination in chief”.75 All court cases are based on facts. In some cases,
evidence is placed before the court in the form of documents, however in
most cases; the evidence is placed before the court by way of admissions
or oral evidence.76 This is where witnesses come in.

The witness appears in person and presents evidence by way of telling a

story. The role of counsel is to ask the witness a series of questions. By
asking questions, counsel is said to be ‘examining’ the witness.77 The skill
of examination in chief requires sound knowledge of the rules of evidence,
a firm grasp of the facts and the law pertaining to the case and the ability
to extract all the material evidence from the witness without asking leading
questions.78

Examination-in-chief is the most important phase of the trial; each party

puts forward their own version of the facts and answers their opponent’s

74
Marnewick, (2012), p. 290-292.
75
Ibid, p. 303.
76
De Klerk, (2006), p. 234.
77
Ibid, p. 234.
78
Marnewick, (2012), p. 303.

42
 Legal Aid Clinic and Professional Ethics

version.79 Note that there are certain restrictions pertaining to examination

in chief. The evidence must be relevant in its content, material in its
substance and admissible in its form.80

(a) Why is examination-in-chief important in trial?

(b) How would you conduct an examination-in-chief?

Activity 2

79
De Klerk, (2006), p. 235.
80
Marnewick, (2012), p. 303.

43
Unit 3 TRIAL SKILLS

(a) Examination-in-chief is the most important phase of the

trial; each party puts forward their own version of the facts
and answers their opponent’s version.
Feedback
(b) It is important during evidence-in-chief that the jury or
magistrates hear the witness's account, not an account that is
moulded by the advocate who is asking the questions
(conducting the examination-in-chief).

For this reason neither the prosecution nor the defence can
‘lead’ a witness through the disputed parts of their evidence-
in-chief, i.e. they cannot ask questions which feed or suggest
the answer they want, or which assume facts which are not yet
in evidence before the court.

An example of a leading question would be to say to you as a

prosecution witness (in a case where it is disputed that the
defendant threw a punch), “did he punch you?” or worse, “he
punched you didn’t he?” These are leading questions because
they suggest or give the answer. A way of asking you the
question appropriately would be to ask, “What happened when
you saw the defendant?”

An example of leading a witness by assuming a fact which is

not yet in evidence, would be to ask a witness to describe the
man they saw before the witness has even mentioned seeing a
man. The correct non-leading approach would be to ask them
a questions to set the scene, e.g. ‘And what could you see from
where you were standing?” Once they have mentioned seeing
a man then the next questions can elicit his description.

The greater the dispute, the more important it is not to lead the witness.
For example, if a case is hotly disputed over the colour of a car leaving
the scene of a crime (e.g. where it is vital for the prosecution to show that
it was a yellow car which was the colour of the car driven by the
defendant), it would be wholly wrong for the prosecutor to feed the
colour to the witness in the question by asking, “Was the car yellow?” or
“Did you see a yellow car?” After the witness has recalled seeing a car,
the correct question would be, “What colour was the car?”

Counsel is not allowed to ask leading questions but should allow the
witness to tell the story, to provide important details, to give difficult

44
 Legal Aid Clinic and Professional Ethics

explanations, without counsel suggesting answers.81 This is because facts

have to be provided by the witnesses, not the lawyers and the value of the
evidence depends on the way the witness behaves while giving the
evidence. The evidence must be relevant to the issue before the court. Note
that hearsay evidence, opinion evidence, character evidence and similar
fact evidence is not admissible, however there are exceptions to these
exclusionary rules. Evidence may be excluded at the discretion of the
court.82

The following is the structure for evidence-in-chief:83

✓ introduce the witness

✓ qualify the witness

✓ deal with pre-arranged topics;

✓ lead the evidence on each topic in chronological order;

✓ complete the main evidence of the witness; and

✓ if necessary, deal with the other side’s version.

Plan your questions so that you will achieve your goals and objectives by
concentrating on what the witness saw, heard, smelled, felt or tasted at the
time of the events under consideration.84

3. Cross-examination
Cross-examination is the procedural right to question witnesses of the
opposition.85 Every party to a trial has the right to question witnesses called
by any other party. 86 Cross-examination has been described as the
“primary and essential means of testing evidence for accuracy,

81
Marnewick, (2012), p. 303.
82
Ibid, p. 303.
83
Ibid, p. 303.
84
Marnewick, (2012), p. 307.
85
De Klerk, (2006), p. 238.
86
Marnewick, (2012), p. 325.

45
Unit 3 TRIAL SKILLS

completeness and reliability.”87 The opposing witness is cross-examined in

order to make your own case better. You also have to put your own version
of disputed facts to opposition witnesses so that they may comment on
them.88

Cross-examination may also be said to be a tool of persuasion, it is used in

an effort to have your own side’s theory accepted and the other side’s
theory rejected.89

(a) Imagine you are an attorney conducting cross-examination,

what sort of questions would you ask as part of your cross-
examination?
Activity 3

Your questions should be tight and limited to one fact per question,
don’t use the “Isn’t it true that…?” format. Instead, you should testify.
For example, don’t say “Isn’t it true that the light was red?”, “Isn’t it
true that you were going 95 miles per hour?”, etc. Rather, say, “The
Feedback
light was red.”, “You were going 95 miles per hour.”, and so forth.
In summary, make your “statement”, get your “yes” or “no” answer
and move on. Sometimes the best cross-examination, even of a critical
witness who just completed a lengthy direct examination, consists of
only a question or two. For example, consider a case in which the other
side has an expert, but you don’t for whatever reason (and you are not
having one does not hurt you).

Cross-examination has the following purposes:90

✓ To elicit facts favourable to the client’s case.91
✓ To undermine the value of the evidence against one’s client;92
✓ To test or discredit the reliability of the evidence-in-chief of

87
Pretorius, J.P. (1997) Cross Examination in South African Law. Durban:
Butterworths, p. 79.
88
Marnewick, (2012), p. 325.
89
Ibid, p. 325.
90
Ibid, p. 325.
91
De Klerk (2006), p. 239.
92
Ibid, p. 239.

46
 Legal Aid Clinic and Professional Ethics

theopposing witness;
✓ To destroy or undermine the credibility of the opposing
witnesswho is giving evidence;
✓ To put your version of disputed facts to the other side’s witness
✓ To “parade” your case.

Be brief in your cross-examination. When cross-examining, ask only

leading questions, use short questions using plain language. Do not ask a
question if you do not know the answer, listen to the answer given by the
witness. Further, do not argue with the witness. Remember, do not allow
the witness to repeat evidence adverse to your case. Avoid asking a
question too many times.93

Facts may be suggested to the witness in such a way that the events are put
in a different light to establish a version that is favourable to the cross-
examiner’s side. Suggestive questions can be asked forcefully or gently,
depending on the strength of the underlying material.94

4. Re-examination
Re-examination is an opportunity for counsel to ask his/her own witness
further questions after opposing counsel has cross-examined. 95 Re-
examination is done to:96

✓ To repair the damage inflicted on your case during cross-

examination of your witness;

✓ To rehabilitate a witness whose integrity or credibility has been

adversely affected by cross-examination;

✓ To clarify evidence which has been muddled by cross-

examination; and

✓ To answer new evidence elicited during cross-examination.

If none of these purposes will be served, then there is no need for re-
examination. There are restrictions on re-examination, the witness may
only be re-examined on matters arising from cross-examination, leading

93
Marnewick, (2012), p. 336.
94
Ibid, p. 336.
95
De Klerk, (2006), p. 250.
96
Marnewick, (2012), p. 347.

47
Unit 3 TRIAL SKILLS

questions are not allowed; you are subject to the same rules regarding the
form of the questions as you are when leading the evidence-in-chief.
Lastly, re-examination is not a mere repetition of the evidence-in-chief.97

Unit summary
You have learned about opening statements, examination-in-chief, cross-
examination and re-examination. Opening statements play an important
role in the process of persuasion. Examination-in-chief is the most
important phase of the trial, each party puts forward their own versionof
Summary the facts and answers their opponent’s version. Cross-examination is the
procedural right to question witnesses of the opposition. Re-examination
is an opportunity for counsel to ask his/her own witness further
questions

References
Marnewick, L.G. (2012). Litigation Skills for South African
Lawyers (3rdEd.) Durban: LexisNexis (Pty) Ltd.
Pretorius, J.P. (1997) Cross Examination in South African Law.
References
Durban:Butterworths.
De Klerk W et al. (2006). Clinical Law in SA (2nd Ed.)
Durban:LexisNexis.

97
Marnewick, (2012), p. 353.

48
 Legal Aid Clinic and Professional Ethics

Unit 4

ACTION AND APPLICATION

PROCEEDINGS
Introduction
Civil trials may take two forms: action or application. In the High Court,
the action procedure is provided for in Rule 65. In the Magistrates Court,
the procedure can be inferred from Rule 6. Once it has been established
that the party has legal remedy, the attorney must decide whether to enforce
that remedy by way of action proceedings or by way of applications.

If the plaintiff elects to approach the court action procedure, the

proceedings will commence with summons accompanied by the particulars
of claim. In the action procedure, there is a pleading stage, which is more
like a paper war. There are pre-trial procedures, the trial, and the
judgement, interest, and costs. Note that there is oral evidence that is
brought before court to determine the claim.

The basic difference between the trial or action procedure and the
application procedure is that trial or oral evidence (also referred to as viva
voce evidence) is heard by the court, whereas in application proceedings
the evidence is placed before the court in the form of written statements,
signed and sworn to by the witnesses.

You will be dealing with the procedure in action proceedings. You will
also be introduced to the various types of applications. Remember that you
learned about these applications in Civil Procedure. Your attention will
also be drawn to provisional sentence, sequestration, and edictal citation.

Upon completion of this unit you should be able to:

49
Unit 4 ACTION AND APPLICATION PROCEEDINGS

▪ discuss the procedure in action proceedings;

▪ discuss the procedure in application procedures and the types of

applications;
Outcomes
▪ explain discovery and why parties need to discover evidence;

▪ describe prescription;

▪ discuss trial;

Pete, S et al. (2016). Civil Procedure: A Practical Guide (3rd Ed). Cape
Town: Oxford University Press, Southern Africa.

Prescribed reading

Paterson T.J.M. (2005) Eckard’s Principles of Civil Procedure in the

Magistrate’s Court. Juta & Co, Cape Town, 5th Ed.

Additional reading

1. Action Procedure
The parties are called plaintiff and defendant. Action proceedings are
characterized by a clear separation between the pleadings stage and the trial
and evidence stage. The pleadings consist of written statements made by
and delivered between the parties, setting out the material facts on which
the parties rely in support of their claim or defence. Only material facts are
set out in the in the pleadings. This means that the main allegations on
which the claim is based are set out by the plaintiff, and the defendant sets
out the main allegations on which the defence is based.98

Actions deal with substantial factual disputes and commences with the
issuing of summons by the plaintiff. Further pleadings are exchanged by
the parties such as the defendant’s plea and counterclaim, plaintiff’s plea
to defendant’s counterclaim.

98
Pete, S. et al. (2016). Civil Procedure: A Practical Guide (3rd Ed). Cape
Town: Oxford University Press, Southern Africa, p.176.

50
 Legal Aid Clinic and Professional Ethics

Once the process of pleadings has been completed, the action is set down
for trial, a stage called “preparation for trial” follows. Certain preparatory
steps are taken such as discovery of documents and expert notices. Action
proceedings are heard in what are usually called trial courts.

2. Application Procedure
In application proceedings (also called motion proceedings) the entire
procedure is paper-based (i.e. no leading of witnesses). There is no
separation between the pleadings stage and the evidence stage. The
evidence in application proceedings is not oral but in writing, in the form
of affidavits. Further documents supporting the evidence contained in the
affidavits may be attached to the affidavits as annexures. The affidavits
with their annexures are then attached to the document that sets out the
order sought from the court (notice of motion).137
Some applications are opposed, if the application is opposed, it is set down
for hearing. The application proceeding is reserved for those matters in
which the court is able to reach a decision on the documents put before
it.138
In application proceeding, there is no substantial factual dispute that it
cannot be dealt with “on the papers” before the court. In terms of Rule 65
of the High Court, every application must be brought on notice of motion
thereby giving notice to the other party. These applications are called on
notice applications. However, there are circumstances where applications
are brought without notice to the other party – these are called ex parte
applications. Ex parte applications are often brought on an urgent basis.

Instances where the use of application is mandatory

✓ Review application
✓ Rescission of judgment
✓ Interlocutory applications
✓ Interdicts
✓ Joinder of parties
✓ Consolidation of actions

51
Unit 4 ACTION AND APPLICATION PROCEEDINGS

(a) Discuss provisional sentence

(b) What is an urgent application?

Activity 1

(a) Provisional sentence is an unusual and extraordinary

remedy. It may be described as a hybrid, containing
elements of both the action and application procedures.
A provisional sentence action is commenced by a
Feedback provisional summons but the pleadings at the provisional
stage are in the form of affidavits.

(b) Urgent applications are usually brought on the basis that

the relief needed is so urgent that the ordinary provisions
of the court rules in relation to time and notice cannot be
complied with. The applicant must inform the court fully
of the reasons why the application is urgent and why he
cannot wait to obtain relief by making application in the
normal way.

2.1. Types of applications

- Urgent applications:

Urgent applications are usually brought on the basis that the relief needed
is so urgent that the ordinary provisions of the court rules in relation to time
and notice cannot be complied with. The applicant must inform the court
fully of the reasons why the application is urgent and why he cannot wait
to obtain relief by making application in the normal way.

An applicant launching an urgent application may formulate his own time

periods for the respondent to file an answering affidavit which the
respondent is obliged to obey until the hearing of the application.

It is important to note that an applicant cannot create his own urgency. A

certificate of urgency must be attached to the papers. Rule 73 of the High
Court rules provides for urgent applications.

- Provisional sentence:

52
 Legal Aid Clinic and Professional Ethics

Proceedings are instituted by way of summons calling upon a party to pay

the amount claimed or failing such payment to appear personally on a day
named in the summons not being less than 7 days after the service upon
him of such summons, to admit or deny his liability. Provisional sentence
is an unusual and extraordinary remedy. It may be described as a hybrid,
containing elements of both the action and application procedures. A
provisional sentence action is commenced by a provisional summons but
the pleadings at the provisional stage are in the form of affidavits.

Provisional sentence procedure may only be utilised for actions based on a

liquid document. If the defendant chooses to deny liability, he or she is
required to deliver an affidavit setting forth the grounds of his defence to
the claim. The defendant is also required to deny his signature on the liquid
document, if the defendant denies liability and delivers an affidavit the
plaintiff is required to deliver a replying affidavit.

The court will then decide the defendant’s liability on the affidavits only.
No oral evidence may be tendered or heard during the provisional stage
unless the defendant denies the authenticity of the signature. If authenticity
of the signature is in dispute, then oral evidence may be heard on that
respect.

If the court refuses to grant the provisional sentence, it may mean the end
of the action. If the court grants provisional sentence, the defendant is
required to satisfy judgement before being permitted to defend the matter.

The defendant has 60 days to satisfy the judgement and give notice of his
intention to enter upon the principal case.

Requirements for the grant of provisional sentence:

✓ The plaintiff’s claim must be based on a liquid document.

✓ The plaintiff must satisfy the court as to the onus upon him or her.

✓ The defendant is unable to satisfy the court in respect of the onus

upon him.

- Sequestration

In sequestration and winding up proceedings the applicant relies on an act

of insolvency or inability to pay debts and is able to produce documentary

53
Unit 4 ACTION AND APPLICATION PROCEEDINGS

evidence of such inability, for example, a letter or balance sheet, the

application may be brought ex parte without notice.

- Edictal citation

Service outside the borders of the Republic must be effected by way of

edictal citation in the district magistrates or regional magistrates and High
Court.81 Edictal citation is provided for in Rule 12 of the Rules of the High
Court.

Note that the Court will only grant leave for edictal citation, the applicant
must set out the nature and extent of his or her claim, grounds upon which
it is based and on which the court has jurisdiction to entertain the claim and
the manner of service the court is asked to authorise.82

3. Prescription
Prescription refers to the liberation of a debtor, it is mere bar which the
debtor may oppose to the creditor who has neglected to exercise his/her
rights, or procured them to be acknowledged during the time prescribed by
law. This is what is known as extinctive prescription. It is important to
verify whether or not a matter has prescribed before instituting any claims
to avoid wasting the court’s time as well as wasting the client time and
money.

According to Section 12 of the Prescription Act 68 of 1969, prescription

begins to run not necessarily when the debt arises, but only when it
becomes due (see Shiimi v City of Windhoek (I 1610/2016) [2017]
NAHCMD 288 (27 September 2017). Section 11 of the Prescription Act
provides for four extinctive prescriptive periods:

- 30 years in respect of:

✓ Mortgage bond

✓ Judgement debt

✓ Any debt in respect of any taxation

✓ Certain debts owed to the State in respect of any share, profits,
royalties etc.

54
 Legal Aid Clinic and Professional Ethics

(a) What is prescription?

(b) Discuss why it is important to ascertain whether a matter has
prescribed before instituting any proceedings.
Activity 2

(a) Prescription refers to the liberation of a debtor, it is mere bar

which the debtor may oppose to the creditor who has neglected
to exercise his/her rights, or procured them to be
acknowledged during the time prescribed by law. This is what
Feedback
is known as extinctive prescription.

(b) It is important to verify whether or not a matter has prescribed

before instituting any claims to avoid wasting the court’s time
as well as wasting the client time and money

- 15 years in respect of:

✓ Any debt owed to the State

✓ Any debt arising out of a loan of money or sale or lease of land
bythe State to a debtor.

- 6 years in respect of any debt arising from a negotiable

instrumentsuch as a cheque or from a notarial contract.
- 3 years in respect of any other debt, except where stipulated
otherwise by another Act of Parliament.

Prescription runs against a debtor only if he is aware of the facts that

give rise to the debt and the identity of the creditor. The general
principle is if you claim it, you must raise it. The courts will not take
notice of prescription “meru motu”; the parties must raise it on the

55
Unit 4 ACTION AND APPLICATION PROCEEDINGS

papers filed of record. Study sections 13, 14 and 15 of the

Prescription Act 68 of 1969.

4. Discovery
Discovery is meant to provide the evidence that supports the material
allegations in the pleadings. It also allows and facilitates settlement
discussions. It ensures that: there is no trial by ambush. Parties, through
discovery, have the opportunity to inspect documents before such
document is used at trial. It prevents parties from being surprised by all
sorts of “new” evidence at the trial.99

Rule 28 of the High Court provides for discovery. In the Magistrates court,
discovery is provided for by rule 23 and 24. It is a procedure that allows
both the plaintiff and the defendant to share all supporting documents or
evidence that will prove or disprove their claim or defence.140

In the Magistrates court, provision for discovery is made in Rule 23, 24

and 26. Rule 23 stipulates that discovery has to be made after close of
pleadings but not later than 14 days before the trial. Either party may
deliver a notice to the other party calling on him or her to deliver a schedule
specifying the books and documents in his possession or under his or her
control which relate to the action and which he intends to use in the action
or which tend to prove or disprove either party’s case.141

5. Trial
At the trial, the rule of practice is that he who alleges (usually the plaintiff)
has the duty to begin. The burden of proof in civil matters is on a
preponderance of probabilities. Each party presents its case to the court
orally.

Demonstrate the sequence of events in atrial.

Activity 3

99
Pete, S et al. (2016). Civil Procedure: A Practical Guide 3rd Ed., Oxford
University Press, and Southern Africa, p. 270.

56
 Legal Aid Clinic and Professional Ethics

If the burden of proof is on the plaintiff, his or her legal representative will
address the court first and briefly outline what he or she intends to prove.
The plaintiff must present all the evidence that supports all the elements of
their cause of action. The plaintiff calls witnesses to support its case. After
a witness has given evidence, the defendant’s legal representative may
cross-examine him or her.142 The plaintiff’s legal representative will re-
examine the witness to minimize or eradicate problems or ambiguities
which have arisen from cross- examination. Once the plaintiff is satisfied
that they have made their case, they may close their case.143

The one who alleges must begin, this means that the plaintiff must
begin first with their case by outlining what h/she intends to prove.
The plaintiff then presents their evidence that support the cause of
action, he/she should at this stage call witnesses to support the case.
Feedback
Once the witnesses has given evidence, they may be cross-examined by
the defendant’s attorney. After the cross-examination by the
defendant, the plaintiff’s can re-examine the witness to clear up any
ambiguities that might have risen during the cross-examination. Once
the plaintiff is satisfied that they have made their case, they will close
their case.

The same process is repeated by the defence. Once the judge has heard
all the evidence, a judgement is delivered, which might favour the
plaintiff or the defendant, depending on the strength of evidence and
arguments presented by either party.

Unit summary
In this unit you learned the difference between action and application
proceeding. You have also learned about discovery which has been
designed to avoid trial by ambush. Parties are required to share documents,
diagrams, pictures, drawings or recordings which they intend to use at this
Summary trial. The rule of practice is that if you do not discover it, you cannot use it
at the trial. By virtue of discovery, parties know exactly what evidence their

57
Unit 4 ACTION AND APPLICATION PROCEEDINGS

opponent has against them so they can prepare a defence or challenge the
evidence.

In this unit you also learned about different types of applications such as
urgent applications, ex parte applications and on notice application.
Remember that in some form of applications, there is no notice given to
anyone, such as the ex parte application. Furthermore, you have learned
that sometimes it is possible you have the notice of application on your
opponent in another country, however, for you to be able to do this; you
need to be granted leave by the court. Therefore, any application referred
to as edictal citation has to be made to court.

You also learned about sequestration. Sequestration is the act of removing,

separating, or seizing anything from the possession of its owner under
process of law for the benefit of creditors or the state.

Lastly, note that some clients may approach the Legal Aid Clinic with
claims that may have prescribed, to this end, you are implored to study the
Prescription Act to familiarise yourself with the different prescription
periods.

References
Pete, S. et al. (2016). Civil Procedure: A Practical Guide (3rd Ed).
Cape Town:Oxford University Press, Southern Africa.
Prescription Act No. 68
References
of 1969. Rules of the
High Court of Namibia.
Rules of the Magistrates
Court.

58
 Legal Aid Clinic and Professional Ethics

Unit 5

JUDGEMENT, EXECUTION,
APPEALS AND REVIEWS
Introduction
In this unit you will learn about judgements, executions and appeals and
reviews. A judgement is given at the end of a trial, this is the outcome of
the proceedings. A judgement is usually favouring either the plaintiff or
the defendant.

Execution becomes necessary where a judgement is not satisfied, for

example where the judgement relates to a sum of money that owed to the
plaintiff, the plaintiff will be able to enforce the judgement by using the
procedure provided for in rules 104-111 of the High Court rules. It is at
this point that the plaintiff is able to attach the movable property of the
defendant. If there is inadequate movable property to satisfied the
judgement debt, the plaintiff will then resort to the procedure provided for
in rule 108 of the High Court rules.

Appeal and reviews come into play where either one of the parties is not
satisfied with the outcome of the proceedings.

Upon completion of this unit you should be able to:

▪ discuss judgement;

▪ explain how execution takes place;

Outcomes ▪ describe appeals;

▪ describe reviews;

Rules of the High Court of Namibia.

Pete, S. et al. (2016). Civil Procedure: A Practical Guide (3rd
Ed). Cape Town: Oxford University Press, and Southern
Africa.
Prescribed reading

59
Unit 5 JUDGEMENT, EXECUTION, APPEALS AND REVIEWS

Wilken and Van der Westhuizen (2002) “Practice Notes on

Practice Administration” in Van den Heever (ed) Law
Society of SouthAfrica.

Additional reading

1. Judgements
At close of trial, the court may a decision called a judgement based on the
law and evidence.68

a) Absolution from the instance

b) Judgement for the plaintiff

c) Judgement for the defendant

2. Executions
Execution of judgements in the High Court is dealt with by Rules 104 –
110:

✓ Rule 104 deals with execution in general

✓ Rule 105 deals with execution against movable property in

general.

✓ Rule 106 deals with execution against incorporeal property, liens

and real rights.

✓ Rule 108 and 109 deals with execution against immovable

property.

The registrar of the High Court will not issue a writ of execution against a
judgement debtor’s immovable property until he is certain that the
judgement debtor does not possess sufficient movable property to satisfy
the amount of the judgement debt.100 This basically means that before you
issue a writ of execution against judgements debtor’s immovable property,
you must first issue a writ against his movable property. Once the sheriff
finds that the judgement debtor does not have sufficient movable property

100
Pete, S. et al. (2016). Civil Procedure: A Practical Guide (3rd Ed). Cape
Town:Oxford University Press, and Southern Africa, p. 381.

60
 Legal Aid Clinic and Professional Ethics

to satisfy the judgement debt, he issues a nulla bona return.101 Once the
nulla bona return has been issued by the sheriff, one may then proceed and
issue a writ of execution against the debtor’s immovable property.102 The
judgement debtor’s immovable property may then be declared specially
executable.

In the Magistrates court, warrants of execution are used as opposed to writs

of execution in the High Court. There are three types of warrants in the
Magistrates court:

✓ Warrant of ejectment 103 deals with a claim for ejectment of a

person from a property, the sheriff removes the person from the
premises.

✓ Warrant for delivery of goods: 104 the claim is for delivery of

certain property- the sheriff removes the property from the
defendant and gives it to the plaintiff.

✓ Warrant of execution against property:105 this is a normal money

claim, the sheriff attaches the property which is then sold in
execution and proceeds of the sale are given to the plaintiff.

(a) Discuss the procedure available in rule 108 of the High Court
rules

Activity 1 (b) Differentiate between appeals and reviews.

101
Pete, S. et al. (2016). Civil Procedure: A Practical Guide (3rd Ed). Cape
Town:Oxford University Press, and Southern Africa, p. 382.
102
Ibid, p. 382.
103
Ibid, p. 388.
104
Ibid, p. 388.
105
Ibid, p. 388.

61
Unit 5 JUDGEMENT, EXECUTION, APPEALS AND REVIEWS

(a) The registrar of the High Court will not issue a writ of
execution against a judgement debtor’s immovable property
until he is certain that the judgement debtor does not possess
Feedback sufficient movable property to satisfy the amount of the
judgement debt. before you issue a writ of execution against
judgements debtor’s immovable property, you must first issue
a writ against his movable property. Once the sheriff finds that
the judgement debtor does not have sufficient movable
property to satisfy the judgement debt, he issues a nulla bona
return. Once the nulla bona return has been issued by the
sheriff, one may then proceed and issue a writ of execution
against the debtor’s immovable property. The judgement
debtor’s immovable property may then be declared specially
executable.

(b) An appeal is the re-hearing of the case by a higher court to

determine whether the judgement (or order) appealed against
was correct. Review is aimed at the method or procedure by
which the judgement was obtained. Reviews are decisions of
the lower courts or tribunals that are brought into question in
higher courts where grave irregularities are found to be
occurring or have occurred in these lower courts or tribunals.

In terms of rule 36 of the Magistrates Court, the process for execution of

any judgement for the payment of money, for the delivery of property,
movable or immovable, for ejectment shall be by warrant issued and signed
by a clerk of court, addressed to the messenger.

Section 66 stipulates that a warrant of execution against movable property

may be issued after judgement and if no sufficient movable property is
found, a warrant against the immovable property may then be issued.

3. Appeals and Reviews

An appeal is the re-hearing of the case by a higher court to determine
whether the judgement (or order) appealed against was correct. There are
special rules, time limits, principles applying to appeals at every stage of

62
 Legal Aid Clinic and Professional Ethics

the appeal.106 These procedural principles are not going to be recapitulated

here, as this is not the function of this study guide.107 The court appealed
from is usually referred to as the court a quo. Which means the court “from
which”. This court can be a trial court or motion court.108

A litigant who is not satisfied with the decision of a court of first instance
may appeal against such decision to a higher court. Appeals focus on the
merits of the judgement itself. The aim of appeal is to have the judgement
of the court a quo set aside. A decision which is not final cannot be
appealed. An appeal must be noted within a particular period.109

Review is aimed at the method or procedure by which the judgement was

obtained. Reviews are decisions of the lower courts or tribunals that are
brought into question in higher courts where grave irregularities are found
to be occurring or have occurred in these lower courts o tribunals.110

Before noting an appeal, counsel should determine whether the judgement

or order is appealable and whether leave to appeal is necessary. Harms
suggested as simple three-step test to determine whether a judgement is
appealable:111

✓ Is the judgement final in the sense that it is not susceptible to

alteration by the court who gave it?

✓ Is the judgement definitive of the parties’ rights?

✓ Does the judgement dispose of at least a substantial portion of the

relief claimed in the case?

If the answer to any of these questions is no, then the judgement is not
appealable and the judgement is simply a ruling.

The following judgements are appealable:

✓ The dismissal of a special plea

106
See the High Court Practice Directions.
107
Harms Civil Procedure in the Superior Courts, LexisNexis.
108
Marnewick, (2012), p. 447.
109
Pete, S. et al. (2016). Civil Procedure: A Practical Guide (3rd Ed). Cape
Town:Oxford University Press, and Southern Africa, p. 340.
110
Ibid, p. 375.
111
Marnewick, (2012), p. 448.

63
Unit 5 JUDGEMENT, EXECUTION, APPEALS AND REVIEWS

✓ A finding that the defendant is not liable.

✓ A declaratory order that the plaintiff’s claim for damages is

limited.

✓ An order upholding an exception to the plaintiff’s locus standi.

✓ An order refusing or granting a review of an administrative

decision.

The following judgements are not appealable:

✓ A ruling on a point of evidence.

✓ A ruling on a preliminary point of law or the method of calculation

of damages.

✓ An order referring the matter to oral evidence.

✓ A discovery order.

✓ An order granting or refusing postponement.

✓ An order that the matter be heard as a matter of urgency.

Unit summary
In this unit you learned you learned about judgements, executions, appeals
and reviews. A judgement may take different forms, namely, absolution
from the instance, judgement for the plaintiff or judgement for the
defendant.
Summary
Execution is the enforcement of a judgement which has not been satisfied,
this procedure is provided for in rules 104-111. In the Magistrates court,
warrants of executions are used as opposed to writs of execution in the
High Court.

Before noting an appeal, counsel should determine whether the judgement

or order is appealable and whether leave to appeal is necessary

64
 Legal Aid Clinic and Professional Ethics

References
Marnewick, L.G. (2012). Litigation Skills for South African Lawyers
(3rdEd.) Durban: LexisNexis (Pty) Ltd.
Pete, S et al. (2016). Civil Procedure: A Practical Guide (3rd Ed). Cape
References Town:Oxford University Press, and Southern Africa.
Pretorius, J.P. (1997) Cross Examination in South African Law.
Durban:Butterworths.
Wilken and Van der Westhuizen (2002) “Practice Notes on
Practice Administration” in Van den Heever (Ed) Law
Society of SouthAfrica.
De Klerk W et al. (2006). Clinical Law in SA (2nd Ed.)
Durban:LexisNexis.

65
Unit 6 PROFESSIONAL ETHICS

Unit 6

PROFESSIONAL ETHICS
Introduction
In this course you will learn about professional ethics. You will a broad
overview of ethics. Professional conduct concerns itself with the rules of
conduct regulating the legal practitioner’s profession. Professional ethics
apply not only to the legal practitioner’s professional career but also apply
to their personal lives,

Upon completion of this unit you should be able to:

▪ discuss professional ethics;

▪ explain the application of ethical rules;

Outcomes ▪ discuss sources of ethical rules;

Lewis (1982) Legal Ethics – A Guide to Professional Conduct for South

African Attorneys.

Prescribed reading

Du Plessis "The ideal legal practitioner (from an academic angle)" 1981

De Rebus 424-427
Slabbert, M. “The Requirement of Being A "Fit and Proper" Person For
The Legal Profession” PELJ 2011(14)4
Additional reading

1. What is professional ethics?

Professional ethics concern themselves with the rules of conduct regulating
the Legal Practitioner’s profession. They provide the norms in terms
whereof practitioners are to be fit and proper persons to practise.

66
 Legal Aid Clinic and Professional Ethics

They are the standards of right and honourable conduct which should be
observed by members of learned professions in their dealings with each
other and in protecting the interests and handling the affairs of their clients.

Among the main principles of ethical conduct expected of a lawyer are

that, in relation to his/her client, he/she will maintain confidentiality about
everything revealed to him during the professional relationship, will
always use his/her skills and knowledge to the best of his/her ability to
secure the client’s interests, but will not knowingly be a party to any fraud,
dishonesty or underhand dealings.112
A legal practitioner fulfils a dual function by assisting the client on the one
hand, and by promoting justice in society on the other hand. Since the
beginning of time, the law was considered a noble profession and only
certain people were allowed to practise.113

The legal profession is under wide social and political obligations to

society as a whole. It is under a duty to fulfil its role in protecting the rights
of minorities within the society and promoting the welfare of the
disadvantaged. As Chief Justice Langa stated:114

“The legal profession is the guardian of the dignity and integrity of the
nation. Our mettle as a nation will be judged how we deal with the weakest
and poorest amongst us”

[Link] is a fit and proper person?

It seems that it is not sufficient anymore to possess a law degree or a
thorough knowledge of the law to become a legal practitioner. 115
Applicants will be admitted to the legal profession only once they have
proven that they are indeed "fit and proper" persons for the legal
profession. Membership to the profession is thus subjected to character

112
Drinker, H. S. “Legal Ethics”. The Annals of the American Academy of
Political and Social Science. 1955; 297(1): 37-45.
113
Wildenboer L "The origins of the division of the legal profession in South
Africa: A brief overview" 2010 Fundamina 16 (2) 199-225.
114
Kwaxzulu Natal Annual General Meeting (2005) Durban.
115
Slabbert, M. “The Requirement of Being A "Fit and Proper" Person for The
Legal Profession” PELJ 2011(14)4, p. 212.

67
Unit 6 PROFESSIONAL ETHICS

screening, yet what exactly a "fit and proper" person is not defined or
described in legislation or regulations.116

It is commonly accepted that in order to be "fit and proper" a person must

show integrity, reliability and honesty, as these are the characteristics
which could affect the relationship between a lawyer and a client or a
lawyer and the public.117 Du Plessis lists the following qualities as the least
that a lawyer should possess:118

✓ integrity - meaning impeccable honesty or an antipathy to doing

anything dishonest or irregular for the sake of personal gain,
✓ objectivity – no irrelevant consideration whatsoever should bear
upon one’s judgment,
✓ dignity – practitioners should conduct themselves in a dignified
manner, and should also maintain the dignity of the court,
✓ the possession of knowledge and technical skills,
✓ a capacity for hard work,
✓ a respect for the legal order and
✓ a sense of equity or fairness.

Although an applicant seeking admission as a Legal Practitioner has the

onus to prove that he/she is “fit and proper” person, the court has the
discretion on deciding whether he/she is indeed fit and proper for the
profession. As the President of the Supreme Court of Appeal, judge
Harms said in Malan and another v The Law Society, Northern
Provinces:119
[T]he exercise of this discretion is not bound by rules and precedents consequently
have a limited value. All they do is to indicate how other courts have exercised
their discretion in the circumstances of a particular case. Facts are never identical,
and the exercise of a discretion need not be the same in similar cases. If a court
were bound to follow a precedent in the exercise of its discretion it would mean
that the court has no real discretion.

116
Slabbert, M. “The Requirement of Being A "Fit and Proper" Person for The
Legal Profession” PELJ 2011(14)4, p. 212.
117
Ibid, p. 212.
118
Du Plessis "The ideal legal practitioner (from an academic angle)" 1981 De
Rebus p. 424-427.
119
2009 (1) All SA 133 (SCA).

68
 Legal Aid Clinic and Professional Ethics

(a) What are ethics?

(b) Why do we need ethics?

Activity 1

(a) Professional conduct concerns itself with the rules of conduct

regulating the Legal Practitioner’s profession. Professional
ethics apply not only to the Legal Practitioner’s professional
career but also apply to their personal lives.
Feedback (b) They are the standards of right and honourable conduct which
should be observed by members of learned professions in their
dealings with each other and in protecting the interests and
handling the affairs of their clients.

In Ex parte Ngwenya120 the applicant applied to be admitted as an advocate.

He unfortunately pleaded on the one hand that he had been wrongly
convicted of a crime and on the other hand that he had since reformed. The
court argued that reformation can begin only when a person acknowledges
that he has committed a wrongful act. His character references supporting
the statement that he had reformed were irreconcilable with his allegation
that he had been wrongfully convicted. The court concluded that if the
references were true, his statement that he had been wrongfully convicted
was untrue, which, in turn, meant that he was not a "fit and proper" person
to be admitted as an advocate.

In Vassen v Law Society of the Cape121 the attorney had stolen money by
convincing an insurance company to pay the proceeds due under a life
insurance policy to himself instead of to the beneficiary. He then used the
money for personal purposes and denied doing so despite clear evidence to

120
In Re Ngwenya v Society of Advocates, Pretoria and Another 2006 (2) SA 87
(W).
121
1998 (4) SA 532 (SCA).

69
Unit 6 PROFESSIONAL ETHICS

the contrary. The court ruled that he was not a "fit and proper" person to
practise. Honesty, reliability and integrity are expected of an attorney.
Where the books of a practice reflected a trust shortfall of R12 million and
there was proof of touting, the Supreme Court of Appeal found that the
court a quo had been correct in concluding that the appellants were not "fit
and proper" persons to practise and that their names should be removed
from the roll.122

In the case of The Law Society of the Cape of Good Hope v Berrange123
the court had to consider the issue of "marketing agreements" between
attorneys and estate agents. Certain estate agencies referred conveyancing
work to Berrange’s firm and got payments in excess of R500 000 for the
favour. The payments were purportedly made for the promotion and
marketing of the respondent’s firm. That according to the judge clearly
constituted "soliciting" of professional work within the meaning of Rule
14 (6) (1) (1).25 Once again a rule was broken, which automatically led to
declaring the person who broke the rule to be not "fit and proper". The
respondent was therefore guilty of unprofessional conduct akin to touting.
The attorney was suspended from practice for a period of two years.

In Prince v President, Cape Law Society and Others 124 Mr Prince, a

Rastafarian, who had two previous convictions for the possession of
cannabis (commonly known as dagga), declared that he would continue to
break the law due to his religious beliefs. It was found that it would not be
"fit and proper" to allow him to register for his articles as an attorney as he
would constantly be breaking the law and his behaviour would bring the
profession into disrepute. In this case though, there are indications in the
Constitutional Court judgement that the position taken by the Cape High
Court and the Supreme Court of Appeal on this issue does not find
unqualified support among South Africa’s senior judges. In all three of the
judgements delivered in the Prince case the possibility is raised that Prince
may still be a "fit and proper" person to practise law in spite of his criminal
convictions and continued defiance of the law. Sachs J, for example,
remarked that according to his understanding of the principles of an open
democracy, Prince should not be forced to make a choice between his
conscience and his career. According to him Prince has shown himself to

be "a person of principle, willing to sacrifice his career and material

interests in pursuance of his beliefs" 8 He should therefore be seen as a "fit
and proper" person to practise. The impression is created that because the
smoking of dagga is a crime, Prince was considered as not being "fit and

122
Botha and Others v Law Society, Northern Province 2009 (3) SA 329 (SCA)
123
2005 (5) SA 160 (C).
124
2002 (2) SA 794 (CC).

70
 Legal Aid Clinic and Professional Ethics

proper" for the profession, but what if a person practised polygamy or

adultery or were addicted to gambling, which is not criminalised? Would
such a person be "fit and proper"? In other words, the question arises if
there is a difference between the morally wrong and the criminally wrong?
The judges of the Constitutional Court missed an opportunity to address
the notion of morality in a changing society. Their views were thus once
again positivistic. They focused only on the fact that a law had been
broken.

2. Application of Ethical Rules

Professional rules apply in the following areas:

[Link] with clients

The Legal Practioner should preserve the confidentiality of all
communications between him/herself and the client. Wessels stated in
Robinson v Hulsteyn Feltham & Ford 1925 AD 12:

“…a client is often compelled to reveal to his solicitor the most intimate
circumstances in his life. The solicitor may thus become the repository of the most
vital secrets. The confidences reposed in him he may not divulge, and if he does,
the Court will punish him for his breach of duty towards his client.”

Note that in terms of the Financial Intelligence Act 13 of 2012, the Legal
Practitioner is required to establish and verify the identity of clients and of
their authority. The Legal Practitioner is further required to keep records
of clients, business relationships, and of transactions for a specified period
and make available such records to the Financial Intelligence Centre at
their request.

There is a duty on the Legal Practitioner to avoid a conflict of interest.125

Conflicts could arise at any time and in any matter, it is the duty of the
Legal Practitioner to recognise potential conflict situations and to deal with
them appropriately.126

125
See S v Hollenbach 1971 (4) SA 636 (NC).
126
De Klerk, (2006) at 35.

71
Unit 6 PROFESSIONAL ETHICS

A Legal Practitioner has a duty to act with reasonable skill and care in the
conduct of the clients’ affairs. Failure to exercise the standard of care
normally expected of a legal practitioner constitutes a breach of the
contract, entitling the client to claim contractual damages.127

2.3. Relationship with the other practitioners

The Legal Practitioner has a duty of fairness towards colleagues in the legal
profession. Co-operation and courtesy are part of the traditions of the legal
profession.128A Legal Practitioner also has a duty to act fairly towards an
unrepresented party.

[Link] with the Court

Legal Practitioners must show the necessary respect to the court and court
officials. Failure to do so may constitute unprofessional conduct and
contempt of court. Contempt may take place in facie curiae (in the face of
the court) or ex facie curiae (outside the court).129

Misleading the court is viewed in a very serious light. Misleading includes:

making false statements to the court; 130 failing to direct the court’s
attention to relevant authority, and non-disclosure of material facts. Legal
Practitioners are expected to disclose all relevant information to the court,
even if such information may be detrimental to their client’s case.131

1. Fill in the missing words. (8)

The study of ethics is a branch of (a)_______________.

Activity 2 Professional ethics is an example of (b) _______________ ethics
and aims to improve (c)_______________. Ethical behaviour can
be very important in the workplace. Organisations with a strong
commitment to ethics will have increased (d) _______________ in
the community, mutual (e) _______________between members
and improved (f) _______________ performance. One of the ways
you can ensure that you behave ethically within you organisation
is to be (g) _______________ and make sure that your emotions or
personal (h) _______________ do not affect your daily activities.

127
Ibid, p. 35.
128
Lewis (1982), p. 159.
129
De Klerk, (2006) at 36.
130
Jasat v Natal Law Society 2000 (3) SA 44 (SCA); Society of Advocates of
Natal and Another v Merret 1997 (4) 374 (N).
131
De Klerk, (2006) p. 37.

72
 Legal Aid Clinic and Professional Ethics

Answer:

a) philosophy, b) applied, c) professionalism, d) credibility, e) trust, f) financial, g)

objective, h) prejudices.
Feedback

[Link] with the community

The general public has a right of access to the law and accordingly every
individual lawyer and the legal practitioner’s profession as a whole has a
duty to provide accessible legal services.

The legal practitioner’s duty towards the general public is often

emphasised when application is made for the suspension or removal of a
legal practitioner’s name from the roll and his/her re-admission to
practice.

[Link] with the State

Legal Practitioners have a positive duty to uphold the law and to further
the administration of justice. 132 Upon admission to the profession, both
attorneys and advocates take an oath which includes affirmation of
faithfulness to the Republic of Namibia. Legal Practitioners are therefore
expected to show respect for the legal order.

In the case of Prince v President of the Law Society of the Cape of Good
Hope and Others133 the appellant had submitted his contract of community
service to the Secretary of the Cape Law Society and it appeared from it
that he had been convicted on two occasions for the possession of cannabis
sativa and that he had no intention of stopping because he is Rastafarian.
It was held that the requirement in Section 4 A (b) (i) that the Society had
to be provided with proof that the attorney was fit and proper in every
respect and not only honest and reliable.

132
De Klerk, p. 33.
133
2000 (7) BCLR 823 (SCA).

73
Unit 6 PROFESSIONAL ETHICS

If a client seeks advice on breaking the law, they should be informed about
the possible consequences of acting unlawfully and be advised against such
action. Facilitating or assisting a client to break the law would clearly
constitute unprofessional conduct.

[Link] with the Law Society

Every person who is admitted as a legal practitioner becomes a member of
the Law Society by virtue of such admission in terms of section 2 and 43
of the Legal Practitioners Act.

Section 41 of the Act makes provision for the objects of the Law Society
as follows:

The objects of the Law Society shall be -

(a) to maintain and enhance the standards of conduct and integrity of

all members of the legal profession;

(b) to present the views of the legal profession;

(c) to further the development of law as an instrument of social

engineering and social justice;

(d) to encourage and promote efficiency in and responsibility in

relation to the profession;

(e) to promote the education of lawyers at all stages and levels, with
particular emphasis on the broadening of such education;

(f) to make recommendations to interested parties in relation to the

training of lawyers.
Every Legal Practitioner as a member of the Law Society is expected to
participatein the activities of the legal profession. The Law Society Council has
a number ofstanding committees that assist Council in the achievement of its
objects. The members of the profession are expected to make themselves
available to serve onthese committees.

3. Sources of Ethical Rules

The following are the sources of ethical rules.

74
 Legal Aid Clinic and Professional Ethics

[Link] Legal Practitioner’s Act 15 of 1995

The Act prescribes the qualifications and admission requirements of Legal
Practitioners.134 The Act deals with the constitution of the Law Society and
its council, the Legal Practitioners Fidelity Fund, the manner in which trust
accounts must be kept,135 the council’s disciplinary functions and powers,
the Disciplinary Committee and its powers in respect of Legal Practitioners
and Candidate Legal Practitioners, the work which may only be performed
by Legal Practitioners, the work for which only Legal Practitioners may
charge a fee and the procedures to be followed when promulgating rules.

3.2. Candidate Legal Practitioner’s Regulations

In terms of Regulation 22 of the Candidate Legal Practitioner’s
Regulations, a candidate may be required to appear before a disciplinary
committee under section 35 of the Act if it appears that a candidate attorney
has been a party to unprofessional, dishonourable or unworthy conduct of
the candidate’s principal giving rise to the disciplinary proceedings or if a
complaint has been made to the Disciplinary Committee by the Council or
any person on the conduct of the candidate which amounts to
unprofessional, dishonourable or unworthy had he/she been a Legal
Practitioner. Candidates are exempted from conducting themselves in an
ethically sound manner.

3.3. Rules of the Law Society

Rule 17-20 of the Law Society constitutes the accounting requirements.
Which are very important for any Legal Practitioner, it specifies in Rule
17(3) that business accounts and trust accounts should be kept separately.
In terms of Rule 17(4) Legal Practitioners are required to keep their
accounting records for at least 5 years from the date of the last entry in any
book.

Rule 18(3) (a) states that a law firm should ensure that the total amount of
money in its trust banking account, trust investment account which is held

134
Section 4, Act 15 of 1995.
135
Section 27, 28, and 30, Act 15 of 1995.

75
Unit 6 PROFESSIONAL ETHICS

as trust cash at any date should not be less than the total amount of the
credit balances of the trust creditors shown in its accounting records.

Rule 21 and 22 provides for professional standards and investigation of

unsatisfactory conduct. Rule 22(1) provides that there shall be a Standing
Committee of the Council known as the ‘Legal Ethics and Investigatory
Committee’ which consists of at least three members of the Law Society
with at least two in the private practice appointed by the Council.

In terms of rule 23, the Council may request any member or person to
assess the fees and disbursements payable by such person or a member in
respect of the performance of any work other than litigious work by a
member in his capacity as legal practitioner.

3.4. Rulings of the council

The Council of the Law Society makes ruling on various matters such as
the sharing of offices, advertising, marketing and entertainment, handling
of personal injury claims, non-litigious fees, the proper conduct of property
laws matters, collection commission, negotiation of fees, matters relating
to trust accounts, letterheads and the supervision of branch offices.

3.5. Court rulings

There are various court decisions dealing with ethical issues such as the
Witvlei Meat (Pty) Ltd and Others v Disciplinary Committee for Legal
Practitioners and Others (SA 9/2012) [2013] NASC 19 (15 November
2013) and Disciplinary Committee for Legal Practitioners v Murorua (SA
43-2012) [2015] NASC (20 November 2015.,136

3.6. Textbooks

136
An appeal was brought by the Disciplinary Committee for Legal Practitioners
(the Disciplinary Committee), established in terms of section 34 of the Legal
Practitioners Act, 15 of 1995 (the Act). The Disciplinary Committee found the
first respondent, a legal practitioner, guilty of unprofessional, dishonourable or
unworthy conduct and a majority of the Disciplinary Committee considered that
the first respondent should be struck from the roll of legal practitioners. In terms
of section 32 of the Act, the High Court of Namibia has the jurisdiction to strike
legal practitioners from the roll and accordingly the matter was placed before the
High Court. The relief sought was that the first respondent be struck from the roll
of legal practitioners, and in the alternative, that he be suspended from practice for
a period of two years.

76
 Legal Aid Clinic and Professional Ethics

Publications from our jurisdictions as well as our jurisdiction have

addressed the question of professional conduct.137

Unit summary
In this unit you learned about professional ethics and how they apply to the
legal profession. In order for a person to be admitted into the legal
profession, such a person should be a fit and proper person. Various court
decisions have dealt with what is meant by ‘fit and proper’. Being a fit and
Summary proper person does not only apply in the professional life of the legal
practitioner but also to the personal lives, the way the legal practitioner
conducts his personal life affects his/her professional career.

References
Drinker, H. S. “Legal Ethics”. The Annals of the American Academy of Political
and Social Science. 1955; 297(1):37-45
Du Plessis "The ideal legal practitioner (from an academic angle)" 1981 De
References Rebus 424-427
Kwazulu Natal Annual General Meeting (2005) Durban.
Lewis EAL, “Legal Ethics”, Van Blommestein, “Professional practice for Legal
Practitioners”.
Slabbert, M. “The Requirement of Being A "Fit And Proper" Person For The
Legal Profession” PELJ 2011(14)4.
Wildenboer L "The origins of the division of the legal profession in South
Africa: A brief overview" 2010 Fundamina 16 (2) 199-225

Case law:

See Lewis EAL, “Legal Ethics”, Van Blommestein, “Professional practice for
137

Legal Practitioners”.

77
Unit 6 PROFESSIONAL ETHICS

In Re Ngwenya v Society of Advocates, Pretoria and Another 2006 (2) SA

87 (W).

Botha and Others v Law Society, Northern Province 2009 (3) SA 329
(SCA)

S v Hollenbach 1971 (4) SA 636 (NC).

Jasat v Natal Law Society 2000 (3) SA 44 (SCA); Society of Advocates of

Natal and Another v Merret 1997 (4) 374 (N).

78