Society Of Advocates Of Namibia, Namibian Bar

Legal System

THE ROLE OF ADVOCATES IN THE NAMIBIAN LEGAL SYSTEM

The legal system affects everyone, be it in drawing up a will, buying a house, getting divorced or having to appear in a court of law. The legal profession is especially trained to assist all members of society in this regard.

Up to 1995 the legal profession in Namibia used to be divided into advocates (barristers), and attorneys (solicitors). No dual practice was permitted.

Since the promulgation of the Legal Practitioner's Act, Act no. 15 of 1995, the previous division of the legal profession into advocates and attorneys was removed. Legal practitioners can now operate in all fields of law formerly reserved for advocates.

The profession of 'Advocate' was however 'retained' in the sense that provision was made for existing advocates, as well as members intending to specialise in this field to continue to practice as such on condition that such legal practitioners be exempted from holding a Fidelity Fund Certificate as is required of all other legal practitioners in terms of Section 67 of the Act.

Accordingly advocates continue to render service, on a referral basis, as before, to clients who seek the specialised services offered by these members of the legal profession in Namibia.

ADVOCATES AND ATTORNEYS - WHAT IS THE DIFFERENCE?

There are therefore two categories of legal practitioners in Namibia, that is legal practitioners practising with a Fidelity Fund Certificate, (sometimes also referred to as lawyers or attorneys) and advocates, legal practitioners exempted from holding the said Fidelity Fund Certificate (referred to as advocates). Think of them as ‘general practitioner' and ‘specialist'.

The attorney, like a general practitioner is a person with whom you first make contact when you have a legal problem. Therefore, an attorney needs to be readily accessible to everyone, and the service he or she supplies needs to be broad enough to cover a wide field of legal problems. This means that in general, attorneys are not always able to provide a specialised service in every field of law in which they may be asked to act.

Advocates, like medical specialists, have specialised expertise in various areas of the law, such as in constitutional law, labour law, criminal law, the law of contract etc, but they remain primarily experts in advocacy and court work, that is the art of presenting cases in court. A duly qualified trial lawyer or advocate is an indispensable element in each trial as in a truly qualified advocate legal knowledge, forensic skills, professional ethics and good court- room etiquette should be blended in total union in the furtherance of the administration of justice.

Should a client choose to seek the assistance of such a specialist in addition to the services of the legal practitioner he has already engaged, the attorney then, in turn, enlists an advocate on the client's behalf, to present the client in court and/or to advise him or her as may be necessary.

WHAT IS THE BAR?

Historically advocates have been organized into societies of advocates practising in the major centres of their countries. These societies are historically known as bars which are, in essence, fraternities of men and women, who practise as advocates in the centres where the bars are situated. Namibia only has one bar known as the 'Society of Advocates of Namibia', which is situated in Windhoek, the seat of the Namibian High- and Supreme Courts.

As the body representing the advocates' profession, the purpose of the Namibian bar is to maintain professional standards and conduct amongst practising advocates, and sometimes to enforce discipline amongst its members. It also provides training for aspiring advocates at the beginning of their careers. Members are always ready to assist one another and it is not unusual for the most junior member of the bar to approach a senior member with any problem of practice that he might encounter.

The bar enforces a strict code of ethical conduct and professional integrity to which all member- advocates are required to adhere.

WHAT IS THE BAR COUNCIL?

The daily affairs of the Society of Advocates of Namibia are managed by the 'Bar Council' whose powers and duties are prescribed by the constitution of the Society of Advocates.

WHAT DO ADVOCATES DO?

Advocates are primarily experts in the art of presenting and arguing cases in court.

Until 1995 only advocates had audience and the right to present cases in the higher courts such as the High Court and the Supreme Court of Namibia. Since then all legal practitioners have the right of audience in these courts.

In a great number of cases however litigants are still represented by advocates. This requires a mastery of the law and the facts of the case, good judgment and the ability to present a case clearly and coherently. It means that an advocate must conscientiously prepare every case by reading, seeking advice and clearly defining the issues, which need decision.

Advocates also provide legal opinions to assist the drafting of legal documents that are required in every walk of life, be it commercial, industrial or domestic.

An important part of the advocate's work is providing legal assistance to needy clients by way of legal aid and amicus curiae appearances in court. What this means is working for the good of society and/or at reduced rates and in some cases without remuneration.

Members of the Society of Advocates of Namibia are also engaged in a wide- ranging number of other activities such as serving on the Council of the Law Society of Namibia, its various sub-committees and lecturing at the University of Namibia. Advocates are also actively engaged in the training of candidate legal practitioners in that they also lecture at the Justice Training Centre in Windhoek. The present Chief Justice of the Republic of Namibia as well as the first Chief Justice appointed after Independence where former members of the Namibian Bar.

WHY ARE ADVOCATES IMPORTANT?

Legal representation in the courts is a fundamental right of Namibians and all other litigants. It is vital that such representation should come from as broad a cross- section of Namibian society as possible. This service is essential and is available to the government, every organization and every citizen, rich or poor, weak or powerful, which wishes to enforce it's rights, or which seeks to be protected from the tragedy of incorrect prosecution or unjust treatment. That the parties to litigation can be referred to specialized legal practitioners remains essential in the maintenance of a just and fair society. It is the advocate's duty to use his expertise to ensure that people's freedom is in no way compromised, nor their rights denied.

An important tradition which exist at the bar is the obligation on advocates to take all work offered to them, provided that they are available to do it and that the work falls within their area of expertise. In this way, everyone has access to the best available services, irrespective of the merits of a case or the popularity of the cause.

Generally speaking legal practitioners, whether practising with or without a fidelity fund certificate, remain as much part of the courts in which they practice as the judges who preside over them. Their duty is not only to their clients but also to the court. Although they are not court employees and practise independently in private practice, they are often loosely referred to as officers of the court, to emphasise their duty to the administration of justice and the court's disciplinary relationship with its practitioners.

HOW DO I BECOME AN ADVOCATE?

The requirements for membership to the Namibian Bar are a recognised Bachelor of Laws degree, admission as a legal practitioner in terms of Act 15 of 1995, exemption from holding a fidelity fund certificate, as well as serving and completing a six month period of pupillage followed by a bar examination consisting of the following written subjects:

Constitutional law
Criminal Procedure
Labour law
Preparation and conduct of civil trials
Motion court practice and procedure
Evidence
Ethics
Legal Writing

Membership of the Namibian Bar is limited to Advocate's in private practice. Members of the Bar are obliged to occupy chambers and are bound by the Rules of ethics applicable to legal practitioners in general and to Advocates, as well as by the Constitution of the Society of Advocates of Namibia.

There is also provision for 'associate membership' catering for the needs of those that may wish to be members of the Namibian Bar, but hold other positions on a full time basis, such as academics at the University of Namibia.