Pricey justice bars most Namibians from access

07 December 2021 | Local News

JANA-MARI SMITH



WINDHOEK

Access to justice through private lawyers is a pipe dream for a majority of Namibians, with prices for professional legal assistance far exceeding what most can afford.

“To the countless, faceless Namibians who desperately and vainly seek legal advice every day, the constitutional promise of justice for all sounds meaningless and cruelly cynical,” a study by associate professor Dunia Prince Zongwe of the Walter Sisulu University, published this year, found.

Titled ‘Nobody can Really Afford Legal Services: The Price of Justice in Namibia’, Zongwe found that “nine out of 10 Namibians can barely afford one hour of legal services per month by a junior legal practitioner”.

His study estimates the average price for legal services in Namibia by a lawyer with three years' experience can hover around N$1 200 per hour, while a seasoned and established lawyer can charge as high as N$2 000 per hour.

He added that even if an average lawyer in solo practice bills his clients N$700 per hour, the rough available statistics on legal fees “point to an alarming yet inescapable truth: Nobody, except for the privileged few, can afford legal services”.

The study warns that unequal access to the courts “betrays the spirit and the letter of the Namibian Constitution, which upholds the principle of access to justice for all”.

As a result, it found that “the majority of poor Namibians and those with moderate income do not receive the amount and type of legal services they need”.

Exorbitant

The issue of the high price of litigation has been highlighted in Namibia over several years.

According to Zongwe’s paper, in 2016, the High Court estimated that the average costs for a case at court can range between N$50 000 to N$100 000 per litigant. Costs skyrocketed to between N$200 000 and N$300 000 for civil cases.

The Ombudsman’s Office released a report in 2017 that warned that Namibians cannot equally access to courts due to exorbitant fees.

Former Ombudsman John Walters was quoted as saying: “Only rich people can afford true justice”.

In November, the courts heard from some of the Fishrot accused that they were being billed N$22 000 per day for the services of senior defence advocates, in addition to between N$14 000 and N$18 000 per day for junior legal representation.

Zongwe’s paper highlighted that while the fees charged by lawyers are comparable to professions such as accountants, and less expensive than medical practitioners, this does not “change the reality that the great majority of Namibians cannot afford legal services”.

He warned moreover that women, who on average earn less than men, are even worse off, paying a high price for not being able to afford legal services.

Solutions

While several tried and tested solutions can address the problem, including small claims courts, pro-bono legal services and more, Zongwe cautioned against simply slashing the price of legal services.

He explained this could serve as a disincentive for potential lawyers to enter the profession.

He warned that some options, such as government and private legal aid, can be undermined by underfunding, while only a few firms offer pro-bono services, which overall have not “significantly dented the justice-accessibility problem in Namibia”.

In the paper’s conclusion, he stressed that the affordability conundrum in Namibia features inadequate competition and an overstretched public-assistance government.

Zongwe argued that “the ideal solution would thus combine increased competition and broader cost-sharing. Currently, people are sandwiched between public assistance and a limited capacity to access private counsel”.

“Insurance stands out as the best option, as the most apt at shouldering and sharing the huge responsibility of maintaining a wholesale system of public legal assistance,” he wrote.

This option does not threaten the overall profitability of the legal profession, he said, and if implemented as a “mandatory monthly deduction and as covering an employee's dependents, insurance beats all the other law-reform proposals … to resolve the high costs of legal services”.

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