Through me you pass into the city of woe: through me you pass into eternal pain… All hope abandon, ye who enter here. ~ Dante Alighieri
These lines above are from Dante’s famous 14th century poem, Inferno, which describes his epic journey to the lowest reaches of hell. He depicted these words as posted above the gates of hell. This warning might very well hang over the entrance to our courts.
“Why?” you ask. Well, I’ve come to the conclusion that there cannot be any meaningful or substantive equality before the law when only the very rich can afford legal services and advice (and even then the cost may often lead to their complete bankruptcy), so I must therefore wonder whether the very idea of ‘equality before the law’ is a fact or mere fiction.
The learned men and women of the legal profession no doubt feel entitled to charge as high fees as they can get away with on account of the fact that they have specialised knowledge of the law and spent many years at university to learn the obscure technical details of the law and to read a dead language, Latin, in which the secrets of our legal code are still locked.
Mercenaries in court
Despite protestations from colleagues, who reported him to the Law Society for it, I suspect that the well-known attorney Richard Metcalfe was perfectly right when he said point-blank:
“An attorney is like a mercenary. We work for money and not loyalty.”
According to the schedule of legal fees, an attorney can charge N$1,256 per every half hour for consultations, for appearing in court and for drafting or perusing documents, or N$2,512 per hour.
Taking instructions will cost the client a further N$1,256 per half hour. But first they will have to pay a hefty deposit just to be able to speak to a lawyer.
So if after consultation, your attorney calls you for 10 minutes and sends you a five-page letter, your family might have to go on an immediate diet, or risk facing a lawsuit for non-payment, unless of course your dad owns a brewery, because a mere telephone from ‘your lawyer’ will cost N$126 for every five minutes or less, while a letter can cost N$75 per page.
His black-cloaked appearance before court would cost at least N$10,000 for any part of the day. You may also have to pay N$201 for every folio page that the attorney says he looked at, as well as N$419 for every half hour of travel.
Barriers to justice
These costs present a considerable barrier to justice for the ordinary person, in a country where the vast majority earn less than N$2000 a month, where one quarter of the children are chronically malnourished.
I have seen people go bankrupt trying to defend themselves and their loved ones before court. I’ve seen defendants submit to false allegations because they cannot afford a lawyer to bring the evidence that will prove them innocent before court.
To the man in the street the legal profession seems insulated and closed off from public scrutiny, a private circle where lawyers are allowed to set their own fees, without oversight.
From the standpoint of Joe Public, lawyers are seen as milking the legal system and its victims for every penny they’re worth. You can hardly find a lawyer in this country, who is not very wealthy.
When clients can no longer pay, not only will their case be discarded (despite the merits and prospects of success), but ‘your lawyer’ will also drag you before court for unpaid (in some cases unpayable) debts, and so trap their clients into the payment debt plus interest, thus long-term debt slavery.
Legal code rooted in slavery
Roman-Dutch law arose out of the needs of slave-owning society no less. Many lawyers are commonly regarded, not as the defenders of the weak and the vulnerable, not as champions of justice, but as black-cloaked vultures profiting from the ignorance of the common man, ready to pick bare the bones of any fool that comes in search of help.
Have you ever wondered why key legal concepts have to be communicated in a dead language that very few people can understand? Even fairly educated people, proficient in English and logic, will struggle to decipher the meaning of our laws.
Roman-Dutch law is obscure, complex and convoluted; the procedures of the courts so highly technical that the common man can barely make sense of what to do when confronted with a summons.
There is a reason for this: it is so that you are obliged to seek out a lawyer (and pay) for legal help, but the sky-high legal fees present a considerable barrier to justice.
These cost factors render the legal system impenetrable and inaccessible to the average citizen and thus reinforce the unassailable position of the legal eagles.
It seems obvious that many people simply cannot afford to defend themselves before the courts, particularly in civil cases, because the legal costs in this country do not correspond to the reality of ordinary people’s earnings.
As a result, most people rarely have recourse to justice and protection under the law (even when they have suffered damages and are entitled to it) because they simply cannot afford the service of a lawyer.
Pricing out the poor
Whether you suffered damages and violation of your rights, at work or home, a fair hearing has effectively been priced out of range of the ordinary person.
Even if a rich man brings a poor man before the civil courts and makes serious claims against him, demanding everything the defendant owns, including that he pay the costs of the lawsuit, that poor man, though he might be innocent of all the allegations against him, will find himself in a tight spot.
Unless he can immediately afford a lawyer to reply to the summons within a set time (usually 3 to 10 days), he will be at a loss, as the courts will issue a judgment in favour of the plaintiff, by default.
This suggests that although we have a functioning legal system, in essence we do not have a justice system. We have a legal system designed by default to benefit the wealthy few. Our legal system and its tariffs, with rare exceptions, serve to preserve power and wealth among the elites and effectively deny the common man protection.
This is done simply by pricing poorer people out of the market, in the same sense that you can exclude poorer people from a residential area, or an upmarket restaurant by simply pricing the product beyond their reach. You might call it a form of ‘economic apartheid’, by which the poor are filtered out and excluded though prohibitive pricing mechanisms.
Defunct divorce laws
In divorce cases, which often tend to be very traumatic for families, the caprice of the legal fraternity is most clearly on display, as they tend to financially drain the affected families to the point of penury, despite adverse impact on the well-being of children, parents and the wider society. The social consequences of the the legal fees are never brought into question.
The only reason I can see for dragging broken families before the High Court is to preserve the revenue stream of elite attorneys, who alone are familiar with the arcane language and mystifying procedures of the High Court. Family matters should be heard by a family court, where attorneys are not needed.
A question of oversight
Who sets the legal tariffs? The Law Society of Namibia, a self-governing body composed of lawyers and attorneys. OK, in which other profession are people allowed to set their own salaries? “Politicians”, you say, but even in parliament there is some democratic oversight. But who oversees the lawyers, or are they a law unto themselves?
I’m still waiting for a response from the Law Society to the questions I put to them.
Until recently, British law required that barristers and judges must declare whether they are freemasons or belong to secret associations, whereby they may be sworn to protect members of their organisation.
The law intended to reduce the possibility of collusion before the courts.
Predictably, the lawyers fought back and in 2010 the UK government scrapped the requirement that officers of the court declare freemason allegiances. That question has never even been raised in our legal debates.
My contention is this: that given the unwieldy and extortionate fee structure, which acts as a high barbed wire fence by preventing people from accessing the courts, and due to complexity of the legal code the contemporary administration of civil law has little or no resemblance to justice.
The legal set-up appears to have everything to do with milking the common man and women and draining their financial resources to the point of bankruptcy for the benefit of the legal eagles and black-cloaked vultures circling the courts.
- First published in Sept 2014
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