Namibia Legal Practitioners' Qualifying Examination common mistakes
Namibia Legal Practitioners' Qualifying Examination · Understand the traps and how to avoid them.
Drafting a notice of motion and founding affidavit that omit the jurisdictional averments required by the enabling statute or rule - for example failing to state that the applicant is an 'aggrieved person', that the decision sought to be reviewed was served on a stated date, or that the court has jurisdiction because the cause of action arose within the district.
Candidates learn the general form of an application (notice of motion, affidavit, annexures) and reproduce it mechanically, treating the substantive grounds as the only thing that matters. They do not go back to the specific Rule or statute to extract the elements that must be alleged, so the application is formally correct but jurisdictionally defective.
What to do instead
Before drafting, write a checklist extracted from the enabling provision: every fact the applicant must prove, every time limit, every person who must be joined. Draft the founding affidavit by working through that checklist paragraph by paragraph, and end with a paragraph that expressly alleges jurisdiction, locus standi and compliance with time limits. Re-read the checklist against the finished draft before filing.
Confusing the standards and procedures for arrest, search and seizure, and bail - for example treating a warrantless search of a person as lawful merely because the arresting officer suspected an offence, or advising a client that bail is 'automatic' for a scheduled offence.
The Criminal Procedure Act provisions on arrest, search, seizure and bail are studied as a block, and candidates memorise the section numbers without mapping each power to its preconditions, its exceptions and the consequences of unlawfulness. Under exam pressure they collapse the distinctions.
What to do instead
Build a one-page grid for each coercive power: who may exercise it, on what reasonable belief, whether a warrant is required, which exceptions apply, what must be said or shown to the suspect, and what remedy follows if it is breached. Practise applying the grid to short factual scenarios rather than reciting sections. For bail, separately list which offences place the onus on the accused and which do not.
Identifying the correct cause of action but then misapplying the element that actually decides the case - pleading breach of contract where the real issue is a delictual duty of care, or asserting negligence without pleading and proving the causal link between the breach and the loss claimed.
Candidates pattern-match the facts to a familiar label and then write everything they know about that label. They do not isolate the single element the facts put in dispute, so the answer is broad but never lands on the decisive issue.
What to do instead
For every problem, first state the elements of each candidate cause of action in a short list, then tick or cross each element against the facts. Where an element is contested, devote the bulk of the answer to it. Always separate wrongfulness, fault, causation and damage, and deal expressly with factual and legal causation and with remoteness or contributory fault where raised.
Treating a deed of transfer or a notarial deed as a form to be completed, rather than checking the underlying transaction - so the deed is prepared without verifying that the seller's title is unencumbered or that a required consent, waiver of preference, or rates clearance certificate is in place.
Candidates focus on the mechanics of the deed and the examination of title in the deeds registry, and skip the transactional due diligence that must precede it. They assume the conveyancer's instructions are complete and accurate.
What to do instead
Work from a pre-registration checklist: examine the title deed and any prior endorsements, confirm the seller's identity and authority, identify all endorsements required (transfer, bond cancellation, consent), and confirm every statutory certificate and consent is obtained before lodgement. State in the deed and covering documents only what the underlying documents support, and record any condition in the deed itself.
Advising on a company transaction or a winding-up without distinguishing the company's separate legal personality from the personal liability of directors or shareholders, and without identifying which statutory test (solvency and liquidity, reckless trading, or insolvency) applies to the particular transaction.
Candidates learn the separate personality principle and director duties as abstract rules and never connect them to the concrete transaction. They also conflate the tests for a distribution, a liquidation and a business rescue, which have different thresholds and consequences.
What to do instead
For any transaction, draw the parties as a diagram: company, directors, shareholders, creditors. Then ask, for each step, whether the company is incurring an obligation it cannot satisfy, whether a director is personally exposed, and which statutory provision governs. Memorise the solvency and liquidity test as a two-limb test and apply both limbs expressly to the figures given.
Drafting a settlement agreement or a will that is enforceable in form but fails on a technicality - an unsigned or unwitnessed will, a settlement clause that is vague as to time and manner of payment, or a clause that ousts the court's jurisdiction.
Candidates concentrate on the substantive bargain or the testator's wishes and treat formalities as an afterthought. They also reproduce standard-sounding clauses without checking whether each clause is certain, lawful and capable of enforcement.
What to do instead
After drafting, run a formalities audit: for a will, check signature, witnesses, attestation and any codicil; for a settlement, check parties' authority, certainty of obligations, time for performance, dispute-resolution clause and signature blocks. Test each clause by asking whether a court could enforce it as written and whether it is lawful. Redraft vague clauses with defined terms and fixed dates.
Answering a constitutional or administrative law question by reciting the Bill of Rights and the test for review without applying the specific ground of review relied on - for example alleging that a decision was 'unfair' without identifying whether the complaint is procedural fairness, ultra vires, error of law, or irrationality.
The grounds of review overlap in ordinary language, and candidates memorise the list without learning what facts establish each ground. They also skip the threshold questions of whether the decision is administrative action and whether an internal remedy must first be exhausted.
What to do instead
Structure every answer in fixed stages: is the decision administrative action; does a statute or contract exclude review; has the applicant exhausted internal remedies; which specific ground of review is pleaded and what facts establish it; what relief follows. For each ground, write one sentence stating the facts that would prove it, and match the facts in the problem to that sentence.
Handling a conflict of interest or a client's confidential information by describing the general duty of loyalty, without stating the concrete steps the practitioner must take - declining the mandate, obtaining informed consent in writing, screening the file, or withdrawing where the conflict is non-consentable.
Candidates treat ethics as a topic for moral generalities rather than a set of operational rules. They do not know which conflicts can be cured by consent and which cannot, so they give advice that sounds principled but is unactionable.
What to do instead
Learn the ethics rules as decision trees: identify the duty engaged (loyalty, confidentiality, competence, candour), identify the person to whom it is owed, decide whether disclosure and informed consent can cure the problem, and if not, state the withdrawal or declinature step and the timing. Practise writing the actual letter or file note that would implement the decision.
Writing an opinion that summarises the law and the facts but reaches no clear conclusion, or reaches a conclusion without stating the assumptions, the risks and the practical next steps the client should take.
Candidates are trained to show knowledge, so they write to demonstrate what they know rather than to answer the question asked. They fear being wrong and hedge, producing an opinion that gives the client nothing to act on.
What to do instead
Use a fixed opinion structure: question asked; facts assumed and facts to be verified; applicable law with pinpoint authority; application to the facts; conclusion stated in one sentence; risks and alternatives; recommended next steps with timeframes. State the conclusion early and again at the end, and flag every assumption that, if wrong, would change the answer.
Applying customary law as if it were a single uniform system, without first establishing which system applies to the parties, whether the customary marriage was validly concluded and registered, and how the applicable system interacts with statute and the Bill of Rights.
Candidates study customary law as a general topic and do not learn that the content of the rule must be proved or established in the particular community, nor how recognition of customary marriages and the constitutional requirement of equality modify the traditional rules.
What to do instead
In every customary law problem, first identify the community and the applicable system, then establish the facts that make the customary rule operative (consent of the parties and families, bride wealth agreement, registration, living arrangement). Then test the rule against the statute governing recognition of customary marriages and against the equality clause, and state expressly which version of the rule you are applying and why.