Insurance company Legal Shield Namibia and a Windhoek-based law firm, Krüger, Van Vuuren & Co, challenged the prescribed conveyancing fees, but have now had their case dismissed in the High Court and their appeal against that court’s decision dismissed in the Supreme Court.
Legal Shield and the law firm were arguing that the prescribed conveyancing fees were unconstitutional because these violate the Constitution’s protection of the right to practice any profession and to carry on any occupation, trade or business, and also violate the Constitution’s protection of the right to fair and reasonable administrative action.
The legal challenge was launched after Legal Shield and Krüger, Van Vuuren & Co concluded an agreement that the law firm would provide conveyancing services to Legal Shield members at an hourly rate, instead of at the compulsory tariffs fixed in the Deeds Registries Regulations.
The prescribed tariffs for conveyancing services are calculated on the basis of the value of the property involved.

At its lowest end, the tariff prescribed for the transfer of a property valued at less than N$20 000 is N$800.
At the top of the scale, for a property valued at N$500 000 or more, the prescribed tariff for a transfer is N$6 000, plus N$800 for every N$100 000 or part thereof with which the property’s value exceeds N$500 000 up to N$1 million, and a further N$400 per N$100 000 from N$1 million up to N$5 million, whereafter the tariff is N$200 per N$100 000.
Legal Shield and Krüger, Van Vuuren & Co were arguing that these prescribed tariffs prevent them from competing on price with other law firms performing conveyancing work.
In the Supreme Court’s judgement, which was written by Acting Judge of Appeal Kate O’Regan, the court concluded that Legal Shield had the required legal standing to bring the case to court.
In the High Court’s judgement it was ruled that Legal Shield did not have the necessary legal standing.
“In a constitutional state, citizens are entitled to exercise their rights and they are entitled to approach courts, where there is uncertainty as to the law, to determine their rights,” Judge O’Regan stated.
“The rules of standing should not ordinarily operate to prevent citizens from obtaining legal clarity as to their legal entitlements,” she said.
On the constitutional violations alleged by Legal Shield and the law firm, she found that the inability to compete on price has not been shown to be a material barrier to the right to practice their profession or business.
It was argued on behalf of the Law Society of Namibia, the Deeds Registries Regulation Board, the Registrar of Deeds, the Minister of Lands and Resettlement, and the Attorney General that the purpose of fixing conveyancing tariffs is to provide certainty with regard to the costs associated with property transfers and the registration of mortgage bonds, Judge O’Regan noted.
“There is no doubt that that purpose identified by the respondents is a legitimate government purpose and that, by providing compulsory fees for conveyancing, the tariffs meet this purpose. The tariffs cannot therefore be said to be irrational,” she found.
Although the rates could have been set differently, or it could have been decided to impose a guideline on an hourly rate to be charged for conveyancing work, the fact that there is a range of other policy choices however does not mean that the route adopted is unreasonable, Judge O’Regan further found.
It is appropriate that conveyancing as a service be regulated in the public interest, she stated.
Although there may be other advantages if competition on price were to be permitted, a fixed set of tariffs also has advantages, she pointed out.
“It permits people who are calculating whether they can afford to buy a property to know at the outset what the conveyancing charges will be. The sliding scale fixed tariffs also ensure that those who buy properties of the lowest value have least to pay in conveyancing fees, whereas those who buy more expensive properties, will pay more,” she noted.
Chief Justice Peter Shivute and Acting Judge of Appeal Pius Langa agreed with Judge O’Regan’s ruling.