- within International Law, Law Department Performance and Consumer Protection topic(s)
If you listen carefully at the average weekend show-house, you will hear the soundtrack of modern conveyancing: the gentle rustle of business cards, hushed conferrals about "a conveyancer we always use," and, every now and then, the discreet slide of a gift voucher across a countertop as if ethics were best subsidised with store credit. In the theatre of conveyancing, where estate agents frequently shepherd sellers and buyers from first viewing to signed offer, the temptation to "grease the wheels" has long been a recurring character.
And as the housing market hums, so too does the well-rehearsed and not so secret dance between certain estate agents and developers and certain conveyancers, one promising a steady flow of transfers, the other promising, well, whatever it takes, be it Deeds Office influence, expedited registrations or even monetary rewards. 'What', they reason, 'could possibly be wrong with a little lubricant in the gears of property transactions?' As it turns out, almost everything - legally, ethically and professionally.
The "gift economy" and other inducements for work
Conveyancers who offer gifts or other benefits to estate agents in exchange for property transfers are not enterprising, this risk crossing professional boundaries and may face serious consequences such as disbarment. The Legal Practitioners Act treats with particular suspicion any attempt by a legal practitioner to procure employment through another person to whom remuneration is given or promised, and any arrangement with a non‑practitioner to solicit professional work. The disciplinary net is broad: sharing fees or giving allowances to non‑practitioners, securing business through paid intermediaries, and conniving at unqualified persons deriving remuneration for work reserved to legal practitioners all sit squarely within the definition of "unprofessional or dishonourable or unworthy conduct." The Law Society's Rules sharpen the point by prohibiting allowances on professional fees to anyone other than another legal practitioner and by defining touting to include soliciting work directly or indirectly, and entering into arrangements for the introduction of clients.
Commission today, registration tomorrow: the art of jumping the gun
Everyone's second favourite melody is the early or "on-referral" payment of commission. Sales agreements are clear: commission is for the seller to pay, and it is due against the fulfilment of conditions and registration. The Estate Agents Code of Conduct reinforces this. It prohibits agents from receiving remuneration or commission before suspensive or resolutive conditions are resolved, and prohibits contractual sleights of hand that permit deductions or advance payments from trust or business monies or purchase consideration before transfer.
"Fronting" commission on referral is therefore not clever cashflow; it is a regulatory boomerang. It negates the contractual allocation of risk between seller and agent, invites disputes when transactions fail, and places agents in breach of their own Code. It also turns the conveyancer into an accessory if the conveyancer colludes to structure money flows or contractual terms to the same effect.
What the law actually says
When the music falls apart, the conductor's baton comes down and both professions will find themselves in well-mapped territory:
- For conveyancers and legal practitioners: Procuring your own employment "through or by the intervention of another person to whom remuneration for obtaining such employment has been given, agreed or promised" is expressly branded unprofessional or dishonourable or unworthy conduct by the Legal Practitioners Act and the Law Society Rules. So is entering into any arrangement to solicit professional business on your behalf. Any breach of the trust account provisions, or practising on terms that compromise independence, compounds the misconduct. Consequences range from reprimand and fines by the Disciplinary Committee to applications to the High Court for suspension or striking off, with the Court empowered to impose penalties, criminal sanctions and restitution.
- For estate agents: the Estate Agents Act and Code of Conduct contain a direct prohibition against undue influence: agents may not solicit, persuade, or influence any party to use a particular conveyancer, nor may they receive commissions before it is contractually due. Taking the conveyancer's gift and sending the sale's contract across is not clever salesmanship; it is improper conduct. The Board may investigate, reprimand, impose fines, and, in serious cases, withdraw fidelity fund certificates. Operating without a valid certificate is prohibited. The Act also creates criminal offences, with penalties including fines and imprisonment.
Consequences that outlast the free coffee voucher
The romantic notion that "everyone does it" is a poor defence and an even worse strategy - these off-key practices are unlawful under Namibian law. For conveyancers, disciplinary findings stick to reputations and can curtail careers; a trust‑account infraction can put a practice under curatorship before you can say "section 28." For agents, a withdrawn fidelity fund certificate is a commercial curtain-call. Both risk fines or criminal prosecution, reputational damage, and the quiet but devastating distrust of counterparties, clients and lenders who expect their fiduciaries to treat ethics as first principles, not optional extras.
Crucially, the same facts resonate across statutes. A "voucher kickback" tied to referrals can be:
- unprofessional conduct (tout/fee‑share) under the Legal Practitioners Act;
- improper conduct under the Estate Agents Code;
- a corrupt practice under the Anti‑Corruption Act; and
- the predicate offence for a money‑laundering charge under the Prevention of Organised Crime Act.
Layered over this, the Competition Act's prohibitions provide an additional, modern counterpoint where referral pacts, exclusive arrangements and "pay‑to‑play" schemes foreclose rivals or substantially lessen competition.
The label affixed to a payment is irrelevant when purpose and effect reveal an inducement. Vouchers branded "thank you," "sponsorships" proportional to contracts delivered, and "early commissions" paid "from the firm's business account" are still gratification if their function is to buy referrals or to accelerate commission contrary to the law. Whether you call it "relationship management," "marketing alignment," or "client service," the conduct looks the same under statutory light.
Play by the score, not by ear
Here is the truly radical proposal: follow the law: clients should choose their conveyancer; agents should be paid by their principal, the seller, in the manner and at the time the contract stipulates; conveyancers should win work on merit, not by shopping‑voucher diplomacy; and both professions should keep trust monies and the trust of the public in the highest regard. The law is not hostile to commerce; it is hostile to shortcuts that corrode the rule of law and the professions that serve it.
The moral of the story sings for itself. If your business model needs gift vouchers, euphemisms, or "off-book" efficiency to compete, it is not a model,it is a disciplinary case study in search of a file number.
What is done in the dark will not withstand the scrutiny of the light,or the authorities. And when the music stops, nobody wants to be caught holding a gift card instead of a fidelity fund certificate!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
