DIBA M. DIBA : CHAIRMAN OF THE LAW SOCIETY
In 2011 the Society adopted a Position Paper on Appointment of Judges. The Paper dealt with the procedure for appointment of Judges. It advocated for transparency in the process which, amongst others, called for advertisements of vacancies of Judges as and when they exist and are to be filled. Since then we have noted that the procedure for appointment of Judges of the High Court, though not sufficiently transparent, was a step in the right direction. The Society was therefore shocked when it received communication that the Judicial Service Commission (JSC) has adopted a new process for appointment of Judges at the High Court which will no longer include advertising for the filling of posts for Judges. Instead those who are interested are to “drop a CV” and will be contacted when there is a vacancy. The Law Society believes that this approach is regressive, uncalled for and serves no useful purpose. The Law Society places it on record that though it is represented in the JSC the “unanimous” decision of the JSC on this subject does not reflect its position as it is contrary to its stated public position from 2011. The Society has however always decried the secrecy with which appointments to the Court of Appeal are shrouded. The process at the Court of Appeal continues to be a source of great concern for the Society, Judges of the High Court and the public at large. Let us be clear. This must not be misunderstood to be an attack on the latest appointments to the CoA bench. It is about the process and the lack of any discernible criteria. We are grateful to the CJ, who is the Chairman of the JSC, for his assurance that he will table our concerns with the JSC for their consideration. During the past year eight (8) Judges of the High Court were appointed. The appointments are most welcome and we look forward to increased efficiency as a result thereof. The Society is grateful that its request for the AoJ to appoint Acting Judges on short-term basis has been acceded to. The first two (2) Judges are in place. We wish to see an extension of this approach so that it may attract senior attorneys who would be interested but are not able to leave their practices for up to three (3) months at a time. We propose, for example, one-day-per-week engagements where they can attend to short motion matters such as urgent applications and summary judgement applications.
DELAYED DISPOSAL OF CASES
The challenge of the delays in disposal of cases persists. We note with concern that there are still instances where a Judgement / Ruling on an urgent matter, filed as such, or summary judgment application, is delivered some six months or more after the hearing. Surely this defeats the very purpose of those procedures. 3.2 The problem of delayed delivery of Judgments and Rulings by the high court has also been noted by the Court of Appeal in some of its judgements. The Court of Appeal has fallen just short of admonishing the affected Judges. The Judiciary has a Code of Conduct in terms of which there are set timelines within which Judgments and Rulings are to be delivered. The Society therefore urges the JSC to ensure that the Code is complied with
When the Judicial Case Management system was introduced it was hailed as the panacea to the slow disposal of matters. The Society regrets to note that it has not achieved the intended results. The AoJ has recognised and acknowledges the problem and we hope, as assured, that the current interventions regarding transformation will address the JCM Rules. The failure to implement the judicial case management has resulted in litigation becoming prohibitively expensive. If today you file a matter, the likelihood is that you will be allocated a date of hearing in 2020 or 2021. This may either be due to failure by some Judges to apply themselves or to plan their work properly or to heavy work load. Whatever the cause it is imperative that this issue be addressed urgently. No investor is going to invest in a jurisdiction where it takes over two (2) years for the courts to determine a dispute. The above challenges within the court system have led to increased use of arbitration to resolve disputes. Arbitration offers the litigants control of their case and a quick determination of the dispute. However contrary to popular belief it is not necessarily cheap. It is available only to those with deep pockets.
MONEY LAUNDERING AND ILLICIT FINANCIAL FLOWS
We are informed that the state of legal practice in Botswana contributed significantly to our recent poor showing in the international ratings for AntiMoney Laundering and control of illicit financial flows by Financial Action Task Force based in Paris. The Society is concerned about this and will do all that is necessary to assist the country to achieve compliance. This will include training for our members in this area and by ensuring a more robust regulatory framework. We have had engagements with the Financial Intelligence Agency (FIA) and we look forward to further collaboration and training, especially on the recently amended Act.
In terms of the Legal Practitioners Act (LPA) trust accounts of legal practitioners are only intended to be used for receiving or holding money which is to be held in trust for a particular purpose connected with the practice of the attorney. In terms of the LPA, it is an offence punishable by a fine and / or imprisonment if an attorney contravenes this provision. It is also prima facie professional misconduct for which if found guilty the sanction may be disbarment.
REGULATION
The legal profession and the practice of law in Botswana are governed by the Legal Practitioners Act, enacted in 1996. This Act has been overtaken by the times. We are most grateful that after more than ten (10) years of trying without success to have the Act amended we have the Government’s assurance that the amendment will be placed before Parliament during this year.
The Society requests legal practitioners, the Judiciary, stakeholders and the public at large to look out for the publication of the Bill so that they can provide comment on it.
The Society again, as it did last year, warned the public to be wary of fraudsters masquerading as attorneys and some calling themselves paralegals. Only persons who hold a Practicing Certificate are allowed to provide legal services for a fee or reward and these are legal practitioners. The Society’s view is that even the Trade Disputes Act when it provides that a party may be represented by anybody envisages that the representative, such as a shop steward, official of a Union or employee of a party would not be appearing for a fee or reward. We will shortly be challenging this appearance by non-lawyers for a fee at the Industrial Court at the High Court.
Lastly on this subject the public should note that whilst these pseudo lawyers may be cheap ultimately the unsuspecting client will pay heavily for not having had proper legal advice from a trained professional
STATEMENT EXCERPTS FROM THE OPENING OF THE LEGAL YEAR – 2019 HIGH COURT
*Edited for length