The judgment of Kebonang Ag J in the matter between EBC Guernsey and Bank of Botswana has unearthed shocking discovery of possible misconduct by the lawyer with the complicit knowledge and or involvement of the staff at the Administration of Justice (AoJ). Whilst the conduct of the attorney has been referred to the Law Society of Botswana for censorship, the judgment is glaring in its omission in respect of what is to be done to or with the AoJ officers who may well have aided and abated that conduct.
The judge further rescinded a default judgment against such a weight of evidence that seems to suggest that the client and attorney may well have committed perjury to the extent that they lied under oath. The lying must have been self-serving and intended to influence the court to return a favourable verdict. Such a client clearly cannot be immune from the sins of its attorney. In this regard, the rescission of the default judgement is to reward litigants who deliberately and knowingly mislead the court. It is equally worrying why the judge did not refer the possible perjury charge to the police, or at the very least, refer his judgment to the attention of the police to investigate a possible charge of perjury. The differential treatment in this regard in respect of the two misconducts is without a basis.
Of particular interest, and which was not explored further by the court is the question of how this fraud of through forging a court stamp could have been committed. This is because the allegations have a serious implication against the AoJ which continue to receive negative perceptions year in and out. This alleged fraud, for example, was it committed with the willing participation of someone at the AoJ or the attorney and or the firm which keeps court stamps: If it is the case that this was an inside job at the AoJ then such an officer must be identified and answer accordingly.
In this way, the court would have understood very well how a whole AoJ would have allowed itself to be used in this manner and for ulterior motives. Specifically, what would have prompted the Assistant Registrar of the High Court vouching to the authenticity of the Notice of Appearance to Defend and its grounds? This letter was at whose instance and what necessitated it. Default judgments are frequently the subject matter of rescission applications. They hardly and in fact never required that if properly filed or improperly filed, the Registrar must take one side and try to argue or help them argue their case. So therefore, this conduct by the Assistant Registrar should not have been taken at face value.
What the judgment has done is to leave open the question of the Registrar in future serving the interests of one litigant at the expense of the other, and more worryingly so, without censoring that conduct to ensure that the Registrar does not become a tool for the litigants. But how did the Registrar get to place himself in that compromising position where it was necessary to vouch for the authenticity of a document that later turns out to be false? There is to it than meets the eye and all players in this saga must have been called to account for and or explain their conduct. Lawyers greatest tool by far remains integrity and honesty. As it keeps being eroded all are affected, including the saint ones.