LSB, Mothusi imminent face off
Mpho Mokwape | Monday June 6, 2022 06:00
The granting of leave comes after the society’s failure to meet the deadline after Mothusi noted an appeal against his removal from the roll of practicing attorneys. When granting the leave, Justice Lakhvinder Singh Walia of the Court of Appeal (CoA) said though the time frames given by the LSB secretary leading to delay to file the notice were sketchy, it was not far-fetched. “The delay is not substantial and certainly not willful for the desire to oppose the appeal is manifest in the papers. The appeal is an important one and it is in the interest of justice that it be properly aired. Therefore leave to file out of time is granted and the notice of opposition to the appeal shall be filed within seven days of the order,” he said. Justice Walia pointed out that reasons for the default were dealt with at some length by the secretary explaining that he became aware of the notice of appeal, forwarded to him via email sometime after its receipt.
The secretary thereafter convened a round robin meeting of council members and got instructions to take steps to oppose the appeal and that the next step was to instruct attorneys to act on behalf of the society. The judge said the secretary explained that the various steps were only concluded in late October leading to a delay of some twelve days before the application for leave was filed. Justice Walia emphasised that according to the rules of the court, applications for grant of an indulgence by the court were to be made on notice supported by an affidavit setting forth acceptable reasons for the delay and reasonable prospects of success of the appeal. “This application is necessitated by the applicant’s failure to meet the deadline. An application for leave to file a notice of opposition, however does not fall in the category of ordinary applications for the court’s indulgence,” he said.
He noted that while the condonation sought remains an indulgence of the court, it would not usually be refused because it was in the interests of justice that appeals should be properly argued, with both sides being heard. Quoting the former president of the CoA Ian Kirby on a previous matter, Justice Walia said an application for leave to file a notice of opposition to an appeal out of time stood on somewhat different footing as the applicant has in his favour a judgment or order of the court, which he wishes to defend therefore no consideration that in such a case a necessity to demonstrate prospects of success in similar manner to that required of a prospective appellant. The background of the case is that on October 4, 2021 then Justice Mercy Garekwe of Lobatse High Court at the time ordered that Mothusi’s name be struck off the roll of legal practitioners kept by the Registrar.
That was after the LSB applied for his removal due to misconduct. He was at the time of his removal accused of failing to pass on money paid to his client Berea Security Services (Pty) Ltd as payment from University of Botswana (UB). At the time, Samuel Njaji was appointed curator to control and administer the trust accounts that were controlled and administered by Mothusi. According to papers filed in court, on July 18, 2021 the LSB received a complaint from Berea through an affidavit by company director Johnson Jobela Masole. “Berea had engaged the services of Mothusi to collect a debt on its behalf from UB. A settlement agreement was concluded in respect of the debt and UB paid the sum of P166,541.21 into Mothusi & Company Attorneys Trust account on 3rd June 2018. Berea was to receive an amount of P138,541.00 from Mothusi’s firm after deduction of the agreed legal costs. Mothusi issued a cheque on 12 July 2018 to Berea but dishonoured on 14 July 2018 due to insufficient funds in the Trust Fund held by Stanbic Bank. Berea was only paid after it had lodged a case with both LSB and the police,” stated the court papers.
Despite Berea withdrawing the cases after being paid, the LSB placed the matter before the Disciplinary Committee, which determined that there was a possible case of misconduct against Mothusi. The committee then determined that Mothusi violated the rules of the LSB for delaying payment of trust money after due demand was made by client and without any lawful excuse. The committee also determined that there was a shortfall in the trust account of the firm at the time the cheque was presented for payment. At the time in court, Mothusi who was representing himself denied any wrongdoing arguing that no direct evidence has been found of any wrong doing on his part and that it was only hearsay. Now he has noted an appeal against the judgement and challenging his removal from the roll. He did not oppose the LSB late filling for leave to appeal.