Modimo loses appeal with costs
Spira Tlhankane | Friday October 30, 2015 15:43
The High Court had dismissed his call for a review of his charges and his guilty verdict to be set aside.
The Disciplinary Committee of the Law Society of Botswana (LSB) found Abel Modimo of Modimo & Associates guilty of unprofessional conduct for claiming overreaching collection commission from a client.
The LSB disciplinary committee ordered Modimo to refund the Southern African Furniture Manufactures company P34,812.61 and he was also fined P3,000.
Dissatisfied with the decision of the committee, he filed an application with the High Court for a judicial review and the setting aside of the verdict. The High Court upheld the LSB decision and Modimo approached the CoA.
Dismissing the appeal, Justice Isaac Lesetedi said the appellant was fortunate to receive a fine of P3,000. “He is a practitioner of many years and the question of the amount of collection commission he was entitled to receive payment for was elementary,” he said.
He said the sixth respondent being the Southern African Furniture Manufactures company was in a very weak position with a valuable property under the risk of a sale in execution.
“The appellant ought reasonably to have been aware of his leverage in the situation,” he said.
Justice Lesetedi said any charge for obtaining payment for collection commission on money not collected constitutes overreaching. “In any event, an error in mathematical computation if it existed does not constitute an irrationality,” he said. He pointed out that the appellant faces a number of hurdles in pursuing the irrationality argument. “This point was raised for the first time in the written submissions on appeal, it was not part of the appellant’s case in the court nor was it foreshadowed in the appellant’s affidavits,” he stated. Justice Lesetedi said the appellant never raised the question of the proper mathematical computation of the amount in court.
He added that the appellant could not choose a new frontier in his submissions on appeal to argue issues grounded on facts that were never pleaded in the court.
Lesetedi also said the amount of P95,000 paid by the Southern African Furniture Manufactures to BBS was made over the appellant. “Clearly the sum of P95,000 was the fee levied by the appellant at all times so it was the sixth respondent who intended to settle the fee note,” he said.
Lesetedi said during the course of the appeal, the issue of whether or not the sixth respondent was served with the review application in the court was raised.
“For purposes of this judgement it is unnecessary to resolve the issue of whether or not there was proper service of the application for judicial review on the sixth respondent,” he said.
Lesetedi said the only issue that remains is whether as contended by the appellant’s attorneys, the sixth respondent is entitled to costs of the appeal including cost of counsel.
“No separate argument was raised regarding entitlement to costs of counsel. Costs must therefore include the costs of the Southern African Furniture Manufactures on a level including that of counsel,” he said as he dismissed the appeal with costs.