A tribute to Justice Legwaila

Correspondent | Friday August 12, 2016 15:54

I was devastated beyond measure. A day earlier I had gone to Bokamoso to check on him, but on account of his apparent deterioration, I was not able to see him. Two weeks before his passing, on the 15th of July 2016, to be exact, I met my good friend A.T at the airport and we had occasion to reminisce about our relationship with our “old man” as we called him. We called his wife and promised to stay in touch. At the time, we did not and could not have known that he would be gone so soon. Our country and our people have lost one of the most beloved sons – a Justice who was the very personification of integrity and fairness.

Our sincere condolences go to his family, relatives, his sisters and brothers at the bench and friends. Justice Legwaila was a scion of Mr and Mrs Legwaila in Mathathane in the Bobirwa Sub-district. His parents irked a living from farming. His father Madome John Legwaila was a London Missionary Society (LMS) Deacon and Evangelist. To this day, the LMS Church in the village is associated with him. I have it on good authority that the Legwailas’ were amongst the first to indulge in the luxury of tea-drinking in Mathathane and to send their children to school. They understood the value of education as the greatest equaliser.

Justice Legwaila started his primary school at the advanced age of 13 years. He completed his Form Five in 1966 at Moeding College. Thereafter, he was admitted at the University of Botswana Lesotho and Swaziland (UBLS) to do the degree of Bachelor of Laws (LLB), which he completed in 1972. He holds a Masters Degree (LLM) from the renowned Harvard University in the United States of America. In 1976 he married the love of his life Marty Isabelle Legwaila nee Makhuba. They are blessed with two children, Karabo (son) and Morongwa (daughter). As a student at the University of Botswana I had known Justice Legwaila as a public figure; then the Permanent Secretary to the President. I had personally taken pride in this achievement by one of our own. My first face to face meeting with him must have been in the year 1999, at the Industrial Court, in his chambers.

We had a pleasant encounter. I referred to him as “PSP” (even though he was a judge then); and he simply called me “moratho” meaning “my younger brother” in Sebirwa. Our meeting marked the beginning of a long lasting relationship at law and beyond. It is a relationship that challenged my thinking, nourished, enriched my approach to law, even as we would often differ sharply on the jurisprudential direction of the Industrial Court. This much is clear from the two judgements we simultaneously penned, involving more or less the same facts; but coming to different conclusions, in the cases of Jimson and Diau - both involving a tale of two security guards employed by BBS.

The task of judges is not easy at all. As it is often said, dispensation of justice is an attribute of God. Blessed are those few who have been bestowed with the honour and privilege to pass judgement over the affairs of their fellow human beings. Even God, who has created the human being, does not sit in judgement over our deeds until after he has recalled us; whence only he determines whether we deserve to be sent to heaven or hell. Judges have immense powers, including the power to take away a human being’s life. No other living mortal has this power. It is therefore important that they be humble, wise and learned. Justice Legwaila had all the above attributes. 

 

No judge ascends to the

bench as an ideological virgin

It is often said that no judge ascends to the bench as an ideological virgin. Every judge is partly a product of his upbringing and foundational values. Justice Legwaila was no exception. He was a deeply thoughtful and devoted practitioner of his faith from whose teachings he drew many of the central concepts of social justice which animated his life at the bench. As Judge President of the Industrial Court he understood that he was only the first amongst equals and an intellectual leader of his colleagues and that his core function was to craft and weave a jurisprudential tapestry that was consistent with our constitutional values.

For a long time, prior to him joining the Industrial Court, the court held the positon that illegal contracts are unenforceable at law. The result of this logic was that many illegal immigrants who were employed by unscrupulous employers well knowing their status, upon dismissal, were simply ejected without any benefits or payment. However, soon after he joined the Industrial Court he redirected the jurisprudence of the court so that those employees cannot be exploited. He crafted a remedy for them, based on the concept of unjust enrichment (see Olena Melefi v Blue Blends Investments PTY Ltd)

John D. Voelker J, said the following about judges: “Judges,… may be divided roughly into four classes; judges with neither head nor heart-they are to be avoided at all costs; judges with the head, but no heart- they are almost as bad; then judges with the heart but no head- risky but better than the first two; and finally, those judges who possess both a head and a heart.” I can say without fear of contradiction; that Justice Legwaila fell into the last group.

 

The ultimate objective of

law is the welfare of society

In the case of Rovos v Global Resorts Justice Legwaila quoting extensively from one of the foremost American jurist, by the name of Justice Benjamin Cardozo said that “the final course of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence.”

Later on in the case of Charabanguwa v Falcon Investments 2007 (3 BLR) Legwaila JP (as he then was) expressed himself with characteristic clarity when he said: “the law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal… we are thinking of the end of which the law serves, and fitting its rules to the task of service”.

 

Unequal power relationships between

employers and employees

Justice Legwaila was ever conscious of the importance of labour law. He understood that labour law is an extremely sensitive subject; based upon a political and economic compromise between organised labour; a very powerful socio-economic force on the one hand and the employers of labour an equally powerful socio-economic force on the other hand. He was always alive to the unequal power relations between the employers and employees and was committed to using law to redress this imbalance in order to achieve justice. In the case of Kenosi he stated that: “…this case was a glaring example of that inequality. While the respondent (employer) handed over the conduct of its case to one of the most powerful firms of attorneys, the applicant (employee) did not have the luxury of representation by a counsel (lawyer)”.

In the above case, the lawyer for the employer had raised a technical point relating to how the matter ended up in court. When the employee was asked to reply, she asked the court not to be distracted by technical issues but to attend to her complaints; as it turned out, the lawyer was dealing with a point that had nothing to do with her complaint. Legwaila JP agreed with the employee and proceeded to hear the merits of the case.

Justice Legwaila firmly believed that custom and history should not retard the growth of the law. He reasoned that custom and history have their place but they are subordinate to the ultimate purpose of law, being the welfare of society. Being a man of faith he constantly reminded us of an old legend that on occasion God prayed and his prayer was: “Be it my will that may justice be ruled by mercy”, adding that, this is the prayer that we, judges, need to utter at times “when the demon of formalism tempts the intellect with the lure of scientific order”.

Justice Legwaila upon being elevated to the Court of Appeal, the Apex Court of the land continued his quest for justice. This is clearly illustrated by his judgement in the case of Kealeboga and another v Kehumile and another which dealt with the rights of children to inherit under customary law. In that case Justice Legwaila held that children born out of wedlock are entitled to inherit from any of their parents.

It may be argued with some measure of credibility that Justice Legwaila’s legacy is in the area of employment law (illegal contracts of employees and customary law and inheritance). In 100 years from today, scholars will still talk about his contribution in the cases referred to above. In both cases he rewrote settled law. His decisions were breathtaking in their boldness. They challenged fundamentals to the core. He did so in an area traditionally resistant to change: employment and customary law. In the above cases, Legwaila JP rewrote the major premise and the terra nullius – was cast aside – a new chapter that recognises the legal rights of illegal immigrants and children born out of wedlock to inherit under customary law was rewritten.

One justice, I will not reveal her identity, upon reading the cases referred to above informed me that the judgements “were momentous” and that she is not sure she would have gone that far.

Legwaila JA understood, very well, that law, particularly customary law, in a developing country cannot remain static, but it shouldn’t be routinely and unnecessarily destabilised. He understood, perfectly, that if law is to be a living force, it must be dynamic and accommodating to change. It must adapt itself to fluid social norms and values and the ever changing perceptions of justice. This must be so because if the law is inflexible and lags behind social changes and the judges who interpret it also remain inflexible, wedded to the norms of the yesteryear, the people impatient that it no longer serves their needs, will inevitably cast it aside; and they may not do it in an orderly and dignified manner progressive judges would do.

 

Lessons of life

As we reflect upon his remarkable career at law, we have to ask, why would such a gifted lawyer who had reached the position of number one civil servant with all the attendant connections decide to join the bench, instead of making money in the commercial world? The answer is simple: material vanity never appealed to him – justice did. Justice Legwaila was a different breed of a judge. His heart and mind were in gear. He had a rare capacity to bring warring parties together – to smoke a peace pipe. He would smile wryly when lawyers threw thunderbolts at each other that seemed not to advance their case in any way, if you knew him and mastered his body language you would see that he had no interest in legal gymnastics as he would be searching for the justice of the case.

 

Virtues of a judge

From the above narrative on the life of Justice Legwaila, I’ve learnt a few virtues or qualities of a judge. The first quality is humility. Anyone who knew him would testify that he was humble to a fault. He was a perfect gentleman. This reminds me of the remarks of one Chief Justice who once said he wants his judges to be gentlemen and that if they knew a little law the better. Justice Legwaila was not just a perfect gentleman; he was wise and knowledgeable in the law. Speaking for myself, if I were the Chief Justice I would, in addition to the traditional requirements, want them humble, knowledgeable in the law, imbued with integrity, and have hearts and plenty of courage.

It was a Greek Philosopher Socrates, writing way back in the 4th Century, who said there are four qualities required in a judge- “to hear courteously, to answer wisely, to consider soberly and to decide impartially.” Judge Legwaila epitomised these values. To answer wisely is particularly important. To be able to answer wisely the judge must have fact finding skills and be analytical. To answer wisely he must not be too quick to enter the arena. He must be gifted in the art of listening. He must keep an open mind to the very end; having considered every argument and its implications. Only then can he answer wisely.

Patrick Devlin says; “I put impartiality before appearance of it simply because without the reality the appearance would not endure.” In truth however, appearance of impartiality is equally important, if not more, because, as it is often said; “The judge who gives the right judgement while appearing not to do so may be thrice blessed in heaven but on earth he is of no use at all.”

 

Personal reminisces

I will miss Justice Legwaila sorely. He was a man of many virtues. He believed in punctuality, invariably turning up at work at 7:30 a.m. On occasions, I would arrive at the office after 7:30 a.m. and my secretary would inform me that the JP called and he said you must call him back. Effectively, that meant I was to call to confirm that I was late. Over time as a result of this practice of calling me whenever he arrived at his office, I learned to arrive earlier so that I would be available when he called. He would often be very informal with me, calling me “Monna Key” whenever he wanted to start a conversation with me. Interestingly, all my previous Chief Justices often connected to me informally, the current CJ would say, “Monna Dingake” and former Chief Justice Nganunu would call me “Keith”, he could not say “Key”.

Legwaila JP would spot me riding in my official car, seated at the front passenger’s seat and the following day he would call me to order and say you are supposed to be seated at the back not at the front. Since then I always sit at the back. He had issues with my almost permanently clean shaven head suggesting that it may be inappropriate for a judge to keep no hair.

As far as I may recall he was not fond of flying. On a number of occasions whenever he had to fly to Maun for circuit sessions, we would debate the transport logistics and he would insist that he prefers to drive because should anything happen he may just find a way to escape possible fatality. We used to chat about his stint as Deputy Attorney General. He had glowing admiration for Attorney General Mokama. He informed me that during Mokama’s tenure the executive knew that only he could give them a legal opinion which they were not at liberty to second guess and change.

Legwaila JP had a sense of humour. Once we attended a funeral in my native village of Bobonong and one tribesman, my relative, who spotted us together, got quite excited and later told me: “I am told Monnamogolo (referring to the JP) has anointed you to take over from him”. When I told him he laughed, and said: “You must have told him I am not God, I don’t anoint”! The country has lost its finest and humble son. You have run your race Mokgomomg. May your soul rest in eternal peace and God give the family the strength to bear this unbearable pain. To all the people who loved and admired him, it may be as well to begin everyday with this prayer: 

“Oh God, give me the courage, to change the things I can change, grant me the serenity to accept the things I cannot change; and the wisdom to know the difference.”

So long my brother. So long, Mokgala bye…