�Annus horribilis for the Botswana judiciary�
Correspondent | Thursday February 9, 2017 12:05
This year is no different, only perhaps more urgent.
Permit me His/your Lordship to start as always with the mandate of the Law Society. We intend to proceed in this way until we are all singing from the same hymn book. The mandate of the Society is, in a nutshell, about ensuring professional standards through amongst others regulation and continuing legal education. As has been stated before, a Law Society is also a guardian of the Rule of Law in any society. No lawyer worth his / her salt can claim to have no interest in the Rule of Law.
Various Chairpersons of the Society at have at this very same forum always decried the seeming reluctance of the Government to amend the Legal Practitioners Act. It is unfortunate that yet again this year I report that there has been no movement on this item. As has been stated repeatedly, failure to amend the LPA hampers the Society’s ability and capacity to be able to discharge its mandate. Notwithstanding such challenges, the Society continues to discharge its mandate with some success, especially on the regulatory front. /Despite the challenges and the apparent deliberate barriers, the Society will remain steadfast in its endeavour to ensure that the public has trust and confidence in the profession by taking action against those of our members who err.
The Regulatory environment presented some challenges in the past year. As some may be aware, the High Court handed down a judgement which in the view of Council created uncertainty in the process of Disciplinary Proceedings. The Society resolved that until there was clarity on the matter it would be futile to proceed with the Disciplinary Processes and suspended these pending the outcome of the Court of Appeal Judgement. This Court of Appeal Judgement was delivered last week on the February 02, 2017 and we are grateful for the clarity and certainty that this Judgement brings. The work of the Disciplinary Committee will restart with immediate effect.
In the year 2016, as with others previously, some legal practitioners failed to comply with the regulatory requirements for practising law. In trying to curb this occurrence, the Law Society has since 2012 been publishing names of such at the beginning of the legal year and indeed this is still in place. Despite publication, some of these lawyers continue to practice without Practicing Certificates with impunity. It is important that members of the public take note of the list when it is published to avoid falling prey of/to these/such lawyers. The Courts as well will greatly assist the public if the said errant lawyers are not allowed to register process at the Registries or even heard. This is already the case at the Registrars of Deeds.
At the recent Annual General Meeting (AGM) of the Society in December 2016, members agreed that it is important for all legal practitioners to realise that adherence to the law, rules and regulations of the profession as well as ethical conduct in general is what makes the profession “honourable”. It is why the public trusts us with their hard earned money, their confidential information and trust that they will receive proper advice. The AGM resolved that none among practitioners should be allowed to tarnish the name of the profession.
In this regard, the AGM adopted the Society’s action where eleven firms –in which the sole practitioners did not have practising certificates, were placed under curatorship. The Society will continue to ensure effective discipline of those that fall foul of the provisions and regulations of the LPA whilst protecting and supporting those of our members who consistently comply with the provisions of the LPA as well as its regulations. We assure such - attorneys that the Society will do all that is necessary to protect them when their professional area is threatened such as the idea being mooted of handing over certain conveyancing activities to persons not professionally qualified to do this work.
The land policy of 2015 has made a recommendation that conveyancing of alienation on land rights at the Deeds Registry, which has been the legal monopoly of conveyancers, be removed. It is the view of the Ministry that this monopoly has resulted in exorbitant fees being charged for services. In order to address this, it is proposed that standard forms will be created for some registrable transactions where owners in addition to conveyancers will be allowed to prepare and lodge such documents with Registrar of Deeds. Some functions of the Deeds Registry would also be decentralised to land authorities
3.8 The Society observes that the Deeds Registry is a sole record of land ownership and or other real rights in land. It is our view that modern conveyancing is far too complex to be left under the control of non-professionals without specialised legal training and effectively what the policy intends to do, is take us back centuries. This, it is the respectful view of the Society, will likely result in uncertainty in security of title, multiple disputes and law suits.
3.9 The fees for conveyancing are contained in the Deeds Registry Regulations published in October 2004. Through a Statutory Instrument in that year, fees are prescribed for each and every task that leads to or results in a registration of a deed or document in the Deeds Registry.
Conveyancers and Notaries Public are prohibited from charging higher or lower fees and contravention constitutes an act of professional misconduct. It should be noted that the fees for conveyancers are today exactly where they were in 2004, some 12 to 13 years since. The fee issue is therefore a red herring or at best a genuinely wrong perception because on a pyramid, compared with all other professionals such as Estate Agents, Valuers and Architects, Conveyances, Notaries Public - Attorneys are generally at the bottom of the pyramid in terms of the fees that they are allowed to charge for services rendered to clients. In some instances even lower than Sheriff’s Deputies!
The Society will therefore engage with the Ministry to ensure that it is disabused of this incorrect notion that Notaries and Conveyancers charge exorbitant fees.
The Society has noted with concern an increasing trend where in-house Counsel are providing legal services to third parties and not their employer. This is contrary to all tenets and protocols of the practice of law and the profession.
3.14 The Society has interpreted provisions of the LPA to exclude in-house attorneys from eligibility to hold a Practicing Certificate.
3.15 Whilst this has caused great consternation to those affected, the position of the Society is that only an amendment of the LPA will change the current interpretation. Such amendment should however include provisions that clearly delineate the practice by in-house Counsel. The Society will in due course meet with such in-house Counsel to seek a way forward.
Attorneys in the employ of government and parastatals are members of the Law Society. Whilst this group enjoys full benefits of membership including voting and holding office, they are exempt from holding a practising certificate and from payment of all fees and subscriptions provided for in the LPA. In our view there is no plausible reason for the exemption because in all other professions, all members are obliged to pay their dues to the professional body they belong to in order to be able to practice.
The Society has over the years engaged with Government over the issue of the exemption without success. It has therefore resolved that it will again attempt to engage during this quarter and if the matter still remains unresolved, may resort to litigation as the exemption is discriminatory and may be unconstitutional.
“It is said that in ancient China, Judges were forbidden to sit for more than 2 hours after having a decent meal and this, on the assumption that a full stomach turns to incline one to leniency while an empty stomach will do exactly the reverse”. Over the years, the Society has called for a change in the manner in which our Judges are appointed and acknowledges that changes for the better have been made in so far as positions are advertised and competed for.
However, the Society believes that Judges should be appointed on merit as well as integrity and suitability of character and temperament. Knowledge of the law, the balance of mind, the ability to brush aside the inessential and drive to the heart of a case are crucial. The work of the Judiciary is too important to entrust to those of doubtful competence and a bad Judge may do irreparable damage since there are some judicial errors which even the most elaborate system of appeals cannot remedy. This is particularly so because bad Judges are capable of shaking public confidence in the Judiciary.
The Society has ongoing litigation with the Judicial Service Commission (JSC) on issues relating to its mandate. We have expressed concern that in such cases, it is either the Honourable Chief Justice, who is chairman of the Commission, who empanels the bench to decide a matter in which he is a party. This practice is wholly unsatisfactory as it creates a perception of conflict of interest.
4.5 Similarly, the Society notes that in appeals in which the JSC is a party, the Judge President who is a member of JSC, empanels the court to hear a matter despite being a party. Again this creates a perception of conflict of interest.
At the Ceremony of the Opening of the Legal Year in 2016 the Society announced that it intended to launch litigation challenging the then recent appointment of one of the Judges of the Court of Appeal. Indeed the Society went ahead and filed a Statutory Notice in terms of the State Proceedings Act.
Whilst the Society is yet to proceed with the action, the announcement caused quite some agitation to the extent that the JP publicly called our then Chairman “rude” and offered a public apology to the affected Judge. Given the foregoing, it was rather surprising that the JP included the said Judge in all three (3) appeals of the Law Society during the just ended session. If this does-not make for perception of conflict of interest and possible impartiality what could. At the opening of the just ended session of the Court of Appeal, the JP made comments reflecting his views on separation of powers and the role of the Court of Appeal. What value these comments, which did not seem to have any relevance brought, is anybody’s guess, but we do have our own suspicions. It is our ardent hope that whatever the intention was has not been achieved. The Society notes that if the credibility of the Judiciary in Botswana is to be ensured episodes such as this need to be avoided at all costs.
‘Annus horribilis for the
Botswana judiciary’
The Society believes that the role of the Court of Appeal is to interpret the law in order to ensure clarity and certainty. Its role is not to provide a “stabilizing factor” as stated by the JP. This role as envisaged by the JP sends a somewhat chilling and sinister message to those who litigate against the Executive and Judges who preside over the matters. The Society believes that it must remain work in progress, going forward, as to how such panels are to be created where the JSC is a party and to the satisfaction of all the litigants involved. The JSC’s and the President’s interpretation of Constitution of Botswana as to who between the JSC and the President has the final say in the selection of Judges has kept many a senior lawyer away from interest to join the bench for fear of rejection for unknown reasons. The issue is sub judice therefore the less said the better.
The Society wishes to note yet another matter involving the JSC launched by the Manual Workers Union before the High Court in relation to the appointment of the Judges of Appeal. Again no further comment may be made on the basis that the same is sub-judice.
At the legal opening of the legal year in the 2016, the Society made a point that in the dispensation of justice, the presiding officers of court must reflect the demographics of the society that they serve. Further, the society noted and still notes that this remains a challenge not so much in the High Court as in the Court of Appeal. In that court gender, race and age are disproportionate to the demographics of the country. In making the above statement, the Society was hauled over coals, tarred, feathered and shamed as outcasts who were ill-mannered, racist and xenophobic.
The Executive was so agitated that a statement was immediately issued expressing the above sentiments and notifying the Society of an immediate embargo in relations. The Society however believes and continues to believe that is it only right and proper and in keeping with international standards, that our Court of Appeal should reflect who we are and in so saying, it can hardly be said to be xenophobic and or racist in any manner. What the Society desires and calls for should appear to many a natural resolve because the Court of Appeal is a public institution like all others. We are told, and stand to be corrected, that President Obama has publicly stated that his nomination in 2009 of Justice Sonia Sotomayor (a Latino woman) to the Supreme Court was largely influenced by the need for diversity and was in-keeping with this concept that the Supreme Court of the USA should reflect the demographics of that country. There was no outcry. Why is there one now?
Botswana has had a national vision which ended in 2016 aptly called Vision 2016. Such hallowed document encapsulates a nation that is informed, educated, compassionate, transparent and open, in a nutshell; Vision 2016 embodied our society’s hopes and aspirations for the future and indeed generations to come. It is unlikely that the Vision in the making to cover the period up to 2032 will not similarly contain these aspirations.
It is no longer in doubt that Judges make law. Law is not an abstract science to the extent that Judges are influenced by their own values to reach a decision. In that regard, the Court of Appeal judgements must necessarily reflect our hopes, aspirations and mores. The jurisprudence coming therefrom must carry our desires as encapsulated in Vision 2016.
The current procedure for appointment of Justices of Appeal is one of secrecy therefore not transparent. The secrecy leaves the society uniformed on the process and the qualities considered that makes a person suited to be a Judge of Appeal. It is a well-kept secret only known to the JSC and yet the Judges do make law. As a public institution, the Court of Appeal should not be immune from our vision of an enlightened, open, informed and transparent nation. The appointment of the Judges of the Appeal therefore ought to follow the established procedure for calling for the advertisement and for anyone interested, including and especially serving Judges of the High Court to apply.
The society therefore denies that it is xenophobic and / or racist and instead, notes that over the years since the birth of this republic, various Judges from the Commonwealth who constituted the Court of Appeal, made judgements of great jurisdictional value that amongst others broadened human rights and expanded human dignity. Indeed it was an all foreign Court of Appeal that decided the matter of Dow v Attorney General and came to the conclusion that the Citizenship Act was unconstitutional in so far as it gave different rights to men and woman. So too were the majority of Judges in Mmusi v Ramantele foreign.
As over the years, the Society has noted with concern delayed delivery of judgements. Despite assurance that all is well provided by the AOJ through statistics, many legal practitioners, litigants and accused persons have a different story to tell. Matters under Certificate of Urgency and Summary Judgments sometimes have a judgement delivered more than a year after the proceedings were launched and arguments completed. This therefore defeats the purpose of both procedures to the detriment of litigants. Notwithstanding praises that may be showered upon the judicial case management system, for as long as the system is not followed to the letter, it will not deliver.
This in large measure is due to matters being repeatedly set down for status hearings while the court or litigants or legal practitioners avoid going to the merits of the matter. Such repeated appearances come at a cost to the litigants who have to bear legal fees. The Society has therefore resolved to create measures to name Judges whose judgements are delayed beyond the 90 days from the time that the matter is concluded. The 90 days is a measure that the High Court has set for itself for delivery of judgements. The Society will publish details of the cases indicating dates when the matter was concluded as well as the name of the concerned Judge. It is common cause that such practice above does not apply to all the Judges. It will therefore be proper to name the concerned the Judges and not paint the entire Bench with one brush.
The Society implores the Honourable Chief Justice to take a more effective approach on this matter as accusations by some Judges that such action would amount judicial interference is simply not correct.
A demand by the CJ as administrative head of the Judiciary that a Judge should deliver a judgement in a timely manner cannot by any stretch of imagination amount to judicial interference as he does tell the Judge how to decide a matter. The Society is represented in a committee that deals with amongst others the efficiency of Judicial Case Management System. The Society’s suggestions, such as that Judges should set aside Mondays and Fridays for Motion Roll as was the case in the past before JCM. Such motion roll would have not less than 40 matters in order to dispose of the matters that are capable of being dealt with on motion have not seen light of day. The AOJ’s position is that such would be over prescriptive. The Society however believes that this would assist in reducing the backlog and ensure that cases that are capable of being dealt with in summary fashion or through short arguments are concluded.
Over the years the Society has sought detailed statistics of case disposal rates from AOJ, despite agreement that this would be provided, we are yet to receive this report which is in our view a public document.
This concern is shared with other stakeholders in Business Botswana. A detailed segregated report on statistics is critical to determine the rate of disposal of cases. It will for example make a distinction and differentiate cases that are simply dismissed for want of prosecution, cases that the parties have settled, cases where Orders have been made but judgement is outstanding from cases that are actually heard either by way of application or trial by the court and determined by delivery of a judgement. A phenomenon that we know has existed over time but is only now seemingly getting the much needed attention is the apparent collapse of Governance at State Owned Enterprises. The collapse is in the view of Society, deliberate and intended to facilitate corruption. The collapse, like with appointment of Judges, is due to a flawed process of appointment of Boards (where they are in fact appointed). Boards are appointed on patronage and political considerations instead of merit. Subsequent to that, governance requirements, including statutory ones are flouted with impunity.
The Society believes that lawyers, individually, collectively and through the Society should become more engaged in this area as the malaise negatively affects the economy and indeed offends against the Rule of Law. The past two years can best be described as annus horribilis for the Botswana judiciary. Four judges of the High Court remain on suspension and fight to vindicate their rights in the High Court. We are now seven months shy of two years since the suspension. Two more Judges, one from the High Court and the other from Appeal court, have issued a notice to sue the AOJ on the same facts. The Society has always maintained that a flawed process of appointment of Judges is detrimental to a sound Judiciary.
We are now reaping the fruits of ignoring long standing practice with an increasing number of Judgements that have no jurisprudential value coming out of our Courts. Breaking with the past, this is also true for the Court of Appeal. The Society believes the Court of Appeal should move away from being seasonal as such practice does not allow Appeal judges sufficient time to consider matters. They are called upon to consider matters in indecent haste.
Judges are more and more often postponing mundane matters that do not require argument by up to a year or more.
As was noted at the recent AGM, this has quickly eroded the confidence in our justice system such that lawyers routinely advise clients to attempt settlement and for those with means to go the Arbitration route. Whilst this negatively affects the average Motswana, this cannot also be good for business and investment. Evidently, this Session of the Court of Appeal appears to have the largest number of civil appeals in recent memory, if not ever. We believe that this is a direct result of appointments at the High Court that are not based on merit but amongst others on patronage. Finally Judicial Officers continue to display some intemperate behaviour towards legal practitioners, sometimes in the presence of their clients. As has previously been said at this same forum, disrespect of a legal practitioner not only demeans such practitioner but does the same to the client. Judicial Officers are therefore implored to treat practitioners with dignity in the same manner that they expect to be done to them. They should be the guiding light for practitioners.
In conclusion, the society makes a clarion call to all stakeholders in the justice system that:
l It is time to introspect and honestly consider our position based on the good of the country and not personal interests;
l It is time to settle the incessant divisions and wars within the judiciary itself and between and amongst stakeholders and smoke a peace pipe and bury the hatchet so to speak; and
l The matter of all the Judges must be settled and with each party retaining its integrity and for the judiciary to return to conditions of normalcy. In these matters, there will be no heroes and villains nor victors and vanquished as all will be scarred and in instances permanently. All of us individually and collectively, are not bigger than the nation that we all strive to serve and any failure to settle, the nation will require a full explanation as to what has accrued to it by reason of what has been reduced to a chess game.
Time hurries on, and leaves that are green turn to brown and whither with the wind and they crumble in your hands. Surely, any ruffled feathers must have been soothed because time is a great healer. Ladies and Gentlemen, in conclusion, it is now my pleasure to move that the Legal Year for 2017 be declared open.
KGALALELO MONTHE *
*Kgalalelo Monthe is the LSB chairperson