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Court orders investigation against attorney for suspicious conduct

Moroka has referred the matter to the law Society
The Law Society of Botswana (LSB) has been instructed to investigate attorney, Bathusitse Mooketsi from Ngitami Law Office for suspicious conduct.

Francistown High Court Judge, Lot Moroka wants Mooketsi investigated for obtaining allegedly writ of executions against a client fraudulently.

Mooketsi got a conduct slap when she was appealing a Magistrate ruling that set aside a writ of execution she obtained against a client, Mosetsanagape Mosienyane despite having never represented her in court.

Moroka when ruling on the matter recently said it would be to attribute fraud to Mooketsi without adequate investigation but that she needed to be investigated for her conduct as it has invited suspicion.

Moroka said Mooketsi ought to have known that she owed fidelity to her clients whose interest she has to protect.

He explained that Mooketsi could not cloth herself with the status of a creditor when no judgment had been granted in her favour.

“She put the client out of pocket needlessly. The magistrate was correct in holding that such conduct called for costs on attorney and client scale,” Moroka said. Moroka said as the legal profession was a honourable profession and that where a suggestion of impropriety was made against an attorney it ought to be investigated and laid to rest in public interest. This means that the gravity of the matter should not be allowed to pass without further enquiry from the LSB.

Moroka read that it was appalling that the attorney fought to enforce a writ of execution issued on the strength of bill of costs before the magistrate court while seeking provisional sentence judgement at a different court based on the same claim of bill of costs.

“This suggests that she knew she was not entitled to issue a writ of execution without judgement. She ought to be afforded an opportunity to explain herself in a properly instituted enquiry,” he said.

The judge noted that at the time the attorney caused the writ of execution to be issued against the client had she not received the timely assistance of attorney Uyapo Ndadi the writ would most probably have been executed against her.

Moroka said the magistrate could be excused

for opining that it was fraud even though it could not be easily inferred, as it could just be ignorance. The backdrop of the case is that Mosienyane first through Mokobi attorneys sued Tebogo Muzhoba for breach of contract arising from a lease agreement. Mid trial she discontinued the agency of Mokobi attorneys and instructed Ngitami Law Office to represent her.

She succeeded in her application and costs were awarded in her favour against Muzhoba.

Having been awarded the costs and having settled her legal bill with the law office she expected a bill of costs to be passed to her for either payment or taxation.

However the Ngitami Attorneys never did so and was forced to file an application to seek orders compelling the firm to file a bill of costs for taxation. And on the day of hearing, attorney Mooketsi introduced herself as a friend of the court and protested that Ngitami Attorneys were not joined as a party and asked the application to be dismissed, which the court did.

However on the same day, attorney Mooketsi duly filed a bill of costs between Mosienyane and Muzhoba, which accounted for work attorney Mooketsi did in favour of the client ,Mosienyane resulting in the judgement being granted in her favour.

Then Mooketsi, armed with taxed bill of costs ,in a strange twist of logic caused the Clerk of Court to issue a writ of execution against her own client. With a writ of execution having been issued in her favour, she instructed Deputy Sheriff to execute the writ against the client.

Meanwhile, in causing the writ to be issued attorney Mooketsi had substituted herself as the beneficiary calling herself the judgement creditor and the client’s judgement debtor.

According to court documents, no court of law had granted judgement in her favour for that.

Fearing for her property, the client Mosienyane sought legal help at Ndadi Law Firm, which made an urgent application to court, which as a result overturned the writ of execution.




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