The news of Lizo's passing shocked and saddened me deeply.
When news circulated of his passing I was in a state of denial, until I spoke to his sister, Nandi, who confirmed that it was true that her brother was no more. I had not met Lizo for a while since he last acted as a master of ceremonies at my birthday party in Sentlhane some years back.
I wish to take this opportunity to convey my heartfelt condolences to his family, relatives and friends for their loss. Lizo’s passing was also a great loss to the legal fraternity and the nation which he served with distinction and single-mindedness over the years.
Lizo was born on May 30, 1961. He did most of his primary and post-primary education in Botswana and his LLB from the University of Swaziland. At the time he commenced his LLB degree, the University College of Swaziland was a constituent part of the University of Botswana and Swaziland.
His legal career of over 30 years straddles legal practice, corporate sector and academia. He was destined for the bench because of the sheer force of his intellect and experience. But unlawful and unconstitutional conduct frustrated this from happening. Some say whispers in the dark frustrated his ascendance to the bench. Well if that be so, it would be most regrettable. That is why we need transparency in the appointment process so that whispers can be amplified, verified or debunked. The soul of justice does not lie in darkness.
All jurists and people of goodwill must shun public business that is conducted in darkness. It is wholly unjustifiable. I know Lizo loathed the practice. We are jurisprudentially poorer as a result. He would have been a great judge, matching and even exceeding the calibre of our departed and living giants such as Amissah JP, Aguda JA, Hayfron Benjamin CJ, Marumo J and Collins J, to mention only but a few.
Lizo was more than qualified to occupy the exalted office of Justice of our Courts. In all honesty I still cannot explain why, if not for luck, I ascended to the bench before him. From a perspective of mastery of the law he was head and shoulders above me; not to mention experience. The nation has been robbed of a man who would have transformed our jurisprudence for the better.
Lizo Zola Ngcongco, was an extra-ordinary lawyer – a man who it would not be an exaggeration to describe as a force of nature in matters legal – one of the smartest lawyers I ever had to contend with as an opponent in court.
He was the Sherlock Holmes of the courtroom – par excellence, imbued with amazing charisma, soaring oratorical skills, laced with deep diction and superb command of the English language. In his element, and making an appearance for the prosecution in a criminal trial he would effortlessly set defence counsel alight and thereafter douse the ashes with a hose.
Known for his razor-sharp mind and merciless cross examination in the worst of times and his confident delivery, Lizo’s reputation preceded him and made him the go to prosecutor of the State in high stakes criminal cases. A larger than life lawyer feared by those who found themselves in the courtroom ring against him. I should know better.
Once, we both had the privilege to appear before Justice Gyke Dako, that departed luminary of our bench, and it was proving difficult to convince the Judge. Justice Dako, somewhat unfairly, it seems to me, turned to Lizo and said: “Counsel for the State, I am having difficulty understanding your learned friend, what is his point? Lizo answered, with mischief written all over his face: “Well my Lord, with the greatest respect to my learned friend, the absurdity of his arguments is such that, it would be pretty difficult to follow what he is saying”. With that he sealed my fate.
As a prosecutor Lizo did not seek conviction against all costs. He would not tolerate the unacceptable practice of charging a person and investigating later! He was a true minister of justice. As a defence counsel he proved to be “Scarlet Pinpernel” and rescued many accused persons from long prison terms including even death. In the Courtroom he was a swaggering and daring soldier of justice.
Lizo had a photographic memory. My brother Justice Busang who worked with Lizo in the prosecution division once told me of an incident in which he was running late to Court and urgently needed an authority to support his arguments in Court. He called on Lizo to assist and without wasting time Lizo told him the full citation of the relevant authority, inclusive of the name of the parties, the year and the page number!
Lizo had many other qualities you need in a lawyer – a clarity of mind, determination, courage, solid knowledge of the law and fearlessness at all times. Not only was he a distinguished lawyer and wonderful raconteur. He was a delightful soul. He was some kind of
Lizo’s footprints and eminence shines through our law reports. Although he was an all rounder on matters legal, he would probably be remembered more as first class prosecutor.
He was involved in high profile criminal law cases of grave constitutional importance, far too many to mention all. I will only mention a few. These include such cases as: Bosch v The State; Kobedi v The State and Wassim Ahmed v Attorney General. There are other non-criminal cases in which Lizo proved his mantle as a competent all round lawyer. I remember particularly two constitutional law cases in which we did not agree.
In the case of Nelson Mathe v the Attorney General he persuaded the High Court that soldiers are subjected to two legal regimes - military and civil and that the detention of the applicant in a military custody (without admission to bail) pending the outcome of his court martial for breaches of military discipline did not amount to violation of a constitutional right to liberty/freedom in terms of Section 5 of the Constitution of Botswana. I did not agree with the conclusion of the Court. Almost a year after the decision in Mathe we locked horns again on a similar matter. I had hoped I will persuade the Court to turn its back against the decision in Mathe as representing bad law. I emerged from the boxing ring blood nosed.
Lizo was professional to the core. He litigated like a true gentleman and never misled the Court or pushed for a conviction even where the evidence is shaky. He was not a persecutor. He was a prosecutor – a true minister of justice.
He understood that as a lawyer his duty was to assist the court to achieve justice.
He understood that it was improper and unethical to prosecute a case in which it is clear that a conviction is not possible. Lizo understood that no lawyer should lend his assistance to the initiation of prosecution that is mala fide or for an ulterior purpose.
Other than his professionalism, ethical conduct and impeccable etiquette, Lizo was a great human being and a family man. He loved his family deeply. He was also humorous to a fault. Once I engaged him on his beautiful young sister, Nandi, my friend of many years, whom he adored deeply. I asked him whether he knew that my best friend, Maswikiti, his nom de plume, had best of intentions, during our University days, and whether being the great advocate he is can he come to my friend’s assistance. He laughed and said to me, ‘my brother let's agree I am without jurisdiction on those matters!”
As I conclude this tribute I wish to record my gratitude for the role Lizo played at my last birthday party at Senthane, as the Master of Ceremony. His presence and charisma was appreciated by everyone. Little did I know that would be our last encounter. Thank you for that special chat we had after my friend Dick Bayford broke down and was unable to finish his speech as he recalled our journey together. We attempted to reflect what could have been in Dick’s mind and he offered all sorts of theories (some quite hilarious and bizarre) and we broke down laughing until we cried. Thereafter he turned to me and said: “Dick is such a sweet soul – I guess you connected deeply”. Well that was true.
We will all sorely miss Lizo. Death may have succeeded to physically separate us, but it cannot succeed to kill his name and wipe out his good deeds. Farewell my friend. You were a cut above the rest. I have accepted it was your time to rest.
You ran your race beautifully and achieved your purpose in life. As your sister Nandi said, you identified early on your life’s purpose and went about executing God’s mandate with great passion and singlemindedness. You revelled in the law. That was your calling!
Parting is always painful. But we celebrate your glorious life and contribution to humanity. As they say there is a time for every matter under heaven. A time to be born and a time to die. God bless the memory of Lizo. He was a blessing to our lives. His commitment to justice was beyond dispute. We are poorer without him in our midst. Farewell the Sherlock Holmes of the Courtroom! May His Soul Rest in Eternal Peace.
*Professor Justice Key Dingake is a former High Court Judge of Botswana