The Law Society of Botswana (LSB) is seeking an order to have its appeal against a High Court decree for the issuance of a practising certificate to a prominent law firm to be urgently heard.
LSB wants an expedited appeal against a court order that went against its obligations and mandate to ensure compliance and adherence to the Legal Practitioners Act that deemed Collins Newman & Co and its managing partner, Parks Tafa, fell short of meeting.
The society’s decision comes barely a few weeks after it filed a notice of appeal at the Court of Appeal (CoA) to overturn the High Court’s decision.
In its founding affidavit, the LSB is requesting for the appeal to be slotted in the October session of CoA or on an alternative date.
“The expedited appeal is to ensure that the uncertainty created by (this) judgement of the court a quo should not be permitted to continue beyond the end of the year,” reads the affidavit.
The main contention for the society in its appeal is that the court had failed to recognise that as a regulatory body it has a statutory obligation and a mandate to ensure compliance with the Legal Practitioners Act.
The society’s explanation is that Tafa, who is the former Botswana Democratic Party legal adviser, did not comply with the act and was not issued a practising certificate, and as a result the Master of the High Court removed him from the Roll.
In its initial notice of appeal, the LSB wants the order of the High Court set aside and its appeal upheld with costs.
However, Tafa in his replying affidavit did not agree with the society’s decision for an expedited appeal.
According to his documents filed on September 16, 2019, Tafa disputed that the LSB in its founding affidavit had disclosed facts, which failed to show there were exceptional circumstances that would make the society suffer prejudice if the appeal was not immediately heard.
“We dispute that the applicants show good and substantial grounds for the indulgence sought, over and above the normal inconvenience and prejudice or irremediable suffered by all appellants in delayed appeals,” he said.
Tafa also argued that the society did not demonstrate any practicality of an expedited appeal and does not show that it is in the interest of justice to grant it, more so that they had failed to show any reasonable prospect of success on appeal.
Further, Tafa disputed that the judgement of the High Court created legal uncertainty in the regulation of trust accounts, or that it created a precedent for attorneys who are caught out with deficiencies to make good the deficiency without any explanation or accountability.
“The judgement specifically dealt with a factual situation where fidelity fund certificates and practising certificates were refused on purported grounds relied on in this matter of which the court found were not authorised by the Act,” he pointed out.
He explained that the judgement did not preclude the society and its functionaries from taking appropriate lawful action under other provisions of the Act, such as through disciplinary procedures and where appropriate applying to court for an order to suspend or remove any errant practitioner from practice.
George Simanga, a certified auditor of the Abson Partners, as curator, had taken control and administered the trust accounts of Collins Newman & Co.
He successfully challenged the decision and the court ruled that Tafa and his firm be issued with practising certificates.