05 Feb 2020

The chairperson of Law Society of Botswana, Mr Diba Diba says high costs of litigation can be avoided by practicing good conduct in court.

He said this at the opening of the legal year in Gaborone on February 4.

Mr Diba said it had become apparent that some legal practitioners failed to attend court as scheduled or arrived late without satisfactory explanations, which he said was disrespectful and costly to the clients, the other party and the court at large.

He said there were some judges and magistrates who postponed matters at the last minute, without even proffering a reason, and in some instances, this happened when the legal practitioner involved was already in court.

Mr Diba said there were also some judicial officers who commenced proceedings long after the set time, causing long waiting periods at court by legal practitioners.

“Postponements and delays in the commencement of proceedings lead to an increase in the cost of litigation and ultimately delay in conclusion of the matter,” he said, adding that in all this, it was the client who bore the brunt through increase in cost of litigation.

Mr Diba also expressed a concern with a widespread narrative that legal service in Botswana was prohibitively expensive.

“While the society accepts that there are some unscrupulous legal practitioners who overcharge members of the public, these are not necessarily in the majority, but the notoriety of a few bad apples will invariably get most attention,” he said.

He said overcharging may amount to serious professional misconduct, and depending on the amount involved, a legal practitioner may be disbarred if found guilty.

Mr Diba revealed that over the years, the main challenge had been having to deal with the breach of the ethics of the profession and non-compliance with the dictates of the act.

He said in recent years, the disciplinary committee (DC) recommended that several attorneys be disbarred for serious misconduct, revealing that five such recommendations were still being processed by council and seven were already at varying stages of the disbarment process.

He further said five attorneys had been disbarred in the last five years, with 10 firms placed on curatorship, following non-compliance and abandonment of firms by legal practitioners in the last two years.

Mr Diba said with nine more legal practitioners currently before the DC following being placed under curatorship, it was saddening as the numbers might suggest that as a profession, to which only the noble and worthy should belong, had lost ethical and moral compass.

“To those few of my learned colleagues who might have forgotten, let me remind you that law and justice, not financial gain, should be our guiding principle,” he said.

Mr Diba acknowledged that legal practitioners were at the very bottom in the payment structure when compared to other professionals, but that should not encourage misconduct.

In an attempt to ensure that court proceedings run smoothly and on time, he said the society had played a leading role in agitating for a process of appointment of judges in line with international standards.

“The society has agitated for separation of powers, transparency and meritocracy right up to the Court of Appeal, which is why it is regrettable that after initial success, the Judicial Service Commission, in its wisdom, decided to revert to a process that our members have bemoaned as lacking in transparency,” he said.

He said the society had also advocated for changes in finalisation of cases, adding that at every ceremony of the opening of the legal year, the society brought up the matter.

Mr Diba said there were many complainants who attended mentions and status hearings, wasting the court’s time, only to withdraw cases at the end of the day, something which made the court seem like it was failing litigants, when it was the other way round.

Meanwhile, the Attorney General, Advocate Abrahm Keetshabe said his office continued to maintain a cordial relationship with the Law Society of Botswana; exchanging ideas and thoughts on how they could jointly improve and speed up the delivery of legal services in the country.

He said he was aware of the longevity of the justice pipeline, which made it unbearable.

“The longer a case is delayed, the more the injustice that is suffered by the litigants, hence their resolve with the Law Society of Botswana  to relentlessly pursue the backlog of cases, in conjunction with the judiciary.

Mr Keetshabe said it was true that justice was sweetest when freshest, explaining that in isolated cases, the legal system itself could arguably be accused of generating injustice; injustice on account of delayed justice, when the final verdict becomes an academic exercise.

“The judiciary in Botswana should see itself as the goalkeeper of peace; and judges should, individually and collectively, jealousy guard against erosion and deprivation of civil liberties to avoid an increase in costs of litigation,” he said. ENDS