05 Feb 2014

Chairperson of the Law Society of Botswana, Mr Lawrence Lecha has reiterated the importance of good workling relations between the bench and the bar saying it is critical for the delivery of justice.

Speaking at official opening of the Legal Year on February 4, Mr Lecha complained that the relations between the bench and bar were poor. He said 2013 witnessed some nasty incidents in which magistrates, especially junior ones, bullied legal practitioners, litigants and members of the public.

Mr Lecha said there were numerous reports of harassment and even detention of members of the public by “junior magistrates who seem to be drunk with power”.

He said these magistrates had developed a tendency to issue warrants of arrest willy-nilly against all and sundry, be it legal practitioners, prosecutors, witnesses and even innocent members of the public who visited the courts.

Mr Lecha further explained that it was these same magistrates who set the dates of hearing and failed to show up at court on the day of the trail or at times came to court hours late and would not bother to even proffer any excuse or apology. He said this was obviously a great cost to the litigants from both sides. 

Should it be the litigants who do not attend or come late for court, they would easily be incarcerated at the order of the same magistrate.

He said such magistrates lacked the requisite character traits of a judicial officer adding that this was one more reason why appointment of judicial officers, especially High Court Judges, should be done in a transparent manner in order to avoid those with known deficient character traits ending up on the bench.

Regarding forum shopping, Mr Lecha explained that it was the appointment of underperforming High Court judges to the bench that led to this generally undesirable practice of forum shopping.

“The Law Society is quite concerned that while there is this discussion on forum shopping and the pointing of fingers at legal practitioners and by extension public litigants, there is very little mention of perceptions of forum shopping in matters where government is a litigant”.

He said care needed to be taken that all measures that were being undertaken to enhance transparency at the High Court such as electronic allocation of cases should similarly be employed at the Court of Appeal as this was the last point where a litigant got closer of his matter.

On other issues, Mr Lecha said securing dates of hearing continued to be a challenge even for simple motion matters while at the same time, the delay in the delivery of judgements remained a problem that simply refused to go away.

In some instances, he said, matters that were filed on urgency were heard days later and when a judgement was ultimately delivered with days, sometimes weeks having passed by, the pronouncement could be that there was no urgency.

He suggested that a determination on the urgency always be delivered immediately to allow parties to explore any other option available to remedy what they deemed urgent.

He also suggested that judges who had a high number of outstanding judgements should not be allocated any more matters until the number of cases was brought down to an agreed level.

He said the Law Society of Botswana proposed that a Judicial Service Commission should make a case for the increase of judges if judges were overwhelmed by cases before them adding that judges could have attorneys employed for them as “Judge Clerks” or Research Assistants”.

Regarding the Legal Aid project which was in its third year, Mr Lecha said care should be taken to ensure that only qualified legal practitioners entitled to practice were entrusted with legal aid matters. He said by appointing unqualified persons or paralegals, the government would be simply short-changing the beneficiaries by giving them below par service.

Mr Lecha explained that there should be consistency of treatment of legal practitioners in terms of application of the fee structures as per Legal Aid Botswana guidelines such that all practitioners benefited from Judicare only after serving their pro bono hours. ENDS