EX PARTE GAREKWE 2004 (2) BLR 396 (HC)

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Citation: 2004 (2) BLR 396 (HC)
Court: High Court, Francistown
Case No: Misca No F33 of 2004
Judge: Chinhengo J
Judgment Date: March 26, 2004
Counsel:
B Sechele for the petitioner. P Ntalabgwe for the State.
Flynote
Legal practitioners - Attorney - Re-admission - Application for - Considerations same as for admission - Applicant to satisfy court that he holding requisite qualifications, that he having passed requisite practical examination and that he a  C  fit a proper person - Court retaining residual discretion - In determining whether petitioner fit and proper person to be admitted, court to enquire as to nature and degree of conduct occasioning conduct which rendering petitioner not fit and proper previously and whether such defect of character or attitude had been genuinely, completely and permanently reformed - Legal Practitioners Act (Cap 61:01), ss 10 and 11.  D
Headnote
The applicant applied to be admitted as an attorney of the courts of Botswana and that the Registrar of the High Court enrol him as such. The applicant had been charged and convicted in 1989 of an offence arising from financial irregularities and involving dishonesty. The applicant had previously applied for admission to practice as an attorney and had been duly admitted. His admission had, however, been withdrawn on the basis that he was  E  not a fit and proper person, given the conviction in 1989.
Held: (1) The court had a residual discretion in the matter of the admission of any person to practice as an attorney derived from s 11 of the Legal Practitioners Act (Cap 61:01). Section 10 of the Act provided that any person holding the requisite qualifications in terms of the Act may apply in writing for admission and enrolment. A practitioner was required to satisfy the court in regard to those qualifications. He or she had to be a fit and proper  F  person, have obtained the requisite law degree from the specified universities and have passed the prescribed practical examination.
(2) The Act did not have any specific provisions in respect to re-admission but the considerations should be the same as for admission.
(3) The requirement that a person has certain qualifications was a matter of fact, which, once established, left  G  the court with no discretion but to admit the practitioner. Where a petitioner had further shown that he was a fit and proper person, essentially a factual enquiry, there was no room, outside s 11 of the Act, for the exercise of discretion by the court.
(4) Section 11 of the Act conferred a residual discretion on the court. The use of the word 'may' was a clear indication that even where a petitioner had satisfied the court that he had the requisite qualifications, his admission remained a matter in the discretion of the court.  H
(5) In deciding whether the petitioner was a fit and proper person, there were two enquiries which the court had to make. The first related to the nature and degree of conduct which occasioned the petitioner's conviction, the second was whether there was a genuine, complete and permanent reformation on the applicant's part. The latter involved an inquiry into  whether the defect of character or attitude which had led to the petitioner being judged not fit and proper, no  A  longer existed. Ex parte Aarons (Law Society, Transvaal, Intervening) 1985 (3) SA 286 (T).
(6) The instant petitioner had completed his LLB degree four years after he had been convicted and sentenced. He had become aware of the high professional standards required of a legal practitioner long after his conviction and sentence and had to be viewed differently from a legal practitioner who committed an offence whilst practising law. The petitioner's clean record over 13 years since his conviction and sentence were a strong  B  indication that he had reformed. The petitioner was found to be a fit and proper person and his application for re-admission granted.
Case Information
Cases referred to:
Ex parte Aarons (Law Society, Transvaal, Intervening) 1985 (3) SA 286 (T)  C
Ex parte Potgieter 1958 (2) SA 220 (T)
Ex parte Ross 1971 (1) SA 281 (T)
Garekwe v The State [1993] BLR 94
Garekwe v The State (Crim App 8/93), unreported
In re: Chikweche 1995 (1) ZLR 235 (S)  D
Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T)
Kudo v Cape Law Society 1977 (4) SA 659 (A)
Lambert v Incorporated Law Society 1912 TPD 688
Law Society, Transvaal v Behrman 1981 (4) SA 538 (A)
Nyembezi v Law Society, Natal 1981 (2) SA 752 (A)
Van Heerden v Cape Law Society 1923 CPD 492  E
APPLICATION for re-admission as a legal practitioner. The facts are sufficiently set out in the judgment.
B Sechele for the petitioner.
P Ntalabgwe for the State.  F
Judgment
CHINHENGO J:
On 26 March 2004 I issued as order that Segaetsho Garekwe ('the petitioner') be admitted as an attorney of the courts of Botswana and that the registrar of the High Court enrol him as such. I gave my reasons for the order in  G  an extempore judgment which cannot now be produced because of certain difficulties which the short-hand secretary experienced. I have had to write this judgment for that reason.
The facts as placed before me in these unopposed proceedings were as follows. The petitioner was born on 2 February 1958. He is over 45 years of age. He was active in politics between 1984 and 2000. From 1984 to 1987 he was 'an Executive Secretary' of the Botswana Democratic Party ('the party') and in this capacity he had  H  'enormous responsibilities regarding the handling of party funds'. As of 1988 he was under investigation arising from financial irregularities at the party offices at Tsholetsa House, Gaborone. He was charged, tried and convicted in 1989 for the offence arising from the said financial irregularities. (The actual offence was not specified but I assumed it involved dishonesty.) He was sentenced to 18 months' imprisonment which was wholly and  A  conditionally suspected for three years. Regarding the circumstances of his conviction, the petitioner said little and disclosed little. In paras 22-24 of the petition it is stated:
 '22. As regard to the circumstances of his conviction in 1989, he wishes to say less about it as it was one of those acts that one is led into without an intention to do so.  B
 23. His conviction followed a time when he was charged with recruiting new members into the party and dealing with those that were lined up to cross the floor from their parties.
 24. Funds have to be used for this purpose and in the process because of a lapse of memory some financial irregularities occurred. It was not like stealing money from the party for my own use and/or benefit but it was failure  C  to fully account for money spent on party activities.'
These paragraphs do not, obviously, fully disclose the circumstances of the petitioner's conviction. I would have expected much more by way of disclosure because of the nature of the relief sought by the petitioner.
Before lodging this petition the petitioner's attorneys, Kgalemang & Associates had, on 19 November 2001,  D  asked the Attorney-General and the Law Society of Botswana if they would object to or oppose his petition. They both showed no inclination to oppose the petition. In a letter dated 19 December 2001, the Attorney-General said:
 're: Admission - Segaetsho Garekwe  E
 Your letter of 19 December, 2001 ref PAK/KK/1297 refers. The matter you raise appears to me to be one of law which should be decided upon by the courts after proper legal argument. I personally believe every human being has within himself/herself the capacity to reform and ten years is a long enough period within which one may have done so. I think you should consider approaching the High Court. My individual sympathy may very well be misguided.'  F
 The Law Society also responded in similar fashion in a letter dated 29 January 2002. It said:
 'Re: Application for Admission to Practice as an Attorney - Segaetsho Garekwe  G
 We refer to your letter dated 19th November 2001 regarding the above. Counsel's view, like the Attorney General's, is that this is a matter for proper legal argument before a Court of Law.'
When the petition was filed, the Attorney-General and the Law Society of Botswana were duly served with all the  H  papers on 17 February 2004. Service was in terms of s 10(3) of the Legal Practitioners Act (Cap 61:01) ('the Act'). True to their earlier stated position neither the Attorney-General nor the Law Society of Botswana opposed the petition. Ms Ntalabgwe who appeared for the Attorney-General said that whilst the Attorney-General was previously opposed to the petitioner's admission he now wished to leave  the matter entirely in the court's hands. In terms of s 10(4) of the Act the Attorney-General, the Law Society of  A  Botswana or any legal practitioner may, with the leave of the court, appear as amicus curiae to oppose the granting of the application. If any opposition is lodged it would, in my view, trigger 'legal argument' mentioned in the letters of the Attorney-General and the Law Society of Botswana.
It seems to me that the court has a residual discretion in the matter of the admission of any person to practice  B  as an attorney. Such discretion derives, in my view, from s 11 of the Act which provides that:
 'The court may, if it is satisfied that a person who has applied under section 10 possesses the prescribed qualifications to be admitted and enrolled as a legal practitioner, admit and, subject to section 12, enrol him as an advocate, attorney, notary or conveyancer as the case may be:  C
 Provided that...'
The proviso is not relevant to this petition. Neither is s 12 of the Act. Section 10 of the Act provides that any person who holds the requisite qualifications in terms of ss 4, 5, 6 or 9 may, by petition in writing, apply to the  D  court for admission and enrolment as a legal practitioner. The qualifications to be admitted as a legal practitioner for a citizen of Botswana are stipulated in s 4 of the Act. A petitioner is required to satisfy the court in regard to those qualifications. He must be a fit and proper person. He must have obtained by examination a degree of LLB from the University of Botswana or a recognised law degree from any of the other specified universities. He must  E  also have passed such practical examinations as may be prescribed.
The petitioner went on to state that in 1994 after completing the LLB degree course at the University of Botswana, he applied for admission to practice as an attorney and he was duly admitted. Soon thereafter pressure was brought to bear, it seems, on the Attorney-General by certain members of the party, and an  F  application was made to the High Court for the withdrawal of the petitioner's admission. His admission was withdrawn as a result. No papers relating to this application were placed before me. The reason for the withdrawal appears to have been solely that the petitioner was not a fit and proper person to be admitted as an attorney because of his conviction in 1989. The withdrawal means, in my view, that the petitioner was never  G  actually admitted because a withdrawal involves the undoing of what has been done. The appropriate meanings of 'withdraw' and 'withdrawal' given in the Shorter Oxford English Dictionary are, respectively, 'take back, retract (one's words, a statement or expression). Formally rescind (a judgment)' and 'the act of taking back or away what has been granted or possessed'. If I am correct, it means that the present petition is not one for  H  re-admission but one for admission simpliciter, and that it is a matter covered by the provisions of the Act. The Act does not seem to make specific provisions with respect to re-admission but I think that the considerations should be the same as for admission. The Attorney-General and the Law Society also view the present petition as one for admission and not for re-admission. See the headings of their letters referred to above. I have stated that the admission of any person to practice as a legal practitioner is, in the final analysis, a matter  A  in the discretion of the court. In South Africa it now definitely is. See Ex parte Aarons (Law Society, Transvaal, Intervening) 1985 (3) SA 286 (T). In this country the matter may not be that straightforward if regard is had to s 4(1) of the Act. The requirement that a person has certain qualifications is usually a matter of fact. Section 4(1) of the Act provides that a person shall be qualified to be admitted as a legal practitioner if, inter alia, he satisfies  B  the court that he is a fit and proper person. This is a stated qualification which must, as a matter of fact, he established and once so established, the court would have no discretion but to admit a petitioner. Thus where a petitioner has shown that he is a fit and proper person, an essentially factual inquiry, there would be no room, outside s 11 of the Act, for the exercise of a discretion by the court. In re: Chikweche 1995 (1) ZLR 235 (S) the  C  Supreme Court of Zimbabwe gave judicial meaning to the phrase 'fit and proper person'. At 244E Gubbay CJ said:
 'Construed in context, the words "a fit and proper person" allude, in my view, to the personal qualities of an applicant - that he is a person of honesty and reliability. See S v Mkhise & Ors 1988 (2) SA 868 (A) at 865D.'  D
I do not construe the words in s 4(1) - 'if he satisfies the court' - to confer a discretion on the court - see Law Society, Transvaal v Behrman 1981 (4) SA 538 (A) at p 555C-D. Section 11, however, confers a residual  E  discretion on the court. The use of the word 'may' is a clear indication that even where a petitioner has satisfied the court that he has the requisite qualifications his admission remains a matter in the discretion of the court. The legislature clearly intended to give the court a discretion in the admission of a person to practice as a legal practitioner.
The position adopted by the Attorney-General and the Law Society of Botswana not to oppose the petition did not  F  make it easy for the court to decide whether or not it may, in the circumstances, exercise its residual discretion. Without any opposition the question arises as to how the court should go about exercising its discretion. 'A factor of importance in any such application is the attitude adopted by the Law Society ... considerable weight must be given to the attitude adopted by the Law Society' per Corbett JA (as he then was) in  G  Behrman's case supra at p 557G-H. Since the court has a residual discretion, it is necessary for me to consider the basis upon which that discretion is to be exercised bearing in my mind that I must be persuaded by evidence and argument, on a balance of probabilities, that the petitioner is a fit and proper person - (Nyembezi v Law Society, Natal 1981 (2) SA 752 (A) at p 756H-D).  H
It seems to me that there are two enquiries which the court must make. The first relates to the 'nature and degree' of conduct which occasioned applicant's conviction (Aarons's case supra at p 291G) and the second is also stated in Aarons's case at p 294E - where Ackermann J said:
 '... the fundamental question to be answered is whether there has been a genuine, complete and permanent reformation on the applicant's part, which involves, inter alia, an inquiry as to whether the  A  defect of character or attitude which led to applicant being adjudged not fit and proper no longer exists. While regard must be had to all the considerations mentioned in the passages I have quoted from Kudo's case and Behrman's case, the fundamental enquiry, as I understand these authorities, relates to the assessment of the applicant's character reformation and the chances of his successful conformation in the future to the exacting demands of the profession he seeks to  B  re-enter.
 It seems to me to be fundamental to this enquiry to determine what the particular defect of character or attitude was before one can begin to establish whether an applicant has reformed in respect thereof. It is equally important, I believe, to enquire whether the applicant himself properly and correctly identifies and appreciates the defect of character or attitude  C  involved. Unless there is such proper and correct appreciation by the applicant, it is difficult to see how the defect can be corrected or cured or eradicated and how there can be true reformation which is reliable and lasting.'
Aarons's case was a petition opposed by the Law Society of the Transvaal. The petition itself was for  D  re-admission. These are features which distinguish that case from the present application but they do not detract from the principles to be applied. The petition concerned here is, however, unopposed and so the exacting enquiries mentioned in Aarons's case are far more difficult to embark upon. In my view, however, the enquiries must be carried out as best a court can do in the circumstances. This is necessary because the exercise of a  E  discretion must not be arbitrary.
It was stated in Law Society, Transvaal v Behrman (supra) and in Kudo v Cape Law Society 1977 (4) SA 659 (A) that a petitioner has an onus to convince a court, on a balance of probabilities, that he has genuinely, completely and permanently reformed and that the defect of character or attitude for which he was adjudged not a fit and  F  proper person no longer exists and further that in considering whether that onus has been discharged the court must have regard to the nature and degree of the conduct which occasioned his removal from the roll and the explanation which he has given of the circumstances of the offence. It was also stated that the court should have regard to the lapse of time between his removal and his petition for reinstatement, to his activities subsequent to  G  his removal, and to his expression of contrition and its genuiness. In Kudo supra at pp 345H-346 it was recognized that the above considerations are not exhaustive and '... the weight to be attached to them must naturally vary with the circumstances of the case. They all, however, relate to the assessment of the applicant's character reformation and the chances of his successful conformation in the future to the exacting demands of  H  the profession he seeks to re-enter.'
The petitioner is this case showed that since his conviction he has not been involved in any dishonest act or committed any crime. He enrolled for the LLB degree course in 1988 when investigations into his misdeeds as a political party functionary had already commenced. He completed the LLB degree course some four years after he had been convicted and sentenced. He became aware of the high professional standards required of a legal practitioner long after his conviction and  A  sentence. He has to be viewed rather differently from a legal practitioner who commits an offence whilst practising law. Such a one would invite the highest scrutiny before a court can be satisfied as to his reformation.
The petitioner has filed supporting affidavits from his attorney, Mr Kgalemang, his bank manager and a Minister in the government. They all deposed to the petitioner being an honest, dependable and reformed individual who is  B  unlikely to return to his past. The Minister in particular pointed out that the petitioner has held responsible positions in local government. He has been a councillor and a specially elected councillor for more than three years. Between 1999 and 2001 he was chairman of the Central District sub-committee on finance, development and planning in which capacity he controlled the allocation and use of district revenue. During the same time he  C  was also chairman of the main committee on trade and liquor licensing, chairman of the tender board committee, Mahalapye sub-district, and vice-chairman of the tender board, Central District. There is no doubt that the petitioner has held positions of trust in the public service at local government level and that he has acquitted himself well. He has also engaged himself as a consultant on company formation and registration,  D  drafting of agreements and market research and has lectured in law part-time at the Botswana Institute of Administration and Commerce. It would seem that he has not been found wanting in any respect whatsoever.
Perhaps the most important consideration in petitioner's case is that he has been unable to practise law, his chosen profession, for about 10 years. That on its own has, is my view, taught him the lesson that in order to  E  practise as a legal practitioner one has to be absolutely reliable - a fit and proper person in every respect. Most of the cases coming from South Africa of which I am aware, were concerned with applications for re-admission after periods not exceeding ten years: Lambert v Incorporated Law Society 1912 TPD 688 (6 years), Van Heerden v Cape Law Society 1923 TPD 492 (7 years), Ex parte Potgieter 1958 (2) SA 220 (T) (3 years), Ex  F  parte Ross 1971 (1) SA 281 (T) (9 years), Aarons's case supra (8 years).
It was only in Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T) where the period exceeded 10 years. In Aarons's case supra Ackerman J at p 297E said that:  G
 'It is of course a commendable characteristic of a humane society that an offender who has served his prison sentence and therefore "paid his debt to society" should be received back and integrated into society. This by no means implies that society is convinced that such person is totally reformed, rather that society is prepared to give him a chance to show that he is indeed rehabilitated or to complete the process of rehabilitation.'  H
I must say that whilst I agree with this observation it can equally be said that society's acceptance of such person does not imply that the society is not convinced that such a person is totally reformed. The important point, however, is that it accepts him in order to give him a chance to show that he is indeed rehabilitated. Without affording him such chance there would be no telling that he has actually reformed. The Attorney-General's sentiments in the letter of 19 December 2001  A  reflect society's preparedness to give such a person a chance to show that he has reformed. Evidentially at least the petitioner's clean record over 13 years since his conviction and sentence are a strong indication that he has reformed. He himself said he has. In a situation where no opposition has been lodged against the petition it is almost impossible to conclude that the petitioner herein has not discharged, on a balance of probabilities, the  B  onus on him to show that he has completely, genuinely and permanently reformed and that he must be admitted to practise law as an attorney. The wholly suspended sentence imposed on the petitioner in 1989 is by itself reflective of the fact that the offence he committed was not regarded as very serious. On the papers before me I was satisfied that the petitioner had reformed and that he was now a fit and proper person. I also thought that in  C  the absence of any opposition to the petition there would be no sustainable basis on which to exercise the discretion reposed in me against the petitioner. It was for these reasons that I admitted him as an attorney and ordered that he be enrolled as such.
I cannot, in conscience, conclude this judgment without commenting adversely on the manner in which this petition, though unopposed, was presented. It will be noted from my judgment that there was no mention in the  D  petition of the specific offence of which the petitioner was convicted. When I set out to prepare this judgment I enquired with the attorney concerned what that offence was and I asked him to avail me of the relevant judgments. He obliged and sent two judgments - one by the High Court (per Gyeke-Dako J) Garekwe v The State [1993] BLR 94 and the other by the Court of Appeal Garekwe v The State (Crim App 8/93), unreported.  E  Reading those judgments it becomes quite clear that the petitioner was in fact convicted of fairly serious offences which should not have been played down in the petition. He was convicted of five counts of stealing by servant in contravention of s 271 as read with s 277 of the Penal Code (Cap 08:01). He was sentenced to 18 months' imprisonment, 12 months' imprisonment, 18 months' imprisonment, 18 months' imprisonment and 2  F  years' imprisonment. These custodial sentences were ordered to run concurrently and wholly suspended conditionally for three years. He was ordered to pay by way of compensation the sum of P49 374.33 representing the stolen money to the party, his employer. It was therefore an understatement, if not a misrepresentation, to say, in the petition, that he was sentenced to 18 months' imprisonment wholly suspended.  G  It was not correct for the petition to state that the petitioner's conduct 'was not like stealing money for my own use and/or benefit but it was a failure to fully account for the money spent on party activities' when the judgments I have mentioned quite clearly indicate that the petitioner's conduct was theftous. I do not think that the attorney who presented the petition intended to mislead the court in the knowledge that the petition would not be opposed.  H  If that were so it would be a serious indictment on the attorney concerned. I think, however, that this observation will impel legal practitioners to verify, by reference to available documents, the veracity of the instructions given to them by their clients. If Mr Sechele knew the offences of which his client had been convicted (and I believe he did not know), he would not, as an officer of the court, have gone along with the petitioner's incorrect assertion that he was sentenced only to 18 months'  A  imprisonment. I must reiterate that legal practitioners must reveal all the facts known to them in such applications so as to enable the court to make an informed decision which is beneficial to society as a whole. This observation does not, in any case, mean that I would have arrived at a different conclusion. My decision to admit the petitioner is sufficiently justified even in the face of the half-truths I have highlighted.  B
Application granted.
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