BAYFORD v. THE LAW SOCIETY OF BOTSWANA 2001 (1) BLR 350 (HC)

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Citation: 2001 (1) BLR 350 (HC)
Court: High Court, Lobatse
Case No:
Judge: Nganunu CJ
Judgment Date: March 16, 2001
Counsel:
Chris Du Plessis for the petitioner. D.B. Leburu for the respondent.
Flynote
Legal practitioner - Attorney - Amicus curiae - Petition by applicant for admission as attorney - Attorney appearing as amicus curiae opposing application - Whether attorney appearing as amicus curiae entitled to oppose application for admission.
Legal practitioner - Admission - Attorney - Commonwealth citizen - South African national - Qualifications for admission  - Admission as attorney to practise in South Africa - Petitioner to be ordinarily resident in Botswana or having intention of permanently residing in Botswana - Necessity of having reciprocal provision in South African enactment permitting or nabling citizen of Botswana to be admitted as attorney to practise in courts  of South Africa - Whether petitioner qualified to be admitted as attorney - Legal Practitioners Act, 1996 (No. 13 of 1996), s. 5(1) - South African  Attorneys Act 53 of 1979, s. 15.

Headnote
The petitioner, a Commonwealth citizen and a national of South Africa, applied to be admitted as an attorney to practise in the courts of Botswana. He averred that: (a) he had completed his articles of clerkship and had been admitted as an attorney to practise in the High Court of South Africa; (b) he  had been ordinarily resident in  Botswana or he had the intention of residing permanently in Botswana; and (c) a reciprocal provision had been enacted in section 15 of the South African Attorneys Act 53 of 1979, permitting or enabling citizens of Botswana to be admitted as attorneys to practise in the courts of South Africa. At the time of making the petition, the applicant had  resided just over one month in Botswana. Counsel for the Law Society of Botswana who  appeared as amicus curiae opposed the petition of the applicant on the grounds that the applicant had not complied with the conditions stipulated in section 5 of the Legal Practitioners Act, 1996. He stated that the petitioner had not fulfilled the residential requirement f for admission, and also that there was no reciprocal provision in any enactment in South Africa permitting or enabling a citizen of Botswana to be admitted as an  attorney in South Africa. It is provided by section 5 of the Legal Practitioners Act, 1996, that a person who is a citizen of a Commonwealth country shall be qualified to be admitted as an attorney if he satisfies the court that, inter alia: (i) he is a fit and proper person; (ii) he has been admitted as an attorney in the High Court of South Africa; (iii) he is ordinarily resident in Botswana or he intends to reside permanently in Botswana; and (iv) that  there is a reciprocal provision in the law of the Commonwealth country, (i.e. South Africa) which permits or enables citizens of Botswana to be admitted to practice in South Africa. At the hearing of the petition, counsel for the petitioner raised an objection as to the locus standi of the counsel for the Law Society of Botswana. He contended that the Legal Practitioners Act conferred on any legal practitioner the privilege of appearing before a court

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seised with a petition for admission of a person as an attorney only as amicus curiae and that in that capacity he  was not entitled to oppose a petition for admission of an attorney. He stated that, according to the common law, a lawyer appearing in court as amicus curiae would be a friend of the court whose duty was confined to pointing out to the court certain matters of interest without opposing the application.
Held: (1) the Attorney-General or any attorney appearing as amicus curiae would be entitled to oppose any  application for admission of an attorney, especially where a non-citizen had applied to be admitted to the courts. Both the Attorney-General and the Law Society had been entrusted ith responsibilities for the administration of the Legal Practitioners Act and the admission of foreign lawyers and as such they had a right to appear before  the court to voice their views about the legality or desirability of admitting any petitioner. Those responsibilities would include putting views in opposing the admission of a particular individual.
(2) Where a petitioner had to satisfy the court that he intended to reside permanently in Botswana, he would not be required to do anything more than to state his intention to do so and to give some factors which would demonstrate to the court that the intention stated did exist and that it was genuine. On the evidence, the applicant  had satisfied that criteria.
(3) Section 15 of the South African Attorneys Act 53 of 1979 adequately satisfied the test of a reciprocal provision required by section 5 of the Legal Practitioners Act. Consequently, the petitioner was entitled to be admitted and enrolled as an attorney of the courts in Botswana.

Case Information
PETITION for admission as an attorney of the courts in Botswana. Chris Du Plessis for the petitioner.
D.B. Leburu for the respondent.

Judgment
Nganunu C.J. This is a petition for the admission of Attorney Andria Eddie Bayford as an attorney of the High  Court and other courts of the Republic of Botswana and to be enrolled as such in terms of the Legal Practitioners Act, 1996 (No. 13 of 1996). The petition is opposed on behalf of the Law Society of Botswana which is a body composed of the attorneys of Botswana duly established by law.
The petitioner shows that he is a citizen of the Republic of South Africa which is a Commonwealth country; and  he states that he has been admitted in the High Court of South Africa as an attorney and has completed his pupillage - which they refer to in South Africa as articles of clerkship. He submits that he is a fit and proper person to be admitted as an attorney of the High Court, and states that he is ordinarily resident in Botswana and or intends to reside in Botswana permanently. Furthermore, he has claimed that South Africa is a country that  provides reciprocal arrangements in regard to the admission of citizens of Botswana to practise before its courts and for that purpose he has annexed an extract of section 15 of the South African Attorneys Act 53 of 1979. In its opposition to the admission of the petitioner the Law Society of Botswana has raised three issues for consideration of this court and finally submitted that the petitioner has not

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proved that he is entitled to be admitted under section 5 of the Legal Practitioners Act, 1996 (No. 13 of 1996). Mr Du Plessis on behalf of the petitioner raised a preliminary point regarding the locus standi of the Law Society of Botswana in making opposition to this petition. He referred to the provision sof section 10(4) of the Act and submitted that this provision bestows on the Attorney-General, the Society or any legal practitioner the privilege  of appearing before the court in an application for admission of any attorney, only as amicus curiae and in that capacity they were not entitled to make serious opposition to an application or to file an affidavit regarding the facts concerning  uch an application. His submission was that an amicus curiae, according to the common law, would be a friend of the court whose duty is confined to pointing out to the court certain matters of interest but without engaging into a full scale opposition of the application. First, it is not clear to me that the provisions of  subsection (4) of section 10 apply in a case relating to the admission of a non-citizen attorney but be that as it may, I think that the society, the Attorney General or any attorney would have a right and a legitimate interest to come before a court where an application for admission of a foreign attorney is being considered and to put its or his views as best and as vigorous as it may feel justified in order to see that justice is done. I cannot agree that if  a person appears as an amicus curiae he is not entitled to voice strong opposition to any litigation that is before the court; if that be the rule of the common law - and I need not make a determination in respect of this case - I do not think it would apply in the situation where a non-citizen applies to be admitted to the courts of  Botswana. Clearly the Attorney-General and the Law Society of Botswana both of whom have responsibilities entrusted on them by this Act in regard to the administration of this Act and the admission of foreign lawyers in particular, would have a right to appear before the court and voice their views about the legality and or desirability of admitting any petitioner. That in my view, includes the ability to put views in opposing the admission of a  particular individual. The court ultimately makes up its decision but its decision is the more informed by virtue of arguments of legal practitioners on both sides. The point in limine is therefore without merit.
Admission of Commonwealth citizens to practise in the courts of Botswana is regulated by section 5 of the Legal Practitioners Act. This reads as follows:     "5.(1) A person who is a citizen of a Commonwealth country (including a citizen of Botswana) shall be qualified to be admitted as a legal practitioner if he satisfies the court that -
    (a)    he is a fit and proper person;     (b)    he has been admitted, has done his pupillage and is entitled to practise as a barrister in England, Northern Ireland, and the Republic of Ireland or as an advocate in the Court of Session in Scotland; or
    (c)    he has been admitted, has done his pupillage and is entitled to practise as an advocate in any Division of the Supreme Court

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        of the Republic of South Africa or in the High Court of Zimbabwe; . . .     (e)    he has been admitted, has done his pupillage and is entitled to practise as an attorney or solicitor in any Division of the Supreme Court of the Republic of South Africa or in the High Court of Zimbabwe; and
    (f)    he is ordinarily resident in Botswana or intends to reside permanently in Botswana; and     (g)    there is a reciprocal provision in the law of the Commonwealth country of which he is a citizen to permit a citizen of Botswana qualified in terms of the laws of that country to be admitted to practise in that country."  It seems to me that in order for a citizen of a Commonwealth country to be admitted as an attorney of the courts of Botswana he has to show:
    (i)    that he is a fit and proper person;
    (ii)    he has been admitted and has done his pupillage and is entitled to practise as an attorney or solicitor in any division of the Supreme Court of South Africa or the High Court of Zimbabwe or other countries as  has been specified in section 5 or in the Schedule;
    (iii)    that he is ordinarily resident in Botswana, or alternatively, that he intends to reside permanently in Botswana;
    (iv)    lastly that there is a reciprocal provision in the law of the Commonwealth country where he is a citizen  which permits or enables citizens of Botswana who are suitably qualified to be admitted to practise in that country.
A citizen of Botswana has to be qualified to be admitted to practise in that country "in terms of the law of that  country".The reciprocal provisions of that country provide the criteria for qualification for admission in its own country. According to our s ction 5 of the Act, it is not the Parliament of Botswana that must provide the criteria for qualification for admission in another country. That makes sense, for Botswana cannot be permitted by other Commonwealth countries to prescribe criteria for admission of its citizens in their courts, much as those  countries did not prescribe for Botswana the conditions under which their citizens would be regarded as qualified to be admitted to practise in Botswana.
These are the requirements and the court should admit him if he satisfies these requirements of the Act. As regards fitness for admission that is an elastic standard which a court will determine depending on the material placed before it. In regard to the present case in his founding affidavit the petitioner merely submitted that he was  a fit and proper person to be admitted and enrolled as an attorney of the courts of Botswana and he attached a certificate of good standing from the Law Society of Bophuthatswana. The certificate recorded that from the roll kept by the Law Society of Bophuthatswana the petitioner was duly admitted on 6 July 2000 and that his name has not been removed from the roll and that at that

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stage there were no proceedings pending or contemplated by the society to suspend him from practice. This  information in regard to the standing of the petitioner was subsequently supplemented upon the opposition by the Law Society by other evidence from practising attorneys in South Africa and other personages, to the effect that they knew the petitioner as an attorney and they could vouch that he was a person of proper standing and was fit  to be admitted as an attorney of any courts, including those in Botswana. In the face of this information the Law Society properly desisted from pressing its opposition on this ground.
There were some arguments about whether the petitioner could prove that he was resident or intended to reside permanently in Botswana. According to the petition the petitioner's claims to being ordinarily resident in  Botswana was based on the fact, if that be a fact, that he has commenced to reside in this country from 26 September 2000. However, it should be noted that the petition was dated 30 October 2000. The period of residence alleged was therefore only over one month. There would therefore have been some doubt whether a period of just over one month could sufficiently establish that the petitioner was "ordinarily resident" in Botswana. But the provisions of section 5(1)(g) are in the alternative, i.e. it is sufficient if the petitioner as an alternative  shows that he intends to reside permanently in Botswana. The petitioner has stated that he intends to reside permanently in Botswana and has amplified to enable the court to judge whether his saying so is genuine. I think that where a petitioner has to satisfy the court that he intends to reside permanently in Botswana he is not required to do anything more than to state his intention to do so and to give some factors which will demonstrate  to the court that the intention stated does exist and that it is genuine. That he means to reside permanently in Botswana; in the sense of making long term residence in this country. In the present case the petitioner having stated his intention to reside permanently in Botswana, has further spoken of his intention to establish a domicile in Botswana in fulfilment of which he stated and  xhibited an application form addressed to the relevant  authorities for permanent residence. Furthermore, he spoke of his strong family ties in Botswana pointing out that some of his relatives are citizens of Botswana and he has himself various interests in family businesses to which he wants to lend his assistance. Lastly, but not least, he pointed out that he has applied for a professional position and has been offered the same by Chris Du Plessis Attorneys, Notaries Public & Conveyancers. That  has been confirmed. Although, the Law Society sought to show that the petitioner has not sufficiently demonstrated his intention to do so to reside permanently in this country referring this court to some provisions of the Immigration Act, I think that the facts deposed in the petition amply illustrate that the petitioner has a fixed  intention to reside permanently in this country. He would not make an application for permanent residence, for instance, if he did not intend to reside permanently. The charge that since the application has not been approved there is no proof of his authorised residence or cannot be correct because what has to be demonstrated here under the section is the petition's fixed intention not that he has already acquired residence of a permanent nature. If he was already.

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resident here he would qualify under the first limp of paragraph (g) and there would be no need for demonstrating  once more an intention to reside in the country permanently. I think that he has satisfied this criteria.
The most contentious requirement as far as the Law Society of Botswana was concerned was to prove that the petitioner's country offers reciprocal provisions in its law whereby Botswana citizens can be admitted to practise in the courts of that country. The argument mounted by Mr Leburu ran something like this, as Act No. 13 of 1996  replaced the old Legal Practitioners Act (Cap.61:01) and introduced the requirement for the existence of reciprocity in the country where the foreign practitioner is a citizen, the court should not hold that reciprocal arrangements exist in that country if citizens of Botswana cannot be admitted to practise in the courts of that  country even when they are admitted according to the Laws of Botswana. In other words Mr Leburu felt that if the law in South Africa did not allow a Botswana citizen duly admitted to practise as an attorney in this country to be admitted to practise in that country by virtue of his admission in Botswana then we must hold that there are no reciprocal arrangements sufficient to satisfy the provisions of section 5(g). To me that argument is untenable in view of the clear language in paragraph (g). In providing for reciprocity in other Commonwealth countries under section 5(g) of the Act, the Botswana Parliament clearly left the specification of the criteria for admission to practise in other Commonwealth countries whose citizens seek admission to practise in Botswana, to the laws of those countries by clearly stating that Botswana citizens would in turn be admissible to the courts of those states when "qualified in terms of the laws  of that country to be admitted to practise." This language cannot be interpreted to include what Mr Leburu argued for. In my view, what our law sought to achieve as a reciprocal arrangement for citizens of Botswana s that, if they are otherwise qualified to practise in that country by virtue of its rules of qualification for admission, a Motswana must not be disqualified from admission to practise in a foreign Commonwealth  country because he  is not a citizen of that country or by virtue of other unnecessary barrier. The criteria in our own law is that our own citizen should be qualified in terms of the laws of the Commonwealth country in order to be admitted to practise in that country.
Section 15 of the South African Attorneys Act 53 of 1979 dealing with the admission and readmission of  attorneys provides as follows:
    "(1) Unless cause to the contrary to its satisfaction is shown, the court shall on application in accordance with this Act, admit and enrol any person as an attorney if -     (a)    such person, in the discretion of the court, is a fit and proper person to be so admitted and enrolled; and
    (b)    the court is satisfied that such person has satisfied the following requirements or, where applicable, has been exempted therefrom in terms of the provisions of this Act, namely that such person -
        (i)    is 21 years of age or older;
        (ii)    (aa) is a South African citizen or has been lawfully

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            admitted to the Republic for permanent residence therein and is ordinarily resident in the Republic; or . . .         (iii)    (aa) has satisfied all the requirements for a degree referred to in section 2(1)(a) after pursuing for that degree a course of study referred to in that section; or             (bb) has satisfied all the requirements for a degree or degrees referred to in paragraph (aA) of section 2(1) in respect of which a certification in accordance with that paragraph has been done or;
            (cc) has previously been admitted as an advocate or is entitled to be so admitted;         (iv)    has passed the practical examinations referred to in section 14(1)(a), (b) and (c);
        (ivA)    (aa) during his term of service under articles or contract of service, or after the expiry of his articles or contract of service; or
            (bb) after he has been exempted in terms of this Act from service under articles of clerkship . . ." (The   emphasis is mine.)
In my view, whilst the provisions of the South African Act are not the same as those in our Act permitting the admission of attorneys from Commonwealth countries especially South African, England and Zimbabwe,  nonetheless there is provision in section 15 of the South African Act for the admission of any person, that is including a person from Botswana, who demonstrates to the court that he is a proper and fit person to be admitted; and furthermore has acquired the qualifications specified in that section. Such a person need not become a citizen of South Africa but he must show that he is lawfully admitted into South Africa for permanent residence and he is ordinarily resident thereat. In my view what is provided in section 15 of the South African Attorneys Act 53 of 1979 adequately satisfies the test of a reciprocal provision required by our section 5(g) of our Legal Practitioners Act. That being the case I see no reason why the petitioner should not be admitted in our courts. I therefore order that he be admitted and be enrolled as an attorney of the High Court and other courts of  Botswana and should take the oath before the Registrar.
Petition granted.
E.K.T.
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