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The Law Society of Botswana (LSB) and the High Court of Botswana have been left with an egg on the face after it emerged that they might be issuing fidelity and practicing certificates to illegal immigrants.
This emerged in a case in which Zimbabwean alleged illegal immigrant Nkosana Admire Ngwenya was issued with fidelity and practicing certificates by the LSB and High Court enabling him to practice in Botswana as a lawyer.
It has also emerged that there are gaping loopholes in vetting processes by both the LSB and High Court.
According to the police charge sheet, Ngwenya stayed illegally in Botswana between 1stSeptember 2017 and 19th June 2018; being a person/visitor not exempted to remain in Botswana for a period of more than 90 days unlawfully remained in Botswana for more than 292 days.
The blunder and incompetency on the part of the LSB and the High Court was exposed by investigating officer, Detective Sergeant Marapo when he advised the court not to grant Ngwenya bail.
Ngwenya is currently at the centre of police investigation and facing multiple charges relating to work and residence permit fraud. He is accused alongside his purported employee, Meshack Nyakaswa of obtaining more than P100 000 from different clients for the year 2018.
Ngwenya, 27, of Ngwenya and Associates, a qualified attorney, is accused of hiring (Meshack Nyakaswa) despite not holding a work permit or exemption certificate to work in Botswana.
Applying for bail before Broadhurst Magistrate Ngwenya told the court that it was on records that the Law Society of Botswana has issued him with a practicing certificate.
Ngwenya further stated that the High court also gave him a practicing certificate to practice as an attorney.
He said he had more than 700 clients resident in Botswana and Zimbabwe who need his service.
He was granted bail by Broadhurst magistrate court pending the state’s investigating.
The state through detective Senior Superintendent Sergeant Marapo then applied for an extension of another 14 days to provide information to prove that Ngwenya is an illegal immigrant.
When contacted for comment, LSB Executive Secretary Tebogo Moipolai said they were not aware that Ngwenya is an illegal immigrant.
Moipolai said the requirements of issuing a Fidelity Certificate are provided for in the Legal Practitioners Act and do not include an enquiry into residence and work permits status of the applicant.
”The enquiry is two-fold: firstly is the person admitted as an attorney? And secondly has he paid the required contribution to the Fund? The practicing Certificate is thereafter issued by the Registrar on satisfaction that the applicant if not a first applicant, has filed clean audited accounts of the trust account, has paid subscriptions and has no outstanding fines for offenses under the Act and given the above answers I can categorically state that the LSB did not sleep on the job as your paper suggested,” said Moipolai.
He said Ngwenya was issued with a Fidelity Certificate on the 24thNovember 2017 for the year up 31st December 2018, and a Practicing Certificate for the same period by the Registrar of the High Court.
He said in respect of criminal proceedings, LSB will allow the prosecutorial process to proceed to the end and decide what action to take thereafter as provided for in the legal practitioners Act.
For his part, the Master and Registrar of the High Court, Michael Motlhabi distanced himself from the blunder arguing it was the responsibility of the society to make sure that all lawyers are in good standing.
“I have considered your inquiry and my response is that issuance of a practicing certificate is based on the availability of a Fidelity Fund Certificate and a compliance certificate issued in terms of section 30(1)(a)(b)(d)(e) and (f) of the legal practitioners Act(61:01).”
Motlhabi added that “I’m aware that Ngwenya is facing criminal charges. But as custodian of records which may be vital in the investigations of this matter, I’m constrained to engage in any debate on this matter at this stage, least I compromise the would be evidence before court.”