The Law Society of Botswana has considered the [Forum Shopping ] Circular and wishes to draw your attention to concerns that it has relating to same. The Law Society of Botswana is a statutory body established by Parliament to amongst others regulate the profession and attende to matters relating to the welfare of legal practitioners. The Society is concerned that despite the foregoing being common because you opted to issue the circular without any discussion, let alone consultation with it. Your decision not to address the Circular to the Society or at least send it a copy seems to suggest that you have no regard for the Society. This would indeed be unfortunate.
The Society has repeatedly stated on record that the practice of ‘forum shopping’ by practitioners was largely due to the inefficiency of the justice system due in part to appointment of underserving candidates to the Bench. You have never bought your concern that bribes may be used in Forum Shopping to our attention for discussion. Despite the Law Society Council meeting you on two occasions this year you did not raise this now seemingly grave concern.
Being the authority that promulgates and also custodian of the Rules of Court, it seems obvious that you would be aware that withdrawing and refilling (registering) a matter before it is set down for hearing is allowed in the Rules. If this is the practice that you refer to as forum shopping then it is not inherently improper, especially when resorted to in a bid to avoid inefficiencies in the justice system that negatively affect delivery of justice such as no-delivery or delayed delivery of Judgements.
It is noteworthy that your Brothers and Sisters at the Bench in Lobatse share our views above and state in the penultimate paragraph of their letter to you dated 16th October 2013 that, ‘you have failed to adequately address the issue of poor service delivery which has led to forum shopping’.
In you Circular you suggested that Forum Shopping could be facilitated by corrupt practices such as bribery of Judges and staff of the Registries. In so doing immediately cast doubt on the integrity and credibility of the judicial system in Botswana and shattered public confidence in it.
You have since issued a Press Release advising that your Circular was misconstrued as it was never intended to impute corrupt activities on your Brother and Sister Judges. In that communication there is no mention of an apology to legal practitioners and your staff. It is trite that in order for corruption to occur there should be atlas two players. In this instance the legal practitioner as the party that registers the process for client would undoubtedly have to be part of the corrupt practices that you insinuate may be taking place and yet you have not provided a single shred of evidence.
The Law Society notes that on threat of Judges in Lobatse engaging in ‘strike’ action you have apparently issued an apology to them. You have however omitted to apologize to the legal practitioners and indeed your own staff at the Registries. The Society emends that immediately adduce evidence of practitioners who have offered bribes to either Judges or Staff members at the Registry i furtherance of forum shopping. Should his lordship be unable to do so he must proffer an immediate and unequivocal apology to the legal practitioners? Please be advised that should such apology not be forthcoming by close business tomorrow Friday 25th October 2013, the Law Society will take all action necessary and available to it to extract same from you. The Society trusts that this will not be necessary and shall see the need, as you did with you Brothers and Sisters at the Bench, to apologize.
The Law Society has stated in several engagements with you and in various fora that the procedure of appointment of Judges is flawed because of, amongst others, the constitution of the Judicial Services Commission (JSC) and the lack of transparency in the procedure followed by JSC in making recommendations to His Excellency the President for appointment.
You and indeed the Judge President of the Court of Appeal have poured scorn on the concerns of the Society and its position. The Society wishes to reiterate that the root cause of forum shopping is the appointment of unsuitable persons to the Bench and for as long as this continues, there will be no end to Forum Shopping.
The Society has at every opportunity raised the problem of delayed or non-delivery of Judgements with you. It is common cause that in some instances judgements in matters registered as urgent applications can be delivered more than six months down the line. It is also known that some judgements are outstanding for more than two years. It is further known that some judges have outstanding judgements in the hundreds. Defaults judgements which in their nature are intended to ensure speedy resolution of matters are also routinely delayed.
The Law Society has engaged with you and on several occasions you have advised that you aware of the problem and it is being addressed. There is however nothing on the ground that supports that position as the status quo prevails. It is for this reason that some judges are avoided by practitioners as the Society has previously said.
The Society demands that you, within fourteen (14) days of this letter, advise what action has been taken to remedy this situation. Should His Lordship fail and / or refuse to respond as demanded above the Society will put in place measures to ensure that outstanding judgements are delivered and those who are responsible are brought to book as appropriate. Alternatively or in addition, necessary action will also be taken to ensure that you execute your supervisory responsibilities as Chief Justice.
The Society has in the past advised that registration process of court documents was inefficient. This continues to be the case and indications are that it is becoming worse especially in Gaborone, where His Lordship sits. In some instances it can take up to two weeks to register a summons commencing action. It may however take two days to complete the same process in a different registry. Is it therefore not logical that a legal practitioner seeking redress for a client may be inclined to file with the latter registry?
In your Circular you directed that a process should not be registered at the Lobatse High Court. It has been brought to your attention that the direction is contrary to the rules. Your subsequent Press Release does not however provide clarity on this issue. Kindly therefore address this matter urgently so that practitioners can use the Lobatse High court.
Judicial Case Management was touted as the panacea to the age old problem of slow moving process in the courts. Each judge was to take charge of a matter from registration and would therefore be able to ensure that each step of the process is conducted expeditiously. This was mainly on the assumption that Judges had an interest in dispensing Justice quickly. What has however happened is that some Judges are now setting down fewer matters than was the case before JCM and even in the 1990s, some judges set down as few as two matters on a Motion Roll. All the foregoing is despite the fact that Judges now operating with more staff than previously.
The CRMS was installed as part of JCM. This system was supposed to amongst others collate information on case registered, show which Judge is allocated what case, how many cases each Judge has been allocated, how many cases have been closed and what led to the closure of the case, that is, was judgement delivered, was there only an order granted and indeed was it withdrawn and by whom.
In our engagements with the Administration of Justice we have previously requested the said Report for a specific period. This report would’ve assisted in providing a correct picture of disposal of cases. It would have assisted in showing which cases that are being reported in various fora as concluded are actually concluded. This is especially important since as the saying goes there are “lies, damn lies and statistics”. His lordship directed the Registrar that we be advised that the document is “internal”.
The Society demands that the CRMS Reports be made available to it as a stakeholder and, in fact,, believes it is a public document. Should the honourable Chief Justice again fail or refuse to provide the Society access to this Report within fourteen (14) days action as necessary and available to the Society will be taken to compel you to give the Society access to the report.
The Chief Justice must immediately adduce evidence of corrupt practices by practitioners or apologize to them. Should no apology be received one will be extracted by any means available.
The Chief Justice must advise the Law Society of Botswana what has been done to address the various concerns above which are hindering delivery of justice within (14) days failing which processes to compel him to do so will be commenced. The Honourable chief justice should give the Society access to the CRMS Report for the period since inception of JCM within fourteen days. If he fails or refuses to do so, action as necessary and available will be commenced. His Lordship should share with the Law Society and the public at large how in the long-term he intends to restore the integrity and reputation of the judicial system as his circular No. 1 of 2013, notwithstanding the apology, has tarnished same and brought it into disrepute.
The measures above, it is believed, are the only ones that will restore public confidence.
*Lawrence Lecha is Chairman of the Law Society of Botswana
