Batswana facing civil suits have no right to legal representation ÔÇô this emerged in a landmark High Court judgement by Justice Ian Kirby two weeks ago.
Justice Kirby dismissed with costs an urgent court application in which Tlokweng College of Education lecturer, Monica Tirelo asked the High Court to protect her “Constitutional right to legal representation” against a civil suit filed with the Tlokweng Customary Court by one Bosadi Molelu.
Tirelo who is being sued for destroying Molelu’s marriage wanted her case transferred from the customary court to the magistrate’s court so that she can exercise her “Constitutional right to legal representation.”
Justice Kirby however ruled that although accused persons have a Constitutional right to legal representation by legal practitioners of their choice, the right is not absolute. He further stated that “there is no similar constitutional right conferred in respect of civil proceedings in any court at present. The position in civil cases is quite different as there is no constitutional right to legal representation it is in the interest of two competing citizens which need to be weighted in the balance to reach a decision which is in the interest of justice.
“To allow the transfer would in the circumstances be financially and strategically unfair to the plaintiff, who has chosen her court, and would trespass upon her constitutional right as well and therefore the applicant’s constitutional ground of review must accordingly fail”
Kirby’s judgment pointed out that in the present case there was “no evidence whatever of bad faith” in the customary court of appeals decision against transferring Tirelo’s case to the magistrate’s court. He further said “in a simple application of this nature, there was neither an obligation nor any necessity for the customary court of appeal to give reason for its decision, in the absence of any statutory requirement to do so. It was apparent, by its refusal to transfer the case that it did not accept that the applicant has a right to such a transfer as she claimed.”
Kirby said it is well known that the magistrate courts are overloaded and seldom hear a civil case expeditiously, “and to hire a lawyer to counter that of the defendant would probably be unaffordable. The alternative would be to prosecute the case unrepresented in a forum beset (to the layman) with legal formalities. The even playing field of Customary Court would thus be severely and unfairly tilted in favor of the defendant which is not in the interest of justice, reads the judgment.
Kirby said the case was suited for determination by a customary court, and the only ground of transfer raised by the applicant was that she wished to be legally represented. “To allow transfer would in the circumstances be financially and strategically unfair to the plaintiff”, he said.
