The running battle between the bar and the bench is expected to reach its highest watermark this month following a notice of intention by a private lawyer to institute legal proceedings against a magistrate.
This comes in the wake of several complaints by private lawyers that some magistrates abuse their powers by unlawfully detaining them for contempt of court.
In the latest incident which is expected to escalate the tension between lawyers and magistrates, a Gaborone based lawyer, Friday Leburu was last week detained by Village Magistrate Priscilla Ditlhong for contempt of court after the two had a ‘bitter’ exchange in court. Leburu has reported the matter to the police for investigation and prosecution of the magistrate.
In an interview with The Sunday Standard, Leburu said that the magistrate must be investigated for possible fraudulent conduct.┬á “What is changing the complexion of the matter altogether is that the magistrate has indicated in her notes that I said rubbish to her. I never uttered those words. The words do not appear in the official record of sworn recorder. Police officers, prosecutor, journalists who were in court did not hear any such utterances but only the judicial officer and her notes. We want the police to investigate possible fraudulent conduct.”
Leburu also said that his lawyer will be writing a letter to the JSC asking for disciplinary action against the magistrate. He said JSC has the power to hear complaints against a judicial officer. “We will give them the necessary notice to convene a public hearing on the matter. If JSC fails to convene as required we have the right to approach the High Court for an order compelling JSC to hear the matter”
Leburu said Magistrate court as a creature of statute cannot do anything outside the Magistrate Court Act. “The Act empowers the Magistrate to send out of court any person who disrupts court proceedings until the first rising of the court or the court may cite for contempt in which it will be asking the person to show cause why he cannot be held for contempt. Where a magistrate wishes to detain beyond the first rising such power cannot be exercised summarily.┬á Summary contempt is common law procedure excisable only in the High Court.”
Leburu has also served the Attorney General with papers notifying them of his intention to sue for unlawful detention.
Leburu’s incarceration comes barely a week after the chairman of the Law Society of Botswana (LSB) Lawrence Lecha told the opening of the legal year that there was bad blood between ‘the bench and the bar.’
Lecha said in the year 2013, they had witnessed cases in which some magistrates, especially junior ones, were bullying legal practitioners, litigants and members of the public.
“The media on a number of occasions reported on the harassment and even detention of members of the public by magistrates who seem to be drunk with power. These magistrates have developed a tendency to issue warrants of arrest willy-nilly against all and sundry, be it legal practitioners, prosecutors, witnesses and even innocent members of the public who visit the courts. I stand here as a victim of such warrants of arrest,” he said.