Tuesday, October 27, 2020

Mogalakwe’s lawyer should be punished for ignorance of law- Manewe

Oftentimes the legal principle ignorantia juris non excusat (one cannot escape liability for breach of law by a plea of ignorance) has been used in respect of the layman, so the audience at Gaborone High Court can be excused for failing to restrain their amusement at BDP lawyer Busang Manewe’s assertion that his rival, Patrick Kgoadi be punished for the same. It was perhaps this reaction from the audience that prompted Kgoadi to rise and object to what he termed a contemptuous remark from his opponent. The two lawyers faced off again at the High Court this past week where 2019 council candidate Mogalakwe Mogalakwe sought to be granted leave to appeal a February 12, 2020 High Court decision that dismissed his elections petition. Manewe, alongside Counsel Itseng Mothibamele, had raised preliminary points challenging the High Court’s jurisdiction over the matter. He argued that the Court had no jurisdiction to entertain Mogalakwe’s application. 

“The High Court cannot sit on the application for leave to appeal. No rule confers jurisdiction on this Court to entertain the matter,” Manewe argued, saying the rules clearly state that such an application shall lie to the Court of Appeal as of right. Another point raised by the Botswana Democratic Party (BDP) lawyers was that of failure by Mogalakwe to file in time, citing Rule 19 (1) of the CoA Rules: A notice of appeal shall be filed within six weeks of the date of the judgment or decision. Manewe expressed disappointment at Kgoadi’s “failure” to advice his client of the rules. “There is a presumption of law to the effect that a lawyer must know the law. It is trite that you cannot appeal out of time and at the wrong court. It is not the duty of the Court to advise lawyers on points of law,” Manewe said.  

It was against this that he sought the Court to consider costs at a “punitive” scale of ‘attorney and own client’. The matter was brought before a three-member panel of judges  Gaopalelwe Ketlogetswe, Omphemetse Motumise and Itumeleng Segopolo, who challenged Manewe on whether costs on ‘attorney and own client’ scale were necessarily punitive. “Is the attorney and own client scale only applicable when the Court is cross with the losing party? Are the costs only awarded when the Court is angry and wants to display its displeasure?” the judges asked.

“That’s because attorney and own client scale is higher than the ordinary,” Manewe responded. The Court also questioned Manewe’s attitude towards Kgoadi asking the Bogopa, Manewe, Tobedza & Co attorney if he thought his counterpart’s decision to file the application was reckless. “Most lawyers ought to know you cannot bring this kind of matter to the High Court,” Manewe said. “Why take chances with a Court of law? That’s why they ought to be punished.”Given an opportunity to make submissions and perhaps quash any doubts planted by Manewe about his abilities as a lawyer, Kgoadi was at pains to justify his and client’s decision to file the application for leave to appeal. His attempts to cite Kgosikwena Sebele vs The State as a substantial precedent to support his case failed. While he could not be drawn into admitting he had brought the matter before the wrong court Kgoadi’s submissions only served to confirm Manewe’s argument.

“The High Court ought to seek authority from the Judge President of the Court of Appeal to entertain the application. This is a matter of public interest as evidenced by the way it has attracted attention from the media and the public,” Kgoadi argued, inviting an avalanche of questions from the bench. “Are you asking us as the right Court or are you asking us to seek permission from the Judge President? Where is it pleaded in your filing notice that we should seek authority from Judge President? If we are to seek permission are you in agreement that we do not have jurisdiction? Was it so difficult to apply directly to the Court of Appeal next door,” the judges took turns to fire back at Kgoadi. “We thought this was an interlocutory matter,” Kgoadi responded, despite the case having been already concluded in February. While he admitted filing out of time Mogalakwe’s lawyer was caught clutching at straws when asked exactly when, according to him, the mandatory six week period elapsed. 

Responding to Kgoadi’s submission Manewe said as ex-officio members of the Court of Appeal, High Court judges can only entertain an application for leave to appeal by acting on behalf of the CoA in their capacity as ex-officio members. The Court eventually upheld the second respondent (BDP represented, by Manewe and Mothibamele)’s preliminary point in relation to jurisdiction. The Court also imposed costs on a ‘punitive’ scale of attorney and own client as sought by Manewe for ‘ignorance of the law’.   The legal principle ignorantia juris non excusat (one cannot escape liability for breach of law by a plea of ignorance) is a doctrine that a man cannot escape liability for breach of law by a plea of ignorance thereof. “In criminal cases it is of great benefit to the public prosecutor, and in civil cases it is a great protection to private rights. It applies to the blameworthy and is not intended as a trap for the unwary or a tool for the cunning,” legal experts say. 

It is almost impossible to defend ignorance of law. “In most cases you won’t be allowed to argue that you didn’t know or misunderstood the law,” they say. There is also what they call ‘ignorance or mistake of fact,” which according to legal experts is relatively easier to get away with. It was largely on the basis of this principle that Kgosietsile Ngakaagae successfully appealed against Kgosikwena Sebele’s Billy goat sentence, cited by Kgoadi in the Mogalakwe matter. Ngakaagae’s contention was that while the goat in question may not have been the property of the accused, he took it with the honest belief that it actually was his. This case of mistaken identity, Ngakaagae argued, negated the prosecution’s view that there was intent to steal the Billy goat.

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