Wednesday, May 25, 2022

‘Sympathetic’ court dismisses lawyer’s petition

A government lawyer who had petitioned the Lobatse High Court seeking admission as an attorney suffered a debilitating set back on Wednesday when a ‘sympathetic judge’ dismissed his petition.
The petition was opposed by the Law Society of Botswana.

The judge, Lakhvinder Walia, dismissed the petition by state prosecutor Friday Leburu of the Directorate of Public Prosecutions (DPP) because he (Leburu) had not simultaneously taken the prescribed examinations in accordance with the Legal Practitioners Act.

“This is an unfortunate result for the petitioner and I have great sympathy for him. It is iniquitous that a candidate who has passed all the prescribed examinations should be denied admission because the examinations were not taken simultaneously,” pronounced Justice Walia when dismissing the petition.

The judge further said that the petitioner may justifiably feel hard done by others in his situation, having been admitted by reason of non-objection by the society.

That notwithstanding, Justice Walia said no material had been placed before him to support Leburu’s contention of unequal treatment and the court was therefore not able to deal with that aspect of the petitioner’s argument.

Walia said it was crystal clear from the language of Rule 6 (6) that the petitioner was required to re-write the whole examination.

“His writing only three subjects instead of all the five was therefore in violation of Rule 6 (6) of the Act,” pronounced Walia who did not order costs.

He said the obvious consequence of this is that not having taken all the examination at one sitting, Leburu has not obtained the additional qualifications envisaged by Section 4 (1) (b) (ii) of the Act.

In his petition, Leburu, who obtained the degree of Bachelor of Laws from the North West in South Africa had sat for the qualifying practical examinations in terms of Section 4 (1) (c) of the Act.
He passed three of the five examinations written. He passed civil and criminal procedure and failed accounting for lawyers and Administration of Estates but had also not attained a 66 percent mark in any of the subjects passed.

However, the society directed that he re-writes the subjects he had failed and he successfully did. Leburu argued in his petition that he had passed all the examinations albeit at separate sittings and as such he was qualified for admission.

The society on the other hand objected saying on a proper interpretation of Rule 6 (b) of the Legal Practitioner’s (examinations and qualifications for admissions rules), he was required to re-sit all the subjects, including those he had previously passed as he had not attained a 66 percent mark in any of those subjects.

He argued that the additional qualification envisaged by Section 4 (1) (b) of the Act did require no more than passing of an examination and that the imposition of further conditions by the society was in violation of the Legal Practitioners Act.

Leburu further argued that he re-sat the two examinations he had failed only on the basis of the society’s specific representation that he was not required to re-sit all the examinations and that the society was therefore estopped from contending otherwise.

The judge, however, dismissed Leburu’s argument saying Sections 4 (1) (b) (ii) and (c) made no stipulations as to the nature of the examinations, the subjects to be offered or the required pass marks.

“All those are left to be prescribed,” held the court.

The judge said on a proper interpretation of Section 4 of the Act, he saw nothing circumscribing the scope of the rules made in pursuance thereof and the rules merely prescribed what is to be required to be prescribed under Section 4.

“I can see nothing in the Act or the rules preventing the setting of specific standards or pass marks. The ultra vires argument therefore fails,” pronounced Walia.

He said it was common cause that the society directed the petitioner to re-sit only those subjects which he had failed and those in which he had obtained less than 66 percent marks and was thus not required to re-sit civil and criminal procedure as he had passed as per the requirements of the Act.
However, at the hearing the society conceded that its representations were based on an erroneous interpretation of Rule 6 (6).

The court held that the society’s representations based on an erroneous interpretation of the rules did not override the clear stipulations of the rules as it was a fundamental principle of interpretation of statutes that where the language of a statute was clear and unambiguous, the court must give the words their literal interpretation.

He said in his view, a proper interpretation of Rule 6 (6) requires that the whole examination be re-written by a candidate and it was clear that “in this situation, the whole examination is to be re-written, notwithstanding that the candidate would have attained in the other subjects, or any of them, a pass mark of 66 percent or higher”.

Following the delivery of the judgment, Leburu said he is appealing because as this was a test case, his preliminary view was that the judgment left many questions unanswered.

“Even a successful litigant will not raise his head high about it. We have to give the Court of Appeal the opportunity to rise to the occasion and determine the appeal,” he said.

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