In a light moment at the tail-end of oral argument in a case in which Gaborone attorney, Tebogo Sebego, was challenging a decision made against him by the Law Society of Botswana (LSB), the court discussion turned to the date of judgement. It was a three-way conversation between Justice Dr. Zein Kebonang and with the lawyers – Gabriel Komboni representing the Law Society and Busang Manewe representing Sebego. Komboni, who is based in Francistown said that not being “deep-pocketed”, his client wouldn’t afford the cost of him making another trip down south for him to attend the reading of the judgement.
If that is indeed the case, those pockets will get shallower after the judgement came out last week. Hopefully, LSB didn’t budget for the P7500 it fined Sebego because Justice Kebonang not only overturned its ruling but also ordered it to pay costs of the case in which it was the second respondent. The other respondents, Rahim Khan in his capacity as LSB chairman and a couple that had reported Sebego to the LSB (Agnes and Michael Brook) will not pay any costs. The monetary cost aside, the Society faces the enormous task of reformulating the way it has been carrying out its disciplinary proceedings over the years.
The case is a result of the Brooks being dissatisfied with Sebego’s lawyering. Between 2007 and 2009, he represented the couple in a number of cases but in 2008, the latter reported him to LSB for professional misconduct. The allegations were that Sebego had defrauded the couple and had been negligent while charging legal costs for court appearances he had never made. When the amicable settlement that the LSB had hoped for didn’t materialise, it took it upon itself to resolve the matter using its internal disciplinary processes. LSB’s Disciplinary Committee (DC) would later inform Sebego that it had found a prima facie case (the establishment of a legally required rebuttable presumption) against him. He was invited to give his side of the story, an offer he took up after a long while. The outcome was a guilty verdict against the lawyer and a fine of P7500. It was then that Sebego went to the High Court asking it to overturn such verdict.
Central to the case was whether the Law Society had faithfully followed the disciplinary procedure as outlined in the Legal Practitioners’ Act. In terms of the Act, complaints of professional misconduct against a legal practitioner are to be referred to the DC of the Law Society. On receipt of the complaint, the committee investigates and if satisfied that a prima facie case of misconduct has been established, must either refer the latter to the LSB Council if the misconduct warrants suspension or disbarment or it may impose what it considers appropriate disciplinary function.
The Act says that the Society must investigate a complaint “as it may think fit” but what form such process should take became a matter of contention between Manewe and Komboni. What happened in Sebego’s case was that the Brooks submitted a written complaint and having determined that a prima facie case had been established, the DC invited Sebego to tender a response. After deliberating on the matter, the Committee found the lawyer guilty and fined him. Manewe interpreted “investigation” in the context of an elaborate, boots-on-the-ground exercise and on score of the fact that the Society’s ruling makes no indication of having undertaken such, his contention was that no investigation ever occurred. He argued that it is such investigation that leads to the determination of a prima facie case. It is such investigation that establishes the conditions for making the determination of a prima facie case, he said. The scenario that he offered the court was of the Committee members “sitting around a table, looking at the [Brook’s] letter and saying ‘there is a prima facie case’ without conducting an investigation.” He described such apparent lapse as “a fundamental abdication of duty by the Law Society.”
Conversely, Komboni harped on the provision that says that the DC shall investigate complaints “by making such enquiries as it may think fit.” He said that in the particular case of Sebego, the Committee used its discretionary powers chose to proceed in the manner it did.
In his judgement, Kebonang endorsed Manewe’s argument noting that a complaint cannot mean a finding of professional misconduct.
“It is for this reason that the law enjoins the Disciplinary Committee to investigate complaints filed, before it can make a determination of whether or not a prima facie case has been established … The reason why a complaint must be investigated and why the significance of an investigation should not be minimised is because an unmerited accusation or complaint can ruin reputations, destroy careers and lives. Given that disciplinary proceedings against attorneys are largely penal in character, the Disciplinary Committee cannot and must not draw conclusions without a proper investigation. Accordingly, the mere submission of affidavits without more would constitute a proper investigation,” the judge said.
During oral argument, Manewe had asserted that charges are supposed to be specific and that “professional misconduct” expressed in broad terms didn’t meet such standard. Komboni counterargued that the complaint itself was very well detailed. Having been formally notified of the complaint against him, Sebego deposed to his own affidavit in which he stated that he understood what was being alleged against him. Komboni said that this affidavit stands as proof that the lawyer was well aware of the charges that had been levelled against him.
Ruling on this point, Justice Kebonang said that it is important to specify charges against a legal practitioner in order that s/he could respond accordingly.
“Until the particulars of complaint have been provided to an attorney therefore, there can be, in my view, no case against him,” the judgement says.
From here on out, Sebego (who is president of the Botswana Football Association), started scoring point after point. Upon reviewing minutes of an LSB meeting, the judge found that “the Disciplinary Committee never investigated the complaint against the applicant.” A few paragraphs later, the judgement says that “there can be no finding of a prima facie case in the absence of an investigation” and that “merely because the Disciplinary Committee strongly believes that the accused attorney is guilty of professional misconduct is not a sufficient basis to find that there is a prima facie case.
“The breach of the statutory duty to investigate the complaint therefore renders the proceedings before the Disciplinary Committee a nullity and so I hold,” reads the most telling part of the judgement.
Sebego’s victory means that the Law Society will have to rework its DC process, task that will require reducing the committee’s workload. Kebonang found “problematic” a state of affairs in which the DC investigates complaints referred to it, weighs the evidence, determines whether a prima facie case has been established and imposes the necessary disciplinary penalty.
“In my view, the repository of both the investigative and adjudicative functions on the Disciplinary Committee violates the rule against bias and the decisions taken by the Disciplinary Committee would have been void for this reason too,” he said in the judgement.
