Prominent lawyer and Gaborone socialite, Tebogo Sebego is taking Law Society of Botswana to court after it had found him guilty of professional misconduct and fined him P7 500. This was after his former client, Agnes Duduzile Brook filed a complaint with the LSB, accusing the attorney of abuse of office.
In court papers filed by his attorneys, Bogopa, Manewe, Tobedza and Company, Sebego wants the High Court to review and set aside the decision of Botswana Law Society’s Disciplinary Committee findings against himself.
He argues that since a proper inquiry into the substance of the complaint was not undertaken, a Disciplinary Committee’s decision based on an improper or no investigation at all cannot be relied upon and must therefore be set aside.
“I am advised by my attorneys of record that in terms of section 50(2) of the Act, once the Disciplinary Committee has investigated and formed the opinion that the complaint discloses a prima facie case of unprofessional conduct on the part of the legal practitioner, it shall furnish the legal practitioner with particulars of the complaint and call on him to furnish it with his explanation regarding the complaint within a specified time,” says Sebego.
He believes that during the disciplinary proceedings, he was never furnished with the ‘particulars of the complaint’ after the Disciplinary Committee formed the view that he had a case to answer.
“What the Disciplinary Committee did was send me a letter informing me that it had considered the matter and formed a view that there is a prima facie case against me of ‘professional misconduct’. The Disciplinary Committee then attached a copy of Mrs Brook’s affidavit to this letter,” he said.
Sebego says it was only when he was served with the ruling that it became apparent to him that at least one of the ‘charges’ was based on regulation 42.1.13; neglecting to give proper attention to the affairs of client.
“This is because I was found guilty on this charge. I was found guilty of regulation 42.1.13 but I was never charged on the basis of regulation 42.1.13 or any other regulation for that matter as it is apparent from a reading of the Disciplinary Committee’s letter,” he said.
It is therefore Sebego’s argument that when he was requested to respond to the complaint, he did not know with sufficient particularity and certainty, what Act or omission he had allegedly committed which contravened the requirements of ‘professional conduct’.
“It would be quite shocking if the Respondents seek to rely on the various allegations as couched in the Affidavit of Mrs Brook, a lay person, as the particulars of the complaint. In her affidavit, Mrs Brook accused me of a number of offences including professional malpractice, fraud and lying under oath, malice, disgraceful conduct, slander, and criminal practices,” said Sebego.
He says that justice and due process required that the complaint of misconduct levelled against him ought to have been set out in terms which left him with no doubt as to the precise nature of the complaint or charge.
“This lack of clarity and precision effectively disabled me from adequately defending myself. This would even explain why in due course I felt the need to seek leave to submit further information,” he said.
He states that Law Society failed to inform him of the date of consideration of the matter or to consider my request to make further representations resulting in an unfair hearing.
“I made a request to the 1st Respondent to be granted leave to submit further information. In my view, this information was crucial in assisting the Disciplinary Committee in deciding the matter. At the time I made this request, a decision had not been made or communicated to me hence my belief that there was an opportunity to make a request to make further representations,” he said.
On 6th February 2015, Sebego said, he received a letter from the Disciplinary Committee advising him that his request would be considered at a meeting which was scheduled to be held on 10th February 2015. He was advised that the resolution of the Disciplinary Committee would be communicated to him thereafter.
“I am advised by my attorneys of record that even though the Legal Practitioners’ Act or the Regulations do not grant a legal practitioner a right to be present when the matter is considered, it would be in line with the requirements of a fair hearing to inform the legal practitioner of the date on which the matter will be considered,” said Sebego.
This, the lawyer said, would ensure that if the legal practitioner wishes to make some form of request prior to that date, same can be made and considered before a decision on the main matter is taken.
“In my case, I was not made aware of this date, I was not aware that the matter had been considered and since I had not received a decision, I felt justified in making my request to apply for leave to make further representations. Had I known that the matter would be considered on the 9th September 2014, I would have made my request prior to this date,” said Sebego.
He states that by failing to consider his request to make further representations or to respond in one way or the other to this request, the Disciplinary Committee as a body charged with the determination of matters that affect parties, failed in affording him a fair hearing to the detriment of his professional standing.
The Disciplinary Committee’s failure to either grant or reject his request is a clear indication of how flawed the decision making process was.
“While I waited for a response, the Disciplinary Committee went ahead and made a decision on 24th March 2015 without communicating the outcome of my request,” he said.
Therefore Sebego said, he was not afforded a fair hearing by the Disciplinary Committee as required by the rules of natural justice.
“The Disciplinary Committee failed in its role as an investigating body by failing to carry out a reasonable and sufficient investigation which investigation would have disclosed the fact that the evidence placed before it by Mrs Brook was not correct. The Disciplinary Committee would have realised from the court record that the complaint by Mrs Brook is without merit,” says Sebego.
He says the Disciplinary Committee failed in its role as a disciplinary body by failing to properly charge and provide particularity as to the precise misconduct he was being accused of.
“The Disciplinary Committee failed in its role as a disciplinary body with quasi-judicial functions to make a decision regarding my request for leave to submit further information which information would have had an impact on the outcome of the matter,” he says.