This probably is the first time that a local lawyer with an interest in legal aid would want to go beyond the usual frontiers of debate and explore that other enigmatic world of lawyers and courts which traditionally has been hidden from ordinary people. Before President Ian Khama made a keynote address last month in support of a sustainable legal aid system at the Workshop on Access to Justice, legal aid was mainly relegated to seemingly eccentric activists such as Ditshwanelo and the University of Botswana’s Legal Clinic. To be sure, until then, I thought that workshops were occasions for levity. After listening to Khama’s speech, I have since been persuaded that workshops can be occasions for gravity. While I, for one, may not be the person whom some think could make useful interventions since I belong to an ivory tower, there are differing viewpoints emerging rapidly on this important topic. In writing this article, I wish to encourage debate and discourse on the feasibility of a publicly funded legal assistance project for the poor.
The matter is, of course, one which is close to the hearts of many well-meaning citizens. It is also one regarding which passion can cloud the minds because of the strong emotional appeal of some of the arguments advanced by interest groups. It will be noted that I depart slightly from the traditional way of looking at issues to which many in this country are accustomed. Instead, I examine the role of institutions and interest groups in facilitating or hampering legal access, with a keen eye on the regime of the High Court and lawyers’ attitudes. In Part 2, I propose that the legal profession ought to be restructured and argue that this process is already underway but has, hitherto, escaped the attention of legal analysts. At the end of Part 2, it will be clear that my own views are profoundly different from orthodox thinking.
Most people know by now that, under our law, citizens are not entitled to the assistance of lawyers as a matter of right. In certain types of criminal cases (but only in those where a person is charged with murder or treason), our legal system recognises the right of an accused to legal assistance. As regards other cases (criminal and non-criminal), the idea that citizens are all entitled to equal protection of the laws rings rather hollow, especially to the poor. Since the poor represent the majority, it stands to reason that the majority of people in Botswana do not enjoy equal access to the courts. This is the challenge posed by President Khama to the nation.
When I participated in a workshop hosted by DITSHWANELO a decade ago, I indicated that on average, it cost a litigant a minimum of P50,00 (excluding the payment for legal representation) to begin a legal suit and hypothesised that this amount was way out of reach for many people of moderate or no means. My argument was predicated on my experience at the UB Legal Clinic. Two years ago, the High Court, in its wisdom, substantially increased these tariffs, by 100% in some instances.
I have since calculated that, currently, a person who wishes to start a case in the High Court, say, an unopposed divorce case, would in the ordinary course of events have to part with at least P330 to file pleadings (summons, power of attorney, settlement agreement, entry for trial, set down, pre-trial minutes, final order). However, in a divorce case, which is opposed (not to say anything about other types of contested cases), the costs can be prohibitive as lawyers fight over complex technical points often involving the drafting, filing and exchange of myriad court papers stating endless (even spurious) arguments and counter-arguments. It should not be very difficult to imagine the plight of the poor if it is recalled that only last year multitudes of primary school goers were turned back to their homes owing to their parents’ impecunious circumstances.
Why should the blame be laid at the door of the High Court? Why do I draw attention to the payment of tariffs required from all those who take their cases before the High Court? First, the payment to the High Court is an unlawful tax. Second, the practical consequence of such payment, (in addition to lawyers’ fees which are rather on the high side), is to deny access to the courts to the vast majority who are neither employed nor can afford to pay for justice. I will continue to claim that the High Court requires clear legislative authority to tax parties to a lawsuit, a power that it does not posses.
Whilst this article is not really concerned with statutory interpretation in general, I want to argue that the law governing the High Court, which authorizes it to make rules of court providing for the fees payable by litigants, falls far short of the requisite legislative authority to impose tax. It cannot be over emphasized that the common law generally does not impose liability for tax. In order to levy tax one has to start from clear authority by way of an Act of Parliament to tax particular natural or juristic persons. One must fall within the scope and words of the charge imposing tax, otherwise one escapes the liability to pay tax. For example, the law on the administration of the estates of persons who have died with or without a will clearly authorizes the Master of the High Court to charge specified fees in respect of various acts done by him or in his office. Accordingly, the rules of court are unlawful because they impose an unauthorized levy. The High Court cannot be allowed to continue to usurp the constitutions remit of the Parliament.
Access to justice is also restricted by the High Court’s default. The law that I referred to earlier says that rules of court may be made to provide for lawyers’ fees and costs, their amount, taxation and recovery. In other words, such rules may govern the terms upon which lawyers can accept and claim their fees and costs. Lawyers can do so in their capacity as attorneys, notaries public, conveyancers, trustees, executors, etc. Indeed, persons nominated by those dying or appointed by the court to administer and settle the deceased’s estate are entitled to receive a fair and reasonable compensation assessed in terms of a court tariff if no remuneration was fixed by the deceased by will. Strangely, the High Court has not implemented this rule with respect to other professional fees, despite consistent public outcry on the incidence of supposedly high professional fees.
Traditionally, lawyers’ fees (which include disbursements) are either agreed by client and lawyer in advance of the representation, or charged ex post facto on billable hours or flat fees. What is the High Court’s difficulty in developing a tariff of lawyers’ fees for attorneys, advocates, conveyancers or notaries public? Part of the answer (dare I say it) is that the legal profession is increasingly becoming a formidable lobby group. But that it should be so is by no means peculiar to this country. Nevertheless, in certain leading economies lawyers’ fees are regulated by official tariffs. Of course, a tariff scale will vary on the basis of the complexity of the legal problem, the seniority and experience of counsel, the magnitude of the sums involved, or even the outcome of litigation.
The main point concerning the outcome of litigation is very important. Some legal systems recognise an agreement made in advance pursuant to which the lawyer’s payment is to be a percentage of the amount recovered. In this instance, the lawyer does not insist on payment beforehand but runs the calculable risk of non-payment in the event that his or her client loses the case. This means that many a litigant can easily access the courts on the basis of contingency fees.
However, despite its positive practical consequences a contingency fee is considered highly unethical if not outright illegal in this country, although it is not for me to speculate as to whether contingency fees are altogether unknown by practitioners in Botswana.
Legal costs (as opposed to legal fees) are regulated by the rules of court. Broadly speaking, legal costs belong to or are incurred by the client. In Botswana, however, the problem appears to be how legal costs are treated by lawyers in their relationship with clients. The general rule in court cases is that a successful party is awarded costs. This rule implies that the disbursements, expenses, etc, incurred by a lawyer who is representing his or her client in a court dispute will be paid by the loser. Costs are treated differently from fees by the current rules in that costs are monitored by court officials via the taxation system while fees are not subjected to policing. Nonetheless, a client who complains about a fee note raised by a lawyer would be well advised to go to the High Court Registrar and request taxation of the disputed fee.
Although costs strictly speaking belong to the winning party, some (if not most) lawyers in this country are in the habit of treating the costs awarded as if the money belongs not to the client but to the lawyer representing the winner. This is highly unethical if not fraudulent. Once again, the client who complains about the lawyer appropriating such costs without the client’s express agreement would be well advised to go to the Registrar or the Law Society of Botswana for assistance.
The point about costs belonging to the winner can be put more graphically if I mention, yet again, the cost-risk. This is better explained by looking at this cost-risk from the point of view of the losing litigant. In some (unusual) circumstances the courts can allow the winning party to recover his or her lawyer’s fees (as part of the legal costs) from the loser. Thus, in addition, the burden already imposed by the court (the tariff) to begin or defend the case, the loser has to pay the fees of his or her own lawyer as those of the winner’s lawyer. The reader should note that in this context the fees are part of the legal costs, and the penalised client’s lawyer is not being asked to pay. In other words, this is not an order for costs de bonis propriis which are borne directly by the lawyer representing a client, such as where the court considers that costs have been incurred unreasonably or improperly.
In conclusion, I propose robust implementation of the existing court rules so that lawyers’ fees are seen to be regulated by official tariffs. But lawyers should be allowed to agree contingency fees with their clients. This would go a long way in granting those of moderate means better access to the courts. It would mean stricter regulation of lawyers’ fees. More important, it would blunt the appetite of those lawyers ready to confiscate their clients’ legal costs.
*Michael Mothobi can be contacted at [email protected]
