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IN THE COURT OF
APPEAL OF BOTSWANA HELD AT

GABORONE

CACGB-001-12

DATE:
26 FEBRUARY 2013

In the matter
between:

EVA-CLAIRE
THOMPSON……………………………………………Appellant

And

THE LAW SOCIETY
OF BOTSWANA……………………………Respondent

Mr. A. E. Bayford
for the Applicant

Mr. M. P. Sepego
for the Respondent

RULING

LESETEDI J.A.:

1. The Applicant is
an American (U.S.A.) citizen. She holds a degree of Juris Doctor from
the University of South Carolina in the
United States of America.

2. The Applicant has
been resident in Botswana since January 2011. In November 2010 she
filed a petition with the High Court for
admission as an attorney of
the High Court and other Courts of Botswana “[a]nd thereafter,”
as a Conveyancer and Notary
Public for the said courts. She also
sought the granting of a consequential relief of authority for her
enrolment as such. It sees
to me from a proper reading of Section 8
of the Legal Practitioners’ Act that the petition for
admission, as a Conveyancer
and Notary Public can only be made after
one has been admitted and enrolled as an attorney.

3. Petitions by
legal practitioners for admission to practice in the jurisdiction are
made under the Legal Practitioners’
Act (Cap. 61:01 of the Laws
of Botswana) hereinafter referred to as “the Act”.
Section 10 (3) of the Act requires that
such petition together with
copies of supporting affidavits and certificates be served on the
Attorney General and the Law Society
of Botswana within a specified
period before the date of hearing. Under Section 10 (3) of the Act,
the two or any legal practitioner,
may, with leave of the court,
appear as amicus curiae to oppose the petition.

4. In the court a
quo, the Respondent sought leave to oppose the petition and filed a
detailed affidavit vigorously opposing the
petition on the ground
essentially that the Applicant did not meet the statutory
requirements for admittance as a legal practitioner
in the country.
At some stage the petition was struck out for non-appearance of the
parties but subsequently it was reinstated.
From there on it is not
evident on the record whether the Respondent continued to actively
participate in the proceedings in that
court. The Applicant having
amended her petition to address some of the Respondent’s
arguments, the petition was then head
by the court a quo.

5. The petition was
turned down by the High Court with no order as to costs. The material
findings of the High Court which founded
the refusal were that:

a) The Applicant had
not sought exemption under Section 6 (2) of the Act and therefore had
to comply with the provisions of Section
4 (1) (b) and (c) of the
Act;

b) On a plain
reading of those provisions of Section 4, the Applicant had not
complied with the specified requirements;

c) That the
petitioner had failed to show that she was ordinarily resident in
Botswana or that she intended to permanently reside
in the country;

d) She has failed to
show that there is a reciprocal provision in the law of the country
of which she is a citizen permitting a
citizen of Botswana qualified
in terms of the laws of that country to be admitted to practice in
that country.

6. Dissatisfied with
the outcome of her petition, the Applicant filed an appeal against
the refusal. Security for costs of the appeal
was set by the
Registrar of the court below as required under Rule 19 of the Court
of Appeal rules.

7. When the matter
was called during the roll call of the January 2013 session of this
Court, the said security had not been paid
and it emerged that the
time line for such payment had lapsed several months earlier. The
explanation given by the Applicant’s
attorney for non-payment
of such security was that the Registrar of the court below had not
communicated with him the time line
for payment of such security. The
attorney however assured the court that the security was available
and the following consent
order was made:

“1. Security
of P20,000.00 is to be paid in cash by not later than Friday 11th
January 2013 failing which the appeal will
be dismissed.

2. This matter is
postponed to 1st February 2013 …”

8. Come the 1st of
February 2013, the Applicant had not paid any security let alone
within the time frame ordered. More than double
the time frame given
in the order of the 4th January 2013 for the payment of the security
had lapsed and no application for further
extension of the time
frame, or, an affidavit explaining the default had been filed.

9. After hearing the
parties, another indulgence was given to the Applicant with the
following court order being issued –

“1. The case
will be listed for dismissal on 14th February 2013 provided that
should the appellant lodge an application for
condonation by no later
than Friday 8th February 2013, that application will be called on
14th February 2013.

2. The respondent
shall, in that event file and serve its answer, if any, before close
of business 13th February 2013.

3. The appellant
shall, in addition lodge the sum of P20,000 in cash security on or
before the said date of 13th February 2013,
failing which the appeal
will be dismissed without argument on any application.

4 ”

10. The 14th
February 2013 was the roll call date for the February 2013 Court of
Appeal session. This time when the matter was called,
the Applicant
had complied with the court order albeit paying the cash security on
the last day. The condonation application had
also been filed on the
last day. The Respondent filed a notice of opposition but no further
papers except a notice of non-opposition
filed on the eve of the
hearing of the application. At the roll call on the 14th February
2013, the Respondent had made no application
for extension of time to
serve its answer, if any, to the application. The notice of
non-opposition was filed on the 21st of February
2013. The reason for
laying this background in such detail shall emerge in due course of
this decision.

11. Immediately
after the roll call on the 14th February 2013, attorneys for both
parties approached the presiding Judge in chambers
to seek clarity on
the form in which the application for condonation was to take. They
took the view that the application for condonation
would only be in
the form of argument on the explanation for the non-compliance
regarding payment of security and nothing more.
On the advice of the
presiding judge, they wrote seeking direction from the Judge
President who had issued the 1st of February
2013 Court order and the
direction given under the hand of the Registrar of this Court was
clear. It predates the notice of non-opposition
and states –

“EVA-CLAIRE
THOMPSON v LAW SOCIETY OF BOTSWANA – CACGB-001-12

Application for
condonation refers.

Condonation is an
indulgence not a right, to obtain condonation the Applicant must:

a) Give a reasonable
explanation for non- compliance

and

b) Show prospects of
success on appeal since the appeal is no longer one of right.

If it is the Law
Society’s position that the appeal has no prospects of success,
the court would wish to hear arguments on
this.

It remains for the
court to decide whether or not to grant condonation for late payment
of security for costs.”

12. It was against
this background that the matter was called for hearing on the 22nd
February 2013. Mr Sepego for the Respondent
once more confirmed the
non-opposition and advised the Court that the Respondent was
satisfied with the Applicant’s explanation
for failing to pay
the security timeously. He however took the position that the
Respondent was not conceding that the Applicant
had reasonable
prospects of success on appeal. Probed on how then the Respondent
could take a position of non-opposition of the
application in the
light of the requirements for condonation as clarified in the
Registrar’s letter, Mr Sepego shifted ground
and informed the
court that the Respondent conceded that the Applicant had reasonable
prospects of success on appeal. Further asked
by the court whether
the Respondent and its attorneys had taken the position after an
informed consideration of both the law and
the papers filed of
record, he, after a tortuous explanation, confirmed so.

13. It is necessary
to point out that in an application for condonation the Applicant is
seeking an indulgence from the court to
condone an act of
non-compliance which has resulted in a loss of a procedural right on
the part of the Applicant. What is required
of an applicant in such a
situation is to show sufficient cause for condonation of such
non-compliance. Of

sufficient cause,
the words by HOLMES JA in MELANE v SANTAM INSURANCE CO LTD [1962] 4
All SA 442 (A) @ 443 have been accepted as applicable even in our
jurisdiction. Essentially in deciding whether or not to grant
condonation,
the court exercises a discretion by carrying out a value
judgment of weighing and balancing several factors and considerations
in order to achieve what it considers a fair decision in the
circumstances. The factors include the nature, cause and extent of

delay often termed the “explanation for the delay”; the
prospects of success; and the importance of the case. The importance

of the public principle of the need for finality to litigation is of
course a consideration that is ever present when the explanation
for
delay is being considered. All these factors are interrelated and a
weakness in one may be compensated by the strength of another.
It is
clear however that where prospects of success on the merits are
non¬existent, it is futile to grant condonation in an
application
for leave to appeal. See, SENKHANE v S [2011] 4 All SA 257 (SCA);
PALMER AND SONS TRANSPORT AND ANOTHER v

TIPHE TRANSPORT
HOLDINGS (PTY) LTD AND OTHERS CACGB-026-12 (CA) (unreported).

14. It must
therefore be clear from the above that condonation is not a given at
the Applicant’s asking. See, REX v MKHIZE
1940, A.D. 211. So
too although non-opposition to an application for condonation may be
a factor relevant for consideration, it does not fetter
the court’s
discretion. Put another way, it is not an overriding consideration
and the Court is not bound by it. See, P E
BOSMAN TRANSPORT WORKS
COMMITTEE AND OTHERS v PIET BOSMAN TRANSPORT (PTY) LTD 1980 (4) SA
794 (AD) @ 797G.

15. The explanation
for the Applicant’s failure to comply with the Registrar’s
order is not furnished by the Applicant
in her affidavit. The
attorney sought to give an explanation from the bar but having been
given the opportunity to file an application
for condonation, such
explanation ought to have been provided on affidavit to give the
other side an opportunity to deal with it.
In any event it was a
repetition of the same explanation given to the Court on the 14th
January 2013.

16. The Applicant’s
explanation for non-compliance with the Court order of the 4th
January 2013 is that at her attorneys’
instance, she and her
attorneys held a meeting with the Respondent’s attorneys on the
10th January 2013. She says that the
purpose of the meeting was to
explore whether issues relating to her admission could not be
resolved by the parties through dialogue.
The further purpose of the
meeting was to negotiate either a waiver of the Respondent’s
demand for costs or a reduction of
the security amount.

17. The Applicant
states further in her affidavit that the Respondent’s lead
counsel Mr Maripe was sympathetic to her overtures
and indicated he
would seek his client’s instructions on the matter. It appears
certain correspondence then passed between
the parties on the
subject. The Respondent does not dispute the alleged meeting and its
objects. I therefore accept that that indeed
transpired.

18. There is however
no explanation of how the matter was concluded, let alone in the
light of the time limits set by the court
on the 4th January 2013.
Certain questions in any event come to mind relating to this
explanation and the conduct of the parties
and their attorneys. The
10th of January 2013 was the eve of the last day for the payment of
the security in terms of the Court
Order. There is no explanation for
the void between the 4th January and the 10th January. It is not
being said what the Applicant
was doing to comply with the Court
Order during this period.

19. Secondly, there
is no explanation why the Applicant could not pay the full amount
which the court was assured was available
at the roll call of the 4th
January 2013. Mr Bayford’s attempt to render an explanation
from the bar at the hearing of the
application is unacceptable. Such
explanation should have been on affidavit as part of the explanation
of the non- compliance.

20. Thirdly, that
the parties could somehow resolve the issue of the Applicant’s
admission as a legal practitioner through
dialogue exhibits a
misunderstanding of the clear provisions of the Legal Practitioners
Act. It is to the High Court that an application
for admission as a
legal practitioner in this country is made. The Respondent can only
be involved as a friend of the court and
with leave of the Court not
as of right. When the High Court has delivered its decision on the
merits of a petition, it is only
to this Court that a petitioner can
further take the matter.

21. Furthermore, the
Respondent would be misconceiving its oversight role as the Council
of the Law Society if it were to negotiate
out of court to resolve
issues relating to the admission as a legal practitioner of a person
whose petition for admission has been
refused by the lawful statutory
authority to grant such admission, the High Court. It is not only
unprincipled but an act in futility
as that does not lie within the
remit of its powers. The Society is a statutory body and the only
powers it has are those conferred
by statute. The attorneys for both
parties sought to have been alive to that.

22. Fourthly, the
attitude of the parties’ attorneys in the alleged negotiation
exhibits a misunderstanding of the rules of
this court in relation to
the object of security for costs set under Rule 19 of the Rules of
this Court. That rule in so far as
it is relevant to the present
matter reads –

The appellant shall,
within such times as the Registrar of the court below shall fix,
deposit such sum as shall be determined by
such Registrar … for the
due prosecution of the appeal and for the payment of any costs which
may be ordered to be paid by the
appellant;”

(underlining for
emphasis)

23. Mr. Bayford
quite properly conceded that the security for costs serves two
purposes, that is, it first serves as security for
the due
prosecution of the appeal and, secondly, as security for any costs
which may be ordered to be paid by the appellant. The
first objective
is a public purpose objective which the Respondent could not
competently waive as to do so would have been in violation
of the
quilibet rule. Nor could the Respondent’s consent to a
reduction of the security, if it was competent to do so, explain
the
default when the negotiations did not have the approval of the Court
and the deadline for payment of security had lapsed.

24. In any event,
the court order of the 4th January was made by consent and it was
only the Court which could vary it if satisfied
that circumstances
had since changed necessitating such variation. There were no such
changes. The real reason for non-compliance,
as demonstrated by the
Applicant’s last minute sale of her motor vehicle to raise the
security and her own final admission,
was a financial one. She did
not have the money. But she does not come out in her papers to
candidly explain her attorney’s
assurance to the Court on the
4th January 2013 that the security was available, an assurance made
in her presence.

25. All the above
observations seriously weaken the substance of the explanation. It
will require very strong grounds of appeal
for leave to be granted.

26. The question
whether or not the applicant has good prospects of success on appeal
can be answered upon a full examination of
the provisions of Sections
4 and 6 of the Act and an understanding of their import and purport.
The answer, as rightly stated by
the Applicant in her papers, falls
to determine her prospects of success on appeal.

27. Section 4 of the
Legal Practitioner’s Act provides:

4. (1) A person who
is a citizen of Botswana shall be qualified to be admitted as a legal
practitioner if he satisfies the court
that –

(a) he is a fit and
proper person;

(b) he has obtained
by examination –

(i) the degree of
LL.B. from the University of Botswana, University of Lesotho,
University of Swaziland or the former University
of Botswana, Lesotho
and Swaziland or Botswana and Swaziland referred to in section 8 of
the University of Botswana Act; or

(ii) a bachelor’s
degree in law from any of the universities specified in the Second
Schedule or such other prescribed university
together with such
additional qualification, if any, as may be prescribed; and

(c) he has passed
such practical examinations as may be prescribed.

(2) ”

28. Since the
Applicant is not a citizen of Botswana and Section 6 of the Act being
the one relating to qualification for admission
of a non-citizen as a
legal practitioner, it requires to be set out in full and reads:

“6. (1) A
person who is not a citizen of Botswana shall be qualified to be
admitted as a legal practitioner if he satisfies
the court that –

(a) he is a fit and
proper person;

(b) he has complied
with the educational requirements

(c) specified in
paragraphs (b) and (c) of section 4(1);

(d) he is ordinarily
resident in Botswana or intends to reside permanently in Botswana;
and

(e) there is a
reciprocal provision in the law of the country of which he is a
citizen to permit a citizen of Botswana qualified
in terms of the
laws of that country to be admitted to practise in that country.

(2) A person
referred to in subsection (1) may be exempted from complying with the
provisions of paragraphs (b) and (c) of subsection
(1) of section 4
if he satisfies the court that he is qualified to practise in a
prescribed country having a sufficiently analogous
system of law and
that his qualifications are such as to render him suitable for
admission and fulfils such conditions, whether
as to status or
proficiency, as may be prescribed.”

(underlining for
emphasis)

29. In her petition,
the Applicant had to satisfy the Court on the four requirements set
out in Section 6(1). She could however
under Section 6(2) be exempted
from complying with the provisions of Section 4(1)(b) and (c)
referred to under Section 6(1)(b)
above, if she sought such exemption
under the said Section 6(2). From a reading of Section 6(2) of the
Act there is no doubt that
to obtain such exemption, the Applicant

had to satisfy the
court on three requirements as set out in the statutory provisions.
These are –

(a) that she is
qualified to practise in a prescribed country having a sufficiently
analogous system of law;

(b) that her
qualifications are such as to render her suitable for admission; and,

(c) she fulfils such
conditions, whether as to status or proficiency, as may be
prescribed, (underlining for emphasis)

30. In her petition,
the Applicant in so far as seeking an exemption is concerned stated:

“Your
petitioner is not a citizen of Botswana, but petitions this
Honourable Court for exemption as indicated in the Legal

Practitioners’Act (Cap 61:01) (hereinafter referred to as “The
Act”), Section 6(2) as being qualified to practise
in a
prescribed country having sufficiently analogous system of law and
the qualifications render her suitable for admission as
prescribed.
The State of New York has a specified university in the Second
Schedule, thus showing the prior

recognition of the
Republic of Botswana of the sufficiently analogous system of law of
the State of New York.”

31. Whether or not a
country is a ‘prescribed country’ under Section 6(2) of
the Act is a question of fact to be determined
from the Schedules to
the Act itself. The only authority entitled under the Act to
prescribe a country for purposes of Section
6(2) is the Chief Justice
under Section 54(a) of the Act. It is common cause that the Chief
Justice has not made any regulations
prescribing any country or any
conditions whether as to status or proficiency regarding
qualifications for suitability of admission
by non-citizen attorneys.
This ipso facto means that neither United States of America as a
country nor through a selection of some
of its States or Universities
constitute a prescribed country. This point has been conceded, and
quite properly so, by the Applicant’s
attorney during the
hearing.

32. To the extent
that the Applicant stated in her petition that she is qualified to
practice in a prescribed country that statement
was false. Whether a
country has a sufficiently analogous system of law to Botswana or
not, is a secondary inquiry in that once
a petitioner fails to
establish that she is qualified to practice in a prescribed country
that is the end for then there is no
prescribed country to which a
comparison of the legal system is to be made with that of Botswana.
It may even be debatable whether
that question is addressed when the
Chief Justice prescribes the country not by the judge determining the
petition. That however
is a question for another day.

33. The use of ‘and’
several times in joining the requirements under Section 6(2) which
have to be met before a court
can exercise its discretion to exempt a
non-citizen from complying with the provisions of Section 4(1)(b) and
(c), clearly indicates
that those requirements are cumulative – with
one being dissatisfied, the others cannot enable the petitioner to
reach that threshold
enabling the court to start exercising its

discretion on
whether or not to grant an exemption.

34. In the absence
of an exemption, a non-citizen petitioner is therefore required to
hold a degree of LL.B. from one of specified
universities or to hold
a Bachelor’s degree in law from one of the universities
specified in the Second Schedule and such
other prescribed university
together with such qualifications, if any, as may be prescribed. In
addition, the petitioner must have
passed some practical examination
as may be prescribed. It is common cause that the Applicant does not
possess any of the qualifications
set out in Section 4(1)(b) and (c)
of the Act. She has also not passed such practical examinations as
may be prescribed.

35. In the absence
of all those qualifications and in the absence of her meeting the
requirements to seek an exemption, there is
no legal basis on which
the decision of the court a quo refusing the petition could be
impugned. These are straightforward issues
of the interpretation of
the relevant sections and had both parties done some research on the
matter, the following local cases
would have assisted them to a great
extent in appreciating the relevant statutory provisions of the Act
and the Respondent meaningfully
carrying out its role as amicus
curiae. See, COLE v. THE LAW SOCIETY OF BOTSWANA 2009 (2) BLR 25
(HC); DOW v. THE LAW SOCIETY OF BOTSWANA 2008 (3) BLR 56 (HC).

36. In the absence
of any prospects of success on the merits, the application is
refused.

37. On the issue of
costs, it is quite evident that the Respondent’s conduct in
this matter was not that of a friend of the
Court and it did not
render any assistance to the Court in the determination of this
application. There was a clear tilt towards
not affording this Court
an informed assistance in determining the application. The parties
appeared keen to allow an unmeritorious
matter to proceed to full
appeal hearing when there wasn’t any good explanation for the

Applicant’s
non-compliance with the previous Court orders and also when the
appeal was clearly unmeritorious. For that reason
each party shall
pay its own costs.

38. The appropriate
order made is that: (1) the application for condonation is refused.
(2) Each party shall pay its own costs.

Delivered in open
court at Gaborone this 26th day of February 2013.

I.B.K. LESETEDI

Judge of Appeal

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