Secretary, Law Society v Sibanda (Civil Appeal No 8 of 205) [2005] BWCA 21; [2005] 2 B.L.R. 291 (CA) (27 July 2005)

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Secretary, Law Society v Sibanda (Civil Appeal No 8 of 205) [2005] BWCA 21; [2005] 2 B.L.R. 291 (CA) (27 July 2005)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil App. No.08/2005 High Court Case Misca No.607/03 & 430/04
In the matter between:
THE SECRETARY OF THE LAW SOCIETY         l^8t Appellant
THE SECRETARY OF THE BOARD OF
TRUSTEES OF THE FIDELITY GUARANTEE
FUND     2^nd Appellant
THE LAW SOCIETY OF BOTSWANA      3^rd Appellant
AND
AUSTINE SIBANDA Respondent
Mr. B.D. Leburu for the Appellants Mr. R. Lyons for the Respondent
JUDGMENT
CORAM: P.H. TEBBUTTJ.P.
N. W. ZIETSMAN J.A. LORD COULSFIELD J.A.
LORD COULSFIELD J.A.

This is an appeal by the Secretary of the Law Society, the Secretary of the Board of Trustees and the Law Society of Botswana against an order granted by the Chief Justice on 18 February 2005 by which he admitted Austine Sibanda as an Attorney, Notary Public and Conveyancer of the courts of the Republic of Botswana. In the course of the lengthy, and in some respects unhappy, proceedings leading up to this appeal, each of the parties has appeared sometimes as applicant and sometimes as

respondent. For the sake of clarity, they will be referred to as the Law Society and Mr. Sibanda respectively in this judgment.

Mr. Sibanda is a citizen of Zimbabwe. He completed an LLB degree with Honours at the University of Zimbabwe on 24 January 1992. He was registered as a Legal Practitioner in Zimbabwe on 9 December 1992 and thereafter practised in that jurisdiction. On 20 November 2003, he presented a petition to the High Court, seeking to be admitted as an Attorney in Botswana. On 31 March 2004, the Law Society lodged a notice of opposition to the petition. The Attorney General lodged a notice of waiver on 20 March 2004. Notwithstanding the lodging of the notice of opposition, on 25 July 2004, the Court granted an order to admit Mr. Sibanda as an attorney. On 8 September 2004, however, the Law Society applied to the Court to set aside the order. It is not necessary to go into the grounds of that application: it had to do with the adequacy of the notice to the Law Society that Mr. Sibanda's application was to be dealt with on 28 July 2004. On 11 October 2004, the Court rescinded the order of 28 July 2004.

Mr. Sibanda's application for admission was heard by the Chief Justice on 9 February 2005 and an order admitting him as an attorney was granted on 18 February 2005. That is the order against which the Law Society subsequently appealed, by notice dated 11 March 2005.

There are two further complications. Firstly, Mr. Sibanda took the oaths of office as attorney, notary public and conveyancer before the Registrar on 4 March 2005. On 11 March 2005, his attorneys tendered the appropriate sums as payment of membership fees and education levy to the Law Society and the amount due for the issue of a Fidelity Fund certificate. Mr. Sibanda had previously applied to the court for a direction that a Fidelity Fund certificate should be issued to him; that application was made on 31 August 2004, and was presumably superceded by the rescission of the order of 28 July 2004. According to Mr. Sibanda, the payment tendered was not acknowledged and on 6 April 2005 he applied to the court for an order directing the Secretary to accept the payments and issue a Fidelity Fund Certificate. On the same date, the Law Society applied to the Court for a stay of execution of the order of 18 February 2005. Mr. Sibanda lodged a notice of opposition to the application for a stay, and it does not appear that any further order has been made. In any event, although these applications have added significantly to the length of the record, they do not appear to raise any separate issue of substance.

The second complication is that by the time the Chief Justice came to issue written reasons in regard to the order which he had made on 18 February 2005, which he did on 29 April 2005, he had reconsidered the

arguments which had been presented to him and had come to the view that the order should not have been granted.

Before turning to the substantive issues, there is a preliminary question to be considered. In his opposition to the Law Society's application for rescission of the order of 28 July 2004, as set out in heads of arguments lodged in September 2004 (Record p. 303), Mr. Sibanda submitted, firstly, that in terms of Section 10(4) of the Legal Practitioners Act of 1996 the Law Society could only intervene by leave of the court, that no such leave had been granted and therefore the Law Society 's papers and arguments were not properly before the Court and should be disregarded: and secondly, that in terms of Section 10(4) the Law Society could only appear as an amicus curiae and as such could only seek to assist or advise the court, and could not act as a party in opposing an application. These arguments were before the judge who granted the order of rescission on 11 October 2004, but we do not have any note of his views upon them. The arguments were repeated before the Chief Justice, who rejected them. Broadly, the Chief Justice took the view that Section 10(4) did not require a separate application for leave to intervene and that although Mr. Sibanda was right to raise the point, the Law Society's failure to seek leave should not be fatal to its intervention in this particular case; and that in terms of Section 10(4) the Law Society could, with leave, appear "to oppose the granting of an application and

that it would be wrong to try to restrict the grounds on which or the manner in which such opposition could be pursued. In his grounds of appeal, Mr. Sibanda again referred to these arguments but he did not press them and it is sufficient to say that we are quite satisfied that the Chief Justice dealt with them correctly.

The Law Society originally put forward four grounds of opposition to Mr.
Sibanda's application. The first of these was that Mr. Sibanda was not a
fit and proper person to be admitted under the Legal Practitioners Act:
but this ground was given up, and need not be considered. The
remaining grounds were:-
i) that Mr. Sibanda is not a Commonwealth citizen nor
otherwise qualified to be admitted in terms of Section 6 of the Act;

ii) that the country of Zimbabwe does not provide reciprocal arrangements for citizens of Botswana to be admitted to practice in that country; this ground may be taken as covering also an argument that the legal system of Zimbabwe is not, or has not been proven to be, sufficiently analogous to that of Botswana;

iii) that Mr. Sibanda is not (or has not shown that he is) a person ordinarily resident in Botswana or who intends permanently to reside in Botswana.

The legislation governing the admission of legal practitioners in Botswana is found in sections 3 to 6 of the Legal Practitioners' Act No. 13 of 1996. Section 3 deals with the admission of persons who are citizens of Botswana. Section 5 provides, so far as material:-

5(1) A person who is a citizen of a Commonwealth country (including 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

he has been admitted, has done his pupilage and is entitled to practise as attorney or solicitor in any Division of the Supreme Court of the Republic of South Africa or in the High Court of Zimbabwe: and

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

there is a reciprocal provision in the law of the Commonwealth 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."

Section 6 provides:-

"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;

he has complied with the educational requirements specified in paragraphs (b) and (c) of section 4(1);

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

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 paragraph (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 fullfils such are conditions, whether, as to status or proficiency as may be prescribed "

The qualifications mentioned in section 4(l)(b) and (c ) are a degree in law from any of a number of specified universities and having passed prescribed practical examinations. The specified universities do not include the University of Zimbabwe.

The effect of the legislation, therefore, is that in order to be entitled to admission Mr. Sibanda must satisfy either the requirements of section 5 or those of section 6. In either case, he must first satisfy the court that he is a fit and proper person: at an earlier stage, there was a dispute as to whether he met that requirement, but that is not now in issue. In order to satisfy section 5 , he must show inter alia that he is a citizen of a Commonwealth country. In order to satisfy section 6 he must show that he meets the educational requirements set out in section 4(1) (b) and (c ), or that he should be exempted from them. Having passed that hurdle, on either the section 5 route or the section 6 route, it remains for him to satisfy the court that he is ordinarily resident in Botswana or intends to

reside permanently in Botswana; and that the country of which he is a citizen makes reciprocal provision for admission to its legal profession for citizens of Botswana.

In his written reasons, the Chief Justice noted that at the time when Mr.
Sibanda first presented his petition to the court, Zimbabwe was
undoubtedly a Commonwealth country but that by the time the case
came before him, Zimbabwe had withdrawn from the Commonwealth, as
both parties agreed. Mr. Sibanda relied on section 49 of the
Interpretation Act (Cap. 1:04), which lists the members of the
Commonwealth. It provides:-

"Commonwealth country" means any of the members of the Commonwealth other than Botswana. Comprising the United Kingdom and Colonies... Zimbabwe .... and any other country for the time being recognised as a member."

The Chief Justice pointed out that the list of members is not closed and
observed that it was difficult to conceive that the section would provide
for the recognition of new factual realities without also allowing for the
removal from the list of old members who were recognised as having
withdrawn. He referred to the opening words of the definition, which he
read as requiring that a country should always be a member in reality
and in fact. He concluded:

"The requirement that a listed country must always remain a member as a fact means that when that country effectively withdraws its membership of the Commonwealth it can no

longer be recognised as such even if it remains on the list under section 49. If membership of the Commonwealth as a reality was not a requirement, those opening words would not have been necessary, because it would have been sufficient to state that Commonwealth countries comprise of the listed countries. Their inclusion shows that actual membership is essential for a country to remain recognised as a Commonwealth country."

The Chief Justice therefore held that Mr. Sibanda could not qualify by
the section 5 route. With regard to the section 6 route, he held that
although Mr. Sibanda holds a degree in law, he could not satisfy the
requirements of section 4(1) (b) and (c) because the University of
Zimbabwe is not one of the universities prescribed for the purposes of
the subsection. Similarly, he held that Mr. Sibanda could not satisfy the
conditions laid down in Section 6(2) for exemption from the requirements
of section 4(1) because Zimbabwe is not one of the countries prescribed
for the purposes of section 6(2). He therefore came to the conclusion
that the order of 18 February 2005 should not have been granted. It
should be added, however, that the Chief Justice observed, in the course
of dealing with section 4(1).

"It seems to me that the Petitioner hereof is qualified to practise law in a country that has an analogous system of law to that of Botswana. That fact is testified to by the high status that section 5(1) (c) and (e) grants to advocates and attorneys admitted to practice in Zimbabwe."

Later, he observed:-

"I should mention that at first sight it is perplexing why the University of Zimbabwe and that country itself is not prescribed; but the explanation lies in the fact that as a

listed Commonwealth country, its citizens are easily
admissible under section 5 where practice in the country of
Zimbabwe and South Africa virtually guarantees admission
of all legal practioners from Zimbabwe. In such

circumstances, there was no need to include Zimbabwe in the second schedule, nor prescribe it or its University. Now that the situation has changed with Zimbabwe withdrawing from the Commonwealth, the situation has to be rethought."

The Chief Justice did not deal with any other points raised by the
parties.

Zimbabwe announced that it was withdrawing from the Commonwealth in December 2003, that is, after Mr. Sibanda had presented his petition for admission. There is, therefore, a preliminary issue as to whether Mr. Sibanda's entitlement to admission as a practitioner in Botswana should be judged as at the date of presentation of his petition or at some later date when the court came to consider it. Mr. Sibanda argued that the earlier date was the correct one to take, and in his Heads of Argument cited Section 13 of the Interpretation Act, which provides that the repeal of an enactment shall not affect any right or privilege acquired under the repealed enactment nor any legal proceeding in respect of such a right or privilege, and that any such proceeding may be continued as if the enactment had not been repealed. He also cited a number of decided cases dealing with the effects of repealing or amending legislation, and -in particular Bell v Voorsitter van Die Rasklassiflkasieraad en Andere 1968(2) SA 678. Mr. Leburu for the Law Society argued that section 13 and the cases dealing with it were concerned with the

consequences of changes in the law and that they could not be relied on where, as here, there had been a change in the factual situation. He gave the example of the process of registration of tribal land which could be defeated if the land were compulsorily acquired before the process was complete. He also instanced changes in trade agreements which could affect trading rights.

The rule set out in Section 13 of the interpretation Act is a rule specifically expressed to deal with changes in the law. It is, however, an application of the general principle that vested rights should not be disturbed. There may well be cases in which factual changes do make it inevitable that vested rights will be disturbed. In the present case, however, Mr. Sibanda presented his petition at a time when he was qualified and thus entitled to be registered as a legal practitioner: I do not read the statute as giving the Law Society or the Court any discretion to refuse an application by a qualified person who satisfies them that he is qualified. In my view, therefore, Mr. Sibanda was entitled to registration as at November 2003 and his entitlement was not affected when Zimbabwe left the Commonwealth. That approach has also the advantage of certainty. This case shows that the proceedings in an application may take a long time and it would be unfortunate if an applicant's rights could be held in suspense during a period of delay for which he was not responsible.

That would be sufficient to decide the case in favour of Mr. Sibanda on this point. Since, however, there may well be other cases of applicants qualified in Zimbabwe, and we have heard full arguments on the issue, it seems desirable to deal with the point on which the Chief Justice decided against Mr. Sibanda. The arguments of the parties were the same as those put before the Chief Justice. Mr. Leburu pointed out that it was a matter of agreement that Zimbabwe had withdrawn and therefore a matter of fact that it was not a Commonwealth country. He made a comparison with international trade agreements under which privileges would depend on reciprocity and cited the maxim cessante ratione legis cessat lex ipsa. He also pointed out that there were other spheres of law, such as authentication of documents and recognition of judgments, to which membership of the Commonwealth could be significant. The words "and any other country for the time being recognised as a member" pointed to a factual test: if a country could be added one could also be removed from the list. Mr. Sibanda submitted that the question was one of the legal definition of the Commonwealth, which stood until some change was made to the legislation.

In my opinion, Mr. Sibanda's argument is correct. There are, I think, two lines of argument which lead to that conclusion. The first concentrates on the words of Section 49. The relevant part of section 49

is a definition provision. It says that Commonwealth country "means
any of the members of the Commonwealth comprising Zimbabwe".

I do not think that the addition of the words 'and any other country for the time being recognised' does imply that the court can hold that some factual change entitles it to remove one of the listed countries from the Commonwealth. If that had been the intention, the definition would have been differently set out, and would have said something to the effect that "Commonwealth country" means any of the countries from time to time recognised as members ...." Looking at the issue, more broadly, as Mr. Leburu accepted, "recognition" would be a matter for the government and perhaps the Commonwealth Secretariat: and in that connection it may be noted that the Attorney General's notice of waiver in this case was lodged after Zimbabwe withdrew from the Commonwealth. More generally, as this case shows, if a country comes to be treated as enjoying Commonwealth status, a variety of consequential problems may arise, which may require to be dealt with by legislation. In this case, the problems would arise because there is nothing to show how applicants from Zimbabwe should be treated if they cease to be treated as coming from a Commonwealth country. It is, I think, easy to see that similar problems could arise in relation to Mr. Leburu's examples of trade agreements, and agreements for recognition of documents and judgments. It is much more satisfactory and simple to hold that one of the listed countries should continue to be treated as a Commonwealth

country until the law is changed so as to determine not only that it should cease to be so treated but how it should be treated for the future.

The remaining issues can be dealt with quite briefly. As the Chief Justice said, the question of reciprocity was dealt with in his decision in Vazaidzo Mutemachimwe, v Law Society of Botswana Misca 196/2000, where he held that sufficient reciprocity has been established, following legislation passed in Zimbabwe in 2000. There seemed to be some doubt in Mr. Leburu's mind as to whether the Law Society had tried to keep the point open, but judgment of the court on appeal in the same case (no. 41 of 2001) shows that it was given up. In any event, Mr. Leburu did not identify any specific way in which there was a lack of reciprocity and, as I understood him, virtually conceded that there was no substance in the point. As regards the question whether the legal system of Zimbabwe is "sufficiently analogous" in that of Botswana, Mr. Leburu's submission was that evidence would be required to be produced on every occasion, which seems an extraordinary submission given the special treatment of Zimbabwe in Section 5 (1) (e) of the Act, but since Mr. Sibanda is entitled to qualify by the section 5 route, the point does not really arise.

The remaining issue is that of Mr. Sibanda's intention to reside permanently in Botswana. The question of how the necessary intention

can be established was fully considered in the judgment of the court in the appeal in the Varaidzo Matemachimwe case. In that case, the appellant had been offered a position with a firm of attorneys in Gaborone for an unlimited period. She had stated her intention to leave Zimbabwe permanently and move to Botswana: and she had sold her assets in Zimbabwe and applied for a work permit and a resident permit in Botswana. The court held that there was nothing to cast doubt on her unequivocal statement of intention and, despite the lack of some information about her family circumstances, she had established the necessary intention.

In my opinion, the circumstances of Mr. Sibanda are at least as favourable to proof of the necessary intention as those of the appellant in that case. Mr. Sibanda has not renewed the practising certificate which he held in Zimbabwe and has been without such a certificate for two and a half years. He has an offer of employment for an indefinite period from a firm of attorneys. He has given information about his wife and children and has made arrangements for them to be in a position to join him in Botswana. Mr. Leburu's principal argument was that the question of employment should be disregarded and that an applicant must show a determination to reside in Botswana whether or not he is in a position to earn a living there. That seems to me to be far too high a requirement. The proper approach as already laid down by this court, is to consider

the whole circumstances together. On that approach, it seems quite clear that the necessary intention has been established.
In all the circumstances, therefore, this appeal should be refused and the order of 18 February 2005 should stand.

DELIVERED IN OPEN COURT AT LOBATSE THIS ibX....TDAY OF JULY 2005.
COULSFIELD IE OF APPEAL
, agree E^fefe^E.
P. H. TEBBUTT JUDGE PRESIDENT
I agree .TT:
N. W. ZIETSMAN JUDGE OF APPEAL

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