CHAPTER 61:01
LEGAL PRACTITIONERS

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
Preliminary

 

   1.   Short title

 

   2.   Interpretation

 

 

 

PART II
Admission and Enrolment of Legal Practitioners

 

Qualifications and Admission

 

   3.   Qualifications for practising as legal practitioner

 

   4.   Qualifications for admission of citizen

 

   5.   Qualifications for admission of Commonwealth citizen

 

   6.   Qualifications for admission of non-citizen

 

   7.   Admission of foreign advocates

 

   8.   Qualifications for practising as notaries and conveyancers

 

   9.   Qualifications for admission as notaries and conveyancers

 

   10.   Application for admission and enrolment

 

   11.   Admission and enrolment

 

   12.   Oath to be taken before enrolment

 

 

 

The Roll

 

   13.   Keeping the roll

 

   14.   Entry of name and restoration of name

 

   15.   Removal or restoration of name of practitioner

 

   16.   Rights of advocates and attorneys

 

   17.   Restriction on practice of advocates

 

 

 

PART III
Pupillage

 

   18.   Contract of pupillage

 

   19.   Service of pupillage

 

   20.   Contents of contract of pupillage

 

   21.   Registration of contract

 

   22.   Termination of contract

 

   23.   Provisional practising certificate

 

   24.   Award of certificate of pupillage

 

   25.   Exemption from contract of pupillage

 

   26.   Prohibition of issue of practising certificate

 

   27.   Application of Part III

 

   28.   Remuneration of pupil

 

 

 

PART IV
Practising Certificate

 

   29.   Application for practising certificate

 

   30.   Issue of practising certificate

 

   31.   Fees payable on issue of practising certificate

 

   32.   Date and expiry of practising certificate

 

 

 

PART V
Fidelity Guarantee Fund

 

   33.   Establishment of Fund

 

   34.   Fund to vest in Board of trustees

 

   35.   Appointment of Board of trustees

 

   36.   Application for fidelity fund certificate

 

   37.   Issue of fidelity fund certificate

 

   38.   Contribution to Fund

 

   39.   Investment of Fund

 

   40.   Accounts to be kept

 

   41.   Professional indemnity

 

   42.   Moneys to the credit of Fund

 

   43.   Application of Fund

 

   44.   Payment of compensation for loss due to dishonesty

 

 

 

PART VI
Trust Accounts and Notaries, Protocols

 

   45.   Trust accounts

 

   46.   Examination of protocol and registers of notaries

 

 

 

PART VII
Disciplinary Committee

 

   47.   Appointment of Disciplinary Committee

 

   48.   Secretary of Disciplinary Committee

 

 

 

PART VIII
Misconduct

 

   49.   Complaint against legal practitioner

 

   50.   Investigation of complaint by Disciplinary Committee

 

   51.   Suspension or removal of name from roll

 

   52.   Definition of misconduct

 

 

 

PART IX
Offences

 

   53.   Offences

 

 

 

PART X
Power to make Regulations

 

   54.   Regulations

 

 

 

PART XI
The Law Society of Botswana

 

Establishment of Society

 

   55.   Establishment of Society

 

 

 

Membership

 

   56.   Membership

 

   57.   Annual subscription

 

   58.   Cessation of membership

 

   59.   Functions of Society

 

 

 

Council

 

   60.   Council of Society

 

   61.   Powers of Council

 

   62.   Appointment of committees and delegation of powers

 

   63.   Procedure

 

 

 

Other Officers

 

   64.   Officers of Society

 

 

 

General Meetings

 

   65.   Ordinary general meeting

 

   66.   Special general meeting

 

   67.   Convening and procedure of meetings

 

 

 

Common Seal

 

   68.   Common Seal

 

 

 

Minutes, Accounts and Reports

 

   69.   Minutes

 

   70.   Accounts to be kept

 

   71.   Annual report

 

 

 

Regulations

 

   72.   Regulations

 

 

 

PART XII
Miscellaneous Provisions

 

   73.   Regulations to be made by Minister

 

   74.   Savings

 

   75.   Transitional provision

 

   76.   Pending proceedings

 

   77.   Continuance of regulations

 

 

 

      First Schedule - Exempted Persons

 

      Second Schedule - Specified Universities

 

      Third Schedule - Formalities

 

      Fourth Schedule - Fees Payable on Admission and Enrolment

 

      Fifth Schedule - Annual Fees for Practising Certificates

 

 

Act 34, 1967,
Act 10, 1969,
Act 45, 1969,
Act 44, 1970,
Act 17, 1972,
S.I. 36, 1975,
S.I. 5, 1976,
Act 23, 1977,
S.I. 73, 1978,
Act 17, 1982,
Act 30, 1982,
Act 27, 1983,
Act 13, 1996,
Act 14, 2005,
S.I. 3, 2014.

An Act to re-enact with amendments the law relating to the admission, enrolment and practice of legal practitioners in Botswana and matters ancillary thereto.

[Date of commencement: 1st January 1997,
except s 30(1)(d), (e) and (f): 1st February, 1997
]

PART I
Preliminary (ss 1-2)

 

1.   Short title

   This Act may be cited as the Legal Practitioners Act, 1996.

 

2.   Interpretation

   In this Act unless the context otherwise requires-

   "advocate" means any legal practitioner duly admitted to practise as an advocate in Botswana;

   "the annual contribution" has the meaning assigned to it under section 38;

   "attorney" means any legal practitioner duly admitted to practise as an attorney-at-law in Botswana;

   "certificate of pupillage" has the meaning assigned to it under section 24;

   "conveyancer" means any legal practitioner duly admitted to practise as a conveyancer in Botswana;

   "the Council" means the Council of the Society established under section 60;

   "court" means the Chief Justice or any judge of the High Court;

   "courts of Botswana" means the Court of Appeal, the High Court and magistrates' courts and all tribunals to which legal practitioners have a right of audience, but subject to the provisions of any other written law and the Constitution, does not include any customary court or any customary court of appeal established under the Customary Courts Act;

   "the Disciplinary Committee" means the Disciplinary Committee established under section 47;

   "enrolment" means the entry of a name in the roll of legal practitioners;

   "foreign advocate" has the meaning assigned to it under section 7;

   "the Fund" has the meaning assigned to it under section 33;

   "legal practitioner" means any person entitled to practise under this Act as an advocate, attorney, notary or conveyancer;

   "Master" means the Master of the High Court;

   "notary" means any legal practitioner duly admitted as a notary public in Botswana;

   "practising certificate" means a certificate issued under section 30;

   "pupil master" has the meaning assigned to it under section18(2);

   "the Registrar" means the Registrar of the High Court;

   "the roll" means the list of legal practitioners kept by the Registrar under section 13;

   "the Society" means the Law Society of Botswana established under section 55.

PART II
Admission and Enrolment of Legal Practitioners (ss 3-17)

Qualifications and Admission (ss 3-12)

 

3.   Qualifications for practising as legal practitioner

   (1) No person shall be qualified to practise as a legal practitioner unless-

 

   (a)   he has been admitted as a legal practitioner;

 

   (b)   his name is on the roll; and

 

   (c)   subject to subsection (2), he has in force a practising certificate issued by the Registrar under section 30.

   (2) The persons specified in the First Schedule shall be exempted from applying for a practising certificate:

   Provided that the exemption shall not apply to any person specified in the Schedule who engages in private practice on his own account.

 

4.   Qualifications for admission of citizen

   (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 qualifications, if any, as may be prescribed; and

 

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

   (2) A person referred to in subsection (1) may be exempted from the provisions of paragraphs (b) and (c) of subsection (1) if he satisfies the court that he is qualified to practise in any 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.

 

5.   Qualifications for admission of Commonwealth citizen

   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;

 

   (b)   he has been admitted, has done his pupillage and is entitled to practise as a barrister in England, Northern Ireland, the Republic of Ireland or as an advocate in the Court of Session in Scotland; or

 

   (c)   he has been admitted, has done his pupillage and is entitled to practise as an advocate in any Division of the Supreme Court of the Republic of South Africa or in the High Court of Zimbabwe; or

 

   (d)   he has been admitted, has done his pupillage and is entitled to practise as an attorney or solicitor of any of the courts of Record in London, Belfast or Dublin, or being a Writer to the Signet or a solicitor or law agent admitted to practise in the Court of Session of Scotland; or

 

   (e)   he has been admitted, has done his pupillage and is entitled to practise as an attorney or solicitor in any Division of the Supreme Court of the Republic of South Africa or in the High Court of Zimbabwe; and

 

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

 

   (g)   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.

 

6.   Qualifications for admission of non-citizen

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

 

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

 

   (d)   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.

 

7.   Admission of foreign advocates

   (1) An advocate who is not a citizen of Botswana and is not permanently or ordinarily resident in Botswana but is qualified to practise as an advocate in a superior court in a Commonwealth country or a country prescribed by Parliament in accordance with the provisions of section 96(3) or 100(3) of the Constitution (in this section referred to as "a foreign advocate") may, on an application to the Chief Justice with notice of the application to the Society, be admitted to practise as an advocate for the purpose of any specific cause or matter of importance and complexity in or regard to which he has been instructed either by the Attorney-General or an attorney in Botswana for the duration of the hearing of that cause or matter.

   (2) The foreign advocate shall, on completion of the hearing of the cause or matter, or on the hearing of the final appeal therefrom, cease to be entitled to practise in Botswana.

   (3) No foreign advocate shall be entitled to practise in Botswana until he has paid such fees as may be prescribed under section 73, to the Registrar.

   (4) The Registrar shall pay half of the fee paid under subsection (3) to the Society.

 

8.   Qualifications for practising as notaries and conveyancers

   No person shall be admitted to practise as a notary or as a conveyancer unless he is admitted and enrolled as an attorney.

 

9.   Qualifications for admission as notaries and conveyancers

   Subject to section 8, a person shall be admitted as a notary or as a conveyancer, as the case may be, if he satisfies the court that-

 

   (a)   he is a fit and proper person;

 

   (b)   there is no order of court removing his name from the roll;

 

   (c)   there are no pending proceedings to remove his name from the roll; and

 

   (d)   he has passed such examinations as may be prescribed-

 

      (i)   in the case of a notary, in the practices, functions and duties of a notary public;

 

      (ii)   in the case of a conveyancer, in the practices, functions and duties of a conveyancer.

 

10.   Application for admission and enrolment

   (1) Any person who holds the requisite qualifications in terms of section 4, 5, 6 or 9 may apply to the court by petition in writing to be admitted and enrolled as a legal practitioner in the capacity mentioned in the application.

   (2) Every application shall be accompanied by a documentary proof of the possession by the applicant of the qualifications prescribed in section 4, 5, 6 or 9, as the case may be.

   (3) A copy of every application, together with copies of supporting affidavits and certificates shall be served upon the Attorney-General and the Society not less than 28 days before the hearing of the application, and such service may be effected personally or by registered post:

   Provided that the Attorney-General or the Society may, after consulting each other, accept service for a lesser period and, if they agree to do so, then the Attorney-General shall notify the Registrar in writing thereof.

   (4) The Attorney-General, the Society or any legal practitioner may request the leave of the court to appear as amicus curiae to oppose the granting of such application.

 

11.   Admission and enrolment

   The court may, if it is satisfied that a person who has applied under section 10 possesses the prescribed qualifications to be admitted and enrolled as a legal practitioner, admit and, subject to section 12, enrol him as an advocate, attorney, notary or conveyancer, as the case may be:

   Provided that a person who has previously acted as an advocate shall not be admitted and enrolled as an attorney unless he satisfies the court that he has not practised as an advocate for a period of three months immediately preceding his application for admission and enrolment as an attorney under this Act.

 

12.   Oath to taken before enrolment

   No person shall be enrolled as a legal practitioner unless he has taken before the Registrar the oath or affirmation of office as set out in Form A in the Third Schedule.

The Roll (ss 13-17)

 

13.   Keeping the roll

   (1) The Registrar shall continue to keep a list of all legal practitioners in Botswana, called "the roll".

   (2) The roll shall be in the form of separate alphabetical lists recording the names of advocates, attorneys, notaries and conveyancers respectively, entitled to practise by reason of having been admitted to practise under this Act with the dates of such admission and the names and addresses.

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