LEGAL PRACTITIONERS ACT
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title and commencement
2. Interpretation
PART II
Admission and Enrolment of Legal Practitioners
3. Qualifications for practising as legal practitioner
4. Qualifications for admission as legal practitioner
5. Admission of foreign advocate
6. Qualifications for practising as notary or conveyancer
7. Qualifications for admission as notary or conveyancer
8. Application for admission and enrolment
9. Admission and enrolment
10. Legal practitioner employed by Law Clinic
11. Oath to be taken before enrolment
PART III
The Roll
12. Keeping the roll
13. Entry of name and restoration of name
14. Removal or restoration of name
15. Rights of advocate and attorney
16. Restriction on practise of advocate
PART IV
Pupillage
17. Contract of pupillage
18. Service of pupillage
19. Contents of contract of pupillage
20. Registration of contract of pupillage
21. Termination of contract of pupillage
22. Provisional practising certificate
23. Certificate of pupillage
24. Exemption from contract of pupillage
25. Remuneration of pupil
PART V
Practising Certificate
26. Application for practising certificate
27. Issue of practising certificate
28. Fees payable on issue of practising certificate
29. Date and expiry of practising certificate
PART VI
Fidelity Guarantee Fund
30. Continuation of Fund
31. Fund to vest in Board of Trustees
32. Appointment of Board of Trustees
33. Application for fidelity fund certificate
34. Issue of fidelity fund certificate
35. Contribution to Fund
36. Investment of Fund moneys
37. Accounts to be kept
38. Professional indemnity
39. Moneys to credit of Fund
40. Application of moneys in Fund
41. Payment of compensation for loss due to dishonesty or theft
PART VII
Trust Account and Protocol Register
42. Trust account
43. Keeping of protocol register and examination of protocols
PART VIII
Disciplinary Committee
44. Appointment of Disciplinary Committee
45. Secretary of Disciplinary Committee
PART IX
Misconduct
46. Complaint against legal practitioner
47. Investigation of complaint by Disciplinary Committee
48. Suspension or removal of name from roll
49. Professional misconduct
PART X
The Law Society of Botswana
50. Continuation of Law Society of Botswana
51. Objectives of Society
52. Powers and functions of Society
53. Membership of Society
54. Annual subscription
55. Cessation of membership
56. Continuation of Council of Society
57. Powers of Council
58. Appointment of committees
59. Officers of Society
PART XI
Meetings of Council
60. General meeting
61. Special general meeting
62. Quorum and procedure at meetings
63. Minutes of meetings
PART XII
Financial Provisions
64. Funds of Society
65. Financial year
66. Accounts and audit
67. Pension and other funds
68. Annual report
PART XIII
Miscellaneous Provisions
69. Common seal
70. Contingency fee agreement
71. Offences
72. Power of Council to make rules
73. Regulations
74. Repeal of Cap. 61:01
75. Transitional and savings provisions
Act 39, 2022.
An Act to provide for the admission, enrolment and practice of legal practitioners in Botswana and matters ancillary thereto.
[Date of Commencement: ON NOTICE]
PART I
Preliminary (ss 1-2)
1. Short title and commencement
This Act may be cited as the Legal Practitioners Act, and shall come into operation on such date as the Minister may, by Order published in the Gazette, appoint.
In this Act, unless the context otherwise requires—
"advocate" means any legal practitioner duly admitted to practise as an advocate in Botswana;
"attorney" means a legal practitioner duly admitted and enrolled as an attorney-at-law in Botswana;
"certificate of pupillage" means a certificate of pupillage issued under section 23;
"conveyancer" means a legal practitioner duly admitted to practise as a conveyancer in Botswana;
"Council" means the Council of the Society continued under section 56;
"court" means the Chief Justice or any judge of the Court of Appeal, High Court or Industrial Court;
"courts of Botswana" means the Court of Appeal, the High Court, the Industrial Court, the magistrates’ courts and all tribunals at which legal practitioners have a right of audience, but subject to the provisions of any other written law and of the Constitution, but does not include any customary court or customary court of appeal established under the Customary Courts Act (Cap. 04:05);
"Disciplinary Committee" means the Disciplinary Committee under section 44;
"enrolment" means the entry of a name on the roll of legal practitioners;
"fidelity fund certificate" means a certificate issued under section 34;
"foreign advocate" has the meaning assigned to it under section 5;
"Fund" means the Fidelity Guarantee Fund continued under section 30;
"Law Clinic" means a Law Clinic under the professional control and management of a legal practitioner, certified by the Council and which provides legal services to indigent persons, but does not include a university Law Clinic;
"Legal Aid Botswana" has the same meaning assigned to it in the Legal Aid Act (Cap. 16:02);
"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 a legal practitioner duly admitted to practise as a notary public in Botswana;
"practise" means to practise as an advocate, attorney, notary or conveyancer;
"practising certificate" means a certificate issued under section 27;
"private entity" means any voluntary organisation, non-governmental organisation, political party, charitable institution, society, association, company, partnership, club, trust or any other person or organisation where public moneys are not used;
"pupil" means a person who serves pupillage under a pupil master in terms of this Act;
"pupil master" means a legal practitioner who has practised for a period of seven years and is on the register of pupil masters kept by the Society under section 17(4), and includes—
(a) the Attorney-General;
(b) the Director of Public Prosecutions;
(c) the Director of Military Prosecutions; and
(d) a Judge Advocate General;
"Registrar" means the Registrar of the High Court;
"removed from the roll" means deprived of the right to practise;
"repealed Act" means the Legal Practitioners Act (Cap. 61:01);
"Secretary" means the Secretary of the Society;
"the roll" means the register kept by the Registrar in terms of section 12; and
"the Society" means the Law Society of Botswana continued under section 50.
PART II
Admission and Enrolment of Legal Practitioners (ss 3-11)
3. Qualifications for practising as legal practitioner
A person shall not be qualified to practise as a legal practitioner unless—
(a) he or she has been admitted to practise as a legal practitioner;
(b) his or her name is on the roll; and
(c) he or she has in force, a practising certificate issued by the Registrar under section 27.
4. Qualifications for admission as legal practitioner
(1) A person shall be qualified to be admitted as a legal practitioner if he or she satisfies the court that—
(a) he or she is a fit and proper person;
(b) he or she has obtained by examination, an accredited bachelor’s degree in law or its equivalent from any accredited—
(i) university in Botswana, or
(ii) university as may be prescribed,
together with such additional qualifications, if any, as may be prescribed;
(c) he or she has passed such practical or bar examinations as may be prescribed;
(d) he or she has completed pupillage in accordance with Part IV of this Act;
(e) he or she is ordinarily resident in Botswana or intends to reside permanently in Botswana; and
(f) in the case of a non-citizen referred to in paragraph (b)(i) to (ii), there is a reciprocal provision in the laws of the country of which he or she 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 the provisions of paragraphs (b) and (c) of subsection (1), if he or she satisfies the court that—
(a) he or she is qualified to practise in any prescribed country having a sufficiently analogous system of law; or
(b) his or her qualifications render him or her suitable for admission and he or she fulfils such conditions, whether as to status or proficiency, as may be prescribed.
5. Admission of foreign advocate
(1) An advocate who is not a citizen and is not permanently or ordinarily resident in Botswana, but is qualified to practise as an advocate in a superior court of any prescribed country or a country prescribed by Parliament in accordance with the provisions of section 96(3) or section 100(3) of the Constitution (in this section referred to as a "foreign advocate") may, on application to the Chief Justice with notice of the application to the Society, be admitted to practise as a foreign advocate for the purpose of any specific cause or matter of importance and complexity in or with regard to which he or she has been instructed, for the duration of the hearing of that cause or matter, by—
(a) the Attorney-General;
(b) the Director of Public Prosecutions; or
(c) any attorney in Botswana.
(2) A foreign advocate shall, on completion of the hearing of the cause or matter, or on the hearing of the final appeal, cease to be entitled to practise in Botswana.
(3) A foreign advocate shall not be entitled to practise in Botswana until he or she has paid such fees, as may be prescribed, to the Society.
6. Qualifications for practising as notary or conveyancer
A person shall not be admitted to practise as a notary or as a conveyancer unless he or she is admitted and enrolled as an attorney.
7. Qualifications for admission as notary or conveyancer
Subject to the provisions of section 6, a person shall be admitted as a notary or conveyancer if he or she satisfies the court that—
(a) he or she is a fit and proper person;
(b) there is no order of court removing his or her name from the roll;
(c) there are no pending proceedings to remove his or her name from the roll; and
(d) he or she has passed such practical examinations as may be prescribed, including—
(i) in the case of a notary, in the practises, functions and duties of a notary public, and
(ii) in the case of a conveyancer, in the practises, functions and duties of a conveyancer.
8. Application for admission and enrolment
(1) For the purposes of sections 4 and 7, "fit and proper" means that an applicant to be a legal practitioner and notary or conveyancer shall not—
(a) have been convicted of a serious offence in terms of the Proceeds and Instruments of Crime Act (Cap. 08:03);
(b) have been convicted outside Botswana of a criminal offence, which, if committed in Botswana would have been a serious criminal offence;
(c) be an unrehabilitated insolvent;
(d) have been a subject of an investigation by a supervisory authority or investigatory authority in terms of the Financial Intelligence Act (Cap. 08:07); and
(e) have been a person holding a senior management position in a company which is disqualified from trading by a professional body or supervisory authority.
(2) A person who holds the requisite qualifications in terms of section 4 or 7, may apply to the court by petition, to be admitted and enrolled in the capacity specified in the application.
(3) Every application for admission and enrolment shall be accompanied by documentary proof of the possession, by the applicant, of the requisite qualifications prescribed in section 4 or 7, as the case may be.
(4) 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 date of hearing of the application, and such service shall be effected personally or by registered post:
Provided that the Attorney-General or the Society may accept service for a lesser period and, if they do so, then, the Attorney-General or the Society shall notify the Registrar, in writing.
(5) 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.
The court may, if it is satisfied that a person who has applied under section 8 possesses the prescribed qualifications to be admitted and enrolled as a legal practitioner, admit and, subject to section 11, enrol such person 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 or she satisfies the court that he or she has not practised as an advocate for a period of three months, immediately preceding his or her application for admission and enrolment as an attorney under this Act.
10. Legal practitioner employed by Law Clinic
Notwithstanding anything contained in any provision of this Act, a legal practitioner employed by a Law Clinic shall—
(a) apply for a practising certificate in terms of section 26;
(b) apply for a fidelity fund certificate in terms of section 33; and
(c) enter into a contract of pupillage in terms of section 17.
11. Oath to be taken before enrolment
A person shall not be enrolled as a legal practitioner, unless he or she has taken an oath before the Registrar, or affirmation of office, in the form set out under Schedule 1.
PART III
The Roll (ss 12-16)
(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 and addresses 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.
13. Entry of name and restoration of name
(1) On production—
(a) of an admission of any person as a legal practitioner under section 10, signed by the court; or
(b) of an order for the restoration to the roll of the name of a person whose name has been removed from it,
and on payment to the Registrar of the fee prescribed, the Registrar shall enter the name of that person on the roll.
(2) The Registrar shall issue a certificate of admission and enrolment, in such form as may be prescribed, to any person admitted and enrolled as an advocate, attorney, a notary, or a conveyancer, as the case may be.
14. Removal or restoration of name
(1) The Registrar may, on the application of a legal practitioner, remove the name of the legal practitioner from the roll.
(2) The Registrar may, on the application of the Society, remove the name of a legal practitioner from the roll, if he or she is no longer resident in Botswana or has not resided in Botswana after admission.
(3) The Registrar may, on the application of the Society, remove the name of a legal practitioner who fails to meet the fit and proper test under section 8(1).
(4) The Registrar may, on the application of a legal practitioner whose name has been removed from the roll at his or her own request, enter the name of the legal practitioner on the roll, upon payment of such fee as may be prescribed.
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