Lawyer challenges King’s Counsel title conferment

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Mohalenyane Phakela

THE Law Society of Lesotho is entangled in a legal battle with one of its members over the conferment of the prestigious King’s Counsel (KC) title to “outstanding” lawyers.

Advocate Fusi Sehapi has petitioned the Constitutional Court to review and declare unconstitutional, the procedure for the conferment of the KC title to lawyers.

Adv Sehapi argues in his 29 April 2022 application that it is discriminatory for lawyers like him, who have not served in the judiciary for 15 years, to be denied the opportunity to be conferred the KC title.

He also argues that the chief justice should not make the decision as to who should be conferred the KC status. This should be at the discretion of the Law Society of Lesotho, he argues.

The Law Society of Lesotho and Attorney General Rapelang Motsieloa are the first and second respondents, respectively in the application.

The Law Society has opposed Adv Sehapi’s application. It argues that there is no clause in the constitution which supports his claims of being discriminated against because all legal practitioners are treated the same in as far as the 15 year waiting period is concerned.

His case therefore, lacks merit and should be dismissed, the Society argues.

In his application, Adv Sehapi argues that he is a qualified lawyer who has appeared in different courts and therefore has the competency and deserves to be honoured with the KC status.

He further contends that even if he has not practised for 15 years, his ineligibility for KC status is discriminatory.

“I have appeared in all the courts of Lesotho namely: Court of Appeal, High Court and Constitutional Division,” Adv Sehapi contends.

“I have also appeared in the Land Court, Children’s Court, Labour Court, Local Court, Central Court, Judicial Commissioners Court, Court Martial and other tribunals. I am desirous of applying for the honour and dignity of KC to the Law Society Council. But the Legal Practitioners Act seemingly does not permit such a postulation contrary to England and Commonwealth jurisdictions practice on conferral of the status of Queen’s Counsel, King’s Counsel or Senior Counsel.

“I humbly pray the Court to declare that the 15 years waiting period is discriminatory and violates my right to equal opportunity in the legal profession. I humbly pray for the Court to declare that the correct procedure for the aspiring KC is not to wait for the Chief Justice to recommend one for silk after expiration of 15 years or more…

“This Court has jurisdiction to adjudicate this matter as it involves a violation and/or threat of violation of a justiciable right contained in Chapter II of the Lesotho Constitution, which is a right to honour and dignity, right to equality and freedom from discrimination on the basis of my tender age biologically and/or in the practice of law…For the avoidance of doubt, I am not praying this court to confer the status of KC on me, but to quash or adapt and modify the unconstitutional law denying my right/s to apply for being KC before to the Law Society Council before the expiration of 15 years. The impugned law imposes the onerous duty on the Chief Justice to recommend advocates for the status of KC contrary to the Constitution, practice in England and the former British colonies.

“The role of Chief Justice is judicial administration and to make rules governing, not the lawyers and legal practice, but the practice of courts…The role of recommending to the King… is left to the owners of the legal profession – the Law Society Council. The process is a private mechanism and must be left to its owners being the Law Society Council,” Adv Sehapi argues.

However, Adv Maqakachane counter-argues in his answering affidavit that Adv Sehapi never approached the Law Society or Justice Sakoane with a request to be recommended for KC status.

He also argues that Adv Sehapi has not joined Justice Sakoane or King Letsie III to the lawsuit even though they are the repositories of powers to confer the KC status.

He further argues that the applicant’s cause of action based on the discrimination and equality clause in section 18 of the constitution is unfounded and baseless, as there is no issue of differential treatment to start with.

All members of the legal profession were subjected to the same standard, conditions and processes regarding the attainment of the status of the KC, Adv Maqakachane argues.

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