…as Law Society gives human rights NGOs ultimatum to stop representing them in courts
Moorosi Tsiane
The Law Society of Lesotho (LSL) has banned non-profit organisations from representing poor litigants in mostly human rights cases.
The move appears to be a ruse by the LSL to create employment for its numerous members who are not getting work, perhaps because of the proliferation of legal practitioners in Lesotho.
The world over, there are specific non-profit organisations that specialise in representing the poor, who lack resources to hire lawyers. For instance, in South Africa, the non-governmental organisation, Lawyers for Human Rights, has fought for poor ordinary people, including asylum seekers, all the way to that country’s Constitutional Court. It has helped people who would not otherwise have been able to vindicate their rights in court because litigation is expensive.
Donor funded organisations thus play a critical role in facilitating access to justice. In Lesotho, such NGO’s are playing a critical role in representing poor people, especially vulnerable women facing increasing gender based violence. That’s what makes the LSL’s self- serving directive all the more perplexing.
The LSL has a dismal record in regulating the legal profession and reprimanding its inept and incompetent members, who reap the public with shoddy legal advice. It was once excoriated by Chief Justice Sakoane Sakoane over its failure to partake in public interest litigation to promote human rights and the rule of law in Lesotho.
In fact in Lesotho, raising a complaint against errant lawyers is as good as a waste of time. The only remedy is for litigants to seek justice in the courts.
But instead of focusing on its core mandate of ensuring better regulation of the legal profession, ensuring its members operate ethically and are fit for purpose as well as safeguarding the public interest, the LSL is doing exactly the opposite.
It now wants to deprive the poor access to justice by banning donor funded NGOs that have been helping them. It this week issued a 48-hour ultimatum to lawyers practicing under NGOs to desist from representing litigants.
The LSL claimed the NGO lawyers were acting in contravention of section 7 of the Law Society Act 1983, which it claimed prescribes that practicing certificates be issued to lawyers in private practice only. It did not explain why it has suddenly realised that these NGO lawyers are operating “illegally”.
It nonetheless gives the NGOs representing the poor until today to hand over their clients’ files to the LSL. The files will then be given to stranded LSL lawyers who are failing to get clients to earn a living. Some of such dubious lawyers, that the LSL is now trying to create employment for through its draconian directive, were once condemned by High Court judge, Justice Tšeliso Monapathi, for operating their “law firms” from the boots of their second-hand cars.
The LSL’s directive is manifestly unjust and NGO lawyers are better advised to ignore it. After all, the LSL cannot commandeer legal files from NGOs in the manner it is trying to do. Litigants, even the poorest of the poor, have a right to be represented by lawyers of their choice.
Lawyers, like doctors, the world over are accredited by their professional associations on the basis of their individual qualifications as set out in the law. After being issued with practicing certificates they can practice as individuals or group themselves under partnerships. They can also opt to work and go to court for NGOs or private companies. Such NGOs and private companies cannot be accredited to practice law as institutions. This is all what makes the Law Society’s latest move all the more perplexing.
In its memo to the lawyers in NGOs, the LSL states: “You are hereby informed that the Council has resolved to enforce strict compliance with the law, in particular Section 7 of the Law Society Act, No.13 of 1983 that serves to regulate issuance of practicing and non-practicing certificates.
“It prescribes that practicing certificates can only be issued to legal practitioners in offices and chambers established in terms of the Act. This excludes Non-Governmental Organizations (NGOs) such as yours. This necessitates the cancellation of issuance of practicing certificates under such organizations, the subsequent litigation of cases; and maintenance and keeping of clients’ files henceforth.”
The memo seen by the Lesotho Times dated 3 June 2024 was directed to women’s rights advocates, Federation of Women Lawyers Lesotho (FIDA).
The memo added: “Members who have been practicing under NGOs in general, and FIDA in particular, are advised to desist from representing clients under these organizations and are to hand over clients’ files to the Law Society within 48 hours of receipt of this communication accompanied by a complete inventory list. Upon receipt, clients will be advised to collect their files and accordingly instruct lawyers practicing under any of the legally recognized chambers and law firms.”
FIDA has played a crucial role in ensuring litigation for vulnerable women. The attempt to disbar its lawyers from doing their work is perhaps one of the LSL’s most corrupt and dishonourable acts ever.
In a follow-up interview with the Lesotho Times, LSL secretary general, Advocate Ithabeleng Phamotse, confirmed they had issued out the memo to all the affected NGOs.
“They are continuing to practice against the law which is very clear that practicing certificates are issued to lawyers under law firms and the NGOs are not law firms,” said Adv Phamotse.
When asked what would happen to vulnerable communities which cannot afford legal services and depend on such NGOs, Adv Phamotse said the Legal Aid was in place to help vulnerable people.
Alternatively, she said such NGOs could brief independent lawyers’ chambers to represent them in court.
“It is not only the NGOs which hire lawyers, but almost every institution has its own lawyer who is not allowed to practice in court but rather to advise the institutions in legal matters. The internal lawyer’s duty is to brief the private practitioners when faced with litigation. All companies work like that so what is peculiar about those NGOs?” she asked rhetorically.
Adv Phamotse said the LSL was responding to its members’ concerns over NGOs which they claimed were stealing their business when they (NGOs) were surviving on donor funding.
Contacted for comment, FIDA programmes director, Adv Thusoane Ntlama, said they were shocked about the ultimatum. The LSL had never tried to engage them on the matter.
“Whilst we are still trying to digest this bomb that the Law Society has just dropped on us, we cannot just decide to hand over our clients’ files to the Law Society without the clients’ consent. We still have to deliberate on the matter as FIDA executive because we have cases of our clients pending in courts. So we cannot just abandon them,” said Ms Ntlama.
Ms Ntlama said their lawyers were admitted practitioners in the courts and therefore eligible to represent clients in courts.
“Some of the people who come to us would have tried the Legal Aid route and would not have gotten help. Are we saying we should send them back? Also, clients have a right to choose whom they want to represent them in court,” she said.
Furthermore, one of the NGOs representatives, Adv Lepeli Moeketsi of Seinoli Legal Centre, said although his organisation had not received any communication from the LSL, the move would have serious implications on human rights advocacy.
“Our clients are vulnerable people who do not have money so they cannot afford lawyers. Some of the people we represent would not even be aware that their rights are being trampled upon until we talk to them.
“Legal Aid does not have capability to deal with all these cases. For starters, they have a shortage of staff. This decision will have very serious repercussions on human rights.
“We are not taking their clients because we are only representing vulnerable people who do not have money to even afford legal services. That section is inconsistent with the constitution as it will hamper people’s rights and that is wrong,” said Adv Moeketsi.
What makes the LSL stance more perplexing is that unlike companies, that can be incorporated by anyone wishing to engage in business, lawyers are accredited to practice as individuals. Once accredited, they can practice in partnerships, under NGOs or in private or public companies. To suggest that they should only appear in court when working independently in private law firms is wholly incomprehensible.
The LSL does not also explain why it is only attempting to disbar the NGO lawyers now, when they have been helping the poor for long. The only feasible option for the NGO lawyers and the poor masses they represent is to ignore the LSL directive and seek a remedy in court if it tries to enforce the insane policy.
This is not the only misguided policy that the LSL has tried to pursue. It has previously even tried to bar competent foreign lawyers, especially from South Africa, from being accredited to work in Lesotho.
