Nat Molomo MASERU — A Teyateyaneng-based lawyer has launched a constitutional challenge against the Legal Practitioners’ Act 1983 which he claims discriminates against advocates.
Advocate Matšasaneng Ralekoala told a constitutional court consisting of Justice Tšeliso Monaphathi (presiding), Justice Lebohang Molete and Justice John Musi that his rights to practise law as an advocate were being violated by the provisions of the Legal Practitioners’ Act.
The court will deliver judgment on the matter on March 30.
Under the Legal Practitioners’ Act all advocates must be instructed by an attorney before appearing in court.
The law also bars advocates from handling or receiving funds directly from clients.
But Advocate Ralekoala argues that the law places undue restrictions on advocates.
He said there was no rational basis for creating a divided bar in Lesotho.
Ralekoala said while the law restricts advocates from taking instructions and fees directly from clients, and may not appear in court without being instructed by an attorney, there is no similar obligation for attorneys to instruct an advocate.
“The fact that advocates are discriminated against, and we respectfully submit they are treated as second class legal practitioners, appears from the fact that even attorneys who gained that status by virtue of having been articled clerks without any formal academic legal training enjoy audience in all courts, and the right to consult clients and demand fees from them,” Ralekoala said.
“Advocates have no such rights without restrictions,” he said.
Ralekoala also argued that the provisions of the Legal Practitioners Act 1983 and the Rules of Court violate the provisions of sections 18 and 19 of the Constitution of Lesotho.
He argued that section 18 of the Constitution provides that “no law shall make any provision that is discriminatory either of itself or in effect”.
He also argued that the constitution provides that “no person shall be treated in a discriminatory manner by any person by virtue of any written law or in the performance of the functions of any public office or any public authority”.
The Minister of Law Justice, Human Rights, Law and Constitutional Affairs, the Law Society and the Attorney-General were cited as respondents in the application.
Attorney-General Tšokolo Makhethe KC opposed the application on behalf of the respondents.
He said while they concede that there is discrimination they were opposed to a declaratory order to suspend the provisions of the law complained about.
“Thus it is self-evident that a declaratory (order) that the rule is invalid and the making of an order to strike it down will unavoidably both lead to a vacuum, which cannot be in the interest of the people of Lesotho,” Makhethe said.
He told the court that the legal profession in Lesotho must be allowed enough time to go back to the drawing board to ponder what should be an appropriate legislative model.
The Attorney-General submitted that the application should be granted in so far as Rule 17 (c) of the High Court rules and Rule 20 (1) which bar advocates to appear without instructions from attorneys are concerned.
Advocate Sakoane Sakoane, who represented the Law Society of Lesotho, urged the court to declare sections of the Legal Practitioners Act and Rules of the Court void as they contradicted sections 18 and 19 of the Constitution of Lesotho.
Attorney Qhalehang Letsika, who was asked by the court to give his opinion, said there was need to set up a strong framework to ensure quality work by lawyers.
He said this was necessary to avoid situations where lawyers appear in court after graduating today only to disappear the following day.
Advocate Motiea Teele KC and Advocate Salemane Phafane represented Ralekoala.