• describes Bar Examination requirement as discriminatory
• demands that Sakoane and all admitted lawyers undergo the same test

Moorosi Tsiane

CHIEF Justice Sakoane Sakoane cannot demand that law graduates undergo a Bar Practical Examination before being admitted as advocates in the High Court when he himself was admitted without writing such tests.

This according to an aggrieved National University of Lesotho (NUL) Bachelor of Laws degree graduate, Karabo Motoena, who argues that the decision, made on 15 November 2024 during a meeting between Justice Sakoane and the Law Society of Lesotho (LSL), is discriminatory.

Section 6(1)(c)(iii) of the Legal Practitioners Act, 1983, has always required that law graduates write the bar examination to be admitted as advocates.

It reads: “a person who applies to be admitted and enrolled as an advocate shall produce to the satisfaction of the High Court proof that he or she has satisfied all the requirements for degree of Bachelor of Law of the National University of Lesotho, or being a citizen of Lesotho has satisfied the requirements of the degree of Bachelor of Laws of a University outside Lesotho and has passed a Bar Practical Examination set by the Law Society, or Board of Examiners appointed by it or by the Chief Justice for that purpose.”

Only those Basotho who had obtained their degrees from other foreign jurisdictions were mandated to write the Bar Practical Examination. It’s not clear whether that actually happened as the Law Society had for long been in a state of paralysis until Advocate Lintle Tuke took over and started a spirited effort to reform it.

Everyone including NUL graduates would now be required to write these exams before being formally admitted as per the new rules established by Justice Sakoane and the LSL as of their meeting late last year.

They agreed that Section 6 had been misinterpreted all along, and that NUL graduates should also sit for the tests before being admitted into practice.

The decision is now challenged by Ms Motoena who argues that it would be discriminatory for her and her peers to be tested while previous NUL graduates, including Justice Sakoane, never sat for the examination.

Ms Motoena argues that she and her peers must be admitted without sitting for the examinations.  If they are forced to sit for the exams, then the admission and enrolment of all legal practitioners who did not sit for the same exams must be declared unlawful.

If her argument succeeds, it will inevitably create chaos in the judiciary. This because the enrollment of all legal practitioners—some of whom serve as judges, magistrates, and King’s Counsels, or hold other legal positions—would have to be declared invalid and revoked.

In her court papers, Ms Motoena challenges the Chief Justice’s decision to impose the practical examination requirement.

“Section 6(1)(c)(iii) provides that any person who has satisfied the requirements for the degree of Bachelor of Laws at the National University of Lesotho is eligible for admission as an advocate of the courts of Lesotho.

“My research shows that no graduate of NUL, including current judges of the High Court and Court of Appeal, was required to write the Bar Exams before their admission as advocates. This makes the current (new) requirement discriminatory.”

The Bar Practical Examination is scheduled for 21 and 28 February 2025, with oral examination dates yet to be announced. However, Ms Motoena contends that the process is fundamentally flawed.

“In countries like South Africa, candidates writing Bar Exams are required to undergo structured pupillage under experienced legal practitioners. This ensures they acquire practical experience and cognitive skills before sitting for the exam. In Lesotho, there is no such preparation system, and new graduates are left to fend for themselves without support or training from experienced lawyers.”

Ms Motoena accuses the LSL of failing to invest in the training and mentorship of young lawyers, instead allegedly focusing on social activities such as organizing parties.

Ms Motoena asserts that the requirement of the Bar Exam is unjust and violates her constitutional rights under Section 18(4), which prohibits discriminatory application of the law.

“The decision to require us to write the Bar Practical Examinations is not justified in a democratic society. It imposes a restriction on me that was not applied to others who benefited from the same law. This amounts to unequal treatment under the law and is inherently unfair.”

She also argues that the absence of a structured system for preparing candidates for the Bar Exam makes the requirement prejudicial and detrimental.

“The Law Society does not enforce pupillage, and there are no lawyers willing to take in new graduates for mentorship. Those who are fortunate enough to secure placements are often exploited and left without adequate support. This creates a highly unequal and unsustainable system for young lawyers.”

Ms Motoena is calling on the High Court to invalidate the Chief Justice’s decision and declare it unconstitutional. She maintains that the decision is discriminatory and unfair, as it retroactively imposes a burden that was not placed on previous graduates.

Ms Motoena intends to move her application before the High Court on 17 February 2025 through her lawyer, Advocate Tebalo Potsane.