The court of Appeal has barred a senior attorney from practice over misappropriation of trust funds.
In a ground breaking judgment issued in Gaborone on Thursday morning, the court ordered the Botswana Law Society to strike the name of Sam Mutoriti from the roll of legal practitioners which is kept by the Registrar of legal practitioners.
Although his law firm, Mutoriti Attorneys remains in operation, Mutoriti, who is said to be a Zimbabwean national, is likely to lose his work permit, according to the rules.
“Attorneys Miss Kugisani Alidi and Mr Zaeem Anwar are appointed curators bonis to control and administer the trust account(s) of Sam Mutoriti Attorneys with immediate effect,” Judge President, Ian Kirby made the ruling.
What led Mutoriti to lose his practicing licence is a sum of P210 000 which was deposited into his trust account by Dr Greyford Zulu, to pay for a house he (Zulu) was purchasing. Information before court suggests that Zulu was assured by Mutoriti that the house would be transferred into his name within two weeks. That was in June 2012.
Further evidence led in court suggests that this did not happen and in due course Dr Zulu requested a refund which he repeated on several occasions. His money was not repaid and Mutoriti proved elusive and In September he then furnished Dr Zulu with a copy of a bank transfer slip, claiming to have repaid the money into the doctor’s account.
That information proved false as the money was not paid.
Weeks later he is said to have confessed to Zulu that he had used the money for his own personal use. He then repaid P50 000 and undertook in writing to pay a further P50 000 before the end of September and to clear the balance on 12th October. Nonetheless he failed to do so and only deposited P20 000 in October. Zulu then reported him to the LSB and also laid the charge of theft with the police.
Mutoriti later paid Zulu all his money, but evidence before court, shows that the issue was not amicably resolved within the time limit set. Even though Zulu withdrew the case from the LSB after receiving all his money, the LSB established a case of professional misconduct against Mutoriti.
Mutoriti is said to have been not so cooperating with the law Society and not very truthful and on the 8th August, the Society informed him that the disciplinary committee has found him guilty of misconduct and has recommended to the LSB council that he be disbarred.
The council approved the recommendation but Mutoriti opposed it and the matter reached the High court. Mutoriti contended that his removal from the roll is “a very extreme and catastrophic sanction reserved for those who display a grave and irreparable defect of character.”
He further pleaded that he was the sole proprietor of his practice from which he supported his wife and five children.
His other contention was that the LSB relied upon the single, isolated and withdrawn complaint of Dr Zulu, “while acknowledging simultaneously that I was admitted as far back as 1993 and by necessary implication have had an unblemished record all this time.”
Mutoriti was admitted to practice as an attorney in Botswana in 1993. However according to Tshiamo Rantao of Rantao Kewagamang Attorneys, who represented LSB in this matter, Mutoriti did not really have an “unblemished” record because, in February 1999, he was removed from the roll after failing to renew his practising certificate. This followed a damning audit report commissioned by the Law Society after receiving “a string of complaints from the public.” The audit, however, could not be completed because Mutoriti said he had lost certain of his receipts books and other documents in an office move. His trust account was found to be not properly kept.
Although the High court did find Mutoriti guilty of professional misconduct, Justice Mothobi ruled that he be suspended for a period of twelve months, which suspension was to be suspended for a period of two years on condition that he did not within that period commit any act of misconduct or any conduct which includes fraud, breach of trust and disgraceful or dishonourable conduct incompatible with the status of a legal practitioner.
It was against this ruling that the LSB appealed the matter that led to Mutoriti being barred from practice by the court of Appeal, which is the highest court in the land.
The court of Appeal argued that, the fact that Mutoriti repaid Zulu his money does not detract from the gravity of his offence. That he would be “embarrassed, by being struck off the roll, that his children and wife would suffer and that his five employees would lose their jobs, according to the Judge President, are foreseeable consequences common to the cases of most attorneys who stand to be struck off for misconduct.
“They are by no means exceptional, let alone rare, so as to depart from the normal sanction for dishonesty of striking out,” the Judge pronounce and added that, “this was a clear case of theft by an attorney of large sum of money held by him in trust on behalf of his client. The proper sanction was one of striking him from the roll and this was by no means ‘wildly disproportionate’, as argued by the respondent. It was the proper order and it is the one that I will now substitute for the order of Mothobi J.”
Judge President, Ian Kirby made the ruling together with a panel of two other Judges, Lord Abernethy and Isaac Lesetedi.
Kirby further warned practising attorneys against misconduct and advised them to read the ground breaking judgement.
Government is currently sitting on 4 400 vacant posts that remain unfilled in the civil service. This is notwithstanding the high unemployment rate in Botswana which has been exacerbated by the recent outbreak of the deadly COVID-19 pandemic.
Just before the burst of COVID-19, official data released by Statistics Botswana in January 2020, indicate that unemployment in Botswana has increased from 17.6 percent three years ago to 20.7 percent. “Unemployment rate went up by 3.1 percentage between the two periods, from 17.6 to 20.7 percent,” statistics point out.
Leading commercial bank, First National Bank Botswana (FNBB), expects the central bank to sharpen its monetary policy knife and cut the Bank Rate twice in the last quarter of 2020.
The bank expects a 25 basis point (bps) in the beginning of the last quarter, which is next month, and another shed by the same bps in December, making a total of 50 bps cut in the last quarter. According to the bank’s researchers, the central bank is now holding on to 4.25 percent for the time being pending for more informed data on the economic climate.
An audit of the accounts and records for the supply of food rations to the institutions in the Northern Region for the financial year-ended 31 March 2019 was carried out. According to Auditor General’s report and observations, there are weaknesses and shortcomings that were somehow addressed to the Accounting Officer for comments.
Auditor General, Pulane Letebele indicated on the report that, across all depots in the region that there had been instances where food items were short for periods ranging from 1 to 7 months in the institutions for a variety of reasons, including absence of regular contracts and supplier failures. The success of this programme is dependent on regular and reliable availability of the supplies to achieve its objective, the report said.
There would be instances where food items were returned from the feeding centers to the depots for reasons of spoilage or any other cause. In these cases, instances had been noted where these returns were not supported by any documentation, which could lead to these items being lost without trace.
The report further stressed that large quantities of various food items valued at over P772 thousand from different depots were damaged by rodents, and written off.Included in the write off were 13 538 (340ml) cartons of milk valued at P75 745. In this connection, the Auditor General says it is important that the warehouses be maintained to a standard where they would not be infested by rodents and other pests.
Still in the Northern region, the report noted that there is an outstanding matter relating to the supply of stewed steak (283×3.1kg cans) to the Maun depot which was allegedly defective. The steak had been supplied by Botswana Meat Commission to the depot in November 2016.
In March 2017 part of the consignment was reported to the supplier as defective, and was to be replaced. Even as there was no agreement reached between the parties regarding replacement, in 51 October 2018 the items in question were disposed of by destruction. This disposal represented a loss as the whole consignment had been paid for, according to the report.
“In my view, the loss resulted directly from failure by the depot managers to deal with the matter immediately upon receipt of the consignment and detection of the defects. Audit inspections during visits to Selibe Phikwe, Maun, Shakawe, Ghanzi and Francistown depots had raised a number of observations on points of detail related to the maintenance of records, reconciliations of stocks and related matters, which I drew to the attention of the Accounting Officer for comments,” Letebele said in her report.
In the Southern region, a scrutiny of the records for the control of stocks of food items in the Southern Region had indicated intermittent shortages of the various items, principally Tsabana, Malutu, Sunflower Oil and Milk which was mainly due to absence of subsisting contracts for the supply of these items.
“The contract for the supply of Tsabana to all depots expired in September 2018 and was not replaced by a substantive contract. The supplier contracts for these stocks should be so managed that the expiry of one contract is immediately followed by the commencement of the next.”
Suppliers who had been contracted to supply foodstuffs had failed to do so and no timely action had been taken to redress the situation to ensure continuity of supply of the food items, the report noted.
In one case, the report highlighted that the supplier was to manufacture and supply 1 136 metric tonnes of Malutu for a 4-months period from March 2019 to June 2019, but had been unable to honour the obligation. The situation was relieved by inter-depot transfers, at additional cost in transportation and subsistence expenses.
In another case, the contract was for the supply of Sunflower Oil to Mabutsane, where the supplier had also failed to deliver. Examination of the Molepolole depot Food Issues Register had indicated a number of instances where food items consigned to the various feeding centres had been returned for a variety of reasons, including food item available; no storage space; and in other cases the whole consignments were returned, and reasons not stated.
This is an indication of lack of proper management and monitoring of the affairs of the depot, which could result in losses from frequent movements of the food items concerned.The maintenance of accounting records in the region, typically in Letlhakeng, Tsabong, and Mabutsane was less than satisfactory, according to Auditor General’s report.
In these depots a number of instances had been noted where receipts and issues had not been recorded over long periods, resulting in incorrect balances reflected in the accounting records. This is a serious weakness which could lead to or result in losses without trace or detection, and is a contravention of Supplies Regulations and Procedures, Letebele said.
Similarly, consignments of a total of 892 bags of Malutu and 3 bags of beans from Tsabong depot to different feeding centres had not been received in those centres, and are considered lost. These are also not reflected in the Statement of Losses in the Annual Statements of Accounts for the same periods.