Appeals Court bars lawyer from practice
News
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.
You may like

President Mokgweetsi Masisi says the issue of sustainable natural resources management has always been an important part of Botswana’s national development agenda.
Masisi was speaking this week on the occasion of a public lecture at Virginia Polytechnic, under theme, “Merging Conservation, Democracy and Sustainable Development in Botswana.”
Botswana, according to Masisi, holds the view that the environment is fragile and as such, must be managed and given the utmost protection to enable the achievement of Sustainable Development Goals (SDGs).
“It is necessary that we engage one another in the interchange of ideas, perspectives, visualizations of social futures, and considerations of possible strategies and courses of action for sustainable development,” said Masisi.
On the other hand, dialogue, in the form of rigorous democratic discourse among stakeholders presents another basis for reconfiguring how people act on their environments, with a view to conserving its resources that “we require to meet our socio-economic development needs on a sustainable basis,” Masisi told attendees at the public lecture.
He said government has a keen interest in understanding the epidemiology and ecology of diseases of both domestic and wild animals. “It is our national interest to forestall the dire consequences of animal diseases on our communities livelihoods.”
President Masisi hoped that both Botswana and Virginia could help each other in curbing contagious diseases of wildlife.
“We believe that Virginia Tech can reasonably share their experiences, research insights and advances in veterinary sciences and medicines, to help us build capacity for knowledge creation and improve efforts of managing and containing contagious diseases of wildlife. The ground is fertile for entering into such a mutually beneficial partnership.”
When explaining environmental issues further, Masisi said efforts of conservation and sustainable development might at times be hampered by the emergence and recurrence of diseases when pathogens mutate and take host of more than one species.
“Water pollution also kills aquatic life, such as fish, which is one of humanity’s much deserved sources of food. In this regard, One Health Approach imposes ecological responsibility upon all of us to care for the environment and the bio-diversity therein.”
He said the production and use of animal vaccines is an important space and tool for conservation, particularly to deal with trans-border animal diseases.
“In Botswana, our 43-year-old national premier pharmaceutical institution called Botswana Vaccine Institute has played its role well. Through its successful production of highly efficacious Foot and Mouth vaccines, the country is able to contain this disease as well as supply vaccines to other countries in the sub-region.:
He has however declared that there is need for more help, saying “We need more capacitation to deal with and contain other types of microbial that affect both animals and human health.”

President Mokgweetsi Masisi has expressed a strong worry over elephants killing people in Botswana. When speaking in Virginia this week, Masisi said it is unfortunate that Batswana have paid a price with their own blood through being attacked by elephants.
“Communities also suffer unimaginable economic losses yearly when their crops are eaten by the elephants. In spite of such incidents of human-elephant conflict, our people embrace living together with the animals. They fully understand wildlife conservation and its economic benefits in tourism.”
In 2018, Nthobogang Samokwase’s father was attacked by an elephant when travelling from the fields, where he stayed during the cropping season.
It was reported that the man couldn’t run because of his age. He was found trampled by the elephant and was pronounced dead upon arrival at the hospital.
In the same year, in Maun, a 57-year-old British woman was attacked by an elephant at Boro and died upon arrival at the hospital. The woman was with her Motswana partner, and were walking dogs in the evening.
Last month, a Durban woman named Carly Marshall survived an elephant attack while on holiday in the bush in Botswana. She was stabbed by one of the elephant’s tucks through the chest and was left with bruises. Marshall also suffered several fractured ribs from the ordeal.
President Masisi Botswana has the largest population of African elephants in the world, totaling more than 130 000. “This has been possible due to progressive conservation policies, partnerships with the communities, and investment in wildlife management programmes.”
In order to benefit further from wildlife, Masisi indicated that government has re-introduced controlled hunting in 2019 after a four-year pause. “The re-introduction of hunting was done in an open, transparent and democratic way, giving the communities an opportunity to air their views. The funds from the sale of hunting quota goes towards community development and elephant conservation.”
He stressed that for conservation to succeed, the local people must be involved and derive benefits from the natural resources within their localities.
“There must be open and transparent consultations which involve all sectors of the society. It is against this backdrop that as a country, we lead the continent on merging conservation, democracy and sustainable development.”
Masisi stated that Botswana is open to collaborative opportunities, “particularly with identifiable partners such as Virginia Tech, in other essential areas such as conservation, and the study of the interplay among the ecology of diseases of wild animals and plants, and their effects on human health and socio-economic development.”

Minister for State President Kabo Morwaeng says government will continue to make resources available in terms of financial allocations and human capital to ensure that Botswana achieves the ideal of eradicating HIV and AIDS as a public health threat by 2030.
Morwaeng was speaking this morning in Gaborone at the High-Level Advocacy event to accelerate HIV Prevention in Botswana. He said the National AIDS and Health Promotion Agency (NAPHA), in partnership with UNAIDS, UN agencies, the Global Fund and PEPFAR, have started a process of developing transition readiness plan for sustainability of HIV prevention and treatment programmes.
“It is important for us, as a country that has had a fair share of donor support in the response to an epidemic such as HIV and AIDS, to look beyond the period when the level of assistance would have reduced, or ceased, thus calling for domestic financing for all areas which were on donor support.”
Morwaeng said this is important as the such a plan will guarantee that all the gains accrued from the response with donor support will be sustained until the end when “we reach the elimination of HIV and AIDS as a public health threat by 20230,” he said.
“I commit to continue support efforts towards strengthened HIV prevention, accentuating HIV primary prevention and treatment as prevention towards Zero New Infections, Zero Stigma, Discrimination and Zero AIDS related death, to end AIDS in Botswana.”
He reiterated that government commits to tackle legislative, policy and programming challenges that act as barriers to the achievement of the goal of ending AIDS as a public health threat.
In the financial year 2022/2023, a total of 119 Civil Society Organizations, including Faith Based Organizations, were contracted with an amount of P100 million to implement HIV and NCDs prevention activities throughout the country, and the money was drawn from the Consolidated Fund.
Through an upcoming HIV Prevention Symposium, technical stakeholders will use outcomes to develop the Botswana HIV Prevention Acceleration Road Map for 2023-2025.
Morwaeng stated that government will support and ensure that Botswana plays its part achieving the road map. He said there is need to put hands on the deck to ensure that Botswana sustains progress made so far in the fight against HIV and AIDS.
“There are tremendous achievements thus far to, reach and surpass the UNAIDS fast track targets of 95%- 95%- 95% by the year 2025. As reflected by the BAIS preliminary results of 2021, we now stand at 95- 98- 98 against the set targets.”
“These achievements challenge us to now shift our gears and strive to know who are the remaining 5% for those aware of their HIV status, 2% of enrolment on treatment by those aware of their status and 2% of viral suppression by those on treatment.”
Explaining this further, Morwaeng said shift in gears should extend to coming up with robust strategies of determining where these remaining people are as well as how they will be reached with the necessary services.
“These are just some of the many variables that are required to ensure that as a country, we are well positioned to reaching the last mile of our country’s response to the HIV and AIDS pandemic.”