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.
Despite being hailed and still regarded as a hero who saved many lives through his decision to crash the BF5 fighter Jet around the national stadium on the eve of the 2018 BDF day, the deceased Pilot, Major Clifford Manyuni’s actions were treated as a letdown within the army, especially by his master-Commander of the Air Arm, Major General Innocent Phatshwane.
Manyuni’s master says he was utterly disappointed with his Pilot’s failure to perform “simple basics.”
Manyuni was regarded as a hero through social media for his ‘colourful exploits’, but Phatshwane who recently retired as the Air Arm Commander, revealed to WeekendPost in an exclusive interview that while he appreciated Batswana’s outpouring of emotions and love towards his departed Pilot, he strongly felt let down by the Pilot “because there was nothing wrong with that Fighter Jet and Manyuni did not report any problem either.”
The deceased Pilot, Manyuni was known within the army to be an upwardly mobile aviator and in particular an air power proponent.
“I was hurt and very disappointed because nobody knows why he decided to crash a well-functioning aircraft,” stated Phatshwane – a veteran pilot with over 40 years of experience under the Air Arm unit.
Phatshwane went on to express shock at Manyuni’s flagrant disregard for the rules of the game, “they were in a formation if you recall well and the guiding principle in that set-up is that if you have any problem, you immediately report to the formation team leader and signal a break-away from the formation.
Manyuni disregarded all these basic rules, not even to report to anybody-team members or even the barracks,” revealed Phatshwane when engaged on the much-publicised 2018 incident that took the life of a Rakops-born Pilot of BDF Class 27 of 2003/2004.
Phatshwane quickly dismisses the suggestion that perhaps the Fighter Jet could have been faulty, “the reasons why I am saying I was disappointed is that the aircraft was also in good condition and well-functioning. It was in our best interest to know what could have caused the accident and we launched a wholesale post-accident investigation which revealed that everything in the structure was working perfectly well,” he stated.
Phatshwane continued: “we thoroughly assessed the condition of the engine of the aircraft as well as the safety measures-especially the ejection seat which is the Pilot’s best safety companion under any life-threatening situation. All were perfectly functional.”
In aircrafts, an ejection seat or ejector seat is a system designed to rescue the pilot or other crew of an aircraft in an emergency. The seat is propelled out of the aircraft by an explosive charge or rocket motor, carrying the pilot with it.”
Manyuni knew about all these safety measures and had checked their functionality prior to using the Aircraft as is routine practice, according to Phatshwane. Could Manyuni have been going through emotional distress of some sort? Phatshwane says while he may never really know about that, what he can say is that there are laid out procedures in aviation guiding instances of emotional instability which Manyuni also knew about.
“We don’t allow or condone emotionally or physically unfit Pilots to take charge of an aircraft. If a Pilot feels unfit, he reports and requests to be excused. We will subsequently shift the task to another Pilot. We do this because we know the risks of leaving an unfit pilot to fly an aircraft,” says Phatshwane.
Despite having happened a day before the BDF day, Phatshwane says the BDF day mishap did not really affect the BDF day preparations, although it emotionally distracted Manyuni’s flying formation squad a bit, having seen him break away from the formation to the stone-hearted ground. The team soldiered on and immediately reported back to base for advice and way forward, according to Phatshwane.
Sharing the details of the ordeal and his Pilots’ experiences, Phatshwane said: “they (pilots) were in distress, who wouldn’t? They were especially hurt by the deceased‘s lack of communication. I immediately called a chaplain to attend to their emotional needs.
He came and offered them counselling. But soldiers don’t cry, they immediately accepted that a warrior has been called, wiped off their tears and instantly reported back for duty. I am sure you saw them performing miracles the following day at the BDF day as arranged.”
Despite the matter having attracted wide publicity, the BDF kept the crash details a distance away from the public, a move that Phatshwane felt was not in the best interest of the army and public.
“The incident attracted overwhelming public attention. Not only that, there were some misconceptions attached to the incident and I thought it was upon the BDF to come out and address those for the benefit of the public and army’s reputation,” he said.
One disturbing narrative linked to the incident was that Manyuni heroically wrestled the ‘faulty’ aircraft away from the endangered public to die alone, a narrative which Phatshwane disputes as just people’s imaginations. “Like I said the Aircraft was functioning perfectly,” he responded.
A close family member has hinted that the traumatised Manyuni family, at the time of their son’s tragedy, strongly accused the BDF ‘of killing their son’. Phatshwane admits to this development, emphasising that “Manyuni’s mother was visibly and understandably in inconsolable pain when she uttered those words”.
Phatshwane was the one who had to travel to Rakops through the Directorate of Intelligence Services (DIS) aircraft to deliver the sad news to the family but says he found the family already in the know, through social media. At the time of his death, Manyuni was survived by both parents, two brothers, a sister, fiancée and one child. He was buried in Rakops in an emotionally-charged burial. Like his remains, the BDF fighter jets have been permanently rested.
A matter in which former President Lt Gen Ian Khama had brought before Broadhurst Police Station in Gaborone, requesting the State to charge Directorate on Corruption and Economic Crime (DCEC) lead investigator, Jako Hubona and others with perjury has been committed to Headquarters because it involves “elders.”
Broadhurst Police Station Commander, Obusitswe Lokae, told this publication this week that the case in its nature is high profile so the matter has been allocated to his Officer Commanding No.3 District who then reported to the Divisional Commander who then sort to commit it to Police Headquarters.