Legal Practitioners Act, 1983
Supplement No. 1 to Gazette No. 43 of 30th September, 1983
Legal Practitioners Act 1983
Act No. 11 of 1983
Published by the Authority of the Prime Minister
“Master” means the Master of the High Court;
“notary public” means a person admitted to practise as a notary public in Lesotho;
“practising attorney” means an attorney who holds a current practising certificate;
“Registrar” means the Registrar of the High Court or an Assistant Registrar;
“Registrar-General” means the Registrar of deeds appointed under the Deeds Registry Act 1967.
3. From and after the commencement of this Act no person shall be admitted and enrolled as a legal practitioner unless he has complied with this Act
4. A person who at the commencement of this Act is admitted and enrolled as a legal practitioner in terms of a previous law governing the admission of legal practitioners shall not be required to be re-admitted or re-enrolled as such unless that person thereafter withdraws his name from the roll at his own request or has been struck off the roll in terms of this Act, but shall otherwise be subject to this Act
5. (1) Except where specially provided, nothing in this Act shall apply to Law Officers.
(2) Notwithstanding anything to the contrary in this Act or any other Law, Law Officers shall be entitled and shall be considered to have been entitled to perform any work of an advocate and attorney and to appear in the courts of Lesotho on behalf of the Crown, a department of the Government or any officer or person in any civil proceedings.
(3) Where a party is represented in any civil proceedings by a Law Officer, the court may award costs as if the party is represented by an advocate or attorney:
Except that if any party is represented by an advocate, the court may award costs as if the party represented by a Law Officer were also represented by an advocate.
(4) Costs awarded under subsection (3) to a party represented by a Law Officer shall be charged, taxed and recovered in the same manner as costs awarded to a party not represented by a Law Officer and shall be paid into the Consolidated Fund.
(5) In this section costs includes fees, expenses, counsel’s and attorney’s fees and witnesses’ expenses, where costs are awarded to the Government and court fee that would have been payable if the Government had not been a party to the proceedings.
PART II Admission of Advocates
6. (1) A person who applies to be admitted and enrolled as an advocate shall produce to the satisfaction of the High Court proof that —
(a) he is a fit and proper person to be admitted as an advocate;
(b) he is of or above the age of 21 years; and
(c) he —
(i) has been admitted as a barrister or advocate in other countries and, has continuously practised in that capacity for a period of 5 years or more, and, at the date of application, remains enrolled as banister or advocate in those countries, and has passed practical examinations set by the Law Society or Chief Justice for that purpose;
(ii) has been admitted to practise as an advocate in any Division of the Supreme Court of the Republic of South Africa or of the Mandated Territory of South- West Africa or in the High Court of Zimbabwe, and, has continuously practised in that capacity for a period of 5 years or more, and, at the date of application remains enrolled as an advocate of such Supreme Court or High Court and has passed practical examinations set by the Law Society or Chief Justice;
(iii) has satisfied all the requirements for a degree of Bachelor of laws 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; or
(iv) has been or is entitled to be, admitted to practise as an attorney of the Courts Lesotho under this Act and is also otherwise entitled to be admitted as an advocate of Lesotho,
and thereupon the High Court shall, unless cause to the contrary is shown to its satisfaction, admit and enrol that person as an advocate.
(2) An advocate shall not —
(a) appear in the Courts of Lesotho otherwise than on the instructions of an attorney admitted to practise in the courts of Lesotho; and that attorney is in possession of a practising certificate;
(b) demand or receive money instructions direct from a client except through his instructing attorneys being attorneys in possession of current practising certificate.
The Conferment of the Honour and Dignity of King's Counsel to practising Advocates
7. (1) The King may, on the recommendation of the Chief Justice, confer the honour and dignity of King’s Counsel to advocates who have rendered distinguished services in the law practice in the Courts of Lesotho.
(2) The First Law Officer of the Crown shall automatically receive the honour and dignity of King’s Counsel on appointment
(3) The First Law Officer of the Crown shall take precedence over all King’s Crown Counsel, and all the King’s Counsel shall take precedence over each other by the respective dates of their admissions
(4) Subject to sub-sections (2) and (3) King's Counsel shall take precedence over each other in accordance with their respective dates on which they received the honour.
(5) A person who has been appointed as King's Counsel shall practise exclusively as an advocate and may have the assistance of junior counsel in his work.
(6) In His consideration of advocates who may receive the honour and dignity of King’s Counsel, the King shall have regard to the age of that person, the length of service which shall not be less than 15 years as a legal practitioner and such other qualifications as the King, on the advice of the Chief Justice, may consider appropriate.
(7) An advocate who has been appointed King’s Counsel in another country may while appearing before the High Court or the: Court of Appeal be accorded the same rights and privileges as a person upon whom the honour and dignity of King’s Counsel has been conferred under this section.
PART IV Admission of Attorneys
8. A person who applies to be admitted and enrolled as an attorney shall produce to the satisfaction of the High Court proof that —
(a) he is a fit and proper person to be admitted as an attorney;
(b) he is of or above the age of 21 years; and
(c) either —
(i) he is a Solicitor admitted to practise in other countries and that he remains enrolled as a Solicitor of such Court and is not under any order of suspension in any such courts respectively and has passed practical examinations set by the Law Society;
(ii) he is an attorney in any Division of the Supreme Court of the Republic of South Africa or the Man-
dated Territory of South-West Africa or in the High Court of Zimbabwe, and that he remains enrolled as an attorney of that Court and is not under any order of suspension in such Court and has passed practical examinations set by the Law Society;
(iii) he has been or is entitled under this Act to be admitted as an advocate of the Courts of Lesotho and has passed the practical examinations referred to in section 43 (4) (a); or
(iv) he has passed the examinations prescribed by the Chief Justice under section 43 (2) (b), and the practical examinations referred to in section 43 (2) (b), and has complied with this Act relating to service under articles and his application for admission and enrolment is made within 2 years from the date of completion of the articles or within such further period as the High Court may allow in terms of section 19 (3) and thereupon the High Court shall, unless cause to the contrary is shown to its satisfaction, admit and enrol that person as an attorney; and
(d) he has an office in Lesotho and that office is manned fulltime by an attorney, notary public or conveyancer engaged in full-time practice in Lesotho- The Law Society may however relax this requirement in deserving cases.
PART V Articles of Clerkship
9. (1) A person who is desirous of being admitted as an Attorney,
and is qualified under section 10, may apply to the Law So- ciety to serve the articles of clerkship under a practising attorney; and the term for which that person is required to serve his articles of clerkship shall be determined in accordance with Part I of the Schedule to this Act.
10. A person intending to serve an attorney under articles
shall produce to the Law Society —
(a) his birth certificate or, if no birth certificate is available evidence of the date and place of his birth and of his birth and of his parentage; and
(b) a certificate to the satisfaction of the Law Society that he is a fit and proper person and that he has —
(i) passed the Cambridge Overseas School Certificate or the matriculation examination conducted and controlled by the Joint Matriculation Board of the University of South Africa or an examination certified by the Permanent Secretary for Education to be equivalent or superior to it; or
(ii) satisfied all the requirements for a degree (not being an honorary degree) at a University within Le-
sotho or for a degree approved by regulations made under section 43 (2) (a) (not being an honorary degree) at a University outside Lesotho.
11. (1) A duplicate original of articles of clerkship shall be
lodged with the Law Society within one month of the date of the articles, together with a duplicate original affidavit testifying to the signatures and date thereof.
(2) On production of a certificate from the Registrar that the fee prescribed under section 43 (1) has been paid and on production of the original articles of clerkship and affidavit attesting the signatures and dates, the Law Society upon being satisfied that the articles are in order and that no objection exists against the registration thereof, shall endorse upon the original articles a certificate to the effect that this section has been complied with.
12. (1) The original articles of clerkship shall in every case within 2 months of the date of the articles be lodged together with an affidavit testifying to the signatures and date thereof and where they were executed, and the fees prescribed under section 43 (1) (a) with the Registrar who shall register the articles.
(2) The Registrar shall not register the articles unless those articles have been endorsed by the Law Society.
(3) If those articles are not registered within 2 months, the service shall, subject to any relief which the High Court may grant, commence on the date of the registration.
13. (1) The original and a duplicate original of each cession of articles, shall within one month of the date thereof, be lodged with the Law Society.
(2) Every such cession shall be accompanied by an original affidavit and a duplicate original affidavit by the cedent as to the due and proper service, and in original affidavit and duplicate original affidavit by the cessionary as to the date on which the articled clerk entered his service.
(3) upon production of the original and duplicate original cession and affidavits and upon production of a certificate from the Registrar that the fee prescribed under section 43 (1) (f) has been paid, the Law Society shall if satisfied that the cession is in order and that no objection exists to the cession, endorse upon the original cession certificate to the effect that the section his been complied with, and that the cession has been approved
(4) If the attorney, under whom an articled clerk has served, has died, or for any other reason discontinued practice, cession of the articles of the articled clerk shall be considered to have been validly executed if it is signed on behalf of the attorney by his legal representative or the Law Society containing the particulars set forth in subsection (2) shall be considered to be affidavit referred to in that subsection and subsection (3)
14. (1) A cession of articles endorsed by the Law Society, an affidavit in like form as provided in section 12(2) and the fees prescribed under section 43 (1) (a) shall within 2 months of the date of the articles be lodged with the Registrar who shall register cession.
(2) Notwithstanding subsection (1) the High Court may order the registration of the cession despite the fact that 2 months have elapsed from the date of registration of the articles.
15. Articles registered in Botswana, Swaziland, England, Scotland, Northern Ireland, the Republic of Ireland, Zimbabwe, the Republic of South Africa or the Mandated Territory of South- West Africa under the law for the time being in force in those countries for the registration of articles, may by leave of the High Court after lodging documents with the Law Society in like manner as is provided in section 12 be ceded to an attorney practising in Lesotho if the articled clerk has served one year of the articles in that country shall be accepted as portion of the term required to be served under section 9.
16. The terms of deeds of articles of clerkship and deeds of cession of articles of clerkship may be amended by the parties thereto with the prior written consent of the Law Society.
17. An attorney shall not have or retain any clerk under articles unless the attorney is actually practising the profession of attorney in Lesotho either on his own account or as a partner in a firm of attorneys and has practised as such continuously for 3 years or more.
18. (1) An attorney shall not at any time have more than two articled clerks.
(2) Notwithstanding subsection (1) on the death or retirement from practice of a member of a firm of attorneys, his surviving or remaining partner may take cession of the articles of a clerk who has been articled to his deceased or retired partner despite the fact that such addition of clerk exceeds the minimum required by subsection (1)-
19. (1) Where any person articled to an attorney has not served under the articles in accordance with this Act, the High Court upon being satisfied that the irregular service was occasioned by reasonable cause and that the service, though irregular is substantially equivalent to regular service and that the Law Society has had due notice of the application, may subject to Part I of the Schedule, at any time during the currency of the articles, or subject to subsection (3). within 2 years of the completion of the articles, condone the irregular service upon such conditions as it may consider appropriate and treat it as though the service in question had been regular and in conformity with this Act
(2) When any articled clerk wishes to absent himself from the office of the attorney to whom he is articled for any period ex-
ceeding 6 weeks in any one year, the High Court, upon being satisfied that the contemplated absence is occasioned by sufficient cause, and that the Law Society and that attorney have had notice of the application, may permit the articled clerk to absent himself from that office except that any time during which the articled clerk is so absent shall be added to the period for which the articled clerk is bound to serve under articles.
(3) The High Court may, on the application of any person made within 2 years from the date of the completion of his articles of clerkship referred to in section 9 allow such further period as it may consider necessary after the expiration of 2 years from the completion of his articles of clerkship, within which the applicant may apply for admission as an attorney under section 8 (c)
(iv) and, if that further period is allowed, the High Court may impose such conditions as it may consider appropriate including a condition relating to the service of further articles.
(4) Where articles of clerkship are or have at any time been cancelled or abandoned before completion thereof, the High Court may, on the application of the person who served under those articles and subject to such conditions as the High Court may impose, order that, for the purposes of this Act, the whole or such part of the period served under those articles, as the High Court considers appropriate, be added to any period served by that person under articles entered into after the first-mentioned articles were cancelled or abandoned and any period so added shall, for the purposes of this Act, be considered to have been served under the last-mentioned articles and continuously with any period served thereunder.
20. Subject to section 19 every clerk articled to an attorney shall, during the whole term of service specified in the articles of clerkship, be and continue to be in the actual-service of that attorney and in the office of his principal and under the direct personal supervision of that attorney or his partner or partners or manager being an attorney:
Except that —
(a) those articles may, with the mutual consent of that attorney and clerk be ceded as herein-before provided to any other attorney who may be willing and competent to accept cession;
(b) in the event of death, insanity, insolvency conviction for crime, imprisonment suspension, striking off the roll or discontinuance of practice of the attorney under whom the clerk is serving, or other similar and sufficient cause, the High Court may, notwithstanding section 18 direct that articles be ceded to any other attorney who may be competent and willing to receive the articled clerk under cession as aforesaid;
and all service completed under paragraph (b) shall be good and effectual for the purposes of this Act.
21. (1) A person who may become bound under articles of clerkship to any attorney shall not during his term of service, without the written consent of the Law Society previously had and obtained, hold any office for remuneration or engage in any business whatsoever other than that of clerk to that attorney and his partner or partners, if any in the practice and employment of an attorney, nor shall such a person during the term of that service, have any pecuniary interest in the practice and employment of an attorney.
(2) In the event of any contravention of subsection (1), the articles shall be null and void, and service thereunder shall be ineffectual, unless the High Court for good cause shown, condones the contravention.
(3) An articled clerk who —
(a) being bound in terms of the Schedule to serve articles for a period of 2 years, has served at least one year of his articles;
(b) being bound in terms of the Schedule to serve articles for a period of 3 years has served at least one year or eighteen months of his articles;
(c) being a person bound in terms of the Schedule to serve articles for a period of 5 years has served at least 2 years of his articles; or
(d) has satisfied all the requirements for the examinations prescribed by regulations made under section 43(2) (a) and has served at least one year of his articles,
may appear in any Subordinate Court and before any board, tribunal or similar body in or before which his principal is entitled to appear instead of and on behalf of that principal who shall be entitled to charge the fees for the appearance as if he himself had appeared.
Admission of Persons Practising in Certain Countries
22. A person who has been admitted and enrolled as a barrister. or advocate or equivalent legal profession of prescribed courts of prescribed country or territory approved for the purposes of this section by the Chief Justice after consultation with the Law Society may be admitted and enrolled as an advocate in Lesotho upon satisfying the High Court that —
(a) he is a fit and proper person to be so admitted and enrolled; and
(b) he has been admitted and enrolled as a barrister, or advocate, of such prescribed country or territory, as the case may be, in that country or territory approved as aforesaid and has practised continuously in that capacity for 5 years or more and that no proceedings against him or complaints about his practice are pending before the
Courts or his Law Society and has passed practical examinations set by the Law Society or Chief Justice; or
(c) he has passed an examination prescribed by the Chief Justice pursuant to section 43 (2) (e) or has been exempted from those examinations by the Chief Justice.
Admission of Notaries
23. The High Court may, upon application made in the manner prescribed by this Act, admit and enrol as a notary an attorney who produces proof that —
(a) he is an attorney, admitted to practise as such in the court of Lesotho, whether before or after the date of commencement of this Act;
(b) he has not at any time been struck off the roll or suspended from practice, and that no proceedings are pending to strike his name off the roll or to suspend him from practice or that there are no complaints about his practice before his Law Society;
(c) either —
(i) he has been admitted to practise as a notary public by any Division of the Supreme Court of the Republic of South Africa or of the Mandated Territory of South-West Africa or by the High Court of Zimbabwe and at the date of the petition remains enrolled as a notary public in such a Court and is not under any order of suspension in such a Court and has passed notarial practical examinations set by the Law Society or Chief Justice; or
(ii) he has passed the practical examination referred to in section 43 (4) (b); and
(d) he has an office in Lesotho and that office is manned fulltime by practising attorney, notary public or conveyancer engaged in full-time practice in Lesotho. The Law Society may relax this requirement in deserving cases.
Admission of Conveyancers
24. The High Court may upon application made in the manner prescribed by this Act admit and enrol as a conveyancer an attorney who produces proof that —
(a) he is an attorney admitted to practise as such in the court of Lesotho whether before or after the date of commencement of this Act; and
(b) he has not at any time been struck off the roll or suspended from practice, and that no proceedings are pending to strike his name off the roll or to suspend him from
practice and there are no complaints about his practice before his Law Society;
(c) either —
(i) he has been admitted to practise as a conveyancer by any Division of the Supreme Court of the Republic of South Africa or the Supreme Court of the Mandated Territory of South-West Africa or by the High Court of Zimbabwe and at the date of the petition remains enrolled as a conveyancer in such a Court and is not under any order of suspension of such a Court and has passed conveyancing practical examination set by the Law Society or the Chief Justice; or
(ii) he has passed examinations referred to in PART IX section 43 (1) (b); and
(d) he has an office in Lesotho and that office is manned fulltime by a practising attorney, notary public or conveyancer engaged in full-time practice in Lesotho. The Law Society may relax this requirement in deserving cases.
25. (1) An attorney, notary or conveyancer shall not practise in the capacity in which he has been admitted and enrolled unless he holds a practising certificate issued by the Law Society under this Act
(2) A practising certificate shall not be issued under this Act unless —
(a) an applicant for the certificate has been admitted and enrolled to practise in the capacity for which he requires the practising certificate;
(b) except in the case of a first application for a certificate, the applicant furnishes to the Law Society an auditor’s certificate containing the statements required by section 28 (1) (a) to (f).
(3) Any practising certificates under this Act may be issued at any time in a year but shall, unless renewed, expire on the 31st October of each year in respect of which it has been issued.
(4) Application by attorney, conveyancer or notary for the renewal of a practising certificate shall be accompanied by the auditor’s certificate referred to in subsection (2) (b) and shall be submitted to the Law Society not later than the 10th day of October each year.
26. (1) The High Court may suspend a practising certificate issued under this Act whenever —
(a) a complaint is made against the holder of a practising certificate which would justify the institution of disciplinary proceedings;
(b) disciplinary proceedings are pending to have the holder of a practising certificate struck off the roll or to sus
pend him from practice;
(c) a holder of practising certificate is convicted of an offence under section 28.
(2) The Law Society shall cancel a practising Certificate issued under this Act whenever the holder —
(a) has been struck off the roll;
(b) has been suspended for a period exceeding the period which the certificate has to run before expiry;
(c) has contravened section 30 or 31.
A practising Certificate under section 25 shall be issued on payment of such fees as the Law Society may by notice prescribe in respect thereof.
Trust Accounts, Conduct of Practitioners and Disciplinary Proceedings
27. (1) A practising attorney, notary or conveyancer having an office within Lesotho shall open and keep a separate trust account at a bank within Lesotho in which he shall deposit all moneys held or received by him in connection with his practice within Lesotho on account of any person; and he shall further keep proper books of account containing particulars and information as to moneys received, held or paid by him for or on account of any person.
(2) The Law Society may by itself or through its nominee and at its own cost, inspect the books of account of any attorney; notary or conveyancer to satisfy itself that subsection (1) is being observed.
(3) Where it is found that an attorney, notary or conveyancer has not complied with subsection (1) he shall pay the costs of inspection.
(4) Subject to subsection (5) an amount standing to the credit of a trust account in the bank shall not form part of the assets of the attorney, notary or conveyancer concerned and that amount shall not be liable to attachment at the instance of any creditor of the attorney, notary or conveyancer.
(5) An excess, remaining after payment of the claim of all persons whose moneys have, or should have, been deposited in the trust account, shall be considered to form part of the assets of that attorney, notary or conveyancer-
(6) Upon application made by the Law Society and upon good cause shown, the High Court may prohibit any attorney; notary or conveyancer from operating in any way his trust account and may appoint a curator bonis to control and administer the trust account with such rights, duties and powers in relation thereto, as the Court may consider appropriate-
(b) Upon the death or insolvency or the assignment of his estate by an attorney, notary or conveyancer having an
office within Lesotho or in the event of an attorney, notary or conveyancer who has an office within Lesotho being struck off the roll or being suspended from practice or being declared by a court of competent jurisdiction to be incapable of managing his own affairs or abandoning his practice, the Master may, upon application made by the Law Society or by any person having an interest in the trust account of the attorney, notary or conveyancer, appoint a curator bonis to control and administer the trust account with such rights, duties and powers prescribed by regulations made under section 43
(2) (d) as the Master may consider appropriate.
(c) A person aggrieved by a decision of the Master under pa- graph (b) may, within 30 days after the decision become known to him or such extended period as may be allowed by the High Court which may confirm or vary the decision as in its opinion the Master ought to have given;
(d) Nothing in this subsection or in subsection (4) contain- ed shall be construed as preventing any attorney, notary or conveyancer, who was practising in partnership with an attorney, notary or conveyancer referred to in paragraph (b), from continuing to operate on the trust account of the partnership in the absence of an order to the contrary issued by the High Court.
(7) A bank at which an attorney, notary or conveyancer having an office within Lesotho keeps the trust account shall not, by reason only of the name or style by which the account is distinguished be deemed to have knowledge that the attorney, notary or conveyancer is not entitled absolutely to all moneys paid or credited to the trust account except that nothing in this subsection contained shall relieve a bank from any liability or obligation under which it would be apart from this Act
(8) Notwithstanding anything in subsection (7) contained a bank at which the attorney, notary or conveyancer keeps the trust account shall not, in respect of any liability of the attorney, notary or conveyancer to the bank not being a liability arising out of or in connexion with that account, have or obtain any recourse or right, whether by way of set-off, counterclaim, charge or otherwise, against moneys standing to the credit of the trust account.
(9) Nothing in this section contained shall be construed so as to —
(a) deprive a bank of any right existing at the time when this Act comes into operation;
(b) take away or affect any just claim, lien, counter-claim, right of set-off or charge of any kind which an attorney, notary or conveyancer may, at common law or under any statute, have against or upon any moneys held or received by him on account of any person.
(10) An attorney, notary or conveyancer who contravenes subsection (1) is guilty of an offence and is liable to M200 and 4
years imprisonment and furthermore is guilty of unprofessional conduct and liable to be struck on the roll or suspended from practice.
(11) For the purposes of this section “Bank” means a commercial bank or other banking institution designated by the Chief Justice by notice in the Gazette as a bank for the purposes of this section.
28. (1) A practising attorney, notary or conveyancer or firm of practising attorneys, notaries or conveyancers (hereinafter in this section referred to as “the attorney") shall on or before the 30th September in each year or at such other times as the Law Society may require furnish a certificate by an auditor approved by the Law Society. Such auditor shall be appointed by the attorney at his expense. The certificate shall state —
(a) whether or not he has carried out an audit or has merely made an examination in terms of this section;
(b) whether or not he is satisfied by an examination, to the extent that he considered necessary, of the books of account, bank statements and a system of bookkeeping employed by the attorney concerned for the period of 12 months (or for such lesser period as the attorney has been practising) terminating at the date to be specified in the certificate, that —
(i) the attorney has kept for the period under review and is keeping proper books in such manner as to
enable him to comply with the provisions of this Act;
(ii) moneys received by such attorney on account of any person were deposited regularly and promptly in the trust banking account kept by that attorney in terms of this Act;
(c) the date to which such books appear to have been written up and the date to which it appears that they were last balanced and whether or not it appears that the attorney during the period specified in paragraph (b) complied with subsection (5);
(d) he has compared the list of balances shown on trust account in the ledgers of the said attorney, at the closing date of the period covered as specified in paragraph (b) and also at least one other date during the said period to be selected by him, with the respective ledger accounts;
(e) whether or not on each of the dates referred to in para-
graph (b) the total of the balances standing to the credit of the trust banking account kept by the attorney in terms of this Act together with the trust monies which were according to these books of account, held by that attorney in cash or hand (which monies he has satisfied himself were deposited in the said trust banking account on the first banking day following the date on which it
might reasonably be expected that such monies would be banked) was sufficient to cover all amounts which according to the books of account were on those dates due to the trust creditors of that attorney and agreed exactly or was in excess of the total of that last-mentioned amounts;
(f) he has made an examination of the trust bank statement of that attorney for a period of a week, or such longer period as he considers necessary in any particular case, following the date and that examination did not reveal that any negotiable instruments deposited in the said trust banking account had not been met except in circumstances which appeared to him to be satisfactory.
(2) The certificate to be furnished in terms of this section shall be sent by the auditor to the Law Society within 6 months of the annual dosing of the books of the attorney concerned or within such other period as the Law Society may require and a copy thereof and of any report made in terms of subsection (4) shall be sent by the auditor to the attorney concerned.
(3) In a case where the Law Society is satisfied that it is not practicable to obtain the services of an auditor approved as aforesaid for the issuing of such a certificate it may in lieu thereof accept such other evidence of the requirements set out in subsection
(1) as it may consider appropriate.
(4) An auditor who has made or commenced an examination in terms of this section shall without delay report to the Law Society on the following matters —
(a) the fact that it has come to his notice (if such be the case) that at any date the total of the balances shown on trust account in the ledgers of the attorney exceeded the amount of the funds available in the trust banking account kept by that attorney together with any trust monies held by that attorney in cash or hand according to the books of account;
(b) the fact that it has come to his notice (if such be the case) that any trust account in the ledger of the attorney is in debit;
(c) the tenor of any material queries concerning the books or entries which he has raised with the attorney and which have not been dealt with to his satisfaction.
(5) A practising attorney shall extract a list of his trust account balances at intervals of not more than three calendar months and shall keep the lists of balances for not less than 3 years from the dates on which such balances were extracted.
(6) An attorney, notary or conveyancer who has failed to furnish the certificate within the time specified in subsection (1) shall cease to act or practise as such attorney, notary or conveyancer and shall not again act or practise as such until an auditor appointed by the Law Society shall have carried out a full audit of
his books and reported on them to the Law Society and is satisfied all trust moneys are properly accounted for.
(7) An attorney, notary or conveyancer who contravenes subsection (1) or acts or practises as such attorney, notary or conveyancer in contravention of subsection (6) is guilty of an offence and liable to a fine of two thousand maloti (M2000) or 2 years imprisonment and is further guilty of unprofessional conduct and liable to be struck off the roll or suspended from practice.
29. (1) A notary shall keep a protocol containing a chronologically arranged and consecutively numbered file of the minutes of all deeds passed before him and a register in the form set out in Part II of the Schedule which shall contain an entry in chronological order of every deed passed before him. Such entry shall be made by the notary when the deed is passed before him, and he shall subscribe thereto a declaration in the form set out in the said Schedule. The word "deed” in this section shall not be construed so as to include —
(a) any certificate by a notary public to the effect that —
(i) a document was signed before him;
(ii) the meaning of a document or part thereof was explained to the parties thereto;
(iii) a copy of writing was compared by him with the original and is correct; and
(b) a notarial act or certificate of noting, presentation or protest of a bill of exchange or promisory note.
(2) A notary shall neatly and securely, to the satisfaction of the examiner of protocols (hereinafter in this section referred to as “the examiner”), cause all minutes of deeds passed before him, together with an index of those minutes to be bound in chronological order and numbered consecutively in volume of equal and convenient size.
(3) A notary shall not alter or mutilate any minutes filed in his protocol or extract therefrom, save in so far as may be required by any law or practice in force.
(4) The minutes of deeds passed before a notary shall be written, typed, or printed on good, strong, and durable paper of foolscap size, in good and durable ink and to the satisfaction of the examiner. No carbon copies shall be filed in the protocols.
(5) A notary is obliged to keep his protocol in safe custody under lock and key, and, whenever possible, in a fire-proof safe so as also to guard against a violation of the secrecy of its contents or against any alteration or mutilation thereto or any extraction therefrom, and shall take such other reasonable precautions, for the safe custody thereof as may be necessary.
(6) A notary commencing or recommencing practice shall within one month thereafter, give a written notice to the examiner of his full name and business address and a notary who chan
ges his address shall, within one month thereafter, give notice thereof with full particulars of the new address.
(7) A notary shall, if he leaves Lesotho with the intention to cease practice or if he be removed from the roll or suspended or otherwise retires from practice and his executor or other representatives shall, in the event of his death, lodge his protocol with the Registrar or as may otherwise be required by law, when a notary has so ceased, or otherwise retired from practice, he, his executor or other representative shall notify the examiner. In the event of a notary having ceased to practise or having no protocol at the time fixed for the examination thereof he shall deliver to the examiner of protocols a certificate to that effect.
(8) The examiner shall ensure that the protocol of a notary who dies or retires from practice shall on death or retirement (as the case may be) be lodged with the Registrar or otherwise dealt with as may be required by any other law in force.
(9) The Registrar-General of Lesotho or such other person as may be appointed by the Minister by name or office shall be the examiner of the protocols of notaries practising in Lesotho and shall personally make the examination required.
(10) The examiner shall, during each calendar year, examine the protocol of every notary who shall submit his protocol for such examination when so required.
(11) The examiner shall, at the conclusion of each examination, endorse a certificate on the notary’s register and record his examination, and if all the minutes filed therein are correctly and properly stamped in accordance with law he shall certify to that effect, but if a minute therein liable to stamp duty be found unstamped or insufficiently stamped he shall forthwith take the necessary steps in accordance with the law to have such minutes stamped and shall certify accordingly on such minutes.
(12) The knowledge obtained by the examiner in the course of an examination shall be regarded by him as information confidentially acquired in the course of his official duty and shall be treated by him accordingly.
(13) The examiner shall, on finding any material or serious omissions or defects in any protocol examined by him, or the minutes therein contained or any breach of duty or non-compliance with this Act on the part of a notary, record the same and particulars thereof in the certificate aforesaid, and shall immediately report the same to the Law Society;
(14) The examiner shall keep a register showing —
(a) the names of the notaries whose protocols are subject to his examination;
(b) the date of each examination made;
(c) the number of the deeds examined;
(d) copies of the certificates endorsed by him on examined protocols,
and in January each year shall render a return of the same exa
mination carried out in the previous year and certify to the Permanent Secretary for Finance that such examination has been completed and that all liability for stamp duty has been discharged in respect of the documents examined by him.
30. A legal practitioner is guilty of professional misconduct and liable to a fine, suspension or to be struck off the roll if —
(a) he fails to deposit any trust moneys with the bank within 72 hours after he received them;
(b) he charges fees lower than those fixed by this or any other law;
(c) he assists, enables or allows an unqualified person to do work or charge fees for work which only a legal practitioner is qualified to do;
(d) he opens, operates or maintains an office which is not in the normal course of business under his direct and personal supervision;
(e) he keeps his accounts as a legal practitioner jointly with other accounts not belonging to his law practice;
(f) he remunerates an employee or a person not being a legal practitioner either by way of shares or otherwise from the profits of his law practice;
(g) he tenders for or offers in response to an advertisement, circular or similar imitation directly or indirectly, to perform the work or business not offered to him;
(h) he assists an unqualified person to recover charges for services rendered by him or by including the same in the
bill of costs or memorandum of charges rendered by him as a legal practitioner without disclosing the facts in the bill or memorandum;
(i) he practises his profession in offices of which he or his firm is not the sole lessee or he occupies offices which have inter-communication with an office occupied by a person other than a legal practitioner;
(j) he practises his profession without disclosing in his letterheads the names of other partners;
(k) he discloses in his business letterheads the name of a legal practitioner employed by him or his firm without indicating by the use of the words “assisted by” immediately before or the words “professional assistant” immediately after the name of that other legal practioner;
(1) he practises under different firm names for different offices;
(m) he fails to keep and maintain proper books of accounts to the satisfaction of the Law Society;
(n) he falls to pay within reasonable time the fees or disbursements to a legal practitioner asked to do legal work for him;
(o) he neglects or refuses to reply to correspondence in
connection with matters entrusted to him;
(p) he neglects or refuses to reply to letters written to him
by the Law Society;
(q) he touts or solicits for business as a legal practitioner;
For the purposes of paragraph (q) “touting” includes — =
(i) accepting or agreeing to accept or offering to accept remuneration for professional work at less than the rate or scale of charges fixed by this or any other law;
(ii) displaying on notice boards or letterheads the qualifications which he does not have;
(iii) advertising his law business or practice as a result of which the public is likely to entrust professional work to him;
(iv) procuring or allowing his name or that of his firm to appear or be heard in the advertisement or announcement by another person;
(v) inserting his name or allowing his name to be inserted in a directory which is not open to other legal practitioners;
(vi) inserting or allowing his name to be inserted in a telephone or other directory or law list in type likely to give it prominence;
(vii) publishing under or over his name in the lay press, any articles on legal subjects, or lecturing or broadcasting to a lay audience any legal subject without the approval of the Law Society.
(r) Notwithstanding anything contained in paragraph (q) a
legal practitioner shall not be guilty of touting if he —
(i) affixes to or paints on doors or windows of his offices or premises the usual office signs, qualifications and address with the lettering not exceeding 6 inches in height;
(ii) when acting for a client inserts in the Government Gazette or other necessary newspaper any advertisement required by law and indicates therein that he is acting for that client.
31. (1) No person, other than a legal practitioner, shall practise as such within Lesotho or in any manner hold himself out as or pretend to be, or make use of any words or any name, title, or addition or description implying or tending to give an impression that he is an advocate, attorney, notary or conveyancer or is recognised by law as such.
(2) No person shall orally or by means of any written or printed matter or in any manner whatsoever, directly or indirectly
either for himself or for any other person, advertise, solicit business, tout, or make known his preparedness, or that of the other person, to undertake any legal work normally performed by legal practitioner whether for or without remuneration.
(3) An advocate, attorney, notary public or conveyancer who has been struck off the roll or suspended from practice shall not while he is struck off or suspended, continue to practise as an advocate, attorney, notary public or conveyancer directly or indirectly by himself or in partnership or association with any other person.
(4) An attorney, notary public or conveyancer shall not except with the prior written consent of the Law Society, employ a person who has been struck off the roll or suspended from practice while that person is struck off or suspended.
(5). An attorney, notary public or conveyancer shall not make over, share or divide with any person other than a practising attorney, notary public or conveyancer either by way of partnership, commission or allowance or in other manner, any portion whatsoever of his professional fees-
(6) A person who contravenes this section is guilty of an offence and is liable to a fine of M500 for each offence; except that it shall not be considered to be a contravention of subsection (2) if —
(a) a board of executors, or trust company (not being a private company within the meaning of the law relating to companies) —
(i) has in its name or title words indicating that its objects or functions include work in connexion with the administration, liquidation or distribution of any estate mentioned in subsection (2);
(ii) on signboards, nameplates, or notices exhibited on the premises in which it carries on business or on its stationery or on its usual annual almanacs or in any advertisements in the public press, or in its annual reports or any report of the proceedings at an annual general meeting, made known by a simple statement to that effect that its objects or functions include any such work;
(b) any person in reply to a direct inquiry voluntarily made of him by someone else makes known the preparedness of himself or some other person to perform any such work;
(c) any shareholder or employee of a board of executors or trust company described in paragraph (a) canvasses another shareholder or employee of the same board or company;
(d) an attorney, notary public or conveyancer or any commercial banking institution or any such board of executors or trust company indicates in any public notice required by law in connexion with the liquidation or ad-
ministration of any estate that he or it does any such
(e) a legal practitioner indicates in such form as may have received the prior approval of the Law Society or any nameplate or sign-board exhibited in or on the premises in which he practises or on any of his stationery or professional documents that he does any such work.
(7j A legal practitioner who contravenes subsection (2),
(4) or (5) is guilty of unprofessional conduct and is, in addition to the liability imposed by subsection (6), liable to be struck off the roll or suspended from practice.
(8) Save as provided in subsection (9), a person, not being a legal practitioner, who for or in expectation of any fee, gain or reward, direct or indirect, to himself or any other person —
(a) draws or prepares or causes to be drawn or prepared any of the following documents —
(i) a contract, deed or instrument relating to land or immovable property or to any right in or to land or immovable property other than conditions of sale or brokers notes;
(ii) a will or other testamentary instrument;
(iii) a memorandum or articles of association or prospectus of a company;
(iv) a contract deed or instrument relating to or required or intended for use in an action, suit or other proceedings in a court of civil jurisdiction within Lesotho;
(b) acts as an intermediary or agent for a person in a claim upon an insurance company or in any claim under the Workman’s Compensation Act 1977 or any law whereby a. damages are or may be payable to that person as a consequence of injury or damage to the person or property,
is guilty of an offence and is liable in respect of each offence to a fine of M1000 or to imprisonment for 4 years.
The words “fee, gain or reward”, direct or indirect do not include or apply to —
(i) the salary or emoluments of an employee if no fee, gain or reward is sought or obtained by his employer from the person on whose behalf the document was drawn or prepared; or
(ii) a commission or other remuneration to which a person is or may be entitled to either by law or otherwise for services in his capacity as executor, ad- ministrator, trustee, curator, tutor, or guardian by virtue of his appointment as such by a Court of law or under a will or other testamentary instrument or as agent for any person holding such appointment.
(9) Subsection (8) shall not apply to —
(a) a person in the employ of a practising attorney, notary or conveyancer drawing or preparing or causing to be drawn or prepared any of those documents in the course of his employment and on behalf of his employer,
(b) a person in the service of the Government drawing or preparing or causing to be drawn or prepared any of those documents in the course of his duty;
(c) a trustee under the laws relating to insolvency or an executor, administrator or curator or a liquidator of a company drawing or preparing any such document in the course of his statutory duties and receiving such fees as may be allowed by law;
(d) a practising advocate in so far as he would be entitled, but for the passing of this Act to draw or prepare any of those documents in the ordinary course of his profession.
32. An advocate engaged in practice shall not appear in a court in Lesotho, unless, in addition to the other requirements of this Act or any other law, he has been instructed so to appear by the First Law Officer of the Crown or an officer delegated by him or by a practising attorney engaged in full-time practice in Lesotho.
. 33. An attorney, notary public or conveyancer engaged in practice outside Lesotho shall not practise as such in Lesotho unless, in addition to the other requirements of this Act or any other law, he has an office in Lesotho and that office is manned full-time by a practising attorney, notary or conveyancer, as the case may be, engaged in full-time practice in Lesotho. The Law Society may, however, relax this requirement with the consent of the First Law Officer of the Crown.
34. In addition to any other penalty under this Act, an advocate who appears in a Lesotho court contrary to section 32 and an attorney, notary public or conveyancer who practises as such contrary to section 33 is guilty of an offence and liable to a fine of M5,000.
35. (1) Where a client or a member of public has a complaint against a legal practitioner, for dishonourable, unworthy, unprofessional conduct or otherwise on the part of a legal practitioner, he shall lodge the complaint with the Secretary of the Law Society who shall submit it to the Council.
(2) The Council, on receiving a complaint under this Act, may require the complainant to file an affidavit setting out the facts of his complaint whereupon the Council may hear and determine the matter or pass it on to enquiries committee established by it to investigate, consider and determine the matter.
(3) The enquiries committee may call the legal practitioner against whom a complaint has been made to appear before it and answer the complaints verbally or by affidavit.
(4) The findings of the enquiries committee shall be com
municated by the Council to both the complainant and the legal
practitioner against whom the complaint was made.
(5) If it appears to the Council that further investigations are necessary on the complaint laid against a legal practitioner it may order that further investigations be made to enable the Council to consider and determine the case.
(6) The Council may consider and determine complaints submitted to it by individuals or set up such committees, whether permanent and may in that instrument of appointment delegate such powers as they may consider appropriate to enable the committee to carry out its mandate-
(7) Where the Council has referred the matter to the committee referred to in subsection (5), it shall inform the complainant and the legal practitioner against whom the complainant has been made, of the time and place of the hearing including such other documents or things as may be specified in the notice and that notice shall set out the specific charge of misconduct; or unworthy or dishonourable conduct alleged to have been comit- ted by the legal practitioner.
(8) The enquiries committee shall at the time appointed proceed with the investigations and take evidence viva voce on oath, and shall reduce to writing the viva voce statement made and evidence given by the parties and submit the whole record with its findings to the Council to take the steps it finds suitable- able.
(9) The parties to the disciplinary proceedings may avail themselves of legal representation.
(10) The statements of witnesses shall be read over to them after they gave them orally and then the witnesses shall sign those statements. The statements on the investigations may be taken down by a stenographer who may be asked to take an oath that she shall truly and faithfully record the evidence.
(11) The Council or Committee may issue subpoena against any person to give evidence or to produce documents which may be thought necessary for a proper determination of the case.
(12) Where a legal practitioner is found guilty of misconduct by the Council or its committee it may impose such penalty as it considers appropriate or it may apply to the Court to impose a punishment prayed for by the Council.
36. (1) The High Court may, for any reasonable cause shown order the suspension or removal of any legal practitioner from the roll.
(2) A complaint of professional misconduct against a legal practitioner may be referred to the Law Society by any person and the Law Society may take such action thereon as it shall consider appropriate.
(3) An application to suspend or remove a legal practitioner from the roll may be made by the Law Society by way of
motion to the High Court supported by affidavit or affidavits as to the facts on which the application is based.
• The High Court may order that any question of fact shall be tried by pleadings and proof or otherwise as the Court may consider appropriate.
(4) No costs shall, in such application, be awarded against the Law Society unless the High Court is satisfied that the Law Society has acted mala fide or unreasonably in bringing the application.
(5) The Law Society and the examiner of protocols shall not be subject or liable to any action or proceedings for damages on the ground of defamation in the bona fide execution of their duties and the taking of any steps under this Act or the institution of any proceedings under or purporting to be under this Act.
37. (1) A legal practitioner aggrived by a decision of the Law Society may appeal to the High Court against such decision.
(2) Upon an appeal the High Court may —
(a) uphold or confirm the decision;
(b) review the punishment imposed;
(c) make such other order, including an order for the suspension or removal of the appellant from the roll, as it considers appropriate,
(3) An appeal under subsection (1) shall be lodged within 14 days of the date of the decision appealed against and the procedure shall, subject to the directions of the High Court, follow as closely as possible the procedure for criminal appeals from a Subordinate Court to the High Court
38. A fit and proper person who possesses the qualifications prescribed in this Act may apply to the High Court upon written petition to be admitted and enrolled as a legal practitioner of the court of Lesotho after serving a copy of such petition upon the Law Society as provided by section 40 (1).
39. A person who applies to the High Court to be admitted and enrolled as a legal practitioner shall, in addition to such further information as the Law Society may require, furnish it with satisfactory proof from his Law Society that no complaint against him is pending before such Law Society.
40. (1) A copy of every petition for admission as a legal practitioner, together with copies of all affidavits, certificates and other documents or papers which are therein referred to or therewith connected, shall be served upon the Law Society not less than 14 days before the hearing of the petition and the service may be
effected personally or by registered post or by transmitting a copy to the Law Society through the Registrar.
(2) Upon production to the Law Society of the petition and affidavits, certificates and other documents or papers, and certificates from the Registrar that the fees prescribed in section 43
(1) (f) have been paid, the Law Society shall advise the Registrar and the petitioner whether this section has been complied with and also whether it has any objection to the applicant being admitted upon the petition, affidavits, certificates and other documents or papers submitted to the court
(3) Pending his obtaining the advice of the Law Society in terms of subsection (2), it shall not be competent for such person to move the High Court for his admission and the High Court shall not admit him.
41. (1) The Registrar and the Law Society shall keep an identical roll of legal practitioners admitted to practise in terms of this Act and every person so admitted shall pay the prescribed fee for a certificate of admission on enrolment under the hand of the Registrar in the form prescribed under section 43 (3) (c).
(2) Such roll shall be in the form of separate alphabetical lists, recording the names of advocates, attorneys, notaries public and conveyancers respectively admitted to practise under this Act or any prior law with the dates of the admission and the addresses of the legal practitioners.
(3) Whenever the High Court makes an order striking off the roll or suspending from practice any legal practitioner or on the application of any legal practitioner, removing his name from the roll, the Registrar and the Law. Society shall forthwith enter on the roll kept by them a note or minute of the order opposite the name of the legal practitioner concerned.
42. (1) Subject to this Act legal practitioners whether entitled to practise as such at the commencement of this Act or admitted and enrolled in terms of this Act shall have a right of audience in the Courts of Lesotho.
(2) Notwithstanding the restrictions in this Act or any other law the legal practitioners employed by Statutory Corporations may appear before the Courts of Lesotho, not being the Central or Local Courts, on behalf of and on the instructions of their employers.
(3) An attorney who is an employee of a Statutory Corporation shall not be required to keep trust account or to hold a practising certificate but he shall not do any legal work, as a legal practitioner for other clients except for his employer.
(4) An advocate who is employed by a statutory corporation may appear before the courts of Lesotho not being Central or Local Court, on behalf of his employer and may, notwithstanding section 6 (2), take instructions direct from his employer-
(5) A notary public or conveyancer, employed by a statutory corporation may notwithstanding that he is not practising as such under the Deeds Registry Act 1967, prepare and register notarial and conveyancing documents on behalf of the corporation by which he is employed.
43. (1) The Chief Justice may, by notice in the Gazette, prescribe a scale of fees which shall be paid to the Registrar in respect of the following matters —
(a) registration of articles of clerkship and cession of articles of clerkship;
(b) admission as advocate, attorney, notary public and conveyancer;
(c) enrolment as an advocate, attorney, notary public and conveyancer;
(d) re-admission as an advocate, attorney, notary public or
(e) re-enrolment as an advocate, attorney, notary public or conveyancer;
(f) perusal by the Law Society of articles of clerkship, deeds of cession of articles of clerkship, petitions for admission as advocate, attorney, notary public or conveyancer or for carrying out any of the other duties imposed by the Law Society by this Act;
(g) certificates of admission and enrolment; and
(h) bar practical examinations to be written under this Act.
(2) The Chief Justice may after consultation with the Law Society, by notice in the Gazette, make regulations for the purpose of determining and prescribing —
(a) the degrees (not being honorary degrees) which shall be approved for the purposes of section 10 (b) (ii);
(b) what examination or examinations any person referred to in section 8 (c) (iii) shall be required to pass before being admitted and enrolled as an attorney under this Act;
(c) the examination which an articled clerk is required to
pass before being entitled to receive a salary in terms of paragraph (a) of the proviso to section 20;
(d) the rights, duties and powers of a curator bonis appointed under section 25 (4) (b);
(e) the countries or territories which shall be approved for the purposes of section 22 and the examinations to be passed by those persons before they are admitted;
(f) the bar practical examinations to be written by persons required to do so under this Act.
(3) The Chief Justice may make rules of court prescribing—
(a) the fees of certificate and orders required to be given or produced under this Act;
(b) the nature and form of the oath or oaths, affirmation or affirmations which shall be taken before admission and enrolment;
(c) the fees payable on petitions, affidavits, certificates or documents used or required in connection with any application under this Act;
(d) the form of certificates and orders required to be given or produced under this Act, and
(e) generally for carrying the purposes or provisions of this Act into effect
(4) The Chief Justice may, after consultation with the Law Society appoint a board of examiners for the purposes of conducting examinations in the knowledge of —
(a) the practice and procedure of the different courts of Lesotho, such practical book-keeping as may be necessary for the keeping of books of accounts and the conduct and duties of the profession;
(b) the practice, function and duties of a notary;
(c) the law, practice and procedure of conveyancing and may prescribe what fees shall be paid by the candidates taking those examinations and what remuneration the examiners are to receive for examining the candidates; and
(d) the lav/, practice and procedure of advocacy.
44. The Law Society may make regulations —
(a) prescribing additional conduct which shall be considered to be unworthy, unprofessional or dishonourable conduct by a legal practitioner;
(b) prescribing the procedure to be followed at or in connection with its investigations into complaints under this Act.
45. The Legal Practitioners Act 1967 is repealed-
SCHEDULE (Section 9)
Provisions with respect to the length of term of Articled Service
1. In the case of a person who has satisfied all the requirements for a degree referred to in section 10 (b) (ii) the term shall be 3 years.
2. In the case of a person who has passed Bachelor of Laws degree of the National University of Lesotho or the Bachelor
of Laws degree stipulated in section 6 (i) (ill) the term shall be 2 years.
3. In the case of any other person, the term shall be five years-
4. The period of service under articles which the clerk is required to serve shall be determined by the qualifications passed by the clerk at the time the articles are entered into.
NO. OF DATE OF NATURE IN VALUE VALUE
DEED EXECU- OF WHOSE OF OF
TION DESCRIP- CON SIDE- STAMPS STAMPS
TION RATION ON ON
I declare the above to be the only deeds passed before me as
Notary during the period from______________
to----- (or since my admission)
This protocol register was examined by me and compared
with the minutes and was found (______
______________ remark__________________ )
EXAMINER OF PROTOCOLS