In a move that will see many law firms advertising their services to the public through many different platforms, Judge Mercy Garekwe of the Lobatse High Court agreed that the subsections of the act barring advertising were unconstitutional.
Justice Garekwe agreed with the applicant attorney, Osego Garebamono that Section 52 (1) (b) (c) and (d) of the Act be struck down and that the LSB amend it within six months of the order.
Garebamono had taken the matter to court after he realised that he was not allowed to advertise when he wanted to set up his law firm last year.
He was aggrieved by the legal provisions that barred him as a legal practitioner from advertising saying such provisions were unlawful and unconstitutional on the grounds that they infringe on his constitutional right of freedom of expression and that the prohibition had fallen into disuse and serves no purpose in the society.
Justice Garekwe when delivering the judgement said holding onto the prohibition when most liberal democracies have moved away from the same was a sign that such prohibition had fallen into disuse.
“We cannot judge ourselves by us, but have to consider and judge ourselves by consideration of the standards of others.
“South Africa from whom we copy and borrow a number of things has no blanket ban on advertising a clear indication that prohibition has fallen into disuse,” she said.
The application was opposed by the Attorney General and Ministry of Defence, Justice and Security. Garekwe labelled their opposition as clear proof that Botswana was lagging behind as a country and resistant to the winds of change.
The judge explained that there seemed to be a belief by the resistant respondents that advertising is generally bad and further that it only inures to the benefit of the attorneys who then will seek to abuse the platform.
“If there is recognition by the respondents that social
media platforms have become increasingly popular, they should in turn recognise the benefit that general public derives from usage of social media platforms and to access all sorts of information from there,” she explained.
He said it was absurd for the respondents to seek to differentiate Botswana from other countries, which have embraced regulated advertising by contending that the country’s socio-economic factors are different from those of other countries.
Garekwe noted that the respondents’ contention that constitutional provisions on protection of fundamental rights are not word for word with those of the other jurisdictions was only trivialising the importance of fundamental rights and freedoms.
She explained that the prohibition was therefore arbitrary, unfair and based on irrational considerations particularly when one considers that it has always been open to the respondents to lift the prohibition and allow advertising by legal practitioners in the country.
“No reason has been proffered as to why the respondents have never sought to do so. I therefore agree with the applicant’s contention on this issue that the prohibition is draconian and not reasonably justifiable in a democratic society,” she said.
Garekwe said she had struggled to appreciate the contention by respondents that prohibition was premised on the protection of the public from receiving inaccurate and misleading information regarding legal services.
On account that respondents have not indicated how the applicant if allowed to advertise would provide inaccurate and misleading information on provision of legal services to the public and that they have not ventured to giving possible examples, which they could have easily solicited from jurisdictions around the country that allow for regulated advertising.
“Applicant is not calling for blanket advertising, but taking cue from other progressive jurisdictions on the issue, is calling for regulated advertising, which will address the ills that the respondents seek to justify the prohibition on though unjustified.”