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UNIVERSITY OF BOTSWANA

DEPARTMENT OF LAW

END OF SEMESTER ONE EXAMINATIONS 2015/2016

FRONT PAGE

___________________________________________________________________
COURSE NO: LAW433 DURATION: 1½ HRS DATE: NOV. 2015

TITLE OF PAPER: CLINICAL LEGAL EDUCATION I

SUBJECT: LAW

TIME OF EXAMINATION: ___________________________

MORNING/AFTERNOON

INSTRUCTIONS:

1. THERE ARE FOUR QUESTIONS.

2. ANSWER QUESTION ONE AND ANY OTHER QUESTION.

3. CREDIT WILL BE GIVEN FOR:

a) Effective arrangement and presentation;
b) Clarity of explanations;
c) Effective use of relevant authorities;
d) Logical argument;
e) Clear and concise English.

DO NOT TURN OVER THIS PAGE UNTIL YOU HAVE

BEEN TOLD TO DO SO BY THE SUPERVISOR
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Question One (Compulsory)

KBL Construction (KBLC) has entered into a contract with BMG for the supply of
building material worth P300 000 on 13th March 2015. The duration of the
contract was three months. The parties’ contract has an arbitration clause that
states that; ‘All disputes arising out of the contract shall be referred to arbitration
comprising a panel of three professionals being, a legal practitioner, chartered
accountant and a civil engineer. The seat of the arbitration shall be Gaborone.’

On 13th April 2015, BMG, after supplying building materials worth P150 000.00,
advised that it shall stop any further supplies pending payment for the materials it
had already supplied. KBLC in response advised that the agreement did not make
provision for payments before the expiry of the duration of the contract, being
three months.

After protracted legal proceedings, the parties finally had the matter referred to
arbitration before a panel comprising of a legal practitioner, a construction
engineer and an accountant.

Upon submissions and deliberations the panel of arbitrators held in favour of

BMG, that under good business practice, the supplier ought to have been paid per
delivery.

Soon after the award has been made, KBLC receives information that the legal
practitioner who formed part of the panel, has shares in BMG and that the
construction engineer is engaged by BMG to refurbish their warehouse.

a) Advise the parties on the legality of taking the matter to Court prior to
Arbitration on the issues covered by the arbitration clause. [15 Marks]

b) Advise KBLC of the cause of action it may adopt post the arbitration process
in the light of the two arbitrator’s connection with BMG.
[15 marks]
[Total: 30 marks]
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Question Two

Peter Mzara completed his Degree of Bachelor of Laws from the University of
Botswana in November 2001. He was admitted and enrolled as a legal
practitioner in November 2001. On 24th November 2009 Peter was convicted of
the offence of obtaining by false pretences and given an 18 months prison
sentence which was wholly suspended. He was subsequently struck off the roll of
legal practitioners.

He has been involved in a programme of reintegrating former prison inmates into

the community and their rehabilitation. The victims to his criminal acts have also
benefitted through a Trust that he established though he is not a Trustee. He has
joined Fire Ministries where he is currently a Deacon. His contributions to the
society have caught the eye of the President who has conferred on him a
Presidential Meritorious Good Service Honour during the independence
ceremony.

Peter has filed a petition for re-admission and re-enrolment as an attorney in

terms of the Legal Practitioners Act.

Draft Heads of Argument in support of Peter’s re-admission and re-enrolment;

[Total: 20 marks]

Question Three

Mr Gupta Hayatu, a prominent farmer in the Central District of Botswana, has had
his crops destroyed and or damaged by a pesticide supplied and applied by the
Department of Crop Production under the Ministry of Agriculture. Upon
independent investigations carried out by Offshore Laboratories, it was found
that at the time that the pesticide was applied, it had already expired. It was
found further that the ratio used for the mixture of the pesticide was not in
accordance with the manufacturer’s directions.

Mr Hayatu is desirous of seeking legal recourse on the matter. The first step he
takes is to call your office and arrange for an interview or initial consultation.
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Discuss the interviewing techniques available to you for this interview.

[10 marks]
Advice Mr Hayatu on the procedures of suing the Government in Botswana and
briefly describe the documents that you will file in this matter.
[10 marks]
[Total: 20 marks]

Question Four

Mr Attorney Veer has set up a Law Firm in Gaborone, and is the sole proprietor in
the firm. His friend, Ancilloti, is a practitioner practising in Francistown, and is also
a sole proprietor. In an effort to avoid travelling to Francistown to execute client’s
instructions there, Mr Veer always engages Ancilloti to do so. The arrangement
having worked for the law firms, they decide to enter into an agreement of
associate law firms, such that all cases in Francistown are attended to by Mr
Ancilloti and all cases in Gaborone are attended to by Mr Veer. The relationship
has grown and blossomed to an extent that for all matters the two firms handle,
the power of attorney reflects the two attorneys’ names.

Boor Enterprises (Pty) Ltd approached Mr Veer for assistance to recover a motor
vehicle that has been impounded by the Botswana Unified Revenue Services
(BURS). Mr Veer prepared an urgent application for the matter with the
assistance of Mr Ancilloti. After service of the papers, BURS decided to approach
Mr Ancilloti for assistance. Mr Ancilloti accepted the instructions and filed
opposing papers.

On the day of the hearing, the two attorneys meet outside Court and decide that
the matter must be settled out of Court. They proceeded to present, without their
clients’ input, a settlement agreement to the Court which was subsequently made
an Order of Court.

Write an opinion on the propriety of the two attorneys’ conduct.

[20 marks]
[Total 20 marks]

END OF QUESTION PAPER