There was a twist in an ongoing case before Justice Christian Diwanga at the Francistown Industrial Court where Collete Masitara is suing First National Bank for unfair dismissal.
The matter, which was set for a three-day trial from Tuesday till Thursday, had to be rescheduled for roll call on 5th December after the applicant asked the court for postponement.
The applicant, who is the daughter of former Member of Parliament and businessman Robert Masitara, approached the bench on Tuesday with a letter penned by Doreen Khama, her new lawyer in replace of Nkiwana Ndaba of Ndaba and Associates.
In the letter, Khama explained that she accepted the mandate to represent Collete and apologised for her absence in court due to other engagements in Lobatse, hence the verbal application for postponement of the trial.
Perhaps in an attempt to weigh in on his daughter’s submission, Masitara rolled back the years to his parliamentary days and asked to speak.
“Have you found a new lawyer,” asked the bemused Justice Diwanga as the former legislator stood up to address the bench.
“No Your Worship, she is my daughter and I just wanted to add on what she just said,” the former Botswana Democratic Party (BDP) politician replied sheepishly.
Masitara caused a stir when he told court that they had to part ways with Ndaba, intimating there was bad blood between Ndaba and Diwange, which could work against his daughter.
“We also learnt that he was not a lawyer, but a consultant,” added the former Gaborone West-North MP.
This explanation did not sit well with the defence lawyer Virgil Vergeer of Collins and Newman, who argued the applicant was flouting court rules by manufacturing a postponement.
He said procedure dictates that Khama should have brought a notice of motion with supporting affidavits instead of sending her client to verbally notice the bench.
He said Masitara fired Ndaba and appointed Khama on Friday in full knowledge that the trial was scheduled to start on Tuesday but without knowing whether the new lawyer would be available.
“Doreen Khama should have come to court to apply for postponement. Why did she accept the mandate when she knew she’d not be available?” fired Vergeer adding that double booking of lawyers is not a good enough reason to postpone matters before court.
He told court that the defence team was ready to proceed and had brought witnesses, further praying that should the court decide to postpone the matter, travel and accommodation cost incurred by defence be awarded to the applicant.
“Not only are we dealing with a wholesome non-compliance with the rules, but we also have a letter from Khama addressed to the Clerk lecturing on what this court should do,” he said.
“The disrespect shown by the applicant and her lawyer should not be entertained,” he added angrily.
In his ruling Justice Diwanga said the applicant contravened the rule stating that matters set for trial cannot be postponed seven days before day of court.
He said the applicant’s argument that she’d be disadvantaged by being represented by her previous lawyer while the respondent had a senior counsel was invalid as she had time to change her legal representation.
Despite this, Diwanga acknowledged that the applicant has the right to get the legal representation she wants and granted her the postponement she applied for.
It was however an expensive victory for the young Masitara as she was also ordered to pay defence’s travel and accommodation costs.