Sehapi seeks King’s Counsel (KC) status

Moorosi Tsiane

PROMINENT lawyer, Advocate (Adv) Fusi Sehapi, has launched an unprecedented bid to be elevated to the higher silk status in legal practice dubbed King’s Counsel (KC) in Lesotho.  Its equivalent in South Africa is Senior Counsel (SC).

Advocate Sehapi has asked Chief Justice Sakoane Sakoane to grant him the coveted silk two years before the prescribed qualifying period of 15 years

Adv Sehapi argues that his extensive constitutional litigation record and distinguished service to the legal profession justify an exemption from the 15-year minimum practice requirement for KC designation.

In a detailed application submitted to the Chief Justice, Adv Sehapi says his 13 years in practice have produced achievements well beyond what is ordinarily expected of a practitioner with his level of experience.

He argues that his contributions to constitutional jurisprudence, public interest litigation and the development of cross-border legal practice warrant special consideration.

“Without necessarily labelling myself as a perfect and blameless being in the legal profession, I have rendered distinguished services in the courts of Lesotho far ahead of the expiration of the fifteen-year minimum period,” Adv Sehapi states in his application.

He attributes his professional development to the mentorship of his mentor, Adv Zwelakhe Mda KC, coupled with hard work and dedication.

Adv Sehapi says he has established an unmatched record in constitutional litigation, having participated in more than 20 high-profile constitutional cases, many of which have shaped the country’s jurisprudence.

“To mention a few examples of my services in the courts of Lesotho, I hold the highest leading record, at least amongst my peers and even some seniors, of involvement in more than 20 high-profile constitutional cases,” he says.

According to Adv Sehapi, several of these cases have gone beyond the courtroom and have become influential in academic writings and legal scholarship.

He also claims to have advanced class action litigation in Lesotho even before such proceedings were formally recognised through the Tenth Amendment to the Constitution.

“I have influenced class action proceedings even before they were finally recognised in the Tenth Amendment to the Constitution,” he says.

Adv Sehapi further highlights his involvement in public interest litigation, saying he has consistently used the courts to challenge unconstitutional conduct by the state and protect the public interest.

He cites his role in Advocates for the Supremacy of the Constitution and Another v Lesotho Electricity Company and Others, in which he acted on a pro deo (free of charge) basis.

“I have the highest leading record of protecting the public via pro deo litigation and otherwise against unfair and unconstitutional state conduct,” he says.

Beyond litigation, Adv Sehapi says he has made significant contributions to the development of international legal practice and cross-border legal cooperation.

He says he has prepared and published free legal opinions on cross-border admission of lawyers and has assisted, on a pro deo basis, with research, drafting legal documents and facilitating the admission of six lawyers into cross-border legal practice.

In motivating his application, Adv Sehapi draws parallels between his upbringing and traditional Basotho concepts of leadership.

He recounts growing up as a shepherd in rural Mafeteng, saying early responsibility taught him leadership and discipline from a young age.

He argues that being conferred with silk at a relatively young age would not undermine existing King’s Counsel holders, as seniority would continue to determine precedence.

Instead, he says, recognising deserving younger practitioners would promote a culture of hard work and professionalism within the legal fraternity.

“Assuming the honour and dignity of Kings Counsel at the tender age does not equate me with my seniors who are already silk. They take precedence. It only entitles me to all their rights and privileges in the successive order of seniority from the highest silk to the lowest silk.”

“But achieving a virtuous status at a young age promotes the culture of hard work and professionalism to the occupants of the group who look up to their young leader of their own generation. As a result I pray humbly that I be recommended by the Law Society of Lesotho, be considered by the Honourable Chief Justice and ultimately be conferred with an honour and dignity of Kings Counsel by the King not necessarily for myself but even for those who look up to me as a leader of their group according to peer review mechanism of conferring silk.”

A significant portion of Adv Sehapi’s application criticises what he describes as historical shortcomings in the manner King’s Counsel honours have been conferred in Lesotho.

He argues that the modern constitutional order requires greater openness, transparency and equality in the selection process.

“The repositories of power must recognise and correct the injustices of the past ranging from secretive honours and discriminations meted out to those who were denied silk while deserving,” he states.

Adv Sehapi contends that Lesotho has historically lacked an annual and transparent application process for the conferment of silk, forcing advocates to wait passively for recognition under what he describes as opaque procedures.

“Some of the very good lawyers who are ornaments of our legal practice in this country e.g. Advocate Zwelakhe Mda KC, Advocate Ntlhoki KC and Advocate Sakoane KC (Chief Justice) were unfairly denied timely conferment of silk simply because they were subjectively, and not objectively considered unworthy by the Chief Justice of their day when they qualified from time immemorial.”

He also bases his application on developments in cross-border legal practice between Lesotho and South Africa.

Adv Sehapi argues that because South African Senior Counsel are recognised in Lesotho and exceptional practitioners in South Africa can receive silk before the normal qualifying period, similar flexibility should apply locally.

He cites the example of Acting Constitutional Court Justice Tembeka Ngcukaitobi SC, who was appointed Senior Counsel after seven years of practice instead of the usual ten.

“The fact that foreign advocates who are actually my peers and even juniors may be my seniors because they have been conferred silk in ten years or fewer unfairly subjects me to discriminatory cross-border legal practice,” he argues.

As a result, he has asked the Chief Justice to exercise equitable discretion and consider his application as a form of affirmative action for younger legal practitioners.

Adv Sehapi also makes an emotional appeal, saying the burden of constitutional litigation has taken a heavy personal and professional toll on him.

“I have gone through a lot as a practitioner and have experienced serious moments of trauma, weakness, doubt, despair and a call to quit,” he says.

He reveals that his mentor, Adv Mda KC, encouraged him to persevere during those difficult moments, even though he did not support the idea of applying for silk before the prescribed 15-year period.

Ultimately, Adv Sehapi asks the Chief Justice to relax the statutory waiting period in his favour.

“I pray, humbly, that the fifteen-year waiting period be relaxed as an equitable exemption in my favour and that I be considered for and conferred silk despite my thirteen years of practice,” he states.

He also argues that every generation of lawyers should have its own recognised leaders to inspire and mentor those who follow.

“The honour and dignity of King’s Counsel must be conferred from generation to generation in successive lines or trains like waves of the sea. Each generation or group must have its own leader wearing the honourable hat of King’s Counsel for direction, discipline and mentorship.”

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