A lawyer who received millions of pula in trust money for a property transaction has been ordered by the High Court to repay P4.175 million after failing to explain what happened to the funds. Her attempt to shift responsibility to an alleged theft or misappropriation was not enough to persuade the court that she had a defence.
Justice Ranier Busang granted judgment against Oratile Gaopotlake, finding that she had failed to account for money entrusted to her by three clients for the purchase of shares in a company.
The dispute began in November 2023, when Armin Gottfried Katz, Rochelle Diane Katz and Rainer Phillip Katz, agreed to purchase Ghanzi Electrical (Pty) Ltd from Terence Victor Noble and Helen Margaret Noble for P4.5 million. Transfer duty of P575,000 was also payable to the Botswana Unified Revenue Services.
To formalize the transaction, the purchasers approached Gaopotlake, then practicing as a sole legal practitioner under the name Warona Law Office. On February 1, 2024, they signed a draft sale agreement prepared by her.
Her explanation, as presented to the court, was that preliminary investigations suggested the money held in her trust account had been stolen, misappropriated or defrauded. She also claimed to have suffered losses and damages herself.
The financial arrangements appeared straightforward. The purchasers were to pay the purchase price to the sellers, with the applicable transfer duty going to BURS. Gaopotlake was entrusted with handling the money and ensuring that it was disbursed in accordance with her clients’ instructions.
But the transaction took a different turn. The clients paid P175,000 into Gaopotlake’s trust account on February 1, 2024. The following day, she received a further P900,000, bringing the total paid into the account to P1.075 million. The court found that the money had not been properly accounted for or disbursed as instructed. The Katz family subsequently demanded payment. On February 7, 2024, their attorney, John Carr-Hartley, wrote to Gaopotlake seeking an acknowledgement of debt. Rather than settle the matter, the dispute developed into litigation.
Gaopotlake denied liability. Her explanation, as presented to the court, was that preliminary investigations suggested the money held in her trust account had been stolen, misappropriated or defrauded. She also claimed to have suffered losses and damages herself. The explanation, however, raised more questions than it answered. Justice Busang found that Gaopotlake had provided no investigation report, confirmatory affidavit from investigators or other evidence establishing what had happened to the missing money. Nor had she explained whether a final investigation had been conducted, or why its findings were unavailable.
The judge was particularly troubled by the absence of a coherent account of the funds. During submissions, the court asked Gaopotlake’s lawyer what had become of the money. The answer was, “We do not know.” The next question, which followed naturally, was who knew or ought to know. Gaopotlake had been entrusted with the money in her professional capacity, and her responsibility was to ensure that it remained available for the purpose for which it had been deposited. Justice Busang rejected the suggestion that possible bookkeeping errors or an unidentified third party’s alleged misappropriation could, without supporting evidence, constitute a defence to the claim.
The ruling also took issue with Gaopotlake’s attempt to rely on a defence of gratuitous bailment, effectively suggesting that she should not be held liable for the loss of money entrusted to her without compensation.
“The very essence of trust is the absence of risk,” Justice Busang said, referring to established legal principles governing the handling of clients’ funds.
The ruling also took issue with Gaopotlake’s attempt to rely on a defence of gratuitous bailment, effectively suggesting that she should not be held liable for the loss of money entrusted to her without compensation. The court found that this argument was irrelevant to the circumstances. She had received the funds as a lawyer and was expected to administer them according to her clients’ instructions.
The Katz family were awarded costs on the attorney-and-client scale, a particularly punitive costs order. Justice Busang said there was little doubt that such an order was justified by the circumstances. Gaopotlake had used her position as a lawyer to receive money that her clients believed would be handled according to their instructions, only to fail to account for it. Her explanation, the judge said, lacked bona fides and was opportunistic and self-serving.
