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RESERVED WORK/PRACTISING CERTIFICATES/MONOPOLY

Dube v Law Society of Zimbabwe 1999 (2) ZLR 424 (S)
The managing director of a firm, who was not a legal practitioner, had, for a fee,
assisted motor accident victims to pursue claims for compensation against
motor insurers. He had written to the insurance companies, threatening to
commence legal proceedings against them if they did not settle the claims. The
Law Society sought an interdict preventing the director from continuing to act
in this way:
Arising from complaints received from several insurance companies, the
respondent formed the opinion that the first appellant, in the conduct of the
business of the second appellant, was in breach of s 9(2)(b) of the Legal
Practitioners Act [Chapter 27:07] (the Act). It sought from the High Court an
interdict preventing the appellants from “communicating in any way with
insurance companies and/or their legal representatives in connection with
accident damages claims on behalf of members of the public”.
None of the letters referred to [in evidence] contained the express
intimation that the appellants intended to institute the threatened
proceedings themselves. Hence the crucial question before the lower court was
whether such an understanding was the only reasonable inference to be drawn
therefrom.
It was of no assistance to the appellants to proclaim that what it was sought to
convey to the recipients of the letters was that, if litigation became necessary,
legal practitioners would be engaged. The appellants were to be judged
objectively by what was written and not allowed to take refuge in any
unexpressed mental reservation or unstated intent ... I respectfully share the
conclusion of the learned judge that the appellants acted in breach of s 9(2)(b)
of the Act.

FIT AND PROPER PERSON

Hayes v the Bar Council 1981 ZLR 183 (A)
The appellant’s application for his admission as an advocate had been dismissed
by a judge of the General Division on the grounds that, in the course of
litigation which the appellant had brought and conducted on his own behalf over
a number of years, he had on several occasions shown gross disrespect towards
the judiciary and the judicial system, and that when explaining the reasons for
his disrespect he had shown a lack of frankness and some degree of dishonesty.
On appeal:
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“The onus was all along on the appellant to establish that he was a fit and
proper person to be admitted as an advocate. The question of whether or not
the appellant was a fit and proper person was not a question to be decided as a
matter of discretion by the trial Court, but that it was a matter to be
decided as an objective question of fact.
It is the duty of the Court to see that the officers of the Court are proper
persons to be trusted by the Court with regard to the interests of suitors,
looking to the character and position of the persons to ensure that suitors
are not exposed to improper officers of the Court. So far as possible the
court must be satisfied that an applicant will be able with honesty and
balance to perform the duties of an advocate to the advantage of those he is
called upon to represent. This does not mean that it is the task of the court to
assess the professional competence of a person who shows that he has the
necessary qualifications, but it can take into account his previous conduct in
relation to the courts and his expressed attitudes to the courts if these are
relevant to the way he may perform his duties on behalf of those he may
represent.
In addition, the profession of advocate and attorney requires the utmost good
faith from practitioners and from all aspirant practitioners. An advocate, whose
main duty it will be to represent his clients before the courts, must be a person
in whose reliability and integrity the court must be able to place complete
trust, it always being remembered that an advocate owes a duty at least as
much to the court as to his client. And the court must be satisfied that he will
not by his behaviour do anything to bring the courts or the profession into
disrepute.
... his attitude ... shows a wholly irresponsible attitude to the court before whom
he wishes to practise and does not lead one to conclude with much confidence
that the appellant would be a fit and proper person to be admitted, though again
this may not of itself be a conclusive factor, if some reason had been given for
it. As matters stand the appellant has given no reason ... A person who holds
such views about the court before whom he intends to practise, and has “little or
no respect for the Judiciary”, may well be unlikely to display the frankness and
balance that is required of a practitioner. Holding the views he does about the
Courts and the judges he may easily feel that just as he does not trust them to be
impartial he has little or no duty to place every fact fully before them ... His
attitude also shows an unacceptable lack of balance which may well redound to
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the disadvantage of his clients. Nor can I entirely discount what I regard as his
general unreliability.
What I find even more disturbing is the appellant’s general lack of frankness.
As it is I am of the view that he has not established that he is a fit and proper
person to be admitted. The courts must be able to rely without question on
the reliability, veracity and integrity of those practising before them and
the evidence as a whole does not convince me that they could do so in the
case of the appellant. Nor do I think that his previous conduct shows him as a
person upon whom the public could rely as a reliable and balanced person to
deal with their affairs before the courts about which he holds such strong views
which he is so quick to express.
Appeal dismissed.

In re Chikweche 1995 (1) ZLR 235 (S)

The applicant is a citizen of Zimbabwe and a devout follower of the Rastafari
movement. On 17 November 1992, he lodged an application in the High Court
for registration as a legal practitioner, notary public and conveyancer. He
possessed the necessary prescribed qualifications.
Accompanying the application was the affidavit of a Mr Joel Zowa, a registered
legal practitioner and lecturer in the Faculty of Law at the University of
Zimbabwe. It stated that the applicant was known personally to him and
considered to be a fit and proper person to be registered. The Law Society also
notified that it did not oppose the application. That body is recognised as the
guardian of “the prestige, status and dignity of the profession”. On the face of it,
there was no impediment to the applicant’s admission as a legal practitioner,
notary public and conveyancer.
However, when the applicant appeared in person before the High Court on 29
July 1993, the learned judge presiding considered him to be “unkempt” and not
properly “dressed”. The deep-felt objection concerned the applicant’s hair
which, as a Rastafarian, he wore habitually in the style commonly known as
“dreadlocks”. In consequence the learned judge declined to permit the applicant
to take the oath of loyalty and of office, in terms of s 63 of the Legal
Practitioners Act, as a preliminary to registration. It is not certain from the
cursory judgment delivered whether such refusal was based on the failure of the
applicant to show that he was “a fit and proper person” as required by s 5(1)(f)
of the Legal Practitioners Act, or upon the long-standing rule of practice
adopted and enforced by the courts of this country that members of the legal
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profession who appear to present cases must be formally dressed, tidy and well
groomed. It seems to me that it was this practice that the learned judge had in
mind, for no reference was made, as I would expect it to have been, to a non-
acceptance of Mr Zowa’s assessment of the applicant as a fit and proper person.
Dismayed at the attitude of the learned judge, counsel who appeared
immediately submitted that the refusal to grant the applicant registration, by
reason only of his chosen hairstyle, infringed his right under the Constitution of
Zimbabwe to:
a. freedom of conscience (s 19(1));
b. freedom of expression (s 20(1)); and
c. protection from discriminatory treatment (s 23(1)(b)).
Thereupon, the learned judge complied with the request that the matter be
referred to the Supreme Court for determination in accordance with s 24(2) of
the Constitution.
I am prepared to accept the possibility, however, that the learned judge
considered that the wearing of dreadlocks revealed that the applicant was not “a
fit and proper person” to be registered, as required by s 5(1)(f) of the Legal
Practitioners Act.
Construed in context, the words “a fit and proper person” allude, in my
view, to the personal qualities of an applicant - that he is a person of
honesty and reliability. I am not persuaded that the lawmaker intended by
use of the phrase to embrace the physical characteristics of an applicant.
For appearance bears no rational connection with the object of maintaining
the integrity and honour of the profession.
In the light of this judgment, the finding of the learned judge, that the applicant
was not a fit and proper person, was factually incorrect. It necessarily follows
that the act of refusing to permit the applicant to take the requisite oaths could
not be done under the authority of s 5(1)(f) of the Legal Practitioners Act. The
authority of that provision was misconceived. It did not allow of what was done.
“In terms of s 63 of the Legal Practitioners Act 1981, the High Court is directed
to permit Enock Munyaradzi Chikweche to take the oaths of loyalty and of
office specified in Schedule 1 of the Constitution.”

Aitken v Law Society of Zimbabwe 1995 (2) ZLR 383 (S)

The respondent successfully applied to the Legal Practitioners Disciplinary
Tribunal (“The Disciplinary Tribunal”) for a directive that the name of the
appellant be deleted from the register of legal practitioners in terms of s
28(1)(i) of the Legal Practitioners Act [Chapter 27:07].
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The application was founded on the appellant’s convictions by the High Court
on three counts of contravening the exchange control legislation; it being the
respondent’s submission that the commission of these offences constituted
unprofessional, dishonourable or unworthy conduct on the part of a legal
practitioner as contemplated by s 28(3) of the Legal Practitioners Act.
Accepting the validity of the submission the appellant, as he was entitled to do
under the proviso to s 28(3), tendered a written statement to the Disciplinary
Tribunal in extenuation of his conduct. In it he contended that the ultimate
punishment the respondent was seeking to have imposed upon him was grossly
excessive and disproportionate to the justice of the matter.
The Disciplinary Tribunal considered that there was nothing which exonerated
the appellant’s conduct in committing the offences. The Disciplinary Tribunal
then went on to hold that the appellant had shown himself to be not a fit and
proper person to practise his profession, and that the only appropriate
punishment was that suggested by the respondent.
In this appeal, the correctness of the finding by the Disciplinary Tribunal that
the appellant is unfit to practice is challenged. As it is a finding which is fully
susceptible to re-assessment by this court, it becomes necessary to investigate
the facts on which it was based.
In the first place it was determined by the Disciplinary Tribunal that the three
offences were committed by the appellant in his professional capacity. That
finding, if correct, is of importance. Generally, a crime committed by a legal
practitioner is regarded as less reprehensible if it had nothing to do with the
conduct of his practice. Motoring offences are the commonest example, but
there are others arising from carelessness, thoughtlessness and even ignorance.
In this matter, I am entirely satisfied that the three contraventions of the
Exchange Control Act, as read with the Regulations, were committed by the
appellant in his professional capacity.
The second crucial finding made by the Disciplinary Tribunal was that the three
offences committed by the appellant constituted improper conduct of so serious
a nature as to render him unfit to continue in practice.
I have no hesitation in agreeing with the view that the offences were serious.
They were blatant breaches of exchange control prohibitions by a legal
practitioner and officer of the court whose sworn duty it is to uphold the law.
There is no question of the appellant being unaware of the unlawfulness of his
actions. The feeble attempt to suggest the contrary does him no credit. There
was no temptation put before him. His moral culpability was high. He played a
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pivotal role without which the transactions may not have taken place. His
conduct, which bore a distinct element of dishonesty and deceit towards the
fiscus, was such as to bring the profession into disrepute with the public, the
courts and those concerned with the administration of justice. This,
notwithstanding that no breach of a client’s trust was involved.
It is an unfortunate reality than in recent years there has been a disturbing
outbreak of professional misconduct which has harmed the image of the
profession. Where a legal practitioner engages in criminal activity of a serious
nature on behalf of clients, the result can only damage the integrity, dignity and
respect in which the profession is held by fair minded and righteous persons. It
is essential for the maintenance of the profession's prestige that practitioners
should not be identified with any such offending conduct.
It is for these reasons that I am in respectful agreement with the finding of the
Disciplinary Tribunal that the appellant has shown himself unfit to practise.
Having so found the Disciplinary Tribunal was left with two options. Either to
order as it did or suspend the appellant for a specified period from practising as
a legal practitioner. I would not have felt any sense of unease if the Disciplinary
Tribunal had suspended the appellant for a period of nine to twelve months.
However, I am not able to point to any misdirection or irregularity which would
entitle this court to interfere with the order made in the exercise of the
Disciplinary Tribunal’s discretion. Nor have I been persuaded that the deletion
of the appellant’s name from the register of legal practitioners is grossly
inappropriate in all the circumstances.
Appeal dismissed.

Chirambasukwa v Law Society of Zimbabwe 1995 (2) ZLR 188 (S)

The appellant, a legal practitioner, had in 1987 been appointed as Deputy
Ombudsman. He occupied that post until he resigned from it in 1991, when a
tribunal was set up in terms of s 110(5) of the Constitution to enquire into
whether the appellant should be removed from office for misbehaviour. It was
alleged and proved, inter alia, that in his position as Deputy Ombudsman the
appellant had -
a. falsified or misrepresented certain facts or figures in the official reports
which he had to present to Parliament;
b. in those reports he had reproduced without acknowledgement excerpts
from official reports from other countries as being his own work;
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c. he had misused an official vehicle by letting his wife drive it and, when
she was involved in an accident, made a false report that he had been the
driver.
Following his resignation, the appellant set up in practice as a legal practitioner.
He was regularly issued practising certificates. The Law Society began
proceedings against him in April 1993 and the Legal Practitioners Disciplinary
Tribunal made its finding in November 1994. Relying on the items mentioned
above, it decided that he should be struck off the register of legal practitioners.
The sole issue in this appeal was whether the decision by the Legal
Practitioners Disciplinary Tribunal to have the appellant struck off the
register of legal practitioners was so unreasonable as to justify that order
being set aside and a lesser penalty being imposed.
It seems to me that the mere making of false statements to Parliament, morally
contemptible as it may be, is not a criminal offence known to our law, unless
Parliament was being invited to act on that false statement to the prejudice of
another. While to Parliament is due the highest courtesy and respect, it would
indeed be exceedingly dangerous, in my view, for the law to hold that untrue
statements contained in a report, not expected to be acted upon by Parliament,
constitute a criminal offence.
Plagiarism, which is defined in the Oxford English Dictionary as “the wrongful
appropriation or purloining, and publication as one's own, of the ideas, or the
expression of the ideas of another”, though reprehensible, does not constitute a
criminal offence.
If the above observations hold true, then the only criminal offence the appellant
committed was the misdemeanour of making a false report claiming that he was
the driver, when he was not, of his personal issue motor vehicle, which had
been involved in an accident. Even then, the motor vehicle accident was not due
to the fault of his wife. In other words, he was saving himself embarrassment,
but not avoiding the payment of damages. It is no wonder that he was not
prosecuted for it.
I draw attention to the non-criminal, and criminal, nature of the offences
levelled against the appellant because different standards of proof apply to
them. Where an allegation involves professional misconduct simpliciter it only
has to be proved on a balance of probabilities, but where the allegation involves
an element of deceit or moral turpitude of a high order, which might make the
accused liable to criminal prosecution, that allegation should be proved beyond
a reasonable doubt.
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It is not in respect of every case that a legal practitioner has been convicted of a
criminal offence which disqualifies him from practising his profession or
justifies the removal of his name from the register by the Disciplinary Tribunal.
In the instant case, not a single one of the specific incidents complained of was
done in the appellant’s professional capacity. Not a single one of the incidents
prejudiced anyone. The most serious of the charges levelled against the
appellant were plagiarism and laying a report which contained falsehoods
before Parliament - neither of which is a criminal offence known to our law. If a
court were to sanction the imposition of the severest punishment - the removal
of his name from the register of practitioners - for conduct which is not criminal
and not committed in relation to practice, what punishment would it be left to
impose on legal practitioners who commit heinous offences involving deceit or
moral turpitude of a high order in the course of practice? Even where offences
involving deceit or moral turpitude are committed in the course of practice,
discretion reposes in the Disciplinary Tribunal with respect to the appropriate
punishment to impose.
It is also pertinent that, although a registered legal practitioner at the time of the
commission of the conduct complained of, he was not in practice as a legal
practitioner; he was not involved in court appearances or handling of clients’
funds; his conduct had nothing to do with practice as such.
The appeal is allowed .... The order of the Disciplinary Tribunal that the
appellant’s name be deleted from the register of legal practitioners is hereby set
aside, and in its place is substituted the following:
“The appellant is suspended from practice for a period of six months, the whole
of which is suspended for a period of two years on condition that during the
period of suspension he shall not be found guilty by the Disciplinary Tribunal of
unprofessional, dishonourable or unworthy conduct.”

Mafara v Law Society of Zimbabwe 1987 (2) ZLR 293 (S)

The appellant had been convicted by a magistrate of drunken driving (a second
offence), of driving without a licence (2 counts) and of defeating or obstructing
the course of justice by falsely pretending, in an earlier case against him, that he
was a licensed driver, by relying on a namesake's driver’s licence. He did not
appeal against the magistrate’s judgment.
The Law Society, on becoming aware of the conviction for defeating or
obstructing the course of justice, referred the matter to the Legal Practitioners
Disciplinary Tribunal in terms of s 26 of the Legal Practitioners Act No. 15 of
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1981. The Tribunal ordered the appellant’s name to be deleted from the Register
of Legal Practitioners.
Against that order, the appellant appealed, on two grounds:
1. the Tribunal erred in refusing to allow him to adduce evidence which
would have shown that he was wrongly convicted, on the basis that the
Tribunal was not a court of appeal; and
2. the sentence passed by the Tribunal was so severe as to cause a sense of
shock.
The essence of the appellant’s argument on the first point was this. He wanted
to show the Tribunal that his conviction (on the relevant count) was wrong. He
assumed that the whole record of the hearing and the evidence in the
magistrate's court would be before the Tribunal. He intended to demonstrate, by
reference to the record, that no reasonable magistrate could possibly convict
him on that evidence. But in the event the record was not before the Tribunal.
His attempts to demonstrate the unsoundness of the decision were thus
frustrated and he was told he was not arguing an appeal. As a result justice was
not done to him.

In the first place, and as pointed out by the learned chairman of the Tribunal, it
is well established that proof of a man’s conviction is regarded as prima facie
evidence that he had in fact committed an offence. Proof of the conviction was
before the Tribunal as was the summons, the judgment and the reasons for
sentence. The fact of the conviction was admitted by the appellant in his own
handwriting and in his statement in writing before the Tribunal. He conceded
that he had not appealed against the conviction, but asserted that it was wrong.
He has not at any stage sought leave to appeal out of time against the
conviction.
I am satisfied that there is no question of law involved here, no difficult
problem of where the onus lies, or when the evidential burden shifts. We are
concerned with a series of facts which point beyond question to the fact that the
appellant lied to the court in 1985 when he claimed to have a driver’s licence
well knowing that he did not.
The Tribunal, in my view, was right, at least on the facts of this particular case,
to refuse to allow the appellant to treat the hearing as some sort of appeal
against the finding of the magistrate. It is indeed of significance that the
appellant did not appeal against his conviction, and he has blown hot and cold
over his reasons for not doing so.
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The second and final point taken by the appellant is as to the severity of his
‘sentence’. The order of the Tribunal is not strictly a sentence, since the
appellant has already been punished for his offences by the criminal court.
The Tribunal gave considerable thought to the question whether striking off was
the proper remedy, and came to the conclusion that it was. I have studied its
reasons carefully and I can find no fault with them. The unhappy fact is that the
appellant has persisted throughout in his quite hopeless claim that his
predicament is everybody’s fault but his own. One can understand, and to an
extent sympathise with, his obvious inability to face up to reality. But at the
same time it is impossible to avoid the conclusion that the appellant has
demonstrated and continues to demonstrate a lack of that integrity which the
legal profession demands of its members.
I can see no basis for interfering with the decision of the Tribunal. I would
dismiss the appeal.

DUTY TO THE COURT

Ndlovu v Murandu 1999 (2) ZLR 341 (S)
The applicant entered into a written contract with the respondent in terms of
which he sold his interests, rights and title to a stand in one of the high density
suburbs of Bulawayo. Most of the purchase price was paid by the respondent to
the applicant when the agreement was signed. The remainder of the purchase
price, namely, $2000, was to be paid in instalments over three months but it was
later agreed between the parties that the remaining $2000 would be paid against
transfer of the stand. Acting on instructions to do so, the applicant’s lawyer then
demanded payment of the $2000 plus interest from the applicant within seven
days, thereby purporting to put the respondent in mora. In response to this
demand, the respondent tendered payment of the $2000 against transfer.
Presumably on the advice of his lawyer, this tender was ignored or rejected and
instead a letter was dispatched to the respondent, purporting to cancel the sale
and tendering back the money already paid to the applicant. The applicant then
applied to court for an order confirming this purported cancellation of the sale:
These proceedings should never have come to this court at all, save for the
greed of the applicant and probably that of his legal practitioner as well. He
made every conceivable effort to frustrate and defeat the intention of the parties.
It is clear that his intention in doing so was to resell the house obviously for a
higher price.
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When the applicant sought legal advice, it must be assumed that he was
keen to be advised as to the legality of his conduct in seeking termination of
the contract when he was in receipt of more than half the purchase price.
He, on his own accord, could hardly have turned down the tender made by
the respondent's legal practitioners on 23 October 1998. He must have been
advised by his lawyer not only to reject the tender for payment but to take
the respondent to court to seek and secure an order for the termination of a
valid agreement of sale. I have no doubt at all in my mind that his legal
practitioner knew at all material times that the agreement he sought to
terminate was valid and legally binding on the applicant. Thus these
proceedings amount to an unacceptable abuse of the court process. It is
surprising that in his draft order the applicant seeks termination of the
agreement and the eviction of the respondent from the house. However, he has
not tendered the refund of the sum of $34000 paid as part of the purchase price.
The implications of such omission is that the same was deliberate with the
intention that the respondent forfeit that amount. There has been no legal basis
advanced for the seizure of the said sum. This clearly indicates that the
applicant has acted mala fide throughout. I can find no legal basis for allowing
the applicant to retain the money in the event of the cancellation of the
agreement.
In considering the issue of costs, I have to take into account all these factors and
decide upon an appropriate order for costs. It is likely that the applicant lied in
his initial instruction to the effect that the respondent was unable to pay the
balance outstanding. Such lies as he may have perpetrated upon his legal
practitioner were dispelled, when the respondent's legal practitioners confirmed
that she was able and ready to pay off the balance, upon transfer.
It was then the duty of the legal practitioner to advise his client properly as to
the legal status of the contract. It was his duty to advise his client that the
agreement of sale was perfectly valid and legally binding. Instead, he chose to
act as a catalyst in the applicant's attempt to frustrate and defeat the intention of
the parties. He must be made to pay the price for his indiscretion in instituting
these proceedings at a time when he was in possession of a letter from a fellow
legal practitioner confirming that the money for payment of the balance was
available and ready to be paid.
Accordingly, the application is dismissed with costs and the following order is
made:
4. Costs shall be paid as follows:
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4.1 Mr Ndlovu , the legal practitioner for the applicant, be and is hereby ordered
to pay the cost of this application de bonis propriis at an attorney and client
scale.
4.2 The legal practitioner’s own fees shall be paid in the following manner:
4.2.1 He shall charge his client, the applicant, fees for taking instruction and
work done up to and including the 22 October 1998. His bill of fees shall be
subject to taxation.
4.2.2 For all purported professional services rendered from 23 October 1998 to
14 May 1999 he shall not charge his client for such services, save as ordered in
para 4.2.1.
...
5. The Assistant Registrar is directed:
5.1 To bring to the attention of the applicant the order made in respect of costs
and fees. That should his legal practitioner in contempt of this order levy any
fees other than those awarded in 4.2.1 supra he should notify the Assistant
Registrar who shall immediately notify the Secretary of the Law Society for an
appropriate action to be taken for contempt of court.
5.2 To notify the Secretary of the Law Society of the order made against the
legal practitioners concerned on the issue of costs and fees recoverable from his
own client.

Dzeka v Nyabango HH-20-2004

HUNGWE J. Appellant appeals against two judgments of the court of the
Magistrate. In the first judgment, the court a quo granted an order of ejectment
in favour of the respondent against the appellant with costs on the higher scale.
In the second judgment, the court a quo granted leave to the respondent to
execute the writ of ejectment notwithstanding the notice of appeal filed by the
appellant.
Appellant raised six grounds of appeal viz,
1. That the magistrate “erred in law by failing to dispose justice
impartially leaving no doubt that he had preconceived his
judgment.”
2. That.. “due to the antipathy and bias, the learned magistrate
perfunctorily evaluated the defence’s version crediting the
plaintiff’s case even in the face of allegations of fraud/corruption
when she failed to produce a key witness to refute the defence case.
6. …
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Dealing with the first two ground of appeal, appellant did not persist with the
same in his main heads of argument as well as his supplementary heads. These
grounds allege serious misconduct on the part of the trial magistrate. To
make such allegations against a judicial officer is a serious matter. It is
unethical for an officer of the court such as a legal practitioner of Mr
Katsande’s standing to make such allegations without foundation. A
perusal of the record does not support the allegations of prejudicial bias and
antipathy that appellant alleges in his grounds. The reasons of judgment of the
court does not in any way reflect any bias on the part of the magistrate. No
wonder Mr Katsande could not advance any submission in his heads or in court
to support these two grounds.

Matamisa v Mutare City Council 1998 (2) ZLR 439 (S)

The applicant had been dismissed from his position as town clerk of Mutare. He
applied successfully to the High Court for reinstatement, but the City Council
appealed. The appeal was upheld in the Supreme Court. The applicant alleged
that he had not received a fair hearing and that the Supreme Court had already
made up its mind about the matter. He brought a constitutional application
before a differently constituted Supreme Court, seeking to have the previous
proceedings set aside. In dismissing this application without hearing the
application:
It is our view, therefore, that this application is totally without merit and is
frivolous and vexatious.
In this matter, an important ethical question needs to be dealt with. To what
extent should a legal practitioner pursue a case in which he personally is deeply
involved?
Mr Hwacha has submitted the heads of argument in this application. Although
the affidavit in support of this application is in the name of Matamisa, it is clear
that Mr Hwacha must have been deeply involved in its preparation. Indeed, it
would, in my view, have been far more appropriate for Mr Hwacha to have
sworn an affidavit in his own name, and for him to have left it to another
practitioner to submit argument in support of this application, as Mr Biti did.
For Mr Hwacha to have acted as he has done in this application runs
perilously close to him overlooking his duty to the court, which is every bit
as important as his duty to his client. The legal practitioner’s duty to the
court requires him to adopt a disinterested attitude. He should be in a
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position to give impartial, objective advice to his client. It is difficult to see

how Mr Hwacha could, in the circumstances, have discharged this duty.
Because of his closeness to the matter, he should unquestionably have sought
the views of another practitioner less involved in the case. Had he done so, I
doubt whether this application would have been proceeded with.
From what I have said earlier in this judgment, it must be apparent that I
consider the application was ill-conceived and without merit. Having concluded
that this application is without merit, what about costs? It should never have
been brought. Costs must be awarded to the first respondent and the intervener
on the higher scale. The only question which has exercised my mind is whether
Mr Hwacha should be made to pay those costs de bonis propriis. Mr Hwacha
was asked to address us on this issue and did so.
Costs de bonis propriis will be awarded against a lawyer as an exceptional
measure and in order to penalise him for the conduct of the case where it has
been conducted in a manner involving neglect or impropriety by himself. Such
costs are only awarded in reasonably grave circumstances. Generally speaking,
dishonesty, mala fides, wilfulness or professional negligence of a high degree
fall into this category. I consider that Mr Hwacha’s conduct falls into the
category of mala fides and his behaviour highly reprehensible.
As I have said, this application was in-conceived and I consider application
made frivolous and vexatious. Had Mr Hwacha adopted a more objective
approach, he might well have seen that this was so. I do not accept that Mr
Hwacha genuinely believed that he had a tenable argument. Indeed had there
been any factual basis at all for suggesting that the Supreme Court did not give
Matamisa a fair hearing, there would have been grounds for trying to remedy
the situation. Consequently, I will order that Mr Hwacha pay the costs de bonis
propriis.
Accordingly, the application is dismissed with costs on the scale of legal
practitioner and client and to be paid de bonis propriis by Mr Hwacha.

Associated Newspapers of Zimbabwe (Pvt) Ltd v Diamond Insurance Co (Pvt)

Ltd 2001 (1) ZLR 226 (H)
In a dispute over the shareholding and management of a company that published
a daily newspaper, a formal application was made for the recusal of the newly-
appointed judge who was to preside over the hearing, on the ground that before
his appointment to the Bench he had been associated with a rival newspaper.
Before making the formal application, the applicants did not apprise the judge,
 15 
 

except very briefly and in the vaguest terms, of the grounds on which he would
be asked to recuse himself. In fact he had worked for a weekly (not a daily)
newspaper in an editorial capacity for about five months while on sabbatical
leave from his normal employment as a university lecturer, and had contributed
articles to several other newspapers and journals:
According to one learned author, Eric Morris, ordinary, as well as
professional ethics, requires that the judicial officer whose recusal is
contemplated should be informed before such an application is made. This
is normally done to avoid embarrassment both to the court and to counsel:
“The usual procedure is to request the judge or magistrate to receive both your
opponent and yourself in chambers, where you indicate tactfully the fact and the
grounds of your application”.
In this case, I was accorded the courtesy of an advance warning of the fact that
such an application was being contemplated, but, unfortunately, not adequate
grounds upon which it was going to be based. This made it difficult for relevant
disclosures to be made, and those that were made had to be squeezed through in
the teeth of a concerted determination to proceed with a formal recusal
application as narrated above. It is only in Mr Nherere’s heads of argument that
first applicant belatedly raised the need for disclosure as follows:
“Unfortunately, Hlatshwayo J has not seen it fit to disclose to first applicant the
exact nature of his association with The Zimbabwe Mirror; the
duties/functions/responsibilities undertaken during the five month stint; and, the
exact date of commencement and termination thereof. Further, Hlatshwayo J
has not indicated whether the earmarking for the editorship had been
communicated to him.”
This, surely, is what the applicants should have sought to establish before
making the formal application for recusal. However, subject to what will be said
in this connection below, much of what Mr Nherere argues should have been
disclosed either was in fact disclosed, as in the case of the termination of the
association, or can be regarded as common cause in the sense that the duties and
functions of a person in a temporary or acting editorial position are quite
obvious.
What all this highlights, however, is that the informal approach could be used
more profitably by allowing enough opportunity and time for the judicial
officer, if he or she so wishes, to give their side of the story. This may well allay
the fears of the litigants or at the very least place them in a position where they
would base their eventual recusal application on a more factual basis.
 16 
 

In the case of President of the RSA v South African Rugby Football Union 1999
(4) SA 147 (CC), there was correspondence which anticipated the recusation
application in which the applicants sought certain information and clarifications
from the judges concerned. This exchange of information culminated in the
“Justices’ statement of facts” in which the members of the court, against whom
specific allegations were made, commented on those allegations. As a
consequence of this statement, which was handed out to counsel for both sides
before the matter was called and read out in open court, many allegations relied
upon to ground the recusal application fell away or were withdrawn.
The need to verify the facts before making a formal application for recusal
cannot be overemphasised ... a legal practitioner (attorney or advocate) who
attacks the impartiality of the Bench must be certain that his action is
justified and that he is not merely relying on instructions, for without that
certainty the boundary of contempt may well be transgressed.
E. A .L. Lewis Legal Ethics puts the matter as follows:
“Though the attorney must attend to his client’s reasonable belief that the Bench
is not impartial, if he does not share that belief he should seek to persuade the
client to his own way of thinking; but while thus again emphasising the need for
the most extreme caution the writer would add that if duty to his client demands
it he must launch the application courageously and without fear of personal
consequences. If the thing must be done, it must be done without timidity.
Should the attorney have a scintilla of doubt whether his application be
contempt he should seek the assistance of experienced counsel, not necessarily
at his client’s expense.”
It has also been said with justification that judicial officers, on the other hand,
should not unduly regard a recusal application as an affront upon their integrity.
At a personal level, an application for recusal must surely give offence, however
much that may be concealed. However, any personal discomfiture felt must be
tempered with the realisation that at the root of the rule against bias lies the very
concept of judicial independence.
In terms of s 79B of our Constitution, in the exercise of his judicial authority, a
member of the judiciary is required “not to be subject to the direction or control
of any person or authority”. Judges subscribe to the Judicial Oath which
requires them “to do right to all manner of people after the laws and usages of
Zimbabwe, without fear or favour, affection or ill-will.” It is therefore in the
general interest of the judiciary for an individual judge to recuse himself
 17 
 

where a reasonable apprehension of “favour, affection or ill-will” is

perceived.
In considering what a judge’s attitude to a recusal application should be, the
South African Constitutional Court, in President of the RSA v South African
Rugby Football Union supra at 176, quoted with approval American and
Australian judicial opinion which regards the judge’s duty to sit where he or she
is not disqualified as compelling as the duty not to sit where disqualified. In
particular, the opinion of Justice Mason in the High Court of Australia judgment
(Re JRL: Ex p CJL (1986) 161 CLR 342 (HCA) at 352 bears repeating here:
“Although it is important that justice must be seen to be done, it is equally
important that judicial officers discharge their duty to sit and do not, by
acceding too readily to suggestions of appearance of bias, encourage parties
to believe that by seeking the disqualification of a judge, they will have
their case tried by someone thought to be more likely to decide the case in
their favour.”
Turning now to the position of the legal practitioner for the other side, it
has been said that in a recusal application, respondent counsel’s attitude
“should be completely neutral, because the matter is one between your
opponent and the Bench”. However, there are circumstances where the
respondent would be justified in opposing the application if, for example,
as was initially felt in this case, the allegation of possible bias appears “far-
fetched” or is calculated to delay proceedings.
Held, further, that where a judicial officer has such an interest, be it financial,
personal or whatever else, in the outcome of a case before him, or has
conducted himself in such a way, that he could be regarded as having become,
directly or indirectly, a party to the proceedings, the maxim nemo judex in sua
causa requires that he should recuse himself. He is automatically barred by
operation of law. Even where he is not automatically disqualified, a judicial
officer must still recuse himself upon application by a reasonable litigant who
reasonably apprehends a possibility of bias on the judicial officer’s part.
Held, further, that in all cases of automatic disqualification there must be a link,
direct or indirect, between the judicial officer and one of the parties to the
litigation. This link, albeit in a less direct form, must also be proved in cases
involving reasonable apprehension of bias.
[Note: the italicised part is copied from the headnote and included for
completeness’ sake]
 18 
 

Maposa v Digglefold Development Association HH-47-07

BHUNU J. At the close of the plaintiff’s case Mrs Zindi counsel for the
Defendants applied for absolution from the instance giving cogent and precise
reasons for her application. Mr Kamudefuwere counsel for the Plaintiff was ill
prepared to deal with the application and asked for the court’s indulgence for a
postponement to enable him to make written submissions. My longhand notes at
this juncture read as follows:
“Mr Kamudefuwere: Unfortunately I was not ready with my response. I am
prepared to file a written response by Monday she can
respond by the 4th of December 2006.
Mrs Zindi: I did indicate to my learned friend that I was going to
make this application but I have no objection if he
needs more time.
Court: Mrs Zindi to respond by Tuesday the 5th of December
2006.”
Regrettably Mr Kamudefuwere did not keep his word prompting me to instruct
my clerk to write him a reminder coupled with a threat that the court would go
ahead and determine the application without his response if he did not act
promptly. My clerk obliged and wrote to him on the 25th January 2007 in the
following terms:
“Dear Sir
RE: T. MAPHOSA v DIGGLEFORD DEVELOPMENT ASSOCIATION
We refer to the above matter. You made an undertaking in court that you would
file written submissions in response to the respondent’s application for
absolution from the instance by 4pm on the 4th of December 2006.
We phoned your office twice during the vacation and you were said not to be
available. Mrs Zindi wrote you a letter on 11 January 2007 to remind you again.
Taking into account that you knew very well the due date and follow ups made,
the Judge is proceeding in writing the determination.”
The above strongly worded letter elicited no response from Mr Kamudefuwere.
From an abundance of caution I again went out of my way and instructed my
clerk to telephone both lawyers on the 8th May 2007 reminding them to file
their written submissions which by then were long overdue. My clerk reported
that Mr Kamudefuwere had promised to file a letter by today the 9th of May
2007. As I write this Judgment it is now 12 noon and no letter has been received
from Mr Kamudefuwere. I must however hasten to point out that what I wanted
 19 
 

was not a letter but written submissions which have not been forthcoming from
Mr Kamudefuwere despite numerous reminders.
In contrast to Mr Kamudefuwere’s sloppy I couldn’t careless attitude Mrs. Zindi
promptly called at my chambers to explain that she had already made her
submissions in open court and in the absence of any response from the other
party she had no further submissions to make. In fact she was waiting for the
court’s determination in terms of the above letter. Undoubtedly Mr
Kamudefuwere has stretched this court’s patience to the limit. Although I am
left with the rather unpleasant feeling that the plaintiff may very well have been
hard done owing to his lawyer’s rather unprofessional conduct, the hard reality
is however, that there is a limit beyond which a litigant cannot escape the
natural consequences flowing from his lawyer’s misconduct.
Mr Kamudefuwere having stretched this court’s patience to breaking point, I
have no option but to proceed on the basis that the application for absolution
from the instance is unopposed. I am however of the view that Mr
Kamudefuwere has rendered grave disservice to his client such that ordering the
client to pay the costs of these proceedings will be manifestly unjust and
tantamount to victimizing the victim. His sloppy conduct in handling this matter
may have rendered all the work he has done so far worthless to his client with
the result that the plaintiff may have to institute fresh proceedings at great
expense His conduct undoubtedly amounts to gross dereliction of duty if not
down right unethical conduct. All the court’s attempts to get him to explain his
conduct has come to naught.
As I round up my determination today the 27th of June 2007 I am yet to receive
his written response. It is trite that costs are always at the court’s discretion. In
the circumstances of this case and in the light of Mr Kamudefuwere’s rather
unbecoming and unethical conduct I was initially of the view that he should be
ordered to pay costs debonis propriis, that is to say, from his own pocket at the
higher scale. I had also considered that it is fair and just that he be barred from
charging his client for any services rendered because his conduct rendered such
service worthless. Upon further consideration and having regard to the ratio in
the case of Techniquip (Pvt) Ltd v Allan Cameron Engineering (Pvt) Ltd 1994
(1) 246 I however now realize and appreciate that it would be improper to
penalize Mr Kamudefuwere without having first afforded him a chance to be
heard on the issue because he might very well have a reasonable explanation for
his apparently unbecoming and unethical conduct. For that reason I consider
that these are matters which have a bearing on his professional conduct and fate
 20 
 

as a legal practitioner. That being the case I am of the view that matters of this
nature can best be handled by the Law Society of Zimbabwe in terms of the
Legal Practitioners Act [Chapter 27:07]
It is accordingly ordered that the application for absolution from the instance be
and is hereby:
1. Allowed with costs.
2. The Registrar is directed to serve a copy of this judgment on the senior
partner of Musunga and Associates Legal Practitioners.
3. The registrar is directed to refer this matter to the Secretary, Law Society
of Zimbabwe for his attention and appropriate action according to law.
Musunga and Associates, the Plaintiff’s Legal Practitioners
Kantor & Immerman, the Defendant’s Legal Practitioners

Vengesai v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H)
[T]he legal practitioners concerned failed to cite the relevant authority. I have to
say that argument on the law, with appropriate citation of all relevant cases,
including adverse decisions, is as rare amongst legal practitioners as are hens’
teeth. Yet it is to counsel that a judge must look for appropriate research
and argument if he is to be able to give judgments efficiently and correctly.
It is that duty of him, who would undertake the responsibility of an
advocate, a duty owed both to the client and the court, to do all relevant
research and to present that research to the court. A judge cannot be
expected to undertake himself all the original research in every case.
Slightly less remiss than not citing the relevant authorities is citing them by
reference to a single passage in the judgment without ensuring that the context
is apposite. This is something which may well have happened in the relevant
cases here.

Kawondera v Mandebvu S-12-06

Before concluding this judgment it seems to me to that some comment on the
conduct of the appeal by the legal practitioners is necessary. As I mentioned
above, counsel for the appellant failed to bring to the Court’s attention [a]
part of [a] quoted passage which tended to defeat his client’s case. The
ethics of the profession demand that if there is an authority which is
against his client, counsel is obliged to disclose it to the court. Not to do so
but to attempt to hoodwink the court is improper conduct.
 21 
 

The conduct of the respondent’s legal practitioner is also worthy of censure.

The passage referred to by counsel for the appellant was contained in the
appellant’s heads of argument which were filed twelve days before the
respondent’s heads of argument were filed. Yet the omission to quote the
passage in full or the fact that the rest of the passage tended to support the
respondent’s case was not mentioned in the respondent’s heads of argument,
which is an indication that it was not detected by respondent’s counsel. This is
indicative of a lack of the high degree of diligence which is expected of a legal
practitioner in the exercise of his duty to his client. Every reference made by
the opposing party must be checked for its accuracy and for the purpose of
ascertaining whether that authority truly supports the opposition’s case and, if it
does not, to so advise the court with the appropriate submissions. It is certainly
not in the interests of one’s client, and indeed could amount to a disservice, to
accept quotations and case references at face value without checking their
accuracy and whether there is, arising from that quotation, an argument in
favour of one’s client.
I need only remind the legal profession that ethics is one of the pillars on
which the profession stands. The court relies on the assistance given to it
by counsel in order to arrive at a correct decision. In this respect legal
practitioners are considered to be officers of the court and they are
expected to display honesty and a high degree of diligence and integrity
when appearing before the courts.

Executive Assistance Training Centre (Pvt) Ltd v ZESA Pension Fund HB-1-
2006
28 November 2005: 1st respondent filed an ex parte application in the
Provincial Magistrates’ Court, Matabeleland North
seeking the eviction of applicant from the leased
premises ... The court issued a rule nisi returnable to
the same court on 12 January 2006 calling upon
applicant to inter alia show cause why its lease
agreement with 1st respondent should not be cancelled
or terminated.
15 December 2005: Applicant anticipated the return day and filed its
opposition to the order sought by 1st respondent and
set the matter down for hearing in the same court on
 22 
 

15 December 2005. Judgment in that court was

reserved until 19 December 2005.
29 November 2005: Applicant filed the instant urgent chamber application
seeking interim relief couched in the following terms:
“Pending the finalisation of the matter, the applicant
be granted the following relief:
1. The purported summary termination of the lease
agreement between the applicant and 1st respondent
be and is hereby declared null and void for lack of
compliance with the lease agreement.
2. ...
3. ...
The basis of this application by the applicant was that it had already enrolled
students for the year 2006 to pursue their studies on the disputed leased
premises and that “expensive advertisements” to this effect had been placed in
copies of the Chronicle newspaper.
When the matter came up for argument before me on 16 December 2005
applicant’s counsel did not advise the court of the fact that the 1st respondent
had filed a similar case in the Magistrates’ Court seeking substantially the same
remedy like the one sought in this same court. Applicant’s counsel did not
advise the court that on 13 December 2005 he had prepared and filed court
papers in the lower court opposing the order sought by the 1st respondent.
Applicant’s counsel did not advise the court that he had personally appeared in
the lower court to defend the applicant’s position on 15 December 2005 and that
the lower court had reserved its ruling to 19 December 2005. To him it was
business as usual. There was nothing by way of supplementary affidavit from
his client to try and properly appraise this court of the other salient but
important features of this case.
Naturally when the two counsels for the respondents in the instant application
got the opportunity to address the court they attacked applicant’s counsel for not
being candid with the court by failing to disclose all material facts in this
matter.
Authorities are clear that litigants have a duty to disclose all material facts
which are relevant to their cases. The court must have a clear purview of the
issues before it. The duty to disclose is heavier on a legal practitioner because
he is an acknowledged officer of the court. He owes a concomitant duty to the
 23 
 

court. His natural position does not give him room to deceive or mislead the
court.
... whereas it is bad for a litigant to fail to disclose relevant facts, it is
unforgivable for a legal practitioner to conceal such information. In a proper
case such conduct must attract censorship from the Law Society. It is
dishonourable conduct.
The view the court takes in this matter is that this was not only a matter of non-
disclosure but a calculated manoeuvre to do so.
It is the view of this court that by adopting the approach he did applicant’s
counsel’s actions amounted to a fishing expedition. His actions were clearly an
abuse of court process.
What is even more disturbing in this matter is that when the other two counsel
for 1st, 2nd and 3rd respondents highlighted to applicant’s counsel about his
lack of professionalism he adopted a defensive attitude. He was unrepentant.
He remained intransigent.
On this basis alone I would not hesitate to dismiss the application with costs.
In the final analysis the court’s firm view is that the applicant’s application be
dismissed with costs.

Mapuranga v Mungate 1997 (1) ZLR 64 (H)

The plaintiff issued summons against the defendant, claiming damages for,
among other things, defamation, assault, false imprisonment and the
administration of a harmful concoction. The claims arose out of an incident at
the defendant’s house, where the defendant, in front of several other people,
accused the plaintiff of having committed adultery with the defendant’s wife.
When the plaintiff denied the allegation, he was assaulted by the defendant and
others, including the Defendant’s brother, then prevented from leaving the
defendant’s house before being forced into the defendant's car and taken against
his will to a traditional healer, where he was forced to drink a herbal concoction
which caused him to lose consciousness.
Mr Mungate called Media to say that she had had sexual intercourse with Mr
Mapuranga on three separate occasions when he was in Germany. He was
armed with an affidavit statement (Exhibit 5) with which to discredit her should
she not say what he wanted her to say. To his anticipated horror, she denied in
evidence that she had told him she was pregnant and that she had had sexual
intercourse with Mr Mapuranga.
 24 
 

The mere fact that the statement was taken in the form of an affidavit
suggested to me the existence of subtle coercion. Taking statements from
potential witnesses in the form of affidavits is generally frowned upon in
civil cases. In Hersman v Angilley 1936 CPD 386 Davies J delivered himself of
the following at pp 387-388:
“It has been stated time and again by judges of this court that witnesses’
statements should not be taken in the form of an affidavit upon oath. If it is
desired to have a record of what the witnesses states outside the court for one
reason or another, that purpose could just as well be served by taking the
statement in writing and getting the witnesses to sign it. There is no reason for
taking the evidence in such a case in the form of an affidavit upon oath
excepting presumably to frighten the witness later into not giving evidence at
all.”

S v Jakarasi 1983 (1) ZLR 218 (S)

I must make one final observation. The record reveals a most disturbing line of
cross-examination by the prosecutor, not only of the appellant himself but also
of the witness, Geza, who on the face of the record was patently not concerned
with the outcome of the prosecution against the appellant and who was also in
my view patently honest. The prosecutor throughout adopted a most offensive,
not to say oppressive, attitude, repeatedly calling both the appellant and Geza
liars, repeatedly asserting that prosecution witnesses had said that the appellant
was a liar when in fact they had said no such thing, and concluded his cross-
examination of Geza with this remark: “Just one final question Mr Geza. Why
did you come to court and perjure yourself like this?” It is unnecessary to
recount the evidence; it is sufficient for me to say that there was no justification
whatever for this kind of attack. I trust that prosecutors will remember that
they are officers of the Court, that their function does not give them licence
to be offensive and oppressive and that witnesses, including accused
persons, are entitled to the same courtesy from them as they are entitled to
expect from the witnesses. And I think it would not be out of place to remind
the magistrate, who in all other respect conducted the case with the utmost
fairness and indeed, as I have said, went out of his way to assist the appellant,
that witnesses, including accused persons, are entitled to the protection of the
court from the kind of cross-examination to which they were subjected in this
case. Magistrates should not be slow to stop practitioners on either side if they
exceed the bounds of propriety and courtesy; it is true that the magistrate did
 25 
 

somewhat belatedly question the relevance of the line of the prosecutor’s cross-
examination of Geza, but not before the witness had been subjected to what can
only be called an offensive cross-examination.

Sahawi Intl (Pty) Ltd v Bredenkamp HH-24-10

(Makarau JP) (Judgment delivered 2 February 2010)
The defendants’ counsel had been admitted as a legal practitioner in 1981
(having previously practised as an advocate, before the re-organisation of the
profession) but had moved to Cape Town in 2003. The plaintiffs’ legal
practitioners complained that he had been issued a practising certificate on the
basis of a misrepresentation that he was a partner in a law firm in Harare. They
also claimed that he no longer satisfied the residence requirements stipulated in
s 5 of the Legal Practitioners Act [Chapter 27.07].
They argued that he should not have been issued by the Law Society with a
practising certificate unless he was in possession of a residence exemption
certificate issued to him by the Minister of Justice. They contended that the loss
of normal residency in Zimbabwe by the defendants' counsel meant that he
automatically lost his right of audience before the courts in Zimbabwe. They
contended that any person can approach the courts for an order denying him
such right. In making the complaint, the plaintiff's legal practitioners wrote to
the Law Society and to the Minister, with copies being sent to the presiding
judge.
Held: (1) It is a trite rule of professional ethics that the parties to litigation do
not enter into any correspondence with the presiding judge. All correspondence
to and from the court should be through the office of the Registrar. While the
plaintiffs had every right to write to the Minister in connection with the matter,
the fact that such a letter was copied to the presiding judge acted as an open
invitation to the Minister to enter into direct correspondence with the court.
Although the Minister correctly addressed his comments to the Registrar and
not directly to the judge, the contents of the letter, which were meant for the
judge's attention, ought to have been placed before the court in the form of an
affidavit and not an unsworn statement. The letter gave an opinion on the
applicable law and the interpretation to be placed on that law.

Nyoni v Elmissing HB-38-09

(Cheda J) (Judgment delivered 2 April 2009)
 26 
 

A legal practitioner must avoid all conduct which, if known, could damage his
reputation as an honourable citizen. He has a duty to act honestly and fairly at
all times. In addition, he must always be truthful and candid in all his dealings.
Lawyers, as officers of the court, have an unfailing duty to obey court orders
and should not be seen to be assisting litigants in disobedience. Where this
occurs, costs de bonis propriis against the practitioner are appropriate.

DUTY TO THE CLIENT

Mavheya v Mutangiri 1997 (2) ZLR 462 (H)
The plaintiff applied for default judgment in an action instituted for damages for
bodily injury arising out of a road traffic accident. The summons gave no
particulars, nor did it disclose a cause of action. The declaration set out various
sums claimed for general and special damages, but did not set out the special
damages with any particularity. There was no description of the accident, nor of
the subsequent events:
The lawyer presenting the claim for default judgment should have been
prepared, ideally with properly researched heads of argument, to address the
court on all the issues, citing authority on the subject of general damages; net
capitalization rates or discount rates adopted; contingency reductions applied;
account taken of taxation; and assumptions made as to relevant future events.
Concepts such as these, however, are evidently utterly foreign to the lawyers
concerned.
A legal practitioner owes his client a duty to exercise reasonable professional
competence and diligence in pursuit of his client’s instructions. I cannot
understand how any attorney in a general practice would consider it reasonably
diligent and competent for himself to engage upon the specialized pleading,
preparation and presentation of a claim such as this without taking the opinion
of a specialist. Particularly when the attorney is one lacking experience in the
relevant field, counsel’s advice on quantification of loss should have been
sought prior to (and preferable as part of) the drafting of the declaration. The
diligent attorney would have sought similar advice regarding the presentation of
the claim and would properly have briefed counsel to do so. Although one
might enjoy a right of audience, it is by no means sensible, and may be
positively unprofessional, to undertake work beyond one's experience or
expertise, or even beyond one's time and resources for research and preparation.
The extremely low standard of work encountered in this case, which regrettably
is by no means unusual, causes one to ponder on the whole policy pertaining to
 27 
 

the right of audience in this court. Graduates of the local university have the
privilege of being entitled to obtain admission to the profession purely on the
basis of their degrees. Foreign graduates, even those with impeccable academic
qualifications from universities in jurisdictions applying the Roman-Dutch law
of this country, must undergo further professional examinations before
admission. Not only may local graduates obtain automatic admission, but
immediately upon being registered as legal practitioners, they may (and
unfortunately do) purport to appear in any court, even the Supreme Court, on
the most complicated and important of matters. Such newly admitted persons,
as this case shows, lack the knowledge, experience and professionalism to be
effective advocates. They are frequently a downfall to their clients and a
hindrance to the administration of justice. Yet with time and experience they
could become paragons of the profession. That experience cannot
conscientiously be obtained by immediate entry to practice at the highest level
of the profession. It seems to me that earnest consideration must be given to the
institution of a graded series of practising certificates for the differing levels of
court. Issue of certificates to practise in the higher courts should be permitted
only upon completion of a satisfactory period of practice at lower levels and
should be subject to periodical review or renewal. Only thus can one encourage
the attainment of the highest standards within the profession. Only thus can
public confidence in the profession and the administration of justice be earned.

Pertsillis v Calcaterra 1999 (1) ZLR 70 (H)

A partner in a law firm had acted at different times for all three persons
involved in the current litigation, namely the applicant and the two respondents.
Acting in accordance with proper ethical standards, the partner had declined to
act for any of the parties in respect of the present litigation. However, a legal
practitioner employed by the partner’s law firm was engaged to act for the
respondents. The applicant's legal practitioner objected to the employee of the
same law firm as the partner who had recused himself representing the
respondents.
The applicant, who owned one-third of the shares in a company, sought an order
that he be accepted as the managing director, company secretary and public
officer and as a signatory in the company:
Prior to the hearing of the application, Mr Samkange filed heads of argument on
behalf of the respondents. At the hearing, Mr Gijima objected to Mr Samkange
appearing on behalf of the respondent, since he is employed by the firm of
 28 
 

Byron Venturas & Partners and Mr Venturas had, in the past, acted for all three
parties. He referred to a letter, dated 18 November 1987, which was written by
Mr Venturas and addressed to the secretary of NBC, in which Mr Venturas said
that he had been approached by NBC and Pertsilis with regard to the impasse
between the three parties and continued – “I have acted for all three parties from
time to time and, to avoid any misunderstanding in the event that any party
desires to litigate, I will not act for any party and you will, therefore, have to
seek alternative legal representation”. Mr Gijima argued that the stand taken by
Mr Venturas was entirely ethical and appropriate in the circumstances and that
when Mr Venturas said that he could not act for any party, that meant that his
firm, likewise, could not act for any party. Mr Gijima argued that it would be
unethical for Mr Samkange to appear on behalf of the respondents. He referred
the court to the cases of R v Chisvo 1968 (2) RLR 54 (A), Robinson v van
Hulsteyn 1925 AD 12 and Benmac Mfg Co (Pvt) Ltd v Angelique Entprs (Pvt)
Ltd 1988 (2) ZLR 52 (H).
Mr Samkange argued that it was Mr Venturas who had been involved with the
parties and had acted for each of them. He, personally, had not had any previous
contact with the parties until the respondents approached him in this matter. Mr
Venturas was outside the country and had been away since before the
respondents approached him and so he had not discussed the matter with Mr
Venturas, neither had he looked at any files in the office containing papers
relating to any of the parties. He contended that the assertion by Mr Venturas, in
his letter dated 18 November 1987, that if any of the parties wanted to litigate
he would not act for that party, did not extend to other members or employees
of his firm; it was personal and applied only to the author of the letter.
Legal practitioners owe their clients a duty of loyalty. They are duty bound to
advance and defend their client's interests. A legal practitioner is expected to
devote his or her energy, intelligence, skill and personal commitment to the
single goal of furthering the client’s interests as those are ultimately defined by
the client. A legal practitioner who represents the adversary of his own client in
litigation would clearly be violating his or her duty of loyalty and the common
law rules against conflict of interests.
The Guide to The Professional Conduct of Solicitors issued by The Council of
the Law Society of England states:
“... where a solicitor acts for one client and is asked to act for another client
whose interests conflict or appear likely to conflict with those of the first client,
he must refuse to act for the second client. On the basis of the principle that
 29 
 

‘justice should not only be done, but should manifestly and undoubtedly be seen
to be done’, a solicitor must decline or cease to act not only where the interests
of a client are prejudiced if the solicitor continues to act for the other client but
also where that client’s interests might appear to be prejudiced.”
It is for the court to regulate the conduct of legal practitioners and to ensure that
they comply with the high standards that are required of them. In this case, the
position adopted by Mr Venturas is entirely proper and ethical. As he rightly
pointed out, he could not act for any of the parties in litigation inter se.
Furthermore, I consider that the position he adopted must extend to any partner
or employee of his. Justice must not only be done; it must manifestly and
undoubtedly be seen to be done. It would be no consolation, in my opinion, for
a litigant to be told that the legal practitioner who is appearing for his opponent
is not the legal practitioner who formerly acted for him, it is only his partner or
his employee. If one member or employee of a legal firm has appeared for a
litigant, the litigant would be fully justified, I feel, in fearing that his interests
would be prejudiced if another member or employee of the same firm acted for
an opponent of his in any litigation.
Ordinarily, therefore, I would have held that Mr Samkange could not appear for
the respondents. However, this is an application which was brought as an urgent
application. There is no allegation by Pertsilis that Mr Samkange had acquired
information from papers in the possession of his firm which could be used to
Pertsilis’ disadvantage or that there would be any “real mischief and real
prejudice” that would in all probability result if Mr Samkange were allowed to
continue to act for the respondents. Furthermore, as Mr Gijima said that he had
no objection to the opposing papers and heads of argument prepared by Mr
Samkange being accepted, I considered that there could be no prejudice to
Pertsilis if I allowed Mr Samkange to be heard. After all, he could not introduce
any evidence “from the bar” and could only make submissions on the papers
already filed.

Longhurst NO v Lee HB-29-06

Counsel for the applicant had formerly drafted heads of argument on behalf of
the third respondent. She did so from pleadings filed of record. She did not,
however, have access to the instructing legal practitioner’s files. She did not
interview the third respondent. In the current application she was instructed to
appear on behalf of the applicant who was suing, inter alios, the third
respondent concerning the same property and the same facts placed before her
 30 
 

on behalf of the third respondent. Held: it is manifestly incorrect for a legal

practitioner to utilise in favour of one client information gleaned from another
client. While having confidence that the applicant’s counsel would not use
information gleaned from the third respondent to advance the applicant’s case,
nothing should be done which creates even a suspicion that there has been an
improper interference with the course of justice. The courts have to regulate the
conduct of legal practitioners and ensure that they comply with the high
standards that are required of them. Justice must not only be done but it must
manifestly be seen to be done. A legal practitioner must therefore decline or
cease to act, not only where the interests of a former client are actually
prejudiced if the legal practitioner continues to act for the other client, but also
where the former client’s interests might appear to be prejudiced.

Towers v Chitapa 1996 (2) ZLR 261 (H)

Before concluding this judgment I have, reluctantly, to say something
concerning professional ethics. The defendant has throughout been represented
by Messrs S Ahmed & Associates. This firm of attorneys has in addition acted
for Mrs Kamangwana in all her proceedings against the plaintiff. The defendant
appears to have had independent advice from lawyers only once at the very
inception of the dispute with the plaintiff and was, on her evidence, apparently
advised nothing more than that if the plaintiff’s claim were true then the
defendant would be evicted by her. The defendant was, on the evidence,
introduced to her present attorneys, by Mrs Kamangwana, for whom they were
already acting. She has never been advised by these attorneys of a possible
conflict of interest between herself and Mrs Kamangwana. Not until Mr Girach
was instructed for her, a scant month before the trial commenced, was she
advised of the possibility, far less the desirability, of joining Mrs Kamangwana
as a third party for an indemnity or contribution.
It appears to me that the defendant’s attorneys have allowed themselves to act,
to the defendant’s prejudice, in a case where there is the clearest conflict of
interest between the defendant and Mrs Kamangwana. The attorneys should
never have allowed this to happen. It was unprofessional. A legal practitioner
has the clamant of duties not to act for parties with conflicting interests. His
duty to place his best endeavours at the service of a client necessarily precludes
him from exerting those efforts for another whose interests oppose the first
client. Although in some cases it may be appropriate to make disclosure of the
conflict and to continue to act with the parties’ consent in others, it is improper
 31 
 

even to seek that consent. As a result of what has happened, the defendant will
now have a judgment against her which is enforceable whereas had she been
advised timeously of her rights, show would, 1 think inevitably, have been able
to claim an indemnity from Mrs Kamangwana. That she would have made such
a claim is clear from her answers to questions which I put to the defendant.
I was sufficiently alarmed at the close of the case at this apparently questionable
conduct to direct that the attorneys should appear to explain why they had acted
as they did and to satisfy me as to whether an order of costs ought not to be
made against them. There was no such appearance, Mr Girach informed me that
despite attempts made by himself, between my making the direction at the close
of evidence and the hearing of argument, he had been unable to communicate
with his instructing attorneys. No explanation has since been placed before me.
In the absence of that explanation, 1 am unable to draw any conclusion other
than that the defendant was not properly advised of her rights by her attorneys
who wrongly accepted instructions from her when they owed a conflicting duty
to their existing client, Mrs Kamangwana. In the circumstances, I consider a
mark of disapproval to be warranted and will make it in an order of costs. I will
order that the defendant's attorneys should recover no remuneration for
themselves from the defendant, without resorting to the more dire expedient of
awarding costs de bonis propriis. Since this order is given without hearing any
explanation from the attorneys, 1 will give leave to them to show cause, if so
advised, within 30 days of the judgment, why this order should not be
rescinded.
In the result, I order judgment for the plaintiff in the sum of $29 900 and costs
of suit. The defendant’s attorneys of record are to recover no fees or costs from
the defendant, save in respect of the plaintiffs taxed costs of suit and for
necessary disbursements incurred on the defendant's behalf, including counsel's
fees on brief. Leave is given to the defendant’s attorneys of record, would they
be advised to do so, to show good cause, by chamber application not later than
30 days from the date of this judgment, for the rescission of this punitive order
of costs.
Mugabe & Partners, plaintiff’s legal practitioners
Sengwayo, Mwonzuro & Partners, defendant’s legal practitioners

Pocock v AFC 1995 (2) ZLR 365 (S)

In response to a claim for a debt, the defendant filed a special plea in abatement
alleging prescription. The court a quo held that prescription had been
 32 
 

interrupted by an acknowledgement of the indebtedness of the defendant made

by his advocate before the expiry of the period of prescription. On appeal, the
central issue was whether the acknowledgement of indebtedness had been made
before or after the expiration of the period of prescription. Neither the
defendant’s nor plaintiff’s advocates could clearly recollect the date of the
acknowledgement, although plaintiff’s advocate thought it was made some
months after the expiry of the prescription. However, a file note had been
tendered in evidence from the legal practitioner acting for the plaintiff. This file
note gave the date of the acknowledgement as just one month before the expiry
of the prescription period. The legal practitioner was not called to give evidence
on oath and to submit himself to cross-examination, despite there being no
suggestion that he was not available to give such evidence. The defendant’s
lawyers admitted that they were aware that the prescription deadline was fast
approaching and were happy to extend the negotiating period while the other
side were apparently unaware of the prescription precipice ahead:
We have given some thought to the ethics of such conduct. While it does leave
one with a feeling of unease, I do not think it can be described as unethical. The
Act itself provides, in s 20(1), that “no court shall of its own motion take notice
of prescription”. It is for the party whose debt has been outstanding for longer
than the period of prescription to raise the defence. If he does not, judgment will
go against him. By parity of reasoning, it seems to me, it is for the creditor to
ensure that his claim is not prescribed. It is not for his opponent to remind him
of that danger. So long as nothing was done positively to mislead the creditor,
there would have been no breach of ethics.
One cannot compare the situation with that in which counsel has a duty to bring
to the attention of his opponent, or the court, a decision which favours his
opponent.

In re Chivaura HB-113-10
(Cheda J) (Judgment delivered 7 October 2010)
A legal practitioner was assigned a criminal case, in which he was to represent
the accused pro Deo. He submitted a detailed outline of the defence case. When
the date of trial came, it emerged that the practitioner had not at any time seen
the accused or taken instructions from him; the outline of the defence case was
based upon the accused's statement to the police.
Held: the legal profession requires honesty, integrity and professionalism. A
legal practitioner should be truthful, candid and fair in all his dealings with both
 33 
 

his client and the court. Counsel allocated a pro Deo matter is expected to
represent the accused to the best of his ability. A charge of murder is one of the
most serious charges an accused person can face, as, upon conviction, he can
receive capital punishment. For that reason, the legal practitioner representing
such a person should apply his entire mind to the case before him and employ
all his skills in order to assist his client. He is enjoined to personally take
instructions from the accused who is his client. Failure to perform his duty with
diligence and competence amounts to negligence and may amount to
misconduct if it has a sting of impropriety. With regard to taking instructions, a
legal practitioner must be reasonably satisfied of both the client's identity and
his mental capacity. This makes it essential that he should see the client
personally. He also has a duty to advise his client on any aspects which call for
advice. The advice must be given with complete frankness and honesty. This
duty cannot be performed if he does not see the client. A legal practitioner who
misrepresents a client in the way happened here is prima facie guilty of
unbecoming and unprofessional conduct.

DUTY TO OTHER PRACTITIONERS AND TO THE PROFESSION

Founders Building Society v Dalib (Pvt) Ltd 1998 (1) ZLR 526 (H)
The applicant instituted proceedings by way of summons against a company, as
principal debtor, and three sureties (each co-principal debtors). It is seeking to
foreclose on a mortgage bond. Summons was served on 13 January 1998. No
appearance to defend was entered in the form prescribed by the rules of court.
Nevertheless, on 16 January attorneys purported to file a notice of assumption
of agency for the defendants.
The filing of the notice of assumption of agency seems to have been intended as
an attempt to enter an appearance but was obviously inadequate for that
purpose. On the same day, the attorneys also filed a request for further
particulars, thereby confirming the intention to defend, but still without entering
appearance. The plaintiff’s attorneys have simply ignored these two proceedings
and have applied for judgment in default of entry of appearance to defend.
It is true that strictly, according to the rules of court, the defendants are barred.
The bar in this case is automatic. There is no need to give prior notice of
intention to bar. The effect of a bar is that application for default judgment may
be made without further notice to the defendants. Applied according to the
letter, this rule has the effect that the entry of appearance in an irregular manner;
 34 
 

an entry without notice in prescribed form to the plaintiff; late entry; or entry
that is in any other way technically deficient, results in the automatic bar.
Many attorneys, seeing an oversight or irregularity of this nature from a
colleague whom they regard as a peer, would take the trouble and courtesy
to address to the errant opposite number a memorandum, drawing
attention to the cause for complaint and calling upon him, or her, to
regularise the matter. Such an attitude is to be expected, not from just a
few, but from all, legal practitioners, towards all other legal practitioners.
It is part of the duty that a legal practitioner has to other lawyers. This
duty is put in a nutshell:
“Every legal practitioner has a duty to behave fairly and honestly towards other
legal practitioners. The legal practitioner on the other side is only trying to do
his best for his client and it is desirable that legal practitioners co-operate as
much as possible.”
The courtesy of giving fair warning to other lawyers of an intention to take
a technical point is one rather jealously guarded by the profession. One
knows of a standard question, put to all those who are obliged to take the
professional oral examination in ethics. It is designed to elicit the response
that the failure to give fair warning, before steps are taken, for instance, to
bar an opponent or to take a technical point, is a discourtesy. It may result
in an adverse order of costs against an attorney should costs be incurred in
undoing what was done without warning.
How does one apply that principle to this case? Should judgment be given in
default, the court deeming it proper to ignore the defective proceeding,
notwithstanding its existence on file, then application will be made for the
rescission of the default judgment. If that application is unopposed, then that
would demonstrate the lack of advantage or good sense in ever having taken the
judgment at all. Unnecessary costs in preparing the application for rescission
will have been incurred by the defendant, and the substantial cause of them will
have been the lack of consideration, or even the obduracy, of the plaintiff’s
attorney. Should the application be opposed then the costs incurred will have
been all the greater. In the event that the opposed application is granted, then
where will those costs fall? In my estimation, the plaintiff, and his attorney,
would be very fortunate indeed, should the court not conclude that they have
“snatched at a judgment”. In addition to the question of costs, there is also the
disadvantage of the consequential delay in obtaining judgment. In the event that
the application for rescission were to fail, then that would demonstrate a
 35 
 

defence so lacking that the giving of warning by the plaintiff’s attorneys would
not have prejudiced the plaintiff at all. In this case, I consider that fair dealing
requires at least that courteous warning be given of an intention to make the
appropriate application, should the technically barred opponent not take steps
to cure the irregularity.
I therefore hold as follows. In any action, where the plaintiff’s legal practitioner
contemplates an application for default judgment, but is aware of some
proceeding taken by the defendant, being an attempt at opposition, which does
not constitute due and regular entry of appearance to defend, he ought to
address to the defendant or his legal practitioner due warning of the irregularity
of the offending procedural step. Having done so, he may then choose between
an application for default judgment or an application, on notice to the defendant,
to strike out the irregular proceeding - which latter application may be
conjoined with an application for default judgment.
Conversely, the party who proceeds to claim default judgment in circumstances
where he may be accused of snatching at a judgment may well be held
accountable for unnecessary proceedings generated by his deviousness or
pigheadedness. Where the plaintiff is unaware of an irregular opposition which
exists on file when he claims default judgment, then this may well be drawn to
his attention, either by the registrar or by the judge before whom the matter is
placed, and he may expect a direction to cause any such irregular proceeding to
be struck out.
In this case, I consider the intimation of an intention to defend to be
unequivocal. Irregular it may be, but ignoring it would not be justified. I
consider that the most expedient course would be to require the plaintiff to
remove the obstacle to judgment. The failure of the plaintiff to give warning to
the defendant of the intention to ignore the irregular proceeding I regard as
undesirable. It warrants an adverse order of costs. However I will not punish the
attorneys with those costs, but prefer to regard this judgment as due notice to
the profession of the standard of conduct expected.
It is accordingly ordered as follows:
1. Default judgment is refused.
2. The plaintiff is directed to make application, on notice to the defendant,
for an order striking out the irregular proceedings and claiming judgment
in default of appearance.
 36 
 

3. All costs incurred between the date of the application for default
judgment, namely 5 February 1998 and the date hereof, are to be borne
by the plaintiff.

STATUTORY DUTIES OF A LEGAL PRACTITIONER

Law Society of Zimbabwe v Lake 1988 (1) ZLR 168 (S)
The respondent was a registered legal practitioner who, until 30 September
1983, was a partner in a firm of legal practitioners in Harare. In November 1983
he commenced full-time employment with a commercial company as its group
legal adviser. Shortly afterwards, he enquired of the Law Society as to its
opinion of the propriety of his appearing in court or undertaking conveyancing
work on behalf of his employer. The Law Society replied that if the respondent
were to undertake either of these tasks he would be guilty of unprofessional
conduct because either (a) s 23(1)(n) of the Legal Practitioners Act 1981
effectively declared such activities unprofessional in the respondent’s
circumstances or (b) the Council of the Society took the view, as it was entitled
to under s 23(2)(b) of the Act, that those activities would constitute
unprofessional conduct.
The respondent was dissatisfied with this opinion and sought an order declaring
that he was authorised to perform the activities in question. Ebrahim J refused
the application insofar as it related to the respondent appearing in court, but
granted an order allowing the respondent to act as a conveyancer on behalf of
his employer. The Law Society appealed and the respondent cross-appealed
against the ruling of Ebrahim J:
Both the appeal and the cross-appeal turn upon a construction of s 8 as read
with s 23(1)(n) of the Act, and it is as well at the outset to quote these
provisions in their entirety. Section 8 reads:
8. (1) Subject to the provisions of this Act, a registered legal practitioner may
practise the profession of law.
(2) Without derogation from the generality of subsection (1), but subject to the
provisions of this Act, a registered legal practitioner-
(a) shall have the right of audience in any court in which persons are entitled by
law to legal representation;
(b) may prepare any document for registration in a deeds registry or for
attestation or execution by a registrar of deeds;
(c) may execute, attest and authenticate any thing which is required to be
executed, attested or authenticated by a notary public, and any thing so
 37 
 

executed, attested or authenticated shall, for all purposes, have the same force
and effect as if it had been executed, attested or authenticated, as the case may
be, by a notary public.

Section 23(1) enumerates acts which constitute unprofessional, dishonourable

or unworthy conduct on the part of the registered legal practitioner. Paragraph
(n) thereof specifies as such conduct that which involves the -
“entering into or continuing to be a party to any contract or arrangement with an
unregistered person, the effect of which is to place the legal practitioner under
such control on the part of the unregistered person as may interfere with his
professional independence.”

The proper question therefore before the court a quo was simply whether the
performance by the respondent of the activities described in s 8(2)(a) and (b) of
the Act, within the course and scope of his full-time employment by a person
who is not a registered legal practitioner, would constitute unprofessional
conduct on his part.
... if the respondent were to perform any of the reserved work specified in
paragraphs (a), (b) and (c) of s 8(2) of the Act, he would be practising the
profession of law, even though he does not otherwise hold himself out to the
public as so doing.
Against this contextual background, and with special regard to the nexus with s
8 of the Act, the phrase “his professional independence” in paragraph (n) of s
23(1) can only be taken to mean the independence of the registered legal
practitioner whilst practising the profession of law within the meaning of the
Act. If the effect of being a party to a contract or arrangement with an
unregistered person is to place the registered legal practitioner under such
control as may interfere with his independence whilst practising the profession
of law (in the respondent's case, performing reserved work), then the entering
into or continuance thereof will constitute unprofessional conduct.
The integrity of the individual registered legal practitioner is not an apposite
criterion. It is the degree of control to which he is liable that is in issue. If it is
such that it may (not must) interfere with his professional independence, it is
forbidden. The test is objective. One looks at the nature of the contract or
arrangement and asks whether by virtue of it the legal practitioner has placed
himself in a position which is calculated to impair his independence in the
practice of the profession of law. It is not only the likelihood of active
 38 
 

interference that must be guarded against, but also ... the ambience in which the
legal practitioner is cushioned by the nature of the contract or arrangement; the
temptation upon him to show himself up in a good light with his employer, to
attract the latter’s goodwill upon which he is dependent, and so bend the rules.
It is this insidious temptation that the Legislature has deemed fit to remove by
enacting s 23(1)(n).
I think it a fair proposition that any non-registered person who takes into
his employ a registered legal practitioner in order that he may practise the
profession of law on his behalf poses a potential threat to the professional
independence of the practitioner. The mere fact that the practitioner
subordinates himself as a servant puts his independence in the practice of
his profession in jeopardy.
For these reasons I am of the opinion that the court a quo erred in declaring the
respondent at liberty to perform the activities specified in para (b) of s 8(2) of
the Act.
Appeal and cross-appeal dismissed.

Mitchell v Estate Agents Council 1996 (1) ZLR 222 (S)

The appellant was an estate agent. She was charged before the Estate Agents
Council with six counts of disgraceful conduct ... The most serious allegation
was that, having received two deposits of money totalling nearly $650 000,
which were intended to be spent on the purchase of a town house, she failed to
deposit them in her agency's trust account within six days, but instead deposited
them in its ordinary business account, which was, at the time, overdrawn to the
extent of nearly $432 000. On this count the Council ordered the cancellation of
her registration as an estate agent. It was argued on her behalf that it was not
obligatory for her to deposit the money in her trust account because the client
himself did not object to what she did. It was also argued that the fact that the
money was paid for the purchase of a specific property did not necessarily make
it trust money. Finally, it was argued that the Council misdirected itself in not
considering a lower penalty:
Mrs Mitchell has put forward various justifications for this action. Her main
defence is that she received the funds in her personal capacity with a complete
discretion as to what to do. While she conceded that the client did not know at
the outset that she had paid them into a business account, he had no objection to
her having done so when subsequently informed. He was paid a handsome rate
of interest and his money has since been refunded.
 39 
 

One must begin from the premise that the purpose of enacting the Estate Agents
Act ... was to enforce standards of professionalism in the real estate business.
The Act set up an Estate Agents Council and an estate agents compensation
fund. It provided for "the registration and regulation of the practice of estate
agents in Zimbabwe" and for the regulation of ‘the keeping of moneys held by
estate agents on behalf of other persons’.
Central to the whole concept of professionalism in the handling of clients'
money is the trust account. Whether one is speaking of lawyers, accountants or
estate agents, the principle is the same. Clients must know, with absolute
conviction, that their money is safe. The machinery which has developed to
ensure that safety is the trust account system.
The unwillingness of the client to give evidence, despite his having been
subpoenaed by the Council, does not help Mrs Mitchell's case. She agreed
specifically that he sent her the money for the purchase of a town house. That is
all that matters. The fact that subsequently he did not object to the way she
handled his money is irrelevant. The standards for the conduct of estate agents
are set by the legislation, not by the client.
Appeal dismissed in relation to this count.

Manyika v Manyika 1983 (2) ZLR 198 (H)

The applicant’s legal practitioner, a professional assistant in a firm of legal
practitioners, attested the affidavits made in support of her motion, as well as
appearing for the applicant in court. The question arose whether she had an
‘interest’ in the matter and was, by virtue of the provisions of s 2(1) of the
Justices of the Peace and Commissioners of Oaths (General) Regulations, 1975
(RGN 1205 of 1975) precluded from attesting the affidavits. The second
question to be decided was the effect of attestation by a disqualified
commissioner.
I have no doubt whatever that this is too restricted a view of the effect of these
Regulations. In the first place, I do not think it correct to say that a professional
assistant has no financial interest in the proceedings he conducts, because if he
does not conduct such proceedings there will be no fees paid by the client, and
if there are no fees paid by the client there will be no salary for the assistant. So,
while the financial interest is less direct than that of a partner, it is nevertheless
very tangible and present in the situation of an employee. But, more important,
and in the second place, it is not only a financial interest that affects the
attesting of oaths in legal proceedings, as Mrs Ziumbe seemed to think. The
 40 
 

subsection prohibits the attesting of an affidavit in proceedings in which the

commissioner of oaths has any interest - financial or other pertinent kind.
In the result, I have no doubt that the legal practitioner who here acted for the
applicant and attested her affidavits in these proceedings, was disqualified from
doing so.
That being so, what is the effect of such attestation by a disqualified
commissioner of oaths? There is considerable authority, to say the least, that a
prohibition couched in a negative form is to be regarded as peremptory rather
than directory, particularly when reinforced, as is the case here, by the use of
the word ‘shall’ in the prohibition in question. These considerations apply
exactly to the words and effect of this Regulation, and as a result the affidavits
supporting the applicant’s notice of motion must be regarded as invalid.

Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (S)

The Legal Practitioners Disciplinary Tribunal (“the Tribunal”) decided, on 6
September 1993, that the appellant had been guilty of unprofessional,
dishonourable or unworthy conduct, in that he had misappropriated clients’ trust
funds, and in consequence ordered that ... his name be deleted from the register
of legal practitioners.
The appellant challenges the findings of the Tribunal, on the ground that the
Tribunal failed to put his position in proper perspective, and the sentence
imposed, on the basis that the Tribunal gave insufficient weight to the
mitigatory factors and over-emphasised the factors of aggravation.
[the facts of the case can better be captured by aid of a timeline]
26 August 1991: Mr Sibanda (the client), who was the purchaser in a
conveyancing transaction, complained to the Law Society of
Zimbabwe (the Law Society) that he was dissatisfied with
the lack of expedition with which the appellant was
attending to the transfer and he suspected that the appellant
had used the money deposited with him in pursuance of the
transaction for his own purposes.
18 October 1991: The appellant’s gave his initial explanation by letter,
categorically denying acting in an unethical manner or in any
way likely to prejudice the parties involved in the
transaction, satisfied the Law Society, but not Mr Sibanda.
 41 
 

29 January 1992: The client wrote to the appellant asking him to account for
the use of the sum of $8 000 deposited with his practice to
cover the transaction.
9 March 1992: The appellant did not reply to the client’s query. The client
again raised the matter with the Law Society in a letter to
which he attached the ledger cards of the appellant
pertaining to the payment by him of the sum of $8 000 to the
appellant's practice. He drew attention to cheque transactions
on those ledgers which he concluded effectively wiped out
his deposit.
1 April 1992: The Secretary of the Law Society, by a letter informed the
appellant of the nature of the client's complaint and required
him to reply thereto within fourteen days. He was also asked
to explain, if the account he paid the client's cheque into was
his trust account, why it was not designated as such in terms
of the provisions of the Act; and if it was not his trust
account, why the deposit of $8 000 was not paid into his
trust account. He was further called upon, in either event, to
explain why other cheques were drawn on the account which
had the effect of using up the deposit made by the client
when those withdrawals had nothing to do with the
transaction for which the client had deposited the funds, thus
effectively resulting in misappropriation of his client's trust
money.
6 April 1992: The appellant replied to the secretary. He said due to the
turnover of staff in “his establishment” efforts to trace the
client’s letter of 29 January 1992 had proved fruitless and
that he desired a copy of Mr the client’s letter to enable him
to respond on the merits.
29 April 1992: The Secretary of the Law Society courteously furnished the
appellant with a copy of the client’s letter of 29 January
1992. The appellant acknowledged receipt of a copy of the
letter and asked, not for a copy, but the annexure of the bank
record attached to the client’s said letter.
18 May 1992: The secretary’s reply to the appellant was that: “I refer to
your letter of 29 April. You do not need any annexure to
respond to the questions I have raised. I am seeking
 42 
 

information in relation to your trust account in respect of

which you are supposed to be keeping proper records. Please
let me have your response to the questions raised by return.”
8 June 1992: The appellant wrote to the Secretary insisting,
notwithstanding his being furnished with a copy of the
client’s letter, that unless he was yinformed of the client’s
full complaint, of which annexures of his trust account
formed a part, he could not respond to the Secretary’s
request.
10 November 1992: Appellant informed that auditors had been appointed
to go through his trust books. The appellant did not
cooperate with the auditors.
8 February 1993: The appellant wrote to the Secretary to say that unless and
until he had been advised of a resolution of the Council of
the Law Society competently made, he would not consider
having a special trust account audit carried out.
2 April 1993: The Law Society made an urgent chamber application at the
High Court to compel appellant to submit to an audit of his
books.
12 May 1993: The auditors issue a report that: “We do not have the full
trust client liability at that stage but based solely on the $8
000 there was a shortfall of $8 170,26 on 31 October 1990.”
17 May 1993: The appellant admitted in his counterstatement in response
to the application to have his name deleted from the register
of legal practitioners, that he used the deposit paid by the
client for purposes other than those intended without the
consent of the client.
In criminal law a trustee who fraudulently appropriates money or other property
held in trust is guilty of theft.
The only reasonable inference from the facts above recounted, coupled with the
fact that it took the appellant two years to respond to the simple query by the
respondent as to what had happened to the client’s deposit, is that he knew all
along that he had misappropriated the client’s trust funds and was not prepared
to divulge such information to the respondent. He therefore resorted to every
ruse, including outright defiance of the respondent, to cover up his defalcations.
It is undoubtedly an offence if trust money is withdrawn for a purpose other
than that authorised by the trust creditor.
 43 
 

In the first place, lawyers as a professional class live by their own high code of
ethics and their own moral standards. Every legal practitioner owes a duty to his
colleagues to uphold those standards of the profession to which he belongs.
Secondly, if legal practitioners, as a professional group, are to earn a respected
position as guardians, not only of the public, but also of private, interest, then
every legal practitioner must live up to the principles of decency in the
relationship of a trustee to the goods and monies entrusted to him by the person
who has sought his protection. A legal practitioner who breaches this trust casts
a shadow on the good name of the rest, and also remains a danger to the
unsuspecting public, unless his name is expunged from the register of legal
practitioners.
The deficiency we are here concerned with is not insignificant. Putting aside for
the moment the appellant’s lack of transparency in his dealings with the
respondent, as well as his intransigence and obduracy, we find no basis for the
criticism that, in imposing the penalty it did, the Tribunal failed to distinguish
the appellant's case from the more serious cases before it.
In applications by the Law Society for disciplinary action to be taken against a
member, the paramount considerations are maintaining the integrity, dignity and
the respect the public must have for officers of the court, no less than the Law
Society’s desire to protect members of the public from unscrupulous persons
operating behind the colour of their profession. The question is: is the appellant
a fit and proper person to be a member of the honourable Society? Any
colourable conduct sufficiently grave to attract popular dissatisfaction with the
profession must be visited with sanctions befitting such conduct.
We are in no doubt that a legal practitioner who misappropriates his client's
funds is not a fit and proper person to be placed in the position of trust and
confidentiality to which his enrolment as a member of the Law Society elevates
him.
A few unworthy practitioners should no longer be allowed to hurt the good
name of the rest. The Law Society is justified in expunging the name of any
member who, in the name of the profession, preys upon the credulity of
members of the public to their detriment.
Appeal dismissed.

Mugabe v Law Society of Zimbabwe 1994 (2) ZLR 356 (S)

On 16 December 1993, the Legal Practitioners Disciplinary Tribunal (the
Tribunal), upon application presented by the Law Society of Zimbabwe (the
 44 
 

Society), declared the appellants guilty of unprofessional, dishonourable or

unworthy conduct and ordered:
(a) that the names of the appellants be deleted from the Register of Legal
Practitioners, Notaries Public and Conveyancers ...
Aggrieved and dissatisfied with the findings of the Tribunal and the orders
made consequent thereupon, the appellants lodged separate appeals challenging
the conclusions arrived at by the Tribunal from the evidence placed before it,
resulting in the imposition of penalties, which the appellants aver, are far more
excessive than were warranted by the proven facts.
There remains the unexplained shortfall of $38 604 which appears in the second
special trust audit carried out by Deloitte & Touche. This raises squarely the
issue of the burden of proof in matters coming before the Disciplinary Tribunal
of the Law Society.
It seems to me, from a perusal of the authorities, that the burden of proof varies
with the gravity of the offence charged. Where the offence has strong criminal
connotations the burden, as submitted by counsel for the appellants, is on the
Society to prove its case beyond reasonable doubt. On the other hand, where the
offence bears no criminal implication, the burden is the ordinary civil one of a
balance of probabilities.
In Pitluk v Law Soc of Rhodesia Beadle CJ reflected that:
“I think, however, that in order to remove any difficulty in deciding whether an
allegation involves professional misconduct simpliciter or where an allegation
involves an element of deceit or moral turpitude of a high order some indication
should be given as to where to draw the line.”
The learned Chief Justice then advised:
“The line, I consider, can appropriately be drawn between those allegations
which might make the accused liable to criminal prosecution and those which
might not. For example, if the allegation against the attorney was that he had
embezzled trust funds, that allegation should be proved beyond a reasonable
doubt, but if the allegation went no further than alleging some breach of
professional etiquette, then proof of that allegation need only be proved on a
balance of probabilities.”
Th[e] view expressed by the learned Chief Justice represents the law of
Zimbabwe in respect of the issue of onus in proceedings such as that under
consideration, whatever the law in South Africa on this subject may be.
Misappropriation of trust funds attracts the striking off the Register the name of
a legal practitioner: Chizikani v Law Soc of Zimbabwe 1994 (1) ZLR 382 (S). It
would be grossly unfair to condemn a man and punish him for an offence
of a criminal nature on the balance of probabilities rather than evidence
 45 
 

which established the commission of the offence beyond a reasonable

doubt.
Although the appellants conducted their trust accounts in a most bizarre manner
and failed to accord due regard to the Secretary of the Society, it is impossible
to say that either of them, on the facts placed before the Tribunal, acted
dishonestly, and was deserving of his name being struck off the Register of
Legal Practitioners. But an appropriate sentence taking into account their failure
to keep proper accounting systems must be imposed.
In the result, the appeal succeeds to this extent.
The order that the names of the appellants be deleted from the Register of Legal
Practitioners, Notaries Public and Conveyancers, is hereby set aside. In its place
is substituted the following:
(a) Each of the appellants is to pay a fine of $4 000 to the Law Society.
(b) Each of the appellants is suspended from practice for one year, the whole of
which is suspended for three years on condition that, during the period of
suspension, (i) each of them does not fall foul of keeping proper records of his
trust account; (ii) each of them submits to a special audit by accountants
appointed by the Society every six months, the cost of which audit shall be
borne by each appellant; and (iii) ...

DISCIPLINARY PROCEEDINGS
Smyth v Ushewokunze 1997 (2) ZLR 544 (S)
The applicant ran an organisation which held camps for pupils during their
school holidays. At one of these camps held in December 1992 one of the
campers drowned in the swimming pool. In respect of the drowning, the State
alleged that the applicant was guilty of culpable homicide. At a later camp, held
in April 1993, the applicant was alleged to have committed five counts of
criminal injuria in respect of boys who attended the camp. He was arrested on
these charges in September 1997 and remanded on bail. The first respondent
was the public prosecutor who was dealing with the case. During the
investigation, he had, without any grounds for saying so, accused the applicant
of being responsible for the loss of the sudden death docket relating to the pupil
who had drowned. He had, while the applicant was outside the country on
holiday, told the applicant's lawyer that if the applicant did not return
immediately to Zimbabwe, he would seek the assistance of Interpol. After the
applicant’s return, in spite of negotiations being conducted with the applicant’s
lawyer, the first respondent caused the applicant to be arrested. At the remand
 46 
 

hearing, he made a number of incorrect or unfounded allegations against the

applicant and his lawyer.
The applicant sought relief under s 24(1) of the Constitution, claiming that -
(1) his right to a fair trial would be denied if the first respondent were to
continue to be in charge of and to deal with the case against him, because the
first respondent had involved himself in a personal crusade against the
applicant, lacked the necessary objectivity, detachment and impartiality, and
had exhibited bias;

The Issues
(1) Whether the applicant will be afforded a fair hearing in the event of the
first respondent prosecuting the charges against him at the trial.
It is specifically alleged against the first respondent that he has involved himself
in a personal crusade against the applicant and that he lacks the objectivity,
detachment and impartiality necessary to ensure that the State’s case is
presented fairly. It is said further, that the first respondent has exhibited bias
against the applicant. Before considering the particular features of the first
respondent’s conduct upon which reliance is placed, it is as well to outline what
society expects of a prosecutor.
A prosecutor must dedicate himself to the achievement of justice. He must
pursue that aim impartially. He must conduct the case against the accused
person with due regard to the traditional precepts of candour and absolute
fairness. Since he represents the State, the community at large and the interests
of justice in general, the task of the prosecutor is more comprehensive and
demanding than that of the defending practitioner. Like Caesar’s wife, the
prosecutor must be above any trace of suspicion. As a “minister of the truth” he
has a special duty to see that the truth emerges in court. He must produce all
relevant evidence to the court and ensure, as best he can, the veracity of such
evidence. He must state the facts dispassionately. If he knows of a point in
favour f the accused, he must bring it out. If he knows of a credible witness who
can speak of facts which go to show the innocence of the accused, he must
himself call that witness if the accused is unrepresented; and if represented,
tender the witness to the defence. If his own witness substantially departs from
his proof, he must, unless there is special and cogent reason to the contrary,
draw the attention of the court to the discrepancy, or reveal the seriously
contradictory passage in the statement to the defending practitioner.
 47 
 

There is, to my mind, hardly a better summation of a prosecutor’s function than

is expressed in the following passage of the judgment of Rand J in Boucher v
The Queen [1955] 110 CCC 263 (Supreme Court of Canada) at B 270:
“It cannot be over-emphasised that the purpose of a criminal prosecution is not
to obtain a conviction; it is to lay before a jury what the Crown considers to be
credible evidence relevant to what is alleged to be a crime. Counsel have a duty
to see that all available legal proof of the facts is presented: it should be done
firmly and pressed to its legitimate strength, but it must also be done fairly. The
role of the prosecutor excludes any notion of winning or losing; his function is a
matter of public duty than which in civil life there can be none charged with
greater personal responsibility. It is to be efficiently performed with an
ingrained sense of the dignity, the seriousness and the justness of judicial
proceedings.”
I am satisfied that the applicant has shown that his right under s 18(2) of the
Constitution to a hearing by an independent and impartial court is in jeopardy if
the first respondent proceeds as the prosecutor in this matter.

S v Jenkins 1985 (2) ZLR 193 (S)

In R v Maharaj 1960 (4) SA 256 (N) at 258B-C, BROOME JP said:
It is a principle of justice as administered in this country that trials must take
place in open court and that judicial officers must decide them solely upon
evidence heard in open court in the presence of the accused. If that principle is
violated, then, quite apart from the question as to whether the accused is
manifestly guilty, the proceedings are bad because it might be supposed that
justice was being administered in a secret manner instead of in open court. It is
elementary that a judicial officer should have no communication whatsoever
with either party in a case before him except in the presence of the other, and no
communication with any witness except in the presence of both parties. For that
reason the conviction must be set aside.
Subject to certain permissible exceptions the general principle above referred to
also applies to the administration of justice in Zimbabwe, and the consequences
of violating it will be equally fatal. Certainly the magistrate’s action in
interviewing a State witness in the absence of the parties, and also in
communicating with that witness in a language that the defence could not
understand so as to make that communication in effect a secret one, was wholly
irregular and is in itself enough to vitiate the trial.
 48 
 

S v Mutsinziri 1997 (1) ZLR 6 (H)

I must ... examine a number of irregularities which ... have plagued the
proceedings. The first of these irregularities or potential irregularities relates to
the representation of the accused during the course of the trial. He was at the
commencement of proceedings represented by a Mr Chivaura, appointed pro
Deo.
On the first day of the proceedings, after evidence had been led from three or
four witnesses, Mr Chivaura rose to his feet and told the court that he was
having difficulty with the accused. His intimation drew a sharp rebuke from
myself: I observed that it was inappropriate for him to be saying such a thing.
He took his courage in both hands and stated that he wished to recuse himself
from the proceedings. He was told that recusal was a function of judicial office,
that he could not recuse himself and that in any event he would not be excused
from further representation of the accused. I said that he had been appointed to
perform a function, that there was no reason why he should not discharge it and
that he should continue to do so.
Where counsel has difficulty in taking instructions from an accused person
whether on a private brief or pro Deo, he is nevertheless enjoined to do all he
can to represent the interests of the client and it is utterly inimical to those best
interests for counsel to state in open court that he is having difficulty with his
client and to wish to be excused. In the very limited circumstances where a legal
practitioner might properly withdraw from further attendance upon the accused
in the course of proceedings, he is bound to explain himself in the most discrete
way possible, in the manner least calculated to prejudice his client, and should
do so without dramatic pronouncement in open court.
I therefore regard what transpired on that occasion as an irregularity in the
proceedings and one that could potentially prejudice the accused.
All these instances, and many others of lesser importance, are in my view
serious irregularities. Yet still another irregularity occurred ... related to the duty
of a prosecutor to reveal to the court inconsistent statements made by a State
witness. That such a duty exists admits of no doubt. Indeed it is precisely
because it does exist that the courts have for generations placed great reliance
upon the due observance by the prosecutor of this duty.
It is understandable that a prosecutor may find it difficult in arriving at a
conclusion whether a discrepancy which appears is material such as justifies
disclosure of the statement to the defence or not material and such as would
only result in the captious and hair splitting form of cross-examination ... Where
 49 
 

the prosecutor has difficulty in reaching that decision however, the safe and
proper course is in all circumstances to disclose rather than not to disclose. The
court may then form a judgment as to whether the discrepancy is material and as
to whether cross-examination on the alleged discrepancy is proper or captious
and hair splitting. The prosecutor assumes an unnecessary burden upon himself
if in the face of doubt he forms the conclusion that he will not disclose the
discrepancy.