Professional Documents
Culture Documents
Ethics Case Summaries - Edited
Ethics Case Summaries - Edited
“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.
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.”
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.
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.
8
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.”
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.
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.
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.
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
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.
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
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.
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.”
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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
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
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.