UNIVERSITY OF ZIMBABWE

LL.B. (HONS) PART IV

LEGAL ETHICS (LB 305)
LECTURE NOTES
________________

CONTENTS

Table of Cases ................................................................................................................. 3

1. What are Professional Ethics? ................................................................................... 7
Ethics........................................................................................................................... 7
Profession .................................................................................................................... 7
Professional ethics .................................................................................................... 12
2 Nature and Structure of the Profession ..................................................................... 15
A closed profession ................................................................................................... 15
Rationale for giving lawyers a monopoly ................................................................. 16
Quid pro quo: competence and honesty ................................................................... 16
Practising Certificates ............................................................................................... 17
3. Common-law Ethical Duties of a Legal Practitioner ............................................... 17
Duty to the State........................................................................................................ 18
Duty to the Court ...................................................................................................... 20
Duty to the Client ...................................................................................................... 25
Duty to Third Parties ................................................................................................. 39
Duty to Other Practitioners and to the Profession .................................................... 40
4. Statutory Duties of a Legal Practitioner ................................................................... 44
5. Administering Oaths ................................................................................................ 51
6. Cessation or abandonment of practice ..................................................................... 51
Introduction ............................................................................................................... 51
Disposal of files ........................................................................................................ 52
Trust funds ................................................................................................................ 52
7. Disciplinary Proceedings ......................................................................................... 53
Responsibility of Law Society .................................................................................. 53
Initial investigation of allegations of unprofessional conduct .................................. 53
Action by Council of Society .................................................................................... 54
Disciplinary Tribunal ................................................................................................ 55
Inquiries by Disciplinary Tribunal ............................................................................ 55
 Powers of Disciplinary Tribunal following inquiry .................................................. 57
Cases where inquiry need not be held....................................................................... 57
Publication of decisions of Disciplinary Tribunal .................................................... 57
Appeals from decisions of Disciplinary Tribunal ..................................................... 58
Restoration to Register .............................................................................................. 58
8. Judges, Magistrates and Prosecutors........................................................................ 59
Judicial officers ......................................................................................................... 59
Prosecutors ................................................................................................................ 64
Appendix 1: Legal Practitioners Act............................................................................ 67
Appendix 2: Law Society of Zimbabwe By-laws (Extracts) ..................................... 107
Appendix 3: Legal Practitioners (General) Regulations (Extracts) ........................... 125
Appendix 4: International Bar Association : International Code of
Ethics ................................................................................................................... 130
Appendix 5 : united Nations : Basic Principles on the Role of
Lawyers ................................................................................................................ 133
Appendix 6 : United Nations : Basic Principles on the
Independence of the Judiciary ............................................................................. 135
Appendix 7 : African Union : Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa ........................................... 136
Appendix 8 : United Nations : Guidelines on the Role of
Prosecutors ........................................................................................................... 137

2
 TABLE OF CASES

African Farms & Townships Ltd v Cape Town Municipality

1963 (2) SA 555 (A) ................................................................................................. 20
Andresen v Minister of Justice 1954 (2) SA 473 (W) ................................................... 29
ANZ (Pvt) & Ltd & Anor v Diamond Insurance Co (Pvt) Ltd
2001 (1) ZLR 226 (H) ......................................................................................... 60, 61
Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v
Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H) ......................................... 20
Barreau de Montreal v Claude Wagner (1968), Q.B. 235
(Que. Q.B.) ................................................................................................................ 42
Ben Baron & Partners v Henderson 1958 (4) SA 270 (SR)......................................... 41
Brenner’s Service Station & Garage (Pty) Ltd v Milne &
Anor 1983 (4) SA 233 (W) ....................................................................................... 20
Cape Law Society v Luyt 1929 CPD 281 ...................................................................... 47
Chirambasukwa v Law Society of Zimbabwe 1995 (2) ZLR
188 (S) ....................................................................................................................... 19
Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (S) ...................................... 49
Coghlan, Welsh & Guest v Levy 1979 RLR 13 (G) ...................................................... 47
Comaf Holdings (Pvt) Ltd v General Chemicals (Pvt) Ltd &
Anor 1999 (2) ZLR 160 (H) ...................................................................................... 14
Dutton v Bognor Regis UDC [1972] 1 QB 373 (CA) ................................................... 39
Dzeka v Nyabango HH-20-2004 ................................................................................... 20
Ex parte Chief Immigration Officer 1993 (1) ZLR 122 (S) .......................................... 20
Ex parte Somers 1948 (1) SA 837 (T) .......................................................................... 58
Ex parte Venter 1935 (1) PH C44 (C) .......................................................................... 32
Executive Assistance Training Centre (Pvt) Ltd v ZESA
Pension Fund & Ors HB-1-2006 .............................................................................. 21
Founders Building Soc v Dalib (Pvt) Ltd & Ors 1998 (1)
ZLR 526 (H) ............................................................................................................. 40
G R Engineering (Pvt) Ltd & Anor v Mitre Engineering (Pvt)
Ltd & Anor HB-29-2005 ........................................................................................... 21
Goodgold Jewellery (Pty) Ltd v Brevadau CC 1992 (4) SA
474 (W) ..................................................................................................................... 45
Goodricke & Son v Auto Protection Insurance Co Ltd 1968
(1) SA 717 (A) .......................................................................................................... 39
Gramowsky v Steyn 1922 SWA 48 ............................................................................... 45
Hayes v the Bar Council 1981 ZLR 183 (A) ................................................................ 17
Hersman v Angilley 1936 CPD 386 .............................................................................. 23
Holmes v Law Society, Cape, & Anor 2006 (2) SA 139 (C) .................................. 21, 49
Honey & Blanckenberg v Law 1965 RLR 685 (G) ....................................................... 26
In re Chikweche 1995 (1) ZLR 235 (S) ........................................................................ 17
Incorporated Law Soc v Becker 1921 TPD 407 ........................................................... 44
Incorporated Law Society Natal v Hassim 1978 (2) SA 285
(N) ............................................................................................................................. 18
Incorporated Law Society, Natal v Roux 1972 (3) SA 146 (N) .................................... 19
Incorporated Law Society, Transvaal v Mandela 1954 (3) SA
102 (T) ...................................................................................................................... 17
International Tobacco Corp (SA) Ltd v United Tobacco Co
(South) Ltd 1955 (2) SA 1 (W) ................................................................................. 23
Ivoral Properties (Pty) Ltd v Sheriff, Cape Town & Ors 2005
(6) SA 96 (C) ............................................................................................................ 36
Joubert & Ors v Venter 1985 (1) SA 654 (A) .............................................................. 24
Kelly v Pickering & Anor (1) 1980 ZLR 44 (G); 1980 (2) SA
753 (R) ...................................................................................................................... 30
Kirkwood Garage (Pty) Ltd v Lategan & Anor 1961 (2) SA
75 (E) ........................................................................................................................ 31
Klopper v van Rensburg 1920 EDL 239 ....................................................................... 36
Law Society of Rhodesia v Ford 1976 (2) RLR 138 (A) .............................................. 54
Law Society of Southern Rhodesia v Q 1958 R & N 495 (SR) ..................................... 25
Law Society of the Cape of Good Hope v Tobias & Anor
1991 (1) SA 430 (C) ................................................................................................. 46
Law Society of Zimbabwe v Lake 1988 (1) ZLR 168 (S) .............................................. 48
Law Society of Zimbabwe v Paterson 1995 (1) ZLR 372 (S) ....................................... 55
Law Society, Cape v Berrangé 2005 (5) SA 160 (C) .............................................. 44, 56
Law Society, Cape v Koch 1985 (4) SA 379 (C) .......................................................... 56
Law Society, Cape v Visser 1965 (1) SA 523 (C) ......................................................... 28
Lees Import & Export (Pvt) Ltd v Chikaka 1999 (2) ZLR 36
(S) .............................................................................................................................. 14
Macheka v Moyo HB-78-2003 ................................................................................ 31, 51
Mackay v Legal Aid Board 2003 (1) SA 271 (SE) ....................................................... 48
Mafara v Law Society of Zimbabwe 1987 (2) ZLR 293 (S) ......................................... 19
Maketo & Anor v Wood & Ors 1994 (1) ZLR 102 (H) ................................................ 39
Manase v Minister of Safety & Security & Anor 2003 (1) SA
567 (Ck) .................................................................................................................... 28
Manyika v Manyika 1983 (2) ZLR 198 (H) .................................................................. 51
Maposa v Digglefold Development Assoc & Anor HH-47-07 ...................................... 21
Mapuranga v Mungate 1997 (1) ZLR 64 (H) ......................................................... 23, 51
Matamisa v Mutare City Council 1998 (2) ZLR 439 (S).............................................. 20
Mavheya v Mutangiri & Ors 1997 (2) ZLR 462 (H) .................................................... 27
MEC for Economic Affairs, Environment & Tourism v
Kruisenga & Anor 2008 (6) SA 264 (Ck HC) .................................................... 36, 37

4
Mhene v Teubes 1986 (2) ZLR 179 (S) ........................................................................ 41
Minister of Lands & Ors v CFU 2001 (2) ZLR 457 (S) ............................................... 20
Mitchell v Estate Agents Council 1996 (1) ZLR 222 (S) .............................................. 49
Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A)................................................... 26
Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR
356 (S) ................................................................................................................. 49, 56
Mutanga v Mutanga 2004 (1) ZLR 487 (H) ................................................................. 31
Natal Law Society v Maqubela 1986 (3) SA 51 (N) ..................................................... 18
Ndlovu v Murandu 1999 (2) ZLR 341 (H).................................................................... 20
Nel v Bester & Ors 2003 (2) SA 700 (SE) .................................................................... 40
Pertsillis v Calcaterra & Anor 1999 (1) ZLR 70 (H) ................................................... 32
Pitluk v Law Society of Rhodesia 1974 (2) RLR 245 (A) ....................................... 55, 56
Pocock v AFC 1995 (2) ZLR 367 (S) ........................................................................... 37
President of RSA v SA Rugby Football Union 1999 (4) SA
147 (CC).................................................................................................................... 60
R v Steyn 1953 SR 76 .................................................................................................... 65
R v Steyn 1954 (1) SA 324 (A) ..................................................................................... 65
Retha Meiring Attorney v Walley 2008 (2) SA 513 (D) ............................................... 31
Road Accident Fund v Shabangu & Anor 2005 (1) SA 265
(SCA) ........................................................................................................................ 39
Rondel v W [1966] 1 All ER 467 (QB) ................................................................... 19, 35
S v Beahan 1989 (2) ZLR 20 (S) .................................................................................. 65
S v Chibaya & Ors HH-4-2007 ..................................................................................... 65
S v Chisvo & Ors 1968 (2) RLR 54 (A)........................................................................ 33
S v Gidi & Anor 1984 (4) SA 537 (C) .......................................................................... 24
S v Hurle & Ors (2) 1998 (2) ZLR 42 (H) .................................................................... 51
S v Jacobs & Anor 1970 (3) SA 493 (E) ....................................................................... 32
S v Jakarasi 1983 (1) ZLR 218 (S) ............................................................................... 24
S v Jenkins 1985 (2) ZLR 193 (S) ................................................................................. 63
S v Khumalo HB-70-1991 ............................................................................................. 22
S v Martin 1988 (2) ZLR 1 (S)...................................................................................... 38
S v Mazhambe & Ors 1997 (2) ZLR 587 (H) ............................................................... 64
S v Moyo 1989 (3) ZLR 250 (S).................................................................................... 23
S v Mutsinziri 1997 (1) ZLR 6 (H)................................................................................ 64
S v Sefadi 1995 (1) SA 433 (D) .............................................................................. 23, 65
S v Sithole 1996 (2) ZLR 575 (S).................................................................................. 65
S v Wise 1974 (2) RLR 194 (A) .................................................................................... 22
Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S) .................................................. 63
Society of Advocates of SA (Witwatersrand Division) v
Fischer 1966 (1) SA 133 (T) .................................................................................... 17

5
Society of Advocates, Natal v Z 1988 (3) SA 443 (N) .................................................. 16
Solomon v Law Society of the Cape of Good Hope 1934 AD
401............................................................................................................................. 19
Standard Credit Corp Ltd v Bester & Ors 1987 (1) SA 812
(W) ............................................................................................................................ 20
Summerley v Law Society of Northern Provinces 2006 (5) SA
613 (SCA) ................................................................................................................. 49
Swartzberg v Law Society, Northern Provinces 2008 (5) SA
322 (SCA) ................................................................................................................. 58
Tecmed (Pty) Ltd v Hunter & Anor 2008 (6) SA 210 (W) ........................................... 46
Tinarwo v Hove & Ors 2003 (2) ZLR 148 (H) ............................................................. 39
Towers v Chitapa 1996 (2) ZLR 261 (H) ..................................................................... 33
Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2)
ZLR 593 (H) ............................................................................................................. 22
White v Jones [1995] 2 AC 207 (HL) ........................................................................... 39
ZAPU v Siwela HB-14-2002 ......................................................................................... 51

6
 1. WHAT ARE PROFESSIONAL ETHICS?
To understand the nature and scope of professional ethics, one should have some idea
of what is meant by the terms ―ethics‖ and ―profession‖.
Ethics
Ethics is a branch of philosophy that encompasses right conduct and good life. It is
not simply an analysis of right and wrong; it is rather a study of the standards we use
to determine whether something is right or wrong. Thus abortion may be moral or
immoral, depending on our code of values, but ethics seeks to explain how we decide
whether it is moral or immoral and what standards we used to reach that decision.
Ethics is therefore sometimes called moral philosophy. Ethics is more than just mo-
rality, however: it is philosophical thinking about moral issues and moral judge-
ments.1
Ethics in this broad sense forms no part of the curriculum of lawyers in Zimbabwe,
and the profession is the poorer for it. Many issues that face legal policy-makers are
essentially ethical issues. Abortion is one, the death penalty is another. Lawyers like
to think they are peculiarly well equipped to discuss and decide such issues, but with-
out a proper grounding in ethics or moral philosophy their discussions are no better
informed than those of any lay-person.
We shall therefore leave the discussion of ethics at that, and turn hastily to the defini-
tion of ―profession‖.
Profession2
What is a profession? The word is very imprecise. At one extreme it may mean any
calling or vocation; at the other it may embrace only such callings as the law and
medicine. In Britain, up to the 19th century, only the Church, the law and medicine
were regarded as professions (they were the learned professions) with possible claims
from the army and the navy.
To help us get an idea of what a profession is, we can usefully examine various voca-
tions and callings and analyse how far they fit in with our idea of a profession:
The Church
The Church is the mother of the professions, in that much of the work of other profes-
sions was originally performed by clergymen. But most people think of professions
in terms of economics and the supply of services in return for a fee or reward. The
reward that priests and clergymen work for is in the hereafter, not this world, so in
that respect at least they differ from other professionals. Furthermore (at least in the
Roman Catholic and Anglican churches) they have a hierarchical structure which sets
them apart from other professions such as the law and medicine.
If, for the above reasons, we regard the Church as falling outside the modern concept
of a profession, we can infer that a profession consists of persons engaged in an eco-
nomic activity such as supplying a service for pecuniary reward. We may also infer
that a rigid hierarchy is alien to a profession.

1
See Ethics by W.K. Frankena 2nd ed (1973)(http://www.ditext.com/frankena/ethics.html; An Intro-
duction to Ethics by P. Newall (http://www.galilean-library.org/int11.html).
2
This discussion is based on Professional Ethics by F.A.R. Bennion (1969) (Charles Knight & Co,
London)

7
The Defence Forces
In modern democratic societies, military personnel are completely under the control
of the State; it is only in a military dictatorship that they are free to do as they wish.
This feature of State control makes it difficult or impossible to think of the armed
forces as constituting a profession in the true sense. Although soldiers require train-
ing before they can be deployed, and although the conduct of military operations re-
quires considerable skill, the training cannot be put to use, and the skill cannot be ex-
ercised, except at the behest of the State and to implement State policy. Furthermore,
soldiers work (or should work) as a team and there is little scope for individual enter-
prise as appears in other professions. They are also organised in a rigidly hierarchical
structure.
For these reasons, the Defence Forces do not properly qualify as a profession. Again
looking at the reasons why we excluded them, we can infer that a profession should
not consist of people wholly employed and controlled by a single entity, and further
that a rigid hierarchy is alien to the concept of a profession.
The Public (Civil) Service
For the same reasons, civil servants do not as such constitute a profession, even
though professional persons such as doctors and lawyers may be members of the Pub-
lic Service.
Teachers
Teachers are often regarded as professionals because their work requires training and
the exercise of specialised knowledge and skill. On the other hand, they lack a repre-
sentative body (apart from trade unions) and do not fix their own professional stand-
ards. Nor is there any national roll or register of teachers. Moreover, almost all
teachers are employees, either of the State or of persons who run private schools. For
these reasons, they probably cannot be regarded as members of a profession.
The reason why teachers can be regarded as professionals — their specialised train-
ing, knowledge and skill — suggests that one characteristic of a profession is that its
members must perform skilled work which requires training and specialised
knowledge.
Conversely, looking at the reasons for excluding teachers from the ranks of profes-
sionals, we may infer that members of a profession should be able to fix their own
professional standards, whether they do it directly or through an association. There
should also be some sort of roll or register of members of the profession.
Nurses
In the days when nurses worked under the direct supervision of a doctor, they were
probably not professionals. Now, however, they perform a great deal of skilled medi-
cal work on their own, without supervision of any kind. Furthermore, they have their
own council which sets and enforces professional standards, and specified qualifica-
tions for entry. For these reasons they can well be regarded as a profession.
Pharmacists
Doubts about the professional status of pharmacists has arisen in the past because they
combine their advisory services with retail selling of a wide variety of goods. In the
18th century, this was taken to be the distinction between physicians (who were re-
garded as professionals) and apothecaries (who were not):

8
 ―The physicians could always point to the fact that the apothecaries lived not by charging
for attendance and advice, like proper professional men, but by selling drugs like the
tradesmen they were.‖
But nowadays pharmacists have their own council, which sets and enforces profes-
sional standards, and they are expected to dispense advice as well as medicines. So
they, too, are probably a profession — at least in regard to their activities other than
retail selling.
On the other hand, there remains a doubt about their status, derived from the fact that
they engage in retail selling. However fusty that doubt may be, it does indicate that
commercial trade may be regarded as contrary to the spirit of professionalism. One
would not think, for example, of street vendors as constituting a profession.
Estate agents
Much the same goes for estate agents, who combine the functions of brokers (i.e.
bringing together buyers and sellers of property) with other, more advisory functions
such as valuing. When an estate agent is acting as the sole agent for a seller, he may
be required to offer advice on delicate matters such as price and the opportune time
for concluding a sale. In such circumstances the estate agent is acting in a fiduciary
capacity. But if several estate agents have been engaged to sell a single property,
competitive commercial interests will prevail.
Estate agents now have their own council responsible for setting and enforcing stand-
ards. They are expected to show skill and expertise when exercising their calling, and
their work does require training. Despite the commercial aspect of their work, there-
fore, they probably constitute a profession.
Banking and insurance
Bankers may have constituted a profession when banks were small partnerships or
individuals, akin to lawyers‘ firms. But a large commercial banking company cannot
be regarded as a professional entity. Nor can bankers, taken together, be regarded as
constituting a profession because all of them, from the nature of their work, are em-
ployed by commercial banking companies.
Some factors distinguishing professions from other activities
Trade
Commercial or trading activities are often regarded as incompatible with professional-
ism. True professionals, purists may say, should shun such activities: speculative
profit-seeking is felt to be incompatible with single-minded devotion to a professional
calling. As R.J. Gerber says in Lawyers, Courts and Professionalism (1989) Green-
wood Press, New York, p. 11:
―Professions and business have traditionally been contrasted. The professional is seen as
oriented not to personal profit but to disinterested tasks like the advancement of
knowledge. Professionalism involves limitations on the aggressive pursuit of self-
interest. Professionals subordinate their financial interests to the interests of the public,
especially to people who need help.‖
The essential difference between professional and trading activities lies in the func-
tions involved. There is a difference in kind between the supply of furniture or gro-
ceries and the supply of skilled advice on the basis of trust and confidence. Both ac-
tivities require skill, but the skills are different.

9
Manual effort
There is some basis in the idea that the performance of manual work is incompatible
with a profession. Yet dentists and surgeons perform such work while barbers (who
originally performed surgical work) are not regarded as professionals.
Many professionals use manual and other physical techniques, so manual effort is not
a disqualification — though if little or no intellectual effort accompanies, it the activi-
ty will rank with trades rather than professions.
Employee status
The activities of lawyers and doctors (traditionally regarded as professional) were sel-
dom carried on by people in salaried employment until the 19th century. Even nowa-
days, members of a profession in private practice are often regarded as having a high-
er status than those in employment. That is certainly so in the legal profession in
modern Zimbabwe, where practitioners who are in full-time employment are debarred
by ethical rules from carrying out certain professional functions on behalf of their em-
ployers. And many professionals (e.g. lawyers) employed by large enterprises such as
the Public Service regard themselves as employees (public servants) first and profes-
sionals second. The interests of their employers come first.
Characteristics of professions
If the following factors are present, the activity will be regarded as a profession in the
strictest sense:
Intellectual basis
An intellectual discipline, capable of formulation on theoretical lines, requiring a good
educational background, and tested by examination.
Register of members
A roll or register identifying members of the profession. Persons not on the roll or
register are not regarded as being professionals.
Representative institute
One or more organisations representing members of the profession, particularly those
in private practice, and having the function of safeguarding and developing the exper-
tise and standards of the profession. To represent members of the profession, an or-
ganisation should consist wholly or mainly of members elected by the professionals
concerned.
The importance of such an organisation cannot be overemphasised, particularly in re-
gard to the legal profession. According to principle 24 of the United Nations Basic
Principles on the Role of Lawyers:
―Lawyers shall be entitled to form and join self-governing professional associations to rep-
resent their interests, promote their continuing education and training and protect their
professional integrity. The executive body of the professional associations shall be elect-
ed by its members and shall exercise its functions without external interference.‖
Professional associations of lawyers are thus created for two main purposes: to safe-
guard the professional interests of lawyers and to protect and strengthen the independ-
ence of the legal profession. To carry out either of these purposes, a professional as-
sociation must be free from governmental control. To carry out the second purpose,

10
an association must sometimes engage in political activity, though it should not in-
dulge in partisan politics.3
Private practice
A foundation in private practice, so that the standards of the profession derive from
meeting the needs of individual clients on a person-to-person basis, with remuneration
in the form of fees rather than salary.
Advisory functions
For a consultative profession such as the law and medicine, the members must per-
form advisory functions, often coupled with executive functions in carrying out what
has been advised.
Personal responsibility
Where a professional person gives advice, he accepts full personal responsibility for
that advice. The responsibility is owed primarily to the client, but also to the profes-
sion and to society at large. He does not guarantee the accuracy of his advice, but he
does impliedly hold himself out as having the average degree of competence associat-
ed with the proper discharge of the duties of his profession, and if he shows less than
that competence he may be charged by his representative institute for misconduct.
Tradition of service
An outlook which is essentially objective and disinterested, where the motive of mak-
ing money is subordinated to serving the client and the public interest.
In the case of the legal profession, this is particularly important. As stated by the In-
ternational Commission of Jurists in International Principles on the Independence
and Accountability of Judges, Lawyers and Prosecutors (ICJ Practitioners‘ Guide Se-
ries No. 1, 2004) at p. 65:
―Lawyers are, with judges and prosecutors, one of the pillars upon which human rights and
the rule of law rest. Lawyers play an essential role in protecting human rights and in
guaranteeing that the right to a fair trial is respected by providing accused persons with a
proper defence in court.‖
Legal practitioners who are concerned solely with making money will disregard cli-
ents who cannot pay for their services, and so will abandon their role in upholding
justice. A mercenary lawyer, like a mercenary priest, betrays his calling.
The reality, of course, is somewhat different. An American judge, R.J. Gerber, in his
book Lawyers, Courts and Professionalism (1989) Greenwood Press, New York,
compared lawyers to litigious flies buzzing round the face of Justice, and lamented
that as they line their pockets they often empty those of their clients. At page 12 of
his book he said:
―As the legal profession‘s competitive ethos and partisan loyalties grow more pronounced,
the pretence that the bar remains above mercantilism becomes more incredible. … The
true picture of the aspiring lawyer is not as high-minded as the bar would like. The aspir-
ing lawyer‘s traits are often narrow, the selection process misdirected, and career goals as
narrow as a fat pocketbook.‖
The same may be said of the profession in Zimbabwe.

3
International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors
International Commission of Jurists (2004), page 71.

11
Legal practitioners have to make a living, and they cannot be expected to live on ide-
als alone. Somehow they have to strike a balance between their self-interest and the
public good.
Code of conduct
There must be a code of professional ethics, laid down and enforced by one or more
professional institutes. In the case of lawyers, principle 26 of the United Nations
Basic Principles on the Role of Lawyers states:
―Codes of professional conduct for lawyers shall be established by the legal profession
through its appropriate organs, or by legislation, in accordance with national law and cus-
tom and recognised international standards and norms.‖
It is important that a code of conduct, where there is a written one, should be drawn
up by the profession itself or, if it is embodied in legislation, that the legislation
should be drafted with input from the professional association.4
Conclusion
To sum up5, a profession may be defined as a self-regulating body of people whose
members:
(a) are recognised as having some special skill or learning in some field of activity in
which the public needs to be protected against incompetence;
(b) are identifiable by reference to a register or record;
(c) belong to a representative organisation which sets and enforces professional
standards;
(d) perform advisory functions and accept personal responsibility for their advice;
(e) hold themselves out as willing to serve the public;
(f) submit to a set of rules which impose higher standards of conduct than those re-
quires by law of the ordinary citizen.
Professional ethics
The definition of professional ethics is given in the previous discussion: it is the code
of practice or the set of rules, written or unwritten, which governs the conduct of pro-
fessional people as such. The code regulates not only how they practise their profes-
sion but may regulate their conduct in other spheres as well.
Characteristics of code of professional ethics
Codes are typically drawn up and administered by bodies consisting wholly or mainly
of members of the profession in question. This is of crucial importance, and explains
rules designed to preserve harmony within the profession, such as those forbidding
undercutting, poaching of clients and touting, and the practice of not charging a fel-
low-practitioner for professional services, and rules encouraging members to submit
disputes to arbitration by the professional body.
Codes represent the judgment of the profession on how members should conduct
themselves, and many of their rules are unknown to the general law.

4
International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors
International Commission of Jurists (2004), page 72.
5
This definition is adapted from A Handbook of Professional Conduct for Solicitors by F. Silverman
(Butterworths, 1989).

12
Codes bind members of the profession even if they are not embodied in legislation
because, by voluntarily joining the profession, members have agreed to be governed
by them. Where they are not enforced by legislation, therefore, they are binding
through contract.
Nature of rules in code of professional ethics
Analysis of the rules of professional ethics in a typical code shows four different as-
pects of consultant professionalism:
1. Rules arising from the fact that expertise is involved
(a) rules regulating admission, requiring minimum qualifications for entry to the pro-
fession;
(b) rules ensuring continued competence after admission, e.g. for continued profes-
sional education;
(c) rules demarcating boundaries between different professions.
2. Rules protecting relationships with clients
(a) rules requiring a personal relationship between practitioner and client, e.g. prohi-
bition of practice by limited companies6;
(b) rules imposing strict discretion and confidence as to client‘s affairs;
(c) rules requiring courtesy and dignity to be displayed at all times;
(d) rules preserving a client‘s freedom to choose a practitioner and (subject to the
public interest) allowing a practitioner to reject a client.
3. Rules arising from concern with clients’ property
(a) rules requiring a practitioner‘s integrity and honesty to be vouched for before ad-
mission to the profession;
(b) rules requiring separate bank accounts (trust funds) to be maintained for clients‘
funds, and payments to be made to compensation funds;
(c) rules requiring independence and impartiality: practitioners must avoid any posi-
tion where his own interests may conceivably conflict with those of his client;
(d) rules requiring responsibility for advice: the advice must be that of the practition-
er himself, and he must take full responsibility for it. He must back his advice
with his whole personal estate, without limitation of liability.
4. Rules designed to preserve amicable relationships with fellow-professionals
(a) the standing and repute of the profession must not be prejudiced;
(b) fellow-practitioners must be treated with courtesy;
(c) poaching of clients is discouraged;
(d) touting and undue advertising are forbidden or discouraged;
(e) undercutting of fees is restricted.

6
In Zimbabwe legal practitioners are not allowed to conduct their practice through the medium of
companies. In South Africa they are allowed to do so by sec 23(1)(a) of the Attorneys Act 53 of 1979,
so long as the company‘s memorandum provides that all present and past directors are liable jointly and
severally with the company for the debts and liabilities of the company incurred while they were in
office.

13
Categories 1 to 3 safeguard the standard of service offered to the public, and ensure
the six essential qualities of the consultant professional:
 competence
 humanity
 discretion
 impartiality
 responsibility
 integrity.
Category 4 is concerned with relationships within the profession.
A Zimbabwean Code?
In Zimbabwe there is no written code of conduct for legal practitioners. The Law So-
ciety has power to draw up a code,7 but has never done so. That does not mean there
are no rules of conduct, however, and that practitioners are free to do as they please so
long as they do not infringe the criminal law. There are rules, but they are scattered
throughout the Legal Practitioners Act [Chapter 27:07] and the rules and regulations
made under that Act. There are also unwritten rules of conduct, which have long been
observed by the profession and were adopted originally from the rules of the South
African and English Bar and Side-bar. The binding nature of these unwritten rules
probably stems from their tacit acceptance by the general body of practitioners, rein-
forced by the Law Society through sec 23(2)(b) of the Legal Practitioners Act.8
The lack of a written code of conduct makes it difficult for aspiring and newly-
qualified practitioners to find out how they should behave in their new profession.
Books on legal ethics are not readily available in Zimbabwe, and it takes a diligent
search to find the rules of conduct that are set out in the Legal Practitioners Act.
Moreover, it is not always easy to decide which rules are applicable to practitioners in
present-day Zimbabwe. Before Independence, the profession was divided into advo-
cates, who specialised in litigation and had the exclusive right to appear in the superi-
or courts, and attorneys who operated much as legal practitioners do today, though
they could not appear in the High Court. Each branch of the profession had its own
rules, though there was considerable overlap. For the most part, the rules applicable
to attorneys apply now to all practitioners, but there may still be some differences.
For example, an advocate could not sue for unpaid fees. Does that rule apply nowa-
days to a practitioner who practises as an advocate, or who specialises in litigation?
More importantly, an advocate was bound to take on any brief in a court and field in
which he or she professed to practise, unless there were special circumstances justify-
ing a refusal.9 Does that rule now apply to legal practitioners who specialise in litiga-
tion, or does the rule applicable to attorneys — that they are free to accept or reject
work as they wish — apply to them? If the latter, then the role of the legal profession
in defending human rights will be compromised because, in performing that role, the

7
See section 63(2)(k) of the Legal Practitioners Act [Chapter 27:07].
8
Section 23(2)(b) impliedly gives the Council of the Society, as well as the Disciplinary Tribunal and
the High Court, power to determine whether or not conduct should be regarded as unprofessional, dis-
honourable or unworthy conduct on the part of a legal practitioner.
9
See rule VI(a) of the Bar Association, which is still applicable to members of the Association.

14
profession must ensure that everyone who is charged with a criminal offence and who
seeks legal representation gets it if he can afford the lawyer‘s fee.10
Despite the difficulty in ascertaining the profession‘s rules of conduct, even newly-
qualified practitioners are expected to know them and to abide by them. The sooner
the Law Society incorporates all or most of the rules into a single readily accessible
code, the better it will be for the profession as a whole.

2 NATURE AND STRUCTURE OF THE PROFESSION

A closed profession
Legal practitioners have an exclusive right to practise law (Legal Practitioners Act
[Chapter 27:07], secs 8, 9 & 10).
Section 8: legal practitioners with practising certificates may practise the profession
of law, i.e. they have right of audience in courts which permit legal representation;
notaries public may attest and authenticate documents as notaries; and conveyancers
may prepare documents for registration in a Deeds Registry.
Section 9: No one other than a registered legal practitioner (or notary public or con-
veyancer) may do certain things:
 practise as legal practitioner (or notary public or conveyancer) or hold him-
self out as such;
 issue summons or process or institute or defend proceedings in court in an-
other person‘s name (but directors or employees of companies, or partners,
may do so on behalf of their companies or partnerships);
 for reward, instruct or help anyone else to issue summons or process or insti-
tute or defend proceedings in court;
 appear in capacity of legal practitioner on behalf of any other person;11
 only registered notaries public may notarially execute, attest or authenticate
documents;
 only registered conveyancers may for reward prepare documents for registra-
tion in a Deeds Registry.
Section 10: Legal practitioners have a virtual monopoly in the preparation of certain
documents: Only a legal practitioner may, for reward, prepare the following docu-
ments:
 a will or codicil;
 legal process in civil or criminal proceedings;
 a contract relating to the creation or dissolution of a partnership;
 a memorandum or articles of association of a company (this does not apply
to chartered accountants or to members of the Chartered Institute of Secretar-
ies);

10
This latter qualification largely nullifies the right to legal representation, of course, because few peo-
ple in Zimbabwe can afford even modest fees charged by lawyers.
11
But the court may permit a person who is the alter ego of a company (i.e. the person who is in sole
control of a company) to represent the company in legal proceedings: Lees Import & Export (Pvt) Ltd
v Chikaka 1999 (2) ZLR 36 (S), explained in Comaf Holdings (Pvt) Ltd v General Chemicals (Pvt) Ltd
& Anor 1999 (2) ZLR 160 (H).

15
  a contract for the acquisition, disposal, exchange or lease, for five years or
more, of immovable property (this does not apply to auctioneers or estate
agents or to officials of local authorities, Agribank or the National Railways
of Zimbabwe).
None of the above applies to public servants, or to people copying or translating the
documents, or to trustees in insolvency or to executors, liquidators or judicial manag-
ers acting in the course of their duties.
Rationale for giving lawyers a monopoly
The rationale for giving legal practitioners a monopoly over the practice of law is to
protect the public. The work that is reserved for members of the profession is regard-
ed as so important that only trained people can perform it. A will that is badly drawn,
for example, will prejudice the testator‘s intended beneficiaries after the testator‘s
death, when defects in the will cannot be remedied.
Is the monopoly desirable? There are points for and against:
 The public is protected through the supervision exercised over practitioners
by the courts and the Law Society. If non-lawyers were able to perform re-
served legal work, this supervision would not be so effective.
 Strict standards of training ensure that practitioners are reasonably competent
to perform the reserved work.
 If non-professionals were allowed to do reserved work, they might perform
only lucrative services and leave registered practitioners to provide the rest.
Practitioners are supposed to adopt a ―swings and roundabouts‖ approach,
under which high-cost transactions are subsidised by others where the service
can be provided cheaply. In other words, practitioners are supposed to pro-
vide a balanced, all-round service to their clients.
 Many people in Zimbabwe cannot afford the services of lawyers. There is a
case for paralegals to provide simple services and advice.
 The boundaries between professions change: the boundaries between archi-
tects, surveyors and town planners, for example, has changed in the past 100
years. It is clear from the Act that accountants and chartered secretaries are
performing some of the work traditionally done by lawyers. A statutory mo-
nopoly may not allow changes to take place in accordance with changing
economic and social conditions.
Quid pro quo: competence and honesty
In return for this monopoly, legal practitioners are expected to be competent and to
observe the highest standard of conduct and morals.
As to competence, legal practitioners must display the same degree of competence as
is currently shown by ordinary members of the profession. This will be covered in
more detail later.
As to honesty and morality, the golden rule, stated by Mr E.A.L. Lewis in his book
Legal Ethics (1982) (Juta & Co) page 8, is:
“A lawyer must avoid all conduct which, if known, could damage his or her reputa-
tion as an honourable lawyer and honourable citizen.”

16
The Canadian Bar Association‘s Code of Conduct states the same principle as fol-
lows12:
―Integrity is the fundamental quality of any person who seeks to practise as a member of
the legal profession. If the client is in any doubt about the lawyer‘s trustworthiness, the
essential element in the lawyer-client relationship will be missing. If personal integrity is
lacking the lawyer‘s usefulness to the client and reputation within the profession will be
destroyed regardless of how competent the lawyer may be.‖
Put another way, lawyers must always act honourably, both in their professional and
private life, so as to protect their good reputation. A lawyer‘s reputation is his or her
greatest asset. Lawyers must not just avoid being found out: they must eschew all
dishonourable conduct and must not engage in it under any circumstances. A lawyer
who engages in improper conduct is dishonourable, whether or not anyone else knows
about that conduct.
As indicated in the preceding paragraph, the duty to act honourably extends to the
practitioner‘s extra-professional life. Although some distinction must be drawn be-
tween a practitioner‘s extra-professional activities and his or her conduct within the
profession, the extra-professional activities can be regarded as shedding light on the
practitioner‘s character and integrity, and may be the subject of disciplinary action if
they show up the practitioner as morally unworthy or are such as to bring the profes-
sion into disrepute.13
Practising Certificates
Any legal practitioner who practises law — that is to say, any practitioner who carries
out any ―reserved work‖ must have a practising certificate, either full or limited, is-
sued in terms of Part IX of the Act.
A full practising certificate allows its holder to practise fully as a legal practitioner
(and, if he or she has the necessary qualifications, as a notary public and a conveyanc-
er as well). A limited practising certificate is issued subject to conditions (sec 77(1)
of the Act) and allows practice within the limits set by those conditions. Practitioners
who practise with limited certificates do not have to contribute to the Law Society
Compensation Fund.
Certificates must be renewed annually.

3. COMMON-LAW ETHICAL DUTIES OF A LEGAL PRACTITIONER

Legal practitioners must be truthful, honest, candid and fair in all their dealings. 14
This is an all-embracing and inflexible rule.
When considering applications for the registration of practitioners, the High Court
must consider whether the applicant is a fit and proper person to be registered. This
means that an applicant must be a person of honesty and reliability. 15 In Hayes v the
Bar Council 1981 ZLR 183 (A) at 199–200 Fieldsend CJ said:
―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

12
Guiding Principle No. 1, stated in Chapter I of the Code.
13
Cf Society of Advocates, Natal v Z 1988 (3) SA 443 (N). See also Guiding Principle 3 stated in
Chapter I of the Canadian Bar Association‘s Code of Conduct.
14
E.A.L. Lewis Legal Ethics (1982, Juta & Co, South Africa) page 11.
15
In re Chikweche 1995 (1) ZLR 235 (S) at 244E.

17
 upon to 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.‖
Broadly speaking, legal practitioners who are employed by non-lawyers (for example,
in-house lawyers employed by companies and financial institutions, and lawyers em-
ployed in the Public Service) are bound by the same ethical duties as practitioners in
private practice, to the extent that they engage in legal work for their employers.16
Lawyers have primary ethical duties towards:
 The State
 The court
 Their clients
 Other legal practitioners and to the profession as a whole.
Duty to the State
A legal practitioner is an officer of the court and has a general duty to sustain the law.
On admission, he or she is required to swear an oath of loyalty to Zimbabwe.17
Political disaffection
This is always a difficult issue: to what extent may a legal practitioner defy unjust
laws?
A legal practitioner has a positive duty to sustain the law, a duty to ―further the ad-
ministration of justice to the best of his ability‖ (Society of Advocates of SA (Witwa-
tersrand Division) v Fischer 1966 (1) SA 133 (T) at 137C-D. But in Incorporated
Law Society, Transvaal v Mandela 1954 (3) SA 102 (T), Mr Mandela‘s conduct in
addressing a meeting and urging his listeners to bring about the repeal of the pass laws
by defiance and industrial action, was found not to be dishonourable even though, as a
result of that conduct, he had been convicted of contravening the Suppression of
Communism Act and sentenced to nine months in prison. The court said:
―While I think that in certain circumstances an attorney who is privileged to practise in the
courts may be expected to observe the laws more strictly than other persons, the fact that
an attorney has deliberately disobeyed the law does not necessarily disqualify him from
practising his profession or justify the Court in removing his name from the roll. We are
not concerned in this case with misconduct committed by an attorney in his professional
capacity; the offence committed by the respondent had nothing to do with his practice as
an attorney.‖ (page 107C)
―The sole question the court has to decide is whether the facts which have been put before
us and on which the respondent was convicted show him to be of such character that he is
not worthy to remain in the ranks of an honourable profession. To that question there can
in my opinion, be only one answer. Nothing has been put before us which suggests in the
slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful,

16
Cf Principle 4.01 of the Guide to the Professional Conduct of Solicitors (1990), published by the
Law Society, London. The principle states: ―A solicitor employed by a lay-employer is subject to the
same principles of professional conduct as a solicitor in private practice.‖
17
Section 86 of the Legal Practitioners Act [Chapter 27:07].

18
 or dishonourable kind; nothing that he has done reflects upon his character or shows him
to be unworthy to remain in the ranks of an honourable profession.‖ (page 108C-D)
On the other hand, in Natal Law Society v Maqubela 1986 (3) SA 51 (N), the re-
spondent attorney had been convicted of high treason, in that he had been part of a
conspiracy that brought about explosions which caused considerable damage to prop-
erty and injuries to innocent people. His conduct, the court found, justified his being
struck off despite the fact that it was politically motivated. See also Incorporated Law
Society Natal v Hassim 1978 (2) SA 285 (N), where a conviction for involvement in
recruiting people to undergo political and military training in order to overthrow the
government was, similarly, held to be personally disgraceful justifying a practitioner‘s
being struck off. The offence, the court said, was equivalent to high treason.
In Zimbabwe, given the Draconian nature of our security laws and the very wide defi-
nition of treason in the Criminal Law Code, one can say with fair certainty that a con-
viction for treason would not automatically justify a legal practitioner‘s being struck
off or de-registered. The penalty, if any, to be imposed upon such a practitioner
would depend on the nature of his or her conduct.18
Non-political illegality
Generally, legal practitioners must not be involved in non-political illegality, criminal
or civil, either in their practice or in their private life, nor may they counsel others to
engage in it. For example, a legal practitioner should not engage in a scheme of tax
evasion (as opposed to tax avoidance) nor encourage a client to do so.
Legal practitioners must advise their clients against infringements of the law and must
not assist clients to infringe it.
A conviction for any offence of which the ingredients are dishonesty or moral un-
worthiness is almost certain to invite some disciplinary action on the part of the Law
Society. For example, advising or assisting a client to bribe an official would result in
a practitioner‘s being struck off or suspended, as would a conviction for rape or inde-
cent assault. On the other hand, motoring offences are usually ignored by the Law
Society. But a deliberate or reckless repetition of an offence otherwise untainted with
dishonesty or unworthiness may well be regarded as supplying sufficient taint to bring
it to the attention of the Law Society. In other words, persistent or repeated convic-
tions for even a relatively venial offence may amount to dishonourable or unworthy
conduct.
Generally, the practice of courts has been to treat the conviction of a legal practitioner
for a criminal offence, whether in his or her capacity as a legal practitioner or not, as
prima facie evidence that the practitioner is unfit to remain registered,19 though this
applies only to offences of a kind which cast doubt on the practitioner‘s character or
integrity.20

18
On the other hand, since treason attracts the death penalty, the question whether or not the practition-
er should be struck off might well be academic.
19
Solomon v Law Society of the Cape of Good Hope 1934 AD 401 at 412.
20
Incorporated Law Society, Natal v Roux 1972 (3) SA 146 (N) at 149A; Chirambasukwa v Law Soci-
ety of Zimbabwe 1995 (2) ZLR 188 (S).

19
Proof of a criminal conviction is regarded as prima facie evidence that the legal prac-
titioner has committed the offence concerned,21 though it is open to the practitioner to
try to persuade the court that he or she should not have been convicted.22
Duty to the Court
Legal practitioners are officers of the court and, as such, have duties towards the
courts in which they appear. They are not ―mere agents for their clients‖, but have
duties towards the judiciary to ensure the efficient and fair administration of justice.
According to Rule 6 of the IBA International Code of Ethics:
―6. Lawyers shall always maintain due respect towards the Court. Lawyers shall without
fear defend the interests of their clients and without regard to any unpleasant conse-
quences to themselves or to any other person. Lawyers shall never knowingly give to
the Court incorrect information or advice which is to their knowledge contrary to the
law.‖
And the Canadian Bar Association‘s Code of Conduct states 23, as examples of prohib-
ited conduct, that a lawyer must not:
― (e) knowingly attempt to deceive or participate in the deception of a tribunal or influ-
ence the course of justice by offering false evidence, misstating facts or law, pre-
senting or relying upon a false or deceptive affidavit, suppressing what ought to be
disclosed or otherwise assisting in any fraud, crime or illegal conduct;
(f) knowingly misstate the contents of a document, the testimony of a witness, the
substance of an argument or the provisions of a statute or like authority;
According to Lawton J in Rondel v W [1966] 1 All ER 467 (QB) at 479:
―An advocate [meaning a pleader in court] … is helping the judge to do justice. He is
most helpful when he is putting his client‘s case as well as it can be put, but he must nev-
er forget that he owes a duty to the court as well as to his client. Many advocates, in the
course of their professional lives, have to face the embarrassment of bringing to the at-
tention of the court authorities of which their opponents have been ignorant and which
they know will lose the case for the client who has paid their fees … This is but one ex-
ample of counsel‘s duty to the court … He may not provide or devise a line of defence
for a client … He may not assert that which he knows to be a lie. He may not connive at,
much less attempt to substantiate, a fraud … He must not be a party to any deception of
the court. In a criminal case, if some irregularity comes to his knowledge before verdict
is given, he must bring it to the attention of the court at the earliest possible moment and
must not hold it in reserve with a view to taking it later as a point before the [appeal
court] when it would be too late to remedy the mistake.‖

Respect for the Court

Legal practitioners must respect the courts in which they appear, but respect does not
mean spineless subservience. The client‘s interests must be upheld. Practitioners
must not allow judicial officers to browbeat them and must be prepared to fight
against what seems to be unfair treatment. But any such fight must be conducted with
proper respect and decorum. Above all, practitioners must keep themselves under
control. However obtuse or obstinate a judicial officer may seem to be, practitioners
must not lose their temper, for if they do they are liable to lose their case and their cli-
ent, and may even be punished for contempt of court.

21
Mafara v Law Society of Zimbabwe 1987 (2) ZLR 293 (S) at 296 E-F.
22
Incorporated Law Society, Natal v Roux (supra) at 148F.
23
In Chapter IX, Guiding Principle 2.

20
A legal practitioner should avoid criticism of the bench, save in a proper manner.24
Baseless allegations of bias on the part of a judicial officer are improper.25
Applications for the recusal of a judicial officer must be made respectfully and tactful-
ly.26 The judicial officer should where possible be informed of the application and the
grounds for it before the application is made. A practitioner should not seek a judicial
officer‘s recusal solely because a client has instructed him or her to do so; before
making the application the practitioner must be satisfied that there are proper grounds
for it.
One way in which legal practitioners show respect for the courts is by behaving deco-
rously and dressing suitably.
Abuse of court process
It is impossible to define comprehensively what is meant by an abuse of court process,
but in general terms it would take place when the court‘s procedure is used by a liti-
gant for a purpose for which it was neither intended nor designed, to the prejudice or
potential prejudice of another party to the proceedings.27 It may also take place when
a litigant institutes proceedings that are obviously unsustainable.28
A legal practitioner must not abuse court process, e.g. he must not enter an appearance
to defend when there is no defence, and must not use court procedures to intimidate
the other side or delay matters. He should not file bogus pleadings.29 Needless to say,
he must not deliberately alter court process30, for that usually amounts to forgery or
fraud.
Undertakings and assurances to court
If legal practitioners give an undertaking to the court that they will do something —
for example, file a document or submit written argument — then they must keep their
word. It is unethical not to do so, and failure to honour an undertaking may result in
the practitioner being ordered to pay costs.31
Courts usually accept a legal practitioner‘s assurances as to matters of fact concerning
a case, and in order to deserve this trust practitioners must act with the utmost good
faith towards the court. A practitioner must ensure either that his assurances are true

24
See Ex parte Chief Immigration Officer 1993 (1) ZLR 122 (S) at 125D–E, where Gubbay CJ said
that practitioners should avoid openly criticising proceedings in which they have been involved, for if
they do there is a risk that their criticism may be partisan rather than objective. See also Matamisa v
Mutare City Council 1998 (2) ZLR 439 (S).
25
Dzeka v Nyabango HH-20-2004.
26
Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1)
ZLR 226 (H). See also Minister of Lands & Ors v CFU 2001 (2) ZLR 457 (S) for an unnecessarily
vehement rejection by the current CJ of an application that he should recuse himself.
27
Standard Credit Corp Ltd v Bester & Ors 1987 (1) SA 812 (W) at 820A.
28
African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 565 D-E.
29
For example, Ndlovu v Murandu 1999 (2) ZLR 341 (H), where a legal practitioner who assisted his
client in applying for an order confirming the unlawful cancellation of a contract which he knew was
legally binding, was deprived of his fees. See also Brenner’s Service Station & Garage (Pty) Ltd v
Milne & Anor 1983 (4) SA 233 (W).
30
G R Engineering (Pvt) Ltd & Anor v Mitre Engineering (Pvt) Ltd & Anor HB-29-2005.
31
See for example, Maposa v Digglefold Development Assoc & Anor HH-47-07.

21
— i.e. that their truth is within his knowledge — or that the source of the practition-
er‘s information is identified.
It is an invaluable asset for legal practitioners that judicial officers should recognise
their honesty and have full confidence in the truth of statements they make or assur-
ances they give. This is an asset which practitioners can very easily lose if they ever
betray the trust and confidence reposed in them by the courts.32
Misleading the court: concealment of facts
A legal practitioner must never knowingly mislead the court, directly or by omission,
but must always act fairly and in good faith.33 Particularly in chamber applications,
there must be full disclosure of all material facts (i.e. of all matters that are material to
the granting of the application and of which the practitioner is aware). A legal practi-
tioner must not assist a client to conceal any such facts.34
On the other hand, a legal practitioner who knows of facts which would assist his or
her adversary in court is not under a duty to inform his or her adversary or the court of
those facts, if to do so would prejudice the practitioner‘s own client. But if a practi-
tioner knows that a relevant affidavit has been filed in the proceedings and is therefore
notionally within the knowledge of the court, then the practitioner has a duty to in-
form the judicial officer of its existence if the judicial officer has overlooked it.35
In defended matters the duty of disclosure may be stated as a duty not actively to mis-
lead the court. The duty would not extend to requiring disclosure of weaknesses in
one‘s own case, but might cover the suppression of a fact, unknown to the other side,
which would completely disentitle one‘s client to the relief claimed.
There is no clear demarcation between honourable disclosure and assisting the other
side, but nonetheless practitioners must keep on the right side of the dividing line be-
tween the two.
Argument: Citation of authorities, even adverse authorities
Argument in court must never be misleading, either on the facts or the law. Careless-
ness is frowned on in this regard.36 Legal practitioners are expected to know the law
or, if they don‘t, to make a reasonably diligent effort to ascertain it.
If the practitioner is aware of any authority, whether case law or statute, that goes
against the argument which he or she is putting to the court, then the practitioner must
bring that authority to the attention of the court, even where the other side is legally
represented.37 In the first instance the practitioner may inform opposing counsel of
the authority (assuming it is not cited in counsel‘s heads of argument), but if opposing
counsel does not refer it to the court then the practitioner must do so. Failure to do so
is unethical and betrays the trust which the court reposes in the practitioner.

32
Holmes v Law Society, Cape, & Anor 2006 (2) SA 139 (C) at 149-150.
33
See Principle 14.01 of the Guide to the Professional Conduct of Solicitors (1990) published by the
Law Society, London: ―A solicitor who acts in litigation, whilst owing a duty to his client to do his
best for him, must never deceive or mislead the court.‖
34
Executive Assistance Training Centre (Pvt) Ltd v ZESA Pension Fund & Ors HB-1-2006.
35
Paragraph 2 of the commentary to principle 14.01 of the Guide to the Professional Conduct of Solici-
tors (1990) published by the Law Society, London.
36
S v Khumalo HB-70-1991.
37
Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H) at 596.

22
Unwarranted allegations
A legal practitioner should not make allegations in legal proceedings that are intended
only to insult, degrade or annoy the other side, or any witness or other person. 38 If
possible, a practitioner should also avoid naming in open court persons who are not
witnesses or parties to the proceedings, if naming them is likely to bring their charac-
ters into disrepute. Instead, the practitioner should ask the court to receive their
names and addresses in writing, rather than allow their names to be revealed in pub-
lic.39
Interviewing witnesses
Generally
Generally, it is most improper to interview a witness who is still giving evidence (e.g.
during an adjournment).40 It can only be done after informing the court and explain-
ing to the court why it is necessary to do so. A prosecutor who does this is guilty of
unprofessional conduct, which amounts to a gross irregularity that may warrant set-
ting aside the proceedings.41
To tamper with a witness by trying to get the witness to change his or her evidence is
serious misconduct. In the same vein, it is improper to offer payment to a witness
contingent upon the nature of the evidence the witness gives, or upon the outcome of
the case.42 Clearly such a payment is likely to have a material effect on the witness‘s
evidence. On the other hand, it is not improper to offer to pay a witness‘s expenses
for attendance at court, so long as the payment is not made contingent on the nature of
the witness‘s evidence or the outcome of the case.
Witnesses‘ statements should not be taken on oath. It is improper to do so in civil
cases.43 The only reason for taking such a statement on oath is to make the witness
fear perjury charge if he or she departs from the statement; hence making a witness
swear an affidavit is a form of undue influence. The rule (against taking witnesses‘
statements on oath) should also apply to criminal cases.44 Needless to say, the rule
does not apply to proceedings such as applications, where the evidence of witnesses is
normally adduced by means of affidavits.
Civil cases
In civil cases, a legal practitioner can interview anyone as a prospective witness,
whether or not that person has been interviewed or subpoenaed by the other side. If,
however, the person has been interviewed or subpoenaed by the other side, a legal

38
Principle 14.02 of the Guide to the Professional Conduct of Solicitors (1990) published by the Law
Society, London.
39
Commentary 2 to principle 14.03 of the Guide to the Professional Conduct of Solicitors (1990) pub-
lished by the Law Society, London.
40
See Rule VI(d)(ii) of the rules of the Bar Association: ―It is in general undesirable for Counsel to
interview any witness after he has been sworn … It is improper for Counsel to interview a witness who
is under cross-examination, unless circumstances make such an interview necessary. Where such cir-
cumstances exist Counsel who desires to hold the interview must inform his opponent before doing so.‖
41
S v Wise 1974 (2) RLR 194 (A).
42
Principle 4.06 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London.
43
Hersman v Angilley 1936 CPD 386; Mapuranga v Mungate 1997 (1) ZLR 64 (H)
44
Cf S v Moyo 1989 (3) ZLR 250 (S).

23
practitioner should notify the other side‘s practitioner before interviewing the per-
son.45 And if such a person is interviewed, it should be done only with a view to de-
ciding whether or not the person should be called or in order to obtain information
which may lead to the obtaining of other evidence. The interview should not be used
to obtain material for cross-examining the person should he or she be called by the
other side.
Criminal cases
In criminal cases, the defence may not interview State witnesses to find out what their
evidence will be, unless the prosecutor consents.46 On the other hand, if the State
does not call one of the people it has told the defence it will call as a witness, then it
must make that person available to the defence.
To avoid problems arising over the interviewing of State witnesses, practitioners
should always ask the prosecutor to provide them with the names of persons whom
the State intends to call as witnesses. A prosecutor must provide such a list when
asked for it.
Reid Rowland (Criminal Procedure in Zimbabwe, pp 18–32-3) recommends that
prosecutors should not interview State witnesses, other than expert witnesses, unless it
is necessary to clarify the witness‘s evidence in the prosecutor‘s mind. Any such in-
terview should be conducted with a colleague present. In the case of expert witnesses,
on the other hand, an interview is often a good thing because it may give the prosecu-
tor an insight into the nature and importance of the technical evidence which the wit-
ness will be giving.
Examination of witnesses
When examining and cross-examining witnesses, the legal practitioner must be fair,
and must not try to adduce irrelevant or inadmissible evidence. Bullying a witness is
not permissible.47 While cross-examination may be a powerful engine for eliciting the
truth, cross-examination by harassment is one of the greatest impediments to the
truth.48 It must be avoided.
Freedom of speech: defamation
A legal practitioner must have a considerable degree of freedom in laying his or her
client‘s case before the court. Hence a practitioner who, in the interests of a client,
makes a defamatory statement in court, or in pleadings, is protected by qualified privi-
lege if he or she proves that the statement was relevant to the question at issue in the
case. If the practitioner proves this, then it is for the person suing the practitioner for

45
International Tobacco Corp (SA) Ltd v United Tobacco Co (South) Ltd 1955 (2) SA 1 (W) at 12.
46
In S v Sefadi 1995 (1) SA 433 (D), it was held that the provisions of the South African Constitution
conferring a right of access to information and a right to a fair trial might require reconsideration of this
rule. There is no provision in our Constitution dealing with access to information, but sec 18(2) does
provide for a fair hearing in criminal cases. So, of course, does the common law. Hence even in Zim-
babwe this rule may need to be reconsidered. Until it is reconsidered, however, practitioners should
observe it.
47
S v Jakarasi 1983 (1) ZLR 218 (S) at 225: ―I trust that prosecutors will remember that they are of-
ficers 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 [i.e. prosecu-
tors] are entitled to expect from the witnesses.‖ (per Baron ACJ). See also S v Gidi & Anor 1984 (4)
SA 537 (C).
48
R.J. Gerber Lawyers, Courts and Professionalism (1989) Greenwood Press, New York, page 111.

24
defamation to prove that even though the statement was relevant it was not supported
by reasonable grounds or that the practitioner, in making the statement, acted with an
improper motive.49 This applies to statements made in civil and criminal cases.
The legal practitioner is not obliged to satisfy himself that the statement is true. He
may accept the instructions of his client but should consider himself as upon his in-
quiry as to the reliability of those instructions. If he obtains the information from
someone other than his client, he should satisfy himself that the information is correct
before using it.
In all cases, though, it is an elementary principle of common sense for a practitioner to
take every reasonably possible step to verify a defamatory allegation before putting it
to a witness in court — in the interests of the practitioner‘s professional reputation, if
nothing else.
When the profession was divided into advocates and attorneys, an advocate who ob-
tained defamatory information from his instructing attorney and then put it to a wit-
ness in court was protected from a defamation action unless he knew the statement to
be untrue or had no reasonable ground for believing it might be true. The basis of the
rule was that the advocate was entitled to assume that the matter had been sifted and
that the allegation could be proved if necessary.50 It is submitted that the rule contin-
ues to apply in a fused profession, where a legal practitioner receives defamatory in-
formation from another practitioner.
Duty to the Client
A legal practitioner must give of his best in his client‘s interests but at the same time
must have regard to his other duties, which may conflict with the interests of his cli-
ent. He must represent his client with diligence, with reasonable skill and learning,
and with competence and honesty. He must never wilfully deceive his client.51 He
must keep his client‘s affairs confidential and must never descend into dishonourable
or unfair conduct. Absence of due diligence amounts to negligence, which may be
misconduct.
Acceptance or refusal of work
It is not altogether clear whether a legal practitioner is under an obligation to accept
work. In a divided profession, advocates (i.e. litigation specialists) must generally
accept all work that is offered to them, provided that it is work in the courts and in the
fields in which the advocate professes to practise.52 This is so particularly in criminal
cases, because people charged with criminal offences must be able to secure legal rep-
resentation. Attorneys on the other hand are entitled to accept or refuse any work,
with certain exceptions: e.g. they should take work from an established client where
the client is faced with an emergency such as an arrest; and if the attorney is prac-
tising in a small town where there are no other practitioners available, he or she

49
See Neethling, Potgieter & Visser Law of Delict 3rd ed p. 345. See also Joubert & Ors v Venter
1985 (1) SA 654 (A).
50
Joubert & Ors v Venter 1985 (1) SA 654 (A)
51
Law Society of Southern Rhodesia v Q 1958 R & N 495 (SR), where a practitioner was suspended for
12 months for preparing a forged mortgage bond in an attempt to persuade his clients that he had in-
vested their money in a mortgage.
52
Rule VI (a) of the Rules of the Bar of Zimbabwe (1982). The rule states that any action that is de-
signed to interfere with the advocate‘s duty to accept briefs is an interference with the course of justice.

25
should try to provide legal services to the people in the town who need them. But
generally attorneys are under no duty to take on work that they do not want.53
In a fused profession, it is probable that the rules applicable to attorneys prevail, un-
less the practitioner is a member of the de facto Bar, in which case he or she is bound
by the professional rules applicable to the Bar. Even if a litigation specialist is not a
member of the de facto Bar, it is submitted that the rule applicable to advocates will
apply to him or her, because of the need to ensure that people who are charged with
criminal offences or who otherwise become involved in litigation can get legal repre-
sentation.
What is certain is that practitioners must take their share of legal aid work, unless
there are legitimate grounds for refusal such as conflict of interest.
On the other hand, a legal practitioner must not take on work in which he or she can-
not represent the client with competence or diligence. 54 It is not always an excuse for
a practitioner to say that he or she was overstretched and had too much work on hand
to give proper attention to a client‘s case: in such circumstances the practitioner
should not have taken on the client‘s case in the first place.
Where a practitioner receives instructions not from a client directly but from someone
who purportedly represents the client (for example, where a person who purports to be
a director or employee of a company asks the practitioner to take on work for the
company) it is an elementary precaution for the practitioner to make reasonable en-
quiries to confirm that the person who gave the instructions really does represent the
client.
Professional competence
A legal practitioner should not take on work which he or she is not competent to han-
dle. The Canadian Bar Association puts the matter well in its Code of Conduct:
―The lawyer should not undertake a matter without honestly feeling either competent to
handle it, or able to become competent without undue delay, risk or expense to the client.
The lawyer who proceeds on any other basis is not being honest with the client. This is
an ethical consideration and is to be distinguished from the standard of care that a court
would apply for purposes of determining negligence. … Competence involves more than
an understanding of legal principles; it involves an adequate knowledge of the practice
and procedures by which those principles can be effectively applied. To accomplish this,
the lawyer should keep abreast of developments in all areas in which the lawyer practises.
The lawyer should also develop and maintain a facility with advances in technology in
areas in which the lawyer practises to maintain a level of competence that meets the
standard reasonably expected of lawyers in similar practice circumstances.‖55
Degree of skill and competence expected of practitioners
The client is entitled to expect from his practitioner the general level of skill currently
possessed by members of the profession.56

53
See Principle 9.01 of the Guide to the Professional Conduct of Solicitors (1990), published by the
Law Society, London.
54
See Principle 9.03 of the Guide to the Professional Conduct of Solicitors (1990), published by the
Law Society, London.
55
Paras 3 and 4 of the commentary on the rules set out in Chapter II of the Code of Conduct.
56
See generally Randell & Bax The South African Attorneys Handbook 3rd ed pp. 106-7.

26
In Honey & Blanckenberg v Law 1965 RLR 685 (G) at 691 (1966 (2) SA 43 (R) at
46), Goldin J said:
―An attorney‘s liability arises out of contract and his exact duty towards his client de-
pends on what he is employed to do … In the performance of his duty or mandate, an at-
torney holds himself out to his clients as possessing adequate skill, knowledge and learn-
ing for the purpose of conducting all business that he undertakes. If, therefore, he causes
loss or damage to his client owing to a want of such knowledge as he ought to possess, or
the want of such care as he ought to exercise, he is guilty of negligence giving rise to an
action for damages by his client … Where an action is brought by the client against his
attorney for negligence, the [client] must prove that there was such a want of skill or care
as to amount to a breach of contract. The test for establishing negligence is whether he
has been proved to be guilty of such failure as no attorney of ordinary skill would be
guilty of if acting with reasonable care. He will not be guilty of negligence merely be-
cause he committed an error of judgment whether on matters of discretion or law.‖
But in regard to errors of judgment, it was said in Mouton v Die Mynwerkersunie
1977 (1) SA 119 (A):
―In my opinion, however, this does not exclude the possibility of liability where the error
of judgment is due to the lack on the part of the attorney of the required degree of
knowledge, skill or care.‖
Practitioners are not expected to know all the law, but if a practitioner considers a ma-
terial point to be difficult or doubtful he should take counsel‘s opinion if the client
instructs him to do so — and in appropriate cases he should suggest or recommend to
the client that counsel‘s opinion be sought.57 If he does so and acts on that opinion, he
will not be liable for negligence so long as counsel was, in his judgment, a competent
person, and the full facts were laid before counsel, and the question was a difficult one
which he could not reasonably have been expected to answer himself.58
One cannot expect a legal practitioner with a generalised practice to have the same
degree of skill and knowledge in a specialised branch of the law (e.g. patents, copy-
right, water law) as a practitioner who specialises in that branch. But it is culpable for
a practitioner to handle a case which he must know is beyond his capacity or which
requires specialist knowledge which he does not possess — unless he has explained
the position fully to his client and the client has instructed him to proceed.59
In litigious work, the practitioner must select the proper court in which to sue, must be
clear as to his client‘s cause of action, must make himself master of his client‘s case
and inform the client of the evidence that will be needed and what documents are re-
quired; he must subpoena the necessary witnesses and comply with the rules of pro-
cedure.

57
See paragraph 6 of the commentary on the rules set out in Chapter II of the Canadian Bar Associa-
tion: ―The lawyer must be alert to recognize any lack of competence for a particular task and the dis-
service that would be done the client by undertaking that task. If consulted in such circumstances, the
lawyer should either decline to act or obtain the client‘s instructions to retain, consult or collaborate
with a lawyer who is competent in that field. The lawyer should also recognize that competence for a
particular task may sometimes require seeking advice from or collaborating with experts in scientific,
accounting or other non-legal fields. In such a situation the lawyer should not hesitate to seek the cli-
ent‘s instructions to consult experts.‖
58
Randell & Bax The South African Attorneys Handbook 3rd ed p. 107
59
Mavheya v Mutangiri & Ors 1997 (2) ZLR 462 (H).

27
Duty to advise client
Practitioners must realise a client does not always understand his legal position and
does not know the steps to take to safeguard his interests. The practitioner must ex-
plain the nature and effect of documents to be signed.
A practitioner must provide the client with advice which is completely frank and hon-
est. This advice must be given regardless of the consequences to the practitioner —
e.g. clashing with a powerful government department.
In contentious matters a legal practitioner must advise the client on his prospects of
success, and if the practitioner‘s views change in the course of dealing with the mat-
ter, he must communicate his changing views to the client.
If the practitioner considers proposed litigation to be useless, either because the law is
against the client or because the client is unlikely to recover anything substantial from
it, the practitioner must advise the client. In such a case, if the client tells the practi-
tioner to proceed notwithstanding the advice he has given, the practitioner can contin-
ue unless he considers the client has absolutely no legal right whatever; in such an
event he must withdraw, because to continue the proceedings would be an abuse of
process. But in all cases where the client has refused to take his advice, the practi-
tioner may withdraw if he can do so without prejudicing the client.
So far as he can, a legal practitioner should advise his client about costs.
Criminal cases: A legal practitioner must advise a client as to the proper course to
take: to plead guilty or not guilty, but he must not pressure the client into pleading.
The legal practitioner must ensure that the client understands precisely what he is
charged with and, if he makes admissions, what he is admitting and what the conse-
quences of the admissions will be. If a client does not take the advice, the legal prac-
titioner is not entitled to withdraw unless the client asks him to do so or he finds it
impossible to continue.
Duty to act with reasonable diligence
Practitioners must apply due diligence to the conduct of their clients‘ affairs. They
must acknowledge instructions received, reply promptly to letters and keep their cli-
ents and correspondents informed as to the progress of events and of the reasons for
any serious delay that occurs.60 If a client‘s business is transferred from one person to
another in a firm of legal practitioners, the client must be informed and told the rea-
sons for the transfer.61
Inordinate delay in performing work, with resultant actual or potential prejudice to the
client, amounts to professional misconduct.62 Even if it does not lead to misconduct
proceedings, it may lead to the court awarding costs de bonis propriis against the legal
practitioner.

60
Randell & Bax The South African Attorneys Handbook 3rd ed p 108. See also Denton v Director of
Customs and Excise 1989 (3) ZLR 41 (H); and the Guide to the Professional Conduct of Solicitors
(1990), published by the Law Society, London, where Principle 13.01 states: ―A solicitor is under a
duty to carry out the terms of his retainer with due care and skill, proper diligence and promptness; he
must also keep his client properly informed.‖
61
Principle 8.01 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London.
62
Law Society, Cape v Visser 1965 (1) SA 523 (C); Manase v Minister of Safety & Security & Anor
2003 (1) SA 567 (Ck).

28
If a practitioner is instructed to defend an action, he will be guilty of gross negligence
if he allows judgment to be taken against the client by default, even if the client has
no defence (though in that event the practitioner should have advised the client to set-
tle the matter rather than to defend the action).
The Canadian Bar Association in its Code of Professional Conduct63 lists various ex-
amples of conduct that amounts to lack of due diligence, and it is worth noting some
of them:
 failure to keep the client reasonably informed;
 unexplained failure to respond to the client‘s telephone calls;
 failure to keep appointments with the client without explanation or apology;
 informing the client that something will happen or that some step will be taken
by a certain date, then letting the date pass without follow-up information or
explanation;
 doing the client‘s work so belatedly that its value to the client is diminished or
lost;
 slipshod work, such as mistakes or omissions in statements or documents pre-
pared on behalf of the client;
 failure to maintain office staff and facilities adequate to the lawyer‘s practice;
 failure to inform the client of proposals of settlement, or to explain them
properly;
 misleading the client about the position of a matter in order to cover up the
fact of neglect or mistakes;
failure to make a prompt and complete report when the work is finished or, if a
final report cannot be made, failure to make an interim report where one might
reasonably be expected.
A practitioner is liable for the negligence or shortcomings of his clerk or employee.64
This is an example of the personal responsibility attaching to professional persons.
Confidentiality
This goes further than legal practitioner-client privilege. Anything that would be pro-
tected by legal practitioner and client privilege under the law of evidence must be kept
confidential, but even communications which are not privileged must be kept confi-
dential unless the client consents to their being disclosed. Confidentiality extends to
any information gained while acting for one‘s client, whether gained from the client
himself or from any other source.
Even information that has become an open secret (e.g. a sale of immovable property
whose details are documented in the Deeds Registry) must not be divulged without
the client‘s consent. Gossiping about matters in hand, even if the client is not named,
is unethical.

63
Paragraph 7 of the commentary on the rules set out in Chapter II.
64
Mfaswe v Miller (1901) 18 SC 172 at 174. And see Principle 2.01 of the Guide to the Professional
Conduct of Solicitors (1990), published by the Law Society, London: ―A solicitor cannot escape re-
sponsibility for work carried out in his office by leaving it entirely to his staff, however well qualified.‖

29
A change of legal practitioners does not terminate the need for confidentiality either.
Without the former client‘s consent, the old legal practitioner may not disclose confi-
dential information without the client‘s consent, even for the purpose of putting the
new legal practitioner in the picture regarding the client‘s affairs.
The client‘s death does not terminate the need for confidentiality either, except in re-
gard to matters concerning the administration of the client‘s estate.
A legal practitioner may give evidence regarding privileged matters only with his cli-
ent‘s consent. Disclosure may also be made when it is an inherent part of the perfor-
mance of work on behalf of the client. Discovery of documents, for example, is an
inherent part of handling litigation, so long as the documents are not privileged. But
even here, if the legal practitioner thinks the client may object to disclosure, he should
check with the client and, if the client does object, he may have to withdraw from the
matter if, in his view, disclosure is legally necessary or if non-disclosure would be
dishonourable.
A legal practitioner must hand over a document if required to do so by a search war-
rant,65 but if the document is privileged the privilege continues even after the docu-
ment has been handed over, and its subsequent production in evidence may be object-
ed to on the ground of privilege. In the absence of a search warrant, however, a legal
practitioner should not give access to confidential information to the police or other
official investigators without the consent of the client.
Information may be disclosed to the legal practitioner‘s partners, but they must all
keep the information confidential. This does not extend to mere gossip about the cli-
ent.
The client‘s address is not ordinarily confidential, but it is probably best not to reveal
it.66 It should never be revealed in matrimonial cases.
Legal practitioner working for two parties
Problems can occur when a legal practitioner acts for two parties in the same matter,
but nevertheless it is by no means uncommon for them to do so, and not necessarily
improper. It frequently happens in insurance cases, for example, where a motor in-
surer nominates a legal practitioner to defend the insured in court. By defending the
insured against the claims of a third party the practitioner is protecting the interests of
both the insured and the insurance company. The practitioner‘s fee is normally paid
by the insurance company, so the company is the practitioner‘s client, but the practi-
tioner is also representing the insured, so the insured is a client as well.
If one of the parties, i.e. the insured or the insurance company, makes a disclosure to
the legal practitioner when he is acting for both of them, the practitioner may subse-
quently use that disclosure against either of the parties. For example, if the insured
makes an admission of fact to the legal practitioner, the practitioner may communicate
that admission to the insurance company, and the company may use the admission in
proceedings which it subsequently institutes against the insured.67 In such a case,
however, the practitioner would be under a duty to make it clear to the insured at the

65
Andresen v Minister of Justice 1954 (2) SA 473 (W).
66
In England it is regarded as confidential, apparently. See Principle 12.05 of the Guide to the Profes-
sional Conduct of Solicitors (1990), published by the Law Society, London.
67
Kelly v Pickering & Anor (1) 1980 ZLR 44 (G); 1980 (2) SA 753 (R).

30
outset that any admissions he might make could be passed on to the insurance compa-
ny.
When otherwise confidential information may be disclosed
As indicated above, a legal practitioner may disclose confidential information if his
client consents to the disclosure, and must do so if the client or a court instructs him
to. A legal practitioner must also hand over documents if required to do so by a
search warrant, though he should be ready to claim privilege for the documents at a
later stage. There are other exceptions to the rule against disclosure of confidential
information:
 Where a client communicates with a legal practitioner before the commission of a
crime with a view to being guided or helped in committing it, the communication
falls outside the scope of the practitioner‘s lawful mandate and so is not confiden-
tial. The practitioner may therefore disclose it.68
 A legal practitioner may reveal confidential information to the extent that it is rea-
sonably necessary to establish a defence to a criminal charge or a civil claim or
disciplinary action against the practitioner.69
 A legal practitioner may reveal information that would otherwise be confidential
to the extent that he believes necessary to prevent the client from committing a
crime which he believes on reasonable grounds is likely to result in death or seri-
ous bodily harm.70
 Under sec 26 of the Bank Use Promotion and Suppression of Money Laundering
Act [Chapter 24:24], if a legal practitioner is a party to a transaction and has rea-
sonable grounds to suspect that information which he or she has concerning the
transaction may be relevant to the investigation or prosecution of a person for
money laundering or a serious offence, he or she must report details of the transac-
tion to the Reserve Bank‘s Bank Use Promotion and Suppression of Money Laun-
dering Unit. This duty to report apparently overrides the legal practitioner‘s obli-
gation to keep the information confidential, but the duty is probably not as far-
reaching as it seems. A legal practitioner who is asked by a client to advise on a
transaction, or who draws up documents relating to a transaction for a client, does
not thereby become a ―party‖ to the transaction and so has no duty to report it un-
der the Act.magistra
Conflict of interest
A legal practitioner must ensure that he does not have any interest (material or moral)
which is adverse to his client‘s interest. However, he may continue to act for a client
despite a conflict of interest if he has fully disclosed the interest to the client and the

68
Paragraph 1 of the commentary to Principle 12.04 of the Guide to the Professional Conduct of Solici-
tors (1990), published by the Law Society, London.
69
Paragraph 7 of the commentary to Principle 12.04 of the Guide to the Professional Conduct of Solici-
tors (1990), published by the Law Society, London.
70
This statement is based on para 8 of the commentary to Principle 12.04 of the Guide to the Profes-
sional Conduct of Solicitors (1990), published by the Law Society, London. In the USA professional
people have been held liable for failing to warn against serious crimes which they know or suspect will
be committed by their clients or patients. See ―Blowing the Whistle?‖ by L. Forer in The Responsible
Judge ed J.T. Noonan and K.I. Winston (1993) Praeger USA. The same principle would probably be
applicable in Zimbabwe.

31
client, with full understanding of the disclosure and its implications, has consented to
the practitioner‘s acting in the matter.
Practitioners must ensure that when acting for one client they do not prejudice the in-
terests of another. For example, a practitioner who has acted for a debtor cannot nor-
mally act for a creditor who wishes to obtain a sequestration order against the debt-
or71, and a practitioner who has taken instructions from one party to divorce proceed-
ings cannot thereafter act for the other party.72 And a practitioner who has been called
upon as a mutual friend to mediate in a dispute between husband and wife cannot
thereafter represent the husband or the wife in divorce proceedings after his attempts
at mediation have failed.73 Where clients have conflicting interests, e.g. rival appli-
cants for a licence or permit, the practitioner should tell them he cannot act for either.
A legal practitioner who has acquired information when acting for a former client
cannot disclose that information or use it against the former client. So if a new client
asks him to institute proceedings against the former client, and the information he has
previously acquired is relevant to those proceedings, the practitioner is placed in an
impossible position: he is duty-bound to tell the new client everything he knows
about the matter, but at the same time he cannot disclose the relevant information be-
cause it is confidential. So the practitioner must ask the new client to instruct another
practitioner.
A legal practitioner who is a member of a public body (for example, a local authority
or a disciplinary committee of a professional body) should not appear professionally
representing a client before that body, and should not advise a client on the legality of
a decision made by that body. Even after the practitioner has ceased to be a member
of the body, he should not advise clients on the legality of decisions made by the body
while he was a member.74
Conflicting interests include the interests of associates such as partners or family; or
the interests of an existing client; or the need to preserve a former client‘s confidenc-
es; or cases where the legal practitioner is in a position where he would be duty
bound to divulge the client‘s confidences. And when considering whether there is a
conflict of interests, a practitioner‘s partners are to be equated with him: for example,
it is improper for a member of a firm of practitioners to represent an insolvent who is
applying for rehabilitation if another member of the firm is the insolvent‘s trustee.75
Exceptions:
1. large corporations often spread their legal work round several firms, and in
such cases a member of a firm that deals with, say, conveyancing work for an
insurance need not refuse to act for a client who wishes to sue that company
under a life policy.

71
Kirkwood Garage (Pty) Ltd v Lategan & Anor 1961 (2) SA 75 (E).
72
Mutanga v Mutanga 2004 (1) ZLR 487 (H). If a legal practitioner agrees to act for one party in such
circumstances, the contract is contrary to public policy and void: Retha Meiring Attorney v Walley
2008 (2) SA 513 (D).
73
Macheka v Moyo HB-78-2003. See also para 2 of the commentary to Principle 11.01 of the Guide to
the Professional Conduct of Solicitors (1990), published by the Law Society, London. Apart from the
conflict of interest there is, of course, considerable potential for the misuse of confidential information.
74
Paragraphs 5 and 6 of the commentary to Chapter X of the Canadian Bar Association‘s Code of Pro-
fessional Conduct.
75
Ex parte Venter 1935 (1) PH C44 (C). See also Pertsillis v Calcaterra & Anor 1999 (1) ZLR 70 (H).

32
 2. If an existing client engages another practitioner to deal with a matter, there
is no conflict of interest in the practitioner acting for the other side in that
matter, so long as he or she does not have relevant confidential information
about that existing client.
3. If the conflict emerges when the legal practitioner has already been engaged
in the matter, it may be more prejudicial to the client for the practitioner to
withdraw. In such a case, so long as there is full disclosure by the practitioner
and informed consent by the client, the practitioner can continue to act.
Conflict: Acting for both parties
The general principle is that where there is a dispute between parties, the same legal
practitioner or firm cannot act for both parties; but where there is no dispute the dual
role may be performed under certain safeguards.
Acting for co-accused in a criminal case can cause difficulties if, in the course of the
trial, their interests diverge. Generally one should try to avoid having to act for both
parties in such circumstances. A legal practitioner who finds that there is a conflict in
the defence of two accused whom he is representing must immediately withdraw from
the defence of one of them, allowing himself free rein to defend the other.76 The prac-
titioner should also consider asking for a separation of trials, to avoid the duty of
cross-examining his former client.77
In non-contentious matters, such as drawing up a sale agreement, practitioners may
act for both sides, subject to the following safeguards:
 He must disclose to each party his relationship with the other.
 He must explain to each party the potential problems (conflict of interests)
surrounding the representation of both parties.
 There must be no likelihood of a conflict arising between the two parties, un-
less they have agreed to accept the practitioner as a mediator.
 There must be full and free consent by the parties to his representing them,
given with full understanding of what is involved.78
 If one of the parties is a regular client and the other a newcomer, the legal
practitioner should firmly propose that the newcomer be represented by an-
other practitioner and, if necessary, should assist him in obtaining one.
 He must obtain the parties‘ agreement to his disclosing confidential infor-
mation obtained from one of them to the other.
 If at any stage he feels that the matter may become contentious between the
parties, he must cease to act for either party.
A legal practitioner must not act for the other party in any matter in which he himself
is directly or indirectly interested79, if there is a conflict or potential conflict of interest

76
S v Jacobs & Anor 1970 (3) SA 493 (E). But if the practitioner has acquired information about one
of the accused which is relevant to the defence of the other, that information is confidential and cannot
be used. In such circumstances the practitioner should withdraw completely from the case.
77
S v Chisvo & Ors 1968 (2) RLR 54 (A).
78
Though in some cases it is improper even to seek that consent: Towers v Chitapa 1996 (2) ZLR 261
(H) at 276D–E.
79
A practitioner would be indirectly interested in a matter, for example, if his business interests lead
him to recommend to a client to invest in a company in which the practitioner has an interest.

33
between himself and the other party. The same applies where the conflict or potential
conflict of interest is not between himself and the other party, but between his partner
or member of his family and the other party.
Improper business or financial dealings
The general rule is that a legal practitioner acts improperly if, in undertaking or pursu-
ing any business or financial dealing on his own account, he makes use of confidential
information which he has acquired when engaged in the affairs of any of his clients.80
There are exceptions:
 Where the whole of the information is already public knowledge and the cli-
ent is either aware of what the practitioner is doing or could not possibly
have any reasonable objection to it;
 Where the whole of the information is not public knowledge but the client
consents to what is being done with full knowledge and understanding of its
implications.
The client is entitled to expect disinterested advice from the legal practitioner, and this
will be compromised if the practitioner has or acquires a personal interest in the mat-
ter.81
The client must feel free from any inhibitions in consulting the legal practitioner and
must be certain that all his confidences will be respected and never used in any service
except his own.
Contracts between legal practitioner and client
The English rule, which might well be applied in this country, is that contracts be-
tween a legal practitioner and his client are presumed to have been entered into
through the practitioner‘s undue influence. This does not apply to:
 The contract establishing the legal practitioner-client relationship;
 Run-of-the-mill contracts entered into in the ordinary course of the client‘s
business (e.g. if the client is a shopkeeper, sales to the practitioner at the
shop; or if the client is a bank, the keeping of the practitioner‘s funds at the
bank).
The presumption is rebutted if the client has taken adequate independent legal advice
before entering into the contract.82
Practitioners should not accept gifts from their clients, unless the gifts are trivial in
value.
Improper acts of client
A legal practitioner must not participate in or support his client in anything unlawful
in which the client is engaged or contemplates engaging. He must not assist the client
to break the law and must impress on clients the need to abide by it. A legal practi-

80
Principle 12.06 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London puts it succinctly: ―A solicitor must not make any profit by the use of confidential
information for his own purposes.‖
81
See I.B.A. International Code of Ethics, rule 12: ―Lawyers should not acquire a financial interest in
the subject matter of a case which they are conducting.‖
82
See Principle 11.05 of the Guide to the Professional Conduct of Solicitors (1990), published by the
Law Society, London.

34
tioner who has agreed to act for a client is under a duty to observe the rules of profes-
sional conduct, and the client must accept the limitations imposed by those rules.
What has been said in the previous paragraph applies to conduct which, though legal,
is dishonourable — e.g. the instituting of proceedings not for asserting a right but in
order to satisfy revenge and malice. A legal practitioner should not assist his client in
getting an unfair advantage over another person, though there is obviously a grey area
between assisting the client to assert his lawful rights and obtaining an unfair ad-
vantage over someone else. A practitioner can also refuse to assist a client to do
something which, by his personal code of ethics, is dishonourable.
A legal practitioner should not advise a client on ways to circumvent the law by creat-
ing contracts and the like whose real import is different from their superficial appear-
ance: e.g. if a sale is something that is forbidden to the owner of a property, he must
not be assisted in disguising a sale as a lease.
Once a legal practitioner is engaged in a matter, he has a duty to advise his client as to
the law, even if the client wishes to engage in conduct which the practitioner regards
as dishonourable. For example, if the client wants to resile from a contract which he
should honourably abide by, the practitioner must give proper legal advice on the is-
sue.
The ultimate criterion is: was the legal practitioner‘s conduct consistent with honesty
and fair dealing.
Criminal cases: defending the admittedly guilty
If an accused person in a criminal case admits to his legal practitioner that he commit-
ted the offence, but insists that he will not plead guilty, what is the practitioner‘s duty?
MacDonald CJ said, in an address to the Law Society83, that if a defending lawyer had
a confession from his client, he could not proceed with the case unless the client
pleaded guilty. This, it is submitted, is wrong: accepted practice in South Africa and
the UK84 is that the legal practitioner may allow the client to plead not guilty (which
the client is entitled to do) but cannot allow evidence to be adduced which would con-
flict with the client‘s admission. What the practitioner may do in such circumstances
is set out in the following passage from the Canadian Bar Association‘s Code of Con-
duct:
―[I]f the accused clearly admits to the lawyer the factual and mental elements necessary to
constitute the offence, the lawyer, if convinced that the admissions are true and volun-
tary, may properly take objection to the jurisdiction of the court, or to the form of the in-
dictment, or to the admissibility or sufficiency of the evidence, but must not suggest that
some other person committed the offence, or call any evidence that, by reason of the ad-
missions, the lawyer believes to be false. Nor may the lawyer set up an affirmative case
inconsistent with such admissions, for example, by calling evidence in support of an alibi
intended to show that the accused could not have done, or in fact had not done, the act.
Such admissions will also impose a limit upon the extent to which the lawyer may attack
the evidence for the prosecution. The lawyer is entitled to test the evidence given by
each individual witness for the prosecution and argue that the evidence taken as a whole

83
Reprinted in 1977 RLJ 115.
84
See para 5 of the commentary to Principle 14.14 of the Guide to the Professional Conduct of Solici-
tors (1990), published by the Law Society, London.

35
 is insufficient to amount to proof that the accused is guilty of the offence charged, but the
lawyer should go no further than that.‖85
The legal practitioner must explain all this to the client. In addition, where the trial is
to be held in a magistrates court, he must explain that under sec 188 of the Criminal
Procedure and Evidence Act [Chapter 9:07] the defence is required to file a document
outlining the nature of the defence and the material facts on which the defence relies,
and that the court may draw adverse inferences from a failure to file such a document.
In the circumstances it may not be possible for the practitioner to file such a defence
outline.
The legal practitioner must remember that he ―may not assert that which he knows to
be a lie. He may not connive at, much less attempt to substantiate, a fraud.‖86
Improper threats
A legal practitioner must not seek to advance his client‘s cause by issuing threats of
injury (in a wide sense) to anyone. An expression of a firm and lawfully conceived
intention is not an improper threat, even though it has a threatening aspect. So in the
course of discussing a settlement between competing groups in a private company it is
not improper for a legal practitioner to say that his client will apply for the company
to be wound up if the dispute is not settled.
Much depends on the way in which a threat is uttered. It is not easy to define what is
an improper threat; it‘s easier to give examples of them.
Illegal threats: These obviously must not be made. A threat that amounts to extortion
or blackmail, or a threat of illegal harm, is obviously improper. Even a threat to re-
port a thief to the police if he doesn‘t pay back what he has stolen is illegal, since it
amounts to compounding. But if the thief offers to pay back the money in considera-
tion for not prosecuting him, the legal practitioner can probably advise his client to
accept the offer.
Using costs as a threat: While it may be permissible to point out to the other side
when negotiating a settlement that if there is no settlement further costs will be in-
curred, it is improper to say: ―My client will take this case all the way to the Supreme
Court if necessary, and while he can well afford the costs it will ruin you (the oppo-
nent).‖
Exposure of past misconduct: It is improper to note that an opponent‘s past miscon-
duct will be brought out if the case goes to trial.
Threatening children’s interests: It would be improper for a legal practitioner, repre-
senting a husband in a divorce action, to try to get the wife to agree to a settlement by
threatening to claim custody of the children.
Improper claims: It is improper to make a claim unless it appears to the legal practi-
tioner prima facie that the claimant has some right to what is claimed. Conversely, it
is improper to resist a manifestly just claim. But, with the approval of the client, a
practitioner can make a claim that has prescribed, since prescription has to be specifi-
cally pleaded and cannot be raised mero motu by the court.

85
Paragraph 11 of the Commentary to the rule stated in Chapter IX of the Code.
86
Rondel v W [1966] 1 All ER 467 (QB) at 479.

36
Excessive demands: Grossly excessive demands should not be made, though in claim-
ing general damages one should err on the side of excess rather than pitch the claim
too low.
Generally, when writing a letter of demand, a legal practitioner should not demand
anything beyond what is recoverable under due process of law, nor should he threaten
the debtor with anything other than court action if the debt is not paid. For example,
he should not threaten to report the matter to the debtor‘s employer or to the press.87
Settlements and compromises
A legal practitioner‘s general authority to act for a client probably extends to com-
promising or settling the client‘s case even if the client has not given the practitioner
specific authority to do so:
―Counsel properly instructed to appear on behalf of a litigant has implied authority to
conclude a settlement of the litigation on behalf of his or her client, provided that he or
she acts bona fide in the interests of the client and not contrary to specific instructions. ...
An instructing attorney of record stands in the same position at any stage prior to the as-
sumption of control of the matter by counsel ... , but subject to the caveat that that the
matter does not involve any matter collateral or extraneous to the action.‖ 88
A party to litigation can limit his practitioner‘s authority to agree to a compromise or
settlement, but unless the other party has been informed of that limitation, whether
expressly or by implication, the party is bound by any settlement the practitioner may
negotiate in breach of his instructions.89 If, in the face of such a limitation, a practi-
tioner does exceed his instructions and negotiate a settlement, he will be personally
liable to his principal for any loss the principal may suffer.
Even though he may have general authority to do so, therefore, a legal practitioner
would be most unwise to settle a case without the client‘s specific consent.
On the other hand, practitioners should always encourage the settlement of contested
cases because it is usually in the interests of the contestants that there should be a set-
tlement rather than that matters should proceed to trial and judgment.
The I.B.A.‘s International Code of Ethics states in Rule 11:
―Lawyers shall, when in the client‘s interest, endeavour to reach a solution by settlement
out of court rather than start legal proceedings. Lawyers should never stir up litigation.‖
And the Canadian Bar Association‘s Code of Professional Conduct states:
―Whenever the case can be settled reasonably, the lawyer should advise and encourage
the client to do so rather than commence or continue legal proceedings.‖90
On being offered a settlement, a practitioner must inform the client of the offer and
advise on it.
The client‘s interests, not the practitioner‘s, must dictate the decision to settle. In ne-
gotiating a settlement, the practitioner must not try to cheat the opposing side or em-
ploy unfair tactics. He must conduct the negotiations with honourable candour,

87
Principle 15.07 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London.
88
Ivoral Properties (Pty) Ltd v Sheriff, Cape Town & Ors 2005 (6) SA 96 (C) at 119 D-F. See also
MEC for Economic Affairs, Environment & Tourism v Kruisenga & Anor 2008 (6) SA 264 (Ck HC) at
294-296 and Klopper v van Rensburg 1920 EDL 239
89
MEC for Economic Affairs, Environment & Tourism v Kruisenga & Anor 2008 (6) SA 264 (Ck HC)
90
Chapter IX, Guiding Principle No. 8.

37
though with due regard to the confidentiality of information that his client has given
him.91 The practitioners on both sides should ensure that each of them understands
the negotiations are without prejudice.92
If settlement is reached after judgment has been reserved, the legal practitioners in-
volved must advise the court through the registrar or clerk of court. It is improper to
allow judgment to be delivered regardless of the settlement.
Change of practitioner by client
A client can terminate the legal practitioner-client relationship at any time. This ap-
plies even where the client is compelled to engage a particular practitioner, e.g. if he
is an insured who is bound by the insurance policy to be represented by a practitioner
chosen by the insurance company. If the insured decides to go to another practitioner,
the insurance company‘s practitioner must allow him to do so: any consequences re-
sulting from the insured‘s breach of the insurance policy are for the insured and the
insurance company to sort out, and the most the insurance company‘s practitioner can
do is to point out to the insured what those consequences are.
Upon termination of his mandate, a legal practitioner is entitled to recover all proper
fees and disbursements payable up to the time of termination. The practitioner must
account to the client for all money held for the client in the practitioner‘s trust ac-
count, and must hand over the client‘s papers in accordance with the client‘s instruc-
tions — this usually means handing them over to the client‘s new practitioner. But
the discharged practitioner has a lien on all papers which he prepared for the client
(not on any other papers) as security for the payment of his costs, so he can retain
those until his fees are paid. It is improper to claim a lien over any other papers or to
refuse to hand over those other papers.
The discharged practitioner also has a duty to assist his successor with all proper in-
formation, including confidential information if the client so consents, to facilitate the
successor‘s pursuit of the client‘s case.
The successor legal practitioner must refer to the discharged practitioner before ac-
cepting the client‘s instructions. This is because (1) the discharged practitioner must
not be left in doubt as to whether he has been discharged; and (2) so that the succes-
sor can satisfy himself that the discharged practitioner has been paid what is due to
him. If he has not, the successor is expected to help his predecessor in recovering
what is fairly due, i.e. to refuse to take on the client until the predecessor has been
paid. But he should not refuse to take on a client merely because he has failed to get
on with another practitioner.
This applies only to work in hand. If a new practitioner is engaged to do fresh work,
he has no duty to consult his predecessor.

91
But see Pocock v AFC 1995 (2) ZLR 367 (S), where the court noted that lawyers had deliberately
prolonged settlement negotiations, when they were aware that the lawyers on the other side were una-
ware of looming prescription of their claim. The court said this conduct could not be described as un-
ethical.
92
Statements made ―without prejudice‖ in the course of negotiations to settle a dispute cannot be dis-
closed in evidence without the consent of all parties. See Hoffmann & Zeffertt S.A. Law of Evidence
4th ed p. 196ff.

38
Change of practitioner by legal practitioner
When a legal practitioner has accepted an engagement to handle a matter for a client,
he is under a duty to see it through to conclusion to the best of his ability and not to
withdraw without good reason, except with the client‘s free and entirely willing con-
sent.
Reasons for withdrawal include:
 improper conduct on the part of the client, e.g. giving false evidence; trying
to get the legal practitioner to act contrary to his professional duty; or fraud
or false representation;
 personality clash with the client, resulting in the practitioner being unable to
do his best for the client. In such a case the practitioner should hesitate to
claim a fee from the client and must try to assist the client to get other repre-
sentation;
 inability to obtain clear instructions from the client;
 refusal by the client to accept the practitioner‘s advice;
 failure to provide funds to continue with the matter. But the fact that the cli-
ent has not provided funds should not be disclosed to the court, and if the
practitioner renounces agency for that reason, he should inform the client of
his rights;93
 the client hindering or preventing the practitioner from conducting the case;
 insolvency, death or liquidation of the client.
A practitioner who terminates his relationship with a client for inadequate reason is
not entitled to his fees.94
Where it is the legal practitioner who terminates the lawyer-client relationship, the
same position applies regarding the lawyer‘s files as obtains when the client termi-
nates the relationship.
A legal practitioner cannot renounce agency in an appeal more than three weeks after
it has been set down for hearing, or without giving less than a month‘s notice to the
Registrar and the client and the other parties to the appeal.95
Duty to Third Parties
The practitioner-client relationship imposes a duty on the legal practitioner to advance
his client‘s interests, even where it will cause harm to the opposite party to do so, and
if harm is caused to the opposite party a legal practitioner will generally incur no lia-
bility since he is not a guardian of that party‘s interests. But he must not advance his
client‘s interests at all costs: the legal practitioner-client relationship will not protect
him against unlawful conduct such as fraud.
A practitioner has been found liable to an intended beneficiary of a client‘s will which
the practitioner drew up negligently so as to deprive the beneficiary of a legacy which

93
S v Martin 1988 (2) ZLR 1 (S), where the practitioner had renounced agency before the hearing of an
appeal and had informed the court that he had done so because he had not been put in funds, and fur-
ther failed to tell the client (the appellant) that he had no right of audience before the Supreme Court.
94
Goodricke & Son v Auto Protection Insurance Co Ltd 1968 (1) SA 717 (A).
95
Rule 12A of the Rules of the Supreme Court, 1964.

39
the client-testator intended him to have.96 A practitioner may also be liable to persons
who he knows are relying on his skill to save them from harm. This is the so-called
―assumption of responsibility‖ test.97 There is no reason in principle why a lawyer
should not be liable under the Lex Aquilia for negligence to a third party so long as all
the elements of Aquilian liability are present.98
There is no all-embracing test as to when a practitioner may be liable towards third
parties: the question of wrongfulness depends on legal policy.99
Duty to Other Practitioners and to the Profession
Generally
The I.B.A. International Code of Ethics states in rule 4:
―Lawyers shall treat their professional colleagues with the utmost courtesy and fairness.
Lawyers who undertake to render assistance to a foreign colleague shall always keep in
mind that the foreign colleague has to depend on them to a much larger extent than in the
case of another lawyer of the same country. Therefore their responsibility is much great-
er, both when giving advice and when handling a case.‖
And the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London, states in Principle 16.01:
―A solicitor must act towards other solicitors with complete frankness and good faith con-
sistent with his overriding duty to his client.‖
A legal practitioner must act fairly towards other practitioners, particularly those who
represent the other party in litigious matters, no matter how bitter the feeling may be
between their respective clients. He must never take unfair advantage of his opposing
practitioner. If he says he will not do something, e.g. call a particular witness, then he
should not suddenly do so and surprise his opponent. Also, if a practitioner arrives in
court and his opponent is not present when the case is called, the practitioner should
not ask for judgment and costs but instead ask the court for a few minutes adjourn-
ment to allow the him to phone the opponent. Or if his opponent has not pleaded, he
should warn the opponent before barring him.100 A practitioner who applies for de-
fault judgment despite a clear indication that his opponent does intend to defend the
matter, in circumstances in which he may be accused of ―snatching at a judgment‖,
may well find that his client is penalised by being made liable for the costs of any un-
necessary proceedings generated by the practitioner‘s deviousness or pigheaded-
ness.101
Duties towards partners
A legal practitioner has the same duties towards his partners in the practice as all part-
ners owe each other: he must exercise the utmost good faith in all partnership transac-
tions; and he must account to his partners for any benefit or advantage or profit which

96
White v Jones [1995] 2 AC 207 (HL)
97
Dutton v Bognor Regis UDC [1972] 1 QB 373 (CA), cited in Road Accident Fund v Shabangu &
Anor 2005 (1) SA 265 (SCA) at 272D.
98
Maketo & Anor v Wood & Ors 1994 (1) ZLR 102 (H) at 125C. See also Tinarwo v Hove & Ors
2003 (2) ZLR 148 (H) (HH-138-03).
99
Road Accident Fund v Shabangu & Anor 2005 (1) SA 265 (SCA) at 271-2.
100
Lecture by Mr Justice McNally to final-year law students, 17.8.1993.
101
See Founders Building Soc v Dalib (Pvt) Ltd & Ors 1998 (1) ZLR 526 (H).

40
he has made in any transactions which are within the scope of the partnership business
(i.e. the legal practice), or which are in competition with, or injurious to, the partner-
ship business.102
Where a legal practitioner merges his practice with that of another legal practitioner,
the files are held by the new merged practice, and if the practitioner subsequently
leaves the merged practice he has no right to take the files with him unless the clients
have consented to his doing so.103
By-passing practitioner for other party
When acting for a client in a matter, a legal practitioner should not communicate di-
rectly with a party whom he knows is represented by another practitioner in that mat-
ter, unless that other practitioner has consented.104 He should not even discuss the
case socially with the party in the absence of the other practitioner. He may, however,
communicate directly with a party if the party‘s legal practitioner has not replied to
his correspondence or has refused, for no adequate reason, to pass on his communica-
tions to the party.105
Even if the opposing party is not legally represented, but the matter has become or is
likely to become contentious, a practitioner should not interview the opposing party,
and certainly not in circumstances in which he may have to give evidence about what
that opposing party said.106
Misleading other practitioners
A legal practitioner must never deliberately or recklessly mislead any other legal prac-
titioner. It is misconduct to do so.107 Many court cases can be resolved by discussion
between the lawyers — hence every lawyer must be able to rely on a fellow practi-
tioner‘s truthfulness as to fact (not necessarily on his opinion as to the law).
Honouring promises
A practitioner must always honour his or her word. A practitioner who fails to honour
a professional undertaking is prima facie guilty of misconduct. (In this sense, an un-
dertaking is an unequivocal declaration of intention which is given by one practitioner
to another, who reasonably places reliance on it, in the course of their practice.)108
Hence, before giving such an undertaking a practitioner must consider very carefully
whether he or she will be able to honour it.
One aspect of the duty to honour one‘s word, which is mentioned in the Guide to the
Professional Conduct of Solicitors (1990) published by the Law Society, London, is

102
Wille Principles of S.A. Law 8th ed p. 613.
103
Nel v Bester & Ors 2003 (2) SA 700 (SE).
104
See rule 7 of the I.B.A. International Code of Ethics and Principle 16.02 of the Guide to the Profes-
sional Conduct of Solicitors (1990), published by the Law Society, London.
105
Paragraph 2 of the commentary to Principle 16.02 of the Guide to the Professional Conduct of Solic-
itors (1990), published by the Law Society, London.
106
Mhene v Teubes 1986 (2) ZLR 179 (S) at 184.
107
Ben Baron & Partners v Henderson 1958 (4) SA 270 (SR), where a practitioner who sent a letter to
other practitioners which contained clear and deliberate misstatements of fact, was reported to the Law
Society.
108
Principle 17.01 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London.

41
worth noting: solicitors (i.e. legal practitioners) employed by non-lawyers are prima
facie guilty of unprofessional conduct if they take strike action or other industrial ac-
tion which is in breach of their contract of employment109, though such action would
not necessarily be a ground for disciplinary proceedings. Before taking any such ac-
tion, according to the Law Society, employed solicitors must accept their professional
obligations and:
 take appropriate action to ensure that all court engagements are met or otherwise
covered;
 ensure that any personal undertaking given by them in their professional capacities
are complied with; and
 at the earliest possible time take all reasonable steps to notify people who may be
affect by the proposed action and ensure that they suffer minimal inconvenience.
Prosecutors and other members of the Attorney-General‘s Office who are tempted to
go on strike should consider these points carefully.
Payment of advocate’s fee
A practitioner who has engaged an advocate (i.e. a member of the de facto bar prac-
tising as an advocate) must pay the advocate promptly for work which the advocate
was instructed to do, even if the practitioner‘s client has defaulted in paying the prac-
titioner‘s fee. In other words, the practitioner is personally responsible for the advo-
cate‘s fee.
Guarantees of payment in conveyancing matters
A legal practitioner is not obliged to accept another practitioner‘s guarantee that pay-
ment will be made after transfer has been effected; but if such a guarantee is accepted
the practitioner giving the guarantee must ensure that it is honoured promptly and in
full, regardless of whether his client has paid him (i.e. if necessary he must pay it out
of his own pocket).
Politeness
A legal practitioner must resist the temptation to be rude or abusive towards other
practitioners, whether in correspondence or in court, no matter how stupid or provoca-
tive the other practitioner may seem, and no matter how bitter the feeling between
their clients.
Extra-professional activities
Legal practitioners are entitled to engage in occupations outside the profession, so
long as they are not likely to bring the profession into disrepute or to interfere unduly
with their legal practice.110 If they do engage in extra-professional occupations, they
must take care to avoid any conflicts of interest and ensure that their clients are al-
ways aware of the capacities in which the practitioners are acting. For example, a
lawyer who runs an investment consultancy must ensure that his clients know when
they are receiving advice from him in that capacity, and when he is advising them as a
lawyer.

109
Principle 4.04 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London.
110
See the rule stated in Chapter VII of the Canadian Bar Association‘s Code of Professional Conduct,
and rule III(b) of the Rules of the Bar of Zimbabwe (1982).

42
Legal practitioners who run other businesses must also ensure that income from their
law practice is kept separate from any income they receive from their extra-
professional businesses, and that separate accounts are kept for them. In particular,
the trust accounts for their law practice must be kept separately.111
Practitioners who engage in extra-professional activities, including those who enter
public office or politics, must ensure that their conduct in the course of those activities
is not such as may bring the profession into disrepute. As stated in the Canadian Bar
Association‘s Code of Professional Conduct:112
―When acting or dealing in respect of a transaction involving an outside interest in a busi-
ness, investment, property or occupation, the lawyer must … adhere throughout the
transaction to standards of conduct as high as those that this Code requires of a lawyer
engaged in the practice of law.‖
And similarly, in regard to practitioners in public office, the Canadian Code states:113
―The lawyer who holds public office should, in the discharge of official duties, adhere to
standards of conduct as high as those that these rules require of a lawyer engaged in the
practice of law.‖
In a footnote to that rule, the Code mentions a case114 in which the Montreal Bar
brought disciplinary proceedings against a Minister for criticising the conduct of a
judge; though the court apparently found the Bar had no jurisdiction, the fact that
proceedings were brought at all is significant.
Reporting of misconduct
There does not seem to be a generally recognised duty on legal practitioners in Zim-
babwe to report cases of misconduct on the part of other practitioners.
Advocates do have such a duty: rule 1 of the Rules of the Bar Association of Zimba-
bwe (1982) states, in part:
―It is the duty of Counsel who believes that another Counsel has acted in breach of these
rules to report the matter to the Bar Council unless the information is privileged and the
privilege has not been waived.‖
There is also such a duty in the United Kingdom. Principle 16.04 of the Guide to the
Professional Conduct of Solicitors (1990) published by the Law Society, London,
states:
―A solicitor is under a duty to report to the Solicitors Complaints Bureau, where necessary
after having obtained his client‘s consent, any conduct on the part of another solicitor
which he believes falls sort of the proper standard of conduct of the profession.‖
This duty extends to reporting misconduct on the part of members of the solicitor‘s
own firm.
It is submitted that all legal practitioners in Zimbabwe should take it upon themselves
to report to the Law Society actual or reasonably suspected cases of misconduct on
the part of other practitioners. The profession is an honourable one, and every practi-
tioner has an interest in maintaining its honour. If even one practitioner is allowed to

111
See guiding principle 5 stated in Chapter VII of the Canadian Bar Association‘s Code of Profession-
al Conduct, and sec 23(1)(h) of the Legal Practitioners Act [Chapter 27:07].
112
Guiding principle 4 to the rule stated in Chapter VII of the Code.
113
The rule set out in Chapter X of the Code.
114
Barreau de Montreal v Claude Wagner (1968), Q.B. 235 (Que. Q.B.)

43
get away with dishonourable conduct, the whole profession may be brought into dis-
repute.
It may be noted that under by-law 67A of the Law Society By-laws, 1982, if a court
deprives a practitioner of his or her costs in any proceedings, or orders the practitioner
to pay the costs de bonis propriis, the practitioner must report that fact to the Law So-
ciety. In those circumstances, therefore, a practitioner is obliged to report his own
misconduct to the Society.

4. STATUTORY DUTIES OF A LEGAL PRACTITIONER

The first duty of a practitioner is to acquaint himself with the Legal Practitioners Act
[Chapter 27:07] and all regulations, by-laws and rules made thereunder.
Section 23(1) of Cap 27:07 sets out various forms of unprofessional, dishonourable or
unworthy conduct on the part of legal practitioners. A practitioner must not:
1. Tout or advertise.
2. Contravene the Act or any regulations, rules or by-laws made under it.
3. Withhold any payment of trust money without lawful cause.
4. Enter into a champertous transaction, except as permitted by the Act.
5. Permit anyone who is not a legal practitioner to receive any fee or income in
respect of work restricted to a legal practitioner.
6. Open or maintain an office which is not under continuous personal supervi-
sion of a legal practitioner.
7. Keep books of account for his practice jointly with an unregistered person.
8. Remunerate anyone who is not a legal practitioner by way of a share in the
profits.
9. Tender in response to an advertisement to perform legal work.115
10. Help an unregistered person recover charges for services by including those
charges in his own bill of costs, without disclosing that fact.
11. Allow his name to appear in an advertisement or letter-head in conjunction
with an unregistered person‘s name, giving the impression that he is associat-
ed with that other person in the practice of the profession of law.
12. Place himself under the control of an unregistered person so as to compromise
his professional independence.
13. Levy fees that are lower than the prescribed minimum.
Note that the list is not exhaustive: sec 23(2) allows the Council of the Society or the
Disciplinary Tribunal or a court to determine that other types of conduct constitute
unprofessional, dishonourable or unworthy conduct.
At first sight the list in sec 23(1) seems an odd one, both for what it contains and for
what it omits. Why are the really serious forms of misconduct not listed: cheating
one‘s client, lying to the court, and so on? And what is so serious about sharing one‘s
profits with an unregistered person, for example, that it merits inclusion in the list?
The answer is that most of the forms of misconduct listed in sec 23(1) are there pre-
cisely because they are not morally reprehensible, and they have been inserted in the
list to avoid any argument as to whether they amount to unprofessional, dishonourable

115
In Incorporated Law Soc v Becker 1921 TPD 407 this was held to be a form of touting.

44
or unworthy conduct. Take as an example entering into a champertous arrangement.
This, it will be explained later, means sharing the proceeds of litigation with one‘s
client: the legal practitioner is not paid a fee but receives a percentage of any damag-
es or other amount awarded to the client. There is nothing immoral about such ar-
rangements, and indeed they are common in the United States, so it might be difficult
for the Law Society to persuade a court that champerty is unprofessional, dishonoura-
ble or unworthy. Hence, to put the question beyond doubt, champerty has been listed
in sec 23(1). Other forms of conduct which really are dishonourable or liable to bring
the profession into disrepute are covered by the discretionary powers vested in the
Law Society Council, the Disciplinary Tribunal and the courts by sec 23(2).
Touting and advertising
Legal practitioners may not tout (i.e. solicit for business or pester customers)116. Nor
may they advertise, except as permitted by the Law Society in its guidelines, pub-
lished in 2000. These may be summarised:
1. Legal practitioners must conduct themselves in a manner consistent with the
good reputation of the profession. Any publicity must be in good taste with
regard to both content and usage and must not be misleading. Advertising
must not compromise or impair:
 the practitioner‘s independence or integrity or duty towards his client;
 the client‘s freedom to instruct a legal practitioner of his choice;
 the legal practitioner‘s duty to act in the best interests of the client;
 the good repute of the practitioner or the profession;
 the proper standard of the practitioner‘s work.
2. A firm‘s name and address may appear in bold type in a telephone directory
and also in the yellow pages under the title ―legal practitioners‖.
3. Business cards can be given only to people who reasonably need to have a
record of the information contained in them.
4. No advertisement may name the firm‘s clients, and a practitioner may refer to
a client‘s name in the public media only with the client‘s written consent.
5. No advertisement may compare the services of the firm with those given by
any other legal practitioners, nor may it refer to a legal practitioner‘s success
rate.
6. No advertisement may compare the legal practitioner‘s charges with those of
another.
7. No advertisement or publicity may state that a practitioner will undertake spe-
cific kinds of work for a specific charge.
8. An advertisement may state that the legal practitioner undertakes a particular
class of work only if he is able and qualified to do that work competently.
9. An advertisement may state that a firm is a specialist in a particular branch of
the law only if it has the requisite expertise in that branch.

116
In Law Society, Cape v Berrangé 2005 (5) SA 160 (C), a practitioner was held guilty of touting
where he entered into ―marketing agreements‖ with estate agents whereby he rewarded them for refer-
ring conveyancing work to his firm.

45
 10. A legal practitioner may give interviews to the press and take part in radio or
television broadcasts, and may state his name and the name of his firm. But
he must not refer to the name of a client without the client‘s written permis-
sion
Champerty
This occurs when a legal practitioner fixes his fee as a percentage or portion of the
property in dispute, for example, where he represents a client in exchange for 20 per
cent of any damages awarded. It is acceptable in the US, and it is now allowed in cer-
tain circumstances in the United Kingdom, but in Zimbabwe it is at present illegal.
In the UK litigation has traditionally been seen as socially disruptive, which is one
reason why champertous contracts have been frowned upon there, whereas in the
USA litigation is generally regarded as a socially useful way of settling disputes. Al-
so, in the USA — more so than in the UK — the practice of law is regarded as a
commercial occupation.117
Champerty is a term of art in English law and covers any contract whereby a person
with no interest in a suit agrees to assist a litigant in return for a share of the damages
or other proceeds of the litigation. In Roman-Dutch Law such contracts are called
pacta de quota litis and are void as being contrary to public policy. 118 Christie The
Law of Contract in South Africa 2nd ed p. 423, justifies the position as follows:
―The civil courts are designed primarily for the settlement of bona fide disputes between
litigants with or without the assistance of entirely disinterested members of the legal pro-
fession. Any contract disruptive of this pattern of litigation contains the seeds of injustice
and must therefore be treated as illegal and void.‖
Under Part IVA of Cap. 27:07, legal practitioners can enter into ―contingency fee ar-
rangements‖ with clients in such cases as may be prescribed by the Minister in regula-
tions (none have yet been prescribed). In any such arrangement, the maximum fee
they can claim will be limited to a prescribed percentage of the total amount awarded
to the client, or their normal fee plus a prescribed percentage of that fee. The fact that
a practitioner has entered into such an arrangement will not be allowed to be disclosed
to the court hearing the case. It is noteworthy that the legislation does not deal with
the question of costs (i.e. who will pay costs if the litigant who is being represented
under a contingency fee arrangement loses his case  does he have to pay, or does
his lawyer?).
Until contingency fee arrangements have been legitimised by regulations, any cham-
pertous contract is contrary to public policy and unenforceable. A client who has en-
tered into such an arrangement can recover any illegal payment he has made from his
legal practitioner.119
Contingency fee arrangements, when they are legitimised, may turn out to be a mixed
blessing for litigants. Lawyers may be reluctant to enter into them except in cases
where their clients (plaintiffs or applicants) have a very clear case and good prospects
of recovering substantial damages. Contingency fee arrangements will not help indi-

117
Zander Lawyers and the Public Interest (1968) Weidenfeld & Nicolson.
118
Wille Principles of S.A. Law 8th ed p. 432–3; Christie Law of Contract in S.A. 2nd ed p. 423–5;
Gramowsky v Steyn 1922 SWA 48. For a useful discussion of the validity of such contracts, see Good-
gold Jewellery (Pty) Ltd v Brevadau CC 1992 (4) SA 474 (W) at 481–5.
119
Tecmed (Pty) Ltd v Hunter & Anor 2008 (6) SA 210 (W).

46
gent defendants or respondents at all. And, as already mentioned, the question of
costs has not been worked out in connection with such arrangements.
Fees and Costs
General principle: making a profit should not be the primary goal of a legal practi-
tioner. Only reasonable fees are permitted. The Law Society regularly issues a tariff
of fees which should be charged in the absence of the client‘s written consent. The
tariff fees can be varied according to:
1. The complexity of the matter or the difficulty or novelty of the questions in-
volved.
2. The specialised knowledge, skill or responsibility required of the practitioner.
3. The place where or circumstances in which the business is transacted.
4. The amount or value of the money or property involved.
5. The importance of the matter to the client.
In many cases, the fees vary according to the practitioner‘s seniority.
Overreaching
This means the extracting of unconscionable, excessive or extortionate fees by a legal
practitioner, through taking undue advantage of a client.120 Deliberate over-charging
amounts to misconduct and the legal practitioner must avoid manifestly excessive
charging, particularly if the client is ignorant. Exceeding the Law Society‘s current
tariff of fees is unprofessional conduct, and the Society is likely to regard any fee of
more than 30 per cent above the recommended rate as ―materially different‖.
On the other hand, as was said in Cape Law Society v Luyt 1929 CPD 281:
―[I]f the prospective client is a free agent, if there is no overreaching, no fraud or duress,
no taking advantage of him, then if the client chooses voluntarily to agree to an extrava-
gant fee, I cannot say that there would be misconduct.‖
If the legal practitioner with whom a client has been dealing is unable to attend to the
client‘s affairs and another practitioner in the same firm takes over, it is not permissi-
ble for the client to be charged with the cost of the new practitioner familiarising him-
self with the client‘s papers.121
Overreaching extends to people other than clients. A legal practitioner must not assist
a client to recover from a debtor more than is lawfully due, and thus to overreach the
debtor. For example, collection charges must not be included in an amount demanded
from a debtor when they are not claimable.
More generally, a legal practitioner should not assist a client to act dishonourably, e.g.
by negotiating an unfair contract on his behalf.
Under-charging
This is also unprofessional conduct, because it is regarded as a form of touting for
custom. The Law Society‘s tariff of recommended fees is in fact a tariff of minimum
fees.
A legal practitioner must charge adequately and properly for his professional services
unless he or she is acting pro Deo or pro amico.

120
Law Society of the Cape of Good Hope v Tobias & Anor 1991 (1) SA 430 (C) at 435B.
121
Coghlan, Welsh & Guest v Levy 1979 RLR 13 (G).

47
Deposits
Deposits can be taken only in respect of work in hand or work in respect of which in-
structions are being given at the time the deposit is made. They may not be taken in
respect of future possible work.
A deposit must not exceed a reasonable estimate of the costs it is intended to cover.
A deposit must be treated as trust money and paid into the legal practitioner‘s trust
account, being drawn on as and when need to meet costs incurred.
Retainers
A retainer is a fee paid regularly to a legal practitioner to hold himself or herself
available to represent the client should the need arise.122 Only advocates may accept
retainers.
Bill of costs
A legal practitioner must not include in a party and party bill of costs any item that he
knows cannot be allowed on taxation. (It is different for a legal practitioner and client
bill of costs.)
Querying of costs by client
A client is entitled to have his legal practitioner‘s fees taxed. When taxing fees, the
taxing officer must be guided by the Law Society‘s tariff of recommended fees.
Enforcing payment of fees
A legal practitioner is entitled to enforce payment of his or her fees through litigation,
i.e. by suing the client, though it is obviously a delicate matter and he should hesitate
before instituting proceedings.
Generally, the legal practitioner must look to the client to pay the fees.
This does not apply to advocates. They may not sue for their fees, which are payable
by the instructing legal practitioner.
Pro Deo and Pro Amico work
A legal practitioner must do his or her share of pro Deo and legal aid work, and give it
the same attention as he or she would to other matters. The Minister of Justice, Legal
and Parliamentary Affairs has power under sec 87 of the Legal Practitioners Act to
make regulations denying a right of audience to legal practitioners who refuse to ac-
cept their share of such work (to date, no such regulations have been made).
Needless to say it is improper for a legal practitioner to charge a legal aid client an
additional fee over and above what the practitioner obtains from the State.123
No charge may be made for pro amico work, and contingent fees are not permitted.
Allowing one’s professional independence to be compromised
This is something that must be borne in mind by corporate lawyers. In Law Society of
Zimbabwe v Lake 1988 (1) ZLR 168 (S), a corporate lawyer sought permission to un-
dertake conveyancing work on behalf of his employer. Conveyancing is work re-
served for conveyancers (then legal practitioners). The court held that he could not do

122
In the USA and England, on the other hand, the term is used more generally to cover authority given
to an attorney or solicitor.
123
Mackay v Legal Aid Board 2003 (1) SA 271 (SE).

48
so. The performance of any ―reserved work‖ (i.e. appearance in court and the prepar-
atory work that precedes such appearance; notarising documents; and conveyancing)
must be done by independent practitioners, not by employees on behalf of their em-
ployers.
―I think it is 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 be-
half 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.‖ (p. 180D)
This does not apply to legal practitioners in the employment of the State (p. 177E-F).
Contravening any provision of the Act: trust accounts
The most common such contravention is in relation to trust accounts.
―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 prin-
ciple 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.‖
Per McNally JA in Mitchell v Estate Agents Council 1996 (1) ZLR 222 (S). See also
Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (S)
Under Part IV of Cap. 27:07, a legal practitioner who holds or receives money for an-
other person must open a trust account with a bank and may open another interest-
bearing trust account with a bank or building society.124 Before commencing practice
on his own, a practitioner must satisfy the Secretary of the Law Society that an auditor
has explained to him or her how to operate a proper accounting system in respect of
his or her trust accounts.125 Immediately after opening a trust account, a legal practi-
tioner must notify his auditor and the Council of the Law Society. 126 Any interest ac-
cruing from the interest-bearing account must be paid to the Law Society Compensa-
tion Fund, less a percentage which the practitioner can keep. The interest-bearing
trust account must permit funds to be withdrawn at seven days‘ notice or less.127
It is essential that a legal practitioner‘s own funds are kept separate from his trust ac-
counts, and two separate bank accounts must be kept: the business bank account and
the trust bank account.
A legal practitioner must deposit trust funds into his trust bank account promptly, ei-
ther on the same day he receives them or on the next reasonably possible banking
day.128
A legal practitioner has a duty to keep intact the trust funds which he holds, except to
the extent necessary to make a payment for which part of the funds was destined. He
must account to his clients in writing for all money deposited and withdrawn from the
accounts, and must do so without delay.129 Cheques drawn on a trust account must be
made out to specific payees.130 Withholding payment of trust money without lawful

124
Section 13(1) & (2) of the Act.
125
By-law 71C of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
126
By-law 70D of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
127
Sec 5(1) of the Legal Practitioners (General) Regs, 1999 (SI 137/1999).
128
By-law 70F of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
129
By-law 70E of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
130
By-law 70H of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).

49
cause is an act of misconduct,131 and if the practitioner‘s conduct amounts to theft the
normal penalty is cancellation of his registration, since by his conduct he has under-
mined the very core of the relationship between practitioner and client. 132 Even fail-
ure to keep trust account records properly is a very serious offence since the keeping
of books underpins the Legislature‘s endeavours to protect the public and failure to do
so undermines the public‘s confidence in the profession, though in the absence of
proof of theft it may not result in striking off.133
A legal practitioner must keep ―proper books of account‖134 showing trust moneys
received and paid into his trust accounts, and interest on any interest-bearing trust ac-
count.135 The accounts must be written up at least once a month and balanced every
three months, and every month a practitioner must record the balance standing to the
credit of each client in his accounts.136 The records of these balances must be pre-
served for at least three years,137 to ensure that the Law Society Council can, if neces-
sary, trace payments that have been made into and out of the practitioner‘s trust ac-
counts.
A legal practitioner who maintains trust accounts must provide the secretary of the
Law Society with an annual audit certificate; he must do so in order to obtain the re-
newal of his practising certificate.138 This requirement allows the Society to monitor
trust accounts at least once a year.
The Law Society has a right to inspect a legal practitioner‘s trust account books and
may carry out spot checks from time to time. It may also send in auditors, and if an
auditor finds evidence of contraventions of the Act or regulations or by-laws, the cost
of the audit may be recovered from the practitioner concerned.139 The Council may
also require a bank to provide a certified balance of money standing to the credit of a
practitioner‘s trust account.140 And for good cause the Society may apply to the Dis-
ciplinary Tribunal for an order prohibiting a legal practitioner from operating his trust
accounts and appointing a curator bonis to manage them.141
The funds in a trust account do not form part of the legal practitioner‘s estate on his
death or insolvency, and are not subject to attachment at the instance of his credi-

131
Sec 23(1)(d) of the Legal Practitioners Act [Chapter 27:07].
132
Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (S). See also Holmes v Law Society, Cape,
& Anor 2006 (2) SA 139 (C) at 152G and Summerley v Law Society of Northern Provinces 2006 (5)
SA 613 (SCA).
133
Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S). See also Holmes v Law Society,
Cape, & Anor 2006 (2) SA 139 (C).
134
By-law 70J of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82) provides that a practition-
er‘s accounting system must be ―adequate‖.
135
Sec 14(1) of the Legal Practitioners Act [Chapter 27:07].
136
By-laws 70B and 70C of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
137
By-law 70B(2) of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
138
Sec 81 of the Legal Practitioners Act [Chapter 27:07] and by-law 71C of the Law Society of Zim-
babwe By-laws, 1982 (SI 314/82).
139
Sec 14(2) & (4) of the Legal Practitioners Act [Chapter 27:07].
140
Sec 21 of the Legal Practitioners Act [Chapter 27:07].
141
Sec 25A of the Legal Practitioners Act [Chapter 27:07].

50
tors.142 They are also protected from set-off against liabilities which the practitioner
owes to the bank at which the account is held.143
In the event of a legal practitioner‘s death, insolvency or insanity the Council can ask
the Master of the High Court to appoint a curator bonis to manage the practitioner‘s
trust accounts.144

5. ADMINISTERING OATHS
Legal practitioners are ex officio commissioners of oaths and, as such, entitled to ad-
minister oaths.
Under sec 8 of the Justices of the Peace and Commissioners of Oaths Act [Chapter
7:09], commissioners of oaths may not administer oaths in any case in which regula-
tions prohibit them from doing so or if the commissioner has reason to believe that the
person concerned is unwilling to take an oath.
Under sec 2(1) of the Justices of the Peace and Commissioners of Oaths (General)
Regulations, 1998 (SI 183 of 1998):
―No justice of the peace of commissioner of oaths shall attest any affidavit relating to a
matter in which he has any interest.‖
One effect of this rule is that a legal practitioner may not attest an affidavit for use in
proceedings in which he is involved.145
Exceptions are affidavits required for record in a Deeds Registry, or for record in
State offices or the offices of a local authority.
A commissioner of oaths may not charge a fee for administering an oath146
A commissioner should not authenticate a signature where he has not seen the signa-
tory sign147, and he should not sign or procure the signature of blank documents, e.g.
powers of attorney.
Witnesses‘ statements in civil cases should not be taken in affidavit form.148

6. CESSATION OR ABANDONMENT OF PRACTICE

Introduction
When a legal practitioner ceases to practise, for whatever reason, arrangements need
to be made for the transfer of the business, disposal of the files and for completing of
accounting procedures.
If the practitioner is a member of a large firm, his files will normally be taken over by
his partners and there will be no problem with the disposal of his files.
But if it is a one-man practice, or if all the partners are ceasing to practise, then there
are three options:

142
Sec 15 of the Legal Practitioners Act [Chapter 27:07].
143
Sec 19 of the Legal Practitioners Act [Chapter 27:07].
144
Sec 16(2) of the Legal Practitioners Act [Chapter 27:07].
145
Manyika v Manyika 1983 (2) ZLR 198 (H) at 199-201; ZAPU v Siwela HB-14-2002; Macheka v
Moyo HB-78-2003.
146
Section 10(2) of the Justices of the Peace and Commissioners of Oaths Act.
147
S v Hurle & Ors (2) 1998 (2) ZLR 42 (H) at 50.
148
Mapuranga v Mungate 1997 (1) ZLR 64 (H)

51
  the practice can be sold to another legal practitioner;
 the practice can be wound up over a period of time, that is to say the practi-
tioner can decide to finalise every case until there are none remaining;
 the files in the practice can be distributed to new legal practitioners nominated
by the clients  which will necessitate writing to the clients informing them
of the winding-up of the practice and asking them to nominate new lawyers.
In all these cases, the practitioner must inform his current clients that he is ceasing to
practise, and must inform them in sufficient time to enable them to transfer their busi-
ness to another practitioner if they choose to do so.
The Law Society must also be informed within 21 days of the practitioner ceasing to
practise (see by-law 58 of the Law Society By-laws, 1982 (SI 314/1982))
Disposal of files
Except in the first case (sale of the practice), it is likely that some files will remain
comprising the following:
 Current files where new legal practitioners have not been nominated;
 Completed files.
The practitioner should come to an arrangement with another practitioner to take the
current files and any wills or similar documents for safe storage, pending instructions
being received from clients.
The retiring practitioner should carry out a selective destruction exercise on the re-
maining files. But the following points should be borne in mind:
1. The client‘s informed consent should be obtained before files and papers may
be safely destroyed. The client‘s documents may be returned, by agreement.
However it may be prudent to retain copies.
2. Documents that may be relevant to a claim should prima facie be kept for at
least the period of prescription if the claim has not previously been disposed
of.
3. Documents containing client‘s tax or VAT affairs must be retained for at least
the relevant statutory prescribed period.
4. There is no specific date beyond which the obligation to hold a client‘s own
documents can be said to expire. Deeds or other documents constituting or ev-
idencing rights should be preserved indefinitely but it is virtually impossible to
predict when they might turn out to be of value. There is therefore a risk at-
tached to destroying them.
5. Destruction of the client‘s property without consent could expose the practi-
tioner to liability and damages.
6. Practitioners must take steps to ensure that sensitive or privileged documents
and files are not disposed of in any way which might compromise them.
The files remaining after the destruction exercise should also be transferred to another
legal practitioner for storage.
Trust funds
If a legal practitioner transfers his practice to another practitioner, or if a client in-
structs him to send his files to another practitioner, then he should ensure that any

52
funds being held in trust for his client are transferred to the other practitioner‘s trust
account or are paid over to the clients concerned.
Under by-law 70E of the Law Society By-laws, 1982, within a reasonable time after
the termination of his/her mandate, a legal practitioner must provide the client with a
written statement showing details of the amount owing to the client, and must pay the
amount over within a reasonable time. Cessation of practice involves termination of
the practitioner‘s mandate.

7. DISCIPLINARY PROCEEDINGS
Responsibility of Law Society
The Law Society of Zimbabwe is primarily responsible for maintaining the standards
of the legal profession, and for instituting disciplinary proceedings against errant
members of the profession. Among its objects are:
―to define and enforce correct and uniform practice and discipline among legal practi-
tioners.‖149
To enable the Society to carry out its responsibilities in this regard, the Council of the
Society has established a three-member committee called the Disciplinary Committee
whose functions are to carry out investigations into allegations of unprofessional con-
duct, i.e. unprofessional, dishonourable or unworthy conduct described in secs 23(1)
and 28 of the Act, whether committed by legal practitioners or legal assistants (i.e.
persons who are undergoing practical training prior to being registered as practition-
ers).150
Initial investigation of allegations of unprofessional conduct
People (usually dissatisfied clients) who are aggrieved about the conduct of a legal
practitioner or legal assistant and want something done about it lodge a complaint
with the Secretary of the Society, who may call on the legal practitioner or assistant
concerned to answer the complaint, in writing, within 14 days. If the Secretary thinks
there is no substance in the complaint, he must tell the complainant that and can let
the matter drop unless the complainant insists that further action must be taken. If the
Secretary thinks there is substance in the complaint, or if the complainant insists on
further action, the Secretary must refer the complaint and all the papers relating to it
to the Disciplinary Committee.151
If, without a formal complaint, the Secretary learns of possible misconduct on the part
of a legal practitioner or assistant, he may write to the practitioner or assistant con-
cerned and call on him or her to reply to the allegation within 14 days.152
A practitioner or assistant who unreasonably fails or refuses to reply when called upon
to do so by the Secretary is automatically guilty of unprofessional conduct.153
One way in which the Secretary may come to learn of unprofessional conduct is
through the courts. If a court considers that in any legal proceedings there has been
unprofessional conduct, the court must forward a copy of the record of the proceed-

149
Sec 53(c) of the Legal Practitioners Act [Chapter 27:07].
150
See by-law 60 of the Law Society of Zimbabwe By-laws, 1982.
151
By-law 61 of the Law Society of Zimbabwe By-laws, 1982.
152
By-law 61 of the Law Society of Zimbabwe By-laws, 1982.
153
By-law 65 of the Law Society of Zimbabwe By-laws, 1982.

53
ings to the Council of the Society. In addition, the Council can obtain a copy of any
such record free of charge from the court.154
Note that allegations of unprofessional conduct need not relate only to a practitioner‘s
conduct after his or her registration as a practitioner: pre-registration conduct may be
the subject of a disciplinary inquiry.155
On receipt of papers relating to a complaint, the Disciplinary Committee must conduct
whatever investigation it thinks fit and must then decide whether or not the evidence
discloses a prima facie case of unprofessional conduct. In the course of the investiga-
tion the Committee can call on the complainant and the legal practitioner or assistant
concerned to provide affidavits or to produce books and records. Once again, unrea-
sonable failure on the part of a practitioner to reply to the Committee amounts to un-
professional conduct.156
After conducting an investigation the Disciplinary Committee must consider the evi-
dence and decide whether or not it thinks there is a prima facie case of unprofessional
conduct on the part of the legal practitioner or assistant concerned. It must then refer
the case to the Council with its findings and recommendations for further action.157
Action by Council of Society
The options open to the Council of the Law Society on receipt of the Disciplinary
Committee‘s findings and recommendations are as follows:
 If the Council considers that further investigation is necessary, it must refer the
matter back to the Disciplinary Committee for that investigation to be carried
out.158
 If it considers that the conduct complained of does not amount to unprofessional
conduct, or if it considers for any other reason that the allegation should not be
the subject of inquiry by the Disciplinary Tribunal, the Council may take whatev-
er action it considers appropriate, including admonishing the legal practitioner or
assistant concerned and ordering him or her to pay a fine of up to $2 000 —
though before it does so it must allow him or her to make written representa-
tions.159 If the Council decides to take no further action in the matter, it must in-
form the complainant and the legal practitioner or assistant concerned according-
ly.160
 If the allegation is or is likely to be the subject of criminal proceedings, the
Council may defer action until the proceedings have been completed.161
 In any other case the Council must refer the matter to the Disciplinary Tribunal
for an inquiry.162

154
Sec 25 of the Legal Practitioners Act [Chapter 27:07].
155
Sec 28(1)(a) of the Legal Practitioners Act [Chapter 27:07].
156
By-law 65 of the Law Society of Zimbabwe By-laws, 1982.
157
By-law 62 of the Law Society of Zimbabwe By-laws, 1982.
158
By-law 63 of the Law Society of Zimbabwe By-laws, 1982.
159
Section 26(2), proviso (i) of the Legal Practitioners Act [Chapter 27:07].
160
By-law 63 of the Law Society of Zimbabwe By-laws, 1982.
161
Section 26(2), proviso (ii) of the Legal Practitioners Act [Chapter 27:07].
162
Section 26(2) of the Legal Practitioners Act [Chapter 27:07].

54
The Council may refer a case to the Disciplinary Tribunal without prior investigation
by the Disciplinary Committee:
 if the legal practitioner or assistant concerned has been convicted of an offence
which the Council considers amounts to unprofessional conduct; or
 the Council considers that delay would prejudice the public or the administration
of justice or the reputation of the profession.
A reference163 to the Disciplinary Tribunal must be in writing, signed on behalf of the
Society, and must set out the allegations of unprofessional conduct against the legal
practitioner or assistant concerned.164 It must contain a summary of the evidence suf-
ficient to inform the practitioner or assistant of the material facts on which the Society
relies, and where appropriate must contain a list of possible witnesses and a brief
summary of the evidence that each witness will give. It must be filed with the Regis-
trar of the High Court.165
In Pitluk v Law Society of Rhodesia 1974 (2) RLR 245 (A), the Law Society was rec-
ommended to indicate the penalty it considered should be imposed on the legal practi-
tioner against whom it was bringing disciplinary proceedings, since the Society‘s
views would be of value to the court (now the Tribunal).166
Although the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981, permit
persons other than the Law Society to apply to the Tribunal for the exercise of its dis-
ciplinary powers, the Act seems to envisage that only the Society may refer matters to
the Tribunal and in practice only the Society does so.
Disciplinary Tribunal
The Disciplinary Tribunal is established by sec 24 of the Legal Practitioners Act and
consists of a chairperson and two other members. The chairperson is a judge or re-
tired judge, and he or she selects the other two members from a panel of names put
forward by the Council of the Law Society.
Inquiries by Disciplinary Tribunal
When a matter has been referred to it by the Society, the Disciplinary Tribunal may
refuse to hold an inquiry, in which case it must get the Registrar of the High Court to
inform the Society of its decision, or it may decide to hold an inquiry, in which case it
must get the Registrar to serve the reference (or application) on the respondent (i.e.
the legal practitioner or legal assistant concerned) and ask him or her to file a counter-
statement within 21 days.167

163
In the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981, references are called ―applica-
tions‖, i.e. applications to the Tribunal for it to hold an inquiry into misconduct allegations.
164
The allegations or charges must be framed specifically: Law Society of Rhodesia v Ford 1976 (2)
RLR 138 (A) at 148D. But they do not have to be framed with the technical particularity of a criminal
indictment: Randell & Bax S.A. Attorneys Handbook 3rd ed p 114.
165
Sec 3 of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
166
It should be noted, however, that this recommendation was made at a time when the Society institut-
ed disciplinary proceedings by application to the High Court, and had to attach a draft order to the ap-
plication. That is not the case now.
167
Sec 4 of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.

55
There is no appeal against the Tribunal‘s decision not to hold an inquiry into a practi-
tioner‘s conduct.168
In his counter-statement the respondent sets out his replies to the allegations against
him and may provide a list of people whom he suggests should be called to give evi-
dence at the inquiry. The Registrar forwards a copy of the counter-statement to the
Society, and the Society is entitled to file a reply to it.169
If after all this the Tribunal decides to hold an inquiry, it must get the Registrar to no-
tify the Society and the respondent of its decision and to give the Society and the re-
spondent at least 14 days‘ notice of the date and time fixed for the inquiry.170
Both the Society and the respondent have the right to appear before the Tribunal ei-
ther in person or represented by a legal practitioner.171 Even if the respondent does
not appear, the Tribunal must proceed with the inquiry.172
The Tribunal is not bound by the Society‘s views but must give them proper weight
since the Society is no ordinary litigant but seeks to safeguard the status and dignity of
the profession while protecting the interests of the public.173
The Tribunal‘s proceedings are held in public unless all the parties agree the contra-
ry.174
For the purposes of an inquiry the Disciplinary Tribunal has the same power as a court
to summon witnesses, take evidence on oath, and examine books and documents.175 It
may accept evidence by way of affidavit.176
Decisions of the Disciplinary Tribunal are taken by way of a majority vote, so the
chairman can be overruled by the two other members.177
Standard of proof of misconduct
The burden of proof at disciplinary proceedings before the Disciplinary Tribunal var-
ies with the gravity of the offence charged. Where the offence has strong criminal
connotations, such as misappropriation of trust money, the burden is on the Law Soci-
ety 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.178 The fact that the legal practitioner concerned has already been con-

168
Law Society of Zimbabwe v Paterson 1995 (1) ZLR 372 (S).
169
Secs 5 and 6 of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
170
Secs 7 and 8 of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
171
Sec 10 of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
172
Sec 11(6) of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
173
Law Society, Cape v Berrangé 2005 (5) SA 160 (C).
174
Sec 11(3) of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
175
Sec 27 of the Legal Practitioners Act [Chapter 27:07].
176
Sec 11(5) of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
177
Sec 11(2) of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
178
Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S); see also Pitluk v Law Society of
Rhodesia 1974 (2) RLR 245 (A), where it was said that in every allegation of professional misconduct
involving an element of deceit or moral turpitude, a high standard of proof is called for and not simply
proof on a balance of probabilities.

56
victed of a criminal offence would be regarded in the Tribunal as prima facie proof
that he has in fact committed the offence.179
In South Africa, the position is different: in all civil cases, including disciplinary pro-
ceedings, proof on a balance of probabilities is the acceptable measure of proof.180
Powers of Disciplinary Tribunal following inquiry
If the Disciplinary Tribunal considers that a legal practitioner or legal assistant has
been guilty of unprofessional conduct, it may:
 direct that his name should be deleted from the appropriate Register;
 suspend him;
 impose conditions on his practice;
 order him to pay a penalty of up to a fine of level 6 (currently $20 000), payable
to the Law Society Compensation Fund;
 censure him; or
 caution him.181
In the case of a legal assistant, the Tribunal may in addition prohibit his registration as
a practitioner, either indefinitely or for a specified period.182
Cases where inquiry need not be held
The Council of the Law Society and the Disciplinary Tribunal may exercise their dis-
ciplinary powers without holding an inquiry, where the legal practitioner concerned
has been convicted, either in or outside Zimbabwe, of a criminal offence which the
Council or the Tribunal considers amounts to unprofessional conduct. Before exercis-
ing any such power, however, the Council or the Tribunal must give the practitioner
an opportunity to tender a written explanation of his conduct.183
Publication of decisions of Disciplinary Tribunal
The Disciplinary Tribunal must notify the Society and the Registrar of the High Court
of its decisions and, if the chairperson of the Tribunal so directs, the Registrar must
cause them to be published.184 In any event, the Registrar must publish all decisions
which involve the deletion of a practitioner‘s name from the Register or a practition-
er‘s suspension from practice.185
Judgments of the Tribunal are open to inspection by members of the public.186

179
Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S)
180
Law Society, Cape v Koch 1985 (4) SA 379 (C).
181
Sec 28(1) of the Legal Practitioners Act [Chapter 27:07].
182
Sec 28(2) of the Legal Practitioners Act [Chapter 27:07].
183
Sec 28(3) of the Legal Practitioners Act [Chapter 27:07].
184
Sec 28(7) of the Legal Practitioners Act [Chapter 27:07] and sec 12 of the Legal Practitioners (Dis-
ciplinary Tribunal) Regulations, 1981.
185
Sec 31(2) of the Legal Practitioners Act [Chapter 27:07].
186
Sec 11(3a) of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.

57
Appeals from decisions of Disciplinary Tribunal
Anyone aggrieved by an order of the Disciplinary Tribunal (i.e. the Society or the le-
gal practitioner or assistant concerned) may appeal against the order to the Supreme
Court, which has wide powers to confirm, vary or set aside the Tribunal‘s decision or
to give any other order in the matter that it thinks just.187
The noting of an appeal does not suspend the Tribunal‘s decision,188 so a practitioner
whom the Tribunal has ordered to be suspended or whose name the Tribunal has or-
dered to be deleted from the Register is not allowed to continue practising pending the
outcome of his or her appeal.
Restoration to Register
A legal practitioner whose name has been deleted from the Register may apply to the
High Court to have his or her name restored to the Register. Such an application must
make full disclosure of the reasons for which the applicant‘s name was struck off,189
and be accompanied by a supporting recommendation from the Council of the Law
Society.190
Before granting an application for restoration to the Register, the Court must be satis-
fied that the applicant has genuinely reformed, that a considerable time has elapsed
since his name was deleted and that the probability is that, if reinstated, he will con-
duct himself honourably in the future.
As was stated in the South African case of Swartzberg v Law Society, Northern Prov-
inces 2008 (5) SA 322 (SCA) at 331F–H:
―The question that … confronts a court is not whether the [applicant for re-admission] has
been sufficiently punished for his misdeeds. … The issue is rather whether the [appli-
cant] is a person who can safely be trusted to faithfully discharge all of the duties and ob-
ligations relating to the profession … After all, because of the trust and confidence re-
posed by the public and the courts in practitioners, a court must be astute to ensure that
the re-admission of a particular individual will not harm the prestige and dignity of the
profession. For, by granting an application for re-admission, a court pronounces to the
world at large that the individual concerned is a fit and proper person.‖
The time between the deletion of the applicant‘s name and the application for restora-
tion must be sufficiently long to enable the Court to judge whether there has been
reformation on the applicant‘s part. The applicant can best satisfy the court as to his
reformation by informing the court of his history since his name was deleted from the
Register. It will not be easy for an applicant to prove that he has reformed where he
was struck off for serious dishonesty and deception, and in such a case his chances of
readmission to the profession will be slim.191

187
Sec 29 of the Legal Practitioners Act [Chapter 27:07].
188
Sec 29(3) of the Legal Practitioners Act [Chapter 27:07].
189
Randell & Bax S.A. Attorneys Handbook 3rd ed p 131.
190
Sec 32 of the Legal Practitioners Act [Chapter 27:07]. The Council‘s opinion is important; in Ex
parte Somers 1948 (1) SA 837 (T) it was said that the Law Society should appear in an application in
which a practitioner seeks restoration to the register, even if the Society does not oppose the applica-
tion, so that the Society can give it views to the court or provide the court with information.
191
Swartzberg v Law Society, Northern Provinces 2008 (5) SA 322 (SCA).

58
Where appropriate, the Court needs to be satisfied that the applicant has made full res-
titution to anyone who suffered loss from his conduct.192

8. JUDGES, MAGISTRATES AND PROSECUTORS

Judicial officers
There is no written code of conduct applicable to judges and magistrates, though mag-
istrates are covered by the Public Service regulations which regulate the conduct of
public servants generally. The absence of a code of conduct dealing specifically with
judicial officers is most regrettable. Judges and magistrates have been faced with se-
rious ethical dilemmas in recent years, in particular:
 how to interpret and apply the law so as to reconcile the maintenance of human
rights and freedoms with the demands of an increasingly authoritarian State;
 how to maintain their independence from commercial pressures in the face of
monetary inflation which renders their judicial salaries increasingly worthless;
 whether they could benefit from the land redistribution exercise, while at the same
time adjudicating fairly in disputes involving those from whom the land was tak-
en.
A clear and comprehensive code of conduct would have helped to guide judicial of-
ficers through the moral minefields they faced and might have gone some way to
maintaining the integrity and reputation of the Bench.
What follows cannot take the place of such a code but may give guidance in a few of
the problems facing judicial officers.
General attributes
The general attributes of a good judicial officer were set out by the former Chief Jus-
tice, Mr Justice Gubbay, in an address to the Magistrates‘ Forum:193
 Honesty and rectitude are the very minimal requirements of judicial officers. Less
than that no disciplined judiciary should accept and no disciplined society should
tolerate.
 Judicial officers must be dignified and not too talkative.
 Judicial officers must possess patience in abundance, particularly for newly-
qualified lawyers, and allow the parties and their representatives to make their
points.
 A kind and understanding heart is perhaps the most valuable attribute a judicial
officer should possess, though mercy should be combined with firmness.194
 Common sense is the common denominator of all good judicial officers.

192
See generally Randell & Bax S.A. Attorneys Handbook 3rd ed pp 131–8.
193
The address was published in Legal Forum (1988) vol 1 no. 1 pp. 3-10.
194
Mercy is a debatable virtue. If mercy requires a tempering of justice, then there is a sense in which
it requires a departure from justice. Thus to be merciful is, perhaps, to be unjust — which is a vice, not
a virtue. In that sense, therefore, mercy is not a virtue but a vice, a product of morally dangerous sen-
timentality. See ―Displaying Compassion‖ by Prof J. Murphy, in The Responsible Judge ed J.I.
Noonan and K.I. Wilson (1993, Praeger, USA).

59
 Judicial officers must have the courage and strength of character scrupulously to
resist extraneous influences and to decide cases strictly according to the evidence
and the law.
 Judicial officers must be industrious and diligent. A lazy judge or magistrate is a
poor servant of the law, and a clever but lazy judicial officer is an encumbrance
which may seriously erode public confidence in the judicial process.
 Judicial officers must be prompt, businesslike and punctual in the performance of
their duties, recognising that time is important for all parties and that justice de-
layed is justice denied.
 Judicial officers should recognise that every case is important to at least one of the
parties, and must give the same conscientious attention to every case that comes
before them.
To this list Mr Justice McNally added a few more in another address to the same fo-
rum:195
 Wit and humour should be employed carefully; a judicial officer should not make
jokes at the expense of witnesses, parties or their representatives. After all, they
can‘t answer back.
 Judicial officers must be observant, and should watch the witnesses while they
give evidence. They should notice if an accused person is ill or if a witness is old
and frail and needs to sit down.
 Judicial officers must show respect for accused persons and ensure that other peo-
ple in court show proper respect for the accused.
 Judicial officers must control their courts, and in particular must ensure that wit-
nesses are not harried by legal practitioners.
 Judicial officers should not adjourn cases for frivolous personal reasons, nor post-
pone hearings repeatedly, nor should they delay the handing down of judgments.
Judicial officers must be paragons indeed!
Duty to hear cases
Judicial officers are bound by their judicial oath to hear the cases that come before
them, subject to their duty to recuse themselves which will be dealt with in the next
section.196 Their duty to sit has been held to be equally as strong as their duty not to
sit when disqualified.197
Duty of recusal
Where a judicial officer has such an interest, whether financial, personal or other, in
the outcome of a case, or has conducted himself in such a way, that he could be re-
garded as having become a party to the proceedings, he must recuse himself; he is

195
The address was published in The Forum (1989) vol 1 no. 5 pp. 3-6.
196
See President of RSA v SA Rugby Football Union 1999 (4) SA 147 (CC). The Code of Conduct for
United States Judges provides in Canon 3A(2): ―A judge should hear and decide matters assigned,
unless disqualified …‖
197
President of RSA v SA Rugby Football Union 1999 (4) SA 147 (CC) at 176D-E, cited with approval
in ANZ (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H).

60
automatically barred by operation of law from hearing the case.198 The general ap-
proach to an application for recusal was laid down by the South African Constitution-
al Court as follows:
―The question is whether a reasonable, objective and informed person would on the correct
facts reasonably apprehend that the Judge has not or will not bring an impartial mind to
bear on the adjudication of the case, that is a mind open to persuasion by the evidence
and the submissions of counsel. The reasonableness of the apprehension must be as-
sessed n the light of the oath of office taken by the Judges to administer justice without
fear or favour; and their ability to carry out that oath by reason of their training and ex-
perience. It must be assumed that they can disabuse their minds of any irrelevant person-
al beliefs or predispositions. They must take into account the fact that they have a duty to
sit in any case in which they are not obliged to recuse themselves. At the same time, it
must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair
trial and a judicial officer should not hesitate to recuse herself or himself if there are rea-
sonable grounds on the part of a litigant for apprehending that the judicial officer, for
whatever reasons, was not or will not be impartial.‖199
Judicial officers must not unduly take an application for recusal as a personal affront;
if it is a proper application any personal offence should be concealed, tempered by the
realisation that at the root against the rule against bias lies the very concept of judicial
independence.200
Criminal offences
The rules applicable to criminal offences committed by legal practitioners apply also
to judicial officers, but much more stringently. Whereas disciplinary action will be
taken against a legal practitioner who has been convicted of a crime only if the crime
is such as to cast doubt on the practitioner‘s character or integrity, in the case of a ju-
dicial officer a conviction for almost any crime, other than a venial one, would afford
a ground for removing him or her from office. It is the duty of judicial officers to up-
hold the law in general and, in particular, to punish persons who have committed
crimes. How could a judge or magistrate, without being labelled a hypocrite, preside
over a trial and sentence a person for committing a crime of which the judge or magis-
trate has been found guilty?
Extra-judicial activities
As a corollary to the rule that judicial officers must hear the cases that come before
them, they must regulate their extra-judicial duties so as to minimise the instances in
which they will have to recuse themselves. Apart from that, of course, they must en-
sure that their extra-judicial activities do not compromise the independence, impartial-
ity and reputation of the judiciary.
No clear rules have been formulated for Zimbabwean judicial officers to follow when
trying to decide whether or not a particular activity is permitted or not, and the rules
that have been adopted in other countries are not always applicable because in each
country has different social and economic circumstances. For example, the stringent
rules that prevent British judges from engaging in most forms of commercial activity
would be unrealistic in Zimbabwe, where judicial officers find it increasingly difficult

198
See ANZ (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H) for a thorough
analysis of the law on the topic.
199
President of RSA v SA Rugby Football Union 1999 (4) SA 147 (CC) at 177B-E.
200
ANZ (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR 226 (H) at 232D.

61
to maintain even a modest standard of living on their official salaries; and a rule that
prevents judges from hearing cases presented by lawyers who live with the judges is
more applicable to India, where several generations of families often live in the same
house, than it would be in Zimbabwe.
Nevertheless, the ethical rules formulated for judicial officers in other countries can
be a guide to the practice that should be followed in Zimbabwe, and here are some of
the more pertinent ones:201
Generally
Judicial officers must not engage in any extra-judicial activity that detracts from the
dignity of their office or interferes with the performance of their judicial duties. There
can be little dispute about that rule, though its application in particular cases may
cause difficulty. A judicial officer cannot set up business as a street vendor to sell
vegetables grown on his farm, for example, but may he sell vegetables from the boot
of his car to colleagues and members of the legal profession? Probably not.
Lecturing and writing
Judicial officers may lecture and write on legal topics; indeed, because of their posi-
tion in the legal profession they are singularly well qualified to do so. But they must
ensure that through their lectures or writing they do not cast doubt on their capacity to
decide impartially issues that are likely to come before them.
Judicial officers may also lecture and write on non-legal topics, so long as they do not
impair the dignity of their office or interfere with the performance of their judicial du-
ties.
Membership of organisations devoted to legal development
Judicial officers may become members and officers of organisations devoted to the
improvement of the law and the legal system generally, but should not actively partic-
ipate in fund-raising activities for such organisations.
Membership of law firms
Needless to say, judicial officers should not become, or remain, partners or employees
of firms of legal practitioners, nor should they act as advisers or consultants to such
firms. If they are members, employees or advisers of any such firm when they are
appointed to judicial office, they must take immediate steps to sever all connection
with the firm.
Political activities
We have seen that legal practitioners are free to engage in lawful political activities,
and even unlawful ones in some cases, without incurring disciplinary sanctions. The
same is not true for judicial officers. They must eschew all activities that may give
rise to a reasonable suspicion that they favour one political party or organisation over
another.
There has been a tendency in this country to appoint Ministers and Deputy Ministers
of Justice to the High Court Bench. Some of them have made good judges, some

201
The statements that follow are based on the Code of Conduct for United States Judges, adopted by
the Judicial Conference in 1973 and revised in 1999 and 2000
(http://www.uscourts.gov/guide/vol2/ch1). See also the Lord Chancellor‘s Guidance on Outside Activ-
ities and Interests of Judges (2000).

62
have not. In general, the tendency is an unhealthy one since it leads to the perception
that judicial appointment is a proper reward for successful politicians.
Commercial activities
Judicial officers should restrict their extra-judicial commercial activities to a mini-
mum. If they become involved in business activities they will inevitably enter into
business relationships with other people, and if disputes arise from those relationships
it will be impossible for the judicial officers concerned, and difficult for their col-
leagues, to adjudicate fairly on the disputes. In other words, the more a judicial of-
ficer engages in commercial activities the more likely it is that conflicts of interest
will arise.202 And of course the more time a judicial officer devotes to his commercial
activities the less time he will have to perform his judicial duties.
Hence large-scale commercial farming activities are incompatible with judicial office.
Commercial farming on any reasonably large scale involves entering into business
relationships with a great number of different entities, and it is a full-time occupation.
Judicial officers should not become directors, managers or partners of commercial
enterprises other than enterprises closely controlled by members of the officers‘ fami-
lies. They should not enter into remunerated employment of any sort (apart from their
judicial office) because an employer-employee relationship, in which the employer
can direct what work is to be done and the way it is to be done, is incompatible with
the independence expected of a judicial officer.
So far as magistrates are concerned, their involvement in commercial activities is fur-
ther restricted by the Public Service regulations.
Interviewing witnesses
It should go without saying that a judicial officer must never interview a witness pri-
vately, in the absence of the parties to the legal proceedings concerned.203 Nor should
he, in open court, speak to a witness in a language that is not understood by all the
parties to the proceedings.204
Former judges
According to Canadian Bar Association‘s Code of Professional Conduct205:
―A judge who returns to practice after retiring or resigning from the bench should not
(without the approval of the governing body206) appear as a lawyer before the court of
which the former judge was a member or before courts of inferior jurisdiction thereto in
the province where the judge exercised judicial functions. If in a given case the former
judge should be in a preferred position by reason of having held judicial office, the ad-
ministration of justice would suffer; if the reverse were true, the client might suffer.
There may, however, be cases where a governing body would consider that no preference
or appearance of preference would result, for example, where the judge resigned for good
reason after only a very short time on the bench.‖

202
It was his commercial activities that gave rise to Judge Paradza‘s downfall: see S v Paradza HH-7-
2006.
203
S v Jenkins 1985 (2) ZLR 193 (S).
204
Ibid.
205
Para 4 of the Commentary to the rule stated in Chapter XIX.
206
Of the legal profession — in Zimbabwe‘s case, the Law Society.

63
This rule has applied in practice in Zimbabwe, though it has never been formally
adopted. None of the judges who have left the Bench in recent years has appeared in
court as a legal practitioner. And when the late Mr I. Maisels QC, who left the South-
ern Rhodesian Bench in 1963, represented an accused person in a criminal trial in the
late 1970s, judicial eyebrows were raised at his appearance in court, although he was
not prevented from appearing.
Prosecutors
General
Like other practitioners, prosecutors have a duty to be truthful, honest, candid and fair
in all their dealings. The duties of a prosecutor were set out by Gubbay CJ in Smyth v
Ushewokunze & Anor 1997 (2) ZLR 544 (S) at 549C-G as follows:
―A prosecutor must dedicate himself to the achievement of justice. See R v Banks [1916]
2 KB 621 at 623. 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. See R v Riekert 1954 (4) SA 254 (SWA) at 261C-E. 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. See R v Riekert supra at
261F-G; S v Jija & Ors 1991 (2) SA 52 (E) at 67J-68B. He must produce all relevant
evidence to the court and ensure, as best he can, the veracity of such evidence. See S v
Msane 1977 (4) SA 758 (N) at 759A; S v N 1988 (3) SA 450 (A) at 463E. He must state
the facts dispassionately. If he knows a point in favour of the accused, he must bring it
out. See S v Van Rensburg 1963 (2) SA 343 (N) at 343F-G; Phato v Attorney-General,
Eastern Cape & Anor 1994 (2) SACR 734 (E) at 757d. 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. See R v Filanius 1916 TPD 415 at 417; S v Nassar 1995 (1) SACR 212
(Nm) at 218a. If his own witness substantially departs from his proof207, 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 defend-
ing practitioner. See S v Hassim & Ors (2) 1971 (4) SA 492 (N) at 494B; S v Masinda
en ’n Ander 1981 (3) SA 1157 (A) at 1162F; S v Xaba 1983 (3) SA 717 (A) at 728H-
729A.‖

Duty towards unrepresented accused persons

Prosecutors, like the courts themselves, have a particular duty to be fair towards unde-
fended accused persons.
Duty to disclose discrepancies
A prosecutor has a duty to disclose material inconsistencies between what a State wit-
ness has said in court and what he told the police in his statement.208 If the accused is
legally represented, the disclosure should be made to the defence counsel by making
the statement available to him; if not, the court should be informed about the discrep-
ancy. Minor discrepancies need not be disclosed, and prosecutors should remember

207
A proof in this sense means a written statement a witness made to the police.
208
S v Mutsinziri 1997 (1) ZLR 6 (H) and the cases there cited.

64
that witnesses‘ statements are privileged. If in doubt as to whether a discrepancy is
material or minor, the prosecutor should disclose it.209
Another way to deal with discrepancies is by impeaching the witness‘s credibility.
This involves confronting the witness with his previous statement. The court must
first be informed of the discrepancy, then the witness must be asked if he made the
statement; he must be given sufficient particulars about when and where the state-
ment was made to allow him to identify it. If the witness denies making it, then the
police officer who recorded it should be called, plus any interpreter. If the statement
is proved, or the witness admits making it, the witness must be asked to explain the
discrepancy.210 If a witness is impeached, his evidence is wholly discredited. This is
the course to follow if the prosecutor does not want the witness‘s evidence to be used.
Duty to call witnesses
A prosecutor has a general discretion as to what witnesses will be called to support the
prosecution case, but in the exercise of that discretion he must not be actuated by any
oblique motive. He must not refuse to call witnesses (i.e. render them available for
trial) merely on the ground that their testimony conflicts with that of other witnesses.
He must have available the witnesses whom he has indicated to the defence he intends
to call.211
Duty to disclose witnesses’ statements
It used to be said that police dockets were privileged and that prosecutors were under
no obligation to disclose their contents, in particular witnesses‘ statements, to legal
practitioners appearing for accused persons.212 That rule no longer applies, in view of
the constitutional imperative to ensure a fair trial. In S v Sithole 1996 (2) ZLR 575
(S), it was held that:
 in High Court proceedings, an accused person ought ordinarily to be entitled to
copies of statements of witnesses whom the State proposes to call, if the accused
so requests;
 the State may decline a request to provide copies of witnesses‘ statements on
grounds of public policy, and it will be for the court to determine whether the
State has discharged the onus of establishing that disclosure will not be in the pub-
lic interest. In reaching that decision, it may be necessary for the court to have
sight of the statements;
 to obviate the need for postponements, an application for disclosure should be
made well in advance of the trial.
See also S v Sefadi 1995 (1) SA 433 (D) and S v Chibaya & Ors HH-4-2007.
Miscellaneous duties (from Reid Rowland, Prosecutors Handbook)
A prosecutor must not conceal evidence: if there is evidence in the docket favourable
to defence, he must disclose it.
A prosecutor must keep information regarding accused persons confidential. He must
not conceal it from the defence, of course, but otherwise he must treat the evidence

209
S v Mutsinziri supra
210
S v Mazhambe & Ors 1997 (2) ZLR 587 (H).
211
S v Beahan 1989 (2) ZLR 20 (S).
212
R v Steyn 1953 SR 76 and (on appeal) 1954 (1) SA 324 (A).

65
with the same degree of confidentiality as practitioners in private practice must treat
information concerning their clients.
A prosecutor must be punctual, and must advise the court and defence counsel if wit-
nesses are running late.
A prosecutor must not give gratuitous advice to accused persons, save on matters such
as the date and place of trial, who will be called as witnesses, etc. A prosecutor must
not recommend legal practitioners to accused as defence counsel; at most he or she
may provide accused persons with a list of practitioners practising in the town.

66
 APPENDIX 1: LEGAL PRACTITIONERS ACT

The Legal Practitioners Act [Chapter 27:07] has been amended by:
Acts 15/1981, 32/1981, 14/1982, 15/1983, 31/1983, 10/1986, 29/1989, 23/1991,
22/1992 (s. 15), 11/1996 (as modified by SI 135/1996), 18/1996, 14/1999, 10/2000,
22/2001, 6/2005, 9/2006.

ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title.
2. Interpretation.
PART II
REGISTER AND REGISTRATION
3. Register of Legal Practitioners.
4. Application for registration.
5. Registration.
6. Application for deletion from Register.
7. Exemption certificate.
PART III
PRIVILEGES, RESTRICTIONS AND OFFENCES IN CONNECTION WITH PRACTICE
8. Privileges of registered legal practitioners.
9. Offences by unqualified persons.
10. Prohibition against unqualified persons preparing certain instruments.
11. Prohibition against practice by or in association with unqualified persons.
12. Prohibition against practice without practising certificate.
12A. Pre-practice examinations and training.
PART IV
TRUST ACCOUNTS
13. Opening of trust accounts.
14. Books of account.
15. Trust account moneys excluded from insolvency or attachment.
16. Control of operation of trust account.
17. Orders as to costs.
18. Saving of liability of bank, etc., in relation to trust account.
19. Limitation of set-off, etc., against trust account.
20. Saving of set-off, etc., against trust account.
21. Council of the Society may require certified balance of trust account.
22. Offences in relation to trust accounts.
PART IVA
CONTINGENCY FEE ARRANGEMENTS
22A. Interpretation in Part IVA.
22B. Legal practitioners may enter into contingency fee arrangements.
22C. Form of contingency fee arrangement.
22D. Non-disclosure of contingency fee arrangement.
22E. Maximum fees payable under contingency fee arrangement.

67
22F. Review of contingency fee arrangement or fee payable.
PART V
DISCIPLINE
23. Unprofessional, dishonourable or unworthy conduct.
24. Disciplinary Tribunal.
25. Evidence of unprofessional, dishonourable or unworthy conduct from courts.
25A. Prohibition of operation of trust accounts and business accounts.
26. Council of the Society to refer cases to Disciplinary Tribunal.
26A. Suspension from practice.
27. Taking of evidence by Disciplinary Tribunal.
28. Powers of Disciplinary Tribunal.
29. Appeals from decisions of Disciplinary Tribunal.
30. Suspension of practitioner upon insolvency.
31. Registrar to make appropriate entry in Register and to publish order of Disciplinary
Tribunal.
32. Restoration to Register.
PART VI
COUNCIL FOR LEGAL EDUCATION
33. Interpretation in Part VI.
34. Council for Legal Education.
35. Functions and powers of Council for Legal Education.
36. Membership of Council for Legal Education.
37. Disqualifications for membership of Council for Legal Education
38. Terms and conditions of office of members of Council for Legal Education.
39. Vacation of office by members of Council for Legal Education.
40. Meetings and procedure of Council for Legal Education.
41. Committees of Council for Legal Education.
42. Minutes of proceedings of Council for Legal Education and committees.
43. Secretary and other staff of Council for Legal Education.
44. Funds of Council for Legal Education.
45. Accounts of Council for Legal Education.
46. Validity of decisions and acts of Council for Legal Education and committees.
47. Execution of instruments by Council for Legal Education.
48. Exemption from liability of Council for Legal Education and its members, employees
and agents.
49. Rules made by Council for Legal Education.
49A. Appeals against decisions of Council for Legal Education.
PART VII
LAW SOCIETY OF ZIMBABWE
50. Interpretation in Part VII.
51. Law Society of Zimbabwe.
52. Membership of Society.
53. Objects and powers of Society.
54. Constitution of Council of the Society.
55. Management and control of Society by Council of the Society.
56. Absence of councillor from Zimbabwe or failure to attend meetings of Council of the
Society.
57. Casual vacancies.
58. Casual vacancy not to invalidate acts of Council of the Society.
59. Representative of councillor to attend meetings of Council of the Society.
60. Annual general meetings.

68
 61. Special general meetings.
62. Quorum at general meetings.
63. Society may make by-laws.
PART VIII
LAW SOCIETY COMPENSATION FUND
64. Law Society Compensation Fund.
65. Assets of Compensation Fund.
66. Expenditure from Compensation Fund.
67. Audit of Compensation Fund.
68. Law Society Compensation Fund Trustees.
69. Functions and powers of Board of Trustees.
70. Compensation for loss through dishonesty of registered legal practitioner.
71. Subrogation of Board of Trustees.
72. Quorum of Council and Society in respect of business of Compensation Fund.
73. Rules.
PART IX
PRACTISING CERTIFICATES
74. Applications for practising certificates.
75. Issue, renewal and refusal of practising certificates.
76. Period of validity of practising certificates.
77. Terms and conditions of practising certificates.
78. Withdrawal of practising certificate.
79. Appeals from decisions of Council of the Society re practising certificates.
PART X
GENERAL
80. Existing practitioners to be registered as notaries public and conveyancers.
81. Audit certificates.
82. Right of State and certain parastatal employees to appear in court.
83. Non-recovery of fee.
84. Evidence.
85. Special provisions relating to legal practitioners employed by State.
86. Oaths of loyalty and of office.
87. Regulatory power.

AN ACT to consolidate and amend the laws relating to the legal profession and to make
new provision in regard thereto; and to provide for matters incidental to or connected with
the foregoing.
[Date of commencement: 22nd May, 1981]

PART I
PRELIMINARY
1 Short title
This Act may be cited as the Legal Practitioners Act [Chapter 27:07].
2 Interpretation
(1) In this Act—
―bank‖ means a bank which is registered as a commercial bank in terms of the Banking
Act [Chapter 24:01];
―Board of Trustees‖ means the Law Society Compensation Fund Trustees referred to in
section sixty-eight;

69
 ―building society‖ means a building society which is registered in terms of the Building
Societies Act [Chapter 24:02];
―by-laws‖ means by-laws made by the Society in terms of section sixty-three;
―Compensation Fund‖ means the Law Society Compensation Fund referred to in section
sixty-four;
―Council for Legal Education‖ means the Council for Legal Education established in
terms of section thirty-four;
―Council of the Society‖ means the Council of the Society constituted in terms of section
fifty-four;
―Disciplinary Tribunal‖ means the Disciplinary Tribunal established in terms of section
twenty-four;
―fixed date‖ means the 22nd May, 1981;
―limited practising certificate‖ means a practising certificate issued in terms of subsection
(4) of section seventy-five;
―Minister‖ means the Minister of Justice, Legal and Parliamentary Affairs or any other
Minister to whom the President may, from time to time, assign the administration of
this Act;
―practising certificate‖ means a practising certificate issued in terms of section seventy-
five, and includes a limited practising certificate;
―reciprocating country‖ means a country declared to be a reciprocating country in terms of
subsection (2);
―Register‖ means the Register of Legal Practitioners, Notaries Public and Conveyancers
referred to in section three;
―registered‖ means registered in the Register;
―Registrar‖ means the Registrar of the High Court;
―regulations‖ means regulations made by the Minister in terms of section eighty-seven;
―residential exemption certificate‖ means a residential exemption certificate issued in
terms of section seven;
―Society‖ means the Law Society of Zimbabwe referred to in section fifty-one.
(2) Where the Minister is satisfied that the law of any country other than Zimbabwe
permits the admission to the practice of law in that country, whether generally or in particular
cases or for particular purposes, of legal practitioners normally resident in Zimbabwe he may,
after consultation with the Chief Justice and the Council for Legal Education, declare such
country by statutory instrument to be a reciprocating country.
PART II
REGISTER AND REGISTRATION
3 Register of Legal Practitioners
(1) The Registrar shall keep a register of legal practitioners to be known as the Register
of Legal Practitioners, Notaries Public and Conveyancers.
(2) It shall be the duty of the Registrar to—
(a) enter in the Register—
(i) the name of every person which he has been directed to enter in the Register
by or in terms of this Act, whether as a legal practitioner, notary public or
conveyancer and the date of his registration as such;
(ii) such other particulars relating to registered persons as may be prescribed in
regulations;

70
 (b) make such alterations in the Register as may from time to time be necessary by rea-
son of any change in the name or other particulars of a registered person;
(c) delete from the Register the name of any registered person on the death of that per-
son or when required to do so by or in terms of this Act.
(3) The Registrar shall issue to every person whose name is entered in the Register a
separate certificate in the form prescribed in regulations specifying that the person concerned
is registered as a legal practitioner, notary public or conveyancer, as the case may be.
4 Application for registration
(1) Any person who wishes to be registered, whether as a legal practitioner, a notary
public or a conveyancer shall make application therefor to the High Court in the form and
manner prescribed in regulations.
(2) An application for registration as—
(a) a legal practitioner may be combined with an application for registration as a notary
public and additionally, or alternatively, as a conveyancer; and
(b) a notary public may be combined with an application for registration as a convey-
ancer, and vice versa.
5 Registration
(1) Upon application being made to it in terms of section four for registration as a legal
practitioner, the High Court may grant the application and direct the Registrar to register the
applicant as a legal practitioner, if the High Court is satisfied that the applicant—
(a) has complied with the formalities prescribed in regulations in relation to the applica-
tion; and
(b) possesses the qualifications prescribed in rules made by the Council for Legal Edu-
cation in terms of section forty-nine and has had such practical experience, if any, as
may be prescribed in such rules; and
(c) is normally resident in Zimbabwe or a reciprocating country or has been granted a
residential exemption certificate; and
(d) is of or above the age of twenty-one years; and
(e) is not an unrehabilitated insolvent or has not assigned his estate for the benefit of or
made a composition or other arrangement with his creditors, which composition or
arrangement has not been rescinded or set aside; and
(f) is a fit and proper person to be so registered;
and if the High Court is not so satisfied the High Court shall, subject to subsection (3), refuse
the application.
(2) Upon application being made to it in terms of section four for registration as a nota-
ry public and additionally, or alternatively, as a conveyancer, the High Court may grant the
application and direct the Registrar to register the applicant as a notary public and additional-
ly, or alternatively, as a conveyancer, if the High Court is satisfied that the applicant—
(a) has complied with the formalities prescribed in regulations in relation to the applica-
tion; and
(b) is registered as a legal practitioner or will be so registered at the same time as he is
registered as a notary public or a conveyancer; and
(c) possesses the qualifications prescribed in rules made by the Council for Legal Edu-
cation in terms of section forty-nine and has had such practical experience, if any, as
may be prescribed in such rules; and
(d) is a fit and proper person to be so registered;

71
and if the High Court is not so satisfied the High Court shall, subject to subsection (3), refuse
the application.
(3) Upon good cause shown, the High Court may condone non-compliance with any
technical formality in relation to an application in terms of section four.
6 Application for deletion from Register
(1) A registered legal practitioner may apply to the High Court for his name to be delet-
ed from the Register and the High Court may, if satisfied that the application has not been
made in order to avoid any disciplinary action being taken in terms of this Act, grant the ap-
plication and direct the Registrar to make the appropriate deletion from the Register.
(2) The Council of the Society may, where there is reason to believe that a registered
legal practitioner has ceased to be normally resident in Zimbabwe or a reciprocating country
and that such legal practitioner has not been granted a residential exemption certificate, apply
to the High Court for an order calling upon the registered legal practitioner concerned to show
cause why his name should not be deleted from the Register.
(3) Upon the return day of an order granted in terms of subsection (2), the High Court
may, if satisfied that the registered legal practitioner concerned has ceased to be normally res-
ident in Zimbabwe or a reciprocating country and has not been granted a residential exemp-
tion certificate, direct the Registrar to make the appropriate deletion from the Register.
7 Exemption certificate
(1) Where the Minister, after consultation with the Council for Legal Education, is sat-
isfied that, having regard to the importance, complexity or special circumstances of the mat-
ter, it is just and reasonable for a person to obtain the services of a legal practitioner who has
special or particular experience relating to such matter and that such legal practitioner is not
normally resident in Zimbabwe [or]213 but is from a reciprocating country, he may grant a cer-
tificate exempting the legal practitioner concerned from satisfying the requirement of subpar-
agraph (iii) of paragraph (a) of subsection (1) of section five of being normally resident in
Zimbabwe or a reciprocating country.214
[Subsection as amended by sec 32 of Act 6 of 2005]
(2) Where a residential exemption certificate has been granted—
(a) the legal practitioners concerned shall not engage in the practice of the profession of
law in Zimbabwe except in relation to the matter for which the residential exemp-
tion certificate was granted; and
(b) it shall automatically lapse within seven days of the completion of the matter for
which it was granted.
[Subsection substituted by sec 2 of Act No. 10 of 2000]]
(3) A copy of every residential exemption certificate shall be submitted to the Council
of the Society.
(4) Where a registered legal practitioner fails to make an application pursuant to para-
graph (b) of subsection (2) the Council of the Society may do so.
PART III
PRIVILEGES, RESTRICTIONS AND OFFENCES IN CONNECTION WITH PRACTICE
8 Privileges of registered legal practitioners
(1) Subject to this Act, a registered legal practitioner who is in possession of a valid
practising certificate issued to him may practise the profession of law.

213
This word was left in the subsection, presumably in error, by sec 32(a) of Act 6 of 2005. It should
be disregarded.
214
The reference appears to be incorrect. It should be to section 5(1)(c).

72
 (2) Without derogation from the generality of subsection (1), but subject to this Act—
(a) a registered legal practitioner who is in possession of a valid practising certificate
issued to him shall have the right of audience in any court in which persons are enti-
tled by law to legal representation;
(b) a registered notary public who is in possession of a valid practising certificate issued
to him may execute, attest and authenticate anything which is required to be execut-
ed, attested or authenticated by a notary public;
(c) a registered conveyancer who is in possession of a valid practising certificate issued
to him may prepare any document for registration in a Deeds Registry or for attesta-
tion or execution by a registrar of deeds.
9 Offences by unqualified persons
(1) No person other than a registered legal practitioner, registered notary public or reg-
istered conveyancer shall practise as such or in any manner hold himself out as or pretend to
be or make use of any words or any name, title, designation or description implying or tend-
ing to the belief that he is a legal practitioner, notary public or conveyancer, as the case may
be, or is recognised by law as such.
(2) Subject to any other law, no person other than a registered legal practitioner who is
in possession of a valid practising certificate issued to him shall—
(a) sue out any summons or process or commence, carry on or defend any action, suit or
other proceeding in any court of civil or criminal jurisdiction in the name of any
other person; or
(b) for or in expectation of any fee, commission, gain or reward in any way instruct or
assist any other person to sue out or threaten to sue out any summons or process or
to commence, carry on or defend any action, suit or other proceeding in any court of
civil or criminal jurisdiction; or
(c) appear, plead or act in the capacity of a legal practitioner for or on behalf of any
other person in any action, suit or other proceeding in any court of civil or criminal
jurisdiction:
Provided that, nothing in this subsection contained shall prevent any director or officer in
the sole employment of a corporation or any member of a partnership doing any such act as is
mentioned in paragraph (a) in the name of such corporation or partnership.
(3) Subject to any other law, no person other than a registered notary public who is in
possession of a valid practising certificate issued to him shall execute, attest or authenticate
anything which is required to be executed, attested or authenticated by a notary public.
(4) Subject to any other law, no person other than a registered conveyancer who is in
possession of a valid practising certificate issued to him shall, for or in expectation of any fee,
commission, gain or reward, prepare any document for registration in a Deeds Registry or for
attestation or execution by a registrar of deeds.
(5) If any person contravenes this section, he shall be guilty of an offence and liable to a
fine not exceeding level eight or to imprisonment for a period not exceeding one year or to
both such fine and such imprisonment.
[Subsection as amended by section 4 of Act No. 22 of 2001]

10 Prohibition against unqualified persons preparing certain instruments

(1) Save as provided in subsections (4) and (5), any person, not being a registered legal
practitioner who is in possession of a valid practising certificate issued to him, who in return
for or in expectation of any fee, commission, gain or reward, direct or indirect, to himself or
to any other person, draws or prepares any of the following instruments or documents—
(a) a will or other testamentary instrument;

73
 (b) any legal process in any action, suit or other proceeding in a court of civil or crimi-
nal jurisdiction;
(c) any contract, deed or instrument relating to the creation or dissolution of any part-
nership or any variation of the terms thereof;
(d) the memorandum or articles of association of a company;
(e) a contract, deed or instrument for the acquisition, disposal, exchange or lease of
immovable property or any real right relating thereto, other than a contract, deed or
instrument for the lease of immovable property for a period of less than five years;
shall be guilty of an offence and liable to a fine not exceeding level eight or to imprisonment
for a period not exceeding one year or to both such fine and such imprisonment.
[Subsection as amended by sec 4 of Act No. 22 of 2001]
(2) If a person draws or prepares a will or other testamentary instrument in return for
the appointment of himself or a particular person as executor to whom commission or other
remuneration will be payable, whether in terms of that testamentary instrument or otherwise,
he shall be deemed for the purposes of subsection (1) to have done so for or in expectation of
a fee, gain or reward.
(3) No document referred to in subsection (1) shall be invalid only by reason of the fact
that it has been drawn in contravention of this section.
(4) Subsection (1) shall not apply to—
(a) any member of the Public Service drawing or preparing any instrument or document
in the course of his duty;
(b) any person employed merely to copy or translate any instrument or document;
(c) any trustee or assignee under the laws relating to insolvency, or any executor, ad-
ministrator or curator, or any liquidator or judicial manager of a company drawing
or preparing any instrument or document in the course of his statutory duties and re-
ceiving therefor such fees as may be allowed by law.
(5) Subsection (1), in so far as they relate to the instrument or documents referred to
in—
(a) paragraph (d) thereof, shall not apply to a person who is a fellow or associate mem-
ber of the Institute of Chartered Secretaries and Administrators in Zimbabwe or a
member of the Institute of Chartered Accountants of Zimbabwe;
(b) paragraph (e) thereof, shall not apply to—
(i) a resolution passed or to be passed by the directors or board of management
of a body corporate or unincorporate;
(ii) an official employed by—
A. a city or municipal council, town council, local board or rural district
council; or
B. the Corporation as defined in section 2 of the Agricultural Finance Act
[Chapter 18:02]; or
[Paragraph substituted by sec 29 of Act No. 14 of 1999]
C. the National Railways of Zimbabwe referred to in section 3 of the
Railways Act [Chapter 13:09];
who draws or prepares a contract, deed or instrument referred to in that para-
graph (e) in the course of his duty;
(iii) an auctioneer or estate agent who prepares a contract, deed or instrument re-
ferred to in that paragraph (e) in the ordinary course of his business.

74
11 Prohibition against practice by or in association with unqualified persons
(1) No person who has ceased to be a registered legal practitioner as a result of the dele-
tion of his name from the Register, or who has been suspended from practice as a legal practi-
tioner, shall, while his name is so deleted or he is so suspended, continue to practise directly
or indirectly as a legal practitioner, notary public or conveyancer, whether by himself or in
partnership or association with any other person, nor shall he, except with the written consent
of the Council of the Society, be employed in any capacity whatsoever connected with the
legal profession.
(2) No registered legal practitioner who has ceased to be a registered notary public or
conveyancer as a result of the deletion of his name from the appropriate section of the Regis-
ter, or who has been suspended from practice as a notary public or conveyancer, shall, while
his name is so deleted or he is so suspended, continue to practise, directly or indirectly, as a
notary public or conveyancer, as the case may be, whether by himself or in partnership or as-
sociation with any other person.
(3) Except with the written consent of the Council of the Society, which consent may be
given for such period and subject to such conditions as the Council may think fit, no regis-
tered legal practitioner shall employ—
(a) in any capacity whatsoever any person whose name has been deleted from the Reg-
ister as a legal practitioner or who has been suspended from practice as a legal prac-
titioner; or
(b) as a notary public any registered legal practitioner whose name has been deleted
from the Register as a notary public or who has been suspended from practice as a
notary public; or
(e) as a conveyancer any registered legal practitioner whose name has been deleted
from the Register as a conveyancer or who has been suspended from practice as a
conveyancer;
until the name of that person or legal practitioner is restored to the Register or his suspension
is terminated, as the case may be, and he is again entitled in terms of this Act to practise as
legal practitioner, notary public or conveyancer, as the case may be.
(4) No registered legal practitioner shall make over, share or divide his professional fees
with any person other than a registered legal practitioner practising as a legal practitioner, no-
tary public or conveyancer in Zimbabwe:
Provided that nothing in this subsection shall be construed as preventing a legal practi-
tioner from paying a salary to a person in his employ who is not a registered legal practitioner.
(5) Any person who contravenes any provision of this section shall be guilty of an of-
fence and liable to a fine not exceeding level eight or to imprisonment for a period not ex-
ceeding one year or to both such fine and such imprisonment.
[Subsection as amended by section 4 of Act No. 22 of 2001]

12 Prohibition against practice without practising certificate

No registered legal practitioner shall practise, whether as such or as a notary public or
conveyancer, directly or indirectly, by himself or in partnership or association with any other
person, except in accordance with the terms and conditions of a valid practising certificate
issued to him:
Provided that this section shall not apply to—
(a) a person who is in the full-time employment of the State, in relation to things done
in the course of his employment; or
(b) a person who holds a residential exemption certificate, in relation to the matter for
which the residential exemption certificate was granted; or

75
 (c) a person who is in the full-time employment of the Zimbabwe Revenue Authority,
established by section 3 of the Revenue Authority Act [Chapter 23:11] (No. 17 of
1999), and who performs services for the Zimbabwe Revenue Authority as a legal
practitioner, in relation to things done in the course of his employment.
[Paragraph inserted by sec 32 of Act 6 of 2005]

12A Pre-practice examinations and training

(1) Subject to subsection (2), no registered legal practitioner, notary public or convey-
ancer shall practise as such directly or indirectly, by himself or in partnership with any other
person, unless he has passed examinations and undergone practical training prescribed by the
Council for Legal Education in rules made under section forty-nine.
(2) No rules referred to in subsection (1), and no amendment of such rules, shall affect
the right to practise of a registered legal practitioner, notary public or conveyancer who was
entitled to practise as such before the date of commencement of the rules or amendment, as
the case may be.
[Section inserted by sec 2 of Act No. 11 of 1996, as modified by SI 135/96]

PART IV
TRUST ACCOUNTS
13 Opening of trust accounts
(1) Every registered legal practitioner who holds or receives any moneys for or on be-
half of another—
(a) in his capacity as a legal practitioner, notary public or conveyancer; or
[Paragraph as amended by sec 3 of Act No.11 of 1996, as modified by SI 135/96]
(b) in his capacity as an executor, administrator or trustee;
shall open and keep a current account at a bank as a separate trust account in which he shall
deposit all such moneys:
Provided that—
(i) where the administration or control of any such moneys is shared with any
other person who is not his partner or employee, the legal practitioner may
agree with that other person that the moneys administered or controlled by
them shall be otherwise dealt with;
(ii) this subsection shall not apply to a person who is in the full-time employment
of the State, in relation to things done in the course of his employment.
(2) A registered legal practitioner may, in addition to the trust account referred to in
subsection (1), open and keep a trust account bearing interest at a bank or building society or
with an institution approved by the Council of the Society for the purposes of this subsection
in which he may, unless otherwise instructed by the person on whose account or for whom the
moneys are held or received, as the case may be, deposit, subject to subsection (4) and to such
limitations and conditions as may be prescribed by regulation, any such moneys as are not
immediately required for any purpose.
(3) If, with the authority of the person for or on account of whom he holds or has re-
ceived those moneys, a registered legal practitioner holds or receives any moneys in a sepa-
rate account from those mentioned in subsections (1) and (2), such account shall—
(a) be regarded as a trust account for the purposes of this Part; and
(b) be in the same name as the trust account opened in terms of subsection (1) and shall
indicate the name of the person for or on account of whom the money is held.
(4) In the case of an account opened in terms of subsection (2) or (3)—
(a) deposits shall only be made from a trust account opened in terms of subsection (1);

76
 (b) withdrawals shall only be made in favour of a trust account opened in terms of sub-
section (1).
(5) Where a trust account is opened in terms of subsection (1) or (2)—
(a) that account shall indicate that it is an account opened in terms of subsection (1) or
(2), as the case may be;
(b) any interest on the moneys deposited in that account shall be paid by the registered
legal practitioner concerned to the Compensation Fund at such times and in such
manner as may be prescribed by by-laws, less such portion thereof as the Council of
the Society may from time to time direct, which may be retained by the legal practi-
tioner concerned towards the costs of the operating and auditing of his trust ac-
counts.
14 Books of account
(1) A registered legal practitioner shall keep proper books of account containing partic-
ulars and information of—
(a) moneys received, held or paid by him for or on account of any other person; and
(b) moneys deposited by him in his trust accounts; and
(c) interest paid on moneys deposited in a trust account opened in terms of subsection
(1) or (2) of section thirteen.
(2) The Council of the Society may appoint an auditor, registered as a public auditor, in
terms of the Public Accountants and Auditors Act [Chapter 27:12] to inspect the books of
account of a legal practitioner in order to ascertain that the provisions of section thirteen and
of any relevant regulations and by-laws are being observed.
(3) A person appointed in terms of subsection (2) shall report to the Council of the So-
ciety in such general terms as not to disclose confidential information entrusted to the legal
practitioner whose books he has inspected.
(4) If it is found upon an inspection referred to in subsection (2) that a legal practitioner
has not complied with the provisions of section thirteen or of any relevant regulations or by-
laws, the Council of the Society shall be entitled to recover the cost of the inspection from
that legal practitioner.
15 Trust account moneys excluded from insolvency or attachment
An amount standing to the credit of a trust account opened in terms of section thirteen by
a registered legal practitioner shall—
(a) not be regarded as forming part of the assets of the legal practitioner on the death or
insolvency of or assignment of his estate by that legal practitioner; and
(b) not be liable to attachment at the instance of a creditor of that legal practitioner:
Provided that any excess remaining after payment of—
(a) the claims of all persons whose moneys have or should have been deposited in a
trust account of his; and
(b) any claim by the Compensation Fund in respect of interest due to it in terms of par-
agraph (b) of subsection (5) of section thirteen;
shall form part of the assets of that legal practitioner and shall be liable to attachment at the
instance of a creditor of that legal practitioner.
16 Control of operation of trust account
(1) …
[Subsection repealed by sec 3 of Act No. 10 of 2000]
(2) In the event of—
(a) the death of a registered legal practitioner; or

77
 (b) the insolvency of or the assignment of his estate by a registered legal practitioner;
or
(c) …
[Paragraph repealed by sec 3 of Act No. 10 of 2000]
(d) a registered legal practitioner being declared by a court of competent jurisdiction to
be incapable of managing his own affairs; or
(e) a registered legal practitioner abandoning his practice;
the Master of the High Court may, upon application made by the Council or by a person hav-
ing an interest in a trust account of that legal practitioner, on good cause shown, appoint a
curator bonis to control and administer that trust account with such of the rights, duties and
powers prescribed by regulation as the Master may deem fit.
(2a) A curator bonis appointed in terms of subsection (2) shall, in the discharge of his
functions—
(a) in urgent matters, notwithstanding any enactment to the contrary but subject this
Act, deal with the trust account for the benefit of any client ;
(b) have due regard to the rights and interests of the clients of that practice and the in-
terests of the legal practitioner concerned.
[Subsection inserted by sec 3 of Act No. 10 of 2000]
(3) A person aggrieved by a decision of the Master in terms of subsection (2) may,
within thirty days after the decision becomes known to him, appeal against that decision to a
judge of the High Court who may refer the matter to the court for argument.
(4) On any appeal in terms of subsection (3) the judge or court, as the case may be,
may—
(a) confirm or vary the decision of the Master; or
(b) give such other decision as in his or its opinion the Master ought to have given.
(5) Nothing in this section contained shall be construed as preventing a registered legal
practitioner who was practising in partnership with a legal practitioner referred to in subsec-
tion (2) from continuing to operate on a trust account of the partnership.
17 Orders as to costs
The High Court shall have power to order that—
(a) any costs incurred by the Council of the Society in respect of an application or ap-
peal made in terms of section sixteen; or
(b) the cost of an inspection made in terms of subsection (2) of section fourteen which
is due by the legal practitioner concerned to the Council of the Society in terms of
subsection (4) of that section;
shall be a preferent charge upon the moneys standing to the credit of the trust account con-
cerned, ranking next after the remuneration of the curator bonis and the expenses of adminis-
tering that trust account.
18 Saving of liability of bank, etc., in relation to trust account
A bank, building society or other institution at which a registered legal practitioner keeps
a trust account shall not, by reason only of the name or style by which the account is distin-
guished, be deemed to have knowledge that the registered legal practitioner is not entitled ab-
solutely to all moneys paid or credited to that account:
Provided that nothing in this section contained shall relieve the bank, building society or
other institution from any liability or obligation under which it would be apart from this Act.

78
19 Limitation of set-off, etc., against trust account
Notwithstanding anything in section eighteen contained, a bank, building society or other
institution at which a registered legal practitioner keeps a trust account shall not, in respect of
any liability of the registered legal practitioner to that bank, building society or other institu-
tion which is not a liability arising out of or in connection with that account, have or obtain
any recourse or right by way of set-off, counterclaim, charge or otherwise against moneys
standing to the credit of that account.
20 Saving of set-off, etc., against trust account
Nothing in this Part contained shall be construed so as to take away or affect a just claim,
lien, counterclaim, right of set-off or charge of any kind which a registered legal practitioner
may at common law or in terms of an enactment have against or upon moneys held or re-
ceived by him on account of another person.
21 Council of the Society may require certified balance of trust account
A bank, building society or other institution at which a registered legal practitioner keeps
a trust account shall, whenever so required by the Council of the Society, furnish to the Coun-
cil of the Society a signed certificate of balance certifying the amount, if any, standing to the
credit or debit of that trust account in that bank, building society or other institution as at such
date or dates as may be specified by the Council of the Society.
22 Offences in relation to trust accounts
A registered legal practitioner who contravenes any provision of this Part shall be guilty
of an offence and liable to a fine not exceeding level eight or to imprisonment for a period not
exceeding one year or to both such fine and such imprisonment.
[Section as amended by section 4 of Act No. 22 of 2001]

PART IVA
CONTINGENCY FEE ARRANGEMENTS
22A Interpretation in Part IVA
In this Part—
―contingency fee arrangement‖ means an agreement entered into between a registered le-
gal practitioner and his client in terms of which no fee, other than court fees or dis-
bursements are payable by the client for the legal practitioner‘s services in connection
with any legal proceedings unless the proceedings result in a decision or settlement in
the client‘s favour;
―normal fee‖, in relation to a legal practitioner, means the fee, excluding disbursements,
that he would have charged his client had there been no contingency fee arrangement.
22B Legal practitioners may enter into contingency fee arrangements
Subject to this Part and to regulations, a registered legal practitioner may enter into a con-
tingency fee arrangement with a client regarding the services he provides the client in connec-
tion with such legal proceedings as may be prescribed in regulations.
22C Form of contingency fee arrangement
(1) A contingency fee arrangement shall be in writing and shall be signed by the client
and the legal practitioner concerned.
(2) A contingency fee arrangement shall specify such particulars as may be prescribed
in regulations.
22D Non-disclosure of contingency fee arrangement
The fact that a contingency fee arrangement has been concluded shall not be revealed to
the court that hears the legal proceedings concerned.

79
22EMaximum fees payable under contingency fee arrangement
No fees payable in terms of a contingency fee arrangement shall exceed—
(a) the normal fee of the legal practitioner concerned, plus such percentage of that fee
as may be prescribed in regulations; or
(b) such percentage of the total amount awarded to the client in respect of the proceed-
ings concerned as may be prescribed in regulations;
whichever is the lesser amount.
22F Review of contingency fee arrangement or fee payable
(1) A client may refer a contingency fee arrangement or the fee claimed thereunder for
review to the Society.
(2) On review the Society may set aside or modify, in whole or in part, any provision of
the contingency fee arrangement or any fee claimed thereunder which, in its opinion, is un-
conscionable or unreasonable or does not comply with the provision of this Act.
[Part inserted by sec 4 of Act No. 10 of 2000]

PART V
DISCIPLINE
23 Unprofessional, dishonourable or unworthy conduct
(1) Unprofessional, dishonourable or unworthy conduct on the part of a registered legal
practitioner, whether in the course of his practice as such or as a notary public or conveyancer
shall include the commission of any of the following acts—
(a) touting;
(b) advertising;
(c) contravening or failing to comply with any provision of this Act or any regulations,
rules or by-laws made thereunder;
(d) withholding the payment of trust money without lawful cause;
(e) subject to Part IVA, champerty;
[Paragraph substituted by sec 5 of Act No. 10 of 2000]
(f) in any way assisting, allowing or enabling an unregistered person to charge, recover
or receive any fee or derive any remuneration in respect of or in connection with the
preparation or execution of any document or the performance of any professional
work which only a registered legal practitioner, notary public or conveyancer is
qualified by law to prepare, execute or perform, or in any way conniving at any ar-
rangement, agreement or understanding whatsoever whereby any such fee or remu-
neration shall be charged, recovered or received by any such unregistered person;
(g) opening or maintaining any office or branch which is not under the continuous per-
sonal supervision of a registered legal practitioner;
(h) keeping the accounts of his practice as a legal practitioner in the books of accounts
utilised in connection with any other business in which he may be interested jointly
with an unregistered person;
(i) remunerating an employee who is an unregistered person by way of a share in the
profits of his practice as a legal practitioner, notary public or conveyancer;
(j) in the case of a legal practitioner, notary public or conveyancer who also carries on
the business of an auctioneer, referring to or mentioning any of his professional
qualifications as legal practitioner on his sale advertisements;
(k) tendering or offering in response to advertisement, circulars or similar invitations,
either directly or indirectly, for the performance of any work or business proper to

80
 the calling of a legal practitioner, notary public or conveyancer or commonly asso-
ciated therewith;
(l) assisting any unregistered person to recover charges for services, rendered by in-
cluding such charges in any bill of costs or memorandum of charges rendered by
him as a legal practitioner, notary public or conveyancer without disclosing the facts
in such bill or memorandum;
(m) allowing his name with any of his qualifications as legal practitioner, notary public
or conveyancer to appear by way of advertisement or notification or by way of in-
formation upon any business letterheads, accounts or other documents whatsoever in
conjunction with the name of an unregistered person so as to convey, or be likely to
convey, the impression that he is associated in the legal profession with that unregis-
tered person;
(n) entering into or continuing to be a party to any contract or arrangement with an un-
registered 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;
(o) entering into or continuing to be a party to any contract or partnership with or of
employment by an unregistered person, the direct or indirect result of which is to
enable the unregistered person to enjoy or participate in fees reserved solely to a le-
gal practitioner, notary public or conveyancer or to secure for the registered legal
practitioner the benefit of professional business solicited by the unregistered person;
(p) levying any charges or accepting any fee which is less than the minimum charge or
fee prescribed in by-laws in a tariff of minimum charges.
(2) Subsection (1) shall not in any way—
(a) preclude the Society from prescribing in by-laws further acts which shall constitute
unprofessional, dishonourable or unworthy conduct on the part of a registered legal
practitioner, notary public or conveyancer; or
(b) limit the discretion of the Council of the Society, the Disciplinary Tribunal or a
court in determining whether or not any act or omission, which is not specified in
subsection (1) or in by-laws, constitutes unprofessional, dishonourable or unworthy
conduct on the part of a registered legal practitioner, notary public or conveyancer.
24 Disciplinary Tribunal
(1) For the purpose of exercising disciplinary control and other powers conferred by
this Act, there is hereby established a Disciplinary Tribunal.
(2) The Disciplinary Tribunal shall consist of—
(a) a chairman and a deputy chairman who shall be judges of the High Court or the Su-
preme Court or are retired judges of the High or Supreme Court, and shall be ap-
pointed by the Chief Justice;
[Paragraph substituted by sec 6 of Act No. 10 of 2000]
(b) two other members selected, from time to time as the occasion arises, by the chair-
man of the Disciplinary Tribunal from a panel of names of ten registered legal prac-
titioners submitted by the Council of the Society.
(3) If the Council of the Society for any reason fails or refuses to submit a panel of
names as required by paragraph (b) of subsection (2), the chairman of the Disciplinary Tribu-
nal shall appoint two registered legal practitioners whom he considers fit.
(4) If at any time a member of the Disciplinary Tribunal is unable for any reason to act
as such, he shall be replaced in accordance with the provisions of paragraph (a) or (b) of sub-
section (2) or subsection (3), as the case may be:

81
 Provided that before the replacement of any member in terms of this subsection, any de-
cision made or action taken by the chairman or deputy chairman and one other member shall
be valid.
[Proviso inserted by sec 6 of Act No. 10 of 2000]
(5) The procedure to be followed by the Disciplinary Tribunal shall be as prescribed in
regulations.
25 Evidence of unprofessional, dishonourable or unworthy conduct from
courts
Subject to the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter
7:04], if after the termination of any proceedings before a court—
(a) it appears to the court that there is prima facie evidence of unprofessional, dishon-
ourable or unworthy conduct on the part of a registered legal practitioner, the court
shall direct that a copy of the record of the proceedings, or a copy of such part of the
record as is material to the issue, be transmitted, free of charge, to the Council of the
Society;
(b) the Council of the Society requests that a copy of the record of the proceedings or a
copy of any part of the record be supplied to it on the ground that it is of direct in-
terest to the Council of the Society in the exercise of its functions in terms of this
Act, the registrar or clerk of the court shall comply with such request and shall
transmit, free of charge, such copy of the record or such part thereof to the Council
of the Society.
25A. Prohibition of operation of trust accounts and business accounts
Upon application made by the Council of the Society and upon good cause shown, the
Disciplinary Tribunal may—
(a) prohibit a registered legal practitioner from operating in any way any trust account
or business account of his; and
(b) appoint a curator bonis to control and administer such trust accounts or business
accounts with such rights, duties and powers in relation thereto as the Disciplinary
Tribunal may consider fit, and subsection (2a) of section sixteen shall apply, mutatis
mutandis.
[Section inserted by sec 7 of Act No. 10 of 2000]

26 Council of the Society to refer cases to Disciplinary Tribunal

(1) Whenever there is brought to the notice of the Council of the Society an allegation
which might be the subject of an inquiry by the Disciplinary Tribunal, the Council of the So-
ciety shall have the power to call for such information and to cause such investigation to be
made as it thinks necessary.
(2) After investigation in terms of subsection (1) and allowing the person concerned to
make written representations, the Council of the Society shall refer the matter to the Discipli-
nary Tribunal for inquiry and may appoint a registered legal practitioner to present a charge
on the evidence relating thereto at the inquiry:
Provided that—
(i) if the Council of the Society considers that—
(a) the conduct complained of would not, even if substantiated, constitute unpro-
fessional, dishonourable or unworthy conduct; or
(b) for any other reason the allegation should not be the subject of inquiry by the
Disciplinary Tribunal;
the Council of the Society shall take such other action as it considers appropriate
and may, after first allowing the person concerned to make written representations,

82
 admonish that person and order him to pay a penalty not exceeding two thousand
dollars which shall be payable to the Society;
(ii) if the allegation forms or is likely to form the subject of criminal proceedings in a
court of law, the Council of the Society may postpone referring the matter to the
Disciplinary Tribunal until such criminal proceedings have been terminated.
[Subsection as amended by sec 8 of Act No. 10 of 2000]

26A Suspension from practice

(1) If it appears to the Council of the Society that there is prima facie evidence that a
registered legal practitioner—
(a) is failing to attend reasonably to the affairs of his practice or has abandoned his
practice; or
(b) is contravening any provision of this Act or any rules or by-laws made thereunder;
or
(c) may be guilty of unprofessional, dishonourable or unworthy conduct;
and the legal practitioner concerned has failed to provide a satisfactory explanation in the pre-
scribed manner to the Council of the Society of the conduct complained of upon written re-
quest being made to him or, despite diligent search, he cannot be found at his business or res-
idential address, the Council of the Society may, if it considers it necessary that the legal prac-
titioner concerned be suspended from practice pending an investigation and inquiry in terms
of section twenty-six, the Council of the Society may apply to the Disciplinary Tribunal for
the suspension of the registered legal practitioner for such period, not exceeding six weeks, as
may be necessary to enable the Council of the Society to cause an investigation to be made
for the purposes of an inquiry in terms of this Part.
(2) After considering an application referred to in subsection (1), the Disciplinary Tri-
bunal may—
(a) grant the application; or
(b) dismiss the application.
(3) In granting an application in terms of paragraph (a) of subsection (2), the Tribunal
may—
(a) order that the registered legal practitioner concerned shall, subject to subsection (1),
be suspended from practice from the date of the order;
(b) during the period of suspension, prohibit the registered legal practitioner from oper-
ating in any way any trust account or business account or from opening any trust or
business account;
(c) appoint another legal practitioner, whether or not in partnership with the legal prac-
titioner suspended from practice, as curator bonis of any trust or business account of
the practice with the power to act in urgent matters on behalf of the client and with
such rights, duties and other powers in relation thereto as the Disciplinary Tribunal
may determine;
(d) subject to subsection (1), specify the date upon which the Disciplinary Tribunal will
hold an inquiry in terms of this Part.
(4) Where an order has been granted in terms of paragraph (a) of subsection (2)—
(a) the registered legal practitioner concerned, the Council of the Society or the curator
bonis may apply to the Disciplinary Tribunal for the fixing of the date of the in-
quiry;
(b) the Council of the Society may apply to the Disciplinary Tribunal for the extension
of the period referred to in subsection (1) whereupon the Disciplinary Tribunal may
alter the date referred to in paragraph (d) of subsection (3);

83
 (c) the Disciplinary Tribunal may, on application being made to it, lift the suspension or
vary any order made in terms of subsection (3).
[Section inserted by sec 9 of Act No. 10 of 2000]

27 Taking of evidence by Disciplinary Tribunal

(1) For the purposes of an inquiry in terms of this Part, the Disciplinary Tribunal may
take evidence and may—
(a) summon any person as witness and, where it thinks fit, require him to produce any
book, record, document or thing; and
(b) through the chairman administer an oath to any person; and
(c) examine any book, record, document or thing which has been produced before it.
(2) A person who gives evidence as a witness before the Disciplinary Tribunal shall be
entitled to all the privileges to which a witness is entitled in civil proceedings in the High
Court.
(3) Any person who—
(a) has been summoned to attend before the Disciplinary Tribunal and—
(i) refuses or fails without sufficient cause to attend and give evidence relevant
to the inquiry at the time and place stated in the summons; or
(ii) refuses to be sworn when the chairman wishes to administer an oath to him;
or
(iii) refuses or fails without sufficient cause to produce any book, record, docu-
ment or thing which he has been required in the summons to produce;
or
(b) attends as a witness before the Disciplinary Tribunal and refuses to answer or to an-
swer fully and satisfactorily to the best of his knowledge and belief any question
lawfully put to him;
shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment
for a period not exceeding six months or to both such fine and such imprisonment.
[Subsection as amended by section 4 of Act No. 22 of 2001]
(4) Any person who at an inquiry held by the Disciplinary Tribunal gives false evidence
on oath, knowing such evidence to be false or not knowing or believing it to be true, shall be
guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a
period not exceeding two years or to both such fine and such imprisonment.
[Subsection as amended by section 4 of Act No. 22 of 2001]

28 Powers of Disciplinary Tribunal

(1) If after due inquiry the Disciplinary Tribunal decides that—
(a) a registered legal practitioner has, whether before or after his registration, been
guilty of unprofessional, dishonourable or unworthy conduct or is unfit to practise as
a legal practitioner, notary public or conveyancer; or
(b) it would be contrary to the public interest to allow a registered legal practitioner to
continue to practise as a legal practitioner, notary public or conveyancer because of
mental or physical disability or addiction to intoxicating liquor or drugs; or
(c) a registered practitioner is failing or has failed to comply with the requirement of
any regulation made in terms of section eighty-seven;
the Disciplinary Tribunal shall do one or more of the following—
(i) direct that his name be deleted from the Register, whether as a legal practitioner,
notary public or conveyancer;

84
 (ii) order his suspension for a specified period from practising as a legal practitioner,
notary public or conveyancer;
(iii) impose such conditions as it deems fit subject to which he shall be entitled to prac-
tise as a legal practitioner, notary public or conveyancer;
(iv) order him to pay a penalty not exceeding an amount equivalent to a fine of level six,
which shall be payable to the Compensation Fund or the Society, as the Disciplinary
Tribunal may determine;
[Paragraph as amended by section 4 of Act No. 22 of 2001]
(v) censure him;
(vi) caution him and postpone for a period not exceeding five years any further action
against him on one or more conditions as to his future conduct during that period.
(1a) Where the Disciplinary Tribunal makes a direction or order in terms of subpara-
graph (i) or (ii) of subsection (1), as the case may be, the Disciplinary Tribunal may also
make an order in terms of section twenty-five A and may, having regard to the circumstances
of the case, authorise the curator bonis to cause the winding up of the affairs of the practice.
[Subsection inserted by sec 10 of Act No. 10 of 2000]
(2) If at any time the Disciplinary Tribunal decides that a person who is undergoing or
has undergone any practical training prescribed as a qualification for registration or who is
practising or has practised in terms of section eighty—
(a) has been guilty of conduct which, had he been registered, would have amounted to
unprofessional, dishonourable or unworthy conduct; or
(b) is unfit to be registered;
the Disciplinary Tribunal shall—
(i) prohibit, either indefinitely or for a period specified by the Disciplinary Tribunal,
the registration of such person; or
(ii) do any one or more of the things specified in paragraphs (iii), (iv), (v) and (vi) of
subsection (1).
(3) Where a registered legal practitioner has been convicted within or outside Zimba-
bwe of an offence by a court of law and the Council of the Society or the Disciplinary Tribu-
nal is of opinion that such offence constitutes unprofessional, dishonourable or unworthy
conduct on the part of the legal practitioner, whether as a legal practitioner, notary public or
conveyancer, the Council of the Society or the Disciplinary Tribunal, as the case may be,
may, if it thinks fit, on proof before it of such conviction and without hearing further evi-
dence, deal with the convicted person in accordance with this Act:
Provided that the convicted person shall be afforded an opportunity of tendering, in writ-
ing or in person or by his legal representative, as he may elect, an explanation to the Council
of the Society or the Disciplinary Tribunal, as the case may be, in extenuation of his conduct.
(4) If at any time the Disciplinary Tribunal is satisfied that a registered legal practitioner
or other person has not complied with any conditions imposed upon his practice or conduct in
terms of subsection (1) or (2), the Disciplinary Tribunal, after giving reasonable notice to the
registered legal practitioner or other person concerned, may proceed further to do one or more
of the things specified in subsection (1) or (2), as the case may be.
(5) After any inquiry in terms of this Part the Disciplinary Tribunal may order the legal
practitioner or other person concerned to pay the expenses incurred in connection with the
inquiry, including any expenses incurred by the Society in connection with the inquiry, or any
part of these expenses as it thinks fit.
(6) A person authorized by the Disciplinary Tribunal may, by action in any court of
competent jurisdiction, recover from the person concerned any expenses he has been ordered
to pay in terms of subsection (5).

85
 (7) The Disciplinary Tribunal shall inform the Council of the Society and the Registrar
of any action taken by it in terms of this section.
29 Appeals from decisions of Disciplinary Tribunal
(1) Any person who is aggrieved at the order or findings of, or penalty imposed by, the
Disciplinary Tribunal in terms of section twenty-eight may, within thirty days after the date of
such findings or imposition of such penalty, appeal to the Supreme Court in such manner as
may be prescribed by rules of court made in terms of the Supreme Court Act [Chapter 7:13].
(2) On an appeal in terms of subsection (1), the Supreme Court may—
(a) confirm, vary or set aside any finding, order or penalty of the Disciplinary Tribunal;
or
(b) remit the matter to the Disciplinary Tribunal for further consideration;
and may make such other order as to costs or otherwise as may to it seem just:
Provided that the Supreme Court shall not set aside any findings or penalty by reason of
any informality in the proceedings of the Disciplinary Tribunal which did not embarrass or
prejudice the appellant in answering the charge or in the conduct of his defence.
(3) The noting of an appeal in terms of this section shall not, pending the determination
of the appeal, suspend the decision appealed against unless the Disciplinary Tribunal, on ap-
plication being made to it, directs otherwise, and for such purposes the Disciplinary Tribunal
may give such directions as to the conditions upon which the registered legal practitioner con-
cerned may, pending the determination of the appeal, practise or operate any trust or business
account of the practice.
[Subsection inserted by sec 11 of Act No. 10 of 2000]

30 Suspension of practitioner upon insolvency

(1) Whenever the estate of any legal practitioner is sequestrated, assigned or declared
insolvent or bankrupt, whether under the law of Zimbabwe or of any other country, such legal
practitioner shall ipso facto be suspended until such time as the Disciplinary Tribunal may in
accordance with subsections (2), (3) and (4) order the removal of such suspension.
(2) Any legal practitioner who has been suspended under subsection (1) may at any
time, after giving one month‘s notice in writing to the Council of the Society, move the Disci-
plinary Tribunal for the removal of such suspension.
(3) The Society may be represented by a legal practitioner in support of or in opposition
to any application made under subsection (2).
(4) Upon the hearing of any application under subsection (2), the Disciplinary Tribunal
may make any order which in the circumstances of the case seems fit.
31 Registrar to make appropriate entry in Register and to publish order of Dis-
ciplinary Tribunal
(1) Where, by order of the Disciplinary Tribunal, a legal practitioner is suspended from
practice, whether as a legal practitioner, notary public or conveyancer, or his name is ordered
to be deleted from the Register, the Registrar shall make the appropriate entry or alteration in
the Register.
(2) Every order referred to in subsection (1) shall be published by the Registrar in the
Gazette as soon after it has been made as is reasonably practicable.
32 Restoration to Register
(1) A legal practitioner whose name has been deleted from the Register, whether as a
legal practitioner, notary public or conveyancer, may, subject to subsection (2), apply to the
High Court to have his name restored to the Register.
(2) An application referred to in subsection (1) shall be accompanied by a recommenda-
tion in support thereof from the Council of the Society.

86
 (3) An application in terms of subsection (1) shall be made in such manner as may be
prescribed in rules of court.
(4) Any order restoring the name of a legal practitioner to the Register shall, as soon as
practicable after the making of the order, be published by the Registrar in the Gazette.
PART VI
COUNCIL FOR LEGAL EDUCATION
33 Interpretation in Part VI
In this Part—
―committee‖ means a committee of the Council for Legal Education appointed in terms of
section forty-one;
―member‖ means a member of the Council for Legal Education;
―professional examination‖ means an examination set by the Council for Legal Education
in the exercise of its powers under paragraph (c) of subsection (1) of section thirty-
five.
34 Council for Legal Education
There is hereby established a council, to be known as the Council for Legal Education,
which shall be a body corporate capable of suing and being sued in its corporate name and,
subject to this Act, of performing all acts that bodies corporate may by law perform.
35 Functions and powers of Council for Legal Education
(1) The functions of the Council for Legal Education shall be—
(a) to ensure the maintenance of appropriate standards in legal education and training in
Zimbabwe;
(b) to determine the qualifications for registration in terms of this Act;
(c) to determine syllabuses for and to set, either by itself or through examiners, profes-
sional examinations to qualify persons to be registered in terms of this Act;
(d) to consider and grant or refuse applications from persons seeking exemption from
any professional examination or any part thereof.
(2) For the better exercise of its functions, the Council for Legal Education shall have
the following powers—
(a) to consider the content and standard of legal qualifications granted inside and out-
side Zimbabwe and to determine whether, and subject to what conditions, such qual-
ifications should entitle their holders to registration in terms of this Act;
(b) to provide courses of study and training for persons who wish to be registered or
who are registered in terms of this Act or who are engaged in any occupation con-
nected with the practice of law;
(c) to advise the Minister and any educational institutions concerned on all matters re-
lating to legal education and training;
(d) to review legislation relating to legal qualifications, education and training and to
advise the Minister on amendments that it considers should be made;
(e) to co-operate with other persons, institutions and authorities concerned with the
provision of legal education or training, whether in Zimbabwe or elsewhere;
(f) to establish, support and maintain law libraries and reading rooms and to print, pub-
lish and circulate books and periodicals on law and legal subjects;
(g) to employ, on such terms and conditions as it may fix, such lecturers and other
members of staff as may be necessary for conducting its affairs, and to suspend or
discharge any such persons;

87
 (h) to pay such remuneration and allowances and grant such leave of absence and, with
the approval of the Minister, to make such gifts, bonuses and the like to its employ-
ees as it thinks fit;
(i) to make provision for the payment of pensions, gratuities and like benefits to its em-
ployees and their dependants on their sickness, death or termination of service;
(j) to acquire movable and immovable property necessary or convenient for the exer-
cise of its functions and to maintain, alter, improve, mortgage or dispose of such
property;
(k) to invest any of its funds which are not immediately required, upon such security as
it may determine;
(l) to fix, levy and recover fees and charges for certificates issued, services rendered
and other things done by it in terms of this Act or any other enactment;
(m) to do anything which it is required or permitted to do in terms of this Act or any
other enactment;
(n) generally, to do all things that are calculated to facilitate, or are incidental or condu-
cive to the performance of, its functions in terms of this Act or any other enactment.
36 Membership of Council for Legal Education
(1) Subject to sections thirty-seven and thirty-nine, the Council for Legal Education
shall consist of the following members—
(a) a chairman appointed by the Minister, who shall be a person who is nominated by
the Chief Justice and who is or has been a judge of the Supreme Court or the High
Court; and
(b) seven other members appointed by the Minister, of whom—
(i) one shall be nominated by the Attorney-General; and
(ii) two shall be appointed from a list of not fewer than four names submitted by
the Faculty Board of the Faculty of Law of the University of Zimbabwe; and
(iii) two shall be appointed from a list of not fewer than four names submitted by
the Council of the Society; and
(iv) the remainder shall be persons employed in the Ministry for which the Minis-
ter is responsible.
(2) If the Faculty Board of the Faculty of Law of the University of Zimbabwe or the
Council of the Society fails to submit a list of names in terms of subparagraph (ii) or (iii) of
paragraph (b) of subsection (1) within a reasonable time after being called upon to do so, the
Minister may appoint any person to fill the vacancy.
37 Disqualifications for membership of Council for Legal Education
A person shall not be appointed as a member, and no person shall be qualified to hold of-
fice as a member, if—
(a) he has been adjudged or otherwise declared insolvent or bankrupt in terms of a law
in force in any country, and has not been rehabilitated or discharged; or
(b) he has made an assignment to or arrangement or composition with his creditors in
terms of a law in force in any country, and the assignment, arrangement or composi-
tion has not been rescinded or set aside: or
(c) the Disciplinary Tribunal, in terms of section twenty-eight, has—
(i) directed the deletion of his name from the Register; or
(ii) ordered his suspension from practice; or
(iii) prohibited his registration;

88
 and his name has not been restored to the Register or the period of his suspension or
prohibition has not elapsed, as the case may be; or
(d) within the period of five years immediately preceding the date of his proposed ap-
pointment, he has been sentenced in any country to a term of imprisonment imposed
without the option of a fine, whether or not any portion of the sentence has been
suspended, and he has not received a free pardon.
38 Terms and conditions of office of members of Council for Legal Education
(1) Subject to subsection (2) and to section thirty-nine, a member shall hold office for
such period, not exceeding three years, as the Chief Justice or the Minister, as the case may
be, may fix on his appointment.
(2) On the expiry of the period for which a member has been appointed, he shall con-
tinue to hold office until he has been reappointed or his successor has been appointed:
Provided that a member shall not hold office in terms of this subsection for a period ex-
ceeding six months.
(3) A member who resigns or retires shall be eligible for reappointment.
(4) Members shall hold office on such terms and conditions as the Minister, with the
approval of the Minister responsible for finance, may fix.
(5) A member of the Council for Legal Education shall be paid—
(a) such remuneration, if any, as the Minister, with the approval of the Minister respon-
sible for finance, may fix for members generally;
(b) such allowances, if any, as the Minister, with the approval of the Minister responsi-
ble for finance, may fix to meet any reasonable expenses incurred by the member in
connection with the business of the Council.
39 Vacation of office by members of Council for Legal Education
(1) A member shall vacate his office and his office shall become vacant—
(a) after giving the Minister such period of notice of intention to resign as may be fixed
in his terms and conditions of service or, if no such period has been fixed, after the
expiry of one month after the date he gives such notice, or after the expiry of such
other period of notice as he and the Minister may agree; or
(b) on the date he begins to serve a sentence of imprisonment, whether or not any por-
tion has been suspended, imposed without the option of a fine in any country; or
(c) if he becomes disqualified in terms of paragraph (a), (b) or (c) of subsection (1) of
section thirty-seven to hold office as a member; or
(d) if he is required in terms of subsection (2) to vacate his office.
(2) The Minister, after consulting the Council for Legal Education, may require a mem-
ber to vacate his office if the member—
(a) has been guilty of conduct which renders him unsuitable to continue to hold office
as a member; or
(b) has failed to comply with any term or condition of his office fixed in terms of sec-
tion thirty-eight; or
(c) is mentally or physically incapable of efficiently exercising his functions as a mem-
ber.
(3) The Minister, on the recommendation of the Council for Legal Education, may re-
quire a member to vacate his office if the Minister is satisfied that the member has been ab-
sent without the permission of the chairman of the Council from three consecutive meetings
of the Council, of which he has had notice, and that there was no just cause for the member‘s
absence.

89
 (4) On the death of, or the vacation of office by, a member, the Minister shall, subject to
section thirty-six, appoint a person to fill the vacancy.
40 Meetings and procedure of Council for Legal Education
(1) The Council for Legal Education shall hold its first meeting on such date and at such
place as the Minister may fix and thereafter, subject to this Part, the Council shall meet for the
dispatch of business and adjourn, close and otherwise regulate its meetings and procedure as
it thinks fit:
Provided that the Council shall meet at least three times a year.
(2) The chairman of the Council for Legal Education may himself at any time and shall,
at the request of not fewer than four members, convene a special meeting of the Council,
which meeting shall be convened for a date not sooner than seven days and not later than thir-
ty days after receipt of such request.
(3) Subject to subsection (4), the chairman of the Council for Legal Education shall pre-
side at meetings of the Council.
(4) If the chairman of the Council for Legal Education is absent from a meeting of the
Council, the members present may elect one of their number to preside at the meeting as
chairman.
(5) A majority of members shall form a quorum at any meeting of the Council for Legal
Education.
(6) All acts, matters or things authorized or required to be done by the Council for Le-
gal Education may be decided by a majority vote at a meeting of the Council at which a quor-
um is present.
(7) At all meetings of the Council for Legal Education each member present shall have
one vote on each question before the Council:
Provided that, in the event of an equality of votes, the chairman shall have a casting vote
in addition to a deliberative vote.
(8) Any proposal circulated among all members and agreed to by a majority of them
shall be of the same effect as a resolution passed at a duly constituted meeting of the Council
for Legal Education:
Provided that, if a member requires that any such proposal be placed before the Council
this subsection shall not apply to the proposal.
41 Committees of Council for Legal Education
(1) For the better exercise of its functions, the Council for Legal Education may estab-
lish committees to which it may delegate, either absolutely or subject to conditions, such of its
functions as it thinks fit:
Provided that—
(i) such a delegation shall not prevent the Council from exercising the functions con-
cerned;
(ii) the Council may amend or withdraw any decision of a committee in the exercise of
its delegated functions.
(2) The Council for Legal Education may appoint persons who are not members of the
Council to be members of any committee and, with the approval of the Minister, may fix the
terms and conditions of office of such persons.
(3) The procedure of any committee shall be as fixed by the Council for Legal Educa-
tion.
(4) Subject to this section, subsection (5) of section thirty-eight and subsections (4) to
(8) of section forty shall apply, mutatis mutandis, to committees and members thereof as they
apply to the Council for Legal Education and its members.

90
42 Minutes of proceedings of Council for Legal Education and committees
(1) The Council for Legal Education shall cause minutes of all proceedings of and deci-
sions taken at all meetings of the Council and of committees to be entered in books kept for
the purpose.
(2) Any minutes referred to in subsection (1) which purport to be signed by the chair-
man of the meeting to which the minutes relate or by the chairman of the next following
meeting of the Council for Legal Education or of the committee concerned, as the case may
be, shall be accepted for all purposes as prima facie evidence of the proceedings of and deci-
sions taken at the meeting concerned.
43 Secretary and other staff of Council for Legal Education
The Minister, with the approval of the Public Service Commission, may assign as secre-
tary and members of staff of the Council for Legal Education such persons employed in his
Ministry as will enable the Council properly to carry out its functions in terms of this Act.
44 Funds of Council for Legal Education
The funds of the Council for Legal Education shall consist of—
(a) such moneys as may be payable to the Council from moneys appropriated for the
purpose by Parliament; and
(b) any moneys to which the Council may be entitled from time to time, whether by
way of fees, gifts or otherwise.
45 Accounts of Council for Legal Education
(1) The Council for Legal Education shall keep proper books of account and other rec-
ords relating thereto in respect of all its activities, undertakings and property, including such
particular accounts and records as the Minister may direct.
(2) The Council for Legal Education shall prepare and submit to the Minister a state-
ment of accounts in respect of each financial year or such other period as the Minister may
direct.
(3) The Council for Legal Education shall—
(a) appoint as auditors one or more persons approved by the Minister who are registered
as public auditors in terms of the Public Accountants and Auditors Act [Chapter
27:12]; and
(b) ensure that the accounts kept in terms of subsection (1) are examined once in each
financial year by the auditors, in accordance with such directions as the Minister
may give the Council from time to time.
46 Validity of decisions and acts of Council for Legal Education and commit-
tees
No decision or act of the Council for Legal Education or any committee shall be invalid
solely because, at the time the decision was taken or the act was done or authorized—
(a) there were one or more vacancies in the membership of the Council or committee,
as the case may be; or
(b) a disqualified person acted as a member of the Council or the committee, as the case
may be;
if the duly appointed members who were present when the decision was taken or the act was
done or authorized by the Council or committee, as the case may be, constituted a quorum.
47 Execution of instruments by Council for Legal Education
Any agreement, certificate, notification or instrument approved by the Council for Legal
Education may be entered into or executed by any person generally or specially authorized by
the Council for that purpose.

91
48 Exemption from liability of Council for Legal Education and its members,
employees and agents
Neither the Council for Legal Education nor any member, employee or agent thereof
shall be liable for any loss, injury or damage sustained by a person as a result of the bona fide
exercise or performance by or on behalf of the Council of a function conferred or imposed
upon the Council by or in terms of this Act:
Provided that this section shall not be construed so as to prevent a person from recovering
compensation for any such loss, injury or damage caused by negligence or breach of contract.
49 Rules made by Council for Legal Education
(1) Subject to subsection (3), the Council for Legal Education may make rules prescrib-
ing any matters which in terms of this Act may be prescribed in such rules or which, in the
opinion of the Council, are necessary or convenient to be so prescribed for the better carrying
out of its functions.
(2) Rules made in terms of subsection (1) may provide for—
(a) the designation of legal qualifications which, by themselves or in conjunction with
any other qualifications, experience or training, qualify the holders to be registered
in terms of this Act;
(b) the syllabuses for and the conduct of professional examinations;
(c) applications for and the grant or refusal of exemptions from any professional exam-
ination or part thereof;
(d) lectures and courses of instruction for persons who intend to sit professional exami-
nations and for other persons;
(e) meetings of the Council for Legal Education and the procedure to be followed
thereat;
(f) the duties and responsibilities of members of staff of the Council for Legal Educa-
tion;
(g) fees payable for anything done by the Council for Legal Education in terms of this
Act or any other enactment.
(3) Rules made in terms of subsection (1) shall not have effect until they have been ap-
proved by the Minister and published in a statutory instrument.
49A Appeals against decisions of Council for Legal Education
(1) Any person who is aggrieved by any decision of the Council for Legal Education in
terms of this Part may, within thirty days after being notified of the decision, appeal against it
to the High Court in such manner as may be prescribed in rules of court.
(2) On an appeal in terms of subsection (1), the High Court may—
(a) confirm, vary or set aside the decision appealed against; or
(b) remit the matter to the Council for Legal Education for further consideration;
and may make such other order as to costs or otherwise as the Court considers just.
[Section inserted by sec 4 of Act No. 11 of 1996, as modified by SI 135/96]

PART VII
LAW SOCIETY OF ZIMBABWE
50 Interpretation in Part VII
In this Part—
―member‖ means a member of the Society but does not include an honorary member;
―councillor‖ means a member of the Council of the Society.

92
51 Law Society of Zimbabwe
(1) The Law Society of Zimbabwe which was incorporated in terms of the Law Society
of Zimbabwe (Private) Act [Chapter 223 of 1974] shall, on and after the fixed date, continue
as a corporate body under the same name and shall be capable of suing and being sued and,
subject to this Act, of performing such acts as bodies corporate may by law perform, includ-
ing the acquisition, holding and alienating of movable and immovable property and other
rights.
(2) All assets, rights and obligations which belonged or attached to the Law Society of
Zimbabwe immediately before the fixed date shall, on and after that date, continue to belong
and attach to the Society.
52 Membership of Society
(1) Subject to this Act, every registered legal practitioner residing in Zimbabwe shall
have the right to become a member of the Society and every member of the Society shall be
entitled to cease to be a member.
(2) Unless within the period of thirty days following—
(a) the fixed date, in the case of a registered legal practitioner residing in Zimbabwe
who is deemed to be registered in terms of section eighty; or
(b) the date of his registration, in the case of any other registered legal practitioner re-
siding in Zimbabwe;
any such registered legal practitioner gives notice to the president of the Society that he does
not wish to become a member, such legal practitioner shall be deemed, on the expiry of the
said period, to have become a member of the Society.
(3) Any member whose name has been deleted from the Register shall cease to be a
member of the Society, and any member who has been suspended from practice in terms of
this Act shall become disentitled to the privileges of membership during such suspension.
53 Objects and powers of Society
The objects and powers of the Society shall be—
(a) to cause to be kept—
(i) registers of the names and addresses of registered legal practitioners; and
(ii) any other registers which may be necessary;
(b) to represent the views of the legal profession and to maintain its integrity and status;
(c) to define and enforce correct and uniform practice and discipline among legal prac-
titioners;
(d) to promote the amicable settlement or adjustment of disputes concerning profes-
sional matters;
(e) to promote social intercourse between members;
(f) to consider and deal with all matters affecting the professional interests of legal
practitioners;
(g) to encourage and promote the study of law and jurisprudence and to provide means
of securing efficiency and responsibility on the part of those seeking registration;
(h) to establish, support and maintain law libraries and reading rooms and to print, pub-
lish and circulate books and periodicals on law and legal subjects where deemed
necessary or desirable;
(i) to make recommendations in relation to training;
(j) to acquire any rights or privileges which the Society may regard as necessary or
convenient for the legal profession;

93
 (k) to establish and support or aid in the establishment and support of associations,
funds, trusts, pensions or provident schemes to benefit members or former members
or their dependants and to grant pensions and allowances to any member or former
member or his dependants;
(l) to make charitable donations and to make grants in aid of objects which would ben-
efit the legal profession;
(m) to consider and discuss and to confer with other bodies on alterations and reforms in
the practice, procedure and administration of the law and to propose, promote or op-
pose legislation in Parliament;
(n) to purchase, hire or otherwise acquire movable or immovable property and to erect
buildings for the purpose of the Society;
(o) to raise or borrow money in such manner as the Society may think fit;
(p) to sell, lease, mortgage, improve or otherwise deal with all or any of the property of
the Society;
(q) to invest the funds of the Society which are not immediately required upon such se-
curity as may from time to time be determined;
(r) to employ the funds of the Society in obtaining or assisting any person to obtain a
judicial order, ruling or judgment on a doubtful or disputed point of law where the
Council of the Society deems it necessary or desirable in the interests of the public
or the legal profession;
(s) to do all such acts and things as are incidental or conducive to the attainment of the
above-mentioned objects.
54 Constitution of Council of the Society
(1) The Society shall have a council which shall consist of—
(a) nine elected councillors who shall be elected by the Society from its members in the
manner prescribed in by-laws;
(b) two appointed councillors who shall be persons who are appointed by the Minister:
Provided that, with the approval of the Minister, the Council of the Society may co-opt to
the Council not more than two further registered legal practitioners, who need not be mem-
bers of the Society.
(2) As soon after the election of the elected councillors as it is practicable to do so, the
Council shall elect from the councillors a president and vice-president who shall hold office,
as such, until the close of the next annual general meeting at which an election of councillors
takes place.
(3) A councillor who—
(a) is elected shall hold office until the close of the third annual general meeting after
the annual general meeting at which his election was declared:
Provided that he shall cease to hold office as a councillor if—
(a) he ceases to be a member of the Society; or
(b) a resolution to that effect is passed at a general meeting of the Society;
(b) is co-opted shall hold office until the close of the first annual general meeting after
his co-option;
(c) is appointed shall hold office during the pleasure of the person appointing him;
and, after the termination of his office, he shall be eligible for re-election, re-appointment or
further co-option, as the case may be:

94
 Provided that, if for any reason the successors to the existing president, vice-president
and elected councillors have not been duly elected, those persons shall continue in their offic-
es until the election of their successors.
55 Management and control of Society by Council of the Society
(1) The management and control of the Society shall be vested in the Council of the So-
ciety which may exercise all such powers and do all such things as may be exercised or done
by the Society save those which are expressly directed or required by this Act or by by-laws
made thereunder to be exercised or done by the Society in general meeting.
(2) The Society, the Council of the Society and any councillor, officer or agent thereof
shall not be liable for any loss, injury or damage sustained by a person as a result of the bona
fide exercise or performance by the Society, the Council of the Society or a councillor, officer
or agent thereof of a power or duty conferred or imposed upon the Society or the Council of
the Society by this Act:
Provided that this section shall not be construed so as to prevent a person from recovering
by action in a competent court compensation for any loss, injury or damage sustained by him
which was caused by negligence or breach of contract.
56 Absence of councillor from Zimbabwe or failure to attend meetings of
Council of the Society
Where without special leave of the Council of the Society any elected councillor is absent
from Zimbabwe for a continuous period of six months or has failed to attend four consecutive
meetings of the Council of the Society, the Council of the Society shall declare his seat to be
vacant.
57 Casual vacancies
Any casual vacancy in the office of president or vice-president or councillor shall be
filled at as early a date as is practicable.
58 Casual vacancy not to invalidate acts of Council of the Society
Subject to by-laws respecting a quorum at Council meetings, a casual vacancy in the
Council shall not invalidate any act or deed of the Council of the Society.
59 Representative of councillor to attend meetings of Council of the Society
(1) Any councillor shall be entitled to nominate in writing any member of the Society as
his representative at any meeting or meetings of the Council of the Society at which such
councillor cannot conveniently be present.
(2) The duly appointed representative of a councillor shall, when such councillor is ab-
sent, be entitled to attend, speak and vote as a councillor at any meeting for which he is ap-
pointed.
(3) The attendance of any such representative at any meeting of the Council of the So-
ciety shall be reckoned, for the purposes of section fifty-six, as the attendance of the member
whom he represents.
60 Annual general meetings
(1) Once in each calendar year there shall be held a general meeting of members, to be
called the annual general meeting.
(2) Subject to by-laws, the place, date and hour of the annual general meeting shall be
fixed by resolution of the Council of the Society.
(3) At least twenty-one days prior to the date fixed for the annual general meeting, writ-
ten notice thereof shall be sent to each member of the Society.
(4) The business to be transacted at the annual general meeting shall include—

95
 (a) the election in respect of the ensuing year of the elected councillors or, if the elec-
tion has taken place prior to the meeting, a declaration of the result of such election;
and
(b) the election of an auditor; and
(c) the consideration of any business of which due notice has been given in accordance
with by-laws.
61 Special general meetings
A special general meeting of members shall be held when convoked—
(a) by a majority of councillors; or
(b) by the president; or
(c) by the secretary of the Society in response to a requisition for such meeting signed
by not less than twelve members of the Society.
62 Quorum at general meetings
Subject to section seventy-two, unless otherwise provided by by-laws, the quorum neces-
sary for the transaction of the business of any annual or special general meeting shall be ten
members personally present.
63 Society may make by-laws
(1) By-laws may be adopted by a majority of members present personally or by proxy
at a general meeting of the Society.
(2) By-laws may be made in terms of subsection (1) for any or all of the following pur-
poses—
(a) providing for general meetings of members, the quorum necessary for the transac-
tion of business and the conduct and place of meetings, and providing for voting by
a show of hands and by ballot and by proxy;
(b) subject to section seventy-two, providing for meetings of the Council of the Society,
the quorum necessary for the transaction of its business, the conduct of and voting at
meetings thereof and the method of appointment of members to represent absent
councillors;
(c) allocating a defined number of seats on the Council of the Society to particular areas
or towns;
(d) providing for and prescribing the procedure to be adopted in, the election of council-
lors, members of the Board of Trustees and of the president and vice-president and
of an auditor or auditors;
(e) providing for an annual subscription to be paid by members and fixing the amount
thereof and the date when it shall become due;
(f) specifying the powers and duties of the president, vice-president, secretary, treasurer
and other officers of the Society and of the Council of the Society;
(g) prescribing the registers and other records to be kept;
(h) specifying the circumstances in which payments may be made to the secretary and
other officers of the Society and to councillors and the representatives of councillors
for travelling and other expenses and for the performance of special work on behalf
of the Society;
(i) prescribing the procedure to be followed and the requirements to be satisfied by any
member who wishes to obtain the recommendation of the Society for his appoint-
ment as senior counsel;
(j) making provision for, and prescribing the method of, the investigation of complaints
against legal practitioners;

96
 (k) defining acts or omissions which constitute unprofessional, dishonourable or unwor-
thy conduct on the part of legal practitioners;
(l) fixing a tariff of charges and commissions or minimum or maximum charges and
commissions for services rendered by legal practitioners in matters not provided for
by the rules of the Supreme Court, High Court or of magistrates courts:
Provided that no by-laws made in terms of this paragraph shall prohibit any
registered legal practitioner from acting in any proper case or matter without making
any charge therefor;
(m) providing for the appointment of a secretary, librarian and other officers and to fix
their remuneration;
(n) providing the place where the records, books and documents of the Society shall be
kept and where the office of the Society shall be situated;
(o) providing for the Council of the Society to decide and act as it may think proper in
matters not provided for by the by-laws and to make rules respecting the use by
members and other persons of the property of the Society;
(p) the appointment of honorary members;
(q) the requirement by legal practitioners to notify the Society or any officer thereof of
particulars of their names and addresses and those of their partners and of any
change in such particulars;
(r) the imposition by the Council of the Society of a penalty, which shall be recoverable
by the Council of the Society and which shall not exceed an amount equivalent to a
fine of level one for each week of default, for failing to notify any particulars re-
quired in terms of by-laws made in terms of paragraph (q);
[Paragraph as amended by section 4 of Act No. 22 of 2001]
(s) providing for the form, issue and withdrawal of practising certificates, including the
contributions payable to the Society by persons applying for the issue or renewal of
practising certificates;
(t) prescribing the matters in respect of which an auditor shall be satisfied before issu-
ing an audit certificate for the purpose of section eighty-one;
(u) providing generally for the furtherance of the objects and powers of the Society as
stated in section fifty-three, including suitable allocations of the funds of the Society
for that purpose.
(3) By-laws made in terms of subsection (1) shall not have effect until they have been
approved by the Minister and published in a statutory instrument.
PART VIII
LAW SOCIETY COMPENSATION FUND
64 Law Society Compensation Fund
The Law Society Compensation Fund established in terms of section 3 of the Law Socie-
ty Compensation Fund Act [Chapter 222 of 1974] shall, on and after the fixed date, continue
in existence and shall be vested in and administered by the Board of Trustees in accordance
with this Act.
65 Assets of Compensation Fund
The Compensation Fund shall consist of—
(a) all contributions paid to the Compensation Fund in terms of section seventy-four;
(b) income from the investments of the Compensation Fund; and
(c) all moneys borrowed on behalf of the Compensation Fund in terms of section sixty-
nine;

97
 (d) all moneys received by the Compensation Fund under any insurance effected on
behalf of the Fund in terms of section sixty-nine;
(e) any other moneys which may vest in or accrue to the Compensation Fund, whether
in terms of this Act or otherwise.
66 Expenditure from Compensation Fund
(1) There shall be paid from the Compensation Fund—
(a) any costs, charges and expenses incurred by the Board of Trustees in establishing,
maintaining, administering and applying the Compensation Fund;
(b) any grants made in terms of section seventy;
(c) any costs, charges and expenses incurred by the Council of the Society in any in-
quiry in terms of section seventy;
(d) any reimbursements made in terms of subsection (2); and
(e) any refund of contributions made in terms of subsection (3);
(f) any premiums on insurance effected on behalf of the Compensation Fund;
(g) any sums required for the repayment of any moneys borrowed by the Compensation
Fund and payment of any interest thereon;
(h) such other sums as may be prescribed in rules made in terms of section seventy-
three.
(2) Where the Society has incurred any costs, charges or expenses through the investi-
gation or audit by the Council of the Society of the books of account of a legal practitioner,
the Council of the Society may direct the Board of Trustees to make a payment out of the
Compensation Fund for the purpose of reimbursing the Society either wholly or in part, and
the Board of Trustees shall comply with that direction.
(3) The Council of the Society may direct the Board of Trustees to refund to any legal
practitioner or his estate the whole or part of his contributions to the Compensation Fund, and
the Board of Trustees shall comply with any such direction.
67 Audit of Compensation Fund
The accounts of the Compensation Fund shall be audited at least once in every year by an
auditor, registered as a public auditor, in terms of the Public Accountants and Auditors Act
[Chapter 27:12] who shall be appointed by the Board of Trustees with the approval of the
Minister.
68 Law Society Compensation Fund Trustees
(1) The Board of Trustees known as the Law Society Compensation Fund Trustees es-
tablished by section 3 of the Law Society Compensation Fund Act [Chapter 222 of 1974]
shall, on and after the fixed date, continue in existence as a body corporate under the same
name, capable of suing and being sued in its corporate name and, subject to the provisions of
this Act, of performing all such acts as a body corporate may by law perform.
(2) The Board of Trustees shall consist of three members who shall be elected annually
by the Society in general meeting from among those members of the Society who are not
members of the Council of the Society.
(3) At the conclusion of his term of office a member of the Board of Trustees shall be
eligible for re-election.
(4) The office of a member of the Board of Trustees shall become vacant if—
(a) he dies; or
(b) he resigns by notice in writing to the president of the Society; or
(c) his estate is sequestrated or assigned in terms of any law relating to insolvency; or
(d) he ceases for any reason to be a registered legal practitioner; or

98
 (e) as a result of his being convicted of any offence the Council of the Society notifies
him in writing that he has ceased to be a member of the Board of Trustees; or
(f) he has, in the opinion of the Council of the Society, become mentally or physically
incapable of efficiently performing his duties and the Council of the Society notifies
him in writing that he has ceased to be a member of the Board of Trustees.
(5) If the office of a member of the Board of Trustees has become vacant in terms of
subsection (4), the Council of the Society may appoint a suitable person to fill such vacancy
until the expiration of the period during which such member would, but for the vacation of his
office, have continued in office.
69 Functions and powers of Board of Trustees
(1) The Board of Trustees shall, subject to this Act and of any rules made in terms of
section seventy-three or by-laws, administer the Compensation Fund.
(2) The Board of Trustees may enter into any contract with any person or company car-
rying on insurance business whereby the Compensation Fund will be indemnified to the ex-
tent and in the manner provided by such contract, against the making of grants in terms of this
Act.
(3) The Board of Trustees may invest, in such securities as may be prescribed in rules
made in terms of section seventy-three, any moneys in the Compensation Fund which are not
immediately required for the purposes of the Compensation Fund.
(4) The Board of Trustees may borrow moneys for the purposes of the Compensation
Fund and may charge any investments of the Compensation Fund by way of security for any
such loan:
Provided that the aggregate sum owing at any one time in respect of such loans shall not
exceed such limit as shall be prescribed in rules.
70 Compensation for loss through dishonesty of registered legal practitioner
(1) Where it is proved to the satisfaction of the Council of the Society that any person
has sustained loss in consequence of theft, fraud, forgery or other dishonesty committed by a
registered legal practitioner or by an employee of a registered legal practitioner in connection
with—
(a) the practice by that legal practitioner of his profession; or
(b) any money or property entrusted to that legal practitioner or his employee in the
course of his practice as a legal practitioner or whilst he is acting as executor or ad-
ministrator in the estate of a deceased person or as trustee in an insolvent estate or in
a similar capacity;
the Council of the Society may, subject to this Act, direct the Board of Trustees to make a
grant to that person out of the Compensation Fund for the purpose of relieving or mitigating
that loss, and the Board of Trustees shall comply with that direction.
(2) Before considering an application for a grant in terms of this section the Council of
the Society may require the applicant to exhaust all legal remedies available to him in respect
of the loss to which the application relates.
(3) A grant may be made in terms of this section whether or not the legal practitioner
concerned was in possession of a valid practising certificate when the theft, fraud, forgery or
other dishonesty which gave rise to the loss was committed, and notwithstanding that subse-
quently to the commission of the theft, fraud, forgery or other dishonesty the legal practitioner
concerned has died or ceased to practise or has been suspended from practice or his name has
been deleted from the Register.
(4) No grant shall be made in terms of this section in respect of any loss unless notice of
the loss is given by the person who sustained it in such manner and within such time after the

99
loss first came to his knowledge as may be prescribed in rules made in terms of section seven-
ty-three.
(5) In inquiring into any allegation of theft, fraud, forgery or other dishonesty that is the
subject of an application for a grant in terms of this section, the Council of the Society shall
have the same powers and privileges as are conferred upon commissioners by the Commis-
sions of Inquiry Act [Chapter 10:07], and sections 10 to 14 and 16 to 18 of that Act shall ap-
ply, mutatis mutandis, in respect of any such inquiry.
(6) Any person subpoenaed to give evidence or to produce books, plans or documents at
any inquiry held by the Council of the Society for the purposes of this section shall, if the
Council of the Society so allows, be entitled to witness expenses as if he had been subpoenaed
to attend at a magistrates court at a criminal trial, but the Council of the Society may in its
discretion disallow the whole or any part of such expenses.
(7) The Council of the Society may direct the Board of Trustees to pay out of the Com-
pensation Fund any costs, charges and expenses incurred by the Council of the Society in an
inquiry under this section, and the Board of Trustees shall comply with that direction.
71 Subrogation of Board of Trustees
(1) On the making of any grant in terms of section seventy to any person in respect of
any loss—
(a) the Board of Trustees shall, to the amount of that grant, be subrogated to any rights
and remedies in respect of that loss which are vested in or available to—
(i) the person to whom the grant is made; or
(ii) the legal practitioner or employee whose theft, fraud, forgery or other dishon-
esty gave rise to the loss;
(b) the person to whom the grant is made shall have no right under insolvency, other
legal proceedings or otherwise to receive any sum in respect of the loss out of the
assets of the legal practitioner or employee whose theft, fraud, forgery or other dis-
honesty gave rise to the loss until the Board of Trustees has been reimbursed the full
amount of the grant.
(2) In subsection (1), any reference to the person to whom the grant is made or the legal
practitioner or employee shall include, in the event of his death, insolvency or other disability,
a reference to his personal representative or any other person who has authority to administer
his estate.
72 Quorum of Council and Society in respect of business of Compensation
Fund
For the transaction of any business in relation to the Compensation Fund, the quorum at a
meeting of—
(a) the Society, shall be ten members;
(b) the Council of the Society, shall be three members.
73 Rules
(1) The Board of Trustees may, with the approval of the Society in general meeting,
make rules—
(a) prescribing the procedure of meetings of the Board of Trustees;
(b) providing for the payment to members of the Board of Trustees of reasonable travel-
ling and subsistence expenses incurred in attending to the business of the Board of
Trustees;
(c) providing for the employment by the Board of Trustees of such persons as may be
necessary for the proper administration of the Compensation Fund, and fixing their
remuneration and conditions of service;

100
 (d) prescribing the forms to be used and the procedure to be adopted in applications for
and payments of grants under section seventy;
(e) prescribing such matters as are under this Act required or permitted to be prescribed
in such rules;
(f) generally for the proper administration of the Compensation Fund and all matters
incidental thereto.
(2) Rules made in terms of subsection (1) shall not have effect until they have been ap-
proved by the Minister and published in a statutory instrument.
PART IX
PRACTISING CERTIFICATES
74 Applications for practising certificates
(1) A person who wishes to obtain or renew a practising certificate shall apply to the
secretary of the Society in the form and manner prescribed in by-laws.
(2) An applicant for a practising certificate, other than a limited practising certificate,
shall submit with his application—
(a) such contribution to the Compensation Fund as may be prescribed in rules made in
terms of section seventy-three; and
(b) such contribution to the Society as may be prescribed in by-laws; and
(c) such certificates, documents and information as may be prescribed in by-laws or as
the Secretary of the Society may reasonably require;
(d) such proof as the Secretary of the Society may reasonably require that the applicant
has paid any levy due from him under the Legal Aid Act, 1996 (No. 18 of 1996).
[Paragraph inserted by sec 12 of Act No. 10 of 2000]
(3) An applicant for a limited practising certificate shall submit with his application
such contribution to the Society as may be prescribed in by-laws, together with such certifi-
cates, documents and information as the secretary of the Society may reasonably require.
75 Issue, renewal and refusal of practising certificates
(1) On receipt of an application in terms of section seventy-four for the issue or renewal
of a practising certificate, other than a limited practising certificate, the secretary of the Socie-
ty—
(a) shall issue or, as the case may be, renew the practising certificate, if he is satisfied
that—
(i) the applicant is a registered legal practitioner who will be entitled to practise
as such if the practising certificate is issued or, as the case may be, renewed;
and
(ii) the contributions referred to in paragraphs (a) and (b) of subsection (2) of sec-
tion seventy-four have been submitted together with the application; and
(iia) the applicant has paid any levy due from him under the Legal Aid Act, 1996
(No. 18 of 1996); and
[Paragraph inserted by sec 12 of Act No. 10 of 2000]
(iii) where appropriate, the applicant has submitted an audit certificate to the sec-
retary of the Society in terms of section eighty-one;
(b) shall refer the application to the Council of the Society if he is not satisfied as to the
matters referred to in paragraph (a).
(2) Where an application has been referred to it in terms of paragraph (b) of subsection
(1), the Council of the Society, after making such inquiry into the matter as it considers neces-
sary—

101
 (a) shall direct the secretary of the Society to issue or, as the case may be, renew the
practising certificate concerned, if it is satisfied as to the matters referred to in para-
graph (a) of subsection (1); and
[Paragraph as amended by sec 13 of Act No. 10 of 2000]
(b) shall refuse to issue or, as the case may be, to renew the practising certificate con-
cerned, if it is not satisfied as to the matters referred to in paragraph (a), and shall di-
rect the secretary of the Society to advise the applicant accordingly.
(3) On receipt of an application in terms of section seventy-four for the issue or renewal
of a limited practising certificate, the secretary of the Society shall refer the application to the
Council of the Society.
(4) Where an application for the issue or renewal of a limited practising certificate has
been referred to it in terms of subsection (3), the Council of the Society, after making such
inquiry into the matter as it considers necessary—
(a) may direct the secretary of the Society to issue or, as the case may, to renew the lim-
ited practising certificate concerned, if it is satisfied that—
(i) the applicant is a registered legal practitioner; and
(ii) the contribution referred to in subsection (3) of section seventy-four has been
submitted together with the application; and
(iii) no fees will be raised or charged by the applicant or any other person in re-
spect of the applicant‘s practice as a legal practitioner;
and
(b) shall refuse to issue or, as the case may be, to renew the limited practising certificate
concerned, if it is not satisfied as to the matters referred to in paragraph (a), and
shall direct the secretary of the Society to advise the applicant accordingly.
76 Period of validity of practising certificates
(1) Subject to subsection (2), a practising certificate shall be valid—
(a) for the period of twelve months from the 1st January next following the application
therefor; or
(b) if the applicant so requires, from the date of its issue until the 31st December of the
year in which it is issued.
(2) A practising certificate issued to a legal practitioner—
(a) whose name is deleted from the Register; or
(b) who is suspended from practice in terms of section twenty-eight or thirty;
shall cease to be valid from the date of such deletion or suspension, and the legal practitioner
or former legal practitioner concerned shall forthwith return the practising certificate to the
secretary of the Society for destruction.
77 Terms and conditions of practising certificates
(1) A limited practising certificate shall be subject to such. terms and conditions as the
Council of the Society may impose in each particular case, which terms and conditions the
Council of the Society shall cause to be endorsed on the certificate.
(2) Where in terms of section twenty-eight conditions are imposed upon a legal practi-
tioner‘s entitlement to practise—
(a) the legal practitioner shall forthwith return any practising certificate held by him to
the secretary of the Society, who shall endorse the conditions on the certificate; and
(b) the secretary of the Society shall endorse the conditions on any further practising
certificate issued to the legal practitioner in respect of any period during which the
conditions are operative.

102
 (3) Terms and conditions may be endorsed on a practising certificate in terms of this
section in such abbreviated form as the Council of the Society may approve.
78 Withdrawal of practising certificate
(1) If, after due inquiry, the Council of the Society is satisfied that a legal practitioner
has not complied with any term or condition of a practising certificate held by him, the Coun-
cil of the Society may withdraw the practising certificate and, if it does so, shall direct the
secretary of the Society to advise the legal practitioner accordingly.
(2) A legal practitioner whose practising certificate has been withdrawn in terms of sub-
section (1) shall, upon being advised of the withdrawal, forthwith return the practising certifi-
cate to the secretary of the Society for destruction.
79 Appeals from decisions of Council of the Society re practising certificates
(1) Any person who is aggrieved at any decision of the Council of the Society in terms
of this Part may, within thirty days after being advised of the decision, appeal to the Supreme
Court in such manner as may be prescribed by rules of court made in terms of the Supreme
Court Act [Chapter 7:13].
(2) On an appeal in terms of subsection (1), the Supreme Court may—
(a) confirm, vary or set aside the decision appealed against; or
(b) remit the matter to the Council of the Society for further consideration,
and may make such other order as to costs or otherwise as it thinks just.
(3) The noting of an appeal in terms of subsection (1) against a decision of the Council
of the Society in terms of section seventy-eight to withdraw a practising certificate shall not
suspend the decision appealed against, unless—
(a) the Council of the Society, by written notice to the legal practitioner concerned,
agrees otherwise; or
(b) the Supreme Court on application directs otherwise;
in which event the Council of the Society shall return the practising certificate to the appellant
pending the outcome of the appeal.
PART X
GENERAL
80 Existing practitioners to be registered as notaries public and conveyancers
The Registrar shall enter in the Register as a notary public and conveyancer the name of
every person who, immediately before the 30th December, 1991, was registered as a legal
practitioner and, on and after that date, every such person shall be deemed, for so long as his
name remains so entered, to have been duly registered as a notary public and conveyancer in
terms of this Act.
81 Audit certificates
(1) A person who—
(a) is practising as a legal practitioner, whether on his own account or in partnership or
association with any other person; and
(b) is required by section thirteen to keep a trust account;
shall submit to the secretary of the Society, at such time or times as may be prescribed in by-
laws, an audit certificate in the form prescribed in by-laws and issued by a person who is reg-
istered as a public auditor in terms of the Public Accountants and Auditors Act [Chapter
27:12].
(2) A person who intends to practise as provided in subsection (1) shall, before com-
mencing in such practice, submit to the secretary of the Society an audit certificate in the form

103
prescribed in by-laws and issued by a person who is registered as a public auditor in terms of
the Public Accountants and Auditors Act [27:12].
82 Right of State and certain parastatal employees to appear in court
(1) Notwithstanding anything to the contrary in this Act, any person who is in the em-
ployment of the State may appear in any court on behalf of the State.
(2) Notwithstanding anything to the contrary in this Act, any person who is in the em-
ployment of the Zimbabwe Revenue Authority, established by section 3 of the Revenue Au-
thority Act [Chapter 23:11] (No. 17 of 1999), and who performs services for the Zimbabwe
Revenue Authority as a legal practitioner, may appear before—
(a) the Fiscal Appeal Court established in terms of section 3 of the Fiscal Appeal Court
Act [Chapter 23:05]; or
(b) the Special Court for Income Tax Appeals established in terms of section 64 of the
Income Tax Act [Chapter 23:06];
(c) any other court in any civil and (if authorised by the Attorney-General under section
6 of the Criminal Procedure and Evidence Act [Chapter 9:07]) criminal proceedings
to which the Authority is a party or that involve any of the Acts specified in the First
Schedule to the Revenue Authority Act [Chapter 23:11] (No. 17 of 1999);
[Paragraph inserted by section 32 of Act No. 9 of 2006]
and shall have the same rights and privileges as are specified in paragraphs (a), (b) and (c) of
subsection (1) of section eighty-five for persons performing services for the State as a legal
practitioner.
83 Non-recovery of fee
No fee in respect of anything done in contravention of any provision of this Act shall be
recovered in any action or proceeding by the person who has acted in contravention of such
provision.
84 Evidence
(1) In any criminal proceedings against any person upon a charge of having performed
any act which constitutes an offence under this Act if performed by a person who is not regis-
tered. the person charged shall be deemed to be not registered until the contrary is proved.
(2) A certificate under the hand of the Registrar—
(a) of the entry of the name of a person in the Register shall be prima facie evidence on
its production by any person that the person is registered in the Register as a legal
practitioner, notary public or conveyancer, as may be stated in the certificate;
(b) that the name of a person has been deleted from or does not appear in the Register,
shall be prima facie evidence on its production by any person that the person is not
registered in the Register;
(c) that a registered person has been suspended from practice as such for a period speci-
fied in that certificate shall be prima facie evidence on its production by any person
that the person concerned has been suspended from such practice for that period.
85 Special provisions relating to legal practitioners employed by State
(1) Notwithstanding any law, including any practice or custom, to the contrary, a person
who is employed by the State and who performs services for the State as a legal practitioner
may, in respect of such employment—
(a) receive any salary, allowances or other benefits to which he is entitled in terms of
the law relating to his appointment;
(b) exercise any rights and privileges which a registered legal practitioner in private
practice may exercise;

104
 (c) recover on behalf of the State, for the benefit of the Consolidated Revenue Fund,
any costs and fees in respect of any proceedings or other legal work which a regis-
tered legal practitioner in private practice would be entitled to recover;
(d) exercise his functions in any court or at any place even though he does not have a
fixed office or branch at the place at which such court sits or at such place, as the
case may be;
(e) instruct or employ any other registered legal practitioner as an agent or correspond-
ent in the same way as a registered legal practitioner in private practice may do so
and may receive and recover on behalf of the State, for the benefit of the Consoli-
dated Revenue Fund, any fees and allowances from any such agent or correspondent
which a registered legal practitioner in private practice would be entitled to receive
and recover.
(2) For the purposes of subsection (1), the services referred to therein shall be deemed
to include services—
(a) which are performed in, or in connection with, any matter in which the State, though
not a party, is interested or connected; and
(b) which the Minister has authorized to be performed, whether before, at the time of, or
after the performance thereof.
86 Oaths of loyalty and of office
A person who applies for registration as a legal practitioner shall, before being registered,
take the oaths of loyalty and of office specified in Schedule 1 to the Constitution.
87 Regulatory power
(1) The Minister may, after consultation with the Chief Justice and the president of the
Society, make regulations prescribing anything which in terms of this Act is to be prescribed
by regulation or which, in his opinion, is necessary or convenient to be prescribed for carrying
out or giving effect to this Act.
(2) Regulations made in terms of subsection (1) may provide for—
(a) fees which shall be payable in connection with registration;
(b) …
[Paragraph repealed by sec 5 of Act No. 11 of 1996, as modified by SI 135/96.]
(c) specifying the conditions subject to which legal practitioners normally resident in a
reciprocating country may be registered and the conditions subject to which any
such legal practitioners, once registered, may practise as such in Zimbabwe;
(d) the issue of duplicate or corrected certificates of registration,
(e) the form of the Register and the circumstances in which it may be inspected by
members of the public;
(f) requiring notaries public to keep protocols and registers of specified transactions
and documents, the inspection thereof and the disposal and custody thereof in the
event of death, retirement, suspension or removal from the Register of the notary
public concerned;
(g) removing or restricting the right of audience before any court of legal practitioners
who fail or refuse to make themselves available for engagement in terms of section
12 of the Legal Aid Act, 1996, when required to do so by or under regulations made
in terms of that Act;
[Paragraph as substituted by sec 26 of Act No. 18 of 1996]
(g1) contingency fee arrangements;
[Paragraph inserted by sec 14 of Act No. 10 of 2000]
(h) penalties for contraventions of the regulations:

105
 Provided that no such penalty shall exceed a fine of level five or imprisonment
for a period of six months or both such fine and such imprisonment.
[Paragraph as substituted by section 4 of Act No. 22 of 2001]

106
 APPENDIX 2: LAW SOCIETY OF ZIMBABWE BY-LAWS (EXTRACTS)

The Law Society of Zimbabwe By-laws, 1982, were published in SI 314 of 1982
and have been amended by:
Statutory Instruments 191/1986, 24/1990, 155/1990, 461/1992, 209/2003 and
2/2005

ARRANGEMENT OF BY-LAWS
By-law
1. Title.
PART I
INTERPRETATION
2. Definitions.
3. Rules for Interpretation.
…
PART VII
LEGAL PRACTITIONERS
56. Register of legal practitioners to be kept.
57. Particulars of register.
58. Particulars to be provided by legal practitioners.
59. Penalties for failure to comply with by-law 58.
PART VIII
COMPLAINTS AND INVESTIGATIONS
60. Composition of disciplinary committee.
61. Complaints.
62. Action by disciplinary committee.
63. Action by Council.
64. Disqualification of councillors.
65. Powers of Council where its communications are ignored.
66. Legal assistant‘s employer to be informed of any complaint or investigation.
67. Council‘s right to apply for Disciplinary Tribunal inquiry without investigation.
67A. Duty of legal practitioners to notify Secretary of special orders of costs made against
them.
PART IX
CHARGES AND COMMISSIONS FOR PROFESSIONAL SERVICES
68. Charges to be fair and reasonable.
69. Tariffs.
70. Commission on collection of debts.
PART IXA
BOOKKEEPING
70A. Interpretation in Part IXA.
70B. Monthly trust account balances.
70C. Balancing of books of account.
70D. Notification to Council of details re trust accounts.
70E. Accounting to clients.
70F. Deposits into and payments from trust accounts to be made promptly.
70G. Fees and disbursements to be debited promptly.
70H. Trust cheques.

107
 70I. Trust shortfalls.
70J. Transfers from trust to other accounts.
PART IXB
PRACTISING CERTIFICATES
71A. Applications for practising certificates.
71B. Contributions.
71C. Audit certificate.
71D. Form of practising certificates.
PART X
MISCELLANEOUS
71. Office of the Society.
72. Staff.
73. Legal proceedings.
74. Use of Society‘s property.
75. Power of Council to investigate a contravention of section 23(1)(i) of the Act.
76. Notices.
77. Interest on trust money.
78. Repeals (omitted)
FIRST SCHEDULE: Forms.
SECOND SCHEDULE: Repeals (Omitted)

IT is hereby notified that the Minister of Justice has, in terms of section 47 of the Legal
Practitioners Act, 1981215, approved the following by-laws adopted by a majority of members
present at a general meeting of the Law Society of Zimbabwe:–

Title
1. These by-laws may be cited as the Law Society of Zimbabwe By-laws, 1982.
PART I
INTERPRETATION

Definitions
2. In these by-laws—
―auditor‖ means a person or firm appointed by the Society to act as its auditors for the
time being, and includes any qualified representative of that person or firm;
―Compensation Fund‖ means the Law Society Compensation Fund referred to in section
48 of the Act216;
―firm‘s auditor‖ means an accountant registered in terms of the Accountants Act [Chapter
215]217 and engaged by a legal practitioner to provide an audit certificate referred to in
section 71C;
[Definition inserted by by-law 2 of SI 24/1990]
―form‖ means the appropriate form set out in the First Schedule;
―legal assistant‖ means an articled clerk as defined in section 2 of the repealed Attorneys,

215
Now section 63 of the Legal Practitioners Act [Chapter 27:07].
216
Now section 64 of the Legal Practitioners Act [Chapter 27:07].
217
This should be construed as a reference to a public auditor registered in terms of the Public Ac-
countants and Auditors Act [Chapter 27:12]: see section 81 of the Legal Practitioners Act [Chapter
27:07].

108
 Notaries and Conveyancers Act [Chapter 218] or [a] person who is undergoing, or has
undergone, any practical training prescribed as a qualification for registration as a le-
gal practitioner, but who has not yet been registered as a legal practitioner;
―legal practitioner‖ means a person duly registered in terms of the Act;
―president‖ means the president for the time being of the Society, and includes any deputy
or person temporarily fulfilling the duties of that office;
―private practice‖ means the practice of law by a legal practitioner on his own account or
in partnership with one or more legal practitioners or in the employ of a legal practi-
tioner in private practice;
―Secretary‖ means the secretary or any assistant secretary for the time being of the Socie-
ty, and includes any deputy or person temporarily fulfilling the duties of that office;
―vice-president‖ means the vice-president for the time being of the Society, and includes
any deputy or person temporarily fulfilling the duties of that office.

Rules for interpretation

3. ( 1) In case of doubt as to the meaning of any of these by-laws, the interpretation of the
Council shall be binding on all legal practitioners.
(2) The Council may decide and act as it may think proper in any matter not provided for
in these by-laws.
(3) Where any duties are placed upon the president in terms of these by-laws, in the
event of his absence or incapacity to act, the same shall be discharged by the vice-president
or, should he also be absent or unable to act, by a councillor appointed by the Council.
…
PART VII
LEGAL PRACTITIONERS

Register of legal practitioners to be kept

56. A register of legal practitioners218, in such form as may be determined by the Coun-
cil, shall be kept by the Secretary at the office of the Society, in which shall be maintained, in
the first part thereof, the hereinafter prescribed particulars of legal practitioners who are
members of the Society, and, in the second part thereof, the hereinafter prescribed particulars
of all legal practitioners who are not members of the Society.

Particulars of register
57. ( 1) The Secretary shall enter and maintain in the register, kept in terms of by-law 56,
in respect of each legal practitioner—
(a) his full name and any changes thereof; and
(b) the firm name under which he practises, whether on his own account or in partner-
ship, or by whom he is employed, and its address and any changes in respect of the
firm or his employment; and
(c) the names of his partners, if any, and any changes therein; and
(d) his business address, if not in private practice, and any changes thereof; and
(e) the date of his registration as a legal practitioner; and
(f) the date and circumstances under which he may have ceased to practise, or may
have been suspended from practice, or otherwise disciplined by the Disciplinary

218
Note that this is not the same as the Register of Legal Practitioners kept by the Registrar of the High
Court in terms of section 3 of the Act.

109
 Tribunal (with the particulars thereof), or may have had his name deleted from the
Register kept in terms of section 3 of the Act; and
(g) the date upon which, and circumstances under which, he has been admonished or
otherwise dealt with by the Council in terms of paragraph (b) of sub-by-law (4) of
by-law 63; and
(h) the date upon which, and circumstances under which, he may have resumed prac-
tice, or may have had his name restored to the Register kept in terms of section 3 of
the Act; and
(i) such further particulars as the Council may from time to time consider necessary.
(2) In respect of members of the Society, the Secretary shall further enter and maintain in
the register in respect of each member—
(a) the date of his admission as a member; and
(b) the date upon and circumstances under which he may have ceased to be a member;
and
(c) the date upon which, and circumstances under which, he may have been readmitted
to membership; and
(d) the subscription, and any changes in the amount thereof, payable by him from time
to time, and the date upon which each subscription or change in the amount thereof
for which he is liable is paid.

Particulars to be provided by legal practitioners

58. ( 1) Every person registered as a legal practitioner shall, within twenty-one days from
the date of registration—
(a) lodge with the Secretary a certified copy of the original certificate of registration
issued in terms of subsection (3) of section 3 of the Act; and
(b) furnish to the Secretary the particulars specified in by-law 57 as may be relevant.
(2) Every legal practitioner shall, within twenty-one days of the event, notify the Secre-
tary—
(a) of any changes in the particulars previously furnished to the Secretary as required by
this by-law; and
(b) when he ceases to practise or, having ceased to practise, when he resumes practice,
of the date and circumstances thereof.
(3) Every legal practitioner, if requested by the Secretary, shall furnish, within twenty-
one days of the date of such request, such information and produce such documents as may be
required for the purpose of completing, amending or updating the register prescribed in by-
law 56.

Penalties for failure to comply with by-law 58

59. In the event of any practitioner failing to comply with any provision of by-law 58
within the time-limits prescribed, he shall be liable to pay a penalty of ten dollars for each
week in which he remains in default, and proceedings for recovery may be taken by the
Council. All penalties recovered shall form part of the funds of the Society.
PART VIII
COMPLAINTS AND INVESTIGATIONS

Composition of disciplinary committee

60. ( 1) There shall be a standing committee of the Council, to be known as the ―discipli-
nary committee‖, consisting of three councillors appointed from time to time by the Council.

110
 (2) It shall be the duty of the disciplinary committee to take such action in terms of this
Part as may seem to it to be proper if it has reason to suspect that a legal practitioner or legal
assistant may have been guilty of conduct described in section 23 or in subsections (1) or (2)
of section 28 of the Act (hereinafter, in this Part, called ―unprofessional conduct‖).
(3) Two members of the disciplinary committee shall form a quorum.

Complaints
61. ( 1) A complaint against a legal practitioner or legal assistant shall be submitted to the
Secretary, who may—
(a) require the complaint to be reduced to writing by the complainant;
(b) require the complainant to provide such further or additional particulars or evidence
as he considers necessary or desirable;
(c) upon informing the legal practitioner or legal assistant concerned, in writing, of the
nature of the complaint, require him to reply thereto, in writing, within fourteen
days.
(2) If the Secretary considers that the complaint is without substance, he shall advise the
complainant that he intends to take no further action unless required by the complainant to do
so.
(3) If the Secretary considers that the complaint may have substance, or is required by
the complainant to take further action in terms of sub-by-law (2), he shall submit the com-
plaint and any further or additional particulars or evidence in his possession relating thereto,
and any reply received from the legal practitioner or legal assistant to the disciplinary com-
mittee for consideration.
(4) If, without a formal complaint having been received, it appears that a legal practi-
tioner or legal assistant may have been guilty of unprofessional conduct, the Secretary may
write to the legal practitioner or legal assistant concerned, informing him of the nature of the
conduct suspected and requiring him to reply thereto, in writing, within fourteen days.
(5) Upon the expiry of the said period of fourteen days, and whether or not a reply has
been received to his letter, the Secretary shall submit the matter to the disciplinary committee
for consideration.

Action by disciplinary committee

62. ( 1) Upon receipt of any matter referred to it by the Secretary in terms of by-law 61,
the disciplinary committee shall cause such further investigation to be made in the matter as it
deems fit, and, by notice written and dispatched by the Secretary, on its instructions, to the
complainant, legal practitioner or legal assistant, as the case may be, may—
(a) require the person addressed—
(i) to make or provide affidavits, by a specified date, supporting the facts and
circumstances alleged by him;
(ii) to produce, by a specified date, any book, deed, document, paper or other
writing in his possession or under his control which in any way relates to or
concerns the matter in question;
(b) invite the legal practitioner or legal assistant concerned to make written representa-
tions, by a specified date, on the substance of the complaint and such other matters
as it may direct.
(2) Upon proof of the dispatch of any notice referred to in sub-by-law (1), and after the
expiry of any date specified therein, and on completion of its investigations, the disciplinary
committee shall proceed to consider whether a prima facie case of unprofessional conduct is
disclosed, and shall thereafter refer the matter to the Council, with its findings and recom-
mendations.

111
 Action by Council
63. ( 1) When any matter is referred to it by the disciplinary committee in terms of by-
law 62, the Council shall consider the matter and the disciplinary committee‘s findings and
recommendations, and shall proceed as hereinafter in this by-law set out.
(2) If the Council considers that further investigation is necessary before a decision can
be taken, it shall refer the matter back to the disciplinary committee for further action in terms
of by-law 62, with such directions as it thinks fit.
(3) If the Council considers that a prima facie case of unprofessional conduct is not dis-
closed, it shall direct the Secretary to advise the complainant and the legal practitioner or legal
assistant concerned accordingly.
(4) If the Council considers that a prima facie case of unprofessional conduct is dis-
closed, and has satisfied itself that the legal practitioner or legal assistant concerned has been
afforded a reasonable opportunity to reply to the substance of the complaint, it may—
(a) refer the matter to the Disciplinary Tribunal for inquiry; or
(b) decide to adjudicate itself upon the matter, where for any other reason it considers
that the matter should not be the subject of inquiry by the Disciplinary Tribunal, and
shall thereupon take such action, including admonishing the legal practitioner or le-
gal assistant, as it thinks fit.

Disqualification of councillors
64. ( 1) No councillor shall sit as a member of the disciplinary committee or of the Coun-
cil in any investigation or inquiry in which the complainant or the legal practitioner or legal
assistant whose conduct is the subject of investigation is a partner or employee of the council-
lor or of the firm of which that councillor is a partner or employee.
(2) Where a councillor is disqualified in terms of sub-by-law (1) from sitting as a mem-
ber of the disciplinary committee, the Council may appoint some other councillor to act in his
stead as a member of the disciplinary committee for the purposes of the inquiry concerned.

Powers of Council where its communications are ignored

65. If a complainant, legal practitioner or legal assistant unreasonably neglects or wilful-
ly refuses to furnish to the Secretary, the disciplinary committee or the Council, in connection
with any proceedings under this Part, any statement, affidavit, particulars, book, deed, docu-
ment, paper or other writing required of him—
(a) in the case of a complainant, the Secretary, disciplinary committee or Council, as
the case may be, may refuse to proceed further with the investigation or inquiry;
(b) in the case of the legal practitioner or legal assistant, he shall, ipso facto, be guilty of
unprofessional conduct, and the Council shall refer the papers to the Disciplinary
Tribunal for inquiry.

Legal assistant’s employer to be informed of any complaint or investigation

66. In any inquiry or investigation into the conduct of a legal assistant in terms of these
by-laws, copies of all communications addressed to such legal assistant shall be sent in the
same manner to his principal or employer, who will be entitled to make such representations
on behalf of his legal assistant as he may see fit.

Council’s right to apply for Disciplinary Tribunal inquiry without investigation

67. The Council shall have the right to apply to the Disciplinary Tribunal for an order
against a legal practitioner or legal assistant in terms of subsection (1) or (2) of section 28 of
the Act without following the procedure provided for in this Part, and without any notice to
the legal practitioner or legal assistant, other than such notice as may be required in terms of

112
the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981, if—
(a) the member has been convicted of an offence of the kind referred to in subsection
(3) of section 28 of the Act; or
(b) the Council is of the opinion that delay in making the application might be prejudi-
cial to the public or any member thereof, or to the administration of justice, or to the
reputation of the profession.

Duty of legal practitioners to notify Secretary of special orders of costs made against them
67A. ( 1) Where a court has—
(a) ordered a legal practitioner to pay the costs of any proceedings de bonis propriis; or
(b) directed that no costs be recovered by a legal practitioner from his client;
the legal practitioner shall notify the Secretary of the order or direction within seven days of
his becoming aware of it, and any failure to do so shall constitute unprofessional, dishonoura-
ble or unworthy conduct on the part of that legal practitioner.
[By-law inserted by by-law 2 of SI 461 of 1992]

PART IX
CHARGES AND COMMISSIONS FOR PROFESSIONAL SERVICES

Charges to be fair and reasonable

68. ( 1) In regard to all professional services in matters not provided for by the rules of
any competent court of law or by the Council under by-law 70, legal practitioners shall charge
such sum as may be fair and reasonable, having regard to all the circumstances of the case
and, in particular, the following matters—
(a) the complexity of the matter or the difficulty or novelty of the questions raised;
(b) the skill, labour, specialised knowledge and responsibility involved on the part of
the legal practitioner;
(c) the number and importance of the documents prepared or perused, without regard to
length;
(d) the place where, and the circumstances in which, the business or any part thereof is
transacted;
(e) the time expended by the legal practitioner;
(f) where money or property is involved, its amount or value;
(g) the importance of the matter to the client;
(h) any tariff of recommended charges issued by the Council.
(2) On the taxation of any bill of costs, it shall be the duty of the legal practitioner to sat-
isfy the taxing officer as to the fairness and reasonableness of the charge or charges made.

Tariffs
69. The Council may from time to time fix, prescribe or recommend tariffs of charges
and commissions or minimum or maximum charges and commissions for services rendered
by legal practitioners in matters not provided for by the rules of any competent court of law,
and no legal practitioner shall charge fees other than so fixed or less than any minimum pre-
scribed or more than any maximum fee prescribed:
Provided that—
(i) no tariff so fixed or prescribed shall prohibit any legal practitioner from acting in
any proper case or matter without making any charge therefor;
(ii) until tariffs are so fixed or prescribed by the Council, legal practitioners shall not

113
 charge less than the minimum fees for conveyancing and for non-litigious work oth-
er than conveyancing set out in the Second and Third Schedules, respectively, to the
Law Society of Southern Rhodesia By-laws, 1939.219

Commission on collection of debts

70.(1) In this by-law—
―payment or instalment collected‖ includes—
(a) any payment made by, or on behalf of, any debtor direct to the client, whether
in cash or in kind, or by way of novation or set-off, after the matter has been
handed to the legal practitioner for collection:
Provided that—
(i) at the time when the payment is arranged or made, the matter is still in
the hands of the legal practitioner for collection;
(ii) the debtor has received a demand from the legal practitioner;
and
(b) the value of movables finally recovered or repossessed by the client in terms of
hire-purchase or suspensive sale agreement, leases of movables or agreements
of a like nature, which value shall be any value fixed upon the movables by the
court, failing which the value fixed upon the movables by a sworn appraiser:
Provided that—
(i) where the total unpaid amounts owing under the agreement are less
than the value of the movables, the charge shall be calculated upon
such total unpaid amounts, and not on the value of the movables;
(ii) where no value has been fixed upon the movables, the charge shall be
calculated upon the total unpaid amounts owing under the agreements;
and
(c) all or any legal costs payable by the debtor to the client and collected from the
debtor, but shall not, in the case of claims made by a banker against a customer
or guarantor for the recovery of moneys advanced upon overdraft, include any
sums paid by the debtor directly to the banker;
[Definition as amended by by-law 3 of SI 155 of 1990]
―trade debt‖ means a liquidated claim for money or for the delivery of movable property
against a debtor in default which arises directly or indirectly from any trade, business,
profession, calling or other gainful occupation publicly carried on by the creditor, or
which is claimed by the State or any statutory or local authority, but shall not in-
clude—
(a) any claim, other than a claim for arrear instalments only, for the recovery of
moneys due under a mortgage bond hypothecating immovable property; or
(b) any claim, other than a claim for arrear instalments only, for the payment of the
purchase-price of immovable property in terms of any agreement of sale;
―uncontested claim‖ includes—
(a) any claim not involving the issue of any court process; and
(b) any claim commenced by the issue of a summons where the defendant does not
enter an appearance to defend; and

219
Appropriate tariffs have been fixed and prescribed, so this proviso (i.e. proviso (ii)) falls away.

114
 (c) any judgment debt, not the subject of a pending appeal, which has not been
paid in full within seven days after demand, or such longer period after demand
as may have been stipulated in the demand; and
(d) any claim which, after an appearance to defend has been entered but prior to
judgment, is settled upon terms providing for payment in instalments, or for a
single payment which is not, in fact, paid in terms of the settlement:
Provided that a settlement which envisages payment of the capital sum
plus costs to be taxed or agreed shall not be regarded as providing for payment
in instalments merely because capital and costs are paid separately.
(2) A legal practitioner instructed to collect an uncontested claim for trade debt shall be
entitled and obliged, in lieu of any other fees and charges, save for disbursements, and save as
is hereinafter provided, to charge his client a collection commission at the rate of—
(a) ten per centum on the first two hundred thousand dollars; and
(b) five per centum on the next six hundred thousand dollars; and
(c) two comma five per centum on the balance;
of any payment or instalment collected:
[Sub-by-law as amended by by-law 3 of SI 155 of 1990]
Provided that—
(i) whenever payment in full is recovered in one lump sum in response to a letter of
demand only, the maximum commission payable shall be the sum of five hundred
dollars;
[Proviso (i) as amended by by-law 3 of SI 155 of 1990]
(ii) in the collection of a claim falling within the jurisdiction of the magistrates courts,
the legal practitioner shall be entitled and obliged, in addition, to charge his client
with appropriate fees for any services rendered (whether or not recoverable from the
debtor) referred to in Table A of the Second Schedule to the Magistrates Court (Civ-
il) Rules, 1980;
(iii) in the collection of a claim falling outside the jurisdiction of the magistrates courts,
the legal practitioner shall, in addition to collection charges, be entitled and obliged
to charge his client with fees for professional services rendered in regard to the ob-
taining of judgment against the debtor, and in regard to all forms of execution pro-
ceedings, including garnishee and civil imprisonment proceedings, instituted against
the debtor on the client‘s instructions;
(iv) a legal practitioner who is not obliged in terms of this by-law to charge collection
commission on moneys collected by him shall be entitled, by agreement with his
client, to charge collection commission on such moneys on the scale herein provid-
ed, or on some lower scale, and, in the absence of any such agreement, shall be enti-
tled to receive a fair and reasonable remuneration for work actually done by him on
his client‘s instructions.
(3) The Council of the Society may, on the written application of a member, but only in
exceptional circumstances, authorise such member to depart from the provisions of this by-
law.
PART IXA
BOOKKEEPING
[Part inserted by by-law 3 of SI 191 of 1986]

Interpretation in Part IXA

70A. In this Part—
―auditor‖ …

115
 [Definition repealed by by-law 3 of SI 24 of 1990]
―bank trust account‖ means a current account kept by a legal practitioner at a bank in
terms of subsection (1) of section 13 of the Act;
―firm‖ means—
(a) a legal practitioner in private practice on his own account; or
(b) a partnership of legal practitioners in private practice;
but does not include a legal practitioner who is not obliged to open a trust account in
terms of subsection (3) of section 13 of the Act;
―trust investment account‖ means an account kept by a legal practitioner in terms of sub-
section (2) or (3) of section 13 of the Act.

Monthly trust account balances

70B.(1) At least once in respect of every calendar month, within thirty days after the end
of the calendar month concerned, every firm shall—
(a) extract a list of the credit balances shown in respect of each client in each trust ac-
count; and
(b) note each balance listed in terms of paragraph (a) in some permanent and prominent
manner in the ledger account from which such balance was extracted, by means of a
mark approved by the firm‘s auditor:
Provided that no such mark shall be required where the ledger account is rec-
orded electronically by a computer and the list of credit balances has been produced
automatically.
(2) Every firm shall preserve the list of balances extracted in terms of subsection (1) for
a period of not less than three years from the date on which the list was extracted.

Balancing of books of account

70C. Every firm shall ensure that the books of account that are required to be kept in
terms of section 14 of the Act are written up at least once in each month and are balanced
within three months after the last date upon which the lists referred to in by-law 70B are re-
quired to be extracted.

Notification to Council of details re trust accounts

70D.(1) Immediately after opening a trust account in terms of subsection (1), (2) or (3)
of section 13 of the Act, a firm shall notify the Council and the firm‘s auditor of the name and
address of the bank, building society or other institution at which the trust account is being
kept.
(2) Every firm which, on the date of commencement of the Law Society of Zimbabwe
(Amendment) By-laws, 1986 (No. 1)220, keeps a trust account in terms of section 13 of the
Act, which was opened on or before that date shall, within six weeks after that date, notify the
council and the firm‘s auditor, if he has not already been notified, of the name and address of
the bank, building society or other institution at which the trust account is being kept.
(3) Within ten days after being required to do so by the Council, a firm shall furnish the
Council with signed statements issued by each bank, building society or other institution at
which the firm keeps a trust account, certifying the amount standing to the credit or debit, as
the case may be, of the account at such date as may be specified by the Council.

220
The date of commencement of the by-laws was the

116
 Accounting to clients
70E.(1) Within a reasonable time after the performance or earlier termination of its man-
date, every firm shall deliver to the client concerned a written statement setting out with rea-
sonable clarity—
(a) details of all amounts received by the firm in connection with the matter concerned,
with appropriate and adequate explanatory narrative; and
(b) particulars of all disbursements and payments made by the firm in connection with
the matter; and
(c) all fees and other charges raised against or charged to the client and, where any fee
represents an agreed fee, a statement that it was agreed and the amount so agreed;
and
(d) the amount payable to or by the client.
(2) Unless otherwise instructed, every firm shall pay any amount due to its client within
a reasonable time.

Deposits into and payments from trust accounts to be made promptly

70F.(1) Whenever a firm receives money on account of any person, the firm shall depos-
it the money promptly in its trust bank account, either on the same day that it receives the
money or on the first banking day thereafter on which it can reasonably be expected to do so.
(2) Whenever any money deposited in a trust account of a firm becomes payable to any
person, the firm shall pay the money promptly to the person entitled to it.

Fees and disbursements to be debited promptly

70G. Either before or within a reasonable time after claiming payment of any fee due to
it or in respect of any disbursement made by it, a firm shall pass a corresponding debit in its
books of account.

Trust cheques
70H. Every firm shall ensure that each cheque drawn upon its bank trust account—
(a) is not made payable to ―cash‖ or ―bearer‖ or to ―cash or order‖ but is made payable
to or to the order of a specific payee named or designated on the cheque; and
(b) indicates the name of the firm and bears the words ―trust account‖.

Trust shortfalls
70I. The total of the trust credit balances shown on the trust account in the ledgers of any
firm shall not at any time exceed the total amount of the moneys in the firm‘s bank trust ac-
count and any trust investment accounts, together with the trust cash in hand.

Transfers from trust to other accounts

70J. Every firm shall employ and maintain an adequate accounting system which ensures
that—
(a) notwithstanding the payment of any money into a special trust investment account,
the client concerned is still reflected as a trust creditor; and
(b) generally, the requirements of this Part are complied with whenever money is trans-
ferred from the firm‘s trust bank account to any other account.
[Part inserted by by-law 3 of SI 191 of 1986]

117
 PART IXB
PRACTISING CERTIFICATES
[Part inserted by by-law 4 of SI 24 of 1990]

Applications for practising certificates

71A.(1) An application in terms of section 58A of the Act221 for a practising certificate
shall be—
(a) made to the Secretary—
(i) in the case of an applicant who intends to commence practice as a legal prac-
titioner, not less than thirty days before he intends to commence such prac-
tice; or
(ii) in the case of an applicant who is practising as a legal practitioner and is in
possession of a practising certificate, not less than thirty days before such cer-
tificate expires:
Provided that, subject to section 58B of the Act222, nothing contained in this
paragraph shall be construed as permitting the Secretary to refuse to consider any
application made after the periods specified in subparagraph (i) or (ii); and
(b) made in Form D with such variations as the circumstances may require; and
(c) accompanied by—
(i) the appropriate contribution to the Society specified in by-law 71B; and
(ii) such contribution to the Compensation Fund as may be prescribed in rules
made in terms of section 58 of the Act223; and
(iii) any audit certificate which may be required in terms of section 59A of the
Act224.
(2) The Secretary may require an applicant for a practising certificate to furnish him with
such further information and particulars as may be reasonably required in respect of that ap-
plication before issuing a certificate to the applicant.

Contributions
71B. There shall be submitted with every application for a practising certificate in terms
of section 58A of the Act225 a contribution of one million five hundred thousand dollars paya-
ble to the Society:
Provided that, where such application is made—
(a) by a person who intends to commence practice as a legal practitioner on or after the
first day of July in any year, the contribution shall be seven hundred and fifty thou-
sand dollars;
(b) by a person who has never previously held a practising certificate, the contribution
shall be one million dollars;
(c) by a person who is applying for a limited practising certificate, the contribution shall
be one million dollars.
[By-law as amended by by-law 2 of SI 2 of 2005]

221
Now section 74 of the Legal Practitioners Act [Chapter 27:07].
222
Now section 75 of the Legal Practitioners Act [Chapter 27:07].
223
Now section 73 of the Legal Practitioners Act [Chapter 27:07].
224
Now section 81 of the Legal Practitioners Act [Chapter 27:07].
225
Now section 74 of the Legal Practitioners Act [Chapter 27:07].

118
 Audit certificate
71C.(1) Save in the case of a legal practitioner who is to be employed by or to enter into
partnership with a legal practitioner who has submitted an audit certificate in terms of subsec-
tion (2), a person who intends to commence practice as a legal practitioner and is required to
open and keep a separate trust account in terms of section 13 of the Act shall, before doing so,
submit to the Secretary an audit certificate in form E signed by the firm‘s auditor.
(2) A person who is practising as a legal practitioner and is required to open and keep a
separate trust account in terms of section 13 of the Act shall at least once in each calendar
year submit to the Secretary an audit certificate in form F signed by a firm‘s auditor—
(a) within two months of the annual audit, if any, of the trust books of account of the
practice of the legal practitioner or firm of legal practitioners with which the legal
practitioner is associated, whether as a partner, employee or otherwise; or
(b) within six months of the annual closing of the trust books account of the practice;
or
(c) at the same time as application is made for a practising certificate;
whichever is the earlier.
(3) One audit certificate submitted by a firm of legal practitioners shall constitute com-
pliance with subsection (2) by all the legal practitioners associated with such firm, whether as
partners, employees or otherwise.
(4) Where in any year a legal practitioner—
(a) retires from partnership and thereafter practises on his own account or in partnership
with other legal practitioners; or
(b) who has formerly practised on his own account commences to practise in partner-
ship;
he shall submit an audit certificate covering all relevant periods both before and after the
change or changes.
(5) Where a legal practitioner who has practised on his own account retires from prac-
tice, he shall submit an audit certificate covering the period up to the date of his retirement.
(6) Should an audit certificate submitted to the Secretary reveal a shortfall in trust funds
or other irregularity on the part of the legal practitioner or legal practitioners concerned, the
Secretary shall forward such audit certificate, together with any explanation tendered by the
legal practitioner or legal practitioners concerned, to the disciplinary committee established in
terms of Part VIII.

Form of practising certificates

71D. A practising certificate issued by the Secretary in terms of subsection (1) or (2) of
section 58B of the Act226 shall be in form G, while a limited practising certificate referred to
in subsection (4) of section 58B227 of the Act shall be in form H.
[Part inserted by by-law 4 of SI 24 of 1990]

PART X
MISCELLANEOUS

Office of the Society

71. The office of the Secretary and the headquarters of the Council shall be at such place
in Zimbabwe as the Council may from time to time decide, and such office shall be the office

226
Now section 75(1) or (2) of the Legal Practitioners Act [Chapter 27:07].
227
Now section 75(4) of the Legal Practitioners Act [Chapter 27:07].

119
of the Society where the records, books and documents of the Society shall be kept.

Staff
72.(1) The Council may appoint, on such conditions of service as it thinks fit, and re-
move a Secretary, treasurer, librarian and such clerks, officers and servants as it may from
time to time think fit. It may further employ one of the Society‘s members or his firm as a
legal practitioner or legal practitioners for the Society.
(2) The Council may pay to such Secretary, treasurer, librarian and other officers and
servants of the Society such salaries, fees or wages, or give them or any of them remunera-
tion, as it may from time to time think advisable.

Legal proceedings
73. Whenever the Council has decided to appear in any legal proceedings, it may, by
resolution, delegate to the president, vice-president or other councillor or councillors the au-
thority, with power of substitution, to employ legal practitioners and to do any act or sign any
document on behalf of the Society in the course of such proceedings.

Use of Society’s property

74. The Council may from time to time make such rules respecting the use by the mem-
bers and others of the property of the Society as it shall deem fit, and may rescind or alter
such rules.

Power of Council to investigate a contravention of section 23(1)(i) of the Act

75. Where the Council has reason to believe that a contravention of any of the provisions
of paragraph (i) of subsection (1) of section 23 of the Act is taking place, it may call upon the
legal practitioner concerned to furnish it with an affidavit explaining the position of the em-
ployee in the legal practitioner‘s business and the amount and manner of his remuneration.
The Council shall have the same power where a person, not being a legal practitioner, is con-
tinuously occupied in or about the premises of a legal practitioner under such circumstances
as warrants the Council in concluding that a contravention of the Act is taking place.

Notices
76. Any letter, notice, voting-paper or other document in connection with any business
affecting the Society which, in accordance with these by-laws, is required to be sent by the
Council or by the Secretary or otherwise to any member, if sent to him at his business address
as entered in the register kept by the Secretary in terms of by-law 56, shall be considered to
have been duly and properly sent, and, if such letter, notice, voting-paper or other document
be sent by post, notice of the contents thereof shall be deemed to have been received by such
member at the time when it would have reached him in the ordinary course of post.

Interest on trust money

77. That portion of the interest accruing during the period covered by the audit certificate
referred to in by-law 71C on money deposited in an account opened in terms of subsection (1)
or (2) of section 13 of the Act which is payable to the Compensation Fund shall be paid at the
same time as application is made in terms of section 58A of the Act228 for a practising certifi-
cate.

Repeals
78. [Omitted]

228
Now section 74 of the Legal Practitioners Act [Chapter 27:07].

120
 FIRST SCHEDULE (By-law 2)
FORMS
[Forms A – C are omitted]
Form D
LAW SOCIETY OF ZIMBABWE
APPLICATION FOR PRACTISING CERTIFICATE
1. Name of firm
2. Period (delete inapplicable):
(a) year ending on 31 December 19 …
or
(b) from 19 … to 31 December 19 …
3. Full names of applicant(s)—
(a) partners or principals

(b) qualified assistants

4. Address at which business will be carried out

5. Other place(s) of business with name of person in charge

6. If any applicant(s) had ceased to practise and now intend(s) to resume practice—
(a) former business address and name of firm

(b) when applicant(s) ceased to practise

7. Whether applicant(s) is/are a person(s) who is/are required by section 13 of the Act to
keep a trust account (see note 3): YES/NO.
I/WE being the above-named applicant(s), do hereby certify that the facts set out above
are, to the best of my/our knowledge and belief, true and correct.
Dated at this … day of 19 …

(Signatures of all applicants)

NOTES:
(1) This application must be accompanied by—
(a) the prescribed contribution for each applicant;
(b) an audit certificate or certificates in form E or form F, if the same have not previous-
ly been submitted;
or the declaration in note 3 below duly signed.
(2) If the answer to paragraph is no and the applicant has not submitted an audit certifi-
cate, the following declaration must be signed:

121
 I/WE, the above-named applicant(s), do hereby certify that in my/our capacity as legal
practitioner(s) or as executor(s), administrator(s) or trustee(s), I/we have not held or received
any moneys for or on behalf of another person during the period of validity of any practising
certificate which has been issued to me/us and which is about to expire, nor will I/we during
the period of validity of the practising certificate for which I am / we are now applying, hold
or receive any such moneys before having produced an audit certificate satisfactory to the
Secretary.
Dated at this … day of 19 …

(Signatures of all applicants)

(4) If the answer to paragraph 9 is yes, the following declaration must be signed:
I, the above-named applicant, do hereby certify that if I am issued with a limited prac-
tising certificate, no fees will be raised or charged by me or any other person in respect of any
work carried out under the authority of such certificate.
Dated at this … day of 19 …

(Applicant)
[Form inserted by By-law 6 of SI 24 of 1990]
Form E
AUDIT CERTIFICATE FOR THE LAW SOCIETY OF ZIMBABWE
___________
In terms of section 81 of the Legal Practitioners Act [Chapter 27:07], in respect of
Legal Practitioner/s who is/are intending to commence practice.
We, , public auditors registered in terms of the Public Accountants and Auditors Act [Chap-
ter 27:12], hereby certify that in respect of the above-mentioned legal practitioner(s) who in-
tend(s) to commence practice and is/are required to open and keep a separate trust account in
terms of section 13 of the Legal Practitioners Act, we have explained a system of bookkeep-
ing which is adequate to enable the legal practitioner(s) to comply fully with the provisions of
sections 13 and 14 of the Act and Part IXA of the Law Society of Zimbabwe By-laws.
Dated at this … day of 19 …

Public Auditors
[Form inserted by By-law 6 of SI 24 of 1990. References in the form to chartered
accountants and to statutory provisions have been up-dated.]
Form F
AUDIT CERTIFICATE FOR THE LAW SOCIETY OF ZIMBABWE
___________
ISSUED IN TERMS OF SECTION 81 OF THE LEGAL PRACTITIONERS ACT [Chapter 27:07]
IN RESPECT OF LEGAL PRACTITIONERS
___________
We, , Public Auditors registered in terms of the Public Accountants and Auditors Act
[Chapter 27:12], certify:
1. That we have examined the system of bookkeeping employed by the above-named
firm for a period of … months ending on the … day of 19 … (being a date not more than

122
six months prior to the date of this certificate).
2. That from such examination we are satisfied that the system is adequate to enable the
firm to comply with the provisions of sections 13 and 14 of the Legal Practitioners Act
[Chapter 27:07] and Part IXA of the Law Society of Zimbabwe By-laws, 1982, as inserted by
SI 191 of 1986.
3. That we have prepared/checked a list of the balances shown on the trust account of the
firm at the closing date of the period covered, as specified in paragraph (1) and at the … day
of
19… being one other date during that period selected by us.
4. That the total of funds kept by the firm in its trust accounts together with trust funds
on hand in cash or in the form of unpresented or uncleared cheques on each of the said dates
did/did not fall short of the total of the balances shown on the trust account of the firm on
those dates according to the said list. (In the event of there being a shortfall, describe the ex-
tent and nature thereof and whether at the date of signing the certificate the position has been
rectified to the satisfaction of the auditor).
5. That the firm has/has not during the period in question kept a trust account opened in
terms of subsection (1) or (2) of section 13 of the Legal Practitioners Act [Chapter 27:07].
6. That the total amount of interest accrued during the period in question in respect of
each of the accounts opened in terms of subsection (1) or (2) of section 13 of the Legal Practi-
tioners Act [Chapter 27:07] amounted to $ .
7. That the firm has during the period in question prepared and retained a list of the cred-
it balances in respect of each client shown in its trust account each month during the period in
question.
Dated at this … day of 19 …

Public Auditors
[Form inserted by By-law 6 of SI 24 of 1990. References in the form to chartered
accountants and to statutory provisions have been up-dated.]
Form G
THE LAW SOCIETY OF ZIMBABWE
PRACTISING CERTIFICATE
________

is registered as a legal practitioner and is entitled to practise as such during the year ending 31
December 19 …
(See reverse for any applicable conditions)

Secretary
[Form inserted by By-law 6 of SI 24 of 1990]
Form H
THE LAW SOCIETY OF ZIMBABWE
LIMITED PRACTISING CERTIFICATE

is registered as a legal practitioner and is entitled to practise as such during the year ending 31
December 19 … subject to the condition that

123
Secretary
[Form inserted by By-law 6 of SI 24 of 1990]

124
 APPENDIX 3: LEGAL PRACTITIONERS (GENERAL) REGULATIONS
(EXTRACTS)
The Legal Practitioners (General) Regulations, 1999, were published in SI 137 of
1999
ARRANGEMENT OF SECTIONS
Section
1. Title.
2. Application for registration.
3. Registration.
4. Practical legal training after registration.
5. Trust accounts.
6. Protocols and registers.
7. Duplicate or corrected registration certificates.
8. Inspection of Register.
9. Notice of deletion from Register.
10. Repeals and savings.
FIRST SCHEDULE: Forms of Registration Certificate.
SECOND SCHEDULE: Repeals (Omitted)

IT is hereby notified that the Minister of Justice, Legal and Parliamentary Affairs, in
terms of section 87 of the Legal Practitioners Act [Chapter 27:07] and after consultation with
the Chief Justice and the president of the Law Society of Zimbabwe, has made the following
regulations:–

Title
1. These regulations may be cited as the Legal Practitioners (General) Regulations, 1999.

Application for registration

2.(1) Notice of intention to apply for registration as a legal practitioner, notary public or
conveyancer shall be given to the secretary of the Society not later than thirty days before the
application is made, and such notice shall be accompanied by copies of all documents referred
to in paragraphs (a) to (d) of subsection (3), together with a fee of fifty dollars, which shall be
paid to the Society.
(2) An application for registration as a legal practitioner, notary public or conveyancer
shall set forth the grounds upon which the applicant relies for registration.
(3) An application referred to in subsection (2) shall be accompanied by—
(a) documentary evidence that the applicant possesses the qualifications for registration
prescribed in rules made by the Council for Legal Education in terms of section 49
of the Act; and
(b) where the applicant has been exempted by the Council for Legal Education from
passing any examination in terms of the Legal Practitioners (Council for Legal Edu-
cation) Rules, 1992, documentary evidence of such exemption; and
(c) the applicant‘s birth certificate or, in default thereof, such other documentary proof
as he can produce to show that he is of, or above, the age of twenty-one years; and
(d) documentary evidence that the applicant satisfies the requirements of paragraphs (c),
(e) and (f) of subsection (1) of section 5 of the Act; and
(e) a certificate from the secretary of the Society stating that the applicant has given the
notice required by subsection (1); and
(f) a fee of fifty dollars, which shall be payable to the Registrar.

125
 (4) Upon the hearing of an application for registration, any registered legal practitioner
may request the leave of the High Court to appear as amicus curiae to oppose the granting of
the application.

Registration
3.(1) Where the High Court grants an application for registration, the Registrar shall en-
ter in the Register—
(a) the full name and address of the applicant; and
(b) the applicant‘s qualifications for registration; and
(c) the date on which the application was granted; and
(d) the capacity, whether as a legal practitioner, notary public or conveyancer, in which
the applicant is registered.
(2) The certificate of registration issued to a person whose name is entered in the register
shall be in the appropriate form set out in the First Schedule.

Practical legal training after registration

4.(1) Subject to this section, a legal practitioner shall not commence to practise as a prin-
cipal, whether on his own account or in partnership or association with any other person, un-
less he has been employed as a legal assistant for not less than thirty-six months after registra-
tion with a legal practitioner who has himself—
(a) been in practice in Zimbabwe for at least forty-eight months; and
(b) been approved by the Minister after consultation with the Council for Legal Educa-
tion and the Council of the Society.
(2) Subject to this section, on and after such date as the Minister may specify in the Ga-
zette after consultation with the Council for Legal Education, a legal practitioner shall not
commence to practise as a principal, whether on his own account or in partnership or associa-
tion with any other person, unless, in addition to satisfying the requirements of subsection
(1)—
(a) he satisfies the Council for Legal Education that, while he was employed as a legal
assistant as provided in subsection (1), he attended a full course of seminars for con-
tinuous legal education that were organised by the Council; and
(b) he has passed written examinations set by—
(i) the Council for Legal Education; or
(ii) the Council of the Society with the approval of the Council for Legal Educa-
tion;
in the following subjects—
A. trust accounting; and
B. practice management and administration; and
C. ethics and professional conduct of legal practitioners; and
D. where applicable, any other subject specified by the Council for Legal Educa-
tion in terms of subsection (2).
(3) The Council for Legal Education, having regard to a legal practitioner‘s ability or
experience or any other relevant factor, may—
(a) exempt him from attendance at any seminar and additionally, or alternatively, ex-
cuse his failure to attend any seminar referred to in paragraph (a) of subsection (2);
(b) in special circumstances, specify that a legal practitioner shall pass one or more ad-
ditional examinations for the purpose of paragraph (b) of subsection (2).

126
 (4) Subsection (1) shall not apply to a legal practitioner who—
(a) has been granted a residential exemption certificate in terms of section 7 of the Act,
in respect of the matter to which the certificate relates; or
(b) is normally resident in a reciprocating country and has been in practice as an advo-
cate, barrister, attorney or solicitor, or in a capacity equivalent to that of a legal
practitioner in Zimbabwe, for at least forty-eight months.
(5) Subsection (2) shall not apply to a legal practitioner who—
(a) has been granted a residential exemption certificate in terms of section 7 of the Act,
in respect of the matter to which the certificate relates; or
(b) was registered before the date specified by the Minister in terms of that subsection:
Provided that such a legal practitioner shall comply with any provisions of the Act or any
regulations made thereunder that were applicable to him when he was registered.

Trust accounts
5.(1) A trust account, kept by a legal practitioner in terms of subsection (2) of section 13
of the Act, shall be such as to allow the withdrawal of funds therefrom on not more than sev-
en days‘ notice.
(2) A curator bonis appointed in terms of subsection (2) of section 16 of the Act to con-
trol and administer a trust account may be vested with any one or more of the following
rights, duties and powers—
(a) to take possession of all books, records and documents relating to the trust account;
(b) to advertise, in such manner as the Master of the High Court may direct, for the
lodging of claims in respect of the trust account;
(c) to record any claims in respect of the trust account lodged in response to any adver-
tisement;
(d) to settle, in such manner as the Master of the High Court may direct or approve, the
amount of any claims in respect of the trust account;
(e) to bring or defend proceedings in any court arising out of any claim in respect of the
trust account;
(f) to draw up and lodge with the Master of the High Court an account reflecting the
assets and liabilities of the trust account, and allocation of the assets to the persons
who have claims in respect of the trust account;
(g) subject to the directions of the Master of the High Court, to distribute the assets of
the trust account among the persons who have claims in respect of the trust account;
(h) to pay any balance in the trust account, after all claims have been satisfied, to such
person as the Master of the High Court may direct;
(i) to do such other things to ensure the proper distribution of the trust account as the
Master of the High Court may specify.
(3) A curator bonis appointed in terms of subsection (2) of section 16 of the Act to con-
trol and administer a trust account may receive from the trust account such remuneration as
the Master of the High Court may fix.

Protocols and registers

6.(1) Every notary public who effects any transaction pertaining to his practice as such
shall record the transaction in the appropriate protocol and register which he shall keep and
maintain for the purpose.
(2) At least once in each calendar year, when required by the Council of the Society to
do so, every notary public practising as such in Zimbabwe shall submit to the secretary of the

127
Society a certificate signed by himself to the effect that the protocol and register kept by him
have been properly kept in accordance with the obligations of a notary public.
(3) The Council of the Society shall have the right, without notice, and at all reasonable
times, through its duly authorised agents, to inspect the protocol and register of any notary
public in Zimbabwe, for the purpose of ascertaining whether or not the protocol and register
are being properly kept in accordance with the obligations of a notary public.
(4) The Council of the Society may give directions as to the disposal and custody of pro-
tocols and registers of deceased or retired notaries public or of notaries public who have been
struck off the register or suspended from practice.

Duplicate or corrected registration certificates

7.(1) The Registrar shall, on payment of a fee of fifty dollars, issue to a registered legal
practitioner, notary public or conveyancer a duplicate copy of any certificate of registration
issued by him to that legal practitioner, notary public or conveyancer in terms of section 3 of
the Act.
(2) A duplicate copy of a registration certificate issued in terms of subsection (1) shall be
in the same form as an original registration certificate, but shall bear the words ―Duplicate
copy‖ written prominently on its face.
(3) The Registrar may, on payment of a fee of fifty dollars and on being satisfied that the
particulars specified in the original are, or have become, incorrect, issue to a registered legal
practitioner, notary public or conveyancer a corrected copy of any certificate of registration
issued by him to that legal practitioner, notary public or conveyancer in terms of section 3 of
the Act.
(4) The Registrar shall record in the Register the date on which he issues any duplicate
or corrected copy of a certificate of registration in terms of this section.

Inspection of Register
8. Any person may, during ordinary office hours, inspect the Register at the office of the
Registrar, and may make copies of any entry in it.

Notice of deletion from Register

9. A registered legal practitioner, notary public or conveyancer who applies in terms of
subsection (1) of section 6 of the Act for the deletion of his name from the Register shall give
not less than twenty-one days‘ notice of the application to the secretary of the Society.

Repeals and savings

10. (Omitted)

128
 FIRST SCHEDULE (Sections 3 and 7)
FORM OF REGISTRATION CERTIFICATES
PART I
CERTIFICATE OF REGISTRATION OF LEGAL PRACTITIONER
This is to certify that …………………………………………… was, on the ….… day of
………………………………….., 19………… registered as a legal practitioner in terms of
the Legal Practitioners Act [Chapter 27:07] and is accordingly entitled to all the rights and
privileges and is charged with all the responsibilities attaching to the practice of the profes-
sion of a legal practitioner.

Registrar of the High Court of Zimbabwe

Date:
[Seal of the High Court]
PART II
CERTIFICATE OF REGISTRATION OF NOTARY PUBLIC
This is to certify that …………………………………………… was, on the ….… day of
………………………………….., 19………… registered as a notary public in terms of the
Legal Practitioners Act [Chapter 27:07] and is accordingly entitled to all the rights and privi-
leges and is charged with all the responsibilities attaching to the practice of the profession of a
notary public.

Registrar of the High Court of Zimbabwe

Date:
[Seal of the High Court]
PART III
CERTIFICATE OF REGISTRATION OF CONVEYANCER
This is to certify that …………………………………………… was, on the ….… day of
………………………………….., 19………… registered as a conveyancer in terms of the
Legal Practitioners Act [Chapter 27:07] and is accordingly entitled to all the rights and privi-
leges and is charged with all the responsibilities attaching to the practice of the profession of a
conveyancer.

Registrar of the High Court of Zimbabwe

Date:
[Seal of the High Court]

129
APPENDIX 4: INTERNATIONAL BAR ASSOCIATION : INTERNATIONAL
CODE OF ETHICS
(First adopted 1956, this edition 1988)
Preamble
The International Bar Association is a federation of National Bar Associations and Law Soci-
eties with full or sustaining organisational members and individual members. Most of the full
or sustaining organisational members have established Codes of Legal Ethics as models for or
governing the practice of law by their members. In some jurisdictions these Codes are im-
posed on all practitioners by their respective Bar Associations or Law Societies or by the
courts or administrative agencies having jurisdiction over the admission of individuals to the
practice of law.
Except where the context otherwise requires, this Code applies to any lawyer of one jurisdic-
tion in relation to his contacts with a lawyer of another jurisdiction or to his activities in an-
other jurisdiction.
Nothing in this Code absolves a lawyer from the obligation to comply with such requirements
of the law or of rules of professional conduct as may apply to him in any relevant jurisdiction.
It is a restatement of much that is in these requirements and a guide as to what the Interna-
tional Bar Association considers to be a desirable course of conduct by all lawyers engaged in
the international practice of law.
The International Bar Association may bring incidents of alleged violations to the attention of
relevant organisations.

________________
Rules
1. A lawyer who undertakes professional work in a jurisdiction where he is not a full
member of the local profession shall adhere to the standards of professional ethics in
the jurisdiction in which he has been admitted. He shall also observe all ethical stand-
ards which apply to lawyers of the country where he is working.
2. Lawyers shall at all times maintain the honour and dignity of their profession. They
shall, in practice as well as in private life, abstain from any behaviour which may tend
to discredit the profession of which they are members.
3. Lawyers shall preserve independence Lawyers practising on their own account or in
partnership where permissible, shall not engage in any other business or occupation if
by doing so they may cease to be independent.
4. Lawyers shall treat their professional colleagues with the utmost courtesy and fairness.
Lawyers who undertake to render assistance to a foreign colleague shall always keep in
mind that the foreign colleague has to depend on them to a much larger extent than in
the case of another lawyer of the same country. Therefore their responsibility is much
greater, both when giving advice and when handling a case.
For this reason it is improper for lawyers to accept a case unless they can handle it
promptly and with due competence, without undue interference by the pressure of
other work. To the fees in these cases Rule 19 applies.
5. Except where the law or custom of the country concerned otherwise requires, any oral
or written communication between lawyers shall in principle be accorded a confidential
character as far as the Court is concerned, unless certain promises or acknowledge-
ments are made therein on behalf of a client.
6. Lawyers shall always maintain due respect towards the Court. Lawyers shall without
fear defend the interests of their clients and without regard to any unpleasant conse-

130
 quences to themselves or to any other person. Lawyers shall never knowingly give to
the Court incorrect information or advice which is to their knowledge contrary to the
law.
7. It shall be considered improper for lawyers to communicate about a particular case di-
rectly with any person whom they know to be represented in that case by another law-
yer without the latter‘s consent.
8. A lawyer should not advertise or solicit business except to the extent and in the manner
permitted by the rules of the jurisdiction to which that lawyer is subject. A lawyer
should not advertise or solicit business in any country in which such advertising or so-
liciting is prohibited.
9. A lawyer should never consent to handle a case unless: (a) the client gives direct in-
structions, or, (b) the case is assigned by a competent body or forwarded by another
lawyer, or (c) instructions are given in any other manner permissible under the relevant
rules or regulations.
10. Lawyers shall at all times give clients a candid opinion on any case. They shall render
assistance with scrupulous care and diligence. This applies also if they are assigned as
counsel for an indigent person. Lawyers shall at any time be free to refuse to handle a
case, unless it is assigned by a competent body. Lawyers should only withdraw from a
case during its course for good cause, and if possible in such a manner that the client‘s
interests are not adversely affected. The loyal defence of a client‘s case may never
cause advocates to be other than perfectly candid, subject to any right or privilege to
the contrary which clients choose them to exercise, or knowingly to go against the law.
11. Lawyers shall, when in the client‘s interest, endeavour to reach a solution by settlement
out of court rather than start legal proceedings. Lawyers should never stir up litigation.
12. Lawyers should not acquire a financial interest in the subject matter of a case which
they are conducting. Neither should they directly or indirectly, acquire property about
which litigation is pending before the Court in which they practise.
13. Lawyers should never represent conflicting interests in litigation. In non-litigation mat-
ters, lawyers should do so only after having disclosed all conflicts or possible conflicts
of interest to all parties concerned and only with their consent. This Rule also applies
to all lawyers in a firm.
14. Lawyers should never disclose, unless lawfully ordered to do so by the Court or as re-
quired by Statute what has been communicated to them in their capacity as lawyers
even after they have ceased to be the client‘s counsel. This duty extends to their part-
ners, to junior lawyers assisting them and to their employees.
15. In pecuniary matters lawyers shall be most punctual and diligent. They should never
mingle funds of others with their own and they should at all times be able to refund
money they hold for others. They shall not retain money they receive for their clients
for longer than is absolutely necessary.
16. Lawyers may require that a deposit is made to cover their expenses, but the deposit
should be in accordance with the estimated amount of their charges and the probable
expenses and labour required.
17. Lawyers shall never forget that they should put first not their right to compensation for
their services, but the interests of their clients and the exigencies of the administration
of justice. The Lawyer‘s right to ask for a deposit or to demand payment of out-of-
pocket expenses and commitments, failing payment of which they may withdraw from
the case or refuse to handle it, should never be exercised at a moment at which the cli-
ent may be unable to find other assistance in time to prevent irreparable damage being
done. Lawyers‘ fees should, in the absence or non-applicability of official scales, be
fixed on a consideration of the amount involved in the controversy and the interest of it

131
 to the client, the time and labour involved and all other personal and factual circum-
stances of the case.
18. A contract for a contingent fee, where sanctioned by the law or by professional rules
and practice, should be reasonable under all circumstances of the case, including the
risk and uncertainty of the compensation and subject to supervision of a court as to its
reasonableness.
19. Lawyers who engage a foreign colleague to advise on a case or to co-operate in han-
dling it, are responsible for the payment of the latter‘s charges except where there has
been express agreement to the contrary. When lawyers direct a client to a foreign col-
league they are not responsible for the payment of the latter‘s charges, but neither are
they entitled to a share of the fee of this foreign colleague.
20. Lawyers should not permit their professional services or their names to be used in any
way which would make it possible for persons to practise law who are not legally au-
thorised to do so. Lawyers shall not delegate to a legally unqualified person not in their
employ and control any functions which are by the law or custom of the country in
which they practise only to be performed by a qualified lawyer.
21. It is not unethical for lawyers to limit or exclude professional liability subject to the
rules of their local Bar Association and to there being no statutory or constitutional
prohibitions.

132
APPENDIX 5 : UNITED NATIONS : BASIC PRINCIPLES ON THE ROLE OF
LAWYERS
(Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990)

Extracts from the Principles:

Duties and Responsibilities
12. Lawyers shall at all times maintain the honour and dignity of their profession as essential
agents of the administration of justice.
13. The duties of lawyers towards their clients shall include:
a) Advising clients as to their legal rights and obligations, and as to the working of the
legal system in so far as it is relevant to the legal rights and obligations of the clients;
b) Assisting clients in every appropriate way, and taking legal action to protect their in-
terests;
c) Assisting clients before courts, tribunals or administrative authorities, where appro-
priate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice,
shall seek to uphold human rights and fundamental freedoms recognised by national and in-
ternational law and shall at all times act freely and diligently in accordance with the law and
recognised standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
Guarantees for the functioning of lawyers
16. Governments shall ensure that lawyers (a) are able to perform all of their professional
functions without intimidation, hindrance, harassment or improper interference; (b) are able
to travel and consult with their clients freely both within their own country and abroad; and
(c) shall not suffer, or be threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognised professional duties, standards
and ethics.
17. Where the security of lawyers is threatened as a result of discharging their functions, they
shall be adequately safeguarded by the authorities.
…
19. No court or administrative authority before whom the right to counsel is recognised shall
refuse to recognise the right of a lawyer to appear before it for his or her client unless that
lawyer has been disqualified in accordance with national law and practice and in conformity
with these principles.
20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith
in written or oral pleadings or in their professional appearances before a court, tribunal or oth-
er legal or administrative authority.
21. It is the duty of the competent authorities to ensure lawyers access to appropriate infor-
mation, files and documents in their possession or control in sufficient time to enable lawyers
to provide effective legal assistance to their clients. Such access should be provided at the
earliest appropriate time.
22. Governments shall recognise and respect that all communications and consultations be-
tween lawyers and their clients within their professional relationship are confidential.

133
Freedom of expression and association
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and
assembly. In particular, they shall have the right to take part in public discussion of matters
concerning the law, the administration of justice and the promotion and protection of human
rights and to join or form local, national or international organisations and attend their meet-
ings, without suffering professional restrictions by reason of their lawful action or their mem-
bership in a lawful organisation. In exercising these rights, lawyers shall always conduct
themselves in accordance with the law and the recognised standards and ethics of the legal
profession.
Professional associations of lawyers
24. Lawyers shall be entitled to form and join self-governing professional associations to rep-
resent their interests, promote their continuing education and training and protect their profes-
sional integrity. The executive body of the professional associations shall be elected by its
members and shall exercise its functions without external interference.
25. Professional associations of lawyers shall co-operate with Governments to ensure that
everyone has effective and equal access to legal services and that lawyers are able, without
improper interference, to counsel and assist their clients in accordance with the law and rec-
ognised professional standards and ethics.
Disciplinary proceedings
26. Codes of professional conduct for lawyers shall be established by the legal profession
through its appropriate organs, or by legislation, in accordance with national law and custom
and recognised international standards and norms.
27. Charges or complaints made against lawyers in their professional capacity shall be pro-
cessed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to
a fair hearing, including the right to be assisted by a lawyer of their choice.
28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary
committee established by the legal profession, before an independent statutory authority, or
before a court, and shall be subject to an independent judicial review.
29. All disciplinary proceedings shall be determined in accordance with the code of profes-
sional conduct and other recognised standards and ethics of the legal profession and in the
light of these principles.

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 APPENDIX 6 : UNITED NATIONS : BASIC PRINCIPLES ON THE INDE-
PENDENCE OF THE JUDICIARY
(Adopted by the Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, held at Milan from 26 August to 6 September 1985 and en-
dorsed by General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of
13 December 1985)

Extracts from the Principles:

Independence of the judiciary
…
2. The judiciary shall decide matters before them impartially, on the basis of facts and in ac-
cordance with the law, without any restrictions, improper influences, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have ex-
clusive authority to decide whether an issue submitted for its decision is within its compe-
tence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process,
nor shall judicial decisions by the courts be subject to revision. This principle is without prej-
udice to judicial review or to mitigation or commutation by competent authorities of sentenc-
es imposed by the judiciary, in accordance with the law.
…
6. The principle of the independence of the judiciary entitles and requires the judiciary to en-
sure that judicial proceedings are conducted fairly and that the rights of the parties are re-
spected.
…
Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard to their deliberations
and to confidential information acquired in the course of their duties other than in public pro-
ceedings, and shall not be compelled to testify on such matters.
…

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 APPENDIX 7 : AFRICAN UNION : PRINCIPLES AND GUIDELINES ON
THE RIGHT TO A FAIR TRIAL AND LEGAL ASSISTANCE IN AFRICA
(Adopted as part of the African Commission’s activity report at the 2nd Summit and
meeting of Heads of State of the AU held in Maputo from 4 – 12 July 2003)

Extract from the Principles and Guidelines:

4. Independent tribunal
…
g) All judicial bodies shall be independent from the executive branch.
…
5. Impartial tribunal
a) A judicial body shall base its decision only on objective evidence, arguments and
facts presented before it. Judicial officers shall decide matters before them without
any restrictions, improper influences, inducements, pressure, threats or interference,
direct or indirect, from any quarter or for any reason.
b) Any party to proceedings before a judicial body shall be entitled to challenge its im-
partiality on the basis of ascertainable facts that the fairness of the judge or judicial
body appears to be in doubt.
c) The impartiality of a judicial body could be determined on the basis of three relevant
facts:
1. that the position of the judicial officer allows him or her to play a crucial role
in the proceedings;
2. the judicial officer may have expressed an opinion which would influence the
decision-making;
3. the judicial official would have to rule on an action taken in a prior capacity.
d) The impartiality of a judicial body would be undermined when:
1. a former public prosecutor or legal representative sits as a judicial officer in a
case in which he or she prosecuted or represented a party;
2. a judicial official secretly participated in the investigation of a case;
3. a judicial official has some connection with the case or a party to the case;
4. a judicial official sits as member of an appeal tribunal in a case which he or
she decided or participated in a lower judicial body.
In any of these circumstances, a judicial official would be under an obligation to
step down.
e) A judicial official may not consult a higher official authority before rendering a deci-
sion in order to ensure that his or her decision will be upheld.

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 APPENDIX 8 : UNITED NATIONS : GUIDELINES ON THE ROLE OF
PROSECUTORS
(Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990)

Extracts from the Guidelines:

Status and conditions of service
3. Prosecutors, as essential agents of the administration of justice, shall at all times maintain
the honour and dignity of their profession.
4. States shall ensure that prosecutors are able to perform their professional functions without
intimidation, hindrance, harassment, improper interference or unjustified exposure to civil,
penal or other liability.
5. Prosecutors and their families shall be physically protected by the authorities when their
personal safety is threatened as a result of the discharge of their prosecutorial functions.
6. Reasonable conditions of service of prosecutors, adequate remuneration and, where appli-
cable, tenure, pension and age of retirement shall be set out by law or published rules or regu-
lations.
7. Promotion of prosecutors, wherever such a system exists, shall be based on objective fac-
tors, in particular professional qualifications, ability, integrity and experience, and decided
upon in accordance with fair and impartial procedures.
…
Role in criminal proceedings
10. The office of prosecutors shall be strictly separated from judicial functions.
11. Prosecutors shall perform an active role in criminal proceedings, including institution of
prosecution and, where authorised by law or consistent with local practice, in the investiga-
tion of crime, supervision over the legality of these investigations, supervision of the execu-
tion of court decision and the exercise of other functions as representatives of the public inter-
est.
12. Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and
expeditiously, and respect and protect human dignity and uphold human rights, thus contrib-
uting to ensuring due process and the smooth functioning of the criminal justice system.
13. In the performance of their duties, prosecutors shall:
a) Carry out their functions impartially and avoid all political, social, religious, racial,
cultural, sexual or any other kind of discrimination;
b) Protect the public interest, act with objectivity, take proper account of the position of
the suspect and the victim, and pay attention to all relevant circumstances, irrespec-
tive of whether they are to the advantage or disadvantage of the suspect;
c) Keep matters in their possession confidential, unless the performance of duty or the
needs of justice require otherwise;
d) Consider the views and concerns of victims when their personal interests are affected
and ensure that victims are informed of their rights in accordance with the Declara-
tion of Basic Principles of Justice for Victims of Crime and Abuse of Power.
14. Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay
proceedings, when an impartial investigation shows the charge to be unfounded.
15. Prosecutors shall give due attention to the prosecution of crimes committed by public of-
ficials, particularly corruption, abuse of power, grave violations of human rights and other

137
crimes recognised by international law and, where authorised by law or consistent with locval
practice, the investigation of such offences.
16. When prosecutors come into possession of evidence against suspects that they know or
believe on reasonable grounds was obtained through recourse to unlawful methods, which
constitute a grave violation of the suspect‘s human rights, especially involving torture or cru-
el, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall
refuse to use such evidence against anyone than those who used such methods, or inform the
court accordingly, and shall take all necessary steps to ensure that those responsible for using
such methods are brought to justice.
…
Relations with other government agencies or institutions
20. In order to ensure the fairness and effectiveness of prosecution, prosecutors shall strive to
co-operate with the police, the courts, the legal profession, public defenders and other gov-
ernment agencies or institutions.
…
Observance of the Guidelines
23. Prosecutors shall respect the present Guidelines. They shall also, to the best of their ca-
pability, prevent and actively oppose any violations thereof.
24. Prosecutors who have reason to believe that a violation of the present Guidelines has oc-
curred or is about to occur shall report the matter to their superior authorities and, where nec-
essary, to other appropriate authorities or organs vested with reviewing or remedial power.

[Note: virtually identical provisions are contained in the Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa, adopted as part of the African Commis-
sion’s activity report at the second summit and meeting of heads of State of the African Union
held in Maputo from 4-12 July 2003]

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