MAVANGIRA
J. This is an urgent chamber application
in which the applicant's legal practitioner raised a preliminary point which
needs to be determined before the Court can proceed to hear the preliminary
points that the respondents raise.
Mr
Chikumbirike for the applicant
submitted that Mr Mutamangira should
not appear in these proceedings as a legal practitioner for the first and
second respondents and that he can only appear as their agent. The basis for this is that Mr Mutamangira is intimately and
emotionally interested in matters involving the applicant and the respondents
and generally in the affairs that have developed and culminated in the
institution of these proceedings. Amongst other things he was involved in the
investigations that were conducted and which led to the prosecution of the
deponent to the applicant's founding affidavit. He also submitted that the
legal firm Mutamangira and Associates ought not to be allowed to represent the
first and second respondents in these proceedings as the affidavits that they
filed on behalf of these respondents were prepared and commissioned by the same
firm. This is unethical conduct which this court should not countenance beyond
this stage.
It
is contended that Mr Mutamangira and
or the firm ought to have realised the impropriety of their participation in
these proceedings as legal practitioners for the first and second respondents.
They should have advised their clients accordingly and consequently of the need
for a different firm to represent them as their legal practitioners.
Mutamangira and Associates would then only act or appear as agents for the said
respondents.
It
was further submitted that Mr Mutamangira
and or his firm cannot properly represent the fifth respondent as he is being
sued in his official capacity and should thus be represented only by the
Attorney-General as the principal legal advisor to the Government.
The
documents which Mr Chikumbirike
referred the court to in support of his submissions are mostly attachments to
the first respondent's opposing affidavit which was deposed to by one Godwills
Masimirembwa, the Chairman of the first respondent's board of directors. One such document is a letter dated 20
September 2010 authored by the fifth respondent and addressed to Mr
Masimirembwa. Therein the fifth
respondent directs that the board investigates and establishes, amongst other
issues, the applicant's shareholding as well as the “standing” of its current
shareholders. Specific reference was
made to paragraph 4 of this letter. The
paragraph states, inter alia, that
the fifth respondent expected a professionally compiled report and that a
suitable person must be identified to undertake the investigation or enquiry on
the directions given by the fifth respondent in the letter. It was contended
that from the events that ensued Mr Mutamangira
turned out to be the suitable person that was needed.
Reference
was made to Annexure GM3 to Masimirembwa's affidavit. This is a copy of the minutes of the meeting
of the Mining Development Board members with the applicant's members held at
the first respondent's head office boardroom on 19 October 2010. Amongst those recorded as being in attendance
at the meeting is Advocate F Mutamangira. Mr Chikumbirike
specifically referred to para (e) of the minutes at p 100 where the following
decision, amongst others, was made or recorded: “That the Core Mining shares in
Canadile be transferred to Marange Resources”. He submitted that this shows
that this was a meeting where the “dismemberment of a duly registered company
was being done or discussed and that this was in the presence of Mr.
Mutamangira. He submitted that in these
circumstances Mr Mutamangira cannot deny the level of involvement that is being
alleged against him as the minutes are an indication of his intricate
involvement in the affairs referred to.
It
was Mr Chikumbirike's submission that
in the scenario postulated by Mr Mutamangira,
in which a legal practitioner gives legal advice to a board of directors, the
clear answer is that such legal practitioner cannot thereafter represent the
same client as a legal practitioner. (In
his submission this is what elementary knowledge of the law and elementary
corporate governance dictates.) (omit?)
It
was also submitted that it would not have been proper for the applicant to
refrain from raising this preliminary issue on the basis of expediency. To do so would be to allow an extremely bad
precedent to be set.
Mr
Mutamangira in response, submitted
that no evidence was placed before the court to enable it to determine the
depth of his alleged involvement in the matters referred to. He submitted that the allegations made were
based on speculation. As regards the
investigation into the affairs of the fourth respondent which investigation was
conducted at the behest of the fifth respondent, he submitted that the
investigation was conducted by the first respondent and not by him or his
firm. They only provided legal advice
and he cannot thus be said to be or to have been intimately involved in the
affairs that have developed for some time eventually culminating in the filing
of the instant urgent chamber application.
Regarding
the affidavits said to have been prepared and commissioned or attested by his
firm, he submitted that the affidavits were prepared by the deponents and not
by his firm. He also submitted that when
the legal practitioner from his firm commissioned the affidavits it was not in
contemplation of any legal proceedings and on the basis of that distinction the
case authorities cited by Mr Chikumbirike
were thus inapplicable. Furthermore the affidavits
were attested about a month before the institution of this urgent chamber
application.
Mr Mutamangira also submitted that had Mr Chikumbirike sough clarification before
raising the point in limine, he would
have been advised and shown proof that Mr Mutamangira
had properly been briefed by the Attorney-General. He would have realised that he had the
requisite authority to represent the fifth respondent in these
proceedings. He submitted that this is
not the first matter in which he has been briefed by the Attorney General to
represent various other clients or parties.
Mr
Mutamangira posed what he appeared to
intend to sound as a rhetoric question. He asked whether Mr Chikumbirike meant by his submission
that he would be disqualified from acting as a legal practitioner in
circumstances where he had given legal advice to a board of directors.
On
a perusal of the documents which are attached to the first respondent's
opposing affidavits and which were referred to by Mr Chikumbirike, it appears clear to me that Mr Mutamangira's and his firm's involvement cannot for the purposes of
these proceedings be said to be merely that of a legal practitioner. He has
participated in the pertinent affairs at a level that precludes him from
appearing for the respondents as a legal practitioner in these proceedings. One
clear instance is the attendance at the meeting of 19 October 2010 already
referred to above. Whilst in Central
African Building Construction Company (Pvt) Ltd v Construction Resources Africa
(Pvt) Ltd HH 112/2010 Gowora J was
faced with a different scenario, it appears to me that the observation that she
made at page 4 of the judgment can be made with the same aptness in casu. She said:
“… He
(a legal practitioner) has aligned himself so closely with his client's case
that this court can be forgiven for stating that he has displayed an interest
in the case going beyond that of a legal practitioner.”
Similarly,
the reference by Mr Chikumbirike to Bozimo Trade and Development Co (Pvt) Ltd v
First Merchant Bank of Zimbabwe
and Ors 2000 (1) ZLR 1 (H) is also apposite. The headnote reads in part:
“Held, that the legal practitioner should
be allowed to represent the company as agent of the company instead of its
legal practitioner. He was entitled to represent the company as its agent as he
was its alter ego, although he was
not the sole or majority shareholder in the company. However, he had such a
deep-seated perception of unfair play on the part of the respondents that he
might end up prejudicing the applicant's case by representing the company. It
would be better for him to hand over the case to legal counsel.”
CHATIKOBO
J at p4 of the judgment stated:
“....Although
Mr Kara is neither the sole nor the majority shareholder in applicant, his
association with and the extent of his interest in the applicant is such that
he should be permitted to represent the applicant. Although he appeared before me robed as
counsel, I ruled that he could only represent the applicant as its agent and he
did so on that basis”
In
the Central African Building Construction
Company (Pvt) Ltd case (supra), GOWORA
J stated at p 3 of the judgement:
“In Bozimo Trade and Development Co P/L v First
Merchant Bank of Zimbabwe and Ors, 2000 (1) ZLR 1 CHATIKOBO J in
considering an objection to the appearance as counsel in the matter before him by a chairman
of the applicant opined that due to the relationship of the legal practitioner
of applicant with the myriad affairs of the companies that he was chairman of
and with whose legal brief the legal practitioner was seized he would not
permit him to appear for the same counsel but would allow him to appear as an
agent of the applicants.”
She
proceeded at the same page:-
“....A
legal practitioner's duty is to protect the interests of his client and to give
legal advice. It is not the function of
the legal practitioner to then step into the shoes of the client and to perform
acts that are materially related to the dispute before the court in an
endeavour to buttress the case of his client...”
With
regards to the affidavits attached to Masimirembwa's opposing affidavit, in The Civil Practice of the Superior Courts
in South Africa 3rd Edition (Hebstein and Van Winsen) at p 443
the following is stated:
“An
affidavit should be sworn to before a commissioner of oaths who is independent
of the office in which it is drawn. The
court will not admit affidavits sworn to before an attorney or employee or
partner of an attorney acting for the deponent, or a person having an
interest in such affidavit”. (emphasis added)
The
authors refer to a number of case authorities in support of the highlighted portion
of the above quotation including Hersman
v Angilley 1936 CPD 386 wherein DAVIS J stated at p 387:
“I
said nothing about this affidavit yesterday because I wished to say nothing in
a hurry and desired to have an opportunity to think it over and to consult my
brother Judges.
This
affidavit is objectionable from every point of view. In the first place it was
taken before one of the partners of the firm of attorneys acting for the
plaintiff. It has been stated in this Court time and again that that is an
improper practice. I notice that as recently as the 11th November
last in the matter of Whyte's Stores v
Bridle N.O. and Others (1936, T.P.D. 72), PITTMAN, J., had occasion to go
into the matter somewhat fully, and came to the conclusion that an affidavit
taken under these circumstances is not receivable as evidence. However that may
be, clearly an affidavit should not be taken before a member of the firm who is
acting in the case.”
The
fact that the affidavits may have been commissioned at a time when no
litigation was contemplated does not in my view detract from the undesirability
of the firm in representing the respondents in these proceedings. If this had
not been realised or appreciated when the defence of the respondents was assumed
for purposes of this urgent chamber application, one would have expected that
as soon as the issue was raised by Mr Chikumbirike,
a concession would have been readily made.
In
the Central African Building Construction
Company (Pvt) Ltd case the following is stated at p 5:
“It
is important that a legal practitioner should at all time retain his
independence in relation to his client and the litigation which is being
conducted....”
It
was also stated in Chafada v Edgars Stores
Ltd and Anor 2005 (1) ZLR 299 at 300G, the following was stated:
“To
my mind, it is highly undesirable to either attest to an affidavit or sign an
urgent certificate for and on behalf of a client who is being represented by
his firm as such lawyer clearly has an interest in the matter at hand”.
In
my view, to the above statements may be added the age old saying that justice
must not only be done; it must be seen to be done.
With regard to the representation of
the fifth respondent Mr Mutamangira
said that he has the Attorney General's authority to so represent him. Mr Chikumbirike objected to the production
of the said authority by Mr Mutamangira
on the basis that the authenticity of the document would now be suspect as it
was sought to be produced at a very late stage of the proceedings. In my view
this particular aspect was not fully ventilated and insufficient information
was placed before the court such as to enable it to make any pronouncement on
it.
In
conclusion, in relation to the other aspects discussed above it seems clear to me
that Mr Mutamangira and the legal firm
Messrs Mutamangira & Associates cannot properly be allowed to continue
appearing as legal practitioners for and on behalf of the first and second
respondents.
I therefore uphold the preliminary
point raised by the applicant's legal practitioner to the extent stated above.
Chikumbirike & Associates,
applicant's legal practitioners
Mutamangira & Associates,
first, second and fifth respondents' legal practitioners
Hogwe, Dzimirai & Partners.
