CHEDA J: This matter involves the above legal
practitioner's conduct in court.
Mr Chivaura
(hereinafter referred to as “the legal practitioner”) is an admitted legal
practitioner of this court. He enjoys
all the rights and privileges of appearing before all the courts in the land
except the traditional and small claims court.
In accordance with the custom and practice of the High Court, the
Registrar of the High Court allocates criminal cases mostly murder to various legal
practitioners from time to time on a pro deo basis.
In the present case the legal practitioner was allocated the case of S v Bizeck Ndlovu CRB 66/10. The matter was set down for trial and as is
the procedure he drafted and submitted a defence outline stating accused's
version of the events which were designed to excuse his wrongful and unlawful
conduct which led to the deceased's demise.
For clarity's sake I hereinunder capture the said defence outline:
“IN THE HIGH COURT
OF ZIMBABWE HC
18/2010
HELD AT BULAWAYO
In the matter
between:
THE STATE APPLICANT
AND
BIZECK
NDLOVU ACCUSED
ACCUSED'S DEFENCE OUTLINE
1. The Accused person is facing a charge
of contravention of Section 47 of the Criminal Law (Codification and Reform)
Act Chapter 9:23 MURDER. It is alleged that on the 9th of
August 2006 and at Big Ben Farm, Gwanda, the Accused killed Dumolwenkosi
Nkiwane whom he found lying on a water tank whilst fetching water by holding up
his legs and pushing him face down into the water thereby drowning him.
2. Accused person will plead NOT GUILTY and shall put the state to
strict proof of its allegations. He
shall confirm having made a warned and cautioned statement freely and
voluntarily to the police and wishes to incorporate the contents of it as part
of his defence outline.
3. The accused person shall state that it
was not his intention to kill Dumolwenkosi Nkiwane and will aver the
following:-
3.1 That on the 9th August 2006
the Accused person had an altercation with Dumolwenkosi Nkiwane over fetching
water hereinafter named the Deceased which resulted in the Deceased assaulting
the Accused person with a stick three times.
3.2 The Deceased then proceeded to the water
tank to fetch water and whilst the Deceased was fetching water the Accused
person followed him to find him lying on the water tank fetching some water.
3.3 On arrival the Accused person held up the
legs of the Deceased in order to submerge his heads in the water for a short
period after which the Accused person let his legs go and fell into the water
tank. Accused person then left the
scene. The Accused had no intention of
killing him but rather sought to get back at him for the assault that the
Deceased had inflicted upon him which gravely provoked and incensed the
Accused.
4. In the foregoing, the accused person
will plead his innocence and pray for an
acquittal on the
charge of murder.
DATED AT BULAWAYO THIS 19TH DAY OF JULY 2010
................................................(Signed)
Mashayamombe
&Co, Attorneys
Accused's
Legal Practitioners
Suite
301, 2nd Floor, Salamaat Mews
9th
Ave/G. Silundika St.
BULAWAYO (MR CHIVAURA)
TO: THE
REGISTRAR
High Court of Zimbabwe
BULAWAYO
AND TO: THE ATTORNEY GENERAL'S OFFICE
Tredgold Building
BULAWAYO”
When the trial was about to commence
I was approached by both the State counsel Mr
Mabhaudi and the said Legal practitioner for accused who informed me that
the trial could not commence as the accused could not be located. I made an enquiry from the Legal Practitioner,
regarding the accused's whereabouts and he confessed that he had not seen the
accused and infact had not personally taken instructions from him. Asked as to how he had drafted such a
detailed defence outline without seeing the accused he stated that he had
relied on accused's warned and cautioned statement.
At the time of writing this judgment,
he had not seen his client. It is for
that reason that I was prompted to write this judgment.
This profession requires honesty,
integrity and professionalism. A legal
practitioner should be truthful, candid and fair in all his dealings with both
his client and the court. Mr. Chivaura was allocated a pro deo
matter, which he accepted, he was, therefore, expected to represent the accused
to his best ability. A charge of murder
is one of the most serious charges one can face, as upon conviction, accused
can receive capital punishment. That is,
how grave the offence is. For that
reason, any legal practitioner representing such a person should apply all his
mind in the case before him and employ all his skills in order to assist his
client. It is for that reason that he is
enjoined to personally take instructions from the accused who is his client.
A legal practitioner must perform
his duty with diligence and competence failure to do so amounts to
negligence. The type of failure referred
to above may amount to misconduct if it has a sting of impropriety.
With regard to taking instructions,
a legal practitioner must be reasonably satisfied of the clients' identity and
capacity to instruct which is the main reason why he should see him personally.
In casu the legal
practitioner drafted the defence outline without not only taking instructions
from the accused, but, without seeing him at all. According to him the defence outline was
based on the warned and cautioned statement accused made to the police. The accused's identity is extremely important
as the legal practitioner may end up taking instructions from a different
person. In addition, thereto and most
importantly, a legal practitioner should ascertain the competence of the
accused in giving instructions, as accused may be suffering from some legal
disability, for example disability arising from some mental illness.
It is, therefore, the duty of every
legal practitioner to advise his client on any aspects which call for advice. The advice must be given with complete
frankness and honesty. The legal
practitioner was assigned the accused (Bizeck Ndlovu) as his client, from that
time he assumed duty to act in the best interest of his client. Surely, he cannot be said to have performed
his duty of frankly and honestly advising his client when he had not seen him.
Despite the seriousness of the
offence he did not seek audience with him, but, proceeded to mislead the court
into believing that the defence outline filed of record was a true reflection
of accused's version of events as per his instructions.
It is not necessary for me to delve
into the consequences of such material misrepresentation. What comes to mind is the contradiction which
may arise between his warned and cautioned statement and defence outline. No doubt, the trial court may adversely
conclude that accused is not a credible witness.
Therefore, a legal practitioner, who
misrepresents a client in this manner is in my view prima facie guilty
of unbecoming and unprofessional conduct. He was indeed negligent see Hayers v Bar Council 1981 ZLR 183 and in
re: Tapera Sengweni HB 45/08
(cyclostyled).
In light of the Legal Practitioner's
conduct in handling this matter, it will not be in the interest of both the
accused and justice for him to continue representing the accused.
The following order is therefore
made:
1. Mr Chivaura be and is hereby excused
from representing the accused (Bizeck Ndlovu) in this matter.
2. The
Law Society of Zimbabwe be and is hereby directed to investigate Mr Chivaura's conduct in this matter.
Criminal
Division, Attorney General's Office
applicant's legal practitioners
Mashayamombe and Company,
accused's legal practitioners
