GWAUNZA
DCJ
[1]
This is an appeal against the decision of the Legal Practitioners'
Disciplinary Tribunal handed down on 6 March 2019, ordering that the
appellant's name be deleted from the register of Legal
Practitioners, Notaries' Public
and
Conveyancers.
On
the day following the hearing in this matter, the court issued an
order dismissing the appeal with costs, and indicated that the
reasons for the order would follow in due course. These are the
reasons.
FACTUAL
BACKGROUND
[2]
The respondent is a statutory body established in terms of the Legal
Practitioners Act
(Chapter
27:07) (the 'Act').
It
is a regulator of the legal profession in Zimbabwe. The appellant is
a legal practitioner duly registered with the respondent. In 2013 the
Commercial Bank of Zimbabwe Limited ('CBZ Bank') sold a certain
piece of land called Stand Number 543 of the remainder of subdivision
D of the Grange Township to Mr and Mrs Jambo (hereinafter referred to
as 'the purchasers') for US$68,411 inclusive of value added tax
(VAT). CBZ Bank appointed Messrs
Muskwe
and
Associates
('Messrs Muskwe') as its conveyancers in the Grange Project under
which Stand Number 543 fell. The appellant is the principal of Messrs
Muskwe.
[3]
The purchasers secured mortgage finance from the Central Africa
Building Society ('CABS
Bank') in
the sum of US$54,911. On 19 December 2013, through the purchasers'
legal practitioners Messrs Wintertons, the appellant received a
letter of undertaking from CABS Bank for the payment of the sum of
US$54,911. This amount fell short of the required total by US$9,546,
which was to be paid by the purchasers. On 12 February 2014, the
purchasers paid US$8,753 to CBZ Bank instead of the full balance of
US$9,546. CBZ Bank sent the US$8,753 back to the purchasers,
indicating it would only accept the full purchase price. After the
refund, the purchasers did not transmit the money to the appellant.
The latter proceeded to effect transfer and registration of the
property into the names of the purchasers on 3 April 2014 under Deed
of Transfer 194/2014. This was before he had received the full
purchase price from CABS Bank
and the
purchasers. The appellant acted on the basis of the undertaking by
CABS Bank to pay US$54,911 even though it fell short of the purchase
price by US$9,546. On 23 April 2014 CABS Bank honoured its guarantee
and paid the sum of US$54,911 into the appellant's trust account.
The appellant, however, did not promptly remit the amount to CBZ
Bank.
[4]
As at 9 December 2014, the purchasers had not paid the full amount
required of them. The full purchase price of US$68,411 was eventually
paid into the appellant's trust account. However, it had taken the
appellant two years to secure the balance from the purchasers and pay
it to CBZ Bank. This process was, however, not without its own rough
patches. It appears that prior to 27 January 2016 the appellant and
CBZ Bank discussed the payment of the amount held in the appellant's
trust account. The appellant requested a grace period of up to 31
March 2016 to effect the required payment. CBZ turned the request
down. On 27 January 2016 CBZ Bank gave the appellant 7 days' notice
to effect full payment, failing which it would register a complaint
against him, with the respondent. On 15 February 2016 the Bank
through its legal practitioners wrote to the appellant indicating
that consequent upon his failure to comply with the directives and
the demands of the letter of 27 January 2016, it was going to
register a complaint with the respondent as well as institute legal
proceedings against him. Subsequently the Bank filed a complaint with
the respondent on 8 March 2016.
[5]
Before this date, the appellant made part payment of US$20,000 on 5
February 2016 leaving a balance of US$48,411. The balance was paid in
instalments of US$47,000 on 29 March 2016 and US$1,411 on 22 April
2016, both after the complaint had been registered with the
respondent. The latter then filed an application with the Legal
Practitioners Disciplinary Tribunal (the Tribunal'), seeking the
deletion of the appellant's name from the register of legal
practitioners in terms of section 28(1)(i) of the Act. This would,
effectively, mean that the appellant would be de-registered as a
legal practitioner. The respondent averred that the appellant by his
conduct in the course of his practice as a legal practitioner, was
guilty of unprofessional, dishonourable and unworthy conduct contrary
to what was expected of him in terms of the relevant provisions of
the Act and related Statutory Instruments. In particular, the
respondent charged that the appellant:-
“(a)
failed to pay promptly to his client, funds that had been deposited
in his trust account amounting to $68,411, when the money became due
and payable;
(b)
withheld payment of the funds without lawful excuse; and
(c)
failed to produce, despite demand, proof that he at all material
times held the said funds in his trust account.”
[6]
The appellant filed a counter statement disputing the allegations
against him. However, at the hearing of the matter before the
Tribunal, he pleaded guilty to all the charges against him and was
duly found guilty. He thereafter proceeded to address the Tribunal in
mitigation but to no avail. The Tribunal imposed the penalty of
deregistration.
Aggrieved
at this penalty, the appellant noted this appeal on the following
grounds, that I have taken the liberty to summarise:-
1.
The Disciplinary Tribunal erred and misdirected itself in taking into
account, and premising its findings on irrelevant, extraneous and
manufactured facts;
2.
The Disciplinary Tribunal erred and misdirected itself in the
outright dismissal of the Appellant's mitigation, and in finding
that migratory (sic)
circumstances
were only relevant for the purpose of making an application for
readmission to the Registrar of Legal Practitioners, Notaries Public
and Conveyancers.
3.
The Disciplinary Tribunal erred and misdirected itself by insisting
on the ultimate penalty in the face of weighty mitigating factors
pleaded by him, including his long blame-free legal career, full
restitution made and demonstrated contrition;
4.
The Disciplinary Tribunal erred and misdirected itself in failing to
consider the concessions made by the Respondent's Legal
Practitioner, that the facts 'squarely' before it did not warrant
the ultimate penalty.
5.
The Disciplinary Tribunal misdirected itself by misreading the facts
contained in the Appellant's opposing papers which clearly
indicated that the full purchase was done (sic)
sometime in 2015.
These
grounds of appeal in my view raise one issue for determination, which
is, whether or not the Disciplinary Tribunal erred in imposing the
ultimate penalty of striking out the appellant's name from the
register of Legal Practitioners, Notaries Public and Conveyancers.
[7]
The appellant avers that the Disciplinary Tribunal relied on
irrelevant, extraneous and manufactured facts. It is contended
through his first ground of appeal that the judgment of the Tribunal
demonstrates that it related to another person, not the appellant.
The appellant in his heads of argument however did not motivate this
ground of appeal nor did he make any further reference to it.
Accordingly,
the first ground of appeal stands abandoned and will not be
considered in this judgment.
WHETHER
OR NOT THE DISCIPLINARY TRIBUNAL ERRED IN IMPOSING THE ULTIMATE
PENALTY OF STRIKING OUT THE APPELLANT FROM THE REGISTER OF LEGAL
PRACTITIONERS
[8]
The appellant avers that the penalty imposed against him by the
Tribunal for the offences that he faced, was excessive in the
circumstances. He charges that the Tribunal in arriving at its
penalty, failed to properly weigh the mitigating circumstances of the
case against the aggravating factors thereof. In his view, the court
over-emphasised the latter.
The
respondent, to the contrary, maintains the position that the Tribunal
in imposing the penalty in question, exercised its discretion in a
judicious manner and properly ordered that the appellant's name be
struck out from the Register of Legal Practitioners, Notaries Public
and Conveyancers.
Given
that the appellant pleaded guilty to all the charges laid against
him, the respondent correctly submits that the issue to be determined
is whether the Tribunal was correct in finding that the appellant was
not a fit and proper person to continue practising as a legal
practitioner, and therefore imposing the penalty that it did.
[9]
The appellant effectively pleaded guilty to having misappropriated
trust funds. It bears mention that the amount involved, despite
having ultimately been transmitted to the client, was not
insignificant. A look at the relevant cases and other authorities
clearly suggests that courts of law take a very serious view of the
abuse of trust funds by a legal practitioner. Further, that lawyers,
as a class, generally hold themselves up to very high standards of
honesty, integrity and professionalism in the discharge of their
legal duties. In the case of Incorporated
Law Society Transvaal v Behrman, 1977
(1) SA 904 (T) at 905 H the court unequivocally stated that a
practitioner who contravened the provisions relating to his trust
account was guilty of unprofessional conduct and liable to be struck
off the roll or suspended from practice. The court in Law
Society, Transvaal v Matthews 1989
(4) SA 389 (T) at 394 expressed the same sentiments as follows:
“I
deal now with the duty of an attorney in regard to trust money. …
where trust money is paid to an attorney it is his duty to keep
it in his possession and to use it for no other purpose than that of
the trust. It
is inherent in such a trust that the attorney should at all times
have available liquid funds in an equivalent amount. The very essence
of a trust is the absence of risk. It
is imperative that trust money in the possession of an attorney
should be available to his client the instant it becomes payable.”
(my
emphasis)
[10]
Concerning the high standards that lawyers themselves have set up for
themselves, this Court in Chizikani
v Law Society of Zimbabwe 1994
(1) ZLR 382 (SC) had this to say:
“In
the first place, lawyers as a professional class live by their own
high code of ethics and their own moral standards.
Every
legal practitioner owes a duty to his colleagues to uphold those
standards of the profession to which he belongs.
Secondly,
if legal practitioners, as a professional group, are to earn a
respected position as guardians not only of the public, but also
private interest, then every legal practitioner must live up to the
principles of decency in the relationship of a trustee to the goods
and monies entrusted to him by the person who has sought this
protection. A legal practitioner who breaches this trust casts a
shadow on the good name of the rest
and also remains a danger to the unsuspecting public, unless his name
is expunged from the register of legal practitioners. (See generally
in this regard
Law Society, Transvaal v Matthews 1989
(4) SA (T) at 394 B-396H.).” (my
emphasis)
It
is therefore against the principles set out in the authorities cited
above, that the appellant's submissions in impugning the 'ultimate'
penalty that the Tribunal imposed on him, will be considered.
[11]
It is evident from a reading of the judgment of the Tribunal that it
considered both the mitigating and aggravating circumstances of the
case, and related to pertinent authorities, before imposing the
penalty in question. The Tribunal stated as follows: -
“Turning
to the sentence, in arriving at the appropriate sentence, the
Tribunal takes into account the mitigating and aggravating
circumstances as advanced by the respective legal practitioners.
The
Tribunal takes note of the submissions by the respondent's counsel
that the accused is 58 years old and was therefore 54 years old at
that time of commission of the offence. He has been in practice for
33 years (29 years at the time of the commission of the offense).
During this period, he has travelled the straight and narrow. He is
suffering from high blood pressure and has been traumatised by the
case. He paid the amount due to the complainant as far back as 2016
and there is no longer any prejudice to the complainant. The
conviction should be considered as a speck on his otherwise
colourless career. The respondent prayed that he be suspended from
practice for a period of between 18 and 24 months wholly suspended
for a period of five years on condition that he does not offend
again. In addition, the Tribunal should order that the respondent
does not, during the period of suspension operate a trust account. In
support of the proposed sentence, Mr Chinamora referred to The
Law Society of the Cape of Good Hope v Peter 2009
(2) SA 18 (SCA), Kwazulu-Natal Law Society, Northern Provinces [2006]
SCA 59 (RSA) where it was decided that the case did not warrant the
ultimate sentence of deregistering the legal practitioners.
The
applicant submitted in aggravation that the offence was a very
serious one which reflects badly on the respondent's honesty and
integrity and detracts from his fitness to continue practicing as a
legal practitioner. The respondent's conduct has a negative impact
on the integrity of the entire profession and should be visited with
a befitting sanction which is deregistration. Mr Mutasa referred to
the case of Chizikani
v Law Society of Zimbabwe
1994 (1) ZLR 382 (SC) at 390 C-E where the apex court confirmed the
decision of the Tribunal to deregister Mr Chizakini for
misappropriating trust funds.
As
rightly submitted by Mr
Mutasa,
the proper approach to be taken in arriving at an appropriate
sentence is set out in the Chizikani case (supra).”
[12]
In weighing the aggravating against the mitigating circumstances
argued for the parties, the Tribunal found (correctly in my view),
the following to be particularly damning of the appellant:-
“(i)
that the appellant's submissions in relation to his mature age, the
long and unblemished career spanning 30 years in the practice of law
and professionalism during that period 'cut both ways if not
sharper, in aggravation.'
(ii)
that with such credentials and being the principal of his law firm,
the appellant should have been more exemplary in his conduct;
(iii)
that his transgressions were 'compounded' by the fact that he
proceeded to effect transfer of the property to the purchasers
without securing the entire purchase price, a circumstance that
jeopardised the interests of the seller, since the balance of
US$54,911 was paid into his trust account well after the transfer;
(iv)
that the appellant thereafter failed, and with no reason given, to
remit this and the other amount paid by the purchasers to CBZ Bank,
only doing so after some two years, and even then, after demand, and
in instalments;
(v)
that as of 28 August, 2015, after the full purchase price was paid by
CABS Bank and the purchasers, the respondent's account reflected a
balance of only US$35,332,21, against the total required amount of
US$68,411, which showed that he no longer had the amount in his
account when payment was required;
(vi)
that in this respect no explanation was advanced by the respondent as
to what had happened to the client's funds;
(vii)
that the respondent, despite pleading guilty before the Tribunal, had
up to that point exhibited lack of contrition through his persistence
in defending 'the indefensible until the very last minute' and;
(viii)
that the amount of trust funds abused by the appellant was in no way
insignificant.”
[13]
It is my view that there is little if anything to fault in the
Tribunal's analysis of the evidence before it, nor in the manner
that it weighed the mitigating factors pleaded by the appellant,
against the aggravating circumstances of the case, vis
a vis
the appellant's conduct as a whole. I further find the reasoning of
the Tribunal as outlined above to be unassailable. The reasoning is
in tandem
with the plethora
of authorities in our jurisdiction and beyond (supra),
that make it very clear that a lawyer who abuses a client's trust
finds risks the ultimate penalty of being de-registered as a legal
practitioner.
[14]
Having found that the respondent's submissions in mitigation
'overlooked the shadow' cast by his conduct on the good name and
integrity of the rest of the legal profession, the Tribunal then
considered the consequences of the penalty that it went on to impose
on the appellant. It, in this respect, cited the following text from
the headnote in Die
Prokureursode van die O.V.S v Schoeman 1997
(4) SA 588 (O) at 589F:-
“The
consequences of an order of striking off are serious and far
reaching. But the facts usually determine the punishment, and even
the making up of a deficiency in trust moneys, deep remorse and
ignorance concerning book-keeping and basic business principles are
not
themselves sufficient to avoid a striking off order in all cases.
Those are, however, all factors in mitigation of punishment which
should be placed in the scales.” (my
emphasis)
[15]
In applying the above to the circumstances of the case before it, the
court found that the absence of an explanation by the respondent as
to what happened to his client's money, coupled with his lack of
remorse, exhibited a high degree of dishonesty. It also found that
his plea of guilty to all the charges levelled against him was a
clear admission that he had misappropriated the client's funds.
This conduct, the Tribunal opined, demonstrated that the appellant
was not a fit and proper person to continue in the practice of law.
[16]
Before finally imposing the penalty, the tribunal was fully cognisant
of the fact that it was not to be lightly imposed. It was guided in
this respect by the following remarks by HOLMES J (as he then was) in
Incorporated
Law Society, Natal v Naunde 1959
(1) SA 2 (N) at 3E:-
“In
matters of this sort the Court ever seeks to blend a measure of mercy
with the justice of punishment, and would readily agree in the
present case to an adjournment, or to a suspension of the respondent
instead of a striking off, if some basis for such a course could be
found. But unhappily the paramount factor in this case is the large
amount of deficiency, and this factor overrides the element of
restitution even if made. In the result, we are of the opinion that
our duty, painfully though it may be, is plain and we grant the order
sought by the Law Society for striking off of the respondent's
name, leaving the matter of restitution, if made, to stand as a point
in favour of the respondent, if and when he should apply for the
reinstatement of his name on the roll.”
As
already noted the Tribunal in
casu
also found that the 'deficiency' was not inconsiderable. In the
result, the Tribunal's view was that the conduct 'attracted'
nothing short of the ultimate penalty, which it went on to impose. It
also ordered the appellant to pay the respondent's expenses in
connection with the proceedings.
[I7]
I find that there is merit in the respondent's submission that the
Tribunal judiciously exercised its discretion, after a proper
consideration of the facts of the case and relevant authorities, in
imposing the penalty that it did, on the appellant. The court in Law
Society of the Cape of Good Hope v C 1986
(1) SA 616 (A) at 637B–C
reasoned
that the exercise of the court's discretion in matters of this
nature involves the weighing up of the conduct complained of against
the conduct expected of an attorney and, consequently making a value
judgment.
There
is nothing in my view to suggest that the value judgment that the
Tribunal made, against the facts and circumstances of the case
before it, was flawed in any way.
It
should be noted, in addition, that the discretion enjoyed by a court
of first instance in relation to a penalty that it imposes in cases
involving the misappropriation of trust funds by a legal
practitioner, is not one that an Appeal Court may lightly interfere
with (see Mutandi
case, supra).
The Appeal Court may only do so where it finds that the court of
first instance arrived at its conclusion capriciously, exercised its
discretion injudiciously or relied upon a wrong principle of law. See
Barros
& Anor v Chimponda 1999
(1) ZLR 58 (S) at
62G – 63A where
it was stated as follows:
“….
If the primary court acts upon a wrong principle, if it allows
extraneous or irrelevant matters to guide or affect it, if it
mistakes the facts, if it does not take into account some relevant
consideration, then its determination should be reviewed and the
Appellate Court may exercise its discretion in substitution, provided
always (that it) has the
materials
for so doing.”
[18]
Taking the foregoing into account, I am satisfied that in arriving at
the penalty that it imposed the Tribunal adopted the right approach
as set out above. This was after it had properly weighed the
aggravating against the mitigating circumstances of the case. The
court a
quo's
ultimate finding that the mitigation pleaded was outweighed by the
aggravating circumstances of the case is in my view not to be
faulted.
DISPOSITION
[19]
In light of the foregoing, the court found that no basis had been
established for interfering with the discretion exercised by the
Tribunal in imposing the ultimate penalty of striking the appellant's
name off the register of Legal Practitioners, Conveyancers and
Notaries Public.
The
appeal was accordingly devoid of merit, hence the order made by the
court, dismissing the appeal with costs.
MAKONI
JA: I
agree
BERE
JA: I
agree
Chikwangwani
Tapi Attorneys,
appellant's legal practitioners
