MATHONSI
J:
This
judgment disposes of 2 applications.
HC11349/17
is an application made by Puwayi Chiutsi (Chiutsi), a legal
practitioner and officer of this court and as such occupying a very
privileged position in the justice delivery system, for an order
setting aside the confirmation of the sale in execution of his house
in Highlands Harare in pursuance of a judgment of this court granted
on 4 November 2014 in favour of Elliot Rodgers, a former client of
Chiutsi, in the sum of $70,000-00.
In
HC2650/18 is an application for a declaratur brought by Elliot
Rodgers against the Sheriff of this court and Chiutsi entreating this
court to declare that once the Sheriff has issued a determination in
terms of Rule 359(1) of the High Court Rules, 1971, the Sheriff is
obliged to pass transfer in terms of Rule 361.
The
parties agreed to argue the two matters at the same time as they are
intricately related and that both be disposed of by one judgment.
I
write this judgment with 10 court records, including 8 others which
are referred to in the 2 applications, all of which have either been
brought by Chiutsi himself or have been instigated by him seeking to
frustrate the execution of the judgment granted in favour of his
former client.
Mr
Biti
who
appeared for Rogers submitted that there are in fact a total of 15
such applications and 2 Supreme Court appeals. The only common thread
permeating through them being that Chiutsi has lost all of them
including the 2 Supreme Court appeals with costs at the superior
scale except in one application.
It
is a searing indictment to the legal profession of this country as a
whole and the Law Society of Zimbabwe in particular, which is the
administrative body reposed with the responsibility of regulating the
conduct of legal practitioners in this country, in light of the
undisputed allegations levelled against Chiutsi, that he is still
practising law.
Not
only that, he is in fact a senior legal practitioner entrusted, not
only with the running his own law firm, but also with the employment
and mentorship of budding young lawyers.
How
does an accusation of theft of large sums of trust money given to a
certified legal practitioner in his capacity as a conveyancer sit
well with such a legal practitioner and the entire profession?
How
does such a legal practitioner, exhibiting not a jot of shame or
contrition, contest anything and everything brought to court in an
effort to right the wrong he has committed (with pan intended)
without even attempting to construct a meritable case?
How
such a person is allowed to bring endless and indeed frivolous
applications going into double digits, designed to achieve nothing
else but to protect his booty is the mystery of our lifetime.
More
importantly, how and indeed why is such a legal practitioner still
enjoying pride of space among the rank and file in the noble
profession?
He
continues freely traversing the country masquerading as a legal
practitioner.
It
is disgraceful.
The
facts of this matter, as skilfully presented in the affidavits of
Rodgers, read like a soap opera or a script from an American
television legal drama and certainly nothing near reality.
Regrettably it is real.
Sometime
in 2012 Rodgers sold a piece of land in Mount Pleasant for a purchase
price of US$266,000-00. He instructed Chiutsi to attend to the
conveyancing aspect of that transaction which exercise entailed the
payment of the purchase price into the trust account of Chiutsi's
legal practice, which goes under the style P. Chiutsi Legal
Practitioners of Harare.
Although
conveyancing instructions were given to Chiutsi in mid 2012 and the
purchase price paid to him in August 2012 it was not until 10
September 2013, more than a year later, that he achieved the
otherwise simple and indeed clerical task of registering the
transfer. Meanwhile, about February 2013 Chiutsi had only paid a sum
of $150,000-00 of the purchase price to Rodgers leaving a balance of
$116,000-00. He later tried to appropriate most of it as his fees
despite him being entitled to a small fraction of that in terms of
the conveyancing tariff.
It
is that action which triggered the litigation which has unfolded over
the past 5 or 6 years. The bottom line being that Chiutsi did not
remit the full purchase price paid to him in trust for onward
transmission, less statutory deductions, to Rodgers. Despite being
ordered by this court to pay, a court order granted by consent, he
has not paid meaning that he converted the money to his own use.
As
the debt remained unpaid execution was levied.
The
Sheriff's forays against Chiutsi's movable property yielded
negativity and he submitted a nulla
bona
return. As a result, instructions were given to the Sheriff to
proceed against Chiutsi's immovable property being the Remainder of
Subdivision C of Lot 6 of Lots 190, 191, 193, 194 and 195 Highlands
Estate of Welmoed, also known as 41 Edgewan North Highlands, Harare
(the house).
This
happened after execution against Chiutsi's movable property had
been frustrated by endless unsuccessful interpleader proceedings as
real and imagined individuals including his wife Clara, lay claims
against the properties.
The
house was eventually sold by the Sheriff on 15 September 2016 with
Bariadie Investments being declared the highest bidder at the sum of
$270,000-00.
Naturally
Chiutsi objected to the sale in terms of Rule 359(1) on a number of
grounds chief among which being that he had filed an application in
HC8122/17 which was still pending and therefore in terms of Rule
348A(5d) the Sheriff could not take any further steps regarding the
sale.
In
strongly worded and inappropriate language he accused the Sheriff of
conducting “some clandestine consultations” with the Judge who
dealt with the matter.
As
it turns out case number HC8122/17 is a chamber application for
condonation of the late filing of a Rule 348A(5a) application.
That
provision allows an execution debtor whose dwelling has been attached
to make an application in terms of subrule (5b) for the postponement
or suspension of the sale. The application should be made within 10
days and apparently Chiutsi had not complied. The application in
question was opposed and the record shows that it was not prosecuted.
In
his objection to the Sheriff, Chiutsi also made reference to case
number HC8675/17, an application which he made in terms of Rule
449(1)(b) and (2) seeking an order declaring the sale of 15 September
2017 invalid.
It
was opposed and again never prosecuted.
He
argued that it was irrational for the Sheriff to proceed with the
sale. He also challenged the validity of the sale on the ground that
the property had not been advertised in terms of the Rules, that the
Sheriff had not complied with Rule 348A(2) in that he had not given
notice to the Secretary for Local Government and that the property
had been sold at an unreasonably low price. The price was
unreasonably low because on the date of the sale there was panic
buying of goods by members of the public and that the price for which
the property was sold was only equivalent to US$150,000-00.
He
did not elaborate.
The
Sheriff heard the objection and on 29 November 2017 he dismissed it.
Chiutsi
would not relent. He filed an application in HC11349/17 Form 29 of
which states that it is made in terms of Rule 359(9) presumably
meaning subrule (8) because it is the latter subrule which allows any
person aggrieved by the decision of the Sheriff to confirm the sale
in terms of subrule (7) to apply to this court by way of a court
application to have the decision set aside.
Surprisingly,
although Chiutsi maintains in his founding affidavit that the
application is in terms of Rule 359, he goes on to say that this in
fact an application for review and sets out the grounds for review in
para 9 of the founding affidavit, a total of 23 of them.
In
summary, he accuses the Sheriff of having “a personal relationship”
with Rodgers, suggesting corruption and of making “incoherent and
illogical findings”. He also accuses the Sheriff of failing to
control the proceedings during the hearing and being “intimidated”
by Rodger's counsel and having pre-determined the matter among a
raft of other accusations. The sale should not have been confirmed
because he was already challenging the attachment of the house in
HC649/17. That was another opposed application for the setting aside
of the attachment of the house on the ground that the nulla
bona
return was fraudulent.
While
making that claim, other than alleging that it is Rodger's lawyers
who instructed the Sheriff to issue it, Chiutsi did not point to any
movable property of his available for attachment to satisfy the
judgment as would impugn the nulla
bona
return. It is an application that has been left hanging but whose
existence has been used as an excuse to challenge the sale.
Chiutsi
also complained bitterly about being deprived an opportunity to make
representations to the Secretary of Housing in terms of section 15(2)
of the Housing and Building Act [Chapter
22:07].
He was prevented from doing so because the Sheriff did not notify the
Secretary of the attachment of the house.
That
accusation is unfounded because, by letter dated 12 July 2017, the
Sheriff notified the Secretary in terms of Rule 348A that the house
had been attached in execution of a judgment of the court. All that
Chiutsi was required to do was to make representations to the
Secretary. The fact that a copy of the letter in question was made
available to him late did not prevent him from approaching the
Secretary if he so wished.
What
is however a strain to the mind is that a complaint about that is
being made by a person of the standing of Chiutsi in the first place.
The
State set up a National Housing Fund in terms of section 14 of the
Housing and Building Act [Chapter
22:07]
for the purpose assisting genuine cases of indigency and inability to
settle debts by the less privileged citizens of this country who end
up losing dwelling houses to execution.
What
Chiutsi is saying is that he was a candidate for such assistance in
terms of which the Secretary should have settled the execution
creditor's claim from the National Housing Fund. Without
interfering with the prerogative of the Secretary to settle claims
from that fund I find it extremely difficult to fathom the use of
such a noble fund to satisfy or settle a claim arising from the facts
of this matter wherein a practising lawyer entitled to charge quite
high fees, in terms of his seniority, would be a beneficiary of a
fund such as that provided for in section 14 of that Act.
What
is even more repugnant are the circumstances under which the debt
arose, from an embezzlement of trust funds entrusted to Chiutsi as a
conveyancer by an innocent client.
Out
of what may rank as unbridled greed, he then appropriated a large sum
of $116,000-00 of trust funds for his own use as a result of which
the judgment sought to be executed was made.
In
my view, it would be the height of turpitude to use the National
Housing Fund set up in terms of the Housing and Building Act as
insurance cover for corruption and pilfering by lawyers unable to
resist temptation or to practise law in an honest and noble manner.
How
can a lawyer who is shown to have misappropriated trust funds in the
most despicable manner seek to shelter under a National Housing Fund
designed for genuine cases of inability to pay?
It
is unthinkable that someone would want to continue perpetuation this
strange sense of entitlement, not only to a client's money but also
having been caught with his hands deep inside the cookie jar, he
regards himself as being entitled to have his misdemeanour's paid
for by the State from tax payers' money.
The
Sheriff heard the objection to the sale which was made in terms of
Rule 359(1), a Rule which allows any person who has an interest in
the sale to request the Sheriff to set it aside on the ground that
the sale was improperly conducted or that the property was sold for
an unreasonably low price or on any other good ground. In other words
a party requesting the Sheriff to set aside a sale in terms of Rule
359(1) is confined to the grounds for making the challenge as are
permitted by that Rule. By the same token, when considering whether
to set aside or confirm the sale upon such a request, the Sheriff is
confined to considerations set out in that Rule. See Marfopoulos
v
Zimbabwe
Banking Corporation Ltd & Ors 1996
(1) ZLR 626 (H) in which the point is made with silky eloquence that
the rules concerning the sale of properties in execution are meant to
strike a balance between the need to protect a judgment debtor who
may be unfairly hounded to insolvency and homelessness on the one
hand and the need to ensure that the judgment creditor who has been
forced to go to court to obtain satisfaction of his debt secures just
relief. It is also crucial to ensure the reliability and efficacy of
sales in execution are upheld.
Those
are the principles which guide the Sheriff when considering a request
to set aside the sale.
His
task was made much the more difficult by Chiutsi electing to throw
everything into the fray with reckless abandon and without regard to
the grounds set out in the Rules. In the end quite a lot of
extraneous issues were raised which weakness continues to afflict the
judgment debtor's efforts even in the present application. In my
view the Sheriff admirably perceived the issues that fell for
determination and correctly captured the grounds relied upon by
Chiutsi as that:
(a)
The sale ought to have been stopped in terms of Rule 348A;
(b)
The house was not properly advertised;
(c)
There was no compliance with Rule 348A(2) relating to notification to
the Secretary of Local Government; and
(d)
The property was sold at an unreasonably low price.
In
his ruling dated 29 November 2017 the Sheriff impressively dealt with
those grounds and rejected them. He drew the conclusion that the sale
could not be stopped in terms of Rule 348A because Chiutsi had filed
his application out of time without condonation. In the absence of
condonation there was no application at all and therefore the sale
could not be stopped.
Regarding
the advertisement of the sale the Sheriff noted that it was properly
made in terms of the rules and that even the issue of the notice
(Chiutsi had argued that the sale was advertised the very same day it
was scheduled to take place), the Sheriff noted that the argument was
of no moment especially as the sale did not occur on that date but
was postponed to a later date.
I
have already alluded to the third ground that of notice to the
Secretary of Local Government. The Sheriff's view was that indeed
notice had been given in accordance with the rules. Although the
Secretary was notified she or he did not offer to satisfy the value
of the judgment from the National Housing Fund. The matter ended
there.
On
the house being sold for an unreasonably low price the Sheriff noted
that Chiutsi had not proved that assertion. He did not attach any
evidence to show that the price was unreasonable. He was mindful that
his was a forced sale which invariably attracts a lower price than
would be achieved through any other sale.
Chiutsi
opted to make the application to set aside the Sheriff's decision
to confirm the sale in terms of Rule 358(8). In typical Andy Capp
style, that cartoon character with a knack for falling into the same
canal every night on his way home after a heavy drink, Chiutsi fell
into the same trap of throwing in every conceivable argument he could
find. These included grounds like recusal which were never placed
before the Sheriff, whose decision is sought to be impugned. It
cannot be challenged on grounds not placed before the Sheriff in the
first place.
It
has been stated that like any other decision or proceedings, the
decision by the Sheriff to confirm a sale of an immovable property
can be taken on review before this court which has review
jurisdiction in terms of section 27 of the High Court Act [Chapter
7:06].
In
my view however, where the judgment debtor elects to approach the
Sheriff seeking to set aside the sale in terms of Rule 359(1) such a
judgment debtor would seem to have an election to approach this court
either on review in terms of Order 33 of this court's rules or to
make an application to this court in terms of Rule 359(8) to set
aside the decision of the Sheriff to confirm the sale in terms of
subrule (7) of Rule 359. Where however the judgment debtor elects to
proceed in terms of Order 33 by an ordinary review, such a debtor
cannot at the same time seek to rely on the grounds for challenging
the sale set out in Rule 359(1) like the unreasonableness of the
price achieved by the sale. He or she would have to rely on the
ordinary review grounds set out in section 27 of the Act and other
common law grounds. Of course an approach in terms of Rule 359(8) is
not and cannot possibly be available to one who has not requested the
Sheriff to set aside the sale in terms of Rule 359(1). That one's
only recourse is an ordinary review application.
It
occurs to me that a judgment debtor cannot combine grounds for
reviewing the Sheriff's decision set out in Rule 359(1) and
ordinary review grounds as appear in section 27 and the common law.
In
the words of Makarau
J
(as she was then) in Chiwadza
v Matanda
& Ors
2004 (2) ZLR 203 (H) at 206:
“The
approach to this court after a sale in execution has been confirmed
and in the absence of a prior approach to the Sheriff in terms of the
rules is in my view to be based on the general grounds of review as
provided for at common law. These would include such considerations
as gross unreasonableness, bias and procedural irregularities but
cannot include such grounds as an unreasonably low price or that the
sale was not properly conducted as provided for under the rules
unless such can be subsumed in the recognized grounds of review at
common law. It is my further view that this, which presents itself to
me as the second approach, only obtains after confirmation of the
sale but before transfer is effected to the purchaser.”
Unfortunately
the applicant has filed what appears to be a hybrid application which
purports to be one made in terms of Rule 359(8) including grounds
like an unreasonably low price. He has however proceeded to list
grounds for review in his Form 29 as required by Rule 257 as if this
is a review application in terms of Order 33. He has gone on to set
out grounds which include bias not provided for in Rule 359(1) and
not even argued before the Sheriff.
It
is just a maze of confusion.
I
accept, as stated by dube
j
in Nyadindu
& Anor
v Barclays
Bank of Zimbabwe & Ors
2016 (1) ZLR 348 (H) at 353 F-H;
“The
procedure envisaged by Rule 359 is that of a review of the decision
of the Sheriff by this court. The court is required to look at the
objections raised and test the decision of the Sheriff. Rule 359(8)
limits the grounds upon which this application may be brought to
those raised in terms of Rule 359(1) as objections. The High Court
sitting as Review Court, cannot enquire into questions that were not
raised initially as objections and deliberated on by the Sheriff. A
party who has failed to raise an objection at the time he challenged
the decision to accept a bid price with the Sheriff cannot raise the
objection in an application to set aside the Sheriff's decision to
confirm a sale.”
It
means that those grounds not raised before the Sheriff and therefore
not considered by him in his decision to confirm the sale which is
sought to be set aside cannot be raised for the first time before the
court.
In
any event my view is that the only meaningful ground worth further
consideration is that relating to the price. Discussing the issue of
the price in Morfopoulos
v Zimbabwe
Banking Corporation
Ltd
& Ors
supra,
at 633 C – E gillespie
j
said:
“The
price achieved is therefore itself taken as a reliable indication of
value. For these reasons there is recognised an onus upon the
challenger to prove that the price so achieved is unreasonably low. A
litigant wishing to discharge this burden must be fully prepared with
properly supported valuations of the property under consideration.
These valuations must reflect the upper and lower limits of the
suggested market price, so that the court might make a proper
determination whether the price achieved is unreasonable, that is to
say that it is substantially lower than would reasonably be
anticipated, given the expected range of prices, See Zvirawa
(supra)
at 17 D-E. The valuations that are commonly produced in such matters
frequently tend nowadays to essay an assessment of a forced sale
value. This is itself of some assistance to the court, in that one is
by such an opinion assisted towards a finding as to whether or not
the price achieved is what one would expect on a forced sale or
unacceptably disproportionate even to such lowered expectations.”
See
also Zvirawa
v Makoni
& Anor
1988 (2) ZLR 15 (S) at 18 D –E; Success
Auto (Pvt)
Ltd
&
Ors
v FBC
Bank Ltd & Anor
HH157-15 (unreported).
The
policy of the law on these sales is that sales in execution cannot be
undermined by ill refined and non-specific averments as the ones made
by Chiutsi. The rights of third parties who would have purchased
properties from the Sheriff should also be protected and cannot be
defeated by fanciful arguments as the ones made by Chiutsi relating
to the rate of exchange between the bond notes and the United States
dollar which did not make sense at all. It is not even clear how the
issue of that rate comes into it when he does not even suggest that
the third party paid the Sheriff in bond notes. He has not even
attached any alternative valuations to suggest that the house is
capable of being sold at a higher auction price or that the sum of
$270,000 for which it was sold is unacceptable.
I
conclude therefore that there is no merit in the application.
That
brings me to the second leg of the dispute, the application brought
by Rodgers for a declaratur. It is an application premised on Rule
361 requiring the Sheriff to give transfer of the property to the
purchaser immediately after confirming the sale.
Rodgers
takes the view that in light of the Sheriff having confirmed the
sale, he was obliged to give transfer to the purchaser.
Initially
the Sheriff gave instructions for transfer to be effected but
rescinded those instructions after receiving Chiutsi's application
made in terms of Rule 359(8). The application is opposed by Chiutsi
whose opposing affidavit is legendary by its brevity. Apart from
unnecessarily quoting Rule 359(8) verbatim, he only makes 2 sentences
in opposition, namely paragraph 6 thereof that:
“6.
Ad
Paragraph 82 -105
The
Sheriff's decision is not final when it relates to confirmation of
a sale in execution of an immovable property.”
He
then states in para 8 of the opposing affidavit:
“8.
The Sheriff's decision is thus not final it is subject to this
Honourable Court's confirmation.”
Litigants
should not oppose applications as a matter of routine even when they
have nothing to say.
The
step-by-step procedure for undertaking a sale of immovable property
by the Sheriff is contained in Order 40 of the Rules. It culminates
in Rule 361 which reads:
“Immediately
after the sale has been confirmed and the conditions of sale complied
with, the Sheriff shall proceed to give transfer of the property to
the purchaser against payment of the purchase money.”
The
rest of the rules deal with distribution of the proceeds of the sale
and the power of the Sheriff to effect transfer of the property to
the purchaser.
There
is nothing in the rules suggesting that a Rule 359(8) application
precludes the Sheriff from giving transfer as required by Rule 361.
In fact the Sheriff himself acknowledged as such in his report
submitted in response to Rodgers' application. He however gave a
reason for the practice of not proceeding with transfer once an
application for setting aside the sale is made. His report reads in
part:
“6.We
agree that we declined to proceed with the transfer because of the
filing of the court application for setting aside of sale in terms of
Rule 359(8). We are aware that the rules are silent on whether
transfer should proceed or not in such circumstances.
7.
The practice that has always been followed is that we do not proceed
with transfer of the immovable property once served with a court
application for setting aside of sale.
8.The
practice is informed by the following basis that we have had several
cases which proceeded with transfer and distribution of funds and the
court went on to set aside sales and thus requiring us (to) reverse
the judicial sale and retrieve funds which would have been
distributed pursuant to transfer.
9.
The practical challenges that are caused are that once an order
setting aside a sale is given the Sheriff would not be in a
favourable position to refund the full purchase price and other costs
such as Capital Gains Tax because funds would have been distributed
to the instructing attorneys and relevant authorities, who often
refuse to refund such funds.”
The
practice adopted by the Sheriff accords with common sense and good
order. In fact in a jurisdiction such as ours where even conveyancers
like the one who forms the subject of the present litigation appear
to hold sway, it is imperative that the proceeds of judicial sales be
handled with Solomonic wisdom and extreme care lest fresh and endless
litigation erupts after the sale.
I
have previously expressed a similar view, albeit in respect of
movable property placed under attachment and due for removal. See
Chihota
v
Munyariwa
& Ors
2014 (2) ZLR 206 (H) at 209 B – C.
In
other words it accords with logic to stay further action in execution
of a judgment to allow for a full and thorough investigation of any
claim tending to impact on the process of execution in order to avoid
a multiplicity of actions.
Mr
Biti
for
the applicant in the second matter (Rodgers) submitted that once the
Sheriff has dismissed a request to set aside the sale made in terms
of Rule 359(1) and confirmed the sale Rule 361 gives him no room to
manoeuvre but that he has to give transfer. It is only the court,
upon an appropriate application being made for suspension of
execution, which can stop transfer.
While
that is a correct reading of the rules, I take the view that there is
another overriding responsibility thrust upon this court to regulate
its own process. It would be inappropriate to grant a declaratur as
sought by Rodgers as it would open flood gates of chaos in the
process of judicial sales not easy to contain.
In
terms of section 14 of the High Court Act [Chapter
7:06],
at the instance of any interested party this court may inquire into
and determine any existing, future or contingent right or obligation.
The circumstances under which this court grants a declaratory order
are well settled. The approach of the court involves a 2 stage
inquiry;
(i)
during the first of which the court enquires whether the applicant is
an interested person in the sense of having a direct and substantial
interest in the subject matter of the suit which could be
prejudicially affected by the judgment of the court.
(ii)
The second stage of the inquiry involves the decision by the court,
notwithstanding the finding in the first stage that the applicant has
a direct interest, whether or not the case in question is a proper
one for the exercise of its discretion under section 14.
See
Munn
Publishing (Pvt) Ltd v
Zimbabwe
Broadcasting Corporation 1994
(1)
ZLR 337 (S) at 343 F–344 A–E; Gama
N.O
v Mpofu
&
Ors
2016 (1) ZLR 496 (H) at 498 E–G.
Discussing
what constitutes a proper case for the grant of a declaratory order
WILLIAMSON
J concluded
in Adbro
Investments Co Ltd
v Minister
of the Interior & Ors
1961 (3) SA 283 (T) at 285 C;
“I
feel that some tangible and justifiable advantage in relation to the
applicant's position with reference to an existing, future or
contingent legal right or obligation must appear to flow from the
grant of the declaratory order sought.”
See
also Johnsen
v Agricultural
Finance Corp
1995 (1) ZLR 65 (H); Reinecke
v Incorporated
General Insurance Ltd
1974 (2) SA 84 F (A).
It
occurs to me that this is not a case in which I should exercise my
discretion in favour of granting a declaratory order. Apart from the
advantages which would accrue to Rodgers, or is it the purchaser of
the immovable property, by virtue of pronouncements made by the
courts that where a sale of the property has not only been confirmed
by the Sheriff but transfer effected by him to the purchaser against
payment of the price it would be even more difficult to overturn that
sale, there does not appear to be any earth-shattering advantage to
Rodgers to have transfer passed to the purchaser pending the
determination of the Rule 359(8) application or any appeal thereof.
This is because confirmation of the sale by the Sheriff on its own
triggers reluctance on the part of the court to set aside the sale.
In this case I do not intend to do so anywhere.
See
Lalla
v
Bhura
1973 (2) ZLR 280 (G); Mapedzamombe
v Commercial
Bank of Zimbabwe
1996 (1) ZLR 257 (S) at 260 D.
Mr
Biti
submitted
that in view of Chiutsi's propensity to appeal any judgment without
the slightest chance of success as he has done previously do the
prejudice of his client, I must grant an order that an appeal against
this judgment shall not suspend the judgment. This obtains from the
inherent power of this court to regulate its process and to protect
it from abuse.
Mr
Zhuwarara
for Chiutsi did not oppose that request. In fact Mr Zhuwarara
opted not to make submissions at all for professional reasons.
The
conduct of Chiutsi throughout this sordid affair is one not for the
faint hearted and certainly cannot be defended by any self-respecting
legal practitioner, let alone an advocate of this court.
Chiutsi
has torn into smithereens every rule of ethics and professionalism on
which those that occupy the privileged position of practicing law
pride themselves with. Not only has he conducted himself in a
dishonourable and unworthy manner by misappropriating trust funds, he
has not shown any contrition at all as he has stood neck to neck and
eye-ball to eye-ball with a client from whom he snatched a large sum
of money for a lengthy period of time as he employed every trick in
the book to avoid paying what he unlawfully took from a client. He
has been an unwelcome but very regular visitor to the precincts of
this court with countless but frivolous applications which he has
disdainfully pursued with no other intention but to perpetuate an
injustice.
There
is merit in the application made by Mr Biti.
This
court has to protect not only its integrity but also the good name of
the profession that has endured a battering of gigantic proportions
at the hand of one of its own who appears to have completely lost
self-respect and the respect of the profession and indeed the courts.
The order to be made must come with a signature award of costs on a
legal practitioner and client scale.
In
the result, it is ordered that;
1.
The application for the setting aside of the decision of the Sheriff
to confirm the sale in execution made in HC11349/17 is hereby
dismissed.
2.
The application for a declaratur in HC2650/18 is hereby dismissed.
3.
Puwayi Chiutsi, the applicant in HC11349/17 and the 2nd
respondent in HC2650/18, shall bear the costs of suit on a legal
practitioner and client scale.
4.
This order shall not be suspended by any appeal by either party but
shall remain in force notwithstanding such appeal.
P
Chiutsi Legal Practitioners,
applicant's legal practitioners
Tendai
Biti Law,
2nd
respondent's legal practitioners
