THE
LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
BHUNU
J:
The
applicant is a professional body for legal practitioners. It is
responsible for enforcing discipline among legal practitioners in
terms of the Legal Practitioners Act [Chapter 27:07], whereas the
respondent is a legal practitioner subject to disciplinary action in
terms of the Act.
On
6 May 2013 the applicant filed an application to this tribunal
seeking the deregistration of the respondent from practising as a
legal practitioner, prohibition from operating any trust or business
account and placement of his law firm under curatorship.
The
application was founded on the respondent's alleged numerous
malpractices and abuse of his trust account.
Scores
of his clients wrote to the applicant in its capacity as the
regulatory authority for all legal practitioners complaining of
various acts of professional malpractices committed by the respondent
which may be summarised as follows:
1.1
On 24 January 2012 the applicant received a written complaint from Mr
Kenias Chawadya alleging that the respondent had negligently failed
to appear at a hearing resulting in a default judgment being entered
against his company in a labour case. Despite having failed to
represent the complainant company at the trial, he was unable to
account for an amount of $18,980.00 deposited into the Deputy
Sheriff's trust account.
1.2.
When confronted he admitted liability and promised to repay the
money. He however fled to South Africa without repaying the money.
The money remains outstanding to date and the applicant's written
enquiries have enlisted no response from the respondent.
2.
On 17 May 2010 he is alleged to have accepted a brief from Elcombes
to represent them in an eviction case (but took no action to
represent his client). Despite having failed to account to the
complainant on progress made in the matter, when requested to
relinquish the file to substitute lawyers he refused claiming payment
but has since failed to bill the client for work he claims to have
done.
4.
On 12 March 2011 the applicant received a complaint from Gill
Godlonton and Gerrans, a firm of lawyers, to the effect that twice
the respondent negligently failed to file a plea on behalf of his
client Paul Gary Friendship resulting in the client being barred.
5.
On 14 November the applicant received a complaint to the effect that
the respondent had received $30,750.00 from Cindy Stains of Kennan
Properties for the purpose of paying utility bills. He however only
used $11,430.00 for the purpose and he converted the balance of
$19,320 to his own use. He then fled the country leaving his
co-partner to make good the loss.
The
respondent has no real defence to the allegations levelled against
him. His is more a plea for mercy rather than a defence of substance.
In
short his plea is that he committed the offences while suffering
under severe stress.
He
alleges that his ex-wife must have cast on him a spell which caused
him to misbehave in the manner alleged by the applicant. He then goes
on to narrate a host of misfortunes that befell him as a result of
the alleged spell cast upon him by his ex-wife.
His
hitherto flourishing furniture and gold purchasing businesses
suddenly collapsed. His driver was involved in a serious accident
while taking his daughter to school. Thankfully both escaped unhurt.
His professional assistant was however not so lucky as he sustained a
broken leg in a separate accident that night. A few days after the
freak mysterious accidents the mother of his son passed away in
Swaziland. He had to travel all the way to Swaziland for burial
arrangements. After attending to the burial, the vehicle used to
ferry his son to and from school mysteriously caught fire. In the
midst of all these misfortunes he got involved in a case in which his
clients and certain members of the CIO extorted large amounts of
money and vehicles from him.
The
respondent claims to have been so stressed as a result of all these
trials and tribulations to the extent that he completely lost control
of his mental faculties to the point of contemplating suicide.
As
a result he has no independent clear recollection of the events
surrounding the allegations against him.
Finally
he claims to have been involved in a stage managed accident and
haunted out of his office and the country by members of the CIO when
he crossed swords with a certain unnamed Minister of Finance during
which he was vasectomised.
In
conclusion after having narrated a litany of his misfortunes, the
respondent did not deny the allegations levelled against him but
pleaded for mercy and the benefit of another chance.
This
can best be illustrated in his own words at para 3(iv) when he says:
“The
Respondent has come a long way since the besetting of his problems.
He respectfully submits that applicant should have waited for the
progress on and completion of reimbursements of funds to Kenan
Properties in addition to waiting for the respondent to recover fully
as well as for the conclusion of the matter pending at the High
Court. However, the Applicant has seen it fit to institute these
proceedings and the Respondent leaves the matter in the able hands of
the Tribunal with a view to revisiting the matter once he has the
full wherewithal.”
The
respondent also admitted the fourth allegation levelled against him
by the applicant at p5 of the record of proceedings where he says:
“Ad
paragraph 4–6: Elcombes
In
this matter the Respondent accepts a level of blame for the manner in
which he responded to the letter that was written by Messrs Scanlen &
Holderness at the time. He recalls that upon discussing the matter
with Applicant he apologised in writing as well as in person at a
meeting that was held at his then office to the Legal Practitioner
concerned and did not expect this matter to be raised in this
proceedings (sic) because, again, after he gave his version of events
in correspondence that has not been attached to these proceedings he
was not officially notified of the applicant's verdict on the
matter. In fact the Respondent had hoped that this matter had been
concluded. Suffice to state that the Respondent hereby formerly
tenders an apology to both the secretary of Applicant and the
Tribunal regarding his conduct in this specific matter.”
The
respondent having made the above damning admissions of guilt it is
not necessary to exhaust all the allegations against him.
Suffice
it to say that s5(1)(f) of the Act requires a legal practitioner to
be a fit and proper person to practice law. He must be an upright
person whose character and handling of clients and trust funds is
beyond reproach.
By
his own admission the applicant can hardly be said to be a fit and
proper person to practise law.
For
starters he claims to be a psychiatric patient in need of treatment
and rehabilitation. He admits to having conducted himself in an
improper, dishonest, unworthy and dishonourable conduct in the course
of his duties.
It
does not seem to matter to me whether or not the misbehaviour was
occasioned by stress or psychiatric problems. The bottom line is that
he is not a fit and proper person to practise the noble profession of
law.
In
the result the application can only succeed. It is accordingly
ordered that:
1.
In terms of s28(1)(c)(i) of the Legal Practitioners Act [Chapter
27:07], the respondent's name be and is hereby deleted from the
Register of Legal Practitioners, Notaries Public and Conveyancers;
2.
The respondent be and is hereby prohibited from operating any trust
account or business account of his own accord in terms of the Legal
Practitioners Act [Chapter 27:07].
3.
The respondent's Law Firm be and is hereby placed under curatorship
to administer trust accounts or business accounts with such rights,
duties and powers in relation thereto as the Disciplinary Tribunal
may consider fit.
4.
The respondent pay the expenses incurred by the applicant in
connection with these proceedings at the Secretary of the applicant's
rate.
CHATUKUTA
J agrees ……………………….
The
Law Society of Zimbabwe, applicant's legal practitioners
Muhonde
Attorneys, respondent's legal practitioners
