Contempt of Court/Directions
CHEDA J: This is an
application for directions in the execution of the provisional order.
The salient facts of the matter are that applicant entered into a
lease agreement with respondents wherein he leased shop number 10
Njube Trading in 2003 and another shop in 2005 known as Jika Jika
Bar, restaurant and Grocery.
At the beginning of 2008 a rent dispute arose which resulted in this
application.
I granted the provisional order
on the 5 January 2009 and the Deputy Sheriff effected service on both
respondents. On the 6 January 2009, respondents filed a notice of
opposition and served it on applicants' legal practitioners on the
7 January 2009. On the same day, the 7th
day of January 2009 respondents filed a notice of appeal to the
Supreme Court appealing the interim relief.
On the advice of their legal practitioner that the appeal to the
Supreme Court suspended the provisional order, respondents
disregarded the provisional order.
Upon receipt of this information
applicants' legal practitioners contacted Mr.
Mangena who is
respondent's legal practitioners on the 12th
day of January 2009 in an attempt to resolve the misconception
regarding the effect of their “appeal”.
It is conceded by Mr.
Mangena that he
undertook to Mr. C.
Dube that the Deputy
Sheriff would be advised to proceed with the removal of the
respondents on the property thereby giving applicant vacant
possession. Mr. Dube
had brought to his attention that he was due to leave the country on
the 13th
day of January 2009. Mr.
Mangena
wrote a letter to Mr.
Dube's legal firm,
the contents of which are as follows:-
“13 January 2009
Messrs Dube-Banda, Nzarayapenga and Partners
Legal Practitioners
Bulawayo
Dear Sirs
RE: GREENFIELD
NYONI VS MRS. L. P EMISSIRY AND ANOTHER HC02/09, SC02/09 AND HC32/09
We are of the view that you used the wrong procedure in obtaining a
hearing date for HC02/09. Your application was for directions yet
your intention and draft order was to anticipate the matter. Be that
as it may, the matter did not take off on the said date.
We are also of the view that if you are aggrieved with the Notice of
Appeal filed by ourselves, you will have to file a separate
application challenging it. It is our respectful view that the said
Notice of Appeal cannot be dealt with within HC02/09.
We filed our Notice of Opposition in HC02/09. If the matter is to
continue, we believe you should file you answering affidavit. However
in our view, until the appeal is dispensed with, it is not possible
for HC02/09 to be heard.
If you believe our client is in contempt of court, we believe you
know the procedure.
Yours faithfully
(signed)
CHEDA AND PARTNERS”
Mr. Dube
has urged the court to give a directive in view of Mr.
Mangena's conduct as
he has assisted his client to be in contempt of court. The said
contempt is based on the following facts which are not in dispute:-
1. the appeal is a nullity.
2. the order he appealed against
is not appealable without the leave of the court.
3. did not approach him for a set
down date as per the court order.
4. to date he has not taken steps
to prosecute the appeal.
5. he has not paid the security
costs.
6. his clients remain in defiance
of a court order.
7. he has remained defiant up to
date.
In response to this Mr.
Mangena initially
became defiant until at a later stage of the proceedings when he
admitted that he did not act properly as he misled his client and
consequently expressed sorrow for what he did.
The fact that respondents are in contempt of court admits of no
doubt. The law is clear in this point, a person who is in contempt
remains so until he purges that contempt. Such a person cannot be
heard until the contempt is purged.
Mr. Dube
has urged the court to find Mr.
Mangena guilty of
misconduct.
In my view the misconduct
complained of was willful. In Lewis
v Great Western Railway Company
BRAMWELL L J (1877) 3QBD 195 at 206 defined it as follows:-
“'Willful misconduct' means
misconduct to which the will is a party, something opposed to
accident or negligence; the misconduct not the conduct must be
willful. It has been said, and that, I think, correctly, that,
perhaps, one condition of 'willful misconduct', must be that the
person guilty of it should known that mischief will result from it”.
The golden rule for misconduct for all legal practitioners is clearly
set out in Legal Ethics, E. A. L. Lewis at p8 where the learned
author states:-
“A practitioner must avoid all
conduct which, if known, could damage his reputation as an honourable
citizen.”
A legal practitioner has a duty to act honestly and fairly at all
times. In addition to this he must always be truthful and candid in
all his dealings.
Mr. Mangena
was not honest with his colleague when he mislead him into believing
that he would implement agreement that he would advise the Deputy
Sheriff to execute the provisional order. In fact all the
complainants listed by Mr.
Dube (supra)
are correct.
All I can say without more, is that this type of conduct is
deplorable and reprehensible. Legal practitioners are warned to
desist from this type of conduct, lest their professional careers
stand the risk of being brought to a complete halt. Lawyers as
officers of the court have an unfailing duty to obey court orders and
should not be seen to be assisting litigants in the said
disobedience.
I find that Mr.
Mangena actively and
persistently assisted his clients to do so.
Mr. Dube
has urged the court to award costs against Mr.
Mangena de
bonis
propiis
in view of his
misconduct.
I find favour in this submission.
Infact Mr.
Mangena at a very late
stage of the proceedings conceded that he had ill-advised his clients
to disobey the court order.
I am of the opinion that this is an appropriate case for costs of
this nature in order to show the court's indignation for such
willful misconduct by a legal practitioner.
The following order is made:-
(1) The provisional order issued
by this court on the 15th
day of January 2009 should be executed within 48 hours of this order;
and
(2) Mr.
Mangena should pay
costs of today's hearing de
bonis
propiis.
Messrs. Dube-Banda, Nzarayapenga and Partners applicant's
legal practitioners
Messrs Cheda and Partners, respondents' legal practitioners
