MAKARAU
JP: On 25 August 2008, the
plaintiffs issued summons out of this court claiming from the defendants the
sum of US$3 872 123-00 together interest thereon at the rate of 6% p.a.
capitalized monthly and calculated from
1 February 2001 to date of payment in full. It was alleged in the
plaintiffs' declaration that the debt claimed arose from certain advances and
loans made to the defendants by the plaintiffs at the defendants' special instance
and request during the period 1 February to 9 November 2001. It was further
alleged that the total sum advanced and lent to the defendants amounted to $4
272 123-00 and that the defendants had repaid the sum of $400 000-00 leaving
the balance claimed. It was also alleged that at one stage, the defendants
deposited the sum of $3 508 000-00 into the account of the plaintiffs after
selling off a mine in the Democratic Republic of Congo, which deposit was
however reversed by the plaintiffs' bank leaving the defendants indebted to the
plaintiff in the amount of the claim.
The
claim was resisted.
After
being furnished with further and further and better particulars to the
plaintiffs' claim, the defendants filed their pleas.
In
the main, the first defendant denied the contract and averred that such a
contract would have required the approval of the exchange control authority
which the plaintiffs did not have. The first defendant further averred that he
was however aware of certain monies that were advanced by plaintiff to a
company that is registered and domiciled in the Democratic Republic of Congo
and in which he has some interests.
In
its plea, the second defendant denied the contract in toto and put the plaintiff to the proof thereof.
The
matter proceeded to a pre-trial conference where four issues were settled for
trial. I will paraphrase the issues as follows:
1.
Whether the second plaintiff should be a party to the
proceedings?
2.
Whether the contract of the loan was between the
plaintiffs and KMC Limited (a company registered and domiciled in the
Democratic republic
of Congo)?
3.
What amount if any is due to the defendants? and,
4.
Whether the lending of money by the plaintiffs required
the approval of the exchange control authorities.
The
trial of the matter was initially set down before me during the week commencing
18 May 2009. The trial was aborted by consent and for cogent reasons given. The
matter was then postponed to the 19th of September 2009.
During
the brief hearing conducted to deal with the postponement, the terse and
unusually stiff exchanges between counsel did not assume the significance that
they did when the hearing of the matter resumed.
Five days prior to the resumed
hearing of the matter, the plaintiffs' legal practitioners wrote to the
Secretary of the Law Society and copied the letter directly to me and to a
number of other addressees. In the letter, the plaintiffs expressed their
concerns over the fact that Advocate de Bourbon had been issued with a
practicing certificate for the year 2009 on the strength of the
misrepresentation that he was a partner in the law firm Costa and Madzonga and
that in their view, Advocate de Bourbon had no right of audience in the courts
of this country. The plaintiffs' legal
practitioners also highlighted their view that Advocate de Bourbon no longer
satisfied the residence requirement stipulated in section 5 of the Legal
practitioners Act' [Chapter 27.07], (“the Act”). The letter concludes by
requesting the Law Society to approach the courts in terms of section 6 (2) of
the Act for Advocate de Bourbon to be deleted from the register of legal
practitioners.
On
the same day, the plaintiffs' legal practitioners addressed a letter to the
Minister of Justice and Legal Affairs, enclosing to him a copy of their letter
to the Law Society and raising the same concerns with him. The letter ends by
inquiring from the Minister whether he had issued defendants' counsel with a
Residence Exemption Certificate in terms of the Act. Again the letter was
copied directly to me.
At the hearing of the matter, Advocate Uriri objected to the presence
of Advocate de Bourbon at the bar and
as representing the defendants. At the
time he raised the objection, he had not yet handed over to me the written
objection that the plaintiffs had filed earlier on in the morning. Taken by
surprise not by the objection itself but by the fact that it was being raised
before me as an issue in view of the approaches that had been made to the Law
Society and to the Minister, I briefly adjourned the matter and summonsed
counsel to chambers. It was then that I was furnished with the written
objection that had been filed with the court.
A copy of same was also served upon Advocate
de Bourbon.
In
the objection, the plaintiffs contended that Advocate de Bourbon had ceased to
be resident within Zimbabwe
and in terms of the provisions of the Legal Practitioners Act, he should not
have been issued with a practising certificate for the year 2009 unless he was
in possession of a residence exemption certificate issued to him by the
Minister.
In
view of the importance of the matter being raised by the plaintiffs, the
hearing of the objection resumed in open court. Again in view of the issues
that the plaintiffs were raising, the hearing had to be adjourned to enable
Advocate de Bourbon to respond in writing to the allegations leveled against
him. Mero motu, I directed that the
objection
be served upon
the Law Society with an invitation that the Society appear at the hearing of
the matter.
Advocate de Bourbon filed an affidavit,
prompting the plaintiffs to file an answering affidavit. The Law Society in
turn filed a document in which it laid out its position in the matter.
I
shall return to deal in detail with the nature and manner of filing of
documents in this matter when I deal with issues of procedure.
The
issue raised by the plaintiffs is very easy to understand and in my view
equally easy to determine. It is whether Advocate
de Bourbon continues to enjoy the right of audience before these courts in
view of his assumption of residence in Cape
Town, South Africa.
Put this way, the answer almost suggests itself and one would assume that this
is a matter that is capable of resolution outside a formal hearing and without
the unnecessary acrimony that accompanied the hearing of the objection.
Before
I proceed to determine the objection on the merits, I wish to express my
disquiet at the manner in which the objection was brought up and the heated
arguments that have been characteristic of the hearing. It is my hope that the
conduct of the parties herein will not set any precedent for future conduct in
this court.
Firstly,
I was disconcerted by the practice of the plaintiffs to write directly to me in
connection with the matter. It is a trite rule of professional ethics that the
parties to litigation do not enter into any correspondence with the presiding
judge. All correspondence to and from the court is through the office of the
Registrar.
Secondly,
while the plaintiffs had every right to write to the Minister in connection
with the matter, the fact that such a letter was copied to the presiding judge
acted as an open invitation to the Minister to enter into direct correspondence
with the court. I must however commend
the Honourable Minister for at least addressing his letter to the Registrar and
not directly to me. However, the contents of the letter, which were meant for
my attention, in my view ought to have been placed before the court in the form
of an affidavit and not an unsworn statement. The letter gave an opinion on the
applicable law
and the interpretation to be placed on that law. It concluded by requesting the
Registrar to advise me to be guided accordingly.
Such
in my view is the danger of requesting parties to correspond with the court
outside the parameters set by the rules of court.
Further,
it was clear to the plaintiffs prior to the hearing of the matter that the Law
Society had issued a practising certificate to advocate de Bourbon for the year
2009. The plaintiffs were challenging the validity of that certificate,
alleging that that it had been issued at best erroneously and at worst
fraudulently. Despite such knowledge, no
formal application was filed to have the practicing certificate struck down.
The
correct manner to approach the court to set aside the decision of the Law Society
to issue Advocate de Bourbon with a practicing certificate was clearly by way
of review. That this was not done in this matter is now common cause. The net effect
however of not following the correct procedures was the filing of an objection
to which no founding affidavit was attached, the filing of a voluminous
opposing affidavit by Advocate de Bourbon
in which he attempted to answer the objection both factually and on points of
law and a hastily filed statement by the Law Society which is neither an
affidavit nor heads of argument. I further have a floating letter from the
Minister, not attached to any affidavit and whose status in the proceedings is
not clear to me and to which no one made specific reference as to its probative
value or binding nature.
Be
that as it may, I proceeded to hear the objection on its merits in view of the
fact that the parties were desirous that I hear and determine the matter
despite my earlier misgivings as to the state of the papers filed of record.
As
indicated above, the plaintiffs objected to Advocate de Bourbon having the
right of audience in the matter before me. The plaintiffs were quite clear even
in the oral submissions by Advocate Bava
that they do not seek the deletion of Advocate
de Bourbon from the register of legal practitioners.
In
taking the objection, the plaintiffs contended that Advocate de Bourbon had
ceased to be resident within Zimbabwe
and in terms of the provisions of the Legal Practitioners Act, he should not have
been issued with a practicing certificate for the year 2009 unless he was in
possession of a residence exemption certificate issued to him by the Minister.
It
is clear to me that the plaintiffs have in their objection co-joined two issues
that are separate and distinct. These are the issues of normal residency and of
possession of a valid practicing certificate. In my view, the issue of normal
residency goes towards the registration and de-registration of a legal
practitioner whilst the issue of a valid practicing certificate goes towards
who, of the registered legal practitioners can have the right of audience
before the courts.
I
will explain.
Advocate Bava for the plaintiffs
submitted that I should seek guidance from the provisions of section 5 (1) of
the Legal Practitioners Act [Chapter 27.07], (“the Act”). In his submission, Advocate Bava was quite passionate about
the need for re-establishing the rule of law in this jurisdiction and how no
one should be above the law.
Section
5 (1) of the Act provides for the registration of legal practitioners in this
jurisdiction. Before the court can register a legal practitioner, it must be
satisfied that the applicant
(a)
has complied with the formalities laid down in the
regulations; and
(b)
possesses the requisite qualifications prescribed in
the rules made by the Council for Legal
Education and has had such practical experience if any, as may be prescribed in
the rules; and
(c) is normally resident in Zimbabwe or a reciprocating country
or has been granted a residential exemption certificate and
(d)
is of or above the age of majority; and
(e)
is not an unrehabilitated in solvent or has not
assigned his estate for the benefit of his creditors and
(f)
is a fit and proper person to be so registered.
(The emphasis is
mine).
The
issue before me does not however concern the registration of Advocate de
Bourbon as a legal practitioner. That was done in 1981.In my view, the issue
that arises in this matter is the admitted fact by Advocate de Bourbon that at
the time of the hearing, he was residing in Cape Town where he is leasing a flat in
Kenilworth Cape Town. In his opposing affidavit, he deposed that in November
2003, he relocated to Cape Town but always with
the wish that one day he would return to Zimbabwe and rejoin the Bar. That
he is no longer normally resident in Zimbabwe for the purposes of the
Act appears to me to be beyond dispute. The issue is the legal effect if any of
his loss of normal residency in Zimbabwe.
The
plaintiffs contend that the loss of normal residency in Zimbabwe by Advocate de Bourbon means that he
automatically loses his right of audience before the courts in Zimbabwe
and that any person can approach the courts for an order denying him such
right.
I
fear that I do not agree.
There
is no specific provision in the Act that bears out the contentions by the
plaintiffs. The provision of the law that appears to me to cover the situation
that Advocate de Bourbon finds himself in is to be found in section 6 (2) and
(3) of the Act. It provides:
“(2) The council of the Law Society may, where there is reason to believe that
a registered legal practitioner has ceased to be normally resident in Zimbabwe
or a reciprocating country and that such legal practitioner has not been
granted a residential exemption certificate, apply to the High Court for an
order calling upon the registered legal practitioner concerned to show cause
why his name should not be deleted from the register.
(3) Upon
the return day of an order granted in terms of subsection (2), the High Court
may, if satisfied that the registered legal practitioner concerned has ceased
to be ordinarily resident in Zimbabwe or
a reciprocating country or has not
been granted a residential exemption certificate, direct the registrar to make
the appropriate deletion from the Register.”
It further appears to me that in terms of the
law, when a legal practitioner ceases to be ordinarily resident in Zimbabwe or
a reciprocating country and has not been issued with a residence exemption
certificate, he or she may be deleted from the register of practitioners and
that such de-registration can be at the instance of the practitioner himself or
herself or of the Law Society. The letter from the plaintiffs' legal
practitioners to the Law Society correctly captures the legal position when it
requests the Law Society to approach the court for Advocate de Bourbon to be deleted from the register of legal
practitioners.
The
issue as to whether any person, including person such as the plaintiffs before
me can bring an application to this court under section 6(2) of the Act for the
de- registration of a legal practitioner is an interesting one and calls for
the examination of the rights of the public to bring in applications at common
law in the public interest.
The
issue does not arise before me and I do not have to determine the locus standi of the plaintiffs to bring
an application in terms of section 6 (2) of the Act or at common law for
de-registration of Advocate de Bourbon.
As I have emphasized above, the plaintiffs do not seek such de-registration.
They simply object to him having a right of audience before me in the trial of
their matter.
This
then brings me to the next issue raised by the plaintiffs.
It
appears trite to me that a registered legal practitioner to whom the Law
Society has issued a practicing certificate enjoys the right of audience in our
courts until the practicing certificate lapses by effluxion of time, is
lawfully withdrawn or is set aside on review.
It
is further trite that the issuance of practising certificates is a matter that
is in the exclusive administrative domain of the Law Society. Where the Society
has acted irregularly in issuing a certificate, the court can play the role of
oversight that it plays with regards to all inferior courts and other quasi
judicial tribunals. It is not the ordinary role of the court in this
jurisdiction to administer the issue of practising certificates to legal
practitioners even though these are registered as officers of this court.
I have above indicated that in my view, the
correct procedure to adopt in approaching the court for an order setting aside
a practicing certificate is by way of review proceedings. This will enable the
applicants in that matter to allege the ground upon which the decision to issue
the certificate can be impugned. I have already observed that this has not been
done in casu.
Having
been persuaded to deal with the matter on its merits, I have examined the
papers filed of record by the plaintiffs to see if there is a minimum basis
upon which I can regard the objection before me as an application for review. I
have taken the contentions by the plaintiffs that the practicing certificate
issued to Advocate de Bourbon for
2009 was issued on the false premise that he was practicing as a partner in
Costa & Madzonga, yet he has continued to openly practice as an advocate as
a basis upon which I can interfere with the administrative discretion of the
Law Society on review.
In
my view, the above may have constituted a recognizable ground for reviewing the
decision of the Law Society to set aside the practicing certificate issued to
Advocate de Bourbon as being grossly unreasonable. I may have been sufficiently
moved to set aside the practicing certificate on the basis that the decision to
do so on the basis of the application filed was grossly unreasonable.
I
deem it unnecessary that I embark on the exercise of condoning all the
departures from the rules that will be necessary in this matter to enable me to
convert the objection by the plaintiff into a review application as the
practicing certificate under probe has now lapsed by effluxion of time.
Practicing certificates in this jurisdiction are issued on a yearly basis. The
practicing certificate for 2009 is now invalid for other reasons and cannot be
used to enforce the right of audience before this court.
In
the result, I make the following order;
The
objection is dismissed with costs.
Mhiribidi & Ngarava, plaintiffs'
legal practitioners.
Athersotne & Cook, defendants' legal practitioners.
