In 1981, the legal profession in Zimbabwe was fused.
Prior to fusion, there were two categories of legal
practitioners, namely, attorneys and advocates. The latter could only operate
upon receipt of briefs by attorneys. The former, while they freely appeared in
Magistrates Courts, had no right of audience in the superior courts. The
advocates were governed by the Bar Association and the attorneys by the Law
Society. Every practicing legal practitioner had to be a member, or practice
under the auspices of, one of these bodies.
The effect of the Legal Practitioners Act 1981 was that all
practicing lawyers were called legal practitioners. They were all endowed with
the right of audience in the superior courts. Former attorneys began to appear
in the High and Supreme Courts, no longer fettered by the need to brief
advocates. The former advocates chose to continue with their previous mode of practice.
They remained at Advocates Chambers and communicated to the former attorneys
their intention to continue as before. As a result, what is now known as a de
facto Bar emerged and is still in existence today.
In 1999, the Legal Practitioners Regulations (“the
Regulations”) were published. Section 4 thereof provides, in part, as follows:
4. Practical legal training
after registration
(1) Subject to this section, a legal
practitioner shall not commence to practice as a principal, whether on his own
account or in partnership or association with any other person, unless he has
been employed as a legal assistant for not less than thirty-six months after
registration with a legal practitioner who has himself -
(a) Been in practice in Zimbabwe for
at least forty-eight months; and
(b) Been approved by the Minister
after consultation with the Council for Legal Education and the Council of the
Society…,.”
The appellants are legal practitioners who were registered
in terms of the Legal Practitioners Act. Shortly after their registration, and
this is common cause, the appellants applied to Advocates Chambers and were
admitted thereat as 'pupils'. It is also common cause that the appellants had
not, at the time of their admission to advocates chambers, completed the mandatory
(thirty-six) 36 months' employment in the service of a legal practitioner of
four years standing. The letter accepting their application stated as follows:
“I refer to your application for admission to Advocates'
Chambers as a pupil. I am pleased to advise that your application has been
successful subject to the following:
1. You will need to be issued with a valid practicing
certificate by the Law Society of Zimbabwe for the year 2012. If you present
this letter to The Law Society and pay the required amount you will be issued
with the certificate.
2. You will be subject to the Bar Rules and Constitution
and to the Constitution of the Advocates' Chambers. As an advocate you will not
be allowed to accept any work other than from a duly licenced legal
practitioner/attorney/solicitor.
3. You will be allocated a room in Chambers upon payment of
the required sum of money. You will be advised of the amount by Mrs Benn or by
the Honorary Treasurer in due course.
4. You will be a pupil under the supervision of the senior
members of these Chambers. All work which you return to instructing legal
practitioners must be signed by your pupil Master.
I take this opportunity to welcome you to the Advocates'
Chambers and hope that your association with the distinguished members of the
profession in this Chambers will assist you in your professional development.”
The appellants were issued with practicing certificates as
“advocates” and commenced to practice from Advocates' Chambers. In the
appellants' words, they complied with the following further terms and
conditions imposed on them by the Advocates Chambers (“the thirteenth
respondent”);
“They were to report to their pupil masters any matters on
which they required guidance and supervision;
They would be entitled to receive briefs and instructions
from law firms in their own name and
as pupil advocates;
Their master would countersign any work they had done as a
form of quality control;
They would be under the general supervision of other senior
members of the Bar and that in the unlikely event of being briefed to appear in
a matter in which their masters had been
briefed in opposition, any other senior member of the bar would countersign
such work;
That they would receive assignments from their masters or
any other member of Chambers and if the latter were satisfied with their input
they would be entitled to ownership of the documents, for example, heads of
argument;
They would have the right
of audience in all courts of law in Zimbabwe and all other quasi-judicial
hearings which allow for legal representation;
Their masters would
determine the duration of their pupillage taking into account their
performance, competence and general professional development. Until such time
as their masters indicated that they were ready to be 'weaned', they would
remain under pupillage.”…,.
The agreement between the appellants and the thirteenth
respondent was clearly contrary to section 4 of the Legal Practitioners
Regulations.
By joining Advocates Chambers, they were able to practice freely
on their own account. They were granted practicing certificates as “advocates”
by the fifteenth respondent (“the Law Society”), accepted briefs in their own names, charged their own fees and were
not accountable for their whereabouts to anyone, save that their work was
supervised by their “masters”. In their new position, as “pupil advocates”,
they were able to avoid the restrictions imposed on them by section 4 of the
Legal Practitioners Regulations.
The thirteenth respondent therefore acted outside its
powers by creating a system of pupillage which is not provided for in the Legal
Practitioners Act or the Legal Practitioners Regulations.
By accepting the appellants into Chambers, on the terms set
out in its letter, it was assisting the appellants to infringe the law. The
thirteenth respondent woke up to this fact and, in an attempt to redress the
matter without causing undue harm and distress to the appellants, held a
meeting of its members at which it revised the terms of the appellants'
“pupillage” in an endeavour to bring their arrangement within the confines of
the Legal Practitioners Regulations. The revised terms were embodied in a
document entitled “Regulatory Framework Governing Pupillage at Advocates
Chambers.” In terms thereof, the appellants could no longer be called
“advocates” and their practicing certificates would not describe them as
advocates; they could not accept briefs in their own names nor could they
charge fees in their own names; they could not appear in the superior courts in
the absence of their masters; their practicing certificates would bear an
endorsement that the pupils could only accept instructions under the
supervision of their masters; the
pupillage would be for thirty-six (36) months and the pupils were to account to
their masters for their whereabouts.
The Regulatory Framework was communicated to the appellants
under copy of a letter dated 22 August 2012. They were required to sign the
letter signifying their acceptance of the framework which contained the terms
on which they would thenceforth operate. They were to deliver the signed copies
to the thirteenth respondent by close of business on 29 August 2012
failing which their 'pupillage contract' would be deemed terminated with effect
from that date.
The appellants were highly incensed by the letter.
They considered the Regulatory Framework to be an
infringement of their rights. They refused to sign the letter and insisted on
their 'right', as set out in their letter of admission, to practice in terms of
that letter. They were, they claimed, not practicing as principals but as
'pupil advocates'. They maintained that they had a right to use the title
'advocate' which right could not be taken away by the thirteenth
respondent. They filed an urgent
application in the High Court seeking the following relief;
“TERMS OF FINAL
ORDER SOUGHT:
That you show cause to this Honourable Court why a final
order should not be made in the following terms:
1. The terms and conditions which applied to the applicants
at the time of their admission be and are hereby declared to be binding on the
Respondents.
2. The Regulatory Framework imposed on the applicants on 22
August 2012 be and is hereby declared a nullity.
3. The resolutions of the meeting of 7 August 2012 be and
are hereby declared null and void.
4. That the respondents who oppose the application pay the
costs.
INTERIM
RELIEF GRANTED:
Pending determination of this matter, the Applicant is
granted the following relief:-
1. The applicants' tenancy, at 13th Floor, Old
Mutual Centre, be and is hereby restored.
2. The respondents be and are hereby ordered not to
interfere with the applicants' practice in any manner contrary to the terms and
conditions which applied to the applicants at the time of their admission.
3. That those respondents who oppose the application pay
the costs thereof.”
The application was dismissed.
The learned judge was of the view that the appellants were
practicing on their own account as principals in breach of section 4 of the
Legal Practitioners Regulations.
It is against this judgment that the appellants have
appealed.
Thirteen grounds of appeal were raised by the appellants.
However, the crux of the matter is whether the court was
correct in its finding that the 'pupillage' of the appellants was contrary to
the provisions of section 4 of the Legal Practitioners Regulations.
A determination of this question would dispose of the
appeal.
It was submitted by counsel for the Law Society that the
appeal was academic since the appellants had already surrendered the practicing
certificates (describing them as advocates) and had obtained employment as
legal assistants with firms of legal practitioners in compliance with section 4
of the of the Legal Practitioners Regulations.
However, the appellants were of the contrary
view as, so they claimed, there were other Advocates Chambers from which they
could operate as pupils if the appeal was to be determined in their favour.
