ZIYAMBI JA:
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 practising legal practitioner had to be a member, or
practise under the auspices of, one of these bodies.
The effect of the Legal Practitioners Act 1981 was that all
practising 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 practise 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 practising
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 practising
certificates as “advocates” and commenced to practise 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.”(My italics
for emphasis)
The agreement between the appellants and the thirteenth
respondent was clearly contrary to s 4 of the Regulations. By joining
Advocates Chambers they were able to practise freely on their own
account. They were granted practising 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 s 4 of the Regulations.
The thirteenth respondent therefore acted outside its
powers by creating a system of pupillage which is not provided for in the Act
or 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 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
practising 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 practising 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 practise in terms of that letter. They
were, they claimed, not practising 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 practising on their own account as
principals in breach of s 4 of the 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 s 4 of the regulations. A determination of this
question would dispose of the appeal.
It was submitted by Mr Mahlangu for the Law Society,
that the appeal was academic since the appellants had already surrendered
the practising certificates (describing them as advocates) and had obtained
employment as legal assistants with firms of legal practitioners in compliance
with s 4 of the 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.
The provisions of s 4 of
the Regulations are mandatory. The appellants could not lawfully practise
as legal practitioners on their own account except in compliance therewith.
They would therefore have had to have been employed by legal practitioners of a
minimum of four (4) years standing for a period of three (3) years before they
could practise on their own account.
The fact that they accepted
briefs in their own names, charged their own fees and accounted to no one for
their time, was evidence that they were practising as principals on their
own account. The letter of admission from Advocates Chambers could
not legalise their unlawful conduct. The court a quo was
therefore correct both in its assessment of the law and in its refusal to grant
the order sought.
On the question of costs,
which normally follow the event, the respondents generously declined to pursue
their prayers for costs as prayed in their opposing affidavits.
In the circumstances the
appeal lacks merit and it is hereby dismissed.
GARWE JA:
I agree
PATEL JA:
I agree
Mtetwa & Nyambirai, appellants' legal
practitioners
Messrs Coghlan, Welsh and Guest1st, 4th,
and 11th Respondents' legal's practitioners
Lawman Chimuriwo3rd Respondent's Legal
Practitioner
Messrs Honey & Blanckenberg2nd, 5th,
6th, 7th, 10th and 12th
Respondents'Legal Practitioners
Messrs Gill, Godlonton & Gerrans15th Respondent's Legal Practitioners
