Chinyeze v The Law Society of Zimbabwe (8 of 2022) [2020] ZWSC 8 (11 June 2020)

1 Judgment No. SC 8/2022Civil Appeal No. SC 254/19 REPORTABLE

(7) MOSES SHINGIRIRO CHINYENZE v THE LAW SOCIETY OF ZIMBABWE SUPREME COURT OF ZIMBABWE GUVAVA JA, MAVANGIRA JA & MAKONI JA HARARE 11 JUNE 2020 T. Magwaliba, for the appellant N. R. Mutasa, for the respondent MAVANGIRA JA:

1. This is an appeal against the whole judgment of the Legal Practitioners’ Disciplinary Tribunal (the Tribunal), handed down on 3 April 2019 in which it ordered firstly, that the appellant’s name be deleted from the register of Legal Practitioners, Notaries Public and Conveyancers, secondly, that the respondent’s law firm be placed under curatorship for the administration of its trust accounts and/or business accounts and thirdly, that the appellant pays all the expenses incurred by the respondent in connection with the proceedings.

2. After hearing the parties on 11 June 2020 we dismissed the appeal with costs and indicated that our reasons for the decision would be availed in due course. Our reasons now appear hereunder.

2 Judgment No. SC 8/2022Civil Appeal No. SC 254/19 FACTUAL BACKGROUND

3. The appellant was admitted as a legal practitioner on 16 January 1985.

4. The respondent is the Law Society of Zimbabwe which is responsible for regulating the conduct of legal practitioners in terms of the Legal Practitioners Act, [Chapter 27:07].

5. On 30 January 2018 the respondent filed with the Legal Practitioners’ Disciplinary Tribunal an application for the deregistration of the appellant. The specific terms of the order sought were as follows: “IT IS ORDERED THAT:

1. In terms of Section 28(1)(a)(i) of the Legal Practitioners Act 27:07, the Respondent be deleted from the Register of Legal Practitioners, Notaries Public and Conveyancers in Zimbabwe;

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. 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 Legal Practitioners Disciplinary Tribunal may consider fit.

4. Respondent pay the expenses incurred by the applicant in connection with these proceedings”

6. The basis of the application was that the respondent was not a fit and proper person to remain registered as a legal practitioner as he had acted in an unprofessional, dishonest and unlawful manner, the specifics of which will appear in the narrative below.

7. On 30 October 2015, the respondent received a complaint on the conduct of the appellant from one Mrs Noreen Chikaka of Regional Executors and Trust (Private) Limited. She alleged that she had been appointed the executrix of the estate of the late Christopher Taruvinga Chimbumu on 24 May 2014. She indicated that before the 3 Judgment No. SC 8/2022Civil Appeal No. SC 254/19 demise of the said Christopher Chimbumu, he had been married to Florence Chimbumu but the two had since divorced.

8. The two had entered into a consent paper in terms of which they donated to their five children an immovable property known as No. 2 Wessex Drive, Cotswold Hills, Mabelreign, Harare. Pursuant to the consent paper, the appellant had been appointed by the Registrar of the High Court (the Registrar), as conveyancer for the purposes of transferring the immovable property into the names of the five children.

9. In terms of the order of the High Court, the transfer to the children was to be effected by 31 October 2007. However, this stipulation was not met. As at 22 August 2013, that being the date of Christopher Chimbumu’s death, the transfer to the beneficiaries had still not been effected.

10. In the course of her duties as the executrix of the estate, Mrs Chikaka sold the immovable property to one Joseph Ngondonga after having sought and obtained the consent of both the Master of the High Court and the beneficiaries. Mrs Chikaka appointed the appellant’s law firm to execute the transfer of the property to Mr Ngondonga as the appellant had previously been appointed as conveyancer before the death of Mr Chimbumu. She handed over to the appellant letters of administration and consent to sell from the beneficiaries, fees for rates clearance and capital gains tax clearance certificate so that he could facilitate the transfer.

11. The appellant then apparently instructed Mr Ngondonga to pay US$8 450,00 which amount was paid directly into the appellant’s trust account. The appellant was also said 4 Judgment No. SC 8/2022Civil Appeal No. SC 254/19 to have been paid for the transfer of the property during the lifetime of the late Mr Chimbumu. Despite these respective payments having been made, the transfer was not effected. Mrs Chikaka’s futile attempts to contact the appellant resulted in her writing a complaint about the matter to the respondent.

12. There was also, in the application, an allegation that the appellant had overcharged on the Government stamp duty and that such overcharged amount was never refunded to the purchaser. It was further alleged that after having been paid the said amounts, as at 31 May, 2015, the appellant’s trust account only had a balance of US$205.25 when no disbursements had been made in respect of the anticipated transfer. In the absence of a valid explanation, the respondent concluded that the funds were misappropriated, in breach of By-law 70E of the Law Society By-laws, 1982.

13. For these reasons the respondent prayed for the deregistration of the appellant as a legal practitioner, notary public and conveyancer on the basis that he was not a fit and proper person to remain registered. It was also on the basis that he had acted in an unprofessional, dishonest and unlawful manner in that he:  Failed to account to client or the purchaser;  Overcharged stamp duty;  Abused his client’s or purchaser’s trust monies;  Failed to update the client on progress and properly advise the client.

14. In his response to the allegations raised against him the appellant raised several points in limine . He stated that following the complaint by Mrs Chikaka, the matter was reported to the police and he was arraigned before the Magistrates Court for theft of 5 Judgment No. SC 8/2022Civil Appeal No. SC 254/19 trust property as defined in s 113 (2) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. After the close of the state case he had made an application for discharge and it was dismissed. He thereafter successfully filed an application for review before the High Court and was thus discharged at the close of the state case. He argued that in light of the discharge, the proceedings by the respondent’s tribunal were therefore inconsequential and unwarranted. He argued that pursuance of the matter would result in him suffering double jeopardy.

15. The appellant also raised the issue of res judicata and argued that the matter had already been determined by the Magistrates Court. He further raised the issue of prescription on the basis that the respondent had not taken action from 2015 when the complaint against him was made until 2018 when it filed the application before the tribunal.

16. The appellant also denied misappropriating funds, maintaining that all his actions were above board. He claimed that he had professionally appropriated the monies that had been paid by the purchaser for his fees in accordance with the Law Society tariffs. He also claimed that Mrs Chikaka, the beneficiaries and the purchaser had pressurised him to do a direct transfer of the property from Christopher Chimbumu to Joseph Ngondonga thereby disregarding the High Court order in terms of which the property had to be transferred to the children first. Furthermore, Mrs Chikaka had proceeded to seek the consent of the Master of the High Court without informing the Master about the High Court order. He claimed that he advised them that a direct transfer was prohibited by s 11 of the Deeds Registries Act, [ Chapter 20:05 ]. He, nevertheless, tried to effect such direct transfer but to no avail. 6 Judgment No. SC 8/2022Civil Appeal No. SC 254/19

17. It was also the appellant’s argument that the matter had been set down prematurely as the respondent’s response to his notice of opposition had raised a new issue which he was never given an opportunity to respond to. He further complained that the charges laid against him were not clear and it was not the duty of the tribunal to plough through the papers and try to establish what the respondent intended to charge the appellant for. He averred that the matter could not be resolved on the papers without adducing oral evidence as the charges had to be proved beyond reasonable doubt.

18. The appellant also argued that, of the money that had been paid by the purchaser, he took 80 per cent as legal fees and this amounted to $3 200 per transaction; therefore for the three transactions this amounted to $9

000. He argued that if the purchaser wanted transfer to be effected, he ought to have paid more money for the transfer fees, rates and stamp duty and all other related charges. He further argued that there was therefore lawful cause for retention of the money that was paid to him. He complained that the offence of overcharging was raised for the first time in the respondent’s heads of argument and he was never given an opportunity to address it, in his statement to the respondent’s Council.

19. After hearing the parties, the Tribunal granted the respondent’s application. The appellant’s point in limine on res judicata and double jeopardy was dismissed on the authority of Law Society of Zimbabwe v Douglas Mwonzora HH 306/18. For convenience, the pertinent portions of the judgment in the said matter state as follows at p3: “The third issue was that the respondent had been prosecuted in a criminal court and acquitted of contravening section 113 (2) (d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the allegations having been that he had stolen money due to Everson Shepard Dandadzi (the complainant in 7 Judgment No. SC 8/2022Civil Appeal No. SC 254/19 respect of paragraphs 4.2-4.3). Mr Maanda submitted that the allegations before the Tribunal are the same as those presented before the Regional Magistrate Court. Further, the proof required before the Tribunal in a matter involving theft is the same as in a criminal matter that is proof beyond reasonable doubt. The respondent referred to Law Society of Zimbabwe v Mugabe & Anor 1994

(2) ZLR 356 where it was held that proof beyond reasonable doubt is required in a charge of theft of funds. He therefore raised the defence of autrefois acquit.” And at p 9: “In other words, even where the legal practitioner is acquitted in a criminal court on facts relied on in a disciplinary hearing, the Tribunal is not precluded from hearing the disciplinary matter as long as the applicant is required to prove its case beyond reasonable doubt. Where a respondent before it has been acquitted of a criminal offence, the Tribunal will require the applicant to prove its case beyond reasonable doubt. Section 28(3) therefore allows for a respondent who may have been convicted of an offence to be referred to the Tribunal. This is recognition of the fact that proceedings in a criminal court and before the Tribunal are different processes for different purposes with different requirements despite arising from the same facts. Criminal proceedings are generally initiated by the police for breach of criminal law regarded as a wrong against society as a whole. Disciplinary proceedings are on the other hand initiated by the applicant with the aim of regulating the relationship between a legal practitioner and the applicant and maintain discipline in the legal profession. Had the proceedings been the same, a legal practitioner convicted before a criminal court would escape proceedings before the Tribunal on the basis that he/she would suffer double jeopardy. That is not the position. The defence raised by the respondent is therefore not applicable in the present disciplinary proceedings.”

20. The point in limine with regard to prescription was also dismissed on the basis that it was not applicable in casu . On the issue of the alleged premature set down of the matter, the Tribunal conceded that the matter had been pre-maturely set down but found that it would not render the proceedings to be improperly before it and was not prejudicial to the parties in any way.

21. The raising of the issue of overcharging stamp duty in heads of argument was found to be prejudicial to the appellant and consequently all portions of the papers on which the averment was contained were struck out. With regard to the issue of the lack of 8 Judgment No. SC 8/2022Civil Appeal No. SC 254/19 clarity of the charges levelled against the appellant, the Tribunal found that the respondent had not specified the conduct of the appellant that could be considered unprofessional and unworthy under s 23 (2) (b) of the Legal Practitioners Act. On the last preliminary point that the matter could not be heard without the calling of viva voce evidence, the Tribunal held that there were no material disputes of fact in the matter.

22. On the merits, the Tribunal found that apart from his mere say so, the appellant had failed to place any evidence before it to substantiate his defence. No transfer documents had been placed before the Tribunal to show that he had drafted any. No evidence was placed before the Tribunal to show that he had made a formal request to the Registrar of Deeds to make a direct transfer of the immovable property. The appellant also failed to produce invoices to show that he was accounting to the beneficiaries or the purchaser. In the absence of such evidence, which it considered to be fundamental, the Tribunal found itself unable to accept the appellant’s defence. On the issue of the appellant having allegedly taken 80 per cent of the money paid as his fees and his failure to produce before it the transfer documents that he claimed to have worked on, the Tribunal found the appellant had misappropriated the funds.

23. On the question of who was supposed to meet the payment of the transfer fees, the Tribunal found that the beneficiaries of the estate of the late Mr Chimbumu were supposed to cater for the transfer fees for the transfer from their parents to them. The purchaser would then meet the transfer costs for the transfer from the beneficiaries to him. The Tribunal also found that no evidence had been placed before it to show that the purchaser was, nevertheless, willing to meet the transfer fees for the two transfers. 9 Judgment No. SC 8/2022Civil Appeal No. SC 254/19

24. Having received money from the purchaser and thereafter failing to account for it, the appellant was found to be in breach of By-law 70E of the Law Society By-laws.

25. The Tribunal also found that the delay in the conveyancing of the property dated back to the time when Mr Chimbumu was still alive and had initiated the process of transfer of the property to his children. Mr Chimbumu had paid capital gains tax and had obtained the certificate thereof, which certificate he handed to the appellant. He had also had the property valued. The Tribunal found that there was no meaningful explanation as to why transfer had not yet been effected by the time that Mr Chimbumu died in 2013. On the basis of all these findings, the tribunal came to the conclusion that the respondent had established its case beyond reasonable doubt. Consequently, the application for the appellant’s deregistration was granted. THIS APPEAL

26. Aggrieved by the determination of the Tribunal, the appellant lodged this appeal on the following grounds and seeking the following relief: “GROUNDS OF APPEAL

1. The Legal Practitioners Disciplinary Tribunal (“the Tribunal”) erred in not finding that the premature set down of the application for deregistration of the appellant before the closure of pleadings was prejudicial to the appellant in the preparation of his case.

2. The Tribunal further erred in not finding that there were material disputes of fact which could not be resolved on the papers without leading evidence particularly relating to: 2.1 The amount and the purpose of a payment allegedly made by the late Christopher Chimbumu to the appellant; 2.2 The terms of the discussion between the appellant and the Registrar of Deeds; 2.3 The liability of Joseph Ngondonga to pay transfer fees for the three transfers, him having been liable for payment of occupational rent upon taking occupation of the property before transfer; and 2.4 Whether or not the appellant, who denied all the charges had abused the trust funds in issue, had not accounted for the funds, had not 10 Judgment No. SC 8/2022Civil Appeal No. SC 254/19 executed his client’s instructions or had failed to update his client on the progress of the matter.