Court name
Harare High Court
Case number
HH 236 of 2017
HC 6901 of 2014

Makari v Dende (HH 236 of 2017, HC 6901 of 2014) [2017] ZWHHC 236 (10 April 2017);

Law report citations
Media neutral citation
[2017] ZWHHC 236
Coram
Mangota J

1

HH 236-17

HC 6901/14

 

CHARLES MAKARI

versus

GODFREY DENDE

 

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 30 March and 10 April, 2017

 

 

 

Opposed Matter

 

 

JR Tsivama, for the plaintiff

G. Madzima, for the defendant

 

            MANGOTA J: Law as a discipline has, for times immemorial, been manned by persons who conduct themselves with dignity and decorum; persons who respect the court as an institution of justice delivery. Such persons are professionals in their own right. They are learned colleagues. They share notes amongst and between themselves in the legal divide. They make concessions where such are warranted and they, with respect, agree to disagree in the interests of their respective clients where disagreement is, in their honest view, necessary.

            In Khuzwayo v Assistant Master of the High Court & Ors, 2007 (1) ZLR 34 (H) Bere J discussed the work of a legal practitioner and its importance to both the court and his client. The learned judge remarked at p 38 B-C in the following words:

“Legal practitioners are conduits through which litigants’ cases are properly put before the courts for determination. They are the professional servants of their clients. …. They are the agents through which litigants’ cases are dealt with because of their assumed expertise in the field of law.”

 

I cannot agree more or less with the learned Judge’s appropriate remarks. He summed

it up all for the benefit of not only the learned colleagues themselves but also the court as well as litigants. I would add that a legal practitioner‘s duty is first and foremost to the court because of the oath of office which he took when he was admitted into the profession of the learned. In stating as I am doing, I am not, in any way, suggesting that his role and duty to his client is of no significant importance. He will have accepted a brief and he must, therefore, endeavour as best as he can to always protect the interests of his client wherever and whenever such are at stake.

            The foregoing remarks should not be viewed or read in isolation. They are inextricably connected to the present case which is a classic example of what a legal practitioner, or a law practice, should not be.  

            As the background of the case unfolds, the plaintiff sued the defendant on 18 August, 2014. He claimed the following relief against the defendant:

  1. $100 000 being general damages for pain and suffering for injuries which he sustained in a car accident which occurred on 14 March, 2014. The accident, according to him, was caused by the sole negligence of the defendant.
  2. $3 664.17 being medical expenses
  3. $15 000 per month being future medical expenses – and
  4. costs of suit.  

The defendant engaged Nyawo Ruzive Legal Practice. This entered appearance to

defend on 26 September, 2014.

            The matter went through all the stages of an action with the law firm acting for, and on behalf of, the defendant.

            Before the case was set down for pre-trial conference, the registrar wrote to the plaintiff’s legal practitioners advising them of the directive of the court. The registrar’s letter is dated 7 February, 2017. It directed the parties to hold a round table discussion with a view to settling the matter or, where that was not possible, to defining the issues which would go to trial as provided for in Rule 182 (2) of the High Court Rules, 1971.  

The set down date of the conference was 30 March, 2017. The conference was to take place at 2:30 pm of the mentioned date.

            In anticipation of the conference, the Sheriff of this court served notices of set down upon the parties’ legal practitioners. Nyawo Ruzive Legal Practice received the notice on 23 March, 2017. The plaintiff’s legal practitioners received it on 27 March, 2017.

            For some unknown reason, Nyawo Ruzive Legal Practitioners were conspicuously absent from the conference. They offered no explanation- written or verbal - for their absence. A few minutes before the time of the conference, it was reported to me at the hearing, a messenger from Nyawo Ruzive Legal Practitioners handed to my clerk a document which purported to be a notice for renunciation of agency. The document was date-stamped 30 March, 2017. The Registrar of this court stamped it as such. It was handed to me during the conference.

            The document read, in part, as follows:

            “            NOTICE OF RENUNCIATION OF AGENCY

 

            TAKE NOTICE THAT Messrs Zvimba & Madzima Law Chambers hereby renounce agency             on behalf of the Defendant. The Defendant’s address for service is House NO. 4807 Glen        Norah A, Harare.

 

            Signed at Harare this 30th day of March, 2017

 

                                                Signature

                                    _________________

                                    NYAWO RUZIVE ATTORNEYS

                                    Defendant’s Legal Practitioners

                                    38 Northampton Crescent

                                    Eastlea

                                    HARARE (GM/rm)

 

            TO : The Registrar

            High Court

            HARARE

 

            AND

 

            TO: SAWYER & MKUSHI

            Plaintiff’s Legal Practitioners

            11th Floor, SSC Building

            Cnr Nujoma Street/ J Nyerere Way

            HARARE (JRT/ccm)”

 

            The notice, it is apparent, involved two sets of legal practitioners. These were Zvimba & Madzima Law Chambers and Nyawo Ruzive Attorneys.

            The notice did not tell who, between the two law firms, was renouncing agency. It was drawn in the name of Zvimba and Madzima Law Chambers. Nyawo Ruzive Attorneys, however, signed the notice as the law firm which had drawn the same. No one could tell what Nyawo Ruzive Attorneys wanted to convey by the stated confused set of matters.

            It was totally unwarranted for Nyawo Ruzive Legal Practitioners to draw a notice of renunciation of agency in the name of another law firm. They knew, as a fact, that the defendant was, at all material times, represented by them. He was never a client of Zvimba & Madzima Law Chambers. Their purported renunciation of agency in the name of another law firm was a nullity. It was an uncouscionable conduct which made no sense at all.

            The unpleasant conduct of Nyawo Ruzive Legal Practitioners placed me into a very invidious situation. They were in default and so was their client. The defendant was in default through no fault of his own. His legal practitioners created an untenable situation for him. They, as it were, abandoned him at the eleventh hour. They did not tell him that agency would be renounced by them or by the legal practitioner who represented him when he engaged their law firm. They knew from the time that they received the notice of set down that they would be required to attend the pre-trial conference on 30 March 2017.  They also knew that the defendant was to attend the conference with them on the mentioned date. They did not have the courtesy of advising the court or their client and/or the plaintiff of their position vis-à-vis the defendant from 23–30 March, 2017. They advised no one until the conference was at hand.

            During the conference, it became apparent to me that Mr. Madzima was dealing with the defendant’s case. He dealt with it when he was working at Nyawo Ruzive Legal Practice. He left that firm in April, 2016. He submitted as much when he, out of courtesy, appeared at court on 30 March, 2017. He stated that he left Nyawo Ruzive Legal Practice in April, 2016 and he joined Zvimba & Madzima Law Practice. He confirmed that the notice of set down was served upon Nyawo Ruzive Law Practice, his former law firm, which in turn, forwarded the same to him at his new law firm. He submitted that he wanted time within which he would discuss the issue of representation of the defendant with Mr. Nyawo as well as with the defendant. He stated that, when he left Nyawo Ruzive Law Practice, he handed all the files which he was dealing with, the defendant’s file included, to Mr Nyawo. He moved the court to postpone the pre-trial conference to a future date.

The plaintiff’s legal practitioner opposed the application for postponement. He submitted that the Registrar’s letter which directed the parties to hold a conference in terms of r 182 (2) reached his offices on 8 February 2017. He said he wrote Nyawo Ruzive Law Practice on the following day suggesting to the law firm that they meet on 28 February, 2017 as had been directed. He received no response. He submitted that, when he received the notice of set down, he called and spoke to Mr Nyawo who advised him that Mr Madzima who was handling the defendant’s case was no longer working with Nyawo Ruzive Legal Practice. He submitted, further, that he told Mr Nyawo that Nyawo Ruzive Legal Practitioners had not renounced urgency.  He insisted, and correctly so, that Mr Madzima had no right of audience to address the court on the matter. He moved the court to strike out the defendant’s defence and enter judgment for the plaintiff as claimed in the summons.

            Mr Madzima conceded, and properly so, that he could not, at that stage, represent the defendant. He said he came to advise the court of the background of the situation which was then at hand.

It is as clear as night follows day that Nyawo Ruzive Legal Practitioners caused serious inconvenience to the court, the plaintiff and the defendant. They did not conduct themselves with the dignity and decorum which befitted a law practice. They did not have any respect for the court and the plaintiff’s legal practitioners both of whom set aside all other work which they should have dealt with in preference to the pre-trial conference. They created a very difficult situation for the defendant who, because of the defective renunciation of agency, remains their client until they file a proper notice renouncing agency, if such is their intention.

            The fact that Mr Madzima left the defendant’s file with Mr Nyawo speaks volumes of the firm’s tardiness. It was totally misplaced for Nyawo Ruzive Legal Practitioners to send the notice of set down of the pre-trial conference to Mr Madzima. A fortiori when the law firm continued to retain the defendant’s file at its offices as Mr Madzima stated.

            I remained alive to the fact that the defendant required time to resolve the issue of his legal representation with Nyawo Ruzive Legal Practitioners. I was cognizant of the fact that he was not in default as those whom he had chosen to represent him did not advise him of the pre-trial conference date. I, in the interests of justice, allowed a postponement of the pre-trial conference to a future date.

            There was no doubt in my mind that the court and the plaintiff wasted their time when they prepared for a conference which never came to be. The fault lay wholly and squarely at the doorstep of Nyawo Ruzive Law Practice. The magnitude of the fault persuaded me to censure the law firm for its thoroughly reprehensive conduct.

            I reiterate, at this juncture, that a law firm and its clients enjoy an agency – principal relationship. That relationship is governed by rules which have become established over time and are known to all those who are in the practice of law.

A legal practitioner-client relationship is a contract which cannot be easily resiled from without any explanation or reason being proffered by the resiling party. A litigant who chooses a particular law firm is, because of the parties’ contract, bound to the law firm he has chosen until the latter, for its own unstated reasons, renounces agency.

Legal practitioners or law firms who/which abandon clients at the eleventh hour as happened in casu without proferring any plausible reasons for their conduct risk being visited with punitive costs for wasting the time of the court and that of the innocent party or parties. Legal practitioners and law firms should, therefore, take heed. The court will not take kindly to the observed misconduct. The court’s business cannot be allowed to be shelved on the basis that a legal practitioner or his law firm has decided to abandon its client at the eleventh hour and when the court and the other party are ready to proceed with the business of the day. A fortori when the abandonment is not accompanied by a plausible explanation for the same.

            The court considered all the circumstances of this case. It, accordingly, ordered that:

            1.         the pre-trial conference in the matter of Monica Idah Makari (NO) and      

                        Godfrey Dende be and is hereby postponed to 18 May, 2017 at 10 am.

2.         Messrs Nyawo Ruzive Attorneys be and are hereby ordered to pay the day’s wasted costs on a higher scale.

 

Sawyer & Mkushi, plaintiff’s legal practitioners

Nyawo Ruzive Legal Practice, defendant’s legal practitioners