Hamunakwadi v Law Society of Zimbabwe (83 of 2021) [2021] ZWHHC 83 (4 March 2021)

1 HH 83-21 HC 1735/19 EDWIN HAMUNAKWADI versus LAW SOCIETY OF ZIMBABWE HIGH COURT OF ZIMBABWE MUNANGATI-MANONGWA J HARARE, 6 October 2020 & 4 March 2021 Opposed Matter Mr L. Madhuku, for the applicant Mr T. T. G. Musarurwa, for the respondent MUNANGATI-MANONGWA J: The applicant a registered legal practitioner has approached this court seeking a review of the decision of the respondent wherein the latter referred applicant’s disciplinary matter to the Legal Practitioners Disciplinary Tribunal. The applicant contends that the decision to refer his matter to the Tribunal violates his procedural rights in that the decision was biased, procedurally irregular and grossly irregular. The application is vehemently opposed. The background facts to this matter are as follows: During the course of performing his duties as a lawyer the applicant prepared an agreement of sale between his client and an Executor dative of a certain deceased estate. It is not in dispute that the purchase price in the sum of US$12000 was paid by the purchaser who incidentally is the applicant’s client. The applicant alleges that the parties agreed that the money be held by the applicant without banking it as the amount was to be handed to the seller after she had attended to certain procedures pertaining to the estate. Whilst transfer processes were underway the receipted amount is said to have been stolen when a burglary occurred at the legal practitioner’s premises. A report was made to the police and investigations carried out. The applicant alleges that he raised the respondent and the purchaser about the occurrence. The respondent later wrote to the applicant seeking clarification on the nature of the agreement. Apparently, the purchaser had also written an affidavit of complaint against applicant which was HH 83-21 HC 1735/19 received by the respondent. The applicant responded to both the Secretary’s query and the to the purchaser’s complaint. The applicant, purchaser and the seller later reached a settlement the details of which it is not necessary to delve into. The respondent was duly informed of the arrangement between the aforementioned parties in November 2018. The applicant proceeded to apply for his 2019 practicing certificate. Processing was delayed. It is only on 21 January 2019 when the applicant made a follow up with respondent on his application, that he was duly informed by the Executive Secretary of respondent, that, Council had made a resolution that all those legal practitioners who had their cases referred to Tribunal were not to be issued with practising certificates. It is only then, that he became aware that the complaint pertaining to the sale transaction had been considered by Council on 26 November 2018 and applicant was referred to the disciplinary Tribunal. On 22 January 2019 he was furnished with the Council resolution. It is this resolution that the applicant seeks to challenge by way of review. Suffice to say applicant was later issued with a practising certificate upon the intervention of his legal practitioner. Bias. It is the applicant’s contention that the decision to refer the matter to the Tribunal was biased. He relies on Council’s minutes and the communication from the respondent which advised of the Councils’ resolution to refer him to a disciplinary Tribunal. The complaint arises from this statement; “Council also noted that your conduct in handling funds from clients appears to be a recurring issue.” The applicant states in his application that this finding is clearly biased against him as he has never been convicted by the respondent’s Council of any misconduct pertaining to trust funds and is buffled how Council could have made such a finding except through bias. He further submitted that the “recurring cases have not been enumerated and yet on that basis the respondent” intends to submit him to the disciplinary tribunal. He contends that this bias is prejudicial to him. He states that he requested for a record of proceedings for the hearing to no avail. He further states in his affidavit that he has been practising as a Legal Practitioner, Conveyancer and Notary Public for almost 13 years and has never been convicted of abuse of trust funds yet, respondent makes a biased finding which is not supported by evidence that he has recurrent cases of abuse of trust funds. He also states that the bias by the respondent can also be read from its initial denial of his practising certificate until the intervention of his legal practitioner. HH 83-21 HC 1735/19 The respondent states in the affidavit prepared on its behalf that the present application is an attempt by the applicant to delay answering to the allegations of misconduct. It states that there was no agreement between the parties not to bank the money and it had prior to this incident advised legal practitioners not to keep monies at their offices. Further that S70F(1) of the Law Society By Laws 1982 S. I. 314/82 under part IX A relating to Book-keeping stipulates that money received by a law firm on behalf of any person shall be promptly deposited in the firm’s bank Trust Account. Failure to do so is improper conduct. It further submitted that reimbursement of the money does not expunge the misconduct. It thus argued that there was no bias against the applicant as he clearly failed to bank the money as stipulated by the aforementioned By law. The respondent stated that there was also failure by the applicant to issue a receipt for $500 that had been paid by the purchaser to the applicant in Rusape hence when Council referred to “recurrence” this did not mean any previous conviction but the conduct of the applicant as depicted from the facts of the matter before it. In response, the applicant denies that there was no agreement between the parties as regards the issue of not banking the money. He states that the respondent could not discard his version and reach a conclusion without adduction of evidence and without considering the agent and the seller’s positions. He maintains that since there was an agreement he did not breach the provisions of Section 70 F(1). He denies ever receiving the warning by the respondent for law firms not to keep large sums of money in their offices. He was never shown the resolution by Council to deny practising certificates to all those whose matters had been referred to the Tribunal. Neither was that resolution attached to the opposing papers. The applicant stated in response that there was no way the seller could have been given a receipt in Rusape as the books were at his office and the receipt was ready for collection in Harare and remained uncollected. Mr Madhuku for the applicant submitted that the test to be applied in determining the existence or absence of bias is “whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the decision maker has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.” See Leopard Rock Hotel v Walenn Construction 1994(1) ZLR 255 (S). He contended that the statement in the Council Minutes that “The Dec noted that the conduct of the Applicant in handling funds from clients appears to be a recurring issue” had no factual HH 83-21 HC 1735/19 basis and yet the respondent took that into account. Mr Madhuku submitted that there was no ‘recurrence’ and the reference to ‘clients’ was misleading as there was only one client in issue. He submitted that the persons who met in that meeting had a preconceived attitude on the applicant. There being no basis for the factual finding and on the decision, one can reasonably believe there was bias. Mr Madhuku emphasized that the argument by the respondent that the “recurrence” mentioned in the council resolution referred to the conduct pertaining to the single client was a desperate stance to cover up for the respondent’s lack of objectivity. In his submission Mr Musarurwa for the respondent submitted that the applicant had received an amount of $500 and had not issued a receipt. Thus when the issue of US$12000 which had been received and not banked came up, it occurred to council that the applicant does not adhere to By laws. He argued that there is no link between the decision that was made, and the conduct of the decision makers justifying a conclusion that there was bias. Mr Musarurwa further submitted that applicant does not state who exactly was biased against him as an institution cannot love, hate or be biased in favour or against someone. He argued that applicant did not deny that he did not comply with the by laws, his defence was that he made good the loss which is mitigatory. Mr Musarurwa submitted that there is no basis for alleging bias otherwise a party that fails to succeed in a matter will plead bias. Procedural Irregularities It is applicant’s case that upon receiving a complaint Respondent’s council is obliged to do a proper enquiry into the allegations raised to ascertain the authenticity of the allegations. The applicant contends that his response to the allegations raised by the purchaser raised critical issues which were never responded to by the purchaser up till the hearing of this case. These issues pertained to the real nature of the agreement, the reasons why the money was not banked and the developments that happened in the transaction among other things. The applicant contends that it is incomprehensible how the council reached a conclusion that he failed to keep proper books of accounts without a detailed response refuting the facts he had presented and without giving him an opportunity to be heard. He submitted that failure to call the parties to the transaction and making a conclusion constitutes a procedural irregularity. Further his views were not sought when the council decided to refer the matter to the tribunal. The applicant averred in his affidavit that failure by Council to take into consideration the settlement agreement that the applicant had with HH 83-21 HC 1735/19 the purchaser is also procedurally irregular. He stated that the purchaser Mr Mukonda admitted in the memorandum of agreement that the funds were supposed to be paid as hard currency which fact critically points to the nature of the original agreement, yet Council did not take this into consideration. The failure to consider that fact is deemed by the applicant to be irregular and much to his detriment and prejudice. The respondent denies that there were any procedural irregularities. The respondent states in its affidavit that in arriving at its decision, council took into consideration the response by the applicant and the allegations and the substance of the complaint. Of note is the respondent’s response as stated in paragraph 16 which reads” Section 63 of the Law Society By Laws sets out the possible actions by Council upon receiving a referral and recommendation from the Disciplinary and Ethics Committee.” The respondent argues therein that Section 63 does not provide for a hearing or enquiry. It is thus argued that applicant is legally misguided to believe that he should have been given an opportunity to be heard or that there should have been a hearing by Council. Rather, it is submitted, Council merely considers the findings and recommendations of the Disciplinary and Ethics Committee and makes a decision on those. The respondent averred that the settlement agreement does not expunge the misconduct and in any event applicant was duty bound to restitute that which was lost through his negligence so settlement is not an issue. Mr Madhuku for the applicant submitted that once Council believes that there is a prima facie case against a legal practitioner the legal practitioner must be given the right to be heard before the matter can be refereed to Tribunal. He argued that referring the applicant’s case to the disciplinary Tribunal without hearing the applicant’s views on whether or not to so refer was unlawful for want of compliance with S26 of the Act as read with S63(4) of the Law Society By- Laws, 1982 SI 314/82) hereinafter referred to as “the By-Laws.” He submitted that a legal practitioner facing a complaint must respond at two levels (i) as part of the investigation contemplated under s 26(1) of the Act and (ii) in response to the prima facie view of the respondent’s council under s26(2) Mr Madhuku submitted that this reading of the law is supported by By-Law 63(4) which gives council two options either to refer the case to the disciplinary Tribunal or to handle the matter itself. Hence a legal practitioner concerned must be heard vis the option to be exercised. It was HH 83-21 HC 1735/19 argued that failure to follow that process constituted an irregularity. Counsel submitted that it is procedurally wrong for Council to simply side with the complainant it must balance the protection rendered to the public and the member. Mr Musarurwa for the respondent submitted that the respondent followed the provisions of S26 (1) of the Act and the applicant was given an opportunity to respond. As this was an investigation rules of natural justice do not apply as an investigator is not an adjudicator. He argued that there was no way that the applicant could have been given an opportunity to make oral submissions as it is not provided for in the Act. He further submitted that what has been the procedure is that an opportunity is given to the complainant to respond to the initial written submissions by the legal practitioner under investigation. He further stated that the audi alterum partem rule varies with circumstances and in casu the Act provides for legal representation and nothing more. He refered to Metsola v Chairman public service commission & anor 1989(3) ZLR 147(SC). He submitted that the applicant’s rights are not infringed as he can call for evidence when he appears before the Tribunal. Mr Musarurwa submitted that the applicants are not indicating factors which they could have raised if given the opportunity to make submissions, which factors would have been considered leading to a different decision. In response Mr Madhuku maintained the stance that after investigations s26(2) provides for an opportunity to the affected legal practitioner to make written representations regarding whether or not the prima facie view is supported by evidence. He further maintained the position that the option under By Law 63(4) can only be made after representations by the affected legal practitioner. Gross unreasonableness The applicant maintained that the finding by Council that he did not keep proper books of accounts is grossly unreasonable. The applicant stated that the purchaser had been issued with a receipt from the trust account for the $12 000 he paid which is attached to the court papers. He questions what evidence council relied on to conclude that he did not keep proper books of accounts. It is applicant’s argument that even if it were to be said that he did not keep proper books of accounts, it is grossly unreasonable and extremely harsh to refer him to the disciplinary tribunal on a first conviction without asking him to mitigate for a lesser sentence which council has powers HH 83-21 HC 1735/19 to impose. The applicant further highlighted how he wrote to respondent twice requesting for the record of proceedings to no avail. He did not receive a response in the two instances. The respondent’s response on the issue of gross unreasonableness of the decision is brief. The respondent denies that the decision is grossly unreasonable and avers that applicant’s failure to bank money or issue a receipt to the complainant is failure to comply with book keeping regulations. The respondent maintained that the referral of the applicant’s case is based on a prima facie case being established hence it was proper. The Tribunal could well find in his favour. The respondent argued that the council minutes had already been supplied. Analysis An allegation of bias is one which needs to be closely looked at as same impacts upon the quality of justice dispensed. Justice must be seen to be done. Ensuring that justice is done s (s) 68 and 69 of the Constitution of Zimbabwe Amendment (No 20) Act 2013 provide for a right to administrative justice and a right to a fair hearing respectively. In the process impartiality is at the heart of a fair hearing. The test for bias was correctly articulated by Mr Madhuku in the aforegoing paragraphs. Simply put the court will enquire whether right-minded people would have entertained the likelihood of bias or the belief that the tribunal in question favoured unfairly one party and not the other. See Austin & Anor v Chairman, Detainees’ Review Tribunal 1986 (4) SA 281 (ZS). Thus where there is reasonable suspicion of bias or actual bias is proven the proceedings will be interfered with on review. However as Mr Musarurwa rightly submitted there has to be a link between the conduct alleged to form the basis of the allegation and one of the parties to the litigation. See G. Feltoe on Administrative Law of Zimbabwe. The renounced legal expert further states that the danger or suspicion of bias must be a real one and not “remote, fanciful, flimsy, far fetched or entirely speculative.” It is common cause that the applicant’s allegations of bias arises from the conduct and findings of the Disciplinary and Ethics Committee which were adopted by the respondent’s Council. The relevant passages which are an extract of the minutes of Council which reads: “a) The Dec noted that the Respondent violated section 70F(1) of the By-Laws. He cannot keep proper books of Accounts b)The Dec notes that the conduct of the of the respondent in handling funds from clients appears to be a recurring issue. HH 83-21 HC 1735/19 c) The Dec recommended that the Respondent be reffered to the Legal Practitioners Disciplinary Tribunal for an inquiry into his fitness to practice. Council adopted the recommendation.” This was followed by the letter from respondent which appears on p59 of the record with the Council’s resolution simply rubberstamping the position of the Disciplinary Committee. The court notes that the extract of the Council’s minutes do not show who attended the Council meeting. The minutes simply start with Agenda items of the day. The minutes do not show what contributions were made by the members regarding the Applicant’s issue. This being the case the allegations of bias could thus not be attributed to any particular individual but to Council. The question at hand would thus be, was there actual bias or reasonable suspicion of bias by any reasonable person. The findings by Council that the respondent could not keep proper books of accounts when the respondent had raised pertinent issues which complainant had not answered to raises questions of impartiality. Even if it were not to be considered so, the finding that the applicant’s conduct in handling funds from clients appears to be a recurring issue was not supported by facts. The decision was not based on information before Council as the incident only pertained to one client and there was no history of a similar occurrence. Given this, a reasonable person would be disposed to say that Council was not applying an impartial mind. The attempt by Mr Musarurwa to argue that the recurrence pertained to the single client is not sustainable. The letter from respondent on behalf of Council and indeed the findings of the disciplinary committee which was adopted by Council referred to “clients.” That the Council was biased towards the applicant is further buttressed by the withholding of the of the applicant’s practicing certificate which was only released upon the intervention of his legal practitioner. Council was considering the matter in terms of the mandate granted to it by Section 63 of the Society’s By laws. Section 63 under which the issue was considered reads: “63(1) When any matter is referred to it by the Disciplinary Committee in terms of By Law 62 the Council shall consider the matter and the disciplinary Committee’s findings and recommendations and shall proceed as hereinafter in this By Law set out. (2)If the Council Considers that further investigation is necessary before a decision can be taken, it shall refer the matter back to the disciplinary committee for further action in terms of By law 62, with such directions as it thinks fit. (3) If the council considers that a prima facie case of unprofessional conduct is not disclosed, it shall direct the Secretary to advise the complainant and the legal practitioner or legal assistant concerned accordingly. HH 83-21 HC 1735/19 (4) If the council considers that a prima facie case of unprofessional conduct is disclosed, and has satisfied itself that the legal practitioner or the legal assistant concerned has been afforded a reasonable opportunity to reply to the substance of the complaint it may- (a) refer the matter to the disciplinary tribunal for inquiry or (b)decide to adjudicate itself upon the matter, where for any other reason it considers that the matter should not be the subject of inquiry by the disciplinary tribunal, and shall thereupon take such action, including admonishing the legal practitioner or legal assistant, as it thinks fit.” Nowhere in the minutes does it show that the Council considered the matter in the manner contemplated by the By laws. By-law 63(1) is specific on what Council must do before it can decide on a course of action as specified in By-laws 63(2), (3) and (4). By-law 63(1) demands that “council shall consider the matter and the disciplinary Committee’s findings and recommendations…..” This is a serious process requiring full consideration of the matter, the findings and the recommendations. “Consider” is defined in the Oxford English Dictionary as “to think carefully about something typically before making a decision” and the Black’s Law Dictionary defines “consider” to mean “examine carefully.” That thought process is not apparent from the minutes of Council which are nothing but a regurgitation of what was stated by the Disciplinary Committee. There is no indication that council was satisfied with the investigations or that it was satisfied that a prima facie case had been established neither is there a comment showing that it considered the findings made by the Disciplinary Committee. There is nothing to show what informed the respondent to adopt the course they did, given that there were two options as per 63(4) to either refer the matter to the Tribunal or to handle the matter itself. No comments were rendered by those attending as regards the course to be adopted given the options available. The importance of this process by Council is manifest in Section 26 of the Act which provides: “26 Council of the Society to refer cases to Disciplinary Tribunal (1) Whenever there is brought to the notice of the Council of the Society an allegation which might be the subject of an inquiry by the Disciplinary Tribunal, the Council of the Society shall have the power to call for such information and to cause such investigation to be made as it thinks necessary. (2) After investigation in terms of subsection (1) and allowing the person concerned to make written representations, the Council of the Society shall refer the matter to the Disciplinary Tribunal for inquiry and may appoint a registered legal practitioner to present a charge on the evidence relating thereto at the inquiry: Provided that— (i) if the Council of the Society considers that— (a) the conduct complained of would not, even if substantiated, constitute unprofessional, dishonourable or unworthy conduct; or HH 83-21 HC 1735/19 (b) for any other reason the allegation should not be the subject of inquiry by the Disciplinary Tribunal; the Council of the Society shall take such other action as it considers appropriate and may, after first allowing the person concerned to make written representations, admonish that person and order him to pay a penalty not exceeding two thousand dollars which shall be payable to the Society;” Thus both the By- laws and the Act require the Council to seriously consider the allegations calling for more information or directing that there be further investigations if necessary. This process can only follow after the council has considered the matter before it to see if there are any deficiencies in terms of the available information. If satisfied to also reflect that satisfaction with the disciplinary committee’s consideration of the matter and the findings thereof. These processes are meant to safeguard both the complainant and the respondent by ensuring that a decision to refer the matter to tribunal is justified or that there is no case. The minutes do not show such a process manifesting. That in itself is a gross procedural irregularity. As there is nothing in the minutes to show how the ultimate decision to refer to Tribunal instead of the council dealing with the matter, that deficiency renders the decision irrational. Mr Madhuku submitted that before council could proceed to invoke by-law 63(4)(a) it was necessary to hear the applicant as per the audi ulteram partem principle to enable the applicant to make representations. That cannot be a correct interpretation of by-law 63. This is because by-law 63(4) obliges council to be satisfied that the legal practitioner concerned has had a reasonable opportunity to reply to the substance of the complaint. It must be noted that council would have in the first place considered the matter and seen whether further investigations need be done as per by-law 63(2) before making a decision. At this juncture council is not an adjudicator and the applicant can still be heard at the tribunal where he can give oral evidence. As Mr Musarurwa rightly stated, rules of natural justice do not apply at this stage. The by-law refers to an opportunity to reply to the substance of the complaint which the applicant had. Given the court’s finding that there was gross procedural irregularity that vitiated the council’s proceedings it is not necessary to deal with the rest of the grounds for review particularly that, the finding pertaining to keeping books of accounts was grossly unreasonable. Apart from this issue touching on the merits, once the manner in which the decision to refer the matter to Tribunal has been condemned this ground becomes superfluous. HH 83-21 HC 1735/19 It being found that there was a procedural irregularity which vitiates the proceedings the application must succeed on that basis. Accordingly the following order is granted: 1. Respondent’s Council’s findings and resolution of the 26th of November 2018 against the applicant be and are hereby set aside. 2. Respondent to pay costs of suit Hamunakwadi and Nyandoro Law Chambers, applicant’s legal practitioners