Mutuke v Hwange Coal Gasification Co. Pvt. Ltd. & Anor [2025] ZWBHC 22 (14 July 2025)

1 HB 109/25 HCBC 1100/24 GUTAI LISA-MARIE MUTUKE Applicant And HWANGE COAL GASIFICATION COMPANY First Respondent (PRIVATE) LIMITED And GWINYAI TAMUKA MHARAPARA Second Respondent IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 14 JULY 2025 NDUNA J This is an application to strike out all processes and court filings made by or under the name and style of the second respondent, purportedly practising as Manase and Manase Legal Practitioners. The application relates specifically to proceedings under case numbers HCBC 371/24, HCBC 386/24, and HCBC 389/24, and is brought in terms of Rule 59(1) of the High Court Rules. BACKGROUND FACTS The dispute arose after Hwange Coal Gasification Company challenged the validity of court documents filed by the 1st respondent’s legal practitioner, Mr. Mharapara whose the 2nd respondent. The company argued that at the time of filing, the 2nd respondent was not in possession of a valid practising certificate, in contravention of sections 8 and 9 of the Legal Practitioners Act [Chapter 27:07]. These provisions clearly require that anyone practising law in Zimbabwe must be properly certified. On that basis, the applicant sought to have the pleadings set aside as invalid and further asked the court to award punitive costs against the respondents. HB 109/25 HCBC 1100/24 The facts of the matter are as follows, On 7 March 2024, the applicant filed an urgent chamber application under HCBC 371/24, which was granted by the Court. The first respondent opposed the relief sought in that matter and filed a notice of opposition through the second respondent, who purported to be acting under the name and style Manase and Manase Legal Practitioners. On 26 February 2024, the first respondent, still acting through the second respondent, filed an application for rescission of the judgment granted under HCBC 371/24. The applicant opposed that application, and in doing so, filed an answering affidavit on 22 March 2024, followed by heads of argument on 28 March 2024 both processes served and filed under the same legal representation. On the same date, 26 February 2024, the first respondent again, through the second respondent, filed an application under HCBC 389/24 seeking a stay of execution of the order granted in HCBC 371/24. This application was filed pending the resolution of a related matter under HCBC 386/24. While the applicant opposed that stay application, the court nevertheless granted interim relief in favour of the first respondent. It was only after these various processes had been initiated and contested that the applicant discovered that the second respondent, during the material period in which he acted and filed documents, was allegedly not authorised to practise law under the name and style Manase and Manase Legal Practitioners. According to the applicant, and as substantiated by Annexure D to the founding papers, the second respondent did not hold a valid practising certificate as required under Legal Practice Act as such, he was not entitled to act as a legal practitioner or to appear in court. HB 109/25 HCBC 1100/24 SUBMISSIONS BY THE PARTIES The applicant framed the issue not as a mere procedural irregularity, but as a matter of legality and professional accountability. The argument put forward was that allowing documents filed by an uncertified practitioner to stand would undermine the entire purpose of the Legal Practitioners Act which is to safeguard the standards of the profession and maintain public confidence in the administration of justice. Applicant referred to similar cases in jurisdictions such as Uganda and Malawi, where courts have taken a strict view, striking out pleadings filed by uncertified lawyers to preserve the integrity of legal proceedings. The respondents challenges both the legal and procedural basis of the application, noting, among other things, that the applicant itself had failed to meet certain filing and service deadlines. More importantly, they argued that striking out pleadings based solely on the lawyer's certification status would unfairly punish the litigants who had no way of knowing, nor any control over, their attorney’s regulatory compliance. The first and second respondents further contend that the Applicant waived her right to object to the irregularity by filing answering affidavits and participating in the proceedings. They cite Rule 43(2)(a) of the High Court Rules, which provides that a party who, with knowledge of an irregularity, takes a further step in the cause forfeits the right to object to the irregularity. ISSUES FOR DETERMINATION 1. Whether applicant waived her right by filing heads of arguments HB 109/25 HCBC 1100/24 2. Whether pleadings and processes filed by a person who was not duly certified to practise law should be declared null and void, and should be struck of the record. APPLICATION OF THE LAW TO THE FACTS Whether applicant waived her right to object to the proceedings by filing heads of arguements The second respondent in his heads of arguments avers that the applicant by by filing the aforementioned pleadings, the applicant waived her right to challenge the same. In Chidziva & Ors Zimbabwe Iron & Steel Company Co Ltd 1997(2) ZLR 368(S) KORSAH JA had this to say regarding the issue of waiver:- “The effect of the waiver of a legal right is to extinguish that right and any concomitant obligation. In order to establish a waiver, all that one must show is that the party has taken some step which is only necessary, or only useful, if the objection to the irregularities has been actually waived, or has never been entertained. However, the intention or conduct of the party waiving a right must be conveyed to the other party”. The court emphasized the importance of individuals being aware of their legal rights and the consequences of their actions. It highlighted that any waiver of rights must be made knowingly and voluntarily. In Mutual Life Insurance Co of New York v Ingle 1910 TPD 540, INNES CJ explained the legal position as follows at p 540: "It seems to me that the mere intention, a mere mental resolution to waive a right not communicated to the other party cannot in law constitute a waiver or renunciation of the right by HB 109/25 HCBC 1100/24 the person entitled to enforce it ... Until the intention to waive a right is communicated to the other party, or evidenced to him by some overt act, a change of mind is always possible and permissible. Otherwise a man might by an entry in his own diary, of an account of a casual conversation with a friend (quite unknown at the time to the party affected), find himself debarred from enforcing a right which on further reflection he was desirous of vindicating. After all, waiver is the renunciation of a right. When the intention to renounce is expressly communicated to the person affected, he is entitled to act upon it and the right is gone. This underscores that for a waiver to be valid, the individual must have full knowledge of the right being waived and must intentionally choose to relinquish it. It is trite law that one cannot waiver a right that he or is not aware of. Though the applicant indeed took steps by filing pleading documents his conduct was done unaware that there was a possibility that the second respondent did not have a valid practicing certificate. Hence we cannot conclude that he waivered his right as stated by the stated by the second respondent. Whether pleadings and processes filed by a person who was not duly certified to practise law should be declared null and void, and should be struck of the record. In this present application the question is whether legal proceedings instituted by a legal practitioner who, at the relevant time, lacked a valid practicing certificate are nullities in law and therefore liable to be struck off the record. The applicant argues that the second respondent, filed court processes under the name and style of Manase and Manase Legal Practitioners during a period he allegedly lacked authority to practice, and hence contravened both domestic and comparative legal standards. The legal consequences of such a contravention, it is submitted, HB 109/25 HCBC 1100/24 must extend to invalidating all processes filed in the affected matters namely, HCBC 371/24, HCBC 386/24, and HCBC 389/24. Section 9 of the Legal Practitioners Act [Chapter 27:07] states that 9. Offences by unqualified persons (1) No person other than a registered legal practitioner, registered notary public or registered conveyancer shall practise as such or in any manner hold himself out as or pretend to be or make use of any words or any name, title, designation or description implying or tending to the belief that he is a legal practitioner, notary public or conveyancer, as the case may be, or is recognized by law as such. (2) Subject to any other law, no person other than a registered legal practitioner who is in possession of a valid practising certificate issued to him shall— (a) sue out any summons or process or commence, carry on or defend any action, suit or other proceeding in any court of civil or criminal jurisdiction in the name of any other person This statutory provision creates a mandatory requirement that no legal practitioner may act on behalf of any client or conduct legal business unless in possession of a valid practising certificate. Due to the relative scarcity of Zimbabwean case law explicitly addressing the nullity of processes filed by unlicensed legal practitioners, it is apposite to refer to persuasive foreign jurisprudence. In the Ghanaian case of Henry Nuertey Korboe v Francis Amosa J4/56/2014, Justice Dotse delivering the majority opinion stated: “I am of the considered view that, whenever a lawyer by his own acts of default finds himself or herself in breach of section 8(1) of Act 32, then it follows that he automatically loses his licence to practice as a solicitor or lawyer. The consequence thereof is that; such a lawyer must be deemed not to have any authority whatsoever to prepare an originating process in any court process or legal document on behalf of any client or represent any such client in his capacity as a lawyer.” HB 109/25 HCBC 1100/24 The principle emerging from this judgment is that any process filed by an uncertified legal practitioner is a nullity and incapable of sustaining a cause of action or defense in law. The logic is straightforward: without a license, there is no legal agency, and the practitioner is not clothed with the requisite capacity to act This position finds further reinforcement in the Ghanaian Supreme Court’s judgment in Network Computer Systems Ltd v Intelsat Global Sales & Marketing Ltd [2012] 1 SC GLR 218 at 230,, where it was emphatically held: "A court cannot shut its eyes to the violation of a statute as that would be very contrary to its raison d'être. If a court can suo motu take up the question of illegality even on mere public policy grounds, I do not see how it can fail to take up illegality arising from statutory infraction which has duly come to its notice." The principle has also been judicially articulated in English law. In Belvoir Finance Co Ltd v Harold G Cole & Co [1969] 2 All ER 904 at 908, Donaldson J remarked: "What the respondent is inviting this court to do in this appeal is for the court to shut its eyes when the very statute passed to regulate the profession of which we are part is violated with impunity by the very people who are on oath to uphold it..." These remarks highlight the inherent contradiction of permitting unlawfully instituted proceedings to stand, especially when the party filing them is one entrusted with legal and ethical responsibilities under statute. The regulation of legal practice is not a mere technicality it is a substantive safeguard ensuring competence, accountability, and protection of the public. In response to the argument raised by the first and second respondents that clients should not be penalised for the misconduct or administrative failures of their legal practitioners, it must be noted that while this proposition enjoys moral sympathy, it cannot override express statutory provisions. The maxim ignorantia legis neminem excusat (ignorance of the law excuses no one) HB 109/25 HCBC 1100/24 applies with equal force to all participants in legal proceedings. Moreover, the potential hardship to the client does not alter the jurisdictional defect that occurs when court processes are filed by one who lacks legal authority to do so In light of both statutory and jurisprudential supports the applicant’s contention that legal processes filed by an uncertified legal practitioner are irregular and incurably null. The second respondent could not produce any proof to the contrary and did not explicitly deny that they did not possess a practicing license during that period. DISPOSITION Therefore, the proper and lawful course is for the court to strike the said matters off the roll. This not only affirms the primacy of legal compliance but also allows the first respondent the opportunity to re approach the court through properly constituted legal representation. This outcome respects both the rule of law and the litigant’s right to access the courts, without endorsing the unlawful practice of law by uncertified individuals. In light of the foregoing, the court makes the following order: 1. All pleadings filed by the second respondent under HCBC 371/24, HCBC 386/24, and HCBC 389/24 are hereby struck from the record. 2. The first respondent is granted leave to re-file its pleadings through a duly certified legal practitioner within ten (10) days of this order. 3. The second respondent shall bear the costs of this application on a punitive scale. Tabana and Marwa Legal Practitioners, applicant’s legal practitioners Zinyengere Rupapa Legal Practioners, 1st respondent’s legal practitioners Manase & Danana Law Group, 2nd respondent’s legal practitioners