Deputy Sheriff - Harare v Naume Maketshemu and Hamilton Finance and Others

### Preamble
1
HH 491-13
HC 4377/13
---------


DEPUTY SHERIFF – HARARE

versus

NAUME MAKETSHEMU

and

HAMILTON FINANCE

and

OTHERS

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 5 December 2013

R. Tsvakwi for the judgment debtor and claimants

Judgment creditor in person

Ms B. Rupapa at the invitation of the Court

No appearance for the Deputy Sheriff

ZHOU J: The need for the legal profession to reclaim and assert its position as a profession which was matched only by consecrated priesthood requires continuing introspection and thorough training on ethical standards.  I have been constrained to write a judgment in this matter in a request for a postponement because of the circumstances of the case.  Having heard the parties, I made an order which appears below, and indicated that my written reasons would follow.  These are the reasons.

There are ten matters involved between the parties.  Following an order of this Court given on 12 July 2013, all the matters were placed before me.  The issues which arise in the matters are essentially the same.  They are ten separate interpleader proceedings instituted by the Deputy Sheriff. The background to the matters is that the judgment creditor, Naume Maketshemu, is a former employee of the judgment debtor, Hamilton Finance.  Following a labour dispute between the two the matter went to arbitration in terms of the Labour Act [Chapter 28:01].  An arbitral award was rendered in favour of the judgment creditor.  The award was registered as an order of this court for enforcement in terms of the provisions of the Labour Act on 15 November 2012.  A writ of execution was issued on 23 November 2012.  The Deputy Sheriff then attached the various motor vehicles which were in the possession or were found at the premises of the judgment debtor.  The ten claimants claimed ownership of those motor vehicles, hence the ten cases.

The matters were set down for hearing on 19 November 2013, but were postponed by consent to 5 December 2013 at 1000 hours.  That date fell during the vacation but the parties consented to the matter being heard on vacation.  The judgment creditor was representing herself.  Ms B.Rupapa from Mutumbwa Mugabe & Partners legal practitioners represented the judgment debtor and the claimants.  On the date that the matter was postponed Ms Rupapa wrote a letter addressed to the Registrar and copied to the judgment creditor confirming postponement by consent of the matter to 5 December 2013.

On 5 December 2013 just before 10 a.m. a Mr R. Tsvakwi came and requested to see me in Chambers. He had with him copies of a notice of renunciation of agency by Mutumbwa Mugabe & Partners and a notice of assumption of agency by Chinyama & Partners legal practitioners.  The two documents had apparently been filed simultaneously on that date.  Mr Tsvakwi was not properly dressed for Court.  He was without the other parties to the litigation.  It is important for me to restate the cardinal rule of ethics that whenever a legal practitioner wants to see a judge or other judicial officer in chambers in connection with a contested matter he or she is ethically obliged to notify the other parties to the litigation or their legal representatives and invite them to attend together with him to see the judicial officer.  It is improper for a legal practitioner or a party involved in a contested matter to see a judicial officer in chambers in connection with that matter in the absence of the other parties to the matter unless those other parties have elected not to attend after being duly informed.  This practice extends even to cases where a legal practitioner in a contested case intends to pay a courtesy call upon the judicial officer for the purpose of introducing himself or herself.  In this case I advised the legal practitioner of the need to invite the other parties to the matter to my chambers as well.

At the meeting Mr Tsvakwi submitted that he was applying for postponement of the matter as he had only received instructions from the judgment debtor and the claimants that very morning.  He had assumed agency just before 10 a.m., and had not been furnished with the papers relating to the matters.  He indicated, too, that Messrs Mutumbwa Mugabe and Partners had renounced agency that same morning for professional reasons.  There was no legal practitioner from Mutumbwa Mugabe & Partners in attendance to explain the decision to renounce agency just a few minutes before the matter was to be argued.  I indicated to the parties in attendance that I would not postpone the matter until I had been furnished with a reasonable explanation as to why the erstwhile legal practitioners had renounced agency a few minutes before the hearing and never attended to explain their conduct to the Court.  Accordingly, I stood down the matter to 1130 hours and ordered that the legal practitioner at Mutumbwa Mugabe and Partners who was handling the matter must attend to explain her conduct.

At 11:30 a.m. Ms B. Rupapa attended to explain why she had renounced agency.  Surprisingly, Mr Tsvakwi was not in attendance.  He did not ask to be excused by the Court from attending; neither did he advise the Court that he would not attend at 11:30 when the matter was stood down to that time.  A lady who introduced herself as Melisa Mafunga was in attendance.  She said that she was employed by the judgment debtor as a loans officer.  Even she did not know what had happened to Mr Tsvakwi.  She stated that he had said that he was attending to something other case.  Thus there was no legal practitioner representing the judgment debtor and the claimants.  The conduct of the lawyer is unacceptable in the circumstances and must be censured.

The Court had no choice but to postpone the matter indefinitely.

I need to point out that the manner in which this matter was handled showed disregard for the duties of legal practitioners.  In terms of Order 2 Rule 6 a “legal practitioner may for good cause renounce agency by giving reasonable notice to his client, the registrar and all other parties to the proceedings”.  In the instant case no notice was given at all of the renunciation of agency.  The notice of renunciation of agency was brought to court at about the time when the hearing should have commenced.  There was no attempt by the erstwhile legal practitioner for the judgment debtor to attend at court to explain the late renunciation of agency.  She only came upon being asked to come by the Court.  I invited Ms Rupapato address me on why I should not order her to pay the wasted costs occasioned by the postponement of the matter.  I am not persuaded that her explanation for renouncing agency so late in the day was reasonable.  The fact of whether she was being briefed by the client she thought she was representing could have been established long before the date of the hearing.  In any event, even if she had discovered late that the clients had taken a position that they wanted to be represented by another law firm the least that she should have done was to attend at court and ask to be excused from appearing.  For the above reasons, I find it appropriate that she should pay the wasted costs personally.  See Doelcam (Pvt) Ltd v Pichanic & Ors 1999 (1) ZLR 390(H); Techniquip (Pvt) Ltd v Allan Cameron Engineering (Pvt) Ltd 1994 (1) ZLR 246(S).

As regards the conduct of Mr Tsvakwi, it was inexcusable for a legal practitioner who had a matter stood down to 11:30 to just absent himself from the proceedings without the leave of the Court.  He would have known that a loan officer could not competently represent a company.  In the circumstances, the Court should penalise him by an order that he should not recover his fees as he failed to properly represent the clients. Trador (Pvt) Ltd v Chidzambwa1999 (1) ZLR 528.

In the result, I make the following order:

The matter be and is hereby postponed sine die.

The judgment creditor’s wasted costs shall be paid by Ms B. Rupapa of Mutumbwa Mugabe & Partners de bonispropriis.

Mr R. Tsvakwi shall not recover from his clients, the judgment debtor and the claimants, the costs of his attendance at court on 5 December 2013.

The Registrar shall send a copy of this judgment to the Council of the Law Society of Zimbabwe.

Chinyama & Partners, judgment debtor and claimants’ legal practitioners