Lloyd Munyaradzi Manokore v The Law Society of Zimbabwe Legal Practitioners Disciplinary Tribunal

### Preamble
1
HH 230-21
LPDT 1/21
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LLOYD MUNYARADZI MANOKORE

versus

THE LAW SOCIETY OF ZIMBABWE

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL

CHATUKUTA J (Chairperson), MUSAKWA J (Deputy Chairperson), S. MOYO and D.

KANOKANGA (Members)

HARARE, 30 April & 12 May 2021

Disciplinary Matter

F. Girach, for the applicant

S. Gahadzikwa, for respondent

MUSAKWA J: Following a disciplinary hearing, this Tribunal on 15th April 2021 ordered that the applicant’s name be deleted from the register of legal practitioners, notaries public and conveyancers. The applicant now seeks the suspension of that order pending the determination of the appeal he noted with the Supreme Court. Such relief is provided for in s 29(3) of the Legal Practitioners Act [Chapter 27:07].

In HH 167-21 this Tribunal found the applicant guilty of unprofessional, dishonourable and unworthy conduct. The basis for such finding was that he acted for two clients, National Foods Limited as well as Perkins and Lilian Zhawari (the Zhawaris) under circumstances where the interests of the clients conflicted. We also found that the applicant sold a property of the Zhawaris that had been offered as security for a loan extended to Celgrim Bakeries (Pvt) Ltd by National Foods Limited without their consent or an order of court. After selling the property the applicant remitted the balance of the proceeds of the sale to National Foods Limited instead of remitting it to the complainants.

I now proceed to sum up the applicant’s averments in support of the application. The applicant contends that the appeal lodged with the Supreme Court is unlikely to be heard during the course of 2021. In the event of the appeal succeeding he would have served part of the sentence. On prospects of success he contends that the power of attorney granted by the Zhawaris was specific on what he would do in the event of their defaulting. The power of attorney also recorded or acknowledged that Manokore and Partners were legal practitioners for National Foods Limited. Thus he contends that the Tribunal erred in holding that the power of attorney was valid in one context and invalid for purposes of finding him guilty of unprofessional, dishonourable or unworthy conduct. As such the Tribunal erred in failing to hold that the Zhawaris consented to the sale of their immovable property.

Regarding prejudice or irreparable harm, the applicant contends that it is present where there are no other remedies. The harm the applicant envisages relates to his name and the legal firm. The applicant avers that the prejudice he stands to suffer relates to his reputation and this will impact on his family. In the event of the appeal succeeding he would have already been punished. The legal firm stands to suffer from a potential loss of clients. Allied to that is that the legal firm’s reputation is likely to be dented. Employees of the firm are likely to face an uncertain future. As such there would be no prejudice to the respondent if the penalty is suspended.

The applicant further contends that deletion from the register is the ultimate penalty that the Tribunal can impose. As such he should be allowed to continue to practice whilst awaiting the appeal to be heard. Since the complaint that was lodged in 2016 he has been practising without any restrictions. He has not been involved in any act of misconduct since then. As such the balance of convenience weighs heavily in his favour.

In opposing the application, the respondent raised a preliminary point claiming that there is no provision for the filing of an urgent application before the Tribunal. Although this point was initially taken at the hearing, Mr Gahadzikwa eventually abandoned it.

On the merits the respondent contends that there are no prospects of success on appeal. The Zhawaris’ property was sold without their consent or an order of court. The sale was in furtherance of the interests of National Foods Limited to the detriment of those of the Zhawaris. The security given by the Zhawaris did not render them principal debtors to National Foods Limited. The Zhawaris did not give power of attorney to pass transfer and there was no seller’s declaration as such documentation is essential in a conveyancing transaction. In the absence of a consent to sell there should have been a court order to that effect.

The respondent defends the sentence as being entirely appropriate. On the issue of prejudice, it is contended that the integrity of the profession needs to be safeguarded. Public confidence in the profession would be eroded if a deregistered legal practitioner is allowed to continue to practice. Thus the balance of convenience weighs in favour of the common good as against individual interests. Public confidence in the administration of justice and the need to maintain high ethical standards should be paramount.

Mr Girach submitted that in an application of this nature the Tribunal in its discretion must consider the prospects of success on appeal, the prejudice as well as balance of convenience. He further submitted that the power of attorney empowered the applicant to perform a specific act. It did not create an attorney and client relationship between the parties. It also did not create a duty of care on the applicant. He referred to the case of Mtemererwa v Tavarwisa and Another 2004 (2) ZLR 172. I must point out that having read the cited case, I did not find its application to the argument that was advanced. He further submitted that there were no reservations or directions in the power of attorney regarding how the property was to be sold. This was a conveyancing matter in which the property owner did not need to interact with the applicant. By the time the complainants sought to revoke the power of attorney, the property had already been sold. In any event once the power of attorney had been given as security it could not be revoked. Mr Girach further submitted that the issue surrounding the power of attorney is one in which the Supreme Court needs to make a pronouncement.

Regarding prejudice, Mr Girach submitted that this is in the form of damage to the applicant’s reputation. A sentence served can never be recovered. The applicant may be shunned by clients who may move on. Legal practice is a defining career to the applicant.

Mr Girach further submitted that the consent of the Zhawaris was not required in respect of the sale of the property. He further submitted that if consent was required it had been given. Once the consent had been given, it could not be withdrawn. He also stressed that if that is how security given for loans is handled, then it will heavily impact on lending.

Mr Girach submitted that the balance of convenience favours the applicant, taking into account the passage of time. According to him the applicant is not a danger to the public. Even if the appeal partially succeeds it will still have impact on sentence.

With specific reference to s 29 (3) of the Legal Practitioners Act, Mr Girach submitted that such applications are not a matter of form or substance. In his view the provision is meant to curb frivolous appeals. There must be a balance between the right to earn a living and the gravity of the transgression. In reply to a question posed to him, he submitted that the applicant is no longer involved with the law firm. A new managing partner has since taken over from him.

Mr Gahadzikwa submitted that the Supreme Court is unlikely to come to a different conclusion. The transaction between the applicant and the Zhawaris was not purely conveyancing. There was also debt collection. The applicant should not have placed himself in a situation where he represented conflicting interests of the parties. The applicant had a duty to conduct himself with care in respect of the interests of his clients. The Zhawaris’ property was sold on account of an unpaid debt. All that should have been done was to first sue Clegrim Bakeries (Pvt) Ltd. This is because the principal debtor was Celgrim Bakeries (Pvt) Ltd against whom execution should have been sought first. Mr Gahadzikwa also submitted that no argument was advanced on the issue of abuse of trust funds. The applicant remitted funds due to the Zhawaris to National Foods Limited.

Regarding prejudice, Mr Gahadzikwa submitted that it is inescapable that there is personal prejudice which must be balanced against the interests of the legal profession. He further submitted that the practice at the applicant’s former firm is being ably managed by the remaining three partners. Therefore, there is no prejudice to clients. The integrity of the profession is paramount and must be safeguarded jealously. It would send the wrong signal to the public if the applicant is allowed to resume practice.

S 29 (3) of the Legal Practitioners Act provides that-

“The noting of an appeal in terms of this section shall not, pending the determination of the appeal, suspend the decision appealed against unless the Disciplinary Tribunal, on application being made to it, directs otherwise, and for such purposes the Disciplinary Tribunal may give such directions as to the conditions upon which the registered legal practitioner concerned may, pending the determination of the appeal, practise or operate any trust or business account of the practice.”

As can be noted from the above provision, the circumstances under which a deregistered legal practitioner may be allowed to practice are not outlined. This is left to the discretion of the Tribunal.

The Tribunal found that the applicant was conflicted when he acted for both National Foods Limited and the Zhawaris. Reliance was placed on the case of Towers v Chitapa 1996 (2) ZLR 262 (H) in which at 261 GILLESPIE J had this to say-

“It appears to me that the defendant's attorneys have allowed themselves to act, to the defendant's prejudice, in a case where there is the clearest conflict of interest between the defendant and Mrs Kamangwana. The attorneys should never have allowed this to happen. It was unprofessional. A legal practitioner has the clamant of duties not to act for parties with conflicting interests. His duty to place his best endeavours at the service of a client necessarily precludes him from exerting those efforts for another whose interests oppose the first client. Although in some cases it may be appropriate to make disclosure of the conflict and to continue to act with the parties' consent in others, it is improper even to seek that consent. As a result of what has happened, the defendant will now have a judgment against her which is enforceable whereas had she been advised timeously of her rights, show would, 1 think inevitably, have been able to claim an indemnity from Mrs Kamangwana. That she would have made such a claim is clear from her answers to questions which I put to the defendant.

I was sufficiently alarmed at the close of the case at this apparently questionable conduct to direct that the attorneys should appear to explain why they had acted as they did and to satisfy me as to whether an order of costs ought not to be made against them. There was no such appearance, Mr Girach informed me that despite attempts made by himself, between my making the direction at the close of evidence and the hearing of argument, he had been unable to communicate with his instructing attorneys. No explanation has since been placed before me. In the absence of that explanation, 1 am unable to draw any conclusion other than that the defendant was not properly advised of her rights by her attorneys who wrongly accepted instructions from her when they owed a conflicting duty to their existing client, Mrs Kamangwana. In the circumstances, I consider a mark of disapproval to be warranted and will make it in an order of costs. I will order that the defendant's attorneys should recover no remuneration for themselves from the defendant, without resorting to the more dire expedient of awarding costs de bonis propriis. Since this order is given without hearing any explanation from the attorneys, 1 will give leave to them to show cause, if so advised, within 30 days of the judgment, why this order should not be rescinded.”

Mr Girach has persisted with the argument that the sale of the Zhawaris’ property was lawful parate executie and made reference to the case of Oliver Mandishona Chidawu v Jayesh Shah SC 10/14. It may be noted that in that case the issue regarding lawfulness of parate executie was deferred to the case of Glens Removal and Storage Zimbabwe (Pvt) Ltd v Patricia Mandala CCZ 6/17. It was the finding of this Tribunal that the power of attorney that the applicant relies upon was irregular. This is because it made the Zhawaris debtors whereas it is common cause that the debtor was Celgrim Bakeries (Pvt) Ltd. Even in the event of our finding regarding the power of attorney being set aside, it is unlikely that the finding on conflict of interest will be disturbed on appeal.

In any event there is the other fundamental issue of misconduct that the applicant has failed to address. This relates to his failure to pay the balance of the funds realised from the sale of the property to the Zhawaris. Instead the applicant paid the balance to National Foods Limited. It remains undisputed that trust money meant for the Zhawaris was credited to National Foods Limited who did not deserve it. It does not matter that the applicant did not appropriate the funds for his personal use. This on its own entails the ultimate penalty of deregistration.

In Bolton v Law Society [1994] 1 WLR 512 and at 519, it was held that:

“The reputation of the profession is more important than the fortunes of any individual member because a profession’s most valuable asset is its collective reputation and the confidence which that inspires.”

Another authority on the purpose of disciplinary proceedings is the case of Law Society of Singapore v Kurubalan s/o Manickam Rengaraju [2013] 4 SLR 91 in which the following was said:

“A court that exercises disciplinary jurisdiction is likely to view mitigating factors in a qualitatively different light than would a court in the exercise of its criminal jurisdiction: see Law Society of Singapore v Tham Yu Xian Rick [1999] 3 SLR (R) 68. Because orders made by a disciplinary tribunal are not primarily punitive, considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of the disciplinary jurisdiction than on sentences imposed in criminal cases: Bolton v Law Society [1994] All ER 486 at 492. To state the matter another way, whatever might have been the appropriate sentence in the criminal proceedings, the objective there was rather different from that in show cause proceedings, which are civil and not punitive in nature.

The point simply is that even if a mitigating circumstance might be found that could weaken the case for punishment in a criminal case, this circumstance may often not avail an Advocate and Solicitor in disciplinary proceedings because an equally, if not more, important consideration is the protection of public confidence in the administration of justice. This interest can legitimately trump the individual offender’s interest in having his punishment finely calibrated according to his precise degree of culpability.”

In his quest for suspension of sentence pending appeal, the applicant is seeking to protect his reputation and that of his former legal firm. A finding of misconduct and the penalty that was imposed does inevitably impact on the applicant’s reputation. We cannot speculate on the impact this has had and may have on the firm. However, it will be noted that a new managing partner has since taken over. The applicant has not sought to argue that he has some cases and files that were at a delicate stage such that they required his personal attention. Therefore, the prejudice feared by the applicant is personal. This must be weighed against the interests of the profession and the administration of justice. In the present case the interests of the legal profession and those of the administration of justice outweigh the applicant’s personal interests.

In the circumstances the application is dismissed.

Manokore Attorneys, applicant’s legal practitioners