Tinei AMOS Family Trust V Martin Mufanebadza

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HH 50-18
HC 2007/16
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TINEI AMOS FAMILY TRUST

versus

MARTIN MUFANEBADZA

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 30 January 2018

Civil Trial

C. W. Gumiro for the plaintiff

J. Mafume for the defendant

“I don’t want a lawyer to tell me what I cannot do; I hire him to tell me how to do    what I want to do.” J. P. Morgan, 1837-1913.

ZHOU J: This case presents a complex scenario of what has become of the legal profession due to the conduct of a few “bad apples” in the basket.  If left unchecked that conduct can damage the reputation of the legal profession, a profession which, among the Romans, was equated to consecrated priesthood.  The above quoted ancient statement attributable to J. P. Morgan eloquently reflects how Mr Mafume conducted himself after being briefed by or after conniving with a party who misled the court into thinking that he was the defendant when, in fact, he was not the defendant.  The ethical issues which arise are serious, and one hopes that the profession will take a serious view of the matter.

Under normal circumstances there would be no need for a written judgment in this matter because the ultimate outcome was a default judgment against the defendant.  The order which I granted is as follows:

“IT IS ORDERED, IN DEFAULT OF THE DEFENDANT, THAT:

Judgment be and is hereby granted in favour of the plaintiff against the defendant for:

An order that the defendant together with all persons claiming occupation through him be and are hereby ordered to vacate Stand 3768 Crowborough North, Harare within 7 days of the date of this order failing which the Sheriff be and is authorized to take steps necessary to eject them from the said property;

The defendant to remove the structure erected on Stand 3768 Crowborough North, Harare within 7 days of this order failing which the Sheriff is authorized, at the expense of the defendant, to take all steps necessary to remove the said structure.

Defendant’s claim in reconvention is dismissed.

The costs of this matter shall be paid on the attorney-client scale by the defendant and his legal practitioner Mr Jacob Mafume of Mafume Law Chambers jointly and severally the one paying the other to be absolved.

The Registrar of this Court is directed to place a copy of this order together with the reasons thereof before the Council of the Law Society of Zimbabwe for an inquiry to be undertaken into the conduct of Mr Jacob Mafume.”

The facts upon which the above order was granted are as follows. This civil matter was set down for trial on the continuous roll for the week beginning Monday 29 January 2018 at 1000 hours.  On that day the parties legal practitioners appeared before me in chambers and requested that the matter be placed at the end of the roll for the week as there were issues which the defendant intended to attend to in relation to his pleadings.  The request was at the instance of the defendant’s counsel, Mr Mafume.  The parties were duly advised that they were to be prepared to start the trial on any date during the course of the week.  Before end of day on the same day the parties through their respective legal practitioners were advised that the matter was to proceed to trial on 30 January 2018.

On 30 January 2018 prior to the commencement of the trial Mr Mafume for the defendant made an application for postponement of the trial on the grounds that the defendant intended to make an application to amend his pleadings by joining the City of Harare as a defendant in the claim in reconvention.  I dismissed the application after hearing argument and gave reasons for the decision.  The trial was to proceed, but before that Mr Mafume asked for a brief adjournment in order to take instructions from his client.  The indulgence was granted.  Upon resumption Mr Mafume advised the court that he was asking to be excused from representing the defendant as the defendant had expressed doubts about his capacity to represent him because he was not prepared for the trial.  He also confirmed that indeed he was not prepared for the trial as he had briefed counsel to represent the defendant.  The court saw through the apparent delaying tactic because not only had the issue of counsel not been the primary reason for seeking postponement, but also that the excuse that the lawyer was not ready for or was unprepared for the trial was unacceptable.  But, as it turned out, there was more to the case than just Mr Mafume’s unpreparedness to deal with the trial.  Upon his statement that the defendant was not prepared to be represented by him, the Court excused Mr Mafume from the proceedings and ordered the trial to proceed.

I dismissed a further request for the matter to be postponed which was made by the gentlemen who had been presented as the defendant by Mr Mafume.  The trial accordingly commenced with the plaintiff leading its first and only witness, Amos Tinei Harrison.  He completed giving his evidence in chief prior to the lunch adjournment.  At that time the court advised the supposed defendant that after the lunch adjournment he would be entitled to cross-examine the witness.  The court also explained what cross-examination entailed.

After the lunch adjournment the witness was tendered for cross-examination by the supposed defendant.  The gentlemen who represented himself as the defendant and who had been presented to the court as such by Mr Mafume advised the court that his blood pressure had risen during the lunch adjournment and he was not in a position to proceed.  Although I was convinced that he was feigning illness I indulged him and directed that he could seek medical assistance and produce proof of his medical condition.  The matter was adjourned to 1530 hours.  At that time he produced an unsigned piece of paper bearing a date stamp of QV Parmacies (Pvt) Ltd showing his blood pressure accompanied by the following words:

“Elevated Blood Pressure it is above the normal  . . .  Even with the medication he has 	taken it 	is still high.  He needs to relax and have sufficient rest.”

When the paper was produced I ordered that the trial should proceed, as the document produced was not only unsigned but was not from a medical practitioner.  The “defendant” did not put any questions to the plaintiff’s witness.  The plaintiff’s case was closed.

When the “defendant” was called upon to take the oath for the purposes of giving evidence in support of his case he stated his name as Francis Masotsha.  The man before the court was therefore not the defendant.  The court had been misled into believing that the defendant was in attendance when, in fact, the man in attendance was Francis Masotsha who claimed to have come only as a witness.  He had no evidence of authority to represent the defendant.  In fact, for two days he pretended to be the defendant himself until he was called upon to testify.  The defendant himself was in default.  Francis Masotsha was excused from the witness stand as he could not give evidence for a defendant who was not in court.  In fact, he had since Monday held himself out as the defendant.  During the trial he pretended to be the defendant.  Even when he feigned illness he was representing himself as the defendant.  When the legal practitioner, Mr Mafume asked to be excused from representing the defendant he was conferring with Masotsha as if he was the defendant.

The plaintiff, as it was entitled to do, applied for and was granted default judgment in the terms recited above.

Attorney client costs and costs de bonis propriis against a legal practitioner are awarded where there are exceptional grounds such as impropriety or other reprehensible conduct on the part of the legal practitioner or other party concerned.  See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147(S); Pasalk & Anor v Kuzora & Ors 2003 (1) ZLR 287(S); Wang & Ors v Ranchod NO & Ors 2005 (1) ZLR 415(H); Nyoni v Elmissing & Anor 2009(1) ZLR 251(H).  The impropriety and reprehensibility of the conduct exhibited by defendant and his legal practitioner in casu are incapable of condonation and must be censured through the special order of costs.

The defendant was duly notified of the set down dates but refrained from attending.  No explanation was given for his default. He assigned another person who duped this court into believing that he was the defendant. The court was taken on a wild goose chase by the defendant’s agent, Francis Masotsha and the legal practitioner, and spent the whole day hearing evidence in a matter in which the defendant was in default. Mr Mafume’s conduct is clearly dishonourable in that when he applied for postponement of the matter he was aware that his client was in default but deliberately misled the court into believing that Francis Masotsha was the defendant.  Despite being the one who appears to have prepared the defendant’s plea and other pleadings, he advised the court that he was not prepared to proceed with the trial.  How a legal practitioner who is himself the proprietor of the law firm representing the defendant could come to court unprepared is a matter of serious concern to this court.  After the court refused to grant the postponement he asked to be excused from representing the defendant yet the person he had brought before the court as the defendant was not the defendant.  He abandoned his client leaving the defendant’s case to be prosecuted by Francis Masotsha who, like the legal practitioner, also misled the court into believing that he was the defendant.  Because of the conduct of Mr Mafume the court sat for almost the whole day to hear evidence yet the defendant was in default.

It was for the above reasons that I granted the order in the terms captured above.

Ngarava, Moyo & Chikono, plaintiff’s legal practitioners

Mafume Law Chambers, defendant’s legal practitioners