Sedzai Munobvanei & Anor v The Presiding Magistrate & Ors

### Preamble
Judgment No. SC 185/20
Civil Appeal No. SC 56/20
1
REPORTABLE
(170)
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REPORTABLE 	(170)

(1)     SESEDZAI     MUNOBVANEI     (2)     MHONDIWA     NYAMANDE

v

(1)    THE    PRESIDING    MAGISTRATE     (2)     THE     TRIAL      PUBLIC     PROSECUTOR     (3)     THE    PROSECUTOR     GENERAL

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GUVAVA JA & UCHENA JA

HARARE, JULY 14, 2020

E Mubaiwa, for the appellant

Respondents barred

GWAUNZA DCJ

[1]	On 17 April 2019 the High Court handed down a judgment in which it issued the following order: -

1. 	The order of this Court granted on 12 December 2018 under Case No. HC 7399/18 acquitting the applicants namely Sesedzai Munobvanei and Mhondiwa Nyamande under CRB MRWP 944-5/18 at the close of the State case was made in error and is hereby rescinded.

2.	For the avoidance of doubt, the trial magistrate shall proceed with the trial forthwith by putting the applicants on their defence as already ordered by this Court under Case No HH748/18

3.	This judgment shall be placed before the Executive Secretary of the Law Society (sic) for possible disciplinary action against Mr Norman Mugiya (my emphasis)

The appellants filed an appeal against the whole of this judgment.

[2]	With the respondents barred for failure to file their heads of argument, this Court proceeded to hear argument from counsel for the appellants. Counsel however in the end conceded that the appeal was devoid of any merit and moved that it be dismissed with no order as to costs. The concession, whose effect was to remove any challenge to the findings and determination of the court a quo on the matter that was before it, was in the court’s view properly made. The court therefore upheld the judgment of the court a quo in its entirety.

In the result the court granted the order as moved by counsel, to the following effect: -

“The appeal be and is hereby dismissed with no order as to costs.”

[3]	Ordinarily there would have been no need to write the reasons for the order made in an appeal that was effectively abandoned, on the merits, by the appellants. The court a quo however, highlighted certain conduct exhibited by the legal practitioner, Mr Norman Mugiya, which by all accounts was quite alarming and therefore deserving of censure by this Court. In the light of this circumstance, the court took the view that it was important to record its reasons for upholding the part of the judgment of the court a quo that related to such conduct.

Mr Mugiya represented the appellants initially in the Magistrates’ Court and later, the High Court.

BACKGROUND FACTS

[4]	The appellants were charged with contravening section 72(b) of the Magistrate Court Act [Chapter 7:10] (herein referred to as ‘the Magistrate Court Act’). It was the second respondent’s case that the appellants unlawfully removed certain items of property that the Messenger of Court had attached in execution of a judgment against them. The appellants were subsequently arrested and brought before the first respondent who is the presiding magistrate under CRB MR WP 944-5/18. The State having closed its case, the appellants then made an application for discharge in terms of s 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”). The first respondent dismissed the application on the basis that there was evidence led to the effect that the said property was under the control or possession of the two accused persons (appellants in casu) who had allowed its removal or had it removed without lawful authority.

[5] 	The decision of the first respondent did not find favour with the appellants. It also triggered the events, engineered by Mr Mugiya, which displeased the judge a quo and culminated in the judgment being appealed against in casu.

[6]	A chronicle of the developments that followed the decision of the first respondent, elicited from the record, including the judgment of the court a quo, will better illuminate the conduct of Mr Mugiya that prompted the court to direct that its judgment be brought to the attention of the Law Society of Zimbabwe for any appropriate disciplinary or other action.

[7]	On 7 August 2018, the first respondent dismissed the application by the appellants for discharge at the end of the State case against them.

[8]	On 10 August 2018, the appellants, through Mr Mugiya, filed a court application for review, seeking an order setting aside the decision of the first respondent and substituting it with an order granting the appellants’ application for discharge in terms of the Act, and their acquittal from all charges against them.

[9]	On 12 September 2018, and despite the filing of the application referred to in para 7 above, the Clerk of Court at Murewa submitted the original record of proceedings to the Registrar of the High Court under cover of a letter which read: -

“Ref S v Munobvei Sesedzai & Anor MRWp 944-5/18

Please acknowledge the receipt of the above mentioned record which is being sent to your office for purpose of review as requested by the accused’s legal practitioners” (my emphasis)

The matter was assigned to HUNGWE J (as he then was).

[10]	On 17 October 2018 the application filed on 10 August 2018 came before the judge a quo, KWENDA J, as an unopposed matter. Default judgment was applied for by Mr Muvhami, a legal practitioner from the same firm as Mr Mugiya’s. Certain aspects of the application caused the judge some disquiet, and despite the papers on record seeming to be in order, the judge reserved judgment in the matter. The judge a quo was particularly concerned about the lack of opposing papers from the State and, through the Registrar, sought clarification as to whether or not the State, through the Prosecutor General in Harare, had been served with the application. In the response that came through the Registrar’s Office from the State, the latter stated categorically that there was no evidence that the National Prosecuting Authority was ‘ever served with such an application’.

[11]	Accordingly, the judge invited both Mr Mugiya and State Counsel to his chambers in order to have the matter clarified. It emerged that, contrary to Mr Mugiya’s signed certificate to the effect that service of the application on the Prosecutor General had been effected, no such service had been done. This was despite the fact that Mr Mugiya’s own copy of the application bore two date stamps from the local Prosecutor at Murehwa, and none from the Prosecutor General’s Office. Upon  a cursory look, this gave the impression that the application had not been properly served on the latter’s offices in Harare. A closer look at the papers also revealed that a clerk at Mr Mugiya’s offices had, according to the judge, lied, even to the extent of fabricating that he handed the application to one Simba at the office of the Prosecutor General. The judge accordingly concluded that the certificate of service was a fraud. He also noted that, in the absence of the usual date stamp on the face of the application (signalling proper service), Mr Mugiya ‘after some argument’ conceded that service (on the Prosecutor General, Harare) had not been effected.

[12] 	The judge accordingly reprimanded Mr Mugiya for what he believed to be negligence on his part, in falsely certifying in support of a fake certificate of service, that he had satisfied himself ‘by personal enquiry’, that service had been effected’. The judge opined that such conduct was ‘gross and frightening.’ He then directed Mr Mugiya to effect service on the State. Mr Uladi for the State indicated he would file a response to the application as soon as the Prosecutor General was served with the application. The judge explained that his intention was thereafter to refer the matter for enrolment on the opposed roll.

[13] 	Before the State’s response to the application was filed, Mr Mugiya on 23 October 2018 wrote to the Registrar of the High Court, requesting either a judgment in the matter, or a provisional order staying criminal proceedings in the trial court. The judge a quo turned down the request on the basis that his final judgment ‘was awaiting’ a response by the State and, in any case, the request did not come in the form of a formal application for the provisional order sought.

[14]	On 7 November 2018 HUNGWE J (as he then was), with the concurrence of WAMAMBO J, handed down a written review judgment whose operative part read as follows: -

“...in the absence of sound grounds suggesting a basis for interference by this court, the court a quo is therefore directed to proceed with the trial of both accused by putting them on their defence and concluding the trial as expeditiously as possible.”

The judge a quo observed that HUNGWE J’S judgment was copied to both the National Prosecuting Authority and Mugiya and Macharaga Legal Practitioners. The judge a quo stresses, however, that he himself was ‘completely unaware’ of the judgment in HC 748/18, that is, HUNGWE J’S judgment. He therefore proceeded with the matter that he was seized with.

[15]	Fully cognizant of HUNGWE J’s judgment of 7 November 2018, Mr Mugiya wrote again to the Registrar on the same date, stating as follows: -

“Sesedzai Munobvaneni & Anor v The Presiding Magistrate and Anor

It appears that the respondents did not oppose the application notwithstanding that the learned judge had the courtesy of calling the parties for housekeeping issues and the respondents through the National Prosecuting Authority to provide (sic) within the time prescribed by the court.”

[16] 	The judge a quo, on reading this letter whose contents he believed, was ‘irked’ by the apparent non-cooperation by the State.  He accordingly, on 12 December 2018, granted the default judgment against the State that Mr Mugiya had so strenuously and relentlessly sought. The result was that there were now two conflicting judgments by the same court, between the same parties and on the very same issue. HUNGWE J’s judgment ordered continuation of the trial against the appellants, while that of the judge a quo acquitted the same appellants and ordered their release from custody.

[17]	The first respondent then wrote to the Registrar of the High Court, through the Chief Magistrate, calling attention to this irregularity and seeking guidance on how to handle the two conflicting orders. It was then that the anomaly was drawn to the attention of the judge a quo. At that stage, the judge realized he had erroneously granted the default order in question, since he was not aware of the earlier judgment of HUNGWE J. Thus, fully knowing that HUNGWE J’s judgment existed and was extant, the appellants’ counsel, Mr Mugiya, had not only filed the court application a quo, but on the day of the hearing, refrained from disclosing the existence of the first order to the court.

[18]	The judge a quo in light of all this decided, mero motu, to invoke the provisions of r 449 of the High Court Rules in order to rescind the judgment erroneously granted by him. For the second time the judge called the parties to his chambers. He stated what then transpired, as follows: -

“Mr Norman Mugiya appeared before me in chambers for the applicants and Mrs Fero for the State. At the meeting I made a startling discovery. Mrs Fero presented before me proof that the state had filed a response to the application on 15 November 2018 and the response had been served on Mr Norman Mugiya’s office on the following day, 19 (sic) November 2018 at 10:05am. It was received by Lydia, a responsible person at Norman Mugiya’s office. The date stamp issued by Mr Mugiya’s office is quite prominent on the face of the copy of the state’s response handed over to me by Mrs Fero. The discovery meant that the contents of the letter from Mr Norman Mugiya to the Registrar dated 7 December 2018, to the effect that, “respondents through the National Prosecuting Authority … had not responded to the application” was an untrue statement calculated to mislead me. I was indeed misled and acted on the untruth. (sic)

[19]	The judge noted that, once again confronted by irrefutable facts, Mr Mugiya conceded that the State’s response had been received at his office. However, instead of agreeing to the suggestion that the judge rescind his default judgment, Mr Mugiya ‘strenuously’ argued that the judge should, rather, rescind HUNGWE J’s order. This was notwithstanding the fact that no proper application for such an order was before the court. The judge a quo correctly rejected the request, and ordered the parties to file submissions on the intended rescission of his default judgment. He gave them a specific timeframe in which to do so.

[20]	Undeterred in his relentless quest for an order putting an end to the prosecution of the appellants, Mr Mugiya not only defied the instruction to file submissions in relation to the rescission of the default judgment, he also filed two new applications before the court a quo. One was for an order rescinding HUNGWE J’s review judgment. The other (in which Mr Mugiya was careful not to cite the Prosecutor General) sought an order compelling the Prosecutor General to comply with the impugned default judgment of the judge a quo and also, declaring: -

the third respondent in casu, that is the trial magistrate, to be non functus officio in relation to the case, and the further replacement of the appellants on remand at Mrewa Magistrates’ Court to be ‘unlawful and wrongful’.

Mr Mugiya proceeded to have this matter (HC 527/19) set down for hearing in Motion Court before CHAREWA J, and without the knowledge of the Prosecutor General.

[21]	CHAREWA J raised a number of relevant queries concerning the propriety of the application, especially that the judge a quo was waiting for submissions in relation to the intended rescission of his default judgment. She accordingly removed the matter from the roll. The effect of the order (especially the part underlined above) would, the judge a quo noted, have been to make it impossible for him to rescind his default judgment. This was despite the fact that Mr Mugiya was fully aware that the judge was waiting for the written submissions that he had directed the parties to file.

[22]	Frustrated by the removal of the case from the roll by CHAREWA J but still relentless, Mr Mugiya then turned his attention to HC 524/19, his application for rescission of HUNGWE J’s review judgment. In an attempt to clear the way, Mr Mugiya wrote to the Prosecutor General advising that he should not file the written submissions that the judge a quo had directed them to submit, because they had to pursue HC 524/91. The judge a quo noted in this respect that it boggled the mind how Mr Mugiya could have arrogated to himself the authority to issue directives to the Prosecutor General. He expressed the view that such conduct was contemptuous.

[23]	Ignoring Mr Mugiya’s request, the Prosecutor General complied with the directive of the judge a quo and duly filed his written submissions. Incredibly, Mr Mugiya was not done! In a last ditch effort to avert the trial of the appellants, he wrote yet another letter to the Registrar on 19 February 2019, complaining that he had not received the State’s written submissions. The judge a quo noted that this letter was meant to confuse ‘the whole scenario since the submissions in question had been filed on 7 February 2019.

[24]	The judge a quo thereafter invoked the provisions of r449 of the High Court Rules, and rescinded his default order. In his judgment, the judge expressed his extreme displeasure at the conduct of Mr Mugiya, as outlined above, in these terms: -

“The error (which led to him rescinding his earlier judgment on the matter) was a culmination of sustained misrepresentation of facts and machinations by applicant’s’ counsel. He misled me to believe that the Prosecutor General was not opposed to the relief sought. I would not have granted the order if I knew the correct facts as I know them now. In my opinion the level of unprofessionalism and lack of probity exhibited by Mr Norman Mugiya, applicant’s counsel, puts his fitness to continue practicing law into question. His persistence with conduct calculated to subvert justice has left me wondering whether he understands the exigencies of the oath that he took upon his registration as a legal practitioner.”

[25]	Given the foregoing, in particular the passages highlighted throughout this judgment, there can be no doubt that the displeasure of the judge a quo was well founded. It is displeasure that this Court shares with the judge.  Not only did Mr Mugiya deliberately seek to abuse court processes and the court itself, he was also misleading the court by blatantly lying to the judge not once but several times. He lied that the Prosecutor General had been served with the application that ended before KWENDA J in Motion Court. He later lied to the judge that the Prosecutor General had not filed opposing papers after being given the chance to do so following the first meeting between the judge and the parties in his chambers. This lie, which the judge believed, so irked him that he was driven to grant the default judgment that he later rescinded.

[26]	Mr Mugiya thus exhibited a total lack of professional courtesy towards the Prosecutor General and the other parties cited in the dispute. He used his knowledge of the court system to mount a relentless attack on the due processes of the court, and to subvert justice, all in an attempt to aid and abet the appellants in evading justice in the criminal case against them. Mr Mugiya’s unprofessional antics as outlined surely bring the legal profession into disrepute, and must be condemned in the strongest terms. His conduct attests to a complete lack of the professional integrity, probity and uprightness that is expected of a legal practitioner appearing before our courts. As the judge a quo correctly opined, his conduct was, in short, a total betrayal of the oath of office that he took as a legal practitioner. Lastly and to compound it all, Mr Mugiya exhibited a total lack of remorse even after he conceded not once, but twice before the judge a quo, that he had acted both unprofessionally and without any integrity on two specific occasions.

[27] 	Like with any profession, lawyers ought to and in the main, hold themselves to high standards that they have set up for themselves. This was emphasized by this Court in Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (SC)as follows: -

“In the first place, lawyers as a professional class live by their own high code of ethics and their own moral standards. Every legal practitioner owes a duty to his colleagues to uphold those standards of the profession to which he belongs.” (my emphasis)

Over and above these ideals, the judge a quo cited the following remarks by the learned author, Professor G Feltoe, in his Criminal Defenders’ Handbook (2009) at p 5 which are eminently apposite in casu: -

“The legal practitioner’s duty to his client must be balanced against the duty owed to the court and to the administration of justice. The lawyer’s duty towards his client is in fact circumscribed by his duty to the court. The legal practitioner’s duty to promote (his) client’s interests must never transcend his duty to promote the interests of justice and the truth. He has a paramount duty to the court as an officer of the court to ensure that justice and the truth are advanced. His duty to uphold the interests of justice means that he must not seek to obtain an acquittal at all costs; he must never seek to obtain the acquittal of his client by use of lies and deception.” (my emphasis)

[28] 	When these remarks are applied to the circumstances of this case it becomes very clear that 	the conduct that Mr Mugiya has exhibited in this case, constitutes a negation of the high 	code of ethics and the moral standards by which lawyers as a profession are expected to 	live. By such conduct, he therefore abrogated the duty that he owed to his colleagues to 	uphold the standards that the legal profession has set for itself. Further to that Mr Mugiya 	did all that is condemned in the remarks of Professor Feltoe, cited above. He embarked on 	a relentless quest to secure the premature acquittal of his clients at all costs through lies, 	deception and manipulation of the court system. In the process, he allowed his client’s 	interests to transcend his duty to promote the interests of justice and the truth. That is not 	the conduct expected from an officer of the court.

[29] 	For its part, the law expressly penalizes the unbecoming conduct of legal practitioners in the discharge of their professional work. The Legal Practitioners (Code of Conduct) By-laws, S.I 37/2018, in ss 20 and 21 single out the following: -

“(20) Engaging in conduct that is likely to diminish public confidence in the legal profession and or the administration of justice or to bring the legal profession into disrepute

(21) Failing or neglecting to act with integrity, 	whether in the course of his or her practice or otherwise.”

The above provisions in my view aptly summarize the shenanigans of Mr Mugiya, as outlined herein.

DISPOSITION

[30]     When all of the aforementioned in relation to the conduct of Mr Mugiya is taken into 	 	account, no doubt remains that the court a quo correctly determined that its judgment be 	placed 	before the Executive Secretary of The Law Society of Zimbabwe 	for possible 	disciplinary action against Mr Norman Mugiya. This judgment too, must similarly be 	referred to the Law Society of Zimbabwe. The ball is thus in the Society’s Court, 	as it 	were, for the exercise of its discretion in determining the action that may properly be taken 	against Mr Mugiya.

[31]	Against this background the appellants’ counsel, who initially sought to attack the decision   of the court a quo to call the attention of the Law Society of Zimbabwe to Mr Mugiya’s conduct, must be commended for having properly conceded the lack of merit in all respects of the misconceived appeal to this Court.

[32]    Hence this Court’s order dismissing the appeal in its entirety.

GUVAVA JA:              I agree

UCHENA   JA:             I agree

Mugiya & Macharaga, appellants’ legal practitioners

National Prosecuting Authority, respondents’ legal practitioners