Veronica Muringai v The Estate Agents Council & Another

### Preamble
Judgment No. SC 164/20
1
Civil Appeal No. SC 691/18
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DISTRIBUTABLE		(154)

VERONICA     MURINGAI

v

THE     ESTATE     AGENTS     COUNCIL     (2)

OSWALD     NYAKUNIKA     N.O.

SUPREME COURT OF ZIMBABWE

MAKARAU JA, MAVANGIRA JA AND BERE JA

HARARE: JULY 18, 2019 AND NOVEMBER 24, 2020

G.R. J. Sithole for appellant

T. C. Masara for respondents

MAKARAU JA

On 31 August 2018, the Administrative Court handed down a judgment against the appellant. The judgment dismissed with costs, the appellant’s appeal to that court. The appellant had appealed against a decision of the first respondent declaring her to be unsuitable to be associated with a company or partnership which practices as an estate agent, barring the appellant from any such association or being employed by any such company or partnership and lastly, ordering her to reimburse the sum of US$120 000.00 to one Nancy Yu Ling Long.

This is an appeal against that judgment.

Background facts

The appellant is a director of Verocy Real Estate (Private) Limited.

The first respondent is a statutory body set up in terms of the Estate Agents Act [Chapter 27.17], with disciplinary powers over estate agents and persons employed by or running estate agency businesses.

In November 2017, the first respondent, acting through a disciplinary committee chaired by the second respondent, summoned the appellant to appear before the disciplinary committee to answer to two charges.

The appellant was charged firstly with unprofessional and dishonourable conduct. It was alleged that acting as a director of Verocy Real Estate (Private) Limited, she misrepresented to one Nancy Yu Ling Long(“Long”), the complainant in the first charge, that one Onesimo Musi was selling an immovable property. Long paid over to the appellant the sum of US$205 000 as the purchase price for the property after a misrepresentation that the seller had agreed to the sale and had signed the agreement of sale. Onesimo Musi had not sold his property to the complainant.

It was not in dispute that the appellant converted the money paid by Long to her own use, leading to Long successfully suing her in the High Court for a refund of the purchase price. Long also lodged a complaint with the first respondent.

In the second charge, it was alleged that during the period extending from March 2017 to the time she was charged, the appellant, in violation of the Estate Agents Act, operated Verocy Real Estate (Private) Limited without a principal real estate agent managing the business.

On the date the disciplinary hearing was set down, the appellant appeared with a legal practitioner who successfully sought a postponement of the matter as the appellant’s legal practitioner of choice was indisposed. On the next scheduled date, appellant sought another postponement to enable her legal practitioner of choice, now recovered, to fully prepare for the hearing. The matter was once again postponed. On the third scheduled date, neither the appellant nor her legal practitioner were in attendance. The legal practitioner telephoned a representative of the respondents and advised that he was detained in the Supreme Court. He requested that the matter be stood down to later in the morning. At the appointed hour, both the legal practitioner and the appellant were not in attendance.

The respondents proceeded with the disciplinary inquiry in the absence of the appellant and, after leading evidence from the complainants who also adduced documentary evidence, returned a verdict of guilty on both counts. It imposed the penalty referred to above.

Aggrieved by the decision, the appellant noted an appeal to the court a quo challenging both the conviction and the penalty.

The court a quo found no merit in the appeal which it dismissed with an accompanying order of costs.  It was its specific finding that the respondents lawfully inquired into the merits of the matter in the absence of the appellant, and, that the conviction of the appellant and the penalty meted out thereafter, were both valid.

Still aggrieved, the appellant noted this appeal, relying on four grounds of appeal, the fifth having been abandoned at the commencement of the hearing. The following were the grounds of appeal:

The court a quo grossly misdirected itself and erred when it held that the default judgment against the appellant was justified yet the evidence on record showed that appellant had not been in wilful default and that there was a reasonable explanation for the non- attendance of her lawyer to the proceedings done before the Estate Agents Council.

The court a quo grossly misdirected itself and erred at law when it failed to find as it ought to have done, that the hearing conducted by the Estate Agents Council was grossly irregular and did not accord with the principles of natural justice because the appellant had not been given access to the record of proceedings. The court erred when it found that a written default judgment sufficed as a record of proceedings.

The court a quo erred at law and grossly misdirected itself when it held that the error by the Estate Agents Council in relating to a wrong statutory provision when imposing a penalty against the appellant was a minor error which could be corrected by merely putting (b) where (c) was put in relation to s 32(1) (c) of the Estate Agents Act [Chapter 27.17].

The court a quo erred at law and grossly misdirected itself when it failed to find as it ought to have done that there was no need to deal with the appellant’s case on the merits once default judgment had been entered against the appellant.”

The appeal raises three issues. These are whether the disciplinary proceedings before the first respondent were validly conducted in the absence of the appellant, whether the appellant was furnished with a record of the proceedings before the first respondent, and lastly, whether the penalty imposed on the appellant is valid.

I turn to consider each of the three issues.

Whether the proceedings of the first respondent in the absence of the appellant were valid.

The appellant argued that the proceedings before the respondents in her absence cannot stand as she was not in wilful default. She further argued that there was a reasonable explanation for the non- attendance of her legal practitioner.

The argument that appellant was not in wilful default before the respondents was unsuccessful a quo. In rejecting it, the court a quo observed that the appellant was in wilful default as she had not filed her response to the charges by the agreed date and was herself not in attendance on the day of the hearing  at the scheduled time or at all. The court also found that there was no explanation why the response on the merits of the matter had not been filed and why the appellant herself had not attended the inquiry.

In addition to the above cogent findings, the court a quo could have added that there was also no explanation for the non-attendance of the appellant’s legal practitioner at the appointed hour which he had himself suggested.

One cannot fault the findings by the court a quo on this issue. The court correctly observed that the appellant had voluntarily chosen not to attend the inquiry. This is the nub of the matter. Put differently, the court a quo correctly found that the appellant took a calculated gamble that the inquiry would not procced in her absence and lost. She cannot therefore turn around and challenge the validity of the proceedings on the basis of her deliberate default not only in attending the hearing but in filing her response to the allegations levelled against her.

It is the position of the law in this jurisdiction that whilst a person who is the subject of a disciplinary inquiry or hearing must be afforded the right to be heard which right includes being present with or without legal representation, where such a person without good cause fails to attend the hearing or absconds from the hearing, the disciplinary tribunal can validly procced to decide on the matter in his or her absence. The right to be heard is not negated in these circumstances by the wilful refusal to speak when duly invited to do so. Where a person deliberately places himself and herself in a position where they cannot exercise the right to be heard, rules of procedure protect the validity of the proceedings concluded without hearing their side of the story. (See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Servcor (Pvt) Ltd v Guni & Others SC 40/16 and Chitzanga v Chairman PSC and Anor 2000 (1) ZLR 201 (HC)).

The court a quo therefore correctly found that the wilful default of the appellant in not only failing to attend the hearing but also in failing to respond to the allegations, which facts are common cause, did not vitiate the proceedings.

The appellant attacks the validity of the proceedings before the respondents on the other basis that after holding the appellant in default, the respondents should not have determined the matter on its merits.

The appellant did not cite any law that precludes a tribunal such as the first respondent from completing an inquiry in the absence of the member who voluntarily absents himself or herself from the inquiry. I am not aware of any. The respondents are empowered by the Act to inquire into the conduct of estate agents and persons employed in the estate agency business. The proceedings before the respondents are therefore inquiries. They are not regulated by the rules crafted for courts of law in civil trials which grant a discretion to the courts to enter a default judgment against a defaulting party in appropriate circumstances, without adverting to the merits of the matter.

On the above basis, it is therefore my finding against the appellant that the proceedings before the first respondent were valid.

Whether the appellant was denied access to the record of proceedings before the respondents.

Whether the appellant was furnished with a record of the proceedings before the respondents is largely a factual issue. The court a quo found that she was furnished with the record that the respondents kept which was in the form of the detailed decision of the respondents. No proper basis has been laid in the grounds of appeal upon which we can interfere with this factual finding.

In oral argument before us, counsel for appellant argued that the respondents did not keep a full record of the proceedings before the disciplinary committee. It was further argued that since evidence was led from the complainant, a record was essential to establish whether the evidence sustained the charges levelled against the appellant.

There is a clear disconnect between the ground of appeal and the argument allegedly advanced in support of the ground. Both do not have any merit.

In the ground of appeal, the appellant alleges that she was not given access to the record of proceedings before the respondents. On that basis she challenges the validity of the proceedings before the respondents as being in breach of the principles of natural justice.

If indeed the respondents had failed to keep a record of the proceedings and on account of that failure, were not in a position to furnish the appellant with a copy, the proceedings would have been vitiated. However, the evidence on record indicates that the respondents kept a record of the proceedings. This was duly furnished to the appellant. This gave rise to the oral argument that was advanced before us that the record so furnished was not “full”.

There is no standard by which to measure the fullness or otherwise of a record of proceedings of the respondents. There are no rules prescribing the content and form of such records. The appellant did not direct us to any.

In any event I note that of the ground of appeal attacking the absence of a record of the respondents’ proceedings was not raised a quo in the form that it was raised in this appeal. A quo the appellant alleged that she had been denied access to the full record. In ruling against the appellant on this point, the court a quo found that the written judgment constituted the full record of the proceedings and that accordingly, the appellant had been furnished with the full record of the proceedings as kept by the respondents.

On appeal, the appellant alleged that she had not been afforded access to the record of proceedings. The issue not having been ventilated a quo on this basis cannot be an issue on appeal as this will offend against the general rule that to ensure fairness, grounds of appeal do not mutate from one court to the next. They remain the same.

As indicated above, I find no merit in this ground of appeal.

Whether the penalty imposed on the appellant is valid

The appellant argued that the penalty imposed on her is invalid as the respondents cited the wrong provision of the Estate Agents Act in formulating the penalty.

The Act provides that if after due inquiry, the Council decides that a person who is not a registered estate agent but who acts as a director of a company or is a partner in a partnership that conducts real estate business, is guilty of conduct which would have constituted unprofessional dishonourable or unworthy conduct or negligence if he had been a registered estate agent, order that he or she shall not in any capacity participate in or have any financial interest in any company or partnership referred to in section sixty-three or be employed by any such company or partnership for such period as the Council may determine.

In casu, the respondents did not determine the period during which the declaration of unsuitability and the barring of the appellant from being associated with a company running real estate business would remain in force. This is a misdirection on the part of the respondents which vitiates the penalty imposed.

It is therefore my conclusion that the penalty imposed on the appellant must be set aside and the matter be remitted to the respondents for the assessment of an appropriate penalty.

In disposing of the matter, I note that the appellant did not advance any argument against the restitution order in favour of Long.

Regarding costs, since the appeal has been successful in part, it is just and equitable that each party bears its own costs.

In the result, I make the following order:

36.1.	The appeal is allowed in part with each party bearing its own costs.

36.2,	The judgment of the court a quo is set aside and is substituted with the following:

“1.	The appeal is allowed in part with each party bearing its own costs.

2.	The appeal against conviction is dismissed.

3.	The appeal against the penalty imposed on the appellant is allowed.

4. 	The penalty imposed on the appellant is set aside.

5.	The matter is remitted to the respondents for the assessment of an appropriate penalty.

6.	The appeal against the order of restitution in favour of Nancy Yu Ling Long is dismissed.”

MAVANGIRA JA	:		I AGREE

BEREJA		:		I AGREE

Antonio & Dzvetero, appellant’s legal practitioners.

V. S. Nyangulu & Associates, respondent’s legal practitioners.