Agricultural Bank of Zimbabwe Ltd t/a Agribank v John Mutero and Norman Bayiwa

This matter came before the court for a pre-trial conference between the plaintiff (Agribank) and the second defendant (Norman Bayiwa). The second defendant was represented by Mr. Laita of Laita and Partners in Marondera, with Mahuni & Mutatu as correspondent lawyers in Harare. The pre-trial conference was initially set down for 30 September 2016. On that date, Mr. Laita sent the second defendant to attend alone without explanation. The court postponed to 6 October 2016 and instructed the second defendant to attend with his lawyer or for the lawyer to renounce agency. On 6 October 2016, Mr. Laita again failed to attend and had not renounced agency. The matter was postponed to 14 October 2016. On that date, Mr. Laita sent the correspondent lawyer Mr. Mahuni instead. The court then invited Mr. Laita by letter dated 17 October 2016 to show cause on 21 October 2016 why he should not pay costs de bonis propriis. Mr. Laita failed to attend on 21 October 2016, and the matter was postponed to 31 October 2016. On 31 October 2016, Mr. Laita again sent Mr. Mahuni in his place.

• Whether a legal practitioner's repeated non-attendance at court proceedings without renouncing agency constitutes conduct warranting an order for costs de bonis propriis
• Whether a legal practitioner's failure to comply with a court instruction to attend and show cause justifies punitive costs orders
• The proper application of Order 2 r 6 of the High Court Rules, 1971 regarding renunciation of agency
• Whether the legal practitioner's conduct warranted referral to the Law Society of Zimbabwe

1. Mr. Laita was ordered to pay to the plaintiff costs de bonis propriis on the attorney-client scale for all the postponements which were occasioned by his non-attendance. 2. The Registrar was ordered to bring Mr. Laita's conduct to the attention of the Law Society of Zimbabwe. 3. The Registrar was ordered to furnish the Law Society of Zimbabwe with the judgment.

A legal practitioner who deliberately and persistently fails to attend court proceedings on multiple occasions without renouncing agency, and who disregards clear court instructions including an invitation to show cause why punitive costs should not be awarded, exhibits conduct that is sufficiently improper, disrespectful, and contemptuous to warrant an order for costs de bonis propriis against the practitioner personally. Such conduct, which causes unnecessary postponements, wastes judicial time, and imposes unnecessary costs on parties, demonstrates unreasonable, irresponsible, and grossly reckless behaviour warranting exceptional remedies. A legal practitioner who wishes to cease representing a client must comply with the rules of court regarding renunciation of agency (Order 2 r 6 of the High Court Rules, 1971), and cannot simply abandon a matter by failing to attend without formal renunciation.

The court observed that awards of costs de bonis propriis are not made lightly against legal practitioners and are reserved for cases where a legal practitioner has exhibited really improper conduct. The court noted that Mr. Laita's conduct showed a lack of concern as to the consequences of his actions. The judgment also implicitly comments on the importance of legal practitioners maintaining proper communication with their clients, as evidenced by the second defendant's inability to explain his lawyer's non-attendance and being sent to court alone without proper instruction. The court's decision to refer the matter to the Law Society of Zimbabwe reflects the broader principle that professional misconduct should be addressed not only through court sanctions but also through the professional regulatory framework.

This case is significant in Zimbabwean (and relevant to South African) jurisprudence as it demonstrates the circumstances under which courts will exercise their discretion to award costs de bonis propriis against legal practitioners personally. It reinforces the principle that legal practitioners owe duties not only to their clients but also to the court, and that deliberate, persistent non-compliance with court procedures and instructions constitutes conduct serious enough to warrant exceptional punitive cost orders. The judgment emphasizes the importance of professional conduct, respect for court processes, and the proper application of rules regarding renunciation of agency. It serves as a warning to practitioners that disrespectful and contemptuous conduct towards the court will be met with severe consequences, including personal liability for costs and referral to the professional regulatory body.