Antonio & Dzvetero Legal Practitioners and Others v The Executive Secretary of the Law Society and Others

The 2nd and 3rd applicants are registered legal practitioners practicing in partnership under the name Antonio & Dzvetero Legal Practitioners (1st applicant). On 28 March 2019, the respondents delivered a letter advising that the 1st applicant had been placed under curatorship and that the 3rd applicant would be referred to the Legal Practitioners Disciplinary Tribunal regarding a complaint by Mr and Mrs Chitagu. On 27 March 2019, the respondents withdrew the 3rd applicant's practicing certificate, stating it had been issued in error and that the applicant had failed to fulfill an undertaking to surrender it. The 3rd applicant was also referred to the tribunal under LPDT17/18 for various alleged cases of unethical conduct. The applicants challenged these decisions on grounds of illegality, procedural impropriety, gross irregularity/irrationality, and bias.

• Whether the withdrawal of the 3rd applicant's practicing certificate was lawful and procedurally fair
• Whether the decision to place the 1st applicant under curatorship was lawful (subsequently conceded by respondents)
• Whether the referral of the 3rd applicant to the Legal Practitioners Disciplinary Tribunal was properly made and procedurally fair
• Whether the respondents complied with section 78 of the Legal Practitioners Act in withdrawing the practicing certificate
• Whether the respondents complied with section 68 of the Constitution and section 3 of the Administrative Justice Act in affording the applicants fair administrative action
• Whether there was bias on the part of the respondents

The court granted the relief sought: (1) The resolution of 26 November 2018 was declared null and void and set aside; (2) The revocation and withdrawal of the 3rd applicant's practicing certificate was declared null and void and set aside; (3) The decision to refer various alleged cases of unethical conduct to the Legal Practitioners Disciplinary Tribunal regarding the 3rd applicant's suitability and fitness to practice was set aside; (4) The prosecution of various cases referred to the tribunal under LPDT17/18 was set aside; (5) Each party to meet its own costs.

The binding legal principles established are: (1) An administrative decision that is ultra vires statutory requirements is a nullity and must be set aside (applying Kambasha Bros & Anor v Thompson & Anor 1971 (1) SA 155 (SR) and Muchakata v Netherburn Mine 1996 (2) ZLR 153 (S)); (2) Where statute prescribes a specific procedure (such as section 78 of the Legal Practitioners Act requiring due inquiry by the Council before withdrawing a practicing certificate), that procedure must be followed strictly; (3) A decision made by an official without statutory authority to make such decision is void - only the body vested with the power by statute can validly exercise it; (4) Section 68 of the Constitution and section 3 of the Administrative Justice Act require that any administrative action affecting rights must be lawful, reasonable, procedurally fair, and give adequate notice and opportunity to make representations; (5) An administrative decision must be supported by evidence and findings of fact - a decision taken without addressing crucial factual issues or without considering a party's defence is procedurally irregular and irrational; (6) Failure to conduct an inquiry mandated by statute before taking adverse action against a person constitutes both illegality and procedural impropriety warranting review.

The court made several non-binding observations: (1) While there were violations of procedural and substantive fairness, the court was not prepared to make a definitive finding of bias or mala fides against the respondents; (2) The court noted that the respondents had a legitimate statutory responsibility to regulate legal practitioners and appeared to be attempting to discharge that responsibility, albeit improperly; (3) The court observed that even where section 87(1) of the Legal Practitioners Act did not expressly require an inquiry, constitutional and common law principles of natural justice would still require a hearing before withdrawing a practicing certificate; (4) The court endorsed the principle from Cora Hoexter's Administrative Law in South Africa that "a decision must be supported by the evidence and information before the administrator as well as the reason given for it. It must also be objectively capable of furthering the purpose for which the power was given"; (5) The court commented that costs normally follow the result but exercised discretion not to award costs against the respondents given the absence of bad faith, despite their failure to observe legal requirements; (6) The court noted that the supplementary affidavit was properly filed pursuant to an order of Charewa J and should be admitted in the interests of justice to place historical facts on record (applying Codier v Codier 1984 (4) SA 524).

This case is significant in Zimbabwean administrative law for several reasons: (1) It affirms the strict requirements for administrative bodies to comply with statutory procedures, particularly in professional regulation; (2) It emphasizes that decisions affecting rights must be made by the statutorily designated authority - delegation or assumption of powers by another official renders decisions ultra vires and void; (3) It reinforces the constitutional and statutory requirements for fair administrative action under section 68 of the Constitution and section 3 of the Administrative Justice Act, including the right to be heard (audi alteram partem); (4) It establishes that administrative decisions must be supported by evidence and findings of fact - failure to make necessary findings before taking adverse action constitutes gross irregularity; (5) It demonstrates judicial willingness to review decisions of professional regulatory bodies when procedural fairness is not observed; (6) It shows that even where bodies are exercising legitimate regulatory functions, failure to observe legal requirements will result in decisions being set aside as nullities.