Core Mining and Minerals Resources (Pvt) Ltd v The Zimbabwe Mining Development Corporation and Others

This was an urgent chamber application in which a preliminary point was raised regarding the propriety of the legal practitioner Mr Mutamangira and his firm representing the first and second respondents. The applicant alleged that Mr Mutamangira was intimately and emotionally interested in matters involving the parties, having been involved in investigations leading to prosecution of the applicant's deponent. The firm had also prepared and commissioned affidavits filed on behalf of the respondents. Evidence showed that Mr Mutamangira attended a meeting on 19 October 2010 where decisions were made regarding the transfer of the applicant's shares, and he had been involved in an investigation into the fourth respondent's affairs at the behest of the fifth respondent (the Minister).

• Whether a legal practitioner who has been intimately involved in the affairs leading to litigation can properly represent a party in those proceedings
• Whether affidavits commissioned by a legal practitioner from the same firm representing a party can be admitted
• Whether a legal practitioner can represent a government minister or whether only the Attorney-General can provide such representation
• The extent to which a legal practitioner must maintain independence from a client's affairs

The preliminary point raised by the applicant's legal practitioner was upheld to the extent that Mr Mutamangira and the legal firm Messrs Mutamangira & Associates were not allowed to continue appearing as legal practitioners for and on behalf of the first and second respondents. No determination was made regarding representation of the fifth respondent.

A legal practitioner who has participated in the affairs at issue in litigation at a level that goes beyond providing legal advice cannot properly appear as counsel for a party in those proceedings. Where a legal practitioner has aligned himself so closely with a client's case that he displays an interest going beyond that of a legal practitioner, or has performed acts materially related to the dispute before the court, he should only be permitted to appear as an agent rather than as legal practitioner. Additionally, affidavits should be sworn before a commissioner of oaths who is independent of the office in which they are drawn, and affidavits sworn before an attorney or partner of an attorney acting for the deponent are objectionable and should not be admitted.

The court observed that a legal practitioner's duty is to protect the interests of his client and to give legal advice, but it is not the function of the legal practitioner to step into the shoes of the client and perform acts materially related to the dispute before the court in an endeavor to buttress the case of his client. The court also noted the age-old principle that justice must not only be done; it must be seen to be done. The court indicated that it would have expected a ready concession to be made once the issue of impropriety was raised, if the undesirability of the representation had not been appreciated earlier. Regarding the representation of the fifth respondent by the Attorney-General, the court noted this aspect was not fully ventilated and insufficient information was placed before it.

This case reinforces important principles of legal ethics and professional conduct in Zimbabwe, particularly regarding the independence that legal practitioners must maintain from their clients' affairs. It emphasizes that legal practitioners should not become so intimately involved in the substantive matters giving rise to litigation that they effectively step into the shoes of the client. The case also affirms the principle that affidavits should be commissioned by independent commissioners of oaths, not by legal practitioners from the firm representing the deponent. The judgment serves as a reminder that justice must not only be done but must be seen to be done, and that legal practitioners must maintain professional distance and independence.