Jacob Kotze Carstens v Edward Mark Warhurst N.O. and Others

The applicant, a Chief Mining Engineer and shareholder in Rolldice Mining Services (Private) Limited (2nd respondent), sought a prohibitory interdict against the 1st respondent, a legal practitioner who was the judicial manager of the 2nd respondent since 15 July 2015. The applicant had founded the 2nd respondent in 2003, and the 1st respondent had made financial investments in the company with shareholding arrangements to be formalized. Relations between the parties broke down completely, leading to the applicant filing an application on 7 April 2021 for the removal of the 1st respondent as judicial manager. On 3 June 2021, the applicant was informed of misconduct charges and a disciplinary hearing scheduled for 11 June 2021. On 7 June 2021, the 1st respondent summarily suspended the applicant, required him to vacate premises immediately, and surrender company documents and gold receipts. The applicant filed an urgent chamber application on 9 June 2021 seeking to interdict the 1st respondent from evicting him and proceeding with the disciplinary hearing pending determination of the removal application. The matter was set down for 11 June 2021, the same day as the scheduled disciplinary hearing.

• Whether the 1st respondent and his counsel breached an undertaking to preserve the status quo ante by proceeding with the disciplinary hearing during the postponement of the urgent application
• Whether legal practitioners have an obligation to keep in abeyance the execution of acts that are the subject of pending litigation
• Whether the conduct of the 1st respondent and his counsel amounted to an abuse of court process
• The ethical obligations of legal practitioners as officers of the court when their client's conduct is the subject of pending litigation

The urgent chamber application was removed from the roll of urgent matters with no order as to costs.

Legal practitioners, as officers of the court, must act in a professional and honourable manner and must not act in a way that defeats or frustrates the determination of applications before the court, especially where the matter has already commenced. When an undertaking is given to preserve the status quo ante pending the hearing of an urgent application, this requires the suspension of all acts that are the subject of the litigation, not a selective approach. Where a legal practitioner seeks a postponement of an urgent application and gives an undertaking to preserve the status quo, proceeding with the very acts complained of during the postponement period amounts to a breach of that undertaking and an insult to the integrity of the court and its processes. Although there is no substantive rule of law obliging legal practitioners to keep in abeyance the execution of acts that are the subject of pending litigation, out of respect for due process, legal practitioners must accord the court an opportunity to pronounce on the propriety of acts complained of before executing them.

The court noted that while it was constrained to comment on the rectitude of the disciplinary proceedings leading to the dismissal of the applicant, coming as they did on the backdrop of service of the urgent chamber application seeking their suspension and the undertaking made to suspend them, it could conclude that the postponement was meant to afford the 1st respondent an opportunity to circumvent the determination of an issue before the court. The court observed that the disciplinary hearing was "clearly farcical" but gave no determination on its validity, noting that this would have to be dealt with as a separate issue. The court also observed that the conduct of filing an urgent application (HC 3084/21) seeking relief pending disciplinary proceedings that had already been concluded "clearly smacks of chicanery". The judge emphasized that a litigant approaching the court on an urgent basis is making an important statement of intent by submitting to the court for interrogation of perceived harm, and that legal practitioners representing respondents must not act in a manner that defeats or frustrates this process, as such conduct "makes fun of the justice delivery system".

This case is significant in Zimbabwean jurisprudence for establishing important principles regarding the ethical obligations of legal practitioners as officers of the court. It emphasizes that legal practitioners must not act in a manner that defeats or frustrates the determination of applications before the court, particularly where they have given undertakings to preserve the status quo. The case underscores the importance of professional conduct and respect for court processes, even where there may be no substantive rule of law obliging practitioners to keep acts in abeyance. It serves as a strong rebuke against manipulating court procedures and processes to achieve outcomes contrary to pending litigation. The judgment also addresses the abuse of urgent chamber applications and the consequences of proceeding with actions that are the subject of pending litigation after service of court papers.