Law Society of Zimbabwe v Toindepi Mahaso

The Law Society of Zimbabwe sought deregistration of the respondent, a registered legal practitioner, from the register of Legal Practitioners, Notaries Public and Conveyancers. The respondent was alleged to have embezzled trust monies entrusted to him by clients for purposes of buying houses, failed to respond to correspondence from the Law Society, abandoned his legal practice without notification, and failed to submit annual reports as required by law. On 29 July 2008, the respondent was convicted in the Magistrates Court and sentenced to 24 months imprisonment (3 months suspended) for fraud arising from the fraudulent sale of a house during the course of his practice. The disciplinary application was filed in 2002 but the respondent was out of the country and only returned in 2003. The hearing experienced significant delays from 2002 to 2013, with multiple postponements at the respondent's instance and other institutional factors.

• Whether the delay in concluding the disciplinary hearing violated the respondent's constitutional right to a fair hearing within a reasonable time under section 18(9) of the Constitution
• Whether the respondent's criminal conviction created a presumption of guilt in the disciplinary proceedings
• Whether the respondent's conduct warranted deregistration from the register of legal practitioners

1. The application was allowed with costs. 2. The respondent's name was deleted from the Law Society's register of Legal Practitioners, Notaries Public and Conveyancers in terms of section 28(1)(c)(i) of the Legal Practitioners Act [Cap 27:07].

1. A delay in disciplinary proceedings does not violate the constitutional right to a fair hearing within a reasonable time under section 18(9) of the Constitution where the respondent contributed to or consented to the delays through multiple applications for postponement and other delaying tactics. The principle of volenti non fit injuria applies - there can be no harm where there is consent. 2. Under section 31(3) of the Civil Evidence Act, a criminal conviction by a competent court creates a rebuttable presumption that the convict committed all acts constituting the offence, shifting the onus to the convicted person to prove innocence on a balance of probabilities in subsequent civil or disciplinary proceedings. 3. A legal practitioner who perpetrates fraud in the course of duty warranting imprisonment is beyond redemption and warrants deregistration from the register of legal practitioners.

The court observed that what constitutes 'reasonable time' under section 18(9) of the Constitution depends on the prevailing circumstances and exigencies of each given case. The court noted that where there has been prolonged delay, there must be a reasonable explanation for the delay to avoid permanent stay of proceedings, citing Bruce Ivin Whatson v The State SC 17/06. The court also commented on the respondent's submissions as portraying 'a very misleading picture' and described his complaint about delay as 'smacking of dishonesty and a set mind to mislead' given that he was largely responsible for the delays. The court further noted that given the damning finding regarding the criminal conviction, it was no longer necessary to determine all the other allegations leveled against the respondent.

This case is significant in Zimbabwean legal practitioners' disciplinary law as it: (1) clarifies that delays in disciplinary proceedings do not automatically constitute constitutional violations where the respondent contributed to or acquiesced in those delays; (2) demonstrates the application of section 31(3) of the Civil Evidence Act in disciplinary proceedings, establishing that criminal convictions create rebuttable presumptions of guilt that shift the onus to the convicted practitioner; (3) reinforces the principle established in Chirambasukwa and Aitken that legal practitioners convicted of fraud involving dishonesty in the course of practice are beyond redemption and warrant deregistration; and (4) illustrates the high standards of integrity required of legal practitioners and the profession's zero-tolerance approach to dishonest conduct, particularly involving breach of trust.