Martin Masuka v Mafioni Rikonda and Others

The applicant filed an urgent chamber application on 31 January 2022 seeking to interdict the installation of the first respondent as substantive Chief Masuka of Gokwe South District scheduled for 9 February 2022. There was a dispute between the applicant and first respondent concerning rightful succession to the chieftainship, which was subject to review proceedings under HC 322/22. The application was filed by Chivaura & Associates through Mr V. Moyo. The first respondent opposed on preliminary grounds: (1) lack of urgency; and (2) that Mr Moyo had no right of audience. The Law Society confirmed by letter dated 26 January 2022 that Mr Moyo's employment at Madotsa & Partners had been terminated on 31 December 2021, making him unattached and without a valid 2022 practicing certificate. It was further revealed that Chivaura & Associates was under curatorship, with Mr Nkomo of DNM Attorneys as curator. Neither Mr Moyo nor Mr Chivaura held valid practicing certificates at the time of filing. Mr Moyo eventually conceded he had no right of audience. The applicant engaged new counsel, Mr R. Chikwari, who sought to proceed with the same papers.

• Whether legal practitioners without valid practicing certificates can accept mandates from clients and file court documents
• Whether proceedings instituted by legal practitioners in contravention of section 12 of the Legal Practitioners Act are valid
• Whether a law firm under curatorship can accept new mandates without the curator's knowledge
• Whether fraudulent acts by legal practitioners can be sanitized by new counsel taking over the matter on the same papers
• Whether costs can be awarded against legal practitioners personally (de bonis propriis)
• Whether a client should suffer for the sins of their legal practitioner

1. The application was struck off the roll of urgent matters. 2. The Registrar was directed to bring a copy of the judgment to the attention of the Secretary of the Law Society of Zimbabwe and the curator of Chivaura & Associates. 3. Mr V. Moyo and Mr Chivaura were ordered to pay the first respondent's costs of suit on the attorney-client scale de bonis propriis (in their personal capacities), the one paying the other to be absolved.

Acts done by legal practitioners in contravention of section 12 of the Legal Practitioners Act (practicing without valid practicing certificates) are fraudulent and void ab initio. Court proceedings instituted by such practitioners are null and void and cannot be sanitized by new counsel simply taking over on the same papers. The principle ea quae lege fieri prohibentur (what is done contrary to prohibition of law is void and of no effect) applies to invalidate such proceedings. Legal practitioners as officers of the court owe duties not only to clients but to the court, and conduct that undermines the regulatory framework warrants both personal costs orders and referral to the Law Society. A law firm under curatorship cannot accept new mandates without the curator's knowledge or authorization.

The court made several non-binding observations: (1) The application was "brimming with errors of an elementary nature" that "betray a complete lack of attention to detail which is shocking at this level of the practice of the law." (2) The answering affidavit "appears more like an essay prepared by an ordinary level student" with unnumbered paragraphs contrary to rules of court. (3) It is "an insult to the integrity of the courts and the legal profession for counsel to appear before a court and pour scorn on official positions communicated by a body that has the statutory mandate to regulate their affairs, without putting forward any evidence to contradict those positions." (4) The court emphasized that legal practitioners must be reminded they are officers of the court. (5) The court noted that neither Moyo nor Chivaura showed remorse for their conduct. (6) To condone such fraud "would lead to an erosion of public confidence in the legal profession and its honoured founding values that have been revered for generations."

This case is significant for establishing clear consequences for legal practitioners who practice without valid practicing certificates or from law firms under curatorship. It affirms the court's power to strike down proceedings tainted by fraudulent conduct at inception, even when new counsel seeks to take over. The judgment reinforces professional ethics standards and the court's supervisory role over the legal profession. It demonstrates that courts will not hesitate to award personal costs against practitioners who flout statutory prohibitions, and will refer matters to the Law Society for disciplinary action. The case serves as a stern warning about the consequences of practicing law without proper accreditation and the duty of legal practitioners as officers of the court.