Matupula Hunters (Pvt) Ltd v Lodzi Hunters (Pvt) Ltd

This matter was set down for trial on 2 and 3 February 2022 to commence at 10:00. The defendant did not attend. Counsel for the defendant (Adv. Dube) was briefed telephonically on the morning of the trial by Mr Ncube of Ncube Attorneys to seek a postponement. The notice of set-down was served on 17 January 2022, approximately two weeks before trial. The defendant had instructed Ncube Attorneys to renounce agency and appointed Webb Low and Barry Legal Practitioners, but no notice of renunciation was filed, leaving Ncube Attorneys still seized with the matter. Mr Sithole of Ncube Attorneys, the legal practitioner handling the matter, was unavailable on the trial date. Mr Ncube was in Victoria Falls and only learned of the set-down on 1 February 2022. Mr Sithole arrived at court at approximately 11:30 on the trial date, claiming he had left Bulawayo on 31 January to ferry a sick relative to Nkayi, had a breakdown, and only returned on 2 February. This version conflicted with the initial basis for the postponement application and with Mr Sithole's movements as recorded in another case (HC 214/22).

• Whether the trial should be postponed
• Who should bear the costs of the postponement
• Whether costs de bonis propriis should be ordered against the legal practitioner personally
• Whether Ncube Attorneys as a firm should be sanctioned
• The applicable test for awarding costs de bonis propriis against legal practitioners

1. The trial was postponed to 29 and 30 March 2022. 2. Ncube Attorneys were ordered not to charge the defendant any fees for the postponement application. 3. Mr N. Sithole of Ncube Attorneys was ordered to pay the plaintiff's wasted costs de bonis propriis on a legal practitioner and client scale.

Costs de bonis propriis will be awarded against a legal practitioner as an exceptional measure in circumstances involving dishonesty, mala fides, willfulness, or professional negligence of a high degree. The critical factor is whether justice demands such an order. A legal practitioner who is seized with a matter, receives proper notice of a set-down date, fails to take steps to protect the client's interests (such as renouncing agency when instructed to do so), becomes unavailable on the trial date without making alternative arrangements, and provides conflicting explanations for their conduct, is guilty of gross professional negligence warranting an order for costs de bonis propriis. A legal practitioner cannot escape personal liability by claiming the client has agreed to pay costs on a higher scale. Courts may impose dual sanctions: ordering the legal practitioner to pay costs de bonis propriis and disallowing recovery of fees from the client for the matter in question.

The court made observations about the indulgent nature of postponement applications, noting that even where an opposing party agrees to a postponement, it remains an indulgence and does not change the general expectation that the party seeking the postponement should pay costs occasioned thereby. The court noted its skepticism regarding Mr Sithole's version of events, fortified by reference to affidavit evidence in an unrelated case (HC 214/22) which contradicted his explanation of his movements and whereabouts. The court observed that Mr Sithole's failure to comply with a previous costs de bonis propriis order in case HC 9482/19 cannot be a reason not to hold him accountable in the present case, as he cannot benefit from his failure to comply with a court order. The court emphasized that legal practitioners are officers of the court who owe an appropriate level of professionalism and truthfulness to the court.

This case is significant in Zimbabwean jurisprudence for its application of the principles governing when costs de bonis propriis should be awarded against legal practitioners personally. It demonstrates the courts' willingness to sanction legal practitioners who exhibit gross professional negligence and conduct unbecoming of the profession. The case also illustrates the principle that legal practitioners cannot hide behind their clients' agreement to pay costs on a higher scale when their own conduct has caused prejudice. The judgment reinforces professional standards expected of legal practitioners and their duties to the court and clients. It shows that courts may apply dual sanctions: costs de bonis propriis against the practitioner personally and disallowing fees recoverable from the client. The case also demonstrates judicial willingness to take note of its own records in other matters to assess the credibility of explanations provided by legal practitioners.