Nighert Parween Savania and Estate Mahendira-Kumar Jivan Savania N.O v Nathan Mnaba and Norwich Trading (Pvt) Limited and Registrar of Companies and Registrar of Deeds

The applicants filed an urgent chamber application seeking an interdict to prevent the first respondent from disposing and transferring title in land registered under Deed of Transfer 6224/94 until rights and obligations were determined in HC 9654/13. The application was opposed by the first and second respondents who raised a point in limine regarding conflict of interest. Mr. Admire Rubaya, Senior Partner of Messrs. Rubaya and Chatambudza (the applicants' legal practitioners), had previously represented the first respondent Nathan Mnaba. The first respondent disclosed to Mr. Rubaya about the present dispute. When the first applicant was arraigned before the Magistrates Court on fraud charges related to this matter and represented by Mr. Rubaya, the prosecutor applied for disqualification based on conflict of interest. Mr. Rubaya then recused himself and the first applicant was represented by another attorney. Despite this recusal, Messrs. Rubaya and Chatambudza continued to represent the applicants in the current matter, instructing Advocate Zhuwarara to appear on their behalf.

• Whether legal practitioners who previously represented a respondent should be disqualified from representing the applicants in the same matter on grounds of conflict of interest
• Whether the duty of loyalty and confidentiality owed to a former client extends to all members and employees of a law firm
• Whether an application should be struck from the roll due to conflict of interest of the applicants' legal practitioners

The point in limine was upheld and the application was struck off the roll.

A legal practitioner who has represented a party in a matter cannot subsequently represent the opposing party in the same or related matter involving the same issues. This prohibition extends to all partners and employees of the legal practitioner's firm. The duty of loyalty and confidentiality owed to a former client is absolute and requires legal practitioners to avoid any situation where there is potential conflict of interest or where confidential information obtained from a former client might be used to the prejudice of that former client. Where such conflict exists, the court will strike the application from the roll to protect the integrity of the legal profession and ensure justice is not only done but seen to be done.

The court observed that Mr. Rubaya's statement in his affidavit about the first respondent being "afraid" that he would raise issues about impropriety in share transfers and evasion of capital gains tax "speaks volumes about what Mr Rubaya knows before-hand vis-a-vis the dispute between the applicants and the respondents." The court noted that the confidence of the client is absolute and must be preserved by the attorney, and this preservation of confidence extends to curbing breach of confidence by staff members who inevitably receive confidential information in the course of their work. The court referenced the principle from American jurisprudence that "there are few of the business relations of life involving a higher trust and confidence than that of attorney and client" and that courts have a duty to ensure that confidence is not used to the detriment or prejudice of the party bestowing it.

This case reinforces the strict ethical standards applicable to legal practitioners in Zimbabwe regarding conflict of interest. It establishes that the prohibition against acting for clients with conflicting interests extends to all members and employees of a law firm, not just the individual practitioner who previously represented the opposing party. The case emphasizes that even the appearance of conflict must be avoided, applying the principle that justice must not only be done but be seen to be done. It demonstrates that courts will strike applications from the roll where the applicants' legal representatives are conflicted, protecting the integrity of the legal profession and ensuring fairness in litigation.