Sahawi International (Pty) Limited and Yakub Ibrahim Mahomed v John Arnold Bredenkamp and Breco International (Private) Limited

The plaintiffs issued summons on 25 August 2008 claiming US$3,872,123.00 plus interest from the defendants, alleging that this debt arose from advances and loans made to the defendants between 1 February and 9 November 2001. The total sum advanced was alleged to be $4,272,123.00, with $400,000.00 having been repaid. The defendants denied the contract and pleaded that if any advances were made, they were made to a company registered in the Democratic Republic of Congo (KMC Limited) in which the first defendant had interests. Five days before the trial resumed in October 2009, the plaintiffs' legal practitioners wrote to the Law Society and the Minister of Justice raising concerns that the defendants' counsel, Advocate de Bourbon, had been issued a 2009 practicing certificate based on misrepresentation that he was a partner in Costa and Madzonga, and that he no longer satisfied the residence requirement of section 5 of the Legal Practitioners Act as he was residing in Cape Town, South Africa. At the hearing, the plaintiffs objected to Advocate de Bourbon's right of audience before the court.

• Whether a legal practitioner who is no longer ordinarily resident in Zimbabwe automatically loses the right of audience before Zimbabwean courts
• Whether the issuance of a practicing certificate to a legal practitioner who is not ordinarily resident in Zimbabwe without a residence exemption certificate invalidates that certificate
• What is the proper procedure for challenging the validity of a practicing certificate issued by the Law Society
• Who has the locus standi to bring an application for de-registration of a legal practitioner under section 6(2) of the Legal Practitioners Act
• Whether an objection to a legal practitioner's right of audience can be raised during trial proceedings or whether review proceedings are required

The objection was dismissed with costs.

A registered legal practitioner who holds a valid practicing certificate issued by the Law Society enjoys the right of audience in the courts until that practicing certificate lapses by effluxion of time, is lawfully withdrawn, or is set aside on review. The loss of ordinary residence in Zimbabwe by a legal practitioner does not automatically deprive that practitioner of the right of audience; rather, the proper legal recourse is for the Law Society to apply to the High Court under section 6(2) of the Legal Practitioners Act for deletion from the register, or for an interested party to bring review proceedings to set aside an improperly issued practicing certificate. Normal residency requirements under section 5(1) of the Act relate to initial registration and ongoing registration status, while the right of audience is determined by possession of a valid practicing certificate issued by the Law Society.

The court made several non-binding observations: (1) The question of whether any person (including litigants) has locus standi to bring an application under section 6(2) of the Act for de-registration of a legal practitioner is an interesting one that calls for examination of the rights of the public to bring applications at common law in the public interest, but the court did not need to determine this issue. (2) The court expressed strong disapproval of the practice of parties writing directly to the presiding judge, emphasizing that all correspondence to and from the court must be through the Registrar's office. (3) The court noted that the correct procedure to set aside a practicing certificate is by way of review proceedings, which would enable applicants to allege grounds upon which the decision to issue the certificate can be impugned. (4) The court commented that had the matter been properly brought as a review, the plaintiffs' contention that the certificate was issued on the false premise that Advocate de Bourbon was practicing as a partner when he was actually practicing as an advocate might have constituted a recognizable ground for review on the basis that the decision was grossly unreasonable. (5) The court expressed hope that the conduct of the parties would not set a precedent for future conduct in the court.

This case is significant in Zimbabwean legal practice as it clarifies the distinction between registration as a legal practitioner and the right of audience conferred by a practicing certificate. It establishes that loss of ordinary residence in Zimbabwe does not automatically result in loss of right of audience, and that the proper procedure for challenging a legal practitioner's status involves either application by the Law Society under section 6(2) of the Legal Practitioners Act for de-registration, or review proceedings to set aside an improperly issued practicing certificate. The case also reinforces proper professional etiquette and procedure, emphasizing that parties should not correspond directly with the presiding judge and that administrative decisions of the Law Society should be challenged through formal review proceedings rather than informal objections during trial. The judgment demonstrates the court's supervisory role over administrative bodies like the Law Society while respecting the separation of administrative and judicial functions.