Standard Press (Pvt) Ltd v Crispen Makedenge

The applicant (Standard Press) sought to intervene as a negotiorum gestio in an action (HC 8581/11) in which the respondent had sued Patience Nyangove as first defendant and "Standard Newspaper" as second defendant. The applicant sought to file a special plea in abatement on behalf of the second defendant, serving the application on respondent's legal practitioners (Thondhlanga and Associates) on 24 October 2011. On 4 November 2011, the respondent withdrew the action against the second defendant and tendered wasted costs, acknowledging the error of suing an object (Standard Newspaper) instead of a person. On 7 November 2011, a different firm (Phiri and Associates) filed a notice of opposition on behalf of the respondent, though the original firm (Thondhlanga and Associates) later filed heads of argument. The respondent opposed the application for costs de bonis propiis against his legal practitioners.

• Whether the application for a special plea in abatement remained competent after withdrawal of the offending citation
• Whether costs de bonis propiis should be awarded against the respondent's legal practitioners
• Whether the legal practitioners' conduct demonstrated gross professional incompetence and lack of diligence warranting personal costs orders
• Whether the improper filing of opposition by a different firm without proper assumption of agency affected the proceedings

It was ordered that: (1) The respondent's legal practitioner Ms Rekai Maposa of Thondhlanga and Associates shall bear the costs incurred by the applicant in this application de bonis propiis, as between legal practitioner and client; and (2) The Registrar is directed to bring this judgment to the attention of the Secretary of the Law Society of Zimbabwe.

A legal practitioner may be ordered to pay costs de bonis propiis (from their own pocket) on a legal practitioner-client scale where they have demonstrated gross professional incompetence and lack of due diligence that has caused an opposing party to incur unnecessary costs. Elementary errors such as suing a non-legal entity instead of a legal person, failing to timeously deliver correspondence, improperly filing court documents without proper authority, and persisting with opposition when costs should have been tendered, constitute sufficient grounds for a personal costs order against the legal practitioner. The court has inherent jurisdiction to censure legal practitioners for unprofessional conduct and to refer such conduct to the Law Society for disciplinary consideration.

The court made observations about the incomprehensible explanation given by Ms Maposa regarding why Phiri and Partners filed opposition when it was actually Thondhlanga and Associates who were opposing. The court noted it was improper for Phiri and Partners to purport to represent the respondent without filing an assumption of agency and in the absence of a renunciation of agency from Thondhlanga and Associates. The court also commented that the discrepancy between the date on the letter (3 September 2011) and the date it was hand delivered (4 November 2011) "demonstrates that all is not well in her legal practice." These observations, while supporting the ratio, go beyond what was strictly necessary for the decision and serve as general commentary on professional standards.

This case is significant for establishing the standards of professional conduct expected of legal practitioners and the consequences of failing to meet those standards. It demonstrates the court's willingness to impose personal costs orders (de bonis propiis) against legal practitioners who display gross incompetence and lack of diligence. The referral to the Law Society emphasizes the court's role in maintaining professional standards in the legal profession. The case also clarifies procedural requirements regarding assumption of agency and renunciation of agency when legal practitioners change, and reinforces that parties who commit procedural errors causing unnecessary litigation should bear the consequences, including their legal representatives when the errors are attributable to professional negligence.