The Law Society of Zimbabwe v Tichaona Govere

The respondent was registered as a legal practitioner, conveyancer and notary public on 12 December 2007. The Law Society of Zimbabwe sought to have his name deleted from the Register based on allegations of unprofessional conduct. The respondent had represented Communication & Allied Industries Pension Fund in an action against Mr. Tafadzwa Chinamo for arrear rentals of US$27,000.00. The parties appeared in court on 25 October 2012, where it was allegedly argued and conceded that Mr. Chinamo had paid US$5,000.00 as part of arrear rentals. Despite this, the court issued an order for US$27,000.00. After discussions between the respondent and Mr. Gumbo (representing Chinamo), it was allegedly agreed the order should reflect US$22,000.00. Mr. Chinamo paid US$16,000.00 and later US$6,569.82 into the respondent's trust account. Despite receiving proof of these payments, the respondent instructed the Messenger of Court to attach goods to satisfy the court order, forcing Mr. Chinamo to pay an additional US$5,812.00 to forestall seizure. A complaint was lodged with the Law Society on 20 February 2013 alleging the respondent contravened s 23(2)(b) of the Legal Practitioners Act by instructing attachment of property for a debt already paid.

• Whether the Law Society's Council properly deliberated on the recommendations of the Disciplinary Ethics Committee (DEC) as required by s 26 of the Legal Practitioners Act read with s 63 of the By-Laws, 1982
• Whether the DEC and Council conducted full and proper investigations before referring the matter to the Tribunal
• Whether the charges preferred against the respondent were sufficiently clear, specific and certain to enable the respondent to properly defend himself
• Whether the matter was prematurely referred to the Tribunal

The matter was struck off the roll with costs in favour of the respondent.

The binding legal principles established are: (1) The Law Society's Council must genuinely deliberate on the recommendations of the Disciplinary Ethics Committee and cannot simply adopt DEC findings verbatim without independent consideration, as required by s 26 of the Legal Practitioners Act read with s 63 of the By-Laws, 1982. Evidence of mere 'cut and paste' of DEC minutes demonstrates non-compliance with this mandatory requirement. (2) The Law Society must conduct reasonably fair and transparent investigations before referring a matter to the Disciplinary Tribunal. Where a complaint centers on what transpired during court proceedings, the investigating body must obtain the court record before finalizing its investigation and making a referral. (3) Charges in disciplinary proceedings must be clear, specific and certain to enable the legal practitioner to know the case to answer. An applicant cannot charge a contravention of one provision in the application and then address arguments on different provisions in heads of argument. The charges cannot mutate between pleadings. (4) Section 23(2)(b) of the Legal Practitioners Act does not itself create an offence but merely empowers the Council, Tribunal or court to consider whether acts not specified in s 23(1) or by-laws constitute misconduct. (5) Failure to comply with these procedural requirements renders a referral to the Tribunal premature and the matter must be struck from the roll.

The Tribunal expressed concern and disappointment that it had to restate principles it had established in numerous previous cases regarding the Law Society's duty to comply with the By-Laws and conduct proper investigations. Chatukuta J remarked: 'It is therefore unfortunate that the Tribunal must yet again restate that the applicant must comply with the By Laws. It is unacceptable that the applicant should find itself in such a position.' The Tribunal also made observations on the importance of proper investigations in disciplinary matters, importing principles from employment/labor law as articulated in Botswana cases (Gabathuse v Quarries of Botswana, Phirinyane v Spie Batignollas, and Makaya v Payless Supermarket). The Tribunal quoted extensively from these cases to emphasize that conducting investigations 'requires that the applicant do more than just receive a complaint and then seek a comment from the respondent. It requires probing and follow ups on the allegations.' The Tribunal observed that proper preliminary investigations reduce the risk of spurious charges and allow for objective assessment before embarking on disciplinary processes.

This case is significant in reinforcing the strict procedural requirements that the Law Society of Zimbabwe must follow in disciplinary proceedings against legal practitioners. It emphasizes that as the regulator of the legal profession, the Law Society must comply with the same standards of law it expects practitioners to follow. The case establishes important principles regarding: (1) the need for Council to genuinely deliberate on DEC recommendations rather than merely adopting them wholesale; (2) the duty to conduct thorough investigations, particularly obtaining court records when complaints center on court proceedings; and (3) the requirement for charges to be clear, specific and certain. The Tribunal's reference to its previous decisions in Law Society v Mwonzora, Law Society v Hamunakwadi, Law Society v Chinyama, and Law Society v Bopoto demonstrates a consistent jurisprudential line requiring proper procedure before disciplinary tribunals. The case also imports principles from employment law regarding the need for fair investigations before disciplinary action.