Yatakala Trading (Private) Limited and Shlomo Yosef Lepar v S.M Mutiro N.O: Regional Magistrate, Bulawayo and The State

The applicants were charged with theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] under CRB 686–7/25. The charge arose from a commercial transaction involving contractual cancellation and refund payments. The applicants contended that the matter was civil in nature and related to contractual obligations and subsequent refund arrangements. Related civil litigation under case number HC1958/2020 had been dismissed. Despite this civil background, the applicants were prosecuted criminally. On appearance for trial, they took exception to the charge on the basis that it failed to disclose an offence known to law. On 28 October 2025, the Regional Magistrate (first respondent) dismissed the exception and ruled that the charge was triable. The applicants then sought review of this ruling. During the review hearing, a preliminary objection arose concerning the legal practitioner representing the second respondent who had deposed to the affidavits filed of record.

• Whether a legal practitioner who deposes to affidavits in contested proceedings can competently assume the role of advocate in the same matter
• Whether the substitution of counsel can cure the defect created when the initial legal practitioner acted both as witness and counsel
• Whether the Regional Magistrate's dismissal of the exception should be reviewed and set aside
• Whether the charge of theft disclosed an offence known to law
• Whether the continuation of criminal proceedings constituted an abuse of process given the prior dismissal of related civil proceedings

1. The ruling of the 1st Respondent delivered on 28 October 2025 in CRB 686–7/25 was reviewed and set aside. 2. The criminal charge preferred under Section 113 of the Criminal Law (Code) was set aside as being incompetent at law. 3. No order as to costs.

A legal practitioner who deposes to affidavits in contested proceedings assumes the position of a witness and cannot simultaneously act as legal counsel in the same matter, as this creates an impermissible conflict of roles. Such conduct renders the proceedings irregular and incurably bad. The subsequent involvement of a different legal practitioner does not cure the defect where the pleadings and heads of argument remain those prepared and filed by the conflicted practitioner. Proceedings cannot be artificially fragmented to permit different aspects to be handled by different practitioners where both are acting on behalf of the same party in one continuous and unified representation. Where heads of argument required to be filed are invalid due to being filed by a person not duly acting as a legal representative, the respondent is barred in terms of Rule 59(22) of the High Court Rules of 2021, and the court may deal with the matter as unopposed.

The court noted that while there may be exceptional circumstances where certain irregularities might be condoned (particularly in urgent matters as referenced in Wendall Robert Parson vs Gillian Therese Jackson HH 792-17), this was not such a case. The applicants had sufficient time to regularize their position and failed to do so. The court also observed that it would not have been improper for the second respondent to seek a postponement in order to regularize representation and ensure compliance with procedural requirements. The court referenced the South African decision in Director of Public Prosecutions KwaZulu-Natal v Mzanywa and Another [2023] ZAKZPHC 108 which expressed similar concerns about prosecutors deposing to affidavits and then arguing matters, noting that this compromises the capacity to give the conduct of the case objective professional attention.

This case is significant in Zimbabwean legal practice for establishing that a legal practitioner who deposes to affidavits in contested proceedings is disqualified from acting as counsel in the same matter due to the conflict of roles between being a witness and an advocate. The case also demonstrates that such a defect cannot be cured by simply substituting counsel while relying on the same tainted pleadings and heads of argument. The judgment reinforces procedural propriety and the principle that improper conduct by legal practitioners can render proceedings irregular and incurably bad. It also illustrates the court's willingness to review criminal proceedings and set aside charges where procedural irregularities undermine the integrity of the process.