Mutanga (Nee Ganye) v Mutanga (XREF 2690 of 2002) [2004] ZWBHC 67 (26 May 2004)

Judgment No. HB 67/2004 Case No. HC 360/04 X-Ref: 2690/02 SENZENI MUTANGA (NEE GANYE) Versus AARON MUTANGA IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 27 MAY 2004 G Nyathi for applicant T Hara for respondent Judgment CHEDA J: Applicant filed an application against respondent seeking the following interim relief: “Interim Relief Granted That pending the confirmation or discharge of this provisional order, the applicant is granted the following relief: 1. 2. 3. 4. That the respondent be and is hereby interdicted or prohibited from ejecting or attempting to procure applicant’s removal from stand No. 14774, Selbourne Park, Bulawayo or in any other manner interfering or attempting to interfere with her use and occupation of the said house without a court order. The respondent be and is hereby prohibited from either assaulting, intimidating, verbally abusing or threatening the applicant in any manner. In the event that respondent violets any of the provisions of paragraph (I) and (ii), then he be committed to prison for contempt of court for a period of 30 days. That applicant be and is hereby granted custody of the four minor children of the parties, namely (a) (b) (c) (d) Kudzai Mutanga – male – born on 24 January 1991 Rumbidzai Mutanga – female – born on 7 May 1993 Esther Mutanga – female – born on 27 March 1997 Tanaka Mutanga – male – born on 16 December 2000” HB 67/04 The facts of this matter which are largely common cause are that the parties were married to each other on 20 January 1995 and the said marriage was dissolved on 12 December 2002 when the parties signed a consent paper regulating their affairs after the dissolution of their marriage. It is noteworthy that respondent who was the plaintiff in the divorce matter stated in his declaration that there was no matrimonial property for distribution upon divorce. It is also noteworthy that applicant who was then defendant in the said action signed the consent paper awarding respondent custody of the minor children. At the hearing Mr Nyathi for applicant raised an issue which touches on the possible unethical conduct of Mr Hara who is respondent’s legal practitioner. It is alleged that Mr Hara, initially took instructions from applicant and thereafter abandoned her and took instruction from respondent instead. This allegation was uncontroverted by either Mr Hara or respondent. It is a fact that respondent through his legal practitioner deliberately misled the court into believing that there was no matrimonial property, yet, in fact and in truth there was. This in my view must have been known to his legal practitioner when he drafted both the summons and consent paper because Mr Hara is a legal practitioner of considerable experience such that the non-mention of matrimonial property in a marriage of that period would have triggered him to query that aspect. The whole scheme was obviously designed to dupe applicant. Applicant stated in her affidavit that she did not query the exclusion of the distribution of property as she was made to believe that the issue would be dealt with separately. HB 67/04 Applicant is now challenging both the custody and distribution of property. She proposes that she be awarded 45% share of the net proceeds of the matrimonial home while respondents insists that she be awarded 15% instead. As a way of resolving this matter I ordered that a round table conference be held by the parties but this resulted in an impasse. While the application was for the restriction of respondent’s activities towards applicant as pointed out supra, the issue of the matrimonial property and custody of the minor children took a centre stage. The issue which can be resolved on the papers is for the matrimonial home. Respondent concedes that applicant indeed made contributions towards the purchase and/or upkeep of the matrimonial home, hence his reason for offering her 10% share in the house. That admission in my view is very important as it shows that he acknowledges that she played a role in the matrimonial home and therefore there was absolutely no reason why she should not be awarded a share. The question then is how much share she should get? She is asking for 45%, this in my view is rather on the higher scale bearing in mind that her contribution is minimal. In my view it is only fair and just that she be awarded 35% share in the matrimonial property in view of her contribution in the circumstances. With regards to the custody of the minor children applicant signed a consent paper awarding respondent custody and I granted that order on 12 December 2002. In view of that fact, I can not make a determination on it as this amounts to an attempt to rescind my own judgment. It is therefore entirely up to the applicant to make the relevant application to court for that remedy. The issue of movable property also requires to HB 67/04 be determined together with the issue of custody of the children. Applicant is therefore advised to pursue it separately if she so wishes. This matter would not have reached this stage had Mr Hara handled it in a professional manner. His decision in representing and/or taking instructions from both litigants is to say the least reprehensible. Such conduct should be discouraged and I therefore totally agree with Mr Nyathi that it is not clear what role he played before he jumped over to represent respondent. Most professions in general and legal practitioners in particular walk a tightrope in their daily practices in as far as their ethical conducts in relation to their clients is concerned. As a general rule a legal practitioner is entitled to accept or refuse work where he feels that there will be a conflict of interest. The definition of “conflict of interest” is ably laid down in the Code of Professional Conduct (The Canadian Bar Association) – 25 August 1974 Cap V (Rule) which states: “A conflict of interest is one which would likely to affect adversely the judgment of the lawyer on behalf of or his loyalty to a client or prospective client or which the lawyer might be prompted to prefer to the interest of the client or prospective client.” The conflict usually tends to suppress the knowledge obtained as a result of instructions given by one client which knowledge if withheld from the preferred client will not doubt work to his prejudice or vice versa. A lawyer must therefore at all costs avoid acting against a former client where there is a danger that whether the matter at hand is contentious or not there is always a likelihood or a danger of leaking information obtained in confidence to the prejudice of the former client. E A L Lewis in his book Legal Ethics Juta & Co Ltd 1982 deals with this principle extensively and at pages 291-292 the learned author states- HB 67/04 “The confidence of the client is absolute and must be preserved by his attorney except to the extent that disclosure may be rendered necessary or permissible … This confidence embraces all oral and documentary information respecting the client’s affairs gained in acting for him whether from the client himself or from any other source whatsoever. This preservation of confidence is so important that it becomes a point of the management of the attorney’s practice and ……. To do his best to curb breach of confidence on the part of staff who must in the course of their work inevitably receive confidential information.” I should add, however, that there are exceptions to this general rule being that an attorney is obliged to disclose confidential information upon request by an executor or administrator of his deceased’s estate, curator or trustee provided that such information is essential in the proper administration of justice and nothing else. Such information, it should be noted, is received by them as successors to the client in the furtherance of his interests. The question of conflict of interest will therefore be non-existent. I therefore find that Mr Hara should not have acted for respondent at the expense of applicant from whom he had initially obtained instructions. In as much as a legal practitioner is trained to be impartial, it is difficult to envisage a situation where he would overcome the temptation of not using his prior knowledge of the circumstances of his former client’s affairs to advantage his present client. It is a question of justice not only being done but being seen to be done. Mr Nyathi when addressing the issue of costs raised the issue of possible misconduct on the part of Mr Hara. This was quite proper, for it is this type of conduct, which attracts punitive costs on the part of the legal practitioner. However, in the exercise of my discretion I have decided against visiting him with such costs, but, should warn legal practitioners that such conduct in future will not receive any HB 67/04 sympathy from these courts. Respondent’s behaviour has been that of dishonesty and deceit not only to applicant but to the court as well. Had he made a full disclosure of his intentions at the filing of the divorce proceedings, this matter would have probably been resolved without wasting time and putting respondent in an unnecessary expense in exposing respondent’s conduct. Respondent obtained a court order through fraudulent means. Such behaviour, in my view, can suitably be punished by awarding costs on the superior scale against respondent. It would be improper for applicant to be financially prejudiced as a result of respondent’s wrongful and unlawful conduct. In conclusion the following order is made:– 1. The immovable property (matrimonial house) being stand number 14774 Selbourne Park, Bulawayo be and is hereby to be valued by a respectable valuer and the costs of such value be shared in terms of shares in paragraph 2 an 3 below. 2. 3. 4. Applicant be and is hereby awarded 35%share in the matrimonial house. Respondent be and is awarded 65% share of the matrimonial house. Applicant to be paid her 35% share within 3 months of the valuation failing which the matrimonial house is to be sold to best advantage. 5. That respondent be and is hereby prohibited from assaulting, intimidating, verbally abusing or threatening the applicant in any manner. 6. In the event that respondent violates any of the provisions of paragraph 5 he be committed to prison for contempt of court for a period of 30 days. 7. That respondent bears the costs of these proceedings on an attorney and client scale. Messrs Sibusiso Ndlovu applicant’s legal practitioners Moyo-Hara & Partners respondent’s legal practitioners