Trading Inns P/L v Bvopfo & Anor (CIV A 136 of 2014) [2015] ZWHHC 301 (24 March 2015)

1 HH 301-15 CIV ‘A’ 136/14 TRADING INNS P/L (t/a Zimbabwe Photo Marketing) versus EDSON BVOPFO and WINCHESTER MULIZE HIGH COURT OF ZIMBABWE UCHENA & MWAYERA JJ HARARE, 17 & 25 March 2015 Civil Appeal P Jonera, for the appellant B Maruva, for the 1st respondent T Deme, for the 2nd Respondent UCHENA J: The first and second respondents were arraigned before a magistrate sitting at Harare Magistrate’s Court to answer a charge of contravening s 113 (2) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Theft of trust property). The appellant was the complainant. The respondents were convicted and sentenced to: “5 years imprisonment of which 2 years imprisonment is suspended for 3 years on condition the offender does not within that period, commit an offence involving dishonesty and for which upon conviction each is sentenced to imprisonment without the option of a fine. Of the remaining 3 years 30 months is suspended on condition each offender pays US$27, 085-59 to Innscor Distribution through the clerk of Court on or before 30 July 2012. The remaining 6 months imprisonment is suspended on condition each offender performs 210 hours of community service work, Accused 1 at Highlands Police Station, accused 2 at Highlands Police Station---.” It is the order for restitution which gave rise to this appeal. The respondents did not pay restitution as ordered. They in their opposition say they appealed against the conviction and sentence imposed by the trial magistrate. That however has no bearing on this appeal. Irked by the non-payment of restitution the appellant applied to the Magistrate’s court against whose decision this appeal was noted for the registration of the restitution ordered for purposes of enforcement. The Magistrate refused to register the order and dismissed the appellant’s application, because he has no jurisdiction to register restitution in the sum of US$27,085-59 for each respondent. His jurisdiction is limited to amounts of US$10 000-00 HH 301-15 CIV ‘A’ 136/14 and below. If the appellant’s legal practitioner had applied his mind to the correct interpretation of s 372 of the Criminal Procedure and Evidence Act, [Chapter 9:07] the matter should have been allowed to rest. He should thereafter, have established, which court has jurisdiction and applied to that court. The appellant’s legal practitioner did not do what was expected of him. He instead of seeking registration in a Court with the appropriate jurisdiction, appealed to this court against the magistrate’s decision. Mr Maruva for the first respondent submitted that the meaning of s 372 of the Criminal Procedure and Evidence Act is clear. He submitted that registration depends on the civil jurisdiction of the registering court. He submitted that the appellant should have applied to register the order at the nearest High Court registry. The High Court has inherent jurisdiction and can therefore entertain the registration of the restitution orders. Mr Deme for the second respondent agreed with Mr Maruva. They are correct. Section 372 (1) is not difficult to comprehend. It provides as follows; “ (1) No later than thirty days after an award or order is made in terms of this Part by a court, any interested party shall, unless the accused has earlier complied with the award or order, lodge a copy of the award or order with the clerk or registrar of the court that made the award or order or, if that court has no civil jurisdiction, with the clerk of a court within the same province having civil jurisdiction or the nearest High Court registry, as the case may be:” The clear literal meaning of s 372 (1) is that the interested party should not later than thirty days after the award or order, lodge a copy of the award or order with the clerk or registrar of the court that made the award or order. The mentioning of the clerk or registrar of the court which made the award or order simply means both the High court and the Magistrate’s Court can make the award or order during criminal proceedings before them which the High court can always register as it has inherent jurisdiction. It is only in the case of the magistrate’s court which granted the award or order not having civil jurisdiction, when another magistrate’s court within the province, which has jurisdiction can register the order. If both the magistrate’s court which granted the order and other magistrate’s courts within the province do not have jurisdiction then the interested party must register the award or order at the nearest High Court registry. It seems Mr Jonera for the appellant appreciated this but deliberately tried to mislead the court. It is inconceivable that a legal practitioner of Mr Jonera’s experience can be ignorant of the fact that Magistrate’s Courts are creatures of statute whose jurisdiction can only be found in the four corners of the Statute that created them. It is further inconceivable that he does not know what the words “magistrate’s court HH 301-15 CIV ‘A’ 136/14 civil jurisdiction” means. Reference to registration “at the nearest High Court registry” should have alerted any legal practitioner of average competence that the hierarchy of courts in terms of their jurisdiction was an important factor. It could mean nothing else besides that if the award or order is beyond the magistrate court’s civil jurisdiction it should be registered at the nearest High Court registry. A legal practitioner of average competence is expected to know these elementary principles of justice. I do not believe Mr Jonera is guilty of accepting work beyond his professional competence, as the issues involved in this case are such that a recently admitted legal practitioner is expected to understand them. The attempt to mislead became apparent both from the record and his submissions on coasts. In response to Mr Maruva and Mr Deme’s submissions for appellant to be ordered to pay coats on the higher scale, he responded by saying he will not charge his client for his appearance and his law firm will pay the respondents’ costs. This is a strange submission which betrays a guilty feeling by the legal practitioner. It obviously stems from a realisation that the appeal was a result of the legal practitioner not properly advising his client on the law. It is the legal practitioner who should have known where to register the award or order. It is also the legal practitioner who should have appreciated the magistrate’s decision, and advised his client that they should register the award at the nearest High Court registry. In his submissions on appeal he sought to interpret s 372 through the repealed s 372 which preceded it. His reasons for doing so were incoherent. The provisions of s 372 (1) are clear and their meaning can be ascertained from the ordinary grammatical meaning of the words used. The attempt to rely on the repealed section was clearly aimed at confusing the court. It is for that reason, why we should not be persuaded to allow the legal practitioner to avoid costs de bonis propriis by offering not to charge his client and that his law firm will pay the respondents’ costs. It is accepted that a legal practitioner can fail to appreciate the law, and should be allowed to err in genuinely furthering his client’s interests. It is however unethical for a legal practitioner to mislead or attempt to mislead the court. B. D. Crozier in his book “Legal Ethics A Handbook for Zimbabwean Lawyers” at p14, said; “Legal practitioners are officers of the court and as such, have duties towards the courts in which they appear. They are not “mere agents for their clients”, but have duties towards the judiciary to ensure the efficient and fair administration of justice.” According to Rule 6 of the IBA International Code of Ethics: HH 301-15 CIV ‘A’ 136/14 “6. Lawyers shall always maintain due respect towards the court. Lawyers shall without fear defend the interests of their clients and without regard to any unpleasant, consequences to themselves or to any other person. Lawyers shall never knowingly give to the court incorrect information or advice which is to their knowledge contrary to the law” (emphasis added) In this case it is apparent that Mr Jonera knew the correct interpretation of s 372 (1) hence the attempt to embellish it by reference to its predecessor. His offering, not to charge his client for his appearance and for his law firm to pay the respondent’s costs was therefore an attempt to accept a lesser punishment for his un- ethical conduct and abuse of court process than costs de bonis propriis. The effect of Mr Jonera’s offer to pay the respondent’s costs on the high scale through his Law Firm has the same effect with an order of costs de bonis propriis, except that it protects the legal practitioner against the effects of an order of costs de bonis propriis. In the case of Ndlovu v Murandu 1999 (2) 341 at 350 G-H, Sibanda J in ordering costs de bonis propriis against a legal practitioner and barring him from charging his client fees for a portion of the representation said; “It was then the duty of the legal practitioner to advise his client properly as to the legal status of the contract. It was his duty to advise his client that the agreement of sale was perfectly valid and legally binding. Instead, he chose to act as a catalyst in the applicant’s attempt to frustrate and defeat the intention of the parties. He must be made to pay the price for his indiscretion in instituting these proceedings at a time when he was in possession of a letter from a fellow legal practitioner confirming that the money for payment of the balance was available and ready to be paid.” I am satisfied that an order of costs de bonis propriis against Mr Jonera, and a bar against charging the appellant fees for his appearance is called for. I therefore make the following orders; 2 The appellant’s appeal be and is hereby dismissed. The appellant’s legal practitioner Mr Jonera shall pay the respondents’ costs de bonis propriis. The appellant’s legal practitioner Mr Jonera shall not claim fees from his client in respect of this appeal. MWAYERA J agrees……………………. HH 301-15 CIV ‘A’ 136/14 Messers Wintertons, appellant’s legal practitioners Messers Mugwadi & Associates, 1st respondent’s legal practitioners Messers Chibune & Associates, 2nd respondent’s legal practitioners