Division of legal profession long overdue

Daniel Nemukuyu Senior Court Reporter
“The Constitutional Court is the highest court of the land and we cannot continue getting such shoddy jobs from legal practitioners.

“Hopefully the message will reach out to other lawyers that they should take the courts seriously.

“Is it not taking the court for granted? When you cite a minister for his official deed, you have to cite him in his official capacity. Citing a minister in his personal capacity for something he did in the course of his official duty is so elementary and even a first-year law student knows it is legally wrong,” Chief Justice Godfrey Chidyausiku fumed in a case in which a former Chitungwiza councillor Dr Fredrick Mabamba was challenging his expulsion from council.

In another case, Chief Justice Chidyausiku blasted the Attorney-General’s Office for sending inexperienced officers to the Constitutional Court, a decision he said would result in the State losing many cases unnecessarily.

A law officer in the AG’s office Ms Chenai Garisenheta invited the wrath of the nine-member bench when she was struggling to defend the case in which the Minister of Defence was being sued by Captain Albert Mugadza over disciplinary proceedings. Ms Garisenheta incensed the court when she sought to postpone the case citing unpreparedness after Adv Mpofu had finished arguing Capt Mugadza’s case. She gave an excuse that the papers were prepared by the Zimbabwe Defence Forces officers and that she received them late.

But Chief Justice Chidyausiku was quick to dismiss the excuse, urging lawyers from the AG’s Office to come to court well-prepared.

“You were supposed to seek a postponement to put your house in order before the other party argued his case.

“When we sit here as a court we want to deliver justice, to determine who is right. You have to present your case to the best of your ability to assist the court in achieving justice. If you handle the case the way you are handling this one, we will not achieve justice at all,” he said.

The above cited incidents are highlights of several cases where the superior courts express displeasure over the quality of legal representation in the country.

The judiciary boss, who sits in the highest court in Zimbabwe, was forced into stirring debate on whether the legal profession should remain fused or we should revert to the traditional system where only seasoned advocates should be allowed to the superior courts.

Following court proceedings throughout the year as a reporter covering the superior courts of the country, the Chief Justice’s utterances cannot be viewed to be off the mark. Without mincing words, professionalism in the legal fraternity has gone to the dogs and the quality of legal representation has become a serious cause for concern. Imagine, a graduate fresh from the University of Zimbabwe, getting straight into the Constitutional Court, appearing before a nine-member bench of seasoned judges?

Honestly, that amounts to mockery of the profession and reducing the honourable highest court to a training ground for cub lawyers. It is also a fraud on the part of the fresh lawyers to rush to represent the unsuspecting clients at such superior courts with poor arguments.

The Constitutional Court, being a serious and a busy court, cannot spare time to take greenhorns through stages, coaching them on ethical and professional issues.

Officially opening the 2016 legal year, the Chief Justice said debate was underway to determine whether the Supreme Court, Constitutional Court, Labour Court and Administrative Court should be a “free for all” or just a preserve of the experienced advocates. The head of the judiciary said practising advocates from various advocates’ chambers in Zimbabwe, have over the years proved to be better prepared and of much assistance to the superior courts.

In the pre-independence era, the profession was divided into advocates and attorneys. Advocates had right of access to the superior courts while attorneys operated from the lower court, which is the magistrate’s courts.

Attorneys are lawyers who do legal work of all kinds and operate from law firms, while advocates are specialist litigators who work on a referral basis. Whenever attorneys feel like approaching superior courts under that system, they instruct advocates. The profession was fused after independence to end discrimination whereby only white advocates would get work from law firms, which were mainly owned by whites, while black lawyers suffered discrimination and loss of business.

Now that discrimination is over, Zimbabwe has enjoyed independence for over three decades, it is now time to insist on high quality legal representation.

There is need for amendment of the Legal Practitioners’ Act to ensure only high quality and experienced lawyers are allowed to the superior courts for expedience and provision justice for all.

There should be a criteria of selecting appropriate lawyers to serve as advocates, which must not also appear to be discriminatory and biased. The ongoing debate has been received with mixed feelings from lawyers. Non-advocates are viewing it as a way of discrimination and denying them their constitutional right to accessing the courts of law. Some feel they will lose their income as they will be barred from the superior courts where there is more legal work and professional activity. But the proposed amendments must take into account all those issues and wide consultations must be made in coming up with reasonable and fair reforms to the profession.

The quality of legal representation complained of, in my opinion, has much to do with the way lawyers are being trained in Zimbabwe.

Lawyers’ qualification in Zimbabwe is just an LLB degree and after that the graduates are free to get into practice without any professional training. They can either choose to be advocates or solicitors, although any lawyer is free to appear before any court of law. Borrowing from the English style, after attaining a law degree, graduates go for professional training.

Solicitors or attorneys attend the College of Law for a post-graduate qualification where they are refined and taught ethics, etiquette, respecting seniors and others before joining the legal profession.

Graduates who wish to be barristers or advocates, attend the school of law where they get professional training as opposed to academic training at undergraduate level. At the school of law, there will be further professional training and an additional year of pupillage before holding themselves out as advocates.

The Law Society of Zimbabwe has of late been inundated with calls and letters of complaint from the public on the conduct of legal practitioners. Several lawyers have been censured while others were de-registered for unprofessional conduct. The majority of the de-registered lawyers are youngsters who fail to control their appetite for cash and resort to stealing trust funds. Some just receive cash from clients but decide not to do the work.

Others, who believe they are too clever, are masquerading as registered lawyers and they can even practise for more than six months without renewing their practising certificates as required by law.

The Legal Practitioners’ Disciplinary Tribunal has been over-utilised to deal with cases of unprofessional conduct by lawyers.

 

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