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Fidelis Munyoro-Chief Court Reporter

Lawyers who provide poor service to their clients risk being punished and forced to reimburse any fees paid, a High Court judge has warned.

The warning by Justice Tawanda Chitapi came after two lawyers, Mr Bothwell Ndlovu and Mr Scot Mamimine, conducted themselves below the expected standards of legal practitioners in a case involving their client Mr Zvikomborero Nyarumwe.

Mr Nyarumwe is suing Mr Solomon Mashamba, Pure Gold Housing Trust, City of Harare and the Sheriff of Zimbabwe to nullify an eviction order granted to Mr Mashamba to evict him from 232 Eastview, Harare. 

Ms Hezel Sibanda, who acted for Mr Mashamba, asked the court for wasted costs debonis propriis (a Latin term meaning out of their own pocket), against Mr Nyarumwe’s lawyers, citing dishonesty and unreasonable conduct by his legal counsel in the case.

This was after Mr Nyarumwe through his legal counsel withdrew his urgent application in circumstances which irked Mr Mashamba to the point that his lawyers sought the applicant’s lawyers to pay wasted costs out of their own pocket.

A lawyer who is incompetent does the client a disservice, brings discredit to the profession and may bring the administration of justice into disrepute. In addition to damaging the lawyer’s own reputation and practice, incompetence may also injure the lawyer’s partners and associates.

 In this case, Justice Chitapi criticised Mr Ndlovu and his junior assistant Mr Mamimine for behaving unprofessionally in providing specialist legal service to their client.

 He said there would be no justification to saddle the innocent litigant with payment of costs where the legal practitioner had virtually done no helpful work for which payment was due.

In addition, the judge said where the work done is as good as nothing done, because the court finds that it is of no value to the determination of the dispute, then the litigant whose lawyer has been found to have been grossly negligent in the work done should in addition to being ordered to pay costs debonis propriis, be further ordered not to recover fees for the work done.

“The legal practitioner’s efforts result in nothing of value being realised,” said Justice Chitapi.

 “A client should not pay for nothing. An order of costs debonis propriis, therefore, also protects society from being fleeced by the legal practitioners who fail to display reasonable skill in discharge of the mandate for which they will have been engaged. No one should be made to pay for no value received.” 

The paper trail of the case showed that Mr Nyarumwe through his legal practitioner had acted in bad faith by filing and withdrawing applications meant to achieve nothing save to frustrate Mr Mashamba from enforcing the judgment granted against Mr Nyarumwe.

 This irked Mr Mashamba’s lawyer who argued that the conduct of Mr Nyarumwe’s lawyer’s showed negligence, impropriety and dishonesty. The application was set down for hearing on October 5, 2020.

 Mr Nyarumwe’s lawyers then filed a notice of withdrawal with a tender of costs on that date.

 However, the lawyer did not come for hearing. Mr Mashamba’s lawyer did not accept the withdrawal at the eleventh hour and moved the court to hear the matter, citing Mr Nyarumwe’s lawyer’s previous conduct.

The judge then summoned Mr Ndlovu to explain himself on the matter and in particular Ms Sibanda’s request for him to pay the costs out of his pocket on the legal practitioner and client scale. 

 When asked to make his submissions, Mr Ndlovu stuck to his heads of argument and this appeared to Justice Chitapi that he did not appreciate the enormity and seriousness of what was alleged against him.

 This prompted the judge to direct both parties’ lawyers to produce and file the detailed paper trail on the matter. Ms Sibanda filed a detailed thick document setting out the paper trail in the case while Mr Ndlovu’s filed an affidavit deposed to by Mr Mamimine.

 It became clear to Justice Chitapi that Mr Mamimine was negligent and did not show care for the proper discharge of his mandate as a legal practitioner when he allegedly filed his application without checking the status of the matter and relating the application to the facts of the case.

In considering whether to order Mr Mamimine to pay cost of suit out of his own pocket, Justice Chitapi found Mr Ndlovu, the real culprit as the senior lawyer.

 He failed to competently handle the case from the time that his law firm assumed agency with him personally dealing with the matter. Mr Mimimine was a victim of circumstances and Mr Ndlovu should shoulder the blame.

 In the end Justice Chitapi refrained from striking fear into legal practitioners to fear that they may be penalised with cost debonis propriis if the court is not in favour of how they will have presented the cases for their clients. But only this time, he said.