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Erica Fungai Ndewere v The President of the Republic of Zimbabwe N.O. and 5 Others
HH 528-21HH 528-212021
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### Preamble 1 HH 528-21 HC 3673/21 --------- ERICA FUNGAI NDEWERE versus THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE N.O and SIMBI VEKE MUBAKO and CHARLES WARARA and YVONNE MASVORA and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS HIGH COURT OF ZIMBABWE KWENDA J HARARE, 9, 13, 15, 22 July and 24 September 2021 Urgent Chamber Application-costs B Mtetwa for the applicant M Chimombe, for the 1st respondent M Sinyoro, for the 2nd, 3rd & 4th respondents ABC Chinake, for the 5th respondent No appearance for the 6th respondent KWENDA J: The applicant was a judge of the High Court until the 17 June 2021 when she was removed from office by the 1st respondent in terms of s 187(7) as read with s 187(8) of the Constitution of Zimbabwe Amendment (No 20) Act 2013 [ hereinafter the Constitution]. The respondents in this matter are the President of the Republic of Zimbabwe cited in his official capacity (1st respondent); Simbi Veke Mubako [Chairperson of the Tribunal which enquired into the question of applicant’s removal] (2nd respondent); Charles Warara [member of the Tribunal] (3rd respondent); Yvonne Masvora [member of Tribunal] (4th respondent); Judicial Service Commission (5th respondent) and Minister of Justice, Legal and Parliamentary Affairs (6th respondent). The applicant’s removal from office was a culmination of a constitutional process which was set in motion by 5th respondent in or around October 2020 when, acting in terms of s 187(3) of the Constitution, it advised the 1st respondent that the question of removing the applicant from office ought to be investigated. The 1st respondent appointed a three-member Tribunal to enquire into the issue. At the end of the enquiry, the Tribunal found the applicant guilty of gross misconduct and recommended that she be removed from office whereupon the 1st respondent removed the applicant from office and immediately notified the Chief Justice of Zimbabwe. The applicant was aggrieved by her removal from office which she described in her application as a dismissal whereupon she filed this chamber application for a mandamus in the following terms: - “IT IS ORDERED THAT: - The respondents provide the Applicant with the decision dismissing her as a Judge and the full reasons thereof within 24 hours of the service of this order on them. The respondents, jointly and severally, the one paying the other to be absolved, pay the Applicant’s costs on a legal practitioner client scale.” A mandamus is a mandatory interdict. See Nkomo v Minister of Local Government, Rural & Urban Development and others CCZ 9/2016. It is normally issued against a State functionary to compel him or her to fulfil an obligation by taking prescribed steps within a specified time. Sometimes it is issued as a structural order which requires the respondent to report back to court for an assessment of due compliance, with the possibility of further orders to ensure compliance. See Cilliers, Loots & Nel’s Herbstein and Van Winsen - The Civil Practice of the High Courts of South Africa 5 ed, Vol 2 at p 1481. See also Fose v Minister of Safety and Security 1997(3) SA 786 (CC). A party seeking a mandamus must prove the common law requirements of a final interdict which are: - A clear right An injury actually committed or reasonably apprehended; and The absence of a similar protection by any other remedy See Nkomo v Minister of Local Government, Rural & Urban Development and others, supra. The application was opposed in writing by all the respondents, except the 2nd respondent who was not available to file opposing papers. I decided to proceed without him because all parties agreed that the basis for urgency had been established. The 2nd respondent was just a member of a Tribunal which was already well represented by the 3rd and 4th respondents. In addition to that he was legally represented. In an urgent chamber application counsel can make submissions on behalf of client from the bar with leave of the court. The dispute on the merits was resolved without order of court after six days of protracted argument. The resolution came about as a result of the following developments. The applicant withdrew her application against 5th and 6th respondents at the third sitting whereupon the legal practitioners acting for those respondents were excused. Subsequent to that, the applicant abandoned her application against the 2nd, 3rd and 4th respondents and their legal practitioner was also excused at the applicant’s instance. During further deliberations the applicant’s counsel submitted that it was not yet the applicant’s case that the 1st respondent did anything wrong when he removed her from office on the recommendation of the Tribunal. All she wanted was to be able to peruse the detailed report from which the executive summary had been extracted so that she could consider the options available to her. The matter was therefore settled on the 22nd July 2021 when the applicant received the detailed report from 1st applicant’s counsel out of court. I expected the resolution of the dispute out of court to bring relief to all concerned after heated deliberations and lobbying in chambers. That, however, was not to be because the applicant persisted with the application for a mandamus and costs on a punitive scale as originally prayed for. I declined to grant the order because there was no outstanding dispute which needed to be resolved by order of court. Further, at this stage, only the applicant, applicant’s counsel and 1st respondent’s counsel remained since the other parties had been excused by consent. In the deliberations which ensued applicant’s counsel accepted that a court order on the merits was no longer necessary but she immediately moved for costs against all the respondents on a punitive scale in terms of the draft order aforestated. She persisted with the prayer against all the respondents. Her prayer in her heads of argument reflect the prayer for costs on the punitive scale. She grounded the prayer on the submission that she had succeeded in this matter and costs should follow that result. She further argued that the respondents had played hide and seek with her and that this caused her to institute litigation which otherwise would have been unnecessary. She moved me to exercise my discretion in her favour and award her costs against the respondents as claimed in the application. She submitted that she had been put out of pocket by the respondents’ intransigence. The prayer for costs against the 2nd to 6th respondents is clearly not only inappropriate but incompetent. Those respondents were no longer before me. I did not, indeed, could not hear them on the issue of costs. This state of affairs was occasioned by the applicant herself. The audi alteram partem rule enjoins a court to hear the other side before rendering a decision. Resultantly I could not order costs, worse still, on a punitive scale when it was no longer possible for the particular respondents to address me on that issue. The applicant’s prayer for costs against the 2nd to 6th respondents must fail on that basis. This application was not carefully thought out. In an application for a mandamus the applicant must identify with precision the specific administrative authority which or who has failed or neglected in fulfil an obligation. It is absurd that five persons who function separately and independent of each other can be entrusted with the responsibility to carry out the same administrative action. The remedies in the Administrative Justice Act can only be effective if the administrative action concerned is attributable to an identifiable administrative authority with precision. The respondents are independent of each other. Their constitutional obligations and competences are separate, distinct and cannot be conflated. Accordingly, it is not possible to attribute the removal of the applicant from office to all of them at the same time. At the first sitting I asked the parties to prepare to address me on the legal framework under which the application had been made and the legal framework governing the reliefs sought with respect to each of the respondents. Put differently, whether the applicant had a cause of action against the 5th and 6th respondents under any statute or at common law. During argument it became clear that the applicant had no cause of action against the 2nd to 6th respondents whereupon she formally withdrew her application against the 5th and 6th respondents and expressly abandoned the application against 2nd to 4th respondents. Since the matter had been argued she needed leave of the court to do so which I granted with the consent of the respondents. In addition, the rules of this court required her to tender costs but the respondents forgivingly waived their entitlement to costs despite the fact that the applicant only relented after three days of tenacious argument. At the behest of the applicant the legal practitioners representing 2nd to 6th respondents were excused and the matter proceeded with 1st respondent only. In these circumstances, it to me that it was an abuse of the benevolence shown by the 2nd to 6th respondents for the applicant to turn around and seek costs in their absence. Having disposed of the application for costs against the 2nd to 6th respondents above I will now focus on the application for costs against the 1st respondent. Although I was, ultimately, not called upon to determine this application on the merits I am enjoined to advert to the merits of the matter because the applicant has persisted with her application for costs on the grounds that in reality she was the successful party and the 1st respondent relented when he realised that he was cornered, the evidence was weighted against him and judgment against him was inevitable. In the absence of such persistence, I would have disposed of the issue of costs by a pronouncement that there is no order as to costs. The applicant has based her prayer for costs on the ground that the applicant succeeded on the merits. I would therefore be committing an irregularity if I do not address the very issue on which the applicant has based her application for costs, more so, on a punitive scale. The 1st respondent opposed the application for costs on the grounds that the litigation embarked upon by the applicant was pointless and long-drawn-out because the applicant had been unnecessarily argumentative. Her draft order was inelegantly crafted and she had to abandon it. The broad principles which emerge from the discussion of costs by Cilliers, Loots & Nel in Herbstein and Van Winsen The Civil Practice of the High Courts of South Africa 5th Ed, Vol 2 at pages 956 to 976 are as follows:- The purpose of award of costs to a successful applicant is to indemnify him or her for the expense to which he has been put through having been unjustly compelled to initiate litigation. An applicant can only be granted costs on the legal practitioner and client scale as opposed to the party and party scale in exceptional circumstances where the conduct of the respondent justifies such punitive costs. The award of costs is a matter wholly within the discretion of the judge or court after taking into consideration the circumstances of the case and carefully weighing the various issues in the case, the conduct of the parties and any other circumstance which may have a bearing on the question of costs. Costs normally follow the outcome but that is subject to the discretion of the court but Costs may be awarded in uncompleted proceedings at the discretion of the court. A successful applicant may be denied an award of costs. Where proceedings are settled disposing of the merits it is very difficult for the court or judge to make an award of costs. Indeed, an award of costs is usually tied to the decision on the merits. The applicant’s counsel argued that the applicant was entitled to costs because the respondents had played hide and seek with her only to throw in the towel after unnecessarily putting her out of pocket. She therefore succeeded because she got all the documents she required only because she had taken the dispute to court and the respondents found themselves cornered. I must therefore determine whether it is correct that the applicant succeeded in obtaining the relief of a mandamus or on any issue. In so doing I will take into account the issue that arose at the hearing, how the hearing unfolded, how the issues were resolved and finally how the dispute on the merits became extinguished. As stated in the introduction, the dismissal of the applicant from the office of Judge of the High Court was a culmination of a constitutional process which commenced when in or around October 2020, the 5th respondent advised the 1st respondent that on the facts before it, the question of the removal of the applicant from office ought to be investigated. (See s 187(3) of the Constitution. Pursuant to the referral the 1st respondent appointed a tribunal which enquired into the issue as he was enjoined to do in terms of s 187(2) as read with s187(3) of the Constitution I quote the provisions below: - “(2) If the President considers that the question of removing the Chief Justice from office ought to be investigated, the President must appoint a tribunal to inquire into the matter. (3) If the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to inquire into the matter.” The 2nd, 3rd and 4th respondents were the three members of the Tribunal constituted in terms of s 187(4) of the Constitution. The Tribunal reported on its findings and recommendations to the 1st respondent on the 17th June 2021 thereby fulfilling a constitutional mandate set out in s 187(7) of the Constitution which I reproduce hereunder: - “(7) A tribunal appointed under subsection (2) or (3) must inquire into the question of removing the judge concerned from office and, having done so, must report its findings to the President and recommend whether or not the judge should be removed from office.” The tribunal recommended as follows: - “However, delaying in providing reasons in written format for Supreme Court purposes does not constitute incompetence. She gave the correct reasons for denying bail pending appeal. We found Justice Ndewere not guilty of gross incompetence in this case” “On the two remaining allegations, repeatedly failing to deliver justice timeously and ordering the fictitious and erroneous review minute- the Tribunal found her guilty of gross incompetence. On these two we found no extenuating circumstances. Wherefore, the tribunal recommends to His Excellency the President that the Honourable Justice Ndewere be removed from office of Judge on the ground of having committed the above stated acts of gross incompetence.” Upon receipt of the recommendation by the Tribunal the 1st respondent immediately removed the applicant from office without further ado as set out in s 187(8) of the Constitution which I quote below: - “(8) The President must act in accordance with the tribunal’s recommendation in terms of subsection (7).” The 1st respondent immediately notified the Chief Justice of Zimbabwe of the applicant’s removal from office in a minute worded as follows: - “The tribunal which was set up in terms of section 187(2) of the Constitution to enquire into the question of removal from office of Justice Erica Ndewere completed its work on 17 June 2021. The Tribunal recommended that Justice Erica Ndewere be removed from Office for gross incompetence. Accordingly, His Excellency the President, acting in terms of section 187(7) and (8) has removed Justice Erica Ndewere from Office with immediate effect” The minute by the 1st respondent was served on the applicant by the Judge President after the applicant had thwarted earlier attempts by the 5th respondent to serve same upon her. She felt that the service was a nullity which is the reason why she filed this chamber application for a mandamus compelling the respondents to provide her with the decision and the reasons thereof which she already had and submitted as part of the documents in support of her application. I became seized with this application on the 7th July 2021. The grounds of the application appear on the face of the chamber application. These are they: - “the second to fourth respondents made certain recommendations to the First Respondent for the dismissal from office of the Applicant. In breach of provisions of section 68 of the Constitution, the Respondents have failed, despite demand, to promptly provide the Applicant with the decision and the reasons thereof. The Applicant is entitled to have the decision reviewed or appealed against and she requires the decision and the reasons thereof to exercise her rights. Reviews and appeals are both time bound and a failure to immediately access the decision will affect the Applicant’s rights to challenge the decision within the period allowed for appeals and reviews. The Applicant could not have brought the application as she could not have anticipated that the Respondents would not give her the decision and the reasons thereof, even after making many requests for it. The Applicant has no other adequate remedy to access the decision and reasons, thereof given the Respondents’ failure to respond to her requests.” The application is based on the following additional averments in her founding affidavit: - “9. This is an urgent chamber application for an order compelling the Respondents to provide me with a copy of a determination made by the tribunal made up of 2nd to the 4th Respondents which I first learnt about on social media on the 17th June, 2021 and which to date, and despite demand has not been provided to me. 11. At around 16:00hrs on the 18th June 2021, a Deputy High Court Registrar, Mr MATEMADOMBO, attended at my residence un announced purportedly to retrieve court records and to deliver a letter from the Office of the President and Cabinet dispatched through 5th respondent’s Secretary. As the visit was unannounced, and in any event bypassed my legal practitioners whom I have authorised to receive all correspondence pertaining to issues to do with the Tribunal, the letter could not be delivered as I was not at home at the relevant time. I telephonically advised the Registrar to defer his mission to Monday when I would be available. 12. Following this intrusion, I subsequently arranged for a formal handover /takeover of files with the Acting Judge President, which formal handover took place on the 21st June 2021. I confirm being served with the Chief Secretary’s letter on that date and I attach as annexures……Mr Chikwana’s covering letter and the Chief Secretary’s letter.” 14. In terms of the Judicial Services Act, [Chapter 10:28], I am entitled to appeal any decision with which I am aggrieved and can only do this if am aware of the reasons why such decision was arrived at. 15. In addition in terms of the Administrative Justice Act as read with section 68 of the Constitution of Zimbabwe, I am entitled to be given promptly and in writing the reasons why the Tribunal came to the conclusion that it did.” On the 9th July 2021 I directed the parties to prepare to address me on the following issues, among others: - Whether this court had jurisdiction to issue the requested mandamus against the 1st respondent. The legal framework under which the application had been made and the legal framework governing the reliefs sought against each of the respondents. I postponed the matter to the 15th July 2021 for argument. Meanwhile, before the 15th July 2021, the 1st respondent served the applicant with an executive summary which comprises of a summary of the appointment of the Tribunal, its terms of reference, a summary of its factual findings and brief reasons thereof, its findings on the allegations of gross incompetence levelled against the applicant and recommendation to the 1st respondent. Against that background, the 1st respondent opposed the application on the grounds that he had removed the applicant from office solely on the recommendation contained in the executive summary, that he had communicated the removal of the applicant from office through the Chief Justice and that manner of communication was permissible and appropriate since there is no statutory impetrative to communicate directly with the applicant. The 2nd to 4th respondent opposed the application based on oral submissions and a written notice of opposition on the grounds that the Tribunal became functus officio when it concluded the proceedings and handed over its report to the 1st respondent. Thereafter the 2nd, 3rd and 4th respondents had no further business to do concerning the subsequent secretarial processes and service of its report on interested parties. The 2nd, 3rd and 4th respondents had not made a determination but had made a recommendation to the 1st respondent based on the factual findings that they, as the Tribunal had made. With respect to the mandamus provided for in terms of s 6 of the Administrative Justice Act to supply the decision and reasons, the 2nd, 3rd and 4th respondents submitted that this Court was precluded from making such an order against the 1st respondent because the mandatory provisions of the Administrative Justice Act do not apply to an exercise or performance of the executive powers or functions of the 1st respondent. This Court or a judge of this court was precluded from issuing a mandamus against the 1st respondent by the application of s11 of the Act. The 5th respondent opposed the application on the grounds that it simply discharged a constitutional duty and obligation that it was required to fulfil on the facts of the matter when it lawfully gave effect to s 187(3) of the Constitution by referring the question of the applicant’s removal from office to the 1st respondent. Thereafter it had no further legal role to play. It has no constitutional authority to render the decision removing the applicant from office and cannot possibly comply with an order to produce that decision and reasons therefor. It simply communicated the outcome of the constitutional process which removed the applicant from office under cover of letter dated 29th July 2021. The 6th respondent did not file any papers. Actually no specific allegation is made against him in the grounds of the application and founding affidavit. The applicant was however steadfast that she had correctly joined the 5th and 6th respondents in this matter. She maintained her position that a judge of this court had jurisdiction to grant a mandamus against all the respondents in terms of s 68 of the Constitution as read with provisions of the Administrative Justice Act. To that end the applicant filed answering affidavits to the various notices of opposition. She also filed heads of argument and supplementary heads of argument. She persisted with the argument that the communication of the outcome of the constitutional process put in place to enquire into the question of her removal from office through the Chief Justice was unofficial and therefore a nullity. The minute should have been copied to her. There was therefore need for this court to order the 1st respondent to deliver the outcome to her personally. I find this argument irreconcilable with the applicant’s earlier assertion that the 5th respondent erred when it attempted to effect personal service on her and that the notice should have been served on her lawyers. The applicant appeared to have overlooked the doctrine of separation of powers. The 1st respondent does not direct correspondence to individual judicial officers at all levels. In arguing this matter, applicant’s counsel threw in every conceivable argument. She argued that this court had the inherent power to issue an interdict (which is the common law), she placed reliance on the Administrative Justice Act and also argued that she was enforcing the right to administrative justice enshrined in s 68 of the constitution, perhaps, as contemplated in s 85 of the constitution. Such an omnibus approach which combines a constitutional application and other application for remedies available at common law was as disapproved by the Supreme Court in CABS v Penelope Douglas Stone & Ors SC 15/21. This court can issue a mandamus in terms of either the common law or statute. I have already discussed the common law requirements of a mandatory interdict. I need not revert to that because the applicant did not base her application on the common law. She did not make any specific reference to the common law interdict and how the circumstances of her case met the requirements. She premised her application on s 68 of the Constitution as read with the Administrative Justice Act. I do not think that there was need for the applicant to read the Constitution together with inferior legislation because s 68 was operationalised by the Administrative Justice Act. It is, in the circumstances. I take this view on the reading of s 68(3) of the constitution. Section 68((1), (2) and (3) of the constitution reads as follows: - “68 Right to administrative justice (1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. (2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct. (3) An Act of Parliament must give effect to these rights, and must— (a) provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal; (b) impose a duty on the State to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration.” (The underlining is mine) The jurisdiction of this Court to issue a mandamus in terms of statute is provided for in s 6 of the Administrative Justice Act quoted below: - “6 Application for and issue of order to supply reasons (1) Subject to this Act and any other enactment, any person— (a) whose rights, interests or legitimate expectations are materially and adversely affected by any administrative action; or (b) who is entitled to apply for relief in terms of section four; and who is aggrieved by the failure of an administrative authority to supply written reasons for the action concerned within— (i) the period specified in the relevant enactment; or (ii) in the absence of any such specified period, a reasonable period after a request for such reasons has been made; may apply to the High Court for an order compelling the administrative authority to supply reasons. (2) Upon an application being made to it in terms of subsection (1) the High Court may, if it is satisfied that there has been a failure by the administrative authority concerned to supply any or adequate reasons for an administrative action, issue an order directing the administrative authority to supply written reasons to the applicant within such period as may be specified by the High Court.” However, the court’s jurisdiction is ousted with respect to the exercise of an executive function. See s 11 (1) of the Act: - “11 Application of Act to certain administrative authorities or actions limited or excluded (1) The following provisions (a) paragraph (c) of subsection (1) of section three; and (b) subsection (2) of section three; and (c) section six; shall not apply to any of the administrative actions specified in Part I of the Schedule.”. The relevant part of the schedule reads as follows: - “SCHEDULE (Section 11 (1), (2) and (6)) ADMINISTRATIVE ACTIONS IN RESPECT OFWHICH APPLICATION OF SECTIONS 3(1) (C), 3(2) AND 6 EXCLUDED OR QUALIFIED PART I ACTIONS TOWHICH SECTIONS 3(1) (C), 3(2) AND 6 DO NOT APPLY 1. Any exercise or performance of the executive powers or functions of the President or Cabinet. 2. Decisions to institute or continue or discontinue criminal proceedings and prosecutions. 3. Decisions relating to the appointment of judicial officers.” In terms of s 88(2) of the Constitution the executive authority of Zimbabwe vests in the President who exercises it, subject to the Constitution. In terms of s110(1) the executive functions of President are those powers conferred by this Constitution and by any Act of Parliament or other law, including those necessary to exercise the functions of Head of State. As stated above the purpose of a mandamus is to compel the fulfilment of an obligation. Since the Administrative Justice Act is expressly excluded as a legal basis for a relief against the 1st respondent I will now discuss the dimension that the matter before me is a constitutional application to enforce the right to administrative justice seeking a mandamus as the remedy to compel the 1st respondent to fulfil his constitutional obligation. Clearly this chamber application does not comply with the procedural requirements set out in s 85 of the constitution. In addition, I expressed serious doubts that this court would have jurisdiction to issue the mandamus compelling the 1st respondent to fulfil a constitutional obligation. I have no doubt that this matter was concerned with fulfilment of obligations. Actually that is the purpose of a mandamus. The constitutional provisions set out in s 187 which may result in the removal of a judge from office create obligations for the 1st respondent. The word ‘shall’ appears in sections 187(2), 187(3) and s 187(8) of the Constitution. Section 167 (2) (d) of the constitution is however unambiguous that only the Constitutional Court may determine whether the President has failed to fulfil a constitutional obligation. According to the case of Chirambwe v The President of Zimbabwe and Ors CCZ4/21 the principle underlying the exclusive jurisdiction of the Constitutional Court is that disputes about important questions that relate to the sensitive areas of separation of powers must be decided by the Constitutional Court. In my view the matter brought before me falls squarely within the sensitive area of separation of powers because it required me to decide a crucial political question which intrudes into the exercise of an executive function. The Chirambwe case, supra, cautions of the need to maintain comity among the arms of the State. In conclusion I find that the application for a mandamus was not necessary because the applicant had already been served with the notice of her removal from office at the time that she launched her application. She ought not to have invoked the provisions of the Administrative Justice Act. The claim for costs against the 1st respondent was therefore not justified. She unreasonably clung to the joinder of the 1st to 4th respondents thereby causing all concerned to incur unnecessary costs. I do not accept the argument that the applicant succeeded on any issue before me. The prayer for costs necessitated that I scheme through the merits to demonstrate that the applicant did not succeed on any of the issues that arose at the hearing. She could not, indeed, did not pursue the mandamus based on common law because she had not specifically pleaded it. She abandoned the mandamus under the Administrative Justice Act which is the reason why she abandoned her claim against all the respondents except the 1st respondent. With respect to the 1st respondent she abandoned the mandamus as a constitutional remedy when she conceded that she was no longer impugning the 1st respondent’s conduct in removing her from office. After the concessions she was left with no claim against any among the respondents. That way the dispute on the merits was disposed of. In addition, the application was convoluted because it adopted the omnibus approach which has already been disapproved by the Supreme Court. The inescapable conclusion is that the prayer for costs lacks merit. DISPOSITION In the circumstances I order as follows: There shall be no order as to costs. Mtetwa and Nyambirai, applicant’s legal practitioners The Attorney General’s Office, Civil Division, 1st respondent’s legal practitioners Messrs Sinyoro and Partners, 2nd to 4th respondents’ legal practitioners Kantor and Immerman, 5th respondent’s legal practitioners