Thamary Karimapfumbii v Ali Ebrahim N.O and Others

### Preamble
1
HH 677-18
HC 5446/14
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THAMARY KARIMAPFUMBI

versus

ALI EBRAHIM N.O

and

REGISTRAR OF DEEDS

and

MISHEL NATASHA MUTNURE

and

JANE CHIKORE

and

BORNFACE MUTENURE

and

PETER MUTENURE

and

VALENCIA MADZIWA

and

LLOYD MUTENURE

and

ENOCH MUTENURE

and

NYARAI ANGELA MUSARIRI

and

MASTER OF THE HIGH COURT N.O

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 26 & 28 September 2018 and 17 October 2018

Opposed Matter

Ms C. Damiso, for the applicant

Ms T R Hove, for the 1st respondent

No appearance for other respondents

KWENDA J: At the conclusion of submissions in this application, I immediately pronounced that I was striking this matter off the roll because it was wholly unprocedural. I reserved my ruling on the first respondent’s application for costs de bonis propriis against the law firm representing the applicant, namely C Nhemwa & Associates. I indicated the detailed reasons for striking the matter off the roll would appear in my written judgment.

The applicant approached this Court by way of application on 2 July 2014 for an order rescinding a consent order granted by this case in Case No. HC 3914/02 on 12 April 2005. The applicant who was the plaintiff in Case No 3914/02 had reached settlement with the first respondent resulting in the consent order. As will appear more fully hereunder this application could not properly be made since several similar applications filed by the applicant had been dismissed or withdrawn or struck of the roll.

The first respondent filed opposing papers wherein he applied for costs on a legal practitioner client scale to be borne de bonis propriis by applicant’s lawyers on the grounds that this application was an abuse of process and the law firm, Messrs C Nhemwa & Associates has actively participated in the harassing of the first defendant, his legal practitioners, an innocent lawyer (Mr Chinhema) who previously represented the applicant as well as abusing the court. Further the applicant is resident in the United Kingdom and she had not honoured all previous awards of costs against her. Such orders were not capable of execution against her because of her domicile. Messrs C Nhemwa and Associates knew all that yet they persisted with frivolous applications while the applicant was ensconced beyond the jurisdiction of this court. The first respondent submitted as follows in his heads of argument.

“(i)	A claim against a legal practitioner is never taken lightly, however this is such a case where costs are appropriate.

(ii)	Messrs C Nhemwa & Associates associated itself with an unwarranted attack on the integrity of an Innocent legal practitioner, Mr C Nhemwa, who had earlier represented the applicant.

(iii)	The attack on Mr C Chinhema was not only false and unwarranted but Messrs C Nhemwa had not cited him to defend himself or served the application on him. Accordingly he was unaware of the attack to his name.

(iv)	In the circumstances where Messrs C Nhemwa & Associates impugned the integrity of an officer of the court, there was an obligation to put forward valid and credible evidence to substantiate the allegations. The law firm had failed to do so.

(v)	Messrs C Nhemwa & Associates had made unsubstantiated and spurious allegations against the first respondent’s lawyer Ms Hove of collusion and cohesion which could result in her being deregistered.

(vii)	The application had no merit at all and was mala fide. The law firm C. Nhemwa & Associates associated itself with the mala fides.

(viii)	The matter was res judicata and Messrs C Nhemwa knew that since an earlier similar applications handled by the law firm had been dismissed with costs and the costs had not been paid.

(ix)	On the 3rd March 2017 a similar application under case HC 5446/14 was struck off the roll with costs on a legal practitioner client scale. The costs have not been paid see p 519 of the application.

(x)	In all cases Messrs C Nhemwa and Associates represented the application and therefore had knowledge of all these developments.”

The frustration exhibited by the first respondent and his legal practitioner is understandable. This is a voluminous application which has 525 indexed pages. The court was also infuriated by the level of mediocrity in the presentation of the applicant’s case. As if that was not enough, the applicant’s legal practitioner just absconded the proceedings and only re-emerged in chambers to ask for judgment. Such contempt has no precedent in this court, at least, that I am aware of.

The advocate who appeared on 26 September 2018 on the instructions of applicant’s legal practitioner, Ms C Damiso was monumentally disrespectful and contemptuous of the court. She applied for postponement because she was not prepared. The application was granted and matter postponed to the 28th September 2018 despite stiff opposition by the first respondent. The court considered that since important issues arose particularly that a similar application had been dismissed, allegations of harassment, lack of bona fides, unsubstantiated spurious allegations against a professional colleague and the prayer for cost de bonis propriis raised in the heads of argument, she be awarded time to take instructions. Despite the leniency, Ms C Damiso treated the court with utter disdain, because she did not return to court on the appointed date. Ms C Damiso is a senior advocate and her conduct is difficult to fathom. The honour associated with profession is at risk if such conduct is allowed to persist.

CIRCUMSTANCES OF THE CASE

The applicant is a surviving spouse of one the late Freddie Mutemure who dies in the year 2000.

Upon the administration of the late Freddie Mutemure’s estate under DR No. 1374/2000 the applicant raised an objection to an aspect of the distribution plan prepared by the first respondent who was the executor.

Her objection concerned distribution of a Mount Pleasant house at No. 88 Harare drive which the applicant wholly claimed for herself.

The applicant instituted proceedings under case No HC 3914/02 to enforce her perceived right to inheritance.

She instructed Mr Chinhema to represent her in the matter citing the first respondent and Master of the High Court as respondents.

The first respondent was represented by his current lawyer Mrs RT Hove.

In 2005 the parties reached settlement and this court entered judgment by consent in terms of which the applicant (who was the plaintiff) agreed to be awarded 15% (fifteen percent) of the net value of the estate of her late husband with each party bearing own costs.

The consent order was a culmination of protracted negotiations.

Somehow the applicant changed her mind and began to write strongly worded letters to first respondents’ lawyers complaining about the distribution.

The letters were written after the conclusion of the administration and distribution of the assets of the estate in the year 2007.  Applicant also lambasted Mr Chinhema, her legal practitioner, while disowning the consent order.

First respondents’ lawyer responded in writing pointing out the distribution had been concluded by consent and full participation of the applicant.

In December 2009 Messrs C Nhemwa and Associates took over representation of the applicant.  They had instructions to apply for rescission of the consent order granted in the year 2005.

As at 13 June 2011, one and half years later no application had been filed. They were still corresponding with Mr Chinhema. In May 2011 Messrs C Nhemwa and Associates complained to the Law Society Executive Secretary against Mr Chinhema.

Applicant only filed an application in the year 2014, five years after Messrs C Nhemwa assumed agency, for an order setting aside of the consent order entered in Case No. HC 3914/02. She failed to prosecute the application necessitating first respondent to file for dismissal for want of prosecution. The order dismissing the application was made on 10 August 2015 with an order for costs on a legal practitioner client scale (See Case No. HC 1441/15 on page 254 of the indexed papers.) The costs have not been paid.

Somehow the applicant managed to have Case No. HC 5456/14 enrolled again. On 3 March 2017 the matter was removed from the roll with an order for costs on a legal practitioner client scale. The costs have not been paid.

When all these applications were being made or unprocedurally pursued, applicant was represented by Messrs C Nhemwa and Associates.

Somehow the applicant relodged the application. The relief sought by her is an order setting aside the consent order in Case No. HC 3914/02, that she be granted leave to defend in the case and that the administration of the estate of her late husband be reopened.

The applicant’s lawyers filed answering affidavits in February 2016 and applied for set down in May 2016. (See page 484 of the indexed papers). The applicant’s legal practitioners even filed heads of argument on 24 June 2016 in order to set down a matter which had been dismissed.

The conduct by applicants’ legal practitioners, Messrs C Nhemwa & Associates is vexing. The prayer is for leave to defend the matter in C Nhemwa & Associates yet she was a plaintiff. The draft order is worded as follows:

“1. The court order under HC 3914/02 granted on 8 April 2005 be and is hereby set aside.

The applicant be and is hereby leave to defend the matter in HC 3914/02

The estate of the late Freddie Mutenhure registered under DR No. 1374/2000 be and is hereby re-opened until the finalization of the matter in HC 3914/02

The respondent be and is hereby ordered to pay costs of suit.”

Messrs C Nhemwa and Associates have persisted with a matter which was concluded long back. Meanwhile the first respondent continues to incur costs unnecessarily. Meanwhile the applicant is ensconced in the United Kingdom so first respondent cannot recover costs against her. The lawyers know it and associate themselves with the harassment. At the same time Messrs C Nhemwa and Associates have needlessly cast aspersions against colleagues.

This is a typical case of intransigence and contempt of court. There is everything wrong with the conduct of Messrs C Nhemwa & Associates in this case. Costs should be visited upon the law firm de bonis propriis.

See Pasalk & Anor v Kuzura & Ors 2003 (1) ZLR 287 (S).

Chibanguza Motor Car Repairs and Spares (Pvt) Ltd v Mutyasira & Ors 2003 ZLR (10 6 (H).

Costs on a legal practitioner client scale are not lightly awarded. However frivolous, vexatious and reckless motives can attract such an adverse award. I find that there was grave misconduct on the part of Messrs C Nhemwa and Associates. This application was not warranted. The law firm knew because they had been involved in earlier failed applications. The lawyers failed to attend court after successfully applying for postponement. Advocate Damiso just sought a postponement and absconded. A messenger from the law firm appeared in chambers to ask for judgment. See Herbstein and Van Winsen Civil Practice of the High Court of South Africa at p 971.

It is ordered as follows:

The matter is struck off the roll.

Messrs C Nhemwa & Associates are ordered to pay 1st respondent’s costs on a legal practitioner client scale de bonis propriis.

This judgment shall be placed before the Secretary of the Law Society for submission to the Council of the Law Society for a possible disciplinary action against the principals of C Nhemwa & Associates with reference CN/mm.

C. Nhemwa & Associates, applicant’s legal practitioners

T Hove and Associates, 1st respondent’s legal practitioners