The Law Society of Zimbabwe v Andrew Hamandishe

### Preamble
1
HH 154/21
LPDT 24/18
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THE LAW SOCIETY OF ZIMBABWE

versus

ANDREW HAMANDISHE

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL

BEFORE CHATUKUTA J (Chairperson), MUSAKWA J (Deputy Chairperson), S. MOYO AND D. KANOKANGA (Members)

HARARE, 1 December 2020 & 7 April 2021

Disciplinary Hearing

B. Pesanai, for applicant

C. W. Gumiro, for respondent

MUSAKWA J: On 1st December 2020 we ordered that the respondent’s name be deleted from the register of legal practitioners, notaries and conveyancers. A request has been made for our reasons for purposes of appeal.

The respondent was admitted to practice law in 2011. At the time of the present allegations he was employed as a professional assistant by Magwaliba and Kwirira Legal Practitioners in Chiredzi. He was made to appear before this tribunal on allegations of misappropriation of trust funds and theft.

First Count

The summary of evidence filed by the applicant is not specific about the date of the theft incident during which the respondent stole US$50 from the legal firm. However, the complaint to the applicant by Magwaliba and Kwirira Legal Practitioners is dated 20 March 2013. Notwithstanding the paucity of the summary of evidence, details relating to the theft of the US$50 emanated from the respondent’s report to Magwaliba and Kwirira Legal Practitioners dated 6 March 2013. In that report he admitted that on 4 March 2013 he received a call from his sister who had travelled from Chivi. The sister was in need of financial assistance in the sum of US$100. A week earlier the respondent had promised to bail out the sister. On the particular day the respondent’s sister intended to immediately return home. The respondent had anticipated that he would receive the remainder of his salary on the same day but this was not to be. An unnamed colleague promised to give the respondent US$100 by midday. According to the respondent, he saw no harm in taking US$50 that was in the cash box as he would replace it upon receipt of the US$100. It turned out that no deposit was made into the firm’s trust account. The colleague who had promised a bailout failed to do so. In that report the respondent fully admitted the theft and stated that his guilt was “beyond a shadow of doubt.”

In the counter-statement, the respondent’s defence was that he instructed the bookkeeper to take US$50 from the cash box. He also instructed the bookkeeper to deduct the amount from his half salary that was due on that day. On the same day Chiredzi Town Council confirmed paying US$2000 into the legal firm’s account. Before his salary was processed the bookkeeper informed him that he would deduct the US$50. However, this did not proceed as the bookkeeper was instructed to stop processing his salary. The US$50 was replaced on the same day. The complainant was unjustly enriched as his salary was never paid.

Second Count

It was alleged that he and other employees of the legal firm connived to maintain a receipt book which they used for receipting clients of the firm and not banking the proceeds. On 26 September 2013 he was charged with forty-one counts of fraud arising from the misuse of the receipt book. The proceedings were held before the Magistrates Court sitting at Chiredzi. According to a schedule accompanying the charge sheet between 3 September 2012 and 12 March 2013 the respondent and another receipted various amounts totalling US$6 985 which they converted to their own use. A copy of the charge sheet attached to the application does not reflect what the trial magistrate endorsed as regards the plea tendered and the verdict. Nonetheless an extract from Chiredzi Magistrates Clerk of Court’s office correctly reflects a conviction for theft. The respondent was sentenced to 12 months’ imprisonment of which 3 months were suspended for 5 years on condition of good conduct. A further 3 months were suspended on condition of restituting US$4 470. The remaining 6 months were suspended on condition of performing 210 hours of community service.

The respondent’s defence was that support staff at Magwaliba and Kwirira Legal Practitioners undermined his authority. Whatever decisions he took against the employees were overturned by the principal of the law firm. The principal’s brother, John Kwirira and an unspecified bookkeeper are the ones who surreptitiously receipted money which they then squandered.

Mr Gumiro conceded that the respondent’s counter-statement amounts to an admission of the charges. In mitigation, Mr Gumiro submitted that deregistering the respondent would be too harsh. Whilst conceding that the respondent pleaded guilty to the charges in the Magistrates Court, he submitted that the respondent had little experience then. The respondent is a former magistrate. He had not been issued with a practising certificate since the onset of the allegations. Mr Gumiro submitted that the respondent be placed under pupillage for three years.

Mr Pesanai acknowledged that the respondent came clean from the onset. He also conceded that there was a delay in finalising the matter. Nonetheless he submitted that the applicant’s attitude regarding the penalty had not changed. The only concession was that costs should not be awarded against the respondent.

Penalty

Arising from the respondent’s criminal conviction the issue for determination is whether he is a fit and proper person to continue practising law. Generally a criminal conviction incurred by a legal practitioner constitutes evidence of his unfitness to practice law.

The sanction for dishonourable or unworthy conduct arising from a criminal conviction is predicated on the nature of conduct giving rise to the conviction. It follows that the seriousness of the criminal conduct is a determining factor.

In the present case, the respondent’s theft of US$50 was followed by sustained acts of theft spanning seven months. This was compounded by the existence of a secret receipt book that was used to aid in the embezzlement. To cap it all, the respondent is a former magistrate who was expected to know better the error of his ways.

It was for these reasons that we ordered that the respondent be disbarred.

Ngarava, Moyo & Chikono, respondent’s legal practitioners