MOYO & ANOR v HASSBRO PROPERTIES (PVT) LTD & ANOR 2010 (2) ZLR 194 (H)

Flynote

Costs - de bonis propriis - legal practitioner - award of such costs against practitioner foisting dishonest application on court

Legal practitioner - conduct and ethics - certificate of urgency - need for practitioner to be satisfied that matter is genuinely urgent - duty towards client- duty to restrain clients from abusing court process and making untruthful statements - costs de bonis propriis - award of such costs against practitioner foisting dishonest application on court

Headnote

The applicants had been evicted from premises that they were leasing, after default judgment had been obtained against them. Applications for condonation of late noting of appeal against the default judgment had been lodged but not pursued. After their eviction, the first applicant deposed to an affidavit in support of an urgent application for a stay of execution of the eviction order, well knowing that the eviction had already taken place. A junior legal practitioner issued a certificate of urgency, in which she alleged that the respondent had not established his rights in respect of the property.

Held, that legal practitioners, as officers of the court, are required by the rules to certify a matter urgent only after applying their own mind and judgment to the circumstances of the matter. Having done so, they must reach a personal view which they pass to a judge, certifying in their honour and name that the matter is urgent. Where a lawyer cannot reasonably entertain the belief that he professes in the urgency of the matter he risks a conclusion that he not only acted dishonestly but also wrongfully. Legal practitioners who certify matters as urgent when they have not bothered to apply their minds at all to the facts of the matter or even read the papers, and those who saddle the courts with such dishonest applications, will not only be visited with costs de bonis propriis but also with an order that they should not recover any fees from their clients.

Held, further, that when the applicants lodged this application they had already been evicted, a fact they did not disclose to the court. Their application for condonation had, for all intents and purposes, been abandoned. Legal practitioners have a duty to restrain their clients from abusing the process of the court and from making untruthful assertions, yet this application was littered with not only wrong conclusions of the law but downright mendacious statements.