MUDEKUNYE & ORS v MUDEKUNYE & ORS 2010 (2) ZLR 225 (H)

Flynote

Costs - higher scale - grant of - poor conduct of legal practitioner - permissible for court to punish in costs a litigant for the poor conduct of legal practitioner

Practice and procedure - stare decisis - decisions of High Court - single judging departing from ruling ostensibly made by two judges - decision in an urgent chamber application - not a decision made by two judges

Practice and procedure - application - urgent - certificate of urgency - certificate signed by legal practitioner in a matter handled by the legal firm of which he is a member - nothing improper in such conduct - not necessary for practitioner from another firm to sign certificate

Headnote

A lawyer in the firm representing the applicant in an urgent chamber application filed the certificate of urgency required by r 242(2)(b) of the High Court Rules 1971. Counsel for the respondent objected, arguing that it was not competent for a legal practitioner to either attest to an affidavit or sign an urgency certificate for and on behalf of a client who is being represented at his firm, as such lawyer has an interest in the matter. In so doing, he relied on the decision in Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 299 (H), a judgment of Cheda J, in which Ndou J concurred. Some judges had treated this decision as binding on them as it was, on the face of it, a decision of two judges and the principle of stare decisis obliged them, as judges sitting alone, to follow the decision.

Held, that it is imperative that in a civil matter in the High Court, before a judge can enjoy the privilege of concurring with or dissenting from the decision of a fellow judge of concurrent jurisdiction, that judge must have sat together with the other judge in the hearing of the matter. The decision in Chafanza was not a decision of two judges sitting together. It

Held, further, that a legal practitioner who is representing an applicant in an urgent application is better positioned to prepare a certificate of urgency than any other legal practitioner who has not been favoured with direct instructions from the applicant. This responsibility cannot be left to a legal practitioner who is a total stranger to the applicant and the application. With or without a certificate of urgency, the presiding judge determines the question of urgency. A certificate of urgency prepared by a legal practitioner representing the client or by a legal practitioner from the same law firm does not in any way reduce the court's discretion in determining the question of urgency. If anything, the court is better off with that kind of certificate, as opposed to being guided by a legal practitioner from a different law firm who is either not connected with the case or may have been overwhelmed by the voluminous nature of the application and therefore ends up blindly preparing or merelysigning a certificate of urgency because he has been requested to do so by a fellow legal practitioner. While an affidavit should be attested by a commissioner of oaths who is impartial, unbiased and independent in relation to the subject-matter of that affidavit, this requirement does not apply to certificates of urgency. There is, therefore, nothing improper in a legal practitioner filing a certificate of urgency, for the purposes of r 242 (2), to certify the urgency of a matter which was being handled by the law firm of which he was a member.

Held, further, that in a proper case it is permissible to punish litigants in costs for the poor conduct of their chosen legal counsel.