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Sahawi International vs Yakub Ibrahim Mahamed - case summary
The Law Society of Zimbabwe
March 17, 2010

Sahawi International (pty) limited

And

Yakub Ibrahim Mahamed

And Breco International (private)

In the High Court of Zimbabwe before Makarau J
On 19, 20 and 23 October 2009 and 10 February 2010
Advocate A. Bava and Advocate Uriri for plaintiffs
Advocate A. P. de Bourbon for defendants

Case summary

On 25 August 2008, the Plaintiffs issued summons out of the High Court claiming from the defendants the sum of US$3 872 123-00 together with interest thereon at the rate of 6% p.a. capitalized monthly and calculated from 1 February 2001 to date of payment in full. In resisting the claim the first defendant denied the contract and averred that such a contract would have required the approval of the exchange control authority which the plaintiffs did not have. He further averred that he was however aware of certain monies that were advanced by plaintiff to a company, KMC Limited, which is registered and domiciled in the Democratic Republic of Congo and in which he has some interests. In its plea, the second defendant denied the contract in toto and put the defendant to the proof thereof. Accordingly the issues at hand were whether the second plaintiff should be party to the proceedings, whether the contract of the loan was between the plaintiffs and KMC Limited, the exact amount, if any, due to the defendants and whether the lending the lending of money by the plaintiffs required the approval of the exchange control authorities.

Prior to the resumption of the hearing which had been earlier on postponed the plaintiffs legal practitioners wrote to the Secretary of the Law Society and copied directly to the Judge and other addressees. Therein they expressed their concerns over the fact that Advocate de Bourbon had been issued with a practicing certificate for the year 2009 on the strength of the misrepresentation that he was a partner in the law firm Costa and Madzonga and that in their view, Advocate de Bourbon had no right of audience in the courts of this country. The grounds for this being the fact that Advocate de Bourbon no longer satisfied the requirement stipulated in section 5 of the Legal Practitioners Act [Chapter 27:07] , ("The Act"). The letter concludes by requesting the Law Society to approach the courts in terms of section 6 (2) of the Act for Advocate de Bourbon to be deleted from the register of legal practitioners. A letter was also simultaneously dispatched by plaintiff's legal practitioners to the Minister raising the same concerns and finally inquiring of him whether he had granted the Advocate a Residence Exemption Certificate in terms of the Act. On the above mentioned grounds Advocate Uriri objected to the presence of Advocate de Bourbon at the bar and as representing the defendants. Subsequent to the submission of the objection in writing the hearing was postponed to allow Advocate de Bourbon to respond in writing. The Judge mero motu directed that the objection be served upon the Law Society with an invitation that the society appear at the hearing of the matter. The Law society in turn filed a document in which it laid out its position in the matter. The Judge expressed her disquiet at the manner in which the objection was brought up and the heated arguments that characterised the hearing, particularly the practice of the plaintiffs to write directly to the

Judge in flagrant violation of trite rules of ethics. It was the learned Judge's conviction that the correct manner to approach the court to set aside the decision of the Law Society to issue Advocate de Bourbon with a practicing certificate was by way of review and she noted that no formal application was filed in pursuit thereof. She therefore proceeded to hear the objection on the merits and submitted that that in terms of the law, when a legal practitioner ceases to be ordinarily resident in Zimbabwe or a reciprocating country and has not been issued with a residence exemption certificate, he or she may be deleted from the register of legal practitioners and that such de-registration can be at the instance of the practitioner himself of herself or of the Law Society. In that regard the written request by plaintiff's legal practitioners to the Law Society asking it to approach the court for Advocate de Bourbon to be deleted from the register of legal practitioners was seen as correctly capturing the legal position. Quite clearly the plaintiffs were not, in objecting to the appearance of Advocate de Bourbon, doing the same thing as filing an application in terms of the law for a revive of the Law Society's decision to grant the PC.

Proceeding to deal with the matter on the merits the Judge submitted that she had examined the papers filed of record by plaintiff's legal practitioners to see if there is a minimum basis upon which she could regard the objection before her as an application for review. She took the contentions by the plaintiffs that the PC issued to Advocate de Bourbon for 2009 was issued on the false premise that he was practicing as a partner in Costa and Madzonga, yet he has continued to practice as an advocate as a basis upon which She could interfere with the Administrative discretion of the Law Society on review. However, regard being had to the fact that PCs in this jurisdiction are issued on a yearly basis the honourable Judge observed that the PC under probe had since elapsed by effluxion of time. By this reason it was now invalid and could thus not be used to enforce the right of audience before the court. In the result the objection was dismissed with costs.

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