Legal Ethics Notes - 2019 - 1

UNIVERSITY OF ZIMBABWE
LL.B. (HONS) PART III

LEGAL ETHICS (LB 305)
LECTURE NOTES
________________
CONTENTS
________
Definitions of Terms......................................................................7
1. What are Professional Ethics?.................................................13
Ethics..........................................................................................13
Profession...................................................................................14
Avowal of public service..................................................................15
Intellectual basis...............................................................................15
Training and education.....................................................................16
State recognition or privilege............................................................16
Self-regulation..................................................................................16
Representative institute.....................................................................16
Private practice as against employee status......................................17
Register of members.........................................................................17
Code of conduct................................................................................17
Advisory functions............................................................................18
Personal responsibility......................................................................18
Public service....................................................................................19
Definition of profession..........................................................19
The Church.............................................................................20
The Defence Forces................................................................20
The Civil Service....................................................................20
Teachers..................................................................................20
Nurses.....................................................................................21
Pharmacists.............................................................................21
Estate agents...........................................................................21
Banking and insurance...........................................................21
Professional ethics......................................................................22
Characteristics of codes of professional ethics.......................22
Nature of rules in code of professional ethics........................23
1. Rules arising from the fact that expertise is involved.............23
2. Rules protecting relationships with clients..............................23
3. Rules arising from concern with clients’ property..................23
4. Rules designed to preserve civil relationships with fellow-pro-
fessionals.................................................................................23
5. Rules setting out the relationship between members of the pro-
fession and their representative institute or governing body...24
6. Rules dealing with the relationship between practitioners and
the courts.................................................................................24
The Zimbabwean code...........................................................24
2. Nature and Structure of the Profession...................................27
A privileged profession..............................................................27
Rationale for giving lawyers a monopoly...................................28
Quid pro quo: competence and honesty....................................29
Practising certificates..................................................................30
General qualities legal practitioners are expected to possess.....30
3. Duties Owed by Legal Practitioners to the State....................32
Non-political illegality................................................................32
Political dissent...........................................................................33
4. Duty to the Courts...................................................................34
Respect for the courts.................................................................35
Communications with judicial officers.......................................36
Abuse of court process...............................................................36
Duty to assist the court adjudicate on real issues.......................37
Undertakings and assurances to courts.......................................38
Misleading a court: concealment of facts..................................38
Argument: citation of authorities, even adverse authorities......39
Unwarranted allegations.............................................................39
Interviewing witnesses...............................................................40
Generally...........................................................................................40
Civil cases.........................................................................................40
Criminal cases...................................................................................41
Examination of witnesses...........................................................41
Freedom of speech: defamation.................................................41
5. Duties Owed by Legal Practitioners to their Clients...............43
When does a person become a client?........................................43
Identification of client................................................................44
Acceptance or refusal of work....................................................44
Professional competence............................................................45
Degree of skill and competence expected of practitioners.....42
2
Duty to advise client...................................................................43
Criminal cases...................................................................................44
Duty to act with reasonable diligence.........................................44
Right to conduct case..................................................................45
Objectivity..................................................................................45
Confidentiality............................................................................46
Extent of duty of confidentiality.............................................46
Confidentiality and professional privilege.............................46
Reason for confidentiality......................................................47
Duration of duty of confidentiality.........................................48
Legal practitioner working for two parties.............................48
When otherwise confidential information may be disclosed..49
Conflict of interest......................................................................50
Exceptions:.............................................................................51
Conflict: acting for both parties.............................................52
Improper business or financial dealings.....................................53
Contracts between legal practitioner and client......................53
Improper acts of client................................................................54
Criminal cases: defending the admittedly guilty.......................54
Must the practitioner withdraw?.............................................55
May the practitioner represent the guilty client?....................55
Improper threats..........................................................................57
Settlements and compromises....................................................58
Change of practitioner by client.................................................59
Change of practitioner by legal practitioner...............................60
6. Duties Owed by Legal Practitioners to Third Parties..............62
7. Duties Owed by Legal Practitioners to the Profession and to
Other Practitioners................................................................63
Generally....................................................................................63
Duties towards partners and employees.....................................63
By-passing practitioner for other party.......................................64
Misleading other practitioners....................................................64
Honouring promises...................................................................64
Payment of advocate’s fee......................................................65
Guarantees of payment in conveyancing matters...................65
Meeting financial obligations.................................................65
Politeness....................................................................................66
Extra-professional activities.......................................................66
Reporting of misconduct............................................................67
3
8. Trust Accounts........................................................................69
Introduction................................................................................69
Opening of trust accounts...........................................................69
Maintenance of trust accounts....................................................70
Law Society’s supervision of trust accounts..............................71
9. Fees and Costs.........................................................................73
General principle........................................................................73
Overreaching..............................................................................73
Under-charging...........................................................................73
Deposits......................................................................................74
Retainers.....................................................................................74
Bill of costs.................................................................................74
Querying of costs by client.........................................................74
Champerty and contingency fee arrangements...........................74
Enforcing payment of fees..........................................................76
Pro Deo and Pro Amico work.....................................................77
10. Administering Oaths.............................................................78
11. Miscellaneous Statutory Duties of a Legal Practitioner.......79
Touting and advertising..............................................................80
Allowing one’s professional independence to be compromised 81
Practising in partnership with unregistered persons...................81
12. Cessation or Abandonment of Practice.................................83
Introduction................................................................................83
Disposal of files..........................................................................83
Trust funds..................................................................................84
13. Disciplinary Proceedings......................................................86
Responsibility of Law Society....................................................86
Initial investigation of allegations of unprofessional conduct....86
Action by Council of Society.....................................................87
Disciplinary Tribunal..................................................................89
Inquiries by Disciplinary Tribunal.............................................89
Standard of proof of misconduct............................................90
Powers of Disciplinary Tribunal following inquiry...................91
Cases where inquiry need not be held........................................93
Publication of decisions of Disciplinary Tribunal......................93
Appeals from decisions of Disciplinary Tribunal.......................93
Restoration to Register...............................................................94
14. Judges, Magistrates and Prosecutors.....................................97
Judicial officers...........................................................................97
4
The judicial code of ethical conduct.......................................97
Independence....................................................................................97
Integrity.............................................................................................97
Impartiality.......................................................................................98
Equality.............................................................................................99
Competence and diligence................................................................99
Enforcement of the code.................................................................100
Common-law obligations of judicial officers.......................100
General attributes............................................................................100
Duty to hear cases...........................................................................101
Duty of recusal................................................................................101
Criminal offences............................................................................102
Extra-judicial activities...................................................................103
Interviewing witnesses....................................................................104
Former judges.................................................................................104
Prosecutors................................................................................105
General.................................................................................105
Duty towards unrepresented accused persons......................106
Duty to disclose discrepancies..............................................106
Duty to call witnesses...........................................................107
Duty to disclose witnesses’ statements.................................107
Miscellaneous duties (from Reid Rowland, Prosecutors Hand-
book)..............................................................................107
Appendix 1: Legal Practitioners Act.........................................109
Appendix 2: Law Society of Zimbabwe By-laws (Extracts)....149
Appendix 3: Legal Practitioners (General) Regulations (Extracts)167
Appendix 4: Legal Practitioners (Code of Conduct) By-laws. .172
Appendix 5: Contingency Fee Agreements..............................180
Appendix 6: Disciplinary Tribunal Regulations.......................184
Appendix 7: International Bar Association : International Code
of Ethics..............................................................................189
Appendix 8: united Nations : Basic Principles on the Role of
Lawyers...............................................................................192
Appendix 9: Code of Ethics for Zimbabwean Judges...............194
Appendix 10: United Nations : Basic Principles on the Independ-
ence of the Judiciary............................................................206
Appendix 11: African Union : Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa..........207
Appendix 12: United Nations : Guidelines on the Role of Prosec-
utors.....................................................................................208
5
Appendix 13: Code of Ethics for Prosecutors............................210
1. What are Professional Ethics?...................................................7

Ethics............................................................................................7
Profession.....................................................................................8
The Church...............................................................................8
The Defence Forces..................................................................8
The Civil Service......................................................................9
Teachers....................................................................................9
Nurses.......................................................................................9
Pharmacists...............................................................................9
Estate agents...........................................................................10
Banking and insurance...........................................................10
Some factors distinguishing professions from other activities10
Characteristics of professions.................................................11
Conclusion..............................................................................14
Professional ethics......................................................................14
Characteristics of code of professional ethics........................14
Nature of rules in code of professional ethics........................15
The Zimbabwean code...........................................................16
2. Nature and Structure of the Profession...................................19
A privileged profession..............................................................19
Rationale for giving lawyers a monopoly...................................20
Quid pro quo: competence and honesty....................................21
Excursus: meaning of “honesty”, “integrity”, etc......................21
Practising certificates..................................................................22
General qualities legal practitioners are expected to possess.....22
3. Duties Owed by Legal Practitioners to the State....................24
Political dissent...........................................................................24
Non-political illegality................................................................24
4. Duty to the Courts...................................................................26
Respect for the courts.................................................................26
Communications with judicial officers.......................................27
Abuse of court process...............................................................28
Undertakings and assurances to courts.......................................28
Misleading a court: concealment of facts..................................29
Argument: citation of authorities, even adverse authorities......29
Unwarranted allegations.............................................................30
6
Interviewing witnesses...............................................................30
Examination of witnesses...........................................................32
Freedom of speech: defamation.................................................32
5. Duties Owed by Legal Practitioners to their Clients...............34
When does a person become a client?........................................34
Identification of client................................................................34
Acceptance or refusal of work....................................................35
Professional competence............................................................36
Degree of skill and competence expected of practitioners.....36
Duty to advise client...................................................................37
Duty to act with reasonable diligence.........................................38
Right to conduct case..................................................................39
Objectivity..................................................................................40
Confidentiality............................................................................40
Legal practitioner working for two parties.............................42
When otherwise confidential information may be disclosed..42
Conflict of interest......................................................................44
Exceptions:.............................................................................45
Conflict: acting for both parties.............................................45
Improper business or financial dealings.....................................46
Contracts between legal practitioner and client......................47
Improper acts of client................................................................47
Criminal cases: defending the admittedly guilty.......................48
Must the practitioner withdraw?.............................................48
May the practitioner represent the guilty client?....................49
Improper threats..........................................................................50
Settlements and compromises....................................................51
Change of practitioner by client.................................................52
Change of practitioner by legal practitioner...............................53
6. Duties Owed by Legal Practitioners to Third Parties..............55
7. Duties Owed by Legal Practitioners to Other Practitioners and
to the Profession....................................................................56
Generally....................................................................................56
Duties towards partners..............................................................56
By-passing practitioner for other party.......................................56
Misleading other practitioners....................................................57
Honouring promises...................................................................57
Payment of advocate’s fee......................................................58
Guarantees of payment in conveyancing matters...................58
7
Meeting financial obligations.................................................58
Politeness....................................................................................58
Extra-professional activities.......................................................58
Reporting of misconduct............................................................59
8. Trust Accounts........................................................................61
Introduction................................................................................61
Opening of trust accounts...........................................................61
Maintenance of trust accounts....................................................62
Law Society’s supervision of trust accounts..............................63
9. Fees and Costs.........................................................................65
General principle........................................................................65
Overreaching..............................................................................65
Under-charging...........................................................................65
Deposits......................................................................................66
Retainers.....................................................................................66
Bill of costs.................................................................................66
Querying of costs by client.........................................................66
Champerty and contingency fee arrangements...........................66
Enforcing payment of fees..........................................................68
Pro Deo and Pro Amico work.....................................................69
10. Administering Oaths.............................................................70
11. Miscellaneous Statutory Duties of a Legal Practitioner.......71
Touting and advertising..............................................................72
Allowing one’s professional independence to be compromised 73
Practising in partnership with unregistered persons...................73
12. Cessation or Abandonment of Practice.................................75
Introduction................................................................................75
Disposal of files..........................................................................75
Trust funds..................................................................................76
13. Disciplinary Proceedings......................................................78
Responsibility of Law Society....................................................78
Initial investigation of allegations of unprofessional conduct....78
Action by Council of Society.....................................................79
Disciplinary Tribunal..................................................................81
Inquiries by Disciplinary Tribunal.............................................81
Standard of proof of misconduct............................................82
Powers of Disciplinary Tribunal following inquiry...................83
Cases where inquiry need not be held........................................85
Publication of decisions of Disciplinary Tribunal......................85
8
Appeals from decisions of Disciplinary Tribunal.......................85
Restoration to Register...............................................................85
14. Judges, Magistrates and Prosecutors.....................................87
Judicial officers...........................................................................87
The judicial code of ethical conduct.......................................87
Common-law obligations of judicial officers.........................90
Generally................................................................................93
Lecturing and writing.............................................................93
Membership of organisations devoted to legal development. 93
Membership of law firms.......................................................93
Political activities...................................................................93
Commercial activities.............................................................94
Prosecutors..................................................................................95
General...................................................................................95
Duty towards unrepresented accused persons........................96
Duty to disclose discrepancies................................................96
Duty to call witnesses.............................................................97
Duty to disclose witnesses’ statements...................................97
Miscellaneous duties (from Reid Rowland, Prosecutors Hand-
book)................................................................................97
Appendix 1: Legal Practitioners Act...........................................99
Appendix 2: Law Society of Zimbabwe By-laws (Extracts)....139
Appendix 3: Legal Practitioners (General) Regulations (Extracts)157
Appendix 4: Legal Practitioners (Code of Conduct) By-laws. .162
Appendix 5: Contingency Fee Agreements..............................168
Appendix 6: Disciplinary Tribunal Regulations.......................172
Appendix 7: International Bar Association : International Code
of Ethics..............................................................................177
Preamble...............................................................................177
Rules.....................................................................................177
Appendix 8: united Nations : Basic Principles on the Role of
Lawyers...............................................................................180
Duties and Responsibilities..................................................180
Guarantees for the functioning of lawyers...........................180
Freedom of expression and association................................180
Professional associations of lawyers....................................181
Disciplinary proceedings......................................................181
Appendix 9: Code of Ethics for Zimbabwean Judges...............182
Appendix 10: United Nations : Basic Principles on the Independ-
ence of the Judiciary............................................................194
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Independence of the judiciary..............................................194
Professional secrecy and immunity......................................194
Appendix 11: African Union : Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa..........195
4. Independent tribunal........................................................195
5. Impartial tribunal.............................................................195
Appendix 12: United Nations : Guidelines on the Role of Prosec-
utors.....................................................................................196
Status and conditions of service...........................................196
Role in criminal proceedings................................................196
Relations with other government agencies or institutions....197
Observance of the Guidelines...............................................197
Appendix 13: Code of Ethics for Prosecutors............................198
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DEFINITIONS OF TERMS
Many of the words used to describe qualities which legal practitioners should possess
‒ “honesty”, “integrity”, “probity”, “trustworthiness” and so on ‒ are imprecise and
have several, sometimes overlapping, meanings. Other words and phrases used in the
context of professional ethics may be unfamiliar to readers: “conflict of interest” for
example.
What follows is an attempt to explain the meanings of some of the words and phrases
used in these notes:1
Abuse of process: The improper use of a court order or other court process for a pur-
pose that is unlawful or beyond the scope of the process. More generally, the
phrase means the use of court procedure for a purpose for which it was neither in-
tended nor designed, to the prejudice of another party to the proceedings.
Candidness: Essentially, this means a willingness to say what one thinks, but more
specifically it implies a fundamental honesty and fairness that make evasion im-
possible and suggest a refusal to dodge an issue or to be governed by bias or fear.
Competence: Ability to perform one’s professional duties properly.
Confidentiality: Secrecy; keeping information secret. The duty of confidentiality is
the legal practitioner’s duty not to disclose, except in certain limited circum-
stances, information regarding his or her clients and their affairs.
Conflict of interest: A real or apparent incompatibility between a legal practitioner’s
professional interests and his or her private interests, or between the interests of
two or more of his or her clients.
Diligence: Hard work, continual effort to accomplish a task; when used in the ex-
pression “due diligence” it means the care and effort reasonably expected from a
person who seeks to satisfy a legal requirement or to discharge an obligation.
Disinterested: Impartial, objective, not influenced by one’s own advantage. It is not
the same as uninterested, which means unconcerned, uncaring or bored
Honesty: This is the most basic attribute that legal practitioners must possess. It im-
plies a refusal to lie, steal, defraud or deceive.
Honour: Honour adds to honesty the quality of high-mindedness or a sense of allegi-
ance to the standards of one’s profession and, more generally, a sense of allegi-
ance to what is right.
Integrity: This implies that one is incorruptible or incapable of being false to a trust
or a responsibility or to one’s own high standards. It means soundness of moral
principle, the character of uncorrupted virtue, uprightness, honesty and sincerity.2
Litigious work: Work involving litigation, i.e. the conduct of court cases.
Probity: Probity stresses proved honesty or integrity; in other words, that the person
has proved himself or herself to be a person of integrity.
1
For many of them I have relied on Merriam Webster’s Dictionary of Synonyms (Springfield, Massa-
chusetts 1984); and A New English Dictionary (the first edition of the Oxford English Dictionary);
and Black’s Law Dictionary (4th Pocket Edition, Bryan A. Garner).
2
Behrman v Law Society, Transvaal 1980 (4) SA 4 (T) at 9, quoting the Shorter Oxford English Dictio-
nary.
Trustworthiness: A person is trustworthy if he or she shows qualities that merit
complete confidence or trust in his or her integrity, truthfulness, discretion or reli-
ability.
Unprofessional, dishonourable or unworthy: These words are used to describe im-
proper conduct on the part of legal practitioners, and they are often used without
distinguishing between them: see for example, section 23 of the Legal Practition-
ers Act [Chapter 27:07]. They do however have different meanings. “Unprofes-
sional” means below or contrary to the standards expected in a particular profes-
sion. It does not necessarily connote dishonesty: inefficient conduct, for ex-
ample, is unprofessional, and so is disclosing confidential information. “Dishon-
ourable” means lacking in honour ‒ and the meaning of “honour” is given above.
“Unworthy”, in the context, means inappropriate to one’s condition or status as a
professional person; it has connotations of immorality or dishonesty.
1. WHAT ARE PROFESSIONAL ETHICS?
To understand the nature and scope of professional ethics, one should have some idea
of what is meant by the terms “ethics” and “profession”.
Ethics
Ethics is a branch of philosophy, and philosophy:
“consists of speculations on matters as to which definite knowledge has, so far, been un-
ascertainable. … All definite knowledge … belongs to science; all dogma as to what
surpasses definite knowledge belongs to theology. But between theology and science
there is a No Man’s Land, exposed to attack from both sides; this No Man’s Land is
philosophy. Almost all the questions of most interest to speculative minds are such as
science cannot answer, and the confident answers of theologians no longer seem so con-
vincing as they did in former centuries. … Has the universe any unity or purpose? Is it
evolving towards some goal ? Are there really laws of nature, or do we believe in them
only because of our innate love of order ? … Is there a way of living that is noble and
another that is base, or are all ways of living merely futile? If there is a way of living
that is noble, in what does it consist, and how shall we achieve it? … To such questions
no answer can be found in the laboratory. … The studying of these questions, if not the
answering of them, is the business of philosophy.”1
All fields of human activity can be the subject of philosophy:
“Lawyers are referring constantly to guilt and innocence, justice, a fair trial, and so on.
But if one of them says: ‘When we talk about justice, do we mean the same as what the
politicians mean when they talk about social justice, or are we talking about something
different here?’ he is beginning to do philosophy of law. The doctor who asks himself:
‘Is there ever such a thing as perfect health ‒ if not, what do we mean by cure?’ is be -
ginning to do philosophy of medicine. In every field of activity there is a philosophy of
it that involves questioning its fundamental concepts, principles, and methods. So there
is philosophy of science, philosophy of religion, philosophy of art, and so on. Nearly
always, some of the best practitioners in each field are interested in its philosophy.” 2
Ethic is the branch of philosophy that enquires into issues of right conduct and good
life. It is not simply an analysis of right and wrong; it is rather a study of the stand-
ards we use to determine whether something is right or wrong. Thus abortion may be
moral or immoral, depending on our code of values, but ethics seeks to explain how
we decide whether it is moral or immoral and what standards we used to reach that
decision. Ethics is therefore sometimes called moral philosophy. Ethics is more than
just morality, however: it is philosophical thinking about moral issues and moral
judgements.3 One philosopher4 has put it this way:
“As a branch of philosophy, [ethics] is the study of concepts such as good, right, evil,
wrong, moral obligation, duty, and of the kinds of reasoning (often called ‘practical
reasoning’) used in working out what one should do in given circumstances, and more
generally how one should live.”
Neither philosophy nor ethics seeks to lay down rules or laws to govern our beha-
viour; at the most they seek to find principles that may guide us, and to study the
nature of those principles.
1
Bertrand Russell History of Western Philosophy (2nd ed 1961) (Routledge, London) p. 13.
2
Bryan Magee The Story of Philosophy (DK publishers) p. 4.
3
See Ethics by W.K. Frankena 2nd ed (1973)(http://www.ditext.com/frankena/ethics.html; An Intro-
duction to Ethics by P. Newall (http://www.galilean-library.org/int11.html).
4
A.C. Grayling, Ideas that Matter (2010) (Basic Books, New York) page 123.
Ethics in this philosophical sense forms no part of the curriculum of lawyers in Zimb-
abwe, and the profession is the poorer for it. Many issues that face legal policy-
makers are essentially ethical issues. Abortion is one, the death penalty is another.
Lawyers like to think they are peculiarly well equipped to discuss and decide such is-
sues, but without a proper grounding in ethics or moral philosophy their discussions
are no better informed than those of any member of the public.
The word “ethics”, in addition to denoting a branch of philosophy, has a further mean-
ing:
“In its ordinary general use it denotes the principles and attitudes which regulate the be -
haviour of individuals, groups or corporate bodies, the aim being to identify what they
ought to do, in the sense of identifying what is right or a good thing for them to do.”5
It is in this sense that the word is used in the term “professional ethics”, which denotes
the principles and attitudes that regulate the behaviour of any group of people who
constitute a profession. Indeed, the word is often used more narrowly to describe the
rules that regulate the conduct of members of a profession.
This brings us to the definition of “profession”.
Profession6
What is a profession? The word is very imprecise. At one extreme it may mean any
calling or vocation; at the other it may embrace only such callings as the law and
medicine. In Britain, up tountil about the 19th century, only the Church, the law and
medicine were regarded as professions (they were the learned professions) with pos-
sible claims from the army and the navy. But nowadays the word embraces many
other occupations ‒ accountants, architects and so on. The word is also used in a joc-
ular sense: sex workers are sometimes called members of “the oldest profession”.7
According to the Oxford English Dictionary, 8 the word “profession” derives from
Latin and French words meaning a declaration of faith or religious vows, or a voca-
tion or occupation that one publicly avows. The OED defines “profession” as:
“a. An occupation in which a professed knowledge of some subject, field, or science is
applied; a vocation or career, especially one that involves prolonged training and a
formal qualification. …
In early use applied spec. to the professions of law, the Church, and medicine, and
sometimes extended also to the military profession.
…
b. More widely: any occupation by which a person regularly earns a living.
N.E.D. (1908) notes: ‘Now usually applied to an occupation considered to be socially
superior to a trade or handicraft; but formerly, and still in vulgar (or humorous) use, in-
cluding these.’”
That last quotation from the NED (the first edition of the Oxford English Dictionary)
reveals the snobbery attached to the word “profession”: professions are regarded as
5
A.C. Grayling, Ideas that Matter (2010) (Basic Books, New York) page 123.
6
This discussion is based on an article What is a “Profession”? by P. Wright in 1951 Canadian Bar
Review, and Professional Ethics by F.A.R. Bennion (1969) (Charles Knight & Co, London).
7
And why should they not be regarded as professionals? They hire out their bodies while lawyers hire
out their voices; they practise certain skills, while lawyers practise their (mostly different) skills. The
comparisons could go on …
8
https://www.oed.com/view/Entry/152052?
14
socially superior to other occupations, which is why architects, pharmacists, nurses,
chiropractors, journalists and others want
their occupations to be regarded as professions.
Snobbery and social distinctions are not be the only criteria by which professions are
distinguished from other occupations; for an occupation to be recognised as a profes-
sion it should have certain characteristics that put it on a higher level above other oc-
cupations. Three of them are mentioned in the OED definition of profession: an
avowal, the application of knowledge of a subject, prolonged training and formal
qualifications. The following seem to be the characteristics which are the distinguish-
ing marks of professions:
Avowal of public service
A public avowal, an offer of public service. On joining a profession members are of-
ten required to make a declaration binding themselves to serve the public and abide by
the ethical rules of the profession. Medical practitioners take the Hippocratic Oath, or
a form of it. Legal practitioners, on registration, take an oath of office in public be-
fore the High Court. The oath is set out in the Third Schedule to the Constitution and
binds practitioners to serve Zimbabwe (i.e. the public) well and truly in the office of a
legal practitioner.
Intellectual basis
An intellectual discipline, capable of formulation on theoretical lines, requiring a good
educational background, and tested by examination.
The discipline should generally be one in which the public needs to be protected
against incompetence. The disciplines of law and medicine are examples of this. Bad
advice given by a lawyer or a physician may have disastrous consequences for the cli-
ent or patient, so the public needs to be protected against incompetent or fraudulent
practitioners of those disciplines.
Special skill
The third characteristic is the special skill that professional persons are assumed to
have. They must not only be skilful, they must profess to be so.
The essential difference between professional and trading skills lies in the func-
tions involved. There is a difference in kind between the supply of furniture or
groceries and the supply of skilled advice on the basis of trust and confidence.
Both activities require skill, but the skills are different. In professions the skills are
based on science or a recognised sphere of knowledge: law in the case of legal
practitioners, medicine in the case of health professionals.
There is some basis for the idea that the performance of manual work is incompatible
with a profession. Yet dentists and surgeons perform such work while barbers (who
originally performed surgical work) are not regarded as professionals. So manual ef-
fort is not in itself a disqualification for professional status — though if little or no in-
tellectual effort accompanies it the activity will rank with trades rather than profes-
sions.
Training and education
The fourth characteristic is training and education. At the very least there must be
training in technical skills: surgeons must be trained to wield a scalpel, lawyers must
be trained to conduct court proceedings. At most there should be education in the
15
broad sense, giving the professional person the breadth of understanding to relate his
or her work to the social problems the profession seeks to address.
State recognition or privilege
The fifth characteristic is privilege conferred or recognised by the State. Professions
are protected and governed by special laws which usually reserve certain work to
members of a profession and regulate the conduct of those members. In Zimbabwe
medical practitioners are protected and governed by the Health Professions Act
[Chapter 27:19], legal practitioners by the Legal Practitioners Act [Chapter 27:07].
Self-regulation
The sixth characteristic is self-discipline or self-regulation. A profession must be able
to regulate the conduct of its members. If members are free to conduct their busi-
nesses as they please, they will lack the cohesion necessary to call themselves mem-
bers of a profession. So there must be some regulation. If however the regulation or
discipline comes from an outside authority such as the State, then the profession will
not be setting its own independent standards. The importance of regulation by the
profession itself is emphasised by one learned author as follows:
“As the State steadily assumes control of an increasing part of the life of its citizens, the
existence of self-governing groups not directly dependent on the State becomes the
surest guarantee of the liberties of all. The churches, the professions, the unions, and
the other societies and brotherhoods of persons with common interests, are the bulwarks
of our liberties against the totalitarian state on the march in our midst. They must
neither control the State nor be controlled by it. If we are wise, we shall guard and pre-
serve the independent position of all of them.”9
Professional independence is vitally important in the case of the legal profession be-
cause lawyers have particular responsibility for upholding the rights and freedoms of
citizens against encroachment by the State. If their professional conduct is regulated
by the State then they cannot properly undertake that responsibility.
Representative institute
Arising out of the need for a profession to be independent, the conduct of its members
should be regulated by an institute which is representative of the members and is
wholly or largely independent of outside interference. Hence there should be one or
more organisations representing members of the profession, particularly those in
private practice, and having the function of safeguarding and developing the expertise
and standards of the profession. To be representative, such an organisation should
consist wholly or mainly of members elected by the professionals concerned.
The importance of such an organisation cannot be overemphasised, particularly in re-
gard to the legal profession. According to principle 24 of the United Nations Basic
Principles on the Role of Lawyers:
“Lawyers shall be entitled to form and join self-governing professional associations to rep-
resent their interests, promote their continuing education and training and protect their
professional integrity. The executive body of the professional associations shall be elec-
ted by its members and shall exercise its functions without external interference.”
Professional associations of lawyers are thus created for two main purposes: to safe-
guard the professional interests of lawyers and to protect and strengthen the independ-
ence of the legal profession. To carry out either of these purposes, a professional as-
9
P. Wright, “What is a Profession”, Vol XXIX (1951) Canadian Bar Review, p. 748.
16
sociation must be free from governmental control. To carry out the second purpose,
an association must sometimes engage in political activity, though it should not in-
dulge in partisan politics.10
Private practice as against employee status
Also arising out of the need for a profession to be independent, a profession should
have a foundation in private practice. The majority of its members should not be em-
ployees, because employees are bound by their contracts of employment to obey or-
ders given to them by their employers, and the employee-employer relationship is in-
compatible with professional independence.
This emphasis on private practice has a long history. The activities of lawyers and
doctors (traditionally regarded as professional) were seldom carried on by people in
salaried employment until the 19th century. Even nowadays members of a profession
in private practice are often regarded as having a higher status than those in employ-
ment. That is certainly so in the legal profession in modern Zimbabwe, where practi-
tioners who are in full-time employment are debarred by ethical rules from carrying
out certain professional functions on behalf of their employers. And many profession-
als (e.g. lawyers) employed by large enterprises such as the Civil Service regard them-
selves as employees (public servants) first and professionals second. They believe
that the interests of their employers come first, above their professional responsibilit-
ies. In this they are not entirely correct. Professional people in their position are in
some way akin to independent contractors: when they carry out professional work at
the behest of their employers they are bound by their professional codes of conduct
and they are subject to discipline by their professional bodies if they contravene those
codes.
Register of members
The public should be able to find out who the members of a profession are. Hence
there should be a roll or register identifying the members. Persons whose names are
not on the roll or register are not regarded as being part of the profession.
In the case of the legal profession, the Register of Legal Practitioners, Notaries Public
and Conveyancers is kept by the Registrar of the High Court.11
Code of conduct
There must be a code of professional ethics, laid down and enforced by one or more
professional institutes. In the case of lawyers, principle 26 of the United Nations Ba-
sic Principles on the Role of Lawyers states:
“Codes of professional conduct for lawyers shall be established by the legal profession
through its appropriate organs, or by legislation, in accordance with national law and cus-
tom and recognised international standards and norms.”
Any such code of professional conduct must impose higher standards on members of
the profession than those imposed by the ordinary law. If codes obliged professionals
to do no more than ordinary citizens are required to do in the same circumstances,
then the codes would be useless. A code that prohibited lawyers from stealing from
their clients or doctors from murdering their patients, for example, would be pointless
because no one is allowed to steal or to commit murder.
10
International Principles on the Independence and Accountability of Judges, Lawyers and Prosec-
utors International Commission of Jurists (2004), page 71.
11
Section 3 of the Legal Practitioners Act [Chapter 27:07].
17
It is important that a code of conduct, where there is a written one, should be drawn
up by the profession itself or, if it is embodied in legislation, that the legislation
should be drafted with input from the professional association.12
Advisory functions
Many, if not most, professions are consultative professions: the major part of their
members’ professional work consists in giving advice to clients who have consulted
them. This is certainly true of the legal profession, because lawyers must advise their
clients before taking any action on their behalf. For example, a lawyer who is asked
to draw up a contract of sale for a client is expected to advise the client on the legal
effect of the contract and on what terms should be included in it.
In some professions the advisory function is less prominent than it is in the legal pro-
fession, though it is almost always there. Architects, for example, perform their main
function by preparing plans of buildings though they also have to advise their clients
on matters regarding the construction of those buildings.
Personal responsibility
Where a professional person gives advice, he or she accepts full personal responsibil-
ity for that advice. The responsibility is owed primarily to the client, but also to the
profession and to society at large. Professional persons do not guarantee the accuracy
of their advice, but they do impliedly hold themselves out as having the average de-
gree of competence associated with the proper discharge of the duties of the profes-
sion, and if they show less than that competence they may be charged by their repres-
entative institute for misconduct.
This is one of the reasons why legal practitioners who practise in association must do
so in partnership rather than through the medium of limited liability companies. 13
Partners are vicariously liable for the conduct of their fellow-partners 14, so if one legal
practitioner in a partnership acts wrongfully in the course of the partnership business,
all the other partners are liable to the full extent of their estates. If legal practitioners
were associated together in a limited liability company, on the other hand, the com-
pany would be vicariously liable for wrongdoing on the part of any one of them,
whether in delict or contract, and the practitioner who committed the wrongful act
would also be liable in delict as the principal wrongdoer. The other legal practitioners
would not be liable. If, however, the wrongdoing amounted to breach of contract
rather than delict then even the practitioner who committed the wrong would not be li-
able if the injured client contracted with the company rather than with the practitioner
personally — as would usually be the case.
Public service
Finally, the mark of a true profession, there must be an unselfish aspect of public ser-
vice. For people to be regarded as professionals they must be motivated by something
more than personal advantage. They must have an outlook which is essentially ob-
12
13
This rule is not stated expressly but through section 23(1)(f) of the Legal Practitioners Act [Chapter
27:07], which makes it unprofessional conduct for a practitioner to enable an unregistered person —
for example, a company — to charge fees for professional work that is reserved for legal practitioners.
Section 23(1)(o), moreover, prohibits arrangements which allow an unregistered person such as a com -
pany to participate in fees reserved solely to a legal practitioner.
14
Lindsay & Ors v Stofberg NO 1988 (2) SA 462 (C) at 467F.
18
jective and disinterested, where the motive of making money is subordinated to
serving the client and the public interest.
In the case of the legal profession, this is particularly important. As stated by the In-
ternational Commission of Jurists in International Principles on the Independence
and Accountability of Judges, Lawyers and Prosecutors (ICJ Practitioners’ Guide
Series No. 1, 2004) at p. 65:
“Lawyers are, with judges and prosecutors, one of the pillars upon which human rights and
the rule of law rest. Lawyers play an essential role in protecting human rights and in
guaranteeing that the right to a fair trial is respected by providing accused persons with a
proper defence in court.”
Legal practitioners who are concerned solely with making money will disregard cli-
ents who cannot pay for their services, and so will abandon their role in upholding
justice for all. A mercenary lawyer, like a mercenary priest, betrays his calling.
Looking beyond the legal profession, commercial or trading activities are often re-
garded as incompatible with professionalism. True professionals, purists say, should
shun such activities: speculative profit-seeking is felt to be incompatible with single-
minded devotion to a professional calling. As an American judge, R.J. Gerber, says in
Lawyers, Courts and Professionalism (1989) Greenwood Press, New York, p. 11:
“Professions and business have traditionally been contrasted. The professional is seen as
oriented not to personal profit but to disinterested tasks like the advancement of know -
ledge. Professionalism involves limitations on the aggressive pursuit of self-interest.
Professionals subordinate their financial interests to the interests of the public, especially
to people who need help.”
Definition of profession15
Bringing these characteristics together, we may define a profession as a self-regulat-
ing body of people whose members:
(a) are recognised as being trained in some special skill or learning, based on science
or a recognised sphere of knowledge, in some field of activity in which the public
needs to be protected against incompetence;
(b) are identifiable by reference to a register or record;
(c) belong to, or are entitled to belong to 16, a representative organisation which sets
and enforces professional standards;
(d) usually perform advisory functions and accept personal responsibility for their ad-
vice;
(e) hold themselves out as willing to serve the public; and
(f) submit to a set of rules which impose higher standards of conduct than those re-
quires by law of the ordinary citizen.
Some of these characteristics can be found individually in occupations that are not re-
garded as professions. The work done by plumbers, for example, is regulated by mu-
nicipal by-laws; police officers are governed by the Police Act [Chapter 11:10] and
the Criminal Procedure and Evidence Act [Chapter 9:07]. Carpenters and masseurs
have special skills. But none of these occupations is generally regarded as a profes-
15
This definition is adapted from A Handbook of Professional Conduct for Solicitors by F. Silverman
(Butterworths, 1989).
16
Registered legal practitioners have the right to join the Law Society of Zimbabwe, but do not have to
belong to it: section 52 of the Legal Practitioners Act [Chapter 27:07].
19
sion. Only if a calling or occupation, and the people who practise it, possess all or
most of the characteristics listed above ‒ particularly the last one ‒ can the calling or
occupation be truly called a profession.
To help us get an idea of what a profession is, we can usefully examine various voca-
tions and callings and analyse how far they fit in with our idea of a profession:
The Church
The Church is the mother of the professions, in that much of the work of other profes-
sions was originally performed by clergymen. But most people think of professions
in terms of economics and the supply of services in return for a fee or reward. The re-
ward that priests and clergymen work for is in the hereafter, not this world, so in that
respect at least they differ from other professionals. Furthermore (at least in the Ro-
man Catholic and Anglican churches) they have a hierarchical structure which sets
them apart from other professions such as the law and medicine. Priests and clergy-
men in such a hierarchy tend to be employees, and as already pointed out an em-
ployer-employee relationship sits uneasily with professional status.
If, for the above reasons, we regard the Church as falling outside the modern concept
of a profession, we can infer that a profession consists of persons engaged in an eco-
nomic activity such as supplying a service for pecuniary reward. We may also infer
that a rigid hierarchy is alien to a profession.
The Defence Forces

In modern democratic societies, military personnel are completely under the control
of the State; it is only in a military dictatorship that they are free to do as they wish.
This feature of State control makes it difficult or impossible to think of the armed
forces as constituting a profession in the true sense. Although soldiers require train-
ing before they can be deployed, and although the conduct of military operations re-
quires considerable skill, the training cannot be put to use, and the skill cannot be ex-
ercised, except at the behest of the State and to implement State policy. Furthermore,
soldiers work (or should work) as a team and there is little scope for individual enter-
prise as appears in other professions. They are also organised in a rigidly hierarchical
structure.
For these reasons, the Defence Forces do not properly qualify as a profession. Again
looking at the reasons why we excluded them, we can infer that a profession should
not consist of people wholly employed and controlled by a single entity, and further
that a rigid hierarchy is alien to the concept of a profession.
The Civil Service

For the same reasons, civil servants do not as such constitute a profession, even
though professional persons such as lawyers and doctors and lawyers may be mem-
bers of the Civil Service.
Teachers
Teachers are often regarded as professionals because their work requires training and
the exercise of specialised knowledge and skill. On the other hand, they lack a repres-
entative body (apart from trade unions) and do not fix their own professional stand-
ards. Nor is there any national roll or register of teachers. Moreover, almost all
20
teachers are employees, either of the State or of persons who run private schools. For
these reasons, they probably cannot be regarded as members of a profession.
The reason why teachers can be regarded as professionals — their special-

ised training, knowledge and skill — suggests that one characteristic of a pro-
fession is that its members must perform skilled work which requires training
and specialised knowledge.
Conversely, looking at the reasons for excluding teachers from the ranks of
professionals, we may infer that members of a profession should be able to fix
their own professional standards, whether they do it directly or through an as-
sociation. There should also be some sort of roll or register of members of the
profession.
Nurses
In the days when nurses worked under the direct supervision of a doctor, they were
probably not professionals. Now, however, they perform a great deal of skilled med-
ical work on their own, without supervision of any kind. Furthermore, they have their
own council which sets and enforces professional standards, and they have specified
qualifications for entry. For these reasons they can well be regarded as a profession.
Pharmacists
Doubts about the professional status of pharmacists have arisen in the past because
they combine their advisory services with retail selling of a wide variety of goods. In
the 18th century, this was taken to be the distinction between physicians (who were
regarded as professionals) and apothecaries (who were not):
“The physicians could always point to the fact that the apothecaries lived not by charging
for attendance and advice, like proper professional men, but by selling drugs like the
tradesmen they were.”17
But nowadays pharmacists have their own council, which sets and enforces profes-
sional standards, and they are expected to dispense advice as well as medicines. So
they, too, are probably a profession — at least in regard to their activities other than
retail selling.
On the other hand, there remains a doubt about their status, derived from the fact that
they engage in retail selling. However fusty that doubt may be, it does indicate
thathow commercial trade may beis regarded as contrary to the spirit of professional-
ism. One would not think, for example, of street vendors as constituting a profession.
Estate agents
Much the same goes for estate agents, who combine the functions of brokers (i.e.
bringing together buyers and sellers of property) with other, more advisory functions
such as valuing. When an estate agent is are acting as the sole agents for a seller, het-
hey may be required to offer advice on delicate matters such as price and the oppor-
tune time for concluding a sale. In such circumstances the estate agent is they are act-
ing in a fiduciary capacity. But if several estate agents have been engaged to sell a
single property, competitive commercial interests will prevail.
17
Professional Men by W.J. Reader (Weidenfeld & Nicholson, 1966) p. 40, cited in Bennion, Profes-
sional Ethics p. 5.
21
Estate agents now have their own council responsible for setting and enforcing stand-
ards. They are expected to show skill and expertise when exercising their calling, and
their work does require training. Despite the commercial aspect of their work, there-
fore, they probably constitute a profession.
Banking and insurance

Bankers may have constituted a profession when banks were small partnerships or in-
dividuals, akin to lawyers’ firms. But a large commercial banking company cannot be
regarded as a professional entity. Nor can bankers, taken together, be regarded as
constituting a profession because all of them, from the nature of their work, are em-
ployed by commercial banking companies.
Some factors distinguishing professions from other activities
Trade
Commercial or trading activities are often regarded as incompatible with

professionalism. True professionals, purists may say, should shun
such activities: speculative profit-seeking is felt to be incompatible with
single-minded devotion to a professional calling. As R.J. Gerber says in
Lawyers, Courts and Professionalism (1989) Greenwood Press, New
York, p. 11:
“Professions and business have traditionally been contrasted. The pro-

fessional is seen as oriented not to personal profit but to disinterested
tasks like the advancement of knowledge. Professionalism involves lim-
itations on the aggressive pursuit of self-interest. Professionals subor-
dinate their financial interests to the interests of the public, especially to
people who need help.”
The essential difference between professional and trading activities lies

in the functions involved. There is a difference in kind between the sup-
ply of furniture or groceries and the supply of skilled advice on the basis
of trust and confidence. Both activities require skill, but the skills are
different.
Manual effort
There is some basis in the idea that the performance of manual work is
incompatible with a profession. Yet dentists and surgeons perform
such work while barbers (who originally performed surgical work) are
not regarded as professionals.
Many professionals use manual and other physical techniques, so

manual effort is not a disqualification — though if little or no intellectual
effort accompanies, it the activity will rank with trades rather than pro-
fessions.
Employee status
22
The activities of lawyers and doctors (traditionally regarded as profes-
sional) were seldom carried on by people in salaried employment until
the 19th century. Even nowadays, members of a profession in private
practice are often regarded as having a higher status than those in em-
ployment. That is certainly so in the legal profession in modern Zimb-
abwe, where practitioners who are in full-time employment are debarred
by ethical rules from carrying out certain professional functions on be-
half of their employers. And many professionals (e.g. lawyers) em-
ployed by large enterprises such as the Civil Service regard themselves
as employees (public servants) first and professionals second. The in-
terests of their employers come first. In this they are not entirely cor-
rect. Professional people in their position are in some way akin to inde-
pendent contractors: when they carry out professional work at the be-
hest of their employers they are bound by their professional codes of
conduct and are subject to discipline by their professional bodies if they
contravene those codes.
Characteristics of professions
If the following factors are present, the activity will be regarded as a pro-
fession in the strictest sense:
Intellectual basis
An intellectual discipline, capable of formulation on theoretical lines, re-

quiring a good educational background, and tested by examination.
The discipline should generally be one in which the public needs to be

protected against incompetence. The disciplines of law and medicine
are examples of this. Bad advice given by a lawyer or a physician may
have disastrous consequences for the client or patient, so the public
needs to be protected against incompetent or fraudulent practitioners of
those disciplines.
Representative institute
23
One or more organisations representing members of the profession,
particularly those in private practice, and having the function of safe-
guarding and developing the expertise and standards of the profession.
To represent members of the profession, an organisation should consist
wholly or mainly of members elected by the professionals concerned.
The importance of such an organisation cannot be overemphasised, par-

ticularly in regard to the legal profession. According to principle 24 of
the United Nations Basic Principles on the Role of Lawyers:
“Lawyers shall be entitled to form and join self-governing professional

associations to represent their interests, promote their continuing edu-
cation and training and protect their professional integrity. The execut-
ive body of the professional associations shall be elected by its mem-
bers and shall exercise its functions without external interference.”
Professional associations of lawyers are thus created for two main pur-
poses: to safeguard the professional interests of lawyers and to protect
and strengthen the independence of the legal profession. To carry out
either of these purposes, a professional association must be free from
governmental control. To carry out the second purpose, an association
must sometimes engage in political activity, though it should not in-
dulge in partisan politics.18
Register of members
A roll or register identifying members of the profession. Persons not on

the roll or register are not regarded as being professionals.
Private practice
A foundation in private practice, so that the standards of the profession

derive from meeting the needs of individual clients on a person-to-per-
son basis, with remuneration in the form of fees rather than salary.
Advisory functions
18
24
For a consultative profession such as the law and medicine, the mem-
bers must perform advisory functions, often coupled with executive
functions in carrying out what has been advised. For example, lawyers
advise their clients what course of action to take and, if the clients agree
to adopt that course, will then take steps such as instituting legal pro-
ceedings in order to give effect to their clients’ decision.
In some professions the advisory function is less prominent, though it is

always there. Architects, for example, perform their main function by
preparing plans of buildings though they also have to advise their cli-
ents on matters regarding the construction of those buildings.
Personal responsibility
Where a professional person gives advice, he accepts full personal re-

sponsibility for that advice. The responsibility is owed primarily to the
client, but also to the profession and to society at large. He does not
guarantee the accuracy of his advice, but he does impliedly hold himself
out as having the average degree of competence associated with the
proper discharge of the duties of his profession, and if he shows less
than that competence he may be charged by his representative institute
for misconduct.
This is one of the reasons why legal practitioners who practise in asso-
ciation must do so in partnership rather than through the medium of lim-
ited liability companies.19 Partners are vicariously liable for the conduct
of their fellow-partners20, so if one legal practitioner in a partnership acts
wrongfully in the course of the partnership business, all the other part-
ners are liable to the full extent of their estates. If legal practitioners are
associated together in a limited liability company, on the other hand, the
company will be vicariously liable for wrongdoing on the part of any one
of them, whether in delict or contract, and the practitioner who commit-
ted the wrongful act will also be liable in delict as the principal wrong-
doer. If, however, the wrongdoing amounts to breach of contract rather
than delict then even that practitioner will not be liable if the injured cli-
ent contracted with the company rather than with the practitioner per-
sonally — as will usually be the case. In no case will the other practi-
tioners be liable except as contributories in the event of the company
being wound up.
Tradition of service
19
This rule is not stated expressly but through section 23(1)(f) of the Legal Practitioners Act [Chapter
27:07], which makes it unprofessional conduct for a practitioner to enable an unregistered person —
for example, a company — to charge fees for professional work that is reserved for legal practitioners.
Section 23(1)(o), moreover, prohibits arrangements which allow an unregistered person such as a com -
pany to participate in fees reserved solely to a legal practitioner.
20
Lindsay & Ors v Stofberg NO 1988 (2) SA 462 (C) at 467F.
An outlook which is essentially objective and disinterested, where the
motive of making money is subordinated to serving the client and the
public interest.
In the case of the legal profession, this is particularly important. As

stated by the International Commission of Jurists in International Prin-
ciples on the Independence and Accountability of Judges, Lawyers and
Prosecutors (ICJ Practitioners’ Guide Series No. 1, 2004) at p. 65:
“Lawyers are, with judges and prosecutors, one of the pillars upon
which human rights and the rule of law rest. Lawyers play an essential
role in protecting human rights and in guaranteeing that the right to a
fair trial is respected by providing accused persons with a proper de-
fence in court.”
Legal practitioners who are concerned solely with making money will
disregard clients who cannot pay for their services, and so will abandon
their role in upholding justice. A mercenary lawyer, like a mercenary
priest, betrays his calling.
The reality, of course, is somewhat different. An American judge, R.J.

Gerber, in his book Lawyers, Courts and Professionalism (1989) Green-
wood Press, New York, compared lawyers to litigious flies buzzing
round the face of Justice, and lamented that as they line their own pock-
ets they often empty those of their clients. At page 12 of his book he
said:
“As the legal profession’s competitive ethos and partisan loyalties grow
more pronounced, the pretence that the bar remains above mercantilism
becomes more incredible. … The true picture of the aspiring lawyer is
not as high-minded as the bar would like. The aspiring lawyer’s traits
are often narrow, the selection process misdirected, and career goals as
narrow as a fat pocketbook.”
The same may be said of the profession in Zimbabwe.
Legal practitioners have to make a living, and they cannot be expected

to live on ideals alone. Somehow they have to strike a balance between
their self-interest and the public good.
Code of conduct
There must be a code of professional ethics, laid down and enforced by
one or more professional institutes. In the case of lawyers, principle 26
of the United Nations Basic Principles on the Role of Lawyers states:
“Codes of professional conduct for lawyers shall be established by the

legal profession through its appropriate organs, or by legislation, in ac-
cordance with national law and custom and recognised international
standards and norms.”
Any such code of professional conduct must impose higher standards

on members of the profession than those imposed by the ordinary law.
If codes obliged professionals to do no more than ordinary citizens are
required to do in the same circumstances, then the codes would be use-
less. A code that prohibited lawyers from stealing from their clients or
doctors from murdering their patients, for example, would be pointless
because no one is allowed to steal or to commit murder.
It is important that a code of conduct, where there is a written one,

should be drawn up by the profession itself or, if it is embodied in legis-
lation, that the legislation should be drafted with input from the profes-
sional association.21
Conclusion
21
To sum up22, a profession may be defined as a self-regulating body of
people whose members:
are recognised as having some special skill or learning in some field of

activity in which the public needs to be protected against incompetence;
are identifiable by reference to a register or record;
belong to, or are entitled to belong to23, a representative organisation

which sets and enforces professional standards;
usually perform advisory functions and accept personal responsibility

for their advice;
hold themselves out as willing to serve the public;
submit to a set of rules which impose higher standards of conduct than

those requires by law of the ordinary citizen.
Professional ethics
The definition of professional ethics is given in the previous discussion: it is the code
of practice or the set of rules, written or unwritten, which governs the conduct of pro-
fessional people as such. The code regulates not only how they practise their profes-
sion but may regulate their conduct in other spheres as well.
Characteristics of codes of professional ethics

Codes are typically drawn up and administered by bodies consisting wholly or mainly
of members of the profession in question. This is of crucial importance, and explains
rules designed to preserve harmony within the profession, such as those forbidding
undercutting, poaching of clients and touting, and the practice of not charging a fel-
low-practitioner for professional services, and rules encouraging members to submit
disputes to arbitration by the professional body.
Codes represent the judgment of the profession on how members should conduct
themselves, and many of their rules are unknown to the general law.
Codes bind members of the profession even if they are not embodied in legislation be-
cause, by voluntarily joining the profession, members have agreed to be governed by
them. Where they are not enforced by legislation, therefore, they are binding through
contract.
Nature of rules in code of professional ethics

Analysis of the rules of professional ethics in a typical code shows five different as-
pects of consultant professionalism:
1. Rules arising from the fact that expertise is involved
22
This definition is adapted from A Handbook of Professional Conduct for Solicitors by F. Silverman
(Butterworths, 1989).
23
Registered legal practitioners have the right to join the Law Society of Zimbabwe, but do not have to
belong to it: section 52 of the Legal Practitioners Act [Chapter 27:07].
28
(a) rules regulating admission, requiring minimum qualifications for entry to the pro-
fession;
(b) rules ensuring continued competence after admission, e.g. for continued profes-
sional education;
(c) rules demarcating boundaries between different professions.
(d) Rules prohibiting members of the profession from working or sharing profits with
non-members.
2. Rules protecting relationships with clients
(a) rules requiring a personal relationship between practitioner and client, e.g. prohib-
ition of practice by limited companies24;
(b) rules imposing strict discretion and confidence as to client’s affairs;
(c) rules requiring courtesy and dignity to be displayed at all times;
(d) rules preserving a client’s freedom to choose a practitioner and (subject to the
public interest) allowing a practitioner to reject a client.
(e) rules requiring independence and impartiality: practitioners must avoid any posi-
tion where his own interests may conceivably conflict with those of his client;
3. Rules arising from concern with clients’ property
(a) rules requiring a practitioner’s integrity and honesty to be vouched for before ad-
mission to the profession;
(b) rules requiring separate bank accounts (trust funds) to be maintained for clients’
funds, and payments to be made to compensation funds;
(c) rules requiring practitioners to take reasonable care to protect clients’ money, se-
curities and assets;25
(d) rules requiring responsibility for advice: the advice must be that of the practi-
tioner himself, and he must take full responsibility for it. He must back his advice
with his whole personal estate, without limitation of liability.
4. Rules designed to preserve civil relationships with fellow-professionals
(a) the standing and repute of the profession must not be prejudiced;
(b) fellow-practitioners must be treated with courtesy;
(c) poaching of clients is discouraged;
(d) touting and undue advertising are forbidden or discouraged;
(e) undercutting of fees is restricted.
5. Rules setting out the relationship between members of the profession and their
representative institute or governing body
Rules requiring practitioners:
24
In Zimbabwe legal practitioners are not allowed to conduct their practice through the medium of
companies. In South Africa they are allowed to do so by sec 23(1)(a) of the Attorneys Act 53 of 1979,
so long as the company’s memorandum provides that all present and past directors are liable jointly and
severally with the company for the debts and liabilities of the company incurred while they were in of -
fice.
25
See para 3(9) of the Schedule to the Legal Practitioners (Code of Conduct) By-laws, 2018 (S.I. 37 of
2018).
29
(a) to keep the institute informed of any changes in their practice;
(b) to obtain practising certificates from the institute;
(c) to respond to, and co-operate with, the institute in disciplinary inquiries;
(d) to inform the institute of suspected misconduct on the part of other practitioners.
For the legal profession, we may add an additional category of rules:
6. Rules dealing with the relationship between practitioners and the courts
(a) rules requiring practitioners to show respect and courtesy towards courts;
(b) rules prohibiting practitioners from deceiving or misleading the courts.
There is some overlap between these categories, but categories 1 to 3 safeguard the
standard of service offered to the public, and ensure the six essential qualities of the
consultant professional:
 competence
 humanity
 discretion
 impartiality
 responsibility
 integrity.
Category 4 is concerned with relationships within the profession, and category 5 with
relations between members of the profession and their representative institute.
The Zimbabwean code

Until recently there was no written code of conduct for legal practitioners in Zimb-
abwe. Finally in March 2018 the Law Society published a code: the Legal Practition-
ers (Code of Conduct) By-laws, 2018 (S.I. 37 of 2018).26
Before then practitioners had to follow some written rules of conduct scattered
throughout the Legal Practitioners Act [Chapter 27:07] and the subsidiary legislation
made under that Act. But for the most part practitioners had to follow unwritten rules.
These unwritten rules of conduct were originally adopted from the rules of the South
African and English Bar and Side-bar, and have long been observed by the profession
in Zimbabwe. The binding nature of these unwritten rules probably stems from their
tacit acceptance by the general body of practitioners, reinforced by the Law Society
through sections 23(2)(b) and 53(c) of the Legal Practitioners Act.27
The lack of a written code of conduct made it difficult for aspiring and newly-quali-
fied practitioners to find out how they should behave in their new profession. Books
on legal ethics are not readily available in Zimbabwe, and it took a diligent search to
find the rules of conduct that are set out in the Legal Practitioners Act. Despite the
difficulty, even newly-qualified practitioners were expected to know the rules and to
abide by them.28
26
The Schedule to the S.I. (the operative part of the code) is set out in Appendix 4.
27
Section 23(2)(b) impliedly gives the Council of the Society, as well as the Disciplinary Tribunal and
the High Court, power to determine whether or not conduct should be regarded as unprofessional, dis-
honourable or unworthy conduct on the part of a legal practitioner.
28
Compare Law Society, OFS v Schoeman 1977 (4) SA 588 (O) at 594A.
30
It is doubtful if the new code of ethics will help legal practitioners very much. The
code is certainly not user-friendly. Its operative part consists of a single section di-
vided into 54 subsections, without any headings to indicate their subject-matter. And
some of the subsections are excessively brief: for example, the code declares it un-
professional, dishonourable or unworthy conduct to fail to observe “the principle of
confidentiality”29 without indicating what the principle is, what it covers and whether
there are any limits to it. Other subsections are very vague: for example, one prohib-
its practitioners from “failing or neglecting to act with integrity” in their professional
or private capacities.30
Furthermore, the code leaves some important questions unanswered: for example,
when can legal practitioners refuse to accept persons as clients. Before Independence,
the profession was divided into advocates, who specialised in litigation and had the
exclusive right to appear in the superior courts, and attorneys who operated much as
legal practitioners do today, though they could not appear in the High Court. Advoc-
ates were bound to take on any brief in a court and field in which they professed to
practise, unless there were special circumstances justifying a refusal. 31 Attorneys, on
the other hand, were largely free to accept new clients or refuse them. It is not clear
whether the advocates’ rule – that they must accept all work – applies to legal practi -
tioners who specialise in litigation. If it does not, the role of the legal profession in
defending human rights will be compromised because, in performing that role, the
profession must ensure that everyone who is charged with a criminal offence and who
seeks legal representation gets it if they can afford the lawyer’s fee.32
More broadly, there may be drawbacks to a written code of ethics for the legal profes-
sion. Many lawyers spend at least part of their working life trying to find ways for
their clients to circumvent or get round rules, whether the rules are contained in stat-
utes or contracts. Inevitably some lawyers will try to do the same with ethical rules
that apply to themselves. Lawyers are trained to examine documents carefully and to
construe statutes and contracts strictly, and they are likely to apply the same rules of
construction to written ethical rules. In other words, they are likely to abide by the
letter of the rules rather than their spirit. More generally, there is a danger that a writ-
ten compilation of rules setting out what members of the legal profession may and
may not do will relieve lawyers of the obligation — which all truly ethical people
have — of deciding for themselves whether their conduct is morally right. It is all too
easy for a legal practitioner to justify what he or she is doing by saying: “It’s ethical”
(meaning it is permitted by the ethics of the legal profession) without going further
and asking: “But is it morally right?”
29
Subsection (44) of section 3 of the code.
30
Subsection (21) of section 3 of the code.
31
See rule VI(a) of the Bar Association, which is still applicable to members of the Association.
32
This qualification largely nullifies the right to legal representation, of course, because few people in
Zimbabwe can afford even modest fees charged by lawyers.
31
2. NATURE AND STRUCTURE OF THE PROFESSION
A privileged profession
Legal practitioners have the right to practise law (sec 8 of the Legal Practitioners Act
[Chapter 27:07]) and the right is an exclusive one because, except in limited circum-
stances, only registered legal practitioners may perform certain acts that are essential
to the practice of law (secs 9 & 10 of the Act).
Section 8: legal practitioners with practising certificates may practise the profession
of law, i.e. they have right of audience in courts which permit legal representation;
notaries public may attest and authenticate documents as notaries; and conveyancers
may prepare documents for registration in a Deeds Registry.
Section 9: No one other than a registered legal practitioner (or notary public or con-
veyancer) may do certain things:
 practise as a legal practitioner (or notary public or conveyancer) or hold him-
self out as such;
 issue summons or process or institute or defend proceedings in court in an-
other person’s name (but directors or employees of companies, or partners,
may do so on behalf of their companies or partnerships if the rules of the
court concerned permit them to do so1);
 for reward, instruct or help anyone else to issue summons or process or insti-
tute or defend proceedings in court;
 appear in the capacity of a legal practitioner on behalf of any other person;2
 only registered notaries public may notarially execute, attest or authenticate
documents;
 only registered conveyancers may for reward prepare documents for registra-
tion in a Deeds Registry.
Section 10: Legal practitioners have a virtual monopoly in the preparation of certain
documents: Only a legal practitioner may, for reward, prepare the following docu-
ments:
 a will or codicil;
 legal process in civil or criminal proceedings;
 a contract relating to the creation or dissolution of a partnership;
 a memorandum or articles of association of a company (this does not apply to
chartered accountants or to members of the Chartered Institute of Secretar-
ies);
1
See the proviso to section 9(2) of the Legal Practitioners Act [Chapter 27:07] as explained in Lees Im-
port & Export (Pvt) Ltd v Chikaka 1999 (2) ZLR 36 (S) at 40-41.
2
The proviso to sec 9(2) of the Act does not itself permit directors, officers and partners to represent
their organisations in court: it merely preserves whatever rights they have under other legislation, e.g.
rules of court. But the court may permit a person who is the alter ego of a company (i.e. the person
who is in sole control of a company) to represent the company in legal proceedings: Lees Import & Ex-
port (Pvt) Ltd v Chikaka 1999 (2) ZLR 36 (S), explained in Comaf Holdings (Pvt) Ltd v General Chem-
icals (Pvt) Ltd & Anor 1999 (2) ZLR 160 (H). And officials of trade unions are entitled to represent
their members in proceedings before the Labour Court: section 92 of the Labour Act [Chapter 28:01].
a contract for the acquisition, disposal, exchange or lease, for five years or
more, of immovable property (this does not apply to auctioneers or estate
agents or to officials of local authorities, Agribank or the National Railways
of Zimbabwe).
These documents are not, however, invalidated merely because they have been drawn
up by an unqualified person.3
Civil servants can draw up any of these documents, for reward or otherwise, and so
can trustees in insolvency, executors, liquidators and judicial managers acting in the
course of their duties.4
Rationale for giving lawyers a monopoly

The rationale for giving legal practitioners a monopoly over the practice of law is to
protect the public. The work that is reserved for members of the profession is re-
garded as so important that only trained people can perform it. A will that is badly
drawn, for example, will prejudice the testator’s intended beneficiaries after the test-
ator’s death, when defects in the will cannot be remedied.
Is the monopoly desirable? There are points for and against:
In favour of the monopoly:
 The public is protected through the supervision exercised over practitioners
by the courts and the Law Society. If non-lawyers were able to perform re-
served legal work, this supervision would not be so effective.
 Strict standards of training ensure that practitioners are reasonably competent
to perform the reserved work.
 If non-professionals were allowed to do reserved work, they might perform
only lucrative services and leave registered practitioners to provide the rest.
Practitioners are supposed to adopt a “swings and roundabouts” approach,
under which high-cost transactions are subsidised by others where the service
can be provided cheaply. In other words, practitioners are supposed to
provide a balanced, all-round service to their clients.
On the other hand:
 Many people in Zimbabwe cannot afford the services of lawyers. There is a
case for paralegals to provide simple services and advice.
 The boundaries between professions change: the boundaries between archi-
tects, surveyors and town planners, for example, has changed in the past 100
years. It is clear from the Act that accountants and chartered secretaries are
performing some of the work traditionally done by lawyers. A statutory
monopoly may not allow changes to take place in accordance with changing
economic and social conditions.
Quid pro quo: competence and honesty

In return for this monopoly, legal practitioners are expected to be competent and to
observe the highest standard of conduct and morals.
3
Section 10(3) of the Legal Practitioners Act [Chapter 27:07].
4
Section 10(4) of the Legal Practitioners Act [Chapter 27:07]. The section also allows people other
than legal practitioners to copy and translate the documents.
33
As to competence, legal practitioners must display the same degree of competence as
is currently shown by ordinary members of the profession. This will be covered in
more detail later.
As to integrity, honesty and morality, the Legal Practitioners (Code of Conduct) By-
laws, 2018, state that:
“Failing or neglecting to act with integrity, whether in the course of his or her practice or
otherwise”5
amounts to unprofessional, dishonourable or unworthy conduct on the part of a legal
practitioner. This is not a very enlightening statement of the duty, but it does serve to
emphasise that practitioners are expected to show integrity in their private as well as
their professional lives.
Tthe golden rule, stated by Mr E.A.L. Lewis in his book Legal Ethics (1982) (Juta &
Co) page 8, is:
“A lawyer must avoid all conduct which, if known, could damage his or her reputa-
tion as an honourable lawyer and honourable citizen.”6
The Model Code of Professional Conduct drawn up by the Federation of Law Societ-
ies of Canadian Bar Association’s Code of Professional Conducta states the same
principle as follows7:
“Integrity is the fundamental quality of any person who seeks to practise as a member of
the legal profession. If thea client is in any doubt about thehis or her lawyer’s trustworthi-
ness, the essential element in the true lawyer-client relationship will be missing. If per-
sonal integrity is lacking the lawyer’s usefulness to the client and reputation within the
profession will be destroyed regardless of how competent the lawyer may be.”
Put another way, lawyers must always act honourably, both in their professional and
private life, so as to protect their good reputation. A lawyer’s reputation is his or her
greatest asset. Lawyers must not just avoid being found out: they must eschew all
dishonourable conduct and must not engage in it under any circumstances. A lawyer
who engages in improper conduct is dishonourable, whether or not anyone else knows
about that conduct.
As indicated in the preceding paragraphs, the duty to act honourably extends to the
practitioner’s extra-professional life. Although some distinction must be drawn
between a practitioner’s extra-professional activities and his or her conduct within the
profession, the extra-professional activities can be regarded as shedding light on the
practitioner’s character and integrity, and may be the subject of disciplinary action if
they show up the practitioner as morally unworthy or are such as to bring the profes-
sion into disrepute.8
Excursus: meaning of “honesty”, “integrity”, etc.
5
Paragraph 3(21) of the Schedule to S.I. 37 of 2018. The Schedule is set out in Appendix 4.
6
This was cited in Nyoni v Elmissing & Anor 2009 (1) ZLR 251 (H).
7
Commentary [1] to Guiding Principle No. 2.1-1 of , stated in Chapter I of the Code. The Code can be
found online at https://flsc.ca/wp-content/uploads/2018/03/Model-Code-as-amended-March-2017-
Final.pdf
http://www.cba.org/Publications-Resources/Resources/Ethics-and-Professional-Responsibility/Code-
of-Conduct/Code-of-Professional-Conduct-(2009).
8
Cf Society of Advocates, Natal v Z 1988 (3) SA 443 (N). See also Guiding Principle 3 stated in
Chapter I of the Canadian Bar Association’s Code of Professional Conduct.
34
It may be useful to pause here and look into the meaning of words such as “honesty”,
“integrity”, “probity” and “trustworthiness” which the courts use to describe qualities
that legal practitioners must possess.
Like so many words in the English language they each have several different, some-
times overlapping, meanings so it is not easy to pin down precisely what the words
mean in the context of professional ethics. What follows is no more than a rough at-
tempt to explain the words and the distinctions between them:9
Candidness: Essentially, this means a willingness to say what one thinks, but more
specifically it implies a fundamental honesty and fairness that make evasion im-
possible and suggest a refusal to dodge an issue or to be governed by bias or fear.
Honesty. This is the most basic attribute that legal practitioners must possess. It im-
plies a refusal to lie, steal, defraud or deceive.
Honour: Honour adds to honesty the quality of high-mindedness or a sense of allegi-
ance to the standards of one’s profession and, more generally, a sense of allegiance to
what is right.
Integrity: This implies that one is incorruptible or incapable of being false to a trust
or a responsibility or to one’s own high standards. It means soundness of moral prin-
ciple, the character of uncorrupted virtue, uprightness, honesty and sincerity.10
Probity: Probity stresses proved honesty or integrity; in other words, that the person
has proved himself or herself to be a person of integrity.
Trustworthiness: A person is trustworthy if he or she shows qualities that merit com-
plete confidence or trust in his or her integrity, truthfulness, discretion or reliability.
Practising certificates
Any legal practitioner who practises law — that is to say, any practitioner who carries
out any “reserved work” — must have a practising certificate, either full or limited, is-
sued in terms of Part IX of the Act.
A full practising certificate allows its holder to practise fully as a legal practitioner
(and, if he or she has the necessary qualifications, as a notary public and a conveyan-
cer as well). A limited practising certificate is issued subject to conditions (sec 77(1)
of the Act) and allows practice within the limits set by those conditions. Practitioners
who practise with limited certificates do not have to contribute to the Law Society
Compensation Fund. Limited practising certificates are issued, for example, to mem-
bers of the de facto Bar, who practise as advocates and do not accept clients directly
but only through other legal practitioners — that is to say, they are “briefed” by other
legal practitioners to perform legal work for their clients. Advocates do not take
money directly from clients and so do not have to open trust funds: hence they do not
contribute to the Law Society Compensation Fund.
Practising certificates are issued by the Law Society, which has an exclusive right to
issue them; if it does so irregularly the proper procedure for an aggrieved party is to
take its decision on review.11 Certificates must be renewed annually.
General qualities legal practitioners are expected to possess

9
I have relied on Merriam Webster’s Dictionary of Synonyms (Springfield, Massachusetts 1984) and A
New English Dictionary (the first edition of the Oxford English Dictionary).
10
Behrman v Law Society, Transvaal 1980 (4) SA 4 (T) at 9, quoting the Shorter Oxford English Dic-
tionary.
11
Sahawi International (Pvt) Ltd & Anor v Bredenkamp & Anor 2010 (1) ZLR 102 (H)
35
Legal practitioners must be truthful, honest, candid and fair in all their dealings. 12
This is an all-embracing and inflexible rule.
When considering applications for the registration of practitioners, the High Court
must consider whether the applicant is a fit and proper person to be registered. This
means that an applicant must be a person of honesty and reliability. 13 In Hayes v the
Bar Council 1981 ZLR 183 (A) at 199–200 Fieldsend CJ said:
“So far as possible the court must be satisfied that an applicant will be able with honesty
and balance to perform the duties of an advocate to the advantage of those he is called
upon to represent. … In addition, the profession of advocate and attorney requires the
utmost good faith from practitioners and from all aspirant practitioners … An advocate,
whose main duty it will be to represent his clients before the courts, must be a person in
whose reliability and integrity the court must be able to place complete trust, it always
being remembered that an advocate owes a duty at least as much to the court as to his
client. And the court must be satisfied that he will not by his behaviour do anything to
bring the courts or the profession into disrepute.”
Broadly speaking, legal practitioners who are employed by non-lawyers (for example,
in-house lawyers employed by companies and financial institutions, and lawyers em-
ployed in the Civil Service) are bound by the same ethical duties as practitioners in
private practice, to the extent that they engage in legal work for their employers. 14
Lawyers have primary ethical duties towards:
 The State
 The court
 Their clients
 Other legal practitioners and to the profession as a whole.
We shall deal with these duties in turn.
12
E.A.L. Lewis Legal Ethics (1982, Juta & Co, South Africa) page 11.
13
In re Chikweche 1995 (1) ZLR 235 (S) at 244E.
14
Cf Principle 4.01 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London. The principle states: “A solicitor employed by a lay-employer is subject to the same
principles of professional conduct as a solicitor in private practice.”
36
3. DUTIES OWED BY LEGAL PRACTITIONERS TO THE STATE
A legal practitioner is an officer of the court and has a general duty to sustain the law.
On admission, he or she is required to swear an oath of loyalty to Zimbabwe.1
The duty to sustain the law entails obeying the law and advising clients to obey the
law. It does not extend to reporting clients to the authorities if they breach the law or
seek advice on how to breach the law. No one has an obligation to report the commis-
sion of crimes, not even legal practitioners.
Political dissent
This is always a difficult issue: to what extent may a legal practitioner defy unjust
laws?
A legal practitioner has a positive duty to sustain the law, a duty to “further the ad-
ministration of justice to the best of his ability” (Society of Advocates of SA (Wit-
watersrand Division) v Fischer 1966 (1) SA 133 (T) at 137C-D. But in Incorporated
Law Society, Transvaal v Mandela 1954 (3) SA 102 (T), Mr Mandela’s conduct in ad-
dressing a meeting and urging his listeners to bring about the repeal of the pass laws
by defiance and industrial action, was found not to be dishonourable even though, as a
result of that conduct, he had been convicted of contravening the Suppression of
Communism Act and sentenced to nine months in prison. The court said:
“While I think that in certain circumstances an attorney who is privileged to practise in the
courts may be expected to observe the laws more strictly than other persons, the fact that
an attorney has deliberately disobeyed the law does not necessarily disqualify him from
practising his profession or justify the Court in removing his name from the roll. We are
not concerned in this case with misconduct committed by an attorney in his professional
capacity; the offence committed by the respondent had nothing to do with his practice as
an attorney.” (page 107C)
“The sole question the court has to decide is whether the facts which have been put before
us and on which the respondent was convicted show him to be of such character that he is
not worthy to remain in the ranks of an honourable profession. To that question there can
in my opinion, be only one answer. Nothing has been put before us which suggests in the
slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful,
or dishonourable kind; nothing that he has done reflects upon his character or shows him
to be unworthy to remain in the ranks of an honourable profession.” (page 108C-D)
On the other hand, in Natal Law Society v Maqubela 1986 (3) SA 849 (N), the re-
spondent attorney had been convicted of high treason, in that he had been part of a
conspiracy that brought about explosions which caused considerable damage to prop-
erty and injured innocent people. His conduct, the court found, justified his being
struck off despite the fact that it was politically motivated. See also Incorporated Law
Society Natal v Hassim 1978 (2) SA 285 (N), where a conviction for involvement in
recruiting people to undergo political and military training in order to overthrow the
government was, similarly, held to be personally disgraceful justifying a practitioner’s
being struck off. The offence, the court said, was equivalent to high treason.
In Zimbabwe, given the Draconian nature of our security laws and the very wide
definition of treason in the Criminal Law Code, one can say with fair certainty that a
conviction for treason would not necessarily justify a legal practitioner’s being struck
off or de-registered. The penalty, if any, to be imposed upon such a practitioner
would depend on the nature of his or her conduct.
1
Section 86 of the Legal Practitioners Act [Chapter 27:07].
37
Non-political illegality
Generally, legal practitioners must not be involved in non-political illegality, criminal
or civil, either in their practice or in their private life, nor may they counsel others to
engage in it. For example, a legal practitioner should not engage in a scheme of tax
evasion (as opposed to tax avoidance) nor encourage a client to do so.
Legal practitioners must advise their clients against infringements of the law and must
not assist clients to infringe it. Legal practitioners must not, for example, advise their
clients to disobey court orders.2
A conviction for any offence of which the ingredients are dishonesty or moral unwor-
thiness is almost certain to invite some disciplinary action on the part of the Law Soci-
ety. For example, advising or assisting a client to bribe an official would result in a
practitioner’s being struck off or suspended, as would a conviction for rape or inde-
cent assault. On the other hand, motoring offences are usually ignored by the Law
Society.3 But a deliberate or reckless repetition of an offence otherwise untainted
with dishonesty or unworthiness may well be regarded as supplying sufficient taint to
bring it to the attention of the Law Society. In other words, persistent or repeated
convictions for even a relatively venial offence may amount to dishonourable or un-
worthy conduct.
Generally, the practice of courts has been to treat the conviction of a legal practitioner
for a criminal offence, whether in his or her capacity as a legal practitioner or not, as
prima facie evidence that the practitioner is unfit to remain registered, 4 though this ap-
plies only to offences of a kind which cast doubt on the practitioner’s character or in-
tegrity.5
Proof of a criminal conviction is regarded as prima facie evidence that the legal prac-
titioner has committed the offence concerned, 6 though it is open to the practitioner to
try to persuade the court that he or she should not have been convicted.7
Political dissent
This is always a difficult issue: to what extent may a legal practitioner defy unjust
laws?
A legal practitioner has a positive duty to sustain the law, a duty to “further the ad-
ministration of justice to the best of his ability” (Society of Advocates of SA (Wit-
watersrand Division) v Fischer 1966 (1) SA 133 (T) at 137C-D. But in Incorporated
Law Society, Transvaal v Mandela 1954 (3) SA 102 (T), Mr Mandela’s conduct in ad-
dressing a meeting and urging his listeners to bring about the repeal of the pass laws
by defiance and industrial action, was found not to be dishonourable even though, as a
result of that conduct, he had been convicted of contravening the Suppression of
Communism Act and sentenced to nine months in prison. The court said:
“While I think that in certain circumstances an attorney who is privileged to practise in the
courts may be expected to observe the laws more strictly than other persons, the fact that
2
Nyoni v Elmissing & Anor 2009 (1) ZLR 251 (H).
3
Aitken v Law Society of Zimbabwe 1995 (2) ZLR 383 (S) at 389E.
4
Solomon v Law Society of the Cape of Good Hope 1934 AD 401 at 412.
5
Incorporated Law Society, Natal v Roux 1972 (3) SA 146 (N) at 149A; Chirambasukwa v Law Soci-
ety of Zimbabwe 1995 (2) ZLR 188 (S).
6
Mafara v Law Society of Zimbabwe 1987 (2) ZLR 293 (S) at 296 E-F.
7
Incorporated Law Society, Natal v Roux (supra) at 148F.
38
an attorney has deliberately disobeyed the law does not necessarily disqualify him from
practising his profession or justify the Court in removing his name from the roll. We are
not concerned in this case with misconduct committed by an attorney in his professional
capacity; the offence committed by the respondent had nothing to do with his practice as
an attorney.” (page 107C)
“The sole question the court has to decide is whether the facts which have been put before
us and on which the respondent was convicted show him to be of such character that he is
not worthy to remain in the ranks of an honourable profession. To that question there can
in my opinion, be only one answer. Nothing has been put before us which suggests in the
slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful,
or dishonourable kind; nothing that he has done reflects upon his character or shows him
to be unworthy to remain in the ranks of an honourable profession.” (page 108C-D)
On the other hand, in Natal Law Society v Maqubela 1986 (3) SA 849 (N), the re-
spondent attorney had been convicted of high treason, in that he had been part of a
conspiracy that brought about explosions which caused considerable damage to prop-
erty and injured innocent people. His conduct, the court found, justified his being
struck off despite the fact that it was politically motivated. See also Incorporated Law
Society Natal v Hassim 1978 (2) SA 285 (N), where a conviction for involvement in
recruiting people to undergo political and military training in order to overthrow the
government was, similarly, held to be personally disgraceful justifying a practitioner’s
being struck off. The offence, the court said, was equivalent to high treason.
In Zimbabwe, given the Draconian nature of our security laws and the very wide
definition of treason in the Criminal Law Code, one can say with fair certainty that a
conviction for treason would not necessarily justify a legal practitioner’s being struck
off or de-registered. The penalty, if any, to be imposed upon such a practitioner
would depend on the nature of his or her conduct.
39
4. DUTY TO THE COURTS
Legal practitioners are officers of the court and have duties towards the courts in
which they appear.1 They are not “mere agents for their clients”, but have duties to-
wards the judiciary to ensure the efficient and fair administration of justice.
According to Rule 6 of the IBA International Code of Ethics:
“6. Lawyers shall always maintain due respect towards the Court. Lawyers shall without
fear defend the interests of their clients and without regard to any unpleasant con-
sequences to themselves or to any other person. Lawyers shall never knowingly give to
the Court incorrect information or advice which is to their knowledge contrary to the
law.”
And the Canadian Bar Association’sModel Code of Professional Conduct states2, as
examples of prohibited conduct, that a lawyer must not:
“ (e) knowingly attempt to deceive or participate in the deception of a tribunal or influ -
ence the course of justice by offering false evidence, misstating facts or law,
presenting or relying upon a false or deceptive affidavit, suppressing what ought to
be disclosed or otherwise assisting in any fraud, crime or illegal conduct;
(f) knowingly misstate the contents of a document, the testimony of a witness, the
substance of an argument or the provisions of a statute or like authority; 3
(g) knowingly assert as true a fact when its truth cannot reasonably be supported by
the evidence or as a matter of which notice may be taken by the tribunal;
(gh) make suggestions to a witness recklessly or that he or she knowsknowing them to
be false …;
(ih) deliberately refrain from informing the tribunal of any pertinent adversebinding
authority that the lawyer considers to be directly ion point and that has not been
mentioned by an opponent;
(j) improperly dissuade a witness from giving evidence or advise a witness to be ab-
sent;…
(jk) knowingly permit a witness or a party to be presented in a false or misleading way
or to impersonate another”.
According to Lawton J in Rondel v W [1966] 1 All ER 467 (QB) at 479:
“An advocate [meaning a pleader in court] … is helping the judge to do justice. He is
most helpful when he is putting his client’s case as well as it can be put, but he must
never forget that he owes a duty to the court as well as to his client. Many advocates, in
the course of their professional lives, have to face the embarrassment of bringing to the
attention of the court authorities of which their opponents have been ignorant and which
they know will lose the case for the client who has paid their fees … This is but one ex-
ample of counsel’s duty to the court … He may not provide or devise a line of defence
for a client … He may not assert that which he knows to be a lie. He may not connive
at, much less attempt to substantiate, a fraud … He must not be a party to any deception
of the court. In a criminal case, if some irregularity comes to his knowledge before ver-
dict is given, he must bring it to the attention of the court at the earliest possible mo-
1
It is not clear what precisely is meant by “officer of the court” in this sense. In Gilbert v Bekker &
Anor 1984 (3) SA 774 (W) at 780 & 781 it was held to be a nebulous concept at best, a “vague term
without legal content”. Coetzee J said: “Judges shrink from exact definition of who might in the
widest sense be called officers of the Court. … This does not surprise me. Canning fog is not easy.”
2
In Chapter IX, Guiding Principle 5.1-2.
3
This was quoted in Mashonganyika & Anor v Pfute & Ors 2014 (2) ZLR 382 (H) at 389G.
40
ment and must not hold it in reserve with a view to taking it later as a point before the
[appeal court] when it would be too late to remedy the mistake.”
Respect for the courts

Legal practitioners must respect the courts in which they appear, but respect does not
mean spineless subservience. The client’s interests must be upheld. Practitioners
must not allow judicial officers to browbeat them and must be prepared to fight
against what seems to be unfair treatment.4 But any such fight must be conducted
with proper respect and decorum. Above all, practitioners must keep themselves un-
der control. However obtuse or obstinate a judicial officer may seem to be, practition-
ers must not lose their temper, for if they do they are liable to lose their case and their
client, and may even be punished for contempt of court.
A legal practitioner should avoid criticism of the bench, save in a proper manner. 5
Baseless allegations of bias on the part of a judicial officer are improper, 6 as are un-
substantiated allegations of judicial impropriety.7
Applications for the recusal of a judicial officer must be made respectfully and tact-
fully.8 The judicial officer should where possible be informed of the application and
the grounds for it before the application is made. A practitioner should not seek a ju-
dicial officer’s recusal solely because a client has instructed him or her to do so; be-
fore making the application the practitioner must be satisfied that there are proper
grounds for it. Furthermore, a practitioner should make an application for recusal
upon becoming aware of the grounds justifying the application; it is not in the in-
terests of justice to permit a litigant, who has knowledge of all the facts upon which
he or she may apply for recusal, to wait until the judicial officer has delivered an ad-
verse judgment before raising the issue of recusal.9
One way in which legal practitioners show respect for the courts is by behaving dec-
orously and dressing suitably.
Communications with judicial officers

Legal practitioners should not speak privately to judicial officers about proceedings
involving their clients. It is a cardinal rule that whenever a legal practitioner wants to
4
For a case in which a legal practitioner, who wrote in forceful terms to the Attorney-General about a
perceived injustice to her client, was initially censured by the High Court but exonerated by the
Supreme Court, see Mutanda v Attorney-General & Anor 2013 (2) ZLR 683 (S).
5
See Ex parte Chief Immigration Officer 1993 (1) ZLR 122 (S) at 125D–E, where Gubbay CJ said that
practitioners should avoid openly criticising proceedings in which they have been involved, for if they
do there is a risk that their criticism may be partisan rather than objective. See also Matamisa v Mutare
City Council 1998 (2) ZLR 439 (S).
6
Dzeka v Nyabango 2004 (1) ZLR 204 (H).
7
S.C. Shaw (Pvt) Ltd v Minister of Lands 2005 (2) ZLR 153 (S) at 156-8, where counsel alleged that
the Government had offered judicial officers farms which had been seized from white commercial
farmers, in order to induce the judiciary to rule favourably on the Government’s land resettlement pro -
gramme, and that judicial officers had improperly accepted the farms. Counsel was unable to substan-
tiate the allegation, and was castigated by the court for making it.
8
Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1)
ZLR 226 (H). See also Minister of Lands & Ors v CFU 2001 (2) ZLR 457 (S) for an unnecessarily
vehement rejection by Chidyausiku CJ of an application that he should recuse himself.
9
Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) at 114C. In English law the rule is the same (Locabail
(UK) Ltd v Bayfiled Properties Ltd [2000] 1 All ER 65 (CA) (cited in Bernert’s case) but is based on
waiver rather than the interests of justice.
41
see a judicial officer in chambers in connection with a contested matter, he or she
must notify the other parties to the litigation, or their legal representatives, and invite
them to accompany him or her to see the judicial officer. Any communication with a
judge or magistrate who is presiding over such legal proceedings should be done (if in
writing) through the registrar or clerk of the court, or (if orally) in open court or in
chambers in the presence of the legal practitioner for the other side.10
It is customary for a legal practitioner who is representing a party in a matter that is to
be heard by a judicial officer before whom the practitioner has not previously ap-
peared, to pay a courtesy call on the judicial officer in chambers before the hearing in
order to introduce himself or herself. Even in such a case, however, the practitioner
must invite the other parties to accompany him or her to see the judicial officer. 11
Once a case has been argued and is awaiting judgment, a legal practitioner who was
involved in the case must not communicate with the judicial officer in regard to the
merits of the case. Any such communication will be construed as an unprofessional
attempt to influence the judicial officer’s decision.12
Abuse of court process

It is impossible to define comprehensively what is meant by an abuse of court process,
but in general terms it would take place when the court’s procedure is used by a litig-
ant for a purpose for which it was neither intended nor designed, to the prejudice or
potential prejudice of another party to the proceedings. 13 It may also take place when
a litigant institutes proceedings that are obviously unsustainable.14
A legal practitioner must not abuse court process, e.g. he must not enter an appearance
to defend when there is no defence, and must not use court procedures to intimidate
the other side or delay matters. He should not file bogus pleadings. 15 Needless to say,
he must not deliberately alter court process 16, for that usually amounts to forgery or
fraud.
Nor should a legal practitioner try to frustrate court procedures. For example, if his or
her office is the client’s address for service of court process (which it usually is), it is
unethical and unprofessional for the practitioner to refuse to accept service of pro-
cess.17
Duty to assist the court adjudicate on real issues

In civil proceedings lawyers should generally try to help the court adjudicate on the
real issues in the case, rather than allow those issues to be obscured in a welter of pro-
10
Deputy Sheriff, Harare v Maketshemu & Ors 2013 (2) ZLR 704 (H); Sahawi International (Pvt) Ltd
& Anor v Bredenkamp & Anor 2010 (1) ZLR 102 (H).
11
Deputy Sheriff, Harare v Maketshemu & Ors 2013 (2) ZLR 704 (H) at 706D.
12
Chiadzwa v Commissioner-General of Police & Ors 2011 (2) ZLR 241 (H)
13
Standard Credit Corp Ltd v Bester & Ors 1987 (1) SA 812 (W) at 820A.
14
African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 565 D-E.
15
For example, Ndlovu v Murandu 1999 (2) ZLR 341 (H), where a legal practitioner who assisted his
client in applying for an order confirming the unlawful cancellation of a contract which he knew was
legally binding, was deprived of his fees. See also Brenner’s Service Station & Garage (Pty) Ltd v
Milne & Anor 1983 (4) SA 233 (W).
16
G R Engineering (Pvt) Ltd & Anor v Mitre Engineering (Pvt) Ltd & Anor HB-29-2005.
17
Mufundisi v Rusere 2008 (2) ZLR 264 (H).
42
cedural objections, interlocutory applications, points in limine and appeals. As the
Canadian Model Code of Professional Conduct puts it:
“In civil proceedings, a lawyer should avoid and discourage the client from resorting to
frivolous or vexatious objections, attempts to gain advantage from slips or oversights
not going to the merits or tactics that will merely delay or harass the other side. Such
practices can readily bring the administration of justice and the legal profession into
disrepute.”18
A legal practitioner’s duty to help the courts adjudicate on the real issues of a case is a
duty the practitioner owes to the court and it prevails over the practitioner’s duty to
the client: hence practitioners must conduct cases so as not to take up the courts’ time
unnecessarily even if their clients give instructions to the contrary ‒ or, as an Aus-
tralian judge put it, “notwithstanding that the client may wish to chase every rabbit
down its burrow.”19
In Telecel Zimbabwe (Pvt) Ltd v POTRAZ & Ors 2015 (1) ZLR 651 (H) at 659C-E,
Mathonsi J castigated lawyers who raise points in limine, particularly objections to
having applications dealt with on an urgent basis:
“A preliminary point should only be taken where firstly it is meritable and secondly it is
likely to dispose of the matter. The time has come to discourage such waste of court
time by the making of endless points in limine by litigants afraid of the merits of the
matter or legal practitioners who have no confidence in their clients’ defence vis-à-vis
the substance of the dispute, in the hope that by chance the court may find in their fa-
vour. If an opposition has no merit it should not be made at all.”
The learned judge suggested that practitioners who raise such points should be penal-
ised by ordering them to pay costs de bonis propriis.
What has been said above applies to civil cases. In criminal cases legal practitioners
representing accused persons can take preliminary points and can raise procedural ob-
jections, so long as they are not frivolous and are likely to assist their clients. It must
be remembered that in criminal cases the prosecution has to prove its case beyond a
reasonable doubt ‒ a heavy onus ‒ and if the State fails to do so the accused person is
entitled to an acquittal, even if the State’s failure was due to a technicality. Accused
persons who are acquitted on a technicality will often be freed from further prosecu-
tion. Hence raising technical and procedural points is more likely to benefit clients in
criminal cases than in civil ones. But, as already indicated, legal practitioners should
not raise technical points frivolously, or purely for the purpose of delaying proceed-
ings, even in criminal cases.
The reason behind legal practitioners’ duty to assist the courts in deciding real issues
touches on the fundamental purpose of the legal system, which is to resolve disputes
between litigants, to do justice between litigants so that people do not resort to self-
help and use force to secure their rights. If the courts decide cases on mere technical-
ities without dealing with the substance of the disputes referred to them, the courts
and the entire legal system will fall into disrepute. Legal practitioners have a duty to
ensure that this does not happen.
Undertakings and assurances to courts

If legal practitioners give an undertaking to a court that they will do something — for
example, file a document or submit written argument — then they must keep their
18
Canadian Model Code of Professional Conduct, Commentary [8] to Guiding Principle 5.1-1.
19
Per Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543.
43
word. It is unethical not to do so, and failure to honour an undertaking may result in
the practitioner being ordered to pay costs.20
Courts usually accept a legal practitioner’s assurances as to matters of fact concerning
a case, and in order to deserve this trust practitioners must act with the utmost good
faith towards the court. A practitioner must ensure either that his assurances are true
— i.e. that their truth is within his knowledge — or that the source of the practi -
tioner’s information is identified.
It is an invaluable asset for legal practitioners that judicial officers should recognise
their honesty and have full confidence in the truth of statements they make or assur-
ances they give. This is an asset which practitioners can very easily lose if they ever
betray the trust and confidence reposed in them by the courts.21
Misleading a court: concealment of facts

A legal practitioner must never knowingly mislead the court, directly or by omission,
but must always act fairly and in good faith. 22 Particularly in chamber applications,
there must be full disclosure of all material facts (i.e. of all matters that are material to
the granting of the application and of which the practitioner is aware). A legal practi -
tioner must not assist a client to conceal any such facts.23
When preparing affidavits for any applications, legal practitioners must be careful to
ensure that statements of fact in the affidavits are supported by the persons who will
swear the affidavits or by their clients’ instructions.24
The duty to be open with the court begins when the practitioner applies for registra-
tion. The applicant must disclose everything that has a bearing on his or her fitness to
be registered. For example, if the applicant has previously been convicted of criminal
offences that may be material to the application, they must be disclosed.25
On the other hand, a legal practitioner who knows of facts which would assist his or
her adversary in court is not always under a duty to inform the adversary or the court
of those facts, if to do so would prejudice the practitioner’s own client. He would be
under such a duty if concealing the facts would amount to misleading the court or ly -
ing26 or would otherwise be regarded as dishonourable. For example, if a practitioner
knows that a relevant affidavit has been filed in the proceedings and is therefore no-
tionally within the knowledge of the court, then the practitioner has a duty to inform
the judicial officer of its existence if the judicial officer has overlooked it. 27
In defended matters the duty of disclosure may be stated as a duty not actively to mis -
lead the court. The duty would not extend to requiring disclosure of weaknesses in
20
See for example, Maposa v Digglefold Development Assoc & Anor HH-47-07.
21
Holmes v Law Society, Cape, & Anor 2006 (2) SA 139 (C) at 149-150.
22
See Principle 14.01 of the Guide to the Professional Conduct of Solicitors (1990) published by the
Law Society, London: “A solicitor who acts in litigation, whilst owing a duty to his client to do his
best for him, must never deceive or mislead the court.”
23
Executive Assistance Training Centre (Pvt) Ltd v ZESA Pension Fund & Ors HB-1-2006.
24
Para 3(50) of the Schedule to the Legal Practitioners (Code of Conduct) By-laws, 2018 (S.I. 37 of
2018).
25
Ex parte Cassim 1970 (4) SA 476 (T).
26
Suppressio veri (concealment of the truth) is a form of lying.
27
Paragraph 2 of the commentary to principle 14.01 of the Guide to the Professional Conduct of Soli-
citors (1990) published by the Law Society, London.
44
one’s own case, but might cover the suppression of a fact, unknown to the other side,
which would completely disentitle one’s client to the relief claimed.
There is no clear demarcation between honourable disclosure and assisting the other
side, but nonetheless practitioners must keep on the right side of the dividing line
between the two.
Argument: citation of authorities, even adverse authorities

Argument in court must never be misleading, either on the facts or the law. Careless-
ness is frowned on in this regard. 28 Legal practitioners are expected to know the law
or, if they don’t, to make a reasonably diligent effort to ascertain it. Deliberately mis-
leading a court as to the contents of a statute, judgment or other authority is grossly
unethical conduct.29
On the other hand, a legal practitioner does not necessarily have to believe in the cor-
rectness of a legal argument he or she is putting to a court. If a law is capable of two
or more legitimate interpretations – and few laws are so clear that they can only be in-
terpreted in one way – then a practitioner is entitled to argue for whichever interpreta-
tion best suits the client’s case even though the practitioner may feel that the law
should be interpreted differently, so long as he or she does not try to mislead the court
as to the contents of any statute, judgment or other authority.30
If the practitioner is aware of any authority, whether case law or statute, that goes
against the argument which he or she is putting to the court, then the practitioner must
bring that authority to the attention of the court, even where the other side is legally
represented.31 In the first instance the practitioner may inform opposing counsel of
the authority (assuming it is not cited in counsel’s heads of argument), but if opposing
counsel does not refer it to the court then the practitioner must. Failure to do so is un-
ethical and betrays the trust which the court reposes in the practitioner.
Unwarranted allegations
A legal practitioner should not make allegations in legal proceedings that are intended
only to insult, degrade or annoy the other side, or any witness or other person. 32 If
possible, a practitioner should also avoid naming in open court persons who are not
witnesses or parties to the proceedings, if naming them is likely to bring their charac-
ters into disrepute. Instead, the practitioner should ask the court to receive their
names and addresses in writing, rather than allow their names to be revealed in pub-
lic.33
28
S v Khumalo HB-70-1991.
29
See the Canadian Bar AssociationModel Code of Professional Conduct, Chapter IX, gGuiding pPrin-
ciple 5.1-2(e), cited earlier, and the Zimbabwean cases of Kawondera v Mandebvu 2006 (1) ZLR 110
(S) and Mashonganyika & Anor v Pfute & Ors 2014 (2) ZLR 382 (H) at 389E-H.
30
That is why legal practitioners should preface their arguments with “I submit that …” rather than “I
think that …” or “I believe that …” A practitioner is submitting the client’s case to the court and is not
necessarily telling the court what he or she actually believes or thinks is the law.
31
Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H) at 596.
32
Paragraph 3(50) of the Schedule to the Legal Practitioners (Code of Conduct) By-laws, 2018 (S.I. 37
of 2018) and principle 14.02 of the Guide to the Professional Conduct of Solicitors (1990) published by
the Law Society, London.
33
Commentary 2 to principle 14.03 of the Guide to the Professional Conduct of Solicitors (1990) pub-
lished by the Law Society, London. If a party to matrimonial proceedings is alleged to have committed
adultery or other misconduct with a third party, and the third party is named in any document filed in
45
Interviewing witnesses
Generally
Generally, it is most improper to interview a witness who is still giving evidence (e.g.
during an adjournment).34 It can only be done after informing the court and explain-
ing to the court why it is necessary to do so. A prosecutor who does this is guilty of
unprofessional conduct, which amounts to a gross irregularity that may warrant set-
ting aside the proceedings.35
To tamper with a witness by trying to get the witness to change his or her evidence is
serious misconduct. In similar vein, it is improper to offer payment to a witness con-
tingent upon the nature of the evidence the witness gives, or upon the outcome of the
case.36 Clearly such a payment is likely to have a material effect on the witness’s
evidence. On the other hand, it is not improper to offer to pay a witness’s expenses
for attendance at court, so long as the payment is not made contingent on the nature of
the witness’s evidence or the outcome of the case.
Witnesses’ statements should not be taken on oath. It is improper to do so in civil
cases.37 The only reason for taking such a statement on oath is to make the witness
fear a perjury charge if he or she departs from the statement; hence making a witness
swear an affidavit is a form of undue influence. The rule (against taking witnesses’
statements on oath) should also apply to criminal cases. 38 Needless to say, the rule
does not apply to proceedings such as applications, where the evidence of witnesses is
normally adduced by means of affidavits.
Civil cases
In civil cases, a legal practitioner can interview anyone as a prospective witness,
whether or not that person has been interviewed or subpoenaed by the other side. If,
however, the person has been interviewed or subpoenaed by the other side, a legal
practitioner should notify the other side’s practitioner before interviewing the per-
son.39 And if such a person is interviewed, it should be done only with a view to de-
ciding whether or not the person should be called or in order to obtain information
which may lead to the obtaining of other evidence. The interview should not be used
to obtain material for cross-examining the person should he or she be called by the
other side.
Criminal cases
the proceedings, that document must be served on the third party before the trial: O. 35 R 273 of the
High Court Rules, 1971 (S.I. 1047 of 1971).
34
See Rule VI(d)(ii) of the rules of the Bar Association: “It is in general undesirable for Counsel to in-
terview any witness after he has been sworn … It is improper for Counsel to interview a witness who is
under cross-examination, unless circumstances make such an interview necessary. Where such circum-
stances exist Counsel who desires to hold the interview must inform his opponent before doing so.”
35
S v Wise 1974 (2) RLR 194 (A).
36
Principle 4.06 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London.
37
Hersman v Angilley 1936 CPD 386; Mapuranga v Mungate 1997 (1) ZLR 64 (H)
38
Cf S v Moyo 1989 (3) ZLR 250 (S).
39
International Tobacco Corp (SA) Ltd v United Tobacco Co (South) Ltd 1955 (2) SA 1 (W) at 12.
46
In criminal cases, the defence may not interview State witnesses to find out what their
evidence will be, unless the prosecutor consents.40 On the other hand, if the State does
not call one of the people it has told the defence it will call as a witness, then it must
make that person available to the defence.
To avoid problems arising over the interviewing of State witnesses, practitioners
should always ask the prosecutor to provide them with the names of persons whom
the State intends to call as witnesses. A prosecutor must provide such a list when
asked for it.
Reid Rowland (Criminal Procedure in Zimbabwe, pp 18–32-3) recommends that pro-
secutors should not interview State witnesses, other than expert witnesses, unless it is
necessary to clarify the witness’s evidence in the prosecutor’s mind. Any such inter-
view should be conducted with a colleague present. In the case of expert witnesses,
on the other hand, an interview is often a good thing because it may give the prosec-
utor an insight into the nature and importance of the technical evidence which the wit-
ness will be giving.
Examination of witnesses
When examining and cross-examining witnesses, the legal practitioner must be fair,
and must not try to adduce irrelevant or inadmissible evidence. Bullying a witness is
not permissible.41 While cross-examination may be a powerful engine for eliciting the
truth, cross-examination by harassment is one of the greatest impediments to the
truth.42 It must be avoided.
Freedom of speech: defamation

A legal practitioner must have a considerable degree of freedom in laying his or her
client’s case before the court. Hence a practitioner who, in the interests of a client,
makes a defamatory statement in court, or in pleadings, is protected by qualified priv-
ilege if he or she proves that the statement was relevant to the question at issue in the
case. If the practitioner proves this, then it is for the person suing the practitioner for
defamation to prove that even though the statement was relevant it was not supported
by reasonable grounds or that the practitioner, in making the statement, acted with an
improper motive.43 This applies to statements made in civil and criminal cases.
The legal practitioner is not obliged to satisfy himself that the statement is true. He
may accept the instructions of his client but should consider himself as upon his in-
quiry as to the reliability of those instructions. If he obtains the information from
someone other than his client, he should satisfy himself that the information is correct
before using it.
40
In S v Sefadi 1995 (1) SA 433 (D), it was held that the provisions of the South African Constitution
conferring a right of access to information and a right to a fair trial might require reconsideration of this
rule. Both rights are guaranteed by our Constitution, so the application of this rule in Zimbabwe may
need to be reconsidered as well. Until it is reconsidered, however, practitioners should observe it.
41
S v Jakarasi 1983 (1) ZLR 218 (S) at 225: “I trust that prosecutors will remember that they are of-
ficers of the court, that their function does not give them licence to be offensive and oppressive and that
witnesses, including accused persons, are entitled to the same courtesy from them as they [i.e. prosec -
utors] are entitled to expect from the witnesses.” (per Baron ACJ). See also S v Gidi & Anor 1984 (4)
SA 537 (C).
42
R.J. Gerber Lawyers, Courts and Professionalism (1989) Greenwood Press, New York, page 111.
43
See Neethling, Potgieter & Visser Law of Delict 3rd ed p. 345. See also Joubert & Ors v Venter
1985 (1) SA 654 (A).
47
In all cases, though, it is an elementary principle of common sense for a practitioner to
take every reasonably possible step to verify a defamatory allegation before putting it
to a witness in court — in the interests of the practitioner’s professional reputation, if
nothing else.
When the profession was divided into advocates and attorneys, an advocate who ob-
tained defamatory information from his instructing attorney and then put it to a wit-
ness in court was protected from a defamation action unless he knew the statement to
be untrue or had no reasonable ground for believing it might be true. The basis of the
rule was that the advocate was entitled to assume that the matter had been sifted and
that the allegation could be proved if necessary.44 It is submitted that the rule contin-
ues to apply in a fused profession, where a legal practitioner receives defamatory in-
formation from another practitioner who is instructing him or her.
44
Joubert & Ors v Venter 1985 (1) SA 654 (A)
48
5. DUTIES OWED BY LEGAL PRACTITIONERS TO THEIR CLIENTS
The relationship between legal practitioner and client is fundamentally one of prin-
cipal and agent, the client being the principal and the legal practitioner the agent. It is
a special form of agency, because the legal practitioner is not bound entirely by the
client’s mandate: he or she also has obligations towards the court, the State and the
profession, and in carrying out the client’s mandate the practitioner must not ignore
those obligations even if they conflict with the interests of the client. Nevertheless, a
legal practitioner is basically an agent and as such must show the utmost good faith
(uberrima fides) in all his or her dealings with the client.
A legal practitioner must give of his or her best in the client’s interests. He or she
must represent the client with diligence, with reasonable skill and learning, and with
competence and honesty. He or she must never wilfully deceive the client. 1 He or she
must keep his client’s affairs confidential and must never descend into dishonourable
or unfair conduct. Absence of due diligence amounts to negligence, which may be
misconduct.
When does a person become a client?

Because the relationship between legal practitioner and client is essentially one of
principal and agent, a practitioner cannot generally act for a person unless that person
has mandated the practitioner to do so ‒ until, that is, the person has become the prac -
titioner’s client.2
Where a legal practitioner is in private practice it is usually easy to determine when
someone becomes his or her client. A person who comes to the practitioner’s office
seeking advice, who is interviewed by the practitioner and who pays a deposit to
cover the practitioner’s expenses and fees, is clearly a client. But sometimes the posi-
tion is not so clear.
What if, for example, a practitioner agrees to act for a person pro bono or pro deo, i.e.
without charging a fee? In such a case the person is a client: the fact that the practi -
tioner is not charging a fee does not mean, for example, that he or she is exempted
from the duty to act competently and with due diligence, nor does it exempt the prac-
titioner from the duty to keep the person’s affairs confidential.
But what if the relationship between the practitioner and the person is more casual?
For example, if a practitioner is approached by a fellow-guest at a party or other social
gathering and asked for legal advice, does the giving of advice in such informal cir-
cumstances make the fellow-guest a client of the practitioner? Obviously that would
depend on the circumstances, but whatever the precise relationship between them, the
practitioner would have to exercise due care in giving advice: if he or she negligently
gives wrong advice and the fellow-guest acts on it to his or her detriment, the fellow-
guest might well have a delictual claim against the practitioner. 3 When giving advice,
1
Law Society of Southern Rhodesia v Q 1958 R & N 495 (SR), where a practitioner was suspended for
12 months for preparing a forged mortgage bond in an attempt to persuade his clients that he had inves-
ted their money in a mortgage.
2
In Mndaka & Ors v Harvey World Travel (Pvt) Ltd 2015 (2) ZLR 412(H), Mathonsi J (as he then
was) said it was atrocious and unconscionable unethical conduct for a practitioner to purport to repres-
ent a party to legal proceedings and consent to judgment without instructions from the party, indeed
without even having met the party.
3
Rampal & Anor v Brett, Wills & Partners 1981 (4) SA 360 (N); Neethling, Potgieter & Visser Law of
Delict 3rd ed pp 300 ff.
even casually, practitioners must exercise due care to ensure that if their advice is ac-
ted upon it will not cause loss to the person whom they have advised.
Identification of client
It is an elementary precaution, based on sound common sense, for a legal practitioner
to take reasonable steps to ensure that the client really is the person he say he is.
What can happen if a practitioner does not take this precaution is shown in Vela v
Magolis 2013 (2) ZLR 611 (H), where a man and a woman, purporting to be married,
approached a practitioner and asked him to get them a divorce by consent. The wo-
man was not in fact the man’s wife, but an impostor: the man was trying to get a di -
vorce from his real wife by subterfuge without her knowledge. The practitioner did
not ask for proof of identity but simply drew up a consent paper, 4 filed the necessary
documents and obtained a divorce for the man by consent. When the real wife be-
came aware that she had been “divorced” she had to have the divorce proceedings set
aside.
Where a practitioner receives instructions not from a client directly but from someone
who purportedly represents the client (for example, where a person who purports to be
a director or employee of a company asks the practitioner to take on work for the
company) the practitioner should make reasonable enquiries to confirm that the per-
son who gave the instructions really does represent the client.
Acceptance or refusal of work

It is not altogether clear whether a legal practitioner is under an obligation to accept
work. In a divided profession, advocates (i.e. litigation specialists) must generally ac-
cept all work that is offered to them, provided that it is work in the courts and in the
fields in which the advocate professes to practise. 5 This is so particularly in criminal
cases, because people charged with criminal offences must be able to secure legal rep-
resentation. AOn the other hand, attorneys on the other hand(i.e. lawyers who do not
specialise in litigation) are entitled to accept or refuse any work, with certain excep-
tions: e.g. they should take work from an established client where the client is faced
with an emergency such as an arrest; and if the attorney is practising in a small town
where there are no other practitioners available, he or she should try to provide legal
services to the people in the town who need them.
While it is true to say that generally legal practitioners who do not specialise in litiga-
tion attorneys are under no duty to take on work that they do not want,6 they should
try to help clients who come to them in need. As stated in the Canadian Bar Associ-
ationModel Code of Professional Conduct:
“TheA lawyer has a general right to decline a particular employment representation (ex-
cept when assigned as counsel by a courttribunal) but it is a right the lawyer should be
slow to be exercised prudently, particularly if the probable result would be to make it
very difficult for a person to obtain legal advice or representation. Generally speaking,
thea lawyer should not exercise the right merely because the person seeking legal ser-
vices or that person’s cause is unpopular or notorious, or because powerful interests or
4
In doing so he acted for both parties, which was improper in view of the potential conflict of interest:
Vela v Magolis supra at 613F.
5
Rule VI (a) of the Rules of the Bar of Zimbabwe (1982). The rule states that any action that is de -
signed to interfere with the advocate’s duty to accept briefs is an interference with the course of justice.
6
See Principle 9.01 of the Guide to the Professional Conduct of Solicitors (1990), published by the
Law Society, London.
50
allegations of misconduct or malfeasance are involved, or because of the lawyer’s
private opinion about the guilt of the accused. … [T]heA lawyer who declines employ-
menting representation should assist the person toin obtaining the services of another
lawyer competent qualified in the particular field and able to act.”7
In a fused profession, it is probable that the rules applicable to attorneys prevail —
though with the proviso mentioned in the Canadian Model Bar Association Code of
Professional Conduct quoted above — unless the practitioner is a member of the de
facto Bar, in which case he or she is bound by the professional rules applicable to the
Bar. Even if a litigation specialist is not a member of the de facto Bar, it is submitted
that the rule applicable to advocates will apply to him or her, because of the need to
ensure that people who are charged with criminal offences or who otherwise become
involved in litigation can get legal representation.
What is certain is that practitioners must take their share of legal aid work, unless
there are legitimate grounds for refusal such as conflict of interest.
On the other hand, a legal practitioner must not take on work in which he or she can -
not represent the client with competence or diligence. 8 It is not always an excuse for a
practitioner to say that he or she was overstretched and had too much work on hand to
give proper attention to a client’s case: one will probably find in such circumstances
that the practitioner should not have taken on the client’s case in the first place.
Professional competence
A legal practitioner should not take on work which he or she is not competent to
handle. The Canadian Bar Association puts the matter well in itsModel Code of Pro-
fessional Conduct puts it well:
“TheA lawyer should not undertake a matter without honestly feeling either competent to
handle it, or able to become competent without undue delay, risk or expense to the client.
The lawyer who proceeds on any other basis is not being honest with the client. This is
an ethical consideration and is to be distinguished from the standard of care that a court
would apply invoke for purposes of determining negligence. … Competence involves
more than an understanding of legal principles;: it involves an adequate knowledge of
the practice and procedures by which those principles can be effectively applied. To ac -
complish this, the lawyer should keep abreast of developments in all areas in which the
lawyer practises. The lawyer should also develop and maintain a facility with advances
in technology in areas in which the lawyer practises to maintain a level of competence
that meets the standard reasonably expected of lawyers in similar practice circum-
stances.”9
The Canadian Model Code of Professional Conduct10 lists various examples of con-
duct that is expected of a competent lawyer, and it is worth noting some of them:
 keeping a client reasonably informed; 11
 answering a client’s reasonable requests for information;
7
Canadian Bar AssociationModel Code of Professional Conduct, Chapter XIV Guiding Principle
6Commentary [4] to principle 4.1-1.
8
See Principle 9.03 of the Guide to the Professional Conduct of Solicitors (1990), published by the
Law Society, London.
9
Paras 3 and 4 of the cCommentaries [5] and [2] y on Guiding Principle 3.1-2the rules set out in
Chapter II of the Code of Professional Conduct.
10
Paragraph 7 of the commentary on the rules set out in Chapter IICommentary [5] to principle 3.2-1.
11
Some modern office software for lawyers includes a facility enabling clients to access their files so
that they can monitor progress directly.
51
 responding to a client’s telephone calls;
 keeping appointments a client, or providing a timely explanation or apology
when unable to keep an appointment;
 taking appropriate steps to do something promised to a client, or informing or
explaining to a client when it is not possible to do so;
 ensuring, where appropriate, that all instructions are in writing or confirmed in
writing;
 ensuring that work is done in a timely manner so that its value to the client is
maintained;
 providing quality work, and reviewing documents to avoid delay and unneces-
sary costs in correcting errors and omissions;
 maintaining office staff, facilities and equipment adequate to the lawyer’s
practice;
 informing a client of a proposal of settlement, and explaining the proposal
properly;
 providing a client with complete, accurate and relevant information about a
matter;
 making a prompt and complete report when the work is finished or, if a final
report cannot be made, providing an interim report when one might reasonably
be expected.
Degree of skill and competence expected of practitioners

The client is entitled to expect from his practitioner the general level of skill currently
possessed by members of the profession.12
In Honey & Blanckenberg v Law 1965 RLR 685 (G) at 691 (1966 (2) SA 43 (R) at
46), Goldin J said:
“An attorney’s liability arises out of contract and his exact duty towards his client de-
pends on what he is employed to do … In the performance of his duty or mandate, an
attorney holds himself out to his clients as possessing adequate skill, knowledge and
learning for the purpose of conducting all business that he undertakes. If, therefore, he
causes loss or damage to his client owing to a want of such knowledge as he ought to
possess, or the want of such care as he ought to exercise, he is guilty of negligence giv-
ing rise to an action for damages by his client … Where an action is brought by the cli-
ent against his attorney for negligence, the [client] must prove that there was such a
want of skill or care as to amount to a breach of contract. The test for establishing neg -
ligence is whether he has been proved to be guilty of such failure as no attorney of or-
dinary skill would be guilty of if acting with reasonable care. He will not be guilty of
negligence merely because he committed an error of judgment whether on matters of
discretion or law.”
But in regard to errors of judgment, it was said in Mouton v Die Mynwerkersunie
1977 (1) SA 119 (A):
“In my opinion, however, this does not exclude the possibility of liability where the error
of judgment is due to the lack on the part of the attorney of the required degree of
knowledge, skill or care.”
12
See generally Randell & Bax The South African Attorneys Handbook 3rd ed pp. 106-7.
52
Practitioners are not expected to know all the law, but if a practitioner considers a ma-
terial point to be difficult or doubtful he should take counsel’s opinion if the client in-
structs him to do so — and in appropriate cases he should suggest or recommend to
the client that counsel’s opinion be sought.13 If he does so and acts on that opinion, he
will not be liable for negligence so long as counsel was, in his judgment, a competent
person, and the full facts were laid before counsel, and the question was a difficult one
which he could not reasonably have been expected to answer himself.14
One cannot expect a legal practitioner with a generalised practice to have the same de-
gree of skill and knowledge in a specialised branch of the law (e.g. patents, copyright,
water law) as a practitioner who specialises in that branch. But it is culpable for a
practitioner to handle a case which he must know is beyond his capacity or which re -
quires specialist knowledge which he does not possess — unless he has explained the
position fully to his client and the client has instructed him to proceed.15
In litigious work, the practitioner must select the proper court in which to sue, must be
clear as to his client’s cause of action, must make himself master of his client’s case
and inform the client of the evidence that will be needed and what documents are re-
quired; he must subpoena the necessary witnesses and comply with the rules of pro-
cedure.
As noted in the Canadian Bar Association’s Model Code of Professional Conduct,
quoted abovecited earlier, legal practitioners must keep abreast of advances in techno-
logy in order to maintain a proper level of competence. For example, if they use com-
puter technology to prepare and store documents and information for their clients —
as all law firms do nowadays, at least to some extent — then they must take adequate
precautions to protect their computerised data from “hacking” or theft in order to keep
their clients’ affairs confidential.
Duty to advise client

Practitioners must realise a client does not always understand his legal position and
does not know the steps to take to safeguard his interests. The practitioner must ex-
plain the nature and effect of documents to be signed.
A practitioner must provide the client with advice which is completely frank and hon-
est. This advice must be given regardless of the consequences to the practitioner —
e.g. clashing with a powerful government department.
Civil cases: In contentious matters a legal practitioner must advise the client on his
prospects of success and, in cases where damages are claimed, on what amount the
client can reasonably expect to be awarded. 16 If the practitioner’s views change in the
course of dealing with the matter, he must communicate his changing views to the cli-
ent.
13
See paragraph 6 of the commentary on the rules set out in Chapter II of the Canadian Bar Associ-
ation: “The lawyer must be alert to recognize any lack of competence for a particular task and the dis -
service that would be done the client by undertaking that task. If consulted in such circumstances, the
lawyer should either decline to act or obtain the client’s instructions to retain, consult or collaborate
with a lawyer who is competent in that field. The lawyer should also recognize that competence for a
particular task may sometimes require seeking advice from or collaborating with experts in scientific,
accounting or other non-legal fields. In such a situation the lawyer should not hesitate to seek the cli-
ent’s instructions to consult experts.”
14
Randell & Bax The South African Attorneys Handbook 3rd ed p. 107
15
Mavheya v Mutangiri & Ors 1997 (2) ZLR 462 (H).
16
Mohadi v Standard Press (Pvt) Ltd 2013 (1) ZLR 31 (H) at 37D.
53
If the practitioner considers proposed litigation to be useless, either because the law is
against the client or because the client is unlikely to recover anything substantial from
it, the practitioner must advise the client accordingly. In such a case, if the client tells
the practitioner to proceed notwithstanding the advice he has given, the practitioner
can continue unless he considers the client has absolutely no legal right whatever; in
such an event he must withdraw, because to continue the proceedings would be an ab-
use of process. But in civil matters where the client has refused to take his advice, the
practitioner may withdraw if he can do so without prejudicing the client.
So far as he can, a legal practitioner should advise his client about costs.
Criminal cases
A legal practitioner must advise a client as to the proper course to take: to plead
guilty or not guilty, but he must not pressure the client into pleading. The legal practi-
tioner must ensure that the client understands precisely what he is charged with and, if
he makes admissions, what he is admitting and what the consequences of the admis-
sions will be. If a client does not take the advice, the legal practitioner is not entitled
to withdraw unless the client asks him to do so or he finds it impossible to continue.
If the legal practitioner does withdraw, he or she must do so in such a way as to avoid
prejudicing the client. It is inimical to the client’s interests, for example, for the prac-
titioner to blurt out in open court that he or she is having difficulty with the client and
wishes to be excused.17
Duty to act with reasonable diligence

Practitioners must apply themselves with reasonable diligence to the conduct of their
clients’ affairs. They must acknowledge instructions received, reply promptly to let-
ters and keep their clients and correspondents informed as to the progress of events
and of the reasons for any serious delay that occurs.18 If a client’s business is trans-
ferred from one person to another in a firm of legal practitioners, the client must be in-
formed and told the reasons for the transfer.19
Inordinate delay in performing work, with resultant actual or potential prejudice to the
client, amounts to professional misconduct.20 Even if it does not lead to misconduct
proceedings, it may lead to the court awarding costs de bonis propriis against the legal
practitioner.
If a practitioner is instructed to defend an action, he will be guilty of gross negligence
if he allows judgment to be taken against the client by default, even if the client has
no defence (though in that event the practitioner should have advised the client to
settle the matter rather than to defend the proceedings). Practitioners conducting court
proceedings must be aware that they operate within time-limits and in terms of laid
17
S v Mutsinziri 1997 (1) ZLR 6 (H) at 11.
18
Randell & Bax The South African Attorneys Handbook 3rd ed p 108. See also Denton v Director of
Customs and Excise 1989 (3) ZLR 41 (H); and the Guide to the Professional Conduct of Solicitors
(1990), published by the Law Society, London, where Principle 13.01 states: “A solicitor is under a
duty to carry out the terms of his retainer with due care and skill, proper diligence and promptness; he
must also keep his client properly informed.”
19
Society, London.
20
Law Society, Cape v Visser 1965 (1) SA 523 (C); Manase v Minister of Safety & Security & Anor
2003 (1) SA 567 (Ck).
54
down procedures. Where a practitioner fails to act within the time-limits he or she has
a duty to the court to give a credible and convincing explanation for the failure.21
The Canadian Bar Association in its Code of Professional Conduct22 lists various ex-
amples of conduct that amounts to lack of due diligence, and it is worth noting some
of them:
failure to keep the client reasonably informed; 23
unexplained failure to respond to the client’s telephone calls;
failure to keep appointments with the client without explanation or apology;
informing the client that something will happen or that some step will be taken by a
certain date, then letting the date pass without follow-up information or explanation;
doing the client’s work so belatedly that its value to the client is diminished or lost;
slipshod work, such as mistakes or omissions in statements or documents prepared on
behalf of the client;
failure to maintain office staff and facilities adequate to the lawyer’s practice;
failure to inform the client of proposals of settlement, or to explain them properly;
misleading the client about the position of a matter in order to cover up neglect or
mistakes;
failure to make a prompt and complete report when the work is finished or, if a final
report cannot be made, failure to make an interim report where one might reasonably
be expected.
A practitioner is liable for the negligence or shortcomings of his clerk or employee. 24
This is an example of the personal responsibility attaching to professional persons.
Right to conduct case

A legal practitioner who engages in litigation on behalf of a client has the right to con-
trol the way the case is conducted. 25 It is the practitioner who decides, for example,
whether a particular witness, including the client, should be called to give evidence.
If the client disagrees with the way he or she is conducting the case, the practitioner
may have to withdraw.
This must not be taken too far, however. A legal practitioner must not take over his or
her client’s case, because the practitioner is essentially no more than an agent of the
client. So, for example, a legal practitioner cannot file a notice of opposition to an ap -
plication without being instructed to do so by the client, even if the practitioner be -
lieves that the client may be prejudiced by the delay entailed in obtaining instruc-
tions.26
Objectivity
21
Ndlovu v Guardforce Investments (Pvt) Ltd & Ors 2014 (1) ZLR 25 (H) at 27.
22
Paragraph 7 of the commentary on the rules set out in Chapter II.
23
Some modern office software for lawyers includes a facility enabling clients to access their files so
that they can monitor progress directly.
24
Mfaswe v Miller (1901) 18 SC 172 at 174. And see Principle 2.01 of the Guide to the Professional
Conduct of Solicitors (1990), published by the Law Society, London: “A solicitor cannot escape re-
sponsibility for work carried out in his office by leaving it entirely to his staff, however well qualified.”
25
R v Matonsi 1958 (2) SA 450 (A) at 456.
26
Khuzwayo v Assistant Master of the High Court & Ors 2007 (1) ZLR 34 (H) at 37-8.
55
Particularly when giving advice to clients, legal practitioners must be as objective, im-
partial and dispassionate as possible. This does not mean they should be unsympath-
etic towards their clients: obviously not because clients, when seeking advice on per-
sonal matters such as their matrimonial affairs, often need sympathetic understanding.
But practitioners should not allow their sympathy to cloud their objective assessment
of the clients’ prospects. If a legal practitioner considers that his client has no case, or
that the client’s prospects of success are slim, or that the law is against the client’s as-
sertions, the practitioner should tell the client that in as polite and considerate a way
as possible. The practitioner should not try to avoid discouraging the client by mis-
stating the law or telling the client that his or her prospects of success are bright when
the practitioner really thinks they are dim.
Because it is important that practitioners preserve their objectivity it is undesirable for
them to represent parties in cases in which they – the practitioners – are involved as
witnesses. In the case of Trustees SOS Children’s Village Association of Zimbabwe v
Bindura University & Ors 2014 (2) ZLR 36 (H) it was said:
“[T]here is no rule of thumb that says a lawyer is automatically disbarred from represent-
ing his client in court proceedings where he was a witness to the events that sub-
sequently form the subject matter of those proceedings, or where he has filed an affi-
davit confirming his involvement and supporting his client’s version of events. Every
case must depend on its own set of circumstances. Nonetheless … a lawyer who finds
himself in [that] situation must consider seriously the wisdom of wearing the two hats:
that of being counsel for the client and that of being a witness for the client. In my view
it would be more prudent to let someone else conduct the court proceedings where the
lawyer has been seriously involved in the affairs of the client giving rise to the litiga-
tion. This is so to avoid a conflict situation. The lawyer should at all times avoid
clouding his sense of judgment.”27
Legal practitioners have been barred from appearing for parties in cases where they
have been involved closely in events leading up to the cases, particularly where their
involvement has not been that of a legal practitioner giving professional services.28
Confidentiality
A legal practitioner must keep his or her client’s affairs confidential. This means that,
with certain exceptions, a practitioner must not disclose anything concerning his or
her client’s affairs.
Extent of duty of confidentiality

The duty of c. This goes further than legal practitioner-client privilege. 29 Anything
that would be protected by legal practitioner and client privilege under the law of
evidence must be kept confidential, but even communications which are not priv-
ileged must be kept confidential unless the client consents to their being disclosed.
Confidentiality extends to any information gained by the legal practitioner while act-
ing for one’shis or her client, whether the information was gained from the client him-
self or from any other source.
27
Per Mafusire J at page 40B-D.
28
See Core Mining & Minerals Resources (Pvt) Ltd v Zimbabwe Mining Development Corp & Ors
2011 (1) ZLR 22 (H) and the cases there cited.
29
Which, in South Africa and in Zimbabwe as well, goes beyond communications made for the pur -
pose of litigation and extends to all communications made for the purpose of giving or receiving ad-
vice. See section 8 of the Civil Evidence Act [Chapter 8:01] and S v Safatsa & Ors 1988 (1) SA 868
(A) at 886, citing an Australian case, Baker v Campbell (1983) 49 ALR 385.
56
Even information that has become an open secret (e.g. a sale of immovable property
whose details are documented in the Deeds Registry) must not be divulged without
the client’s consent. Practitioners must not gGossiping about matters in handwork
they are doing for a client, even if the client is not named, is unethical.
Legal practitioners should be careful not to disclose confidential information concern-
ing a client to any of their other clients. A practitioner should refuse to undertake
work for a client if it would involve disclosing confidential information about another
client.30
The client’s address is not ordinarily confidential, but it is probably best not to reveal
it.31 It should never be revealed in matrimonial cases.
The Legal Practitioners (Code of Conduct) By-laws, 2018, extend the duty of confid-
entiality to accounts which legal practitioners send to their clients. Practitioners must
not disclose details of the accounts to third parties without their clients’ consent.32
Confidentiality and professional privilege

The duty of confidentiality goes further than legal practitioner-client privilege, which
extends to communications between a legal practitioner, acting in a professional capa-
city, and his or her client, where the communications are made in confidence for the
purpose of pending litigation or for the purpose of receiving or giving professional ad-
vice.33 Confidential information, on the other hand, as already stated, covers all in-
formation regarding a client which a practitioner gains while acting for the client. The
information need not be a communication between practitioner and client, and need
not concern pending litigation or legal advice. So while all privileged information is
confidential information, not all confidential information is privileged.
Privileged information cannot be revealed in court unless the client consents, though it
is up to the client, or the legal practitioner on behalf of the client, to claim the priv-
ilege.34 On the other hand, a legal practitioner can be compelled to disclose confiden-
tial information which is not privileged. If for example a practitioner is giving evid-
ence in court and is asked a question concerning confidential information, the practi-
tioner must answer the question unless the information is covered by legal practi-
tioner-client privilege.
The difference between privileged information and confidential information can be il-
lustrated by a case where a client seeks advice from a legal practitioner about some-
thing that is illegal. There is authority for the view that where a client communicates
with a legal practitioner before the commission of a crime with a view to being guided
or helped in committing it, the communication falls outside the scope of the practi-
tioner’s lawful mandate and so is not covered by privilege. The practitioner may
30
Canadian Bar Association Code of Professional Conduct, Chapter IV, guiding principle 6.
31
In England it is regarded as confidential, apparently. See Principle 12.05 of the Guide to the Profes-
sional Conduct of Solicitors (1990), published by the Law Society, London.
32
Paragraph 3(43) of SI 37 of 2018.
33
Which, in South Africa and in Zimbabwe as well, goes beyond communications made for the pur -
pose of litigation and extends to all communications made for the purpose of giving or receiving ad-
vice. Schwikkard, Principles of Evidence 2nd ed (2002) page 134. See section 8 of the Civil Evidence
Act [Chapter 8:01] and S v Safatsa & Ors 1988 (1) SA 868 (A) at 886, citing an Australian case, Baker
v Campbell (1983) 49 ALR 385.
34
Hoffmann & Zeffertt S.A. Law of Evidence 4th ed p.249; Schwickart Principles of Evidence 2nd ed
(2002) p. 137.
57
therefore be compelled to disclose it questioned about it on the witness stand. 35 But
even though the communication is not privileged it is covered by the duty of confid-
entiality so the practitioner must not disclose it to the police or anyone else (except in
the circumstances mentioned below). Needless to say, practitioners should not advise
their clients on how to commit crimes and may have to terminate the legal practi-
tioner-client relationship in order to avoid being implicated in a crime; but whether or
not they take the latter course they should keep confidential everything their clients
asked them to do.
To sum up: legal practitioners must keep confidential all information regarding their
clients’ affairs, and if that information is covered by privilege then not even a court
can compel them to reveal it.
Reason for confidentiality
The reason for the rule requiring confidentiality is much the same as the reason for
legal practitioner and client privilege under the law of evidence: if legal advisers
were free to disclose communications between themselves and their clients, or to dis-
close other information about their clients’ affairs, then clients would be inhibited
from frankly disclosing their affairs to their legal advisers, and might be less inclined
to seek legal advice; and legal practitioners for their part might be less able to give
advice to their clients:
“If a client cannot seek advice from his legal adviser confident that he is not acting to his
disadvantage in doing so, then his lack of confidence is likely to be reflected in the in-
structions he gives, the advice he is given and ultimately in the legal process of which
the advice forms part.”36
The importance of the rule requiring confidentiality, at least in so far as it extends to
matters that are protected by legal practitioner and client privilege, cannot be over-
emphasised: as Chidyausiku CJ said in Law Society v Minister of Transport and
Communications & Anor 2004 (1) ZLR 257 (S) at 263F, breach of lawyer-client priv-
ilege almost invariably leads to the violation of the client’s entitlement to a fair trial
guaranteed under section 69 of the Constitution. As a corollary to this, it could be ar-
gued that the rule of confidentiality supplements the constitutional right to legal rep-
resentation.
Duration of duty of confidentiality

A legal practitioner should be careful not to disclose confidential information con-
cerning a client to any of his other clients. A practitioner should refuse to undertake
work for a client if it would involve disclosing confidential information about another
client.37
A change of legal practitioners does not terminate the need for confidentiality. 38
Without the former client’s consent, the old legal practitioner may not disclose confid-
35
Paragraph 1 of the commentary to Principle 12.04 of the Guide to the Professional Conduct of Soli-
citors (1990), published by the Law Society, London. See R v Cox & Railton (1884) 14 QBD 153 at
167 and Minter v Priest [1930] AC 558 (HL) at 581.
36
Per Dawson in the Australian case of Baker v Campbell (1983) 49 ALR 385 at 445, quoted in S v
Safatsa & Ors 1988 (1) SA 868 (A) at 886F.
37
Canadian Bar Association Code of Professional Conduct, Chapter IV, guiding principle 6.
38
Masulani v Masulani 2003 (1) ZLR 491 (H).
58
ential information, even for the purpose of putting the new legal practitioner in the
picture regarding the client’s affairs.
The client’s death does not terminate the need for confidentiality either, except in re-
gard to matters concerning the administration of the client’s estate.
The client’s address is not ordinarily confidential, but it is probably best not to reveal
it.39 It should never be revealed in matrimonial cases.
Legal practitioner working for two parties

Problems can occur when a legal practitioner acts for two parties in the same matter,
but nevertheless it is by no means uncommon for them to do so, and not necessarily
improper. It frequently happens in insurance cases, for example, where a motor in-
surer nominates a legal practitioner to defend the insured in court. By defending the
insured against the claims of a third party the practitioner is protecting the interests of
both the insured and the insurance company. The practitioner’s fee is normally paid
by the insurance company, so the company is the practitioner’s client, but the practi-
tioner is also representing the insured, so the insured is a client as well.
If one of the parties, i.e. the insured or the insurance company, makes a disclosure to
the legal practitioner when he is acting for both of them, the practitioner may sub-
sequently use that disclosure against either of the parties. For example, if the insured
makes an admission of fact to the legal practitioner, the practitioner may communicate
that admission to the insurance company (and must do so if the insurance company
needs to know it), and the company may use the admission in proceedings which it
subsequently institutes against the insured.40 In such a case, however, the practitioner
would be under a duty to make it clear to the insured at the outset that any admissions
he might make could be passed on to the insurance company.
When otherwise confidential information may be disclosed

There are circumstances in which a legal practitioner can, and sometimes must, dis-
close confidential information. Some of these circumstances are obvious, some are
not:
 A legal practitioner may disclose confidential information with the client’s con-
sent. As with privilege, the right to confidentiality vests in the client (the client
has a right to have his or her affairs kept confidential and the legal practitioner has
a corresponding duty to not to disclose information about the client’s affairs).
Hence the client can release the practitioner from that duty.
 Disclosure of confidential information may also be made when disclosure is an in-
herent part of the performance of work on behalf of the client. It may be said that
by engaging the practitioner to perform the work the client has impliedly consen-
ted to the disclosure. Discovery of documents, for example, is an inherent part of
handling litigation, so long as the documents are not privileged, so a practitioner
who is conducting the litigation on behalf of the client may disclose their contents
through the process of discovery. But even here, if the legal practitioner thinks
the client may object to disclosure, he should check with the client and, if the cli-
ent does object, he may have to withdraw from the matter if, in his view, disclos-
ure is legally necessary or if non-disclosure would be dishonourable.
39
In England it is regarded as confidential, apparently. See Principle 12.05 of the Guide to the Profes-
sional Conduct of Solicitors (1990), published by the Law Society, London.
40
Kelly v Pickering & Anor (1) 1980 ZLR 44 (G); 1980 (2) SA 753 (R).
59
 A legal practitioner may give evidence regarding privileged matters only with his
client’s consent, but he does not need such consent if called upon to give evidence
regarding a confidential (but not privileged) matter. In such a case, however, he
or she should at least notify the client concerned before giving the evidence.
 A legal practitioner must hand over documents if required to do so by a search
warrant unless the documents are privileged, in which event they cannot be seized
under a search warrant and should not be handed over. 41 Where a practitioner
hands over non-privileged documents to the police in compliance with a search
warrant, he or she must inform the client without delay. In the absence of a search
warrant, a legal practitioner should not give access to non-privileged but confiden-
tial information to the police or other official investigators without the consent of
the client.
 Information about a client (apart from mere gossip) may be disclosed to the legal
practitioner’s partners, but they must all keep the information confidential.
 Where a client communicates with a legal practitioner before the commission of a
crime with a view to being guided or helped in committing it, the communication
falls outside the scope of the practitioner’s lawful mandate and so is not confiden-
tial. The practitioner may therefore disclose it. 42 This is so even if the practitioner
was not aware of the illegal object of the communication.43
 A legal practitioner may reveal confidential information to the extent that it is
reasonably necessary to establish a defence to a criminal charge or a civil claim or
disciplinary action which has been instituted against the practitioner.44
 A legal practitioner may reveal information that would otherwise be confidential
to the extent that he believes necessary to prevent the client from committing a
crime which he believes on reasonable grounds is likely to result in death or seri-
ous bodily harm.45 The practitioner must be very careful about revealing such in-
formation, however, and should do so only in the clearest and most pressing cir-
cumstances; furthermore, he or she should not disclose more information than is
required to avert the harm that will be caused by the crime.
41
The South African case of Andresen v Minister of Justice 1954 (2) SA 473 (W), which held that priv-
ileged documents could be seized, was probably wrongly decided. See Sasol III (Edms) Bpk v Minister
van Wet en Orde & Anor 1991 (3) SA 766 (T) and Jeeva & Ors v Receiver of Revenue, Port Elizabeth,
& Ors 1995 (2) SA 433 (SE) at 452 and the cases there cited.
42
citors (1990), published by the Law Society, London. See R v Cox & Railton (1884) 14 QBD 153 at
167 and Minter v Priest [1930] AC 558 (HL) at 581.
43
Waste Products Utilisation (Pty) Ltd v Wilkes & Anor 2003 (2) SA 515 (W) at 551H-552A and the
authorities there cited.
44
citors (1990), published by the Law Society, London. See also Masulani v Masulani 2003 (1) ZLR 491
(H) at 497-8.
45
This statement is based on para 8 of the commentary to Principle 12.04 of the Guide to the Profes-
sional Conduct of Solicitors (1990), published by the Law Society, London. In the USA professional
people have been held liable for failing to warn against serious crimes which they know or suspect will
be committed by their clients or patients. See “Blowing the Whistle?” by L. Forer in The Responsible
Judge ed J.T. Noonan and K.I. Winston (1993) Praeger USA. Legal practitioners in Zimbabwe would
probably be liable in similar circumstances, so long as the requirements for delictual liability (i.e. liabil-
ity under the Lex Aquilia) were met. See also Chapter IX, Rule 2Guiding Principle 3.3-3 of the Cana-
dian Bar Association’s Model Code of Professional Conduct.
60
 Under section 30 of the Money Laundering and Proceeds of Crime Act [Chapter
9:24], legal practitioners who suspect that transactions they are dealing with on
behalf of their clients involve money-laundering or terrorism must report their sus-
picions to the Bank Use Promotion and Suppression of Money Laundering Unit of
the Reserve Bank. They do not have to do so, however, if their suspicions are
based on information they received in the course of ascertaining their clients’ legal
position or in representing the clients in judicial, administrative, arbitral or medi-
ation proceedings, or in advising the clients about such proceedings. 46 If they do
make a report they should advise their clients.
Conflict of interest
A legal practitioner must ensure that he does not have any interest (material or moral)
which is adverse to his client’s interest. However, he may continue to act for a client
despite a conflict of interest if he has fully disclosed the interest to the client and the
client, with full understanding of the disclosure and its implications, has consented to
the practitioner’s acting in the matter. It goes without saying, though, that if he hon-
estly feels he will not be able to act in the client’s best interests because of the con -
flict, he should not even try to get the client’s consent but should withdraw immedi-
ately.
Practitioners must ensure that when acting for one client they do not prejudice the in-
terests of another. For example, a practitioner who has acted for a debtor cannot nor-
mally act for a creditor who wishes to obtain a sequestration order against the
debtor47, and a practitioner who has taken instructions from one party to divorce pro-
ceedings cannot thereafter act for the other party. 48 And a practitioner who has been
called upon as a mutual friend to mediate in a dispute between husband and wife can-
not thereafter represent the husband or the wife in divorce proceedings after his at-
tempts at mediation have failed.49
A legal practitioner who has acquired information when acting for a former client can-
not disclose that information or use it against the former client. So if a new client
asks him to institute proceedings against the former client, and the information he has
previously acquired is relevant to those proceedings, the practitioner is placed in an
impossible position: he is duty-bound to tell the new client everything he knows
about the matter, but at the same time he cannot disclose the relevant information be-
cause it is confidential. So the practitioner must ask the new client to instruct another
practitioner.
A legal practitioner who is a member of a public body (for example, a local authority
or a disciplinary committee of a professional body) should not appear professionally
representing a client before that body, and should not advise a client on the legality of
a decision made by that body. Even after the practitioner has ceased to be a member
46
Section 30(2)(b) of the Act.
47
Kirkwood Garage (Pty) Ltd v Lategan & Anor 1961 (2) SA 75 (E).
48
Mutanga v Mutanga 2004 (1) ZLR 487 (H). If a legal practitioner agrees to act for one party in such
circumstances, the contract is contrary to public policy and void: Retha Meiring Attorney v Walley
2008 (2) SA 513 (D).
49
Macheka v Moyo 2003 (2) ZLR 49 (H) at 55. See also para 2 of the commentary to Principle 11.01
of the Guide to the Professional Conduct of Solicitors (1990), published by the Law Society, London.
Apart from the conflict of interest in such a case there is, of course, considerable potential for the mis -
use of confidential information.
61
of the body, he should not advise clients on the legality of decisions made by the body
while he was a member.50
Conflicting interests include the interests of associates such as partners or family; or
the interests of an existing client; or the need to preserve a former client’s confid-
ences; or cases where the legal practitioner is in a position where he would be duty
bound to divulge the client’s confidences. And when considering whether there is a
conflict of interests, a practitioner’s partners are to be equated with him: for example,
it is improper for a member of a firm of practitioners to represent an insolvent who is
applying for rehabilitation if another member of the firm is the insolvent’s trustee. 51
Practitioners must not attest affidavits that are to be filed in court proceedings in
which they are representing a party; that is to say, if they are preparing papers for an
application that a client is instituting or defending, they cannot attest affidavits which
are to be filed in the application. 52 The reason is that a commissioner of oaths who at-
tests an affidavit must be impartial, unbiased and independent in relation to the sub-
ject-matter of the affidavit. The same goes for certificates of urgency: a practitioner
must not sign a certificate of urgency for a client who is being represented by him or
by his or her firm because the practitioner clearly has an interest in the matter at
hand.53
Where a legal practitioner acts in a matter in which he or she has a conflict of interest,
affidavits he or she draws up for a client are liable to be struck out.54
Exceptions:
1. large corporations often spread their legal work round several firms, and in
such cases a member of a firm that deals with, say, conveyancing work for an
insurance company need not refuse to act for a client who wishes to sue that
company under a life policy.
2. If an existing client engages another practitioner to deal with a matter, there is
no conflict of interest in the practitioner acting for the other side in that mat-
ter, so long as he or she does not have relevant confidential information about
that existing client.
3. If the conflict emerges when the legal practitioner has already been engaged
in the matter, it may be more prejudicial to the client for the practitioner to
withdraw than to continue. In such a case, so long as there is full disclosure
by the practitioner and informed consent by the client, the practitioner can
continue to act.
Conflict: acting for both parties

The general principle is that where there is a dispute between parties, the same legal
practitioner or firm cannot act for both parties; but where there is no dispute the dual
role may be performed under certain safeguards.
50
Paragraphs 5 and 6 of the commentary to Chapter X of the Canadian Bar Association’s Code of Pro-
fessional Conduct.
51
Ex parte Venter 1935 (1) PH C44 (C). See also Pertsillis v Calcaterra & Anor 1999 (1) ZLR 70 (H).
52
Section 2(1) of the Justices of the Peace and Commissioners of Oaths (General) Regulations, 1998
(SI 183 of 1998) and Manyika v Manyika 1983 (2) ZLR 198 (H).
53
Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 299 (H).
54
Base Minerals Zimbabwe (Pvt) Ltd & Anor v Chiroswa Minerals (Pvt) Ltd & Ors 2016 (1) ZLR 78
(H).
62
In non-contentious matters, such as drawing up a sale agreement, a practitioner may
act for both sides, subject to the following safeguards:
 He must disclose to each party his relationship with the other.
 He must explain to each party the potential problems (conflict of interests)
surrounding the representation of both parties.
 There must be no likelihood of a conflict arising between the two parties, un-
less they have agreed to accept the practitioner as a mediator.
 There must be full and free consent by the parties to his representing them,
given with full understanding of what is involved.55
 If one of the parties is a regular client and the other a newcomer, the legal
practitioner should firmly propose that the newcomer be represented by an-
other practitioner and, if necessary, should assist him in obtaining one.
 He must obtain the parties’ agreement to his disclosing confidential informa-
tion obtained from one of them to the other.
 If at any stage he feels that the matter may become contentious between the
parties, he must cease to act for either party.
A legal practitioner must not act for the other party in any matter in which he himself
is directly or indirectly interested56, if there is a conflict or potential conflict of interest
between himself and the other party. The same applies where the conflict or potential
conflict of interest is not between himself and the other party, but between his partner
or member of his family and the other party.
Acting for co-accused in a criminal case can cause difficulties if, in the course of the
trial, their interests diverge. Generally one should try to avoid having to act for both
co-accused in such circumstances. A legal practitioner who finds that there is a con-
flict in the defence of two accused whom he is representing must immediately with-
draw from the defence of one of them, allowing himself free rein to defend the other. 57
But if the practitioner has acquired information about one of the accused which is
likely to be relevant to the defence of the other, that information is confidential and
cannot be used. In such circumstances the practitioner should withdraw completely
from the case.58 The practitioner could also consider asking for a separation of trials,
to avoid the duty of cross-examining his former client.59
Improper business or financial dealings

The general rule is that a legal practitioner acts improperly if, in undertaking or pursu-
ing any business or financial dealing on his own account, he makes use of confidential
information which he has acquired when engaged in the affairs of any of his clients. 60
There are exceptions:
55
Though in some cases it is improper even to seek that consent: Towers v Chitapa 1996 (2) ZLR 261
(H) at 276D–E.
56
A practitioner would be indirectly interested in a matter, for example, if his business interests lead
him to recommend that a client invest in a company in which the practitioner has an interest.
57
S v Jacobs & Anor 1970 (3) SA 493 (E).
58
S v Moseli & ʼn Ander (1) 1969 (1) SA 646 (O) and S v Dintwe & Anor 1985 (4) SA 539 (B GD)
59
R v Chisvo & Ors 1968 (2) RLR 54 (A).
60
Society, London puts it succinctly: “A solicitor must not make any profit by the use of confidential in-
formation for his own purposes.”
63
 Where the whole of the information is already public knowledge and the cli-
ent is either aware of what the practitioner is doing or could not possibly
have any reasonable objection to it;
 Where the whole of the information is not public knowledge but the client
consents to what is being done with full knowledge and understanding of its
implications.
The client is entitled to expect disinterested advice from the legal practitioner, and this
will be compromised if the practitioner has or acquires a personal interest in the mat-
ter.61
The client must feel free from any inhibitions in consulting the legal practitioner and
must be certain that all his confidences will be respected and never used in any service
except his own.
If a legal practitioner makes a profit in the course of business conducted on behalf of a
client, the practitioner must account to the client for that profit: that is, the practi-
tioner must disclose the profit and either pay it to the client or set it off against any
amount the client owes the practitioner. This is in accordance with the ordinary law
of principal and agent; it is also reinforced by paragraph 3(42) of the Schedule to the
Legal Practitioners (Code of Conduct) By-laws, 2018.62
Contracts between legal practitioner and client

The English rule, that contracts between a legal practitioner and his client are pre-
sumed to have been entered into through the practitioner’s undue influence, does not
apply in this country.63 Nevertheless, practitioners must be wary of entering into con-
tracts with their clients because there is always a danger that, if the contractual rela-
tionship sours, the client will claim that the practitioner took undue advantage of the
professional relationship between them. This does not apply to:
 The contract establishing the legal practitioner-client relationship;
Run-of-the-mill contracts entered into in the ordinary course of the client’s
business (e.g. if the client is a shopkeeper, sales to the practitioner at the
shop; or if the client is a bank, the keeping of the practitioner’s funds at the
bank).
Practitioners should not accept gifts from their clients, unless the gifts are trivial in
value.
Improper acts of client

A legal practitioner must not participate in or support his client in anything unlawful
in which the client is engaged or contemplates engaging. He must not assist the client
to break the law and must impress on clients the need to abide by the law. A legal
practitioner who has agreed to act for a client is under a duty to observe the rules of
61
See I.B.A. International Code of Ethics, rule 12: “Lawyers should not acquire a financial interest in
the subject matter of a case which they are conducting.”
62
Statutory instrument 37 of 2018. The Schedule to the S.I. is set out in Appendix 4.
63
Christie Business Law in Zimbabwe (Juta & Co Ltd, 1985) p. 88; Miller v Muller 1965 (4) SA 458
(C) at 463A-E. In English law the presumption is rebutted if the client has taken adequate independent
legal advice before entering into the contract (see Principle 11.05 of the Guide to the Professional Con-
duct of Solicitors (1990), published by the Law Society, London).
64
professional conduct, and the client must accept the limitations imposed by those
rules. Anything more is outside the practitioner’s lawful mandate.
What has been said in the previous paragraph applies also to conduct which, though
legal, is dishonourable — e.g. the instituting of proceedings not for asserting a right
but in order to satisfy revenge and malice, which will usually amount to abuse of pro-
cess. A legal practitioner should not assist his client in getting an unfair advantage
over another person, though there is obviously a grey area between assisting the client
to assert his lawful rights and obtaining an unfair advantage over someone else. 64 A
practitioner can also refuse to assist a client to do something which, by his personal
code of ethics, is dishonourable.
A legal practitioner should not advise a client on ways to circumvent the law by creat -
ing contracts and the like whose real import is different from their superficial appear-
ance: e.g. if the owner of a property is not allowed to sell it, he must not be assisted in
disguising a sale as a lease.
Once a legal practitioner is engaged in a matter, he has a duty to advise his client as to
the law, even if the client wishes to engage in conduct which the practitioner regards
as dishonourable. For example, if the client wants to resile from a contract which he
should honourably abide by, the practitioner must give proper legal advice on the is-
sue.
What practitioners must ask themselves in such cases is: is my conduct consistent
with honesty and fair dealing?
Criminal cases: defending the admittedly guilty

If an accused person in a criminal case admits to his legal practitioner that he commit -
ted the crime, but insists that he will not plead guilty, what is the practitioner’s duty?
There are two views on this, but before we deal with them we must be clear that the
question arises only if the legal practitioner actually knows, rather than merely sus-
pects, that the client is guilty. This will be the case if the client confesses his guilt to
the practitioner and the practitioner is satisfied that the confession is both genuine and
correct — i.e. that the client is telling the truth and that there are no defences open to
him. If the practitioner merely suspects that the client is guilty, even if the suspicion
is so strong as to amount almost to a certainty, then the practitioner cannot be said to
have knowledge of the client’s guilt, and the practitioner can and indeed should try to
present the client’s defence to the court in the best possible way. Before doing so,
however, the practitioner should tell the client, tactfully and kindly, that he (the practi-
tioner) does not believe the client’s story and that he does not think the court will do
so either; hence it might be in the client’s best interests to plead guilty and get the be -
nefit of a lenient sentence.
That said, we revert to the original question: can a legal practitioner represent a client
who has confessed a crime but who refuses to plead guilty?
Must the practitioner withdraw?

One answer to this question was expressed by a former Chief Justice, MacDonald CJ,
in an address to the Law Society.65 He contended that if a defending lawyer had a
confession from his client, he could not proceed with the case unless the client
64
See Van Zyl The Theory of the Judicial Practice in South Africa (1921) at p. 42, cited in Barlow
Rand Ltd v Lebos & Anor 1985 (4) SA 341 (T) at 347-8.
65
Reprinted in 1977 RLJ 115.
65
pleaded guilty. The lawyer had to try to persuade the client to plead guilty, and if the
client refused to change his mind then the lawyer had to withdraw from the case.
The argument for this view is that if a court acquits an accused person who is in fact
guilty there is a miscarriage of justice, and a lawyer who tries to secure the acquittal
of a guilty person is conniving at a miscarriage of justice contrary to his duty to up-
hold the law. This view certainly coincides with ideas of right and justice that are
held by many members of the public. In England as long ago as 1840, following a
sensational trial in which a barrister (a Mr Phillips) strenuously defended an accused
murderer who had confessed his guilt to Phillips, a member of the public wrote a
strong letter to The Times newspaper:
“Sir, — After reading the eloquent and impassioned address of Mr. C. Phillips in defence
of Courvoisier [the murderer], a doubt suggested itself to my mind whether a profession
in which a man employs his talent ‘to screen the guilty, and to varnish crime’, can be
considered honourable. …
I seek not to impeach Mr. Phillips’ character, which, from report, I believe to be of a
high order, nor that of counsel in general pursuing the same line of conduct. They may
be, and possibly are, ‘all honourable men’, but ... I am simple enough to consider that
he who defends the guilty, knowing him to be so, forgets alike honour and honesty, and
is false to God and man!”66
May the practitioner represent the guilty client?

The view expressed by the letter-writer is not the prevailing one in the legal profes-
sion. It is accepted practice here and in South Africa and the United Kingdom 67 that a
lawyer may continue to represent the client even if he insists on pleading not guilty.
The lawyer must first make sure that the client is indeed admitting the offence and
that his admission is not based on a mistaken understanding of the law or the facts.
The client may, for example, admit to having committed murder without realising he
could be exonerated through having acted in self-defence. If the lawyer is satisfied
that the client’s admission is a genuine one, he may allow the client to plead not guilty
(which the client is entitled to do) but cannot allow evidence to be adduced which
would conflict with the client’s admission. What the lawyer may do in such circum-
stances is set out in the following passage from the Canadian Bar Association’sModel
Code of Professional Conduct:
“[I]f the accused clearly admits to the lawyer the factual and mental elements necessary to
constitute the offence, the lawyer, if convinced that the admissions are true and volun-
tary, may properly take objection to the jurisdiction of the court, or to the form of the in-
dictment, or to the admissibility or sufficiency of the evidence, but must not suggest that
some other person committed the offence, or call any evidence that, by reason of the ad-
missions, the lawyer believes to be false. Nor may the lawyer set up an affirmative case
inconsistent with such admissions, for example, by calling evidence in support of an alibi
intended to show that the accused could not have done, or in fact had not done, the act.
Such admissions will also impose a limit upon the extent to which the lawyer may attack
the evidence for the prosecution. The lawyer is entitled to test the evidence given by
each individual witness for the prosecution and argue that the evidence taken as a whole
66
The trial was that of a man called Courvoisier who was charged (and ultimately convicted) of mur-
dering his employer. The letter is quoted by Zitrin & Langford Legal Ethics in the Practice of Law
(1994) Contemporary Legal Education Series.
67
See para 5 of the commentary to Principle 14.14 of the Guide to the Professional Conduct of Solicit-
ors (1990), published by the Law Society, London.
66
is insufficient to amount to proof that the accused is guilty of the offence charged, but the
lawyer should go no further than that.”68
The legal practitioner must explain all this to the client. In addition, where the trial is
to be held in a magistrates court, he must explain that under sec 188 of the Criminal
Procedure and Evidence Act [Chapter 9:07] the defence is required to file a document
outlining the nature of the defence and the material facts on which the defence relies,
and that the court may draw adverse inferences from a failure to file such a document.
In the circumstances it may not be possible for the practitioner to file such a defence
outline. And similarly, if the trial is to be held in the High Court the practitioner may
find it difficult to give an outline of the client’s defence in terms of sec 66 of the
Criminal Procedure and Evidence Act, in the absence of which the court may draw
adverse inferences. Furthermore, in all criminal trials the accused is liable to be ques-
tioned by the court and the prosecutor even if he declines to give evidence, and a fail-
ure to answer their questions may be held against him. 69 All this must be explained to
the client.70
The legal practitioner must remember that he “may not assert that which he knows to
be a lie. He may not connive at, much less attempt to substantiate, a fraud.”71
The justification for thise view that lawyers may represent admittedly guilty clients is
that even guilty people are entitled a fair trial. It is not enough for a court to reach a
factually correct verdict in a criminal case: if the trial has been unfair, i.e. procedur-
ally unfair, then there has been a miscarriage of justice regardless of the verdict. One
of the essential features of a fair trial is what an English judge famously called “the
golden thread” running through our law: that it is for the prosecution to prove the ac-
cused’s guilt beyond a reasonable doubt.72 If the prosecution’s evidence does not
prove the accused person guilty to that level of proof — beyond a reasonable doubt —
then the accused must be acquitted even if he actually committed the crime. Anything
else is procedurally unfair. It must be remembered that the presumption of innocence
‒ a presumption enshrined in section 70(1)(a) of the Constitution ‒ applies to all ac-
cused persons before their trial, including those who are in fact guilty of the crime
with which they are charged. It is therefore legitimate for a lHence legal practitioners
representing an accused persons may legitimately to test the prosecution evidence to
see if it meets the necessary level of proof to rebut the presumption of innocence, and
if it does notmay to argue for their accused’s clients’ acquittal if it does not meet that
level ‒ and they may do so even if the clients have privately admitted their guilt. By
representing clients in this way In doing so the legal practitioner iss are doing his or
hertheir duty to the legal system by ensuring that even a guilty persons gets a fair trial.
Improper threats
68
Paragraph 11 of the Commentary [10] to the rule stated in Chapter IX of the CodeGuiding Principle
5.1-1.
69
Sections 198(9) and 199 of the Criminal Procedure and Evidence Act [Chapter 9:07].
70
It should be noted that the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07] al-
lowing courts to draw adverse inferences from an accused person’s failure to file an outline of his or
her defence, and allowing the questioning of accused persons who have declined to give evidence, are
probably unconstitutional in view of the Constitution’s guarantee of the right to silence in sections 50
and 70.
71
Rondel v W [1966] 1 All ER 467 (QB) at 479.
72
Viscount Sankey in Woolmington v DPP [1935] AC 462 (HL).
67
A legal practitioner must not seek to advance his client’s cause by issuing threats of
injury (in a wide sense) to anyone. An expression of a firm and lawfully conceived
intention is not an improper threat, even though it has a threatening aspect. So in the
course of discussing a settlement between competing groups in a private company it is
not improper for a legal practitioner to say that his client will apply for the company
to be wound up if the dispute is not settled.
Much depends on the way in which a threat is uttered. It is not easy to define what is
an improper threat; it is easier to give examples of them.
Illegal threats: These obviously must not be made. A threat that amounts to extortion
or blackmail, or a threat of illegal harm, is obviously improper. Even a threat to re-
port a thief to the police if he doesn’t pay back what he has stolen is illegal, since it
amounts to compounding.73 But if the thief offers to pay back the money in consider-
ation for not prosecuting him, the legal practitioner can probably advise his client to
accept the offer.
Using costs as a threat: While it may be permissible to point out to the other side
when negotiating a settlement that if there is no settlement further costs will be in-
curred, it is improper to say: “My client will take this case all the way to the Supreme
Court if necessary, and while he can well afford the costs it will ruin you (the oppon-
ent).”
Exposure of past misconduct: It may be improper to state that an opponent’s past mis-
conduct will be brought out if the case goes to trial. It will be improper if the state-
ment goes beyond a warning and becomes a threat.
Threatening children’s interests: It would be improper for a legal practitioner, repres-
enting a husband in a divorce action, to try to get the wife to agree to a settlement by
threatening to claim custody of the children.
Improper claims: It is improper to make a claim unless it appears to the legal practi-
tioner prima facie that the claimant has some right to what is claimed. Conversely, it
is improper to resist a manifestly just claim. But, with the approval of the client, a
practitioner can make a claim that has prescribed, since prescription has to be spe-
cifically pleaded and cannot be raised mero motu by the court.
Excessive demands: Grossly excessive demands should not be made, though in claim-
ing general damages one should err on the side of excess rather than pitch the claim
too low.
Generally, when writing a letter of demand, a legal practitioner should not demand
anything beyond what is recoverable under due process of law, nor should he threaten
the debtor with anything other than court action if the debt is not paid. For example,
he should not threaten to report the matter to the debtor’s employer or to the press.74
Settlements and compromises
73
Compounding a crime is an arrangement under which a person injured by a crime agrees to refrain
from prosecuting the offender, or reporting the offender to the police, on condition the offender pays or
gives him or her a reward or other consideration. Under the common law compounding was a crime.
It is now punishable as defeating or obstructing the course of justice in terms of section 184(1)(h) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23].
74
Society, London.
68
A legal practitioner’s general authority to act for a client probably extends to com-
promising or settling the client’s case even if the client has not given the practitioner
specific authority to do so:
“Counsel properly instructed to appear on behalf of a litigant has implied authority to
conclude a settlement of the litigation on behalf of his or her client, provided that he or
she acts bona fide in the interests of the client and not contrary to specific
instructions. ... An instructing attorney of record stands in the same position at any stage
prior to the assumption of control of the matter by counsel ... , but subject to the caveat
that that the matter does not involve any matter collateral or extraneous to the action.” 75
A party to litigation can limit his practitioner’s authority to agree to a compromise or
settlement, but unless the other party has been informed of that limitation, whether ex-
pressly or by implication, the party is bound by any settlement the practitioner may
negotiate in breach of his instructions.76 If, in the face of such a limitation, a practi-
tioner does exceed his instructions and negotiate a settlement, he will be personally li-
able to his principal for any loss the principal may suffer.
Even though he may have general authority to do so, therefore, a legal practitioner
would be most unwise to settle a case without the client’s specific consent.
On the other hand, practitioners should always encourage the settlement of contested
cases because it is usually in the interests of the contestants that there should be a set-
tlement rather than that matters should proceed to trial and judgment.
The I.B.A.’s International Code of Ethics states in Rule 11:
“Lawyers shall, when in the client’s interest, endeavour to reach a solution by settlement
out of court rather than start legal proceedings. Lawyers should never stir up litiga-
tion.”
And the Canadian Bar Association’s Model Code of Professional Conduct states:
“Whenever the case can be settled reasonably, theA lawyer should must advise and en-
courage thea client compromise or settle a dispute whenever it is possible to do so
rather than commence or continue legal proceedingson a reasonable basis ....”77
On being offered a settlement, a practitioner must inform the client of the offer and
advise on it.
The client’s interests, not the practitioner’s, must dictate the decision to settle. In ne-
gotiating a settlement, the practitioner must not try to cheat the opposing side or em-
ploy unfair tactics. He must conduct the negotiations with honourable candour,
though with due regard to the confidentiality of information that his client has given
him.78 The practitioners on both sides should ensure that each of them understands
the negotiations are without prejudice.79
75
Ivoral Properties (Pty) Ltd v Sheriff, Cape Town & Ors 2005 (6) SA 96 (C) at 119 D-F. See also
MEC for Economic Affairs, Environment & Tourism v Kruisenga & Anor 2008 (6) SA 264 (Ck HC) at
294-296 and Klopper v van Rensburg 1920 EDL 239
76
MEC for Economic Affairs, Environment & Tourism v Kruisenga & Anor 2008 (6) SA 264 (Ck HC)
77
Chapter IX, Guiding Principle No. 8Principle 3.2-4.
78
But see Pocock v AFC 1995 (2) ZLR 367 (S), where the court noted that lawyers had deliberately
prolonged settlement negotiations, when they were aware that the lawyers on the other side were un-
aware of looming prescription of their claim. The court said this conduct could not be described as un -
ethical.
79
Statements made “without prejudice” in the course of negotiations to settle a dispute cannot be dis -
closed in evidence without the consent of all parties. See Hoffmann & Zeffertt S.A. Law of Evidence
4th ed p. 196ff.
69
If a settlement is reached after judgment has been reserved, the legal practitioners in-
volved must advise the court through the registrar or clerk of court. 80 It is improper to
allow the judicial officer to deliver judgment in ignorance of the fact that the matter
has been settled.
Change of practitioner by client

A client can terminate the legal practitioner-client relationship at any time. This ap-
plies even where the client is compelled to engage a particular practitioner, e.g. if he
is an insured who is bound by the insurance policy to be represented by a practitioner
chosen by the insurance company. If the insured decides to go to another practitioner,
the insurance company’s practitioner must allow him to do so: any consequences res-
ulting from the insured’s breach of the insurance policy are for the insured and the in-
surance company to sort out, and the most the insurance company’s practitioner can
do is to point out to the insured what those consequences are — and he should point
them out, because he has a duty to advise the insured, as his client, of the possible
consequences of his action.
Upon termination of his mandate, a legal practitioner is entitled to recover all proper
fees and disbursements payable up to the time of termination. The practitioner must
account to the client for all money held for the client in the practitioner’s trust ac-
count, and must hand over the client’s papers in accordance with the client’s instruc-
tions — this usually means handing them over to the client’s new practitioner. But
the discharged practitioner has a lien on all papers which he prepared for the client
(not on any other papers) as security for the payment of his costs, so he can retain
those until his fees are paid. It is improper to claim a lien over any other papers or to
refuse to hand over those other papers.
The discharged practitioner also has a duty to assist his successor with all proper in-
formation, including confidential information if the client so consents, to facilitate the
successor’s pursuit of the client’s case.
The successor legal practitioner must refer to the discharged practitioner before ac-
cepting the client’s instructions. This is because (1) the discharged practitioner must
not be left in doubt as to whether he has been discharged; and (2) so that the suc-
cessor can satisfy himself that the discharged practitioner has been paid what is due to
him. If he has not, the successor is expected to help his predecessor in recovering
what is fairly due, i.e. to refuse to take on the client until the predecessor has been
paid.
This applies only to work in hand. If a new practitioner is engaged to do fresh work,
he has no duty to consult his predecessor.
Change of practitioner by legal practitioner

When a legal practitioner has accepted an engagement to handle a matter for a client,
he is under a duty to see it through to conclusion to the best of his ability and not to
withdraw without good reason, except with the client’s free and entirely willing con-
sent. The Law Society (Code of Conduct) By-laws, 2018, provide that it is unprofes-
sional, dishonourable or unworthy conduct for a practitioner to cease to act for a client
or renounce agency on behalf of a client “without good cause and without having first
explained to the client his or her reasons” or “in such a manner as to cause undue and
80
In relation to appeals, this is stated in rule 9(2) of the Rules of the Supreme Court, 1964 (RGN 380 of
1964).
70
unexpected prejudice to the client, due regard being ad to such prejudice as would
otherwise be caused to the legal practitioner.”81
Circumstances in which legal practitioners may or must withdraw from representing a
client have been mentioned elsewhere in these notes. Further legitimate reasons for
withdrawal include:
 improper conduct on the part of the client, e.g. giving false evidence; trying
to get the legal practitioner to act contrary to his professional duty; or fraud
or false representation;
 personality clash with the client, resulting in the practitioner being unable to
do his best for the client. In such a case the practitioner should hesitate to
claim a fee from the client and must try to assist the client to get other repres-
entation;
 inability to obtain clear instructions from the client;
 refusal by the client to accept the practitioner’s advice;
 the client’s failure to provide funds to continue with the matter. But the fact
that the client has not provided funds should not be disclosed to the court,
and if the practitioner renounces agency for that reason, he should inform the
client of his rights;82
 the client hindering or preventing the practitioner from conducting the case;
 insolvency, death or liquidation of the client.
A practitioner who terminates his relationship with a client for inadequate reason is
not entitled to his fees.83
Where it is the legal practitioner who terminates the lawyer-client relationship, the
same position applies regarding the lawyer’s files as obtains when the client termin-
ates the relationship.
A legal practitioner cannot renounce agency in an appeal more than three weeks after
it has been set down for hearing, or without giving at least a month’s notice to the Re -
gistrar and the client and the other parties to the appeal. 84 A legal aid practitioner can-
not renounce agency without the leave of the court.85
81
82
S v Martin 1988 (2) ZLR 1 (S), where the practitioner had renounced agency before the hearing of an
appeal and had informed the court that he had done so because he had not been put in funds, and fur-
ther failed to tell the client (the appellant) that he had no right of audience before the Supreme Court.
83
Goodricke & Son v Auto Protection Insurance Co Ltd 1968 (1) SA 717 (A).
84
Rule 12A of the Rules of the Supreme Court, 1964.
85
Masanga & Anor v Zita & Anor 1999 (2) ZLR 94 (H) at 97.
71
6. DUTIES OWED BY LEGAL PRACTITIONERS TO THIRD PARTIES
The practitioner-client relationship imposes a duty on the legal practitioner to advance
his client’s interests, even where it will cause harm to the opposite party to do so, and
if harm is caused to the opposite party a legal practitioner will generally incur no liab -
ility since he is not a guardian of that party’s interests. But he must not advance his
client’s interests at all costs: the legal practitioner-client relationship will not protect
him against liability for unlawful conduct such as fraud.
A practitioner has been found liable to an intended beneficiary of a client’s will which
the practitioner drew up negligently so as to deprive the beneficiary of a legacy which
the client-testator intended him to have. 1 A practitioner may also be liable to persons
who he knows are relying on his skill to save them from harm. This is the so-called
“assumption of responsibility” test.2 There is no reason in principle why a lawyer
should not be liable under the Lex Aquilia for negligence to a third party so long as all
the elements of Aquilian liability are present.3
There is no all-embracing test as to when a practitioner may be liable towards third
parties: the question of wrongfulness depends on legal policy.4
1
White v Jones [1995] 2 AC 207 (HL)
2
Dutton v Bognor Regis UDC [1972] 1 QB 373 (CA), cited in Road Accident Fund v Shabangu &
Anor 2005 (1) SA 265 (SCA) at 272D.
3
Maketo & Anor v Wood & Ors 1994 (1) ZLR 102 (H) at 125C. See also Tinarwo v Hove & Ors 2003
(2) ZLR 148 (H) (HH-138-03).
4
Road Accident Fund v Shabangu & Anor 2005 (1) SA 265 (SCA) at 271-2.
7. DUTIES OWED BY LEGAL PRACTITIONERS TO THE PROFESSION
AND TO TO OTHER
PRACTITIONERS AND TO THE PROFESSION
Generally
The Legal Practitioners (Code of Conduct) By-laws, 2018, lists the following as un-
professional, dishonourable or unworthy conduct for a legal practitioners:
“Engaging in conduct that is likely either to diminish public confidence in the legal pro-
fession and/or the administration of justice or to bring the legal profession into disrep-
ute.”1
“Failing or neglecting to treat professional colleagues with courtesy, respect and fair -
ness.”2
These two provisions briefly encapsulate legal practitioners’ duties towards the pro-
fession and fellow practitioners. Other codes of conduct go into more detail. Thus
tThe I.B.A. International Code of Ethics states in rule 4:
“Lawyers shall treat their professional colleagues with the utmost courtesy and fairness.
Lawyers who undertake to render assistance to a foreign colleague shall always keep in
mind that the foreign colleague has to depend on them to a much larger extent than in
the case of another lawyer of the same country. Therefore their responsibility is much
greater, both when giving advice and when handling a case.”
And the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London, states in Principle 16.01:
“A solicitor must act towards other solicitors with complete frankness and good faith con -
sistent with his overriding duty to his client.”
A legal practitioner must act fairly towards other practitioners, particularly those who
represent the other party in litigious matters, no matter how bitter the feeling may be
between their respective clients. He must never take unfair advantage of his opposing
practitioner. If he says he will not do something, e.g. call a particular witness, then he
should not suddenly do so and surprise his opponent. Also, if a practitioner arrives in
court and his opponent is not present when the case is called, the practitioner should
not ask for judgment and costs but instead ask the court for a few minutes’ adjourn-
ment to allow him to phone the opponent. Or if his opponent has not pleaded, he
should warn the opponent before barring him. 3 A practitioner who applies for default
judgment despite a clear indication that his opponent does intend to defend the matter,
in circumstances in which he may be accused of “snatching at a judgment”, may well
find that his client is penalised by being made liable for the costs of any unnecessary
proceedings generated by the practitioner’s deviousness or pigheadedness.4
Duties towards partners and employees

A legal practitioner has the same duties towards his partners in the practice as all part -
ners owe each other: he must exercise the utmost good faith in all partnership transac-
tions; and he must account to his partners for any benefit or advantage or profit which
1
2
3
Lecture by Mr Justice McNally to final-year law students, 17.8.1993.
4
See Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) at 403E‒F and Founders
Building Soc v Dalib (Pvt) Ltd & Ors 1998 (1) ZLR 526 (H).
he has made in any transactions which are within the scope of the partnership business
(i.e. the legal practice), or which are in competition with, or injurious to, the partner-
ship business.5
According to paragraph 3(32) of the Schedule to the Legal Practitioners (Code of
Conduct) By-laws, 2018,6 legal practitioners must run their firms in a way that en-
courages equality of opportunity and respect for diversity. While this is admirable, it
is not entirely clear how far the paragraph limits practitioners’ freedom of association,
i.e. their right to choose their partners.
Where a legal practitioner merges his practice with that of another legal practitioner,
the files are held by the new merged practice, and if the practitioner subsequently
leaves the merged practice he has no right to take the files with him unless the clients
have consented to his doing so.7
By-passing practitioner for other party

When acting for a client in a matter, a legal practitioner should not communicate dir-
ectly with a party whom he knows is represented by another practitioner in that mat -
ter, unless that other practitioner has consented.8 He should not even discuss the case
socially with the party in the absence of the other practitioner. He may, however,
communicate directly with a party if the party’s legal practitioner has not replied to
his correspondence or has refused, for no adequate reason, to pass on his communica-
tions to the party.9
Even if the opposing party is not legally represented, but the matter has become or is
likely to become contentious, a practitioner should not interview the opposing party,
and certainly not in circumstances in which he may have to give evidence about what
that opposing party said.10
Misleading other practitioners

A legal practitioner must never deliberately or recklessly mislead any other legal prac-
titioner. It is misconduct to do so.11 Many court cases can be resolved by discussion
between the lawyers — hence every lawyer must be able to rely on a fellow practi-
tioner’s truthfulness as to fact (not necessarily on his opinion as to the law).
Honouring promises
A practitioner must always honour his or her word. A practitioner who fails to honour
a professional undertaking is prima facie guilty of misconduct. (In this sense, an un-
dertaking is an unequivocal declaration of intention which is given by one practitioner
5
Wille Principles of S.A. Law 8th ed p. 613.
6
Statutory Instrument 37 of 2018. The Schedule to the S.I. is set out in Appendix 4.
7
Nel v Bester & Ors 2003 (2) SA 700 (SE).
8
See paragraph 3(53) of the Law Society (Code of Conduct) By-laws, 2018 (S.I. 37 of 2018), and rule
7 of the I.B.A. International Code of Ethics and Principle 16.02 of the Guide to the Professional Con-
duct of Solicitors (1990), published by the Law Society, London.
9
Paragraph 2 of the commentary to Principle 16.02 of the Guide to the Professional Conduct of Solicit-
ors (1990), published by the Law Society, London.
10
Mhene v Teubes 1986 (2) ZLR 179 (S) at 184.
11
Ben Baron & Partners v Henderson 1958 (4) SA 270 (SR), where a practitioner who sent a letter to
other practitioners which contained clear and deliberate misstatements of fact, was reported to the Law
Society.
74
to another, who reasonably places reliance on it, in the course of their practice.) 12
Hence, before giving such an undertaking a practitioner must consider very carefully
whether he or she will be able to honour it.
One aspect of the duty to honour one’s word, which is mentioned in the Guide to the
Professional Conduct of Solicitors (2007) published by the Solicitors Regulation Au-
thority, London (formerly the Law Society Regulation Board), is worth noting: it is
not improper for solicitors (i.e. legal practitioners) employed by non-lawyers to take
strike action or other industrial action which is in breach of their contract of employ-
ment, but before doing so they must have regard to their duties to the court and to
third parties. Before deciding to take any such action, according to the Solicitors Reg-
ulation Authority, employed solicitors must:
 ensure that no client for whom they are acting in the course of their employment is
prejudiced by the action in any crucial way, e.g. by missing a time limit;
 ensure that steps are taken to cover all court engagements;
 ensure compliance with their professional undertakings;
 promptly arrange to notify persons who may be affected by the proposed action.13
Requirements such as these should be — and probably are — applicable in Zimb-
abwe. In addition to complying with them, employed legal practitioners who engage
in industrial action must comply with the Labour Act [Chapter 28:01] and any other
enactments governing their employment; this is part of their general duty as legal
practitioners to uphold the law.
Prosecutors and members of the Attorney-General’s Office who are tempted to go on
strike should consider these points carefully.
Payment of advocate’s fee

A practitioner who has engaged an advocate (i.e. a member of the de facto bar prac-
tising as an advocate) must pay the advocate promptly for work which the advocate
was instructed to do, even if the practitioner’s client has defaulted in paying the prac-
titioner’s fee. In other words, the practitioner is personally responsible for the advoc-
ate’s fee.
Guarantees of payment in conveyancing matters

A legal practitioner is not obliged to accept another practitioner’s guarantee that pay-
ment will be made after transfer has been effected; but if such a guarantee is accepted
the practitioner giving the guarantee must ensure that it is honoured promptly and in
full, regardless of whether his client has paid him (i.e. if necessary he must pay it out
of his own pocket).
Meeting financial obligations

The practitioner’s obligation to honour promises extends not just to the financial ob-
ligations mentioned above, but to all such obligations incurred in the course of prac-
tising his or her profession. The Canadian Bar Association’s Model Code of Profes-
sional Conduct puts it wellin this way:
12
Society, London.
13
Rule 4.06 of the Guide to the Professional Conduct of Solicitors (2007), published by the Solicitors
Regulation Authority, London.
“[L]awyers have a professional duty (quite apart from any legal liability) to meet finan-
cial obligations incurred, assumed or undertaken on behalf of clients, unless, before in-
curring such an obligation, the lawyer clearly indicates in writing that the obligation is
not to be a personal oneThe lawyer has a professional duty, quite apart from any legal
liability, to meet financial obligations incurred or assumed in the course of practice
when called upon to do so. Examples are agency accounts, obligations to members of
the profession, fees or charges of witnesses, sheriffs, special examiners, registrars, re-
porters and public officials, as well as the [expenses?] deductible under a governing
body’s errors and omissions insurance policy.”14
Politeness
A legal practitioner must resist the temptation to be rude or abusive towards other
practitioners, whether in correspondence or in court, no matter how stupid or provoc-
ative the other practitioner may seem, and no matter how bitter the feeling between
their clients.
Extra-professional activities
Legal practitioners are entitled to engage in occupations outside the profession, so
long as they are not likely to bring the profession into disrepute or to interfere unduly
with their legal practice. If they do engage in extra-professional occupations, they
must take care to avoid any conflicts of interest and ensure that their clients are al -
ways aware of the capacities in which the practitioners are acting. 15 If they do engage
in extra-professional occupations, they must take care to avoid any conflicts of in-
terest and ensure that their clients are always aware of the capacities in which the
practitioners are acting. For example, a lawyer who runs an investment consultancy
must ensure that his clients know when they are receiving advice from him in that ca-
pacity, and when he is advising them as a lawyer.
Legal practitioners who run other businesses must also ensure that income from their
law practice is kept separate from any income they receive from their extra-profes-
sional businesses, and that separate accounts are kept for them. In particular, the trust
accounts for their law practice must be kept separately.16
Practitioners who engage in extra-professional activities, including those who enter
public office or politics, must ensure that their conduct in the course of those activities
is not such as may bring the profession into disrepute. As stated in the Canadian Bar
Association’sModel Code of Professional Conduct:17
“A lawyer who engages in another profession, business or occupation concurrently with
the practice of law must not allow such outside interest to jeopardize the lawyer’s pro-
fessional integrity, independence or competenceWhen acting or dealing in respect of a
transaction involving an outside interest in a business, investment, property or occupa-
tion, the lawyer must … adhere throughout the transaction to standards of conduct as
high as those that this Code requires of a lawyer engaged in the practice of law.”
14
Para 7 of the Commentary [1] to the rule in Chapter XIXprinciple 7.1-2 of the Canadian Bar Associ-
ation’s Model Code of Professional Conduct.
15
See commentaries [1] and [2] to Guiding Principle 7.3-1 of the Canadian Model Code the rule stated
in Chapter VII of the Canadian Bar Association’s Code of Professional Conduct, and rule III(b) of the
Rules of the Bar of Zimbabwe (1982).
16
See guiding principle 5 stated in Chapter VII of the Canadian Bar Association’s Code of Professional
Conduct, and sec 23(1)(h) of the Legal Practitioners Act [Chapter 27:07].
17
Guiding principle 4 to the rule stated in Chapter VII of the CodeGuiding Principle 7.3-1.
And similarly, in regard to practitioners in public office, the Canadian Model Code
states:18
“TheA lawyer who holds public office shouldmust, in the discharge of official duties, ad-
here to standards of conduct as high as those that these rules required of a lawyer en-
gaged in the practice of law.”
In a footnote to that rule, the Code mentions a case 19 in which the Montreal Bar
brought disciplinary proceedings against a Minister for criticising the conduct of a
judge; though the court apparently found the Bar had no jurisdiction, the fact that
proceedings were brought at all is significant.
Reporting of misconduct
There does not seem to be a generally recognised duty on legal practitioners in Zimb-
abwe to report cases of misconduct on the part of other practitioners.
Advocates do have such a duty: rule 1 of the Rules of the Bar Association of Zimb-
abwe (1982) states, in part:
“It is the duty of Counsel who believes that another Counsel has acted in breach of these
rules to report the matter to the Bar Council unless the information is privileged and the
privilege has not been waived.”
Solicitors in the United Kingdom also have such a duty. Principle 16.04 of the Guide
to the Professional Conduct of Solicitors (1990) published by the Law Society, Lon-
don, states:
“A solicitor is under a duty to report to the Solicitors Complaints Bureau, where necessary
after having obtained his client’s consent, any conduct on the part of another solicitor
which he believes falls short of the proper standard of conduct of the profession.”
This duty extends to reporting misconduct on the part of members of the solicitor’s
own firm.
It is submitted that all legal practitioners in Zimbabwe should take it upon themselves
to report to the Law Society actual or reasonably suspected cases of misconduct on
the part of other practitioners. The profession is an honourable one, and every practi-
tioner has an interest in maintaining its honour. If even one practitioner is allowed to
get away with dishonourable conduct, the whole profession may be brought into dis-
repute.
It may be noted that the Legal Practitioners (Code of Conduct) By-laws, 2018,20 re-
quire practitioners to report their own misconduct to the Law Society. Paragraph
3(25) and (26) of the Schedule to the Code state that it is unprofessional, dishonour-
able or unworthy for practitioners to fail or neglect to report promptly to the Council
if:
 they are charged with a serious criminal offence;21
 they are convicted of a serious criminal offence and sentenced to imprison-
ment without the option of a fine;
 they are convicted of a disciplinary offence by another professional body;
18
The rule set out in Chapter XGuiding Principle 7.4-1 of the Code.
19
Barreau de Montreal v Claude Wagner (1968), Q.B. 235 (Que. Q.B.)
20
Statutory instrument 37 of 2018. The Schedule to the S.I. is set out in Appendix 4.
21
The term “serious criminal offence” is defined in the Code as meaning an offence involving dishon -
esty, deception, violence or force for which a person may be sentenced to imprisonment without the op-
tion of a fine.
 insolvency proceedings are initiated against them;
 director’s qualification proceedings are initiated against them;
 an insolvency order or director’s disqualification order is made against them,
or
 they enter into an individual voluntary arrangement with their creditors.
And under by-law 67A of the Law Society By-laws, 1982, if a court deprives a practi-
tioner of his or her costs in any proceedings, or orders the practitioner to pay the costs
de bonis propriis, the practitioner must report that fact to the Law Society. In those
circumstances, therefore, a practitioner is are obliged to report histheir own miscon-
duct to the Society.
8. TRUST ACCOUNTS
Because trust accounts are such an important aspect of legal practice, and because
they loom so large in disciplinary proceedings, it is as well to deal with them in some
detail.
Introduction
A trust account is, in essence, an account with a bank or other financial institution
which serves as a repository in which a legal practitioner holds money on behalf of
clients and other persons. Practitioners who, in the course of their practice, are likely
to receive money which they will have to hand over to someone else — which means,
in effect, any money which they receive otherwise than by way of fees for services
rendered — must open trust accounts to hold the money. Generally speaking, there-
fore, all practising legal practitioners other than members of the de facto Bar and
those who are employed full-time by the State or by commercial or financial institu-
tions, must open trust accounts.
The importance of trust accounts cannot be over-emphasised:
“Central to the whole concept of professionalism in the handling of clients’ money is the
trust account. Whether one is speaking of lawyers, accountants or estate agents, the prin -
ciple is the same. Clients must know, with absolute conviction, that their money is safe.
The machinery which has developed to ensure that safety is the trust account.”
Per McNally JA in Mitchell v Estate Agents Council 1996 (1) ZLR 222 (S). See also
Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (S)
The funds in a trust account do not form part of the legal practitioner’s estate on his
death or insolvency, and are not subject to attachment at the instance of his creditors. 1
They are also protected from set-off against liabilities which the practitioner owes to
the bank at which the account is held.2
Opening of trust accounts

Under Part IV of Cap. 27:07, a legal practitioner who holds or receives money for an-
other person must open a trust account with a bank and may open another interest-
bearing trust account with a bank or building society. In addition, he can open special
investment accounts to keep clients’ money if the clients specifically request it. So
the Act provides for three different sorts of trust accounts:
 The first is a current account with a bank, which must be opened in terms of sec
13(1) of the Legal Practitioners Act [Chapter 27:07]. This is the main trust ac-
count, called “the bank trust account” in the Law Society of Zimbabwe By-laws,
1982. All trust money must initially be paid into this account and only then, if de-
sired, can it be paid into one of the other trust accounts. 3 Because it is a current
account, money is withdrawable from it on demand.
 Then there is an interest-bearing account, which may be opened in terms of sec
13(2) of the Act with a bank or building society or some other financial institution
approved by the Council of the Law Society. Money in this account must be with-
1
Sec 15 of the Legal Practitioners Act [Chapter 27:07].
2
3
drawable on not more than seven days’ notice, 4 and any money withdrawn from it
must be paid, in the first instance into the bank trust account and from there to the
ultimate recipient.5 Interest accruing on the account must be paid into the Law So-
ciety Compensation Fund, less a percentage which the legal practitioner is allowed
to keep to pay for the maintenance of the trust accounts.6
 Finally, legal practitioners are permitted to open investment accounts to hold their
clients’ money, if the clients authorise them to do so. 7 A client may well give
such authority if the amount of money is large and the client wants it to get in-
terest while the legal practitioner holds it. Interest on such an investment account
goes to the client, not to the practitioner or to the Compensation Fund. As with
the interest-bearing account, any money paid from this account must be paid, in
the first instance, into the bank trust account and from there to the client.8
All these accounts are regarded as trust accounts for the purposes of the Legal Practi-
tioners Act.
Before commencing practice on his own, a practitioner must satisfy the Secretary of
the Law Society that an auditor has explained to him or her how to operate a proper
accounting system in respect of his or her trust accounts. 9 Immediately after opening
a trust account of any kind, a legal practitioner must notify his auditor and the Council
of the Law Society.10
Maintenance of trust accounts

A legal practitioner must deposit trust funds into his trust bank account promptly,
either on the same day he receives them or on the next reasonably possible banking
day.11
It is essential that a legal practitioner’s own funds are kept separate from his trust ac-
counts: there must be no confusion between the bank accounts kept for his practice
and his trust accounts.12
Money paid into a legal practitioner’s trust account must be used solely for the pur-
pose for which it was entrusted to the practitioner. It is held in trust and the practi -
tioner must use it for that purpose and for nothing else. This applies even where the
person for whom the money is held is not a client of the practitioner.13
As already indicated, interest accruing from the interest-bearing account (i.e. the
second type of trust account mentioned above), as well as any interest that may be
paid on the bank trust account, must be paid to the Law Society Compensation Fund,
less a percentage which the practitioner can keep.
4
Section 5(1) of the Legal Practitioners (General) Regulations, 1999 (SI 137/1999).
5
Section 13(4) (b) of the Legal Practitioners Act [Chapter 27:07].
6
Section 13(5)(b) of the Legal Practitioners Act [Chapter 27:07].
7
8
Section 13(4) (b) of the Legal Practitioners Act [Chapter 27:07].
9
By-law 71C of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
10
By-law 70D of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
11
By-law 70F of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
12
Cf rule 15 of the IBA International Code of Ethics.
13
Frikkie Pretorius Inc & Anor v GG 2011 (2) SA 407 (KZP).
A legal practitioner must keep “proper books of account” showing trust moneys re-
ceived and paid into his trust accounts, and interest on any interest-bearing trust ac-
count.14 The trust accounts must be written up at least once a month and balanced
regularly, and every month the practitioner must extract and record the balance stand-
ing to the credit of each client in his accounts. 15 The records of these balances must
be preserved for at least three years, 16 to ensure that the Law Society Council can, if
necessary, trace payments that have been made into and out of the practitioner’s trust
accounts.
A legal practitioner has a duty to keep intact the trust funds which he holds, except to
the extent necessary to make a payment for which part of the funds was destined. He
must account to his clients in writing for all money deposited and withdrawn from the
accounts, and must do so without delay.17 Cheques drawn on a trust account must be
made out to specific payees.18 Withholding payment of trust money without lawful
cause is an act of misconduct,19 and if the practitioner’s conduct amounts to theft the
normal penalty is cancellation of his registration, since by his conduct he has under-
mined the very core of the relationship between practitioner and client. 20 Even failure
to keep trust account records properly is a very serious act of misconduct since the
keeping of books underpins the Legislature’s endeavours to protect the public and
failure to keep proper records undermines the public’s confidence in the profession,
though in the absence of proof of theft it may not result in striking off.21
Law Society’s supervision of trust accounts

A legal practitioner who maintains trust accounts must provide the secretary of the
Law Society with an annual audit certificate; he must do so in order to obtain the re-
newal of his practising certificate.22 This requirement ensures that practitioners’ trust
accounts are audited at least once a year.
The Law Society may send auditors to inspect a legal practitioner’s trust account
books at any time, and if an auditor finds evidence of contraventions of the Act or reg-
ulations or by-laws the cost of the audit may be recovered from the practitioner con -
cerned.23 The Council may also require a bank to provide a certified balance of
money standing to the credit of a practitioner’s trust account. 24 And for good cause
the Society may apply to the Disciplinary Tribunal for an order prohibiting a legal
14
Sec 14(1) of the Legal Practitioners Act [Chapter 27:07]. By-law 70J of the Law Society of Zimb-
abwe By-laws, 1982 (SI 314/82) provides that a practitioner’s accounting system must be “adequate”.
15
By-laws 70B and 70C of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
16
By-law 70B(2) of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
17
By-law 70E of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
18
By-law 70H of the Law Society of Zimbabwe By-laws, 1982 (SI 314/82).
19
Sec 23(1)(d) of the Legal Practitioners Act [Chapter 27:07].
20
Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (S). See also Holmes v Law Society, Cape,
& Anor 2006 (2) SA 139 (C) at 152G and Summerley v Law Society of Northern Provinces 2006 (5)
SA 613 (SCA).
21
Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S). See also Holmes v Law Society,
Cape, & Anor 2006 (2) SA 139 (C).
22
Sec 81 of the Legal Practitioners Act [Chapter 27:07] and by-law 71C of the Law Society of Zimb-
abwe By-laws, 1982 (SI 314/82).
23
Sec 14(2) & (4) of the Legal Practitioners Act [Chapter 27:07].
24
practitioner from operating his trust accounts and appointing a curator bonis to man-
age them.25
In the event of a legal practitioner’s death, insolvency or insanity the Council can ask
the Master of the High Court to appoint a curator bonis to manage the practitioner’s
trust accounts.26
25
Sec 25A of the Legal Practitioners Act [Chapter 27:07].
26
Sec 16(2) of the Legal Practitioners Act [Chapter 27:07].
9. FEES AND COSTS
General principle
Making a profit should not be the primary goal of a legal practitioner. Only fair and
reasonable fees are permitted.1 The Law Society regularly issues a tariff of fees
which should be charged in the absence of the client’s written consent. The tariff fees
can be varied according to:
1. The complexity of the matter or the difficulty or novelty of the questions in-
volved.
2. The specialised knowledge, skill or responsibility required of the practitioner.
3. The place where or circumstances in which the business is transacted.
4. The amount or value of the money or property involved.
5. The importance of the matter to the client.
In many cases, the fees vary according to the practitioner’s seniority.
Overreaching
This means the extracting of unconscionable, excessive or extortionate fees by a legal
practitioner, through taking undue advantage of a client. 2 Deliberate over-charging
amounts to misconduct and the legal practitioner must avoid manifestly excessive
charging, particularly if the client is ignorant.
On the other hand, as was said in Cape Law Society v Luyt 1929 CPD 281:
“[I]f the prospective client is a free agent, if there is no overreaching, no fraud or duress,
no taking advantage of him, then if the client chooses voluntarily to agree to an extravag -
ant fee, I cannot say that there would be misconduct.”
Further to this, the Law Society’s tariff allows practitioners to charge fees on a differ-
ent basis from that laid down by the tariff, or at a rate which is materially different,
but before doing so they must inform their clients and obtain their agreement, prefer-
ably in writing. The Society is likely to regard any fee of more than 30 per cent above
the recommended rate as “materially different”.
If the legal practitioner with whom a client has been dealing is unable to attend to the
client’s affairs and another practitioner in the same firm takes over, it is not permiss-
ible for the client to be charged with the cost of the new practitioner familiarising
himself with the client’s papers.3
Overreaching extends to people other than clients. A legal practitioner must not assist
a client to recover from a debtor more than is lawfully due, and thus to overreach the
debtor. For example, collection charges must not be included in an amount demanded
from a debtor when they are not claimable.
Under-charging
This is also unprofessional conduct, because it is regarded as a form of touting for
custom. The Law Society’s tariffs of recommended fees are in fact tariffs of min-
imum fees. Undercutting the Law Society’s tariffs has been called “a shameful prac-
1
By-law 68(1) of the Law Society of Zimbabwe By-laws, 1982 (SI 314 of 1982).
2
Law Society of the Cape of Good Hope v Tobias & Anor 1991 (1) SA 430 (C) at 435B.
3
Coghlan, Welsh & Guest v Levy 1979 RLR 13 (G).
tice which has no place in our legal system” by Mathonsi J in Scapelox Trading (Pvt)
Ltd v Mashangwa Family Trust & Ors 2014 (1) ZLR 229 (H) at 234F, in regard to
conveyancing fees. The learned judge went on to say:
“There must be uniform application of conveyancing fees. Anything else is unlawful and
represents dishonourable and unworthy conduct by a legal practitioner, which should be
punishable.”
A legal practitioner must charge adequately and properly for his professional services
unless he or she is acting pro Deo or pro amico.
Deposits
Deposits can be taken only in respect of work in hand or work in respect of which in-
structions are being given at the time the deposit is made. They may not be taken in
respect of future possible work.
A deposit must not exceed a reasonable estimate of the costs it is intended to cover.
A deposit must be treated as trust money and paid into the legal practitioner’s trust ac -
count, being drawn on as and when needed to meet costs incurred.
Retainers
A retainer is a fee paid regularly to a legal practitioner to hold himself or herself avail-
able to represent the client should the need arise. 4 Only advocates may accept retain-
ers.
Bill of costs
A legal practitioner must not include in a party and party bill of costs any item that he
knows cannot be allowed on taxation. (It is different for a legal practitioner and client
bill of costs.)
Querying of costs by client

A client is entitled to have his legal practitioner’s fees taxed. When taxing fees, the
taxing officer must be guided by the Law Society’s tariff of recommended fees.
Champerty and contingency fee arrangements

Champerty is an arrangement whereby a person provides assistance (usually financial)
to another person for the conduct of litigation, in return for a share in the proceeds of
the litigation. In the context of legal practitioners, it occurs when a legal practitioner
fixes his or her fee as a percentage or portion of the property in dispute, for example,
where he or she represents a client in exchange for 20 per cent of any damages awar-
ded. It is acceptable in the United States of America, but until recently it was illegal
in the United Kingdom, South Africa and Zimbabwe.
In the United Kingdom litigation has traditionally been seen as socially disruptive,
which is one reason why champertous contracts have been frowned upon there,
whereas in the United States litigation is generally regarded as a socially useful way
of settling disputes. Also, in the United States — more so than in the United King-
dom — the practice of law is regarded as a commercial occupation.5
4
In the USA and England, on the other hand, the term is used more generally to cover authority given
to an attorney or solicitor.
5
Zander Lawyers and the Public Interest (1968) Weidenfeld & Nicolson.
84
Champerty is a term of art in English law and covers any contract whereby a person
with no interest in a suit agrees to assist a litigant in return for a share of the damages
or other proceeds of the litigation. In Roman-Dutch Law such contracts are called
pacta de quota litis and in most (but not all) cases they are void as being contrary to
public policy — they are certainly void if a legal practitioner is a party to them. 6
Christie The Law of Contract in South Africa 2nd ed p. 423, justifies the position as
follows:
“The civil courts are designed primarily for the settlement of bona fide disputes between
litigants with or without the assistance of entirely disinterested members of the legal pro -
fession. Any contract disruptive of this pattern of litigation contains the seeds of injustice
and must therefore be treated as illegal and void.”
As suggested by this quotation, the rule against champerty applies to litigious work
but does not generally extend to non-litigious work.7
Under Part IVA of the Legal Practitioners Act [Chapter 27:07], legal practitioners can
enter into “contingency fee arrangements” with clients in such cases as may be pre-
scribed by the Minister in regulations. In any such arrangement, the maximum fee
they can claim is limited to a prescribed percentage of the total amount awarded to the
client, or their normal fee plus a prescribed percentage of that fee. 8 The fact that a
practitioner has entered into such an arrangement must not be disclosed to the court
hearing the case.
Regulations to give effect to Part IVA of the Act were published in October 2014. 9
They allow legal practitioners to enter into contingency fee arrangements in any pro-
ceedings where the practitioners consider there is a reasonable prospect of success.
Before concluding a contingency fee agreement10, the practitioner must provide the
client with brief summaries — presumably in writing — of the following matters:
 other possible ways of financing the legal proceedings, e.g. legal aid;
 the normal way in which legal practitioners’ fees are calculated, and the fact that
the practitioner’s fee under the contingency fee agreement may be higher;
 the amounts that may be payable by way of expenses, e.g. court fees, and when
they become payable;
 the rule that a court may order the losing party in litigation to pay the winner’s
costs.11
A contingency fee agreement must be in writing and must specify various matters, in-
cluding:
 the contingency fee that will be payable to the legal practitioner in the event of
success or partial success in the proceedings;
6
Wille Principles of S.A. Law 8th ed p. 432–3; Christie Law of Contract in S.A. 2nd ed p. 423–5;
Gramowsky v Steyn 1922 SWA 48. For a useful discussion of the validity of such contracts, see
Goodgold Jewellery (Pty) Ltd v Brevadau CC 1992 (4) SA 474 (W) at 481–5 and Price Waterhouse
Coopers Inc & Ors v National Potato Co-operative Ltd 2004 (6) SA 66 (SCA).
7
Mostert & Ors v Nash & Anor 2018 (5) SA 409 (SCA).
8
The fepercentages currently claimable are mentioned below.
9
The Legal Practitioners (Contingency Fee Agreements) Regulations, 2014 (SI 154 of 2014). They are
set out in Appendix 45.
10
The regulations use the term “agreement” rather than “arrangement”, which is used in Part IVA of
the Act.
11
Section 5 of the regulations.
85
 what constitutes success or partial success that entitles the practitioner to a fee;
 how the agreement may be terminated by either party. In this regard the client
must be entitled to withdraw from the agreement within seven days after signing
it.12
Contingency fees must not exceed 200 per cent of the lawyer’s normal fee, where it is
calculated on the basis of a premium on that normal fee; or 25 per cent of the dam -
ages or other award that accrues to the client as a result of the proceedings, where the
fee is calculated as a percentage of the award.13
A contingency fee agreement must not prevent the client from terminating the agree-
ment or changing legal practitioners, nor may it require the practitioner to consent be-
fore the client abandons or settles the claim. 14 Legal practitioners are not allowed to
settle their clients’ claims without the clients’ written instructions to do so.15
Clients may refer contingency fee agreements to the Law Society for review. 16
It is noteworthy that the legislation does not deal clearly with the question of costs
(i.e. who will pay costs if a client who is being represented under a contingency fee
agreement loses his case  does the client have to pay, or does the lawyer?).
Contingency fee arrangements may turn out to be a mixed blessing for litigants. Law-
yers may be reluctant to enter into them except in cases where their clients (plaintiffs
or applicants) have a very clear case and good prospects of recovering substantial
damages. Contingency fee arrangements will not help indigent defendants or re-
spondents at all. And, as already mentioned, the question of costs has not been prop-
erly worked out in connection with such arrangements.
A champertous contract, including a contingency fee agreement that does not conform
to the regulations, is contrary to public policy and unenforceable. A client who has
entered into such a contract can recover any illegal payment he has made from his
legal practitioner.17
Enforcing payment of fees

A legal practitioner is entitled to enforce payment of his or her fees through litigation,
i.e. by suing the client, though it is obviously a delicate matter and a lawyer should
hesitate before instituting such proceedings.
Generally, the legal practitioner must look to the client to pay the fees.
Whether this applies to advocates, i.e. members of the de facto bar, is not altogether
clear. In South Africa advocates may not sue for their fees, which are probably pay-
able by the instructing legal practitioner.18 In Zimbabwe, on the other hand, it is likely
that advocates can sue. Like other legal practitioners, they can and do enter into valid
contracts regarding the provision of their professional services, 19 and any rule of pro-
12
13
Section 6(3) & (4) of the regulations.
14
15
16
17
Tecmed (Pty) Ltd v Hunter & Anor 2008 (6) SA 210 (W).
18
Serrurier & Anor v Korzia & Anor 2010 (3) SA 166 (W), though in Tredoux v Kellerman 2010 (1)
SA 160 (C) at 166C the issue of an advocate suing a client for his fees was said to be a vexed question.
19
See generally Christie, Law of Contract in South Africa, 2nd ed p. 107.
86
fessional etiquette that precludes them from suing for their fees would probably not
affect the enforceability of those contracts.20
Pro Deo and Pro Amico work

A legal practitioner must do his or her share of pro Deo and legal aid work, and give it
the same attention as he or she would to other matters. 21 The Minister of Justice,
Legal and Parliamentary Affairs has power under sec 87 of the Legal Practitioners Act
to make regulations denying a right of audience to legal practitioners who refuse to
accept their share of such work (to date, no such regulations have been made).
Needless to say it is improper for a legal practitioner to charge a legal aid client an ad -
ditional fee over and above what the practitioner obtains from the State.22
No charge may be made for pro amico work, and contingent fees are not permitted.
20
Unless the professional rule can be construed as a stipulatio alteri, i.e. as a contract for the benefit of
the person liable to pay the fees.
21
See In re Chivaura HB-113-2010, where a legal aid practitioner was severely censured for having
prepared a defence outline without ever interviewing his client.
22
Mackay v Legal Aid Board 2003 (1) SA 271 (SE).
87
10. ADMINISTERING OATHS
Legal practitioners are ex officio commissioners of oaths and, as such, entitled to ad-
minister oaths.
Under sec 8 of the Justices of the Peace and Commissioners of Oaths Act [Chapter
7:09], commissioners of oaths may not administer oaths in any case in which regula-
tions prohibit them from doing so or if the commissioner has reason to believe that the
person concerned is unwilling to take an oath.
Under sec 2(1) of the Justices of the Peace and Commissioners of Oaths (General)
Regulations, 1998 (SI 183 of 1998):
“No justice of the peace or commissioner of oaths shall attest any affidavit relating to a
matter in which he has any interest.”
One effect of this rule is that a legal practitioner may not attest an affidavit for use in
proceedings in which he is professionally involved, even if he is acting pro Deo or
pro amico and charging no fee.1 The reason for the rule is that a commissioner of
oaths must satisfy himself that the witness thoroughly understands what he is about to
swear to, and this duty may not be discharged effectively by the person who drafted
the affidavit, who may explain it in the sense he himself attached to it.2
Exceptions are affidavits required for record in a Deeds Registry, or for record in
State offices or the offices of a local authority.
A commissioner of oaths may not charge a fee for administering an oath3
A commissioner should not authenticate a signature where he has not seen the signat-
ory sign 4, and he should not sign or procure the signature of blank documents, e.g.
powers of attorney. Commissioners of oaths should bear in mind what was said by
Lopes J in Plumb On Plumbers v Lauderdale 2013 (1) SA 60 (KZD) at 63G-I:
“However much the practice of swearing an oath may have become diluted in modern
society by the inexperience or lack of training of commissioners of oaths, or a lack of
appreciation of their functions, the swearing of an oath by a deponent is a serious and
important function. The oath underlines the seriousness of making the allegations of
fact contained therein, and entitles a court to rely on these facts as evidence where they
are not challenged or disputed. The repercussions for an untruthful deponent can be
very serious indeed, and practitioners are cautioned against the dangers inherent in us-
ing precedents to prepare affidavits, without ensuring that all allegations of fact are be-
lieved by the deponent to be true.”
Witnesses’ statements in civil cases should not be taken in affidavit form.5
1
Manyika v Manyika 1983 (2) ZLR 198 (H) at 199-201; ZAPU v Siwela HB-14-2002; Macheka v
Moyo HB-78-2003; Core Mining & Minerals Resources (Pvt) Ltd v Zimbabwe Mining Development
Corporation & Ors 2011 (1) ZLR 22 (H) at 27 and Hughber Petroleum (Pvt) Ltd & Anor v Brent Oil
Africa (Pty) Ltd 2014 (1) ZLR 200 (H) at 203.
2
Manyika v Manyika 1983 (2) ZLR 198 (H) at 201, quoting Foster v Harvey (1863) 2 NLR 443.
3
Section 10(2) of the Justices of the Peace and Commissioners of Oaths Act.
4
S v Hurle & Ors (2) 1998 (2) ZLR 42 (H) at 50 and Rock Chemical Fillers (Pvt) Ltd v Bridge Re-
sources (Pvt) Ltd & Ors 2014 (2) ZLR 30 (H) at 32G.
5
Mapuranga v Mungate 1997 (1) ZLR 64 (H)
11. MISCELLANEOUS STATUTORY DUTIES OF A
LEGAL PRACTITIONER
The first duty of a practitioner is to acquaint himself with the Legal Practitioners Act
[Chapter 27:07] and all regulations, by-laws and rules made under the Act.
Section 23(1) of the Legal Practitioners Act sets out various forms of unprofessional,
dishonourable or unworthy conduct on the part of legal practitioners. A practitioner
must not:
1. Tout or advertise.
2. Contravene the Act or any regulations, rules or by-laws made under it.
3. Withhold any payment of trust money without lawful cause.1
4. Enter into a champertous transaction, except as permitted by the Act.2
5. Permit anyone who is not a legal practitioner to receive any fee or income in
respect of work restricted to a legal practitioner.
6. Open or maintain an office which is not under continuous personal supervi-
sion of a legal practitioner.
7. Keep books of account for his practice jointly with an unregistered person.
8. Remunerate anyone who is not a legal practitioner by way of a share in the
profits.
9. Tender in response to an advertisement to perform legal work.3
10. Help an unregistered person recover charges for services by including those
charges in his own bill of costs, without disclosing that fact.
11. Allow his name to appear in an advertisement or letter-head in conjunction
with an unregistered person’s name, giving the impression that he is associ-
ated with that other person in the practice of the profession of law.
12. Place himself under the control of an unregistered person so as to compromise
his professional independence.
13. Levy fees that are lower than the prescribed minimum.
Note that the list is not exhaustive: sec 23(2) allows the Council of the Society or the
Disciplinary Tribunal or a court to determine that other types of conduct constitute un-
professional, dishonourable or unworthy conduct.
At first sight the list in sec 23(1) seems an odd one, both for what it contains and for
what it omits. Why are the really serious forms of misconduct not listed: cheating
one’s client, lying to the court, and so on? And what is so serious about sharing one’s
profits with an unregistered person that it merits inclusion in the list? The answer is
that most of the forms of misconduct listed in sec 23(1) are there precisely because
they are not morally reprehensible, and they have been inserted in the list to avoid any
argument as to whether or not they amount to unprofessional, dishonourable or un-
worthy conduct. Take as an example entering into a champertous arrangement. This,
as explained earlier, means sharing the proceeds of litigation with one’s client: the
legal practitioner is not paid a fee but receives a percentage of any damages or other
amount awarded to the client. There is nothing immoral about such arrangements,
1
Trust accounts are dealt with in Chapter 8.
2
Champerty is dealt with in Chapter 9 (Fees and Costs).
3
In Incorporated Law Soc v Becker 1921 TPD 407 this was held to be a form of touting.
and indeed they are common in the United States, so it might be difficult for the Law
Society to persuade a court that champerty is unprofessional, dishonourable or un-
worthy. Hence, to put the question beyond doubt, champerty has been listed in sec
23(1). Other forms of conduct which really are dishonourable or liable to bring the
profession into disrepute are covered by the discretionary powers vested in the Law
Society Council, the Disciplinary Tribunal and the courts by sec 23(2).
Most of the acts listed in sec 23(1) are clear (even if the reasons for their being listed
are not) but some deserve further explanation:
Touting and advertising

Legal practitioners may not tout (i.e. solicit for business or pester customers) 4. Nor
may they advertise, except as permitted by the Law Society in its guidelines, pub-
lished in 2000.5 These may be summarised:
1. Legal practitioners must conduct themselves in a manner consistent with the
good reputation of the profession. Any publicity must be in good taste with
regard to both content and usage and must not be misleading. Advertising
must not compromise or impair:
 the practitioner’s independence or integrity or duty towards his client;
 the client’s freedom to instruct a legal practitioner of his choice;
 the legal practitioner’s duty to act in the best interests of the client;
 the good repute of the practitioner or the profession;
 the proper standard of the practitioner’s work.
2. A firm’s name and address may appear in bold type in a telephone directory
and also in the yellow pages under the title “legal practitioners”.
3. Business cards can be given only to people who reasonably need to have a re-
cord of the information contained in them.
4. No advertisement may name the firm’s clients, and a practitioner may refer to
a client’s name in the public media only with the client’s written consent.
5. No advertisement may compare the services of the firm with those given by
any other legal practitioners, nor may it refer to a legal practitioner’s success
rate.
6. No advertisement may compare the legal practitioner’s charges with those of
another.
7. No advertisement or publicity may state that a practitioner will undertake spe-
cific kinds of work for a specific charge.
8. An advertisement may state that the legal practitioner undertakes a particular
class of work only if he is able and qualified to do that work competently.
4
In Law Society, Cape v Berrangé 2005 (5) SA 160 (C), a practitioner was held guilty of touting where
he entered into “marketing agreements” with estate agents whereby he rewarded them for referring
conveyancing work to his firm.
5
The Law Society is probably not entitled to permit legal practitioners to advertise, since section 23(1)
(b) of the Legal Practitioners Act [Chapter 27:07] prohibits advertising and does not allow the Law So-
ciety to make exceptions to the rule. The Law Society can however regulate forms of publicity rather
than advertising in the strict sense – for example, the form and size of law firms’ entries in telephone
and business directories, and the extent to which legal practitioners may issue business cards.
90
9. An advertisement may state that a firm is a specialist in a particular branch of
the law only if it has the requisite expertise in that branch.
10. A legal practitioner may give interviews to the press and take part in radio or
television broadcasts, and may state his name and the name of his firm. But
he must not refer to the name of a client without the client’s written permis-
sion
Allowing one’s professional independence to be compromised

Legal practitioner must ensure that they remain professionally independent, i.e. that
they are able to give their clients independent, impartial advice and that they are free
to act in their clients’ best interests.6
This is something that must be borne in mind by corporate lawyers. In Law Society of
Zimbabwe v Lake 1988 (1) ZLR 168 (S), a corporate lawyer sought permission to un-
dertake conveyancing work on behalf of his employer. Conveyancing is work re-
served for conveyancers (then legal practitioners). The court held that he could not do
so. The performance of any “reserved work” (i.e. appearance in court and the prepar-
atory work that precedes such appearance; notarising documents; and conveyancing)
must be done by independent practitioners, not by employees on behalf of their em-
ployers.
“I think it is a fair proposition that any non-registered person who takes into his employ a
registered legal practitioner in order that he may practise the profession of law on his be -
half poses a potential threat to the professional independence of the practitioner. The
mere fact that the practitioner subordinates himself as a servant puts his independence in
the practice of his profession in jeopardy.” (p. 180D)
This does not apply to legal practitioners in the employment of the State (p. 177E-F).
Practising in partnership with unregistered persons

Section 23(1)(o) of the Act prohibits registered legal practitioners from practising in
partnership with unregistered persons in such a way that the unregistered persons
share fees for reserved work, i.e. work which is reserved for members of the legal pro-
fession. The purpose of the prohibition is clear: it ensures that reserved work remains
within the domain of legal practitioners who are (supposedly) competent to do it. It
also prevents the formation of multi-disciplinary partnerships, i.e. partnerships in
which the partners are members of more than one profession.
Some years ago there was a suggestion that the law should be amended to allow
multi-disciplinary partnerships to be formed in Zimbabwe; members of the account-
ing profession advanced the suggestion because they felt that such partnerships would
be able to offer their clients, particularly corporate clients, a much fuller service than
is possible for partnerships consisting of members of a single profession. There is a
lot to be said for this: not only would multi-disciplinary partnerships be able to
provide a fuller service, but their services might well be cheaper and better than those
that are currently provided. On the other hand, they could give rise to problems:
 Different professions have different attitudes towards profit-making. A multi-dis-
ciplinary partnership might be motivated more towards making a profit than to ad-
vancing the public interest which, at least in theory, is the motive behind the prac-
tice of law.
6
See generally De Villiers & Anor v McIntyre NO 1921 AD 425.
91
 Different professions have different ethical rules. Auditors, for example, are ob-
liged to disclose information about their clients’ affairs which lawyers would be
obliged to keep confidential.
 Difficulties would arise in applying the law of privilege and the rules relating to
confidentiality. If, for example, a lawyer who was a partner in a multi-disciplin-
ary partnership disclosed privileged information to a partner who was, say, a
chartered accountant, the accountant would not be protected by legal practitioner/
client privilege if, when giving evidence in court, he was asked to reveal that in-
formation.
 Partners in a multi-disciplinary partnership might try to provide their clients with a
full range of services from within the partnership, even though the services might
be better provided from outside. A lawyer, for example, would be strongly temp-
ted to refer his clients to an accountant partner even if he knew or suspected that
the clients’ needs would be better served by a specialist accounting firm.
 The extent of professional persons’ liability for negligence differs between profes-
sions. For example, auditors who negligently fail to report errors or deficiencies
in their clients’ accounts may become liable to shareholders and other persons
who invest in or lend money to the clients on the strength of the auditors’ reports.
Their liability is potentially enormous. This may be a disincentive for lawyers and
other professionals to enter into partnership with auditors, since by doing so they
would share the auditors’ liability.
92
12. CESSATION OR ABANDONMENT OF PRACTICE
Introduction
When a legal practitioner ceases to practise, for whatever reason, arrangements need
to be made for the transfer of the business, disposal of the files and for completing of
accounting procedures.
If the practitioner is a member of a large firm, his files will normally be taken over by
his partners and there will be no problem with the disposal of his files. He should,
however, notify his clients that he is leaving the practice and tell them which partner
will be taking over their files.1
On the other hand, if a legal practitioner who was operating a one-man practice de-
cides to cease practising, or if all the partners of a partnership cease to practise, then
there are three options:
 the practice can be sold to another legal practitioner;
 the practice can be wound up over a period of time, that is to say the practi-
tioner can decide to finalise every case until there are none remaining;
 the files in the practice can be distributed to new legal practitioners nominated
by the clients  which will necessitate writing to the clients informing them
of the winding-up of the practice and asking them to nominate new lawyers.
In all these cases, the practitioner must inform his current clients that he is ceasing to
practise, and must inform them in sufficient time to enable them to transfer their busi -
ness to another practitioner if they choose to do so.
The Secretary of the Law Society must also be informed within 21 days after the prac-
titioner has ceased to practise (see by-law 58(2)(b) of the Law Society By-laws, 1982
(SI 314/1982)). Note that the practitioner need not apply to have his name deleted
from the Register in terms of sec 6 of the Legal Practitioners Act [Chapter 27:07], nor
need his name be deleted from the register of members kept by the Law Society in
terms of by-law 56 of the Law Society of Zimbabwe By-Laws, 1982.
As noted earlier, a legal practitioner’s retirement from practice does not affect his or
her duty of confidentiality regarding the affairs of former clients. The practitioner re-
mains bound by that duty.
Disposal of files
Except in the first case (sale of the practice), it is likely that some files will remain
comprising the following:
 Current files where new legal practitioners have not been nominated;
 Completed files.
The practitioner should come to an arrangement with another practitioner to take the
current files and any wills or similar documents for safe storage, pending instructions
being received from clients.
The retiring practitioner should carry out a selective destruction exercise on the re-
maining files. But the following points should be borne in mind:
1
Cf Principle 8.01 of the Guide to the Professional Conduct of Solicitors (1990), published by the Law
Society, London.
1. The client’s documents may be returned, by agreement. However it may be
prudent to retain copies in case a dispute arises regarding the practitioner’s
handling of the client’s affairs.
2. Documents that may be relevant to a claim should prima facie be kept for at
least the period of prescription if the claim has not previously been disposed
of.
3. Documents containing client’s tax or VAT records must be retained for at least
the relevant statutory prescribed period.2
4. There is no specific date beyond which the obligation to hold a client’s own
documents can be said to expire. Deeds or other documents constituting or
evidencing rights should be preserved indefinitely but it is virtually impossible
to predict when they might turn out to be of value. There is therefore a risk at -
tached to destroying them.
5. The client’s informed consent should be obtained before files and papers may
be safely destroyed. Destruction of the client’s property without consent could
expose the practitioner to liability and damages.
6. Practitioners must take steps to ensure that sensitive or privileged documents
and files are not disposed of in any way which might compromise them.
The files remaining after the destruction exercise should also be transferred to another
legal practitioner for storage.
Trust funds
If a legal practitioner transfers his practice to another practitioner, or if a client in-
structs him to send his files to another practitioner, then he should ensure that any
funds being held in trust for his client are transferred to the other practitioner’s trust
account or are paid out to the clients concerned. In the event of a practitioner retiring
or abandoning his or her practice without having transferred or paid out trust moneys
in this way, the Master of the High Court may appoint a curator bonis to administer
the practitioner’s trust moneys.3
Under by-law 70E of the Law Society By-laws, 1982, within a reasonable time after
the termination of his/her mandate, a legal practitioner must provide the client with a
written statement showing details of the amount owing to the client, and must pay the
amount over within a reasonable time. Cessation of practice involves termination of
the practitioner’s mandate.
Under by-law 71C(5) of the Law Society By-laws, 1982, a legal practitioner who re-
tires after practising on his own account must submit an audit certificate covering the
period from the date of his last certificate up to the date of his retirement.
2
Sections 47 and 48 of the Income Tax Act [Chapter 23:06] allow the Commissioner-General of the
Zimbabwe Revenue Authority to alter assessments up to six years after they were made, or at any time
if the alteration is necessitated by fraud, misrepresentation or the wilful concealment of facts by the
taxpayer. Section 15(a)(iv) of the Prescription Act [Chapter 8:11] states that debts owed to the State in
respect of taxes are extinguished by prescription after 30 years. So clients’ tax and VAT records
should be retained for at least six years and possibly for 30 years.
3
Section 16(1)(e) of the Legal Practitioners Act [Chapter 27:07].
94
13. DISCIPLINARY PROCEEDINGS
Responsibility of Law Society

The Law Society of Zimbabwe is primarily responsible for maintaining the standards
of the legal profession, and for instituting disciplinary proceedings against errant
members of the profession. Among its objects are:
“to define and enforce correct and uniform practice and discipline among legal practi-
tioners.”1
To enable the Society to carry out its responsibilities in this regard, the Council of the
Society has established a three-member committee called the Disciplinary Committee
whose functions are to carry out investigations into allegations of unprofessional con-
duct, i.e. unprofessional, dishonourable or unworthy conduct described in secs 23(1)
and 28 of the Act, whether committed by legal practitioners or legal assistants (i.e.
persons who are undergoing practical training prior to being registered as practition-
ers).2
The Society does not concern itself only with unprofessional, dishonourable or un-
worthy conduct committed by practitioners after their registration: pre-registration
conduct may be the subject of a disciplinary inquiry.3
Initial investigation of allegations of unprofessional conduct

People (usually dissatisfied clients) who are aggrieved about the conduct of a legal
practitioner or legal assistant and want something done about it can lodge a complaint
with the Secretary of the Society, who may call on the legal practitioner or assistant
concerned to answer the complaint, in writing, within 14 days. If the Secretary thinks
there is no substance in the complaint, he must tell the complainant that and can let
the matter drop unless the complainant insists that further action must be taken. If the
Secretary thinks there is substance in the complaint, or if the complainant insists on
further action, the Secretary must refer the complaint and all the papers relating to it
to the Disciplinary Committee.4 The complainant’s right to insist that the matter be
taken further is important, because the public must not be allowed to get the impres-
sion that lawyers are covering up for each other, that the Law Society is trying to pre-
vent allegations of misconduct against its members from being revealed and properly
investigated.
If, without a formal complaint, the Secretary learns of possible misconduct on the part
of a legal practitioner or assistant, he may write to the practitioner or assistant con -
cerned and call on him or her to reply to the allegation within 14 days.5
A practitioner or assistant who unreasonably fails or refuses to reply when called upon
to do so by the Secretary is automatically guilty of unprofessional conduct. 6 And
practitioners must be truthful in their replies, because supplying false information to
the Council amounts to unprofessional, dishonourable or unworthy conduct.7
1
Sec 53(c) of the Legal Practitioners Act [Chapter 27:07].
2
See by-law 60 of the Law Society of Zimbabwe By-laws, 1982.
3
Sec 28(1)(a) of the Legal Practitioners Act [Chapter 27:07].
4
By-law 61 of the Law Society of Zimbabwe By-laws, 1982.
5
6
One way in which the Secretary may come to learn of unprofessional conduct is
through the courts. If a court considers that in any legal proceedings there has been
unprofessional conduct, the court must forward a copy of the record of the proceed-
ings to the Council of the Society. In addition, the Council can obtain a copy of any
such record free of charge from the court.8
On receipt of papers relating to a complaint, the Disciplinary Committee must conduct
whatever investigation it thinks fit and must then decide whether or not the evidence
discloses a prima facie case of unprofessional conduct. In the course of the investiga-
tion the Committee can call on the complainant and the legal practitioner or assistant
concerned to provide affidavits or to produce books and records. Once again, unreas-
onable failure on the part of a practitioner to reply to the Committee amounts to un-
professional conduct.9
After conducting an investigation the Disciplinary Committee must consider the evid-
ence and decide whether or not it thinks there is a prima facie case of unprofessional
conduct on the part of the legal practitioner or assistant concerned. It must then refer
the case to the Council with its findings and recommendations for further action.10
Action by Council of Society

The options open to the Council of the Law Society on receipt of the Disciplinary
Committee’s findings and recommendations are as follows:
 If the Council considers that further investigation is necessary, it must refer the
matter back to the Disciplinary Committee for that investigation to be carried
out.11
 If it considers that the conduct complained of does not amount to unprofessional
conduct, or if it considers for any other reason that the allegation should not be
the subject of inquiry by the Disciplinary Tribunal, the Council may take
whatever action it considers appropriate, including admonishing the legal practi-
tioner or assistant concerned and ordering him or her to pay a fine of up to
$2 00012 — though before it does so it must allow him or her to make written rep-
resentations.13 If the Council decides to take no further action in the matter, it
must inform the complainant and the legal practitioner or assistant concerned ac-
cordingly.14
 If the allegation is or is likely to be the subject of criminal proceedings, the Coun-
cil may defer action until the proceedings have been completed.15
7
Paragraph 3(24) of the Schedule to the Legal Practitioners (Code of Conduct) By-laws, 2018 (S.I. 37
of 2018).
8
9
10
11
12
This amount is in Zimbabwean dollars, which are currently worthless.
13
Section 26(2), proviso (i) of the Legal Practitioners Act [Chapter 27:07].
14
By-law 63 of the Law Society of Zimbabwe By-laws, 1982. Once again, note that the complainant
must be informed, though unlike the Secretary the Council does not have to proceed with a case if the
complainant insists.
15
Section 26(2), proviso (ii) of the Legal Practitioners Act [Chapter 27:07].
 In any other case the Council must refer the matter to the Disciplinary Tribunal
for an inquiry.16
The Council may refer a case to the Disciplinary Tribunal without prior investigation
by the Disciplinary Committee:
 if the legal practitioner or assistant concerned has been convicted of an offence
which the Council considers amounts to unprofessional conduct; or
 the Council considers that delay would prejudice the public or the administration
of justice or the reputation of the profession.
The procedure to be followed by the Disciplinary Tribunal in dealing with cases re-
ferred to it is set out in the Legal Practitioners (Disciplinary Tribunal) Regulations,
1981 (S.I. 580 of 1981).17
A reference18 to the Disciplinary Tribunal must be in writing, signed on behalf of the
Society, and must set out the allegations of unprofessional conduct against the legal
practitioner or assistant concerned.19 It must contain a summary of the evidence suffi-
cient to inform the practitioner or assistant of the material facts on which the Society
relies, and where appropriate must contain a list of possible witnesses and a brief sum-
mary of the evidence that each witness will give. It must be filed with the Registrar of
the High Court.20
In Pitluk v Law Society of Rhodesia 1974 (2) RLR 245 (A), the Law Society was re-
commended to indicate the penalty it considered should be imposed on the legal prac-
titioner against whom it was bringing disciplinary proceedings, since the Society’s
views would be of value to the court (now the Tribunal).21
Although the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981, permit
persons other than the Law Society to apply to the Tribunal for the exercise of its dis-
ciplinary powers, section 26 of the Act seems to envisage that only the Society may
refer matters to the Tribunal, and this is probably the true position, for the following
reasons:22
 A legal practitioner against whom disciplinary proceedings are brought may suf-
fer devastating loss of reputation, even if the proceedings are proved to be com-
pletely unfounded. The practitioner’s partners may suffer similarly. An intoler-
able state of affairs could arise if aggrieved litigants could approach the Tribunal
directly with ill-investigated or ill-founded complaints and allegations against
practitioners.
 It is in the interests of the Tribunal that allegations against a legal practitioner
should first be investigated thoroughly by an impartial body such as the Law So-
16
17
The regulations are set out in Appendix xx6.
18
In the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981, references are called “applica -
tions”, i.e. applications to the Tribunal for it to hold an inquiry into misconduct allegations.
19
The allegations or charges must be framed specifically: Law Society of Rhodesia v Ford 1976 (2)
RLR 138 (A) at 148D. But they do not have to be framed with the technical particularity of a criminal
indictment: Randell & Bax S.A. Attorneys Handbook 3rd ed p 114.
20
Sec 3 of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
21
It should be noted, however, that this recommendation was made at a time when the Society insti -
tuted disciplinary proceedings by application to the High Court, and had to attach a draft order to the
application. That is not the case now.
22
They were set out by Tebbutt J in Hurter & Anor v Hough 1987 (1) SA 380 (C).
ciety. The Society has the investigative machinery to carry out such a thorough
enquiry.
 The views of the Law Society on professional conduct are accorded considerable
weight by the Tribunal, and the Society can only put forward those views if it has
conducted a comprehensive investigation into the facts.
 It is in the interests of the Law Society that it should bring disciplinary applica-
tions before the Tribunal. It has been created the custos morum23 of the legal pro-
fession by the Legislature. It cannot fulfil the functions and carry out the objects
which the Act has cast upon it if it is to be by-passed by individual complainants
bringing disciplinary applications.
 It is in the interests of complainants that they should lodge the complaints with
the Law Society for investigation by that body, rather than that they themselves
should bring them before the Tribunal, because they will be assured of a full, de-
tailed and impartial investigation.
In practice only the Society brings applications before the Tribunal.
Disciplinary Tribunal
The Disciplinary Tribunal is established by sec 24 of the Legal Practitioners Act and
consists of a chairperson and two other members. The chairperson is a judge or re-
tired judge, and he or she selects the other two members from a panel of names put
forward by the Council of the Law Society.
Inquiries by Disciplinary Tribunal

When a matter has been referred to it by the Society, the Disciplinary Tribunal may
refuse to hold an inquiry. There is no appeal against the Tribunal’s decision not to
hold an inquiry into a practitioner’s conduct.24
If, as is almost always the case, the Tribunal decides to hold an inquiry it must get the
Registrar to serve the reference (or application) on the respondent (i.e. the legal practi-
tioner or legal assistant concerned) and ask him or her to file a counter-statement
within 21 days.25
In his counter-statement the respondent sets out his replies to the allegations against
him and may provide a list of people whom he suggests should be called to give evid-
ence at the inquiry. The Registrar forwards a copy of the counter-statement to the So-
ciety, and the Society is entitled to file a reply to it.26
If after all this the Tribunal decides to hold an inquiry, it must get the Registrar to no-
tify the Society and the respondent of its decision and to give the Society and the re -
spondent at least 14 days’ notice of the date and time fixed for the inquiry.27
23
Guardian of the morals.
24
Law Society of Zimbabwe v Paterson 1995 (1) ZLR 372 (S).
25
26
Secs 5 and 6 of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
27
Secs 7 and 8 of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
Both the Society and the respondent have the right to appear before the Tribunal
either in person or represented by a legal practitioner. 28 Even if the respondent does
not appear, the Tribunal must proceed with the inquiry.29
The Tribunal is not bound by the Society’s views but must give them proper weight
since the Society is no ordinary litigant but seeks to safeguard the status and dignity of
the profession while protecting the interests of the public.30
The Tribunal’s proceedings are held in public unless all the parties agree the con-
trary.31
In conducting his or her defence before the Disciplinary Tribunal — indeed, during
the whole course of the disciplinary proceedings — the legal practitioner concerned is
expected to be open and candid about the conduct that has given rise to the proceed-
ings. He should co-operate with the Law Society and provide the necessary explana-
tions to enable all the facts to be placed before the Tribunal. Evasions and obstruction
have no place in disciplinary proceedings.32 Needless to say, if the practitioner con-
ducts his or her defence dishonestly, that reflects on his or her character and may rein-
force the Tribunal’s decision that suspension or striking off is appropriate in the pub-
lic interest.33
For the purposes of an inquiry the Disciplinary Tribunal has the same power as a court
to summon witnesses, take evidence on oath, and examine books and documents. 34 It
may accept evidence by way of affidavit.35
Decisions of the Disciplinary Tribunal are taken by way of a majority vote, so the
chairperson can be overruled by the two other members.36
Standard of proof of misconduct

The burden of proof at disciplinary proceedings before the Disciplinary Tribunal var-
ies with the gravity of the offence charged. Where the offence has strong criminal
connotations, such as misappropriation of trust money, the burden is on the Law Soci-
ety to prove its case beyond reasonable doubt. On the other hand, where the offence
bears no criminal implication, the burden is the ordinary civil one of a balance of
probabilities.37 The fact that the legal practitioner concerned has already been con-
28
29
Sec 11(6) of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
30
Law Society, Cape v Berrangé 2005 (5) SA 160 (C). See also Law Society of Zimbabwe v Muchand-
ibaya HH-114-2017 and the cases there cited.
31
32
Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) at 853G. See also para 3(17) of the
Schedule to the Legal Practitioners (Code of Conduct) By-laws, 2018 (S.I. 37 of 2018), which states
that it is unprofessional conduct for a practitioner to be a party to any contract or arrangement which
might preclude the Law Society from investigating any actual or potential unprofessiona, dishon-
ourable or unworthy conduct.
33
Mafara v Law Society of Zimbabwe 1987 (2) ZLR 293 (S) at 300G; Law Society, Northern
Provinces v Mogami & Ors 2010 (1) SA 186 (SCA) at 192C
34
35
36
37
Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S); see also Pitluk v Law Society of
Rhodesia 1974 (2) RLR 245 (A), where it was said that in every allegation of professional misconduct
involving an element of deceit or moral turpitude, a high standard of proof is called for and not simply
99
victed of a criminal offence would be regarded in the Tribunal as prima facie proof
that he has in fact committed the offence.38
In South Africa, the position is different: in all civil cases, including disciplinary pro-
ceedings, proof on a balance of probabilities is the acceptable measure of proof.39
Powers of Disciplinary Tribunal following inquiry

If the Disciplinary Tribunal considers that a legal practitioner or legal assistant has
been guilty of unprofessional conduct or is unfit to practise, it may:
 direct that his name should be deleted from the appropriate Register;
 suspend him;
 impose conditions on his practice;
 order him to pay a penalty of up to a fine of level 6 (currently US $300), payable
to the Law Society Compensation Fund;
 censure him; or
 caution him.40
In the case of a legal assistant, the Tribunal may in addition prohibit his registration as
a practitioner, either indefinitely or for a specified period.41
What should the Disciplinary Tribunal take into account when deciding on an appro-
priate penalty to impose on a legal practitioner found guilty of unprofessional con-
duct? The Zimbabwean courts have not formulated guidelines in any depth, beyond
saying that practitioners found guilty of misappropriation (i.e. theft or misuse) of their
clients’ trust funds will normally be struck off. 42 In England and South Africa, how-
ever, the courts have set out guidelines more comprehensively. The following consid-
erations are based on those laid down in England by Bingham MR (as he then was) in
the case of Bolton v Law Society [1994] 1 WLR 512 (CA), [1994] 2 All ER 486
(CA),), paras 12-16, with interpellations taken from other cases. Although some of
the principles have not been stated expressly in Zimbabwe, our courts seem to have
followed them implicitly:
1. A legal practitioner who is shown to have discharged his or her professional duties
with anything less than complete integrity, probity and trustworthiness must ex-
pect severe sanctions to be imposed upon him or her.
2. The decision whether to suspend or de-register a practitioner depends on such
factors as the nature of the conduct, the extent to which it reflects on the practi-
tioner’s character, the likelihood of a repetition and the need to protect the pub-
lic.43
proof on a balance of probabilities.

38
Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S)
39
Law Society, Cape v Koch 1985 (4) SA 379 (C).
40
41
42
See for example Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (S).
43
Malan & Anor v Law Society, Northern Provinces 2009 (1) SA 216 (SCA)
100
3. Any penalty imposed on an errant practitioner has two objectives: to discipline
and punish the practitioner and deter others tempted to behave the same way (the
punitive element); and secondly to protect the public.44
4. The second purpose of a penalty is the most fundamental of all: to maintain the
reputation of the legal profession as one in which every member is absolutely
trustworthy, and to protect the public against practitioners who cannot be trusted.45
To maintain this reputation and sustain public confidence in the profession, it is
often necessary to expel practitioners who are guilty of serious lapses. Otherwise
the whole profession, and the public as a whole, is injured. A profession’s most
valuable asset is its collective reputation and the confidence which that reputation
inspires.
5. The most serious view is taken of proved dishonesty on the part of a legal practi-
tioner, whether or not the practitioner has been subjected to criminal proceedings
and criminal penalties. In such cases, no matter how strong the mitigation, the
practitioner should expect to be struck off the Register unless the circumstances
are exceptional.46 The legal profession is an honourable one which demands com-
plete honesty and integrity from its members.47
6. A slightly less serious view is taken of conduct which, while not dishonest, falls
below the standards of integrity, probity and trustworthiness required by the pro-
fession. Nevertheless, such misconduct remains very serious indeed in a member
of a profession whose reputation depends upon trust. A striking-off order will not
necessarily follow in such cases, but it may well do so. Suspension is the normal
penalty for such conduct, except in very unusual and venial cases.
7. For example, the fact that a court finds that a practitioner is unable to administer
and conduct a trust account does not mean that striking-off should follow as a
matter of course; but conversely it does not follow that striking-off is not an ap-
propriate order. It may be necessary in order to stem an erosion of professional
ethical values.48
8. A further objective of an order of suspension is to be sure that the offending prac-
titioner does not have the opportunity to repeat the offence. It is hoped that exper-
ience of suspension will make the offender meticulous in future about complying
with the required standards. But a mere suspension from practice will seldom in
itself transform a person who is unfit to practise into one who is fit. A suspension
order should therefore be conditional upon the cause of unfitness being removed.
For example, if a practitioner is found unfit because of an inability to keep proper
books, the condition of suspension must be such as to deal with the inability, oth-
erwise the person will return to practice with the same inability or disability. 49
44
See also Malan & Anor v Law Society, Northern Provinces 2009 (1) SA 216 (SCA).
45
Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (S) at 392.
46
See also Law Society v Wilson [2006] EWHC 1022 (Admin) and Malan & Anor v Law Society,
Northern Provinces 2009 (1) SA 216 (SCA) at 221D-E. In contrast, a more lenient approach was taken
in Bar Association of Rhodesia v M 1976 (1) RLR 243 (G), where a practitioner who knowingly issued
a dud cheque to pay for a court record was given a wholly-suspended six-month suspension from prac-
tice. The practitioner repaid the court’s leniency by committing a further act of dishonesty some years
later, for which he was finally struck off.
47
Summerley v Law Society, Northern Provinces 2006 (5) SA 613 (SCA) at 621A-D.
48
Malan & Anor v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) at 221F-H.
49
Malan & Anor v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) at 220F.
101
9. Because orders made by the Tribunal are not primarily punitive, it follows that
considerations which would ordinarily weigh in mitigation of punishment have
less effect than they do in the case of sentences imposed in criminal cases. Mitig-
atory factors personal to the offender (e.g. the hardship that he and his family will
suffer if the practitioner is suspended or struck off) are relevant and should be
considered. But they do not affect the essential issue, which is the need to main-
tain public confidence in the unquestionable integrity, probity and trustworthiness
of all legal practitioners. The reputation of the profession is more important than
the fortunes of an individual member. Membership of a profession brings many
benefits, but that is a part of the price.50
Cases where inquiry need not be held

The Council of the Law Society and the Disciplinary Tribunal may exercise their dis-
ciplinary powers without holding an inquiry, where the legal practitioner concerned
has been convicted, either in or outside Zimbabwe, of a criminal offence which the
Council or the Tribunal considers amounts to unprofessional conduct. Before exer-
cising any such power, however, the Council or the Tribunal must give the practi-
tioner an opportunity to tender a written explanation of his conduct.51
Publication of decisions of Disciplinary Tribunal

The Disciplinary Tribunal must notify the Society and the Registrar of the High Court
of its decisions and, if the chairperson of the Tribunal so directs, the Registrar must
cause them to be published.52 In any event, the Registrar must publish all decisions
which involve the deletion of a practitioner’s name from the Register or a practi-
tioner’s suspension from practice.53
Judgments of the Tribunal are open to inspection by members of the public.54
Appeals from decisions of Disciplinary Tribunal

Anyone aggrieved by an order of the Disciplinary Tribunal (i.e. the Society or the
legal practitioner or assistant concerned) may appeal against the order to the Supreme
Court, which has wide powers to confirm, vary or set aside the Tribunal’s decision or
to give any other order in the matter that it thinks just.55
The noting of an appeal does not suspend the Tribunal’s decision, 56 so a practitioner
whom the Tribunal has ordered to be suspended or whose name the Tribunal has
ordered to be deleted from the Register is not allowed to continue practising pending
the outcome of his or her appeal.
Restoration to Register
A legal practitioner whose name has been deleted from the Register may apply to the
High Court to have his or her name restored to the Register. Such an application must
50
See also Botha & Ors v Law Society, Northern Provinces 2009 (3) SA 329 (SCA) at 338B.
51
52
Sec 28(7) of the Legal Practitioners Act [Chapter 27:07] and sec 12 of the Legal Practitioners (Dis-
ciplinary Tribunal) Regulations, 1981.
53
54
Sec 11(3a) of the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981.
55
56
102
make full disclosure of the reasons for which the applicant’s name was struck off, 57
and be accompanied by a supporting recommendation from the Council of the Law
Society.58
Before granting an application for restoration to the Register, the Court must be satis-
fied that the applicant has genuinely reformed, that a considerable time has elapsed
since his name was deleted and that the probability is that, if reinstated, he will con-
duct himself honourably in the future.
As was stated in the South African case of Swartzberg v Law Society, Northern
Provinces 2008 (5) SA 322 (SCA) at 331F–H:
“The question that … confronts a court is not whether the [applicant for re-admission] has
been sufficiently punished for his misdeeds. … The issue is rather whether the [applic -
ant] is a person who can safely be trusted to faithfully discharge all of the duties and ob -
ligations relating to the profession … After all, because of the trust and confidence re -
posed by the public and the courts in practitioners, a court must be astute to ensure that
the re-admission of a particular individual will not harm the prestige and dignity of the
profession. For, by granting an application for re-admission, a court pronounces to the
world at large that the individual concerned is a fit and proper person.”
The time between the deletion of the applicant’s name and the application for restora-
tion must be sufficiently long to enable the Court to judge whether there has been re-
formation on the applicant’s part. The applicant can best satisfy the court as to his re-
formation by informing the court of his history since his name was deleted from the
Register. It will not be easy for an applicant to prove that he has reformed where he
was struck off for serious dishonesty and deception, and in such a case his chances of
readmission to the profession will be slim.59
Where appropriate, the Court needs to be satisfied that the applicant has made full
restitution to anyone who suffered loss from his conduct.60
57
Randell & Bax S.A. Attorneys Handbook 3rd ed p 131.
58
Sec 32 of the Legal Practitioners Act [Chapter 27:07]. The Council’s opinion is important; in Ex
parte Somers 1948 (1) SA 837 (T) it was said that the Law Society should appear in an application in
which a practitioner seeks restoration to the register, even if the Society does not oppose the applica -
tion, so that the Society can give its views to the court or provide the court with information.
59
Swartzberg v Law Society, Northern Provinces 2008 (5) SA 322 (SCA).
60
See generally Randell & Bax S.A. Attorneys Handbook 3rd ed pp 131–8.
103
14. JUDGES, MAGISTRATES AND PROSECUTORS
These notes have mainly been concerned with legal practitioners in private practice,
but judicial officers and public prosecutors are members of the profession too, and it
would be as well to conclude with a few words about them.
Judicial officers
Until June 2012 there was no written code of conduct applicable to judges. There is
still no written code for magistrates, though magistrates are covered by regulations
similar to those that regulate the conduct of civil servants 1. The absence of a code of
conduct dealing specifically with judicial officers has been unfortunate, because
judges and magistrates have been faced with serious ethical dilemmas in recent years,
in particular:
 how to interpret and apply the law so as to reconcile the maintenance of human
rights and freedoms with the demands of an increasingly authoritarian State;
 how to maintain their independence from commercial pressures in the face of
monetary inflation which rendered their judicial salaries increasingly worthless;
 whether they could benefit from the land redistribution exercise, while at the same
time adjudicating fairly in disputes involving those from whom the land was
taken.
A clear and comprehensive code of conduct would have helped to guide judicial of-
ficers through the moral minefields they faced and might have gone some way to
maintaining the integrity and reputation of the Bench.
Now there is a code of conduct, for judges at least (it does not apply to magistrates).
How clear and comprehensive is it?
The judicial code of ethical conduct

The code of conduct for judges was drawn up by the Judicial Service Commission and
gazetted on the 15th June, 2012.2 It applies not only to judges of the Supreme Court
and High Court but also to judges of the Labour Court and the Administrative Court.
The code sets out values which attach to judicial office, and which must be upheld by
judicial officers:
Independence
Judicial officers are enjoined to perform their duties without fear or favour and not to
be swayed by “partisan interests, public clamour or fear of criticism”. Public confid-
ence is stated to be a “fundamental ingredient to (sic) the maintenance of judicial in-
dependence.”3
Integrity
Judicial officers must ensure that their conduct, in and outside court, is above re-
proach in the view of reasonable, fair-minded and informed people. They must also
1
The Judicial Service Regulations, 2015 (S.I. 30 of 2015).
2
It was published in Statutory Instrument 107 of 2012 and is entitled “the Judicial Service (Code of
Ethics) Regulations, 2012. It is reproduced in Appendix 97.
3
Section 5(2) of the code.
“participate in … enforcing high standards of conduct … so that the integrity of the
judiciary may be preserved.”4
Propriety
Judicial officers must avoid impropriety and the appearance of impropriety in their
activities both in and outside court.5 In particular:
 they must not use their judicial prestige to advance their own interests or the in-
terests of their families or associates.6
 they must not accept any gifts, bequests, loans or favours in relation to things done
by them in the performance of their judicial duties, and if they become aware that
a family member or associate has received a gift from a party to legal proceedings,
they must require the party to disclose that fact to the other party or parties to the
proceedings.7
 they may write, lecture, teach and engage in other activities concerning the law,
and may receive honorariums for doing so provided the honorariums cannot reas-
onably be regarded as influencing the judicial officers in their judicial duties.8
 they may participate in civil, cultural, religious, educational or charitable activit-
ies, so long as those activities do not detract from the dignity of their office or in-
terfere with the performance of their judicial duties.9
 they must refrain from financial and business dealings which may reflect on their
impartiality, interfere with the proper performance of their judicial duties, or in-
volve them in frequent transactions or business relationships with lawyers and
other people likely to come before their courts.10
 they must not practise law, though they may give free legal advice to their family
and associates.11
 they must conduct themselves, “so far as is reasonable”, to minimise the occasions
on which they have to recuse themselves from hearing cases.12
Impartiality
Judicial officers are enjoined to perform their duties without fear, favour, bias or pre-
judice. In particular:
 they must not make public comments that may be construed as “impairing their
fairness”.13
4
Section 6(3) of the Code. The quoted words can be construed as requiring judicial officers to report
infractions of the code by other judicial officers; it is a pity the requirement was not put more clearly.
5
Section 7 of the code.
6
7
Section 8 of the code. Presumably if the party refuses to do so, the judicial officer must make the dis -
closure.
8
9
Section 9(3) of the code. Obviously there are grey areas here: would it be acceptable, for example,
for a judge to campaign for the abolition of the death sentence?
10
Section 10 of the code. The section, it will be noted, skirts round the question of whether judges
should engage in commercial farming.
11
12
13
 they must not entertain or consider ex parte communications from parties to
pending judicial proceedings.14
 they must not assign work to themselves; litigants do not have a right to choose
the judicial officers to hear their cases.15
 they must recuse themselves in any proceedings in which their impartiality may
reasonably be questioned. On the other hand, if a judicial officer discloses to the
parties the grounds on which he or she might have to recuse himself or herself,
and the parties agree that the grounds do not justify recusal, the judicial officer
“may” continue with the proceedings. The code states that a judicial officer’s in-
ability to overcome unreasonable personal bias or prejudice concerning a party is
inconsistent with the exercise of judicial office.16
 they must not actively engage in political activities, or be office-bearers or mem-
bers of political organisations.17
Equality
The code requires judicial officers to be sensitive to social diversity and not to show
prejudice or bias based on grounds such as race, colour, gender, religion, or social or
economic status.18
They must be patient, dignified and courteous towards everyone they deal with in an
official capacity.19
Competence and diligence
The code requires judicial officers to deal with cases efficiently, fairly and reasonably
promptly, and to give precedence to their judicial activities. 20 They are required to
take reasonable steps to enhance their knowledge and skills, and to keep abreast of
legal developments.21
If a judicial officer reserves judgment, he or she must ensure that it is delivered within
90 days or, in exceptional circumstances, within 180 days. The Chief Justice is given
power to issue practice notes reducing these periods.22
They must attend diligently to both their chamber work and their court cases.23
Enforcement of the code
14
Section 16(6) of the code. Although it is not clearly expressed, it means that judicial officers must
not receive representations from one party to a case in the absence of the other party.
15
16
Section 14 of the code. The grounds for recusal are substantially the same as under the common law
(see below). Note that even if the parties agree that a judicial officer should continue with proceedings,
he or she is not obliged by the code to do so. On the other hand, judicial officers have a common-law
duty to deal with all cases brought before them unless they legitimately recuse themselves.
17
18
19
20
21
Section 18 of the code. See also Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co Zimb-
abwe Ltd & Anor 2015 (2) ZLR 343 (H).
22
Section 19 of the code. It may be noted that over the past few years it has taken the Supreme Court
on average at least 180 days to deliver its reserved judgments.
23
107
According to section 25 of the code, complaints against judicial officers must be ad-
dressed to the Chief Justice (where the complaint concerns the Deputy Chief Justice
or the senior judicial officer of a court) or to the senior judicial officer of the court
concerned (where the complaint concerns any other judicial officer). If the person to
whom the complaint is addressed considers there is no merit in it, he or she must in-
form the complainant and the judicial officer concerned; if however it is considered
that there is merit in the complaint, the Chief Justice must appoint a disciplinary com -
mittee to investigate the judicial officer’s conduct. If the committee finds that a viola-
tion has indeed taken place, the Chief Justice can administer a reprimand of varying
severity or can advise the President to institute proceedings for the removal of the ju-
dicial officer under section 87 of the Constitution.24
Enforcement of the code is in the hands of the Chief Justice, so the effectiveness of
the code depends almost entirely upon his or her integrity and sense of honour.
Common-law obligations of judicial officers

The judicial code of ethical conduct is not intended to be exhaustive 25, and:26 there is
a great deal of other law — common law and custom — which lays down what is to
be regarded as proper and improper conduct on the part of judicial officers. The Con-
stitution, for example, requires public officers (including judges) to uphold the rule of
law,27 one of the essential features of which is an independent and impartial judiciary.
What follows is an outline of common-law obligations of judicial officers:
General attributes
The general attributes of a good judicial officer were set out by the former Chief
Justice, Mr Justice Gubbay, in an address to the Magistrates’ Forum:28
 Honesty and rectitude are the very minimal requirements of judicial officers. Less
than that no disciplined judiciary should accept and no disciplined society should
tolerate.
 Judicial officers must be dignified and not too talkative.
 Judicial officers must possess patience in abundance, particularly for newly-quali-
fied lawyers, and allow the parties and their representatives to make their points.
 A kind and understanding heart is perhaps the most valuable attribute a judicial of-
ficer should possess, though mercy should be combined with firmness.29
 Common sense is the common denominator of all good judicial officers.
 Judicial officers must have the courage and strength of character scrupulously to
resist extraneous influences and to decide cases strictly according to the evidence
and the law.
24
Part III of the code.
25
See section 3(2) of the code.
26
See section 3(2) of the code.
27
Section 18(1a) of the Constitution.
28
The address was published in Legal Forum (1988) vol 1 no. 1 pp. 3-10.
29
Mercy is a debatable virtue. If mercy requires a tempering of justice, then there is a sense in which it
requires a departure from justice. Thus to be merciful is, perhaps, to be unjust — which is a vice, not a
virtue. In that sense, therefore, mercy is not a virtue but a vice, a product of morally dangerous senti-
mentality. See “Displaying Compassion” by Prof J. Murphy, in The Responsible Judge ed J.I. Noonan
and K.I. Wilson (1993, Praeger, USA).
108
 Judicial officers must be industrious and diligent. A lazy judge or magistrate is a
poor servant of the law, and a clever but lazy judicial officer is an encumbrance
which may seriously erode public confidence in the judicial process.
 Judicial officers must be prompt, businesslike and punctual in the performance of
their duties, recognising that time is important for all parties and that justice
delayed is justice denied.
 Judicial officers should recognise that every case is important to at least one of the
parties, and must give the same conscientious attention to every case that comes
before them.
To this list Mr Justice McNally added a few more in another address to the same
forum:30
 Wit and humour should be employed carefully; a judicial officer should not make
jokes at the expense of witnesses, parties or their representatives. After all, they
can’t answer back.
 Judicial officers must be observant, and should watch the witnesses while they
give evidence. They should notice if an accused person is ill or if a witness is old
and frail and needs to sit down.
 Judicial officers must show respect for accused persons and ensure that other
people in court show proper respect for the accused.
 Judicial officers must control their courts, and in particular must ensure that wit-
nesses are not harried by legal practitioners.
 Judicial officers should not adjourn cases for frivolous personal reasons, nor post-
pone hearings repeatedly, nor should they delay the handing down of judgments.
Judicial officers must be paragons indeed!
Duty to hear cases
Judicial officers are bound by their judicial oath to hear the cases that come before
them, subject to their duty to recuse themselves which will be dealt with in the next
section.31 Their duty to sit has been held to be equally as strong as their duty not to sit
when disqualified.32
Duty of recusal
Where a judicial officer has such an interest, whether financial, personal or other, in
the outcome of a case, or has conducted himself in such a way, that he could be re-
garded as having become a party to the proceedings, he must recuse himself; he is
automatically barred by operation of law from hearing the case. 33 The general ap-
proach to an application for recusal was laid down by the South African Constitu-
tional Court as follows:
30
The address was published in The Forum (1989) vol 1 no. 5 pp. 3-6.
31
See President of RSA v SA Rugby Football Union 1999 (4) SA 147 (CC). The Code of Conduct for
United States Judges provides in Canon 3A(2): “A judge should hear and decide matters assigned, un-
less disqualified …”
32
President of RSA v SA Rugby Football Union 1999 (4) SA 147 (CC) at 176D-E, cited with approval
in Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1)
ZLR 226 (H).
33
See Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001
(1) ZLR 226 (H) for a thorough analysis of the law on the topic.
109
“The question is whether a reasonable, objective and informed person would on the correct
facts reasonably apprehend that the Judge has not or will not bring an impartial mind to
bear on the adjudication of the case, that is a mind open to persuasion by the evidence
and the submissions of counsel. The reasonableness of the apprehension must be as-
sessed in the light of the oath of office taken by the Judges to administer justice without
fear or favour; and their ability to carry out that oath by reason of their training and ex-
perience. It must be assumed that they can disabuse their minds of any irrelevant per-
sonal beliefs or predispositions. They must take into account the fact that they have a
duty to sit in any case in which they are not obliged to recuse themselves. At the same
time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a
fair trial and a judicial officer should not hesitate to recuse herself or himself if there are
reasonable grounds on the part of a litigant for apprehending that the judicial officer, for
whatever reasons, was not or will not be impartial.”34
In a later case, the South African Constitutional Court reiterated the following rule of
practice which, the court said, had become established for a long time:
“The question which a judicial officer should subjectively ask himself or herself, therefore,
is whether, having regard to his or her … interest in … proceedings, he or she can bring
the necessary judicial dispassion to the issues in the case. If the answer to this question is
in the negative, the judicial officer must, of his or her own accord, recuse himself or her-
self. If, on the other hand, the answer to this question is in the affirmative, the second
question to ask is whether there is any basis for a reasonable apprehension of bias on the
part of the parties … If the answer to this question is in the affirmative, the judicial of -
ficer must disclose his or her interest in the case, no matter how small or trivial that in-
terest may be. And, in the event of any doubt, a judicial officer should err in favour of
disclosure.”35
Judicial officers must not unduly take an application for recusal as a personal affront;
if it is a proper application any personal offence should be concealed, tempered by the
realisation that at the root against the rule against bias lies the very concept of judicial
independence.36
Criminal offences
The rules applicable to criminal offences committed by legal practitioners apply also
to judicial officers, but much more stringently. Whereas disciplinary action will be
taken against a legal practitioner who has been convicted of a crime only if the crime
is such as to cast doubt on the practitioner’s character or integrity, in the case of a ju-
dicial officer a conviction for almost any crime, other than a venial one, would afford
a ground for removing him or her from office. It is the duty of judicial officers to up-
hold the law in general and, in particular, to punish persons who have committed
crimes. How could a judge or magistrate, without being labelled a hypocrite, preside
over a trial and sentence a person for committing a crime of which the judge or magis-
trate has been found guilty?
Extra-judicial activities
As a corollary to the rule that judicial officers must hear the cases that come before
them, they must regulate their extra-judicial duties so as to minimise the instances in
which they will have to recuse themselves. Apart from that, of course, they must en-
34
President of RSA v SA Rugby Football Union 1999 (4) SA 147 (CC) at 177B-E.
35
Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) at 111A-C.
36
Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1)
ZLR 226 (H) at 232D.
110
sure that their extra-judicial activities do not compromise the independence, impartial-
ity and reputation of the judiciary.
The judicial code of ethics specifies some of the activities that judicial officers should
not engage in, but the code is not exhaustive, and it is helpful to look at equivalent
rules formulated in other countries. Here are some of the more pertinent ones:37
Generally
Judicial officers must not engage in any extra-judicial activity that detracts from
the dignity of their office or interferes with the performance of their judicial duties.
There can be little dispute about that rule, though its application in particular cases
may cause difficulty. A judicial officer cannot set up business as a street vendor to
sell vegetables grown on his farm, for example, but may he sell vegetables from
the boot of his car to colleagues and members of the legal profession? Probably
not.
Lecturing and writing

Judicial officers may lecture and write on legal topics; indeed, because of their po-
sition in the legal profession they are singularly well qualified to do so. But they
must ensure that through their lectures or writing they do not cast doubt on their
capacity to decide impartially issues that are likely to come before them.
Judicial officers may also lecture and write on non-legal topics, so long as they do
not impair the dignity of their office or interfere with the performance of their judi-
cial duties.
Membership of organisations devoted to legal development

Judicial officers may become members and officers of organisations devoted to the
improvement of the law and the legal system generally, but should not actively par-
ticipate in fund-raising activities for such organisations.
Membership of law firms

Needless to say, judicial officers should not become, or remain, partners or em-
ployees of firms of legal practitioners, nor should they act as advisers or consult-
ants to such firms. If they are members, employees or advisers of any such firm
when they are appointed to judicial office, they must immediately sever all connec-
tion with the firm.
Political activities
We have seen that legal practitioners are free to engage in lawful political activit-
ies, and even unlawful ones in some cases, without incurring disciplinary sanc-
tions. The same is not true for judicial officers. They must eschew all activities
that may give rise to a reasonable suspicion that they favour one political party or
organisation over another.
There has been a tendency in this country to appoint Ministers and Deputy Minis-
ters of Justice to the High Court Bench. Some of them have made good judges,
37
The statements that follow are based on the Code of Conduct for United States Judges, adopted by
the Judicial Conference in 1973 and revised in 1999 and 2000
(http://www.uscourts.gov/guide/vol2/ch1). See also the Lord Chancellor’s Guidance on Outside Activ-
ities and Interests of Judges (2000).
111
some have not. In general, the tendency is an unhealthy one since it leads to the
perception that judicial appointment is a proper reward for successful politicians.
Commercial activities
Judicial officers should restrict their extra-judicial commercial activities to a min-
imum. If they become involved in business activities they will inevitably enter into
business relationships with other people, and if disputes arise from those relation-
ships it will be impossible for the judicial officers concerned, and difficult for their
colleagues, to adjudicate fairly on the disputes. In other words, the more a judicial
officer engages in commercial activities the more likely it is that conflicts of in-
terest will arise.38 And of course the more time a judicial officer devotes to his
commercial activities the less time he will have to perform his judicial duties.
Hence large-scale commercial farming activities are incompatible with judicial of-
fice. Commercial farming on any reasonably large scale involves entering into
business relationships with a great number of different entities, and it is a full-time
occupation.
Judicial officers should not become directors, managers or partners of commercial
enterprises other than enterprises closely controlled by members of the officers’
families. They should not enter into remunerated employment of any sort (apart
from their judicial office) because an employer-employee relationship, in which
the employer can direct what work is to be done and the way it is to be done, is in -
compatible with the independence expected of a judicial officer.
So far as magistrates are concerned, their involvement in commercial activities is
further restricted by Civil Service regulations (which will be replaced in due course
by regulations made by the Judicial Service Commission).
Interviewing witnesses
It should go without saying that a judicial officer must never interview a witness
privately, in the absence of the parties to the legal proceedings concerned. 39 Nor
should he, in open court, speak to a witness in a language that is not understood by all
the parties to the proceedings.40
Former judges
Generally it is regarded as undesirable for former judges to appear in court as legal
practitioners.
According to the Canadian Bar Association’s Code of Professional Conduct41:
“A judge who returns to practice after retiring or resigning from the bench should not
(without the approval of the governing body 42) appear as a lawyer before the court of
which the former judge was a member or before courts of inferior jurisdiction thereto
in the province where the judge exercised judicial functions. If in a given case the
former judge should be in a preferred position by reason of having held judicial office,
the administration of justice would suffer; if the reverse were true, the client might
38
It was his commercial activities that gave rise to Judge Paradza’s downfall: see S v Paradza HH-7-
2006 (2006 (1) ZLR 20 (H)).
39
S v Jenkins 1985 (2) ZLR 193 (S).
40
Ibid.
41
Para 4 of the Commentary to the rule stated in Chapter XIX.
42
Of the legal profession — in Zimbabwe’s case, the Law Society.
112
suffer. There may, however, be cases where a governing body would consider that no
preference or appearance of preference would result, for example, where the judge
resigned for good reason after only a very short time on the bench.”
In England the rule against former judges resuming legal practice is even strictervery
strict: they are not allowed to provide services on any basis as an advocate in any
court or tribunal in return for remuneration, nor are they allowed to give legal advice
to anyone.43
Thise rule against former judges appearing in court has applied in practice in Zimb-
abwe, though it has never been formally adopted. None of the judges who have left
the Bench in recent years has appeared in court as a legal practitioner. And when the
late Mr I. Maisels QC, who left the Southern Rhodesian Bench in 1963, represented
an accused person in a criminal trial in the late 1970s, judicial eyebrows were raised
at his appearance in court, although he was not prevented from appearing.
The rule has never applied to magistrates. People who have left the magisterial bench
and entered private practice have appeared freely before their former colleagues.
Needless to say, it would be grossly improper for a former judge or magistrate to be-
come professionally involved in a case over which he or she presided when on the
Bench.
Prosecutors
General
Like other practitioners, prosecutors have a duty to be truthful, honest, candid and fair
in all their dealings. The duties of a prosecutor were set out by Gubbay CJ in Smyth v
Ushewokunze & Anor 1997 (2) ZLR 544 (S) at 549C-G as follows:
“A prosecutor must dedicate himself to the achievement of justice. See R v Banks [1916]
2 KB 621 at 623. He must pursue that aim impartially. He must conduct the case against
the accused person with due regard to the traditional precepts of candour and absolute
fairness. Since he represents the State, the community at large and the interests of justice
in general, the task of the prosecutor is more comprehensive and demanding than that of
the defending practitioner. See R v Riekert 1954 (4) SA 254 (SWA) at 261C-E. Like
Caesar’s wife, the prosecutor must be above any trace of suspicion. As a ‘minister of the
truth’ he has a special duty to see that the truth emerges in court. See R v Riekert supra at
261F-G; S v Jija & Ors 1991 (2) SA 52 (E) at 67J-68B. He must produce all relevant
evidence to the court and ensure, as best he can, the veracity of such evidence. See S v
Msane 1977 (4) SA 758 (N) at 759A; S v N 1988 (3) SA 450 (A) at 463E. He must state
the facts dispassionately. If he knows a point in favour of the accused, he must bring it
out. See S v Van Rensburg 1963 (2) SA 343 (N) at 343F-G; Phato v Attorney-General,
Eastern Cape & Anor 1994 (2) SACR 734 (E) at 757d. If he knows of a credible witness
who can speak of facts which go to show the innocence of the accused, he must himself
call that witness if the accused is unrepresented; and if represented, tender the witness to
the defence. See R v Filanius 1916 TPD 415 at 417; S v Nassar 1995 (1) SACR 212
(Nm) at 218a. If his own witness substantially departs from his proof 44, he must, unless
there is special and cogent reason to the contrary, draw the attention of the court to the
discrepancy, or reveal the seriously contradictory passage in the statement to the defend-
ing practitioner. See S v Hassim & Ors (2) 1971 (4) SA 492 (N) at 494B; S v Masinda
43
Para 9.1 of the Guide to Judicial Conduct published by the Judges’ Council of England and Wales
(revised August 2011).
44
A proof in this sense means a written statement a witness made to the police.
113
en ’n Ander 1981 (3) SA 1157 (A) at 1162F; S v Xaba 1983 (3) SA 717 (A) at 728H-
729A.”
Prosecutors are now governed by a code of conduct, published in 2015. 45 The Code is
set out in Appendix 113.
Prosecutors must be impartial. They should not, for example, appear for the State in
criminal proceedings if they are related to the accused or the complainant or in any
other cases where their conduct may reasonably be questioned. If in such a case a
prosecutor considers he or she can act impartially, he or she should disclose the in-
terest or relationship to the parties (i.e. to the judicial officer and the accused or his
legal practitioner) and continue only if the parties agree that the interest or relation-
ship is immaterial or insubstantial.46
A prosecutor must be careful not to be inveigled into using criminal process to settle
civil disputes. For example, if a garage has repaired a customer’s motor vehicle and is
holding it under an artificer’s lien pending payment for the repairs, a prosecutor must
not (in the absence of clear grounds for suspecting that the garage-owner is guilty of
theft or extortion) order the police to seize the vehicle and then to hand it over to the
customer, thereby destroying the lien. Such conduct would be a gross abuse of pro-
cess.47
Duty towards unrepresented accused persons

Prosecutors, like the courts themselves, have a particular duty to be fair towards un-
defended accused persons.
Duty to disclose discrepancies

A prosecutor has a duty to disclose material inconsistencies between what a State wit-
ness has said in court and what he told the police in his statement. 48 If the accused is
legally represented, the disclosure should be made to the defence counsel by making
the statement available to him; if not, the court should be informed about the discrep-
ancy. Minor discrepancies need not be disclosed, however, but if in doubt as to
whether a discrepancy is material or minor the prosecutor should disclose it.49
Another way to deal with discrepancies is by impeaching the witness’s credibility.
This involves confronting the witness with his previous statement. The court must
first be informed of the discrepancy, then the witness must be asked if he made the
statement; he must be given sufficient particulars about when and where the state -
ment was made to allow him to identify it. If the witness denies making it, then the
police officer who recorded it should be called, plus any interpreter. If the statement
is proved, or the witness admits making it, the witness must be asked to explain the
discrepancy.50 If a witness is impeached, his evidence is wholly discredited. This is
the course to follow if the prosecutor does not want the witness’s evidence to be used.
Duty to call witnesses

45
The National Prosecuting Authority (Code of Ethics) Regulations, 2015 (SI 83 of 2015).
46
S v Mpofu 2013 (1) ZLR 297 (H) and section 7(4) of the National Prosecuting Authority (Code of
Ethics) Regulations, 2015 (SI 83 of 2015) (see Appendix 113).
47
Deven Engineering (Pvt) Ltd v Chiyangwa & Ors 2007 (1) ZLR 58 (H
48
S v Mutsinziri 1997 (1) ZLR 6 (H) and the cases there cited.
49
S v Mutsinziri supra
50
S v Mazhambe & Ors 1997 (2) ZLR 587 (H).
114
A prosecutor has a general discretion as to what witnesses will be called to support the
prosecution case, but in the exercise of that discretion he must not be actuated by any
oblique motive. He must not refuse to call witnesses (i.e. render them available for
trial) merely on the ground that their testimony conflicts with that of other witnesses.
He must have available the witnesses whom he has indicated to the defence he intends
to call.51
Duty to disclose witnesses’ statements

It used to be said that police dockets were privileged and that prosecutors were under
no obligation to disclose their contents, in particular witnesses’ statements, to legal
practitioners appearing for accused persons.52 That rule no longer applies, in view of
the constitutional imperative to ensure a fair trial. In S v Sithole 1996 (2) ZLR 575
(S), it was held that:
 in High Court proceedings, an accused person ought ordinarily to be entitled to
copies of statements of witnesses whom the State proposes to call, if the accused
so requests;
 the State may decline a request to provide copies of witnesses’ statements on
grounds of public policy, and it will be for the court to determine whether the
State has discharged the onus of establishing that disclosure will not be in the pub-
lic interest. In reaching that decision, it may be necessary for the court to have
sight of the statements;
 to obviate the need for postponements, an application for disclosure should be
made well in advance of the trial.
See also S v Sefadi 1995 (1) SA 433 (D) and S v Chibaya & Ors 2007 (1) ZLR 71 (H).
Miscellaneous duties (from Reid Rowland, Prosecutors Handbook)

A prosecutor must not conceal evidence: if there is evidence in the docket favourable
to the defence, he must disclose it.
A prosecutor must keep information regarding accused persons confidential. He must
not conceal it from the defence, of course, but otherwise he must treat the evidence
with the same degree of confidentiality as practitioners in private practice must treat
information concerning their clients.53
A prosecutor must be punctual, and must advise the court and defence counsel if wit-
nesses are running late.
A prosecutor must not give gratuitous advice to accused persons, save on matters such
as the date and place of trial, who will be called as witnesses, etc. A prosecutor must
not recommend legal practitioners to accused as defence counsel; at most he or she
may provide accused persons with a list of practitioners practising in the town. A pro-
secutor should also avoid giving gratuitous advice to victims of crime as to remedies
open to them ‒ apart of course from the option of claiming compensation in terms of
Part XIX of the Criminal Procedure and Evidence Act [Chapter 9:07].54
51
S v Beahan 1989 (2) ZLR 20 (S).
52
R v Steyn 1953 SR 76 and (on appeal) 1954 (1) SA 324 (A).
53
See section 6(10) of the National Prosecuting Authority (Code of Ethics) Regulations, 2015 (SI 83 of
2015)
54
For example, a prosecutor should not advise rape victims as to the steps to be taken to terminate a
pregnancy: Mapingure v Minister of Home Affairs & Ors 2014 (1) ZLR 369 (S).
115
116
APPENDIX 1: LEGAL PRACTITIONERS ACT
The Legal Practitioners Act [Chapter 27:07] has been amended by:
Acts 15/1981, 32/1981, 14/1982, 15/1983, 31/1983, 10/1986, 29/1989, 23/1991,
22/1992 (s. 15), 11/1996 (as modified by SI 135/1996), 18/1996, 14/1999, 10/2000,
22/2001, 6/2005, 9/2006, 5/2014.
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title.
2. Interpretation.
PART II
REGISTER AND REGISTRATION
3. Register of Legal Practitioners.
4. Application for registration.
5. Registration.
6. Application for deletion from Register.
7. Exemption certificate.
PART III
PRIVILEGES, RESTRICTIONS AND OFFENCES IN CONNECTION WITH PRACTICE
8. Privileges of registered legal practitioners.
9. Offences by unqualified persons.
10. Prohibition against unqualified persons preparing certain instruments.
11. Prohibition against practice by or in association with unqualified persons.
12. Prohibition against practice without practising certificate.
12A. Pre-practice examinations and training.
PART IV
TRUST ACCOUNTS
13. Opening of trust accounts.
14. Books of account.
15. Trust account moneys excluded from insolvency or attachment.
16. Control of operation of trust account.
17. Orders as to costs.
18. Saving of liability of bank, etc., in relation to trust account.
19. Limitation of set-off, etc., against trust account.
20. Saving of set-off, etc., against trust account.
21. Council of the Society may require certified balance of trust account.
22. Offences in relation to trust accounts.
PART IVA
CONTINGENCY FEE ARRANGEMENTS
22A. Interpretation in Part IVA.
22B. Legal practitioners may enter into contingency fee arrangements.
22C. Form of contingency fee arrangement.
22D. Non-disclosure of contingency fee arrangement.
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22E. Maximum fees payable under contingency fee arrangement.
22F. Review of contingency fee arrangement or fee payable.
PART V
DISCIPLINE
23. Unprofessional, dishonourable or unworthy conduct.
24. Disciplinary Tribunal.
25. Evidence of unprofessional, dishonourable or unworthy conduct from courts.
25A. Prohibition of operation of trust accounts and business accounts.
26. Council of the Society to refer cases to Disciplinary Tribunal.
26A. Suspension from practice.
27. Taking of evidence by Disciplinary Tribunal.
28. Powers of Disciplinary Tribunal.
29. Appeals from decisions of Disciplinary Tribunal.
30. Suspension of practitioner upon insolvency.
31. Registrar to make appropriate entry in Register and to publish order of Disciplinary
Tribunal.
32. Restoration to Register.
PART VI
COUNCIL FOR LEGAL EDUCATION
33. Interpretation in Part VI.
34. Council for Legal Education.
35. Functions and powers of Council for Legal Education.
36. Membership of Council for Legal Education.
37. Disqualifications for membership of Council for Legal Education
38. Terms and conditions of office of members of Council for Legal Education.
39. Vacation of office by members of Council for Legal Education.
40. Meetings and procedure of Council for Legal Education.
41. Committees of Council for Legal Education.
42. Minutes of proceedings of Council for Legal Education and committees.
43. Secretary and other staff of Council for Legal Education.
44. Funds of Council for Legal Education.
45. Accounts of Council for Legal Education.
46. Validity of decisions and acts of Council for Legal Education and committees.
47. Execution of instruments by Council for Legal Education.
48. Exemption from liability of Council for Legal Education and its members, employees
and agents.
49. Rules made by Council for Legal Education.
49A. Appeals against decisions of Council for Legal Education.
PART VII
LAW SOCIETY OF ZIMBABWE
50. Interpretation in Part VII.
51. Law Society of Zimbabwe.
52. Membership of Society.
53. Objects and powers of Society.
54. Constitution of Council of the Society.
55. Management and control of Society by Council of the Society.
56. Absence of councillor from Zimbabwe or failure to attend meetings of Council of the
Society.
57. Casual vacancies.
58. Casual vacancy not to invalidate acts of Council of the Society.
59. Representative of councillor to attend meetings of Council of the Society.
118
60. Annual general meetings.
61. Special general meetings.
62. Quorum at general meetings.
63. Society may make by-laws.
PART VIII
LAW SOCIETY COMPENSATION FUND
64. Law Society Compensation Fund.
65. Assets of Compensation Fund.
66. Expenditure from Compensation Fund.
67. Audit of Compensation Fund.
68. Law Society Compensation Fund Trustees.
69. Functions and powers of Board of Trustees.
70. Compensation for loss through dishonesty of registered legal practitioner.
71. Subrogation of Board of Trustees.
72. Quorum of Council and Society in respect of business of Compensation Fund.
73. Rules.
PART IX
PRACTISING CERTIFICATES
74. Applications for practising certificates.
75. Issue, renewal and refusal of practising certificates.
76. Period of validity of practising certificates.
77. Terms and conditions of practising certificates.
78. Withdrawal of practising certificate.
79. Appeals from decisions of Council of the Society re practising certificates.
PART X
GENERAL
80. Existing practitioners to be registered as notaries public and conveyancers.
81. Audit certificates.
82. Right of State and certain parastatal employees to appear in court.
83. Non-recovery of fee.
84. Evidence.
85. Special provisions relating to legal practitioners employed by State.
86. Oaths of loyalty and of office.
87. Regulatory power.
AN ACT to consolidate and amend the laws relating to the legal profession and to make
new provision in regard thereto; and to provide for matters incidental to or connected with
the foregoing.
[Date of commencement: 22nd May, 1981]
PART I
PRELIMINARY
1 Short title
This Act may be cited as the Legal Practitioners Act [Chapter 27:07].
2 Interpretation
(1) In this Act—
“bank” means a bank which is registered as a commercial bank in terms of the Banking
Act [Chapter 24:01];
119
“Board of Trustees” means the Law Society Compensation Fund Trustees referred to in
section sixty-eight;
“building society” means a building society which is registered in terms of the Building
Societies Act [Chapter 24:02];
“by-laws” means by-laws made by the Society in terms of section sixty-three;
“Compensation Fund” means the Law Society Compensation Fund referred to in section
sixty-four;
“Council for Legal Education” means the Council for Legal Education established in
terms of section thirty-four;
“Council of the Society” means the Council of the Society constituted in terms of section
fifty-four;
“Disciplinary Tribunal” means the Disciplinary Tribunal established in terms of section
twenty-four;
“fixed date” means the 22nd May, 1981;
“limited practising certificate” means a practising certificate issued in terms of subsection
(4) of section seventy-five;
“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other
Minister to whom the President may, from time to time, assign the administration of
this Act;
“practising certificate” means a practising certificate issued in terms of section seventy-
five, and includes a limited practising certificate;
“reciprocating country” means a country declared to be a reciprocating country in terms
of subsection (2);
“Register” means the Register of Legal Practitioners, Notaries Public and Conveyancers
referred to in section three;
“registered” means registered in the Register;
“Registrar” means the Registrar of the High Court;
“regulations” means regulations made by the Minister in terms of section eighty-seven;
“residential exemption certificate” means a residential exemption certificate issued in
terms of section seven;
“Society” means the Law Society of Zimbabwe referred to in section fifty-one.
(2) Where the Minister is satisfied that the law of any country other than Zimbabwe
permits the admission to the practice of law in that country, whether generally or in particular
cases or for particular purposes, of legal practitioners normally resident in Zimbabwe he may,
after consultation with the Chief Justice and the Council for Legal Education, declare such
country by statutory instrument to be a reciprocating country.
PART II
REGISTER AND REGISTRATION
3 Register of Legal Practitioners

(1) The Registrar shall keep a register of legal practitioners to be known as the Register
of Legal Practitioners, Notaries Public and Conveyancers.
(2) It shall be the duty of the Registrar to—
(a) enter in the Register—
(i) the name of every person which he has been directed to enter in the Register
by or in terms of this Act, whether as a legal practitioner, notary public or
conveyancer and the date of his registration as such;
120
(ii) such other particulars relating to registered persons as may be prescribed in
regulations;
(b) make such alterations in the Register as may from time to time be necessary by
reason of any change in the name or other particulars of a registered person;
(c) delete from the Register the name of any registered person on the death of that per -
son or when required to do so by or in terms of this Act.
(3) The Registrar shall issue to every person whose name is entered in the Register a
separate certificate in the form prescribed in regulations specifying that the person concerned
is registered as a legal practitioner, notary public or conveyancer, as the case may be.
4 Application for registration

(1) Any person who wishes to be registered, whether as a legal practitioner, a notary
public or a conveyancer shall make application therefor to the High Court in the form and
manner prescribed in regulations.
(2) An application for registration as—
(a) a legal practitioner may be combined with an application for registration as a notary
public and additionally, or alternatively, as a conveyancer; and
(b) a notary public may be combined with an application for registration as a conveyan -
cer, and vice versa.
5 Registration
(1) Upon application being made to it in terms of section four for registration as a legal
practitioner, the High Court may grant the application and direct the Registrar to register the
applicant as a legal practitioner, if the High Court is satisfied that the applicant—
(a) has complied with the formalities prescribed in regulations in relation to the applica-
tion; and
(b) possesses the qualifications prescribed in rules made by the Council for Legal Edu-
cation in terms of section forty-nine and has had such practical experience, if any, as
may be prescribed in such rules; and
(c) is normally resident in Zimbabwe or a reciprocating country or has been granted a
residential exemption certificate; and
(d) is of or above the age of twenty-one years; and
(e) is not an unrehabilitated insolvent or has not assigned his estate for the benefit of or
made a composition or other arrangement with his creditors, which composition or
arrangement has not been rescinded or set aside; and
(f) is a fit and proper person to be so registered;
and if the High Court is not so satisfied the High Court shall, subject to subsection (3), refuse
the application.
(2) Upon application being made to it in terms of section four for registration as a not-
ary public and additionally, or alternatively, as a conveyancer, the High Court may grant the
application and direct the Registrar to register the applicant as a notary public and addition-
ally, or alternatively, as a conveyancer, if the High Court is satisfied that the applicant—
(a) has complied with the formalities prescribed in regulations in relation to the applica-
tion; and
(b) is registered as a legal practitioner or will be so registered at the same time as he is
registered as a notary public or a conveyancer; and
(c) possesses the qualifications prescribed in rules made by the Council for Legal Edu-
cation in terms of section forty-nine and has had such practical experience, if any, as
may be prescribed in such rules; and
121
(d) is a fit and proper person to be so registered;
and if the High Court is not so satisfied the High Court shall, subject to subsection (3), refuse
the application.
(3) Upon good cause shown, the High Court may condone non-compliance with any
technical formality in relation to an application in terms of section four.
6 Application for deletion from Register

(1) A registered legal practitioner may apply to the High Court for his name to be de-
leted from the Register and the High Court may, if satisfied that the application has not been
made in order to avoid any disciplinary action being taken in terms of this Act, grant the ap -
plication and direct the Registrar to make the appropriate deletion from the Register.
(2) The Council of the Society may, where there is reason to believe that a registered
legal practitioner has ceased to be normally resident in Zimbabwe or a reciprocating country
and that such legal practitioner has not been granted a residential exemption certificate, apply
to the High Court for an order calling upon the registered legal practitioner concerned to show
cause why his name should not be deleted from the Register.
(3) Upon the return day of an order granted in terms of subsection (2), the High Court
may, if satisfied that the registered legal practitioner concerned has ceased to be normally res-
ident in Zimbabwe or a reciprocating country and has not been granted a residential exemp -
tion certificate, direct the Registrar to make the appropriate deletion from the Register.
7 Exemption certificate
(1) Where the Minister, after consultation with the Council for Legal Education, is sat-
isfied that, having regard to the importance, complexity or special circumstances of the mat -
ter, it is just and reasonable for a person to obtain the services of a legal practitioner who has
special or particular experience relating to such matter and that such legal practitioner is not
normally resident in Zimbabwe [or]1 but is from a reciprocating country, he may grant a certi-
ficate exempting the legal practitioner concerned from satisfying the requirement of subpara-
graph (iii) of paragraph (a) of subsection (1) of section five of being normally resident in Zim-
babwe or a reciprocating country.2
[Subsection as amended by sec 32 of Act 6 of 2005]
(2) Where a residential exemption certificate has been granted—
(a) the legal practitioners concerned shall not engage in the practice of the profession of
law in Zimbabwe except in relation to the matter for which the residential exemp -
tion certificate was granted; and
(b) it shall automatically lapse within seven days of the completion of the matter for
which it was granted.
[Subsection substituted by sec 2 of Act No. 10 of 2000]]
(3) A copy of every residential exemption certificate shall be submitted to the Council
of the Society.
(4) Where a registered legal practitioner fails to make an application pursuant to para-
graph (b) of subsection (2) the Council of the Society may do so.
PART III
PRIVILEGES, RESTRICTIONS AND OFFENCES IN CONNECTION WITH PRACTICE
8 Privileges of registered legal practitioners
1
This word was left in the subsection, presumably in error, by sec 32(a) of Act 6 of 2005. It should be
disregarded.
2
The reference appears to be incorrect. It should be to section 5(1)(c).
122
(1) Subject to this Act, a registered legal practitioner who is in possession of a valid
practising certificate issued to him may practise the profession of law.
(2) Without derogation from the generality of subsection (1), but subject to this Act—
(a) a registered legal practitioner who is in possession of a valid practising certificate is-
sued to him shall have the right of audience in any court in which persons are en-
titled by law to legal representation;
(b) a registered notary public who is in possession of a valid practising certificate issued
to him may execute, attest and authenticate anything which is required to be ex-
ecuted, attested or authenticated by a notary public;
(c) a registered conveyancer who is in possession of a valid practising certificate issued
to him may prepare any document for registration in a Deeds Registry or for attesta-
tion or execution by a registrar of deeds.
9 Offences by unqualified persons

(1) No person other than a registered legal practitioner, registered notary public or re-
gistered conveyancer shall practise as such or in any manner hold himself out as or pretend to
be or make use of any words or any name, title, designation or description implying or tend-
ing to the belief that he is a legal practitioner, notary public or conveyancer, as the case may
be, or is recognised by law as such.
(2) Subject to any other law, no person other than a registered legal practitioner who is
in possession of a valid practising certificate issued to him shall—
(a) sue out any summons or process or commence, carry on or defend any action, suit
or other proceeding in any court of civil or criminal jurisdiction in the name of any
other person; or
(b) for or in expectation of any fee, commission, gain or reward in any way instruct or
assist any other person to sue out or threaten to sue out any summons or process or
to commence, carry on or defend any action, suit or other proceeding in any court of
civil or criminal jurisdiction; or
(c) appear, plead or act in the capacity of a legal practitioner for or on behalf of any
other person in any action, suit or other proceeding in any court of civil or criminal
jurisdiction:
Provided that, nothing in this subsection contained shall prevent any director or officer in
the sole employment of a corporation or any member of a partnership doing any such act as is
mentioned in paragraph (a) in the name of such corporation or partnership.
(3) Subject to any other law, no person other than a registered notary public who is in
possession of a valid practising certificate issued to him shall execute, attest or authenticate
anything which is required to be executed, attested or authenticated by a notary public.
(4) Subject to any other law, no person other than a registered conveyancer who is in
possession of a valid practising certificate issued to him shall, for or in expectation of any fee,
commission, gain or reward, prepare any document for registration in a Deeds Registry or for
attestation or execution by a registrar of deeds.
(5) If any person contravenes this section, he shall be guilty of an offence and liable to a
fine not exceeding level eight or to imprisonment for a period not exceeding one year or to
both such fine and such imprisonment.
[Subsection as amended by section 4 of Act No. 22 of 2001]
10 Prohibition against unqualified persons preparing certain instruments

(1) Save as provided in subsections (4) and (5), any person, not being a registered legal
practitioner who is in possession of a valid practising certificate issued to him, who in return
123
for or in expectation of any fee, commission, gain or reward, direct or indirect, to himself or
to any other person, draws or prepares any of the following instruments or documents—
(a) a will or other testamentary instrument;
(b) any legal process in any action, suit or other proceeding in a court of civil or crim-
inal jurisdiction;
(c) any contract, deed or instrument relating to the creation or dissolution of any part-
nership or any variation of the terms thereof;
(d) the memorandum or articles of association of a company;
(e) a contract, deed or instrument for the acquisition, disposal, exchange or lease of im-
movable property or any real right relating thereto, other than a contract, deed or in -
strument for the lease of immovable property for a period of less than five years;
shall be guilty of an offence and liable to a fine not exceeding level eight or to imprisonment
for a period not exceeding one year or to both such fine and such imprisonment.
[Subsection as amended by sec 4 of Act No. 22 of 2001]
(2) If a person draws or prepares a will or other testamentary instrument in return for
the appointment of himself or a particular person as executor to whom commission or other
remuneration will be payable, whether in terms of that testamentary instrument or otherwise,
he shall be deemed for the purposes of subsection (1) to have done so for or in expectation of
a fee, gain or reward.
(3) No document referred to in subsection (1) shall be invalid only by reason of the fact
that it has been drawn in contravention of this section.
(4) Subsection (1) shall not apply to—
(a) any member of the Public Service drawing or preparing any instrument or document
in the course of his duty;
(b) any person employed merely to copy or translate any instrument or document;
(c) any trustee or assignee under the laws relating to insolvency, or any executor, ad-
ministrator or curator, or any liquidator or judicial manager of a company drawing
or preparing any instrument or document in the course of his statutory duties and re-
ceiving therefor such fees as may be allowed by law.
(5) Subsection (1), in so far as they relate to the instrument or documents referred to in
—
(a) paragraph (d) thereof, shall not apply to a person who is a fellow or associate mem-
ber of the Institute of Chartered Secretaries and Administrators in Zimbabwe or a
member of the Institute of Chartered Accountants of Zimbabwe;
(b) paragraph (e) thereof, shall not apply to—
(i) a resolution passed or to be passed by the directors or board of management
of a body corporate or unincorporate;
(ii) an official employed by—
A. a city or municipal council, town council, local board or rural district
council; or
B. the Corporation as defined in section 2 of the Agricultural Finance Act
[Chapter 18:02]; or
[Paragraph substituted by sec 29 of Act No. 14 of 1999]
C. the National Railways of Zimbabwe referred to in section 3 of the Rail-
ways Act [Chapter 13:09];
who draws or prepares a contract, deed or instrument referred to in that para-
graph (e) in the course of his duty;
124
(iii) an auctioneer or estate agent who prepares a contract, deed or instrument re-
ferred to in that paragraph (e) in the ordinary course of his business.
11 Prohibition against practice by or in association with unqualified persons

(1) No person who has ceased to be a registered legal practitioner as a result of the dele-
tion of his name from the Register, or who has been suspended from practice as a legal practi-
tioner, shall, while his name is so deleted or he is so suspended, continue to practise directly
or indirectly as a legal practitioner, notary public or conveyancer, whether by himself or in
partnership or association with any other person, nor shall he, except with the written consent
of the Council of the Society, be employed in any capacity whatsoever connected with the
legal profession.
(2) No registered legal practitioner who has ceased to be a registered notary public or
conveyancer as a result of the deletion of his name from the appropriate section of the Re -
gister, or who has been suspended from practice as a notary public or conveyancer, shall,
while his name is so deleted or he is so suspended, continue to practise, directly or indirectly,
as a notary public or conveyancer, as the case may be, whether by himself or in partnership or
association with any other person.
(3) Except with the written consent of the Council of the Society, which consent may be
given for such period and subject to such conditions as the Council may think fit, no re-
gistered legal practitioner shall employ—
(a) in any capacity whatsoever any person whose name has been deleted from the Re-
gister as a legal practitioner or who has been suspended from practice as a legal
practitioner; or
(b) as a notary public any registered legal practitioner whose name has been deleted
from the Register as a notary public or who has been suspended from practice as a
notary public; or
(e) as a conveyancer any registered legal practitioner whose name has been deleted
from the Register as a conveyancer or who has been suspended from practice as a
conveyancer;
until the name of that person or legal practitioner is restored to the Register or his suspension
is terminated, as the case may be, and he is again entitled in terms of this Act to practise as
legal practitioner, notary public or conveyancer, as the case may be.
(4) No registered legal practitioner shall make over, share or divide his professional
fees with any person other than a registered legal practitioner practising as a legal practitioner,
notary public or conveyancer in Zimbabwe:
Provided that nothing in this subsection shall be construed as preventing a legal practi -
tioner from paying a salary to a person in his employ who is not a registered legal practitioner.
(5) Any person who contravenes any provision of this section shall be guilty of an of-
fence and liable to a fine not exceeding level eight or to imprisonment for a period not ex -
ceeding one year or to both such fine and such imprisonment.
12 Prohibition against practice without practising certificate

No registered legal practitioner shall practise, whether as such or as a notary public or
conveyancer, directly or indirectly, by himself or in partnership or association with any other
person, except in accordance with the terms and conditions of a valid practising certificate is -
sued to him:
Provided that this section shall not apply to—
(a) a person who is in the full-time employment of the State, in relation to things done
in the course of his employment; or
125
(b) a person who holds a residential exemption certificate, in relation to the matter for
which the residential exemption certificate was granted; or
(c) a person who is in the full-time employment of the Zimbabwe Revenue Authority,
established by section 3 of the Revenue Authority Act [Chapter 23:11] (No. 17 of
1999), and who performs services for the Zimbabwe Revenue Authority as a legal
practitioner, in relation to things done in the course of his employment.
[Paragraph inserted by sec 32 of Act 6 of 2005]
12A Pre-practice examinations and training

(1) Subject to subsection (2), no registered legal practitioner, notary public or convey-
ancer shall practise as such directly or indirectly, by himself or in partnership with any other
person, unless he has passed examinations and undergone practical training prescribed by the
Council for Legal Education in rules made under section forty-nine.
(2) No rules referred to in subsection (1), and no amendment of such rules, shall affect
the right to practise of a registered legal practitioner, notary public or conveyancer who was
entitled to practise as such before the date of commencement of the rules or amendment, as
the case may be.
[Section inserted by sec 2 of Act No. 11 of 1996, as modified by SI 135/96]
PART IV
TRUST ACCOUNTS
13 Opening of trust accounts

(1) Every registered legal practitioner who holds or receives any moneys for or on be-
half of another—
(a) in his capacity as a legal practitioner, notary public or conveyancer; or
[Paragraph as amended by sec 3 of Act No.11 of 1996, as modified by SI 135/96]
(b) in his capacity as an executor, administrator or trustee;
shall open and keep a current account at a bank as a separate trust account in which he shall
deposit all such moneys:
Provided that—
(i) where the administration or control of any such moneys is shared with any
other person who is not his partner or employee, the legal practitioner may
agree with that other person that the moneys administered or controlled by
them shall be otherwise dealt with;
(ii) this subsection shall not apply to a person who is in the full-time employment
of the State, in relation to things done in the course of his employment.
(2) A registered legal practitioner may, in addition to the trust account referred to in
subsection (1), open and keep a trust account bearing interest at a bank or building society or
with an institution approved by the Council of the Society for the purposes of this subsection
in which he may, unless otherwise instructed by the person on whose account or for whom the
moneys are held or received, as the case may be, deposit, subject to subsection (4) and to such
limitations and conditions as may be prescribed by regulation, any such moneys as are not im -
mediately required for any purpose.
(3) If, with the authority of the person for or on account of whom he holds or has re-
ceived those moneys, a registered legal practitioner holds or receives any moneys in a separ-
ate account from those mentioned in subsections (1) and (2), such account shall—
(a) be regarded as a trust account for the purposes of this Part; and
(b) be in the same name as the trust account opened in terms of subsection (1) and shall
indicate the name of the person for or on account of whom the money is held.
126
(4) In the case of an account opened in terms of subsection (2) or (3)—
(a) deposits shall only be made from a trust account opened in terms of subsection (1);
(b) withdrawals shall only be made in favour of a trust account opened in terms of sub-
section (1).
(5) Where a trust account is opened in terms of subsection (1) or (2)—
(a) that account shall indicate that it is an account opened in terms of subsection (1) or
(2), as the case may be;
(b) any interest on the moneys deposited in that account shall be paid by the registered
legal practitioner concerned to the Compensation Fund at such times and in such
manner as may be prescribed by by-laws, less such portion thereof as the Council of
the Society may from time to time direct, which may be retained by the legal practi -
tioner concerned towards the costs of the operating and auditing of his trust ac-
counts.
14 Books of account
(1) A registered legal practitioner shall keep proper books of account containing partic-
ulars and information of—
(a) moneys received, held or paid by him for or on account of any other person; and
(b) moneys deposited by him in his trust accounts; and
(c) interest paid on moneys deposited in a trust account opened in terms of subsection
(1) or (2) of section thirteen.
(2) The Council of the Society may appoint an auditor, registered as a public auditor, in
terms of the Public Accountants and Auditors Act [Chapter 27:12] to inspect the books of ac-
count of a legal practitioner in order to ascertain that the provisions of section thirteen and of
any relevant regulations and by-laws are being observed.
(3) A person appointed in terms of subsection (2) shall report to the Council of the So-
ciety in such general terms as not to disclose confidential information entrusted to the legal
practitioner whose books he has inspected.
(4) If it is found upon an inspection referred to in subsection (2) that a legal practitioner
has not complied with the provisions of section thirteen or of any relevant regulations or by-
laws, the Council of the Society shall be entitled to recover the cost of the inspection from
that legal practitioner.
15 Trust account moneys excluded from insolvency or attachment

An amount standing to the credit of a trust account opened in terms of section thirteen by
a registered legal practitioner shall—
(a) not be regarded as forming part of the assets of the legal practitioner on the death or
insolvency of or assignment of his estate by that legal practitioner; and
(b) not be liable to attachment at the instance of a creditor of that legal practitioner:
Provided that any excess remaining after payment of—
(a) the claims of all persons whose moneys have or should have been deposited in a
trust account of his; and
(b) any claim by the Compensation Fund in respect of interest due to it in terms of para -
graph (b) of subsection (5) of section thirteen;
shall form part of the assets of that legal practitioner and shall be liable to attachment at the
instance of a creditor of that legal practitioner.
16 Control of operation of trust account

(1) …
127
[Subsection repealed by sec 3 of Act No. 10 of 2000]
(2) In the event of—
(a) the death of a registered legal practitioner; or
(b) the insolvency of or the assignment of his estate by a registered legal practitioner;
or
(c) …
[Paragraph repealed by sec 3 of Act No. 10 of 2000]
(d) a registered legal practitioner being declared by a court of competent jurisdiction to
be incapable of managing his own affairs; or
(e) a registered legal practitioner abandoning his practice;
the Master of the High Court may, upon application made by the Council or by a person hav-
ing an interest in a trust account of that legal practitioner, on good cause shown, appoint a
curator bonis to control and administer that trust account with such of the rights, duties and
powers prescribed by regulation as the Master may deem fit.
(2a) A curator bonis appointed in terms of subsection (2) shall, in the discharge of his
functions—
(a) in urgent matters, notwithstanding any enactment to the contrary but subject this
Act, deal with the trust account for the benefit of any client ;
(b) have due regard to the rights and interests of the clients of that practice and the in-
terests of the legal practitioner concerned.
[Subsection inserted by sec 3 of Act No. 10 of 2000]
(3) A person aggrieved by a decision of the Master in terms of subsection (2) may,
within thirty days after the decision becomes known to him, appeal against that decision to a
judge of the High Court who may refer the matter to the court for argument.
(4) On any appeal in terms of subsection (3) the judge or court, as the case may be, may
—
(a) confirm or vary the decision of the Master; or
(b) give such other decision as in his or its opinion the Master ought to have given.
(5) Nothing in this section contained shall be construed as preventing a registered legal
practitioner who was practising in partnership with a legal practitioner referred to in subsec -
tion (2) from continuing to operate on a trust account of the partnership.
17 Orders as to costs
The High Court shall have power to order that—
(a) any costs incurred by the Council of the Society in respect of an application or ap -
peal made in terms of section sixteen; or
(b) the cost of an inspection made in terms of subsection (2) of section fourteen which
is due by the legal practitioner concerned to the Council of the Society in terms of
subsection (4) of that section;
shall be a preferent charge upon the moneys standing to the credit of the trust account con -
cerned, ranking next after the remuneration of the curator bonis and the expenses of adminis-
tering that trust account.
18 Saving of liability of bank, etc., in relation to trust account

A bank, building society or other institution at which a registered legal practitioner keeps
a trust account shall not, by reason only of the name or style by which the account is distin -
guished, be deemed to have knowledge that the registered legal practitioner is not entitled ab -
solutely to all moneys paid or credited to that account:
128
Provided that nothing in this section contained shall relieve the bank, building society or
other institution from any liability or obligation under which it would be apart from this Act.
19 Limitation of set-off, etc., against trust account

Notwithstanding anything in section eighteen contained, a bank, building society or other
institution at which a registered legal practitioner keeps a trust account shall not, in respect of
any liability of the registered legal practitioner to that bank, building society or other institu -
tion which is not a liability arising out of or in connection with that account, have or obtain
any recourse or right by way of set-off, counterclaim, charge or otherwise against moneys
standing to the credit of that account.
20 Saving of set-off, etc., against trust account

Nothing in this Part contained shall be construed so as to take away or affect a just claim,
lien, counterclaim, right of set-off or charge of any kind which a registered legal practitioner
may at common law or in terms of an enactment have against or upon moneys held or re-
ceived by him on account of another person.
21 Council of the Society may require certified balance of trust account

A bank, building society or other institution at which a registered legal practitioner keeps
a trust account shall, whenever so required by the Council of the Society, furnish to the Coun-
cil of the Society a signed certificate of balance certifying the amount, if any, standing to the
credit or debit of that trust account in that bank, building society or other institution as at such
date or dates as may be specified by the Council of the Society.
22 Offences in relation to trust accounts

A registered legal practitioner who contravenes any provision of this Part shall be guilty
of an offence and liable to a fine not exceeding level eight or to imprisonment for a period not
exceeding one year or to both such fine and such imprisonment.
[Section as amended by section 4 of Act No. 22 of 2001]
PART IVA
CONTINGENCY FEE ARRANGEMENTS
22A Interpretation in Part IVA

In this Part—
“contingency fee arrangement” means an agreement entered into between a registered
legal practitioner and his client in terms of which no fee, other than court fees or dis -
bursements are payable by the client for the legal practitioner’s services in connection
with any legal proceedings unless the proceedings result in a decision or settlement in
the client’s favour;
“normal fee”, in relation to a legal practitioner, means the fee, excluding disbursements,
that he would have charged his client had there been no contingency fee arrangement.
22B Legal practitioners may enter into contingency fee arrangements

Subject to this Part and to regulations, a registered legal practitioner may enter into a con-
tingency fee arrangement with a client regarding the services he provides the client in connec-
tion with such legal proceedings as may be prescribed in regulations.
22C Form of contingency fee arrangement

(1) A contingency fee arrangement shall be in writing and shall be signed by the client
and the legal practitioner concerned.
(2) A contingency fee arrangement shall specify such particulars as may be prescribed
in regulations.
129
22D Non-disclosure of contingency fee arrangement
The fact that a contingency fee arrangement has been concluded shall not be revealed to
the court that hears the legal proceedings concerned.
22EMaximum fees payable under contingency fee arrangement

No fees payable in terms of a contingency fee arrangement shall exceed—
(a) the normal fee of the legal practitioner concerned, plus such percentage of that fee
as may be prescribed in regulations; or
(b) such percentage of the total amount awarded to the client in respect of the proceed-
ings concerned as may be prescribed in regulations;
whichever is the lesser amount.
22FReview of contingency fee arrangement or fee payable

(1) A client may refer a contingency fee arrangement or the fee claimed thereunder for
review to the Society.
(2) On review the Society may set aside or modify, in whole or in part, any provision of
the contingency fee arrangement or any fee claimed thereunder which, in its opinion, is un-
conscionable or unreasonable or does not comply with the provision of this Act.
[Part inserted by sec 4 of Act No. 10 of 2000]
PART V
DISCIPLINE
23 Unprofessional, dishonourable or unworthy conduct

(1) Unprofessional, dishonourable or unworthy conduct on the part of a registered legal
practitioner, whether in the course of his practice as such or as a notary public or conveyancer
shall include the commission of any of the following acts—
(a) touting;
(b) advertising;
(c) contravening or failing to comply with any provision of this Act or any regulations,
rules or by-laws made thereunder;
(d) withholding the payment of trust money without lawful cause;
(e) subject to Part IVA, champerty;
(f) in any way assisting, allowing or enabling an unregistered person to charge, recover
or receive any fee or derive any remuneration in respect of or in connection with the
preparation or execution of any document or the performance of any professional
work which only a registered legal practitioner, notary public or conveyancer is
qualified by law to prepare, execute or perform, or in any way conniving at any ar-
rangement, agreement or understanding whatsoever whereby any such fee or remu-
neration shall be charged, recovered or received by any such unregistered person;
(g) opening or maintaining any office or branch which is not under the continuous per-
sonal supervision of a registered legal practitioner;
(h) keeping the accounts of his practice as a legal practitioner in the books of accounts
utilised in connection with any other business in which he may be interested jointly
with an unregistered person;
(i) remunerating an employee who is an unregistered person by way of a share in the
profits of his practice as a legal practitioner, notary public or conveyancer;
130
(j) in the case of a legal practitioner, notary public or conveyancer who also carries on
the business of an auctioneer, referring to or mentioning any of his professional
qualifications as legal practitioner on his sale advertisements;
(k) tendering or offering in response to advertisement, circulars or similar invitations,
either directly or indirectly, for the performance of any work or business proper to
the calling of a legal practitioner, notary public or conveyancer or commonly associ-
ated therewith;
(l) assisting any unregistered person to recover charges for services, rendered by in-
cluding such charges in any bill of costs or memorandum of charges rendered by
him as a legal practitioner, notary public or conveyancer without disclosing the facts
in such bill or memorandum;
(m) allowing his name with any of his qualifications as legal practitioner, notary public
or conveyancer to appear by way of advertisement or notification or by way of in-
formation upon any business letterheads, accounts or other documents whatsoever
in conjunction with the name of an unregistered person so as to convey, or be likely
to convey, the impression that he is associated in the legal profession with that unre-
gistered person;
(n) entering into or continuing to be a party to any contract or arrangement with an un -
registered person, the effect of which is to place the legal practitioner under such
control on the part of the unregistered person as may interfere with his professional
independence;
(o) entering into or continuing to be a party to any contract or partnership with or of
employment by an unregistered person, the direct or indirect result of which is to
enable the unregistered person to enjoy or participate in fees reserved solely to a
legal practitioner, notary public or conveyancer or to secure for the registered legal
practitioner the benefit of professional business solicited by the unregistered person;
(p) levying any charges or accepting any fee which is less than the minimum charge or
fee prescribed in by-laws in a tariff of minimum charges.
(2) Subsection (1) shall not in any way—
(a) preclude the Society from prescribing in by-laws further acts which shall constitute
unprofessional, dishonourable or unworthy conduct on the part of a registered legal
practitioner, notary public or conveyancer; or
(b) limit the discretion of the Council of the Society, the Disciplinary Tribunal or a
court in determining whether or not any act or omission, which is not specified in
subsection (1) or in by-laws, constitutes unprofessional, dishonourable or unworthy
conduct on the part of a registered legal practitioner, notary public or conveyancer.
24 Disciplinary Tribunal
(1) For the purpose of exercising disciplinary control and other powers conferred by
this Act, there is hereby established a Disciplinary Tribunal.
(2) The Disciplinary Tribunal shall consist of—
(a) a chairman and a deputy chairman who shall be judges of the High Court or the Su-
preme Court or are retired judges of the High or Supreme Court, and shall be ap-
pointed by the Chief Justice;
(b) two other members selected, from time to time as the occasion arises, by the chair -
man of the Disciplinary Tribunal from a panel of names of ten registered legal prac -
titioners submitted by the Council of the Society.
131
(3) If the Council of the Society for any reason fails or refuses to submit a panel of
names as required by paragraph (b) of subsection (2), the chairman of the Disciplinary
Tribunal shall appoint two registered legal practitioners whom he considers fit.
(4) If at any time a member of the Disciplinary Tribunal is unable for any reason to act
as such, he shall be replaced in accordance with the provisions of paragraph (a) or (b) of sub-
section (2) or subsection (3), as the case may be:
Provided that before the replacement of any member in terms of this subsection, any de-
cision made or action taken by the chairman or deputy chairman and one other member shall
be valid.
[Proviso inserted by sec 6 of Act No. 10 of 2000]
(5) The procedure to be followed by the Disciplinary Tribunal shall be as prescribed in
regulations.
25 Evidence of unprofessional, dishonourable or unworthy conduct from

courts
Subject to the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter
7:04], if after the termination of any proceedings before a court—
(a) it appears to the court that there is prima facie evidence of unprofessional, dishon-
ourable or unworthy conduct on the part of a registered legal practitioner, the court
shall direct that a copy of the record of the proceedings, or a copy of such part of the
record as is material to the issue, be transmitted, free of charge, to the Council of the
Society;
(b) the Council of the Society requests that a copy of the record of the proceedings or a
copy of any part of the record be supplied to it on the ground that it is of direct in -
terest to the Council of the Society in the exercise of its functions in terms of this
Act, the registrar or clerk of the court shall comply with such request and shall
transmit, free of charge, such copy of the record or such part thereof to the Council
of the Society.
25A. Prohibition of operation of trust accounts and business accounts

Upon application made by the Council of the Society and upon good cause shown, the
Disciplinary Tribunal may—
(a) prohibit a registered legal practitioner from operating in any way any trust account
or business account of his; and
(b) appoint a curator bonis to control and administer such trust accounts or business ac-
counts with such rights, duties and powers in relation thereto as the Disciplinary
Tribunal may consider fit, and subsection (2a) of section sixteen shall apply, mutatis
mutandis.
[Section inserted by sec 7 of Act No. 10 of 2000]
26 Council of the Society to refer cases to Disciplinary Tribunal

(1) Whenever there is brought to the notice of the Council of the Society an allegation
which might be the subject of an inquiry by the Disciplinary Tribunal, the Council of the So -
ciety shall have the power to call for such information and to cause such investigation to be
made as it thinks necessary.
(2) After investigation in terms of subsection (1) and allowing the person concerned to
make written representations, the Council of the Society shall refer the matter to the Discip-
linary Tribunal for inquiry and may appoint a registered legal practitioner to present a charge
on the evidence relating thereto at the inquiry:
Provided that—
(i) if the Council of the Society considers that—
132
(a) the conduct complained of would not, even if substantiated, constitute unpro-
fessional, dishonourable or unworthy conduct; or
(b) for any other reason the allegation should not be the subject of inquiry by the
Disciplinary Tribunal;
the Council of the Society shall take such other action as it considers appropriate
and may, after first allowing the person concerned to make written representations,
admonish that person and order him to pay a penalty not exceeding two thousand
dollars which shall be payable to the Society;
(ii) if the allegation forms or is likely to form the subject of criminal proceedings in a
court of law, the Council of the Society may postpone referring the matter to the
Disciplinary Tribunal until such criminal proceedings have been terminated.
[Subsection as amended by sec 8 of Act No. 10 of 2000]
26A Suspension from practice

(1) If it appears to the Council of the Society that there is prima facie evidence that a re-
gistered legal practitioner—
(a) is failing to attend reasonably to the affairs of his practice or has abandoned his
practice; or
(b) is contravening any provision of this Act or any rules or by-laws made thereunder;
or
(c) may be guilty of unprofessional, dishonourable or unworthy conduct;
and the legal practitioner concerned has failed to provide a satisfactory explanation in the pre -
scribed manner to the Council of the Society of the conduct complained of upon written re-
quest being made to him or, despite diligent search, he cannot be found at his business or res-
idential address, the Council of the Society may, if it considers it necessary that the legal prac-
titioner concerned be suspended from practice pending an investigation and inquiry in terms
of section twenty-six, the Council of the Society may apply to the Disciplinary Tribunal for
the suspension of the registered legal practitioner for such period, not exceeding six weeks, as
may be necessary to enable the Council of the Society to cause an investigation to be made
for the purposes of an inquiry in terms of this Part.
(2) After considering an application referred to in subsection (1), the Disciplinary
Tribunal may—
(a) grant the application; or
(b) dismiss the application.
(3) In granting an application in terms of paragraph (a) of subsection (2), the Tribunal
may—
(a) order that the registered legal practitioner concerned shall, subject to subsection (1),
be suspended from practice from the date of the order;
(b) during the period of suspension, prohibit the registered legal practitioner from oper-
ating in any way any trust account or business account or from opening any trust or
business account;
(c) appoint another legal practitioner, whether or not in partnership with the legal prac-
titioner suspended from practice, as curator bonis of any trust or business account of
the practice with the power to act in urgent matters on behalf of the client and with
such rights, duties and other powers in relation thereto as the Disciplinary Tribunal
may determine;
(d) subject to subsection (1), specify the date upon which the Disciplinary Tribunal will
hold an inquiry in terms of this Part.
(4) Where an order has been granted in terms of paragraph (a) of subsection (2)—
133
(a) the registered legal practitioner concerned, the Council of the Society or the curator
bonis may apply to the Disciplinary Tribunal for the fixing of the date of the in-
quiry;
(b) the Council of the Society may apply to the Disciplinary Tribunal for the extension
of the period referred to in subsection (1) whereupon the Disciplinary Tribunal may
alter the date referred to in paragraph (d) of subsection (3);
(c) the Disciplinary Tribunal may, on application being made to it, lift the suspension or
vary any order made in terms of subsection (3).
[Section inserted by sec 9 of Act No. 10 of 2000]
27 Taking of evidence by Disciplinary Tribunal

(1) For the purposes of an inquiry in terms of this Part, the Disciplinary Tribunal may
take evidence and may—
(a) summon any person as witness and, where it thinks fit, require him to produce any
book, record, document or thing; and
(b) through the chairman administer an oath to any person; and
(c) examine any book, record, document or thing which has been produced before it.
(2) A person who gives evidence as a witness before the Disciplinary Tribunal shall be
entitled to all the privileges to which a witness is entitled in civil proceedings in the High
Court.
(3) Any person who—
(a) has been summoned to attend before the Disciplinary Tribunal and—
(i) refuses or fails without sufficient cause to attend and give evidence relevant
to the inquiry at the time and place stated in the summons; or
(ii) refuses to be sworn when the chairman wishes to administer an oath to him;
or
(iii) refuses or fails without sufficient cause to produce any book, record, docu-
ment or thing which he has been required in the summons to produce;
or
(b) attends as a witness before the Disciplinary Tribunal and refuses to answer or to an-
swer fully and satisfactorily to the best of his knowledge and belief any question
lawfully put to him;
shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment
for a period not exceeding six months or to both such fine and such imprisonment.
(4) Any person who at an inquiry held by the Disciplinary Tribunal gives false evidence
on oath, knowing such evidence to be false or not knowing or believing it to be true, shall be
guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a
period not exceeding two years or to both such fine and such imprisonment.
28 Powers of Disciplinary Tribunal

(1) If after due inquiry the Disciplinary Tribunal decides that—
(a) a registered legal practitioner has, whether before or after his registration, been
guilty of unprofessional, dishonourable or unworthy conduct or is unfit to practise
as a legal practitioner, notary public or conveyancer; or
134
(b) it would be contrary to the public interest to allow a registered legal practitioner to
continue to practise as a legal practitioner, notary public or conveyancer because of
mental or physical disability or addiction to intoxicating liquor or drugs; or
(c) a registered practitioner is failing or has failed to comply with the requirement of
any regulation made in terms of section eighty-seven;
the Disciplinary Tribunal shall do one or more of the following—
(i) direct that his name be deleted from the Register, whether as a legal practitioner,
notary public or conveyancer;
(ii) order his suspension for a specified period from practising as a legal practitioner,
notary public or conveyancer;
(iii) impose such conditions as it deems fit subject to which he shall be entitled to prac-
tise as a legal practitioner, notary public or conveyancer;
(iv) order him to pay a penalty not exceeding an amount equivalent to a fine of level six,
which shall be payable to the Compensation Fund or the Society, as the Disciplinary
Tribunal may determine;
[Paragraph as amended by section 4 of Act No. 22 of 2001]
(v) censure him;
(vi) caution him and postpone for a period not exceeding five years any further action
against him on one or more conditions as to his future conduct during that period.
(1a) Where the Disciplinary Tribunal makes a direction or order in terms of subpara-
graph (i) or (ii) of subsection (1), as the case may be, the Disciplinary Tribunal may also
make an order in terms of section twenty-five A and may, having regard to the circumstances
of the case, authorise the curator bonis to cause the winding up of the affairs of the practice.
(2) If at any time the Disciplinary Tribunal decides that a person who is undergoing or
has undergone any practical training prescribed as a qualification for registration or who is
practising or has practised in terms of section eighty—
(a) has been guilty of conduct which, had he been registered, would have amounted to
unprofessional, dishonourable or unworthy conduct; or
(b) is unfit to be registered;
the Disciplinary Tribunal shall—
(i) prohibit, either indefinitely or for a period specified by the Disciplinary Tribunal,
the registration of such person; or
(ii) do any one or more of the things specified in paragraphs (iii), (iv), (v) and (vi) of
subsection (1).
(3) Where a registered legal practitioner has been convicted within or outside Zimb-
abwe of an offence by a court of law and the Council of the Society or the Disciplinary
Tribunal is of opinion that such offence constitutes unprofessional, dishonourable or un-
worthy conduct on the part of the legal practitioner, whether as a legal practitioner, notary
public or conveyancer, the Council of the Society or the Disciplinary Tribunal, as the case
may be, may, if it thinks fit, on proof before it of such conviction and without hearing further
evidence, deal with the convicted person in accordance with this Act:
Provided that the convicted person shall be afforded an opportunity of tendering, in writ-
ing or in person or by his legal representative, as he may elect, an explanation to the Council
of the Society or the Disciplinary Tribunal, as the case may be, in extenuation of his conduct.
(4) If at any time the Disciplinary Tribunal is satisfied that a registered legal practi -
tioner or other person has not complied with any conditions imposed upon his practice or con-
duct in terms of subsection (1) or (2), the Disciplinary Tribunal, after giving reasonable notice
135
to the registered legal practitioner or other person concerned, may proceed further to do one
or more of the things specified in subsection (1) or (2), as the case may be.
(5) After any inquiry in terms of this Part the Disciplinary Tribunal may order the legal
practitioner or other person concerned to pay the expenses incurred in connection with the in-
quiry, including any expenses incurred by the Society in connection with the inquiry, or any
part of these expenses as it thinks fit.
(6) A person authorized by the Disciplinary Tribunal may, by action in any court of
competent jurisdiction, recover from the person concerned any expenses he has been ordered
to pay in terms of subsection (5).
(7) The Disciplinary Tribunal shall inform the Council of the Society and the Registrar
of any action taken by it in terms of this section.
29 Appeals from decisions of Disciplinary Tribunal

(1) Any person who is aggrieved at the order or findings of, or penalty imposed by, the
Disciplinary Tribunal in terms of section twenty-eight may, within thirty days after the date of
such findings or imposition of such penalty, appeal to the Supreme Court in such manner as
may be prescribed by rules of court made in terms of the Supreme Court Act [Chapter 7:13].
(2) On an appeal in terms of subsection (1), the Supreme Court may—
(a) confirm, vary or set aside any finding, order or penalty of the Disciplinary Tribunal;
or
(b) remit the matter to the Disciplinary Tribunal for further consideration;
and may make such other order as to costs or otherwise as may to it seem just:
Provided that the Supreme Court shall not set aside any findings or penalty by reason of
any informality in the proceedings of the Disciplinary Tribunal which did not embarrass or
prejudice the appellant in answering the charge or in the conduct of his defence.
(3) The noting of an appeal in terms of this section shall not, pending the determination
of the appeal, suspend the decision appealed against unless the Disciplinary Tribunal, on ap -
plication being made to it, directs otherwise, and for such purposes the Disciplinary Tribunal
may give such directions as to the conditions upon which the registered legal practitioner con -
cerned may, pending the determination of the appeal, practise or operate any trust or business
account of the practice.
30 Suspension of practitioner upon insolvency

(1) Whenever the estate of any legal practitioner is sequestrated, assigned or declared
insolvent or bankrupt, whether under the law of Zimbabwe or of any other country, such legal
practitioner shall ipso facto be suspended until such time as the Disciplinary Tribunal may in
accordance with subsections (2), (3) and (4) order the removal of such suspension.
(2) Any legal practitioner who has been suspended under subsection (1) may at any
time, after giving one month’s notice in writing to the Council of the Society, move the Dis-
ciplinary Tribunal for the removal of such suspension.
(3) The Society may be represented by a legal practitioner in support of or in opposition
to any application made under subsection (2).
(4) Upon the hearing of any application under subsection (2), the Disciplinary Tribunal
may make any order which in the circumstances of the case seems fit.
31 Registrar to make appropriate entry in Register and to publish order of

Disciplinary Tribunal
(1) Where, by order of the Disciplinary Tribunal, a legal practitioner is suspended from
practice, whether as a legal practitioner, notary public or conveyancer, or his name is ordered
136
to be deleted from the Register, the Registrar shall make the appropriate entry or alteration in
the Register.
(2) Every order referred to in subsection (1) shall be published by the Registrar in the
Gazette as soon after it has been made as is reasonably practicable.
32 Restoration to Register
(1) A legal practitioner whose name has been deleted from the Register, whether as a
legal practitioner, notary public or conveyancer, may, subject to subsection (2), apply to the
High Court to have his name restored to the Register.
(2) An application referred to in subsection (1) shall be accompanied by a recommenda-
tion in support thereof from the Council of the Society.
(3) An application in terms of subsection (1) shall be made in such manner as may be
prescribed in rules of court.
(4) Any order restoring the name of a legal practitioner to the Register shall, as soon as
practicable after the making of the order, be published by the Registrar in the Gazette.
PART VI
COUNCIL FOR LEGAL EDUCATION
33 Interpretation in Part VI
In this Part—
“committee” means a committee of the Council for Legal Education appointed in terms of
section forty-one;
“member” means a member of the Council for Legal Education;
“professional examination” means an examination set by the Council for Legal Education
in the exercise of its powers under paragraph (c) of subsection (1) of section thirty-
five.
34 Council for Legal Education

There is hereby established a council, to be known as the Council for Legal Education,
which shall be a body corporate capable of suing and being sued in its corporate name and,
subject to this Act, of performing all acts that bodies corporate may by law perform.
35 Functions and powers of Council for Legal Education

(1) The functions of the Council for Legal Education shall be—
(a) to ensure the maintenance of appropriate standards in legal education and training in
Zimbabwe;
(b) to determine the qualifications for registration in terms of this Act;
(c) to determine syllabuses for and to set, either by itself or through examiners, profes-
sional examinations to qualify persons to be registered in terms of this Act;
(d) to consider and grant or refuse applications from persons seeking exemption from
any professional examination or any part thereof.
(2) For the better exercise of its functions, the Council for Legal Education shall have
the following powers—
(a) to consider the content and standard of legal qualifications granted inside and out -
side Zimbabwe and to determine whether, and subject to what conditions, such qual-
ifications should entitle their holders to registration in terms of this Act;
(b) to provide courses of study and training for persons who wish to be registered or
who are registered in terms of this Act or who are engaged in any occupation con -
nected with the practice of law;
137
(c) to advise the Minister and any educational institutions concerned on all matters re -
lating to legal education and training;
(d) to review legislation relating to legal qualifications, education and training and to
advise the Minister on amendments that it considers should be made;
(e) to co-operate with other persons, institutions and authorities concerned with the pro-
vision of legal education or training, whether in Zimbabwe or elsewhere;
(f) to establish, support and maintain law libraries and reading rooms and to print, pub-
lish and circulate books and periodicals on law and legal subjects;
(g) to employ, on such terms and conditions as it may fix, such lecturers and other
members of staff as may be necessary for conducting its affairs, and to suspend or
discharge any such persons;
(h) to pay such remuneration and allowances and grant such leave of absence and, with
the approval of the Minister, to make such gifts, bonuses and the like to its employ-
ees as it thinks fit;
(i) to make provision for the payment of pensions, gratuities and like benefits to its em-
ployees and their dependants on their sickness, death or termination of service;
(j) to acquire movable and immovable property necessary or convenient for the exer-
cise of its functions and to maintain, alter, improve, mortgage or dispose of such
property;
(k) to invest any of its funds which are not immediately required, upon such security as
it may determine;
(l) to fix, levy and recover fees and charges for certificates issued, services rendered
and other things done by it in terms of this Act or any other enactment;
(m) to do anything which it is required or permitted to do in terms of this Act or any
other enactment;
(n) generally, to do all things that are calculated to facilitate, or are incidental or condu -
cive to the performance of, its functions in terms of this Act or any other enactment.
36 Membership of Council for Legal Education

(1) Subject to sections thirty-seven and thirty-nine, the Council for Legal Education
shall consist of the following members—
(a) a chairman appointed by the Minister, who shall be a person who is nominated by
the Chief Justice and who is or has been a judge of the Supreme Court or the High
Court; and
(b) seven other members appointed by the Minister, of whom—
(i) one shall be nominated by the Attorney-General; and
(ii) two shall be appointed from a list of not fewer than four names submitted by
the Faculty Board of the Faculty of Law of the University of Zimbabwe; and
(iii) two shall be appointed from a list of not fewer than four names submitted by
the Council of the Society; and
(iv) the remainder shall be persons employed in the Ministry for which the Minis-
ter is responsible.
(2) If the Faculty Board of the Faculty of Law of the University of Zimbabwe or the
Council of the Society fails to submit a list of names in terms of subparagraph (ii) or (iii) of
paragraph (b) of subsection (1) within a reasonable time after being called upon to do so, the
Minister may appoint any person to fill the vacancy.
37 Disqualifications for membership of Council for Legal Education
138
A person shall not be appointed as a member, and no person shall be qualified to hold of-
fice as a member, if—
(a) he has been adjudged or otherwise declared insolvent or bankrupt in terms of a law
in force in any country, and has not been rehabilitated or discharged; or
(b) he has made an assignment to or arrangement or composition with his creditors in
terms of a law in force in any country, and the assignment, arrangement or composi-
tion has not been rescinded or set aside: or
(c) the Disciplinary Tribunal, in terms of section twenty-eight, has—
(i) directed the deletion of his name from the Register; or
(ii) ordered his suspension from practice; or
(iii) prohibited his registration;
and his name has not been restored to the Register or the period of his suspension or
prohibition has not elapsed, as the case may be; or
(d) within the period of five years immediately preceding the date of his proposed ap -
pointment, he has been sentenced in any country to a term of imprisonment imposed
without the option of a fine, whether or not any portion of the sentence has been
suspended, and he has not received a free pardon.
38 Terms and conditions of office of members of Council for Legal Education

(1) Subject to subsection (2) and to section thirty-nine, a member shall hold office for
such period, not exceeding three years, as the Chief Justice or the Minister, as the case may
be, may fix on his appointment.
(2) On the expiry of the period for which a member has been appointed, he shall con-
tinue to hold office until he has been reappointed or his successor has been appointed:
Provided that a member shall not hold office in terms of this subsection for a period ex -
ceeding six months.
(3) A member who resigns or retires shall be eligible for reappointment.
(4) Members shall hold office on such terms and conditions as the Minister, with the
approval of the Minister responsible for finance, may fix.
(5) A member of the Council for Legal Education shall be paid—
(a) such remuneration, if any, as the Minister, with the approval of the Minister re-
sponsible for finance, may fix for members generally;
(b) such allowances, if any, as the Minister, with the approval of the Minister respons-
ible for finance, may fix to meet any reasonable expenses incurred by the member in
connection with the business of the Council.
39 Vacation of office by members of Council for Legal Education

(1) A member shall vacate his office and his office shall become vacant—
(a) after giving the Minister such period of notice of intention to resign as may be fixed
in his terms and conditions of service or, if no such period has been fixed, after the
expiry of one month after the date he gives such notice, or after the expiry of such
other period of notice as he and the Minister may agree; or
(b) on the date he begins to serve a sentence of imprisonment, whether or not any por -
tion has been suspended, imposed without the option of a fine in any country; or
(c) if he becomes disqualified in terms of paragraph (a), (b) or (c) of subsection (1) of
section thirty-seven to hold office as a member; or
(d) if he is required in terms of subsection (2) to vacate his office.
139
(2) The Minister, after consulting the Council for Legal Education, may require a mem-
ber to vacate his office if the member—
(a) has been guilty of conduct which renders him unsuitable to continue to hold office
as a member; or
(b) has failed to comply with any term or condition of his office fixed in terms of sec-
tion thirty-eight; or
(c) is mentally or physically incapable of efficiently exercising his functions as a mem-
ber.
(3) The Minister, on the recommendation of the Council for Legal Education, may re -
quire a member to vacate his office if the Minister is satisfied that the member has been ab -
sent without the permission of the chairman of the Council from three consecutive meetings
of the Council, of which he has had notice, and that there was no just cause for the member’s
absence.
(4) On the death of, or the vacation of office by, a member, the Minister shall, subject to
section thirty-six, appoint a person to fill the vacancy.
40 Meetings and procedure of Council for Legal Education

(1) The Council for Legal Education shall hold its first meeting on such date and at
such place as the Minister may fix and thereafter, subject to this Part, the Council shall meet
for the dispatch of business and adjourn, close and otherwise regulate its meetings and pro -
cedure as it thinks fit:
Provided that the Council shall meet at least three times a year.
(2) The chairman of the Council for Legal Education may himself at any time and shall,
at the request of not fewer than four members, convene a special meeting of the Council,
which meeting shall be convened for a date not sooner than seven days and not later than
thirty days after receipt of such request.
(3) Subject to subsection (4), the chairman of the Council for Legal Education shall
preside at meetings of the Council.
(4) If the chairman of the Council for Legal Education is absent from a meeting of the
Council, the members present may elect one of their number to preside at the meeting as
chairman.
(5) A majority of members shall form a quorum at any meeting of the Council for Legal
Education.
(6) All acts, matters or things authorized or required to be done by the Council for
Legal Education may be decided by a majority vote at a meeting of the Council at which a
quorum is present.
(7) At all meetings of the Council for Legal Education each member present shall have
one vote on each question before the Council:
Provided that, in the event of an equality of votes, the chairman shall have a casting vote
in addition to a deliberative vote.
(8) Any proposal circulated among all members and agreed to by a majority of them
shall be of the same effect as a resolution passed at a duly constituted meeting of the Council
for Legal Education:
Provided that, if a member requires that any such proposal be placed before the Council
this subsection shall not apply to the proposal.
41 Committees of Council for Legal Education

(1) For the better exercise of its functions, the Council for Legal Education may estab -
lish committees to which it may delegate, either absolutely or subject to conditions, such of its
functions as it thinks fit:
140
Provided that—
(i) such a delegation shall not prevent the Council from exercising the functions con-
cerned;
(ii) the Council may amend or withdraw any decision of a committee in the exercise of
its delegated functions.
(2) The Council for Legal Education may appoint persons who are not members of the
Council to be members of any committee and, with the approval of the Minister, may fix the
terms and conditions of office of such persons.
(3) The procedure of any committee shall be as fixed by the Council for Legal Educa-
tion.
(4) Subject to this section, subsection (5) of section thirty-eight and subsections (4) to
(8) of section forty shall apply, mutatis mutandis, to committees and members thereof as they
apply to the Council for Legal Education and its members.
42 Minutes of proceedings of Council for Legal Education and committees

(1) The Council for Legal Education shall cause minutes of all proceedings of and de-
cisions taken at all meetings of the Council and of committees to be entered in books kept for
the purpose.
(2) Any minutes referred to in subsection (1) which purport to be signed by the chair -
man of the meeting to which the minutes relate or by the chairman of the next following
meeting of the Council for Legal Education or of the committee concerned, as the case may
be, shall be accepted for all purposes as prima facie evidence of the proceedings of and de-
cisions taken at the meeting concerned.
43 Secretary and other staff of Council for Legal Education

The Minister, with the approval of the Public Service Commission, may assign as secret-
ary and members of staff of the Council for Legal Education such persons employed in his
Ministry as will enable the Council properly to carry out its functions in terms of this Act.
44 Funds of Council for Legal Education

The funds of the Council for Legal Education shall consist of—
(a) such moneys as may be payable to the Council from moneys appropriated for the
purpose by Parliament; and
(b) any moneys to which the Council may be entitled from time to time, whether by
way of fees, gifts or otherwise.
45 Accounts of Council for Legal Education

(1) The Council for Legal Education shall keep proper books of account and other re -
cords relating thereto in respect of all its activities, undertakings and property, including such
particular accounts and records as the Minister may direct.
(2) The Council for Legal Education shall prepare and submit to the Minister a state-
ment of accounts in respect of each financial year or such other period as the Minister may
direct.
(3) The Council for Legal Education shall—
(a) appoint as auditors one or more persons approved by the Minister who are re-
gistered as public auditors in terms of the Public Accountants and Auditors Act
[Chapter 27:12]; and
(b) ensure that the accounts kept in terms of subsection (1) are examined once in each
financial year by the auditors, in accordance with such directions as the Minister
may give the Council from time to time.
141
46 Validity of decisions and acts of Council for Legal Education and
committees
No decision or act of the Council for Legal Education or any committee shall be invalid
solely because, at the time the decision was taken or the act was done or authorized—
(a) there were one or more vacancies in the membership of the Council or committee,
as the case may be; or
(b) a disqualified person acted as a member of the Council or the committee, as the case
may be;
if the duly appointed members who were present when the decision was taken or the act was
done or authorized by the Council or committee, as the case may be, constituted a quorum.
47 Execution of instruments by Council for Legal Education

Any agreement, certificate, notification or instrument approved by the Council for Legal
Education may be entered into or executed by any person generally or specially authorized by
the Council for that purpose.
48 Exemption from liability of Council for Legal Education and its members,
employees and agents
Neither the Council for Legal Education nor any member, employee or agent thereof
shall be liable for any loss, injury or damage sustained by a person as a result of the bona fide
exercise or performance by or on behalf of the Council of a function conferred or imposed
upon the Council by or in terms of this Act:
Provided that this section shall not be construed so as to prevent a person from recovering
compensation for any such loss, injury or damage caused by negligence or breach of contract.
49 Rules made by Council for Legal Education

(1) Subject to subsection (3), the Council for Legal Education may make rules prescrib-
ing any matters which in terms of this Act may be prescribed in such rules or which, in the
opinion of the Council, are necessary or convenient to be so prescribed for the better carrying
out of its functions.
(2) Rules made in terms of subsection (1) may provide for—
(a) the designation of legal qualifications which, by themselves or in conjunction with
any other qualifications, experience or training, qualify the holders to be registered
in terms of this Act;
(b) the syllabuses for and the conduct of professional examinations;
(c) applications for and the grant or refusal of exemptions from any professional exam-
ination or part thereof;
(d) lectures and courses of instruction for persons who intend to sit professional exam-
inations and for other persons;
(e) meetings of the Council for Legal Education and the procedure to be followed
thereat;
(f) the duties and responsibilities of members of staff of the Council for Legal Educa-
tion;
(g) fees payable for anything done by the Council for Legal Education in terms of this
Act or any other enactment.
(3) Rules made in terms of subsection (1) shall not have effect until they have been ap-
proved by the Minister and published in a statutory instrument.
49A Appeals against decisions of Council for Legal Education
142
(1) Any person who is aggrieved by any decision of the Council for Legal Education in
terms of this Part may, within thirty days after being notified of the decision, appeal against it
to the High Court in such manner as may be prescribed in rules of court.
(2) On an appeal in terms of subsection (1), the High Court may—
(a) confirm, vary or set aside the decision appealed against; or
(b) remit the matter to the Council for Legal Education for further consideration;
and may make such other order as to costs or otherwise as the Court considers just.
[Section inserted by sec 4 of Act No. 11 of 1996, as modified by SI 135/96]
PART VII
50 Interpretation in Part VII

In this Part—
“member” means a member of the Society but does not include an honorary member;
“councillor” means a member of the Council of the Society.
51 Law Society of Zimbabwe

(1) The Law Society of Zimbabwe which was incorporated in terms of the Law Society
of Zimbabwe (Private) Act [Chapter 223 of 1974] shall, on and after the fixed date, continue
as a corporate body under the same name and shall be capable of suing and being sued and,
subject to this Act, of performing such acts as bodies corporate may by law perform, includ -
ing the acquisition, holding and alienating of movable and immovable property and other
rights.
(2) All assets, rights and obligations which belonged or attached to the Law Society of
Zimbabwe immediately before the fixed date shall, on and after that date, continue to belong
and attach to the Society.
52 Membership of Society
(1) Subject to this Act, every registered legal practitioner residing in Zimbabwe shall
have the right to become a member of the Society and every member of the Society shall be
entitled to cease to be a member.
(2) Unless within the period of thirty days following—
(a) the fixed date, in the case of a registered legal practitioner residing in Zimbabwe
who is deemed to be registered in terms of section eighty; or
(b) the date of his registration, in the case of any other registered legal practitioner
residing in Zimbabwe;
any such registered legal practitioner gives notice to the president of the Society that he does
not wish to become a member, such legal practitioner shall be deemed, on the expiry of the
said period, to have become a member of the Society.
(3) Any member whose name has been deleted from the Register shall cease to be a
member of the Society, and any member who has been suspended from practice in terms of
this Act shall become disentitled to the privileges of membership during such suspension.
53 Objects and powers of Society

The objects and powers of the Society shall be—
(a) to cause to be kept—
(i) registers of the names and addresses of registered legal practitioners; and
(ii) any other registers which may be necessary;
143
(b) to represent the views of the legal profession and to maintain its integrity and status;
(c) to define and enforce correct and uniform practice and discipline among legal prac-
titioners;
(d) to promote the amicable settlement or adjustment of disputes concerning profes-
sional matters;
(e) to promote social intercourse between members;
(f) to consider and deal with all matters affecting the professional interests of legal
practitioners;
(g) to encourage and promote the study of law and jurisprudence and to provide means
of securing efficiency and responsibility on the part of those seeking registration;
(h) to establish, support and maintain law libraries and reading rooms and to print, pub-
lish and circulate books and periodicals on law and legal subjects where deemed ne -
cessary or desirable;
(i) to make recommendations in relation to training;
(j) to acquire any rights or privileges which the Society may regard as necessary or
convenient for the legal profession;
(k) to establish and support or aid in the establishment and support of associations,
funds, trusts, pensions or provident schemes to benefit members or former members
or their dependants and to grant pensions and allowances to any member or former
member or his dependants;
(l) to make charitable donations and to make grants in aid of objects which would be-
nefit the legal profession;
(m) to consider and discuss and to confer with other bodies on alterations and reforms in
the practice, procedure and administration of the law and to propose, promote or op-
pose legislation in Parliament;
(n) to purchase, hire or otherwise acquire movable or immovable property and to erect
buildings for the purpose of the Society;
(o) to raise or borrow money in such manner as the Society may think fit;
(p) to sell, lease, mortgage, improve or otherwise deal with all or any of the property of
the Society;
(q) to invest the funds of the Society which are not immediately required upon such se-
curity as may from time to time be determined;
(r) to employ the funds of the Society in obtaining or assisting any person to obtain a
judicial order, ruling or judgment on a doubtful or disputed point of law where the
Council of the Society deems it necessary or desirable in the interests of the public
or the legal profession;
(s) to do all such acts and things as are incidental or conducive to the attainment of the
above-mentioned objects.
54 Constitution of Council of the Society

(1) The Society shall have a council which shall consist of—
(a) nine elected councillors who shall be elected by the Society from its members in the
manner prescribed in by-laws;
(b) two appointed councillors who shall be persons who are appointed by the Minister:
Provided that, with the approval of the Minister, the Council of the Society may co-opt to
the Council not more than two further registered legal practitioners, who need not be mem -
bers of the Society.
144
(2) As soon after the election of the elected councillors as it is practicable to do so, the
Council shall elect from the councillors a president and vice-president who shall hold office,
as such, until the close of the next annual general meeting at which an election of councillors
takes place.
(3) A councillor who—
(a) is elected shall hold office until the close of the third annual general meeting after
the annual general meeting at which his election was declared:
Provided that he shall cease to hold office as a councillor if—
(a) he ceases to be a member of the Society; or
(b) a resolution to that effect is passed at a general meeting of the Society;
(b) is co-opted shall hold office until the close of the first annual general meeting after
his co-option;
(c) is appointed shall hold office during the pleasure of the person appointing him;
and, after the termination of his office, he shall be eligible for re-election, re-appointment or
further co-option, as the case may be:
Provided that, if for any reason the successors to the existing president, vice-president
and elected councillors have not been duly elected, those persons shall continue in their of -
fices until the election of their successors.
55 Management and control of Society by Council of the Society

(1) The management and control of the Society shall be vested in the Council of the So-
ciety which may exercise all such powers and do all such things as may be exercised or done
by the Society save those which are expressly directed or required by this Act or by by-laws
made thereunder to be exercised or done by the Society in general meeting.
(2) The Society, the Council of the Society and any councillor, officer or agent thereof
shall not be liable for any loss, injury or damage sustained by a person as a result of the bona
fide exercise or performance by the Society, the Council of the Society or a councillor, officer
or agent thereof of a power or duty conferred or imposed upon the Society or the Council of
the Society by this Act:
Provided that this section shall not be construed so as to prevent a person from recovering
by action in a competent court compensation for any loss, injury or damage sustained by him
which was caused by negligence or breach of contract.
56 Absence of councillor from Zimbabwe or failure to attend meetings of

Council of the Society
Where without special leave of the Council of the Society any elected councillor is absent
from Zimbabwe for a continuous period of six months or has failed to attend four consecutive
meetings of the Council of the Society, the Council of the Society shall declare his seat to be
vacant.
57 Casual vacancies
Any casual vacancy in the office of president or vice-president or councillor shall be
filled at as early a date as is practicable.
58 Casual vacancy not to invalidate acts of Council of the Society

Subject to by-laws respecting a quorum at Council meetings, a casual vacancy in the
Council shall not invalidate any act or deed of the Council of the Society.
59 Representative of councillor to attend meetings of Council of the Society
145
(1) Any councillor shall be entitled to nominate in writing any member of the Society as
his representative at any meeting or meetings of the Council of the Society at which such
councillor cannot conveniently be present.
(2) The duly appointed representative of a councillor shall, when such councillor is ab-
sent, be entitled to attend, speak and vote as a councillor at any meeting for which he is ap -
pointed.
(3) The attendance of any such representative at any meeting of the Council of the Soci-
ety shall be reckoned, for the purposes of section fifty-six, as the attendance of the member
whom he represents.
60 Annual general meetings

(1) Once in each calendar year there shall be held a general meeting of members, to be
called the annual general meeting.
(2) Subject to by-laws, the place, date and hour of the annual general meeting shall be
fixed by resolution of the Council of the Society.
(3) At least twenty-one days prior to the date fixed for the annual general meeting, writ-
ten notice thereof shall be sent to each member of the Society.
(4) The business to be transacted at the annual general meeting shall include—
(a) the election in respect of the ensuing year of the elected councillors or, if the elec-
tion has taken place prior to the meeting, a declaration of the result of such election;
and
(b) the election of an auditor; and
(c) the consideration of any business of which due notice has been given in accordance
with by-laws.
61 Special general meetings

A special general meeting of members shall be held when convoked—
(a) by a majority of councillors; or
(b) by the president; or
(c) by the secretary of the Society in response to a requisition for such meeting signed
by not less than twelve members of the Society.
62 Quorum at general meetings

Subject to section seventy-two, unless otherwise provided by by-laws, the quorum neces-
sary for the transaction of the business of any annual or special general meeting shall be ten
members personally present.
63 Society may make by-laws

(1) By-laws may be adopted by a majority of members present personally or by proxy
at a general meeting of the Society.
(2) By-laws may be made in terms of subsection (1) for any or all of the following pur-
poses—
(a) providing for general meetings of members, the quorum necessary for the transac-
tion of business and the conduct and place of meetings, and providing for voting by
a show of hands and by ballot and by proxy;
(b) subject to section seventy-two, providing for meetings of the Council of the Society,
the quorum necessary for the transaction of its business, the conduct of and voting at
meetings thereof and the method of appointment of members to represent absent
councillors;
146
(c) allocating a defined number of seats on the Council of the Society to particular areas
or towns;
(d) providing for and prescribing the procedure to be adopted in, the election of council-
lors, members of the Board of Trustees and of the president and vice-president and
of an auditor or auditors;
(e) providing for an annual subscription to be paid by members and fixing the amount
thereof and the date when it shall become due;
(f) specifying the powers and duties of the president, vice-president, secretary, treasurer
and other officers of the Society and of the Council of the Society;
(g) prescribing the registers and other records to be kept;
(h) specifying the circumstances in which payments may be made to the secretary and
other officers of the Society and to councillors and the representatives of councillors
for travelling and other expenses and for the performance of special work on behalf
of the Society;
(i) prescribing the procedure to be followed and the requirements to be satisfied by any
member who wishes to obtain the recommendation of the Society for his appoint-
ment as senior counsel;
(j) making provision for, and prescribing the method of, the investigation of complaints
against legal practitioners;
(k) defining acts or omissions which constitute unprofessional, dishonourable or un-
worthy conduct on the part of legal practitioners;
(l) fixing a tariff of charges and commissions or minimum or maximum charges and
commissions for services rendered by legal practitioners in matters not provided for
by the rules of the Supreme Court, High Court or of magistrates courts:
Provided that no by-laws made in terms of this paragraph shall prohibit any re-
gistered legal practitioner from acting in any proper case or matter without making
any charge therefor;
(m) providing for the appointment of a secretary, librarian and other officers and to fix
their remuneration;
(n) providing the place where the records, books and documents of the Society shall be
kept and where the office of the Society shall be situated;
(o) providing for the Council of the Society to decide and act as it may think proper in
matters not provided for by the by-laws and to make rules respecting the use by
members and other persons of the property of the Society;
(p) the appointment of honorary members;
(q) the requirement by legal practitioners to notify the Society or any officer thereof of
particulars of their names and addresses and those of their partners and of any
change in such particulars;
(r) the imposition by the Council of the Society of a penalty, which shall be recoverable
by the Council of the Society and which shall not exceed an amount equivalent to a
fine of level one for each week of default, for failing to notify any particulars re -
quired in terms of by-laws made in terms of paragraph (q);
[Paragraph as amended by section 4 of Act No. 22 of 2001]
(s) providing for the form, issue and withdrawal of practising certificates, including the
contributions payable to the Society by persons applying for the issue or renewal of
practising certificates;
(t) prescribing the matters in respect of which an auditor shall be satisfied before issu-
ing an audit certificate for the purpose of section eighty-one;
147
(u) providing generally for the furtherance of the objects and powers of the Society as
stated in section fifty-three, including suitable allocations of the funds of the Society
for that purpose.
(3) By-laws made in terms of subsection (1) shall not have effect until they have been
approved by the Minister and published in a statutory instrument.
PART VIII
LAW SOCIETY COMPENSATION FUND
64 Law Society Compensation Fund

The Law Society Compensation Fund established in terms of section 3 of the Law Soci-
ety Compensation Fund Act [Chapter 222 of 1974] shall, on and after the fixed date, continue
in existence and shall be vested in and administered by the Board of Trustees in accordance
with this Act.
65 Assets of Compensation Fund

The Compensation Fund shall consist of—
(a) all contributions paid to the Compensation Fund in terms of section seventy-four;
(b) income from the investments of the Compensation Fund; and
(c) all moneys borrowed on behalf of the Compensation Fund in terms of section sixty-
nine;
(d) all moneys received by the Compensation Fund under any insurance effected on be-
half of the Fund in terms of section sixty-nine;
(e) any other moneys which may vest in or accrue to the Compensation Fund, whether
in terms of this Act or otherwise.
66 Expenditure from Compensation Fund

(1) There shall be paid from the Compensation Fund—
(a) any costs, charges and expenses incurred by the Board of Trustees in establishing,
maintaining, administering and applying the Compensation Fund;
(b) any grants made in terms of section seventy;
(c) any costs, charges and expenses incurred by the Council of the Society in any in-
quiry in terms of section seventy;
(d) any reimbursements made in terms of subsection (2); and
(e) any refund of contributions made in terms of subsection (3);
(f) any premiums on insurance effected on behalf of the Compensation Fund;
(g) any sums required for the repayment of any moneys borrowed by the Compensation
Fund and payment of any interest thereon;
(h) such other sums as may be prescribed in rules made in terms of section seventy-
three.
(2) Where the Society has incurred any costs, charges or expenses through the investig-
ation or audit by the Council of the Society of the books of account of a legal practitioner, the
Council of the Society may direct the Board of Trustees to make a payment out of the Com -
pensation Fund for the purpose of reimbursing the Society either wholly or in part, and the
Board of Trustees shall comply with that direction.
(3) The Council of the Society may direct the Board of Trustees to refund to any legal
practitioner or his estate the whole or part of his contributions to the Compensation Fund, and
the Board of Trustees shall comply with any such direction.
148
67 Audit of Compensation Fund
The accounts of the Compensation Fund shall be audited at least once in every year by an
auditor, registered as a public auditor, in terms of the Public Accountants and Auditors Act
[Chapter 27:12] who shall be appointed by the Board of Trustees with the approval of the
Minister.
68 Law Society Compensation Fund Trustees

(1) The Board of Trustees known as the Law Society Compensation Fund Trustees es-
tablished by section 3 of the Law Society Compensation Fund Act [Chapter 222 of 1974]
shall, on and after the fixed date, continue in existence as a body corporate under the same
name, capable of suing and being sued in its corporate name and, subject to the provisions of
this Act, of performing all such acts as a body corporate may by law perform.
(2) The Board of Trustees shall consist of three members who shall be elected annually
by the Society in general meeting from among those members of the Society who are not
members of the Council of the Society.
(3) At the conclusion of his term of office a member of the Board of Trustees shall be
eligible for re-election.
(4) The office of a member of the Board of Trustees shall become vacant if—
(a) he dies; or
(b) he resigns by notice in writing to the president of the Society; or
(c) his estate is sequestrated or assigned in terms of any law relating to insolvency; or
(d) he ceases for any reason to be a registered legal practitioner; or
(e) as a result of his being convicted of any offence the Council of the Society notifies
him in writing that he has ceased to be a member of the Board of Trustees; or
(f) he has, in the opinion of the Council of the Society, become mentally or physically
incapable of efficiently performing his duties and the Council of the Society notifies
him in writing that he has ceased to be a member of the Board of Trustees.
(5) If the office of a member of the Board of Trustees has become vacant in terms of
subsection (4), the Council of the Society may appoint a suitable person to fill such vacancy
until the expiration of the period during which such member would, but for the vacation of his
office, have continued in office.
69 Functions and powers of Board of Trustees

(1) The Board of Trustees shall, subject to this Act and of any rules made in terms of
section seventy-three or by-laws, administer the Compensation Fund.
(2) The Board of Trustees may enter into any contract with any person or company car -
rying on insurance business whereby the Compensation Fund will be indemnified to the ex-
tent and in the manner provided by such contract, against the making of grants in terms of this
Act.
(3) The Board of Trustees may invest, in such securities as may be prescribed in rules
made in terms of section seventy-three, any moneys in the Compensation Fund which are not
immediately required for the purposes of the Compensation Fund.
(4) The Board of Trustees may borrow moneys for the purposes of the Compensation
Fund and may charge any investments of the Compensation Fund by way of security for any
such loan:
Provided that the aggregate sum owing at any one time in respect of such loans shall not
exceed such limit as shall be prescribed in rules.
70 Compensation for loss through dishonesty of registered legal practitioner
149
(1) Where it is proved to the satisfaction of the Council of the Society that any person
has sustained loss in consequence of theft, fraud, forgery or other dishonesty committed by a
registered legal practitioner or by an employee of a registered legal practitioner in connection
with—
(a) the practice by that legal practitioner of his profession; or
(b) any money or property entrusted to that legal practitioner or his employee in the
course of his practice as a legal practitioner or whilst he is acting as executor or ad-
ministrator in the estate of a deceased person or as trustee in an insolvent estate or in
a similar capacity;
the Council of the Society may, subject to this Act, direct the Board of Trustees to make a
grant to that person out of the Compensation Fund for the purpose of relieving or mitigating
that loss, and the Board of Trustees shall comply with that direction.
(2) Before considering an application for a grant in terms of this section the Council of
the Society may require the applicant to exhaust all legal remedies available to him in respect
of the loss to which the application relates.
(3) A grant may be made in terms of this section whether or not the legal practitioner
concerned was in possession of a valid practising certificate when the theft, fraud, forgery or
other dishonesty which gave rise to the loss was committed, and notwithstanding that sub-
sequently to the commission of the theft, fraud, forgery or other dishonesty the legal practi-
tioner concerned has died or ceased to practise or has been suspended from practice or his
name has been deleted from the Register.
(4) No grant shall be made in terms of this section in respect of any loss unless notice of
the loss is given by the person who sustained it in such manner and within such time after the
loss first came to his knowledge as may be prescribed in rules made in terms of section sev-
enty-three.
(5) In inquiring into any allegation of theft, fraud, forgery or other dishonesty that is the
subject of an application for a grant in terms of this section, the Council of the Society shall
have the same powers and privileges as are conferred upon commissioners by the Commis-
sions of Inquiry Act [Chapter 10:07], and sections 10 to 14 and 16 to 18 of that Act shall ap-
ply, mutatis mutandis, in respect of any such inquiry.
(6) Any person subpoenaed to give evidence or to produce books, plans or documents at
any inquiry held by the Council of the Society for the purposes of this section shall, if the
Council of the Society so allows, be entitled to witness expenses as if he had been subpoenaed
to attend at a magistrates court at a criminal trial, but the Council of the Society may in its dis-
cretion disallow the whole or any part of such expenses.
(7) The Council of the Society may direct the Board of Trustees to pay out of the Com -
pensation Fund any costs, charges and expenses incurred by the Council of the Society in an
inquiry under this section, and the Board of Trustees shall comply with that direction.
71 Subrogation of Board of Trustees

(1) On the making of any grant in terms of section seventy to any person in respect of
any loss—
(a) the Board of Trustees shall, to the amount of that grant, be subrogated to any rights
and remedies in respect of that loss which are vested in or available to—
(i) the person to whom the grant is made; or
(ii) the legal practitioner or employee whose theft, fraud, forgery or other dishon-
esty gave rise to the loss;
(b) the person to whom the grant is made shall have no right under insolvency, other
legal proceedings or otherwise to receive any sum in respect of the loss out of the
assets of the legal practitioner or employee whose theft, fraud, forgery or other dis-
150
honesty gave rise to the loss until the Board of Trustees has been reimbursed the full
amount of the grant.
(2) In subsection (1), any reference to the person to whom the grant is made or the legal
practitioner or employee shall include, in the event of his death, insolvency or other disability,
a reference to his personal representative or any other person who has authority to administer
his estate.
72 Quorum of Council and Society in respect of business of Compensation

Fund
For the transaction of any business in relation to the Compensation Fund, the quorum at a
meeting of—
(a) the Society, shall be ten members;
(b) the Council of the Society, shall be three members.
73 Rules
(1) The Board of Trustees may, with the approval of the Society in general meeting,
make rules—
(a) prescribing the procedure of meetings of the Board of Trustees;
(b) providing for the payment to members of the Board of Trustees of reasonable travel-
ling and subsistence expenses incurred in attending to the business of the Board of
Trustees;
(c) providing for the employment by the Board of Trustees of such persons as may be
necessary for the proper administration of the Compensation Fund, and fixing their
remuneration and conditions of service;
(d) prescribing the forms to be used and the procedure to be adopted in applications for
and payments of grants under section seventy;
(e) prescribing such matters as are under this Act required or permitted to be prescribed
in such rules;
(f) generally for the proper administration of the Compensation Fund and all matters in-
cidental thereto.
(2) Rules made in terms of subsection (1) shall not have effect until they have been ap-
proved by the Minister and published in a statutory instrument.
PART IX
74 Applications for practising certificates

(1) A person who wishes to obtain or renew a practising certificate shall apply to the
secretary of the Society in the form and manner prescribed in by-laws.
(2) An applicant for a practising certificate, other than a limited practising certificate,
shall submit with his application—
(a) such contribution to the Compensation Fund as may be prescribed in rules made in
terms of section seventy-three; and
(b) such contribution to the Society as may be prescribed in by-laws; and
(c) such certificates, documents and information as may be prescribed in by-laws or as
the Secretary of the Society may reasonably require;
(d) such proof as the Secretary of the Society may reasonably require that the applicant
has paid any levy due from him under the Legal Aid Act, 1996 (No. 18 of 1996).
[Paragraph inserted by sec 12 of Act No. 10 of 2000]
151
(3) An applicant for a limited practising certificate shall submit with his application
such contribution to the Society as may be prescribed in by-laws, together with such certific-
ates, documents and information as the secretary of the Society may reasonably require.
75 Issue, renewal and refusal of practising certificates

(1) On receipt of an application in terms of section seventy-four for the issue or renewal
of a practising certificate, other than a limited practising certificate, the secretary of the Soci -
ety—
(a) shall issue or, as the case may be, renew the practising certificate, if he is satisfied
that—
(i) the applicant is a registered legal practitioner who will be entitled to practise
as such if the practising certificate is issued or, as the case may be, renewed;
and
(ii) the contributions referred to in paragraphs (a) and (b) of subsection (2) of sec-
tion seventy-four have been submitted together with the application; and
(iia) the applicant has paid any levy due from him under the Legal Aid Act, 1996
(No. 18 of 1996); and
(iii) where appropriate, the applicant has submitted an audit certificate to the sec-
retary of the Society in terms of section eighty-one;
(b) shall refer the application to the Council of the Society if he is not satisfied as to the
matters referred to in paragraph (a).
(2) Where an application has been referred to it in terms of paragraph (b) of subsection
(1), the Council of the Society, after making such inquiry into the matter as it considers neces -
sary—
(a) shall direct the secretary of the Society to issue or, as the case may be, renew the
practising certificate concerned, if it is satisfied as to the matters referred to in para-
graph (a) of subsection (1); and
[Paragraph as amended by sec 13 of Act No. 10 of 2000]
(b) shall refuse to issue or, as the case may be, to renew the practising certificate con -
cerned, if it is not satisfied as to the matters referred to in paragraph (a), and shall
direct the secretary of the Society to advise the applicant accordingly.
(3) On receipt of an application in terms of section seventy-four for the issue or renewal
of a limited practising certificate, the secretary of the Society shall refer the application to the
Council of the Society.
(4) Where an application for the issue or renewal of a limited practising certificate has
been referred to it in terms of subsection (3), the Council of the Society, after making such in -
quiry into the matter as it considers necessary—
(a) may direct the secretary of the Society to issue or, as the case may, to renew the lim-
ited practising certificate concerned, if it is satisfied that—
(i) the applicant is a registered legal practitioner; and
(ii) the contribution referred to in subsection (3) of section seventy-four has been
submitted together with the application; and
(iii) no fees will be raised or charged by the applicant or any other person in re-
spect of the applicant’s practice as a legal practitioner;
and
(b) shall refuse to issue or, as the case may be, to renew the limited practising certificate
concerned, if it is not satisfied as to the matters referred to in paragraph (a), and
shall direct the secretary of the Society to advise the applicant accordingly.
152
76 Period of validity of practising certificates
(1) Subject to subsection (2), a practising certificate shall be valid—
(a) for the period of twelve months from the 1st January next following the application
therefor; or
(b) if the applicant so requires, from the date of its issue until the 31st December of the
year in which it is issued.
(2) A practising certificate issued to a legal practitioner—
(a) whose name is deleted from the Register; or
(b) who is suspended from practice in terms of section twenty-eight or thirty;
shall cease to be valid from the date of such deletion or suspension, and the legal practitioner
or former legal practitioner concerned shall forthwith return the practising certificate to the
secretary of the Society for destruction.
77 Terms and conditions of practising certificates

(1) A limited practising certificate shall be subject to such. terms and conditions as the
Council of the Society may impose in each particular case, which terms and conditions the
Council of the Society shall cause to be endorsed on the certificate.
(2) Where in terms of section twenty-eight conditions are imposed upon a legal practi-
tioner’s entitlement to practise—
(a) the legal practitioner shall forthwith return any practising certificate held by him to
the secretary of the Society, who shall endorse the conditions on the certificate; and
(b) the secretary of the Society shall endorse the conditions on any further practising
certificate issued to the legal practitioner in respect of any period during which the
conditions are operative.
(3) Terms and conditions may be endorsed on a practising certificate in terms of this
section in such abbreviated form as the Council of the Society may approve.
78 Withdrawal of practising certificate

(1) If, after due inquiry, the Council of the Society is satisfied that a legal practitioner
has not complied with any term or condition of a practising certificate held by him, the Coun-
cil of the Society may withdraw the practising certificate and, if it does so, shall direct the
secretary of the Society to advise the legal practitioner accordingly.
(2) A legal practitioner whose practising certificate has been withdrawn in terms of sub-
section (1) shall, upon being advised of the withdrawal, forthwith return the practising certi -
ficate to the secretary of the Society for destruction.
79 Appeals from decisions of Council of the Society re practising certificates

(1) Any person who is aggrieved at any decision of the Council of the Society in terms
of this Part may, within thirty days after being advised of the decision, appeal to the Supreme
Court in such manner as may be prescribed by rules of court made in terms of the Supreme
Court Act [Chapter 7:13].
(2) On an appeal in terms of subsection (1), the Supreme Court may—
(a) confirm, vary or set aside the decision appealed against; or
(b) remit the matter to the Council of the Society for further consideration,
and may make such other order as to costs or otherwise as it thinks just.
(3) The noting of an appeal in terms of subsection (1) against a decision of the Council
of the Society in terms of section seventy-eight to withdraw a practising certificate shall not
suspend the decision appealed against, unless—
153
(a) the Council of the Society, by written notice to the legal practitioner concerned,
agrees otherwise; or
(b) the Supreme Court on application directs otherwise;
in which event the Council of the Society shall return the practising certificate to the appellant
pending the outcome of the appeal.
PART X
GENERAL
80 Existing practitioners to be registered as notaries public and conveyancers

The Registrar shall enter in the Register as a notary public and conveyancer the name of
every person who, immediately before the 30th December, 1991, was registered as a legal
practitioner and, on and after that date, every such person shall be deemed, for so long as his
name remains so entered, to have been duly registered as a notary public and conveyancer in
terms of this Act.
81 Audit certificates
(1) A person who—
(a) is practising as a legal practitioner, whether on his own account or in partnership or
association with any other person; and
(b) is required by section thirteen to keep a trust account;
shall submit to the secretary of the Society, at such time or times as may be prescribed in by-
laws, an audit certificate in the form prescribed in by-laws and issued by a person who is re -
gistered as a public auditor in terms of the Public Accountants and Auditors Act [ Chapter
27:12].
(2) A person who intends to practise as provided in subsection (1) shall, before com-
mencing in such practice, submit to the secretary of the Society an audit certificate in the form
prescribed in by-laws and issued by a person who is registered as a public auditor in terms of
the Public Accountants and Auditors Act [27:12].
82 Right of State and certain parastatal employees to appear in court

(1) Notwithstanding anything to the contrary in this Act, any person who is in the em -
ployment of the State may appear in any court on behalf of the State.
(2) Notwithstanding anything to the contrary in this Act, any person who is in the em -
ployment of the Zimbabwe Revenue Authority, established by section 3 of the Revenue Au-
thority Act [Chapter 23:11] (No. 17 of 1999), and who performs services for the Zimbabwe
Revenue Authority as a legal practitioner, may appear before—
(a) the Fiscal Appeal Court established in terms of section 3 of the Fiscal Appeal Court
Act [Chapter 23:05]; or
(b) the Special Court for Income Tax Appeals established in terms of section 64 of the
Income Tax Act [Chapter 23:06];
(c) any other court in any civil and (if authorised by the Prosecutor-General under sec-
tion 6 of the Criminal Procedure and Evidence Act [Chapter 9:07]) criminal pro-
ceedings to which the Authority is a party or that involve any of the Acts specified
in the First Schedule to the Revenue Authority Act [Chapter 23:11] (No. 17 of
1999);
[Paragraph inserted by section 32 of Act No. 9 of 2006 and amended by section 33
of Act No. 5 of 2014]
and shall have the same rights and privileges as are specified in paragraphs (a), (b) and (c) of
subsection (1) of section eighty-five for persons performing services for the State as a legal
practitioner.
154
83 Non-recovery of fee
No fee in respect of anything done in contravention of any provision of this Act shall be
recovered in any action or proceeding by the person who has acted in contravention of such
provision.
84 Evidence
(1) In any criminal proceedings against any person upon a charge of having performed
any act which constitutes an offence under this Act if performed by a person who is not re-
gistered. the person charged shall be deemed to be not registered until the contrary is proved.
(2) A certificate under the hand of the Registrar—
(a) of the entry of the name of a person in the Register shall be prima facie evidence on
its production by any person that the person is registered in the Register as a legal
practitioner, notary public or conveyancer, as may be stated in the certificate;
(b) that the name of a person has been deleted from or does not appear in the Register,
shall be prima facie evidence on its production by any person that the person is not
registered in the Register;
(c) that a registered person has been suspended from practice as such for a period spe-
cified in that certificate shall be prima facie evidence on its production by any per-
son that the person concerned has been suspended from such practice for that
period.
85 Special provisions relating to legal practitioners employed by State

(1) Notwithstanding any law, including any practice or custom, to the contrary, a person
who is employed by the State and who performs services for the State as a legal practitioner
may, in respect of such employment—
(a) receive any salary, allowances or other benefits to which he is entitled in terms of
the law relating to his appointment;
(b) exercise any rights and privileges which a registered legal practitioner in private
practice may exercise;
(c) recover on behalf of the State, for the benefit of the Consolidated Revenue Fund,
any costs and fees in respect of any proceedings or other legal work which a re-
gistered legal practitioner in private practice would be entitled to recover;
(d) exercise his functions in any court or at any place even though he does not have a
fixed office or branch at the place at which such court sits or at such place, as the
case may be;
(e) instruct or employ any other registered legal practitioner as an agent or correspond-
ent in the same way as a registered legal practitioner in private practice may do so
and may receive and recover on behalf of the State, for the benefit of the Consolid-
ated Revenue Fund, any fees and allowances from any such agent or correspondent
which a registered legal practitioner in private practice would be entitled to receive
and recover.
(2) For the purposes of subsection (1), the services referred to therein shall be deemed
to include services—
(a) which are performed in, or in connection with, any matter in which the State, though
not a party, is interested or connected; and
(b) which the Minister has authorized to be performed, whether before, at the time of, or
after the performance thereof.
86 Oaths of loyalty and of office
155
A person who applies for registration as a legal practitioner shall, before being registered,
take the oaths of loyalty and of office specified in Schedule 1 to the Constitution.
87 Regulatory power
(1) The Minister may, after consultation with the Chief Justice and the president of the
Society, make regulations prescribing anything which in terms of this Act is to be prescribed
by regulation or which, in his opinion, is necessary or convenient to be prescribed for carrying
out or giving effect to this Act.
(2) Regulations made in terms of subsection (1) may provide for—
(a) fees which shall be payable in connection with registration;
(b) …
[Paragraph repealed by sec 5 of Act No. 11 of 1996, as modified by SI 135/96.]
(c) specifying the conditions subject to which legal practitioners normally resident in a
reciprocating country may be registered and the conditions subject to which any
such legal practitioners, once registered, may practise as such in Zimbabwe;
(d) the issue of duplicate or corrected certificates of registration,
(e) the form of the Register and the circumstances in which it may be inspected by
members of the public;
(f) requiring notaries public to keep protocols and registers of specified transactions
and documents, the inspection thereof and the disposal and custody thereof in the
event of death, retirement, suspension or removal from the Register of the notary
public concerned;
(g) removing or restricting the right of audience before any court of legal practitioners
who fail or refuse to make themselves available for engagement in terms of section
12 of the Legal Aid Act, 1996, when required to do so by or under regulations made
in terms of that Act;
[Paragraph as substituted by sec 26 of Act No. 18 of 1996]
(g1) contingency fee arrangements;
(h) penalties for contraventions of the regulations:
Provided that no such penalty shall exceed a fine of level five or imprisonment
for a period of six months or both such fine and such imprisonment.
[Paragraph as substituted by section 4 of Act No. 22 of 2001]
156
APPENDIX 2: LAW SOCIETY OF ZIMBABWE BY-LAWS (EXTRACTS)
The Law Society of Zimbabwe By-laws, 1982, were published in SI 314 of 1982
and have been amended by:
Statutory Instruments 191/1986, 24/1990, 155/1990, 461/1992, 209/2003, 2/2005
and 157/2014
ARRANGEMENT OF BY-LAWS
By-law
1. Title.
PART I
INTERPRETATION
2. Definitions.
3. Rules for Interpretation.
…
PART VII
LEGAL PRACTITIONERS
56. Register of legal practitioners to be kept.
57. Particulars of register.
58. Particulars to be provided by legal practitioners.
59. Penalties for failure to comply with by-law 58.
PART VIII
COMPLAINTS AND INVESTIGATIONS
60. Composition of disciplinary committee.
61. Complaints.
62. Action by disciplinary committee.
63. Action by Council.
64. Disqualification of councillors.
65. Powers of Council where its communications are ignored.
66. Legal assistant’s employer to be informed of any complaint or investigation.
67. Council’s right to apply for Disciplinary Tribunal inquiry without investigation.
67A. Duty of legal practitioners to notify Secretary of special orders of costs made against
them.
PART IX
CHARGES AND COMMISSIONS FOR PROFESSIONAL SERVICES
68. Charges to be fair and reasonable.
69. Tariffs.
70. Commission on collection of debts.
PART IXA
BOOKKEEPING
70A. Interpretation in Part IXA.
70B. Monthly trust account balances.
70C. Balancing of books of account.
70D. Notification to Council of details re trust accounts.
70E. Accounting to clients.
70F. Deposits into and payments from trust accounts to be made promptly.
70G. Fees and disbursements to be debited promptly.
157
70H. Trust cheques.
70I. Trust shortfalls.
70J. Transfers from trust to other accounts.
PART IXB
71A. Applications for practising certificates.
71B. Contributions.
71C. Audit certificate.
71D. Form of practising certificates.
PART X
MISCELLANEOUS
71. Office of the Society.
72. Staff.
73. Legal proceedings.
74. Use of Society’s property.
75. Power of Council to investigate a contravention of section 23(1)(i) of the Act.
76. Notices.
77. Interest on trust money.
78. Repeals (omitted)
FIRST SCHEDULE: Forms.
SECOND SCHEDULE: Repeals (Omitted)
IT is hereby notified that the Minister of Justice has, in terms of section 47 of the Legal
Practitioners Act, 19811, approved the following by-laws adopted by a majority of members
present at a general meeting of the Law Society of Zimbabwe:–
Title
1. These by-laws may be cited as the Law Society of Zimbabwe By-laws, 1982.
PART I
INTERPRETATION
Definitions
2. In these by-laws—
“auditor” means a person or firm appointed by the Society to act as its auditors for the
time being, and includes any qualified representative of that person or firm;
“Compensation Fund” means the Law Society Compensation Fund referred to in section
48 of the Act2;
“firm’s auditor” means an accountant registered in terms of the Accountants Act [Chapter
215]3 and engaged by a legal practitioner to provide an audit certificate referred to in
section 71C;
[Definition inserted by by-law 2 of SI 24/1990]
“form” means the appropriate form set out in the First Schedule;
1
Now section 63 of the Legal Practitioners Act [Chapter 27:07].
2
3
This should be construed as a reference to a public auditor registered in terms of the Public Account -
ants and Auditors Act [Chapter 27:12]: see section 81 of the Legal Practitioners Act [Chapter 27:07].
158
“legal assistant” means an articled clerk as defined in section 2 of the repealed Attorneys,
Notaries and Conveyancers Act [Chapter 218] or [a] person who is undergoing, or has
undergone, any practical training prescribed as a qualification for registration as a
legal practitioner, but who has not yet been registered as a legal practitioner;
“legal practitioner” means a person duly registered in terms of the Act;
“president” means the president for the time being of the Society, and includes any deputy
or person temporarily fulfilling the duties of that office;
“private practice” means the practice of law by a legal practitioner on his own account or
in partnership with one or more legal practitioners or in the employ of a legal practi -
tioner in private practice;
“Secretary” means the secretary or any assistant secretary for the time being of the Soci-
ety, and includes any deputy or person temporarily fulfilling the duties of that office;
“vice-president” means the vice-president for the time being of the Society, and includes
any deputy or person temporarily fulfilling the duties of that office.
Rules for interpretation

3. ( 1) In case of doubt as to the meaning of any of these by-laws, the interpretation of the
Council shall be binding on all legal practitioners.
(2) The Council may decide and act as it may think proper in any matter not provided for
in these by-laws.
(3) Where any duties are placed upon the president in terms of these by-laws, in the
event of his absence or incapacity to act, the same shall be discharged by the vice-president
or, should he also be absent or unable to act, by a councillor appointed by the Council.
…
PART VII
LEGAL PRACTITIONERS
Register of legal practitioners to be kept

56. A register of legal practitioners 4, in such form as may be determined by the Council,
shall be kept by the Secretary at the office of the Society, in which shall be maintained, in the
first part thereof, the hereinafter prescribed particulars of legal practitioners who are members
of the Society, and, in the second part thereof, the hereinafter prescribed particulars of all
legal practitioners who are not members of the Society.
Particulars of register
57. ( 1) The Secretary shall enter and maintain in the register, kept in terms of by-law 56,
in respect of each legal practitioner—
(a) his full name and any changes thereof; and
(b) the firm name under which he practises, whether on his own account or in partner-
ship, or by whom he is employed, and its address and any changes in respect of the
firm or his employment; and
(c) the names of his partners, if any, and any changes therein; and
(d) his business address, if not in private practice, and any changes thereof; and
(e) the date of his registration as a legal practitioner; and
4
Note that this is not the same as the Register of Legal Practitioners kept by the Registrar of the High
Court in terms of section 3 of the Act.
159
(f) the date and circumstances under which he may have ceased to practise, or may
have been suspended from practice, or otherwise disciplined by the Disciplinary
Tribunal (with the particulars thereof), or may have had his name deleted from the
Register kept in terms of section 3 of the Act; and
(g) the date upon which, and circumstances under which, he has been admonished or
otherwise dealt with by the Council in terms of paragraph (b) of sub-by-law (4) of
by-law 63; and
(h) the date upon which, and circumstances under which, he may have resumed prac-
tice, or may have had his name restored to the Register kept in terms of section 3 of
the Act; and
(i) such further particulars as the Council may from time to time consider necessary.
(2) In respect of members of the Society, the Secretary shall further enter and maintain in
the register in respect of each member—
(a) the date of his admission as a member; and
(b) the date upon and circumstances under which he may have ceased to be a member;
and
(c) the date upon which, and circumstances under which, he may have been readmitted
to membership; and
(d) the subscription, and any changes in the amount thereof, payable by him from time
to time, and the date upon which each subscription or change in the amount thereof
for which he is liable is paid.
Particulars to be provided by legal practitioners

58. ( 1) Every person registered as a legal practitioner shall, within twenty-one days from
the date of registration—
(a) lodge with the Secretary a certified copy of the original certificate of registration is-
sued in terms of subsection (3) of section 3 of the Act; and
(b) furnish to the Secretary the particulars specified in by-law 57 as may be relevant.
(2) Every legal practitioner shall, within twenty-one days of the event, notify the Secret -
ary—
(a) of any changes in the particulars previously furnished to the Secretary as required by
this by-law; and
(b) when he ceases to practise or, having ceased to practise, when he resumes practice,
of the date and circumstances thereof.
(3) Every legal practitioner, if requested by the Secretary, shall furnish, within twenty-
one days of the date of such request, such information and produce such documents as may be
required for the purpose of completing, amending or updating the register prescribed in by-
law 56.
Penalties for failure to comply with by-law 58

59. In the event of any practitioner failing to comply with any provision of by-law 58
within the time-limits prescribed, he shall be liable to pay a penalty of ten dollars for each
week in which he remains in default, and proceedings for recovery may be taken by the Coun-
cil. All penalties recovered shall form part of the funds of the Society.
PART VIII
COMPLAINTS AND INVESTIGATIONS
Composition of disciplinary committee
160
60. ( 1) There shall be a standing committee of the Council, to be known as the “discip-
linary committee”, consisting of three councillors appointed from time to time by the Council.
(2) It shall be the duty of the disciplinary committee to take such action in terms of this
Part as may seem to it to be proper if it has reason to suspect that a legal practitioner or legal
assistant may have been guilty of conduct described in section 23 or in subsections (1) or (2)
of section 28 of the Act (hereinafter, in this Part, called “unprofessional conduct”).
(3) Two members of the disciplinary committee shall form a quorum.
Complaints
61. ( 1) A complaint against a legal practitioner or legal assistant shall be submitted to the
Secretary, who may—
(a) require the complaint to be reduced to writing by the complainant;
(b) require the complainant to provide such further or additional particulars or evidence
as he considers necessary or desirable;
(c) upon informing the legal practitioner or legal assistant concerned, in writing, of the
nature of the complaint, require him to reply thereto, in writing, within fourteen
days.
(2) If the Secretary considers that the complaint is without substance, he shall advise the
complainant that he intends to take no further action unless required by the complainant to do
so.
(3) If the Secretary considers that the complaint may have substance, or is required by
the complainant to take further action in terms of sub-by-law (2), he shall submit the com-
plaint and any further or additional particulars or evidence in his possession relating thereto,
and any reply received from the legal practitioner or legal assistant to the disciplinary com-
mittee for consideration.
(4) If, without a formal complaint having been received, it appears that a legal practi-
tioner or legal assistant may have been guilty of unprofessional conduct, the Secretary may
write to the legal practitioner or legal assistant concerned, informing him of the nature of the
conduct suspected and requiring him to reply thereto, in writing, within fourteen days.
(5) Upon the expiry of the said period of fourteen days, and whether or not a reply has
been received to his letter, the Secretary shall submit the matter to the disciplinary committee
for consideration.
Action by disciplinary committee

62. ( 1) Upon receipt of any matter referred to it by the Secretary in terms of by-law 61,
the disciplinary committee shall cause such further investigation to be made in the matter as it
deems fit, and, by notice written and dispatched by the Secretary, on its instructions, to the
complainant, legal practitioner or legal assistant, as the case may be, may—
(a) require the person addressed—
(i) to make or provide affidavits, by a specified date, supporting the facts and cir-
cumstances alleged by him;
(ii) to produce, by a specified date, any book, deed, document, paper or other
writing in his possession or under his control which in any way relates to or
concerns the matter in question;
(b) invite the legal practitioner or legal assistant concerned to make written representa-
tions, by a specified date, on the substance of the complaint and such other matters
as it may direct.
(2) Upon proof of the dispatch of any notice referred to in sub-by-law (1), and after the
expiry of any date specified therein, and on completion of its investigations, the disciplinary
161
committee shall proceed to consider whether a prima facie case of unprofessional conduct is
disclosed, and shall thereafter refer the matter to the Council, with its findings and recom-
mendations.
Action by Council
63. ( 1) When any matter is referred to it by the disciplinary committee in terms of by-
law 62, the Council shall consider the matter and the disciplinary committee’s findings and
recommendations, and shall proceed as hereinafter in this by-law set out.
(2) If the Council considers that further investigation is necessary before a decision can
be taken, it shall refer the matter back to the disciplinary committee for further action in terms
of by-law 62, with such directions as it thinks fit.
(3) If the Council considers that a prima facie case of unprofessional conduct is not dis-
closed, it shall direct the Secretary to advise the complainant and the legal practitioner or legal
assistant concerned accordingly.
(4) If the Council considers that a prima facie case of unprofessional conduct is dis-
closed, and has satisfied itself that the legal practitioner or legal assistant concerned has been
afforded a reasonable opportunity to reply to the substance of the complaint, it may—
(a) refer the matter to the Disciplinary Tribunal for inquiry; or
(b) decide to adjudicate itself upon the matter, where for any other reason it considers
that the matter should not be the subject of inquiry by the Disciplinary Tribunal, and
shall thereupon take such action, including admonishing the legal practitioner or
legal assistant, as it thinks fit.
Disqualification of councillors
64. ( 1) No councillor shall sit as a member of the disciplinary committee or of the Coun -
cil in any investigation or inquiry in which the complainant or the legal practitioner or legal
assistant whose conduct is the subject of investigation is a partner or employee of the council-
lor or of the firm of which that councillor is a partner or employee.
(2) Where a councillor is disqualified in terms of sub-by-law (1) from sitting as a mem-
ber of the disciplinary committee, the Council may appoint some other councillor to act in his
stead as a member of the disciplinary committee for the purposes of the inquiry concerned.
Powers of Council where its communications are ignored

65. If a complainant, legal practitioner or legal assistant unreasonably neglects or wil-
fully refuses to furnish to the Secretary, the disciplinary committee or the Council, in connec-
tion with any proceedings under this Part, any statement, affidavit, particulars, book, deed,
document, paper or other writing required of him—
(a) in the case of a complainant, the Secretary, disciplinary committee or Council, as
the case may be, may refuse to proceed further with the investigation or inquiry;
(b) in the case of the legal practitioner or legal assistant, he shall, ipso facto, be guilty of
unprofessional conduct, and the Council shall refer the papers to the Disciplinary
Tribunal for inquiry.
Legal assistant’s employer to be informed of any complaint or investigation

66. In any inquiry or investigation into the conduct of a legal assistant in terms of these
by-laws, copies of all communications addressed to such legal assistant shall be sent in the
same manner to his principal or employer, who will be entitled to make such representations
on behalf of his legal assistant as he may see fit.
162
Council’s right to apply for Disciplinary Tribunal inquiry without investigation
67. The Council shall have the right to apply to the Disciplinary Tribunal for an order
against a legal practitioner or legal assistant in terms of subsection (1) or (2) of section 28 of
the Act without following the procedure provided for in this Part, and without any notice to
the legal practitioner or legal assistant, other than such notice as may be required in terms of
the Legal Practitioners (Disciplinary Tribunal) Regulations, 1981, if—
(a) the member has been convicted of an offence of the kind referred to in subsection
(3) of section 28 of the Act; or
(b) the Council is of the opinion that delay in making the application might be prejudi -
cial to the public or any member thereof, or to the administration of justice, or to the
reputation of the profession.
Duty of legal practitioners to notify Secretary of special orders of costs made against them
67A. ( 1) Where a court has—
(a) ordered a legal practitioner to pay the costs of any proceedings de bonis propriis; or
(b) directed that no costs be recovered by a legal practitioner from his client;
the legal practitioner shall notify the Secretary of the order or direction within seven days of
his becoming aware of it, and any failure to do so shall constitute unprofessional, dishonour-
able or unworthy conduct on the part of that legal practitioner.
[By-law inserted by by-law 2 of SI 461 of 1992]
PART IX
CHARGES AND COMMISSIONS FOR PROFESSIONAL SERVICES
Charges to be fair and reasonable

68. ( 1) In regard to all professional services in matters not provided for by the rules of
any competent court of law or by the Council under by-law 70, legal practitioners shall charge
such sum as may be fair and reasonable, having regard to all the circumstances of the case
and, in particular, the following matters—
(a) the complexity of the matter or the difficulty or novelty of the questions raised;
(b) the skill, labour, specialised knowledge and responsibility involved on the part of
the legal practitioner;
(c) the number and importance of the documents prepared or perused, without regard to
length;
(d) the place where, and the circumstances in which, the business or any part thereof is
transacted;
(e) the time expended by the legal practitioner;
(f) where money or property is involved, its amount or value;
(g) the importance of the matter to the client;
(h) any tariff of recommended charges issued by the Council.
(2) On the taxation of any bill of costs, it shall be the duty of the legal practitioner to sat -
isfy the taxing officer as to the fairness and reasonableness of the charge or charges made.
Tariffs
69. The Council may from time to time fix, prescribe or recommend tariffs of charges
and commissions or minimum or maximum charges and commissions for services rendered
by legal practitioners in matters not provided for by the rules of any competent court of law,
163
and no legal practitioner shall charge fees other than so fixed or less than any minimum pre-
scribed or more than any maximum fee prescribed:
Provided that—
(i) no tariff so fixed or prescribed shall prohibit any legal practitioner from acting in
any proper case or matter without making any charge therefor;
(ii) until tariffs are so fixed or prescribed by the Council, legal practitioners shall not
charge less than the minimum fees for conveyancing and for non-litigious work
other than conveyancing set out in the Second and Third Schedules, respectively, to
the Law Society of Southern Rhodesia By-laws, 1939.5
Commission on collection of debts

70.(1) In this by-law—
“payment or instalment collected” includes—
(a) any payment made by, or on behalf of, any debtor direct to the client, whether
in cash or in kind, or by way of novation or set-off, after the matter has been
handed to the legal practitioner for collection:
Provided that—
(i) at the time when the payment is arranged or made, the matter is still in
the hands of the legal practitioner for collection;
(ii) the debtor has received a demand from the legal practitioner;
and
(b) the value of movables finally recovered or repossessed by the client in terms of
hire-purchase or suspensive sale agreement, leases of movables or agreements
of a like nature, which value shall be any value fixed upon the movables by the
court, failing which the value fixed upon the movables by a sworn appraiser:
Provided that—
(i) where the total unpaid amounts owing under the agreement are less
than the value of the movables, the charge shall be calculated upon
such total unpaid amounts, and not on the value of the movables;
(ii) where no value has been fixed upon the movables, the charge shall be
calculated upon the total unpaid amounts owing under the agreements;
and
(c) all or any legal costs payable by the debtor to the client and collected from the
debtor, but shall not, in the case of claims made by a banker against a customer
or guarantor for the recovery of moneys advanced upon overdraft, include any
sums paid by the debtor directly to the banker;
[Definition as amended by by-law 3 of SI 155 of 1990]
“trade debt” means a liquidated claim for money or for the delivery of movable property
against a debtor in default which arises directly or indirectly from any trade, business,
profession, calling or other gainful occupation publicly carried on by the creditor, or
which is claimed by the State or any statutory or local authority, but shall not include
—
(a) any claim, other than a claim for arrear instalments only, for the recovery of
moneys due under a mortgage bond hypothecating immovable property; or
(b) any claim, other than a claim for arrear instalments only, for the payment of the
purchase-price of immovable property in terms of any agreement of sale;
5
Appropriate tariffs have been fixed and prescribed, so this proviso (i.e. proviso (ii)) falls away.
164
“uncontested claim” includes—
(a) any claim not involving the issue of any court process; and
(b) any claim commenced by the issue of a summons where the defendant does not
enter an appearance to defend; and
(c) any judgment debt, not the subject of a pending appeal, which has not been
paid in full within seven days after demand, or such longer period after demand
as may have been stipulated in the demand; and
(d) any claim which, after an appearance to defend has been entered but prior to
judgment, is settled upon terms providing for payment in instalments, or for a
single payment which is not, in fact, paid in terms of the settlement:
Provided that a settlement which envisages payment of the capital sum
plus costs to be taxed or agreed shall not be regarded as providing for payment
in instalments merely because capital and costs are paid separately.
(2) A legal practitioner instructed to collect an uncontested claim for trade debt shall be
entitled and obliged, in lieu of any other fees and charges, save for disbursements, and save as
is hereinafter provided, to charge his client a collection commission at the rate of—
(a) ten per centum on the first two hundred thousand dollars; and
(b) five per centum on the next six hundred thousand dollars; and
(c) two comma five per centum on the balance;
of any payment or instalment collected:
[Sub-by-law as amended by by-law 3 of SI 155 of 1990]
Provided that—
(i) whenever payment in full is recovered in one lump sum in response to a letter of de -
mand only, the maximum commission payable shall be the sum of five hundred dol-
lars;
[Proviso (i) as amended by by-law 3 of SI 155 of 1990]
(ii) in the collection of a claim falling within the jurisdiction of the magistrates courts,
the legal practitioner shall be entitled and obliged, in addition, to charge his client
with appropriate fees for any services rendered (whether or not recoverable from the
debtor) referred to in Table A of the Second Schedule to the Magistrates Court
(Civil) Rules, 1980;
(iii) in the collection of a claim falling outside the jurisdiction of the magistrates courts,
the legal practitioner shall, in addition to collection charges, be entitled and obliged
to charge his client with fees for professional services rendered in regard to the ob -
taining of judgment against the debtor, and in regard to all forms of execution pro-
ceedings, including garnishee and civil imprisonment proceedings, instituted against
the debtor on the client’s instructions;
(iv) a legal practitioner who is not obliged in terms of this by-law to charge collection
commission on moneys collected by him shall be entitled, by agreement with his cli-
ent, to charge collection commission on such moneys on the scale herein provided,
or on some lower scale, and, in the absence of any such agreement, shall be entitled
to receive a fair and reasonable remuneration for work actually done by him on his
client’s instructions.
(3) The Council of the Society may, on the written application of a member, but only in
exceptional circumstances, authorise such member to depart from the provisions of this by-
law.
PART IXA
BOOKKEEPING
165
[Part inserted by by-law 3 of SI 191 of 1986]
Interpretation in Part IXA

70A. In this Part—
“auditor” …
[Definition repealed by by-law 3 of SI 24 of 1990]
“bank trust account” means a current account kept by a legal practitioner at a bank in
terms of subsection (1) of section 13 of the Act;
“firm” means—
(a) a legal practitioner in private practice on his own account; or
(b) a partnership of legal practitioners in private practice;
but does not include a legal practitioner who is not obliged to open a trust account in
terms of subsection (3) of section 13 of the Act;
“trust investment account” means an account kept by a legal practitioner in terms of sub -
section (2) or (3) of section 13 of the Act.
Monthly trust account balances

70B.(1) At least once in respect of every calendar month, within thirty days after the end
of the calendar month concerned, every firm shall—
(a) extract a list of the credit balances shown in respect of each client in each trust ac-
count; and
(b) note each balance listed in terms of paragraph (a) in some permanent and prominent
manner in the ledger account from which such balance was extracted, by means of a
mark approved by the firm’s auditor:
Provided that no such mark shall be required where the ledger account is recor-
ded electronically by a computer and the list of credit balances has been produced
automatically.
(2) Every firm shall preserve the list of balances extracted in terms of subsection (1) for
a period of not less than three years from the date on which the list was extracted.
Balancing of books of account

70C. Every firm shall ensure that the books of account that are required to be kept in
terms of section 14 of the Act are written up at least once in each month and are balanced
within three months after the last date upon which the lists referred to in by-law 70B are re -
quired to be extracted.
Notification to Council of details re trust accounts

70D.(1) Immediately after opening a trust account in terms of subsection (1), (2) or (3)
of section 13 of the Act, a firm shall notify the Council and the firm’s auditor of the name and
address of the bank, building society or other institution at which the trust account is being
kept.
(2) Every firm which, on the date of commencement of the Law Society of Zimbabwe
(Amendment) By-laws, 1986 (No. 1)6, keeps a trust account in terms of section 13 of the Act,
which was opened on or before that date shall, within six weeks after that date, notify the
council and the firm’s auditor, if he has not already been notified, of the name and address of
the bank, building society or other institution at which the trust account is being kept.
6
The date of commencement of the amendment by-laws was the 27th June, 1986.
166
(3) Within ten days after being required to do so by the Council, a firm shall furnish the
Council with signed statements issued by each bank, building society or other institution at
which the firm keeps a trust account, certifying the amount standing to the credit or debit, as
the case may be, of the account at such date as may be specified by the Council.
Accounting to clients
70E.(1) Within a reasonable time after the performance or earlier termination of its man-
date, every firm shall deliver to the client concerned a written statement setting out with reas -
onable clarity—
(a) details of all amounts received by the firm in connection with the matter concerned,
with appropriate and adequate explanatory narrative; and
(b) particulars of all disbursements and payments made by the firm in connection with
the matter; and
(c) all fees and other charges raised against or charged to the client and, where any fee
represents an agreed fee, a statement that it was agreed and the amount so agreed;
and
(d) the amount payable to or by the client.
(2) Unless otherwise instructed, every firm shall pay any amount due to its client within
a reasonable time.
Deposits into and payments from trust accounts to be made promptly

70F.(1) Whenever a firm receives money on account of any person, the firm shall de-
posit the money promptly in its trust bank account, either on the same day that it receives the
money or on the first banking day thereafter on which it can reasonably be expected to do so.
(2) Whenever any money deposited in a trust account of a firm becomes payable to any
person, the firm shall pay the money promptly to the person entitled to it.
Fees and disbursements to be debited promptly

70G. Either before or within a reasonable time after claiming payment of any fee due to
it or in respect of any disbursement made by it, a firm shall pass a corresponding debit in its
books of account.
Trust cheques
70H. Every firm shall ensure that each cheque drawn upon its bank trust account—
(a) is not made payable to “cash” or “bearer” or to “cash or order” but is made payable
to or to the order of a specific payee named or designated on the cheque; and
(b) indicates the name of the firm and bears the words “trust account”.
Trust shortfalls
70I. The total of the trust credit balances shown on the trust account in the ledgers of any
firm shall not at any time exceed the total amount of the moneys in the firm’s bank trust ac -
count and any trust investment accounts, together with the trust cash in hand.
Transfers from trust to other accounts

70J. Every firm shall employ and maintain an adequate accounting system which ensures
that—
(a) notwithstanding the payment of any money into a special trust investment account,
the client concerned is still reflected as a trust creditor; and
167
(b) generally, the requirements of this Part are complied with whenever money is trans-
ferred from the firm’s trust bank account to any other account.
PART IXB
Applications for practising certificates

71A.(1) An application in terms of section 58A of the Act 7 for a practising certificate
shall be—
(a) made to the Secretary—
(i) in the case of an applicant who intends to commence practice as a legal prac-
titioner, not less than thirty days before he intends to commence such prac-
tice; or
(ii) in the case of an applicant who is practising as a legal practitioner and is in
possession of a practising certificate, not less than thirty days before such cer-
tificate expires:
Provided that, subject to section 58B of the Act 8, nothing contained in this
paragraph shall be construed as permitting the Secretary to refuse to consider any
application made after the periods specified in subparagraph (i) or (ii); and
(b) made in Form D with such variations as the circumstances may require; and
(c) accompanied by—
(i) the appropriate contribution to the Society specified in by-law 71B; and
(ii) such contribution to the Compensation Fund as may be prescribed in rules
made in terms of section 58 of the Act9; and
(iii) any audit certificate which may be required in terms of section 59A of the
Act10.
(2) The Secretary may require an applicant for a practising certificate to furnish him with
such further information and particulars as may be reasonably required in respect of that ap-
plication before issuing a certificate to the applicant.
Contributions
71B. There shall be submitted with every application for a practising certificate in terms
of section 58A of the Act11 a contribution of one million five hundred thousand dollars pay-
able to the Society:
Provided that, where such application is made—
(a) by a person who intends to commence practice as a legal practitioner on or after the
first day of July in any year, the contribution shall be seven hundred and fifty thou-
sand dollars;
(b) by a person who has never previously held a practising certificate, the contribution
shall be one million dollars;
7
8
9
10
11
168
(c) by a person who is applying for a limited practising certificate, the contribution shall
be one million dollars.
[By-law as amended by by-law 2 of SI 2 of 2005]
Audit certificate
71C.(1) Save in the case of a legal practitioner who is to be employed by or to enter into
partnership with a legal practitioner who has submitted an audit certificate in terms of subsec -
tion (2), a person who intends to commence practice as a legal practitioner and is required to
open and keep a separate trust account in terms of section 13 of the Act shall, before doing so,
submit to the Secretary an audit certificate in form E signed by the firm’s auditor.
(2) A person who is practising as a legal practitioner and is required to open and keep a
separate trust account in terms of section 13 of the Act shall at least once in each calendar
year submit to the Secretary an audit certificate in form F signed by a firm’s auditor—
(a) within two months of the annual audit, if any, of the trust books of account of the
practice of the legal practitioner or firm of legal practitioners with which the legal
practitioner is associated, whether as a partner, employee or otherwise; or
(b) within six months of the annual closing of the trust books account of the practice;
or
(c) at the same time as application is made for a practising certificate;
whichever is the earlier.
(3) One audit certificate submitted by a firm of legal practitioners shall constitute com-
pliance with subsection (2) by all the legal practitioners associated with such firm, whether as
partners, employees or otherwise.
(4) Where in any year a legal practitioner—
(a) retires from partnership and thereafter practises on his own account or in partnership
with other legal practitioners; or
(b) who has formerly practised on his own account commences to practise in partner-
ship;
he shall submit an audit certificate covering all relevant periods both before and after the
change or changes.
(5) Where a legal practitioner who has practised on his own account retires from prac -
tice, he shall submit an audit certificate covering the period up to the date of his retirement.
(6) Should an audit certificate submitted to the Secretary reveal a shortfall in trust funds
or other irregularity on the part of the legal practitioner or legal practitioners concerned, the
Secretary shall forward such audit certificate, together with any explanation tendered by the
legal practitioner or legal practitioners concerned, to the disciplinary committee established in
terms of Part VIII.
Form of practising certificates

71D. A practising certificate issued by the Secretary in terms of subsection (1) or (2) of
section 58B of the Act12 shall be in form G, while a limited practising certificate referred to in
subsection (4) of section 58B13 of the Act shall be in form H.
PART X
MISCELLANEOUS
12
Now section 75(1) or (2) of the Legal Practitioners Act [Chapter 27:07].
13
Now section 75(4) of the Legal Practitioners Act [Chapter 27:07].
169
Office of the Society
71. The office of the Secretary and the headquarters of the Council shall be at such place
in Zimbabwe as the Council may from time to time decide, and such office shall be the office
of the Society where the records, books and documents of the Society shall be kept.
Staff
72.(1) The Council may appoint, on such conditions of service as it thinks fit, and re-
move a Secretary, treasurer, librarian and such clerks, officers and servants as it may from
time to time think fit. It may further employ one of the Society’s members or his firm as a
legal practitioner or legal practitioners for the Society.
(2) The Council may pay to such Secretary, treasurer, librarian and other officers and
servants of the Society such salaries, fees or wages, or give them or any of them remunera-
tion, as it may from time to time think advisable.
Legal proceedings
73. Whenever the Council has decided to appear in any legal proceedings, it may, by res-
olution, delegate to the president, vice-president or other councillor or councillors the author-
ity, with power of substitution, to employ legal practitioners and to do any act or sign any
document on behalf of the Society in the course of such proceedings.
Use of Society’s property

74. The Council may from time to time make such rules respecting the use by the mem -
bers and others of the property of the Society as it shall deem fit, and may rescind or alter
such rules.
Power of Council to investigate a contravention of section 23(1)(i) of the Act

75. Where the Council has reason to believe that a contravention of any of the provisions
of paragraph (i) of subsection (1) of section 23 of the Act is taking place, it may call upon the
legal practitioner concerned to furnish it with an affidavit explaining the position of the em -
ployee in the legal practitioner’s business and the amount and manner of his remuneration.
The Council shall have the same power where a person, not being a legal practitioner, is con-
tinuously occupied in or about the premises of a legal practitioner under such circumstances
as warrants the Council in concluding that a contravention of the Act is taking place.
Notices
76. Any letter, notice, voting-paper or other document in connection with any business
affecting the Society which, in accordance with these by-laws, is required to be sent by the
Council or by the Secretary or otherwise to any member, if sent to him at his business address
as entered in the register kept by the Secretary in terms of by-law 56, shall be considered to
have been duly and properly sent, and, if such letter, notice, voting-paper or other document
be sent by post, notice of the contents thereof shall be deemed to have been received by such
member at the time when it would have reached him in the ordinary course of post.
Interest on trust money

77. That portion of the interest accruing during the period covered by the audit certificate
referred to in by-law 71C on money deposited in an account opened in terms of subsection (1)
or (2) of section 13 of the Act which is payable to the Compensation Fund shall be paid at the
same time as application is made in terms of section 58A of the Act 14 for a practising certific-
ate.
14
170
Repeals
78. [Omitted]
FIRST SCHEDULE (By-law 2)

FORMS
[Forms A – C are omitted]
Form D

APPLICATION FOR PRACTISING CERTIFICATE
1. Name of firm
2. Period (delete inapplicable):
(a) year ending on 31 December 19 …
or
(b) from 19 … to 31 December 19 …
3. Full names of applicant(s)—
(a) partners or principals
(b) qualified assistants
4. Address at which business will be carried out
5. Other place(s) of business with name of person in charge
6. If any applicant(s) had ceased to practise and now intend(s) to resume practice—
(a) former business address and name of firm
(b) when applicant(s) ceased to practise

7. Whether applicant(s) is/are a person(s) who is/are required by section 13 of the Act to
keep a trust account (see note 3): YES/NO.
I/WE being the above-named applicant(s), do hereby certify that the facts set out above
are, to the best of my/our knowledge and belief, true and correct.
Dated at this … day of 19 …
(Signatures of all applicants)

NOTES:
(1) This application must be accompanied by—
(a) the prescribed contribution for each applicant;
(b) an audit certificate or certificates in form E or form F, if the same have not previ-
ously been submitted;
or the declaration in note 3 below duly signed.
171
(2) If the answer to paragraph is no and the applicant has not submitted an audit certific-
ate, the following declaration must be signed:
I/WE, the above-named applicant(s), do hereby certify that in my/our capacity as legal
practitioner(s) or as executor(s), administrator(s) or trustee(s), I/we have not held or received
any moneys for or on behalf of another person during the period of validity of any practising
certificate which has been issued to me/us and which is about to expire, nor will I/we during
the period of validity of the practising certificate for which I am / we are now applying, hold
or receive any such moneys before having produced an audit certificate satisfactory to the
Secretary.
(Signatures of all applicants)

(4) If the answer to paragraph 9 is yes, the following declaration must be signed:
I, the above-named applicant, do hereby certify that if I am issued with a limited prac-
tising certificate, no fees will be raised or charged by me or any other person in respect of any
work carried out under the authority of such certificate.
(Applicant)
[Form inserted by By-law 6 of SI 24 of 1990]
Form E
AUDIT CERTIFICATE FOR THE LAW SOCIETY OF ZIMBABWE

___________
In terms of section 81 of the Legal Practitioners Act [Chapter 27:07], in respect of
Legal Practitioner/s who is/are intending to commence practice.
We, , public auditors registered in terms of the Public Accountants and Auditors Act
[Chapter 27:12], hereby certify that in respect of the above-mentioned legal practitioner(s)
who intend(s) to commence practice and is/are required to open and keep a separate trust ac-
count in terms of section 13 of the Legal Practitioners Act, we have explained a system of
bookkeeping which is adequate to enable the legal practitioner(s) to comply fully with the
provisions of sections 13 and 14 of the Act and Part IXA of the Law Society of Zimbabwe
By-laws.
Public Auditors
[Form inserted by By-law 6 of SI 24 of 1990. References in the form to chartered
accountants and to statutory provisions have been up-dated.]
Form F
AUDIT CERTIFICATE FOR THE LAW SOCIETY OF ZIMBABWE

___________
ISSUED IN TERMS OF SECTION 81 OF THE LEGAL PRACTITIONERS ACT [Chapter 27:07]
IN RESPECT OF LEGAL PRACTITIONERS
___________
172
We, , Public Auditors registered in terms of the Public Accountants and Auditors Act
[Chapter 27:12], certify:
1. That we have examined the system of bookkeeping employed by the above-named
firm for a period of … months ending on the … day of 19 … (being a date not more than
six months prior to the date of this certificate).
2. That from such examination we are satisfied that the system is adequate to enable the
firm to comply with the provisions of sections 13 and 14 of the Legal Practitioners Act
[Chapter 27:07] and Part IXA of the Law Society of Zimbabwe By-laws, 1982, as inserted by
SI 191 of 1986.
3. That we have prepared/checked a list of the balances shown on the trust account of the
firm at the closing date of the period covered, as specified in paragraph (1) and at the … day
of
19… being one other date during that period selected by us.
4. That the total of funds kept by the firm in its trust accounts together with trust funds
on hand in cash or in the form of unpresented or uncleared cheques on each of the said dates
did/did not fall short of the total of the balances shown on the trust account of the firm on
those dates according to the said list. (In the event of there being a shortfall, describe the ex-
tent and nature thereof and whether at the date of signing the certificate the position has been
rectified to the satisfaction of the auditor).
5. That the firm has/has not during the period in question kept a trust account opened in
terms of subsection (1) or (2) of section 13 of the Legal Practitioners Act [Chapter 27:07].
6. That the total amount of interest accrued during the period in question in respect of
each of the accounts opened in terms of subsection (1) or (2) of section 13 of the Legal Practi-
tioners Act [Chapter 27:07] amounted to $ .
7. That the firm has during the period in question prepared and retained a list of the
credit balances in respect of each client shown in its trust account each month during the
period in question.
Public Auditors
[Form inserted by By-law 6 of SI 24 of 1990. References in the form to chartered
accountants and to statutory provisions have been up-dated.]
Form G
THE LAW SOCIETY OF ZIMBABWE

PRACTISING CERTIFICATE
________
is registered as a legal practitioner and is entitled to practise as such during the year ending 31
December 19 …
(See reverse for any applicable conditions)
Secretary
Form H
THE LAW SOCIETY OF ZIMBABWE

LIMITED PRACTISING CERTIFICATE
173
is registered as a legal practitioner and is entitled to practise as such during the year ending 31
December 19 … subject to the condition that
Secretary
174
APPENDIX 3: LEGAL PRACTITIONERS (GENERAL) REGULATIONS (EX-
TRACTS)
The Legal Practitioners (General) Regulations, 1999, were published in SI 137 of
1999
Section
1. Title.
2. Application for registration.
3. Registration.
4. Practical legal training after registration.
5. Trust accounts.
6. Protocols and registers.
7. Duplicate or corrected registration certificates.
8. Inspection of Register.
9. Notice of deletion from Register.
10. Repeals and savings.
FIRST SCHEDULE: Forms of Registration Certificate.
SECOND SCHEDULE: Repeals (Omitted)
IT is hereby notified that the Minister of Justice, Legal and Parliamentary Affairs, in
terms of section 87 of the Legal Practitioners Act [Chapter 27:07] and after consultation with
the Chief Justice and the president of the Law Society of Zimbabwe, has made the following
regulations:–
Title
1. These regulations may be cited as the Legal Practitioners (General) Regulations, 1999.
Application for registration

2.(1) Notice of intention to apply for registration as a legal practitioner, notary public or
conveyancer shall be given to the secretary of the Society not later than thirty days before the
application is made, and such notice shall be accompanied by copies of all documents referred
to in paragraphs (a) to (d) of subsection (3), together with a fee of fifty dollars, which shall be
paid to the Society.
(2) An application for registration as a legal practitioner, notary public or conveyancer
shall set forth the grounds upon which the applicant relies for registration.
(3) An application referred to in subsection (2) shall be accompanied by—
(a) documentary evidence that the applicant possesses the qualifications for registration
prescribed in rules made by the Council for Legal Education in terms of section 49
of the Act; and
(b) where the applicant has been exempted by the Council for Legal Education from
passing any examination in terms of the Legal Practitioners (Council for Legal Edu-
cation) Rules, 1992, documentary evidence of such exemption; and
(c) the applicant’s birth certificate or, in default thereof, such other documentary proof
as he can produce to show that he is of, or above, the age of twenty-one years; and
(d) documentary evidence that the applicant satisfies the requirements of paragraphs (c),
(e) and (f) of subsection (1) of section 5 of the Act; and
(e) a certificate from the secretary of the Society stating that the applicant has given the
notice required by subsection (1); and
175
(f) a fee of fifty dollars, which shall be payable to the Registrar.
(4) Upon the hearing of an application for registration, any registered legal practitioner
may request the leave of the High Court to appear as amicus curiae to oppose the granting of
the application.
Registration
3.(1) Where the High Court grants an application for registration, the Registrar shall
enter in the Register—
(a) the full name and address of the applicant; and
(b) the applicant’s qualifications for registration; and
(c) the date on which the application was granted; and
(d) the capacity, whether as a legal practitioner, notary public or conveyancer, in which
the applicant is registered.
(2) The certificate of registration issued to a person whose name is entered in the register
shall be in the appropriate form set out in the First Schedule.
Practical legal training after registration

4.(1) Subject to this section, a legal practitioner shall not commence to practise as a prin-
cipal, whether on his own account or in partnership or association with any other person, un-
less he has been employed as a legal assistant for not less than thirty-six months after registra-
tion with a legal practitioner who has himself—
(a) been in practice in Zimbabwe for at least forty-eight months; and
(b) been approved by the Minister after consultation with the Council for Legal Educa-
tion and the Council of the Society.
(2) Subject to this section, on and after such date as the Minister may specify in the Gaz-
ette after consultation with the Council for Legal Education, a legal practitioner shall not
commence to practise as a principal, whether on his own account or in partnership or associ -
ation with any other person, unless, in addition to satisfying the requirements of subsection
(1)—
(a) he satisfies the Council for Legal Education that, while he was employed as a legal
assistant as provided in subsection (1), he attended a full course of seminars for con-
tinuous legal education that were organised by the Council; and
(b) he has passed written examinations set by—
(i) the Council for Legal Education; or
(ii) the Council of the Society with the approval of the Council for Legal Educa-
tion;
in the following subjects—
A. trust accounting; and
B. practice management and administration; and
C. ethics and professional conduct of legal practitioners; and
D. where applicable, any other subject specified by the Council for Legal Educa-
tion in terms of subsection (2).
(3) The Council for Legal Education, having regard to a legal practitioner’s ability or ex-
perience or any other relevant factor, may—
(a) exempt him from attendance at any seminar and additionally, or alternatively, ex-
cuse his failure to attend any seminar referred to in paragraph (a) of subsection (2);
176
(b) in special circumstances, specify that a legal practitioner shall pass one or more ad-
ditional examinations for the purpose of paragraph (b) of subsection (2).
(4) Subsection (1) shall not apply to a legal practitioner who—
(a) has been granted a residential exemption certificate in terms of section 7 of the Act,
in respect of the matter to which the certificate relates; or
(b) is normally resident in a reciprocating country and has been in practice as an advoc -
ate, barrister, attorney or solicitor, or in a capacity equivalent to that of a legal prac-
titioner in Zimbabwe, for at least forty-eight months.
(5) Subsection (2) shall not apply to a legal practitioner who—
(a) has been granted a residential exemption certificate in terms of section 7 of the Act,
in respect of the matter to which the certificate relates; or
(b) was registered before the date specified by the Minister in terms of that subsection:
Provided that such a legal practitioner shall comply with any provisions of the Act or any
regulations made thereunder that were applicable to him when he was registered.
Trust accounts
5.(1) A trust account, kept by a legal practitioner in terms of subsection (2) of section 13
of the Act, shall be such as to allow the withdrawal of funds therefrom on not more than
seven days’ notice.
(2) A curator bonis appointed in terms of subsection (2) of section 16 of the Act to con-
trol and administer a trust account may be vested with any one or more of the following
rights, duties and powers—
(a) to take possession of all books, records and documents relating to the trust account;
(b) to advertise, in such manner as the Master of the High Court may direct, for the
lodging of claims in respect of the trust account;
(c) to record any claims in respect of the trust account lodged in response to any advert-
isement;
(d) to settle, in such manner as the Master of the High Court may direct or approve, the
amount of any claims in respect of the trust account;
(e) to bring or defend proceedings in any court arising out of any claim in respect of the
trust account;
(f) to draw up and lodge with the Master of the High Court an account reflecting the as-
sets and liabilities of the trust account, and allocation of the assets to the persons
who have claims in respect of the trust account;
(g) subject to the directions of the Master of the High Court, to distribute the assets of
the trust account among the persons who have claims in respect of the trust account;
(h) to pay any balance in the trust account, after all claims have been satisfied, to such
person as the Master of the High Court may direct;
(i) to do such other things to ensure the proper distribution of the trust account as the
Master of the High Court may specify.
(3) A curator bonis appointed in terms of subsection (2) of section 16 of the Act to con-
trol and administer a trust account may receive from the trust account such remuneration as
the Master of the High Court may fix.
Protocols and registers

6.(1) Every notary public who effects any transaction pertaining to his practice as such
shall record the transaction in the appropriate protocol and register which he shall keep and
maintain for the purpose.
177
(2) At least once in each calendar year, when required by the Council of the Society to
do so, every notary public practising as such in Zimbabwe shall submit to the secretary of the
Society a certificate signed by himself to the effect that the protocol and register kept by him
have been properly kept in accordance with the obligations of a notary public.
(3) The Council of the Society shall have the right, without notice, and at all reasonable
times, through its duly authorised agents, to inspect the protocol and register of any notary
public in Zimbabwe, for the purpose of ascertaining whether or not the protocol and register
are being properly kept in accordance with the obligations of a notary public.
(4) The Council of the Society may give directions as to the disposal and custody of pro-
tocols and registers of deceased or retired notaries public or of notaries public who have been
struck off the register or suspended from practice.
Duplicate or corrected registration certificates

7.(1) The Registrar shall, on payment of a fee of fifty dollars, issue to a registered legal
practitioner, notary public or conveyancer a duplicate copy of any certificate of registration is-
sued by him to that legal practitioner, notary public or conveyancer in terms of section 3 of
the Act.
(2) A duplicate copy of a registration certificate issued in terms of subsection (1) shall be
in the same form as an original registration certificate, but shall bear the words “Duplicate
copy” written prominently on its face.
(3) The Registrar may, on payment of a fee of fifty dollars and on being satisfied that the
particulars specified in the original are, or have become, incorrect, issue to a registered legal
practitioner, notary public or conveyancer a corrected copy of any certificate of registration
issued by him to that legal practitioner, notary public or conveyancer in terms of section 3 of
the Act.
(4) The Registrar shall record in the Register the date on which he issues any duplicate
or corrected copy of a certificate of registration in terms of this section.
Inspection of Register
8. Any person may, during ordinary office hours, inspect the Register at the office of the
Registrar, and may make copies of any entry in it.
Notice of deletion from Register

9. A registered legal practitioner, notary public or conveyancer who applies in terms of
subsection (1) of section 6 of the Act for the deletion of his name from the Register shall give
not less than twenty-one days’ notice of the application to the secretary of the Society.
Repeals and savings

10. (Omitted)
FIRST SCHEDULE (Sections 3 and 7)

FORM OF REGISTRATION CERTIFICATES
PART I
CERTIFICATE OF REGISTRATION OF LEGAL PRACTITIONER
This is to certify that …………………………………………… was, on the ….… day of
………………………………….., 19………… registered as a legal practitioner in terms of
the Legal Practitioners Act [Chapter 27:07] and is accordingly entitled to all the rights and
privileges and is charged with all the responsibilities attaching to the practice of the profes-
sion of a legal practitioner.
178
Registrar of the High Court of Zimbabwe
Date:
[Seal of the High Court]
PART II
CERTIFICATE OF REGISTRATION OF NOTARY PUBLIC
………………………………….., 19………… registered as a notary public in terms of the
Legal Practitioners Act [Chapter 27:07] and is accordingly entitled to all the rights and priv-
ileges and is charged with all the responsibilities attaching to the practice of the profession of
a notary public.

Date:
PART III
CERTIFICATE OF REGISTRATION OF CONVEYANCER
………………………………….., 19………… registered as a conveyancer in terms of the
Legal Practitioners Act [Chapter 27:07] and is accordingly entitled to all the rights and priv-
ileges and is charged with all the responsibilities attaching to the practice of the profession of
a conveyancer.

Date:
179
APPENDIX 4: LEGAL PRACTITIONERS (CODE OF CONDUCT) BY-LAWS
The Legal Practitioners (Code of Conduct) By-laws, 2018, were published
as a Schedule to SI 37 of 2018. The Table of Contents below did not appear in
the original by-laws and has been inserted for ease of reference.
TABLE OF CONTENTS
By-law
Preamble
1. Title.
2. Interpretation.
3. Unprofessional, dishonourable or unworthy conduct:
(1) Touting
(2) Advertising
(3) Improper publicity
(4) Mentioning legal qualifications in connection with practice as auctioneer
(5) Suggesting one is associated in legal practice with non-lawyer
(6) Contravening Act or regulations
(7) Improperly withholding payment of trust money
(8) Handling client’s property dishonestly, negligently or unlawfully
(9) Failing to protect client’s property
(10) Intermingling own funds with those of client
(11) Engaging in champerty
(12) Allowing non-lawyer to benefit from carrying out work reserved for lawyer
(13) Allowing non-lawyer to receive remuneration for work done by lawyer, or benefit-
ting from business solicited or facilitated by non-lawyer
(14) Sharing profits of legal practice with employee who is non-lawyer
(15) Including non-lawyer’s charges in lawyer’s bill of costs
(16) Undermining professional independence
(17) Hindering Law Society from investigating unprofessional, dishonourable or un-
worthy conduct
(18) Keeping practice accounts together with accounts of non-legal business
(19) Keeping office or branch which is not supervised by lawyer
(20) Engaging in conduct prejudicial to legal profession or administration of justice
(21) Showing lack of integrity
(22) Allowing professional independence to be compromised
(23) Treating other lawyers with discourtesy, disrespect or unfairness
(24) Supplying false information to Council
(25) Failing to report criminal or certain other improper conduct to Council
(26) Failing to report insolvency or director’s disqualification order to Council
180
(27) Failing to comply with Council’s guidelines on practice administration, profes-
sional development or complaints procedures
(28) Failing to ensure proper administration of practice and keeping of accounts, or to
respond to requests from Council or Compensation Fund, or allow Council to in-
spect practice
(29) Not having valid practising certificate
(30) Failing to ensure practice is conducted competently with appropriate resources
(31) Failing to train pupils
(32) Failing to ensure equality of opportunity in practice or firm
(33) Taking on work which one is unable to do or in which one will be professionally
embarrassed
(34) Misleading client or failing to keep client informed re his or her affairs
(35) Failing to treat client fairly or to protect client’s interests
(36) Failing to ensure that person giving instructions for client has authority to do so
(37) Failing to ensure that client’s instructions reflect client’s true wishes
(38) Misleading client as to fee or charge payable
(39) Charging fee higher than quoted fee
(40) Over-reaching
(41) Failing to pay fee or disbursement due to correspondent lawyer
(42) Failing to account for profits made in course of client’s business
(43) Telling third party details of account sent to client
(44) Breaching confidentiality
(45) Conflict of interest: advising client to invest in business in which one has interest
(46) Using client’s power of attorney to gain benefit for oneself
(47) Representing conflicting interests
(48) Renouncing agency without good cause
(49) Double-dating
(50) Drafting document containing statement or allegation unsupported by instructions
(51) Encouraging witness to give untruthful evidence
(52) Communicating with witness who is giving evidence
(53) Circumventing other party’s lawyer when communicating with other party in litig-
ation
(54) Committing other act deemed by Council, Tribunal or court to be unprofessional,
dishonourable or unworthy
PREAMBLE
WHEREAS section 23 of the Act prescribes certain acts and omissions which constitute
unprofessional, dishonourable or unworthy conduct on the part of a registered legal practi-
tioner in the course of his or her practice as such or as a notary public or conveyancer;
181
AND WHEREAS the said section provides that the said prescription shall not preclude
the Society from prescribing by-laws, further acts which shall constitute such unprofessional,
dishonourable or unworthy conduct;
AND WHEREAS section 63(2)(k) of the Act provides that by-laws may be made by the
Society if adopted by a majority of members present personally or by proxy at a General
Meeting of the Society, defining acts which constitute unprofessional, dishonourable or un-
worthy conduct on the part of legal practitioners;
AND WHEREAS the Council resolved on the 2nd of December, 2013, to prescribe fur-
ther acts and omissions which will constitute unprofessional, dishonourable and unworthy
conduct, to consolidate these with the acts and omissions contained in section 23 of the Act in
order to produce a comprehensive code and convert such code into by-laws:
NOW, THEREFORE, it is provided that unprofessional, dishonourable or unworthy con-
duct on the part of a registered legal practitioner, a notary public or a conveyancer shall in -
clude, but not to be limited to, any of the following acts or omissions—
Title
1. These by-laws may be cited as the Legal Practitioners (Code of Conduct) By-laws,
2018.
Interpretation
2. In this code—
“Act” means the Legal Practitioners Act [Chapter 27:07];
“by-laws” means the by-laws made by the Society in terms of section 63 of the Act and
contained in Statutory Instrument 314 of 1982, together with any further by-laws
which are published by the Minister in a statutory instalment;
“client” means a person who avails himself or herself of the services of a legal practi-
tioner, notary public or conveyancer and whose mandate has been accepted by such
legal practitioner, notary public or conveyancer;
“code” means this code of conduct;
“complaint” means an allegation by any person or the Council of unprofessional, dishon-
ourable or unworthy conduct on the part of a legal practitioner, notary public or con-
veyancer;
“compensation Fund” means the Law Society Compensation Fund which is referred to in
section sixty-four of the Act;
“conveyancer” means an individual whose name appears as such in the Register of Legal
Practitioners, Notaries Public and Conveyancers which is kept in terms of section 3 of
the Act;
“council” means the Council of the Law Society of Zimbabwe as constituted in terms of
section 44 of the Act;
“court” means any court or tribunal of competent civil or criminal jurisdiction and an ar -
bitration, conciliation or disciplinary authority before whom a legal practitioner ap-
pears, or may appear, as a legal practitioner;
“criminal offence” means any criminal offence which is committed either within or out -
side Zimbabwe and which constitutes an offence in terms of the laws of Zimbabwe;
“disciplinary Tribunal” means the Disciplinary Tribunal which is established in terms of
“instructions” means instructions or directions in any form, including a brief, which are
given to a legal practitioner, notary public or conveyancer for the performance of his
or her services in his or her capacity as such, whether in a contentious or non-conten-
tious matter, and “instructed” shall be construed accordingly;
182
“legal practitioner” means an individual whose name appears as such in the Register of
Legal Practitioners, Notaries Public or Conveyancers which is established in terms of
“legal services” includes the legal advice to and the legal frame work performed for a cli-
ent by a legal practitioner;
“notary public” means an individual whose name appears as such in the Register of Legal
Practitioners, Notaries Public and Conveyancers which is established in terms of sec-
tion 3 of the Act;
“practising certificate” means any practising certificate which is issued in terms of section
75 of the Act and includes a limited practising certificate;
“register” means the Register of Legal Practitioners, Notaries Public and Conveyancers,
as referred to in section 3 of the Act;
“registered legal practitioner” means a legal practitioner whose name has been entered in
the register;
“Regulations” means regulations made by the Minister in terms of section 87 of the Act;
“serious criminal offence” means an offence involving dishonesty, deception, violence or
force for which upon conviction the sentence may be one of imprisonment without the
option of a fine;
“society” means the Law Society of Zimbabwe referred to in section 51 of the Act.
3. Unprofessional, dishonourable or unworthy conduct

(1) Touting, subject to such guidelines as are duly published by the Council from time to
time.
(2) Advertising, subject to such guidelines as are duly published by the Council from
time to time.
((3) Engaging in or allowing publicity of his or her practice or firm in disregard of such
guidelines as are duly published by the Council from time to time.
(4) In the case of a legal practitioner, notary public or conveyancer who also carries on
the business of an auctioneer, referring to or mentioning any of his or her professional quali-
fications on his or her advertisements in respect of such business.
(5) Allowing his or her name, either with or without any of his or her qualifications as a
legal practitioner, notary public or conveyancer, to appear by way of advertisement, notifica-
tion or information upon any business letterheads, account or other documents whatsoever in
conjunction with the name of an unregistered person and in such a manner as to convey, or be
likely to convey, the impression that he or she is associated in the legal profession with that
person.
(6) Contravening any provision of the Act or any regulations made thereunder.
(7) Withholding the payment of trust money without lawful cause.
(8) Handling any money, securities or other assets received for a client or in the course of
his or her practice dishonestly, negligently or in a manner other than is required by law re -
garding the handling thereof.
(9) Failing or neglecting to protect a client’s money, securities or assets where such pro-
tection could reasonably have been expected.
183
(10) Intermingling his or her funds with those of any of his or her clients.
(11) Champerty, subject to the provisions of Part IVA of the Act and any regulations
made thereunder.
(12) In any way assisting, allowing or enabling an unregistered person to charge, recover
or receive any fee or derive any remuneration or benefit in respect of or in connection with
the preparation or execution of any document or the performance of any professional work
which only a registered legal practitioner, notary public or conveyance, as the case may be, is
qualified by law to prepare, execute or perform, or in any way conniving at any arrangement,
agreement or understanding whatsoever in terms of which any such fee, remuneration or be-
nefit shall be charged, recovered or received by any such unregistered person.
(13) Being party to any contract or arrangement with an unregistered person, the direct or
indirect result of which is either to enable that person to receive any fees due to the legal prac -
titioner, notary public or conveyancer or other remuneration for the services provided by him
or her in such capacity, or to secure for the legal practitioner, notary public or conveyancer
the benefit of professional business solicited, facilitated or recommended by the unregistered
person.
(14) Remunerating an employee who is an unregistered person by way of a share in the
profits of his or her practice or firm.
(15) Assisting any unregistered person to recover that person’s charges for services
rendered, by including such charges in any bill of costs or account of charges rendered by him
or her without fully disclosing this in such bill or account.
(16) Being party to any contract or arrangement with an unregistered person, the effect of
which is to place the legal practitioner under such control on the part of that person as may in-
terfere with his or her professional independence.
(17) Being party to any contract or arrangement with any person which would or might
preclude the Society from investigating any actual or potential unprofessional, dishonourable
or unworthy conduct.
(18) Keeping the accounts of his or her practice or firm in or as part of the books of ac -
count utilised in connection with any business in which he or she may be interested jointly
with an unregistered person.
(19) Opening or maintaining any office or branch of his or her practice or firm which is
not under the continuous personal supervision of a registered legal practitioner.
(20) Engaging in conduct that is likely either to diminish public confidence in the legal
profession and or the administration of justice or to bring the legal profession into disrepute.
(21) Failing or neglecting to act with integrity, whether in the course of his or her prac-
tice or otherwise.
(22) Allowing his or her professional independence to be compromised.
(23) Failing or neglecting to treat professional colleagues with courtesy, respect and fair-
ness.
(24) Knowingly supplying false information to the Council.
(25) Failing or neglecting to report promptly to the Council if—
(a) he or she is charged with a serious criminal offence;
(b) he or she is convicted of any serious criminal offence and is sentenced to imprison-
ment without the option of a fine; or
(c) he or she is convicted of a disciplinary offence by another professional body.
(26) Failing or neglecting to report promptly to the Council if—
(a) insolvency proceedings are initiated against him or her;
(b) director’s qualification proceedings are initiated against him or her;
184
(c) an insolvency order or director’s disqualification order is made against him or her;
or
(d) he or she enters into an individual voluntary arrangement with his or her own credit-
ors.
(27) Failing or neglecting to comply with guidelines duly issued by the Council regard-
ing—
(a) the administration of practices or firms;
(b) professional development and training;
(c) creating a complaints procedure which is available to any client on request dealing
with complaints.
(28) Failing or neglecting to ensure that—
(a) his or her practice of firm is efficiently and properly administered, including in rela-
tion to due payment for practising certificates and other lawfully-imposed fees and
levies, having regard to the nature of his or her practice;
(b) proper records and books of account are kept in relation to his or her practice or
firm;
(c) he or she promptly furnishes any comments, reports or documents in relation to his
or her practice or firm which the Council or the Compensation Fund may require;
(d) the Council or any agent appointed by it may inspect forthwith and at any time
which is reasonable, having regard to the circumstances and the urgency of the mat-
ter, any premises from which he or she, she or any associate practises or is believed
to practise, the arrangements made for administering his or her practice or her prac-
tice or firm and any records relating to such practice or to the administration of his
or her firm or practice.
(29) Failing or neglecting to ensure that he or she has a valid practising certificate at all
material times.
(30) Failing or neglecting as either the sole practitioner or a partner of his or her practice
or firm to ensure that the affairs of his or her practice or firm are administered competently
and efficiently and that the practice or firm is appropriately staffed, resourced and equipped.
(31) Failing or neglecting as either the sole practitioner or a partner of his or her practice
or firm to ensure that proper arrangements are made for the training of any persons serving
pupillage in his or her practice of firm.
(32) Failing or neglecting to run his or her practice or firm or to carry out his or her role
in such practice or firm in a way that encourages both equality of opportunity, regardless of
race, ethnic origin, gender or physical disability, and respect for diversity.
(33) Accepting instructions in a manner in which he or she becomes professionally em -
barrassed, for example—
(a) if, having regard to his or her other professional commitments, he or she will be un-
able to perform the services required or will not have adequate time and opportunity
to prepare for and provide for such services;
(b) if his or her instructions seek to limit his or her ordinary authority or discretion in
the conduct of proceedings in Court or to require him or her to act otherwise than in
conformity with law or with the provisions of this code;
(c) if the matter is one in which he or she has reason to believe that he or she is likely to
be a witness or in which, whether by reason of any connection with the client, the
Court, a member of the Court or otherwise, it will be difficult for him or her to
maintain his or her professional independence or in which the administration of
justice might be or appear to be prejudiced;
185
(d) if there is, or appears to be a conflict either between the interests of the legal practi-
tioner and his or her client or between the interests of any two or more of his or her
clients, unless consent is given by the client or clients to his or her accepting the in -
structions;
(e) if there is a risk which is or should reasonably be appreciated by the legal practi-
tioner that information which is confidential to a client or former client may be com-
municated or used for the benefit of anyone other than that client or former client
which may he used for the benefit of anyone other than that client or former client
without his or her consent;
(34) Failing or neglecting—
(a) to give a client a candid opinion in relation to the client’s matter.
(b) to keep a client reasonably informed about the status of the client’s matter.
(c) to comply promptly with a client’s reasonably necessary to permit the client to make
informed decisions.1
(35) Failing or neglecting to treat a client fairly or to take reasonable steps to preserve or
protect a client’s best interests.
(36) Acting for a client when instructions are given by someone else or acting for two or
more clients when instructions are given by only one of them, unless he or she is satisfied that
the person providing the instructions has the proper authority.
(37) Acting for a client when there are reasonable grounds for believing that the instruc-
tions are affected by incapacity, duress or undue influence, without satisfying himself or her-
self that the instructions in fact represent the client’s true wishes.
(38) Pitching an estimated or fixed fee or charge without making it clear that an addi -
tional fee or charge may be payable, if that is the case.
(39) Pitching an estimated fee at an unrealistically low level and subsequently charging a
substantially higher fee.
(40) Charging a fee which is materially in excess of that which would be fair and reason-
able in respect of the services performed.
(41) Failing or neglecting to pay timeously and in full any fee or disbursement due by
him or her to a correspondent or instructing legal practitioner.
(42) Failing or neglecting to properly account to a client for any financial benefit that he
or she receives as a result of providing his or her services to or on behalf of such client.
(43) Disclosing details of an account sent to a client to third party (such as debt factoring
company in relation to the collection of book debts), without the consent of the client.
(44) Failing to observe the principle of confidentiality, whether or not the relationship of
the legal practitioner with his or her client is still in existence.
(45) Advising a client to invest in a business in which he or she has an interest, where his
or her ability to provide impartial advice is affected.
(46) If he or she holds a power of attorney for client, using that power to gain a benefit
for himself or herself when, if acting in his or her professional capacity, he or she would not
have been prepared to allow that benefit to a third party.
(47) Representing conflicting interests in litigation matters or representing conflicting in-
terests in non-litigation matters without first declaring the position to all interested parties and
obtaining their consent.
(48) Ceasing to act for a client or renouncing agency on behalf of a client without good
cause and without having first explained to the client his or her reasons, or ceasing to act or
renouncing agency in such a manner as to cause undue and unexpected prejudice to the client,
1
It is not clear what this subsection means; clearly some words have been accidentally omitted.
186
due regard being had to such prejudice as would otherwise be caused to the legal practitioner.
(49) Returning a brief which he or she has accepted and for which a fixed date has been
obtained or breaking any other engagement to supply legal services in order to enable him or
her to attend or fulfil another engagement of any kind, except with the consent of the client or
other justifiable excuse (in which event the client shall be notified as soon as possible).
(50) Drafting any statement, affidavit, notice of appeal or other document which contains
—
(a) any statement of fact or contention which is not supported by the maker thereof or
the instructions of his or her client;
(b) any allegation of dishonesty unless he or she has clear instructions to make such al-
legation or has before him or her reasonably credible material which as it stands es-
tablishes a prima facie case of fraud;
(c) in the case of a witness statement or affidavit, any statement of fact other than the
evidence which, in substance and according to his or her instructions, he or she reas-
onably believes the witness would make if the evidence contained in the statement
or affidavit were being given orally; but nothing in this paragraph shall prevent a
legal practitioner, notary public or conveyancer from drafting a document contain-
ing specific factual statements or contentions which are included on the basis that
their accuracy is subject to confirmation by the maker of the statement or affidavit.
(51) Encouraging a witness, including his or her client, to give evidence which is un-
truthful or which is not the whole truth.
(52) Communicating about anything relating to a case on trial with a witness, whether or
not the witness is that of his or her client, after the witness has begun to give evidence and be-
fore the witness’s evidence has been concluded, without the consent of the Court or the op -
posing party.
(53) Communicating about anything relating to a case on trial, dispute or any other mat -
ter with the opposing party, without the consent of that patrty’s legal practitioner.
(54) Such other acts or omissions, not being specified above or in subsequent by-laws, as
may in the discretion of the Council, a Disciplinary Tribunal or a Court be determined to con -
stitute unprofessional, dishonourable or unworthy conduct on the part of a registered legal
practitioner, notary public or conveyancer.
187
APPENDIX 5: CONTINGENCY FEE AGREEMENTS
The Legal Practitioners (Contingency Fee Agreements) Regulations, 2014, were
published in SI 154 of 2014
Section
1. Title.
2. Application.
3. Interpretation.
4. Contingency fee agreements.
5. Prior information.
6. Requirements.
7. Matters not to be included.
8. Invalidity.
9. Settlement.
10. Review of contingency fee agreement by the Law Society of Zimbabwe.
IT is hereby notified that the Minister of Justice, Legal and Parliamentary Affairs has, in
terms of section 87 of the Legal Practitioners Act [Chapter 27:07] and after consultation with
the Chief Justice and the President of the Law Society of Zimbabwe, made the following reg -
ulations:–
Title
1. These regulations may be cited as the Legal Practitioners (Contingency Fee Agree-
ments) Regulations, 2014.
Application
2. These regulations shall apply to all contingency fee agreements that are entered into
on or after the date on which these regulations are published.
Interpretation
3. In these regulations—
“client” means the person who has instructed a legal practitioner to provide legal services;
“contingency fee” means the fee due to a legal practitioner in terms of a contingency fee
agreement;
“contingency fee agreement” means an agreement entered into between a registered legal
practitioner and his or her client in terms of which no fee, other than court fees or dis -
bursements, is payable by the client for the legal practitioner’s services in connection
with any proceedings unless the proceedings result in a decision or settlement in the
client’s favour, wholly or partially;
“expenses” means the disbursements incurred by a legal practitioner, including the cost of
obtaining an expert’s report;
“Law Society of Zimbabwe” means the corporate body referred to in section 51 of the
Legal Practitioners Act [Chapter 27:07];
“legal practitioner'” means a legal practitioner who is registered in terms of section 5 of
the Legal Practitioners Act [Chapter 27:07];
“normal fee”, in relation to work performed by a legal practitioner in connection with pro-
188
ceedings, means the fee, excluding expenses, that he or she would reasonably have
charged his or her client on a legal practitioner and client basis in the absence of a
contingency fee agreement;
“proceedings” means any proceedings before any court of law, tribunal, arbitrator or any
functionary having the powers of a court of law or the power to issue, grant or recom -
mend the issuing of any licence, permit or other authorisation for the performance of
any act or the carrying on of any business or other activity, but excludes any criminal
proceedings;
“the Act” means the Legal Practitioners Act [Chapter 27:07].
Contingency fee agreements

4. Subject to the Act and these regulations or any other law, a legal practitioner may
enter into a contingency fee agreement with a client regarding the legal services that he or she
provides to his or her client in connection with proceedings if in his or her opinion there is a
reasonable prospect of success in such proceedings.
Prior information
5. Brief summaries of the following matters shall be provided by the legal practitioner to
his or her client in writing before a contingency fee agreement is entered into, and the agree-
ment shall reflect the fact that these summaries have been provided—
(a) other possible ways of financing or dealing with the client’s litigation, for example,
through legal aid or trade union representation; and
(b) the customary procedure for determining the costs payable to the legal practitioner
in the absence of a contingency fee agreement; and
(c) the fact that the fee payable by the client may be higher than the normal fee; and
(d) the amounts that might be spent on expenses; and
(e) when expenses become payable; and
(f) the customary rule that in the event of the client being unsuccessful in the proceed-
ings he or she might become liable to pay the taxed costs of his or her opponent in
the proceedings, in accordance with such scale as is fixed by the court.
Requirements
6.(1) A contingency fee agreement shall be recorded in writing in a document which is
signed by the legal practitioner and his or her client and a copy shall be given to the client
upon signature.
(2) A contingency fee agreement shall specify—
(a) the proceedings to which the agreement relates;
(b) what will constitute either success or partial success in the matter;
(c) the value of any award that might be made in favour of the client in a matter where
the subject of claim brought by or against the client does not sound in money;
(d) the contingency fee payable by the client in the event of either success or partial
success;
(e) how the client or the legal practitioner may prematurely terminate the effect of the
agreement;
(f) the consequences of premature termination for each of them;
(g) the basis upon which the legal practitioner’s premature termination fee is to be de-
termined;
189
(h) the client's right, if any, to make critical decisions regarding how the matter is to be
conducted;
(i) the client's right to withdraw from the agreement within seven days after his or her
date of signature thereof, by giving written notice to the legal practitioner, in which
event the legal practitioner shall be entitled to recover from the client the contin-
gency fee (if success or partial success has been achieved within the period of seven
days) or the fees and expenses incurred in protecting or pursuing the interests of the
client during and immediately following such period, such fees being determined on
a legal practitioner and client basis (if no such success has been achieved);
(j) the need for any amendments to or replacements of the agreement to be recorded in
writing in a document which is signed by the parties.
(3) A contingency fee which is to be determined on the basis of applying a premium to
the normal fee that would be charged by the legal practitioner shall not exceed such normal
fee by more than 200 per cent.
(4) A contingency fee which is to be determined on the basis of a percentage of the total
amount or value of any award in favour of the client shall not exceed 25 per cent of such
amount or value.
Matters not to be included

7. A legal practitioner shall not include in a contingency fee agreement any provision
that—
(a) requires the legal practitioner’s consent before a claim may be abandoned, discon-
tinued or settled on the instructions of the client; or
(b) prevents the client from terminating the effect of the agreement; or
(c) prevents the client from changing legal practitioners.
Invalidity
8. No part of a contingency fee agreement that fails to comply with the provisions of
these regulations shall be valid or enforceable.
Settlement
9.(l) An offer of settlement made to a party who has entered into a contingency fee
agreement may only be accepted after the client gives his or her legal practitioner a written in-
struction to accept the offer, in which he or she acknowledges prior receipt of a certificate
from his or her legal practitioner which provides—
(a) the full terms of the proposed settlement; and
(b) an estimate of the amount or other relief that might be obtained by taking the matter
to trial or finality; and
(c) an assessment of the client’s prospects of success or failure if the matter is taken
further; and
(d) a comparison of the legal practitioner’s fees that will be incurred if the matter is
settled with his or her fees that would be incurred if the matter were taken further;
and
(e) the reasons why the proposed settlement is recommended, if this is the case.
(2) Any settlement reached where a contingency fee agreement has been entered into
shall be made an order of court if the matter was before a court.
Review of contingency fee agreement by Law Society of Zimbabwe
190
10.(1) A client may refer a contingency fee agreement or the fee claimed thereunder for
review by the Council of the Law Society of Zimbabwe.
(2) On review, the Law Society of Zimbabwe, through its Council may set aside or
modify, in whole or in part, any provision of the agreement or any fee claimed thereunder
which, in its reasonable opinion, is unconscionable or unreasonable or does not comply with
the provisions of these regulations:
Provided that any aggrieved party shall have the right to appeal against or refer the Coun-
cil’s decision for review by a competent court.
191
APPENDIX 6: DISCIPLINARY TRIBUNAL REGULATIONS
The Legal Practitioners (Disciplinary Tribunal) Regulations, 1981, were pub-
lished in SI 580 of 1981
Section
1. Title.
2. Interpretation of terms.
PART I
INQUIRIES
3. Application.
4. Application to be considered by Disciplinary Tribunal.
5. Counter-statement by respondent.
6. Reply to counter-statement.
7. Decision as to holding of inquiry.
8. Fixing of time and place of inquiry.
9. Calling of witnesses.
10. Right of appearance.
11. Proceedings of Disciplinary Tribunal at inquiry.
PART II
GENERAL
12. Publication of decision or action of Disciplinary Tribunal.
13. Application by insolvent or former insolvent for removal of suspension.
14. Remuneration and allowances of members of Disciplinary Tribunal.
SCHEDULE: Remuneration and Allowances of Members of Disciplinary Tribunal.
IT is hereby notified that the Minister of Justice and Constitutional Affairs has, in terms
of section 64 of the Legal Practitioners Act, 1981,1 made the following regulations:‒
Title
1. These regulations may be cited as the Legal Practitioners (Disciplinary Tribunal) Reg-
ulations, 1981.
Interpretation of terms
2. In these regulations―
“applicant” means the Society or any other person who makes an application;
“application” means an application to the Disciplinary Tribunal to hold an inquiry in
terms of Part IV2 of the Act;
“chairman” means the chairman of the Disciplinary Tribunal;
“respondent” means a legal practitioner in respect of whom an inquiry is held.
PART I
INQUIRIES
Application
3.(1) An application shall be made in writing, alleging that―
1
Now section 87 of Chapter 27:07.
2
Now Part V of Chapter 27:07.
192
(a) the respondent has been guilty of unprofessional, dishonourable or unworthy con-
duct; or
(b) it would be contrary to the public interest to allow the respondent to continue to
practise as a legal practitioner because of mental or physical disability or addiction
to intoxicating liquor or drugs;
as the case may be, and shall be signed by the applicant.
(2) An application shall contain a summary of evidence sufficient to inform the re-
spondent of all material facts upon which the applicant relies, and be accompanied, where ap -
propriate, by a list of witnesses whom the applicant proposes should be called by the Discip-
linary Tribunal, should the Disciplinary Tribunal decide to hold an inquiry, together with a
brief summary of the evidence of each witness.
(3) An application shall be lodged with the Registrar, together with five copies thereof.
(4) On receipt of an application lodged in terms of subsection (3) the Registrar shall
forthwith―
(a) forward the original and two copies thereof to the chairman; and
(b) where the applicant is not the Society, serve a copy thereof on the secretary of the
Society.
Application to be considered by Disciplinary Tribunal

4. After considering an application forwarded in terms of subsection (4) of section 3,
the Disciplinary Tribunal―
(a) may reject the application and inform the Registrar accordingly; or
(b) shall, if it does not reject the application, direct the Registrar to arrange for the ser-
vice of a copy of the application on the respondent and to call for any counter-state -
ment which he may wish to make to be lodged with the Registrar within twenty-one
days;
and the Registrar shall advise the applicant and, if the applicant is not the Society, the secret -
ary of the Society of the decision of the Disciplinary Tribunal in terms of this section.
Counter-statement by respondent
5.(1) The respondent may make a counter-statement in writing, setting forth his replies
to the allegations contained in the application, which counter-statement shall be accompanied,
where appropriate, by a list of witnesses whom the respondent proposes should be called by
the Disciplinary Tribunal, should the Disciplinary Tribunal decide to hold an inquiry, together
with a brief summary of the evidence of each witness.
(2) A counter-statement in terms of subsection (1) shall be―
(a) signed by the respondent; and
(b) lodged, together with five copies thereof, with the Registrar within twenty-one days
of the date of the service of the application on him or within such additional period
as the chairman may approve in writing.
(3) On receipt of a counter-statement lodged in terms of subsection (2), the Registrar
shall forthwith―
(b) serve a copy thereof on the applicant and, if the applicant is not the Society, on the
secretary of the Society.
Reply to counter-statement
6.(1) On receipt of a counter-statement served in terms of subsection (3) of section 5, the
applicant may make a reply in writing, setting forth his replies to any matters contained in the
193
counter-statement, which reply shall be accompanied, where appropriate, by a list of further
witnesses whom the applicant, in the light of any allegations made in the counter-statement,
proposes should be called by the Disciplinary Tribunal.
(2) A reply in terms of subsection (1) shall be―
(a) signed by the applicant; and
(b) lodged, together with five copies thereof, with the Registrar within fourteen days of
the date of the service of the counter-statement on him or within such additional
period as the chairman may approve in writing.
(3) On receipt of a reply lodged in terms of subsection (2), the Registrar shall forth-
with―
(b) serve a copy thereof on the respondent and if the applicant is not the Society, on the
secretary of the Society.
Decision as to holding of inquiry

7.(1) As soon as possible after―
(a) receiving a reply forwarded in terms of subsection (3) of section 6; or
(b) if no reply is made in terms of section 6, after the expiry of the period within which
it could be made; or
(c) if no counter-statement is made in terms of section 5, after the expiry of the period
within which it could be made;
as the case may be, the Disciplinary Tribunal shall consider all the documents forwarded to it
in terms of these regulations and shall decide whether or not to hold an inquiry.
(2) The Registrar shall advise the applicant and the respondent and, if the applicant is
not the Society, the secretary of the Society of the decision of the Disciplinary Tribunal in
terms of this section.
Fixing of time and place of inquiry

8. If the Disciplinary Tribunal decides in terms of section 7 to hold an inquiry, the
chairman shall set down a date, time and place at which the inquiry will be held, of which at
least fourteen days’ notice shall be given by the Registrar to the applicant and the respondent
and, if the applicant is not the Society, to the secretary of the Society:
Provided that, with the consent of both the applicant and the respondent, less than four-
teen days’ notice may be given.
Calling of witnesses
9. A subpoena for the attendance of a witness, or the production of any book or docu-
ment at an inquiry held by the Disciplinary Tribunal shall be signed by the Registrar and
served in the same manner as if it were a subpoena for the attendance of a witness in civil pro-
ceedings before the High Court.
Right of appearance
10. The applicant, the respondent and, if it is not the applicant, the Society shall have
the right to appear before the Disciplinary Tribunal at an inquiry, either personally or through
a registered legal practitioner, and to be heard by the Disciplinary Tribunal.
Proceedings of Disciplinary Tribunal at inquiry

11.(1) When holding an inquiry the Disciplinary Tribunal shall sit at such times and
places as the chairman may determine, and the inquiry may be adjourned from time to time as
the chairman thinks fit.
194
(2) Subject to the provisions of these regulations at an inquiry all questions or matters
required to be decided by the Disciplinary Tribunal shall be decided by a majority of the
members thereof.
(3) Any inquiry by the Disciplinary Tribunal shall be held in public unless all the
parties thereto have agreed that it shall be held in private.
[Subsection as amended by SI 695 of 1981]
(3a) If the Disciplinary Tribunal finds that any allegation referred to in subsection (1) of
section 3 has been proved, and does any one or more of the things specified in subsection (1)
of section 28 of the Act, the judgment of the Disciplinary Tribunal shall be open to inspection
by any member of the public on payment of such fee as is payable for the inspection of a
judgment of the High Court.
[Subsection inserted by SI 695 of 1981]
(4). The chairman shall regulate the procedure at an inquiry held by the Disciplinary
Tribunal.
(5) Without derogation from the generality of the provisions of subsection (4), at an in-
quiry the Disciplinary Tribunal may, in its discretion, accept evidence by way of affidavit.
(6) The Disciplinary Tribunal shall conduct its inquiry even though the respondent fails
or refuses to appear before the Disciplinary Tribunal or to be represented.
PART II
GENERAL
Publication of decision or action of Disciplinary Tribunal

12. Subject to the provisions of subsection (2) of section 31 of the Act, the chairman
may direct the Registrar to publish in such manner as the chairman thinks fit any findings or
decision of, or action taken by, the Disciplinary Tribunal at an inquiry.
Application by insolvent or former insolvent for removal of suspension

13. An application to the Disciplinary Tribunal by a legal practitioner in terms of sec -
tion 30 of the Act for the removal of his suspension from practice shall be made in writing
and shall―
(a) state whether or not the applicant has been rehabilitated; and
(b) contain a statement of the assets and liabilities of the applicant at the date of his se -
questration; and
(c) if the applicant has not been rehabilitated, contain such information as would be re-
quired by the High Court in an application for rehabilitation in terms of the Insolv -
ency Act [Chapter 303]3; and
(d) if the applicant has been rehabilitated, contain copies of all the papers filed in his
application for rehabilitation in terms of the Insolvency Act [Chapter 303]; and
(e) be accompanied by a report from the trustee or former trustee of the applicant.
Remuneration and allowances of members of Disciplinary Tribunal

14.(1) Members of the Disciplinary Tribunal, other than the chairman, shall be entitled to
the remuneration and allowances set out in the Schedule.
(2) Any remuneration and allowances payable in terms of subsection (1) shall be paid
from money appropriated for that purpose from the Consolidated Revenue Fund:
Provided that, if after any inquiry the Disciplinary Tribunal, in terms of subsection (5) of
section 28 of the Act, orders the legal practitioner or other person concerned to pay such re-
muneration and allowances, the remuneration and allowances shall be recoverable from such
legal practitioner or other person.
3
Now Chapter 6:04.
195
SCHEDULE (Section 14)
REMUNERATION AND ALLOWANCES OF MEMBERS OF DISCIPLINARY TRIBUNAL
The remuneration and allowances payable to a member shall be―
1. For each day, or part thereof, while a member is necessar-
ily detained on duty in respect of any inquiry $30
2.(a) Subsistence allowance per day or part thereof $2
(b) Subsistence allowance per night when overnight ac-
commodation is necessarily obtained away from the
member’s residence $10
Provided that the allowances set out in subpara-
graphs (a) and (b) may, at the discretion of the Regis-
trar or Assistant Registrar of the High Court, be in-
creased by a maximum of twenty per centum.
3. A refund of air, rail, bus and taxi fares necessarily in-
curred, or, where the member, uses a private vehicle, an
allowance at a rate per km of―
(a) where the vehicle weighs 907 kg or more or has
an engine capacity of 1 300 cm³or more
$14,3c
(b) where the vehicle weighs less than 907 kg or has
an engine capacity of less than 1 300 cm³
$11,6c
Provided that expenses payable in terms of this para-
graph shall not exceed the most economic form of trans-
port reasonably available.
196
APPENDIX 7: INTERNATIONAL BAR ASSOCIATION : INTERNATIONAL
CODE OF ETHICS
(First adopted 1956, this edition 1988)
Preamble
The International Bar Association is a federation of National Bar Associations and Law Soci-
eties with full or sustaining organisational members and individual members. Most of the full
or sustaining organisational members have established Codes of Legal Ethics as models for or
governing the practice of law by their members. In some jurisdictions these Codes are im-
posed on all practitioners by their respective Bar Associations or Law Societies or by the
courts or administrative agencies having jurisdiction over the admission of individuals to the
practice of law.
Except where the context otherwise requires, this Code applies to any lawyer of one jurisdic-
tion in relation to his contacts with a lawyer of another jurisdiction or to his activities in an -
other jurisdiction.
Nothing in this Code absolves a lawyer from the obligation to comply with such requirements
of the law or of rules of professional conduct as may apply to him in any relevant jurisdiction.
It is a restatement of much that is in these requirements and a guide as to what the Interna -
tional Bar Association considers to be a desirable course of conduct by all lawyers engaged in
the international practice of law.
The International Bar Association may bring incidents of alleged violations to the attention of
relevant organisations.
________________
Rules
1. A lawyer who undertakes professional work in a jurisdiction where he is not a full
member of the local profession shall adhere to the standards of professional ethics in
the jurisdiction in which he has been admitted. He shall also observe all ethical stand -
ards which apply to lawyers of the country where he is working.
2. Lawyers shall at all times maintain the honour and dignity of their profession. They
shall, in practice as well as in private life, abstain from any behaviour which may tend
to discredit the profession of which they are members.
3. Lawyers shall preserve independence Lawyers practising on their own account or in
partnership where permissible, shall not engage in any other business or occupation if
by doing so they may cease to be independent.
4. Lawyers shall treat their professional colleagues with the utmost courtesy and fairness.
Lawyers who undertake to render assistance to a foreign colleague shall always keep in
mind that the foreign colleague has to depend on them to a much larger extent than in
the case of another lawyer of the same country. Therefore their responsibility is much
greater, both when giving advice and when handling a case.
For this reason it is improper for lawyers to accept a case unless they can handle it
promptly and with due competence, without undue interference by the pressure of
other work. To the fees in these cases Rule 19 applies.
5. Except where the law or custom of the country concerned otherwise requires, any oral
or written communication between lawyers shall in principle be accorded a confidential
character as far as the Court is concerned, unless certain promises or acknowledge-
ments are made therein on behalf of a client.
197
6. Lawyers shall always maintain due respect towards the Court. Lawyers shall without
fear defend the interests of their clients and without regard to any unpleasant con-
sequences to themselves or to any other person. Lawyers shall never knowingly give to
the Court incorrect information or advice which is to their knowledge contrary to the
law.
7. It shall be considered improper for lawyers to communicate about a particular case dir -
ectly with any person whom they know to be represented in that case by another lawyer
without the latter’s consent.
8. A lawyer should not advertise or solicit business except to the extent and in the manner
permitted by the rules of the jurisdiction to which that lawyer is subject. A lawyer
should not advertise or solicit business in any country in which such advertising or soli-
citing is prohibited.
9. A lawyer should never consent to handle a case unless: (a) the client gives direct in-
structions, or, (b) the case is assigned by a competent body or forwarded by another
lawyer, or (c) instructions are given in any other manner permissible under the relevant
rules or regulations.
10. Lawyers shall at all times give clients a candid opinion on any case. They shall render
assistance with scrupulous care and diligence. This applies also if they are assigned as
counsel for an indigent person. Lawyers shall at any time be free to refuse to handle a
case, unless it is assigned by a competent body. Lawyers should only withdraw from a
case during its course for good cause, and if possible in such a manner that the client’s
interests are not adversely affected. The loyal defence of a client’s case may never
cause advocates to be other than perfectly candid, subject to any right or privilege to
the contrary which clients choose them to exercise, or knowingly to go against the law.
11. Lawyers shall, when in the client’s interest, endeavour to reach a solution by settlement
out of court rather than start legal proceedings. Lawyers should never stir up litigation.
12. Lawyers should not acquire a financial interest in the subject matter of a case which
they are conducting. Neither should they directly or indirectly, acquire property about
which litigation is pending before the Court in which they practise.
13. Lawyers should never represent conflicting interests in litigation. In non-litigation mat-
ters, lawyers should do so only after having disclosed all conflicts or possible conflicts
of interest to all parties concerned and only with their consent. This Rule also applies
to all lawyers in a firm.
14. Lawyers should never disclose, unless lawfully ordered to do so by the Court or as re-
quired by Statute what has been communicated to them in their capacity as lawyers
even after they have ceased to be the client’s counsel. This duty extends to their part -
ners, to junior lawyers assisting them and to their employees.
15. In pecuniary matters lawyers shall be most punctual and diligent. They should never
mingle funds of others with their own and they should at all times be able to refund
money they hold for others. They shall not retain money they receive for their clients
for longer than is absolutely necessary.
16. Lawyers may require that a deposit is made to cover their expenses, but the deposit
should be in accordance with the estimated amount of their charges and the probable
expenses and labour required.
17. Lawyers shall never forget that they should put first not their right to compensation for
their services, but the interests of their clients and the exigencies of the administration
of justice. The Lawyer’s right to ask for a deposit or to demand payment of out-of-
pocket expenses and commitments, failing payment of which they may withdraw from
the case or refuse to handle it, should never be exercised at a moment at which the cli-
ent may be unable to find other assistance in time to prevent irreparable damage being
done. Lawyers’ fees should, in the absence or non-applicability of official scales, be
198
fixed on a consideration of the amount involved in the controversy and the interest of it
to the client, the time and labour involved and all other personal and factual circum-
stances of the case.
18. A contract for a contingent fee, where sanctioned by the law or by professional rules
and practice, should be reasonable under all circumstances of the case, including the
risk and uncertainty of the compensation and subject to supervision of a court as to its
reasonableness.
19. Lawyers who engage a foreign colleague to advise on a case or to co-operate in hand-
ling it, are responsible for the payment of the latter’s charges except where there has
been express agreement to the contrary. When lawyers direct a client to a foreign col-
league they are not responsible for the payment of the latter’s charges, but neither are
they entitled to a share of the fee of this foreign colleague.
20. Lawyers should not permit their professional services or their names to be used in any
way which would make it possible for persons to practise law who are not legally au -
thorised to do so. Lawyers shall not delegate to a legally unqualified person not in their
employ and control any functions which are by the law or custom of the country in
which they practise only to be performed by a qualified lawyer.
21. It is not unethical for lawyers to limit or exclude professional liability subject to the
rules of their local Bar Association and to there being no statutory or constitutional pro-
hibitions.
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APPENDIX 8: UNITED NATIONS : BASIC PRINCIPLES ON THE ROLE OF
LAWYERS
(Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990)
Extracts from the Principles:
Duties and Responsibilities

12. Lawyers shall at all times maintain the honour and dignity of their profession as essential
agents of the administration of justice.
13. The duties of lawyers towards their clients shall include:
a) Advising clients as to their legal rights and obligations, and as to the working of the
legal system in so far as it is relevant to the legal rights and obligations of the clients;
b) Assisting clients in every appropriate way, and taking legal action to protect their in-
terests;
c) Assisting clients before courts, tribunals or administrative authorities, where appro-
priate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice,
shall seek to uphold human rights and fundamental freedoms recognised by national and in-
ternational law and shall at all times act freely and diligently in accordance with the law and
recognised standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
Guarantees for the functioning of lawyers

16. Governments shall ensure that lawyers (a) are able to perform all of their professional
functions without intimidation, hindrance, harassment or improper interference; (b) are able
to travel and consult with their clients freely both within their own country and abroad; and
(c) shall not suffer, or be threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognised professional duties, standards
and ethics.
17. Where the security of lawyers is threatened as a result of discharging their functions, they
shall be adequately safeguarded by the authorities.
…
19. No court or administrative authority before whom the right to counsel is recognised shall
refuse to recognise the right of a lawyer to appear before it for his or her client unless that
lawyer has been disqualified in accordance with national law and practice and in conformity
with these principles.
20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith
in written or oral pleadings or in their professional appearances before a court, tribunal or
other legal or administrative authority.
21. It is the duty of the competent authorities to ensure lawyers access to appropriate inform-
ation, files and documents in their possession or control in sufficient time to enable lawyers to
provide effective legal assistance to their clients. Such access should be provided at the earli-
est appropriate time.
22. Governments shall recognise and respect that all communications and consultations
between lawyers and their clients within their professional relationship are confidential.
Freedom of expression and association
200
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and
assembly. In particular, they shall have the right to take part in public discussion of matters
concerning the law, the administration of justice and the promotion and protection of human
rights and to join or form local, national or international organisations and attend their meet -
ings, without suffering professional restrictions by reason of their lawful action or their mem -
bership in a lawful organisation. In exercising these rights, lawyers shall always conduct
themselves in accordance with the law and the recognised standards and ethics of the legal
profession.
Professional associations of lawyers

24. Lawyers shall be entitled to form and join self-governing professional associations to rep-
resent their interests, promote their continuing education and training and protect their profes -
sional integrity. The executive body of the professional associations shall be elected by its
members and shall exercise its functions without external interference.
25. Professional associations of lawyers shall co-operate with Governments to ensure that
everyone has effective and equal access to legal services and that lawyers are able, without
improper interference, to counsel and assist their clients in accordance with the law and re -
cognised professional standards and ethics.
Disciplinary proceedings
26. Codes of professional conduct for lawyers shall be established by the legal profession
through its appropriate organs, or by legislation, in accordance with national law and custom
and recognised international standards and norms.
27. Charges or complaints made against lawyers in their professional capacity shall be pro-
cessed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to
a fair hearing, including the right to be assisted by a lawyer of their choice.
28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary
committee established by the legal profession, before an independent statutory authority, or
before a court, and shall be subject to an independent judicial review.
29. All disciplinary proceedings shall be determined in accordance with the code of profes-
sional conduct and other recognised standards and ethics of the legal profession and in the
light of these principles.
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APPENDIX 9: CODE OF ETHICS FOR ZIMBABWEAN JUDGES
The Judicial Service (Code of Ethics) Regulations, 2012, were published in SI 107
of 2012
PART I
PRELIMINARY
Section
1. Title.
2. Interpretation.
3. Application.
PART II
VALUES AND STANDARDS
4. Values attaching to judicial office.
SUB-PART A
INDEPENDENCE
5. Independence.
SUB-PART B
INTEGRITY
6. Integrity.
SUB-PART C
PROPRIETY
7. Propriety generally.
8. Gifts and other benefits.
9. Participation in extra-curial activities.
10. Business and financial dealings.
11. Practising law and rendering of legal advice.
12. Promotion of collective interests as judicial officer.
SUB-PART D
IMPARTIALITY
13. Impartiality generally.
14. Recusal.
15. Political engagement.
SUB-PART E
EQUALITY
16. Equality.
SUB-PART F
COMPETENCE AND DILIGENCE
17. Diligence.
18. Competence.
19. Reserved judgments.
SUB-PART G
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EFFICIENT AND EXPEDITIOUS CONDUCT OF JUDICIAL BUSINESS
20. Conduct of judicial proceedings generally.
PART III
ENFORCEMENT PROCEDURE
21. Disciplinary committee.
22. Procedure of disciplinary committee.
23. Investigation by disciplinary committee and outcome thereof.
24. Disciplinary measures.
25. Implementation and accountability.
PART IV
ETHICS ADVISORY COMMITTEE
26. Establishment of Ethics Advisory Committee.
27. Functions of Ethics Advisory Committee.
28. Interface of Ethics Advisory Committee with disciplinary committees.
PART V
TRANSITIONAL PROVISIONS
29. Transitional Provisions.
PREAMBLE
WHEREAS it is recognized that the Constitution has vested the Judicial Authority of Zimb-
abwe in the Judiciary and has further entrenched the universally accepted norm of Independ-
ence of the Judiciary;
AND WHEREAS it is recognized by the Zimbabwean judiciary that a competent, independ-
ent and impartial judiciary is an indispensable and essential ingredient for good governance
and the maintenance of the rule of law in any modern democratic society.
AND WHEREAS it is recognized that public confidence in the judicial system and in the
moral authority and integrity of the judiciary is of utmost importance in a democratic society.
AND WHEREAS it is essential that judicial officers, individually and collectively, respect
and honour the judicial office as a public trust and strive to enhance and maintain confidence
in the judicial system;
AND WHEREAS it is recognized that it is primarily the responsibility of the judiciary of Zi-
mbabwe to promote and maintain high standards of judicial conduct;
AND WHEREAS the Constitution provides for the impeachment of a judicial officer, it is
recognized that no formal complaints mechanism is provided to deal with complaints about
judicial officers falling short of impeachable conduct;
AND WHEREAS the judicial officers of the Republic of Zimbabwe adopt, individually and
collectively, this Code of Ethics to be the beacon of judicial conduct, now and in the future;
NOW THEREFORE it is hereby notified that the Minister of Justice and Legal Affairs, in
terms of sections 18 and 25 of the Judicial Service Act [Chapter 7:18] (No. 10 of 2006), has
approved the following regulations made by the Judicial Service Commission:–
PART I
PRELIMINARY
Title
1. These regulations may be cited as the Judicial Service (Code of Ethics) Regulations,
2012 (hereinafter referred to as “this Code”).
Interpretation
203
2. In this Code
“court staff” means the Secretary of the Commission and all other support staff of the Ju-
dicial Service;
“disciplinary committee” means a disciplinary committee appointed under Part III;
“family member” or “associate”, in relation to a judicial officer, means either of both of
the following , as may be appropriate to the context—
(a) any member of the judicial officer’s family, that is, the judicial officer’s spouse,
son, daughter, son-in-law or daughter-in-law or any other close relative;
(b) any friend of the judicial officer, being a person with whom the judicial officer
interacts socially on a regular or frequent basis, or a person to whom the judicial
officer is emotionally close, and includes a cohabitant;
(c) any person the nature of whose social, business or other association with the ju-
dicial officer may, in certain contexts, be regarded by any fair-minded person as
promotive of potential conflict between the judicial officer’s private interests and
judicial duties;
“head of court or division concerned” means any of the following, as may be appropriate
—
(a) the Chief Justice;
(b) the Judge President;
(c) the Senior President of the Labour Court;
(d) the Senior President of the Administrative Court;
(e) the judicial officer who is the head of any division of the foregoing courts;
“immaterial grounds” in relation to equality provided for in section 9 includes but is not
limited to, race, colour, gender, religion, national origin, disability, age, marital status,
social and economic status, and other like causes;
“judicial officer” means any of the following, whether appointed in a substantive or acting
capacity—
(a) the Chief Justice;
(b) the Deputy Chief Justice and other Judges of the Supreme Court;
(c) the Judge President and the other Judges of the High Court;
(d) the Senior President of the Labour Court and other Presidents of the Labour
Court;
(e) the Senior President of the Administrative Court and other Presidents of the Ad-
ministrative Court;
Application
3.(1) This Code applies to every judicial officer.
(2) For the avoidance of doubt it is declared that no minimum standard prescribed in this
Code shall be taken to derogate from the highest standards of ethics and propriety expected of
judicial officers
PART II
Values attaching to judicial office

4. Every judicial officer shall, individually and collectively, uphold, maintain and pro-
mote the following values attaching to judicial office, as further elaborated in this Part—
204
(a) personal and institutional independence; and
(b) integrity; and
(c) propriety, and the appearance of propriety; and
(d) equality, that is, equal treatment of all before the courts; and
(e) impartiality, not only in respect of particular decisions but also in respect of the pro-
cess by which any decision is made; and
(f) competence and diligence.
SUB-PART A
INDEPENDENCE
Independence
5.(1) A judicial officer shall uphold the independence of the judiciary and the authority
of the courts and shall, in keeping with his or her judicial oath, perform all duties without fear
or favour.
(2) A judicial officer shall at all times exhibit and promote high standards of judicial
conduct in order to foster public confidence, which is universally accepted as a fundamental
ingredient to the maintenance of judicial independence.
(3) A judicial officer shall be faithful to and maintain professional competence in the
law, and shall not be swayed by partisan interests, public clamour or fear of criticism.
SUB-PART B
INTEGRITY
Integrity
6.(1) A judicial officer shall ensure that his or her conduct, in and outside court, is above
reproach in the view of reasonable, fair-minded and informed persons.
(2) A judicial officer shall not allow family, social, political, religious or other like rela-
tionships to influence his or her judicial conduct or judgment.
(3) A judicial officer shall participate in establishing, maintaining and enforcing high
standards of conduct, and shall personally observe those standards, so that the integrity of the
judiciary may be preserved.
SUB-PART C
PROPRIETY
Propriety generally
7.(1) A judicial officer shall avoid impropriety and the appearance of improper beha-
viour in all of his or her activities, in and outside court, and shall avoid any conduct that may
result in bringing the judiciary into disrepute.
(2) As a subject of constant public scrutiny, a judicial officer must accept personal re-
strictions that might be viewed as burdensome by the ordinary citizen. In particular, a judicial
officer must conduct himself or herself in a way that is consistent with the dignity of the judi -
cial office.
(3) A judicial officer shall not use or lend the prestige of the judicial office to advance
his or her private interests or those of any of his or her family members or associates.
205
Gifts and other benefits
8.(1) No judicial officer, nor any family member or associate of that judicial officer,
shall solicit or accept any gift, bequest, loan or favour in relation to anything done or to be
done or omitted to be done by the judicial officer in connection with the performance of judi-
cial duties.
(2) If, during the course of judicial proceedings before a judicial officer, the judicial of-
ficer becomes aware that any of his or her family members or associates has received or ac -
cepted any gift, bequest, loan or favour from a party to those proceedings, then, whether or
not such gift, bequest, loan or favour was made in connection with those proceedings, the ju-
dicial officer shall, at the earliest opportunity during those proceedings after he or she be-
comes so aware, require the party concerned to disclose that fact to the other party or parties
to those proceedings.
Participation in extra-curial activities

9.(1) Without compromising the proper performance of his or her judicial duties, a judi-
cial officer may participate in such activities as—
(a) writing, lecturing, teaching and engaging in activities concerning the law, the legal
system, the administration of justice and related matters; and
(b) appearing at a public hearing before an official body concerned with matters relating
to the law, the legal system, the administration of justice or related matters; and
(c) serving as a member of a body referred to in paragraph (b).
(2) A judicial officer may receive such honorarium as may be appropriate for participat -
ing in or undertaking any activity described in subsection (2), so long, however, as such hon-
orarium cannot be reasonably perceived, by fair-minded persons, as—
(a) intended to influence the judicial officer in the performance of his or her judicial du-
ties; or
(b) otherwise giving rise to an appearance of partiality.
(3) A judicial officer may speak publicly on non-legal matters or participate in civil, cul-
tural, religious, educational or charitable activities, so long, however, as such activities do not
detract from the dignity of the judicial office or otherwise interfere with the performance of
judicial duties.
Business and financial dealings

10.(1) A judicial officer shall not serve as an executor, administrator, trustee, guardian or
other fiduciary, save for the estate, trust or person of a member of the judicial officer’s family,
so long, however, as any such service does not interfere, directly or indirectly, with the proper
performance of judicial duties.
(2) A judicial officer shall refrain from financial and business dealings that—
(a) reflect adversely on the judicial officer’s impartiality;
(b) interfere with the proper performance of the judicial officer’s judicial duties;
(c) exploit, or give the appearance of exploiting, the judicial officer’s judicial position;
or
(d) involve the judicial officer in frequent transactions or continuing business relation-
ships with legal practitioners or other persons likely to come before the court on
which the judicial officer serves.
(3) A judicial officer shall not, for the purpose of furthering or advancing his or her per -
sonal financial or business dealings or those of his family members or associates or for any
other purpose which is unrelated to the judicial officer’s judicial duties, disclose or use con-
fidential information acquired during the course of judicial duties.
206
Practising law and rendering of legal advice
11. A judicial officer shall not practise law whilst being the holder of judicial office, but
may, without compensation and without exploiting or giving the appearance of exploiting his
or her judicial position, be consulted by his or her family members or associates on legal mat -
ters.
Promotion of collective interests as judicial officer

12. A judicial officer may form or join an association of judicial officers or participate in
other legally recognised organisations representing the interests of judicial officers to promote
professional training and to protect judicial independence, so long, however, as any such
activities undertaken in connection with such association or organisation do not interfere with
the proper performance of the judicial officer’s duties.
SUB-PART D
IMPARTIALITY
Impartiality generally
13.(1) A judicial officer shall perform his or her judicial duties without fear, favour, bias
or prejudice.
(2) A judicial officer shall, so far as is reasonable, so conduct himself or herself as to
minimise the occasions on which it will be necessary for the judicial officer to be disqualified
from hearing or deciding cases.
(3) A judicial officer shall not make any public comment that may affect or may reason-
ably be construed to affect the outcome of any proceedings or impair their fairness, or make
any comment that might compromise a fair trial or hearing.
Recusal
14.(1) A judicial officer shall disqualify or recuse himself or herself in any proceedings
in which the judicial officer’s impartiality may reasonably be questioned, including but not
limited to instances where—
(a) the judicial officer has personal knowledge of disputed evidentiary facts concerning
the proceedings; or
(b) subject to subsection (2), the matter in controversy—
(i) is one in which the judicial officer had served as a legal practitioner; or
(ii) involves a legal practitioner with whom the judicial officer had previously
practised law, and such involvement began during the time when the judicial
officer and legal practitioner were practising together;
or
(c) subject to subsection (2), the judicial officer or any of his or her family members or
associates has, to his or her knowledge, a financial interest in the subject matter in
controversy or in a party to the proceedings, or any other interest that could be sub -
stantially affected by the outcome of the proceedings; or
(d) subject to subsection (3), the judicial officer has a personal bias or prejudice con-
cerning a party.
(2) A judicial officer who would otherwise be disqualified in terms of subsection (1) (b)
or (c) may, instead of withdrawing from the proceedings, disclose to the parties, the grounds
upon which such potential disqualification may arise. If, based on such disclosure, all the
parties independently of the judicial officer’s participation agree that the judicial officer’s
basis for potential disqualification is immaterial or insubstantial, the judicial officer is no
207
longer disqualified and may participate, or continue to participate, in the proceedings.
(3) The inability on the part of a judicial officer to overcome any personal bias or preju-
dice concerning a party is inconsistent with the exercise of judicial office, and a recusal on
that ground is a violation of this Code, unless the circumstances giving rise to the bias or pre -
judice are of such a nature that any fair-minded person would not perceive that the bias or
prejudice is unreasonable, in which event the judicial officer must inform his or her head of
court or division of those circumstances before recusing himself or herself.
(4) The head of court or division to whom any grounds of recusal referred to in subsec-
tion (3) are disclosed may, at the request of the judicial officer concerned and if the head of
court or division so deems it fit, direct that no disclosure of such grounds of recusal shall be
made to the parties in the case.
Political engagement
15. A judicial officer—
(a) must not actively engage in any political activities or hold any office in a political
organisation or be a member of any political organisation; and
(b) shall not solicit funds for or make a contribution to, a political organisation and shall
not attend political meetings.
SUB-PART E
EQUALITY
Equality
16.(1) A judicial officer shall strive to be aware of, and to understand, and be sensitive
to, diversity in society and differences based on various grounds that are not (except in strict
compliance with the express terms of any law) material or determinative of any issue arising
in connection with his or her performance of judicial duties , including (but not limited to)
differences on the grounds of race, colour, gender, religion, national origin, disability, age,
marital status, social and economic status and other like grounds (hereinafter referred in this
section to as “immaterial grounds”).
(2) A judicial officer shall not, in the performance of judicial duties, by words or con-
duct, manifest bias or prejudice based on immaterial grounds towards any person or group.
(3) A judicial officer shall carry out his or her duties with due or proper consideration for
all persons such as the parties, witnesses, legal practitioners, court staff and judicial col-
leagues, without unjust differentiation on any immaterial ground.
In this subsection “unjust differentiation” means differentiation that is irrelevant to the
proper performance of the duties of a judicial officer.
(4) A judicial officer shall not knowingly permit court staff or others subject to the judi-
cial officer’s influence, direction or control to differentiate between persons on any immater -
ial ground in any matter which is before the judicial officer.
(5) A judicial officer shall require legal practitioners in proceedings before the court to
refrain from manifesting, by words or conduct, bias or prejudice based on immaterial
grounds:
Provided that this requirement does not preclude legitimate advocacy where any such
grounds are legally relevant to an issue in the proceedings.
(6) A judicial officer shall accord to every person who is legally interested in the pro-
ceedings, or the legal practitioner of that person, a full right to be heard according to law, and,
except as authorised by law, shall neither knowingly initiate nor knowingly consider ex parte
or other communications concerning a pending proceeding.
208
SUB-PART F
COMPETENCE AND DILIGENCE
Diligence
17.(1) A judicial officer shall perform all judicial duties efficiently, fairly and with reas -
onable promptness.
(2) The judicial duties of a judicial officer take precedence over all the judicial officer’s
other activities.
(3) A judicial officer shall devote his or her professional activity to judicial duties.
(4) Without derogating from the generality of subsection (3), a judicial officer’s duties
are not only limited to the performance of judicial functions and responsibilities in court and
the rendering of decisions, but include other tasks relevant to the court’s operations or to the
judicial office.
Competence
18.(1) A judicial officer shall take reasonable steps to maintain and enhance the judicial
officer’s knowledge, skills and personal qualities necessary for the proper performance of ju-
dicial duties.
(2) A judicial officer shall keep himself or herself informed about relevant developments
in international law, including relevant international conventions and other instruments estab-
lishing human rights norms.
In this subsection “relevant” means capable of application by courts within the jurisdic-
tion of Zimbabwe in accordance with the Constitution.
Reserved judgments
19.(1) Where a judgment is reserved to be delivered on notice, the judicial officer shall
use his or her best efforts to ensure that such judgment is delivered within the next ninety (90)
days and, except in unusual and exceptional circumstances, no judgment shall be delivered
later than one hundred and eighty (180) days from the date when it is reserved.
(2) Where a judicial officer reserves judgment in any case and the judicial officer has
reason to believe he or she will not be able to render judgment within the ninety-day period
referred to in subsection (1), he or she shall inform his or her head of court or division of that
fact.
(3) Upon receiving the information referred to in subsection (2) the head of court or divi-
sion shall, with reasonable promptness, give such appropriate directions as will enable or as -
sist the concerned judicial officer to deliver judgment within ninety days from the date of re-
servation or no later than one hundred and eighty days thereafter.
(3) The Chief Justice may, by a practice note, reduce the maximum periods within which
judgments must, in terms of this section, be delivered.
SUB-PART G
EFFICIENT AND EXPEDITIOUS CONDUCT OF JUDICIAL BUSINESS
Conduct of judicial proceedings generally

20.(1) A judicial officer shall maintain order and decorum in all proceedings in which
the judicial officer is involved. He or she shall be patient, dignified and courteous in relation
to litigants, assessors, witnesses, legal practitioners and others with whom the judicial officer
deals in an official capacity. The judicial officer shall require similar conduct of legal practi-
tioners, court staff and others subject to the judicial officer’s influence, direction or control.
209
(2) A judicial officer shall attend to matters set-down in chambers and those set-down in
court, timeously and in such manner as is necessary and appropriate to ensure the due and di-
ligent performance of all official duties.
(3) Subject to formal administrative arrangements, a judicial officer shall not assign
work to himself or herself, and no litigant shall have a right to choose the judicial officer who
will preside or deal with their matter.
PART III
Disciplinary committee
21.(1) Subject to the Constitution and any other enactment, if, in the opinion of the Chief
Justice, a judicial officer has conducted himself or herself in a manner that appears to violate
any provision of this Code, the Chief Justice shall appoint a disciplinary committee, which
shall investigate the acts or omissions allegedly constituting the violation and submit its find-
ings and recommendations for the consideration of the Chief Justice.
(2) A disciplinary committee shall be appointed on an ad hoc basis, and shall be com-
posed of three members who are sitting or retired judicial officers, and who may be sitting or
retired judicial officers from Zimbabwe or any other country in which the common law is Ro-
man-Dutch or English and English is an official language:
Provided that two of the members shall be from Zimbabwe, and at least one member
must be a sitting judicial officer serving in Zimbabwe, other than the Chief Justice.
Procedure of disciplinary committee

22.(1) In addition to the general principles listed herein and having regard to the prin-
ciples of natural justice, a disciplinary committee appointed in terms of section 21 shall set its
own rules of procedure.
(2) A disciplinary committee shall—
(a) conduct its proceedings in confidence; and
(b) otherwise be transparent in its procedures so as to strengthen public confidence in
the judiciary and thereby reinforce judicial independence.
(3) By reason of the nature of judicial office, a disciplinary committee shall at all times
during its proceedings take care to ensure that the judicial officer is afforded protection from
vexatious or unsubstantiated accusations.
(4) A disciplinary committee shall use its best endeavours to expeditiously conduct and
finalise its investigation.
(5) A disciplinary committee shall submit its findings and recommendations to the Chief
Justice within a period of ninety (90) days from the date when the committee is constituted,
unless it communicates to the Chief Justice that exceptional circumstances make it impossible
to meet this deadline, in which event the Chief Justice may, at his or her discretion, grant an
extension of time not exceeding a further period of sixty (60) days within which the commit-
tee can submit its findings and recommendations.
Investigation by disciplinary committee and outcome thereof

23.(1) A judicial officer whose conduct is the subject of an investigation by a disciplin-
ary committee may, at the discretion of the Chief Justice, be requested to take leave of ab -
sence for the duration of the investigation.
(2) At the conclusion of its investigation, a disciplinary committee shall forward to the
Chief Justice its findings and recommendations regarding the appropriate disciplinary action,
if any, to be taken against a judicial officer whose conduct was the subject of the investiga-
210
tion.
(3) Upon receipt of the findings and recommendations, the Chief Justice may, if he or
she deems it necessary, invite the concerned judicial officer to submit written representations
in relation to, amongst other things, the conduct of the investigation and the findings or re-
commendations made by a disciplinary committee.
(4) Notwithstanding the recommendations of a disciplinary committee, the final decision
as to what disciplinary measure to take shall be within the exclusive discretion of the Chief
Justice.
Disciplinary measures
24.(1) Subject to the Constitution and any other enactment the following disciplinary
measures that may be imposed on a judicial officer whose conduct is found to be in violation
of this Code, according to the gravity or frequency of the violation—
(a) a reprimand from the Chief Justice; or
(b) a severe reprimand from the Chief Justice; or
(c) a final reprimand from the Chief Justice.
(2) All reprimands under this Code shall be recorded and placed in the personal file of
the judicial officer concerned.
(3) Nothing contained in this Code shall be construed as taking away or derogating from
—
(a) the powers conferred on any person by section 87 of the Constitution and, in the
case of Presidents of the Labour Court or the Administrative Court, the terms and
conditions of their service applicable to them at the time any action is taken under
this Part; or
(b) the right of the Attorney-General or any other person to institute criminal or civil
proceedings against the judicial officer concerned, arising out of the conduct com-
plained of.
Implementation and accountability

25.(1) In the interests of effective implementation, every judicial officer shall use his or
her best endeavours to uphold the values and standards enshrined in this Code.
(2) Subject to the Constitution, the Judicial Service Act [Chapter 7:18] (No. 10 of 2006),
any other enactment and this Code, judicial officers shall not be accountable or answerable to
any other State or non-State organ, entity or authority.
(3) All legitimate complaints against any judicial officer shall be dealt with as follows—
(a) complaints against the person of the Chief Justice shall be directed for the attention
of the President and shall not be subject to this Part;
(b) complaints against the person of the Deputy Chief Justice and the other judges of
the Supreme Court, the Judge President of the High Court, the Senior President of
the Labour Court, and the Senior President of the Administrative Court shall be dir-
ected for the attention of the Chief Justice;
(c) complaints against the other judges of the High Court shall be directed for the atten-
tion of the Judge President;
(d) complaints against the other Presidents of the Labour Court shall be directed for the
attention of the Senior President of the Labour Court; and
(e) complaints against the other Presidents of the Administrative Court shall be directed
for the attention of the Senior President of the Administrative Court:
Provided that in circumstances where the complaint is against a Judge of the High Court
or a President of the Labour Court or the Administrative Court, as the case may be, and the
211
head of the court concerned determines that the complaint lacks merit, head of the court may,
without the need for further investigation, reject the complaint and inform the complainant
and the judicial officer concerned accordingly.
(4) Where the Judge President or a Senior President, as the case maybe, arrive at the
opinion that the complaint appears to have merit, the head of the court concerned shall forth-
with refer such complaint to the Chief Justice, who shall in turn, determine whether the com -
plaint merits reference to a disciplinary committee under this Part.
PART IV
Establishment of Ethics Advisory Committee

26.(1) Subject to the Constitution and any other enactment, there shall be established a
Committee on standards of conduct for judicial officers, to be known as the Ethics Advisory
Committee.
(2) The Ethics Advisory Committee shall consist of not more than five and not less than
three members, appointed by the Chief Justice, of whom—
(a) two or three (as the case may be) shall be judicial officers; and
(b) one or two (as the case may be) shall be legally qualified persons, appointed from a
list of not less than four names submitted by the Judicial Service Commission.
(3) Members appointed under subsection (2)(b) shall—
(a) hold office for such period, not exceeding three years, as may be fixed by the Chief
Justice on their appointment; and
(b) be eligible for reappointment.
Functions of Ethics Advisory Committee

27.(1) The Ethics Advisory Committee shall render advisory opinions not inconsistent
with this Code to inquiring judicial officers relating to the propriety of contemplated judicial
and non-judicial conduct, but all opinions shall be advisory in nature only.
(2) No judicial officer sitting as a member of the Ethics Advisory Committee shall parti -
cipate in any matter before the Committee in which he or she has a direct or indirect interest.
(3) All opinions rendered by the Ethics Advisory Committee, shall be in writing, and a
copy of each opinion, together with the request therefore, shall be filed with the Chief Justice
and the Judicial Service Commission.
(4) The Judicial Service Commission may, at its discretion, circulate the opinions of the
Ethics Advisory Committee for the benefit of members of the Judicial Service:
Provided that all references to the name of the requesting judicial officer shall be deleted.
Interface of Ethics Advisory Committee with disciplinary committees

28. No opinion of the Ethics Advisory Committee shall bind a disciplinary committee
appointed in any proceedings properly before it, and any determination of the propriety or im-
propriety of particular conduct by a disciplinary committee shall supersede any conflicting
opinion of the Ethics Advisory Committee, but the disciplinary committee shall give such
opinion due weight when arriving at any finding or making any recommendation, in particular
—
(a) such opinion may be considered as evidence that the judicial officer subject to the
investigation endeavoured to comply with this Code in good faith;
(b) an opinion issued to one judicial officer shall not be authority for the conduct, or
evidence of good faith, of another judicial officer, unless the underlying facts are
212
identical.
PART V
TRANSITIONAL PROVISIONS
Transitional Provisions
29. Section 19 shall not apply to any judgment that was reserved prior to the coming into
operation of this Code. However, any such judgment still outstanding on the ninetieth day
from the date of promulgation of this Code shall be notified by the judicial officer concerned
to his or her head of the court or division, and upon such notification the head of court or divi-
sion shall give such appropriate directions as are reasonably necessary to ensure the due and
speedy delivery of the judgment.
213
APPENDIX 10: UNITED NATIONS : BASIC PRINCIPLES ON THE INDE-
PENDENCE OF THE JUDICIARY
(Adopted by the Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, held at Milan from 26 August to 6 September 1985 and en-
dorsed by General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of
13 December 1985)
Extracts from the Principles:
Independence of the judiciary

…
2. The judiciary shall decide matters before them impartially, on the basis of facts and in ac -
cordance with the law, without any restrictions, improper influences, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have ex -
clusive authority to decide whether an issue submitted for its decision is within its compet -
ence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process,
nor shall judicial decisions by the courts be subject to revision. This principle is without pre-
judice to judicial review or to mitigation or commutation by competent authorities of sen-
tences imposed by the judiciary, in accordance with the law.
…
6. The principle of the independence of the judiciary entitles and requires the judiciary to en-
sure that judicial proceedings are conducted fairly and that the rights of the parties are respec -
ted.
…
Professional secrecy and immunity

15. The judiciary shall be bound by professional secrecy with regard to their deliberations
and to confidential information acquired in the course of their duties other than in public pro-
ceedings, and shall not be compelled to testify on such matters.
…
214
APPENDIX 11: AFRICAN UNION : PRINCIPLES AND GUIDELINES ON
THE RIGHT TO A FAIR TRIAL AND LEGAL ASSISTANCE IN AFRICA
(Adopted as part of the African Commission’s activity report at the 2nd Summit and
meeting of Heads of State of the AU held in Maputo from 4 – 12 July 2003)
Extract from the Principles and Guidelines:
4. Independent tribunal
…
g) All judicial bodies shall be independent from the executive branch.
…
5. Impartial tribunal
a) A judicial body shall base its decision only on objective evidence, arguments and
facts presented before it. Judicial officers shall decide matters before them without
any restrictions, improper influences, inducements, pressure, threats or interference,
direct or indirect, from any quarter or for any reason.
b) Any party to proceedings before a judicial body shall be entitled to challenge its im-
partiality on the basis of ascertainable facts that the fairness of the judge or judicial
body appears to be in doubt.
c) The impartiality of a judicial body could be determined on the basis of three relevant
facts:
1. that the position of the judicial officer allows him or her to play a crucial role
in the proceedings;
2. the judicial officer may have expressed an opinion which would influence the
decision-making;
3. the judicial official would have to rule on an action taken in a prior capacity.
d) The impartiality of a judicial body would be undermined when:
1. a former public prosecutor or legal representative sits as a judicial officer in a
case in which he or she prosecuted or represented a party;
2. a judicial official secretly participated in the investigation of a case;
3. a judicial official has some connection with the case or a party to the case;
4. a judicial official sits as member of an appeal tribunal in a case which he or
she decided or participated in a lower judicial body.
In any of these circumstances, a judicial official would be under an obligation to
step down.
e) A judicial official may not consult a higher official authority before rendering a de-
cision in order to ensure that his or her decision will be upheld.
215
APPENDIX 12: UNITED NATIONS : GUIDELINES ON THE ROLE OF PRO-
SECUTORS
(Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990)
Extracts from the Guidelines:
Status and conditions of service

3. Prosecutors, as essential agents of the administration of justice, shall at all times maintain
the honour and dignity of their profession.
4. States shall ensure that prosecutors are able to perform their professional functions without
intimidation, hindrance, harassment, improper interference or unjustified exposure to civil,
penal or other liability.
5. Prosecutors and their families shall be physically protected by the authorities when their
personal safety is threatened as a result of the discharge of their prosecutorial functions.
6. Reasonable conditions of service of prosecutors, adequate remuneration and, where applic-
able, tenure, pension and age of retirement shall be set out by law or published rules or regu-
lations.
7. Promotion of prosecutors, wherever such a system exists, shall be based on objective
factors, in particular professional qualifications, ability, integrity and experience, and decided
upon in accordance with fair and impartial procedures.
…
Role in criminal proceedings

10. The office of prosecutors shall be strictly separated from judicial functions.
11. Prosecutors shall perform an active role in criminal proceedings, including institution of
prosecution and, where authorised by law or consistent with local practice, in the investiga-
tion of crime, supervision over the legality of these investigations, supervision of the execu -
tion of court decision and the exercise of other functions as representatives of the public in -
terest.
12. Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and
expeditiously, and respect and protect human dignity and uphold human rights, thus contribut-
ing to ensuring due process and the smooth functioning of the criminal justice system.
13. In the performance of their duties, prosecutors shall:
a) Carry out their functions impartially and avoid all political, social, religious, racial,
cultural, sexual or any other kind of discrimination;
b) Protect the public interest, act with objectivity, take proper account of the position of
the suspect and the victim, and pay attention to all relevant circumstances, irrespect-
ive of whether they are to the advantage or disadvantage of the suspect;
c) Keep matters in their possession confidential, unless the performance of duty or the
needs of justice require otherwise;
d) Consider the views and concerns of victims when their personal interests are affected
and ensure that victims are informed of their rights in accordance with the Declara-
tion of Basic Principles of Justice for Victims of Crime and Abuse of Power.
14. Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay
proceedings, when an impartial investigation shows the charge to be unfounded.
216
15. Prosecutors shall give due attention to the prosecution of crimes committed by public of-
ficials, particularly corruption, abuse of power, grave violations of human rights and other
crimes recognised by international law and, where authorised by law or consistent with locval
practice, the investigation of such offences.
16. When prosecutors come into possession of evidence against suspects that they know or
believe on reasonable grounds was obtained through recourse to unlawful methods, which
constitute a grave violation of the suspect’s human rights, especially involving torture or
cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they
shall refuse to use such evidence against anyone than those who used such methods, or inform
the court accordingly, and shall take all necessary steps to ensure that those responsible for
using such methods are brought to justice.
…
Relations with other government agencies or institutions

20. In order to ensure the fairness and effectiveness of prosecution, prosecutors shall strive to
co-operate with the police, the courts, the legal profession, public defenders and other govern-
ment agencies or institutions.
…
Observance of the Guidelines

23. Prosecutors shall respect the present Guidelines. They shall also, to the best of their cap-
ability, prevent and actively oppose any violations thereof.
24. Prosecutors who have reason to believe that a violation of the present Guidelines has oc-
curred or is about to occur shall report the matter to their superior authorities and, where ne -
cessary, to other appropriate authorities or organs vested with reviewing or remedial power.
[Note: virtually identical provisions are contained in the Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa, adopted as part of the African Commis -
sion’s activity report at the second summit and meeting of heads of State of the African Union
held in Maputo from 4-12 July 2003]
217
APPENDIX 13: CODE OF ETHICS FOR PROSECUTORS
The National Prosecuting Authority (Code of Ethics) Regulations, 2015, were

published in SI 83 of 2015
PART I
PRELIMINARY
Section
1. Title.
2. Interpretation.
3. Application.
PART II
4. Independence.
5. Integrity.
6. Propriety.
7. Impartiality.
8. Political engagement.
9. Equality.
10. Competence and diligence.
PART III
11. Disciplinary committee.
12. Appointment and composition of committee.
13. Procedure.
14. Discipline.
15. Disciplinary measures.
16. Implementation and accountability.
PART IV
17. Establishment of Ethics Advisory Committee.
18. Functions of Ethics Advisory Committee.
PART V
MISCELLANEOUS PROVISIONS
19. General provisions.
IT is hereby notified that the National Prosecuting Authority has, in terms of section
30(1) of the National Prosecuting Authority Act [Chapter 7:20], made the following regula-
tions with the concurrence of the Minister of Justice, Legal and Parliamentary Affairs:–
PART I
PRELIMINARY
Title
218
l. These regulations may be cited as the National Prosecuting Authority (Code of Ethics)
Regulations, 2015.
Interpretation
2. In these regulations—
“Board” means the National Prosecuting Authority Board appointed in terms of section 5
of the National Prosecuting Authority Act [Chapter 7:20];
“immaterial grounds” in relation to equality provided for in section 9 includes but is not
limited to, race, colour, gender, religion, national origin, disability, age, marital status,
social and economic status, and other like causes;
“Prosecutor” includes for the exclusive purposes of these regulations—
(a) the National Director of Public Prosecution; and
(b) the Deputy National Director of Public Prosecution; and
(c) the State Counsel II; and
(d) the principal Law Officers, Senior Law Officers and Law Officers; and
(e) Public Prosecutors; and
(f) any other person acting in the capacity of a prosecutor;
“Public Prosecutor’s family” includes a Public Prosecutor’s spouse, son, daughter, son-in-
law or daughter-in-law or any other close relative or employee.
Application
3. These regulations shall apply to—
(a) the Prosecutor-General;
(b) the National Director of Public Prosecution;
(c) the Deputy National Director of Public Prosecution;
(d) the State Counsel II;
(e) the Principal Law Officers, Senior Law Officers and Law Officers;
(f) any other person acting in the capacity of a public prosecutor.
PART II
Independence
4.(l) A prosecutor shall uphold the independence of the Authority, the authority of the
office and shall in keeping with his or her prosecutorial mandate, perform all duties without
fear or favour.
(2) A prosecutor shall at all times exhibit and promote high ethical standards in order to
foster public confidence, which is universally accepted as a fundamental ingredient to the
maintenance of prosecutorial independence.
(3) A prosecutor shall be faithful to and maintain professional competence in law, and
shall not be swayed by public clamour or fear of criticism.
Integrity
5.(1) A prosecutor shall ensure that his or her conduct, in and outside court, is above re -
proach in the view of reasonable, fair minded and informed persons.
(2) A prosecutor shall not allow family, social, political, religious or other like relation-
ships to influence his or her prosecutorial duties or judgment.
(3) A prosecutor shall participate in establishing, maintaining and enforcing high stand-
219
ards of conduct, and shall personally observe those standards, so that the integrity of the Au-
thority may be preserved.
Propriety
6.(1) A prosecutor shall avoid impropriety and the appearance of improper behaviour in
all of his or her activities, at work and away from work, and shall avoid any conduct that has
the result of bringing the Authority into disrepute.
(2) As a subject of constant public scrutiny, a prosecutor—
(a) must accept personal restrictions that might be viewed as burdensome by the ordin-
ary citizen; and
(b) shall conduct himself or herself in a way that is consistent with the dignity of the of-
fice of the Prosecutor-General.
(3) A prosecutor shall not use or lend the prestige of the office of the Prosecutor-General
to advance his or her private interests or those of any member of his or her family and friends.
(4) A prosecutor and members of the prosecutor's family, shall neither solicit for, nor ac-
cept any gift, bequest, loan or favour in relation to anything done or to be done or omitted to
be done by the Prosecutor in connection with the performance of his or her duties.
(5) Subject to the proper performance of prosecutorial duties, a prosecutor may particip-
ate in such activities as—
(a) writing, lecturing, teaching and engaging in activities concerning the law, the legal
system, the administration of justice and related matters;
(b) appearing at a public hearing before an official body concerned with matters relating
to the law, the legal system and the administration of justice or related matters; and
(c) serving as a member of such body as referred to in paragraph (b) above.
(6) A prosecutor may receive such honorarium as may be appropriate, for participating
in any such activity as described in this section:
Provided that such honorarium might not be reasonably perceived, by fair-minded per-
sons, as intended to influence the Prosecutor in the performance of his or her duties or other-
wise give rise to an appearance of partiality.
(7) A prosecutor may speak publicly on non-legal matters or participate in civil, cultural,
religious, educational or charitable activities:
Provided that any such activities do not detract from the dignity of the prosecutorial of-
fice or otherwise interfere with the performance of prosecutorial duties.
(8) A prosecutor shall not serve as an executor, administrator, trustee, guardian or other
fiduciary, save for the estate, trust or person of a member of the Prosecutor’s family:
Provided that any such services do not interfere, directly or indirectly, with the proper
performance of prosecutorial duties.
(9) A prosecutor shall refrain from financial and business dealings that—
(a) reflect adversely on the Prosecutor’s duties;
(b) interfere with the proper performance of the Prosecutor’s duties;
(c) exploit the Prosecutor’s prosecutorial position; or
(d) involve the Prosecutor in frequent transactions or continuing business relationships
with legal practitioners or other persons likely to receive his or her services.
(10) A prosecutor shall not disclose nor use confidential information acquired during the
course of his or her duties, for the purposes of furthering or advancing his or her personal or
family’s financial dealings nor for any other purpose which is unrelated to the Prosecutor’s
duties.
220
(11) A prosecutor shall not practise law whilst being the holder of a prosecutorial office,
but may, without compensation, be consulted by his or her family members on legal matters.
(12) A prosecutor may form or join an association of prosecutors or participate in other
legally recognised organisations representing the interests of prosecutors to promote profes-
sional training and to protect independence of the Authority.
Impartiality
7.(1) A prosecutor shall perform his or her duties without fear or prejudice.
(2) A prosecutor shall, so far as is reasonable, so conduct himself or herself as to minim-
ise the occasions on which it will be necessary for the Prosecutor to be disqualified from pro-
secuting cases.
(3) A prosecutor shall not make any public comment that may affect or may reasonably
be construed to affect the outcome of any proceedings or impair their fairness, or make any
comment that might compromise a fair trial or hearing.
(4) A prosecutor shall disqualify or recuse himself or herself in any proceedings in which
the Prosecutor's conduct may reasonably be questioned, including but not limited to instances
where—
(a) the Prosecutor has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceedings;
(b) the Prosecutor served as legal practitioner in the matter in controversy, or a legal
practitioner with whom the Prosecutor previously practised law with, served during
such association as a legal practitioner concerning the matter;
(c) the Prosecutor has a financial interest in the subject matter in controversy or in a
party to the proceedings, or any other interest that could be substantially affected by
the outcome of the proceedings:
Provided that a prosecutor who would otherwise be potentially disqualified in terms of
this section may, instead of withdrawing from the proceedings, disclose to the parties, the
grounds upon which such potential disqualification may arise. If, based on such disclosure,
the parties independently of the Prosecutor’s participation all agree that the Prosecutor’s basis
for potential disqualification is immaterial or insubstantial, the Prosecutor is no longer dis-
qualified and may continue to participate, or continue to participate, in the proceedings.
Political engagement
8.(1) The Prosecutor-General and officers of the Authority must act in accordance with
the Constitution and the law.
(2) No officer of the Authority may, in the exercise of his or her functions—
(a) act in partisan manner; or
(b) further the interests of any political party or cause; or
(c) prejudice the interests of any political party or cause; or
(d) violate the fundamental rights or freedoms of any person.
(3) Officers of the Authority must not be active members or office bearers of any polit-
ical party or organisation.
Equality
9.(1) A prosecutor shall strive to be aware of, and to understand, diversity in society and
differences arising from various sources, including immaterial grounds.
(2) A prosecutor shall not, in the performance of prosecutorial duties, by words or con-
duct, manifest bias or prejudice towards any person or group based on immaterial grounds.
(3) A prosecutor shall carry out his or her duties with due or proper consideration for all
221
persons such as the parties, witnesses, legal practitioners, court staff and judicial officers,
without unjust differentiation on any immaterial ground, irrelevant to the proper performance
of such duties.
(4) A prosecutor shall be required in proceedings before the court to refrain manifesting,
by words or conduct prejudice based on immaterial grounds:
Provided that this requirement does not preclude legitimate advocacy which any such
grounds are legally relevant to an issue in the proceedings.
Competence and diligence

10.(1) The prosecutorial duties of a prosecutor take precedence over all the Prosecutor’s
other activities.
(2) A prosecutor shall devote his or her professional activity to prosecutorial duties.
(3) Without derogating from the generality of subsection (2), a Prosecutor’s duties are
not limited only to the performance of prosecutorial functions in court and to the rendering of
well reasoned arguments and decisions, but include other tasks relevant to the court’s opera-
tions of the prosecutorial office.
(4) A prosecutor shall take reasonable steps to maintain and enhance the Prosecutor’s
knowledge, skills and personal qualities necessary for the proper performance of judicial du-
ties.
(5) A prosecutor shall keep himself or herself informed about relevant developments in
international law, including international conventions and other instruments establishing hu-
man rights norms and, within any applicable limits of the Constitution.
(6) A prosecutor shall perform all prosecutorial duties, including making oral or submit-
ting written submissions efficiently and with reasonable promptness.
(7) A prosecutor shall comply with court rules and standard operating procedures of the
Authority at all times.
PART III
Disciplinary committee
11. Subject to the Constitution and any other enactment, if in the opinion of the Author-
ity, a prosecutor has conducted himself or herself in a manner that, prima facie, violates any
provision of these regulations and is such that it merits to be investigated, he or she shall ap -
point a disciplinary committee, which shall investigate into the acts or omissions allegedly
giving rise to the violation and submit to the Prosecutor-General its findings and recommend-
ations.
Appointment and composition of committee

12.(1) A disciplinary committee shall be appointed on an ad hoc basis, and shall be com-
posed of three members, two of whom may be retired prosecutors or judicial officers and one
sitting prosecutor.
(2) Members of a disciplinary committee may be drawn from Zimbabwe or any other
country in which the common law is Roman-Dutch or English and English is an official lan-
guage:
Provided that at least two out of the three members of any disciplinary committee shall be
from Zimbabwe.
Procedure
13.(1) In addition to the general principles listed herein and having regard to the prin-
ciples of natural justice, a disciplinary committee shall set its own rules of procedures.
222
(2) A disciplinary committee shall—
(a) conduct its proceedings in confidence; and
(b) be transparent in its procedures so as to strengthen public confidence in the Author-
ity and thereby reinforce its independence.
(3) By reason of the nature of the office, a disciplinary committee, shall at all times dur-
ing its proceedings, take into account the legitimate needs of a prosecutor and ensure that the
Prosecutor is afforded protection from vexatious and unsubstantiated accusations.
(4) A disciplinary committee shall use its best endeavours to expeditiously conduct and
finalise its investigation.
(5) A disciplinary committee shall submit its findings and recommendations to the Board
within a period of 90 days from date of receiving a complaint, unless it communicates excep-
tional circumstances to the Board, which, in the exercise of its discretion may grant an exten-
sion of time within which the committee can submit its findings and recommendations. Any
such extension shall not exceed a further period of 60 days.
Discipline
14.(l) A prosecutor whose conduct is the subject of an investigation by a disciplinary
committee may, at the discretion of the Board, be requested to take leave of absence for the
duration of the investigation.
(2) At the conclusion of its investigation, a disciplinary committee shall forward to the
Board its findings and recommendations regarding the appropriate disciplinary action, if any,
to be taken against a prosecutor whose conduct was the subject of the investigation.
(3) Upon receipt of the findings and recommendations, the Board may, if he deems ne-
cessary, invite the affected prosecutor to submit written representations in relation to, amongst
other things, the conduct of the investigation and the findings or recommendations made by a
disciplinary committee.
(4) Notwithstanding the recommendations of a disciplinary committee. the final decision
as to what disciplinary measure to take shall be within the exclusive discretion of the Board.
Disciplinary measures
15.(l) Subject to the Constitution and any other enactment the following shall be the per-
missible disciplinary measures that may be imposed on a prosecutor whose conduct is found
to be in violation of the provisions of these regulations—
(a) a reprimand from the Board;
(b) a severe reprimand from the Board; or
(c) a final reprimand from the Board.
(2) All reprimands under these regulations shall be recorded and placed in the personal
file of the prosecutor concerned.
(3) Nothing contained in this Code shall be construed as taking away the powers of the
Prosecutor-General to institute criminal or and in case of the Board, civil proceedings against
the prosecutor concerned, arising out of the conduct complained of.
Implementation and accountability

16.(l) In the interests of effective implementation, every prosecutor shall use his or her
best endeavours to uphold the values and standards as enunciated in these regulations.
(2) Subject to the Constitution, the National Prosecuting Authority Act [Chapter 7:20] or
any other enactment or as is otherwise provided by this Code, prosecutors shall not be ac -
countable or answerable to any other State or non-state organ, entity or authority.
(3) All legitimate complaints against any prosecutor shall be dealt with as follows—
223
(a) complaints against the person of the National Director of Public Prosecutions shall
be directed for the attention of the Prosecutor-General or the Board;
(b) complaints against the Deputy National Director of Public Prosecutions shall be dir-
ected for the attention of the National Director of Public Prosecutions or the Board;
(c) complaints against the Chief Public Prosecutor shall be directed for the attention of
the Deputy National Director of Public Prosecutions, National Director of Public
Prosecutions, Prosecutor-General or the Board;
(d) complaints against the Principal Public Prosecutor, Senior Public Prosecutor and
Law Officers shall be directed for the attention of the Chief Public Prosecutor,
Deputy National Director of Public Prosecutions, National Director of Public Pro-
secutions, Prosecutor-General or the Board;
(e) complaints against any other person acting in the capacity of a Public Prosecutor
shall be directed for the attention of the Chief Public Prosecutor:
Provided that in circumstances where the complaint is against the National Director of
Public Prosecutions, and the Prosecutor-General determine that the complaint lacks merit, he
or she may, without the need for further investigation, at his or her discretion, dispose of the
complaint.
(4) Where the Authority, as the case may be, arrive at the opinion, that prima facie, the
complaint has merit, the Authority shall, forthwith, refer such complaint to a disciplinary
committee.
PART IV
Establishment of Ethics Advisory Committee

17.(1) Subject to the Constitution and any other enactment there shall be established a
committee on standards of conduct for prosecutors, to be known as the Ethics Advisory Com-
mittee.
(2) The Ethics Advisory Committee shall consist of not more than five and not less than
three members, appointed by the Authority, of whom—
(a) three shall be prosecutors; and
(b) two legally qualified persons submitted by the Board.
(3) Members appointed in terms of subsection (2)(b) shall—
(a) hold office for such period, not exceeding three years, as may be fixed by the Au-
thority on their appointment; and
(b) be eligible for reappointment for one such further term.
Functions of Ethics Advisory Committee

18.(1) The Advisory Committee shall render advisory opinions to inquiring prosecutors
relating to the propriety of contemplated professional and non professional conduct, but all
opinions shall be advisory in nature only.
(2) For the avoidance of doubt, no opinion shall bind a disciplinary committee appointed
in terms of these regulations, in any proceeding properly before that body.
(3) An opinion of the Advisory Committee may, however, in the discretion of a discip-
linary committee, be considered as evidence of a good faith effort to comply with this Na-
tional Prosecuting Authority Code of Ethics:
Provided that no opinion issued to one prosecutor shall be authority for the conduct, or
evidence of good faith, of another prosecutor unless the underlying facts arc identical.
(4) All opinions rendered by the Advisory Committee, shall be in writing, and a copy of
224
each opinion, together with the request therefor, shall be filed with the Authority.
(5) The National Prosecuting Authority may, at its discretion, publish the opinions of the
Advisory Committee, only within the service. For all such publications and for purposes of
maintaining confidentiality, all references to the name of the requesting Prosecutor shall be
deleted.
PART V
MISCELLANEOUS PROVISIONS
General provisions
19.(1) No prosecutor on the Advisory Committee shall participate in any matter before
the Committee in which he or she has a direct or indirect interest.
(2) Any determination of the propriety or impropriety of particular conduct by a discip -
linary committee shall supersede any conflicting opinion of the Advisory Committee.
225

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UNIVERSITY OF ZIMBABWE

LL.B. (HONS) PART III

1. What are Professional Ethics?...................................................7

The Defence Forces

The Civil Service

The reason why teachers can be regarded as professionals — their special-

Banking and insurance

Some factors distinguishing professions from other activities

Commercial or trading activities are often regarded as incompatible with

“Professions and business have traditionally been contrasted. The pro-

The essential difference between professional and trading activities lies

Many professionals use manual and other physical techniques, so

An intellectual discipline, capable of formulation on theoretical lines, re-

The discipline should generally be one in which the public needs to be

The importance of such an organisation cannot be overemphasised, par-

“Lawyers shall be entitled to form and join self-governing professional

A roll or register identifying members of the profession. Persons not on

A foundation in private practice, so that the standards of the profession

In some professions the advisory function is less prominent, though it is

Where a professional person gives advice, he accepts full personal re-

In the case of the legal profession, this is particularly important. As

The reality, of course, is somewhat different. An American judge, R.J.

The same may be said of the profession in Zimbabwe.

Legal practitioners have to make a living, and they cannot be expected

“Codes of professional conduct for lawyers shall be established by the

Any such code of professional conduct must impose higher standards

It is important that a code of conduct, where there is a written one,

are recognised as having some special skill or learning in some field of

are identifiable by reference to a register or record;

belong to, or are entitled to belong to23, a representative organisation

usually perform advisory functions and accept personal responsibility

hold themselves out as willing to serve the public;

submit to a set of rules which impose higher standards of conduct than

Characteristics of codes of professional ethics

Nature of rules in code of professional ethics

The Zimbabwean code

Rationale for giving lawyers a monopoly

Quid pro quo: competence and honesty

Excursus: meaning of “honesty”, “integrity”, etc.

General qualities legal practitioners are expected to possess

Respect for the courts

Communications with judicial officers

Abuse of court process

Duty to assist the court adjudicate on real issues

Undertakings and assurances to courts

Misleading a court: concealment of facts

Argument: citation of authorities, even adverse authorities

Freedom of speech: defamation

When does a person become a client?

Acceptance or refusal of work

Degree of skill and competence expected of practitioners

Duty to advise client

Duty to act with reasonable diligence

Right to conduct case

Extent of duty of confidentiality

Confidentiality and professional privilege

Reason for confidentiality

Duration of duty of confidentiality

Legal practitioner working for two parties

When otherwise confidential information may be disclosed

Conflict: acting for both parties

Improper business or financial dealings

Contracts between legal practitioner and client