HH 394-22

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HH 394-22
LPDT 05/20

THE LAW SOCIETY OF ZIMBABWE


versus
JAMES MAGODORA

HARARE, 8 December 2021 & 22 June 2022


Before: CHATUKUTA J (Chairperson), MUSAKWA J (Deputy Chairperson)
MR D KANOKANGA & MRS S. MOYO (members)

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL

N Chikowore, for the applicant


Respondent in person

CHATUKUTA J: The respondent faced one charge of contravening section 23 (1) (d) of
the Legal Practitioners Act [Chapter 27:07]. The applicant alleged that the respondent withheld
payments of trust funds without lawful cause. He also faced two other counts of contravening By
Laws 70 E (2) and 70F, and 65 (a) of the Law Society By-Laws, 1982 (SI 314 of 1982) (the By-
Laws) respectively. The applicant alleged that the respondent failed to promptly pay monies
received in his trust account when it became due in contravention of By-Law 70 E (2) and 70 (F)
of the By Laws. It was further alleged that he unreasonably neglected to respond to
correspondence from the applicant in contravention of By Law 65 (a).
The background to the charges is as follows: Regarding the first charge, the respondent
facilitated negotiations for the sale of an immovable property owned by his client. The complainant
who was the purchaser paid a sum of US$16 484.00 into the respondent’s trust account in
anticipation of the parties concluding an agreement of sale. The parties failed to agree on some of
the terms. Resultantly, no agreement was signed by the complainant and the respondent’s client.
On 11 November 2016, the complainant, with the assistance of Bhunu and Associates Legal
Practitioners, requested from the respondent a refund of the amount of US$16 484.00 paid into the
respondent’s trust account. The respondent failed to remit the amount to the complainant. The
latter lodged a complaint with the applicant by email of 24 November 2016. On 15 December 2016
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LPDT 05/20

the applicant invited the respondent to reply to the complaint. The respondent failed to respond to
the request.
The respondent only remitted the amount of US$16 484.00 to the complainant on 25
October 2018. His explanation for the delay of two years was that he had given the money to his
client who wanted to pay school fees for his children. The client delayed to return the money in
time for him to reimburse the complainant.
The second charge arose from a complaint to the applicant lodged by clients who had
engaged the respondent in a labour dispute with their employer. The employer paid an amount of
USD 11 682.85 into the respondent’s trust account. The respondent remitted a sum of US$4 050.00
to the employees leaving a balance of US$7 632.00.
On 16 May 2018, the applicant requested the respondent to reply to the complaint. The
respondent failed to respond to the request. He also failed to respond to follow up letters from the
applicant. The non-response to the communication from the applicant was basis for the third
charge.
On 8 December 2021, the Tribunal found the respondent guilty of unprofessional,
dishonorable or unworthy conduct. Both the applicant and the respondent have filed written
submissions in aggravation and mitigation respectively.
The law is settled that, generally, a legal practitioner’s name should be deleted from the
Register of Legal Practitioners if he is found to have mishandled trust funds. The legal
practitioner’s name can be saved from deletion from the register only in exceptional circumstances.
(see Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (SC).) In arriving at its decision, the
Tribunal is guided by the following objectives:
a) upholding public confidence in the administration of justice;
b) safeguarding the collective interest in upholding the standard of the legal profession.
The Tribunal is guided by the opinion of the applicant which is the regulator of the
profession. See Law Society of Zimbabwe v Sheelagh Cathrine Stewart HH 39-89.
c) punishment of the errant legal practitioner for the misconduct
d) setting standards to be observed by other legal practitioners and in the process
deterrence against similar offences by like-minded legal practitioners
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In Muskwe v Law Society of Zimbabwe GWAUNZA DCJ SC 72-20 remarked at paragraph 9


that:
“9. A look at the relevant cases and other authorities clearly suggests that courts of law
take a very serious view of the abuse of trust funds by a legal practitioner. Further,
that lawyers, as a class, generally hold themselves up to very high standards of
honesty, integrity and professionalism in the discharge of their legal duties. In the
case of Incorporated Law Society Transvaal v Behrman, 1977(1) SA 904(T) at 905
H the court unequivocally stated that a practitioner who contravened the provisions
relating to his trust account was guilty of unprofessional conduct and liable to be
struck off the roll or suspended from practice. The court in Law Society, Transvaal
v Matthews 1989 (4) SA 389 (T) at 394 expressed the same sentiments as follows:
“I deal now with the duty of an attorney in regard to trust money. … where
trust money is paid to an attorney it is his duty to keep it in his possession
and to use it for no other purpose than that of the trust. It is inherent in
such a trust that the attorney should at all times have available liquid funds
in an equivalent amount. The very essence of a trust is the absence of risk.
It is imperative that trust money in the possession of an attorney should
be available to his client the instant it becomes payable.” (my emphasis)”

The applicant has sought deregistration of the respondent. The issue for determination is
therefore whether exceptional circumstances exist compelling the Tribunal not to deregister the
respondent.
Counsel for the respondent submitted as follows: He is 55 years old. He is a family man
with four children and is the sole breadwinner. Three of his children are at university. He was
registered as a legal practitioner in 1994.
He compensated the first complainant in full. He in addition offered the complainant a plot
being sub-division 3 of Roslin Farm. The complainant has since taken occupation of the plot,
constructed a dwelling and is into animal husbandry and agriculture. In support of these
developments, the respondent attached two receipts from Zibagwe Rural District Council of
payments made towards development levy for 2013 to 2020 and other fees. Also attached is a copy
of a sale agreement dated 18 July 2020 between the respondent (being the purchaser) and one
Benjamin Mahlatini (being the seller) for the purchase of Plot 3 of Roslin Farm. The respondent
submitted that he had suffered “double jeopardy” in that he compensated the complainant in full
and in addition purchased a plot for the complainant.
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He refunded the second complainant leading to the complainant withdrawing his complaint
to the applicant.
He apologized for the failure to respond to the communication from the applicant and
submitted that he was traumatized by the entire process. He was further traumatized when the
applicant withheld the practicing certificate for year 2019. He was issued with a practicing
certificate by the applicant for the year ending December 2022. This was indicative of compliance
with the registration requirements set by the applicant.
The applicant submitted that there were no exceptional circumstances justifying deviation
from the general principle. It was submitted as follows: The trust funds in respect of the first
complaint were substantial. In spite of demand for the release of the funds having been made in
2016, compensation was only made in October 2018.
The respondent set up the law firm, Magodora & Partners, in January 2002. The firm has
been in existence for twenty years with the respondent being the principal of the firm. The
respondent’s conduct was not exemplary for such a senior practitioner and principal of a law firm.
With respect to the respondent’s submissions in mitigation, the applicant submitted that
the documents attached to the submissions did not disclose in what way they related to the
complainants. It was submitted that the receipts did not have the first complainant’s name. It was
further submitted that the complainant was not a party to the agreement of sale of sub-division 3
of Roslin Farm.
We are of the view that the applicant did not advance any exceptional circumstances
warranting deviation from the established principle that misappropriation of trust funds renders a
legal practitioner unfit to practice law. We take note of the mitigating factors submitted regarding
the respondent’s personal circumstances. We are however of the view that the circumstances are
nothing out of the ordinary.
The fact that the respondent has not had a brush with the applicant during the twenty years
of practice would ordinarily have been mitigating. However, the acts of misconduct that placed
him before the Tribunal are serious and go to the core of the legal profession. As rightly submitted
by the applicant, the seniority of the respondent in his firm and in the profession weighs against
the mitigating factors. The respondent’s otherwise unblemished career pales into insignificance
against the seriousness of the charges.
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The seriousness of the acts of misconduct is further compounded in the first charge by the
delay in remitting trust funds to the complainant. The complainant was put out of funds as she had
to seek legal assistance from yet another firm to recover what was owed to her by the respondent.
In spite of the intervention of another legal firm, the respondent still failed to remit the money to
the complainant. The intervention of the applicant did not have immediate positive impact. From
15 December 2016 up to 25 October 2018, the respondent was unyielding and not paying any heed
to the regulator’s intervention. This in our view was a show of disdain of the regulator of the
profession and should not be tolerated.
The disdain of the regulator is again reflected in his failure to respond to communication
from the applicant in relation to the second act of misconduct.
The respondent did not suggest any penalty that should be imposed on him. He simply
submitted that the penalty suggested by the applicant “is unduly harsh and disproportionate to the
gravity of the offences.” Neither the imposition of a fine nor the suspension of the respondent
would in our view be appropriate in view of our finding that there are no exceptional circumstances
that preclude the Tribunal from causing the deletion of the respondent’s name from the register of
legal practitioners,

In the result, it is accordingly ordered that:

1. The respondent’s name be deleted from the Register of Legal Practitioners, Notaries Public
and Conveyancers.
2. The respondent be and is hereby ordered to pay all the expenses incurred by the applicant
in connection with these proceedings.

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