Political society

The dual role of the Bar called into question

the herald

Daniel Nemukuyu

Survey Editor

The Law Society of Zimbabwe’s dual role as a regulator of the profession and a representative body representing lawyers is now being challenged in the courts, with a growing number of lawyers wanting roles to be shared, as is currently happening in many other professions such as medicine.

Lawyers seeking action on the split have approached the High Court seeking an order replacing or amending the Law Practitioners Act. Besides the split, the lawyers also want the regulator to become more independent, rather than a body made up of their competitors who have won an election.

The Law Society effectively collects what amounts to compulsory dues from all practicing solicitors and is responsible for regulating them, setting standards, licensing solicitors to register with the High Court, ensuring that all those in private practice maintain audited trust accounts and deal with disciplinary matters when lawyers do not follow their professional rules.

Practice certificates, compulsory for lawyers to earn a living, are issued by the society and were until recently granted only to those who paid social security contributions, whether or not they participated in the activities of the society. .

But in addition to these regulatory functions, the bar sometimes makes statements on behalf of lawyers, giving the impression that it speaks on behalf of the entire profession, even though some lawyers complain of a lack of proper consultation. and strongly disagree with what the bar says, or would like a representative body to be more active.

Lawyers who want the split see a single regulatory body, governing all lawyers, would continue to control admissions to the profession, ensure that all lawyers meet professional standards and be able to take disciplinary action against those who fail or commit criminal offences. This would be supported by mandatory payments from lawyers, although this is now an annual registration fee for the practice certificate rather than subscriptions.

Lawyers, or groups of like-minded lawyers, would then form the voluntary representative bodies that could speak out on issues, initiate debate on legal issues, and even encourage and organize advanced legal education.

Several lawyers, members of the Law Society of Zimbabwe, believe that the Law Practitioners Act, which governs the profession, should be repealed and replaced by a new law providing for the creation of separate entities to deal with issues in the spirit of independence.

A registered attorney, Barrister Joshua Chirambwe, has now gone further. He went to the High Court to challenge the legality of the current Bar Association.

Adv Chirambwe, through Mutumbwa, Mugabe & Partners, seeks an order declaring unconstitutional the arrangement whereby the Law Society is both the regulator of the profession and the sole representative of the interests of legal practitioners in the country .

He also seeks an order declaring that the levying and collection of compulsory dues by the Law Society of Zimbabwe, without specifying that the dues are optional, amounts to the compulsory acquisition of property in violation of the supreme law of the land.

Adv Chirambwi wants the Minister of Justice, Legal and Parliamentary Affairs, Ziyambi Ziyambi, to be ordered to introduce a bill for the repeal of the Law Practitioners Act and subsequent replacement of the law with one that considers the separation of the regulatory and representative roles of the legal profession.

He is also claiming all membership fees he has paid since joining the Bar.

Minister Ziyambi in his official capacity, the Law Society and the Attorney General of Zimbabwe, Barrister Prince Machaya in his official capacity are listed as defendants in the lawsuit.

Adv Chirambwe argues that the current law indirectly requires lawyers to be members of the Law Society of Zimbabwe despite Section 52 of the Law Practitioners Act which grants lawyers the choice to form their own societies.

“So despite the ‘choice’ to be a member or to form one’s own society in Section 52 of the Act, the position remains that only the Law Society of Zimbabwe has a statutory right to dues.

“It makes the situation unfair, not only to me, but to any other association that those who choose not to be members of the Law Society of Zimbabwe might form.

“The (Bar) Council, which has the statutory right to regulate practice, is made up of practicing lawyers elected solely by members of the Bar. In other words, they regulate colleagues and competitors, people with whom they compete for business, including those who might choose not to be members,” he said.

The current law, according to the lawyers, is structurally weak and must be repealed and replaced by a stronger law.

“The right to impartial administrative action cannot be achieved when those who have the power to judge legal practitioners as regulators have a vested interest in the profession; in their day-to-day work, compete with those they regulate.

“This structural weakness can only be corrected by changing the whole way the law regulates the legal profession in Zimbabwe. A new law, inspired, for example, by the South African Legal Practice Act, which allows for more than one bar, would suffice,” reads the argument of lawyer Chirambwe.

On the other hand, according to the lawyers, the regulatory regime under the current law is not independent of the Law Society of Zimbabwe.

“By force of law, the legal practitioner regulatory regime is captured by the Law Society.”

Meanwhile, another lawyer, Mr Chawaona Kanoti of Kanoti and Partners, has since written to the Law Society reminding them of his 2009 case where he felt the society took a position regarding a political matter without proper consultation.

“I remember making a similar claim around 2009 when the then LSZ President and other LSZ members were violently assaulted by police at Chapman Golf Club, Harare, for (allegedly) taking part or led a political demonstration, leading the company to file a High Court petition against the authorities allegedly responsible.

“As I felt that not all members were consulted and felt the ideological and political overtones of the bid, and further felt that the bid looked like an MDC-T bid discriminating against he other political parties, including the ZIYA of which I was president, the actions of the LSZ seemed extremely partisan as they were biased in favor of the MDC-T.

“I then filed my own petition in the High Court against the company complaining that I had not been consulted as a member, for the protest as well as the company’s legal petition. . . ”

Mr Kanoti plans to file his own petition or join Barrister Chirambwe’s challenge to the High Court.

In a recent development, the Law Society decided not to require lawyers to pay membership fees as a condition of obtaining a certificate of practice, but Mr Kanoti wants to know if lawyers will get a refund for all monies paid. in the past. .

Some lawyers, Mr. Kanoti said, cannot speak openly about the legality of the company. Therefore, a secret ballot should be held to say whether the members are satisfied with the society.

“Can the society consider holding a secret ballot of its current members, overseen by an independent institution such as the ministry or officials of other professional associations, on whether the members wish the society to remain in both regulator and representative or otherwise,” he said. noted.

Harare lawyer Ms Jacqueline Sande of Sande & Partners said: “This is misguided as it can compromise objectivity as lawyers are regulated by their colleagues who are often also their competitors. In other jurisdictions like South Africa, the roles are separate.