Ngoni Dapira

JUSTICE has been served!

These were the sentiments as a sigh of relief by 35 years old Lackmore Chikove from Mutare in the ongoing case of prominent Mutare based criminal lawyer Cosmas Chibaya of Chibaya and Partners Legal Practitioners, who has been found guilty of unprofessional conduct by the Law Society of Zimbabwe (LSZ), following investigations that started in August 2022 over a double sale of a stand that he orchestrated.

Chikove has been waiting patiently for the outcome of his case for two years, after he filed the complaint to the LSZ on 1 August 2022, but admitted he was becoming jittery about the prolongation of the case.

The LSZ is a self-governing body and association mandated with registering lawyers and regulating how lawyers and law firms operate in Zimbabwe.

With cases reportedly on the increase in Zimbabwe of fraud and unprofessional conduct by lawyers that either embezzle trust funds or orchestrate fraudulent scams after being trusted by clients, this case becomes a relief that justice still exists for the ordinary citizens, who of late often become law unto themselves to resolve such matters of swindle as a desperate alternative.

In a letter dated 24 July by the LSZ to Chibaya, it stated, “Council resolved that you be found guilty of unprofessional conduct for failing or neglecting to take reasonable steps to protect a client’s best interests in contravention of By-Law 3 (35) of the Legal Practitioners (Code of Conduct), By- Law, SI (Statutory Instrument) of 37 of 2018 in that, you facilitated the sale of the property to a third party despite being aware that the ownership of the property was contested and that, you be asked to mitigate.”

Chibaya started being investigated by the LSZ in August 2022, after a complaint was filed against him by Chikove for unethical conduct in his professional execution of a residential stand deal in the high-density suburb of Chikanga in Mutare.

Chibaya is being investigated together with another Mutare based lawyer, Medusa Simango of Mupindu Legal Practitioners, who is also being accused of not executing her professional duties honestly and diligently, as a collaborator in the matter.

In a separate letter to Simango also dated 24 July, the LSZ stated that, “Council deliberated and noted that, it was apparent that you had not exercised due care in this matter. In Council’s view, you ought to have taken steps to protect your client’s interests. Council noted that you had received from the Complainant money, which you transmitted to the seller without any due diligence into the title of the property,” read the letter which also found her guilty of unprofessional conduct.

Both lawyers were given two weeks (14 days) to submit their mitigation submissions, if any, pending their final sentences. The two weeks lapsed on Monday (19 August).

The LSZ regulatory services, risk and compliance manager Rebecca Magorokosho-Musimwa on Wednesday confirmed that the sentence will be laid down separately soon after they go through the mitigation responses from the two lawyers, if they responded.

“I will revert next week. Currently I am not able to verify (if the mitigation responses have been sent by the two lawyers) due to other commitments, but next week Monday I will advise after I have gone through the file,” said Magorokosho-Musimwa, answering the follow-up message from this reporter on the case.

The complainant Chikove wrote a letter of complaint to the LSZ on August 1, 2022, seeking recourse, after being aggrieved by the conduct of Chibaya and Simango. Chibaya is accused of having willfully sold a property in Chikanga to Chikove, which he knew had ownership disputes.

Chikove claims that in April 2021 he approached Chibaya inquiring about a residential stand 1521 in Chikanga Phase One. Chibaya told him that the stand was up for sale and he was in possession of the original title deeds. Chibaya told him the stand which measures 312 square metres was being sold US$13 000.

After agreeing on the deal and making a down payment of US$9000 to Chibaya, Chikove was referred to Simango whom he introduced as a colleague that would do the agreement of sale on his behalf. Chikove said he also paid US$250 to Chibaya for the agreement of sale and was instructed to also pay an additional US$50 to Simango.

The agreement of sale was then crafted by Simango. Chikove says he later paid the US$4000 balance within three months as had been contracted in the agreement of sale. He paid the installments through Mupindu Legal Practitioners, who had been left as the caretaker in the deal.

In January 2022, Simango is said to have prepared the transfer papers and Chikove started building his four bed-roomed house at the stand after being given assurance by Simango that everything was in order. However, in February 2022 he was surprised to see Joseph Ngorima come to the stand, claiming it was his stand. By that time construction had reached window level.

The concerned parties tried to settle the matter amicably out of court between February and July 2022, but there was no resolve, which pressed Chikove to report the matter to the LSZ for recourse.

Magorokosho-Musimwa said the next step is for the Law Society Council, on recommendation from the Disciplinary and Ethics Committee (DEC) to consider the mitigation submitted by the two lawyers then they decide on an appropriate sentence which ranges from a caution to a fine of up to US$1000 or equivalent.

“The LSZ’s decision is not equivalent to a civil judgement. The Complainant can however approach the civil courts for a civil remedy. In so doing, one can utilise the conviction by the LSZ Council (already communicated to the complainant) to commence the relevant civil suit.  The civil processes I have referred to above do not necessarily have to be commenced after the sentencing by Council, the complainant is thus at liberty to commence these processes any time after receipt of the notification of the council conviction that we sent,” said Magorokosho-Musimwa.

Chikove said he is now planning on approaching the Mutare High Court to recover his money from Chibaya. Magorokosho-Musimwa added that in the event that Chibaya fails to pay what is ‘legally’ due to Chikove, the LSZ compensation fund is the payer of last resort.

“If upon obtaining a court order against the accused and the Sheriff fails to satisfy the judgment, the complainant can apply for compensation. The compensation fund will pay an amount determined by the Council having considered the actual prejudice suffered by the complainant,” she said.

Chikove said he never expected to get duped by lawyers. “I do not know what this world is coming to. I never expected being duped by lawyers. I had heard of double sale scams but I thought it was the brokers or dealers that connived, and not a lawyer actually being the mastermind to fraud. Justice has to be served,” said Chikove.

Chikove nonetheless said, regardless of the investigations which were ongoing, Chibaya had so far secretly settled US$13000 paid for the stand.

He said in his civil lawsuit he is now pursuing US$14 700 spent on construction and other expenses up to window level of the stand. “He (Chibaya) might have denied everything to the Law Society of Zimbabwe in his defense response, but he paid me back my US$13 000 for the stand in installments which he completed in November last year. What is left now is the US$14 700 reimbursement that I spent on construction material and labour up to window level and other minor expenses relating to this matter, but Chibaya has been unyielding to pay this,” said Chikove who produced the receipts of the payment to this reporter.

The money is said to have been paid in the presence of four lawyers (Names withheld) from different law firms in Mutare that intermediated on the matter. “All I want is my full reimbursement so that I can move on with my life. I have already lost out because I would have been a property owner by now if he had not scammed me, but up-to-date I am still renting because of him,” fumed Chikove.

The LSZ executive secretary Edward Mapara is on record to say that the rise in cases involving errant lawyers is now worrisome. Mapara says the LSZ has however started the process of reviewing disciplinary procedures in order to swiftly deal with complaints brought by ordinary people against misbehaving lawyers. The consequences of disciplinary procedures for lawyers are fines, suspension or disbarment, respectively, depending on the gravity of the matter.

According to the LSZ, since 1997 up-to-date, the LSZ has deregistered 71 lawyers in total for unprofessional conduct, whilst of late as of April, in 2024 alone, four lawyers have been disbarred by the self-governing body.