SAKALA,
J. AND MUMBA, J.,
This is an
application by way of a recommendation to the court by the
Disciplinary Committee (hereinafter called the Committee)
established under section four of the legal Practitioners Act No.
22 of 1973. The Disciplinary Committee found at a serious
case of
misconduct had been made out on the part of the practitioner
unbefitting a member of the legal profession. The
Committee
recommended that the name of the practitioner be struck off the
roll of practitioners.
FACTS NOT IN
DISPUTE
The practitioner
was employed as a corporation lawyer by the Rural Development
Corporation holding a practising certificate
No. 2093. On 14th
July 1977, the practitioner appeared before the subordinate court
of the first class for the Lusaka District
charged with six
counts of theft by public servant contrary to sections 272 and
277 of the Penal Code, cap. 146 as amended
by Act No. 29 of 1974.
The six offences were committed on different dates, between 28th
October, 1976 and 3rd March, 1977.
The total amount stolen was
K2,183.00. The practitioner, who was represented, pleaded not
guilty to all the six counts.
On 15th
November, 1977, the trial commenced. After the prosecution called
three witnesses the case was adjourned to 29th
November, 1977,
for continued hearing. Before the trial commenced on 9th
February, 1978, there had been several adjournments
at the
instance of the defence. The resumed trial started with the
cross-examination of PW3 at the end of which the defence
applied
for an adjournment. From the 9th of February, 1978, the case was
adjourned on eleven occasions again at the instance
of the
defence. On 13th July, 1978, when the trial resumed, the defence
counsel informed the court that his instructions
were to change
the plea. Fresh pleas were taken on five counts and the accused
pleaded guilty to all the five counts. The
court entered pleas of
guilty on all the counts and convicted the practitioner on all
counts after admitting the facts
as per evidence as correct.
THE
SENTENCE
Before the
practitioner was sentenced his advocate made a very passionate
and lengthy plea in mitigation. The court, before
sentencing the
accused observed:
"The
accused is a first offender who is entitled to leniency. He has
pleaded guilty to five counts of theft by public
servant. After
pleading guilty the accused has since repaid the monies back to
his employers. I take into account what
the learned counsel for
p50
the
defence has ably said in mitigation. Mr Gani has asked for
suspended sentence for reasons that he set out in his plea
in
mitigation one of these reasons was that the accused was guilty
only by reasons of technicality due to the wide definition
of
theft as regards monies. It has been contended that the accused
had an intention to repay the money and indeed he has
repaid the
money. Unfortunately the facts do not seem to agree with this
submission. The accused first stole in October,
1976, in
March,1977 and then finally in July, 1977. There was no attempt
on the part of the accused to repay any money.
He repaid after
the matter was before court. The accused is a Lawyer by
profession and I have no doubt he is aware of the
criminal law of
this country. As Mr Gani in my view rightly put it the accused
behaved in rash and foolish manner.
The
Corporation's client was harassed from non-payment of her
instalments when she had in fact paid, this was a very bad
thing.
I would have been inclined to impose a suspended sentence had the
accused been charged with only one count. But
in this case, there
are five counts against the accused and it appears to me that he
had reached stage when he was taking
money just as he wanted. I
do not consider that a suspended sentence would be appropriate.
But in view of the fact that
the accused now stands ruined man
through his own folly because with these convictions he may find
it difficult to practice
his profession and the fact that he has
now repaid all the proposed money, I propose to be lenient."
Thereafter the
court sentenced the practitioner to one year imprisonment with
hard labour on each count to run concurrently
making the total
sentence to be served to be one year with six months of it
suspended.
THE
DISCIPLINARY PROCEEDINGS BEFORE THE COMMITTEE
On
23rd June, 1981, the Honorary Secretary of the Legal
practitioners Committee of the Law Association of Zambia applied
to the Disciplinary Committee to have,
inter alia, the name of the
practitioner struck out of the roll of practitioners. The
application was supported by an affidavit. The
affidavit states
that the practitioner was practising in Lusaka with the Rural
Development Corporation Ltd., holding
practising certificate No.
2093 and whilst acting in his professional capacity committed an
act of dishonesty namely,
theft by public servant for which he
was prosecuted and convicted and sentenced to imprisonment. The
affidavit exhibited
some correspondence indicating the various
attempts made by the Legal Practitioners Committee to obtain the
case records
but without success. Paragraphs 4, 5, 6 and 7 of the
affidavit in opposition read:
"(4)
That as to paragraph 3, I have this to say: I was indeed
prosecuted for theft of money by public servant, but
the
circumstances of such charge were that:
(a) the
money had been entrusted to me for payment to the cashier.
p51
(b) in
the normal course of duty, I handed this money to my secretary
for payment to the cashier.
(c) this
was the normal procedure in my office,
(d) unfortunately
that time the secretary failed to follow this procedure.
(e) as
a result the money was not accounted for.
(f) as
head of department I was made answerable for the default.
(g) and
in the ordinary circumstances I accepted responsibility and
therefore was prosecuted and convicted.
(h) I
accepted paying back the money involved and I did pay back.
(5) That in the
light of this the subordinate court felt obliged to pass only a
minimum sentence on me of six months simple
imprisonment.
(6) That my
prosecution and eventual conviction was strictly, on my
negligence in failing to effectively supervise my subordinates.
(7) That I did
not myself make personal use of the money."
On 12th July,
1982, the Disciplinary Committee heard the
application.Subsequently the Committee made a report which is on
record. Paragraphs 16, 17 and 18 of the report read:
"16
On these facts, we are unable to agree with the Practitioner's
contention that he was only found guilty by reason
of his
responsibility as a supervisor, in that he failed to ensure that
his subordinate officers paid over the money to
the appropriate
department.
17.
We have considered the provisions of s. 52 of Cap. 48 which
define certain offences by Practitioners and have come to
the
conclusion that the misconduct investigated herein does not form
part of such offences. Nevertheless, we are satisfied
that the
Committee is empowered to inquire into such forms of misconduct
by virtue of proviso (ii) to s. 53 of Cap. 48
which is as
follows:
(ii)
nothing in s. 52 shall restrict the powers of the Disciplinary
Committee under s. 22 to inquire into or deal with
misconduct
by Practitioners of whatsoever nature or kind, whether
mentioned in s. 52 or otherwise.
18.
We regard Mr Munungu's behaviour as unbefitting a member of the
Legal Profession and as likely to bring the Profession
into
ridicule or contempt."
After making
reference to Cordery's Law Relating to Solicitors, fourth edn. in
paras 19 and 20 of the Report, the Committee
said in paras 21 and
22 of the Report.
"21.
We are, therefore, satisfied that a case of misconduct has been
made out on the part of the practitioner and we
are of the
opinion that the present case is a serious instance of conduct
unbefitting member of the legal profession.
p52
22.
We do not consider that such misconduct may adequately be dealt
with by the Committee. Therefore, we recommend to the
Court that
the name of the Practitioner be removed from the Roll."
THE
HEARING OF THE REPORT BY THE HIGH COURT
On the 17th of
November, 1982, submissions were made before us in relation to
the Report presented by the Committee. On
behalf of the
Committee, the learned Solicitor - General pointed out that the
Committee submitted the Report to court in
accordance with the
provisions of s.22 of the Legal Practitioners Act because the
Committee was of the onion that the application
brought against
the practitioner was of such a serious nature that the Committee
was unable to dispose of the matter under
the powers vested in
it.
On behalf of the
practitioner, Mr Chuunga, submitted that in its report the
Committee did not consider other circumstances
pertaining to the
case for instance, change of plea from not guilty to one of
guilty.
Suffice is to
mention that Mr Chuunga tendered before us lengthy and detailed
submission which he said was made by his
client intended for the
Committee but mistakenly passed on by him to Mr Ndhlovu. Suffice
is also to mention that we have
read and considered the written
submissions tendered before us. On account of the view we take of
this matter, we find
it unnecessary to outline the written
submissions in our judgment. It is, however, on record.
THE LAW
The
research we have been able to conduct reveals that this appears
to be the first application of this kind to come up
before the
High Court. Section 52 of the Legal Practitioners Act sets out
the various offences that may be committed by
a practitioner in
the course of his practice. All these offences are deemed
professional misconduct (see
s. 53). Theft by a practitioner is not included in s. 52. But on
our part, we are satisfied that the proviso to s. 53 of
the Legal
Practitioner's Act is wide enough to cover theft as a misconduct.
In our view, to accept a suggestion that theft
by a practitioner
was not intended to be an offence to be dealt with under the
Legal Practitioners Act would lead to very
ridiculous happenings.
For instance, practitioner may commit any offence under the
Penal Code and because he has already
been convicted and punished
for those offences he may still be on the Roll and continue to
practice simply because the
Penal Code does not provide for the
punishment of striking off the Roll and simply because the Legal
Practitioners Act
does not provide for any offence under the
Penal Code. If this was the position then the Legal Profession
would not be
worth the honour it has earned over the centuries.
The
author of Cordery on Solicitors,
5th edition page 462 under the heading non-statutory grounds for
disciplinary action by the court or Disciplinary Committee,
sets
out three kinds of misconduct which
p53
makes a
solicitor unfit to continue in practice as: Criminal conduct,
professional misconduct and unprofessional conduct
and on the
same page under the heading criminal conduct the author states:
"Conviction
for a criminal offence, whether connected with his character as a
solicitor or not, and whether involving
money matters or not,
prima facie makes solicitor unfit to continue on the roll. His
name is struck off, not by way of
a second punishment, but
because he is not a proper person to be a solicitor.
This,
however, is not an inflexible rule, and the Court has, under
special circumstances, refused to act upon a conviction
for mere
conspiracy, and might equally refuse where the conviction is due
to carelessness, and has refused to strike a
solicitor's name off
the roll where previously to his conviction he had for the same
offence been merely suspended."
In
Re Weare (1
) Lord Esher at page 446 put the test as follows:
"Is
it a personally disgraceful offence or is it not? . . . Ought any
respectable solicitor to be called upon to enter
into that
intimate intercourse with (the offender) which is necessary
between two solicitors even though they are acting
for opposite
parties."
While mindful
that the circumstances of each case will be carefully considered
by the court, we are entirely in agreement
on the principles of
law set out above.
CONCLUSION
We have in the
present application considered the history and the circumstances
leading to the practitioner committing the
offences resulting the
present proceedings. In the first place, we regret that case
which ended by a plea of guilty before
the subordinate court
should have taken almost one year to dispose of. We note,
however, that; the delay was caused by
the defence. But in the
present proceedings we are not retrying the practitioner. Our
task is to determine on the undisputed
facts of the case that was
before the subordinate comb whether the conviction of the
practitioner on five counts of theft
by public servant does not
make him unfit to continue on the Roll? In other words, is he a
proper person to continue in
practice?
We have very
carefully and seriously considered the record of the case, the
application and the affidavits in support and
opposition as well
as the Report by the Disciplinary Committee. We are satisfied
that the practitioner's conduct is so
serious that it renders him
unfit to remain a member of the honourable legal profession. We
have further considered the
mitigation on his behalf. But
although this is the first case of this nature we consider that
for the sake of the profession
a deterrent punishment in the
circumstances of this case is called for. We, therefore, order
that the name of Bernard Mbaalala
Munungu, a practitioner, be off
struck the Roll of Practitioners.
Order
accordingly
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