LAW SOCIETY OF ZIMBABWE v Motsi (122 of 2025) [2025] ZWHHC 122 (3 March 2025)

1 HH 122 - 25 LPDT 3/21 LAW SOCIETY OF ZIMBABWE versus MUYENGWA ENDURANCE MOTSI HIGH COURT OF ZIMBABWE MANGOTA J with MUREMBA J (DEPUTY CHAIRPERSON), MR D. KANOKANGA & MRS S. MOYO (MEMBERS) HARARE; 5 April 2024 & 3 March 2025 N Chikowore, for the applicant Ms A Chihombori, for the respondent MANGOTA J: The applicant, Law Society of Zimbabwe, is a statutory body which is capable of suing and being sued in its own name. It is established in terms of section 51 of the Legal Practitioners Act (Chapter 27:07) (“the Act”). Its mandate is to regulate the legal profession in Zimbabwe. The applicant is moving the Legal Practitioners’ Disciplinary Tribunal to remove from its register of legal practitioners, conveyancers and notaries public the name of one Muyengwa Endurance Motsi (“Motsi”) who is the respondent in this application. It alleges that Motsi is guilty of unprofessional, dishonourable and unworthy conduct. Its motion is premised on two complaints which it received from: one Tariro Chikumbirike and one Robert Chikumbirike –andone Chalmers Denzil. Its allegations in respect of Tariro and Robert Chikumbirike are that the two represented a legal entity which is known as Comverol Enterprises in the sale of the latter’s property to one Peter Mauchi and one Florence Mauchi, the purchasers of the property. Motsi, it alleges, was engaged to attend to the transfer of the property from the seller to the purchaser. It claims that Peter and Florence Mauchi deposited the sum of USD 75 000 into Motsi’s trust account as purchase price for the property. Motsi, it avers, paid only USD 24 000 leaving a balance of USD 46 699 unaccounted for. The applicant alleges that it wrote to Motsi inquiring on the settlement of the debt which he owed to the sellers. It avers that it did so after it received the complaint from Tariro and Robert Chikumbirike. Motsi, it claims, did not respond to its letter. It, in the mentioned regard, accuses Motsi of being guilty of the following: withholding the payment of trust money in contravention of section 23 (1) (d) of the Act;failing to pay money which was deposited into his trust account when the same became payable in contravention of section 23 (1) ( c ) of the Act as read with By- Law 70 E and 70 F of the Law Society of Zimbabwe By-Laws, 1982.unreasonably neglecting or wilfully refusing to respond to correspondence from the applicant’s secretary in contravention of section 23 (1) (c) of the Act as read with By-Law 65 of the Law Society of Zimbabwe By-Laws, 1982. The applicant’s allegations in respect of the case of Chalmers Denzil (“Denzil”) are that Motsi represented a legal entity which is known as EBC Guerney Limited (“EBC”) in a debt collection suit which EBC successfully mounted against Denzil. EBC was granted an order for payment to it of the sum of USD 144 647.50. Following the order which was granted to it, EBC caused the immovable property of Denzil to be attached and sold into execution. The property was sold for USD 288 000 and the purchase price was deposited into Motsi’s trust account. The applicant alleges that, before the proceeds of the sale were disbursed to EBC, Denzil settled the judgment debt as a result of which the proceeds of the sale of the property became due to Denzil. It claims that, instead of paying the whole sum of USD 288 000 to Denzil, Motsi paid only the sum of USD 180 000 leaving a balance of USD 108 000 unaccounted for. Motsi, the allegation goes, entered into a debt settlement arrangement with Denzil in terms of which he (Motsi) assumed part of the debt which Denzil owed to a third party. The applicant avers that, although he undertook to settle the debt within a specified period of time, Motsi did not live up to his commitment. He, it alleges, failed to timeously respond to the applicant’s written communication on the matter. The applicant accuses Motsi of being guilty of the following matters in the mentioned regard: withholding payment of trust money without lawful excuse in contravention of section 23 (1) of the Act;failing to honour an acknowledgment of debt that had become due which conduct the applicant deems to be unprofessional in terms of section 23 (2) (b) of the Act;failing to pay money which was deposited into Motsi’s trust account in contravention of section 23 (1) ( c ) of the Act as read with By-Law 70 E and 70 F of the Law Society of Zimbabwe By-Law, 1982- andunreasonably neglecting or wilfully refusing to respond to correspondence from the applicant’s secretary in contravention of section 23(1)(c) of the Act as read with By-Law 65 of the Law Society of Zimbabwe By-Law, 1982. In his counter-statement, Motsi states, in respect of the complaint of Tariro and Robert Chikumbirike that the case was conclusively dealt with under case number LPDT 22/18. He raises a preliminary issue in regard to the second complaint. He alleged that the complainant does not have any cause of action against him. He avers that the complainant ceded his rights and interests to a third party namely Eurodollar Foreign Exchange (Pvt) Ltd. He insists that there is no complaint which lies before the applicant and/or the tribunal. He claims that the averments which were placed before the tribunal constitute inadmissible hearsay evidence. He alleges that the applicant is violating his constitutional rights when it seeks to enforce a civil obligation which has available remedies. He claims, on the merits and in respect of Denzil, that he did not enter into a debt acknowledgment with Denzil but with Eurodollar Foreign Exchange (Pvt) Ltd. This, he alleges, laid claim to the proceeds of the sale after Denzil defrauded it. He insists that he responded to the applicant’s letters. He, in the mentioned regard, makes reference to his Annexure DC9. He states that Denzil confirms that one Samson Nhanhanga did, on 17 July 2013, sue his law firm amongst other parties. He avers that he could not dispose of the money because the case was subjudice. He alleges that Denzil’s pressure to have the money released to the latter rested on the allegation that Denzil wanted to defraud Eurodollar Foreign Exchange (Pvt) Ltd to whom Denzil had ceded the same property on 22 April, 2014. The cession occurred when the property had, according to him, already been disposed of. He insists that the money belongs to Eurodollar Foreign Exchange (Pvt) Ltd and not to Denzil. He states that the money could not be released when litigation was pending under HC 5831/13. He denies that the proceeds of the sale were due to Denzil. He alleges that Eurodollar Foreign Exchange (Pvt) Ltd laid claim to the proceeds of the sale when Denzil defrauded it. He challenges the contents of Annexure DC1. Eurodollar Foreign Exchange (Pvt) Ltd, he avers, has not complained against him. He states that, immediately upon settlement of the judgment debt, Samson Nhanhanga sued Denzil, him and others under HC 5831/13. He alleges that Denzil and him made every effort to save the property from execution. He states that, whilst HC 5831/13 was in progress, Eurodollar Foreign Exchange (Pvt) Ltd laid claim to the proceeds of the sale of the immovable property. It did so through Messrs Costa and Madzonga legal practitioners, according to him. He alleges that he acceded to the payment of USD 50 000 to Venturas & Samkange Legal Practitioners. He states that he paid the stated sum of money with a view to retrieving the property’s title deed which Denzil had lodged with the law firm in an effort to dispose of the property to the detriment of Samson Nhanhanga and Eurodollar Foreign Exchange (Pvt) Ltd to whom Denzil had ceded the property. He alleges that Denzel’s demands resulted in a further payment to him of USD 130 000 which sum was, in fact, due to Eurodollar Foreign Exchange (Pvt) Ltd to whom Denzel had ceded the sum. He denies and challenges the assertion which relates to misappropriation of trust money by him. He alleges that he explained his conduct fully to the applicant as well as to Zimbabwe Republic Police. He refers the tribunal to Annexure F-Q which, he claims, explain that his conduct was/is above board. He avers that he had the obligation to pay USD 108 000 to Eurodollar Foreign Exchange (Pvt) Ltd. He alleges that Eurodollar Foreign Exchange (Pvt) Ltd and him arranged between them to settle the stated sum of money. This, according to him, resulted in an acknowledgment of debt which he wrote in favour of Eurodollar Foreign Exchange (Pvt) Ltd. He alleges that, in the interim, Afrasia failed to restitute a debt which was due to Hours of Freedom (Pvt) Ltd which was/is owed by one Stead. The failure to pay restitution, he claims, remained on the cards until Afrasia went into liquidation. He avers that he went out of his way to regularize the anomaly whilst he was waiting for Mr Stead to pay the outstanding amount. This, he claims, resulted in the disposal of his asset which was in South Africa. He refers the tribunal to Annexures R- Z1 in the mentioned regard. He denies the allegation that he said he discharged the debt. He asserts that he partly discharged the debt through his own means and effort. He admits that judgment in the sum of USD 89 647.32 was entered against him. He states that he did not defend the suit because he intended to give comfort to Eurodollar Foreign Exchange (Pvt) Ltd as well as to reflect a commitment on his part to liquidate the outstanding amount. He moves the tribunal to dismiss the application with costs. Motsi’s defence to the first complaint would appear to be that of lis pendens or that of res judicata. For a plea of lis pendens to succeed, the defendant or respondent must show that the two matters are between the same parties or their successors in title concerning the same subject- matter and founded on the same complaint: Chigami 2 Syndicate & 2 Others v Cleo Brand Investments (Pvt) Ltd, HMA 14/20. Res judicata, as a defence, it is observed, is not different from the defence of lis pendens. A defendant or respondent who pleads the defence of res judicata must show that the two actions: are between the same parties;concern the same subject-matter; andare founded on the same cause of action: Flowerdale Investments (Pvt) Ltd v Bernard Construction (Pvt) Ltd. Motsi’s statement which is to the effect that the complaint of Tariro and Robert Chikumbirike was conclusively dealt with under LPDT 22/18 is a deliberate misrepresentation of facts. LPDT 3/21 which is before the Tribunal and LPDT 22/18 which was before the Tribunal then are two sides of one and the same coin, so to speak. In LPDT 22/18, the complainants are Peter and Florence Mauchi who purchased a property from Comverol Enterprises (Pvt) Ltd for USD 75 000. Motsi failed to transfer the property to the purchasers who gave him money for transfer fees and capital gains tax after they paid the purchase price in full. Motsi allegedly withheld USD 14535 which the purchasers instructed him to pay to the Zimbabwe Revenue Authority (ZIMRA) for him to obtain a capital gains tax clearance certificate. In LPDT 3/21, the complainants are Tariro and Robert Chikumbirike who represented Comverol Enterprises (Pvt) Ltd in the sale of its property to Peter and Florence Mauchi for USD 75 000 which the purchasers deposited into Motsi’s trust account. Motsi paid to the sellers only USD 24 000 leaving the balance of USD 46 000 unaccounted for. Motsi’s defence in respect of the first complaint is therefore not only misleading. It is also a clear lie on his part. Neither defence remains available to Motsi in respect of the first count. He cannot, in other words, successfully plead the defence of lis pendens and/or that of res judicata. Those defences remain unavailable to him. Whilst the parties remain the same in the reverse, the cause of action in one case is different from the cause of action in the other. Not only is that the case, the complainants in LPDT 22/18 are not the same as those who are in LPDT 3/21. Apart from the lie which Motsi told in respect of the first complaint, Motsi, it would appear, does not have any defence to the complaint which Tariro and Robert Chikumbirike lodged against him with the applicant. He said nothing about the allegation that he unreasonably neglected or wilfully refused to respond to correspondence from the applicant in contravention of section 23{c} of the Act as read with By-Law 65 of the applicant’s By-Laws, 1982. The trite position of the law is that what is not denied in affidavit(s) is taken as having been admitted: Fawcett Security Operations v Director of Customs & Excise, 1993 (2) ZLR 121 (SC); DD Transport v Abbot, 1988 (2) 92. It goes without saying therefore that Motsi contravened section 23 {c} of the Act as read with the applicant’s By-Law 65. The net effect of the above-analysed set of matters shows that Motsi cannot escape the charges which the applicant preferred against him in respect of the first complaint. He, on his part, made the situation worse for himself than it otherwise would have been. He did not appear before the Tribunal to defend himself when the Tribunal heard the complaints which had been lodged against him. He received notice of set down of the application and he chose not to appear. He advanced no reason for his non-appearance before the Tribunal. He did not make any effort to defend his position. His non-appearance leaves the second complaint which the applicant filed against him hanging in the balance, so to speak. The complaint of Denzel is relevant. The allegation that the respondent withheld without lawful excuse Denzel’s USD 108 000 which he held in trust for the latter is not without merit. The very essence of a trust is the absence of risk. It is therefore imperative that trust moneys which is in the possession of an attorney should be availed to his (includes her) client the moment they become payable. They are generally payable before and not after demand: Incorporated Law Society of the Transvaal v Visse & Others, 1958 (SA) 115 at 118, The point which was enunciated in the cited case authority was stated with considerable clarity in Law Society, Transvaal v Matthews, 1989 (4) SA 389 in which it was stated that: “……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 account is the absence of risk. It is imperative that trust money should be available to his client the instant it becomes payable” Applying the above-mentioned principles to the circumstances of this case, there is no doubt that the respondent held the sum of USD 288 000 in trust for Denzel. All things being equal, he should have availed the stated sum of money to Denzel who discharged his obligations to the respondent’s client, EBC in full before proceeds of the sale of his immovable property had been disbursed. Motsi, as the record reveals, paid USD 130 000 to Denzil and a further USD 50 000 to Messrs Venturas & Samkange Legal Practitioners on the instructions of Denzil. He remained with USD 108 000 which he did not account for from the date the sum was due and payable to date. He has no explanation for his continued possession of the stated sum. As the applicant correctly states, the money which came out of the proceeds of the sale of Denzil’s house belonged to no one else but to Denzil. His property had been sold to satisfy the debt which Denzil owed to EBC which engaged the respondent to recover the same from Denzil. It stands to good logic and reason that, when Denzil paid the debt which he owed in full, the respondent’s mandate ceased to exist. He had been engaged by EBC only to recover its debt from Denzil. The respondent’s flirtation with Eurodollar Foreign Exchange (Pvt) Ltd (“Eurodollar”) was a clear frolic of the respondent. He was not the agent of Eurodollar. He was the agent of no one else but EBC. He, therefore, held the money which resulted from the sale of Denzil’s property in trust for, and on behalf of, Denzel. He had every duty to account to Denzel that sum of money and not to Eurodollar. This is a fortiori the case when regard is had to the fact that he was not the agent of Eurodollar. It is the view of the Tribunal that the respondent raises the issue of Eurodollar as a way of extricating himself from the hook, so to speak. He cannot extricate himself from the fraud which he consciously committed by roping into the equation Eurodollar which did not give a mandate to him to protect its interests. The fact that Eurodollar and Denzel entered into an acknowledgment of debt, Annexure E 1, and subsequently in a deed of cession in terms of which Denzil ceded his two properties- one of which is the subject matter of Denzil’s complaint, Annexure E 10-is to all intents and purposes none of the respondent’s business. The two agreements do not allow him to remain in the equation of the two contracting parties. He is an outsider to them and is regarded as such by the law. All what he should have done was to deposit the sum of USD 238 000 to Denzil’s Legal Practitioners, Messrs Zinyengere Rupapa after he had paid the sum of USD 50 000 to Messrs Venturas & Samkange on the instructions of Denzel. The proceeds of the sale of Denzil’s property were trust funds. They were therefore to be dealt with in the manner that Denzil contemplated. They were due to Denzil who was entitled to the same on account of the fact that he had satisfied the judgment debt in full before proceeds of the sale of his property had been disbursed. The respondent’s conduct was, in view of the above-analysed set of circumstances, not only unprofessional. It was also dishonourable and totally unworthy of a legal practitioner. In each of the two complaints which were filed against him, the applicant wrote requesting the respondent to respond to the allegations which had been lodged against him. The respondent failed to respond to letters which the applicant wrote to him. The record shows that, on 16 December 2015, the applicant wrote inviting the respondent to update it on whether or not he conclusively dealt with the case of Robert and Tariro Chikumbirike. Reference is made in the mentioned regard to Annexure H which appears at page 38 of the record. The record shows further that, on 22 September 2020 and in respect of the second complaint, the applicant emailed the respondent whom it requested to comment on the matter before its transmission of the same to the Disciplinary and Ethics Committee. Reference is made to Annexure J which is at page 42 of the record. There is no evidence which is filed of record to show that the respondent responded to the above-mentioned two annexures. It is therefore not inappropriate for the applicant to state, as it is doing, that the respondent contravened section 23 (1)(c) of the Act as read with By-Law 65 of the applicant’s By-Laws, 1982. The preliminary points which the respondent raised have no merit. He, it would appear, raised them just for the sake of saying something. He knows as much as anyone who is in the field of law does that, as the regulator of the legal profession, the applicant has every right to summarise the contents of allegations which complainants level against its members, himself included. His assertion which is to the effect that the applicant gave hearsay, and therefore, inadmissible evidence when all what it did was to spell out what was being levelled against him for his own benefit only goes to show the desperation which worked his mind when he laboured to extricate himself from the evidence which was mounting against him. His failure to honour the acknowledgement of debt which was intricately connected to abuse of trust funds brings the status and integrity of the legal profession into serious disrepute. His statement which is to the effect that Denzil has no cause of action against him is difficult, if not impossible, to countenance. He withheld Denzil’s USD 108 000 from the date that it was due to be paid to date. He has no valid explanation for his conduct in the mentioned regard. He cannot be heard to suggest that Denzil has no cause of action against him when he withheld USD 108 000 which is due to Denzil. The Tribunal has considered all the circumstances of the case of the complainants. It is satisfied that the applicant proved its case against the respondent in respect of both complaints. The Tribunal therefore finds the respondent guilty of both complaints as charged. SENTENCE Following the conviction of the respondent, we directed him and the applicant to file their written submissions in mitigation and aggravation of sentence respectively. The registrar of the Tribunal wrote to the parties on 18 October, 2024 under reference LPDT 3/21. According to the aforesaid letter, the respondent was to file and serve upon the applicant his written submissions on 25 October, 2024. The applicant, as per the contents of the letter, was to file and serve upon the respondent, its submissions in aggravation on or before 1 November, 2024. The Tribunal was to hand down sentence on 15 November, 2024. Because none of the parties was able to meet the above-mentioned timelines as had been directed, the Tribunal decided to deliver its sentence on 25 November, 2024. The respondent who is expected to have been more eager than otherwise to persuade us to look at his case with favour did not file anything from the date of his conviction to date. The reasons for his inaction remain largely unknown to us. The applicant missed the deadline of 1 November, 2024. It only filed its submissions in aggravation of sentence on 4 November, 2024. It offered no explanation at all for the delay which occasioned its late filing of its submissions in aggravation. Our assumption is that it was waiting for the respondent to serve upon it his written submissions in mitigation of sentence as it had to reply to those. The above-observed issues notwithstanding, the respondent’s non-submission of his statement in mitigation of sentence shall not detract us from dealing with his case to its final conclusion. Whilst we are not aware of the reasons which persuaded the respondent not to file his written submissions in mitigation of sentence as he should have done, the letter which Messrs Sibanda & Partners wrote to the Tribunal on 8 April, 2024 appears, in our view, to have misled the respondent into not mitigating in respect of the sentence which is to be imposed on him. The contents of the letter are relevant. It reads, in extenso, as follows: “RE: LAW SOCIETY OF ZIMBABWE v MUYENGWA ENDURANCE MOTSI LPDT 3/21 We refer to the above matter particularly to the Honourable Judge Muremba’s directive that parties file their submissions in mitigation and aggravation. We write to bring to the Honourable Judge’s attention that the Respondent is no longer, pursuant to the judgment of this court of the 29th of December 2023, a registered legal practitioner and a member of the Applicant. Find attached hereto a copy of the judgment. Our considered view on the consequences of the aforesaid judgment is that any proceedings and judgment against the Respondent post the attached judgment will be irregular and brutum fulmen respectively. We therefore deemed it prudent to bring the above developments to the Honourable Tribunal’s attention for its consideration” That the respondent was tried, convicted and sentenced under LPDT 22/18 is a reality which cannot be ignored. The reality that the respondent was tried and convicted in the present matter (LPDT 3/21) cannot similarly be swept under the carpet or wished away. We therefore disagree with the author of the letter who states that judgment against the respondent post the conclusion of LPDT 22/18 is an irregularity. The present matter (LPDT 3/21) is a stand-alone case which should not be subsumed under LPDT 22/18. The two cases are markedly different the one from the other. Each has its own set of facts which are peculiar to it. The respondent should therefore be punished for his unwholesome conduct for which he was convicted under LPDT 3/21. The process which brought about his conviction is real. It cannot be brushed aside without doing an injustice to the complainants who invited the Tribunal, through the applicant, to be vindicated. LPDT 3/21 should therefore be brought to its final conclusion. The contents of the letter of 8 April, 2024 are synonymous with the fallacious argument which is to the effect that a convict whom the court convicted in a previous case should not be convicted let alone punished for his misdeeds in a second case. If the argument were to be allowed to hold, as the letter suggests, then many offenders who offend for the second or third time would go scot-free making the issue of justice delivery a mockery by all and sundry. It is for the mentioned reasons, if for no other, that we remain of the view that no irregularity comes into play when we proceed, as we should, to punish the respondent for his misconduct. Owing to poor advice from counsel, the respondent, it has been observed, did not file his submissions in mitigation of sentence. The question which begs the answer is: shall we, as a Tribunal proceed to punish him without hearing what he has to say in mitigation of sentence. The answer is definitely in the affirmative. In the affirmative because we gave him the time to mitigate and he failed to do so. We invited him, through correspondence, to do so and he spurned our invitation. We cannot wait for him for an indefinite period of time. He, as we have already stated, should have mitigated as soon as the fact of his conviction was communicated to him. The applicant failed to live within the dies for a number of days because it was waiting for him to start the ball rolling. He cannot have his cake and eat it. He should, in the circumstances of the case, suffer for the sins of his own legal representatives. The ball is not with them. It is with him. It is him, and not them, whom the law is enjoined to punish. We cannot state that we have nothing which we may consider in mitigation of sentence which we shall impose on the respondent. We, in terms of precedent, have the power and ability to refer to our own records. Reference is made in this regard to Mhungu v Mtindi, 1986 (2) ZLR 171 (SC) and Netone v Econet, SC 47/18. We are alive to the fact that the respondent made submissions in mitigation of sentence which the Tribunal imposed upon him under LPDT 22/18. Some of the factors which he stated in the case apply equally in his favour in the current case. They are therefore pertinent for our consideration in casu. We mention, in passing, that the principles which a judicial officer employs in considering the guilt or otherwise of an offender are very different from those which he employs when he is assessing the sentence which he shall impose on him. In the former set of principles, all what the judicial officer is required to do is to pay attention to the charge which has been levelled against the offender, the elements of the offence in particular. Where the evidence which has been led supports conviction of the offender in the sense that all the elements have been proved beyond reasonable doubt-in a criminal case- or on a preponderance of probabilities in a case such as was proved against the respondent, the judicial officer has no option but to convict. His duty is therefore less onerous than otherwise because what he only does is to compare and assess the evidence which has been led and measure the same against the elements of the offence which are contained in some written law. Assessment of sentence is a different ball-game altogether. Other than comparing the mitigating and aggravating features of the case which is before him, the judicial officer has nothing which guides him as to the sentence which he must impose. He, by and large, has to rely on his value judgment. He, in short, has to strike a balance between two competing interests. These are the interests of the offender, on the one hand and those of society, as represented by the prosecutor in a criminal case, or by the applicant in a group of professionals such as the respondent was a member, on the other. The balancing act is more often than not informed by such factors as the views of the general public which cannot be divorced from the conduct of an errant professional and the views of members of a particular professional group. These are measured against such matters as the attitude of the offender to the misconduct, whether or not he is remorseful for his misdeeds, whether or not he paid, or is prepared to pay, compensation to his victim(s) where such is warranted and/or whether or not he is a repeat offender. The list remains endless. Each case depends on circumstances which are specific to it. Precedent also assists in matters of the present nature. One such precedent is found in Law Society of Zimbabwe v Lloyd Manokore, HH 167/21. The case offers an insight into the approach which we must take in our effort to arrive at a sentence which is commensurate with the respondent’s conduct. It outlines the factors which we must consider in our onerous task of assessing the sentence which we must impose. The factors, according to it, comprise: the need to uphold public confidence in the administration of justice;safeguarding the collective interest in upholding the standard of the legal profession;punishment of the errant legal practitioner for his misconduct- and/orsetting standards to be observed by other legal practitioners and, in the process, deterring against similar conduct by like-minded legal practitioners. What comes out of the above-cited case authority is simple and straightforward. The case stresses that a legal practitioner must be a man or woman of unquestionable character. He (includes she) should observe a very high standard of ethics as well as behaviour both in, and out of, court. In and out of court for the simple reason that he is first and foremost an officer of the court. It is to the court more than to anything else that he owes the duty of being a diligent and honest member in the family of his colleagues who, together with him, are members of the learned profession. A learned man should not steal from those whom he represents. He should, therefore, be of an impeccable character both in his practice and out of it. He should not open himself to question or doubt by those whom he agreed to represent. Chizikani v Law Society of Zimbabwe, 1994(1) ZLR 382 shows the serious disdain with which the court views the conduct of an errant legal practitioner. The case authority, stresses at page 390, that: “……lawyers as a professional class live by their own high code of ethics and their own moral standards. Every legal practitioner owes a duty to his colleagues to uphold those standards of the profession to which he belongs. ….if legal practitioners, as a professional group, are to earn a respected position as guardians not only of public, but also of private interest, then every legal practitioner must live up to the principles of decency in the relationship of a trustee to the goods and monies entrusted to him by the person who has sought his protection. A legal practitioner who breaches this trust casts a shadow on the good name of the rest and also remains a danger to the unsuspecting public….” We remain constrained to dilute the wise words of the court by adding to, or subtracting from, them any matter. The case authority lays down parameters out of which any member of the legal profession may choose to leave at his own peril. The respondent’s half-hearted approach to his case is not only unfortunate. It is also uncalled for. He submitted what he terms his statement in mitigation of sentence only on 13 November, 2024 and not on 25 October, 2024 as we had directed him to do. The statement, which is by no means anything which falls in the area of mitigation, is totally misplaced. It seeks to move us to dismiss the charge upon which he was convicted earlier than his current motion. He does not tell us the manner in which we are able to undo what we did prior to the said statement which he filed at the twilight part of the case. We disposed of the stated aspect of the case in the foregoing paragraphs of these reasons when we considered the letter which his counsel wrote to us on 8 April, 2024. As we stated in the foregoing paragraphs of these reasons, factors which favour the respondent are easily gleaned from the submissions which he made to the Tribunal under LPDT 22/18. These are that: the respondent maintained an unblemished record for twenty-seven (27) years running;his removal from the register of legal practitioners, conveyancers and notaries public placed a stigma on him;the stigma, unless successfully appealed against, remains with him for the remaining part of his life on planet earth- andhis de-registration deprived him of his source of income for his dependants, if any, as well as for himself. The applicant moves us to remove the respondent from the register of legal practitioners, conveyancers and notaries public for the second time. It submits that what he did qualifies for nothing else other than his de-registration. It referred us to a number of cases in which legal practitioners who embezzled the money which was entrusted to them were removed from the register. Among such cases is that of Muskwe v Law Society of Zimbabwe, SC 70/20 in which the Supreme Court confirmed the decision of the Tribunal which de- registered the appellant who abused his client’s USD 68 411. The other case is that of Law Society of Zimbabwe v Kamdefwere, HH 271/21 in which the Tribunal removed from the register of legal practitioners, conveyancers and notaries public the respondent who misappropriated trust funds in the sum of USD 49 690.39. The applicant submits that only when appropriate penalties are meted out will the integrity of the legal profession be preserved. We agree. The respondent misappropriated trust money which belonged to Comverol Enterprises (Pvt) Ltd and a further sum which belonged to Chalmers Denzil. In the first case, he swindled his victim of USD 46 688 and in the second case he stole from his victim the sum of USD 108 000 making the total sum that he stole from his two victims to add up to USD 154 688. The fact that his victims recovered nothing from him weighs very heavily against him. He, on his part, has not offered to re-pay what he stole from them. Nor did he re-pay anything to any one of them. All he is persuading us to do is to wash him clean, as it were. He does so in a belated manner unfortunately for him. He should not be allowed to entertain the view that crime, of whatever nature, pays as he seems to suggest in his statement under mitigation of sentence. The fact of the matter is that it does not pay. There is no evidence that he stole out of need. The logical conclusion which is reached is that he stole out of greed. His moral turpitude is high in the extreme sense of the word. What he did tarnishes the name of the profession to which he was a member. It cannot be condoned let alone accepted at all. He is a real danger not only to the unsuspecting public but also to members of the legal fraternity. Nothing short of de-registration does, in our view, meet the justice of the present case. The punishment which the Tribunal meted out on him in LPDT 22/18 is the maximum which the Tribunal is able to impose on such an errant legal practitioner as he is. He will, in the circumstances of the case, receive the same sentence as was passed on him in LPDT 22/18. We can, in this case, do no better than borrow the wisdom of, MUSAKWA JA, who, in Law Society of Zimbabwe v Muyengwa Endurance Motsi, LPDT 22/18 observed the following of the respondent: “The cumulative conduct of the respondent is such that he is not a fit and proper person to continue practising law. What is sought to be achieved is to protect the interests of the public in its dealings with an errant legal practitioner. De-registration is warranted in the circumstances of this case.” We, accordingly, order as follows: In terms of Section 28 (1)(c)(i) of the Legal Practitioners Act (Chapter 27:07), the respondent’s name be and is hereby deleted from the register of legal practitioners, conveyancers and notaries public.The respondent be and is hereby ordered to pay the expenses the applicant incurred 1 HH 122 - 25 LPDT 3/21 1 HH 122 - 25 LPDT 3/21 1 HH 122 - 25 LPDT 3/21 LAW SOCIETY OF ZIMBABWE versus MUYENGWA ENDURANCE MOTSI HIGH COURT OF ZIMBABWE MANGOTA J with MUREMBA J (DEPUTY CHAIRPERSON), MR D. KANOKANGA & MRS S. MOYO (MEMBERS) HARARE; 5 April 2024 & 3 March 2025 N Chikowore, for the applicant Ms A Chihombori, for the respondent MANGOTA J: The applicant, Law Society of Zimbabwe, is a statutory body which is capable of suing and being sued in its own name. It is established in terms of section 51 of the Legal Practitioners Act (Chapter 27:07) (“the Act”). Its mandate is to regulate the legal profession in Zimbabwe. The applicant is moving the Legal Practitioners’ Disciplinary Tribunal to remove from its register of legal practitioners, conveyancers and notaries public the name of one Muyengwa Endurance Motsi (“Motsi”) who is the respondent in this application. It alleges that Motsi is guilty of unprofessional, dishonourable and unworthy conduct. Its motion is premised on two complaints which it received from: one Tariro Chikumbirike and one Robert Chikumbirike –andone Chalmers Denzil. Its allegations in respect of Tariro and Robert Chikumbirike are that the two represented a legal entity which is known as Comverol Enterprises in the sale of the latter’s property to one Peter Mauchi and one Florence Mauchi, the purchasers of the property. Motsi, it alleges, was engaged to attend to the transfer of the property from the seller to the purchaser. It claims that Peter and Florence Mauchi deposited the sum of USD 75 000 into Motsi’s trust account as purchase price for the property. Motsi, it avers, paid only USD 24 000 leaving a balance of USD 46 699 unaccounted for. The applicant alleges that it wrote to Motsi inquiring on the settlement of the debt which he owed to the sellers. It avers that it did so after it received the complaint from Tariro and Robert Chikumbirike. Motsi, it claims, did not respond to its letter. It, in the mentioned regard, accuses Motsi of being guilty of the following: LAW SOCIETY OF ZIMBABWE versus MUYENGWA ENDURANCE MOTSI HIGH COURT OF ZIMBABWE MANGOTA J with MUREMBA J (DEPUTY CHAIRPERSON), MR D. KANOKANGA & MRS S. MOYO (MEMBERS) HARARE; 5 April 2024 & 3 March 2025 N Chikowore, for the applicant Ms A Chihombori, for the respondent MANGOTA J: The applicant, Law Society of Zimbabwe, is a statutory body which is capable of suing and being sued in its own name. It is established in terms of section 51 of the Legal Practitioners Act (Chapter 27:07) (“the Act”). Its mandate is to regulate the legal profession in Zimbabwe. The applicant is moving the Legal Practitioners’ Disciplinary Tribunal to remove from its register of legal practitioners, conveyancers and notaries public the name of one Muyengwa Endurance Motsi (“Motsi”) who is the respondent in this application. It alleges that Motsi is guilty of unprofessional, dishonourable and unworthy conduct. Its motion is premised on two complaints which it received from: one Tariro Chikumbirike and one Robert Chikumbirike –and one Chalmers Denzil. Its allegations in respect of Tariro and Robert Chikumbirike are that the two represented a legal entity which is known as Comverol Enterprises in the sale of the latter’s property to one Peter Mauchi and one Florence Mauchi, the purchasers of the property. Motsi, it alleges, was engaged to attend to the transfer of the property from the seller to the purchaser. It claims that Peter and Florence Mauchi deposited the sum of USD 75 000 into Motsi’s trust account as purchase price for the property. Motsi, it avers, paid only USD 24 000 leaving a balance of USD 46 699 unaccounted for. The applicant alleges that it wrote to Motsi inquiring on the settlement of the debt which he owed to the sellers. It avers that it did so after it received the complaint from Tariro and Robert Chikumbirike. Motsi, it claims, did not respond to its letter. It, in the mentioned regard, accuses Motsi of being guilty of the following: withholding the payment of trust money in contravention of section 23 (1) (d) of the Act; failing to pay money which was deposited into his trust account when the same became payable in contravention of section 23 (1) ( c ) of the Act as read with By- Law 70 E and 70 F of the Law Society of Zimbabwe By-Laws, 1982. unreasonably neglecting or wilfully refusing to respond to correspondence from the applicant’s secretary in contravention of section 23 (1) (c) of the Act as read with By-Law 65 of the Law Society of Zimbabwe By-Laws, 1982. The applicant’s allegations in respect of the case of Chalmers Denzil (“Denzil”) are that Motsi represented a legal entity which is known as EBC Guerney Limited (“EBC”) in a debt collection suit which EBC successfully mounted against Denzil. EBC was granted an order for payment to it of the sum of USD 144 647.50. Following the order which was granted to it, EBC caused the immovable property of Denzil to be attached and sold into execution. The property was sold for USD 288 000 and the purchase price was deposited into Motsi’s trust account. The applicant alleges that, before the proceeds of the sale were disbursed to EBC, Denzil settled the judgment debt as a result of which the proceeds of the sale of the property became due to Denzil. It claims that, instead of paying the whole sum of USD 288 000 to Denzil, Motsi paid only the sum of USD 180 000 leaving a balance of USD 108 000 unaccounted for. Motsi, the allegation goes, entered into a debt settlement arrangement with Denzil in terms of which he (Motsi) assumed part of the debt which Denzil owed to a third party. The applicant avers that, although he undertook to settle the debt within a specified period of time, Motsi did not live up to his commitment. He, it alleges, failed to timeously respond to the applicant’s written communication on the matter. The applicant accuses Motsi of being guilty of the following matters in the mentioned regard: withholding payment of trust money without lawful excuse in contravention of section 23 (1) of the Act; failing to honour an acknowledgment of debt that had become due which conduct the applicant deems to be unprofessional in terms of section 23 (2) (b) of the Act; failing to pay money which was deposited into Motsi’s trust account in contravention of section 23 (1) ( c ) of the Act as read with By-Law 70 E and 70 F of the Law Society of Zimbabwe By-Law, 1982- and unreasonably neglecting or wilfully refusing to respond to correspondence from the applicant’s secretary in contravention of section 23(1)(c) of the Act as read with By-Law 65 of the Law Society of Zimbabwe By-Law, 1982. In his counter-statement, Motsi states, in respect of the complaint of Tariro and Robert Chikumbirike that the case was conclusively dealt with under case number LPDT 22/18. He raises a preliminary issue in regard to the second complaint. He alleged that the complainant does not have any cause of action against him. He avers that the complainant ceded his rights and interests to a third party namely Eurodollar Foreign Exchange (Pvt) Ltd. He insists that there is no complaint which lies before the applicant and/or the tribunal. He claims that the averments which were placed before the tribunal constitute inadmissible hearsay evidence. He alleges that the applicant is violating his constitutional rights when it seeks to enforce a civil obligation which has available remedies. He claims, on the merits and in respect of Denzil, that he did not enter into a debt acknowledgment with Denzil but with Eurodollar Foreign Exchange (Pvt) Ltd. This, he alleges, laid claim to the proceeds of the sale after Denzil defrauded it. He insists that he responded to the applicant’s letters. He, in the mentioned regard, makes reference to his Annexure DC9. He states that Denzil confirms that one Samson Nhanhanga did, on 17 July 2013, sue his law firm amongst other parties. He avers that he could not dispose of the money because the case was subjudice. He alleges that Denzil’s pressure to have the money released to the latter rested on the allegation that Denzil wanted to defraud Eurodollar Foreign Exchange (Pvt) Ltd to whom Denzil had ceded the same property on 22 April, 2014. The cession occurred when the property had, according to him, already been disposed of. He insists that the money belongs to Eurodollar Foreign Exchange (Pvt) Ltd and not to Denzil. He states that the money could not be released when litigation was pending under HC 5831/13. He denies that the proceeds of the sale were due to Denzil. He alleges that Eurodollar Foreign Exchange (Pvt) Ltd laid claim to the proceeds of the sale when Denzil defrauded it. He challenges the contents of Annexure DC1. Eurodollar Foreign Exchange (Pvt) Ltd, he avers, has not complained against him. He states that, immediately upon settlement of the judgment debt, Samson Nhanhanga sued Denzil, him and others under HC 5831/13. He alleges that Denzil and him made every effort to save the property from execution. He states that, whilst HC 5831/13 was in progress, Eurodollar Foreign Exchange (Pvt) Ltd laid claim to the proceeds of the sale of the immovable property. It did so through Messrs Costa and Madzonga legal practitioners, according to him. He alleges that he acceded to the payment of USD 50 000 to Venturas & Samkange Legal Practitioners. He states that he paid the stated sum of money with a view to retrieving the property’s title deed which Denzil had lodged with the law firm in an effort to dispose of the property to the detriment of Samson Nhanhanga and Eurodollar Foreign Exchange (Pvt) Ltd to whom Denzil had ceded the property. He alleges that Denzel’s demands resulted in a further payment to him of USD 130 000 which sum was, in fact, due to Eurodollar Foreign Exchange (Pvt) Ltd to whom Denzel had ceded the sum. He denies and challenges the assertion which relates to misappropriation of trust money by him. He alleges that he explained his conduct fully to the applicant as well as to Zimbabwe Republic Police. He refers the tribunal to Annexure F-Q which, he claims, explain that his conduct was/is above board. He avers that he had the obligation to pay USD 108 000 to Eurodollar Foreign Exchange (Pvt) Ltd. He alleges that Eurodollar Foreign Exchange (Pvt) Ltd and him arranged between them to settle the stated sum of money. This, according to him, resulted in an acknowledgment of debt which he wrote in favour of Eurodollar Foreign Exchange (Pvt) Ltd. He alleges that, in the interim, Afrasia failed to restitute a debt which was due to Hours of Freedom (Pvt) Ltd which was/is owed by one Stead. The failure to pay restitution, he claims, remained on the cards until Afrasia went into liquidation. He avers that he went out of his way to regularize the anomaly whilst he was waiting for Mr Stead to pay the outstanding amount. This, he claims, resulted in the disposal of his asset which was in South Africa. He refers the tribunal to Annexures R- Z1 in the mentioned regard. He denies the allegation that he said he discharged the debt. He asserts that he partly discharged the debt through his own means and effort. He admits that judgment in the sum of USD 89 647.32 was entered against him. He states that he did not defend the suit because he intended to give comfort to Eurodollar Foreign Exchange (Pvt) Ltd as well as to reflect a commitment on his part to liquidate the outstanding amount. He moves the tribunal to dismiss the application with costs. Motsi’s defence to the first complaint would appear to be that of lis pendens or that of res judicata. For a plea of lis pendens to succeed, the defendant or respondent must show that the two matters are between the same parties or their successors in title concerning the same subject- matter and founded on the same complaint: Chigami 2 Syndicate & 2 Others v Cleo Brand Investments (Pvt) Ltd, HMA 14/20. Res judicata, as a defence, it is observed, is not different from the defence of lis pendens. A defendant or respondent who pleads the defence of res judicata must show that the two actions: are between the same parties; concern the same subject-matter; and are founded on the same cause of action: Flowerdale Investments (Pvt) Ltd v Bernard Construction (Pvt) Ltd. Motsi’s statement which is to the effect that the complaint of Tariro and Robert Chikumbirike was conclusively dealt with under LPDT 22/18 is a deliberate misrepresentation of facts. LPDT 3/21 which is before the Tribunal and LPDT 22/18 which was before the Tribunal then are two sides of one and the same coin, so to speak. In LPDT 22/18, the complainants are Peter and Florence Mauchi who purchased a property from Comverol Enterprises (Pvt) Ltd for USD 75 000. Motsi failed to transfer the property to the purchasers who gave him money for transfer fees and capital gains tax after they paid the purchase price in full. Motsi allegedly withheld USD 14535 which the purchasers instructed him to pay to the Zimbabwe Revenue Authority (ZIMRA) for him to obtain a capital gains tax clearance certificate. In LPDT 3/21, the complainants are Tariro and Robert Chikumbirike who represented Comverol Enterprises (Pvt) Ltd in the sale of its property to Peter and Florence Mauchi for USD 75 000 which the purchasers deposited into Motsi’s trust account. Motsi paid to the sellers only USD 24 000 leaving the balance of USD 46 000 unaccounted for. Motsi’s defence in respect of the first complaint is therefore not only misleading. It is also a clear lie on his part. Neither defence remains available to Motsi in respect of the first count. He cannot, in other words, successfully plead the defence of lis pendens and/or that of res judicata. Those defences remain unavailable to him. Whilst the parties remain the same in the reverse, the cause of action in one case is different from the cause of action in the other. Not only is that the case, the complainants in LPDT 22/18 are not the same as those who are in LPDT 3/21. Apart from the lie which Motsi told in respect of the first complaint, Motsi, it would appear, does not have any defence to the complaint which Tariro and Robert Chikumbirike lodged against him with the applicant. He said nothing about the allegation that he unreasonably neglected or wilfully refused to respond to correspondence from the applicant in contravention of section 23{c} of the Act as read with By-Law 65 of the applicant’s By-Laws, 1982. The trite position of the law is that what is not denied in affidavit(s) is taken as having been admitted: Fawcett Security Operations v Director of Customs & Excise, 1993 (2) ZLR 121 (SC); DD Transport v Abbot, 1988 (2) 92. It goes without saying therefore that Motsi contravened section 23 {c} of the Act as read with the applicant’s By-Law 65. The net effect of the above-analysed set of matters shows that Motsi cannot escape the charges which the applicant preferred against him in respect of the first complaint. He, on his part, made the situation worse for himself than it otherwise would have been. He did not appear before the Tribunal to defend himself when the Tribunal heard the complaints which had been lodged against him. He received notice of set down of the application and he chose not to appear. He advanced no reason for his non-appearance before the Tribunal. He did not make any effort to defend his position. His non-appearance leaves the second complaint which the applicant filed against him hanging in the balance, so to speak. The complaint of Denzel is relevant. The allegation that the respondent withheld without lawful excuse Denzel’s USD 108 000 which he held in trust for the latter is not without merit. The very essence of a trust is the absence of risk. It is therefore imperative that trust moneys which is in the possession of an attorney should be availed to his (includes her) client the moment they become payable. They are generally payable before and not after demand: Incorporated Law Society of the Transvaal v Visse & Others, 1958 (SA) 115 at 118, The point which was enunciated in the cited case authority was stated with considerable clarity in Law Society, Transvaal v Matthews, 1989 (4) SA 389 in which it was stated that: “……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 account is the absence of risk. It is imperative that trust money should be available to his client the instant it becomes payable” Applying the above-mentioned principles to the circumstances of this case, there is no doubt that the respondent held the sum of USD 288 000 in trust for Denzel. All things being equal, he should have availed the stated sum of money to Denzel who discharged his obligations to the respondent’s client, EBC in full before proceeds of the sale of his immovable property had been disbursed. Motsi, as the record reveals, paid USD 130 000 to Denzil and a further USD 50 000 to Messrs Venturas & Samkange Legal Practitioners on the instructions of Denzil. He remained with USD 108 000 which he did not account for from the date the sum was due and payable to date. He has no explanation for his continued possession of the stated sum. As the applicant correctly states, the money which came out of the proceeds of the sale of Denzil’s house belonged to no one else but to Denzil. His property had been sold to satisfy the debt which Denzil owed to EBC which engaged the respondent to recover the same from Denzil. It stands to good logic and reason that, when Denzil paid the debt which he owed in full, the respondent’s mandate ceased to exist. He had been engaged by EBC only to recover its debt from Denzil. The respondent’s flirtation with Eurodollar Foreign Exchange (Pvt) Ltd (“Eurodollar”) was a clear frolic of the respondent. He was not the agent of Eurodollar. He was the agent of no one else but EBC. He, therefore, held the money which resulted from the sale of Denzil’s property in trust for, and on behalf of, Denzel. He had every duty to account to Denzel that sum of money and not to Eurodollar. This is a fortiori the case when regard is had to the fact that he was not the agent of Eurodollar. It is the view of the Tribunal that the respondent raises the issue of Eurodollar as a way of extricating himself from the hook, so to speak. He cannot extricate himself from the fraud which he consciously committed by roping into the equation Eurodollar which did not give a mandate to him to protect its interests. The fact that Eurodollar and Denzel entered into an acknowledgment of debt, Annexure E 1, and subsequently in a deed of cession in terms of which Denzil ceded his two properties- one of which is the subject matter of Denzil’s complaint, Annexure E 10-is to all intents and purposes none of the respondent’s business. The two agreements do not allow him to remain in the equation of the two contracting parties. He is an outsider to them and is regarded as such by the law. All what he should have done was to deposit the sum of USD 238 000 to Denzil’s Legal Practitioners, Messrs Zinyengere Rupapa after he had paid the sum of USD 50 000 to Messrs Venturas & Samkange on the instructions of Denzel. The proceeds of the sale of Denzil’s property were trust funds. They were therefore to be dealt with in the manner that Denzil contemplated. They were due to Denzil who was entitled to the same on account of the fact that he had satisfied the judgment debt in full before proceeds of the sale of his property had been disbursed. The respondent’s conduct was, in view of the above-analysed set of circumstances, not only unprofessional. It was also dishonourable and totally unworthy of a legal practitioner. In each of the two complaints which were filed against him, the applicant wrote requesting the respondent to respond to the allegations which had been lodged against him. The respondent failed to respond to letters which the applicant wrote to him. The record shows that, on 16 December 2015, the applicant wrote inviting the respondent to update it on whether or not he conclusively dealt with the case of Robert and Tariro Chikumbirike. Reference is made in the mentioned regard to Annexure H which appears at page 38 of the record. The record shows further that, on 22 September 2020 and in respect of the second complaint, the applicant emailed the respondent whom it requested to comment on the matter before its transmission of the same to the Disciplinary and Ethics Committee. Reference is made to Annexure J which is at page 42 of the record. There is no evidence which is filed of record to show that the respondent responded to the above-mentioned two annexures. It is therefore not inappropriate for the applicant to state, as it is doing, that the respondent contravened section 23 (1)(c) of the Act as read with By-Law 65 of the applicant’s By-Laws, 1982. The preliminary points which the respondent raised have no merit. He, it would appear, raised them just for the sake of saying something. He knows as much as anyone who is in the field of law does that, as the regulator of the legal profession, the applicant has every right to summarise the contents of allegations which complainants level against its members, himself included. His assertion which is to the effect that the applicant gave hearsay, and therefore, inadmissible evidence when all what it did was to spell out what was being levelled against him for his own benefit only goes to show the desperation which worked his mind when he laboured to extricate himself from the evidence which was mounting against him. His failure to honour the acknowledgement of debt which was intricately connected to abuse of trust funds brings the status and integrity of the legal profession into serious disrepute. His statement which is to the effect that Denzil has no cause of action against him is difficult, if not impossible, to countenance. He withheld Denzil’s USD 108 000 from the date that it was due to be paid to date. He has no valid explanation for his conduct in the mentioned regard. He cannot be heard to suggest that Denzil has no cause of action against him when he withheld USD 108 000 which is due to Denzil. The Tribunal has considered all the circumstances of the case of the complainants. It is satisfied that the applicant proved its case against the respondent in respect of both complaints. The Tribunal therefore finds the respondent guilty of both complaints as charged. SENTENCE Following the conviction of the respondent, we directed him and the applicant to file their written submissions in mitigation and aggravation of sentence respectively. The registrar of the Tribunal wrote to the parties on 18 October, 2024 under reference LPDT 3/21. According to the aforesaid letter, the respondent was to file and serve upon the applicant his written submissions on 25 October, 2024. The applicant, as per the contents of the letter, was to file and serve upon the respondent, its submissions in aggravation on or before 1 November, 2024. The Tribunal was to hand down sentence on 15 November, 2024. Because none of the parties was able to meet the above-mentioned timelines as had been directed, the Tribunal decided to deliver its sentence on 25 November, 2024. The respondent who is expected to have been more eager than otherwise to persuade us to look at his case with favour did not file anything from the date of his conviction to date. The reasons for his inaction remain largely unknown to us. The applicant missed the deadline of 1 November, 2024. It only filed its submissions in aggravation of sentence on 4 November, 2024. It offered no explanation at all for the delay which occasioned its late filing of its submissions in aggravation. Our assumption is that it was waiting for the respondent to serve upon it his written submissions in mitigation of sentence as it had to reply to those. The above-observed issues notwithstanding, the respondent’s non-submission of his statement in mitigation of sentence shall not detract us from dealing with his case to its final conclusion. Whilst we are not aware of the reasons which persuaded the respondent not to file his written submissions in mitigation of sentence as he should have done, the letter which Messrs Sibanda & Partners wrote to the Tribunal on 8 April, 2024 appears, in our view, to have misled the respondent into not mitigating in respect of the sentence which is to be imposed on him. The contents of the letter are relevant. It reads, in extenso, as follows: “RE: LAW SOCIETY OF ZIMBABWE v MUYENGWA ENDURANCE MOTSI LPDT 3/21 We refer to the above matter particularly to the Honourable Judge Muremba’s directive that parties file their submissions in mitigation and aggravation. We write to bring to the Honourable Judge’s attention that the Respondent is no longer, pursuant to the judgment of this court of the 29th of December 2023, a registered legal practitioner and a member of the Applicant. Find attached hereto a copy of the judgment. Our considered view on the consequences of the aforesaid judgment is that any proceedings and judgment against the Respondent post the attached judgment will be irregular and brutum fulmen respectively. We therefore deemed it prudent to bring the above developments to the Honourable Tribunal’s attention for its consideration” That the respondent was tried, convicted and sentenced under LPDT 22/18 is a reality which cannot be ignored. The reality that the respondent was tried and convicted in the present matter (LPDT 3/21) cannot similarly be swept under the carpet or wished away. We therefore disagree with the author of the letter who states that judgment against the respondent post the conclusion of LPDT 22/18 is an irregularity. The present matter (LPDT 3/21) is a stand-alone case which should not be subsumed under LPDT 22/18. The two cases are markedly different the one from the other. Each has its own set of facts which are peculiar to it. The respondent should therefore be punished for his unwholesome conduct for which he was convicted under LPDT 3/21. The process which brought about his conviction is real. It cannot be brushed aside without doing an injustice to the complainants who invited the Tribunal, through the applicant, to be vindicated. LPDT 3/21 should therefore be brought to its final conclusion. The contents of the letter of 8 April, 2024 are synonymous with the fallacious argument which is to the effect that a convict whom the court convicted in a previous case should not be convicted let alone punished for his misdeeds in a second case. If the argument were to be allowed to hold, as the letter suggests, then many offenders who offend for the second or third time would go scot-free making the issue of justice delivery a mockery by all and sundry. It is for the mentioned reasons, if for no other, that we remain of the view that no irregularity comes into play when we proceed, as we should, to punish the respondent for his misconduct. Owing to poor advice from counsel, the respondent, it has been observed, did not file his submissions in mitigation of sentence. The question which begs the answer is: shall we, as a Tribunal proceed to punish him without hearing what he has to say in mitigation of sentence. The answer is definitely in the affirmative. In the affirmative because we gave him the time to mitigate and he failed to do so. We invited him, through correspondence, to do so and he spurned our invitation. We cannot wait for him for an indefinite period of time. He, as we have already stated, should have mitigated as soon as the fact of his conviction was communicated to him. The applicant failed to live within the dies for a number of days because it was waiting for him to start the ball rolling. He cannot have his cake and eat it. He should, in the circumstances of the case, suffer for the sins of his own legal representatives. The ball is not with them. It is with him. It is him, and not them, whom the law is enjoined to punish. We cannot state that we have nothing which we may consider in mitigation of sentence which we shall impose on the respondent. We, in terms of precedent, have the power and ability to refer to our own records. Reference is made in this regard to Mhungu v Mtindi, 1986 (2) ZLR 171 (SC) and Netone v Econet, SC 47/18. We are alive to the fact that the respondent made submissions in mitigation of sentence which the Tribunal imposed upon him under LPDT 22/18. Some of the factors which he stated in the case apply equally in his favour in the current case. They are therefore pertinent for our consideration in casu. We mention, in passing, that the principles which a judicial officer employs in considering the guilt or otherwise of an offender are very different from those which he employs when he is assessing the sentence which he shall impose on him. In the former set of principles, all what the judicial officer is required to do is to pay attention to the charge which has been levelled against the offender, the elements of the offence in particular. Where the evidence which has been led supports conviction of the offender in the sense that all the elements have been proved beyond reasonable doubt-in a criminal case- or on a preponderance of probabilities in a case such as was proved against the respondent, the judicial officer has no option but to convict. His duty is therefore less onerous than otherwise because what he only does is to compare and assess the evidence which has been led and measure the same against the elements of the offence which are contained in some written law. Assessment of sentence is a different ball-game altogether. Other than comparing the mitigating and aggravating features of the case which is before him, the judicial officer has nothing which guides him as to the sentence which he must impose. He, by and large, has to rely on his value judgment. He, in short, has to strike a balance between two competing interests. These are the interests of the offender, on the one hand and those of society, as represented by the prosecutor in a criminal case, or by the applicant in a group of professionals such as the respondent was a member, on the other. The balancing act is more often than not informed by such factors as the views of the general public which cannot be divorced from the conduct of an errant professional and the views of members of a particular professional group. These are measured against such matters as the attitude of the offender to the misconduct, whether or not he is remorseful for his misdeeds, whether or not he paid, or is prepared to pay, compensation to his victim(s) where such is warranted and/or whether or not he is a repeat offender. The list remains endless. Each case depends on circumstances which are specific to it. Precedent also assists in matters of the present nature. One such precedent is found in Law Society of Zimbabwe v Lloyd Manokore, HH 167/21. The case offers an insight into the approach which we must take in our effort to arrive at a sentence which is commensurate with the respondent’s conduct. It outlines the factors which we must consider in our onerous task of assessing the sentence which we must impose. The factors, according to it, comprise: the need to uphold public confidence in the administration of justice; safeguarding the collective interest in upholding the standard of the legal profession; punishment of the errant legal practitioner for his misconduct- and/or setting standards to be observed by other legal practitioners and, in the process, deterring against similar conduct by like-minded legal practitioners. What comes out of the above-cited case authority is simple and straightforward. The case stresses that a legal practitioner must be a man or woman of unquestionable character. He (includes she) should observe a very high standard of ethics as well as behaviour both in, and out of, court. In and out of court for the simple reason that he is first and foremost an officer of the court. It is to the court more than to anything else that he owes the duty of being a diligent and honest member in the family of his colleagues who, together with him, are members of the learned profession. A learned man should not steal from those whom he represents. He should, therefore, be of an impeccable character both in his practice and out of it. He should not open himself to question or doubt by those whom he agreed to represent. Chizikani v Law Society of Zimbabwe, 1994(1) ZLR 382 shows the serious disdain with which the court views the conduct of an errant legal practitioner. The case authority, stresses at page 390, that: “……lawyers as a professional class live by their own high code of ethics and their own moral standards. Every legal practitioner owes a duty to his colleagues to uphold those standards of the profession to which he belongs. ….if legal practitioners, as a professional group, are to earn a respected position as guardians not only of public, but also of private interest, then every legal practitioner must live up to the principles of decency in the relationship of a trustee to the goods and monies entrusted to him by the person who has sought his protection. A legal practitioner who breaches this trust casts a shadow on the good name of the rest and also remains a danger to the unsuspecting public….” We remain constrained to dilute the wise words of the court by adding to, or subtracting from, them any matter. The case authority lays down parameters out of which any member of the legal profession may choose to leave at his own peril. The respondent’s half-hearted approach to his case is not only unfortunate. It is also uncalled for. He submitted what he terms his statement in mitigation of sentence only on 13 November, 2024 and not on 25 October, 2024 as we had directed him to do. The statement, which is by no means anything which falls in the area of mitigation, is totally misplaced. It seeks to move us to dismiss the charge upon which he was convicted earlier than his current motion. He does not tell us the manner in which we are able to undo what we did prior to the said statement which he filed at the twilight part of the case. We disposed of the stated aspect of the case in the foregoing paragraphs of these reasons when we considered the letter which his counsel wrote to us on 8 April, 2024. As we stated in the foregoing paragraphs of these reasons, factors which favour the respondent are easily gleaned from the submissions which he made to the Tribunal under LPDT 22/18. These are that: the respondent maintained an unblemished record for twenty-seven (27) years running; his removal from the register of legal practitioners, conveyancers and notaries public placed a stigma on him; the stigma, unless successfully appealed against, remains with him for the remaining part of his life on planet earth- and his de-registration deprived him of his source of income for his dependants, if any, as well as for himself. The applicant moves us to remove the respondent from the register of legal practitioners, conveyancers and notaries public for the second time. It submits that what he did qualifies for nothing else other than his de-registration. It referred us to a number of cases in which legal practitioners who embezzled the money which was entrusted to them were removed from the register. Among such cases is that of Muskwe v Law Society of Zimbabwe, SC 70/20 in which the Supreme Court confirmed the decision of the Tribunal which de- registered the appellant who abused his client’s USD 68 411. The other case is that of Law Society of Zimbabwe v Kamdefwere, HH 271/21 in which the Tribunal removed from the register of legal practitioners, conveyancers and notaries public the respondent who misappropriated trust funds in the sum of USD 49 690.39. The applicant submits that only when appropriate penalties are meted out will the integrity of the legal profession be preserved. We agree. The respondent misappropriated trust money which belonged to Comverol Enterprises (Pvt) Ltd and a further sum which belonged to Chalmers Denzil. In the first case, he swindled his victim of USD 46 688 and in the second case he stole from his victim the sum of USD 108 000 making the total sum that he stole from his two victims to add up to USD 154 688. The fact that his victims recovered nothing from him weighs very heavily against him. He, on his part, has not offered to re-pay what he stole from them. Nor did he re-pay anything to any one of them. All he is persuading us to do is to wash him clean, as it were. He does so in a belated manner unfortunately for him. He should not be allowed to entertain the view that crime, of whatever nature, pays as he seems to suggest in his statement under mitigation of sentence. The fact of the matter is that it does not pay. There is no evidence that he stole out of need. The logical conclusion which is reached is that he stole out of greed. His moral turpitude is high in the extreme sense of the word. What he did tarnishes the name of the profession to which he was a member. It cannot be condoned let alone accepted at all. He is a real danger not only to the unsuspecting public but also to members of the legal fraternity. Nothing short of de-registration does, in our view, meet the justice of the present case. The punishment which the Tribunal meted out on him in LPDT 22/18 is the maximum which the Tribunal is able to impose on such an errant legal practitioner as he is. He will, in the circumstances of the case, receive the same sentence as was passed on him in LPDT 22/18. We can, in this case, do no better than borrow the wisdom of, MUSAKWA JA, who, in Law Society of Zimbabwe v Muyengwa Endurance Motsi, LPDT 22/18 observed the following of the respondent: “The cumulative conduct of the respondent is such that he is not a fit and proper person to continue practising law. What is sought to be achieved is to protect the interests of the public in its dealings with an errant legal practitioner. De-registration is warranted in the circumstances of this case.” We, accordingly, order as follows: In terms of Section 28 (1)(c)(i) of the Legal Practitioners Act (Chapter 27:07), the respondent’s name be and is hereby deleted from the register of legal practitioners, conveyancers and notaries public. The respondent be and is hereby ordered to pay the expenses the applicant incurred