LSZ defends status quo

By The Standard and Newsday | Jan. 20, 2022 | 3 Min read

The High Court application was made by a lawyer, Joshua Chirambwe, who is seeking a declaratory relief setting aside sections 58, 64 and 65(1) to (5) of the Legal Practitioners Act as invalid and in violation of the Constitution.

BY MIRIAM MANGWAYA

THE Law Society of Zimbabwe (LSZ) has challenged a High Court application which seeks to strip off its regulatory powers, arguing that its existence was crucial to protecting the public from unscrupulous legal practitioners.

LSZ, cited as the second respondent in the matter, argued that the High Court did not have jurisdiction to preside over the issue.

In his application, Chirambwe is seeking a declaratory challenging the Legal Practitioners Act, which states that one has to be a member of the LSZ before they are registered by a High Court judge and allowed to practise as a lawyer.

Chirambwe argues that the provision was incompatible with the Constitution, which gives everyone the right to associate with organisations or groups of choice.

But in his notice of opposition, LSZ executive secretary Edward Mapara said the existence of the body and its functions as an association and regulatory body were constitutional and consistent with international practices.

“The existence of an independent professional regulator is crucial for the independence of the profession, as their role is, inter alia, to offer a strong governing structure and leadership, promote the welfare of lawyers and ensure access to the profession for those who are suitably qualified,” Mapara said.

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“Professional regulators can become mechanisms for the promotion of, and access to justice, as well as influence laws and regulations through effective advocacy, litigation and engagement. If one was to attempt to follow the applicant’s argument that there is a limitation to the right to freedom of profession, trade or occupation in accordance with section 64 of the Constitution, this would lead nowhere.”

He said the society did not force practitioners to become members, as implied by Chirambwe in his application, as membership was optional.

“This application is improperly before the honourable court as the applicant has failed to pursue legal remedies available to him and at his disposal in respect of his alleged ‘forced membership’. Section 52 of the Legal Practitioners Act (Chapter 27:07) provides that the applicant, as a registered legal practitioner residing in Zimbabwe, has the right to become a member of the second respondent, as well as, the right to cease to be a member,” Mapara said.

“To this extent, the applicant could have simply withdrawn his membership with the second respondent before mounting a constitutional challenge on the basis that he is being forced to become a member of the second respondent by virtue of section 52 of the Legal Practitioners Act as other legal practitioners have done so.”

In the application, Chirambwe also demanded a refund of all his membership subscription fees from the date the LSZ was formed. The LSZ declined to do so.

“Not only were these payments made under valid law, but they were made in fulfilment of the applicant’s membership obligations to the second respondent. There is, thus, no cause for the refund. Applicant opted to exercise his right to become a member, as afforded by section 52 of the Legal Practitioners Act. Applicant concedes that his membership was and remains voluntary.”

Chirambwe also cited Justice minister Ziyambi Ziyambi and Attorney-General Prince Machaya as respondents.

LSZ wants the application to be dismissed with costs.