Judge castigate 'dishonest' lawyers

HIGH Court judge Justice David Mangota has taken a swipe at lawyers who deliberately mislead their clients into pursuing dead cases, a development that wastes the court's time, costs the litigant and unnecessarily clogs the court system.

Throwing out an application by a Harare man, Mr Konono Konono, who wanted to be declared the lawful owner of a Waterfalls property, Justice Mangota said the man's lawyers had acted unprofessionally.

Justice Mangota said the lawyer, Ms Melody Kenende of Tavenhave & Machingauta Legal Practitioners, deliberately failed to properly advise Mr Konono that his application was doomed.

"It is a worrying development when legal practitioners, who are engaged by a litigant, do not take it upon themselves to properly advise their clients of what the law does, or does not allow.

"Such conduct by a legal practitioner, who took the oath of office, borders on dishonesty of some huge magnitude. It should, therefore, be frowned upon," said Justice Mangota.

The judge said he had discussed with the lawyers enlightening them on the proper position of the law in relation to the dispute but they deliberately omitted to properly advise their client.

"I conclude this judgment with some disquiet. The applicant was legally represented when he filed this ap- plication.

"His legal representative entered into a discourse with me during the hearing of the application. The legal practitioner was, in the course of the hearing, made aware of the above basic concepts which relate to the law of contract and the law of property as well as the distinction which exists between the two.

"The legal practitioner appeared to have been on the same page with the court on why the application could not succeed. Notwithstanding that appreciation, the same law firm saw it appropriate to allow the applicant to appeal against such an obvious matter," ruled Justice Mangota.

Mr Konono purchased stand number 437 Malvern Township in Waterfalls, from Mr Brian Mapurisa.

The property measured 2 000 square metres and the purchase price was $27 000.

Breach of Contract
However, Mr Konono did not assert his rights to the property from 2012 when he bought the property.

The same property was then sold to another person, Mr Cosmas Satiyo, and his wife in 2015.

Ownership of the property was then transferred into Mr and Mrs Satiyo's names.

Mr Konono then filed a court application seeking an order declaring him the lawful owner of the stand.

Justice Mangota ruled that Mr Konono was not the legitimate owner and instead, he should have sued Mr Mapurisa for breach of contract.

"It follows from the foregoing that once it is accepted, as it should, that the second respondent and his wife (Mr and Mrs Satiyo) are the owners of the property, their right in the same cannot, at law, be disturbed. They hold onto the property against the whole world.

"The applicant (Mr Konono) has no valid claim to the property. He has no real rights in the property. He has personal rights only. His remedy lies against the first respondent.

"He should sue him for breach of contract and recover from him what he paid as purchase price for the property," Justice Mangota said.