When it rains for Professor Welshman Ncube, it pours

PROFESSOR WELSHMAN NCUBE'S FRAUDULENT HEADS OF ARGUMENT BASED ON FICTITIOUS OR FALSIFIED CASE LAW AUTHORITIES FILED WITH THE SUPREME COURT: When it rains for Professor Ncube, it pours. Just as he is embroiled in a messy conveyancing case in which he conflicted himself by representing both the seller and the buyer in a property transaction that risks exploding in his hands; he finds himself risking drowning in the deep end of a mucky pool of fictitious and falsified heads of argument at the Supreme Court. 

Last week Professor Ncube deposited with the Registrar of the Supreme Court in Harare a shocking and unprecedented letter of apology (copy attached) after he was exposed by the respondent's attorneys in Case Number SC 202/25 for filing fraudulent heads of argument on behalf of his client, the appellant in the case - "fraudulent" because they were based on at least 12 fictitious case law authorities some that are, in his own words, "non-existent" and others that are falsified with, again in his own words, "case law authorities which did not support the propositions they were being cited for".

There are two fundamental legal documents in civil litigation: a founding affidavit by an applicant, or an opposing affidavit by a respondent on the one hand; and heads of argument by the lawyers of either the applicant or the respondent, on the other hand. 

The founding and opposing affidavits are about the facts of the case; while the heads of argument are the detailed and concise legal explanations of how the applicable law -  based on relevant legal principles and legal precedents - applies to the facts of the case that are in the founding affidavit of the applicant or in the opposing affidavit of the respondent, respectively.

While basic, this is important to understand in order to appreciate the importance of heads of argument in litigation: namely that they are key points of law and legal arguments applied to the facts in support of the case of either the applicant or the respondent, as the case maybe.

In appellate courts, such as the Supreme Court, heads of argument are particularly and critically important as the only written legal submissions to the court prepared by the lawyers of the parties in a case; who also use or speak to the heads of arguments in their oral arguments in court to provide an outline of the main issues and the legal reasoning behind the submission or case of each party.

As legal explanations of how the applicable law based on legal principles and legal precedents apply to the facts of a case, in appeal matters, lawyers use heads of argument to highlight the legal errors made by a lower court, to present a legally compelling submission based on case law authorities - some that are binding and others that are persuasive - to assist and persuade an appellate court to arrive at a judgment favourable to their client.

From the foregoing, what is of specific and critical relevance to Professor Ncube's fiasco is that when the heads of argument of a litigant in an appellate case have at least 12 case law authorities that are fictitious or falsified, and which are the majority of the cases cited, as is apparently the situation facing Professor Ncube's client in the matter at issue, then the affected litigant has absolutely no legal case; in other words, the whole case of that litigant collapses.

Professor Ncube alleges in his letter of apology that the multiple fictitious and falsified cases were prepared for him by a conveniently unnamed "graduate researcher". 

This astonishing excuse is not just lame; it is manifestly dishonest, unprofessional and unethical with no legal moment.

The baseless and useless excuse by Professor Ncube that his heads of argument "cited multiple non-existent case law authorities; and case law authorities which did not support the propositions they were being cited" was presented to him by a graduate researcher; begs a simple question about his legal practice with far reaching implications.

Question:

Is Professor Ncube's law firm, Mathonsi Ncube Law Chambers in Bulawayo, a professional legal practice registered by the Law Society of Zimbabwe (LSZ), which he runs assisted by junior lawyers with practicing certificates from the LSZ; or is it just a law academy which he runs assisted by graduate researchers, like the one he refers to, who do not have practicing certificates from the LSZ, as lawyers?

On the face of it, there's something unbecoming going on with the staff situation at Mathonsi Ncube Law Chambers. A law firm that files heads of argument with the Supreme Court, of all courts, that have at least 12 fictitious or falsified case law authorities deserves to be investigated by the LSZ. 

Something rotten appears to be going on at Mathonsi Ncube Law Chambers, under Professor Ncube's apparently blind watch.

It is unthinkable that a "junior lawyer" with an LSZ practicing certificate would do what Professor Ncube is alleging his "graduate researcher" did. 

It could be that Professor Ncube has invented "a graduate researcher" to dodge the bullet of being held accountable with the requisite consequences. It is mind boggling that Professor Ncube has no qualms about writing in his letter of apology that he did not read the case law authorities - which he claims were prepared by "a graduate researcher" - before citing and filing them. 

If his claim is true, then he is a particularly dangerous and unfit lawyer, especially since he is a senior member of the bar who is also a professor of law. 

It is just unacceptable that a professor of law can submit 12 case law authorities to the Supreme Court, which he has actually not read, when he knows or ought to know that judges can ask him about the cases during oral arguments in the hearing of the case.

In this connection, it is instructive to note upfront that what is concerning about the 12 fictitious or falsified case law authorities cited in Professor Ncube's heads of arguments, is that they constitute a fraud that had a real risk and real possibility to mislead the Supreme Court with a sinister potential that could have defeated the course and ends of justice; to the detriment of the appellant, who is Professor Ncube's client. 

Thankfully, it is but for the diligence of the respondent's attorneys that the possibility of that calamity has hopefully been stopped dead in its tracks, after they used the heads of argument of their client, the respondent, to expose Professor Ncube's fraudulent case law citations.

However, what the diligent intervention of the respondent's attorneys did not stop, and what Professor Ncube's letter of apology does not address at all, is the patently manifest prejudice that the fraudulent citation of "non-existent" or falsified case law authorities has done to the legal case of the appellant; who, again, is Professor Ncube's client.

Professor Ncube's indubitable misconduct in citing the 12 fictitious or falsified case law authorities in his heads of argument, compounded by his choice to write a bland letter of apology to the Registrar of the Supreme Court in which he purports to take "full and unequivocal responsibility" for what he downplays as "these errors", does not in any way, shape or form cure his transgression and its damaging impact on his client, the appellant.

All that Professor Ncube does in his letter of apology is to request the Registrar of the Supreme Court to "place this letter of apology before their Lordships before whom the above matter will be placed for adjudication." He does not say to what end. What is the legal value or import of his letter of apology whose content is no better than a "Dear Auntie Rhoda" missive?

But, more importantly and in terms of court rules, what procedure is the letter of apology that Professor Ncube has requested the Registrar to place before the Supreme Court judges? And, what does Professor Ncube expect the Supreme Court to do with his letter of apology that self-indulgently describes his fictitious or falsified 12 case law citations as just "errors, when they are in fact fraudulent and are therefore very damaging to the case of the appellant, his client?

The difference between "fraud" and "errors" is a no-brainer.

Professor Ncube's decision not to read the 12 fictitious or falsified case law citations in his heads of argument was not an "error", it was his decision, his choice; an unprofessional and unethical choice for any lawyer to make.

Parenthetically, it is notable that Professor Ncube seems, for whatever reasons, to be prone to making such "errors" in his preparation of court papers. 

His latest fiasco over the fraudulent heads of argument he filed with the Supreme Court is reminiscent of a recent incident earlier this year when he filed an opposing affidavit - with a fatally flawed key attachment that he falsely claimed proved his authority to be the deponent of the opposing affidavit - which was struck out by the court in Case Number HCH 830/25 brought by Senator Sengezo Tshabangu - resulting in the case proceeding unopposed, and the judgment granted to Senator Tshabangu; for this and other reasons.

After losing the case; as was inevitable in the circumstances, Professor Ncube sought to have the judgment rescinded. In his urgent rescission court application under HCH 2057/25, he lamely claimed that "…high pressure of trying to complete and file the opposing papers" in time resulted in him "not attaching the correct resolution to the opposing affidavit", which led the court to strike off his opposing affidavit; leaving the matter unopposed, to Professor Ncube's grief.

Calling this an "error", as he is wont to do, Professor Ncube averred that, "[While] careless it [the "error"] was not deliberate and certainly did not indicate any disdain for the Rules of Court".

Interestingly, in the same way he blames "a graduate researcher" in the heads of argument fiasco, in the Tshabangu case, Professor Ncube blamed a "Mr Mahlangu". 

Below is a reproduction of the full averment that Professor Ncube made to ostensibly explain how an irrelevant MDC-A resolution from 2022 about an irrelevant event that year was attached to Professor Ncube's opposing affidavit by a "Mr Mhlanga" (who works in his office); as a relevant attachment and presented as proof of authority for Professor Ncube to the deponent for Triple C in a 2025 case:

"I (Professor Ncube) had to work overnight with virtually no meaningful sleep and then all day on the 5th March 2025 firstly settling the paragraphs that Advocate Ndlovu had drafted and in particularly adding some more preliminary objections to the application and secondly responding to paragraphs 21 to 38 and paragraphs 41 to 74 of the opposing affidavit. This meant that I arrived at my office shortly before 4am on the 5th of March 2025 and worked continuously without even a lunch break until early evening when I finally completed the opposing affidavit which Mr Mahlangu then checked through.

By the time the opposing affidavit was ready I was mentally exhausted to assist Mr Mahlangu with the uploading of the opposing papers and to check if the correct annexures were the ones which were being uploaded. Mr Mahlangu was also tired having worked with me on the papers throughout the day.

It is this high pressure of trying to complete and file the opposing papers and have them stamped on the 5th March 2025 which explains the mistakes which were made.

Firstly, under pressure of work both of us failed to spot the typographical

error in paragraph 1 of the opposing affidavit which wrongly referred to 5th Respondent in HCH 830/25 as 1st Applicant.

Secondly, when Mr Mahlangu was uploading the Annexures he uplifted the wrong annexure from HCH 5606/24, which was an extract from the minutes of a meeting of 1st Applicant held on 22 January 2022 which were part of the record in that case as Annexure CC1 instead of uplifting the correct annexure which was part of that record as Annexure CCCAA. Attached hereto and marked as Annexure H is Mr Mahlangu's affidavit explaining the circumstances under which the mistake was made.

As a result, the correct resolution was not attached to the opposing affidavit resulting in the Court finding as it did. This was an honest mistake made under immense pressure of the day to beat the deadline of the case management order which required that the opposing papers be filed no later than the 5th March 2025".

But the court judgment, 257/25, in Case Number HCH 830/25 is clear that the "error" alleged by Professor was in fact "ineptitude", not an innocent mistake or just a careless mistake. 

About this, the court found as follows:

"This mishap borne out of ineptitude results from copy pasting of pleadings. This practice can be costly for parties and result in pleadings being struck out. Pleadings should be drafted with diligence and attention to detail ensuring that they are prepared for each individual case and that parties are properly identified. An affidavit that fails to identify correctly parties in a litigation is invalid and has no force or effect at law".

Sadly, Professor Ncube's default excuse is invariably never to actually or in real terms take full responsibility for his errors, save to always verbally claim to be doing so. 

In the heads of argument fiasco, Professor Ncube invents "a graduate researcher" whom he blames for having relied on an apparently clueless AI app; and in the Tshabangu case he blames a "Mr Mahlangu" for the flawed "attachment" debacle.

Professor Ncube's default excuses for his costly errors is akin to that of the legendary "KwaMereki" guy who got a catch for a quickie in his car, nearby. Done, while inebriated and under the cover of darkness, he put on the catch's panties instead of his own underwear; after which he drove straight to his residence where he found his wife asleep, lights off in their bedroom.  He turned the lights on, faked romance and started undressing item by item while singing a love song and dancing for his wife, hoping to impress her. When the bewildered wife saw the panties on her husband, she fainted. The poor "KwaMereki" guy cried like a baby: "Ndiani andipfekesa bhurugwa iri?" (who put these panties on me?).

All told, Professor Ncube's letter of apology is not worth the paper it is written on.

This is mainly because he actually does not take full responsibility for his "errors" by proactively doing something to protect the appellant, his client. His letter of apology solves nothing, legally. 

What Professor Ncube should have done straight up after his fraud was exposed by the attorneys of the respondent, and what he still can and should before it's too late, is to proceed legally and procedurally in terms of the rules of the Supreme Court to withdraw the fraudulent heads of argument that are based on 12 fictitious and falsified case law authorities; file a renunciation of agency, incorporating his apology for prejudicing the case of his client, the appellant; whose case is now in grave jeopardy and is at risk of being irreparably damaged if he does not withdraw his fraudulent heads of argument and renounce agency.

It is in the interest of justice for the appellant to be enabled to find and brief an honest, professional, ethical and vigilant lawyer to assume agency and to use Professor Ncube's fiasco to seek the Supreme Court's condonation for a late filing of fresh heads of argument to replace Professor Ncube's fraudulent filing, which is based on at least 12 fictitious or falsified case law authorities.

Meanwhile, to safeguard the integrity of both the bar and the bench, to wit the integrity of the judiciary, and to protect the public from unscrupulous lawyers or inept lawyers, the Supreme Court should mero motu slap Professor Ncube with an exemplary order of costs de bonis propriis to send a clear message about the egregious nature of his "errors", which are in fact gross misconduct. 

If Professor Ncube's claim that he did not read the 12 fictitious or falsified case law cases he cited in the heads of argument he filed with the Supreme Court that he alleges were prepared by "a graduate researcher" is true; then, the good professor clearly slept on the job.

As a law professor, Ncube should be the first to know only too well the legal maxim: "vigilantibus non dormientibus jura subveniunt," which translates to, "the laws aid the vigilant, not those who sleep on their rights".  The law favours those who are proactive and display diligence in protecting their rights, and not those who are inactive; who act with negligence, carelessness, recklessness, unprofessionalism or ineptitude!