BY MIRIAM MANGWAYA
The Law Society of Zimbabwe (LSZ) has challenged a High Court petition to strip it of its regulatory powers, arguing that its existence was crucial to protect the public from unscrupulous lawyers.
The High Court petition was filed by a barrister, Joshua Chirambwe, seeking a declaratory judgment striking down sections 58, 64 and 65(1) to (5) of the Legal Practitioners Act as invalid and in breach of the Constitution.
LSZ, named as a second defendant in the case, argued that the High Court had no jurisdiction to decide the matter.
In his petition, Chirambwe seeks a declaratory judgment challenging the Law Practitioners Act, which stipulates that one must be a member of the LSZ before being registered by a High Court Judge and allowed to practice as a barrister. .
Chirambwe argues that the provision was inconsistent with the Constitution, which gives everyone the right to associate with organizations or groups of their choosing.
But in his notice of objection, LSZ executive secretary Edward Mapara said the body’s existence and its functions as an association and regulatory body were constitutional and consistent with international practice.
“The existence of an independent professional regulator is crucial for the independence of the profession, because its role is, among others, to provide a strong governance structure and leadership, promote the welfare of lawyers and ensure access to the profession for those who are suitably qualified,” Mapara said.
“Professional regulators can become mechanisms for advocacy and access to justice, as well as influencing laws and regulations through effective advocacy, litigation and engagement. If one attempted to follow the petitioner’s argument that there is a limitation on the right to freedom of profession, trade or occupation under Article 64 of the Constitution, it would lead nowhere.
He said the society did not force practitioners to become members, as Chirambwe implied in his application, because membership was optional.
“This petition is wrongfully presented to the Honorable Court because the petitioner failed to exercise the legal remedies available to him and available to him in respect of his alleged ‘forced membership’. Section 52 of the Solicitors Act (Chapter 27:07) provides that the plaintiff, as a registered solicitor residing in Zimbabwe, has the right to become a member of the second defendant, as well as the right to cease to be a member,” Mapara said.
“To this extent, the plaintiff could have simply withdrawn his membership in the second defendant before initiating a constitutional challenge on the ground that he is compelled to become a member of the second defendant under section 52 of the Legal Practitioners Act , for other jurists have done so.
In the application, Chirambwe also demanded the reimbursement of all its membership fees from the date of the establishment of the LSZ. The LSZ refused to do so.
“Not only were these payments made pursuant to applicable law, but they were made in fulfillment of the plaintiff’s obligations of membership to the second defendant. There is therefore no reason for reimbursement. The applicant has elected to exercise his right to become a member, as permitted by section 52 of the Law Practitioners Act. Applicant acknowledges that its membership was and remains voluntary. »
Chirambwe also named Justice Minister Ziyambi Ziyambi and Attorney General Prince Machaya as defendants.
LSZ seeks dismissal of the claim with costs.
- Follow Miriam on Twitter @FloMangwaya