MBAALALA B.

MUNUNGU v THE LEGAL PRACTITIONERS

DISCIPLINARY COMMITTEE, (CAP.48) (1992) S.J. 28 (S.C.)

SUPREME COURT
NGULUBE, M.M.S.W., AG. C.J.
S.C.Z. JUDGMENT NO. 6 OF 1992

Flynote
Legal practitioner - Disbarred from practicising - Misappropriation of funds

Headnote
The appellant was disbarred following misappropriation of funds. After several years of not
practising with his license he applied to the court for his license to be given back to him. His
case was unsuccessful and he appealed to the Supreme Court.

Held:
(i) There are no special oncompelling factors or indeed any ground founded on principle
and the public interest or the interest of the profession to invoke the rare jurisdiction
conferred by Section 93 of the Legal of the Legal Practitioners Act.

The applicant: In person

For the disciplinary Committee: The Solicitor-General (Mr. C.K. Banda), Mr. M. Lwatula
and Miss C. Mwansa.
For the Law Association of Zambia: Mr. L. Nyembele
Amicus curiae: Mr. N. Kawanambulu
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Judgment
NGULUBE, AG. C.J.:

This is an application brought by way of petition by Mr. Munungu to have his name restored on
the Roll of Practitioners. The applicant was called to the Bar of this country on the 7th of June,
1971, and held a practicing certificate every year until 1977. At the time he was employed as
a corporation lawyer by the Rural Development Corporation. The salient facts of the
misconduct which led to his name being struck off the Roll sufficiently appear in the case
concerning him reported in the 1983 Zambia Law Reports at page 48 wherein his name was
ordered to be struck off. Very briefly, the applicant pleaded guilty to five out of six counts of
theft by public servant committed on different dated between 28th October, 1976 and 3rd
March, 1977 and he was sentenced to a term of imprisonment, part of which was suspended.
The Disciplinary Committee considered an application from the Law Association of Zambia and
after hearing the matter found that the applicant's dishonest behaviour in stealing the money
the subject of the criminal conviction, was conduct unbefitting a member of the legal
profession and likely to bring the profession into ridicule and contempt. They recommended
that he be disbarred and the court duly ordered that his name be struck off the Roll of
practitioners. The applicant has been langishing for close to 15 years since the miscounduct or
10 years since his name was struck off. However, with the permission of the Disciplinary
Committee under the terms of Section 49 of the Legal Practitioners Act, he has been employed
firstly by Messrs Shamwana and Company under Mr. Kawanambulu and currently by Messrs
M.A. Patel and Company under Dr.Shimaponda. He is desirous of regaining his status as a
legal practitioner and to be entitled to practice law in his own right once again. He has
invoked the jurisdiction vested in me by Section 33 of the Legal Practitioners Act which reads:

"The Chief Justice may, if he thinks fit, either on his own initiative or on the
recommendation of the Discriplinary Committee, at any time order the
Registrar to replace on the Roll the name of a practitioner whose name has
been removed from or struck off the Roll."

I am alive to the fact that, in my capacity as guardian of the legal profession and custodian of
the Roll, the discretion and the power vested in me by the section quoted must be exercised
only for very good reasons and on sound principles. Since the review of the applicant's
position was not at my intiative and there was equally no originating recommendation from the
Disciplinary Committee, I considered it right and proper that both that committee and the Law
Association should indicate their attitudes towards the petition. I am indebted to both bodies
and to their representatives who appeared before me. The Disciplinary Committee conducted
a hearing and they have lodged a record of the proceedings before them together with their
comments and some authorities. They have made available to me the evidence and
submissions tendered by the witnesses and that of the applicant who fully appreciated the
seriousness of his misconduct but who has - I am prepared to find - truly repented. There
was evidence also that the Law Association had no objection to the application as such.
Testimonials were produced from Mr. Kawanambulu and Dr. Shimaponda as to the applicant's
rehabilitation and good behaviour since the striking off and while working under their strict
supervision in the firms previously mentioned. The Disciplinary Committee itself objects and
has vigorously opposed this application, both in their record of proceedings and in oral
submissions before me. The applicant's case consisted of showing contrition and praying for
forgiveness and another chance, citing his own good conduct in the intervening period and the
suffering he and his family have gone through on a legal assistant's salary. He has argued
that being struck off the Roll did not constitute a permanent disability and has cited some
English authorities where convicted solicitors have been restored after paying back the money
taken and after showing subsequent good behaviour. He also relied on the fact that other
practitioners have since accepted his presence in their midst and that the Law Association
raises no objection. I am indebted to the applicant for the authorities cited, the thinking in
some of which will be reflected in this judgment. I am equally indebted to him for his
submissions in which he commented on the report of the Disciplinary Committee and argued
that he has since redeemed himself.

The Disciplianry Committee base their objection to this application on several grounds. They
argued that the interests of the profession and of the general public have to be considered
before those of the applicant. In their submission, the question is not whether the applicant
has repented but what damage would be done to the profession and the profession's
reputation if those convicted of crimes involving dishonesty can bounce back, especially at a
time when the profession is having to deal with an increasing number of complaints involving
dishonest lawyers. They pointed out that the offences committed by the applicant involved a
course of conduct over a period of time and were not a consequence of a single momentary
lapse explainable or excusable on some ground which would justify a belief that there was
here miscounduct hardly likely to be repeated. It was the Disciplinary Committee's submission
that there was now an indelible stain on the character of the applicant and the profession
could do very well without him. I am grateful to the Disciplinary Committee for drawing my
attention to a number of authorities. One of them is in Re a solicitor No. 5 of 1990 heard
before Lord Donaldson, M.R., from which the following passage taken from Re M (No. 5 of
1987) was quoted by Mr. Banda, the Solicitor General. I quote:
 "The problem is quite simply one which I have met before and on which I have
expressed a view before, namely that , however, sympathetic one may be
towards an individual member of either branch of the legal profession, if you
fall very seriously below the standards of that profession and are expelled
from it there is a public interest and an interest in the profession itself in
hardening its heart if any question arises of your rejoining it. Neither branch
of the profession is short of people who have never fallen from grace. There is
considerable public interest in the public as a whole being able to deal with
members of those professions knowing that save in the most exceptional
circumstances, they can be sure that none of them have ever been quilty of
any dishonestly at all."

I have no doubt that the good name of the profession must be of paramount importance.
However, Section 33 of the Legal Practitioners Act does contemplate that there may be cases
where restoration would be justifiable. In dealing with a similar provision, Lord Donaldson said
in Re a solicitor No. 5 of 1990 quoting from page 6 of the typed transcript before me and I
quote:-

"I approach the matter, as I hope I have always approached previous cases,
on the footing that there is a parliamentary intention that in some
circumstances it must be possible for somebody to have been involved in a
situation which justified their being struck off the Roll for having brought the
profession into disrepute and been unfit to be solicitors, but in which,
nevertheless, thereafter, by their own efforts or otherwise, a different
situation would arise in which it is right that they should be permitted to be
restored to the Roll. That is clearly the parliamentary intention."

I also respectfully agree with Lord Donaldson in the same case when he observed to the effect
that the category of cases where a disbarred lawyer can be restored must be very narrow
indeed. The question before me is whether the applicant can be regarded as fitting into such
rare category. The section itself, of course, leaves the matter open and does not assist, one
way or the other, to indicate in which special circumstances this very special provision can be
invoked. Obviously it would be idle to attempt to speculate and I must confine myself to
seeing whether there are grounds in this case for entertainning this application or if in fact, on
principle and on the merits, that is not the position.

The Disciplinary Committee made much of the fact that the dishonesty here was systematic
and a course of conduct which, they submitted, was a stain on the applicant's character and,
in the words of the tribunal in the case of Re Nicholas Lambert Jones (decision 4946 reported
at page 38 the Law Society's Gazette No. 2 of 15th January 1992), rendered him unacceptable
as a member of the profession, I also recall what the Supreme Court had to say in the case of
a student lawyer in Mabuye -v- Council of Legal Education (1985) ZR 10 where on the facts
and merits of the case, the previous unfitness of the student was held not to have attached a
permanent stigma and where evidence of subsequent good character and conduct was found
to have redeemed the student. The Supreme Court recognized that the majority of the cases
of disqualification concerned dishonesty or other serious disgraceful misconduct. I would like
to quote a fairly substantial passage from Mabuye starting from page 14 where the Supreme
Court had this to say:

"The overriding criterion for fitness to practice is integrity and for a

disqualification to be maintainable, it should be made to appear quite clearly
that the misconduct complained of not only seriously undermined such
 integrity but also that no amount of contrition and subsequent good conduct
can be regarded as having repaired and redeemed the applicant's integrity. In
this regard, the nature and quality of the misconduct and any evidence of
subsequent good conduct become relevant. In Re: Hill (1867-68) 3L.R.Q.B.
543, an application was made to strike an attorney of the roll, on account of his
having stolen some money. The misconduct was undoubtedly a serious one but
because, for a period of three years after the theft, Hill had conducted himself
well and done nothing wrong, he was not struck off. Instead, he was
suspended for a year because their Lordships in that case (Cockburn, C.J.,
Blackburn, J., Mellor, and Lush, J.) all felt that the subsequent good conduct
was a factor in his favour. Again in Re Weare (1893) 2Q.B. 439 the question
arose, as to the striking off of a solicitor who had been convicted of a criminal
offence of letting his houses to be used as brothels. In the course of his
judgment Lord Esher M.R. observed, at p. 446:

"The court is not bound to strike him off the rolls unless it considers that the
criminal offence of which he has been convicted is of such personally
disgraceful character that he ought not to remain a member of that strictly
honourable profession."

"In the same case, Lopes, L.J., observed, from the bottom of p.449 to the next page:

" I wish to make only one observation with regard to a point that arose about
the conviction. It is perfectly clear that the mere fact that a person has been
convicted of a criminal offence does not make it imperative on the court to
strike him off the roll. There are criminal offences and criminal offences. For
instance, one can imagine a solicitor guilty of an assault of such a disgraceful
character that it would be incumbent on the court to strike him off the roll. On
the other hand, one can imagine an assault of a comparatively trifling
description, where in all probability the court would not think it its duty to
interfere."

The court was there dealing with a student who had previously been a lay magistrate in which
capacity he had been dismissed for misusing his powers by unjustifiably issuing bench
warrants in situations unrelated to his proper functions as a magistrate. The principles quoted,
however, apply here with the additional observation in this case which concerns restoration
that the interests of the profession and of the public must be taken into account so that the
personal rehabilitation of the applicant, though relevant, cannot be in my view, an overriding
consideration. I can also not lose sight of the fact that, although at first the Law Association
appeared to give unqualified support to the applicant, Mr. Nyembele did indicate preference for
a proposition suggested by myself that if the applicant were to be restored there might be
conditions attached as to where and how he might practice. I am equally mindful of Mr.
Kawanambulu's candid submission which qualified the apparent support initially indicated in
favour of the applicant and when he also expressed concern at the prevalence of complaints
concerning dishonestly. Integrity and fitness to practice relates to these attributes from the
point of view and in the eyes of the public and the profession. An objective view is called for
and the question of personal repentance can hardly be the most important criterion.

The difficulty in this case is to determine whether, in the current circumstances and on
principle, the personal rehabilitation of the applicant can outweigh the interests of the public
and those of the profession which has an ample supply of lawyers who have not fallen from
grace. In this regard, I am mindful that this case will have a considerable amount of
precedential value and the wrong impression ought not to be created that favourable
treatment is or will be available even in very serious cases involving dishonesty such as the
case here. As the Disciplinary Committee submitted, the offences here were without
extenuation and systematic. There is undoubtedly a stigma attaching to persons who have
been convicted of thefts in these circumstances. In regard to the applicant's moving plea for
forgiveness and the alleviation of his family's suffering, I note that he is in fact gainfully
employed albelt under close supervision and on a reduced remuneration package. The support
given by the Law Association and Mr. Kawanambulu was cautious and guarded. In short, there
was still that lingering doubt and this was not good for the applicant's case. In an effort to
seek a compromise, it was mooted at my suggestion whether I might not consider restoration
on strict conditions, such as requiring that the applicant should thereafter only be able to
practice in public institutions where no practising certificate is needed or where he would not
be called upon to take charge of client's funds. In the event, there was no basis for
introducing such a consideration into this application when there was no evidence that any
such public institution had made an offer to employment. The only offer of employment
indicated in the proceedings was from his current employer who has permission from the
Disciplinary Committee on fairly strict conditions.

This has been difficult case but I have not found any special or compelling factors or indeed
any ground founded on principle and the public interest or the interest of the profession to
invoke the rare jurisdiction conferred by Section 33 of the Legal Practitioners Act. The
application is refused. However, I make no order as to costs, since the case raised a matter of
general interest to the profession.

Application refused

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