Coltart law firm in trust funds storm

A LITIGANT who approached Webb, Low and Barry in which Citizens Coalition for Change (CCC) aspiring councillor for Ward 4 in Bulawayo, Mr David Coltart, is a senior partner has taken the law firm to court for allegedly failing to remit US$13 000 in trust funds.

Mr Ndabezinhle Lorenzo Maseko, through his lawyers Ndlovu, Mehluli and Partners, filed summons at the Bulawayo Provincial Magistrate’s Court under case number 41/22 citing Webb, Low and Barry, Mr Coltart and his partners Mr Josphat Tshuma and Ms Chetna Lutchman as defendants.

In papers before the court, the plaintiff said sometime in 2013, he instructed Webb, Low and Barry through Mr Stanley Bruce Alfred Longhurst, who was then partner, and later Mr Stephen Collier, to recover a debt of US$47 000, which he was owed by Bekezela Zonde and Shorayi Zonde.

Summons were issued on behalf of the plaintiff under case number HC2610/10 and a summary judgment was sought under case number HC961/13 on August 15, 2013.

“During the course of the proceedings, certain amounts were paid towards clearing the US$47 000 debt until US$19 000 remained in dispute. The defendants under case number HC961/13 tendered payment in the sum of US$16 000 to clear the debt, which they acknowledged,” stated Mr Maseko in court papers.

He said subsequent to that, the amounts of US$5 000, US$8 000 and US$6 000 were deposited into Webb, Low and Barry’s trust account on different occasions between September 25, and December 23, 2015.

Maseko said he only became aware that Webb, Low and Barry had received the payment on his behalf on April 28, 2021, after he was informed by his current lawyer.

“Defendants contrary to their legal obligation maintained their position that no payment had been made. They only acknowledged such payment on May 10, 2021 and then offered to pay me $13 000 in RTGS seeking reliance on Statutory Instrument 33 of 2019,” he said.

S.I. 33/19 clearly provides under Section 4(1) (d) that: “. . . for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in Section 44C (2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollars.”

Mr Maseko argued his relationship with Webb, Low and Barry was purely “attorney-client” as opposed to a “debtor-creditor” one.

“The failure to adhere to the tenets of this ‘attorney-client’ relationship and remit funds when they became due, has in light of defendants offered to pay $13 000 RTGS caused prejudice to the plaintiff. The value of the United States dollar and the RTGS are not the same,” he said.

“Had defendants paid my dues upon receiving the money in 2015, there would be no loss anticipated by reason of S.I. 33 of 2019.”

Mr Maseko argued that his loss is directly linked to Webb, Low and Barry’s neglect of their duties.

“The defendants have failed to protect my funds and assets and as per their legal obligation and have caused me to suffer damages or loss, which they are obliged to indemnify me of,” he said.

Mr Maseko is seeking a court order compelling Webb, Low and Barry to deposit US$13 000, being the trust funds not remitted, into his bank account or equivalent in local currency at the prevailing interbank rate.

He said in the event one of the defendants pays the money, the others should be absolved. Mr Maseko wants the law firm to pay the money or its equivalent in local currency at the prescribed interest rate calculated from December 23, 2015, to the date of full payment including the legal costs.

In its defence, Webb, Low and Barry argued that the defendants in case number HC961/13 failed to notify them of the payments made, resulting in the money being credited to an unallocated account.

“We wrote through our employees on February 6, 2017 and June 21, 2017 to the defendants’ lawyers in case number HC961/13 enquiring whether payment had been made, but never received any reply,” argued Webb, Low and Barry.

The law firm said it entered into a deed of settlement on June 24, 2016 in case number HC3693/12 in terms of which Mr Maseko admitted liability to ZABG Bank in the sum of US$22 000.

“Pursuant to the deed of settlement, Webb, Low and Barry paid ZABG Bank through its legal practitioners the sums of US$3 000 on June 10, 2016, US$6 000 and US$3 000 on May 6, 2016,” said the law firm.

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“Notwithstanding the obligations plaintiff had in the deed of settlement in case number HC3639/13, the plaintiff made no inquiry with Webb, Low and Barry regarding payment meant to be made by defendants in case HC961/13 between 2017 and 2019 when the plaintiff collected the file on July 16, 2019.”

Webb, Low and Barry is denying that it neglected to remit the funds to Mr Maseko as alleged. The law firm said it was not aware that payments had been made by the defendants in case number HC961/13, and was unable to identify that the funds credited to the unallocated deposit account belonged to Mr Maseko.

“The defendants aver that they were only advised by the plaintiff’s lawyers of the payment of the monies on April 29, 2021, when the funds were identified. The funds were deposited with Webb, Low and Barry before February 22, 2019, the date when SI33 of 2019 was promulgated and accordingly, were expressed in US dollars prior to SI33 of 2019,” said Webb, Low and Barry.

“By operation of law, the US$13 000 held by Webb, Low and Barry on February 22, 2019, were converted to RTGS$13 000 on that date and remain so. The defendants deny that they have acted negligently or in breach of the Legal Practitioners Act or its regulations.”

Webb, Low and Barry wants Mr Maseko’s claim to be dismissed with costs. In a letter dated December 15, 2022, and addressed to Mr Coltart, the Law Society of Zimbabwe (LSZ) executive secretary, Mr Edward Mapara stated that his law firm has been found guilty of unprofessional conduct for failure to execute the client’s mandate with diligence in contravention of By-Law 3 (35) of the Legal Practitioners (Code of Conduct) SI 37 of 2018.

“Council at its meeting held on October 25, 2022, considered the complainant lodged against you and your responses. Council noted that indeed the failure to pursue the matter when there was no apparent payment was improper conduct,” read the letter.

“Council resolved that you be found guilty of unprofessional conduct for failure to execute the client’s mandate with diligence in contravention of By-Law 3 (35) of the Legal Practitioners (Code of Conduct) SI 37 of 2018 and that you be asked to mitigate. Kindly let me hear from you within the next 14 days.”

Responding to the LSZ letter, Mr Coltart said the letter is misleading, arguing that he never handled the case in his personal capacity.

“Aside from the fact that this letter has been appealed against, it refers to a lawyer who left our firm in 2017. I suggest that you get confirmation of this from the executive secretary of the Law Society who will confirm that this letter was not written to me in my personal capacity, but in my capacity as a senior partner of the law firm,” he said.

“If you write anything suggesting that this is directed at me personally, legal proceedings will be instituted against you personally and the Chronicle for substantial damages for defamation. I have an unblemished record in his 40 years of legal practice, something which can also be confirmed by the Law Society.”