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Fidelis Munyoro-Chief Court Reporter
Deregistered Harare lawyer, Moses Shingiriro Chinyenze’s fate was sealed after the Supreme Court threw out his appeal to quash his conviction for abuse of trust funds.
Chinyenze, who had practised for 34 years, was convicted by the Legal Practitioners’ Disciplinary Tribunal in 2018 for abuse of trust funds before he was removed from the legal practitioners’ register.
His law firm, MS Chinyenze & Associates, was placed under curatorship for the administration of its trust and business accounts.
Through his legal counsel, Chinyenze appealed to the Supreme Court against the Tribunal decision handed down on April 3 2019 in which it was found that the lawyer was not a fit and proper person to remain registered as a legal practitioner as he had acted in an unprofessional, dishonest and unlawful manner.
Trouble for Chinyenze started on October 30 2015, when the Law Society of Zimbabwe (LSZ) received a complaint about his conduct from Mrs Noreen Chikaka of Regional Executors and Trust (Private) Limited, who had been appointed the executrix of the estate of the late Christopher Taruvinga Chimbumu on May 24, 2014.
She claimed that before the demise of Chimbumu, he had been married to Florence Chimbumu but the two had since divorced.
But the couple had entered into a consent paper in terms of which they donated their house in Cotswold Hills, Harare, to their five children.
Pursuant to the consent paper, Chinyenze had been appointed by the Registrar of the High Court, as conveyancer for the purposes of transferring the immovable property into the names of the five children.
In terms of the order of the High Court, the transfer to the children was to be effected by October 31 2007. However, this stipulation was not met. As at 22 August 2013, that being the date of Chimbumu’s death, the transfer to the beneficiaries had still not been effected.
In the course of her duties, Mrs Chikaka sold the immovable property to one Joseph Ngondonga after having sought and obtained the consent of both the Master of the High Court and the beneficiaries. Mrs Chikaka appointed Chinyenze’s law firm to execute the transfer of the property to Mr Ngondonga as the lawyer had previously been appointed as conveyancer before the death of Chimbumu.
All the letters of administration and consent to sell from the beneficiaries, fees for rates clearance and capital gains tax clearance certificate were handed over to Chinyenze so that he could facilitate the transfer.
Chinyenze then instructed Mr Ngondonga to pay US$8 450 directly into the appellant’s trust account. The appellant was also said to have been paid for the transfer of the property during the lifetime of the late Chimbumu.
Despite these respective payments having been made, the transfer was not effected. Mrs Chikaka’s futile attempts to contact the appellant resulted in her writing a complaint about the matter to the respondent.
The superior court was called to decide whether the finding by the Legal Practitioners Disciplinary Tribunal, that Law Society of Zimbabwe had proved beyond reasonable doubt its case of misconduct against Chinyenze, was proper.
Chinyenze was accused of abusing his client’s trust monies, failed to account to client, failed to execute the client’s instructions and failed to update the client on the progress of the matter, and hence breached society’s by-laws of 1982.
After hearing submissions by both parties’ counsel, a three judge bench unanimously agreed that the appeal had no merit and tossed it out, after considering all the grounds of appeal raised by Chinyenze.
Writing the judgment for the court, Justice Susan Mavangira agreed that the Tribunal did not find any valid explanation from Chinyenze for this state of affairs, particularly in view of the fact that the late Mr Chimbumu had paid capital gains tax, obtained the certificate thereof and had had the property valued.
“On a holistic view of the matter, the finding by the Tribunal that the respondent (LSZ) had proved beyond reasonable doubt its case of misconduct against the appellant was proper as it is borne out by the evidence on the record,” she said.
“For completeness, this court finds no misdirection on the part of the Tribunal in imposing the penalty that it did when consideration is given to the following.”
The superior court also noted that as at the date of the determination of the matter by the Tribunal, 12 years had elapsed with Chinyenze failing to effect the transfers of an immovable property as prescribed by an order of court, initially, during the lifetime of Mr Chimbumu and subsequently, after the death of Mr Chimbumu, as mandated after appointment by the executrix.
There was no evidence of the necessary efforts having been made to ensure the execution and completion of Chinyenze’s mandate.
She said Chinyenze misappropriated funds and failed to account for them to those who paid him noting that what was also more damning against him was the apparent or simulated belief that his actions in his dealings in the matter were innocent.
“It is our view that the penalty imposed by the Tribunal is unassailable on the facts of this matter,” said Justice Mavangira. “In conclusion, it is our view that the appeal has no merit and it is for these reasons that we dismissed it in its entirety after hearing the parties.”
In the lower court, Chinyenze argued that following the complaint by Mrs Chikaka, the matter was reported to the police and he was arraigned before the Magistrates Court for theft of trust property.
He said he was acquitted by the High Court at the close of the State case following an application for review before the High Court. In this case, he argued that in light of the discharge, the proceedings by the LSZ’s tribunal were therefore inconsequential and unwarranted.
Bongani Ndlovu
Online Reporter