Tendai Gukutikwa
Legal Position with Trust Maanda
ABUSE of process in law is generally where one uses the law or court process for purposes other than its intended function, often with the intent to harm or delay the other party.
This includes actions like deliberately delaying a case, filing frivolous and vexatious lawsuits, or defending the indefensible.
B.D. Crozier in his Legal Ethics, 2009 handbook speaks about what amounts to abuse of process on Page 16 where he says: “It is impossible to define comprehensively what is meant by an abuse of court process, but in general terms it would take place when the court’s procedure is used by a litigant for a purpose for which it was neither intended nor designed, to the prejudice or potential prejudice of another party to the proceedings. It may also take place when a litigant institutes proceeding that are obviously unsustainable.
“A legal practitioner must not abuse court process e.g. he must not enter an appearance to defend when there is no defence, and must not use court procedures to intimidate the other side or delay matters. He should not file bogus pleadings. Needless to say, he must not deliberately alter court process for that usually amounts to forgery or fraud.”
Every person has a right to approach the court and have their day in court, but they must exercise that right responsibly so that only deserving cases are brought to or remain in court for adjudication.
It is unethical and an abuse of court process for litigants and particularly lawyers to waste the court’s valuable time presenting unarguable cases.
It is not right to flog a dead horse in the hope that it will somehow resurrect.
The cases of Selex Es P.A v State Procurement Board and Indra Sistemas Sa (Private) Limited V Civil Aviation Authority Zimbabwe Sc45/16 are examples of cases where a party, though their lawyers, were regarded as raising spurious arguments and refusing to concede.
The court said despite overwhelming evidence staring him in the face, the legal practitioner refused to concede. He had no meaningful legal argument to proffer, but “he fastened onto his puerile appeal”.
The court said the right to have one’s day in court must be exercised responsibly with due care not to abuse court process.
It said: “It is rather unethical and an abuse of court process for litigants and particularly lawyers to waste the court’s valuable time presenting dead unarguable cases in the vain hope that flogging a dead horse will somehow resurrect it to life.”
In that case, the court went on to say appeal proceedings were never intended or designed to facilitate a hopeless fishing expedition in the Supreme Court “in the futile hope of catching something in an empty pool”.
This is for the simple, but good reason that the appeal court has no remedy to offer in frivolous and vexatious appeals. Thus, appeals of this nature are simply a waste of time and money for everyone concerned.
Where a legal practitioner institutes or defends action with full knowledge that there are absolutely no reasonable prospects of success, he or she may be ordered to personally bear wasted costs occasioned by his or her wrongful conduct.
Lawyers have a duty to their clients, but their duty to the court is paramount because a legal practitioner is an officer of the court.
His or her duty is first and foremost to no one else, but the court. The oaths which they took when they were admitted into the profession call on them to always remain truthful with themselves, with the court, with fellow legal practitioners and with those whom they represent in, and out of court.
A lawyer’s duty to court obliges him or her not to abuse court process by defending the indefensible in a court of law.
He or she also has a duty to advise his or her client properly. A lawyer has a duty to advise his or her clients properly regarding the law and procedure.
A lawyer owes a duty to the court not to help in instituting proceedings which amount to an abuse of court process.
A lawyer’s duty to court does not conflict with his or her duty to his client. The two duties are complementary and designed towards achieving justice which is the primary aim and object of all judicial proceedings.
Lawyers should not sacrifice justice and public interest due to pressure from their clients.
Litigants must not put pressure on their lawyers to just go to court or defend where there are no reasonable prospects of success.
Don’t tell your lawyer this: “If the law is on my side, argue the law; if the facts are on my side, argue the facts. But if neither facts nor law are on my side, just argue.”
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
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