The Malawi Law Society (MLS) has confirmed receiving a complaint against private practice lawyer Zwelithini Chipembere of Whyte and Cross Law Consultants, who is accused of withdrawing a case for his former client, former director of finance at Tobacco Commission (TC) Andrew Mfune, without consent.
MLS honorary secretary Gabriel Chembezi in an interview yesterday said: “Except in exceptional circumstances, we don’t publicly discuss matters that are at preliminary stages until after a certain stage to avoid prejudice to either party in the disciplinary process.”
Mfune took TC to court following his dismissal on July 19 2024, arguing that the disciplinary committee responsible for his dismissal was illegally constituted as it was appointed by the Comptroller of Statutory Corporations instead of the Minister of Agriculture, as mandated by the Tobacco Industry Act.
In an interview on Thursday, Chipembere, while admitting that he withdrew the case, argued that it became evident that an argument raised by the commission’s legal team, citing Section 42 of the General Interpretation Act, significantly impacted the case.
The lawyer added that the risks associated with proceeding under those circumstances were high, and that he had to make a tactical decision on the spot.
Said Chipembere: “The decision to withdraw the matter with liberty to restore it was taken to protect Mr. Mfune’s interests and avoid an adverse court ruling that could have been detrimental to his case.
“The legal landscape at that moment required swift action, and unfortunately, I did not have the immediate opportunity to consult Mr. Mfune before making the decision and since the commission’s lawyer had said he would object to an adjournment.”
Meanwhile, the High Court in Lilongwe on October 3 2024 granted Mfune an interlocutory injunction restraining TC from recruiting a new director of finance and advertising for the post.
Court documents in our possession also show that Mfune’s case was revived on August 29 2024, in a judicial review case number 55 of 2024 before Judge Simeon Mdeza.
In a telephone interview on Wednesday, Mfune’s new lawyer Mathews Chawinga confirmed that the case was revived and that the court has set November 5 as the next date for hearing.
In the complaint letter to the MLS dated August 22 2024, Mfune claimed he suffered harm due to the alleged unethical conduct of the lawyer.
The letter states that Chipembere assisted in preparing an application for leave for judicial review, which was filed at the High Court in Lilongwe.
“I was surprised since, as the claimant in the matter, I had not authorised anything to that effect,” Mfune wrote. “I tried to contact my lawyer, but he did not answer.”
At the court, Mfune was informed that the case had, indeed, been withdrawn by his lawyer and the opposing counsel Andy Kaonga.
Reportedly, on the same date the case was withdrawn a payment of K7 020 000.00 was made to the firm representing TC Wilkinson and Associates as legal fees for Mfune’s case.
However, a letter from former TC CEO Joseph Chidanti-Malunga, dated November 17 2023 (Ref. HRAD/SEC/2023), titled ‘Extension of Contract of Service – Provision of Legal Services to TC’, indicates that the services for Wilkinson and Associates had been extended from March 31 2024 to June 30 2024.
When asked to clarify on this development, Chilumpha explained that the contract for the firm was extended and will end in December.
He said: “Currently, the procurement processes for services whose contracts expired are underway.”
The complaint letter also urges the MLS to investigate the issue, relying on Section 87 of the Legal Education and Legal Practitioners Act (2017), which stipulates that every legal practitioner is subject to the jurisdiction of the High Court and the disciplinary committee in all matters of discipline.
The complaint also references Chapter 3, Rule 1 of the Code of Ethics and Section 89(2) (j) of the Legal Education and Legal Practitioners Act, which proscribes conduct that brings the legal profession into disrepute.
“I have suffered financially as I have been forced to hire another lawyer to continue the proceedings. Legally, lawyers work under the direction of their clients and are expected to advance their clients’ interests,” reads the letter.
In an earlier letter by Chipembere to TC CEO dated July 25 2024, on the invalidity of dismissing Mfune, he argued that the decision to dismiss him is void and without legal effect and that, consequently, Mfune would not comply with the instructions to surrender the commission’s property, including a motor vehicle and a laptop.
