The Zimbabwean advocate is, at its simplest, a type of lawyer who provides services to other lawyers. Some non-lawyers misunderstand the term. Sadly, they are just as often misled by some lawyers and others who ought to know better. There is thus a measure of confusion for some who are curious about what an advocate really is but may have been confounded by misuse of the term. Happily, the true explanation is simple enough.
The Zimbabwean advocate is a counterpart to the English barrister: a lawyer who focuses on contentious legal matters and accepts instructions only from attorneys. These attorneys seek specialised services in the written and oral presentation of cases in court or research into questions of law. Advocates differ from attorneys principally in that they practise only on referral and work as consultants to lawyers, while attorneys accept instructions from members of the public.
The professional roots of the Zimbabwean advocate derive from Roman-Dutch law. The legal system in what ultimately became the Netherlands embraced the division between advocates and attorneys from the start.[1] That Roman-Dutch legal system was eventually imposed upon South Africa in the 1600’s, where the distinction between attorneys and advocates had become entrenched by 1877.[2] In the case what is now called Zimbabwe, it would appear that the South African statutes regulating the profession applied here[3] until there was established a legislature that enacted measures of its own as of the early 1900’s. These laws were framed on the same principle as the South African legislation, with the last being the Advocates Act [Chapter 216] and the Attorneys Notaries and Conveyancers Act [Chapter 218]. No one could be an advocate and an attorney at the same time,[4] and it was only advocates who were allowed to appear in the superior courts in the normal course.[5]
After independence, the Legal Practitioners Act, 1981,[6] repealed both of those statutes. Although that Act did not define “legal practitioner”, and without speaking to the continuing practical distinction, it substituted references in other laws to either “advocates” or “attorneys” with that term. It also spelt out a single admission process for those who wished to practice in either branch of the profession. Those who were already practising as either attorneys or advocates were permitted to continue as before. The Act remains on the statute books as the Legal Practitioners Act [Chapter 27:07], just as the divided practice of attorneys and advocates continues to this day.
The net result is that
“there exists a de facto divided profession in Zimbabwe as there are lawyers who practice (sic) as advocates and voluntarily regulate themselves in the same way as advocates/barristers did in the [statutory] divided system.”[7]
The repeal of the statutory definition of “advocate” did not change the meaning of that term and advocates continue to be exactly what they have always been. As Madhuku has observed, the main motivation for the changes in 1981 would appear to have been political. The vast majority of advocates were white, so restricting audience in superior courts had the practical effect of limiting that right mainly to white lawyers.[8] What the Act did was to leave the advocate’s profession intact but break the advocate’s monopoly over audience. As the High Court noted 25 years later, “the basic differences between the two types of legal practitioners” remain.[9] The Act just produced a new similarity: the members of both branches may appear in the superior courts.
Of the fundamental differences between the two branches of the profession, the most glaring would be that advocates take instructions from attorneys while attorneys take instructions from the public. Advocates thus do not keep files of client’s cases, but rather accept briefs of attorneys’ instructions and return them on completion. Unlike an attorney who may be instructed by any member of the public in open-ended terms to “handle my matter,” an advocate is briefed by an attorney to undertake some specific task in prosecuting a case or to advise on some specific question in a matter that the attorney is already working on.[10] Accordingly, advocates do not accept money from or on behalf of members of the public, and are not allowed to operate trust accounts.[11] Attorneys, on the other hand, are legally obliged to maintain trust accounts to deposit all moneys that they receive on behalf of the public.[12] This is a vital distinction for the sake of members of the public for whose protection the trust accounts are required.
Another important difference lies in the qualifications required to begin practice as an advocate. A practitioner must have worked for a minimum of three years as an employee of a law firm and have passed certain examinations. That is because this process is compulsory for any legal practitioner to practise as a principal. Advocates practice for their own account and independently of each other as sole practitioners. Therefore, any practitioner who did not acquire the prescribed experience but claims to be a Zimbabwean advocate on any basis whatsoever does so in glaring defiance of the law.[13] Also, a lawyer who is actually an attorney but claims to be an advocate misleads the public.
For a member of the public to be misled as to who is or is not an advocate can have significant and harmful practical consequences. Lawyers who were never employed in a law firm for at least three years but claim to be advocates are practising illegally. The validity of the judgments granted in cases where they appear could be questioned one day. In a less drastic example, since advocates may not have partners or professional assistants, a client who is misled into thinking that an attorney is an advocate would simultaneously be misled into thinking that they are paying for the personal and direct work of that lawyer alone. That client may instead be served by the fake advocate’s associates, and only after the falsehood has misled them into paying fees. None of this harm need ever arise if the stark distinction between the two branches of the profession is respected by the profession itself for the good of the public whom it is meant to serve.
So the Zimbabwean term “advocate” is actually delightfully clear in its meaning and application. An advocate is a legal practitioner who, having gained the necessary qualifications after registration, practises for their own account as a consultant to attorneys who instruct the advocate to perform specific tasks or advise on questions arising in matters being worked on by those attorneys. The Law Society of Zimbabwe’s draft Social Media Policy released in January 2021 recently identified an apparent source of the unnecessary confusion in some quarters. Under the heading “Dishonesty and puffery,” the draft proposes to proscribe the malpractice of misusing titles, such as “attorneys or pupils referring to themselves as advocates.” One hopes that the cases where the public suffer harm from such dishonesty remain few, and that clarity will quickly prevail to stamp out the puffery.
[1] L Wildenboer, “The Origins of the Division of the Legal Profession in South Africa” Fundamina: A Journal of Legal History 16(2) 2010 pp 199 – 225 at p 207.
[2] Wildenboer, loc cit, at p 220.
[3] Linnington recounts the establishment of a High Court several years before the creation of a Legislative Council: G Linnington, Constitutional Law of Zimbabwe, §1.2. Appeals from that court lay to the Cape Supreme Court, suggesting very strongly that the officers first appearing in that High Court would have been those admitted at the Cape – or, at least, would have been regulated on the same basis.
[4] Attorneys, Notaries and Conveyancers Act [Chapter 218], s 18.
[5] Advocates Act [Chapter 216], s 17.
[6] Act 15 of 1981.
[7] L Madhuku, An Introduction to Zimbabwean Law (2010), p 87.
[8] Madhuku, op. cit., p 86.
[9] Choto v Commercial Bank of Zimbabwe & Anor 2006 (2) ZLR 277 (H) at 281C.
[10] Rosemann v General Council of the Bar of South Africa 2004 (1) SA 568 (SCA) para [29].
[11] This is a condition imposed by the Law Society of Zimbabwe in terms of s 77(3) of the Legal Practitioners Act when issuing the practicing certificate that is specific to advocates.
[12] Legal Practitioners Act, s 13. See also de Freitas v Society of Advocates of Natal & Anor 2001 (3) SA 750 (SCA) at para [11].