Power of attorney: does it give non-lawyers the right to litigate?

8 December 2023 · Carmel Rickard

Complaints about ‘fake lawyers’ have been surfacing in several African jurisdictions. But what about people who don’t even pretend to be lawyers? What if they claim instead that even though aren’t legally qualified, they have the right to represent a ‘client’ in court, via a power of attorney? A new Zambian judgment makes clear that the courts in that country at least, will take a tough line should they be faced with such a claim.

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When Killian Mwiinga sued Emmanuel Chama over a land dispute, it quickly became clear that even before the question of ownership of the disputed plot was sorted out, there was a more pressing problem to resolve.

That issue was Mwiinga’s standing to argue the case: Mwiinga, who isn’t a qualified lawyer, brought the action on behalf of someone else on the basis of a power of attorney. And the Zambian high court judge hearing the matter, Charles Zulu, said he wasn’t going to tolerate it.

According to Mwiinga’s papers, he was suing in his own name, on behalf of Gregory Mainza. He (Mainza) had given Mwiinga a ‘power of attorney’ to represent him in court over a claim that he, Mainza, should be declared the legal owner of a certain plot of land.

Does 'power of attorney' give someone the powers of an attorney?

Chama’s legal team took issue with the situation and asked the court for a ruling on whether Mwiinga should be allowed to appear in court and argue the case on behalf of Mainza. Did a power of attorney given to Mwiinga by Mainza, authorise Mwiinga to appear in the role of an attorney and argue a matter for Mainza?

When the issue of Mwiinga’s right of appearance was argued, Chama’s legal representative said there was no rule that allowed ‘the conduct of litigation through a power of attorney’.

Mwiinga, however, said he should be allowed to appear and sue in his own name as ‘attorney’ for Mutika, and that this was not the first time he had done so.

Reproachable conduct

The judge’s view was clear: there was a ‘growing reproachable conduct by unqualified persons abusing court processes’ and making a living out of doing so, he said. The court needed to respond by censuring the behaviour and interdicting those involved.

Zulu said these ‘busy bodies’ weren’t legal practitioners but claimed to have ‘some knowledge of the law.’

They often approached court registries to issue court processes in their own names on behalf of someone else, or say they have a power of attorney to do so.

Imposters preying on unsuspecting litigants

Mwiinga wasn’t an advocate of the Zambian courts, nor was he ‘personally aggrieved’ by Chama.

While Mainza had the right to sue in his name or through representation, this had to done in a way that the law permits.

In a case like this, the court couldn’t ‘play possum to impostors preying on unsuspecting litigants or colluding with potential litigants’ to get around the provisions of the Legal Practitioners Act, using the façade of a power of attorney, said Zulu.

Protecting the 'nobility and purity' of the legal system

Legal practice was ‘strictly reserved to qualified professionals’, he said. ‘This reservation is necessary for the public good, to protect the nobility and purity of the legal system, by ensuring that members of the public seeking legal services are sincerely and competently served by qualified professionals, rather than by charlatans.’

The law was plain and unambiguous, he concluded: Mwiinga wasn’t allowed to do what he was doing.

In his argument, Mwiinga had put forward the proposition that if he didn’t help, Mainza ‘would perish for lack of access to justice.’ This was a dead-end argument, said Zulu. ‘It is trite law that no authority can be given to do an illegal act’ and what Mwiinga was trying to do was illegal.

'Absentee litigants'

While someone could empower someone else to sue on their behalf, the action had to be brought in the principal’s name. Further, it was illegal for an unqualified person to prepare any document to use in any ‘proceedings in law’ and to charge for it.

In the case of Mwiinga, it was plain that he was ‘one of the busy bodies abusing our court processes for a living, through the illegal use of the power of attorney to use in his name on behalf of “absentee litigants”.’ Given the amount of work by him seen in the courts, he wasn’t acting for free. ‘He does it for a reward.’

If the courts allowed such activities to continue, it would be like allowing ‘unqualified persons or misguided busy bodies’ to operate in hospitals and clinics, based on some rudimentary knowledge. In the medical field this would lead to ‘untold mortalities of unimaginable scale’, while in the courts of law ‘it would lead to countless cases of abject irreparable injustice.’

The papers in this case couldn’t simply be amended to reflect that Mainza was the applicant, as the irregularity was ‘terminally incurable’. It illustrated a ‘concerning reality of how the courts and the legal system can be hijacked and abused by unqualified persons.’

‘The appropriate sanction’ was to dismiss the action for ‘abuse of court process’, and to ‘strongly admonish the perpetrator to immediately shut down his illegal “chambers”.’

'Conscious abuse' of court process

‘There is no room for compromise, especially where there is conscious abuse of court process by unqualified persons pretending to be advocates, or indirectly practising law’, Zulu declared.

He therefore dismissed the original case on the basis that Mwiinga didn’t have standing to bring it, and because he had abused court process. Mwiinga and Mainza were also ordered to pay the costs of the matter.

The only glimmer of hope for Mainza is that the court stressed he had the right to bring a fresh action – in his own name.

* A matter of justice, Legalbrief, 5 December 2023

Carmel Rickard

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