Obey Chikarati v O.K. Zimbabwe Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/262/20
HELD AT HARARE ON 23RD SEPTEMBER, 2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/262/20

HELD AT HARARE ON 23RD SEPTEMBER, 2020   CASE NO. LC/H/APP/126/20

AND 20th NOVEMBER, 2020			         X REF: LC/H/296/18

In the matter between:-

OBEY CHIKARATI								Applicant

AND

O.K. ZIMBABWE LIMITED		 				Respondent

Before the Honourable Mhuri, J.

For Applicant	:	Mr. R. Dembure (Legal Practitioner)

For Respondent	:	Mrs. R. Matsika (Legal Practitioner)

MHURI J.

In a judgment LC/H/60/20 I dismissed applicant’s appeal in its entirety.  Aggrieved, applicant filed the current application for leave to appeal to the Supreme Court.

On the date of hearing of this application, applicant made an oral application for the removal of the bar operating against him for failure to file timeously his heads of argument as required in terms of Rule 26(1) of this Court’s Rules S.I. 150 of 2017.

The application was made in terms of subrule 2 (b) which provides for such an application.

Let me haste to point out that whilst the Rules provide for oral applications on the date of hearing, it is advisable that where a party had been put on notice by the other party several months before, a chamber application be made so as to allow the other party and the Court to fully interrogate the explanation given for the non-compliance with the Rule.  This also prevents the legal practitioner from giving unsubstantiated evidence from the bar as what happened in casu.  See –

AFRICAN BANKING CORPORATION OF ZIMBABWE AND ANOTHER

vs

LESLEY FAYE MARSH (PRIVATE ) LIMITED T/A PREMIER DIAMOND & OTHERS HH 425/16

The requirements which the Court has to consider in an application for the upliftment of the bar such as this one are the same as those to be considered in an application for condonation of late noting/filing of an appeal/application.

These are:

the duration of the delay;

the explanation for the delay;

the prospects of success in the main matter;

In casu, the length of the delay is (1) day, the heads of argument having been filed on Monday the 8th June 2020 instead of Friday the 5th of June 2020.  This one day delay is not inordinate and is taken as a reasonable delay.

This delay was due to the fault of applicant’s legal practitioner, as submitted by him.  His explanation for the delay was that a weekend before the 5th June 2020 he travelled to Chiredzi to attend a funeral of his father in law.  He was confident that by Thursday he would have been back in Harare to file the heads of arguments on time. Unfortunately the burial arrangements were changed to Saturday the 6th June 2020.

It was on Thursday the 4th June 2020 that he liaised with his assistant Mr. Ndoro who then only filed the heads on Monday.  The Legal practitioner accepted the blame for having communicated with Mr Ndoro late who according to him, was not familiar with the case and had to go through the thick file.

The legal practitioner urged the Court not to visit his sins onto the applicant.

As stated earlier, had applicant’s legal practitioner filed a chamber application for the upliftment of the bar, he could have filed a supporting affidavit from his assistant, he could have substantiated his explanation with evidence instead of giving unsupported evidence from the bar,  As correctly submitted by respondent this could have enabled Respondent and the Court to properly interrogate his explanation.

Be that as it may, the question is, is the explanation reasonable?  As accepted by applicant’s legal practitioner he was tardy in the manner he handled this matter.  He waited until a day before the heads of argument were due to instruct his assistant to prepare and file them.  He was well aware that the file was a thick one which he had to go through.  He did not state when he came to know about the change in the burial dates.  With all these grey areas the explanation is not satisfactory.  Applicant cannot escape the tardiness of his legal practitioner as such the sins of his legal practitioner are to be visited squarely on him as the legal practitioner is his chosen agent.

As regards prospects of success in the main application, all the legal practitioner submitted was that applicant believes he has reasonable chances of success.  It was only in his reply to respondent’s submissions that applicant briefly touched on the prospects of success of his application.  It is my finding that he failed to pass this hurdle

Applicant intends to approach the Supreme Court on 3 grounds.

Ground 1

The count a quo erred in law by admitting documentary evidence in the form of Shop Easy Staff Information Booklet and the Promotional Rules produced by the Respondent for the first time on appeal.

I do not believe that this ground of appeal enjoys any prospects of success at all.  When one reads through the judgment nowhere is there any reliance on the Shop Easy Staff Information Booklet and Promotional Rules.  The Court’s decision was based from analysing the evidence placed before and relied on by the Disciplinary Committee.  These findings were upheld by the Appeals Committee.  Further, as the Court did not rely on the said Booklet, there was no prejudicial effect on the applicant.

Ground 2

The court a quo erred in law by concluding that it was reasonable for the Disciplinary Committee to find the appellant guilty of the charges when it admitted that there were unanswered questions arising from the respondent’s evidence that made it difficult to conclude that the respondent had proved its case on a balance of probabilities.

This ground suffers the same fate as ground 1.

It has no prospect of success at all.  The relevant paragraph applicant refers to reads as follows:

“While there could have been a business relationship between appellant and the Rwinikizas, why would they complain if appellant and not them was the customer and would rightly be entitled to the points.  Further, why would the Buying Assistant be disappointed and decide to report to the Branch Manager.”

A reading of the above, clearly does not show that the Court was admitting that there were unanswered questions.  As rightly submitted by Respondent, the applicant misunderstood the sentiments the Court was putting across.  These were rhetorical questions which should be taken to address the apparent lack of likelihood of the events happening as the applicant wanted the Court to believe.  I am of the view that the Supreme Court would accept the respondent’s submissions as opposed to applicant’s submission.

Ground 3

The court aquo erred in law by upholding the appellant’s convictions when the evidence extracted from the written statements was riddled with questions about the authenticity or veracity of the statements; was not corroborated and in light of the appellant’s evidence was woefully inadequate to safely conclude that the respondent had proved its case.

While in his reply to respondent’s submissions on this ground, Appellant‘s legal practitioner submitted that it was not about authenticity of statements but relates to veracity, it is to be noted that the ground mentions both authenticity and veracity of the statements.  Applicant did not show through his submissions how the Court’s judgment will be impugned by the Supreme Court considering that the judgment clearly analyses the witnesses statements and evidence which the Disciplinary Committee relied on in finding applicant guilty.  It is a trite position of the law that, the burden of proof in civil matters such as is this one is lower and is on a balance of probabilities.

Further during the hearing of this appeal on the 21st May 2019 applicant abandoned a similarly worded ground of appeal.  As rightly submitted by the respondent he cannot be allowed to raise it in the Supreme Court

In my view, the findings by the Court upholding the Appeal’s Committee findings are unassailable and I am not pursuaded that the Supreme Court will find otherwise.  The prospects of success are not there.

To that end therefore I find that though the delay is not inordinate, the application for the upliftment of the bar cannot be granted as the explanation is not satisfactory and the prospects of success are nil.

In the result, the applicant remains barred and shall not be allowed to make submissions.

Accordingly, it is ordered that,

the application for the upliftment of the bar operating against applicant be and is hereby dismissed.

The Registrar is directed to call the parties for the finalisation of the application for leave to appeal to the Supreme Court.

MABULALA & DEMBURE – Applicant’s legal practitioners

WINTERTONS – Respondent’s legal practitioners