Zimbabwe Anti Corruption Commission v Edwin Mubatari

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/37/2021
HARARE, 16 MARCH 2021
9 APRIL 2021
CASE NO LC/H/APP/711/18
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/37/2021

HARARE, 16 MARCH  2021&			   CASE NO LC/H/APP/711/18

9 APRIL 2021

In the matter between:-

ZIMBABWE ANTI CORRUPTION COMMISSION`	APPLICANT

And

EDWIN MUBATARIPI					RESPONDENT

Before the Honourable Kudya  J

For the Applicant		Mr I. Ndudzo  (Legal Practitioner)

For the Respondent		Mr A. Chambati (Legal Practitioner)

KUDYA, J:

This matter was set down as an application for leave to appeal to the Supreme Court.  On the hearing date the applicant applied that the bar operating against it vis filing of Heads of Arguments be uplifted. Respondent objected to the upliftment of the bar and moved the court to  rule that the applicant is barred for want of filing heads of argument on time.  This judgment therefore concerns itself with the point in limine vis the upliftment of the bar only.

The applicant prays that the bar operating against it be uplifted because the lawyer who was handling the matter died before he had filed the heads of argument.  It says that it has now sought to regularise the position by filing the heads of argument.  It therefore prays that its default be condoned and that it be allowed to file the heads so that the matter can be heard on the merits.

On the other hand the respondent opposes the relief sought.  He says that applicant is not sincere in the relief of the upliftment of the bar.  He says heads should have been filed way back in 2018 and the death of the lawyer only occurred 2 years later in 2020.  In his view whilst the lawyer’s death is regrettable the death excuse is not sincere if one looks at the time lapse between when heads were due and when the lawyer died.  His conclusion is that the upliftment application is a gimmick calculated to deny him relief as is the leave to appeal application. In the result he moves that the court find that the application is irregular and that it should fail.

In its right of final response the applicant mentions that its application is a good application which ought to be granted to allow that the matter be concluded on the merits.  It controverts the argument that it lacks sincerity. Its view is that if the respondent felt that he had been taken by surprise with the application it was within his rights to seek a deferment of the matter to allow him a chance to respond.  It says since the rules allow for such an application to be made orally from the bar on the day of the hearing there is nothing irregular in its seeking such relief.  In the result it persists with its prayer that the bar be uplifted.  It is settled law that condonation is not for the mere asking. See Chubb Union Zimbabwe v Chubb Union Workers SC-1-01.  It is an exercise of the courts discretion to balance the interests of justice to see whether the grant or denial of such relief can aid or impede justice.

On the excuse platform it is clear that the death of the lawyer has no cogent nexus with the late filing of the Heads of Argument.  It is clear that the Heads of Argument became due way before the demise of the lawyer.  The court is persuaded that there is no sincerity on the applicant’s part to say that its default is attributable to the lawyer’s death.

On the merits plane the applicant intends to advance the argument that the Supreme Court may find differently on the issue where a purported consent judgment was entered into between the parties.  The critical question that then arise is what point of law does the applicant want the Supreme Court to address. A point of law is clearly desired See Sable Chemicals v Easterbroocke SC-18-10.  In the light of the quoted case it is clear that there is no legal question that the Supreme Court is being invited to decide on.  This makes the merits plane of the application porous.  The cumulative effect of the insincere excuse and porous merits of the main matter, shows that no good case for the uplifting of the bar has been made out by the applicant. In the result the application for upliftment of bar must fail.

IT IS ORDERED THAT

The application for upliftment of bar operating against application vis filing of Heads of Argument being without merit it be and is hereby dismissed with each party baring its own costs.

Mutamangira & Associates, Applicant’s Legal Practitioners

Chambati Mataka & Makonese Attorneys at Law, Respondent’s Legal Practitioners