Lawyer in Nyarota’s Daily News dismissal case fined for negligence

Geoffrey Nyarota

Doreen Vimbai Gapare, a former partner at leading Harare law firm, Scanlen and Holderness, was on Tuesday 5 February sentenced to pay a fine of $500 to the Law Society of Zimbabwe (LSZ) after they found her guilty of unprofessional and compromised conduct in handling a case on behalf of her client, journalist Geoffrey Nyarota.

Nyarota, the founding Editor-in-Chief of The Daily News, reported Gapare to the LSZ in February 2017 while accusing her of gross negligence in her handling of his unlawful dismissal by Association Newspapers of Zimbabwe (ANZ), publishers of The Daily News in May 2010. The matter has been before the courts since then. The matter went to arbitration and on 2 August 2011 Arbitrator Johnlife Mawire found ANZ guilty of summarily and illegally dismissing Nyarota from employment.

He awarded the journalist a total of $90 921 as compensation and damages. Gapare successfully applied for registration of this arbitral award at the High Court, where Justice Esther Muremba granted the application on 1 July 2015 as an order of that court for purposes of enforcing the award. Nyarota was requestedby Gapare to pay Scanlen and Holderness $650 towards the execution of the award by the Deputy Sheriff. While he paid, the execution was never enforced. Subsequent inquiry revealed that the amount had been transferred to Gapare’s account at the law firm on her instruction.

Meanwhile, ANZ had filed an appeal at the Labour Court against both judgment and quantification of the award. The court requested the parties to file respective heads of argument in order for the matter to proceed. Gapare, however, failed to file the submissions. By the time the matter was finally set down for hearing, 19 months later, she still had not done so. She later claimed that she had not made the submission because Nyarota was in arrears in payment of his legal fees. Nyarota argued that there was no record of any such demand having been made to him at the material time.

In any case, Gapare had given an undertaking in writing to the clerk of the Labour Court in November 2012 that she would submit the heads of argument by 2 December 2012. When the matter was finally heard on 10 July 2015 the Labour Court handed down a default judgment upholding ANZ’s application.

Gapare then assured Nyarota that she would apply for a rescission of the court’s judgment as it was without merit. She accused law firm, Gill, Godlonton and Gerrans, representing ANZ, of “snatching victory”. She also undertook to apply for condonation of her own late submission of the heads of argument. She filed neither application. Further, she assured her client that she would obtain from the Labour Court the reasons for the handing down of the default judgment. She did not do so. Nyarota personally approached the court, this against Gapare’s advice, only to find that it was his lawyer’s failure to submit the heads of argument that was, in fact, the cause of the judgment against him.

Nyarota reported Gapare to the Law Society in February 2017. The LSZ ruled in June 2018 that it was her duty as a legal practitioner, as long as she was seized with a matter, to protect the interests of her client, whether she was paid or not. The LSZ also ruled that it was unprofessional for Gapare to fail to file heads of argument simply because she had not been paid. As long as Gapare had not renounced agency, she had a duty and was professionally bound to file the heads of argument.

In considering the case, the Disciplinary and Ethics Committee of the LSZ also found that Gapare had improperly associated with ANZ’s chief operations officer, Sharon Samushonga, when she took to hugging her in the court room. Nyarota had complained that it was insensitive of his lawyer to display such affection in court towards his opponent.

With regard to the hugging the LSZ ruled that it created the impression that Gapare was now compromised, urging that she should be discouraged from doing so at all times. In his report to the LSZ Nyarota stated that an aggravating factor in the deterioration of the relationship between Gapare and himself was “the suddenly visible warming up in the relationship between his attorney and Ms Sharon Samushonga.

“Ms Gapare had suddenly displayed a suspiciously too familiar attitude towards Ms Samushonga, which manifested itself in unprecedented hugging in the court-room between the two ladies.”

The Law Society made a determination on the case on 28 May 2018, but the final determination of its council was only communicated to Gapare eight months later, on 5 February, 2019.

“(LSZ) Council resolved that you be found guilty of unprofessional conduct for failing to file heads of argument,” said LSZ executive secretary, Edward Mapara, in a communication to Gapare on 20 June 2018, “and generally failure (sic) to diligently pursue the client’s case and that you be asked to mitigate.”

With regard to the issue of compensation, the council resolved that Nyarota should pursue his civil remedies through the courts as the Law Society was not competent to order compensation.

Gapare has since resigned from Scanlen and Holderness and relocated to Marondera where she is now a partner in a new law firm, Pfigu, Tanyanyiwa, Gapare Attorneys.

In court Gapare instructed Advocate Fadzai Mahere to represent Nyarota, while Advocate Thabani Mpofu, instructed by Mordecai Pilate Mahlangu of Gill, Godlonton and Gerrans, represented ANZ.

After Gapare renounced agency over his case following the breaking down of the relationship between herself and her client in April 2016, Nyarota, successfully applied to the Labour Court as a Self Actor, for rescission of the July 2015 default judgment against him and for condonation of the late submission of his heads of argument by Gapare.

After Nyarota’s application succeeded Gill, Godlonton and Gerrans appealed against the judgment in the Supreme Court.

The Supreme Court, however, referred the matter back to the Labour Court, saying all avenues had not been exhausted in the lower court, where a new date for set-down is now awaited one year later.

In his complaint to the Law Society Nyarota stated that as a result of Gapare’s “negligence and other desultory actions and because of the failure on the part of Scanlen and Holderness to properly supervise her”, he, a man of substance and standing in society and one with an international professional reputation, had been prejudiced in various critical ways.

He had incurred immense financial prejudice amounting to loss of the $92 921 awarded to him by the Arbitrator in February 2012 plus interest, as well the fees to be paid to lawyers acting for both parties.

Nyarota said he had experienced severe deprivation and unendurable hardship, including starvation, while being reduced to a pauper, as the case dragged on in the courts of law over a period of six years to 2017.

Meanwhile he had been forced to dispose of personal property, including a holiday home in Nyanga and vehicles, including a Toyota Land Cruiser and a Land Rover Discovery, in order to survive over the same period of six years as well as raise funds to pay legal fees to Scanlen and Holderness and related expenses amounting to almost $18 000.00.

He said he had suffered embarrassment, defamation and shameful humiliation following his case’s so-called collapse in July 2015. Coverage of the case in ANZ’s Daily News newspaper had been calculated to portray Nyarota as an unreasonable, cantankerous or litigious person.

Finally, he had been subjected to excessive levels of anxiety and stress, a risky situation in the life of a diabetic patient, such as himself.

Nyarota said in these circumstances he believed there was merit in his demand from Gapare and Scanlen and Holderness for reimbursement of the sum total of his monetary loss, as well as the total loss to be quantified from his hardship, embarrassment and humiliation, in the event that Gapare was found guilty of negligence, as alleged by him.