Guard Alert Security (Private) Limited v Norbert Tangirai & Anor

### Preamble
1
HH-238-13
HC 5491/13
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GUARD ALERT SECURITY (PRIVATE) LIMITED

versus

NORBERT TANGIRAI

and

SHERIFF OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 17 and 26 July 2013

B. Chidziva, for the applicant

D. Kufaruwenga, for the first respondent

ZHOU J:  This is an urgent chamber application in which the applicant is seeking in the interim an order that the respondents be interdicted from executing an order of this court given in Case No. HC 9602/11 pending determination of an application for the rescission of that judgment which was filed under Case No.HC 5490/13.  The final order sought is for the setting aside of the order given in Case No. HC 9602/11.  That is the same relief which is being sought in a separate application instituted by the applicant in HC 5490/13.

The urgent chamber application is opposed by the first respondent.  Preliminarily, the first respondent objected to the application on the basis that it is not urgent and should not be heard on an urgent basis.  I heard argument on the question of urgency as well as on the merits and indicated to the parties that my determination on the question of urgency would determine whether or not I would proceed to consider the merits of the application.

The first respondent is a former employee of the applicant.  Following a labour dispute which was referred to arbitration in terms of the Labour Act [Cap 28:01] an arbitral award was rendered in his favour and against the applicant.  In September 2011 the first respondent filed an application for the registration of the award for the purpose of enforcement under Case No. HC 9602/11. The applicant filed opposing papers in that application.  An order registering the arbitral award was given by this court on 4 November 2011.

In a founding affidavit deposed to by its Group Personnel Manager, James Murakata, the applicant states that the order given in HC 9602/11 was only “brought to the applicant’s attention on 8 July 2013”.  The applicant states that the order was brought to its attention by the Sheriff, the second respondent herein, on 8 July 2013 when he attended at the applicant’s premises and attached property in execution of the judgment.  The property attached consists of seven motor vehicles.  The attached property was due to be removed on 11 July 2013.  The instant application was then filed on 9 July 2013.  The matter was set down for hearing on 11 July 2013 at 0930 hours.  On that date the first respondent’s legal practitioner requested that the matter be postponed to enable him to obtain instructions from his client in order to be able to file opposing papers.  The matter was postponed to 17 July 2013.  The first respondent undertook that execution would be held in abeyance pending determination of the instant application.  The first respondent filed his opposing papers on 16 July 2013.  On 17 July 2013 the applicant filed an answering affidavit and heads of argument.

A matter is urgent if it cannot wait to be dealt with as an ordinary court application.  In the case of Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188(H) at 193F-G, the Court stated the following:

“What constitutes urgency is not the imminent arrival of the day of reckoning; a matter is urgent if at the time the need to act arises, the matter cannot wait.  Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.  It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

In the instant case the applicant states that it only became aware of the judgment given in HC 9602/11 on 8 July 2013, some twenty months after it was granted.  That assertion, which is repeated twice in paragraphs 5 and 9 of the founding affidavit, is patently false.  After a warrant of execution was issued in December 2011 a daily publication, Newsday, published an article relating to attachment of the applicant’s property pursuant to the registration of the arbitral award in its issue of 10 January 2012.  In response to that article the applicant, through its legal practitioners, wrote to the Editor of that newspaper as well as to the first respondent’s legal practitioners.  The letter written to the first respondent’s legal practitioners is dated 11 January 2012.  It states, among other things, that the applicant’s legal practitioners had uplifted the order given in Case No. HC 9602/11.It is clear, therefore, that the applicant became aware of the judgment on or about 10 January 2012.

An appeal noted by the applicant to the Labour Court against the arbitral award was dismissed with costs in a judgment date-stamped on 25 January 2013.  The applicant did not disclose the fact of the dismissal of its appeal in the founding affidavit in the instant application.  The applicant states that it uplifted the Labour Court judgment dismissing the appeal against the arbitral award on 9 July 2013.  There is no explanation tendered as to why it would have taken it six months to discover that its appeal had been dismissed.  Indeed, no attempt is made to explain how the applicant became aware that the judgment was available to be uplifted.

There is a further feature of this case relevant to the consideration of the question of urgency.  While the applicant became aware of the judgment of this Court in HC 9602/11 in January 2012, it only filed its application for rescission of that judgment on 9 July 2013, a year and a half after it became aware of the judgment. Further, as pointed out above the applicant also seeks rescission of that judgment in the terms of the final order sought in the instant application.   No explanation has been given for the delay.  But the delay shows that the applicant did not treat the matter as deserving any urgent attention.  This court has held that determination of a matter on an urgent basis is preferential treatment extended to a party.  That is so because that party gains “considerable advantage over persons whose disputes are being dealt with in the normal course of events”.  See Dilwin Investments (Pvt) Ltd t/a Formscaff v Jopa Engineering Company (Pvt) Ltd HH 116-98 at p. 1.

Given the above circumstances, I come to the conclusion that this matter is not urgent.

The first respondent has prayed for costs to be awarded on an attorney-client scale.  The applicant sought to mislead the court by stating in the founding affidavit that it only became aware of the judgment in HC 9602/11 on 8 July 2013.  Also, the applicant deliberately failed to disclose that its appeal to the Labour Court against the arbitral award had been dismissed at the time that it instituted the instant urgent application.  Furthermore, the applicant seeks rescission of a judgment which was given in 2011 and which it became aware of more than one and a half years ago.  Generally, the conduct of the applicant in relation to this matter shows reckless disregard for the rules and procedures of court. A special order of costs is justified in those circumstances.

Mr Chidziva for the applicant submitted that should the court find that the matter is not urgent then it should simply remove the matter from the roll of urgent matters instead of dismissing the application.  That submission would have been sound were it not for the fact that the final order sought in the instant case is for the rescission of the order given in Case Number HC 9602/11.  Leaving aside the requirement of the rules that an application for the setting aside of that judgment must be by way of court application, I have considered the fact that there is another matter, Case No. HC 5490/13, in which the same relief is being sought.  Thus removing this matter from the roll of urgent matters means that there will be two matters pending before this court in which the same relief is being sought.

In the circumstances, it is ordered as follows:

The application be and is hereby dismissed.

The applicant shall pay the first respondent’s costs on an attorney-client scale.

Kantor & Immerman, applicant’s legal practitioners

Dzimba Jaravaza & Associates, first respondent’s legal practitioners