Masvingo City Council v Zimbabwe Urban Council Workers Union & Anor

### Preamble
1
HH 460-2012
HC 14030/12
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MASVINGO CITY COUNCIL

versus

ZIMBABWE URBAN COUNCIL

WORKERS UNION

and

THE DEPUTY SHERIFF (N.O.)

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 12 December, 2012

Urgent Chamber Application

F Mahere, with her R Makausi and

W Chirongoma, for the applicant

R R Chingwena, with him R Matsikidze,

For the first respondent

MUTEMA J:	The dispute in casu has its genesis in matters of employment. It behoves me to give a brief chronology of what transpired that resulted in the applicant finding itself in the quagmire in which it now is. The parties were embroiled in a salary review dispute which culminated in an arbitral hearing before arbitrator C Sithole. On 15 December, 2010 the arbitrator made an award in favour of the applicant’s employees, awarding them an across the board increment backdated to September, 2008. The parties were given until 15 February, 2011 to agree on the mode of payment of the arrears accruing to grades 1 to 14 from October, 2008 to date.

On 11 January, 2011 the applicant lodged an appeal against the above arbitral award with the Gweru Labour Court. That appeal was scheduled for hearing at the Masvingo Labour Court Circuit on 8 July, 2011. The applicant was in default and so its appeal was dismissed. Whether the applicant was in wilful default or not does not concern the present proceedings. On 5 August, 2011 the applicant filed an application for the rescission of the default judgment. There is a contention about the authenticity/procedural validity of the application for rescission of the judgment but that should not detain me at this juncture. That application is said to be still pending.

Because an appeal against an arbitral award does not have the effect of suspending the operation of the award, the applicant’s employees represented by the first respondent from the inception of the dispute, referred the matter to an arbitrator for the quantification of the award of 15 December, 2010. The quantification proceedings were heard by arbitrator Machekeche on 1 and 23 February, 2011. Arbitrator C Sithole had since resigned. The applicant was represented by its two legal practitioners R Makausi and K Chuma. By consent of the parties the quantification was concluded on 3 March, 2011 based on submissions by the first respondent. The amount was pegged at US$3 571 295-34.

Following quantification of the award the first respondent filed an application for the registration of the arbitral award of 3 March, 2011 by arbitrator Machekeche with this court under case number HC 4011/11. The applicant opposed the chamber application for registration of the award hence the matter ended up being an opposed court application. I was advised by both parties at the hearing that the applicant was barred for failing to file its Heads of Argument in terms of Order 32 r 238 (2b). On 9 October, 2012 my brother MATHONSI J granted the application for the registration of the arbitral award dated 3 March, 2011 by arbitrator Machekeche as an order of this court in the presence of Mr Demo of Chihambakwe, Mutizwa & Partners who are the applicant’s legal practitioners’ correspondent attorneys. This is the order upon which the writ and notices of seizure and attachment were issued out and served upon the applicant on 29 and 30 November, 2012 and the removal process which commenced on 5 December, 2012 which triggered this urgent chamber application.

What is being sought in this application is a provisional order whose interim relief is couched in these terms:

“Pending the determination of this matter, the applicants are granted the following relief:

The second respondent is ordered to stay the execution of the order granted in default in case number HC 4011/11 pending the confirmation or discharge of the final order;

The Writ of Execution granted under HC 4011 is hereby suspended;

That all Notices of Seizure or Attachment issued pursuant to the order dated 9 October, 2012 granted in case number HC 4011/11 are hereby cancelled;

The second respondent is ordered to return to the applicant any property that it has attached pursuant to the Writ of Execution granted under HC 4011/11;

For the avoidance of doubt, the second respondent is interdicted from causing the sale of any of the applicant’s property attached pursuant to the order dated 9 October, 2012 granted in case number HC 4011; and

That the respondents pay the costs of this application.”

The final order to be confirmed or discharged alluded to in para 1 of the interim order is:

“That the execution of the order in case number HC 4011/11 is stayed pending the hearing and determination of the Application for Rescission in case number LC/M5 (sic)/INT/01/11.”

Whether the matter is urgent

The main thrust, if not the sole one, of the applicant’s argument regarding this issue is that because it provides essential services to the residents of Masvingo city and beyond and that in view of the property under attachment, if stay of execution is not granted, the consequences are too ghastly to contemplate. The city will be ruined, will cease all operations and be driven into insolvency to the detriment of the residents who include the very workers who are seeking to execute the arbitral award.

The first respondent argues that if at all any urgency exists, it is self-created if account is had of the chronology of the events leading up to the current invidious position the applicant created for itself.

The often quoted case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (HC) is succinct on the definition of what constitutes urgency. The case clearly reveals that urgency is not engendered by the imminent arrival of the day of reckoning but a matter is regarded as urgent if at the time the need to act arises it cannot wait. That is the exact point the application for relief must be sought/acted upon. Urgency which stems from a deliberate or careless abstention from action till the deadline draws closer or is past is not the type of urgency contemplated by the rules of this court. The case goes on to acknowledge that in some instances, delays in acting can be inevitable but then where there is such delay, the certificate of urgency or the supporting affidavit must profer a reasonable explanation therefor.

Invariably the need to act is gleaned from the facts or history of the matter. In the instant case the quantified arbitral award was registered by this court on 9 October, 2012. Arbitral awards are registered in either the Magistrates’ Court of the High Court depending on jurisdiction, for purposes of enforcement of the registered award. It therefore cannot be misplaced to find, as I hereby do, that the need to act in casu arose on the day the arbitral award now being enforced via attachment and execution of property was registered, viz 9 October, 2012. Incidentally, it cannot be argued that the applicant did not come to be aware of this registration of the award against it on the very day because Mr Demo, a correspondent attorney of the applicant’s legal practitioners of record was actually present in court when the order was granted by MATHONSI J.

The need to act having arisen on 9 October, 2012 what did the applicant do? Did it act? It did nothing save to sit back and bay watch to await the imminent arrival of the day of reckoning, viz attachment, seizure and removal of its property, as if it did not know that this process was inevitable following registration of the award. Nowhere either in the certificate of urgency or the founding affidavit is there any explanation, let alone a reasonable one, given for the delay in acting from 9 October, 2012 up until 7 December, 2012 when this application was filed. One cannot be faulted in concluding that even the service of the notice of attachment and seizure failed to jolt the applicant into acting to protect its property. It remained inert, as if perhaps relishing in an utopian dream.

The gist of the applicant’s argument in its quest to found urgency in this case is akin to closing the stable door long after the mare had bolted. The applicant is simply pleading hardship or mercy but these cannot ground the urgency contemplated by the rules of court. The hardship is what the applicant ought to have foreseen and guarded against when the need to act arose.

The court cannot bend the rules on grounds of seeming hardship especially in casu where a legally represented litigant remained sluggard for close to two months and profers no explanation at all for such remiss conduct.

In the event, the application is devoid of the type of urgency contemplated by the rules and it is hereby dismissed on that basis with costs.

Chihambakwe, Makonese & Ncube, applicant’s legal practitioners

Matsikidze & Mucheche legal Practitioners, 1st respondent’s legal practitioners