Somnus (Pvt) Ltd t/a The Anaesthetic Clinic v Nyasha Bhake & Sheriff for Zimbabwe

### Preamble
1
HH 398-13
HC 9129/13
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SOMNUS (PVT) LTD t/a THE ANAESTHETIC

CLINIC

versus

NYASHA BHAKE

and

SHERIFF FOR ZIMBABWE

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 5 November 2013

Urgent Application

Ms P. Ncube with A.T. Muza, for the applicant

T.G. Makanza, for the 1st respondent

MATHONSI J:  In this urgent application, the applicant is seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to the Honourable Court why a final order should not be made in the following terms:-

That the order registering the arbitration award made under Case Number 766/13 be and is hereby suspended pending determination of the appeal under case number LC/H/831/13.

That the first respondent pays costs of this application on the higher scale of attorney and client.

INTERIM RELIEF GRANTED

Pending determination of this matter, the applicant is granted the following relief:

That the first and second respondents be and are hereby ordered to forthwith stop the execution of the Court Order under Case Number HC 766/13”.

The applicant employed the first respondent as a bookkeeper from 1999 but

terminated her employment contract on 10 January 2012 which termination the first respondent contested. The matter was referred to arbitration and was heard by an independent arbitrator, P. Bvumbe on 10 July 2012 in the absence of the applicant, although the applicant had, according to the arbitrator, been served with a notice of the hearing. An award was issued for the reinstatement of the first respondent without loss of salary and benefits.

When the applicant refused to reinstate the first respondent she returned to the arbitrator for quantification of damages. In the quantification award of 14 December 2012, the arbitrator noted that:

“This tribunal attempted to serve notification to the respondent on 4 December 2012 for the attendance of the quantification of damages. The return of notification indicated that the respondent refused to be served with the notice for attendance. Thus leading the tribunal to proceed in the absence of the respondent”.

The arbitrator went on to award the first respondent back pay, damages in lieu of reinstatement, punitive damages and notice pay totalling $32 400-00. After that the first respondent filed a chamber application for registration of the arbitral award in HC 766/13 which application was served upon the applicant on 1 February 2013. The applicant elected not to oppose the application for registration which was granted on 22 March 2013 resulting in a writ of execution being issued.

By letter dated 27 August 2013 the first respondent, through its legal practitioners, advised the applicant of her intention to execute against property. The letter in question reads in relevant part thus:

“Reference is made to the above matter and to your letter dated 26 August 2013 and your discussion with the writer.

We reverted to our client for further instructions. We (are) instructed that in the absence of a concrete payment plan she wishes to proceed with the execution. To that end please be advised that should we not receive a concrete and reasonable proposal by midday Friday we are instructed to instruct the Sherriff to proceed with execution.

We trust this gives you enough time to get full instructions from your client”.

It appears common cause that the applicant did not make “a concrete and reasonable proposal” or any payment plan even though it was aware of the first respondent’s desire to execute. In the founding affidavit sworn to by Chipo Zvira, the applicant’s sister in charge, she admits at para 11 being threatened with execution on 27 August 2013 meaning that the applicant was aware of that threat more than 2 months ago.

In fact at that time the applicant approached this court on an urgent basis in HC 7185/13 seeking a stay of execution, the same relief that it still seeks, again on an urgent basis now. The matter was heard by MTSHIYA J who ruled on 5 September 2013 that the matter lacked urgency. As to how the same application for a stay of execution of the same court order issued on 22 March 2013 which was ruled not urgent on 5 September 2013 by this court could mutate to an urgent one exactly 2 months later, is the kind of stuff for legends.

The applicant suggests that the matter suddenly underwent some metamorphosis when it was served with a writ of execution and its property was attached by the Sheriff on 29 October 2013, the same execution which was threatened on 27 August 2013. If that is not self-created urgency then nothing is, it is that urgency which stems from a deliberate failure to act until the hour of reckoning is nigh, which is not the urgency contemplated by the rules.

The applicant states that nothing was done to prosecute the application for stay of execution, even by ordinary application, from the time urgency was rejected by this court until it was awakened by execution, because it was awaiting documents which it had been promised by the first respondent’s counsel which documents were supposed to prove the first respondent’s case. Nothing can be furthest from the truth. Apart from the fact that the first respondent did not have to prove anything because he had a judgment to enforce, the applicant has not produced any document justifying its belief that the first respondent was amenable to a settlement.  What is on record is a letter written on behalf of the first respondent on 27 August 2013 to the effect that execution would be undertaken if the applicant did not come up with a concrete payment plan.

In fact the applicant’s lack of diligence did not start with the dismissal of its urgent application by MTSHIYA J on 5 September 2013. The record in HC 766/13 shows that the chamber application for registration of the award was served upon Ms Kanengoni a responsible person at the applicant’s clinic on 1 February 2013. Throughout the various applications filed by the applicant, nothing is said about its failure to contest the matter from that time. Surely the matter cannot suddenly become urgent 9 months later.

I conclude therefore that the matter is not urgent. It cannot possibly be.

In the result, I refuse to deal with this matter as urgent and direct that the applicant should bear the first respondent’s costs.

Mawere & Sibanda, applicant’s legal practitioners

Nyamayaro, Makanza & Bakasa, 1st respondent’s legal practitioners