Treviglo Services (Pvt) LTD T/a TADA TEAK AND IRON V Emmerson Gwatidzo AND THE Sheriff/deputy Sheriff

### Preamble
1
HH 136-13
HC 2846/13
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TREVIGLO SERVICES (PVT) LTD t/a TADA TEAK AND IRON

versus

EMMERSON GWATIDZO

and

THE SHERIFF/DEPUTY SHERIFF

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 17 April & 3 May, 2013

J. Koto, for the applicant

A. Chambati , for the first respondent

Urgent Chamber Application

ZHOU J: This is an urgent application for stay of execution of a judgment given in Case No. HC 12328/12.  The judgment registered for the purposes of enforcement an arbitral award rendered in terms of section 98 of the Labour Act [Cap 28:01] in favour of the first respondent and against the applicant.  The award was submitted for registration in terms of section 98(14) of that Act. The salient facts which culminated in the filing of the instant urgent chamber application may be summarised as follows:

The first respondent was employed by the applicant up to 20 April 2010 when he was suspended without salary and benefits.  Following the suspension a disciplinary hearing was conducted. The first respondent was found guilty of misconduct. His employment was  terminated with effect from the date of his suspension, 20 April 2010. The matter went for compulsory arbitration in terms of the provisions of the Labour Act [Cap 28:01].  The arbitrator found in favour of the first respondent.  The applicant appealed to the Labour Court against the arbitral award.  Also, an application for the operation of the arbitral award to be suspended pending determination of the appeal was filed.

The appeal was dismissed on 5 December 2012 following the failure by the applicant to file its heads of argument in terms of the Labour Court Rules.  Prior to the dismissal of the appeal the first respondent had already approached the same arbitrator to have damages for the unlawful termination of his employment quantified.  The award quantifying the damages was rendered on 16 July 2012.  The quantification took place in default of the applicant.  It is common cause that the applicant’s erstwhile legal practitioners had been notified of the date of the hearing of the parties’ submissions on quantum.  The arbitrator made an error in adding the figures with the result that he awarded the first respondent damages in the sum of US$38 875.00 instead of US$27 045.00. The error of addition is admitted by the first respondent who addressed a letter to the second respondent notifying him of the correct amount which is recoverable through a letter dated 10 April 2013.

After the damages had been quantified the first respondent approached this court for the award to be registered in terms of s 98(14) of the Labour Act. The award was duly registered.  The error referred to above was apparently only realised by both parties after the applicant’s property had already been attached in terms of a Notice of Seizure and Attachment dated 5 April 2013. Further property was attached as recorded in a Notice of Seizure and Attachment dated 15 April 2013.  This further notice states the judgment debt to be in the sum of US$38 875.00 notwithstanding the fact that the first respondent’s legal practitioners had written to the second respondent notifying him of the error in the calculation of the damages.

The practice of making awards and judgments in instalments by arbitrators in labour matters and the Labour Court presents an untidy scenario. An award is rendered or a judgment is given ordering reinstatement or payment of damages which have not been quantified and at the same time providing that should the parties fail to agree on quantum they may approach the same arbitrator or President of the Labour Court, as the case may be, for quantification. The question that arises is whether that award or judgment is final and, therefore, appealable. In the case of an arbitral award, if an appeal is noted against it the award is not automatically suspended. The party in whose favour the award was given may thus approach the arbitrator for quantification notwithstanding the noting of an appeal against that award. That is what happened in this case.  If a judgment is one of the Labour Court an appeal is noted to the Supreme Court. The operation of the judgment is suspended.  The parties cannot approach the Court for quantification while an appeal is pending before the Supreme Court.  Also, the Labour Court judgment cannot be registered for enforcement if an appeal has been noted against it.  See Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275(S).  If the appeal fails and the parties do not agree on quantum the parties go back to the Labour Court for quantification of damages. The decision on quantification is itself appealable if there is a misdirection on a question of law.  The practice is not based on any provision of the Labour Act [Cap 28:01]. It only creates a multiplicity of proceedings, as evidenced by the instant case.

After the registration of the award the first respondent caused a writ of execution to be issued.  The applicant’s property was attached.  Some of it was removed.  The applicant filed the instant application seeking in the interim an order that its attached property should not be removed.  The final relief sought is that the writ of execution be set aside on account of the error in the quantification award and that the operation of the order of this Court given in Case No. HC 12328/12 must be suspended pending determination of an application for its rescission to be filed within ten days of the date of the order.

The first respondent objected in limine to the hearing of the application on five grounds, namely:

(1) that the matter is not urgent,

(2) that the application has been overtaken by events as removal has already taken

place,

(3) that the urgent application is based on a nullity as the applicant is already out of

time in respect of the filing of an application for rescission of a default award,

(4) that the relief sought by the applicant is vague and incompetent, and

(5) that the application is fatally defective as it fails to address the merits of the

application for reinstatement.

A matter is urgent if it cannot wait to be resolved through a court application.  In the case of Dilwin Investments (Pvt) Ltd t/a Formscaff v Jopa Engineering Co (Pvt) Ltd HH116-98, at p. 1 GILLESPIE J said:

“A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events.  This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants.  For instance where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”

The case of Pickering v Zimbabwe Newspapers (1980) Ltd 1991 (1) ZLR 71(H) at 93E makes the point that an applicant who wants a matter to be heard urgently must show that substantial injustice would result from a delay in its determination.  See also Kuvarega v Registrar 1998 (1) ZLR 188(H).

In the instant case the applicant’s property was attached on 5 April 2013.  Some of it had been removed at the time of the hearing.  A further attachment took place on 15 April 2013 after the urgent chamber application had been filed and served upon the respondents.  In my view the applicant acted without delay when it became aware of the execution. The applicant was not aware of the execution until the notice of seizure and attachment was served. I am, therefore, prepared to entertain the application on an urgent basis.

The second point in limine that the application has been overtaken by events is not sustainable.  Mr Chambati advised that only some of the attached goods have been removed.  That does not prevent the Court from dealing with the matter. The Court can order that the goods removed must not be sold but may remain under attachment, if it is satisfied that there are grounds for granting a stay of execution.

The third ground of objection is that the applicant’s application for rescission of the quantification award rendered in default is out of time. The facts of this matter must be looked at as a whole.  There is an application for the reinstatement of the lapsed appeal which is pending. There is also the fact that the award being enforced has been registered. The effect of that registration is that it is enforced as an order of this Court. The relief being sought in the instant application is that execution be stayed pending an application for rescission of the order given in HC 12328/12. I did not understand the respondent’s contention to be that that application is now out of time, as the applicant will have to file it not later than one month after he has had knowledge of it. Order 9 Rule 63(1) of the High Court Rules, 1971.  The submission that the application is founded upon a nullity must therefore fail.

The fourth point in limine is that the relief being sought is incompetent. The first respondent’s contention is that the words “pending finalisation of this matter” in the interim relief being sought make the relief being sought incompetent for being vague and uncertain.  It is clear that that formulation is based on Form 29C of the Rules of this Court. The submission that that expression renders the relief being sought incompetent is not sustainable.  The provisional order is subject to confirmation. The interim relief is therefore being sought pending the confirmation or discharge of the provisional order.

The contention that the application is fatally defective for “failing to address (the) merits of its purported application for reinstatement” is not based upon the correct principles applicable in an application for a stay of execution.  In fact, it was clear that the submissions made on behalf of the first respondent did not address the critical issue of whether or not the application met the requirements for execution to stay. The objection must fail on that basis.  I will, therefore, proceed to deal with the merits of the application.

The principles which apply to an application for stay of or the setting aside of execution are settled. In the case of Mupini v Makoni 1993 (1) ZLR 80(S) at 83B-D, GUBBAY CJ (as he then was) said:

“Execution is a process of the court, and the court has an inherent power to control its own process and procedures, subject to such rules as are in force.  In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands. The onus rests on the party seeking a stay to satisfy the court that special circumstances exist. The general rule is that a party who has obtained an order against another is entitled to execute upon it.  Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for in such instances the carrying of it into operation could render the restitution of the original position difficult.  See Cohen v Cohen (1) 1979 ZLR 184(G) at187C; Santam Ins Co Ltd v Paget (2) 1981 ZLR 132(G) at 134G-135B; Chibanda v King 1983 (1) ZLR 116(H) at 119C-H;  Strime v Strime 1983 (4) SA 850(C ) at 852A.”

To the above cited authorities I add the cases of Muchapondwa v Madake & Ors 2006 (1) ZLR 196(H) at 199C-E;  Chioza v Independent Property Development (Pvt) Ltd & Anor HH 76-94 at p 3;  Murimbechi v Townsend HH 185-90.

It is trite, too, that the discretion referred to above must be exercised judicially.

The applicant blames its erstwhile legal practitioners, Maganga & Company, for failing to act diligently in executing its instructions. A letter was written to Maganga & Company by the applicant’s current legal practitioners inviting them to give an explanation of their inaction in affidavit form.  The letter was delivered on 16 April 2013.  No response was received from a Mr T. Sangarwe who was handling the applicant’s cases in that law firm.  It is common cause that the applicant’s appeal against the first arbitral award was dismissed as a consequence of the failure by his former legal practitioners to file heads of argument. They took no steps to secure the reinstatement of the appeal. The same legal practitioners failed to attend to the arbitration proceedings on quantification. They failed to seek rescission of the award relating to quantification of damages. When the application for the arbitral award to be registered was made to this court they did not file any response to it. They even failed to notice the glaring error of addition in the quantification award.

On the date of the hearing of this application on 17 April 2013 the applicant produced three sets of applications filed on its behalf. The first was a court application filed in the Labour Court seeking condonation of its failure to file heads of argument in its appeal and reinstatement of the dismissed appeal.  It was filed on 16 April 2013.  The second application which was filed on 17 April 2013, was for the suspension of the operation of the arbitral award pending determination of the application for reinstatement of the appeal. A third application was filed with the arbitrator for the setting aside of the quantification award which was given in default of the applicant.

It seems to me that this is an appropriate case for execution to be stayed.  Real and substantial justice dictates that a stay of execution be granted.  In coming to that conclusion I have considered the totality of the facts and circumstances of the case including the fact that the amount awarded by the arbitrator is wrong.  That fact is admitted by the first respondent.  The difference is significant. It amounts to more than ten thousand United States dollars.  The second respondent did not reduce the amount for the purpose of execution although a letter was addressed to him by the first respondent’s legal practitioners notifying him that the amount awarded by the arbitrator is incorrect.  The goods attached are therefore based on a wrong figure which was awarded and is stated in the writ of execution.  I have also taken into account the irreparable harm to the applicant if execution is allowed to proceed and he eventually succeeds in the appeal in respect of which an application for reinstatement of the dismissed appeal has already been filed.  In my view, this is not an appropriate case for the applicant to be visited with the consequences of its legal practitioners’ lack of diligence.  Applicant was misled into thinking that the legal practitioners were executing its mandate.  After noting an appeal the erstwhile legal practitioners failed to file heads of argument.  The filing of heads of argument is a matter for the legal practitioner, as they are only filed if a litigant is to be legally represented at a hearing.  See r 19 (1) of the Labour Court Rules, 2006. The applicant’s former legal practitioners failed to explain the failure to file heads of argument in the appeal as well as their other failures as detailed above despite being invited to do so.

In the draft provisional order the applicant under the terms of the final order sought prays that the operation of the order given in Case No. HC 12328/12 must be suspended pending determination of an application for rescission which must be filed within ten days of the date of the order. I do not believe that the applicant should wait for the confirmation of the provisional order if it genuinely intends to apply for the setting aside of that order.  Instead, the applicant should file the application upon the granting of the provisional order.

In the result, the provisional order is granted in the following terms:

TERMS OF FINAL ORDER SOUGHT:

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

The writ of execution issued in Case No. HC 12328/12 be and is hereby set aside on the basis of the error in the arbitration award and order of this Court registering that award.

The first respondent shall pay the costs of this application.

INTERIM RELIEF GRANTED:

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

The second respondent shall not remove the applicant’s property attached in terms of the writ of execution issued in Case No. HC 12328/12 and where any goods have been removed such goods shall not be sold but shall remain under attachment in the custody of the second respondent or his agent.

The applicant shall institute proceedings for the setting aside of the order given in default in Case No. HC 12328/12 within five days from the date that this order is granted.  Should the applicant fail to institute such proceedings within five days this provisional order shall lapse.

SERVICE OF PROVISIONAL ORDER:

The applicant’s legal practitioners are granted leave to serve this provisional order upon the respondents or their legal practitioners.

Koto & Company, applicant’s legal practitioners

Chambati & Mataka Attorneys, first respondent’s legal practitioners