Fairline Investments (Private) Limited v Mangwiro Mikayiri and The Sheriff

### Preamble
1
HMA 60-18
Case No HC 524/18
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FAIRLINE INVESTMENTS (PRIVATE) LIMITED

versus

MANGWIRO MIKAYIRI

and

THE SHERIFF

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 12 & 19 December 2018

Urgent chamber application

T. Midzi, with him, F. Ndlovu, for the applicants

M. Mureri for the first respondent

No appearance for the second respondent

MAFUSIRE J:

[1]	This was an urgent chamber application for a stay of execution. It had no merit. It was an abuse of the court process. I dismissed it soon after the hearing but deferred the final disposal of the matter as the parties, upon my prompting, felt they could agree finer points and file an order by consent. They needed a day or two to do this. They never did. On the second day the first respondent’s legal practitioners filed a letter saying the parties had failed to reach a settlement and that therefore I should proceed to make my decision.

[2]	The application stemmed from my order in HC 436/18 on 18 October 2018. By that order I merely registered an order of the Labour Court for enforcement purposes in line with the Labour Act, Cap 28:01.

[3]	The brief background was that in 2017 the applicant had on several occasions been called upon to answer before a labour officer the first respondent’s claim for payment of outstanding employment dues and benefits. It had never turned up. In December 2017 the labour officer granted a default judgment in favour of the first respondent. In February 2018 the labour officer quantified the amounts due by the applicant to the respondent. The labour officer applied to the Labour Court for confirmation of his award. On 11 and 19 July 2018 the Labour Court, after noting that the applicant had been barred, confirmed the labour officer’s award in various sums under various headings.

[4]	The total amounts confirmed by the Labour Court as due by the applicant to the first respondent were in two parts:

$31 884 payable in full, or in monthly instalments of not less than $6 376-90 from July 2018; and

$21 319-99 payable in full or in monthly instalments of not less than $5 000 beginning not later than December 2018.

[5]	On 18 October 2018, upon application by the first respondent, and with no opposition from the applicant, I granted the following Order:

That the ruling of the Labour Court on the 11th day of July 2018 and 19th July 2018 be and is hereby registered as an order of this Honourable Court;

That the respondent (applicant herein) shall pay the applicant (first respondent herein) the sums of $31 884 and $21 319-99;

That the respondent shall pay the costs of this application.

[6]	I understand the first respondent went on to execute the order aforesaid. One of the applicant’s heavy duty tankers was placed under attachment on 23 November 2018. It was that attachment that prompted the urgent chamber application on 27 November 2018. It was said the stay was sought pending the determination of the application for the setting aside of my order of 18 October 2018 aforesaid.

[7]	The grounds for seeking rescission and a stay of execution were shifting or expanding with each development. In the founding affidavit it was said rescission was sought because the applicant had not been in wilful default for failing to file opposing papers to the application for the registration of the order of the Labour Court. It was said there was no reason why the first respondent had chosen to serve the papers directly on it at Chiredzi when he knew it was represented by legal practitioners who were based in Harare. It was said although the applicant had received the application on 24 September 2018, it was not until 19 October 2018 that its legal practitioners had finally prepared a notice of opposition but that it had never been filed because by 18 October 2018 the order aforesaid had already been issued.

[8]	It was said my order of 18 October 2018 was a nullity because it had taken no account of the statutory tax deductions and levies payable and that, at any rate, part of the amount was not due until December 2018.

[9]	The application was said to be urgent because the applicant’s tanker had been placed under attachment. It was said only after the attachment had the applicant become aware of my order of 18 October 2018. It was said the applicant had a right not to be deprived of its property unlawfully and that it stood to lose its truck in a few days’ time if a stay of execution was not granted.

[10]	It was primarily on the allegation that some monies were not due until December 2018 that I directed that the matter be set down for hearing. On the face of it, it seemed my order made some moneys not yet due immediately payable. But eventually this turned out to be mere puffery.

[11]	The applicant filed heads of argument and took new points. It was argued that:

by omitting the words “(Private) Limited” in his citation of the applicant in his application for registration, the first respondent had cited a non-existent party and that therefore, the resultant order that I had issued was a brutum fulmen.

the first respondent had lacked the requisite locus standi to move for the registration of the Labour Court order because by virtue of s 93(5)(b) (sic) of the Labour Act, only the labour officer has the power to do so.

[12]	During the hearing yet another set of technical points were taken, namely:

that the writ of execution issued by the first respondent erroneously claimed interest at the prescribed rate on the amounts outstanding when no such had been given by the court order;

that the real reason why the first respondent had failed to file any opposing papers to the application for registration was because its managing director had been out of the country at the relevant time, and

that at any rate, the chamber application by the first respondent to register the Labour Court was manifestly defective and therefore a nullity in that no dies induciae had been given for the filing of any notice of opposition.

[13]	The issue of urgency was argued as a preliminary point. I reserved my ruling and opted to hear argument on the merits. Mr Midzi, for the applicant, argued that the points he had taken in the heads of argument and during the hearing were points of law that a party can take at any time.  But clearly, his submissions were niggling. The applicant’s time to raise any such points had long since expired. It was now trying to re-open and argue its case on the merits when its opportunity to do so had long come and gone. In other words, the applicant had not treated its cause with any seriousness or urgency. It had exhibited a casual approach and displayed a deliberate disdain for the first respondent’s cause. The facts spoke for themselves. They were these.

[14]	In January 2017 the first respondent had called upon the applicant to answer to his claims for outstanding employment dues. The applicant had ignored the calls. In December 2017, after the applicant had been called out repeatedly, the labour officer granted a default judgment in favour of the first respondent. When the labour officer applied to the Labour Court for confirmation of the award, the applicant did nothing. He was barred. During the hearing in the Labour Court, the presiding judge, in the presence of the applicant’s then lawyer, a Mr or Ms T Zishiri, announced that the applicant had been barred. The court went on to confirm, in the presence of the applicant’s lawyer, the award by the labour officer. That was on 19 July 2018.

[15]	In September 2018 the first respondent served his application for registration on the applicant. It filed no response for almost a month. Only after an order was granted and an attachment of its property made, did it claim it had prepared a notice of opposition and was ready to file it on 19 October 2018, only to learn that an order had already been granted the previous day. That is spurious. Curiously, the alleged notice of opposition was never produced in these proceedings.

[16]	Plainly, from the moment that the labour officer made the award and quantified it, the applicant had become at risk. The clock had begun to tick. If it genuinely felt it was not liable to the first respondent, then at the very least, it should have taken action soon after 19 July 2018 the day when, in the presence of its lawyer, the Labour Court had confirmed the labour officer’s award. Then there was the application for the registration with this court. The applicant received it in September 2018. It practically ignored it.

[17]	The day of reckoning has come. This application is a spurious attempt to stave it off. But there must be an end to litigation. The first respondent has been kept out of its money from way before January 2017 when it took action. There is no basis to keep him waiting any longer, especially when it is apparent the first respondent is disdainful to both his cause and the process of the courts.

[18]	I could have simply removed the matter from the roll for lack of urgency. But I heard argument on the merits. The applicant is clearly playing for time. It has no defence to the sums of money that it was ordered to pay. At the hearing Mr Midzi conceded that upon further research by himself he had discovered that an alleged failure to take account of the statutory tax deductions and levies from an arbitral award would be no bar to have it registered for enforcement purposes. I never had to deal with the point.

[19]	Regarding the argument that part of the amount ordered by the Labour Court was not due until December 2018, Mr Midzi ought also to have conceded that he was raising it in bad faith. To begin with, he was only talking about the second amount that referred to instalments from December 2018 but completely ignored the first amount that referred to instalments from July 2018. At any rate, in respect of both amounts, including the second one that referred to December 2018, the applicant had been ordered to pay them in full. Instalments were optional. They were not a right. At no point did the applicant indicate that it had opted to pay by instalments. Furthermore, I heard the matter on 12 December 2018. Both sums of money were already due then, even if there had been an option to pay by way of instalments. Not a single instalment had been paid. Plainly, compliance with Labour Court Order was the last thing on the applicant’s mind.

[20]	The so-called points of law were all spurious. The words “(Private) Limited” may have been omitted from the citation of the applicant, but it was not being said the name ‘Fairline Investments’ was not the name by which it is generally known. No prejudice was pointed out that the applicant might have suffered solely by this omission. At any rate, it seems that was the citation in all the labour court proceedings.

[21]	The argument that by claiming interest the writ had gone outside the four corners of my order ignores the provisions of s 5 of the Prescribed Rate of Interest Act, Cap 8:10. It says every judgment debt that otherwise would not bear any interest after the date of the judgment or order by virtue of which it is due, shall, from the day on which such judgment debt is payable, bear interest at the prescribed rate, unless that judgment or order provides otherwise.

[22]	It is true that the chamber application for the registration of the Labour Court order omitted to state the dies induciae. Mr Mureri, for the first respondent, conceded the oversight. But this was a minor infraction compared to the abuse the applicant was subjecting the court process to. That omission was certainly not the reason the applicant had refrained from filing any opposition, either within the customary ten days, or within a reasonable time. It was simply disdainful and manifestly contemptuous of the whole process whereby its ex-employee was claiming from it. Under r 4C of the Rules of this Court I had no hesitation to condone this minor infraction by the first respondent.

[23]	The argument that the first respondent lacked the locus standi to move for the registration of an award in his favour was half-baked. The applicant was relying on the recent amendment to s 93(5) of the Labour Court [which the applicant carelessly cited incorrectly as s 93(5)(b), instead of s 93(5b)]. That amendment grants a labour officer, where the Labour Court confirms his or her ruling in default of appearance by the respondent, the power to approach this court or the magistrates’ court for the registration of an award.

[24]	I was not prepared to enter into the merits of that argument in any greater detail when it was so poorly crafted. Among other things, it did not deal with the provisions of s 98(14) under which the application to this court for the registration of the Labour Court order had been made.

[25]	It was upon the lack of urgency and the lack of prospects of success on the merits that I dismissed the urgent chamber application.

[26]	This is a proper case to censure the applicant in costs. This application was nothing but utter abuse. The applicant shall pay the costs of suit on an attorney and client scale.

19 December 2018

H. Tafa & Associates, legal practitioners for the applicant

Matutu & Mureri, legal practitioners for the first respondent