Cost Benefit Holdings (Pvt) Ltd v G. Nzuzu & 6 Ors and The Sheriff of the High Court

### Preamble
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HMT 9-19
HC 237/18
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COST BENEFIT HOLDINGS (PVT) LTD			APPLICANT

versus

G. NZUZU							1ST RESPONDENT

and

E. MADERA							2ND RESPONDENT

and

W. DIBWANI							3RD RESPONDENT

and

R. CHITATE							4TH RESPONDENT

and

L. TSAMBA							5TH RESPONDENT

and

P. MUTUME							6TH RESPONDENT

and

THE SHERIFF OF THE HIGH COURT			7TH RESPONDENT

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 24 December 2018

Urgent Application

Applicant in person

Respondents in person

MWAYERA J: The applicant approached this court on a certificate of urgency for a provisional order in terms of which are the following:

“TERMS OF THE FINAL ORDER SOUGHT

A writ of execution sued out by the 1st to 6th respondents against applicant pursuant to the court order granted in case number HC 7774/15 be and is hereby permanently stayed.

The 1st to 6th respondent to pay costs.

INTERIM RELIEF

Pending the return date, the applicants are granted the following relief

The application for stay of execution of the order and any writ issued under HC 7774/15 be and is hereby granted.

The 7th respondent and his agents be and are hereby ordered to forthwith desist any and call all execution processes and not to sell any movable property attached and/or removed pursuant to any writ of execution sued out under case number HC 7774/15.

The 7th respondent be and is hereby ordered to cause the return of movable property attached and removed from the applicant’s property pursuant to the writ of execution sued out by the 1st to 6th respondents.

1st to 6th respondents to pay costs.”

Upon considering the matter I formed an opinion that the application was not urgent as it did not meet the requirements of urgency contemplated by the rules of this court. By letter dated 25 January 2019, the applicant sought reasons why the matter was not deemed urgent. These are they:

The applicant and 1st to 6th respondents were in an employer-employee relationship. Following the termination of the employment relationship the respondents challenged the termination through a labour officer who referred the matter for compulsory arbitration. The arbitrator then issued a quantification determination. The arbitral award was registered by this court on 21 October 2015 under HC 7774/15.

Pursuant to the registration of the order with this court a writ of execution was issued and property removed for auctioning as per the certificate of urgency by an officer of this court Mrs Chipo Cynthia Kanengoni and a founding affidavit by the applicant’s Human Resources Manager one Albert Kuwaza. What is clear from the papers is that the execution sought to be stayed arises from an order issued on 21 October 2015. The court order as at the time of the application on 25 December 2018 was extant as the order was not rescinded or appealed against in the Supreme Court.

It is not every stay of execution that qualifies to be treated as urgent. The requirements of urgency are settled. Waiting for the day of reckoning and seeking redress certainly does not clothe an application for stay of execution with urgency. In the celebrated case of Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 H, chatikobo j as he then was, at page 193 F defined what constitutes urgency for purposes of the rules in the following instructive terms:

“What constitutes urgency is not only the imminent arrival of the day of reckoning a matter is urgent. If at the time the need to act arises, the matter can not wait.”

In this case the need to act arose when the arbitral award was registered in 2015. The

natural flow of litigation is that a judgment ought to be enforced as long as it is extant. An arbitral award is registered for purposes of enforcement then execution flows there from. For the applicant to leave an outstanding judgment and wait for execution, in the form of attachment and removal of property and then spring to action to stop sale or auction does not give the actions of the applicant the urgent complexion contemplated by the rules of the court. Rather it shows deliberate abstention from seeking a remedy in a manner indicative of carefree attitude.

The applicant in this case sat on its laurels and only chose to act when the day of reckoning was nigh. Self-created urgency is not the urgency which the rules cover. A party seeking relief on urgent basis ought to demonstrate that the party itself treated the matter as urgent. See Madzivanzira and Ors v Dexprint (Pvt) ltd and Anor HH 245/02. The applicant ignored a 2015 court order and only sought redress when execution was imminent after attachment and removal. The certificate of urgency and founding affidavit are silent on when the notice of attachment and day of removal occurred further showing ingenuinesses of the applicant.

The conduct of the applicant is viewed by the court as deliberate omission for the court to speculate. It does not help or assist the applicant given the impression of self-created urgency depicted by the papers filed of record. The deliberate in-action by the applicant till the day of reckoning showing the urgency is self-created is not the only problem the application faces. The applicant is seeking for stay of execution or permanent stay of execution of an extant order of this court on the basis of default order granted by the Labour Court. Such order by the Labour Court does not oust the extant court order of this court. It is settled that noting of an appeal against the decision of the Labour Court does not suspend the operation of the order. In this case there is no appeal which has been lodged in respect of the registration of the arbitral award. Further there is no stay or suspension of the arbitral award. See Joseph Tapera and 17 others v Field Spark Investments (Pvt) Ltd HH 93/13.

The award was registered for enforcement and the applicant did nothing about the order. The applicants in the face of other remedies available at its disposal chose to approach this court on urgent basis to improperly stay execution. The applicant did not appeal against the order occasioning execution neither did they apply for postponement of sale of the immovable property in execution. Instead the applicants waited until the day of reckoning was nigh, and in face of other remedies available sought for urgent relief in circumstances devoid of the requirements of urgency.

In order to determine whether or not a matter is urgent the requirements of urgency have to be looked at cumulatively and not individually. In this case the applicant was inactive till the day of reckoning. The applicant did not treat the matter as urgent and waited until last minute to seek redress on urgent basis. The circumstances of the matter are not that the applicant will suffer irreparable harm. The public policy argument presented in the face of inaction and other available remedies at the applicant’s disposal do not support the relief sought on an urgent basis. The cause of action and nature of relief sought in this case given the extant 2015 High Court order is not a competent relief for consideration on urgent basis.

The applicant waited until last minute to seek redress on urgent basis. They cannot in view of their inaction, in face of other remedies available expect the court to leave everything and entertain their matter on urgent basis. Self-created urgency stemming from deliberate inaction until the day of reckoning is not the urgency contemplated by the rules of this court.

Accordingly I decline to hear the matter as urgent, and in the result order that:-

The matter is struck off the urgent roll.

Applicant in person

Respondents in person