Freda Rebecca Mine v Njarava & 19 Ors and Ors (HC 3455 of 2017; HH 287 of 2017; Ref HC 8028 of 2016) [2017] ZWHHC 287 (25 April 2017)

FREDA REBECCA GOLD HOLDINGS t/a

FREDA REBECCA MINE

versus

PHILIPAH NJARAVA & 19 ORS

and

DEPUTY SHERIFF OF THE HIGH COURT OF

ZIMBABWE (BINDURA)

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 24 & 25 April 2017

Urgent Chamber Application

F. Girach, for the applicant

R.G Zhuwarara, for the respondents

MUNANGATI-MANONGWA J: The applicant in this matter is the employer of the first 20 respondents. The deputy sheriff of the High Court of Zimbabwe is the 21^st respondent and he has not responded to the application. That being so, the 20 respondents shall simply be referred to as “the respondents.” The respondents together with others who are not party to these proceedings, obtained an arbitral award against the applicant on 12 February 2016 for the payment of US$625 729-50 in damages.

It is the 20 respondents who on 10 August 2016 applied to this court for registration of the arbitral award to the tune of US$205 821-09 the amount due to them. Same was contested however on 29 March 2017 this court registered the award after hearing arguments. The history of the case shows that after the initial granting of the arbitral award on 12 February 2016, applicant filed an appeal in the Labour Court against the award on 18 February 2016. It proceeded to file an application for stay of execution in the same court on 7 March 2016. On 8 November the application for stay of execution in the Labour Court was then postponed sine die when a Labour Court judge hearing the appeal decided to hear the appeal first. The appeal was partially heard and the judge postponed the matter after hearing points in limine which after some time, were dismissed, and the matter once again postponed sine die. With due respect, one wonders why the judge decided to postpone the application for stay of execution sine die when this was a pertinent application which needed to precede the appeal otherwise the relief would be overtaken by events.

That aside, the respondents armed with the registered arbitral award order, proceeded to issue out a writ in the High Court and the applicant’s assets were attached on 19 April 2017.

In response thereto the applicant did the following: it filed yet another application for stay of execution in the Labour Court under LC/H/APP/261/17 on 20 April 2017. Simultaneously on the very date the applicant filed this urgent chamber application in the High Court seeking the following interim relief.

“Pending confirmation or discharge of the provisional order, the applicant is granted the following relief:

1. That the 21^st respondents be and are hereby ordered to stay execution of the applicant’s property attached under case No. HC 8028/16 pending the outcome of the application for stay of execution pending before the Labour Court under case LC/H/LC/H/APP/261/17.

2. The applicant’s legal practitioners shall be authorised to serve a copy of this order upon all the respondents or their legal representatives.”

The application was opposed on the grounds that it is not urgent given the history of

the matter. The respondents did not rely on the time gap between 29 March 2017 when the award was registered and 20 April 2017 when this application was made but rather relied on the history of the matter. The respondents argued that when the application for registration was on filed on 10 August 2016, the applicants should have resorted to the provisions of article 36 s 2 of the Arbitration Act which allows a party who seeks for the suspension of the award to request the court to adjourn proceedings and upon application by the party claiming recognition or enforcement of the award, order the other party to provide appropriate security. Such an application has not been made. Further, Mr Zhuwarara for the respondents argued that the applicants had withdrawn the application for stay of execution in the Labour Court in 2016 at its peril, which fact the applicants disputed.

The applicants argue that the matter is urgent and if it is not heard as such the attachment will paralyze operations and can result in the eventual liquidation of the company. Further the application was only triggered by the events of 19 April 2017 when assets were attached. The applicant was thus caught “unawares” so he submitted. Advocate Girach for the applicants further argued that there being two arbitral awards, one for reinstatement and the other for damages that the applicant is challenging, the question is whether or not execution should be permitted at this stage. He further argued that the respondents did not push for the set down of the application for stay of execution in the Labour Court. He also maintained in argument that the initial application for stay of execution in the Labour Court filed in March 2016 had not been withdrawn but postponed sine die. He conceded that another application for stay of execution had also been filed in the Labour Court on 20 April 2017 the day this application was filed in this court.

The pertinent issue for me to decide is whether this matter is urgent or not. The law is clear through a plethora of cases as to what constitutes urgency. It lies in the court’s or judge’s discretion to decide whether or not a matter is urgent¹.

In the exercise of that discretion, one has to be guided by what the courts especially the superior court has decided upon, taking cognizance of the circumstances of the application before it.

It has been said time and again that, a matter is urgent when the applicant himself has so treated the matter as urgent. In the Kuvarega v Registrar General & Anor case² Chatikobo J said:

“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 cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the rules …...”

Given the facts of this matter, it is common cause that applicant filed its application for stay of execution in the Labour Court in March 2016. This was long before the application for registration of the award in the High Court. It alleges that on 8 November 2016 the said application was postponed sine die and no date has been provided for the hearing to date. Suffice to say that the registration of the award in this court only happened 4(four) months later after the alleged postponement. There was no effort by the applicants before then to ensure that the application for stay of execution is set down. Advocate Girach’s submission that the respondents should have pursued set – down does not hold as it is the applicant who had to pursue the relief in its interest.

It should have occurred to the applicants that execution would follow if the application for registration were to be granted. To then simply agree to a postponement sine die of the application for stay of execution in the Labour Court would be to consider the relief sought not to be urgent. Notably, whilst the applicant insists that it did not withdraw the application for stay of execution in the Labour Court, the applicant proceeded to apply for the same relief again in the Labour Court on 20 April 2017, a year after a similar application was made. Represented as it is, this can only mean that the applicant must have withdrawn its application as there is no logical explanation why applicant would have two applications for the same relief in the same matter pending before the same court. That the second application is filed on 20 April 2017 (the very day this application is filed) shows panic. In any case, regard being made to the fact that what was sought to be stayed is an order of the High Court, such an application to the Labour Court was ill-informed.

I find that the applicants took a lackadaisical approach to the whole matter. Execution could be seen coming. To allege that the applicant did not think that the respondent was to execute as submitted by advocate Girach would be myopic. As argued by the respondents’ legal practitioner, the applicants were aware that the award had been registered and no effort was made to enquire from the respondents for close to 3 (three) weeks whether execution was to follow.

I am alive to Makarau J (as she then was)’s sentiments in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZRL 240 H @ 244 where in conclusion she remarks that:

“In my view, urgent applications are those where if the court fails to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant….”

To my mind, this is not the case obtaining in this matter. No evidence in support of urgency has been placed before me to satisfy me that if I do not treat this matter as urgent irreversible consequences will result. The mere averment that execution will result in liquidation is not supported by any financial report, audit report or any financials. Further, that averment is premised on execution to recover US$625 729-50 the global figure of the award, yet the writ of execution refers to only $205 000-000.

As rightly remarked by Paradza J in Dexprint Investments (Pvt) Ltd v Ace Property and Investments³:

“Matters that come before the courts are without doubt dealing with prejudice or potential prejudice to the plaintiff or applicant in one way or another.

In asking that a matter be dealt with on an urgent basis one does not over emphasise the aspect of prejudice what is important to me is whether the matter can or cannot wait…”

In that regard prejudice alone cannot justify jumping the queue. An urgent matter calls for a judge to put all his/her work on hold in order to promptly give attention to the application before him or her. The court has to be satisfied that the case deserves such prompt attention due regard being made to the conduct of the applicant.

I therefore find that the applicant was not “caught unawares”, it was alive to the impending execution but did not pursue the remedies available to it timeously. The court can therefore not be called upon to make up for a non-diligent player’s actions who reckons the arrival of doomsday. Accordingly the matter is deemed not urgent and is struck off the roll of urgent matters.

Magwaliba & Kwirira, applicant’s legal practitioners

Dube, Manikai & Hwacha, 1^st-20^th respondents’ legal practitioners