NDOU J: The
applicant seeks a provisional order for the stay of execution of writ of
execution issued to a provisional order under case number HC 1534/09. The provisional order has not yet been
confirmed. The terms of the provisional order
under HC 1534/09, supra, are the
following:
“Terms of the Final Order sought
It is ordered that:
1.
Pending
final resolution of the review application instituted by the applicant
[respondent in casu] under case
number HC 1524/09 the respondent [applicant in
casu] be and is hereby interdicted and restrained from carrying into effect
any of the provisions of the arbitral award by which respondent was granted
leave to retrench employees.
2.
Respondent
to pay the costs of this application.
Interim Relief granted
1.
Respondent
be and is hereby interdicted and restrained from making any payment of terminal
benefits consequent to the arbitral award of Mrs Gladys Mpemba handed down on
the 23rd September 2009.
2.
Without
derogating from the generality of the preceding paragraph respondent is
interdicted from effecting wages, stoppage and barring those identified for
retrenchment from continuing to render service to the respondent pending final
determination of the review application instituted by the applicant under case number
HC 1524/09.”
The salient facts of this matter are the following. The respondent filed a court application
under HC 1524/09. This is the main
substantive case to all these and many other peripheral cases which now seem to
clutter the real issues between the parties.
Under HC 1524/09 the respondent seeks to set aside an award by
arbitrator Mrs Gladys Mpemba, supra. The respondent's members were retrenched in
October 2009 and they were all paid their retrenchment packages all duly
approved by the Ministry of Labour. From
2009 to date, the respondent has not succeeded in setting aside arbitrator
Mpemba's award. Instead of setting down
the main case under HC 1524/09, the respondent has filed a litany of
applications. The writ of execution in
this matter arises from one such tangential application and not from the
substantive determination that the respondent's members are owed any money or
that they were unlawfully retrenched.
Applicant contends that this alone is a compelling reason for staying
execution. Case under HC 1524/09 was set
down when respondent sought judgment off a technicality and not on the
merits. Respondent obtained such order
by default. Under case number HC 1962/10
the applicant sought and obtained an order rescinding the above order by
consent. In this matter what is clear is
that after filing the main case under HC 1524/09 supra, in October 2009, the respondent thereafter filed an ex parte chamber application under case
number HC 1534/09 seeking a provisional order that the applicant be interdicted
from “making any payment of terminal benefits consequent to the arbitral award
pending final determination of HC 1524/09.”
The provisional order was granted ex
parte. It is important to note that
by the time the provisional order and the urgent chamber applicant in HC
1534/09 were served on the applicant the retrenchment packages or terminal
benefits which the application was trying to stop had already been paid out to
all the retrenched members of the respondent. The retrenchment pay-outs were
made on 1 October 2009 whilst the ex
parte application to stop payment of the same retrenchment package, HC
1534/09, was filed a whole week later on 7 October 2009 and served on 8 October
2009. In fact it is apparent that by the
time the main application in HC 1524/09 was filed and served, the retrenchment
packages had already been paid out to the individual employees. Proverbially speaking, the order under HC
1534/09 was issued well after the horse had bolted. There was a brutum fulmen. The
respondent had a duty to disclose these facts honestly and fully when he made
the said application.
Further, by receiving the retrenchment packages, the
respondent's members seem to have compromised and waived any claims for salary
pending review. For as long as the
respondent's members have retained their packaged they cannot at the same time
claim or be paid arrear salaries.
In February 2011, instead of setting down the main case under
HC 1524/09, or setting down the return date of the ex parte under HC 1534/09, the respondent filed a chamber
application under HC 318/11 for the issue of writ in the sum of US$330 883,92
as arrear salary for the period since the provisional order which had been
lying idle since 2009. This chamber
application simply ignored the contents of the opposing affidavit in case
number HC 1534/09 which show, and this has not been disputed, that the
respondent's members were paid their retrenchment packages. The applicant opposed the latter chamber
application on 1 March 2011. The chamber
application was not set down. On 2 June
2011, and without formally withdrawing the earlier opposed chamber application
under case number HC 381/11, and without communicating to the applicant, the
respondent issued yet another application under case number HC 1478/11 for the
same relief as was sought in the pending chamber application under case number
HC 381/11. It is on the basis of the
court application under case number HC 1478/11 that the writ has been issued to
attach applicant's property. This court
application pursuant to which the writ has been issued, case number HC 1478/11
was not served on the applicant's legal practitioners of record nor their
Bulawayo correspondent Messrs Job Sibanda Legal practitioners who are appointed
in all these earlier stated matters as the formal address for service for the
applicant.
The service was effected directly on the applicant. What can be gleaned from the papers in case
number HC 1478/11 is that the affidavits used to support the claim therein are
exactly the same affidavits that were filed in the earlier case under case
number HC 381/11 which is still pending and in respect of which there has not
been withdrawn or payment or tender of costs.
These affidavits were simply transported from HC 381/11 to HC 1478/11,
the cause of action is the same.
The respondent raised a point in limine that the application is not urgent. The default judgment was entered on 3 June
2011. The respondent's legal
practitioners informed, by letter, the applicant's legal practitioners on 29
July 2011. Thereafter there was dialogue
between the parties. These deliberations
yielded some limited success in that the applicant's property which had been attached
by the Deputy Sheriff was released to the applicant pursuant to a letter
addressed to the Deputy Sheriff by respondent's legal practitioners. This letter dated 5 September 2011 reads inter alia,
“Agreement has been reached between the parties that the
property you removed, following attachment, be released to the judgment debtor,
pending final determination of the urgent application filed by the judgment
debtor.”
I have given this detailed history to evince the type of
litigant that the respondent is. In
brief, the respondent will not shy away from using any legal technicality that
comes its way. The conduct of
respondent's case is characterized by non-disclosure of material facts and
unfair taking advantages of technicalities.
The applicant is reasonable when it fears the respondent dangling the
writ. The writ may be used without
notice to the applicant to the irreparable detriment of the applicant's
operations. This makes the matter
urgent. In any event, the respondent has
conceded that the writ be stayed until the return date in this
application. I do not see why this
should not be extended to the finalization of the main matter under HC
1524/09. The potential loss to the
applicant in the event of its success is likely to be irreparable as the
retrenched workers may not afford to pay back the total figure of $330 883,92. The writ of execution is based on an
unconfirmed provisional order and for over two years the respondent has avoided
setting it down for determination on the merits. With all this in mind I find that the
application is urgent and a case has been made for the interim relief sought in
the provisional order.
Accordingly, the provisional order is granted in terms of the
amended draft order.
Dube, Manikai & Hwacha c/o Job
Sibanda & Associates, applicant's legal practitioners
Messrs Majoko & Majoko, respondent's
legal practitioners
