MAKONESE J: On the
5th March 2013, I heard and determined an Urgent Application by the
Applicant in chambers and dismissed the application on the grounds that the
matter was not urgent. I have been requested to provide my written
reasons for judgment and these are my reasons.
On the 1st March 2013 the Applicant lodged an
Urgent Chamber Application seeking an order in the following terms:-
“INTERIM RELIEF
The Applicant is granted the following relief:-
1.
Pending the return day the order granted by this Honourable Court dated 18th
February 2013 be and s hereby suspended.
2.
2nd Respondent is ordered to stay execution of Applicant's property
in the interim pending the return date.
3.
In the event that 2nd Respondent has removed Applicant's property,
it is ordered that, 2nd Respondent restores Applicant possession of
its property forthwith.
4.
There be no order as to costs.”
The brief circumstances of this matter are that the
first Respondent was employed as a stores Clerk by the Applicant on a fixed
term contract for a period of six months. The contract was extended for
twelve months and after this extension Applicant refused to extend the contract
of employment. A dispute arose between the parties and the matter was
referred to an Arbitrator who ruled in favour of the first Respondent.
The Arbitrator made an Award on 25th October 2012 in terms of which
the Applicant was ordered to pay the sum of $32 209.34 being damages in
lieu of reinstatement inclusive of back-pay and payment for leave
days. Applicant, however, filed an appeal with the Labour Court within
the stipulated 21 days under case number LC/MT/140/12. Applicant
proceeded to file an application staying the registration of the award and an
order was granted by the Labour Court on the 1st day of February
2012 in the following terms:-
“INTERIM RELIEF
GRANTED
Pending the determination of this matter, the
Applicant is granted the following relief:-
1.
The Arbitral Award granted by the Honourable I. Bonda dated 21st
December 2012 being the supplementary Arbitration Award and the main Award of
the 25th October 2012 be and are hereby suspended pending the
finalisation of the Appeal filed by the Applicant on the 14th
November 2012.
2.
There will be no order as to costs.”
Inspite of the above order which has not been set
aside, the first Respondent filed an Application for registration of the Award
with this court under case number HC 6/13. It is instructive to observe
here that the Applicant confirmed that they were served with a copy of this
Chamber Application for the registration of an Arbitral Award on the 3rd
January 2013. The Applicants deliberately and consciously took a decision
not to oppose the granting of an order for the registration of the Arbitral
Award. The attitude of the Applicant on this aspect is covered in
paragraph 5.3 of the Founding Affidavit of Silbah Chido Zimwara where he
states:-
“5.3 I am also advised by my
legal practitioners of record that opposing the registration of the Arbitration
Award with this Honourable Court is procedurally impossible as the court does
not deal with the merits of arbitration awards emanating from the Labour Court
and its subsidiary legislation thus opposition does not stop the registration
on the merits of the Award.”
I find it difficult to appreciate the basis of the above
submission. If the Applicant was aware that the first Respondent sought
to register the Award notwithstanding the order granted by the Labour Court suspending
execution pending appeal why then did they not oppose the registration of the
Award and bring to the attention of the court this vital information.
What the facts clearly show is that from the 3rd
of January 2013 onwards, the Applicant was aware that first Respondent was
proceeding with the matter and seeking to enforce the award. As things
turned out the order was registered by the Honourable KAMOCHA J, on the 12th
February 2013. On these facts it is my view that the Applicant decided to
take a position not to oppose registration of the award concisions of the
consequences. The Applicant must have been aware that once the Award was
registered with this court the first respondent would be free to execute the
order. On the 1st February 2012 the first Respondent
obtained a Writ of Execution against property. The Deputy Sheriff, cited
herein as the second Respondent was instructed to remove Applicant's attached
property, on the 26th February 2013. This is what jolted the
Applicant into action. The Applicant filed the Urgent Chamber Application
on the 1st of March 2013 for the purposes of staying
execution. In seeking an order for stay of execution, the Applicant
states in the Founding Affidavit in paragraph 6.7 as follows:
“6.7
Thus 1st Respondent's order registering the award under case No. HC
06/13 granted on the 14th of February 2013 had been superceded by
the Labour Court order suspending registration of the award which order was
granted on 1st February 2013...”
One wonders why the granting of the order by this Court on
the 14th February 2013 could have been said to have been superceded
by the order of the Labour Court of the 1st February 2013. In
any event the Honourable Judge who granted the order on the 14th
February 2013 would not have been aware of the order of the Labour Court unless
Applicant who was in possession of such order had brought it to the attention
of the court. The Applicant had the opportunity to bring the order to the
attention of the court because he was given the opportunity to do so. He
was served with a copy of the Application for registration of the Arbitral
Award on the 3rd of January 2013 and decided to ignore it on the
basis that this court did not deal with the merits of the matter. I have
no doubt that this is but a lame excuse. The Applicant knew the
consequences of not opposing the registration of the Arbitral Award.
Applicant was aware that once the Award was registered it would become an order
of the court capable of enforcement. Applicant's failure to act led to
the issuance of a Writ of Execution. They only had themselves to
blame. In my view once I came to the conclusion that the Applicant's
failure to act timeously was deliberate, then the issue of urgency did not
arise. The urgency if at all was self created by the Applicants who had
all the time to take appropriate action, and failed to do so.
I must make it clear that the matter before me does not
require that I go into the merits and de-merits of the Appeal against the
Arbitral Award. Further, I may not go into the merits of the matter
before the Labour Court and the appeal in that matter. That is for that
court to decide. What I am primarily concerned with is whether the
Applicant managed to establish that this matter before me deserved to be heard
as an urgent matter. I am satisfied that from January 2013 when the
Applicant became aware that the first Respondent intended to register the
Arbitral Award they should have taken positive steps to protect their
interests. They failed to do so to their detriment. The Applicants
were represented and they had the benefit of legal counsel which they did not
utilize to their benefit. They deliberately chose to ignore the
registration of the Arbitral Award. See Kuvarega v Registrar-General
and Another 1998(1) ZLR 188 (H). In this matter CHATIKOBO J laid
down the principle that Urgency which stems from a deliberate or careless
abstension from action until the deadline draws near is not the type of urgency
contemplated by the rules. In casu I am satisfied that the
Applicant deliberately refrained from taking action well aware of the
consequences that would ensue.
In the circumstances, I dismissed the application with
costs.
Joel Pincus, Konson & Wolhuter, applicant's legal practitioners
Zimbabwe
Energy Worker's Union, 1st
respondent's legal practitioners
