MUREMBA J: On 8 April 2014, I
granted a final order for stay of execution in an urgent chamber application to
the following effect:
It be and is hereby ordered that:
- The execution of the writ of
execution of this Honourable Court issued under case No. HC 1225/13 be and
is hereby stayed pending finalisation of the labour dispute between the
parties.
- That first respondent pays the
applicant's costs on a legal practitioner and client scale.
I have been asked for the full
reasons for my judgment and these are they.
First respondent is a former
employee of the applicant whom the applicant dismissed from employment.
However, he was reinstated through the National Employment Council of the Motor
Industry through an arbitral award.
Despite the arbitral award being in
his favour, the first respondent refused to report for duty. He went on to
appeal in the Labour court against the arbitral award that reinstated him
arguing that it was unlawful. On the date of the hearing of the appeal which
was 18 January 2013, the applicant did not attend. Consequently, the first
respondent obtained a default judgment under case number LC/H/448/11. The
default judgment awarded him damages in lieu of reinstatement.
0n 20 January2014 the first
respondent registered the default judgment with the High court under case
number HC1225/13. However, the applicant stated that he only became aware of
the registration of the default judgment on 13 March 2014 when the second
respondent came to attach its property pursuant to the writ of execution which
had been issued following the registration of the default judgment with the
High court.
The notice of attachment shows that
the applicant's property was attached on 13 March 2013. I am of the view that
there was a typographical error on the year. It should be 2014 not 2013 as the
default judgment was registered on 20 January 2014. The attached goods were to
be removed on 18 March 2014.
On 27 March 2014 the applicant filed
an urgent application for stay of execution. Its basis was that it had made an
application for rescission of the default judgment in the Labour court in the
month of January 2014 and that although the application had been heard by
Justice L KUDYA on 25 March, they were still awaiting its determination. The
applicant stated that if the application for stay of execution was not granted
it would suffer irreparable harm as it would lose its movable property which it
uses on its day to day operations. It further stated that the balance of
convenience favoured the granting of the application since the application for
rescission of judgment had already been heard and all that was outstanding was
the judgment. It was submitted that there was no other remedy available to the
applicant.
On urgency it was submitted that
between 13 March 2014 when it received the notice of attachment, and 27 March
2014 when it filed the urgent chamber application, the applicant was not idle.
It engaged the first respondent on three occasions through its legal
practitioners with a view of settling the matter but to no avail.
In opposing the application, the
first respondent raised some points in limine in respect of the issue of
urgency which were as follows.
A)
The relief that the applicant was seeking had already been overtaken by events
as its property had already been attached and that attachment constituted
execution. So applicant could not seek to stay execution which had already
commenced.
B)
The applicant had not given an explanation for the inordinate delay in filing
the application considering that its property was attached on 13 March 2014 and
it only filed the application on 27 March 2014. The first respondent vehemently
denied that from the time the applicant's property was attached, it tried to
engage him with a view to solve the matter amicably. He challenged the
applicant to state the date, time, place and name of the applicant's
representative who had engaged him.
C)
The applicant was lying that there was an application for rescission of
judgment it had made in the Labour court. It was submitted that no such
application had been made by the applicant. The first respondent argued that
the applicant had once made an attempt to have the default judgment rescinded
but that application was dismissed under judgment No. LC/H/582/13
D)
The applicant's founding affidavit did not show that the deponent had authority
to represent the applicant nor did the deponent show that he had been
authorised to depose to the affidavit.
Before the hearing, the applicant
filed an answering affidavit addressing the points in limine. It
submitted that the application for rescission of judgment which had been
pending before the Labour court had since been granted. It attached a copy of
the judgment. It is judgment number LC/H/208/2014.The applicant argued that the
first respondent could not therefore proceed with the execution of a judgment
which had been rescinded. It was argued that the basis or foundation of the
writ of execution was no longer there.
The applicant further argued that it
was not true that the relief that was being sought by the applicant had been
overtaken by events. It was submitted that execution of a court order is a
process which goes beyond attachment of goods to include removal and sale of
the attached goods.
The applicant also submitted that it
had proof to show that after its property had been attached on 13 March 2014
and before it had filed the urgent chamber application for stay of execution on
27 March 2014, it had tried to engage the first respondent with a view to
settle the matter but the first respondent refused. The applicant attached a
letter dated 18 March 2014, signed by the first respondent and addressed to the
applicant's counsel. In that letter, the first respondent among other things
said,
“After careful considerations about
the discussions held between the plaintiff and yourselves the plaintiff has not
seen any favourable benefit in stopping the execution of the respondent's
property……. The plaintiff is not at all interested in this so called payment
plan.”
The applicant further submitted that
Jabulani Chihlaba who is the Human resources Manager had the authority to
depose to both the founding and answering affidavits on behalf of the
applicant.
On the date of the hearing which was
1 April 2014, Mr Nyandoro came with a Mr Nyambuya from his law
firm to represent the first respondent. The first respondent was also in
attendance. The second respondent did not appear but he filed a report in which
he stated that he had not yet removed the applicant's property which he had
attached. He further said that he was awaiting the outcome of these
proceedings.
Having had sight of the applicant's
answering affidavit and a copy of the Labour court judgment number
LC/H/208/2014 rescinding the default judgment, Mr Nyandoro asked for a
postponement of the hearing to 8 April 2014 to enable him to verify the
authenticity of the judgment in question. The need to verify arose as a result
of the fact that in its application the applicant had indicated that it was
expecting the labour court judgment to be out in two weeks' time. So it
had come out sooner than expected. Further to that, the first respondent was
adamant during the hearing that the applicant had not made an application for
rescission of the default judgment in the labour court. He maintained that they
had not appeared before the Labour court for the hearing of such an
application. Let me hasten to point out that during proceedings in the Labour
court, the first respondent was not legally represented. He only sought legal
representation from Mr Nyandoro for this urgent chamber application for
stay of execution.
On 8 April 2014 the first
respondent's counsel Mr Nyandoro did not come to the hearing. Instead,
he sent the first respondent with a letter advising that he had since verified
the authenticity of the Labour court judgment and had learnt that it was
authentic. He did not explain why he had not attended the hearing nor did he
explain why his partner, Mr Nyambuya with whom he had attended the first
hearing had not attended. Despite confirming the authenticity of the Labour
court judgment, Mr Nyandoro in his letter went on to state that the
applicant should withdraw its urgent application for stay of execution. Be that
as it may, we proceeded with the hearing with the first respondent now
representing himself.
In view of Mr Nyandoro's
letter which confirmed the authenticity of the Labour court judgment, the
applicant's counsel made an application that a final order instead of an
interim order for stay of execution as initially prayed for be granted pending
the determination of the appeal in the Labour court. The first respondent
consented to the granting of the final order for stay of execution pending the
determination of the appeal.
I granted the final order as prayed
for, for two reasons. Firstly, the first respondent had consented to it.
Secondly, it is the order which made sense since the application for rescission
of judgment had been granted. The interim order initially applied for would not
have made any sense considering that there had been a change of circumstances
between the time the urgent chamber application was filed and the time it was
then heard. At the time of filing, the application for rescission of the
default judgment was still pending as the parties were still awaiting judgment.
This explains why the applicant made an application for an interim order
for stay of execution. However, on the date of hearing the judgment was now
out. It would have been ridiculous to grant an interim order for stay of
execution when the default judgment on which the writ of execution was founded
on had fallen away.
The applicant's counsel also made an
application for costs to be granted on an attorney-client scale. In opposing
the application the first respondent submitted that as he was not employed he
could not afford such high costs. Having listened to the arguments I awarded
costs as prayed for by the applicant.
The applicant's counsel submitted
that the conduct of the first respondent warranted punitive costs for the
following three reasons:
Firstly, in the notice of opposition he had lied that after the applicant's
property had been attached by the second respondent on 13 March 2014, the
applicant had taken no action at all until 27 March 2014 when it then filed
this urgent chamber application. He denied that the applicant had tried to
engage him with a view to settle the matter amicably. He only admitted to this
fact after the applicant had produced the letter that he (first respondent) had
written indicating that he was not willing to settle. This is the letter which
is dated 18 March 2014. The first respondent was at a loss for words to explain
why he had lied in his affidavit on this issue.
Secondly, the first respondent had
vehemently denied in his notice of opposition that the applicant had filed an
application for rescission of the default judgment at the Labour court and that
the application had actually been heard on 25 March 2014 and that what was only
outstanding was the determination. Again, the first respondent could not
explain why he had made such misleading averments in his affidavit.
On 1 April 2014 when the urgent
chamber application was heard, the determination on the application for
rescission of the default judgment had been made. The applicant had attached
the judgment to the answering affidavit. Despite the existence of the judgment,
the first respondent maintained that no application for rescission of judgment
had been made at the Labour court. He even disputed that he had personally
appeared before the Labour court for the hearing. This prompted his counsel to
ask for a postponement to 8 April 2014 to enable him to verify with the Labour
court if the judgment was authentic. Mr Nyandoro even suggested that
both parties should prepare heads of argument for the hearing on 8 April 2014.
Thirdly, on 8 April 2014, the first
respondent's counsel having verified the authenticity of the Labour court
judgment, he did not bother to attend the hearing despite the fact that the
postponement of the hearing to that date had been at his behest. Instead of
attending the hearing he sent his client with a letter addressed to my
assistant. In that letter, there is no explanation why the legal practitioner
could not avail himself or why another legal practitioner from his law firm
could not come in his place, more so considering that at the initial hearing on
1 April 2014, he had come with a Mr Nyambuya.
I found the conduct of Mr Nyandoro
deplorable and highly contemptuous. He disregarded attending a hearing
which he had specifically asked for. He did not even have the courtesy to
liaise with the applicant's counsel about the verification he had made. The
failure to communicate caused the applicant to incur further costs as they
prepared heads of argument as had been proposed by him.
The first respondent could not
explain why his counsel had chosen to give him a letter instead of attending
the hearing or sending another legal practitioner in his place.
The first respondent could not
satisfactorily explain why he and his legal practitioner had given false
information in the notice of opposition that the applicant had not made an
application for rescission of the default judgment in the Labour court. Again,
he could not explain why they persisted with that averment at the hearing, even
in light of the judgment of the Labour court. They persisted to the
extent of asking for a postponement in order for them to verify its
authenticity and to prepare heads of argument.
I hold the view that the conduct of
the first respondent and his legal practitioner was highly reprehensible.
The first respondent presented false evidence in his affidavit and at the
hearing. His conduct was deliberate and it is obvious that he had an ulterior
motive. He wanted to proceed with the removal and sale of the applicant's
property which had been attached when he fully knew that an application for
rescission of judgment had already been made and heard. What is also
conspicuous from a reading of the Labour court judgment is that the first
respondent appeared in person for the hearing of the application for rescission
of the default judgment on 25 March 2014. Justice L. KUDYA even states in that
judgment that the parties appeared before her and made oral submissions.
I was also taken aback by Mr Nyandoro's
request in his letter wherein upon being satisfied that the Labour court
judgment was authentic, he indicated that the applicant was supposed to
withdraw its urgent application for stay of execution. I would have thought
that he ought to have indicated that first respondent was now withdrawing his
notice of opposition to the applicant's application since the writ of execution
that had been issued in his favour no longer had a leg to stand on.
To register my disapproval and
displeasure of both the first respondent and his legal practitioner's conduct
throughout the proceedings, I granted the applicant's request for punitive
costs. Litigants and their legal representatives ought to be candid with the
courts. Deliberately making untruthful statements in affidavits should never be
condoned. This is a case where if the applicant had asked for costs de bonis
propiis against the first respondent's legal practitioner I would have
granted them without any hesitation.
It is for the above reasons that I
granted a final order for stay of execution and costs on a legal practitioner
and client scale.
Gill Godlonton Gerrans,
applicant's legal & practitioners
Hamunakwadi Nyandoro & Nyambuya, first respondents' legal practitioners
