KUDYA
J:
This
is an application for stay of execution.
The
first respondent was an Executive Dean in the Faculty of Commerce and
Law of the applicant. At the end of his fixed term contract as Dean,
a dispute arose on his status. The parties failed to agree on whether
he automatically assumed his former post or whether his contract of
employment was terminated.
Conciliation
failed and the matter was referred to arbitration.
On
10 January 2011 the applicant was ordered to reinstate the first
respondent as a Senior Lecturer and in the alternative to negotiate
his exit package in lieu of reinstatement. It was further directed
that they approach the arbitrator if they failed to agree on the exit
package. On 2 February 2011, the applicant noted an appeal to the
Labour Court against the arbitral award and applied for interim
relief seeking the suspension of the award pending the appeal. While
these were pending in the Labour Court, the first respondent
requested for the quantification of the exit package in lieu of
reinstatement.
On
22 August 2011 the arbitrator quantified the amount in the sum of
US$77,302.00.
On
26 September 2011 the applicant filed a combined application for
review and an appeal with the Labour Court against the
quantification.
On
27 September 2011, the first respondent, on notice to the applicant,
applied in the High Court for the registration of the arbitral award.
He served the applicant with the application for registration of the
arbitral award on that date.
The
applicant did not oppose the registration.
Instead,
aware of the application in the High Court, it filed an urgent
chamber application in the Labour Court on 5 October 2011 seeking
interim relief for the suspension of the arbitral award of 22 August
2011. The interim relief was granted by the Labour Court on 31
October 2011.
In
the meantime the award was registered by the High Court on 15
November 2011.
On
26 January 2012, the second respondent served a notice of attachment
to remove the applicant's property for execution without any notice
period.
The
applicant launched the present application on 27 January 2012. I set
it down for hearing on 1 February 2012.
The
first respondent raised four preliminary points contesting the
urgency of the matter.
I
deal with each in turn.
(i)
The first preliminary issue raised is on the authority of the
deponent to the applicant's affidavit to depose to such an
affidavit on behalf of the applicant.
Ms
Mberi,
for the first respondent, submitted that where a natural person acts
for an artificial person, he or she must establish the authority so
to act. She relied on the sentiments expressed by ADAM J in Direct
Response Marketing (Pvt) Ltd v Shepherd 1993
(2) ZLR 218 (H) at 221D-G, part of a quotation in Mall
(Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957
(2) ZLR 347 (C) at 351-352.
Mr
Mpofu,
for the applicant, relied on the same quotation to argue that the
first respondent had not established that that the applicant is not
properly before the court. The portion he relied on at 221G-222B
reads:
“The
best evidence that the proceedings have been properly authorised
would be to provide by an affidavit made by an official by the
company annexing a copy of the resolution but I do not consider that
that form of proof is necessary in every case. Each case must be
considered on its own merits and the court must decide whether enough
has been placed before it to warrant the conclusion that it is the
applicant which is litigating and not some unauthorised person on its
behalf. Where, as in the present case, the respondent has offered no
evidence at all to suggest that the applicant is not properly before
the court, then I consider that a minimum of evidence will be
required from the applicant (cf Parsons
v Barkly East Municipality
1952 (3) SA 595 (E); Thelma
Court Flats (Pty) Ltd v
McSwigin
1954 (3) SA 457 (C))."
I
am satisfied that to insist on a resolution from the applicant that
it resolved that the deponent file the founding affidavit on its
behalf would be carrying formality too far.
The
applicant is the Director Legal Services of the applicant.
Ms
Mberi
conceded
that she has in previous litigation between the parties filed
founding affidavits on behalf of the applicant. There has been
protracted litigation between the parties. I am satisfied that the
application is that of the applicant and not of the deponent to its
founding affidavit.
The
first preliminary point must fail.
(ii)
The second preliminary issue was that the application was irregular
in that on the face of it reads:
“Take
notice that the applicant, Zimbabwe Open University hereby makes an
application for interim relief pending the hearing of its appeal
currently pending before this
Honourable Court.”
(Underlining is mine for emphasis).
It
proceeds to list seven bases for the application that demonstrate
that it was an anomaly to aver in the preamble that the appeal was
pending in this court. In addition the founding affidavit clearly
demonstrates that the first sentence in the preamble was in error.
Mr
Mpofu
conceded the point but applied for condonation in terms of Rule 4C of
the Rules of Court.
Ms
Mberi
conceded
that the court could condone the error.
I
accordingly condoned the error and dismissed the second preliminary
issue.
The
last two preliminary points have unduly exercised my mind.
(iii)
The third was that the applicant was coming to court with dirty
hands.
The
dirty hands policy was set out with clarity in Associated
Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information
and Publicity and Ors
2004 (1) ZLR 538 (S).
The
rationale for the rule being that a court of law cannot connive or
condone open defiance of the law and that citizens are obliged to
obey the law and argue afterwards.
The
third preliminary point was based on the fact that when the Deputy
Sheriff went to execute on the registered High Court order, the
applicant stopped him by waving the interim relief granted by the
Labour Court suspending the operation of the arbitral award pending
appeal. The applicant proceeded to remove the items from the reach of
the Deputy Sheriff before he could attach the property.
The
contention by Ms Mberi
was that the applicant deliberately frustrated the Deputy Sheriff
from effecting a High Court order and thus acted in defiance of the
High Court order.
As
pointed out by GOWORA J in Dhlodhlo
v Deputy Sheriff Marondera & Ors
HH76/2011, it was improper to expect the Deputy Sheriff to choose
sides by interpreting the law.
It
was up to the applicant to bring an application such as the present
to stop execution rather defy the implementation of judgment that it
did not oppose.
If
the averment was correct, it is clear that the applicant had dirty
hands.
Mr
Mpofu,
however, argued that whether or not the Deputy Sheriff was stopped
from attachment was a question of fact proved by evidence of his
return of service.
In
the absence of the return of service or an affidavit from the second
respondent I am not prepared to non-suit the applicant.
I
therefore dismiss the third preliminary point.
(iv)
The last preliminary point was that the matter was not urgent.
The
meaning of urgency has been spelt out in numerous cases. Some of the
pertinent cases are Dexprint
Investments (Pvt) Ltd v Property and Investments Company (Pvt) Ltd
HH120/02
at p2 of the cyclostyled judgment quoted in full in Madzivanzira
& Ors v Dexprint Investments (Pvt) Ltd & Anor
2002 (2) ZLR 316 (H) at 318A-F; Kuvarega
v Registrar General & Anor
1998 (1) ZLR 188 (H).
Ms
Mberi
submitted
that the applicant sat on its laurels and only acted when the day of
reckoning was at hand. She contended that the applicant should have
acted on 27 September 2011 when it was served with the notice of
registration of the award.
Mr
Mpofu
made contradictory submissions on the failure to oppose registration:
(i)
The first was that the noting of an appeal in the Labour Court
against the arbitral award automatically suspended award.
(ii)
The second was that it was hopeless to oppose without first obtaining
interim relief from the Labour Court stopping the implementation of
the arbitral award.
If
the applicant believed that it was on firm footing on the first
ground, then the more reason for it to oppose registration on that
point. But as events that transpired after it obtained interim relief
shows, the applicant believed that implementation could only be
stayed by obtaining interim relief from the Labour Court. The
applicant's erstwhile legal practitioner wrote as much to the
applicant on 4 November 2011 and applicant waved the interim relief
at the second respondent on 26 January 2012.
Mr
Mpofu
did not dispute Ms Mberi's
submission that the applicant was aware of the judgment of Dhlodhlo,
supra,
handed down in Motion Court on 8 March 2011 that the Labour Court
judgment could not stop a High Court order because the later is a
court of superior jurisdiction.
Accordingly,
I agree with Ms Mberi
that at the very least, with this foreknowledge, the applicant
knowing that the first respondent was seeking registration of the
arbitral award should have diligently searched for the outcome of the
application especially after it received the interim relief it sought
in order to forestall it.
It
was aware that the purpose of seeking registration was to execute.
Armed
with the interim order, the applicant was duty bound to either oppose
the registration, which was only granted on 15 November 2011 or to
file an application such as the present one soon thereafter.
I
find that it waited until the day of reckoning precipitated by the
attachment of 26 January 2011 to stay the execution. It did not act
with diligence. It sat on its laurels and did not act when the time
to act presented itself.
Accordingly,
the urgent application is dismissed with costs for want of urgency.
Dube,
Manikai and Hwacha,
applicant's legal practitioners
Hogwe,
Dzimirai & Partners,
first respondent's legal practitioners
