KAMOCHA J: The applicants in this matter filed a chamber application in terms
of Order 32 Rule 236 (4) (b) of the High Court Rules which recites that:
“Where the
applicant has filed an answering affidavit in response to the respondent's
opposing affidavit but has not, within a month thereafter, set the matter down
for a hearing, the respondent, on notice to the applicant may either –
(a)
Set the matter down for hearing in terms of rule 223; or
(b)
Make a chamber application to dismiss the matter for want of prosecution, and
the Judge may order the matter to be dismissed with costs or make such other
order on such terms as he thinks fit.”
The first applicant Ityai Nkomo is the one
who deposed to the founding affidavit which was adopted by the second applicant
Nicholas Khumbula Tshili and Thembinkosi Nyathi the third applicant.
They averred that T M Supermarkets (Pvt) Ltd Lobengula Street, Bulawayo was
granted an interim order by this court under case number HC 202/13 on 24
January 2013 staying an order granted on 15 January 2013 in case number HC
4108/12.
They filed their notice of opposition on 1 February 2013. They alleged
that respondent had not taken any steps to have the matter heard and finalised
since then. In their view, the respondent seemed to have no intention of
taking any steps to finalise the matter which was now seven months old.
The applicants further alleged that since the respondent's application had been
based on the judgment of the Labour Court which had been set aside by this
court it had become ipso facto baseless and without
foundation and stands to be dismissed. They finally concluded that the
latest judgment which was granted in their favour nullified all other judgments
that went against them.
By letter dated 25 July 2013 respondent's legal practitioners pointed out to
the applicants that their interpretation of the judgment was erroneous and
advised them that the setting aside of the Labour Court judgment did not change
anything as the execution of the arbitral award had been stayed by an order of
this court on 24 January 2013.
The respondent vehemently submitted that the applicant's application was
without any merit as there was no truth in the assertion that it had no
intention of wanting to finalise the matter and had done nothing in that
regard. It then chronicled what it had done so far.
The applicants filed their notice of opposition under case number HC 2021/13 on
1 February 2013. The respondent filed its answering affidavit on 12
February 2013.
The applicants filed their heads of argument on 1 March 2013 while respondent
did so on 11 March 2013.
The respondent went on to bind and paginate the record and applied for hearing
dates by filing blank notices of set-down with the registrar of this court on
12 April 2013. But no hearing date was allocated.
Since no hearing date was allocated the respondent proceeded to file fresh
blank notices of set down again with the registrar. The record had
already been bound and paginated and all that was left was the allocation of
trial dates by the registrar in consultation with a Judge who was going to hear
the matter. The respondent submitted that there was nothing it could have
done thereafter as it was the registrar only who had the responsibility to
allocate trial dates to litigants. No litigant has the authority to do
so. Respondent submitted that the applicants had failed to appreciate and
accept that the allocation of trial dates is a domain of the registrar of this
court. They further failed to appreciate that matters are set down on a
first come first served basis. It was accordingly not true and correct
for the applicants to allege that the respondent was doing nothing about the
matter when it had in fact done all that was expected of it.
The respondent further submitted that it was also not true and correct to
suggest that the application under case number HC 202/13 was based on the
judgment of the Labour Court which had been set aside.
The correct position was that the respondent filed its notice of opposition
against the chamber application for the registration of the arbitral award on
11 December 2012. Respondent raised therein points in limine.
However, when the court granted the order of 15 January 2013, which the
applicant were seeking to enforce, it made no reference at all to the notice of
apposition and the points in limine raised therein. It was clear
that the court had not been appraised of the notice of opposition with its
points in limine. Respondent argued that there was no way in
which the court would have dealt with an opposed matter like an unopposed one
if it had been aware of the opposing papers from respondent. If it had been
made aware it would have given reasons for rejecting the points in limine
raised in the opposing papers. Having held a strong view that the court
had not had sight of the opposing papers the respondent applied for and was
granted a provisional order for stay of execution. This court finds that
it was indeed not true and correct to suggest that the application for stay of
execution was solely based on the Labour Court judgment which was set aside.
This court further holds that the assertion that judgment HB-113-13 nullified
all other judgments is without any foundation. The order clearly
stipulated that – “The order granted by the Honourable S. M. Nare, President of
the Labour Court on the 10th January 2013 be and is hereby set
aside” and nothing further. The order is not ambiguous and means what it
says. It would be improper to alter or add any contents to the court
order. See Baron v George 1994 (2) ZLR 141 (SC).
The respondent moved that the applicants be ordered to pay punitive
costs. I cannot accede to that request because in the exercise of my
discretion I hold the view that this is not a proper case to award punitive
costs. Party and party costs would be appropriated.
In the result the application fails and is dismissed with costs on the ordinary
scale.
Coghlan
& Welsh, respondent's legal practitioners
