NDEWERE J:
On 8 September, 2014, the first respondent obtained an arbitral award in
its favour. Four days later on 12 September, 2014 the first respondent applied
for the registration of the award. The applicant was served with the
application for registration of the award as a High Court Order but for a total
of 17 days, the applicant did nothing about that application for registration.
It only acted on the 17th day, on 29 September, 2014 by filing an
opposition which was already out of time.
In
the meantime, 18 days after the award was handed down, on 26 September, 2014
the applicant had filed a Notice of Appeal and an application for interim
relief of stay of execution in the Labour Court.
On
2 October, 2014, the first respondent's legal practitioners alerted the
applicant about its opposition filed out of time and told them about the
automatic bar and that their opposition was not properly before the court. The
first respondent's lawyers actually invited the applicant to “engage” their
client with a view to resolving the issue. The applicant did not respond to
this overture in anyway.
Consequently,
a default order registering the award was granted. The applicant has sought to argue that this
default order was granted in error because the opposing papers ought to have
been formally struck out of the record. However, no evidence was adduced to
show that this opposing document which was filed out of time was before the
judge when she granted a default judgment. I therefore do not have any legal
basis to conclude that the default judgment registering the award was granted
in error.
The
default order registering the award was granted on 2 October, 2014 and
applicant's moveables were attached on 7 October, 2014. On 8 October, 2014, the applicant applied for
stay of execution of the registered arbitral award.
The
applicant has argued that the need to act arose on 7 October, 2014, when the
applicant saw the attachment papers and it has asked the court to exercise its
discretion in its favour and stay execution of the registered arbitral award.
In
my view, the need to act arose on 2 October, 2014 when the applicant was
alerted about its opposition filed out of time, and that the papers were
therefore not properly before the court. This is because after such a warning,
the applicant must have forseen that a default judgment could be granted at any
time. However, the applicant neither “engaged” the first respondent as invited
or approached the court on an urgent basis. It did nothing for five days and
only acted on 8 October, 2014, after its motor vehicles had been attached.
The applicant's inaction
was unfortunate. A diligent party should have foreseen that once there was an
automatic bar, then default judgment in the form of registration of the award
would follow and once the award got registered, the first respondent would
execute it. So the applicant should have
approached the court on 2 or 3 October, 2014 when it was advised of the
automatic bar and not wait to be prodded by the attachment of the motor vehicles
five days later.
The
case of Chief Gampu Sithole and Gampu
Tours (Pvt) Ltd v K.C. Ndlovu &
the Deputy Sheriff of Bulawayo N.O HB 63/13 referred to by the respondent's
counsel is relevant to this case. In that case, the first respondent had
obtained a default judgment granting him leave to execute pending appeal.
Pursuant
to the leave to execute pending appeal, the first respondent instructed the
Deputy Sheriff to attach the applicant's motor vehicle. After the attachment,
the applicant filed an urgent chamber application for stay of execution pending
finalisation of its rescission application and its appeal to the Supreme Court.
The application was opposed. On p 4 of the cyclostyled judgment, the court
said:-
“A diligent parter familias would, under the
circumstances, have known that once leave to execute pending appeal has been
granted, execution of that judgment was imminent at any time and would have
immediately filed the urgent chamber application for stay of execution instead
of wallowing in wonderland, only to be prodded into action by attachment of
property….Neither the certificate of urgency nor the founding affidavit can be
said to contain any explanation, let alone a reasonable one…” .
Likewise,
in the present case, a diligent party would have sprung into action the moment
it realised it was barred and not wait to be prodded into action by an
attachment. On p 5 of the cyclostyled judgment in Chief Gampu Sithole (supra), the court said:-
“The chronology of
the case leading to the day of reckoning, including when the need to act arose
as well as justification for the delay if there is any must be clearly
explained so as to persuade the court to properly exercise its discretion in
extending the desired protection/preferential treatment”.
I
associate myself with the views expressed above that the chronology of the case
is relevant. In the present application, the applicant was never diligent in
the handling of its case. It did nothing for 15 days after the arbitral award
was granted against it and it did nothing for 17 days after the application to
register that award in the High Court was made. It also did nothing when the
first respondent advised it that it had filed its purported opposition late and
was thus automatically barred. No reasonable explanation has been given for the
delay. The only explanation is that the deponent to applicant's affidavit was
“out of town”, yet the applicant is an organisation with other officers who
could have acted on its behalf in the absence of the deponent. Even the
applicant's Heads of Argument were filed late, without any explanation.
As
correctly pointed out in Ndebele v Ncube 1992(1) ZLR 288 at 290, the law
will help the diligent and not the sluggard. Because of the lack of diligence
on the applicant's part, the court is not persuaded to exercise its discretion
in its favour.
In
Kuvarega v Registrar General 1998(1) ZLR 188 at 193, the court said:
“Urgency which
stems from a deliberate or careless abstention from action until the deadline
draws near is not the type of urgency contemplated by the rules. It necessarily
follows that the certificate of urgency or the supporting affidavit must always
contain an explanation of the non-timeous action if there has been a delay”.
As
stated above, in the present case no reasonable explanation has been given for
the failure to act timeously throughout this case.
I
am therefore of the view that the application is not urgent. It arises from self-created
urgency caused by a failure to act timeously throughout the chronology of the
case. The application does not therefore warrant any preferential treatment
against other applications.
Having
ruled that the application is not urgent, I will not proceed to deal with the
other issues raised in the application on the merits.
The
applicant shall pay the first respondent its costs.
Coghlan, Welsh
& Guest,
applicant's legal practitioners
Chambati, Mataka & Makonese, respondent's legal
practitioners
