In
HC596/12, which was filed out of the Bulawayo High Court, the second
respondent brought a chamber application for the registration of an
arbitral award made by Arbitrator I. Machingabi in his favour and
against the applicant on 15 August 2011.
An
order for registration was granted by the court, per NDOU J, on 17
May 2012, and, as a natural sequel to the grant of the order, a writ
was issued for the recovery of the sums of $24,593=32 and $6,290=40.
On
9 December 2013, property belonging to the applicant was placed under
attachment in execution of that writ prompting the applicant to
approach this court, in HC10643/13, on a certificate of urgency, on
11 December 2013, seeking a stay of execution.
In
its founding affidavit, sworn to by its Group Managing Director, one
Godfrey Gift Mpofu, the applicant stated that it was making an
application for condonation of the late noting of an appeal to the
Labour Court against the arbitral award. The said application for
condonation in the Labour Court was being filed “simultaneously”
with the urgent application for stay of execution being made at the
High Court.
The
urgent chamber application was placed before Honourable CHATUKUTA J
who initially refused it on the basis that it lacked urgency. The
applicant persisted, requesting audience with the Honourable Judge as
it was the firm view that the judge would be persuaded by the weight
of its argument on that point if given an opportunity to present same
orally. The learned judge obliged and set the matter down for
argument in chambers.
Confusion
was to visit the matter following a formal hearing on 24 December
2013.
What
transpired on that date is contained in the result sheets penned by
the Honourable Judge which are in the court record in that matter. On
24 December 2013, the judge initially granted the provisional order
for stay of execution, in default, as the respondents had not been in
attendance at the time set for the hearing. It would appear that the
second respondent's counsel subsequently appeared, and, following
deliberations, the learned judge recorded the outcome in the
following:-
“Judgment
granted for rescission of default judgment granted earlier.
Application was opposed but I was persuaded that Mr Ndomene
(respondent) was not in wilful default. Advocate Chingwena confirmed
that Mr Ndomene contacted him earlier in the morning seeking
confirmation of time of hearing. Mr Ndomene sent him a message
explaining (being) delayed in bail court. Mr Ndomene arrived as the
court had just made its order.
Main
Matter
Application
dismissed for want of urgency with no order as to costs (as confirmed
by Mr Ndomene).”
Unfortunately,
when the learned judge granted the provisional order in default, she
had signed the draft to signify the grant of the order. She did not
cancel the signing. This may explain why the provisional order was
typed out, signed by a representative of the Registrar and made
available to the parties. At the same time, the order dismissing the
application was also processed and made available to the parties.
With
confusion reigning supreme, the matter was again placed before
Honourable CHATUKUTA, who, on 20 January 2014, further clarified the
issue. She stated:-
“An
order was granted in default on 24 January 2013. Soon after the
granting of the order, the respondent's legal practitioner
successfully applied for rescission of judgment. The matter was then
heard as an opposed urgent chamber application. The urgent chamber
application was dismissed for want of urgency with no order as to
costs. The result sheet to this effect is on record. Order was
therefore typed in error.”
It
is remarkable that when all this was happening, the applicant was
represented by counsel and it was therefore privy to what transpired.
The
inconvenience of that simple and straight forward explanation given
by the Honourable Judge could not possibly stand in the way of the
applicant. Taking full advantage of the existence of two (2)
conflicting orders, with one patently typed in error, the applicant
filed another urgent application, in HC1729/14, still represented by
the same firm of legal practitioners. It sought an order interdicting
the first respondent, the Sheriff, from removing its property in
execution of the writ.
In
its founding affidavit, sworn to by Chiwaka Mutambatuwisi, the Group
Chief Operations Officer, the applicant chose to be selective with
the truth. Whether it was selective amnesia or not but the applicant
said nothing about how the events of 24 December 2013, as clearly
described by the judge, unfolded. Instead, Chiwaka Mutambatuwisi only
stated that its legal practitioners uplifted, on 8 January 2014, an
order for stay of execution. On 29 January 2014, they received
“another court order, under HC10643/13, which stated that the
urgent application had been dismissed.”
As
the Registrar could not clarify the existence of two (2) conflicting
orders, the second respondent had no reason instructing the Sheriff
to proceed with execution, who, equally, had no reason complying with
such instruction. To them the Sheriff does not have the power to
select which court order to respect.
This,
despite the fact that both Ms P.
Ncube
and Mr Chingwena
had been in attendance when the first order for stay of execution was
rescinded and were therefore aware that there existed no conflicting
orders here. Significantly, it is the same law firm, Mawere &
Sibanda, which represented the applicant at the hearing of HC10643/13
before CHATUKUTA J - and also prepared the present application.
The
height of dishonesty.
Now,
whether or not the court was correct in dismissing the urgent
application for want of urgency as opposed to merely refusing to hear
it is outside the scope of the present application. The applicant did
not contest the dismissal. It is its attempt to take advantage of the
administrative mistake of typing what it knows to be a non-existent
court order to the extent of even bringing an application based on a
falsehood, which is reprehensible and should not be tolerated at
all….,.
Returning
now to the merits of the matter, I have already said that this
application should not have been made at all and that it is anchored
on false pretences. I have quoted extensively above from the court
record in HC10643/13 where the presiding judge captures what
transpired. What it means, therefore, is that the application for
stay of execution was dismissed. There is nothing stopping execution
as things stand.
Counsel
for
the applicant submitted that the applicant is entitled to a final
interdict because the papers demonstrate a clear right signified by
the existence of two (2) conflicting orders.
One
would sympathise with counsel for the applicant,
being a junior legal practitioner at the law firm of Mawere and
Sibanda, who says he was handed the file only a week ago by his
superior, Mr Muza,
a partner at the firm. He was instructed to appear in court today and
present the applicant's case as appears on the papers. I say so
because Mr Muza
had
no reason, whatsoever, being the legal practitioner who prepared the
initial application dismissed by CHATUKUTA J and instructed Mr
Chingwena,
to entertain the belief that there were two (2) conflicting orders.
Counsel
for the applicant conceded that the judge was entitled, in terms of
Rule 449(1), to rescind the default judgment she had earlier made on
24 December 2013. His contention, however, was that having made that
decision, it should have been communicated to the parties, which was
not done, hence the existence of the applicants clear right to the
interdict.
The
fallacy of that argument is self-evident.
The
judge communicated the decision to rescind to the parties orally. She
went on to hear arguments on the merits of the matter with the
applicant participating fully. There can exist not the remotest of
right for the applicant to seek to interdict execution.
I
agree with counsel for the second respondent that the application
betrays unethical, dishonourable, and, indeed, deplorable conduct on
the part of the legal practitioner representing the applicant, who,
quite aware of the outcome of proceedings before CHATUKUTA J, felt he
could take advantage of the erroneous typing of a non-existent court
order (it having been rescinded), in order to snatch a provisional
order to delay execution. He did not end there, but saw it fit to
pursue this ill-advised and patently dishonest application all the
way. Obviously aware of the lack of merit, the legal practitioner
decided to hide behind his subordinate, Mr Madzedze,
and
sacrifice him at the alter of expediency….,.
In
the result, IT IS ORDERED THAT:-
1.
The application is hereby dismissed.
2.
The provisional order issued on 6 March 2014 be and is hereby
discharged.
