The
parties have been engaged in protracted litigation dating back from
2002 over allegations by the applicant of sexual harassment by the
respondent's then President and Chief Executive Officer. The
applicant's employment with the respondent was terminated after the
allegations. The applicant challenged the termination. The dispute
was referred to arbitration culminating in an award in favour of the
applicant on 24 March 2014. The respondent appealed against the
award. Quantification of damages was pronounced on 27 July 2014.
The respondent thereafter appealed against the quantification. The
respondent at the same time, applied to this court in case number HC
8795/14 to have the award set aside. The award was set aside on 11
February 2015 in case number HH 125/15. Dissatisfied with the
judgment in case number HH 125/15, the applicant filed the present
application for leave to appeal to the Supreme Court.
The
respondent raised a number of preliminary issues. The first issue
was that the applicant had not filed a certificate of urgency as is
required under the High Court Rules. The second issue was that I was
not properly seized with the application as is required in terms of s
34(2)(d)
of the High Court Act [Cap
7:06] as I am not the judge who determined the matter in case number
HH 125/15. The last issue was that the applicant had not laid a
basis for the matter to be heard on an urgently. She was relying on
her personal circumstances to establish urgency. She had not alluded
in any manner that she was to suffer irreparable harm. The applicant
abandoned midstream the first two issues and hence the question of
urgency remained the only issue for determination.
The
applicant submitted that the urgency of the matter arose from the
fact that she is of poor health and requires urgent medical attention
in the United States. The matter must therefore be heard urgently as
she is not aware of how long she will be away. Further, she
submitted that she was not sure of the outcome of the medical
procedures she is to undergo in the United States. In the event that
she does not survive the procedure, she will not have enjoyed the
benefits of the award made in her favour.
The
requirements for urgency are trite. The applicant must establish
imminent danger to existing rights and the possibility of irreparable
harm. (See Triple
C Pigs & Anor v Commissioner-General, ZRA
2007 (1) 27; Document
Support Centre (Pvt) Ltd v Mapuvire 2006
(2) 240 (H)). As stated by GOWORA J in Triple
C Pigs & Anor v Commissiner-General, ZRA
(supra)
at 30G-31D
“Naturally every litigant
appearing before these courts wishes to have their matter heard on an
urgent basis, because the longer it takes to obtain relief, the more
it seems that justice is being delayed and thus denied. Equally, the
courts in order to ensure delivery of justice, would endeavour to
here matter as soon as is reasonably practicable. This is not always
possible, however, and in order to give effect to the intention of
the courts to dispense justice fairly, a distinction is necessarily
made between those matters that ought to be heard urgently and those
to which some delay would not cause harm which would not be
compensated by the relief eventually granted to such litigant. As
courts, we therefore have to consider, in the exercise of our
discretion, whether or not a litigant wishing the matter to be
treated as urgent has shown the infringement or violation of some
legitimate interest, and whether or not the infringement of such
interest, if not redressed immediately, would not be the cause of
harm to the litigant which any relief in the future would render
brutum fulmen.
I would however, in closing wish
to quote respectfully the remarks of GILLISPIE J in General
Transport & Engineering (Pvt) Ltd & Ors v Zimbank
1998 (2) ZLR 301 (H) at 302. Quoting from his own remarks in Dilwin
Investments (Pvt) Ltd v Jopa Enterprise Co Ltd
HH 116-98, the learned judge stated that:
“A party who brings proceedings
urgently gains a considerable advantage over persons whose disputes
are being dealt with in the normal course of events. This
preferential treatment is only extended where good cause can be shown
for treating one litigant differently from most litigants. For
instance where, if it is not afforded, the eventual relief will be
hollow because of the delay in obtaining it.””
It
is apparent from the above that good cause must be shown for the
applicant to dislodge other litigants who are in the queue to catch
the express train to the Supreme Court. Would an applicant's
personal circumstances as articulated suffice as good cause where so
many other litigants suffer from life threatening ailments, some from
life threatening economic hardships? Would the applicant's
conjecture that she may not survive the medical procedures be the
urgency that is envisaged? I believe not. It appears to me that the
urgency which is envisaged is the urgency arising from facts of the
case itself and the very nature of the relief sought. MAKARAU J (as
she then was) observed in Document
Support Centre (Pvt) Ltd v Mapuvire (supra)
on p243F that:
“Without attempting to classify
the causes of action that are incapable of redress by way of urgent
application, it appears to me that the nature of the cause of action
and the relief sought are important considerations in granting or
denying urgent applications.”
Each
and every person who has filed a matter before these courts has his
or her own peculiar personal circumstances which may attract the
court's sympathy. However, no matter how compelling the personal
circumstances may be, the court is not enjoined in determining the
question of urgency to consider them outside the confines of the
nature of the case and the relief sought.
Further,
the applicant has not established that in the event that the
application is not heard urgently, she is likely to suffer
irreparable harm. The applicant is able to proceed with this
application on the merits after joining the queue. In the event that
she succeeds in her application for leave to appeal and in the appeal
itself, she is still entitled to her award.
It
is therefore my view that the application is not urgent.
However,
the matter does not end here. The applicant requested that I refer,
I assumed this matter, to the Constitutional Court. I say “assume”
because the applicant was not able to articulate what it is that she
wanted referred. In her submissions, she stated that her dispute had
taken long to resolve and therefore her rights were being violated.
I was at pains to understand the applicant's submissions. The
respondent was equally constrained to respond, suffice to submit that
the applicant had not made a case for the matter to be referred to
the Constitutional Court. It was not clear which matter she wanted
referred. In one breath she submitted that she wanted this
application referred. In another breath she said she wanted the main
matter referred. In the absence of a clear indication of exactly
what she wanted, I was of the view that there was no issue before me
to refer to the Constitutional Court.
Finally,
the respondent prayed for costs on an attorney-client scale. It was
submitted that the application was frivolous and vexatious. It was
further submitted that between December 2014 and 13 January 2015, the
applicant had filed six applications in the Labour Court and in this
Court. In all those cases, the respondent has been put out pocket in
order to defend the applications. The present application is an
addition to the list.
The
applicant submitted that she was entitled to protect her rights as
best as she can. The applications alluded to were filed with the
intention to do so.
Whilst
the applicant is indeed so entitled, it is apparent that the present
application is frivolous as it is unfounded. I am inclined to agree
with the respondent that the multiplicity of the applications and
actions is indicative of vexacity.
On
18 June 2014, the applicant issued summons in this court in case
number HC 4986/14 claiming damages for shock, pain and suffering and
post traumatic distress arising from the sexual harassment. This was
so notwithstanding the fact the arbitral award provided for damages
that the applicant suffered as a result of the sexual harassment.
The respondent did not file its appearance to defend timeously. It
then filed an application for condonation for late filing of
appearance to defend. On 16 September 2014, the applicant filed an
urgent chamber application in case number HC 8163/14 requesting
urgent hearing of the application for condonation. The application
was granted. In paragraph 11 of the founding affidavit, she stated
as follows:
“I have collapsed thrice and
been taken to Michael Gelfand 24 hours Emergency Rooms on 3rd
July 2014. On the second occasion I was rushed to Trauma Centre
(sic),
24 hour Emergency Rooms on the 23rd
of August 2014 and on the 6th
of September, 2014. On the 8th
of September 2014 I was again taken ill and was treated at Trauma
Centre, 24 hour Emergency Rooms. I had a sleepless night on the 14th
of September 2014 and was violently sick and was transported to
Michael Gelfand 24 hours Emergency Rooms on the 15th
of September 2014 and was treated whilst on bed C2.- See Annexure
“D2”-Annexture “D5”.”
In
the present application in paragraph 21 of the founding affidavit,
the applicant averred that:
“I have collapsed twice and
been taken to Michael Gelfand 24 hours Emergency Rooms on 25th
of December 2014. On the second occasion I was rushed to Trauma
Centre (sic),
24 hour Emergency Rooms on the 28th
of December 2014 and the following procedure were carried
out……………………………………………….************
On the 7th
of February 2015 and was treated whilst on bed 4.- See Annexure
“D2”-Annexture “D5”.”
In
the urgent chamber application in case number HC 5/15 filed on 2
January 2015 the applicant sought the urgent hearing of case number
HC 11087/14 and case number HC 11088/14. The first case is a chamber
application for condonation of late application for leave to appeal
against decision in case number 4986/14). The second case is a
chamber application for leave to appeal against the decision in HC
4986/14.
The
applicant filed yet another urgent chamber application in the Labour
Court on 13 January 2015 in case number LC/H/App/22/28/15. The
applicant was seeking an order for the urgent hearing of cases in
LC/H/APP/15/15 and LC/H/APP322/14 (being the appeals filed by the
respondent against the arbitral award and the quantification). The
applicant relied on similar averments as in the present matter as a
basis for urgency in case number HC 5/15 and case number
LC/H/App/22/28/15. The applicant did not dispute that the urgent
chamber application in the Labour court was a rehash of the urgent
chamber application in this court in case number HC 5/15.
The
applicant filed yet another application in the Labour Court
(Application to dismiss the application of an Arbitral Award Pending
Finalisation of Appeal for Want of Prosecution (sic))
on 8 January 2015.
The
application that she made during the hearing of this application to
have an unclear matter referred to the Constitutional Court, equally
exhibited vexacity.
The
urgent chamber applications are preceded by the applicant receiving
urgent medical attention. In each case the applicant lives another
day to file another application. The respondent has been responding
to the avalanche of applications incurring costs in the process.
The
harm caused by these multiple applications is not only to the
respondent. It extends to the administration of justice. The courts
are being laden with unfounded applications. The applicant exhibited
a good understanding of the law despite of being a self-actor. She
in fact filed heads of argument (in which she enunciated principles
of law supported by case authorities) with case number HC 05/15 and
the present case. The heads of argument would be the envy of some
legal practitioners. However, if left unabated, the harm that she is
causing will be immeasurable. She risks, at the rate that she is
going, having an order for perpetual silence issued against her.
In
the result, this, in my view is a case that warrants an order for
punitive costs.
It
is accordingly ordered that:
-
The
application that the matter be heard on an urgent basis be and is
hereby dismissed.
-
The
application on the merits is to proceed as an ordinary court
application in terms of the High Court Rules.
-
The
applicant be and is hereby ordered to pay costs on an
attorney-client scale.
Gill,
Godlonton & Gerrans,
respondent's legal practitioners
