MANGOTA
J:
A.
BACKGROUND
On
31 October, 2014 the applicant filed an urgent chamber application
with the court. The application's case number was HC 9633/14.
The
Registrar placed the application before me on the morning of 5
November, 2014. On my perusal of the application, I remained of the
view that the application was not urgent. I, accordingly,
communicated my position to the Registrar who, in turn, advised the
applicant of the same.
Filed
of record under case number HC9633/14 is a letter which the
applicant's legal practitioners addressed to the Registrar and
specifically to my clerk. The letter is dated 6 November 2014 and
bears the writer's reference TD/208/1/cn. The letter reads, in
part, as follows:-
“Attention:
Justice Mangota's Clerk
Dear
Madam
RE:
KUKURA KURERWA BUS (PVT) LTD v JAPHET LUNGA & 55 OTHERS HC
9633/14
Kindly
could you place the following minute before the Honourable Mr Justice
Mangota:
May
it please his lordship to have regard to the following:-
1.
The above referenced urgent chamber application was placed before his
lordship.
2.
His lordship is of the prima
facie
view that the matter is not urgent.
3.
The applicant had briefed concerned, Advocate L. Uriri in
anticipation of set down. Counsel has requested that we place the
following minute before his lordship:-
“Kindly
could counsel be indulged and be heard on the question of urgency.”
4.
We await his lordship's advice.
Yours
faithfully
CHIBUNE
& ASSOCIATES LEGAL PRACTITIONERS
cc:
Client.”
It
is unfortunate that the letter never reached me. It ended with the
person to whom it was addressed. The officer is no longer working
with me. The employer has given her an assignment elsewhere. I,
accordingly, have no way of ascertaining her reasons for not drawing
my attention to the contents of the letter. The system failed the
applicant in the mentioned regard.
On
the afternoon of 5 February, 2015, I received from my new Clerk the
applicant's Notice of Appeal against the decision which I made in
respect of the urgent chamber application of 5 November, 2014. In the
file was a letter which the Registrar addressed to me on 30 January,
2015. The letter made reference to the appeal which the applicant
filed with the Supreme Court under case number SC566/14. It requested
for reasons which persuaded me to rule against the applicant on 5
November, 2014. The reasons, it was stated, would assist the
applicant in arguing its appeal. These are they:
B.
MERITS
CERTIFICATE
OF URGENCY
The
certificate appears at p6 of the record. It was brief and did not
contain sufficient particulars which would have enabled the court to
make an informed decision of the urgency or otherwise of the
application. Paragraph 2 of the certificate reads:-
“The
second respondent acting on the instructions of the 1st
respondent has attached
and removed
assets of applicant from the premises pursuant to an arbitrary award
obtained against applicant by 1st
respondent.” (emphasis added)
The
certificate did not state the date on which the second respondent
attached the assets of the applicant. Nor did it mention the date on
which those assets were removed from the applicant's premises. The
impression which the certificate created was that the attachment and
the removal of the assets occurred at one and the same time. The
court knows as much as the applicant's legal practitioners do know
that the impression which the applicant sought to create would never
resonate with the rules of this court.
Section
326A of the rules is pertinent in the mentioned regard. It reads, in
part, as follows:-
“The
Sheriff or his deputy shall not –
(a)
……………; or
(b)
Remove any goods from a judgment debtor's premises following their
attachment in terms of rule 335;
Unless
he has delivered to the debtor a notice in Form 41A giving him not
less than forty-eight hours' notice of the proposed
…….. or removal:
Provided
that -
(i)
………………..;
(ii)
………………..” (emphasis added).
The
rule, it is evident, makes it mandatory for the second respondent to
notify the applicant of his intention to remove the goods. His
notification in this regard is in the form of his visit to the
judgment debtor's premises where, at the instance of the judgment
creditor, he attaches the goods of the judgment debtor whom he, more
often than not, advises of the date that he would return to remove
the attached property from the premises. The only time that the
second respondent is permitted to depart from that established rule
of procedure relates to a situation where the second respondent has
reasonable grounds for believing that the immediate removal of the
goods is necessary to prevent the debtor from concealing or disposing
of any property in order to prevent its removal. The other occasion
where the second respondent can depart from the rule's mandatory
provision is where he acts out of inadvertence.
The
applicant did not allege in the application that the second
respondent had cause to, or that he did actually, depart from rule
326A. It was, accordingly, being economic with the truth when it
allowed the legal practitioner who prepared its certificate of
urgency to state in the manner which the contents of the certificate
appeared.
It
is pertinent to state that, when parties bring cases to court, they
should lay before the court all the matters upon which they rely.
Parties are, in this regard, discouraged from suppressing information
which, in the court's view, is material to a proper determination
of the case which is before it.
APPLICANT'S
FOUNDING AFFIDAVIT
What
the court observed in respect of the certificate of urgency repeated
itself in the affidavit of the applicant in a very obvious manner.
The applicant stated, in para 7 of its affidavit, that:-
“7.
On
the 5th
of September, 2014
the High Court registered the award for execution but the issue of
the amount due and owing to the respondents remained contentious as
the judgment did not specify the amount to be paid, in addition to
the challenge by the applicant of the misdirection by the arbitrator
to make an award other 55 parties to the award.
8.
On
the 24th
October, 2014
a Notice of Removal was issued against and served on the applicant by
the 2nd
respondent attaching and placing under seizure certain property at 29
Willowvale Road, Harare.” (emphasis added).
The
applicant did not state what action, if any, it took between 5
September and 24 October, 2014. Paragraph 9 of its affidavit makes
reference to the removal of its assets. It did not state when those
were removed from its premises. Paragraph 10 stated that the
applicant filed an application with a view to having the award
suspended. The impression it created was that the application was
filed after 24 October, 2014 which is the date that the second
respondent, according to it, served it with the Notice of Removal.
The
applicant attached to its application Annexures C1–5. The annexures
are its application for suspension of operation of an arbitral award.
Its case number is LC/H/App/823/14. The application was made in terms
of section 92E(3) of the Labour Act [Chapter
28:01]
and rule 34 of the Labour Court Civil Rules.
Whilst
the application forms part of the papers which the applicant
presented before the court, it does not appear to have been filed
with the relevant court. It is not stamped with the Labour Court
registrar's date stamp. That stamp is, in the court's view, prima
facie
evidence of a matter having been filed with the court. The absence of
the stamp places a doubt in the mind of the court on whether or not
the matter which the applicant alleged had been filed with the Labour
Court had, indeed, been so filed.
Two
matters assist the court in determining applications of the present
nature. These are:-
(a)
whether or not the application is urgent – and if it is;
(b)
whether or not the applicant treated it with the urgency which it
deserved.
The
applicant stated that the second respondent served upon it the Notice
of Removal on 24 October, 2014. It did not state the date on which
the goods were removed from its premises. It left that matter in
abeyance, so to speak. It left the court in the dark on what could
have occurred on the issue which pertained to the attachment and/or
removal of its assets by the second respondent.
The
court will, for argument's sake, work with 24 October, 2014 as the
date which it said the second respondent's conduct was adverse to
its interests. Going by that date, therefore, it is evident that the
respondent remained inactive as regards what was threatening its
business interests for some six days running. It gave no reasons for
its inaction from 24 to 31, October 2014 when it filed the present
application. Its conduct in this regard was not consistent with that
of a person who saw any urgency in the matter which was before it.
NDOU J, as he then was, made some succinct remarks on what urgency,
in the manner that the rules of this court contemplate, means in
Madzivanzira
v
Dexprint
Investments
(Pvt) Ltd & Anor
2002 (2) ZLR 316 (H). The learned judge said:-
“….for
an application to be treated as urgent, not only must there be the
danger of irreparable prejudice if the matter is not dealt with
immediately but also the applicant must himself have treated the
matter as one of urgency.”
The
court associates itself with the learned judge's abovementioned
words of wisdom.
The
applicant was aware, as far back as September 2014, that the first
respondent had successfully registered the arbitral award of 5 June,
2014 with the court. It was also aware, at the time, that the
registration was aimed at the enforcement of the award. It knew,
further, that once registered, as it was, the first respondent would
likely move the court to have it enforced the challenges which it had
mounted notwithstanding. For reasons which are known to itself, the
applicant did nothing to ensure that enforcement of the award would
not take place. Its application for stay of execution was only filed
with the Labour Court on 30 October, 2014 and not earlier than the
mentioned date. What it did in this regard is certainly not the
conduct of a party which was desirous of protecting its interests
from being adversely affected.
A
party which wants to protect its interests as the applicant would
have the court believe would not have remained inactive to the threat
which was about to occur to it. Such a party would not have waited
from the beginning of September to the end of October 2014 before it
asserted its rights. In casu,
the applicant waited for the stated period before it applied to the
Labour Court for stay of execution.
In
the case of Independent
Financial Service (Pvt) Ltd v
Colshot
Investments (Pvt)
Ltd
& Anor,
2003 (2) ZLR 494 this court stated in clear and unambigious terms
that:-
“A
matter cannot be deemed urgent simply because property has been
attached.”
In
casu,
property was attached and the applicant was notified of that fact. It
did nothing. After some days, the attached property was removed from
the applicant's premises. It was then that it cried foul and filed
the present application. GOWORA J (as she then was) stated in
Gwaranda
v
Johnson
& Ors,
2005 (2) ZLR 161 that:-
“the
existence of circumstances which may in their very nature be
prejudicial to the applicant is not the only factor that a court has
to take into account, time being of the essence in the sense that the
applicant must exhibit urgency in the manner in which he has reacted
to the event or the threat whatever it may be.”
The
manner in which the applicant reacted to the event or threat does
not, by way stretch of imagination, exhibit urgency.
C.
CONCLUSION
The
court remained satisfied that the applicant did not treat it's case
with any urgency when it realised, as far back as September, 2014
that its interests were under threat. It did not act or react to the
obvious threat. The urgency which it said was present was nothing
other than self-created urgency.
The
court was, and still is, of the single view that the applicant's
application did not come anywhere near the concept of urgency which
the rules contemplate. It is for the mentioned reasons, if for no
other, that it dismissed the application.
Chibuwe
& Associates Legal Practitioners,
Applicant's Legal Practitioners
